A federal court in the District of Columbia has dismissed challenges to the U.S. Army Corps of Engineers’ (Corps’) determination that wastewater pipeline construction in southern Arkansas was authorized under two nationwide discharge permits. Ouachita Riverkeeper, Inc. v. Bostick, No. 1:12-cv-803 (D.D.C. memorandum opinion 4/10/13).

According to the court, “Subject to pre-construction notification, nationwide permit [NWP] 7 authorizes structures or work in navigable water of the United States for activities related to the construction of outfall structures and associated intake structures that are in compliance” with the Clean Water Act’s national pollutant discharge elimination system. NWP 12 “authorizes ‘[a]ctivities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than ½ acre of waters of the United States.’”

Proponents of the pipeline and outfall notified the Corps of their intent to construct them under the authority of the two permits. While the Corps agreed that the permits authorized the work, it required mitigation for 16.6 acres of wetlands by purchase of credits from a specified mitigation bank because it found that clearing for a right of way would convert forested wetlands to less valuable wetlands. Plaintiff environmental organizations sued the Corps, claiming improper verification that the NWPs authorized the work.

Finding that plaintiffs did not seriously controvert defendants’ showing that NWP 7 properly authorized installation of a contested diffuser on an outfall, the court dismissed that claim, then addressed plaintiffs’ claim that NWP 12 did not apply because the work would cause the “loss” of more than a half-acre of wetland. They based their argument on the Corps’ finding that some wetland would be converted to lower-grade wetland. The court held that “loss” of wetlands need not include “impact” on wetlands and that the Corps properly distinguished between loss of function and loss of waters themselves under the applicable regulation. Finally, because the permit calls for the land to be returned to pre-existing contours and elevations after the pipe installation, the court determined that wetlands beneath which the pipeline would run would not be lost.