Sierra Club v. U.S. Army Corps of Eng’rs (P)

In verifying that Mountain Valley Pipeline can proceed with construction under the terms and conditions of Clean Water Act Nationwide Permit 12, the U.S. Army Corps of Engineers lacked statutory authority to substitute its own special condition  “in lieu of” a different special condition imposed by West Virginia as part of its certification of NWP 12.

Absent completion of the notice-and-comment procedures required by the Clean Water Act, a state cannot waive a special condition previously imposed as part of its certification of a nationwide permit. Because West Virginia didn’t follow its federally mandated notice-and-comment procedures in waiving another special condition the state imposed as part of its certification of NWP 12, that condition remains a required — but, in this case, unsatisfied — condition of the nationwide permit.

Agency’s verification and reinstated authorization vacated.

Sierra Club v. U.S. Army Corps of Eng’rs (P), No. 18-1173, Nov. 27, 2018. 4th Cir. (Wynn) from USACE.



Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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