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While the Corps acknowledges that the lower acreage limits and pre-construction notification thresholds may require "certain activities that were previously authorized by NWPs" to "require individual permits, and that it takes more time to authorize those activities," 67 Fed. Reg. at 2022, the limits and thresholds, as well as all the new or modified NWPs, were "necessary to ensure compliance with section 404(e) of the Clean Water Act."
Congress enacted the CWA to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To that end, the CWA prohibits a party from discharging pollutants, such as dredged or fill material, into navigable waters of the United States. Under the CWA, however, the Corps is authorized to allow such discharges through the issuance of permits, both general and individual. The purpose of general permits, including nationwide permits ("NWP"), issued under Section 404(e) of the CWA is to allow projects that cause minimal environmental impact to go forward with little delay or paperwork. 33 C.F.R. § 330.1(b) (explaining that general permits are "designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts"). If a proposed activity meets the conditions for general permits, it need not be subjected to the individualized permit process through which the Corps makes determinations on discharges on a case-by-case basis. In these three consolidated cases, the plaintiffs challenged NWPs issued under Section 404(e) of the Clean Water Act ("CWA") by the defendant U.S. Army Corps of Engineers ("Corps") in March 2000 and January 2002. The plaintiffs claimed that 1) that the Corps did not provide adequate notice and opportune to comment before issuing the NWPs challenged by plaintiffs and that the NWPs and GCs are not the logical outgrowth of the proposals; 2) that the Corps acted arbitrarily and capriciously and abused its discretion in performing a regionalized analysis of the "minimal adverse environmental effects" the NWPs would have on the environment; 3) that the Corps did not provide a reasonable basis for the acreage limitations and pre-construction notification requirement for NWPs; 4) that the restrictions in the use of NWPs in the 100-year floodplains were arbitrary and capricious and are not consistent with the Corps' authority; 5) that the regulation of aggregate and hard rock/mineral mining as activities "similar in nature" is arbitrary and capricious; 6) that the Corps did not have the statutory authority to condition NWPs to assure protection of water quality; 7) that the utilization of vegetated buffers in mitigation as referenced in GC 19 is not reasonably related to the disposal of dredged and fill material and, therefore, is beyond the Corps' authority; and 8) that the issuance of NWP 29 is arbitrary and capricious. The Corps counters, in essence, that the issuance of the replacement NWPs and GCs and the re-issuance of the NWPs and GCs in 2002 were in accordance with Section 404 of the CWA, were proper under the APA, and were neither arbitrary and capricious, nor contrary to law.
Did the NWPs and GCs issued by the Corps violate the APA in their regionalized analysis of the "minimal adverse environmental effects"?
The Court held that a review of the record makes it clear that the Corps has adequately explained its reasoning behind the issuance and re-issuance of the NWPs and GCs. While the Corps' reasoning may be unnecessarily lengthy, it is reasonable, supported by the acts, and its explanation clearly and adequately lays out the "path" of the Corps' logic and hat logic has been adequately explained. Accordingly, the Court found that the Corps did not act arbitrarily or capriciously, or abuse its discretion, in performing a regionalized analysis of the "minimal adverse environmental effects" the NWPs would have on the environment.