## Facts

- The Clean Water Act (CWA) gives the U.S. Army Corps of Engineers (Corps) authority to regulate discharges of dredged or fill material into waters of the United States through permits under CWA § 404.
- Section 404(a) provides for individual permits, which require project-specific review and procedural steps such as notice and an opportunity for public input.
- Section 404(e) authorizes the Corps to issue general permits, including nationwide permits, only for categories of activities the Corps determines will cause only minimal adverse environmental effects individually and only minimal cumulative adverse effects.
- After jurisdiction over “waters” expanded through case law, Congress added § 404(e) to allow expedited permitting for genuinely minor categories of discharges.
- The Corps issued Nationwide Permit 21 (NWP 21) to cover certain surface coal mining discharges (including valley fills) where the mining operation was authorized under the Surface Mining Control and Reclamation Act (SMCRA).
- Unlike the typical concept of a nationwide permit as a categorical authorization without further analysis, NWP 21 required pre-construction notifications and additional, site-specific review by Corps district engineers before activities could proceed.
- Ohio Valley Environmental Coalition, Coal River Mountain Watch, and Natural Resources Defense Council sued Corps officials (including the Huntington District engineer) challenging NWP 21 under the CWA and the National Environmental Policy Act (NEPA).
- The Corps and industry intervenors argued threshold defenses, including lack of standing and ripeness, and also defended NWP 21 on the merits.
- The court addressed cross-motions for summary judgment on whether NWP 21 complied with the CWA’s limits on nationwide permits and whether the Corps satisfied NEPA’s environmental-review duties.

## Issues

1. Whether the plaintiffs had Article III standing, and whether their challenge to NWP 21 was ripe and reviewable under the Administrative Procedure Act.
2. Whether NWP 21 complied with CWA § 404(e)(1)’s requirement that nationwide permits be limited to categories of activities with only minimal adverse environmental effects individually and cumulatively.
3. Whether the Corps could justify use of a nationwide permit for surface coal mining valley fills by relying on pre-construction notifications, discretionary screening, and project-level conditions.
4. Whether the Corps’ NEPA analysis for issuing NWP 21 adequately evaluated environmental consequences, including cumulative effects, or instead improperly supported a finding of no significant impact.

## Decision

- The court rejected the Corps’ threshold objections and held the plaintiffs had standing; the challenge was ripe, justiciable, and subject to judicial review.
- On the merits, the court held that NWP 21, as used for mountaintop-removal-related valley fills and similar large discharges, violated the CWA because it allowed activities with the potential for significant environmental effects to proceed without the procedural requirements of individual permitting under § 404(a).
- The court reasoned that § 404(e) permits are limited to categories of activities that are minimal by their nature; reliance on case-by-case screening and conditions confirmed the category was not uniformly minimal and therefore not suitable for a nationwide permit.
- The court also held the Corps violated NEPA because its Environmental Assessment and related analysis did not adequately address cumulative environmental impacts associated with widespread use of NWP 21 for valley fills.
- The court enjoined the Corps from relying on NWP 21 to authorize additional valley fills within the Southern District of West Virginia and required that such discharges proceed, if at all, through the individual permit process.

## Legal Principles

- Environmental organizations may establish standing based on members’ concrete recreational and aesthetic interests in affected waterways when agency permitting decisions threaten environmental harm.
- A facial or programmatic challenge to an issued nationwide permit may be ripe once the permit is in effect and is being used to authorize regulated activities, and the dispute turns on legal limits in the statute and regulations.
- Under CWA § 404(e)(1), the Corps may issue a nationwide permit only for a category of activities it determines will have only minimal adverse environmental effects when performed separately and only minimal cumulative adverse effects.
- A nationwide permit cannot be used as a substitute for § 404(a) individual permits for activities that may have significant effects; the statute’s structure reserves such activities for individual permitting with fuller procedures.
- Where the Corps must rely on extensive pre-construction notifications and discretionary, project-specific review to avoid more-than-minimal effects, that need for individualized scrutiny supports the conclusion that the activity class does not qualify for nationwide permitting under § 404(e).
- NEPA requires the Corps to take a hard look at environmental consequences of issuing a nationwide permit, including cumulative effects from multiple similar activities occurring across the same region and watersheds; a fragmented analysis that does not meaningfully assess combined impacts is inadequate.

## Conclusion

Ohio Valley Environmental Coalition v. Bulen held that the Corps could not rely on Nationwide Permit 21 to authorize large surface coal mining valley fills through an expedited nationwide-permit pathway because § 404(e) limits general permits to categories with only minimal individual and cumulative impacts, and because the Corps’ NEPA review failed to adequately address cumulative environmental effects; the court therefore enjoined further reliance on NWP 21 for valley fills within the Southern District of West Virginia and required individual permitting for such discharges.


Ohio Valley Environmental Coalition v. Bulen, 410 F. Supp. 2d 450 (2004)