## Facts

- In 2004, under Clean Water Act (CWA) § 404, the United States Army Corps of Engineers issued Regional General Permit SAJ-86 for development in northwest Florida.
- SAJ-86 covered about 48,150 acres (the permitted area).
- The permit authorized development of up to 30% of the permitted area, including residential, commercial, recreational, and institutional projects.
- Responding to public comments challenging the breadth of SAJ-86, the Corps stated that SAJ-86 was intended to cover “components of suburban development.”
- SAJ-86 set limits on wetland impacts: no more than 20% of wetlands could be destroyed within any of 19 geographic subbasins, and no more than 1,500 acres of wetlands could be destroyed across the entire permitted area.
- In 2005, Sierra Club sued to enjoin enforcement of SAJ-86, alleging that issuing a regional general permit for development at this scale violated the CWA’s requirements for general permits.

## Issues

1. Whether the Corps lawfully issued SAJ-86 as a CWA § 404 regional general permit by making a reasoned determination that activities authorized under the permit would cause only minimal adverse environmental effects individually and cumulatively.
2. Whether the Corps’ record and explanation adequately supported its conclusions about cumulative wetland impacts given the permit’s scope, authorized land uses, and acreage caps.
3. Whether issuance of SAJ-86 was arbitrary or capricious under the Administrative Procedure Act (APA) because the Corps failed to provide a sufficient rationale connecting the permit’s scale and conditions to the CWA’s “minimal effects” requirement for general permits.

## Decision

- The court ruled in Sierra Club’s favor on the merits of its CWA challenge to SAJ-86.
- The court concluded that the Corps had not adequately supported the required finding that SAJ-86 would result in only minimal adverse environmental effects on an individual and cumulative basis.
- The court set aside SAJ-86 and granted injunctive relief preventing the Corps from enforcing the permit as issued.
- (Subsequent history) This 2005 decision was later vacated on other grounds in Sierra Club v. United States Army Corps of Engineers, 464 F. Supp. 2d 1171 (M.D. Fla. 2006).

## Legal Principles

- Under CWA § 404(e), the Corps may use a general permit (including a regional general permit) only for categories of activities that will cause only minimal adverse environmental effects individually and will have only minimal cumulative adverse effects.
- The Corps must show, in the administrative record, a reasoned basis for its “minimal effects” determination; numerical caps on impacts do not automatically satisfy the statute.
- When a general permit authorizes repeated fills across a large permitted area, the Corps must evaluate cumulative effects in a way that matches the permit’s overall footprint and expected buildout, rather than treating each authorization as if it were isolated.
- Under the APA, agency action is unlawful if the agency fails to provide an adequate explanation linking the facts found to the decision made, including how permit conditions are sufficient to keep impacts at a “minimal” level.

## Conclusion

Sierra Club v. United States Army Corps of Engineers held that the Corps’ SAJ-86 regional general permit for mixed-use development across 48,150 acres in northwest Florida could not stand because the Corps did not adequately support the CWA-required finding that authorized wetland fill activities would have only minimal individual and cumulative adverse environmental effects, so the court set aside the permit and enjoined its enforcement (later vacated on other grounds in 2006).


Sierra Club v. United States Army Corps of Engineers, 399 F. Supp. 2d 1335 (2005)