US Nationwide Pollution Permit Restrictions Upheld

October 4, 2006

The US Army Corps of Engineers decision to place restrictions on issuance of nationwide pollution permits has been upheld by a federal court. In National Association of Home Builders v. Army Corps of Engineers, the District Court for the District of Columbia found that the Corps of Engineers had not acted in an "arbitrary" or "capricious" manner in changing the terms and conditions for issuance of a national pollution permit, including reducing the size of area into which pollutants may be discharged from 10 acres to 1 acre, raising the threshold for requiring additional permits from 1 acre to 1/10 acre,

A nationwide permit allows an organization to engage in certain industrial activities on a national basis (such as mining and construction), reducing the amount of paperwork and filings needed for otherwise minor environmental impacts, as opposed to an ordinary permit for a specific location which will engage in activities which generate water pollution.

Due to concerns over the amount of discharge taking place in waterways, the Corps of Engineers began in the 1980s to reduce the authority granted by nationwide permits and to bar use of the permits in certain ecologically sensitive areas.

Some industry groups, including the plaintiff in the above case, The National Association of Home Builders, sued the Corps of Engineers in 2000 over the change in an attempt to block its implementation. Environmental groups, including the Sierra Club, were given permission to intervene in the case in support of the actions of the Corps.

Environmental groups were pleased with the decision, but are concerned over other actions of the Bush Administration, such as the attempts to weaken provisions of the 2002 Clean Water Act to allow additional dumping of construction and mining waste into waterways as fill material.