Center for Biological Diversity May Challenge Nationwide Permits

The Center for Biological Diversity notified the US Army Corps of Engineers by letter dated August 16 that it intends to file a lawsuit challenging  the Corps' nationwide permit (NWP) program, which is authorized  by Section 404 of the Clean Water Act.  The CBD is threatening to file suit because  the Corps allegedly failed to consider the effects of the NWP program on endangered species, and therefore violates the Endangered Species Act.  Its position is summarized in the letter this way:

As explained above, ACOE is in violation of the ESA as a result of its failure to insure that the
NWP program will not jeopardize the continued existence of any listed species, or result in the
destruction or adverse modification of critical habitat. ACOE’s NWP program constitutes
violations of Section 7(a)(2) and Section 7(d) of the ESA. 

If ACOE does not act to correct the violations described in this letter, the Center will pursue
litigation against ACOE in U.S. District Court in 60 days from your receipt of this notice. The
Center will seek injunctive and declaratory relief, and legal fees and costs regarding these
violations. An appropriate remedy that would prevent litigation would be for ACOE to
immediately cease its NWP program until it can insure that the discharges permitted under the
program will not jeopardize the continued existence of any endangered or threatened species, and will not destroy or adversely modify any critical habitat for such species, in consultation with and with the assistance of NMFS and FWS and in accordance with any RPA.

Hunton & Williams has an explanation of  the letter and the possible ramifications of the lawsuit.