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complianceclean water act
compliancerespondentclean water act

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Sierra Club v. United States Army Corps of Engineers, 909 F.3d 635

Facts

The Mountain Valley Pipeline, a 42-inch diameter natural gas pipeline, was proposed to run 304 miles through Virginia and West Virginia, crossing numerous federal water bodies. The Corps had issued a verification allowing the pipeline to proceed under Nationwide Permit 12 (NWP 12), which requires compliance with state-imposed conditions. West Virginia had imposed special conditions requiring individual state water quality certification for certain pipelines and limiting construction of stream crossings. The Corps later attempted to substitute its own special condition for one imposed by the state, leading to the petition from environmental groups.

The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing the Corps’ Pittsburgh, Norfolk, and Huntington Districts.

Issue

Did the U.S. Army Corps of Engineers exceed its authority under the Clean Water Act by substituting its own special conditions for those imposed by the state of West Virginia in the context of the Mountain Valley Pipeline's construction?

The Corps' determination, that it had authority under Clean Water Act (CWA) to substitute on a case-specific basis its own conditions for those conditions imposed by states as part of their certification of a nationwide permit, was not entitled to Chevron deference.

Rule

The Clean Water Act mandates that any state certification becomes a condition on any federal license or permit, and federal agencies cannot alter or reject conditions imposed by states.

The plain language of Section 1341(d) of the Clean Water Act provides that any state certification 'shall become a condition on any Federal license or permit.'

Analysis

The court found that the Corps' determination to impose its own special condition in lieu of the state's condition was not supported by the Clean Water Act. The Corps lacked the authority to substitute its conditions for those imposed by West Virginia, as the Act clearly states that state conditions must be adhered to. The court emphasized that the Corps' actions did not follow the required notice-and-comment procedures, which are essential for any state to waive its conditions.

The Corps’ July 3, 2018, Reinstatement to Mountain Valley authorizing Special Condition 6 'in lieu of' Special Condition C necessarily rests on the Corps’ determination that it has the statutory authority to substitute, on a case-specific basis, its own conditions for those conditions imposed by states as part of their certification of an NWP.

Conclusion

The court vacated the Corps' verification and reinstatement, ruling that the Corps exceeded its authority under the Clean Water Act by substituting its own conditions for those imposed by the state. The decision reinforced the requirement for public notice and comment before a state can waive its conditions.

Accordingly, we vacate, in their entirety, the Corps’ December 22, 2017, Verification and July 3, 2018, Reinstatement authorizing the Pipeline’s compliance with NWP 12.

Who won?

The environmental groups (Petitioners) prevailed in the case because the court found that the Corps acted beyond its statutory authority and failed to comply with the Clean Water Act's requirements regarding state conditions.

Petitioners ask this Court to set aside Respondent U.S. Army Corps of Engineers’ (the 'Corps') December 22, 2017, verification ('Verification') and July 3, 2018, reinstated verification ('Reinstatement') that construction of the Mountain Valley Pipeline (the 'Pipeline') can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 ('NWP 12'), rather than an individual permit.

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