Lawsuit Launched Over Army Corps’ Failure to Protect Endangered Wildlife From Nationwide Permit Program

February 8, 2021

Program Greenlights Environmental Destruction Across Country

The Center for Biological Diversity, Waterkeeper Alliance, and allies issued a formal notice today of their intent to sue the U.S. Army Corps of Engineers for failing to ensure that Nationwide Permits reissued during the final days of the Trump administration will not jeopardize endangered species and critical habitat across the country. These Nationwide Permits allow for streamlined industrial development such as oil pipelines, coal mines, and marine aquaculture facilities through waterways across the country, resulting in the destruction of tens of thousands of acres of streams, rivers, and wetlands. 

“The Trump administration flagrantly violated bedrock environmental laws when it reissued the Nationwide Permits, without regard for the people, places or wildlife that are affected by this deeply flawed program,” said Jared Margolis, a senior attorney at the Center. “I’m hoping President Biden will prevent the Corps from continuing to use the permits to rubber-stamp major projects like oil pipelines that leak and spill, degrading the clean water that people and wildlife need.” 

The Biden administration has called for a review of the Nationwide Permits consistent with its Jan. 20 Executive Order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” While the groups are hopeful that this process will result in important changes to the program, if the Corps continues to ignore its duty to properly account for the harm Nationwide Permit activities pose to species, then litigation may be necessary. 

“Rather than comply with a court order to ensure that endangered species are protected from further death and destruction, the Trump administration doubled down on its original violation by issuing even weaker Nationwide Permits with fewer protections for these species,” said Daniel E. Estrin, general counsel for Waterkeeper Alliance. “It’s long past time for the Corps to rethink its approach to dredge-and-fill permitting and to ensure that these activities will not put endangered species or their habitat in jeopardy.”

“The new NWP 56 would open our federal waters to industrial-scale finfish aquaculture — the factory farms of the sea — with no limits on impacts to wildlife, including endangered fish, turtles and marine mammals,” said Amy van Saun, senior attorney at Center for Food Safety. “Without ESA consultation, the Army Corps is blindly exposing our ocean wildlife to harm from farmed fish escapes, inputs like pesticides and drugs, and industrial equipment which can entangle sensitive species.”

“These Nationwide Permits allow streamlined permitting for a range of dirty industries, from oil and gas pipelines to offshore aquaculture, all without fulfilling mandated environmental reviews and consultations,” said Hallie Templeton, deputy legal director at Friends of the Earth. “We will continue to fight against widespread environmental and socio-economic harms that disregard science and sustainability.”

“The Trump administration gave a free pass to polluters on the way out the door,” said Jon Devine, director of federal water policy at NRDC (Natural Resources Defense Council). “The Biden administration must toss this egregious giveaway and restore meaningful protections to streams and wetlands and the wildlife that depends on them — or we will turn to the courts to enforce the law.” 

Background

Nationwide Permits have been approved approximately every five years since 1982. The 16 new permits will allow hundreds of thousands of discharges of dredged or fill material into the nation’s waters and wetlands from oil and gas development, pipeline and transmission-line construction, and coal mining.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service have previously found that these activities — which are approved with little or no environmental review — threaten iconic species including whooping cranes, Florida manatees, and the hundreds of migratory birds that need wetlands to survive. 

Thousands of projects each year rely on the permits to conduct activities that cause sedimentation and contamination of essential habitats, directly harming species through construction activities and powerline collisions. But the extent of the damage is unknown, since the Army Corps does not collect sufficient information to consider those effects. 

In prior litigation, a federal court found that the Corps had violated the Endangered Species Act by not undertaking consultation with the Fish and Wildlife Service and the National Marine Fisheries Service regarding the impacts on endangered wildlife from Nationwide Permit 12, which is used for massive oil and gas pipelines. That litigation prevented the continued construction of the Keystone XL pipeline. The Trump administration ignored that decision and reissued the program without conducting the necessary consultation to ensure imperiled species are protected.

Thousands of public comments were submitted for the proposed reissuance and adoption of the new offshore-aquaculture permits, highlighting the risk of harm from this program; yet the Army Corps failed to take the steps necessary to comply with the law and prevent the continued devastation of our wetland resources.