Wetlands & Waters: Clean Water Act Section 404 Permitting and Litigation

Steptoe lawyers have broad experience handling matters under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act.  We commonly advise clients with respect to regulatory requirements, as well as the strategic development of projects to minimize individual permitting requirements.  Our lawyers regularly litigate wetland and water issues, and help clients to integrate the US Army Corps of Engineers’ (Corps) permitting process with other regulatory requirements, such as the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), and Section 106 consultations under the National Historic Preservation Act (NHPA).  For example, our lawyers:

  • Represent Pebble Limited Partnership in opposing the EPA’s unprecedented attempt to preemptively “veto” development of one of the world’s largest gold and copper deposits under CWA Section 404(c).
  • Successfully represented a pipeline company in NEPA and CWA litigation regarding the construction of a 600-mile crude oil pipeline.  The legal challenge pertained to the Corps’ ability to permit multiple water crossings of a linear project under Nationwide Permit 12, and their obligations to conduct further NEPA review when issuing such authorizations.  Steptoe successfully opposed an environmental organization’s motion to enjoin the project pending further NEPA review.  Sierra Club, et al. v. USACE, et al., 13-cv-1239, Doc. 49 (D.D.C. November 13, 2013).  Steptoe and the Government Defendants also successfully defended the permit decisions in the US Court of Appeals for the DC Circuit in 2015.  Sierra Club v. U.S. Army Corps of Engineers et al., case number 14-5205 (D.C. Cir.).  The DC Circuit agreed that the minimal federal jurisdiction over the pipeline did not warrant a project-wide environmental review.  The case was an important victory, as it involved significant and novel issues regarding the scope of CWA, NEPA, and ESA review for linear projects.    
  • Successfully appealed a jurisdictional determination by the Corps in an administrative forum.
  • Successfully represented a developer in state court litigation involving wetlands in Richmond, Virginia.
  • Perform extensive ongoing work with the Corps on the impacts to wetlands of various projects and the procurement of individual Section 404, Section 10, and other permits for clients.