Lawsuit Launched Challenging Army Corps of Engineers' Systemic Failure to Protect Nation's Endangered Species

PORTLAND, Ore. - The Center for Biological Diversity launched federal litigation today to challenge the Army Corps of Engineers’ “nationwide permit” program for failing to ensure that tens of thousands of construction and other projects every year do not harm the nation’s endangered species. In a formal notice of intent to sue filed today under the Endangered Species Act, the Center informed the Corps that it has failed to structure its nationwide permit program to ensure that it will not threaten endangered species and their habitats around the country.

“For years the Corps of Engineers has systematically turned a blind eye to the plight of America’s most vulnerable wildlife and plants. It’s time for that to stop,” said Noah Greenwald, endangered species director at the Center. “Salmon, sea turtles and endangered species from coast to coast have been sentenced to a death by a thousand cuts under the Corps’ deeply flawed permitting system.”

While the nationwide permit program is intended to streamline Clean Water Act permitting for projects with “minimal” adverse effects, it has been mismanaged and abused. In March, the Corps issued 50 nationwide permits authorizing a wide range of activities without any public notice and little agency oversight, including residential and commercial development, oil and gas activities, commercial fishing and coal mining. The southern segment of the Keystone XL pipeline, for example, was federally permitted through a series of nationwide permits for utility lines.

The Center’s legal notice echoes concerns from the National Marine Fisheries Service’s 2012 report that found the Corps has failed to ensure its nationwide permit program does not jeopardize a host of endangered species, including salmon and a number of other fish species, sea turtles, corals, whales and other marine mammals; many species under the jurisdiction of the U.S. Fish and Wildlife Service are also of concern — conservancy fairy shrimp, plants like the Howell’s spectacular thelypody and Suisun thistle, Salt Creek tiger beetles, red wolves and Florida panthers, for instance.

The Fisheries Service reported dozens of examples in which nationwide permits affected protected wildlife and their critical habitat. It reprimanded the Corps for failing to keep track of how much habitat is affected and how many polluted discharges are occurring, as well as for failing to secure compliance with permit conditions.

The Fisheries Service estimated that under nationwide permits that are particularly harmful to listed species, more than 43,000 activities will occur every year (217,000 over five years), affecting nearly 60,000 acres of U.S. wetlands, coasts, lakes, rivers and streams by 2017. These impacts are in addition to the nearly 140,000 acres affected since 1982. Only in limited circumstances will the Corps even know of a project and the potential for species impacts before the activities occur, and even then, the public will not be informed before development.

“While small projects under nationwide permits may appear benign, their cumulative impact is fragmenting habitat, destroying wetlands and polluting waters,” said Greenwald.

Concerns about the Corps’ nationwide permit program have been longstanding. In 2005, a court found the Corps failed to consider the impacts of nationwide permits on endangered species, and the Congressional Research Service this year faulted the Corps’ issuance of the permits that failed to protect aquatic resources, provide oversight and adhere to the Clean Water Act’s “minimal adverse effects” requirement.

“Despite clear directives from courts and fellow government agencies, the Corps continues to parrot the same old, tired excuses, sweeping these systemic flaws under the rug,” added Greenwald. “It’s well past time for the Corps to reform the program, and it must suspend the program until it does so.”