ELR Citation: ELR 20523
No(s). 000509 (Va. Mar 2, 2001)

The court holds that Native American tribes and environmental groups have standing to challenge a state permit issued for a proposed public water supply project in Virginia. The project involved the discharge of dredged or fill material, thus, a permit from the U.S. Army Corps of Engineers (the Corps) is required. Under Clean Water Act (CWA) §401, however, the Corps cannot issue a CWA §404 permit until after the state issues a permit. The tribes and groups sought to challenge the state permit, but because the permitting authority for the project ultimately belongs with the Corps, the lower state courts held that the tribes' and groups' injuries were not fairly traceable to the state and, thus, they lacked standing.

The court, however, first holds that the groups and tribes meet the causation prong of the standing criteria. The injuries alleged are fairly traceable to the state's decision to issue the permit and are not the result of the independent action of the Corps, a third party not before the state courts. Although the state permit is a condition precedent to the issuance of a federal permit, it has its own existence, is separate from the federal permit, and can cause injury. Moreover, no federal court can review the state permit. The court, therefore, remands the case so that the merits of the tribes' and groups' claims can be tried.

Counsel for Appellant
David S. Bailey
Law Offices of David S. Bailey
16397 Triple Creek La., Beaverdam VA 23015
(804) 227-3581/3122

Counsel for Appellee
Deborah Love Feild, Ass't Attorney General
Attorney General's Office
900 E. Main St., Richmond VA 23219
(804) 786-0098/2071

Compton, J.