ELR Citation: ELR 20886
No(s). 89-5934 (6th Cir. May 4, 1990)

The court holds that the Army Corps of Engineers properly issued a Nationwide Permit Number 26 (NWP 26) to supersede the §404 permit it previously issued pursuant to the Federal Water Pollution Control Act. The Corps originally issued a §404 permit that incorporated the Kentucky Natural Resources and Environmental Protection Cabinet's comments on mitigation. A subsequent review of its decision led the Corps to issue a superseding NWP 26, since the proposed development met the requirements of an NWP 26 and the new permit incorporated the same requirements as the original §404 permit. On appeal, the court holds that the Corps did not act arbitrarily or capriciously because issuance of the NWP 26 did not amount to modification of the §404 permit, but completely superseded it. Next, the court holds that no notice was required when the Corps issued the NWP 26, since the district engineer could reasonably believe that the conditions placed on the §404 permit and carried over into the NWP 26, combined with other agencies' failing to object to the §404 permit, precluded the need for notice with the NWP 26. Moreover, the court holds that even if notice were required, failure to provide it was harmless error. Finally, the court holds that the Corps was not required to consider available alternatives for development under NWP 26 permits, since the applicable regulations operate only after the permit is issued.

Counsel for Plaintiffs-Appellants
Victor Baltzell
Miller, Mosley, Clare & Townes
730 W. Main St., Ste. 500, Louisville KY 40202
(502) 583-7400

Counsel for Defendants-Appellees
Frederick Stine
U.S. Attorney's Office
P.O. Box 72, Seventh & Scott Sts., Covington KY 41011
(606) 292-3184

Before: KENNEDY and NORRIS, Circuit Judges; and GADOLA, District Judge.^*