ELR Citation: ELR 20025
No(s). 09-10877 (11th Cir. Jan 21, 2010)

The Eleventh Circuit affirmed a lower court decision vacating CWA §404 permits the U.S. Army Corps of Engineers issued to several limestone mining corporations in Florida's Lake Belt region. Before the Corps may issue a §404 permit, it must define the project's basic purpose and determine whether that basic purpose is "water dependent." Here, the Corps' decision that the mining project's basic purpose was water dependent was arbitrary under the APA. The extraction of limestone in general is not water dependent, as mining limestone does not always require that the mine be located in a wetland. Although limestone mining requires that the mine sit where the limestone deposits are located—in this case, wetlands—the Corps did not define the basic purpose of this project as the mining of limestone in the Lake Belt area. It merely stated that the basic purpose was to extract limestone in general. By finding that the project was water dependent, the Corps failed to apply the presumption that practicable alternatives to mining limestone in the Lake Belt are available and did not shift the burden to the mining companies to clearly demonstrate that there are no practicable alternatives to mining in the area. This procedural failure by the Corps mars its subsequent determination regarding the availability of practicable alternatives in violation of its own regulations.