Arkansas Waste Pipeline Ducks Federal Challenge

(CN) - River conservationists cannot challenge a wastewater pipeline in southern Arkansas that relied on nationwide discharge permits for approval, a federal judge ruled.

El Dorado Water Utilities had sought approval in June 2010 for a pipeline to transport wastewater to the Ouachita River, serving several industries and the city of El Dorado, Ark. The pipeline was 23.5 miles long, and crossed more than 30 wetland areas.

The Clean Water Act allows the U.S. Army Corps of Engineers to issue individual and nationwide permits for the discharge of waste into navigable waters at specific disposal sites. Nationwide permits, which are valid for five years, regulate categories of similar discharge activities with minimal adverse environmental effects. Before issuing a nationwide permit, the corps must prepare an environmental impact statement and accept public comments. The head of each corps division may modify, suspend or revoke a permit after notifying the public and the interested parties.

The corps concluded that the Ouachita pipeline was authorized by two nationwide permits renewed in March 2007, which allowed construction, maintenance, repairs and other activities associated with utility lines, including pipelines that transport liquid or gaseous substances. It found that the construction of the pipeline would not cause permanent loss of wetlands, and ordered El Dorado Water Utilities to buy credits from a wetlands mitigation bank to compensate for the conversion of some forested wetlands. El Dorado Water complied, and the corps approved its modified pipeline route in 2012, after renewing the nationwide permits that authorized it.

Ouachita Riverkeeper and Save the Ouachita sued the Army Corps of Engineers and Lt. General Thomas Bostick in May 2012, alleging they had authorized the construction of the wastewater pipeline without proper verification.

A federal judge in Washington allowed El Dorado Water and other companies that planned to discharge waste through the pipeline to intervene, but refused to remove the action to Arkansas.

In addressing the parties' cross-motions for summary judgment Wednesday, U.S. District Judge Colleen Kollar-Kotelly concluded that the plaintiffs had standing to sue, and that their case was not moot, despite the progressing pipeline construction.

In declarations filed with the court, two members of the plaintiff organizations said the pipeline would disrupt hunting and fishing in the area and would expose their property to potential leaks. Kollar-Kotelly found these statements sufficient to establish the likelihood of injuries attributable to the pipeline.

Ultimately the corps has jurisdiction to remedy potential damage from the pipeline because the utility companies failed to prove that all activity subject to the nationwide permits had finished, according to the 22-page ruling.

"Though the defendant-intervenors may have established that clear-cutting the right-of-way is now complete and those wetlands have been converted from one type to another, they have not shown that nothing can be done to mitigate the ongoing effects the change in wetland type may have on the surrounding environment," Kollar-Kotelly wrote.

The judge found, however, that the corps' decision to allow the pipeline under the nationwide permits was neither arbitrary nor capricious, and thus the corps had no obligation to complete an additional environmental impact statement for the project.

The corps had adequately concluded that the pipeline would not cause permanent loss of wetlands, but would convert forested wetlands to wetlands with different functions, the ruling states.

Kollar-Kotelly also found that the corps had considered the effects of the placement of the pipeline itself, but had concluded that returning the removed soil to pre-existing contours and elevation would prevent permanent loss of wetlands.

The conservationists failed to identify any other grounds for setting aside the corps' decision, the ruling adds.

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