General Statements About Future Expansion Do Not Trigger NEPA “Cumulative Impact” Analysis Requirement For CWA Section 404 Permit


In a ruling that stands to benefit project proponents, the Ninth Circuit Court of Appeals, in Jones v. National Marine Fisheries Service,  Case No. 11-35954 (9th Cir., Dec. 20, 2013), found that the Army Corps of Engineers was not required to consider the cumulative future impacts of a mining project based on the mining company’s general statements about wanting to widen the scope of its mining activities in the future.  Judge Milan Smith authored the unanimous decision, wherein the panel affirmed the district court’s summary judgment in favor of the Army Corps of Engineers in an action challenging the Corps’ issuance of a Section 404 permit under the Clean Water Act for a project to mine mineral sands near Coos Bay, Oregon.

The plaintiffs argued that the mining company’s general statements that it intended to expand its mining operations along a 50-mile stretch of the Oregon coast, as well as the Corps’ consideration of three alternative sites analyzed in the Environmental Assessment as possible future projects, required the Corps to analyze the cumulative impacts of the permitted mining project under NEPA’s implementing regulations. 

The Court disagreed, concluding that the mining company’s stated desires, which included a statement that it intended to mine along the Oregon coast “from Cape Arago to Port Orford,” did not give specific information as to the number, scope or location of any future projects. 

The Court also found that the three alternative sites analyzed in the EA faced significant hurdles to development.  Relying on its prior decisions in Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005), Environmental Protection Information Center v. United States Forest Service, 451 F.3d 1005 (9th Cir. 2006), and Northern Plains Resource Council, Inc. v. Surface Transportation Board, 668 F.3d 1067 (9th Cir. 2011), the Court held that the mining company’s intended future activities were speculative and not reasonably foreseeable, and therefore, cumulative impact analysis under NEPA was not required.

The Court also found that the Corps adequately examined the risks associated with potential hexavalent chromium generation from the proposed mining project and conducted an adequate “alternatives analysis” prior to issuing the Section 404 permit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Barg Coffin Lewis & Trapp, LLP | Attorney Advertising

Written by:


Barg Coffin Lewis & Trapp, LLP on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.