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  • Mark Ryan

Corps 404 Permit Upheld in Maryland

I've read a lot of 404 permit challenges over the years. A year or so ago, I ran the numbers and found that most challenges to Corps 404 permits fail. The case below is yet another example. They're just hard cases to bring. The 404 regs are very complex and the underlying science and policy can also be challenging, which makes courts loathe to second guess the Corps unless the Corps has very clearly erred. The Corps knows how to build a record to support its permits and DOJ is expert in defending them. This isn't to say that no one should ever challenge a Corps permit. The Corps has made mistakes, and had some permits overturned. But the careful practitioner will think long and hard before filing one of these cases.

Friends of the Capital Crescent Trail v. USACOE, 2020 1849704 (D. Md. 2020) (on motion for summary judgement in case challenging Corps 404 permit for light rail line, held that plaintiffs have standing where they showed that their use and enjoyment of the trail and surrounding creeks would be impacted by construction of new rail line; Corps was not arbitrary and capricious in concluding that the locally-preferred alternative was LEDPA; the Corps’ analysis met the 404(b)(1) guidelines; Corps cannot be faulted for relying on prior NEPA analysis)

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