NFIB v. U.S. Army Corps of Engineers -- Failure to Consider Permit Rule's Impact on Small Business

Author: R Stell Date: September 27, 2006

In 2000, NFIB sued the Army Corps of Engineers for failure to consider small-business impact when the Corps issued new wetlands rules that violated that the Regulatory Flexibility Act. The issue in this case stems from the elimination of Nationwide Permit 26, a streamlined permit process for small projects that had minimal impact on wetlands. Permit 26 had been an important mechanism for minimizing regulatory burdens on small businesses since its creation in 1977. The U.S. District Court for the District of Columbia held that the Corps did not violate the RFA. The NFIB Legal Foundation appealed the decision in hopes of holding the Corps accountable for its failure to comply with the RFA and conduct a small-business analysis when it imposed new wetlands restrictions.

Status: NFIB brief on the merits is due Oct. 15, 2004. Oral argument held April 19, 2004. Appellate court ruled in favor of NFIB on the Regulatory Flexibility Act claim.

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