ELR Citation: 42 ELR 20175
No(s). 3:11-0149 (S.D. W. Va. Aug 10, 2012) (Chambers, J.)

A district court upheld the U.S. Army Corps of Engineers' decision to issue a CWA §404 permit to a mining company for the construction of a valley fill and sediment pond in conjunction with the Reylas Surface Mine in West Virginia. The Corps' adoption of a compensatory mitigation plan that will replace the "majority" of stream functions was not arbitrary and capricious. While the Corps cannot guarantee that every type and amount of stream function will be replaced, it has gone to great lengths to quantify the stream function expected to be lost and to require the creation, through mitigation, of an amount of "functional capacity units" in excess of the expected loss. Nor was its adoption of an adaptive management plan arbitrary or capricious. Although the adaptive management plan does not require specific remedial actions in the event that mitigation is unsuccessful, it gives the Corps the right to require compliance in any way that the Corps sees fit. Similarly, the Corps' temporal loss formula was not arbitrary and capricious. The Corps' arrival at a particular formula, like the use of stream creation or particular mitigation measures, is a scientifically complex determination and is entitled to significant deference. The court also held that the Corps was not required to issue an EA or EIS under NEPA. The Corps analyzed the cumulative impacts and articulated a satisfactory explanation for its conclusion, and it was not unreasonable for the Corps to rely on the expertise of the state's environmental agency in determining that impacts on water quality will be insignificant.