ELR Citation: 43 ELR 20107
No(s). 12-1999 (4th Cir. May 15, 2013)

The Fourth Circuit upheld the U.S. Army Corps of Engineers' decision to issue a CWA §404 fill permit to a surface mine in West Virginia. Environmental groups challenged the permit on two grounds. First, they argued that the Corps made "a material factual error" and "misapprehended" the baseline conditions of the relevant watershed in its analysis of the cumulative impact of the proposed mining activity. But this claim had no merit. The Corps considered the relevant factors, evaluating both the impact site and the entire watershed. Only after this evaluation did the Corps reach its informed judgment as to the baseline conditions. Second, the groups argued that the Corps' finding of cumulative insignificance was "arbitrary and capricious" because the Corps irrationally dismissed the strong correlation between surface coal mining activities and downstream biological impairment. However, the record shows that the Corps grappled with the issue extensively, rationally finding that: (1) the connection between conductivity and stream impairment was not strong enough to preclude a permit; and (2) compromise measures agreed to by EPA and the mining company would successfully mitigate the potential for adverse effects. The Corps' analysis therefore satisfied NEPA's procedural requirements and its finding of cumulative insignificance was neither arbitrary nor capricious.