ELR Citation: ELR 20070
No(s). 3:05-0784 (S.D. W. Va. Mar 23, 2007)

A district court held that the U.S. Army Corps of Engineers violated the Clean Water Act and National Environmental Policy Act (NEPA) in issuing four permits to fill headwater streams in conjunction with mountaintop removal coal mining. The permits would have allowed the stripping of about 3,800 acres of land and the burial of more than 12 miles of streams. The Corps issued a finding of no significant impact (FONSI) for the permits rather than preparing an environmental impact statement (EIS). In so doing, the court ruled that the Corps failed to take a "hard look" at whether the impacts to the environment are significant under NEPA. Although the Corps evaluated the physical structure of the streams and partially considered impacts to those streams as habitat, it gave "no more than lip service to the other attributes of headwaters that must be considered in assessing the structure and function of a stream." Moreover, in determining that EISs were not necessary, the Corps relied on the permits' mitigation measures for offsetting stream loss. It reasoned that the permanent destruction of headwater streams would be rendered insignificant if the mitigation work covered an equal or greater length of other streams. But there is no explanation for how the mitigation proposed will replace what will be lost. Further, while the mitigation plans' performance standards purport to ensure success, the plans are flawed. The mitigation plans, therefore, violate NEPA standards and do not support the FONSI determination. The court also noted that the scientific community is "skeptical of the likelihood that important headwater stream functions will actually be achieved in manmade streams," and that the Corps has "too little experience to support its faith in stream creation as an acceptable means of compensatory mitigation." Rather than ordering the Corps to issue an EIS for each permit, the court remanded them for reconsideration in light of the opinion.