ELR Citation: ELR 20275
(S.D. W. Va. Nov 24, 2009)

A district court held that the U.S. Army Corps of Engineers violated the CWA and NEPA by failing to provide adequate public notice and comment prior to issuing §404 dredge and fill permits for two large mining projects in West Virginia. The notices contained no substantive information on proposed mitigation, despite the fact that the compensatory mitigation measures included in the two permits were central to the Corps' determinations of no significant degradation. Without any substantive information on mitigation, the notices failed to provide an accurate picture of the Corps' reasoning and prevented useful criticism on the part of the plaintiffs and on the part of the public in general. Accordingly, the notices were insufficient under the CWA. For much of the same reason, the notices were deficient under NEPA as well. On remand, the Corps must re-issue an amended notice for each permit, receive and respond to comments on the revised notices, and reconsider each permit with any new comments in mind. However, the Corps' FONSIs and determinations that the surface mines will not cause significant degradation to the waters of the United States are reasonable and, thus, in accordance with existing law. The court also rejected plaintiff's claim that the Corps does not have jurisdiction to issue a §404 permit for discharges from the lowest point of valley fills. The court, therefore, granted summary judgment to the mines on these counts.