ELR Citation: ELR 20072
No(s). 3:03-2281 (S.D. W. Va. Mar 31, 2009)

A district court held that the U.S. Army Corps of Engineers violated the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA) when it decided in 2007 to issue a nationwide permit, NWP 21, authorizing the discharge of dredged and fill material associated with surface coal mining activities including mountaintop mining. In issuing NWP 21, the Corps decided not to prepare an enviornmental impact statement (EIS) under NEPA because it determined that the activities authorized by that permit would only have minimal cumulative environmental impacts. The Corps also determined that the permitted activities would not result in significant environmental impacts. The Corps' decision not to prepare an EIS was arbitrary and capricious. The Corps failed to consider the continuing impacts of past actions, which is a relevant factor for a cumulative impacts analysis. In addition, the Corps' NEPA and CWA cumulative impacts determinations relied on the success of a mitigation process to minimize the cumulative impacts of NWP 21, but the Corps did not provide a rational explanation for its reliance. The Corps also provided no evidence that the mitigation process would be successful or adequately enforced. NWP 21 for 2007 was therefore vacated and remanded.