MEMORANDUM OPINION AND ORDER
This сase involves several environmental groups’ challenge to the Army Corps of Engineers’ (“Corps”) decision to issue a nationwide permit, NWP 21, authorizing the discharge of dredged and fill material associated with surface coal mining activities, which includes mountaintop mining. Under this controversial method of mining, coal seams running through the upper fraction of a mountain, ridge, or hill are reached by blasting and removing each
The Corps indirectly manages this process through a nationwide permitting process. A nationwide discharge permit authorizes discharges from all activities, nationwide, within an identified category. A complex statutory framework under-girds and constrains the Corps’ decision to issue a nationwide permit. Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344, for instance, requires the Corps to determine that the activities in the authorized category would only have minimal environmental impacts, both individually and cumulatively. Another statute, the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C), requires the Corps to take a “hard look” at the environmental impacts of a project and prepare an environmental impact statement before issuing a nationwide permit unless it determines that the activities authorized by the permit will only result in insignificant environmental impacts.
In the course of issuing NWP 21 in the year 2007, the Corps determined, аs required by CWA, that the activities authorized by that permit would only have minimal cumulative environmental impacts. The Corps also decided not to prepare an environmental impact statement, as required by NEPA, because it determined that the permitted activities would not result in significant environmental impacts. I FIND that these determinations were arbitrary and capricious under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706 for the following reasons.
First, the Corps’ NEPA analysis did not include a consideration of the ongoing impacts of past actions, are part of NWP 21’s cumulative impacts. Second, both 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. Accordingly, the Corps’ determinations were unsupported by the administrative record and were arbitrary and capricious. NWP 21 (2007) is VACATED and REMANDED to the Corps for further proceedings.
I. Background
This case is one in a long line of lawsuits initiated by environmentalists against the coal industry and governmental regulators challenging practices and permit decisions
The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration. Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream there is no water quality.-
Bragg v. Robertson,
The Corps, the defendant in this suit, 2 indirectly regulates the mountaintop mining industry via § 404 of CWA. This case involves a challenge to the Corps’ evaluation of the environmental impacts associated with a specific § 404 nationwide permit: NWP21.
A. Statutory Framework
As I have stated, in order to issue a permit authorizing valley fill, the Corps must satisfy the requirements of two statutes: CWA and NEPA. The purpose of CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). CWA authorizes the Secretary of the Army, acting through the Corps, to regulate discharges of dredged and fill material into the waters of the United States by issuing either individual or general permits. 33 U.S.C. § 1344. Individual permits for the discharge of dredged or fill material from specific disposal sites are authorized on a case-by-case basis pursuant to § 404(a). The issuance of an individual permit requires extensive individual review, notice, and an opportunity for public hearing. 33 U.S.C. § 1344(a); 40 C.F.R. § 230.5.
Unlike individual permits that only authorize discharges from a specific site, general permits are issued on a state, regional, or nationwide basis. 33 U.S.C. § 1344(e). Pursuant to CWA § 404(e), general permits authorize the discharge of dredged or fill material for an entire category of activities. 33 U.S.C. § 1344(e). The purpose of § 404(e)’s general permits is to reduce administrative paperwork and delay and, according to the Corps, to permit the agency to “authorize minor activities that are usually not controversial and would result in little or no public or re
When issuing a nationwide permit, the Corps must also comply with the terms of NEPA. NEPA requires federal agencies to consider the environmental consequences of their actions and to allow public participation in the decision-making process. Unlike CWA, NEPA does not mandate particular substantive results such as a finding of minimal adverse impacts, but rather requires fedеral agencies to take a “hard look” at the environmental consequences of an action and to “disseminat[e] ... relevant environmental information for public comment so that the general public may be an active participant in the decisionmaking process.”
OVEC Huntington,
To determine whether an action will have a significant environmental impact and thus require an EIS, an agency first decides whether the action is one that normally does require an EIS, or is categorically excluded from requiring an EIS. 40 C.F.R. § 1501.4(a). If the agency cannot readily determine whether an action will significantly affect the environment, then it must prepare an environmental assessment (“EA”) that discusses the proposed action, alternatives, and the environmental impacts of the proposed action and its alternatives. 40 C.F.R. §§ 1501.4, 1508.9. An EA is a “concise public document” that “provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS] or finding of no significant impact.” 40 C.F.R. § 1508.9(a). The EA must address the direct, indirect, and cumulative impacts of the proposed action.
Id.
§ 1508.9(b);
see also
40 C.F.R. §§ 1508.7, 1508.8, 1508.9. If the EA reveals that the project will have a significant effect on the quality of the human environment, then the Corps must prepare a detailed, written EIS. 42 U.S.C § 4332(2)(C). If the Corps determines that its proposed action will not have a significant effect on the environment, then it need not prepare an EIS but may instead issue a Finding of No Significant Impact (“FONSI”). 40 C.F.R. §§ 1508.4, 1508.13. “An agency’s decision to issue a FONSI and not prepare an EIS is a factual determination.”
Greater Yellowstone Coal. v. Flowers,
B. Nationwide Permit 21
NWP 21, the nationwide permit at issue in this case, permits:
Discharges of dredged or fill materials into waters of the United States associated with surface coal mining and reclamations operations provided the activities are already authorized, or are currently being processed as part of an integrated permit processing procedure, by the Department of Interior (DOI), Office of Surface Mining (OSM), or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977.
(Corps’ Mem. Opp’n OVEC’s Mot. Summ. J. Supplemental Compl., Ex. 1, Decision Document: Nationwide Permit 21 at 1.) 3 NWP 21 requires project proponents to file a pre-construction notification (“PCN”) with the Corps and receive written authorization from the Corps prior to the initiation of a project. Id. The permit is also subject to general conditions which apply to all nationwide permits. Id. Under NWP 21, the Corps’ district engineers consider each project on a case-by-ease basis, determine whether the terms and conditions of NWP 21 are met, and evaluate whether the project’s adverse environmental effects are both individually and cumulatively minimal. Final Notice, Reissuance of Nationwide Permits, 72 Fed. Reg. 11092, 11095 (March 12, 2007) (explaining PCN review process). If the district engineer determines that all the conditions of the permit are met and that the proposed project will not cause more than a minimal adverse effect on the aquatic environment, then the district engineer may authorize the project and associated fill.
C. Procedural History
The plaintiffs, a collection of environmental groups (hereinafter collectively referred to as “OVEC”), 4 brought this action challenging the Corps’ decision in the year 2002 to issue NWP 21 5 on the basis that the nationwide permit did not comply with the terms of CWA; that the Corps failed to comply with NEPA when issuing the permit; and that the Corps acted arbitrarily and capriciously in violation of the APA, 5 U.S.C. § 706(2)(A). (Am. Compl. ¶¶ 52-56.)
In my prior Memorandum Opinion and Order, granting OVEC’s first motion for summary judgment, I held that the Corps’ issuance of NWP 21 (2002) conflicted with the unambiguous meaning of § 404(e) of CWA. I found that “[s]ection 404(e) of the [CWA] authorizes the Corps to issue nationwide permits only for those activities determined
before
issuance to have minimal environmental impacts.”
OVEC I,
The Fourth Circuit Court of Appeals reversed and remanded, finding that the
It is of course open to the plaintiffs on remand to reassert their argument that the Corps’ minimal-impact determination was arbitrary and capricious because the Corps relied on erroneous premises or ignored relevant data (and we note that this argument concedes that there was a determination). We express no view on that matter. Our holding today is simply that the Corps did in fact make the determinations required by section 404(e).
Id. at 502 n. 6.
Following the Court of Appeals’ decision and remand, OVEC renewed its motion for Summary Judgment on its remaining claims. As noted by the Court of Appeals, the remaining claims were based on the Corps’ alleged arbitrary and capricious determination under NEPA and CWA with respect to NWP 21 (2002). OVEC asked the court to: declare NWP 21 (2002) to be unlawful under CWA, NEPA, and the APA; vacate it and set it aside; enjoin the Corps from issuing any further NWP 21 (2002) authorizations in this District; require the Corps to complete an EIS that complies with NEPA; and award costs and expenses. OVEC also requested that the court cancel any NWP 21 (2002) authorizations issued in this district between the time of the court’s prior injunction and the date that the injunction was lifted by the Court of Appeals.
Since the Court of Appeals’ decision and OVEC’s renewed motion for Summary Judgment, NWP 21 (2002) expired. On May 31, 2007,1 granted OVEC’s motion to file a Supplemental Complaint
8
challeng
II. Jurisdiction
The Corps and the Intervenors
10
have challenged the justiciability of OVEC’s claims. They first argue that OVEC’s challenge to NWP 21 (2002) is moot. The Intervenors further argue that OVEC’s challenge to NWP 21 (2007) is not ripe, and that OVEC lacks standing to challenge NWP 21 (2007). The Corps also asserts that some of OVEC’s claims are barred by the statute of limitations. Because a court must assure itself of jurisdiction before reaching the merits of a dispute, I will address these challenges first.
See St. Paul Fire & Marine Ins. Co. v. Barry,
A. OVEC’s Remaining NWP 21 (2002) Claims Are Moot
Article III of the Constitution limits the court’s jurisdiction to “actual, ongoing controversies.”
Honig v. Doe,
The mootness question in this case involves OVEC’s remaining claims to NWP 21 (2002) after the Fourth Circuit Court of Appeals’ decision in OVEC II. As I have discussed, those claims include challenges to the Corps’ minimal impacts determination under CWA and its insignificant cumulative impacts determination under NEPA. The Intervenors argue that OVEC’s facial challenge to NWP 21 (2002) is moot because the permit became “inoperable” and “null and void” on its expiration date, March 19, 2007. (Intervenor’s Supp. Br. 5 [Docket 175].) Because the Corps may not authorize any new activities after the date of expiration, they argue, there is nothing for the court to enjoin that would provide effective relief. (Id. at 5-6.) The Intervenors further argue that OVEC’s challenge to individual authorizations made under NWP 21 (2002) is also moot because none of the mining operations identified by OVEC as being authorized under NWP 21 (2002) currently continue the authorized activities or seek further authorization under NWP 21 (2007). (Id. at 6; Intervenor’s Resp. Opp’n OVEC’s Renewed Mot. Summ. J. 3 [Docket 163].)
OVEC argues that its CWA claims are not moоt because activities authorized under NWP 21 (2002) that commenced prior to the expiration date may continue for a twelve-month extension period. (OVEC’s Supp. Mem. 1 [Docket 173].) As observed by OVEC, the Corps retains discretionary authority to “modify, suspend, or revoke NWP authorizations,” which includes the ability to impose “additional or revised terms or conditions on the authorization,” 33 C.F.R. § 330.4(e), throughout the life of the nationwide permit, a time period which extends to the five year permit period and the twelve-month extension. 11 OVEC further argues that its claims are not moot because several of the Corps’ authorizations under NWP 21 (2002) were conditioned on monitoring and mitigation plans that would continue for many years, even after the permit and its authorizations have expired. (Id. at 2.)
I FIND that because the twelvemonth extension period for NWP 21 (2002) ended on March 18, 2008, none of OVEC’s CWA claims present a “live controversy” with respect to NWP 21 (2002). The Corps can no longer authorize any activity under that permit and indeed no activities authorized by that permit continue to be or even can be in operation at this time because the twelve-month extension period has run. Moreover, I can provide no relief to OVEC pursuant to these claims.
Incurrida v. Ozmint,
A well-established exception to mootness exists in cases where “the challenged conduct is capable of repetition but evades review.”
Kentuckians for Commonwealth, Inc. v. Rivenburgh (“Rivenburgh II”),
The challenged action in this case, the issuance of NWP 21 (2002) and the authorizations under that permit, remained justiciable for the five-year life plus twelvemonth extension of the permit.
See Rivenburgh,
I need not resolve the question of duration, however, because OVEC has not shown that it reasonably will be subject to the same action again. OVEC argues that the Corps, by reissuing NWP 21 in March 2007, has shown that OVEC not only will likely be subject to the “same action” again, but in fact have actually been subjected to the same action. (OVEC’s Supp. Br. 4.) According to OVEC, the Corps’ decision to issue NWP 21 (2007) “contains the same infirmities as its 2002 decision.” Id. Though OVEC raises several of the same challenges against the Corps’ decision to issue NWP 21 (2007) as they did with respect to NWP 21 (2002), the new permit is based on an entirely different administrative record. Actions based on a unique record cannot properly be repetitive. Therefore, this action does not fall -within the exception and I FIND that OVEC’s CWA claims with respect to NWP 21 (2002) are MOOT.
Moreover, I FIND that OVEC’s NEPA claim with respect to NWP 21 (2002) is MOOT. “[A] request for injunctive relief is moot when the event sought to be enjoined has occurred.”
Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs,
B. OVEC Has Standing to Assert Its NWP 21 (2007) Claims
The Intervenors also argue that OVEC lacks standing to challenge NWP 21 (2007). I FIND that OVEC has standing to challenge the issuance of NWP 21 (2007) because its members “visit, live near, recreate near, drive by and/or fly over areas of the state that are visibly harmed by valley fills, surface impoundments, and related surface mining activities.”
OVEC I,
The only difference in those findings with respect to the new NWP 21 (2007) claims is that at the time OVEC filed the 2007 claims, no authorizations had occurred under NWP 21 (2007). Nevertheless, I FIND OVEC’s alleged injuries with respect to NWP 21 (2007) are still actual and imminent. An injury can be actual and imminent without specific authorizations under the challenged permit.
See La. Envtl. Action Network v. EPA
In addition, my determination of harm is influenced by the fact that the Corps is not required to provide the public, including OVEC, with notice of a particular permit authorization or an opportunity to challenge it. Instead, upon receipt of the authorization, permittees can immediately begin discharging dredged and fill materials without OVEC’s knowledge. As I noted in
OVEC I,
the harm caused by the issuance of NWP 21 is immediate, irreversible, and difficult to monitor.
See OVEC I,
C. OVEC’s NWP 21 (2007) Claims Are Ripe
The Intervenors further argue that OVEC’s CWA challenges to NWP 21 (2007) are not ripe for judicial review. In my prior opinion, I found OVEC’s similar challenge to NWP 21 (2002) was ripe. The only difference in this case is that the record does not reflect that any individual projects have received authorization under NWP 21 (2007). 12 This does not render OVEC’s claims premature because upon issuance, NWP 21 (2007) was a final agency action which immediately altered the rights of OVEC and cause an immediate injury.
The Supreme Court in
Ohio Forestry Association, Inc. v. Sierra Club,
As discussed above, the injury to OVEC is imminent because, I have found, OVEC has no opportunity to challenge individual authorizations once the permit has been issued. Thus, not considering OVEC’s facial challenge to NWP 21 (2007) would cause OVEC hardship, satisfying the first
Ohio Forestry
requirement.
13
As for the
As to the third factor, no further development of the issues presented is required because “[wjhile the details of specific NWP 21 projects can be elaborate, the substance of NWP 21 is simple. Whether it complies with the Clean Water Act is a purely legal question that cоurts are well-equipped to consider.”
OVEC I,
D. OVEC’s NWP 21 (2007) Claims Are Not Barred By The Statute of Limitations
Finally, the Corps argues that OVEC, by challenging the Corps’ reliance on compensatory mitigation in making its NWP 21 (2007) minimal impacts determination, is actually challenging 33 C.F.R. § 330.1(e)(3). (Corps’ Mem. Opp’n OVEC’s Mot. Summ. J. Supplemental Compl. 26.) That regulation allows the Corps to consider compensatory mitigation when evaluating individual authorizations under a general NWP. 14 33 C.F.R. § 330.1(e)(3). According to the Corps, that type of challenge is barred by the applicable six-year statute of limitations for suits against the United States, 28 U.S.C. § 2401(a). (Corps’ Mem. Opp’n OVEC’s Mot. Summ. J. Supp. Compl. 26.)
The Corps’ argument is not persuasive. First, OVEC does not challenge the regulation in its Supplemental Complaint, but instead disputes whether the Corps’ reliance on mitigation was rational in reaching its minimal impacts determination for NWP 21 (2007). (OVEC’s Mem. Supp. Mot. Summ. J. Supplemental Compl. 12-14; Supplemental Compl. ¶ 30.) Second, the regulation has to do with post-issuance measures — the Corps’ environmental impact evaluation for individual authoriza
III. OVEC’s Challenges To NWP 21 (2007)
Because I have found that OVEC’s challenges to NWP 21 (2002) are moot, OVEC’s only remaining claims are those raised in its Supplemental Complaint involving NWP 21 (2007). In that Complaint, OVEC alleges that the Corps’ decision to issue NWP 21 (2007) was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law in violation of the APA, CWA, and NEPA. OVEC filed for summary judgment on those claims [Docket 211], and the Corps filed a cross-motion for summary judgment [Docket 221].
A. Standard Of Review
Summary judgment is appropriate when the pleadings and the record demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The claims in this case, however, involve the Corps’ issuance of a NWP, which is a final agency action subject to judicial review under the APA, 5 U.S.C. § 702.
Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs,
Under the APA, a court must hold unlawful and set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In applying this standard of review, a court considers “whether the agency considered the relevant factors and whether a clear error of judgment was made.”
Aracoma Coal,
“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.”
Motor Vehicle Mfrs. Ass’n,
I have carefully examined the entire administrative record before the Corps at the time it made the environmental impact determinations as to NWP 21 (2007).
See 5
U.S.C. § 706;
see also OVEC Huntington,
B. The Corps Adequately Responded To Public Comments
OVEC first argues that the Corps has violated CWA and the APA by failing to respond to public comments on its minimal effects determination for NWP 21 (2007). (OVEC’s Mem. Supp. Mot. Summ. J. Supplemental Compl. 3-12.) Specifically, OVEC asserts that the Corps failed to respond to comments identifying significant environmental impacts that would be caused by activities authorized under NWP 21 (2007).
(Id.
at 6.) This failure, OVEC argues, was a violation of the APA, which requires agencies engaged in rule-making to provide an opportunity for public comment, to consider those comments, and then to “incorporate in the rules adopted a concise general statement of their basis and purpose.”
(Id.
at 4-5) (citing 5 U.S.C. § 553(c)). The Corps argues that it did respond to OVEC’s comments by conceding the uncertain success of compensatory mitigation and by “tailoring [NWP 21 (2007) ] to address [OVEC’s] concerns.”
16
(Corps’ Mem. Opp’n OVEC’s
1. The APA Requires The Corps To Reasonably Respond To Public Comments
The APA requires federal agencies engaged in rulemaking to provide the public with an opportunity to comment on the rule, to then consider the comments, and finally to “incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C. § 553(c). “[T]he detail required in a statement of basis and purpose depends on the subject of regulation and the nature of the comments received.”
Action on Smoking & Health v. CAB,
The statement of the rule’s basis and purpose must also be sufficient to allow meaningful judicial review. The purpose of the APA’s “concise general statement” requirement, along with the APA’s other required rulemaking procedures, is “to assist judicial review as well as to provide fair treatment for persons affected by the rule.”
Home Box Office, Inc. v. FCC,
2. The Corps Reasonably Responded To Public Comments
OVEC submitted comments to the Corps regarding its decision to reissue NWP 21 (2007). (OVEC’s Mot. Summ. J. Supplemental Compl., Ex. 8, OVEC Comments AR-750-0 (“OVEC Comments”).) Amongst their many concerns about the permit, OVEC asserted that the activities authorized by NWP 21 (2007) would cause significant individual and cumulative impacts on the environment, including the degradation of streams, water quality, and aquatic diversity. (Id. at 4-11.) OVEC also asserted that there is no evidence showing the effectiveness of compensatory mitigation in achieving the minimal environmental impacts required by CWA and NEPA. (Id. at 20.) OVEC supported these assertions with numerous reports and testimony from scientists and other federal agencies.
The Corps recognized these comments in its 2007 Decision Document. In response to comments about the significant environmental impacts caused by activities that would be authorized under NWP 21 (2007), the Corps stated:
We believe our process for NWP 21 ensures that activities authorized by the NWP result in no more than minimal adverse impacts to the aquatic environment because each project is reviewed on a case-by-case basis and the district engineer either makes a minimal impacts determination on the project or asserts discretionary authority and requires an individual permit.
2007 Decision Document 10. The Corps also acknowledged the commenters’ criticism that compensatory mitigation is not reliable and responded:
Compensatory mitigation is an important mechanism to help ensure that the NWPs authorize activities that result in minimal individual and cumulative adverse effects on the aquatic environmental [sic]. We acknowledge that the ecological success of compensatory mitigation projects varies widely. Some compensatory mitigation projects fail to meet their objectives, while others do result in successful replacement of aquatic resource functions that are lost as a result of activities authorized by NWPs. We are committed to improving compliance for compensatory mitigation required for Department of Army permits, including NWPs.... [I]f the proposed activity will result in more than minimal adverse effects оn the aquatic environment after determining that compensatory mitigation is not appropriate or practicable, then an individual permit would be required.
72 Fed. Reg. 11100. Id. The Corps also indicated that it would strengthen its compensatory mitigation requirements by
add[ing] permit conditions that require compensatory mitigation that meets specified success criteria. The Corps will generally require the permittee to monitor the mitigation site for five years and, if the mitigation site does not meet the success criteria at that time, remediation or additional mitigation will be required.
2007 Decision Document 9.
I FIND that these responses satisfy the Corps’ statutory obligation to reasonably respond to public comments. The Corps acknowledged the environmental impacts identified by the commenters and explained the basis for its conclusion that compensatory mitigation would successfully minimize those impacts. The explanation is sufficient for this court to review the reasonableness of the Corps’ decision. It is to that evaluation that I now turn.
C. The Scope Of Corps’ NEPA Analysis Was Not Arbitrary And Capricious
OVEC asserts that the Corps’ analysis of the environmental impacts of NWP 21 (2007) was too narrow because the Corps considered only impacts on the aquatic environment.
17
OVEC argues that the Corps was required to consider “impacts on the riparian and upland areas buried by the valley fills.” (OVEC’s Mem. Supp. Mot. Summ. J. Supplemental Compl. 26.) In response, the Corps asserts that its EA was sufficient because its regulations require the impact analysis to be based on the “specific activity requiring a [Department of Army] permit and those portions of the entire project over which the [Corps] district engineer has sufficient control and responsibility to warrant Federal review.” 33 C.F.R. Part 325, App. B § 7(b)(1). The Corps argues that it “simply does not exercise sufficient control and
The Fourth Circuit Court of Appeals addressed this question in
Aracoma Coal,
The Court of Appeals disagreed with the plaintiffs. Explaining that “[t]he specific activity that the Corps is permitting when it issues a § 404 permit is nothing more than the filling of jurisdictional waters .... ” and that the Corps did not have sufficient control over the entire valley fill project, the court held that the Corps reasonably identified the proper scope of review pursuant to its regulations. Id. at 194. Therefore, the Corps’ determination of the scope of its NEPA review was not arbitrary or capricious. Id.
Though this case involves a nationwide permit rather than an individual permit, OVEC’s challenge involves the same permitted activity, the same scope of analysis, and the same Corps regulation as in Ara-coma Coal. In light of the Court of Appeals’s holding, I FIND that the Corps’ decision to limit the scope of its NEPA review to aquatic environmental impacts was not arbitrary or capricious.
D. The Corps’ Cumulative Impacts Analysis Was Deficient Under NEPA
OVEC’s other NEPA challenge in this case arises from the Corps’ decision not to prepare an EIS with respect to NWP 21 (2007). According to the Corps, it was not required to prepare an EIS because NWP 21 (2007), like all of the nationwide permits, “authorize^] activities that have minimal individual and cumulative adverse effects on the aquatic environment. ... The NWPs do not reach the level of significance required for an EIS.”
In determining whether a proposed project will have a significant impact on the environment, the Corps must consider the reasonably anticipated cumulative impacts of a proposed project.
See
40 C.F.R. § 1508.27(b)(7);
Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin.,
The Corps’ cumulative impacts analysis consisted primarily of the estimated number of times NWP 21 (2007) would be used on a national basis. Based on the number of times NWP 21 was used in previous years, the Corps acknowledged that “[u]sing the current trend, approximately 1,085 activities could be authorized over a five year period until this NWP expires, resulting in impacts to approximately 320 acres of waters of the United States, including jurisdictional wetlands.” (2007 Decision Document 22.) The Corps also explained that “Approximately 540 acres of compensatory mitigation” would be required and would “attenuate cumulative impacts on the Nation’s aquatic resources, so that the net effects on the aquatic environment resulting from the activities authorized by this NWP will be minimal.” (Id.) Also, if a division or district engineer were to determine that the cumulative impacts in a specific watershed or geographic area would be more than minimal, then the division or district engineer could require additional conditions to the NWP or require individual permits for activities in that area, or revoke the permit altogether. (Id.)
I FIND that the Corps’ cumulative impacts analysis with respect to NWP 21 (2007) was inadequate for two reasons. First, the Corps failed to consider the continuing impacts of past actions which is a relevant factor for a cumulative impacts analysis. Second, the Corps failed to explain and provide a rational explanation for its conclusion that “compensatory mitigation will attenuate cumulative impacts.” Because the Corps’ inadequate cumulative impacts analysis constitutes a failure to take a “hard look” at NWP 21 (2007)’s environmental impacts as required by NEPA, I further FIND that the Corps’ decision not to prepare an EIS was arbitrary and capricious.
Before discussing the merits of this issue, I note that this conclusion is not barred by the Fourth Circuit Court of Appeals’ decision in
OVEC II.
In
OVEC II,
the Court of Appeals held that the Corps had made the minimal impacts determination required by CWA and that the Corps needs only to make a “reasoned prediction” regarding the permit’s environmental impacts in order to satisfy CWA’s substantive requirements.
OVEC II,
OVEC asserts that the Corps’ cumulative impacts analysis for NWP 21 (2007) was deficient because the Corps failed to consider the ongoing effects of past actions. The Corps’ obligation to consider the ongoing effects of past actions is part of its statutory obligation to consider cumulative impacts under NEPA. See 40 C.F.R. § 1508.7. Agencies are not required, however, to list or analyze all of the effects of individual past actions. According to a guidance document produced by the Council on Environmental Quality, “review of past actions is required to the extent that this review informs agency decisionmaking regarding the proposed action.” (Corps’ Mem. Opp’n OVEC’s Mot. Summ. J. Supplemental Compl., Ex. 4, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis (“CEQ Guidance”), at 1.) The Corps has substantial discretion to determine “the extent of such inquiry and the appropriate level of explanation.” (Id. at 2.) The present effects of past actions are only relevant to the extent that they assist the agency in determining whether the “reasonably foreseeable effects of the agency proposal for action and its alternatives may have a continuing, additive and significant relationship to those effects.” (Id. at 1.)
In response to comments that the Corps’ “cumulative effects analysis should include information on the past use of NWPs,”
Except for a few activities, the NWPs do not authorize activities of a continuing nature. In general, they authorize construction activities with specific start and end dates. The NWPs can be issued for only a period of five years or less, and once an NWP expires, it cannot be used to authorize activities in waters of the United States. An activity must then be authorized by the reissued NWP, another NWP, a regional general permit, or an individual permit. Therefore, the cumulative effects analysis is more properly focused on permits that can be used to authorize regulated activities, not past permits that have expired.
The Corps committed clear error in declining to even consider the effects of past activities based on the fact that the activities are not “continuing in nature.” Even if the individual projects (i.e. the dredging and filling) authorized under past NWP 21
I need not credit the Corps’ additional argument that its decision not to consider past actions was proper because the effects of past NWP 21 authorizations are not continuing. (Corps’ Mem. Opp’n OVEC’s Mot. Summ. J. Supplemental Compl. 22.) There is no evidence in the Final Notice
20
or in the 2007 Decision Document indicating that the Corps made any determination about the continuing
effects
of past mountaintop mining discharge authorizations. I will not accept the
post hoc
rationalizations of the Corps’ counsel as support for the Corps’ decision.
21
See Cone Mills Corp. v. NLRB,
The loss of thousands of miles of streams in Appalachia over the past twenty years, and the loss of over 200 miles of streams in West Virginia alone, vividly illustrates the impacts associated with mountaintop mining. DPEIS at IIID-2, IIIK-49.
22
Since 2002, NWP 21 authoriza
2. The Corps’ Cumulative Impacts Analysis Was Conclusory
OVEC also challenges the Corps’ cumulative impacts analysis under NEPA on the basis that it was conclusory. (OVEC’s Mem. Supp. Mot. Summ. J. Supplemental Compl. 27.) The Corps’ cumulative impacts analysis was limited to four points: (1) NWP 21 (2007) would result in impacts to approximately 320 acres of waters; (2) the Corps would require approximately 540 acres of compensatory mitigation to offset those impacts; (3) compensatory mitigation would “attenuate” the cumulative impacts and ensure minimal “net effects on the aquatic environment resulting from activities authorized by this NWP”; and (4) the district and division engineers’ authority to “conduct more detailed assessments for geographic areas that are determined to be potentially subject to more than cumulative adverse effects” would ensure minimal cumulative impacts. 2007 Decision Document 21-22. According to this analysis, it appears that the Corps implicitly conceded that the permit would cause significant cumulative environmental impacts. Without discussing the nature of those impacts, 23 the Corps relied exclusively on the presumed success of compensatory mitigation and later regional determinations in deciding that NWP 21 (2007)’s cumulative impacts would be minimal.
I FIND that the Corps’ cumulative impacts determination was conclusory because it relied on an unsupported belief in the success of mitigation measures. Though the Corps has incorporated mitigation options and procedures for NWP 21 (2007) activities, the “mere listing” of mitigation measures and processes, without any analysis, cannot support a cumulative impacts determination.
See Nat’l Parks & Conservation Ass’n v. Babbitt,
a. The Corps’ Reliance On Compensatory Mitigation Was Unsupported
When conducting a NEPA-required environmental review, an agency may consider the ameliorative effects of mitigation in determining the environmental impacts of an activity.
See O’Reilly v. U.S. Army Corps of Eng’rs,
When an agency relies on mitigation to reduce the impacts of an activity to insignificance, “the Corps’ obligation to discuss
In this case, the Corps relied on anticipated mitigation to reduce the cumulative impacts to an insignificant level. In conducting its analysis, the Corps did not rely on any specific mitigation measures tailored to the impacts of NWP 21 (2007), but instead relied on a review
process
that would identify necessary and appropriate mitigation measures at a later time and on a case-by-case basis.
24
See
We believe our process for NWP 21 ensure that activities authorized by the NWP result in no more than minimal adverse impacts to the aquatic environment because each project is reviewed on a case by case basis and the district engineer either makes a minimal impacts determination on the project or asserts discretionary authority and requires an individual permit.
2007 Decision Document 10;
see also id.
at 21;
The Corps has satisfied the first criterion to establish a justified reliance on the mitigation process because the mitigation process is “so integrated into the initial proposal that it is impossible to define the proposal without mitigation.”
Sierra Club Florida,
The second criterion is whether there is sufficient assurance that the measures relied upon will lead to actual mitigation.
Wyo. Outdoor Council,
Because the Corps has not provided any evidence that its proposed mitigation process would be successful, it must at least show that its mitigation process will be adequately policed.
Wyo. Outdoor Council,
Compensatory mitigation requirements will be determined by district engineers on a case-by-case basis, after considering relevant and available information, such as the ecological conditions of the project site, the type of activity, the impacts of the activity on the aquatic environment and other public interest factors, and the type of aquatic resources that will be adversely affected by the NWP activity.
When it comes to the actual measures the district engineer should impose, however, the Corps provides a list of options with little guidance on how they should be selected or applied. For instance, General Condition 20 requires that “Compensatory mitigation at a minimum one-for-one ration will be required for all wetland losses that exceed 1/10 acre and require preconstruction notification....”
Id.
at 11193. Also, “Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the establishment, maintenance, and legal protection ... of riparian areas next to open waters.”
29
Id.
Section (d) of General Condition 20 states that “[f] or losses of streams or other open waters that require pre-construction notification, the district engineer may require compensatory mitigation, such as stream restoration, to ensure that the activity results in minimal adverse effects on the aquatic environment.”
General Condition 27 provides even fewer specifics on the type of mitigation measures that will ensure the minimal impacts of an NWP 21 (2007) activity.
Cf. Wetlands Action Network,
The deficiency of the generalized,
post hoc
mitigation plan proposed by the Corps becomes more apparent when contrasted with other mitigation plans found by courts to be reliable. For instance, in
Greater Yellowstone Coalition,
the court found that the Corps had, in reaching its FONSI, reasonably relied upon a mitigation plan that had been developed after extensive study into the effects of the proposed project on bald eagles, and which included “a number of mitigation measures designed to reduce the potential impacts on bald eagles,” including “close daily monitoring of active eagle nests during the construction process, with the requirement that construction be modified immediately if eagle disturbance is observed.”
Because the Corps’ list of mitigation measures and general mitigation plan requirements do not provide any explanation or analysis showing why mitigation at NWP 21 (2007) sites will successfully minimize the cumulative impacts from the permit, I am left with nothing but the Corps’ unsupported belief in that conclusion. The Corps’ conclusory statement is rendered even less convincing by the Corps’ concession that mitigation plans sometimes fail. 72 Fed. Reg. At 11100 (“We acknowledge that the ecological success of mitigation projects varies widely. Some compensatory mitigation projects fail to meet their objectives, while others do result in successful replacement of aquatic resource functions that are lost as a result of activities authorized by NWPs.”) The Corps did repeatedly express its commitment to the success of mitigation and a promise to increase its efforts.
See id.
(“We are committed to improving compliance for compensatory mitigation .... ”);
id.
at 11115 (“The Corps has increased its compliance efforts to ensure that projects authorized by DA permits are constructed as authorized and that mitigation is successful.”). Yet the Corps did not describe the increased efforts anywhere in its Final Notice or 2007 Decision Document.
31
The Corps’ expressed commitment and increased effort to improve compliance cannot substitute for a reasoned explanation of why it believes the proposed mitigation process will successfully ensure minimal cumulative impacts. Though this court will not require the Corps to make an
ex ante
guarantee that its mitigation process will be successful, the Corps must offer something more substantive than a mere promise. Because the Corps has not demonstrated any assurance that the post-issuance review of a proposed activity will ensure that a proposed project has less than significant environmental impacts, the Corps’ statements are “little more than its own promise to obey the law.”
OVEC II,
In short, “[a] ‘mitigated to insignificance’ analysis does not suffice to
b. The Corps’ Reliance On Regional Assessments Does Not Support Its Cumulative Impacts Determination.
The Corps’ reliance on district and division engineers’ review of cumulative impacts on a regional or watershed basis cannot save the Corps’ analysis. A deferred determination of NWP 21 (2007)’s cumulative impacts on a regional or watershed basis or for an individually authorized activity cannot compensate for the absence of a nationwide cumulative impacts determination. “By their very nature, the ‘cumulative impacts’ of a general permit cannot be evaluated in the context of a single project.”
Wyo. Outdoor Council,
c. The Corps’ FONSI Was Arbitrary And Capricious
For the reasons discussed above, I FIND that the Corps’ reliance on compensatory mitigation and regional assessments in reaching its FONSI was arbitrary and capricious under the APA. The Corps did not explain its conclusion or articulate a “rational connection between the facts found and the choice made.”
Motor Vehicle Mfrs. Ass’n,
I recognize that the Corps’ inability to specify mitigation measures and to evaluate their success stems from the Corps’ initial difficulty in discussing with any detail the anticipated cumulative impacts of NWP 21 (2007).
32
Indeed, the Corps need not and cannot anticipate every possible impact. As the Court of Appeals reminded this court, “it is impossible for the Corps’
ex ante
determination of minimal impacts to be anything more than reasoned predictions.”
OVEC II,
E. The Corps’ Individual Impacts Determination Under CWA Was Reasonable, But The Corp’s Cumulative Impacts Determination Under CWA Was Arbitrary And Capricious
OVEC next challenges both the Corps’ individual minimal adverse environmental effects determination and its minimal cumulative environmental effects determination under CWA. CWA requires two distinct minimal impacts determinations.
33
33 U.S.C. § 1344(e). The first is a determination that the individual impacts of each
I FIND that the Corps’ individual impacts determination was reasonable because it constituted a reasoned prediction based on several factors, including the general conditions attached to NWP 21 (2007), the contribution of other agencies’ environmental review processes, an evaluation of the impacts of individual authorizations, and also, the PCN process. I also FIND, however, that the Corps’ cumulative impacts determination was arbitrary and capricious under the APA, because unlike the individual impacts determination, the Corps’ cumulative impacts determination relied exclusively on a mitigation process with no demonstrable insurance of success. The Corps cannot forecast the cumulative impacts of the NWP 21 (2007) authorizations based solely on that unsupported mitigation plan. Because the Corps’ cumulative impacts determination was arbitrary and capricious, this matter is REMANDED for further findings.
I note that OVEC’s challenge to Corps’ CWA determinations requires a distinct analysis from that of the Corps’ NEPA’s cumulative impacts determination. Significantly, my analysis of OVEC’s CWA claims is informed by the Fourth Circuit Court of Appeals’s opinion in
OVEC II,
which did not discuss NEPA, but did provide guidance as to the proper analysis of the Corps’ CWA impact determinations. In that case, the Court of Appeals identified the types of factors that could support those determinations. These factors included NWP 21 (2002)’s incorporation of the Surface Mining Control and Reclamation Act (“SMCRA”) requirements and general nationwide permit conditions, consideration of the “nature of the coal-mining activities authorized by NWP 21 [ (2002) ],” and information from previous NWP 21 usage.
The Court of Appeals also explained that the Corps’ minimal impacts determination would be inherently uncertain in the context of the nationwide permit because “the Corps must attempt to forecast the environmental effects the authorized activities could have if undertaken anywhere in the country under any set of circumstances.”
OVEC II,
1. The Corps’ Individual Impacts Determination Under CWA Was Reasonable
OVEC argues that the Corps failed to comply with CWA § 401(e) because its determination that NWP 21 (2007) would only have minimal individual adverse environmental impacts was arbitrary and capricious. Specifically, OVEC argues that the Corps’ determination relied on compensatory mitigation to offset adverse impacts without providing any evidence that compensatory mitigation could
The record shows that the Corps did heavily rely on mitigation in reaching its minimal impacts determination for NWP 21 (2007). The Corps declared that “the discharges authorized by this NWP comply with the [CWA], with the inclusion of appropriate and practicable conditions, including mitigation, necessary to minimize adverse effects on affected aquatic ecosystems.” 2007 Decision Document 37. The central role of mitigation in the Corps’ determination was further highlighted in its response to public comments. 72 Fed. Reg. At 11100. The Corps’ reliance on compensatory mitigation was inextricably connected to a reliance on the PCN procedures. The Corps explained that the PCN requirement for NWP 21 (2007) authorizations “helps ensure that no activity authorized by this permit will result in greater than minimal adverse impacts, either individually or cumulatively, on the aquatic environment, because it requires a case-by-case review of each project.” 2007 Decision Document 5. As the Corps further elaborated:
The pre-construction notification requirements of all NWPs allow for case-by-case review of activities that have the potential to result in more than minimal adverse effects to the aquatic environment. If the adverse effects on the aquatic environment are more than minimal, then the district engineer can either add special conditions to the NWP authorization to ensure that the activity results in no more than minimal adverse environmental effects or exercise discretionary authority to require an individual permit____NWP 21 requires written verification before the project can proceed. This ensures that adequate time is available to the Corps to review the extensive documentation that pre-construction notifications for NWP 21 often include, coordinate with other agencies as necessary, and determine whether exercise of discretionary authority is necessary to ensure no more than minimal effects.
2007 Decision Document 6. Indeed, this reference to the PCN process was the Corps’ sole response to public comments criticizing the Corps as having “no reasoned basis or substantial evidence to support its determinations that the individual or cumulative environmental impacts associated with NWP 21 [ (2007) ] will be minimal”:
We believe our process for NWP 21 [ (2007) ] ensures that activities authorized by the NWP result in no more than minimal adverse impacts to the aquatic environment because each project is reviewed on a case-by-case basis and the district engineer either makes a minimal impacts determination on the project or asserts discretionary authority and requires and individual permit. Additionally, as noted above, division engineers can add regional conditions to any NWP to further restrict the use of the NWP to ensure that the NWP authorizes only activities with no more than minimal adverse effects on the aquatic environment in a particular watershed or other geographic region.
Id.
at 10;
see also
Although the Corps relied most heavily on the PCN, it did consider other factors. First, the Corps relied on the application
2. The Corps’ Cumulative Impacts Determination Under CWA Was Arbitrary And Capricious
OVEC’s objections to the Corps’ CWA cumulative impacts determination echoes its objections to the Corps’ NEPA cumulative impacts analysis, which I have found to be deficient. First, OVEC argues that the Corps had no reasonable basis for its determination. (OVEC’s Mem. Supp. Mot. Summ. J. Supplemental Compl. 14.) Second, OVEC argues that the Corps did not respond meaningfully to public comments concerning NWP 21 (2007)’s cumulative impacts. (Id.) Because I have already concluded that the Corps’ response to public comments was adequate, I will now only address the Corps’ cumulative impacts determination.
As an initial matter, I note that the phrase “cumulative impacts” has a different meaning within the context of CWA § 404 than it does under NEPA. Under CWA:
Cumulative impacts are the changes in an aquatic ecosystem that are attributable to the collective effect of a number of individual discharges of dredged or fill material. Although the impact of a particular discharge may constitute a minor change in itself, the cumulative effect of numerous such piecemeal changes can result in a major impairment of the water resources and interfere with the productivity and water quality of existing aquatic ecosystems.
40 C.F.R. § 230.11. Thus, while cumulative impacts under NEPA includes the impacts caused by related activities conducted by other persons and entities, under CWA, it only includes the “collective impacts” from the individual discharges of dredged or fill material authorized by the permit.
This difference in definition means that the Corps’ CWA cumulative impacts determination is less infirm than its NEPA analysis because the Corps’ failure to consider factors such as the continuing effects of past actions is irrelevant under the CWA. Indeed, the Corps’ estimate based on previous NWP 21 use of the total impacted acreage is a reasonable prediction of the permit’s cumulative impacts.
See
2007 Decision Document 22. But the Corps’ conclusion that these cumulative impacts would be minimal relied solely on the prospect of successful mitigation. Though the Corps’ discussion of the general conditions, public interest review factors, and § 404(b)(1) Guidelines is informative with respect to the individual impacts of specific authorizations, it does not provide any information about the cumulative impacts оf those authorizations. Accordingly, the Corps’ minimal cumulative impacts determination is also faulty under CWA because, like its NEPA cumulative impacts analysis, it is based on the success of a mitigation process whose success is not supported by the Corps’ analysis.
See Wyo. Outdoor Council,
F. The Corps’ Decision Not To Impose A Limit on Streams Was Not Arbitrary And Capricious
OVEC also argues that the Corps arbitrarily and capriciously decided not to impose a quantifiable limit on the filling of perennial streams. 38 (OVEC’s Mem. Supp. Mot. Summ. J. Supplemental Compl. 23-25.) OVEC observes that five other nationwide permits, NWPs 29, 39, 40, 42 and 43, cannot be used to fill more than 300 feet of perennial stream, but that no such limit exists for NWP 21 (2007). (Id. at 23) Because the Corps has failed to explain why it has treated these permits differently, OVEC argues, its decision was arbitrary and capricious. (Id. at 25.)
The Corps responds that the “[differences in the nature of the activities, as well as differences in the circumstances in which the fill occurs, merit different regulatory approaches [to nationwide permits.]” (Corps’ Mem. Opp’n OVEC’s Mem. Supp. Summ. J. Supplemental Compl. 31.) The Corps observes that the forty-nine nationwide permits all have different fill limits: some have limits based on acreage, others on yards of fill or the
The Corps received numerous public comments concerning the imposition of a limit on the amount of fill that could be permitted under NWP 21 (2007). Many commenters suggested the inclusion of a 300 linear foot on filling perennial streams and other acreage or geography based limits. 2007 Decision Document 4; see also OVEC’s Notice Filing Excerpts Administrative Record, Ex. 5 at 8; Ex. 6 at 16-17; Ex. 7 at 28-29. Others objected to the imposition of the limit. 2007 Decision Document 4; see also Corps’ Mem. Opp’n OVEC’s Mot. Summ. J. Supplemental Compl., Ex. 2 at 5; Ex. 3 at 5-8, 12. In response to these comments, the Corps explained that the fill limit was not necessary because (1) environmental standards required by SMCRA generally ensured that NWP 21 (2007) activities would not result in greater than minimal adverse impacts on the environment, (2) the PCN requirement ensured that no NWP 21 (2007) activity would cause greater than minimal adverse impacts, and (3) that the Corps had no basis for imposing a nationwide limit on stream fill in light of the “vast differences” in coal mining techniques across the nation. 2007 Decision Document 5.
I FIND that the Corps’ decision not to impose a limit on stream fill was reasonable. The Corps considered the comments both supporting and opposing the limit and provided a reasoned response. Notably, NWP 21 (2007) requires a PCN
and
written authorization prior to commencing activity. 2007 Decision Document 1;
IV. CONCLUSION
The Corps may not use the nationwide permit process to circumvent its statutory obligations to thoroughly examine the environmental impacts of permitted activities. In this case, the Corps failed to evaluate the cumulative impacts of NWP 21 (2007) and that failure renders its permitting decision arbitrary and capricious under the APA.
For the reasons discussed above, the plaintiffs’ Motion for Summary Judgment on Their Supplemental Complaint is GRANTED [Docket 211] and the Corps’ Cross-Motion for Summary Judgment on the Supplemental Complaint is DENIED [Docket 221], Further, because I FIND that OVEC’s claims based on the Corps’ decision to issue NWP 21 in 2002 are moot, both OVEC’s Renewed Motion for Summary Judgment on Their Remaining Claims [Docket 155] and the Corps’ Cross-Motion on the Remaining Claims [Docket 165] are DENIED as moot.
OVEC has requested several forms of relief, including an injunction against further authorizations under NWP 21 (2007). In
OVEC I,
I confined the scope of injunctive relief to the Southern District of West
OVEC has additionally requested attorney’s fees and costs pursuant to 28 U.S.C. § 2412(d)(1). Section 2412(d)(1)(A) provides that
a court shall award to a prevailing party other than the United States fees and expenses ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
I FIND that the plaintiffs application for fees is premature under § 2412(d)(1)(B). Section 2412(d)(1)(B) requires that a party submit an application to the court for fees and demonstrate that it is a prevailing party under this section within thirty days of final judgment in an action. With that application, the plaintiff must submit an itemized statement of time and rates, and shall allege that the position of the United States was not substantially justified. 28 U.S.C. § 2412(d)(1). Only then will the court make a determination as to fees and costs. Accordingly, OVEC’s request for attorney’s fees and costs is DENIED without prejudice.
The court DIRECTS the Clerk to send a copy of this Order to Counsel of record and any unrepresented party. The court further DIRECTS the Clerk to post a copy of this published opinion on the court’s website, www.wvsd.uscourts.gov.
Notes
.
See, e.g., Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng’rs,
. The named defendants in this case have changed since the plaintiffs filed the initial complaint. The plaintiffs originally brought this action against Col. William Bulen, the Corps’ District Engineer for the Huntington District, and Lt. Gen. Robert B. Flowers, the Chief of Engineers and Commander of the U.S. Army Corps of Engineers. The plaintiffs’ Supplemental Complaint, filed on June 5, 2007, substituted Lt. Gen. Robert L. Van Antwerp and Col. Dana R. Hurst as defendants for Lt. Gen. Flowers and Col. Bulen, respectively [Docket 204], Because their actions are attributed to the Corps itself, I will refer to these defendants collectively as "the Corps.”
. Hereinafter, I will cite to this document as "2007 Decision Document.”
. The plaintiffs in this case include: Ohio Valley Environmental Coalition, Coal River Mountain Watch, and the Natural Resources Defense Council.
.I will refer to the nationwide permit issued in 2002 as "NWP 21 (2002).”
. The Court of Appeals stated:
given the inevitable ex ante uncertainty the Corps confronts when issuing a nationwide permit, its reliance on post-issuance procedures is a reasonable, if not the only possible, way for it to cement its determination that the projects it has authorized will have only minimal environmental impacts.
OVEC II,
. The Court of Appeals explained:
In concluding that section 404(e) permits the Corps to rely in part on post-issuance procedures to make its pre-issuance minimal-impact determinations, we do not suggest that section 404(e) permits the Corps completely to defer the minimal-impact determinations until after issuance of the permit. We would have substantial doubts about the Corps’ ability to issue a nationwide permit that relied solely on post-issuance, case-by-case determinations of minimal impact, with no general pre-issuance determinations. In such a case, the Corps’ "determinations” would consist of little more than its own promise to obey the law.
Id. at 502 (emphasis in original).
.I denied their motion to challenge the newly-issued NWPs 49 and 50 because these NWPs were not sufficiently related to OVEC’s original complaint.
. The 2002 version of NWP 21 was issued January 15, 2002, took effect March 18, 2002, and expired March 19, 2007. 67 Fed. Reg. 2020. On March 9, 2007, the Corps reauthorized NWP 21, to become effective March 19, 2007, and expire March 18, 2012. 72 Fed. Reg. 11092 (Mar. 12, 2007). The Corps reauthorized the permit after the required public review and comment but made no changes to the substance of NWP 21. 72 Fed. Reg. 11092, 11117.
. On April 15, 2004, I granted the motion of the West Virginia Coal Association, Kentucky Coal Association, Ohio Coal Association, Coal Operators and Associates, Inc., the National Mining Association, and Green Valley Coal Company to intervene as defendants [Docket 50]. On April 25, 2007, I granted the motion of Apogee Coal Company, LLC, to intervene as a defendant [Docket 184].
. In its entirety, the Corps’ implementing regulation regarding expiration directs:
If an NWP is not modified or reissued within five years of its effective date, it automatically expires and becomes null and void. Activities which have commenced (i.e., are under construction) or are under contract to commence in reliance upon an NWP will remain аuthorized provided the activity is completed within twelve months of the date of an NWP’s expiration, modification, or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization____Activities completed under the authorization of an NWP which was in effect at the time the activity was completed continue to be authorized by that NWP.
33 C.F.R. § 330.6(b).
. As I discussed above, it is highly likely that at least one project has received authorization under NWP 21 (2007) in the past two years.
. The Intervenors rely upon the discussion of
Wilderness Society
in
OVEC I
to argue that this challenge is not ripe. In OVEC
I,
I stated in a footnote that my finding of ripeness for site-specific authorizations complied with the Ninth Circuit Court of Appeals’ analysis in
Wilderness Society.
In
Wilderness Society,
the "Ninth Circuit found the plaintiffs’ 'general challenge to the Forest Plan’ not to be justiciable,” but determined that a site-specific challenge was justiciable.
See OVEC I,
The Intervenors' reliance upon this discussion is misplaced. First, in
OVEC I,
I held, after considering the factors developed in
Abbott Laboratories v. Gardner,
. 33 C.F.R. § 330.1(e)(3) states:
For some NWPs involving discharges into wetlands, the notification must include a wetland delineation. The [district engineer] will review the notification and determine if the individual and cumulative adverse environmental effects are more than minimal. If the adverse effects are more than minimal the [district engineer] will notify the prospective permittee that an individual permit is required or that the prospective permittee may propose measures to mitigate the loss of special aquatic sites, including wetlands, to reduce the adverse impacts to minimal. The prospective permittee may elect to propose mitigation with the original notification. The [district engineer] will consider that proposed mitigation when deciding if the impacts are minimal. The [district engineer] shall add activity-specific conditions to ensure that the mitigation will be accomplished. If sufficient mitigation cannot be developed to reduce the аdverse environmental effects to the minimal level, the [district engineer] will not allow authorization under the NWP and will instruct the prospective permittee on procedures to seek authorization under an individual permit.
(emphasis added).
. It is important to note that the minimal impact determination discussed in the regulation is distinct from the minimal impact determination made prior to the issuance of a NWP. Temporally, the former determination is made after the issuance of a NWP and during the notification period of an individual authorization while the latter is made prior to the issuance of the nationwide permit and is the determination challenged by OVEC in this case.
. OVEC also argues that the Corps’ failure to respond to public comments constituted a violation of the Corps’ duty “to provide the public with an opportunity to review and comment on its determination of minimal effects.” (Supplemental Compl. ¶ 30.b.) This argument is unavailing. Regardless of whether the Corps responded adequately to public comments, it is indisputable that the Corps did provide an
opportunity
for public comment.
See
72 Fed. Reg. 11092, 11092 (Mar. 12, 2007);
see also OVEC II,
. In the 2007 Decision Document, the Corps explained that: "The Corps [sic] evaluation of coal mining activities is focused on impacts to aquatic resources.... Under these circumstances, the Corps’ NEPA implementing regulations clearly restrict the Corps’ scope of analysis to impacts to aquatic resources." 2007 Decision Document 7.
. The Court of Appeals' latest opinion concerning § 404 permits does not affect this conclusion either.
Aracoma Coal
involved OVEC’s challenges to the Corps’ FONSI for four individual § 404 permits. OVEC challenged those FONSIs, arguing that the Corps, among other things, relied on unsupported mitigation measures and had conducted inadequate cumulative impact assessments of the proposed valley fills.
Aracoma Coal,
Moreover, the Court of Appeals’ cumulative impacts review supports my analysis in this case. In
Aracoma Coal,
the Court of Appeals explained that a “mitigated to insignificance” analysis alone does not satisfy the cumulative impacts analysis required by NEPA or CWA.
. In some parts of its memorandum, the Corps continues to appear to misunderstand the relevance of past actions. The Corps responds to OVEC’s contention that it did not consider the effects of past actions by arguing that its "decision to limit its cumulative impact analysis to the five year period during which the NWP 21 is valid is proper and not arbitrary and capricious." (Corps’ Mem. Opp'n OVEC's Mot. Summ. J. Supplemental Compl. 37; see also id. at 21.) OVEC does not, however, contest the Corps’ decision to assess the effects that will occur as a result of the current permit. Rather, OVEC disputes the Corps’ failure to consider the contribution of ongoing effects from past actions towards the cumulative effects that would occur during that five year period during which NWP 21 (2007) is in effect.
. The Final Notice published in the federal register is the Corps' final publication of its NWPs, including its response to comments. See 5 U.S.C. § 553(d).
. At any rate, the Corps’ argument is unavailing. Though I must credit an agency’s reasonable analysis based on an actual evaluation of the effects of past actions, I cannot accept a presumption, unsupported by evidence, that all past activities have been successfully mitigated or even that the mitigated impacts of past activities will not contribute to the cumulative impacts of futurе authorizations.
See O'Reilly v. U.S. Army Corps of Eng’rs, 477
F.3d 225, 235 (5th Cir.2007) ("We cannot accept th[e] presumption ... that when the individually 'mitigated-to-insignificant’ effects of this permit are added to the actual post-dredge and fill effects of 72 other permits issued to third parties ... that the result will not be
cumulatively
significant.”). Further, the Corps’ presumption is undermined by its concession that some compensatory mitigation projects fail to meet their objectives.
See
.This Draft Programmatic Environmental Impact Statement on Mountaintop Mining/Valley Fills in Appalachia — 2003 ("DPEIS”) was prepared by the Corps, the EPA, the Department of Interior’s Office of Surface Mining and Fish and Wildlife Service, and the West Virginia Department of Environmental Protection. This document was prepared to "evaluate options for improving agency programs under [federal statutes] that will contribute to reducing the adverse environmental impacts of mountain top mining operations and excess spoil valley fills (MTM/VF) in Appalachia.” PEIS at ES-1. The document includes a description of rele
. It is not evident that the Corps satisfied its obligation to discuss the cumulative impacts of NWP 21 (2007) even outside of its failure to discuss ongoing past actions. "Although ... 'certainty as to the cumulative effects of resource development projects require prophecy beyond the capabilities of both scientists and courts,’ the Corps must at least 'mention and discuss foreseeable [cumulative impact] problems.’ ”
Wyo. Outdoor Council v. U.S. Army Corps of Eng’rs,
. In
OVEC II,
the Fourth Circuit Court of Appeals explained that the Corps could rely on post-issuance procedures in reaching its CWA minimal impacts determination.
OVEC II,
. As discussed above, a permittee seeking authorization under NWP 21 (2007) must file a pre-construction notification ("PCN”) with the Corps and receive written authorization prior to commencing the proposed activity.
. There is some evidence in the record that the PCN process in fact does not work to ensure successful mitigation. Some commenters asserted that the Corps' development of mitigation through the PCN process for previous NWP 21 activities have not been successful.
See
OVEC Notice, Ex. 7, OVEC’s Comments on Corps Proposal to Reissue Nationwide Permits, at 21. Further, the Corps itself concedes that its mitigation measures are not always successful.
. The Corps failed to provide such evidence despite receiving and acknowledging comments alleging that specific mitigation measures identified by the Corps, such as stream creation, were not successful. 2007 Decision Document 8. The Corps did provide more support for the establishment of riparian areas as a compensatory mitigation measure. In its Final Notice, the Corps explained the important ecological functions of riparian areas and the role riparian areas can play in the restoration of the nation’s waters.
. The Corps responded to criticism of the its mitigation-based minimal impacts determination by stating:
In order to ensure that an activity results in no more thаn minimal adverse effect on the aquatic environment, the Corps will add permit conditions that require compensatory mitigation that meets specified success criteria. The Corps will generally require the permittee to monitor the mitigation site for five years and, if the mitigation site does not meet the success criteria at that time, remediation or additional mitigation will be required.
2007 Decision Document 9;
. Both of these mitigation measures, however, are subject to the district engineers’ discretion in their use and implementation.
See
. It appears that the mitigation plan is designed to afford the district and division engineers maximum flexibility in establishing a mitigation plan appropriate for a specific NWP 21 (2007) site.
See
. The Corps asserts that it added compensatory mitigation requirements, including additional mitigation and monitoring conditions to "tailor[] the 2007 NWP to address [OVEC’s] concеrns.” (Corps’ Mem. Opp’n OVEC’s Mot. Summ. J. Supplemental Compl. 19.) But NWP 21 (2007) was reissued as proposed with no changes.
. As the Corps explains with respect to NWP 21 (2007):
[T]his [environmental] assessment must be speculative or predictive in general terms. Since NWPs authorize activities across the nation, projects eligible for NWP authorization may be constructed in a wide variety of environmental settings. Therefore, it is difficult to predict all of the indirect impacts that may be associated with each activity by an NWP.
2007 Decision Document at 20;
see also OVEC II,
. Neither CWA nor the Corps' regulations define the terms "minimal” or “environmental.” The Corps has declined to define "minimal effects” as it applies to nationwide permits because "[ajquatic resource functions and values vary considerably across the country, and the minimal adverse effects criterion for general permit must be subjectively applied by district engineers.”
The parties do dispute, however, the meaning of the term "environment.” OVEC argues that in order to satisfy CWA, the Corps must look at the effect the activities will have on the entire environment, that is, the aquatic and non-aquatic environment. The Corps admits that it only considered the "aquatic environment” but argues that the statutory language only requires consideration of the aquatic environment. In addition, the Corps cites the 404(b)(1) Guidelines, which require only that the cumulative effect on "water quality and the aquatic environment” be minimal. 40 C.F.R. § 230.7(a). Here, OVEC does not challenge the Corps’ interpretation of the term "environmental” in CWA, alleging only that the Corps' action failed to satisfy the statute. Other courts have noted the discrepancy between the language of CWA and the § 404(b)(1) Guidelines with respect to the term "environment” but have declined to rule
. The Corps did explain the benefits of making minimal impacts determinations on an
.See also 2007 Decision Document 23 (finding that General Condition 6 would control adverse effects to the chemical composition of the aquatic environment); id. at 24 (finding that General Condition 18 prevents authorization of activities affecting historic places); id. (finding that General Conditions 2, 3, 4 and 5 will help reduce adverse effects on fish and wildlife values); id. at 25 (finding that General Conditions 9 and 10 will help ensure minimal adverse impacts on flood hazards); id. (finding that General Condition 1 will prevent more than minimal adverse impacts on navigation activities); id. at 32 (finding that General Condition 17 prevents activities that will affect endangered species or critical habitats).
. The Corps also acknowledges that SMCRA “does not remove the need ... for independent authorization under Section 404 of the Clean Water Act. Consequently, this NWP does not duplicate the SMCRA permit process.” 2007 Decision Document 8, 11-2 ("The Corps does not assume that other state or Federal agencies conduct a review that is comparable to the section 404(b)(1) Guidelines.”).
.
See
2007 Decision Document 22 (finding that the adverse effects of NWP 21 activities on conservation will be minor; finding that NWP 21 activities would alter aesthetics of waters and surrounding lands; finding that NWP 21 activities will have minor adverse effects on the general environment and that compensatory mitigation will ensure minimal environmental impacts; finding that NWP 21 activities may destroy wetlands and that compensatory mitigation may be necessary to en
. "A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow.”