MEMORANDUM OPINION AND ORDER
JOSEPH R. GOODWIN, Chief Judge.
This case 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 undergirds 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, as 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
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
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 Corps, the defendant in this suit,
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 resource
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 federal 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, 479 F.Supp.2d at 625. Towards those ends, NEPA requires federal agencies to prepare environmental impact statements ("EIS") for actions that will have a significant impact on the environment. 42 U.S.C. § 4332(2)(C).
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, 359 F.3d 1257, 1274 (10th Cir.2004) (quoting Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002)). A FONSI must be supported by a statement of reasoning and
B. Nationwide Permit 21
NWP 21, the nationwide permit at issue in this case, permits:
(Corps' Mem. Opp'n OVEC's Mot. Summ. J. Supplemental Compl., Ex. 1, Decision Document: Nationwide Permit 21 at 1.)
C. Procedural History
The plaintiffs, a collection of environmental groups (hereinafter collectively referred to as "OVEC"),
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, 410 F.Supp.2d at 453. Accordingly, I further found that NWP 21's structure, which provides for authorizations based on a case-by-case, post hoc determination of minimal impacts for each proposed project, permitted an authorization procedure rather than a category of activities. I thus held that the Corps failed to permit a category of activities and make a pre-issuance minimal impacts determination as required by CWA. OVEC I, 410 F.Supp.2d at 467.
The Fourth Circuit Court of Appeals reversed and remanded, finding that the
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, I granted OVEC's motion to file a Supplemental Complaint
The Corps and the Intervenors
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, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Consequently, "an actual controversy must exist at all stages of federal court proceedings." Erwin Chemerinsky, Federal Jurisdiction § 2.5.1 (1994). The Supreme Court has described the mootness doctrine as "standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue through its existence (mootness)." U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). "A case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23
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 moot 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.
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"), 269 F.Supp.2d 710, 713 (S.D.W.Va.2003) (citing Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); S. Pac. Terminal Co. v. I.C.C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911)). This exception applies if: "(1) the challenged action is too short in duration to be fully litigated before the case will become moot; and (2) there also is a reasonable expectation that the complaining party will be subjected to the same action again." Id. (citing Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). There is no "mechanical" or "fixed" test to determine whether an activity is of such short duration that it will evade judicial review. Nat'l Wildlife Fed. v. Costle, 629 F.2d 118, 123 n. 19 (D.C.Cir.1980).
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 twelve-month extension of the permit. See Rivenburgh, 269 F.Supp.2d at 715. Though other courts have found that the lifetime of a nationwide permit is sufficient for judicial review, see Rivenburgh II, 269 F.Supp.2d at 715; see also Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 264 Fed.Appx. 10, 12 (D.C.Cir. 2008), the fact that this litigation has continued for almost six years suggests that the duration of the challenged activities is too short to be fully litigated before the case becomes moot.
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
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
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
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, 410 F.Supp.2d at 461. In fact, I observed first hand the swiftness with
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).
The Supreme Court in Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), set out a three-factor test for analyzing ripeness in the context of agency action. Pursuant to that test, a court must consider "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development." Ohio Forestry, 523 U.S. at 733, 118 S.Ct. 1665.
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.
As to the third factor, no further development of the issues presented is required because "[w]hile 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 courts are well-equipped to consider." OVEC I, 410 F.Supp.2d at 462. Similarly, whether it complies with NEPA and the APA are pure questions of law. Accordingly, 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.
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 authorizations
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, 417 F.3d 1272, 1278 (D.C.Cir.2005); Ohio Valley Envtl. Coal. et al. v. Aracoma Coal Co. et al. ("Aracoma Coal"), 556 F.3d 177, 192 (4th Cir.2009) ("Claims challenging federal agency action under CWA and NEPA are subject to judicial review under the APA."). A court conducting judicial review under the APA does not resolve factual questions, but instead determines "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C.2006) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985)). Therefore, "in a case involving review of a final agency action under the [APA] ... the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record." Id. at 89. In this context, summary judgment becomes the "mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id. at 90.
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, 556 F.3d at 192. The court must ensure that an agency has "examine[d] the relevant data (impacts) and articulate[d] a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington
"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, 463 U.S. at 43, 103 S.Ct. 2856. "Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid." Aracoma Coal, 556 F.3d at 192. Heightened deference is owed to an agency when the matter being reviewed involves "not just simple findings of fact but complex predictions based on expertise." Id. Accordingly, "a reviewing court may not set aside administrative decisions `simply because the court is unhappy with the result reached.'" Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1284 (1st Cir.1996) (quoting Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). The court's review must not, however, be reduced to a "`rubber stamp' of agency action." Aracoma Coal, 556 F.3d at 192. The court must conduct "a `searching and careful' inquiry of the record." Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).)
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, 479 F.Supp.2d at 622. The 2007 Decision Document, prepared and issued by the Corps, summarizes the Corps' review and analysis of the direct, indirect, and cumulative impacts associated with the activities authorized under NWP 21 (2007) and describes the analysis undertaken by the Corps in order to address the requirements of NEPA, CWA, and the § 404(b)(1) Guidelines. The 2007 Decision Document identifies the factors considered by the Corps in making the minimal impact determination, any alternatives considered, and the Corps' final decision regarding issuance of NWP 21 (2007). Based on this record, and bearing in mind the relevant standards of review, I will turn to the merits of OVEC's claims.
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 rulemaking 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."
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, 699 F.2d 1209, 1216 (D.C.Cir.1983). "An agency need not respond to every comment, but it must `respond in a reasoned manner to the comments received, to explain how the agency resolved any significant problems raised by the comments, and to show how that resolution led the agency to the ultimate rule.'" Id. A statement of a rule's basis and purpose is inadequate if it does not respond to significant public comments. St. James Hosp. v. Heckler, 760 F.2d 1460, 1470 (7th Cir.1985); see Action on Smoking & Health, 699 F.2d at 1217 ("The APA guarantees the public an opportunity to comment on proposed rules. That opportunity `is meaningless unless the agency responds to significant points raised by the public.'") (quoting Ala. Power Co. v. Costle, 636 F.2d 323, 384 (D.C.Cir.1979)).
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, 567 F.2d 9, 35 (D.C.Cir.1977). Therefore, the statement must allow a court "to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did." Id. (quoting Auto. Parts & Accessories Ass'n v. Boyd, 407 F.2d 330, 338 (D.C.Cir.1968)); see also Gray Panthers Advocacy Comm. v. Sullivan, 936 F.2d 1284, 1288 (D.C.Cir.1991) (explaining that an agency's concise general statement must offer an explanation for the basis of its rule sufficient for a court to "consider whether the decision was based on a consideration of relevant factors." (internal quotations omitted)).
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:
2007 Decision Document 10. The Corps also acknowledged the commenters' criticism that compensatory mitigation is not reliable and responded:
72 Fed. Reg. 11100. Id. The Corps also indicated that it would strengthen its compensatory mitigation requirements by
2007 Decision Document 9.
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.
The Fourth Circuit Court of Appeals addressed this question in Aracoma Coal, 556 F.3d 177. In that case, the Corps had issued individual permits pursuant to § 404(a) of CWA authorizing valley fills in connection with mountain top mining activities. The plaintiffs challenged those permits, arguing that the scope of the Corps' NEPA analysis was too narrow. The Corps had limited the scope of its NEPA analysis to the "affected waters and adjacent riparian areas," and the plaintiffs argued that the Corps "should have considered all environmental impacts caused by the fills, including the impacts to the upland valleys where the fills will be located." Id. at 193.
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 Aracoma Coal. In light of the Court of Appeals's holding, I
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[s] 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." 72 Fed. Reg. at 11095. OVEC challenges this determination on two grounds. First, OVEC argues that the Corps' cumulative impacts analysis did not involve the consideration of past actions and therefore could not support the Corps' insignificance determination. (Id. at 27.) Second, OVEC argues that the Corps' cumulative impacts analysis was inadequate because it relied on the efficacy of mitigation without explaining how that mitigation would in fact effectively minimize cumulative environmental impacts. (Id.)
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., 538 F.3d 1172, 1215 (9th Cir. 2008). "Cumulative impact" is defined as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. § 1508.7. "An EA may be deficient if it fails to include a
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 "[a]pproximately 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.)
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, 429 F.3d at 502, 505. The Court of Appeals did not, however, evaluate the reasonableness of the Corps' partial reliance on post-issuance procedures in the course of reaching its findings. See id. at 502 n. 6. In fact, the Court of Appeals explicitly left open the possibility that the Corps' minimal impacts determination was arbitrary and capricious because it "relied on erroneous premises or ignored relevant data."
1. The Corps Failed To Consider The Effects of Past Actions As Required By NEPA
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," 72 Fed. Reg. at 11095, the Corps replied:
72 Fed. Reg. at 11096. The Corps further explained this decision in its briefing in this case: "The Corps concluded that the past activities authorized by NWP 21 are not ongoing, they have no continuing relationship to activities that may be authorized under the [NWP 21 (2007) ], and are thus not properly considered in the cumulative effects analysis." (Corps' Mem. Opp'n OVEC's Mot. Summ. J. Supplemental Compl. 22.) The Corps further asserts that because it requires "compensatory mitigation to offset permanent impacts to the aquatic environment .... the net impact of past activities has no additive effect to the potential future activities." Id. at 22 n. 6.
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
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.
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,
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, 477 F.3d 225, 231 (5th Cir.2007) ("We have consistently accepted the proposition that reliance on mitigation measures may reduce a project's impacts below the level of significance."); Sierra Club v. U.S. Army Corps of Eng'rs ("Sierra Club Florida"), 464 F.Supp.2d 1171, 1224 (M.D.Fla.2006), aff'd, 508 F.3d 1332 (11th Cir.2007); see also Aracoma Coal, 556 F.3d at 192 ("[A]n agency may avoid issuing an EIS where it finds that mitigating measures can be taken to reduce the environmental impact of the project below the level of significance."). An agency's reliance on mitigation in making a FONSI, however, must be justified. See Sierra Club Florida, 464 F.Supp.2d at 1224; see also Hill v. Boy, 144 F.3d 1446, 1451 (11th Cir.1998) (explaining that where an agency relies on an assumption to reach a FONSI, the assumption must be supported by substantial evidence). Such reliance is justified if the proposed mitigation satisfies two factors. First, the proposed mitigation underlying the FONSI "must be more than a possibility" in that it is "imposed by statute or regulation or have been so integrated into the initial proposal that it is impossible to define the proposal without mitigation." Sierra Club, 464 F.Supp.2d at 1225 (quoting Wyo. Outdoor, 351 F.Supp.2d at 1250); see also Council on Envtl. Quality, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, 18038 (March 17, 1981) ("In some instances, where the proposal itself so integrates mitigation from the beginning that it is impossible to define the proposal without including the mitigation, the agency may then rely on the mitigation measures in determining that the overall effects would not be significant...."). Second, there must be some assurance that the mitigation measures "constitute an adequate buffer against the negative impacts that result from the authorized activity to render such impacts so minor as to not warrant an EIS." Wetlands Action Network v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1121 (9th Cir. 2000) (citing Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992)). In other words, there must be some assurance that the proposed mitigation measures will be successful. Proposed mitigation measures are sufficient if they are supported by sufficient evidence, such as studies conducted by the agency, or are "adequately policed." Id. (quoting Wyo. Outdoor, 351 F.Supp.2d at 1250.)
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.
2007 Decision Document 10; see also id. at 21; 72 Fed. Reg. at 11116. The case-by-case review occurs pursuant to NWP 21's PCN requirement.
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, 464 F.Supp.2d at 1225 (quoting Wyo. Outdoor Council, 351 F.Supp.2d at 1250). NWP 21 (2007) requires each permittee to file a PCN and General Condition 27 requires the Corps to consider "the need for mitigation to reduce the project's adverse environmental effects to a minimal level." 72 Fed. Reg. at 11184, 11195. The district engineer must determine whether the activity will result in more than minimal individual or cumulative adverse environmental impacts, and then must do one of three things: (1) refuse to authorize the activity under NWP 21 (2007), (2) subject the activity to a mitigation plan that would reduce its environmental impacts to the required level, or (3) modify the activity. Id. General Condition 20 sets out factors that the district engineer must consider "when determining appropriate and practicable mitigation necessary to ensure that adverse effects on the aquatic environment are minimal." 72 Fed. Reg. at 11193. Therefore, the case-by-case evaluation that the Corps relies upon to mitigate the cumulative impacts to insignificance, as well as the factors to be considered in that process, are mandatory conditions that are integrated into the proposed permit that the Corps was entitled to rely upon in making its FONSI. Sierra Club v. U.S. Army Corps of Eng'rs et al., 464 F.Supp.2d at 1171, 1225 (M.D.Fla.2006) ("[T]he mitigation measures are a mandatory condition of the permit and therefore qualify as the type of mitigation measures that can be relied upon for a finding of no significant impact." (internal quotations omitted)).
The second criterion is whether there is sufficient assurance that the measures relied upon will lead to actual mitigation. Wyo. Outdoor Council, 351 F.Supp.2d at 1250. One way to provide such assurance is to present studies showing that the proposed mitigation would likely succeed. Wyo. Outdoor Council, 351 F.Supp.2d at 1250. The Corps provided no such studies.
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, 351 F.Supp.2d at 1250. Mitigation measures are adequately policed when they "include a program to monitor and ensure its effectiveness." Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7, 18 (2d Cir.1997); see also Abenaki Nation of Mississquoi v. Hughes, 805 F.Supp. 234, 245 (D.Vt.1992) (assessing the adequacy of an "intensely detailed" mitigation plan including special conditions imposing specific mitigation steps for certain environmental impacts and a monitoring program). The Corps represented to commenters that monitoring would be part of the compensatory mitigation plans ensuring only minimal adverse impacts of authorized activities. See 2007 Decision Document 9. Neither NWP 21 (2007) nor its general conditions, however, include a requirement or protocol for monitoring mitigation sites. Moreover, monitoring plans are not part of the PCN required by General Condition 27 for NWP 21 permittees. See 72 Fed. Reg. at 11170 (responding to comment requesting that "detailed compensatory mitigation monitoring plans be required for activities authorized by certain nationwide permits, including NWP 21," by explaining that "[c]onceptual mitigation plans are appropriate for submittal with [PCNs]"). Because NWP 21 does not include a monitoring plan nor require the development of a monitoring plan, I cannot find that the Corps has shown that its NWP 21 (2007) mitigation measures will be adequately policed.
72 F.R.D. at 11164.
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 "[c]ompensatory 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, "[c]ompensatory 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."
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, 222 F.3d at 1121 (9th Cir.2000) (finding that mitigation measures were sufficient to support a FONSI, even though they were not fully developed, because detailed special conditions in the permit required the development of mitigation plans "according to the guidelines set forth in the special conditions."). That condition does require the district engineer, when reviewing a proposed project that would have more than minimal impacts, "to include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level." 72 Fed. Reg. at 11196. Such loose instructions, however, do not evidence the guarantee of successful mitigation necessary to comply with the permit requirements.
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." 359 F.3d at 1274-76. Though the Corps was unable to predict the specific impacts on the eagles, the court found that Corps could justifiably rely on the comprehensive mitigation plan tailored to the identified potential impact as an "adequate buffer." Id. at 1277. Accordingly, the court found that the Corps had considered the relevant factors and that the FONSI was not arbitrary or capricious. Id. Similarly in Wyoming Outdoor Council, the court found that the Corps reasonably relied on a mitigation plan to minimize the impact of a general permit on endangered species because the Corps had detailed the potential impacts to fish and wildlife, and the mitigation plan, which provided for the individual review of proposed projects, included special notification conditions for specified geographic areas. 351 F.Supp.2d at 1247-48. Finally, in Sierra Club Florida, the district court found that the Corps reasonably relied on its mitigation plan because it was scientifically supported and was "sufficiently enforceable through permit's special conditions." 464 F.Supp.2d at 1225. In affirming the district court's conclusion, the Eleventh Circuit reiterated that "[t]he special conditions in the Permit are extensive,
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.
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, 351 F.Supp.2d at 1243. Although a case-by-case or regional cumulative effects determination allows the Corps to identify the cumulative impacts of the individual activity or cluster of activities permitted in a region, it does not provide any information about the cumulative impacts of the nationwide permit. NWP 21 (2007) may have cumulative consequences by virtue of its being authorized on a nationwide scale. If the Corps believes the permit will not have nationwide cumulative impacts, then it must say so and explain its reasoning. It may not simply decide to conduct the analysis on a smaller scale than its proposed activity. Accordingly, the Corps' conclusory reliance on regional and watershed cumulative impacts analyses in making its FONSI was unjustified.
c. The Corps' FONSI Was Arbitrary And Capricious
For the reasons discussed above, I
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).
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.
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. 429 F.3d at 499.
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, 429 F.3d at 501. Accordingly, the court held that the Corps' determination need only be a "reasoned prediction" or "forecast" of the permit's environmental impacts. Id.
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:
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":
Id. at 10; see also 72 Fed. Reg. at 11116.
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:
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 of 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, 351 F.Supp.2d at 1249 (explaining that the Corps' finding that a loss of seven acres per year of wetlands was not in and of itself arbitrary and capricious but that "[i]f ... the Corps' reliance on mitigation measures was not justified, the Court can only assume that the impacts ... without the mitigation measures would result in significant impacts, and the issuance of a FONSI was inappropriate."). For the reasons discussed above in my NEPA analysis, I
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.
The Corps responds that the "[d]ifferences 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.
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
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
OVEC II, 429 F.3d at 501.
Id. at 502 (emphasis in original).
33 C.F.R. § 330.6(b).
The Intervenors' reliance upon this discussion is misplaced. First, in OVEC I, I held, after considering the factors developed in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) and Ohio Forestry, that the plaintiffs' facial challenge was ripe for adjudication. I made this holding independent of my Wilderness Society analysis. Second, Wilderness Society, and for that matter Ohio Forestry, do not stand for the proposition that facial challenges to NWPs are not justiciable if no site-specific authorizations exist. Rather, the challenged activity must either "bestow or diminish legal rights" or "plaintiffs must allege either (1) imminent concrete injuries that would be caused by the forest plan, such as `allowing motorcycles into a bird-watching area' or `closing a specific area to off-road vehicles,' or (2) a sitespecific injury causally related to an alleged defect in the forest plan." Wilderness Society, 188 F.3d 1130, 1133-34 (9th Cir.1999) (internal citations removed).
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. Id. at 208. The Corps' analysis in that case, however, was sufficient. It had included both reliance and reference to other agencies' environmental review processes and had also directly addressed the anticipated cumulative impacts at the project sites. Id. at 208-09. The Court of Appeals concluded that the cumulative impacts analysis was not arbitrary and capricious because "the Corps had analyzed the cumulative impacts in each of the challenged permits and ha[d] articulated a satisfactory explanation for its conclusion...." Id. at 209. In the instant matter, the Corps has neither analyzed the cumulative impacts nor "articulated a satisfactory explanation." Instead, the Corps has conducted a mere "mitigated to insignificance" analysis that is insufficient under NEPA.
2007 Decision Document 9; 72 Fed. Reg. at 11115. Because this monitoring condition is not represented in the language of NWP 21 (2007) or the general conditions, I assume that the Corps is relying solely on its regulatory requirements in making this statement. See 40 C.F.R. § 230.96(a). The Corps has not, however, expressed any reliance on its regulatory requirements in the course of its cumulative impacts analysis nor explained how its regulatory requirements would mitigate NWP 21 (2007)'s cumulative impacts. Unlike conditions and obligations tied to the permit, the existence of regulatory requirements applicable to all permits do not show that the Corps took a "hard look" at the permit's environmental impacts absent additional explanation. Absent such an explanation, I cannot supply a basis for the Corps' decision that the Corps itself has not given. Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856 (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)).
2007 Decision Document at 20; see also OVEC II, 429 F.3d at 501 (explaining the difficulty of accurately predicting impacts when the Corps issues a nationwide permit like NWP 21 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 circumstance.").
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 decisively on the issue. See, e.g., Sierra Club Florida, 464 F.Supp.2d at 1198 n. 39 ("In light of the Corps' explanation and its history of addressing only direct effects to wetlands and water bodies and indirect effects to other environmental features in this context, the Corps' interpretation is persuasive."); Wyo. Outdoor Council, 351 F.Supp.2d at 1255 n. 11 ("This Court could find no case that addressed this discrepancy or how the standard should be applied. Nor will the Court address it here...."). While the court acknowledges the seeming discrepancy between the language of CWA and that of the § 404(b)(1) Guidelines, the court does not find it necessary to address this issue.