Jump to Navigation
Jump to Content

Kentucky Riverkeeper, Inc. v. Midkiff

ELR Citation: 41 ELR 20240
Nos. 05-181, (E.D. Ky., 07/14/2011)

A district court dismissed environmental groups' suit for declaratory and injunctive relief challenging the U.S. Army Corps of Engineers' nationwide permitting program, and, specifically, its use throughout the Appalachian region to issue permits for mining activities. The groups alleged CWA, NEPA, and APA violations and sought to enjoin the Corps from authorizing further discharges of dredged or fill material under nationwide permits (NWP) 21, 49, and 50. The groups failed to identify any site-specific activities authorized under NWP 49 that are diminishing or threatening to diminish their members' enjoyment of particular river segments. Accordingly, they lacked standing to challenge NWP 49. As for the merits, the Corps' decision to issue NWPs 21 and 50 was neither arbitrary nor capricious in violation of NEPA. The Corps considered the foreseeable environmental effects that could result from mining activities, and it explained that the NWPs' General Conditions, including compensatory mitigation, would ensure that cumulative effects would be minimal. Moreover, the Corps' conclusion that the activities authorized under the 2002 NWP 21 would not have any continuing adverse effects on the environment because the required compensatory mitigation would offset these effects was not irrational. And the Corps' cumulative impacts analysis was not arbitrary and capricious as it involved a thorough review of the environmental effects resulting from the issuance of NWPs 21 and 50. Likewise, the Corps' cumulative impact analysis complied with the CWA.