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Ohio Valley Environmental Coalition v. United States Army Corps of Engineers

ELR Citation: 43 ELR 20075
Nos. 3:08-0979, (S.D. W. Va., 03/28/2013) (Chambers, J.)

A district court held that the U.S. Army Corps of Engineers violated the CWA and NEPA when it issued a §404 permit allowing a mining company to permanently fill 11,194 linear feet of streams in Boone County, West Virginia. The court previously issued a remand order requiring the Corps to: (1) re-issue an amended notice for each permit; (2) receive and respond to comments on the revised notices; and (3) reconsider each permit with any new comments in mind. But the Corps failed to reevaluate mitigation for the completed and substantially completed mining activities in violation of the CWA, NEPA, and the remand order. The Corps stated it did not see any indication that the mitigation plan already in place would not be successful or sufficient, and it was adamant that although it did not modify its mitigation plan, this does not mean that it did not reconsider the plan. But the Corps gave no explanation as to why the existing mitigation plan, particularly stream creation, would be successful for the site as a whole. Furthermore, the Corps failed to properly respond to environmental groups' comments concerning the mitigation, specifically those about stream creation, and the Corps failed to justify stream creation as a method of mitigation. In so doing, the Corps acted arbitrarily and capriciously. On remand yet again, the Corps must reevaluate mitigation and properly respond to the group's comments, especially those regarding stream creation.