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Kentucky Riverkeeper, Inc. v. Rowlette

ELR Citation: 43 ELR 20095
Nos. 11-6083, (6th Cir., 04/22/2013)

The Sixth Circuit struck down the U.S. Army Corps of Engineers' reissuance of nationwide permit 21, which authorizes surface coal mining operations to discharge dredged and fill material into waters of the United States. An environmental group challenged the permit, alleging that the cumulative-impacts analyses prepared for the EA pursuant to NEPA violated the CWA, NEPA, and the APA. The court agreed. The EA omitted the present effects of past actions from its cumulative-impact analysis, and its conclusory final-decision statements do not cure this defect. Though the courts are to conduct "limited" NEPA review, the courts must set aside the Corps' action when it eschews its NEPA obligation to adequately consider and disclose the environmental impact of its actions. Because the EA failed to comply with the NEPA regulations’ requirements, the Corps' reauthorization of permit 21 was arbitrary and capricious. In addition, the Corps failed to properly explain how compensatory mitigation would ensure cumulatively minimal impacts. The Corps may rely on post-issuance mitigation procedures to minimize environmental impacts, but in making a minimal-cumulative-impact finding, it must, at a minimum, provide some documented information supporting that finding. The court, therefore, invalidated permit 21 as arbitrary and capricious. But it stayed the ruling for 60 days to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies. In addition, the court did not consider challenges to nationwide permit 50, concerning underground coal-mining operations, because projects authorized under that permit were extended only until March 18, 2013.