## Facts

- Environmental organizations challenged the U.S. Army Corps of Engineers’ 2007 reissuance of Nationwide Permit 21 (NWP 21), a general permit authorizing discharges of fill material associated with surface coal mining valley fills in waters of the United States.
- Valley fills from mountaintop removal mining bury headwater streams and substantially alter aquatic systems in Appalachia.
- In reissuing NWP 21, the Corps concluded covered activities would cause no more than minimal individual and cumulative adverse environmental effects under Clean Water Act (CWA) § 404.
- The Corps declined to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) and instead issued a Finding of No Significant Impact (FONSI).
- The Corps’ minimal-effects and no-significant-impact determinations relied heavily on compensatory mitigation to be developed and imposed later through project-by-project district engineer verification, rather than on specified mitigation commitments evaluated at the programmatic stage.
- Plaintiffs brought a facial, programmatic challenge under NEPA, the CWA, and the Administrative Procedure Act (APA); both sides moved for summary judgment.

## Issues

1. Whether the Corps’ determination that activities authorized by NWP 21 would have only minimal cumulative adverse environmental effects was arbitrary and capricious under the CWA and APA.
2. Whether the Corps violated NEPA by issuing a FONSI and not preparing an EIS where the no-significant-impact conclusion depended on mitigation not specified or analyzed in detail when NWP 21 was issued.
3. Whether deferring mitigation design and impact controls to later, site-specific verification can satisfy programmatic NEPA “hard look” and CWA minimal-effects requirements for a nationwide permit.

## Decision

- Plaintiffs’ motion for summary judgment was granted; the Corps’ cross-motion was denied.
- The court set aside (invalidated) the 2007 issuance of NWP 21.
- The court held the Corps’ minimal cumulative effects determinations under the CWA and NEPA were arbitrary and capricious because they rested on an inadequately defined mitigation strategy.
- The court found the Corps failed to take the required NEPA “hard look” at significant environmental consequences of authorizing valley fills through a nationwide permit.
- The result required regulated mining activities to pursue individual § 404 permits subject to more rigorous, project-specific environmental review rather than rely on NWP 21.

## Legal Principles

- Under the APA, agency action must be set aside if arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
- The Corps may issue a nationwide permit under CWA § 404 only if authorized activities will cause no more than minimal adverse effects individually and only minimal cumulative adverse effects.
- NEPA permits a FONSI based on mitigation only where mitigation is sufficiently defined, analyzed, and enforceable to support a reasoned conclusion that impacts will not be significant.
- Programmatic authorization cannot be justified by postponing core impact and mitigation determinations to later, case-by-case decisions without concrete standards and record support.
- Cumulative impacts analysis must be supported by the record, particularly where the activity occurs in a context of documented, widespread environmental harm.

## Conclusion

The court vacated the Corps’ 2007 reissuance of NWP 21 because its CWA minimal-effects finding and NEPA FONSI depended on vague, future, project-by-project mitigation and lacked adequate cumulative impacts analysis, rendering the agency action arbitrary and capricious.


Ohio Valley Env't Coal. v. Hurst, 604 F. Supp. 2d 860 (S.D.W. Va. 2009)