Ohio Valley Environmental Coalition v. Aracoma Coal Co.
Full Opinion (html_with_citations)
Reversed, vacated and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a separate opinion dissenting in part and concurring in part.
OPINION
This appeal concerns a challenge by Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as âOVECâ) to the U.S. Army Corps of Engineers (âCorpsâ) issuance of
Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were âwaters of the United Statesâ and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments.
The Corps now appeals these two orders. For the reasons set forth below, we reverse and vacate the district courtâs opinion and order of March 23, 2007, and vacate the district courtâs injunction. We also reverse the district courtâs June 13, 2007, grant of declaratory relief and we remand for further proceedings consistent with this opinion.
I.
The mountaintop removal method of surface coal mining, pioneered in West Virginia, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as âspoil.â Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock and soil and incorporation of air causes significant swelling. As a result, large quantities of the blasted material cannot be replaced, and this excess spoil (âoverburdenâ) remains in the valley, creating a âvalley fillâ that buries intermittent and perennial streams in the process.
Water that collects in the fill must be moved out to ensure the fillâs continued stability. Thus, an underdrain system is constructed by placing large boulders up to and above the ordinary high-water mark of the stream. The collected water is then channeled into a treatment pond, where sediment from the runoff is allowed to settle. Sediment ponds usually are constructed in existing streambeds, using earth and rock to create an embankment. After sediments have settled out of the fill runoff, the treated water is discharged from the sediment pond back into existing streams. When practicable, a sediment pond will be constructed in the streambed immediately adjacent to the end (or âtoeâ) of the fill. But, because West Virginiaâs steep, mountainous topography often prevents this kind of positioning, a short stream segment is frequently used to move runoff from the fill downstream to the sediment pond. Once a valley fill is stabilized, the embankments of the sediment pond are removed, and the ponds and the stream segments are restored to their pre-project condition.
Much of the impact of a valley fill project is felt by headwater streams. Head-water streams are small streams that form the origin of larger streams or rivers, and may be intermittent or ephemeral. Intermittent streams receive their flow from both surface runoff and groundwater discharge, while ephemeral streams rely on
OVEC initiated this challenge in September 2005 in the United States District Court for the Southern District of West Virginia, shortly after the Corps issued an individual valley fill permit and accompanying Combined Decision Document (âCDDâ) to the Araeoma Coal Company for the Camp Branch Surface Mine project (âCamp Branchâ) under its CWA § 404 authority.
In addition to the Camp Branch permit, OVECâs Third Supplemental Complaint raised challenges to the individual § 404 permits issued to the Elk Run Coal Company for the Black Castle Mine (âBlack Castleâ), and to Alex Energy, Inc., for the Republic No. 1 and Republic No. 2 Surface Mines (âRepublic No. 1â and âRepublic No. 2â). The Republic No. 1 challenge was ultimately dismissed on ripeness grounds, but a challenge raised in a separate complaint to the individual permit issued to Independence Coal Company for the Laxare East Surface Mine (âLaxare Eastâ) was consolidated with this proceeding. Each of the affected companies intervened as defendants in the action, as did the West Virginia Coal Association.
All together, the four challenged permits authorize the creation of 23 valley fills and 23 sediment ponds, and they impact 68,841 linear feet of intermittent and ephemeral streams, or just over 13 miles.
OVECâs Third Supplemental Complaint charged that the Corpsâ issuance of the § 404 fill permits for these mining projects violated both substantive and procedural provisions of the CWA and NEPA, and were âarbitrary, capricious, and an abuse of discretionâ under the APA. According to OVEC, the Corps was required under
Trial in the case was originally scheduled for June 20, 2006, but on June 16, on the Corpsâ motion, the district court remanded the permits to the Corps and stayed the proceedings. Almost a month later, the Corps reissued the permits, but this time with a supplemented administrative record that incorporated new comments from the public and the parties, including the reports prepared by OVECâs proposed expert witnesses. The district court lifted its stay on July 26, and a six-day bench trial was held in October 2006.
The district court granted judgment in favor of the plaintiffs on March 23, 2007, rescinding the permits, enjoining the Corps and Intervenors from taking any action under those permits, and remanding the permits to the Corps for further proceedings consistent with the courtâs order.
The district court found, inter alia, that the probable impacts of the valley fills would be significant and adverse under both the CWA and NEPA; that the mitigation plans for each permit were not sufficient to compensate for those adverse impacts; that, in each permit, the Corps improperly limited its scope of review under NEPA to look only at the impact on jurisdictional waters rather than the broader impact of the entire valley fill project; and, finally, that the Corps inadequately evaluated the cumulative impacts of the projects.
On June 13, 2007, the district court granted summary judgment to OVEC on a separate claim under which the plaintiffs sought a declaratory judgment that the stream segments running from the valley fill toes to the sediment pond embankments are âwaters of the United States,â and that the Corps thus did not have authority to permit the discharge of pollutants into these segments with a CWA § 404 permit. According to the district court, mining operators who wished to discharge runoff from the fill into a stream segment needed to obtain a CWA § 402 permit from the EPA or proper state authority. On September 13, 2007, the district court granted, pursuant to Federal Rule of Civil Procedure 54(b), the Interve-norsâ motion for entry of final judgment on the June 13 order.
On appeal, the Corps contends that it is entitled to deference on its determination about the scope of its NEPA analysis and that its findings on individual and cumulative impacts and mitigation were not arbitrary or capricious. The agency further argues that its interpretation of its CWA regulations â treating stream segments and sediment ponds as part of a unitary waste treatment system and thus excepting them from separate CWA § 402 per
II.
We review de novo a district courtâs findings on an administrative record. See Crutchfield v. County of Hanover, 325 F.3d 211, 217 (4th Cir.2003). This de novo standard applies to questions of both law and fact. See id.
Both NEPA and CWA claims are subject to judicial review under the APA, 5 U.S.C. § 706 (2006). For all agency actions, a reviewing court must set aside the action if it is found to be âarbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.â 5 U.S.C. § 706(2)(A) (2006); Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
III.
A complex statutory framework under-girds the regulation of valley fills and associated sediment ponds, and it is this framework that provides the foundation for our opinion. Thus, we begin with a brief overview of the relationship of the four statutes that affect the scope of the Corpsâ authority to issue fill permits in connection with mountaintop coal mining operations: the Surface Mining Control and Reclamation Act of 1977 (âSMCRAâ), 30 U.S.C. § 1201 et seq. (2000), the CWA, NEPA, and the APA.
A.
Congress passed SMCRA in 1977 to âestablish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.â 30 U.S.C. § 1202(a) (2000). Congress also recognized a need, however, to âstrike a balance between protection of the environment and agricultural productivity and the Nationâs need for coal as an essential source of energy.â 30 U.S.C. § 1202(f) (2000). In striking this balance, SMCRA utilizes a âcooperative federalismâ approach, allocating responsibility for the regulation of surface coal mining among both state and federal agencies. Bragg v. W. Va. Coal Assân, 248 F.3d 275, 288 (4th Cir.2001).
Under SMCRA, states have âexclusive jurisdiction over the regulation of surface coal mining and reclamation operationsâ on non-Federal lands, so long as their regulatory program has been approved by the Secretary of the Interior as satisfying the Actâs minimum requirements.
Regulation of the disposal of excess spoil material from surface coal mining opera
B.
An SMCRA permit by itself, however, does not suffice to allow a mine operator to construct a valley fill in conjunction with its mountaintop removal activities. Mining companies must also obtain permits certifying their projectâs compliance with the CWA. The CWA aims to ârestore and maintain the chemical, physical, and biological integrity of the Nationâs watersâ by eliminating âthe discharge of pollutants into the navigable waters.â 33 U.S.C. § 1251(a)(2000). In the surface mining context, three sections of the CWA are relevant to the permitting process.
First, a mine operator applying for a federal permit under the CWA must comply with CWA § 401, 33 U.S.C. § 1341 (2000), by providing the federal permitting agency with a certification from the proper state authority â in this case, WVDEPâ stating that any discharge from the mine site will comply with all applicable water quality standards. Next, the mine operator must obtain a National Pollutant Discharge Elimination System (âNPDESâ) permit pursuant to CWA § 402, 33 U.S.C. § 1342 (2000), if their project involves the discharge of a pollutant from a point source within the mining operation into navigable waters.
States wishing to administer their own NPDES program must be approved by the Environmental Protection Agency (âEPAâ) before they can begin issuing § 402 permits. 33 U.S.C. § 1342(c) (2000). West Virginia has had an EPA-approved § 402 program since 1982. See Approval of West Virginiaâs NPDES Program, 47 Fed. Reg. 22, 363 (May 24,1982).
Finally, and most importantly for the purposes of this litigation, surface mining projects that intend to dispose of excess spoil from their mining operations in jurisdictional waters must obtain a CWA § 404, 33 U.S.C. § 1344 (2000), permit from the Corps. Section 404 permits allow âthe discharge of dredged or fill material into the navigable waters at specified disposal sites.â 33 U.S.C.A. § 1344(a) (2008). The Corps uses § 404 permits to authorize the
In issuing § 404 permits, the Corps follows the § 404(b)(1) Guidelines (âCWA Guidelinesâ) promulgated by the Environmental Protection Agency (âEPAâ) pursuant to 33 U.S.C. § 1344(b)(1) (2008), and incorporated by the Corps into its own regulations. See 40 C.F.R. pt. 230 (2008); 33 C.F.R. § 320.2(f) (2008). The Guidelines prohibit discharges that âwill cause or contribute to significant degradation of the waters of the United States.â
The Corpsâ § 404 permit evaluation process must also include a public interest review component, in which â[t]he benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.â 33 C.F.R. § 320.4(a)(1) (2008). The Corpsâ decision to issue a permit âshould reflect the national concern for both protection and utilization of important resources.â Id. Ultimately, the § 404 permitting process requires extensive review and coordination with numerous federal and state agencies, as well as significant consideration of the public interest.
C.
Under NEPA, federal agencies must take a âhard lookâ at the potential environmental consequences of their actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Because NEPA is a procedural and not a results-driven statute, even agency action with adverse environmental effects can be NEPA-compliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs. Id.
NEPA requires only that federal agencies prepare an Environmental Impact Statement for âmajor Federal actions significantly affecting the quality of the human environment.â 42 U.S.C. § 4332(2)(C) (2000). Significance is determined by evaluating both the context of the action and the intensity, or severity, of the impact. 40 C.F.R. § 1508.27 (2008). Where it is not readily discernible how significant the environmental effects of a proposed action will be, federal agencies may prepare an Environmental Assessment (âEAâ). 40 C.F.R. § 1501.4(b) (2008). An EA is a âconcise public document ... that serves to ... [bjriefiy provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact [(âFONSIâ)].â 40 C.F.R. § 1508.9(a)(1) (2008); see also 33 C.F.R. §§ 230.10-230.11 (2008) (explaining the Corpsâ requirements for an EA).
Even where an EA determines that a proposed action will have a significant environmental impact, an agency may
D.
Claims challenging federal agency action under the CWA and NEPA are subject to judicial review under the APA. 5 U.S.C. § 702 (2006); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir.1992). In issuing the § 404 permits challenged here, the Corps was engaged in informal (ânotice and commentâ) rule-making. 33 U.S.C. § 1344(a) (2000); Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 496 (4th Cir.2005). Such informal rulemaking, done pursuant to Section 4 of the APA, 5 U.S.C. § 553 (2006), must be reviewed under Section 10 of the APA, 5 U.S.C. § 706(2) (2006). Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.1976).
Section 10 of the APA establishes that, as a general rule, âagency action, findings, and conclusionsâ will be set aside only when they are âfound to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.â 5 U.S.C. § 706(2) (2000); Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid. Natural Res. Def. Council, Inc. v. EPA 16 F.3d 1395, 1400 (4th Cir.1993). Especially in matters involving not just simple findings of fact but complex predictions based on special expertise, âa reviewing court must generally be at its most deferential.â Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).
In determining whether agency action was arbitrary or capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made. Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. âAlthough this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.â Id. Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes âa ârational connection between the facts found and the choice made.â â Motor Vehicle Mfrs. Assân v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); accord Ohio River Valley Envtl. Coal, Inc. v. Kempthorne, 473 F.3d 94, 102-03 (4th Cir.2006).
The âarbitrary and capriciousâ standard is not meant to reduce judicial review to a ârubber-stampâ of agency action. Ethyl Corp., 541 F.2d at 34. While the standard of review is narrow, the court must nonetheless engage in a âsearching and carefulâ inquiry of the record. Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. But, this scrutiny of the record is meant primarily âto educate the courtâ so that it can âunderstand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices
IV.
With this statutory guidance in mind, we turn now to the substance of this appeal, first taking up the issues on appeal concerning the district courtâs March 23, 2007, opinion and order.
A.
The Corps and Intervenors (collectively âAppellantsâ) claim on appeal that the Corpsâ decision about the scope of its NEPA analysis for each of these permits was entitled to deference as a reasonable interpretation of its own regulations. The district court found that the Corps acted contrary to its regulations by limiting the scope of its NEPA analysis to the impact of the filling of jurisdictional waters and by not looking at the larger environmental impacts of the valley fill as a whole. Agreeing with the district court, OVEC argues that the Corpsâ NEPA analysis should have considered all environmental impacts caused by the fill, including the impacts to the upland valleys where the fills will be located. The Corps counters that it reasonably determined that, under its regulations, its jurisdictional reach was limited to the affected waters and adjacent riparian areas and that this determination is entitled to deference.
Because we are asked here to review the Corpsâ interpretation of its own regulations, our review is cabined to assessing the reasonableness of that interpretation. This kind of review is highly deferential, with the agencyâs interpretation âcontrolling unless plainly erroneous or inconsistent with the regulation.â Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotations omitted); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.2003) (noting that, when reviewing an agencyâs interpretation of its own regulation, â[t]he reviewing court does not have much leewayâ). In applying this principle, also known as âAuer deferenceâ or âSeminole Rock deference,â we must first determine whether the regulation itself is unambiguous; if so, its plain language controls. See Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); United States v. Deaton, 332 F.3d 698, 709 (4th Cir.2003). If ambiguous,
NEPA requires federal agencies to take a âhard lookâ at the environmental consequences of their actions, but the statute does not specify how an agency should determine the scope of its NEPA analysis. Wetlands Action Network v. United States Army Corps of Engârs, 222 F.3d 1105, 1115 (9th Cir.2000). The Corpsâ implementing regulations, however, specify that the proper scope of analysis for NEPA review is âto address the impacts of the specific activity requiring a DA [Department of the Army] permit and those portions of the entire project over which the [Corps] district engineer has sufficient control and responsibility to warrant Federal review.â 33 C.F.R. pt. 325, App. B, § 7(b)(1) (2008). OVECâs challenge to the scope of the Corpsâ NEPA review rests largely on its misapprehension of what constitutes the âspecific activityâ requiring a permit.
The Corpsâ regulations are unambiguous in requiring a district engineer to address the impacts of the âspecific activity requiring a DA [Department of the Army] permitâ in its NEPA analysis. Id. According to OVEC, the Corpsâ § 404 permit is a permit for the entire valley fill, down to the last shovelful of dirt at the edge of the valley. But § 404 is itself unambiguous about what the Corps is authorized to permit under the CWA: the Corps âmay issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.â 33 U.S.C. § 1344(a) (2000) (emphasis added). The specific activity that the Corps is permitting when it issues a § 404 permit is nothing more than the filling of jurisdictional waters for the purpose of creating an underdrain system for the larger valley fill. In fact, the Corps has no legal authority to prevent the placement of fill material in areas outside of the waters of the United States. All other fill activity falls under the exclusive jurisdiction of the WVDEP, as the federally approved state SMCRA regulatory authority.
Of course, even if the âspecific activityâ being permitted under CWA § 404 is the filling of valley streams, the Corps could still be required under NEPA to consider larger impacts of the broader valley fill project if the Corps is found to have âsufficient control and responsibility to warrant Federal review.â 33 C.F.R. pt. 325, App. B, § 7(b)(1) (2008). In eases where the permitted activity is only one part of a larger project, the regulations specify that the Corps has âcontrol and responsibility for portions of the project beyond the limits of Corps jurisdiction where the Federal involvement is sufficient to turn an essentially private action into a Federal action. These are eases where the environmental consequences of the larger project are essentially products of the Corps permit action.â 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008) (emphasis added).
The regulations go on to suggest several factors to be considered in making this determination, including:
(i) Whether or not the regulated activity comprises âmerely a linkâ in a corridor type project (e.g., a transportation or utility transmission project).
(ii) Whether there are aspects of the upland facility in the immediate vicinity of the regulated activity which affect the location and configuration of the regulated activity.
(iii) The extent to which the entire project will be within Corps jurisdiction.
(iv) The extent of cumulative Federal control and responsibility.
Id.
OVECâs argument that the Corps has sufficient control and responsibility over
The Corpsâ jurisdiction under CWA § 404 is limited to the narrow issue of the filling of jurisdictional waters. To say that the Corps has a level of control and responsibility over the entire valley fill project such that âthe environmental consequences of the larger project are essentially products of the Corps permit action,â 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008), is to effectively read out of the equation the elaborate, congressionally mandated schema for the permitting of surface mining operations prescribed by SMCRA.
Under SMCRA, the state of West Virginia has âexclusive jurisdiction over the regulation of surface coal mining and reclamation operations.â 30 U.S.C. § 1253 (2000). Congress clearly contemplated that the regulation of the disposal of excess spoil and the creation of valley fills fall under the SMCRA rubric. See 30 U.S.C. § 1265(b)(22)(D) (2000) (requiring that lateral drains be constructed where a spoil disposal area contains âsprings, natural water courses or wet weather seepsâ); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir.2003) (â[I]t is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States.... â).
As part of its federally approved SMCRA regulatory program, the WVDEP surface mine permitting process examines â[ejvery detail of the manner in which a coal mining operation is to be conducted .... including] the plan for disposal of excess spoil for surface ... mining opera-tions_â (Br. for the W. Va. Depât of Commerce and the W. Va. Depât of Envtl. Prot. as Amici Curiae Supporting Appellants at 13.) As the Corps explains in its permits, âthe social and environmental impacts associated with surface coal mining and reclamation operations are appropriately analyzed by WVDEP in this context before that agency decides whether to permit the mining operation under SMCRA.â Camp Branch CDD 4; Black Castle CDD 6; Laxare East CDD 7; United States Army Corps of Engineers, Combined Decision Document for the Republic No. 2
If the Corps, by issuing a § 404 permit, can turn a valley fill project âinto a Federal action,â 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008), the WVDEPâs regulation of the fill process becomes at best duplica-tive, and, at worst, meaningless. NEPA plainly is not intended to require duplication of work by state and federal agencies. See 40 C.F.R. § 1506.2(b) (âAgencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements....â). The Corpsâ general regulatory approach echoes this sentiment. See 33 C.F.R. § 320.1(a)(5) (2008) (âThe Corps believes that state and federal regulatory programs should complement rather than duplicate one another.â); 33 C.F.R. § 337.1 (2008) (noting that, in issuing public notice for projects involving the discharge of fill material into jurisdictional waters, â[district engineers are encouraged to develop procedures to avoid unnecessary duplication of state agency proceduresâ).
SMCRA also calls for a coordinated and non-duplicative approach to environmental review. See 30 U.S.C. § 1253(a)(6) (2000) (requiring that a state SMCRA program establish âfor the purposes of avoiding duplication, ... a process for coordinating the review and issuance of permits for surface coal mining and reclamation operations with any other Federal or State permit process applicable to the proposed operationsâ). While SMCRAâs provisions should not be construed as âsuperseding, amending, modifying, or repealingâ the requirements of NEPA or the CWA, 30 U.S.C. § 1292(a) (2000), neither should NEPA be construed to require the Corps to essentially federalize an environmental review process that has already been delegated to federally approved state programs. See Wetlands Action Network, 222 F.3d at 1117 (noting, in support of its finding that the Corpsâ NEPA analysis for a wetlands-filling permit need not include the effects of the larger development project, that state regulations control the design of the project and that the larger project was already subject to extensive state environmental review); Sylvester v. U.S. Army Corps of Engârs, 884 F.2d 394, 401 (9th Cir.1989) (âWe, finally, draw comfort from the fact that ordinary notions of efficiency suggest a federal environmental review should not duplicate competently performed state environmental analyses.â).
In Department of Transportation v. Public Citizen, 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004), the Supreme Court rejected the idea that âan agencyâs action is considered a cause of an environmental effect [for purposes of NEPA] even when the agency has no authority to prevent the effect.â The Court instructed that proximate causation, rather than âbut forâ causation, was the relevant measure of the causal relationship between the agency action and the environmental effects. 541 U.S. at 767, 124 S.Ct. 2204. In engaging in this proximate cause analysis, â âcourts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.â â Id. (quoting Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774
But for the Corpsâ § 404 permit, a valley fill could not be built; yet it is WVDEP, and not the Corps, that has âcontrol and responsibilityâ over all aspects of the valley fill projects beyond the filling of jurisdictional waters.
Even if we credit OVECâs arguments regarding the Corpsâ control and responsibility over the greater valley fill project as a plausible construction of the Corpsâ regulation, we must still deem the regulation âambiguous,â and the Corpsâ interpretation would be entitled to deference as long as it is not âplainly erroneous or inconsistent with the regulation.â Auer, 519 U.S. at 461, 117 S.Ct. 905 (internal quotations omitted); see also Seminole Rock, 325 U.S. at 413-14, 65 S.Ct. 1215; Kentuckians for the Commonwealth, 317 F.3d at 439. In the case of each of the challenged permits, the Corpsâ engineers reasonably determined that a scope of NEPA analysis extending beyond the Corpsâ limited jurisdiction to include environmental effects on upland areas would encroach on the regulatory authority of WVDEP, which administers the stateâs SMCRA program and is responsible for determining the social and environmental impacts associated with surface mining operations.
B.
The Corps next challenges the district courtâs finding that the Corps failed to adequately support its mitigated FONSIs under NEPA and its findings of no significant degradation to waters of the United States under the CWA.
1.
The Corpsâ CWA Guidelines require the Corps to â[d]etermine the nature and degree of effect that the proposed discharge will have, both individually and cumulatively, on the structure and function of the aquatic ecosystem and organisms.â 40 C.F.R. § 230.11(e) (2008). The Guidelines do not expressly define the phrase âfunction of the aquatic ecosystem,â but they do identify a variety of factors the Corpsâ should consider, including âpotential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities.â 40 C.F.R. § 230.11(e) (2008).
In February 1990, the Corps and EPA developed a Memorandum of Agreement to make clear what kind of functional analysis the Corps was required to conduct. Memorandum of Agreement Between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines, 55 Fed.Reg. 9210 (Mar. 12, 1990) [hereinafter âMOAâ]. The MOA sets out a common approach for evaluating stream function, calling for functional values to be assessed âby applying aquatic site assessment techniques generally recognized by experts in the field and/or the best professional judgment of Federal and State agency representatives, provided such assessments fully consider ecological functions included in the Guidelines.â Id. In 2002, the Corps issued a Regulatory Guidance Letter that called upon Corps district offices âwhen possible â to âuse functional assessments by qualified professionals to determine impacts and compensatory mitigation requirements.â United States Army Corps of Engineers Regulatory Guidance Letter, No. 02-2 (Dec. 24, 2002) [hereinafter âRGL 02-02â]. RGL 02-02 provided that assessment techniques should be âgenerally accepted by experts or the best professional judgmentâ of federal and state agency representatives. Id.
The Corps currently does not have a functional assessment protocol in place for use in West Virginia, though it is in the process of developing one. As a result, the Corps relies on the best professional judgment of its staff to assess aquatic impacts and potential mitigation measures. This generally means assessing stream structure as a surrogate for function.
Appellants argue that because the CWA Guidelines provide no definition of âfunctionâ or any specific methodology for evaluating function, the Corpsâ interpretation and implementation of the regulation is entitled to deference. According to Appellants, the methodologies used by the Corps were an effective surrogate for functional assessment, and these techniques are compliant with the Guidelines, the MOA, and RGL 02-02.
The district court agreed with Appellants that a functional assessment was not required and that the Corps was entitled to deference on how to measure stream structure and function. It further found that the Corps was entitled to use its âbest professional judgmentâ in accordance with the MOA and RGL 02-02 in evaluating functional loss. Nonetheless, the court concluded that, even under a âbest professional judgmentâ standard, the Corps was obligated, and failed, to fully assess all ecological functions; to take a âhard lookâ at the evidence; and, to provide a reasoned basis for its conclusions. Based on our review of the administrative record, however, we cannot say that the Corpsâ assessments of stream functions in the challenged permits were arbitrary and capricious.
Contrary to OVECâs position that the CWA Guidelines mandate a full functional assessment, the Guidelines in fact offer no definition of the word âfunctionâ or any explanation of how âstructureâ and âfunctionâ are to be assessed. The MOA and RGL 02-02 attempt to fill this gap by encouraging use of a functional assessment but allowing Corps engineers to use their best professional judgment when such an assessment is not possible. An agencyâs interpretation of its own regulations is due significant deference, Kentuckians for the Commonwealth Inc., 317 F.3d at 439, and the MOA/RGL 02-02 approach does not appear plainly erroneous or inconsistent with the Guidelines.
In this case, the Corps, using its best professional judgment, used stream structure as a surrogate for assessing stream function.
OVEC identifies nutrient cycling as one of the factors the Corps is instructed, but failed, to consider under 40 C.F.R. § 230.11(e) (2008). The Corpsâ CDDs themselves acknowledge this shortcoming, noting that the effects of filling ephemeral streams on nutrient cycling are difficult to measure and that there is a lack of consensus among the relevant agencies about how best to collect quantitative evidence regarding these functions. To compensate for these effects, however, the Corpsâ permitting decisions call for limiting impacts to channels that do not sustain long periods of flow and for establishing a riparian buffer around mitigation sites.
In fact, in each of its CDDs, the Corps provides its complete findings under 40 C.F.R. § 230.11(e) (2008), including a section on âPhysical and Chemical Characteristics of the Aquatic Ecosystem,â which covers substrate characteristics, water quality, current patterns and water circulation, water fluctuations, and salinity gradients; and a section on âBiological Characteristics of the Aquatic Ecosystem,â which covers threatened and endangered species and their habitat, aquatic organisms in the food web, and other wildlife. Camp Branch CDD 10-16; Black Castle CDD 13-31; Laxare East CDD 15-28; Republic No. 2 CDD 15-19. The Corps is entitled to use its best professional judgment for assessing the structure and function of the affected aquatic ecosystem, and its CDDs address the required considerations under the Guidelines, 40 C.F.R. § 230.11(e) (2008).
The district court placed great weight on the Appelleesâ expert testimony at trial in finding that the Corpsâ functional evaluation was lacking. We acknowledge the importance of extra-record evidence in NEPA cases to inform the court about environmental factors that the agency may not have considered. While review of agency action is typically limited to the administrative record that was available to the agency at the time of its decision, Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam), a NEPA suit is inherently a challenge to the adequacy of the administrative record, see County of Suffolk v. Secây of the Interior, 562 F.2d 1368, 1384 (2d Cir.1977). That is why, in the NEPA context, âcourts generally have been willing to look outside the record when assessing the adequacy of an EIS or a determination that no EIS is necessary.â Webb v. Gorsuch, 699 F.2d 157, 159 n. 2 (4th Cir.1983) (citing County of Suffolk, 562 F.2d at 1384).
Such consideration of extra-record evidence in a NEPA case does not, however, give courts license to simply substitute the judgment of plaintiffs experts for that of the agencyâs experts.
Having found that the Corps was not obligated to engage in a full functional assessment, it is not our place to dictate how the Corps should go about assessing stream functions and losses. In matters involving complex predictions based on special expertise, âa reviewing court must generally be at its most deferential.â Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). When presented with conflicting evidence, courts must generally defer to the agency evaluation because âan agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.â Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The CDDs issued with each permit include substantial analysis and explanation about the Corpsâ impact findings. These determinations are within the agencyâs special expertise and were based on Corps staffs âbest professional judgment.â As such, the Corps cannot be said to have acted arbitrarily or capriciously.
2.
OVEC next questions the sufficiency of the mitigation plans contained in the
Under the Corpsâ CWA Guidelines, a § 404 permit cannot issue âunless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge [of fill material] on the aquatic ecosystem.â 40 C.F.R. § 230.10(d) (2008). In their MOA of 1990, the EPA and Corps make âno overall net lossâ the goal of the § 404 regulatory program,
Compensatory mitigation can include the restoration of existing wetlands or the creation of new wetlands, and is to be done as close to the discharge site as possible (âon-site mitigationâ). Id. Where on-site mitigation is not possible, off-site mitigation is permitted but should 'take place in the same geographic area if possible. Id. The MOA specifically directs that the functional values lost should be carefully considered when determining compensatory mitigation, and that, generally, in-kind mitigation should be used. Id. Noting the continued uncertainty of success in wetland creation, the MOA further instructs that restoration options should be considered before creation options. Id.
The mitigation measures specified for the four challenged fill projects include stream enhancement,
The Corps, meanwhile, seems to take the position that, whatever the functional uniqueness of headwater streams, nothing in NEPA, the CWA, or the Corpsâ regulations prevents them from allowing mitigation of headwater stream destruction through enhancement, restoration, or creation of a downstream perennial system.
The district court, again relying heavily on the trial testimony of OVEC experts, concluded that the Corps had failed to fully assess the impacts of destroying headwater streams. Taking OVECâs view of the unique role of headwater streams, the district court found that the mitigation plans failed to explain how a valley fillâs destruction of headwater streams could be compensated for simply by the creation, enhancement, or replacement of an equal or greater length of some other stream type. The court further suggested that the Corpsâ failure to conduct a full functional assessment meant that it ignored a number of critical headwater stream values in its evaluation of adverse impacts, and therefore the mitigation plans could not possibly be adequate to offset adverse impacts.
The Corps defends the mitigation plans by arguing that nothing in the CWA Guidelines requires compensatory mitigation measures that precisely replicate the functions of the impacted streams. Having reviewed the Guidelines, this Court concludes that, whatever the role of head-water streams in overall watershed ecology, the Corps is not required to differentiate between headwater and other stream types in the determination of mitigation measures.
In reaching this conclusion, we look to the Corpsâ guidance in RGL 02-02, which
As we have already noted, a full functional assessment protocol is not yet available to the Corps, and the Corps is thus entitled to use its best professional judgment to assess structural and functional losses for purposes of the Guidelines. Similarly, RGL 02-02 advises that, where a full functional assessment is not feasible, the only compensatory mitigation measure the Corps must require in a permitting decision is stream replacement on a one-to-one basis.
The Corpsâ guidance does instruct that âfunctional values lost by the resource to be impacted must be consideredâ in developing a mitigation plan. MOA, 55 Fed.Reg. 9210 (Mar. 12, 1990). But the guidance also provides that compensatory mitigation must be âpracticable.â Id. The Corpsâ guidance documents indicate that, in âdetermining âpracticability,â Districts will consider the availability of suitable locations, constructability, overall costs, technical requirements, and logistics.â RGL 02-02. âIn certain circumstances of regions of the country, on-site compensatory mitigation opportunities are limited,â and the Corps must look instead to other compensatory options. Thomas F. Caver, Deputy Dir. of Civil Works, U.S. Army Corps of Engârs, Internal Guidance on Mitigation for Impacts to Aquatic Resources from Surface Coal Mining (May 7, 2004). In other circumstances, the stream functions being lost on-site may be âubiquitous in the watershed,â while âwetland functions are rare or degraded.â Id. In such a situation, âit may be appropriate to replace lost stream functions with wetlands functions.â Id. Thus, where on-site or in-kind functional mitigation is not practicable or even ecologically preferable, the Corpsâ guidance allows compensation plans that employ off-site or out-of-kind mitigation based on improvements to the overall aquatic health of the watershed.
For example, in the case of the Laxare East and Black Castle permits, the Corpâs mitigation plans aimed to improve the water quality of already severely distressed streams in portions of the Laurel Creek watershed. Similarly, in the case of the Republic No. 2 mine, the mitigation plan was designed to address stability issues along the Long Branch tributary, based on an assessment that âthis section of stream could contribute to improved aquatic habitat and ultimately aquatic diversity .... by attempting to replace the chemical, hy-drologic, and geomorphic functions of the
Moreover, each of the mitigation plans for the challenged permits included requirements for continued monitoring of the efficacy of the mitigation measures, in some cases for as much as 10 years.
OVEC also takes issue with the use of stream creation as a mitigation measure. The Camp Branch and Laxare East plans both employ stream creation as a significant component of their compensatory mitigation schemes. Under these plans,' sediment ditches used during mining to collect runoff, control drainage, and collect sediment, will be converted into new stream channels. OVECâs experts have questioned these stream creation proposals, calling them scientifically untested and unsound.
The Corpsâ support for its claim that the proposed stream creation measures have good potential for success is admittedly limited. The Corps cites one example of stream creation in a mining area in Kentucky as well as an Ohio State University study on the potential for enhancing the natural ecology of drainage ditches. See Camp Branch CDD 44; Laxare East CDD 98-101. However, the novelty of a mitigation measure alone cannot be the basis of our decision to discredit it. When an agency is called upon to make complex predictions within its area of special expertise, a reviewing court must be at its most deferential. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (âWhen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.â). The Corps admits that â[t]ime is required with any new, scientifically based development as well as monitoring and evaluation to show the success and/or failures of the project.â Camp Branch CDD (Supplement) 3. And, the monitoring plans in place for Camp Branch and Lax-are East allow the Corps to reevaluate their efficacy determinations as the stream creation projects progress.
Because the mitigation measures reflect the Corpsâ determinations of the most appropriate and practicable means of compensating for anticipated impacts and losses of value, we cannot say that the Corpsâ conclusion that compensatory mitigation would offset the adverse effects of the All
The Corpsâ proposed mitigation plans are also sufficient to justify issuance of a mitigated FONSI for purposes of NEPA. In OâReilly v. U.S. Army Corps of Engrâs, 477 F.3d 225 (5th Cir.2007), the Fifth Circuit found that the Corpsâ EA and mitigated FONSI for a § 404 permit application were inadequate because the Corps failed to establish that identified adverse impacts of wetland filling would actually be corrected by its proposed mitigation measures.
In this case, by contrast, the Corps did explain how mitigation would compensate for fill impacts. In the Black Castle CDD, for example, the Corps explains that:
[t]he applicantâs mitigation plan would be expected to result in the replacement of the appropriate type and quantity of aquatic functions lost due to project impacts. The goal of the applicantâs CMP [Compensatory Mitigation Plan] is to reestablish, restore, and/or enhance the values of each habitat parameter (i.e. embeddedness and sediment deposition, velocity/depth regime, riparian cover, bank stability and vegetative protection), in order to promote a general improvement in the areaâs existing benthic conditions. Before impacts, the streams proposed to be impacted by the proposed activities were measured for detailed Rosgen-type morphological parameters, aquatic resources, habitat, substrate, and riparian parameters in order to reconstruct these sections of channels to their approximate original state ..., thus utilizing an ecological restoration approach on these sections of channels by replacing the physical and geomorphic functions.... This approach focuses on replacing the corridor structure and function, therefore, enabling communities to recover to a sustainable level. Stream functions were identified and quantified as part of the conducted benthic surveys, water sampling, habitat assessments, and [West Virginia Stream Condition Index] WVSCI and were used in the design of the applicantâs CMP. A variety of components that address aquatic habitat functions such as improvement to water quality and temperature, organic input, and macroinvertebrate, fisheries, and riparian habitat has been incorporated into the applicantâs mitigation plan. The applicantâs specific goals include reducing sediment runoff, improving marginal aquatic habitats for benthic macroinver-tebrates and fish both functionally and aesthetically, and restoring functions by eradicating invasive species, stabilizing eroded and collapsed banks, installing proper road crossings, placing or repositioning boulders, and planting native riparian vegetation. These improvements would ultimately improve aquatic habitat for fauna within the Laurel Creek watershed.
Black Castle CDD 42-43; see also id. at
The Corps is thus able to âarticulate a satisfactory explanation for its action including a ârational connection between the facts found and the choice made.â â Motor Vehicle Mfrs. Assân v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); see also Ohio River Valley Envtl. Coal., Inc. v. Kempthorne, 473 F.3d 94, 102-103 (4th Cir.2006). Given this, we conclude that the compensatory mitigation plans contained in the CDDs for each of the challenged permits were sufficient both for purposes of satisfying the Corpsâ requirements under the CWA and for justifying issuance of a mitigated FONSI under NEPA.
3.
Under both NEPA and the CWA, the Corps is required to consider the cumulative impacts of an applicantâs proposed project. Under NEPA, the Corps must evaluate â[wjhether the action is related to other actions with individually insignificant but cumulatively significant impacts.â 40 C.F.R. § 1508.27(b)(7) (2008). Under the CWA, the Corpsâ Guidelines instruct that a project should not receive a § 404 permit âunless it can be demonstrated that [the project] will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern.â 40 C.F.R. § 230.1(c) (2008). In each of the four challenged permitting decisions, the Corps found that no cumulatively significant impacts would occur.
OVEC argues that the Corpsâ cumulative impact analysis failed in two respects. First, OVEC claims that, because the Corps improperly limited the scope of its NEPA analysis to the streams alone, it also failed to assess the cumulative impacts of the fills on the valleys themselves. Given our earlier finding that the Corps was entitled to deference in its decision to limit the scope of its NEPA analysis to the impacts from the filling of jurisdictional waters, this first argument by OVEC must fail.
Second, OVEC argues that the Corpsâ conclusions about cumulative impacts with regard to the streams and watersheds themselves were insufficient. Appellants respond that the Corps complied with relevant regulations and guidance in its cumulative impact analysis. For each CDD, the Corps included an evaluation of (1) present conditions and probable future conditions if fill activity is not allowed; (2) the direct and indirect effects that fill activity would have on those conditions; and (3) how fill activity would interact with past or future impacts from other activity in the area. See Camp Branch CDD 24-30; Black Castle CDD 43-53; Laxare East CDD 43-56; Republic No. 2 CDD 21-24.
The district court found the Corpsâ cumulative impact analysis faulty because it presumed that the Corpsâ determination relied improperly on mitigation to eliminate adverse impacts. The district court is correct that a âmitigated to insignificanceâ analysis does not suffice to demonstrate an absence of cumulatively significant impacts. The Fifth Circuit rejected just such an approach in OâReilly, 477 F.3d at 234-35.
In OâReilly, the Corps had issued a CWA § 404 permit to a residential devel
This case is different. While the Corpsâ finding of no cumulative adverse impacts does lean, to some extent, on mitigation, it is not in the same perfunctory, conclusory way that was found inadequate in OâReilly. For one thing, the Corpsâ findings rely in part on both the WVDEPâs CWA § 401 certification and SMCRA permitting process. Under CWA § 401, the WVDEP must certify that proposed mining activity will not cause or contribute to a violation of state water quality standards. See 33 U.S.C. § 1341 (2000). The § 401 certification process involves, among other things, consideration of:
impacts of the project in light of other activities in the watershed ... and anti-degradation requirements .... [which] work to reduce or eliminate cumulative impacts by providing a process to maintain existing water quality levels to meet intended uses.... Therefore, the Corps views the state water quality certification as satisfying the water quality portion of cumulative impact analysis....
Laxare East CDD 122. A § 401 certification is considered conclusive, and no independent analysis of the certification is required. 33 C.F.R. § 320.4(d) (2008); see also Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Engârs, 524 F.3d 938 (9th Cir.2008).
The SMCRA permitting process also requires the director of WVDEP to prepare an assessment of the probable cumulative impact of all anticipated (past, present, and future) mining on the hydrologic balance in the area of the mine and make a finding that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. W. Va.Code § 22-3-18(b)(3) (2005). This Cumulative Hydrologic Impact Assessment (âCHIAâ) is part of the administrative record for each of the challenged permits. See, e.g., Laxare East CDD 134.
In finding the Corpsâ cumulative impact analysis inadequate, the district court charged that â[t]he Corps does not explain how the cumulative destruction of headwa-ter streams already affected by mining in these watersheds will not contribute to an adverse impact on aquatic resources.â Ohio Valley Envtl. Coal. v. U.S. Army Corps of Engârs, 479 F.Supp.2d 607, 659 (S.D.W.Va.2007). In fact, each of the Corpsâ permits directly addresses the cumulative impact issue. In the Republic No. 2 CDD, for example, the Corps acknowledges that the impact of pre-SMCRA mining has degraded the upper Cabin Creek watershed. See Republic No. 2 CDD 23. However, the Corps notes that mining in the same seams as proposed for Republic No. 2 has not resulted in any acid mine drainage problems. Id. at 16. The
Thus, the Corps concluded that
while there would be short-term impacts to the aquatic and terrestrial environment as a result of the proposal, it is anticipated the proposed mining activities would have no adverse cumulative environmental impacts within the sub-watershed or the overall Cabin Creek watershed. The proposal, if implemented as described, should improve the overall ecological balance of the area. Further, the proposal and resultant mitigation and reclamation requirements are expected to improve the overall health of the Cabin Creek watershed.
Id. at 24.
Because the Corps has analyzed cumulative impacts in each of the challenged permits and has articulated a satisfactory explanation for its conclusion that cumulative impacts would not be significantly adverse, we find that the Corps did not act arbitrarily or capriciously in conducting its required cumulative impact analysis.
V.
Appellants also challenge the district courtâs June 13, 2007, order granting OVEC declaratory relief on the question of whether stream segments connecting valley fills to downstream sediment ponds are properly classifiable under the CWA as waters of the United States and thus not within the Corpsâ § 404 authority to allow. We conclude that stream segments, together with the sediment ponds to which they connect, are unitary âwaste treatment systems,â not âwaters of the United States,â and that the Corpsâ has not exceeded its § 404 authority in permitting them.
A.
At the outset of our analysis on this issue, we must deal with the Intervenorsâ argument that the doctrine of res judicata precludes OVECâs claim of entitlement to declaratory relief. Intervenors argue that plaintiffs could and should have raised this claim in the course of the Bragg v. Robertson litigation, and their failure to do so bars them from raising it now. The district court rejected this argument in a memorandum opinion and order dated August 10, 2006; we review de novo, see Q Intâl Courier, Inc. v. Smoak, 441 F.3d 214, 216 (4th Cir.2006).
In Bragg v. Robertson, 54 F.Supp.2d 653 (S.D.W.Va.1999), aff'd in part, revâd in part sub nom. Bragg v. W. Va. Coal Assân, 248 F.3d 275 (4th Cir.2001), the plaintiffsâ including several individuals and the West Virginia Highlands Conservancy, one of the plaintiffs in this case â brought suit against, inter alia, the Corps and WVDEP for various alleged violations of their statutory duties under SMCRA, the CWA, and NEPA in the course of their mountaintop removal permitting activities. With respect to the Corps, the plaintiffsâ complaint alleged that the agency did not have authority under the CWA to regulate valley
Plaintiffs subsequently entered into a settlement agreement with the Corps that resolved their claims regarding the Corpsâ past alleged violations under the CWA and NEPA.
Intervenors claim that the district courtâs orders in the Bragg litigation were final adjudications for purposes of claim preclusion and that principles of res judi-cata bar OVEC from now challenging the Corpâs permitting of the use of stream segments to connect fills to downstream sediment ponds. We find this argument unpersuasive.
Res judicata or claim preclusion bars a party from suing on a claim that has already been âlitigated to a final judgment by that party or such partyâs privies and precludes the assertion by such parties of any legal theory, cause of action, or defense which could have been asserted in that action.â 18 James Wm. Moore et al., Mooreâs Federal Practice § 131.10(l)(a) (3d ed.2008). For res judi-cata to prevent a party from raising a claim, three elements must be present: â(1) a judgment on the merits in a prior suit resolving (2) claims by the same parties or their privies, and (3) a subsequent suit based on the same cause of action.â Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir.1990).
OVEC argues that the claims involved in this case and in Bragg are different, because in Bragg the plaintiffs challenged the Corpsâ authority to permit valley fills and in this case the plaintiffs have challenged the Corpsâ authority to authorize pollutant discharge into stream segments. This argument, as Intervenors point out, misunderstands the principles of claim preclusion. Even claims that were not raised in the original suit may be precluded if they arose from the same transaction or occurrence as those raised
Nonetheless, claim preclusion does not apply in this case for two reasons. First, the Bragg settlement agreement explicitly reserved plaintiffsâ right to challenge the Corpsâ valley fill permit authority in the future. The Bragg plaintiffs conceded only that they would not raise such a challenge on the theory that mining spoil is not fill material. Settlement agreements operate on contract principles, and thus the preclusive effect of a settlement agreement âshould be measured by the intent of the parties.â 18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4443 (2d ed.2002). Here it seems clear that the parties intended to retain for the plaintiffs the right to challenge the Corpsâ permitting of future valley fill projects on any grounds other than the one specifically raised in Bragg.
Second, OVEC is challenging a different set of permits in this case than those at issue in Bragg. The Corps had not even issued the permits in question here at the time of the Bragg litigation. Intervenorsâ argument that OVEC should have raised its stream segment claim during the Bragg litigation falls flat because the claim here concerns four permits that were not even in existence at the time of Bragg. The fact that the two suits involve challenges to very similar courses of conduct does not matter; a prior judgment âcannot be given the effect of extinguishing claims which did not even then exist....â Lawlor v. Natâl Screen Serv. Corp., 349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). A contrary finding would confer âpartial immunity from civil liability for future violations.â Id. at 329, 75 S.Ct. 865.
For these reasons, we affirm the lower courtâs finding that OVECâs stream segments claim is not barred by principles of res judicata.
B.
The district courtâs June 13, 2007, order granted OVECâs motion for partial summary judgment on its claim that the Corps did not have authority under § 404 of the CWA to authorize the discharge of fill sediment into the stream segments that link the fill to a downstream sediment pond. The court found that the stream segments were âwaters of the United Statesâ and not part of âwaste treatment systems,â as the Corps characterized them. While acknowledging the deference traditionally due an agencyâs interpretation of its own regulations, the court found that in this case the Corpsâ interpretation was a post hoc rationalization, created for the purposes of this litigation. As a result, the court held that discharges from the fill into the segment streams were impermissible without a separate CWA § 402 NPDES permit. We review this question of law de novo. United States v. Deaton, 332 F.3d 698, 703-04 (4th Cir.2003).
Because this is an issue of statutory and regulatory interpretation, we must apply the framework for review laid out in Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945).
In determining whether the Corpsâ interpretation is entitled to deference, this Court must first look to the language of the authorizing statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (1984). An agencyâs reasonable interpretation of a statute is entitled to deference, unless Congress has already expressed a clearly contrary intent. Id.
The Corpsâ regulations implementing the CWA have defined the âwaters of the United Statesâ to include interstate waters as well as âall other waters such as intrastate lakes, rivers, [and] streams (including intermittent streams).... â 33 C.F.R. § 328.3(a)(3) (2008); 40 C.F.R. § 232.2 (2008). The regulations also include in the definition â[a]ll impoundments of waters otherwise defined as waters of the United States under the definition.â 33 C.F.R. § 328.3(a)(4) (2008); see also 40 C.F.R. § 232.2 (2008). The regulations, however, exclude from the definition âwaste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA.â 33 C.F.R. § 328.3(a)(8) (2008); see also 40 C.F.R. § 232.2 (2008).
In Deaton, 332 F.3d at 709, this Court found that Congressâ decision to define ânavigable watersâ broadly as âwaters of the United Statesâ evinced an intent to regulate at least some waters that would not be considered navigable. The Court went on to find, however, that the Act was not clear what non-navigable waters it intended to cover, and thus that the phrase âwaters of the United Statesâ was âsufficiently ambiguous to constitute an implied delegation of authority to the Corpsâ to determine the scope of the phrase. Id. at 709-10.
Given that the Corps has the authority to determine which waters are covered by the CWA, this Court must next look to the Corpsâ regulations implementing the CWA. Id. at 710. If the regulation defining âwaters of the United Statesâ is ambiguous, then the Corpsâ interpretation of that definition is entitled to Seminole Rock deference and controls unless plainly erroneous or inconsistent with the regulation. Id. at 711.
Appellants and OVEC agree that, in the absence of the valley fill, the stream segments in question would be considered âwaters of the United Statesâ because they would be part of a natural stream pursuant to 33 C.F.R. § 328.3(a)(3). OVEC contends that, even after the streams have been co-opted for use in conjunction with valley fills, the segments are still âim-poundments of water otherwise defined as waters of the United Statesâ and thus treated as âwaters of the United Statesâ under 33 C.F.R. § 328.3(a)(4). If OVEC is correct, any discharge of sediment into these stream segments from the valley fills would require a CWA § 402 NPDES permit. The Corps, however, counters that the stream segments and the sediment ponds to which they connect form a âwaste treatment systemâ under 33 C.F.R. § 328.3(a)(8). Thus, in the Corpsâ view, the stream segments are exempt from the âwaters of the United Statesâ definition and a § 404 permit suffices to authorize them.
The Corpsâ definition of âwaters of the United Statesâ relies heavily on that adopted by the EPA in its CWA § 402 regulations. Compare 33 C.F.R. § 328.3 (2008) and 40 C.F.R. § 232.2 (2008) with 40 C.F.R. § 122.2 (2008). In its exemption of waste treatment systems, the EPA regulations provide that â[t]his exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States ... nor resulted from the impoundment of waters of the United States.â 40 C.F.R. § 122.2. Signifi
The issue, then, is to determine whether the Corpsâ interpretation of 33 C.F.R. § 328.3(a)(8) (2008) is âplainly erroneous or inconsistent with the regulation.â Seminole Rock, 325 U.S. at 414, 65 S.Ct. 1215 (1945). Appellants arg-ue that the Corps is entitled to Seminole Rock deference because it has consistently treated stream segments and sediment ponds as âwaste treatment systemsâ in accordance with longstanding EPA guidance on the matter. OVEC contends, however, that we should follow the district court and find that the Corpsâ position is a post hoc rationalization, created for the purposes of defending this litigation, and is thus entitled to no deference. As support for this argument, OVEC points to the fact that none of the CDDs for the four challenged permits included any reference to the âwaste treatmentâ exception when originally issued; only when the permits were reissued after voluntary remand to the Corps did the waste treatment language appear.
Notwithstanding the Seminole Rock principle that significant deference is due an agencyâs interpretation of its own regulations, such deference may not be required when the agencyâs advocated interpretation is one that it has just adopted for the purpose of litigation and that is âwholly unsupported by regulating, rulings, or administrative practice.â Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The interpretation must reflect the agencyâs fair and considered judgment on the matter. See Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). To the extent that Appellees are right, and the Corps only adopted this position as a litigation defense, it is not entitled to Seminole Rock deference. However, the Corps argues that its position has been consistent and consonant with longstanding EPA guidance.
As with much in this case, the history of the EPAâs and the Corpsâ positions on this issue is complicated. As noted earlier, in 1980, the EPA suspended its definition of the term âwaste treatment system,â found originally in 40 C.F.R. § 122.2, and did not issue a revised definition. Almost a decade later, in West Virginia Coal Association v. Reilly, 728 F.Supp. 1276 (S.D.W.Va.1989) â a challenge by two coal mining associations and several mining companies to the EPAâs policies strictly limiting the use of in-stream treatment of mining wasteâ the EPA took the position that in-stream sediment ponds and the waters above them are included in the definition of âwaters of the United Statesâ because they are an impoundment of waters of the United States. The court upheld this position, finding that it was not plainly erroneous or inconsistent with the EPAâs regulations or with the CWA itself. Id. at 1290-91.
The Reilly plaintiffs argued that the stream segments and sediment ponds were excepted from § 402 regulation because they fell under the Corpsâ § 404 authority instead. Id. at 1285. The court rejected this argument finding that, while the regulations themselves offered confusing guidance on the matter, the Corps and the EPA had agreed that sediment-laden run
Then, in a 1992 guidance document, the EPA indicated, in the context of advising on an Alaskan gold mining project, that impoundments âcreated by the discharge of fill material ... if permitted by the Corps under Section 404 for purposes of creating a waste treatment system, would no longer be waters of the U.S.â Memorandum from LaJuana S. Wilcher, Assistant Administrator for the EPA, to Charles E. Findley, Director, Water Division, Region X, United States Army Corps of Engineers, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 1992).
Finally, in March 2006, after this litigation began, the EPA sent the Corps a letter in which the EPA states that, in the context of Appalachian surface mining, âthe waste treatment system exclusion continues to apply to the creation or use of a waste treatment system in waters below a valley fill permitted by the Corps under CWA § 404.â Letter from Benjamin H. Grumbles, Assistant Administrator for the EPA, to the Hon. John Paul Woodley, Assistant Secretary of the Army (Civil Works) (Mar. 1, 2006) (emphasis added) [hereinafter âthe EPA Letterâ]. The EPA Letter goes on to note that, because it is often impracticable to locate sediment ponds directly below valley fills, the use of a stream segment to connect the fill and pond is âan unavoidable and necessary component of the treatment system.â Id. The Corps then relied on this letter to introduce the âwaste treatment systemâ language into the permits on voluntary remand.
The district court found, and OVEC now argues, that the EPA Letter was a post hoc rationalization and did not constitute the âfair and considered judgmentâ of the EPA or, in turn, the Corps. In support of its argument that the âwaste treatment systemâ interpretation was not a post hoc rationalization, the Corps points to the fact that, over the twenty-five years that the EPA and WVDEP have been issuing § 402 NPDES permits, those agencies have never required an NPDES permit for the stream segments that are used in numerous surface mining operations to link § 404-permitted valley fills to downstream sediment ponds. Moreover, the WVDEP, which has been operating an EPA-approved NPDES program since 1982, has also taken the position that the permitting of segment streams is within the Corpsâ authority. (See Joint Amicus Brief of the West Virginia Department of Commerce and the West Virginia Department of Environmental Protection as Amici Curiae Supporting Appellants at 16.)
This kind of consistent administrative practice suggests that the Corpsâ and EPAâs position is not a post hoc rationalization. Cf. Bowen, 488 U.S. at 212, 109 S.Ct. 468 (âWe have never applied the principle [of deference] ... to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice.â). The EPAâs position in Reilly, at first glance, seems difficult to reconcile with the position it and the Corps now claim. But, the distinction lies in the fact that the Reilly case arose in the con
In Reilly, the EPA was objecting to the fact that West Virginia, in issuing § 402 permits that allowed in-stream treatment ponds, had analyzed discharges from the ponds but had not analyzed the impacts of creating the ponds themselves. The EPA was not confronted in Reilly with a situation where the treatment system was authorized by a § 404 permit issued by the Corps.
Even if the Corpsâ âwaste treatment systemâ argument was a post hoc rationalization when it was first raised, once the Corps reconsidered and reissued the permits on voluntary remand, the jus-tomation was no longer post hoc and it is entitled to deference.
The final step in the combined Chevron and Seminole Rock analysis is to
In making this determination, we must first appreciate the statutory tightrope that the Corps walks in its permitting decisions. In passing the CWA, Congress aimed âto restore and maintain the chemical, physical, and biological integrity of the Nationâs waters.â 38 U.S.C. § 1251(a) (2000). But, in passing SMCRA, Congress sought to âstrike a balance between protection of the environment and agricultural productivity and the Nationâs need for coal as an essential source of energy.â 30 U.S.C. § 1202(f)(2000). The Corps, in permitting sediment ponds and accompanying stream segments under its § 404 authority, is attempting to harmonize the two statutesâ goals: ensuring that mining operations can proceed while maintaining the highest level of water quality possible outside of the mining area.
Sediment ponds represent the âbest technology currently availableâ for the treatment of sedimentary runoff from surface mining valley fills. In fact, the regulations of the Department of the Interiorâs Office of Surface Mining specifically contemplate the use of in-stream sediment ponds. 30 C.F.R. § 816.46(c) (2008). While ideally these ponds would be located immediately adjacent to the fills, the steep Appalachian terrain often does not allow this result. The topographical realities of the area make stream segments a necessary component of the construction of a waste treatment system for valley fill runoff. (See, e.g., J.A. 653.) This system, in turn, is necessary to ensure that water released from the mining area into existing streams meets CWA § 402 standards.
It is undisputed in this litigation that the Corps has the authority under CWA § 404 to permit the filling of jurisdictional waters to move runoff away from valley fills. See Kentuckians for the Commonwealth v. Ri-venburgh, 317 F.3d 425 (4th Cir.2003). It is also undisputed that the Corps has authority to permit the construction of sediment ponds to treat that runoff before it is discharged back into jurisdictional waters. OVEC asks us now to take the position that it would be an unreasonable construction of the CWA to allow the Corps to also use its § 404 authority to permit the stream segments that must, as a practical reality, be used to move runoff from the fill to the sediment ponds. We decline to do so, and find instead that the Corpsâ interpretation of its authority was reasonable in light of the CWA and entitled to deference. The district courtâs grant of partial summary judgment on OVECâs claim for declaratory relief is reversed.
VI.
Since the district courtâs rulings in this case, the Corps has issued five new individual CWA § 404 permits for surface coal mines in West Virginia. OVEC now requests that this court take judicial notice of these permit decision documents, as public records relevant to the matter at issue. The Corps does not object to our taking notice of the existence of the documents, but points out that OVEC actually seeks notice of its own interpretation of the contents of those documents. The parties clearly and reasonably disagree about the meaning to be ascribed to these new decision documents, and we therefore decline to judicially notice them. See Fed. R.Evid. 201(b); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989).
For the foregoing reasons, we reverse and vacate the district courtâs March 23, 2007, opinion and order rescinding the four challenged permits and vacate the district courtâs injunction of activity under those permits. We also reverse the district courtâs June 13, 2007, order granting declaratory relief to OVEC on the issue of whether the stream segments used to connect valley fills to downstream sediment ponds are properly characterized as âwaters of the United States.â Finally, we deny OVECâs motions for judicial notice. We remand for further proceedings consistent with this opinion.
IT IS SO ORDERED
. Mine operators may seek a general § 404 permit for the discharge of fill material "on a State, regional, or nationwide basisâ if their activities "will cause only minimal adverse effects when performed separately, and will have only minimal cumulative adverse effect on the environment.â 33 U.S.C. § 1344(e)(l)(2000). For fill activities that do not meet the requirements for a general permit, the Corps issues individual § 404 permits for discharges at "specified disposal sitesâ on a case-by-case basis. 33 U.S.C. § 1344(a)(2000); Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 496 (4th Cir.2005).
. The Camp Branch project includes 4 fills impacting 15,059 linear feet of intermittent and ephemeral streams, and 4 associated sediment ponds that would temporarily impound an additional 455 linear feet of intermittent streams. The Black Castle project includes 9 valley fills impacting 13,401 linear feet of intermittent and ephemeral streams, and 6 associated sediment ponds, temporarily impounding an additional 879 linear feet of intermittent streams. Republic No. 2's project includes 3 valley fills impacting 9,918 linear feet of intermittent and ephemeral streams, and 3 associated sediment ponds temporarily impounding an additional 690 linear feet of intermittent streams. Finally, the Laxare East project involves 7 valley fills, impacting 24,860 linear feet of intermittent and ephemeral streams, and 10 associated sediment ponds temporarily impounding an additional 3,099 linear feet of intermittent and ephemeral streams.
. The court later granted Intervenorsâ request for a limited stay of the injunctions for some of the fills, provided that Intervenors complied with all conditions, including mitigation requirements, of the permits.
. The court also granted a motion by the Intervenors to stay the effect of the June 13 order pending appeal.
. States are free to adopt more stringent regulations than those mandated by SMCRA. 30 U.S.C. § 1255(b) (2000).
. Where a state does not have a federally approved SMCRA program in place, surface mining operations within that state must be permitted by the Secretary of the Interior. 30 U.S.C. § 1256 (2000).
. A "point sourceâ is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.â 33 U.S.C. § 1362(14) (2000).
. In Kentuckians for the Commonwealth, 317 F.3d 425, this Court upheld the Corpsâ interpretation of the term âfill materialâ to include coal mining overburden as a permissible construction of CWA § 404.
. âWaters of the United States" include interstate waters and all waters used (or that could potentially be used) in interstate commerce, and "(a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams) [et ah] ... the use, degradation or destruction of which could affect interstate or foreign commerce_â 40 C.F.R. § 230.3(s) (2008).
. In their appeal of the March 23 opinion and order, the Intervenors have questioned OVEC's standing to challenge the Republic No. 2 permit. Intervenors claim that organizational standing is inappropriate because no member of the three plaintiff organizations has sustained an ''injury in factâ as a result of the Corps' § 404 permitting with respect to Republic No. 2.
''[EJnvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons âfor whom the aesthetic and recreational values of the area will be lessenedâ by the challenged activity.â Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). As the district court determined below, one of OVEC's members and employees, Vivian Stockman, travels to the Republic No. 2 mine site to take photographs of nature and she intends to do so regularly in the future. Ms. Stockman will thus suffer a direct aesthetic injury as a result of the permitted activity, and OVEC therefore has standing to proceed with its challenge to the Republic No. 2 permit. See id. at 181, 120 S.Ct. 693 (noting that an organization has standing to bring suit on behalf of its members where members could sue in their own right, the interests involved are germane to the organization's purpose, and the requested relief does not require the participation of individual members in the suit).
. The Ninth Circuit's opinion in Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir.2005), is not to the contrary. In that case, the court was not confronted, as we are, with the problem of overlapping federal and state regulatory schemes.
. This interpretation is also not in tension with NEPA itself. ''[T]o get to Seminole Rock deference, a court must first address the straightforward Chevron [Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)] question whether an agency regulation, as interpreted violates the statute.â Kentuckians for the Commonwealth, 317 F.3d at 440 (quoting John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L.Rev. 612, 627 n. 78 (1996)). NEPA is not a results-driven statute, and requires only that federal agencies carefully consider and weigh competing policy values, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), which the Corps has plainly done here.
. The CDDs issued with each of the challenged permits included the Corpsâ NEPA and CWA analyses and conclusions, as well as details of the proposed compensatory mitigation plans.
. In April 2008, an amendment to the Guidelines superseded RGL 02-02 as guidance on implementation of the Corps' compensatory mitigation policy. See 40 C.F.R. § 230.91(e)(1) (2008). It also superseded the MOA with respect to any provisions "relating to the amount, type, and location of compensatory mitigation projects,â though all other provisions of the MOA remain in effect. See 40 C.F.R. § 230.91(e)(2) (2008). Because the MOA and RGL 02-02 were valid guidance in place at the time of the Corpsâ permitting decisions, however, we must consider the agency's action in light of those guidance documents to determine whether the Corps acted in an arbitrary or capricious manner.
. OVEC further contends that, consistent with the CWA Guidelines, the MOA also compels a full functional assessment.
. The dissent misconstrues the significance of the Corpsâ use of structural measurements as a surrogate for a full functional analysis. The Corps' methodology does not, as the dissent suggests, make "functionâ "merely a redundancy for 'structure.' â Infra at 218. Instead, the Corps has determined, using its best professional judgment, that structural measurements can provide adequate indications of stream function where a full functional assessment is not possible. Given the highly deferential standard under which we review administrative action, we cannot say that this approach is "plainly erroneous or inconsistent with the regulation.â Auer, 519 U.S. at 461, 117 S.Ct. 905 (internal quotations omitted). Acknowledgement of this basic principle of Seminole Rock deference is conspicuously absent from the dissent.
. Benthic macroinvertebrates are nonverteb-rate, aquatic organisms that are large enough to be seen with the naked eye.
. Similar language can be found in the CDDs for the other permits. See Camp Branch CDD (Supplement) 5-6; Laxare East CDD 106-07; Republic No. 2 CDD 43-44.
. The dissent suggests that we have âfailed to identify the stream functions to be measured under § 230.11(e),â and thus "cannot meaningfully evaluate the adequacy of the stream assessment protocols that were used.â Infra at 217. But the only clues § 230.11(e) offers regarding the stream functions to be measured are the § 230.11(e) factors â "potential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities,â 40 C.F.R. § 230.11(e) (2008).â and each of the Corps' CDDs undisputedly address these factors.
For the Court to attempt to define stream function beyond these guidelines would certainly be inappropriate judicial intrusion into the Corps and EPA's sphere of authority. Yet that is precisely what the dissent attempts to do. The dissent looks to the functional assessment protocol that is currently being developed by the EPA and divines from that a list of functions that the Corps should have evaluated. See infra at 219-21. At this stage, however, the EPA protocol is still only in development. The dissent provides no explanation of why "the most logical place to begin an inquiry into the meaning of the term 'function,' â infra at 219, would be with a protocol that still has not been developed as opposed to the already existing internal guidance documents issued by the EPA and the Corps. In fact, it is difficult to understand how the Corps could have abused its discretion by not
. Moreover, whatever concerns OVECâs experts had regarding the sufficiency of the Corpsâ functional analysis were expressed in their comments to the Corps during the notice-and-comment period for the permits, and were incorporated into and responded to in the CDDs.
. âNo overall net lossâ is classified only as a âgoalâ because the agencies "recognized that no net loss of wetlands functions and values may not be achieved in each and every permit action.â 55 Fed.Reg. 9210 (Mar. 12, 1990).
. Enhancement may take the form of planting of native species of trees and plants along and in streams, establishing proper stream crossings, stabilizing banks, and/or cleaning stream beds to improve the streams' habitat, aquatic diversity, and water quality.
. For the Camp Branch project, the Corpsâ mitigation plan requires restoration of 2,035 linear feet of impacted streams, including the sediment ponds and the stream segments running between the fill and the sediment pond. It also requires creation of 41,271 linear feet of stream, both at the mining site and at an adjacent off-site location within the same watershed. A minimum 50-foot vegetated riparian zone would be established along all of the restored and created stream areas.
For the Black Castle project, the Corps' mitigation plan includes plans to compensate for temporary impacts caused by construction of the sediment ponds by restoring 7,590 linear feet of stream. Permanent impact mitigation will include enhancement of 18,000 linear feet of perennial streams. The Corps further estimates that the placement of alkaline overburden from the mining project into the fills will actually improve another 5,420 feet of stream below the fills by decreasing the acidity and aluminum levels found in those waters as a result of prior mining activity and construction.
In the case of the Laxare East project, the Corps developed a mitigation plan calling for restoration of 7,101 linear feet of temporarily impacted streams, as well as creation of 13,-621 linear feet of stream and enhancement of another 16,000 linear feet.
Finally, the Corpsâ mitigation plan for the Republic No. 2 project calls for restoration of 2,276 linear feet of temporarily impacted
. The Intervenorsâ expert, Mr. Kirk, did acknowledge that mayfly populations in downstream waters have been reduced as a result of the placement of valley fills in headwaters, but he characterized mayflies as particularly "sensitiveâ organisms and indicated that the reduction in their numbers was "one of the only dramatic changes that occurs, if the water quality still is fairly good downstream....â (J.A. 4352.) Another expert for the Intervenors, Dr. Donald Cherry, testified however that the functions served by the mayflies in these waters were fulfilled by other organisms.
. The dissent contends that this provision of the RGL is inconsistent with 40 C.F.R. § 230.11(e) and thus "illegal.â Infra at 224. But this contention is grounded on the dissentâs faulty assumption that a full functional assessment is required in order to satisfy § 230.11(e). The fact remains that § 230.11(e) provides no guidance as to how "functionâ is to be assessed beyond identifying several factors which the Corps should consider. See 40 C.F.R. § 230.11(e). All four of the challenged CDDs address each of these factors. Given that the Corpsâ guidance documents are not plainly contrary to the meaning of the Guidelines, the dissent's efforts to undermine their legitimacy are unavailing.
. If minimum criteria are not met at the end of the established monitoring period, further monitoring may be required.
. OVEC takes issue with the mitigation measurement standards employed by the Corps, claiming that, for three of the four challenged permits, the Corps relies improperly on the Stream Habitat Unit (âSHUâ) model developed by the applicants to determine mitigation. According to OVEC, the SHU lacks a scientific basis and distorts the evaluation of streams by focusing on habitat measures and physical appearance and giving insufficient weight to stream function measures and to the unique role of headwater streams in watershed ecology. But, the Corps did rely not on the SHU to determine required mitigation. The Corpsâ baseline standard for mitigation is the one-to-one linear feet replacement called for by the Corpsâ guidance documents. The SHU model was used to provide supplemental data regarding habitat and as a measurement standard to help monitor the success of habitat creation, enhancement, or restoration efforts.
. Given our earlier finding that the Corps reasonably restricted the scope of its NEPA analysis, the Corps did not need to consider mitigation efforts beyond those aimed at countering the impacts of the filling of jurisdictional waters.
. Similar explanations were provided in the other challenged CDDs. See Camp Branch CDD 61-62; Laxare East CDD 41-42, 108-09; Republic No. 2 CDD 13-14.
. Similar language can be found in the other permits. See, e.g., Black Castle CDD 43-53; Laxare East CDD 43-56.
. The district court in Bragg, having determined that the settlement agreement was "fair, adequate, and reasonable," dismissed plaintiffs' claims against the federal defendants with prejudice, but granted leave for the plaintiffs to file a second amended complaint. 54 F.Supp.2d at 670. In a separate memorandum opinion and order, see Bragg v. Robertson, 83 F.Supp.2d 713 (S.D.W.Va.2000), the court resolved all outstanding claims (which involved only WVDEP and claims under SMCRA), by accepting a consent decree between the plaintiffs and WVDEP.
. OVEC does not challenge in its arguments that the "same parties or their priviesâ requirement is met.
. The creation of the sediment ponds themselves fall within the Corps' § 404 authority because their embankments are created through the placement of fill material at the bottom of the streams. See Reilly, 728 F.Supp. at 1288.
. The mining company plaintiffs in Reilly argued, in a motion for summary judgment, that the EPA did not have jurisdiction to regulate in-stream treatment facilities because regulatory authority rested with the Secretary of the Army under CWA § 404. 728 F.Supp. at 1282. In response, the EPA took the position that the ponds and the waters above them were "waters of the United Statesâ and within their regulatory jurisdiction because they were an impoundment of waters that would otherwise be "waters of the United States.â Id. at 1289-90. But the mining company plaintiffs had not obtained a § 404 permit for their in-stream treatment facilities, and it was not Corps action, but the actions of West Virginiaâs § 402 NPDES regulatory authority, to which the EPA was taking exception.
In fact, the EPA's policy for in-stream treatment that the court was considering in Reilly allowed that exceptions to the EPA-mandated prohibition on in-stream treatment ponds would be made where there were no other feasible alternatives to in-stream treatment and where the mine operator complied with the Corpsâ CWA Guidelines. 728 F.Supp. at 1279-80 nn. 1-2.
. The CDDs accompanying the reissued permits expressly reference the applicability of the waste treatment exception to the stream segments. {See J.A. 1252, 1729, 2267, 3562-63.)