Case Update: Public Notices for Section 404 Approvals Must Identify Mitigation

Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers

674 F.Supp.2d 783 (S.D. W. VA. 2013)

In Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers, the United States District Court for the Southern District of West Virginia ruled that the U.S. Army Corps of Engineers (“Corps”) violated the Clean Water Act (“CWA”) and the National Environmental Policy Act (“NEPA”) by issuing Section 404 permits with public notices that did not contain site-specific mitigation measures.

The public notice for the first mining operation was three and a half pages long and included basic information relating to the purpose of the notice, Section 404 requirements, and comment procedures. The notice also contained limited project-specific information including the location of the project, a description of the types of structures proposed to be built, and a summary of proposed impacts from the project. Importantly, however, the notice did not provide any information relating to mitigation of the project’s impacts. A year after the public comment period closed, the operator submitted an exhaustive Compensatory Mitigation Plan (“CMP”) to the Corps. The CMP was not made available for public comment. The Corps issued the Section 404 permit along with a Combined Decision Document (“CDD”) that incorporated the entire CMP and acknowledged that the finding of no significant environmental impacts was based upon the CMP’s analysis.

The public notice for the second operation was four pages long, containing essentially the same basic information as the first notice. Importantly, the notice contained little to no information relating to mitigation of the project’s environmental impacts. The operator provided its own CMP approximately 18 months after the public comment period ended, which played a major role in the Corps’ approval of the Section 404 permit. The Corps’ Decision Document included a 20-page evaluation of the CMP and discussed impacts relative to the mitigation measures discussed in the CMP.

The District Court held that neither approval complied with the notice requirements of the CWA and NEPA. Under the CWA issue, the Court stated that public notice must “include sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment.” The Court disagreed with the Corps’ determination that the applications were complete although they lacked any substantive information concerning compensatory mitigation of project impacts. “[C]ompensatory mitigation is the principle factor considered when conducting a § 404 permit review,” and “the most important ‘material issue related to the justification’ of such a permit.” Because the public notices contained no substantive data on mitigation, the notices did not provide the public with an understanding of the justification for the permits. “As a result, the lack of information on mitigation in the notices deprived [the public] of an existing procedural right—the right to comment intelligently.” While declining to hold that the entirety of the CMPs must be released for public review, the Court held that the Corps was required to release some project-specific mitigation information during public review. Because the Corps failed to do so until after the commenting period was closed, the notices “failed to provide the public an adequate opportunity to comment.”

The Court next turned to the NEPA issue. Although “NEPA does not contain specific public comment and review procedures,” the Court noted that federal courts have consistently held that “public involvement lies at the center of NEPA’s procedural requirements.” The Plaintiffs challenge mirrored their claim under the CWA, that the complete exclusion of substantive mitigation data rendered the Corps’ public notices deficient under NEPA. Again, the Court held that “a public notice containing no substantive information on mitigation violates the . . . Guidelines related to agency requirements for public involvement and deprives the public of its procedural right to an adequate opportunity to participate in the permit evaluation process.”

This decision highlights the importance of adequate public notice for Section 404 permit approvals. Because of the critical role played by compensatory mitigation for these approvals, applicants should ensure that public notices are sufficiently descriptive as to the types of mitigation measures that will be employed.

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