Memorandum Opinion and Order

Plaintiffs¹ challenge the decision by the United States Army Corps of Engineers (hereinafter “Army Corps” or simply “the Corps”) to issue an individual Clean Water Act (“CWA”) § 404 permit to Highland Mining Company (“Highland”) to discharge fill material into streams for the purpose of conducting surface coal mining activities at the Reylas Surface Mine located in Logan County, West Virginia.  In April 2011, this Court granted the Corps’ motion to remand the permit to the agency for reconsideration.  In September 2011, the Corps reinstated the permit, and this litigation resumed.  As a result of actions by the Corps during the remand, Plaintiffs have withdrawn Counts Two and Three of their Second Amended Complaint.  At this time, only Counts One and Four remain for resolution by the Court.  All parties have filed cross-motions for summary judgment on the remaining counts, and the Court granted partial summary judgment for the Corps in a short order on May 1, 2012.  Order, ECF No. 156.  The rationale for that decision is set forth herein.  The remainder of the cross-motions were held in abeyance in order to conduct an evidentiary hearing, and this case is now ripe for decision.  For the reasons set forth below, the United States Cross-Motion for Summary Judgment (ECF No. 116) is GRANTED.  Intervenor-Defendant Highland Mining Company’s Motion for Summary Judgment (ECF No. 96) is GRANTED.  Plaintiffs’ Motion for Summary Judgment (ECF No. 94) is DENIED.  A separate judgment order will be entered along with this Memorandum Opinion and Order.