Full opinion text
MEMORANDUM OPINION AND ORDER CHAMBERS, District Judge. Plaintiffs brought this action seeking declaratory relief that the U.S. Army Corps of Engineers violated the Clean Water Act and the National Environmental Policy Act in issuing four permits to fill headwater streams in conjunction with mountaintop removal coal mining. Plaintiffs request injunctive relief to prevent the conduct authorized under these permits and seek judicial review of the agency’s decisions under the Administrative Procedure Act. For the reasons stated below, the Court GRANTS judgment in favor of Plaintiffs, RESCINDS the permits and decisions, ENJOINS Defendants and Intervenors from all activities authorized under those permits, and REMANDS the permits to the Corps for further proceedings consistent with this Memorandum Opinion and Order. L INTRODUCTION Coal mining has long been part of the fabric of Appalachian life, providing jobs to support workers and their families and energy to fuel the nation. Unfortunately, coal mining also exacts a toll on the natural environment. In particular, the mining technique at issue in these permits potentially results in dramatic environmental consequences. The Honorable Charles H. Haden II, after a firsthand examination of mountaintop removal mining sites in southern West Virginia, offered the following description: [Mjined sites were visible from miles away. The sites stood out among the natural wooded ridges as huge white plateaus, and the valley fills appeared as massive, artificially landscaped stair steps. Compared to the thick hardwoods of surrounding undisturbed hills, the mine sites appeared stark and barren and enormously different from the original topography. Bragg v. Robertson, 54 F.Supp.2d. 635, 646 (S.D.W.Va.1999) (issuing preliminary injunction upon finding irreparable harm). This lawsuit represents another challenge against the coal industry and governmental regulators over mountaintop removal coal mining. The controversy surrounding this method of coal mining has spawned numerous lawsuits by environmentalists against state and federal regulators involved in the approval and use of mountaintop removal mining in West Virginia and neighboring Appalachian states. The Honorable Paul V. Niemeyer, speaking for a panel of the Fourth Circuit, aptly described the backdrop for this controversy six years ago: Mountaintop-removal coal mining, while not new, only became widespread in West Virginia in the 1990s. Under this method, to reach horizontal seams of coal layered in mountains, the mountaintop rock above the seam is removed and placed in adjacent valleys; the coal is extracted; and the removed rock is then replaced in an effort to achieve the original contour of the mountain. But because rock taken from its natural state and broken up naturally “swells,” perhaps by as much as 15 to 25%, the excess rock not returned to the mountain — the “overburden” — remains in the valleys, creating “valley fills.” Many valley fills bury intermittent and perennial streams and drainage areas that are near the mountaintop. Over the years, the West Virginia Director of Environmental Protection (the “Director” or “State Director”), as well as the U.S. Army Corps of Engineers, has approved this method of coal mining in West Virginia. The disruption to the immediate environment created by mountaintop mining is considerable and has provoked sharp differences of opinion between environmentalists and industry players. Bragg v. West Virginia Coal Assoc., 248 F.3d 275, 286 (4th Cir.2001). In this matter, environmentalists have targeted the U.S. Army Corps of Engineers (“Corps”). Although the Corps has no direct regulatory authority with respect to mountaintop removal coal mining, it plays an indirect role through its control over a critical byproduct of mountaintop removal mining: valley fills, which entail burying streams when valleys are filled with overburden. Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq., vests authority in the Corps to issue permits for the disposal of fill material into the waters of the United States. Without such a permit, the discharge is prohibited, thus precluding the construction of valley fills necessary for mountaintop removal coal mining. II. PROCEDURAL BACKGROUND In this case, the Corps issued permits to five coal companies between July 2005 and August 2006 after reviewing the permit applications pursuant to Section 404 and the simultaneous analysis required under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321, et seq. As to each permit, the applicants provided a voluminous amount of material to the Corps to consider, much of which also was submitted to other regulatory authorities for their review under state and federal surface mining regulations and other environmental statutes. Though thousands of pages of consultants’ reports, application plan documents, correspondence, and comments by other agencies and interested persons have been compiled in the administrative records, the critical documents for each decision are remarkably similar, and often identical in key findings. These proceedings began shortly after the Corps issued the July 17, 2005 permit for the Camp Branch Surface Mine (“Camp Branch”). Ohio Valley Environmental Coalition (“OVEC”), Coal River Mountain Watch, and West Virginia Highlands Conservancy (“Plaintiffs”), grassroots organizations dedicated to the improvement and preservation of the environment, filed suit alleging the Corps, Lieutenant General Carl A. Strock, Commander and Chief of Engineers, and Colonel William E. Bulen, Commander, Huntington District (“Defendants”) acted arbitrarily and capriciously in violation of the Administrative Procedure Act (“APA”), 5 U.S.G. §§ 701-706, in issuing the permit contrary to the substantive and procedural provisions of both the CWA and NEPA. In November 2005, Plaintiffs amended their Complaint to challenge the August 23, 2005 permit issued for the Black Castle Contour Surface Mine (“Black Castle”). In January 2006, Aracoma Coal Company and Elk Run Coal Company, holders of the Camp Branch and Black Castle permits, respectively, intervened as defendants in this matter. Shortly thereafter, Plaintiffs again amended their Complaint to include the December 22, 2005 permit issued to Alex Energy, Inc. for the Republic No. 2 Surface Mine (“Republic No. 2”). Alex Energy, Inc. subsequently intervened. In addition, the West Virginia Coal Association, a trade association representing the vast majority of West Virginia’s underground and surface coal mine production companies, intervened in March 2006. The Corps issued a fourth permit on April 28, 2006, to Independence Coal Company for the Laxare East Surface Mine (“Laxare East”). Plaintiffs again contested the issued permit, which the Court consolidated with this proceeding. Independence Coal Company similarly intervened. In August 2006, Plaintiffs amended their Complaint for the third time to challenge a permit issued to Alex Energy, Inc. for the Republic No. 1 Surface Mine. The Republic No. 1 permit is not part of this trial, however, because it was not yet ripe having been issued on the eve of trial. In sum, Plaintiffs allege in their Third Supplemental Complaint that the Corps acted arbitrarily and capriciously in violation of the APA in issuing the permits for the Camp Branch, Black Castle, Republic No. 2, and Laxare East mine sites. Specifically, Plaintiffs claim the Corps violated NEPA by issuing the permits without first preparing an Environmental Impact Statement (“EIS”), failing to adequately assess the effects of Intervenors’ conduct, improperly limiting the scope of analysis, and ignoring relevant evidence regarding the cumulative effects of the permits on the environment. In addition, Plaintiffs argue Defendants failed to comply with the CWA and its governing regulations by improperly evaluating the structure and function of the streams impacted, failing to characterize the affected streams as riffle and pool complexes, ignoring relevant evidence relating to storm runoff and flooding, and relying on untested and questionable mitigation measures to offset the destroyed streams. In response, Defendants and Interve-nors counter that the Corps adhered to the required process for issuing the permits under the CWA and NEPA and did not act arbitrarily and capriciously in doing so. The Corps asserts that it adequately considered all relevant factors, including stream functions, the effects on the aquatic ecosystem, the existence of riffle and pool complexes, and the cumulative impacts of the permitted activities to the watersheds. Further, the Corps argues that it imposed appropriate compensatory mitigation conditions on the CWA permits of at least a 1:1 linear foot basis based upon its best professional judgment. This case originally was scheduled for trial in June 2006 as to the first four permits. However, on the eve of trial the Corps moved to stay the proceedings and sought voluntary remand of the permits to allow it to reconsider them. The Court granted the motion, but the stay was short-lived. The Corps reissued the permits a month later with a supplemented administrative record. Its decisions were altered, but the controversy with Plaintiffs was not resolved. The litigation resumed, and a six day bench trial was conducted as to the first four permits in October 2006. The parties were given leave to file post-hearing briefs, following which the Court heard oral argument. The matter is ripe for decision. III. STANDING Before considering the merits of Plaintiffs’ allegations, the Court must first address whether they have standing to bring their claims. Intervenors have challenged Plaintiffs’ standing to contest the Republic No. 2 permit, asserting that Plaintiffs have “manufactured” their injury solely for the purpose of establishing standing. If true, Plaintiffs’ claims are nonjusticiable and any judgment issued by the Court with respect to this permit would be tantamount to a constitutionally prohibited advisory opinion. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 100-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Standing has both constitutional and prudential components. Plaintiffs first must satisfy the constitutional standing requirements set forth by Article III of the United States Constitution, namely that Plaintiffs (1) “suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In addition, Plaintiffs must satisfy the prudential standing principles set forth by the Supreme Court that (1) their interests fall within the zone of interests protected by NEPA and the CWA and that (2) Plaintiffs meet the organizational standing exception to the rule against third party standing. Further, in seeking review of an agency decision under the APA, Plaintiffs also must satisfy its statutory requirements for standing. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). A. Injury in Fact In an environmental action such as this, the most significant obstacle for a plaintiff is establishing an injury in fact. Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir.2006) (“In environmental suits, the injury-in-fact inquiry tends to be more searching than the causation or redressability considerations.”). Injury to the environment is insufficient to satisfy Article III standing requirements; rather, the injury must be-to the plaintiffs themselves. Friends of the Earth, Inc., 528 U.S. at 181, 120 S.Ct. 693. “[Ejnviron-mental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Id. at 183, 120 S.Ct. 693 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)); see also Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir.2003). However, mere general averments and conclusory allegations are inadequate; Plaintiffs must show the challenged activity directly affects their recreational, aesthetic, and economic interests. Friends of the Earth, Inc., 528 U.S. at 183-84, 120 S.Ct. 693 (citing Nat’l Wildlife Fed’n, 497 U.S. at 888, 110 S.Ct. 3177). Plaintiffs have plainly demonstrated injury in fact through the testimony of one of its members, Vivian Stockman. Ms. Stockman testified that she frequently travels to southern West Virginia, including the location of the Republic No. 2 mine on the border of Kanawha and Fayette Counties, and intends to do so regularly in the future. She does so in order to take photographs and to observe aquatic wildlife within the streams. She further testified that she will not wade in streams located in areas impacted by mountaintop removal coal mining because of the presence of selenium and other chemicals used in the mining process. Based on this testimony, it is clear that Plaintiffs have alleged a direct aesthetic injury and not merely an abstract interest in ensuring the law is properly enforced. An injury to an aesthetic interest in observing wildlife is sufficient to satisfy the requirements of Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”); see also Ocean Advocates v. U.S. Army Corps ofEng’rs, 402 F.3d 846, 859-60 (9th Cir.2005) (finding standing based on risk of harm to environment that would impact plaintiffs’ ability to “study the ecological area, observe wildlife, and use [the area] for recreation”). Intervenors argue that Plaintiffs “manufactured” their purported injury for the sole purpose of establishing standing, relying on Mancuso v. Consol. Edison Co. of N.Y., Inc., 324 F.Supp.2d 469 (S.D.N.Y.2004), in support of this assertion. Their argument is unpersuasive as Mancuso is distinguishable from the matter at hand. In Mancuso, the plaintiff did not reside, own property, or recreate in, on, or near the affected area. Id. at 471. Instead, the plaintiff had visited the area in question solely to prepare for litigation by obtaining evidence and, as such, any aesthetic injury suffered by the plaintiff was nothing more than a byproduct of the lawsuit. Id. Conversely, in this case Ms. Stockman testified that she frequently visits southern West Virginia in pursuit of her interest in photography and to observe aquatic wildlife, thereby demonstrating her recreational use of the affected areas. Moreover, Mancuso involved environmental damage resulting from polychlorinated biphenyls (“PCBs”), which are colorless, odorless carcinogens that were virtually undetectable by the plaintiff. 342 F.Supp.2d at 471. The effects of mountaintop removal coal mining, on the other hand, are plainly evident to the casual observer and constitute a cognizable aesthetic injury to a recreational user of the area such as Ms. Stock-man. B.Causation Plaintiffs also satisfy the second prong of the standing inquiry, that the injury in fact be “fairly traceable” to Defendants’ alleged illegal conduct. Friends of the Earth, Inc., 528 U.S. at 180, 120 S.Ct. 693. The causation prong does not require Plaintiffs to “show to a scientific certainty that defendant ] ... caused the precise harm suffered by the plaintiffs.” Nat’l Res. Def. Council, Inc. v. Watkins, 954 F.2d 974, 980 n. 7 (4th Cir.1992) (quoting Pub. Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir.1990)). Rather, the causation requirement ensures a nexus between the injury and the defendant that is not based upon speculation or conjecture. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1152 (9th Cir.2000). Plaintiffs’ aesthetic injury directly results from Intervenors’ permitted conduct, which in turn results from the permits issued by Defendants. Without the Section 404 permits, Intervenors would be unable to bury streams with the overburden created through mountaintop removal coal mining, thus creating the required nexus between Defendants’ conduct and Plaintiffs’ alleged injury. C. Redressability Plaintiffs meet the final requirement for Article III standing as the relief sought will remedy Plaintiffs’ injury. A plaintiff satisfies the redressability test if it is likely “that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc., 528 U.S. at 181, 120 S.Ct. 693. Here, Plaintiffs request declaratory and injunctive relief requiring the Corps to rescind the issued permits and prepare an EIS analyzing alternatives to the proposed activity and the cumulative impacts of those activities. Clearly, rescinding the permits and enjoining further mining would alleviate Plaintiffs’ concerns. In addition, a plaintiff “asserting] inadequacy of a government agency’s environmental studies under NEPA need not show that further analysis by the government would result in a different conclusion,” only that the “decision could be influenced by the environmental considerations that NEPA requires an agency to study.” Hall v. Norton, 266 F.3d 969, 977 (9th Cir.2001). If the Corps had conducted an EIS and considered the cumulative impact of burying streams throughout the watershed of southern West Virginia as Plaintiffs requested, the decision to issue a Section 404 permit could have been influenced by these environmental considerations, thus satisfying this undemanding test. D. Organizational Standing A plaintiff ordinarily cannot assert the legal rights and interests of third parties. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The doctrine of organizational standing, however, is an exception to this prudential rule against third party standing. Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 342, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In order to assert a claim of one of its members, an organization must establish that (1) at least one of its members would have standing to sue in his own right; (2) the interests at issue are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of an individual member of the organization. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 155 (4th Cir.2000). Plaintiffs have satisfied this organizational standing requirement as well. At least one of OVEC’s members, Ms. Stockman, has standing to sue in her own right. The interest at issue, namely the burying of streams with the overburden from mountaintop removal coal mining, is certainly germane to OVEC’s purpose of improving and preserving the environment. Further, the participation of individual members of OVEC would be unnecessary and unhelpful in a determination of the issues and, if warranted, any appropriate relief. E. Zone of Interests Plaintiffs also meet the requirements for prudential standing because their injury is within the zone of interests protected by NEPA and the CWA. The zone of interest test is “not meant to be especially demanding.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). However, where the plaintiff itself is not the subject of the contested regulatory action, the zone of interest test “denies a right of review if the plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id. In applying the test, the Court first determines the interests protected by the statutory provision at issue and then ascertains whether the plaintiffs interests are among them. TAP Pharm. v. U.S. Dept. of Health & Human Servs., 163 F.3d 199, 202-03 (4th Cir.1998) (citing Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 494 n. 7, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998)). In this matter, Plaintiffs’ interests clearly satisfy the zone of interests test. Congress enacted NEPA in order to “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable unintended consequences.” 42 U.S.C. § 4331(b). Similarly, the CWA aims to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Plaintiffs claim aesthetic injuries from the effects of mountaintop removal coal mining and request an injunction to prevent burying more streams within the affected watersheds. Plaintiffs’ objectives unquestionably mirror Congress’ intent in enacting the CWA and NEPA. F. Statutory Standing Finally, Plaintiffs, in seeking judicial review of an agency action under the APA, also must satisfy the APA statutory requirements for standing. Nat’l Wildlife Fed’n, 497 U.S. at 882-83, 110 S.Ct. 3177. Plaintiffs’ request for review under the APA “must establish (1) that there has been final agency action adversely affecting the plaintiff, and (2) that, as a result, it suffers legal wrong or that its injury falls within the ‘zone of interests’ of the statutory provision the plaintiff claims was violated.” Citizens for Better Forestry v. U.S. Dept. of Agric., 341 F.3d 961, 976 (9th Cir.2003). Having already established that Plaintiffs assert claims within the zone of interests of the APA, the only question is whether a final agency action adversely affected Plaintiffs. Issuance of a permit to discharge fill material into waters of the United States constitutes a final agency action, which in turn adversely affected Plaintiffs by causing the injury in fact, thus providing Plaintiffs statutory standing. IV. STANDARD OF REVIEW A federal agency’s compliance with the CWA and NEPA is subject to review under the APA. 5 U.S.C. § 702. The APA requires a court to set aside an agency action, findings or conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of such review is narrow; the reviewing court looks only to see if there has been a “clear error of judgment.” Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 287 (4th Cir.1999) (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). An agency action will be set aside as arbitrary or capricious if the agency relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. at 287-88 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Insur., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Review of agency action under the arbitrary or capricious standard is highly deferential and presumes the validity of such action. Natural Res. Def. Council, Inc. v. EPA 16 F.3d 1395, 1400 (4th Cir.1993). Although the Court’s review must be “searching and careful,” it must not substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The APA extends such deference in order to “protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 66, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). This deferential standard of review in no way requires the Court to “rubber stamp” an agency action, however. On the contrary, the Court must “immerse” itself in the evidence in order to “determine whether the agency decision was rational and based on consideration of the relevant factors.” Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C.Cir.1976). The close scrutiny of the evidence is intended to educate the court. It must understand 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 open to the agency and those made. The more technical the case, the more intensive must be the court’s effort to understand the evidence .... But that function must be performed with conscientious awareness of its limited nature. The enforced education into the intricacies of the problem before the agency is not designed to enable the court to become a superagen-cy that can supplant the agency’s expert decision-maker. To the contrary, the court must give due deference to the agency’s ability to rely on its own developed expertise. Id. This inquiry requires the Court to consider not only the final documents prepared by the agency, but also the entire administrative record. 5 U.S.C. § 706; Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir.2002). Further, though the Court ordinarily is restricted to the confines of the administrative record, it may, when necessary, consider evidence outside the record to determine whether the agency has considered all relevant factors or to explain technical terms or complex subject matter. In sum, the role of the Court is not to make the ultimate decision, but only to determine whether the agency took a “ ‘hard look’ at all relevant factors.” Coal. for Responsible Reg’l Dev. v. Coleman, 555 F.2d 398, 400 (4th Cir.1977) (citation omitted). “What constitutes a ‘hard look’ cannot be outlined with rule-like precision. At the least, however, it encompasses a thorough investigation into the environmental impacts of an agency’s action and a candid acknowledgment of the risks that those impacts entail.” Nat’l Audubon Soc. v. Dept, of the Navy, 422 F.3d 174, 185 (4th Cir.2005). That inquiry is necessarily case-specific, and the Court must examine all of the components of an agency’s analysis to determine, on the whole, whether the agency has conducted the required “hard look.” Id. at 186. In reviewing an agency action under NEPA, the Court must make a “searching and careful” inquiry into the record to determine whether the agency’s “decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” City of Alexandria v. Fed. Highway Admin., 756 F.2d 1014, 1017 (4th Cir.1985) (citing Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814). The Court is limited in performing its inquiry to only those grounds upon which the agency based its decision and cannot affirm the decision by applying different reasons or legal standards that the agency did not adopt. SEC v. Chen- ery, 318 U.S. 80, 94-95, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (“[A]n administrative [action] cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.”). Further, no deference to an agency’s action is required if the agency failed to follow its own promulgated regulations. “The failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct.” Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986). If an agency fails to scrupulously observe the rules, regulations, or procedures which it has established, the Court is required to overturn its actions. Id.; U.S. v. Heffner, 420 F.2d 809, 811 (4th Cir.1969). In contrast, the CWA provides for a “more intrusive power of review” to prohibit agency action whenever a project will have a significant adverse impact on the environment. Sierra Club v. U.S. Army Corps of Eng’rs, 772 F.2d 1043, 1051 (2d Cir.1985). Therefore, when the Corps approves a project that the reviewing court finds will have a significant adverse impact, that approval violates the CWA and cannot stand. Id. Two federal acts control the Corps’ responsibilities in this matter: the Clean Water Act and the National Environmental Policy Act. Plaintiffs raise claims under each. Therefore, the provisions of each Act are the beginning point for the Court’s analysis of Plaintiffs’ claims. A. Clean Water Act Congress enacted the Federal Water Pollution Control Amendments of 1972, commonly known as the Clean Water Act, to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In accordance with this mandate, the CWA prohibits the discharge of any pollutants into navigable waters of the United States unless authorized by a permit. 33 U.S.C. § 1311. The Army Corps of Engineers oversees the Section 404 permit process and may issue either general permits or individual permits for a specific disposal site. 33 U.S.C. § 1344. Section 404 permits must be issued in accordance with guidelines (“404(b)(1) Guidelines”) promulgated by the Environmental Protection Agency (“EPA”), 33 U.S.C. § 1344(b)(1), which the Corps has incorporated into its own regulations. See, e.g., 33 C.F.R. §§ 320.4(b)(4), 325.2(a)(6). The underlying intent behind the 404(b)(1) Guidelines is that dredged or fill material should not be discharged if it will result in an unacceptable adverse impact on the aquatic ecosystem. 40 C.F.R. § 230.1(c). In considering the potential adverse impact of a proposed discharge, the Corps must determine in writing the short-term and long-term effects of the discharge on the “physical, chemical, and biological components of the aquatic environment.” 40 C.F.R. § 230.11. Specifically, the Corps must consider the nature and degree of effect the proposed discharge will have on (1) the physical substrate of the proposed disposal site; (2) water circulation, fluctuation, and salinity; (3) suspended particulate/turbidity in the vicinity of the disposal site; (4) the introduction, relocation or addition of contaminants in the aquatic environment; and (5) the structure and function of the aquatic ecosystem and organisms. 40 C.F.R. § 230.11(a)-(e). The Corps must assess both the cumulative impact resulting from individual discharges of dredged or fill material as well as any secondary effects associated with the discharge but not directly resulting from it. 40 C.F.R. § 230.11(g)-(h). No permit shall be issued if (1) there is a practicable alternative to the proposed discharge which results in a less adverse impact on the aquatic ecosystem and where the alternative does not itself result in significant adverse consequences; (2) the proposed discharge will cause or contribute to significant degradation to the waters of the United States; or (3) potential adverse impacts to the aquatic ecosystems are not minimized through appropriate and practicable steps. 40 C.F.R. § 230.10. Alternatives to the proposed discharge include discharge of the dredged or fill material at another location or activities involving no discharge at all. 40 C.F.R. § 230.10(a)(l)-(2). In determining whether a proposed discharge individually or collectively contributes to the significant degradation of the waters of the United States, the Corps must assess any adverse effect of the discharge on (1) human health or welfare including municipal water supplies, fish, and wildlife; (2) life stages of aquatic life and other wildlife dependent on the aquatic ecosystem; (3) aquatic ecosystem diversity, productivity, and stability; and (4) recreational, aesthetic, and economic values. 40 C.F.R. § 230.10(c)(l)-(4). Potentially adverse impacts may be minimized by requiring on-site or off-site mitigation as a condition of the permit. 33 C.F.R. §§ 320.4(r)(l), 325.4(a)(3). Such mitigation must be directly related to the impacts of the proposal and designed to avoid, reduce, or compensate for those resource losses which have been identified and are reasonably likely to occur. 40 C.F.R. § 320.4(r)(l)-(2). B. National Environmental Policy Act In 1970, Congress enacted NEPA to serve as “our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a) (2006). NEPA is designed to “promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321. Specifically, NEPA sets forth “action-forcing” procedural requirements to ensure federal agencies act in furtherance of this goal. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). First, NEPA requires that an agency take “a ‘hard look’ at environmental consequences” before taking any action that may affect the environment. Id. at 350, 109 S.Ct. 1835. Second, NEPA provides for broad dissemination of relevant environmental information for public comment so that the general public may be an active participant in the decisionmaking process. Id. at 349-50, 109 S.Ct. 1835; Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.1996). At base, NEPA is a procedural statute intended to prevent uninformed agency action. Robertson, 490 U.S. at 351, 109 S.Ct. 1835. It does not require substantive, environmentally friendly results, merely that adverse environmental effects of a proposed action are identified and evaluated. Id. at 350-51, 109 S.Ct. 1835. An agency action resulting in harmful environmental effects will not be overturned where the agency has considered the environmental impact of that action and then determined that other benefits outweigh them. Id. at 350, 109 S.Ct. 1835. Pursuant to § 102 of NEPA, a federal agency, to the fullest extent possible, must prepare a detailed EIS for actions which “significantly affect[] the quality of the human environment.” 42 U.S.C. § 4332(2)(C). In order to assist federal agencies in this process, Congress established the Council on Environmental Quality (“CEQ”) to oversee the implementation of the environmental impact assessment process and ensure federal agencies fulfill their obligations under NEPA. The CEQ has promulgated extensive regulations in furtherance of this mandate. 40 C.F.R. § 1500.3. Under the CEQ regulations, agencies must consider both the “context” and the “intensity” of a proposed action to determine if the action “significantly” affects the environment sufficient to require an EIS. 40 C.F.R. § 1508.27. “Context” focuses the scope of the analysis to the affected geographic region and interests, 40 C.F.R. § 1508.27(a), whereas “intensity” looks to the severity of the environmental impact upon that region and interests. 40 C.F.R. § 1508.27(b). Impacts that alone appear insignificant may become significant when cumulatively grouped together. 40 C.F.R. § 1508.27(b)(7). An agency may not avoid issuing an EIS by separating a significant action into small insignificant component parts. 40 C.F.R. § 1508.27(b)(7). Not all actions “significantly” affect the environment, however, and where it is unclear, an agency must complete an environmental assessment (“EA”) to determine whether an EIS is required. 40 C.F.R. § 1501.4. The EA serves as “a concise public document” containing the evidence and analysis of the agency and its determination whether an EIS is required. 40 C.F.R. § 1508.9(a). At the heart of an EIS is the requirement to explore and evaluate reasonable alternatives to the proposed action. For no matter how thorough, an EA can never serve as a substitute for the preparation of an EIS if the proposed action could significantly affect the environment. An EA simply determines whether there will be a significant impact on the environment whereas an EIS, in contrast, weighs any significant negative impacts of the action against the positive objectives of the project. Anderson v. Evans, 371 F.3d 475, 494 (9th Cir.2004). An EIS serves to balance the negative environmental consequences against the project’s objectives, so that officials are adequately informed about the environmental effects before deciding whether to approve a project. Sierra Club v. Marsh, 769 F.2d 868, 875 (1st Cir.1985). If the agency concludes that its action will not have a significant effect on the environment, it must issue a finding of no significant impact (“FONSI”) containing the basis for its decision. 40 C.F.R. § 1508.13. However, even where the action will result in a significant effect on the environment, the agency may forego issuing an EIS through a mitigated FONSI. Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1121 (9th Cir.2000). If the agency or an involved third party “employ certain mitigation measures that will lower the otherwise significant impacts of an activity on the environment to a level of insignificance!],] ... a FONSI could be issued for an activity that otherwise would require the preparation of a full-blown EIS.” Spiller v. White, 352 F.3d 235, 241 (5th Cir.2003); see also Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 62 (4th Cir.1991) (“If a mitigation condition eliminates all significant environmental effects, no EIS is required.”). Y. DISCUSSION As to each permit, the applicants submitted dozens of technical, complex reports to the Corps in order to satisfy the detailed review required under the CWA and NEPA. The accumulated administrative record for each permit is extensive, comprised of thousands of pages and filling multiple binders. However, “girth is not a measure of the analytical soundness of an environmental assessment.” Anderson, 371 F.3d at 494. The Corps’ staff clearly devoted substantial time and effort reviewing and considering the applications. At the Corps’ insistence, the applicants have revised their projects, at least in part to reduce environmental concerns. The process has been a long one, and the task a substantial challenge for the Corps’ staff and the applicants. The staff obviously took the Corps’ responsibilities seriously and endeavored to produce decisions that tracked the standards set in the statutes and regulations which the Corps is duty-bound to apply. Even so, it is not the amount of the Corps’ effort that is at issue here; rather, what matters is whether the results meet the proper standards. For the reasons which follow, the Court finds that the Corps has not met its obligations under the CWA and NEPA. The Court’s criticisms arise more from the practices and fundamental assumptions used by the Corps than from the expertise or diligence of the staff. A. The Probable Impacts of the Valley Fills will be Significant and Adverse The initial step in the Corps’ review under the CWA and NEPA is to determine the potential environmental impacts of the proposed activity. The Corps is required under both regulatory schemes to examine how, and to what extent, the proposed project will affect the environment. Unless the effects of the activity are properly identified, the agency has not met its legal obligation and any proposed mitigation measures dependant upon an incomplete environmental impact analysis necessarily fail. Nat’l Audubon Soc., 422 F.3d at 185 (citing Robertson, 490 U.S. at 350-51, 109 S.Ct. 1835 (stating that NEPA requires agencies to adequately identify and evaluate the environmental costs of a proposed action)). Although the statutes impose overlapping responsibilities on an agency, the scope of the NEPA analysis extends beyond that required by the CWA. For instance, NEPA characterizes environmental impacts more broadly than the CWA, to include not only ecological effects such as impacts to physical, chemical, and biological components of the aquatic ecosystem, but also aesthetic, historic, cultural, economic, and social effects. 40 C.F.R. §§ 230.10-11, 1508.8. In addition, NEPA requires an agency to consider both the direct effects caused by an action and any indirect effects which are reasonably foreseeable. 40 C.F.R. § 1508.8. In this context, analyzing the direct and indirect effects of a proposed discharge potentially includes effects to the environment outside the aquatic ecosystem. By contrast, the CWA only calls for a determination of potential effects to the aquatic ecosystem itself. 1. Adverse Impacts Under the Clean Water Act The 404(b)(1) Guidelines prohibit discharges which result in significant degradation to waters of the United States. 40 C.F.R. § 230.10(c). Waters of the United States include waters used in interstate commerce, lakes, rivers, streams, including intermittent streams, tributaries, and the wetlands adjacent to these waters. 40 C.F.R. § 230.3(s). A discharge is deemed to contribute to significant degradation if it results, either individually or collectively, in significant adverse effects on the human health or welfare; the life stages of aquatic life and other wildlife dependent on aquatic ecosystems; or the diversity, productivity, and stability of the aquatic ecosystem, including, but not limited to, “loss of fish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients, purify water, or reduce wave energy.” 40 C.F.R. § 230.10(c)(l)-(3). Further, no discharge is permitted unless “appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.” 40 C.F.R. § 230.10(d). The 404(b)(1) Guidelines require the Corps to make certain factual determinations before it may decide whether to issue a permit. In order to evaluate the proposed discharge of dredged or fill material, the Corps must assess the short-term and long-term effects of the discharge on the (1) physical substrate; (2) water circulation, fluctuation, and salinity; (3) changes in the kinds and concentrations of suspended particulate/turbidity in the vicinity of the disposal site; (4) introduction, relocation, or increase in contaminants; and (5) structure and function of the aquatic ecosystem. 40 C.F.R. § 230.11. The Corps, in analyzing effects on the aquatic ecosystems and organisms, must consider 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 [and][p]ossible loss of environmental values.” 40 C.F.R. § 230.11(e). This determination of individual impacts is then used to ascertain the cumulative impacts to the aquatic ecosystem, or the collective changes in the aquatic ecosystem attributable to the discharge. 40 C.F.R. § 230.11(g)(1). Individual discharges may be considered minor by themselves, but by determining the cumulative impact of such piecemeal changes, the Corps can discern whether a significant impairment of water resources, productivity, and water quality will result. Id. 2. Significant Impacts Under NEPA NEPA requires every federal agency recommendation or proposal for actions “significantly affecting the quality of the human environment” to include a detailed statement describing the environmental impact of the action, any adverse and unavoidable environmental effects of the action, and any alternatives to the action. 42 U.S.C. § 4332(2)(C). Therefore, as a threshold issue under NEPA, the agency must determine whether the effects of the activity are significant. Significance, as defined by NEPA, requires the agency to consider both the context of the action and the intensity, or severity, of the activity. 40 C.F.R. § 1508.27. In evaluating the intensity of an activity, the agency must consider (1) impacts that may be both beneficial and adverse; (2) the degree to which the action affects public health or safety; (3) any unique characteristics of the geographic area; (4) whether the effects on the human environment will be highly controversial; (5) whether the effects on the environment are uncertain or involve unknown risks; (6) whether the action, in conjunction with individually insignificant impacts, results in cumulative impacts that are significant; (7) whether the action adversely affects historic sites, structures, or objects or may result in loss or destruction of scientific, cultural, or historical resources; and (8) whether the action will adversely affect an endangered species or its habitat. Id. 3. The Corps’ Determination of Impacts The Corps produced a Combined Decision Document (“CDD”) for each permit, comprising both its 404(b)(1) Guideline and NEPA analyses. Each CDD, in granting the CWA permit under the 404(b)(1) Guideline review and issuing a FONSI under the NEPA review, discusses the impacts and treats them similarly, and so will the Court in addressing Plaintiffs’ challenges to the Corps’ decisions. To the extent the analysis includes non-aquatic impacts, that analysis falls largely under the purview of NEPA, not the CWA. The Corps’ decision to issue these permits will allow the applicants to bury miles of streams and fill their valleys with excess spoil material produced by mountaintop removal mining. The Corps candidly acknowledges in the CDDs that these valley fills will permanently bury the streams along with their riparian areas, permanently alter the normal water flow within the area under the fill, and destroy or disrupt the living organisms and their habitats within the valley. Each decision reports the length of the streams to be filled. For example, the Laxare East permit allows the permanent filling of 24,860 linear feet of intermittent and ephemeral streams in order to construct the seven valley fills within the Laurel Creek and Drawdy Creek watersheds. CDD for Laxare East Surface Mine Application (“Laxare East CDD ”), 14, 44 (July 18, 2006). These seven fills will hold 73.9 million cubic yards of overburden material, with each fill draining between 108 acres to 229 acres. Id. at 14-15, 36. Construction of these fills will require the permanent filling of 9,367 linear feet of intermittent and 15,493 linear feet of ephemeral streams. The project also calls for the construction of ten sediment ponds, which will temporarily impact 935 linear feet of intermittent streams and 2,164 linear feet of ephemeral streams. In total, 27,959 linear feet of intermittent and ephemeral streams will be impacted, 24,860 permanently. Biological samples collected at different stations within the streams revealed a large number and healthy variety of aquatic organisms. Id. at 16. Similarly, the Black Castle permit calls for nine valley fills and six sediment ponds within the Mudlick Fork, Laurel Creek, and Sandlick Creek watersheds. CDD for Black Castle Contour Surface Mine Application (“Black Castle CDD ”), 3, 5 (July 18, 2006). The nine valley fills will contain approximately 2.57 million cubic yards of overburden material, draining watersheds ranging from 41 to 180 acres. Id. at 3, 9, 44. The Corps authorizes the permanent filling of 12,851 linear feet of intermittent streams and 2,786 linear feet of ephemeral streams in order to construct the nine valley fills. Id. at 3. Four sediment ponds will be constructed, temporarily impacting 879 linear feet of intermittent streams. In sum, 16,516 linear feet of intermittent and ephemeral streams will be impacted, 15,-637 permanently filled. Prior mining within these watersheds have left their toll, and Laurel Creek and Sandlick Creek have not met state water quality standards for years. Id. at 28-29, 49. The Camp Branch permit authorizes the construction of four valley fills and four sediment ponds within the Camp Branch watershed in order to account for the approximately 59.7 million cubic yards of overburden. CDD for Camp Branch Surface Mine Application (“Camp Branch CDD ”), 1, 3, 9 (July 6, 2006). The permit allows for the permanent filling of 14,762 linear feet of intermittent streams and 297 linear feet of ephemeral streams, with the fills draining watersheds ranging from 89 to 367 acres. Id. at 3, 25-26. The four sediment ponds required by the project will temporarily impact 455 linear feet of intermittent streams. Like the Black Castle area, the land adjacent to the watersheds has experienced past and current mining, as well as other land disturbance. In contrast to Black Castle, most of these areas exhibited good physical and chemical water quality and good fish habitat and cover. Id. at 12, 27. The Republic No. 2 permit allows for the construction of three valley fills and three sediment ponds within the Upper Cabin Creek watershed to account for the 54 million cubic yards of overburden. Republic No. 2 CDD, at 4, 7-8, 21. Construction of the three valley fills will permanently impact 6,819 linear feet of intermittent streams and 3,099 linear feet of ephemeral streams. Id. at 7. In turn, the three sediment ponds will temporarily impact 690 linear feet of intermittent streams. Id. Water quality within the affected streams ranges from poor to good as a result of prior mining, with the better quality water located near the toe of existing fills and becoming poorer farther downstream. Id. at 16, 32. The Corps does not dispute that these impacts, standing alone, would require a finding that the proposed discharges violate the CWA and mandate a full EIS under NEPA. See, e.g., Black Castle CDD, at 87. However, the Corps defends its approvals by relying on mitigation to offset these impacts, thereby rendering the effects not significant. Before the Court may evaluate whether the mitigation plans offset the impacts, the Court first must consider whether the Corps has met its duty to properly assess the impacts. i. Structure and Function of Aquatic Resources The 404(b)(1) Guidelines require the Corps to assess the effects of the discharge on the “structure and function” of the aquatic ecosystem. 40 C.F.R. § 230.11(e). The regulations do not expressly define “structure and function,” but clearly the Corps must consider, at minimum, “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,” as well as possible loss of environmental values. 40 C.F.R. § 230.11(e). Plaintiffs contend that the phrase “structure and function” has a generally accepted meaning within the scientific community in the context of stream resources. As a result, Plaintiffs interpret the 404(b)(1) Guidelines to require the Corps to perform a thorough, quantitative evaluation of the projects’ impacts on the aquatic resources to be destroyed by the valley fills. Based on this interpretation, Plaintiffs believe the Corps failed to properly evaluate the functions of the streams being destroyed and, consequently, inadequately identified the impact of their loss and the corresponding mitigation measures. In support, Plaintiffs offered extensive comments and reports — which are contained within the administrative record — from scientific experts, who also testified before the Court during the six day trial. In their reports and testimony, Plaintiffs’ experts described a number of stream characteristics and processes considered by the scientific community to represent the “structure and function” of aquatic resources. According to Plaintiffs’ experts, one-time measurements of an existing condition, such as benthic macroinverteb-rate sampling or habitat assessment, evaluate only the “structure” of an aquatic ecosystem, simply offering snapshots of the stream’s condition that day. As a result, taking measurements or observations of stream “structure,” though useful information, is incomplete to understanding fully the impacts resulting from the destruction of these streams. In order to assess fully the environmental impacts, Plaintiffs contend important stream “functions” also must be considered. “Functions,” as defined by Plaintiffs’ experts, refer to the processes or services provided by the stream to the ecosystem. Functions occur over space and time and are measured by a rate, thus providing a more complete understanding of the stream’s role and value as an aquatic resource. At trial, Dr. Palmer explained functions by reference to a chart she prepared listing several, though not all, stream functions scientists agree are typical of streams. (Tr. vol. II, 138-41; In-tervenors’ Ex. 7.) For example, one such function is nutrient processing, in which streams process nutrients (such as nitrogen and phosphorus) and remove contaminants (such as toxic metals or sediment) that otherwise would accumulate and make streams unsuitable for drinking and for sustaining aquatic life. Another such function involves the decomposition of organic matter, which prevents the buildup of organic waste that affects oxygen levels and energy sources downstream. In her testimony, Dr. Palmer offered a useful analogy to illustrate the distinction between structures and functions, explaining that structures are similar to the physical attributes of a person, such as height and weight, whereas functions are akin to blood pressure and heart rate. Although both are important, functions better reflect the overall health and role of the stream as an aquatic resource. Plaintiffs advocate the actual measurement over time to establish the rate of these functions, arguing that both the 404(b)(1) Guidelines as well as the consensus of the scientific community require such a quantitative assessment. Plaintiffs believe these measurements can be conducted inexpensively and would not unduly delay the review, particularly in light of the considerable period of time necessarily transpiring during the permit review. For instance, processes such as nutrient processing or decomposition of detritus may be measured periodically over a matter of weeks or months and do not require significant costs or expertise. For the most part, Plaintiffs, applicants, and the Corps agree on the list of “functions” supplied by a stream. That list includes: (1) treatment of pollutants; (2) nutrient cycling; (3) temperature control; (4) maintenance of genetic diversity; (5) dynamic stability; (6) movement of water and sediment; and (7) water and organic matter retention. See, e.g., Laxare East CDD, at 42; CMP for Laxare East Surface Mine (“Laxare East CMP”), 25-26 (Nov. 23, 2005). The parties diverge, however, over whether or how these functions should be measured as part of the Corps’ review. Plaintiffs contend that the Corps must measure the functions of the affected waterways, whereas the Corps believes it may rely upon one-time, structural measurements to determine the effects to a stream. The Corps counters that Plaintiffs’ view of a quantitative functional analysis of impacted streams is not required under the 404(b)(1) Guidelines. Instead, the Corps asserts that determining the proper method of evaluating stream functions is a matter best left to the agency’s discretion and that the CDDs and supporting documentation within the administrative record adequately assess the functions of the aquatic ecosystems based upon its best professional judgment. The Corps and Intervenors argue that because “structure and function” is undefined within the 404(b)(1) Guidelines, the Corps may exercise its expertise to determine what “structure and function” means and how to evaluate it. According to the Corps’ and Intervenors’ experts, the “structure” factors reported by the applicants and discussed by the Corps within the CDDs provide sufficient information to serve as surrogates for functional characteristics and meet regulatory requirements. With no express regulatory definition, the Corps relies upon its 1990 Memorandum of Agreement with the EPA for clarification of what is required when analyzing the structure and function of an ecosystem. Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency: The Determination of Mitigation Under the Clean Water Act Section Wlp(b)(l) Guidelines (“MOA”), 55 Fed.Reg. 9210 (Mar. 12, 1990). The MOA sets forth the policies and procedures to be used in determining the type of mitigation necessary to comply with the CWA, which depends upon the “values and functions of the aquatic resource that will be impacted.” Id. at 9211. In particular, the MOA directs the Corps, in evaluating compensatory mitigation, to consider the “functional values lost by the resource to be impacted.” Id. at 9212. In order to achieve the goals of the CWA the Corps will strive to avoid adverse impacts and offset unavoidable adverse impacts to existing aquatic resources. Measures which can accomplish this can be identified only through resource assessments tailored to the site performed by qualified professionals because ecological characteristics of each aquatic site are unique. Functional values should be assessed by 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. Id. The Corps also relies upon its Regulatory Guidance Letter addressing its compensatory mitigation policies issued on December 24, 2002, for additional clarification regarding aquatic functions. U.S. Army Corps of Engineers Regulator Guidance Letter {“RGL ”), No. 02-2 (Dec. 24, 2002). In identifying the unique environmental losses resulting from authorized activities, the RGL encourages Corps’ district offices to employ a “functional assessment by qualified professionals to determine impacts.” Id. at 2. The RGL further recommends districts conducting functional assessments determine “functional scores using aquatic site assessment techniques generally accepted by experts ... or the best professional judgment” of federal and state agency representatives, while “fully considering ecological functions included in the 404(b)(1) Guidelines.” Id. at 2. For those projects anticipated to adversely impact streams, the RGL directs the Corps “to replace the stream functions where [a] sufficient functional assessment is feasible” or otherwise replace streams by linear foot on a 1:1 basis. Id. at 3. At trial, the Corps acknowledged that it has no functional assessment standard currently available for use in the Appalachian coalfields, and therefore, it relies upon the best professional judgment of its staff to assess aquatic values — in this case, by the structure measurements submitted by the applicants. The Corps notes, however, that it is in the early stage of developing a functional assessment methodology for the Huntington District and, once available, plans to use a functional assessment to gage the success of mitigation. Dr. Mark Sudol, Chief of the Corps’ Regulatory Program, pointed to a lack of funding as the primary impediment to developing and implementing a true functional assessment for this district. In the meantime, the Corps has continued to review and issue permits that will allow mining and valley fills that permanently destroy significant stretches of headwater streams. However, this unfortunate circumstance by itself does not dictate a finding that the Corps violated its duty to evaluate the structure and function of the resources. The Corps asserts that it has complied with the MOA and RGL and, therefore, the regulations by requiring mitigation measures of, at minimum, a 1:1 basis. That is, in the Corps’ view, so long as at least an equal length of stream mitigation occurs for the length of streams destroyed, the 1:1