Notice & Comment

Fourth Circuit Affirms Corp of Engineers Decision to Issue Mining Permit, by Katherine Kennedy

On May 15, 2013, Judge Niemeyer of the United States Court of Appeals for the Fourth Circuit affirmed a district court ruling in favor of the U.S Army Corps of Engineers (the Corps) decision to issue a mining permit.  Ohio Valley Envtl. Coalition, Inc. v. U.S. Army Corps of Engineers, 12-1999, 2013 WL 1987234 (4th Cir. 2013). Four environmental groups brought suit to challenge a fill permit issued under Section 404 of the Clean Water Act (CWA). The groups felt that the Corps, in conducting its analysis for the Section 404 permit, “materially misapprehended” the baseline conditions in the relevant watershed, thus corrupting its analysis of the cumulative impact that the mine would have on the streams in the watershed. The groups brought this challenge under the National Environmental Policy Act and Administrative Procedure Act alleging that the Corps acted arbitrarily and capriciously in determining that the valley fill would not have a significant cumulative impact on the water quality in the relevant watershed.

The suit was centered on a proposed surface coal mine adjacent to Reylas Fork (a stream) in Logan County, West Virginia. The Highland Mining Company received a number of permits to allow the project to move forward.  The West Virginia Department of Environmental Protection (WVDEP) issued a permit under the Surface Mining Control and Reclamation Act (SMCRA) to do the mining, finding that the proposed mine would not cause material damage to the hydrologic regime. The WVDEP also issued a water quality certification under Section 401 of the CWA, concluding that the proposed mine would not cause or contribute to violations of the State’s EPA-approved water quality standards. Further, the WVDEP issued a National Pollutant Discharge Elimination System (NPDES) permit under Section 402 of the CWA, finding that the proposed sediment pond for the mine would not have significant adverse effects. The Corps also issued a fill permit under Section 404 of the CWA, authorizing Highland Mining to place rock overburden into the adjacent valley of Reylas Fork as part of the mining process. The Corps issued the permit without an environmental impact statement, finding that the fill would not have a substantial cumulative impact on the water quality in the relevant watershed.

Under guidelines issued by the EPA, the Corps could issue a Section 404 permit only after concluding that the mining activity would not cause or contribute to violations of the State’s water-quality standards or to the significant degradation of waters of the United States. During notice and comment, the EPA warned that “the direct and cumulative impacts from this and future mines will be persistent and permanent and cannot be sufficiently or effectively compensated through the proposed mitigation.” After receiving EPA’s comments, Highland Mining requested that the Corps stay its consideration of the permit application until Highland Mining had an opportunity to allay the EPA’s concerns. Thereafter, the Corps, the EPA, and Highland Mining consulted each other and agreed to modifications to the conditions of the permit. After the Corps released its Combined Decision Document and Section 404 permit, environmental groups brought suit to challenge the permit and decisions supporting the permit.

The Circuit Court held that the Corps did not misapprehend the baseline conditions for the permit. After lengthy discussion of the Corps’ data and analysis, the court reasoned that the cumulative analysis  considered data not only from the impact area, but also from other tributaries and that the Corps considered the relevant factors, evaluating both the impact site and the entire watershed. Only after this evaluation did the Corps reach its informed judgment as to the baseline conditions.

For its second argument, the Environmental Coalition challenged the Corps’ finding that the cumulative insignificance was “arbitrary and capricious.” The environmental groups felt that this was because the Corps irrationally dismissed the strong correlation between surface coal mining activities and downstream biological impairment. Under the Coalition’s reading of the Combined Decision Document, the Corps failed to take a “hard look” at potential environmental consequences because the Document is “not supported by any reasoned analysis of, or expert opinion about, the science on conductivity and stream impairment.”

The court also held against the environmental groups on this challenge. The court was persuaded by the measures the Corps adopted as conditions of its Section 404 permit. These special conditions incorporated a series of best management practices designed to minimize increases in conductivity and total dissolved solids associated with the Highland Mining’s mining activities. The conditions also required that if the monitoring showed that the mining activities were resulting in adverse impacts to water quality, Highland Mining would be required to initiate remedial actions, provide additional water quality-based mitigation under the terms of the permit, or both. Since all of these conditions were incorporated as conditions of the Section 404 permit, the court held that the Corps’ finding to continue the project was not arbitrary and capricious. The court found that this process was significant and since it resulted in a two-year delay of the issuance of the Section 404 permit, the decision was not arbitrary and capricious.

The court also held that the Corps did take a hard look at the Environmental Coalition’s concerns. Specifically, the Coalition stated that the Corps failed to take a hard look at conductivity and stream impairment. However, the court held that the record amply shows that the Corps grappled with the issue extensively, rationally finding that (1) the connection between conductivity and stream impairment was not strong enough to preclude a permit and (2) the compromise measures agreed to by the EPA and Highland Mining would successfully mitigate the potential for adverse effects.

The court stated in dicta that the disagreement between the Coalition and the Corps can be reduced to no more than a substantive disagreement. The court notes that it is limited, and we may not “use review of an agency’s environmental analysis as a guise for second-guessing substantive decisions committed to the discretion of the agency.” Thus, the court held that the Corps’ predictive judgment in this case was based on facts and recommendations, adduced during a lengthy consultation between the Corps, Highland Mining, the EPA, and the WVDEP, and we conclude that this process satisfies NEPA’s procedural requirement to take a “hard look.”

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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