Thursday, May 16, 2013

Ohio Valley Environmental Coalition v. USACE

May 15: In the U.S. Court of Appeals, Fourth Circuit , Case No. 12-1999. Appealed from the United States District Court for the Southern District of West Virginia, at Huntington. The Appeals Court rejects a challenge from environmental groups regarding mountaintop mining.
    In connection with a proposed surface coal mine adjacent to Reylas Fork (a stream) in Logan County, West Virginia, the West Virginia Department of Environmental Protection (WVDEP) issued Highland Mining Company 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 § 401 of the Clean Water Act (CWA), concluding that the proposed mine would not cause or contribute to violations of the State's EPA-approved water quality standards, as well as a National Pollutant Discharge Elimination System (NPDES) permit under CWA § 402, finding that the proposed sediment pond for the mine would not have significant adverse effects. Finally, the U.S. Army Corps of Engineers (USACE, or Corps) issued a fill permit under CWA § 404, 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.
    Four environmental groups (collectively, the Environmental Coalition) commenced this action to challenge the fill permit issued under CWA § 404. The Environmental Coalition contends that the Corps, in conducting its analysis for the § 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. It also contends 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 district court evaluated the data considered by the Corps, the Corps' analysis, and the Corps' conclusions and found that the Corps did not misapprehend the baseline conditions in the relevant watershed. Ohio Valley Envtl. Coalition, Inc. v. U.S. Army Corps of Eng'rs (OVEC), 883 F. Supp. 2d 627, 642-44 (S.D. W. Va. 2012). It also found that the Corps analyzed a "wide array of evidence about water quality" to reach a reasoned decision that the individual and cumulative environmental impacts of the Corps' CWA § 404 permit would not rise to the level of significance required to trigger the need for an environmental impact statement. Id. at 645. As the district court concluded, "[t]he Corps has analyzed the cumulative impacts, 'articulated a satisfactory explanation for its conclusion,' and thus has not acted arbitrarily or capriciously." Id. (quoting Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177, 209 (4th Cir. 2009)).
    The Appeals Court observed, "The Corps devoted four years to the effort, meeting repeatedly with the parties to resolve concerns, prompting the district court to observe: "The administrative record documents the extensive interaction among the Corps, the EPA, the WVDEP and Highland to resolve the EPA's concerns. Though Highland and the WVDEP disputed the EPA's position on conductivity and cumulative water quality impacts of valley fills, the Corps focused on site specific factors which provide at least a rational basis for its decision." The Appeals Court said, "In response to the EPA's concerns, the Corps adopted measures agreeable to the EPA as conditions of its § 404 permit, involving reduction of the fill and post-permit monitoring and other mitigation requirements. These special conditions incorporated a series of best management practices designed to minimize increases in conductivity and total dissolved solids associated with the mining activities of Highland Mining."
    The Appeals Court concludes, "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'. . . Because the Corps' analysis satisfied NEPA's procedural requirements, the Corps' finding of cumulative insignificance is neither arbitrary nor capricious. . . Accordingly, we affirm the judgment of the district court."
    Access the complete opinion (click here). [#Energy/Coal, #CA4]
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