Environmental – CWA Permit Challenged on Public-Health Studies

Ohio Valley Environmental Coalition Inc. v. U.S. Army Corps of Engineers (Lawyers Weekly No. 001-122-16, 19 pp.) (Duncan, J.) No. 14-2129, July 8, 2016; USDC at Charleston, W.Va. (Copenhaver, J.) 4th Cir.

Holding: The 4th Circuit upholds a district court decision that defendant Army Corps of Engineers properly determined that the connection between surface coal mining and public health was not within the scope of the Corps’ environmental review; this challenge by plaintiff environmental groups to issuance of a Clean Water Act permit to discharge fill materials is “materially indistinguishable” from our precedent in Ohio Valley Env. Coalition v. Aracoma Coal Co.

In order to extract 6.8 million tons of steam grade bituminous coal from a 724-acre area at the Boone North mine in West Virginia, Raven Crest Contracting LLC obtained permits under each of four federal regulatory provisions: the Surface Mining Control & Reclamation Act of 1977, 30 U.S.C. § 1201 et seq.; and sections 401, 402 and 404 of the Clean Water Act, 33 U.S.C. §§ 1341, 1342 and § 1344. Here, we focus particularly on the § 404 permit, the specific permit plaintiff Ohio Valley Environmental Coalition Inc. has challenged in this case.

OVEC argues that the Corps violated NEPA by failing to include in its Environmental Assessment (EA) any analysis of the studies OVEC cited as suggesting a connection between surface coal mining and adverse public health effects in nearby communities. The Corps responds that OVEC’s argument is foreclosed by our precedent in Aracoma, 556 F.3d 177 (4th Cir. 2009), and we agree.

OVEC, which was also the plaintiff in Aracoma, argued there that the Corps should have considered all environmental impacts caused by fills during its permit review process. In the case of the valley fills in Aracoma, we held that the specific activity authorized by the § 404 permit was nothing more than the filling of jurisdictional waters for the purpose of creating an underdrain system for the larger valley fill and that the Corps did not have sufficient control and responsibility over the entire valley fill to warrant including the entire project in the scope of the Corps’ environmental review.

The Corps has no jurisdiction to authorize surface coal mining; the SMCRA makes clear that only the West Virginia Department of Environmental Protection can do that in West Virginia. The specific activity the Corps authorized was simply the dredging and filling of certain stream beds at the Boone North mine. The reasoning and holding in Aracoma apply equally to this case: The Corps properly limited its NEPA review to only those environmental impacts associated with the specific discharge of fill material authorized at the Boone North mine.

OVEC has failed to distinguish this case from Aracoma. Even if human-health impacts were not considered elsewhere in the permitting process, Aracoma would not require the Corps to consider them. The Corps’ issuance of a § 404 permit cannot authorize surface coal mining; only a SMCRA permit can do that.

We also affirm the district court holding that the Corps did not violate the Clean Water Act in granting Raven Crest’s § 404 permit.

Judgment for defendants affirmed.