Ohio Valley Environmental Coal v. United States Army Corp
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 2:12-cv-06689. [999882449]. [14-2129]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2129
OHIO VALLEY ENVIRONMENTAL COALITION, INC.; WEST VIRGINIA
HIGHLANDS CONSERVANCY, INC.; SIERRA CLUB; COAL RIVER
MOUNTAIN WATCH INC.,
Plaintiffs – Appellants,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; THOMAS P. BOSTICK,
Commander and Chief of Engineers, U.S. Army Corps of
Engineers; STEVEN MCGUGAN, Colonel, District Engineer, U.S.
Army Corps of Engineers, Huntington District,
Defendants – Appellees,
RAVEN CREST CONTRACTING, LLC,
Intervenor/Defendant – Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
John T. Copenhaver,
Jr., District Judge. (2:12-cv-06689)
Argued:
May 11, 2016
Decided:
July 8, 2016
Before DUNCAN, WYNN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wynn and Judge Harris joined.
ARGUED: Peter M. Morgan, SIERRA CLUB, Denver, Colorado, for
Appellants.
Robert Harris Oakley, UNITED STATES DEPARTMENT OF
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JUSTICE, Washington, D.C.; Douglas J. Crouse, JACKSON KELLY,
PLLC, Charleston, West Virginia, for Appellees.
ON BRIEF:
Joseph M. Lovett, J. Michael Becher, APPALACHIAN MOUNTAIN
ADVOCATES, Lewisburg, West Virginia, for Appellants.
John C.
Cruden, Assistant Attorney General, Aaron Avila, Ruth Ann
Storey,
Austin
Saylor,
Environment
and
Natural
Resources
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Federal Appellees. Robert G. McLusky, JACKSON KELLY, PLLC,
Charleston, West Virginia, for Appellee Raven Crest Contracting,
LLC.
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DUNCAN, Circuit Judge:
Raven
Crest
Contracting,
LLC
(“Raven
Crest”)
operates
a
surface coal mine near Racine, West Virginia, known as the Boone
North No. 5 Surface Mine (“the Boone North mine”).
This action
challenges the adequacy of the environmental review conducted by
the
Army
Corps
of
Engineers
(“the
Corps”)
before
the
Corps
issued a permit pursuant to section 404 of the Clean Water Act,
33
U.S.C.
§ 1344,
authorizing
Raven
Crest
to
discharge
fill
material into waters of the United States in conjunction with
that mine.
The Plaintiffs-Appellants are a consortium of environmental
groups,
efforts
involving
“OVEC,” 1
collectively
surface
Virginia in the past.
that
coal
have
engaged
mining
in
operations
advocacy
in
West
OVEC claims that the Corps violated both
the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321
et seq., and the Clean Water Act by failing to consider evidence
that
surface
health
coal
effects
mining
in
nearby
is
associated
with
communities.
The
adverse
district
publiccourt
disagreed, and granted the Corps’ and Raven Crest’s motions for
summary
that
judgment,
the
holding
connection
that
between
the
surface
1
Corps
coal
properly
mining
determined
and
public
OVEC includes the Ohio Valley Environmental Coalition, the
West Virginia Highlands Conservancy, Coal River Mountain Watch,
and the Sierra Club.
3
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health
was
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an
environmental
issue
review.
not
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properly
OVEC
within
appealed.
the
Because
scope
of
its
this
case
is
materially indistinguishable from our precedent in Ohio Valley
Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177
(4th Cir. 2009), in which we rejected a similar challenge, we
affirm.
I.
At the Boone North mine, Raven Crest planned to “provide
for
the
safe
and
efficient
extraction
of
approximately
6.8 [million] tons of steam grade bituminous coal” from a 724acre area.
J.A. 93.
To carry out its proposal, Raven Crest was
required to obtain permits under each of four federal regulatory
provisions: the Surface Mining Control and Reclamation Act of
1977 (“SMCRA”), 30 U.S.C. § 1201 et. seq.; and sections 401,
402, and 404 of the Clean Water Act, 33 U.S.C. §§ 1341, 1342,
1344.
We review each of these permitting requirements below,
focusing particularly on Raven Crest’s section 404 permit, as
that is the specific permit OVEC has challenged in this case.
A. SMCRA Permit
SMCRA is a federal statute that mandates certain minimum
requirements for state programs that regulate surface mining.
If the state regulatory program meets those requirements, SMCRA
grants that state “exclusive jurisdiction over the regulation of
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surface
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coal
mining
state’s borders.
approved
SMCRA
and
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reclamation
30 U.S.C. § 1253.
program
is
operations”
within
the
West Virginia’s federally
administered
by
the
West
Virginia
Department of Environmental Protection (“WVDEP”).
Anyone wishing to undertake surface coal mining operations
in
West
Virginia
must
obtain
a
SMCRA
permit
from
WVDEP.
Aracoma, 556 F.3d at 189 (citing 30 U.S.C. § 1256(a)).
SMCRA
permit
application
about
possible
“must
environmental
provide
detailed
consequences
of
The
information
the
proposed
operations, as well as assurances that damage to the site will
be
prevented
or
minimized
during
mining
and
repaired after mining has come to an end.”
substantially
Id. at 196; see
30 U.S.C. §§ 1257, 1265.
WVDEP issued a SMCRA permit to Raven Crest on September 3,
2009, authorizing Raven Crest “to engage in surface mining” at
the Boone North mine.
J.A. 522.
B. 401 Certification
Section
requires
a
401
of
the
prospective
Clean
mine
Water
Act,
operator
to
33
U.S.C.
obtain
a
§
1341,
so-called
“401 certification” from the state in which the mine will be
located “stating
that
any
discharge
from
the
mine
site
comply with all applicable water quality standards.”
556 F.3d at 190.
state
water
will
Aracoma,
Notably, the Clean Water Act requires that
quality
standards
be
5
submitted
to
the
federal
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Environmental Protection Agency (“EPA”) for approval, and that
they be sufficiently stringent to protect public health.
33 U.S.C.
§
1313(c).
Without
a
401
certification,
no
See
other
“Federal license or permit to conduct any activity . . . which
may result in any discharge” into waters of the United States is
valid.
33 U.S.C. § 1341(a).
WVDEP issued a 401 certification for the Boone North mine
on
May
13,
activities
2011,
would
representing
not
cause
a
that
Raven
violation
EPA-approved water quality standards.
Crest’s
of
West
proposed
Virginia’s
J.A. 524.
C. Section 402 NPDES Permit
Under section 402 of the Clean Water Act, 33 U.S.C. § 1342,
no person may discharge pollutants into the waters of the United
States
without
Pollutant
SMCRA,
permit
Discharge
the
approach
a
Clean
in
Elimination
Water
which
issued
Act
sets
states
may
pursuant
System
up
to
the
(“NPDES”).
a
National
As
with
cooperative-federalism
administer
their
own
NPDES
permitting program so long as the state program meets certain
minimum federal requirements.
West Virginia’s NPDES permitting
program is also administered by WVDEP.
Raven Crest’s plan for the Boone North mine involved the
discharge
of
both
treated
water
and
stormwater
runoff
several creeks and tributaries at the Boone North mine.
6
into
WVDEP
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issued
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an
permit
NPDES
discharges.
on
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May
27,
2009,
authorizing
those
J.A. 526.
D. Section 404 Permit
Finally,
33 U.S.C.
§
under
1344,
section
no
person
404
may
of
the
discharge
Clean
Water
dredged
or
Act,
fill
material into waters of the United States without a permit from
the Corps.
Raven Crest’s plan for the Boone North mine involved
“mining through streams,” a process in which stream channels are
“excavated in order to recover coal reserves that lie directly
beneath
and
adjacent
to
them,”
and
then
are
“backfilled,
regraded to [their approximate original contour] (or higher),
and the affected channels restored.”
J.A. 93.
Because this
process involves discharging fill material into streams, Raven
Crest needed a section 404 permit from the Corps before it could
proceed.
Below, we first provide an overview of the Corps’
permitting process, then recount the specifics of Raven Crest’s
efforts to obtain a section 404 permit for the Boone North mine.
1.
In reviewing a section 404 permit application, the Corps
must ensure that the proposed discharge of fill material will
not cause “‘[s]ignificantly adverse effects’ on human health or
welfare, on aquatic life and other wildlife dependent on aquatic
ecosystems,
on
aquatic
ecosystem
diversity,
productivity,
and
stability, or on recreational, aesthetic, and economic values.”
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Aracoma, 556 F.3d at 191 (quoting 40 C.F.R. § 230.10(c)).
In
addition, the Corps must conduct a “public interest review” for
each
permit
application
through
which
“[t]he
benefits
which
reasonably may be expected to accrue from the proposal must be
balanced against its reasonably foreseeable detriments.”
Id.
(quoting 33 C.F.R. § 320.4(a)(1)).
Because the Corps is a federal agency, its review of a
section 404 permit application must also comply with NEPA, which
requires agencies to produce an environmental impact statement
(“EIS”)
before
undertaking
any
“major
Federal
action[]
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(C). 2
NEPA’s environmental-review requirements
are procedural, not substantive.
Thus, “even agency action with
adverse environmental effects can be NEPA-compliant so long as
the
agency
competing
has
considered
policy
values
those
effects
outweigh
those
and
determined
costs.”
that
Aracoma,
556 F.3d at 191.
To determine whether an action is a “major” one requiring
an EIS, agencies prepare an Environmental Assessment (“EA”), a
“concise public document” meant to “provide sufficient evidence
and analysis for determining whether to prepare an [EIS] or a
2
Although the requirements to obtain SMCRA permits,
401 certifications, and NPDES permits are all based on federal
law, those three permits are issued by state agencies--in this
case, WVDEP--and thus are not subject to NEPA.
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finding of no significant impact.”
40 C.F.R. § 1508.9(a); see
Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581,
584 (4th Cir. 2012).
If the EA results in a finding of no
significant impact, the agency need not prepare an EIS.
2.
Raven Crest initiated the section 404 permitting process
for the Boone North mine on October 29, 2009, by submitting a
permit application to the Corps.
J.A. 92.
After receiving
Raven Crest’s application, the Corps issued a “Public Notice”
summarizing
the
application
and
soliciting
public
J.A. 134.
OVEC submitted a lengthy response letter.
letter,
expressed
it
a
concern
that
“[v]arious
comments.
In that
studies
have
shown that coal mining has significant impacts on the health of
those living in the coal fields,” and contended that “[t]hese
impacts must be considered by the Corps during the permitting
process.”
J.A. 204. 3
On August 10, 2012, the Corps issued a Permit Evaluation
and
Decision
Document
that
included
both
the
section
404–
required “public interest review” and the NEPA-required EA, and
3
For example, OVEC quoted one study finding that “[a]dult
hospitalizations
for
chronic
pulmonary
disorders
and
hypertension are elevated as a function of county-level coal
production, as are rates of mortality; lung cancer; and chronic
heart, lung, and kidney disease.” J.A. 204. It quoted another
that found “cancer clusters . . . correspond[ing] to areas of
high coal mining intensity.” Id.
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ultimately granted Raven Crest’s section 404 permit.
The public
interest review portion of the document concluded that issuing
the permit would not be contrary to the public interest.
The EA
portion of the document concluded that granting the permit would
“not
have
a
significant
environment,”
and
prepare an EIS.
that
impact
on
therefore
the
the
quality
Corps
of
did
the
not
human
need
to
J.A. 582–83.
The Corps did not consider the studies OVEC cited in its
comment letter, explaining that the issues those studies raised
regarding
public
the
health
relationship
“are
not
between
within
surface
the
coal
purview
of
mining
the
and
Corps’
regulatory authority, but are considered by WVDEP during the
SMCRA permitting process.”
In
response,
OVEC
J.A. 642.
brought
this
action
under
the
Administrative Procedure Act (“APA”), seeking to set aside the
Corps’
actions.
Specifically,
OVEC
sought
suspension
or
revocation of Raven Crest’s section 404 permit, claiming that
the Corps’ decision not to consider those studies violated both
NEPA and section 404. 4
interest
in
the
Raven Crest intervened to protect its
permit’s
continued
validity.
In
a
lengthy
order, the district court granted summary judgment to the Corps
4
OVEC asserted additional claims related to the Boone North
mine’s potential effects on water quality, but those claims have
been settled and are not before us on appeal.
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and Raven Crest, ruling that the Corps had complied with NEPA
and section 404 in issuing Raven Crest’s permit.
OVEC appealed.
II.
Under the APA, a court will set aside an agency action if
it
is
“arbitrary,
capricious,
an
abuse
otherwise not in accordance with law.”
of
discretion,
or
5 U.S.C. § 706(2)(A);
see Defenders of Wildlife v. N.C. Dept. of Transp., 762 F.3d
374, 393 (4th Cir. 2014).
“This inquiry must be searching and
careful, but the ultimate standard of review is a narrow one.”
N.C. Wildlife Fed’n v. N.C. Dept. of Transp., 677 F.3d 596, 601
(4th
Cir.
omitted).
2012)
(internal
quotation
marks
and
citations
“Deference is due where the agency has examined the
relevant data and provided an explanation of its decision that
includes a rational connection between the facts found and the
choice
made.”
Aracoma,
556
marks and citation omitted).
F.3d
at
192
(internal
quotation
Although the APA standard requires
deference to the agency’s decision-making, our review of the
district court’s legal conclusions on summary judgment is de
novo.
Newport News Holdings Corp. v. Virtual City Vision, Inc.,
650 F.3d 423, 434 (4th Cir. 2011).
We review the merits of OVEC’s arguments below.
We begin
with its argument that the Corps acted contrarily to NEPA in
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issuing
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Raven
Crest’s
section
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404
permit,
and
then
address
OVEC’s argument that the Corps acted contrarily to section 404.
A.
OVEC
argues
that
the
Corps
violated
NEPA
by
failing
to
include in its 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,
and we agree.
1.
Aracoma,
like
this
case,
involved
a
dispute
about
the
proper scope of the Corps’ NEPA inquiry for a section 404 permit
associated with a proposed surface coal mine.
The mines at
issue in Aracoma involved “valley fills,” a practice in which
excess earth excavated from the mine is disposed of in a manner
that buries an entire valley. 5
To ensure the stability of the
resulting mass, valley fills also typically involve the creation
of
an
“underdrain
streams located
system”
beneath
the
by
placing
valley
5
large
fill.
boulders
Aracoma,
in
556
the
F.3d
Factually, we note that the mines at issue in Aracoma had
a substantially larger environmental footprint than the Boone
North mine in that they involved valley fills, and affected
68,841 linear feet of streams. See 556 F.3d at 187. The Boone
North mine, in contrast, involves no valley fills and affects
only 15,079 linear feet of streams.
12
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at 186.
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This constitutes the discharge of fill material into
waters of the United States, necessitating a section 404 permit.
OVEC, which was also the plaintiff in Aracoma, argued that
the
Corps
caused
“should
by
the
have
fills”
considered
during
all
its
environmental
permit
review
impacts
process,
“including the impacts to the upland valleys where the fills
will be located.”
Id. at 193.
The Corps countered that it had
reasonably interpreted its own regulations to limit the scope of
its review to only the effects of the discharge of fill material
into “the affected waters and adjacent riparian areas.”
We agreed with the Corps.
Id.
The Corps’ regulations provide
that, in conducting its NEPA analysis, the Corps need address
only
“the
impacts
of
the
specific
activity
requiring
a
[section 404] permit and those portions of the entire project
over
which
the
district
engineer
has
sufficient
responsibility to warrant Federal review.”
app. B, § 7(b)(1).
control
and
33 C.F.R. pt. 325,
Further, the Corps has “sufficient control
and responsibility” to warrant review of a project as a whole,
rather than just the specific activity requiring a Corps permit,
when “the environmental consequences of the larger project are
essentially products of the Corps permit action.”
app. B., § 7(b)(2).
Id. pt. 326,
In the case of the valley fills at issue in
Aracoma, we held that the “specific activity” authorized by the
section
404
permit
was
“nothing
13
more
than
the
filling
of
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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.
Aracoma, 556 F.3d at 194–
95.
In so holding, we reasoned that “[t]o say that the Corps
has a level of control and responsibility over the entire valley
fill project such that ‘the environmental consequences of the
larger
project
are
essentially
products
of
the
Corps
permit
action,’” would be “to effectively read out of the equation the
elaborate, congressionally mandated schema for the permitting of
surface
mining
operations
prescribed
by
SMCRA.”
(quoting 33 C.F.R. pt. 325, app. B, § 7(b)(2)).
Id.
at 195
In other words,
because the great bulk of environmental effects associated with
surface coal mining operations in West Virginia are authorized
by
WVDEP’s
granting
of
a
SMCRA
permit,
not
by
the
Corps’
granting of a section 404 permit, it would be inappropriate to
require the Corps to review aspects of those projects outside of
the
specific
dredge-and-fill
activities
regulated
by
section 404.
2.
This case involves a very similar dispute.
limited
its
NEPA
review
to
the
14
environmental
Here, the Corps
impacts
of
the
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dredge-and-fill activities associated with “mining through” the
streams located at the Boone North mine site.
OVEC, however,
argues that the Corps’ review should have included consideration
of
the
environmental
impacts
of
surface
coal
mining
more
generally, and specifically of the studies OVEC cited showing
adverse public health effects in communities near surface coal
mines.
As in Aracoma, however, the activity OVEC seeks to force
the
Corps
“specific
to
study--surface
activity”
coal
authorized
by
mining--is
Raven
neither
Crest’s
the
section
404
permit nor an aspect of the Boone North mine over which the
Corps
has
“sufficient
Federal review.”
Corps
has
no
control
and
responsibility
to
warrant
See 33 C.F.R. pt. 325, app. B, § 7(b)(1).
jurisdiction
to
authorize
surface
coal
The
mining;
SMCRA makes clear that only WVDEP 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.
Thus, the reasoning and holding in Aracoma are equally
applicable 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
case
from
North mine.
Nevertheless,
OVEC
seeks
to
distinguish
this
Aracoma in two ways, neither of which is persuasive.
15
First,
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OVEC
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claims
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that
the
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“specific
activity”
authorized
by
the
section 404 permit in this case is not simply the discharge of
fill material into streams, but rather the actual coal mining
that creates the fill material to be discharged.
According to
OVEC, the Corps itself “repeatedly described the activity being
permitted as the mine-through of streams on the site to recover
coal reserves.”
Appellants’ Br. at 22.
This first proposed distinction fails because it overlooks
the
core
holding
jurisdiction
of
relates
Aracoma,
only
to
which
fill
is
that
activities
the
Corps’
associated
with
surface coal mining; the mining itself is regulated exclusively
by WVDEP pursuant to SMCRA.
activity”
authorized
by
Coal mining cannot be the “specific
Raven
Crest’s
section
404
permit,
because the Corps has no jurisdiction to authorize coal mining;
under
SMCRA,
only
WVDEP
can
do
that.
In
reaching
this
conclusion, we are in accordance with the Sixth Circuit which,
in a case that also involved mining through streams, held that
Aracoma
“strongly
and
persuasively
support[ed]
the
Corps’[]
decision to limit its scope of analysis” to include only the
fill activities associated with the mining, and not the mining
itself.
Kentuckians for the Commonwealth v. U.S. Army Corps of
Eng’rs, 746 F.3d 698, 710 (6th Cir. 2014).
Second, OVEC argues that Aracoma is inapposite because its
claims in that case “were limited to the Corps’ duty to consider
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water quality impacts of the authorized valley fills and related
mining,” whereas here they relate to human health.
Br. at 33.
“rely
on
Appellants’
According to OVEC, Aracoma allowed the Corps to
existing
statutory
schemes
that
.
.
.
adequately
address” the water quality concerns, id., but no such statutory
schemes exist to address the impacts of surface coal mining on
human health.
This assertion is simply incorrect.
Section 401 of the
Clean Water Act requires a certification by the State of West
Virginia that a proposed mine will not cause a violation of
state water-quality standards, which are developed with humanhealth effects in mind.
WVDEP issued such a certification here.
Moreover, even if human-health impacts were not considered
elsewhere in the permitting process, Aracoma would not require
the Corps to consider them.
OVEC misreads Aracoma as saying
that the Corps must consider any effects of coal mining that are
not sufficiently studied by other agencies.
we
have
explained,
Aracoma
holds
that
To the contrary, as
the
Corps
need
not
consider the effects of surface coal mining because the Corps’
issuance of a section 404 permit cannot authorize surface coal
mining; only a SMCRA permit can do that.
17
We therefore conclude
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that OVEC’s attempts to distinguish Aracoma in this regard are
unavailing. 6
B.
Finally,
regulations
OVEC
argues
implementing
that
two
section
provisions
404
require
of
the
the
Corps’
Corps
to
consider the connection between surface coal mining and adverse
public health effects during its permitting process.
First,
OVEC cites 40 C.F.R. § 230.10(c), which prohibits the Corps from
issuing a section 404 permit for discharges of fill material
that “will cause or contribute to significant degradation of the
waters of the United States,” including discharges that will
involve “[s]ignificantly adverse effects . . . on human health
or welfare.”
Second, OVEC cites 33 C.F.R. § 320.4(a)(1), which
requires the Corps to conduct a “public interest review” that
involves a weighing of “[t]he benefits which reasonably may be
expected
to
accrue
from
the
proposal
.
.
.
against
its
reasonably foreseeable detriments.”
6
We also reject OVEC’s argument that the Corps violated
NEPA because it considered the economic benefits of the proposed
mine as a whole, but limited its consideration of environmental
impacts solely to the authorized discharge of fill material.
For this argument, OVEC relies on a Corps regulation requiring
that the scope of NEPA analysis “used for analyzing both impacts
and alternatives should be the same scope of analysis used for
analyzing the benefits of a proposal.” 33 C.F.R. pt. 325, App.
B., § 7(b)(3). But that regulation is inapplicable because the
Corps’ discussion of economic benefits occurred not in its NEPA
analysis, but rather as part of its section 404 “public interest
review.” See J.A. 551.
18
Appeal: 14-2129
Doc: 87
Filed: 07/08/2016
Pg: 19 of 19
These provisions certainly require the Corps to take into
account the public-health effects of a proposed discharge of
fill material before granting a section 404 permit.
They do
not, however, create an obligation for the Corps to study the
effects
of
activities
beyond
the
proposed
discharge
itself.
Thus, OVEC’s section 404 argument fails for the same reason its
NEPA argument fails: it seeks to require the Corps to study the
effects of surface coal mining, an activity it cannot authorize
and over which, under SMCRA, WVDEP has exclusive jurisdiction.
Accordingly, we also affirm the district court’s holding that
the Corps did not violate the Clean Water Act in granting Raven
Crest’s section 404 permit.
III.
For the reasons stated above, the judgment of the district
court is
AFFIRMED.
19
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