Section 303(d) Listing does not Prevent Corps from Approving New Mining Activities

Ohio Valley Environmental Coalition, Inc. v. U.S. Army Corps of Engineers

(2013) ___ F.3d ___

Against the background of an impaired watershed subject to Section 303(d), the Fourth Circuit has affirmed a decision by the Army Corps of Engineers’ to issue a Section 404 permit to allow a mining company to discharge fill material into tributary streams in connection with a surface coal mining operation in West Virginia.

The case involved an otherwise typical coal operation. The operator proposed to remove mountaintop rock to extract coal, and permanently place some of the resulting overburden in a basin. The basin, however, included tributaries to a Section 303(d)-listed watershed. Under federal regulations, the Corps was therefore required to determine that the activity would not lead or contribute to violations of the state’s water quality standards before issuing the permit. The Corps adopted a FONSI on the premise that the watershed, while impaired, was still sufficiently robust in stream and habitat value to absorb the impacts of mining without a significant adverse effect.

In the ensuing litigation, opponents first attacked the baseline determination that the watershed was fundamentally in good condition, notwithstanding the 303(d) listing. The court found the Corps’ characterization to be adequate, however, because it included a detailed review of the fill site, and the conditions in the watershed. The court, persuaded by the depth of analysis, quoted the decision documents at length, and found that the record supported the Corps’ finding that “this level of impairment did not prevent the streams…from absorbing the impacts of past mining.”

Opponents next argued that the Corps could not have rationally found that the mine would not have a cumulatively significant impact on the watershed. Again, the court sided with the Corps. Based on the extensive efforts to investigate the mine’s impacts, the court ultimately found that the weight of analysis surpassed the court’s ability to question the Corps’ conclusions: “[T]he record amply shows that the Corps grappled with the issue extensively…we may not ‘use review of an agency’s environmental analysis as a guide for second guessing substantive decisions…’”

Granting a Section 404 permit in an impaired watershed, without an EIS, is no small undertaking. The case represents yet another example of how a comprehensive NEPA document will carry federal agencies through the “arbitrary and capricious” standard which federal courts apply when reviewing NEPA challenges.

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