By: Douglas J. Crouse
The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.
On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Coal River Mountain Watch, and Sierra Club filed suit, claiming that the Corps had violated the Clean Water Act and NEPA by not considering a series of studies allegedly linking mining to adverse health impacts. On August 18, 2014, the U.S. District Court for the Southern District of West Virginia issued an order rejecting the groups’ claims.
The groups subsequently appealed the district court’s order to the Fourth Circuit, raising the same claims under NEPA and the Clean Water Act.
With respect to NEPA, the Fourth Circuit held that its prior decision in Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), in which it rejected a similar challenge, foreclosed the groups’ argument. Aracoma involved claims regarding whether the scope of the Corps’ NEPA analysis must include effects beyond those regulated by section 404. Ultimately, the Aracoma court concluded that it would be inappropriate to require the Corps to review aspects of general surface mining effects that were “outside of the specific dredge-and-fill activities regulated by section 404.”
According to the Fourth Circuit, Raven Crest’s case “involves a very similar dispute.” The health studies used by the anti-mining groups only relate to surface mining as a whole. But surface mining is not the “specific activity” authorized by section 404, and surface mining is not within the Corps’ control and responsibility. Rather, surface mining falls under the exclusive jurisdiction of the West Virginia Department of Environmental Protection. Thus, the court found that “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.”
The court likewise held that the Corps did not violate the Clean Water Act by deciding not to consider the health studies. The scope of the Corps’ Clean Water Act review is also limited to the effects from discharges of dredged or fill material, and “do[es] not … create an obligation for the Corps to study the effects of activities beyond the proposed discharge itself.” Therefore the court concluded that the groups’ Clean Water Act 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.”
This decision follows similar rulings in a nearly identical case brought in the U.S. District Court for the Western District of Kentucky (Kentuckians for the Commonwealth v. United States Army Corps of Eng’rs, 963 F. Supp. 2d 670 (W.D. Ky. 20130)), and affirmed by the Sixth Circuit Court of Appeals (Kentuckians for the Commonwealth v. United States Army Corps of Eng’rs, 746 F.3d 698 (6th Cir. 2014)).
The article was authored by Douglas J. Crouse, Jackson Kelly, PLLC.