Earlier this month, I reported on a blow that the D.C. Circuit dealt mountaintop removal mining in Mingo Logan Coal Co. v. EPA, No. 12-5150 (D.C. Cir.). Last week, the Fourth Circuit helped the industry get back up on its feet when it affirmed a district court decision that rejected a challenge to a fill permit issued by the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act in connection with a mountaintop removal mining operation in West Virginia. That permit authorized Highland Mining Company to deposit excess rock (also known as overburden), removed from a mountaintop to extract the underlying coal, into a valley traversed by a stream called Reylas Fork, part of the Dingess Run watershed.
In Ohio Valley Envtl. Coalition, Inc., et al. v. U.S. Army Corps of Eng’rs, et al., No. 12-1999 (4th Cir., May 15, 2013), several environmental groups challenged the Section 404 permit that the Corps issued to Highland Mining on two principle grounds. First, they contended that the Corps “materially misapprehended” the baseline conditions of the Dingess Run watershed, which tainted its analysis of whether the watershed could sufficiently absorb the impacts of the valley fill. Second, they argued that the Corps acted arbitrarily and capriciously when it determined that it was not required to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) because the valley fill would not have a significant cumulative impact on water quality in the watershed.
In support of their first argument, the groups suggested that an impairment listing of Dingess Run by the West Virginia Department of Environmental Protection was incompatible with the Corps’ findings that Dingess Run “had good water quality, healthy aquatic life, and no significant mining impacts.” After noting the limitations of the state impairment listing, the Court concluded that the Corps reached an “informed judgment as to the baseline conditions” by conducting its own independent analyses both of the conditions at the site of the mine fill and of the Dingess Run watershed as a whole.
In support of their second argument, the groups suggested that the Corps, by “irrationally dismiss[ing] the strong correlation between surface coal mining activities and downstream biological impairment,” failed to take the “hard look” at the potential environmental consequences of a project required under NEPA. The Court found otherwise, concluding that “[t]he Corps’ predictive judgment [that the valley fill will not have a cumulatively significant impact on the streams in the Dingess Run watershed] was based on fact and recommendations, adduced during a lengthy consultation between the Corps, Highland Mining, the EPA, and the WVDEP.” In reaching this conclusion, the Court determined that the Corps had rationally found that “the connection between conductivity and stream impairment was not strong enough to preclude a permit” and that certain “compromise measures agreed to by the EPA and Highland Mining would successfully mitigate the potential for adverse effects.”
The Court seemed particularly impressed with these “compromise measures,” which may well have been the deciding factor in this case. Following public notice of Highland Mining’s application for the Section 404 permit, EPA submitted comments warning that “the direct and cumulative impacts from this and future mines will be persistent and permanent and can not be sufficiently or effectively compensated through the proposed mitigation.” After receiving EPA’s comments, Highland Mining requested that the Corps stay consideration of its permit application while it sought to address EPA’s concerns.
The Corps, EPA and Highland Mining then consulted with one another and agreed to certain modifications to the conditions of the permit. These included a reduction to the linear extent of the impact to Reylas Fork and a mitigation plan that involved monitoring and best management practices designed to, among other things, minimize increases in conductivity and total dissolved solids. In explaining in his concurring opinion why he was reluctant to “seize upon [EPA’s original comments] as a basis for vacating the later grant of the fill permit,” Judge Wilkinson expressed concern that doing so “would stifle the very agency candor and applicant responsiveness that is essential to the proper functioning of the administrative process and, ultimately, to the goal of natural resource protection.”
Read together with Mingo Logan, the Ohio Valley case underscores the importance of gaining EPA approval of a project requiring a Section 404 permit. Applicants should carefully evaluate the potential costs and benefits of addressing or ignoring EPA’s concerns when undertaking such projects in the future.