The U.S. District Court for the Southern District of West Virginia has upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of Xinergy Ltd.
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 subsequently 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. The anti-mining groups also claimed that the compensatory mitigation plan approved by the Corps violated the Clean Water Act, although they would later withdraw those claims.
On August 18, 2014, the district court issued an order rejecting the groups’ claims.
Regarding NEPA, the district court held that the Corps’ decision not to consider studies associating general surface mining to health issues was not “arbitrary and capricious.” Specifically, the Corps had determined that the scope of its NEPA review was limited to effects from the specific § 404 dredge and fill discharges that it was authorizing. The health studies, on the other hand, related to surface mining as a whole. The Court held that the Corps reasonably limited its NEPA scope of review “to the ‘footprint of the regulated activity within the delineated water,’ rather than the entire mine.” The Court also found that the Corps had not acted unreasonably “in excluding the studies as outside its scope of review for the reason that the articles do not contemplate that the health effects were caused by the type of discharges associated with this mine.” Ultimately, the Court concluded that the Corps “adequately studied the proposed activity and [took] a hard look at the relevant environmental consequences of its decision.” Under NPEA, “[t]hat ends the inquiry.”
The district court likewise held that the Corps did not violate the Clean Water Act by deciding not to consider the health studies. The Court noted that the scope of the Corps’ Clean Water Act review was also limited to the effects from discharges of dredged or fill material, and again focused on the fact that none of the health studies identified any alleged adverse health effects from those discrete discharges.
Furthermore, the Court additionally found that the Corps had indeed considered the “known potential human health effects” of its permit decision by analyzing possible effects on water quality and municipal water supplies.
This decision follows a similar ruling 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. Sup.. 2d. 670 (W.D. Ky. 2013)), which was recently affirmed by the 6th Circuit Court of Appeals (Kentuckians for the Commonwealth v. United States Army Corps of Eng’rs, 746 F.3d 698 (6th Cir. 2014)).
This article was authored by Douglas J. Crouse, Jackson Kelly PLLC. For more information on the author, click here.