Wednesday, August 15, 2012

Chambers Upholds CWA Section 404 Permit

In the ongoing battle over Mountaintop Removal Mining, the coal industry scored a victory Friday in OVEC v. U.S. Army Corps of Engineers, S.D. W. Va. Civil Action No. 3:11-0149.  A link to a copy of the published decision is here:  At issue is whether the Corps of Engineers properly issued a Clean Water Act Section 404 valley fill permit to Highland Mining Company in connection with its Reylas surface mine in Logan County. 
A rich history of Section 404 permitting litigation has blossomed in the Southern District of West Virginia, and on appeal, in the Fourth Circuit.  In Kentuckians for Commonwealth Inc. v. Rivenburgh  317 F.3d 425, 430 (4th Cir. 2003), the Fourth Circuit overturned the Southern District of West Virginia’s judicially-imposed moratorium on valley fill permits.  The Fourth Circuit disagreed with the District Court’s holding that the CWA only permits discharge of fill material that achieves some primary beneficial purpose (such as building a dam) and prohibits discharges that are merely for waste disposal.  In Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005), the Fourth Circuit held that the Southern District of West Virginia was wrong to enjoin the use of Nationwide Permit 21, finding that the Corps of Engineers acted within the bounds of its discretion in issuing NWP21 for use in coal mining. In OVEC v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), the Fourth Circuit again ruled that the Southern District improperly substituted its discretion for the Corps of Engineers discretion in striking down a number of permits over concerns about conductivity discharging from mine operation.
In the present case, the Southern District appears to have taken to heart the Fourth Circuit’s  instructions to refrain from adding itself as an additional level of review of Section 404 permits.  Highland Mining’s Section 404 permit had been challenged by the Sierra Club and others, who argued that: 1) a mitigation plan submitted by Highland Mining to offset impacts of the fill was inadequate; and  2) that the Corps erroneously concluded that discharges of selenium and conductivity would not cause significant cumulative adverse effects to the watershed. 
The Court properly recognized that its discretion was severely limited by the Aracoma decision. It stated, “in matters involving complex prediction based on special expertise, a reviewing court must be at its most deferential.” Thus, it declined to substited its judgment for the Corps in reviewing the adequacy of Highland’s mitigation plan. With regard to selenium, the Court ruled that a Clean Water Act Section 401 “certification” issued by the State confirming that the project would meet water quality standards was not contested by EPA and, under Corps regulations, was therefore binding on the Corps.
With respect to conductivity, the Court held that the 401 certification was not binding, because EPA had objected to the permit on conductivity-related grounds. The Court went to great lengths to note that it agreed with the Sierra Club experts regarding the correlation among mining, conductivity increases, and bug loss, but ultimately held that, since the Corps, EPA, and Highland met extensively and created comprehensive monitoring and action plans to deal with conductivity should it become a problem, Aracoma dictated that the Court not substitute its judgment for that of the Corps.  Accordingly, the Court declined to enjoin Highland’s use of the Section 404 permit. 
The upshot of this decision should be that environmental groups should no longer have a valid basis to challenge Section 404 permits in District Court when their argument is merely that the Corps made the wrong permitting decision after reviewing all the evidence submitted to it at the time. So long as the Corps has a reasonable basis for making its decisions, court challenges to those decisions should come to an end.

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