Case Information
*1 Before: KEITH, SILER, and ROGERS, Circuit Judges.
_________________
COUNSEL ARGUED: Neil Gormley, EARTHJUSTICE, Washington, D.C., for Appellants. J. David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Robert G. McLusky, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellee Lecco. ON BRIEF: Neil Gormley, Jennifer C. Chavez, EARTHJUSTICE, Washington, D.C., Joseph M. Lovett, J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, Mary Cromer, APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky, for Appellants. J. David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Robert G. McLusky, JACKSON KELLY PLLC, Charleston, West Virginia, Kevin M. McGuire, JACKSON KELLY PLLC, Lexington, Kentucky, for Appellee Leeco.
1
_________________
OPINION
_________________
ROGERS, Circuit Judge. More than six years after the Commonwealth of Kentucky authorized a surface mining operation in Perry County, this appeal raises the issue of the proper scope of environmental analysis a federal agency must use in issuing a permit related to a small but necessary part of the operation. The Surface Mining Control and Reclamation Act grants Kentucky “exclusive jurisdiction” over the regulation of surface mining within the state, subject to minimum federal standards. In order to conduct surface mining in Kentucky, a mine operator must obtain a permit for the overall operation from Kentucky’s Division of Mine Permits, as well as subsidiary permits related to water and stream quality, as required by the Clean Water Act. One of these permits is a § 404 permit, which is issued by the U.S. Army Corps of Engineers and is required for the discharge of dredged or fill material into waters of the United States. After obtaining a permit from the Division of Mine Permits, intervenor Leeco, Inc. applied for and received a § 404 permit from the Corps. The permit authorizes Leeco to “mine through” and fill certain surface stream beds, which are already in a degraded state, and requires Leeco to offset the limited environmental effect of the filling by improving other streams in the watershed.
The plaintiffs challenge the Corps’s issuance of the § 404 permit, arguing that the National Environmental Policy Act (“NEPA”) requires the Corps to have considered in its environmental assessment the public health impacts related to surface mining in general, and that the Corps violated the Clean Water Act by using a flawed analysis of the associated compensatory mitigation plan. In a comprehensive and thoughtful opinion, the district court rejected the plaintiffs’ arguments. This appeal followed. Because the Corps did not abuse its discretion in limiting the scope of its environmental analysis only to health effects closely related to the discharge of dredged or fill material into jurisdictional waters, the Corps did not violate NEPA. And because the Corps’s acceptance of Leeco’s compensatory mitigation plan was not an arbitrary and capricious exercise of its specialized expertise, the Corps did not violate its requirements under the Clean Water Act. Accordingly, we must uphold the Corps’s decision to issue the § 404 permit.
We of course decide only the issues before us—whether the permit at issue in this case complies with the Clean Water Act and the National Environmental Policy Act. Our decision takes no position on the public policy questions of whether surface mining is in the larger public interest, or whether mountaintop removal should be allowed by the Commonwealth of Kentucky.
Congress passed the Surface Mining Control and Reclamation Act of 1977
(“SMCRA”) in order to “establish a nationwide program to protect society and the
environment from the adverse effects of surface coal mining operations.” 30 U.S.C.
§ 1202(a). The Act set up a system of “cooperative federalism,” in which state
governments could opt in to regulating coal surface mining in their states so long as they
establish agencies to enact and administer their own regulatory programs consistent with
federal minimum standards and subject to federal approval.
See Hodel v. Va. Surface
Mining & Reclamation Ass’n
,
Although a SMCRA permit authorizes all of the activities related to a surface mining operation, it alone may not be sufficient to allow a mine operator to conduct surface mining operations. See Ohio Valley Envtl. Coal. v. Aracoma Coal Co. , 556 F.3d 177, 190–91 (4th Cir. 2009). Other permits may be required to authorize portions of the operation, if those specific activities are regulated by an independent regulatory program. For example, if a surface mining operation will affect the navigable waters of the United States, the Clean Water Act, 33 U.S.C. § 1251 et seq. , which aims to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by eliminating “the discharge of pollutants into the navigable waters.” 33 U.S.C. § 1251(a)(1), requires a surface mine operator to obtain various other permits related to the quality of water and wetlands.
For the typical surface mining operation, three different Clean Water Act permits are required. First, a mine operator must obtain a § 401 permit from the proper permitting agency to ensure that “any discharge into the navigable waters” complies with regulations designed to limit the discharge of pollutants into navigable waters and to ensure the maintenance of federal water quality standards. Id. § 1341. Second, a mine operator must obtain a § 402 permit for “the discharge of any pollutant, or combination of pollutants.” Id. § 1342. Finally, and most relevant to the present litigation, a mine operator must also obtain a § 404 permit “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Id. § 1344. This final permit must be obtained from the U.S. Army Corps of Engineers. See id. § 1344(d); 33 C.F.R. § 320.2(f).
In conducting its review for a § 404 permit, the Corps is required to comply with guidelines promulgated by the Environmental Protection Agency (“EPA”), which are called the § 404(b)(1) Guidelines. 33 U.S.C. § 1344(b)(1); see also 33 C.F.R. § 320.2(f); 40 C.F.R. pt. 230. The review includes the consideration of the health and welfare of those that would be affected by the discharge into jurisdictional waters. For example, under the regulations, the Corps must not issue a permit if the discharge of dredged or fill material would “cause or contribute to significant degradation of the waters of the United States,” which may be constituted by certain effects considered individually and collectively, including “[s]ignificantly adverse effects of the discharge of pollutants on human health or welfare” and “[s]ignificantly adverse effects of discharge of pollutants on recreational, aesthetic, and economic values.” 40 C.F.R. § 230.10(c), (c)(1), (c)(4). The Corps additionally imposes some general policies that are to be considered in the evaluation of all permit applications, and not only § 404 permits. Under these policies, a decision must include “an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest,” and “reflect the national concern for both protection and utilization of important resources.” 33 C.F.R. § 320.4(a).
In addition to its responsibilities under the Clean Water Act, the Corps must also
comply with the requirements of NEPA, 42 U.S.C. § 4321
et seq.
, which requires federal
agencies to “take a ‘hard look’ at the potential environmental consequences of their
actions.”
Aracoma Coal
,
The present action concerns a proposed surface coal mining operation [1] in Perry County, Kentucky, by the intervenor Leeco, Inc. The proposed mining area and the stream beds within it are already environmentally degraded, having been heavily impacted in the past century by previous mining, logging, natural gas exploration, and agricultural activities. The Kentucky Department of Mine Permits authorized the mining operation, and then in early 2007 Leeco submitted an application to the Department of the Army for a permit to authorize the discharge of fill material into stream beds on the project site, as required by § 404 of the Clean Water Act. The Corps issued a public notice for Leeco’s application, with a 30-day comment period. This original proposal sought to construct six hollow fills and six sediment control ponds and would have involved discharges into 22,761 linear feet of stream. In the following years, Leeco supplemented and revised its application.
In June 2009 the Department of the Army, the EPA, and the Department of the Interior instituted an interagency action plan intended to “significantly reduce the harmful environmental consequences of Appalachian surface coal mining operations, while ensuring that future mining remains consistent with federal law.” Implementing the Interagency Action Plan on Appalachian Surface Coal Mining (June 11, 2009), available at http://www.osmre.gov/resources/mou/ASCM061109.pdf. In response to this plan, the EPA conducted a review of Leeco’s pending § 404 permit application. The EPA’s preliminary assessment concluded that there were “significant concerns that the project, as proposed, does not comply with the [EPA’s] 404(b)(1) Guidelines.” The EPA expressed concerns over water quality and mitigation attempts, as well as concern that “the proposed project may have significant human health impacts on the surrounding communities, all of which are low-income communities.” In a later letter, the EPA outlined extensive strategies on how to improve the plan.
In response to these concerns from the EPA, Leeco submitted a significantly revised permit application on July 19, 2011. The new application consolidated the fill plan to only one large hollow fill and one sediment control pond. Id. The new plan would impact only 18,268 linear feet of streams, a decrease of 4,593 linear feet. Id. This later design would all together impact 11,607 linear feet of ephemeral streams (that flow only during periods of heavy precipitation), 5,073 linear feet of intermittent streams (that flow continuously only at certain times of the year, usually because the source, such as melting snow, is seasonal), and 1,588 linear feet of perennial streams (that flow year round). The revised application included a compensatory mitigation plan that would require Leeco to replace 8,376 linear feet of stream in the same watershed area, to compensate for the loss of intermittent and perennial streams. In addition, Leeco agreed to pay the Kentucky Department of Fish and Wildlife Resources $752,047.50 in lieu of mitigation for the impacts on ephemeral streams.
The Corps issued a new public notice on August 5, 2011, with a comment period that lasted through August 19, 2011. During this comment period, the Sierra Club submitted comments objecting to the proposal, and attached studies purporting to demonstrate general health concerns related to surface coal mining. On April 3, 2012, the EPA informed the Corps that it had no further concerns regarding the proposed project, indicating the EPA’s approval of the new plan. On May 25, 2012, the Corps completed its review and decision to issue the permit, along with a detailed document discussing its decision. In its decision, the Corps found that “issuance or denial of the requested permit would not constitute a major federal action that would significantly affect the quality of the human environment,” and that that determination “constitutes a Finding of No Significant Impact.” The Corps finally granted Leeco the § 404 permit on July 26, 2012.
On October 17, 2012, the plaintiffs Kentuckians for the Commonwealth, a grassroots organization devoted to improving the quality of life for the citizens of Kentucky, and the Sierra Club, a national environmental nonprofit organization, filed a complaint against the Corps in the Western District of Kentucky, challenging the issuance of the permit and alleging that it was issued in violation of the Clean Water Act, NEPA, and the Administrative Procedure Act, 5 U.S.C. § 500 et seq. Count One alleged that the Corps had violated NEPA by failing to issue an environmental impact statement, Count Two alleged that the Corps had failed to consider adverse effects on human health and welfare as required by the Clean Water Act § 404(b)(1) Guidelines, Count Three alleged that the Corps had violated its own regulations in failing to properly consider the public interest, and Count Four alleged that the Corps violated the Clean Water Act § 404(b)(1) Guidelines by issuing a permit that will cause or contribute to violations of water quality standards and significant degradation of waters of the United States.
After motions and cross-motions for partial summary judgment, the district court,
in a thoroughly reasoned opinion, granted summary judgment in favor of the Corps on
all counts, dismissing the suit in its entirety on August 23, 2013.
Kentuckians for the
Commw. v. U.S. Army Corps of Eng’rs
, No. 3:12-CV-00682,
This appeal followed. On September 9, 2013, the district court issued an injunction pending this appeal.
We review this grant of summary judgment in a challenge to the Corps’s
permitting decision under the Clean Water Act and NEPA under the Administrative
Procedure Act’s arbitrary and capricious standard.
See Ky. Riverkeeper, Inc. v. Rowlette
,
relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Id.
(quoting
Nat’l Ass’n of Home Builders v. Defenders of Wildlife
,
“Judicial review of NEPA compliance is limited in scope.”
Id.
(quoting
Cmtys.,
Inc. v. Busey
,
On appeal, the plaintiffs have maintained two challenges to the Corps’s decision to issue the § 404 permit. First, the plaintiffs argue that the Corps violated NEPA by failing to consider the public health effects of the overall mining activity in conducting its NEPA review of the environmental effects of granting the § 404 permit, especially having considered overall economic benefits of the mining operation. Second, the plaintiffs argue that the Corps violated the Clean Water Act’s mitigation requirements by using a flawed analysis to assess the functional effects of the mitigation plan and by failing to substantiate one figure used in the calculation of the mitigation assessment protocol.
First, the Corps did not violate NEPA by deciding not to consider the evidence linking surface coal mining in general to public health problems. In discussing the public health consequences of granting the § 404 permit, the Corps properly focused on the possible public health effects of discharges on the local water supply, as well as those effects caused by air pollution created by the machines that would be conducting permit- relevant site preparation and operations. The Corps reasonably limited its scope of review to the effects proximately caused by the specific activities that were authorized by the permit. Most importantly, the Corps complied with the relevant regulations interpreting and implementing NEPA’s requirements.
The Corps did not entirely ignore the public health effects of granting the permit, but rather reasonably limited its scope of analysis only to those human health effects closely related to the discharge of fill or dredged material into jurisdictional stream beds. For example, the Corps assessed the potential impact of the permit activities on the local water supply, and it concluded, in large part because the nearest municipal water supply intake was a significant distance from the operation, that “it is not anticipated that this proposed project would affect the water supply.” Also, the Corps considered the effects of the permit activities on air pollution, concluding that the dust and emissions “will not exceed de minimis levels.” This analysis of health effects, albeit not as comprehensive and wide in scope as that demanded by the plaintiffs, was reasonable given the more limited nature of the threshold inquiry of whether the Corps’s action significantly affects the human environment.
The Corps acted without abusing its discretion when it determined that the scope of its NEPA analysis should be limited to the local, proximate effects of the dredging and filling activities that were specifically authorized by the permit. The Council on Environmental Quality’s regulations grant the Corps some discretion in performing the analysis of whether a federal action is significant enough to warrant an environmental impact statement. With respect to potential health effects, the Council’s regulations suggest only that public health effects “ should be considered,” 40 C.F.R. § 1508.27(b) (emphasis added). And when a set of effects is considered, the regulations allow substantial flexibility in delimiting which subsets of effects are relevant. In particular, the context of the federal agency’s action should be considered in determining the scope of its relevant effects: “Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole.” Id. § 1508.27(a).
The Corps was not required, as the plaintiffs contend, to expand the scope of its review beyond the effects of the filling and dredging activity to the effects of the entire surface mining operation as a whole. The Corps regulations, the validity of which is not in dispute, govern the Corps’s obligations under NEPA. Those regulations state that any NEPA document related to a permit should only “address the impacts of the specific activity requiring a [Corps] permit and those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review.” 33 C.F.R. pt. 325, app. B § 7(b)(1). Here, the overall mining project is not the specific activity authorized by the § 404 permit, nor does the Corps’s district engineer maintain sufficient control and responsibility over other portions of the entire project to warrant federal review.
The specific activity that is the subject of the permit is only the dredging and filling of jurisdictional waters. The Clean Water Act, as only one aspect of a more comprehensive multi-permit regulatory scheme, requires the Corps to provide a § 404 permit only for the “discharge of dredged or fill material into the navigable waters.” 33 U.S.C. § 1344(a). The statement accompanying the Corps’s NEPA implementing regulations confirms the limited purpose of § 404, stating that “[t]he Corps authorizes the discharge of dredged or fill material in 404 permits” and that, “[t]herefore, the activity the Corps studies in its NEPA document is the discharge of dredged or fill material.” Environmental Quality; Procedures for Implementing the National Environmental Policy Act (NEPA), 53 Fed. Reg. 3120, 3121 (Feb. 3, 1988) (“Corps Procedures”). [2]
The district court correctly determined that, given the Corps’s relatively minor role in the congressionally designed scheme for regulating surface mining, the Corps did not have sufficient control and responsibility over other aspects of the surface mining operation to warrant expanding the scope of its NEPA review. See Kentuckians , 2013 WL 4516774, at *10. It is clear that Congress intended SMCRA to create a centralized regulatory program for surface coal mining, and that the Corps’s role in the overlapping permitting scheme is secondary, affecting only a small albeit necessary part of the particular surface coal mining operation.
In any case, because the question of the proper scope of analysis in the environmental assessment entails interpretation of the Corps’s own regulations, the Corps is entitled to substantial deference with regard to its determination that the district engineer lacked “sufficient control and responsibility” to warrant review of other portions of the entire mining project. [3] In its decision, the Corps reasoned:
The NEPA Scope of Analysis in this case would include jurisdictional “waters of the U.S.,” and the immediate adjacent riparian corridor that would be filled directly or indirectly by the construction of the Hollowfill, construction of the sediment pond, and the mining through of streams. A broader scope is not appropriate because the [Clean Water Act] does not provide the Corps legal authority to regulate surface coal mining beyond the limits of the “waters of the U.S.” Rather, overall surface coal mining operations are permitted by and regulated under SMCRA, administered by the Kentucky [Division] of Mine Permits.
This reasoning properly weighed two of the factors that the Corps’s regulations use to determine whether there is sufficient control and responsibility to warrant the Corps to expand its scope of analysis to other portions of the state-authorized mining activity: “[t]he extent to which the entire project will be within Corps jurisdiction” and “[t]he extent of cumulative Federal control and responsibility.” 33 C.F.R. Pt. 325, App. B § (7)(b)(2)(iii)–(iv).
The Corps decision in this regard is consistent with the congressional design of both NEPA and the regulatory scheme at issue. Regarding surface coal mining regulation, Congress intended that primary regulatory power be placed in only one agency, in this case the Kentucky Department for Natural Resources. There are many considerations that must be balanced before authorizing a massive and environmentally significant operation, and Congress has determined that such a careful and sensitive decision is best made primarily by one decisionmaker. There are good reasons that Congress would not have designed a regulatory system in which each regulatory actor involved in a large operation, even in a comparatively minor way, is required to consider all of the effects of the overall project.
The restriction of the Corps’s scope of analysis is consistent with the
congressional policy to give to state governments the primary responsibility to regulate
overall surface mining operations. In enacting SMCRA, Congress declared that “the
primary governmental responsibility for developing, authorizing, issuing, and enforcing
regulations for surface mining and reclamation operations . . . should rest with the
States.” 30 U.S.C. § 1201(f);
see also Horizon Coal Corp. v. United States
,
And although “NEPA is a procedural and not a results-driven statute,”
Aracoma
Coal
,
The most closely analogous circuit court case,
Ohio Valley Environmental
Coalition v. Aracoma Coal Co.
,
The plaintiffs incorrectly argue that “[i]f the Corps does not investigate and address these serious health concerns, no agency will.” Appellants’ Reply Br. at 11. First, the Corps actually did consider public health in its substantive review of the § 404 permit. The EPA, which signed off on the permit and with which the Corps coordinated in reviewing the § 404 permit application’s compliance with the Clean Water Act and its associated regulations, specifically addressed concerns that “the proposed project may have significant health impacts on the surrounding communities, all of which are low- income communities.”
More importantly, Kentucky’s Division of Mine Permits, in complying with the federal standards contained in SMCRA and through is power to impose stricter standards in Kentucky, has the means to address public health concerns associated with surface coal mining. SMCRA is designed in part to “to protect society and the environment from the adverse effects of surface coal mining operations,” 30 U.S.C. § 1202(a), through “the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public,” id. § 1201(d). Kentucky’s surface mining permitting program, as required by the comprehensive minimum federal standards, includes extensive regulations designed to minimize the harmful impacts of surface mining activities. This includes requirements to “minimize disturbance of the hydrologic balance in both the permit area and adjacent areas,” 405 Ky. Admin. Regs. 16:060 § 1(1), to ensure that “[d]ischarges of water from areas disturbed by surface mining activities shall at all times be in compliance with all applicable federal and state water quality standards,” id. 16:070 § 1(1)(g), to place excess spoil in designated areas designed to “[m]inimize the adverse effects of leachate and surface water run-off from the fill on surface and ground water,” id. 16:130 § 1(1)(a), and to “minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, and . . . achieve enhancement of those resources where practicable,” id. 16:180 § 1(1). Generally, Kentucky’s regulatory program maps directly onto the federal minimum requirements established by any regulations passed pursuant to SMCRA. Ky. Rev. Stat. § 350.069. These comprehensive regulations, promulgated by the U.S. Department of the Interior and adopted by Kentucky’s Department for Natural Resources, are intended to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” 30 U.S.C. § 1202(f). To the extent that there is scientific evidence establishing that surface mining is generally bad for the public health, the plaintiffs should raise these concerns with those agencies in which Congress has placed the primary responsibility of regulating surface mining, either the federal Office of Surface Mining or the federally approved state regulators.
The plaintiffs also argue that the Corps violated its NEPA regulations by
considering the positive economic impacts of the overall mining project without
considering the public health impacts of the overall mining operation. This argument
fails to take into account that the Corps has other obligations besides its NEPA
obligations, and that the final decision document also contains independent (albeit
related) analyses required by the Clean Water Act and the Corps’s own regulations.
Even though the Corps’s regulations require a public interest review for all permit
decisions, 33 C.F.R. § 320.4(a), and the § 404(b)(1) Guidelines require the consideration
of certain effects on the public interest,
see, e.g.
, 40 C.F.R. § 230.10(c), these are not
NEPA obligations. It is true that for NEPA purposes “the scope of analysis used for
analyzing both impacts and alternatives should be the same scope of analysis used for
analyzing the benefits of a proposal.” 33 C.F.R. Pt. 325, App. B, § 7(b)(3);
see also
Corps Procedures,
In determining to issue a finding of no significant impact, the Corps performed an environmental assessment, limited in scope pursuant to the Corps’s own regulations designed to determine whether a permit decision requires an environmental impact statement. The content of this analysis is rational and appears to be thorough. That ends the inquiry. There is no substantive component to NEPA review; this court may only “insist that the agency has, in fact, adequately studied the issue and taken a hard look at the environmental consequences of its decision.” Meister v. U.S. Dep’t of Agric. , 623 F.3d 363, 377 (6th Cir. 2010). The Corps reasonably complied with its own regulations and did not act arbitrarily and capriciously.
With respect to the plaintiff’s second claim on appeal, namely that the mitigation plan violates the Clean Water Act, the Corps did not act arbitrarily and capriciously in determining that the compensatory mitigation plan proposed by Leeco in its 2011 permit application complied with the requirements of the § 404(b)(1) Guidelines.
First, the Corps was entitled to rely on the Eastern Kentucky Stream Assessment
Protocol (“EKSAP”), which provides for an assessment of functional stream quality in
determining whether a mitigation plan sufficiently replaces the aquatic functionality of
lost streams. According to the Corps’s decision document, the EKSAP is the product
of federal and state interagency initiative and is designed to “assess[] the relative quality
of a particular headwater stream ecosystem based on observations of regional indicator
data concerning its physical[,] . . . chemical[,] . . . and biological . . . characteristics and
provides an estimate of the integrity of the system as a whole.” The use of this type of
metric complies with regulations and is consistent with relatively recent changes in
mitigation plan policy. In 2008, the Corps and the EPA passed regulations confirming
the validity of—indeed, a preference for—functional metrics designed “to replace lost
aquatic resource functions.”
See
33 C.F.R. § 332.3(f)(1); Compensatory Mitigation for
Losses of Aquatic Resources, 73 Fed. Reg. 19,594, 19,601 (Apr. 10, 2008).
[6]
The fact
that EKSAP uses structural proxies rather than direct measurements of aquatic function
is consistent with the new regulations, since the changes in structural conditions
rationally relate to improvements in functionality.
See
33 C.F.R. § 332.3(f)(1). This
particular plan employs the “natural channel design” strategy of mitigation, in which
habitat structures in the stream will “give support to more species diversity” and a larger
riparian buffer zone of vegetation along the stream will “ensure a more productive
stream by means of shading and as a food source.” And the use of structural proxies that
rationally predict aquatic functionality based on objective, measurable structural
qualities of the stream satisfies the regulations’ command that “[p]erformance standards
must be based on attributes that are objective and verifiable.”
Id
. § 332.5(b). In the end,
given the various interrelated factors and possible assessment metrics that could be used
in a mitigation plan, the choice of mitigation performance standards requires the exercise
of complex scientific judgment and deference to the Corps’s expertise is appropriate.
See Marsh v. Or. Natural Res. Council
,
Lastly, the Corps permissibly based its estimation of an eighty-percent likelihood
of success on its experience with other mitigation projects. Without any evidence that
the Corps’s ballpark figure is way off the mark, this court can defer to the expertise of
the Corps in fulfilling its requirement to “assess the likelihood for ecological success and
sustainability” in evaluating a compensatory mitigation plan. 33 C.F.R. § 332.3(a)(1).
The sources cited by the plaintiff do not persuasively demonstrate that the mitigation is
likely to be unsuccessful, since the pessimistic assessments of mitigation they cite are
from reports over ten years old, which came out before the Corps’s adoption of the
functional “watershed approach” in 2008.
E.g
., Compensatory Mitigation for Losses of
Aquatic Resources,
In short, the Kentucky Division of Mine Permits, to which Congress has granted exclusive jurisdiction over the regulation of surface mining in Kentucky, approved Leeco’s surface mining operation. Meanwhile, the Corps of Engineers granted a secondary permit related only to the filling of jurisdictional waters. The Corps, in light of the entire project’s approval under the more comprehensive SMCRA, did not abuse its discretion in limiting the scope of its NEPA review to environmental consequences closely related to the filling of jurisdictional stream beds. Where an existing state regulatory scheme already governs surface coal mining, NEPA does not require the Corps to expand its review to the environmental consequences of the entire mining operation. The Corps also did not abuse its discretion in approving the mitigation plan provisions requiring the improvement of other local streams, since those provisions were rationally designed to ensure that there is not a net loss of aquatic function in the mine location’s watershed.
The district court’s judgment is AFFIRMED.
Notes
[1]
The district court accurately described the kind of surface mining to be conducted:
Surface mining entails the excavation of rock to expose and remove coal seams. Once
the coal is extracted, as much as possible of the excavated rock (called “spoil”) is
returned to the mine site in an attempt to restore natural ground contour. However,
because the loosening of the rock and soil and incorporation of air causes the spoil to
“swell” to occupy more volume, much cannot be returned to the area where it was
blasted. Rather, the spoil is placed in “fills” located in adjacent hollows (“hollow fills”
or “valley fills”) that, due to the landscape of the Central Appalachian region, often
contain headwater streams. . . . [S]urface mining laws require that the drainage from
both hollow fills and “mine through” areas pass through sediment control ponds or
structures before being discharged into downstream waters. Each of these activities is
subject to a series of overlapping permits and certifications involving both federal and
state agencies . . . .
Kentuckians for the Commw. v. U.S. Army Corps of Eng’rs
, No. 3:12-CV-00682,
[2] The plaintiffs argue that the Corps authorized actual surface coal mining, beyond the mere filling of stream beds, because Leeco’s permit states that the Corps “authoriz[es] your company’s proposal to construct . . . various ‘mine throughs.’” This argument misconstrues the specialized language used in the permit and disregards the context in which the permit is granted. As the Corps explained at oral argument, “mining through” is the process of scraping away the surface of an ephemeral stream bed, extracting the coal seams that are then exposed, and refilling the stream bed. The Corps did not authorize mining per se, but only the discharges into streams that are a necessary part of a “mine through.” That is, the Corps authorized “mining through” because of the activity’s impacts on stream beds and not because of its purpose to extract coal. Furthermore, the Corps does not even have the authority to authorize surface coal mining, and the plaintiffs do not argue that the permit exceeded the scope of § 404.
[3]
This court must defer to the Corps’s interpretations of its own NEPA implementing regulations.
See Ohio Valley Envtl. Coal. v. Aracoma Coal Co.
,
[4]
The plaintiffs’ reliance on 42 U.S.C. § 4332(2)(D) for the assertion that “[t]he Corps cannot rely
on Kentucky’s overlapping SMCRA jurisdiction to refuse to consider the full environmental impact of a
mine it regulates” is misplaced.
See
Appellants’ Reply Br. at 7. That statute does not involve the kind of
situation presented in this case. That statute only involves a situation in which there is “a major Federal
action
funded under a program of grants to States
” and in which the environmental impact statement is
“
prepared by a State agency or official
.” 42 U.S.C. § 4332(2)(D) (emphasis added). That provision
merely “allows a state agency to prepare an [environmental impact statement] for a federal agency if
certain conditions are met.”
Macht v. Skinner
,
[5] The reference to “upland areas” was to parts of the valley outside of the stream beds that would be filled. See id. at 186–87. The state SMCRA regulator had authorized the use of “valley fills,” while the Corps authorized only the filling of stream beds, which constituted only a portion of the valley to be filled.
[6] We need not resolve the parties’ dispute about whether these 2008 regulations apply to the Leeco permit application. The dispute arose because the original 2007 application would not be covered under the regulations, and there were significant revisions to the application before its final form took shape in 2011. This dispute presents a question requiring the interpretation of interrelated procedural regulations. Ultimately, however, the Corps assessed the application as though the 2008 mitigation regulations applied, and we affirm on that assumption.