MINGO LOGAN COAL COMPANY INC., Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
Civil Action No. 10-0541 (ABJ)
United States District Court, District of Columbia.
Signed September 30, 2014
Thus, “in light of the total circumstances of the case,” Aka, 156 F.3d at 1291, the Court finds that plaintiff‘s evidence is sufficient to allow a reasonable factfinder to conclude that Muse could have fulfilled the essential functions of the jobs for which he applied, and that defendant discriminatorily failed to hire him on the basis of his disability. Therefore, defendant‘s motion for summary judgment will be denied.
CONCLUSION
Because there are genuine issues of material fact in dispute on these issues, the Court will deny defendant‘s motion for summary judgment. A separate order will issue.
its pleadings, however, and so the Court does not factor it into its judgment here.
Cynthia J. Morris, Kenneth C. Amaditz, U.S. Department of Justice, Washington, DC, for Defendant.
MEMORANDUM OPINION
AMY BERMAN JACKSON, United States District Judge
In 2010, plaintiff Mingo Logan Coal Company, Inc. filed this lawsuit, challenging the Environmental Protection Agency‘s (“EPA“) decision to withdraw its specification of two locations designated in Mingo Logan‘s Clean Water Act permit as disposal sites for the fill material generated by the operation of the Spruce No. 1 Mine in West Virginia. See Am. Compl. [Dkt. # 16]. Mingo Logan claimed that EPA exceeded its statutory authority under section 404(c) of the Clean Water Act (“CWA“),
On March 23, 2013, the Court granted summary judgment in favor of Mingo Logan, finding that EPA did not have the authority under section 404(c) to act after a permit had been issued, and that under the CWA, only the Corps had the power to revoke or modify a valid permit. Mingo Logan Coal Co. v. EPA, 850 F.Supp.2d 133 (D.D.C.2012). EPA appealed, and the D.C. Circuit held that EPA did have the authority to rescind a specification even after the permit to discharge was in hand. Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C.Cir.2013), cert. denied, --- U.S. ---, 134 S.Ct. 1540, 188 L.Ed.2d 557 (2014). The Court of Appeals then remanded the case for consideration of Mingo Logan‘s remaining APA counts, id. at 616, and the parties’ cross-motions for summary judgment on those issues are now ripe for determination. Pl.‘s Mot. for Summ. J. [Dkt. # 26]; Pl.‘s Statement of P. & A. in Supp. of Pl.‘s Mot. for Summ. J. (“Pl.‘s Mot.“) [Dkt. # 26]; Def.‘s Mot. for Summ. J. [Dkt. # 46]; Def.‘s Mem. in Supp. of Def.‘s Mot. for Summ. J. & in Opp. to Pl.‘s Mot. for Summ. J. (“Def.‘s Mot.“) [Dkt. # 46].
Because the Court finds that the decision set forth and explained in the Final Determination of the U.S. Environmental Protection Agency Pursuant to § 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, West Virginia (“Final Determination“), AR010103-201, was reasonable, supported by the record, and based on considerations within the agency‘s purview, it will grant EPA‘s motion for summary judgment and
BACKGROUND
I. Statutory Background
The Clean Water Act (“CWA“), is the primary federal statute that seeks to regulate water pollution.
A. Section 401.
Under section 401 of the CWA, a permit applicant that seeks to “conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters,” must “provide the permitting agency a certification from the [s]tate in which the discharge originates or will originate” that certifies that the discharge under the applied-for permit is consistent with the state‘s water quality standards.
B. Section 402.
Section 402 authorizes the Administrator of EPA (“Administrator“) to issue a permit for the discharge of any pollutant, except for the dredged and fill material covered by section 404. Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 266 (2009), quoting
A state administering its own section 402 permit program must send the Administrator “a copy of each permit application received ... and provide notice to the Administrator of every action related to the consideration of such permit application, including each permit proposed to be issued by such [s]tate.”
C. Section 404.
Section 404 of the CWA deals specifically with the discharge of dredged or fill
But Congress assigned EPA a significant role to play in the section 404 permitting process as well. First, while a “disposal site shall be specified for each such permit” by the Corps,
After the Corps conducts its analysis under the section 404(b)(1) Guidelines, it publishes its written determination of the anticipated “effects of a proposed discharge of dredged or fill material on the physical, chemical, and biological components of the aquatic environment.”
But the statute also assigns EPA a second role that gives rise to this case. Section 404(c) grants EPA the authority to “veto” a decision made by the Corps to specify a particular disposal site in a permit.
The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and ... deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines ... that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including
spawning and breeding areas), wildlife, or recreational areas.
- The Regional Administrator publishes a “proposed determination” to prohibit or withdraw the specification of a defined area as a disposal site, or to deny, restrict or withdraw the use of any defined area for the discharge of any particular dredged or fill material;
- The Regional Administrator issues “recommendation to the Administrator for determination as the specification of a defined area as a disposal site;” and
- The Administrator publishes its “final determination to affirm, modify or rescind the recommended determination after consultation with the Chief of Engineers or with the [s]tate.”
II. Factual Background3
Plaintiff Mingo Logan “operates a coal mine in West Virginia known as the Spruce No. 1 Mine.” Am. Compl. ¶ 1. The Spruce No. 1 Mine is “among the largest individual surface mines ever authorized in West Virginia,” and if “fully constructed, the project [would] disturb approximately 2,278 acres (about 3.5 square miles) and bury approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil.”4 AR010108.
In order to operate the Spruce No. 1 Mine, Mingo Logan was required to obtain several permits.5 Mingo Logan‘s predecessor6 initiated the application process in 1998. Ultimately, the company obtained a CWA section 402 permit from West Virgi-
Mingo Logan also submitted an application to the Corps to obtain a CWA section 404 permit to discharge dredged or fill material into the Right Fork of Seng Camp Creek as well as the Pigeonroost Branch, Oldhouse Branch, and White Oak Branch streams.7 AR003052-70. The application was subject to review by the appropriate agencies for approximately ten years, and the following events took place during that period:
- In 2002, the Corps issued a draft Environmental Impact Statement (“EIS“), evaluating the Spruce No. 1 Mine project and the requested section 404 permit. AR010120.
- In 2002, EPA sent a letter to the Corps in response to the draft EIS. Id.; see also AR019485-90. EPA noted that its review of the EIS “found gaps in the analyses of the mine and related adverse environmental impacts,” and it “recommended additional evaluation to support the analysis of less environmentally damaging alternatives.” AR010120; see also AR019489. More specifically, EPA noted that it “was particularly concerned by the lack of information regarding the nature and extent of impacts to the high quality streams that would be buried under valley fills.” AR010120; see also AR019489.
- In 2005, Mingo Logan took over operations of the Spruce No. 1 Mine, and it applied for and obtained a section 401 certification from West Virginia. AR020924-28. West Virginia granted the certification—subject to Mingo Logan‘s compliance with a mitigation agreement—after it concluded that Mingo Logan‘s proposed discharge of dredged or fill material complied with its water quality standards. Id.
- In 2006, the Corps issued a revised draft EIS for public comment, and EPA once again expressed its concerns about the impacts of the project in a comment letter. AR012991-013388; see also AR008312-29. Specifically, EPA expressed the following concerns: (1) the “potential adverse impacts to water quality (specifically, the potential to discharge selenium and the known association of similar mining operations with degradation of downstream aquatic communities);” (2) “uncertainties regarding the proposed mitigation;” (3) “the need for additional analysis of potential environmental justice issues;” and (4) “the lack of a study related to the cumulative effects of multiple mining operations within the Little Coal River watershed.” AR010120-21; see also AR008312-29.
- On September 22, 2006, the Corps issued a final EIS, and EPA again submitted a comment letter that expressed concerns about the adverse impacts and gaps in Mingo Logan‘s mitigation plan, noting that many of
- In December 2006, representatives from the Corps and EPA continued to communicate and work together concerning the Spruce No. 1 Mine project. AR023084-109, 023657-62, 024424, 024619-25, 024637-43.
- On January 22, 2007—after over ten years of study—the Corps issued Mingo Logan a section 404 permit, despite EPA‘s lingering concerns. AR025763-77.
Almost immediately after the section 404 permit issued, “a number of environmental groups, represented by Ohio Valley Environmental Coalition, filed a complaint against the Corps ... challenging its decision to issue the permit.” AR010121. Mingo Logan reached an agreement with the environmental groups who were the plaintiffs in that litigation, and in early 2007, it commenced limited operations at Spruce No. 1 Mine despite the ongoing litigation. Id.
Then, on September 3, 2009, approximately two and half years after the Corps issued Mingo Logan a section 404 permit, EPA asked the Corps to use its discretion under
The Corps rejected EPA‘s request. AR012781-88.
In response, the Regional Administrator of EPA Region III proposed to invoke the agency‘s authority under section 404(c), and on April 2, 2010, EPA published a Proposed Determination to withdraw the specification of Oldhouse Branch and Pigeonroost Branch as disposal sites in Mingo Logan‘s section 404 permit. AR010111; see also AR000004-8. EPA held a public hearing, and it received more than 100 oral comments and more than 50,000 written comments, both in support of and in opposition to the Proposed Determination. AR010111; see also AR000004-8. On September 24, 2010, EPA Region III published a Recommended Determination to withdraw the specification of Pigeonroost Branch and Oldhouse Branch. AR010111; see also AR009888-970.
Pursuant to its regulations and after receipt of the Proposed Determination, EPA Headquarters gave all interested parties—including Mingo Logan and the owners of the mineral rights linked to the Spruce No. 1 Mine—an opportunity to present any corrective actions that might be taken to avoid the need for revocation of the specification of the disposal sites. AR010124-25. After reviewing the responses, see AR010125-27, EPA determined that it was necessary to exercise its veto authority under CWA section 404(c), and on January 13, 2011, it issued its Final Determination purporting to “withdraw the specification of Pigeonroost Branch, Oldhouse Branch and their tributaries ... as a disposal site for dredged or fill material in connection with construction of the Spruce No. 1 Surface Mine.”8 AR010103-201.
In the Final Determination, EPA provided two alternative bases on which it rested its decision to revoke the specified disposal sites: (1) the direct impacts that
III. Procedural Background
Mingo Logan filed this case in response to EPA‘s Final Determination.9 See Am. Compl. In the fourteen-count amended complaint, Mingo Logan alleged: (1) that EPA lacked statutory authority under section 404(c) to withdraw a site specification after the Corps issued a permit (Count I); and (2) that the Final Determination was arbitrary, capricious, or otherwise not in accordance with the law in violation of the APA (Counts II-XIV). Id. ¶¶ 220-343.
On March 23, 2012, this Court granted Mingo Logan‘s motion for summary judgment on Count I and denied EPA‘s cross-motion for summary judgment, holding that EPA did not have statutory authority to withdraw a site specification once the Corps issued a permit. See Mingo Logan, 850 F.Supp.2d at 134. On appeal, the D.C. Circuit held that EPA may exercise its section 404(c) veto authority after a permit has issued, and it remanded the case for consideration of Mingo Logan‘s remaining counts. See Mingo Logan, 714 F.3d at 616.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and evidence show that “there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.”
Under the APA, a court must “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”
ANALYSIS
At this juncture, the Court must determine whether EPA‘s determination that the discharges authorized by Mingo Logan‘s section 404 permit would cause unacceptable adverse effects was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
To resolve Mingo Logan‘s APA challenge to the Final Determination, the Court “must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.‘” State Farm, 463 U.S. at 43, quoting Bowman Transp., Inc. v. Ark-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974).
Normally, an agency [action] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider any 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. In conducting its review, the Court should not “rubber-stamp the agency decision;” it must instead “engage in a ‘substantial inquiry’ into the facts, one that is ‘searching and careful.‘” Ethyl Corp. v. EPA 541 F.2d 1, 34-35 (D.C.Cir.1976), quoting Citizens to Preserve Overton Park, 401 U.S. at 415. At the same time, “[a]lthough this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Bowman Transp., 419 U.S. at 285, quoting Citizens to Preserve Overton Park, 401 U.S. at 416 (internal quotation marks omitted). Applying that standard here, the Court finds that
I. EPA‘s decision to revoke the specification of Pigeonroost Branch and Oldhouse Branch as disposal sites was reasonable and supported by section V.C. of the Final Determination.
In section V.C. of the Final Determination, EPA explained that the discharge of fill material into Pigeonroost Branch and Oldhouse Branch would cause “unacceptable adverse impacts to wildlife and wildlife habitat, including the naturally occurring macroinvertebrate community, salamander and other herpetofauna, fish, and water-dependent birds.”11 Def.‘s Statement of Facts ¶ 23 [Dkt. # 46-1], citing AR010109, 010147-75. It noted that the discharge of the fill would “bury” Pigeonroost Branch and Oldhouse Branch; eradicate the wildlife living in those streams; eliminate habitat for wildlife depending on these streams; and adversely impact wildlife within the watershed. Id. ¶¶ 24-25; see also AR010149. The ultimate result would be “[t]he destruction of 6.6 miles of high quality stream habitat.”
Mingo Logan challenges that conclusion, arguing that section V.C. cannot support the Final Determination for three reasons. First, Mingo Logan contends that EPA must demonstrate that there is substantial new information showing that the fill sites would have unacceptable adverse effects in order to act after a permit has been issued, and that EPA has not met its burden to come forward with substantial new information in this case. Pl.‘s Mot. at 40-53; Pl.‘s Reply Statement of P. & A. in Supp. of Pl.‘s Mot. (“Pl.‘s Reply“) at 22 [Dkt. # 64]; Pl.‘s Supplemental Br. in Supp. of Pl.‘s Mot. (“Pl.‘s Supp.“) at 3, 8-10 [Dkt. # 99]. Second, Mingo Logan claims that even if EPA did rely on substantial new information, section V.C. cannot support the Final Determination because EPA failed to demonstrate that Mingo Logan‘s section 404 discharges would actually result in unacceptable adverse effects to wildlife within the footprint of the fill site. Pl.‘s Mot. at 49-53; Pl.‘s Reply at 23-25; Pl.‘s Supp. at 10. And third, Mingo Logan contends that section V.C. cannot support the Final Determination because EPA was required to consider the anticipated results of the mitigation requirements set out in the permit, but it failed to do so here.12
A. EPA does not need substantial new information to exercise its veto authority in this case.
Mingo Logan‘s central argument is that if EPA is permitted to withdraw a specification after the Corps has issued a section 404 permit, it can only do so based upon substantial new information. Pl.‘s Mot. at 43-44; Pl.‘s Supp. at 3, 8-9. Mingo Logan maintains that since none of the information that EPA set forth in the Final Determination is new—let alone “substantial“—the Court should invalidate the Final Determination and enter judgment in favor of Mingo Logan as a matter of law. The Court disagrees and it finds that substantial new information was not needed in this case.
The text of section 404(c) is silent on the issue of whether EPA must have substantial new information when exercising its veto authority after a permit issues. Cf. Newport Galleria Grp. v. Deland, 618 F.Supp. 1179, 1182 (D.D.C.1985) (noting that “the statute sets out no threshold requirements for the initiation of section 404(c) proceedings whatsoever“). That section provides:
The Administrator is authorized to prohibit the specification (including the withdrawal of a specification) of any defined area as a disposal site, ... whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary [of the Army Corps of Engineers]. The Administrator shall set forth in writing and make public his findings and reasons for making any determination under this subsection.
guidelines discussion does not form an independent basis on which the Final Determination rests. Furthermore, EPA‘s own regulations require it to consider the relevant portions of the guidelines when deciding whether a discharge will have an unacceptable adverse effect,
Mingo Logan recognizes that there is no language expressly limiting EPA‘s post-permit authority to be found in section 404(c).14 But it points to the preamble with which EPA introduced its 1979 section 404(c) regulations as well as the APA‘s prohibition on arbitrary and capricious conduct as support for its claims that EPA must have substantial new information if it seeks to exercise its veto power after the Corps has issued the permit. Pl.‘s Mot. at 43-44; Pl.‘s Reply at 22; Pl.‘s Supp. at 3, 8-9. But these sources do not restrict the agency‘s authority under the statute.
When EPA issued its own regulations for the implementation of the CWA, it offered the public the following assurances in the preamble to the rules:
EPA agrees with the suggestion that it would be inappropriate to use 404(c) after issuance of a permit where the matters at issue were reviewed by EPA without objections during the permit proceeding, or where the matters at issue were resolved to EPA‘s satisfaction during the permit proceeding, unless substantial new information is brought to the Agency‘s attention after issuance.
44 Fed.Reg. 58,076, 58,077 (Oct. 9, 1979). And EPA specifically pointed to this statement of policy in the earlier proceedings in this case when it argued that the Court should defer to EPA‘s interpretation of section 404(c) to authorize post-permit revocation of the specification of a disposal site. See Def.‘s Mot. at 37; see also Mot. Hr‘g Tr. at 67 (November 30, 2011) (counsel for EPA discussing the substantial new information requirement in the preamble: “I think the statute and the regulations do not provide that limitation. However, EPA‘s policy adopts that limitation and EPA has, in fact, complied with that policy in the past and in this case.“). As a result, one could conclude that there are equitable grounds to find that the policy statement should be enforced in this case.
But in the preamble, EPA stated that it would be constrained by the requirement of substantial new information in the future if it sought to act after a permit had been issued but it had raised no objections during the permit application process, or its objections had been resolved to its satisfaction during that process.15 And neither of those situations are present here.
The Court also cannot conclude—as Mingo Logan urges—that EPA‘s concerns were resolved to its satisfaction prior to the issuance of the section 404 permit by the Corps. As counsel for Mingo Logan continuously argued at the motions hearing, EPA “raised every concern that they now raise” in the Final Determination during the permit review process. Mot. Hr‘g Tr. (“July 30 Hr‘g Tr.“) at 14-15 (July 30, 2014); see also AR010103-201, 012754-58, 022792-809, 023068-71 (documents raising EPA‘s concerns). But Mingo Logan does not point to anything in the record that reflects that EPA—as opposed to the Corps—was satisfied that those concerns had been addressed.16 Thus, EPA‘s policy statement in the 1979 preamble is not implicated in this case, and it cannot serve as the basis for requiring EPA to have substantial new information in its Final Determination.
Moreover, the APA and general principles of administrative law do not justify requiring EPA to demonstrate that the Final Determination is based on substantial new information. Although the Court agrees that in some cases it might be arbitrary and capricious for an agency to look at the same information it looked at four years before and come to a completely different conclusion, see, e.g., State Farm, 463 U.S. at 42 (“[A]n agency changing its course is obligated to supply a reasoned analysis for the change ....“), this is not one of those cases.
Although Mingo Logan characterizes the events here as an about-face, EPA did not drastically change its position when it issued the Final Determination in 2011. As demonstrated above, EPA was concerned about Mingo Logan‘s proposed section 404 discharges from day one, and those same concerns supply the grounds for the Final Determination. See AR010103-201, 012754-758, 022792-809, 023068-071; see also July 30 Hr‘g Tr. at 20 (counsel for Mingo Logan: “They have the same concerns. They recognized that the issues are out there.“); id. at 30 (“[T]here‘s nothing new with respect to mitigation at all.“).
Mingo Logan points to an email that an EPA official sent to the Corps near the end of the permit application process. In it, William J. Hoffman, Director of the EPA Office of Environmental Programs Environmental Assessment and Innovation Division, said that EPA had “no intention of taking our Spruce Mine concerns any further from a Section 404 standpoint.” Email from Hoffman, AR023085. Although the agency‘s decision to exercise its veto authority in 2011 after it declined to do so in 2007 can be viewed as a change in position that fairly requires some explanation, it is not so drastic a change as to require a heightened standard of scrutiny, such as the “substantial new information” test that Mingo Logan proposes here. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009) (“[O]ur opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.“); see also id. at 519 (“[T]he fact that an agency had a prior stance does not alone prevent it from changing its view or create a higher hurdle for doing so.“); Nat‘l Ass‘n of Home Builders v. EPA, 682 F.3d 1032, 1037 (D.C.Cir.2012) (explaining that FCC v. Fox Television Stations, Inc. “dispenses with the petitioners’ complaint that the Amended Renovation Rule merely revisits old evidence and arguments, rather than adduces ‘new data’ or experience“).
First, nothing in section 404(c) requires EPA to issue a formal declaration that it will or will not exercise its veto authority prior to the issuance of a permit, and the Corps is not required to wait for EPA to announce a decision to decline to exercise its section 404(c) authority before it may issue a permit under section 404(a). See
The Supreme Court‘s dicta in Coeur Alaska—that “[b]y declining to exercise its veto, the EPA in effect deferred to the judgment of the Corps,” 557 U.S. at 269—does not change that conclusion. Neither the facts of Coeur Alaska nor the question before the Court implicated EPA‘s section 404(c) authority. See id. at 261. Moreover, the Court‘s use of the word “defer” supports the conclusion that EPA‘s failure to exercise its veto prior to the issuance of the permit was not a definitive statement approving the permit or a substantive find-
Mingo Logan‘s reliance on Alliance to Save the Mattaponi v. U.S. Army Corps of Eng‘rs (“Alliance I“), 515 F.Supp.2d 1 (D.D.C.2007), as support for its argument that EPA changed positions in 2011 and that its decision should be subject to heightened scrutiny is also misplaced. See Pl.‘s Mot. at 44 n.32. Although that court found under the facts of that case that EPA‘s decision to forego the exercise of its veto authority was a final decision for purposes of the APA and was therefore subject to judicial review, Alliance I, 515 F.Supp.2d at 8-9, that decision predated the opinion of the Court of Appeals in this case, and in any event, it does not automatically follow that a later veto will reflect a change in position in every case.
In sum, EPA‘s decision in 2011 to veto the Corps’ specification of Pigeonroost Branch and Oldhouse Branch as disposal sites was not an abrupt or unexplained “about-face” from an earlier decision. The record demonstrates that EPA harbored consistent misgivings throughout the permit application process, and those concerns ultimately led it to exercise its authority. See generally AR010103-201 (Final Deter-
B. EPA is entitled to deference with respect to its conclusion that the section 404 discharges would have unacceptable adverse effects on the wildlife within the fill site.
Mingo Logan next argues that section V.C. of the Final Determination cannot support EPA‘s decision to revoke the specification of Pigeonroost Branch and
EPA‘s authority to veto the specification of a disposal site under section 404(c) is triggered “whenever [the Administrator] determines ... that the [proposed] discharge[s] of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”
Here, EPA explained in section V.C. of the Final Determination that the proposed discharges of dredged and fill material into Pigeonroost Branch and Oldhouse Branch would have unacceptable adverse effects on the wildlife itself within the footprint of the proposed fill site—specifically salamanders, macroinvertebrates, fish, and the Louisiana Waterthrush—as well as on the habitat that wildlife needs to survive. AR010149-52; see also Def.‘s Mot. at 33 (arguing that Mingo Logan ignores that the Final Determination also addressed how discharges would cause a “loss of habitat, which is a critical factor under EPA‘s regulations“). It explained that the proposed discharges would destroy “‘6.6 miles of high quality stream habitat,’ which represents 5.6 percent of the total stream length in the Headwaters Spruce Fork sub-watershed ‘where there is little remaining high quality stream habitat,‘” and that destruction of this habitat would cause ““a loss of regional biodiversity and the broader ecosystem functions” that the otherwise diverse wildlife would have provided if their habitat was not destroyed. Def.‘s Mot. at 32, quoting AR010149. EPA explained that even if the burial of wildlife may be deemed to be acceptable in some other location, the eradication of wildlife within the 6.6 miles of affected streams here was unacceptable because Pigeonroost Branch and Oldhouse Branch are occupied by such a large number and wide variety of species, AR010151-52 (“Within the streams and riparian areas of the project area, over 84 taxa of macroinvertebrates are documented to exist, as well as up to 46 species of reptiles and amphibians, 4 species of crayfish, 5 species of fish and at least one water-dependent bird species.“), and the “streams are some of the last, rare and important high quality streams in the watershed.” AR010152. The agency also pointed to the sheer size of the proposed fills, AR010149, and to the fact that in its judgment, the mitigation measures called for in the section 404 permit would not effectively offset the adverse
At the outset, the Court must recognize that EPA‘s analysis of the effects of the section 404 discharges and its conclusion that those effects are unacceptable are entitled to deference. Fox, 556 U.S. at 513-14 (citations omitted) (“We have made clear ... that ‘a court is not to substitute its judgment for that of the agency,’ and should ‘uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.’ “); Bowman Transp., 419 U.S. at 285; Alliance to Save the Mattaponi v. U.S. Army Corps of Eng‘rs (“Alliance II“), 606 F.Supp.2d 121, 127 (D.D.C.2009) (“[W]hen an agency‘s action relies on scientific and technical information touching upon the agency‘s area of expertise, a court is particularly deferential.“). Congress entrusted EPA with the task of protecting the environment, and the Court should not substitute its judgment for EPA‘s. As long as EPA‘s conclusion that discharge of dredged and fill material would have an unacceptable adverse effect on wildlife within the fill site is reasonable and supported by the record, the Court must defer and the Final Determination is valid. State Farm, 463 U.S. at 43; Alliance II, 606 F.Supp.2d at 127, quoting Citizens to Preserve Overton Park, 401 U.S. at 416 (“The court must ... conduct a ‘searching and careful’ review of the record to establish that the agency‘s decision is rational and based on consideration of all relevant factors.“).
Applying those principles here, the Court finds that EPA‘s discussion in section V.C. demonstrates that it “examine[d] the relevant data,” and it “articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘” State Farm, 463 U.S. at 43, quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). As a result, EPA‘s conclusion in section V.C. that the proposed section 404 discharges would have unacceptable adverse effects on the wildlife is reasonable and supported by the record, see AR010149-52, and section V.C. therefore supports the Final Determination.
Mingo Logan‘s arguments do not warrant a contrary conclusion. First, its contention that the eradication of wildlife within in a fill site is “routine” because it occurs whenever fill material is discharged into the water and is an effect that Congress approved when it found that the discharge of fill was permissible under the CWA and SCMRA, July 30 Hr‘g Tr. at 26, does not demonstrate that EPA‘s decision here was unreasonable. First, that argument ignores the fact that Congress built the environmental effect veto right into the same statute. And second, section V.C. lists several grounds—such as the fact that Pigeonroost Branch and Oldhouse Branch
Mingo Logan‘s second ground for why the Court should find EPA‘s conclusion in section V.C. to be unreasonable—that it is entirely speculative—fares no better. See Pl.‘s Mot. at 51-53; Pl.‘s Reply at 23-24. The parties dispute whether certain fish live within the fill site, and they both point to different studies to support their positions. See Pl.‘s Mot. at 51-52; Pl.‘s Reply at 24; Def.‘s Mot. at 35-36; Def.‘s Reply Mem. in Supp. of Def.‘s Mot. (“Def.‘s Reply“) at 11-12 [Dkt # 72]. But this is precisely the type of dispute that courts are supposed to avoid under the principles of administrative law; where there are questions of science, such as which study deserves more credence than another, the agency is entitled to deference. State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (explaining that the Court “is not to substitute its judgment for that of the agency“); Alliance II, 606 F.Supp.2d at 127-28, quoting Occidental Eng‘g Co., 753 F.2d at 769-70 (“[I]t is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.‘“). As a result, the Court cannot find that EPA‘s conclusions in section V.C. are unreasonable even though Mingo Logan advances some studies that support a contrary position.23 See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 201 (4th Cir.2009), quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989), 109 S.Ct.
Finally, there is no support for the argument that EPA cannot rest the Final Determination on a loss of habitat. Pl.‘s Reply at 26. EPA‘s regulations define “unacceptable adverse effects” to require the agency to consider the overall impact on the aquatic ecosystem, not just the particular species of wildlife that will be destroyed by the placement of the fill. And the regulations specifically state that EPA should consider effects on habitat. See
C. EPA considered the mitigation requirements in Mingo Logan‘s section 404 permit and its conclusion that they were insufficient is entitled to deference.
Mingo Logan‘s final challenge to section V.C. is that EPA is required to consider
The Court agrees that EPA was bound to consider the mitigation requirements in Mingo Logan‘s section 404 permit in this case. In State Farm, the Supreme Court explained that an agency‘s action is arbitrary and capricious if it fails to take into account “an important aspect of the problem.” 463 U.S. at 43. And EPA‘s own regulation instructs that, “[i]n evaluating the unacceptability of such impacts, consideration should be given to the relevant portions of the section 404(b)(1) guidelines,”
But the record reveals that EPA did in fact consider the permit‘s mitigation requirements in the Final Determination, and it found them insufficient to overcome the unacceptable adverse effects denoted in section V.C. (and section V.D.). See AR010185-92. EPA provided a detailed explanation for why it believed the mitigation to be insufficient, which shows that it considered relevant data and linked its conclusions to the facts in the record. See AR010188-91; see also infra. EPA‘s conclusion regarding Mingo Logan‘s mitigation measures, which turns on scientific predictions within EPA‘s expertise, is therefore entitled to deference. See Amoco Oil Co. v. EPA, 501 F.2d 722, 741 (D.C.Cir.1974) (“Where [EPA‘s] regulations turn on predictions dealing with matters on the frontiers of scientific knowledge, we will demand adequate reasons and explanations but not ‘findings’ of the sort familiar from the world of adjudication.“).
Mingo Logan‘s remaining arguments do not alter that conclusion. First, Mingo Logan contends that because the United States defended similar mitigation requirements in Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d at 177, EPA is judicially estopped from challenging the adequacy of those requirements here. Although “[c]ourts may invoke judicial estoppel [w]here a party assumes a certain position in a legal proceeding, ... succeeds in maintaining
First of all, in Ohio Valley, it was the Corps—not EPA—that concluded that the mitigation requirements in the permit met the section 404(b)(1) Guidelines and defended those requirements in court. 556 F.3d at 204. But here, it is EPA that is challenging the notion that those mitigation measures are satisfactory, which is precisely what EPA is authorized to do under section 404(c). As a result, while the Fourth Circuit was bound to defer to the Corp in Ohio Valley, the Court in this case must defer to EPA‘s position that they are not sufficient in the context of Spruce No. 1 Mine. Moreover, while both cases involve some overlap with certain mitigation requirements, EPA‘s position in this case challenges additional issues, such as stream misclassification, not discussed in Ohio Valley. And the challenged permits in Ohio Valley involved discharges unrelated to the Spruce No. 1 Mine that Mingo Logan seeks to operate. See id. at 187.
Second, to the extent that the difference cannot be explained in terms of distinct facts, judicial estoppel is still inappropriate in this case. “[I]t is well settled
And third, Mingo Logan‘s other remaining argument—that EPA failed to adequately explain why the permit‘s mitigation requirements were inadequate—also fails. See Pl.‘s Mot. at 55. As noted above, the Court found that the record contains a reasoned explanation for why EPA finds the mitigation measures in the permit to be inadequate, and therefore that determination is entitled to deference. Mingo Logan‘s specific challenges to EPA‘s mitigation conclusion would require the Court to “undertake comparative evaluations of conflicting scientific evidence,”26 which goes beyond the Court‘s proper role of only “discern[ing] whether the agency‘s evaluation was rational.” See Natural Res. Def. Council, Inc. v. EPA, 824 F.2d 1211, 1216 (D.C.Cir.1987). Consequently, the Court concludes that EPA satisfied the requirement to consider the mitigation measures in Mingo Logan‘s section 404 permit, and it provided a sufficient explanation to justify why, despite those measures, the proposed discharges would have unacceptable adverse effects on wildlife.
Based on the analysis above, the Court finds that EPA is entitled to judgment as a matter of law. EPA‘s conclusion that the discharge of dredged or fill material into Pigeonroost Branch and Oldhouse Branch would cause unacceptable adverse effects—as explained in section V.C.—is reasonable, supported by the record, and within EPA‘s authority to reach. The Court will therefore grant EPA‘s motion for summary judgment and deny Mingo Logan‘s motion for summary judgment.
II. EPA‘s decision to revoke the specification of Pigeonroost Branch and Oldhouse Branch as disposal sites in Mingo Logan‘s section 404 permit was reasonable and supported by section V.D. of the Final Determination.
The Court‘s holding that EPA acted reasonably and lawfully when it revoked the
In section V.D., EPA identified unacceptable adverse effects downstream from the fill sites and the sediment ponds into which the fill water eventually flows. AR010152-75. Specifically, EPA stated:
Unacceptable adverse impacts will also occur to wildlife downstream of the footprint of the fills and sediment ponds. These unacceptable adverse impacts will be caused by removing Pigeonroost Branch and Oldhouse Branch as sources of freshwater dilution and converting them to sources of pollution.... The project as authorized also will create areas of pooled water and increased conductivity, both of which are among the conditions known to be necessary to support harmful blooms of golden algae.... This section identifies increased loads of selenium and [total dissolved solids] (measured as conductivity) that are expected to occur as a result of the discharges of coal overburden as authorized.... These impacts to water chemistry are identified because they will adversely affect the native aquatic and water-dependent wildlife communities in the Spruce Fork watershed....
Id. at AR010152-53.
Mingo Logan claims that section V.D. cannot support the revocation of the specification because downstream effects on water quality are regulated under section 402 of the CWA, not section 404, and West Virginia has assumed responsibility for administering the section 402 permit program within the territory involved. Pl.‘s Mot. at 29-35. Mingo Logan points out that selenium and total dissolved solids (“TDS“) are not “dredged or fill material,” but fall within the category of general pollutants under the CWA, which means they are regulated under section 402, not section 404. See, e.g., Pl.‘s Reply at 15. As a result, Mingo Logan contends that when EPA considered downstream water quality, it premised the Final Determination on factors that Congress did not intend for it to include in the calculus. See State Farm, 463 U.S. at 43.
Second, Mingo Logan argues that to the extent that EPA may consider downstream effects when deciding to revoke a section 404 permit, EPA must use the water quality standards enacted by West Virginia pursuant to section 303 of the CWA. Pl.‘s Mot. at 35-39. Mingo Logan claims that EPA created its own water quality standards here instead, id. at 35, 37, and that it failed to link the unacceptable downstream adverse effects to discharges made pursuant to the section 404 permit.27 Id. at 33-35.
All water that passes over or though the valley fills created by to a section 404 permit, and any pollutants that leach from the fills as the water passes through them, are eventually collected in a sediment pond for treatment. Water may be discharged from those ponds pursuant to a section 402 permit, and the discharged water, even after it has been treated, contains elevated levels of selenium and total dissolved solids (“TDS“), which are considered pollutants under the CWA. The downstream effects on wildlife identified by EPA as being unacceptable in section V.D. of the Final Determination are caused by the discharge from the sediment ponds of water containing elevated levels of the two contaminants. See AR010152-75.
Mingo Logan argues that EPA improperly considered these downstream effects because the water flowing from the sediment ponds is regulated by West Virginia under section 402, and the discharge from the ponds acts as an intervening event that severs EPA‘s authority to regulate discharge of fill material from the mine under section 404(c). July 30 Hr‘g Tr. at 39 (“[EPA is] allowed to look at wildlife downstream as long as there is not an intervening regulatory decision that is made by the state.“). According to Mingo Logan, once the water contaminated by its movement through the valley fills flows into the sediments ponds that are subject to a different regulatory scheme, EPA can no longer consider the effects the water might have on wildlife thereafter. Mingo Logan and amicus curiae Randy C. Huffman, on behalf of the State of West Virginia, contend that EPA has essentially usurped West Virginia‘s regulatory authority under section 402 of the CWA as well as the SCMRA, and that approving its action would be inconsistent with the Supreme Court‘s holding in Coeur Alaska. Pl.‘s Mot. at 29-33; West Virginia Amicus Curiae Br. in Supp. of Pl.‘s Mot. (“W.Va.Br.“) at 14-19 [Dkt. # 53]. The Court disagrees.
As an initial point, the Court notes that—despite Mingo Logan‘s repeated attempt to characterize section V.D. as “regulating” discharges from the sediment ponds that are subject to regulation by West Virginia under section 402—that section does not purport to “regulate” outfall from the sediment ponds. It does not state that Mingo Logan can no longer discharge water from the sediment ponds downstream, and it does not prohibit or manage the upstream discharge of non-fill contaminants into streams that flow into the sediment ponds. Instead, section V.D. merely concludes that the placement of dredged and fill material into Pigeonroost Branch and Oldhouse Branch above the ponds will negatively affect the wildlife below the ponds. See AR010152-75.
Once the issue is properly framed, it follows that EPA‘s consideration of downstream effects does not “usurp” West Virginia‘s regulatory authority under section 402. Although it is true that West Virginia—in issuing the section 402 permit—reached the conclusion that the discharges from the sediment ponds were permissible despite any effects on downstream water quality, EPA‘s separate determination that the same streams could have specific unacceptable consequences did not invade West Virginia‘s regulatory sphere. It is EPA that was charged by Congress, to assess the impact of the fill material on municipal water supplies, shellfish beds and fishery areas, wildlife, and recreational areas. EPA‘s withdrawal
Moreover, neither the text nor the structure of the CWA supports Mingo Logan‘s strained interpretation of what EPA may consider when determining whether section 404 discharges will have an unacceptable adverse effect on wildlife. As noted above, the language of section 404(c) itself is broad, and the statute does not define “unacceptable adverse effect[s].” See
In fact, the text—if anything—supports the opposite conclusion. As noted above, among other things, Congress directed EPA to protect municipal water supplies under section 404(c). See
Furthermore, EPA‘s implementing regulations—which are reasonable and entitled to deference, see Chevron, 467 U.S. at 845; Natural Res. Def. Council, 706 F.3d at 431—provide additional support for the conclusion that EPA may consider downstream effects when conducting a section 404(c) analysis. The regulations define unacceptable adverse effects as “impact[s] on an aquatic or wetland ecosystem,” not simply impacts within the footprint of the fill.
Finally, the Supreme Court‘s decision in Coeur Alaska does not mandate the conclusion that EPA cannot consider downstream effects under section 404(c). In that case, the Supreme Court addressed the intersection of the regulatory schemes governing the issuance of permits under section 402 and section 404 of the CWA. 557 U.S. at 265. It explained that the two schemes are separate and distinct: section 404 governs the discharge of any pollutant that meets the definition of dredged or fill materials, and section 402 governs the discharge of all other pollutants into the navigable waters of the United States. See id. at 273-76. Based on that distinction, the Court held that “when a permit is required to discharge fill material,” the entity seeking to discharge that material is only required to obtain a section 404 permit. Id. at 286. To require the entity to also obtain a section 402 permit would create “[a] two-permit regime [that] would cause confusion, delay, expense, and uncertainty in the permitting process.” Id.
Mingo Logan relies on the “two-permit regime” language as support for its position that EPA cannot consider downstream effects where the water causing those effects passes through a sediment pond that is regulated under section 402 by West Virginia. Pl.‘s Supp. at 4; see also Pl.‘s Mot. at 31-33; Pl.‘s Reply at 16. But that argument stretches the holding in Coeur Alaska too far. First, Coeur Alaska does not address EPA‘s authority under section 404(c) and is therefore not directly controlling in this case. And second, EPA‘s consideration of downstream effects does not run afoul of the Court‘s holding that only one of the two permits is necessary in any given situation. EPA is not requiring Mingo Logan to obtain a section 404 permit to discharge water from the sediment ponds; instead, it concluded that the discharge of dredged and fill material upstream—which falls within the section 404 regulatory scheme, see Coeur Alaska, 557 U.S. at 276 (“[I]f the discharge is fill, the discharger must seek a § 404 permit from the Corps; if not, ... the discharge requires a § 402 permit from the EPA.“)—cannot be permitted in the specified locations because of the negative effect it will cause downstream. As a result, the Court finds that EPA may consider downstream effects when conducting
B. EPA is not bound by West Virginia‘s water quality standards when conducting its section 404(c) analysis.
Mingo Logan next argues that, even if EPA may consider downstream effects, section V.D. cannot lawfully support the agency‘s determination because EPA ignored the standards set by West Virginia and instead created its own ad hoc water quality standards when concluding that discharges into Pigeonroost and Oldhouse Branches would have unacceptable adverse effects downstream. Pl.‘s Mot. at 37; Pl.‘s Supp. at 8. Mingo Logan contends that EPA has no authority to create its own standards and that it is state standards that must be used to define what is “acceptable” in the context of all CWA permitting decisions. Pl.‘s Reply at 20-22; Pl.‘s Supp. at 7-8. Mingo Logan also claims that EPA cannot ignore the fact that West Virginia issued a section 401 certification, which certified that Mingo Logan‘s proposed section 404 discharges would not violate the state‘s water quality standards, Pl.‘s Supp. at 8, because EPA‘s regulations provide that state water quality standards “must be used when ... evaluating proposed discharges of dredged or fill material under § 404.” Pl.‘s Mot. at 38, quoting
First, the Court is not convinced that EPA is actually creating its own water quality standards. Although it may have applied a conductivity measurement not adopted by West Virginia and come to a different conclusion regarding the acceptability of the selenium levels downstream, see W. Va. Br. at 14, EPA‘s discussion in section V.D. did not adopt those measurements or conclusions as general standards to be applied in cases involving downstream impacts.
More importantly, the Court finds that section 404(c) authorizes EPA to determine that merely meeting state water quality standards is insufficient when it is deciding whether section 404 discharges will have unacceptable adverse effects on something other than the water—in this case, wildlife. As noted above, section 404(c) is silent with respect to what constitutes an unacceptable adverse effect and what EPA may consider when deciding if there will be an unacceptable adverse effect. The section is also silent with respect to what standard EPA should use to decide if something is unacceptable. And unlike section 401 and 402, section 404 does not call for consideration of state water quality standards at all. See
Section 401 of the CWA provides that all federal permit applicants must request a certification from the state that the proposed discharges would not violate state water quality standards, see
It is true that EPA‘s implementing regulations recognize that water quality—which is regulated by the state—will be an important consideration when dealing with adverse effects on aquatic wildlife. See
C. EPA demonstrated a causal link between the identified downstream unacceptable adverse effects and the proposed section 404 discharges into Pigeonroost Branch and Oldhouse Branch.
Mingo Logan‘s final reason for why section V.D. cannot support the Final Determination is that EPA failed to show that the section 404 discharges actually caused the downstream unacceptable adverse effects it identified. Pl.‘s Mot. at 34; Pl.‘s Reply at 2, 19; Pl.‘s Supp. at 6. More specifically, Mingo Logan notes that twenty-nine outfalls drain runoff from the Spruce No. 1 Mine, and only three of those outfalls receive water that passes over or through section 404 fill areas. Pl.‘s Reply at 18-19; Pl.‘s Supp. at 6. Mingo Logan points out that section 404 does not authorize EPA to regulate surface mines in general, so section V.D. cannot support the section 404(c) veto unless EPA linked the adverse impacts identified in that section with the section 404 discharges that it is permitted to regulate. Pl.‘s Mot. at 34, citing Ohio Valley, 556 F.3d at 195 (defining the Corps jurisdiction under section 404 as limited to the filling of jurisdictional waters, not the entire valley fill project); Pl.‘s Reply at 19; Pl.‘s Supp. at 6-7, quoting Ohio Valley, 556 F.3d at 195 (assuming “that the entire mine falls within the ambit of section 404 ‘is to effectively read out of the equation the elaborate, congressionally mandated schema for the permitting of
The Court agrees that EPA must show a causal link between the discharges it seeks to prohibit and the unacceptable adverse effects that justify its decision to prohibit them. So the cause of the unacceptable adverse effects must be related to the only thing EPA can regulate under section 404: the discharge of dredged or fill material. This is not to say, however, that EPA must demonstrate with laser precision that the complained about effects stem only from the section 404 discharges. It is enough for EPA to establish some causal link between the discharge of fill material upstream and the projected unacceptable adverse effects, and EPA has done that here.
In section V.D., EPA points to two circumstances to demonstrate the causal link between the discharge of dredged and fill material into Pigeonroost Branch and Oldhouse Branch and the effects on wildlife due to the increased quantities of selenium and conductivity downstream.32 First, EPA‘s analysis established that the presence of the fill material itself would increase the selenium and conductivity levels. EPA compared the proposed discharges into Pigeonroost and Oldhouse Branches with streams that have been impacted in other mining operations, such as Dal-Tex. See AR010154-59, 010161-62. It also looked at the water flowing downstream from the one valley fill that Mingo Logan was permitted to create and that it is currently using to operate Spruce No. 1 Mine. See id. From those comparisons, EPA concluded that the discharge of fill material into Pigeonroost Branch and Oldhouse Branch would increase the selenium and conductivity levels downstream, which in turn cause the unacceptable adverse effects to aquatic wildlife in the region. That conclusion is reasonable, supported by the record, and entitled to deference. See Ohio Valley, 556 F.3d at 201, quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103 (1983) (“In matters involving complex predictions based on special expertise, ‘a reviewing court must generally be at its most deferential.‘“).
Moreover, EPA demonstrated a causal link between the proposed section 404 discharges into Pigeonroost and Oldhouse Branches and the unacceptable adverse effects to wildlife downstream by reframing the problem as one of a “loss of freshwater dilution” as opposed to increased contamination. AR010159-60. Although Mingo Logan is correct that the loss of freshwater dilution argument is simply another way of explaining the contaminants theory, reframing the issue as one involving dilution helps to clarify the causation link. Instead of debating whether the increased selenium or conductivity was the product of the section 404 discharges specifically or some other aspect of the mine, focusing on the loss of freshwater dilution establishes that the section 404 discharges do—at least to some extent—cause the downstream consequences listed in section V.D. because the water downstream will be less dilute, with more contaminants in it, when the volume of clean, diluting water decreases. As a result, the Court finds that EPA reasonably demonstrated that the proposed discharges would cause the
As explained above, the Court finds that EPA may consider downstream effects under section 404(c), that it may use stricter standards than those set as the state‘s water quality standards, and that, in this case, EPA successfully demonstrated that the unacceptable adverse effects identified in section V.D. would be caused by the proposed section 404 discharges into Pigeonroost Branch and Oldhouse Branch. Section V.D. may therefore serve as an independent basis on which to rest EPA‘s Final Determination that specification of the two streams in Mingo Logan‘s section 404 permit must be revoked. EPA is therefore entitled to judgment as a matter of law.
CONCLUSION
Because the Court finds that EPA‘s decision to revoke the specification of Pigeonroost Branch and Oldhouse Branch as disposal sites for the discharge of dredged or fill material generated in connection with the Spruce No. 1 Mine, as explained in the Final Determination, was reasonable, supported by the record, and based on considerations within EPA‘s purview, it will grant EPA‘s motion for summary judgment and deny Mingo Logan‘s motion for summary judgment. A separate order will issue.
DEFENDERS OF WILDLIFE, et al., Plaintiffs,
v.
Sally JEWELL, Secretary, U.S. Department of the Interior, et al., Defendants, and
Susan Combs, Comptroller of Public Accounts for the State of Texas, et al., Intervenor Defendants.
Civil Action No. 13-0919 (RC)
United States District Court, District of Columbia.
Signed September 30, 2014
Notes
- The mitigation plan is based on a “misclassification of impacts to perennial and intermittent streams, thereby resulting in an insufficient baseline from which to design adequate stream compensation.” AR010188.
- The mitigation plan is based on an “inadequate functional assessment of the impacted resources” because “the baseline assessment of the existing and impacted streams on the site missed and misclassified well over twenty thousand linear feet of headwater streams” and the mitigation plan used “the Stream Habitat Unit (SHU) method to calculate mitigation debits and credits.” AR010189.
- EPA believes that “created streams converted from erosion control channels would be considered degraded and will not successfully replace Pigeonroost Branch and Oldhouse Branch as sources of freshwater dilution with healthy biological communities and water quality.” AR010191. EPA contends that “[t]here is no evidence that the type of stream creation ... will successfully replace lost biological function and comparable stream chemistry to high quality stream resources, such as Pigeonroost Branch and Oldhouse Branch.” AR010187. Moreover, EPA asserts that “it is extremely unlikely that high-value streams such as these can be replaced by on-site stream creation techniques involving conversion of sedimentation ditches fed by mine spoil runoff and seepage.” AR010188.
- EPA does not believe the mitigation plan takes into account the “terrestrial-aquatic linkage” and does not ensure that “restored or created channels provide greater functions than simply service as water conveyance structures.” AR010191.