OHIO VALLEY ENVIRONMENTAL COALITION; Coal River Mountain Watch; West Virginia Highlands Conservancy, Plaintiffs-Appellees, and Coal Mac, Incorporated, Movant, v. ARACOMA COAL COMPANY; Elk Run Coal Company; Alex Energy, Incorporated; Independence Coal Company, Incorporated, Intervenors/Defendants-Appellants, and Mingo Logan Coal Company, Intervenor/Defendant, and United States Army Corps of Engineers; Lieutenant General Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Colonel Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District; West Virginia Coal Association, Defendants.
Nos. 07-1355, 07-1479, 07-1480, 07-1964, 07-2112
United States Court of Appeals, Fourth Circuit
Argued: Sept. 23, 2008. Decided: Feb. 13, 2009.
556 F.3d 177
Second, it bears notice that police attempted to calm the situation by waiting at least two hours before entering the apartment. Several officers attempted to speak with Hunt through the apartment door, and, as plaintiff notes, officers made at least nine phone calls during the standoff: they summoned supervisors, spoke further with Jennings, contacted Evans‘s sister, and ran a criminal background check on Hunt. All of these actions reflect the officers’ considered judgment that a period of waiting might calm Hunt and bring a peaceful resolution to the standoff. To be sure, as Hunt grew more agitated, officers decided that waiting further posed unacceptable risks, most especially to Evans. But the decision to wait was a sound exercise of discretionary judgment that bears on the reasonableness of any accommodation required.
We note that “reasonable accommodation” in this case bears a resemblance to how police might have addressed a hostage situation that did not involve a disabled individual. In any potentially violent standoff, the officers may have summoned a hostage negotiator and may have waited several hours before entering the apartment. Having now had the benefit of further discovery and argument, we think plaintiff has not indicated what the officers reasonably might be expected to do that they in fact did not do. The loss of any life is a tragedy, never to be discounted. But we cannot see that this injury, unfortunate as it was, flowed from any violation of the ADA.3
AFFIRMED
National Mining Association; Kentucky Coal Association; Coal Operators and Associates, Inc.; Illinois Coal Association; Colorado Mining Association; Alaska Miners Association; Virginia Coal Association; Idaho Mining Association; Alabama Coal Association; Pennsylvania Coal Association; Ohio Coal Association; Indiana Coal Council, Inc.; Utility Water Act Group; West Virginiа Department of Commerce; West Virginia Department of Environmental Protection, Amici Supporting Appellants.
ARGUED: Robert G. McLusky, Jackson Kelly, P.L.L.C., Charleston, West Virginia; Michael Thomas Gray, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellants. Joseph Mark Lovett, Appalachian Center for the Economy & The Environment, Lewisburg, West Virginia, for Appellees. ON BRIEF: James R. Snyder, Blair M. Gardner, Jackson Kelly, P.L.L.C., Charleston, West Virginia; Michael R. Shebelskie, William H. Wright, Jr., Hunton & Williams, L.L.P., Richmond, Virginia, for Intervenors/Appellants Aracoma Coal Company, Elk Run Coal Company, Alex Energy, Incorporated, Independence Coal Company, Incorporated; James S. Crockett, Jr., Allyn G. Turner, James C. Lesnett, Jr., Spilman Thomas & Battle, P.L.L.C., Charleston, West Virginia, for Appellant West Virginia Coal Association. Ronald J. Tenpas, Acting Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellants United States Army Corps of Engineers, Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers, Dana R. Hurst, District Engineer, United States Army Corps of Engineers, Huntington District. James M. Hecker, Public Justice, Washington, D.C.; Stephen E. Roady, Jennifer C. Chavez, Earthjustice, Washington, D.C., for Appellees Ohio Valley Environmental Coalition, Coal River Mountain Watch, West Virginia Highlands Conservancy. Harold P. Quinn, Jr., Karen Bennett, National Mining Association, Washington, D.C.; Christopher T. Handman, Dominic F. Perella, Hogan & Hartson, L.L.P., Washington, D.C., for Alabama Coal Association, Alaska Miners Association, Coal Operators and Associates, Incorporated, Colorado Mining Association, Idaho Mining Association, Illinois Coal Association, Indiana Coal Council, Kentucky Coal Association, National Mining Association, Ohio Coal Association, Pennsylvania Coal Association, Virginia Coal Association, Amici Supporting Appellants. James N. Christman, Brooks M. Smith, Hunton & Williams, L.L.P., Richmond, Virginia; Kristy A.N. Bulleit, Hunton & Williams, L.L.P., Washington, D.C., for Utility Water Act Group, Amicus Supporting Appellants. William R. Valentino, Assistant Attorney General, West Virginia Attorney General‘s Office, Charleston, West Virginia; Thomas L. Clarke, Senior Counsel, West Virginia Department of Environmental Protection, Office of Legal Services, Charleston, West Virginia, for West Virginia Department of Commerce and West Virginia Department of Environmental Protection, Amici Supporting Appellants.
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Reversed, vacated and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a separate opinion dissenting in part and concurring in part.
OPINION
This appeal concerns a challenge by Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as “OVEC“) to the U.S. Army Corps of Engineers (“Corps“) issuance of
Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were “waters of the United States” and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments.
The Corps now appeals these two orders. For the reasons set forth below, we reverse and vacate the district court‘s opinion and order of March 23, 2007, and vacate the district court‘s injunction. We also reverse the district court‘s June 13, 2007, grant of declaratory relief and we remand for further proceedings consistent with this opinion.
I.
The mountaintop removal method of surface coal mining, pioneered in West Virginia, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as “spoil.” Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock and soil and incorporation of air causes significant swelling. As a result, large quantities of the blasted material cannot be replaced, and this excess spoil (“overburden“) remains in the valley, creating a “valley fill” that buries intermittent and perennial streams in the process.
Water that collects in the fill must be moved out to ensure the fill‘s continued stability. Thus, an underdrain system is constructed by placing large boulders up to and above the ordinary high-water mark of the stream. The collected water is then channeled into a treatment pond, where sediment from the runoff is allowed to settle. Sediment ponds usually are constructed in existing streambeds, using earth and rock to create an embankment. After sediments have settled out of the fill runoff, the treated water is discharged from the sediment pond back into existing streams. When practicable, a sediment pond will be constructed in the streambed immediately adjacent to the end (or “toe“) of the fill. But, because West Virginia‘s steep, mountainous topography often prevents this kind of positioning, a short stream segment is frequently used to move runoff from the fill downstream to the sediment pond. Once a valley fill is stabilized, the embankments of the sediment pond are removed, and the ponds and the stream segments are restored to their pre-project condition.
Much of the impact of a valley fill project is felt by headwater streams. Headwater streams are small streams that form the origin of larger streams or rivers, and may be intermittent or ephemeral. Intermittent streams receive their flow from both surface runoff and groundwater discharge, while ephemeral streams rely on
OVEC initiated this challenge in September 2005 in the United States District Court for the Southern District of West Virginia, shortly after the Corps issued an individual valley fill permit and accompanying Combined Decision Document (“CDD“) to the Aracoma Coal Company for the Camp Branch Surface Mine project (“Camp Branch“) under its CWA § 404 authority.1 As the Corps issued subsequent § 404 permits to West Virginia mining operations, the district court allowed OVEC to amend its complaint several times to include the newly issued permits.
In addition to the Camp Branch permit, OVEC‘s Third Supplemental Complaint raised challenges to the individual § 404 permits issued to the Elk Run Coal Company for the Black Castle Mine (“Black Castle“), and to Alex Energy, Inc., for the Republic No. 1 and Republic No. 2 Surface Mines (“Republic No. 1” and “Republic No. 2“). The Republic No. 1 challenge was ultimately dismissed on ripeness grounds, but a challenge raised in a separate complaint to the individual permit issued to Independence Coal Company for the Laxare East Surface Mine (“Laxare East“) was consolidated with this proceeding. Each of the affected companies intervened as defendants in the action, as did the West Virginia Coal Association.
All together, the four challenged permits authorize the creation of 23 valley fills and 23 sediment ponds, and they impact 68,841 linear feet of intermittent and ephemeral streams, or just over 13 miles.2 For each of the four permits, the Corps prepared Environmental Assessments that concluded that the permitted activity would not result in significant environmental impacts given planned mitigation measures. On that basis, the Corps issued a “Finding of No Significant Impact” for all four permits.
OVEC‘s Third Supplemental Complaint charged that the Corps’ issuance of the § 404 fill permits for these mining projects violated both substantive and procedural provisions of the CWA and NEPA, and were “arbitrary, capricious, and an abuse of discretion” under the APA. According to OVEC, the Corps was required under
Trial in the case was originally scheduled for June 20, 2006, but on June 16, on the Corps’ motion, the district court remanded the permits to the Corps and stayed the proceedings. Almost a month later, the Corps reissued the permits, but this time with a supplemented administrative record that incorporated new comments from the public and the parties, including the reports prepared by OVEC‘s proposed expert witnesses. The district court lifted its stay on July 26, and a six-day bench trial was held in October 2006.
The district court granted judgment in favor of the plaintiffs on March 23, 2007, rescinding the permits, enjoining the Corps and Intervenors from taking any action under those permits, and remanding the permits to the Corps for further proceedings consistent with the court‘s order.3
The district court found, inter alia, that the probable impacts of the valley fills would be significant and adverse under both the CWA and NEPA; that the mitigation plans for each permit were not sufficient to compensate for those adverse impacts; that, in each permit, the Corps improperly limited its scope of review under NEPA to look only at the impact on jurisdictional waters rather than the broader impact of the entire valley fill project; and, finally, that the Corps inadequately evaluated the cumulative impacts of the projects.
On June 13, 2007, the district court granted summary judgment to OVEC on a separate claim under which the plaintiffs sought a declaratory judgment that the stream segments running from the valley fill toes to the sediment pond embankments are “waters of the United States,” and that the Corps thus did not have authority to permit the discharge of pollutants into these segments with a CWA § 404 permit. According to the district court, mining operators who wished to discharge runoff from the fill into a stream segment needed to obtain a CWA § 402 permit from the EPA or proper state authority. On September 13, 2007, the district court granted, pursuant to
On appeal, the Corps contends that it is entitled to deference on its determination about the scope of its NEPA analysis and that its findings on individual and cumulative impacts and mitigation were not arbitrary or capricious. The agency further argues that its interpretation of its CWA regulations—treating stream segments and sediment ponds as part of a unitary waste treatment system and thus excepting them from separate CWA § 402 per-
II.
We review de novo a district court‘s findings on an administrative record. See Crutchfield v. County of Hanover, 325 F.3d 211, 217 (4th Cir.2003). This de novo standard applies to questions of both law and fact. See id.
Both NEPA and CWA claims are subject to judicial review under the APA,
III.
A complex statutory framework undergirds the regulation of valley fills and associated sediment ponds, and it is this framework that provides the foundation for our opinion. Thus, we begin with a brief overview of the relationship of the four statutes that affect the scope of the Corps’ authority to issue fill permits in connection with mountaintop coal mining operations: the Surface Mining Control and Reclamation Act of 1977 (“SMCRA“),
A.
Congress passed SMCRA in 1977 to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.”
Under SMCRA, states have “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations” on non-Federal lands, so long as their regulatory program has been approved by the Secretary of the Interior as satisfying the Act‘s minimum requirements.5
Regulation of the disposal of excess spoil material from surface coal mining opera-
B.
An SMCRA permit by itself, however, does not suffice to allow a mine operator to construct a valley fill in conjunction with its mountaintop removal activities. Mining companies must also obtain permits certifying their project‘s compliance with the CWA. The CWA 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.”
First, a mine operator applying for a federal permit under the CWA must comply with CWA § 401,
States wishing to administer their own NPDES program must be approved by the Environmental Protection Agency (“EPA“) before they can begin issuing § 402 permits.
Finally, and most importantly for the purposes of this litigation, surface mining projects that intend to dispose of excess spoil from their mining operations in jurisdictional waters must obtain a CWA § 404,
In issuing § 404 permits, the Corps follows the § 404(b)(1) Guidelines (“CWA Guidelines“) promulgated by the Environmental Protection Agency (“EPA“) pursuant to
The Corps’ § 404 permit evaluation process must also include a public interest review componеnt, in which “[t]he benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.”
C.
Under NEPA, federal agencies must take a “hard look” at the potential environmental consequences of their actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Because NEPA is a procedural and not a results-driven statute, even agency action with adverse environmental effects can be NEPA-compliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs. Id.
NEPA requires only that federal agencies prepare an Environmental Impact Statement for “major Federal actions significantly affecting the quality of the human environment.”
Even where an EA determines that a proposed action will have a significant environmental impact, an agency may
D.
Claims challenging federal agency action under the CWA and NEPA are subject to judicial review under the APA.
Section 10 of the APA establishes that, as a general rule, “agency action, findings, and conclusions” will be set aside only when they are “found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
In determining whether agency action was arbitrary or capricious, the court must consider whether the agency considеred the relevant factors and whether a clear error of judgment was made. Citizens To Preserve Overton Park, 401 U.S. at 416. “Although 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.” Id. Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes “a ‘rational connection between the facts found and the choice made.‘” Motor Vehicle Mfrs. Ass‘n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); accord Ohio River Valley Envtl. Coalition, Inc. v. Kempthorne, 473 F.3d 94, 102-03 (4th Cir.2006).
The “arbitrary and capricious” standard is not meant to reduce judicial review to a “rubber-stamp” of agency action. Ethyl Corp., 541 F.2d at 34. While the standard of review is narrow, the court must nonetheless engage in a “searching and careful” inquiry of the record. Citizens To Preserve Overton Park, 401 U.S. at 416. But, this scrutiny of the record is meant primarily “to educate the court” so that it can “understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices
IV.
With this statutory guidance in mind, we turn now to the substance of this appeal, first taking up the issues on appeal concerning the district court‘s March 23, 2007, opinion and order.10
A.
The Corps and Intervenors (collectively “Appellants“) claim on appeal that the Corps’ decision about the scope of its NEPA analysis for each of these permits was entitled to deference as a reasonable interpretation of its own regulations. The district court found that the Corps acted contrary to its regulations by limiting the scope of its NEPA analysis to the impact of the filling of jurisdictional waters and by not looking at the larger environmental impacts of the valley fill as a whole. Agreeing with the district court, OVEC argues that the Corps’ NEPA analysis should have considered all environmental impacts caused by the fill, including the impacts to the upland valleys where the fills will be located. The Corps counters that it reasonably determined that, under its regulations, its jurisdictional reach was limited to the affected waters and adjacent riparian areas and that this determination is entitled to deference.
Because we are asked here to review the Corps’ interpretation of its own regulations, our review is cabined to assessing the reasonableness of that interpretation. This kind of review is highly deferential, with the agency‘s interpretation “controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotations omitted); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.2003) (noting that, when reviewing an agency‘s interpretation of its own regulation, “[t]he reviewing court does not have much leeway“). In applying this principle, also known as “Auer deference” or “Seminole Rock deference,” we must first determine whether the regulation itself is unambiguous; if so, its plain language controls. See Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); United States v. Deaton, 332 F.3d 698, 709 (4th Cir.2003). If ambiguous,
NEPA requires federal agencies to take a “hard look” at the environmental consequences of their actions, but the statute does not specify how an agency should determine the scope of its NEPA analysis. Wetlands Action Network v. United States Army Corps of Eng‘rs, 222 F.3d 1105, 1115 (9th Cir.2000). The Corps’ implementing regulations, however, specify that the proper scope of analysis for NEPA review is “to address the impacts of the specific activity requiring a DA [Department of the Army] permit and those portions of the entire project over which the [Corps] district engineer has sufficient control and responsibility to warrant Federal review.”
The Corps’ regulations are unambiguous in requiring a district engineer to address the impacts of the “specific activity requiring a DA [Department of the Army] permit” in its NEPA analysis.
Of course, even if the “specific activity” being permitted under CWA § 404 is the filling of valley streams, the Corps could still be required under NEPA to consider larger impacts of the broader valley fill project if the Corps is found to have “sufficient control and responsibility to warrant Federal review.”
The regulations go on to suggest several factors to be considered in making this determination, including:
- (i) Whether or not the regulated activity comprises “merely a link” in a corridor type project (e.g., a transportation or utility transmission project).
- (ii) Whether there are aspеcts of the upland facility in the immediate vicinity of the regulated activity which affect the location and configuration of the regulated activity.
- (iii) The extent to which the entire project will be within Corps jurisdiction.
- (iv) The extent of cumulative Federal control and responsibility.
OVEC‘s argument that the Corps has sufficient control and responsibility over
The Corps’ jurisdiction under CWA § 404 is limited to the narrow issue of the filling of jurisdictional waters. To say that the Corps has a level of control and responsibility over the entire valley fill project such that “the environmental consequences of the larger project are essentially products of the Corps permit action,”
Under SMCRA, the state of West Virginia has “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations.”
As part of its federally approved SMCRA regulatory program, the WVDEP surface mine permitting process examines “[e]very detail of the manner in which a coal mining operation is to be conducted ... including] the plan for disposal of excess spoil for surface ... mining operations....” (Br. for the W. Va. Dep‘t of Commerce and the W. Va. Dep‘t of Envtl. Prot. as Amici Curiae Supporting Appellants at 13.) As the Corps explains in its permits, “the social and environmental impacts associated with surface coal mining and reclamation operations are appropriately analyzed by WVDEP in this context before that agency decides whether to permit the mining operation under SMCRA.” Camp Branch CDD 4; Black Castle CDD 6; Laxare East CDD 7; United States Army Corps of Engineers, Combined Decision Document for the Republic No. 2
If the Corps, by issuing a § 404 permit, can turn a valley fill project “into a Federal action,”
SMCRA also calls for a coordinated and non-duplicative approach to environmental review. See
In Department of Transportation v. Public Citizen, 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004), the Supreme Court rejected the idea that “an agency‘s action is considered a cause of an environmental effect [for purposes of NEPA] even when the agency has no authority to prevent the effect.” The Court instructed that proximate causation, rather than “but for” causation, was the relevant measure of the causal relationship between the agency action and the environmental effects. Id. at 767, 124 S.Ct. 2204. In engaging in this proximate cause analysis, “courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.” Id. (quoting Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774
But for the Corps’
Even if we credit OVEC‘s arguments regarding the Corps’ control and responsibility over the greater valley fill project as a plausible construction of the Corps’ regulation, we must still deem the regulation “ambiguous,” and the Corps’ interpretation would be entitled to deference as long as it is not “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905 (internal quotations omitted); see also Seminole Rock, 325 U.S. at 413-14, 65 S.Ct. 1215; Kentuckians for the Commonwealth, 317 F.3d at 439. In the case of each of the challenged permits, the Corps’ engineers reasonably determined that a scope of NEPA analysis extending beyond the Corps’ limited jurisdiction to include environmental effects on upland areas would encroach on the regulatory authority of WVDEP, which administers the state‘s SMCRA program and is responsible for determining the social and environmental impacts associated with surface mining operations.12 Camp Branch CDD 6-7; Black Castle CDD 5-7; Laxare East CDD 6-8; Republic No. 2 CDD 4-7. Thus the Corps did not act arbitrarily or capriciously in determining the scope of its NEPA analysis.
B.
The Corps next challenges the district court‘s finding that the Corps failed to adequately support its mitigated FONSIs under NEPA and its findings of no significant degradation to waters of the United States under the CWA.13 The Corps takes issue with three areas in which the district court found the Corps’ findings to be lacking: (1) the Corps’ CWA analysis of the impact of the permitted fills on the structure and function of affected streams; (2) the sufficiency of the proposed mitigation measures for purposes of CWA and NEPA compliance; and (3) the adequacy of the Corps’ NEPA and CWA assessments of cumulative impacts of the proposed fills. In finding fault with the Corps’ conclu
1.
The Corps’ CWA Guidelines require the Corps to “[d]etermine the nature and degree of effect that the proposed discharge will have, both individually and cumulatively, on the structure and function of the aquatic ecosystem and organisms.”
In February 1990, the Corps and EPA developed a Memorandum of Agreement to make clear what kind of functional analysis the Corps was required to conduct. Memorandum of Agreement Between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines, 55 Fed.Reg. 9210 (Mar. 12, 1990) [hereinafter “MOA“]. The MOA sets out a common approach for evaluating stream function, calling for functional values to be assessed “by applying aquatic site assessment techniques generally recognized by experts in the field and/or the best professional judgment of Federal and State agency representatives, provided such assessments fully consider ecological functions included in the Guidelines.” Id. In 2002, the Corps issued a Regulatory Guidance Letter that called upon Corps district offices “when possible” to “use functional assessments by qualified professionals to determine impacts and compensatory mitigation requirements.” United States Army Corps of Engineers Regulatory Guidance Letter, No. 02-2 (Dec. 24, 2002) [hereinafter “RGL 02-02“]. RGL 02-02 provided that assessment techniques should be “generally accepted by experts or the best professional judgment” of federal and state agency representatives. Id.14
The Corps currently does not have a functional assessment protocol in place for use in West Virginia, though it is in the process of developing one. As a result, the Corps relies on the best professional judgment of its staff to assess aquatic impacts and potential mitigation measures. This generally means assessing stream structure as a surrogate for function.
Appellants argue that because the CWA Guidelines provide no definition of “function” or any specific methodology for evaluating function, the Corps’ interpretation and implementation of the regulation is entitled to deference. According to Appellants, the methodologies used by the Corps were an effective surrogate for functional assessment, and these techniques are compliant with the Guidelines, the MOA, and RGL 02-02.
The district court agreed with Appellants that a functional assessment was not required and that the Corps was entitled to deference on how to measure stream structure and function. It further found that the Corps was entitled to use its “best professional judgment” in accordance with the MOA and RGL 02-02 in evaluating functional loss. Nonetheless, the court concluded that, even under a “best professional judgment” standard, the Corps was obligated, and failed, to fully assess all ecological functions; to take a “hard look” at the evidence; and, to provide a reasoned basis for its conclusions. Based on our review of the administrative record, however, we cannot say that the Corps’ assessments of stream functions in the challenged permits were arbitrary and capricious.
Contrary to OVEC‘s position that the CWA Guidelines mandate a full functional assessment, the Guidelines in fact offer no definition of the word “function” or any explanation of how “structure” and “function” are to be assessed. The MOA and RGL 02-02 attempt to fill this gap by encouraging use of a functional assessment but allowing Corps engineers to use their best professional judgment when such an assessment is not possible. An agency‘s interpretation of its own regulations is due significant deference, Kentuckians for the Commonwealth Inc., 317 F.3d at 439, and the MOA/RGL 02-02 approach does not appear plainly erroneous or inconsistent with the Guidelines.
In this case, the Corps, using its best professional judgment, used stream structure as a surrogate for assessing stream function.16 Taking Black Castle as an example, the Corps used detailed measurements provided by Intervenors on the benthic macroinvertebrate population17 to
OVEC identifies nutrient cycling as one of the factors the Corps is instructed, but failed, to consider under
In fact, in each of its CDDs, the Corps provides its complete findings under
The district court placed great weight on the Appellees’ expert testimony at trial in finding that the Corps’ functional evaluation was lacking. We acknowledge the importance of extra-record evidence in NEPA cases to inform the court about environmental factors that the agency may not have considered. While review of agency action is typically limited to the administrative record that was available to the agency at the time of its decision, Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam), a NEPA suit is inherently a challenge to the adequacy of the administrative record, see County of Suffolk v. Sec‘y of the Interior, 562 F.2d 1368, 1384 (2d Cir.1977). That is why, in the NEPA context, “courts generally have been willing to look outside the record when assessing the adequacy of an EIS or a determination that no EIS is necessary.” Webb v. Gorsuch, 699 F.2d 157, 159 n. 2 (4th Cir.1983) (citing County of Suffolk, 562 F.2d at 1384).
Such consideration of extra-record evidence in a NEPA case does not, however, give courts license to simply substitute the judgment of plaintiff‘s experts for that of the agency‘s experts.20 Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289-90 (4th Cir.1999). “Agencies are entitled to select their own methodology as long as that methodology is reasonable,” and we must defer to such agency choices. Id. at 289; see also Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1244 (9th Cir.2005) (finding, in the context of a NEPA challenge, that because the Forest Service had provided a “thorough and reasoned explanation” for its position, the court would not “take sides in a battle of the experts” (internal quotations omitted)); Spiller v. White, 352 F.3d 235, 244 (5th Cir.2003) (same).
Having found that the Corps was not obligated to engage in a full functional assessment, it is not our place to dictate how the Corps should go about assessing stream functions and losses. In matters involving complex predictions based on special expertise, “a reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). When presented with conflicting evidence, courts must generally defer to the agency evaluation because “an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The CDDs issued with each permit include substantial analysis and explanation about the Corps’ impact findings. These determinations are within the agency‘s special expertise and were based on Corps staff‘s “best professional judgment.” As such, the Corps cannot be said to have acted arbitrarily or capriciously.
2.
OVEC next questions the sufficiency of the mitigation plans contained in the
Under the Corps’ CWA Guidelines, a
Compensatory mitigation can include the restoration of existing wetlands or the creation of new wetlands, and is to be done as close to the discharge site as possible (“on-site mitigation“). Id. Where on-site mitigation is not possible, off-site mitigation is permitted but should take place in the same geographic area if possible. Id. The MOA specifically directs that the functional values lost should be carefully considered when determining compensatory mitigation, and that, generally, in-kind mitigation should be used. Id. Noting the continued uncertainty of success in wetland creation, the MOA further instructs that restoration options should be considered before creation options. Id.
The mitigation measures specified for the four challenged fill projects include stream enhancement,22 stream restoration, and stream creation. Each of the proposed compensatory mitigation plans would, according to the Corps, lead to no net loss of habitat.23
For the Black Castle project, the Corps’ mitigation plan includes plans to compensate for temporary impacts caused by construction of the sediment ponds by restoring 7,590 linear feet of stream. Permanent impact mitigation will include enhancement of 18,000 linear feet of perennial streams. The Corps further estimates that the placement of alkaline overburden from the mining project into the fills will actually improve another 5,420 feet of stream below the fills by decreasing the acidity and aluminum levels found in those waters as a result of prior mining activity and construction.
In the case of the Laxare East project, the Corps developed a mitigation plan calling for restoration of 7,101 linear feet of temporarily impacted streams, as well as creation of 13,621 linear feet of stream and enhancement of another 16,000 linear feet.
Finally, the Corps’ mitigation plan for the Republic No. 2 project calls for restoration of 2,276 linear feet of temporarily impacted
Much of OVEC‘s concern over the proposed compensatory mitigation plans focuses on the potential impacts on headwater streams. As noted earlier, the role of headwater streams in downstream ecology is a matter of some debate in the scientific community and among the parties to this litigation. According to OVEC‘s experts, headwater streams function uniquely in stream ecology, collecting and transporting organic matter to nourish aquatic life downstream, allowing higher levels of nutrient uptake than perennial streams, and serving as a habitat for a variety of benthic organisms. Intervenors, on the other hand, offered expert testimony that, while headwater streams are “very important” to stream ecology (J.A. 4345), downstream waters could still maintain a healthy benthic community even when headwater streams were filled, as long as the water quality below the fill remained good.24 Another expert for the Intervenors further testified that, in fact, ephemeral streams “will not provide as much benefit as downstream reaches,” because their ephemeral nature does not allow them to “be giving the same type of value and processes as the one that‘s functioning all the time.” (J.A. 4381.)
The Corps, meanwhile, seems to take the position that, whatever the functional uniqueness of headwater streams, nothing in NEPA, the CWA, or the Corps’ regulations prevents them from allowing mitigation of headwater stream destruction through enhancement, restoration, or creation of a downstream perennial system.
The district court, again relying heavily on the trial testimony of OVEC experts, concluded that the Corps had failed to fully assess the impacts of destroying headwater streams. Taking OVEC‘s view of the unique role of headwater streams, the district court found that the mitigation plans failed to explain how a valley fill‘s destruction of headwater streams could be compensated for simply by the creation, enhancement, or replacement of an equal or greater length of some other stream type. The court further suggested that the Corps’ failure to conduct a full functional assessment meant that it ignored a number of critical headwater stream values in its evaluation of adverse impacts, and therefore the mitigation plans could not possibly be adequate to offset adverse impacts.
The Corps defends the mitigation plans by arguing that nothing in the CWA Guidelines requires compensatory mitigation measures that precisely replicate the functions of the impacted streams. Having reviewed the Guidelines, this Court concludes that, whatever the role of headwater streams in overall watershed ecology, the Corps is not required to differentiate between headwater and other stream types in the determination of mitigation measures.
In reaching this conclusion, we look to the Corps’ guidance in RGL 02-02, which
As we have already noted, a full functional assessment protocol is not yet available to the Corps, and the Corps is thus entitled to use its best professional judgment to assess structural and functional losses for purposes of the Guidelines. Similarly, RGL 02-02 advises that, where a full functional assessment is not feasible, the only compensatory mitigation measure the Corps must require in a permitting decision is stream replacement on a one-to-one basis.25 Nothing in the Corps’ CWA guidance requires that only in-kind, on-site mitigation measures be used. By this standard, the Corps’ permitting decisions have exceeded the mitigation requirements by creating mitigation plans involving greater than one-to-one replacement schemes. The Camp Branch project, for example, involved 15,514 linear feet of direct impacts, and the permit requires mitigation of 43,306 feet.
The Corps’ guidance does instruct that “functional values lost by the resource to be impacted must be considered” in developing a mitigation plan. MOA, 55 Fed.Reg. 9210 (Mar. 12, 1990). But the guidance also provides that compensatory mitigation must be “practicable.” Id. The Corps’ guidance documents indicate that, in “determining ‘practicability,’ Districts will consider the availability of suitable locations, constructability, overall costs, technical requirements, and logistics.” RGL 02-02. “In certain circumstances of regions of the country, on-site compensatory mitigation opportunities are limited,” and the Corps must look instead to other compensatory options. Thomas F. Caver, Deputy Dir. of Civil Works, U.S. Army Corps of Eng‘rs, Internal Guidance on Mitigation for Impacts to Aquatic Resources from Surface Coal Mining (May 7, 2004). In other circumstances, the stream functions being lost on-site may be “ubiquitous in the watershed,” while “wetland functions are rare or degraded.” Id. In such a situation, “it may be appropriate to replace lost stream functions with wetlands functions.” Id. Thus, where on-site or in-kind functional mitigation is not practicable or even ecologically preferable, the Corps’ guidance allows compensation plans that employ off-site or out-of-kind mitigation based on improvements to the overall aquatic health of the watershed.
For example, in the case of the Laxare East and Black Castle permits, the Corp‘s mitigation plans aimed to improve the water quality of already severely distressed streams in portions of the Laurel Creek watershed. Similarly, in the case of the Republic No. 2 mine, the mitigation plan was designed to address stability issues along the Long Branch tributary, based on an assеssment that “this section of stream could contribute to improved aquatic habitat and ultimately aquatic diversity .... by attempting to replace the chemical, hydrologic, and geomorphic functions of the
Moreover, each of the mitigation plans for the challenged permits included requirements for continued monitoring of the efficacy of the mitigation measures, in some cases for as much as 10 years.26 Each permit also contains detailed special conditions that impose numerous performance standards to measure and ensure the success of mitigation.27
OVEC also takes issue with the use of stream creation as a mitigation measure. The Camp Branch and Laxare East plans both employ stream creation as a significant component of their compensatory mitigation schemes. Under these plans, sediment ditches used during mining to collect runoff, control drainage, and collect sediment, will be converted into new stream channels. OVEC‘s experts have questioned these stream creation proposals, calling them scientifically untested and unsound.
The Corps’ support for its claim that the proposed stream creation measures have good potential for success is admittedly limited. The Corps cites one example of stream creation in a mining area in Kentucky as well as an Ohio State University study on the potential for enhancing the natural ecology of drainage ditches. See Camp Branch CDD 44; Laxare East CDD 98-101. However, the novelty of a mitigation measure alone cannot be the basis of our decision to discredit it. When an agency is called upon to make complex predictions within its area of special expertise, a reviewing court must be at its most deferential. Baltimore Gas & Elec. Co., 462 U.S. at 103, 103 S.Ct. 2246; see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.“). The Corps admits that “[t]ime is required with any new, scientifically based development as well as monitoring and evaluation to show the success and/or failures of the project.” Camp Branch CDD (Supplement) 3. And, the monitoring plans in place for Camp Branch and Laxare East allow the Corps to reevaluate their efficacy determinations as the stream creation projects progress.
Because the mitigation measures reflect the Corps’ determinations of the most appropriate and practicable means of compensating for anticipated impacts and losses of value, wе cannot say that the Corps’ conclusion that compensatory mitigation would offset the adverse effects of the fill
The Corps’ proposed mitigation plans are also sufficient to justify issuance of a mitigated FONSI for purposes of NEPA. In O‘Reilly v. U.S. Army Corps of Engr‘s, 477 F.3d 225 (5th Cir.2007), the Fifth Circuit found that the Corps’ EA and mitigated FONSI for a
In this case, by contrast, the Corps did explain how mitigation would compensate for fill impacts. In the Black Castle CDD, for example, the Corps explains that:
[t]he applicant‘s mitigation plan would be expected to result in the replacement of the appropriate type and quantity of aquatic functions lost due to project impacts. The goal of the applicant‘s CMP [Compensatory Mitigation Plan] is to reestablish, restore, and/or enhance the values of each habitat parameter (i.e. embeddedness and sediment deposition, velocity/depth regime, riparian cover, bank stability and vegetative protection), in order to promote a general improvement in the area‘s existing benthic conditions. Before impacts, the streams proposed to be impacted by the proposed activities were measured for detailed Rosgen-type morphological parameters, aquatic resources, habitat, substrate, and riparian parameters in order to reconstruct these sections of channels to their approximate original state ..., thus utilizing an ecological restoration approach on these sections of channels by replacing the physical and geomorphic functions .... This approach focuses on replacing the corridor structure and function, therefore, enabling communities to recover to a sustainable level. Stream functions were identified and quantified as part of the conducted benthic surveys, water sampling, habitat assessments, and [West Virginia Stream Condition Index] WVSCI and were used in the design of the applicant‘s CMP. A variety of components that address aquatic habitat functions such as improvement to water quality and temperature, organic input, and macroinvertebrate, fisheries, and riparian habitat has been incorporated into the applicant‘s mitigаtion plan. The applicant‘s specific goals include reducing sediment runoff, improving marginal aquatic habitats for benthic macroinvertebrates and fish both functionally and aesthetically, and restoring functions by eradicating invasive species, stabilizing eroded and collapsed banks, installing proper road crossings, placing or repositioning boulders, and planting native riparian vegetation. These improvements would ultimately improve aquatic habitat for fauna within the Laurel Creek watershed.
Black Castle CDD 42-43; see also id. at
The Corps is thus able to “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘” Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); see also Ohio River Valley Envtl. Coal., Inc. v. Kempthorne, 473 F.3d 94, 102-103 (4th Cir.2006). Given this, we conclude that the compensatory mitigation plans contained in the CDDs for each of the challenged permits were sufficient both for purposes of satisfying the Corps’ requirements under the CWA and for justifying issuance of a mitigated FONSI under NEPA.
3.
Under both NEPA and the CWA, the Corps is required to consider the cumulative impacts of an applicant‘s proposed project. Under NEPA, the Corps must evaluate “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts.”
OVEC argues that the Corps’ cumulative impact analysis failed in two respects. First, OVEC claims that, because the Corps improperly limited the scope of its NEPA analysis to the streams alone, it also failed to assess the cumulative impacts of the fills on the valleys themselves. Given our earlier finding that the Corps was entitled to deference in its decision to limit the scope of its NEPA analysis to the impacts from the filling of jurisdictional waters, this first argument by OVEC must fail.
Second, OVEC argues that the Corps’ conclusions about cumulative impacts with regard to the streams and watersheds themselves were insufficient. Appellants respond that the Corps complied with relevant regulations and guidance in its cumulative impact analysis. For each CDD, the Corps included an evaluation of (1) present conditions and probable future conditions if fill activity is not allowed; (2) the direct and indirect effects that fill activity would have on those conditions; and (3) how fill activity would interact with past or future impacts from other activity in the area. See Camp Branch CDD 24-30; Black Castle CDD 43-53; Laxare East CDD 43-56; Republic Nо. 2 CDD 21-24.
The district court found the Corps’ cumulative impact analysis faulty because it presumed that the Corps’ determination relied improperly on mitigation to eliminate adverse impacts. The district court is correct that a “mitigated to insignificance” analysis does not suffice to demonstrate an absence of cumulatively significant impacts. The Fifth Circuit rejected just such an approach in O‘Reilly, 477 F.3d at 234-35.
In O‘Reilly, the Corps had issued a CWA
This case is different. While the Corps’ finding of no cumulative adverse impacts does lean, to some extent, on mitigation, it is not in the same perfunctory, conclusory way that was found inadequate in O‘Reilly. For one thing, the Corps’ findings rely in part on both the WVDEP‘s CWA
impacts of the project in light of other activities in the watershed .... and anti-degradation requirements .... [which] work to reduce or eliminate cumulative impacts by providing a process to maintain existing water quality levels to meet intended uses.... Therefore, the Corps views the state water quality certification as satisfying the water quality portion of cumulative impact analysis....
Laxare East CDD 122. A
The SMCRA permitting process also requires the director of WVDEP to prepare an assessment of the probable cumulative impact of all anticipated (past, present, and future) mining on the hydrologic balance in the area of the mine and make a finding that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.
In finding the Corps’ cumulative impact analysis inadequate, the district court charged that “[t]he Corps does not explain how the cumulative destruction of headwater streams already affected by mining in these watersheds will not contribute to an adverse impact on aquatic resources.” Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng‘rs, 479 F.Supp.2d 607, 659 (S.D.W.Va.2007). In fact, each of the Corps’ permits directly addresses the cumulative impact issue. In the Republic No. 2 CDD, for example, the Corps acknowledges that the impact of pre-SMCRA mining has degraded the upper Cabin Creek watershed. See Republic No. 2 CDD 23. However, the Corps notes that mining in the same seams as proposed for Republic No. 2 has not resulted in any acid mine drainage problems. Id. at 16. The
Thus, the Corps concluded that
while there would be short-term impacts to the aquatic and terrestrial environment as a result of the proposal, it is anticipated the proposed mining activities would have no adverse cumulative environmental impacts within the sub-watershed or the overall Cabin Creek watershed. The proposal, if implemented as described, should improve the overall ecological balance of the area. Further, the proposal and resultant mitigation and reclamation requirements are expected to improve the overall health of the Cabin Creek watershed.
Id. at 24.30
Because the Corps has analyzed cumulative impacts in each of the challenged permits and has articulated a satisfactory explanation for its conclusion that cumulative impacts would not be significantly adverse, we find that the Corps did not act arbitrarily or capriciously in conducting its required cumulative impact analysis.
V.
Appellants also challenge the district court‘s June 13, 2007, order granting OVEC declaratory relief on the question of whether stream segments connecting valley fills to downstream sediment ponds are properly classifiable under the CWA as waters of the United States and thus not within the Corps’
A.
At the outset of our analysis on this issue, we must deal with the Intervenors’ argument that thе doctrine of res judicata precludes OVEC‘s claim of entitlement to declaratory relief. Intervenors argue that plaintiffs could and should have raised this claim in the course of the Bragg v. Robertson litigation, and their failure to do so bars them from raising it now. The district court rejected this argument in a memorandum opinion and order dated August 10, 2006; we review de novo, see Q Int‘l Courier, Inc. v. Smoak, 441 F.3d 214, 216 (4th Cir.2006).
In Bragg v. Robertson, 54 F.Supp.2d 653 (S.D.W.Va.1999), aff‘d in part, rev‘d in part sub nom. Bragg v. W. Va. Coal Ass‘n, 248 F.3d 275 (4th Cir.2001), the plaintiffs—including several individuals and the West Virginia Highlands Conservancy, one of the plaintiffs in this case—brought suit against, inter alia, the Corps and WVDEP for various alleged violations of their statutory duties under SMCRA, the CWA, and NEPA in the course of their mountaintop removal permitting activities. With respect to the Corps, the plaintiffs’ complaint alleged that the agency did not have authority under the CWA to regulate valley
Plaintiffs subsequently entered into a settlement agreement with the Corps that resolved their claims regarding the Corps’ past alleged violations under the CWA and NEPA.31 See id. Under the terms of the agreement, the plaintiffs gave up their right to challenge the Corps’ authorization of valley fills under the theory that mining spoil is not fill material. See id. at 657 n. 5. The agreement expressly reserved for the plaintiffs, however, “the right to challenge under the APA any future Corps’ CWA section 404 authorization for any valley fill in waters of the United States that may be authorized by the Corps after the Effective Date of this Settlement Agreement.” (J.A. 139-40); see also Bragg, 54 F.Supp.2d at 657. The district court approved the settlement agreement and dismissed all outstanding claims against the Corps with prejudice. Bragg, 54 F.Supp.2d at 653-54.
Intervenors claim that the district court‘s orders in the Bragg litigation were final adjudications for purposes of claim preclusion and that principles of res judicata bar OVEC from now challenging the Corp‘s permitting of the use of stream segments to connect fills to downstream sediment ponds. We find this argument unpersuasive.
Res judicata or claim preclusion bars a party from suing on a claim that has already been “litigated to a final judgment by that party or such party‘s privies and precludes the assertion by such parties of any legal theory, cause of action, or defense which could have been asserted in that action.” 18 James Wm. Moore et al., Moore‘s Federal Practice § 131.10(1)(a) (3d ed.2008). For res judicata to prevent a party from raising a claim, three elements must be present: “(1) a judgment on the merits in a prior suit resolving (2) claims by the same parties or their privies, and (3) a subsequent suit based on the same cause of action.” Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir.1990).32 In finding that the second suit involves the same cause of action, the court need not find that the plaintiff in the second suit is proceeding on the same legal theory he or his privies advanced in the first suit. See id. at 43. As long as the second suit “arises out of the same transaction or series of transactions as the claim resolved by the prior judgment,” the first suit will have preclusive effect. Id. (internal quotations omitted).
OVEC argues that the claims involved in this case and in Bragg are different, because in Bragg thе plaintiffs challenged the Corps’ authority to permit valley fills and in this case the plaintiffs have challenged the Corps’ authority to authorize pollutant discharge into stream segments. This argument, as Intervenors point out, misunderstands the principles of claim preclusion. Even claims that were not raised in the original suit may be precluded if they arose from the same transaction or occurrence as those raised
Nonetheless, claim preclusion does not apply in this case for two reasons. First, the Bragg settlement agreement explicitly reserved plaintiffs’ right to challenge the Corps’ valley fill permit authority in the future. The Bragg plaintiffs conceded only that they would not raise such a challenge on the theory that mining spoil is not fill material. Settlement agreements operate on contract principles, and thus the preclusive effect of a settlement agreement “should be measured by the intent of the parties.” 18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4443 (2d ed.2002). Here it seems clear that the parties intended to retain for the plaintiffs the right to challenge the Corps’ permitting of future valley fill projects on any grounds other than the one specifically raised in Bragg.
Second, OVEC is challenging a different set of permits in this case than those at issue in Bragg. The Corps had not even issued the permits in question here at the time of the Bragg litigation. Intervenors’ argument that OVEC should have raised its stream segment claim during the Bragg litigation falls flat because the claim here concerns four permits that were not even in existence at the time of Bragg. The fact that the two suits involve challenges to very similar courses of conduct does not matter; a prior judgment “cannot be given the effect of extinguishing claims which did not even then exist....” Lawlor v. Nat‘l Screen Serv. Corp., 349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). A contrary finding would confer “partial immunity from civil liability for future violations.” Id. at 329, 75 S.Ct. 865.
For these reasons, we affirm the lower court‘s finding that OVEC‘s stream segments claim is not barred by principles of res judicata.
B.
The district court‘s June 13, 2007, order granted OVEC‘s motion for partial summary judgment on its claim that the Corps did not have authority under
Because this is an issue of statutory and regulatory interpretation, we must apply the framework for review laid out in Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945).
In determining whether the Corps’ interpretation is entitled to deference, this Court must first look to the language of the authorizing statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (1984). An agency‘s reasonable interpretation of a statute is entitled to deference, unless Congress has already expressed a clearly contrary intent. Id.
The Corps’ regulations implementing the CWA have defined the “waters of the United States” to include interstate waters as well as “all other waters such as intrastate lakes, rivers, [and] streams (including intermittent streams)....”
In Deaton, 332 F.3d at 709, this Court found that Congress’ decision to define “navigable waters” broadly as “waters of the United States” evinced an intent to regulate at least some waters that would not be considered navigable. The Court went on to find, however, that the Act was not clear what non-navigable waters it intended to cover, and thus that the phrase “waters of the United States” was “sufficiently ambiguous to constitute an implied delegation of authority to the Corps” to determine the scope of the phrase. Id. at 709-10.
Given that the Corps has the authority to determine which waters are covered by the CWA, this Court must next look to the Corps’ regulations implementing the CWA. Id. at 710. If the regulation defining “waters of the United States” is ambiguous, then the Corps’ interpretation of that definition is entitled to Seminole Rock deference and controls unless plainly erroneous or inconsistent with the regulation. Id. at 711.
Appellants and OVEC agree that, in the absence of the valley fill, the stream segments in question would be considered “waters of the United States” because they would be part of a natural stream pursuant to
The Corps’ definition of “waters of the United States” relies heavily on that adopted by the EPA in its CWA
The issue, then, is to determine whether the Corps’ interpretation of
Notwithstanding the Seminole Rock principle that significant deference is due an agency‘s interpretation of its own regulations, such deference may not be required when the agency‘s advocated interpretation is one that it has just adopted for the purpose of litigation and that is “wholly unsupported by regulating, rulings, or administrative practice.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The interpretation must reflect the agency‘s fair and considered judgment on the matter. See Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). To the extent that Appellees are right, and the Corps only adopted this position as a litigation defense, it is not entitled to Seminole Rock deference. However, the Corps argues that its position has been consistent and consonant with longstanding EPA guidance.
As with much in this case, the history of the EPA‘s and the Corps’ positions on this issue is complicated. As noted earlier, in 1980, the EPA suspended its definition of the term “waste treatment system,” found originally in
The Reilly plaintiffs argued that the stream segments and sediment ponds were excepted from
Then, in a 1992 guidance document, the EPA indicated, in the context of advising on an Alaskan gold mining project, that impoundments “created by the discharge of fill material ... if permitted by the Corps under
Finally, in March 2006, after this litigation began, the EPA sent the Corps a letter in which the EPA states that, in the context of Appalachian surface mining, “the waste treatment system exclusion continues to apply to the creation or use of a waste treatment system in waters below a valley fill permitted by the Corps under CWA
The district court found, and OVEC now argues, that the EPA Letter was a post hoc rationalization and did not constitute the “fair and considered judgment” of the EPA or, in turn, the Corps. In support of its argument that the “waste treatment system” interpretation was not a post hoc rationalization, the Corps points to the fact that, over the twenty-five years that the EPA and WVDEP have been issuing
This kind of consistent administrative practice suggests that the Corps’ and EPA‘s position is not a post hoc rationalization. Cf. Bowen, 488 U.S. at 212, 109 S.Ct. 468 (“We have never applied the principle [of deference] ... to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice.“). The EPA‘s position in Reilly, at first glance, seems difficult to reconcile with the position it and the Corps now claim. But, the distinction lies in the fact that the Reilly case arose in the con
In Reilly, the EPA was objecting to the fact that West Virginia, in issuing
Even if the Corps’ “waste treatment system” argument was a post hoc rationalization when it was first raised, once the Corps reconsidered and reissued the permits on voluntary remand, the justification was no longer post hoc and it is entitled to deference.35 When a court reviews an agency action, the agency is entitled to seek remand “without confessing error, to reconsider its previous position.” SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed.Cir.2001). “[A]n agency must be allowed to assess ‘the wisdom of its policy on a continuing basis.‘” Id. at 1030 (quoting Chevron, 467 U.S. at 864, 104 S.Ct. 2778). As the Supreme Court recently found in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 127 S.Ct. 2339, 2349, 168 L.Ed.2d 54 (2007), “as long as interpretive changes create no unfair surprise ... the change in interpretation alone presents no separate ground for disregarding the Department‘s present interpretation.” Decades worth of administrative practice cannot constitute an “unfair surprise.” Because, to the extent there was a “change” in written administrative policy, that change reflected the considered views and longstanding practice of the Corps and the EPA, the Corps’ interpretation of the “waste treatment” exception to its regulatory definition of “waters of the United States” is entitled to deference. See id. at 2349.
The final step in the combined Chevron and Seminole Rock analysis is to
In making this determination, we must first appreciate the stаtutory tightrope that the Corps walks in its permitting decisions. In passing the CWA, Congress aimed “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
Sediment ponds represent the “best technology currently available” for the treatment of sedimentary runoff from surface mining valley fills. In fact, the regulations of the Department of the Interior‘s Office of Surface Mining specifically contemplate the use of in-stream sediment ponds.
It is undisputed in this litigation that the Corps has the authority under CWA
VI.
Since the district court‘s rulings in this case, the Corps has issued five new individual CWA
For the foregoing reasons, we reverse and vacate the district court‘s March 23, 2007, opinion and order rescinding the four challenged permits and vacate the district court‘s injunction of activity under those permits. We also reverse the district court‘s June 13, 2007, order granting declaratory relief to OVEC on the issue of whether the stream segments used to connect valley fills to downstream sediment ponds are properly characterized as “waters of the United States.” Finally, we deny OVEC‘s motions for judicial notice. We remand for further proceedings consistent with this opinion.
IT IS SO ORDERED
MICHAEL, Circuit Judge, dissenting in part and concurring in part:
The U.S. Army Corps of Engineers (Corps) has authorized the filling of twenty-three valleys and more than thirteen miles of headwater streams in Southern West Virginia in connection with four mountaintop removal mining operations. Despite its failure to fully assess the impact that the proposed valley fills will have on the aquatic ecosystem, the Corps claims that, after mitigation measures have been implemented, the valley fills will not significantly degrade the waters of the United States or have a significant adverse impact on the human environment. Because the record in this case does not support the Corps’ claims that the assessments conducted and the mitigation measures imposed were adequate to fulfill the requirements of the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA), I respectfully dissent from part IV.B of the majority‘s opinion.
The Corps’ regulations implementing the CWA‘s
The majority‘s analysis of the mitigation approved by the Corps also overlooks the plainly stated requirements of
For these reasons, I would affirm the district court‘s judgment rescinding the permits and direct that court to remand the permits to the Corps for further con
I concur in the parts of the majority opinion upholding the scope (or physical boundary) of the Corps’ NEPA analysis (part IV.A) and the Corps’ interpretation of its regulatory definition of “waters of the United States” (part V).
I.
Before the Corps can issue a dredge or fill permit, it must determine, pursuant to its
A.
The Corps, purporting to exercise its “best professional judgment,” claims initially that stream structure can be measured as a surrogate for function. Corps’ Br. at 36. The majority accepts the Corps’ argument, stating that “[i]n this case, the Corps, using its best professional judgment, used stream structure as a surrogate for assessing stream function“. Ante at 199. Neither the Corps nor the majority explains how the assessment of structure as a surrogate for function can be squared with the plain language of the regulations.1 If stream structure were truly an adequate surrogate for stream function, the Corps and the majority should offer some explanation as to why
The argument that “structure” is a surrogate for “function” is further undermined by the fact that a separate functional stream assessment protocol is currently being developed by the Environmental Protection Agency (EPA). Once the protocol is completed, the Corps will use it to conduct
The Corps’ determination that stream structure can be used as a surrogate for function under
B.
The Corps, perhaps recognizing the weakness of its position, does not rely entirely on the argument that structure is a surrogate for function. It contends at times in its opening brief that the stream assessments conducted here were sufficient to satisfy both the structure and function inquiries mandated by
The majority credits the Corps for using “detailed measurements provided by [permit applicants] on the benthic macroinvertebrate population to draw conclusions about the level of stream function at the proposed fill sites.” Ante at 200. The majority also credits the Corps for making use of the EPA‘s Rapid Bioassessment Protocol (RBP) and the West Virginia Stream Condition Index (WVSCI or Index). But because the majority has not identified the relevant stream functions to be measured, it is not possible to say whether these assessment protocols provide relevant information. Further, by failing to acknowledge or employ in its review the relevant language from the regulations that requires the Corps to assess the “nature and degree of effect” that the proposed fills will have on stream function, the majority affords itself no legal basis for testing the sufficiency of any assessment of stream function.
To the extent that the record provides some indication of the appropriate meaning of “function” as used in
Contractor activities would involve field and laboratory studies aimed at conventional measurement of headwater stream functional processes in mined and un-mined watersheds. These functional processes can include, but are not limited to: 1) organic matter decomposition rates; 2) nutrient transport and uptake; 3) primary production and metabolism; 4) secondary production; and 5) organic matter retention and transport.
J.A. 1836.3
A look at only those functions listed by the EPA in its proposed functional stream
assessment protocol reveals that the assessments carried out by the Corps were deficient. The data provided by the EPA‘s RBP and the WVSCI, the protocols used by the Corps in this case, are insufficient to assess the bulk of the functions listed by the EPA to a degree that satisfies the requirements of
Indeed, the Corps, in its CDD for the Republic No. 2 mine, acknowledges the limitations of using the EPA‘s RBP to assess stream function:
While the rapid bioassessment protocol does not provide a detailed analysis of nutrient cycling, organic matter dynamics, respiration, measurement of primary/secondary production, as is typically found in scientific research analysis[,] it does provide baseline data that can be used to analyze chemical, physical, and biological conditions of the stream channel.
J.A. 3570. The functions about which the RBP fails to provide detailed analysis are the very functions the EPA‘s proposed functional analysis would evaluate. And the plain language of
The WVSCI fares only slightly better. The Index purports to measure stream “quality” and notes that its surveys “are used to measure the attainment of biological integrity.” A Stream Condition Index for West Virginia Wadeable Streams, at 3 (July 21, 2000), available at http://www.wvdep.org/Docs/536_WV-Index.pdf. The Index asserts that it is “an appropriate indicator of ecological quality, reflecting biological responses to changes in physical habitat quality, the integrity of soil and water chemistry, geologic processes, and land use changes (to the degree that they affеct the sampled habitat).” Id. at 4. It makes no mention of organic matter processing or retention, primary or secondary production, nutrient retention, cycling, transport or uptake, or respiration. And nowhere does it claim to be a functional assessment protocol.
It is not enough that the Corps’ expert Dr. Mindy Armstead testified that the WVSCI‘S EPT Index “was a good surrogate for the functional measurement of secondary biomass,” J.A. 4424-25, one of the functions to be covered by the EPA‘s functional assessment protocol. Measurement of a single function does not make the Index an adequate replacement for the required functional assessment. For decomposition and primary production, two other functions to be measured under the EPA‘s proposed functional assessment protocol, the Corps’ experts claim only that the WVSCI provides information about their presence or absence. The mere ability of an assessment protocol to detect the presence or absence of a stream function is insufficient to fulfill the more exacting “[d]etermine the nature and de
The majority opinion considers only one stream function—nutrient cycling—and concedes that the Corps’ assessment of that function was deficient: “The Corps’ CDDs themselves acknowledge this shortcoming, noting that the effects of filling ephemeral streams on nutrient cycling are difficult to measure and that there is a lack of consensus among the relevant agencies about how best to collect quantitative evidence regarding these functions.” Ante at 200. The majority excuses this deficiency, noting that: “[t]o compensate for these effects ... the Corps’ permitting decisions call for limiting impacts to channels that do not sustain long periods of flow and for establishing a riparian buffer around mitigation sites.” Ante at 200. Unfortunately, the Corps’ attempt to minimize impacts to stream functions that it has failed to assess sufficiently has no bearing on whether it has met its obligations under
Finally, and most fundamentally, in asserting that the proposed mitigation measures meet regulatory requirements, the Corps implicitly concedes that the stream assessment protocols used in this case failed to sufficiently assess stream function. The Corps’ Regulatory Guidance Letter (RGL) provides that “Districts should require compensatory mitigation projects for streams to replace stream functions where sufficient functional assessment is feasible.” J.A. 1174. Where sufficient funсtional assessment is not feasible, the RGL permits the Corps to rely on a substitute one-to-one linear stream foot mitigation that does not specifically account for lost stream function. In this case, the Corps does not claim that its mitigation measures will replace lost stream functions. The Corps asserts in its opening brief that its “approach is not arbitrary and capricious just because the precise functions of ephemeral or intermittent streams are not being replaced” by the mitigation measures required in this case. Corps’ Br. at 47. Instead, the Corps elects to rely on the substitute one-to-one mitigation ratio. By choosing to rely on one-to-one mitigation rather than attempting to replace lost function, the Corps implicitly but clearly concedes that the EPA‘s RBP and the WVSCI did not provide for an adequate assessment of stream function. If these protocols had generated the requisite data for a sufficient functional assessment, the Corps could not have logically invoked the RGL‘s one-to-one mitigation provisions. Since the Corps’ actions show that it does not believe its own contention that it has sufficiently assessed stream function, this court is under no obligation to believe it either.
II.
On the issue of the adequacy of the Corps’ proposed mitigation measures, the majority again errs in overlooking the plain language of the relevant regulations. The majority chooses to rely on internal Corps guidance documents that are inconsistent with, and must therefore yield to, the clear requirements of the regulations.
A.
The valley fills will bury more than 68,000 feet of intermittent and ephemeral headwater streams. The Corps does not dispute that, absent mitigation measures, the adverse impacts of the proposed pro
To justify allowing the Corps to approve this so-called one-to-one mitigation in lieu of requiring the replacement of lost stream function, the majority relies on the language of a Memorandum of Agreement (MOA) between the Corps and the EPA and an internal Corps’ Regulatory Guidance Letter (RGL).
From a legal standpoint, the majority‘s discussion of the MOA and RGL is largеly beside the point. To the extent that the MOA and RGL are inconsistent with the plain language of the regulations, the regulations control. The MOA itself states that it “does not change the substantive requirements of the Guidelines [regulations]. It is intended to provide guidance regarding the exercise of discretion under the Guidelines.” J.A. 1165. Similarly, RGLs are “issued without notice and comment and do not purport to change or interpret the regulations applicable to the section 404 program ... [and] are not binding, either upon permit applicants or Corps District Engineers.” Northwest Bypass Group v. U.S. Army Corps of Eng‘rs, 470 F.Supp.2d 30, 51 (D.N.H. 2007) (quoting Envtl. Def. v. U.S. Army Corps of Eng‘rs, No. 04-1575(JR), 2006 WL 1992626 at *7 (D.D.C. July 14, 2006)).
An analysis of the sufficiency of the mitigation in this case must begin with the provisions that are truly mandatory: those in the regulations. Compliance with
The majority‘s analysis skirts the requirements of
B.
Since the Corps cannot properly rely on its RGL to avoid mitigating for lost stream function, we would ordinarily look next at whether the mitigation measures required by the Corps will adequately replace lost function. This inquiry is premature in the present instance, however, because the Corps did not engage in the functional analysis required by
Furthermore, even under the majority‘s construction of the Corps’ mitigation duties (allowing for one-to-one mitigation where sufficient functional assessment is not feasible), there is good reason based on the record before us to question whether the mitigation will prevent significant degradation of waters of the United States. As the majority concedes, ante at 205, the Corps offers virtually no scientific support for the viability of creating working streams from scratch, particularly headwater streams. The Corps provides evidence of a single successful stream creation project in Kentucky, but this was not a headwater stream. Here, the bulk of the proposed stream creation in the mitigation plans is to take place in the sediment ditches on the valley fills, where the former headwater streams were located. According to the Draft EIS for Mountaintop Removal Mining and Valley Fills, a document jointly authored by the Corps and other agencies:
to date functioning headwater streams have not been re-created on mined or filled areas as part of mine restoration or planned stream mitigation efforts. Most on-site mitigation construction projects have resulted in the creation of palustrine wetlands that resembled ponds.
J.A. 862. The Draft EIS adds that “it is not known whether the organic matter processing that occurs in created wetlands would mimic the processing found in a natural stream system.” J.A. 863.
In addition to the lack of evidence about the viability of stream creation, the U.S. Fish and Wildlife Service (USFWS) and its West Virginia Field Office (WVFO) submitted a joint comment on the Laxare East permit expressing a continued belief that it is not possible to fully replace the critical aquatic and terrestrial ecosystem functions of healthy headwater streams. These agencies also commented that they were unaware of any scientific support for the concept that on-bench sediment ditches can be considered biologically equivalent to, or even rough approximations of, flowing streams. These сomments undercut the Corps’ contention that the mitigation will produce its advertised results.
In sum, the regulations in
C.
Pursuant to NEPA an agency engaging in a major federal action may decline to issue a comprehensive environmental impact statement (EIS) only if, after mitigation measures are accounted for, the agency concludes the action (or project) will result in no significant adverse impact to the human environment. See
III.
Today‘s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. We should rescind the four permits at issue in this case until the Corps complies with the clear mandates of the regulations. First, the Corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the Corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment.
UNITED STATES of America, Plaintiff-Appellee,
v.
Carlous Gerrard HOOD, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Corey Allen Brooks, Defendant-Appellant.
Nos. 08-7019, 08-7571.
United States Court of Appeals, Fourth Circuit.
Argued: Dec. 2, 2008.
Decided: Feb. 20, 2009.
Notes
I have engaged in what the majority calls an “inappropriate judicial intrusion” only to point out the shortcomings of the majority‘s analysis. The majority has determined that the Corps did not abuse its discretion in approving the stream assessments conducted in this case. The majority upholds the Corps in spite of the agency‘s unwillingness to define the term “function.” Any evaluation of the majority‘s (or the Corps‘) determination that the assessment of stream function was adequate, however, necessarily requires giving some meaning to the term “function.”
According to the majority, ante at 200 n. 19, “the only clues
Since the factors identified by the majority cannot constitute the stream functions contemplated by
Read in its entirety,
Section 230.10 describes four restrictions on discharge, all of which must be met before a dredge or fill permit can issue. Section 230.10(c) provides that “no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States.”