Ohio Valley Environmental Coalition v. Hurst, Civil Action No. 3:03-2281.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtJoseph R. Goodwin
Citation604 F.Supp.2d 860
PartiesOHIO VALLEY ENVIRONMENTAL COALITION, Coal River Mountain Watch, and Natural Resources Defense Council, Plaintiffs, v. Dana R. HURST, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District, and Robert L. Van Antwerp, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers, Defendants.
Docket NumberCivil Action No. 3:03-2281.
Decision Date31 March 2009
604 F.Supp.2d 860
OHIO VALLEY ENVIRONMENTAL COALITION, Coal River Mountain Watch, and Natural Resources Defense Council, Plaintiffs,
v.
Dana R. HURST, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District, and Robert L. Van Antwerp, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers, Defendants.
Civil Action No. 3:03-2281.
United States District Court, S.D. West Virginia, Huntington Division.
March 31, 2009.

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James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, John W. Barrett, Charleston Office, Charleston, WV, Joseph Mark Lovett, Appalachian Center for the Economy and the Environment, Lewisburg, WV, for Plaintiffs.

Cynthia J. Morris, Ruth Ann Storey, Thomas L. Sansonetti, U.S. Department of Justice, Environment & Natural Resources Division, Russell W. Petit, U.S. Army Corps of Engineers Office of Chief Counsel, Washington, DC, Stephen M. Horn, U.S. Attorney's Office, James R. Snyder, Lindsey K. Zamonski, Michael J. Pattwell, Robert G. McLusky, Blair M. Gardner, Jackson Kelly, Charleston, WV, Steven E. Rusak, U.S. Department of Justice, Denver, CO, Terry Clarke, U.S. Army Corps of Engineers Office of Counsel, Huntington, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, Chief Judge.


This case involves several environmental groups' challenge to the Army Corps of Engineers' ("Corps") decision to issue a nationwide permit, NWP 21, authorizing the discharge of dredged and fill material associated with surface coal mining activities, which includes mountaintop mining. Under this controversial method of mining, coal seams running through the upper fraction of a mountain, ridge, or hill are reached by blasting and removing each

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layer of rock above the seam. The mountain is demolished layer by layer as each layer of rock and coal is removed until the cost of proceeding exceeds the value of the remaining coal. During this process, the removed rock is placed in adjacent valleys and, once the coal is extracted, replaced in an attempt to recreate the contour of the mountain. See Bragg v. W. Va. Coal Assoc., 248 F.3d 275, 286 (4th Cir.2001). This dirt and rock, called overburden or spoil, "swells" or increases in size by as much as 25%, creating excess material not needed to rebuild the mountain. Id. As Judge Haden explained, "[t]he overburden ... is disposed of by creating valley fills, that is, literally, filling the valleys with waste rock and dirt." Kentuckians for the Commonwealth, Inc. v. Rivenburgh ("Rivenburgh I"), 204 F.Supp.2d 927, 929-30 (S.D.W.Va.2002). These valley fills permanently eliminate previously existing valley streams. In the past twenty years, thousands of miles of streams in Appalachia, constituting over 2% of the streams in the area, have been impacted by the discharges associated with mountaintop mining. Draft Programmatic Environmental Impact Statement at III.D-2 (2003) ("DPEIS"). In West Virginia alone, over 200 miles of streams have been permanently lost. DPEIS at III.K-49.

The Corps indirectly manages this process through a nationwide permitting process. A nationwide discharge permit authorizes discharges from all activities, nationwide, within an identified category. A complex statutory framework undergirds and constrains the Corps' decision to issue a nationwide permit. Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, for instance, requires the Corps to determine that the activities in the authorized category would only have minimal environmental impacts, both individually and cumulatively. Another statute, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C), requires the Corps to take a "hard look" at the environmental impacts of a project and prepare an environmental impact statement before issuing a nationwide permit unless it determines that the activities authorized by the permit will only result in insignificant environmental impacts.

In the course of issuing NWP 21 in the year 2007, the Corps determined, as required by CWA, that the activities authorized by that permit would only have minimal cumulative environmental impacts. The Corps also decided not to prepare an environmental impact statement, as required by NEPA, because it determined that the permitted activities would not result in significant environmental impacts. I FIND that these determinations were arbitrary and capricious under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706 for the following reasons.

First, the Corps' NEPA analysis did not include a consideration of the ongoing impacts of past actions, are part of NWP 21's cumulative impacts. Second, both the Corps' NEPA and CWA cumulative impacts determinations relied on the success of a mitigation process to minimize the cumulative impacts of NWP 21, but the Corps did not provide a rational explanation for its reliance. The Corps also provided no evidence that the mitigation process would be successful or adequately enforced. Accordingly, the Corps' determinations were unsupported by the administrative record and were arbitrary and capricious. NWP 21 (2007) is VACATED and REMANDED to the Corps for further proceedings.

I. Background

This case is one in a long line of lawsuits initiated by environmentalists against the coal industry and governmental regulators challenging practices and permit decisions

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related to mountaintop mining, or surface coal mining, in Southern Appalachia.1 As I have stated, those challenges arise from the detrimental impact those methods of mining have on the valley streams. As Judge Haden explained in greater detail:

The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration. Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream there is no water quality.

Bragg v. Robertson, 72 F.Supp.2d 642, 661-62 (S.D.W.Va.1999), aff'd in part, vacated in part, 248 F.3d 275 (4th Cir.2001).

The Corps, the defendant in this suit,2 indirectly regulates the mountaintop mining industry via § 404 of CWA. This case involves a challenge to the Corps' evaluation of the environmental impacts associated with a specific § 404 nationwide permit: NWP 21.

A. Statutory Framework

As I have stated, in order to issue a permit authorizing valley fill, the Corps must satisfy the requirements of two statutes: CWA and NEPA. The purpose of CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). CWA authorizes the Secretary of the Army, acting through the Corps, to regulate discharges of dredged and fill material into the waters of the United States by issuing either individual or general permits. 33 U.S.C. § 1344. Individual permits for the discharge of dredged or fill material from specific disposal sites are authorized on a case-by-case basis pursuant to § 404(a). The issuance of an individual permit requires extensive individual review, notice, and an opportunity for public hearing. 33 U.S.C. § 1344(a); 40 C.F.R. § 230.5.

Unlike individual permits that only authorize discharges from a specific site, general permits are issued on a state, regional, or nationwide basis. 33 U.S.C. § 1344(e). Pursuant to CWA § 404(e), general permits authorize the discharge of dredged or fill material for an entire category of activities. 33 U.S.C. § 1344(e). The purpose of § 404(e)'s general permits is to reduce administrative paperwork and delay and, according to the Corps, to permit the agency to "authorize minor activities that are usually not controversial and would result in little or no public or resource

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agency comment if they were reviewed through the standard permit process." Final Notice, 67 Fed. Reg. 2020, 2022 (Jan. 15, 2002). CWA requires that the Corps determine, before issuing a general permit, that "the activities in [the general permit's] category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." 33 U.S.C. § 1344(e)(1). Further, like individual permits, general permits may only be issued after the Corps provides notice and an opportunity for public hearing. 13 U.S.C. § 1344(e). The general permits must also be issued in accordance with the § 404(b)(1) Guidelines. Id. § 1344(e)(1); 40 C.F.R. §§ 230.1-.7. Under the Corps' regulations, the Corps must also conduct a review of twenty public interest factors identified in the Corps' regulations. 33 C.F.R. § 320.4. After issuance of the general permit by the Corps, however, individual projects that comply with the terms of the general permit may proceed without further action by the Corps or public notice. 40 C.F.R. § 230.5. Nationwide permits (which are one type of general permits) generally expire after five years. 33 C.F.R. § 330.6(b).

When issuing a nationwide permit, the Corps must also comply with the terms of NEPA. NEPA requires federal agencies to consider the environmental consequences of their actions and to allow public participation in the decision-making process. Unlike CWA, NEPA does not mandate particular substantive results such as a finding of minimal adverse impacts, but rather requires federal agencies to take a "hard look" at the environmental consequences of an action and to "disseminat[e] ... relevant environmental information for public comment so that the general public...

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36 practice notes
  • Nieves v. McHugh, No. 5:14–CV–434–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • June 3, 2015
    ...of law the evidence in the administrative record permitted the agency to make the decision it did." Ohio Valley Envtl. Coal. v. Hurst, 604 F.Supp.2d 860, 879 (S.D.W.Va.2009) (quotation omitted); see Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir.1985). Thus, in an APA claim, "su......
  • People for the Ethical Treatment of Animals, Inc. v. U.S. Dep't of Agric., No. 5:15-CV-429-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • July 12, 2016
    ...F.3d 374, 393 (4th Cir. 2014); Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985); Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 879 (S.D. W. Va. 2009). Plaintiff has the burden of proof. Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995). In reviewing an agenc......
  • Hoffler v. Hagel, No. 2:14–CV–63–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • August 10, 2015
    ...of law the evidence in the administrative record permitted the agency to make the decision it did." Ohio Valley Envtl. Coal. v. Hurst, 604 F.Supp.2d 860, 879 (S.D.W.Va.2009) (quotation omitted); see Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985). Thus, in an APA claim, "summa......
  • People for the Ethical Treatment of Animals, Inc. v. U.S. Dep't of Agric., No. 5:15-CV-429-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • July 12, 2016
    ...F.3d 374, 393 (4th Cir.2014) ; Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.1985) ; Ohio Valley Envtl. Coal. v. Hurst, 604 F.Supp.2d 860, 879 (S.D.W.Va.2009). Plaintiff has the burden of proof. Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir.1995). In reviewing an agency acti......
  • Request a trial to view additional results
33 cases
  • Nieves v. McHugh, No. 5:14–CV–434–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • June 3, 2015
    ...of law the evidence in the administrative record permitted the agency to make the decision it did." Ohio Valley Envtl. Coal. v. Hurst, 604 F.Supp.2d 860, 879 (S.D.W.Va.2009) (quotation omitted); see Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir.1985). Thus, in an APA claim, "su......
  • People for the Ethical Treatment of Animals, Inc. v. U.S. Dep't of Agric., No. 5:15-CV-429-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • July 12, 2016
    ...F.3d 374, 393 (4th Cir. 2014); Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985); Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 879 (S.D. W. Va. 2009). Plaintiff has the burden of proof. Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995). In reviewing an agenc......
  • Hoffler v. Hagel, No. 2:14–CV–63–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • August 10, 2015
    ...of law the evidence in the administrative record permitted the agency to make the decision it did." Ohio Valley Envtl. Coal. v. Hurst, 604 F.Supp.2d 860, 879 (S.D.W.Va.2009) (quotation omitted); see Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985). Thus, in an APA claim, "summa......
  • People for the Ethical Treatment of Animals, Inc. v. U.S. Dep't of Agric., No. 5:15-CV-429-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • July 12, 2016
    ...F.3d 374, 393 (4th Cir.2014) ; Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.1985) ; Ohio Valley Envtl. Coal. v. Hurst, 604 F.Supp.2d 860, 879 (S.D.W.Va.2009). Plaintiff has the burden of proof. Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir.1995). In reviewing an agency acti......
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3 books & journal articles
  • Practicable Alternatives for Wetlands Development Under the Clean Water Act
    • United States
    • Environmental Law Reporter Nbr. 48-10, October 2018
    • October 1, 2018
    ...demonstrate that mitigation measures adequately addressed and remediated adverse impacts); Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 884, 39 ELR 20072 (S.D. W. Va. 2009) (failure to prepare impact statement on issuance of na-tionwide permit); Wyoming Outdoor Council Powder Riv......
  • List of Case Citations
    • United States
    • Wetlands deskbook. 4th edition Appendices
    • April 11, 2015
    ...2004), rev’d , 429 F.3d 493 (4th Cir. 2005) ...................................... 32, 92 Ohio Valley Envtl. Coal. v. Hurst (OVEC II), 604 F. Supp. 2d 860 (S.D. W. Va. 2009) ........62 Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng’rs, 479 F. Supp. 2d 607 (S.D. W. Va. 2007)...................
  • Federal Wetlands Law Permits Under §404
    • United States
    • Wetlands deskbook. 4th edition -
    • April 11, 2015
    ...a category of activities by reliance on permit’s special conditions). 119. Ohio Valley Environmental Coalition v. Hurst (OVEC II), 604 F. Supp. 2d 860 (S.D. W. Va. 2009). 120. Available at http://www.usace.army.mil/Portals/2/docs/civilworks/mous/mou_inal_mtm.pdf. 121. 74 Fed. Reg. 34311 (Ju......

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