Ohio Valley Environmental v. Bulen
| Decision Date | 23 November 2005 |
| Docket Number | No. 04-2129.,No. 04-2402.,No. 04-2137.,04-2129.,04-2137.,04-2402. |
| Citation | 429 F.3d 493 |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION; Coal River Mountain Watch; Natural Resources Defense Council, Plaintiffs-Appellees, v. William BULEN, District Engineer, U.S. Army Corps of Engineers, Huntington District; Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers, Defendants-Appellants, and West Virginia Coal Association; Kentucky Coal Association; Ohio Coal Association; Coal Operations and Associates, Incorporated; National Mining Association; Green Valley Coal Company, Intervenors-Defendants, Consol of Kentucky, Incorporated, Party in Interest. Ohio Valley Environmental Coalition; Coal River Mountain Watch; Natural Resources Defense Council, Plaintiffs-Appellees, v. West Virginia Coal Association; Kentucky Coal Association; Ohio Coal Association; Coal Operations and Associates, Incorporated; National Mining Association, Intervenors-Defendants-Appellants, and William Bulen, District Engineer, U.S. Army Corps of Engineers, Huntington District; Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers, Defendants, Green Valley Coal Company, Intervenor-Defendant, Consol of Kentucky, Incorporated, Party in Interest. Ohio Valley Environmental Coalition; Coal River Mountain Watch; Natural Resources Defense Council, Plaintiffs-Appellees, v. Green Valley Coal Company, Intervenor-Defendant-Appellant, and William Bulen, District Engineer, U.S. Army Corps of Engineers, Huntington District; Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers, Defendants, Consol of Kentucky, Incorporated, Party in Interest, West Virginia Coal Association; Kentucky Coal Association; Ohio Coal Association; Coal Operations and Associates, Incorporated; National Mining Association, Intervenors-Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Elizabeth Ann Kessler, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Michael Randolph Shebelskie, Hunton & Williams, Richmond, Virginia, for Appellants. James Millard Hecker, Trial Lawyers for Public Justice, Washington, D.C., for Appellees. ON BRIEF: Earl H. Stockdale, Chief, Lance D. Wood, Russell W. Petit, U.S. Army Corps of Engineers, Washington, D.C.; Ann R. Klee, General, United States Environmental
Protection Agency, Washington, D.C.; Sue Ellen Wooldridge, Solicitor, United States Department of the Interior, Washington, D.C.; Thomas L. Sansonetti, Assistant Attorney General, Jeffrey Bossert Clark, Deputy Assistant Attorney General, Mary B. Neumayr, Timothy Racicot, John A. Bryson, Steve Rusak, John T. Stahr, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellants William Bulen, District Engineer, U.S. Army Corps of Engineers, Huntington District, and Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers. Robert G. McLusky, Blair M. Gardner, Lindsey K. Griffith, Jackson Kelly, P.L.L.C., Charleston, West Virginia; William H. Wright, Jr., Hunton & Williams, L.L.P., Richmond, Virginia; Harold P. Quinn, Jr., National Mining Association, Washington, D.C., for Appellants West Virginia Coal Association, Kentucky Coal Association, Ohio Coal Association, Coal Operations and Associates, Incorporated, National Mining Association, Green Valley Coal Company. Joseph M. Lovett, Appalachian Center for the Economy and the Environment, Lewisburg, West Virginia, for Appellees.
Before NIEMEYER and LUTTIG, Circuit Judges, and ROBERT J. CONRAD, Jr., United States District Judge for the Western District of North Carolina, sitting by designation.
Affirmed in part, vacated in part, and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge NIEMEYER and Judge CONARD joined.
This case presents the question whether the United States Army Corps of Engineers ("the Corps") exceeded its authority under the Clean Water Act ("CWA") when it promulgated Nationwide Permit 21 ("NWP 21"), a general permit for the discharge of dredged or fill material into the waters of the United States that allows projects to proceed only after receiving individualized authorization from the Corps. We conclude that the Corps complied with the CWA when it promulgated NWP 21. The contrary judgment of the district court is therefore vacated.
The Clean Water Act prohibits the discharge of any "pollutant" into the waters of the United States without a permit. See 33 U.S.C. § 1311(a). The Army Corps of Engineers has authority under the CWA to issue two types of permits for the discharge of dredged or fill material: individual permits and general permits. The Corps issues individual permits under section 404(a) on a case-by-case basis for discharges at "specified disposal sites," after providing notice and opportunity for public hearing. Id. § 1344(a). The Corps issues general permits, which authorize "categories of activities" rather than individual projects, under section 404(e). That section provides, in relevant part, that:
the [Corps] may, after notice and opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the [Corps] determines that the activities in such 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. Any general permit issued under this subsection shall ... set forth the requirements and standards which shall apply to any activity authorized by such general permit.
Id. § 1344(e)(1).
Pursuant to section 404(e), the Corps has promulgated a number of general permits, all but one of which authorize projects that comply with the permits' terms to proceed without prior approval by the Corps. The exception, NWP 21 — which authorizes discharges of dredged or fill material associated with surface coal mining and reclamation projects — requires that projects be individually authorized by the Corps. NWP 21 authorizes:
[d]ischarges of dredged or fill material into waters of the U.S. associated with surface coal mining and reclamation operations provided the coal mining activities are authorized by the DOI, Office of Surface Mining (OSM), or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 and provided the permittee notifies the District Engineer in accordance with the "Notification" General Condition. In addition, to be authorized by this NWP, the District Engineer must determine that the activity complies with the terms and conditions of the NWP and that the adverse environmental effects are minimal both individually and cumulatively and must notify the project sponsor of this determination in writing.
Issuance of Nationwide Permits, 67 Fed.Reg.2020, 2081 (Jan. 15, 2002).
In this litigation, plaintiffs, a coalition of environmental groups, have raised various challenges to NWP 21. The district court did not reach most of those challenges, holding simply that NWP 21 is facially invalid under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), because it conflicts with the unambiguous meaning of section 404(e). J.A. 1070. The district court accordingly suspended existing authorizations under NWP 21 and enjoined the Corps from issuing further NWP 21 authorizations in the Southern District of West Virginia. Id. at 1079, 104 S.Ct. 2778. This appeal followed.
The district court concluded that NWP 21 conflicts with the unambiguous meaning of section 404(e) for essentially four reasons. First, it concluded that NWP 21 "defines a procedure instead of permitting a category of activities." J.A. 1070. Second, it concluded that section 404(e) "unambiguously requires determination of minimal impact before, not after, the issuance of a nationwide permit," and that, in violation of this requirement, "NWP 21 provides for a post hoc, case-by-case evaluation of environmental impact." Id. Third, it concluded that section 404(e) unambiguously requires that general permits authorize discharges to proceed without further involvement from the Corps, and NWP 21 violates this requirement because it authorizes projects to proceed only after receiving individualized approval from the Corps. Id. Finally, it concluded that NWP 21 violates the statutory requirement that the Corps provide notice and opportunity for public hearing before issuing a permit. Id. None of these conclusions withstands scrutiny.
At the outset, we note that, while our review of the district court's construction of section 404 is de novo, our review of the Corps' construction of section 404 is governed by the Supreme Court's decision in Chevron. Under Chevron, if the requirements of section 404 are unambiguous, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. However, if section 404 is ambiguous or silent with respect to the questions at issue, we "must defer, under Chevron, to [the Corps' interpretation of its governing statute], so long as that interpretation is permissible in light of the statutory text and reasonable." Asika v. Ashcroft, 362 F.3d 264, 267 (4th Cir.2004) (per curiam).
The district court first concluded that NWP 21 fails to comply with section 404(e) because it "defines a procedure instead of permitting a category of activities." J.A. 1070. We disagree. NWP 21 plainly authorizes a "category of activities." The category of...
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