In reviewing an application for a Clean Water Act (CWA) dredge and fill permit for surface coal mining, the U.S. Army Corps of Engineers (Corps) may properly focus on the local effects of the permitted activity and is not obligated to assess the public health and environmental impacts of surface mining in general. 

That conclusion was reached by the U.S. Court of Appeals for the 6th Circuit in a case in which environmental groups challenged the Corps’ approval of a CWA Section 404 permit for valley filling as part of a mountaintop removal coal mine near Vicco, Kentucky.  The opinion affirmed a district court ruling, which the 6th Circuit described as “comprehensive and thoughtful.”

Amended application

In its first application to the Corps for a Section 404 permit, Leeco, Inc., the mine operator, requested permission to construct six valley fills.  Exercising its CWA authority to review and potentially veto Corps 404 permits, the EPA expressed concerns about the company’s plan and offered suggestions on how to approve it.  Leeco responded by submitting a revised application to the Corps.  The new plan reduced the number of valley fills to one, reduced the linear feet of streams affected by the project, and included a mitigation project to replace over 8,000 feet of streams lost to valley filling. 

As required by the National Environmental Policy Act (NEPA), the Corps reviewed the proposed valley fills and issued a finding of no significant impact (FONSI).  After the Corps announced its decision to grant the permit and the EPA raised no further concerns,  the Corps issued the Section 404 permit to Leeco in July 2012. 

Mitigation plan

In the district court, Kentuckians for the Commonwealth and the Sierra Club introduced four counts against the Corps.  The district court rejected each claim.  Subsequently, the plaintiffs appealed two elements of the district court’s ruling.  First, the plaintiffs argued that the Corps violated the NEPA by failing to consider the public health effects of the overall mining activity in conducting its NEPA review of the environmental effects of granting the Section 404 permit.  Second, the plaintiffs argued that the Corps violated CWA’s mitigation requirements by using a flawed analysis to assess the functional effects of the mitigation plan.

Corps’ ‘minor’ role

The 6th Circuit makes it clear that the federal Surface Mining Control and Reclamation Act (SMCRA) provides states with extensive authority to permit coal mining operations, while the CWA limits the review authority of the Corps to the “relatively minor … albeit necessary” role of reviewing the environmental impact of filling jurisdictional waters. 

The court stated:
“The Corps did not entirely ignore the public health effects of granting the permit, but rather reasonably limited its scope of analysis only to those human health effects closely related to the discharge of fill or dredged material into jurisdictional stream beds.  For example, the Corps assessed the potential impact of the permit activities on the local water supply, and it concluded, in large part because the nearest municipal water supply intake was a significant distance from the operation, that ‘it is not anticipated that this proposed project would affect the water supply.’  Also, the Corps considered the effects of the permit activities on air pollution, concluding that the dust and emissions ‘will not exceed de minimis levels.’  This analysis of health effects, albeit not as comprehensive and wide in scope as that demanded by the plaintiffs, was reasonable given the more limited nature of the threshold inquiry of whether the Corps’s action significantly affects the human environment.”

Mitigation plan

Regarding the claim that the mitigation plan was flawed, the court found that the Corps properly relied on its Eastern Kentucky Stream Assessment Protocol, which provides for an assessment of functional stream quality in determining whether a mitigation plan sufficiently replaces the aquatic functionality of lost streams.  Using that protocol, the Corps estimated that Leeco’s mitigation plan had an acceptable 80 percent chance of success.  The court found this estimate more persuasive than the plaintiffs’ argument that mitigation was likely to be unsuccessful.

Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers