ELR Citation: ELR 20035
No(s). s. 07-1355 et al (4th Cir. Feb 13, 2009)

The Fourth Circuit reversed and vacated a district court order rescinding four U.S. Army Corps of Engineers permits allowing the filling of stream waters in conjunction with mountaintop mining operations in West Virginia. 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—just over 13 miles. Contrary to the district court's ruling, the permits did not violate the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), or the Administrative Procedure Act. The Corps did not act arbitrarily or capriciously in determining the scope of its NEPA analysis. Nor were its findings regarding stream structure and function, mitigation, or cumulative impacts an "abuse of discretion" or "not in accordance with law." The compensatory mitigation plans 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 finding of no sognificant impact under NEPA. In addition, the Corps analyzed cumulative impacts in each of the challenged permits and articulated a satisfactory explanation for its conclusion that cumulative impacts would not be significantly adverse. The court also reversed a related, separate order in which the district court held 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 stream segments, together with the sediment ponds to which they connect, are unitary "waste treatment systems," not "waters of the United States." In addition, the Corps' interpretation of its authority was reasonable in light of the CWA and entitled to deference. The Corps has the authority under CWA §404 to permit the filling of jurisdictional waters to move runoff away from valley fills. The Corps also has authority to permit the construction of sediment ponds to treat that runoff before it is discharged back into jurisdictional waters. Accordingly, it is reasonable to conclude that the Corps may use its §404 authority to permit the stream segments that must, as a practical reality, be used to move runoff from the fill to the sediment ponds.

[A prior decision in this litigation can be found at 37 ELR 20070.]