DUNCAN, Circuit Judge:
Raven Crest Contracting, LLC ("Raven Crest") operates a surface coal mine near Racine, West Virginia, known as the Boone North No. 5 Surface Mine ("the Boone North mine"). This action challenges the adequacy of the environmental review conducted by the Army Corps of Engineers ("the Corps") before the Corps issued a permit pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344, authorizing Raven Crest to discharge fill material into waters of the United States in conjunction with that mine.
The Plaintiffs-Appellants are a consortium of environmental groups, collectively "OVEC,"
At the Boone North mine, Raven Crest planned to "provide for the safe and efficient extraction of approximately 6.8 [million] tons of steam grade bituminous coal" from a 724-acre area. J.A. 93. To carry out its proposal, Raven Crest was required to obtain permits under each of four federal regulatory provisions: the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. § 1201 et. seq.; and sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. §§ 1341, 1342, 1344. We review each of these permitting requirements below, focusing particularly on Raven Crest's section 404 permit, as that is the specific permit OVEC has challenged in this case.
SMCRA is a federal statute that mandates certain minimum requirements for state programs that regulate surface mining. If the state regulatory program meets those requirements, SMCRA grants that state "exclusive jurisdiction over the regulation of surface coal mining and reclamation operations" within the state's borders. 30 U.S.C. § 1253. West Virginia's federally approved SMCRA program is administered by the West Virginia Department of Environmental Protection ("WVDEP").
Anyone wishing to undertake surface coal mining operations in West Virginia must obtain a SMCRA permit from WVDEP.
WVDEP issued a SMCRA permit to Raven Crest on September 3, 2009, authorizing Raven Crest "to engage in surface mining" at the Boone North mine. J.A. 522.
Section 401 of the Clean Water Act, 33 U.S.C. § 1341, requires a prospective mine operator to obtain a so-called "401 certification" from the state in which the mine will be located "stating that any discharge from the mine site will comply with all applicable water quality standards."
WVDEP issued a 401 certification for the Boone North mine on May 13, 2011, representing that Raven Crest's proposed activities would not cause a violation of West Virginia's EPA-approved water quality standards. J.A. 524.
Under section 402 of the Clean Water Act, 33 U.S.C. § 1342, no person may discharge pollutants into the waters of the United States without a permit issued pursuant to the National Pollutant Discharge Elimination System ("NPDES"). As with SMCRA, the Clean Water Act sets up a cooperative-federalism approach in which states may administer their own NPDES permitting program so long as the state program meets certain minimum federal requirements. West Virginia's NPDES permitting program is also administered by WVDEP.
Raven Crest's plan for the Boone North mine involved the discharge of both treated water and stormwater runoff into several creeks and tributaries at the Boone North mine. WVDEP issued an NPDES permit on May 27, 2009, authorizing those discharges. J.A. 526.
Finally, under section 404 of the Clean Water Act, 33 U.S.C. § 1344, no person may discharge dredged or fill material into waters of the United States without a permit from the Corps. Raven Crest's plan for the Boone North mine involved "mining through streams," a process in which stream channels are "excavated in order to recover coal reserves that lie directly beneath and adjacent to them," and then are "backfilled, regraded to [their approximate original contour] (or higher), and the affected channels restored." J.A. 93. Because this process involves discharging fill material into streams, Raven Crest needed a section 404 permit from the Corps before it could proceed. Below, we first provide an overview of the Corps' permitting process, then recount the specifics of Raven Crest's efforts to obtain a section 404 permit for the Boone North mine.
In reviewing a section 404 permit application, the Corps must ensure that the proposed discharge of fill material will not cause "`[s]ignificantly adverse effects' on human health or welfare, on aquatic life
Because the Corps is a federal agency, its review of a section 404 permit application must also comply with NEPA, which requires agencies to produce an environmental impact statement ("EIS") before undertaking any "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C).
To determine whether an action is a "major" one requiring an EIS, agencies prepare an Environmental Assessment ("EA"), a "concise public document" meant to "provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact." 40 C.F.R. § 1508.9(a);
Raven Crest initiated the section 404 permitting process for the Boone North mine on October 29, 2009, by submitting a permit application to the Corps. J.A. 92. After receiving Raven Crest's application, the Corps issued a "Public Notice" summarizing the application and soliciting public comments. J.A. 134. OVEC submitted a lengthy response letter. In that letter, it expressed a concern that "[v]arious studies have shown that coal mining has significant impacts on the health of those living in the coal fields," and contended that "[t]hese impacts must be considered by the Corps during the permitting process." J.A. 204.
On August 10, 2012, the Corps issued a Permit Evaluation and Decision Document that included both the section 404-required "public interest review" and the NEPA-required EA, and ultimately granted Raven Crest's section 404 permit. The public interest review portion of the document concluded that issuing the permit would not be contrary to the public interest. The EA portion of the document concluded that granting the permit would "not have a significant impact on the quality of the human environment," and that therefore the Corps did not need to prepare an EIS. J.A. 582-83.
In response, OVEC brought this action under the Administrative Procedure Act ("APA"), seeking to set aside the Corps' actions. Specifically, OVEC sought suspension or revocation of Raven Crest's section 404 permit, claiming that the Corps' decision not to consider those studies violated both NEPA and section 404.
Under the APA, a court will set aside an agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A);
We review the merits of OVEC's arguments below. We begin with its argument that the Corps acted contrarily to NEPA in issuing Raven Crest's section 404 permit, and then address OVEC's argument that the Corps acted contrarily to section 404.
OVEC argues that the Corps violated NEPA by failing to include in its EA any analysis of the studies OVEC cited as suggesting a connection between surface coal mining and adverse public health effects in nearby communities. The Corps responds that OVEC's argument is foreclosed by our precedent in
OVEC, which was also the plaintiff in
We agreed with the Corps. The Corps' regulations provide that, in conducting its NEPA analysis, the Corps need address only "the impacts of the specific activity requiring a [section 404] permit and those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review." 33 C.F.R. pt. 325, app. B, § 7(b)(1). Further, the Corps has "sufficient control and responsibility" to warrant review of a project as a whole, rather than just the specific activity requiring a Corps permit, when "the environmental consequences of the larger project are essentially products of the Corps permit action."
In so holding, we reasoned that "[t]o 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,'" would be "to effectively read out of the equation the elaborate, congressionally mandated schema for the permitting of surface mining operations prescribed by SMCRA."
This case involves a very similar dispute. Here, the Corps limited its NEPA review to the environmental impacts of the dredge-and-fill activities associated with "mining through" the streams located at the Boone North mine site. OVEC, however, argues that the Corps' review should have included consideration of the environmental impacts of surface coal mining more generally, and specifically of the studies OVEC cited showing adverse public health effects in communities near surface coal mines.
As in
Nevertheless, OVEC seeks to distinguish this case from
This first proposed distinction fails because it overlooks the core holding of
Second, OVEC argues that
This assertion is simply incorrect. Section 401 of the Clean Water Act requires a certification by the State of West Virginia that a proposed mine will not cause a violation of state water-quality standards, which are developed with human-health effects in mind. WVDEP issued such a certification here.
Moreover, even if human-health impacts were not considered elsewhere in the permitting process,
Finally, OVEC argues that two provisions of the Corps' regulations implementing section 404 require the Corps to consider the connection between surface coal mining and adverse public health effects during its permitting process. First, OVEC cites 40 C.F.R. § 230.10(c), which prohibits the Corps from issuing a section 404 permit for discharges of fill material that "will cause or contribute to significant degradation of the waters of the United States," including discharges that will involve "[s]ignificantly adverse effects ... on human health or welfare." Second, OVEC cites 33 C.F.R. § 320.4(a)(1), which requires the Corps to conduct a "public interest review" that involves a weighing of "[t]he benefits which reasonably may be expected to accrue from the proposal ... against its reasonably foreseeable detriments."
These provisions certainly require the Corps to take into account the public-health effects of a proposed discharge of fill material before granting a section 404 permit. They do not, however, create an obligation for the Corps to study the effects of activities beyond the proposed discharge itself. Thus, OVEC's section 404 argument fails for the same reason its NEPA argument fails: it seeks to require the Corps to study the effects of surface coal mining, an activity it cannot authorize and over which, under SMCRA, WVDEP has exclusive jurisdiction. Accordingly, we also affirm the district court's holding that the Corps did not violate the Clean Water Act in granting Raven Crest's section 404 permit.
For the reasons stated above, the judgment of the district court is