A federal court in West Virginia has rejected challenges to a U.S. Army Corps of Engineers (Corps) permit for placement of excess overburden in connection with a mountaintop coal mine. Ohio Valley Envtl. Coal. v. Corps, No. 11-0149 (S.D.W.Va. 8/10/12). The permit allowed placement of excess overburden from surface mining in valleys, which included placement of fill in ephemeral and intermittent streams.

The Corps issued the permit after obtaining a water quality certification under the Clean Water Act (CW A) from the West Virginia Department of Environmental Protection (WVDEP) and after multiple meetings and correspondence with the U.S. Environmental Protection Agency (EPA) and other stakeholders in response to EPA comments on the WVDEP certification and the permit. The permit included mitigation for loss of waterways that would be caused by the fill, including replacement of streams at a greater than a 2-1 ratio. Determining that the permitted activity would have no significant impact on the environment, the Corps did not prepare an environmental impact statement under the National Environmental Policy Act.  

When the court issued its decision, the only remaining issues related to whether the Corps’s cumulative impact assessment was arbitrary and capricious. Noting that it owed the Corps deference, the court held that the WVDEP’s CW A certification was conclusive except with respect to conductivity and cumulative impacts, issues EPA had raised. The court held, however, that the Corps had adequately addressed these issues. The court also held that the Corps’s selection of stream replacement was not arbitrary and capricious despite uncertainties about its effectiveness, relying in part on appellate court precedent accepting such mitigation. In its evaluation, the Corps did not consider impacts occurring during the period from the start of mitigation activity through the time mitigation was functional. Although the Corps subsequently changed its methodology for determining the time frame over which environmental impacts would occur, the district court held that the Corps’s determination was not arbitrary and capricious.  

Finally, the court held that the Corps’s finding of no significant impact was not arbitrary and capricious. “The court is thoroughly convinced that large-scale surface mining is strongly correlated with elevated levels of conductivity and the loss of sensitive macro-invertebrates downstream of valley fills. This conclusion, however, is not enough to vacate the Corps’ decision on the Reylas permit.”