Coal River Mountain Watch, Appalachian Voices, West Virginia Highlands Conservancy, and Sierra Club v. Colonel Phillip J. Valenti, in his official capacity as District Engineer, U.S. Army Corps of Engineers, Huntington District, William H. Graham, in his official capacity as Commander and Chief of Engineers, U.S. Army Corps of Engineers, and United States Army Corps of Engineers

Summary

The United States District Court for the Southern District of West Virginia reviews the U.S. Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit for valley fills associated with the Turkeyfoot Surface Mine in Raleigh County, West Virginia. The court concludes that the Corps’s decision was arbitrary and capricious because it inadequately addressed EPA concerns and evidence regarding water-quality impacts, including elevated conductivity and harm to aquatic ecosystems. The court grants the plaintiffs’ motion for summary judgment in part and denies the Corps’s motion.

Holdings

1. The § 401 certification was not conclusive because the EPA advised the Corps of other water-quality aspects to be taken into consideration in its detailed comments concerning secondary and cumulative impacts, conductivity, pollutants, and aquatic-resource degradation.
2. The Corps acted arbitrarily and capriciously by failing to rationally distinguish the Turkeyfoot Mine from prior mines where similar construction methods and mitigation measures were followed by elevated conductivity and impaired stream conditions.
3. The Corps acted arbitrarily and capriciously by failing to explain why the Turkeyfoot Mine's best management practices and aquatic ecosystem protection plan would prevent downstream aquatic harm despite scientific evidence linking valley fills to increased conductivity and biological impairment.
4. Because the § 401 certification was not conclusive, the Corps could not rely on it as a substitute for independently considering and reasonably responding to the EPA's and plaintiffs' water-quality concerns.
5. The Corps acted arbitrarily and capriciously by using a WVSCI score of 70 as the performance standard for Workman Creek and portions of Wingrove Branch without explaining why a score below the streams' pre-mining baselines, and below the score indicating an unimpaired community, was acceptable.
6. The Corps' incorrect statement that the NPDES permit contained a specific total-dissolved-solids limit was harmless error and did not independently make the permit decision arbitrary and capricious.

Questions Presented

1. Whether the Turkeyfoot Mine's state Clean Water Act § 401 certification was conclusive regarding water-quality considerations despite EPA comments advising the Corps of other water-quality aspects to consider.
2. Whether the Corps adequately explained why the Turkeyfoot Mine would not repeat adverse water-quality outcomes associated with other surface mines and valley fills.
3. Whether the Corps adequately considered and responded to scientific studies linking valley fills and surface mining to downstream conductivity and biological impairment.
4. Whether the Corps arbitrarily relied on the § 401 certification and failed to reasonably address concerns raised by the EPA and plaintiffs.
5. Whether the Corps selected an irrational WVSCI performance standard for mitigation streams that was below projected pre-mining baseline or impairment thresholds.
6. Whether the Corps' erroneous statement that the NPDES permit contained a specific total-dissolved-solids limit independently rendered the permit decision arbitrary and capricious.

Disposition

vacated