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Kentuckians for the Commonwealth v. United States Army Corps of Engineers

ELR Citation: 44 ELR 20054
Nos. 13-6153, (6th Cir., 03/07/2014)

The Sixth Circuit held that the U.S. Army Corps of Engineers complied with NEPA and the CWA when it issued a §404 permit to a mining company for a secondary mining project that was part of a larger mining operation in Kentucky. The Kentucky Division of Mine Permits, which has exclusive jurisdiction over the regulation of surface mining in the state, approved the larger surface mining operation. The contested §404 permit issued by the Corps, meanwhile, relates only to the filling of jurisdictional waters. It allows the company to "mine through" and fill certain surface stream beds, which are already in a degraded state. It also requires the company to offset the limited environmental effect of the filling by improving other streams in the watershed. Environmental groups argued that NEPA required the Corps to have considered in its EA the public health impacts related to surface mining in general. They also argued that the Corps violated the CWA by using a flawed analysis of the associated compensatory mitigation plan. But in light of the entire project’s approval under the more comprehensive SMCRA, the Corps did not abuse its discretion in limiting the scope of its EA only to health effects closely related to the filling of jurisdictional stream beds. Where an existing state regulatory scheme already governs surface coal mining, NEPA does not require the Corps to expand its review to the environmental consequences of the entire mining operation. Nor did the Corps abuse its discretion in approving the mitigation plan provisions requiring the improvement of other local streams, since those provisions were rationally designed to ensure that there is not a net loss of aquatic function in the mine location's watershed. The court, therefore, affirmed the lower court decision upholding the permit.