Bragg v. Robertson

No. 2:98-0636 (S.D. W. Va. October 20, 1999)

ELR Digest

The court enjoins the director of the West Virginia environmental agency from granting surface mining permits in violation of the Surface Mining Control and Reclamation Act (SMCRA) buffer zone rule that prohibitsvalley fills within 100 feet of intermittent and perennial streams. The court first holds that despite the director's claim of sovereign immunity, it has jurisdiction over the director under Ex Parte Young, 209 U.S. 123 (1908). The court next holds that the SMCRA buffer zone rule protects entire intermittent and perennial streams, not just portions thereof. Nothing in SMCRA or the federal or state buffer zone regulations suggests that portions of existing streams may be destroyed so long as some other stream portion is saved. The court next holds that interpreting the buffer zone rule to prohibit valley fills in streams is not inconsistent with other SMCRA provisions. A state regulation allowing overburden placement in natural drainways does not apply to streams because drainways carry water to streams and are not streams themselves. Further, a federal regulation prohibiting rock-core drains applies to areas containing intermittent or perennial streams not to the streams themselves.

The court then holds that Federal Water Pollution Control Act (FWPCA) § 404 does not conflict with or override the buffer zone rule. Although a memorandum of understanding (MOU) entered into between the state environmental agency, the U.S. Environmental Protection Agency (EPA), the Office of Surface Mining, and the U.S. Army Corps of Engineers purportedly constituted an interpretive rule that substituted FWPCA § 404(b)(1)'s guidelines for the requisite buffer zone findings, the MOU is inconsistent with the FWPCA. Overburden or excess spoil is a pollutant and waste material, and it is not fill material subject to the Corps' FWPCA § 404 authority when it is discharged into U.S. waters for the primary purpose of waste disposal. Such fills are regulated by EPA under FWPCA § 402. Therefore, neither the Corps nor EPA can authorize FWPCA § 404(b)(1) fills where the primary purpose is waste disposal. Moreover the FWPCA § 404(b)(1) guidelines cannot substitute for the requisite buffer zone findings because the FWPCA § 404(b)(1) guidelines' significantly adverse effects standard is more lenient than the not adversely affect standard of the buffer zone guidelines.

The court also holds that the director has a nondiscretionary duty to make requisite buffer zone findings before authorizing any incursions, including valley fills, within 100 feet of an intermittent or perennial stream. The court then holds that the director cannot make six of the findings required by the buffer zone guidelines because allowing valley fills in streams destroys those stream segments and makes completion of the guidelines impossible. Further, the court holds that the placement of valley fills in intermittent and perennial streams violates federal and state water quality standards by eliminating the buried stream segments for the primary purpose of waste assimilation. Therefore, the court enjoins the director from further violation of his nondiscretionary duty of making the requisite buffer zone findings and from approving surface mining permits that would authorize the placement of excess spoil in intermittent streams and perennial streams for the primary purpose of waste disposal.

[A prior decision in this litigation is published at 29 ELR 21316.]

The full text of this opinion is available from ELR (49 pp., ELR Order No. L-102).

Counsel for Plaintiffs
Patrick C. McGinley
Law Offices of Patrick C. McGinley
737 S. Hills Dr., Morgantown WV 26505
unlisted

Counsel for Defendants
Michael L. Keller, Ass't U.S. Attorney
U.S. Attorney's Office
4000 Robert Byrd U.S. CtHse.
300 Virginia St. E., Charleston WV 25301
(304) 345-2200

[30 ELR 20116]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]