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Court Invalidates Clean Water Act Section 404 Nationwide Permit for Surface Mining


On April 23, the U.S. Sixth Circuit Court of Appeals invalidated the U.S. Army Corps of Engineers Nationwide Permit 21 (NWP 21) for discharges of dredged or fill material associated with surface coal mining.  The case, styled Kentucky Riverkeeper v. Rowlette, involved approximately 70 surface mines in Kentucky that had been authorized to discharge under NWP 21.

Under Section 404 of the Clean Water Act, discharges of “dredge or fill” material into waters of the United States require a permit issued by the Corps of Engineers.  In certain instances, the Corps issues a “nationwide” permit based on its decision that a particular category of activities involve minimal environmental impacts.  Where an activity is authorized by such a nationwide permit, the entity in need of a permit can obtain one in a more streamlined process.  Where nationwide permits are not available, the discharger must obtain an individual Section 404 permit, which requires evaluation of environmental impacts.

Environmental interest groups had long claimed that the Corps erred in evaluating the environmental impacts of surface mining when it decided to issue NWP 21.  Use of the permit in West Virginia was struck down by a federal court in 2009.  The Kentucky Riverkeeper case challenged the use of the same permit for surface mines in Kentucky.  A Kentucky federal district court had held that the Corps fulfilled its legal obligation under the Clean Water Act and NEPA by evaluating the environmental impact of past surface mining activities on a national level using what is known as a “national environmental baseline” when it issued NWP, and denied the environmental group’s challenge.  This decision was appealed to the Sixth Circuit.  That appellate court ruled that the Corps failed to properly examine the cumulative impacts of past mining as well as the cumulative impacts of mining in particular areas.  The court also ruled that the national baseline approach used by the Corps was contrary to specific NEPA and Clean Water Act regulations.  Finally, the court held that in any event the Corps had failed to adequately document the review that it did undertake, so its decision on the evaluation of the impacts could not be supported in the legal challenge.

NWP 21 was last issued in 2007, and the ruling only impacts those 70 or so sites in Kentucky that were authorized under the permit.  Because the ruling causes uncertainty for these sites, the Sixth Circuit has stayed its ruling for 60 days, to allow all parties to assess its impact.  The Sixth Circuit’s opinion contains language suggesting that the mines which discharged under the vacated NWP 21 should not be liable for Clean Water Act violations even though the permit was vacated, because the permit was in effect at the time the discharges occurred.

The decision should not affect any currently planned but not completed or future surface mining activities, because the Corps no longer authorizes surface mines to discharge using NWP 21 in any event.  Surface coal mining facilities now all require an individual permit.  At a recent meeting with the coal industry, a representative of the Corps reported that all but one of the surface mines authorized to discharge under NWP have completed the activities authorized by the permit.

To view a complete PDF of the March/April 2013 issue of the Environmental Letter, click HERE.

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