Appeals court rebukes Corps’ mining permit reviews

April 22, 2013 by Ken Ward Jr.

There’s a significant ruling out this morning from a federal appeals court in Kentucky, involving a challenge to the streamlined permitting process for mountaintop removal used by the federal Army Corps of Engineers.  The ruling comes from the 6th U.S. Circuit Court of Appeals, and you can read it online here.

The three-judge panel threw out the Corps’ use of Nationwide Permit 21, calling the agency’s actions “arbitrary and capricious,” and saying the Corps did not follow the applicable Clean Water Act and National Environmental Policy Act regulations, which require it to document its assessment of environmental impacts and examine past impacts before issuing new permits. The ruling said:

Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given.

The case focuses on the way the Corps of Engineers analyzed cumulative impacts of mining and considered the possible benefits of mitigation when it determined that a less-detailed Environmental Assessment was adequate to support issuance of NWP 21, instead of performing a much more elaborate Environmental Impact Statement. Remember that the law, especially NEPA, requires agencies to take a “hard look at environmental consequences” of their actions.

But in this instance, the 6th Circuit found, the Corps of Engineers “omitted the present effects of past actions” when it purported to analyze the cumulative impacts of its mining permit approvals.  The court said:

An environmental assessment that omits consideration of past impacts, followed by a conclusory suggestion that past impacts did not matter, cannot be in conformance. This is especially true where the reviewing agency reauthorizes a nationwide permit involving the same type of mining activities that cause the same type of environmental impacts.

While taking advantage of the more lenient environmental-assessment method (instead of the intensive environmental-impact statement method), the Corps short-circuited the “cumulative impact” analysis by confining its review to an estimate of future impacts. The Corps reasonably relied on data regarding past impacts to project future impacts, but it failed to combine the two to gauge the cumulative impact of reauthorizing permit 21.

In addition, the court found that the Corps of Engineers provided no proof that mining company “mitigation” activities are sufficient to offset mining damage, and reduce any cumulative impacts to being minimal:

We acknowledge that the Corps may rely on post-issuance mitigation procedures to minimize environmental impacts, but in making a minimal-cumulative-impact finding, it must, at a minimum, provide some documented information supporting that finding.

The 6th Circuit ruling was written by Judge Deborah Cook, who was appointed by President George W. Bush. Other panel members were Judge Eugene Siler, who was originally appointed to the federal bench by President Ford, and District Judge George Steeh, an appointee of President Clinton. The ruling overturns a decision by U.S. District Judge David Bunning.

The ruling notes that the nationwide permits at issue (the 2007 version of the NWPs) expired on March 18, 2012, but that the Corps extended those permits through March 18, 2013, for projects started before the 2012 expiration date. Additionally, in order to “provide an equitable an less burdensome transition,” and avoid “significant hardship” for coal operators, the Corps granted a five-year “accommodation” until 2017 to activities authorized under the permits. The

The Corps estimates that approximately 70 surface coal-mining activities authorized under permit 21 qualify for this five-year reauthorization. The 6th Circuit also issued a 60-day stay of its ruling “to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies.”

7 Responses to “Appeals court rebukes Corps’ mining permit reviews”

  1. EnviroSci says:

    I must respectfully take exception to the use of the word “streamlined” when referring to NWP 21 permits. Nationwide permits are issued by the USACE for a variety of activities that impact jurisdiction waters (or waters of the US). They run the gambit from stream crossings to installing boat docks to utility projects. The purpose of NWPs is to allow permits that are for “routine” activities that minimally impact waters of the US and each NWP varies in what it allows to be maximum impacts to waters of the US (usually less that 1 acre or 300 feet). It is true that NWPs require less documentation that Individual Permits (IPs), but the process to acquire such a permit is far from “streamlined”.

  2. Ken Ward Jr. says:

    You may take issue with it if you wish, but it’s a perfectly accurate term to use in this instance.

    The Corps of Engineers itself uses the term to describe NWPs, … see page 3 of the .pdf file.

    I’m not sure where the word “routine” comes from in this context … but the Clean Water Act itself describes the purpose of Nationwide or general permits this way:

    “In carrying out his functions relating to the discharge of dredged or fill material under this section, the Secretary may, after notice of opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.”


  3. EnviroSci says:

    My apologies and I stand corrected. As for “routine” that was my term. The point I should have tried to make is that NWPs are not a substitute for IPs which I believe is the public perception. NWPs are for very specific activities and include very specific maximum allowable impacts to jurisdictional waters. Also, again from my experience, the USACE is more likely to require an IP if there is any gray area as to the applicability of an NWP to a particular project.

  4. Ken Ward Jr. says:


    I’m not sure what IPs and NWPs you’re talking about — but until the recent focus on and litigation over mountaintop removal, the Corps of Engineers was using NWPs to authorize the exact same sorts of activities that it now uses IPs for — huge valley fills related to mountaintop removal coal-mining operations.

    As noted in this story,

    For years, the corps approved valley fills — burying hundreds of miles of streams with waste rock and dirt from mountaintop removal mines — with the streamlined process.


  5. EnviroSci says:

    Doesn’t the current NWP 21 limit the impacts to less than ½ acre and 300 linear feet?

  6. NWP 21 says:

    Appropriate the ruling was issued on Earth Day.

  7. Walt Auvil says:

    Should we expect the Corps to act any differently given their disastrous record before and after Katrina?

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