Kentuckians for the Commonwealth v. U.S. Army Corps of Eng’rs

The Surface Mining Control and Reclamation Act, 30 U.S.C. 1202(a) allows states to enact and administer regulatory programs consistent with federal standards, subject to federal approval. Kentucky’s Department for Natural Resources assumed responsibility for SMCRA implementation through its Division of Mine Permits, Ky. Rev. Stat. 350.028, .465(2). Its program has been approved by the U.S. Department of the Interior since 1982. A typical surface mining operation also requires permits under the Clean Water Act, 33 U.S.C. 1251: a 401 permit for “discharge into the navigable waters;” a 402 permit for “discharge of any pollutant, or combination of pollutants;” and a 404 permit for “discharge of dredged or fill material into the navigable waters at specified disposal sites.” A 404 permit is issued by the U.S. Army Corps of Engineers in compliance with EPA guidelines, 33 U.S.C. 1344(b)(1). Kentucky authorized a Perry County surface mining operation; the operator obtained 404 permit from the Corps, authorizing it to “mine through” and fill surface stream beds, which are already in a degraded state, requiring offset of the limited environmental effect by improving other streams in the watershed. Opponents argued that the National Environmental Policy Act required the Corps to consider the public health impacts related to surface mining in general, and that the Corps violated the CWA by using flawed analysis of the mitigation plan. The district court rejected the arguments. The Sixth Circuit affirmed.

Kentuckians for the Commonwealth v. U.S. Army Corps of Eng’rs