IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

AT LEXINGTON

KENTUCKY RIVERKEEPER, INC.,

KENTUCKIANS FOR THE COMMONWEALTH,

INC., and KENTUCKY WATERWAYS ALLIANCE,

INC.,

Plaintiffs,

v.CIVIL ACTION NO. 05-36-JBC

COLONEL ROBERT A. ROWLETTE, JR.,

District Engineer, U.S. Army Corps of

Engineers, Louisville District, COLONEL

WILLIAM E. BULEN, District Engineer,

U.S. Army Corps of Engineers, Huntington District,

LIEUTENANT COLONEL BYRON G. JORNS,

District Engineer, U.S. Army Corps of Engineers,

Nashville District, and MAJOR GENERAL

CARL A. STROCK, Chief of Engineers and

Commander of the U.S. Army Corps of Engineers,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

  1. This action is a facial and as-applied challenge to Nationwide Permit 21 (NWP 21), a general permit reissued on January 15, 2002 and effective on March 18, 2002 (hereafter “the 2002 NWP 21”) pursuant to § 404(e) of the Clean Water Act (CWA), 33 U.S.C. § 1344(e). The 2002 NWP 21 is administered in Kentucky by the Huntington, Louisville and Nashville District offices of the United States Army Corps of Engineers (the Corps). Each office regulates different watersheds in the state, but the Louisville District is the lead Corps District for Kentucky. Since March 2002, the Corps has issued dozens of authorizations to coal mining companies to dump their waste rock, dirt and other mining wastes into Kentucky’s streams, which are protected under the CWA as waters of the United States. Cumulatively, since March 2002, the Corps has authorized the burial and destruction of over thirty-five miles of Kentucky streams pursuant to the 2002 NWP 21.
  2. By issuing the 2002 NWP 21, and authorizing waste disposal activities under it, Defendants have violated the substantive and procedural requirements of § 404 of the CWA, 33 U.S.C. § 1344, and its implementing regulations, the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706 et seq., by acting arbitrarily, capriciously, and contrary to law.
  3. Plaintiffs ask the Court to (1) declare that Defendants have violated the statutory and regulatory duties described in this Complaint, (2) enjoin Defendants from authorizing, pursuant to the 2002 NWP 21, further disposal of mining rock and dirt into valley fills associated with surface mines or other discharges of mining waste into waters of the United States in Kentucky, (3) enjoin the Defendants from authorizing, pursuant to the 2002 NWP 21, further discharges associated with the individual mining permits named in this complaint, (4) enjoin Defendants from authorizing further discharges pursuant to the 2002 NWP 21 until they have completed an Environmental Impact Statement (EIS) that complies with NEPA, (5) award to Plaintiffs their costs and expenses, including reasonable attorneys’ and expert witness fees.

PARTIES

  1. Major General Carl A. Strock is the Chief of Engineers and Commander of the U.S. Army Corps of Engineers. He is charged with the supervision and management of all Corps decisions and actions, including the evaluation of Corps decisions and actions under NEPA and § 404 of the CWA, which are the subject of this lawsuit.
  2. Defendant Colonel Robert A. Rowlette, Jr. is the District Engineer for the Louisville District office of the U.S. Army Corps of Engineers in Louisville, Kentucky. The Louisville District office is responsible for issuing permits for discharges of dredged and fill material into waters of the United States in several states, including a major portion of Kentucky, under § 404 of the CWA. The Louisville District is the lead Corps District for Kentucky.
  3. Defendant Colonel William E. Bulen is the District Engineer for the Huntington District office of the U.S. Army Corps of Engineers in Huntington, West Virginia. The Huntington District office is responsible for issuing permits for discharges of dredged and fill material into waters of the United States in several states, including a portion of eastern Kentucky, under § 404 of the CWA.
  4. Defendant Lieutenant Colonel Byron G. Jorns is the District Engineer for the Nashville District office of the U.S. Army Corps of Engineers in Nashville, Tennessee. The Tennessee District office is responsible for issuing permits for discharges of dredged and fill material into waters of the United States in several states, including a portion of southern and western Kentucky, under § 404 of the CWA.
  5. Plaintiff Kentucky Riverkeeper, Inc. (KRI) is a nonprofit membership corporation which is organized under the laws of the Commonwealth of Kentucky, has its main office in Richmond, Madison County, Kentucky, and has approximately 300 members statewide. KRI’s purposes include the protection and restoration of the Kentucky River and the communities that depend on it.
  6. Plaintiff Kentuckians for the Commonwealth, Inc. (KFTC) is a nonprofit membership corporation which is organized under the laws of the Commonwealth of Kentucky, has its main office in London, Laurel County, Kentucky, and has approximately 2,500 members statewide. KFTC’s purposes include promoting social justice and quality of life for all Kentuckians, such as by addressing problems of land and mineral use and ownership, and the participation of citizens in promoting democratic institutions.
  7. Plaintiff Kentucky Waterways Alliance, Inc. (KWA) is a nonprofit membership corporation which is organized under the laws of the Commonwealth of Kentucky, has its main office in Munfordville, Hart County, Kentucky, and has over 200 members statewide. KWA’s purposes include the protection and restoration of Kentucky’s waterways.
  8. Plaintiffs’ members have suffered, and will suffer, injuries to their aesthetic, recreational, environmental and/or economic interests by Defendants’ past and threatened future authorizations of mining activities in Kentucky pursuant to the 2002 NWP 21. These activities make drastic changes to the landscape, eliminate large sections of forests, fill miles of streams, and pollute downstream waters. Plaintiffs’ members live, recreate, flyover, use, and/or enjoy the natural and human environment near these areas. Their use and enjoyment of these areas is reduced by these mining activities.

JURISDICTION AND VENUE

  1. This action arises under the CWA, 33 U.S.C. §§ 1251 et seq., NEPA, 42 U.S.C. §§ 4321 et seq., the APA, 5 U.S.C. §§ 701–706, and the All Writs Act, 28 U.S.C. § 1651(a). The Court has subject matter jurisdiction by virtue of 28 U.S.C. §§ 1331, 1361, 1551, 2201 and 2202.
  2. Venue is appropriate in this judicial district pursuant to 28 U.S.C. § 1391(e) because the activities complained of include activities that are located in this District, including Breathitt County, and Plaintiffs reside in this District.

STATUTORY AND REGULATORY BACKGROUND

  1. Congress enacted the CWA in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this goal, the CWA prohibits the discharge of any pollutant, including dredged spoil or other fill material, into navigable waters unless authorized by a CWA permit. Id., § 1311(a).
  2. Section 404 of the CWA authorizes the Secretary of the Army to issue permits, in certain circumstances, allowing the discharge of dredged or fill material into waters of the United States. Id., § 1344(a). The Secretary of the Army acts through the Chief of Engineers of the Corps. Id., § 1344(d); 33 C.F.R. § 323.6(a).
  3. The Corps is authorized to issue two types of permits under § 404: individual permits and general permits. Id., § 1344(a)–(e).
  4. The Corps issues individual permits under § 404(a) on a case-by-case basis. Id., § 1344(a). Such permits are issued after a review involving, among other things, site-specific documentation and analysis, public notice and opportunity for a hearing, public interest review, and formal determination. 33 C.F.R. §§ 322.3; Parts 323, 325.
  5. In contrast to individual permits, the Corps may allow activities to go forward with minimal Corps involvement by using “general” or nationwide permits (NWPs). NWPs may be issued on a state, regional, or nationwide basis “for any category of activities involving discharges of dredged or fill material if the [Corps] 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 effect on the environment.” 33 U.S.C. § 1344(e)(1). According to the Corps, NWPs are limited to “minor activities that are usually not controversial and would result in little or no public or resource agency comment if they were reviewed through the standard permit process.” 67 Fed. Reg. 2020, 2022 (Jan. 15, 2002).
  6. NEPA requires federal agencies to prepare an Environmental Impact Statement (EIS) on “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The Corps may be required to prepare an EIS before it issues NWPs or individual § 404 permits, but does not prepare any NEPA documentation before it issues authorizations under NWPs. 33 C.F.R. §§ 325.2(a)(4), 330.1(e), 330.5(a)(3).

FACTS

  1. On January 15, 2002, the Corps published notice in the Federal Register that NWP 21 would be reissued for five years, effective March 18, 2002. 67 Fed. Reg. 2020, 2081. The 2002 NWP 21 permits discharges:

of dredged or fill material into waters of the U.S. associated with surface coal mining and reclamation operations provided the coal mining activities are authorized by the DOI, Office of Surface Mining (OSM), or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 and provided the permittee notifies the District Engineer in accordance with the ‘Notification’ General Condition.

  1. When it issued the 2002 NWP 21, the Corps did not determine whether the category of activities covered by that permit would have minimal environmental effects, both individually and cumulatively. Instead, the Corps defined a case-by-case procedure for determining those effects. It required project proponents to file a pre-construction notification (PCN) with the appropriate District. After reviewing the PCN, District Engineers make a case-by-case determination of whether each project will have minimal environmental effects, both individually and cumulatively. The Corps must approve each NWP 21 project before construction can begin.
  2. Although § 404(e) requires the Corps to set forth the “requirements and standards” applicable to activities covered by an NWP, the Corps issued NWP 21 without first defining the “requirements and standards” applicable to NWP 21 activities. NWP 21 imposes no standards. Instead, the only requirements are procedural. The applicant must submit a PCN, as noted above, and a mitigation plan. 67 Fed. Reg. at 2090 (Condition 13(b)(7)). There are no standards as to how mitigation is designed or performed. According to the Corps’ Decision Document on NWP 21, the Corps’ District Engineers “determine on a case-by-case basis the requirement for adequate mitigation to ensure the effects to aquatic systems are minimal.”
  3. Unlike other NWPs reissued by the Corps in 2002, the 2002 NWP 21 does not have any stream-length limits on the permissible amount of filling of streams. Id. at 2024, 2039-42. The Corps established an “absolute prohibition” on using NWPs 39, 40, 42 and 43 to fill more than 300 linear feet of perennial streams, but refused to apply this same prohibition to perennial streams filled under the 2002 NWP 21. Id. at 2042, 2059. The Corps has issued NWP 21 authorizations to mines in Kentucky that have valley fills that bury thousands of feet of perennial streams.
  4. In considering cumulative impacts of the NWPs that it issued in 2002, including the 2002 NWP 21, the Corps only analyzed impacts on the “aquatic” environment. Id. at 2025, 2038, 2040. Even though § 404(e) requires analysis of impacts “on the environment,” the Corps did not consider the terrestrial mining-related environmental impacts of the 2002 NWP 21, such as destruction of forests and elimination of habitat for terrestrial wildlife.
  5. The Corps also made no effort to assess the cumulative impacts of NWP 21 on a regional or nationwide basis. Instead, the Corps authorized its District Engineers to focus only on the cumulative impacts on the particular watershed containing the mining operation when they issued NWP 21 authorizations. Id. at 2024.
  6. The Corps issued the 2002 NWP 21 without preparing an EIS under NEPA. 67 Fed. Reg. at 2025. On June 23, 1998, the Corps issued a Finding of No Significant Impact (FONSI) which concluded that the NWP program “will not have significant individual or cumulative adverse effects on the quality of the human environment and the preparation of an Environmental Impact Statement is not required.” Defendants reached the same conclusion in their January 4, 2002 Decision Document on the 2002 NWP 21.
  7. At the time of its January 15, 2002 decision, the Corps had available to it a large amount of data used for preparing the draft programmatic EIS on Mountaintop Mining/Valley Fills in Appalachia (MM/VF DEIS). That data showed that activities covered by NWP 21 have had, and are likely to continue to have, more than minimal adverse environmental effects, both individually and cumulatively, as defined in 33 U.S.C. § 1344(e), and significant effects on the human environment, as defined in 42 U.S.C. § 4332(C). For example, this data showed that mining and associated valley fills are causing unprecedented and major permanent impacts on aquatic and terrestrial ecosystems in Appalachia, including the elimination of hundreds of thousands of acres of forests, including habitat for dozens of threatened and endangered species, the burial and destruction of hundreds of miles of headwater streams, and the impairment of chemical and biological indicators in waters downstream from fills.
  8. The MM/VF DEIS issued in May 2003 confirms that valley fills are having significant, and more than minimal, cumulative adverse effects on the environment. For example, according to this DEIS:
  9. Two percent (1,208 miles ) of streams in Appalachia have already been buried or harmed, and an equivalent amount will be harmed if present trends continue over the next ten years.
  10. Valley fills are strongly associated with violations of water quality standards for selenium, a toxic metal that bioaccumulates in aquatic life. All 66 selenium violations were downstream from valley fills, and no other tested sites had selenium violations.
  11. Mountaintop mining causes “fundamental changes to the terrestrial environment,” and “significantly affect[s] the landscape mosaic,” with post-mining conditions “drastically different” from pre-mining conditions. Mining impacts on the nutrient cycling function of headwater streams “are of great concern.” Mining impacts to habitat of interior forest bird species have “extreme ecological significance.” Mining could impact 244 terrestrial species, including, for example, 1.2 billion salamanders. The loss of this genetic diversity “would have a disproportionately large impact on the total aquatic genetic diversity of the nation.”
  12. Past, present, and future mining in Appalachia may cumulatively impact 1,408,372 acres, or 11.5% of the study area.
  13. The 2002 NWP 21 is not limited to “similar activities” and instead applies equally to valley fills and surface impoundments, even though those two structures have significantly different environmental impacts. Valley fills are composed of solid materials, while surface impoundments often contain millions of gallons of liquid and semi-liquid materials.
  14. Since March 2002, the Corps has issued over 50 authorizations under the 2002 NWP 21 for numerous mining-related projects in Kentucky that will have more than minimal adverse environmental effects, both individually and cumulatively, as listed in Appendix A to this Complaint. These projects will disturb more than 55 square miles of land and bury more than 35 miles of Kentucky streams with 191 valley fills containing mining waste.
  15. In issuing authorizations under the 2002 NWP 21, the Corps typically requires applicants to submit mitigation plans to compensate for the loss of streams, and decides on a case-by-case analysis whether such plans reduce above-minimal environmental effects of projects to minimal levels. Thus, the Corps allows NWP 21 applicants to “buy down” environmental effects to minimal levels through mitigation.
  16. The Corps has pending applications for additional authorizations under the 2002 NWP 21 for other mining related-projects in Kentucky that will have more than minimal adverse environmental effects, both individually and cumulatively, as listed in Appendix B to this Complaint.

CLAIMS

COUNT ONE

  1. Defendants’ issuance of the 2002 NWP 21, both on its face and as applied to the authorizations listed in Appendix A, is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law, in violation of the APA, 5 U.S.C. § 706(2)(A), and the CWA, 33 U.S.C. § 1344(e), for the following reasons:
  2. As the U.S. District Court for the Southern District of West Virginia recently held in OVEC v. Bulen, Civil No. 03-2281, 2004 WL 1576726 (July 8, 2004), the 2002 NWP 21 defines a procedure for determining minimal environmental effects on a case-by-case basis after it is issued, rather than defining a category of activities before it is issued that will invariably have minimal environmental effects. In addition, by combining features of both individual and general permitting, the 2002 NWP 21 allows activities that have more than minimal environmental effects to be permitted without being subject to public notice, public comment, or opportunity for hearing as required by the CWA.
  3. The Corps never determined that the 2002 NWP 21 would have only minimal cumulative adverse effects on the environment as a whole, and instead limited its determination to adverse effects on only the aquatic environment;
  4. The Corps never determined that the 2002 NWP 21 would have only minimal cumulative adverse environmental effects on a nationwide basis, and instead limited its determination to adverse effects on individual watersheds;
  5. Activities subject to the 2002 NWP 21, in conjunction with activities subject to prior NWP 21s, will have more than minimal individual and cumulative adverse effects on the environment;
  6. Two activities subject to the 2002 NWP21—valley fills and surface impoundments—are not similar in nature;
  7. Unlike other NWPs reissued in 2002, the 2002 NWP 21 has no limit on filling of perennial streams;
  8. The Corps’ use of compensatory mitigation to offset the effects of permanently burying streams is not based on substantial evidence;
  9. The Corps’ NWP 21 authorizations are likely to cause significant degradation of water quality, in violation of 40 C.F.R. § 230.10(c); and
  10. The Corps has no authority to use case-by-case mitigation buy-downs to meet the minimal effects requirement.

COUNT TWO

  1. Defendants’ 1998 and 2002 FONSIs were arbitrary, capricious, and contrary to law, in violation of the APA, 5 U.S.C. § 706(2)(A), because the issuance of the 2002 NWP 21 is a major federal action that may significantly affect the quality of the human environment, and thus Defendants were required to perform an EIS pursuant to NEPA, 42 U.S.C. § 4332(C) (2000), before the permit was issued.
PRAYER FOR RELIEF

Plaintiffs respectfully request this Court to grant the following relief: