Ohio Valley Environmental Coalition v. Aracoma Coal Co.

Reversed, vacated and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a separate opinion dissenting in part and concurring in part.

OPINION

This appeal concerns a challenge by Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as “OVEC”) to the U.S. Army Corps of Engineers (“Corps”) issuance of *186four permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations. Granting judgment for OVEC, the district court rescinded the permits as violations of the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. (2000), the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (2000), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (2000). The court also enjoined all activity under those permits and remanded to the Corps for further proceedings consistent with its order.

Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were “waters of the United States” and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments.

The Corps now appeals these two orders. For the reasons set forth below, we reverse and vacate the district court’s opinion and order of March 23, 2007, and vacate the district court’s injunction. We also reverse the district court’s June 13, 2007, grant of declaratory relief and we remand for further proceedings consistent with this opinion.

I.

The mountaintop removal method of surface coal mining, pioneered in West Virginia, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as “spoil.” Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock and soil and incorporation of air causes significant swelling. As a result, large quantities of the blasted material cannot be replaced, and this excess spoil (“overburden”) remains in the valley, creating a “valley fill” that buries intermittent and perennial streams in the process.

Water that collects in the fill must be moved out to ensure the fill’s continued stability. Thus, an underdrain system is constructed by placing large boulders up to and above the ordinary high-water mark of the stream. The collected water is then channeled into a treatment pond, where sediment from the runoff is allowed to settle. Sediment ponds usually are constructed in existing streambeds, using earth and rock to create an embankment. After sediments have settled out of the fill runoff, the treated water is discharged from the sediment pond back into existing streams. When practicable, a sediment pond will be constructed in the streambed immediately adjacent to the end (or “toe”) of the fill. But, because West Virginia’s steep, mountainous topography often prevents this kind of positioning, a short stream segment is frequently used to move runoff from the fill downstream to the sediment pond. Once a valley fill is stabilized, the embankments of the sediment pond are removed, and the ponds and the stream segments are restored to their pre-project condition.

Much of the impact of a valley fill project is felt by headwater streams. Head-water streams are small streams that form the origin of larger streams or rivers, and may be intermittent or ephemeral. Intermittent streams receive their flow from both surface runoff and groundwater discharge, while ephemeral streams rely on *187major rain or snow events for their flow. The precise role of headwater streams in overall watershed ecology is a matter of some debate in this litigation, as we discuss more below, but all parties agree that these streams perform important ecological functions.

OVEC initiated this challenge in September 2005 in the United States District Court for the Southern District of West Virginia, shortly after the Corps issued an individual valley fill permit and accompanying Combined Decision Document (“CDD”) to the Araeoma Coal Company for the Camp Branch Surface Mine project (“Camp Branch”) under its CWA § 404 authority.1 As the Corps issued subsequent § 404 permits to West Virginia mining operations, the district court allowed OVEC to amend its complaint several times to include the newly issued permits.

In addition to the Camp Branch permit, OVEC’s Third Supplemental Complaint raised challenges to the individual § 404 permits issued to the Elk Run Coal Company for the Black Castle Mine (“Black Castle”), and to Alex Energy, Inc., for the Republic No. 1 and Republic No. 2 Surface Mines (“Republic No. 1” and “Republic No. 2”). The Republic No. 1 challenge was ultimately dismissed on ripeness grounds, but a challenge raised in a separate complaint to the individual permit issued to Independence Coal Company for the Laxare East Surface Mine (“Laxare East”) was consolidated with this proceeding. Each of the affected companies intervened as defendants in the action, as did the West Virginia Coal Association.

All together, the four challenged permits authorize the creation of 23 valley fills and 23 sediment ponds, and they impact 68,841 linear feet of intermittent and ephemeral streams, or just over 13 miles.2 For each of the four permits, the Corps prepared Environmental Assessments that concluded that the permitted activity would not result in significant environmental impacts given planned mitigation measures. On that basis, the Corps issued a “Finding of No Significant Impact” for all four permits.

OVEC’s Third Supplemental Complaint charged that the Corps’ issuance of the § 404 fill permits for these mining projects violated both substantive and procedural provisions of the CWA and NEPA, and were “arbitrary, capricious, and an abuse of discretion” under the APA. According to OVEC, the Corps was required under *188NEPA to prepare an Environmental Impact Statement for each of the projects before issuing a permit, given the significant individual and cumulative adverse effects the projects would have on water quality, aquatic and terrestrial ecosystems and habitats, species survival and diversity, crucial stream functions, forests, and the aesthetic value of the destroyed mountains. Similarly, OVEC claimed that the Corps failed to properly determine the adverse individual and cumulative impacts to the affected aquatic ecosystems in accordance with the CWA and the Corps’ CWA Guidelines.

Trial in the case was originally scheduled for June 20, 2006, but on June 16, on the Corps’ motion, the district court remanded the permits to the Corps and stayed the proceedings. Almost a month later, the Corps reissued the permits, but this time with a supplemented administrative record that incorporated new comments from the public and the parties, including the reports prepared by OVEC’s proposed expert witnesses. The district court lifted its stay on July 26, and a six-day bench trial was held in October 2006.

The district court granted judgment in favor of the plaintiffs on March 23, 2007, rescinding the permits, enjoining the Corps and Intervenors from taking any action under those permits, and remanding the permits to the Corps for further proceedings consistent with the court’s order.3

The district court found, inter alia, that the probable impacts of the valley fills would be significant and adverse under both the CWA and NEPA; that the mitigation plans for each permit were not sufficient to compensate for those adverse impacts; that, in each permit, the Corps improperly limited its scope of review under NEPA to look only at the impact on jurisdictional waters rather than the broader impact of the entire valley fill project; and, finally, that the Corps inadequately evaluated the cumulative impacts of the projects.

On June 13, 2007, the district court granted summary judgment to OVEC on a separate claim under which the plaintiffs sought a declaratory judgment that the stream segments running from the valley fill toes to the sediment pond embankments are “waters of the United States,” and that the Corps thus did not have authority to permit the discharge of pollutants into these segments with a CWA § 404 permit. According to the district court, mining operators who wished to discharge runoff from the fill into a stream segment needed to obtain a CWA § 402 permit from the EPA or proper state authority. On September 13, 2007, the district court granted, pursuant to Federal Rule of Civil Procedure 54(b), the Interve-nors’ motion for entry of final judgment on the June 13 order.4 The Corps and Inter-venors filed timely notices of appeal from both the March 23 and June 13 orders.

On appeal, the Corps contends that it is entitled to deference on its determination about the scope of its NEPA analysis and that its findings on individual and cumulative impacts and mitigation were not arbitrary or capricious. The agency further argues that its interpretation of its CWA regulations — treating stream segments and sediment ponds as part of a unitary waste treatment system and thus excepting them from separate CWA § 402 per*189mitting- — was entitled to deference. Inter-venors have raised these same challenges to the district court’s ruling, but also argue that OVEC’s stream segment claim was barred in the first place under principles of res judicata. OVEC has also filed two motions for judicial notice, asking this Court to take notice of five new permits that the Corps has issued since the district court’s orders were entered.

II.

We review de novo a district court’s findings on an administrative record. See Crutchfield v. County of Hanover, 325 F.3d 211, 217 (4th Cir.2003). This de novo standard applies to questions of both law and fact. See id.

Both NEPA and CWA claims are subject to judicial review under the APA, 5 U.S.C. § 706 (2006). For all agency actions, a reviewing court must set aside the action if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2006); Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III.

A complex statutory framework under-girds the regulation of valley fills and associated sediment ponds, and it is this framework that provides the foundation for our opinion. Thus, we begin with a brief overview of the relationship of the four statutes that affect the scope of the Corps’ authority to issue fill permits in connection with mountaintop coal mining operations: the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), 30 U.S.C. § 1201 et seq. (2000), the CWA, NEPA, and the APA.

A.

Congress passed SMCRA in 1977 to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” 30 U.S.C. § 1202(a) (2000). Congress also recognized a need, however, to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” 30 U.S.C. § 1202(f) (2000). In striking this balance, SMCRA utilizes a “cooperative federalism” approach, allocating responsibility for the regulation of surface coal mining among both state and federal agencies. Bragg v. W. Va. Coal Ass’n, 248 F.3d 275, 288 (4th Cir.2001).

Under SMCRA, states have “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations” on non-Federal lands, so long as their regulatory program has been approved by the Secretary of the Interior as satisfying the Act’s minimum requirements.5 30 U.S.C. § 1253 (2000). Once a state’s SMCRA program has been approved, anyone wishing to engage in surface coal mining operations within the state must first obtain a permit from the state’s regulatory authority.6 30 U.S.C. § 1256(a) (2000). In West Virginia, the federally approved regulatory authority is the Department of Environmental Protection (‘WVDEP”).

Regulation of the disposal of excess spoil material from surface coal mining opera*190tions is within SMCRA’s purview. As part of its environmental protection performance standards, SMCRA requires that all excess spoil material from surface mining operations be disposed of “in a controlled manner ... and in such a way to assure mass stability and to prevent mass movement.” 30 U.S.C. § 1265(b)(22)(A) (2000). The Act clearly contemplates that valley fills will be used in the disposal process. See 30 U.S.C. § 1265(b)(22)(D) (2000) (requiring that, where the disposal area contains “springs, natural water courses, or wet weather seeps ... lateral drains [must be] constructed from the wet areas to the main under-drains in such a manner that filtration of the water into the spoil pile will be prevented.”); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir.2003) (“[I]t is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States.... ”).

B.

An SMCRA permit by itself, however, does not suffice to allow a mine operator to construct a valley fill in conjunction with its mountaintop removal activities. Mining companies must also obtain permits certifying their project’s compliance with the CWA. The CWA aims to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by eliminating “the discharge of pollutants into the navigable waters.” 33 U.S.C. § 1251(a)(2000). In the surface mining context, three sections of the CWA are relevant to the permitting process.

First, a mine operator applying for a federal permit under the CWA must comply with CWA § 401, 33 U.S.C. § 1341 (2000), by providing the federal permitting agency with a certification from the proper state authority — in this case, WVDEP— stating that any discharge from the mine site will comply with all applicable water quality standards. Next, the mine operator must obtain a National Pollutant Discharge Elimination System (“NPDES”) permit pursuant to CWA § 402, 33 U.S.C. § 1342 (2000), if their project involves the discharge of a pollutant from a point source within the mining operation into navigable waters.7 33 U.S.C. §§ 1342, 1362(12) (2000). The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7) (2000). The release of treated waters from sediment ponds back into a stream, for example, require a CWA § 402 NPDES permit.

States wishing to administer their own NPDES program must be approved by the Environmental Protection Agency (“EPA”) before they can begin issuing § 402 permits. 33 U.S.C. § 1342(c) (2000). West Virginia has had an EPA-approved § 402 program since 1982. See Approval of West Virginia’s NPDES Program, 47 Fed. Reg. 22, 363 (May 24,1982).

Finally, and most importantly for the purposes of this litigation, surface mining projects that intend to dispose of excess spoil from their mining operations in jurisdictional waters must obtain a CWA § 404, 33 U.S.C. § 1344 (2000), permit from the Corps. Section 404 permits allow “the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C.A. § 1344(a) (2008). The Corps uses § 404 permits to authorize the *191fill activity itself, as well as the construction of downstream sediment ponds.8

In issuing § 404 permits, the Corps follows the § 404(b)(1) Guidelines (“CWA Guidelines”) promulgated by the Environmental Protection Agency (“EPA”) pursuant to 33 U.S.C. § 1344(b)(1) (2008), and incorporated by the Corps into its own regulations. See 40 C.F.R. pt. 230 (2008); 33 C.F.R. § 320.2(f) (2008). The Guidelines prohibit discharges that “will cause or contribute to significant degradation of the waters of the United States.”9 40 C.F.R. § 230.10(c) (2008). A discharge contributes to significant degradation if it has “[significantly adverse effects” on human health or welfare, on aquatic life and other wildlife dependent on aquatic ecosystems, on aquatic ecosystem diversity, productivity, and stability, or on recreational, aesthetic, and economic values. Id.

The Corps’ § 404 permit evaluation process must also include a public interest review component, in which “[t]he benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.” 33 C.F.R. § 320.4(a)(1) (2008). The Corps’ decision to issue a permit “should reflect the national concern for both protection and utilization of important resources.” Id. Ultimately, the § 404 permitting process requires extensive review and coordination with numerous federal and state agencies, as well as significant consideration of the public interest.

C.

Under NEPA, federal agencies must take a “hard look” at the potential environmental consequences of their actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Because NEPA is a procedural and not a results-driven statute, even agency action with adverse environmental effects can be NEPA-compliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs. Id.

NEPA requires only that federal agencies prepare an Environmental Impact Statement for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (2000). Significance is determined by evaluating both the context of the action and the intensity, or severity, of the impact. 40 C.F.R. § 1508.27 (2008). Where it is not readily discernible how significant the environmental effects of a proposed action will be, federal agencies may prepare an Environmental Assessment (“EA”). 40 C.F.R. § 1501.4(b) (2008). An EA is a “concise public document ... that serves to ... [bjriefiy provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact [(“FONSI”)].” 40 C.F.R. § 1508.9(a)(1) (2008); see also 33 C.F.R. §§ 230.10-230.11 (2008) (explaining the Corps’ requirements for an EA).

Even where an EA determines that a proposed action will have a significant environmental impact, an agency may *192avoid issuing an EIS where it finds that mitigating measures can be taken to reduce the environmental impact of the project below the level of significance. Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 62 (4th Cir.1991). In these situations, the agency can issue a “so-called mitigated FONSI.” Spiller v. White, 352 F.3d 235, 241 (5th Cir.2003) (internal quotations omitted).

D.

Claims challenging federal agency action under the CWA and NEPA are subject to judicial review under the APA. 5 U.S.C. § 702 (2006); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir.1992). In issuing the § 404 permits challenged here, the Corps was engaged in informal (“notice and comment”) rule-making. 33 U.S.C. § 1344(a) (2000); Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 496 (4th Cir.2005). Such informal rulemaking, done pursuant to Section 4 of the APA, 5 U.S.C. § 553 (2006), must be reviewed under Section 10 of the APA, 5 U.S.C. § 706(2) (2006). Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.1976).

Section 10 of the APA establishes that, as a general rule, “agency action, findings, and conclusions” will be set aside only when they are “found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (2000); Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid. Natural Res. Def. Council, Inc. v. EPA 16 F.3d 1395, 1400 (4th Cir.1993). Especially in matters involving not just simple findings of fact but complex predictions based on special expertise, “a reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).

In determining whether agency action was arbitrary or capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made. Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes “a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); accord Ohio River Valley Envtl. Coal, Inc. v. Kempthorne, 473 F.3d 94, 102-03 (4th Cir.2006).

The “arbitrary and capricious” standard is not meant to reduce judicial review to a “rubber-stamp” of agency action. Ethyl Corp., 541 F.2d at 34. While the standard of review is narrow, the court must nonetheless engage in a “searching and careful” inquiry of the record. Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. But, this scrutiny of the record is meant primarily “to educate the court” so that it can “understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices *193open to the agency and those made.” Ethyl Corp., 541 F.2d at 36.

IV.

With this statutory guidance in mind, we turn now to the substance of this appeal, first taking up the issues on appeal concerning the district court’s March 23, 2007, opinion and order.10

A.

The Corps and Intervenors (collectively “Appellants”) claim on appeal that the Corps’ decision about the scope of its NEPA analysis for each of these permits was entitled to deference as a reasonable interpretation of its own regulations. The district court found that the Corps acted contrary to its regulations by limiting the scope of its NEPA analysis to the impact of the filling of jurisdictional waters and by not looking at the larger environmental impacts of the valley fill as a whole. Agreeing with the district court, OVEC argues that the Corps’ NEPA analysis should have considered all environmental impacts caused by the fill, including the impacts to the upland valleys where the fills will be located. The Corps counters that it reasonably determined that, under its regulations, its jurisdictional reach was limited to the affected waters and adjacent riparian areas and that this determination is entitled to deference.

Because we are asked here to review the Corps’ interpretation of its own regulations, our review is cabined to assessing the reasonableness of that interpretation. This kind of review is highly deferential, with the agency’s interpretation “controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotations omitted); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.2003) (noting that, when reviewing an agency’s interpretation of its own regulation, “[t]he reviewing court does not have much leeway”). In applying this principle, also known as “Auer deference” or “Seminole Rock deference,” we must first determine whether the regulation itself is unambiguous; if so, its plain language controls. See Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); United States v. Deaton, 332 F.3d 698, 709 (4th Cir.2003). If ambiguous, *194however, Auer/Seminole Rock deference is applied. See Christensen, 529 U.S. at 588, 120 S.Ct. 1655; Deaton, 332 F.3d at 709.

NEPA requires federal agencies to take a “hard look” at the environmental consequences of their actions, but the statute does not specify how an agency should determine the scope of its NEPA analysis. Wetlands Action Network v. United States Army Corps of Eng’rs, 222 F.3d 1105, 1115 (9th Cir.2000). The Corps’ implementing regulations, however, specify that the proper scope of analysis for NEPA review is “to address the impacts of the specific activity requiring a DA [Department of the Army] permit and those portions of the entire project over which the [Corps] district engineer has sufficient control and responsibility to warrant Federal review.” 33 C.F.R. pt. 325, App. B, § 7(b)(1) (2008). OVEC’s challenge to the scope of the Corps’ NEPA review rests largely on its misapprehension of what constitutes the “specific activity” requiring a permit.

The Corps’ regulations are unambiguous in requiring a district engineer to address the impacts of the “specific activity requiring a DA [Department of the Army] permit” in its NEPA analysis. Id. According to OVEC, the Corps’ § 404 permit is a permit for the entire valley fill, down to the last shovelful of dirt at the edge of the valley. But § 404 is itself unambiguous about what the Corps is authorized to permit under the CWA: the Corps “may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (2000) (emphasis added). The specific activity that the Corps is permitting when it issues a § 404 permit is nothing more than the filling of jurisdictional waters for the purpose of creating an underdrain system for the larger valley fill. In fact, the Corps has no legal authority to prevent the placement of fill material in areas outside of the waters of the United States. All other fill activity falls under the exclusive jurisdiction of the WVDEP, as the federally approved state SMCRA regulatory authority.

Of course, even if the “specific activity” being permitted under CWA § 404 is the filling of valley streams, the Corps could still be required under NEPA to consider larger impacts of the broader valley fill project if the Corps is found to have “sufficient control and responsibility to warrant Federal review.” 33 C.F.R. pt. 325, App. B, § 7(b)(1) (2008). In eases where the permitted activity is only one part of a larger project, the regulations specify that the Corps has “control and responsibility for portions of the project beyond the limits of Corps jurisdiction where the Federal involvement is sufficient to turn an essentially private action into a Federal action. These are eases where the environmental consequences of the larger project are essentially products of the Corps permit action.” 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008) (emphasis added).

The regulations go on to suggest several factors to be considered in making this determination, including:

(i) Whether or not the regulated activity comprises “merely a link” in a corridor type project (e.g., a transportation or utility transmission project).

(ii) Whether there are aspects of the upland facility in the immediate vicinity of the regulated activity which affect the location and configuration of the regulated activity.

(iii) The extent to which the entire project will be within Corps jurisdiction.

(iv) The extent of cumulative Federal control and responsibility.

Id.

OVEC’s argument that the Corps has sufficient control and responsibility over *195the larger valley fill to warrant its consideration of the environmental impacts of the entire valley fill project has some intuitive appeal. As OVEC points out, “[t]he Corps could not seriously contend that, if the § 404 permit for the stream-covering portions of the fill were denied, the applicants could build the remainder of the fills with a cutout around the streams. That could be dangerous. The valley fill is designed for stability as an integral unit.” (Appellees’ Br. at 35 n. 2.) Undoubtedly, obtaining a § 404 permit is a “small but necessary” component of the overall upland project. United States Army Corps of Engineers, Combined Decision Document for the Camp Branch Surface Mine Project 4 (July 6, 2006) [hereinafter Camp Branch CDD ]; see also United States Army Corps of Engineers, Combined Decision Document for the Black Castle Surface Mine Project 6 (July 18, 2006) [hereinafter Black Castle CDD ]; United States Army Corps of Engineers, Combined Decision Document for the Laxare East Surface Mine Project 7 (July 18, 2006) [hereinafter Laxare East CDD ]. But the fact that the Corps’ § 404 permit is central to the success of the valley-filling process does not itself give the Corps “control and responsibility” over the entire fill. See Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1116-17 (9th Cir.2000) (observing that the fact .that construction of a development project covering hundreds of acres was dependent on a Corps § 404 permit to fill sixteen acres of wetlands did not suffice to make the Corps responsible for including the entire project in the scope of its NEPA analysis).

The Corps’ jurisdiction under CWA § 404 is limited to the narrow issue of the filling of jurisdictional waters. To say that the Corps has a level of control and responsibility over the entire valley fill project such that “the environmental consequences of the larger project are essentially products of the Corps permit action,” 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008), is to effectively read out of the equation the elaborate, congressionally mandated schema for the permitting of surface mining operations prescribed by SMCRA.

Under SMCRA, the state of West Virginia has “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations.” 30 U.S.C. § 1253 (2000). Congress clearly contemplated that the regulation of the disposal of excess spoil and the creation of valley fills fall under the SMCRA rubric. See 30 U.S.C. § 1265(b)(22)(D) (2000) (requiring that lateral drains be constructed where a spoil disposal area contains “springs, natural water courses or wet weather seeps”); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir.2003) (“[I]t is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States.... ”).

As part of its federally approved SMCRA regulatory program, the WVDEP surface mine permitting process examines “[ejvery detail of the manner in which a coal mining operation is to be conducted .... including] the plan for disposal of excess spoil for surface ... mining opera-tions_” (Br. for the W. Va. Dep’t of Commerce and the W. Va. Dep’t of Envtl. Prot. as Amici Curiae Supporting Appellants at 13.) As the Corps explains in its permits, “the social and environmental impacts associated with surface coal mining and reclamation operations are appropriately analyzed by WVDEP in this context before that agency decides whether to permit the mining operation under SMCRA.” Camp Branch CDD 4; Black Castle CDD 6; Laxare East CDD 7; United States Army Corps of Engineers, Combined Decision Document for the Republic No. 2 *196Surface Mine Project 6 (July 6, 2006) [hereinafter Republic No. 2 CDD ]. A SMCRA permit applicant must provide detailed information about possible environmental consequences of the proposed operations, as well as assurances that damage to the site will be prevented or minimized during mining and substantially repaired after mining has come to an end. The WVDEP must ensure compliance with SMCRA’s environmental protection performance standards. See 30 U.S.C. §§ 1257,1260,1265 (2000).

If the Corps, by issuing a § 404 permit, can turn a valley fill project “into a Federal action,” 33 C.F.R. pt. 325, App. B, § 7(b)(2) (2008), the WVDEP’s regulation of the fill process becomes at best duplica-tive, and, at worst, meaningless. NEPA plainly is not intended to require duplication of work by state and federal agencies. See 40 C.F.R. § 1506.2(b) (“Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements....”). The Corps’ general regulatory approach echoes this sentiment. See 33 C.F.R. § 320.1(a)(5) (2008) (“The Corps believes that state and federal regulatory programs should complement rather than duplicate one another.”); 33 C.F.R. § 337.1 (2008) (noting that, in issuing public notice for projects involving the discharge of fill material into jurisdictional waters, “[district engineers are encouraged to develop procedures to avoid unnecessary duplication of state agency procedures”).

SMCRA also calls for a coordinated and non-duplicative approach to environmental review. See 30 U.S.C. § 1253(a)(6) (2000) (requiring that a state SMCRA program establish “for the purposes of avoiding duplication, ... a process for coordinating the review and issuance of permits for surface coal mining and reclamation operations with any other Federal or State permit process applicable to the proposed operations”). While SMCRA’s provisions should not be construed as “superseding, amending, modifying, or repealing” the requirements of NEPA or the CWA, 30 U.S.C. § 1292(a) (2000), neither should NEPA be construed to require the Corps to essentially federalize an environmental review process that has already been delegated to federally approved state programs. See Wetlands Action Network, 222 F.3d at 1117 (noting, in support of its finding that the Corps’ NEPA analysis for a wetlands-filling permit need not include the effects of the larger development project, that state regulations control the design of the project and that the larger project was already subject to extensive state environmental review); Sylvester v. U.S. Army Corps of Eng’rs, 884 F.2d 394, 401 (9th Cir.1989) (“We, finally, draw comfort from the fact that ordinary notions of efficiency suggest a federal environmental review should not duplicate competently performed state environmental analyses.”).

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