KENTUCKIANS FOR THE COMMONWEALTH v. RIVENBURGH

No. CIV.A.2:01-0770.

204 F.Supp.2d 927 (2002)

KENTUCKIANS FOR THE COMMONWEALTH, INC., Plaintiff, v. Colonel John RIVENBURGH, Colonel, District Engineer; Robert B. Flowers, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; and Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Division, U.S. Army Corps of Engineers, Huntington District, Defendants, and Kentucky Coal Association, Pocahontas Development Company, and AEI Resources, Inc., Intervenor-Defendants

United States District Court, S.D. West Virginia. Charleston Division.

May 8, 2002.


Attorney(s) appearing for the Case

Joseph M. Lovett, Esq., John W. Barrett, Esq., Lewisburg, WV, Joe F. Childers, Esq., Lexington, KY, James M. Hecker, Esq., Trial Lawyers for Public Justice, Washington, DC, for Plaintiff.

Michael L. Keller, Esq., Kasey Warner, Esq., United States Attorney, United States Attorney's Office, Charleston, WV, Ruth Ann Storey, Esq., U.S. Department of Justice, Environment & Natural Resources Div., General Litigation Section, Washington, DC, Terry Clarke, Esq., U.S. Army Corps of Engineers, Office of Counsel, Huntington, WV, Steven E. Rusak, Esq., John C. Cruden, Esq., Jon M. Lipshultz, Esq., Thomas L. Sansonetti, Esq., U.S. Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC, Russell W. Petit, Esq., U.S. Army Corps of Engineers, Office of Chief Counsel, Washington, DC, for Corps Defendants.

W. Henry Lawrence, IV, Esq., Robert D. Pollitt, Esq., Ancil G. Ramey, Esq., Richard L. Lewis, Esq., Steptoe & Johnson, Charleston, WV, for Defendant-Intervenor Pocahontas Development Company.

Richard J. Bolen, Esq., Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, Timothy J. Hagerty, Esq., Amy D. Cubbage, Esq., Frost, Brown, Todd LLC, Louisville, KY, for Defendant-Intervenor AEI Resources, Inc.

Robert G. McLusky, Esq., James R. Snyder, Esq., Lindsey K. Griffith, Esq., Jackson & Kelly, Charleston, WV, for Defendant-Intervenor Kentucky Coal Association.


MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are cross motions for summary judgment by Plaintiff Kentuckians for the Commonwealth, Inc. (KFTC), Defendant officers of the Army Corps of Engineers (Corps), and Intervenor-Defendants on Count One.

The Court holds that § 404 of the Clean Water Act does not allow filling the waters of the United States solely for waste disposal. Agency rulemaking or permit approval that holds...

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