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OHIO VALLEY ENVT'L COALITION v. U.S. ARMY CORPS

No. 12-1999.

716 F.3d 119 (2013)

OHIO VALLEY ENVIRONMENTAL COALITION, INC.; West Virginia Highlands Conservancy, Inc.; Sierra Club; Coal River Mountain Watch, Inc., Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; Robert L. Van Antwerp, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Robert D. Peterson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District, Defendants-Appellees, and Highland Mining Company, Intervenor/Defendant-Appellee.

United States Court of Appeals, Fourth Circuit.

Decided: May 15, 2013.

Attorney(s) appearing for the Case

ARGUED: Joseph Mark Lovett , Appalachian Mountain Advocates, Lewisburg, West Virginia, for Appellants. Michael Thomas Gray , United States Department of Justice, Jacksonville, Florida; Robert G. McLusky , Jackson Kelly, PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: James M. Hecker , Public Justice, Washington, D.C., for Appellants. Michael R. Shebelskie , Hunton & Williams, LLP, Richmond, Virginia; James R. Snyder , M. Shane Harvey , Jackson Kelly, PLLC, Charleston, West Virginia, for Appellee Highland Mining Company. Ignacia S. Moreno , Assistant Attorney General, United States Department of Justice, Jacksonville, Florida, for Federal Appellees.

WILKINSON joined. Judge WILKINSON wrote a separate concurring opinion.

OPINION

NIEMEYER, Circuit Judge:

In connection with a proposed surface coal mine adjacent to Reylas Fork (a stream) in Logan County, West Virginia, the West Virginia Department of Environmental Protection ("WVDEP") issued Highland Mining Company a permit under the Surface Mining Control and Reclamation Act ("SMCRA") to do the mining, finding that the proposed mine would not cause material damage to the hydrologic regime. The WVDEP also issued a water quality...

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