## Facts

- A coal company obtained a state surface-mining permit for a mountaintop mining project in Martin County, Kentucky that proposed disposing of overburden and mining spoil in adjacent valleys, burying headwater streams.
- The company sought U.S. Army Corps of Engineers authorization under Clean Water Act (CWA) § 404 to discharge “dredged or fill material” into waters of the United States.
- The Corps authorized the valley fills under Nationwide Permit 21, treating the mining overburden/spoil as “fill material” because it would replace waters with dry land and change streambed elevation.
- Kentuckians for the Commonwealth, Inc. (KFTC) sued, asserting the discharge was mining waste regulated under CWA § 402 (NPDES) rather than § 404, and that the Corps exceeded its statutory authority.
- The district court held “fill material” did not include discharges made solely for disposal (such as mining spoil), declared the § 404 authorization invalid, and entered declaratory and injunctive relief.
- The Corps and intervening coal companies appealed.

## Issues

1. Whether, under the CWA and the Corps’ 1977 regulations, the Corps had authority under § 404 to permit valley fills that deposit mining overburden and spoil into streams.
2. Whether the Corps’ pre-2002 definition and practice interpreting “fill material” to include mining overburden disposed into waters was lawful.
3. Whether the district court’s declaratory and injunctive relief was impermissibly broad beyond the permit and record at issue.

## Decision

- The Fourth Circuit reversed the district court’s ruling that the Corps lacked § 404 authority for the valley fills at issue.
- The court held the Corps could treat mining overburden/spoil as “fill material” under the 1977 regulation when the discharge has the physical effect of replacing waters with dry land or changing bottom elevation.
- The court vacated the district court’s broad relief and remanded for further proceedings, instructing that any remedy be properly limited to the case-specific record and permit.

## Legal Principles

- CWA § 404 covers discharges of “dredged or fill material” at specified “disposal sites”; “disposal” is not limited to construction-related placement.
- Under the Corps’ 1977 definition, “fill material” is identified primarily by its physical effect on waters (replacement with dry land or elevation change), and may include mining overburden.
- The boundary between § 402 and § 404 turns on the category of discharged material and permitting scheme, not solely on whether the material is “waste.”
- Where statutory and regulatory terms are ambiguous, courts generally defer to a reasonable, longstanding agency interpretation within the agency’s delegated program.
- Injunctive and declaratory relief must be tailored to the parties, permit, and record before the court, rather than restructuring a permitting program beyond the case.

## Conclusion

The Fourth Circuit held that, under the CWA and the Corps’ pre-2002 regulations, the Corps had authority to authorize mountaintop-mining valley fills under § 404 when the discharged overburden functions as “fill material,” and it vacated and narrowed the district court’s sweeping remedies on remand.


Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003)