UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1049

OHIO RIVER VALLEY ENVIRONMENTAL COALITION, INCORPORATED; 

WEST VIRGINIA HIGHLANDS CONSERVANCY, INCORPORATED,

Plaintiffs − Appellants,

v.

KENNETH SALAZAR, Secretary of the Interior,

Defendant – Appellee,

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; WEST 

VIRGINIA COAL ASSOCIATION,

Intervenors/Defendants – Appellees.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers, 

District Judge. (3:09−cv−00149−RCC)

Argued: December 6, 2011 Decided: January 10, 2012

Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Walton Davis Morris, Jr., MORRIS LAW OFFICE, PC, 

Charlottesville, Virginia, for Appellants. Maggie Baker Smith, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sarah 

Janette Surber, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL 

PROTECTION, Charleston, West Virginia; James Ronald Snyder, 

JACKSON KELLY, PLLC, Charleston, West Virginia, for Appellees. 
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ON BRIEF: Joseph M. Lovett, Derek O. Teaney, APPALACHIAN CENTER 

FOR THE ECONOMY & THE ENVIRONMENT, Lewisburg, West Virginia, for 

Appellants. Ignacia S. Moreno, Assistant Attorney General, 

Kathryn E. Kovacs, Ruth Ann Storey, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C; Steven C. Barcley, UNITED STATES 

DEPARTMENT OF THE INTERIOR, Pittsburgh, Pennsylvania, for 

Federal Appellee. Judith P. Thomas, WEST VIRGINIA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION, Charleston, West Virginia, for 

Appellee West Virginia Department of Environmental Protection. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

This appeal concerns West Virginia’s statutory and 

regulatory program under the Surface Mining Reclamation and 

Control Act of 1977 (“SMCRA” or “the Act”), 30 U.S.C. §§ 1201-

1328. Appellants Ohio River Valley Environmental Coalition, Inc. 

and West Virginia Highlands Conservancy, Inc. (collectively 

“OVEC”) challenge Appellee Kenneth Salazar’s approval, in his 

official capacity as Secretary of the Interior (“Secretary”), of 

two amendments to West Virginia’s surface coal mining 

regulations. 

On cross-motions for summary judgment, the district court 

considered OVEC’s argument that the Secretary’s approval is 

arbitrary and capricious because the amendments violate SMCRA’s 

mandate that “[n]othing in [the Act] shall be construed as 

superseding, amending, modifying, or repealing” the Clean Water 

Act (“CWA”), 33 U.S.C. §§ 1151-75, “the State laws enacted 

pursuant thereto, or other Federal laws relating to the 

preservation of water quality,” 30 U.S.C. § 1292(a)(3). The 

district court denied OVEC’s motion for summary judgment,

granted summary judgment in favor of the Secretary and 

Intervenors-Appellees West Virginia Department of Environmental 

Protection (“WVDEP”) and West Virginia Coal Association (“WVCA”) 

(collectively “Intervenors”), and entered a final judgment in 

favor of the Secretary and Intervenors. We affirm.
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I.

A.

Congress enacted SMCRA in 1977 to strike a balance between 

the nation’s interests in protecting the environment from the 

adverse effects of surface coal mining1 and in assuring the coal

supply essential to the nation’s energy requirements. See 30 

U.S.C. § 1202(a), (d), (f). Congress took a cooperative

federalism approach to the regulation of surface coal mining by

“establish[ing] in SMCRA ‘minimum national standards’ . . . and 

encourag[ing] the States, through an offer of exclusive 

regulatory jurisdiction, to enact their own laws incorporating 

these minimum standards, as well as any more stringent, but not 

inconsistent, standards that they might choose.” Bragg v. West 

Virginia Coal Ass’n, 248 F.3d 275, 288 (4th Cir. 2001) (citing 

H.R. Rep. No. 95-218, at 167 (1977), reprinted in 1977 

U.S.C.C.A.N. 593, at 698; 30 U.S.C. § 1255(b)). 

SMCRA charges the Secretary, acting through the Office of 

Surface Mining Reclamation and Enforcement (“OSM”), with the 

task of reviewing and either approving or disapproving State 

regulatory programs for the control of surface coal mining. 30 

 1 “Surface mining” is defined as “[m]ining in surface 

excavations, including placer mining, mining in open glory-holes 

or mining pits, mining and removing ore from open cuts, and the 

removal of capping or overburden to uncover ore.” 36 C.F.R. 

§ 9.2(f).
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U.S.C. § 1211(c)(1). Approval or disapproval of a State program 

must comply with the procedural and substantive requirements set 

forth in SMCRA and its implementing regulations. See id. § 

1253(b); 30 C.F.R. § 732.15. For instance, the Secretary shall 

not approve a State program unless “the State’s laws and 

regulations are in accordance with the provisions of the Act and 

consistent with the requirements of the Chapter.” 30 C.F.R. 

§ 732.15(a). The terms “consistent with” and “in accordance

with” are further defined as follows:

 (a) With regard to the Act, the State laws and 

regulations are no less stringent than, meet the 

minimum requirements of and include all applicable 

provisions of the Act.

 (b) With regard to the Secretary’s regulations, 

the State laws and regulations are no less effective 

than the Secretary’s regulations in meeting the 

requirements of the Act.

Id. § 730.5. Review of a State program amendment utilizes the 

same criteria applicable to approval or disapproval of a State 

program in the first instance. Id. § 732.17(h)(10). Accordingly, 

the Secretary may not approve amendments to a State program 

unless, at a minimum, the amendments render the State program no 

less stringent than SMCRA and no less effective than the federal 

implementing regulations. 

B.

SMCRA and its implementing regulations protect surface 

waters as well as the entire “prevailing hydrologic balance at 
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the mine-site and in associated off-site areas.” 30 U.S.C. 

§§ 1265(b)(10), 1266(b)(9). “Hydrologic balance” is defined in 

the regulations as:

the relationship between the quality and quantity of

water inflow to, water outflow from, and water storage 

in a hydrologic unit such as a drainage basin, 

aquifer, soil zone, lake, or reservoir. It encompasses 

the dynamic relationships among precipitation, runoff, 

evaporation, and changes in ground and surface water 

storage.

30 C.F.R. § 701.5. In order to protect the portion of the 

hydrologic balance affected by discharges from surface coal 

mining operations, SMCRA’s implementing regulations require 

that:

[d]ischarges of water from areas disturbed by surface 

mining activities shall be made in compliance with all 

applicable State and Federal water quality laws and 

regulations and with the effluent limitations for coal 

mining promulgated by the U.S. Environmental 

Protection Agency set forth in 40 CFR Part 434.

Id. § 816.42. SMCRA further provides that “[n]othing in this Act

shall be construed as superseding, amending, modifying, or 

repealing” the CWA, “the State laws enacted pursuant thereto, or 

other Federal laws relating to preservation of water quality.” 

30 U.S.C. § 1292(a)(3). In other words, SMCRA requires that 

discharges associated with surface mining operations comply with 

the CWA.

In addition to mandating protection of the hydrologic 

balance once surface coal mining begins, SMCRA calls for a 
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detailed analysis of area hydrology prior to commencement of 

such operations, and requires that mining operations be designed 

to ensure hydrologic protection. To this end, the applicable 

regulatory authority (WVDEP in this case) must conduct a 

cumulative hydrologic impact assessment (“CHIA”) of the proposed 

operation and all anticipated mining in the area in conjunction 

with the permitting process. The primary purpose of the CHIA is 

to determine, “for purposes of permit approval, whether the 

proposed operation has been designed to prevent material damage 

to the hydrologic balance outside the permit area.” 30 C.F.R. § 

780.21(g)(1); see also 30 U.S.C. § 1260(b)(3). Although the 

regulatory authority may not approve the permit if the CHIA 

indicates that the proposed operation will cause “material 

damage to the hydrologic balance outside the permit area,” 

neither the Act nor its implementing regulations defines this 

phrase.

C.

The focus of this case is West Virginia’s regulatory 

provision requiring WVDEP to prepare a CHIA in conjunction with 

its review of surface coal mining permits. West Virginia’s first 

proposed amendment repeals its definition of “cumulative impact” 

in the State’s CHIA provision, which previously provided as 

follows: 
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Cumulative impact means the hydrologic impact that 

results from the cumulation of flows from all coal 

mining sites to common channels or aquifers in a 

cumulative impact area. Individual mines within a 

given cumulative impact area may be in full compliance 

with effluent standards and all other regulatory 

requirements, but as a result of the co-mingling of 

their off-site flows, there is a cumulative impact. 

The Act does not prohibit cumulative impacts but does 

emphasize that they be minimized. When the magnitude 

of cumulative impacts exceeds threshold limits or 

ranges as predetermined by the Division, they 

constitute material damage.

J.A. 36; see also W. Va. Code St. R. § 38-2-2.39 (pre-2001). The 

second amendment at issue in this case adds a definition for 

“material damage to the hydrologic balance outside the permit 

area.”2 The CHIA provision, as amended, now provides:

The Director (Secretary) shall perform a separate CHIA 

for the cumulative impact area of each permit 

application. This evaluation shall be sufficient to 

determine whether the proposed operation has been 

designed to prevent material damage to the hydrologic 

balance outside the permit area. Material damage to 

the hydrologic balance outside the permit area means 

any long term or permanent change in the hydrologic 

balance caused by surface mining operation(s) which 

has a significant adverse impact on the capability of 

the affected water resource(s) to support existing 

conditions and uses.

J.A. 36-37; see also W. Va. Code St. R. § 38-2-3.22.e (emphasis 

added).

Notably, we previously had occasion to consider both 

proposed amendments in Ohio River Valley Envtl. Coal., Inc. v. 

 2 As noted above, there is no corresponding federal 

definition for this phrase. 
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Kempthorne, 473 F.3d 94 (4th Cir. 2006). West Virginia initially 

submitted the amendments to OSM on May 2, 2001, 66 Fed. Reg. 

28,682, 28,683 (May 24, 2001), and the Secretary approved them 

on December 1, 2003, 68 Fed. Reg. 67,035, 67,043 (Dec. 1, 2003) 

(codified at 30 C.F.R. pt. 948).3 OVEC challenged OSM’s final 

rule in the United States District Court for the Southern 

District of West Virginia, seeking declaratory and injunctive 

relief on the basis that the Secretary’s approval of the 

amendments violated SMCRA and the Administrative Procedure Act 

(“APA”). Ohio River Valley Envtl. Coal., Inc. v. Norton, No. 

3:04-0084, 2005 WL 2428159 (S.D. W. Va. Sept. 30, 2005); see 

also 30 U.S.C. § 1276(a)(1) (providing that “any action of the 

Secretary to approve or disapprove a State program . . . 

pursuant to [SMCRA] shall be subject to judicial review by the 

United States District Court for the District which includes the 

capital of the State whose program is at issue”). The district 

court vacated and remanded the amendments, finding that the 

Secretary contravened the APA by failing to provide a reasoned 

analysis in support of his conclusion that the amendments render 

the State program no less effective than the federal 

regulations. Norton, 2005 WL 2428159, at *3. We affirmed the 

 3 The Secretary does not personally approve State program 

amendments, but rather acts through the Director of OSM. 

Kempthorne, 473 F.3d at 103.
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judgment of the district court. Kempthorne, 473 F.3d at 104

(holding that “the Secretary’s failure to analyze and explain 

the decision to approve West Virginia’s program amendment 

rendered the decision arbitrary and capricious” under the APA, 

which the district court had properly applied).

Following our decision, West Virginia resubmitted the 

amendments under cover of an explanatory letter discussing, 

inter alia, the State’s position that its SMCRA program would 

remain as effective and as stringent as federal law after the 

deletion of the “cumulative impact” definition and the addition 

of the “material damage” definition. OSM approved the amendments 

a second time on December 24, 2008, noting in its final rule our

admonition that the agency “must examine how each proposed 

change would affect program implementation in order to determine 

that the program will remain no less effective than Federal 

regulations in meeting the requirements of SMCRA.” J.A. 187

(citing Kempthorne, 473 F.3d at 103). OSM reviewed the 

amendments accordingly and concluded that the proposed changes

would not make the State program less effective than the federal 

regulations are at achieving the purposes of SMCRA. OSM noted 

that: 

West Virginia has stated that it intends to implement 

its proposed definition in a manner that provides 

objective criteria for determining whether a proposed 

operation is designed to prevent material damage to 

the hydrologic balance outside the permit area. 
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Further, it has stated that it would do so in a manner 

that gives reasonable meaning to the phrase ‘material’ 

while providing consistent application understandable 

to all parties.

J.A. 191. OSM emphasized that its approval of the new definition 

for “material damage to the hydrologic balance outside the 

permit area” was contingent upon West Virginia implementing the 

definition consistent with its explanatory letter and the intent 

of SMCRA. OSM warned that, “should we later find that this 

definition is not being implemented in a manner consistent with 

the [final rule], OSM may revisit this finding.” Id. OVEC 

subsequently commenced this action for judicial review, again 

challenging the approval as arbitrary and capricious. OVEC 

sought to retain the “cumulative impact” definition, and to have 

the “material damage” definition vacated. The district court 

denied OVEC’s motion for summary judgment and granted the crossmotions filed by the Secretary and Intervenors. Ohio River 

Valley Envtl. Coal., Inc. v. Salazar, No. 3:09-0149, 2011 WL 

11287 (S.D. W. Va. Jan. 3, 2011). OVEC timely appealed. We have 

jurisdiction pursuant to 28 U.S.C. § 1291. 

II.

We review the district court’s grant of summary judgment de 

novo, applying the same standards that the district court was 

required to apply. See Laber v. Harvey, 438 F.3d 404, 415 (4th 
12

Cir. 2006) (en banc). The material facts of this case are not in 

dispute; thus, resolution of the matter on summary judgment is 

appropriate.

Federal administrative agencies are subject to the APA, 

which establishes the scope of judicial review of challenged 

agency actions and instructs a reviewing court to “hold unlawful 

and set aside agency action, findings, and conclusions found to 

be arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 5 U.S.C. § 706(2)(A). SMCRA 

similarly requires a reviewing court to determine whether the 

Secretary’s approval of a State program “is arbitrary, 

capricious, or otherwise inconsistent with law.” 30 U.S.C. § 

1276(a)(1).

Because an agency has expertise in its particular field, a 

presumption of validity attaches to agency actions. Citizens to 

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) 

(overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 

105 (1977)). A reviewing court “must consider whether the 

[agency] decision was based on a consideration of the relevant 

factors and whether there has been a clear error of judgment.” 

Id. at 416. A reviewing court also considers whether the agency 

articulated a “rational connection between the facts found and 

the choice made.” Burlington Truck Lines v. United States, 371 

U.S. 156, 168 (1962). These considerations apply with equal 
13

force where an agency acts in the first instance and where, as 

here, the agency seeks to amend an existing rule. See Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 42 (1983). If the court finds that the agency 

has established the requisite rational connection, the action 

must be upheld even if the court disagrees with the agency's 

decision. See Overton Park, 401 U.S. at 416 (“A court is not 

empowered to substitute its judgment for that of the agency.”). 

As the district court noted, we also consider whether the 

agency followed all required procedures, including, in this 

case, ensuring that the proposed amendments render the State 

program no less stringent than the SMCRA and no less effective 

than the federal regulations. See Salazar, 2011 WL 11287, at *3 

(citing Overton Park, 401 U.S. at 417). Accordingly, we will 

find the Secretary’s approval of the proposed amendments 

unlawful if he demonstrated a “clear error of judgment” in 

approving amendments that fail to satisfy the requirements of 

SMCRA.

Having had the benefit of oral argument and having 

carefully reviewed the briefs, record, and controlling legal 

authorities, we agree with the district court’s analysis. The 

district court properly determined that the Secretary “has 

provided an adequate basis for his approval” and that “West 

Virginia’s material damage definition does not supersede, amend, 
14

modify, or repeal the [CWA].” Salazar, 2011 WL 11287, at *8.

Accordingly, we affirm on the basis of the district court’s well 

reasoned opinion. 

AFFIRMED