                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.




                                2
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.

                                                3
                                           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 mining 1 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).


                                              4
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

                                                5
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



                                               6
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:



                                               7
     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.


                                  8
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.


                                                  9
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.

                                                  10
       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 cross-

motions    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


                                              11
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

                                            12
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,

                                             13
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




                               14
