No more rubber stamps allowing mining companies to bury streams
By Jim Hecker, Environmental Enforcement Project Director
The U.S. Army Corps of Engineers’ streamlined procedure for permitting coal mines to fill Appalachian streams with mining waste suffered another blow yesterday when an appeals court threw out the Corps’ 2007 version of Nationwide Permit 21, commonly referred to as NWP 21.
Historically, the Corps relied on NWPs to rubber stamp permits for huge mountaintop removal mines. For example, the Corps issued an NWP for the 5,000-acre Spruce No. 1 mine (pictured) in West Virginia in 1998, even though it proposed to fill ten miles of streams. The Clean Water Act prohibits using NWPs unless the project’s impacts are “minimal,” both individually and cumulatively.
This permit should never have been issued in the first place; it was based on the Corps’ unsupportable assumption that filling these streams has minimal environmental effects.
So Public Justice has been suing the Corps since 2002 to invalidate the NWP. Without it, the only alternative is for the Corps to issue individual permits that require more public and EPA scrutiny, and contain many more protective conditions.
It was a long road to yesterday’s decision. We sued the Corps in West Virginia in 2003, won in 2004, lost on appeal in 2005, and won again on remand in 2009. At that point, the Corps abandoned an appeal. In Kentucky, we filed a similar suit in 2005, and the court sat on it for six years before disagreeing with the West Virginia decision and dismissing the case in 2011. We appealed, and the Sixth Circuit has now agreed with us.
So we now have two decisions invalidating the permit in both states.
While these cases were pending, the regulatory regime changed — partly because of our litigation and partly because of the change in administrations. The Corps decided in 2012 to eliminate use of NWP 21 for any mines with valley fills or that filled more than 300 feet of a stream. At the same time, however, the Corps exempted about 70 existing projects that were already using NWP 21 authorizations granted before 2012. Those grandfathered projects — the last remnants of Nationwide Permit 21’s sorry history — are the projects that are now threatened with extinction by the Sixth Circuit’s decision.