On June 17, 2010, the US Army Corps of Engineers (“the Corps”) suspended the nationwide permit (NWP) 21 in Appalachia, ending years of rubberstamping the practice of filling headwater streams with coal mine waste without consideration for the individual and cumulative impacts to the environment. This announcement is good news to those in Central Appalachia who have worked a long time to end the use of NWP 21 permits. In 2005, ACLC, along with Public Justice and the Appalachian Center for the Economy and the Environment, sued the Army Corps of Engineers on behalf of Kentucky Riverkeepers, Kentuckians for the Commonwealth, and the Kentucky Waterways Alliance over its issuance of NWP 21. The case remained pending in the U.S. District Court in the Eastern District of Kentucky for nearly five years. The judge never ruled on the merits of our claim that NWP 21 did not meet the requirements of the Clean Water Act.
The Army Corps of Engineers is a federal agency with the authority, under Section 404 of the Clean Water Act, to issue permits for the discharge of dredged or fill material into the nation’s waters. The Corps has the authority to issue permits to mine operations to fill Appalachian headwater streams with waste. However, the Corps cannot issue such a permit if it would cause or contribute to a significant degradation of the water.
Since 1982, the Corps has used the NWP 21 to allow mines to bypass the standard permitting process under the Clean Water Act, which requires individualized review of each permit application and public participation in the decision whether to issue a permit. Once the NWP 21 was issued, all that a mining operation had to do was submit a preconstruction notification and mitigation plan to the Corps for approval. If the Corps approved the plan, the mining operation would automatically be covered under the NWP 21 permit. This practice allowed large-scale surface mines engaged in mountain-top removal mining to place huge amount of rock and earth in streams, causing the annihilation of many miles of headwater streams and the downstream pollution of many more.
The Corps’ decision will not end the practice of allowing large-scale surface mines to bury headwater streams with mine waste, but it will bring the process for permitting these fills into public scrutiny. Without NWP 21, each fill permit for large-scale surface mines will require an individualized assessment of the project, a determination of whether the impacts are significant enough to require a full Environmental Impact Statement (“EIS”), and engagement of the public through notice and comment proceedings. In addition, the Corps will be required to issue a record of decision explaining why it chose to approve or deny each project.