Mountaintop, Flat-top . . . Let's Call the Whole Thing Off

One of the great things about our country is that the government often must give the public the opportunity to comment on something it is planning on doing, and then must actually consider those comments in making its final decision.  One of those opportunities is presently available and it pertains to a critically important issue. 

Mountaintop removal coal mining, which commonly shears off the tops of mountains and dumps the waste in nearby valley streams, is a horrifying industrial practice (as evidenced by the pictures my colleague Rob Perks has posted online).  Coal companies conduct mountaintop removal operations today with the blessing of the Army Corps of Engineers, the federal agency responsible for issuing permits for discharges of "fill material" into the nation's waterways.

Until recently, one mechanism by which the Corps authorized these mines was Nationwide Permit (NWP) 21, a fast-track Clean Water Act permit for "fills" associated with certain coal mining activities.  A nationwide permit is one kind of "general" permit, which gives pre-authorization for particular discharges, and which the law says is only supposed to be used when the environmental impacts are minimal.  In light of this requirement, using a general permit to authorize mountaintop removal valley fills is simply arbitrary.  In March, a federal court said as much, in a case brought by NRDC, Coal River Mountain Watch, and the Ohio Valley Environmental Coalition (thanks to the incredible legal work of Joe Lovett of the Appalachian Center for the Economy and the Environment and Jim Hecker of Public Justice).  As a result, the court struck down the permit.

In the wake of that decision, the Corps is asking for public comment on its plan to suspend and then modify NWP 21 to prohibit its use in Appalachia.  What that would mean is that the streamlined process for getting Corps' permission to bury headwater streams with coal mine waste would be replaced by an individual, or case-by-case, process.  That individual permit process is certainly better - it provides for public input on proposed projects, for instance - but it is nevertheless a mechanism for allowing mountaintop removal to continue.

You can comment on the Corps' proposal by clicking here.  Comments must be submitted by Friday, August 14th, so now is the time to weigh in.  If you can spare the time to comment and are in the market for suggested points to make to the Corps, here are a couple:

  • We need to end mountaintop removal. The Corps must stop permitting waste dumps in Appalachian streams and other water bodies. Doing so means reversing the Bush administration's 2002 "fill rule," which classified a host of solid wastes, including mining wastes, as "fill material" that the Corps could allow to be placed in the nation's waters. The Obama administration should begin the process of undoing this terrible rule right away.
  • In the meantime, the Corps should end the use of NWP 21 altogether. The permit should never have been issued, given the enormity of the impacts and the inability of so-called "mitigation" efforts to reliably ameliorate those harms. It therefore should not be allowed to be used in any fashion; the court ruled that the permit was unlawful, and halting it in Appalachia is only a partial response.