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This news story originally provided by The State Journal
7/15/04
Mining Ruling Leaves Questions
Federal Court Criticizes Corps For Its Handling of Fill Permits
CHARLESTON -- Nearly a week after a federal judge ruled that the U.S. Army
Corps of Engineers was violating environmental laws with its streamlined
valley fill permit process, groups affiliated with the case still aren't sure
how to react or what the impact could be.
U.S. District Judge Joseph R. Goodwin ruled July 8 that the current
nationwide permit known as NWP 21 violated the Clean Water Act and said
nationwide permits no longer could be issued for future mountaintop removal
mining projects. His ruling also immediately suspended 11 permits at the heart
of the lawsuit unless work was already under way.
Environmental groups that filed the initial lawsuit lauded Goodwin's ruling,
saying it was a major victory in the fight against mountaintop removal mining.
A spokesman with the U.S. Department of Justice, which represented the
Corps of Engineers in the suit, said he was not sure whether the agency would
file an appeal. Attorneys have 60 days from the date of the decision to file any
challenges.
"Right now we are reviewing the decision, and we have yet to decide what
we want to do," said DOJ spokesman Blaine Rethmeier. "Obviously
this administration believes in coal mining but we are also committed to
complying with the Clean Water Act."
Chris Hamilton of the West Virginia Coal Association said he
does not know yet what kind of financial impact the ruling would have on the 11
permit holders, but said the implications could affect every coal business and
construction company that uses valley fills.
"This decision basically suspends the issuance (in West Virginia only)
of the nationwide permit 21 that has been in use for several decades,"
Hamilton said. "It's a permit the entire nation uses."
Goodwin's decision was clear to say his ruling only pertains to the Southern
District of West Virginia. The limit was stipulated because the Fourth District
Court of Appeals in Richmond, Va., has said previously that rulings cannot
extend beyond the boundaries covered in the initial lawsuit.
That places West Virginia at a competitive disadvantage, Hamilton said.
Without the nationwide blanket permit, Hamilton and others have said coal
companies will have to file individual permits before mining. That slows down
the entire process significantly, he said.
"Some individual permits are in review for four or five years before
they are granted," he said. "It's a very lengthy process, much longer
than the nationwide permit. West Virginia still has to grant water permits and
other permits to coal companies. This decision will cause the permit
coordination to be thrown out of whack."
Environmentalists agreed that the decision will slow down the process, but
they said that is a good thing. The slower permitting process gives groups such
as the Ohio Valley Environmental Coalition and the Coal River Mountain
Watch more time to analyze and challenge the permits. The two environmental
groups were among the plaintiffs in the lawsuit.
"Mountaintop removal is completely out of control. It must be slowed
down and stopped," said Vivian Stockman of OVEC.
Environmental groups oppose valley fills because they say the process buries
streams and creeks with dirt and rock from mining sites. Mountaintop removal
mines, strip mines and deep mines all use valley fills, as do other construction
projects.
Federal laws give the Corps of Engineers control over all of the nation's
waterways. Any plans that would impact or affect water has to have a permit from
the corps first.
For years, the corps used a national permit that approved valley fill plans
based on partial environmental analysis and without public hearings. In his
ruling, Goodwin said that violates the concept of the Clean Water Act.
Goodwin also said the corps failed to properly guarantee that valley fills
will have minimal impact prior to issuing a permit. He said the corps right now
doesn't determine whether there is minimal impact until after the activity has
happened.
Goodwin's 36-page decision harshly criticized the corps and its permitting
process. Several pages were dedicated to pointing out areas where Goodwin
thought the corps failed to monitor valley fills and their environmental impact.
"(The nationwide permit) imposes no limit on the number of linear feet
of a stream, for example, that might be impacted by a valley fill or surface
impoundment," he wrote. "It does not limit the total acreage of a
watershed that might be impacted. The methods that project proponents can
propose to 'mitigate' the effects of their discharge are seemingly infinite.
"The 'category' of activities authorized by (the permit), in other
words, is nothing more than the collection of activities that the corps
determines, during reviews that take place long after the issuance of (the
permit), will have minimal effects. The plain language of the Clean Water Act
prohibits this procedure."
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