Corps proposes to require individual permits for mountaintop removal mining
Last month, the Obama administration announced an interagency agreement to develop a coordinated policy on mountaintop removal mining. Now the Army Corps of Engineers has taken the first step toward implementing that promise. The Corps has been permitting mountaintop mining through Nationwide Permit 21, a process that provides little opportunity for public input and environmental review. Yesterday it published a proposal to amend NWP 21 to prohibit its use for surface coal mining in Appalachia (in areas where mountaintop removal mining has become common), and to suspend the use of NWP 21 pending that modification. Corps regulations don’t permit immediate suspension; the agency must seek comment and allow an opportunity for interested parties to request a public hearing. Comments will be accepted until August 14. No timeline has been given for processing the comments and issuing a suspension, if that’s what the Corps decides to do. Meanwhile, the Corps says that it will continue processing applications under NWP 21 (except in the Southern District of West Virginia, where the federal court has enjoined the use of NWP 21), and approvals that become effective before any suspension will be grandfathered.
The Corps does promise that it will “carefully review” applications and
exercise discretionary authority to require an individual permit . . . in cases where the proposed surface coal mining activity presents the potential for more than minimal individual and/or cumulative adverse effects on the aquatic environment or other public interest review factors relevant to jurisdictional waters of the United States.
Ken Ward at Coal Tattoo puts this proposal in context. He notes that it seems to be at odds with the government’s decision in June to appeal the ruling in Ohio Valley Environmental Coalition v. Hurst, 604 F. Supp. 2d 860 (S.D. W. Va. 2009), which held that the current version of NWP 21 was unlawfully issued without sufficient environmental analysis. Rob Perks at NRDC welcomes this proposal, but emphasizes the need for an outright ban on mountaintop removal mining.
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About Holly
Holly Doremus is the James H. House and Hiram H. Hurd Professor of Environmental Regulation at UC Berkeley. Doremus brings a strong background in life sciences and a comm…
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At this late date, after so much damage has been done by mountaintop removal coal mining, the Corp’s proposal to amend NWP 21 is laughable. Once again, too little,too late. This agency has a history of negligence in failing to enforce the provisions of the Clean Water Act, particularly with regard to mountaintop removal coal mining. To date, several thousand miles of perennial streams have been filled throughout the Appalachian mountains since this decimation of a major cultural icon of the United States has been allowed to continue. And what of the “remuddling” of the language of the 100′ buffer rule by the federal Division of Surface Mining last year that effectively eliminated minimal protections for watercourses from the stock piling of spoil or overburden (from blasting the tops off the mountains) and the siting of coal sludge storage lagoons within 100′ of a perennial stream? Neither of these agencies has enforced the law in this area; nor have they denied any permits when it was patently clear that violations and serious damage to water quality were imminent if the mining was permitted to occur. And the Corps own rules don’t provide for immediate suspension of NWP 21? Let’s stop wasting time and ban mountaintop coal mining once and for all. Additionally, authority for the permitting and enforcement of all activities potentially effecting water quality should be transferred to the EPA with a mandate to circumspectly review all applications and deny any where a question remains as to the potential impact of the proposed activity upon human health and the environment.