Mountaintop removal mining, the practice known for its alteration of mountain topography in Appalachia, may soon become more difficult to practice. The U.S. Army Corps of Engineers (the agency with power to permit filling of streams and surface waters), the Dept. of Interior, the Environmental Protection Agency, and the West Virginia Dept. of Environmental Protection signed a Memorandum of Understanding on June 11, 2009 that could change the way coal mines in Appalachia have been doing business since 1982.
Nationwide Permit 21 and Coal Mining
The recently signed MOU set in motion a process to reassess, suspend, and prohibit the future use of NWP 21 for the purpose of discharging dredged materials in valleys and hollows, what is known as “valley fill.” According to the West Virginia Coal Association, “valley fills are areas where the rock and dirt from mining excavation is placed.” The fills usually occur in dry stream beds of ephemeral or intermittent streams, which flow only when it rains.
For the past several decades, the Corps’s Nationwide Permit 21 has authorized valley fill discharges from surface coal mining operations that have been approved by the Office of Surface Mining. The Corps has this authority under Section 404 of the Clean Water Act, if they determine that discharges will cause “only minimal adverse environmental effects.”
Section 404(c) of the Clean Water Act also gives the U.S. Environmental Protection Agency “veto authority” to “restrict, prohibit, deny, or withdraw the use of an area as a disposal site for . . . fill material if the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.”
In keeping with EPA Administrator Lisa P. Jackson’s stated priority of improving the nation’s water quality, the EPA is working with the Corps to change the way surface mining fill permits are issued. Their focus is assuring that any permits issued will protect water quality and affected ecosystems.
Proposed Suspension and Modification of NWP 21
During a public comment period announced in the July 15, 2009 Federal Register ( 74 FR 34311) that closed on October 26, 2009, the Corps proposed to modify NWP 21 to “preclude its use to authorize the discharge of fill material into streams for surface coal mining activities in the Appalachian region.” Prior to a final decision on modification, NWP 21 would be suspended.
The effect of this decision is likely to be that most new mountaintop mining proposals will be processed as individual permits. Issuance of individual permits requires public review, compliance with the National Environmental Policy Act (NEPA) — which means weighing alternative courses of action — and mitigation of aquatic impacts.
As controversy surrounding the practice of mountaintop removal mining has increased, federal agencies under the Obama administration have responded by reassessing the use of Nationwide Permit 21 for the disposal of mountaintop fill materials into valleys and streams of Appalachia. A final decision on whether to suspend and modify NWP 21 to prohibit its use for valley fill is pending.
Sources:
Environmental Protection Agency
U.S. Army Corps of Engineers
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