Major victory as Sixth Circuit strikes down Nationwide Permit 21

The U.S. Court of Appeals for the Sixth Circuit today invalidated the 2007 version of the nationwide permit used by the U.S. Army Corps of Engineers to authorize the dumping of coal mining waste into hundreds of miles of Appalachian headwater streams.
Read the entire Court of Appeals decision.
“The Court agreed with us that the Corps failed in 2007 to demonstrate that filling streams with mining waste has minimal cumulative impacts and that the mining companies can mitigate those environmental impacts to insignificance, ” said Jim Hecker, Environmental Enforcement Director at Public Justice in Washington, DC.  “This permit should never have been issued, because it was based on the Corps’ unsupportable assumption that filling these streams has minimal environmental effects.”
Since 2003, coalfield residents and state and national environmental groups have been challenging the legality of Nationwide Permit 21 in West Virginia and Kentucky federal courts.  A West Virginia federal court enjoined the permit’s use in that state in 2009, but a Kentucky court disagreed with that decision in 2011 and allowed its use in that state to continue.  The Sixth Circuit today reversed that Kentucky decision and agreed with the earlier decision by the West Virginia court.
The Clean Water Act only authorizes nationwide permits for stream-filling activities that have minimal environmental effects, both individually and cumulatively.  Mountaintop removal coal mining produces enormous quantities of waste that is commonly disposed of in adjacent valleys and streams. Scientific studies have shown that the waters downstream from valley fills are degraded, and there is no scientific evidence that buried headwater streams can be re-created successfully elsewhere.
The Sixth Circuit found that the Corps’ determination that the 2007 NWP 21 would have cumulatively minimal effects was irrational, for two reasons. First, the Corps failed to analyze the present effects of its past actions allowing the filling of hundreds of miles of streams prior to 2007, and instead improperly limited its analysis to the effects of future filling from 2007 to 2012.  Second, the Corps had no documented information showing that mitigation could offset the loss of headwater streams at mining sites.
The Sixth Circuit stayed its decision for 60 days to give the lower court and the parties time to assess its impact on existing projects.  While the appeal in the Sixth Circuit was pending, the 2007 NWP 21 expired, but the Corps reissued the NWP in 2012 for five more years with more stringent conditions (namely, a 300-foot limit on filling and a prohibition against valley fills).  In reissuing that permit, the Corps created a new loophole that gave about 70 uncompleted projects under the old 2007 NWP 21 five more years to use it without meeting the more stringent conditions of the 2012 NWP 21.  The Sixth Circuit’s decision threatens that loophole.  At a minimum, then, these grandfathered projects will require additional analysis and should have to comply with the more stringent 2012 conditions.
More broadly, the court’s decision raises serious questions about the Corps’ entire approach to cumulative impacts and compensatory mitigation for coal mining projects.  The court directed the Corps to use past mining impacts more carefully to assess cumulative impacts and to document in detail whether mitigation can effectively reduce cumulative impacts.  Up to now, the Corps has refused to take these issues seriously and to measure mitigation effectiveness.  Recent scientific studies on the relationship between the percentage of mining in a watershed and the severity of downstream biological impairment indicate that surface coal mining is having serious cumulative impacts.
The groups that have challenged NWP 21 in court actions are: in Kentucky-Kentuckians for the Commonwealth, Kentucky Waterways Alliance, and Kentucky Riverkeeper; in West Virginia-Ohio Valley Environmental Coalition, Coal River Mountain Watch, and Natural Resources Defense Council.  The legal  team opposing NWP 21 has been led by Jim Hecker at Public Justice in Washington, D.C., assisted by Joe Lovett at Appalachian Mountain Advocates in Lewisburg, WV, and Stephen Sanders at the Appalachian Citizens Law Center in Whitesburg, KY.