West Virginia Highlands Voice

Mountaintop Removal Operations to Get More Scrutiny

The United States Army Corps of Engineers decided June 17, 2010, to suspend Nationwide Permit 21 in six Appalachian states. In its press release announcing the suspension, the Corps said:

The U.S. Army Corps of Engineers announced today it has suspended the use of Nationwide Permit 21 (NWP 21) in the Appalachian region of six states. NWP 21 is used to authorize discharges of dredged or fill material into waters of the United States for surface coal mining activities. The suspension is effective immediately and applies to the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia. NWP 21 continues to be available in other regions of the country.

The suspension in Appalachia will remain in effect until the Corps takes further action on NWP 21 or until NWP 21 expires on March 18, 2012. While the suspension is in effect, individuals who propose surface coal mining projects that involve discharges of dredged or fill material into waters of the United States will have to obtain Department of the Army authorization under the Clean Water Act, through the Individual Permit process.

The individual permit evaluation procedure provides increased public involvement in the permit evaluation process, including an opportunity for public comment on individual projects.

The Corps determined after a thorough review and consideration of comments that continuing use of NWP 21 in this region may result in more than minimal impacts to aquatic resources. Activities that result in more than minimal impacts to the aquatic environment must be evaluated in accordance with individual permit procedures. Therefore, NWP 21 has been suspended in this region and coal mining activities impacting waters of the U.S. in this region will be evaluated in accordance with individual permit procedures.”

This is the decision that was the subject of the October 13, 2009, hearing that turned into a pro-coal rally, a chance to bully anybody who disagreed with the pro-coal forces, a near riot, etc.(See The Highlands Voice, November, 2009). At that and other hearings in six states, about 6,000 people attended (including a substantial number of WVHC members) and about 400O gave oral testimony (including WVHC members).

The mob atmosphere that existed at the October 13 hearing prevented there being any real discussion of the proposal. Fortunately, there were other opportunities for commenting on the proposed change. The West Virginia Highlands Conservancy, as well as several other groups (Ohio Valley Environmental Council, Coal River Mountain Watch, Kentucky Riverkeeper, Kentucky Waterways Alliance, Kentuckians for the Commonwealth, Southern Appalachian Mountain Stewards, the Strip Mining Committee of Save Our Cumberland Mountains, Sierra Club, National Wildlife Federation, and Natural Resources Defense Council) made written comments upon the proposal

Overall, the Corps received approximately 23,000 comments. The 1,750 comments The Corps considered “substantive” were about evenly split for and against the modification and suspension.

Nationwide Permit 21 is what is known as a “general permit.” General permits are designed for activities that produce minimal environmental impact. They allow such activities to go forward with less scrutiny than there would be for activities that produce a more substantial impact.

Nationwide Permit 21 was issued in 1982 to allow dredged or fill material to be discharged into the waters of the United States from all surface mines without the scrutiny that would come if projects were examined individually.

Since 1997, the minimal scrutiny approach authorized by Nationwide Permit 21 has been used 1,473 times nationwide. Approximately 1,204 havae been in the six states covered by the suspension.

The world has changed since 1982. Here is how the Corps of Engineers explained it:

Since NWP 21 was first issued in 1982, surface coal mining practices have changed, and surface coal mining activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia have become more prevalent and have resulted in greater environmental impacts. Mountaintop surface coal mining activities increased because many of the remaining coal seams in the Appalachian region were less accessible to nonsurface coal mining techniques. Since the late 1990s, there have been increases in concerns regarding the individual and cumulative adverse effects of those activities on the human environment and the natural resources in this region, including streams and other aquatic resources.

In light of this new reality, the Corps of Engineers has suspended NPW 21. This would mean that mining projects which discharge dredged and fill material into the waters of the United States could do so only after more exacting scrutiny of review of individual projects.

Activities that were authorized by NWP 21 will be allowed to continue unless the district engineer of the Corps of Engineers takes action in a particular case. They may not be modified to allow additional filling of streams.

It has, of course, been the position of the West Virginia Highlands Conservancy for many years that NWP 21 was bad policy and probably illegal as well.