Today in an important new directive, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers announced jointly that they will begin following a longstanding requirement of the Clean Water Act designed to protect streams. Their joint guidance will bring robust scientific analysis into the process of permitting mountaintop removal mining projects.
For 30 years, the Clean Water Act has required that the Corps assess a proposed mine’s impact on both the structure and the function of affected streams — meaning not just the physical characteristics or how a stream looks, but also the biological processes of a stream ecosystem and how it works. But in practice, the Clean Water Act's requirement to assess stream function has been ignored.
As of today, the EPA and the Corps will consider the impact that mountaintop removal mining waste will have on the ecosystem functions, in addition to the structure, of streams before permitting mining companies to dump waste into these waterways. The agencies’ new joint guidance is an important recognition that both of these scientific assessments are required by the Clean Water Act.
Until now, mining companies have been allowed to completely bury streams with their mining waste and then dig drainage ditches to replace them, even though those ditches could not make up for the loss of a functioning, natural stream. Today’s joint guidance makes clear that from now on, the agencies will evaluate the impacts of burying streams on stream functions when deciding whether to issue mountaintop removal mining permits.
For the last five years, the public interest law firm Earthjustice has been working in the courts on behalf of three West Virginia community environmental groups to urge the EPA and the Corps to adhere to the science and the Clean Water Act, including this requirement to assess stream functions. Earthjustice, along with its co-counsel Appalachian Center for the Economy and the Environment and Public Justice, represented Appalachian groups Coal River Mountain Watch, Ohio Valley Environmental Coalition, and West Virginia Highlands Conservancy in the case.
Earthjustice’s litigation on behalf of these groups most recently led to a petition to the U.S. Supreme Court, which asked the Court to review a closely divided decision by the U.S. Court of Appeals for the Fourth Circuit in a controversial mountaintop removal mining case. With today’s action, these groups believe the agencies have corrected the problem that was presented in the Fourth Circuit case and the Supreme Court petition.
The following statement is from Earthjustice attorney Steve Roady:
“Decades of mountaintop removal mining have taken a serious toll on Appalachia. We’re pleased the EPA and the Corps have committed to work together to follow Clean Water Act requirements that have been on the books for decades, and to take the health of Appalachian communities and their environment seriously.
“For 30 years, mining companies have been completely burying streams with their waste. Their permits have allowed them to do so as long as they dig some drainage ditches and call them 'streams.' This is a travesty. A ditch does not equal a healthy, functioning stream. This destruction kills wildlife, contaminates water supplies, and harms the health of whole communities.
“Following valid science and meeting legal duties under the law is what we should expect of our government, and so it is a sign of progress to see this unified action today by the EPA and Army Corps of Engineers.
“We’re looking forward to watching these two agencies, which have a duty to prevent significant degradation to Appalachian waterways, fulfill their commitment. We applaud the Corps and EPA for recognizing what the law and science require: the protection of streams and communities. We will continue to urge these agencies to take meaningful action to guarantee that our streams are no longer the dumping grounds for mining waste.”