Good News in Our Fight To Protect America's Waterways

Army Corps and EPA to follow core legal requirements in MTR mine permitting

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The EPA and Army Corps of Engineers have announced a major step to help prevent the destruction caused by mountaintop removal mining. In a rare joint guidance, the two agencies agreed to improve the process for permitting mountaintop removal mines.

Although it doesn’t solve the problem of mountaintop removal mining, this new direction will make it much harder for coal mining companies to use Appalachian waterways as dumping grounds for their mining waste.

For 30 years, the Corps of Engineers allowed mining companies to completely bury streams with the rubble from their mountaintop mining explosions on the condition that they replace the stream with a manmade stream. In reality, this was a death sentence for healthy streams and entire ecosystems.

Here’s how it happened: mining companies exploded the tops off of hundreds of mountains and dumped the waste into streams, burying more than 2,000 miles of vital Appalachian waterways. They claimed to replace the "structure" of those streams with drainage ditches as their permits required. Trouble is, science tell us that you can’t just dig a ditch and create a living, healthy stream.

Thanks to the study of biology, we have long known that streams are the lifeblood of entire ecosystems — essential for the healthy and lively function of every plant, organism, wild thing, and people. Streams deliver important nutrients and waters to other bodies of water, process bacteria, and give life to ecosystems, and we know that ecosystems are the lifeblood of the human existence.  

Another problem with this destructive practice has been a failure to follow the law. The Clean Water Act for 30 years has required that this life of streams, or "function" in scientific terms, be protected in addition to the "structure" of streams. And for 30 years, the Corps left out this part of the law in its permitting of mountaintop removal mining permits.

For the last five years, Earthjustice has been working in the U.S. courts to get these agencies to begin following the law and the science here. On Friday, with their joint guidance, the EPA and the Corps have resolved to start.

This joint guidance is a milestone in the broader effort to stop the destruction of mountaintop removal mining, but it also represents a victory, outside of the court, for longstanding Earthjustice litigation, which most recently included a petition to the U.S. Supreme Court, asking 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 Friday’s action, we and the groups we’ve been representing in the courts believe the agencies have corrected a core problem that we presented in the Fourth Circuit case and with our Supreme Court petition. As a result, this afternoon (Tuesday, Aug. 2), Earthjustice filed a motion to dismiss its petition to the Supreme Court. By recognizing the need to follow clear law and science on a core step in assessing the impacts of mountaintop removal mining, the agencies have moved beyond the Fourth Circuit decision (and vindicated the strong dissents of certain judges in that court), which will in the future become an historic artifact of a case limited to the unique circumstances presented there.

We’re looking forward to seeing the EPA and the Corps follow through on their new mandate and take into account the very important factor of stream function in all of their permitting decisions. Indeed, many more steps need to be taken in order to stop the wreckage in Appalachia and to protect our waters and the people and wildlife that need them.

We won’t rest until the devastating practice of mountaintop removal mining, and the destruction which is so inherent to it, ends completely.




Liz Judge worked at Earthjustice from 2010–2016. During that time, she worked on mountaintop removal mining, national forests, and clean water issues, and led the media and advocacy communications teams.

Earthjustice’s Washington, D.C., office works at the federal level to prevent air and water pollution, combat climate change, and protect natural areas. We also work with communities in the Mid-Atlantic region and elsewhere to address severe local environmental health problems, including exposures to dangerous air contaminants in toxic hot spots, sewage backups and overflows, chemical disasters, and contamination of drinking water. The D.C. office has been in operation since 1978.