In an important case, the Fourth Circuit Court of Appeals reversed (by a 2 to 1 vote) a lower district court decision that enjoined Army Corps of Engineers 404(b) permits that allowed mining companies in West Virginia to fill in mountain valleys and streams with mining rubble, to use stream segments to drain water from that rubble to sedimentation ponds, and to build the ponds on top of previously existing streams. Ohio Valley Environmental Coalition v. Aracoma Coal Company.
The circuit court essentially deferred to the existing Corps process in determing that the measures taken by the coal companies to mitigate an impact on water of the United States was adequate. Central to this analysis was an interpretation of a fairly obscure provision in section 230.11(e) that allows the mining company to claim that stream structure (i.e., a natural watercourse vs. a drain line and sedimentation pond) can be measured as a surrogate for function. The court relied on memorandums and policy declarations to support its interpretation of the statute.
The case does not address the real issue at work: whether blasting away mountains and valleys is worth a cheaper coal price for power plants. In fact, the coal miners would likely say that they have a right to purchase a mountain and destroy it if that is what they want to do whether they extract coal or not. The Clean Water Act is a poor mechanism for trying to address the larger issue of whether there is a public interest in preserving natural habitat. As long as the Corps is inclined to allow drainlines and sedimentation ponds to stand in for natural stream habitat, there is little that the public can do to stop mountaintop removal short of new statutes regulating those mitigation structures or a legislative decision to ban mountaintop destruction altogether.