The Corps claimed that, even though coal companies have used this permit to fill hundreds of miles of streams with mining waste, it could mitigate these stream losses to zero by creating new streams elsewhere. Mitigation is the centerpiece of the Corps' claim that the net effect of stream-filling is harmless, but the court found that this claim is an 'unsupported belief' and a 'mere promise' that has no factual or scientific basis. The court's decision was the second time it has invalidated this nationwide permit. The first decision in 2003 was overturned on appeal on a different issue and remanded for reconsideration.
Because of that first ruling, the coal industry has been more frequently using individual permits than the streamlined procedure. Individual permits require much more detailed regulatory analysis. Several of those individual permits were successfully challenged in a different case, which was also overturned on appeal in February 2009. Because of that case, the Corps has over 200 backlogged individual permit applications that would fill over 200 miles of headwater streams.
The U.S. EPA recently signaled in two letters to the Corps that it would be scrutinizing those individual permit applications more closely. The new decision on nationwide permits puts more pressure on the Obama Administration to decide on its position on mountaintop removal. (Source: Public Justice)Ohio Valley Environmental Coalition v. Hurst
The Washington Independent Article On Recent Mining Case Developments