The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers last week made a joint announcement that they will begin following a longstanding requirement of the Clean Water Act designed to protect streams. Their joint guidance is expected to 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 Friday, 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.
Earthjustice’s mountaintop removal minding litigation 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 Friday’s action, Earthjustic said itt believes the federa; agencies have corrected the problem that was presented in the Fourth Circuit case and the Supreme Court petition.
Earthjustice attorney Steve Roady said, “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."
The full memorandum is available at the link below.