NWP 21 KWA Case Statement – final

Kentucky Waterways Alliance
Action to End Valley Fills Under Corps of Engineers Nationwide Permit 21
Case Statement
Kentucky Waterways Alliance is joining as a plaintiff in federal lawsuit to block general permits
under a US Army Corps of Engineers program, “Nationwide Permit 21 (NWP 21),” for mining
operations with valley fills. The Kentucky Riverkeeper, Inc. and Kentuckians for the
Commonwealth are also plaintiffs. The plaintiffs are represented by Appalachian Center for the
Economy and the Environment; the Appalachian Citizens Law Center; Trial Lawyers for Public
Justice; and Joe Childers, Esq.
The Extent of the Problem
Removing the tops of mountain ridges then filling adjacent hollows and valleys with waste rock is
an increasingly common coal-mining technique in the coalfields of southeastern Kentucky. Fiftyfour operations that will bury over 35 miles of streams under 191 valley fills have been approved
for general permits since December 2002, according to the legal research for the case. The 54
operations are located on the attached map.
Valley-fills bury streams with sediment and rock. This “fill” smothers aquatic life, and filling
headwater streams with sediment can have significant cumulative affects on aquatic habitat
downstream. Therefore, sediment and rock are considered pollutants requiring a discharge permit
under the Clean Water Act.
Sediment can also ultimately affect navigation of rivers. The Corps of Engineers has jurisdiction
for operations that place “fill” in streams, and has two permitting processes:
 The “individual” permit process governed by Section 404(a) of the Clean Water Act, which
considers effects on the stream and watershed and provides an opportunity for public
comment; and
 The “general” (NWP 21) permit process governed by Section 404(e), which is issued
without consideration of site-specific environmental impacts and without public notice or
the opportunity for comment.
The 54 permits at issue are under the Corps’ NWP 21 “general permit” process.
KWA has three water-related concerns about permits for valley fills under NWP 21:
General permits should not be used when site-specific impacts are major. For example,
three of the general permits issued since 2002 are for 5942, 4355, and 2300 feet of perennial
streams, respectively.
The cumulative effect from multiple general permits in the same watershed will not be
Individuals living in the watershed do not have an opportunity to review or comment on the
There are also legal concerns about NWP 21. Under the Clean Water Act, nationwide permits can
only be issued when “activities in such category are similar in nature, will cause only minimal
adverse environmental effects when performed separately, and will have only minimal cumulative
adverse effect on the environment. . . .” 33 U.S.C. § 1344(e).
In a similar suit in a different jurisdiction, the Corps of Engineers was enjoined from issuing permits
under NWP 21 for valley-fills in West Virginia. That decision is under appeal, however several
valley-fills that had been approved have been enjoined from starting until the appeal is decided.
The West Virginia decision, however, does not apply to Kentucky valley-fills, and hence the lawsuit
in Kentucky.
How KWA Is Concerned
The mission of KWA is “To protect and restore Kentucky’s waterways and their watersheds by
building effective alliances for their stewardship.” KWA represents a significant alliance of people
concerned about water quality in southeastern Kentucky—individual and organizational members
as well as partner groups—for whom the threat to Kentucky waterways from NWP 21 valley-fills is
significant and growing.
KWA’s Strategic Plan includes the objective, “Promote and influence beneficial public policy
decisions about natural resources.” Neither the affected coal companies nor the Corps of Engineers
is willing to change the process that currently permits valley-fills under this Nationwide Permit.
There is no alternative to achieving responsible decisions on valley-fills except through litigation. If
successful, the lawsuit will force the Corps to issue any permits for valley-fills under the
“individual” permit process governed by Section 404(a).
For More Information:
KWA: Judith Petersen, (270) 524-1774, director@KWAlliance.org
KFTC: Kevin Pence, (859) 626-3802, kpentz131@earthlink.net
KRI: Alan Banks, (606) 622-1622, alan.banks@eku.edu