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Army Corps of Engineers to reassess coal mining impact on Black Warrior streams

A federal appeals court this week gave the U.S. Army Corps of Engineers one year to go back and reassess the potential harm to streams in the Black Warrior River basin from coal mining after the agency admitted it made a mistake in calculating the impacts.

The U.S. 11th Circuit Court of Appeals on Monday issued an order reversing a federal judge's ruling last May to dismiss a lawsuit filed in 2013 by the Black Warrior Riverkeeper, Defenders of Wildlife, the Southern Environmental Law Center and Public Justice.

The Riverkeeper's lawsuit challenges the Corps granting of permits to coal companies to allow the limitless filling of streams and wetlands at 41 mines in the Black Warrior basin through a general approval, known as Nationwide Permit 21, rather than requiring individual permits based on reviews of each site.

Reviews of each site are now standard for surface coal mining activities, the water advocacy group states. The Corps did not fully account for the cumulative impacts on streams in the region from coal mining, the group contends.

The Riverkeeper appealed to the 11th Circuit last year after U.S. District Court Judge William Acker  dismissed the lawsuit after ruling the Corps had properly analyzed the potential harm to the streams.

In its ruling Monday a majority of the three-member panel of the 11th Circuit Court stated that "literally on the eve of oral argument" before them the Corps admitted it had underestimated the acreage of waters affected by coal mining authorized under Nationwide Permit 21.

The Corps conceded to the 11th Circuit that Judge Acker's ruling must be reversed and to allow it to make a more accurate assessment of the potential impacts of Nationwide Permit 21.

The 11th Circuit sent the case back to Judge Acker and gave the Corps a year to recalculate its findings.

Nelson Brooke, the staff riverkeeper with the Black Warrior Riverkeeper, said they had hoped the 11th Circuit would void the Nationwide Permit 21 process and require the Corps to issue permits based on the analysis of individual sites. By granting the Corps another year to re-examine the issue, it gives the Alabama coal companies another year to fill the streams, he said. 

"This permit allows far too much damage to wetlands and streams along the river and its tributaries," Brooke said.  "The Black Warrior is home to many rare and important aquatic species and is used heavily for swimming, recreation, fishing, paddling, and boating. Protection of clean water and its upland sources are vital to downstream uses."

The Riverkeeper claims more than 27 miles of streams in the Black Warrior River watershed are authorized to be filled as a result of the 41 permits. Courts have barred coal mining companies in other states, including Kentucky and West Virginia, from operating with Nationwide Permit 21 permits under a grandfather rule being used in Alabama, the group has noted.

"We are disappointed that the Court allowed the Corps an entire year to analyze environmental impacts that should have been considered more than five years ago, before this permit was issued," Catherine Wannamaker from the Southern Environmental Law Center stated in a press release issued Tuesday. "Giving the Corps more time to justify a permit that should have never been used in the first place does not serve the public interest.  We feel strongly that all 41 permits should have been put on hold during the Corps' reevaluation, and we are considering next steps at this time."

Coal groups applauded Judge Acker's ruling last year, saying it protected 1,000 coal jobs in Alabama. The coal groups, which had joined in the lawsuit to protect the Nationwide Permit 21 process, called the lawsuit frivolous and a part of what they say is a war by the Obama Administration on the coal industry

source: http://www.al.com