FEDERAL - MINING

摘要

A federal appellate court has reinstated the Axmy Corps of Engineers' (the Corps) streamlined permit process for mountain-top-removal coal mines in West Virginia. In Ohio Valley Environmental Coalition v. Bulen, 429 F. 3d 493 (4th Cir. 2005), the U.S. Court of Appeals for the Fourth Circuit overruled a district court decision that had invalidated NWP 21, a nationwide permit issued by the Corps allowing the discharge of fill material associated with surface coal mining activities. NWP 21 was issued under section 404(e) of the Clean Water Act (CWA), which permits the Corps to issue general, nationwide permits for classes of activities determined to have only "minimal adverse environmental effects." 33 U.S.C. para 1344(e)(l). Typically, once a category of activities receives a "nationwide permit," or "NWP," individual dischargers need not seek further approval from the Corps. Thus, an NWP provides a more streamlined permitting process than applies to individual permits issued under section 404(a) of the Act, which requires a notice and comment public process. 33 U.S.C. para 1344(e)(2). Unlike other nationwide permits, however, NWP 21 requires mining companies to submit a mitigation plan to the Corps for each fill project, and receive written authorization from the Corps before depositing any fill material from their mountaintop mining activities.