Mountaintop Mining and U.S. EPA's Proposed Rule Change: A Giant Step Backward for the Clean Water Act

Daniel L. Rosenberg

Daniel L. Rosenberg is an attorney with the Natural Resources Defense Council's Clean Water Project in Washington, D.C.

Imagine that new neighbors move in next door and begin building an addition on their home that blocks the sun, crowds your property, and obstructs you view of the park down the street. Unpleasant? Now imagine that the rights to mine the property next door—more than 8,000 acres (approximately 12 square miles)—is bought by the Arch Coal Company and that your new neighbor will soon be blasting off the tops of the surrounding mountains, cutting trees, burying the nearby streams with rubble, and killing all the wildlife in the process. Many of your neighbors might quickly move away, particularly if offered some financial compensation by the coal company. Soon, the local stores would not have enough business to stay open, and your little town might not have enough revenue to support basic social services, or enough children to keep the local school open. An ever-descending spiral of flight and deterioration would soon be established. But if you and your family wanted to fight to save your home, your community, and the surrounding streams, trees, and wildlife, you might take your new neighbor to court.

Ten West Virginia citizens did just that two years ago. They joined with the West Virginia Highlands Conservancy, a local environmental group, to file a legal complaint in U.S. District Court for the Southern District of West Virginia. The complaint, brought against the West Virginia Division of Environmental Protection (DEP) and the U.S. Army Corps of Engineers, alleged multiple violations of the Clean Water Act (CWA)¹ and the Surface Mining Control and Reclamation Act (SMCRA)² for failure to prevent or enforce violations caused by a mining practice known as "mountaintop removal." Thus far, they have won nearly every round of their battle.

Over the last two years, the case, Bragg v. Robertson,³ has drawn national and international attention to the practice of mountaintop removal and the destruction of waters caused by this extreme form of coal mining. The case has received extensive coverage from both broadcast and print journalists—including features on 60 Minutes and Nightline, reports on CNN, National Public Radio, BBC television, and the Australian Broadcasting Corporation, and stories in the New York Times, Washington Post, Los Angeles Times, USA Today, U.S. News and World Report, and dozens of other newspapers and magazines.

Although it began with a citizen suit, all three branches of government have become deeply involved in the case. The U.S. Congress inserted itself into the dispute, with the Senate debating and voting on a rider to an appropriations bill that would have overturned a decision of the district court judge. The Clinton Administration has grappled with the mountaintop removal issue as a defendant in the lawsuit, as a political actor in the congressional dispute over the rider, and, recently, as the regulatory authority proposing to change the rules of the CWA regarding the definition of "fill" in order to allow the practice to continue.

Ultimately, the regulatory changes proposed by the Clinton Administration may have the most long-lasting and detrimental effect on the CWA and the ability of citizens to use the act to protect our nation's waters.

What Is Mountaintop Removal?

Mountaintop removal is a practice used in the strip mining of coal throughout the Appalachian region. In mountaintop removal operations, mine operators use explosives and enormous machines to rip hundreds of feet off the top of mountains to expose and remove the coal seams that lay underneath. Upon completion of the coal removal, some of the wasterock is placed back on the top of the mountain. However, because the compacted dirt and rock expands when blown apart, not all the waste rock and dirt will fit back on the mountain. The current solution for disposing of waste rock and dirt is to dump it into nearby valleys. Typically, the networks of streams and wetlands in the valleys are filled with the excess mining waste. As a result of the valley fills, these streams and the aquatic and wildlife habitat they support are destroyed—buried by hundreds of millions of tons of rocks and dirt.

It is nearly impossible to overstate the destructive effects of mountaintop removal on the surrounding environment. The practice is destroying irreplaceable forests and streams. [30 ELR 11176] In September 1998, the U.S. Fish and Wildlife Service (FWS) estimated that nearly 500 miles of streams had been lost in only 6 West Virginia watersheds since 1986 due to mountaintop removal valley fills.⁴ This estimate did not include five other major coal mining counties in West Virginia. Indeed, the DEP has estimated that over 1,000 miles of the states' streams have been eliminated by coal mining fills and their attendant sedimentation control structures. Kentucky, Pennsylvania, and Virginia are also home to extensive mountaintop removal mining operations.

West Virginia's forests are among the most productive and diverse in the world. According to the FWS, the forests are hot spots for migratory birds.⁵ The geographic scope and environmental impact of proposed mountaintop removal operations has dramatically expanded. Mining complexes often create holes of more than 10 square miles in the forest canopy. For instance, Arch's mountaintop removal complex in Blair, West Virginia, would have destroyed more than 12 square miles of forests and streams. Such holes in the forest canopy have significant adverse impacts on bird migration. Large-scale deforestation, such as that associated with mountaintop removal, has been shown to have significant effects on global climate change.

In addition, mountaintop removal cracks the walls and foundations of nearby homes, causes dust, noise and vibration from blasting, collapses drinking water wells, destroys the ability of residents and visitors to use nearby streams for fishing, hiking, swimming or aesthetic peace of mind, and has destroyed the communities in which the mines are located.

The practice of mountaintop removal was used sparingly throughout the 1980s. During that decade, West Virginia issued 44 permits for mountaintop removal mines that covered a total of 9,800 acres. Between 1991 and 1998, however, the state received applications covering more than 40,000 acres of mined and reclaimed land, with more than 2 billion tons of mining waste to be dumped in more than 200 valley fills. Currently pending are more than 100 permit applications that would destroy more than 35,000 acres, or 50 square miles, in West Virginia alone.

Controlling Legal Authority

Section 404 of the CWA⁶ authorizes the Corps to issue permits for the discharge of dredged or fill material into waters of the United States at specified disposal sites through individual or general (nationwide) permits (NWPs). The Corps has authorized mountaintop removal permits primarily under NWPs 21 and 26. The U.S. Environmental Protection Agency (EPA) has the authority under § 404 to deny or restrict the use of any area as a disposal site for dredged and fill material if the discharge of the material will have an unacceptable adverse impact on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. Further, all § 404 permits must receive water quality certification by the state. No federal activity may be certified if it will destroy aquatic life or use any waters of the state primarily for waste disposal.⁷

Up until the time that the West Virginia citizens filed their lawsuit challenging the practice of mountaintop removal, including the associated valley fills, the Corps had routinely been issuing permits for valley fills, relying on its authority under § 404. Indeed, the Corps not only issued hundreds of permits, it did so largely under its authority to issue general permits for categories of activities found to have "minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment."⁸ Every valley fill in West Virginia has been approved pursuant to an NWP, rather than an individual permit.

Among their legal claims, the citizens in the Bragg litigation raised the issue of whether the Corps has the authority under § 404 to issue permits for valley fills. In the course of the litigation, plaintiffs deposed several Corps employees, including Richard Buckley, chief of the Corps' permitting section in its Huntington, West Virginia, district office; Rodney Woods, the regulatory program manager for the Corps' Cincinnati, Ohio, division office; and John Studt, chief of the Corps' Regulatory Branch in its Washington, D.C. headquarters. Each of these Corps employees, representing the chain of decisionmakers responsible for permitting running from Huntington, West Virginia, up to Washington, D.C., admitted in depositions that the Corps did not have the legal authority to issue permits for valley fills, because those fills consisted of "waste," which does not meet the definition of "fill" for which the Corps has permitting jurisdiction.⁹

Mr. Buckley stated his personal opinion that "valley fills are not discharges of fill material" and that such fills should therefore not be regulated by his office. Mr. Woods' interpretation of the law was that the current definition of fill excludes waste, and that NWP 21 does not contemplate discharges of waste material. He noted that he thought that his district never intended to regulate these fills, but that they "just sort of oozed into that." Finally, Mr. Studt stressed that if material were to be "deposited simply as a waste material, we would view it as not regulated under the prime purpose test." He went on to conclude that valley fill, in his opinion, was indeed such a waste.

The citizen plaintiffs in the Bragg case alleged 13 separate claims against the DEP and the Corps. Ten of the claims dealt with the state's repeated issuance of permits for mountaintop removal mines—and their valley fills—that did not comply with the requirements of the CWA and SMCRA. The pivotal claim under SMCRA was the plaintiffs' allegation that the state DEP was failing to enforce the act's buffer zone rule, which protects intermittent and perennial streams from disturbance by coal mining activities. In addition, the citizens asserted three claims against the Corps: failure to conduct an environmental impact study on the impacts of issuing multiple § 404 permits to pursue mining operations with valley fills; granting permits to applicants that allow disposal of waste in waters of the United States; and granting permits for filling wetlands and waters that have greater [30 ELR 11177] than minimal adverse effects, individually and cumulatively, in violation of § 404.¹⁰

The plaintiffs settled some of their claims when the Corps and EPA agreed to complete a full programmatic environmental impact statement (EIS) of the effects of mountaintop removal in the state of West Virginia.¹¹ In addition, the defendants agreed to limit the size of all valley fills permitted under NWP 21 to no more than 250 acres (previously some had been as large as 1,500-2,000 acres).¹² As a result of this settlement, no large mountaintop removal mine has been permitted in West Virginia in two years.

The parties could not agree on a limit of 250 acres for Arch's Spruce Fork Mine, however, and the sides litigated further over the permitting for that single mine. After a two-week trial on the issue,¹³ the district court enjoined the Corps from issuing the proposed general § 404 permit.¹⁴ In his order, Judge Charles Haden, chief judge of the District Court for the Southern District of West Virginia, described the view of mountaintop removal sites as seen from the air, and assessed the potential damage posed by the mine:

The Court's helicopter flyover of all mountaintop removal sites in southern West Virginia revealed the extent and permanence of environmental degradation this type of mining produces. On February 26, the ground was covered with light snow, and mined sites were visible from miles away. The sites stood out among the natural wooded ridges as huge white plateaus, and the valley fills appeared as massive, artificially landscaped stair steps. Some mine sites were twenty years old, yet tree growth was stunted or non-existent. Compared to the thick hardwoods of surrounding undisturbed hills, the mine sites appeared stark and barren and enormously different from the original topography.

If the forest canopy of Pigeonroost Hollow is leveled, exposing the stream to extreme temperatures, and aquatic life is destroyed, these harms cannot be undone. If the forest wildlife are driven away by the blasting, the noise, and the lack of safe nesting and eating areas, they cannot be coaxed back. If the mountaintop is removed, even [the mine company's] engineers will affirm that it cannot be reclaimed to its exact original contour. Destruction of the unique topography of southern West Virginia, and of Pigeonroost Hollow in particular, cannot be regarded as anything but permanent and irreversible.¹⁵

Later, the Corps, which had originally authorized the mine under an NWP, reversed its position and informed the company that it would have to apply for an individual permit, rather than the less rigorous general permit. Arch's individual permit application is still pending.

For most of the remaining issues, a settlement was reached and incorporated into a federal court consent decree.¹⁶ The consent decree dealt with additional requirements to protect streams and strict new reclamation requirements that will help to restore the native forests after mining and assure that the mined sites are restored to their approximate original contours.¹⁷

The Question of Buffers and Fills

The outstanding claims of the case addressed the state's compliance with the requirements of the buffer zone rule under SMCRA, and the ability of the Corps to regulate the discharge of waste as fill material.

In an opinion devastating for mountaintop removal as currently practiced, federal district Judge Haden, in October 1999, ruled that surface mining activities could not disturb land within 100 feet of the entire length of an intermittent or perennial stream.¹⁸ Defendants had argued that the area where mining waste was dumped, known as the "footprint," did not constitute part of the stream.¹⁹ Since the portions of the stream below the footprint, i.e., not buried, were not harmed, defendants argued that the buffer zone rule was not being violated.²⁰ The court rejected this reasoning, stating that the defendants' interpretation "leads to the reductio ad absurdum that miles of streams could be filled and deeply covered with rock and dirt, but if some stretch of water downstream of the fill remains undiminished and unsullied, the stream has been protected. The regulations provide otherwise."²¹

Regarding the issue of "fill," the defendants had argued that, because § 404 specifically permits fills into waters of the United States, it authorized valley fills for disposing of excess spoil.²² For support, defendants referred the court to an August 1999 memorandum of understanding (MOU)²³ between the DEP, EPA, the Corps, and the U.S. Department of the Interior's (DOI's) Office of Surface Mining—the branch responsible for implementing and enforcing SMCRA. The MOU codified the agencies' long-standing practice of issuing § 404 permits for valley fills by legitimizing the practice of substituting the criteria for authorizing fills for the criteria authorizing a waiver of the buffer zone rule.²⁴ The agencies suggested that the two sets of requirements were "functionally equivalent."²⁵

The court, however, dissected and dismantled the theory of functional equivalence.²⁶ The court examined the Corps' definition of "fill material" for which permits could be issued.²⁷ The agency presently defines fill material as "any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of an [sic] waterbody" excluding "pollutants discharged into the water primarily to dispose of waste."²⁸ These are known as the "primary purpose" test and the "waste exclusion" criterion.

[30 ELR 11178]

The court found that

overburden or excess spoil, being a pollutant and waste material, is not "fill material" subject to Corps authority under [§] 404 of the CWA when it is discharged into waters of the United States for the primary purpose of waste disposal. The Corps' § 404 authority to permit fills in the waters of the United States does not include authority to permit valley fills for coal mining waste disposal. Fills with the primary purpose of waste disposal are regulated by the EPA under CWA § 402.²⁹

Thus the court found that the 1999 MOU erroneously authorized fills for waste disposal.

Regarding the "functional equivalence" of the fill regulation and the buffer zone rule, the court concluded that the two regulations were dissimilar.³⁰ The court concluded that, in fact, the two regulations were dissimilar both in the amount of degradation allowed, as well as the scope of protection provided.

The two regulations differ in both the degree of degradation allowed (significant under [§] 404 and will not adversely affect under SMCRA regulations) and in the types of degradation considered. While [§] 404 limits its analysis to aquatic impacts, SMCRA allows an evaluation of other environmental resources of the stream, in addition to water quantity and quality issues.³¹

The differences in the two regulations cited by the court had also been the basis for the FWS decision not to sign the August 1999 MOU.³²

Finding that the proposed substitution of the § 404(b)(1) guidelines for the buffer zone rule requirements was improper, the court held that the defendants had repeatedly violated the buffer zone rule³³ and must satisfy each of its criteria before exempting valley fills that would affect lands within 100 feet of any intermittent or perennial streams.³⁴

The court next examined whether the DEP could exempt applicants for valley fills. Before allowing fills that constitute incursions on the 100-foot buffer zone, the DEP must find that the proposed mining activities meet 6 criteria: (1) not adversely affect the normal flow or (2) gradient of the stream, (3) not adversely affect fish migration or (4) related environmental values, (5) not materially damage the water quantity or (6) quality of the stream, as well as not violate state or federal water quality standards.³⁵ The court determined:

When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments. The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration. Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream, there is no water quality. The [DEP] lawfully cannot make required findings (1) through (6) for buffer zone variances for valley fills. In the stream portion filled, these requirements cannot provide a principled rationale for allowing valley fills.³⁶

On the issue of whether a valley fill would violate state or federal water quality standards, the court held that "placement of valley fills in intermittent and perennial streams violates federal and state water quality standards by eliminating the buried stream segments for the primary purpose of waste assimilation."³⁷

The court concluded by granting the citizens' motion for a permanent injunction barring the DEP from "approving any further surface mining permits under current law that would authorize placement of excess spoil in intermittent and perennial streams for the primary purpose of waste disposal."³⁸

Backlash

The reaction to the ruling from West Virginia Governor Cecil Underwood, a former coal company executive, was swift and dramatic. Although the court had only barred issuance of any new permits for applications that were currently pending, the governor took the inflammatory and unnecessary step of shutting down all ongoing mountaintop removal operations in the state. The governor further declared that, based on the anticipated loss of a significant portion of the state's revenue due to the court's ruling, West Virginia would undertake an immediate hiring freeze.

In Washington, the West Virginia congressional delegation, led by senior Sen. Robert Byrd (D-W.Va.) reacted to the ruling by working to add a rider—a legislative provision attached to a funding authorization bill—to four appropriations bills that needed to be passed before the end of the legislative session.³⁹ The rider would have overturned the court's decision and placed the Corps squarely in charge of permitting for valley fills. In addition, the rider would have exempted valley fills from federal and state water quality standards. Each of Senator Byrd's attempts to insert the mountaintop removal rider into individual appropriations bills was rebuffed. Eventually, the bills were rolled into an omnibus budget bill, and Senator Byrd attempted to attach the rider to this bill also.⁴⁰ That effort was also thwarted, due to opposition from both Republican and Democrat House conferees. Ultimately, Senator Byrd was given the opportunity for a floor vote in the Senate on his amendment; although it passed by a margin of 56-33,⁴¹ it was attached to legislation that both Senator Byrd and others in the Senate knew [30 ELR 11179] would not move further through the Congress that year.⁴² During the congressional battle, Judge Haden apparently decided that there was a need for a cooling off period. A month after his ruling, the judge issued a stay of the court decision, pending the outcome of an appeal to the Fourth Circuit Court of Appeals. In his order, the judge commented that the "dire predictions . . . [and] third party statements of what the Court's Opinion holds . . . reflect, at best, misunderstandings and, at worst, egregious misrepresentations, of significant portions of the ruling."⁴³

The Appeal and the Proposal

Meanwhile, the litigation continues, with briefing for the Court of Appeals for the Fourth Circuit underway. The United States filed its first appeals brief on April 20, 2000, as an intervenor on the side of the state of West Virginia and the intervening coal companies, trade associations, and unions. The brief appeared to be an attempt to balance conflicting views within the Administration. The Department of Justice (DOJ) sided squarely with the plaintiffs concerning their right to sue the state under the Eleventh Amendment of the U.S. Constitution. The DOJ next argued that the district court was correct in its ruling that the buffer zone rule applied to those parts of streams buried by valley fills, thereby abrogating the August 1999 MOU. However, on this point the Administration hedged, suggesting that there was some degree of "de minimis" placement of fills in streams that could take place without violating the buffer zone rule. Yet the Administration failed to define the parameters of the "de minimis" category, other than to offer the example of a "single rock or a handful of dirt." Finally, the Administration maintained, weakly, that the Corps had the authority to issue permits for valley fills under § 404. The Administration argued that the district court's ruling on this point was not binding law but rather dicta that could be ignored. However, in case the appellate court did not accept this argument, the DOJ further noted that, in order to clarify matters, the Administration was—the same day the brief was filed—proposing a new rule to change the definition of fill, in a manner that would clearly grant the Corps the authority to issue permits for valley fills.

While the Administration described the proposed rule change as simply a "clarification," environmental groups saw the proposed rule as another effort, following the August 1999 MOU and the Byrd rider, to give the Corps the authority to rubberstamp mountaintop removal valley fills, as they had been doing illegally for so long. On the other side, West Virginia and the coal companies denounced their betrayal by the Clinton Administration. DEP spokesmen attacked the Administration in the press for their unilateral withdrawal from the August MOU, and filed a motion with the Fourth Circuit seeking to limit the federal government's role in the case to one as an "amicus" or "friend of the court" rather than an intervening party. The motion was denied.

In addition, the DEP sent the DOI's Office of Surface Mining a letter seeking "clarification" on how to interpret and apply the Administration's new "de minimis" test for the buffer zone rule to pending applications for valley fills. After a substantial delay, the Administration replied in a letter that new permit applications would have to be analyzed on a case-by-case basis to determine whether the proposed fills would violate the buffer zone rule. Since the stay of its order was issued by the district court, West Virginia has threatened to begin processing the pending applications for permits to construct valley fills. Thus far, no new permits have yet been issued.

Despite White House opposition to the Byrd rider, on April 20, 2000, the Clinton Administration proposed to amend the rules of the CWA in a manner remarkably similar to the rider the president threatened to veto.⁴⁴ The proposed rule would eliminate the "waste exclusion" from the definition of "fill material" to give the Corps the authority to issue permits for valley fills.⁴⁵

In short, the proposal at issue would make two significant changes to the Corps' current definition of "fill material." First, it would eliminate the "primary purpose" test for determining whether material qualified as fill,⁴⁶ and replace it with an "effects test."⁴⁷ Thus, under the proposed revision, "fill material" would mean "material (including but not limited to rock, sand, and earth)that has the effect of: (i) Replacing any portion of water of the United States with dry land; or (ii) Changing the bottom elevation of any portion of a water of the United States."⁴⁸ This proposed change would make the Corps and EPA definitions of "fill" identical.⁴⁹ Second, it would eliminate the second sentence, commonly referred to as the "waste exclusion," from the current definition,⁵⁰ thereby giving the Corps new authority to issue permits under § 404 for disposing of waste in waters of the United States. The proposal goes well beyond what is necessary to harmonize of the Corps' and EPA's definitions of fill material, and will result in substantial harm to the environment as a result.

Under the proposed rule, EPA would retain authority over wastes for which effluent limitation guidelines exist or are proposed and for discharges covered by national pollutant discharge elimination system (NPDES) permits.⁵¹ The Corps would now have legal authority over the mining "overburden," at issue in the mountaintop removal case, as well as other coal and hard rock mining wastes.⁵² The Corps would also retain regulatory authority over other solid materials [30 ELR 11180] disposed of in waters that do not have effluent limits or NPDES permits.⁵³

The Corps has proposed that some categories of waste be designated as "unsuitable fill material," which includes items such as appliances, tires, trash, and car bodies.⁵⁴ These materials would "generally"⁵⁵ not be eligible for permitting under § 404,⁵⁶ but the decision would be at the discretion of the Corps' district engineers on a case-by-case basis.⁵⁷ Examples and categories of unsuitable fill material are only discussed in the preamble,⁵⁸ and, of course, would not be legally binding.

The Corps and EPA frame their proposal as allowing the Corps' district engineer "complete discretion to refuse to process any permit application"⁵⁹ to discharge fill material deemed unsuitable. The problem with this proposed regulatory scheme is that the district engineer will also have "complete discretion" to approve any permit application to discharge fill material not deemed unsuitable.⁶⁰ Given the history of valley fills, and other fills sanctioned under NWPs 21, 26 and other general and individual permits, it is unsurprising that so many citizens are unwilling to place their trust in their district engineer.

To a certain extent, the kinds of wastes that could be lawfully permitted for disposal in waters of the United States under the new rule is unknown. The Corps has provided no comprehensive analysis of the potential categories and types of waste it anticipates will be brought under its new permitting authority. Its explanations (or lack thereof) fail to acknowledge the new categories and types of wastes that would likely be legally disposed of in our nation's waters. The Corps has demonstrated an unwillingness or inability to consider the cumulative impacts of its proposal and its permitting decisions.

Moreover, the proposed rule would place the new definition of "fill material" on a collision course with state water quality standards when, to this point, the two have been structurally consistent. The CWA was written to provide comprehensive protection for waters of the United States at both the federal and state levels. In order to protect our waters, federal agencies proposing to permit activities under §§ 402 and 404 must obtain certification from the affected state that the proposed activity will not violate water quality standards. State water quality standards and the federal permitting scheme are designed to work together. The current waste exclusion under the Corps' definition of fill prevents the Corps from permitting the disposal of waste in waters of the United States. This prohibition complements the federal and state water quality standards' requirement that the designated use of waters may not be for waste assimilation.⁶¹ Thus, the drafters of the § 404 fill rule and the waste assimilation provisions of the water quality standards had the same goal of preventing the degradation or destruction of waters by discharges of waste. Indeed, the proposed rule conflicts with state and federal water quality standards. If it becomes final, it will create a situation in which any discharge of fill material composed of waste could not be certified as compliant with water quality standards.

Finally, the Corps has made a "preliminary determination"⁶² that the proposed change "does not constitute a major federal action significantly affecting the quality of the human environment, and thus does not require the preparation of an Environmental Impact Statement."⁶³ Contrary to this statement, federal policy for the past 20 years has forbidden the dumping of waste into waters of the United States. The proposed rule, if finalized, would change that policy, and make the nation's waters potential dumping grounds for waste. Incredibly, the Clinton Administration proposes to make this dramatic turnabout in clean water policy without providing the public (or itself) the benefit of an EIS.

Current Practices Are Unacceptable

The mountaintop removal case glaringly illustrates the Corps' practice of permitting the dumping of billions of tons of waste into waters of the United States without the legal authority to do so. Rather than hold the Corps, the states, and the mining industry to their obligations under the CWA to "restore and maintain the chemical, physical, and biological integrity of the nation's waters," the Clinton Administration's proposed solution is literally to change the rules of the CWA to ratify the Corps' "current practice," rather than requiring the practice to meet the requirements of the CWA.

The Corps and EPA state that the proposal "is intended to clarify what constitutes 'fill material' subject to CWA section 404."⁶⁴ But the current rules are clear—they prohibit the Corps from permitting the dumping of waste into waters of the United States. Those rules have been violated for many years, and violations continue today. The proposed rule would do nothing to "clarify" this situation. Instead, it will ratify the current practice that is rightfully illegal. If finalized as proposed, this rule change would legitimate the illegal devastation of the Appalachian forests, wetlands, streams, and communities. Not only would the rule perpetuate mountaintop removal; it would open the nation's wetlands, rivers, lakes, streams, and coastal waters as sites for many other kinds of waste, largely at the discretion of a Corps district engineer. It would represent a giant step backward in protection of our nation's waters and natural resources.

1. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

2. 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA §§ 101-908.

3. 54 F. Supp. 2d 635 (S.D. W. Va. 1999) (injunction entered precluding Arch subsidiaries from engaging in preconstruction or mining activities at the Hobet Spruce Fork mine operation), motion to dismiss claims against federal defendants granted, 54 F. Supp. 2d 653, 29 ELR 21316 (S.D. W. Va. 1999), settlement agreement rev'd, 72 F. Supp. 2d 642, 30 ELR Digest 20115 (S.D. W. Va. 1999) (court accepted a settlement agreement resolving several counts of the amended complaint), decree entered, 83 F. Supp. 2d 713, 30 ELR 20386 (S.D. W. Va. 2000).

4. U.S. FWS, PERMITTED STREAM LOSSES DUE TO VALLEY FILLING IN KENTUCKY, PENNSYLVANIA, VIRGINIA, AND WEST VIRGINIA: A PARTIAL INVENTORY 6 (1998).

5. U.S. FWS, A SURVEY OF AQUATIC LIFE AND TERRESTRIAL WILDLIFE HABITATS ON THE PROPOSED SPRUCE NO. 1 SURFACE MINE IN LOGAN COUNTY, WEST VIRGINIA 21 (1998).

6. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

7. See 40 C.F.R. § 131.10.

8. 33 U.S.C. § 1344(e)(1), ELR STAT. FWPCA § 404(e)(1).

9. Copies are on file with the author.

10. Bragg, 54 F. Supp. 2d at 637-38.

11. Bragg, 54 F. Supp. 2d at 658-59, 29 ELR at 21317-18.

12. Id. at 658-59, 29 ELR at 21317.

13. Bragg, 54 F. Supp. 2d at 639 ("The preliminary injunction hearing began the [morning after a temporary restraining order was issued] and has continued on every day available on the docket, eventually consuming over thirty-five hours of courtroom time.").

14. Id. at 653, 29 ELR at 21316.

15. Id. at 646.

16. Bragg, 83 F. Supp. 2d at 722, 30 ELR at 20389.

17. Id. at 718, 30 ELR at 20387.

18. Bragg, 72 F. Supp. 2d at 648-64, 30 ELR Digest at 20115-16.

19. Id. at 647, 30 ELR Digest at 20115.

20. Id. at 651, 30 ELR Digest at 20115.

21. Id.

22. Id. at 653-54, 30 ELR Digest at 20116.

23. The MOU was entered into after the litigation commenced.

24. Id.

25. Id. at 658, 30 ELR Digest at 20116.

26. Id. at 655-60, 30 ELR Digest at 20116.

27. Id. at 656, 30 ELR Digest at 20115; 33 C.F.R. § 323.2(e).

28. 33 C.F.R. § 323.2(e).

29. Bragg, 72 F. Supp. 2d at 657, 30 ELR Digest at 20115.

30. Id. at 659-60, 30 ELR Digest at 20116.

31. Id. at 659, 30 ELR Digest at 20116 (quoting from the testimony of David Densmore of the FWS).

32. Id.

33. Id. at 660-61, 30 ELR Digest at 20116.

34. Id.

35. Id. at 661, 30 ELR Digest at 20116.

36. Id. at 661-62, 30 ELR Digest at 20116.

37. Id. at 662, 30 ELR Digest at 20116.

38. Id. at 663, 30 ELR Digest at 20116.

39. S. 2324, 106th Cong. (1999) (Foreign Operations); S. 2237, 106th Cong. (1999) (DOI); S. 2440, 106th Cong. (1999) (Labor, Health, and Human Services); S. 2260, 106th Cong. (1999) (U.S. Departments of Commerce and State and the DOJ).

40. H.R. 4328, 106th Cong. (1999).

41. Amendment No. 2780 to H.J. Res. 82.

42. The House was already in recess when the Senate voted on Senator Byrd's amendment. The amendment was attached to one of two continuing resolutions (CR) passed by the House of Representatives in order to keep the government functioning until President Clinton, then traveling overseas, could return to sign the Omnibus spending bill. The other CR, H.J. Res. 83, was passed by the House and Senate, and the House recessed before Senator Byrd was given the opportunity to have a vote to amend H.J. Res. 82. While procedurally the House could also have passed the Senate's amended version of H.J. Res. 83, it was understood in both chambers that the House would not do so.

43. Bragg v. Robertson, 190 F.R.D. 194, 196, 30 ELR 20165 (S.D. W. Va. 1999).

44. Department of the Army, Corps of Engineers and U.S. EPA, Proposed Revisions to the Clean Water Act Regulatory Definitions of "Fill Material" and "Discharge of Fill Material," 65 Fed. Reg. 21292 (Apr. 20, 2000).

45. Id.

46. Id. at 21294-95.

47. Id. at 21294-97.

48. Id. at 21299 (proposed revised 33 C.F.R. § 323.2(e)(1)).

49. Id. at 21295.

50. Id. at 21295-96.

51. Id. at 21295.

52. Id.

53. Id. at 21296.

54. Id. at 21296-97.

55. Id. at 21296.

56. Id.

57. Id. at 21296-97.

58. Id.

59. Id. at 21296.

60. Id. at 21297 ("Therefore, the new definition of 'unsuitable fill material' would not reduce in any way the discretion ofthe District Engineer to authorize the discharge of any waste material for a beneficial purpose.").

61. 40 C.F.R. § 131.10(a).

62. 65 Fed. Reg. at 21299.

63. Id.

64. Id. at 21292.