Environmental groups and the Justice Dept. are battling it out in federal court over the legality of Corps of Engineers wetlands permits issued for disposal of mining waste.
In July, the Ohio Valley Environmental Coalition and other groups scored a victory in U.S. District Court in Huntington, W.Va., when Judge Joseph R. Goodwin ruled that the Corps' Nationwide Permit 21 violated the Clean Water Act. He barred the Corps from authorizing work under the permit in waterways in the southern district of West Virginia. The Justice Dept. appealed Goodwin's ruling.

In the latest development, environmental groups on Dec. 3 filed a motion in district court alleging that the Corps broke the injunction and asking Goodwin to find the agency in contempt. Justice filed its response on Dec. 7, arguing that Corps has complied with the judge's orders.

The case, Ohio Valley Environmental Coalition v. Bulen, centers on disposing of waste material from mountaintop coal mining, in which the upper part of a mountain is removed so miners can excavate seams of coal. According to the July court decision, the Surface Mining Control and Reclamation Act requires mining companies to restore the area to its "approximate original contour," but there always is excess material, which is deposited in valley fills or other locations.

Nationwide Permit 21, one of a series of broad wetlands permits that the Corps issues, deals with surface coal mining, allowing companies to discharge fill material into "waters of the United States."

The Ohio Valley organization and its fellow plaintiffs focused on 11 regional projects for which the Corps issued the permits since March 2002.

In his July 8 ruling, Goodwin found that "Nationwide Permit 21 does not comply with the plain language, structure, and legislative history of the Clean Water Act." He added that Section 404 of that statute "authorizes the Corps to issue nationwide permits only for those activities determined before issuance to have minimal environmental impact. Nationwide Permit 21 requires a case-by-case, post hoc determination of minimal environmental impact which runs afoul of that section." He also blocked the Corps from authorizing Permit 21 work in the region and directed the agency to suspend authorizations for valley fills and surface impoundments at the 11 sites on which the plaintiffs focused.

In its Dec. 3 filing, the Ohio Valley group alleges that the Corps has shown "flagrant disregard" for the injunction and asks that the agency be found in contempt. Four days later, the Justice Dept. filed its response, saying that "the Corps has complied with the court's orders in all respects, and has taken no action that is inconsistent with the orders."