The U.S. Army Corps of Engineers is illegally allowing the destruction of Kentucky streams under tons of coal mining waste, according to a lawsuit filed on January 27, 2005 by three Kentucky environmental and citizen organizations.

“In the last three years, the Corps has rubber-stamped more than 50 permits for 191 valley fills that will destroy more than 35 miles of Kentucky’s streams,” said Teri Blanton of Kentuckians For The Commonwealth. “This is an absurd and outrageous abuse of their power and neglect of their duty to protect the nation’s waterways.”

The groups - Kentucky Riverkeeper, Kentuckians For The Commonwealth (KFTC), and Kentucky Waterways Alliance (KWA) - charge that the Corps’ use of a Nationwide Permit 21 (NWP 21) for valley fills violates the federal Clean Water Act.

“The NWP 21 program was meant for activities that have only minimal adverse environmental effects, both individually and cumulatively,” said Alan Banks, Executive Director of Kentucky Riverkeeper in Richmond, Kentucky.

The groups are challenging 54 NWP permits issued in the last three years by the Corps “for mining operations with valley fills.”  Instead, they want the Corps to apply another section of the Clean Water Act that calls for “individual” permits which considers site-specific environmental impacts on the stream and watershed and provides an opportunity for public comment.

The valley fills cited in the suit are located in the Cumberland, Kentucky, Big Sandy and Licking River watersheds.

“Since 1992, the Corps has used NWP 21 to allow ‘Big Coal’ to bury more than 1,200 miles of headwater streams throughout Appalachia,” added Banks.  “The Corps has also buried the truth by calling this major environmental disaster a cumulatively minimal impact.”

Valley fills bury streams with sediment and rock.  This “fill” smothers aquatic life, and filling headwater streams with sediment can harm aquatic habitat downstream.  Therefore, sediment is considered a pollutant requiring a discharge permit under the Clean Water Act.

“Coal mining and valley fills bury more streams than any other activity in the country,” said Judith Petersen, KWA’s Executive Director.  “Valley fills bury streams under tens of thousands of tons of waste rock, dirt and sediment, killing all aquatic life below and affecting water quality downstream.”

“We are asking the court to declare that the Corps’ use of NWP 21 in Kentucky is illegal and to block the Corps from using NWP 21 to authorize any new valley fills in Kentucky,” said co-counsel Amanda Moore of the Appalachian Citizens Law Center based in Prestonsburg, Kentucky.

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. The West Virginia decision, however, does not apply to Kentucky valley fills, and hence the lawsuit in Kentucky.

 “Last July, a West Virginia federal judge decided that the Corps’ use of this same general permit for coal mining valley fills in southern West Virginia was illegal,” said Jim Hecker, Environmental Enforcement Director for Trial Lawyers for Public Justice. “This case applies the same legal principle to Kentucky.” 

The groups do not intend to stop coal mining, but do demand that the Corps and the coal companies comply with the law. “Valley fills are so damaging that the Corps must use individual permits, not NWP 21.  Individual permits under the Clean Water Act can only be issued after careful scientific review and public comment, which the Corps has evaded by using NWP 21,” said Joe Lovett, Executive Director of the Appalachian Center for the Economy and the Environment (ACEE).

“It is totally unnecessary for the coal industry to destroy our streams in order to mine coal. The coal industry is flaunting the law, and the Corps of Engineers has been a willing partner in this crime,” added KFTC’s Blanton. “For the sake of Kentucky's future, we need to put an immediate end to practice.”

The plaintiffs are represented by Joe Lovett, Appalachian Center for the Economy and the Environment; Brent Bowker and Amanda Moore, the Appalachian Citizens Law Center; Jim Hecker, Trial Lawyers for Public Justice; and Joe Childers, Esq.

A copy of the complaint in Kentucky Riverkeeper et. al. v. Rowlette is available online at <http://www.tlpj.org>, together with a map showing the locations of the permitted mines that are being challenged in the case.

The West Virginia court decision in Ohio Valley Environmental Coalition v. Bulen is available at <http://www.wvsd.uscourts.gov/district/opinions/pdf/BULEN_FINAL.pdf>.