Alabama coal interests intervene in Section 404 water lawsuit

A federal judge on Dec. 27 allowed several coal industry parties, including the Alabama Coal Association, to intervene in a Nov. 25 lawsuit over the Nationwide Permit 21 program of the U.S. Army Corps of Engineers.

Nationwide Permit 21 (NWP 21), issued every few years under Section 404 of the Clean Water Act, is an overall permit that allows certain dredge and fill activities around streams in relation to coal mining. Coal companies need to get authorizations under NWP 21 for each specific project.

Environmental groups since the late 1990s have been trying to shut down or at least severely curtail coal mining under Section 404 through federal lawsuits filed in various coal-producing states, including Kentucky and West Virginia. This particular lawsuit, filed at the U.S. District Court for the Northern District of Alabama against the Corps, is from Black Warrior Riverkeeper and Defenders of Wildlife.

The parties allowed to intervene in the suit are the Alabama Coal Association, MS&R Equipment, Reed Minerals, Twin Pines LLC and Walter Minerals. These intervenors have been allowed to respond to plaintiffs’ motion for preliminary injunction on or before Jan. 8, 2014. Plaintiffs may reply on or before Jan. 15, 2014. Plaintiffs’ motion for preliminary injunction is set for oral hearing on Jan. 30, 2014.

“If the 2012 NWP 21 were vacated, mines associated with 38 of the permit authorizations listed in Exhibit 1 of the complaint would be forced to close, resulting in approximately 1,000 mine workers being laid off,” said the Dec. 23 intervention request by the coal industry parties. Of the mines listed in the complaint, four are operated by MS&R Equipment and its affiliate Cedar Lake, three are operated by Reed Minerals and its affiliate C&H Mining, two by a Twin Pines subsidiary, and five by subsidiaries of Walter Minerals.

In its Dec. 18 brief arguing against a preliminary injunction, the Corps wrote: “This case is both a facial and an as applied challenge to a nationwide permit that the Corps issued in 2012, Nationwide Permit 21 (‘the 2012 NWP 21’). NWP 21 involves the discharge of dredged or fill material into waters of the United States incident to surface coal mining activities. Some form of NWP 21 has been in existence since 1982, being issued at five year intervals, most recently in 2012. The 2012 NWP 21 is significantly different from the 2007 version. With respect to the 2012 NWP 21, the Corps determined that there would be minimal adverse environmental effects, individually and cumulatively, from project-specific activities authorized under the permit. Plaintiffs take issue with the provision in the 2012 NWP 21 that allows certain activities previously authorized by the 2007 NWP 21 to be authorized under the 2012 NWP 2012 without application of the new 2012 limits if certain criteria are met. As the Corps establishes below, in promulgating NWP 21, the Corps fully satisfied the requirements of the applicable statutes in issuing the 2012 NWP 21, and thus, Plaintiffs are not likely to prevail on the merits. In addition, Plaintiffs fail to demonstrate irreparable harm in the absence of a preliminary injunction, or that such an injunction is in the public interest.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.