Memorandum Opinion and Order

This case involves several environmental groups’ challenge to the Army Corps of Engineers’ (“Corps”) decision to issue a nationwide permit, NWP 21, authorizing the discharge of dredged and fill material associated with surface coal mining activities, which includes mountaintop mining. Under this controversial method of mining, coal seams running through the upper fraction of a mountain, ridge, or hill are reached by blasting and removing each layer of rock above the seam. The mountain is demolished layer by layer as each layer of rock and coal is removed until the cost of proceeding exceeds the value of the remaining coal.  During this process, the removed rock is placed in adjacent valleys and, once the coal is extracted, replaced in an attempt to recreate the contour of the mountain. See Bragg v. W. Va. Coal Assoc., 248 F.3d 275, 286 (4th Cir. 2001).  This dirt and rock, called overburden or spoil, “swells” or increases in size by as much as 25%, creating excess material not needed to rebuild the mountain.  Id.  As Judge Haden explained, “[t]he overburden . . . is disposed of by creating valley fills, that is, literally, filling the valleys with waste rock and dirt.” Kentuckians for the Commonwealth, Inc. v. Rivenburgh (“Rivenburgh I”), 204 F. Supp. 2d 927, 92930 (S.D. W. Va. 2002).  These valley fills permanently eliminate previously existing valley streams. In the past twenty years, thousands of miles of streams in Appalachia, constituting over 2% of the streams in the area, have been impacted by the discharges associated with mountaintop mining. Draft Programmatic Environmental Impact Statement at III.D-2 (2003) (“DPEIS”).  In West Virginia alone, over 200 miles of streams have been permanently lost.  DPEIS at III.K-49.