SELC appeals decision to allow unlimited stream filling

SELC and our partners have filed an appeal in response to a court’s decision that the U.S. Army Corps of Engineers can continue to allow unfettered stream filling under a flawed permit, despite the Corps’ finding that the harmful impacts to Alabama’s waters are even greater than originally thought.

Nationwide Permit 21 is a general approval for surface coal mining activities issued by the Corps that has allowed 41 mines in the Black Warrior River watershed to be “grandfathered” in under a previous version of the permit, therefore avoiding new limits on stream filling. The Corps revised the permit in 2012, finding that a 300-foot limit on stream filling is necessary to prevent more than minimal environmental impacts, but did not apply that limit to the 41 mines. At those sites, unlimited stream filling is permitted.

After the Corps discovered it had miscalculated the impacts from unlimited stream filling, a ruling from the Eleventh Circuit Court of Appeals forced the agency to go back and fix the error within a year. The Corps released its reanalysis of the impacts in September and determined that, even though it had grossly underestimated the impacts under the permit, those impacts are still considered minimal.

Following this reanalysis, the District Court for the Northern District of Alabama issued an order last week that agreed with the Corps, finding that the agency was not required to apply the new stream fill limits to grandfathered permits. SELC has since filed an appeal asking the Eleventh Circuit Court of Appeals to review the district court’s decision.

For the past two years, SELC and our partners have been working to stop the use of the grandfathered Nationwide Permit 21 in the Black Warrior River basin, a major source of drinking water for Birmingham, Tuscaloosa, and other Alabama communities.