Section 404 of the Clean Water Act allows the Army Corps to authorize projects with individual permits or streamlined general permits for categories of activities that have minimal effects on the environment. Certain conditions must be met for coverage under a general permit. . . .
Issued in 2002, Nationwide Permit 21 authorized discharges of the fill material into waters of the United States.
Coal companies applying for a permit must file a "preconstruction notification" with the Army Corps, which determines whether proposed projects will have a minimal effect on the environment. The corps would then determine if the mining company should have to undertake separate projects to mitigate the environmental impact of their activity.
In his July ruling, Goodwin said the "fundamental problem with the corps approach is that NWP 21 defines a procedure instead of categories of activities."
He said the corps did not define mining activities that will have only minimal effects on the environment and only provided a "post-hoc, case-by-case evaluation of environmental impact."
Goodwin also said the process does not include a provision for public hearings.
The appeals court disagreed on each point. The three-judge panel said that the corps used both procedural and substantive parameters to define discharge activities covered under NWP 21.