Mountaintop Coal Mining and the Clean Water Act: The Fight Over Nationwide Permit 21

Abstract

The Clean Water Act’s (CWA) goal of protecting the waters of the United States has been threatened by the Army Corps of Engineers (Corps) increased use of general permits, such as Nationwide Permit 21 (NWP 21). NWP 21 is issued by the Corps to authorize the disposal of material from mountaintop coal mining, even though this type of disposal has serious environmental effects. Recent court rulings have upheld the use of NWP 21. However, by focusing on the questions left unresolved by Congress and the courts, there is an opportunity to help guarantee that the goal of the CWA is achieved. To ensure greater environmental protection, the adequacy of the minimum impact determinations performed by the Corps when it enacts a NWP should be challenged to ensure their adequacy, and minimum impact determinations should be required before any issuance of a NWP.