Federal Army Corps of Engineers officials have never seen a coal company successfully re-create a stream that was buried.

But the agency moved Monday to accept such unproven proposals as mitigation to offset the impacts of mountaintop removal coal mining.

The new corps rule is not a direct effort at overturning the latest federal court ruling to curb mountaintop removal, but environmentalists say the rule may be aimed at helping future industry arguments in support of its mitigation applications.

"It's trying to put a greater legal stamp on approval of what the agencies are doing already," said Joan Mulhern, a lawyer with the Washington, D.C., group Earthjustice.

The corps issued its new rules Monday in conjunction with the U.S. Environmental Protection Agency. Corps officials had proposed the rule in March 2006 to meet a congressional mandate. Lawmakers ordered the corps to write new rules to govern the mitigation of damage to wetlands by developers.

The Bush administration added language concerning mitigation of damage to streams. Ecologists, biologists and other stream experts complained loudly. They said that scientists weren't sure that important ecological functions of small headwater streams - like those buried by mountaintop removal - could be recreated by coal companies.

One letter to the corps, signed by more than 125 scientists, cited a study that found "no evidence for successful creation of a stream channel" in more than 37,000 stream restoration project records.

In its final rule, the corps said it recognized "that the science of stream restoration is still evolving and that more research is needed.

Federal Army Corps of Engineers officials have never seen a coal company successfully re-create a stream that was buried.

But the agency moved Monday to accept such unproven proposals as mitigation to offset the impacts of mountaintop removal coal mining.

The new corps rule is not a direct effort at overturning the latest federal court ruling to curb mountaintop removal, but environmentalists say the rule may be aimed at helping future industry arguments in support of its mitigation applications.

"It's trying to put a greater legal stamp on approval of what the agencies are doing already," said Joan Mulhern, a lawyer with the Washington, D.C., group Earthjustice.

The corps issued its new rules Monday in conjunction with the U.S. Environmental Protection Agency. Corps officials had proposed the rule in March 2006 to meet a congressional mandate. Lawmakers ordered the corps to write new rules to govern the mitigation of damage to wetlands by developers.

The Bush administration added language concerning mitigation of damage to streams. Ecologists, biologists and other stream experts complained loudly. They said that scientists weren't sure that important ecological functions of small headwater streams - like those buried by mountaintop removal - could be recreated by coal companies.

One letter to the corps, signed by more than 125 scientists, cited a study that found "no evidence for successful creation of a stream channel" in more than 37,000 stream restoration project records.

In its final rule, the corps said it recognized "that the science of stream restoration is still evolving and that more research is needed.

"However, the lack of a fully developed set of tested hypotheses and techniques does not mean that stream mitigation (particularly via restoration, enhancement and preservation) cannot be successfully performed and that it should not be required where avoidance of impacts is not practicable," the corps said.

In late 2006 and early 2007, these arguments played out in U.S. District Judge Robert C. Chambers courtroom in Huntington.

Environmental groups, represented in part by Earthjustice, challenged four corps permits. They argued that the mitigation proposals were inadequate, and therefore could not be used to lower the level of impacts to less than minimal and avoid more detailed permit reviews.

In a March 2007 ruling, Chambers sided with the environmentalists. He noted that two top corps officials testified that they weren't aware of any successful stream recreations in the Appalachian region.

Chambers' decision is now under appeal to the 4th U.S. Circuit Court of Appeals.

The new corps rule does not directly rewrite the regulations that Chambers relied on in his decision. But Mulhern said that administration's goal might still be to help the coal industry.

"They are trying to create new authority and prop up the practices they have been allowing all along," Mulhern said.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.