Under federal law, the Corps can only issue those permits for fill material, which is defined as "material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody."
Valley fills violate federal rules that prohibit strip mining within 100 feet of a stream. This "buffer zone" requirement may only be waived after regulators make a series of specific findings that allowing the mining will not violate state or federal water pollution limits.
"The director, however, routinely grants permits that propose to fill intermittent and perennial streams with mining waste without making the required findings in regard to the waters to be filled," the letter states. "One egregious harm stemming from the director's failure to make the findings is the filling and destruction of hundreds of miles of the state's streams with mining waste."
The DEP has established a pattern and practice of issuing strip mine permits without requiring companies to thoroughly study the impacts of their mines on water quality, and without requiring complete plans for how companies will minimize those impacts.
In addition to the Highlands Conservancy, the citizens filing the notice of intent to sue were James W. and Sibby R. Weekly, Carlos and Linda Gore, and Tommy and Victoria Moore, all of Blair; Patricia Bragg of Delbarton; Harry M. Hatfield of Madison; and Cheryl Price and Jerry Methena of Uneeda.
The Conservancy and the residents are represented by Joseph M. Lovett, a Charleston lawyer with the nonprofit firm Mountain State Justice Inc.; Patrick C. McGinley, a West Virginia University law professor; Suzanne M. Weise, a Morgantown lawyer; and James Hecker of the Washington group Trial Lawyers for Public Justice.
John Ailes, chief of the DEP Office of Mining and Reclamation, said Friday that he had not seen the notice of intent to sue yet and could not comment on it.
In previous interviews, Ailes has defended his office and its handling of permits for mountaintop removal strip mines.
"This is still the best program in the country," Ailes said last month. "It always has been and it always will be."
Roger Calhoun, director of the Charleston field office of the U.S. Office of Surface Mining, said last week there are some things the state could do better. But, Calhoun downplayed the issue of mountaintop removal mines and their environmental impacts.
"This is not the biggest environmental issue in the state," Calhoun said. "I have other things to do."