In their lawsuit, environmentalists alleged that the corps has improperly issued dozens of 404 permits for mountaintop removal mine valley fills. The suit also alleges the corps has never performed a required study of the environmental impacts of those fills before issuing permits for them.
The suit also states, however, that "The corps may be in the process of revising its policy.
"Officials in both the corps' Cincinnati regional office and its Huntington district office ... have, within the past several months, made statements that Section 404 of the Clean Water Act does not and cannot authorize disposal of mining waste in the waters of the United States," the suit states.
"These statements have not been disclosed to the public in any written document," the suit says. "Huntington and Cincinnati corps permitting officials have made these statements because they have come to believe that surface mining spoil is 'waste' rather than 'fill' material."
The suit names three corps officials who have advanced this position. They include Woods of the Cincinnati office; Michael Gheen, chief of the regulatory branch in Huntington; and Richard Buckley, chief of the permitting section in Huntington.
The suit cites a July 2 letter to Lovett, the environmental lawyer, in which Gheen declined to state the corps' position in writing.
Gheen noted that, "The Corps of Engineers, on a national basis, is presently reviewing the current regulatory processes associated with valley fills among the appropriate federal regulatory agencies."
In an interview before the lawsuit was filed, Gheen said last week that the corps reads Copenhaver's decision to say that valley fills cannot be permitted under Section 404.
"The valley fill is waste material," Gheen said. "That pretty much takes us out of the picture. We've not disagreed with that."
Buckley said the corps stopped issuing 404 permits for valley fills in May, after the agency was made aware of Copenhaver's 10-year-old court decision. Buckley said that since then, the corps may have issued a couple of letters concerning 404 permits for valley fills, but that those letters "aren't really valid for anything."
"We're not supposed to authorize valley fills," Buckley said.
According to the lawsuit, if the corps cannot authorize valley fills under 404 permits, the fills must receive permits under Section 402 of the Clean Water Act. In that case, the fills must comply with all federal and state water quality standards. Those standards limit the amount of suspended solids and other pollutants that can be dumped in streams. The standards also include an anti-degradation standard which prohibits degradation of the uses of streams.
"By burying waters of the state beneath millions of tons of rock and dirt, valley fills from surface mines necessarily kill aquatic life in the buried part of the stream and make water contact recreation impossible," the lawsuit states. "These fills therefore violate West Virginia's anti-degradation standard.
"Valley fills that cover streams, creeks and branches use such waters for waste assimilation, cause deposits of materials on the bottom of such waters, and adversely and significantly alter the integrity of such waters, including the physical, hydrologic and biologic components of their aquatic ecosystems."
Jim Hecker, a lawyer for the Washington group Trial Lawyers for Public Justice, is helping to represent the Highland Conservancy and the coalfield residents.
"These mountaintop removal mines are destroying streams at an astonishing rate," Hecker said last week. "If mountaintop removal mining is going to take place in West Virginia, it needs to comply with federal laws, which prevent this destruction from taking place."