"Plaintiffs have simply looked at one tree, the definition, and tried to extrapolate a whole forest," they said. "This court needs to consider the entire forest of law and regulations as it exists."
There is no way that valley fills can meet the 100-foot stream buffer zone requirements of the Clean Water Act, so they must be exempt from it.
"Like the most aggressive revisionist historians, plaintiffs have ignored the received and uninterrupted interpretation of nearly 20 years' vintage and asked this court to reinterpret regulations that have long been understood and applied," Bailey and Glasser said.
"Specifically, plaintiffs have reached deep into the bowels of the complex regulatory scheme which governs all mining in West Virginia to ask this court to rule that 'valley fills in perennial and intermittent streams violate the buffer zone rule as a matter of law.'
"That is a revolutionary request," they said. "If granted, it would bring mining in West Virginia to a grinding halt, because almost all mining operations - surface and underground - use valley fills, and many of those fills exist or will exist in headwater areas with intermittent or perennial flow."
Bailey and Glasser also raised one issue of disputed fact, which could scuttle efforts to resolve the case early on summary judgment.
They said that DEP does not agree to any "assumed harm to water quality, assumed water degradation, or assumed harm to stream flow" because of valley fills.
Haden has not indicated when he will rule on the summary judgment motions.