In a blow to the coal industry and the Underwood administration, federal regulators filed a brief Monday that supports key parts of a court order to limit mountaintop removal mining.
Lawyers from the U.S. Justice Department said a stream "buffer zone" rule was intended to control the size of valley fills.
"Valley fills in intermittent or perennial streams may be authorized under the buffer zone rule only if the permitting agency finds that they will not adversely affect the environmental resources of the filled stream segments," said the brief, filed with the 4th U.S. Circuit Court of Appeals.
"The elimination of substantial intermittent or perennial stream segment[s] necessarily causes adverse environmental effects, as it eliminates all aquatic life that inhabits those stream segments," the brief said.
But federal officials also opposed part of federal district Judge Charles H. Haden II's ruling that they said could prohibit all valley fills.
"We think that the broad ban on any introduction of spoil into the streams is just too broad," said Lois Schiffer, the federal government's top environmental lawyer.
"We have to look case by case to see if the protections of the Clean Water Act are met," she said in a telephone interview. "We think it will have the effect of being more environmentally protective than it has been in the past." Schiffer filed a 54-page brief Monday evening on behalf of the U.S. Environmental Protection Agency, the Army Corps of Engineers and the Department of the Interior's Office of Surface Mining.
Mountaintop removal mining blasts off entire hilltops to uncover coal deposits. Leftover rock and earth are dumped into nearby valleys, burying streams. At least 750 miles of West Virginia streams have been approved to be buried by valley fills, according to state Division of Environmental Protection records.
In October 1999, Haden ruled that a federal stream buffer zone rule prohibited fills in perennial streams, which flow all year, and intermittent streams, which flow most of the year. Fills are allowed only in smaller, ephemeral streams, which flow only when it rains or when snow melts, Haden ruled.
In his ruling, Haden also said fills cannot be authorized under "dredge-and-fill" permits issued by the Corps of Engineers. Instead, he said, fills are regulated by the EPA under its pollution discharge permits.
Gov. Cecil Underwood and the coal industry said Haden's ruling would end all mining in West Virginia. DEP, the industry, the United Mine Workers and the Justice Department appealed the Haden decision to the 4th Circuit in Richmond, Va.
On Monday, the Justice Department and the industry were scheduled to file their initial legal briefs. A copy of the industry's brief was not available Monday evening, said Bill Raney, president of the West Virginia Coal Association.