- Associated Press - Tuesday, March 24, 2015

MONTGOMERY, Ala. (AP) - A federal court on Monday directed the U.S. Army Corps of Engineers to recalculate the environmental impact of a type of permit that allows coal mines to dump dredged materials from surface mining operations into streams and wetlands.

The 11th U.S. Circuit Court of Appeals said the revisit is needed after the Corps acknowledged that it underestimated how much water would be affected when coming to the conclusion that the permits would have minimal environmental impact.

However, the appellate court left the permits in place, saying that it couldn’t determine if the error was “truly significant.”

The decision to leave the permits was criticized by two environmental groups that took the Corps to court.

“This permit allows far too much damage to wetlands and streams along the river and its tributaries,” Nelson Brooke of Black Warrior Riverkeeper said in a statement. “The Black Warrior is home to many rare and important aquatic species and is used heavily for swimming, recreation, fishing, paddling, and boating. Protection of clean water and its upland sources are vital to downstream uses.”

Black Warrior Riverkeeper and Defenders of Wildlife sued the U.S. Army Corps of Engineers in 2013 over Nationwide Permit 21, a general permit that allows surface mining operations to discharge dredged materials into streams. The Corps of Engineers limited use of the permit in 2012 but grandfathered in existing operations as long as there was minimal adverse effects.

According to the groups that challenged the permit process, the Corps has approved around 80 total projects under the provision, and 41 of those are in Alabama’s Black Warrior river basin.

The appellate court said the Corps acknowledged ahead of oral arguments that it had miscalculated how much water would be impacted when determining there were minimal cumulative impacts.

“In light of the Corps’ admission, we are confident that the Corps has committed an error in its review, but we are unable to discern whether that error truly is significant,” the appellate judges wrote.

A lawyer representing the Alabama Coal Association said they were pleased with the ruling. He said the Corps essentially made a “paperwork” error and that it was being rectified.

“The permits are still in place. The court did not find any substantive problem with the permits that protect the environment,” said Adam Israel, an attorney with Balch and Bingham law firm which is representing the coal group.

A lawyer for the environmental groups said they felt strongly the permits should have been put on hold and are considering what to do next.

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