Lawyers for the citizens alleged the state DEP and the U.S. Army Corps of Engineers had illegally approved dozens of mountaintop removal permits. They said the permits did not require companies to protect streams or properly reclaim mined land. Most of the claims in the suit were settled. But lawyers could not resolve a dispute over a rule that requires 100- foot buffer zones between mining activities and streams. Citizen lawyers argued that the buffer zone rule outlawed valley fills in perennial and intermittent streams.
Perennial streams flow all year.
Intermittent streams flow part of the year. Citizen lawyers said that the buffer zone rule allowed fills only in smaller, ephemeral streams, which flow only when it rains. Lawyers for DEP and the coal industry said that the buffer zone rule didn't apply to valley fills. It couldn't possibly apply, they said. If it did, they said, all coal mining would be outlawed.