If that sounds to you like the plot of a scary movie, you
are correct. Mountaintop removal kills streams by creating
valley fills. Who will stop the killing? And how?
This true-life drama has
unfolded in the mountains and valleys, in the political
arena, and in the courts. It is a long story set out below.
Spoil. During mountaintop
removal of coal, huge amounts of earth and rock are removed.
Much of this "spoil," which swells, is dumped
over the hillside and into the valleys below; hence the
term "valley fill." There are two
kinds of materials disposed of in this manner: "overburden"
taken off the mountain tops and "coal processing waste."
it to the coal industry toadies in the West Virginia Legislature
to turn valley fills into a political issue. Early in 1998
legislation was enacted and signed by Governor Underwood
relating to required "mitigation" of
valley fill damage to streams. Under this concept coal
companies can build their own mitigation projects or pay
money to the state, which is the more commonly used method
of the two. Prior to the 1998 statute, mitigation was required
for filling streams with drainage areas of at least 250
acres and the coal company paid the state $200,000 per acre.
The 1998 change increased
the threshold to 450 acres and gave the DEP Director discretion
to impose a mitigation fee "up to" $225,000. The
coal industry was split on support of the bill with some,
such as Arch Coal, fearing long delays if federal permit-by-permit
review resulted. The statute ignited a firestorm
of controversy and led to intervention by the
federal EPA and the U.S. Department of the Interior's Fish
and Wildlife Service in the permit process for mountaintop
removal and valley fill. [Note:
See Mountains section of this web site.] In
early 1999 the state legislature backtracked and reverted
to the 250-acre mitigation threshold. [WV Code sec. 22-11-7a].
Gone forever. By
September 1998 valley fills in central Appalachia had filled
about 900 miles of streams, almost equal
to the length of the Ohio River (981 miles). A report
by the U. S. Fish and Wildlife Service studied the issue
and examined hundreds of permit files. West Virginia (470
miles filled or permitted to be filled) and Kentucky (355
miles permitted to be filled) are the leaders in filling
streams. The report highlighted losses
from valley fills: aquatic habitat, terrestrial
wildlife habitat, deciduous hardwood forest, herbaceous
plants, ecosystem wide effects, watershed wide effects.
Since 1986 in West Virginia
the miles of streams buried or permitted to be buried are
at least as follows: Little Coal - 175.3; Guyandotte
- 109.0; Tug Fork - 67.7; Big Coal - 46.8; Twelve Pole -
40.3; and Mud - 28.2. The Mud River watershed is 250 square
miles and illustrates the impacts of valley fills in a single
watershed. The numbers: valley fills have filled
29 % of the upper 23 square miles of drainage area, and
39 % of the streams within the 16.5 square-miles area
of the Mud upstream.
A dramatic exhibit
of the destruction of West Virginia streams has been Carol
Jackson's portable cemetery of about 1,000 tombstones, each
inscribed with the name of a dead stream. The Washington
Post displayed a front-page photograph of the cemetery
near Congress in Fall 1999.
Other visuals and information
appear in web sites such as: http://www.saveourwaters.org
In the Coal River watershed, stretching from St.
Albans on the Kanawha River through the southern coal fields
to Raleigh County, since 1980, at least 239 strip mines
have been permitted. In 1999 American Rivers gave
the Coal River watershed the ominous designation of one
of America's ten most endangered rivers.
A July 31, 1998, U. S. Fish and Wildlife Service
report on NPDES Draft Permit No. WV1017021 for
Hobet Mining, Inc.'s Spruce No. 1 Surface Mine in Logan
county is revealing. The mine, if permitted, will
affect 3,113 acres and will be the largest surface mine
ever constructed in the state. Mountaintop removal
and valley fill are an integral part of the mining process.
The mine will affect the headwaters of Spruce Fork
of the Little Coal River. "Four stream valleys
--Seng Camp Branch, Pigeonroost Branch, Oldhouse Branch,
and White Oak Branch -- all tributaries to Spruce Fork --
will be filled with overburden." Biologists visited
three of these valleys "to evaluate the quality of
terrestrial and aquatic habitats that would be directly
affected by the proposed project."
All three valleys
to be filled were found to be "narrow, deep, and heavily
forested." "Large amounts" of salamanders
were found to be present along stream channels. It
is expected that "the combination of forested, spring
seep, and stream habitats would support numerous migratory
bird, amphibian, small mammal, and game species...."
The biologists were concerned that potential summer habitat
(roost trees) of the Indiana bat-- an endangered species
in West Virginia -- would be affected by the mining.
Stream inspection at Pigeonroost
Branch found benthic invertebrates, which exist
at the bottom of waters, "as far into the headwaters
as we could walk...." These included crayfish,
"three families of mayfly, six of stonefly, and four
of caddisfly...." Inspections of the other two
streams produced similar results. As to all of the
streams, which were considered to be perennial, the "variety
of benthic invertebrates is indicative of good water quality
and healthy aquatic ecosystems...."
The U. S. Fish and Wildlife's
primary conclusion was: "Based upon the results
of our field investigations, which have documented that
the streams proposed to be filled for this project support
aquatic life and wildlife uses, the Service concludes that
the proposed valley fills will in fact violate both the
West Virginia Water Quality Standards and
the Clean Water Act." Procedurally,
the report recommended that the EPA file a specific objection
to the mining permit and "use its authorities to withhold
issuance of this permit until the proposed project and its
discharges are modified to avoid disposal of waste material
in waters of the United States."
Lawyers to the rescue: the
Bragg case. Mountaintop removal and valley
fill are most vulnerable legally under the Clean Water Act
and related provisions within the federal and state surface
mining acts. Issues arising under these statutes were the
subject of litigation against federal regulators
and the state's DEP in the U. S. District Court for the
Southern District of West Virginia at Charleston. In short
it is called the Bragg case. A copy
of the July 1998 complaint is at: http://www.tlpj.org/...
A similar, but narrower, lawsuit in Kentucky arose in August
2001. The plaintiff is Kentuckians for the Commonwealth.
Affected residents and the
West Virginia Highlands Conservancy alleged in their
complaint that: mining permits regularly are issued
without required NPDES permits thereby allowing pollutants,
including mining waste, to be discharged into navigable
waters [creating valley fills] from point sources; the U.
S. Army Corps of Engineers has no authority to issue
dredge-and-fill permits for valley fills because mining
spoil is waste material, not dredge-and-fill material
subject to the Corps' authority under Clean Water Act section
404; regularly issued mining permits allow valley
fills which fill intermittent and perennial streams with
mining spoil contrary to the federal 100-foot stream
buffer requirement [30 CFR sec. 816.57] and
related state buffer zone requirement [38 CSR sec. 2-5.2(a)],
and thus defeat the West Virginia anti-degradation policy
as to streams [46 CSR sec 1-4].
Other assertions included
failures by WVDEP regarding water quality certifications,
restoring mined land to proper contour and postmining use,
hydrologic plans, amending the state law to comply with
federal law, and inadequate review and permitting processes.
Streams defined. There
are three kinds of streams at issue in
valley fills. A perennial stream flows continuously
during the calendar year and receives water from groundwater
discharges and surface runoff. An intermittent
stream acts like a perennial stream part of the time
and like an emphemeral stream part of the time. It
drains a watershed of at least one square mile or is below
the watertable for at least some of the year. An ephemeral
stream flows only in direct response to precipitation
in the immediate watershed or indirect response to the melting
of snow or ice. It has a channel bottom which always is
above the local water table, so it does not receive flow
from groundwater discharges.
Buffer zone. Perennial
and intermittent streams are protected by the buffer
zone rule. Absent approval by the WVDEP Director, "no
land within 100 feet (100') of an intermittent or perennial
stream shall be disturbed by surface mining operations..."
38 CSR sec. 2-5.2(a).
Operations within the buffer
zone can be authorized only upon the Director's finding
that surface mining activities: "will not adversely
affect the normal flow and gradient of the stream, adversely
affect fish migration or related environmental values, materially
damage the water quantity or quality of the stream and will
not cause or contribute to violations of applicable State
or Federal water quality standards." Unfortunately
in July 2000 WVDEP started a rule-making process to weaken
the buffer zone rule. Because the changes must pass
through various legal hoops their approval and implementation
are a year or more down the road, if at all.
The lawsuit was litigated with
vigor by all parties, including intervenors from the coal
industry and the United Mine Workers of America. Both the
coal industry and the union resisted citizens' efforts at
reform. The presiding judge was Charles H. Haden, II, Chief
Judge, an astute and politically savvy jurist.
Federal EIS. In December
1998 a partial settlement was reached between
federal regulators and the plaintiffs and
was approved by the court. Regulators agreed
to have a unified federal policy that coordinates mine
permit activities with the EPA, U.S. Army Corps of Engineers,
U.S. Fish and Wildlife Service, and OSM. Through 1999 and
2,000 they were to prepare a comprehensive Environmental
Impact Statement (EIS) with the goal of adjusting
policies to minimize the adverse impacts of this form of
coal mining. Plaintiffs' expert(s) were to help prepare
the EIS. But by late 2001 the EIS had not been completed,
although EPA did consider limiting the size of valley fills.
In the meantime the Corps
stopped its routine issuance of nationwide permits for valley
fills.[See "Corps' failures" below]. For mines
which fill streams with watersheds of 250 acres or
more, a complete environmental assessment
will occur, meaning that the routine approval
of permits will cease. For mines under the
250-acre threshhold, the Corps will issue or deny permits
with greater scrutiny than was used previously. Plaintiffs
agreed not to contest the Corps' authority to regulate "fill
material." The settlement agreement is at: http://www.emlf.org/...
One explanatory press release is at: http://www.tlpj.org/...
However, in Summer 2001 the Corps appeared to back off its
commitment to scrutinize the 250-acre or larger mine site
permits. The Corps asserts that its new rule only applies
to mines in southern West Virginia, and not nationally.
Mine permit enjoined.
One notable exception to the newly intensified federal
scrutiny announced by the settlement was EPA's lifting of
its objections to the water quality permit for Arch Coal's
(Hobet Mining, Inc.) Spruce #1 mine in Logan County.
According to the EPA the permit "was reduced from a
13 year operation to a 5-year project; two of the five valleys
will not be filled at all and two other fills were substantially
reduced in size; and any future work at the site will have
to go through a new permit process with a complete environment
assessment and public involvement." The total
size of valley fills on the permit was reduced from 2,900
acres to 1,700 acres, but actually this is the size of a
first stage, and later permission for more acreage may be
sought.. Because the plaintiffs did not agree with this
approach, it was not part of the deal and plaintiffs amended
their complaint and continue to litigate this particular
On March 3,
1999, Chief Judge Chuck Haden issued a preliminary
injunction halting further action by
DEP (issuing permits)and Arch Coal (pre-construction or
mining activities) and staying any permits previously issued,
until the case is resolved on its merits. The decision
stirred up much controversy. Of great importance
was the court's recognition of the irreparable effects upon
the environment of mountaintop removal and valley fill.
The decision is at: http://www.tlpj.org/...
In June 1999
the Corps sought to remove itself from this part of the
litigation because Arch Coal had "virtually no chance"
of winning. The Corps told Arch Coal that a nationwide permit,
which Arch Coal had sought, would not be allowed and a stringent
individual permit must be pursued by Arch Coal.
In May 2001
the Corps held a hearing on its draft EIS for Spruce #1.
Part of the legal maneuvering as to valley fills relates
to the role of the U. S. Army Corps of
Engineers whose district office is in Huntington.
Generally, under the Clean Water Act, any discharge of dredge-and-fill
material from a point source into the waters of the U.S.
is prohibited. The Corps, however, can issue individual
section 404 dredge-and-fill permits which undergo regulatory
scrutiny before issuance.
permit is unnecessary if the activity, e.g. valley
fills, is encompassed by a Corps nationwide permit
or regional permit. This type of permit is "designed
to regulate with little, if any, delay or paperwork certain
activities having minimal impacts."
33 CFR sec. 330.1(b). Can anyone in good conscience
say that valley fills have minimal impacts? Without
a nationwide dredge-and-fill permit coal companies must
obtain individual section 404 permits. The application
for an individual permit triggers review under these
federal statutes -- NEPA, ESA, and FWCA. The review is slow.
the December 1998 settlement agreement the Corps routinely
approved nationwide permits for valley fills. In other
words, the Corps of Engineers was asleep at the regulatory
wheel. For more details see http://www.emlf.org/...
Behind the scenes and beyond public disclosure the powers
that be were brewing trouble. In June 1999 the federal
Office of Surface Mining publicly stated that the buffer
zone requirement protecting streams from intrusion by valley
fills did not apply to valley fills. Sensing a sneaky administrative
fiat the Bragg plaintiffs sued the Secretary of
the Interior (OSM's boss) in federal court in the District
of Columbia alleging unlawful rule making. The agency's
bluff was called.
decree. Back to the Bragg case. In July 1999
a proposed consent decree was lodged with
the court. The order proposed by the parties settled
all of the remaining disputed issues except
for interpretation of the buffer zone requirement.
The court called for public comment and established a web
site at http://www.fedcourtwvsd.com
. Orders of the court in the Bragg case appear
in that web site. The proposed and since-modified consent
decree stirred up much debate in the environmental community
and among many other citizens of West Virginia.
MOU sneak attack.
In August 1999 in an attempted fait accompli WVDEP,
EPA, OSM, and the Corps (USACE) entered into a Memorandum
of Understanding (MOU). The MOU allowed:
valley fills to be constructed in both intermittent and
perennial streams; and authorization for buffer zones through
compliance with Clean Water Act requirements necessary to
carry out section 404 dredge-and-fill activities.
In other words, a complete capitulation to the coal industry.
Of note is the fact that the U.S. Fish and Wildlife Service
did not sign the MOU.
October 20, 1999, was a red-letter day for everyone who
has fought for enforcement of existing environmental laws
to protect the mountains and streams of West Virginia from
mountaintop removal and valley fill.
In an erudite
opinion Judge Haden held that the WVDEP director, under
the buffer zone rule, had "to
deny variances for valley fills in intermittent and perennial
streams because they necessarily adversely affect stream
flow, stream gradient, fish migration, related environmental
values, water quality and quantity, and violate state and
federal water quality standards." Common
injunction was granted against the director forbidding
him "from further violations of the nondiscretionary
duties discussed above and from approving any further surface
mining permits under current law that would authorize placement
of excess spoil in intermittent and perennial streams
for the primary purpose of waste disposal."
a lengthy analysis, the court held that "MOU is
without force or effect on the extant buffer zone requirement."
In summary, Judge Haden's written mrmorandum opinion and
order was a tremendous victory!
The political spectacle that followed the court's
decision was something to behold. Coal mine layoffs were
announced. Republican Governor Underwood's minions immediately
stopped issuing surface mining permits, disallowed
valley fills, and predicted doom as they ordered a statewide
freeze on state government hiring, travel, and capital spending.
Not to be outdone, Democrats chastised Underwood, who had
been allying himself with Democratic coal miners and their
union for months, for creating a false crisis. Democrats,
wishing to preseve their solid political base in southern
West Virginia, predicted the end of the mining industry
unless Congress fixed the crisis.
Enter you know
who -- U.S. Senator Robert C. Byrd and the other Democratic
members of the state's congressional delegation. Judge Haden,
keen pol that he is and on his own initiative, on October
29th stayed his order. Yet, the die was cast; the
political saga had to march on to a conclusion.
in the waning days of a Fall 1999 congressional session,
was to attempt to undo Judge Haden's decision via enactment
of a rider to a spending bill. Unfortunately for Senator
Byrd, President Clinton previously had promised to veto
any environmental riders. Thus, the battle lines were
drawn: Senator Byrd and his political allies versus
the national environmental community and the White House.
rallies at the Capitol, the destroyed-streams-headstones
cemetery was on the Mall, and press conferences were
conducted. The drama played out in view
of the American public on
national television and in editorials of prominent newpapers,
almost all critical of Byrd's effort. Senator Byrd's rider
did not prevail. The drama reached its ultimate media exposure
when Mike Wallace devoted a 60 Minutes piece to mountaintop
removal and valley fill and Governor Underwood gave an embarrassing
performance when quizzed about coal barons' political contributions
report. Scared by the hysteria, state legislators
commissioned a study of the effects of valley fill restrictions
upon the economy of southern West Virginia. The bleak report,
which debuted in June 2000, was prepared by Marshall University's
Center for Business and Economic Research. The report is
flawed when it assumes: a ban on valley fills - which is
not the case; and restricted valley fill mining is not economically
feasible -- which is unproven. No doubt litigation will
have some adverse effects upon the coal industry and the
recipients of coal-produced dollars but more accurate assumptions
are necessary to assess the situation.
April 17, 2000, was a day of paradox -- a day when the federal
government giveth and taketh on its policies protecting
Appalachian streams from being filled with coal mining
waste. The Feds helped protection through its
in-court position accepting the buffer zone rule
and hurt protection with its in-court position on
coal mining waste and with its proposed regulation redefining
"waste material" and "discharge of fill material."
Haden's stayed-injunction was on appeal before the
United States Court of Appeals for the Fourth Circuit [Case
No. 99-2683]. The most significant matter on appeal was
thought to be the 100-foot buffer zone. Surprisingly,
in tacit rejection of their August 1999 MOU, in their brief
the Federales switched horses in mid-stream by embracing
Judge Haden's interpretation of the buffer zone rule,
that is, the rule "prohibits the burial of substantial
portions of intermittent and perennial streams beneath excess
mining spoil." [Brief for the Federal Appellants p.
2; the agencies are EPA, Interior (OSM), Army (USACE)].
The screams from the coal industry could be heard for hundreds
of miles. WVDEP floundered in doubt.
At the end
of May 2000 OSM promised permit issuing guidelines
eventually. [An aside: the Feds disagreed
with Judge Haden by concluding that there are "minor
spoil disposal activities that do not involve the filling
of stream segments" and so "may not inevitably
cause adverse environmental effects and therefore may be
appropriately approved under the buffer zone rule."
Thus, the Feds want the injunction narrowed].
In his decision Judge Haden held that the "Corps lacks
authority to authorize valley fills with the primary purpose
of waste disposal under [CWA] section 404..." With
that interpretation, he opined that there was no conflict
between the CWA and SMCRA's buffer zone rule. Judge Haden's
decision rested on the Corps' own definition of "fill
material" which excluded "any pollutant discharged
into the water primarily to dispose of waste...."
33 CFR sec. 323.2(e).
In the Fourth
Circuit the Feds' legal position is that this part of Judge
Haden's ruling is dictum, meaning a gratuitous holding
unnecessary to be made and having no binding effect. In
its brief the Feds mentioned their proposed rule changes
that redefine both "fill material" (and remove
the waste exception) and "discharge of fill material,"
so that no doubt is left: coal mining waste dumped into
valley fills would be regulated by the Corps under CWA section
404. Given the Corps' abominable record in regulating
valley fills under carte blanche nationwide permits for
years, one can only shudder at the prospect of giving it
The legal result
could have been: we could be left with a SMCRA buffer zone
regulation - to be enforced by WVDEP - which disallows
dumping of coal mining waste into perennial and intermittent
streams, and a CWA discharge-of-fill-material regulation
- to be enforced by the Corps of Engineers - which allows
dumping of coal mining waste into perennial and intermittent
streams. Federal schizophrenia.
opinion. Alas, the best laid plans went awry. In a 2001
ideological three-judge opinion, the Fourth Circuit overturned
Judge's Haden's opinion, not on the merits, but on
a bizarre interpretation of the Eleventh Amendment to the
U.S. Constitution. The Eleventh Amendment governs suits
by citizens against a state. The panel ruled the case belonged
in state court which would adjudicate state mining regulations.
It may well
be that the true failing of the plaintiffs' strategy in
Bragg was to include union mines in the purview of the lawsuit.
The UMWA opposed the plaintiff's positions vigorously. Nonetheless,
the Bragg settlement remans in force, which is a
Last updated on Tuesday, September 4, 2001