Valley Fills      Stream killers. 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."

      Mitigation. Leave 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 .

      Endangered river. 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.

      Threatened habitat. 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 matter. 

     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.

     Corps' failures. 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.

     That individual 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.  

      Prior to 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/...

     Smoke-filled room. 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.

     Bragg consent 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.

     Courageous judge. 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 sense prevailed! 

     A permanent 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." 

      And, through 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!   

     Byrd droppings. 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.

      Byrd's tactic, 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.

     OVEC organized 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 to him.

     Jobs-taxes 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.

     Bi-Federal. 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."

     Helped. Judge 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].

     Hurt. 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 redefined authority.

     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.

     Ideological 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 mighty accomplishment.

  
Last updated on Tuesday, September 4, 2001