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EPA mandates mine permits examine stream functions

Keep up with coal on the Gazette's Coal Tattoo blog. 

CHARLESTON, W.Va. -- Regulators will more closely examine the potential impacts of mountaintop-removal proposals on the important ecological functions of headwater streams that are often buried by such mining operations, according to new guidance issued by the Obama administration.

Late Friday, the U.S. Environmental Protection Agency and the Army Corps of Engineers issued more new guidance as part of the Obama administration's announced plan to "take unprecedented steps" to reduce the impacts of surface mining in the Appalachian coalfields.

The guidance responds to issues raised in a federal court lawsuit -- and in recent scientific studies -- that rules for mining permits do not consider impacts of "stream function."

Under the guidance, regulators reviewing Clean Water Act permit applications for mining companies will now determine what impacts proposed valley fills will have on stream structure and function before approving those applications.

"Scientifically sound and consistent evaluation of high-gradient streams in the coalfields of Central Appalachia is a priority for making permit decisions," the new EPA-Corps guidance said.

For years, mining companies have been permitted to bury hundreds of miles of streams with waste rock and dirt and then replace those streams with rock-lined ditches. Scientists believe this practice replaces the "structure" of streams, but does not replace important "functions" such as broken down organic matter and bugs that provide food that moves up the aquatic food chain.

In March 2007, U.S. District Judge Robert C. Chambers threw out the Corps' approval of four Massey Energy permits, in part because agency officials had not examined the potential loss of stream function. Chambers cited an "alarming cumulative stream loss" and said permit reviews needed to be more thorough.

That ruling was overturned by the 4th U.S. Circuit Court of Appeals. Environmental groups, including Coal River Mountain Watch, the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy were pursuing an appeal to the U.S. Supreme Court.

In a prepared statement, Earthjustice, which represented the citizen groups, said that with the new guidance "the agencies have corrected the problem that was presented in the Fourth Circuit case and the Supreme Court petition."

"We applaud the Corps and the EPA for recognizing what the law and science required: The protection of streams and communities," said Earthjustice lawyer Steve Roady. "We will continue to urge these agencies to take meaningful action to guarantee that our streams are no longer the dumping grounds for mining waste."

Carol Raulston, spokeswoman for the National Mining Association, declined comment on Monday, saying her group was still reviewing the new guidance.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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