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EPA defends water quality guidance in appeal

CHARLESTON, W.Va. -- The Obama administration argued Tuesday that the U.S. Environmental Protection Agency was right when it issued new water quality guidance intended to reduce the damage to streams and aquatic life from mountaintop removal mining.

Department of Justice lawyers, representing EPA, also said in a new legal brief that it made "perfect sense" for the agency to coordinate its work with other agencies as EPA officials asserted a greater role in reviewing new proposals for large-scale surface mines in Appalachia.

In its legal filing, EPA argues agency officials rightly acted to try to reduce mountaintop removal's impacts in response to "a substantial and growing body of peer-reviewed scientific research" that mining was damaging water quality and aquatic life.

Government lawyers filed their brief in the U.S. Circuit Court of Appeals for the District of Columbia, where EPA is challenging a lower court decision that threw out its water quality guidance and an "enhanced coordination process" for reviewing new permits.

In separate opinions issued in 2011 and 2012, U.S. District Judge Reggie B. Walton in Washington, D.C., had ruled that EPA overstepped its Clean Water Act authority with its plan to try to crack down on mountaintop removal. Coal industry groups, along with the West Virginia Department of Environmental Protection, had filed suit to block EPA's crackdown.

The EPA guidance in question aimed for tougher permit application reviews, including more detailed studies of whether mining impacts can be avoided or reduced, new testing of potential toxic impacts of mining discharges, and recommended limits on increases in pollution-related electrical conductivity, which agency officials said was a crucial measure of water quality.

Walton concluded, though, that EPA has "only a limited role" in such matters once states obtain federal permission to run their own water pollution permitting agencies.

EPA's guidance regarding electrical conductivity remains highly controversial, with a long list of papers challenging the agency's science being presented this week in Charleston during a symposium featuring the initial results of a $15 million industry-funded research project started in large part to examine the guidance.

For example, one paper presented by researchers at West Virginia University and the University of British Columbia reporting finding "no evidence that electrical conductivity" at thresholds suggested by EPA "is a reliable predictor" of the health of aquatic life.

But in its new legal filing, EPA points out that an agency scientific advisory panel concluded the agency "presents a convincing case" for linking electrical conductivity to stream health.

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


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