Fish & Wildlife memo on valley fills ignored
In June 2000, federal regulators proposed to rewrite a key water pollution rule to legalize mountaintop removal coal mining's valley fills.
Officials from the U.S. Environmental Protection Agency and the Corps of Engineers proposed the change to overturn a court decision that promised to curb mountaintop removal.
Experts from the Fish and Wildlife Service quickly criticized the proposed change as bad for the environment.
Biologists from the service's field offices in West Virginia and Pennsylvania shot off a memo to agency headquarters to oppose it.
"The improper regulation of valley fills by state and federal agencies has already resulted in substantial cumulative losses of streams in this region, in large part because past regulatory fixes have focused on permit processing, rather than protecting the nation's waters," said the memo.
The memo noted that a 1999 Fish and Wildlife report found that valley fills "had already destroyed nearly 900 miles of streams in Kentucky, Tennessee, West Virginia, Virginia and Pennsylvania."
"Surely there can be no more significant effect' on the aquatic environment than total elimination, yet we are not aware of any section 404 permit for a valley fill in West Virginia having been denied," said the memo, obtained under the federal Freedom of Information Act. "In fact, the Corps has not only authorized 900 miles of valley fill stream losses through the 404 program, they have managed to do so by finding the effects to be minimal, and authorizing them through" a more lenient, nationwide permit.
Officials at Fish and Wildlife headquarters in Washington didn't quite agree. They watered down the memo before they passed it on to their bosses at the Department of Interior.
In a memo to Interior, acting Fish and Wildlife director Marshall P. Jones simply suggested that, "the suitability of overburden and other coal wastes as fill material should be examined."
"Sometimes what the agency needs to be saying is different from what the field office believes the agency ought to be saying," Benjamin Tuggle, chief of the Fish and Wildlife Service's habitat conservation branch, explained later.
"We wanted to spell out the overall change as it would occur nationally," Tuggle said last week. "The field office was trying to apply this specifically to Appalachia."
Even the service headquarters' suggestion for more study, however, wasn't considered by EPA and Corps officials who were rewriting the fill rule.
That's because the Interior Department never forwarded Jones' memo to the Corps or EPA as part of the agencies' comment period on the change.
The only Interior comment that made its way into the public record was a short letter from the Bureau of Reclamation office in Yuma, Ariz., supporting the change, according to EPA officials and copy of the rulemaking docket.
On Friday, Interior Department officials said the department did in fact send the Corps a letter about the fill rule changes.
The department sent a letter to the Corps on Aug. 4, 2000 - three weeks after the comment period on the proposed rule ended. The comment period originally ended on June 19, but was extended for a month, to July 19, according to Federal Register notices.
In the Aug. 4 letter, Willie R. Taylor, director of environmental policy for Interior, said the department supported the proposed change.
Taylor wrote that Interior officials "generally agree" with the proposal to add to "the list of common fill activities the construction of solid waste landfills and the placement of coal mining overburden."
Taylor did not mention the Fish and Wildlife Service's criticism of the fill rule changes.
Another agency within the Interior Department, the federal Office of Surface Mining, has been a strong supporter of changing the fill rule to legalize valley fills.
During an interview in February, OSM Director Jeff Jarrett said that EPA and the Corps "need to get on with their rulemaking."
Today, a motion by a Kentucky citizens group to block new Corps permits for valley fills is pending before Chief U.S. District Judge Charles H. Haden II.
Both sides have briefed that motion, filed by lawyers for Kentuckians for the Commonwealth. The matter is ripe for a decision by the judge.
In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal reserves. Leftover rock and dirt is shoved into nearby valleys, burying streams.
Historically, the Corps has authorized these valley fills through "dredge-and-fill" permits. Section 404 of the federal Clean Water Act allows the Corps to issue such permits to bury streams and wetlands with material that is dredged from stream bottoms, or with "fill material."
In 2000 alone, the Corps approved permits that would bury more than 80 miles of streams in Southern West Virginia and Eastern Kentucky, agency records show.
In 1998, the West Virginia Highlands Conservancy filed a federal court lawsuit to challenge the Corps' permitting of valley fills.
Among other things, the suit alleged that dirt and rock from mountaintop removal mines is really "waste," not fill material. They cited a 1989 ruling to that effect by U.S. District Judge John T. Copenhaver.
Under Corps' rules, 404 permits are allowed only for material that is used "for the primary purpose of replacing an aquatic area with dry land or changing the bottom elevation of a water body." Those permits are not allowed for "any pollutant discharged into the water primarily to dispose of waste."
In December 1998, the Conservancy dropped its allegations against the Corps. In exchange, the agency and other federal regulators promised to perform a detailed study of mountaintop removal's environmental effects. That study was supposed to be finished within two years. It is now more than a year overdue.
But in ruling on related mountaintop removal issues, Haden in October 1999 addressed the 404-permit issue anyway.
The judge said that the Conservancy's original argument was right: Valley fills are waste piles, and the Corps cannot authorize them under dredge-and-fill permits. Because he had not been asked to do so, Haden did not issue an injunction to block future Corps' permits.
Sen. Robert C. Byrd, D-W.Va., tried unsuccessfully to pass legislation to overturn Haden's ruling.
In April 2000, the Clinton administration proposed to rewrite the fill rules to nullify the Haden decision. After receiving 17,000 public comments against the change, the Clinton administration never finalized it.
In April 2001, the U.S. 4th Circuit Court of Appeals overturned Haden's decision. But the appeals court never addressed the substance of his ruling. Instead, the appeals court said that the issue belonged in state court, rather than before a federal judge. By the time Haden ruled, the Corps had been dismissed from the case as part of the Conservancy's settlement. The only remaining defendant was the state Department of Environmental Protection.
Last August, Kentuckians for the Commonwealth filed a similar lawsuit against the Corps. This time, because a federal agency is the defendant, the case doesn't face the same jurisdictional problems.
The new case focuses on a mining permit application that, if approved by the Corps, would bury more than six miles of streams near Inez, Ky.
"Allowing this mine ... is one more example of the Corps' illegal past practice of authorizing the wholesale destruction of this region's irreplaceable resources without any scrutiny," Joe Lovett, a lawyer for the Kentucky citizens, said when the case was filed. "The Corps has overseen the elimination of hundreds of square miles of Appalachian forests and hundreds of miles of the region's streams."
Soon after the new court case was filed, the Bush administration EPA announced that it would finalize the fill rule changes by December 2001. That never happened. In February, Justice Department lawyers told Haden it would be finalized this month.
In a court brief filed March 18, U.S. Department of Justice lawyers argue that valley fills can be legally authorized under the Corps' permits. At the same time, they say that the fill material definition needs to be changed. The rule change, they argue, "does not alter current practice, but rather is intended to clarify what constitutes fill material'" under Section 404.
"There is no question that EPA and the Corps previously determined that overburden from surface coal mining activities is fill material' regulated by the Corps under [Clean Water Act] Section 404, have historically regulated such overburden as fill material' under CWA Section 404, and that the proposed Fill Rule is consistent with the agencies' longstanding interpretation and historic regulatory practice," the Justice Department brief said.
But according to internal government documents, the rule change is being finalized because the Justice Department lawyers believe that Haden will rule against them.
"It appears the DOJ may feel they have a loser in this suit," wrote Mike Robinson of the U.S. Office of Surface Mining, in an October 2001 memo.
Robinson wrote his memo to other OSM officials following inter-agency meetings on the case pending before Haden.
During those meetings, Bush administration officials discussed whether they should "speed up" finalization of the fill rule change.
"They feel that this action would moot the lawsuit, since the rule would state that overburden from coal mining is fill and not waste," Robinson wrote.
"I presume a district judge would give deference to the executive branch discretion in establishing a regulatory framework."
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.