By Ken Ward Jr.
Do timber companies need flat land in order to make money cutting down trees? Should West Virginia coal operators be able to leave mountaintop removal mine sites leveled for the loggers?
The U.S. Office of Surface Mining can't seem to decide.
On one hand, OSM said clearly that commercial timbering does not require flat land. On the other hand, the agency ruled that West Virginia regulators can allow mountaintop removal mines to flatten land if the flat land is needed for future logging.
Mountaintop removal mining is supposed to be permitted only if coal companies propose specific plans to develop the land they flatten.
Generally, the 1977 Surface Mining Control and Reclamation Act requires all strip mines to be reclaimed to their approximate original contour. Mine operators can ignore that, and flatten out the land, if they propose to build factories, schools or public facilities on mined land.
Under federal law, mountaintop removal is only allowed if permits contain development plans for one of five post-mining land uses: Industrial, commercial, agricultural, residential or public facilities.
But across Southern West Virginia, giant mountaintop removal mines are turning tens of thousands of acres of rugged hills and hollows into flat pastures or rolling hayfields.
As the controversy grows over the future of those mined lands, more mountaintop removal mine operators are turning to another questionable post-mining land use: Commercial woodlands.
More than 70 mountaintop removal permits issued by the state since 1970 included only three that proposed commercial woodlands as their post-mining land use. Those three permits covered a total of 1,487 acres, or 4 percent of the total area of all the permits reviewed.
Another 18 of those permits proposed a post-mining land use of "forest land," a land use that federal rules don't allow for mountaintop removal mines. Those 18 permits covered a total of more than 8,300 acres, or 13 square miles.
As of July 1, there were 11 mountaintop removal permits pending before the state Division of Environmental Protection's Office of Mining and Reclamation.
Two of those permits proposed commercial woodlands as a post-mining land use.
Those two permits covered a total of 3,334 acres, or one-fifth of the area covered by all 11 pending permits. One pending permit, covering about 1,200 acres, proposes a post-mining land use of forest land, according to DEP records.
When OSM wrote its original regulations for the federal strip mining law in 1979, the agency was asked by industry officials to allow logging - or silviculture, which is the science of growing trees as a commercial crop - as a mountaintop removal post-mining land use.
"Silviculture can be accomplished on a wide range of slopes and does not require flat or rolling terrain," OSM said in a March 1979 Federal Register notice.
About 18 months later, in October 1980, West Virginia regulators petitioned OSM to have commercial woodland added to the list of post-mining land uses allowed for the state's mountaintop removal mining operations.
Again, OSM refused, citing its earlier decision on silviculture.
Federal regulators said that if West Virginia wanted to add woodlands as a mountaintop removal post-mining land use, state officials had to prove flat land was needed for timbering.
Three months later, in December 1980, West Virginia regulators tried to do just that.
State Deputy Attorney General Dennis M. Abrams sent OSM a report on the issue from then-state Forester Asher W. Kelly Jr. Kelly's two-page memo, however, was far from a ringing endorsement.
"It is generally recognized that road building and skidding costs are lower for level ground than on sloping ground," Kelly wrote. "However, potential down time exists because of the difficulty in draining roads on flat land. The cost of managing and operating tracts on both sites are nearly equal."
Kelly also wrote, "By far, the most important advantage of commercial woodland operations on flat land is the reduced danger of erosion and sedimentation.
"The economic advantages are not dramatically different between flat and sloping land," Kelly added. "However, careful preplanning at the outset could result in significant savings during management and harvest phases on areas resulting from mountaintop removal."
Environmentalists urged OSM not to approve the change.
"Operators do not need flat land to grow trees," a group called Citizens for Environmental Protection said in written comments.
"West Virginia does not need additional "woodlands." The risk of massive slides and uncorrectable pollution problems will be with us for the next 100 years unless this provision is changed."
Just three weeks later, OSM approved the change.
In a Jan. 21, 1981, Federal Register notice, OSM wrote that, "although there would be no across-the-board need for flat areas for silviculture, there might in a specific case be special circumstances which would make flat land essential."
Mountaintop removal permits approved by the state, however, contain little in the way of site-specific proof that flat land is essential for the timbering post-mining land uses those permits propose.
Most of the permits contain boilerplate statements. These concede that the proposed post-mining land use "is not substantially different from the pre-mining land use," but state that "the flat or gently rolling terrain will enhance stability of the land surface and greatly facilitate timber harvest by eliminating the need for hillside roads with their associated cost and environmental damage."
None of the permits for forest land or commercial woodlands post-mining land use contained any site-specific economic data to show that flat land was needed.
Privately, OSM officials say they never should have allowed West Virginia to expand its rules to include commercial woodland as a mountaintop removal post-mining land use.
Publicly, OSM Charleston field office Director Roger Calhoun says he has no plans to do anything about it.
"It's not an issue that we're currently planning to look at," Calhoun said. "It was approved as part of the state program, and there was no litigation.
"If it was causing some global problem, we might go back and look at it."
To contact staff writer Ken Ward Jr., call 348-1702.
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