Groups sue Bush administration on coal mining law

The Southern Environmental Law Center and National Parks Conservation Association are filing suit today in federal court in Washington D.C. challenging a rule issued last month by the Bush Administration that severely limits the government's ability to protect Appalachian streams from the ravages of mountaintop removal and other destructive forms of surface mining for coal.

The complaint seeks to block the changes in the Stream Buffer Zone Rule which gut the original rule's water quality protections and effectively legalize the destruction of streams in the region's coalfields. The U.S. Environmental Protection Agency and the Office of Surface Mining are named in the suit. Among other things, the rule change:

• Exempts valley fills – dumping dirt and rubble from mountaintop blasting into nearby valleys – and other mining activities from the 100-foot protective buffer zone so long as the operator minimizes environmental damage “to the extent possible.”
• Eliminates the requirement that regulators must first determine that coal mining activities in or next to streams would not harm water quality or quantity.

“The new rule basically allows the bulldozers and backhoes to tear up or pollute miles and miles of headwater streams in the mountains that are the source of drinking water for thousands of people and habitat for vital species,” said SELC Senior Attorney Deborah Murray. The change in the Stream Buffer Zone rule will have significant negative impacts on water quality and stream health by condoning mining operations that have already buried at least 724 stream miles and damaged at least 484 more miles in Virginia, Tennessee, Kentucky and West Virginia.

The OSM, in issuing the rule change, and the EPA in concurring, failed to consult with the U.S. Fish and Wildlife Service about potential impacts to threatened and endangered species and critical habitat, as required by the Endangered Species Act. Instead, OSM relied on a 1996 “biological opinion” which said that no coal mining operation anywhere in the U.S. would ever harm threatened or endangered species listed then, or in the future – as long as OSM complied with the requirements of the Surface Mining and Control Act, including the former 1983 Stream Buffer Zone rule.

National Parks Conservation Association Program Analyst Bart Melton said, “The Bush Administration has undermined protections for national parklands in Tennessee and Kentucky. Already, mining operations are threatening endangered fish and mussel species found only in the Big South Fork National River. If this shortsighted rule change stands, wildlife in our national parks, including species found nowhere else in the world, could be lost forever.”

The rule change completely undercuts the basis for the 1996 biological opinion. Moreover, the biological opinion itself is otherwise unlawful, Murray said. SELC, the National Parks Conservation Association and other groups petitioned the federal government last year to revoke the “biological opinion” and return to required consultation between the OSM and wildlife service for coal mining activities.

“It's a closed-loop system – the agencies fail to enforce the stream protection rule, the coal industry takes advantage of that, the agency then changes the rule to allow the harmful mining activities to continue, and rely on an illegal policy to do so.” Murray said.

In December, several other conservation groups also filed suit in D.C. District Court challenging the Stream Buffer Zone Rule under the Clean Water Act, National Environmental Policy Act, and other claims.

SELC's lawsuit focuses on endangered species protections. While its challenge of the federal stream rule applies nationally, SELC and NPCA have focused much of their work on this issue in southwestern Virginia and northeastern Tennessee, in the watersheds of the Clinch, Powell and the Big South Fork of the Cumberland rivers.

• The Clinch River is home to at least 126 native fish species and at least 44 species of mussels. According to The Nature Conservancy, the Clinch has the highest number of globally imperiled and vulnerable freshwater species in the U.S. The river is home to 18 federally listed fish and mussels. There are 31 active coal mines in the upper Clinch River watershed in Virginia.
• The Powell River was once home to at least 41 species of mussels and 90 species of fish. Of those that remain, two fish species and seven mussel species are federally listed. There are 69 active mine operations in the upper Powell River watershed in Virginia.
• Recent surveys in the Big South Fork of the Cumberland found 68 fish species and 24 mussel species. Six of its mussel species are federally listed as endangered, and in the spring of 2008, two additional endangered mussel species and two candidate species were re-introduced, for a total of 10 protected mussel species. The river system also supports at least 3 species of federally protected fish. There are 10 active coal mine operations in Tennessee's New River watershed, which flows into the Big South Fork National River and Recreation Area.