This news story originally provided by The Charleston Gazette

Fills burying valuable streams, judge told

Georgia ecologist testifies in 2nd day of trial over restricting mountaintop removal

By Ken Ward Jr.
Staff writer

HUNTINGTON — Coal operators are destroying a vital piece of Appalachia’s ecology when they bury small headwaters streams, a federal judge was told Wednesday.

Bruce Wallace, an ecologist from the University of Georgia, gave U.S. District Judge Robert C. Chambers a tutorial in how these small creeks feed larger streams and rivers.

Wallace said it was “pretty astounding” that Massey Energy plans to bury more than 12 miles of such streams if four new mountaintop removal permits are approved.

“This is a dangerous signal to me, certainly,” Wallace said. “The thing I would worry about as a scientist is, what are the long-term consequences?

“The streams that are lost are perpetually lost,” Wallace said. “There’s no correcting for that.”

Wallace testified Wednesday in the second day of trial in the latest legal effort to more strictly regulate mountaintop removal mining.

In the case, the Ohio Valley Environmental Coalition and two other groups argue that the U.S. Army Corps of Engineers should be forced to conduct lengthy environmental-impact statements on each of the Massey mine proposals.

Chambers will rule specifically about those four Massey permits. But his decision could have a much broader impact on the state’s coal industry. Company officials worry that it would take them too long and cost them too much money to obtain permits if the corps is require do to the more detailed studies.

“The outcome of this case is very critical to the coal industry,” said Allyn Turner, a former top state water-pollution regulator who is representing the West Virginia Coal Association, which intervened in the case.

The case is one of two mountaintop removal lawsuits pending in federal court in Southern West Virginia.

In the other, U.S. District Judge Joseph R. Goodwin is considering whether to block the corps from authorizing new valley fills through a streamlined Clean Water Act permit process.

Goodwin previously issued such an order, but was overturned on appeal. Now, lawyers for environmental groups have asked him to reconsider, based on other legal arguments on which the judge did not previously rule.

Environmental groups want Chambers to force the corps to perform more thorough studies before approving fills through the agency’s traditional, individual-permit process.

Under federal law, the corps is required to perform such a study, called an environmental-impact statement, or EIS, “for every major federal action significantly affecting the quality of the human environment.”

Corps lawyer Cynthia Morris told Chambers agency officials believe that Massey’s proposed valley fills “won’t cause significant adverse effects on human health and the environment.” Environmental groups, she told the judge, are spreading a “myth that these projects are damaging the environment.”

During opening arguments on Tuesday, Massey lawyer Bob McLusky said most coal companies locate valley fills only in smaller intermittent and ephemeral streams, which contain water only part of the year.

In his testimony Wednesday, Wallace explained that those smaller streams are a key part of the region’s water system.

Wallace said bugs and other aquatic life in headwater streams eat leaves and other matter. Larger bugs, fish and other aquatic life downstream feed off these creatures and their waste, Wallace said.

When it approved the Massey permits, Wallace said, the corps wrongly said larger, perennial streams — untouched by the valley fills — are more valuable ecologically than the smaller creeks.

“I don’t know why you would put a greater value on a perennial stream than an intermittent one,” Wallace said. “In fact, a lot of scientists I know would do just the opposite.”

Wallace said corps officials did not attempt to measure the ecological functions served by the headwaters streams being buried. They should have done so, he said.

“It will give me some idea of how that headwater stream is functioning, and, before I bury it, I will know what I’m losing and what effect the loss of those headwater streams will have on downstream areas,” Wallace said. “As it is right now, I don’t know what I’m losing.”

Wallace also said corps officials did not consider the “witch’s brew” of toxic chemicals that flow out of mining valley fills.

Agency officials, Wallace said, examined impacts on aquatic life by comparing broad families of insects, rather than looking at changes in more specific species. A more specific study, he said, shows that “more of the fill sites are impaired.”

The trial is scheduled to continue today and Friday in U.S. District Court in Huntington. Once testimony has concluded, the parties will have an opportunity to file legal briefs before Chambers rules.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.