West Virginia Highlands Voice

DEP waiting to strongly enforce discharge limits

West Virginia Public Broadcasting
By Anna Sale
May 12, 2008

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Transcript

Anchor Lead: There’s a new front in the battle over mountaintop-removal mining in West Virginia. It’s over what’s called selenium.

Selenium is a naturally occurring element that does no harm in small amounts. The problem is when earth is disturbed with practices like mountaintop removal mining, and it builds up in water and then moves up the food chain.

At a lake in Lincoln County, a study links excessive selenium levels to deformities in fish. Anna Sale reports.

Sale: The Upper Mud River Reservoir was designed to be a fisherman’s destination when was built in the 1990s.And it is. On a recent Friday afternoon, fishing boats dotted the sprawling 300-acre lake in Lincoln County, and a handful of other fisherman dotted its banks.

David Brooks drove from Culloden in Cabell County. He comes here to fish a couple times a month.

Brooks: Because I like, there’s a lot of fish in the lake, and normally you can catch quite a few fish.

Sale: But a recent study shows there are problems with those fish. They have high levels of selenium. And some recently hatched fish in the reservoir are deformed–with curved spines and misshapen fins. Some even have two eyes on one side.

Dennis Lemly, a leading researcher on selenium and fish, warned in this report that it’s likely these deformities were caused by selenium poisoning, which in fish, can cause reproductive problems and even death.

Lemly’s report links that selenium poisoning to coal mining discharge. It was filed last month as part of an environmental lawsuit against Magnum Coal’s Hobet Mining, which runs a sprawling mountaintop removal site upstream that straddles Lincoln and Boone Counties.

Lemly concludes, “The Mud River ecosystem is on the brink of a major toxic event.”

That report got fisherman David Brooks attention when it was in the newspaper.

Brooks: Sure it concerns, it should concern anyone.

Sale: The Secretary of the state Department of Environmental Protection Randy Huffman says he’s also concerned about selenium in the Mud River. The DEP has been taking samples from the area to track the problem, but Huffman doesn’t agree with Lemly’s conclusions.

Huffman: He looked at part of the data we collected and made a very extreme statement, and that’s concerning.

Sale: That’s not to say that Huffman doesn’t believe mining is part of the problem, but he argues that old mines that have already been reclaimed and abandoned are big contributors.

But in their federal lawsuit, the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy say that Hobet Mining is discharging selenium above the legal limits. They say they’ve had more than 1,000 violations in the first three months of this year.

The focus on selenium discharges at mountaintop removal sites really started five years ago, when a federal study of mountaintop removal found excessive levels of the element in waterways downstream from the mining.

In turn, the state Department of Environmental Protection started putting limits on selenium in water discharge permits.

Initially, that encouraged environmentalists like the Highland Conservancy’s Cindy Rank.

Rank: I mean we were very happy when we started seeing selenium limits in permits. It’s like, that’s good, that’s good. Well, putting them in the permits and enforcing the permits are two different things.

Sale: The DEP has been issuing what are called compliance schedules. They set out a 3-year timeline for coal companies to get in compliance. And in the meantime, DEP said it would not enforce selenium limits.

Rank: They keep giving extensions, extensions. Well, maybe three years from now you can come into compliance. Well, that might be good from a management point of view, but it’s certainly not good from the point of view of the people, the fish, or the rest of the environment.

Sale: A legal challenge of 24 of those compliance schedules is now before the state Environmental Quality Board. The environmental groups want the board to declare them illegal and require DEP to enforce regulations now. A decision is expected any day.

Huffman: That’s really, probably at the heart of what this agency is being criticized the most for.

Sale: At the time these compliance schedules were issued, Randy Huffman was the DEP’s Director of Mining.

And he defends their use.

Huffman: Simply having an agency saying, thou shall treat for selenium no matter what, that doesn’t make it happen. We want to be part of the solution, and doing the research, understanding selenium, and the more we understand about selenium, the more capable we’re going to be in coming up with ways to treat for it.

Sale: So are you basically saying that it’s too early to come down hard on these violations? Is that what you’re saying?

Huffman: That’s probably an unpopular, probably an unpopular statement, but I guess the net effect of what we did says that.

Sale: Huffman, and the WV Coal Association, point out that there are already efforts to identify and contain rocks that have selenium. But both say there’s not proven technology to treat selenium in water run-off.

Huffman: It’s easy to say let’s shut these operations down. Let’s force compliance today. But if the technology doesn’t exist, it doesn’t protect the environment for me to force something that’s not possible today.

Sale: The environmental groups disagree. They say a treatment does exist. It’s just expensive. Again, Cindy Rank.

Rank: Whatever expense it takes to keep the water from having toxic levels of selenium is not too expensive. And if the folks who are mining here are benefiting that is being taken out, it’s their responsibility to protect the environment, especially off-site. I mean, that’s the law, let alone the moral responsibility.

Sale: In their federal lawsuit, the environmental groups want an injunction to force Hobet Mining to have a treatment plan in place within 3 months.

Meanwhile, the DEP has also sued Hobet Mining over selenium, but environmentalists say that lawsuit is designed to help the coal industry. Here’s why:

Under the Clean Water Act, citizens can file enforcement lawsuits. But lawsuits by state enforcement agencies take precedence.

A year and a half ago, environmental groups filed a required 60-day notice that they were preparing to sue Hobet Mining for failing to comply with the Clean Water Act.

Then, on the 60th day, the DEP filed suit in Boone County, which kept the citizens’ lawsuit from moving ahead.

In court filings, the environmental groups charge that DEP filed this lawsuit to thwart their effort in federal court to force selenium compliance.

But Huffman says DEP did the responsible thing.

Huffman: That’s our job, is to enforce the Clean Water Act, and to be quite honest, I shouldn’t, as the head of this department on the state level, I shouldn’t put the citizens in a position to have to file a lawsuit to have the law enforced.

Sale: It’s been more than 15 months now since DEP filed that lawsuit. The environmental groups say DEP has hardly done anything since. Huffman says more has happened in the case than what they know, but he can’t disclose what because it involves litigation.

Huffman: We probably didn’t act as quickly as we should have, and I understand their concerns, and have actually pushed our lawyers more quickly than what we were moving, so there’s been a lot more activity on that.

Sale: Huffman says he hopes the lawsuit will pressure the coal industry to move faster to come up with treatment options.

Huffman: What is the end-game if nothing can be done to treat for selenium? That’s a complicated answer to a simple question. I don’t know the answer to that.

Sale: For WV Public Broadcasting, I’m Anna Sale.

LET’S GET OUR WORDS STRAIGHT http://www.newwest.net/city/article/wilderness_is_multiple_use/C509/L509/
By Bill Schneider, 5-08-08

Have you ever heard somebody say they prefer “multiple use” over Wilderness? I have what seems like a thousand times, and every time I hear it, I say to myself, wrong!

So, it seems like a good time to say it out loud because the words, “multiple use” have been lost in the Wilderness.

In the common vernacular, especially among those who favor commercial uses of public lands, “multiple use” means development instead of protection. What they really mean when then say, “multiple use” is “logging use” or “commercial use” or “motorized recreation use” or most appropriate, perhaps, “single use.” But in reality, congressionally mandated Wilderness, as designated under the provisos of the Wilderness Act of 1964, is much closer to being multiple use management than mining, logging and other commercial uses of public land.

The Multiple Use and Sustained Yield Act of 1960 brought the words into common usage. Officially and ironically, the Act lists the five multiple uses as outdoor recreation (listed first, but no hidden message in that, right?), range (i.e. livestock grazing), timber, watershed, and “wildlife and fish purposes.”

(Actually, the five multiple uses are listed alphabetically, but the bill’s drafters had to abandon the common usage of “fish and wildlife” and go to “wildlife and fish” so it wouldn’t be listed first. There’s definitely a message behind that one.)

Legally, Wilderness allows all of these uses except timber. Any grazing allotments in place before designation remain active unless purchased or retired, and as a result, some designated Wilderness areas currently have livestock grazing within their boundaries. Even mining is legally allowed in Wilderness if the leases were in place before designation, although enviros commonly oppose any proposal to do so, and end up defeating or delaying most Wilderness mines.

The Multiple Use and Sustained Yield Act is a long, complicated piece of legislation open to interpretation, but right on the first page, it prominently states: “Multiple use means the management of all the various renewable resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people.”

I interpret that definition as our roadless lands could all be designated as Wilderness to “meet the needs of the American people”–and fit into the definition of “multiple use.” This law doesn’t list mining as one of the “multiple uses,” nor does mining meet the definition because gold, silver, copper, coal, et al are not renewable resources. So, let’s be clear on this one. Mining is single use.

Compare Wilderness, which allows four out of the five defined multiple uses and protects three of them (fish and wildlife, outdoor recreation and watershed) to a large mining development or mountainside being clear cut, both considered “multiple use” by its supporters. But where is the “multiple use”? Where is the fish and wildlife, outdoor recreation, livestock grazing or watershed protection? All are gone at least during active development if not long into the future in the case of mining. Ever see cows grazing on an active mining site? No hiking or even ATVing there. No wildlife or hunting or fish or fishing. And watershed protection? Ever see the water flowing out of an active mine–or sadly, many abandoned decades ago? Or taste it? Likewise, how many streams have been silted up for years in the wake of poorly planned timber cutting?

Timber development, incidentally, can be managed correctly to preserve watershed and wildlife values and still be good hunting or hiking land after the cutting stops if roads are retired, even opened to livestock grazing again, but how often does this really happen? Not enough, I’m sure.

The words, “multiple use” have been lowered to a political catch phrase. Ever hear a politician say he or she favors “multiple use” instead of Wilderness? Politicos should be honest and say they want commercial use of public lands and stop trying to fool us by using “multiple use” because it sounds so wide-reaching politically while hiding the true intent. If they really wanted more multiple use, they would support Wilderness designation.

The worshippers of “multiple use” pretend to represent a broad range of interests when they are, in reality, supporting special, single use or abuse of public land we all own. Contrarily, whether or not we choose to admit it, Wilderness supporters represent the majority of us, even those who never go there. We marvel at the scenery; drink the pure water; breath the invisible air; enjoy the wildlife; or just feel good about a small part of the country remaining untamed.

By John McFerrin and Peter Shoenfeld

The West Virginia Highlands Conservancy Board of Directors has made a significant shift in its policy on wind energy projects. Instead of focusing only on a proposed project’s impact upon the natural environment, the policy now will broaden the focus to include consideration of the role of the wind energy in overall energy policy.

This shift appears in the policy adopted at the April 20 Board meeting: The West Virginia Highlands Conservancy opposes all large, utility scale wind energy projects in West Virginia unless it is demonstrated that the power to be produced by the project would replace power which otherwise would be generated through the burning of coal.

Previous policy had focused on such things as aesthetic values, danger to birds and bats, etc. That policy had been influenced by the unspoken assumption that electricity produced by wind farms would, at least to some extent, replace electricity produced by the burning of coal. Recently, enough doubt has been cast on that proposition so that it can no longer be taken for granted.

Any energy production has a social and environmental cost. Wind farms can damage scenic views, kill birds and bats, diminish property values, and fragment forests. The mining, transportation, and burning of coal can damage or destroy streams, cause blasting damage, pollute the air, obliterate forests, and endanger the lives and health of miners and nearby residents. Production of energy by other means may be more benign or less so but there is always some cost.

One of the appealing features of wind power has always been that it produces none of the air or water pollution associated with coal. No carbon dioxide, no sulfur dioxide, no mercury, no acid mine drainage, nothing. Were it replacing coal, then wind would be highly attractive under some circumstances. To determine a position on any project, we would still have to consider its impact upon wildlife and those who live nearby but it would be worth a look.

This is what the Highlands Conservancy has done in the past. It was active in developing siting standards that the West Virginia Public Service Commission uses to evaluate proposed projects and make permitting decisions. These standards were listings of information that a project developer had to submit and the Public Service Commission had to evaluate. The Conservancy has always supported careful consideration of those of the information submitted as a way to allow wind energy development while still minimizing the costs to society and the environment. It had always hoped that a strict adherence to those standards and careful evaluation by the Public Service Commission would diminish the social costs of wind energy enough that it could support it.

Because the costs in terms of stream loss, water and air pollution, etc. associated with coal were always so great, wind power wasan attractive alternative. No matter what the social costs of wind, they always pale when compared with those of coal.

If, on the other hand, the wind energy does not replace coal, then there is less justification for suffering the costs to society associated with wind. We might, for example, more easily tolerate the deaths of birds at wind farms if this meant that less of the bird habitat destruction inherent in coal mining took place. We might tolerate some inconvenience to those who lived near wind farms if that meant some relief for those who lived near coal mines. If the destruction to the land and misery to the people who live near coal mines still goes on whether there are wind farms or not, there is less reason to tolerate the social costs of wind power.

There has recently been considerable evidence presented that for most or many proposed or operational projects, wind energy fails to replace coal to a significant degree. Admittedly, most of the material we have thus far studied comes from the literature of Wind Farm Opposition *1 or that of Public Energy Policy Analysis *2. The engineering literature is difficult and we are still making first steps at penetrating it. However, what we have learned already seems sufficient to ask for an affirmative determination that coal will be replaced as a pre-condition for our support of any particular project.

This new position will have an immediate effect upon Highlands Conservancy action. In its promotion of its proposed Laurel Mountain wind project, near Elkins, AES LLC has freely admitted that no coal burning will be replaced. Because of this, we are applying the new resolution by submiting a Letter of Protest to the WV Public Service Commission. This letter was still in progress at the time the Voice went to press.

*1 Jon Boone, Less for More: The Rube Goldberg Nature of Industrial Wind Developmen.
*2 Tom Adams, Review of Wind Power Results in Ontario, May to October 2006, Energy Probe, November 15, 2006

Following Rick Webb

by Hugh Rogers

Saturday morning at the Spring Review and Sustainable Fair: University of Virginia research scientist Rick Webb began his presentation on wind energy pros and cons and was promptly interrupted. Through a thicket of questions and counter-questions he made his way to the next point. New questions arose. Later points were anticipated. Divergent claims were made. Finally, a frustrated majority demanded that questions wait until Rick had finished. So he did, and for long afterwards remained at the front of the Davis and Elkins College lecture hall, cheerfully responding to antagonists, supporters, reporters, and the just plain curious who had him surrounded.

I tried to recall when I had first seen Rick in the eye of a controversy. Was it in Cowen, in Webster County, where his Mountain Stream Monitors had challenged strip mine permits, and at the end of a public hearing a crowd of angry coal miners mobbed him? TV lights snapped back on as a crew of state police and sheriff’s deputies waded in to stop the assault. Or was it in West Virginia Wesleyan’s student union,where at a hearing on an environmental impact statement on mining in the Buckhannon River watershed, Rick’s de facto bodyguard, the late Highlands Conservancy board member Bard Montgomery, threw a miner who’d attacked Rick to the floor? Or it might have been in the east wing of the Capitol, in the politer company of the Supreme Court of Appeals, where my run of the mill criminal case was followed by a coal company’s libel suit against Rick for describing their pollution of that same Buckhannon River.

Those events date back to the end of the Seventies and beginning of the Eighties. Then Rick and his family moved from their Braxton County farm, which had been undermined by another coal company, to Elkins, where Susan taught our kids and Rick finished his college work at Davis and Elkins. He went on to the Department of Environmental Sciences at the University of Virginia, Susan taught in public schools in Charlottesville, and we mostly followed each other’s lives second-hand. Hard to believe he was now a graying grandfather; the same soft-spoken equanimity coexisted with the same persistence.

Rick coordinates the long-term Shenandoah Watershed Study and other studies of the effects of air pollution on streams in the central Appalachian Mountains. He’s all too familiar with the direct and indirect damage coal has done and continues to do. But as a scientist and a citizen, he doesn’t believe that wind should get a free ride. We ought to look at the data, weigh the costs and benefits. Otherwise, some years down the road, we might realize that we’d been fooled again, and this so-called “green” energy had trashed our remnant wild areas, cost us a bundle, and distracted us from real solutions.

Since he began making that case several years ago, a couple of things have happened. Virginia’s then-Governor appointed a Wind Energy Collaborative (VWEC) to study the potential impacts of wind energy development in the commonwealth. Dominated by industry, the VWEC shunned its Environmental Working Group, on which Rick served with three others, and censored their report. The full Landscape Classification System (2005) and many other relevant documents can be found at www.vawind.org. The censored version, containing about 10% of the original and deleting all references to theneed for environmental assessment—the Environmental Working Group’s original purpose—was handed to the Governor.

Last year, Virginia’s State Corporation Commission ruled on the application of Highland New Wind Development for a project west of Monterey, near the West Virginia border. The commission seemed to have learned from our state’s experience as well as Rick’s and others’ testimony. Strict requirements for monitoring wildlife impacts were coupled with a bond for the cost of removing the turbines if the project could not meet its conditions, that is, “if the carnage continue[d].”

So far, that developer has not moved forward on the ground; instead, it has attempted to change the rules by removing the Corporation Commission’s jurisdiction over such projects. A bill to accomplish that is stuck in the Virginia Senate.

Rick recently served on a National Research Council committee investigating the environmental impacts of wind energy. When they asked for data to support the industry’s figures of fossil fuel consumption offset by wind turbines, they were told that the information was “proprietary.” Professional skepticism remained unabated. A cost-benefit summary based on the commission’s report is on the Virginia Wind website.

As we have seen, the wind energy industry is wary of cost-benefit comparisons, environmental assessments, concerns about birds or bats or forest fragmentation. They are working hard to “brand” the shiny three-bladed turbines as our key to a clean green future. Since Rick won’t shut up about the costs and questions the benefits, they have tried to brand him as pro-coal. But his professional career has always involved calling coal to account. (One recent example was his testimony on the consequences of Illinois Power’s sulfur emissions for aquatic resources in the central Appalachians.)

His public presentations on wind, though contentious, haven’t led to assaults. In the D&E hall on that Spring Saturday most of us didn’t notice we were being taped. In fact, two cameras were running— knowing the industry’s agents had begun to follow him around, looking for misstatements they might use to their advantage, Rick kept a record for himself.

By Ken Ward, Jr.

Nearly 38,000 acres of the Monongahela National Forest would become congressionally protected wilderness under a bill passed this week by the House of Representatives.

The legislation, authored by House Natural Resources Chairman Nick J. Rahall, DW. Va., adds three new wilderness areas and expands three existing areas. It passed the House Tuesday night in a 368-17 Earth Day vote.

“To be in a wilderness area is, to me, a humbling experience,” Rahall said Wednesday. “To be a part of designating wilderness is even more humbling, because the ultimate goal in protecting these areas is to retain the landscape as God created it.”

Included in the legislation are the expansion of the existing Cranberry, Dolly Sods and Otter Creek wilderness areas and establishment of the new Big Draft, Roaring Plains West and Spice Run wilderness areas.

All six areas are currently managed without motorized access and essentially treated as wilderness, but a future forest plan could change that unless Congress formalizes the wilderness designations.

The House bill is also sponsored by Rep. Alan Mollohan, D-W.Va., and Rep. Shelley Moore Capito, R-W.Va.

All 17 votes against the wilderness designations were from Republicans.

The bill now goes to the Senate, where Sens. Robert C. Byrd and Jay Rockefeller, both D-W.Va., are sponsoring similar legislation.

If made law, the legislation would increase by nearly 50 percent the amount of congressionally protected wilderness areas in the Monongahela National Forest. Currently, about 78,700 acres of the more than 919,000-acre Mon Forest are designated as wilderness.

Under federal law, wilderness areas are those “where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” A wilderness
is “undeveloped federal land retaining its primeval character and influence, without permanent improvements or human habitation.”

In general, the Wilderness Act prohibits commercial activities, mechanized access and roads, structures and facilities. Hiking is allowed, but logging is prohibited.

The bill approved Tuesday night does not include Rahall’s original plan to also add a new, 8,000-acre Cheat Mountain Wilderness Area.

That area was deleted in committee, in part at the request of Capito, after it drew opposition from some local politicians and citizens.

“Folks in the local communities understand these areas the best,” said Jonathan Coffin, spokesman for Capito. “They use it the most. They live there. She has deferred to their judgments.”

Gov. Joe Manchin and state Division of Natural Resources officials also opposed inclusion of Cheat Mountain in the wilderness bill.

But other additional wilderness areas proposed by Manchin as a trade-off - including 13,000 acres at Seneca Creek - were not included in the House-passed bill. The three areas proposed by Manchin, but not included in the bill, are all in Capito’s district.

Dave Saville, campaign coordinator for the West Virginia Wilderness Coalition, said it was “somewhat disappointing” that those areas were not in the House-passed bill.

“These special places are near and dear to so many people across the state, and we hope the version ultimately sent to the president’s desk includes them,” Saville said.

This article originally appeared in The Charleston Gazette

By Cindy Rank

I first saw the village of Mud in Lincoln County on a 1996 trip with a legislative interim committee charged with studying the state’s mitigation policy. We went to view Connelly Branch Hollow, a beautiful lush valley that was to be buried beneath a proposed 2.5 mile long valley fill planned as part of a 2,000 acre permit at the Hobet 21 mountaintop removal mine complex along the Boone Lincoln County line.

Witnessing the not-so-gradual expansion of the now 20 square mile Hobet 21 complex has become more difficult with each of numerous visits over the past 12 years.

The disappearance of the local communities of Mud, then Berry Branch, and the massive disruption of forest and streams is always alarming, but a trip to that area and a visit to the Caudill- Miller homeplace last Friday proved to be more difficult than ever.

• Mining along the Mud River road and up Sugar Tree Branch around the back of the remaining 25 acres of the Caudill homeplace has expanded tremendously since our last visit three short months ago.
• The gargantuan preparation being done to enable the dragline (Big John) to cross back over the Mud River near the mouth of what once was Connelly Branch is incredible and dwarfs the tiny Mud River Road through the area.
• Discharge reports show levels of selenium discharged from the Hobet mining operations into the Mud River and its headwater tributaries often exceed the limits allowed by federal and state law.
• Documentation about increased levels of selenium in the Mud River itself and research by WV Department of Environmental Protection (WVDEP) Water Assessment Team indicate fish deformities and other impacts on aquatic life in the Upper Mud River Reservoir are likely related to toxic levels of selenium from these discharges upstream.
• Fish advisories have been issued by the Health Department that individuals should avoid eating fish due to harmful selenium levels in certain state streams and lakes, including Upper Mud River Reservoir.

Despite this growing body of research and knowledge, WV DEP continues to allow violations of selenium limits at mine sites where problems are known to exist.

Because the DEP continues to delay enforcement of selenium limits, the WV Highlands Conservancy and others have taken action to hasten that enforcement.

As reported in earlier articles in the Voice, we joined the Ohio Valley Environmental Coalition (OVEC) and Coal River Mountain Watch in challenging WV DEP’s practice of extending compliance orders for companies not meeting the appropriate selenium limits. Those challenges are awaiting ruling by the Environmental Quality Board of West Virginia.

In a separate action, early in 2007 WV DEP went to court presumably to enforce permits for two particular mines – one at Hobet 21 on the Mud River and another at Apogee Ruffner complex on Rum Creek. After a nearly a year long delay by DEP, the Highlands Conservancy and OVEC filed a Clean Water Act suit against those companies in federal court.

We asked the court to require the companies to comply with the Clean Water Act, to insist that selenium limits be enforced and that civil penalties be assessed for violations by discharges in excess of those limits.

A hearing is scheduled in this matter in the District Court at Huntington May 20, 2008.

I’m certain not everyone will be alarmed by the possible selenium related problems in the Mud River and the Upper Mud River Reservoir. It often takes dead bodies – of canaries, fish or people to recognize even the most serious of problems.

However, current research and information mentioned above has prompted Dennis Lemly, a well-known and recognized expert on selenium, to conclude the following in his draft report to the court on our behalf.

“Based on comparisons between the concentrations of selenium found in West Virginia monitoring investigations and the known toxic effects of those concentrations as demonstrated in research studies of streams and reservoirs across the Southeast and Midwest, using the same fish species and environmental exposure conditions present in West Virginia, it is highly probable that a substantial amount of both Type 1 and Type 2 selenium poisoning is taking place in the Mud River ecosystem.”

And further, “This assessment is validated by the finding of selenium- induced deformities in newly hatched fish collected from Upper Mud River Reservoir in 2007. Clearly, the Mud River ecosystem is a tinderbox on the brink of a major toxic event. It is essential to reduce waterborne selenium concentrations before reproductive toxicity spirals out of control and fish populations collapse. The warning signs are evident. Now is the time to take action.”

Declaration of A. Dennis Lemly, Ph.D.
On
Aquatic Hazard of Selenium Releases From Coal Mining in the
Mud River Ecosystem, West Virgina (pdf 487MB)

By Cindy Rank

Just when you think careful bird-dogging of what should be a transparent permitting process might be working, the Army Corps of Engineers pulls another fast one.

Despite Margaret Janes’ weekly Freedom of Information Act requests for permit documents, the Corps neglected to notify the Appalachian Center of additional valley fill permits issued in the last several months.

A phone call from someone reading a trade journal alerted the Center to the fact that permits had been issued.

As a result, lawyers for WV Highlands Conservancy, Ohio Valley Environmental Coalition and Coal River Mountain Watch returned to court mid-April to ask Judge Chambers to restrain three additional mines – one each in Nicholas, Kanawha and Boone/Raleigh Counties.

In his March and June 2007 decisions, Judge Chambers pointed to the “alarming cumulative stream loss” to valley fills. He ruled that the Corps needed to do a more thorough review of potential impacts before permitting and that the Clean Water Act doesn’t allow in-stream sediment ponds at the toe of valley fills.

The three new permits no more address these concerns than did the original permits included in the 2007 rulings. Nonetheless, permits in hand, the three companies proceeded with their mining.

Lacking notification by the Corps we were unable to challenge these inadequate permits until damage had already been done to some of the streams at issue. While the companies have since agreed to limit operations to those stream valleys already disturbed, you can see the pattern that has developed…

Our lawyers wrote: “The Corps knows that any delays in notifying plaintiffs of issued permits have the effect of allowing coal companies to fill and destroy streams quickly before citizens can seek judicial review and injunctive relief to challenge the Corps’ permitting decisions.”

Judge Chambers told the Corps that requiring plaintiffs to make weekly records requests was not acceptable and ordered the Corps to provide notice of any new permits to the Appalachian Center at the same time coal companies learn that their permits are granted.

“Whether it’s because of the bureaucratic process or any other reason… it is just unacceptable that in this case the plaintiffs are not advised until weeks or sometimes longer after permits have been issued.”

“If a stream has already been filled, for better or worse, it’s beyond the court’s ability to grant any relief.”

NB: These recent permits have been included in the Chambers decisions now on appeal before the 4th Circuit Court of Appeals. Oral arguments in that appeal originally scheduled for May 13th have been delayed until September 2008.

By John McFerrin

The spring meeting of the Board of Directors of the West Virginia Highlands Conservancy featured much that was the same but still managed to produce a wind energy policy that was new and different.

We had the usual report from the treasurer on our financial situation (solid but not flush) and a report from Don Garvin on the state of matters legislative. As reported in last month’s issue of The Highlands Voice, it was win some, lose some.

He is ambivalent about changes in the process for protecting streams. For years the Legislature had tried to divide the state’s good quality streams into categories (Tier 2, Tier 2.5, Tier 3) with each tier getting a different level of protection. The Legislature then argued interminably about which streams went in which category. This time around the Legislature abolished Tier 2.5 and is doing rules on how it will sort streams into the remaining categories.

Don reported that the immediate result of the change is more secure protection for trout streams in the national forest. In the longer run, we will have to see. The Department of Environmental Protection is doing rules and will bear watching.

He was heartened by the significant number of initiatives to be studied in interim committees. While occasionally a study is where an idea goes to die, the more realistic and hopeful view is that an idea being studied means it is being taken

seriously. The current list is only of topics that are authorized for study. In order to have them actually studied it is necessary that the chairs of the committees decide to take up the topic authorized. He is working with committee chairs to help them understand the wisdom of studying the topics he suggests.

So that Don and his colleagues will have the resources necessary to do this, we decided to make a challenge grant of $2,500 to this effort. In the past, the Highlands Conservancy had been the only group funding an interim lobbying effort. We decided to challenge other groups that, if they would make contributions to that effort, we would make matching contributions of an equal amount up to a total of $2,500.

We talked about how we might better promote Dave Elkinton’s book on the history of the Highlands Conservancy (to order one see p. 11 of this issue of The Voice), including possibly presenting copies to libraries. Hugh presented a temporary committee of Beth Little, Buff Rodman, Cindy Rank, Hugh Rogers, and John McFerrin to explore the possibilities.

Bob Gates has made a video of the October Fall Review/Celebration of our 40th Anniversary. He has edited out the slow parts and left us with about an hour of interviews, comments, etc. We pondered a bit about how we could best use this but did not make a decision until most of the Board had had a chance to see it.

We had a presentation by Corey Bonasso on the red spruce tree planting project. Things are cooking. They have planted lots of trees and had fun doing it.

We also had a presentation from Mike Costello about the Wilderness Coalition. The Wild Monongahela is moving right along. (See WILD MONONGAHELA ACT PASSES IN HOUSE for more information).

The Fall Review is set for the weekend of October 26. It will not be at the Cheat Mountain Club this year. The location is up in the air.

We had a LONG discussion on wind energy policy. See CONSERVANCY SHIFTS POLICY ON WIND ENERGY to find out how this turned out.

Cindy presented an update of what we are doing on mining matters (a lot). Those who had survived the wind discussion got some useful information. See SELENIUM–WHAT ARE THE FISH TELLING US? and CORPS CONTINUES TO GRANT PERMITS DESPITE COURT RULING.

Bob Gates told about his field trip to Washington, D.C.. He wrote about it for this issue of The Voice.

Frank Young reported on the developments in the big power line, known as TrAil.

In the midst of all of this the group broke into Happy Birthday to You in honor of the birthdays of Ruth Blackwell Rogers and Bob Handley.

Becky Young graciously served as cook, maitre’d, etc. for an excellent lunch.

In addition to the usual passage of blls, debate, flights of
eloquence, palaver, pomposity, etc., the Legislature also assigns
itself homework. These are topics that the various committees are
supposed to study in anticipation of acting upon them the next time
the Legislature meets.

A partial list of the topics the legislature has authorized study of
appears below. This is only those topics which may be of interest to
Conservancy members. The entire list may be found on the
legislature’s web site.

Being on the list does not guarantee that an item will be studied.
There are so many items that study of them all would be impossible.
The committee chairs get to decide what items are actually
studied.

2008 Interim Committee Study Assignments

Joint Commission on Economic Development
SCR 2 Study tourism opportunities in less-developed counties
SCR 70 Study West Virginia Tax Increment Financing Act
HCHCR 28 Study the development of clean coal technologies such as coal liquefaction
HCR 61 Study development of an intermodal transportation facility to promote economic development in Southern West Virginia
HB 3188 Creating a means by which effectiveness of economic development incentives can be measured
Study of Alternative Funding Methods for Highways Maintenance and Construction
Study of the Economic and Environmental Impact of the Coal Industry

Legislative Oversight Commission on Health and Human Resources Accountability
HCR 72 Study existing autism services.
HCR 74 Study West Virginia’s response to the problem of substance abuse
Study the Public Health Impact of DEP Rules

Joint Standing Committee on Government Organization
HCR 87 Study of the adoption of green building standards
HCR 95 Study of the law governing the Board of Registration for Foresters
HCR 113 Study of the impact of climate change
HB 4525 Weatherization Program under the Department of Energy
Study of the WV 211 Program

Joint Legislative Oversight Commission on State Water Resource
HCR 84 Study to improve the state’s efforts to better promote the availability of safe drinking water projects funding
HCR 110 Study mitigation practices and resources in wetland areas
HCR 115 Study feasibility of requiring residential business and industrial water connections along newly established waterlines

Joint Standing Committee on Judiciary
SCR 11 Study sequestration of greenhouse gases
SCR 57 Study the administration and enforcement of oil and gas wells relating to the rights of surface owners
SCR 78 Study impact of Chesapeake Bay restoration
SCR 90 Study severance tax effects on natural gas and oil industry
SB 676 Study municipal, county and legislatively created park commissions’ liability for recreational activities
HCR 14 Study feasibility of requiring legislative rules to be filed electronically
HCR 33 Study increase in the prevalence of coal workers’ pneumoconiosis
HCR 77 Study the existing law and regulation of oil and gas drilling by the State of West Virginia regarding the balance of existing rights between surface owners and operators and what mechanisms now exist or can be enacted in law so that the rights of both parties and the public are recognized
HCR 79 Study the feasability of election day registration and its potential impact on elections and on voter turnout in the state of West Virginia
HCR 114 Study of litter and landfill avoidance, beverage container recycling and litter control systems

Joint Standing Committee on Finance
Study of Short and Long Term State Water and Sewer Infrastructure Needs
Monitor Water Trust Fund and new reclamation fund tax

By Betsy Reeder

The last snow
Fell on Appalachia this week
On a mild spring night
A storm carried across the Gulf
On wings lit by stars
Picked up by radar
But left unannounced

The woods weren’t taken by surprise
Readied in party dresses: golds and greens, reds and russets
Softened to receive
This snow of many colors

Without sound, without notice
It fell all night long
Landing lightly on yielding twig tips

This sweet, bright landing of feathered forms
Come a thousand miles and more
To generous hills (save those blasted)
That have never failed to take them in.

Warblers of every color on God’s palette:
Black-throated green
Golden-winged
Yellow-throated
Black-and-white
Bay-breasted
Chestnut-sided
Black-throated blue
Cerulean

Falling, falling from a moonlit sky
Into upturned arms of trees.

By Judy Rodd, Director, Friends of Blackwater

As many Highlands Voice readers know, “Ginny,” the endangered West Virginia Northern Flying Squirrel, lives in six West Virginia counties, and one in Virginia. Ginny is a relic of the ice age — a cute, furry, big-eyed nocturnal creature, who feeds on funguses that grow on the roots of trees.

Ginny has been on the endangered species list since 1986, and she is a symbol of West Virginia’s magnificent Northern Highlands, and a “poster child” for the diverse ecology of the Blackwater Canyon.

Last year the U.S Fish and Wildlife Service refused let the public see 196 pages of documents about the Service’s wacky proposal to remove all federal protection from Ginny and her species. (What can be so secret about a squirrel?) Congressman Nick Rahall held hearings that revealed improper political interference in scientific decisions on species like Ginny.

In a recent interview in our Friends of Blackwater newsletter, Ginny was quoted as saying she was counting on us humans to keep her legally protected, since at the moment she’s pregnant!

So, what are we humans doing to protect Ginny? Well, more than twenty-five groups – including the Highlands Conservancy — have formed the “SOS! - Save Our Squirrel” Coalition, and have pledged to protect Ginny and her family. All of the public and expert comments on the “de-listing” proposal have said that it would be wrong to remove protection from “Ginny” and her species.

Now an important scientific opinion about Ginny has been submitted to Fish and Wildlife by the distinguished scientist Dr. Robert Leo Smith, West Virginia University Professor Emeritus in Wildlife Ecology. Dr. Smith has an international reputation in wildlife population studies, and he is the author of a standard textbook in the field.

Dr. Smith’s 25 page report concludes: “Thus, with very weak data on all aspects of the species’ recovery, and lacking any data whatsoever on the actual population status of the species, the Fish and Wildlife proposal is not supported by acceptable and provable scientific evidence showing that the species is no longer endangered, so as to warrant the removal of endangered species protection.” For a complete copy of Dr. Smith’s report, go to www.saveoursquirrel.com.

The “Save Our Squirrel” Coalition welcomes Dr. Robert Leo Smith’s important scientific contribution on behalf of Ginny, her species, and those who love the West Virginia Highlands. Now that a scientist of Dr. Smith’s stature has weighed in solidly on behalf of continued protection for “Ginny,” we hope that Fish and Wildlife will drop this flawed de-listing proposal completely. To push ahead with a proposal that lacks any shred of scientific credibility, and that is bound to be defeated, would be a major waste of taxpayer dollars.

By Mike Juskelis

Day 1(9.89 miles and 2400 Ft Elevation Gain):
I was joined by Hardcore, Bryce, Pathfinder, Skywalker, Barbara, Stacy (NO E) and Over and Out. We met at the car drop-off point at MP 51.7 on the Blue Ridge Parkway (BRP) and drove south for approximately 27 miles to the starting point at Sunset Field and the Apple Orchard Falls Trailhead. We hit the trail under threats of bad weather at around 12:20.

We started with the climbing right away with an 864 foot ascent on Apple Orchard Mt. This and the climb up the backside of Highcock Knob would be the hardest part of this 9 + mile day. There really are no apple trees on Apple Orchard Mt. They are actually stunted White Oaks. After passing under the guillotine everything else was a nice ridge walk.

Shortly after passing by the Thunder Hill Shelter we arrived at the Thunder Ridge Overlook. (Yes Mildred we could have driven there!) That patch of white rocks on the distant ridge is The Devil’s Marbleyard. We hung our food and were all cozy in our tents by 8:00.

Day 2 (10.04 miles and 800 Feet Elevation Gain):
By 6:30 the rain had stopped and we arose to the call of a Barred Owl: “Who cooks for you! Who cooks for you!”. We were on the trail by 8:30 but the fog rising out from the surrounding valleys precluded any good views. I had hoped to show the group the almost 360 degree view from an area called the “Helicopter Landing Pad” but you couldn’t see your hand in front of your face. This is what it looks like on a clear day.

As we descended from the top of the James River Face Wilderness the fog lifted and offered a nice view of the James River. At the bottom we took an extended break at Matts Creek Shelter and dried out our tents.

The 625 ft, 1.5 million dollar James River Foot Bridge was something to behold. You can see Little Rocky Row in the far distant center and Big Rocky Row to the right. We would climb them the first thing tomorrow.

We arrived at Johns Hollow Shelter around 4:00 and enjoyed anice evening and a fire before the rains came again.

Day 3 (9.39 miles and 3100 Feet Elevation Gain):
It rained all night until just before it was time to get up. We ate in the shelter, broke camp and humped all of our wet gear up to the top of Little Rocky Row and then Big Rocky Row. After that we had a nice long stretch of rather flat ridge hiking on a smooth tread until we hit the bottom of Bluff Mt. It seemed like the trail builders were determined to take the most circuitous route to get to the top. Once there we saw the memorial to Little Ottie, a lost 5 year old who died on the top of the mountain. After a gradual descent it was an easy flat and/or downhill walk for the last 1.5 - 2.0 miles back to the plant cars. We were done hiking by about 3:30.

By Michael Juskelis

The weather turned out to be great for early April - high 50s to low 60s with partially cloudy skies. I was joined by William, Treebeard, Indiana Moser, Hardcore, Shortstack, 16 Penny, Good Golly Miss Molly, Andromache, Pat and Ted E. Bear.

We kept a pretty brisk pace throughout the hike slowing down only for the four crossings of Halfmoon Run and the steep climb up Mr. Wilson’s Tr. That one always gets me. After the main climb we ran into Lee Manning and his PATC Stonewall Brigade who had just finished up some trail maintenance. After a brief conversation we completed our climb and took a nice lunch break at the top. William showed us another rock outcrop that offered more westerly views.

We descended on the Halfmoon Trail and took a final break at another stream also named Halfmoon Run before completing the circuit using the Bucktail Cutoff Trail. We were back at the vehicles by 3:30. We changed our footwear, said our goodbyes and headed back to civilization.

By Bob Gates

To urge Congress to pass the Clean Water Protection Act (HR 2169) 125 people from 20 states gathered in Washington April 5 - 9 to lobby Representatives and Senators. This effort was sponsored by The Alliance for Appalachia, of which the West Virginia Highlands Conservancy is one of 13 member groups. We made about 140 office visits and acquired eight more signatures for a total of 139 co-sponsors for the Shays/Pallone bill.

The Clean Water Protection Act simply restores the definition of “fill” to the original language and intent of Congress. The Bush administration tried to circumvent the Clean Water Act by issuing an executive order that would define “fill” to include waste, in this case Mountaintop Removal rubble dumped into headwater streams as Valley Fills. HR 2169, your basic two-sentence bill, would not preclude non-waste fill placement for useful development.

In the meeting that I attended with Congressman John Yarmuth of Kentucky, an avid co-sponsor of the bill, we discussed trying to rein in the Army Corps of Engineers from rubber stamping permits. It turns out that two different groups of people photographed the sign in front of the Corps’ Government Accountability Office building because we thought the oxymoron was pretty funny in this context. I grabbed my little camera out of my bag and passed the picture around the room. Chad Berry of the Appalachian Studies program at Berea College was in this meeting and it turns out that he had taken the same shot as well.

Most meetings were at least cordial. While meeting with Congressman Connie Mack of Florida, I was able to point out that two other people with us were from Florida and I was impressed on how well informed they were on this issue. I mentioned that in the first meeting that I had that morning we had four 8th grade girls from Great Falls who were extremely well informed and they planned to continue their group meetings through the summer. We had a hard core meeting with Rockefeller’s office, but certainly left his aide much more well informed. I gave them a copy of Mucked as we left. I understand that Nick Joe Rahall was hostile to his meeting delegation.

With two gala dinners and a little karaoke at the hotel, we also had a good time. The multi-state gathering of activists reminded me of the 70s when we were pressing Congress about strip mining (though Ken Hechler and I were for the abolition of strip mining altogether). We wrapped up Tuesday evening with a legislative reception of wine and cheese with six Congressmen and an aide for Pallone (that is quite a number) who were enthusiastic sponsors of the Clean Water Protection Act and thanked us for all our efforts.

By George E. Beetham Jr.

People who support wind farms on mountain ridges keep referring to those who oppose them as “NIMBY’s”, an acronym for Not In My Back Yard. I have to admit to being puzzled why people think everybody who opposes wind in the mountains is either a NIMBY or a wind opponent.

I am neither. I am, if anything, a YIMBY. That is, Yes In My Back Yard. I live in southeastern Pennsylvania outside of Philadelphia. Electricity generated in the mountains of West Virginia is marketed in Philadelphia and other major urban centers

I see several problems with this. First and foremost, if the cities are the major users of electricity, and anybody who has visited any East Coast city would have to agree that we are major users, then why shouldn’t the generation facilities be close to where the electricity is used? There are designs for wind turbines that can sit atop skyscrapers, in effect providing the electricity the building needs. Granted, current buildings would have to be retrofitted, but I would prefer to see that instead of wind turbines along Appalachian ridges. Build turbines along the medians of interstates.

I live in the city. I go to the mountains of West Virginia to experience what is left of nature here in the East. Admittedly, there isn’t a whole lot left, but that makes what is left that much more valuable and meaningful. And I submit that its highest and best value is as wilderness, or at least natural.

Transmitting electricity from mountains to cities involves high capacity transmission lines, like TRAIL, which will degrade even more natural land. Further, transmitting wind generated power over long distances is very inefficient. Much of the generated power is lost along the way; only a fraction of it actually gets to the city.

With mountaintop removal devastating wide areas of West Virginia, why in the world would you want to see what little natural areas there are left in the state crowned with wind turbines poking their way above treeline into the sky? Can’t one area of West Virginia remain free of blight? Can’t we have a sliver of wilderness left?

If wind power would stop mountaintop removal, I could understand why people would be for it. But wind will never provide more than a fraction of our electricity needs no matter how many ridges are ruined with towers. There are two things that are generated in the mountains of eastern West Virginia that we sorely need: water and forests that store carbon dioxide and give off oxygen. Stripping trees off a ridge and planting wind turbines will have the effect of lessening the water retention capabilities of the mountains, and obviously have negative impacts on global warming.

It’s time for the cities, my back yard, to take on the responsibility for producing the power we over-use. If we are the energy hogs, then we should bear the burden here, in the cities. And if we are not willing to bear the burden, then guess what? The lights should start going out.

It seems to me that for too long development of urban America has plundered the wilds of West Virginia for its needs. It pains me to see native West Virginians pointing fingers at one another, grasping for panaceas for problems they have not created. Wind power is no panacea. It is not going to save one single coal bearing mountain from being plundered. It will never be more than a drop in the bucket if we depend on all the mountain ridges in West Virginia. Build the generation capacity where it will be used. That is the message that West Virginians should be rising up and shouting in unison.

And why would power companies not locate wind generators in cities? Because too many residents – the real NIMBYs – would object to it and the cost would escalate because of court fights. West Virginians should have enough pride in place to fight for your own back yards and shift the burden back on the people burning the lights all night long. All of West Virginia should rise up and oppose the abortion of mountaintop destruction, done for a few brief hours of power in some city that looks like a Christmas tree on steroids. The problem is my back yard and the solution should not be more blight in West Virginia. We destroyed our natural land long ago. What would a few more wind turbines mean here?

Frankly, West Virginia’s answer to the rest of the country should be to cut us off. The cities are what is destroying West Virginia. The mountains define West Virginia, known after all as the Mountain State. If West Virginia wants to market something, market the mountains as places where people can go to find a piece of nature – hike a trail, fish a stream, look off at ridge after ridge to infinity with no sign of human blight.

Whenever I travel to West Virginia, I cannot help but spend some of my Yankee dollars. Gas, food, lodging, maple syrup, sausage, produce from farms … I leave the Mountain State with less money than I enter it with, trust me. But if all you have to offer is wind turbines stretching from horizon to horizon, or mountaintop destruction, then somebody else is going to get my money.

Mountain ridges are not desert. They are not barren. The rain forests of eastern West Virginia have more value than anybody could imagine. The area is a natural watershed. Water is released slowly, providing water that flows to cities. The oxygen is breathed by millions. The forest is home to amazing creatures and plants that exist nowhere else in the world.

Few of us have any remote idea what amazing things can be found in the rain forests of the Monongahela National Forest. New discoveries pique my curiosity from time to time, things we have not learned in hundreds of years. Those are the things for which we should fight. Those are the things that are protected by wilderness. Those are things that may not be around much longer if we keep industrializing our last remaining eastern wilderness.

That is why I am against wind generation in the West Virginia highlands. I am saying, yes, in my back yard, not in your back yard.

My impression of West Virginia when I made my first trip to your state was that it consisted of endless wilderness that stretched on forever. Sadly that was only an illusion, a fact I now realize as I see wind turbines rearing up above the hills from too many once scenic vistas. I’ve seen mountaintop destruction at Kayford and listened to Larry Gibson and Maria Gunnoe, two eloquent people who can tell us the true cost of this destructive form of coal mining.

I’ve seen that, and I’ve seen wind turbines on the horizon from the Monongahela National Forest. And I wonder to myself, why West Virginians allow people to come into your once beautiful state and rape it. Do West Virginians see the mountains as simply something to be exploited, never mind the cost? I understand the need for economic development. But raping the mountains is not going to increase the standard of living.

Look at the blight of eastern cities. Is that what you want? Do you think urban dwellers are ennobled because of blight? I have to tell you that it has the exact opposite effect. That is why many urban dwellers seek out wilderness, to escape dreary blight. Maybe we’ve found something that West Virginians have forgotten. Maybe we prize nature over industrialization.

At the same time, we urban residents are the reason they’re building wind turbines along ridges in West Virginia, and why they’re blowing up mountains right and left. We should bear the cost, not you. It should be in my back yard, not yours. And you should not be pointing fingers at one another, but at us energy hogs who have no idea of the true human and natural cost of burning lights all night long.

George E. Beetham Jr. is a newspaper editor in Philadelphia, a
former board member of the West Virginia Highlands Conservancy,
and a believer that nature has power to heal the human
soul.

Editor’s Note: The illustration accompanying this story is a generic
energy hog. It bears absolutely no resemblance to George
Beetham, living or dead.