Appeals Court: Leave that Mountain—and Trout—Alone

Sportsmen and other conservationists found another reason to value the Environmental Protection Agency and the rule of law Tuesday, when a federal appeals court unanimously upheld the agency's right to regulate the permitting process for mountaintop mining operations - one of the most destructive mining activities ever for fish and wildlife.

The case involved the EPA's decision to revoke a U.S. Army Corps of Engineers permit for The Spruce 1 Mine, the largest in West Virginia history, which would have buried some six miles of streams with tailings from the mountaintop. The EPA said the permit violated the Clean Water Act, but a lower court ruled the agency didn't have the right to revoke a permit granted by the corps.

In overturning the lower court, Karen LeCraft Henderson, of the U.S. Court of Appeals for the District of Columbia, reasoned "The Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time … Thus, the unambiguous language of subsection 404(c) manifests the Congress's intent to confer on EPA a broad veto power extending beyond the permit issuance."

Conservation groups have long-opposed mountaintop removal mining because of its proven devastating impact on fish and wildlife habitat. The process involves literally shaving down the top of mountains and depositing them in adjacent valleys. Trout Unlimited reports the practice has buried more than 2,000 miles of Appalachian streams, and caused additional damage by introducing sediment pollution as well as altering stream hydrology and increasing flooding.

"Mountaintop removal mining practices create a survival risk for brook trout and other wild trout populations, and impede efforts to restore brook trout in already degraded watersheds," the group said. "Many streams in the Appalachian Mountains subject to mountaintop removal mining are, or historically were, habitat for brook trout. Brook trout currently live in only a fraction of their original range."

But all conservation groups were closely watching this case because of the dangerous precedent it could have set were the EPA removed from enforcing its authority under the Clean Water Act, and under other fish and wildlife friendly laws, if other federal agencies had previously acted.

Chris Wood, president of TU, said opponents of the EPA had been falsely using this case to paint a picture of an out-of-control agency stepping into areas where it didn't belong.

"Since the Clean Water Act was passed in 1972, the EPA has used its veto power on permits exactly 4 times - that's 14 times in 40 years," Wood said. "So they have used it judiciously, and only when some of the more remarkable outstanding resources I this country were put at risk. So it was very important that the (courts) affirmed the EOA's authority to do its job for the American people, when others agencies have not."

From 1985 to 2005, the Army Corps of Engineers authorized over 7,000 valley fills in central Appalachia for mountaintop removal mining and other strip mining operations, TU reported. Much of that was taking place while the Bush Administration had rolled back enforcement of buffer zone regulations that were supposed to protect riparian habitat so critical to fish and wildlife. The Obama Administration reversed that policy.

Unfortunately, this will not be the end of the story. The mine owners plan to appeal - and they will continue to get plenty of help from friends in Congress.

The GOP-controlled house, with help from coal-state Democrats, has twice attempted to remove the EPA from regulating mining. And with the coal industry facing hard times due to the arrival of plentiful and cheaper natural gas, this ruling is only expected to add fire to the political fight over coal regulation, as the Los Angels Times reported.

In fact, after the ruling Rep. Nick Rahall (D-W.Va.) told The Hill that "I will soon be reintroducing the Clean Water Cooperative Federalism Act, legislation the House approved last year to prevent the EPA from using the guise of clean water as a means to disrupt coal mining as they have now done with respect to the Spruce Mine in Logan County, West Virginia."

All of which means sportsmen and others who care about clean water need to stay focused on this issue in the weeks and months ahead.