The U.S. Environmental Protection Agency just posted a new guidance document for Appalachian strip mining on its Web site.
Neither EPA nor the Army Corps of Engineers have formally announced the issuance of this guidance, which appears to have been posted pretty late on a Friday afternoon.
But the issues dealt with in the guidance are the same as those raised in a March 2007 ruling by U.S. District Judge Robert C. Chambers: Whether government agency reviews of mining permits adequately consider impacts on not just the “structure” of streams, but also the important ecological “functions” served by those streams.
That decision by Judge Chambers was subsequently overturned by the 4th U.S. Circuit Court of Appeals, and was being appealed to the U.S. Supreme Court by environmental and citizen groups. (Recall also that there were very strong dissents issued in the 4th Circuit to that ruling overturning Judge Chambers).
The new guidance spells out two requirements concerning two important regulatory provisions:
First, a determination should be made concerning the nature and degree of effect the proposed discharge of dredged or fill material will have on both the aquatic ecosystem structure and ecosystem function, and
Second, compensatory mitigation requirements must be commensurate with this determination.
The guidance states:
Our shared goal is to reduce environmental, water quality, and public health adverse effects associated with surface coal mining and to ensure the effectiveness of mitigation for unavoidable impacts. Key to this effort, in our judgment, is improved availability of science-based tools to determine the ecological functions of high gradient streams.
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What’s being required could have been required by states and/or the federal Office of Surface Mining had either chose to do so.
The Surface Mining Control and Reclamation Act — signed into law on August 3, 1977 — requires that coal mining and reclamation operations “minimize disturbance to the hydrologic balance” and “prevent material damage.”
The EPA and USACE can mandate that the safequards being imposed by this new guidelines be incorporated into the SMCRA permits too. Doing so makes it encumbent upon bith WVDEP and OSM to assure compliance, otherwise, neither agency has the authority or responsibility to do so.