What’s next for mountaintop removal permit cases?

August 2, 2012 by Ken Ward Jr.

Buried at the end of another one of his anti-EPA commentaries on the latest mountaintop removal ruling, Hoppy Kercheval over at West Virginia MetroNews buries an admission that I’m sure his advertising clients at Friends of Coal are not especially happy about:

The judge did point out, however, that his decision has nothing to do with the ongoing debate about the economic and environmental impacts of mountaintop removal mining.

“How to best strike a balance between, on one hand, the need to preserve the verdant landscapes and the natural resources of Appalachia and, on the other hand, the economic role that coal mining plays in the region is not, however, a question for the Court to decide,” the judge wrote.

Fair enough. Let the public policy makers and the affected parties fight that out. And frankly, because of the destructive nature of mountaintop removal mining, it’s a tough sell for the industry.

The destructive nature of mountaintop removal? Hoppy really wrote that? The next thing you know, Don Surber and the Daily Mail are going to have a mea culpa on global warming, admitting that they’re wrong to ignore the overwhelming scientific evidence on what is probably the greatest threat facing human beings. West Virginia media’s Bray Cary already turned around on that crucial issue, to the point that his paper, The State Journal, has said it’s time for West Virginia to look beyond coal. And despite complaints from some that he didn’t go far enough, the recent statements from Sen. Jay Rockefeller about the coal industry’s public relations campaign are a significant step forward politically here in West Virginia’s coalfields.

So one question lots of people are asking is: What next? What comes now in the continuing saga of the future of mountaintop removal and coal mining in general, a debate that U.S. District Judge Reggie Walton plainly stated his ruling against the Obama EPA comes nowhere near resolving.

Well, Hoppy asked Gov. Earl Ray Tomblin about that on Talkline yesterday, and there was one especially interesting point made by the governor regarding the Walton decision:

There’s always the right to appeal by EPA. But we’ve had instances where our Department of Environmental Protection has been in court over environmental rulings that they have made. Normally when the judge says you are wrong, then our DEP has backed off. We would certainly hope that after two times that Lisa Jackson and the federal EPA would do the same.

Now, we have no idea of EPA is going to appeal or not. And if you’ve ever tried to get the Obama EPA to answer simple questions about things like this, then you can certainly understand the frustration DEP officials and the coal industry have in trying to deal with the agency. And keep in mind that we’re expecting another major mountaintop removal permit ruling from U.S. District Judge Robert C. Chambers any time now.

But for now, go back and read this part of what Governor Tomblin said again:

Normally when the judge says you are wrong, then our DEP has backed off.

Really? Well, more than a year ago a judge — in the form of the state Environmental Quality Board — told DEP it was wrong about a mountaintop removal permit, Arch Coal’s New Hill West Mine in Monongalia County. In its formal order, the EQB said that DEP wrongly ignored evidence about not only specific water quality damage at that mine site, but about the broader science showing that large-scale surface mines are degrading Appalachian streams.   The board concluded:

The Board finds that a growing body of science has demonstrated that discharges from surface coal mines in Appalachia are strongly correlated with and cause increased levels of conductivity, sulfate, and total dissolved solids in water bodies downstream from mines. The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams. The harm and significant adverse impacts include the extirpation of entire genera and the disruption of community composition crucial to functioning ecosystems.

Photo by Vivian Stockman, Ohio Valley Environmental Coalition.

So what did DEP and agency Secretary Randy Huffman do? Well, here’s what Randy said about the EQB decision:

This was the worst ruling I’ve ever seen out of the EQB as far as a lack of respect for the rule of law.

Contrary to what the Gov. Tomblin said is normal practice, DEP appealed. Kanawha Circuit Judge James Stucky sent the case back to the EQB, asking the board to simply provide a more detailed discussion of the reasoning for its decision. Now, the EQB has done that. And — even after Gov. Tomblin tried to stack the deck by getting rid of the board’s two most pro-environment members — board members have again ruled against DEP and in favor of the Sierra Club. The board’s latest ruling, made public the same day as Judge Walton’s decision, is even tougher on DEP, concluding:

Despite long-standing and abundant evidence with the WVDEP’s watershed database for biological damage … in streams draining surface mines in the West Virginia coalfields, the WVDEP has made little attempt to determine the cause of the damage, or to limit it.

And as we reported in today’s print editions of the Gazette, DEP officials are very strongly leaning toward another appeal. Gov. Tomblin says now that Judge Walton has ruled against Lisa Jackson and EPA twice in the mountaintop removal crackdown, EPA should just accept the result. Well, the EQB has now ruled against DEP twice on this mining permit — and the broader issues about mountaintop removal that it raises — so shouldn’t the same reasoning apply? Or does Gov. Tomblin think accepting two legal defeats in a row only applies if those defeats amount to wins for his friends in the coal industry?

These are most definitely not rhetorical questions.

Gov. Tomblin explained to Hoppy that he thinks the issue before Judge Walton about EPA’s involvement in mining permits was mostly an issue of “state’s rights,” which surely everyone understands is first of all a loaded term because of its historic use in opposition to civil rights and second of all is really just about weakening federal protections for things like the environment, public health, consumer rights and worker safety.

In this instance, though, we have another state agency (one with two new members picked by Governor Tomblin) who is telling DEP it’s wrong.  The West Virginia Legislature set up the process for DEP decisions being appealed to the Environmental Quality Board, and it was the state Supreme Court that spelled out exactly on what basis those appeals should be heard and decided. So this isn’t about “state’s rights” anymore.

Already, some of the leadership at DEP is grousing around that the board’s ruling wrongly spells out the state of the science about mountaintop removal. I asked Tom Clarke, director of the DEP Division of Mining and Reclamation, about some of the board’s findings on the science, and he told me:

I’ve heard some people with respected scientific opinions on this subject don’t agree.

OK. DEP lawyers had their chance during the appeal to present these people as witnesses. The board found DEP’s evidence and arguments unpersuasive, concluding that expert testimony about stream damage presented by the Sierra Club’s witnesses — including Margaret Palmer of the University of Maryland and Emily Bernhardt of Duke — “was un-refuted.”

Yesterday, I had quite a long talk with Randy Huffman, and he makes a fair point. Science alone doesn’t decide this issue of how much mountaintop removal, if any, West Virginia will have. Science is one tool. So is economics. It is a policy decision in many ways. In other words, it’s a political decision. Randy explained his thoughts on that in our print edition story:

I think you have environmental impacts anytime you turn a shovel. There is environmental degradation that takes place with mining — significant is a nebulous term that people use based on what they believe. That’s a term people use to promote a political agenda.

And you can certainly count Randy Huffman among those who believe EPA has some unspoken, unreasonable, irrational political agenda regarding coal. He told me:

EPA appears to be trying to curtail coal mining, and they latch on to whatever is most convenient for their argument.

But, I asked Randy, isn’t it also true that many people believe political leaders like Governor Tomblin are doing nothing but trying to protect coal, and latching onto whatever is most convenient for that argument? Randy acknowledged, though — and this didn’t make the print edition — that politics play a role in how the state ultimately makes such decisions about regulation of coal mining (or any other industry, for that matter):

Yes. I work for people who are adamant and ardent supporters of coal mining. That is what it is.

Sure, and part of what it is happens to be one factor that leads many people across the state to not trust DEP as an organization, even though if they happen to actually know somebody who works there they will probably admit the agency is made up of hard-working fellow West Virginians who want to do a good job and do what’s best for the state.

Randy explained that what Governor Tomblin meant is not that EPA should not appeal the decision from Judge Walton. EPA has every right to do that, Randy said. What Randy said he’s watching for is if EPA — despite Judge Walton — continues to try to basically use its water quality guidance to keep blocking or at least slowing down mining permits in West Virginia.

And Randy offered the example of the lawsuits against DEP over its failure to properly limit water pollution discharges from abandoned mine sites it controls through its Special Reclamation Fund. After losing the court case, Randy noted, DEP worked out a deal with citizen groups for a schedule to fix the problem. Keep in mind, though, that DEP settled the matter only after losing not only a second district court case, but also a federal appeal.

Another thing Randy told me is that what happens next in this seemingly never-ending dispute over mining permits is really up to EPA, and whether the Obama administration wants to appeal Judge Walton’s decision or live with its results, by giving DEP its authority and taking a lesser role in the permit review process:

I think the ball is in EPA’s court.

Clearly, though, the ball is also in DEP’s court.  Gov. Tomblin could tell DEP not to appeal the EQB’s ruling, and to just live with the results, and improve its permit process in the manner the board ordered. Randy could make that decision on his own. Though after talking to him this morning, it’s obvious that isn’t going to happen. Randy said DEP will appeal. Certainly, DEP wants to challenge a small portion of the EQB ruling that mandates the state use the now-nullified EPA guidance document on conductivity pollution. But it sounds like DEP is also going to more broadly challenge the entire board order again. Nothing the board’s new and more detailed order, Randy had this to say about the latest ruling:

The EQB all of a sudden obtained vast amounts of expertise that they never had before. They got really technical. [It] almost makes me wonder if the EQB had some help writing that.

(Just for the record: The three EQB members that ruled against DEP have Ph.D.s in geology, engineering and microbiology. One teaches environmental studies at Shepherd University, the other environmental science and Marshall University, and the third is dean of Marshall’s College of Science.)

So, rather than conducting the sorts of pollution testing the EQB recommends and adding the kinds of discharge limits that testing shows are needed in future mining permits, the DEP is going to spend public resources challenging that mandate in circuit court and, perhaps ultimately, the state Supreme Court.

At the same time, the other thing that’s in DEP’s court is how it moves in implementing a legislative mandate to come up with a new rule that spells out how state officials will enforce the narrative water quality standard that is at the heart of the New Hill West permit case.

Suppose, for example, that instead of waiting to see some of the nation’s top experts on mining damage to streams across the courtroom from them, DEP officials had a public roundtable, inviting those experts in to present suggestions on how to do a scientifically valid implementation plan for the narrative water quality standards? Or suppose DEP scheduled a scientific hearing, where experts who have published research on mining’s impacts on water quality could educate the public on their findings?

Part and parcel of the political decision that folks like Governor Tomblin and his predecessor, now-Sen. Joe Manchin, make to not enact much tougher restrictions on surface mining is their continued denial that this mining is doing any damage, either to the natural environment, or to the people who live near these operations.  Recall, just for instance, how Governor Tomblin tried to pretend during last year’s debate that there was only one study — not more than 20 — that suggested living near mountaintop removal puts residents at a greater risk of serious illnesses:

I think that was one report that was done. Before I would believe it, there would have to be additional studies done to prove that fact.

Randy Huffman is right that deciding how much damage from mountaintop removal is too much — how much water pollution, how many increased health risks — is considered acceptable boils down to a political decision, made by elected officials and the agencies they appoint. And Randy’s also right when he explains that it is increasingly difficult for anyone to tell fact from fiction in the furious debate over coal mining issues. Randy was talking with me yesterday about Sen. Rockefeller’s speech a few weeks ago, and said:

I wouldn’t disagree with what he said. But he missed a big side of the argument. Both sides are guilty of the same thing. Sensationalistic rhetoric and half-truths, those are tools used by both sides of this argument. I really believe that it’s unfortunate.

What’s also unfortunate is that there’s a body of peer-reviewed science that is left out of the discussion by most government officials and media outlets, perhaps because disagrees with the political goals of the coal industry and West Virginia elected official.  Right now, about the only answer to that is for the coal industry to put up $15 million to produce its own reports to show us “what the science really shows.”

Randy told me that he’s confident that if he told Governor Tomblin DEP had become convinced that mountaintop removal was degrading the state’s environment or harming public health that the governor would insist something be done about it. I’m sure many people who read this blog will find that hard to believe.

DEP has gone to court to insist on the right, the authority, and the responsibility to make such decisions. But there’s a clear perception among many in the public that the agency, controlled by a pro-coal governor, tips the scale in the industry’s favor. One way to combat that — and to perhaps begin to build more public trust — would be to publicly bring in key scientific experts for a session about what the current data shows about mining damage to the environment and public health. DEP could do that, or it could just wait for the next permit appeal and see those experts on the other side of the courtroom – again.

21 Responses to “What’s next for mountaintop removal permit cases?”

  1. onelump says:

    isnt it interesting that the only experts that Mr. Ward wants the DEP to bring in and listen to are the ones that are paid expert witnesses for the environmental groups that sue WVDEP and the coal industry? When is there ever a discussion on the body of science that derives those conclusions? If anyone dares to disagree with a study produced by an “expert” funded by Appalachian Mountain Advocates, then they have a political goal to protect King Coal. Any study that disagrees with that groups conclusions or provides different data is obviously funded by King Coal or has political goals to protect it. A very nice, one sided, situation that forgoes objectivity and provides only one ending………the political ending that the enviros want!

  2. Ken Ward Jr. says:


    You raise a good point … if DEP actually had such a forum, it seems that any scientist who has published their work on this issue in a peer-reviewed journal would be someone whose expertise would be helpful.

    If scientists disagree with the conclusions of the published papers, then the way for them to challenge those findings is not to put out self-published industry consultant reports, but to submit their work to scientific journals for peer-review and publication.


  3. John Doe says:

    Ken, you keep referring to the permit in the EQB case as a mountaintop mining permit, but it’s not.

  4. Ken Ward Jr. says:

    John Doe,

    As I believe has been noted in print edition stories, this was in fact not an appeal of the SMCRA or surface mining permit, but of the NPDES permit. My apologies if that was not clear.


  5. John Doe says:

    No, my point is that the discharges authorized by the npdes permit are not associated with “mountaintop mining,” but just regular surface mining activities.

  6. Ken Ward Jr. says:

    John Doe,

    In some ways you raise a fair point. In others, it’s almost become a distinction without a difference … especially if you want to use the phrase “mountaintop mining” as opposed to what I actually wrote, which was “mountaintop removal.”


    Because “mountaintop mining” is a term somebody made up because they didn’t like calling it “mountaintop removal,” just like they didn’t like calling it “strip mining” so they called it “surface mining.”

    The only definition really that I’ve seen of “mountaintop mining” was part of the federal government’s EIS study, http://www.epa.gov/region3/mtntop/pdf/VIII_Glossary.pdf … It’s very broad, and certainly this particular mining operation would fall under that definition.

    Is this a mountaintop removal permit? Well, that term – unlike the detoxified “mountaintop mining” — is defined in SMCRA, as the glossary to the EIS says, as:

    “.. A type of surface-mining operation that extracts an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill.”

    You’re correct in that I don’t believe that the DEP SMCRA permit lists “mountaintop removal” as one of the activities approved for this operation. It lists area mining and contour mining, if I remember correctly.

    However, if you look at the print story where I describe this particular mine, I wrote:

    “EQB members ruled in a case in which the Sierra Club challenged DEP’s approval of a water pollution permit for Arch Coal subsidiary Patriot Mining Co.’s New Hill West Mine along Scotts Run near Cassville in Monongalia County.”

    I didn’t in fact in that story refer to this as a mountaintop removal operation. I did make it very clear that the ruling in this instance impacts greatly on how future water discharges from mines that are mountaintop removal operations would be permitted.

    Now that I’ve hopefully successfully talked around this a bit, maybe I’ve answered your question. Maybe not.


  7. Petra and John Wood says:

    John Doe – The New Hill West permit proposes to remove an entire ridge, fill stream channels, and mine out 2 seams of coal. If it quacks like a duck it must be a duck. Regardless of what you call it, the mine will affect many people.

    Ken, we agree that here, in West Virginia, politics is driving the DEP permitting process. We also agree that many DEP employees who may want to do what’s best for the environment are dissuaded from doing so by their political leaders. But Randy Huffman, Tom Clarke, and Earl Ray Tomblin need to remember that real people’s quality of life are also at issue here. We were very pleased that EQB made their decision based on science and not on politics, and we suspect that many of the other 500+ families who live near the proposed New Hill West Mine breathed a sigh of relief that our air, water, environment, and quality of life now have a better chance of being protected.

  8. Dianne Bady says:

    onelump – If there ARE experts with peer reviewed scientific studies that refute any of the studies pointing to ecosystem or human health damage relating to mountaintop removal, then why doesn’t DEP, or the coal industry, or somebody, come forward with such studies?

    onelump you stated “If anyone dares to disagree with a study produced by an “expert” funded by Appalachian Mountain Advocates…”
    The studies that make a connection between MTR and serious health problems were conducted by scientists at WVU, and published in peer reviewed scientific journals. Appalachian Mountain Advocates had nothing to do with those studies.

    I find nothing in Ken’s writing to support this suggestion of yours
    “that the only experts that Mr. Ward wants the DEP to bring in and listen to are the ones that are paid expert witnesses for the environmental groups that sue WVDEP and the coal industry?”

  9. BioVTJunkie says:

    The crux of the issue is this, what is an acceptable impact to utilize our natural resources? In the context of your home, if you could not cause a shift in the organisms that called your neighborhood home, could you build there? Could you build the roads we all use? What about shopping centers? ANY human development causes a shift in the natural inhabitants to more those more tolerant to disturbance. So if causing such a shift is not allowed, what can be developed? It may be ideal to think we can live our lives and not cause impacts to the natural environment but it isn’t realistic. In order to maintain our lives as we all like to live them it is unfortunate but undeniable that we must displace the natural order. The question is, how much will is acceptable. The science to date on MTM/VF points to an increase in salt concentrations in stream and a change from intolerant EPT taxa to more tolerant organisms. So what? The shift has been shown repeatedly but what has NOT been shown is WHAT that means. Do we want to protect insect larvae for the sake of protecting insect larvae? Or is there an impact to the food chain that this shift creates that is irreversable and of such importance that we should change our current methods of resource extraction?

  10. BioVTJunkie says:

    We can and should protect natural conditions to the best of our ability but this whole discussion about the science of MTM/VF is laughable. The EPA and the enviros want to protect these aquatic larvae as though they are endangered and the loss of them will lead to irreparable harm. And though the shift is undeniable, the cost of the shift is undefined. Why should you Ken care if the mayflies that live in a stream go from being ephemerella to baetis? How does that affect YOUR life? Does it make the stream a dead zone that it now has shifted from one type of mayfly to another? Is it worth denying 100 miners their livelihood? Does anyone but an aquatic biologist even notice? My educated guess is that the answer to that is no.

  11. Soyedina says:

    BioVTJunkie aren’t you being a bit disingenuous?

    What is an acceptable impact to utilize our natural resources?

    Fortunately, we don’t have to answer this question all over again, from scratch, and it would be extremely silly to pretend to that is what is necessary here. The Clean Water Act and SMCRA provide those guidelines, don’t they?

    The science to date on MTM/VF points to an increase in salt concentrations in stream and a change from intolerant EPT taxa to more tolerant organisms. So what? The shift has been shown repeatedly but what has NOT been shown is WHAT that means.

    Well, it’s not just “salt concentrations” it’s a whole host of solutes and habitat changes. And it’s not just “a change from intolerant to tolerant organisms”, it’s the wholesale extinction of entire orders of aquatic insects from some impaired reaches. That’s just one of the “what that means”. I am sure that you are not serious when you say things like “this is about insect larvae for the sake of protecting insect larvae”, particularly if you use these streams for recreation or you like to catch fish from them which aren’t reminiscent of the Simpsons.

    Or is there an impact to the food chain that this shift creates that is irreversable and of such importance that we should change our current methods of resource extraction?

    As a matter of fact, there sure are!!! I am not sure that these are indeed “educated guesses” but the answers to your questions have been provided in the peer-reviewed scientific literature repeatedly and in many different fields. If, as you say, this discussion is “laughable”, can you tell me why the coal industry cannot demonstrate this in the only forum where this matters, the scientific literature? The absence of any data to refute the millions of words that have been written about the degradatory effects of surface coal mining in Appalachia is telling, what is frustrating is that you seem willing to ignore all of that substance in favor of rhetoric about “mayflies over miners”.

    I’m offering you the friendly suggestion that is an unethical tactic. It’s one thing to have an opinion about what the laws “should be”, it’s entirely another to pretend as if we don’t know the many things we know in order to bang the drum for your opiniona bout what the laws “should be”. Wouldn’t you agree?

  12. BioVTJunkie –

    I think you are missing an important point here. Benthic macroinvertebrates or aquatic larvae aren’t necessarily important for their own sake. They are indicator species. They are tool to measure the overall health of the stream. We are ultimately talking here about “shifts” in aquatic species. We are talking about the collapse of healthy aquatic ecosystems as a whole. Have you been to Twentymile Creek? It is dead and, according to Dr. Margaret Palmer, one on the country’s leading stream ecologists, it is unlikely to come back.

    I also think much of the community concern is around public health. This study published 2010 found that areas with degraded aquatic communities were also more likely to have higher rates cancer in West Virginia.

    The concerns about the damage MTR is doing in Appalachia ultimately have little to do with mayflies, and I think attempts to paint it that way are deeply disingenuous.

  13. Betsy Lawson says:

    BioVTJunkie –

    What difference does it make to me if mayfly larvae lives or
    dies in our streams? Since I’m not a trout, it doesn’t directly
    affect me. However, if mayflies cannot survive in a stream, it
    might suggest that the water isn’t safe for any other living
    thing. Do you want your drinking water to come from a stream
    that poisons what lives in it?

    Since streams flow and empty into other streams, what happens
    in one stream does affect whatever is downstream. The end of
    mayflies in one stream might mean more cancer cases downriver.

  14. BioVTjunkie says:

    Unfortunately that just isn’t the case. The EPA IS trying to protect specific taxa. I have heard and seen it first hand. And I have surveyed a large portion of Twentymile Creek personally and with all due respect to Dr. Palmer it is not dead. As a matter of fact I have personally found multiple sensitive taxa in abundance in Twentymile. There are certainly stretches of Twentymile that are impacted, but saying it is dead is sensationalist. But that is what I have come to expect out of scholars with agendas like Dr. Palmer.

    And furthermore I can say almost unequivocally in my experience that streams with residential development are significantly worse off than mined streams when current mining practices are used. Eric Merriam did a study in Pigeon Ck that shows this very thing. Mined streams were impacted but the residential areas were significantly worse. Yet I don’t see activists such as yourself protesting the worst impacts on the ecosystem, the people that live along them. Maybe you could shed some light as to why not.

    And while I am intrigued by Hendrix’s data analysis, I am also very skeptical that the conclusions he draws can hold up to further data mining efforts, we shall see. There are so many variables in human disease development that there is no possible way that all of the confounding variables (drug abuse, lifestyle choices, etc.) were addressed, especially when you consider the source of the numbers on those sensitive lifestyle issues, but that analysis will go on and like I said time will likely tell.

    And I would offer a suggestion, look at the details of the taxa shift. It is not at the point of ecosystem collapse or anything approaching it. It is merely the loss of sensitive mayfly genera. That is it. Look it up.

  15. Petra and John Wood says:

    BioVTJunkie –

    As Mathew said, it’s not just about the bugs in the stream … they are an indicator of the overall health of aquatic systems and how mining affects the environment as well as people’s health and quality of life. Like the canary in the coal mine, when the bugs die it tells us there is a problem. And as Ken has reported, several studies have documented the link between mining and human health.

    You ask is the loss of stream biota worth 100 miners losing their livelihood. I ask is the loss of the 22 mining jobs associated with the New Hill West permit worth the impact on the 500+ families living near the mine that will have to deal with polluted air and water as well as noise and light pollution? Why is it acceptable for the mining companies to externalize the environmental and human health costs of mining onto the backs of families who live near these mines?

  16. Soyedina says:

    The EPA IS trying to protect specific taxa

    Which taxa? “Specific taxa” could mean many things, up and to “every living thing in the stream”, or “all of the species in the entire order of mayflies”, or “a single species”, could you explain?

    And furthermore I can say almost unequivocally in my experience that streams with residential development are significantly worse off than mined streams when current mining practices are used. Eric Merriam did a study in Pigeon Ck that shows this very thing.

    Presumably you are talking about Merriam et al. 2011, but that study did not find that “streams with residential development are significantly worse off than mined streams when current mining practices are used”. For one, there was no comparison among mined streams with “current mining practices” and [other] mining practices.

    Secondly, I’m not sure what basis you have for claiming that “streams are significantly worse off”, given that Table 5 of Merriam et al. reports the additive model parameter estimates for the effects of mining, residential and combined index (predicting the WVSCI and mayfly metrics), and these parameter estimates are not statistically different. In order for your assertion to be supported wouldn’t the estimate for residential be higher than for mining?

    Yet I don’t see activists such as yourself protesting the worst impacts on the ecosystem, the people that live along them. Maybe you could shed some light as to why not.

    Tu quoque arguments are uncivil, particularly when the putative factual basis for the assertion of what are the “worst impacts” is in conflict with the claim.

    Interestingly, given the discussion that Armored Face Conveyor and I had recently, the data in Merriam et al. 2011 also support the value of the EPA conductivity threshold (500 uS) as a significant predictor of impairment, as measured by the WVSCI (Figure 7, 257 uS predicts the WVSCI impairment threshold).

    Again, although the macroinvertebrates collected in this study were identified to genus, the authors did not use those data in most of the metrics, settling for the family level index instead. It’s long been understood that treating large numbers of species as a “single taxa” or a group masks quantitative and biologically meaningful variability among genera, species and populations. I understand that the genus based methods are available, why are they not being used?

    There are at least 119 mayfly species known from West Virginia, a number which is certainly an underestimate. The claim that the elimination of this entire order from streams is “just a shift from intolerant to tolerant taxa” is a distortion of the fact that macroinvertebrate indices are an extremely biased understimate of the true turnover in the distribution and abundance of species at a site, even those indices based on genera which necessarily treat multiple species as a single taxa.

    The main takehome result of Merriam et al. 2011, it seems to me, was not “biological integrity of streams draining residential areas are worse than areas with current mined practices” (that’s not one of their results) but that, as they put it

    The consensus within the scientific community is that current mitigation practices are insufficient to compensate for the ecological losses resulting from large-scale surface mining (Pond et al. 2008, Palmer et al. 2010). Traditional mitigation actions tend to focus on stream habitat structure and stability, but the predominant effect of mining is degraded water quality. Therefore, we agree that the current approach to permitting and mitigation should be restructured. The only caveat that we would add is that an overhaul of the management process should include novel approaches to addressing nonmining related stressors within the watershed. Our studies in Pigeon Creek make it clear that poorly managed residential devel- opment is an important source of impairment, even in a watershed that has been intensively mined. Conse- quently, managing mining impacts independently from managing other sources of impairment may do little to improve conditions throughout much of the central Appalachian coalfields. We strongly encour- age development of novel approaches to managing impacts from new mine development that empowers local communities to address the multiple stressors affecting their water resources.

    So, mining causes impairment and residential development with straight pipes and elimination of riparian zones causes impairment, with additive effects, and we should be concerned about both. Hard to disagree with that! I don’t see how that gives one the presumptuous ethical high ground to imply that “activists” are somehow being inconsistent or arbitrary by not organizing for every single ecological stressor at once. Perhaps you can shed some light as to why you would suggest this?

  17. Soyedina says:

    I suppose a better question than my first attempt would be “What happens to this analysis when the genus-level metric is used?”, sorry.

    The mined and residential sites had similar EPT richness, and the combined sites were lower, reference streams were higher. The total taxa richness was similar for mined, residential streams and reference streams but lower in combined impacts.

    The question of “which index do we use” is an operational question, because indices are fine tuned for ecoregional adjustments in states etc. But, the values of an index, any index, are a realized outcome of the local “species pool”.

    EPT species richness (and species andphyletic diveristy in many other taxonomic groups) have longitudinal patterns, and interact with many curious factors at multiple scales.

    Those patterns are a the outcome of the way that individual organisms constituted in discrete local populations interacting with each other and the environment, occupying the area where impacts are occurring.

    Whether we can operationally define that species pool to an individual doesn’t matter, either way, but we know biologically that these (or any) metrics can’t fully capture this ecological aspect of species turnover. And we know that these underlying patterns of species geographic distributions are what make it possible to have predictive models using those types of data.

    Greg Pond pointed out (p. 728 “metric performance” how disparate patterns of the generic richness of different families could influence the performance of some of these metrics, further justifying the use of the genus based approach.

    Genus-level data offer better responsiveness than family- or order-level data because of the larger number of taxa identified and the more accurate tolerance values assigned to genera (Lenat and Resh 2001, Chessman et al. 2007). Differences in total taxon richness might be minimized because generic richness within individual invertebrate families (i.e., low genus:family ratios) seems to be lower in small Central Appalachian streams than in larger warm-water systems. Therefore, family-level taxon richness offers a close approximation to genus-level taxon richness in these small Appalachian systems. Exceptions to this are, for example, the families Chironomidae, Baetidae, Ephemerellidae, Heptageniidae, Hydropsychidae, El­midae, and Perlodidae. Some of these same genus-rich families contain genera with a wide range of pollution- tolerance values (Blocksom and Winters 2006). This fact was evident in the comparison of genus- and family-level BI values. The family-level BI will be less sensitive than the genus-level BI if genera within a family have a broad range of tolerance values.

    And, by obvious extension, if there is this range, among species within genera.

    My point has been to demonstrate that the suggestions that “EPA just wishes to protect certain taxa”, or to imply that % tolerance is the appropriate sort of metric required to comply with part c of the Clean Water Act Section 404, cannot be based upon the support of that paper (Merriam et al. 2011).

    But the larger question you identify, shouldn’t society have the prerogative to adjust the values of what they deem to be acceptable ecological impact, I absolutely agree. I just think that this should be done acknowledging the full weight of the scientific evidence that speaks to the situation and it’s alternatives. Since that question is socially and to some extent democratically answered, it will never go away.

  18. Soyedina says:

    Matt, do you have a quote or citation from Dr Palmer about “Twentymile Creek being dead” in specific, or was that a reference to her general and more recent observations that the restoration and mitigation of the impacts of MTR on the habitat, water quality and biological integrity streams is currently feasible?

  19. Rob says:

    The most generic response to the publication of peer reviewed science showing significant degradation to streams below mining operations is that a balance must be struck between stopping pollution and economic activity.

    With Economics also being a science, I ask where are the peer reviewed studies on the economic impact of these specific permitting actions and policies?

    The fact that statues regulating coal mining don’t provide agencies with a clear authority to issue or deny permits based on what the appropriate balance is between environmental protection and coal mining is a barrier to this discussion. Another barrier is that there does not appear to be a accepted neutral venue for this discussion.

    I suggest that a well facilitated forum be held on this question to discuss what is best for WV based on the science the facts and the law. However I just don’t know who could effectively hold such an event, as there does not seam to be a neutral moderator and venue all the sides could agree on. Maybe I am wrong…Maybe the some of the charleston media would be interesting in hosting such an event.

  20. janet Zerbe says:

    WV DEP can do things right now to improve the quality of life for West Virginians who live near coal mining site, without even adding any new regulations. There are currently regulations that require the coal trucks to be sprayed down before they enter the highway to prevent coal dust from being spread all over the roads and onto the houses where West Virginians live along those coal roads. Talk to the people along Cabin Creek Road near Leewood and talk to them about being unable to sit on their own porches because of the dust. Talk to them about the noise from coal trucks all night being loaded with and transporting coal, keeping them from getting a decent night’s sleep. Talk to them about dodging coal trucks on the highways, seeing trucks that are supposed to have tarps covering them, but never have a tarp over them to keep dust down, keep rubble from falling onto the roads and sides of the roads. Talk to them about trucks so overloaded, that they drive 5 miles, 10 miles an hour, so people pass them so they can get to work on time, then they risk causing accidents themselves. Your blog is a wonderful site for information on coal in West Virginia, but somebody at the ‘state’s newspaper needs to get out of the office and interview people who live near the sites. You may find many who are afraid to speak on the record, because some people who complain are looked upon as the enemy and even threatened.

  21. Soyedina says:


    my last comment should have been “observations that the restoration and mitigation of the impacts of MTR on the habitat, water quality and biological integrity streams is currently not feasible?”

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