West Virginia DEP Takes New Approach to Mountaintop Mining

The West Virginia DEP Mining Office has experienced more than its share of frustration over the past year. EPA has held up Clean Water Act Section 404 permits (that were issued to mountaintop mines by the Corps of Engineeers and water quality-certified by the DEP) on the grounds that the mining plans did not adequately consider the ecological and environmental effects of the mines. The DEP was understandably nonplussed by this new approach, especially the silence of EPA when DEP asked what sorts of mountaintop mining plans would be approved by EPA. A lot of time has been spent by the DEP trying to figure out what EPA wants, and I assume that is due to the fact that EPA is still trying to figure out exactly what it wants.

It appears that the WV DEP has changed tack and is going to accept that only more limited mining plans will be accepted in the future. In a report by Ken Ward of the Charleston Gazette today, Randy Huffman, Secretary of the DEP, said he is going to develop new rules for the issuance of permits that include valley fills. While EPA has not, to my knowledge, issued clear guidance as to what it expects for valley fills, the DEP has had enough experience working with EPA over the past year to learn what sorts of projects EPA is likely to approve and what it will not. As Director Huffman says, it makes no sense to issue permits that are consistent with state and federal laws, if they will only be rejected by EPA applying a different interpretation of those laws.

Expect mountaintop mines that have smaller footprints and that greatly reduce the amount of fill going into streams. Also, my guess is that you'll see more insistence on a return to aproximate original contour, or AOC, which means there will be less flat land left for future development. That's unfortunate, because despite what some may think, there's still no shortage of mountains in the Mountain State, and there is still a need for flat land on which to develop a post coal economy in the southern coalfields.