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Obliterating Clean Water
Published on Sunday, April 7, 2002 in the Washington Post
Obliterating Clean Water
by Robert F. Kennedy Jr. And Joe Lovett
 
The ancient mountains and pristine streams of Appalachia are being destroyed by a form of coal mining known as "mountaintop removal." The name all too literally describes this devastating practice in which mining companies blow off hundreds of feet from the tops of mountains to reach the thin seams of coal beneath, creating hundreds of millions of tons of waste that is then dumped into nearby valleys and streams.

The waste from mountaintop removal mines has buried forever many hundreds of miles of the region's streams. The extreme noise and dust generated by the blasting from these mines destroys generations-old communities adjacent to the mines. Life near these mines becomes unbearable; citizens are forced to abandon their communities.

None of this environmental damage would be possible without the approval of the Army Corps of Engineers. Huge mountaintop removal mines require enormous waste disposal areas. Because of the mountainous topography of Appalachia, the only place to dispose of so much waste is in streams. If mining companies were not permitted by the Corps to bury streams under their waste, the mines would have to be smaller and less destructive.

Remarkably, the Corps has been permitting coal companies to dispose of mountaintop removal waste into streams for years, even though the agency has had no legal authority to do so. When asked why the Corps has been illegally approving the disposal, one Corps official testified that the agency "just sort of oozed into it." Now, rather than enforce the law, the Bush administration is poised to change the law to accommodate the illegal activities of the mining industry.

The change is meant to legalize the largest mountaintop removal mines and to insulate coal companies from the effects of citizen lawsuits, filed under the Clean Water Act, challenging this obliteration of streams. The Bush administration's plan is to change a clean-water regulation that prevents wastes such as these from filling waters of the United States. The administration has publicly stated that it plans to finalize this rule change in April. If it does so, this could be the most significant weakening of Clean Water Act rules since the law was passed.

Congress adopted the Clean Water Act in 1972 to protect the nation's waters. The very first sentence of the law declared this goal: "It is the objective of this Act to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." No activity could be more inconsistent with protecting the integrity of waters than destroying these precious resources by burying them under waste -- yet that is exactly what the Bush administration proposes to allow.

The rule the Bush administration wants to change defines the scope of the Corps of Engineers' ability to issue permits under the part of the Clean Water Act that regulates filling wetlands, streams and all other waters. The Corps can issue permits to allow companies to fill streams, wetlands and other waters for development purposes. But the current rule expressly forbids the Corps from allowing the use of waste material to fill waterways. It is this waste exclusion in the existing rule -- adopted in 1977 under the Carter administration -- that the Bush administration wants to delete from the law to let mining companies dump their wastes into streams.

The Bush administration rule change will create a loophole in Clean Water Act regulations big enough to drive a coal truck through. Other industries, including hard-rock-mineral mining operations, demolition companies, waste-disposal operations -- all will be able to take advantage of this loophole, and they, too, will be allowed to bury wetlands, streams and other waters with their wastes.

Two years ago, the Clinton administration proposed changing the waste exclusion because of political pressure brought on by a decision in a federal court case in West Virginia that questioned the legality of Corps permits for waste disposal from mountaintop removal coal mining. But more than 17,000 individuals, dozens of members of Congress and national environmental groups all objected to the environmental havoc that would result from allowing waters to be filled by industrial wastes. In the face of this overwhelming opposition, the Clinton administration wisely did not change the law. Unfortunately, the Bush administration now wants to ignore the public's wishes and revive this bad idea.

Robert F. Kennedy Jr. is president of Water Keeper Alliance in White Plains, N.Y. Joe Lovett is executive director of the Applachian Center for the Economy and the Environment in Lewisburg, W.Va.

© 2002 The Washington Post Company

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