Dylan Brown, E&E reporter
A federal judge signed off this week on a settlement agreement between the Obama administration and environmental groups over coal mining’s effect on a pair of at-risk fish species in northeastern Tennessee.
The Fish and Wildlife Service and the federal Office of Surface Mining Reclamation and Enforcement agreed to analyze under the Endangered Species Act how the endangered Cumberland darter and threatened blackside dace are affected by mining runoff.
“We hope that this review will be extended to similarly situated surface coal mining permit applications in the future,” said Jane Davenport, senior staff attorney for the group Defenders of Wildlife.
Under the settlement, OSMRE and FWS do not have to admit wrongdoing but agreed to conduct environmental analysis around several coal mines and designate an area near National Coal Corp.’s Zeb Mountain mine as critical habitat for the Cumberland darter.
The Sierra Club, Defenders of Wildlife, Statewide Organizing for Community eMpowerment and the Tennessee Clean Water Network sued the agencies in 2013 over pollution concerns surrounding several mine sites (Greenwire, Jan. 30, 2015).
The groups, which say mountaintop-removal coal mining has hurt dace and darter populations, argued that mining was causing a spike in water conductivity, or the ability of fresh water to carry an electric current. Groups and U.S. EPA see conductivity as a measure of aquatic health.
According to the groups, tests downstream from the Zeb Mountain mine found conductivity upward of 538 microsiemens per centimeter, far above safe levels below 240 microsiemens per centimeter for the darter and dace.
Environmentalists have sparred with the mining industry and coal-state regulators over whether conductivity should be used to measure pollution, with environmentalists having some success in federal court (E&ENews PM, Jan. 28, 2015).
Under the settlement, OSMRE agreed to submit biological assessments to FWS, which will review them promptly and respond. The agencies promised to make a good-faith effort to finish the work by May 1, but the agreement allows for a delay, with federal officials providing monthly status reports on their progress.
OSMRE generally oversees state mining programs, but the agency has full jurisdiction in Tennessee, which does not have its own Surface Mining Control and Reclamation Act permitting system.
The consent decree signed by both sides is the final resolution of the case, but the environmental groups retained the right to challenge the agencies’ consultation decisions.
Mary Anne Hitt, director of Sierra Club’s Beyond Coal Campaign, said that although the permits should never have been awarded, she is glad federal officials are starting to take notice of coal mining’s effect on wildlife.
She said, “Extinction of endangered species is too high a price to pay for surface mining.”
Last year, OSMRE moved to increase coordination between regulators on ESA reviews for coal mine permits (Greenwire, Nov. 4, 2015). The agency’s proposed stream protection rule also addresses the issue of protecting sensitive species.
Mining companies and some state regulators have expressed concerns about the rulemaking and ESA protections for species in Appalachia, worried about more federal oversight and slower permitting.