DEP’s Choice:  Spring Forward… or Fall Back.

We all know what to do with our clocks this weekend, thanks to the clever saying in the title.  For the Department of Environmental Protection, in determining how to protect our water resources from underground coal mining, the choice is equally distinct.  DEP has two major sets of regulations by which underground coal mining is supposed to be governed, the regulations that deal specifically with coal mining, and the other laws protecting our resources, like the Clean Streams Law and water quality standards.  They shouldn’t differ much, but if they do, usually the more protective laws should govern.  In this case, the mining law, [link to Act 54],  says that nothing in that law “supercedes” the Clean Streams Law and its regulations [link to “outlaws” PU]. 

But DEP has been relying on the coal mining regulations to protect water resources and the results have been less than happy for the resources.  Streams are drying up and “pooling” because of subsidence, according to DEP’s own information. [links to Act 54 report and Act 54 report supplement].   That is because the mining regulations only require that “perennial” streams be protected, and the definition of “perennial” allows coal companies to impact a lot of streams.  After citizen complaints (and a 60-day Notice of Intent filed by us [link]), DEP had to act. 

With much hoopla last fall and this spring, DEP fined a company for drying up a stream, and then has required them to get a stream “encroachment” permit before they undermined more of the same stream.  DEP says this will result in underground coal mining being treated “like any other business or activity” [link to Hess’s LTE in the O-R].  That’s a claim worth examining.  We took a look at the permit file for the one encroachment permit issued thus far.  We were not encouraged, because it appears that DEP wants to limit the types of “surface waters” that get protection.   

Go to southwestern Pennsylvania’s hills and hollows, and you should find plenty of little springs on the hillsides.  These support aquatic life, create conditions for particular plants and animals, and serve farms and homes with a supply of drinking water for livestock and people.  The Clean Streams Law and the water quality standards consider “springs” as “waters of the Commonwealth” and “surface waters,” respectively.  They should get protection under those laws.  And they do in most cases.

But the mining regulations consider them to be “groundwater,” and they can be affected, even dried up.  If people use them, the coal company replaces them with a “water buffalo.”  Well, that might serve as a substitute (however poor) for livestock or even people, but it doesn’t do much for the aquatic life and wildlife that uses those springs.  Any other “business or activity” has to follow the Clean Streams Law and protect these resources when they do something on the land.  Up until now, coal companies haven’t had to follow the water laws. 

In the first encroachment permit issued thus far, the outline of the decision-making process doesn’t include springs.  Perennial streams, intermittent streams, wetlands and other bodies of water.  But no springs. 

If DEP is going to continue to consider “springs” as “groundwater” for the coal mining companies, they will still be granting them a dispensation that no one else gets.  And that is not justified by the mining law, because it defers to the Clean Streams Law.

Also, DEP’s statements to date imply that effects on water resources from underground coal mining are rare.  Well, you’d think they would look at their own Act 54 report (and the supplement), as it outlines a number of streams that have been affected.  DEP was directed by Act 54 to compile a report on the effect on water resources [link to Act 54?].  DEP contracted with a firm to do a study on longwall’s effects on streams.  Nothing has been released yet, but we’ve heard alternatively that 1) that the contractor hasn’t looked at all that many streams, or 2) looked at information compiled by others. 

Either approach (or another approach altogether) could be satisfactory; instead, what is important are the conclusions drawn from the results.  For example, one cannot look at one undermined stream, find no or few impacts, and conclude, “the effects on water resources from longwall are absent or rare.”  What that tells you is that effects on that one stream are absent or rare.  That’s it.  Similarly, if one uses data from other sources, one needs to solicit data from a number of sources.  You would want to get information from coal companies’ consultants, agencies with varying missions, like the Office of Surface Mining and the Pennsylvania Fish and Boat Commission, and citizen and watershed groups.  Regardless of source, the data need to be checked for quality control purposes.  When DEP’s own information says that a number of streams are affected (the Act 54 report lists 9 reported cases of subsidence and diminution, and the supplement to that report mentions others), they should probably start with their own information.  

Any report on longwall’s effects on surface water resources must include the impacts on springs.  If DEP is going to have one definition of “surface waters” for coal companies and another for the rest of us, one that doesn’t include “springs” and one that does, you can guess what the report is going to say:  “Underground Coal Mining and Water Resources:  No Problem.”  

DEP will soon be releasing “technical guidance” that will tell us how they plan on blending the mining permit reviews with the regulations protecting surface waters.  If DEP will “spring forward” and protect springs and other small, but important water resources from coal mining’s effects, they will be making the right choice.  Or they can “fall back” and rely on the mining regulations that consider springs to be “groundwater, contradicting (and in apparent violation of) the Clean Streams Law and the water quality standards.  Below is a letter we mailed to DEP this week, asking for application of the water laws to better protect springs from underground coal mining.  Watch for future PUs when the new “technical guidance” is released.  

brahoskysprings1.doc

brahoskysprings.pdf