EHB Ruling Helps Protect Private Property

We merited some slight attention in a recent edition of the newsletter of the Pennsylvania Landowners Association (PLA) (http://www.pa.landowners.org/pla-special.html). They mentioned us with some other groups and resource agencies as part of some "Eco-Alliance" which they defined as:

 "ECO-ALLIANCE: In Pennsylvania, a consortium of conservation and environmental advocacy groups and organizations including but not limited to, Citizens for Pennsylvania's Future, Trout Unlimited and the Federation of Sportsmen's Clubs and the Raymond Proffitt Foundation, and state and federal environmental and resource agencies which share a common philosophy and pursue an agenda hostile to private property."

"An agenda hostile to private property?"  Gee, we are flattered to be included as a member of such an elite group, but we don't think we have such an agenda, nor do any of the other mentioned groups as far as we know. During 2002,  we (along with some other groups, including Citizens for Pennsylvania's Future, another "Eco-Alliance" member) have been assisting landowners in Greene and Washington counties that are about to be undermined by longwall coal mining.

You can check out the PLA for yourself, but their home page says that the group " is committed to environmentally sound land use practices and conservation of our natural resources and believes that private stewardship of land promotes a healthy environment" and that they seek "to level the playing field for ordinary citizens and landowners against the bureaucracy...."  In Greene and Washington counties, ordinary citizens and landowners are up against double bureaucracy because they have to deal with DEP and the coal companies.  We've attended meetings with the coal company, DEP and landowners who have lost their springs and ponds, and have heard many stories from folks that have had trouble dealing with DEP and the coal companies.   Haven't seen hide nor hair of the PLA in any of this work.

One project that we think is especially worthwhile is helping landowners document the surface waters (streams, springs, ponds and wetlands) that are on their property.  This is important because DEP has, after much pressure, finally decided to apply the water quality laws to underground coal mining. It took a while, even though Act 54 (the 1994 revisions to the mining law) said that the Clean Streams Law and its implementing regulations applied to

underground coal mining (http://www.rayproffitt.org/pu2000/12202000.htm).Therefore, application of the water laws shouldn't have been much of a revelation to anyone at DEP.

If you have a home out in the country or a farm, water is a necessity. While the mining law says that any water supply such as a well, has to be replaced if it is damaged by mining, having springs or maybe even a stream or two is a real bonus.  Almost every time, having surface waters like springs and streams adds substantial monetary value to private property. The article in the PLA newsletter that mentioned us is about the "riparian rights" of a landowner in central Pennsylvania.  Apparently folks are fishing and floating down the river and there is an issue whether he owns it or the Commonwealth owns it.  The PLA believes it is his and his rights are being trampled upon.  This guy is lucky there is no coal underneath the river-then the bottom or the flow could be changed, if past practice in the coal fields is any indicator.

And  riparian landowners are one group of folks we are trying to help!  If a coal company dries up a stream or spring that is supposed to be protected by the Clean Streams Law, aren't their riparian rights being taken away illegally?

You can also go to the Raymond Proffitt Foundation website (www.rayproffitt.org) and read our mission.  Save yourself the trouble-- we are interested in the enforcement of environmental laws.  Private property? We don't mention it because it doesn't really factor in.  Public or private, the law must be obeyed.  Wouldn't enforcement of the environmental laws,ensuring that the coal companies don't affect springs or streams any more than anyone else would be permitted to do, help protect private property? We think so.

And on top of losing surface waters, most times these folks suffer severe damage to their homes.  Isn't the American family home one of the most sacred pieces of "private property" we have?   So contrary to the PLA's assertion that we pursue an agenda "hostile to private property rights," we are supportive of the private property rights of surface landowners.

Maybe we have come to the attention of the PLA because they (or some of their "partners") are directly aware of our work in Greene and Washington counties.  How would they know?  If you check out the link on the PLA web site for their "business partners" (http://pa.landowners.org/spage.html)  you will see the PA Coal Association listed among other "partners."   You'll have to ask the PLA how they square having the PA Coal Association as a partner when the PLA " is committed to environmentally sound land use practices and conservation of our natural resources."

Back in longwall coal country, one coal company isn't happy.  They have appealed a permit condition that says they have to follow the water laws in the same manner as do other Pennsylvanians (http://www.ehb.verilaw.com/document_shower_pub.icl?docket_no=2002112).

They want to only follow a certain "subchapter" of one of the mining regulations that only requires them to protect "perennial" streams.  They said that the Clean Streams Law does not apply.   Do you call that "environmentally sound land use practices?"  We don't.

On December 31, 2002, the Environmental Hearing Board ruled that the Clean Streams Law applies to the subsidence effects of coal mining and said that other mining regulations do apply, and that those regulations "apply to all waters of the Commonwealth" (original emphasis).   Read DEP's take on it (http://www.dep.state.pa.us/update/default.asp?ID=11876) The decision doesn't say they can't mine, it just says that the Clean Streams Law applies to mining and subsidence just as the Clean Streams Law prevents other activities from polluting "waters of the Commonwealth.

To the private property owners with springs and streams on their property, this is good news.  Maybe the PLA will do a "special edition" about some of the riparian rights being trampled upon in Greene and Washington counties when springs and streams dry up, and how that should now change.