New Bush Rule Promotes Killing Streams & Lakes

(The fewer sources of clean water there are, the more valuable the Bush family’s private water resources become. – promoted by Magnifico)

Last week, new Bushie rules were approved to authorize using streams, wetlands and waterways as waste dump sites as long as man-made streams are “created” to replace the streams killed by the waste.  This is a faith-based rule:  Even the government admits there is no evidence that people have the godly powers to create functional ecological stream systems.  That faith is based on the greed of appeasing special corporate interests that don’t want to spend money on responsible waste disposal methods.  

This rule is not limited to mining waste, but the destruction of streams and watersheds is prevalent in Appalachia.  MTR mining has already destroyed 1,208 miles of streams in just 10 years, but greedy profiteers have since added another 535 miles.  

In mountaintop removal mining (MTR), the mining industry uses bombs to blast off the top 500-1,000 feet of ancient mountain ranges that have lived for millions of years after clear-cutting forests that are part of one of our nation’s richest biodiversity hotspots.  Depending on the size of the decapitation, millions of tons of rock, soil and mining debris which may be hundreds of feet deep are then dumped into contiguous valleys, which then kill the streams, aquatic life and habitat by suffocation. A single valley fill may be over 1,000 feet wide and more than a mile long.

Bit by bit, Bush is changing the laws that protect our environment in order to legalize the illegal practices that federal agencies have “authorized” for years. Bush’s goal is to legalize MTR, and he is succeeding because the public has ignored the destruction in Appalachia for so many years.  However, Bush’s new rules are not limited to MTR:  These rules apply nationwide to all projects that dump various types of waste into our lakes and streams. Bush has been changing various laws and administrative regulations which provided independent grounds to stop MTR.  For example, Bush changed the rules which determine whether the mining industry could obtain any permit for MTR under the Clean Water Act (CWA).   MTR did not legally qualify for the easy Section 404 permit, so Bush promulgated a new tautological rule that says if mining waste dumped into a lake or stream has the effect of filling the lake or stream, then it is ok. That rule jumped mining companies over the big hurdle of avoiding the need to obtain the appropriate Section 402 permit, which mandates stringent technology-based limitations that could not be satisfied by MTR.  In other words, if Bush had not changed the structure of the CWA permitting regime, then the mining industry would be in quite a pickle trying to qualify for the appropriate permit.  

However, while Bush has opened 404 to mining waste, there is another requirement that the mining industry must satisfy before it is legally entitled to a 404 permit for valley fills.  The Section 404 permit program provides that permits must be issued in compliance with 404 Guidelines which mandate that fill material (i.e., the now legal mining waste) can not be discharged into waters if it will result in an unacceptable adverse impact on the aquatic ecosystem.  The Corps has acknowledged in Ohio Valley Environmental Coalition v. Army Corps of Engineers (pdf file)  (March 23, 2007)  that the environmental impacts of killing a stream, riparian habitat, wildlife, aquatic life and the ecosystem “would require a finding that the proposed discharges violate the CWA and mandate a full EIS under NEPA.” In other words, the massive environmental destruction caused by valley fills would generally prohibit issuing permits to mining companies or at least require an environmental analysis that valley fills simply could not pass.  

However, the Corps maintains that permits for valley fills are valid only because mitigation measures will offset these environmental impacts so that the valley fills qualify for a permit.  What is this miracle mitigation measure that justifies killing stream ecosystems? Mining companies can simply create streams to replace the streams killed by valley fills.   Not surprisingly, the Bushies faced another challenge by those pesky environmental lawsuits. In Ohio Valley Environmental Coalition v. Army Corps of Engineers, a federal judge rescinded permits for MTR valley fills, concluding that the “alarming cumulative stream loss” to valley fills is not mitigated by the creation of man-made “streams.” Even the Corps admitted that the “valley fills will permanently bury the streams along with their riparian areas, permanently alter the normal water flow within the area under the fill, and destroy or disrupt the living organisms and their habitats within the valley.” Yet, permits were issued based upon the mitigation which included man-made streams as a replacement.

One problem is that the 404 Guidelines require the Corps to consider the “structure and function of the aquatic ecosystem” in order to determine if the man-made stream would be a viable measure to mitigate the loss of the natural streams.  If the man-made streams do not meet this “structure and function” test, then the man-made stream is not lawful mitigation for killing the natural streams, and then the mining industry is not entitled to a 404 permit even though Bush changed the structure of the CWA permitting regime to open the 404 door to valley fills.

The Guidelines mandate that the Corps must make specific factual determinations before issuing a permit. The Corps must evaluate the proposed discharge of dredged or fill material by assessing the short-term and long-term effects of the discharge on the following:

(1) physical substrate; (2) water circulation, fluctuation, and salinity; (3) changes in the kinds and concentrations of suspended particulate/turbidity in the vicinity of the disposal site; (4) introduction, relocation, or increase in contaminants; and (5) structure and function of the aquatic ecosystem. 40 C.F.R. § 230.11. The Corps, in analyzing effects on the aquatic ecosystems and organisms, must consider potential changes in “substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities [and] [p]ossible loss of environmental values.”

The Guidelines require the Corps to consider the effects of the discharge of mining waste on the “structure and function of the aquatic ecosystem,” but the regulations did not define structure and function.  Thus, until now, the Corps relied upon its own judgment, as stated in a 1990 Memorandum of Agreement with the EPA.

The court concluded that the Corps failed to comply with the 404 Guidelines, which require the Corps to assess the effects or impacts of the discharge on the “structure and function” of the aquatic ecosystem in order to determine whether the mitigation plans would offset the impacts sufficient to authorize a 404 permit.  The court noted that this structure and function analysis requires the Corps to at a minimum consider the “potential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities,” as well as “possible loss of environmental values.”

The Corps maintained that it did not have to assess the functions of the streams and ecosystems destroyed, but rather focused on the structure of streams in a mathematical, generic sense devoid of the roles played by streams.  The importance of considering both structure and function is highlighted by expert testimony provided to the court:  A good analogy which illustrates the distinction is that “structures are similar to the physical attributes of a person, such as height and weight, whereas functions are akin to blood pressure and heart rate. Although both are important, functions better reflect the overall health and role of the stream as an aquatic resource.”

Scientists agree that there are many functions provided by a stream, including:  “(1) treatment of pollutants; (2) nutrient cycling; (3) temperature control; (4) maintenance of genetic diversity; (5) dynamic stability; (6) movement of water and sediment; and (7) water and organic matter retention.”

For example, one such function is nutrient processing, in which streams process nutrients (such as nitrogen and phosphorus) and remove contaminants (such as toxic metals or sediment) that otherwise would accumulate and make streams unsuitable for drinking and for sustaining aquatic life. Another such function involves the decomposition of organic matter, which prevents the buildup of organic waste that affects oxygen levels and energy sources downstream.

Rather than consider the functions streams perform in our ecosystem, the Corps focused on structure so that the replacement of a natural stream ecosystem with a man-made stream on a 1:1 ratio constituted sufficient mitigation to compensate for killing our streams.

That is, in the Corps’ view, so long as at least an equal length of stream mitigation occurs for the length of streams destroyed, the 1:1 ratio is met and the impact is no longer considered significant or adverse.

Thus, the Corps argued that the MTR valley fills can be authorized if the mining company provides one foot of stream mitigation — whether by restoration, creation or enhancement — to replace the adverse impacts of each foot lost by dumping waste into the stream.

The court disagreed, finding that the Corps only evaluated the physical structure of the streams with lip service to a few thoughts on habitat while not assessing the full impacts of destroying headwater streams (where streams and rivers originate) within a watershed.  The court described some of the ecological benefits of headwater streams that would be difficult to replicate in a man-made stream: (It’s a long quote with some scientific jargon, but I think it provides a good example of how every little aspect of our stream systems provide a crucial role.)

All streams contribute similar ecological benefits, no matter what their size. Streams transport sediment and organic material downstream and serve as habitat for aquatic and other life. Yet, headwater streams differ from perennial streams in critical ways. Headwater streams, such as those at issue here, are typically found in forested hollows. The forests supply organic material critical to the stream and life within it. Trees often produce a canopy covering portions of the stream, shading the water in the summer and providing organic matter. This organic material is collected within the headwater streams, broken down and transported downstream where it supplies much of the energy and material which support life and other ecological functions. In addition, the process of “nutrient uptake” is greater in headwater streams.  Headwater streams are shallow and flow slowly despite their location in steeper terrains, and also are obstructed easily by rocks or organic materials, such as leaves or branches.  As a result of this increased interaction with the stream bed, or substrate, and the presence of fungi and microbes on the organic material, headwaters allow for nutrients to be broken down and used by organisms downstream.  

Moreover, headwaters serve as the habitat for unique fauna and possess greater biodiversity, with 90% of the biodiversity of a watershed found in headwaters.  The types of benthic organisms found in headwater differ as well. Benthic organisms, classified as “scrapers,” “shredders,” and “collectors,” predominate within headwater streams, feeding on the microbes and fungi found on the leaves in the stream. Aquatic organisms in headwaters break down organic material through decomposition into smaller particles so it may be transported downstream to serve as food for other organisms. The rate of growth of these organisms is called productivity, a critical “function” of a stream resource.

Many species found in headwaters are sensitive to pollutants or other changes such as altered water temperature or flow levels. A greater portion of their flow comes from groundwater, which tends to be cooler than surface water in the summer and warmer in the winter, thereby regulating the temperature of downstream waters.

This groundwater exchange also contributes to a water purification function. Groundwater exchange is a complex interaction of water, nutrients, organic material and chemicals, occurring through contact with the stream bed and banks, where water and dissolved material move to and from the stream.  These characteristics make headwater streams disproportionately important in functions related to biodiversity, water quality, and nutrient processing.

The destruction of headwater streams and the trees and plants around them eliminates a large amount of organic material from the stream network and deprives downstream resources of the other functions typically served by headwater streams. (Citations to transcript pages omitted)

The court noted some of the impacts of valley fills:

The groundwater exchange naturally occurring in intermittent streams is lost, which may decrease the water purification process. As a result of valley fills, the water chemistry changes, which affects the range of aquatic life. Valley fills increase the discharge of chemicals which are then carried downstream.   While many discharges are regulated by water quality standards, some chemical changes associated with poorer water quality, such as conductivity, are not.   The increased chemical mix produced by valley fills reduces biodiversity, causing a shift toward pollution tolerant organisms.  An EPA-directed aquatic impacts assessment concluded that sites with valley fills had “lower biotic integrity”and “reduced taxa richness” with “fewer pollution-sensitive EPT taxa.” Drs. Wallace and Palmer opined, with persuasive reasoning, that burying substantial lengths of headwaters constituted a serious danger to the aquatic ecology in several ways, clearly a set of adverse impacts under the CWA and NEPA.  Even Intervenors’ experts, Dr. Donald Cherry and Dr. Mindy Armsted,42 acknowledged that natural headwater streams perform functions in ways and at rates different from perennial streams and that streams below valley fills have lower biodiversity, reflecting a shift toward pollution-tolerant organisms.  (Citations to transcript pages omitted)

One mitigation method approved by the Corps was stream creation:  The natural streams killed by valley fills could be replaced by the mining company creating streams, such as “converting sediment ditches in the mining area into intermittent streams.”  These sediment ditches were constructed at different locations on the mining site to capture and hold surface runoff produced by MTR mining as well as to control drainage and collect sediment.  It is important to note that these man-made streams would be located on the now barren mining site, not in the forest, which plays a key role in the aquatic ecosystem.  The Corps focused on structure because it could advocate that “structure” means a sanitized shell of a stream, rather than a fully functional stream system in an interconnected watershed. The plan to transform these ditches into streams required removing grout from the bottom of the ditches as well as sediment, “digging a new channel within each ditch, and connecting the ditches.” It also required trying to give the ditch the physical appearance of a stream.  Sticking to its structure over function approach, the plan contained “detailed descriptions of the size and locations of the different channels,” but provided “no explanation for how converted ditches will replicate the functions associated with intermittent streams.”  

Apart from designing the physical appearance of the sediment ditches to mimic a stream channel, there is no design criteria in the record discussing ground water exchange, organic matter retention or other non-habitat characteristics. The design discussions in the CDDs and CMPs also do not explain how the creation of habitat will result in the functions expected of a natural intermittent stream. The Corps asserts that the new stream will eventually provide the same structure and functions as a real stream, but the record contains no scientific basis for this assumption.

The court held that stream creation is not a “suitable compensatory mitigation method.” While the Corps believes that somehow the mining ditches will “transform into streams and supply the same structure and functions as the destroyed streams,” the Corps did not have any scientific support for this belief. In fact, two of the Corps’ own witnesses “conceded that the Corps does not know of any successful stream creation projects in the Appalachian region.” Even the USFWS, “a sister federal agency with expertise in aquatic ecosystems, advised the Corps that there was no scientific support for the concept that these ditches could be considered ‘even rough approximations’ biologically of a stream.”  The USFWS concluded that “drainage and sediment ditches are ‘inadequate and unacceptable compensatory mitigation.'”

The court stated it nicely:

The court finds that the Corps has too little experience to support its faith in stream creation as an acceptable means of compensatory mitigation.

The Bushies have faith that man-made streams can replace a natural stream system of an interconnected water system — both groundwater and surface water  — in a watershed that is similarly interconnected with all the roots of plants and trees, biological diversity, aquatic, ecological and wildlife that each play a role in the stream system.  Faith that trumps the laws of nature, the CWA and even the government’s own scientific experts.  

Rejected by the court, the Bushies finalized a new compensatory mitigation rule to codify the structure approach advocated by the Corps. The final mitigation rule (pdf file)  (online version of rule to be published in Federal Register on 4/10/08) authorizes compensatory mitigation actions to “offset unavoidable adverse impacts to wetlands, streams and other aquatic resources authorized by Clean Water Act section 404 permits and other Department of the Army (DA) permits.” The agencies believe the compensatory mitigation rules should be applied to “all types of aquatic resources that can be impacted by activities authorized by DA permits, including streams and other open waters.”  This last sentence is not just a harbinger of what waterways may be transformed into waste sites in the future. In Appalachia, the mining industry actually exhausted one category of streams by its valley fills and now is expanding valley fills into larger stream systems. In the West, gold mining companies are transforming lakes into waste sites with their tailings discharge.

Compensatory mitigation is defined to include the creation of aquatic resources or streams for the purpose of “offsetting unavoidable adverse impacts” caused by discharging waste into waters or wetlands. The creation of these new streams is deemed a “gain” in aquatic resources:

Establishment (creation) means the manipulation of the physical, chemical, or biological characteristics present to develop an aquatic resource that did not previously exist at an upland site. Establishment results in a gain in aquatic resource area and functions.

Many commenters on this new rule stated the obvious:  There is no scientific evidence that people  can create streams to replace those that mining killed.  In fact, scientists, ecologists, biologists and other stream experts raised concerns about the impossibility of re-creating the ecological functions of streams killed by MTR:

One letter to the corps, signed by more than 125 scientists, cited a study that found “no evidence for successful creation of a stream channel” in more than 37,000 stream restoration project records.

The agencies agreed (pdf file):

We recognize that the scientific literature regarding the issue of stream establishment and re-establishment, is limited and that some past projects have had limited success. …

We recognize that the science of stream restoration is still evolving and that more research is needed; however, the lack of a fully-developed set of tested hypotheses and techniques does not mean that stream mitigation (particularly via restoration, enhancement and preservation) cannot be successfully performed or that it should not be required where avoidance of impacts is not practicable.

In fact, another federal agency, the Office of Surface Mining (OSM) concluded that there has been no success with creating smaller headwater streams:

“While proven methods exist for larger stream channel restoration and creation, the state of the art in creating smaller headwater streams onsite has not reached the level of reproducible success,” the OSM wrote. “Attempts to reestablish the functions of headwater streams…have achieved little success to date.”

Our government knows that there is no scientific basis to believe that stream creation is viable.  Yet, we now have a rule authorizing environmental destruction that can only pass muster even under Bushie’s new fill material rules if mitigation in the form of stream creation is provided. My guess is that the next step to finalize the killing of streams for corporate gain will be for our government to codify an exemption that basically says sorry, it is not possible to re-create streams. We have seen this before.  MTR mining was subjected to the federal law mandating lands restored to approximate original contours.  Later, the government admitted that no one could grab the rocks and soil blasted from the mountain and simply glue back the decapitated mountain as if nothing had happened.  This realization led to a blanket exemption to mining companies.  Whether it is restoration of mountains or streams, the strategy has been to authorize the destruction on the rationale that promises of restoration will quell public criticisms, and then years later, admit restoration is not possible.  The practice of destruction is not stopped, but simply officially excused.

The absurdity of this rule is beyond belief. We have a limited number of natural lakes and streams. People love to just sit and admire the beauty and tranquility of our waterways nestled so peacefully in our forests. People love to fish, swim, and canoe in our waterways. We face potable water shortages.  If we do not raise our voices to change this rule, we face losing one of Mother Nature’s greatest gifts to us.