E.P.A. Official Seeks to Block West Virginia Mine

By JOHN M. BRODER
Published: October 15, 2010

WASHINGTON — A top federal regulator has recommended revoking the permit for one of the nation’s largest planned mountaintop removal mining projects, saying it would be devastating to miles of West Virginia streams and the plant and animal life they support.

In a report submitted last month and made public on Friday, Shawn M. Garvin, the Environmental Protection Agency’s regional administrator for the Mid-Atlantic, said that Arch Coal’s proposed Spruce No. 1 Mine in Logan County should be stopped because it “would likely have unacceptable adverse effects on wildlife.”

In 2007, the Bush administration approved the project, which would involve dynamiting the tops off mountains over 2,278 acres to get at the coal beneath while dumping the resulting rubble, known as spoil, into nearby valleys and streams. The Obama administration announced last year that it would review the decision, prompting the mine owner, Arch Coal, based in St. Louis, to sue.

In its review, the E.P.A. found that the project would bury more than seven miles of the Pigeonroost Branch and Oldhouse Branch streams under 110 million cubic yards of spoil, killing everything in them and sending downstream a flood of contaminants, toxic substances and life-choking algae.

Kim Link, a spokeswoman for Arch Coal, said in a statement that the company intended to “vigorously” challenge the recommendation.

“If the E.P.A. proceeds with its unlawful veto of the Spruce permit — as it appears determined to do — West Virginia’s economy and future tax base will suffer a serious blow,” Ms. Link said. She said the company planned to spend $250 million on the project, creating 250 jobs and tens of millions of dollars in tax revenues in a struggling region

“Beyond that, every business in the nation would be put on notice that any lawfully issued permit — Clean Water Act 404 or otherwise — can be revoked at any time according to the whims of the federal government,” she said, referring to the federal law under which the original permit was granted. “Clearly, such a development would have a chilling impact on future investment and job creation.”

The E.P.A. said the construction of waste ponds as well as other discharges from the Spruce No. 1 mining operation would spread pollutants beyond the boundaries of the mine itself, causing further damage to wildlife and the environment.

Arch Coal had proposed to construct new streams to replace the buried rivers, but the E.P.A. said they could not reproduce the numbers and variety of fish and plant life supported by the indigenous streams.

An E.P.A. spokesman said that Mr. Garvin’s recommendation was a step in a long process and that the agency’s Office of Water and the E.P.A. administrator, Lisa P. Jackson, would review his report and thousands of public comments before making the final decision, likely before the end of the year.

The Sierra Club applauded the E.P.A. for “staring down Big Coal and industry lobbyists.”

“This mother of all mountaintop removal coal mines would destroy thousands of acres of land, bury seven miles of streams and end a way of life for too many Appalachian families,” the Sierra Club’s executive director, Michael Brune, said in a statement.

Posted: October 4
Updated: Today at 12:20 AM

Polling for gas drilling not popular, especially before election
Proposal would allow holdout landowners to be forced to lease below-ground gas rights.

MARC LEVY Associated Press Writer

HARRISBURG — Pooling isn’t popular.

If you haven’t heard of it, it’s an obscure provision that was at the top of the list of changes to Pennsylvania law being sought this year by companies unearthing natural gas from the rich Marcellus Shale formation that sits below much of the state.

But senator after senator in Harrisburg has voiced opposition to the concept, which, simply put, could be used to force holdout landowners to lease their below-ground gas rights under certain conditions.

Landowners would be paid for the methane sucked from beneath their turf, and no well would be drilled on their land — but they’d be unable to say “No” to a drilling company.

Opponents call it tantamount to government taking property rights to benefit private companies, and say industry representatives could wield it as a weapon to limit a landowner’s ability to negotiate a better lease.

Senate President Joe Scarnati, a key industry ally, said he’ll continue to try to develop a provision that satisfies the concerns of his fellow senators. But he acknowledged that concern regarding taking property rights is a major hurdle.

Citizens “take it seriously and I think that it’s maybe a toss-up — take their property or take their guns,” Scarnati, R-Jefferson, said. “But I’ve got to tell you, you’re treading on some thin ice when you try to take either. So we’re very sensitive to that and we’re going to certainly do the commonwealth right in whatever the final product is.”

Scarnati had hoped to put a pooling provision into a wider bill addressing Marcellus Shale issues, including an extraction tax sought by House Democrats since shortly after the drilling boom began two years ago. However, pooling is likely to be punted into next year.

The Senate’s last scheduled voting day this year is Oct. 14 and no pooling proposal has received a public hearing or even a lengthy floor debate.

The issue is thorny enough, even if legislators were not facing an election in four weeks.

An industry spokesman said Friday that he hadn’t given up on the provision.

“The ongoing negotiations on taxation and modernizations to the statutory framework for our industry will likely ebb and flow over the next two weeks,” said David Spigelmyer, vice chairman of the industry group, Marcellus Shale, and the director of governmental relations for Oklahoma City-based Chesapeake Energy Corp.

Meters required for all wells in Nesquehoning, PA

Reported on Thursday, August 26, 2010
By CAROL ZICKLER TN Correspondent tneditor@tnonline.com

“Tom Merman asked David Hawk, who serves as the borough’s Water Authority chairman, about putting meters on all of the wells in town that don’t have meters on them. Hawk answered that it is up to council as to whether they want to enforce the ordinance. There is an ordinance that all wells have meters attached. Later in the meeting it was discussed that each homeowner who does not have a meter must get one and have it installed. They will have 30 days from time of accepting the meter to have it installed.”

Web Posted: 02/18/2010 12:00 CST

Who owns groundwater in the aquifer?

By Colin McDonald – Express-News

AUSTIN — The ownership and control of groundwater pumping rights in Texas is now in the hands of the state Supreme Court.

On Wednesday, the nine justices heard arguments in a case that pits the right of a landowner near Von Ormy to pump from the Edwards Aquifer against the government’s authority to regulate the use of ground and surface water.

For more than a decade, the Edwards Aquifer Authority has argued that in order for it to regulate pumping, landowners cannot own the water in the Edwards Aquifer.

It was first time the state’s highest court considered that argument.

Scores of landowners, private organizations, cities and state agencies that disagree with the EAA packed the courtroom and formed a line outside.

“Any ruling by the Court that in any manner destabilizes groundwater ownership rights could have dire consequences for Texans and the Texas economy,” wrote Texas Comptroller Susan Combs.

The EAA was created by state law in 1993 to ensure a future water supply for the region and protect endangered species by limiting pumping from the aquifer.

Instead of allowing landowners to continue to pump as much water as they wanted as long as they put it to some beneficial use, the authority issued pumping permits and put a cap on the total amount that could be pumped.

In 1996, Burrell Day and Joel McDaniel requested a permit to pump 700 acre-feet from the ground. The two wanted to start a peanut and oat farm on the 350-acre ranch they had recently purchased. Their plan was to use the free-flowing water from a well drilled by the previous owner that was filling a 50-acre man-made lake on the property. The EAA denied their application for groundwater. It told the landowners that if they wanted to use the water in the lake, which is considered surface water and therefore controlled by the state, then they would need a permit from the Texas Commission of Environmental Quality, not the EAA.

The EAA issued a permit for Day and McDaniel to pump 14 acre-feet a year.

The two sued in district court, arguing the EAA had “taken” their property by denying them the right to pump. Day died last year.

“They have regulated us out of our ownership of the groundwater by regulating it to the point of it being useless,” said Day’s and McDaniel’s lawyer Tom Joseph.

Because the well water mostly evaporated out of the shallow lake and never flowed off the property, Joseph argued it never became state water. Instead, it should be considered groundwater because it came from the well. As groundwater, it belongs to the landowners because they own the well.

The EAA countered the landowners did not have a constitutionally protected right to the water beneath their land and therefore could not sue.

The lines were drawn, and some 14 years and multiple appeals in federal and state courts later, the Texas Supreme Court agreed to hear the case.

In general, the other courts agreed with the EAA and the outcome of the permit process. But the state Court of Appeals ruled landowners do have “some ownership rights in the groundwater.”

On Wednesday, the EAA argued that if the groundwater is owned by the landowners, then it and the roughly 95 groundwater conservation districts in the state would be open to a lawsuit every time they tried to limit pumping or be forced to compensate landowners.

“This is no small question for the authority,” the EAA lawyers wrote in their brief to the court.

The EAA would have its “legs pulled out from underneath it” if the court ruled against it, EAA lawyer Pamela Baron told the justices.

Justice Harriet O’Neill questioned that logic, pointing out a “takings” claim is difficult to prove, and water ownership would not necessarily limit the power of the EAA.

Justice Nathan Hecht also challenged the EAA’s stance and asked Baron if the landowners don’t own the water beneath their land, then who does?

Baron replied that no one had to own groundwater.

But if the landowner does not own the water, Hecht continued, then what protection is there from the state coming in and taking all of the water for another use?

Baron said the landowners and the water would be protected from such a radical change by locally elected board members of the EAA and the conservation districts. If the board members did something the landowners did not like, they would be voted out.

To Joseph, Hecht questioned why the EAA’s limit on pumping was any different than a zoning restriction. Both limit the value and use of a property, but the zoning is not considered a “taking.”

Joseph argued that the rule of capture, which has historically allowed landowners to use all the water they can, should still apply.

But it was specifically that approach to water use the EAA was formed to curtail.

Find this article at:

http://www.mysanantonio.com/livinggreensa/84668452.html