Watershed cleanup advocates fear new infrastructure law restricts acid mine

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Stewards of watersheds throughout Appalachia have a lot of cleaning up to do.

First, though, they have a lot of clearing up to do — with potentially billions of dollars on the line.

President Joe Biden signed into law a bipartisan infrastructure bill earlier this month that provides $11.29 billion for abandoned mine land and water cleanup projects.

One of the feds’ goals for the investment in cleanup funding over 15 years in West Virginia and 24 other states is addressing acid mine drainage.

“These funds support vitally needed jobs for coal communities by funding projects that close dangerous mine shafts, reclaim unstable slopes, improve water quality by treating acid mine drainage, and restore water supplies damaged by mining,” the U.S. Department of the Interior said in a news release on Nov. 9, four days after Congress passed the bill.

But perceived limits in the legislation on states’ ability to restore streams toxified by acid mine drainage have worried abandoned mine cleanup advocates who see the new law as a missed opportunity to address devastating sources of environmental destruction.

Friends of the Cheat, a Kingwood-based nonprofit working to restore the Cheat River watershed, criticized the legislation in a September email to the group’s followers.

“[N]ew regulations concerning the distribution of funding leaves many streams and rivers, including the Cheat, in the lurch,” the group warned.

In addition to decrying the legislation’s 20% reduction of fees levied on coal companies that fund the reclamation program for abandoned mine lands, the group lamented that the legislation wouldn’t allow spending on some of the watershed’s most problematic acid mine drainage sites.

The group interpreted the bill as prohibiting funding to be spent on a key category of acid mine drainage sites and not allowing states to put funds in set-aside accounts that cover acid mine drainage treatment costs.

So did Paul Johansen, chief of the West Virginia Division of Natural Resources’ Wildlife Resources Division, and state fish and wildlife agency heads in Kentucky, Ohio, Pennsylvania, Tennessee and Alabama, who urged chairmen of the U.S. House of Representatives Budget and Natural Resources committees to lift the apparent restrictions in an Aug. 26 letter.

The bill had already passed the Senate earlier that month.

The state fish and wildlife agency heads urged House leadership to give states greater flexibility to “treat polluted water according to the highest needs of our people, fish, and wildlife.”

States and tribes rank abandoned mine land problems on a priority scale of 1 to 3 as defined by federal law. Mine pollution problems ranked 1 and 2 are addressed first.

Many mine cleanup advocates have concluded the infrastructure law would not allow funding to be used for addressing acid mine drainage in problem areas not adjacent to Priority 1 and 2 sites, pointing to language in the Surface Mining Control and Reclamation Act of 1977 cited in the new law’s text.

“The current limitations requiring funds be used only for treatment facilities adjacent to priority 1 and priority 2 abandoned mine land do not account for treating [abandoned mine drainage] where resource managers determine pollution is having the greatest negative consequences or where the AMD causes severe impacts to economically and environmentally disadvantaged communities,” the state fish and wildlife agency heads wrote to House committee chairmen in their August letter.

Acid mine drainage forms when pyrite is exposed and reacts with water and air to form sulfuric acid and dissolved iron, which can form the orange and red sediments in the bottom of streams.

The Lick Run Portal abandoned mine site has been the lower Cheat watershed’s largest source of acidity for many years.

But it’s only a Priority 3 site, Friends of the Cheat lamented.

“[T]his AMD source, and so many others like it, will be left without a clear path forward for remediation,” the group warned in its September email.

Unfunded reclamation costs for just Priority 3 sites in the Cheat River watershed total $54.1 million, according to the Abandoned Mine Land Inventory System maintained by the federal Office of Surface Mining Reclamation and Enforcement.

Reclamation costs still unfunded for Priority 3 sites in West Virginia total $572.8 million — more than eight times as much as the same costs for Priority 1 sites statewide.

Nationwide, unfunded costs of reclamation for Priority 3 sites amount to $2.87 billion.

Tom Clarke, executive director of the Interstate Mining Compact Commission, a Herndon, Virginia-based state membership organization that represents states’ interests on mining issues, has interpreted the law as less restrictive. He wants the feds to do the same.

“I believe Congress intended to allow new funds it provided in the infrastructure bill to be used for Priorities 1, 2 and 3, water supply replacement and [abandoned mine land] emergencies,” Clarke said in an email. “To give full effect to the intent to authorize Priority 3 work, I am hopeful the law will be interpreted to allow a portion of these funds to be dedicated to the costs of long term operation and maintenance of AMD treatment systems.”

But Joe Pizarchik, who served as director of the federal Office of Surface Mining Reclamation and Enforcement from 2009 to 2017, doesn’t think the text of the law supports Clarke’s argument.

“I agree the interpretation Executive Director Clarke offers … would be better for the states and would produce a better result for the environment and the community,” Pizarchik said in an email. “I do not agree that Mr. Clarke’s interpretation is likely to prevail.”

Office of Surface Mining Reclamation and Enforcement spokesman Francis Piccoli said Tuesday that the agency’s solicitors are “engaged in a thorough legal review of the law” and declined further comment until the legal review is complete.

What’s at stake, watershed protectors say, isn’t just the environmental health of rivers and streams but hundreds of millions of dollars in potential revenue from fishing, boating, kayaking and other recreational activities lost due to a lack of clean water driven by funding restrictions — even after a $11.29 billion investment from the feds.

“Flexibility for states to use funds based on necessity of the water source, downstream effects on the environment and disadvantaged communities, or feasibility of the project,“ Johansen and other fish and wildlife agency heads wrote in their August letter to House committee chairmen, “ … would greatly increase the return on investment.”

Priorities not straight

The other subsection outlines priorities 1, 2 and 3 and specifies that areas adjacent to sites that have been or will be remediated under the former two priority levels outrank Priority 3 in importance.

Clarke contends that Priority 3 acid mine drainage work is authorized by that subsection’s definition of Priority 3: “restoration of land and water resources and the environment previously degraded by adverse effects of coal mining practices including measures for the conservation and development of soil, water, woodland, fish and wildlife, recreation resources, and agricultural productivity.”

“The most basic objective of Priority 3 cannot be achieved,” Clarke said, if there is no authority to spend Abandoned Mine Land program dollars on operation and maintenance of acid mine drainage treatment facilities.

“Because [operation and maintenance] costs are a fundamental part of achieving the purpose of Priority 3 AML work, we believe they are necessarily authorized by the infrastructure bill as part of the authority it confers to do Priority 3 work,” Clarke added.

But Pizarchik maintains that a Priority 1 or 2 project adjacency requirement for acid mine…

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