Wise praises appeals court ruling

Gov. Bob Wise on Wednesday offered a vigorous defense of mountaintop removal coal mining and praised the rejection of federal court-ordered limits on valley fill size.Wise said that he welcomed an appeals court's decision to overturn the valley fill limits ordered 18 months ago by Chief U.S. District Judge Charles H. Haden II.The governor said that he recently visited a mountaintop removal site and stood at the toe of a large valley fill."The water coming out at the end into a small pond was the same quality or better quality than it was before," Wise said. "And, there was flat land that was available for housing or for development or for other activities."On Tuesday, the 4th U.S. Circuit Court of Appeals overturned Haden's October 1999 mountaintop removal ruling.Haden had concluded that a federal stream buffer zone rule prohibits mine operators from dumping rock and dirt into perennial and intermittent streams. Valley fills are allowed only in ephemeral streams, smaller waterways that flow only when it rains or snow melts.The federal case did not focus on the quality of water that flows through valley fills and is discharged at the bottom of those fills.Instead, the lawsuit sought to protect parts of streams that were actually being buried by valley fills. In its decision, the 4th Circuit did not address whether Haden was right or wrong about the buffer zone limiting valley fill size.Instead, a three-judge panel said that Haden should never have considered the issue.Writing for the panel, Judge Paul V. Niemeyer said that the buffer zone was a state rule - not a federal law - and that disputes over it should be settled in state court.Lawyers for the West Virginia Highlands Conservancy and other groups that brought the suit have said that they will appeal to the U.S. Supreme Court.
When he was in Congress, Wise joined with other members of the West Virginia delegation in an effort to write legislation to overturn Haden's ruling.At one point in 1998, Wise called for a moratorium on new mountaintop removal permits. At the time, he said the state's permit reviews were so lax that no new mines should be authorized until reforms were made.
But since then, Wise has become a strong supporter of what the governor calls "responsible mountaintop mining."On Tuesday, DEP Director Michael Callaghan praised the 4th Circuit's decision. Callaghan, a former federal prosecutor, said that he was glad that the appeals court decided to put cases about strip mine regulation into state court instead of in front of federal judges.In an appearance on the MetroNews "Talkline" statewide radio show, Wise agreed that state officials should control the policing of strip mines within their borders."We believe that we can run the program," Wise said. "We'll run it in an environmentally appropriate way."We may not be able to keep every stream in its original, pristine condition," the governor said. "[But] we'll mine coal, and we'll do it in an environmentally friendly way."Wise also said that his administration plans to give coal companies more leeway to make decisions about how they reclaim mine sites.
"I think that we ought to be saying that this is what we want, and we'll let you figure out how to get there," Wise said. "I look at what the final goal is, not how you get there."Wise added that he is concerned that his approach will bring more court challenges."I can see people whipping lawsuits together as I speak, working at their word processors," he said. "So, we're going to follow the federal laws and regulations."
To contact staff writer Ken Ward Jr., use e-mail or call348-1702.
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