Court Clears Way for Lawsuit to Protect Endangered Species from Destructive Coal Mining in Tennessee

January 29, 2015

Court Clears Way for Lawsuit to Protect Endangered Species from Destructive Coal Mining in Tennessee – Groups Allege that Federal Agencies Violated Endangered Species Act in TN Mining Approvals

Knoxville, TN – The U.S. District Court for the Eastern District of Tennessee has issued a decision allowing a lawsuit to proceed against the federal Office of Surface Mining (OSM) and the U.S. Fish and Wildlife Service (USFWS). The lawsuit, a first of its kind, argues that the agencies have violated the Endangered Species Act by approving mining permits for the Zeb Mountain and Davis Creek Area 5 surface mines in Tennessee.

Defenders of Wildlife, Statewide Organizing for Community eMpowerment (SOCM), Tennessee Clean Water Network (TCWN), and the Sierra Club argue that OSM and the USFWS failed to fully consider the effects that specific forms of pollution from mining operations, as evidenced by the best science and data available, would have on the endangered Cumberland darter and the threatened blackside dace, two fresh water fish found primarily in the areas threatened by mining waste pollution from these sites.

The decision resolves efforts by the agencies to block the litigation. The court will next consider arguments going to the merits of the groups’ claims.

Tom Chadwell has lived with the pollution and environmental damage of strip mining near his home for decades.  “My family is pleased that this case can moved forward,” said Chadwell, a Sierra Club member.  “The area around Davis Creek has been the focus of coal strip mining operations for generations. It gives me hope for the future of the environment of my homeplace to think the court and society may begin to offer some degree of protection to the more sensitive species in our ecosystem.”

The groups contend that mining pollution – as indicated by high levels of conductivity – put the future of the blackside dace and Cumberland darter at risk. Conductivity is a measure of the ability of fresh water to carry an electric current. The higher the conductivity level in Appalachian streams, the more pollutants are in the water and the greater the threat to certain species of aquatic life. Conductivity is measured in microSiemens per centimeter (µS/cm) with a safe level for the darter and dace being less than 240 µS/cm. However, tests of the water downstream from the Zeb mountaintop removal mine site show conductivity ranging from 538 to 886 µS/cm – far outside safe limits for the fish. In fact, in 2010 the Environmental Protection Agency reviewed state mining permits in Appalachia and found that none of them took steps to prevent pollution that increases conductivity in streams mining operations filled with debris.

“The science is clear,” says Patrick Morales, SOCM President, “The toxic substances released by surface mining, particularly mountaintop removal mining, are a huge threat to fish populations in Appalachia.”

“Thankfully, the court realizes the importance of protecting our Tennessee waterways, and we hope that this will help curtail future degradation to our water,” Morales added.

Defenders of Wildlife, SOCM, TCWN and Sierra Club are represented in this action by Defenders of Wildlife senior staff attorney Jane Davenport and TCWN’s attorney Stephanie Durman Matheny.

“The court’s decision sets an important precedent allowing Tennesseans to exercise their rights to protect threatened and endangered species from the harmful effects of strip mining,” said Matheny. “Cleaner water for imperiled fish means cleaner water for people too.”

“It is the responsibility of our federal agencies to ensure that mining and other development efforts do not destroy our nation’s fish and wildlife,” said Davenport. “The court’s decision to let this case move forward was absolutely correct. The evidence is clear: the agencies did not consider the devastating impacts these proposed mines could have on imperiled fish species in the region. These impacts need to be adequately assessed before the projects get underway.  At the end of the day, this is a lawsuit about water quality, and degraded water quality is a warning flag of significance not only for the affected species of fish but for humans downstream as well. ”

Mountaintop removal and other forms of surface mining have already caused a significant decrease in the dace and darter populations. Mountaintop removal is an extremely destructive form of coal mining. Mines clear-cut timber and undergrowth, blast open the earth, and destroy streams, including by filling them with mining waste. This devastating practice poisons drinking water, lays waste to wildlife habitat, increases risk of flooding, and wipes out entire communities. According to a 2005 Environmental Impact Statement, mountaintop removal coal mining has buried and contaminated more than 2,000 miles of streams in Appalachia – and many more miles have been buried since then.

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