Fish & Wildlife List Diamond Darter As Endangered Species

The US Fish & Wildlife Service has decided to list the Diamond Darter, a fish that is only found in the Elk River, as endangered.  A news release from FWS is found here.  The following is an excellent summary of the facts surrounding the listing, from Jason Bostic of the WV Coal Assn.  

In the July 26, 2012 the F&WS proposed listing the diamond darter under the ESA.  Concurrent with its proposed classification as an endangered species, the F&WS proposed to designate 28 miles of the lower Elk River in West Virginia (from the Confluence of King Shoals Run near the Wallback Wildlife Management Area to near Knollwood Drive in Charleston) as “critical habitat” for the species.  This section of the Elk River contains the only known remaining populations of diamond darters in the country.  F&WS also proposed to classify 95 miles of the Green River in Kentucky as critical habitat since diamond darters historically inhabited the area, although none exist there today.  

F&WS has NOT made a decision regarding critical habitat designation in the notice that will be published tomorrow.  The decision regarding critical habitat will come later, as will any proposed protection measures.

In the July 2012 Federal Register notice announcing the proposed listing and critical habitat designation, F&WS identified several factors that may jeopardize the continued existence of the diamond darter, including water quality impacts associated with coal mining activities undertaken on tributaries to the Elk River.  F&WS claims that sedimentation, metals and increases in downstream conductivity threaten the existence of other sensitive fish species and therefore pose a threat to the diamond darter.  The agency’s conclusions regarding conductance and fish impacts is largely based on studies undertaken by the agency on the Kentucky Arrow Darter in the Cumberland River Basin.

Although mining activities generally do not directly exist within the 28-mile range of proposed critical habitat designation area, concerns related to the alternation of that critical habitat area could be applied to any proposed / current mining activity on any of the Elk River’s tributaries.  The terms of the ESA that require federal agencies to ensure that permitted activities will not jeopardize the continued existence of an endangered species and/or its habitat would apply directly to Clean Water Act (CWA) Section 404 permits issued by the U.S. Army Corps of Engineers and indirectly to the issuance of permits by the state under the Surface Mining Control & Reclamation Act, and potentially to state issued Clean Water Act Section 402 NPDES permits.  

King Coal Highway Renamed For Mike Whitt

In a nice tribute to a man who exemplified unselfish public service, the King Coal Highway in Mingo County was named after Mike Whitt, who died a year or so ago.  The Williamson Daily News has the story here.   If only every county had someone working for it as hard as Mike did for Mingo County.

Dam Owner Education Program August 8 in Eastern Panhandle

      The West Virginia Department of Environmental Protection’s Dam Safety Program is sponsoring a one-day workshop for dam owners and monitors on Thursday, Aug.

8, at the Mountain Lake Club near Charles Town. 

The workshop, which will run from 8:30 a.m. to 4:30 p.m., is designed to provide practical information on topics of importance to anyone who owns or monitors a dam. Topics to be covered include: Dam Safety Act and rule; owner responsibilities and liabilities; basic terminology; causes of dam failures; emergency action plan guidance for dam monitors; maintenance problems and solutions; and remediation projects, hiring an engineer, costs.

The early registration fee is $25. It will cost $35 at the door. As part of the registration fee, workshop participants will receive a CD-ROM with the presentations and other valuable resources. To register, or for more information, contact the WVDEP’s Anita Chapman at 866-568-6649, ext. 1006 or email Anita.R.Chapman@wv.gov.

Australia Moving From Carbon Tax To CarbonTrading

Last year Australia adopted a carbon tax, one that hasn't been too well received. It was a pretty hefty tax of about $24 Aus, much higher than about any other country.  Green feeling evidently overcame rational thought, as Australia was hamstringing itself in the world markets. It was supposed to be spread out broadly among all the big companies, but as Phillip Hutchings learned, that wasn't the case.   Mr. Hutchings provides an excellent analysis of the carbon tax here.

The Australian government has retreated, and will be moving to a carbon trading system, in line with those in Europe and elsewhere. Australian politicians are now saying that the country  should be contributing to GHG reduction in a manner (and to a degree) consistent with other nations, which seems about right.  Platts has the story here The primary effect will be to drop the price for a ton of CO2 equivalent down to the European price of about $6 US, and it will probably drop further.  (I seem to recall that the US carbon trading market collapsed and trading was suspended a few years ago.)   .

Willis Eschenbach has calculated on Watts Up With That how much the province of British Columbia could reduce global warming by its efforts to be carbon free, and came up with a figure of .005 of a degree.  Are all these carbon schemes worth anything?

Coal - It's Not Just For Burning Anymore

Forbes magazine reminds us that coal isn't useful just for burning; it can also be the building block of structural and electrical components with interesting characteristics.   The West Virginia Coal Association reminds us that  coal can be foamed into insulation and other useful products.  Perhaps one day coal will be in greater demand as a source of  graphene and carbon fiber than for power generation.

Consol Shows Off State-Of-The-Art Water Treatment Plant

Consolidation Coal Company has recently unveiled a $200 million treatment  plant and pipeline system to handle acid water from numerous underground mines in the Morgantown area. Joselyn King of the Wheeling Intelligencer/Wheeling News Register reports on it here.  The treatment plant was a necessity if Consol was going to continue operatingits mines,  its willingness to construct the plant speaks volumes for its commitment to the area.

Of particular interest is the possible use of the treated water as frack water by the oil and gas industry. Given the plant's location in the heart of the liquids-rich portion of the Marcellus, that would seem like a great opportunity for Consol to recoup a small part of the cost of running the plant.

West Virginia Supreme Court Defines "Surface Only"

Years ago, in a poorly-written decision, the WV Supreme Court decided that a conveyance of "surface only" was inherently  ambiguous in the case of  Ramage v. South Penn Oil Co., 94 W.Va. 81, 118 S.E. 162 (1923).  In a recent well-written opinion by Justice Ketchum,  the Supreme Court reversed Syllabus Point 1 of Ramage and gave those words a reasonable, set definition.

The word “surface,” when used in an instrument of conveyance, generally means the exposed area of land, improvements on the land, and any part of the underground actually used by a surface owner as an adjunct to surface use (for example, medium for the roots of growing plants, groundwater, water wells, roads, basements, or construction footings).

You wouldn't think that "surface only", in a property conveyance, would be unclear, but you would be wrong. I have exactly this issue in a pending case, and I look forward to citing the court's decision.

The decision is Faith United Methodist v. Morgan, Case No. 12-0080 (June 13, 2013). Thanks to Tom Hurney for writing about this in one of  his excellent emails on behalf of the Defense Trial Counsel.