VOLUME 34, NUMBER 1 SEPTEMBER 2002

HOSPITALITY: Suva Bastin, Hospitality Chair, will provide refreshments following Jan’s presentation.

Summer is coming to an end, schools are starting back up, and Audubon is starting a new year also. I look forward to more educational programs, bird counts, and the potluck. I would also like to see Audubon get more actively involved at the local level to improve the habitat of our feathered and other nonhuman neighbors. We will be discussing ways that this can be done at our September meeting. In addition I want to invite people to contact me with new ideas and suggestions for projects, programs, and other educational opportunities. Happy New Year!

Jan Shaw (current president of the Nashville TOS) will be presenting slides and video of her Panama birding trip on September 5. Jan traveled to Panama in March of this year and stayed in the Canopy Tower Lodge. As the name suggests, the lodge rises up into the rain forest canopy allowing great views of birds (and other critters!). From the tower roof or dining room windows Jan saw Blue Cotingas, Green Shrike-Vireos, Keel-billed Toucans, Bay-breasted warblers, Three-toed sloths, and thousands of migrating Swainson's hawks. Jan will also share sightings of Resplendent Quetzals and Violet Sabrewings from her visit to the Chiriqui Mountains.

Retirement has not helped my organizational skills at all. Therefore, I am running a bit late in finalizing the list of field trips for the 2002-2003 Warioto year. However, let me share with you some of the locations I plan for us to visit during our year: Bledsoe State Park near Gallatin; Duck River National Wildlife Refuge near New Johnsonville, TN and/or Wheeler National Wildlife Refuge, Decatur, AL.; wildflowers along the Bicentennial Trail at Ashland City, and Cedars of Lebanon State Park.

Additionally, I'm seriously considering a foray to Beaman Park at Joelton, but it is not nearly as accessible as the previously mentioned facilities. Another super winter birding location is the Gibson settling ponds at a giant, cold-fired electric generating plant just north of Evansville, IN that might be of interest to several. It's a fairly easy trip and can be either quite accessible from the car, or you can hike about. And, let's not omit Reelfoot Lake, some of us never get tired of the eagles and accompanying winter birds. Also, under current consideration is Mingo National Wildlife Refuge in Southeastern Missouri. Some of us visited there many years ago and it still remains in my memory as a super birding location and a great field trip site!!

Plus, with David Snyder retiring and lolling about I'm hoping he's going to be leading a couple of special birding trips for us. We are especially considering some spring migration walks at Dunbar Cave.

But, the most important factor is - WHERE DO YOU WANT TO GO THIS YEAR??? Please let me know as soon as possible since Daniel Moss, program chair, and I are attempting to coordinate some of our field trips and programs.

Again this year, we will be meeting in the Sundquist Science Complex (SSC). If you haven’t been to this building yet, you will discover that it is easy to find. It is the BIG building on the corner of College and Eighth streets. Parking is found behind the Trahern (art) Building. You can get to this lot from Eighth Street via Jackson Alley (between Trahern and Music/Mass Communication) or from Marion Street via Henry Street. There is a small fountain near the southeast corner of the lot. [See the map on the following page.] Follow the granite-paved path to the main doors (the side toward Trahern). You can also park in the gravel parking lot on Eighth Street and enter through the side doors. Take care crossing the street!

Through the main doors you will enter the large Tommy Head Atrium. The atrium, also paved with granite, is open up to the glass roof more than three stores above. We will meet in E106A, a large lecture hall on the ground floor accessed from the atrium.

To board members: We will meet in the Biology Conference Room, D126. The D-wing is closest to the corner of 8^th and College (the SE corner).

There is not much on the legislative front to report since congress is in summer recess, but that does not mean that there are not the usual number of important conservation issues to consider. The top on my list is the recent decision by the US EPA to reinterpret the definition of "waste" in reference to what can be dumped into our nations waters. This event has gone largely unnoticed by the public, but has sent shock waves through those sectors of the environmental community that recognize its real significance. In short, the action taken by the Bush administration’s appointees to the US EPA represent a back door maneuver to eliminate, for all practical purposes, the Clean Water Act (CWA).

How did we get to such a sad state? Surprisingly, it all starts with coal mining. What might be the relationship between coal mining and the Clean Water Act? In the Western USA where coal is mined from relatively level land and rain is scarce, the conflict between coal mining and clean water is less direct. However, in the eastern USA where most coal is mined from mountainous terrain that receives abundant rainfall the conflict is direct and very dramatic. In order for eastern coal mining operations to remain economically competitive with western mining outfits, a practice now formally referred to as Mountaintop Mining/Valley Fill (MTM/VF; note the government’s euphemistic omission of the word "Removal" from the moniker) was developed. It uses blasting and massive earth moving equipment, drag lines, to remove that part of the mountain overlying the coal seam, and to deposit the top of the mountain in the adjacent valleys. Since there are several thin coal seams at various elevations in the mountains, the mountains are progressively lowered until the bottom seam is removed. The net effect is to lower the mountains and raise the valleys, i.e., to flatten the landscape. The practice is currently most common in West Virginia, but is rapidly spreading to other areas of Appalachia.

This mining practice conflicts with the CWA for the simple reason that there are streams in the valleys that are filled with what previously were the former mountaintops. Obviously this is a clear case of dumping waste into a stream. Environmental groups sued the US EPA in federal court to compel them to enforce the law. One of the many perverse legal arguments the mining industry put forward to defend the practice was that since the stream that once flowed through the valley that is filled no longer exists, it is no longer subject to the protections of the CWA. Another of the mining interests specious legal arguments was that the mountaintops being deposited into the stream while filling the valley are not waste, which is governed under the CWA and enforced by the US EPA, but rather, fill, which is governed by the Rivers and Harbors Act enforced by the US Corps of Engineers. The difference in the terms "fill" versus "waste" is critically important in determining the legal statutes that apply. In October 1999, Federal Circuit Judge Charles Hayden ruled that the practice of MTM/VF had to be curtailed because it clearly represented the deposit of "waste" into the streams and was a violation of the CWA. Judge Hayden ruled against virtually every legal argument put forward by the coal mining industry, often resorting to language that was both eloquent and damning of the coal industry’s arguments. For example, in response to the industry position that provisions of the CWA do not apply the valley fills because they "are not meant to be assimilated or transported by a stream; they are meant to stay in one place." Judge Hayden ruled: "This argument ignores the reality that valley fills are waste disposal projects so enormous that, rather than the stream assimilating the waste, the waste assimilates the stream."

Judge Hayden’s ruling effectively would have ended MTM/VF in the USA. In order to allow the legal issues to work their way through the appeals process he granted a stay to his own order so that mines could continue to operate while the legal process proceeded. On 24 April 2000 the 4^th circuit federal appeals court ruled that Judge Hayden had no authority to make the ruling that he did on the grounds of "sovereign immunity" which holds that citizens cannot bring suit in a federal court against a matter of state sovereignty. Environmental groups dispute that contention, pointing out that the state laws in question are specifically required to be in compliance with federal statutes, and promised to appeal the 4^th circuit’s ruling to the supreme court. On 23 January 2002 the supreme court refused to hear the appeal of the 4^th circuit’s ruling. However, neither of these decisions bears on the question of Judge Hayden’s ruling that MTM/VF violates the Clean Water Act. A similar court case in the 3^rd circuit may yield a conflicting opinion, in which case the US supreme court would be more likely to weigh in on the issue.

The issue did not die there. In order to avoid enforcing the CWA the US EPA has attempted to redefine the waste from mountaintop mines as fill to circumvent the CWA and allow the US Corps of Engineers to issue dredge and fill permits to MTM/VF. In May 2002 the USEPA released a long awaited draft Environmental Impact Study on the environmental impacts of MTM/VF. The draft concluded that "without tougher environmental regulation and better reclamation MTM/VF is anticipated to wipe out 230,000 acres of ecologically diverse hills and hollows. Combined with future forestry activities in the region almost one million acres of forest could be damaged. If mountaintop removal mining is not dramatically curbed: many more miles of streams will be buried by valley fills; streams that aren’t buried could be seriously polluted; and wildlife, songbirds, and fish in a rare, ecologically diverse area will likely be lost. The study refutes coal industry claims that reclamation techniques can restore the ecological heath of the mined areas. It suggests that the damage to streams and forests will be severe, and for all practical purposes, irreversible. Despite the severe negative environmental impacts described in the draft EIS, the Bush administration has decided to try to use the EIS process as a vehicle to streamline the permitting process for MTM/VF operations.

Wait! Hope lives yet! On 8 May 2002 Judge Hayden ruled in a separate suit brought by a group called Kentuckians for the Commonwealth, Inc. that the US EPA procedural rule change was illegal and constituted a legislative action on the part of a federal agency; not a simple interpretive change of a rule. Therefore, this action is illegal because only the congress of the United States has the authority to create new law. "... The court holds that S 404 of the Clean Water Act does not allow filling the waters of the United States solely for waste disposal. Any rule-making or permit approval that holds otherwise is ultra vires, beyond agency authority conferred by the Clean Water Act. Only the United States Congress can rewrite the act to allow fills with no purpose or use than the deposit of waste..." Since Judge Hayden’s latest ruling governs a federal agency, rather than a state entity, it cannot be overturned on the procedural grounds of "sovereign immunity" used to overturn his prior ruling. It is certain that these issues will ultimately be decided in the US supreme court. For now the fate of thirty years of environmental progress and the nation’s entire water quality program are protected by one thin black line, Judge Charles Hayden’s federal judicial robe. (See http://www.wvgazette.com/static/series/mining/ for the complete, award winning Charleston Gazette coverage of this story by Ken Ward Jr.)