SENATE CONCURRENT RESOLUTION NO. 62

(By Senators Facemire, Plymale, Kessler (Mr. President), Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams and Yost)

Urging the United States Army Corps of Engineers and Federal Highways Administration to respect state land use planning processes in carrying out their duties under the National Environmental Policy Act and Clean Water Act and to reject any proposed alternatives which fail to give full effect to state land use planning decisions and urging the United States Environmental Protection Agency to cease its interference with achievement of the goals of state land use planning.

    Whereas, The Constitution of the United States of America establishes a system of dual sovereignty in which certain powers and authority are assigned to the federal government and certain powers and authority are reserved to state governments; and

    Whereas, The Constitution reserves power and authority over land use planning to state and local governments; and

    Whereas, Congress, in the first section of the federal Clean Water Act, makes it clear that “[i]t is the policy of the Congress to recognize, preserve and protect the primary responsibilities of States . . . to plan the development and use (including restoration, preservation and enhancement) of land and water resources. . . .”, 33 U. S. C. §1251(b); and

    Whereas, Historically, the economies of the coalfield counties of West Virginia have lacked the diversification necessary to sustain them following the extraction of the readily mineable coal in these counties, primarily due to a lack of developable land; and

    Whereas, The Legislature recognized the unique ability of the mining industry to address this issue by creating developable land as a post-mine land use. Therefore, it has established a land use planning process calling for Land Use Master Plans to be developed at the county level, subject to standards established by the Office of Coalfield Community Development, to plan for post-coal mining economic development in these areas; and

    Whereas, It was the intent of the Legislature that counties emulate in their land use planning processes the model developed by the Mingo County Redevelopment Authority under the direction of former executive director, the late Mike Whitt; and

    Whereas, In 2002, the Mingo County Redevelopment Authority hired an engineering company to develop a Land Use Master Plan. The authority entered into a collective agreement with a mining contractor to construct a utilities corridor, whereby the following year the West Virginia Department of Transportation signed a contract with the contractor for construction of the I-73/I-74 King Coal Highway, Red Jacket Section, and the Federal Highway Administration authorized funds for the project; and

    Whereas, In 2004, Mike Whitt and the Mingo County Redevelopment Authority were awarded the EPA's Region 3 Phoenix Award, an award that recognizes individuals and groups who are working to solve the critical environmental challenge of transforming abandoned industrial areas into productive new uses. The most notable of new uses are development of the Mingo County Wood Products and Industrial Park; development of the Belo Industrial Park; development of Mingo County Fish Hatchery; construction of the new Mingo Central High School; construction of the Air Transportation Park; and construction of the Coal-To-Liquids Plant; as well as future housing subdivisions, commercial developments and recreation areas such as the Twisted Gun Golf Course; and

    Whereas, These plans were developed by the Mingo County Redevelopment Authority through public meetings and public hearings and were eventually approved by the Mingo County commission; and    Whereas, The Mingo County Land Use Master Plan envisions that the land on the top of Buffalo Mountain and vicinity in Mingo County be utilized for construction of the four-lane I-73/I-74 King Coal Highway along with hundreds of acres of flat land alongside it for economic development; and

    Whereas, Senator Robert Byrd secured $3 million for infrastructure development for the corridor construction and secured an additional $3.2 million in 2008; and

    Whereas, The West Virginia Department of Environmental Protection (DEP) has approved a surface mine permit for Consol of Kentucky which authorizes Consol of Kentucky to mine Buffalo Mountain and vicinity and requires it to provide the road bed for a five-mile segment of the King Coal Highway, along with hundreds of acres of developable land alongside it, all at no cost to the state or the federal government; and

    Whereas, The construction of the I-73/I-74 Corridor from Taylorsville to Gilbert Creek, approximately eleven miles, includes infrastructure improvements and planned development, utilizing each valuable section of property for a “greater and better use” as defined in the Clean Water Act of 1972; and

    Whereas, The post-mine land use approved by the Department of Environmental Protection for Buffalo Mountain and vicinity fully comports with the Mingo County Land Use Master Plan and will save the federal and state governments over $110 million in highway construction costs and will provide Mingo County the opportunity to achieve a diversified post-coal economy, all as intended by the Legislature; and

    Whereas, The Army Corps of Engineers is considering the application of Consol of Kentucky for the permit Consol needs under Section 404 of the federal Clean Water Act in order to accomplish its mining and approved post-mine land use in accordance with the Mingo County Land Use Master Plan; and

    Whereas, Incident to the Corps’ Section 404 permitting, it is participating with the Federal Highways Administration in development of a Supplemental Environmental Impact Statement under the National Environmental Policy Act for the highway alignment on Buffalo Mountain, economic development, mining and other ancillary activities; and

    Whereas, The United States Environmental Protection Agency (EPA) is advocating that the Federal Highways Administration and the Corps consider its alternative design for the mine and highway road bed, which would eliminate all of the flat land for economic development along the highway, disregarding and contradicting the Mingo County Land Use Master Plan and the whole purpose behind the land use planning policy established for this sovereign state by the Legislature; and

    Whereas, The Federal Highways Administration and the Corps are accepting comments on their Draft Supplemental Environmental Impact Statement through May 22, 2013; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Legislature hereby urges the United States Army Corps of Engineers and Federal Highways Administration to respect state land use planning processes in carrying out their duties under the National Environmental Policy Act and Clean Water Act and to reject any proposed alternatives which fail to give full effect to state land use planning decisions and urges the United States Environmental Protection Agency to cease its interference with achievement of the goals of state land use planning; and, be it

    Further Resolved, That the West Virginia Legislature declares that the post-mine land use approved by the Department of Environmental Protection for Buffalo Mountain to be in accordance with the Mingo County Land Use Master Plan and the state’s policy for land use planning; and, be it

    Further Resolved, That the Legislature strongly believes the alternative design advocated by the United States EPA: (1) Violates the Mingo County Land Use Master Plan and the state’s policy for land use planning; (2) cannot be considered to be a legitimate alternative to the design approved by the DEP; and (3) must be rejected by the Army Corps of Engineers and Federal Highways Administration; and, be it

    Further Resolved, That the Legislature requests that the United States EPA respect the state’s land use planning processes and cease its interference in the state’s attempts to achieve the goals of these processes in this case and in all others; and, be it     Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Governor of West Virginia for inclusion, along with any remarks he cares to provide as to the comments of the State of West Virginia on this matter, to the Army Corps of Engineers, Federal Highways Administration, United States EPA, Council on Environmental Quality and such other persons as he sees fit.