Read more mountaintop removal stories by clicking here.

HUNTINGTON - Scientists have little evidence that coal operators can rebuild the miles of streams mountaintop removal mining buries beneath waste rock and dirt, a federal judge was told Wednesday.

Regulators approve such projects anyway, through a fatally flawed formula and a review process that stifles public input, experts told U.S. District Judge Robert C. Chambers.

Mark Brinson, an East Carolina University biologist, told Chambers the Army Corps of Engineers' formula would not score well if a student submitted it in one of his classes.

"I would write a big 'resubmit,'" Brinson said. "I wouldn't even grade it."

Brinson was among the experts who testified Wednesday in the first day of hearings in the latest legal skirmish over mountaintop removal coal mining.

Lawyers for the West Virginia Highlands Conservancy want Chambers to block a permit for two adjacent Fola Coal Co. strip mines along the Clay-Nicholas County line.

Fola proposes to mine nearly 10 million tons of coal from a 900-acre area in Lilly Fork of Buffalo Creek near the town of Gilboa.

In the process, more than five miles of streams would be buried beneath 10 valley fills, according to permit documents. Company officials propose to offset this loss by restoring or creating nearly five miles of streams on a separate reclaimed mine site.

Already, Fola buried more than 500 feet of streams without the proper permit. Corps officials took no enforcement action, concluding that the violation did "not present an immediate threat to life or property."

Conservancy lawyer Jim Hecker told Chambers the corps hid the mine's true environmental impacts by not giving the public a chance to comment on hundreds of pages of permit documents that were released only after the project was approved.

"This is a fundamentally unfair process," Hecker said, holding up a thick stack of permit records. "It can only be fair if the public has access to and can comment on this before the corps makes its decision."

Fola lawyers warned Chambers that a preliminary injunction would shut down the mine. The company is running out of coal and is already short filling its monthly shipments.

Read more mountaintop removal stories by clicking here.

HUNTINGTON - Scientists have little evidence that coal operators can rebuild the miles of streams mountaintop removal mining buries beneath waste rock and dirt, a federal judge was told Wednesday.

Regulators approve such projects anyway, through a fatally flawed formula and a review process that stifles public input, experts told U.S. District Judge Robert C. Chambers.

Mark Brinson, an East Carolina University biologist, told Chambers the Army Corps of Engineers' formula would not score well if a student submitted it in one of his classes.

"I would write a big 'resubmit,'" Brinson said. "I wouldn't even grade it."

Brinson was among the experts who testified Wednesday in the first day of hearings in the latest legal skirmish over mountaintop removal coal mining.

Lawyers for the West Virginia Highlands Conservancy want Chambers to block a permit for two adjacent Fola Coal Co. strip mines along the Clay-Nicholas County line.

Fola proposes to mine nearly 10 million tons of coal from a 900-acre area in Lilly Fork of Buffalo Creek near the town of Gilboa.

In the process, more than five miles of streams would be buried beneath 10 valley fills, according to permit documents. Company officials propose to offset this loss by restoring or creating nearly five miles of streams on a separate reclaimed mine site.

Already, Fola buried more than 500 feet of streams without the proper permit. Corps officials took no enforcement action, concluding that the violation did "not present an immediate threat to life or property."

Conservancy lawyer Jim Hecker told Chambers the corps hid the mine's true environmental impacts by not giving the public a chance to comment on hundreds of pages of permit documents that were released only after the project was approved.

"This is a fundamentally unfair process," Hecker said, holding up a thick stack of permit records. "It can only be fair if the public has access to and can comment on this before the corps makes its decision."

Fola lawyers warned Chambers that a preliminary injunction would shut down the mine. The company is running out of coal and is already short filling its monthly shipments.

Dozens of miners and their families packed the Huntington courtroom and lined up in the hall outside Wednesday's hearing. Most wore shirts from Fola's parent company that said, "CONSOL Energy: America's On Switch."

"We didn't ask these people to be here," Fola lawyer Jim Crockett said, pointing to the gallery. "They volunteered because this is about their jobs."

The Fola battle comes just after last week's announcement that the Bush administration is moving forward with a rewrite of Interior Department rules to ease its approval of valley fills. The dispute is the latest round of legal wrangling over new mining permits issued by the corps since Chambers ruled last year that the agency needed to conduct more detailed reviews before approving such projects.

Among other findings, Chambers ruled in March 2007 that the corps had failed to "take a hard look" at the ecological functions lost when headwater streams were buried by mining waste. Assessing those lost functions is important. When it approves mining permits, the corps concludes that company "mitigation" plans - mostly trying to rebuild or replace lost streams - will offset the ecological functions eliminated by valley fills.

Since that ruling, the corps has come up with a new method for calculating stream functions. Agency officials call it the Interim Functional Assessments Analysis, or IFAA.

In court papers, corps lawyers argued that the agency used this process in "evaluating direct impacts of [Fola's mining proposal], and to provide a basis to measure mitigation success."

But Emily Bernhardt, a Duke University stream ecologist, said the corps' formula does not spell out how it accounts for the core role of streams in the movement of water, energy and nutrients.

"I don't see how you can assess something as basic as hydrology without knowing anything about water flow," Bernhardt testified.

Brinson, who helped the corps write a much more detailed formula for assessing wetlands, agreed.

"You need to be able to measure some of these functions, otherwise, you're just whistling in the dark," Brinson said.

Brinson and Bernhardt both told Chambers that the corps' new formula is not nearly detailed enough to truly measure what is lost when headwater streams are buried, let alone decide if mine operator proposals to replace lost ecological functions will work.

Bernhardt said, "There isn't a great deal of evidence - some would argue no evidence at all - that recreating streams" will work on mountaintop removal sites. "The likelihood of achieving true biological re-creation is very limited."

Reach Ken Ward Jr. at kw...@wvgazette.com or 348-1702.