Stream Protection Rule Regarding Coal Mining Impacts on Waterways Rescinded in February 2017 After Finalization in December 2016

In early February 2017, Congress used the Congressional Review Act to rescind the U.S. Office of Surface Mining Reclamation and Enforcement’s (OSMRE) “Stream Protection Rule,” on impacts of coal mining on waterways.  The rule had been finalized with Federal Register publication on December 20, 2016.  OSMRE’s Web site on the proposed rule is at http://www.osmre.gov/programs/rcm/streamprotectionrule.shtm; a link to the text of the proposed rule is available there.  OSMRE first proposed the rule on July 16, 2015 (the draft rule was published in the Federal Register on July 27, 2015).

According to the OSMRE Web site on 2/14/17, the rule was intended to have done the following:

“…[Define] ‘material damage to the hydrologic balance outside the permit area’ for the first time…clarifying that the statutory prohibition on the approval of proposed operations that would result in material damage to the hydrologic balance outside the permit area applies to both surface and underground mining operations.  Under SMCRA [the Surface Mining Control and Reclamation Act, passed in 1977], the regulatory authority may not approve a permit application unless the application demonstrates, and the regulatory authority finds, that the proposed operation would not result in material damage to the hydrologic balance outside the permit area.

“…[Require] that the regulatory authority specify the point at which adverse mining-related impacts on groundwater and surface water would constitute material damage to the hydrologic balance outside the permit area reach that level of damage.  It further provides that the regulatory authority must specify threshold values for surface water and groundwater parameters that will trigger an evaluation of whether the permit must be revised to prevent the occurrence of material damage to the hydrologic balance outside the permit area.

“…[Expand] the baseline data requirements for permit applications for proposed coal mining operations to ensure that the permittee and the regulatory authority have a complete picture of pre-mining conditions to which the impacts of mining can be compared.  Monitoring during mining and reclamation will include a comprehensive suite of parameters for both surface water and groundwater to ensure that the impacts of mining are identified in a manner that will enable timely initiation of corrective measures.

“…[Require] the restoration of the physical form, hydrologic function, and ecological function of the segment of a perennial or intermittent stream that a permittee mines through.  Additionally, it requires that the post-mining surface configuration of the reclaimed mine site include a drainage pattern, including ephemeral streams, similar to the pre-mining drainage pattern, with exceptions for stability, topographical changes, fish and wildlife habitat, etc.

“…[Require] the establishment of a 100-foot-wide streamside vegetative corridor of native species (including riparian species, when appropriate) along each bank of any restored or permanently-diverted perennial, intermittent, or ephemeral stream.”

The proposed rule’s announcement in July 2015 raised immediate objections from the National Mining Association, some elected officials from mining states like West Virginia, and others about its potential economic impacts.  On the other hand, some environmental organizations criticized the proposal for allowing some variance, under certain conditions, from the 100-foot buffer requirement established in 1983; those conditions are described in the proposed rule on p.364 (part of the section entitled, “What additional requirements apply to proposed activities in, through, or adjacent to streams?”).

The Stream Protection Rule was the latest in a series of regulatory and litigation developments since the 1977 passage of the federal Surface Mining Control and Reclamation Act.  Some of those developments that led to the Stream Protection Rule were the following:
*1983 OSMRE rule requiring a 100-foot buffer zone along streams;
*2008 OSMRE Stream Buffer Zone Rule allowing deposition of mining materials within the 100-foot zone, with certain requirements for reducing impacts;
*2009 Memorandum of Understanding among the Interior Department, U.S. EPA, and Army Corps of Engineers on reducing stream impacts of coal mining, simultaneously starting OSMRE’s process to develop the current proposed regulation; and
*February 2014 ruling by the U.S. District Court for the District of Columbia vacating OSMRE’s 2008 Stream Buffer Zone Rule and reinstating the 1983 buffer zone.

Sources:

House Republicans Vote to End Rule Stopping Coal Mining Debris From Being Dumped in Streams, Associated Press, as published by Time, 2/1/17.

Republicans Move to Block Rule on Coal Mining Near Streams, New York Times, 2/2/17.

Congress passes first rollback of Obama environmental rule, USA Today, 2/2/17.

Federal Register, “Stream Protection Rule,” 81 FR 93066, 12/20/16, online at https://www.federalregister.gov/documents/2016/12/20/2016-29958/stream-protection-rule.

Interior Department Finalizes Stream Protection Rule to Safeguard Communities from Coal Mining Impacts, U.S. Department of the Interior News Release, 12/19/16.

Interior Department Unveils Proposed Stream Protection Rule to Safeguard Communities from Coal Mining Operations, U.S. Department of Interior News Release, 7/16/15.

National Mining Association Calls on Congress to Block OSM’s Costly, Unnecessary Stream Rule
, National Mining Association News Release, 7/16/15.

Interior unveils rule aimed at protecting streams from mining
, and Industry vows to fight ‘needless and conflicting’ stream rule, both from Greenwire, E&E Publishing, 7/16/15 (subscription required for access).

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