Building a Stream Protection Rule
Final Stream Protection Rule
The Office of Surface Mining Reclamation and Enforcement (OSMRE) has finalized the Stream Protection Rule to improve the balance between environmental protection and providing for the Nation’s need for coal as a source of energy. The final rule better protects streams, fish, wildlife, and related environmental values from the adverse impacts of surface coal mining operations and provides mine operators with a regulatory framework to avoid water pollution and the long-term costs associated with water treatment.
The rule defines “material damage to the hydrologic balance outside the permit area” for the first time and 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 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. The rule requires 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.
The rule expands 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 premining 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.
The stream protection rule requires 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 postmining surface configuration of the reclaimed minesite include a drainage pattern, including ephemeral streams, similar to the premining drainage pattern, with exceptions for stability, topographical changes, fish and wildlife habitat, etc. The rule also, requires 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 stream protection rule modernizes the regulations governing the mining of coal and reclamation of mined lands to reflect advances in scientific knowledge and mining and reclamation techniques in the 30-plus years since most of the regulations were last revised in a comprehensive fashion.
Record of Decision
The Record of Decision (ROD) documents and explains the decision of the Assistant Secretary for Land and Minerals Management on the alternatives for the stream protection rulemaking. The ROD was drafted pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq., and in compliance with the Council on Environmental Quality’s (CEQ) implementing regulations for NEPA, 40 CFR parts 1500 through 1508, and DOI’s implementing regulations for NEPA, 43 CFR part 46.
The Final Environmental Impact Statement (FEIS) is complete and publicly available. About 95,000 comments were received on the proposed rule, Draft Regulatory Impact Statement, and DEIS. The FEIS, including Alternative 8, has been revised, as appropriate, in response to comments and other information received on the DEIS and supporting documents. The FEIS for the Stream Protection Rule analyzes the environmental, socioeconomic, and other effects of the preferred alternative—Alternative 8, as revised—and a reasonable range of other alternatives, including a No Action Alternative.
Final Regulatory Impact Analysis
The final regulatory impact analysis indicates that, between 2020 and 2040, the rule will result in the protection or restoration of 22 miles of intermittent and perennial streams per year, improved water quality in 263 miles of intermittent and perennial streams per year downstream of minesites, and improved reforestation of 2,486 acres of mined land per year (approximately 6,000 miles of streams and 52,000 acres of forest) over the next 21 years.
2016 Biological Opinion
The Endangered Species Act of 1973 (ESA) requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure their actions do not jeopardize the continued existence of an endangered or threatened species or adversely modify critical habitat. On December 16, 2016, under section 7 of the ESA, 16 U.S.C. 1536(a)(2), the Service issued a Programmatic Biological Opinion, resulting from consultation on OSMRE”s implementation of Title V of SMCRA, as modified by the Stream Protection Rule. Additionally, OSMRE and the Service entered into a Memorandum of Understanding (MOU) to provide guidance on the appropriate procedures for OSMRE, State and Tribal RAs, and the Service to follow in connection with permitting decisions that may impact proposed, threatened, and endangered species and proposed and designated critical habitat.
It is the Service’s biological opinion that OSMRE’s implementation of Title V of SMCRA, as modified by the Stream Protection Rule, is not likely to jeopardize the continued existence of ESA-proposed and -listed species and is not likely to destroy or adversely modify proposed or designated critical habitat. The Service is able to make this conclusion because of the 2016 MOU and OSMRE’s adoption of the Stream Protection Rule and the assumption that all State or Tribal RAs will modify their regulatory programs to be no less effective than the Stream Protection Rule no later than 2020.
Memorandum of Understanding
In conjunction with the signing of the 2016 Biological Opinion, the Office of Surface Mining Reclamation and Enforcement (OSMRE) and the U.S. Fish and Wildlife Service (Service) signed a Memorandum of Understanding on December 16, 2016. The purpose of the MOU between OSMRE and the Service is to improve interagency coordination and cooperation under the Service’s programmatic Biological and Conference Opinion (referred to as the “2016 programmatic Biological Opinion”) to ensure that proposed, threatened, and endangered species and proposed and designated critical habitat are adequately protected for all surface coal mining and reclamation operations and coal exploration conducted under the Surface Mining Control and Reclamation Act of 1977 (SMCRA), including initial permit issuance, permit renewals, and significant permit revisions.
The MOU addresses implementation of the 2016 programmatic Biological Opinion as of the signature date of the 2016 programmatic Biological Opinion and the MOU, regardless of whether or not OSMRE has approved a State’s or Tribe’s program under the SPR. The incidental take statement accompanying the 1996 Biological Opinion will remain valid for all existing surface coal mining and reclamation permits that complied with the terms and conditions of the 1996 Biological Opinion to obtain incidental take coverage prior to the effective date of the SPR.
2015 Proposed Rule Text and Associated Documents Prior to Final EIS
Type Full text of the proposed rule, Federal Register 07/27/15 link SPR Extension of Comment Period 09/10/15 link Comments on the proposed rule 10/26/15 link Full text of the supporting Draft Environmental Impact Statement 07/27/15 Comments on the Draft EIS (Published 10/26/15) 10/26/15 link Text of the Regulatory Impact Analysis (RIA) without Appendix C 07/27/15 Text of the Regulatory Impact Analysis (RIA), Appendix C Parts 1 and 2 07/27/15 Text of the Regulatory Impact Analysis (RIA), Appendix C Parts 3 and 4 07/27/15 Text of the Regulatory Impact Analysis (RIA), Appendix C Parts 5 and 6 07/27/15 Comments on the RIA (Published 10/26/15) 10/26/15 link
News Releases, Reports, Testimony
Public Hearings: OSMRE held public hearings on the proposed rule and the DEIS at six locations throughout the nation