Stream Protection Rule

The Stream Protection Rule was regulation issued by the Office of Surface Mining Reclamation and Enforcement that went into effect on January 19, 2017.^[1] These regulations implement Title V of the 1977 Surface Mining Control and Reclamation Act (SMCRA), the focus of which were the conditions for issuing permits to begin a mining operation. The original regulations had been issued in 1979 and were updated in 1983, Litigation over mountaintop removal mining required changes to the regulations, which were issued in 2008. These regulations were in turn struck down by a judge after litigation by environmental groups. The new regulations, the Stream Protection Rule, were issued in January 2017.

They were a topic in the US 2016 elections, with republican candidates for federal office saying that they would strike the regulations down if they would be elected. The Rule was revoked by use of the Congressional Review Act in February 2017, leaving the status of regulations implementing the SMCRA unclear.

History

The Stream Protection Rule updated the regulations issued by the Office of Surface Mining Reclamation and Enforcement (OSMRE) to implement Title V of the 1977 Surface Mining Control and Reclamation Act (SMCRA), the focus of which were the conditions for issuing permits to begin a mining operation. The regulations had been issued in 1979, updated in 1983, and litigation over mountaintop removal mining required changes to the regulations, which were issued in 2008.^[2] Environmental groups challenged the new rules in court and in 2014 a federal court struck them down, and the Obama administration began working on new rules.^[2]:6

In July 2015 as part of the development of the new rules, OSMRE published a draft Environmental Impact Statement about the new rules.^[3] Pursuant to Executive Order 12898 issued by Bill Clinton, which required federal agencies to take environmental justice (EJ) concerns into consideration when taking regulatory and other actions, and pursuant to the EPA's own guidelines for implementing that order finalized in 1998,^[4] the impact statement had a section addressing EJ concerns.^{[3]:4-317-330} The EPA studied the demographics of 286 coal-producing counties and identified 44 that had significant minority or low-income populations; half of those were in Appalachia.^[3]:4-326 The statement predicted that the rules would probably lead to a decrease in coal production, which would lead to a loss of jobs and with respect to minority-owned coal producers (e.g. Native American tribes) this would be a negative socio-economic effect.^[3]:4-326 The Statement also offered predictions on the likely effects on public health and safety; biological resources, water resources, and air quality; topography and land use; and recreation in minority and low-income counties, and found that there were likely to be negligible to very beneficial effects in each of those aspects.^{[3]:4-328-329} The statement also addressed protections for cemeteries and sacred lands on tribal lands.^{[3]:4-329-430}

The revised rules, which became known as the Stream Protection Rule, were published on December 20, 2016 by the Office of Surface Mining Reclamation and Enforcement, of the United States Department of the Interior.^[5][6] and became effective on January 19, 2017.

Part of the work that led to the new rules was a collaboration with the United States Fish and Wildlife Service; the ESA requires federal agencies to consult with the Fish and Wildlife Service to ensure their actions do not jeopardize the continued existence of an endangered or threatened species, or adversely modify critical habitat.^[7] The Fish and Wildlife Service published its Programmatic Biological Opinion, and both agencies published a Memorandum of Understanding that described how OSMRE was implementing the findings of the Opinion, on the same day the new rules were published.^[8]

Provisions

Following the law it implemented, the Stream Protection Rule aimed to create "balance between environmental protection and the nation's need for coal as a source of energy."^[9] To achieve this, the rule included improvements in the protection of water supplies, water quality, streams, fish and other wildlife, and other environmental issues that are harmed by surface coal mining; furthermore, the rule provided mine operators with more regulations that would help avoid water pollution as well as water treatment costs.^[9] In addition to these guidelines, the rule also included eradicating water pollution outside of permit areas, requiring thorough data collection for mining operations, protection and restoration of streams, updated guidelines for protecting endangered species, and long-term treatment of unintentional water contamination.^[10] Expanding on permits, the rule also guarantees that science and technology are leveraged to analyze the potential harms of mining. It also ensured that lands that are harmed by mining operations can be restored to a condition comparable to its condition before the mining operation was introduced.^[9] During the restoration process companies would be required to plant native trees and vegetation.^[10] 30% of the rule's provisions were revisions and organizational changes that aimed to help "improve consistency, clarity, accuracy, and ease of use."^[9]

The Stream Protection Rule covered waterways near surface coal mining operations in order to avoid pollution of rivers and streams, and also called for the restoration of streams that had been damaged by dangerous, heavy metals like mercury and arsenic.^[11] The Rule would have protected an estimated 6,000 miles of streams over the next two decades,^[12] by establishing that coal companies were in fact, not allowed to damage the "hydrologic balance" outside their permit area and enforcing a 100-foot buffer around streams to preserve native species.^[11] The Interior Department had also said that the rule would protect 52,000 acres of forests as a default of keeping coal mining debris away from nearby waters.^[13]

Challenges and overturning

President-elect Trump's pro-coal mining stances promoted during a Republican campaign rally in Louisiana.

Republicans, including Donald Trump, had made reducing regulation, and especially environmental regulation, a key message in their campaigns in 2016, and Paul Ryan had issued a plan called "Better Way" that laid out methods to reduce regulation, including use of the Congressional Review Act, which allows Congress and the President to force federal agencies to retract regulations that they judge go beyond what the law requires.^[14][15] Senate Majority Leader Mitch McConnell had also claimed that the rule would decrease the number of coal-related jobs.^[16]

When the Stream Protection Rule was published, it was immediately challenged in court by the attorneys generals of several states as well as by coal mining companies.^[13]

When the new Congress met in 2017, controlled by Republicans in both houses, a coalition made up of 124 organizations, including Greenpeace, the National Women's Law Center, the Center for Biological Diversity and the American Federation of Labor and Congress of Industrial Organizations, sent an open letter urging Congress not to overturn the Rule.^[5]

On January 11, 2017, a report for members and committees of Congress was published by the Congressional Research Service, entitled "The Office of Surface Mining's Stream Protection Rule: An Overview." The report described the history of law, regulation, and litigation that had led to the new rules, outlined the costs of the new rules to the coal mining industry, and provided an overall cost-benefit analysis of the rules.^[2]

In early February 2017 both houses of Congress voted to apply the review law to the Stream Protection Rule.^[14] According to the Center for American Progress, the 27 representatives that sponsored or co-sponsored the review of the rules received nearly $500 million from mining interests in 2016.^[17] Trump signed H.J. Res 38 on February 16, 2017, overturning the Stream Protection Rule.^[18][19]

When he signed the congressional act, Trump predicted that striking down the rule would save thousands of U.S. mining-related jobs.^{[18][20][21][16]} Republican Bill Johnson, the U.S. Representative for Ohio’s 6th congressional district and sponsor for the disapproval measure, stated, “Make no mistake about it, this Obama administration rule is not designed to protect streams. Instead, it was an effort to regulate the coal mining industry right out of business."^[22]

Effects of revocation

Subsequent to the revocation of the Stream Protection Rule by the Trump administration, many scientists, when interviewed, said that it would have had an insignificant impact on the activities of coal companies.^[23]

Moreover, the US energy industry had generally reduced its use of coal in favor of cheaper natural gas and to a lesser extent renewables, and analysts said that even if the Stream Protection Rule had made coal more expensive for them, it would not have had much of an effect on the industry; its revocation meant little to them as well.^[24]

The revocation of these regulations left unclear what regulation would be used to implement the Surface Mining Control and Reclamation Act.^[25]

See also

• Clean Water Act
• Clean Water Rule
• Plant Protection Act
• Waters of the United States
• Drinking water supply and sanitation in the United States

References