Bush-era mining rule struck down

A federal district judge has ruled that the administration of former President George W. Bush violated the Endangered Species Act when it weakened a mining regulation in a way that allowed streams and rivers in Appalachia to be filled with debris from mountaintop removal.

The court held Thursday that the Office of Surface Mining Reclamation and Enforcement, an agency of the U.S. Department of Interior, should have consulted with the U.S. Fish & Wildlife Service about the impact of the change to the regulation on endangered and threatened wildlife in Appalachia.

“Faced with clear evidence that habitats within stream buffer zones are home to threatened and endangered species and that mining operations affect the environment, water quality, and all living biota, OSM’s determination that the revisions to the stream protection rule encompassed by the 2008 [r][ule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion,” Judge Barbara Rothstein wrote.

Issued under the authority of the Surface Mining Control and Reclamation Act, the principal federal law affecting coal mining, the 2008 regulation replaced a prior regulation that had been in effect since 1983. Under the earlier Stream Buffer Zone Rule, mining companies could not obtain a waiver allowing the deposit of debris into streams or rivers unless the discharge would “not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream.”

The 2008 regulation eliminated that constraint on OSM’s discretion to grant a waiver, substituting for it language that allowed much more latitude to lower the water quality of Appalachian streams and rivers: “The permit application must demonstrate, and the regulatory authority must find, that avoiding disturbance of the stream is either not reasonably possible or not necessary to meet the fish and wildlife and hydrologic balance protection provisions of the regulatory program.”

The Bush-era regulation also exempted certain mining activities from water pollution limitations altogether, including the diversion of streams and the construction of excess spoil fills, if OSM concluded that “avoiding disturbance of the stream is not reasonably possible.”

The term “spoil fill” refers to the mound of soil, rock, and other debris removed from the mining area in order to open up access to the material sought.

The goal of mountaintop removal mining is the removal of coal.

Judge Rothstein rejected an argument by the National Mining Association that OSM could rely on a 1996 biological opinion by FWS that determined the agency’s regulations  would not be likely to harm species listed under the ESA.

She also refused to remand the 2008 regulation to OSM, which would have enabled it to remain in effect while consultation with FWS occurred, holding instead that the regulation must be vacated. That decision means that OSM will have to start its rulemaking process over again if the Obama administration determines that it wants to loosen the constraints imposed by the 1983 regulation.

The 2008 OSM regulation struck down Thursday was a “midnight rule,” one of many regulations proposed and finalized by the Bush administration during the weeks between President Barack Obama’s election and his inauguration on Jan. 20, 2009. It went into effect just eight days before Obama took office.

A study of the environmental impacts of mountaintop removal mining completed by the U.S. Environmental Protection Agency in 2005 concluded that the practice buried or damaged almost 2,000 miles of Appalachian streams and rivers since the mid-1970s.

The case is National Parks Conservation Association v. Jewell, No. 09-00115.

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