Federal court tosses 2008 stream buffer rule back to OSM

A federal court on Feb. 20 vacated the 2008 Stream Buffer Zone Rule, put out in the last days of the George W. Bush Administration, and remanded the matter to the U.S. Office of Surface Mining (OSM) for further proceedings consistent with the decision.

The rule, challenged by environmental groups, including the National Parks Conservation Assn., is considered friendly to the coal industry need to place rock and soil from mine sites within 100-foot buffer zones around streams. The Obama Administration has said for years it wants to issue a more stringent replacement rule, but that rule has not yet been issued. Republicans in Congress, particularly in the GOP-controlled House, have been vocal opponents of the Obama rewrite effort.

In this case, dating back to 2009 and being handled before the U.S. District Court for the District of Columbia, the plaintiff, the National Parks Conservation Association (NPCA), challenged the so-called “Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams.” The 2008 Rule revised a stream protection rule that had been in effect since 1983. The U.S. Environmental Protection Agency concurred in OSM’s promulgation of the 2008 Rule.

NPCA in part argued that OSM violated section 7(a)(2) of the Endangered Species Act (ESA) by not consulting with the U.S. Fish and Wildlife Service prior to promulgating the 2008 Rule. NPCA also contends that it was arbitrary and capricious for OSM to rely on a 1996 Biological Opinion to avoid its consultation duties and that OSM violated its ESA section 7 duties by not reinitiating with the Service. NPCA asks that the court vacate the 2008 Rule and the 1996 Biological Opinion and remand the matter to OSM.

The federal defendants admitted that it was legal error for OSM not to initiate consultation on the 2008 Rule and they requested that the court vacate the 2008 Rule on that basis. The federal defendants argued that the plaintiff’s claim regarding OSM’s reliance on the 1996 Biological Opinion should be dismissed as moot and that the plaintiff’s remaining challenges to the 1996 Biological Opinion should be denied because the court lacks jurisdiction to consider them. The National Mining Association (NMA) argued that OSM was not required to consult on the 2008 Rule and that even if consultation was required, the rule should not be vacated.

The judge said in the Feb. 20 ruling: “The court is convinced that OSM’s failure to initiate ESA section 7 consultation is a serious deficiency and not merely ‘a strictly procedural defect,’ as NMA argues.”

The judge noted that both the federal defendants and NPCA have shown that vacating the 2008 Rule will have limited disruptive consequences. Vacatur would result in the reinstatement of the 1984 Rule, which governed surface mining activities for over 25 years and with which the regulated coal mining community is familiar.

This ruling “is a significant victory for efforts to protect the beautiful and ecologically diverse waterways of Appalachia,” said Deborah Murray, senior attorney at the Southern Environmental Law Center, in a Feb. 21 statement. The center legally represents NPCA in this case. “The original rule, if properly enforced, is critical to the protection of streams in Appalachia from the impacts of mountaintop mining,” said Murray about the 1984 Rule that is now back in force.

“Now that this destructive rule is history, we are hopeful that we can begin a more meaningful and science-based examination of the devastating effects of mountaintop removal and stream destruction in the Appalachian mountains,” said Don Barger, southeast regional director of NPCA.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.