OSM officially terminates 2008 version of stream buffer rule

The U.S. Office of Surface Mining said in a notice to be published in the Dec. 22 Federal Register that it is amending its always controversial regulations concerning stream buffer zones, stream channel diversions, excess spoil, and coal mine waste to comply with an order issued by the U.S. District Court for the District of Columbia on Feb. 20, 2014.

That court ruling vacated the stream buffer zone rule, which liked by the coal industry, that OSM published in December 2008 in the last days of the George W. Bush Administration. The court remanded the matter to OSM for further proceedings consistent with the decision. The court decision stated that vacatur of the 2008 stream buffer zone rule resulted in reinstatement of the regulations in effect before the vacated rule took effect.

The court vacated the 2008 rule because it said that “OSM’s determination that the revisions to the stream protection rule encompassed by the 2008 Rule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion” and that, therefore, OSM’s failure to initiate consultation on the 2008 rule was a violation of section 7(a)(2) of the Endangered Species Act.

What OSM is doing with the Dec. 22 notice is officially reinstating the prior version of the buffer zone rule. OSM said it is doing this as a direct final rule, with no comment period, because: “In this case, we have determined that notice and opportunity for public comment are unnecessary because, in NPCA v. Jewell, the court has already vacated the 2008 rule and stated what rules replaced the vacated provisions.”

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.

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.