Policy Update Feb 1, 2016

Position on the Stream Protection Rule

NPCA, along with the Southern Environmental Law Center, submitted written comments to the Senate Committee on Environment and Public Works ahead of a hearing on February 3.

Our organizations have a strong interest in the rulemaking that is the subject of the hearing “The Stream Protection Rule: Impacts on the Environment and Implications for Endangered Species Act and Clean Water Act Implementation,” as the rule proposes much-needed revisions to regulations for coal mining operations under the Surface Mining Control and Reclamation Act (SMCRA). The final rule will significantly impact public health, rivers and streams, national parks, and communities in the regions in which we work.

Mountaintop removal mining in Appalachia and surface coal mining have devastated both the thriving natural ecosystems of the Appalachian Mountains as well as entire communities. Mountaintop removal mining generates some of the most damaging, large-scale environmental impacts of any industrial activity in the country. It is responsible for the destruction of over 500 mountains and approximately 2,000 miles of stream channels across Central Appalachia. The current regulations have been inadequate to prevent this ongoing, massive devastation. They must be reformed.

Our organizations support several components of OSM’s proposed Stream Protection Rule, including improvements in baseline data collection, enhanced monitoring and bonding requirements, and restoration of stream functions, among others. And while our groups support the rulemaking moving forward, there are several other important areas where the proposed regulations are too weak and should be strengthened. We oppose the proposed elimination of the existing stream buffer zone rule. In addition, while we are in general support of including a definition for “material damage to the hydrologic balance,” the proposed rule falls short in certain respects. We support the requirement that mining operators must comply with water quality standards and believe that the language of the rule should be clarified to avoid any ambiguity.

The proposed rule contains some important elements that are an improvement from current regulations. These include, among others, the following:

Enhanced Monitoring and Baseline Conditions: We support OSM’s proposal to require more extensive monitoring of water quality and stream flow in areas impacted by mining, as well as improved biological monitoring. This information is critical to assessing adverse impacts from mining. This includes monitoring for selenium, conductivity and other pollutants, as well as the presence of important aquatic species.

Improved Bonding Requirements: We support OSM’s proposal to strengthen bonding provisions to require financial assurances for long-term treatment of pollution discharges.

Restoration of Stream Functions: We support in principle OSM’s proposal to require mining operators to restore both the hydrological form and ecological functions of streams that are impacted by mining. This requirement is consistent with the federal Clean Water Act. However, the available evidence indicates that the ecological functions of streams that have been damaged or destroyed by valley fills or mined-through cannot be restored or recreated. The proposed rule should prohibit or severely limit stream destruction in the absence of clear proof of the success of any remedial measure.

Conversely, we believe the proposed rule must be changed or clarified in certain key respects.

OSM Should Retain the Stream Buffer Zone Rule: We oppose OSM’s proposal to eliminate the 1983 stream buffer zone rule that prohibits mining within 100 feet on either side of perennial or intermittent streams. Retention, and enforcement, of the rule is critical to halt the massive destruction of Appalachian streams and aquatic life from valley fills.

OSM Should Strengthen the Definition of Material Damage to the Hydrologic Balance: While we support the important concept of defining “material damage” to the hydrologic balance, that definition should be modified to clarify that its language is consistent with the Clean Water Act, that it does not authorize violations of water quality standards, and that it supplements rather than replaces the statutory requirement to avoid acid or other toxic drainage at the minesite and in associated offsite areas.

Additionally, there are other areas of the rule we support and others in which the rule should be strengthened. Our organizations have joined with other colleague groups in submitting detailed comments to the docket (OSM-2010-0018).

This rulemaking represents a major shift from the current regulatory program, which has been inadequate for too long. Our organizations are overall supportive of OSMs efforts to improve and modernize the regulations that govern mountaintop removal mining. The proposed rule contains important improvements to the current regulatory system, but OSM should go further to protect communities and the environment from the ill effects of mountaintop mining.