The Office of Surface Mining’s Proposed
Stream Protection Rule: An Overview
Claudia Copeland
Specialist in Resources and Environmental Policy
September 10, 2015
Congressional Research Service
7-5700
www.crs.gov
R44150

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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

Summary
On July 16, 2015, the Office of Surface Mining Reclamation and Enforcement (OSM) of the
Department of the Interior announced a Stream Protection Rule that would revise regulations
implementing Title V of the Surface Mining Control and Reclamation Act (SMCRA). The
proposal is intended to avoid or minimize adverse impacts of coal mining on surface water,
groundwater, fish, wildlife, and other natural resources by limiting the mining of coal in or
through streams, placement of waste in streams and limiting the generation of mining waste.
Some of the regulations that would be replaced by the proposed rule were promulgated more than
30 years ago. OSM asserts that updated rules, which have been under development since 2009,
are needed to reflect current science, technology, and modern mining practices.
The proposal retains the core of existing rules in many respects, including basic elements of the
existing stream buffer zone rules. The buffer zone rules provide that no land within 100 feet of a
perennial or intermittent stream shall be disturbed by surface mining activities, including the
dumping of mining waste, unless the regulatory authority grants a variance that specifically
authorizes surface mining activities closer to or through such a stream. The 2015 proposed rule
also includes elements to strengthen the current rules, such as new requirements for baseline data
collection to determine the impacts of proposed mining operations, more specificity on
reclamation plans, and more specificity on measures to protect fish and wildlife.
OSM estimates that the coal industry would incur annual compliance costs of $52 million under
the proposal. These costs would be above baseline costs that would be incurred in the absence of
the rule. Costs of the proposed rule are expected to consist of $45 million annually for surface
coal mining operations and $7 million annually for underground mining operations. Nearly 46%
of the expected compliance costs reflect new regulatory requirements on coal mining operations
in Appalachian states. Of the increased costs in those states, OSM estimates that 72% are for costs
to surface mining operations there—or, 33% of the total cost of the rule. Other regions also are
expected to experience operational costs, but impacts are anticipated to vary across mine type
(e.g., surface or underground) and region. Because of data limitations, OSM cannot quantify
benefits of the proposal, but qualitatively, the agency says that the rule is expected to reduce the
adverse impacts of coal mining on water resources and aquatic habitat.
To stakeholders, OSM’s proposal raises a number of questions, including whether new
regulations are needed; if so, whether benefits of the proposed rule justify the projected
compliance and associated costs; and whether an alternative regulatory approach with greater
benefits but also increased costs would better achieve SMCRA’s purposes.
Concern that OSM’s efforts to develop a new rule would be costly and burdensome to the coal
industry has led to strong congressional interest for some time. Oversight hearings have been
held, and legislation has been introduced to halt or re-direct OSM’s initiatives, including H.R.
1644, S. 1458, and a provision of H.R. 2822 in the 114th Congress. Initial reactions to the
proposed rule by stakeholder groups have varied. Mining industry groups have been very critical
of the costs of the proposal, while environmental groups that have generally supported
strengthening SMCRA regulations contend that the rule should be stronger to provide more
protection to streams.
The proposed rule and supporting documents are open for public comment until October 26. The
agency is holding public hearings on the proposal in several cities in September. A final Stream
Protection Rule, when promulgated, will take effect in states with federal programs (currently
Tennessee and Washington) 60 days after publication in the Federal Register. In primacy states
(those with approved regulatory programs), implementation may take up to 42 months.
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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

Contents
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 2
The Stream Buffer Zone Rules and Revisions .......................................................................... 4
Obama Administration Activities .............................................................................................. 5
The 2009 MOU on Appalachian Surface Coal Mining ....................................................... 6
Major Features of the 2015 Proposed Stream Protection Rule ....................................................... 7
Baseline Data Collection ........................................................................................................... 8
Monitoring During Mining and Reclamation ............................................................................ 8
Definition of “Material Damage to the Hydrologic Balance Outside the Permit Area” ........... 8
Mining Activities In or Near Streams (Including Excess Spoil Fills and Coal Mine
Waste Disposal Facilities) ...................................................................................................... 9
Mining Through Streams ........................................................................................................ 10
Approximate Original Contour (AOC) and AOC Variances ................................................... 10
Revegetation, Reforestation, and Topsoil Management .......................................................... 12
Fish and Wildlife Protection and Enhancement ...................................................................... 12
Implementation Schedule ........................................................................................................ 13
Impacts of the Proposed Rule ........................................................................................................ 13
Costs ........................................................................................................................................ 13
Environmental and Human Health Benefits ............................................................................ 15
Uncertainties in the Analyses .................................................................................................. 16
Reactions to the Proposed Rule, Congressional Interest, and Next Steps ..................................... 16
Congressional Interest ....................................................................................................... 17
Next Steps ......................................................................................................................... 18

Contacts
Author Contact Information .......................................................................................................... 18

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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

Introduction
On July 16, 2015, the Office of Surface Mining Reclamation and Enforcement (OSM) of the
Department of the Interior announced a Stream Protection Rule. The proposal would revise
regulations that implement Title V of the Surface Mining Control and Reclamation Act
(SMCRA), the law that governs the permitting of coal mining operations. 1 Portions of the current
rules were promulgated more than 30 years ago. OSM asserts that updated rules, which have been
under development for more than five years, are needed to reflect current science, technology,
and modern mining practices. The proposed revisions are based on several needs for federal
regulatory action identified by OSM.2
 A need for regulatory changes to improve implementation of SMCRA provisions
related to stream protection.
 A need for adequate data to evaluate the impacts of coal mining operations and
ensure implementation of SMCRA’s requirements.
 A need for adequate objective standards to effectively evaluate compliance and
limit or prevent adverse impacts, as appropriate.
 A need to apply current information, technology, and methods to incorporate
advances in scientific knowledge that have occurred since the SMCRA
regulations were adopted.
To stakeholders, the proposed rule raises a number of issues, including whether new federal rules
are needed and, in particular, whether OSM’s proposed approach will improve and strengthen
implementation of the law. The rule has been controversial since OSM began developing it in
2009. Critics in the coal mining industry and some Members of Congress have argued that
revisions of current rules are not needed and will impose costs that will greatly affect the viability
of the coal mining industry in the United States. The new rules are part of a “war on coal” by the
Administration, some say.3 At the same time, some environmental advocacy groups that have
generally supported OSM’s efforts to strengthen regulation of coal mining operations now
contend that the proposed rule is not strong enough. Thus, a related issue is whether an alternative
regulatory approach with greater benefits but also increased costs would better achieve SMCRA’s
purposes.
This report is intended to assist consideration of issues raised by the proposed rule. The report
briefly describes SMCRA and the context for the 2015 proposed rule. It discusses major elements
of the proposal and OSM’s estimates of its impacts (costs and benefits). Finally, the report
describes initial reactions to the proposed rule by stakeholders and legislation and oversight in
Congress, and it identifies next steps in the regulatory process.

1 30 U.S.C. §§1201—1328.
2 U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, Draft Stream Protection
Rule Environmental Impact Statement, July 2015, pp. 1-11—1-16. Hereinafter, Draft EIS. http://www.osmre.gov/
programs/rcm/streamprotectionrule.shtm.
3 For example, Senate Majority Leader McConnell has been quoted as saying, “I’m going to keep vigorously fighting
against the Obama administration’s continued war on coal jobs.” The Hill, June 3, 2014, http://thehill.com/blogs/floor-
action/senate/208031-mcconnell-vows-to-fight-obamas-war-on-coal.
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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

Background
Congress enacted SMCRA in 1977 (P.L. 95-87). The statute established OSM within the
Department of the Interior and charged the Secretary of the Interior with the responsibility to
carry out the requirements in the act both directly and by promulgating regulations.
Section 102 of the statute specifies a number of purposes, beginning with to “establish a
nationwide program to protect society and the environment from the adverse effects of surface
coal mining operations.”4 Another stated purpose acknowledges that the statute reflects a need to
“strike a balance between protection of the environment and agricultural productivity and the
Nation’s need for coal as an essential source of energy.”5 Regarding the statute as a whole, it has
been observed that “[e]xcept for the laws governing the handling and disposal of hazardous
waste, the complexity of the SMCRA program is unsurpassed in environmental law.”6
Congress identified stream protection as a fundamental purpose of SMCRA, as reflected in one of
the congressional findings in the statute.7
[M]any surface mining operations result in disturbances of surface areas that burden and
adversely affect commerce and the public welfare by destroying or diminishing the utility
of land for commercial, industrial, residential, recreational, agricultural, and forestry
purposes, by causing erosion and landslides, by contributing to floods, by polluting the
water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging
the property of citizens, by creating hazards dangerous to life and property, by degrading
the quality of life in local communities, and by counteracting governmental programs and
efforts to conserve soil, water, and other natural resources;
Section 515 of the act details minimum performance standards for environmental
protection and public health and safety, which apply to surface coal mining and
reclamation operations, surface effects of underground coal mining operations, and
surface coal mining in special areas or in special circumstances (such as mountaintop
removal mining8 and steep slope mining9). It generally requires that land be restored after
mining to its approximate original contour (AOC), that it be revegetated, that acid mine
drainage be prevented, that subsided lands be restored, that erosion be controlled, and that
certain other measures be taken to reclaim affected lands and waters.
Section 506 of SMCRA requires a mining operator to obtain a permit from the regulatory
authority prior to the commencement of mining operations.10 The scope of the permit

4 30 U.S.C. §1202(a).
5 30 U.S.C. §1202(f).
6 James M. McElfish, Jr. and Ann E. Beier, Environmental Regulation of Coal Mining: SMCRA’s Second Decade
(Environmental Law Institute, 1990), p. 5. Hereinafter, McElfish.
7 30 U.S.C. §1201(c).
8 SMCRA Section 515(c)(2) defines mountaintop removal mining as “surface mining of coal where the mining
operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill ...
by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining”
(30 U.S.C. §1265(c)(2)). Policy issues concerning the practice of mountaintop removal mining are discussed in CRS
Report RS21421, Mountaintop Removal Mining: Background on Current Controversies, by Claudia Copeland.
9 SMCRA Section 515(d)(4) defines steep slope mining as “any slope above twenty degrees or such lesser slope as may
be defined by the regulatory authority after consideration of soil, climate, and other characteristics of a region or State”
(30 U.S.C. §1265(d)(4)).
10 30 U.S.C. §1256.
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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

encompasses the life-cycle of the mining operations from the siting of the mining area through
the extraction of coal and related activities, the management and disposal of mining wastes, and
the reclamation of affected lands and waters once extraction is complete.11 Commencing mining
operations without an approved permit issued by the regulatory authority is unlawful under
SMCRA, and is subject to enforcement actions. In applying for a permit, the applicant must
submit its proposal for mining operations to the regulatory authority and specify the measures that
would be taken to ensure compliance with the requirements and criteria of SMCRA and the
implementing regulations. Prior to the issuance of the permit by the regulatory authority, Section
509 of SMCRA also requires the applicant to obtain a performance bond to demonstrate its
financial capability to fulfill permit obligations through reclamation after mining ceases.12
Section 503 of SMCRA provides that any state may obtain primary jurisdiction over regulating
surface coal mining and reclamation operations on non-federal and non-Indian lands through
submission of a program for approval by OSM.13 Once a state’s program is approved, the state
has the primary responsibility for achieving the purposes of the act. A primacy state is the sole
issuer of permits, and OSM maintains a limited role in a state with an approved program. It
evaluates each state’s performance in carrying out its approved program, and it provides backup
enforcement against violating operators in the event of default by the state.14 States are required
to submit amendments to their programs (e.g., changes to state statutes or regulations) to OSM for
determining consistency with the federal program.
According to OSM, coal mining is currently occurring in 26 states. To date, all but two of those
states (Tennessee and Washington) have achieved program primacy; OSM directly regulates
surface coal mining and reclamation activities in those two states. At present, no Tribes have
primacy.15
The permit is the heart of the SMCRA program, enabling regulatory authorities to determine
whether mining may occur and to establish the terms for mining. The permit requirement is
designed to protect the public health, safety, and the environment by conditioning permit issuance
on the applicant’s demonstration that mining and reclamation can be successfully accomplished.
The permit requires the mine operator to plan the operation in detail to identify and avoid adverse
environmental impacts and to facilitate site reclamation after mining is complete. Some have
noted that it also gives the regulatory authority significant enforcement powers over the mining
operation, including a basis for evaluating the feasibility of reclamation and risk, if any, to water
supplies, land surfaces, public facilities, and other resources.16 Permits generally are issued for
five-year terms. A valid permit carries the right of successive renewal, unless the regulatory
authority finds that present mining and reclamation operations are not in compliance with

11 Specific aspects of a mining operation also may be subject to various other federal, state, or local permitting
requirements, in addition to a SMCRA permit covering the life-cycle operations more broadly.
12 30 U.S.C. §1259. For additional discussion, see U.S. Government Accountability Office, Surface Coal Mining,
Financial Assurances for, and Long-Term Oversight of, Mines with Valley Fills in Four Appalachian States, GAO-10-
206, January 2010.
13 30 U.S.C. §1253.
14 30 U.S.C. §§1267, 1271.
15 U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “OSMRE Regulating Coal
Mines,” http://www.osmre.gov/programs/RCM.shtm. OSM also is the primary permitting authority for coal mining on
federal public lands, in coordination with the Bureau of Land Management. Fourteen primacy states participate in
permitting on federal public lands under cooperative agreements with OSM.
16 See McElfish, Chapter 2.
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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

SMCRA and its regulations, or for other reasons, such as the operator has not provided adequate
performance bonding.17
The Stream Buffer Zone Rules and Revisions
In 1979 OSM promulgated permanent program performance standards to implement SMCRA,
including stream buffer zone rules, for surface and underground mining operations. The stream
buffer zone rules provided that no surface area within 100 feet of a perennial stream (a stream
having flowing water year-round during a typical year) or a non-perennial stream with a
biological community may be disturbed by surface operations or facilities unless the regulatory
authority finds that the original stream channel would be restored and that, during and after
mining, the activities would not adversely affect the quantity and quality of the stream segment
within 100 feet of those activities. Stream-channel diversions done to mine coal beneath a
streambed were excluded from these rules.18
In 1983, OSM revised the stream buffer zone and related rules to protect perennial streams and
intermittent streams (streams that have flowing water during certain times of the year, when
groundwater provides stream flow) from disturbance by coal mining activities. In order to protect
streams from sedimentation and channel disturbance, the 1983 buffer zone rules provided that no
land within 100 feet of a perennial or intermittent stream shall be disturbed by surface mining
activities, including the dumping of mining waste, unless the regulatory authority grants a
variance that specifically authorizes surface mining activities closer to or through such a stream.
To grant such variance, the regulatory authority must find that the proposed mining activity will
not cause or contribute to a violation of applicable water quality standards19 and will not
adversely affect water quantity and quality or other environmental resources of the stream. The
1983 rules deleted the requirements in the 1979 rules that the original stream channel be restored
and replaced the biological community criterion for determining which non-perennial streams
must be protected with a requirement for protecting all intermittent streams.
In partial settlement of litigation over coal mining practices in West Virginia, OSM, the Army
Corps of Engineers, and the Environmental Protection Agency (EPA) developed a draft
Programmatic Environmental Impact Statement (PEIS) on the effects of mountaintop removal
mining in 2003. The settlement called for OSM to make changes to its stream buffer zone rules to
improve consistency with the Clean Water Act. OSM proposed changes to the rules in 2004, but it
subsequently decided to prepare a new PEIS and to draft revised rules. Both the PEIS and draft
rules were released in 2007.
OSM issued final revised buffer zone rules in December 2008.20 As described by OSM, the final
rules required that surface coal mining operations be designed to minimize the amount of spoil
placed outside the mined-out area, thus minimizing the amount of land disturbed. The rules also

17 30 CFR §774.15.
18 Draft EIS, p. 1-4.
19 Pursuant to the Clean Water Act, states adopt water quality standards for waters within their jurisdiction. The
standards consist of designated uses (e.g., drinking water supply or recreation) and water quality criteria necessary to
attain and maintain the designated uses. Water quality standards, together with technology-based performance
standards, serve as the basis for permit limits that are established for sources that discharge pollutants into waterbodies.
Coal mining operations are likely to be subject to one or more Clean Water Act permit requirements; see CRS Report
RS21421, Mountaintop Removal Mining: Background on Current Controversies, by Claudia Copeland.
20 Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Excess Spoil, Coal Mine
Waste, and Buffers for Perennial and Intermittent Streams; Final Rule,” 73 Federal Register 75814-75885, December
12, 2008, p. 75875. Hereinafter, 2008 Rule.
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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

required that, to the extent possible, surface coal mining and reclamation operations be designed
to avoid disturbance of perennial or intermittent streams and the surface of lands within 100 feet
of those streams. If avoidance is not reasonably possible, the rules required that the permit
applicant develop and analyze a range of reasonably possible alternatives; the regulatory authority
would select the one that would have the least overall adverse impact on fish, wildlife, and related
environmental values. According to OSM, the final rules did not mandate avoiding placement of
coal mine waste21 in or within 100 feet of perennial or intermittent streams in all cases, because
“there is sometimes no viable alternative to the construction of coal mine waste disposal facilities
in perennial or intermittent streams and their buffer zones, in which case avoidance is not
reasonably possible.”22 Restoration of stream ecological functions would not be required.
The 2008 revised rules eliminated the provision in the 1983 stream buffer zone rules that had
required a finding that the proposed activity would not cause or contribute to a violation of water
quality standards. In doing so, OSM said that the previous language more closely resembled the
Clean Water Act than the underlying provisions of SMCRA. Because the SMCRA rules would
not substitute for or supersede the Clean Water Act, mine operators still would have to comply
with the requirements of that law, OSM said.
Both industry and environmental groups said that the final rules did little to change the existing
practice of disposing excess spoil into valleys and streams.23 In fact, OSM stated that a key
purpose of the 2008 rules was to reduce confusion about the 1983 rules and to conform the
regulations to historic practice of federal and state authorities. Environmental groups said that the
final rules would actually reduce environmental protection for streams by making it easier for
coal mine operators to obtain exemptions from the stream buffer zone requirement, thus
increasing destructive mining activities in and around streams. Environmental groups challenged
the 2008 rules in federal court.
Obama Administration Activities
The Obama Administration has broadly focused attention on the environmental impacts of coal
mining operations through a number of regulatory and administrative initiatives. In 2009, the
Administration requested that the federal court hearing the environmentalists’ challenge to the
2008 stream buffer zone rules vacate the rules and remand them to OSM. The Administration was
seeking to return immediately to the more stringent 1983 rules until replacement rules could be
adopted. The Administration argued that the 2008 rules do not adequately protect water quality
and stream habitat. The court rejected the Administration’s request, leaving the 2008 rules in
place.24 However, litigation over the rules continued. In February 2014, the same federal court
ruled that the 2008 rules had been issued without necessary consultation with federal wildlife
agencies (under the Endangered Species Act).25 The court vacated the 2008 rules and reinstated
the rules that had been in effect previously (the 1983 rules). In December 2014, OSM formally

21 “Coal mine waste” refers to earth materials, which are combustible, physically unstable, or acid-forming or toxic-
forming that are wasted or otherwise separated from the coal product. 30 C.F.R. 701.5
22 2008 Rule, p. 75833.
23 “Excess spoil” refers to coal mine waste material that is generated during mining operations, such as rock that is
removed to get at coal between layers of rock and dirt and that, after being disturbed, is too large in volume to be put
back into the area from which it was originally taken. Valley fills are composed of excess spoil that is disposed of by
placing it in a valley. Because many valleys in mountainous coal regions contain streams, valley fills are generally
placed in streams or streambeds. See 30 C.F.R. 701.5.
24 Nat’l Parks Conservation Ass’n v. Salazar, 660 F. Supp. 2d 3 (D.D.C. 2009).
25 Nat’l Parks Conservation Ass’n v. Jewell, D.D.C., No. 1:09-cv-00115, February 20, 2014.
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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

withdrew the 2008 rules.26 Withdrawal of the rules was expected to have little impact, because
most states had not implemented them due to the litigation. Further, as discussed next, in the
interim, OSM had begun efforts to develop new rules.
The 2009 MOU on Appalachian Surface Coal Mining
In June 2009, officials of EPA, the Army Corps of Engineers, and the Department of the Interior
signed a Memorandum of Understanding (MOU) implementing an interagency plan intended to
reduce the harmful environmental impacts of surface coal mining in Appalachian states. The plan
included a series of near-term and longer-term administrative actions.27
One of the actions addressed in the MOU was revision of the 2008 stream buffer zone rules. In
November 2009, OSM identified a broad set of regulatory options that it was considering for
revisions to the 2008 rules, ranging from formally reinstating the 1983 rules with small
conforming changes, to requiring stricter buffer zone requirements for mountaintop removal
mining operations on steep slopes.28 OSM officials subsequently began working on a new rule
and an accompanying draft Environmental Impact Statement (EIS), which would apply
nationwide, not just in Appalachia. OSM’s efforts to revise the rule were criticized, based on
concerns about potential economic impacts of the rule and the quality of work on its EIS.
However, OSM officials and environmental advocacy groups contended that a new rule was
needed to protect waterways from surface mining operations.
OSM missed several self-imposed dates for releasing draft revised rules and an EIS, but
eventually announced both on July 16, 2015. As indicated since 2009, the proposal—now called
the Stream Protection Rule—would apply to coal mining activities nationwide. It is broader in
scope than the existing stream buffer zone rules, because it deals with the whole mine permit area
and outside the permit area, not just the stream buffer zone. A Notice of the Draft EIS was
published in the Federal Register on July 17.29 The proposed rule was published in the Federal
Register on July 27,30 as was a Notice of Availability of a draft Regulatory Impact Analysis (RIA)
for the proposed rule.31 In response to requests for more time to review and comment on the
documents, on September 10, OSM extended the original 60-day comment period until October
26, 2015, allowing more than 100 days in total for comments.32

26 Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Excess Spoil, Coal Mine
Waste, Diversions, and Buffer Zones for Perennial and Intermittent Streams,” 79 Federal Register 76227-76233,
December 22, 2014.
27 For additional information on these Administration actions, see http://water.epa.gov/lawsregs/guidance/wetlands/
mining.cfm.
28 Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Stream Buffer Zone and
Related Rules,” 74 Federal Register 62664-62668, November 30, 2009.
29 Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Stream Protection Rule; Draft
Environmental Impact Statement,” 80 Federal Register 42535-42536, July 17, 2015.
30 Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Stream Protection Rule:
Proposed Rule,” 80 Federal Register 44436-44698, July 27, 2015.
31 Department of the Interior, Office of Surface Mining and Reclamation Enforcement, “Notice of Availability; Draft
Regulatory Impact Analysis,” 80 Federal Register 44700, July 27, 2015.
32 Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Notice, extension of comment
period,” 80 Federal Register 54590-54951, September 10, 2015.
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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

Major Features of the 2015 Proposed Stream
Protection Rule
The 2015 proposed rule is long—262 pages in the Federal Register, consisting of 150 pages of
explanatory Preamble and 112 pages of regulatory text—and complex. This section of this report
describes major features of the proposal, compared with current regulations in 30 C.F.R. Chapter
VII, and draws in part from descriptions in the Draft EIS. In addition to proposing new stream
protection regulatory requirements, the rule would revise and reorganize much of the existing
SMCRA implementing rules in the Code of Federal Regulations for clarity purposes, such as
making “plain English” revisions to the text.
In the Draft EIS, OSM describes its position on the need for regulatory improvements: “Despite
the enactment of SMCRA and the promulgation of federal regulations implementing the statute,
surface coal mining operations continued to have negative effects on streams, fish, and
wildlife.”33 Documented problems cited in literature surveys and studies, as well as direct
observations of impacts of coal mining operations, prompted OSM to consider a different
approach to implementing the provisions of the statute.34 OSM concluded that evidence indicated
that existing regulations were inadequate to meet SMCRA’s mandate to “establish a nationwide
program to protect society and the environment from the adverse effects of surface coal mining
operations.”35
To develop the proposed rule, OSM considered nine regulatory alternatives, including retaining
current rules intact (the No Action Alternative), reinstating the now-vacated 2008 stream buffer
zone rules, and seven other options with various combinations of regulatory changes intended to
be more environmentally protective than current rules.36 The preferred alternative (i.e., the
proposed rule) retains the basic elements of the 1983 stream buffer zone rules and many other
portions of the current rules. The preferred alternative is not the most environmentally stringent
of all of the options evaluated by OSM. However, it includes elements from several of the other
alternatives considered by OSM that would be more stringent than current rules, such as new
requirements for baseline data collection to determine the impacts of proposed mining operations,
more specificity on reclamation plans, and more specificity on measures to protect fish and
wildlife from adverse impacts of mining.37

33 Draft EIS, p. 1-11.
34 Ibid.
35 30 U.S.C. §1202(a).
36 Details of each of the nine regulatory options are discussed in the draft Regulatory Impact Analysis for the proposed
rule. Industrial Economics, Inc., Draft Regulatory Impact Analysis of the Stream Protection Rule, prepared for the U.S.
Department of the Interior, Office of Surface Mining Reclamation and Enforcement, July 2015. Hereinafter, Draft RIA.
http://www.osmre.gov/programs/rcm/streamprotectionrule.shtm. The regulatory alternatives also are discussed in
Chapter Two of the Draft EIS.
37 In evaluating the nine regulatory alternatives, the No Action Alternative provides the baseline for considering
changes to existing rules under the other options, but there is no indication that OSM considered this alternative of
retaining existing rules without change. Also, OSM rejected the option of reinstating the 2008 stream buffer zone rules,
as the Administration’s position since 2009 has been that those rules do not sufficiently protect water quality. In the
Draft RIA, OSM says that reinstating the 2008 rules would not differ significantly from the No Action Alternative,
because current Clean Water Act requirements and policies and state policies under SMCRA “have effectively
achieved implementation of this Alternative in Central Appalachia, which is the region in which the 2008 Stream
Buffer Zone rule would have its greatest impact if it had remained in effect.” Draft RIA, p. ES-31.
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The Office of Surface Mining’s Proposed Stream Protection Rule: An Overview

Baseline Data Collection
Under current rules, the applicant for a SMCRA permit is required to submit certain baseline
information: data for existing wells, springs, and other groundwater resources within or adjacent
to the proposed permit area; information on surface water quality and quantity sufficient to
demonstrate seasonal variation and water usage; and a description of the geology of the proposed
permit area and the adjacent area.
The proposed rule would establish minimum sample collection intervals and would expand the
suite of parameters for which permittees must analyze all water samples. Baseline water-quality
data are required on all intermittent and perennial streams and a representative number of
ephemeral streams (an ephemeral stream typically has flowing water only during and for a short
time after precipitations events). Twelve evenly spaced samples are required from a consecutive
12-month period. The proposal also would add a requirement to document the biological
condition of perennial and intermittent streams and the sediment load of the watershed, as well as
precipitation.
Monitoring During Mining and Reclamation
Current rules require limited monitoring of the quantity and quality of surface water and
groundwater. At a minimum, certain parameters (e.g., pH, total dissolved solids) must be
monitored every three months after reclamation is complete until final bond release. The
regulatory authority may modify or waive the monitoring requirements at any time if the
permittee makes certain demonstrations, including that the operation has minimized disturbance
to the hydrologic balance within the permit area and prevented material damage to the hydrologic
balance outside the permit area.
Under the proposed rule, monitoring of surface water and groundwater during mining and
reclamation must occur at least quarterly. The permittee must analyze each sample for the same
parameters measured during baseline sampling. Monitoring sites are to be designated in the
permit. The permittee must monitor the biological condition of streams annually until the data
demonstrate full restoration of the pre-mining biological condition of the stream. The permittee
must review all monitoring data annually to identify adverse trends. The permittee must collect
on-site precipitation measurements using self-recording rain gages. The plan for designing and
monitoring surface water runoff control structures requires an inspection following each storm
event with a two-year or greater recurrence-interval.
Definition of “Material Damage to the Hydrologic Balance Outside
the Permit Area”
Section 510(b)(3) of SMCRA provides that the regulatory authority may not approve a permit for
surface coal mining operations unless it first finds that the proposed operation has been designed
to prevent material damage to the hydrologic balance outside the permit area. However, neither
SMCRA nor current rules define “material damage to the hydrologic balance outside the permit
area.” OSM’s position, reflected in the current rules, has been that it would be difficult to
establish fixed criteria, because the means for measuring material damage may vary from area to
area and from operation to operation.
The proposed rules alter the agency’s views on defining the term. The rules would define
“material damage to the hydrologic balance outside the permit area” as any adverse impact from
surface or underground mining operations on the quantity or quality of surface water or
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groundwater, or on the biological condition of a perennial or intermittent stream, that would
preclude attainment or continuance of any designated surface water use under the Clean Water
Act, or any existing or reasonably foreseeable use of surface water or groundwater outside the
permit area. This definition would not be limited to impacts from surface mining activities or
impacts of activities conducted on the surface of the land, but also would apply to underground
coal mines, such as adverse impacts from subsidence resulting from underground coal mining
operations or release of toxic mine discharge to nearby surface waters.
Mining Activities In or Near Streams (Including Excess Spoil Fills
and Coal Mine Waste Disposal Facilities)
Mining in or near streams refers to activities such as construction of sedimentation ponds or coal
mine waste disposal facilities that take place within a stream or buffer zone. The activities may
sometimes cover the stream. Current rules provide that mining activities may not disturb land
within 100 feet of a perennial or an intermittent stream unless the regulatory authority specifically
authorizes activities closer to, or through, such a stream. The regulatory authority may authorize
such activities only after finding that doing so would not cause or contribute to a violation of
applicable water quality standards under the Clean Water Act and would not adversely affect the
water quantity and quality or other environmental resources of the stream. Although not
specifically mentioned in the rules, construction of excess spoil fills, refuse piles, slurry
impoundments, and sedimentation ponds in all types of streams and their buffer zones has been
allowed by OSM and most state regulatory authorities. Excess spoil minimization is not expressly
required by rule, but in practice, most states have adopted policies intended to minimize the
generation of excess spoil, as well as Clean Water Act policies to reduce both the number of
excess spoil fills and the length of streams covered by those fills.
The proposed rule would prohibit mining activities in or through perennial and intermittent
streams or on the surface of land within 100 feet of those streams unless the applicant makes
certain demonstrations and the regulatory authority makes specified findings. The regulatory
authority must find that the proposed activities would not: prevent attainment or maintenance of
applicable Clean Water Act designated uses or water quality standards; result in conversion of the
stream segment from intermittent to ephemeral, from perennial to intermittent, or from perennial
to ephemeral; or cause material damage to the hydrologic balance outside the permit area. These
requirements apply to all mining activities, including excess spoil fills and coal mine waste
disposal facilities that extend into the buffer zone, except the construction of excess spoil fills and
coal mine waste disposal facilities that cover perennial or intermittent streams. The permittee
must establish a 100-foot-wide or wider riparian corridor on each side of every perennial,
intermittent, and ephemeral stream following the completion of mining activities. The corridor
must be comprised of native trees and shrubs, including species with riparian characteristics.
The proposed rule requires the applicant to make certain demonstrations to the regulatory
authority to construct excess spoil fills and coal mine waste disposal facilities that would
encroach upon any part of perennial or intermittent streams. The applicant must demonstrate that
there is no practicable alternative that would avoid placement of excess spoil or coal mine waste
in the stream; that the location will have the least adverse impact on fish, wildlife, and related
environmental values; and that the fish and wildlife enhancement plan would fully and
permanently offset any long-term adverse impacts on fish, wildlife, and related environmental
values within the footprint of the fill, refuse pile, or impoundments. Existing rules are intended to
ensure that excess spoil fills are stable and safe, while the proposed rule adds requirements to
promote environmental protection, including minimizing the adverse effects of fill construction in
perennial and intermittent streams. The applicant also must demonstrate that the excess spoil or
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coal mine waste disposal facility has been designed so as to not cause or contribute to violating
water quality standards or result in formation of toxic mine drainage and that the revegetation
plan allows for reforestation of the completed excess spoil fill. The permittee must first obtain all
necessary Clean Water Act authorizations and permits before conducting any activity requiring
such authorization, and the SMCRA regulatory authority must take enforcement action if the
permittee does not get all permits before beginning work.
The proposed rule would prohibit construction of durable rock fills, which are allowed under
current rules. Durable rock fills use end-dumping as a means of spoil placement. With end-
dumping, operators push or dump rock overburden over the side of the mountain into the valley
below, with larger rocks rolling to the bottom of the valley, which can create structural instability
of the fill and impair good drainage. While end-dumping or other techniques that are not
conducive to compaction would be prohibited, other types of fills such as valley fills, head-of-
hollow fills, or sidehill fills would be allowed.
Mining Through Streams
Mining through streams refers to activities that take place when, because coal is located beneath a
streambed, operators divert the stream channel during mining and remove the streambed to
extract the coal. The original stream location may or may not be reconstructed after mining.
Under current rules, the regulatory authority may approve diversion of perennial or intermittent
streams within the permit area to allow mining through only after making a finding that the
diversion would not adversely affect the water quantity and quality and related environmental
resources of the stream. The design for restored stream channels for perennial and intermittent
streams (or permanent diversion channels for those streams) must restore or approximate the pre-
mining characteristics of the original stream channel, including the natural riparian vegetation.
The proposed rule would allow mining through any type of stream (perennial, intermittent, or
ephemeral), provided that the applicant demonstrates to the regulatory authority that there is no
reasonable alternative that would avoid mining through or diverting the stream; the operational
design would minimize the extent of stream mined through or diverted; and the hydrological form
of perennial, intermittent, and ephemeral streams and the ecological function of perennial and
intermittent streams could and would be restored using techniques in the proposed reclamation
plan. Designs for permanent stream-channel diversions, temporary diversions that would remain
in use for two or more years, and stream channels to be restored after completion of mining must
adhere to design techniques that would restore or approximate the pre-mining characteristics of
the original stream channel. Permittees would not be required to reestablish the pre-mining
biological condition of a stream, but it must be adequate to support pre-mining designated uses.
The permittee must establish a 100-foot-wide or wider riparian corridor on each side of every
perennial, intermittent, and ephemeral stream following the completion of mining activities. The
corridor must be comprised of native trees and shrubs, including species with riparian
characteristics.
Approximate Original Contour (AOC) and AOC Variances
Section 515(b) of SMCRA generally requires that mine spoil be returned to the mined-out area
and land be restored to its approximate original contour (AOC) after mining.38 Restoring AOC
means that rock that is removed during coal mining is replaced in an effort to achieve the original

38 30 U.S.C. §1265(b).
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contour, or surface topography, of the mined area (i.e., a level plateau or gently rolling contour).
However, the statute recognizes that for some types of coal mining operations, meeting this
requirement can be difficult. During mountaintop removal mining and steep slope mining, in
particular, rock that is taken from its natural state and broken up “swells” by as much as 15-25%,
and thus cannot be fully returned to the mountain or mine area. The remaining material, called
overburden, often is retained in nearby valleys, thus creating valley fills that may bury stream
segments. Section 515(c)(2) of SMCRA allows an exception from the AOC requirement for
mountaintop removal mining operations.39
Under current rules, mountaintop removal mining operations may be exempt from AOC
restoration requirements if the post-mining land use and post-mining surface topography
requirements of SMCRA are met. To obtain a permit for mountaintop removal mining operations,
the proposed post-mining land use must be a commercial, industrial, residential, agricultural, or
public facility land use. The regulatory authority must find that the proposed post-mining land use
meets all requirements for alternative post-mining land uses and is an equal or better economic or
public use of the land compared to its pre-mining use.
The proposed rule is generally similar to current rules in allowing mountaintop removal mining
operations to be exempt from the law’s AOC requirement. The proposed rule would require that
applicants for AOC variances for mountaintop removal operations demonstrate that no damage
would result to natural watercourses within the watershed(s) of the proposed permit and adjacent
area. The applicant must demonstrate that there would be no adverse changes in parameters of
concern in discharges to surface water and groundwater and that no change would occur in the
size or frequency of peak flows, as compared to the peak flows that would occur if the permittee
restored the site to AOC. The permittee must reforest the site with native species, if the site was
forested before submission of the permit application, unless reforestation would be inconsistent
with the post-mining land use.
Section 515(d) of SMCRA also allows surface coal mining operations in steep slope areas to
apply for and receive a variance from the law’s AOC requirement, in exchange for creation of
specific post-mining land use that is compliant with the statute and regulations.40 Under current
rules, AOC variances for steep slope mining operations are allowed. The proposed post-mining
land use must be of an industrial, commercial, residential, or public (including recreational
facilities) nature. The post-mining use must be an equal or better economic or public use. The
applicant must demonstrate that the proposed operation will improve the watershed when
compared to either pre-mining conditions or the conditions that would exist if the applicant
restored the area to AOC after mining.
Under the proposed rule, requirements allowing steep slope operations to seek AOC variances are
generally similar to those under current rules. Under the proposal, for approval of steep slope
variances, permit applicants must demonstrate that certain criteria are met. The criteria include:
 the operation will result in fewer adverse impacts to the aquatic ecology of the
impact area than would occur if the site were mined and restored to AOC;
 surface water flow in the watershed would be improved over both pre-mining
conditions and conditions that would exist if the area were mined and restored to
AOC;

39 30 U.S.C. §1265(c)(2).
40 30 U.S.C. §1265(d).
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 the variance would not result in construction of an excess spoil fill in an
intermittent or perennial stream; and
 any deviations from the pre-mining surface configuration are necessary,
appropriate, and no larger than needed to achieve the post-mining land use.
Revegetation, Reforestation, and Topsoil Management
Under current rules, the permittee must restore all disturbed areas to a condition in which they are
capable of supporting the uses that they were capable of supporting before any mining or higher
or better uses. The permittee must salvage and redistribute all topsoil, unless alternative
overburden materials are approved as being equal to or better than the existing available topsoil to
support vegetation. Revegetation success standards must be based on the effectiveness of the
vegetation to support the approved post-mining land use and general requirements, such as a
diverse and permanent vegetative cover.
The proposed rule is similar to current rules, but with greater emphasis on restoration of the site’s
ability to support the uses it supported before any mining, regardless of the approved post-mining
land use. The proposal also places greater emphasis on construction of a growing medium with an
adequate root zone for deep-rooted species and on revegetation with native tree and plant species.
It requires salvage and redistribution of all organic matter (e.g., vegetative materials such as
treetops and small logs) from native species in accordance with an approved plan developed by a
qualified ecologist or similar expert. Burning and burial of debris from native vegetation is
prohibited, and the operator would use materials not otherwise used in the reclamation plan to
construct fish and wildlife enhancement measures.
Fish and Wildlife Protection and Enhancement
Under current rules, in addition to including fish and wildlife resource information for the
proposed permit area and adjacent area, each permit application must also include a fish and
wildlife protection and enhancement plan. The mine operator must, to the extent possible using
best technology currently available (BTCA), minimize disturbances and adverse impacts to fish,
wildlife, and related environmental values and enhance such resources where practicable. Surface
mining activities must not jeopardize the continued existence of endangered or threatened species
or result in the destruction or adverse modification of designated critical habitats of such species
in violation of the Endangered Species Act. The permittee must avoid disturbances to wetlands
and riparian vegetation along rivers and streams and must avoid disturbances to habitats of
unusually high value for fish and wildlife. These resources must be restored or enhanced, where
practicable. Where fish and wildlife habitat is to be a post-mining land use, current rules require
that plant species on reclaimed areas be selected based upon their proven nutritional value for fish
or wildlife, their use as cover for fish or wildlife, and their ability to support and enhance fish or
wildlife habitat after bond release.
The proposed rule is similar to current rules regarding protection of threatened and endangered
species, but it also would codify dispute resolution provisions between OSM and the U.S. Fish
and Wildlife Service that have been utilized since 1996 but are not included in current rules.
Likewise, the proposal is similar to current rules regarding the fish and wildlife resource
information and protection and enhancement plan required in the permit application. It further
requires the permittee to establish a 100-foot-wide or wider permanent riparian corridor on each
side of every perennial, intermittent, and ephemeral stream following the completion of mining
activities. The corridor must be comprised of native trees and shrubs, using appropriate species of
woody plants if the land would naturally revert to forest under natural succession. Fish and
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wildlife enhancement measures would be mandatory whenever the proposed operation would
result in long-term loss of native forest, loss of other native plant communities, or filling of a
segment of an intermittent stream. The proposed rule would allow the regulatory authority to
prohibit mining of high-value habitats within the proposed permit area.
Implementation Schedule
According to the Draft RIA, a final Stream Protection Rule, when promulgated, will take effect in
states with federal programs (currently Tennessee and Washington) 60 days after publication in
the Federal Register.41 Generally, permit applications approved after that date must comply with
the rule, and existing mining operations must comply with provisions of the rule no later than the
time of permit renewal (within five years).
The Draft RIA estimates that in states with approved regulatory programs, implementation may
take up to 42 months, as these states develop regulations and policies consistent with a new
federal rule (generally taking about 18 months), OSM reviews and approves state program
amendments (generally about seven months), and states implement the approved program
amendments (within one year from OSM approval). Primacy states would not lose authority over
their programs during this period, which could extend beyond the estimated 42 months. Existing
mining operations must comply with provisions of the rule no later than the time of their permit
renewal (within five years). This timeline could mean that, if a final rule is promulgated a year
after proposal—an ambitious timeline for what is likely a controversial rule—implementation in
these states would occur no sooner than January 2020.
Impacts of the Proposed Rule
The Draft RIA report presents OSM’s estimates of costs and benefits of the proposed rule, and it
also describes uncertainties associated with the analyses.
Costs42
OSM estimates that the coal industry will incur annual compliance costs of $52 million under the
proposed rule, above baseline costs that would be incurred in the absence of the rule. Forecast
compliance costs vary significantly by mine type and between regions. The $52 million total
consists of $45 million annually for surface coal mining operations and $7 million annually for
underground mining operations.43 Nearly 46% of the expected compliance costs reflect new
regulatory requirements on coal mining operations in the Appalachia region. Of the increased
costs for operations in Appalachia, OSM estimates that 72% are for costs to surface mining
operations there—or, 33% of the total cost of the rule. Surface mines in the Illinois Basin and
Western Interior regions are expected to experience cost increases of $0.60 per ton as a result of
the proposed rule, while underground mines in those regions are expected to experience no
increase in operational costs. In Appalachia, the average compliance cost for surfaces mines is

41 Draft RIA, pp. 1-11—1-12.
42 See Draft RIA Chapters 4 and 6.
43 Costs described here are 2014 dollars discounted at a rate of 7%. The Draft RIA also includes separate estimates of
costs discounted at a rate of 3%.
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estimated to increase operational costs by $0.40 per ton, while compliance costs for underground
mines in Appalachia are expected to increase $0.01 per ton.44
OSM also estimated administrative costs of the proposed rule for industry and government,
representing primarily monitoring and permitting activities. In most cases, according to the
agency, added administrative costs resulting from the rule are expected to be small for industry,
adding on average about $0.01 per ton of coal mined. Costs in Appalachia will be slightly higher:
$0.03 per ton for surface mining operations and $0.04 per ton for underground mines. Additional
administrative costs for government entities are estimated to range from $1,830 per mine for
underground mining regulating agencies in the Illinois Basin and the Western Interior, to $2,546
per mine for surface area mining regulating agencies in Central Appalachia and in the Northwest.
In total, OSM estimates that government administrative costs will average $46,000 annually, with
the highest annual costs experienced by regulating agencies in the Northern Rocky Mountains
and Great Plains region ($24,200 total annualized costs).
OSM estimated that 382 mines operated by small entities (i.e., mines with fewer than 500
employees, which is the Small Business Administration’s definition of small entity) would be
affected by the proposed rule. Of the total, 91% of such mines are located in Appalachia. OSM
also estimated that 76% of the mines in Appalachia owned by small entities would experience
compliance and administrative costs of less than 5% as a share of their revenues. However, nearly
11% of such mines in Appalachia would incur costs of 10% or more. In the Draft RIA, OSM
notes that SMCRA Section 507(c) establishes a small operator assistance program and says that,
if appropriations for it are made available, this program could assist some small operators with
training and financial assistance in preparing elements of permit applications. OSM estimates that
compliance costs for SBA small entities would range between zero and 3.6% of gross annual
revenues, depending on the mining region. In Appalachia, compliance costs are estimated to
average 4.7% of gross annual revenues for surface mines and 2.5% of gross annual revenues for
underground mines. 45
OSM estimates that the total aggregate annual compliance and related costs associated with the
proposed rule would not exceed $60 million. Because the projected costs would not have an
annual effect on the economy of $100 million or more, the rule is not considered an economically
significant rule by the Office of Management and Budget, nor is it a major rule under the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. §804.2).
Absent the proposed rule, OSM’s forecast for U.S. coal production shows a decrease of 162
million tons between 2020 and 2040, representing a 15% decrease during that period. The
proposed rule is expected to affect coal production and consumption patterns across the United
States over and above baseline conditions. OSM recognizes that the proposed rule will increase
the cost of producing coal, which may lead to an aggregate reduction in coal production. The
agency estimates that under the proposed rule, coal production will decrease in aggregate by
about 1.9 million tons annually, or approximately 0.2% compared with production expected under
the baseline. OSM states that the reduction largely reflects substitution of natural gas for coal
among U.S. power plants, due to the increase in coal prices expected under the proposed rule.46
These changes in coal production will not be uniform and are expected to occur primarily in

44 Draft RIA, p. 4-24.
45 To comply with requirements of the Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, in order to describe the effect of the rule on small entities, OSM prepared an Initial
Regulatory Flexibility Analysis, which is an appendix to the Draft RIA.
46 Draft RIA, p. ES-19.
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Appalachia (coal production is expected to decrease by 17.9 million tons between 2020 and 2040,
or 0.4% of baseline production in the region), the Illinois Basin (an expected decrease of 6.4
million tons, or 0.2% of the region’s baseline), and the Northern Rocky Mountain region
(expected decrease of 14.7 million tons, or 0.1% of the region’s baseline coal production).
One measure of the proposed rule’s effects could include reduction in coal reserve values
associated with the rule, i.e., if coal reserves are “stranded.” However, OSM’s analysis indicates
that there will be no increase in stranded reserves under the proposal (or any of the other
alternatives that the agency evaluated to develop the proposal). That is, OSM’s engineering
analyses determined that the same volume of coal could be mined under the proposed rule as
under current rules.47
Coal industry employment is projected to decrease by over 15,000 full-time equivalents (FTEs,
i.e., one full-time worker employed for one year) between 2020 and 2040, even absent the
proposed rule, compared with 90,000 persons employeed in 2012. OSM estimates that changes in
coal industry employment resulting from the proposed rule will combine with these ongoing
trends. Production-related reductions in annual employment demand are anticipated to range from
41 to 590 jobs below baseline projections, but they would be partially offset by annual
employment demand increases ranging from 210 to 270 jobs above baseline projections. Some of
the expected increased demand for coal-related labor would be for new highly skilled jobs (e.g.,
engineers and biologists), while others are expected to require similar skills as currently used by
the industry (e.g., bulldozer operations). Overall, the proposed rule is expected to reduce coal-
related employment by 260 jobs on average each year due to decreased coal mined, while an
additional 250 jobs will be created from increased compliance activity on average each year.
Severance tax revenue for a state is directly related to coal mining activity.48 Although the details
of individual states’ coal severance tax systems vary, regulatory changes that reduce production in
a given region will result in reduced tax revenue. Changes in coal production under the proposed
rule also are expected to result in changes in coal severance tax revenue to states. In total, OSM
forecasts an annualized decline in severance tax revenues of $2.5 million, across all coal-
producing states. That estimate compares with over $1.1 billion in coal severance tax revenues
collected by states in 2012. The anticipated decline will primarily be experienced in West Virginia
and Kentucky, which OSM estimates will bear over 80% of the lost severance tax revenues.49
Environmental and Human Health Benefits50
Overall, OSM asserts that changes in mining practices resulting from the Stream Protection Rule
will likely reduce adverse impacts on the environment and human health. For some categories of
impacts, OSM is able to quantify benefits in terms of biophysical changes. For example, the
agency projects that the proposed rule will improve water quality because fewer stream miles will
be adversely affected (i.e., 4 stream miles will not be filled annually, 29 stream miles will be
restored annually; 1 downstream stream mile that does not experience adverse water quality
impacts will be preserved annually; and 292 downstream stream miles will be improved

47 OSM defines stranded reserves as those that are technically and economically minable, but unavailable for
production given new requirements and restrictions included in the proposed rule. Ibid., p. 5-6.
48 A severance tax is imposed by a state on the extraction of non-renewable natural resources, such as coal, oil or gas.
49 Draft RIA, pp. 6-18—6-19. A decline in coal production also would reduce receipts from reclamation fees collected
on coal production that finance the Abandoned Mine Reclamation Fund. This would have an impact on federal grants
to states for reclamation of abandoned coal mines.
50 See Draft RIA, Chapter 7.
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annually). Similarly, stream restoration and reforestation provisions of the proposal are estimated
to result in 2,811 acres of forest improved annually and 20 acres of forest preserved annually.
However, because of data limitations, OSM is unable to quantify most categories of benefits or to
reliably monetize any of benefits. Qualitatively, the agency projects that the proposed rule will
have several types of benefits.
 Improved aesthetics may improve property values and the quality of recreational
opportunities.
 Reforestation requirements and fill design changes will increase carbon storage
and reduce emissions, thus reducing human health risks and climate-change
related risks.
 Stream restoration and reforestation requirements will reduce human exposure to
contaminants in drinking water and probability of adverse health effects.
 Improvements to water quality and forest and biological resources will result in
potential for increased recreational opportunities.
Uncertainties in the Analyses
OSM acknowledged that there are a number of important caveats and limitations in its analyses of
impacts of the proposed rule.51 For example, compliance costs and changes in industry practice
that will be associated with the rule are not known with certainty and are likely to vary by mine
type and location in ways that cannot be completely captured in OSM’s analyses. Also, future
coal supply and demand are not known with certainty. Whether the proposed rule will result in
permitting delays is unknown, and future regulatory initiatives that could impact the industry are
not known or accounted for (e.g., existing and potential environmental regulations beyond the
proposed Stream Protection Rule). Finally, OSM’s estimates of administrative costs may prove to
differ from actual expenses, depending on the accuracy of OSM’s assumptions, and the agency is
asking for public comment on these costs.
Regarding benefits, OSM acknowledged that limitations include the inability to accurately and
reliably monetize quantified benefits that are associated with water quality and biological
resource improvements, as well as the inability to quantify benefits from the proposed rule
accruing to public health, air quality, and recreation. These limitations make it difficult to weigh
economic impacts against environmental and public health benefits.52
Reactions to the Proposed Rule, Congressional
Interest, and Next Steps
In the coming weeks, interested parties and stakeholders will have the opportunity to submit
detailed comments on the proposed rule and related documents. Even before that, however, some
stakeholders announced initial reactions to the proposal.
The president of the National Mining Association (NMA) issued a statement criticizing the rule,
saying “This is a rule in search of a problem.” He called on Congress to block the rule. According
to NMA, OSM has produced no evidence to justify more regulations, and the rule will needlessly

51 Draft RIA, pp. 4-30, 5-29, 6-26.
52 Ibid., p. 7-29.
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interfere with state agencies’ mining and water quality laws.53 A statement by the West Virginia
Coal Association was similarly critical. “OSM’s estimate that ‘only’ 200 mining jobs would be
lost due to the implementation of this plan has about as much validity [as] a carnival sideshow
palm reading.” 54
Press reports indicate that state regulators have concerns about the proposed rule, in terms of
changes in practices, policies, and state rules that new federal rules would require. States are
likely to closely examine estimates of administrative costs to regulators resulting from the rule.55
Environmental advocacy groups have supported OSM’s efforts to develop a more
environmentally protective rule, but many are now critical of the proposed rule. Some say that it
is long-overdue, but that it does not do enough to protect streams. Press reports indicate that some
contend that a rule to prohibit mining activities entirely within the buffer zone would be
preferable, in their view.56 Some advocates fault OSM for not proposing the most
environmentally stringent regulatory alternative among those that the agency considered.
Regulatory Alternative 2, which OSM did not select, would have prohibited all mining activities
in or within 100 feet of perennial streams and would have prohibited the placement of excess
spoil in both perennial and intermittent streams. It would have allowed no exceptions from the
requirement to restore mined lands to their approximate original contour. These changes would
require an amendment to SMCRA, because the law currently allows exceptions to the AOC
requirement for mountaintop removal mining and steep slope mining operations. According to
OSM, this alternative would have greater benefits than the proposed rule (e.g., 8 stream miles not
filled annually, compared with 4 stream miles under the proposal, and 57 stream miles restored
annually, compared with 29 stream miles under the proposal), but also nearly twice the
compliance costs and twice the reduction in coal production.57 Environmental groups have
expressed concern that, no matter how protective a rule is adopted, enforcement should be
strengthened.
Congressional Interest
Congressional interest in OSM’s efforts to develop new SMCRA implementing rules has been
strong for some time. Bills intended to block new rules have been introduced. Numerous
oversight hearings have been held, raising many issues of concern to policymakers, including
transparency of the rule development process, sufficiency of coordination between OSM and state
regulators, and potential economic impacts and job loss resulting from the rules.
Legislation has been introduced in the 114th Congress to halt or re-direct OSM’s activities
concerning the Stream Protection Rule. One such bill, the Supporting Transparent Regulatory and
Environmental Actions in Mining Act (STREAM Act, H.R. 1644), was approved by the House
Natural Resources Committee on September 10. As amended and ordered reported, the bill would

53 National Mining Association, “National Mining Association Calls on Congress to Block OSM’s Costly, Unnecessary
Stream Rule,” press release, July 16, 2015, http://nma.org/index.php/press-releases-2013/2237-national-mining-
association-calls-on-congress-to-block-osm-s-costly-unnecessary-stream-rule.
54 West Virginia Coal Association, “WVCA Responds to OSM’s Stream Buffer Zone Rule,” press release, July 17,
2015, http://www.wvcoal.com/latest/wvca-responds-to-osm-s-stream-buffer-zone-rule.html.
55 Manuel Quinones, “Coal: State Regulators Wary of Stream Rule’s ‘Sheer Massive Nature’” Energy and Environment
News, July 17, 2015.
56 Nicholas Fandos, “U.S. Proposes New Rules to Protect Streams From Coal Pollution,” New York Times, July 16,
2015, online edition, http://www.nytimes.com/2015/07/17/us/us-proposes-new-rules-to-protect-streams-from-coal-
pollution.html.
57 Draft RIA, pp. 7-2, 8-8, 8-12—8-21.
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amend SMCRA to authorize OSM, in cooperation with the Interstate Mining Compact
Commission and its member states, to enter into an agreement with the National Academy of
Sciences (NAS) to conduct a study on the regulatory effectiveness of the 1983 Stream Buffer
Zone rule in order to determine the need for an update of the rule. It also would require the
Secretary of the Interior to make scientific data and information used by OSM to develop any
rule, policy, or guidance publicly available. A similar bill, S. 1458, also titled the STREAM Act,
would amend SMCRA to require the Secretary to make scientific data and information used to
develop any rule publicly available, but it does not include a provision for a study by the NAS.
A bill reported by the House Appropriations Committee, FY2016 appropriations for the
Department of Interior, Environment and Related Agencies (H.R. 2822), would prevent OSM
from expending FY2016 appropriated funds to develop, carry out, or implement any guidance,
policy, or directive to change the 1983 stream buffer zone rules in FY2016.58 The restriction in
H.R. 2822 would not prohibit OSM from utilizing unexpired unobligated balances in the OSM
Regulation and Technology Account that could still be available for the rulemaking.59
Bills such as these face a steep path to enactment, because President Obama likely would oppose
halting or weakening a major regulatory initiative of the Administration. For a bill to become law,
the President must sign it or allow it to become law without his signature, or two-thirds of the
House and Senate must vote to override his veto. Limitations in appropriations bills may be
considered an easier approach than amending SMCRA, since the overall appropriations bill
would presumably contain other elements making it “must pass” legislation, or more difficult for
the President to veto.
Next Steps
The draft EIS on the Stream Protection Rule, the proposed rule, and the draft Regulatory Impact
Analysis are open for public comment until October 26, 2015. The agency is holding public
hearings on the proposal in Denver, CO (Sept. 1); Lexington, KY (Sept. 3); St. Louis, MO (Sept.
10); Pittsburgh, PA (Sept. 10); Big Stone Gap, VA. (Sept. 15); and Charleston, WV (Sept. 17).60

Author Contact Information

Claudia Copeland

Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227


58 A bill reported by the Senate Appropriations Committee, S. 1645, does not include a similar restriction. However, the
committee indicated concern about OSM’s work on developing a new rule in the report on S. 1645. U.S. Congress,
Senate Committee on Appropriations, Department of the Interior, Environment, and Related Agencies Appropriations
Act, 2016, 114th Cong., 1st sess., S.Rept. 114-70 (Washington: GPO, 2014), p. 36.
59 OSM has available an estimated $26 million in unexpired unobligated balances in FY2015. See Office of
Management and Budget, Fiscal Year 2016, Budget of the U.S. Government, Appendix, pp. 642-643.
60 See http://www.osmre.gov/resources/newsroom/News/2015/081015.pdf.
Congressional Research Service
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