OSM Finalizes the Stream Protection Rule

OSM Finalizes the Stream Protection Rule

On December 19, 2016, the Office of Surface Mining Reclamation and Enforcement (OSM) of the Department of the Interior promulgated a rule to improve implementation of the Surface Mining Control and Reclamation Act (SMCRA) and reduce impacts of coal mining operations on groundwater and surface water, fish, wildlife, and related environmental values. The rule, called the Stream Protection Rule, was published in the Federal Register on December 20. It is effective on January 19, 2017.

Development of the Stream Protection Rule has been underway since 2009 and has been contentious throughout the rulemaking process. Critics in the coal mining industry and some Members of Congress have argued that a new nationwide rule is not needed and that the rule will impose costs that will greatly affect the viability of the coal mining industry in the United States. Many state regulators contend that OSM failed to coordinate and consult with states during the rule's development and that the rule undermines their primary role in implementing SMCRA. At the same time, some environmental advocacy groups that have generally supported efforts to strengthen regulation of coal mining operations contend that the rule is not strong enough (for example, that it will not fully protect ephemeral streams or prohibit controversial mountaintop coal mining practices). The rule's background and development are described in CRS Report R44150, The Office of Surface Mining's Proposed Stream Protection Rule: An Overview.

OSM asserts that updated rules—revising rules that were promulgated in 1983—are needed to reflect current science, technology, and modern mining practices. Further, OSM contends that revised rules are needed to strike a better balance between "protection of the environment and agricultural productivity and the Nation's needs for coal as an essential source of energy," which is one of the purposes of SMCRA, while providing greater regulatory certainty to the mining industry. The final rule announced on December 19 is intended to improve SMCRA's implementation in several ways. According to the Final Environmental Impact Statement:

It will provide objective standards to clearly define the point at which adverse mining-related impacts to both groundwater and surface water reach an unacceptable level.

It will ensure that adequate pre-mining data are collected to establish a comprehensive baseline for evaluating effects of mining and that effective monitoring of groundwater and surface water will occur during and after both mining and reclamation.

It will ensure protection or restoration of streams and related resources, including headwater streams that are important to maintaining the ecological health and productivity of downstream waters.

It will ensure that permittees and regulatory authorities make use of advances in information, technology, and science.

It will ensure that land disturbed by surface coal mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before any mining.

It updates OSM's regulations concerning compliance with the Endangered Species Act.

OSM estimates that the rule's benefits to streams and forests will include improved water quality in 263 miles of streams per year downstream of mine-sites and improved reforestation of nearly 2,500 acres of mined land per year. In terms of economic impacts, OSM estimates that the rule will result in an average annual net employment gain of 156 fulltime equivalents (an annual reduction of 124 fulltime equivalents in coal production employment combined with an average annual gain of 280 fulltime equivalents related to implementation of the rule). Further, OSM estimates that total industry compliance costs would average $81 million per year during 2020-2040 (0.1% or less of aggregate annual industry revenues), and that the rule will result in an average annual 0.08% reduction in coal production during that same period, equating to 700,000 tons of coal. Industry critics dispute OSM's estimates of compliance costs and employment impacts, and they argue that adverse effects on coal production will be greater than OSM states. The Preamble to the final rule presents OSM's responses to these and other criticisms of the rule and rulemaking process. The final rule closely resembles the July 2015 proposed rule, with some changes, but the modifications are unlikely to satisfy either those who argued that the proposal went too far, or others who sought a more environmentally protective rule.

Congressional interest in OSM's efforts to develop new SMCRA implementing rules has been strong for some time. Senate and House authorizing and appropriations committees held hearings to examine the proposed rule and its development. Legislation to halt or re-direct OSM's activities concerning the Stream Protection Rule also was introduced, and in January 2016, the House passed one such bill, the STREAM Act (H.R. 1644).

Some now say that OSM's multi-year efforts to revise the SMCRA regulations and release a final rule before the conclusion of the Obama Administration were largely for naught. Statements issued by some congressional leaders soon after release of the final rule on December 19, including by Senate Majority Leader McConnell and House Natural Resources Committee Chairman Bishop, indicated their intention for the 115th Congress to overturn the rule under procedures of the Congressional Review Act, which established a special parliamentary mechanism whereby Congress can disapprove a final rule promulgated by a federal agency, or to work with the Interior Department beginning in 2017 to issue a new rule. If the final rule were overturned by legislation, Executive Branch action, or legal challenge, existing rules (i.e., rules promulgated in 1983) would remain in place, unless or until a new rule or agency guidance were issued.