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After Years of Work, Federal Office Proposes Rule to Protect Streams from Coal Mining

Gabe Bullard

The federal government on Thursday unveiled a controversial and long-awaited rule to protect streams from coal mining damage. The coal industry was quick to criticize the proposed rule for placing more regulatory burdens on the flagging industry, while environmental groups say the rule isn’t strong enough.

The Stream Protection Rule lays out the rules that apply to coal companies operating near waterways. It will require the companies to test water quality before, during and after coal mining, as well as to restore streams and return mined-over areas to their previous state when mining is finished.

Interior Secretary Sally Jewell told reporters that the proposed rule is based on science.

“That’s what Americans expect from their government: a modern and balanced approach to energy development that safeguards our environment, protects water quality, supports the energy needs of the nation, and makes coalfield communities more resilient for a diversified economic future,” she said.

The stream buffer zone was originally a Reagan-era rule that prohibited mining companies from dumping waste from strip mines within 100 feet of a stream. In 2008 under President George W. Bush, the rule was amended to allow a waiver for some companies. That version of the rule was struck down by a federal court in February 2014.

Since 2009, the Obama Administration has been working on this rewrite of the rule—they’re calling it the Stream Protection Rule. From the beginning, the rule has been controversial. The Department of the Interior has been accused by the coal industry and Congressional Republicans for intentionally understating the rule’s economic impact. Some of those accusations were confirmed in a 2013 Inspector General’s report.

The report found that once media reports leaked information that 7,000 jobs would be lost under the new rule, OSM directed the Lexington-based consulting firm working on the rule to use a different rubric to calculate the effect the rule would have on coal mining jobs. The end result was a smaller number of jobs lost. But the report didn’t find evidence that there was undue political influence in the rulemaking process.

According to Office of Surface Mining Reclamation and Enforcement Director Joseph Pizarchik, these are the seven major things the proposed rule would do:

1.    Define statutory term on material damage for the hydrologic balance outside the permit area for the first time, and requires that each permit establish the  point where adverse mining impacts on ground and surface water are unacceptable;
2.    Set how to collect accurate data before mining begins, so there’s a baseline for water quality;
3.    Lay out how to conduct effective monitoring of ground and surface water to provide real-time information about water quality and quantity;
4.    Protect restoration of perennial and intermittent streams;
5.    Make sure that permitees and regulatory agencies pay attention to the latest science when issuing permits;
6.    Insure land disturbed by coal mining is restored to the conditions capable of supporting the uses that the land was capable of supporting pre-mining;
7.    Update and codify procedures to protections of endangered species and habitats.

In a conference call, Secretary Jewell told reporters that the regulation’s expected effect on jobs will be “relatively minor.” She said estimates indicate 460 jobs may be lost in coal mining communities around the country, but that is expected to be offset by more than 250 jobs that will be created by the ramped-up efforts to restore streams.

Regulators also expect the rule to result in a decline in coal severance taxes, especially in Kentucky and West Virginia. Pizarchik said economic analyses suggest a total decline of $2.5 million in severance tax revenue across all coal-producing states. The price of coal is expected to rise slightly, especially in Central Appalachia where the coal is the most expensive to mine.

Pizarchik said the rule doesn’t prohibit coal companies from placing dirt and rocks from mountaintop removal sites into perennial or ephemeral streams, creating valley fills. But “they will have to provide off-setting environmental enhancement measures,” preferably in the same watershed.

Regulators noted that this rule gives mining companies what they’ve been asking for since the beginning of Obama’s presidency: “regulatory certainty.” But the rule wasn’t greeted with enthusiasm by the mining industry.

In a statement, National Mining Association President Hal Quinn called on Congress to block the rule.

“This is a rule in search of a problem. It has nothing to do with new science and everything to do with an old and troubling agenda for separating more coal miners from their jobs. The agency’s own reports on existing state regulatory programs show the vast majority of mine sites are free of any offsite impacts, and the agency has produced no evidence to justify more regulations, let alone redundant ones that interfere with state agencies mining and water quality laws.”

Senate Minority Leader Mitch McConnell echoed those concerns.

“This costly proposed regulation is aimed squarely at the lifeblood of the commonwealth’s economy and the livelihoods of Coal Country workers and their families. Taken together with other Washington regulations that are already having a devastating impact, it’s impossible not to conclude that the Obama Administration is engaging in all-out economic warfare on these communities. I will continue to do all I can to fight back against the Obama Administration’s repeated and gratuitous attacks on Kentuckians whose only crime is working hard to maintain a reliable source of energy and provide for their families.”

Environmental groups were nonplussed, too.  A statement from a coalition of environmental nonprofits including the Sierra Club, Earthjustice, Kentuckians for the Commonwealth and the Kentucky Waterways Alliance called on OSM to strengthen the regulation.

Sierra Club Beyond Coal Senior Director Bruce Nilles wrote:

“Appalachian communities rely on the rivers and streams covered by these protections, and today’s proposal doesn't adequately safeguard those communities. The state governments in Appalachia have simply failed to protect our communities, and, and water from the destruction of mountaintop removal mining. We need the federal government to create thoughtful stream protections that ban valley fills and ensure an end to this destructive practice. As OSM finalizes this standard, we will continue to advocate strongly in order to ensure Appalachia gets the strongest protections possible.”

The proposed rule will be open for public comment for 60 days, and the Department of the Interior will hold public meetings across the country to take comments in person. The dates of the meetings haven’t been released, but one will be in Lexington. Other meetings will be held in Charleston, W.V.; Pittsburgh; St. Louis; and Denver.

Erica Peterson is WFPL's Director of News and Programming.