Interior Department Reconsiders Stream Buffer Zone Rule

In the ongoing fight over surface coal mining, most of the attention has been directed to the section 404 permits that are issued by the Corps of Engineers, and subject to review by EPA. If any streams are going to be filled, a 404 permit is going to be required. But there is also a provision under the Surface Mining Control and Reclamation Act (SMCRA)called the Stream Buffer Zone, or SBZ, that limits the amount and location of fill material that can be placed in or near streams. The Fourth Circuit has already ruled that SMCRA contemplates placement of some excess spoil in waters of the United States, in Kentuckians for the Commonwealth, Inc v. Rivenburgh, 317 F.3d 425, 442-443 (4th Cir. 2003) and the Interior Department published a rule in 2008, toward the close of the Bush Administration, defining the SBZ in a manner favorable to mining. Several environmental groups challenged the rule, and the Interior Department (now under a new administration) asked the Court to vacate the rule. The court refused to do so, saying that to vacate the rule at the request of the Interior Department would effectively allow it to bypass the Administrative Procedure Act requirements for withdrawing or amending a rule.

Interior has now proposed revising the SBZ, and has identified 7 options for change. They can be found in the Federal Register notice, starting at 74 Federal Register 62663 (November 30, 2009). The preamble does a great job of providing an understandable history of the SBZ. The time for public comment has passed, but you may want to take a look if you're interested in mountaintop mining issues. Interior's summary of its action follows.

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are seeking comments on our intention to revise our regulations concerning the conduct of mining activities in or near streams. We have determined that revision of the stream buffer zone (SBZ) rule published on December 12, 2008, is necessary to implement the interagency action plan that the Administration has developed to significantly reduce the harmful environmental consequences of surface coal mining operations in Appalachia, while ensuring that future mining remains consistent with Federal law. In this notice, we describe and seek comment on the alternatives that we are considering for revision of the SBZ rule. In addition, we request your help in identifying significant issues, studies, and specific alternatives that we should consider in the SEIS for this rulemaking initiative. The June 11, 2009, memorandum of understanding (MOU) implementing the interagency action plan also calls for us to consider whether revisions to other OSM regulations (including, at a minimum, approximate original contour requirements) are needed to better protect the environment and the public from the impacts of Appalachian surface coal mining. We have identified addition of a definition of ``material damage to the hydrologic balance'' as one such possibility. We invite comment on that option as well as whether there are other OSM regulations that could be revised to implement this provision of the MOU.