MTR Part IV: Controversial proposed change to Stream Buffer Zone by OSM

The current administration recently proposed a controversial change in the SBZ rule. It sounds as though they plan to implement a new regulation to exempt certain coal mining activities from the Stream Buffer Zone Rule. As mentioned before, there is some confusing wording in the SBZ rule and as a consequence, it would be reworded to more accurately reflect the wording of SMCRA. I have examined the part of SMCRA that the SBZ rule is derived from and don’t find the change to be significant. As repugnant as I and others may find the practice of MTR, valley fills and the like, the change seems only to put into clearer terms what is already legal according to SMCRA.

Bush Administration’s Proposed New Rule (3/21/02 Draft)
§ 816.57 Hydrologic balance: Stream buffer zones.
(a) General. You must first obtain specific approval from the regulatory authority before conducting surface mining activities within 100 feet of a perennial or intermittent stream. Except as provided in paragraph (b), the regulatory authority may authorize such activities only after making a written finding that the activities will—
(1) Not cause or contribute to a violation of applicable State or Federal water quality standards.
(2) Be conducted to minimize disturbances to the quantity and quality of water in the stream. This finding need not be made with respect to any reach of the stream that is upstream of a sedimentation pond located within the stream channel; provided that the pond meets the location requirements of § 816.46(c)(1)(ii) of this part.
(3) Be conducted in a manner that minimizes disturbances and adverse impacts to fish, wildlife, and related environmental values of the stream.
(b) Placement of excess spoil in perennial or intermittent streams. The findings required in paragraphs (a)(1)-(3) do not apply to the construction of excess spoil fills in perennial or intermittent streams. To approve construction of fills in these streams, the regulatory authority must find that the applicant has—
(1) Minimized the creation of excess spoil to the maximum extent practicable as required under § 780.18(b)(3) of this chapter and § 816.102(b) of this part; and
(2) Designed the fill to avoid or minimize adverse impacts to perennial or intermittent streams to the extent required under §780.16(c) of this chapter and § 816.97(f) of this part.
(Mountains, 2007)

“The agency is proposing to fully implement the requirements established by Congress, and water from strip-mined areas still must meet state and federal water-quality standards," OSM contends. (Bruggers & Dunlop, 2007) The Office of Surface Mining points out that this proposal is a revision that will clarify existing requirements for mining in and around streams. They say that this is an effort aimed at achieving regulatory stability in Appalachia. (Owens, 2007)
OSM admits that valley fills disturb streams, but they must work within the bounds of SMCRA. It is their contention that this change will not have any noticeable impact on the way things are done in Appalachia.
Under the current stream buffer zone regulation, the length of streams permanently or temporarily directly impacted will be considerable. Approximately 535 miles of intermittent and perennial streams will be temporarily or permanently affected nationwide just from surface coal mining operations permitted from October 1, 2001 to June 30, 2005. We do not anticipate that revision of the stream buffer zone as described in the alternatives would cause additional stream disturbance as compared to the “No Action” alternative. (Enforcement, Environmental Impact Statement, 2007)


It is interesting to note that OSM did consider several alternatives, one of which would have amended the rule to prohibit any mining activity within the 100ft buffer zone. They discarded this alternative early on in the process, saying it would not be consistent with SMCRA regulations because it would significantly impact coal extraction activities, citing the following: “[OSM must]…assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being, is provided and strike a balance between protection of the environment and . . . the Nation’s need for coal as an essential source of energy.” (Enforcement, Environmental Impact Statement, 2007)