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Stream Buffer Zone Rule
Obama Administration acts to improve stream rule
In April 2009, Secretary of Interior Salazar sought to vacate the Bush Administration's buffer rule, based on SELC's claim under the Endangered Species Act. However, the federal judge in the case rejected the Secretary's request, and said the federal government must go through a formal process to introduce and pass a new rule. The OSM (under Salazar) subsequently has said it will issue a draft rule sometime in 2010.
SELC's lawsuit remains pending in U.S. District Court in Washington D.C. as we continue to urge the government to act swiftly to adopt strong requirements that will provide long-overdue protection for the streams and aquatic habitat of the central Appalachian region.
Case Summary
Rare Rivers Run Through the Coalfields
The rivers and streams that flow through the coalfields of Virginia and Tennessee are among the most biologically important waterways in America, and the world. But as they are buried under waste rock and rubble from mountaintop removal and other surface coal mines, aquatic species are being pushed to the brink of extinction, and the water quality is suffering.
Today, dozens of native fish and mussel species are disappearing from three of these vital watersheds: the Clinch, Powell, and Big South Fork of the Cumberland. These species are considered to be key indicators of water quality – their decline signals big trouble in the watersheds that communities rely on for drinking water, commerce, recreation and overall quality of life.
Stream Protection Rule Fails
The “stream buffer zone” rule, adopted in 1983, required coal companies to keep operations 100 feet away from streams, and if they could not, then to minimize damage. As an environmental safety net, this rule has been a tragic failure. At least 1,500 stream miles in four Appalachian states, including Tennessee and Virginia, have been damaged or completely destroyed by mining. Recent studies document significant declines of native fish and mussel species in stretches of the Clinch, Powell and Big South Fork closest to active coal mines, and link the declines to mining operations.
In late 2008, the Office of Surface Mining (OSM) issued a new stream buffer zone rule that removed virtually all restrictions on dumping rock, dirt, and debris from mountaintop removal mining into Appalachian waterways, a practice called "valley fills."
SELC Takes Action
SELC sued OSM in January 2009, for failing to consult with the U.S. Fish and Wildlife Service (FWS) for potential impacts on federally listed threatened and endangered species in the Appalachian streams, as required by the Endangered Species Act. The Environmental Protection Agency, which concurred with the new rule, was also named in the lawsuit.
In issuing the new buffer rule, OSM relied on a 1996 “biological opinion” which says that no coal mining operation anywhere in the U.S. would ever harm threatened or endangered species listed then, or in the future – as long as OSM complied with then existing regulations, including the former 1983 stream buffer zone rule. This biological opinion more or less excused OSM from consulting with the FWS on a case-by-case basis on each coal mine application. SELC had petitioned the Bush administration to overturn this illegal, “one-size-fits-all,” policy, but under the Bush Administration, our petition languished.
Our 2009 lawsuit claims that the OSM reliance on this “biological opinion” was illegal.