Today the U.S. Department of Interior announced that it will attempt to vacate the Bush administration's buffer zone rule promulgated on December 12, 2008 under the Surface Mining Control and Reclamation Act ("SMCRA"). This latest action by the Department of Interior is in response to a pending lawsuit challenging the Bush administration's rule.
"Unless this announcement is accompanied by a firm commitment to enforce the law as it applies to mountaintop removal and valley fills, it's meaningless," said Joan Mulhern, senior legislative counsel for Earthjustice. "Secretary Salazar's comments at the press conference lacked such a commitment; he made it sound as if this action would return the situation to the status quo before the Bush 11th hour change to the stream buffer zone rule. But the history of the stream buffer zone rule is that it hasn't been enforced. Announcements are fine but the deeds need to match the words. This gets us nowhere if the stream buffer zone rule is not enforced to prohibit mountaintop removal and valley fills.
"Interior Secretary Ken Salazar made it clear at his press conference that the 1983 rule would continue to be implemented as it has in the past -- meaning it will not be enforced against waste dumping. He stated that coal production would not be affected and that current coal operations would not be affected and was vague with respect to future actions," said Joe Lovett, Appalachian Center for the Economy and the Environment. "Therefore, Interior's action will not provide the protection essential for Appalachian mountain streams under the surface mining law or the Clean Water Act."
The stream buffer zone rule is a decades-old regulation that has prohibited surface and coal-mining activities from disturbing areas within 100 feet of streams. For years the agency has ignored the law and allowed thousands of miles of headwater and perennial streams in Appalachia to be permanently buried by coal companies under millions of tons of waste generated by mountaintop removal coal mining.
During the press conference, Interior Secretary Ken Salazar said the recent announcement will have "no impacts on existing mines." He also said that coal would remain an "important part of the energy portfolio."
Interior's decision to vacate the Bush rule is marred by the secrecy of the process that it used to reach its decision, and the lack of clarity about whether it will actually enforce the 1983 Buffer Zone rule. The 1983 rule will again be in effect if Interior succeeds in vacating the Bush version of the rule. But it is clear that, because of the lack of enforcement of this rule in past years, this action alone cannot provide the protection essential for Appalachian mountain streams.
"It is clear that the Department of Interior has not yet come to terms with the rule's effect, if actually enforced, on valley fills and other waste disposal practices," said Jennifer Chavez, attorney with Earthjustice. "As it moves forward under SMCRA, Interior must follow EPA's lead and all agencies of the new administration must act together to protect streams unconditionally from destruction due to mountaintop removal mining. Secretary Salazar made it appear at his press conference that the 1983 rule would continue to be implemented as it has in the past -- but the rule cannot be enforced unless streams are immediately and fully protected, which is Secretary Salazar's legal duty."
The Obama administration must now commit to enforcing the law by applying the buffer (and requiring delegated states to apply the buffer) to valley fills and other waste disposal operations associated with mountaintop removal mining. The value of today's action will be determined by whether it leads to real enforcement, or whether the rule will continue to exist as it has for years without actually protecting streams from destruction.
"This appears to mirror the scenario we had during the 1990s when OSM expressed the same Buffer Zone policies but stood aside while states refused to enforce them," said Cindy Rank of the West Virginia Highlands Conservancy. "Setting the clock back ten years sounded promising when EPA declared its intentions to review fill permits issued by the Army Corps. However, if this announcement from Interior means we're to return to the OSM so-called enforcement of 10 years ago, we're doomed to watch the destruction of hundreds more miles of streams."
For example, currently 4 permits that each violate the spirit and the letter of the 1983 Stream Buffer Zone rule are caught up in a Fourth Circuit court appeal. The first test of the Obama administration will be whether to vacate those permits for further review in light of today's action and OSM's recognition that a stream buffer zone is required. The next test will be whether the Obama administration will incorporate enforcement of this rule into EPA's pending review of nearly 100 other permits currently pending at the U.S. Army Corps of Engineers in Kentucky and West Virginia -- each of which is likely to violate the existing rule due to its lack of any stream buffer zone rule, and its use instead of valley fills to completely bury existing mountain streams.
"Those of us living near strip mine operations pray that President Obama will actually enforce the original intent of the Stream Buffer Zone law," said Judy Bonds of Coal River Mountain Watch. "The people deserve protection for the life-giving mountain streams we depend upon. We have suffered enough, we need real change, now. Mr. President, is this real change or does it just sound like change?"
"Today's action ultimately will be nothing more than a publicity stunt unless and until it is enforced by the agencies as the Clinton administration interpreted the rule," said Dianne Bady of the Ohio Valley Environmental Coalition. "Removing the bad Bush policy from the books is not enough, unfortunately. Real action is needed to enforce the rule and immediately protect America's mountain streams."
These groups are calling on the administration to issue a plain statement of its enforcement policy, and to begin implementing a policy to protect streams that are now facing an emergency due to the already issued or pending permits authorizing their destruction, in direct violation of the 1983 Stream Buffer Zone Rule and the Clean Water Act.