FEDERAL STREAM BUFFER ZONE RULE CHANGES ANNOUNCED

Earlier this week, the federal Office of Surface Mining (OSM) announced that it has delivered its final version of the Stream Buffer Zone (SBZ) Rule to the Government Printing Office for publication in the Federal Register. The announcement follows the federal Environmental Protection Agency’s formal concurrence with the proposed changes.  The revisions should be formally published in the Federal Register within the next two weeks.  The changes to the SBZ Rule have been widely misconstrued by the press and the anti-mining extremists in the proceeding weeks as OSM prepared to finalize the SBZ Rule changes. 

 

Recall that OSM proposed revising the SBZ Rule to clarify that excess overburden and coal refuse fill construction in streams is permissible under the Surface Mining Control & Reclamation Act (SMCRA) and its implementing regulations.  The revisions were motivated by the infamous “Haden Decision” of October 1999 in West Virginia where the SBZ rule was construed by the District Court to outlaw fill construction in intermittent and perennial streams.  Even though the Haden Decision was reversed on appeal, enough ambiguity surrounding the true intent of the SBZ Rule remained (perpetrated by the anti-mining extremist groups) leading the agency to seek the revisions.  The SBZ changes were originally proposed in 2004 and since that time OSM conducted, published for comment and finalized in September 2008 a full Environmental Impact Statement on the revisions. 

 

In addition to clarifying the intent of the SBZ Rule, the revisions also impose new regulatory standards that require mining operators to demonstrate that the amount of fill material placed in a stream has been minimized and that practicable alternatives to the placement of fill material in streams have been investigated.