Court Strikes Down Bush-era Water Rule for Coal Mines

By Molly Moore

In February, a U.S. district court struck down the 2008 Stream Buffer Zone Rule, which loosened stream protections near mountaintop removal mining sites, declaring it violated the Endangered Species Act.

Senior Judge Barbara Rothstein wrote that the Office of Surface Mining Reclamation and Enforcement wrongfully proceeded with the environmentally harmful rule even when faced with clear evidence that mining operations near streams endanger sensitive wildlife and water resources.

Rothstein’s decision restores the 1983 Reagan administration rule which had established a more environmentally sound buffer zone around waterways to prevent debris and rubble from coal mining operations from burying streams. The 2008 version signed by President George Bush overwrote the 1983 rule and minimized those protections.

The National Mining Association, which intervened in the case, has not announced whether they will appeal Rothstein’s decision.

The decision will likely not have much immediate impact in Kentucky, Virginia or West Virginia, as the 2008 rule was not enforced in states that manage their own surface mining oversight.

A bill passed by the House of Representatives in March, H.R. 2824, would override the recent court decision and require that all states enforce the 2008 rule. It would also stop the Office of Surface Mining Reclamation and Enforcement from issuing an updated rule called the Stream Protection Rule, which the agency says will reflect updated science and technology and could be a “more protective regulatory strategy.”

The bill is unlikely to be considered in the Senate, and White House officials are prepared to recommend a presidential veto, stating that the proposed legislation “does not adequately address the community, environmental, and health impacts of strip mining.”

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