Endangered Species Draft Vetted for Stream Rule Clues

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By Rachel Leven

Nov. 2— An Interior Department draft memorandum aimed at improving protections for endangered species and critical habitats in coal mining permits is drawing general support from state mining regulators, strong opposition from mining companies and a dismissive attitude from environmentalists.

But some parties who spoke with Bloomberg BNA questioned if the draft, which would remain in place until the agency's stream protection rule is made final, will have an even broader significance, namely, whether it foreshadows decisions Interior will make about endangered species consultation requirements in that rule.

“[If] we can reach an understanding about these time limitations for review, it will hopefully carry through to the stream protection rule,” Greg Conrad, executive director for the Interstate Mining Compact Commission, said of a part of the draft memorandum that is important to states. He was referring to the stream protection rule, proposed by the Interior Office of Surface Mining Reclamation and Enforcement in July.

In 2014, a federal court ruled that a 1996 biological opinion stating surface mining regulations are generally protective of endangered species relied on outdated science. It vacated the 2008 stream buffer zone rule because it relied on the biological opinion.

The draft memo, obtained by Bloomberg BNA, aims to improve execution of the 1996 opinion until the stream protection rule is finalized with an updated endangered species approach. With a new version of the rule in the works, interested parties are focusing on how the 1996 opinion will be altered or whether consultation will now be required for each permit.

States already have met with Interior officials on the draft memorandum, Conrad said. The mining regulators are expected to submit comments to the federal agency within 30 days, an Interior official previously told Bloomberg BNA (208 DEN A-17, 10/28/15).

Improve Coordination, Protections

The draft memorandum outlines how the Office of Surface Mining and the Interior's U.S. Fish and Wildlife Service will coordinate to improve protections of endangered species and critical habitats under the 1996 biological opinion. In most cases, states are delegated to run their own coal mining permit programs.

“When completed, this MOU will serve as a model for state regulatory agencies to use in streamlining the coordination process for the protection, conservation and enhancement of threatened and endangered species and associated critical habitat at coal mining sites,” Chris Holmes, a spokesman for the Office of Surface Mining, told Bloomberg BNA in an e-mail.

To states, the draft memorandum helps clarify the agencies’ role in the permitting process and applies some time limits on their involvement, Conrad said. These clarifications will help prevent delays or confusion in the decisionmaking process for permits, he said.

The memorandum delineates responsibilities and requirements from the 1996 opinion in four areas:

• how to coordinate in the development and approval of a permit,
• when and how a permit is elevated for further review,
• what the procedures are for reviewing or enforcing a permit after it has been approved, and
• how to set the stage for further collaboration and coordination between stakeholders.

 

Also included is a clause stating that no legal obligations or responsibilities are changed through the document, and that it is only intended “to improve internal management” of the Interior agencies.

Timing, Roles of Agencies

States discussed with Interior officials at a recent meeting the need for the draft to include more specific amounts of time for decisions to be laid out in the permitting process, Conrad said.

After all information needed for a permit closes, many states have a limited amount of time allowed for them to offer a final permit decision, Conrad said. Some of these timeframes are as short as 60 days following completion of the administrative record, which is why coordinating with the Fish and Wildlife Service throughout the process is so important, he said.

“This [memorandum] we believe will help facilitate that process,” Conrad said.

They also requested clarification regarding timing and authority when it comes to elevating permits for more thorough consultation, a step that doesn't happen often but adds significant time when it is added, Conrad said.

Overall, Conrad said Interior seemed open to the concerns raised at their recent meeting, and states are generally pleased with the memorandum.

Holmes, in the Office of Surface Mining, said “we look forward to continuing our dialogue with the states as we work to finalize this document.”

Groups Outside Consultation

The National Mining Association's view of the memorandum wasn't as rosy.

Luke Popovich, a spokesman for the mining group, said the draft memorandum takes steps that are under consideration in the stream protection rule, doesn't show a need for the change and adds burdens to states.

While it adds requirements for states, the draft cuts them out of the decisions they are making, Popovich said. It also adds paperwork for mining companies and increases enforcement and litigation potential, he said.

“It erodes the biological opinion that granted all stakeholders a good measure of certainty, creating uncertainty when there wasn't any,” Popovich said in an e-mail.

To environmental groups, the draft memorandum itself isn't offering needed changes.

Deborah Murray, senior attorney with the Southern Environmental Law Center, called the draft memorandum procedural—“a band-aid type approach that doesn't address the substance” of the “invalid” biological opinion it is premised on.

Draft as Indicator

The draft memorandum is important beyond just its temporary improvement of coordination under the biological opinion, though, Conrad said. It speaks directly to concerns discussed in the proposed stream protection rule, which aims to limit the mining of—and through—streams and the overall generation of mining waste (209 DEN A-14, 10/29/15).

One of state regulators' largest concerns in the stream protection proposal is, similarly, time limitations for involvement on permits, he said. Conrad said he hopes that the discussions and understanding states and Interior have had for this memorandum will carry through to the final rule.

There is still concern among states that Interior might instead require consultation with the Fish and Wildlife Service on each individual permit, Conrad said. This would shift proposed permits from presumed to be protective with an opportunity for the service to comment, instead to requiring individual review each time, and is a step Conrad said isn't a good idea.

On the other hand, that is precisely what SELC is hoping for: a switch to individual permit consultation. A biological opinion in this area is “ludicrous” because one can't make an opinion that these species are safe without any data or other information, Murray said.

“What we've heard on the ground for years is that the biological opinion has really tied the hands of Fish and Wildlife Service folks,” Murray said. “It really constricts consideration under the Endangered Species Act.”

Ultimate Direction Unclear

Murray said the draft environmental impact statement that was released alongside the stream protection proposal gave them reason to hope.

Within the draft analysis, the Interior says, “OSMRE [the Office of Surface Mining] is in the process of formal consultations with the U.S. FWS [U.S. Fish and Wildlife Service] on the proposed rule. As a result of early discussions with U.S. FWS, OSMRE has decided to initiate formal consultation on the current program at this time as well.”

This leaves other major questions for Murray and other environmental groups.

While the Interior Department commits to these formal consultations related to the current and proposed stream protection programs, the 1996 opinion that was ruled to be outdated applies to more than the stream protection rule—it applies to the entire coal program under the Surface Mining Control and Reclamation Act.

Since the court found this was outdated, it stands to reason, Murray said, that other decisions made by the Interior Department based on this biological opinion would be tossed out by the courts, too. Murray and other environmental groups in comments on the proposed stream protection rule said the Fish and Wildlife Service should be formally consulted on the whole coal program under the federal surface mining law and go to site-specific or individual permit consultation.

“So to me, that's the big question,” Murray said.

To contact the reporter on this story: Rachel Leven in Washington at rleven@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The draft memorandum is available at http://src.bna.com/Qd.