Court Vacates 2008 Rule Decreasing Mining Waste Proximity to Streams

On Feb. 21, a federal district court vacated a 2008 Department of the Interior rule decreasing the proximity to streams that mining waste could be dumped. The rule had also allowed companies to fill streams and conduct mitigation efforts offsite. The court’s decision was based on the fact that the Office of Surface Mining Reclamation and Enforcement did not consult with the U.S. Fish and Wildlife Service before issuing the rule, therefore violating the Endangered Species Act and constituting a substantive deficiency in the rulemaking process.

The court also said that vacating the 2008 rule would have limited disruptive consequences because most states have not implemented the rule due to pending lawsuits. The court’s ruling nullifies lawsuits by environmental groups challenging the rule. Most states are still following the 1983 version of the rule prohibiting mining waste within 100 feet of a stream. The Office of Surface Mining currently is working on a new stream protection rule, for which a notice of proposed rulemaking is expected in August.

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