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October 23, 2020

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Good News for States and Surface Coal Mine Operators in Recent Department of Interior Announcement

On April 13, the Acting Director of the U.S. Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSMRE) announced that OSMRE will be reinitiating formal programmatic consultation with the U.S. Fish & Wildlife Service, pursuant to Section 7(a)(2) of the Endangered Species Act (ESA) and 50 CFR § 402.16, with respect to OSMRE’s implementation of Title V of the Surface Mining Control and Reclamation Act ( SMCRA). Today’s action is an acknowledgment that the recent disapproval and nullification of OSMRE’s Stream Protection Rule (SPR) by recent operation of the Congressional Review Act also in turn, nullified both the Dec. 16, 2016, Programmatic Biological Opinion and Conference Opinion on the Office of Surface Mining Reclamation and Enforcement’s Regulatory Program as Modified by the Issuance and Implementation of the Final Regulation (2016 BiOp).

Given that it would have been unlawful for OSMRE to have allowed the 2016 BiOp to continue in place, OSMRE today withdrew the 2016 BiOp and advised States that they may continue to rely on the 1996 Biological Opinion and Conference Report (1996 BiOp) and the 1996 Incidental Take Statement (ITS) for the exemption of take. In addition, while the reinitiated consultation is underway, OSMRE has developed interim guidance for the state regulatory authorities to ensure that all appropriate regulations, the requirements from the 1996 BiOp, and the Terms and Conditions listed in the Incidental Take Statement associated with the 1996 BiOp are followed.

This is good news for the major western and midwestern coal-producing states and mine operators, as the 2016 BiOp explicitly superseded and replaced the previous Biological Opinion issued in 1996 that imposed significantly less onerous conditions on SMRCA permits and other actions relating to ESA compliance.

A GT Shareholder represents the State of North Dakota in its federal court challenge in to the OSMRE’s Stream Protection Rule. While that Rule was invalidated recently under the Congressional Review Act, a related action by the U.S. Fish & Wildlife Service would have effectively allowed the SPR to live on and greatly impair surface coal mining in states across the country. Today, DOI took steps to stop that result.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume VII, Number 104



About this Author

Paul Seby, Greenberg Traurig Law Firm, Denver, Environmental and Energy Law Attorney

Paul Seby is a leading practitioner in the Rocky Mountain region, with nearly 25 years' experience analyzing a myriad of environmental issues. He counsels public and private clients in the energy, mining, manufacturing, and service industries on how to navigate and successfully operate within the complex framework of state and federal environmental regulations and policies. Mr. Seby has vast experience prosecuting cases to enforce and overturn administrative agency regulations and decisions, and has defended clients in federal and state enforcement proceedings, in...