This is a text-only version of the document "OSM Leaked Proposed Stream Rule Changes - Ch 1 - 2011". To see the original version of the document click here.

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CHAPTER 1
PURPOSE OF AND NEED FOR THE FEDERAL ACTION Introduction The Office of Surface Mining Reclamation and Enforcement (OSMRE) is considering revising the Federal regulations implementing the Surface Mining Reclamation and Control Act of 1977 (SMCRA) (30 U.S.C. §§1201-1328) to improve the protection of streams from the adverse impacts of surface coal mining operations. Alternatives to the proposed revisions, including a no action alternative, are evaluated in this Environmental Impact Statement (EIS), which has been prepared in accordance with the National Environmental Policy Act and Council on Environmental Quality (CEQ) regulations. Background The Surface Mining Control and Reclamation Act (SMCRA) was enacted in 1977, in part, to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” 1 SMCRA requires the Secretary, acting through OSMRE, to promulgate rules and regulations necessary to carry out the purposes of the law. 2 OSMRE is also mindful of its mandate to “assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being is provided and [to] strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” 3 Specific to stream protection, SMCRA section 515(b)(10(B)(i) requires, among other things, that surface coal mining operations be conducted so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow or runoff outside the permit area. SMCRA section 515(b)(24) provides that to the extent possible using the best technology currently available, surface coal mining and reclamation operations must minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable. 4 Stream Buffer Zone Rules In implementing these provisions, OSMRE developed what became known as a stream buffer zone rule, which went through three iterations from 1977 to 1983. While historically, both OSMRE and the state regulatory authorities have applied the stream buffer zone rule as allowing the placement of excess spoil fills, refuse piles, slurry impoundments, and sedimentation ponds in intermittent and perennial streams, there is considerable controversy over the proper interpretation of the existing stream buffer zone rule as it applies to placement of fill material in

30 U.S.C. §1202(a) 30 U.S.C. §1211(c)(2) 3 30 U.S.C. §1202(f) 4 Sections 516(b)(9)(B) and (b)(11) contain similar requirements for operations with underground mine permits. In the remainder of this EIS and response to comments, we will refer only to the section 515 citations with the understanding that the discussion also refers to their section 516 counterparts, unless otherwise indicated.
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or near perennial and intermittent streams. Some interpretations of the existing rule are at odds with the underlying provisions of SMCRA.5 The interpretation of the 1983 stream buffer zone rule was challenged in the late 1990s and the early 2000s, following OSM’s first written interpretation of the rule in a document entitled “Summary Report-West Virginia Permit Review-Vandalia Resources, Inc. Permit No. S-200798.” Through this document, OSMRE stated that the stream buffer zone does not apply to the footprint of a fill placed in a perennial or intermittent stream as part of a surface coal mining operation. In July 1998, plaintiffs filed a lawsuit challenging this interpretation, and also contending that SMCRA and the Clean Water Act (CWA) were being improperly applied by the state regulatory authority, the West Virginia Department of Environmental Protection (WVDEP), and the Army Corps of Engineers (COE) respectively. Bragg v. Robertson, 72 F.Supp.2d 642 (S.D. W.V. 1999). With respect to the stream buffer zone rule, the plaintiffs in Bragg v. Robertson, argued that the rule allowed mining activities through or within the buffer zone for a perennial or intermittent stream only if the activities were minor incursions and that the rule forbade substantial segments of the stream to be buried underneath excess spoil fills or other miningrelated structures. The parties settled the CWA issues in December 1998, and in 1999, WVDEP entered into a consent decree following discussions with the plaintiffs regarding its implementation of the SMCRA program. On the remaining stream buffer zone issue, the U.S. District Court for the Southern District of West Virginia ruled in favor of the plaintiffs on October 20, 1999, holding that the stream buffer zone applied to all segments of a stream as a whole. On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed the district court’s opinion, citing lack of jurisdiction under the Eleventh Amendment to the U.S. Constitution and failed to reach the merits of the holding applicable to the stream buffer zone issue. Bragg v. West Virginia Coal Association, 248 F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002). In 2002, in Kentuckians for the Commonwealth, Inc. v. Rivenburgh, plaintiffs sued the COE alleging that the COE authorized the disposal of overburden waste from surface coal mining operations into streams in violation of Section 404 of the CWA. 204 F.Supp.2d 927 (S.D.W.V. 2002). Again, the U.S. District Court for the Southern District of West Virginia found in favor of the plaintiffs, stating “SMCRA contains no provision authorizing disposal of overburden waste in streams, a conclusion further supported by the buffer zone rule.” Id. at 942. In addition, the court held that the approval of waste disposal as fill material was beyond the authority of either the COE or the U.S. Environmental Protection Agency (EPA) and issued an injunction prohibiting the COE from issuing CWA section 404 permits in the COE’s Huntington district where the fill had no “constructive purpose.” Id. at 942-43. The government appealed this decision to the U.S. Court of Appeals for the Fourth Circuit, which rejected the district court’s interpretation, stating “SMCRA does not prohibit the discharge of surface coal mining excess spoil in waters of the United States.” Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 422 (4th Cir. 2003). The court further found
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A thorough history of the history and various iterations of the stream buffer zone rule can be found: ____________

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that regulating valley fills was consistent with both the regulation and the statute, rejected the district court's conclusion that the statute only authorized issuance of permits under CWA Section 404 for “beneficial” fills, and held that neither the statute nor the 1977 regulation prohibited the COE from authorizing valley fills for waste disposal purposes under CWA Section 404, while rejecting the injunction issued by the district court as overly broad. Mountaintop Removal and Valley Fill EIS and Bragg Settlement As a result of the settlement on the CWA issues in the Bragg decision, the agencies agreed to prepare an EIS on a proposal to consider developing agency policies, guidance, and coordinated agency decision-making processes to minimize the environmental effects of mountaintop removal and valley fills. As part of the EIS process, the agencies conducted or funded over thirty (30) studies documenting the impacts of mountaintop removal mining and excess spoil disposal in valley fills. As part of a fill inventory conducted for the EIS, the agencies found that while the average number of fills per year had actually decreased in the period from 1995 to 1998 compared to 1985 to 1989 and 1990 to 1994, the average size of the fills had increased by 72 percent with the average length of stream impacts increasing by over 224 percent. Another study found that almost 1200 miles of headwater streams were directly impacted by surface coal mining operation from 1992 to 2002, and that 724 miles of stream were covered by valley fills in the period from 1985 to 2001. The Final Programmatic EIS coming out of the Bragg litigation was completed in 2005 and is available at http://www.epa.gov/region3/mtntop/eis2005.htm. Other Agency Initiatives Even before the stream buffer zone rule litigation, in 1997, the U.S. Fish and Wildlife Service (FWS) undertook an informal inventory of stream impacts resulting from valley fills and sediment ponds in West Virginia, Kentucky, and Virginia. The next year, the EPA, COE, OSMRE, and FWS, after meeting to discuss mountaintop removal and valley fills at an EPA Region 3 forum called “Federal Regulatory Operations Group,” issued a statement of mutual intent agreeing to study impacts from and regulatory controls on mountaintop removal and valley fills. As part of routine oversight activities and separate from the mountaintop removal/valley fill EIS, OSMRE conducted studies in Kentucky, Virginia, and West Virginia to determine how the regulatory authorities were administering the SMCRA programs regarding AOC and postmining land use requirements. When permit files and reclaimed mines were examined, OSMRE found it difficult to distinguish between the reclamation configuration of mines that were not reclaimed to AOC and the reclamation configuration of mines that were reclaimed to AOC. There were no clear differences in the number and size of the excess spoil fills, and non-AOC mines should typically have larger or more numerous fills. OSMRE determined that typically, coal mine operators could have retained more spoil on mined-out areas under applicable AOC requirements than they were actually retaining. OSMRE also found that in many instances coal mine operators were overestimating the anticipated volume of excess spoil. As a result, OSMRE
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concluded that coal companies were designing fills larger than necessary to accommodate the anticipated excess spoil. Where fills are larger than needed, more land outside the coal extraction area is disturbed. OSMRE attributed these problems, in part, to lack of or inadequate regulatory guidance. As a result, OSMRE recommended that each regulatory authority work with the agency to develop enhanced guidance on material balance determinations, spoil management, and approximate original contour (AOC), which Kentucky, West Virginia, and Virginia did. 69 FR 1036, 1038 (January 7, 2004). 2004 and 2008 Stream Buffer Zone Rules Although Kentucky, Virginia, and West Virginia developed enhanced guidance to optimize fill placement, OSMRE determined that although most excess spoil is attributable to steep slope mining in Appalachia, excess spoil was also generated from surface mining activities throughout the country and thus a revision to the national regulatory program was necessary. In its notice to initiate a rulemaking regarding excess spoil, stream buffer zones, and diversions, OSMRE noted that existing regulations focused on the stability of excess spoil material and erosion control, but did not adequately address SMCRA’s requirement under section 515(b)(22)(I) to place all spoil material so that all other provisions of SMCRA are met, which would include hydrologic balance, water quality, revegetation, and other performance standards. 69 FR 1036, 1038 (January 7, 2004). Therefore, OSMRE sought to undertake this rulemaking to ensure the minimization of the volume of excess spoil and the effects to the hydrologic balance, fish, wildlife, and other environmental resources. Id. Taking these considerations into account, OSMRE published a proposed “excess spoil/stream buffer zone” rule in the Federal Register on January 7, 2004. 69 FR 1036. In the same notice, OSMRE also announced the availability of the draft environmental impact assessment for the proposed rule, which concluded preliminarily that the changes it was proposing would have no significant impacts on the human environment and that a finding of no significant impact (FONSI) would likely be prepared upon finalizing the environmental assessment. After receiving many comments on the draft environmental assessment and further consideration, OSMRE concluded that further analysis of the effects on the human environment was warranted. On June 16, 2005, OSMRE announced in the Federal Register (70 FR 35112) that the agency would prepare an EIS to analyze the effects of the rulemaking initiative, and asked for the public’s suggestions on the issues and alternatives to be examined. Litigation Following a public comment and several public meetings, OSMRE announced the availability of the proposed excess spoil minimization-stream buffer zone rule and its associated draft EIS on August 24, 2007. On December 12, 2008, OSMRE published a final rule modifying the circumstances under which mining activities may be conducted in or near perennial or intermittent streams. The rule took effect on January 12, 2009 and was challenged by a total of nine organizations in two separate complaints filed on December 22, 2008 and January 12, 2009: Coal River Mountain Watch, et. al v. Salazar and National Parks Conservation Ass’n v. Salazar. A settlement agreement was signed by the parties on March 19, 2010, by which OSMRE agreed to use best efforts to sign a proposed rule by February 28, 2011 and a final rule by June 29, 2012, and to consult with FWS pursuant to the Endangered Species Act (ESA), as appropriate prior to
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signing the final action. On April 2, 2010, the court granted the parties’ motion to hold the judicial proceedings in abeyance. Memorandum of Understanding – June 2009 On June 11, 2009, OSMRE, EPA, and the U.S. Army (representing the Corps of Engineers) entered into a Memorandum of Understanding (MOU). 6 One purpose of the MOU was to establish an Interagency Action Plan (IAP) to reduce the harmful environmental consequences of surface coal mining operations in the Appalachian region, while ensuring future mining remains consistent with federal law. The IAP’s elements include short term actions to minimize the adverse environmental effects of Appalachian surface coal mining; a commitment to undertake longer term regulatory actions related to Appalachian surface coal mining; coordinated reviews of permit applications under the Clean Water Act (CWA) and SMCRA; and a commitment to engage in robust public participation. Pursuant to the MOU, in the short term, OSMRE agreed to issue guidance clarifying application of the 1983 Stream Buffer Zone Rule, if the 2008 SBZ was vacated by the U.S. district court as requested by the Secretary of the Interior. OSMRE also agreed to reevaluate its oversight of state regulatory programs and to remove impediments to its ability to require correction of permit defects. In the long term, OSMRE agreed to consider revisions to key provisions of SMCRA, including the Stream Buffer Zone rule and Approximate Original Contour (AOC) requirements. Nationwide Permit 21 As part of the MOU, the COE agreed to issue a public notice to seek comment on the proposed action to modify Nationwide Permit 21 (NWP 21) to preclude its use in the Appalachian region, which it published in the Federal Register on July 15, 2009. NWP 21 authorizes the discharge of dredged or fill material from surface coal mining operations into waters of the United States and is issued under section 404(e) of the CWA. Section 404(e) authorizes the COE to issue general permits on a nationwide basis for categories of activities involving the discharge of dredged or fill material, such as surface coal mining, where the activities are similar in nature and cause only minimal adverse effect when performed separately and minimal cumulative effects on the environment. First issued in 1982, the current version of NWP 21 was issued on March 12, 2007 7 and authorizes “discharges of dredged or fill material into waters of the United States associated with surface coal mining and reclamation operations provided the activities are already authorized, or are currently being processed as part of an integrated permit processing procedure, by the Department of Interior (DOI), Office of Surface Mining (OSM), or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977.” In lieu of issuing a general permit such as NWP 21, the COE is also authorized to issue individual permits under section 404(a) of the CWA for discharges of dredged or fill material that occur at “specified disposal sites.” Public notice and an opportunity for public hearings must be afforded prior to issuance of an individual permit under section 404(a), and the permit must comply with section 404(b)(1) guidelines.
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The Memorandum can be viewed online at http://www.osmre.gov/resources/ref/mou/ascm061109.pdf . 72 Federal Register 11092 (March 12, 2007).

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After notice and over 23,000 public comments on the COE’s July 15, 2009, Federal Register notice, the COE issued notice on June 18, 2010 that effective immediately, it was suspending use of NWP 21 in six Appalachian states: Kentucky, Virginia, West Virginia, Pennsylvania, Ohio, and Tennessee. 8 The COE reasoned that: Using the individual permit process for those activities will provide more information for the Corps to consider in making decisions on these permit applications because of increased public involvement, such as the opportunity to comment on public notices for individual surface coal mining activities in Appalachia. This additional information could help improve not only the Corps analysis of potential individual and cumulative adverse effects of the proposed activity on the aquatic environment, but also on the potential adverse effects on other public interest review factors listed at 33 CFR 320.4(a)(1), such as conservation, aesthetics, economics, land use, recreation, fish and wildlife values, energy needs, and general considerations of property ownership, to the extent that those public interest factors are relevant to waters of the United States subject to CWA jurisdiction and within the Corps Federal control and responsibility.” 75 FR 34711, 34713 (June 18, 2010). As a result, surface mining operations in these states are required to obtain individual permits from the COE in order to discharge dredged or fill material from surface coal mining operations into waters of the United States. NWP 21 activities already approved prior to this notice continue to be authorized until the current NWP 21 expires on March 18, 2012, but these authorizations cannot be modified to allow additional discharges. NWP 21 is still in effect in the remainder of the country. Advance Notice of Proposed Rulemaking On November 30, 2009, OSMRE published an Advance Notice of Proposed Rulemaking (ANPR) 9 soliciting comments on ten potential rulemaking alternatives. The agency also invited the public to identify other rules that the OSMRE should consider revising, and it announced its intent to prepare an Environmental Impact Statement (EIS) to supplement the EIS that was prepared for the 2008 SBZ rule. OSMRE received approximately 32,750 comments during the 30-day comment period. After evaluating the comments, the agency determined that development of a comprehensive stream protection rule would be the most appropriate and effective method of achieving the goals set forth in SMCRA, as well as the MOU and ANPR. It also concluded that the new rule should not be limited to the Appalachian surface coal mining region, but be applicable nationwide. The broader scope of the new stream protection rule required that the agency prepare a new EIS rather than supplement the one prepared for the 2008 SBZ rule.

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75 Federal Register 34711 (June 18, 2010). 74 Federal Register 626640 (November 30, 2009).

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Notices of Intent – Stream Protection Rule On April 30, 2010, OSMRE published notice of its intent to prepare an EIS to analyze the effects of potential revisions to its rules and regulations under SMCRA to improve the protection of streams from the adverse impacts of surface coal mining operations. 10 The agency set forth eleven principal elements under consideration as part of its revisions to various SMCRA rules and regulations. Those principal elements are discussed in a subsequent section of this chapter. OSMRE received 25 comments during the 30-day comment period ending June 1, 2010. On June 18, 2010, OSMRE re-opened the scoping period in order to offer the public additional opportunities to provide comment on the scope of the EIS and revisions to the SMCRA rules and regulations. In addition to extending the scoping period by 45 days to July 30, 2010, the agency also announced its intent to host nine public scoping open houses in coal producing regions across the U.S. The Notice of Intent also expanded on the eleven principal elements by including possible alternatives for each element. The results of these scoping efforts are summarized in a subsequent section of this chapter. Principal Elements of the Proposed Action In its Notices of Intent for this EIS, OSMRE identified eleven principal elements guiding its revision of various provisions of the SMCRA rules and regulations. It requested the public’s comment on these elements and suggestions of other areas that should be addressed in order to protect streams from the adverse effects of surface coal mining operations nationwide. The principal elements initially set forth include: (1) Collection of Baseline Data; (2) Definition of Material Damage to Hydrologic Balance; (3) Mining Activities In or Near Streams (including mining through streams); (4) Additional Monitoring Requirements; (5) Corrective Action Thresholds; (6) Land Forming and Fill Optimization; (7) Approximate Original Contour Exceptions; (8) Reforestation; (9) Permit Coordination; (10) Financial Assurances for LongTerm Discharges of Pollutants; and (11) Stream Definitions. Each of these elements contributes to the protection of streams

[Possible addition to address expansion of scope – During the course of scoping, review of public comments, interagency coordination, and internal review, the agency has also determined that consideration should also be afforded other areas not raised in the Notices of Intent. These additional elements are discussed in this Draft EIS ….]

Need for the Federal Action The March 2010 settlement agreement requires OSMRE to use its best efforts to sign a proposed rule by February 2011 and a final rule by June 2012. The MOU with EPA and the Corps of Engineers sets forth specific areas for attention and action. The ANPR identified the need to expand the original scope of the effort to include specific provisions to protect streams nationwide, instead of focusing only on the Appalachian region. The Notices of Intent for this EIS refined the broad mandate and identified eleven principal elements of a proposed action and
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75 Federal Register 22723 (April 30, 2010)

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possible alternatives that would protect streams across the Nation against the adverse impacts of surface coal mining operations. Attempts to harmonize the various federal regulatory authorities under SMCRA and the Clean Water Act (CWA) have met with limited success. Although OSM, EPA, and USACE have attempted to coordinate requirements under various regulatory provisions, the focus and mandate of the various authorities have differed for each agency. As a result, state regulatory agencies, the regulated community, and the public have encountered different, inconsistent, or duplicative requirements and experienced different, inconsistent, or duplicative implementation. This results in environmental degradation, increases costs to the coal producing industry, and undermines the regulatory process. Need to Examine Rules and Regulations Against this backdrop, OSMRE is proposing revisions to its rules and regulations to address gaps and ambiguities that weaken the agency’s ability to accomplish its mission of protecting society and the environment from the adverse effects of surface coal mining operations. It is necessary, therefore, that the agency examines several provisions of its rules and regulations to ensure they protect the Nation’s streams from the adverse effects of surface coal mining operations. Need to Provide Clarification or Definitions Some current rules and regulations have been subject to uneven interpretation and implementation by the regulated community, as well as by the state regulatory agencies charged with issuing and enforcing permits within their jurisdictions. As a result, surface coal mining activities in one state may not provide the same degree of protection for environmental resources, in particular streams, as in others. Thus, there is a need to strengthen and clarify regulations related to permitting. Need to Extend Protections/Rules Nationwide SMCRA requires and the public expects that streams will be protected regardless of where they exist. Previous attention to this issue has focused on the central Appalachian region of the U.S., but OSMRE has determined that this focus is not fair, appropriate, or scientifically valid or consistent with the principles of SMCRA. Streams are ecologically significant regardless of the region where they are located. Therefore, there is a need to revise the regulations to minimize the adverse effects of surface coal mining operations on streams. Need to Provide Consistency/Enforceability Based on Science As the federal agency responsible for SMCRA, OSMRE must ensure that its rules and regulations contribute to an overall regulatory environment that is scientifically valid, consistent, implementable, and enforceable. Purposes of the Federal Action Consistent with its commitments under the settlement agreement and the MOU, OSMRE published an ANPR seeking public comment on which regulations should be revised to accomplish the goals of the MOU. After evaluating the comments received, OSM concluded
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that there is substantial concern that the requirements of SMCRA related to stream protection are not being fully implemented throughout the country. Therefore, OSM determined that a holistic and nationwide approach to stream protection, involving revision of multiple permitting requirements and performance standards related to protection of the hydrologic balance, would be the most appropriate and effective method of achieving those goals. Consequently, a purpose of the proposed federal action is to comprehensively revise permitting requirements and performance standards related to protection of the hydrologic balance, consistent with SMCRA, in order to better protect the environment and the public in all areas of the country from the impacts of surface coal mining operations on hydrology, stream biota, and related resources. Although the MOU and many literature surveys focus on central Appalachia, the proposed federal action is not limited to that region, both to ensure a “level playing field” among states and coal mine operators and to protect important ecological values of streams nationwide, regardless of the region in which they are located. See, e.g., 30 U.S.C. 1201(g), 1202(a). Further, a related purpose of the proposed federal action is to revise permitting requirements and performance standards to more effectively implement SMCRA section 515(b)(24), which requires, subject to certain limitations, that surface coal mining and reclamation operations minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, and also requires those operations to “achieve enhancement of such resources where practicable.” In addition, it is a purpose of the proposed federal action to encourage, and when appropriate, to require the use of the best science and technology available in regulating surface coal mining and reclamation operations and in conducting the operations. Finally, it is a purpose of this proposed federal action to revise the relevant regulatory provisions consistent with all relevant requirements and purposes of SMCRA, including the purpose to “assure that the coal supply essential to the Nation's energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.” 30 U.S.C. 1202(f). Organization of This Document This chapter (Chapter 1) describes the purpose and need for the proposed Federal action and describes the background of events leading to the preparation of this DEIS. Also described are NEPA compliance initiatives and the process used to allow the public to voice their concerns and provide comments on the proposed action (scoping). A summary of comments received during scoping are also provided. Chapter 2 describes the alternatives that are examined in detail, including the No Action Alternative and the Preferred Alternative, and presents additional alternatives that were considered but not carried forward for detailed analyses. This chapter also describes the process used in arriving at the alternatives examined in this DEIS.
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In Chapter 3, the general environmental setting of the five regions where the bulk of future coal mining is anticipated in the United States is described. Those five regions are: Northern Rocky Mountains and Great Plains, Appalachian Basin, Colorado Plateau, Illinois Basin, and Gulf Coast. In Chapter 4, the environmental consequences of each of the alternatives are discussed. Chapter 5 contains the list of references cited. Chapter 6 is a list of preparers of this DEIS. Chapter 7 contains a glossary of terms used throughout this DEIS. NEPA Compliance Previous Environmental Impact Statements After the passage of SMCRA on August 3, 1977, the Secretary of the Interior, through OSM, began writing permanent program regulations. OSM prepared a programmatic environmental impact statement (OSM EIS-1) to analyze the environmental consequences of the permanent program regulations (30 CFR Part 700 et seq.). OSM completed and released OSM EIS-1 as a final EIS on January 1979, and the permanent program regulations were published as a final rule in the Federal Register on March 13, 1979. 11 After several years of implementing the permanent program regulations, and a series of legal challenges to specific regulations, OSM proposed a large number of changes to the permanent program regulations. To support these actions, OSM prepared a supplemental EIS to analyze their effects on the human environment. OSM finalized and released OSM EIS-1 Supplement in January 1983. The regulatory changes were published in the Federal Register in a series of final rule notices published on and subsequent to March 4, 1983. After publication of the 1979 programmatic EIS and the 1983 supplement, OSM relied on the comprehensive analyses contained in those documents, and focused subsequent NEPA compliance for individual rulemakings on the effects on the human environment from individual actions. Reliance in part on the analyses of one or more previously prepared broader EISs is encouraged under CEQ’s regulations implementing NEPA, and is referred to as “tiering” (40 CFR 1508.28). In this EIS, we are considering the effects on the human environment of alternatives for a Federal action that is only a very narrow component of a comprehensive Federal surface coal mining regulatory program. Where applicable and appropriate, we intend to rely on and refer specifically or in general to previous programmatic EISs: •
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U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement. Excess Spoil Minimization, Stream Buffer Zones, Proposed Revisions to the Permanent
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44 Federal Register 15313 (March 13, 1979).

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Program Regulations Implementing the Surface Mining Control and Reclamation Act of 1977 Concerning the Creation and Disposal of Excess Spoil and Coal Mine Waste and Stream Buffer Zones. Final Environmental Impact Statement OSM-EIS-34, Sept. 2008. • U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement. Permanent Regulatory Program Implementing Section 501(b) of the Surface Mining Control and Reclamation Act of 1977, Final Environmental Statement OSM-EIS-1, Jan. 1979. U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement. Supplement to Final Environmental Statement on Proposed Revisions to the Permanent Program Regulations Implementing Section 501(b) of the Surface Mining Control and Reclamation Act of 1977, Final Environmental Statement OSM-EIS-1: Supplement v.1. 1983.

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Other EISs were prepared by OSMRE or in cooperation with OSMRE. These documents may contain more current or specific information that is also relevant to the analysis or characterization of the environmental setting. This EIS may incorporate by reference relevant information or analysis, or refer the reader to specific or general sections of those documents when appropriate. The final statements and associated draft statements that are incorporated by reference into this document are listed below: • U.S. Department of the Interior, Bureau of Land Management, Wyoming State Office, North Jacob Ranch Coal Lease Application, Federal Coal Lease Application WYW1467444, Final Environmental Impact Statement, June 2001. U.S. Department of the Interior, Bureau of Land Management, Wyoming State Office, Pittsburgh and Midway Coal Company Coal Exchange Proposal, Final Environmental Impact Statement, July 2003. U.S. Department of the Interior, Bureau of Land Management, Wyoming State Office, South Powder River Basin Coal, Final Environmental Impact Statement, Dec. 2003. U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement (OSM). Comprehensive Impacts of Permit Decisions under Tennessee Federal Program. OSM-EIS-18, 1985. U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement. Valid Existing Rights: Proposed Revisions to Section 522(e) of the Surface Mining Control and Reclamation Act of 1977 and Proposed Rulemaking Clarifying the Applicability of Section 522(e) to Subsidence from Underground Mining, Final Environmental Impact Statement OSM-EIS-29. July 1999. U.S. Environmental Protection Agency, Mountaintop Mining/Valley Fills in Appalachia Draft Programmatic Environmental Impact Statement (MTM-VF DPEIS), EPA 9-03-R00013, EPA Region 3, June 2003.
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U.S. Environmental Protection Agency, Mountaintop Mining/Valley Fills in Appalachia Final Programmatic Environmental Impact Statement (MTM-VF FPEIS), EPA 9-03-R00013, EPA Region 3, October 2005.

NEPA compliance for 2004 stream buffer zone and excess spoil rulemaking Beginning in the spring of 2003, OSM initiated extensive outreach on the concept of revising regulations to address concerns regarding excess spoil generation, fill construction, and confusion regarding the stream buffer zone regulatory requirements. OSM published a proposed “excess spoil / stream buffer zone” rule in the Federal Register on January 7, 2004. 69 FR 1036. In the same notice, OSM also announced the availability of a draft environmental assessment for the proposed rule, which was prepared in accordance with NEPA to examine the environmental effects of rule and other alternatives. OSM concluded preliminarily that the changes it was proposing would have no significant impacts on the human environment and that a finding of no significant impact (FONSI) would likely be prepared upon finalizing of the environmental assessment. After receiving many comments on the draft environmental assessment and further consideration, OSM concluded that further analysis of the effects on the human environment was warranted. On June 16, 2005, OSM announced in the Federal Register [70 FR 35112] that the agency would prepare an environmental impact statement (EIS) to analyze the effects of the rulemaking initiative, and asked for the public’s suggestions on the issues and alternatives to be examined. Public Participation Public participation was actively sought in the development of this EIS. The first Notice of Intent for the EIS was published in the Federal Register dated April 30, 2010 (75 Federal Register 22723) and posted on OSMRE’s website. OSMRE invited comments and suggestions on the scope of the analysis, including the eleven principal elements of the proposed action. OSMRE received 25 written comments during this initial scoping period. On June 18, 2010, OSMRE expanded the scoping opportunities to offer nine public open houses in various coal producing regions of the U.S. with publication of a second Notice of Intent (75 Federal Register 34666). The Notice of Intent also expanded on the eleven principal elements by including possible alternatives for each element. During the additional 45-day public scoping period, OSMRE held open houses in Carbondale, IL; Evansville, IN; Birmingham, AL; Fairfield, TX; Hazard, KY; Beckley, WV; Morgantown, WV; Farmington, NM; and Gillette, WY. These nine sites cover 95% of the coal producing regions of the U.S. Almost 400 people attended the open houses and provided over 450 written and oral comments. In addition, another 23,000 comments were received at the email address set up for this EIS; _____ comments were received via surface and express mail; and ____ comments were received at the www.regulations.gov website.

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[PLACEHOLDER: TO BE WRITTEN AND REVISED AFTER THE DEIS AND PRIOR TO THE FEIS]

On ____________, OSMRE announced in the Federal Register the availability of the proposed stream protection rule and its associated draft EIS. Approximately _____ hardcopies and compact discs were mailed directly to government, libraries, special interest groups, and interested citizens. In addition, the draft EIS was made available over the Internet. Over _______ comments were received on the proposed rule and approximate ______ written comments were received on the draft EIS during the ___-day comment period. Additionally, on ___________, four public hearings in the following locations: __________________________________. OSMRE also held _____ public meetings: one on _________________ in _____________, and one on _____________, in ______________. Approximately, ______ people attended and _____ people spoke. Issues Raised During Scoping [TO BE WRITTEN AFTER COMPLETION OF THE SCOPING REPORT]

Scope of Analysis The OSMRE interdisciplinary team responsible for preparing this Draft EIS considered all reasonable alternatives within disciplines related to stream protection, mining, socioeconomic issues, and the potentially affected public, including the mining community. The team considered all the issues raised during scoping and evaluated whether an issue warranted a direct specific response, a broad response, or no response. The Draft EIS relies primarily on published and previously released information, including studies that were reports that were included in previous EISs. In preparing this document, OSMRE also considered a host of published relevant current research especially in the area of “stream buffer zones.” While no new studies will be conducted for this Draft EIS, more recent studies conducted since preparation of the 2008 EIS have been included. Updated factual information on the policies, guidance, and activities involving excess spoil fills and stream buffer zone incursions have been obtained from OSMRE field offices and state regulatory agencies. No additional on-the-ground studies were conducted in preparing this DEIS. Since this federal action has nationwide implications, we focused on the five most productive coal bearing regions of the United States. Consequently, the potential complexities of this EIS are enormous. Each coal bearing region has its own unique set of circumstances with regard to geology, hydrology, flora, fauna and geomorphology, among others. In addition the various mining scenarios that could play out in the differing regions are subject to variables that are difficult to quantify specifically. In some of these regions there is a wealth of specific data regarding the various impacts of mining as analyzed under the various alternatives reviewed, while in other regions such data may be of limited availability. OSM has attempted to utilize all available relevant data whenever possible, and to the extent feasible has extrapolated such data for the various alternatives as appropriate. Gathering and analyzing site-specific information
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nationwide on all aspects of the resources that could be affected by this Federal action would require an exorbitant amount of funding and an extended period of time, neither of which is available for this effort. No detailed attempt to assess the effects of banning surface mining was conducted because it would be inconsistent with the defined mission and goals of OSMRE and would not be within the scope of this EIS which is to enhance protection of stream systems within and adjacent to mining operations.

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