After watching federal officials with the U.S. Department of the Interior unilaterally rewrite regulatory rules without state input in what was supposed to be a joint venture, West Virginia has joined with five other states to withdraw from a cooperative agreement they say the Interior Department has violated.
In 2010, the Interior Department’s Office of Surface Mining Reclamation and Enforcement entered into a memorandum of understanding with nine states under the National Environmental Policy Act.
The idea was for state agencies to work with the Interior Department’s surface mining office in the development of environmental impact statements as they relate to a new rule regarding surface coal mining. The participating states signed the memoranda as the Interior Department began to rewrite the Stream Buffer Zone Rule as a replacement for an older rule that dates back to 2008.
But instead of drawing on state expertise and welcoming state input to help craft an environmental impact statement in step with National Environmental Policy Act requirements, the Interior Department declined to provide its state counterparts with critical pieces of information and restricted the opportunity for comment and review.
That’s what state officials told the House Natural Resources Committee at a May 20 hearing on “State Perspectives on the Status of Cooperating Agencies for the Office of Surface Mining’s Stream Protection Rule.”
Shortly after the hearing, West Virginia announced it would withdraw from the memorandum, joining Alabama, Kentucky, New Mexico, Utah and Texas, all of whom withdrew earlier this year. Of the original signatories, only Indiana, Montana, Virginia and Wyoming remain, and Indiana also is said to be considering withdrawing.
In a press release, the West Virginia Department of Environmental Protection said the Interior Department had “substantially revised the draft EIS to include a range of alternatives beyond the original scope of examining the federal stream buffer zone rule. These revisions were made without meaningful input from the West Virginia DEP and other states that had agreed to participate as cooperating agencies in the drafting of the EIS … ”
In his congressional testimony, Russell Hunter, counsel to the West Virginia Department of Environmental Protection’s Division of Mining and Reclamation, said the Interior Department’s surface mining office “unilaterally developed the scope of the initial 2010 draft EIS” to the point where the new rule was expanded to include topics beyond the stream buffer zone.
These new topics included the definition of material damage to hydrologic balance, baseline date collection and analysis, and fish and wildlife protection and enhancement.
From West Virginia’s perspective, the Interior Department had transformed the stream buffer zone rulemaking process “into a rewrite of the permitting and performance standards established by Congress,” Hunter said in his testimony. He also said that “in what appeared to be a mockery of the process, the time periods allowed for review and comment by the CAs (cooperating agencies) were brief and impersonal … ”
Hunter also referenced a briefing by the Office of Surface Mining Reclamation and Enforcement held in Baltimore with the state cooperating agencies that were then still under the memorandum.
“This briefing can be characterized, at best, as a unilateral presentation, primarily of methodology of OSMRE’s views and determinations, rather than a solicitation of input from the remaining CAs in attendance.”
Randall Johnson, director of the Alabama Surface Mining Commission, and Gregory Baker, the permit review supervisor at the Virginia Department of Mines, Minerals and Energy, also used their opportunities to testify to challenge the office’s regulatory tactics and said their agencies were not given sufficient time to review the new stream protection rule.
“For years, states have been implementing stellar regulatory programs, including the protection of streams,” Baker said in testimony. “However, beginning in 2009, OSMRE embarked on an effort to impose a drastic change in state programs.” Up until now, OSMRE has not provided the states with reason for its revisions to the Stream Protection Rule, Baker added.
But Dustin White, a community organizer with the Ohio Valley Environmental Coalition, told members of the House committee that state agencies had failed to enforce certain environmental regulations leaving average citizens with no choice but to appeal to federal agencies for decisive action.
