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National Parks Conservation Ass'n v. Jewell

ELR Citation: 44 ELR 20038
Nos. 09-00115, (D.D.C., 02/20/2014) (Rothstein, J.)

A district court vacated a 2008 rule issued by the Office of Surface Mining Reclamation and Enforcement (OSM) that governs the operation of coal mining activities near and through streams. The 2008 rule revised a 1983 rule, retaining the previous rule's stream buffer zone requirement, but establishing different criteria for obtaining a waiver of the requirement. In promulgating the 2008 rule, OSM determined that it would have no effect on listed species or critical habitat, and therefore did not initiate consultation with FWS. But OSM's failure to consult violated ESA §7(a)(2). Faced with clear evidence that habitats within stream buffer zones are home to threatened and endangered species and that mining operations affect the environment, water quality, and all living biota, OSM's determination that the revisions to the stream protection rule encompassed by the 2008 rule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion. Rather, the 2008 rule "may affect" threatened and endangered species and critical habitat. As such, OSM was required to initiate consultation. In addition, OSM's reliance on a 1996 biological opinion to reach its "no effect" conclusion was arbitrary and capricious. FWS' "no jeopardy" conclusion in the 1996 biological opinion was reached after reviewing SMCRA and its implementing regulations. At that time, SMCRA's implementing regulations included the 1983 stream buffer zone rule. But the 2008 rule changes that 1983 rule, and therefore changes one of the grounds on which the 1996 biological opinion's "no jeopardy" conclusion is based. Furthermore, the 1996 biological opinion did not consider new information on the impacts of coal mining on streams and aquatic life that post-1996 scientific research revealed. OSM’s reliance on the 1996 biological opinion to avoid consultation was therefore arbitrary and capricious, and the court vacated the rule.