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Interior finalizes contested Stream Protection Rule ahead of Trump taking office

In the face of strong opposition from the coal industry and its allies in Congress, the U.S. Department of the Interior on Dec. 19 issued a final version of the contested Stream Protection Rule.

"The responsible rule released today represents a modern and balanced approach to meeting the nation's energy needs," said U.S. Secretary of the Interior Sally Jewell. "Regulations need to keep pace with modern mining practices, so we worked closely with many stakeholders to craft a plan that protects water quality, supports economic opportunities, safeguards our environment and makes coalfield communities more resilient for a diversified economic future."

The new regulation revises U.S. Office of Surface Mining Reclamation and Enforcement rules to define "material damage to the hydrologic balance outside the permit area," and also requires each mining permit to pinpoint which mining-related impacts on groundwater and surface water would reach that level of damage. The rule also requires the collection of pre-mining environmental quality data and adjusts monitoring requirements for keeping an eye on water quality trends.

Interior previously said that when finalized, the rule "will minimize impacts to surface water and groundwater from coal mining and protect about 6,000 miles of streams nationwide over a period of 21 years, preserving community health and economic opportunities while meeting the nation's energy needs."

However, the rule has been a frequent target of the coal industry, with Murray Energy Corp. calling it "illegal and destructive."

"[T]he [Stream Protection Rule] will destroy longwall mining in the United States, cause energy prices to skyrocket, and devastate the jobs and livelihoods of millions of Americans who depend on the economic activity that coal mining generates," Murray Energy stated in public comment submitted on the rule. "Clearly, the [Stream Protection Rule] has no basis in law, is the product of a shamefully biased administrative process, and is driven by an ideological agenda that seeks to regulate coal mining out of existence."

Although it has been finalized, the rule can still be challenged by members of Congress in the coming weeks, with GOP lawmakers employing a little-used law called the Congressional Review Act, or CRA, to keep so-called "midnight rules" from taking effect.

Earlier this month, U.S. Sen. Mike Lee, R-Utah cited the Stream Protection Rule as one of several regulations that are "ripe for review" under the CRA. It is unlikely that Republicans in Congress will face a challenge in obstructing the rule, as the CRA only requires 51 votes in the Senate to avoid a filibuster.

However, enacting disapproval resolutions have proven difficult. In the CRA's 20-year history, the law has only been used once to successfully undo an ergonomics regulation finalized late in Bill Clinton's presidency.

If opponents fail to push back on the rule through the CRA, they will then look to the incoming Trump administration to assist in the restructuring of the rule through agency action under new leadership. The president-elect's current choice to head the Interior Department under his administration is Rep. Ryan Zinke, R-Mont., who has been a strong advocate for coal during his time in Congress.