October 26, 2015

Joseph G. Pizarchik, Director
Office of Surface Mining Reclamation and Enforcement
Administrative Record, Room 252 SIB
1951 Constitution Avenue NW.
Washington, DC 20240

Via regulations.gov

Re: Stream Protection Rule, Docket ID: OSM-2010-0018

Dear Mr. Pizarchik:

The Resource Development Council for Alaska, Inc. (RDC) is writing to comment on the Office of Surface Mining Reclamation and Enforcement (OSMRE) proposed Stream Protection Rule (SPR), Docket ID: OSM-2010-0018.

RDC is an Alaskan business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism and fisheries industries. RDC’s membership includes Alaska Native Corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

RDC urges OSMRE to abandon this rulemaking. We believe the rule is not attainable, especially in Alaska, and is an unacceptable effort that would further hinder natural resource development in our state. If the process is not abandoned, at the least we encourage OSMRE to start over, and allow participation in the process by stakeholders, including states. We also press to have ample public and stakeholder review time.

Inadequate Public Comment Period

The agency has proposed a 91-day comment period for a rule that took six years to develop. This comment period is completely inadequate for the 3,000-page proposed SPR, Draft Environmental Impact Statement (DEIS), and Regulatory Impact Analysis (RIA). As a result, RDC is unable to provide a section-by-section analysis with suggested revisions and justifications. Instead, RDC will provide only broad comments.

The proposed SPR, DEIS, and RIA have far too many deficiencies to be revised, and therefore, the rule should be abandoned.

Overreach of Proposed Rule

In the case of mining in Alaska, there are more than 60 major permits and many more from local, state, and federal agencies that must be successfully obtained. Since 1983, coal mining has even more extensive regulations under Alaska Surface Coal Mining Control and Reclamation Act (ASCMCRA), which has jurisdiction over all coal mining activities occurring within the state. It is inappropriate for OSMRE to insert itself into the state permitting process.

Moreover, such a significant rule should allow for the opportunity to receive and incorporate the valuable insight and experience of the primacy states and the best practices that they have developed and incorporated into their programs over the years. Better yet, many of the specifics in the rule (i.e. defining material damage via a single set of numeric criteria) should be left undefined and delegated to the individual local regulatory authority to define for their region.

In Alaska, as well as other coal-producing states, regulatory protections and inter-agency coordination are already in place, such as the Clean Water Act. RDC is concerned the proposed rule ignores these regulations and the permitting process. A particular example of federal overreach is the new rule grants the U.S. Fish & Wildlife Service essentially a veto authority over an approved state permit program.

OSMRE has not demonstrated that the SPR will in fact reflect the best available science or address any compelling need to improve environmental protection from mining operations conducted in compliance with the current rule. It is a rule in search of a problem.

Regulatory and Permitting Certainty

It is a policy of RDC to advocate for predictable, timely, and efficient state and federal permitting processes based on sound science and economic feasibility. The proposed SPR will not provide regulatory certainty to industry. In fact, the DEIS appears to contradict the SPR.  The DEIS seems to assume that only proposed mines that will result in permanent adverse impacts will not be permitted.  The SPR appears to preclude the permitting of mines even where there are temporary impacts.  Such discrepancies result in the agency potentially underestimating impacts in the DEIS that do not reflect the actual text of the SPR.

Another example of permitting uncertainty that is of concern to RDC and it membership is the permit nullification provisions that have been added to the regulations.  A company and project that has gone through a permit application, review and issuance process should be able to operate under permit coverage with clear certainty.  Adding the ability to retroactively nullify a permit post-process and mid-operation is absolutely unacceptable, if not unconstitutional.

The State of Alaska depends on the responsible development of natural resources on its lands to diversify and support its economy (Article VIII of the Alaska Constitution). It is not in the public interest, nor is it in the interest of Alaskans, for OSMRE to overstep its jurisdictional authority in local processes.

Comprehensive National Rule in Search of a Problem

The proposed rule is primarily focused on surface coal mining operations in Appalachia. Particularly, OSMRE’s proposed revisions of the definitions of “material damage to the hydrologic balance outside the permit area” and “approximate original contour” are inappropriate and blatant attempts at nationwide implementation of standards that are unique to different regions. The one-size-fits-all approach to material damage is inappropriate.

This rule does not present itself as an effort to protect streams, but instead a rule to regulate the coal industry out of business across the nation.

OSMRE itself has indicated the purpose of this process,

“On June 11, 2009, the Department of the Interior, the U.S. Environmental Protection Agency, and the U.S. Army Corps of Engineers entered into a Memorandum of Understanding (MOU) implementing an interagency action plan to reduce the harmful environmental consequences of surface coal mining operations in six states in central and northern Appalachia.

Unregulated coal mining in Appalachia and elsewhere in the nation’s coal fields has had devastating impacts on the environment, land use, and society as a whole. While SMCRA has made significant strides in regulating contemporary mining, an increasing number of studies have substantiated that adverse environmental impacts may continue in certain situations long after the completion of reclamation.”

Similar issues found in Appalachia do not exist Alaska, and this rule essentially ignores existing practices. In light of these statements, RDC fears this is a rule in search of a problem, and it is unnecessary and counterproductive.


RDC urges OSMRE to abandon this flawed rule. A one-size-fits-all approach does not work for Alaska, and only further chills the investment climate. Thank you for the opportunity to comment.


Resource Development Council