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Harry Payne
Division of Regulatory Support
(202) 208-2895

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Stream Protection Rule

On February 16, 2017, President Donald J. Trump signed H.J. Res. 38, which disapproved the rule known as the Stream Protection Rule, published at 81 FR 93066-93445 (Dec. 20, 2016). The Congressional Review Act, 5 U.S.C. 801 et seq., states that “[a]ny rule that takes effect and later is made of no force or effect by enactment of a joint resolution under section 802 shall be treated as though such rule had never taken effect." 5 U.S.C. 801(f). Therefore, the regulations that are now in effect are the same as those that were in effect on January 18, 2017, which is the day before the Stream Protection Rule originally became effective.

OSMRE is in the process of developing a final rule for publication in the Federal Register to amend all the regulations altered by the Stream Protection Rule back to the form in which those regulations existed on January 18, 2017.

2016 Biological Opinion

The Endangered Species Act of 1973 (ESA) requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure their actions do not jeopardize the continued existence of an endangered or threatened species or adversely modify critical habitat. On December 16, 2016, under section 7 of the ESA, 16 U.S.C. 1536(a)(2), the Service issued a Programmatic Biological Opinion, resulting from consultation on OSMRE's implementation of Title V of SMCRA, based on the Stream Protection Rule. Additionally, OSMRE and the Service entered into a Memorandum of Understanding (MOU) to provide guidance on the appropriate procedures for OSMRE, State and Tribal RAs, and the Service to follow in connection with permitting decisions that may impact proposed, threatened, and endangered species and proposed and designated critical habitat.

Memorandum of Understanding

In conjunction with the signing of the 2016 Biological Opinion, the Office of Surface Mining Reclamation and Enforcement (OSMRE) and the U.S. Fish and Wildlife Service (Service) signed a Memorandum of Understanding on December 16, 2016. The purpose of the MOU between OSMRE and the Service is to improve interagency coordination and cooperation under the Service’s programmatic Biological and Conference Opinion (referred to as the “2016 programmatic Biological Opinion”) to ensure that proposed, threatened, and endangered species and proposed and designated critical habitat are adequately protected for all surface coal mining and reclamation operations and coal exploration conducted under the Surface Mining Control and Reclamation Act of 1977 (SMCRA), including initial permit issuance, permit renewals, and significant permit revisions.

The MOU addresses implementation of the 2016 programmatic Biological Opinion as of the signature date of the 2016 programmatic Biological Opinion and the MOU, regardless of whether or not OSMRE has approved a State’s or Tribe’s program under the SPR. The incidental take statement accompanying the 1996 Biological Opinion will remain valid for all existing surface coal mining and reclamation permits that complied with the terms and conditions of the 1996 Biological Opinion to obtain incidental take coverage prior to the effective date of the SPR.

Read the full text of the Memorandum of Understanding (MOU), (pdf 300 KB)

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Page Last Modified/Reviewed: 3/6/17

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