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You keep trying to shift the focus from whether the OP is accurate or whether it is a distortion of the situation, to a nonsense claim of "cherry picking" and an emotional appeal to hatred against "energy moguls" and their evil ways - things that have nothing to do with understanding the MOU or the actions of the Obama administration in the court case.
"It's just a common memo that comes from a meeting" you say? I'm sure that's why the head of the EPA, Interior Dept., and the ACE are the people to have signed it after months of discussions.
You ask "Do you even know what this memo is?"
Yes, I do, but obviously you don't. It puts in place goals and establishes a pecking order for control of issues related to regulation of mountaintop coal removal. The laws have already been passed and there is a degree of overlap in jurisdiction. This overlap matters little when (as during the Bush administration) the regulatory agencies have no interest in their oversight role, but it matters a lot when they do. Especially if practices have developed during the past that need to be changed.
The situation has two aspects, first the willingness of the executive to exercise regulatory oversight and second the ability of the executive to exercise oversight. In this issue (pollution of waterways) both aspects are in play. I believe that Obama has the willingness to tackle the issue, but you don't. It is pointless to argue that we have "proof" of this willingness one way or the other for there hasn't been enough time for a clear pattern to emerge.
What we can say, however, is whether the characterizations in this thread of the significance of the filing made by the Obama administration is "proof" going to that question of willingness. The answer is undoubtedly no, it isn't proof.
The court case addresses both aspects of regulation that I wrote of above. However, it doesn't clarify the jurisdictional issue nor does it negate the legal basis for the energy companies to expect a certain result from the bureaucracy when they file applications to operate within the laws that exist.
If we give Obama the benefit of the doubt and assume for the moment that he is willing to act as a responsible oversight authority, the next question becomes how is the system best structured to provide that oversight. That is a question that is going to have to be addressed whether it is by court mandate or by administrative (and possibly legislative) action. The MOU dramatically raises the precedence in this process of the EPA opinion. Although the ACE is the lead agency in the permitting, is a huge move to elevate the status of the EPA inputs to the process since the two agencies operate under totally different mandates. It also specifically addresses the court case in the OP and the memo in total is a complete refutation of the OP claim (and the echo chamber dittohead-style remarks in the rest of the thread) of the significance of the court filing. It clearly isn't an effort to conduct "business as usual" the filing is instead an assertion that the administration is intent on developing a functioning oversight regime and properly exercising its oversight authority.
MEMORANDUM OF UNDERSTANDING AMONG THE
U.S. DEPARTMENT OF THE ARMY,
U.S. DEPARTMENT OF THE INTERIOR,
AND U.S. ENVIRONMENTAL PROTECTION AGENCY
IMPLEMENTING THE INTERAGENCY ACTION PLAN ON APPALACHIAN
SURFACE COAL MINING1
JUNE 11, 2009
PREAMBLE
The mountains of Appalachia possess unique biological diversity, forests, and freshwater
streams that historically have sustained rich and vibrant American communities. These
mountains also contain some of the nation’s richest deposits of coal, which have been mined by
generations of Americans to provide heat and electricity to millions in the U.S. and around the
world. After generations of mining, however, the region’s most readily available coal resources
have diminished, and the remaining coal seams are less accessible to non-surface mining
methods.
In response, a surface mining technique commonly referred to as “mountaintop mining”2
has become increasingly prevalent in the Appalachian region. Although its scale and efficiency
has enabled the mining of once-inaccessible coal seams, this mining practice often stresses the
natural environment and impacts the health and welfare of surrounding human communities.
Streams once used for swimming, fishing, and drinking water have been adversely impacted, and
groundwater resources used for drinking water have been contaminated. Some forest lands that
sustain water quality and habitat and contribute to the Appalachian way of life have been
fragmented or lost. These negative impacts are likely to further increase as mines transition to
less accessible coal resources within already affected watersheds and communities.
With this Memorandum of Understanding (MOU), the Department of the Interior (DOI),
U.S. Environmental Protection Agency (EPA), and the U.S. Army Corps of Engineers (Corps)
are announcing this Interagency Action Plan (IAP) designed to significantly reduce the harmful
environmental consequences of Appalachian surface coal mining operations, while ensuring that
future mining remains consistent with federal law. This IAP includes a set of short-term actions
to be implemented in 2009 to existing policy and guidance, and a longer term process for
gathering public input, assessing the effectiveness of current policy, and developing regulatory
actions.
The Federal government has made a commitment to move America toward a 21st-century clean
energy economy based on the recognition that a sustainable economy and environment must
work hand in hand. Federal Agencies will work in coordination with appropriate regional, state,
and local entities to help diversify and strengthen the Appalachian regional economy and
promote the health and welfare of Appalachian communities. This interagency effort will have a
special focus on stimulating clean enterprise and green jobs development, encouraging better
coordination among existing federal efforts, and supporting innovative new ideas and initiatives.
Interagency Action Plan
I. COORDINATION ON REGULATORY PROGRAMS
This MOU formalizes the agencies’ IAP for coordinating the regulation of Appalachian
surface coal mining. The elements of the plan are:
A series of interim actions under existing authorities to minimize the adverse
environmental consequences of Appalachian surface coal mining;
A commitment by the agencies to investigate and, if appropriate, undertake longer
term regulatory actions related to Appalachian surface coal mining;
Coordinated environmental reviews of pending permit applications under the Clean
Water Act (CWA) and Surface Mining Control and Reclamation Act (SMCRA); and
A commitment to engage in robust public participation, through public comment
mechanisms and Appalachian public outreach events, helping to inform Federal,
State, and local decisions.
In addition to the steps taken above, the Federal government will help diversify and
strengthen the Appalachian regional economy. This effort will include the agencies to this
MOU, and other Federal agencies, as appropriate, and will work to focus clean energy
investments and create green jobs in Appalachia.
Coordination of interagency policy discussions and assessment of policy effectiveness will
be achieved in consultation with the Council on Environmental Quality.
II. SHORT-TERM ACTIONS TO MINIMIZE ENVIRONMENTAL HARM
The signatory agencies will take the following short-term actions under existing laws,
regulations, and other authorities to reduce the harmful environmental consequences of
Appalachian surface coal mining.
Before the end of 2009, the Corps and EPA will take the following steps:
Within 30 days of the date of this MOU, the Corps will issue a public notice pursuant
to 33 C.F.R. § 330.5 proposing to modify Nationwide Permit (NWP) 21 to preclude
its use to authorize the discharge of fill material into streams for surface coal mining
activities in the Appalachian region, and will seek public comment on the proposed
action.
EPA and the Corps, in coordination with DOI’s Fish and Wildlife Service (FWS),
will jointly develop guidance to strengthen the environmental review of proposed
surface coal mining projects in Appalachia under the CWA Section 404(b)(1)
Guidelines.
Recognizing that the regulation of surface coal mining extends beyond CWA Section
404, EPA will improve and strengthen oversight and review of water pollution
permits for discharges from valley fills under CWA Section 402, and of state water
quality certifications under CWA Section 401, by taking appropriate steps to assist
the States to strengthen state regulation, enforcement, and permitting of surface
mining operations under these programs.
The Corps and EPA, in coordination with FWS and consistent with the agencies’
regulations governing compensatory mitigation, will jointly issue guidance clarifying
how impacts to streams should be evaluated and how to evaluate proposed mitigation
projects to improve the ecological performance of such mitigation implemented to
compensate for losses of waters of the United States authorized by Section 404
permits.
EPA, in coordination with the Corps, will clarify the applicability of the CWA waste
treatment exemption for treatment facilities constructed in waters of the United States
in order to minimize the temporary impacts of mining operations on streams.
Before the end of 2009, DOI will take the following steps:
If the 2008 Stream Buffer Zone Rule is vacated by the U.S. District Court for the
District of Columbia in Coal River Mountain Watch et al v. Kempthorne, 1:08-cv-
02212-HHK C, as requested by the Secretary of the Interior on April 27, 2009, the
Office of Surface Mining Reclamation and Enforcement (OSM) will issue guidance
clarifying the application of the 1983 stream buffer zone provisions to further reduce
adverse stream impacts.
OSM will reevaluate and determine how it will more effectively conduct oversight of
State permitting, State enforcement, and regulatory activities under SMCRA.
OSM will remove impediments to its ability to require correction of permit defects in
SMCRA primacy states.
III. DEVELOPMENT OF LONGER TERM REGULATORY ACTIONS TO BETTER
MANAGE APPALACHIAN SURFACE COAL MINING
A. OBJECTIVES
The signatory agencies will review their existing regulatory authorities and
procedures to determine whether regulatory modifications should be proposed to
better protect the environment and public health from the impacts of Appalachian
surface coal mining. At a minimum, the agencies will consider:
Revisions to key provisions of current SMCRA regulations, including the
Stream Buffer Zone Rule and Approximate Original Contour (AOC)
requirements;
Eliminating use of Nationwide Permit 21 in connection with surface coal
mining in the Appalachian region when the Nationwide Permit Program is
reauthorized in 2012; and
Revisions to how surface coal mining activities are evaluated, authorized, and
regulated under the CWA.
B. PROCESS
The signatory agencies will create an interagency working group to coordinate the
development of short-term actions, longer term regulatory actions, and coordination
procedures for Appalachian surface coal mining. The group will ensure robust public
involvement in the development of any proposed actions or regulatory reforms.
For any proposed regulatory revision or other action under this MOU that is a major
federal action significantly affecting the quality of the human environment (and is an
action subject to NEPA), an Environmental Impact Statement (EIS) will be prepared
to inform the decision-making process. At an early stage in the interagency
coordination process, the working group will determine whether coordinating these
NEPA processes programmatically would more effectively guide regulatory
development and decision-making. The interagency group will coordinate with CEQ
regarding the implementation of the National Environmental Policy Act (NEPA) in
the development of regulatory reforms.
IV. INTERIM INTERAGENCY COORDINATION PROCEDURES
A. Clean Water Act
EPA and the Corps will begin immediately to implement enhanced coordination
procedures applicable to the Clean Water Act review of Section 404 permit
applications for Appalachian surface coal mining activities that have been submitted
prior to execution of this MOU. The goal of these procedures is to ensure more
timely, consistent, transparent, and environmentally effective review of permit
applications under existing law and regulations. The agencies are issuing these
enhanced joint procedures concurrently with this MOU. Also concurrently, EPA is
clarifying the factual considerations it is using to evaluate pending CWA permit
applications under the 404(b)(1) Guidelines.
Pending Clean Water Act Section 404 permit applications for Appalachian surface
coal mining activities will continue to be evaluated by the Corps and EPA on a case-
by-case basis. The agencies will focus their reviews of Appalachian surface coal
mining permit applications based on likely environmental impacts with the goal of
avoiding, minimizing, and mitigating such impacts to the extent practicable under the
CWA Section 404(b)(1) Guidelines and consistent with NEPA. This approach will
enable the continued permitting of environmentally responsible projects.
B. Surface Mining Control and Reclamation Act
During 2009, OSM will issue guidance concerning appropriate application of the
Stream Buffer Zone rule and other related rules and will ensure that states are
implementing their counterpart provisions and SMCRA regulatory programs
consistent with the guidance.
V. PUBLIC INVOLVEMENT
This IAP will be accompanied by robust public comment on its short- and longer term
actions. The agencies will hold public meetings in Appalachia during 2009 to gather on-the-
ground input and encourage ongoing local engagement in the environmental assessment and
decision-making process. Additional public participation will occur as agency actions move
forward.
VI. GENERAL
A. The policy and procedures contained within this MOU are intended solely as guidance
and do not create any rights, substantive or procedural, enforceable by any party. This MOU
does not constitute final agency action on any issue, and any actions contemplated by this
MOU will be carried out in an appropriate administrative process by the action agency in
accordance with all applicable laws and regulations.
B. This document does not, and is not intended to, impose any legally binding requirements
on Federal agencies, States, or the regulated public, and does not restrict the authority of the
employees of the signatory agencies to exercise their discretion in each case to make
regulatory decisions based on their judgment about the specific facts and application of
relevant statutes and regulations.
C. Nothing in this MOU is intended to diminish, modify, or otherwise affect statutory or
regulatory authorities of any of the signatory agencies. All formal guidance interpreting this
MOU and background materials upon which this MOU is based will be issued jointly by the
appropriate agencies.
D. Nothing in this MOU will be construed as indicating a financial commitment by DOI, the
Corps, EPA, or any cooperating State agency for the expenditure of funds except as
authorized in specific appropriations.
E. This MOU will take effect on the date shown above and will continue in effect until
permanent procedures are established, or unless earlier modified or revoked by agreement of
all signatory agencies. Modifications to this MOU may be made by mutual agreement of all
the signatory agencies. Modifications to the MOU must be made in writing.
Signed,
_________________________________ _________________________________
Lisa P. Jackson Ken Salazar
Administrator Secretary
U.S. Environmental Protection Agency U.S. Department of the Interior
_________________________________
Terrence “Rock” Salt
Acting Assistant Secretary
of the Army (Civil Works)
U.S. Department of the Army
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