[Congressional Record Volume 163, Number 21 (Tuesday, February 7, 2017)]
[Extensions of Remarks]
[Page E153]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





    DISAPPROVING A RULE SUBMITTED BY THE DEPARTMENT OF THE INTERIOR

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                               speech of

                           HON. BILL JOHNSON

                                of ohio

                    in the house of representatives

                      Wednesday, February 1, 2017

  Mr. JOHNSON of Ohio. Mr. Speaker, the Resolution of Disapproval under 
the Congressional Review Act that we consider today, if enacted, would 
void the Stream Protection Rule (SPR). In light of an independent 
analysis of the potential impacts of the rule including the loss of at 
least one third of existing coal mining jobs, this resolution is 
absolutely critical for our Nation's coal miners, their communities, 
and the related industries that support and rely on coal mining.
  If enacted, the joint resolution disapproving the SPR would bar the 
Office of Surface Mining, Reclamation and Enforcement (OSM) from 
reissuing the rule in substantially the same form, or issue a new rule 
that is substantially the same as the SPR, unless specifically 
authorized by subsequently enacted legislation. The SPR represents a 
near-complete regulatory re-write by adding, amending or modifying 475 
different regulations under the Surface Mining Control and Reclamation 
Act (SMCRA) program. The unlawful and offending features of the rule 
include impermissibly duplicating and conflicting with other federal 
and state laws; diminishing the exclusive regulatory jurisdiction of 
States with approved programs under SMCRA; interfering with the primary 
governmental responsibility SMCRA delegates to States for developing, 
issuing and enforcing regulations for surface coal mining and 
reclamation operations within their borders; applying to underground 
mining operations standards and requirements intended for surface 
mining operations despite the distinct differences between surface and 
underground mining; and, requiring changes to approved state programs 
without a demonstration that the state program is no longer effective 
in meeting the purposes of SMCRA. Therefore, any rule which includes 
any of these components is substantially the same as the SPR for 
purposes of the Congressional Review Act.
  An example of impermissible duplication or conflict with other 
federal and state laws or the authorities of other agencies would be a 
recently completed biological opinion and memorandum of understanding 
(MOU) between OSM and the U.S. Fish and Wildlife Service, the SPR 
allows the U.S. Fish and Wildlife Service to effectively veto any SMCRA 
permit simply by withholding approval. Issuing SMCRA permits is the 
exclusive province of SMCRA regulatory authorities, which in most cases 
are the States with approved SMCRA programs. Nothing in SMCRA or the 
Endangered Species Act (ESA) gives the U.S. Fish and Wildlife Service 
the power to disapprove, veto, or otherwise withhold a SMCRA permit. 
Any rule subsequently promulgated by OSM which gives the U.S. Fish and 
Wildlife Service the authority to directly or indirectly disapprove 
SMCRA permits would be substantially the same as the SPR and therefore 
impermissible.
  There are many other provisions which overlap, duplicate, or conflict 
with the requirements of other state and federal laws, which is 
prohibited by Section 702 of SMCRA. For example, the SPR violates both 
the Clean Water Act (CWA) and SMCRA by claiming for OSM the authority 
not only to enforce the CWA, but to also superimpose regulations that 
duplicate, conflict with and override CWA programs. Similarly, OSM 
vastly expanded the applicability of the ESA by requiring states and 
operators to account for species proposed for listing as threatened or 
endangered, which runs counter to the intent of the ESA and would have 
circumvented the rulemaking process established in the Administrative 
Procedures Act. Such self-deputization and usurpation of authority is a 
cornerstone of the SPR and any future rulemaking by OSM which attempts 
to duplicate, usurp, conflict with, or otherwise overlap with the 
existing requirements of other state and federal laws and the 
authorities of other state and federal agencies would be substantially 
the same as the SPR.
  The SPR includes dozens of provisions which diminish the states' 
authority under SMCRA. Because of the wide diversity in physical 
conditions across the nation's coal fields, Congress expressly 
delegated to the states the authority for developing and tailoring 
SMCRA's requirements to those conditions. A good example of how the 
rule tramples the states' authority is its attempt to set a national 
definition for ``material damage to the hydrologic balance outside the 
permit area.'' With the diversity in physical conditions and hydrology 
across the states and even within a state, it defies commons sense to 
promulgate a federal definition. It also robs the states of their 
delegated authority to tailor their rules in a manner that is suitable 
for meeting that statutory objective. To make matters worse, the rule 
precludes states from making appropriate adjustments on how SMCRA 
objectives should be achieved for distinct types of operations such as 
surface or underground mines. The rule is replete with examples of the 
mindset that only Washington knows best. Ironically, it's the states 
that possess the vast experience of regulating 97 percent of the coal 
mines in this country since SMCRA was passed in 1977. A rule that 
attempts to repeat this ``one-size-fits-all'' model would be 
substantially the same as the SPR

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