Sally Jewell, 51st Secretary of the Interior

Last week the U.S. Senate approved Sally Jewell, the chief executive of the outdoor retailer REI, as the Secretary of the Department of the Interior. Jewell was confirmed after an 87-11 vote — Senate Minority Leader Mitch McConnell was the only Appalachian senator to vote against her confirmation.

The day before her confirmation, President Obama said that Jewell had an “appreciation for our nation’s tradition of protecting our public lands and heritage, and a keen understanding of what it means to be good stewards of our natural resources.” Likewise, Oregon Sen. Rob Wyden, who chairs of the Senate Energy and Natural Resources Committee, stood in support saying Jewell had the “right kind of leadership” to rise to the task of reconciling competing environmental and energy interests.

No matter where you stand, Jewell faces a daunting task considering the department’s duty to oversee more than 500 million acres of public lands including national parks used for recreation and energy development. And regardless of her bipartisan support, Jewell will face a cantankerous Congress whose polarization is without precedent.

The broadly defined department’s responsibilities range from the Bureau of Indian Affairs to the Bureau of Ocean Energy Management, Regulation and Enforcement. Also under the Interior’s purview — and of particular interest to Appalachian politicians — is the Office of Surface Mining Reclamation and Enforcement, which oversees regulation of mountaintop removal under the Surface Mine Control and Reclamation Act. Since the beginning of 2009, OSM has worked to rewrite the stream protection rule to protect waterways from valley fills, and the process has been challenged, delayed and slowed-down at every turn.

During her confirmation hearing before the Senate Energy and Natural Resources Committee in early March, West Virginia Sen. Joe Manchin oddly invoked the rule, asking Jewell how she would “define a stream.” In his words, a stream is “basically a flowing water stream. Twelve months a year, mostly a wet water stream that flows 12 months a year.”

If that circular definition seems meant to obscure, mission accomplished, Sen. Manchin. Here’s a clearer rundown of the differing interpretations of a stream and the role they play in OSM’s rulemaking:

According to the Office of Surface Mining, Reclamation, and Enforcement, a perennial stream is “a stream or part of a stream that flows continuously during all of the calendar year as a result of ground-water discharge of surface runoff” — an interpretation that is also commonly used by state regulators.

Manchin and the coal industry would prefer that perennial streams be the only interpretation of “stream” under the Surface Mining Control and Reclamation Act of 1977. But the law does not exclude intermittent or ephemeral streams, which carry water for most of the year, but not perennially. If OSMRE were to finalize a rule-making prohibiting the dumping of waste into streams according to Manchin’s narrow definition, mining companies would continue using valley fills to dump mountaintop removal waste, polluting ecosystems and communities.

During the 112th Congress, Republicans in the House of Representatives repeatedly tried to frame the rulemaking as a cornerstone of the perceived “war on coal,” including holding hearings focused on the rule and even launching an investigation into what the House Committee on Natural Resources called one of the administration’s “most covert but outrageous fronts in its war on coal.” What the investigation failed to mention is that a new rule was issued in late 2008 that removed many of the principal restrictions on dumping rock and debris from mountaintop removal mining into Appalachian waterways.

The 2008 rule change allows mine waste to be dumped within 100 feet of intermittent and perennial streams under certain conditions. The coal industry likes the current rule just fine and continues to claim that a rewrite would restrict production at surface mines and negatively impact employment. But for the rule to serve its purpose, a rewrite is in order.

The years it has taken to rewrite the rule will be wasted if the final rule is too weak to protect streams to begin with. Sen. Manchin took his opportunity to speak with the future Secretary of the Interior to let her know that coal mining waste belongs in his state’s streams. After all, in his words, the coal industry’s “biggest problem” is overregulation.

Her responsibilities may be far-reaching, but Sally Jewell was not appointed to be the coal industry’s problem solver, but rather to “protect America’s natural resources and heritage.” OSM’s role isn’t to look the other way when streams — perennial or otherwise — are being destroyed, it is to “ensure that coal mines are operated in a manner that protects citizens and the environment.”

Applachian Voices congratulates Secretary Jewell on her confirmation and we remain committed to pressuring the administration and the Office of Surface Mining to develop a strong Stream Protection Rule that will prohibit the dumping of mine waste into Appalachia’s waters.

Notwithstanding specious investigations and setbacks, OSM continues to work on the stream protection rule, which Director Joe Pizarchik recently said will be released in 2014.