June 2, 2026 - Below is a message from Jason Bostic, Vice President, West Virginia Coal Association regarding Adverse Court Decision: SMCRA BiOp / ESA Consultation / State Issued Mining Permits:

Here is a copy of an adverse decision issued last Friday by the U.S. District Court for the District of Columbia in a challenge to the 2020 programmatic Biological Opinion (BiOp) https://www.osmre.gov/sites/default/files/2022-01/Final-BiOp-OSMRE-SMCRA-Title-V-Regulatory-Program-101620.pdf issued by the U.S. Fish & Wildlife Service (F&WS) on the federal Office of Surface Mining’s (OSM) regulatory program. 

The D.C. District invalidated the BiOp and its accompanying Incidental Take Statement (ITS) as they are relied on by OSM to facilitate Endangered Species Act (ESA) consultation and compliance in delegated state primacy programs.  While the original case referenced only alleged impacts to crayfish species in West Virginia, Virginia and Kentucky, the decision invalidates use of the BiOp in any primacy state.   

The decision does not impact SMCRA-ESA consultation in non-primacy programs, since OSM uses the “formal” ESA Section 7 consultation process as a direct federal “action agency.” 

Specifically, the court found the ITS does not contain “clear and enforceable” incidental take limits or identify specific “reasonable and prudent measures” to minimize impacts to listed species.  The attached decision also found the technical assistance process (Appendix A to the 2020 BiOp https://www.osmre.gov/sites/default/files/inline-files/FY21_Q1_BiOp_Appendix_A.pdf)  and the dispute resolution process (Appendix B to the 2020 BiOp https://www.osmre.gov/sites/default/files/inline-files/10%2016%2020%20Appendix%20B_Elevation%20Document.pdf) “less protective than ESA Section 7 consultation” because the process  leaves the scope of information to be provided to the F&WS for each permit to the  State permitting agency and “takes key responsibilities assigned to the F&WS (like conducting effects analyses and making a jeopardy determination) and delegates them to state regulatory authorities to conduct in the first instance.”

The 2020 BiOp and its supporting documents were issued by OSM and the F&WS to replace a similar regulatory document released concurrently with OSM’s Stream Protection Rule (SPR) in 2016.  The SPR voided the 1996 programmatic BiOp on delegated state mining regulatory programs and replaced it with a BiOp centered on the SPR revisions.  When the SPR was nullified through the Congressional Review Act in 2017, the SPR BiOp was annulled along with the SMCRA regulatory revisions.  In 2017, OSM requested reinitiation of consultation with the F&WS to replace the 1996 and 2016 BiOps. 

The attached decision relies heavily on another recent decision (May 27) from the D.C. District Court of Appeals related to delegation of the Corps’ Clean Water Act Section 404 permitting program to the State of Florida https://media.cadc.uscourts.gov/opinions/docs/2026/03/24-5101-2165874.pdf .  In that case, the Court invalidated the Federal Environmental Protection Agency’s (EPA) approval of the state 404 program after determining that a BiOp and ITS issued by the F&WS failed to comply with the ESA.  Like OSM’s SMCRA BiOp, EPA conducted a programmatic consultation with F&WS regarding the proposed state assumption of the 404 program.  The F&WS published a BiOp determining that EPA’s approval of the Florida program would not jeopardize protected species. But it also determined that at the programmatic stage it was not feasible to conduct meaningful site- and species-specific effects analysis. Instead, it relied on a “technical assistance” and coordination process in which Florida would undertake primary responsibility for reviewing and approving 404 permits with advice and assistance from the F&WS.  The attached decision on the SMCRA BiOp adopts most of the Florida decision’s reasoning and conclusions. 

The decision has serious implications for the review and approval of state-issued mining permits by the West Virginia Department of Environmental Protection (WV DEP), appearing to leave “formal” consultation (ESA Section 7 or Section 10 since WV DEP is not a federal “action agency” under the ESA) as the only option in the short term to receive ESA sign-off. 

We are having discussions with WV DEP, OSM, F&WS and the Interior Department regarding this issue and will update the membership as appropriate.  We will likely convene a virtual membership meeting to discuss the decision and provide an update on our discussions with the agencies.   

Should you have any questions, please phone 304-342-4153 or e-mail JBostic@wvcoal.com.