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Proposed Rule

Stream Protection Rule

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Start Preamble Start Printed Page 44436

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSMRE or OSM), are proposing to revise our regulations, based on, among other things, advances in science, to improve the balance between environmental protection and the Nation's need for coal as a source of energy. This proposed rule would better protect streams, fish, wildlife, and related environmental values from the adverse impacts of surface coal mining operations and provide mine operators with a regulatory framework to avoid water pollution and the long-term costs associated with water treatment. We propose to revise our regulations to clearly define “material damage to the hydrologic balance outside the permit area” and require that each permit specify the point at which adverse mining-related impacts on groundwater and surface water would reach that level of damage; collect adequate premining data about the site of the proposed mining operation and adjacent areas to establish an adequate baseline for evaluation of the impacts of mining and the effectiveness of reclamation; adjust monitoring requirements to enable timely detection and correction of any adverse trends in the quality or quantity of surface water and groundwater or the biological condition of streams; ensure protection or restoration of perennial and intermittent streams and related resources; ensure that permittees and regulatory authorities make use of advances in science and technology; ensure that land disturbed by mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before mining; and update and codify the requirements and procedures for protection of threatened or endangered species and designated critical habitat. The proposed changes would apply to both surface mines and the surface effects of underground mines. The majority of the proposed revisions update our regulations to incorporate or reflect the best available science and experience gained over the last 30 years. Approximately thirty percent of the proposed rule consists of editorial revisions and organizational changes intended to improve consistency, clarity, accuracy, and ease of use.

DATES:

Electronic or written comments: We will accept electronic or written comments on the proposed rule, the draft environmental impact statement, and the draft regulatory impact analysis on or before September 25, 2015.

ADDRESSES:

You may submit comments by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. The Docket ID for the proposed rule is OSM-2010-0018, while the Docket ID for the draft environmental impact statement is OSM-2010-0021 and the docket ID for the draft regulatory impact analysis is OSM-2015-0002. Please follow the online instructions for submitting comments.

Mail/Hand-Delivery/Courier: Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution Avenue NW., Washington, DC 20240. Please include the appropriate Docket ID: OSM-2010-0018 for the proposed rule, OSM-2010-0021 for the draft environmental impact statement, or OSM-2015-0002 for the draft regulatory impact analysis.

If you wish to comment on the information collection aspects of this proposed rule, submit your comments to the Department of the Interior Desk Officer at OMB—OIRA, via email at OIRA_Submission@omb.eop.gov, or via facsimile at (202) 395-5806. Also, send a copy of your comments to John A. Trelease, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave. NW., Room 203 SIB, Washington, DC 20240, or via email at jtrelease@osmre.gov.

You may review the proposed rule, the draft environmental impact statement, and the draft regulatory impact analysis online at www.osmre.gov. You also may review these documents in person at the location listed below and at the addresses listed in Part XII under SUPPLEMENTARY INFORMATION. You may also review the information collection requests at http://www.reginfo.gov/​public/​do/​PRAMain.

Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 101 SIB, 1951 Constitution Avenue NW., Washington, DC 20240, 202-208-4264.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

For the proposed rule: Dennis G. Rice, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202-208-2829.

For the draft environmental impact statement: Robin T. Ferguson, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202-208-2802.

For the draft regulatory impact analysis: Mark Gehlhar, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202-208-2716.

For information collection matters: John A. Trelease, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202-208-2716.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Why are we proposing to revise our regulations?

III. What needs does this proposed rule address?

IV. What Clean Water Act programs protect streams?

V. What provisions of SMCRA provide legal authority for the proposed rule?

VI. What is the history of our regulation of coal mining in relation to buffer zones for streams?

VII. Why does the proposed rule include protective measures for ephemeral streams?

VIII. Overview and Tabular Summaries of Proposed Revisions and Organizational Changes

IX. How do we propose to revise specific provisions of our existing regulations?

A. Section 700.11(d): Termination and Reassertion of Jurisdiction

B. Section 701.5: Definitions

C. Part 773: Requirements for Permits and Permit Processing

1. Section 773.5: How must the regulatory authority coordinate the permitting process with requirements under other laws?

2. Section 773.7: How and when will the regulatory authority review and make a decision on a permit application?

3. Section 773.15: What findings must the regulatory authority make before approving a permit application?

4. Section 773.17: What conditions must the regulatory authority place on each permit issued?

D. Part 774: Revision; Renewal; Transfer, Assignment, or Sale of Permit Rights; Post-Permit Issuance RequirementsStart Printed Page 44437

1. Section 774.10: When must the regulatory authority review a permit?

2. Section 774.15: How may I renew a permit?

E. Part 777: General Content Requirements for Permit Applications

1. Section 777.11: What are the format and content requirements for permit applications?

2. Section 777.13: What requirements apply to the collection, analysis, and reporting of technical data and to the use of models?

3. Section 777.15: What information must my application include to be administratively complete?

F. Part 779: Surface Mining Permit Applications—Minimum Requirements for Information on Environmental Resources and Conditions

1. Section 779.1: What does this part do?

2. Section 779.2: What is the objective of this part?

3. Why are we proposing to remove existing 30 CFR 779.11 and 779.12?

4. Section 779.19: What information on vegetation must I include in my permit application?

5. Section 779.20: What information on fish and wildlife resources must I include in my permit application?

6. Section 779.21: What information on soils must I include in my permit application?

7. Section 779.22: What information on land use and productivity must I include in my permit application?

8. Section 779.24: What maps, plans, and cross-sections must I submit with my permit application?

G. Part 780: Surface Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plans

1. Section 780.1: What does this part do?

2. Section 780.2: What is the objective of this part?

3. Section 780.12: What information must the reclamation plan include?

4. Section 780.13: What additional maps and plans must I include in the reclamation plan?

5. Why are we proposing to remove existing 30 CFR 780.15?

6. Section 780.16: What must I include in the fish and wildlife protection and enhancement plan?

7. Section 780.19: What baseline information on hydrology, geology, and aquatic biology must I provide?

8. Section 780.20: How must I prepare the determination of the probable hydrologic consequences of my proposed operation (PHC determination)?

9. Section 780.21: What requirements apply to preparation and review of the cumulative hydrologic impact assessment (CHIA)?

10. Section 780.22: What information must I include in the hydrologic reclamation plan and what information must I provide on alternative water resources?

11. Section 780.23: What information must I include in plans for the monitoring of groundwater, surface water, and the biological condition of streams during and after mining?

12. Section 780.24: What requirements apply to the postmining land use?

13. Section 780.25: What information must I provide for siltation structures, impoundments, and refuse piles?

14. Section 780.28: What additional requirements apply to proposed activities in, through, or adjacent to streams?

15. Section 780.29: What information must I include in the surface-water runoff control plan?

16. Section 780.35: What information must I provide concerning the minimization and disposal of excess spoil?

17. Section 780.37: What information must I provide concerning access and haul roads?

H. Part 783: Underground Mining Permit Applications—Minimum Requirements for Information on Environmental Resources and Conditions

1. Section 783.24: What maps, plans, and cross-sections must I submit with my permit application?

I. Part 784: Underground Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plans

1. Section 784.11: What must I include in the general description of my proposed operation?

2. Section 784.13: What additional maps and plans must I include in the reclamation plan?

3. Section 784.19: What baseline information on hydrology, geology, and aquatic biology must I provide?

4. Section 784.20: How must I prepare the determination of the probable hydrologic consequences of my proposed operation (PHC determination)?

5. Section 784.21: What requirements apply to preparation and review of the cumulative hydrologic impact assessment (CHIA)?

6. Section 784.22: What information must I include in the hydrologic reclamation plan and what information must I provide on alternative water resources?

7. Section 784.23: What information must I include in my plans for the monitoring of groundwater, surface water, and the biological condition of streams during and after mining?

8. Section 784.24: What requirements apply to the postmining land use?

9. Why are we proposing to remove existing 30 CFR 784.26?

10. Section 784.26: What information must I provide if I plan to return coal processing waste to abandoned underground workings?

11. Section 784.28: What additional requirements apply to proposed surface activities in, through, or adjacent to streams?

12. Section 784.30: When must I prepare a subsidence control plan and what information must that plan include?

13. Section 784.35: What information must I provide concerning the minimization and disposal of excess spoil?

14. Why are we proposing to remove existing 30 CFR 784.200?

J. Part 785: Requirements for Permits for Special Categories of Mining

1. Section 785.14: What special provisions apply to proposed mountaintop removal mining operations?

2. Section 785.16: What special requirements apply to proposed variances from approximate original contour restoration requirements for steep-slope mining?

3. Section 785.25: What special provisions apply to proposed operations on lands eligible for remining?

K. Part 800: Bond, Financial Assurance, and Liability Insurance Requirements for Surface Coal Mining and Reclamation Operations

1. How do we propose to guarantee treatment of long-term discharges?

2. How do we propose to revise the definitions in section 800.5?

3. Section 800.9: What requirements apply to alternative bonding systems?

4. Section 800.11: When and how must I file a bond?

5. Section 800.12: What form of bond is acceptable?

6. Section 800.13: What is the liability period for a bond?

7. Section 800.14: How will the regulatory authority determine the amount of bond required?

8. Section 800.15: When must the regulatory authority adjust the bond amount and when may I request adjustment of the bond amount?

9. Section 800.16: What are the general terms and conditions of the bond?

10. Why are we proposing to remove existing 30 CFR 800.17?

11. Section 800.18: What special provisions apply to financial guarantees for treatment of long-term discharges?

12. Section 800.21: What additional requirements apply to collateral bonds?

13. Section 800.23: What additional requirements apply to self-bonds?

14. Section 800.30: When may I replace a bond or financial assurance instrument and when must I do so?

15. Section 800.40: How do I apply for release of all or part of a bond?

16. Section 800.41: How will the regulatory authority process my application for bond release?

17. Section 800.42: What are the criteria for bond release?

18. Section 800.43: When and how must the regulatory authority provide notification of its decision on a bond release application?

19. Section 800.44: Who may file an objection to a bond release application and how must the regulatory authority respond to an objection?

L. Part 816: Permanent Program Performance Standards—Surface Mining Activities

1. Section 816.1: What does this part do?

2. Section 816.2: What is the objective of this part?

3. Section 816.11: What signs and markers must I post?

4. Section 816.22: How must I handle topsoil, subsoil, and other plant growth media?

5. Section 816.34: How must I protect the hydrologic balance?Start Printed Page 44438

6. Section 816.35: How must I monitor groundwater?

7. Section 816.36: How must I monitor surface water?

8. Section 816.37: How must I monitor the biological condition of streams?

9. Section 816.38: How must I handle acid-forming and toxic-forming materials?

10. Section 816.40: What responsibility do I have to replace water supplies?

11. Section 816.41: Under what conditions may I discharge to an underground mine?

12. Section 816.42: What are my responsibilities to comply with water quality standards and effluent limitations?

13. Section 816.43: How must I construct and maintain diversions and other channels to convey water?

14. Section 816.45: What sediment control measures must I use?

15. Section 816.46: What requirements apply to siltation structures?

16. Section 816.47: What requirements apply to discharge structures for impoundments?

17. Section 816.49: What requirements apply to impoundments?

18. Section 816.57: What additional performance standards apply to activities in, through, or adjacent to a perennial or intermittent stream?

19. Section 816.71: How must I dispose of excess spoil?

20. Why are we proposing to remove the provisions for rock-core chimney drains in existing 30 CFR 816.72?

21. Why are we proposing to remove the provisions for durable rock fills in existing 30 CFR 816.73?

22. Section 816.74: What special requirements apply to the disposal of excess spoil on a preexisting bench?

23. Section 816.81: How must I dispose of coal mine waste?

24. Section 816.83: What special performance standards apply to coal mine waste refuse piles?

25. Section 816.84: What special requirements apply to coal mine waste impounding structures?

26. Section 816.95: How must I protect surface areas from wind and water erosion?

27. Section 816.97: How must I protect and enhance fish, wildlife, and related environmental values?

28. Section 816.99: What measures must I take to prevent and remediate landslides?

29. Section 816.100: What are the standards for keeping reclamation contemporaneous with mining?

30. Why are we proposing to remove existing 30 CFR 816.101?

31. Section 816.102: How must I backfill the mined area and configure the land surface?

32. Section 816.104: What special provisions for backfilling, grading, and surface configuration apply to sites with thin overburden?

33. Section 816.105: What special provisions for backfilling, grading, and surface configuration apply to sites with thick overburden?

34. Section 816.106: What special provisions for backfilling, grading, and surface configuration apply to previously mined areas with a preexisting highwall?

35. Section 816.107: What special provisions for backfilling, grading, and surface configuration apply to steep slopes?

36. Section 816.111: How must I revegetate the area disturbed by mining?

37. Why are we proposing to remove existing 30 CFR 816.113 and 816.114?

38. Section 816.115: How long am I responsible for revegetation after planting?

39. Section 816.116: What are the standards for determining the success of revegetation?

40. Section 816.133: What provisions concerning the postmining land use apply to my operation?

41. Why are we proposing to remove the interpretive rule in existing 30 CFR 816.200?

M. Part 817: Permanent Program Performance Standards—Underground Mining Activities

1. Section 817.11: What signs and markers must I post?

2. Section 817.34: How must I protect the hydrologic balance?

3. Section 817.40: What responsibility do I have to replace water supplies?

4. Section 817.44: What restrictions apply to gravity discharges from underground mines?

5. Section 817.57: What additional performance standards apply to surface activities conducted in, through, or adjacent to a perennial or intermittent stream?

6. Section 817.71: How must I dispose of excess spoil?

7. Section 817.102: How must I backfill surface excavations and grade and configure the land surface?

8. Section 817.121: What measures must I take to prevent, control, or correct damage resulting from subsidence?

9. Why are we proposing to remove the interpretive rules in existing 30 CFR 817.200?

N. Part 824: Special Permanent Program Performance Standards—Mountaintop Removal Mining Operations

O. Part 827: Special Permanent Program Performance Standards—Coal Preparation Plants Not Located Within the Permit Area of a Mine

X. What effect would this rule have in federal program states and on Indian lands?

XI. How would this rule affect state regulatory programs?

XII. How do I submit comments on the proposed rule?

XIII. Procedural Matters and Required Determinations

A. Regulatory Planning and Review (Executive Orders 12866 and 13563)

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act

D. Unfunded Mandates

E. Executive Order 12630—Takings

F. Executive Order 13132—Federalism

G. Executive Order 12988—Civil Justice Reform

H. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

I. Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

J. Paperwork Reduction Act

K. National Environmental Policy Act

L. Data Quality Act

M. 1 CFR part 51—Incorporation by reference

I. Executive Summary

Significant advances in scientific knowledge and mining and reclamation techniques have occurred in the more than 30 years that have elapsed since the enactment of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) [1] and the adoption of federal regulations implementing that law. The proposed rule seeks to acknowledge the advancements in science, technology, policy, and the law that impact coal communities and natural resources, based on our experience and engagement with state regulatory authorities, industry, non-governmental organizations, academia, citizens, and other stakeholders.

The primary purpose of this proposed rule is to reinforce the need to minimize the adverse impacts [2] of surface coal mining operations on surface water, groundwater, fish, wildlife, and related environmental values, with particular emphasis on protecting or restoring streams and aquatic ecosystems. The proposed rule, if adopted as final, also will enhance public health by reducing exposure to contaminants from coal mining in drinking water. The proposed rule has the following seven major elements:

  • First, the proposed rule defines the term “material damage to the hydrologic balance outside the permit area” and requires that each permit establish the point at which adverse mining-related impacts on groundwater and surface water reach an unacceptable level; i.e., the point at which adverse impacts from mining would cause material damage to the hydrologic balance outside the permit area.
  • Second, the proposed rule sets forth how to collect adequate premining data about the site of the proposed mining operation and adjacent areas to establish a comprehensive baseline that will Start Printed Page 44439facilitate evaluation of the effects of mining operations.
  • Third, the proposed rule outlines how to conduct effective, comprehensive monitoring of groundwater and surface water during and after both mining and reclamation and during the revegetation responsibility period to provide real-time information documenting mining-related changes in water quality and quantity. Similarly, the proposed rule addresses the need to require monitoring of the biological condition of streams during and after mining and reclamation to evaluate changes in aquatic life. Proper monitoring would enable timely detection of any adverse trends and allow timely implementation of any necessary corrective measures.
  • Fourth, the proposed rule promotes the protection or restoration of perennial and intermittent streams and related resources, especially the headwater streams that are critical to maintaining the ecological health and productivity of downstream waters.
  • Fifth, the proposed rule is intended to ensure that permittees and regulatory authorities make use of advances in information, technology, science, and methodologies related to surface and groundwater hydrology, surface-runoff management, stream restoration, soils, and revegetation, all of which relate directly or indirectly to protection of water resources.
  • Sixth, the proposed rule is intended to ensure that land disturbed by surface coal mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before mining. Soil characteristics and the degree and type of revegetation have a significant impact on surface-water runoff quantity and quality as well as on aquatic life and the terrestrial ecosystems dependent upon perennial and intermittent streams. The proposed rule also would require revegetation of reclaimed minesites with native species unless and until a conflicting postmining land use, such as intensive agriculture, is implemented.
  • Seventh, the proposed rule would update and codify requirements and procedures to protect threatened and endangered species and designated critical habitat under the Endangered Species Act of 1973.[3] It also would better explain how the fish and wildlife protection and enhancement provisions of SMCRA should be implemented.

This proposed rule would more completely implement SMCRA's permitting requirements and performance standards, provide regulatory clarity to operators and stakeholders while better achieving the purposes of SMCRA as set forth in section 102 of the Act.[4] In particular, the proposed rule would more completely realize the purposes in paragraphs (a), (c), (d), and (f) of that section, which include establishing a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations and assuring that surface coal mining operations are conducted in an environmentally protective manner and are not conducted where reclamation is not feasible. Furthermore, the proposed rule is intended to address recent court decisions, mitigate legal challenges, and strike the appropriate balance between environmental protection, agricultural productivity and the Nation's need for coal as an essential source of energy, while providing greater regulatory certainty to the mining industry.

Apart from the procedural determinations in Part XIII, this document does not discuss the benefits and costs of the proposed rule in detail. Please refer to the draft regulatory impact analysis for an in-depth analysis of projected benefits and costs of the proposed rule and other alternatives under consideration.

II. Why are we proposing to revise our regulations?

Our primary purpose in proposing this rule is to strike a better balance between “protection of the environment and agricultural productivity and the Nation's needs for coal as an essential source of energy.” [5] Specifically, the proposed rule is designed to minimize the adverse impacts of surface coal mining operations on surface water, groundwater, and site productivity, with particular emphasis on protecting or restoring streams, aquatic ecosystems, riparian habitats and corridors, native vegetation, and the ability of mined land to support the uses that it was capable of supporting before mining. Our proposed changes reflect our experience during the more than three decades since adoption of the existing regulations, as well as advances in scientific knowledge and mining and reclamation techniques during that time. The proposed rule would more completely implement sections 515(b)(24) and 516(b)(11) of SMCRA, which provide that, to the extent possible using the best technology currently available, surface coal mining and reclamation operations must be conducted to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values and to achieve enhancement of those resources where practicable.[6] It also would update our regulations concerning compliance with the Endangered Species Act of 1973.[7] In addition, we propose to revise and reorganize our regulations for clarity, to make them more user-friendly, to remove obsolete and redundant provisions, and to implement plain language principles.

Coal mining operations continue to have adverse impacts on streams, fish, and wildlife despite the enactment of SMCRA and the adoption of federal regulations implementing that law more than 30 years ago. Those impacts include loss of headwater streams, long-term degradation of water quality in streams downstream of a mine, displacement of pollution-sensitive species of fish and insects by pollution-tolerant species, fragmentation of large blocks of mature hardwood forests, replacement of native species by highly competitive non-native species that inhibit reestablishment of native plant communities, and compaction and improper construction of postmining soils that result in a reduction of site productivity and adverse impacts on watershed hydrology.

Impacts on Aquatic Ecology

Headwater streams consist of first-order through third-order streams [8] under the Strahler stream-order system, which is the generally-accepted geographical classification system for ranking streams by size.[9] Headwater streams are the small swales, creeks, and streams that connect to form larger streams and rivers. They trap floodwaters, recharge groundwater, remove pollution, provide fish and wildlife habitat, and sustain the health of downstream rivers, lakes, and bays. These streams support diverse biological communities of aquatic invertebrates, such as insects, and Start Printed Page 44440vertebrates, including fish and salamanders, that are often distinct from the species found further downstream. Headwater streams function as sources of sediment, water, nutrients, and organic matter for downstream systems. Riparian vegetation provides organic matter to headwater streams in the form of dropped leaves and other plant parts. This organic matter fuels the aquatic food web.[10] According to the U.S. Environmental Protection Agency (EPA), headwater streams that flow only seasonally or in response to precipitation events; i.e., intermittent and ephemeral streams, comprise approximately 53 percent of the total stream miles in the continental United States.[11]

Headwater streams are the streams most likely to be directly disturbed or impacted by coal mining activities. The EPA estimates that SMCRA permits in existence between 1992 and 2002 authorized the destruction of 1,208 miles of headwater streams.[12] This total included approximately 2 percent of the total stream miles and 4 percent of the first-order and second-order stream miles in the central Appalachian coalfields.[13]

Our proposed rule would address loss of stream miles in two ways. First, we propose to amend the standards governing excess spoil and coal mine waste to minimize both the generation of excess spoil and the placement of excess spoil and coal mine waste in perennial or intermittent streams. Second, we propose to adopt standards that would minimize mining through perennial and intermittent streams. When mining through a perennial or an intermittent stream does occur, our revised standards would require that the permittee restore both the hydrological form and the ecological function of the mined-through stream segment.

Midwestern studies of reconstructed stream segments demonstrate that restoration of hydrological form and ecological function after mining through a stream is technologically feasible and attainable. In Illinois, case studies documented that streams flowing through channels reconstructed after mining can approach the regional biological diversity found in streams in unmined watersheds in that region.[14] Another Illinois study focused on 25 miles of low-gradient perennial streams with moderately disturbed premining watersheds. Those stream segments were relocated in the 1980s to facilitate mining and then were restored in their approximate premining location, although two of the three streams were routed through permanent pit impoundments for part of their length. In general, the study found that the premining hydrological form and ecological function of the streams have been successfully restored, based on a comparison with relatively undisturbed segments of those streams that are upstream of the mining operations.[15] The exception is fish abundance and diversity, which is substantially lower, perhaps, the authors suggest, because of the lack of mature riparian timber and instream woody debris.[16] In addition, monitoring of habitat, water chemistry, and biological parameters of a low-gradient stream in Indiana that flows through a channel reconstructed after mining has demonstrated rapid recovery of the stream's ecological function.[17]

The general consensus is that reconstruction and restoration of high-gradient streams after mining is more challenging. However, a 2012 EPA publication notes that “restoration of high-gradient, very small intermittent and ephemeral channels as part of stream mitigation projects is common in coalmining regions.” [18] This statement appears in the context of a discussion of improving existing degraded stream channels as mitigation for the adverse impacts of coal mining elsewhere, but the principles set forth in the publication also should apply to functional restoration of stream channels newly constructed or reconstructed as part of surface coal mining and reclamation operations. Appendix B of the publication describes a scenario in which high-gradient stream channels devoid of aquatic life on an abandoned minesite in West Virginia may be restored to biological health in an estimated 10 years.[19]

Most adverse impacts of surface coal mining operations on water quality occur as a result of the excavation and fracturing of the rock layers above the coal seam. The mining process converts mostly solid rock, which has few pore spaces and thus offers little opportunity for chemical reaction with air and water, into highly fragmented mine spoil, which contains a vastly greater number and volume of pore spaces and thus offers much greater opportunity for chemical reaction with air and water. Surface water and groundwater infiltrate the pore spaces in mine spoil placed in the backfilled area of a mine or in an excess spoil fill and react with air and the surfaces of the rock fragments to produce drainage with high ionic concentrations. Specifically, water percolating through an excess spoil fill or the backfilled area of a mine typically contains substantially higher concentrations of sulfate, bicarbonate, calcium, and magnesium ions, as well as some trace metals, compared to the concentrations of those ions and metals in groundwater discharges and surface runoff from areas undisturbed by mining.[20]

Start Printed Page 44441

When sulfate is the dominant anion in those discharges, the result can be acid mine drainage, which mobilizes metals such as iron, manganese, aluminum, and zinc that are directly toxic to fish at high levels.[21] But high concentrations of sulfate ions do not necessarily result in acid mine drainage because groundwater discharges and surface runoff from backfilled areas and excess spoil fills often also contain elevated concentrations of alkaline ions (especially calcium, magnesium, and carbonate ions), which neutralize the acidic sulfate ions, thus preventing the formation of acid mine drainage.[22]

However, alkaline ions also can have negative impacts on water quality and aquatic life. Elevated concentrations of alkaline ions in mine drainage may result in significant increases in the pH and electrical conductivity of streams that receive discharges from mined areas.[23] Elevated concentrations of both these ions and sulfate ions are highly correlated with elevated electrical conductivity in streams, which is highly correlated with the loss or absence of pollution-sensitive species of aquatic insects and fish even when in-stream habitat downstream of the mining activity is otherwise intact.[24] The adverse impacts may extend far downstream. One study found that adverse impacts from both surface and underground mines on water quality in Appalachian streams extended an average of 6.2 miles downstream from the mine.[25]

The EPA has established an aquatic life benchmark of 300 microsiemens per centimeter (μS/cm) for electrical conductivity, based on a scientific determination that maintaining conductivity at or below this level should prevent the extirpation of 95 percent of invertebrate genera, such as mayflies, dragonflies, damselflies, and aquatic beetles, in central Appalachian streams.[26] In other words, mining activities that cause an increase in the electrical conductivity of a stream to no more than 300 μS/cm would be expected to result in the extirpation of no more than 5 percent of the invertebrate genera present in the stream before mining. A recent study suggests that a similar benchmark for fish would be somewhat higher because adverse impacts on the populations and diversity of fish species begin to appear at conductivity readings between 600 and 1,000 μS/cm.[27]

Elevated electrical conductivity in streams can persist for many years after the completion of mining and land reclamation.[28] This water quality characteristic can prevent or restrict recolonization by the species of fish [29] and insects [30] that inhabited the affected stream segment before mining began in the watershed. Studies in Appalachia of existing minesites have not found any ecologically significant improvement in electrical conductivity with either time or the extent of reforestation of the minesite.[31] However, a recent study of test plots on a surface mine in Kentucky found that the quality of water emanating from plots that used the Forestry Reclamation Approach [32] to soil reconstruction improved dramatically within 3 to 9 years after spoil placement, with electrical conductivity apparently stabilizing at levels 50 percent below those recorded during the first 3 years.[33] Our proposed rule would address the conductivity issue by requiring that backfilling techniques consider impacts on electrical conductivity, by requiring that excess spoil fills be constructed in compacted lifts, and by incorporating elements of the Forestry Reclamation Approach into our soil reconstruction and revegetation rules.

Selenium Impacts

In locations with geological formations that contain selenium, mining has sometimes resulted in elevated levels of selenium in streams downgradient of the minesite. Mining exposes elemental selenium to air, thus facilitating oxidation to selenite and selenate, which are soluble in water. Selenium bioaccumulates [34] in fish tissues, causing reproductive problems, physical deformities, and, in extreme cases, mortality in fish in the affected streams.[35] Selenium is beneficial to animals, including humans, when ingested in small amounts, but toxic when ingested in amounts ranging from 0.1 to 10 mg/kg of food.[36] Humans have a dietary requirement estimated to be 0.04 to 0.10 mg/kg of food, but ingestion of selenium in amounts as low as 0.07 mg per day has been shown to have deleterious effects similar to arsenic poisoning.[37] Thus, selenium concentrations in streams may be a human health concern when the stream serves as a drinking water supply or Start Printed Page 44442when fish in the stream are used for human consumption.

The proposed rule would address the environmental and human health concerns related to selenium by requiring collection of baseline hydrologic and geologic information on this element. If selenium is present in any of the overburden to be removed as part of the mining process, the proposed rule would require that the permit include limits on selenium discharges to prevent material damage to the hydrologic balance outside the permit area. The hydrologic reclamation plan and toxic materials handling plan must address selenium and the surface water and groundwater monitoring plans must include selenium.

Impacts on Stream Flow Regime and Flooding

In addition to the water quality impacts discussed above, mining may affect the flow regime of streams by removing springs and otherwise causing changes in base flow, water temperature, seasonal variations in flow, and fluctuations in flow in response to storm events. Reclaimed minesites generally exhibit both reduced evapotranspiration (as a result of forest loss due to mining) and reduced infiltration of rainfall (as a result of soil compaction during reclamation), compared to unmined areas. A 2009 study of flood response in Virginia watersheds found that flood magnitude increased with the amount of surface-mined land within the watershed. In contrast, logging operations that removed most forest cover in similar Virginia watersheds increased overall water yield within the watershed without increasing flood volume, a difference that the authors of the study attributed to the soil compaction associated with typical surface mine reclamation. Another study in Maryland found that the volume of surface runoff as a result of a storm in a watershed influenced by surface mining was significantly higher than the volume of runoff from an undisturbed forested watershed as a result of the same-size storm. The authors attributed this difference to soil compaction on the mined land, which reduced infiltration rates to less than 1 cm/hr, compared to 30 cm/hr in the undisturbed watershed. Increased surface runoff in response to storms increases the potential for flood damage and may adversely impact the hydrological function of the stream by causing stream channelization.[38] Our proposed rule would address this issue by minimizing soil compaction and maximizing reforestation.

Impacts on Topography and Microclimates

Mining impacts on the terrestrial environment include a loss of topographic complexity; i.e., regraded minesites generally are flatter and more uniform in terms of surface elevation and configuration when compared with the premining topography. U.S. Geological Survey studies of central Appalachia found that surface coal mining reduced ridgetop elevations by an average of 112 feet, raised valley floor elevations by an average of 174 feet, reduced slope steepness by 9.5-11 percent, and changed slope aspect [39] by 38-41 degrees.[40] Changes are less dramatic in areas with flatter topography, but the same principle of greater uniformity and less topographic diversity after mining and regrading still applies. Regraded minesites usually lack the small drainageways and variations in slope and other topographical features found prior to mining. Therefore, they also lack the microclimates and associated ecosystems found prior to mining. Landsat data from 2007-2009 for the area containing a large mountaintop removal mining operation in West Virginia indicate that surface temperatures of areas disturbed by mining were warmer and more variable in all seasons except winter.[41] Surface temperatures influence the type of vegetation that can survive on mined land and the extent and rate at which the premining plant community and associated fauna can recolonize the site.

Impacts on Soils, Vegetation, and Terrestrial Wildlife

Other terrestrial impacts include forest fragmentation (loss of large blocks of contiguous mature interior forest and increases in forest edge and grassland habitat), loss of native forests, changes in species composition and biodiversity of both plants and animals, and loss or severe compaction of soil horizons and organic matter. At least temporarily, mining of previously forested areas adversely impacts species that prefer or require interior forest (for example, the cerulean warbler, the ovenbird, and the scarlet tanager) and favors species that prefer or require edge habitat (for example, the cardinal, the brown-headed cowbird, and many species of sparrows).

Furthermore, conventional reclamation techniques typically result in heavily compacted soils that offer a hostile environment for native plant species and soil microorganisms, which means that minesites reclaimed by those techniques often are either planted with or colonized by nonnative species and remain in a state of arrested ecological succession. Both soil compaction and competitive herbaceous ground covers inhibit the establishment of native forests similar to those that occupied the area prior to mining. Soil compaction also reduces the site indices for tree growth, which means that the reclaimed minesite is not capable of supporting a forest with a productivity equal to that of the forest that either existed or could have existed prior to mining.

Our proposed rule would address terrestrial impacts in a variety of ways, including a requirement for restoration of the premining drainage pattern to the extent possible and incorporation of elements of the Forestry Reclamation Approach. Use of that approach would minimize soil compaction and maximize reforestation and restoration of site productivity. Our proposed rule emphasizes revegetation with native species, restoration of natural plant communities whenever there is no conflict with implemented postmining land uses, and the protection or establishment of riparian corridors along streams to promote protection, restoration, and enhancement of fish, wildlife, and related environmental values. It also would modify the standards for approval of exceptions to the approximate original contour restoration requirement by limiting exceptions to those necessary to implement the postmining land use within the revegetation responsibility period.

Draft Environmental Impact Statement (EIS)

The draft EIS for this proposed rule contains an expanded discussion of the impacts of mining on the environment. Almost all the literature surveys and studies reviewed for this rulemaking process have been published since the adoption in 1983 of our principal regulations concerning protection of the hydrologic balance [42] and protection of fish, wildlife, and related environmental Start Printed Page 44443values,[43] which underscores the need to update our regulations to reflect new scientific understanding of impacts associated with coal mining.

Relationship to 2009 MOU

This proposed rule helps fulfill our responsibilities under a memorandum of understanding (MOU) that the Secretary of the Department of the Interior, the Administrator of the EPA, and the Acting Assistant Secretary of the Army (Civil Works) entered into on June 11, 2009. This MOU implemented an interagency action plan designed to significantly reduce the harmful environmental consequences of surface coal mining operations in six Appalachian states and ensure that future mining is conducted consistent with federal law. Specifically, Part III.A. of the MOU provides that we will review our “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.” It also provides that, at a minimum, we will consider revisions to the stream buffer zone rule published December 12, 2008,[44] and our existing regulatory requirements concerning approximate original contour. Ultimately, we determined that development of a comprehensive, nationally applicable stream protection rule would be the most appropriate and effective method of achieving the purposes and requirements of SMCRA, as well as meeting the goals set forth in the MOU.[45]

III. What needs does this proposed rule address?

All versions of the stream buffer zone rule that we have adopted over the years, including the version now in effect, focused primarily on activities in or within 100 feet of the stream itself.[46] Yet, mining activities beyond the 100-foot stream buffer zone can adversely impact the quality and quantity of water in streams by disturbing aquifers, by altering the physical and chemical nature of recharge zones as well as surface-water runoff and infiltration rates and drainage patterns, and by modifying the topography and vegetative composition of the watershed. Thus, there are many components of our regulations that could be revised to improve implementation of SMCRA with regard to protection of streams in particular and the hydrologic balance in general. We have identified six specific areas in which we propose to revise our regulations to better protect streams and associated environmental values.

First, while ephemeral streams derive their flow from surface runoff from precipitation events, perennial and intermittent streams derive their flow from both groundwater discharges and surface runoff from precipitation events. Therefore, there is a need to clearly define the point at which adverse mining-related impacts on both groundwater and surface water reach an unacceptable level; that is, the point at which adverse impacts from mining cause material damage to the hydrologic balance outside the permit area. Neither SMCRA nor the existing regulations define the term “material damage to the hydrologic balance outside the permit area” or establish criteria for determining what level of adverse impacts would constitute material damage. In particular, there is no requirement that the SMCRA regulatory authority establish a specific standard for conductivity or selenium, both of which can have deleterious effects on aquatic life at elevated levels.

Second, there is a need to collect adequate premining data about the site of the proposed mining operation and adjacent areas to establish a comprehensive baseline that will facilitate evaluation of the effects of mining. The existing rules require data only for a limited number of water-quality parameters rather than the full suite needed to establish a complete baseline against which the impacts of mining can be compared. The existing rules also contain no requirement for determining the biological condition of streams within the proposed permit and adjacent areas, so there is no assurance that the permit application will include baseline data on aquatic life.

Third, there is a need for effective, comprehensive monitoring of groundwater and surface water during and after both mining and reclamation and during the revegetation responsibility period to provide real-time information documenting mining-related changes in the values of the parameters being monitored. Similarly, there is a need to require monitoring of the biological condition of streams during and after mining and reclamation to evaluate changes in aquatic life. Proper monitoring will enable timely detection of any adverse trends and timely implementation of any necessary corrective measures. The existing rules require monitoring of only water quantity and a limited number of water-quality parameters, not all parameters necessary to evaluate the impact of mining and reclamation. The existing rules do not ensure that the number and location of monitoring points will be adequate to determine the impact of mining and reclamation. They also allow discontinuance or reduction of water monitoring too early to ascertain the impacts of mining and reclamation on water quality with a reasonable degree of confidence, especially for groundwater.

Fourth, there is a need to ensure protection or restoration of streams and related resources, including the headwater streams that are important to maintaining the ecological health and productivity of downstream waters. The existing rules have not always been applied in a manner sufficient to ensure protection or restoration of streams, especially with respect to the ecological function of streams. Maintenance, restoration, or establishment of riparian corridors or buffers, comprised of native species, for streams is a critical element of stream protection. In forested areas, riparian buffers for streams moderate the temperature of water in the stream, provide food (in the form of fallen leaves and other plant parts) for the aquatic food web, roots that stabilize stream banks, reduce surface runoff, and filter sediment and nutrients in surface runoff.

Fifth, there is a need to ensure that permittees and regulatory authorities make use of advances in information, technology, science, and methodologies related to surface and groundwater hydrology, surface-runoff management, stream restoration, soils, and revegetation, all of which relate directly or indirectly to protection of water resources.

Sixth, there is a need to ensure that land disturbed by surface coal mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before any mining, including both those uses dependent upon stream protection or restoration and those uses that promote or support protection and restoration of Start Printed Page 44444streams and related environmental values. Existing rules and permitting practices have focused primarily on the land's suitability for a single approved postmining land use and they have not always been applied in a manner that results in the construction of postmining soils that provide a growth medium suitable for restoration of premining site productivity. A corollary need is to ensure that reclaimed minesites are revegetated with native species unless and until a conflicting postmining land use, such as intensive agriculture, is implemented. Soil characteristics and the degree and type of revegetation have a major impact on surface-water runoff quantity and quality as well as on aquatic life and the terrestrial ecosystems dependent upon perennial and intermittent streams. Under the existing rules, sites with certain postmining land uses have been revegetated with non-native species even when the postmining land use is not implemented prior to final bond release and even on those portions of the site where non-native species are not necessary to achieve the postmining land use.

The proposed rule would address these needs in the manner described in Part IX of this preamble. As mentioned in Part II of this preamble, we determined that improved protection of the hydrologic balance, especially streams, and related environmental values would benefit all regions of the country, not just Appalachia. In addition, one of the reasons SMCRA was enacted was to ensure a minimum level of environmental protection nationwide by establishing national surface coal mining and reclamation standards to prevent competition for coal markets from undermining the ability of states to maintain adequate regulatory programs for coal mining operations within their borders. See section 101(g) of SMCRA, 30 U.S.C. 1201(g). Thus, we concluded that a nationwide rule is required to clearly articulate a minimum standard for protection of the hydrologic balance, especially streams, and related environmental values that strikes an appropriate balance between environmental protection and the Nation's need for coal.

IV. What Clean Water Act programs protect streams?

The goal of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” [47] To achieve that objective, section 301 of the Clean Water Act [48] prohibits the discharge of pollutants from point sources into waters of the United States unless consistent with the requirements of the Act. Section 402 of the Clean Water Act [49] governs the discharge of pollutants other than dredged or fill material, while section 404 [50] governs the discharge of dredged or fill material into waters of the United States.

Section 303 Water Quality Standards

Section 303 of the Clean Water Act [51] requires states to adopt water quality standards applicable to their intrastate and interstate waters. Water quality standards assist in maintaining the physical, chemical, and biological integrity of a water body by designating uses, setting water quality criteria to protect those uses, and establishing provisions to protect water quality from degradation. Water quality standards established by states [52] are subject to EPA review. 40 CFR 131.5; 33 U.S.C. 1313(c). EPA may object to state-adopted water quality standards and may require changes to the state-adopted water quality standards and, if the state does not respond to EPA's objections, EPA may promulgate federal standards. 33 U.S.C. 1313(c)(3)-(4); 40 CFR 131.5, 131.21.

Water quality criteria may be expressed numerically and implemented in permits through specific numeric limitations on the concentration of a specific pollutant in the water (e.g., 0.1 milligrams of chromium per liter) or by more general narrative standards applicable to a wide set of pollutants. To assist states in adopting water quality standards that will meet with EPA's approval, Congress authorized EPA to develop and publish recommended criteria for water quality that accurately reflect “the latest scientific knowledge.” 33 U.S.C. 1314(a). Water quality standards are not self-implementing; they are implemented through permits, such as the section 402 permit or the section 404 permit. 33 U.S.C. 1311(b)(1)(C); 40 CFR 122.44(d), 230.10(b).

Section 401 Water Quality Certification

State water quality standards are incorporated into all federal Clean Water Act permits through section 401, which requires each applicant to submit a certification from the affected state that the discharge will be consistent with state water quality requirements. 33 U.S.C. 1341(a)(1). Thus, section 401 provides states with a veto over federal permits that may allow exceedances of state water quality standards. It also empowers states to impose and enforce water quality standards that are more stringent than those required by federal law. 33 U.S.C. 1370.

Section 402 National Pollutant Discharge Elimination System (NPDES)

Section 402 of the Clean Water Act governs discharges of pollutants other than dredged or fill material into waters of the United States. Permits issued under the authority of section 402 are known as NPDES permits. They typically contain numerical limits called effluent limitations that restrict the amounts of specified pollutants that may be discharged. NPDES permits must contain technology-based effluent limits and any more stringent water quality-based effluent limits necessary to meet applicable state water quality standards. 33 U.S.C. 1311(b)(1)(A) and (C), 33 U.S.C. 1342(a); 40 CFR 122.44(a)(1) and (d)(1). Water quality-based effluent limitations are required for all pollutants that the permitting authority determines “are or may be discharged at a level [that] will cause, have the reasonable potential to cause, or contribute an excursion above any [applicable] water quality standard, including State narrative criteria for water quality.” 40 CFR 122.44(d)(1)(i). The procedure for determining the need for water quality-based effluent limits is called a reasonable potential analysis, or “RPA.”

Section 402 permits are issued by EPA unless the state has an approved program whereby the state issues the permits, subject to EPA oversight. 33 U.S.C. 1342(b)(e); 551 U.S. 644, 650-651 (2007). The state must submit draft permits to EPA for review, and EPA may object to a proposed permit that is not consistent with the Clean Water Act and federal regulations. 33 U.S.C. 1342(d); 40 CFR 123.43 and 123.44. If the state does not adequately address EPA's objections, EPA may assume the authority to issue the permit. 33 U.S.C. 1342(d)(4). EPA's procedures for the review of state-issued permits are set forth in regulations at 40 CFR 123.44 and in memoranda of agreement with the states.

Section 404 Permits

Section 404(a) of the Clean Water Act authorizes the Secretary of the Army, acting through the U.S. Army Corps of Engineers (ACE or the Corps), to “issue Start Printed Page 44445permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. 1344(a). By this authority, the ACE regulates discharges of dredged and fill material into waters of the United States in connection with surface coal mining and reclamation operations. The ACE's regulations governing section 404 permit procedures are set forth at 33 CFR part 325.

Although the ACE is the permitting authority under section 404, EPA has an important role in the permitting process. Section 404(b) of the Clean Water Act requires that permitting decisions comply with guidelines developed by EPA in conjunction with the ACE. These guidelines, which are referred to as the “404(b)(1) Guidelines,” are codified in 40 CFR part 230. Among other things, the 404(b)(1) Guidelines prohibit the discharge of fill if it would cause or contribute to a violation of a water quality standard or cause or contribute to significant degradation of the waters of the United States. 40 CFR 230.10(b), (c)(1) through (c)(3). The 404(b)(1) Guidelines require the ACE to analyze more than 15 different factors that could be impacted by the proposed action, including substrate, suspended particulates, turbidity, water quality, water circulation, water level fluctuations, salinity gradients, threatened and endangered species, aquatic organisms in the food web, other wildlife special aquatic sites, water supplies, fisheries, recreation, aesthetics, and parks. 40 CFR 230(c) through (f). The 404(b)(1) Guidelines provide that the ACE must ensure that the proposed discharges would not cause or contribute to significant adverse effects on human health or welfare, aquatic life, or aquatic ecosystems. 40 CFR 230.10(c)(1) through (c)(3).

Before the ACE may issue a section 404 permit, it must provide notice to the public, EPA, and other resource agencies, which may provide comments to the ACE for consideration. 33 CFR 325.3(d). In addition, the ACE and EPA have entered into a Memorandum of Agreement (MOA) as directed by section 404(q) of the Clean Water Act, 33 U.S.C. 1344(q), that expressly recognizes that “the EPA has an important role in the Department of the Army Regulatory Program under the Clean Water Act[.]” The MOA provides that “[p]ursuant to its authority under section 404(b)(1) of the Clean Water Act, the EPA may provide comments to the Corps identifying its views regarding compliance with the section 404(b)(1) Guidelines” and “[t]he Corps will fully consider EPA's comments when determining [compliance] with the National Environmental Policy Act, and other relevant statutes, regulations, and policies.” Id.

In addition, section 404(c) of the Clean Water Act provides EPA with the authority to prohibit, withdraw, deny, or restrict the specification of disposal sites that would otherwise be authorized by a section 404 permit. This provision is often referred to as EPA's permit veto authority.

The ACE reviews individual permit applications under section 404(a) of the Clean Water Act on a case-by-case basis. 33 U.S.C. 1344(a). Individual permits may be issued or denied after a review involving, among other things, site-specific documentation and analysis, opportunity for public hearing, public interest review, and a formal determination that the permit is lawful and warranted. 33 CFR parts 320, 323, and 325.

Not every discharge is of such significance that an individual evaluation of the discharge's environmental effects is necessary. Instead, section 404(e) of the Clean Water Act authorizes the Secretary of the Army to issue general permits for categories of activities involving discharges of dredged or fill material that, as a group, have only minimal impacts on the waters of the United States. The ACE can issue these general permits (as well as individual permits) on a state, regional, or nationwide basis. The ACE refers to general permits issued on a nationwide basis as “nationwide permits” (NWP). NWPs must be reviewed reissued every 5 years to remain valid. The ACE last reissued the NWPs on February 21, 2012 (77 FR 10184).

NWP 21, Surface Coal Mining Activities, provides authorization for the discharge of dredged or fill material into waters of the United States when those discharges are associated with surface coal mining activities. The permittee must submit a preconstruction notification to the ACE district engineer and receive written authorization prior to commencing the activity. The ACE review of preconstruction notifications under NWP 21 is focused on the individual and cumulative adverse effects to the aquatic environment and on determining appropriate mitigation should mitigation be necessary. The ACE review does not extend to upland areas or the mining operation as a whole.

To qualify for NWP 21, an activity must meet all of the following criteria:

(1) The activities are already authorized or are currently being processed by a SMCRA-approved state program or an integrated permit processing procedure by the Department of the Interior.

(2) The discharge will not cause the loss of more than 1/2 acre of non-tidal waters of the United States, including the loss of no more than 300 linear feet of streambed, unless, for intermittent and ephemeral streambeds, the ACE district engineer waives the 300-linear-foot limit by making a written determination concluding that the discharge will result in minimal individual and cumulative adverse effects.

(3) The discharge is not associated with the construction of valley fills which are fill structures associated with surface coal mining activities that are typically constructed within valleys associated with steep, mountainous terrain.

Any surface mining activity that does not meet all three criteria must apply for an individual permit instead unless the activity qualifies for NWP 49 as discussed below.

Two other NWPs may apply to coal mining activities under SMCRA.

NWP 49, Coal Remining Activities, applies to discharges of dredged or fill material into non-tidal waters of the United States when those discharges are associated with the remining and reclamation of lands that were previously mined for coal. The activities must already be authorized by the SMCRA regulatory authority or be in process as part of an integrated permit processing procedure under SMCRA.

The permittee may conduct new coal mining activities in conjunction with the remining activities when he or she clearly demonstrates to the ACE that the overall mining plan will result in a net increase in aquatic resource functions. The ACE will consider the SMCRA regulatory authority's decision regarding the amount of currently undisturbed adjacent lands needed to facilitate the remining and reclamation of the previously mined area. The total area disturbed by new mining must not exceed 40 percent of the total acreage covered by both the remined area and the additional area necessary to carry out the reclamation of the previously mined area. The permittee must submit a pre-construction notification and a document describing how the overall mining plan will result in a net increase in aquatic resource functions to the district engineer and receive written authorization prior to commencing the activity.Start Printed Page 44446

NWP 50, Underground Coal Mining Activities, applies to discharges of dredged or fill material into non-tidal waters of the United States when those discharges are associated with the remining and reclamation of lands that were previously mined for coal. The activities must already be authorized by the SMCRA regulatory authority or be in process as part of an integrated permit processing procedure under SMCRA.

The discharge must not cause the loss of greater than 1/2 acre of non-tidal waters of the United States, including the loss of no more than 300 linear feet of stream bed, unless, for intermittent and ephemeral streambeds, the ACE district engineer waives the 300-linear-foot limit by making a written determination concluding that the discharge will result in minimal adverse effects. This NWP does not authorize coal preparation and processing activities outside the minesite or discharges into nontidal wetlands adjacent to tidal waters. The permittee must submit a pre-construction notification to the ACE district engineer and receive written authorization prior to commencing the activity.

V. What provisions of SMCRA provide legal authority for the proposed rule?

This proposed rule would more completely implement SMCRA's permitting requirements and performance standards and better achieve the purposes of SMCRA as set forth in section 102 of the Act.[53] It is intended to balance all relevant purposes of the Act, which include ensuring that surface coal mining operations are conducted in a manner that protects the environment, establishing a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations, and ensuring a coal supply adequate for our Nation's energy needs.

Our proposed rule is intended to address the adverse impacts and needs discussed in Parts II and III of this preamble by adding specificity to and otherwise revising our existing regulations to more completely implement various provisions of SMCRA, including, but not limited to:

Section 101(c),[54] in which Congress finds that “many surface coal mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by * * * polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, * * * and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources.”

Section 102(a),[55] which provides that one of the purposes of the Act is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.”

Section 102(d),[56] which provides that one of the purposes of the Act is to “assure that surface coal mining operations are so conducted as to protect the environment.”

Section 102(f),[57] which provides that one of the purposes of the Act is to “strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.”

Section 102(m),[58] which provides that the Secretary, wherever necessary, “exercise the full reach of Federal constitutional powers to insure the protection of the public interest through effective control of surface coal mining operations.”

Section 201(c)(2),[59] which provides that the Secretary, acting through OSMRE, will “publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this Act.”

Section 510(b)(2),[60] which provides that the regulatory authority may not approve a permit application unless it first finds that “the applicant has demonstrated that reclamation as required by this Act and the State or Federal program can be accomplished under the reclamation plan contained in the permit application.”

Section 510(b)(3),[61] which provides that the regulatory authority may not approve a permit application unless it first finds that the proposed operation “has been designed to prevent material damage to the hydrologic balance outside the permit area.”

Section 515(b)(2),[62] which requires that the permittee restore land affected by surface coal mining and reclamation operations “to a condition capable of supporting the uses which it was capable of supporting prior to mining.” This paragraph also allows restoration to a condition capable of supporting “higher or better uses of which there is reasonable likelihood,” provided certain conditions relating to public health or safety, water pollution, and consistency with land use policies, plans, and legal requirements are met.

Section 515(b)(10),[63] which requires that surface coal mining and reclamation operations “minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation.” Section 516(b)(9) [64] contains similar provisions applicable to underground mining operations.

Section 515(b)(19),[65] which requires that surface coal mining and reclamation operations “establish on the regraded areas, and all other lands affected, a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area; except that introduced species may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan.” Section 516(b)(6) [66] contains generally similar provisions applicable to underground mining operations.

Section 515(b)(22)(A),[67] which requires that all excess spoil material be “transported and placed in a controlled manner in position for concurrent compaction and in such a way to assure mass stability and to prevent mass movement.”

Section 515(b)(23),[68] which requires that surface coal mining and reclamation operations “meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this Act, taking into consideration the physical, climatological, and other characteristics of the site.”

Section 515(b)(24),[69] which provides that surface coal mining and reclamation operations must, “to the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable.” Section 516(b)(11) [70] contains similar Start Printed Page 44447provisions for underground mining operations.

Finally, section 702(a) of SMCRA [71] provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act, any rule or regulation adopted under the Clean Water Act, or any state laws enacted pursuant to the Clean Water Act. While this provision does not provide rulemaking authority, it does place limits on rulemaking under SMCRA.

VI. What is the history of our regulation of coal mining in relation to buffer zones for streams?

The U.S. House of Representatives first passed a bill (H.R. 6482) to regulate surface coal mining operations in 1972. Section 9(a) of that bill included a flat prohibition on mining within 100 feet of any “body of water, stream, pond, or lake to which the public enjoys use and access, or other private property.” However, the bill never became law and the provision did not appear in either the House or Senate versions of the bills that ultimately became SMCRA. Therefore, nothing in SMCRA specifically establishes or requires a buffer zone for streams, although sections 515(b)(24) and 516(b)(11) of SMCRA [72] require that mining operations minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible using the best technology currently available. We have consistently interpreted those and other provisions of SMCRA as meaning that protection of perennial and intermittent streams, with their intrinsic value to fish and wildlife, is an important element of the environmental protection regime that SMCRA established. Since the enactment of SMCRA, we have adopted four sets of regulations, which we discuss below, that included the concept of a buffer zone for streams.

The 1977 Stream Buffer Zone Rule

In 1977, we published initial regulatory program regulations providing that no land within 100 feet of an intermittent or perennial stream could be disturbed by surface coal mining and reclamation operations unless the regulatory authority specifically authorizes those operations. See 30 CFR 715.17(d)(3) and 717.17(d), as published at 42 FR 62639, 62686, 62697 (Dec. 13, 1977). We stated that we adopted that rule as a means “to protect stream channels from abnormal erosion” from nearby upslope mining activities.[73] However, that rule, which applies only to the now-limited subset of surface coal mining and reclamation operations subject to the initial regulatory program, does not specify the conditions under which the regulatory authority may authorize surface coal mining operations within the buffer zone.

The 1979 Stream Buffer Zone Rule

In 1979, we published the original version of our permanent regulatory program regulations. Those regulations, as codified at 30 CFR 816.57 and 817.57, provided that, with the exception of stream diversions, the surface of land within 100 feet of a perennial stream or a non-perennial stream with a biological community could not be disturbed by surface mining activities or surface operations and facilities associated with an underground mine unless the regulatory authority specifically authorized mining-related activities closer to or through the stream. Under the regulations, the regulatory authority could grant that authorization only after making a finding that the original stream channel would be restored and that, during and after the mining, the water quantity and quality in the section of the stream within 100 feet of the mining activities would not be adversely affected.

Paragraph (c) of these rules provided that a biological community existed if, at any time, the stream contained an assemblage of two or more species of arthropods or molluscan animals that were adapted to flowing water for all or part of their life cycle, dependent upon a flowing water habitat, reproducing or could reasonably be expected to reproduce in the water body where they are found, and longer than two millimeters at some stage of the part of their life cycle spent in the flowing water habitat. See 44 FR 14902, 15175 (Mar. 13, 1979).

The preamble to the 1979 rules explains that the purpose of the revised rules was to implement paragraphs (b)(10) and (b)(24) of section 515 of the Act.[74] It states that “[b]uffer zones are required to protect streams from the adverse effects of sedimentation and from gross disturbance of stream channels,” but that “if operations can be conducted within 100 feet of a stream in an environmentally acceptable manner, they may be approved.” [75] In addition, it states that “[t]he 100-foot limit is based on typical distances that should be maintained to protect stream channels from sedimentation,” but that, while the 100-foot standard provides a simple rule for enforcement purposes, “site-specific variation should be made available when the regulatory authority has an objective basis for either increasing or decreasing the width of the buffer zone.” [76]

The 1983 Stream Buffer Zone Rule

In 1983, we revised 30 CFR 816.57 and 817.57 by deleting the requirement to restore the original stream channel. We also replaced the biological community criterion for determining which non-perennial streams are protected under the rule with a requirement for protection of all perennial and intermittent streams. We redefined an intermittent stream as a stream or reach of a stream that (a) drains a watershed of at least one square mile or (b) is below the local water table for at least some part of the year and obtains its flow from both surface runoff and groundwater discharge. Finally, we replaced the 1979 finding with a requirement that the regulatory authority find that the proposed mining activities would not cause or contribute to a violation of applicable state or federal water quality standards and would not adversely affect the quantity or quality of the water in the stream or the other environmental resources of the stream. See 48 FR 30312, 30327-30328 (Jun. 30, 1983).

In 1983, we also adopted revised performance standards for coal preparation plants not located within the permit area of a mine. At that time, we decided not to apply the stream buffer zone rule to those preparation plants. See 30 CFR 827.12 and the preamble to those rules at 48 FR 20399 (May 5, 1983).

The preamble to the 1983 stream buffer zone rules reiterates the general rationale for adoption of a stream buffer zone rule that we specified in the preamble to the 1979 rules. In addition, it identifies the reason for replacing the biological community criterion with the intermittent stream threshold as a matter of improving the ease of administration and eliminating the possibility of applying the rule to ephemeral streams:

The biological-community standard was confusing to apply since there are areas with ephemeral surface waters of little biological or hydrologic significance which, at some time of the year, contain a biological community as defined by previous § 816.57(c). Thus, much confusion arose when operators attempted to apply the previous rule's standards to springs, seeps, Start Printed Page 44448ponding areas, and ephemeral streams. While some small biological communities which contribute to the overall production of downstream ecosystems will be excluded from special buffer-zone protection under final § 816.57(a), the purposes of Section 515(b)(24) of the Act will best be achieved by providing a buffer zone for those streams with more significant environmental-resource values.[77]

Referring to those streams that would not be protected by 30 CFR 816.57, i.e., ephemeral streams, the preamble further states that “[i]t is impossible to conduct surface mining without disturbing a number of minor natural streams, including some which contain biota.” [78] Referring to those streams that would be protected by 30 CFR 816.57, i.e., perennial and intermittent streams, the preamble also states that “surface coal mining operations will be permissible as long as environmental protection will be afforded to those streams with more significant environmental-resource value.” [79] The preamble further provides that the revised rules “also recognize that intermittent and perennial streams generally have environmental-resource values worthy of protection under Section 515(b)(24) of the Act.” [80] In addition, the preamble notes that “[a]lthough final § 816.57 is intended to protect significant biological values in streams, the primary objective of the rule is to provide protection for the hydrologic balance and related environmental values of perennial and intermittent streams”.[81] It further states that “[t]he 100-foot limit is used to protect streams from sedimentation and help preserve riparian vegetation and aquatic habitats.” [82]

We also stated that we removed the requirement to restore the original stream channel in deference to the stream-channel diversion requirements of 30 CFR 816.43 and 817.43 and to clarify that there does not have to be a stream diversion for mining to occur inside the buffer zone.[83]

Finally, the preamble states that we expanded the finding in 30 CFR 816.57(a)(1) to include environmental resources of the stream other than water quantity and quality to clarify “that regulatory authorities will be allowed to consider factors other than water quantity and quality in making buffer-zone determinations” and “to provide a more accurate reflection of the objectives of Sections 515(b)(10) and 515(b)(24) of the Act.” [84] In fact, the language of the revised finding not only allowed regulatory authorities to consider environmental resources of the stream other than water quantity and quality, it required that they do so.

The National Wildlife Federation challenged this regulation as being inconsistent with sections 515(b)(10) and (24) of the Act, primarily because it deleted the biological community criterion for non-perennial stream protection. However, the court rejected that challenge, finding without elaboration that the “regulation is not in conflict with either section 515(b)(10) or 515(b)(24).” [85] The court also noted that the Secretary had properly justified the rule change on the grounds that the previous rule was confusing and difficult to apply without protecting areas of little biological significance.

Industry also challenged the 1983 version of 30 CFR 817.57(a) to the extent that it included all underground mining activities. However, industry withdrew its challenge when the Secretary stipulated that the rule would apply only to surface lands and surface activities associated with underground mining.[86]

Historically, we and some state regulatory authorities applied the 1983 stream buffer zone rule in a manner that allowed the placement of excess spoil fills, refuse piles, slurry impoundments, and sedimentation ponds in intermittent and perennial streams within the permit area. However, as discussed at length in the preamble to a 2004 proposed rule,[87] which we never finalized, there has been considerable controversy over the proper interpretation of both the Clean Water Act and our 1983 rules as they apply to the placement of fill material in or near perennial and intermittent streams.

One interpretation of the 1983 stream buffer zone rules appears in our annual oversight reports for West Virginia for 1999 and 2000, which state that the stream buffer zone rule does not apply to the footprint of a fill placed in a perennial or intermittent stream as part of a surface coal mining operation. On June 4, 1999, in West Virginia Highlands Conservancy v. Babbitt, Civ. No. 1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that interpretation, alleging that it constituted rulemaking in violation of the Administrative Procedure Act.

However, on August 9, 1999, OSMRE, the U.S. Army Corps of Engineers, EPA, and the West Virginia Division of Environmental Protection (WVDEP) signed a memorandum of understanding (MOU) in which all four agencies in effect agreed to an interpretation that allowed valley fills in intermittent or perennial streams to be approved only if the buffer zone findings were made for the filled stream segments. The MOU also stated that the Clean Water Act Section 404(b)(1) Guidelines at 40 CFR part 230 contain requirements comparable to the findings required by the combination of OSMRE's 1983 stream buffer zone rule and the West Virginia stream buffer zone rule. Consequently, the MOU found that, “where a proposed fill is consistent with the requirements of the Section 404(b)(1) Guidelines and applicable requirements for Section 401 certification of compliance with water quality standards, the fill would also satisfy the criteria for granting a stream buffer zone variance under SMCRA and WVDEP regulations.” [88] As a result of the signing of the MOU, the court approved an unopposed motion to dismiss the case mentioned above [89] as moot in an order filed September 23, 1999.

In a lawsuit filed in the U.S. District Court for the Southern District of West Virginia in July 1998, plaintiffs asserted that the 1983 stream buffer zone rule should be interpreted to allow mining activities through a perennial or intermittent stream or within the buffer zone for a perennial or intermittent stream only if the activities are minor incursions.[90] They argued that the rule did not allow substantial segments of a perennial or intermittent stream to be buried underneath excess spoil fills or other mining-related structures.[91] On October 20, 1999, the district court ruled in favor of the plaintiffs on this Start Printed Page 44449point, holding that the West Virginia version of the stream buffer zone rule applies to all segments of a stream, including those segments within the footprint of an excess spoil fill, not just to the stream as a whole.[92] The court stated that the construction of fills in perennial or intermittent streams is inconsistent with the language of the West Virginia counterpart to 30 CFR 816.57(a)(1), which provides that the regulatory authority may authorize surface mining activities within a stream buffer zone only after making certain findings, including a finding that the proposed activities would not “adversely affect the normal flow or gradient of the stream, adversely affect fish migration or related environmental values, materially damage the water quantity or quality of the stream . . . .” [93] The court also concluded that, contrary to the August 1999 MOU, satisfaction of the Section 404(b)(1) Guidelines is not equivalent to satisfaction of the SMCRA buffer zone rule.[94]

On appeal, the U.S. Court of Appeals for the Fourth Circuit vacated the judgment of the district court and remanded the case with instructions to dismiss the counts concerning the stream buffer zone rule as barred by the Eleventh Amendment to the U.S. Constitution. See Bragg v. West Virginia Coal Ass'n, 248 F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002). While the Fourth Circuit did not interpret the 1983 version of the stream buffer zone rule, the brief for the federal appellants in that case included another interpretation of the regulation in their brief. In sum, the federal appellants supported an interpretation based on the district court decision and stated that 30 CFR 816.57 “prohibits the burial of substantial portions of intermittent and perennial streams beneath excess mining spoil.” [95]

In a different case related to the issuance of a nationwide section 404 permit under the Clean Water Act, the U.S. District Court for the Southern District of West Virginia stated in an opinion that SMCRA and the 1983 stream buffer zone rule do not authorize disposal of overburden in streams: “SMCRA contains no provision authorizing disposal of overburden waste in streams, a conclusion further supported by the buffer zone rule.” [96] Yet, on appeal, the U.S. Court of Appeals for the Fourth Circuit rejected the district court's conclusion, stating that “SMCRA does not prohibit the discharge of surface coal mining excess spoil in waters of the United States.” [97] The court further stated that “it is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States even though those materials do not have a beneficial purpose.”[98]

In subsequent litigation, the federal appellants stated that “OSM has historically interpreted its `stream buffer zone' rule . . . to allow for the construction of valley fills in intermittent and perennial streams, even if such fills cover a stream segment. The traditional interpretation of the [stream buffer zone] is in harmony with this Court's decision in Rivenburgh.” [99] Additionally, the U.S. Court of Appeals for the Fourth Circuit has discussed SMCRA's role in the regulation of valley fills in the context of a challenge to individual permits under section 404 of the Clean Water Act.[100] See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 195 (4th Cir. 2009) (“Congress clearly contemplated that the regulation of the disposal of excess spoil and the creation of valley fills falls under the SMCRA rubric.”).

The 2008 Rule

In 2004, we proposed a rule to revise the 1983 version of the stream buffer zone rule in order “to clarify the circumstances in which mining activities such as the construction of excess spoil fills may be allowed within the [stream buffer zone]”.[101] Although we abandoned this proposed rule, we proposed another rule in 2007, in part “to end the ambiguity in interpretation of the stream buffer zone rules and to ensure that regulatory authorities, mine operators, other governmental entities, landowners, and citizens all can have a common understanding of what the stream buffer zone rules do and do not require, consistent with underlying statutory authority.” [102]

We subsequently adopted a final rule that revised the circumstances under which mining activities may be conducted in or near perennial or intermittent streams and established new requirements for the creation and disposal of excess spoil and coal mine waste. Among other things, the rule required that mining operations be designed to minimize the creation of excess spoil and that permit applicants consider a range of reasonable alternatives to the disposal of excess spoil and coal mine waste in perennial or intermittent streams or their buffer zones and select the alternative with the least overall adverse impact on fish, wildlife, and related environmental values. With respect to activities in the stream itself, it replaced the findings in the 1983 rule with a requirement for a finding that avoiding disturbance of the stream is not reasonably possible. It also required a demonstration of compliance with the Clean Water Act before the permittee initiates mining activities in a perennial or intermittent stream if those activities require authorization or certification under the Clean Water Act. With respect to activities confined to the stream buffer zone, the rule replaced the findings in the 1983 rule with a requirement for a finding that avoiding disturbance of land within 100 feet of the stream either is not reasonably possible or is not necessary to meet the fish and wildlife and hydrologic balance protection requirements of the regulatory program. That rule, which we refer to in this preamble as the 2008 rule, took effect January 12, 2009. For a more detailed history of the 2008 rule, please refer to the discussion in the preamble to that rule.[103]

Litigation Concerning the 2008 Rule

Shortly after publication of the 2008 rule, ten environmental organizations challenged the validity of the rule. See Coal River Mountain Watch v. Salazar (“Coal River”), No. 08-2212 (D.D.C., filed Dec. 22, 2008) and National Parks Conservation Ass'n v. Salazar (“NPCA”), No. 09-115 (D.D.C., filed Jan. 16, 2009).

In NPCA, the Federal Government filed a motion on April 27, 2009, for voluntary remand and vacatur of the 2008 rule. The motion was based on the Secretary's determination that OSMRE Start Printed Page 44450erred in failing to initiate consultation with the U.S. Fish and Wildlife Service (FWS or the Service) under section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), to evaluate possible effects of the 2008 rule on threatened and endangered species. In Coal River, the Federal Government filed a motion on April 28, 2009, to dismiss the complaint as moot if the court granted the motion in NPCA.

On August 12, 2009, the court denied the Federal Government's motion in NPCA, holding that, absent a ruling on the merits, significant new evidence, or consent of all the parties, a grant of vacatur would allow the government to improperly bypass the procedures set forth in the Administrative Procedure Act, 5 U.S.C. 551 et seq., for repealing an agency rule. On the same date, the court denied the Federal Government's motion to dismiss in Coal River. See Nat'l Parks Conservation Ass'n v. Salazar, 660 F. Supp. 2d 3, 4 (D.D.C. 2009).

On March 19, 2010, the parties involved in the NPCA and Coal River litigation signed a settlement agreement in which the Secretary agreed to make best efforts to sign a proposed rule to amend or replace the 2008 rule within a year and sign a final rule within approximately 18 months. On April 2, 2010, the court granted the parties' motion to hold in abeyance further judicial proceedings concerning the 2008 rule to allow time for us to conduct this rulemaking. However, for a variety of reasons, the Secretary had not yet published a proposed rule as of the beginning of 2013. Given this delay, on March 19, 2013, the court granted the plaintiffs' motions to resume the litigation.

On February 20, 2014, the court vacated the 2008 rule because “OSM's determination that the revisions to the stream protection rule encompassed by the 2008 Rule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion” and that therefore our failure to initiate consultation on the 2008 rule was a violation of section 7(a)(2) of the Endangered Species Act. NPCA v. Jewell, 2014 U.S. Dist. LEXIS 152383, at * 13-* 14 (D.D.C. Feb. 20, 2014).[104] Given the court's ruling in NPCA, the court determined that “there is no further relief that the court can grant” in Coal River and dismissed that case. Coal River v. Jewell, No. 08-2212, Memorandum Decision and Order of Dismissal at 2.

The court in NPCA remanded the vacated rule to us for further proceedings consistent with the decision.[105] The court's decision also stated that vacatur of the 2008 rule resulted in reinstatement of the rule in effect before the vacated rule took effect.[106] In response, OSMRE published a notice of vacatur in the Federal Register.[107] Therefore, the proposed rule that we are publishing today uses the pre-2008 rules as the baseline for all proposed changes.

The 2009 Memorandum of Understanding

As mentioned above, on June 11, 2009, the Secretary, the Administrator of the EPA, and the Acting Assistant Secretary of the Army (Civil Works) entered into an MOU [108] implementing an interagency action plan designed to significantly reduce the harmful environmental consequences of surface coal mining operations in six Appalachian states,[109] while ensuring that future mining remains consistent with federal law. Among other things, in the MOU we committed to review our “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.” It also provides that, at a minimum, we will consider revisions to the 2008 rule and our regulatory requirements concerning approximate original contour.[110]

The proposed rule that we are publishing today is, in part, the result of our review of existing regulatory authorities and procedures as promised in the MOU. The proposed rule would replace the vacated 2008 rule and the reinstated pre-2008 rules. However, we have decided not to propose any major changes to our permitting requirements and performance standards concerning approximate original contour restoration at this time because of cost concerns and perceived difficulty of implementation.[111]

The Advance Notice of Proposed Rulemaking (ANPRM)

On November 30, 2009 (74 FR 62664-64668), we published an advance notice of proposed rulemaking, consistent with the MOU and National Parks Conservation Association v. Salazar, 660 F. Supp. 2d 3, 4 (D.D.C. 2009). Specifically, the notice described ten alternatives for revising the 2008 rule and related rules and invited the public to comment on those alternatives and to suggest other ways that the 2008 rule should be revised to better protect streams and implement the MOU. We also invited the public to identify provisions of our regulations other than the 2008 rule that should be revised to better protect the environment and the public from the impacts of Appalachian surface coal mining. We received approximately 32,750 comments during the 30-day comment period.

After evaluating the comments that we received on the ANPRM, re-examining the 2008 rule, and re-examining practices in and outside Appalachia, we determined that development of a comprehensive stream protection rule would be the most appropriate and effective method of better achieving the purposes and requirements of SMCRA as well as the goals set forth in the MOU and the ANPRM. Consequently, we are proposing a rule that would identify measures that mine operators and SMCRA regulatory authorities must take to prevent or minimize mining-related impacts on streams and fish, wildlife and related environmental values.

Thus, the scope of this proposed rule is broader than the scope of the 2008 rule, which focused primarily on excess spoil handling, coal mine waste disposal, and activities conducted in or near streams. Consistent with the broader scope of the proposed rule, we are preparing a new EIS, rather than supplementing the EIS prepared for the 2008 rule. We also are consulting with the U.S. Fish and Wildlife Service as required by section 7 of the Endangered Species Act. Furthermore, if we determine that adoption of this proposed rule may affect species under the jurisdiction of the National Marine Fisheries Service (NMFS), we will consult with NMFS, which is Start Printed Page 44451responsible for administration and enforcement of the Endangered Species Act with respect to anadromous and marine species.

Comments that we received in response to the ANPRM differed as to whether the proposed rule should be national in scope or whether it should be limited to central Appalachia or to steep-slope mining operations. After evaluating those comments, we have decided to propose rules that are national in scope because streams are ecologically important regardless of topography or where they are located in the country. Measures to protect the quality and quantity of streamflow, both from surface sources and groundwater discharges, are likewise important regardless of topography or location. In addition, section 101(g) of SMCRA states that “[national] surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders.” In other words, national standards are necessary because they define a set of environmental protection requirements that a state cannot relax as an incentive to coal producers to either continue to mine coal in the state or to relocate to the state.

Protecting our water resources and preventing water pollution is important everywhere, especially in the arid and semiarid West and portions of the country that are experiencing droughts. There is a need for consistent, scientifically-valid documentation of the premining physical, chemical, and biological condition of streams and the impacts of mining and reclamation on those streams. All permits should include plans for stream protection or restoration that require use of best practices to either maintain the ecological condition of streams or restore both the physical form and the ecological function of affected streams. The proposed rule is sufficiently flexible to accommodate the different regions where coal is mined and the differences in streams found in those regions.

In addition, the proposed rule would address some concerns that commenters on the ANPRM expressed with respect to other provisions of our regulations that are not necessarily directly related to stream protection, but that are important in terms of protecting the hydrologic balance or better achieving other requirements and purposes of SMCRA. We also propose to reorganize, revise, and streamline our rules to improve their readability and internal consistency, to update or remove obsolete provisions, to remove redundant and unneeded provisions, to be consistent with court decisions, and to incorporate plain language principles.

VII. Why does the proposed rule include protective measures for ephemeral streams?

Unlike the regulations implementing the Clean Water Act, the existing regulations implementing SMCRA contain no specific protections for ephemeral streams. As summarized in Part II of this preamble, scientific studies completed since the enactment of SMCRA and the adoption of our existing rules have documented the importance of headwater streams, including ephemeral streams, in maintaining the ecological health and function of streams downgradient of headwater streams. EPA recently completed a literature review of the importance of headwater streams and published a report summarizing the findings of more than 1,200 peer-reviewed studies.[112] With some exceptions, the report generally does not differentiate between the various types of headwaters streams, which consist of a mix of perennial, intermittent, and ephemeral streams, but it does emphasize that ephemeral streams are an important component of headwaters streams and that they have an effect on the form and function of downstream channels and aquatic life. Consistent with the findings of this report and other studies, our proposed rule includes some protections for ephemeral streams, tailored to their hydrologic and ecological functions.

We also are considering adopting an alternative that would provide equal protection to all streams, without regard to whether the stream is perennial, intermittent, or ephemeral. We invite comment on whether we should adopt this alternative in the final rule and, if so, whether we should extend all the protections that this proposed rule would afford to perennial and intermittent streams to ephemeral streams or whether we should instead scale back those protections to avoid undue adverse impacts on the mining industry, while still providing improved environmental protection to all streams compared with the existing regulations.

A. What are the findings of the EPA report?

The report states that the evidence unequivocally demonstrates that the stream channels, riparian wetlands, floodplain wetlands, and open waters that together form river networks are clearly connected to downstream waters in ways that profoundly influence downstream water integrity. According to the authors, the body of literature documenting connectivity and downstream effects is most abundant for perennial and intermittent streams and for riparian and floodplain wetlands. However, the report states that, although less abundant, the evidence for connectivity and downstream effects of ephemeral streams is strong and compelling, particularly in context with the large body of evidence supporting the physical connectivity and cumulative effects of channelized flows that form and maintain stream networks.[113]

The report identifies five principal contributions of ephemeral streams: (1) Providing streamflow to larger streams; (2) conveying water into local storage compartments such as ponds, shallow aquifers, or streambanks that are important sources of water for maintenance of the baseflow in larger streams; (3) transporting sediment, woody debris, and nutrients; (4) providing the biological connectivity that is necessary either to support the life cycle of some invertebrates or to facilitate the transport of terrestrial invertebrates that serve as food resources in downstream communities; and (5) influencing fundamental biogeochemical processes such as the assimilation and transformation of nitrogen that may otherwise have detrimental impacts on downstream communities. The report's explanation of these contributions is summarized below. In addition, headwater streams, including ephemeral and intermittent streams, shape downstream channels by accumulating and gradually or episodically releasing stored materials such as sediment and large woody debris.[114] These materials help structure stream and river channels by slowing the flow of water through channels and providing substrate and habitat for aquatic organisms.[115]

Start Printed Page 44452

Providing Streamflow to Larger Streams

Ephemeral streams are hydrologically connected to downstream waters via channels that convey surface and subsurface water in direct response to precipitation. Moreover, these streams are the defining characteristic of many watersheds in arid and semi-arid regions of the United States; thus serving a critical role in the maintenance of water resources.[116]

Conveyance of Water Into Local Storage Compartments

Ephemeral streams may convey water to local storage compartments, such as ponds, shallow aquifers, and streambanks, and recharge regional alluvial aquifers, depending upon the frequency, duration, magnitude, and timing of precipitation events. These local storage compartments are important sources of water for maintaining baseflow in perennial streams. Streamflow typically depends on the delayed (i.e., lagged) release of shallow groundwater from local storage, especially during dry periods and in areas with shallow groundwater tables and pervious subsurfaces. Relative to their cumulative surface area, an inordinate amount of groundwater recharge occurs in headwater ephemeral and intermittent channels within arid drainage basins. Furthermore, in the southwestern United States, short-term shallow groundwater storage in alluvial floodplain aquifers, with gradual release into stream channels, is a major source of annual flow in rivers.[117]

Transport of Sediment and Nutrients

Ephemeral streams frequently contain boulders and woody debris that entrain and store loose, unconsolidated sediment during smaller precipitation events that is subsequently released during infrequent, high-magnitude precipitation events. Because of the abundance and distribution of headwater streams, sediment storage and transport by those streams can have a substantial cumulative effect on downstream waters; headwater streams are important sediment sources for maintaining channels and floodplains.[118] Similarly, headwater streams are important sources of organic matter (organic carbon) that serves as a downstream food source for aquatic life forms such as benthic macroinvertebrates and that enhances the fertility of agriculture on alluvial fans where some of the organic matter is deposited.[119]

Biological Connectivity

Headwaters streams, including ephemeral streams, play an important role in the dispersal of genetic material and production and transport of food resources. For example, headwaters streams provide habitat that is critical for completion of one or more life-cycle stages of many aquatic and semiaquatic species capable of moving throughout water networks. These streams provide habitat for completion of complex life cycles. They also provide a refuge from predators, competitors, parasites, or adverse physical conditions in downstream waters.[120]

Because biological connections often result from passive transport of organisms or their products with water flow, biological connectivity often depends on hydrologic connectivity. Many living organisms, however, also can actively move with or against water flow; others disperse actively or passively over land by walking, flying, drifting, or “hitchhiking.” All of these organism-mediated connections form the basis of biological connectivity between headwater streams and downstream waters. Biological connections between upstream and downstream reaches can affect downstream waters via multiple pathways or functions. For organisms capable of significant upstream movement, headwater streams, including ephemeral and intermittent streams, can increase both the amount and quality of habitat available to those organisms. Many organisms require different habitats for different resources (e.g., food, spawning habitat, overwintering habitat), and thus move throughout the river network—both longitudinally and laterally—over their life cycles, with some requiring dry channels to complete part of their life cycle. Furthermore, dry stream channels can facilitate dispersal of aquatic invertebrates by serving as dispersal corridors for terrestrial adult forms. Headwater streams also provide food resources to downstream waters, especially in the form of terrestrial invertebrates that accumulate in intermittent and ephemeral streams during dry periods and are then transported downstream by storm flows during and after a precipitation event.[121]

Biogeochemical Processes

There is strong evidence that headwater streams function as nitrogen sources (via export) and sinks (via uptake and transformation) for river networks. For example, one study estimated that rapid cycling of nutrients, including nitrogen, in small streams with no agricultural or urban impacts removed 20-40% of the nitrogen that otherwise would be delivered to downstream waters. Nutrients, including nitrogen, are necessary to support aquatic life, but excess nutrients lead to eutrophication and hypoxia, in which over-enrichment causes dissolved oxygen concentrations to fall below the level necessary to sustain most aquatic animal life in the stream and streambed. Thus, the influence of streams on nutrient loads can have significant repercussions for hypoxia in downstream waters.[122]

B. What specific rule changes are we proposing with respect to ephemeral streams?

We propose to require that the permit applicant identify and map all ephemeral streams within the proposed permit and adjacent areas. The applicant must describe the physical and hydrologic characteristics of those streams in detail, as well as any associated vegetation in the riparian zone if one exists. In addition, the applicant must assess the biological condition of a representative sample of those ephemeral streams. See proposed 30 CFR 780.19(c)(6) and 784.19(c)(6).

We also propose to require that the significance of ephemeral streams be evaluated during the permitting process as part of the determination of the probable hydrologic consequences of mining and the cumulative hydrologic impact assessment. See proposed 30 CFR 780.20, 780.21, 784.20, and 784.21.

We further propose to specify that the backfilling and grading plan in the reclamation plan required by proposed 30 CFR 780.12(d) and 784.12(d) must include contour maps, cross-sections, or models that show in detail the anticipated final surface configuration, including drainage patterns, of the proposed permit area. Proposed 30 CFR 780.28(c)(1) and 784.28(c)(1) would require that the postmining drainage pattern, including ephemeral streams, be similar to the premining drainage pattern, with limited exceptions.Start Printed Page 44453

Under proposed 30 CFR 780.28(b)(3) and 784.28(b)(3), the reclamation plan for an operation that proposes to disturb a perennial, intermittent, or ephemeral stream, or the surface of land within 100 feet of that stream, must include the planting of native species, including, when appropriate, species adapted to and suitable for planting in riparian zones, within a corridor at least 100 feet in width on each side of the stream as part of the reclamation process following the completion of mining activities. The riparian corridor requirement would not apply to prime farmland or when a corridor would be inconsistent with an approved postmining land use that is actually implemented before expiration of the revegetation responsibility period. Nor would it apply to stream segments that are buried beneath an excess spoil fill or a coal mine waste disposal facility.

VIII. Overview and Tabular Summaries of Proposed Revisions and Organizational Changes

The following derivation tables summarize the organizational changes in the proposed rule, relative to the existing rules. They also indicate whether we propose to revise the rule text in each redesignated section or paragraph. The organizational changes serve several purposes, including—

  • Breaking up overly long sections and paragraphs into multiple shorter sections and paragraphs for ease of reference and improved comprehension.
  • Renumbering sections in the underground mining rules to align their numbering with the corresponding sections in the surface mining rules. This change would greatly improve ease of reference and the user-friendliness of our rules.
  • Moving permitting requirements from subchapter K (performance standards) to subchapter G to consolidate permitting requirements in subchapter G.
  • Restructuring subchapter G to better distinguish between baseline information requirements and reclamation plan requirements.
  • Removing redundant, suspended, and obsolete provisions.

The following table is organized in the numerical order of the existing rule citations. It includes only those provisions of the existing regulations that we propose to move or remove.

Existing ruleProposed redesignationExisting text revised in proposed rule?
§ 700.11(d)(1)(i)§ 700.11(d)(1)Yes, editorial.
§ 700.11(d)(1)(ii)§ 700.11(d)(2)Yes.
§ 700.11(d)(2)§ 700.11(d)(3)Yes.
§ 701.5 [paragraphs (a) and (b) of definition of “replacement of water supply”]§§ 816.40 and 817.40Yes.
§ 773.7(a) [last sentence]§ 773.7(b)(1)Yes, editorial.
§ 773.7(b)§ 773.7(c)Yes, editorial.
§ 773.15(n)§ 773.15(m)No.
§ 777.13(a)§ 777.13(a)(1)Yes.
§ 777.13(b)§ 777.13(a)(2)Yes, editorial.
§ 779.11NoneProposed for removal; redundant of remainder of part 779.
§ 779.12(a)NoneProposed for removal; redundant of proposed § 779.24(a)(3).
§ 779.12(b)§ 779.17Yes, editorial.
§ 779.24(a) through (f)§ 779.24(a)(1) through (a)(6)Yes.
§ 779.24(g)§ 779.24(a)(10)Yes.
§ 779.24(h) through (k)§ 779.24(a)(14) through (a)(17)No, except for editorial changes in (a)(17).
§ 779.24(l)§ 779.24(a)(28)No.
§ 779.25(a)(1)§ 779.24(a)(18)Yes.
§ 779.25(a)(2)§ 779.24(a)(20)Yes.
§ 779.25(a)(3)§ 779.24(a)(21)Yes.
§ 779.25(a)(4)§ 779.24(a)(22)No.
§ 779.25(a)(5)§ 779.24(a)(23) and (a)(24)Yes, editorial.
§ 779.25(a)(6)§ 779.24(a)(19)Yes.
§ 779.25(a)(7)§ 779.24(a)(9)Yes, editorial.
§ 779.25(a)(8)§ 779.24(a)(25)No.
§ 779.25(a)(9)§ 779.24(a)(26)Yes.
§ 779.25(a)(10)§ 779.24(a)(8) [water wells], § 779.24(a)(27) [gas and oil wells]Yes.
§ 780.12§ 780.14Yes, editorial.
§ 780.13§ 780.15Yes.
§ 780.14§ 780.13Yes.
§ 780.15NoneProposed for removal as obsolete.
§ 780.16(a)§ 779.20(a) through (c)Yes.
§ 780.16(b)§ 780.16(a) through (d)Yes.
§ 780.16(c)§ 779.20(d), § 780.16(e)Yes.
§ 780.18 [in general]§ 780.12 [in general]Yes.
§ 780.18(b)(1)§ 780.12(b)Yes.
§ 780.18(b)(2)§ 780.12(c)Yes.
§ 780.18(b)(3)§ 780.12(d)Yes.
§ 780.18(b)(4)§ 780.12(e) [in general]Yes.
§ 780.18(b)(5)§ 780.12(g) [in general]Yes.
§ 780.18(b)(6)§ 780.12(i)Yes, editorial.
§ 780.18(b)(7)§ 780.12(j)Yes.
§ 780.18(b)(8)§ 780.12(k)Yes, editorial.
§ 780.18(b)(9)§ 780.12(l)Yes, editorial.
§ 780.21(a)§ 777.13(b)Yes.
§ 780.21(b)(1) [location and ownership information in first sentence]§ 779.24(a)(7)Yes, editorial.
Start Printed Page 44454
§ 780.21(b)(1) [except location and ownership information in first sentence]§ 780.19(b)Yes.
§ 780.21(b)(2) [first part of first sentence through “impoundments”]§ 779.24(a)(9)Yes, editorial.
§ 780.21(b)(2) [the part of the first sentence that pertains to discharges]§ 779.24(a)(12)Yes, editorial.
§ 780.21(b)(2) [except the part of the first sentence that precedes “and information on . . .”]§ 780.19(c)Yes.
§ 780.21(b)(3)§ 780.20(b)Yes.
§ 780.21(c)§ 780.19(g)Yes.
§ 780.21(d)§ 777.13(d)Yes.
§ 780.21(e)§ 780.22(b)(1)Yes.
§ 780.21(f)(1) through (f)(3)§ 780.20(a)Yes.
§ 780.21(f)(4)§ 780.20(c)(1)Yes.
§ 780.21(g)§ 780.21Yes.
§ 780.21(h)§ 780.22(a)Yes.
§ 780.21(i)§ 780.23(a)Yes.
§ 780.21(j)§ 780.23(b)Yes.
§ 780.22(a)§ 780.19(a)(1)Yes.
§ 780.22(b)§ 780.19(f)(1) through (3)Yes.
§ 780.22(c)§ 780.19(f)(4)Yes, editorial.
§ 780.22(d)§ 780.19(f)(5)Yes, editorial.
§ 780.23(a)§ 779.22Yes.
§ 780.23(b) [except (b)(3)]§ 780.24(a)Yes.
§ 780.23(b)(3)§ 780.12(m)Yes, editorial.
§ 780.29§ 780.29(c)Yes.
§ 780.35(a)§ 780.35(f) and (h)Yes, editorial.
§ 780.35(b)§ 780.35(g)Yes.
§ 780.35(c)§ 780.35(i)Yes, editorial.
§ 783.11NoneProposed for removal; redundant of remainder of part 783.
§ 783.12(a)NoneProposed for removal; redundant of proposed § 783.24(a)(3).
§ 783.12(b)§ 783.17Yes, editorial.
§ 783.24(a) through (f)§ 783.24(a)(1) through (a)(6)Yes.
§ 783.24(g)§ 783.24(a)(10)Yes.
§ 783.24(h) through (k)§ 783.24(a)(14) through (a)(17)No, except for editorial changes in (a)(17).
§ 783.24(l)§ 783.24(a)(28)No.
§ 783.25(a)(1)§ 783.24(a)(18)Yes.
§ 783.25(a)(2)§ 783.24(a)(20)Yes.
§ 783.25(a)(3), [Suspended August 4, 1980]§ 783.24(a)(21)Yes. We are re-proposing part of this rule and proposing to remove the remainder.
§ 783.25(a)(4)§ 783.24(a)(22)Yes.
§ 783.25(a)(5)§ 783.24(a)(23) and (a)(24)Yes.
§ 783.25(a)(6)§ 783.24(a)(19)Yes.
§ 783.25(a)(7)§ 783.24(a)(9)Yes, editorial.
§ 783.25(a)(8), [Suspended August 4, 1980]§ 783.24(a)(25)Yes, editorial. We are re-proposing this rule.
§ 783.25(a)(9), [Suspended August 4, 1980]§ 783.24(a)(26)Yes. We are re-proposing part of this rule and proposing to remove the remainder.
§ 783.25(a)(10)§ 783.24(a)(8) [water wells], § 783.24(a)(27) [gas and oil wells]Yes.
§ 784.12§ 784.14Yes, editorial.
§ 784.13 [in general]§ 784.12 [in general]Yes.
§ 784.13(b)(1)§ 784.12(b)Yes.
§ 784.13(b)(2)§ 784.12(c)Yes.
§ 784.13(b)(3)§ 784.12(d)Yes.
§ 784.13(b)(4)§ 784.12(e) [in general]Yes.
§ 784.13(b)(5)§ 784.12(g) [in general]Yes.
§ 784.13(b)(6)§ 784.12(i)Yes, editorial.
§ 784.13(b)(7)§ 784.12(j)Yes.
§ 784.13(b)(8)§ 784.12(k)Yes, editorial.
§ 784.13(b)(9)§ 784.12(l)Yes, editorial.
§ 784.14(a)§ 777.13(b)Yes.
§ 784.14(b)(1) [location and ownership information in first sentence]§ 783.24(a)(7)Yes, editorial.
§ 784.14(b)(1) [except location and ownership information in first sentence]§ 784.19(b)Yes.
§ 784.14(b)(2) [the part of the first sentence that precedes “impoundments”]§ 783.24(a)(9)Yes, editorial.
§ 784.14(b)(2) [the part of the first sentence that pertains to discharges]§ 783.24(a)(12)Yes, editorial.
Start Printed Page 44455
§ 784.14(b)(2) [except the part of the first sentence that precedes “and information on . . .”]§ 784.19(c)Yes.
§ 784.14(b)(3)§ 784.20(b)Yes
§ 784.14(c)§ 784.19(g)Yes.
§ 784.14(d)§ 777.13(d)Yes.
§ 784.14(e)(1) through (e)(3)§ 784.20(a)Yes.
§ 784.14(e)(4)§ 784.20(c)(1)Yes.
§ 784.14(f)§ 784.21Yes.
§ 784.14(g)§ 784.22(a)Yes.
§ 784.14(h)§ 784.23(a)Yes.
§ 784.14(i)§ 784.23(b)Yes.
§ 784.15(a)§ 783.22Yes.
§ 784.15(b) [except (b)(3)]§ 784.24(a)Yes.
§ 784.15(b)(3)§ 784.12(m)Yes, editorial.
§ 784.17§ 784.31No.
§ 784.18§ 784.33No.
§ 784.19§ 784.35Yes.
§ 784.20§ 784.30Yes.
§ 784.21(a)§ 783.20(a) and (b)Yes.
§ 784.21(b)§ 784.16(a) through (d)Yes.
§ 784.21(c)§ 783.20(d), § 784.16(e)Yes.
§ 784.22(a)§ 784.19(a)(1)Yes.
§ 784.22(b)§ 784.19(f)(1) through (4)Yes.
§ 784.22(c)§ 784.19(f)(5)Yes, editorial.
§ 784.22(d)§ 784.19(f)(6)Yes, editorial.
§ 784.23§ 784.13Yes.
§ 784.24§ 784.37Yes.
§ 784.25§ 784.26Yes, editorial.
§ 784.26§ 784.12(f)Yes.
§ 784.29§ 784.29(c)Yes
§ 784.30§ 784.38Yes, editorial.
§ 784.200(a)§ 784.24(c)Yes.
§ 785.14(b)§ 701.5 [definition of “mountaintop removal mining”]Yes, editorial.
§ 785.14(c) [introductory text]§ 785.14(b) [introductory text]Yes, editorial.
§ 785.14(c)(1) [introductory text]§ 785.14(b)(1)Yes, editorial.
§ 785.14(c)(1)(i)§ 785.14(b)(2)Yes, editorial.
§ 785.14(c)(1)(ii)§ 785.14(b)(3)Yes, editorial.
§ 785.14(c)(1)(iii) [except paragraph (c)(1)(iii)(G)]§ 785.14(b)(4)Yes, editorial.
§ 785.14(c)(1)(iii)(G)§ 785.14(b)(5)Yes, editorial.
§ 785.14(c)(1)(iv)§ 785.14(b)(6)Yes, editorial.
§ 785.14(c)(1)(v)§ 785.14(b)(7)Yes, editorial.
§ 785.14(c)(2)§ 785.14(b)(8)Yes, editorial.
§ 785.14(c)(3)NoneProposed for removal as unnecessary.
§ 785.14(c)(4)§ 785.14(b)(12)Yes, editorial.
§ 785.14(c)(5)§ 785.14(c)Yes.
§ 785.14(d)(1) and (2)§ 785.14(d)(1)Yes.
§ 785.14(d)(3)§ 785.14(d)(2)Yes, editorial.
§ 785.16(a) [introductory text]§ 785.16(a) (introductory text)Yes, editorial.
§ 785.16(a)(1)§ 785.16(a)(1)Yes, editorial.
§ 785.16(a)(2)§ 785.16(a)(2)Yes, editorial.
§ 785.16(a)(3)§ 785.16(a)(9)Yes.
§ 785.16(a)(4)§ 785.16(a)(10)Yes.
§ 785.16(b)(1)NoneProposed for removal as unnecessary.
§ 785.16(b)(2)§ 785.16(b)(1)Yes, editorial.
§ 785.16(c) and (d)§ 785.16(b)(2)Yes.
§ 785.16(e)§ 785.16(b)(3)Yes, editorial.
§ 785.16(f)§ 785.16(b)(4)Yes, editorial.
§ 785.25(b) [first sentence]§ 785.25(b)(1)Yes, editorial.
§ 785.25(b) [except first sentence]§ 785.16(b)(2)Yes, editorial.
§ 800.11(e)§ 800.9Yes.
§ 800.11(a) through (d)§ 800.11Yes, editorial.
§ 800.15(c) [first sentence]§ 800.15(a)(2)(ii)Yes, editorial.
§ 800.16(e)(2)§ 800.30(b)Yes.
§ 800.17NoneProposed for removal; redundant of remainder of part 800.
§ 800.30(a)§ 800.30(a)(1)Yes.
§ 800.30(b)§ 800.30(a)(3)Yes.
§ 800.40(a)§ 800.40Yes, editorial, except for (b)(2)(vi), which has substantive changes.
§ 800.40(b)(1)§ 800.41Yes, editorial, except for (a)(2), which has substantive changes.
Start Printed Page 44456
§ 800.40(b)(2)§ 800.43(a)Yes, editorial.
§ 800.40(c)§ 800.42Yes.
§ 800.40(d)§ 800.43(b)Yes, editorial.
§ 800.40(e)§ 800.43(c)Yes, editorial.
§ 800.40(f) through (h)§ 800.44(a) through (c)Yes, editorial.
§ 816.13§ 816.13(a), (c), (d), and (f)Yes, editorial.
§ 816.14§ 816.13(b)Yes, editorial.
§ 816.15§ 816.13(e)Yes, editorial.
§ 816.22(a)(1) through (4)§ 816.22(a)(1) and (2)Yes.
§ 816.22(b)§ 780.12(e)(2), § 816.22(c)Yes.
§ 816.22(c)§ 816.22(b)Yes.
§ 816.22(d)(1)§ 816.22(e)(1)Yes.
§ 816.22(d)(2)§ 816.22(d)(2)Yes, editorial.
§ 816.22(d)(3)§ 816.22(e)(3)Yes, editorial.
§ 816.22(d)(4)NoneProposed for removal; covered by proposed § 780.12(g)(1)(iii).
§ 816.22(e)§ 780.12(e)(1)(ii)Yes.
§ 816.41(a), (b), and (d)§ 816.34(a) through (c)Yes.
§ 816.41(c)§ 816.35Yes.
§ 816.41(e)§ 816.36Yes.
§ 816.41(f)§ 816.38Yes.
§ 816.41(g)§ 816.39Yes.
§ 816.41(h)§ 816.40Yes.
§ 816.41(i)§ 816.41Yes.
§ 816.42§ 816.42(a)Yes.
§ 816.43(a)(3) [last sentence], § 816.43(b)§ 780.28(c), § 816.57(b)Yes.
§ 816.43(c)(3)Merged into § 816.43(a)(5)(ii)Yes.
§ 816.46(b)(2), [Suspended December 22, 1986]NoneProposed for removal.
§ 816.46(c)(1)(i)NoneProposed for removal as unnecessary.
§ 816.46(c)(1)(ii) and (iii)§ 816.46(c)(1)(i) and (ii)Yes.
§ 816.57(a) [first sentence]§ 816.57(a)(1)Yes.
§ 816.57(a) [except first sentence]§ 780.28(e)(2)Yes
§ 816.57(b)Merged into § 816.11(e)Yes, editorial.
§ 816.71(b)(1)§ 780.35(f) and (j)Yes, editorial.
§ 816.71(b)(2)§ 816.71(b)(1)Yes, editorial.
§ 816.71(c)§ 780.35(e)(2) and (3)Yes.
§ 816.71(d)(1)§ 780.35(g)(1) and (4)Yes.
§ 816.71(d)(2) [first sentence]§ 816.71(b)(2)Yes.
§ 816.71(d)(2) [second sentence]Merged into § 780.35(i)Yes, editorial.
§ 816.71(e)(1)§ 816.71(d)Yes.
§ 816.71(e)(2)§ 816.71(g)(1)Yes.
§ 816.71(e)(3)§ 816.71(h)Yes.
§ 816.71(e)(4)§ 816.71(i)Yes.
§ 816.71(e)(5)§ 816.71(g)(3)Yes, editorial.
§ 816.71(g)§ 816.71(j)Yes, editorial.
§ 816.71(h)§ 816.71(k)Yes.
§ 816.71(i)§ 816.71(l)Yes.
§ 816.71(j)§ 816.71(m)Yes, editorial.
§ 816.72(a)(1)§ 816.71(e)(2)Yes, editorial.
§ 816.72(a)(2)§ 816.71(e)(1)Yes.
§ 816.72 [except paragraph (a)]NoneProposed for removal.
§ 816.73NoneProposed for removal.
§ 816.74(c) [first sentence]§ 816.74(c)(1)Yes, editorial.
§ 816.74(c) [second sentence]§ 816.74(c)(2)Yes, editorial.
§ 816.74(c) [third sentence]§ 816.74(d)(1)Yes, editorial.
§ 816.74(c) [fourth sentence]§ 816.74(d)(2)Yes, editorial.
§ 816.74(d) [except (d)(4)]§ 816.74(e)Yes.
§ 816.74(d)(4)§ 816.74(c)(3)Yes.
§ 816.74(e)§ 816.74(f)Yes, editorial.
§ 816.74(f)§ 816.74(g)Yes, editorial.
§ 816.74(g)§ 816.74(h)Yes, editorial.
§ 816.74(h)NoneProposed for removal.
§ 816.81(a) [first sentence]§ 816.81(a)Yes, editorial.
§ 816.81(a) [except first sentence]§ 816.81(b)Yes.
§ 816.81(b)§ 816.81(c)Yes, editorial.
§ 816.81(c)§ 816.81(d)Yes.
§ 816.81(d)§ 816.81(e)Yes, editorial.
§ 816.81(e)§ 816.81(g)Yes, editorial.
§ 816.81(f)§ 816.81(h)Yes, editorial.
§ 816.83 [introductory text]§ 816.83(a)Yes, editorial.
§ 816.83(a)§ 816.83(b)Yes.
§ 816.83(b)§ 816.83(c)Yes, editorial.
§ 816.83(c)§ 816.83(d)Yes.
Start Printed Page 44457
§ 816.83(d)§ 816.83(e)Yes, editorial.
§ 816.84 [introductory text]§ 816.84(a)Yes, editorial.
§ 816.84(a)§ 816.84(b)Yes, editorial.
§ 816.84(b)§ 816.84(c)Yes, editorial.
§ 816.84(c)§ 816.84(d)Yes, editorial.
§ 816.84(d)§ 816.84(e)Yes.
§ 816.84(e)§ 780.25(d)(3)(iv)Yes, editorial.
§ 816.97(d)§ 816.97(b)(5) and (c)(4)Yes, editorial.
§ 816.97(e)§ 816.97(d)Yes.
§ 816.97(f)§ 816.97(e)Yes.
§ 816.97(g)§ 816.97(f)Yes.
§ 816.97(h)§ 816.97(g)Yes.
§ 816.101 [Suspended August 31, 1992]NoneProposed for removal.
§ 816.102(a)(2)§ 816.102(a)(3) [introductory text]Yes.
§ 816.102(a)(3)§ 816.102(a)(4)No.
§ 816.102(a)(4)§ 816.102(a)(5)Yes.
§ 816.102(a)(5)§ 816.102(a)(6)No.
§ 816.102(b)§ 816.102(b) [introductory text] and (b)(1)Yes, editorial.
§ 816.102(d)§ 816.102(b)(3)Yes.
§ 816.102(f)§ 816.102(d)Yes.
§ 816.102(g)§ 816.102(a)(2)Yes.
§ 816.102(h)§ 816.102(a)(3)(i)Yes.
§ 816.102(i)§ 816.102(a)(3)(ii)Yes.
§ 816.102(j)§ 816.102(f)Yes.
§ 816.102(k)(1)§ 816.102(a)(1)(iii)Yes, editorial.
§ 816.102(k)(2)§ 816.102(a)(1)(iv)Yes, editorial.
§ 816.102(k)(3)(i)§ 816.102(a)(1)(i)Yes, editorial.
§ 816.102(k)(3)(ii)§ 816.102(a)(1)(ii)Yes, editorial.
§ 816.102(k)(3)(iii)§ 816.102(a)(1)(v)Yes, editorial.
§ 816.111(a) [except (a)(2) and (a)(4)]§ 816.111(a) and (b)Yes.
§ 816.111(a)(2)§ 780.12(g)(3)(i)Yes.
§ 816.111(a)(4)§ 780.12(g)(3)(ii)Yes.
§ 816.111(b)(1)§ 780.12(g)(3)(iii)No.
§ 816.111(b)(2)§ 780.12(g)(3)(iv)Yes.
§ 816.111(b)(3)§ 780.12(g)(3)(v)Yes, editorial.
§ 816.111(b)(4)§ 780.12(g)(3)(vi)No.
§ 816.111(b)(5)§ 780.12(g)(3)(vii)Yes, editorial.
§ 816.111(c)§ 780.12(g)(4)Yes.
§ 816.111(d)§ 780.12(g)(5)Yes, editorial.
§ 816.113§ 816.111(e)Yes.
§ 816.114§ 816.111(d)Yes.
§ 816.116(a) [introductory text]§ 816.116(b)Yes.
§ 816.116(a)(1)§ 816.116(a)Yes, editorial.
§ 816.116(a)(2) [first sentence]§ 816.116(c)Yes.
§ 816.116(a)(2) [second sentence]§ 816.116(d)Yes, editorial.
§ 816.116(b) [introductory text], (b)(1), (b)(2), and introductory text of (b)(3)NoneProposed for removal; superseded by remainder of proposed § 816.116.
§ 816.116(b)(3)(i)§ 816.116(e)Yes.
§ 816.116(b)(3)(ii)§ 816.116(f)(1) and (f)(2)Yes.
§ 816.116(b)(3)(iii)§ 816.116(f)(3)Yes.
§ 816.116(b)(4)§ 816.116(g)Yes.
§ 816.116(b)(5)§ 816.116(h)Yes, editorial.
§ 816.116(c)§ 816.115Yes.
§ 816.133(a) [introductory text]§ 816.133 [introductory text]Yes, editorial.
§ 816.133(a)(1)§ 816.133(a)Yes, editorial.
§ 816.133(a)(2)§ 816.133(b)Yes, editorial.
§ 816.133(b) [first sentence]§ 780.24(b)Yes.
§ 816.133(b) [last sentence]§ 780.24(e)Yes.
§ 816.133(c)§ 780.24(b)Yes.
§ 816.133(d)(1)NoneProposed for removal; redundant of § 785.16(a).
§ 816.133(d)(2)§ 785.16(a)(2)Yes, editorial.
§ 816.133(d)(3)NoneProposed for removal as unnecessary and duplicative.
§ 816.133(d)(4)§ 785.16(a)(3)Yes, editorial.
§ 816.133(d)(5)§ 785.16(a)(5)Yes, editorial.
§ 816.133(d)(6)§ 785.16(a)(9)Yes.
§ 816.133(d)(7)§ 785.16(a)(6)Yes, editorial.
§ 816.133(d)(8)§ 785.16(a)(7)Yes, editorial.
§ 816.133(d)(9)§ 785.16(a)(10)Yes, editorial.
§ 816.133(d)(10)§ 785.16(a)(4)Yes, editorial.
§ 816.200NoneProposed for removal as obsolete.
§ 817.13§ 817.13(a), (d), (e), and (g)Yes, editorial.
§ 817.14(a)§ 817.13(b)Yes, editorial.
Start Printed Page 44458
§ 817.14(b)§ 817.13(c)Yes, editorial.
§ 817.15§ 817.13(f)Yes, editorial.
§ 817.22(a)(1) through (4)§ 817.22(a)(1) and (2)Yes.
§ 817.22(b)§ 784.12(e)(2), § 817.22(c)Yes.
§ 817.22(c)§ 817.22(b)Yes.
§ 817.22(d)(1)§ 817.22(e)(1)Yes.
§ 817.22(d)(2)§ 817.22(d)(2)Yes, editorial.
§ 817.22(d)(3)§ 817.22(e)(3)Yes, editorial.
§ 817.22(d)(4)NoneProposed for removal; covered by proposed § 784.12(g)(1)(iii).
§ 817.22(e)§ 784.12(e)(1)(ii)Yes.
§ 817.41(a), (b), and (d)§ 817.34(a) through (c)Yes.
§ 817.41(c)§ 817.35Yes.
§ 817.41(e)§ 817.36Yes.
§ 817.41(f)§ 817.38Yes.
§ 817.41(g)§ 817.39Yes.
§ 817.41(j)§ 817.40Yes.
§ 817.41(h)§ 817.41Yes.
§ 817.41(i)§ 817.44Yes, editorial.
§ 817.42§ 817.42(a)Yes.
§ 817.43(a)(3) [last sentence], § 817.43(b)§ 784.28(c), § 817.57(b)Yes.
§ 817.43(c)(3)Merged into § 817.43(a)(5)(ii)Yes.
§ 817.46(b)(2) [Suspended December 22, 1986]NoneProposed for removal.
§ 817.46(c)(1)(i)NoneProposed for removal as unnecessary.
§ 817.46(c)(1)(ii) and (iii)§ 817.46(c)(1)(i) and (ii)Yes.
§ 817.57(a) [first sentence]§ 817.57(a)(1)Yes.
§ 817.57(a) [except first sentence]§ 784.28(e)(2)Yes.
§ 817.57(b)Merged into § 817.11(e)Yes, editorial.
§ 817.71(b)(1)§ 784.35(f) and (j)Yes, editorial.
§ 817.71(b)(2)§ 817.71(b)(1)Yes, editorial.
§ 817.71(c)§ 784.35(e)(2) and (3)Yes.
§ 817.71(d)(1)§ 784.35(g)(1) and (4)Yes.
§ 817.71(d)(2) [first sentence]§ 817.71(b)(2)Yes.
§ 817.71(d)(2) [second sentence]Merged into § 784.35(i)Yes, editorial.
§ 817.71(e)(1)§ 817.71(d)Yes.
§ 817.71(e)(2)§ 817.71(g)(1)Yes.
§ 817.71(e)(3)§ 817.71(h)Yes.
§ 817.71(e)(4)§ 817.71(i)Yes.
§ 817.71(e)(5)§ 817.71(g)(3)Yes, editorial.
§ 817.71(g)§ 817.71(j)Yes.
§ 817.71(h)§ 817.71(k)Yes.
§ 817.71(i)§ 817.71(l)Yes.
§ 817.71(j)§ 817.71(m)Yes, editorial.
§ 817.72(a)(1)§ 817.71(e)(2)Yes, editorial.
§ 817.72(a)(2)§ 817.71(e)(1)Yes.
§ 817.72 [except paragraph (a)]NoneProposed for removal.
§ 817.73NoneProposed for removal.
§ 817.74(c) [first sentence]§ 817.74(c)(1)Yes, editorial.
§ 817.74(c) [second sentence]§ 817.74(c)(2)Yes, editorial.
§ 817.74(c) [third sentence]§ 817.74(d)(1)Yes, editorial.
§ 817.74(c) [fourth sentence]§ 817.74(d)(2)Yes, editorial.
§ 817.74(d) [except (d)(4)]§ 817.74(e)Yes.
§ 817.74(d)(4)§ 817.74(c)(3)Yes.
§ 817.74(e)§ 817.74(f)Yes, editorial.
§ 817.74(f)§ 817.74(g)Yes, editorial.
§ 817.74(g)§ 817.74(h)Yes, editorial.
§ 817.74(h)NoneProposed for removal.
§ 817.81(a) [first sentence]§ 817.81(a)Yes, editorial.
§ 817.81(a) [except first sentence]§ 817.81(b)Yes.
§ 817.81(b)§ 817.81(c)Yes, editorial.
§ 817.81(c)§ 817.81(d)Yes.
§ 817.81(d)§ 817.81(e)Yes.
§ 817.81(e)§ 817.81(g)Yes, editorial.
§ 817.81(f)§ 817.81(h)Yes, editorial.
§ 817.83 [introductory text]§ 817.83(a)Yes, editorial.
§ 817.83(a)§ 817.83(b)Yes.
§ 817.83(b)§ 817.83(c)Yes, editorial.
§ 817.83(c)§ 817.83(d)Yes.
§ 817.83(d)§ 817.83(e)Yes, editorial.
§ 817.84 [introductory text]§ 817.84(a)Yes, editorial.
§ 817.84(a)§ 817.84(b)Yes, editorial.
§ 817.84(b)§ 817.84(c)Yes, editorial.
§ 817.84(c)§ 817.84(d)Yes, editorial.
Start Printed Page 44459
§ 817.84(d)§ 817.84(e)Yes.
§ 817.84(e)§ 784.25(d)(3)(iv)Yes, editorial.
§ 817.97(d)§ 817.97(b)(5) and (c)(4)Yes, editorial.
§ 817.97(e)§ 817.97(d)Yes.
§ 817.97(f)§ 817.97(e)Yes.
§ 817.97(g)§ 817.97(f)Yes.
§ 817.97(h)§ 817.97(g)Yes.
§ 817.102(a)(2)§ 817.102(a)(3) [introductory text]Yes.
§ 817.102(a)(3)§ 817.102(a)(4)No.
§ 817.102(a)(4)§ 817.102(a)(5)Yes.
§ 817.102(a)(5)§ 817.102(a)(6)No.
§ 817.102(b)§ 817.102(b) [introductory text] and (b)(1)Yes, editorial.
§ 817.102(d)§ 817.102(b)(2)Yes.
§ 817.102(f)§ 817.102(d)Yes.
§ 817.102(g)§ 817.102(a)(2)Yes.
§ 817.102(h)§ 817.102(a)(3)(i)Yes.
§ 817.102(i)§ 817.102(a)(3)(ii)Yes.
§ 817.102(j)§ 817.102(f)Yes.
§ 817.102(k)(1)§ 817.102(a)(1)(i)Yes, editorial.
§ 817.102(k)(2)§ 817.102(a)(1)(ii)Yes, editorial.
§ 817.102(l)§ 817.102(a)(1)(vii)Yes.
§ 817.111(a) [except (a)(2) and (a)(4)]§ 817.111(a) and (b)Yes.
§ 817.111(a)(2)§ 784.12(g)(3)(i)Yes.
§ 817.111(a)(4)§ 784.12(g)(3)(ii)Yes.
§ 817.111(b)(1)§ 784.12(g)(3)(iii)No.
§ 817.111(b)(2)§ 784.12(g)(3)(iv)Yes.
§ 817.111(b)(3)§ 784.12(g)(3)(v)Yes, editorial.
§ 817.111(b)(4)§ 784.12(g)(3)(vi)No.
§ 817.111(b)(5)§ 784.12(g)(3)(vii)Yes, editorial.
§ 817.111(c)§ 784.12(g)(4)Yes.
§ 817.111(d)§ 784.12(g)(5)Yes, editorial.
§ 817.113§ 817.111(e)Yes.
§ 817.114§ 817.111(d)Yes.
§ 817.116(a) [introductory text]§ 817.116(b)Yes.
§ 817.116(a)(1)§ 817.116(a)Yes, editorial.
§ 817.116(a)(2) [first sentence]§ 817.116(c)Yes.
§ 817.116(a)(2) [second sentence]§ 817.116(d)Yes, editorial.
§ 817.116(b) [introductory text], (b)(1), (b)(2), and introductory text of (b)(3)NoneProposed for removal; superseded by remainder of proposed § 817.116.
§ 817.116(b)(3)(i)§ 817.116(e)Yes.
§ 817.116(b)(3)(ii)§ 817.116(f)(1) and (f)(2)Yes.
§ 817.116(b)(3)(iii)§ 817.116(f)(3)Yes.
§ 817.116(b)(4)§ 817.116(g)Yes.
§ 817.116(b)(5)§ 817.116(h)Yes, editorial.
§ 817.116(c)§ 817.115Yes.
§ 817.121(c)(1)§ 817.121(c)Yes, editorial.
§ 817.121(c)(2)§ 817.121(d)Yes, editorial.
§ 817.121(c)(3)§ 817.121(e)Yes, editorial.
§ 817.121(c)(4)(i) through (c)(4)(iv) [Suspended December 22, 1999]NoneProposed for removal.
§ 817.121(c)(4)(v)§ 817.121(f)Yes, editorial.
§ 817.121(c)(5)§ 817.121(g)Yes.
§ 817.121(d)§ 817.121(h)Yes, editorial.
§ 817.121(e)§ 817.121(i)Yes, editorial.
§ 817.121(f)§ 817.121(j)Yes, editorial
§ 817.121(g)§ 817.121(k)Yes, editorial.
§ 817.133(a) [introductory text]§ 817.133 [introductory text]Yes, editorial.
§ 817.133(a)(1)§ 817.133(a)Yes, editorial.
§ 817.133(a)(2)§ 817.133(b)Yes, editorial.
§ 817.133(b) [first sentence]§ 784.24(b)Yes.
§ 817.133(b) [last sentence]§ 784.24(e)Yes.
§ 817.133(c)§ 784.24(b)Yes.
§ 817.133(d)(1)NoneProposed for removal; redundant of § 785.16(a).
§ 817.133(d)(2)§ 785.16(a)(2)Yes, editorial.
§ 817.133(d)(3)NoneProposed for removal as unnecessary and duplicative.
§ 817.133(d)(4)§ 785.16(a)(3)Yes, editorial.
§ 817.133(d)(5)§ 785.16(a)(5)Yes, editorial.
§ 817.133(d)(6)§ 785.16(a)(9)Yes.
§ 817.133(d)(7)§ 785.16(a)(6)Yes, editorial.
§ 817.133(d)(8)§ 785.16(a)(7)Yes, editorial.
§ 817.133(d)(9)§ 785.16(a)(10)Yes, editorial.
§ 817.133(d)(10)§ 785.16(a)(4)Yes, editorial.
Start Printed Page 44460
§ 817.200 [except paragraph (d)(1)]NoneProposed for removal as obsolete.
§ 817.200(d)(1)§ 784.24(c)Yes.
§ 824.11(a) [introductory text] and (a)(1)§ 824.11(a)Yes, editorial.
§ 824.11(a)(2) and (a)(3)§ 701.5 [definition of “mountaintop removal mining”]Yes, editorial.
§ 824.11(a)(4)NoneProposed for removal; redundant of proposed § 785.14(b)(3).
§ 824.11(a)(5)§ 824.11(b)(1)Yes.
§ 824.11(a)(6)§ 824.11(b)(2)Yes.
§ 824.11(a)(7)§ 824.11(b)(3)Yes, editorial.
§ 824.11(a)(8)§ 824.11(b)(4)Yes.
§ 824.11(a)(9)§ 785.14(b)(9)Yes.
§ 824.11(a)(10)NoneProposed for removal; redundant of proposed paragraph (b)(1).
§ 824.11(a)(11)§ 824.11(b)(5)Yes.
§ 827.12(a) through (l)Merged with introductory text of § 827.12Yes, editorial.

The following table is organized in numerical order of the proposed rule citations. It does not include those provisions of the proposed rule for which there is no counterpart in the existing regulations. In addition, it includes only those provisions of the proposed rule for which we propose to move the existing rule counterpart to a different paragraph or section; i.e., those provisions that we propose to redesignate.

Proposed ruleExisting rule counterpartExisting text revised in proposed rule?
§ 700.11(d)(1)§ 700.11(d)(1)(i)Yes, editorial.
§ 700.11(d)(2)§ 700.11(d)(1)(ii)Yes.
§ 700.11(d)(3)§ 700.11(d)(2)Yes.
§ 701.5 [definition of “mountaintop removal mining”]§ 785.14(b), § 824.11(a)(2) and (a)(3)Yes, editorial.
§ 773.7(b)(1)§ 773.7(a) [last sentence]Yes, editorial.
§ 773.7(c)§ 773.7(b)Yes, editorial.
§ 773.15(m)§ 773.15(n)No.
§ 777.13(a)(1)§ 777.13(a)Yes.
§ 777.13(a)(2)§ 777.13(b)Yes, editorial.
§ 777.13(b)§§ 780.21(a) and 784.14(a)Yes.
§ 777.13(d)§§ 780.21(d) and 784.14(d)Yes.
§ 779.17§ 779.12(b)Yes, editorial.
§ 779.20(a) through (c)§ 780.16(a)Yes.
§ 779.20(d)§ 780.16(c)Yes.
§ 779.22§ 780.23(a)Yes.
§ 779.24(a)(1) through (a)(6)§ 779.24(a) through (f)Yes.
§ 779.24(a)(7)§ 780.21(b)(1) [location and ownership information in first sentence]Yes, editorial.
§ 779.24(a)(9)§ 780.21(b)(2) [first part of first sentence through “impoundments”] and § 779.25(a)(7)Yes, editorial.
§ 779.24(a)(10)§ 779.24(g)Yes.
§ 779.24(a)(12)§ 780.21(b)(2) [the part of the first sentence that pertains to discharges]Yes, editorial.
§ 779.24(a)(14) through (a)(17)§ 779.24(h) through (k)No, except for editorial changes in (a)(17).
§ 779.24(a)(18)§ 779.25(a)(1)Yes.
§ 779.24(a)(19)§ 779.25(a)(6)Yes.
§ 779.24(a)(20)§ 779.25(a)(2)Yes.
§ 779.24(a)(21)§ 779.25(a)(3)Yes.
§ 779.24(a)(22)§ 779.25(a)(4)No.
§ 779.24(a)(23) and (a)(24)§ 779.25(a)(5)Yes, editorial.
§ 779.24(a)(25)§ 779.25(a)(8)No.
§ 779.24(a)(26)§ 779.25(a)(9)Yes.
§ 779.24(a)(8) [water wells], § 779.24(a)(27) [gas and oil wells]§ 779.25(a)(10)Yes.
§ 779.24(a)(28)§ 779.24(l)No.
§ 780.12 [in general]§ 780.18 [in general]Yes.
§ 780.12(b)§ 780.18(b)(1)Yes.
§ 780.12(c)§ 780.18(b)(2)Yes.
§ 780.12(d)§ 780.18(b)(3)Yes.
§ 780.12(e) [in general]§ 780.18(b)(4)Yes.
§ 780.12(e)(1)(ii)§ 816.22(e)Yes.
§ 780.12(e)(2)§ 816.22(b)Yes.
§ 780.12(g) [in general]§ 780.18(b)(5)Yes.
§ 780.12(g)(3)(i)§ 816.111(a)(2)Yes.
§ 780.12(g)(3)(ii)§ 816.111(a)(4)Yes.
§ 780.12(g)(3)(iii)§ 816.111(b)(1)No.
Start Printed Page 44461
§ 780.12(g)(3)(iv)§ 816.111(b)(2)Yes.
§ 780.12(g)(3)(v)§ 816.111(b)(3)Yes, editorial.
§ 780.12(g)(3)(vi)§ 816.111(b)(4)No.
§ 780.12(g)(3)(vii)§ 816.111(b)(5)Yes, editorial.
§ 780.12(g)(4)§ 816.111(c)Yes.
§ 780.12(g)(5)§ 816.111(d)Yes, editorial.
§ 780.12(i)§ 780.18(b)(6)Yes, editorial.
§ 780.12(j)§ 780.18(b)(7)Yes.
§ 780.12(k)§ 780.18(b)(8)Yes, editorial.
§ 780.12(l)§ 780.18(b)(9)Yes, editorial.
§ 780.12(m)§ 780.23(b)(3)Yes, editorial.
§ 780.13§ 780.14Yes.
§ 780.14§ 780.12Yes, editorial.
§ 780.15§ 780.13Yes.
§ 780.16(a) through (d)§ 780.16(b)Yes.
§ 780.16(e)§ 780.16(c)Yes.
§ 780.19(a)(1)§ 780.22(a)Yes.
§ 780.19(b)§ 780.21(b)(1) [except location and ownership information in the first sentence]Yes.
§ 780.19(c)§ 780.21(b)(2) [except the part of the first sentence that precedes “and information on . . . ”]Yes.
§ 780.19(f)(1) through (3)§ 780.22(b)Yes.
§ 780.19(f)(4)§ 780.22(c)Yes, editorial.
§ 780.19(f)(5)§ 780.22(d)Yes, editorial.
§ 780.19(g)§ 780.21(c)Yes.
§ 780.20(a)§ 780.21(f)(1) through (f)(3)Yes.
§ 780.20(b)§ 780.21(b)(3)Yes.
§ 780.20(c)(1)§ 780.21(f)(4)Yes.
§ 780.21§ 780.21(g)Yes.
§ 780.22(a)§ 780.21(h)Yes.
§ 780.22(b)(1)§ 780.21(e)Yes.
§ 780.23(a)§ 780.21(i)Yes.
§ 780.23(b)§ 780.21(j)Yes.
§ 780.24(a)§ 780.23(b) [except (b)(3)]Yes.
§ 780.24(b)§ 816.133(b) [first sentence], § 816.133(c)Yes.
§ 780.24(c)NoneYes, modeled on existing §§ 784.200(a) and 817.200(d)(1).
§ 780.24(e)§ 816.133(b) [last sentence]Yes.
§ 780.25(d)(3)(iv)§ 816.84(e)Yes, editorial.
§ 780.28(c)§ 816.43(a)(3) [last sentence], § 816.43(b)Yes.
§ 780.28(e)(2)§ 816.57(a) [except first sentence]Yes
§ 780.29(c)§ 780.29Yes.
§ 780.35(e)(2) and (3)§ 816.71(c)Yes.
§ 780.35(f)§ 780.35(a) [in part], § 816.71(b)(1) [first sentence]Yes, editorial.
§ 780.35(g)§ 780.35(b), § 816.71(d)(1)Yes.
§ 780.35(h)§ 780.35(a) [in part]Yes, editorial.
§ 780.35(i)§ 780.35(c)Yes, editorial.
§ 780.35(j)§ 816.71(b)(1) [second sentence]Yes, editorial.
§ 783.17§ 783.12(b)Yes, editorial.
§ 783.20(a) and (b)§ 784.21(a)Yes.
§ 783.20(d)§ 784.21(c)Yes.
§ 783.22§ 784.15(a)Yes.
§ 783.24(a)(1) through (a)(6)§ 783.24(a) through (f)Yes.
§ 783.24(a)(7)§ 784.14(b)(1) [location and ownership information in first sentence]Yes, editorial.
§ 783.24(a)(9)§ 784.14(b)(2) [the part of the first sentence that precedes “impoundments”] § 783.25(a)(7)Yes, editorial.
§ 783.24(a)(10)§ 783.24(g)Yes.
§ 783.24(a)(12)§ 784.14(b)(2) [the part of the first sentence that pertains to discharges]Yes, editorial.
§ 783.24(a)(14) through (a)(17)§ 783.24(h) through (k)No, except for editorial changes in (a)(17).
§ 783.24(a)(18)§ 783.25(a)(1)Yes.
§ 783.24(a)(19)§ 783.25(a)(6)Yes.
§ 783.24(a)(20)§ 783.25(a)(2)Yes.
§ 783.24(a)(21)§ 783.25(a)(3), [Suspended August 4, 1980]Yes. We are re-proposing part of this rule and proposing to remove the remainder.
§ 783.24(a)(22)§ 783.25(a)(4)Yes.
§ 783.24(a)(23) and (a)(24)§ 783.25(a)(5)Yes.
§ 783.24(a)(25)§ 783.25(a)(8), [Suspended August 4, 1980]Yes, editorial. We are re-proposing this rule.
§ 783.24(a)(26)§ 783.25(a)(9), [Suspended August 4, 1980]Yes. We are re-proposing part of this rule and proposing to remove the remainder.
Start Printed Page 44462
§ 783.24(a)(8) [water wells], § 783.24(a)(27) [gas and oil wells]§ 783.25(a)(10)Yes.
§ 783.24(a)(28)§ 783.24(l)No.
§ 784.12 [in general]§ 784.13 [in general]Yes.
§ 784.12(b)§ 784.13(b)(1)Yes.
§ 784.12(c)§ 784.13(b)(2)Yes.
§ 784.12(d)§ 784.13(b)(3)Yes.
§ 784.12(e) [in general]§ 784.13(b)(4)Yes.
§ 784.12(e)(1)(ii)§ 817.22(e)Yes.
§ 784.12(e)(2)§ 817.22(b)Yes.
§ 784.12(f)§ 784.26Yes.
§ 784.12(g) [in general]§ 784.13(b)(5)Yes.
§ 784.12(g)(3)(i)§ 817.111(a)(2)Yes.
§ 784.12(g)(3)(ii)§ 817.111(a)(4)Yes.
§ 784.12(g)(3)(iii)§ 817.111(b)(1)No.
§ 784.12(g)(3)(iv)§ 817.111(b)(2)Yes.
§ 784.12(g)(3)(v)§ 817.111(b)(3)Yes, editorial.
§ 784.12(g)(3)(vi)§ 817.111(b)(4)No.
§ 784.12(g)(3)(vii)§ 817.111(b)(5)Yes, editorial.
§ 784.12(g)(4)§ 817.111(c)Yes.
§ 784.12(g)(5)§ 817.111(d)Yes, editorial.
§ 784.12(i)§ 784.13(b)(6)Yes, editorial.
§ 784.12(j)§ 784.13(b)(7)Yes.
§ 784.12(k)§ 784.13(b)(8)Yes, editorial.
§ 784.12(l)§ 784.13(b)(9)Yes, editorial.
§ 784.12(m)§ 784.15(b)(3)Yes, editorial.
§ 784.13§ 784.23Yes.
§ 784.14§ 784.12Yes, editorial.
§ 784.16(a) through (d)§ 784.21(b)Yes.
§ 784.16(e)§ 784.21(c)Yes.
§ 784.19(a)(1)§ 784.22(a)Yes.
§ 784.19(b)§ 784.14(b)(1) [except location and ownership information]Yes.
§ 784.19(c)§ 784.14(b)(2) [except the part of the first sentence that precedes “and information on . . . ”]Yes.
§ 784.19(f)(1) through (4)§ 784.22(b)Yes.
§ 784.19(f)(5)§ 784.22(c)Yes, editorial.
§ 784.19(f)(6)§ 784.22(d)Yes, editorial.
§ 784.19(g)§ 784.14(c)Yes.
§ 784.20(a)§ 784.14(e)(1) through (e)(3)Yes.
§ 784.20(b)§ 784.14(b)(3)Yes.
§ 784.20(c)(1)§ 784.14(e)(4)Yes.
§ 784.21§ 784.14(f)Yes.
§ 784.22(a)§ 784.14(g)Yes.
§ 784.23(a)§ 784.14(h)Yes.
§ 784.23(b)§ 784.14(i)Yes.
§ 784.24(a)§ 784.15(b) [except (b)(3)]Yes.
§ 784.24(b)§ 817.133(b) [first sentence], § 817.133(c)Yes.
§ 784.24(c)§ 784.200(a), § 817.200(d)(1)Yes.
§ 784.24(e)§ 817.133(b) [last sentence]Yes.
§ 784.25(d)(3)(iv)§ 817.84(e)Yes, editorial.
§ 784.26§ 784.25Yes, editorial.
§ 784.28(c)§ 817.43(a)(3) [last sentence], § 817.43(b)Yes.
§ 784.28(e)(2)§ 817.57(a) [except first sentence]Yes
§ 784.29(c)§ 784.29Yes.
§ 784.30§ 784.20Yes.
§ 784.31§ 784.17No.
§ 784.33§ 784.18No.
§ 784.35§ 784.19, § 817.71(b)(1), (c), (d)(1), and (d)(2) [second sentence]Yes.
§ 784.37§ 784.24Yes.
§ 784.38§ 784.30Yes, editorial.
§ 785.14(b)§ 785.14(c)Yes, editorial.
§ 785.14(b) (introductory text)§ 785.14(c) [introductory text]Yes, editorial.
§ 785.14(b)(1)§ 785.14(c)(1) [introductory text]Yes, editorial.
§ 785.14(b)(2)§ 785.14(c)(1)(i)Yes, editorial.
§ 785.14(b)(3)§ 785.14(c)(1)(ii)Yes, editorial.
§ 785.14(b)(4)§ 785.14(c)(1)(iii) [except paragraph (c)(1)(iii)(G)]Yes, editorial.
§ 785.14(b)(5)§ 785.14(c)(1)(iii)(G)Yes, editorial.
§ 785.14(b)(6)§ 785.14(c)(1)(iv)Yes, editorial.
§ 785.14(b)(7)§ 785.14(c)(1)(v)Yes, editorial.
§ 785.14(b)(8)§ 785.14(c)(2)Yes, editorial.
Start Printed Page 44463
§ 785.14(b)(9)§ 824.11(a)(9)Yes.
§ 785.14(b)(12)§ 785.14(c)(4)Yes, editorial.
§ 785.14(c)§ 785.14(c)(5)Yes.
§ 785.14(d)(1)§ 785.14(d)(1) and (2)Yes.
§ 785.14(d)(2)§ 785.14(d)(3)Yes, editorial.
§ 785.16(a) (introductory text)§ 785.16(a) [introductory text]Yes, editorial.
§ 785.16(a)(1)§ 785.16(a)(1)Yes, editorial.
§ 785.16(a)(2)§ 816.133(d)(2)Yes, editorial.
§ 785.16(a)(3)§ 816.133(d)(4)Yes, editorial.
§ 785.16(a)(4)§ 816.133(d)(10)Yes, editorial.
§ 785.16(a)(5)§ 816.133(d)(5)Yes, editorial.
§ 785.16(a)(6)§ 816.133(d)(7)Yes, editorial.
§ 785.16(a)(7)§ 816.133(d)(8)Yes, editorial.
§ 785.16(a)(9)§ 785.16(a)(3), § 816.133(d)(6)Yes.
§ 785.16(a)(10)§ 785.16(a)(4), § 816.133(d)(9)Yes.
§ 785.16(b)(1)§ 785.16(b)(2)Yes, editorial.
§ 785.16(b)(2)§ 785.16(c) and (d)Yes.
§ 785.16(b)(3)§ 785.16(e)Yes, editorial.
§ 785.16(b)(4)§ 785.16(f)Yes, editorial.
§ 785.25(b)(1)§ 785.25(b) [first sentence]Yes, editorial.
§ 785.25(b)(2)§ 785.25(b) [except first sentence]Yes, editorial.
§ 800.9§ 800.11(e)Yes.
§ 800.11§ 800.11(a) through (d)Yes, editorial.
§ 800.15(a)(2)(ii)§ 800.15(c) [first sentence]Yes, editorial.
§ 800.30(a)(1)§ 800.30(a)Yes.
§ 800.30(a)(3)§ 800.30(b)Yes
§ 800.30(b)§ 800.16(e)(2)Yes.
§ 800.40§ 800.40(a)Yes, editorial, except for (b)(2)(vi), which has substantive changes.
§ 800.41§ 800.40(b)(1)Yes, editorial, except for (a)(2), which has substantive changes.
§ 800.42§ 800.40(c)Yes.
§ 800.43(a)§ 800.40(b)(2)Yes, editorial.
§ 800.43(b)§ 800.40(d)Yes, editorial.
§ 800.43(c)§ 800.40(e)Yes, editorial
§ 800.44(a) through (c)§ 800.40(f) through (h)Yes, editorial.
§ 816.13(a), (c), (d), and (f)§ 816.13Yes, editorial.
§ 816.13(b)§ 816.14Yes, editorial.
§ 816.13(e)§ 816.15Yes, editorial.
§ 816.22(a)(1) and (2)§ 816.22(a)(1) through (4)Yes.
§ 816.22(b)§ 816.22(c)Yes.
§ 816.22(c)§ 816.22(b)Yes.
§ 816.22(d)(2)§ 816.22(d)(2)Yes, editorial.
§ 816.22(e)(1)§ 816.22(d)(1)Yes.
§ 816.22(e)(3)§ 816.22(d)(3)Yes, editorial.
§ 816.34(a) through (c)§ 816.41(a), (b), and (d)Yes.
§ 816.35§ 816.41(c)Yes.
§ 816.36§ 816.41(e)Yes.
§ 816.38§ 816.41(f)Yes.
§ 816.39§ 816.41(g)Yes.
§ 816.40§ 816.41(h) and paragraphs (a) and (b) of definition of “replacement of water supply” in § 701.5Yes.
§ 816.41§ 816.41(i)Yes.
§ 816.42(a)§ 816.42Yes.
§ 816.43(a)(5)(ii)§ 816.43(c)(3)Yes.
§ 816.46(c)(1)(i) and (ii)§ 816.46(c)(1)(ii) and (iii)Yes.
§ 816.57(a)(1)§ 816.57(a) [first sentence]Yes.
§ 816.57(b)§ 816.43(a)(3) (last sentence), § 816.43(b)Yes.
§ 816.71(b)(1)§ 816.71(b)(2)Yes, editorial.
§ 816.71(b)(2)§ 816.71(d)(2) [first sentence]Yes.
§ 816.71(d)§ 816.71(e)(1)Yes.
§ 816.71(e)(1)§ 816.72(a)(2)Yes.
§ 816.71(e)(2)§ 816.72(a)(1)Yes, editorial.
§ 816.71(g)(1)§ 816.71(e)(2)Yes.
§ 816.71(g)(3)§ 816.71(e)(5)Yes, editorial.
§ 816.71(h)§ 816.71(e)(3)Yes.
§ 816.71(i)§ 816.71(e)(4)Yes.
§ 816.71(j)§ 816.71(g)Yes, editorial.
§ 816.71(k)§ 816.71(h)Yes.
§ 816.71(l)§ 816.71(i)Yes.
§ 816.71(m)§ 816.71(j)Yes, editorial.
§ 816.74(c)(1)§ 816.74(c) [first sentence]Yes, editorial.
§ 816.74(c)(2)§ 816.74(c) [second sentence]Yes, editorial.
Start Printed Page 44464
§ 816.74(c)(3)§ 816.74(d)(4)Yes.
§ 816.74(d)(1)§ 816.74(c) [third sentence]Yes, editorial.
§ 816.74(d)(2)§ 816.74(c) [fourth sentence]Yes, editorial.
§ 816.74(e)§ 816.74(d) [except (d)(4)]Yes.
§ 816.74(f)§ 816.74(e)Yes, editorial.
§ 816.74(g)§ 816.74(f)Yes, editorial.
§ 816.74(h)§ 816.74(g)Yes, editorial.
§ 816.81(a)§ 816.81(a) [first sentence]Yes, editorial.
§ 816.81(b)§ 816.81(a) [except first sentence]Yes.
§ 816.81(c)§ 816.81(b)Yes, editorial.
§ 816.81(d)§ 816.81(c)Yes.
§ 816.81(e)§ 816.81(d)Yes, editorial.
§ 816.81(g)§ 816.81(e)Yes, editorial.
§ 816.81(h)§ 816.81(f)Yes, editorial.
§ 816.83(a)§ 816.83 [introductory text]Yes, editorial.
§ 816.83(b)§ 816.83(a)Yes.
§ 816.83(c)§ 816.83(b)Yes, editorial.
§ 816.83(d)§ 816.83(c)Yes.
§ 816.83(e)§ 816.83(d)Yes, editorial.
§ 816.84(a)§ 816.84 [introductory text]Yes, editorial.
§ 816.84(b)§ 816.84(a)Yes, editorial.
§ 816.84(c)§ 816.84(b)Yes, editorial.
§ 816.84(d)§ 816.84(c)Yes, editorial.
§ 816.84(e)§ 816.84(d)Yes.
§ 816.97(b)(5) and (c)(4)§ 816.97(d)Yes, editorial.
§ 816.97(d)§ 816.97(e)Yes.
§ 816.97(e)§ 816.97(f)Yes.
§ 816.97(f)§ 816.97(g)Yes.
§ 816.97(g)§ 816.97(h)Yes.
§ 816.102(a)(1)(i)§ 816.102(k)(3)(i)Yes, editorial.
§ 816.102(a)(1)(ii)§ 816.102(k)(3)(ii)Yes, editorial.
§ 816.102(a)(1)(iii)§ 816.102(k)(1)Yes, editorial.
§ 816.102(a)(1)(iv)§ 816.102(k)(2)Yes, editorial.
§ 816.102(a)(1)(v)§ 816.102(k)(3)(iii)Yes, editorial.
§ 816.102(a)(2)§ 816.102(g)Yes.
§ 816.102(a)(3) [introductory text]§ 816.102(a)(2)Yes.
§ 816.102(a)(3)(i)§ 816.102(h)Yes.
§ 816.102(a)(3)(ii)§ 816.102(i)Yes.
§ 816.102(a)(4)§ 816.102(a)(3)No.
§ 816.102(a)(5)§ 816.102(a)(4)Yes.
§ 816.102(a)(6)§ 816.102(a)(5)No.
§ 816.102(b) [introductory text] and (b)(1)§ 816.102(b)Yes, editorial.
§ 816.102(b)(3)§ 816.102(d)Yes.
§ 816.102(d)§ 816.102(f)Yes.
§ 816.102(f)§ 816.102(j)Yes.
§ 816.111(a) and (b)§ 816.111(a) [except (a)(2) and (a)(4)]Yes.
§ 816.111(d)§ 816.114Yes.
§ 816.111(e)§ 816.113Yes.
§ 816.116(a)§ 816.116(a)(1)Yes, editorial.
§ 816.116(b)§ 816.116(a) [introductory text]Yes.
§ 816.116(c)§ 816.116(a)(2) [first sentence]Yes
§ 816.116(d)§ 816.116(a)(2) [second sentence]Yes, editorial.
§ 816.116(e)§ 816.116(b)(3)(i)Yes.
§ 816.116(f)(1) and (f)(2)§ 816.116(b)(3)(ii)Yes.
§ 816.116(f)(3)§ 816.116(b)(3)(iii)Yes.
§ 816.116(g)§ 816.116(b)(4)Yes.
§ 816.116(h)§ 816.116(b)(5)Yes, editorial.
§ 816.115§ 816.116(c)Yes.
§ 816.133 [introductory text]§ 816.133(a) [introductory text]Yes, editorial.
§ 816.133(a)§ 816.133(a)(1)Yes, editorial.
§ 816.133(b)§ 816.133(a)(2)Yes, editorial.
§ 817.13(a), (d), (e), and (g)§ 817.13Yes, editorial.
§ 817.13(b)§ 817.14(a)Yes, editorial.
§ 817.13(c)§ 817.14(b)Yes, editorial.
§ 817.13(f)§ 817.15Yes, editorial.
§ 817.22(a)(1) and (2)§ 817.22(a)(1) through (4)Yes.
§ 817.22(b)§ 817.22(c)Yes.
§ 817.22(c)§ 817.22(b)Yes.
§ 817.22(d)(2)§ 817.22(d)(2)Yes, editorial.
§ 817.22(e)(1)§ 817.22(d)(1)Yes.
§ 817.22(e)(3)§ 817.22(d)(3)Yes, editorial.
§ 817.34(a) through (c)§ 817.41(a), (b), and (d)Yes.
§ 817.35§ 817.41(c)Yes.
§ 817.36§ 817.41(e)Yes.
Start Printed Page 44465
§ 817.38§ 817.41(f)Yes.
§ 817.39§ 817.41(g)Yes.
§ 817.40§ 817.41(j) and paragraphs (a) and (b) of definition of “replacement of water supply” in § 701.5Yes.
§ 817.41§ 817.41(h)Yes.
§ 817.42(a)§ 817.42Yes.
§ 817.43(a)(5)(ii)§ 817.43(c)(3)Yes.
§ 817.44§ 817.41(i)Yes, editorial.
§ 817.46(c)(1)(i) and (ii)§ 817.46(c)(1)(ii) and (iii)Yes.
§ 817.57(a)(1)§ 817.57(a) [first sentence]Yes.
§ 817.57(b)§ 817.43(a)(3) [last sentence], § 817.43(b)Yes.
§ 817.71(b)(1)§ 817.71(b)(2)Yes, editorial.
§ 817.71(b)(2)§ 817.71(d)(2) [first sentence]Yes.
§ 817.71(d)§ 817.71(e)(1)Yes.
§ 817.71(e)(1)§ 817.72(a)(2)Yes.
§ 816.71(e)(2)§ 817.72(a)(1)Yes, editorial.
§ 817.71(g)(1)§ 817.71(e)(2)Yes.
§ 817.71(g)(3)§ 817.71(e)(5)Yes, editorial.
§ 817.71(h)§ 817.71(e)(3)Yes.
§ 817.71(i)§ 817.71(e)(4)Yes.
§ 817.71(j)§ 817.71(g)Yes.
§ 817.71(k)§ 817.71(h)Yes.
§ 817.71(l)§ 817.71(i)Yes.
§ 817.71(m)§ 817.71(j)Yes, editorial.
§ 817.74(c)(1)§ 817.74(c) [first sentence]Yes, editorial.
§ 817.74(c)(2)§ 817.74(c) [second sentence]Yes, editorial.
§ 817.74(c)(3)§ 817.74(d)(4)Yes.
§ 817.74(d)(1)§ 817.74(c) [third sentence]Yes, editorial.
§ 817.74(d)(2)§ 817.74(c) [fourth sentence]Yes, editorial.
§ 817.74(e)§ 817.74(d) [except (d)(4)]Ye.s
§ 817.74(f)§ 817.74(e)Yes, editorial.
§ 817.74(g)§ 817.74(f)Yes, editorial.
§ 817.74(h)§ 817.74(g)Yes, editorial.
§ 817.81(a)§ 817.81(a) [first sentence]Yes, editorial.
§ 817.81(b)§ 817.81(a) [except first sentence]Yes.
§ 817.81(c)§ 817.81(b)Yes, editorial.
§ 817.81(d)§ 817.81(c)Yes.
§ 817.81(e)§ 817.81(d)Yes.
§ 817.81(g)§ 817.81(e)Yes, editorial.
§ 817.81(h)§ 817.81(f)Yes, editorial.
§ 817.83(a)§ 817.83 [introductory text]Yes, editorial.
§ 817.83(b)§ 817.83(a)Yes.
§ 817.83(c)§ 817.83(b)Yes, editorial.
§ 817.83(d)§ 817.83(c)Yes.
§ 817.83(e)§ 817.83(d)Yes, editorial.
§ 817.84(a)§ 817.84 [introductory text]Yes, editorial.
§ 817.84(b)§ 817.84(a)Yes, editorial.
§ 817.84(c)§ 817.84(b)Yes, editorial.
§ 817.84(d)§ 817.84(c)Yes, editorial.
§ 817.84(e)§ 817.84(d)Yes.
§ 817.97(b)(5) and (c)(4)§ 817.97(d)Yes, editorial.
§ 817.97(d)§ 817.97(e)Yes.
§ 817.97(e)§ 817.97(f)Yes.
§ 817.97(f)§ 817.97(g)Yes.
§ 817.97(g)§ 817.97(h)Yes.
§ 817.102(a)(1)(i)§ 817.102(k)(1)Yes, editorial.
§ 817.102(a)(1)(ii)§ 817.102(k)(2)Yes, editorial.
§ 817.102(a)(1)(vii)§ 817.102(l)Yes.
§ 817.102(a)(2)§ 817.102(g)Yes.
§ 817.102(a)(3) [introductory text]§ 817.102(a)(2)Yes.
§ 817.102(a)(3)(i)§ 817.102(h)Yes.
§ 817.102(a)(3)(ii)§ 817.102(i)Yes.
§ 817.102(a)(4)§ 817.102(a)(3)No.
§ 817.102(a)(5)§ 817.102(a)(4)Yes.
§ 817.102(a)(6)§ 817.102(a)(5)No.
§ 817.102(b) [introductory text] and (b)(1)§ 817.102(b)Yes, editorial.
§ 817.102(b)(2)§ 817.102(d)Yes.
§ 817.102(d)§ 817.102(f)Yes.
§ 817.102(f)§ 817.102(j)Yes.
§ 817.111(a) and (b)§ 817.111(a) [except (a)(2) and (a)(4)]Yes.
§ 817.111(d)§ 817.114Yes.
§ 817.111(e)§ 817.113Yes.
§ 817.116(a)§ 817.116(a)(1)Yes, editorial.
Start Printed Page 44466
§ 817.116(b)§ 817.116(a) [introductory text]Yes.
§ 817.116(c)§ 817.116(a)(2) [first sentence]Yes.
§ 817.116(d)§ 817.116(a)(2) [second sentence]Yes, editorial.
§ 817.116(e)§ 817.116(b)(3)(i)Yes.
§ 817.116(f)(1) and (f)(2)§ 817.116(b)(3)(ii)Yes.
§ 817.116(f)(3)§ 817.116(b)(3)(iii)Yes.
§ 817.116(g)§ 817.116(b)(4)Yes.
§ 817.116(h)§ 817.116(b)(5)Yes, editorial.
§ 817.115§ 817.116(c)Yes.
§ 817.133 [introductory text]§ 817.133(a) [introductory text]Yes, editorial.
§ 817.133(a)§ 817.133(a)(1)Yes, editorial.
§ 817.133(b)§ 817.133(a)(2)Yes, editorial.
§ 817.121(c)§ 817.121(c)(1)Yes, editorial.
§ 817.121(d)§ 817.121(c)(2)Yes, editorial.
§ 817.121(e)§ 817.121(c)(3)Yes, editorial.
§ 817.121(f)§ 817.121(c)(4)(v)Yes, editorial.
§ 817.121(g)§ 817.121(c)(5)Yes.
§ 817.121(h)§ 817.121(d)Yes, editorial.
§ 817.121(i)§ 817.121(e)Yes, editorial.
§ 817.121(j)§ 817.121(f)Yes, editorial.
§ 817.121(k)§ 817.121(g)Yes, editorial.
§ 824.11(a)§ 824.11(a) [introductory text] and (a)(1)Yes, editorial.
§ 824.11(b)(1)§ 824.11(a)(5)Yes.
§ 824.11(b)(2)§ 824.11(a)(6)Yes.
§ 824.11(b)(3)§ 824.11(a)(7)Yes, editorial.
§ 824.11(b)(4)§ 824.11(a)(8)Yes.
§ 824.11(b)(5)§ 824.11(a)(11)Yes.

In general, we drafted the proposed rule using plain language principles, consistent with section 501(b) of SMCRA, 30 U.S.C. 1251(a), which provides that regulations must be “concise and written in plain, understandable language,” and Executive Order 13563, which provides that our regulatory system “must ensure that regulations are accessible, consistent, written in plain language, and easy to understand.” [123] In addition, a June 1, 1998, Executive Memorandum on Plain Language in Government Writing [124] requires the use of plain language in all proposed and final rulemaking documents published after January 1, 1999. The Office of the Federal Register also encourages the use of plain language in writing regulations, as set forth in detail at www.plainlanguage.gov and associated links.

Plain language requirements vary from one document to another, depending on the intended audience. Plain language documents have logical organization and easy-to-read design features like short sections, short sentences, tables, and lots of white space. They use common everyday words (except for necessary technical terms), pronouns, the active voice, and a question-and-answer format when feasible.

The proposed rule and preamble use the pronouns “we,” “us,” and “our” to refer to OSMRE, and the pronouns “I,” “you,” and “your” to refer to a permit applicant or permittee. We avoid use of the word “shall” in the proposed rule and preamble, except in quoted material. Instead, we use “must” to indicate an obligation, “will” to identify a future event, and “may not” to convey a prohibition.

We invite comment on how we could more fully incorporate plain language principles.

IX. How do we propose to revise specific provisions of our existing regulations?

In this portion of the preamble, we discuss selected provisions of our proposed rule in the order in which the regulations that we propose to revise would appear in Title 30, Chapter VII of the Code of Federal Regulations. In general, we do not discuss proposed organizational changes (see Part VIII of this preamble for a listing of organizational changes), nonsubstantive editorial revisions (e.g., plain language changes, correction of grammatical errors, and syntax improvements), cross-reference changes, or revisions of a minor nature. No substantive change in meaning is intended for proposed revisions made in accordance with plain language principles.

A. Section 700.11(d): Termination and Reassertion of Jurisdiction

The basis and purpose for our termination-of-jurisdiction rules is set forth in the preamble to the 1988 version of these rules. See 53 FR 44356-44363 (Nov. 2, 1988). We propose to revise paragraph (d)(1) of the existing rules by removing the phrase “the reclaimed site of” from the existing introductory language because the regulatory authority's jurisdiction extends to the entire surface coal mining and reclamation operation, not just to the lands disturbed and reclaimed by the operation. Hence, any decision to terminate jurisdiction likewise should extend to the entire operation.

We propose to improve the structure of the existing rule by placing the termination of jurisdiction requirements for initial program operations in paragraph (d)(1) and the requirements for permanent program operations in paragraph (d)(2). We also propose to add a provision to paragraph (d)(2)(ii) to reflect the proposed addition to 30 CFR part 800 of provisions concerning financial assurances for treatment of long-term discharges. In particular, we propose to allow the regulatory authority to terminate jurisdiction over all portions of a minesite and all aspects of the operation, except treatment-related facilities and obligations, once the permittee posts an acceptable financial assurance under proposed 30 CFR 800.18 to guarantee treatment of all long-term discharges. Termination of jurisdiction may not occur until all performance bonds for the remainder of the permit area are fully released. Our proposed rule would improve the efficiency of regulatory authorities by eliminating unnecessary inspections of Start Printed Page 44467the portion of the permit area that has been fully reclaimed. It also would eliminate the need for federal oversight of those sites and allow the property owner to acquire full control over the land. Continuing to conduct inspections of a fully-reclaimed minesite or of fully-completed operations would divert scarce resources from unreclaimed sites and other regulatory program responsibilities.

Because of the restructuring described above, we propose to redesignate existing paragraph (d)(2) as paragraph (d)(3). This paragraph provides that the regulatory authority must reassert jurisdiction if the termination was based upon fraud, collusion, or misrepresentation of a material fact. We also propose to revise this provision to clarify that it applies to both intentional and unintentional misrepresentations of a material fact, including the subsequent discovery of a discharge that requires treatment. Our proposed revision is consistent with the decision of the U.S. Court of Appeals for the District of Columbia Circuit that upheld our termination of jurisdiction rules.[125]

In addition, proposed paragraph (d)(4) would specify that the termination of jurisdiction provisions of proposed paragraphs (d)(1) and (2) do not apply to proposed 30 CFR 817.40, which contains the domestic water supply replacement requirements for underground mines, or to the structural damage repair or compensation requirements of 30 CFR 817.121(c)(2). Proposed paragraph (d)(4) is consistent with the decision of the U.S. District Court for the District of Columbia concerning termination of jurisdiction for the water replacement and subsidence damage correction obligations imposed on underground mines by section 720(a) of SMCRA.[126] In that decision, the court held that those obligations are not subject to the termination of jurisdiction provisions of 30 CFR 700.11(d).[127]

Finally, we propose to revise existing 30 CFR 700.11(d)(1)(ii), which we propose to redesignate as 30 CFR 700.11(d)(2), to specify that the requirements of that paragraph also apply to coal exploration activities, as was intended when we first published our termination-of-jurisdiction rules in 1988.[128] The phrase “or of a coal exploration site” was inadvertently omitted from the published text of existing 30 CFR 700.11(d)(1). We plan to correct this inadvertent error when publishing a final rule. However, we invite comment on whether we should instead limit the scope of that requirement to termination of jurisdiction for coal exploration permits issued under 30 CFR 772.12. The rationale for a limitation of this nature is that, unlike coal exploration permits, coal exploration notices do not require regulatory authority approval and do not involve activities that substantially disturb the land surface.

B. Section 701.5: Definitions

This portion of the preamble discusses, in alphabetical order, each definition that we propose to add, remove, or revise.

Acid Drainage

We propose to revise the definition of this term to clarify that the same definition applies to the term “acid mine drainage.” We also propose to correct the terminology in the definition to comport with the terminology used in SMCRA. Specifically, we propose to replace the undefined term “surface coal mine and reclamation operation” with “surface coal mining and reclamation operations,” which is defined at section 701(27) of SMCRA,[129] as well as in 30 CFR 700.5.

Adjacent Area

Proposed paragraph (a) would revise and broaden the existing definition of “adjacent area” to ensure that it includes all areas outside the proposed or actual permit area within which there is a reasonable possibility of adverse impacts from surface coal mining operations or underground mining activities, as applicable. The existing definition limits the adjacent area to areas where adverse impacts could reasonably be expected to occur and, for underground mining, to areas where subsidence is probable. Those limits are too restrictive because they effectively limit baseline data collection and monitoring to the area in which adverse impacts are almost certain to occur. If impacts occur outside that area, there will be no baseline data against which to evaluate those impacts. Therefore, we propose to revise the definition to include areas where impacts are reasonably possible, as determined by the regulatory authority on a site-specific basis.

The revised definition would emphasize that the term “adjacent area” is both site-specific and context-specific. As in the existing definition, the nature of the resource and the context in which the regulations use the term “adjacent area” would determine the size and dimensions of the adjacent area for that resource. Our regulations require that each permit application contain information concerning historic resources, fish and wildlife resources, surface water, groundwater, and geology for the proposed permit and adjacent areas. The size and boundaries of the adjacent area in the context of historic resources, which are stationary, may differ substantially from the size and boundaries of the adjacent area for surface water, for which flow patterns are determined by topography, and the size and boundaries of the adjacent area for groundwater, which has a migration pattern determined by geology.

Proposed paragraph (b) would specify that the adjacent area for an underground mine includes both the area overlying the proposed underground workings and the area within a reasonable angle of draw [130] from the perimeter of the underground workings. This provision would ensure that the adjacent area includes all areas in which subsidence may reasonably occur.

Proposed paragraph (c) would specify that, for all operations, the adjacent area also includes the area that might be affected physically or hydrologically by dewatering existing underground mine pools as part of surface or underground mining operations, plus the area that might be affected physically or hydrologically by mine pools that develop after cessation of mining activities.

We considered adding another paragraph to specify that, in the context of surface-water resources, the adjacent area would include, at a minimum, the HUC-12 (U.S. Geological Survey 12-digit Watershed Boundary Dataset) [131] watershed or watersheds in which the proposed or actual permit area is located. However, we decided against including that provision because HUC boundaries are fixed and do not vary with the location of the mining operation. Surface-water data collected from those portions of the HUC-12 watershed that are upgradient of the Start Printed Page 44468proposed operation would be of little or no value in making permitting decisions or evaluating the impacts of mining. In addition, HUC-12 watersheds typically contain between 10,000 and 40,000 acres, which is much larger than the area necessary or appropriate to establish baseline conditions for most coal mines, which are only tens or hundreds of acres in size.

We invite comment on whether the definition should prescribe a more appropriate minimum size for the adjacent area for surface-water resources and, if so, how that minimum size should be determined. For example, a 2002 OSMRE reference document on baseline data recommends that the adjacent area for surface water include both the surface-water runoff drainage area for the proposed operation and at least the next higher-order drainage area.

Approximate Original Contour

We propose to revise the definition of this term to explain its scope and to incorporate plain language principles. In concert with these changes, we propose to clarify that the term refers to the general surface configuration of the land within the permit area as it existed before any mining, not the configuration that existed immediately prior to the proposed or current operation. We intend this change to operate as a requirement that operations backfill and regrade previously mined areas to closely resemble the general surface configuration that existed before any mining, except as provided in 30 CFR 816.106 or 817.106. This approach is consistent with section 515(b)(2) of SMCRA,[132] which requires that surface coal mining and reclamation operations be conducted so as to “restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining . . . .” In ruling on the regulations implementing that provision of the Act, the U.S. District Court for the District of Columbia subsequently held that “[t]he use of the word `any' indicates that Congress intended the operator to restore the land to the condition that existed before it was ever mined.” [133]

Our proposed addition of the phrase “within the permit area” when referring to the general surface configuration is intended to clarify that determinations of approximate original contour must be made based on the general surface configuration of the permit area, not the general surface configuration of the surrounding area. The proposed addition is consistent with section 701(2) of SMCRA,[134] which defines “approximate original contour” as meaning “that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area . . . closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain . . . .” The statutory definition clearly applies the term “general surface configuration” only to the area that is mined and reclaimed; it does not extend to the surrounding area. Instead, with respect to the surrounding area, the statutory definition requires that the general surface configuration of the reclaimed area blend into and complement the drainage pattern of the surrounding terrain. Limiting the scope of the term “general surface configuration” to the mined and reclaimed area also is consistent with the discussion and diagrams in the legislative history of SMCRA. See H.R. Rep. No. 94-45, at 94 (1975).

In addition, we propose to revise the definition to include an exception for excess spoil fills, consistent with a June 18, 1999, legal opinion from the Department of the Interior's Office of the Solicitor. That opinion confirmed that the AOC restoration requirements of SMCRA do not apply to the construction of excess spoil fills, in part because the statutory definition of approximate original contour in section 701(2) of SMCRA [135] applies only to “that surface configuration achieved by backfilling and grading of the mined area.” Excess spoil fills are not part of the backfilling process and they are at least initially located outside the mined area. We also propose to add an exception for coal mine waste refuse piles because the same rationale applies to the construction of those piles. Furthermore, sections 515(b)(11) and 516(b)(4) of SMCRA [136] clearly envision the construction of permanent coal mine waste refuse piles on the land's surface, but there is no requirement to restore the surface of that land to approximate original contour, nor would it be possible to do so. Instead, section 515(b)(11) of the Act [137] requires that the operation “assure the final contour of the waste pile will be compatible with natural surroundings and that the site can and will be stabilized and revegetated according to the provisions of the Act.” Section 516(b)(4) [138] includes similar language for refuse piles associated with underground mines.

We also propose to revise the definition to clarify that, consistent with the legislative history, the potentially confusing placement of the phrase “including any terracing or access roads” in the statutory definition does not mean that terraces and access roads must be regraded to the approximate original contour. As explained in the legislative history of the definition of approximate original contour, Congress added this phrase to clarify that the AOC restoration requirement does not prohibit the construction of terraces or the retention of access roads on backfilled areas.[139] Therefore, we propose to add language stating that the requirements of the definition do not prohibit the approval of terracing under 30 CFR 816.102 or 817.102 or the retention of access roads under 30 CFR 816.150 or 817.150.

Finally, we propose to replace the cross-references to 30 CFR 816.133 and 817.133 with cross-references to 30 CFR 780.24(b) and 784.24(b), respectively. This change reflects our proposal to move the relevant portions of 30 CFR 816.133 and 817.133 to 30 CFR 780.24(b) and 784.24(b), respectively.

Backfill

We propose to add a definition of “backfill” to clarify the difference between backfill, excess spoil fills, and thick overburden returned to the mined-out area under 30 CFR 816.105, all of which have different permitting requirements and performance standards. We derived our proposed definition from the definition of “backfill” in A Dictionary of Mining, Mineral, and Related Terms (U.S. Bureau of Mines, 1968). However, we modified that definition by tailoring it to coal mining and the purpose stated in the first sentence of this discussion. Specifically, we propose to define “backfill,” when used as a noun, as the spoil and waste materials used to fill the void resulting from an excavation created for the purpose of extracting coal from the earth. When used as a verb, the term would refer to the process of filling that void. The definition also would include all materials used to restore the approximate original contour of the mined-out area. We propose to Start Printed Page 44469make conforming changes to the definition of excess spoil, which is discussed below under a separate heading.

Bankfull

We propose to add a definition of this technical and scientific term because we use this term in our proposed regulations to more precisely fix the boundaries of stream buffer zones and riparian corridors and in our proposed stream restoration requirements. Under our proposed definition, bankfull would mean the water level or stage at which a stream, river, or lake is at the top of its banks and any further rise would result in water moving into the flood plain. The proposed definition parallels the one that appears in the National Weather Service glossary.[140]

Biological Condition

We propose to add a definition of biological condition in conjunction with the new permitting requirements and performance standards concerning documentation, protection, and restoration of biological communities in streams. Specifically, we propose to define biological condition as a measure of the ecological health of a stream or segment of a stream as determined by the type, diversity, distribution, abundance, and physiological state of aquatic organisms and communities found in the stream or stream segment. The biological condition of a water body is the ultimate indicator of watershed health because aquatic organisms and communities reflect the cumulative conditions of all other watershed components and processes.[141]

Our proposed rule would require application of a multimetric biological assessment and taxonomic assessment protocol to determine biological condition. See, e.g., proposed 30 CFR 780.19(e) and 784.19(e). Multimetric indices include metrics such as species richness, complexity, and tolerance as well as trophic measures. They provide a quantitative comparison (often referred to as an index of biological or biotic integrity) of the ecological complexity of biological assemblages relative to a regionally-defined reference condition. For example, River Invertebrate Prediction and Classification System models quantify biological condition by comparing the observed taxa at a site to the taxa that would be expected to be present in the absence of human-caused stress.[142]

Our existing regulations do not specifically require collection of the baseline data necessary to determine the biological condition of streams. Consequently, the permit application often lacks specific descriptions of the aquatic community residing in streams within the permit and adjacent areas. The lack of baseline information on the biological condition of streams creates an impediment to determining whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area, as required by sections 507(b) and 510(b)(3) of SMCRA.[143] It also creates an impediment to evaluating whether the operation has been and is being conducted to minimize adverse impacts on fish, wildlife, and related environmental values, as required by sections 515(b)(24) and 516(b)(11) of SMCRA.[144] Furthermore, preparation of a comprehensive cumulative hydrologic impact assessment is not always possible if the permit application does not include information on the biological condition of streams. While the information sometimes may be available from the agencies responsible for implementing the Clean Water Act, those agencies generally do not assess the cumulative loading of substances legally discharged into the receiving stream until the stream becomes impaired.

Cumulative Impact Area

Sections 507(b)(11) and 510(b)(3) of SMCRA [145] require that the regulatory authority prepare an assessment of the probable cumulative impact of all anticipated mining in the area upon the hydrology of the general area. In 1983, we adopted a definition of cumulative impact area to identify both the extent of the area that must be included in this evaluation and the scope of the term “anticipated mining.” [146] The first sentence of the 1983 definition mentions only anticipated mining, while the second sentence includes existing operations in the list of the types of operations encompassed by the term “anticipated mining.” We propose to resolve this inconsistency by replacing the term “anticipated mining” with “existing and anticipated mining” or its equivalent.

In addition, we propose to add language clearly specifying that the term “mining” includes both surface and underground mining operations. Discharges of water from underground mines can cause material damage to the hydrologic balance outside the permit area, as demonstrated by a 2010 incident in which water discharged from an underground mine resulted in a golden algae bloom in Dunkard Creek in West Virginia and Pennsylvania that caused a major fish kill.[147] Our revised definition would clarify that the cumulative impact area includes the area within which the proposed or actual operation may interact with the impacts of all existing and anticipated surface and underground coal mining operations.

We propose to restructure the definition for clarity. Proposed paragraphs (a) through (c) would specify the areas that must be included in the cumulative impact area.

Proposed paragraph (a) would require that the cumulative impact area include the actual or proposed permit area. The addition of the “actual or proposed” language reflects the fact that the cumulative impact area is a concept that applies both before and after permit issuance.

Proposed paragraph (b) would require that the cumulative impact area include the HUC-12 (U.S. Geological Survey 12-digit Watershed Boundary Dataset) [148] watershed or watersheds in which the actual or proposed permit area is located. We propose to add this provision to establish a bright-line standard for the minimum size of the cumulative impact area. For operations that straddle a ridgeline or other watershed boundary, the cumulative impact area must include, at a minimum, the HUC-12 watershed on each side of the ridgeline or other boundary.

Proposed paragraph (c) would provide that, in addition to the areas specified in proposed paragraphs (a) and (b), the cumulative impact area must include any other area within which impacts resulting from an actual or proposed surface or underground coal mining operation may interact with the impacts of all existing and anticipated surface and underground coal mining on surface-water and groundwater systems, including the impacts that existing and Start Printed Page 44470anticipated mining will have during mining and reclamation and after final bond release. Proposed paragraphs (c)(1) through (6) would specify the minimum components of the term “existing and anticipated mining.” Proposed paragraphs (c)(1) through (3) are substantively identical to paragraphs (a) through (c) of the existing definition.

Proposed paragraph (c)(4) would specify that “anticipated mining” includes any proposed surface or underground mining operation for which a person has submitted a request for an authorization, certification, or permit under the Clean Water Act. Inclusion of proposed operations for which the Clean Water Act authorization process has begun would assist in preparation of a more comprehensive analysis on the part of both the permit applicant or permittee and the regulatory authority.

Proposed paragraph (c)(5) would modify paragraph (d) of the existing definition to clarify that anticipated mining includes all lands for which a resource recovery and protection plan has been either approved or submitted to and reviewed by the authorized officer of the Bureau of Land Management under 43 CFR 3482.1(b). The added language would clarify the point at which lands containing leased Federal coal must be included within the cumulative impact area.

Proposed paragraph (c)(6) would specify that anticipated mining includes, for underground mines, all areas of contiguous coal reserves adjacent to an existing or proposed underground mine that are owned or controlled by the applicant. This addition is appropriate because, barring significant changes in economic or regulatory conditions, the mine very likely will be extended into those reserves in the future.

Ecological Function

We propose to add a definition of this term in concert with our proposal to require that permittees restore the ecological function of the segments of perennial and intermittent streams through which they mine. Ecological function includes physical parameters, biological parameters, and a consideration of physical and biological interactions as nutrients and energy are collected and transferred down the stream continuum.[149] Specifically, we propose to define this term as including the role that the stream plays in dissipating energy and transporting water, sediment, organic matter, and nutrients downstream. It also includes the ability of the stream ecosystem to retain and transform inorganic materials needed for biological processes into organic forms (forms containing carbon) and to oxidize those organic molecules back into elemental forms through respiration and decomposition. Finally, the term includes the role that the stream plays in the life cycles of plants, insects, amphibians (especially salamanders), reptiles, fish, birds, and mammals that either reside in the stream or depend upon it for habitat, reproduction, food, water, or protection from predators. The proposed definition is based upon a functional assessment guidebook that the U.S. Army Corps of Engineers developed for ephemeral and intermittent streams in central Appalachia.[150] The biological condition of a stream is one measure of its ecological function.

Ephemeral Stream

We propose to redefine “ephemeral stream” in a manner that is substantively identical to the manner in which the U.S. Army Corps of Engineers defines that term in Part F of the 2012 reissuance of the nationwide permits under section 404 of the Clean Water Act. See 77 FR 10184, 10288 (Feb. 21, 2012). Adoption of a substantively identical definition would promote consistency in application and interpretation of that term under both SMCRA and Clean Water Act programs.

We invite comment on whether the definition in the final rule should include language specifying that the U.S. Army Corps of Engineers has the ultimate authority to determine the point at which an ephemeral stream becomes an intermittent stream or a perennial stream and vice versa. Further, if the final rule includes language to that effect, we invite comment on whether the definition also should provide that any determination that the Corps makes concerning these transition points will be controlling for purposes of SMCRA regulatory programs. Commenters should discuss the applicability of two SMCRA provisions in this context. First, section 702(a) of SMCRA [151] provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act, any rule or regulation adopted under the Clean Water Act, or any state laws enacted pursuant to the Clean Water Act. Second, section 505(b) of SMCRA [152] provides that any provision of any state law or regulation may not be construed to be inconsistent with SMCRA if it “provides for more stringent land use and environmental controls and regulations of surface coal mining and reclamation operation[s] than do the provisions of this Act or any regulation issued pursuant thereto.” In other words, should our regulations allow states to adopt and apply stream definitions in a manner that would protect a greater length of stream than would the Corps determinations?

The primary difference between our existing definition and the Corps definition that we propose to adopt concerns the treatment of snowmelt. Our existing definition classifies streamflow in response to the melting of snow and ice as an ephemeral stream, whereas the Corps definition is silent on this point. The preamble to the Corps definition notes that the Corps declined to accept a recommendation from a commenter that streamflow resulting from snowmelt be classified as an ephemeral stream. The preamble explains that, while snowmelt may contribute to the flow of ephemeral streams, snowmelt also contributes to the flow of intermittent and perennial streams, especially in areas with deep snow packs. The preamble further states that the definition appropriately focuses on the duration of flow and that melting snow should not be considered a precipitation event because the development of a snowpack occurs over the course of a winter season. See 77 FR 10184, 10262 (Feb. 21, 2012).

Excess Spoil

Our existing rules define excess spoil as spoil material disposed of in a location other than the mined-out area. The definition excludes spoil used to achieve the approximate original contour or to blend the mined-out area with the surrounding terrain in non-steep slope areas. However, the existing definition is silent with respect to the characterization of spoil placed on the mined-out area in excess of the amount of spoil needed to restore the approximate original contour. We propose to revise the definition of excess spoil and add a definition of backfill to more clearly differentiate among backfill, material placed in excess spoil fills, and thick overburden returned to the mined-out area under 30 CFR 816.105.Start Printed Page 44471

Specifically, we propose to define excess spoil as including all spoil material disposed of in a location other than the mined-out area within the permit area. The definition also would include all spoil material placed above the approximate original contour within the mined-out area as part of the continued construction of an excess spoil fill with a toe located outside the mined-out area. The added language concerning continuation of an excess spoil fill onto the mined-out area is intended to ensure that the fill is constructed using consistent standards for the entire structure so that the fill is uniformly stable.

The revised definition would retain the clarification that spoil used to restore the approximate original contour of the mined-out area is not excess spoil. It also would retain the exception for spoil used to blend the mined-out area with the surrounding terrain in non-steep slope areas. We propose to add a new provision clarifying that the definition does not include spoil material placed within the mined-out area in accordance with the thick overburden provisions of 30 CFR 816.105(b)(1), even if it exceeds the amount needed to restore the approximate original contour, unless that material is a continuation of an excess spoil fill. This provision would eliminate any ambiguity regarding thick overburden treatment in the existing rules and is consistent with the thick overburden provisions of section 515(b)(3) of SMCRA,[153] which makes no reference to the excess spoil provisions of section 515(b)(22) of SMCRA [154] in establishing requirements for the placement and grading of spoil within the mined-out area.

In summary, under our proposed rule, the general backfilling and grading requirements of 30 CFR 816.102 or 817.102 would apply to all spoil placed in the mined-out area for the purpose of restoring the approximate original contour within the parameters of those rules. The thick overburden performance standards of 30 CFR 816.105(b) would apply to all spoil placed in or on the mined-out area in excess of the approximate original contour parameters established in 30 CFR 816.102(a)(1) or 817.102(a)(1), with the exception of spoil that is a continuation of an excess spoil fill with a toe located outside the mined-out area. For all operations, the excess spoil disposal requirements of 30 CFR 816.71 and 816.74 or 817.71 and 817.74 would govern the construction of excess spoil fills, including any spoil placed above the approximate original contour within the mined-out area as part of the continuation of an excess spoil fill with a toe located outside the mined-out area.

Fill

We propose to define the term “fill” to clarify the meaning of this term as it is used in the context of surface coal mining operations under SMCRA and to differentiate this term from the term “fill material” as used and defined in the regulations implementing section 404 of the Clean Water Act.[155] See 33 CFR 323.2(e) and 40 CFR 232.2. Our proposed definition would include only permanent, non-impounding structures constructed for the purpose of disposing of excess spoil and solid coal mine waste, consistent with the common usage of this term in the context of coal mining operations. It would not include any impoundments or temporary structures. It has no relationship to whether construction of the excess spoil or coal mine waste disposal facility involves the discharge of dredged or fill material into waters of the United States under the Clean Water Act.

Fugitive Dust

We propose to remove this definition because it defines a term that we no longer use in our regulations. See the preamble discussions of proposed 30 CFR 780.12(f) and our proposed removal of existing 30 CFR 780.15 and 784.26 for further explanation.

Groundwater

This definition would replace the existing definition of the term “Ground water.” We propose to replace the words “ground water” with the single word “groundwater” throughout our regulations for internal consistency. We also propose to revise the definition to add clarity and to more closely resemble generally-accepted definitions in scientific and trade publications. Specifically, our proposed definition is adapted from Freeze and Cherry (1979) [156] and a publication entitled “The ABCs of Aquifers.” [157] Under the proposed rule, “groundwater” would mean subsurface water located in those portions of soils and geologic formations that are completely saturated with water; i.e., those zones where all the pore spaces and rock fractures are completely filled with water. We propose to add a sentence clarifying that this term includes subsurface water in both regional and perched aquifers, but that it does not include water in soil horizons that are temporarily saturated by precipitation events.

Perched aquifers occur where subsurface water collects above unsaturated rock formations as a result of a discontinuous impermeable layer.[158] Perched aquifers are fairly common in glacial sediments.[159] They also occur in other sedimentary formations where weathered layers, ancient soils or caliche (found in arid or semiarid areas) have created impermeable zones.[160] Perched aquifers are often removed by surface coal mining operations; they need not be restored unless restoration is needed to prevent material damage to the hydrologic balance outside the permit area.

Highwall Remnant

We propose to remove this definition because the term “highwall remnant” is self-explanatory and because the existing definition inappropriately limits the term to remining operations. There is no basis under SMCRA for this limitation.

Hydrologic Balance

The existing definition of hydrologic balance mentions water quality, but focuses on water quantity, water flow and movement, water storage, and changes in the physical state of water. We propose to revise this definition to include provisions relating to water quality and the impact of water quality on the biological condition of streams. Specifically, we propose to add language stating that the term includes interactions that result in changes in the chemical composition or physical characteristics of groundwater and surface water, which may affect the biological condition of streams and other water bodies. The proposed revisions are intended to clarify that water quality is as important as water quantity. They are consistent with the manner and context in which the term “hydrologic balance” appears in SMCRA. Sections 507, 508, 510, 515, and 516 of SMCRA[161] contain repeated references to water quality considerations. As summarized in Part II of this preamble, in many cases, adverse impacts on water quality and the resulting change in the biological condition of streams are the principal Start Printed Page 44472cause of material damage to the hydrologic balance outside the permit area as we proposed to define that term in 30 CFR 701.5.

Intermittent Stream

We propose to redefine “intermittent stream” in a manner that is substantively identical to the manner in which the U.S. Army Corps of Engineers defines that term in Part F of the 2012 reissuance of the nationwide permits under section 404 of the Clean Water Act. See 77 FR 10184, 10288 (Feb. 21, 2012). Adoption of a substantively-identical definition would promote consistency in application and interpretation of that term under both SMCRA and Clean Water Act programs.

We invite comment on whether the definition in the final rule should include language specifying that the U.S. Army Corps of Engineers has the ultimate authority to determine the point at which an ephemeral stream becomes an intermittent stream or a perennial stream and vice versa. Further, if the final rule includes language to that effect, we invite comment on whether the definition also should provide that any determination that the Corps makes concerning these transition points will be controlling for purposes of SMCRA regulatory programs. Commenters should discuss the applicability of two SMCRA provisions in this context. First, section 702(a) of SMCRA [162] provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act, any rule or regulation adopted under the Clean Water Act, or any state laws enacted pursuant to the Clean Water Act. Second, section 505(b) of SMCRA [163] provides that any provision of any state law or regulation may not be construed to be inconsistent with SMCRA if it “provides for more stringent land use and environmental controls and regulations of surface coal mining and reclamation operation[s] than do the provisions of this Act or any regulation issued pursuant thereto.” In other words, should our regulations allow states to adopt and apply stream definitions in a manner that would protect a greater length of stream than would the Corps determinations?

Our existing definition has two principal differences with the Corps' definition that we propose to adopt. First, paragraph (b) of our existing definition of an intermittent stream would not consider a stream with a base flow resulting from the melting of a snowpack to be an intermittent stream because the snowpack does not lie below the local water table and because snowmelt is not considered groundwater. However, the preamble to the definition of “ephemeral stream” that the Corps adopted as part of the 2012 reissuance of the nationwide permits under section 404 of the Clean Water Act states that snowmelt contributes to the flow of intermittent and perennial streams, especially in areas with deep snow packs, and that melting snow should not be considered a precipitation event because the development of a snowpack occurs over the course of a winter season. See 77 FR 10184, 10262 (Feb. 21, 2012). In essence, the preamble discussion would allow a stream originating from a melting snowpack to be considered an intermittent stream even though the definition of “intermittent stream” requires groundwater as the source of base flow. We invite comment on whether we should revise our proposed definition of “intermittent stream” to include language consistent with the discussion of snowmelt in the preamble to the Corps' definition of “ephemeral stream.”

Second, we propose to remove paragraph (a) of our existing definition of “intermittent stream.” That paragraph automatically designates any stream or reach of a stream that drains a watershed of at least one square mile as an intermittent stream. This provision is inconsistent with generally-accepted stream classification systems because it is based on watershed size rather than streambed characteristics and duration and source of streamflow. For example, one study in West Virginia found perennial streams with a median drainage area of less than 0.1 square mile and intermittent flows with a median drainage area of 14.5 acres, both of which are much smaller than one square mile (640 acres).[164] On the other hand, ephemeral streams in arid regions can have drainage areas of dozens of square miles. Furthermore, the existing definition could be construed as meaning that all streams with a watershed greater than one square mile are intermittent, even when they would otherwise be classified as perennial streams.

We originally adopted the watershed-size criterion because Alabama and Illinois found it easy to administer and apply and because we believed that a stream with a watershed of that size has a potential for flood volumes that would necessitate application of the stream-channel diversion requirements.[165] As explained below, we no longer find either reason compelling.

First, the easy-to-administer argument is valid only if the watershed-size criterion was the only criterion for determining whether a stream is intermittent. However, that is not the case. The existing definition also provides that any stream that is below the local water table for at least part of the year and obtains its flow from both surface runoff and groundwater discharge is an intermittent stream. As discussed above, both perennial and intermittent streams often have watersheds much smaller than one square mile, so the permit applicant and the regulatory authority still must conduct a hydrological evaluation of streams in watersheds smaller than one square mile to determine whether they are nonetheless intermittent or perennial based on the source of streamflow.

With respect to the second reason, the possibility of flood damage from diversion of an otherwise-ephemeral stream with a watershed greater than one square mile does not justify retention of a definition of intermittent stream that is not consistent with definitions used by the U.S. Army Corps of Engineers and the scientific community. The preamble to 30 CFR 816.43 and 817.43 requests comment on whether we should revise our regulations governing diversions to adopt design requirements based on whether the diversion is permanent or temporary rather than on whether the flow being diverted is perennial, intermittent, or ephemeral.

Land Use

We propose to revise the introductory text of this definition for clarity and to add a sentence specifying that the individual land use categories in the definition are the categories to be used in the regulatory program. In addition, we propose to remove the third sentence of the first paragraph of the existing definition. That sentence reads: “Changes of land use from one of the following categories to another shall be considered as a change to an alternative land use which is subject to approval by the regulatory authority.” This sentence is inconsistent with the revisions that we are proposing to 30 CFR 780.24 and 784.24, as discussed later in this preamble. Under our proposed revisions to those rules, a proposed postmining Start Printed Page 44473land use that differs from the actual premining land use would not require approval as a higher or better use if the land as it existed before mining was already capable of supporting that use in its existing condition. Moreover, this change would better implement section 515(b)(2) of SMCRA,[166] which provides that the permittee must “restore the land affected to a condition capable of supporting the uses [not just the use that existed immediately prior to mining] which it was capable of supporting prior to any mining, or higher or better uses of which there is reasonable likelihood.” This statutory language indicates that the alternative postmining land use requirements in our rules should apply only when the applicant or permittee proposes a higher or better use, not a use that the land was capable of supporting before mining.

We also propose to revise the definition of cropland in paragraph (a) of the definition of land use to more accurately and inclusively describe the types of plantings and planting settings associated with that land use category. Specifically, we propose to include commercial nursery plantings, vegetables, fruits, nuts, and other plants typically grown in fields, orchards, vineyards, and similar settings involving intensive agricultural uses.

Material Damage

We propose to revise a cross-reference to 30 CFR 784.20 in this definition to be consistent with our proposed redesignation of existing § 784.20 as § 784.30. We propose no other changes to this definition, which applies only in the context of damage that occurs as a result of subsidence caused by underground mining operations. It is not related to, nor does it replace or supersede, the definition of “material damage to the hydrologic balance outside the permit area” or requirements related to that definition.

Material Damage to the Hydrologic Balance Outside the Permit Area

Our existing regulations do not define this term, which, as discussed below, is central to one of the principal findings required for approval of a permit application. Section 510(b)(3) of SMCRA [167] specifies that the regulatory authority may not approve a permit application unless the regulatory authority has “made an assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance specified in section 507(b).” This assessment is generally referred to as the cumulative hydrologic impact assessment (CHIA). Section 507(b)(11) of SMCRA,[168] the pertinent part of the SMCRA section referenced in the quote above, requires that each permit application include—

a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and ground water systems including the dissolved and suspended solids under seasonal flow conditions and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the regulatory authority of the probable cumulative impact of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability.

Section 510(b)(3) also specifies that the regulatory authority may not approve a permit unless the application affirmatively demonstrates and the regulatory authority finds in writing that the proposed operation “has been designed to prevent material damage to the hydrologic balance outside the permit area.” However, SMCRA does not define or explain the meaning of the term “material damage to the hydrologic balance outside the permit area.”

Our existing regulations do not fully integrate the implementation of sections 507(b)(11) and 510(b)(3) of SMCRA [169] because they do not require collection of sufficient data for the proposed permit area and surrounding areas to prepare an adequate CHIA and because they do not define or establish criteria for determining material damage to the hydrologic balance outside the permit area. In particular, they do not specifically require data related to the biological community in streams or data comprised of a complete suite of the chemical and physical constituents and properties of groundwater and surface water. Without sound baseline information on surface-water and groundwater quality and quantity and the biological communities in streams, the regulatory authority cannot prepare an adequate cumulative hydrologic impact assessment or determine whether the proposed mining operation has been designed to prevent material damage to the hydrologic balance outside the permit area. This proposed rule is intended to correct this problem by adding a definition of the term “material damage to the hydrologic balance outside the permit area” and by refining and expanding baseline data requirements for permit applications, which we discuss later in this preamble in connection with proposed 30 CFR 780.19. These two changes would promote more effective implementation of sections 507(b)(11) and 510(b)(3) of SMCRA [170] and, in combination with the improved monitoring requirements in proposed 30 CFR 780.23 and 816.35 through 816.37, would better protect streams.

In developing a definition of “material damage to the hydrologic balance outside the permit area,” we looked to our previous statements on this matter in preambles to our regulations concerning hydrology and geology. We also examined other provisions of SMCRA and the legislative history of section 510(b)(3) of SMCRA.[171] Several commenters on a proposed rule on hydrology and geology that we published on June 25, 1982 (47 FR 27712), requested that we add a definition of material damage to the hydrologic balance outside the permit area to our regulations. However, the preamble to the final rule that we adopted in response to that proposed rule explains that we declined the requests for a definition “because the gauges for measuring material damage may vary from area to area and from operation to operation. OSM[RE] has not established fixed criteria, except for those established under §§ 816.42 and 817.42 related to compliance with water-quality standards and effluent limitations.” [172] The preamble provides no further explanation of that statement, but it does state that we agreed with commenters that “regulatory authorities should establish criteria to measure material damage.” [173]

In the 30 years since we published that preamble, very few states have adopted a definition or established programmatic criteria for material damage to the hydrologic balance outside the permit area. Therefore, adoption of a federal definition of material damage to the hydrologic balance outside the permit area is both necessary and appropriate to ensure effective and consistent application of that term.

In addition, the absence of either a federal definition of or criteria for material damage to the hydrologic balance outside the permit area has made it difficult for us to determine whether states are effectively implementing their counterparts to 30 CFR 773.15(c) and section 510(b)(3) of Start Printed Page 44474SMCRA.[174] As we have long recognized, definitions can help us more effectively implement SMCRA: “Many of the terms used by Congress are not defined or explained and thus are too vague to be enforced effectively until given more precise meanings.” [175]

The legislative history of section 510(b)(3) of SMCRA [176] provides little illumination as to the meaning of material damage to the hydrologic balance outside the permit area and thus is of little assistance in developing a definition. The term first appears in H.R. 2, the House version of the legislation that ultimately became SMCRA. Earlier unsuccessful precursors to SMCRA used the phrase “significant irreparable offsite damage,” which also was undefined. In explaining the change in terminology, the Committee report states only that the previous phrase was “deleted in favor of language that specifies that the mine is to be designed to prevent damage to the hydrologic balance outside the permit area.” [177] There is no discussion of whether, in making this substitution, Congress intended to eliminate the elements of “significant” and “irreparable” from the standard, or whether the new language is merely a nonsubstantive change in wording.

When we declined to define “material damage to the hydrologic balance outside the permit area” in 1983, we noted that the only fixed criteria that we established at the time for such damage were those included in “§§ 816.42 and 817.42 related to compliance with water-quality standards and effluent limitations.” However, we do not think it appropriate to interpret this preamble statement as meaning that any exceedance of water quality standards or effluent limitations, no matter how minor and no matter what the cause, would constitute material damage to the hydrologic balance outside the permit area.

Our proposed definition reflects our conclusion that the mere possibility of an acid or toxic discharge or other type of degradation of surface water or groundwater does not provide an adequate basis for permit denial on the grounds that it would not prevent material damage to the hydrologic balance outside the permit area. Instead, for a permit to be denied on this basis, there must be some probability of the formation of acid or toxic mine drainage that may continue after the completion of mining and land reclamation, and there must be a reasonable likelihood that the reclamation plan proposed by the applicant will not be capable of preventing the formation of that drainage. We base our conclusion, in part, on our prior statements relating to the preparation of cumulative hydrologic impact assessments. We find these statements to be particularly instructive because section 510(b)(3) of SMCRA,[178] which refers to those assessments, also contains the term “material damage to the hydrologic balance outside the permit area.” In particular, in the preamble to the 1983 version of 30 CFR 780.21(g), we stated that the cumulative hydrologic impact assessment must be “accomplished in an environmentally and scientifically sound fashion,” and that it “cannot reasonably be extended to include remote and speculative impacts.” [179] Instead, we determined that the assessment “should be based upon those impacts that have a reasonable likelihood for occurring and which are sufficiently defined to enable the regulatory authority to reach a decision.” [180]

That preamble, however, does not define or otherwise clarify the meaning of “reasonable likelihood” and “sufficiently defined.” Thus, we looked to other sources, including related provisions of SMCRA, to provide some guidance as to what material damage to the hydrologic balance outside the permit area means in the context of water quality parameters for which there are no effluent limitations. Section 508(a)(13) of SMCRA [181] requires that each reclamation plan include—

[A] detailed description of the measures to be taken during the mining and reclamation process to assure the protection of:

(A) the quality of surface and ground water systems, both on- and off-site, from adverse effects of the mining and reclamation process;

(B) the rights of present users to such water; and

(C) the quantity of surface and ground water systems, both on- and off-site, from adverse effects of the mining and reclamation process or to provide alternative sources of water where such protection of quantity cannot be assured[.]

In 1979, we noted that this provision of SMCRA, along with sections 102, 510(b)(3), and 522(a) through (d) of the Act,[182] “requires that mining not be permitted at all, if reclamation cannot be feasibly performed to protect water uses. Thus, to the extent that mining would result in unacceptable discharges of sulfates and total dissolved solids, the regulatory authority should not issue permits for the areas involved.” [183] As that passage from the 1979 preamble indicates, we have never interpreted section 508(a)(13) of SMCRA [184] to operate as an absolute prohibition on mining operations that would have adverse effects on the hydrologic balance. In our judgment, this provision also does not supersede the performance standards in sections 515 and 516 of SMCRA,[185] which recognize that mining may cause some adverse effects on surface water and groundwater, particularly within the permit area. See, e.g., section 515(b)(10) of SMCRA,[186] which provides that surface coal mining and reclamation operations must be conducted “to minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation.” Significantly, this provision of SMCRA uses the term “minimize” rather than “prevent” when describing the standard that surface coal mining and reclamation operations must meet in this context.

With these considerations in mind, we have designed our proposed definition of material damage to the hydrologic balance outside the permit area to protect all designated uses of surface water and all existing and reasonably foreseeable uses of surface water and groundwater outside the permit area. Specifically, in relevant part, under our proposed definition, “material damage to the hydrologic balance outside the permit area” would mean any adverse impact from surface or underground mining operations on the quantity or quality of surface water or groundwater, or on the biological condition of a perennial or intermittent stream, that would preclude any designated surface-water use under sections 101(a) and 303(c) of the Clean Water Act [187] or any existing or reasonably foreseeable use of surface water or groundwater outside the permit area. Our proposed definition is consistent with our statement in the 1979 preamble that mining should not be permitted at all if reclamation cannot feasibly protect water uses.[188]

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States have developed multimetric bioassessment protocols for use in determining the biological condition of streams and other surface waters for purposes of preparing the water quality inventory required under section 305(b) of the Clean Water Act. Multimetric indices include metrics such as species richness, complexity, and tolerance as well as trophic measures. They provide a quantitative comparison (often referred to as an index of biological or biotic integrity) of the ecological complexity of biological assemblages relative to a regionally-defined reference condition. Under proposed 30 CFR 780.19(e)(2) and 784.19(e)(2), states would be required to establish a correlation between these index values and each designated use under sections 101(a) and 303(c) of the Clean Water Act, as well as any other existing or reasonably foreseeable uses. In other words, we anticipate that the SMCRA regulatory authority, with assistance from the appropriate Clean Water Act agencies, will define the range of index values required to support each existing, reasonably foreseeable, and designated use of the stream segment in question. Any change in the biological condition of the stream or other surface-water body, as documented by index scores resulting from use of the bioassessment protocol for monitoring purposes, that would preclude attainment or maintenance of an existing, reasonably foreseeable, or designated use of surface water would constitute material damage to the hydrologic balance outside the permit area if the change in scores is a result of the SMCRA operation. We seek comment on the effectiveness of using index scores from bioassessment protocols to ascertain impacts on existing, reasonably foreseeable, or designated uses. If you disagree with the use of index scores from bioassessment protocols, please identify a viable and scientifically-valid alternative.

The regulations implementing the Clean Water Act define “existing uses” as “those uses actually attained in a waterbody on or after November 28, 1975, whether or not they are included in the water quality standards.” See 40 CFR 131.3. In the context of this proposed definition, we intend to interpret the term “existing uses” in a similar fashion; i.e., existing uses would be those uses in existence at the time of preparation of the permit application, regardless of whether those uses are designated uses. Alternatively, we may replace the term “existing uses” with “premining uses” for purposes of clarity. We invite comment on this topic.

The second part of the proposed definition of “material damage to the hydrologic balance outside the permit area” provides that this term means any adverse impact from surface coal mining and reclamation operations or from underground mining activities, including any adverse impacts from subsidence that may occur as a result of underground mining activities, on the quality or quantity of surface water or groundwater, or on the biological condition of a perennial or intermittent stream, that would impact threatened or endangered species, or have an adverse effect on designated critical habitat, outside the permit area in violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. This provision is intended to ensure compliance with both the Endangered Species Act and the fish and wildlife protection provisions of sections 515(b)(24) and 516(b)(11) of SMCRA. We also are considering alternative language for the second part of the definition. That alternative would replace the phrase “that would impact threatened or endangered species, or have an adverse effect on designated critical habitat, outside the permit area in violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.” with “that would jeopardize the continued existence of threatened or endangered species, or result in the destruction or adverse modification of designated critical habitat, outside the permit area in violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.” The second alternative would parallel the language of existing and proposed 30 CFR 816.97(b) and 817.97(b).

State water quality standards and associated water quality criteria provide a starting point for establishment of material damage criteria under SMCRA for surface waters, but they are not the endpoint. SMCRA material damage criteria must be no less stringent than Clean Water Act water quality standards and criteria in all cases, but, in some situations, they may need to be more stringent to protect unique uses or to comply with the Endangered Species Act. In addition, the SMCRA regulatory authority may need to establish numerical material damage criteria for parameters of concern for which there are no numerical water quality standards or water quality criteria under the Clean Water Act.

The Clean Water Act does not apply to groundwater, so the SMCRA regulatory authority would need to use best professional judgment to establish material damage criteria to protect existing and reasonably foreseeable uses of groundwater. Material damage criteria for groundwater also would need to take into consideration the needs of any threatened or endangered species.

The proposed definition does not differentiate between permanent or long-term impacts and temporary or short-term impacts. Any impact that would preclude a designated, existing, or reasonably foreseeable use of surface water outside the permit area, or an existing or reasonably foreseeable use of groundwater outside the permit area, would constitute material damage to the hydrologic balance, regardless of the duration of the impairment. Isolated noncompliant discharges would not be considered material damage unless those discharges are of a magnitude sufficient to preclude a protected use. We invite comment on whether the definition should exclude temporary adverse impacts if the permit applicant can demonstrate that there will be no long-term adverse impacts after mining is completed.

Nothing in the proposed definition is intended to supersede the water supply replacement provisions of sections 717 and 720 of SMCRA.[189] In other words, material damage to the hydrologic balance outside the permit area would not exist solely because the operation destroys or damages protected water supplies, provided that the permittee replaces those supplies in accordance with applicable regulatory program requirements (i.e., proposed 30 CFR 816.40 or 817.40) and the definition of “replacement of water supply” in 30 CFR 701.5.

The definition would apply to adverse impacts from subsidence resulting from underground mining operations and to other adverse impacts resulting from underground mining operations; e.g., dewatering a stream by mining through a fracture zone or dewatering an aquifer or saturated zone that serves as a water supply for legitimate uses. It would not be limited to the impacts of surface mining activities or the impacts of activities conducted on the surface of land in connection with an underground coal mine. Section 510(b)(3) of SMCRA[190] applies to all applications for permits or permit revisions. This provision has never contained an exception for impacts from underground mining operations or for any other type of surface coal mining operations for which a permit is required.

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Paragraphs (a) and (d) of section 516 of SMCRA[191] require that the Secretary take into consideration the distinct difference between surface and underground coal mining when promulgating regulations for underground mining operations. However, this provision does not justify allowing underground mining operations or subsidence resulting from underground mining operations to dewater or degrade a stream to the extent of precluding an existing, reasonably foreseeable, or designated use of that stream. Doing so would hold underground mines to a lesser standard of environmental protection than surface mines. Nothing in the environmental protection purposes of SMCRA, as set forth in paragraphs (a), (c), (d), and (f) of section 102 of the Act,[192] suggests or supports the adoption of a lesser standard for underground mines.

We are aware of concerns that including impacts from subsidence in the definition could effectively prohibit use of the longwall mining method or other high-extraction methods of underground mining to recover a substantial proportion of coal reserves. However, application of this definition to the area overlying proposed underground workings and the area within a reasonable angle of draw from the perimeter of those workings would not prohibit all mining operations that would result in subsidence of streams. It would only prohibit mining operations that would result in dewatering of a stream to the extent that the stream would no longer be able to support existing or reasonably foreseeable uses or designated uses of the stream under the Clean Water Act and for which there are no viable measures to prevent this impact. Our draft regulatory impact analysis found that the proposed rule, including this definition, would not strand or sterilize any reserves; i.e., the proposed rule would not make any coal reserves that are technically and economically feasible to mine under baseline conditions unavailable for extraction.

Underground mine operators cannot avoid application of section 510(b)(3) of SMCRA[193] by drawing the permit boundaries for the mine to include undisturbed areas that may be affected by subsidence. In revising the definition of “permit area” in 1983, we specifically rejected a suggestion that the definition should include all areas overlying underground workings. Instead, we stated that the permit area consists of all “areas for which reclamation operations are planned and for which the performance bond can be accurately set,” which, we further explain, would not include areas with subsidence potential but no planned disturbance.[194] We recognize that some state regulatory programs may include the area overlying the proposed underground workings and other undisturbed areas with subsidence potential within their definitions of “permit area.” Should our proposed definition of material damage to the hydrologic balance outside the permit area become final, those states would need to specify that the prohibition on the approval of permit applications for operations that would result in material damage to the hydrologic balance outside the permit area applies to all lands to which that prohibition would apply under the federal regulations. In other words, state regulatory authorities would have to ensure that the prohibition would apply to all lands overlying the underground mine workings and to all lands within a reasonable angle of draw [195] from the perimeter of those workings, if those lands are not otherwise disturbed by surface operations or facilities associated with the underground mine.

Mountaintop Removal Mining

We propose to consolidate the descriptions of mountaintop removal mining operations in existing 30 CFR 785.14(b) and 824.11(a)(2) and (3) into a new definition in § 701.5 for clarity and ease of use. This new definition is consistent with section 515(c)(2) of SMCRA,[196] which pertains to operations that “remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill . . . by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, and capable of supporting postmining uses in accord with the requirements of this section.” We anticipate that this definition also may be useful in correcting misconceptions about the meaning of this term and what types of operations it includes.

Occupied Residential Dwelling and Structures Related Thereto

We propose to revise a cross-reference to 30 CFR 784.20 in this definition to be consistent with our proposed redesignation of existing § 784.20 as § 784.30. We propose no other substantive revisions to this definition—only a plain language revision to the last sentence.

Parameters of Concern

We propose to add a definition of this term because we use this term extensively in our proposed rule. Under the proposed definition, parameters of concern would consist of those chemical or physical characteristics or properties of surface water or groundwater that could be altered by mining activities in a manner that would adversely impact the quality of surface water or groundwater or the biological condition of a stream.

Perennial Stream

We propose to redefine “perennial stream” in a manner that is substantively identical to the manner in which the U.S. Army Corps of Engineers defines that term in Part F of the 2012 reissuance of the nationwide permits under section 404 of the Clean Water Act. See 77 FR 10184, 10288 (Feb. 21, 2012). Adoption of a substantively identical definition would promote consistency in application and interpretation of that term under both SMCRA and Clean Water Act programs.

We invite comment on whether the definition in the final rule should include language specifying that the U.S. Army Corps of Engineers has the ultimate authority to determine the point at which an ephemeral stream becomes an intermittent stream or a perennial stream and vice versa. Further, if the final rule includes language to that effect, we invite comment on whether the definition also should provide that any determination that the Corps makes concerning these transition points will be controlling for purposes of SMCRA regulatory programs. Commenters should discuss the applicability of two SMCRA provisions in this context. First, section 702(a) of SMCRA [197] provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act, any rule or regulation adopted under the Clean Water Act, or any state laws enacted pursuant to the Clean Water Act. Second, section 505(b) of SMCRA [198] provides that any provision of any state law or regulation may not be construed to be inconsistent with SMCRA if it “provides for more stringent land use and environmental controls and regulations of surface coal mining and Start Printed Page 44477reclamation operation[s] than do the provisions of this Act or any regulation issued pursuant thereto.” In other words, should our regulations allow states to adopt and apply stream definitions in a manner that would protect a greater length of stream than would the Corps determinations?

Our existing definition has two principal differences with the Corps' definition that we propose to adopt. First, our existing definition of a perennial stream would not consider a stream with a base flow resulting from the melting of a snowpack to be a perennial stream because the snowpack does not lie below the local water table and because snowmelt is not considered groundwater. However, the preamble to the definition of “ephemeral stream” that the Corps adopted as part of the 2012 reissuance of the nationwide permits under section 404 of the Clean Water Act states that snowmelt contributes to the flow of intermittent and perennial streams, especially in areas with deep snow packs, and that melting snow should not be considered a precipitation event because the development of a snowpack occurs over the course of a winter season. See 77 FR 10184, 10262 (Feb. 21, 2012). In essence, the preamble discussion would allow a stream originating from a melting snowpack to be considered a perennial stream even though the definition of “perennial stream” requires groundwater as the source of base flow. We invite comment on whether we should revise our proposed definition of “perennial stream” to include language consistent with the discussion of snowmelt in the preamble to the Corps' definition of “ephemeral stream.”

Second, the Corps' definition of “perennial stream” refers to continuous flow year-round “during a typical year.” Our existing definition refers to continuous flow during all of the calendar year. The Corps' definition—and hence our proposed definition—reflect the fact that perennial streams or segments of those streams may cease flowing during periods of sustained below-normal precipitation. Our proposed adoption of the Corps' definition would have the effect of clarifying that those stoppages do not result in reclassification of the stream as intermittent.

Reclamation

The existing definition of reclamation in 30 CFR 701.5 provides that this term “means those actions taken to restore mined land as required by this chapter to a postmining land use approved by the regulatory authority.” This definition is too narrow and does not fully implement SMCRA.

First, the existing definition applies only to the mined area, not to the entire disturbed area. Section 102(e) of SMCRA [199] states that one of the purposes of SMCRA is to “assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations.” Among other things, the definition of “surface coal mining operations” in section 701(28) of SMCRA [200] includes all activities conducted on the surface of lands in connection with a surface coal mine. Those activities are not limited to mined areas. In addition, paragraph (B) of the definition includes “the areas upon which such activities occur or where such activities disturb the natural land surface.” Therefore, we propose to apply the definition to the entire disturbed area, rather than limiting it to the mined area.

Second, the existing definition includes only actions taken to restore land to an approved postmining land use, not to all actions taken to restore land and water to the conditions required by the Act and regulatory program. Third, the existing definition implies that the land must be restored to an actual postmining land use when, in fact, section 515(b)(2) of SMCRA[201] requires only that the land be restored to a condition in which it is capable of supporting the uses it was capable of supporting prior to any mining or, subject to certain restrictions, higher or better uses.

The proposed definition corrects these deficiencies. Our proposed rule would define reclamation as meaning those actions taken to restore the mined land and associated disturbed areas to a condition in which the site is (1) capable of supporting the uses it was capable of supporting prior to any mining or any higher or better uses approved by the regulatory authority, and (2) meets all other requirements of the permit and regulatory program that pertain to restoration of the site. In addition, our proposed definition specifically details what reclamation means for sites with discharges that require treatment. For those sites, we propose to revise the definition to specify that the term also includes those actions taken or that must be taken to eliminate, remediate or treat those discharges, including both discharges from the mined area and all other discharges that are hydrologically connected to either the mined area or the mining operation, regardless of whether those discharges are located within the disturbed area.

However, nothing in this proposed definition should be construed as meaning that the regulatory authority may approve a permit application for an operation that will cause, or that is likely to cause, a postmining discharge that requires treatment to prevent pollution. Doing so would violate SMCRA as explained in the acid mine drainage policy statement that we issued on March 31, 1997.[202]

Reclamation Plan

We propose to add this definition to clarify which provisions of our permit application requirements are considered part of the reclamation plan. Section 701(21) of SMCRA [203] defines “reclamation plan” as “a plan submitted by an applicant for a permit under a State program or Federal program which sets forth a plan for reclamation of the proposed surface coal mining operations pursuant to section 508 [of SMCRA.]” In this proposed rule, we propose to adopt a streamlined version of the statutory definition that complies with plain language principles, eliminates the unnecessary reference to state or federal programs, and contains adaptations needed to reflect the structure and organization of the regulations that correspond to the reclamation plan requirements of SMCRA. Specifically, the proposed rule would replace the reference to section 508 of SMCRA [204] with references to 30 CFR parts 780, 784, and 785. Part 780 contains the rules that implement section 508 of SMCRA.[205] Part 784 is the underground mining counterpart of part 780. Part 785 contains permit application requirements, including reclamation plan requirements, that apply to special categories of mining.

Renewable Resource Lands

We propose to revise this definition to clarify that it includes recharge areas for surface waters, not just recharge areas for underground waters. We find no legal or technical reason to exclude recharge areas for lakes, ponds, and wetlands from classification as renewable resource lands. Section Start Printed Page 44478522(a)(3)(C) of SMCRA [206] uses this term in the context of establishing criteria for designating lands as unsuitable for certain types of surface coal mining operations. Specifically, it provides that lands are eligible for designation if surface coal mining operations would “affect renewable resource lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply . . .” This statutory provision further provides that those lands “include aquifers and aquifer recharge areas,” but it does not limit the scope of that provision to those areas. Many towns and cities depend upon surface-water reservoirs for their water supply, which means that paragraph (a)(3)(C) would include the watersheds of those reservoirs. Surface disturbances like mining that involve removal of vegetation can significantly impact both the quantity and quality of water available from those watersheds.

Replacement of Water Supply

We propose to revise this definition by moving existing paragraphs (a) and (b), which describe how the water supply replacement obligation may be satisfied, to the performance standards at 30 CFR 816.40 and 817.40. Existing paragraphs (a) and (b) of the definition are more appropriately categorized as performance standards, which means that they should be codified as part of the performance standards in subchapter K, not as part of the definition of this term.

Temporary Diversion

We propose to revise this definition in a manner that avoids using part of the term itself (“diversion”) as part of the definition. In addition, the existing definition, which includes only diversions of streams and overland flow, could be construed as excluding diversion channels used to convey surface runoff or pit water to a siltation structure or treatment facility. We propose to revise the definition to specifically include those channels.

Waters of the United States

To promote consistency with the Clean Water Act, we propose to define this term as having the same meaning as the corresponding definition in 40 CFR 230.3(s), which is part of the Section 404(b)(1) Guidelines under the Clean Water Act

C. Part 773: Requirements for Permits and Permit Processing

1. Section 773.5: How must the regulatory authority coordinate the permitting process with requirements under other laws?

Section 773.5 specifies that each regulatory program must provide for the coordination of review and issuance of SMCRA permits with applicable provisions of various federal laws. It implements, in part, section 503(a)(6) of SMCRA,[207] which requires that each state regulatory program establish “a process for coordinating the review and issuance of permits for surface coal mining and reclamation operations with any other Federal or State permit process applicable to the proposed operations.”

We propose to add the Clean Water Act, 33 U.S.C. 1251 et seq., to the list of laws for which coordination is required under both state and federal regulatory programs. Almost all surface coal mining operations require Clean Water Act permits and both SMCRA and the Clean Water Act are concerned with protection of water quality, so it makes sense to coordinate the SMCRA and Clean Water Act permitting processes. Coordination of the SMCRA and Clean Water Act permitting processes also would assist in reducing or eliminating potential conflicts between SMCRA and Clean Water Act permits. That outcome would be consistent with section 702(a) of SMCRA,[208] which provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act, any rule or regulation adopted under the Clean Water Act, or any state laws enacted pursuant to the Clean Water Act.

In addition, we propose to add the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4371 et seq., to the list of laws for which a coordination process is required under federal regulatory programs. There is no need or basis to apply this coordination requirement to state regulatory programs approved under SMCRA because the Departmental Manual excludes permit applications under state SMCRA regulatory programs from NEPA compliance. See 516 DM 13.3.

Finally, we propose to clarify that only federal regulatory programs must establish a process for coordination with the National Historic Preservation Act of 1966 (NHPA), 54 U.S.C. 300101 et seq. This change is consistent with National Mining Association v. John M. Fowler, 324 F.3d 752 (D.C. Cir. 2003), in which the court held that projects licensed or permitted by state and local agencies pursuant to a delegation or approval by a federal agency are not federally funded or federally licensed undertakings for purposes of section 106 of the NHPA.

2. Section 773.7: How and when will the regulatory authority review and make a decision on a permit application?

We propose to restructure 30 CFR 773.7(a) to improve clarity and eliminate a grammatical error in the existing language. There are no substantive revisions to this paragraph.

We also propose to add 30 CFR 773.7(b)(2), which would list the factors that the regulatory authority must consider in determining what constitutes a reasonable time for notifying a permit applicant whether the application has been approved or disapproved, in whole or in part. The factors in proposed paragraphs (b))(2)(i) through (iv) reflect the factors listed in section 514(b) of SMCRA.[209] Proposed paragraph (b)(2)(v) would require consideration of the time required to complete the interagency permitting coordination process under 30 CFR 773.5.

Finally, we propose to redesignate existing 30 CFR 773.7(b) as 30 CFR 773.7(c) and revise that paragraph to specifically state that an applicant for the transfer, assignment, or sale of permit rights has the burden of proof for establishing that the application is in compliance with all regulatory program requirements. We propose to make this change because the transfer, assignment, or sale of permit rights is a type of permit revision, which means that an application of that nature is subject to section 510(a) of SMCRA.[210] In relevant part, that paragraph of the Act states that the applicant for a permit or permit revision has the burden of establishing that the application is in compliance with all requirements of the applicable regulatory program.

3. Section 773.15: What findings must the regulatory authority make before approving a permit application?

Most of the changes that we propose to make to this section result from either the application of plain language principles or an effort to clarify the meaning and scope of the findings that the regulatory authority must make before approving a permit application.

Proposed paragraph (c)(2) would clarify that the finding that the proposed Start Printed Page 44479permit area is not within an area designated as unsuitable for surface coal mining operations under 30 CFR parts 762 and 764 or 769 applies only to lands that are designated as unsuitable for the type of surface coal mining operations that the permit applicant proposed to conduct. For example, lands may be designated as unsuitable only for surface mining, in which case the regulatory authority may approve a permit for an underground mine. Similarly, proposed paragraph (c)(3) would clarify that the finding that the proposed permit area is not within an area subject to the prohibitions of 30 CFR 761.11 does not apply in situations in which one or more of the exceptions (valid existing rights, the existing operation exemption, landowner consent, joint approval, etc.) to those prohibitions applies.

We propose to revise the finding in paragraph (e) concerning the assessment of the cumulative hydrologic impacts of mining by adding paragraph (e)(3), which would require that the regulatory authority find that it has inserted into the permit criteria defining material damage to the hydrologic balance outside the permit area on a site-specific basis, expressed in numerical terms for each parameter of concern, as required by § 780.21(b) or § 784.21(b). Our proposed revision is intended to ensure that permit-specific criteria are both established and readily available to the permittee, inspectors, and permit reviewers.

Existing paragraph (j) provides that, before approving a permit application, the regulatory authority must find that the proposed operation is not likely to either jeopardize the continued existence of threatened or endangered species or result in destruction or adverse modification of critical habitat, as determined under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. In response to discussions with the U.S. Fish and Wildlife Service concerning compliance with the Endangered Species Act, we propose to modify paragraph (j) to extend the finding to include species that the Secretary has proposed for listing as threatened or endangered.[211] The proposed change is consistent with section 7(a)(4) of the Endangered Species Act, which provides that “[e]ach Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 4 or result in the destruction or adverse modification of critical habitat proposed to be designated for such species.” It also would assist in implementing the fish and wildlife protection provisions of sections 515(b)(24) and 516(b)(11) of SMCRA. The conferencing requirement of section 7(a)(4) of the Endangered Species Act is not the same as the consultation requirement for threatened and endangered species under section 7(a)(2) of the Endangered Species Act. Also, the U.S. Fish and Wildlife Service is responsible for determining allowable take of species listed as threatened or endangered.

We propose to remove existing paragraph (m), which applies to permits to be issued under 30 CFR 785.25 (permits containing lands eligible for remining). This finding is not needed because it merely repeats requirements already stated in 30 CFR 785.25. In addition, paragraph (m) is duplicative of paragraph (h), which requires a finding that the applicant has satisfied all applicable requirements of 30 CFR part 785. Removal of existing paragraph (m) would result in the redesignation of existing paragraph (n) as paragraph (m).

In addition, we propose to add a new paragraph (n), which would require that the regulatory authority find that the applicant has demonstrated that the operation has been designed to prevent the formation of discharges that would require long-term treatment after mining has been completed. The regulatory authority also would be required to find that the applicant has demonstrated that there is no credible evidence that the design of the operation will not work as intended to prevent the formation of discharges of that nature.

Avoiding creation of discharges that require long-term treatment benefits both the permittee (because the permittee would bear the cost of treating the discharge) and the public (because there is no risk of environmental damage or use of tax receipts to pay for treatment if the permittee defaults). Adoption of proposed paragraph (n) would incorporate into regulation one of the provisions of the policy entitled “Hydrologic Balance Protection: Policy Goals and Objectives on Correcting, Preventing, and Controlling Acid/Toxic Mine Drainage” [212] that we issued on March 31, 1997. In that policy, we explain that approval of a permit that would result in the creation of a discharge requiring long-term treatment would be inconsistent with SMCRA: “In no case should a permit be approved if the determination of probable hydrologic consequences or other reliable hydrologic analysis predicts the formation of a postmining pollutional discharge that would require continuing long-term treatment without a defined endpoint.” [213] The regulatory authority may rely upon data from similar completed mining operations under conditions that are representative of those found at the site of the proposed operation as credible evidence for this demonstration and finding.

We explained our authority for this provision when we issued our policy document:

Several commenters expressed concern that OSM exceeded its statutory authority by focusing on section 510(b)(3) of SMCRA, which provides that no permit application may be approved unless the regulatory authority finds that the operation has been designed to prevent material damage to the hydrologic balance outside the permit area, and interpreting that section as requiring the prevention of AMD [acid mine drainage] formation. The commenters noted that sections 515(b)(10) and 516(b)(9) of SMCRA refer to minimization (rather than prevention) of hydrologic disturbances and avoidance (rather than the prevention) of AMD, with the prevention of AMD formation being only one of the three avoidance mechanisms listed in these sections.

Response: The minimization and avoidance provisions of sections 515(b)(10) and 516(b)(9) of SMCRA do not negate the material damage prevention requirement of section 510(b)(3). Furthermore, the Act specifies that the provisions cited by the commenters apply only during mining and reclamation. OSM interprets this limitation as meaning that conducting operations in a manner likely to result in AMD production is acceptable only when AMD formation is expected to be a temporary phenomenon. In other words, discharge treatment is an appropriate means of avoiding AMD and minimizing damage to the hydrologic balance only when the need for treatment has a defined endpoint.

* * * * *

The approach adopted in the policy statement is fully consistent with the Rith Energy decision in which the IBLA [Interior Board of Land Appeals] upheld OSM's refusal to approve a mining plan that sought to minimize, rather than avoid, AMD. In that case, the IBLA agreed with OSM that “the statute, as properly read, requires the agency to minimize disturbance to the prevailing hydrologic balance by avoiding acid or toxic mine drainage. Minimizing the contact of water and toxic-producing deposits, as argued by petitioner [Rith Energy], is not the standard.” 111 IBLA 249. The policy Start Printed Page 44480statement accords with Rith Energy because it provides that “[p]ermits may only be approved where the operation is designed to ensure that off-site material damage to the hydrologic balance will be prevented.” (Emphasis added.) Permittees may not plan in advance to allow AMD to occur and then simply mitigate the effects of the AMD.[214]

Finally, we propose to add a new required finding in paragraph (o) in response to discussions with the U.S. Fish and Wildlife Service concerning compliance with the Endangered Species Act. This finding would specify that, to the extent possible using the best technology currently available, the proposed operation has been designed to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, as identified in § 779.20 or § 783.20, and to enhance those resources where practicable, as required under § 780.16 and § 784.16. The proposed language is similar to sections 515(b)(24) and 516(b)(11) of SMCRA [215] and is intended to reinforce those statutory provisions.

4. Section 773.17: What conditions must the regulatory authority place on each permit issued?

We propose to revise paragraph (c) of this section to require that the permittee comply with all applicable requirements of the Act rather than all applicable performance standards of the Act. We propose to make this change because the condition also requires compliance with the requirements of the regulatory program, which means that the applicable performance standards would be in the program, not the Act.

We propose to revise paragraph (e) of this section to require that the permittee notify the regulatory authority and other appropriate state and federal regulatory agencies of any adverse impact to the environment or public health or safety as a result of a noncompliance with any term or condition of the permit. Notification would allow those agencies to take any necessary action to minimize the impacts of the noncompliance on the environment or public health or safety, consistent with the purpose stated in section 102(a) of SMCRA.[216]

We propose to add a new permit condition in paragraph (h) of this section to require that the permittee obtain all necessary authorizations, certifications, and permits in accordance with Clean Water Act requirements before conducting any activities that require approval or authorization under the Clean Water Act. The new condition would be consistent with section 702(a) of SMCRA,[217] which provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act,[218] or any rule or regulation adopted under the Clean Water Act, or any state laws enacted pursuant to the Clean Water Act. It also would be consistent with our efforts to enhance coordination between the SMCRA and Clean Water Act regulatory authorities. Permit conditions are directly enforceable under SMCRA. Therefore, the addition of this permit condition would mean that the SMCRA regulatory authority must take enforcement action if the permittee does not obtain all necessary Clean Water Act authorizations, certifications, and permits before beginning any activity under the SMCRA permit that also requires approval, authorization, or certification under the Clean Water Act.

D. Part 774: Revision; Renewal; Transfer, Assignment, or Sale of Permit Rights; Post-Permit Issuance Requirements.

1. Section 774.10: When must the regulatory authority review a permit?

We propose to revise paragraphs (a)(2) and (a)(3) of this section to establish identical review requirements for permits for mountaintop removal mining operations under 30 CFR 785.14 and for permits that include a variance from approximate original contour restoration requirements under 30 CFR 785.16. This change is appropriate because the statutory review requirements for those types of operations in paragraphs (c)(6) and (e)(6) of section 515 of SMCRA [219] are substantively identical. Furthermore, these reviews are one-time events, not recurring requirements like midterm permit reviews.

In concert with this change, we propose to move the midterm review requirements for permits with a variance for a delay in contemporaneous reclamation requirements because of combined surface and underground mining from paragraph (a)(2) to a new paragraph (a)(4). Creation of the new single-topic paragraph also is in keeping with plain language principles.

2. Section 774.15: How may I renew a permit?

We propose to revise paragraph (b)(2) of this section by adding paragraph (b)(2)(vii), which would require that each application for permit renewal include an analysis of the monitoring results for surface water, groundwater, and the biological condition of streams and an evaluation of the accuracy and adequacy of the determination of the probable hydrologic consequences of mining (PHC determination). We also propose to add paragraph (b)(2)(viii), which would require that the renewal application include either an update of the PHC determination or documentation that the findings in the existing PHC determination are still valid. Similarly, we propose to revise paragraph (c)(1) of this section by adding paragraph (c)(1)(viii), which would authorize the regulatory authority to withhold approval of a permit renewal application if monitoring results or the updated PHC determination indicate that the finding that the regulatory authority made under 30 CFR 773.15(e) that the operation is designed to prevent material damage to the hydrologic balance outside the permit area is no longer accurate.

These revisions would assist the regulatory authority in ensuring that the operation continues to be designed and conducted to prevent material damage to the hydrologic balance outside the permit area. A narrow reading of section 510(b)(3) of SMCRA [220] and 30 CFR 773.15(e) might hold that the finding concerning material damage to the hydrologic balance outside the permit area is required only for the approval of an application for a permit or permit revision. However, we interpret section 510(b)(3) of SMCRA more broadly. Addition of a requirement for an equivalent finding as a prerequisite for the approval of permit renewal applications is consistent with the intent and purpose of section 510(b)(3) of the Act.[221]

Proposed paragraph (b)(2)(v) is substantively identical to existing paragraph (b)(2)(iii), with the exception that we propose to remove the provision requiring that the application for a permit renewal include any additional bond requested by the regulatory authority. This provision is both unnecessary and out of sequence because, at the time that the permittee submits the application for renewal, the amount of additional bond needed, if any, would not yet be known. The regulatory authority determines the amount of additional bond required after completing a technical review of the renewal application. Proposed paragraph (c)(1)(vi), like existing paragraph (c)(1)(v), provides that the Start Printed Page 44481regulatory authority may deny a permit renewal application if the applicant has not submitted the additional bond required by the regulatory authority. This paragraph provides sufficient protection against renewal of a permit that lacks the necessary bond coverage.

We propose to revise paragraph (c)(1)(ii) to specify that the regulatory authority will apply the permit eligibility standards in 30 CFR 773.12 through 773.14 in making this determination. In other words, applicants for permit renewal may avail themselves of the provisionally-issued permit procedures of 30 CFR 773.14 and the exception in 30 CFR 773.13 for unanticipated events or conditions at remining sites. Extending the exception for unanticipated events or conditions at remining sites to permit renewals is consistent with the intent of Congress in enacting section 510(e) of SMCRA.[222]

In addition, as a matter of equitable treatment, a permittee with a violation who is seeking renewal of a permit should have the same opportunity to obtain a provisionally-renewed permit as a person with a violation who is seeking to obtain a new permit has to obtain a provisionally-issued permit. Under 30 CFR 773.14, the regulatory authority may provisionally issue a permit if (1) the applicant certifies that each outstanding violation is being abated to the satisfaction of the agency with jurisdiction over the violation and the regulatory authority has no evidence to the contrary, (2) the applicant and operations owned or controlled by the applicant are in compliance with any abatement plan approved by the agency with jurisdiction over the violation, (3) the applicant is pursuing a good faith challenge to the pertinent ownership or control listing and there is no initial judicial decision in force affirming the listing, or (4) the violation is the subject of a good faith administrative or judicial appeal contesting the validity of the violation and there is no initial judicial decision in force affirming the violation. Our proposed revisions to 30 CFR 774.15(c)(1)(ii) would apply the same principles and criteria to the permit renewal process. In addition, the provisions of 30 CFR 773.14(c), which specify the actions that the regulatory authority must take to suspend or revoke the permit if the permittee ceases to be eligible for a provisionally-issued permit, would apply.

We also propose assorted other nonsubstantive changes to 30 CFR 774.15 to improve compliance with plain language principles.

E. Part 777: General Content Requirements for Permit Applications

1. Section 777.11: What are the format and content requirements for permit applications?

We propose to revise paragraph (a)(3) of this section to require that permit applications be filed in an electronic format prescribed by the regulatory authority, unless the regulatory authority grants an exception to this requirement for good cause. We propose this change to facilitate public participation and interagency coordination in the permitting process because it is much more efficient and convenient to review and exchange information online or by email than it is to review hard copies, which are time-consuming to produce and which may involve considerable travel to other offices to review documents that cannot be copied. Electronic filing also would assist in the coordination of regulatory and inspection activities required by section 713 of SMCRA.[223] Furthermore, use of an electronic format for the permitting process can improve efficiency by enabling correction letters and applicant responses to occur in real time with less expense to the regulatory authority and the applicant. Finally, electronic filing promotes attainment of the goals of the Paperwork Reduction Act.

2. Section 777.13: What requirements apply to the collection, analysis, and reporting of technical data and to the use of models?

We propose to consolidate existing paragraphs (a) and (b) into proposed paragraph (a) because both paragraphs pertain to technical data and analyses. Existing paragraph (a) would be recodified as paragraph (a)(1) and existing paragraph (b) would be recodified as paragraph (a)(2).

Proposed paragraph (a)(1) would add a requirement for submission of metadata, which consists of data describing the contents and context of data files. The availability of metadata greatly increases the usefulness of the original data by providing information about how, where, when, and by whom the data were collected and analyzed. It enables reviewers to evaluate the validity of both the data itself and comparisons with data collected at other times and other places by other persons. Existing paragraph (a) already required submission of much of this information, i.e., the names of persons or organizations that collected and analyzed the data, the dates that the data were collected and analyzed, and descriptions of the methodology used to collect and analyze the data. We also propose to revise the rule to add requirements for submission of the field sampling sheets prepared for water samples collected from wells (the sheets would identify the presence of any well screens as well as the depth at which the sample was taken). For all samples that require laboratory analysis, the proposed rule would require information pertaining to the quality assurance and quality control procedures used by the laboratory that analyzed the sample. For electronic data, the proposed rule would require identification of any transformations that the data underwent. The proposed rule would not limit metadata to the specific items listed in proposed paragraph (a)(1). Although not specified in the proposed rule, metadata should be generated in a format commonly used by the scientific community.

Proposed paragraph (b) would require that all sampling and analyses of groundwater and surface water performed to meet the permitting requirements of subchapter G of our regulations be conducted according to the methodology in 40 CFR parts 136 and 434. Proposed paragraph corresponds to the provisions concerning water-quality sampling and analysis methodologies in existing 30 CFR 780.21(a) and 784.14(a). Moving this provision to 30 CFR 777.13 would consolidate the requirements concerning sampling and analysis methodologies for groundwater and surface water in one location and expand their applicability to all pertinent data and analyses required for permit applications under subchapter G, which should promote better data collection and analysis procedures and, hence, improved permitting decisions.

We propose to eliminate the incorporation by reference of the 15th edition of the “Standard Methods for the Examination of Water and Wastewater” in existing 30 CFR 780.21(a) and 784.14(a). That document is now obsolete because the current edition is the 22nd edition, which was published in 2012. However, rather than incorporating the current edition of the “Standard Methods for the Examination of Water and Wastewater,” we propose to remove the existing incorporation by reference of the 15th edition of that document while retaining the provision in the existing rule that allows use of the sampling and analysis methodologies in 40 CFR parts 136 and 434. This proposed change would ensure that sampling and analysis methodologies under SMCRA are Start Printed Page 44482consistent with those approved by EPA for use for Clean Water Act purposes. We invite comment on whether there are any unique SMCRA-related requirements that would necessitate incorporating the current edition of the “Standard Methods for the Examination of Water and Wastewater” into our rule. In other words, would the collection and analysis of the baseline and monitoring data that we propose to require under this rule involve the use of sampling and analysis methodologies that 40 CFR parts 136 and 434 do not include?

Proposed paragraph (c) would require that all geological sampling and analyses performed to meet the permitting requirements of subchapter G of our regulations be conducted using a scientifically-valid methodology. This new provision should promote better geologic data collection and analysis procedures and, hence, improved permitting decisions. Scientifically-valid methodologies include, but are not limited to, those set forth in the Engineering Geology Field Manual, Second Edition (1998), developed by the Bureau of Reclamation within the U.S. Department of the Interior.

We propose to move the provisions concerning the use of models found in existing 30 CFR 780.21(d) and 784.14(d) to 30 CFR 777.13(d) to consolidate requirements concerning the use of models in the latter paragraph. If adopted as final, proposed paragraph (d) would apply to all permit application requirements. The existing provisions in 30 CFR 780.21(d) and 784.14(d) apply only to hydrologic data, but we find no scientific reason for limiting the use of modeling in this manner. We also propose to modify the existing provisions by adding paragraph (d)(2), which would require that all models be calibrated using actual site-specific data and that they be validated for the region and ecosystem in which they will be used. The additional requirements are intended to improve the accuracy and validity of any models used. Finally, we propose to add a new paragraph (d)(3) clarifying that the regulatory authority has the discretionary authority to prohibit the use of models and to require the submission of additional actual, site-specific data.

3. Section 777.15: What information must my application include to be administratively complete?

We propose to revise this section to use terminology consistent with the revisions to the permitting regulations published on September 28, 1983 (48 FR 44344), which removed the term “complete application” and replaced it with the terms “administratively complete application” and “complete and accurate application.”

F. Part 779: Surface Mining Permit Applications—Minimum Requirements for Information on Environmental Resources and Conditions

1. Section 779.1: What does this part do?

Existing 30 CFR 779.1 states that part 779 establishes the minimum requirements for the Secretary's approval of regulatory program provisions for the environmental resources contents of permit applications for surface mining activities. However, the content requirements and standards for approval of state regulatory programs are located in 30 CFR parts 730 through 732. Therefore, we propose to revise 30 CFR 779.1 to specify that part 779 sets forth permit application requirements relating to environmental resources and conditions.

2. Section 779.2: What is the objective of this part?

We propose to revise this section to reflect plain language principles and to clarify that the objective of part 779 is to ensure that the permit applicant provides the regulatory authority with a complete and accurate description of both the environmental resources that may be impacted or affected by proposed surface mining activities and the environmental conditions that exist within the proposed permit and adjacent areas. The existing language does not mention environmental conditions, such as the information on climate required by 30 CFR 779.18.

3. Why are we proposing to remove existing 30 CFR 779.11 and 779.12?

We propose to remove 30 CFR 779.11, which requires a description of the existing premining environmental resources within the proposed permit and adjacent areas, because the requirements for this description are set out in detail in other sections of part 779. Therefore, existing 30 CFR 779.11 is redundant and unnecessary.

We propose to remove existing 30 CFR 779.12(a) because the anticipated mining schedule that it requires is duplicative of proposed 30 CFR 779.24(a)(3). We propose to move the cultural resource requirements of existing 30 CFR 779.12(b) to a new 30 CFR 779.17 devoted to that topic.

4. Section 779.19: What information on vegetation must I include in my permit application?

We propose to revise existing 30 CFR 779.19 by adding more specificity and making submission of vegetation information mandatory rather than discretionary as under the existing rules. The changes that we propose are needed to ensure that native plant communities are restored on reclaimed areas as required by section 515(b)(19) of SMCRA.[224] Further, these changes are intended to implement, in part, section 515(b)(24) of SMCRA,[225] which requires that, “to the extent possible using the best technology currently available,” surface coal mining and reclamation operations be conducted in a manner that will “minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable.”

Restoration or establishment of native plant communities is the most effective way of restoring or enhancing wildlife habitat. The Virginia Department of Conservation and Natural Resources describes the benefits of native plants as follows:

The benefit of growing plants within the region they evolved is they are more likely to thrive under the local conditions while being less likely to invade new habitats. Native plants are well adapted to local environmental conditions, maintain or improve soil fertility, reduce erosion, and often require less fertilizer and pesticides than many alien plants. These characteristics save time and money and reduce the amount of harmful run-off threatening the aquatic resources of our streams, rivers, and estuaries. In addition, functionally healthy and established natural communities are better able to resist invasions by alien plant species. So the use of native plants can help prevent the spread of alien species already present in a region and help avert future introductions. ***

Native plants provide familiar sources of food and shelter for wildlife. As natural habitats are replaced by urban and suburban development, the use of native plants in landscaping can provide essential shelter for displaced wildlife. Land managers can use native plants to maintain and restore wildlife habitat. Native wildlife species comprise a majority of the game and non-game animals we manage habitat for, and they evolved with native plant species. Although alien species are often promoted for their value as wildlife food plants, there is no evidence that alien plant materials are superior to native plants. For instance, on land managed for upland game animals, native warm season grasses (big and little bluestem, switch grass, Indian grass, coastal panic grass, gama grass), and other native forbs (butterfly weed, ironweed, Start Printed Page 44483Joe Pye weed) offer good sources of nutrition without the ecological threats associated with nonnative forage plants. Dramatic increases in nesting success of both game birds and songbirds have been observed in fields planted with native grasses, which also offer superior winter cover. In addition, warm season grasses provide productive and palatable livestock forage. ***

On a broader ecological scale, planting native species contributes to the overall health of natural communities. Disturbances of intact ecosystems that open and fragment habitat, such as land clearing activities, increase the potential of invasion by alien species. Native plants provide important alternatives to alien species for conservation and restoration projects in these disturbed areas. They can fill many land management needs currently occupied by nonnative species, and often with lower costs and maintenance requirements. Once established in an appropriate area, most native plant species are hardy and do not require watering, fertilizers, or pesticides.[226]

A U.S. Fish and Wildlife Service publication describes the benefits of native plants as follows:

Native plants naturally occur in the region in which they evolved. While non-native plants might provide some of the above benefits, native plants have many additional advantages. Because native plants are adapted to local soils and climate conditions, they generally require less watering and fertilizing than non-natives. Natives are often more resistant to insects and disease as well, and so are less likely to need pesticides. Wildlife evolved with plants; therefore, they use native plant communities for food, cover and rearing young. Using native plants helps preserve the balance and beauty of natural ecosystems.[227]

Notwithstanding the advantages of native plant communities, many regraded and revegetated areas do not contain a diverse, effective, permanent vegetative cover of the same seasonal variety native to the area as required by section 515(b)(19) of SMCRA.[228] Instead, areas that were previously forested were backfilled, regraded, and revegetated in a manner that makes the land incapable of achieving its premining forested status. Those lands are now heavily compacted grasslands with scrub trees. Neither grassland nor the trees are representative of the native premining vegetation. A 2007 study estimates that Appalachia alone contains between 750,000 and 1.5 million acres of such reclaimed mine land.[229] Our proposed refinements to the regulations would lead to better implementation of the revegetation requirements of section 515(b)(19) of SMCRA.[230] In addition, the proposed rule would assist in the implementation of section 508(a)(2) of SMCRA,[231] which requires that the reclamation plan in each permit application identify both the premining land uses and the capability of the land prior to any mining to support a variety of uses.

Moreover, the proposed rule is consistent with Section 2.(a)(2)(iv) of Executive Order 13112, “Invasive Species,” which requires that “[e]ach Federal agency whose actions may affect the status of invasive species shall, to the extent practicable and permitted by law, . . . provide for the restoration of native species and habitat conditions in ecosystems that have been invaded.” [232]

Proposed paragraph (a) would require that the permit application identify, describe, and map existing vegetation and plant communities, as well as those plant communities that would exist under conditions of natural succession. The description and map must be adequate to evaluate whether the vegetation provides important habitat for fish and wildlife and whether the site contains any native plant communities of local or regional significance.

Proposed paragraph (b) would require that the applicant adhere to the classifications in the National Vegetation Classification Standard (NVCS) [233] in preparing the description required under proposed paragraph (a). The NVCS is the standard endorsed by the Federal Geographic Data Committee.[234] Use of this standard would promote consistent identification of plant communities and development of appropriate revegetation plans to restore those communities following mining.

Proposed paragraph (c) would allow the regulatory authority to approve the use of other generally-accepted vegetation classification systems in lieu of the NVCS. We invite comment on what other systems may exist.

Proposed paragraph (d) would require that the application include a discussion of the potential for reestablishing the plant communities described in paragraph (a) after the completion of mining. This discussion would assist the regulatory authority in evaluating the proposed revegetation plan and in determining which plant communities the permittee must reestablish.

5. Section 779.20: What information on fish and wildlife resources must I include in my permit application?

The fish and wildlife resource information requirements in existing 30 CFR 780.16(a) identify the baseline fish and wildlife resource information that each permit application must include. Therefore, we propose to move it to part 779, which contains environmental resource information requirements for permit applications. Part 779 is a better fit for a fish and wildlife resource information requirement than part 780, which contains operation and reclamation plan requirements. The fish and wildlife information requirements in existing 30 CFR 780.16(a) and proposed 30 CFR 779.20 are necessary to fully implement the fish and wildlife protection and enhancement requirements of section 515(b)(24) of SMCRA.[235]

Proposed paragraph (c)(1) is similar to the portion of existing 30 CFR 780.16(a)(2)(i) that pertains to species listed or proposed for listing as threatened or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., and to critical habitat designated under that law. We propose to add a requirement that the site-specific resource information include a description of the effects of future state or private activities that are reasonably certain to occur within the proposed permit and adjacent areas. The requested information will assist the U.S. Fish and Wildlife Service in fulfilling its responsibilities under the coordination process pertaining to threatened or endangered species.

Proposed paragraph (c)(2) is substantively identical to the portion of existing 30 CFR 780.16(a)(2)(i) that pertains to species or habitat protected by state statutes similar to the Endangered Species Act.

In proposed paragraph (c)(3), which corresponds to existing 30 CFR 780.16(a)(2)(ii), we propose to expand the list of examples of habitat of unusually high value to fish and Start Printed Page 44484wildlife to include areas that support populations of endemic species that are vulnerable because of restricted ranges, limited mobility, limited reproductive capacity, or specialized habitat requirements. We propose to delete the reference to important streams in the existing regulation because proposed paragraph (c)(5) would require site-specific information for all perennial and intermittent streams, not just important streams.

Proposed paragraph (c)(4) is substantively identical to existing 30 CFR 780.16(a)(2)(iii), except for the addition of language clarifying that this provision includes species identified as sensitive by a state or federal agency. Proposed paragraph (c)(6) would require submission of site-specific information when native plant communities of local or regional ecological significance are present.

Proposed paragraph (d) includes the U.S. Fish and Wildlife Service permit application review provisions found at 30 CFR 780.16(c) in our existing rules. We propose to revise those provisions in response to discussions with the U.S. Fish and Wildlife Service concerning compliance with the Endangered Species Act. We will further revise this provision and other proposed rules concerning protection of threatened and endangered species to include the National Marine Fisheries Service (NMFS), which is responsible for administration and enforcement of the Endangered Species Act with respect to anadromous and marine species, if we determine that this rulemaking may affect species under NMFS jurisdiction.

Proposed paragraph (d)(1)(i) would require that the regulatory authority provide the fish and wildlife resource information included in the permit application under proposed paragraph (c) to the applicable regional or field office of the U.S. Fish and Wildlife Service whenever that information includes species listed as threatened or endangered under the Endangered Species Act, critical habitat designated under that law, or species proposed for listing as threatened or endangered under that law. The proposed rule would require that the regulatory authority provide this information to the Service no later than the time that it provides written notice of receipt of an administratively complete permit application to the Service under § 773.6(a)(3)(ii). Under the existing rule, the Service must request this information from the regulatory authority rather than receiving it automatically.

Proposed paragraph (d)(1)(ii) is similar to the existing rule in that it allows the Service to request fish and wildlife resource information submitted as part of permit applications even when the information in those applications does not include species listed as threatened or endangered under the Endangered Species Act, critical habitat designated under that law, or species proposed for listing as threatened or endangered under that law. Under both the existing and proposed rules, the regulatory authority must provide that information to the Service within 10 days of receipt of the request.

Proposed paragraph (d)(2) specifies how the regulatory authority must handle comments received from the Service and how any disagreements are to be resolved. This proposed paragraph generally parallels the provisions that we and the Service agreed to as a result of a formal section 7(a)(2) Endangered Species Act consultation pertaining to the approval and conduct of surface coal mining and reclamation operations under a SMCRA regulatory program. Specifically, proposed paragraphs (d)(2)(i) through (iii) provide that if the regulatory authority does not agree with a Service recommendation that pertains to fish and wildlife or plants listed as threatened or endangered under the Endangered Species Act or to critical habitat designated under that law, the regulatory authority must explain the rationale for that decision in a comment disposition document and must provide a copy of that document to the pertinent Service field office. The proposed rule also would require that the regulatory authority provide a copy of that document to the appropriate OSMRE field office for informational purposes and to allow the OSMRE field office to monitor resolution of the disagreement. If the Service field office does not concur with the regulatory authority's decision and the regulatory authority and the Service field office are subsequently unable to conclude an agreement at that level, the proposed rule allows either the regulatory authority or the Service to elevate the issue through the chain of command of the regulatory authority, the Service, and OSMRE for resolution.

Proposed paragraph (d)(2)(iv) provides that the regulatory authority may not approve the permit application until all issues are resolved in accordance with this process and the regulatory authority receives written documentation from the Service that all issues have been resolved. Like all provisions in proposed paragraph (d)(2), this provision is intended to ensure the protection of threatened and endangered species in accordance with the Endangered Species Act.

Proposed paragraph (e) provides that the regulatory authority may require the prevention of adverse impacts to streams and watersheds in the permit and adjacent areas in order to protect exceptional environmental values. The proposed rule would require that all decisions be based upon scientific principles and analyses. In addition, it would require coordination with state and federal fish and wildlife agencies and agencies responsible for implementing the Clean Water Act before taking action under this paragraph. The protection that this proposed rule would provide through the permitting process would be in addition to any protection that might be available through the process for designating lands as unsuitable for surface coal mining operations under section 522 of SMCRA.[236] The proposed rule is consistent with section 102(c) of SMCRA,[237] which provides that one of the purposes of the Act is to “assure that surface mining operations are not conducted where reclamation as required by this Act is not feasible.” Section 515(b)(23) of SMCRA,[238] requires that surface coal mining and reclamation operations “meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this Act, taking into consideration the physical, climatological, and other characteristics of the site.” The site-specific nature of our proposed rule is consistent with this provision of the Act.

6. Section 779.21: What information on soils must I include in my permit application?

Existing 30 CFR 779.21 requires that each permit applicant submit adequate soil survey information for the proposed permit area. On August 4, 1980, we suspended the existing rules insofar as they apply to lands other than prime farmland.[239] The suspension reflects the February 26, 1980, decision of the U.S. District Court for the District of Columbia in litigation concerning the permanent regulatory program rules that we adopted in 1979. In that decision, the court held that section 507(b)(16) of SMCRA [240] is a clear expression of congressional intent to require soil surveys only for prime farmlands identified by a reconnaissance inspection. The court also ruled that the Start Printed Page 44485Secretary's reliance on section 508(a)(3) of SMCRA [241] as justification for the rule was misplaced.[242]

We propose to lift the suspension of existing 30 CFR 779.21 and replace the provisions of the existing rule with revised rule text that is consistent with the court decision. Proposed paragraph (a) would require that the application include the results of a reconnaissance inspection of the proposed permit area to determine whether or not prime farmland is present, as required by 30 CFR 785.17(b)(1). If that inspection indicates that prime farmland may be present, proposed paragraph (e) would require that the application include the soil survey information required by 30 CFR 785.17(b)(3). Proposed paragraphs (a) and (e) do not contain any new requirements; they merely include and cross-reference existing prime farmland regulations.

Proposed paragraph (b) would require a map showing all soil mapping units located within the proposed permit area, if the National Cooperative Soil Survey (NCSS) has completed and published a soil survey for the area. The application also would be required to include either a link to the appropriate soil survey information on the Natural Resources Conservation Service (NRCS) Web site, which is located at http://websoilsurvey.sc.egov.usda.gov/​App/​HomePage.htm (as of August 27, 2014), or the equivalent information in paper form.

Proposed paragraph (c) would require a description of soil depths within the proposed permit area. Proposed paragraph (d) would require detailed information on soil quality to satisfy the requirements of proposed 30 CFR 780.12(e)(2)(ii) if the permit applicant seeks approval for the use of soil substitutes or supplements under 30 CFR 780.12(e). Proposed paragraph (e) is discussed above together with proposed paragraph (a). Proposed paragraph (f) would require that the permit applicant provide any other information that the regulatory authority finds necessary to determine land use capability and to prepare the reclamation plan.

The revised version of 30 CFR 779.21 that we are proposing today would be consistent with the decision in PSMRL I, Round I. First, the proposed rule would not require that the applicant conduct an actual soil survey for lands other than prime farmland. Instead, it would require submission of only existing soil survey information, which, apart from transferring pertinent information to the permit application maps, can be provided by reference to the appropriate link to the NRCS Web site. The proposed rule would not require that the applicant conduct an actual soil survey if the information is not available from the NRCS. (The NRCS has completed soil surveys for more than 99 percent of the land area within the conterminous states.)

Second, the statutory basis for proposed 30 CFR 779.21 is section 508(a)(2) of SMCRA,[243] not section 508(a)(3).[244] The court held that section 508(a)(3) did not constitute authority for the prior rule. However, section 508(a)(2) provides that—

Each reclamation plan submitted as part of a permit application pursuant to any approved State program or a Federal program under the provisions of this Act shall include, in the degree of detail necessary to demonstrate that reclamation required by the State or Federal program can be accomplished, a statement of:

* * * * *

(B) the capability of the land prior to any mining to support a variety of uses giving consideration to soil and foundation characteristics, topography, and vegetative cover, and, if applicable, a soil survey prepared pursuant to section 507(b)(16).

All the information that we propose to require in 30 CFR 779.21 consists of soil and foundation characteristics. Section 508(a)(2) of SMCRA [245] requires the applicant to include that information in each permit application, not just in those applications that contain prime farmland. Identification of soil mapping units and submission of available soil survey information about those units, as proposed paragraph (b) would require, is critical to determining the premining capability of the land, as required by section 508(a)(2)(B) of SMCRA,[246] and to establishing the soil salvage and replacement requirements needed to ensure that the revegetation requirements of the Act and regulations can be met.

Likewise, the premining soil depth, soil quality, and other information that would be required under proposed paragraphs (c), (d), and (f) also is needed for the applicant and the regulatory authority to effectively determine the premining capability of the land and to establish the soil salvage, soil substitute, and soil replacement requirements needed to ensure that the revegetation requirements of the Act and regulations can be met. Furthermore, soil depth and quality are critical to determining the productivity of the site and hence to establishing pertinent revegetation success standards for the site for certain postmining land uses.

7. Section 779.22: What information on land use and productivity must I include in my permit application?

The counterpart in our existing rules to this section is 30 CFR 780.23(a). We propose to delete the second sentence of existing paragraph (a)(1), which provides that the application must include a description of the historical use of the land if the premining use changed within the 5 years preceding the anticipated starting date of the proposed operation. SMCRA does not include a similar provision and this timeframe has sometimes proven difficult to determine with precision. Furthermore, this information has little or no value in the existing permitting process because it is not a criterion or determinant of any permitting decisions under the existing rules.

The proposed rule would continue to require that the application include a narrative analysis of the capability of the land before any mining to support a variety of uses, as required by section 508(a)(2)(B) of SMCRA.[247] We propose to require a description of all historical uses of the land without a time limitation and without limitation to the single use preceding the permit application, as a component of this narrative because historical uses provide documentation, in part, of premining land use capability. Our proposed revisions are consistent with the legislative history of this provision of SMCRA, which states that:

The description is to serve as a benchmark against which the adequacy of reclamation and the degradation resulting from the proposed mining may be measured. It is important that the potential utility which the land had for a variety of uses be the benchmark rather than any single, possibly low value, use which by circumstances may have existed at the time mining began.[248]

Thus, it is clear that a single-use criterion is not in accordance with sections 508(a) and 515(b)(2) of SMCRA [249] or the legislative history of section 508(a). The postmining land use must be compared with the variety of uses that the land was capable of supporting before any mining, not just a single premining use.

We also propose to add paragraph (b)(3), which would require that the permit application include a narrative Start Printed Page 44486analysis of the premining productivity of the proposed permit area for fish and wildlife. Section 508(a)(2)(C) of SMCRA [250] lists productivity in terms of the average yield of food, fiber, forage, or wood products, but it is not an exclusive list of productivity measures that can be used to assess premining productivity. The fish and wildlife information required by proposed paragraph (b)(3) would assist the regulatory authority in evaluating the environmental impacts of the proposed operation and in determining what fish and wildlife protection and enhancement measures may be appropriate. Limiting productivity measures to quantifiable commodity indicators such as food, fiber, and wood products would incorrectly ignore the underlying purposes of SMCRA, one of which is to establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.[251]

Following the same logic, we propose to add paragraph (c), which would allow the regulatory authority to require submission of any additional information that the regulatory authority deems necessary to determine the condition, capability, and productivity of the land within the proposed permit area. This additional information may include data concerning the site's carbon absorption and storage capability.

8. Section 779.24: What maps, plans, and cross-sections must I submit with my permit application?

We propose to consolidate existing 30 CFR 779.24 and 779.25 into 30 CFR 779.24 and add a new paragraph (c) to clarify that the regulatory authority may require that the applicant submit all materials in a digital format that includes all necessary metadata. We invite comment on whether the digital format option should instead be mandatory to facilitate review by both the public and the regulatory authority.

Other substantive proposed changes are discussed below.

Proposed paragraph (a)(3) would require a description of the size, sequence, and timing of the mining of subareas for which the applicant anticipates seeking additional permits or expansion of an existing permit in the future. The corresponding existing rule at 30 CFR 779.24(c) applies this requirement to areas for which the applicant anticipates seeking additional permits. However, in practice, regulatory authorities do not always require a new permit application for additional acreage to be mined. Some state regulatory programs allow expansion by means of permit amendments or revisions. We have approved state program amendments of this nature, provided that the program amendment specifies that the permit amendment or revision application is subject to the same information requirements as a new permit and that the application must be processed and approved in the same manner as a new permit. We have found that amendments containing those provisions are no less stringent than section 510(a)(3) of SMCRA,[252] which provides that, except for incidental boundary revisions, any extension of the area covered by a permit must be made by application for a new permit. The proposed language would reflect this reality and ensure that the description would include all subareas for which the applicant anticipates seeking approval to mine in the future, not just those subareas for which the applicant anticipates seeking new permits.

Proposed paragraphs (a)(7), (a)(8), (a)(9), (a)(18), (a)(20), and (a)(27) would allow certain information that is not particularly amenable to display on a map to instead be submitted in a table cross-referenced to a map if approved by the regulatory authority. This information would include depth of water, gas and oil wells; ownership of wells and groundwater resources; ownership and descriptions of surface-water features; and elevations and geographic coordinates of test borings, core samplings, and monitoring stations.

In proposed paragraph (a)(11), we propose to add a provision requiring mapping of all public water supplies and wellhead protection zones [253] located within one-half mile of the proposed permit area. This information would be important in preparing the cumulative hydrologic impact assessment required by section 510(b)(3) of SMCRA [254] and may be of value in preparing the PHC determination and hydrologic reclamation plan for the proposed permit.

Proposed paragraph (a)(13) would add a requirement for a map showing the location of any discharge, including, but not limited to, a mine-water treatment or pumping facility, into or from an active, inactive, or abandoned underground mine that is hydrologically connected to the proposed permit area or that is located within one-half mile, measured horizontally, of the proposed permit area. The applicant will need this information to prepare the determination of the probable hydrologic consequences of mining required by section 507(b)(11) of SMCRA.[255] In addition, the regulatory authority will need this information to prepare the cumulative hydrologic impact assessment required by the same provision of the Act and by section 510(b)(3) of SMCRA.[256]

We propose to add a requirement in paragraphs (a)(18) and (20) that the application include the geographic coordinates of test borings, core samplings, and monitoring stations. Our inspectors have found that this information often is time-consuming or difficult to locate in the permit file or to determine from maps included in that file, so a list of features with their geographic coordinates should improve the efficiency with which regulatory authority and OSMRE personnel perform their duties by greatly improving the ability of regulatory authority and OSMRE personnel to field-check those locations using GPS devices. The requirement for geographic coordinates also is intended to ensure that the locations of these features are determined by an actual survey rather than approximated on a topographic map.

Proposed paragraph (a)(19) would expand upon the requirement in existing 30 CFR 779.25(a)(6) for the location and extent of subsurface water, if encountered, by adding provisions concerning aquifers that currently are found only in the corresponding requirements for underground mines at existing 30 CFR 783.25(a)(6). Specifically, we propose to require that the application include the areal and vertical distribution of aquifers and a portrayal of seasonal variations in hydraulic head in different aquifers. This information is equally important for proposed surface mining operations because it would be used to establish baseline groundwater conditions and predict the impacts of the proposed mining operation on those aquifers, regardless of whether the proposed operation is a surface mine or an underground mine. Furthermore, section 507(b)(14) of SMCRA,[257] which is the primary statutory counterpart to proposed 30 CFR 779.24, expressly requires that the application include the location of aquifers. In addition, Start Printed Page 44487proposed 30 CFR 779.24(a)(19) would include a requirement for the estimated elevation of the water table, which section 507(b)(14) of SMCRA also requires.

In proposed paragraph (a)(21), we propose to add a requirement that the maps, cross-sections, and plans include the commonly used names of the coal seams to be mined, overburden strata, and the stratum immediately below the lowest coal seam to be mined. This information would assist reviewers in predicting the impacts of the proposed operation by facilitating consultation with published reference materials on the coal seams and geological strata in question.

In proposed paragraph (a)(27), we propose to add a requirement that the application identify all directional or horizontal drilling for hydrocarbon extraction operations, including those using hydraulic fracturing methods, within or underlying the proposed permit and adjacent areas. Both the applicant and the regulatory authority need this information to determine the probable hydrologic consequences of the proposed operation and to ensure that the operation's design takes these operations and wells into consideration.

G. Part 780: Surface Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plans

1. Section 780.1: What does this part do?

Existing 30 CFR 780.1 states that part 780 provides the minimum requirements for the Secretary's approval of regulatory program provisions for the mining operations and reclamation plan portions of permit applications for surface mining activities, except to the extent that part 785 establishes different requirements. However, the content requirements and standards for approval of state regulatory programs are located in 30 CFR parts 730 through 732. Therefore, we propose to revise 30 CFR 780.1 to specify that part 780 sets forth permit application requirements for reclamation and operation plans for proposed operations.

2. Section 780.2: What is the objective of this part?

We propose to revise this section to specifically mention reclamation of the disturbed area to reflect the fact that part 780 includes numerous reclamation requirements. The existing rule only mentions surface mining activities. We recognize that this change is not essential because the definition of “surface mining activities” in 30 CFR 700.5 includes reclamation, but adding a mention of reclamation in 30 CFR 780.2 would make this rule clearer to the reader.

3. Section 780.12: What information must the reclamation plan include?

Paragraph (a): General Requirements

Proposed paragraph (a) is substantively identical to existing 30 CFR 780.18(a) with one exception. The existing rule requires that each permit application contain a reclamation plan showing how the applicant will comply with section 515 of SMCRA,[258] the federal performance standards in subchapter K of 30 CFR Chapter VII, and the environmental protection performance standards of the regulatory program. We propose to revise this provision to be more consistent with section 508(a) of SMCRA,[259] which requires that each reclamation plan include the information “necessary to demonstrate that reclamation required by the State or Federal program can be accomplished.” The existing rule is too limiting in that it refers only to performance standards, not to all reclamation requirements. In addition, the references to section 515 of SMCRA and subchapter K of 30 CFR Chapter VII in the existing rule are inconsistent with the principle of state primacy under section 503(a) of SMCRA,[260] which specifies that a state with an approved regulatory program assumes exclusive jurisdiction over surface coal mining and reclamation operations on non-Federal, non-Indian lands within its borders, except as provided in sections 521 and 523 [261] and title IV [262] of the Act. Therefore, we propose to revise paragraph (a) by deleting the references to performance standards and to section 515 of SMCRA and subchapter K of 30 CFR Chapter VII. Instead, we propose to require that each permit application include a reclamation plan showing how the applicant will comply with the reclamation requirements of the applicable regulatory program.

Paragraph (b): Reclamation Timetable

Section 508(a)(7) of SMCRA [263] requires the reclamation plan for each permit application include “a detailed estimated timetable for the accomplishment of each major step in the reclamation plan.” Existing 30 CFR 780.18(b)(1) implements this provision in part. We propose to revise the existing rule by listing the activities which, at a minimum, must be considered major steps in the reclamation process. In typical chronological order, those steps include, but are not limited to, backfilling, grading, restoration of the form of all reconstructed perennial and intermittent stream segments, soil redistribution, planting, demonstration of revegetation success, restoration of the ecological function of all reconstructed perennial and intermittent stream segments, and application for each phase of bond release. Establishment of a timetable that includes those steps should promote consistency in the application of this provision and result in a more comprehensive timetable, which would implement section 508(a)(7) of SMCRA more completely.

The regulatory authority must evaluate the proposed timetable to determine whether it meets the contemporaneous reclamation requirements of section 515(b)(16) of SMCRA.[264] Once approved as part of the permit, this timetable serves as a standard for evaluating compliance with the contemporaneous reclamation requirements of section 515(b)(16) of SMCRA.[265]

Paragraph (c): Reclamation Cost Estimate

We propose to revise this paragraph, which appears at 30 CFR 780.18(b)(2) in our existing rules, by clarifying that the cost estimates must include both direct and indirect costs and by requiring that the permit applicant use current, standardized construction cost estimation methods and equipment cost guides in developing estimates of the cost of reclamation. These changes should improve the accuracy of cost estimates and increase the usefulness of these estimates to the regulatory authority in determining the amount of performance bond required under section 509 of SMCRA [266] and 30 CFR part 800.

Paragraph (d): Backfilling and Grading Plan

Proposed paragraph (d) corresponds to existing 30 CFR 780.18(b)(3). We propose to add more specificity to the existing rule, which requires “[a] plan for backfilling, soil stabilization, compacting, and grading, with contour maps or cross-sections that show the anticipated final surface configuration of the proposed permit area, in Start Printed Page 44488accordance with 30 CFR 816.102 through 816.107.”

Proposed paragraph (d)(1) would require that the reclamation plan contain a plan for backfilling the mined-out area, compacting the backfill, and grading the disturbed area in accordance with 30 CFR 817.102 through 817.107 of this chapter, using the best technology currently available. It also would specify that the plan must limit compaction to the minimum necessary to achieve stability requirements unless additional compaction is necessary to reduce infiltration to minimize leaching and discharges of parameters of concern. The added language is intended to achieve a balance between minimizing compaction, which research has shown stunts the growth of most crops and woody plants,[267] and the need to minimize the formation of discharges that contain sulfate and other ions that could have adverse impacts on receiving streams and their aquatic life.

Proposed paragraph (d)(1) also would require that the plan be accompanied by models, contour maps, or cross-sections that show in detail the anticipated final surface elevations and configuration of the proposed permit area, including drainage patterns. The regulatory authority would use this information to determine whether the proposed plan satisfies the backfilling, grading, and surface configuration requirements of 30 CFR 816.102 through 816.107.

Proposed paragraph (d)(2) would require that the plan describe in detail how the permittee will conduct backfilling and reclamation activities and handle acid-forming and toxic-forming materials, if present, to prevent the formation of acid or toxic mine drainage from acid-forming and toxic-forming materials within the overburden. It also would require an explanation of how the method selected will protect groundwater and surface water in accordance with 30 CFR 816.38, which contains the performance standards for handling acid-forming and toxic-forming materials. Proposed paragraph (d)(2) would implement in part the requirements in section 515(b)(3) of SMCRA [268] that surface coal mining and reclamation operations compact spoil where advisable to prevent leaching of toxic materials, cover all acid-forming and other toxic materials, and shape and grade overburden and spoil to prevent water pollution. It also would implement, in part, section 515(b)(14) of SMCRA,[269] which requires that all acid-forming materials and toxic materials be “treated or buried and compacted or otherwise disposed of in a manner designed to prevent contamination of ground or surface waters.”

Paragraph (e): Soil Handling Plan

We propose to extensively revise our existing rules concerning soils to promote salvage, preservation, and redistribution of the best available soil materials for the purpose of creating a growing medium (soil) suitable for the intended vegetation, including creation of a root zone of sufficient depth for that vegetation. Proposed paragraph (e) would include those provisions of our existing rules at 30 CFR 816.22(b) and (e) that are permitting requirements rather than performance standards in an effort to consolidate permit application information and review requirements in subchapter G rather than having them split between subchapters G (permit requirements) and K (performance standards).

We propose to extensively revise our existing rules to better implement section 515(b)(5) of SMCRA,[270] which states that surface coal mining operations must—

remove the topsoil from the land in a separate layer, replace it on the backfill area, or if not utilized immediately, segregate it in a separate pile from other spoil and when the topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, maintain a successful cover by quick growing plant or other means thereafter so that the topsoil is preserved from wind and water erosion, remains free of any contamination by other acid or toxic material, and is in a usable condition for sustaining vegetation when restored during reclamation, except if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate, and preserve in a like manner such other strata which is best able to support vegetation.

Proposed paragraph (e)(1)(i) is similar to the first sentence of existing 30 CFR 780.18(b)(4). It would require that the reclamation plan include a plan and schedule for removal, storage, and redistribution of topsoil, subsoil, and other material to be used as a final growing medium in accordance with 30 CFR 816.22.

Consistent with proposed 30 CFR 816.22(f), we also propose to add a requirement that the application include a plan for salvaging, protecting, and redistributing or otherwise using all organic matter (duff, other organic litter, and vegetative materials such as tree tops, small logs, and root balls) found on the site. Acceptable uses for organic matter are as a soil supplement, to promote revegetation, to assist in stream restoration, or to provide wildlife habitat. Preservation and distribution of organic matter on the regraded site would assist in meeting the requirement of section 515(b)(19) of SMCRA [271] to establish on the regraded area a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area. Our proposed rule also is consistent with the findings of an extensive literature review of reforestation on minesites in Appalachia. That review recommended that “all surface organic debris (including stumps, stems, roots, and litter), all soil layers, and the soft saprolite and weathered rock materials under the soil be removed, mixed in the process of excavating, hauling and dumping, and placed on the surface of reclaimed mine sites to a depth of 1 to 2 meters.” [272]

Proposed paragraph (e)(1)(ii) provides that the plan must require the removal, segregation, stockpiling, and redistribution of the B and C horizons and other underlying strata or portions thereof to the extent that those horizons and strata are needed to provide the root zone required to restore premining land use capability or to comply with the revegetation requirements of 30 CFR 816.111 and 816.116. The proposed rule differs from the existing rule at 30 CFR 816.22(e) in that the existing rule provides that salvage and redistribution of these soil materials is discretionary on the part of the regulatory authority.

However, the subsoil (the B and C horizons) also is important for plant growth. Plant roots extend through the topsoil into the subsoil (root zone), which provides a substantial proportion of the plant's nutrient requirements. For example, field studies have shown that between 45 percent and 65 percent of nitrogen available to plants from the soil lies below a depth of 6 inches. During dry summer weather, many plants, especially deep-rooted plants like alfalfa and most trees, depend for their survival on moisture available in the subsoil. Alfalfa extracts 55 percent of its moisture requirements from soil Start Printed Page 44489materials deeper than one foot and is capable of extracting water from subsoil up to 6 feet in depth. Even medium-rooted crops like wheat and corn extract up to 40 percent of their moisture requirements from soil materials deeper than one foot. Finally, many plants depend on root penetration well into the subsoil for physical support, especially where topsoil is thin. If plant roots are unable to penetrate deeply into a reclaimed subsoil, soil capability for plant growth will be degraded.[273]

Therefore, a failure to require salvage and redistribution of the B and C horizons under these conditions would result in a failure to restore the site to a condition in which it is capable of supporting those land uses that it was capable of supporting before any mining, as required by section 515(b)(2) of SMCRA.[274]

Furthermore, proposed paragraph (e)(1)(ii) is consistent with, and would improve implementation of, section 515(b)(5) of SMCRA,[275] which provides that if strata other than the topsoil “can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate, and preserve in a like manner such other strata which is best able to support vegetation.” The U.S. District Court for the District of Columbia upheld this interpretation of section 515(b)(5) of SMCRA in 1980 in PSMRL I, Round I concerning the 1979 version of our regulations at 30 CFR 816.22(d),[276] which required segregation of the B horizon and portions of the C horizon if the regulatory authority determined that those materials were necessary or desirable to ensure soil productivity:

Section 515(b)(5) authorizes segregation [of materials other than topsoil] if the topsoil cannot sustain vegetation or if other strata enhance post-mining vegetation. This is essentially what the regulations command. They focus on “soil productivity,” and grant the regulatory authority power to require segregation if necessary to improve such productivity.[277]

Proposed paragraph (e)(1)(iii) would require that the plan explain how soil materials would be handled and stored to avoid contamination by acid-forming or toxic-forming materials and to minimize the loss of desirable soil characteristics during handling and storage. These provisions mirror similar requirements in section 515(b)(5) of SMCRA.[278]

Proposed paragraph (e)(2) contains expanded criteria and requirements for the approval and use of soil substitutes or supplements. It differs from existing 30 CFR 816.22(b) most significantly in that the existing rule allows use of topsoil substitutes or supplements if the resulting soil medium is equal to or more suitable than the existing topsoil in terms of its capability to sustain vegetation. We propose to eliminate the provision allowing use of topsoil substitutes or supplements when the resulting growing medium (soil) is only equal to the existing topsoil in terms of its capability to sustain vegetation. Our proposed revision would improve the implementation of section 515(b)(5) of SMCRA,[279] which allows use of other overburden strata in place of the topsoil only if those strata “can be shown to be more suitable for vegetation requirements.” Nothing in this provision of SMCRA authorizes the use of other strata in place of topsoil if the resulting medium is only equal in its ability to meet vegetation requirements.

While section 515(b)(5) of SMCRA [280] is silent on the use of subsoil substitutes, we propose to apply the same standards to the use of subsoil substitutes and supplements as we do to topsoil substitutes and supplements. The subsoil is an important part of the growing medium in that, among other things, it provides the root zone required by many plants for physical support, moisture, and nutrient uptake.[281] Therefore, application of the same standards for subsoil substitutes as for topsoil substitutes is appropriate to ensure that the reclaimed site is restored to a condition in which it is capable of supporting the uses that it was capable of supporting before any mining, as required by section 515(b)(2) of SMCRA.[282]

Proposed paragraph (e)(2)(i) explains that proposed paragraph (e)(2) would apply to all permit applicants proposing to use appropriate overburden materials as a supplement to or substitute for the existing topsoil or subsoil on the proposed permit area.

Proposed paragraph (e)(2)(ii)(A) would require that the permit applicant demonstrate, and the regulatory authority find in writing, that either the quality of the existing topsoil and subsoil is inferior to that of the alternative overburden materials proposed for use or that the quantity of existing topsoil and subsoil is not adequate to provide the optimal rooting depth or to meet other growth requirements of the native species to be planted under the revegetation plan. In the latter case, the proposed rule also would require that the soil handling plan provide for the salvage and redistribution of all existing soil materials as a component of the approved growing medium to obtain the benefits of the native existing soil materials as a source of seeds, other plant propagules, mycorrhizae, other soil flora and fauna, and other biological components that promote revegetation. Studies in Appalachia have found that native soils contain nitrogen and phosphorus in organic forms that are readily available to plants; they also contain organic carbon that is essential to soil microorganisms and nutrient cycling.[283] The author of an extensive literature review of reforestation on minesites in Appalachia concluded that native soils “will be the most favorable material available on most mine sites for use in constructing mine soils for reforestation” and that, when use of rock spoil is necessary, the native soils, as well as stumps and woody debris, should be mixed with those spoils to enhance their chemical, biological, and physical properties.[284]

Proposed paragraph (e)(2)(ii)(B) would require that the permit applicant demonstrate, and the regulatory authority find in writing, that use of the alternative overburden materials, either in combination with or in place of the topsoil or subsoil, would result in a growing medium (soil) that will provide superior rooting depth in comparison to the existing topsoil and subsoil and that will be more suitable to sustain the vegetation required by the approved postmining land use and the revegetation plan than the existing topsoil and subsoil.

Proposed paragraph (e)(2)(ii)(C) would require that overburden materials selected for use as a soil substitute or supplement be the best materials available in the proposed permit area to support the native vegetation to be established on the reclaimed area or the crops to be planted on that area.

The demonstrations and findings required by proposed paragraphs (e)(2)(ii)(A) through (C) would, in part, improve implementation of section Start Printed Page 44490515(b)(5) of SMCRA,[285] which provides that “if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate, and preserve in a like manner such other strata which is best able to support vegetation.” In addition, these demonstrations and findings are intended to ensure the establishment of a growing medium on the reclaimed area that is capable of supporting the uses that the land was capable of supporting before any mining, as required by section 515(b)(2) of SMCRA.[286] Finally, the emphasis on the use of native species to determine optimal rooting depths and other growth requirements when evaluating the suitability of potential soil substitutes is consistent with section 515(b)(19) of SMCRA,[287] which requires establishment of a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession. . . .”

Proposed paragraphs (e)(2)(iii) and (iv) would expand upon the second and third sentences of existing 30 CFR 780.18(b)(4), which establish minimum content requirements for the demonstration of the suitability of potential soil substitutes or supplements and which allow the regulatory authority to require other analyses, field trials, or greenhouse tests if necessary. Proposed paragraph (e)(2)(iii) would require that the regulatory authority specify suitability criteria for potential soil substitutes and supplements; chemical and physical analyses, field trials, or greenhouse tests that the applicant must conduct on potential soil substitutes and supplements; and sampling objectives, sampling techniques, and the techniques to be used to analyze the samples collected. Proposed paragraph (e)(2)(iv)(A) would require that demonstrations of the suitability of potential soil substitutes and supplements include the physical and chemical soil characteristics and root zones needed to support the type of vegetation to be established on the reclaimed area. Proposed paragraph (e)(2)(iv)(B) would require that those demonstrations include a comparison and analysis of the thickness, total depth, texture, percent coarse fragments, pH, thermal toxicity, and areal extent of the different kinds of soil horizons and overburden materials available within the proposed permit area, based upon a statistically valid sampling procedure.

Proposed paragraphs (e)(2)(iii) and (iv) are intended to ensure that the determination of the suitability of potential soil substitutes and supplements is conducted in a scientifically-sound manner. Use of scientifically-invalid sampling and analytical techniques or a lack of comprehensive criteria for the evaluation and approval of potential soil substitutes and supplements could result in the establishment of an inferior growing medium on the reclaimed area that is incapable of supporting the uses that it was capable of supporting before any mining. Such a result would be inconsistent with section 515(b)(2) of SMCRA.[288] It also would be inconsistent with the requirement in section 515(b)(5) of SMCRA [289] that any topsoil substitutes be shown to be more suitable for vegetation requirements than the existing soil and that any substitute materials be the best able to support vegetation.

Proposed paragraph (e)(2)(v) would require that the soil handling plan include a plan for testing and evaluating overburden materials during both removal and redistribution to ensure that the permittee removes and redistributes only those overburden materials approved for use as soil substitutes or supplements. This requirement would provide a safeguard against the salvage and redistribution of overburden materials that have not been approved for use as soil substitutes or supplements. Use of unapproved materials could result in the establishment of an inferior growing medium on the reclaimed area that is incapable of supporting the uses that it was capable of supporting before any mining. Such a result would be inconsistent with section 515(b)(2) of SMCRA.[290] It also would be inconsistent with the requirement in section 515(b)(5) of SMCRA [291] that any topsoil substitutes be shown to be more suitable for vegetation requirements than the existing soil and that any substitute materials be the best able to support vegetation.

Paragraph (f): Surface Stabilization Plan

We propose to add this paragraph to replace existing 30 CFR 780.15, which requires that the reclamation plan include an air pollution control plan for fugitive dust. Under existing 30 CFR 780.15, at a minimum, the permit application must include a “plan for fugitive dust control practices, as required under 30 CFR 816.95.” We propose to remove 30 CFR 780.15 because the references to fugitive dust and cross-references to 30 CFR 816.95 in the existing rule refer to provisions that we removed in 1983 in response to a court decision striking down our authority to regulate air pollution under SMCRA, except for air pollution attendant to erosion. The court held that “the legislative history indicates that Congress only intended to regulate air pollution related to erosion.” [292] The 1983 rulemaking removed all requirements in 30 CFR 816.95 for fugitive dust control practices, including requirements for monitoring of fugitive dust to determine compliance with federal and state air quality standards. That rulemaking also changed the section heading of 30 CFR 816.95 from “Air resources protection” to “Stabilization of surface areas” and replaced the air quality performance standards formerly located in that section with soil stabilization requirements that contain no mention of fugitive dust or air quality monitoring. See 48 FR 1160-1163 (Jan. 10, 1983).

However, the 1983 rulemaking did not remove the parallel permitting requirements in 30 CFR 780.15 and 784.26. Instead, we stated in the preamble to that rulemaking that we agreed with a commenter that we also needed to amend the permit application rules at 30 CFR 780.15 and 784.26 for consistency with the revisions to 30 CFR 816.95 and 817.95, and that we would do so in a subsequent independent rulemaking.[293] Adoption of this proposed rule would fulfill that commitment in part by adding permit application information requirements consistent with the 1983 revisions to 30 CFR 816.95. In other words, we propose to replace the obsolete air pollution control plan requirements in existing 30 CFR 780.15 with the surface stabilization plan requirements in proposed 30 CFR 780.12(f) to correspond with the requirements in existing 30 CFR 816.95, as revised in 1983.

Proposed paragraph (f) would add a permitting counterpart to the current performance standard at 30 CFR 816.95(a), which provides that all exposed surface areas must be protected and stabilized to effectively control erosion and air pollution attendant to Start Printed Page 44491erosion. We also propose to add cross-references to the current dust control performance standards for roads in 30 CFR 816.150 and 816.151.

Paragraph (g): Revegetation Plan

We propose to extensively revise this paragraph, which appears at 30 CFR 780.18(b)(5) in our existing rules, by adding specificity for elements of the revegetation plan, by incorporating those provisions of 30 CFR 816.111 that are more appropriately considered permitting requirements rather than performance standards, and by ensuring that there is a detailed counterpart in the revegetation plan to the revegetation performance standards in 30 CFR 816.111 through 816.116, when appropriate. The various components of proposed paragraph (g) are intended to ensure compliance with or improve implementation of section 515(b)(19) of SMCRA,[294] which requires that surface coal mining and reclamation operations establish “a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area; except, that introduced species may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan.”

Proposed paragraph (g)(1)(ii) would add a site preparation element to the revegetation plan to reflect extensive research documenting the adverse impacts of excessive compaction on vegetation, especially woody plants. The new element would require a description of the measures that the permittee will take to avoid compaction or, when avoidance is not possible, to minimize and alleviate compaction of the root zone during backfilling, grading, soil redistribution, and planting.

In addition, we propose to require in paragraph (g)(1)(viii) that the revegetation plan identify any normal husbandry practices that the permittee intends to use and explain whether the permittee intends to conduct irrigation or apply fertilizer after the first year and, if so, for how long and to what extent. This information will assist the regulatory authority in determining whether the proposed practices are normal husbandry practices or whether they are augmentative in nature, which would necessitate restarting the revegetation responsibility period under proposed 30 CFR 816.115, which corresponds to existing 30 CFR 816.116(c). These provisions would serve as the permit application information counterpart to the performance standards in proposed 30 CFR 816.115(a)(1) and (b), which correspond to existing 30 CFR 816.116(c)(1) and (c)(4).

Proposed paragraph (g)(1)(xi) would add a requirement that the revegetation plan include the measures that the permittee will take to avoid the establishment of invasive species on reclaimed areas or to control those species if they do become established. Invasive species are highly detrimental to native ecosystems, agriculture, and forestry. They have posed a problem on some minesites either because the permit improperly allowed the use of invasive non-native species or because of the reclamation practices used. We propose to add this provision to improve the implementation of section 515(b)(19) of SMCRA,[295] which requires the establishment of a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area, and section 515(b)(2) of SMCRA,[296] which requires restoration of mined land to a condition capable of supporting the uses it was capable of supporting before any mining. Allowing the establishment of invasive species also would be inconsistent with the fish and wildlife protection provisions of section 515(b)(24) of SMCRA.[297] Moreover, proposed paragraph (g)(1)(xi) is consistent with Section 2.(a)(2)(i) and (iv) of Executive Order 13112, “Invasive Species,” which requires that “[e]ach Federal agency whose actions may affect the status of invasive species shall, to the extent practicable and permitted by law, . . . (i) prevent the introduction of invasive species; . . . [and] (iv) provide for the restoration of native species and habitat conditions in ecosystems that have been invaded.” [298]

Proposed paragraph (g)(2) would require that the plan be designed to create a diverse, effective, permanent vegetative cover that is consistent with the vegetative communities described in the permit application in accordance with 30 CFR 779.19. It also would require that the plan meet the other requirements of 30 CFR 816.116(a) and (b).

Proposed paragraph (g)(3) is substantively identical to the species-selection criteria of existing 30 CFR 816.111(a)(2), (a)(4), and (b), with two exceptions. Proposed paragraph (g)(3)(i) would prohibit the use of introduced species unless they are non-invasive. This proposed requirement is consistent with section 515(b)(19) of SMCRA,[299] which allows the use of introduced species only if they are desirable. Invasive introduced species are not desirable because they out-compete native vegetation and can have adverse impacts on fish and wildlife, which would be inconsistent with the fish and wildlife protection requirements of section 515(b)(24) of SMCRA.[300] Moreover, proposed paragraph (g)(3)(i) is consistent with Section 2.(a)(2)(i) of Executive Order 13112, “Invasive Species,” which requires that “[e]ach Federal agency whose actions may affect the status of invasive species shall, to the extent practicable and permitted by law, . . . prevent the introduction of invasive species”.[301]

Proposed paragraph (g)(3)(ii) would provide that the species selected need to be capable of stabilizing the soil surface from erosion only to the extent that control of erosion with herbaceous species is consistent with establishment of a permanent vegetative cover that resembles native plant communities in the area. We propose to add this qualifier because some level of erosion is natural and because excessive herbaceous cover can inhibit establishment of woody plants, as discussed at length elsewhere in this preamble.

Proposed paragraphs (g)(4) and (g)(5) are substantively identical to existing 30 CFR 816.116(c) and (d). Both paragraphs would provide limited exceptions to the species-selection requirements of proposed paragraphs (g)(3)(i), (iv), and (v), which correspond to the species-selection provisions of section 515(b)(19) of SMCRA.[302] Proposed paragraph (g)(3) would provide an exception for temporary cover, while proposed paragraph (g)(4) would provide an exception for long-term, intensive agricultural postmining land uses. These exceptions would be consistent with section 515(b)(19) of SMCRA,[303] which allows the use of introduced species “in the revegetation process where desirable and necessary to achieve the approved postmining land use plan.” Proposed paragraph (g)(4) also would implement section 515(b)(20) of SMCRA [304] to the extent that it provides exceptions to the requirements of section 515(b)(19) for Start Printed Page 44492long-term, intensive agricultural postmining land uses.

Proposed paragraph (g)(6) would require that a professional forester or ecologist develop and certify all revegetation plans that include the establishment of trees and shrubs. It also would require that those plans include site-specific planting prescriptions for canopy trees, understory trees and shrubs, and herbaceous ground cover compatible with establishment of those trees and shrubs. In addition, this proposed paragraph would require that the plan rely exclusively upon the use of native species unless those species are inconsistent with the approved postmining land use and that land use is implemented before the entire bond amount for the area in question has been fully released.

Paragraph (h): Stream Restoration Plan

We propose to add this paragraph to require that the reclamation plan expressly address in detail how the permittee will restore the form and ecological function of each segment of a perennial or intermittent stream that is proposed to be mined through under 30 CFR 780.28. The plan must conform to the requirements of 30 CFR 780.28 and 816.57. The U.S. Army Corps of Engineers may require additional onsite or offsite mitigation under section 404 of the Clean Water Act.[305]

Paragraph (i): Coal Resource Conservation Plan

Proposed paragraph (i) corresponds to existing 30 CFR 780.18(b)(6). We propose to add language consistent with the existing coal recovery performance standard at 30 CFR 816.59. Proposed paragraph (i) would implement section 508(a)(6) of SMCRA,[306] which provides that the reclamation plan must include a statement of “the consideration which has been given to maximize the utilization and conservation of the solid fuel resource being recovered so that reaffecting the land in the future can be minimized.”

Paragraph (j): Plan for Disposal of Noncoal Waste Materials

Proposed paragraph (j) corresponds to existing 30 CFR 780.18(b)(7). We propose to clarify that this requirement applies to all noncoal waste materials resulting from mining and reclamation activities, but not to coal combustion residuals such as fly ash and bottom ash. The existing rule applies to “debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard.” We propose to delete the reference to acid-forming and toxic-forming materials because proposed 30 CFR 780.22 contains the permit application information requirements for those materials. As revised, proposed paragraph (j) would apply to all noncoal waste materials covered by 30 CFR 816.89. It would serve as the permit application information counterpart to the performance standards for disposal of noncoal waste materials in 30 CFR 816.89.

We also propose to require that the reclamation plan describe the type and quantity of noncoal waste materials that the permittee intends to dispose of within the proposed permit area, how the permittee intends to dispose of those materials in accordance with 30 CFR 816.89, and the locations of any noncoal waste material disposal sites within the proposed permit area, as well as the contingency plans developed to preclude sustained combustion of combustible noncoal materials. These permit application information requirements would enable the regulatory authority to evaluate the potential environmental impacts of the disposal of noncoal waste materials and ensure that the permit includes appropriate measures to protect society and the environment from the adverse effects of this aspect of surface coal mining operations, as provided in section 102(a) of SMCRA.[307]

Paragraph (m): Consistency With Land Use Plans and Landowner Plans

In the existing rules, this paragraph appears in 30 CFR 780.23(b)(3). However, section 780.23(b) applies only in the context of the postmining land use, which is not consistent with the underlying statutory requirement at section 508(a)(8) of SMCRA.[308] That provision of the Act requires that the reclamation plan describe the consideration that has been given to making the surface coal mining and reclamation operations themselves consistent with surface owner plans and applicable state and local land use plans and programs. This provision is separate and distinct from the requirement in section 508(a)(3) of the Act [309] that the reclamation plan discuss the relationship of the postmining land use to existing land use policies and plans and the comments of the surface owner. Therefore, we propose to move the provision in existing 30 CFR 780.23(b)(3) to new § 780.12(m) to ensure that, in discussing consistency with surface owner plans and applicable state and local land use plans, the reclamation plan addresses the consistency of the proposed operations (not just the proposed postmining land use) with those plans.

4. Section 780.13: What additional maps and plans must I include in the reclamation plan?

We propose to redesignate existing 30 CFR 780.14 as 30 CFR 780.13. We also propose to combine existing paragraphs (a) and (b) into paragraph (a) and redesignate existing paragraph (c) as paragraph (b).

We propose to remove the requirement in existing 30 CFR 780.14(b)(7) for maps showing each air pollution collection and control facility because that requirement is associated with regulations in 30 CFR 816.95 that the court struck down in 1980 and that we removed in 1983. Specifically, the court struck down our authority to regulate air pollution under SMCRA, except for air pollution attendant to erosion.[310] See the portion of this preamble concerning our proposed removal of 30 CFR 780.15 for additional discussion.

In proposed paragraph (a)(7), which corresponds to existing paragraph (b)(6), we propose to add a requirement for a map showing the location of each point at which water will be discharged from the proposed permit area to a surface-water body and the name of that water body, consistent with equivalent requirements in sections 507(b)(10) and (14) of SMCRA.[311]

In proposed paragraph (a)(11), which corresponds to existing paragraph (b)(11), we propose to replace the terms “coal processing waste bank” and “coal processing waste dam and embankment” with “refuse pile” and “coal mine waste impounding structure” to employ terminology consistent with the definitions and performance standards that we adopted on September 26, 1983 (48 FR 44006). We also propose to add a reference to siltation structures, consistent with our addition of that terminology and requirements for those structures on September 26, 1983 (48 FR 44032).

We propose to add paragraphs (a)(12) through (a)(14), which would require a map showing each segment of a perennial or intermittent stream that would be mined through, buried, or diverted; any perennial or intermittent stream segment to be restored, any temporary or permanent stream-channel Start Printed Page 44493diversion, and each segment of a perennial or intermittent stream that would be improved as part of the fish and wildlife enhancement plan. The regulatory authority would need this information to assist in evaluating whether the proposed application is in compliance with requirements pertaining to activities in perennial and intermittent streams in proposed 30 CFR 780.28 and 816.57.

We also propose to add paragraph (a)(15), which would require a map showing the location and geographic coordinates of each point at which the applicant proposes to monitor groundwater, surface water, or the biological condition of perennial and intermittent streams. The regulatory authority would need this information to determine whether the application includes a sufficient number of monitoring sites and whether those sites are adequately distributed and located to ensure that monitoring results are representative of the entire permit area, as required by proposed 30 CFR 780.23.

In addition, we propose to revise existing 30 CFR 780.14(c), which we propose to redesignate as 30 CFR 780.13(b), by replacing the cross-references to 30 CFR 780.35(c) and 816.71(b) with a cross-reference to 30 CFR 780.35 to be consistent with other changes that we are proposing to those rules. Those changes include moving the design certification requirement formerly located in section 816.71(b) to 30 CFR 780.35(b) to consolidate permitting requirements in subchapter G. The existing rules also include a cross-reference to the certification requirements in 30 CFR 816.73(c) for durable rock fills. We do not propose to include a similar cross-reference in 30 CFR 780.13(b) because we are proposing to remove 30 CFR 816.73 in its entirety, which means that durable rock fills would no longer be allowed.

We propose to add paragraph (c), which would authorize the regulatory authority to require submission of the information required by paragraph (a) in a digital format, when appropriate. We invite comment on whether submission of this information in a digital format should be mandatory rather than discretionary to facilitate review and analysis by the public and the regulatory authority.

5. Why are we proposing to remove existing 30 CFR 780.15?

We propose to remove existing 30 CFR 780.15 and redesignate existing 30 CFR 780.13 as 30 CFR 780.15 because the references to fugitive dust and cross-references to 30 CFR 816.95 in existing 30 CFR 780.15 refer to provisions that we removed in 1983 in response to a court decision striking down our authority to regulate air pollution under SMCRA, except for air pollution attendant to erosion. The court held that “the legislative history indicates that Congress only intended to regulate air pollution related to erosion” [312] and that “the Secretary's authority to regulate [air] pollution is limited to activities related to erosion.” [313] The court remanded former 30 CFR 816.95 and 817.95 (1979), which contained performance standards for fugitive dust control, for revision. However, the court did not address the parallel permitting requirements at 30 CFR 780.15 and 784.26.

The 1983 rulemaking removed all requirements in 30 CFR 816.95 for fugitive dust control practices, including requirements for monitoring of fugitive dust to determine compliance with federal and state air quality standards. That rulemaking also changed the section heading of 30 CFR 816.95 from “Air resources protection” to “Stabilization of surface areas” and replaced the air quality performance standards formerly located in 30 CFR 816.95 with soil stabilization requirements that contain no mention of fugitive dust or air quality monitoring. See 48 FR 1160-1163 (Jan. 10, 1983).

However, the 1983 rulemaking did not remove the parallel permitting requirements in 30 CFR 780.15. Instead, we stated in the preamble to that rulemaking that we agreed with a commenter that we also needed to amend the permit application rules at 30 CFR 780.15 and 784.26 for consistency with the revisions to 30 CFR 816.95 and 817.95, and that we would do so in a subsequent independent rulemaking.[314] Adoption of this proposed rule would fulfill that long-delayed commitment.

In concert with the removal of 30 CFR 780.15, we propose to redesignate existing 30 CFR 780.13, which concerns blasting, as 30 CFR 780.15.

6. Section 780.16: What must I include in the fish and wildlife protection and enhancement plan?

Proposed 30 CFR 780.16 is the counterpart to paragraphs (b) and (c) of existing 30 CFR 780.16. Our proposed revisions to the existing rule would provide greater specificity on the measures that the fish and wildlife protection and enhancement plan in the permit application must include. The proposed revisions would improve implementation of section 515(b)(24) of SMCRA,[315] which provides that “to the extent possible using the best technology currently available,” surface coal mining and reclamation operations must “minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable.” The proposed revisions also are consistent with paragraphs (a) and (d) of section 102 of SMCRA,[316] which provide that two of the purposes of SMCRA are establishing “a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations” and assuring “that surface coal mining operations are so conducted as to protect the environment.”

Likewise, the proposed revisions to 30 CFR 780.16 are consistent with section 515(b)(23) of SMCRA,[317] which requires that surface coal mining and reclamation operations “meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this Act, taking into consideration the physical, climatological, and other characteristics of the site.” Long-standing case law supports the Secretary's authority to adopt these regulations [318] and provides the Secretary “great deference” in determining how to ensure that the Act's provisions are enforced.[319]

Proposed paragraph (a) contains general requirements analogous to existing 30 CFR 780.16(b)(1) and (2). Like the existing rules, it provides that the fish and wildlife protection and enhancement plan must be consistent with the performance standards for fish and wildlife protection and enhancement at 30 CFR 816.97 and must be specific to the fish and wildlife resources of the proposed permit and adjacent areas as identified in the permit application in accordance with 30 CFR 779.20. We propose to add a requirement that the plan also comply with the specific protection and enhancement requirements of 30 CFR 780.16(b) through (e).

Proposed paragraph (b) concerns protection of threatened and endangered species. Like the existing rule, it would require a description of how the proposed operation will comply with the Endangered Species Act. We Start Printed Page 44494propose to add a provision that would expressly require that the fish and wildlife protection and enhancement plan contain a description of any species-specific protection and enhancement plans developed under the Endangered Species Act, which would include any plans developed in accordance with the existing formal section 7(a)(2) Endangered Species Act consultation pertaining to the approval and conduct of surface coal mining and reclamation operations under a SMCRA regulatory program. We propose to add these provisions in response to discussions with the U.S. Fish and Wildlife Service concerning compliance with the Endangered Species Act.

Proposed paragraph (c) would contain requirements for the protection of fish and wildlife other than threatened and endangered species. It would require that the fish and wildlife protection and enhancement plan describe how, to the extent possible using the best technology currently available, the proposed operation will minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, as required by section 515(b)(24) of SMCRA.[320] It lists a number of measures that the fish and wildlife protection and enhancement plan must include to minimize disturbance and adverse impacts, including timing of operations to avoid or minimize disruption to wildlife and retention of forest cover and native vegetation for as long as possible.

As discussed below, riparian (streamside) vegetation plays a critical role in maintaining or restoring the ecological function of a stream. Therefore, proposed paragraph (c)(3) would specify that the fish and wildlife enhancement plan must require maintenance of an intact forested buffer at least 100 feet wide between surface disturbance and a perennial or intermittent stream to the extent possible. This requirement would apply only when the stream is located in a forested area.

Researchers have found that, in small, well-shaded upland streams, as much as 75 percent of the organic food base may be supplied by dissolved organic compounds or detritus such as fruit, limbs, leaves and insects that fall from the forest canopy in the riparian zone.[321] Benthic detritivores (bacteria, fungi and invertebrates) that live on the stream bottom feed on the detritus and form the basis of the aquatic food chain. They pass on this energy when they are, in turn, consumed by larger benthic fauna and eventually by fish. Thus, the streamside forest functions as an important energy source for the entire aquatic food chain from headwaters to estuary.[322]

Furthermore, forested riparian buffers are essential to prevent excessively high water temperatures in coldwater streams and to moderate temperature variations in other streams. One study found a four-fold decline in fish density in coldwater streams after removal of the forested riparian buffer.[323] Another study found that invertebrate populations in streams with forested buffers of 100 feet exhibited no change following clearcutting of the area outside the buffer zone. However, streams in watersheds in which clearcutting operations left narrower forested buffers experienced significant changes in the species diversity of invertebrate populations, with the extent of the changes correlating to buffer width.[324]

Studies of effective buffer widths for wildlife generally recommend wider buffers than those required for sediment control and protection of water quality. For example, recommended buffer widths for conservation of forest-dwelling birds often exceed 300 feet.[325] A comprehensive guide to riparian forest buffers in the Chesapeake Bay watershed provides a range of recommended minimum buffer widths for different objectives: 50 to 275 feet for wildlife habitat, 60 to 225 feet for flood mitigation, 50 to 175 feet for sediment removal, 35 to 140 feet for nitrogen removal, 20 to 60 feet for water temperature moderation, and 20 to 45 feet for bank stabilization and aquatic food web maintenance.[326] The minimum 100-foot buffer width that we propose to adopt lies within the lower end of the range of recommended minimum widths for wildlife habitat and flood mitigation, in the middle of the range for sediment removal and nitrogen removal, and exceeds the range recommended for water temperature moderation and bank stabilization and aquatic food web maintenance. Therefore, the 100-foot minimum width that we have proposed for the riparian buffer is an appropriate midrange compromise that strikes a balance among property rights and the various recommended buffer widths for relevant objectives, consistent with section 102(f) of SMCRA,[327] which provides that one of the purposes of SMCRA is to strike a balance between environmental protection and the need for coal production.

We propose to specify that the buffer width must be measured horizontally on a line perpendicular to the stream beginning at the bankfull elevation or, if there are no discernible streambanks, the centerline of the active channel. We derived this provision primarily from Natural Resources Conservation Service Conservation Practice Standard Code 391 (“Riparian Forest Buffer”) (July 2010), which states: “Measurement shall begin at and perpendicular to the normal water line, bank-full elevation, or the top of the bank as determined locally.” For streams that lack defined banks, our proposed rule would adopt the standard used in a riparian buffer conservation zone model ordinance, which calls for measurement from the centerline of the stream in those circumstances.[328]

Another measure listed in proposed paragraph (c) is a requirement for periodic evaluation of the impacts of the operation on fish, wildlife, and related environmental values in the permit and adjacent areas. This paragraph would require that the permittee use that information to modify operations or take other action if necessary to avoid or minimize unforeseen adverse impacts on fish, wildlife, and related environmental values.

Proposed paragraph (d)(1) would require that the fish and wildlife protection and enhancement plan include a description of the measures that the permit applicant proposes to implement as the best technology currently available to enhance fish, wildlife, and related environmental values both within and outside the area Start Printed Page 44495to be disturbed by mining activities, where practicable. If the applicant determines that it is not practicable to implement any enhancement measures, the application would have to explain the rationale for this determination. Proposed paragraphs (d)(1)(i) through (xi) list examples of potential enhancement measures. However, the applicant may select other measures. There is no expectation that each application will include all the measures listed here.

Under proposed paragraph (d)(2), implementation of fish and wildlife enhancement measures would be mandatory whenever the proposed operation would result in the long-term loss of native forest, other native plant communities, or a segment of a perennial or intermittent stream. In this context, “long-term” means that the permittee would not be able to correct the resource loss before expiration of the period of extended revegetation responsibility as prescribed in proposed 30 CFR 816.115. Thus, the removal of significant native forest cover and the loss of the ecological benefits associated with that cover would be considered a long-term loss, as would the burial of a perennial or intermittent stream segment by an excess spoil fill or coal mine waste disposal facility.

We invite comment on whether there are other interpretations of “long-term” that we should consider. We also invite comment on whether the regulatory authority may consider mitigation measures approved under the authority of the Clean Water Act as satisfying the separate SMCRA requirement for mandatory enhancement measures. Acceptance may enhance coordination of permitting reviews under SMCRA and the Clean Water Act. We request that anyone with data on the effectiveness and long-term viability of Clean Water Act mitigation measures that have already been implemented submit that data to us for consideration in our decision as to whether to accept Clean Water Act mitigation measures as fish and wildlife enhancement measures under SMCRA. We also request that anyone with data on downstream impacts from coal mining and the effectiveness of Clean Water Act mitigation measures on those impacts submit that data to us for consideration. Finally, we request that anyone with data on the cumulative downstream impacts of coal mining that are not addressed by Clean Water Act mitigation measures or National Pollutant Discharge Elimination System (NPDES) permits submit that data to us for consideration.

Proposed paragraph (d)(2)(ii) would require that the scope of the enhancement measures be commensurate with the potential long-term adverse impact to those resources and that the measures be permanent in nature. For example, riparian corridors must be protected by conservation easements (dedicated to an appropriate agency or organization) or deed restrictions or so that the newly planted vegetation is not destroyed after bond release and termination of jurisdiction under SMCRA. We invite comment on whether our regulations should define “commensurate” in this context and, if so, how we should define that term.

Proposed paragraph (d)(2)(iii)(A) would require that enhancement measures be implemented within the watershed in which the proposed operation is located, unless opportunities for enhancement are not available within that watershed. In the latter situation, the proposed rule would allow the permit applicant to propose enhancement measures for implementation in the nearest adjacent watershed in which enhancement opportunities exist. Proposed paragraph (d)(2)(iii)(B) would require that each regulatory program prescribe the size of the watershed for purposes of paragraph (d)(2)(iii)(A) of this section, using a generally-accepted watershed classification system. We invite comment on whether we should instead establish a standard size nationwide as part of the final rule. The HUC-12 (U.S. Geological Survey 12-digit Watershed Boundary Dataset) watershed is one possibility.

Proposed paragraph (d)(2)(iv) would require that completion of mandatory enhancement measures be made a condition of permit issuance to ensure that this requirement is both enforceable and covered by the performance bond posted for the operation.

Proposed paragraph (d)(3) would require that the area to be disturbed by implementation of enhancement measures be included within the proposed permit area whenever implementation of those measures would result in more than a de minimis disturbance of the surface of land outside the area to be mined. This provision would ensure that the regulatory authority can enforce implementation of those measures under the SMCRA permit and that their implementation would be covered by the performance bond for the operation.

Proposed paragraph (e) would contain the U.S. Fish and Wildlife Service permit application review provisions located at existing 30 CFR 780.16(c). We propose to revise these provisions in response to discussions with the U.S. Fish and Wildlife Service concerning compliance with the Endangered Species Act.

Proposed paragraph (e)(1)(i) would require that the regulatory authority provide the fish and wildlife protection and enhancement plan developed under this section as part of the permit application to the applicable regional or field office of the U.S. Fish and Wildlife Service whenever the resource information submitted under proposed 30 CFR 779.20 includes species listed as threatened or endangered under the Endangered Species Act, critical habitat designated under that law, or species proposed for listing as threatened or endangered under that law. The proposed rule would require that the regulatory authority provide this information to the Service no later than the time that the regulatory authority provides written notice of receipt of an administratively complete permit application to the Service under proposed 30 CFR 773.6(a)(3)(ii). Under existing 30 CFR 780.16(c), the Service must request this information from the regulatory authority rather than receiving it automatically.

Proposed paragraph (e)(1)(ii) is similar to existing 30 CFR 780.16(c) in that it would allow the Service to request an opportunity to review the fish and wildlife protection and enhancement plans submitted as part of other permit applications even when the resource information in those applications does not include species listed as threatened or endangered under the Endangered Species Act, critical habitat designated under that law, or species proposed for listing as threatened or endangered under that law. Under both the existing and proposed rules, the regulatory authority must provide that information to the Service within 10 days of receipt of the request.

Proposed paragraph (e)(2) would specify how the regulatory authority must handle comments received from the Service and how any disagreements are to be resolved. Proposed paragraph (e)(2) generally parallels the provisions that we and the Service agreed to as a result of a formal section 7(a)(2) Endangered Species Act consultation pertaining to the approval and conduct of surface coal mining and reclamation operations under a SMCRA regulatory program. Specifically, proposed paragraphs (e)(2)(i) through (iii) would provide that if the regulatory authority does not agree with a Service recommendation that pertains to fish and wildlife or plants listed as threatened or endangered under the Start Printed Page 44496Endangered Species Act or to critical habitat designated under that law, the regulatory authority must explain the rationale for that decision in a comment disposition document and must provide a copy of that document to the pertinent Service field office. The proposed rule also would require that the regulatory authority provide a copy of that document to the appropriate OSMRE field office for informational purposes and to allow the OSMRE field office to monitor resolution of the disagreement. If the Service field office does not concur with the regulatory authority's decision and the regulatory authority and the Service field office are subsequently unable to conclude an agreement at that level, the proposed rule allows either the regulatory authority or the Service to elevate the issue through the chain of command of the regulatory authority, the Service, and OSMRE for resolution.

Proposed paragraph (e)(2)(iv) would provide that the regulatory authority may not approve the permit application until all issues are resolved in accordance with this process and the regulatory authority receives written documentation from the Service that all issues have been resolved. Like all provisions of proposed paragraph (e)(2), this provision is intended to ensure the protection of threatened and endangered species in accordance with the Endangered Species Act.

7. Section 780.19: What baseline information on hydrology, geology, and aquatic biology must I provide?

Proposed paragraph (a): General Requirements

Proposed paragraph (a) would require that each permit application contain information on the hydrology, geology, and aquatic biology of the proposed permit and adjacent areas in sufficient detail to assist in preparing the determination of the probable hydrologic consequences of mining under 30 CFR 780.20, preparing the hydrologic reclamation plan under 30 CFR 780.22, preparing the surface-water and groundwater monitoring plans under 30 CFR 780.23, preparing the plans for monitoring the biological condition of streams under 30 CFR 780.23, demonstrating that all reclamation required by the regulatory program can be accomplished as required by 30 CFR 773.15(b), preparing the cumulative hydrologic impact assessment under 30 CFR 780.21, and determining whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area as required by 30 CFR 773.15(e).

Section 510(b)(3) of SMCRA [329] specifies that the regulatory authority may not approve a permit application unless the regulatory authority has “made an assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance specified in section 507(b).” This assessment is commonly referred to as the CHIA. Section 507(b)(11) of SMCRA,[330] the pertinent part of the SMCRA section referenced in the quote above, requires that each permit application include—

a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and ground water systems including the dissolved and suspended solids under seasonal flow conditions and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the regulatory authority of the probable cumulative impact of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability.

Section 510(b)(3) also specifies that the regulatory authority may not approve a permit unless the application affirmatively demonstrates and the regulatory authority finds in writing that the proposed operation “has been designed to prevent material damage to the hydrologic balance outside the permit area.” In addition, section 510(b)(2) of SMCRA [331] specifies that the regulatory authority may not approve a permit unless the application affirmatively demonstrates and the regulatory authority finds in writing that the “applicant has demonstrated that reclamation as required by this Act and the State or Federal program can be accomplished under the reclamation plan contained in the permit application.”

Without sound baseline information on surface-water and groundwater quality and quantity and the biological communities in streams, the regulatory authority cannot prepare an adequate CHIA or determine whether the proposed mining operation has been designed to prevent material damage to the hydrologic balance outside the permit area. A lack of adequate baseline data and accurate mining impact analyses based on that data likewise would impair the ability of the regulatory authority to make the finding required by 30 CFR 773.15(b) and section 510(b)(2) of SMCRA [332] concerning the feasibility of reclamation. Proposed 30 CFR 780.19 would refine and expand baseline data requirements for permit applications to promote more effective implementation of sections 507(b)(11) and 510(b)(3) of SMCRA [333] and better protect streams, groundwater, and related environmental values.

Proposed Paragraph (b): Information on Groundwater

Proposed paragraph (b)(1) would require that each permit application include information sufficient to document seasonal variations in the quality, quantity, and usage of groundwater, including all surface discharges, within the proposed permit and adjacent areas. Currently, this provision is part of existing 30 CFR 780.21(b)(1).

Proposed paragraph (b)(2) would require that the permit application include an assessment of the seasonal characteristics of any underground mine pool that is present within the proposed permit or adjacent areas unless the applicant demonstrates, and the regulatory authority finds, that the mine pool is not hydrologically connected to the proposed permit area. Proposed paragraph (b)(2) also would require that the determination of the probable hydrologic consequences of the proposed operation include a discussion of the effect of the proposed mining operation on any underground mine pools within the proposed permit and adjacent areas. In our experience, the mine pools associated with underground mines adjacent to, underlying, or overlying the proposed operation are not always properly or completely described, including the current or potential degree of hydrologic connection between the mine pool and the proposed operation. The level of detail and data collection needs to be sufficient for the reviewer to understand the complex interaction between the mine pools and the hydrology of the proposed permit and adjacent areas.

Proposed paragraph (b)(3) would allow the regulatory authority to require the installation of properly-screened monitoring wells when necessary to obtain groundwater quality and quantity information sufficient to characterize seasonal variations. Properly-designed and constructed monitoring wells are essential to collection of reliable and scientifically-valid data, which section 517(b)(2) of SMCRA requires.Start Printed Page 44497

Proposed paragraph (b)(4) would expand the list of parameters in existing 30 CFR 780.21(b)(1) that must be included in the description of groundwater quality. Proposed new parameters include major anions, major cations, the cation-anion balance, hot acidity,[334] total alkalinity, pH, ammonia, arsenic, cadmium, copper, nitrogen, selenium, and zinc. Our rationale for adding these parameters is that a complete characterization of the prevailing premining hydrologic balance, including water chemistry, is necessary to fully assess the impacts of the proposed operations. The additional data also would facilitate quality assurance and quality control procedures. Finally, the additional baseline data may document existing water quality or other problems and thus provide the permittee with a defense against later assertions that it has caused adverse impacts to a stream with respect to those parameters.

The proposed addition of selenium and a requirement for both total dissolved solids and specific conductance (rather than either total dissolved solids or specific conductance, as in the existing regulations) reflect concerns identified in scientific studies documenting the adverse impacts that elevated concentrations of those parameters have had on aquatic life in streams in the central Appalachian coalfields. Part II of this preamble summarizes some of those studies.

Proposed paragraph (b)(5) is substantively identical to the groundwater quantity information requirements in the last sentence of existing 30 CFR 780.21(b)(1).

Proposed paragraph (b)(6)(i) would require that the permit applicant establish monitoring wells (or equivalent monitoring points like springs and other direct surface discharges of groundwater) at a sufficient number of locations within the proposed permit and adjacent areas to determine groundwater quality, quantity, and movement in each aquifer above or immediately below the lowest coal seam to be mined. At a minimum, for each aquifer, we propose to require monitoring points upgradient and downgradient of the proposed permit area and within the proposed permit area to ensure collection of data sufficient to fully describe baseline groundwater conditions.

Proposed paragraph (b)(6)(ii) would require that the permit applicant collect water samples from the locations identified in proposed paragraph (b)(6)(i) at equally-spaced monthly intervals for a minimum of 12 consecutive months to document seasonal variations in the quality of groundwater through a complete hydrologic cycle. Proposed paragraph (b)(6)(ii) also would require that the permit applicant analyze those samples for all parameters listed in proposed paragraph (b)(4) at the same frequency. Analysis of all listed parameters would establish a comprehensive baseline for groundwater quality.

Proposed paragraph (b)(6)(iii) would require that the permit applicant take the measurements listed in proposed paragraph (b)(5) at each location identified in proposed paragraph (b)(6)(i) at equally spaced monthly intervals for a minimum of 12 consecutive months to document seasonal variations in groundwater levels and to establish a comprehensive baseline for groundwater availability.

Currently, regulatory authorities require anywhere from as few as three samples (high, mean, and low base flow) to multiple years of sampling. Requiring a minimum of 12 consecutive, equally-spaced monthly samples would ensure that the baseline data collected would cover the entire water year.[335] Under both our existing rules and the 1979 rules, the regulatory authority could accept fewer than 12 months of data, provided that, as explained in the preamble to the 1979 rules, the maximum seasonal variation could be established by extrapolation from existing data collected within the same watershed or in a similar watershed through the use of modeling or other reasonable predictive tools.[336] However, our past experience indicates that extrapolation is not a reliably accurate method to document and describe seasonal variation. Therefore, we now propose to require collection of actual data for the complete water year.

Proposed paragraph (b)(6)(iv) would require that the regulatory authority extend the minimum baseline data collection period whenever data available from the National Oceanic and Atmospheric Administration or similar databases indicate that the region in which the proposed operation is located experienced severe drought (−3.0 or lower on the Palmer Drought Severity Index [337] ) or abnormally high precipitation (3.0 or higher on the Palmer Drought Severity Index) during the initial baseline data collection period. The Palmer Drought Severity Index is a national index used to characterize climatic conditions across the country on a weekly frequency. During excessively wet periods, the seasonal concentrations of chemical constituents might be lower than normal because flows and water levels are higher. During severe drought periods, the concentrations of chemical constituents might be higher than normal because flows and water levels are lower. We propose to require that baseline data collection continue until the dataset includes 12 consecutive months without severe drought or abnormally high precipitation. Without this provision, the baseline data in the permit application would not be an accurate description of normal premining conditions.

Proposed Paragraph (c): Information on Surface Water

Proposed paragraph (c)(1) would require that each permit application include information sufficient to document seasonal variation in surface-water quality, quantity, and usage within the proposed permit and adjacent areas. Currently, this provision is part of existing 30 CFR 780.21(b)(2).

Proposed paragraph (c)(2) would expand the list of parameters in existing 30 CFR 780.21(b)(2) that must be included in the descriptions of surface water quality. Proposed new parameters include major anions, major cations, the cation-anion balance, hot acidity,[338] total alkalinity, pH, ammonia, arsenic, cadmium, copper, nitrogen, selenium, and zinc. We also propose to require that the applicant include any additional parameters required by the agency implementing the NPDES program under section 402 of the Clean Water Act.[339] Our rationale for adding these parameters is that a complete characterization of the prevailing premining hydrologic balance, including water chemistry, is necessary to fully assess the impacts of the proposed operations. The additional data also would facilitate quality assurance and quality control procedures. Finally, the additional baseline data may document existing water quality or other problems and thus provide the permittee with a defense against later assertions that it Start Printed Page 44498has caused adverse impacts to a stream with respect to those parameters.

The proposed addition of selenium and a requirement for both total dissolved solids and specific conductance (rather than just one or the other, as in the existing regulations) reflect concerns identified in scientific studies documenting the adverse impacts that elevated concentrations of those parameters have had on aquatic life in streams in the central Appalachian coalfields. Part II of this preamble summarizes some of those studies.

Proposed paragraph (c)(3)(i) would require that the applicant provide baseline information on seasonal flow variations and peak-flow magnitude and frequency for all perennial, intermittent, and ephemeral streams and other surface-water discharges within the proposed permit and adjacent areas. This information is needed to prepare the determination of the probable hydrologic consequences of mining under proposed 30 CFR 780.20 and to prepare the surface-water runoff control plan that we propose to require under 30 CFR 780.29. Proposed paragraph (c)(3)(i) also would require that the applicant provide information on the extent of existing usage for existing uses and anticipated usage for all reasonably foreseeable uses. This information is needed to prepare the determination of the probable hydrologic consequences of mining and the CHIA and to establish permit-specific criteria for material damage to the hydrologic balance outside the permit area, consistent with our proposed definition of that term in 30 CFR 701.5.

Proposed paragraph (c)(3)(ii) would require the use of generally-accepted professional flow measurement techniques to ensure the accuracy of baseline flow data. The proposed rule would prohibit the use of subjective visual flow observations because of the inherent lack of precision in those observations and variations among observers.

Proposed paragraph (c)(4)(i) would require that the permit applicant establish monitoring points at a sufficient number of locations within the proposed permit and adjacent areas to determine the quality and quantity of water in each stream within those areas. At a minimum, we propose to require monitoring points upgradient and downgradient of the proposed permit area in each perennial and intermittent stream within the proposed permit and adjacent areas, as well as in a representative number of ephemeral streams within the proposed permit area, to ensure collection of data sufficient to fully describe baseline surface water conditions. Ephemeral streams in the adjacent area are unlikely to be affected by mining, so we do not propose to require monitoring of those streams.

Proposed paragraph (c)(4)(ii) would require that the permit applicant collect water samples from the locations identified in proposed paragraph (c)(4)(i) at equally-spaced monthly intervals for a minimum of 12 consecutive months to document seasonal variations in surface water quality through a complete hydrologic cycle. Proposed paragraph (c)(4)(ii) also would require that the permit applicant analyze those samples for all parameters listed in proposed paragraph (c)(2) at the same frequency. Analysis of all listed parameters would establish a comprehensive baseline for surface water quality.

Proposed paragraph (c)(4)(iii) would require that the permit applicant take the measurements listed in proposed paragraph (c)(3) at each location identified in proposed paragraph (c)(4)(i) at equally spaced monthly intervals for a minimum of 12 consecutive months to document seasonal variations in streamflow and to establish a comprehensive baseline for streamflow and surface water availability.

Currently, regulatory authorities require anywhere from as few as three samples (high, mean, and low base flow) to multiple years of sampling. Requiring a minimum of 12 consecutive, equally-spaced monthly samples would ensure that the baseline data collected would cover the entire water year.[340] Under both our existing rules and the 1979 rules, the regulatory authority could accept fewer than 12 months of data, provided that, as explained in the preamble to the 1979 rules, the maximum seasonal variation could be established by extrapolation from existing data collected within the same watershed or in a similar watershed through the use of modeling or other reasonable predictive tools.[341] However, our past experience indicates that extrapolation is not a reliably accurate method to document and describe seasonal variation. Therefore, we now propose to require collection of actual data for the complete water year. In addition, our proposal is consistent with the approach now being taken by agencies responsible for implementing the Clean Water Act.

Proposed paragraph (c)(4)(iv) would require that the regulatory authority extend the minimum baseline data collection period whenever data available from the National Oceanic and Atmospheric Administration or similar databases indicate that the region in which the proposed operation is located experienced severe drought (−3.0 or lower on the Palmer Drought Severity Index [342] ) or abnormally high precipitation (3.0 or higher on the Palmer Drought Severity Index) during the initial baseline data collection period. The Palmer Drought Severity Index is a national index used to characterize climatic conditions across the country on a weekly frequency. During excessively wet periods, the seasonal concentrations of chemical constituents might be lower than normal because flows and water levels are higher. During severe drought periods, the concentrations of chemical constituents might be higher than normal because flows and water levels are lower. We propose to require that baseline data collection continue until the dataset includes 12 consecutive months without severe drought or abnormally high precipitation. Without this provision, the baseline data in the permit application would not be an accurate description of normal premining conditions.

Proposed paragraph (c)(5) would require that the applicant provide records of precipitation amounts for the proposed permit area, using on-site self-recording devices. Precipitation records must be adequate to generate and calibrate a hydrologic model of the site, should the regulatory authority require such a model. This information is needed to prepare the PHC determination under proposed 30 CFR 780.20 and the surface-water runoff control plan required under proposed 30 CFR 780.29.

Proposed paragraph (c)(6) would require that the applicant identify and assess all perennial, intermittent, and ephemeral streams within the permit and adjacent areas. The assessment would include a description of the physical and hydraulic characteristics of the stream channel, as well as the biological condition of each stream, and the nature of vegetation within the riparian zone. For streams that appear on the list of impaired surface waters prepared under section 303(d) of the Clean Water Act,[343] it also would Start Printed Page 44499require identification of the stressors and associated total maximum daily loads, if applicable. Proposed paragraph (c)(6) would result in documentation of the premining physical and biological conditions of streams for purposes of evaluating the impacts of mining, establishing stream restoration standards, and establishing revegetation requirements for riparian corridors.

Proposed Paragraph (d): Additional Information for Discharges From Previous Coal Mining Operations

Proposed paragraph (d) would require that the applicant collect and analyze a one-time sample of all existing discharges from previous mining operations within the proposed permit and adjacent areas during the low baseflow season. Both the applicant and the regulatory authority would use the results of these analyses to identify any additional parameters of concern. Data from previous mining operations also can be helpful in preparing the determination of the probable hydrologic consequences of mining and the CHIA. Hydrologic data from both reclaimed and unreclaimed minesites can be extremely valuable in predicting the impacts of future mining.

Proposed Paragraph (e): Biological Condition Information for Streams

Proposed paragraph (e)(1) would require that each permit application include an assessment of the biological condition of each perennial and intermittent stream within the proposed permit and adjacent areas as well as an assessment of the biological condition of a representative sample of ephemeral streams within those areas. This requirement would not apply to a permit application for which the regulatory authority grants an exemption under proposed paragraph (h).

Proposed paragraph (e)(2) would require that persons conducting the assessment use a multimetric bioassessment protocol approved by the state or tribal agency responsible for preparing the water quality inventory report required under section 305(b) of the Clean Water Act [344] or other scientifically-valid multimetric bioassessment protocols used by agencies responsible for implementing the Clean Water Act. Multimetric indices include metrics such as species richness, complexity, and tolerance as well as trophic measures. They provide a quantitative comparison (often referred to as an index of biological or biotic integrity) of the ecological complexity of biological assemblages relative to a regionally-defined reference condition. However, we also propose to establish minimum standards that those protocols must meet. First, the bioassessment protocol must be based upon the measurement of an appropriate array of aquatic organisms, including benthic macroinvertebrates. Benthic macroinvertebrates are particularly useful for assessing the biological condition of the stream because certain species are highly sensitive to the presence of pollutants. Furthermore, we propose to require identification of benthic macroinvertebrates to the genus level because a bioassessment protocol that identifies macroinvertebrates only to the family level may not be capable of differentiating between pollution-tolerant and pollution-intolerant genera within the same family. On the other hand, a bioassessment protocol that identifies organisms to the species level may not be consistent with available indices of biological integrity.

Finally, proposed paragraph (e)(2) would require that the bioassessment protocol result in the calculation of index values for both habitat and macroinvertebrates and provide a correlation of index values to the capability of the stream to support designated uses under section 101(a) or 303(c) of the Clean Water Act, as well as any other existing or reasonably foreseeable uses. We seek comment on the effectiveness of using index scores from bioassessment protocols to ascertain impacts on existing, reasonably foreseeable, or designated uses. We also invite commenters to suggest other approaches that may be equally or more effective.

Proposed Paragraph (f): Geologic Information

Proposed paragraph (f) is substantively identical to the existing rules at 30 CFR 780.22(b) through (d), except as discussed below. We propose to eliminate the provision in existing 30 CFR 780.22(b)(2)(ii) that allows the regulatory authority to waive the requirement that the permit application include analyses of each stratum in the geological column for alkalinity-producing materials. We also propose to eliminate the provision in existing 30 CFR 780.22(b)(2)(iii) that allows the regulatory authority to waive the requirement that the permit application include an analysis of the coal seam for pyritic sulfur. Both analyses are necessary for a complete acid-base accounting, assessment of the potential for acid mine drainage, and prediction of the total dissolved solids content of postmining discharges. In addition, this information is necessary to prepare an accurate determination of the probable hydrologic consequences of mining under proposed 30 CFR 780.20 and the cumulative hydrologic impact assessment under proposed 30 CFR 780.21. Finally, the information is necessary to assist the regulatory authority in determining whether reclamation is possible and whether the proposed operation will create a long-term postmining discharge requiring treatment.

We invite comment on whether we should adopt provisions similar to proposed 30 CFR 777.13(b) to prescribe acceptable methodologies for the geochemical analyses required by proposed 30 CFR 780.19(f)(3)(ii) and (iii).

Proposed Paragraph (g): Cumulative Impact Area Information

Proposed paragraph (g) is substantively identical to existing 30 CFR 780.21(c), with the exception that we propose to clarify that the permit applicant may submit data and analyses from nearby mining operations if the site of those operations is representative of the proposed operations in terms of topography, hydrology, geology, geochemistry, and method of mining.

Proposed Paragraph (h): Exception for Operations That Avoid Streams

Proposed paragraph (h) would allow a permit applicant to request that the regulatory authority waive the biological condition information requirements of proposed 30 CFR 780.19(e). The regulatory authority may approve the request only if it determines that the applicant has demonstrated that the proposed operation will not mine through or bury a perennial or intermittent stream; create a point-source discharge to any perennial, intermittent, or ephemeral stream; or modify the baseflow of any perennial or intermittent stream.

Proposed Paragraph (i): Coordination With Clean Water Act Agencies

Proposed paragraph (i) would require that SMCRA regulatory authorities consult with the agencies responsible for issuing permits, authorizations, and certifications under the Clean Water Act and make best efforts to minimize differences in baseline data collection points and parameters to the extent practicable and consistent with each agency's mission, statutory requirements, and implementing regulations. Coordination could reduce the overall regulatory impact to the industry, reduce the workload of Start Printed Page 44500regulatory authorities, and expedite the permitting process. Applicants and permittees may use data already provided to or collected by a Clean Water Act agency to satisfy SMCRA requirements, provided that the data is reasonably current and of the type, scope, and quantity required for SMCRA purposes. Proposed paragraph (i) is consistent with the intent of section 713 of SMCRA,[345] which, among other things, promotes coordination of regulatory activities under SMCRA and the Clean Water Act.

Proposed Paragraph (j): Corroboration of Baseline Data

Proposed paragraph (j) would require that the regulatory authority either corroborate a sample of the baseline information in each permit application or arrange for a third party to conduct the corroboration at the applicant's expense. Corroboration may include, but is not limited to, simultaneous sample collection and analysis, use of field verification measurements, or comparison of application data with application or monitoring data from adjacent operations. The existing regulations at 30 CFR 777.13 already require that the permit applicant document and describe the methods and persons collecting and analyzing technical data. We interpret the existing regulations as meaning that the regulatory authority has an obligation to monitor the accuracy and completeness of data collection and analyses for permit applications. Proposed paragraph (j) would make this responsibility explicit.

Proposed Paragraph (k): Permit Nullification for Inaccurate Information

Proposed paragraph (k) specifies that a permit will be void from the date of issuance and have no legal effect if the permit issuance was based on substantially inaccurate baseline information. Under those circumstances, the proposed rule provides that the permittee must cease mining-related activities and immediately begin to reclaim the site. This measure would avoid or minimize the environmental harm that could result from initiation or continuation of an operation approved on the basis of substantially inaccurate data. We do not intend for this provision to apply in situations in which the application contains only minor omissions or errors. By “substantially inaccurate,” we mean situations such as missing or false chemical analyses of geologic strata or misrepresentation of data from another permit application as being collected from the proposed permit and adjacent areas. Adoption of proposed paragraph (k) would be in furtherance of section 102(a) of SMCRA,[346] which provides that one of the purposes of the Act is to establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.

8. Section 780.20: How must I prepare the determination of the probable hydrologic consequences of my proposed operation (PHC determination)?

Proposed paragraph (a) would revise the requirements concerning preparation of the determination of the probable hydrologic consequences of mining in existing 30 CFR 780.21(f)(1) through (f)(3) by adding a requirement to consider the impacts of the proposed operation on the biological condition of perennial, intermittent, and ephemeral streams located within the proposed permit and adjacent areas, not just on the quantity and quality of surface water and groundwater as in the existing rule. Proposed paragraph (a)(1) would replace the requirement in existing 30 CFR 780.21(f)(3)(i) for a finding on whether the proposed operation may cause adverse impacts to the hydrologic balance with a requirement for a finding on whether the proposed operation may cause material damage to the hydrologic balance outside the permit area. These proposed changes would more closely tailor the PHC determination to both the definition of “material damage to the hydrologic balance outside the permit area” that we propose to add to 30 CFR 701.5 and the existing finding that the regulatory authority must make before approving a permit application under 30 CFR 773.15(e), which, in relevant part, requires a determination that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

Proposed paragraph (a)(4) would require a finding on whether the proposed operation would either intercept or create aquifers in surface mine spoil or underground mine voids. Surface mining frequently results in the formation of a new aquifer in spoil that is placed in either the backfill or an excess spoil fill. This aquifer may have substantially different quality and quantity characteristics than water found in undisturbed overburden strata. Underground mine voids can store large volumes of water in what are commonly known as mine pools. The storage volume and discharge rates of these pools may be orders of magnitude larger than those associated with aquifers in surface mine spoil because mine pools typically collect water from a much larger area than do surface mine spoil aquifers. Discharges from underground mine pools are frequently of relatively high volume because their recharge rate averages 0.47 gallons per minute per acre of mine voids.[347]

The quantity and quality of the groundwater that recharges the mine pool from overlying and underlying rock strata can significantly influence postmining water quality.[348] These mine pool aquifers may discharge directly to the land surface or to groundwater systems downgradient of the aquifer. The PHC determination must consider the timing, quality, quantity, and location of these discharges to adequately assess the probable impacts of the proposed operation on the hydrologic balance. The new finding also would require evaluation of the impacts of any temporary or permanent dewatering of aquifers, including underground mine pools, on the hydrologic balance.

Proposed paragraph (a)(5) would expand the finding in existing 30 CFR 780.21(f)(3)(iv) concerning what impact the proposed operation would have on specific water quality parameters to include the parameters for which baseline information would be required under proposed 30 CFR 780.19(b) and (c). Furthermore, we propose to add requirements in paragraph (a)(5) for findings on what impact the proposed operation would have on precipitation runoff patterns and characteristics; seasonal variations in streamflow; the magnitude and frequency of peak flows in perennial, intermittent, and ephemeral streams within the proposed permit and adjacent areas; and the biological condition of those streams. Finally, we propose to add a requirement in paragraph (a)(5)(iv) for a finding about the impact that any diversion of surface or subsurface flows to underground mine workings or any changes in watershed size as a result of the postmining surface configuration would have on the availability of surface water and groundwater. The changes in proposed paragraph (a)(5) Start Printed Page 44501would improve the comprehensiveness and predictive accuracy of the PHC determination. They also would provide a more scientifically sound basis for development of the CHIA required by proposed 30 CFR 780.21 and the hydrologic reclamation plan required by proposed 30 CFR 780.22.

Proposed paragraph (b) is substantively identical to existing 30 CFR 780.21(b)(3), with the exception that we propose to expand the conditions under which the regulatory authority may request that the applicant submit supplemental information to include those situations in which the PHC determination indicates that the proposed operation may result in adverse impacts to the biological condition of perennial or intermittent streams within the proposed permit area or the adjacent area. We also propose to clarify that the regulatory authority may request additional geochemical analyses of overburden materials and information concerning underground mine pools and their impacts. The new provisions are necessary to ensure that the PHC determination is sufficiently comprehensive to support development of the hydrologic reclamation plan required by 30 CFR 780.22 and the CHIA required by 30 CFR 780.21.

Proposed paragraph (c)(1) is substantively identical to existing 30 CFR 780.21(f)(4), which requires that the regulatory authority determine whether a new or updated PHC determination is needed as part of the process of evaluating permit revision applications. We propose to add paragraph (c)(2) to clarify that the applicant must prepare a new or updated PHC determination whenever a regulatory authority review finds that one is needed.

9. Section 780.21: What requirements apply to preparation and review of the cumulative hydrologic impact assessment (CHIA)?

Our existing regulations contain very few standards or criteria for preparation of the CHIA. Those regulations, which are located at 30 CFR 780.21(g)(1), provide that the regulatory authority must prepare an assessment of the probable cumulative hydrologic impacts of the proposed operation and all anticipated mining upon surface-water and groundwater systems in the cumulative impact area. The regulations further state that the assessment must be sufficient to determine, for purposes of permit approval, whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. The lack of standards or content requirements for the CHIA, coupled with the lack of a definition of material damage to the hydrologic balance, is an impediment to stream protection under SMCRA because there are no objective criteria to apply.

We propose to remedy that problem, in part, by establishing more detailed content requirements for the CHIA, based on our experience as the regulatory authority in Tennessee and on Indian lands and on our experience in evaluating the implementation of state regulatory programs. Our proposed requirements would improve implementation of sections 507(b)(11) and 510(b)(3) of SMCRA,[349] which require that the regulatory authority prepare a CHIA and provide that the regulatory authority may not approve a permit application unless the application affirmatively demonstrates, and the regulatory authority finds in writing, that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Section 201(c)(2) of SMCRA [350] directs the Secretary, acting through OSMRE, to “publish such rules and regulations as may be necessary to carry out the purposes and provisions of the Act.” This provision establishes statutory authority for the enhanced CHIA regulations in this proposed rule. The more detailed CHIA content requirements that we propose to adopt are prudent measures to ensure that the CHIA is adequate to prevent the approval or renewal of permits that would result in material damage to the hydrologic balance outside the permit area.

Proposed paragraph (a)(1) is substantively identical to existing 30 CFR 780.21(g)(1), with the exception that we propose to clarify that the CHIA must be in writing. We also propose to remove the sentence stating that the regulatory authority may allow the permit applicant to submit data and analyses relevant to the CHIA with the application. This sentence that we propose to delete is unnecessary because it is inherently true, whether stated or not. In addition, proposed paragraph (a)(3) effectively replaces this sentence.

Proposed paragraph (a)(2) would provide that, in preparing the CHIA, the regulatory authority must consider relevant information on file for other mining operations located within the cumulative impact area or in similar watersheds. This provision is intended to ensure that the regulatory authority considers all available information when preparing the CHIA.

Proposed paragraph (a)(3) would provide that the regulatory authority may not approve a permit application until it receives the hydrologic, geologic, and biological information needed to prepare the CHIA, either from other federal and state agencies or from the applicant. This provision is consistent with similar language in the provisos at the end of section 507(b)(11) of SMCRA.[351]

Proposed paragraph (b) would establish detailed content requirements for the CHIA to ensure that the assessment is sufficiently comprehensive to support the finding that the regulatory authority must make under section 510(b)(3) of SMCRA [352] and 30 CFR 773.15(e) regarding whether the operation has been designed to prevent material damage to the hydrologic balance outside the permit area. The new requirements correspond to elements of the proposed definition of “material damage to the hydrologic balance outside the permit area” in 30 CFR 701.5. By requiring the development of permit-specific, numerical material damage criteria, they also would facilitate implementation of the prohibition in section 510(b)(3) of SMCRA and 30 CFR 773.15(e) on approval of a permit application unless the CHIA demonstrates that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

Proposed paragraph (b)(1) would require that the CHIA contain a map of the cumulative impact area. The boundaries of this area may differ for surface water and groundwater, in which case proposed paragraph (b)(1)(i) would require that the map identify and display those differences. Proposed paragraphs (b)(1)(ii) through (iv) would require that the map identify the locations of all previous, current, and anticipated surface and underground mining, the locations of all baseline data collection sites under proposed 30 CFR 780.19, and designated uses of surface water under section 101(a) or 303(c) of the Clean Water Act.

Proposed paragraph (b)(2) would require that the CHIA contain a description of all previous, existing, and anticipated mining within the cumulative impact area, including, at a minimum, the coal seam or seams mined, the extent of mining, and the reclamation status of each operation.Start Printed Page 44502

Proposed paragraph (b)(3) would require that the CHIA contain a description of the baseline hydrologic information collected from the proposed permit and adjacent areas under proposed 30 CFR 780.19. This description would include the quality and quantity of surface water and groundwater and seasonal variations therein; quantitative information about existing usage of surface water and groundwater, as well as information defining the quality of water required for each existing and reasonably foreseeable use of groundwater and surface water and each designated use of surface water under section 101(a) or 303(c) of the Clean Water Act; a description and map of the local and regional groundwater systems; and the biological condition of perennial, intermittent, and ephemeral streams within the proposed permit and adjacent areas. The requirements of proposed paragraph (b)(3) would not apply to the entire cumulative impact area.

Proposed paragraph (b)(4) would require that the CHIA contain a discussion of any potential concerns identified in the PHC determination prepared under proposed 30 CFR 780.20 and how those concerns have been or will be resolved.

Proposed paragraph (b)(5) would require that the CHIA contain a qualitative and quantitative assessment of how all anticipated surface and underground mining may impact water quality in surface water and groundwater in the cumulative impact area, expressed in terms of each baseline parameter identified under 30 CFR 780.19.

Proposed paragraph (b)(6) would require that the CHIA contain criteria defining material damage to the hydrologic balance outside the permit area on a site-specific basis and that these numerical criteria be incorporated into the permit to ensure that they are enforceable. Proposed paragraphs (b)(6)(i) through (iii) would require that the criteria be expressed in numerical terms for each parameter of concern, that they take into consideration the biological requirements of any species listed as threatened or endangered under the Endangered Species Act when those species or designated critical habitat are present within the cumulative impact area, and that they identify the portion of the cumulative impact area to which the criteria apply and the locations at which impacts will be monitored. The regulatory authority may establish different criteria for subareas within the cumulative impact area when appropriate. Water quality standards established under the Clean Water Act or in the NPDES permit for the operation might suffice for some parameters of concern, but NPDES permits do not address cumulative impacts and are not necessarily structured to prevent material damage to the hydrologic balance outside the permit area.

We invite comment on whether the rule also should require that the regulatory authority establish lower corrective action thresholds to identify the point at which the permittee must take action to minimize the potential that adverse trends will continue and ultimately cause material damage to the hydrologic balance outside the permit area. In particular, we are interested in whether corrective action thresholds would be both more effective and more efficient in preventing material damage to the hydrologic balance outside the permit area, as required by SMCRA, and in avoiding designation of streams as impaired under section 303(d) of the Clean Water Act.[353]

Proposed paragraph (b)(7) would require an assessment of how all anticipated surface and underground mining may affect groundwater movement and availability within the cumulative impact area. This information is important in the determination of whether adverse impacts on groundwater would be severe enough to result in material damage to the hydrologic balance outside the permit area.

Proposed paragraph (b)(8) would require an evaluation of whether the CHIA will support a finding that the operation has been designed to prevent material damage to the hydrologic balance outside the permit area, as required by 30 CFR 773.15(e) and section 510(b)(3) of SMCRA.[354] This evaluation would have to contain supporting data and analyses. Proposed paragraph (b)(8) also would require that the CHIA include certain documented determinations as a prerequisite for a finding that the operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

Proposed paragraph (b)(8)(i) would require a determination that, during all phases of mining and reclamation and at all times of the year, variations in streamflow and groundwater availability resulting from the operation, as well as variations in the amount and concentration of parameters of concern in discharges from the operation to groundwater and surface water, would not—

  • Result in conversion of a perennial or intermittent stream to an ephemeral stream or conversion of a perennial stream to an intermittent stream. Conversion of an intermittent stream to a perennial stream or conversion of an ephemeral stream to an intermittent or perennial stream may be acceptable, provided the conversion would not disrupt or preclude any existing, reasonably foreseeable, or designated use of the stream under section 101(a) or 303(c) of the Clean Water Act and would not adversely impact threatened or endangered species or designated critical habitat in violation of the Endangered Species Act. We also are considering replacement of “would not adversely impact threatened or endangered species or designated critical habitat in violation of the Endangered Species Act” with “would not jeopardize the continued existence of threatened or endangered species or result in the destruction or adverse modification of designated critical habitat in violation of the Endangered Species Act.” The second alternative would parallel the language of existing and proposed 30 CFR 816.97(b) and 817.97(b).
  • Result in an exceedance of applicable water quality standards in any stream located outside the permit area.
  • Disrupt or preclude any existing or reasonably foreseeable use of surface water outside the permit area or any designated use of surface water under section 101(a) or 303(c) of the Clean Water Act [355] outside the permit area, except as provided in water supply replacement provisions of proposed 30 CFR 780.22(b) and 816.40.

Proposed paragraph (b)(8)(ii) would require a determination that the operation has been designed to ensure that neither the mining operation nor the final configuration of the reclaimed area will result in changes in the size or frequency of peak flows from precipitation events or thaws that would cause an increase in damage from flooding, when compared with premining conditions.

Proposed paragraph (b)(8)(iii) would require a determination that perennial and intermittent streams located outside the permit area but within the cumulative impact area would continue to have sufficient baseflow and recharge capacity to maintain their premining flow regime both during and after mining and reclamation. In other words, the regulatory authority must find that Start Printed Page 44503perennial stream segments will retain perennial flows and intermittent stream segments will retain intermittent flows during and after mining and reclamation. Conversion of an intermittent stream to a perennial stream or conversion of an ephemeral stream to an intermittent or perennial stream may be acceptable, provided the conversion would not disrupt or preclude any existing, reasonably foreseeable, or designated use of the stream under section 101(a) or 303(c) of the Clean Water Act and would not adversely impact threatened or endangered species or designated critical habitat in violation of the Endangered Species Act. We also are considering replacement of “would not adversely impact threatened or endangered species or designated critical habitat in violation of the Endangered Species Act” with “would not jeopardize the continued existence of threatened or endangered species or result in the destruction or adverse modification of designated critical habitat in violation of the Endangered Species Act.” The second alternative would parallel the language of existing and proposed 30 CFR 816.97(b) and 817.97(b).

Proposed paragraph (b)(8)(iv) would require a determination that the operation has been designed to protect the quantity and quality of water in any aquifer that significantly ensures the prevailing hydrologic balance.

Proposed paragraph (c)(1) would require that the regulatory authority review each application for a significant permit revision to determine whether a new or updated CHIA is needed. This paragraph is similar to existing 30 CFR 780.21(g)(2), except that we propose to add a requirement that the regulatory authority document the review, including the analysis and conclusions, together with the rationale for the conclusions, in writing. In addition, we propose to require this review only for applications for significant permit revisions, not for all applications for any type of permit revisions as under the existing rule. We are not aware of any situation in which a non-significant permit revision application has required an update of the CHIA under the existing rules. Therefore, conducting this review of non-significant permit revision applications is not a meaningful or productive use of regulatory authority resources.

Proposed paragraph (c)(2) would add a requirement that the regulatory authority reevaluate the CHIA during the permit renewal process or every 5 years, whichever is more frequent, to determine whether the CHIA remains accurate and whether the material damage criteria in the CHIA and the permit are adequate to ensure that material damage to the hydrologic balance outside the permit area will not occur. This evaluation must include a review of all water monitoring data from both the operation in question and all coal mining operations within the cumulative impact area. We invite comment on whether this 5-year review frequency for water monitoring data is adequate to detect adverse trends in a timely manner or whether more frequent reviews, such as during midterm permit review, should be required. In addition, we invite comment on whether the permittee also should be required to conduct this review.

Proposed paragraph (c)(3) would require preparation of a new or updated CHIA whenever the regulatory authority finds that one is needed based on the evaluation required by proposed paragraph (c)(2). Proposed paragraphs (c)(2) and (c)(3) are logical extensions of the finding that the regulatory authority must make under section 510(b)(3) of SMCRA [356] and 30 CFR 773.15(e) regarding whether the operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

10. Section 780.22: What information must I include in the hydrologic reclamation plan and what information must I provide on alternative water resources?

Proposed paragraph (a) would be substantively identical to the hydrologic reclamation plan requirements in existing 30 CFR 780.21(h), except as discussed below. Proposed paragraph (a)(2)(v) would replace the existing requirement for measures to avoid acid or toxic drainage with a requirement for preventive and remedial measures to avoid acid or toxic discharges to surface water and to avoid (or, if avoidance is not possible, minimize) degradation of groundwater. The new language reflects the nature of the surface mining process, which typically converts solid rock to highly-fragmented spoil, thus altering groundwater composition and quality.

Proposed paragraph (a)(3) would require that the hydrologic reclamation plan address the impacts of any transfers of water among active and abandoned mines within the proposed permit and adjacent areas. The transfer of water between mines, whether intentional through direct connections or unintentional through leakage, can have substantial impacts on the availability, quality, and distribution of groundwater and surface water in the permit and adjacent areas, which in turn may have a substantial impact on users of groundwater and surface water. For example, a reduction in baseflow of a stream would reduce the assimilative capacity of the stream. In addition, increases in the hydrostatic head elevations of underground mine pools might cause blowouts or landslides or have other adverse impacts on land and water resources.

Proposed paragraph (a)(4) would add a requirement for a description of the steps that the permittee will take during mining and reclamation through final bond release to protect and enhance aquatic life and related environmental values to the extent possible using the best technology currently available. This requirement would more completely implement section 515(b)(24) of SMCRA,[357] which provides that surface coal mining and reclamation operations must use the best technology currently available to minimize disturbances and adverse impacts to fish, wildlife, and related environmental values to the extent possible and enhance those resources where practicable.

Proposed paragraph (b) would replace and expand the alternative water source information required by existing 30 CFR 780.21(e) if the proposed operation may result in contamination, diminution, or interruption of a protected water supply. Proposed paragraph (b)(1) would require that the applicant identify alternative water sources that are available, feasible to develop, and suitable in quality and sufficient in quantity to support premining uses and approved postmining land uses. Proposed paragraph (b)(2) would prohibit any mining that would contaminate, diminish, or interrupt a protected water supply if the applicant is unable to identify any suitable alternative water sources. These provisions are intended to prevent situations in which high-quality water from a spring is replaced with well water that requires substantial treatment.

When a suitable alternative water source is available, proposed paragraph (b)(3) would require that the permittee develop and install the alternative water supply on a permanent basis before adversely affecting an existing water supply protected under proposed 30 CFR 816.40. This provision would not apply if the permittee demonstrates, and the regulatory authority finds, that the proposed operation also would adversely affect the replacement supply. Start Printed Page 44504In that case, the proposed rule would require that the permittee provide a temporary replacement water supply until it is safe to install the permanent replacement water supply.

Finally, proposed paragraph (b)(4) would require a description of how the applicant would provide both temporary and permanent replacements for any unexpected losses of protected water supplies in accordance with the timeframes and other requirements of proposed 30 CFR 816.40.

Proposed paragraph (b) is intended to more completely implement the water supply replacement requirements of sections 717(b) and 720(a)(2) of SMCRA.[358]

11. Section 780.23: What information must I include in plans for the monitoring of groundwater, surface water, and the biological condition of streams during and after mining?

Paragraphs (b)(1) and (2) of section 517 of SMCRA [359] provide authority for the adoption of regulations establishing monitoring requirements for surface coal mining and reclamation operations. Among other things, paragraph (b)(1) provides that “the regulatory authority shall require any permittee to . . . install, use, and maintain any necessary monitoring equipment or methods [and] evaluate results in accordance with such methods, at such locations, intervals, and in such manner as a regulatory authority shall prescribe.” Paragraph (b)(2) includes the following additional provisions:

[F]or those surface coal mining and reclamation operations which remove or disturb strata that serve as aquifers which significantly insure the hydrologic balance of water use either on or off the mining site, the regulatory authority shall specify those—

(A) monitoring sites to record the quantity and quality of surface drainage above and below the minesite as well as in the potential zone of influence;

(B) monitoring sites to record level, amount, and samples of ground water and aquifers potentially affected by the mining and also directly below the lowermost (deepest) coal seam to be mined;

(C) records of well logs and borehole data to be maintained; and

(D) monitoring sites to record precipitation.

The monitoring data collection and analysis required by this section shall be conducted according to standards and procedures set forth by the regulatory authority in order to assure their reliability and validity.

Proposed 30 CFR 780.23 would establish more detailed requirements for groundwater and surface-water monitoring plans than those that appear in existing 30 CFR 780.21(i) and (j). Thus, they would more completely implement the statutory provisions described and quoted above. Furthermore, our proposed enhanced monitoring requirements are intended to ensure that, as required by section 515(b)(24) of SMCRA,[360] surface coal mining and reclamation operations are conducted so as to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible using the best technology currently available.

Finally, our proposed enhanced monitoring requirements would be consistent with both the more comprehensive baseline information that we propose to require in 30 CFR 780.19 and the definition of “material damage to the hydrologic balance outside the permit area” that we propose to adopt in 30 CFR 701.5. Comprehensive baseline information and monitoring are critical to evaluating the impact of the mining operation on the hydrologic balance, which in turn is essential to preventing the occurrence of material damage to the hydrologic balance outside the permit area, consistent with section 510(b)(3) of SMCRA.[361]

Proposed Paragraphs (a): Groundwater Monitoring Plan

Proposed paragraph (a) would include the groundwater monitoring plan requirements in existing 30 CFR 780.21(i). We propose to revise those requirements by adding more specific minimum requirements for the groundwater monitoring plan to ensure that the plan is adequate to evaluate the impacts of the mining operation on groundwater in the proposed permit and adjacent areas and to identify adverse trends in sufficient time to initiate corrective action to prevent the operation from causing material damage to the hydrologic balance outside the permit area. The following discussion highlights the more significant elements of proposed paragraph (a).

Proposed paragraph (a)(1)(iii)(A) would require that each groundwater monitoring plan include monitoring wells (or equivalent monitoring points with direct groundwater discharges, such as springs) located upgradient and downgradient of the proposed operation to facilitate identification of potential mining-related changes in groundwater quantity or quality and to assist in an evaluation of whether any downgradient changes are the result of the mining and reclamation activities. The proposed rule would require separate wells for each aquifer above or immediately below the lowest coal seam to be mined. This provision would ensure identification of impacts on each aquifer, consistent with section 517(b)(2)(B) of SMCRA, which requires monitoring of “aquifers potentially affected by the mining and also directly below the lowermost (deepest) coal seam to be mined.”

Proposed paragraph (a)(1)(iii)(B) would require placement of monitoring wells in backfilled portions of the permit area after backfilling and grading of all or a portion of the permit area is completed. The purpose of these wells is to identify how infiltration through the spoil may alter groundwater levels and quality. The proposed rule would allow the regulatory authority to waive placement of monitoring wells in the backfilled area if it finds that wells in the backfilled area are not necessary to determine or predict the future impact of the mining operation on groundwater quality.

Finally, to monitor impacts on underground mine pools, proposed paragraph (a)(1)(iii)(C) would require placement of monitoring wells in any existing underground mine workings that would have a direct hydrological connection to the proposed operation. These mine pools may serve as municipal, industrial, or residential water supplies. In addition, sudden, unplanned releases of the water in those mine pools can result in flooding damage or adverse impacts on receiving streams.

Proposed paragraph (a)(1)(iv) would require that the plan describe how the monitoring data will be used to determine the impacts of the operation upon the hydrologic balance and the biological condition of perennial and intermittent streams within the permit and adjacent areas, as well as to prevent material damage to the hydrologic balance outside the permit area.

Proposed paragraph (a)(1)(v) would require that the plan describe how monitoring practices will comply with the sampling, analysis, and reporting requirements of proposed 30 CFR 777.13(a) and (b) to ensure that samples are collected and analyzed in a legally and scientifically valid manner. Proposed paragraph (a)(1)(v) is consistent with the requirement in the text after section 517(b)(2)(D) of SMCRA [362] that the regulatory authority set forth standards and procedures for monitoring data collection and analysis Start Printed Page 44505to assure the reliability and validity of the data.

Proposed paragraph (a)(2)(i) would require that the groundwater monitoring plan provide for the monitoring of parameters that could be affected by the proposed operation if those parameters relate to the findings and predictions in the PHC determination prepared under 30 CFR 780.20, the biological condition of perennial and intermittent streams and other surface-water bodies that receive discharges from groundwater within the proposed permit and adjacent areas, the suitability of the groundwater for existing and reasonably foreseeable uses, and the suitability of the groundwater to support the premining and postmining land uses. Monitoring of these parameters would assist the permittee and regulatory authority in preventing material damage to the hydrologic balance outside the permit area and in determining compliance with the water supply protection and postmining land use requirements of SMCRA and its implementing regulations.

Proposed paragraph (a)(2)(ii) would require quarterly monitoring of 14 specific parameters, including, among others, selenium and the minimum water-quality parameters required by existing 30 CFR 780.21(i)(1) (pH, total iron, total manganese, and total dissolved solids or specific conductance). As summarized in Part II of this preamble, selenium can have deleterious effects upon fish and human health. In addition, this proposed paragraph would require quarterly monitoring of major anions (including, at a minimum, bicarbonate, chloride, and sulfate), major cations (including, at a minimum, calcium, magnesium, potassium, and sodium), and the cation-anion balance. As summarized in Part II of this preamble, these anions and cations form salts that can alter water chemistry in a manner that sometimes has a substantial adverse impact on aquatic life. With respect to water quantity, proposed paragraph (a)(2)(ii) would require quarterly measurement of water levels, discharge rates, or yield rates. Existing 30 CFR 780.21(i) only requires monitoring of water levels, which may not be sufficient to fully evaluate groundwater quantity and availability in all cases. Finally, proposed paragraph (a)(2)(ii) would require quarterly monitoring of certain metals (if present in discharges from prior underground mines) and any other parameters of local significance, as determined by the regulatory authority based upon the information collected and the analyses conducted under proposed 30 CFR 780.19 through 780.21.

Proposed paragraph (a)(3) would require that the regulatory authority reconsider the adequacy of the groundwater monitoring plan at two points during the permit application review process. The first reconsideration would occur after the regulatory authority completes the technical review of the application. At that point, the regulatory authority may require that the permit applicant revise the plan to increase the frequency of monitoring, to require monitoring of additional parameters, or to require monitoring at additional locations, if the additional requirements would contribute to protection of the hydrologic balance. The second reconsideration would occur after preparation of the CHIA under proposed 30 CFR 780.21. At that point, the regulatory authority would be responsible for ensuring that the groundwater monitoring plan requires monitoring of all parameters for which the CHIA establishes material damage criteria; i.e., all parameters of concern. These reconsiderations are intended to ensure that the monitoring plans are designed to provide sufficiently comprehensive monitoring data to enable both the permittee and the regulatory authority to identify any adverse impacts on groundwater in time to take corrective action to prevent material damage to the hydrologic balance outside the permit area.

Finally, proposed paragraph (a)(4) would modify the provision in existing 30 CFR 780.21(i)(2) that authorizes a groundwater-monitoring exception for any water-bearing stratum that does not serve as an aquifer that significantly ensures the hydrologic balance within the cumulative impact area. Specifically, proposed paragraph (a)(4) would allow a groundwater-monitoring exception for a water-bearing stratum that does not serve as an aquifer that significantly ensures the hydrologic balance within the cumulative impact area only if that stratum has no existing or foreseeable use for agricultural or other human purposes or for fish and wildlife purposes. The addition of this requirement would more fully implement the environmental protection purposes set forth in sections 102(a) and (d) of SMCRA.[363] We recognize that the proposed new criterion does not appear in section 517(b)(2) of SMCRA.[364] However, addition of the new criterion is appropriate because use of water for agricultural or fish and wildlife purposes impacts land use capability and productivity and would assist in the implementation of the postmining land use requirements of section 515(b)(2) of SMCRA [365] and the fish and wildlife protection and enhancement requirements of section 515(b)(24) of SMCRA.[366]

Proposed Paragraph (b): Surface-Water Monitoring Plan

Proposed paragraph (b) would include the surface-water monitoring plan requirements in existing 30 CFR 780.21(j). We propose to revise those requirements by adding more specific minimum requirements for the surface-water monitoring plan to ensure that the plan is adequate to evaluate the impacts of the mining operation on streams and other surface-water bodies in the proposed permit and adjacent areas and to identify adverse trends in sufficient time to initiate corrective action to prevent the operation from causing material damage to the hydrologic balance outside the permit area. The following discussion highlights the more significant elements of proposed paragraph (b).

Proposed paragraph (b)(1)(ii) would require on-site measurement of precipitation amounts at specified locations within the permit area, using self-recording devices. Measurement of precipitation amounts at the minesite is an important component of the surface water runoff control plan required under proposed 30 CFR 780.29. We propose to require that precipitation measurements continue through Phase II bond release under proposed 30 CFR 800.42(c) or for any longer period specified by the regulatory authority. Phase II bond release is the point at which revegetation has been established.

Proposed paragraph (b)(1)(iv) would require that, at a minimum, each surface-water monitoring plan include monitoring of point-source discharges from the proposed operation as well as monitoring points located upgradient and downgradient of the proposed permit area in each perennial and intermittent stream within the proposed permit and adjacent areas to facilitate identification of potential mining-related changes in surface-water quantity or quality and to assist in an evaluation of whether any downgradient changes are the result of the mining and reclamation activities. This provision would be consistent with section 517(b)(2)(A) of SMCRA, which requires Start Printed Page 44506that the regulatory authority specify “monitoring sites to record the quantity and quality of surface drainage above and below the minesite as well as in the potential zone of influence.” Point-source discharges would be located within the potential zone of influence.

Proposed paragraph (b)(1)(v) would require that the plan describe how the monitoring data will be used to determine the impacts of the operation upon the hydrologic balance and the biological condition of perennial and intermittent streams within the permit and adjacent areas, as well as to prevent material damage to the hydrologic balance outside the permit area.

Proposed paragraph (b)(1)(vi) would require that the plan describe how surface-water monitoring practices will comply with the sampling, analysis, and reporting requirements of proposed 30 CFR 777.13(a) and (b) to ensure that samples are collected and analyzed in a legally and scientifically valid manner. Proposed paragraph (b)(1)(vi) is consistent with the requirement in the text after section 517(b)(2)(D) of SMCRA that the regulatory authority set forth standards and procedures for monitoring data collection and analysis to assure the reliability and validity of the data.

Proposed paragraph (b)(2)(i) would require that the surface-water monitoring plan provide for the monitoring of parameters that could be affected by the proposed operation if those parameters relate to applicable effluent limitation guidelines under 40 CFR part 434, the findings and predictions in the PHC determination prepared under 30 CFR 780.20, the surface-water runoff control plan prepared under proposed 30 CFR 780.29, the biological condition of perennial and intermittent streams and other surface-water bodies within the proposed permit and adjacent areas, the suitability of the surface water for existing and reasonably foreseeable uses as well as designated uses under section 101(a) or 303(c) of the Clean Water Act, and the suitability of the surface water to support the premining and postmining land uses. Monitoring of these parameters would assist the permittee and regulatory authority in preventing material damage to the hydrologic balance outside the permit area and in determining compliance with the water supply protection and postmining land use requirements of SMCRA and its implementing regulations.

Proposed paragraph (b)(2)(ii) would require quarterly monitoring of 15 specific parameters, including, among others, selenium and the minimum water-quality parameters required by existing 30 CFR 780.21(j)(2)(i) (pH, total iron, total manganese, total suspended solids, and total dissolved solids or specific conductance). As summarized in Part II of this preamble, selenium can have deleterious effects upon fish and human health. In addition, this proposed paragraph would require quarterly monitoring of major anions (including, at a minimum, bicarbonate, chloride, and sulfate), major cations (including, at a minimum, calcium, magnesium, potassium, and sodium), and the cation-anion balance. As summarized in Part II of this preamble, these anions and cations form salts that can alter water chemistry in a manner that sometimes has a significant adverse impact on aquatic life. With respect to water quantity, proposed paragraphs (b)(2)(ii)(A) and (iii)(B), like existing 30 CFR 780.21(j)(2)(i), would require quarterly measurement of flow rates. We propose to require use of generally-accepted professional flow measurement techniques, rather than subjective visual observations that involve no actual measurements and that will vary from observer to observer. Finally, proposed paragraph (b)(2)(ii) would require quarterly monitoring of certain metals (if present in discharges from prior underground mines) and any other parameters of local significance, as determined by the regulatory authority based upon the information collected and the analyses conducted under proposed 30 CFR 780.19 through 780.21.

Proposed paragraph (b)(2)(iii) would not require that point-source discharges be monitored for the parameters listed in proposed paragraph (b)(2)(ii). Instead, as in existing 30 CFR 780.21(j)(2)(ii), the proposed rule would defer to the National Pollutant Discharge Elimination System permitting authority's determinations of which parameters must be monitored. We invite comment on whether, in the final rule, we should require monitoring of some or all of the parameters listed in proposed paragraph (b)(2)(ii) in point-source discharges to establish a more definitive connection between discharges from the minesite and trends observed at downgradient monitoring locations.

To promote coordination of permitting and monitoring requirements under SMCRA and the Clean Water Act, proposed paragraph (b)(2)(iv) would require that the surface-water monitoring plan be revised to include any site-specific monitoring requirements imposed by the National Pollutant Discharge Elimination System permitting authority or the agency responsible for administration of section 404 of the Clean Water Act.[367] This provision recognizes that this information may not be available at the time of application for the SMCRA permit and, thus, may need to be added later via a permit revision.

Proposed paragraph (b)(3) would require that the regulatory authority reconsider the adequacy of the surface-water monitoring plan at two points during the permit application review process. The first reconsideration would occur after the regulatory authority completes the technical review of the application. At that point, the regulatory authority may require that the permit applicant revise the plan to increase the frequency of monitoring, to require monitoring of additional parameters, or to require monitoring at additional locations, if the additional requirements would contribute to protection of the hydrologic balance. The second reconsideration would occur after preparation of the CHIA under proposed 30 CFR 780.21. At that point, the regulatory authority would be responsible for ensuring that the surface-water monitoring plan requires monitoring of all parameters for which the CHIA establishes material damage criteria; i.e., all parameters of concern. These reconsiderations are intended to ensure that the monitoring plans are designed to provide sufficiently comprehensive monitoring data to enable both the permittee and the regulatory authority to identify any adverse impacts on surface water in time to take corrective action to prevent material damage to the hydrologic balance outside the permit area.

Proposed Paragraph (c): Biological Condition Monitoring Plan

Proposed paragraph (c)(1) would require that each permit application include a plan for monitoring the biological condition of perennial and intermittent streams within the proposed permit area and the adjacent area. The proposed rule would require that the plan be adequate to evaluate the impacts of the mining operation on the biological condition of those streams and to determine in a timely manner whether corrective action is needed to prevent the operation from causing material damage to the hydrologic balance outside the permit area.

Proposed paragraph (c)(2)(i) would specify that the plan must require use of a multimetric bioassessment protocol that meets the requirements of proposed 30 CFR 780.19(e)(2). In essence, this provision requires use of a multimetric Start Printed Page 44507bioassessment protocol approved by the state or tribal agency responsible for preparing the water quality inventory report required under section 305(b) of the Clean Water Act [368] or other scientifically-valid, multimetric bioassessment protocols used by agencies responsible for implementing the Clean Water Act. The bioassessment protocol must be based upon the presence or absence, population levels, and biomass of an appropriate array of aquatic organisms, including benthic macroinvertebrates. It must require identification of macroinvertebrates to the genus level because a bioassessment protocol that requires identification of aquatic organisms only to the family level may not be capable of differentiating between pollution-tolerant and pollution-intolerant genera within the same family, while a bioassessment protocol that identifies organisms to the species level may not be consistent with available indices of biological integrity. Finally, the protocol must result in the calculation of index values for both habitat and macroinvertebrates and provide a correlation of index values to the capability of the stream to support designated uses under section 101(a) or 303(c) of the Clean Water Act.

Proposed paragraph (c)(2)(ii) would require that the plan identify biological condition monitoring locations in each perennial and intermittent stream within the proposed permit and adjacent areas. Proposed paragraph (c)(2)(iii) would require that the plan establish a sampling frequency that must be no less than annual, but not so frequent as to unnecessarily deplete the populations of the species being monitored. Proposed paragraph (c)(2)(iv) would provide that the plan must require submission of biological condition monitoring data to the regulatory authority on an annual basis.

Proposed paragraph (c)(3) would require that the regulatory authority reconsider the adequacy of the biological condition monitoring plan after completing preparation of the CHIA under proposed 30 CFR 780.21. The proposed rule would require that, if necessary, the regulatory authority issue an order to the applicant to revise the plan to correct any deficiencies.

The monitoring requirements in proposed paragraph (c) would assist in more completely implementing section 515(b)(24) of SMCRA,[369] which requires that surface coal mining and reclamation operations be conducted so as to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible using the best technology currently available. Proposed paragraph (c) also would provide a means of implementing the definition of “material damage to the hydrologic balance outside the permit area” that we propose to adopt in 30 CFR 701.5, which relies in part upon designated uses of surface water under section 101(a) or section 303(c) of the Clean Water Act. The biological condition of perennial and intermittent streams and other surface waters determines whether those waters are capable of attaining their designated uses.

Proposed Paragraph (d): Exceptions

Proposed paragraph (d)(1) would allow potential permit applicants to request that the regulatory authority modify the groundwater and surface-water monitoring plan requirements of proposed paragraphs (b) and (c) and modify or waive the biological condition monitoring plan requirements of proposed paragraph (c) if the proposed permit area includes only lands eligible for remining. The proposed rule would allow the regulatory authority to approve the request if it determines that an alternative monitoring plan will be adequate to monitor the impacts of the proposed operation on groundwater and surface water, based upon an evaluation of the quality of groundwater and surface water and the biological condition of the receiving stream at the time of application. The exception for remining operations would provide an incentive to mine and reclaim previously mined areas without the use of public funds. Streams in the vicinity of previously mined areas also are likely to be of lower quality than streams in unmined watersheds because of the adverse impacts of previous mining.

Proposed paragraph (d)(2) would allow permit applicants to request that the regulatory authority waive the biological condition monitoring plan requirements of proposed paragraph (c) if the applicant demonstrates, and the regulatory authority finds in writing, that the proposed operation will not mine through or bury a perennial or intermittent stream; create a point-source discharge to any perennial, intermittent, or ephemeral stream; or modify the baseflow of any perennial or intermittent stream. If the applicant meets all requirements except the one concerning a point-source discharge, the proposed rule would allow the regulatory authority to approve limiting the biological condition monitoring plan requirements to only the stream that will receive the point-source discharge.

Proposed Paragraph (e): Coordination With Clean Water Act Agencies

Proposed paragraph (e) would require that SMCRA regulatory authorities consult with the agencies responsible for issuing permits, authorizations, and certifications under the Clean Water Act and make best efforts to minimize differences in monitoring locations and reporting requirements and to share data to the extent practicable and consistent with each agency's mission, statutory requirements, and implementing regulations. Coordination could reduce both costs and the overall regulatory impact to the industry, as well as improving regulatory efficiency. In addition, the proposed requirement would be consistent with the intent of the regulatory coordination provisions of section 713 of SMCRA.[370]

12. Section 780.24: What requirements apply to the postmining land use?

Proposed 30 CFR 780.24 would consolidate the requirements for approval of postmining land uses that appear in existing 30 CFR 780.23(b), 816.133(b), and 816.133(c). We also propose to add a surface mining counterpart to the interpretive rules concerning postmining land use changes in existing 30 CFR 784.200(a) and 817.200(d)(1). In addition, we propose to revise existing 30 CFR 780.24 to improve consistency with SMCRA and its legislative history and to more completely implement the environmental protection purposes of SMCRA, including the fish and wildlife protection and enhancement requirements of section 515(b)(24) of SMCRA,[371] while remaining mindful of the requirement in section 508(a)(3) of SMCRA [372] to consider the comments of the surface owner and state and local governments and agencies. Our proposed revisions to the existing requirements also are consistent with section 515(b)(23) of SMCRA,[373] which provides that surface coal mining and reclamation operations must “meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this Act, taking into consideration the physical, climatological, and other characteristics of the site.”

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Proposed Paragraph (a): What postmining land use information must my application contain?

Section 515(b)(2) of SMCRA [374] requires that surface coal mining and reclamation operations “restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is a reasonable likelihood.” Section 508(a)(3) of SMCRA [375] requires that each reclamation plan include a statement of “the use which is proposed to be made of the land following reclamation, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses.” Combining these two statutory provisions, proposed paragraph (a)(1) would require that each permit application include both a description and a map of the proposed postmining land use or uses and a discussion of the utility and capability of the reclaimed land to support a variety of other uses, including the uses that the land was capable of supporting before any mining, as identified in the narrative analysis required under 30 CFR 779.22.

Proposed paragraph (a)(2) would require that the land use or uses be described in terms of the categories listed in our definition of “land use” in 30 CFR 701.5, which would assist the regulatory authority in determining compliance with provisions of our regulations that are tied to land use; e.g., alternative postmining land uses, revegetation standards, and exceptions from approximate original contour restoration requirements, and provide a baseline for application of these provisions on a national basis.

Proposed paragraph (a)(3) would require that the application explain how the proposed postmining land use is consistent with existing state and local land use policies and plans. Addition of this requirement would be consistent with section 508(a)(3) of SMCRA,[376] which requires that the reclamation plan include an explanation of the relationship of the proposed postmining land use to existing land use policies and plans. That section of SMCRA also requires that the application include comments from state and local governments or agencies that would have to approve or authorize the proposed land use. Furthermore, section 515(b)(2) of SMCRA [377] prohibits the approval of alternative postmining land uses that are “inconsistent with applicable land use policies and plans.” Therefore, it would be reasonable to conclude that Congress intended for all postmining land uses to be consistent with state and local land use policies and plans, especially since regulation of land use has traditionally been the province of state and local governments.

Proposed paragraph (a)(4) is substantively identical to the corresponding existing rule at 30 CFR 780.23(c). Proposed paragraph (a)(5) is substantively identical to the corresponding existing rule at 30 CFR 780.23(b)(1) with the exception that the proposed rule clarifies that the permit applicant must identify any support facilities (not just activities as in the existing rule) needed to achieve the postmining land use. (Support facilities are equipment repair areas, mine offices, parking lots, and other surface areas upon which are sited structures, facilities, or other property or material resulting from or incident to the activities listed in paragraph (a) of the definition of “surface coal mining operations” in 30 CFR 700.5.) The regulatory authority needs this information when evaluating whether the proposed postmining land use can be achieved and in deciding whether to allow mining-related structures to be retained as part of the postmining land use.

Proposed paragraph (a)(6)(i) would specify that the application must provide the demonstration required under proposed paragraph (b)(1) if the applicant proposes to restore the proposed permit area or a portion thereof to a condition capable of supporting a higher or better use or uses rather than to a condition capable of supporting the use or uses that the land supported before any mining. This provision is substantively identical to existing 30 CFR 780.23(b)(2) except as discussed in the preamble to proposed paragraph (b) below.

Proposed paragraph (a)(6)(ii) would require that an applicant requesting approval of a higher or better alternative postmining land use disclose any monetary compensation, item of value, or other consideration offered to the landowner by the applicant or the applicant's agent in exchange for the landowner's agreement to a postmining land use that differs from the premining use. Adoption of this provision is supported by section 515(b)(2) of SMCRA, which requires that surface coal mining and reclamation operations—

restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is reasonable likelihood, so long as such use or uses do not present any actual or probably hazard to public health or safety or pose any actual or probable threat of water diminution or pollution, and the permit applicants' declared proposed land use following reclamation is not deemed to be impractical or unreasonable, inconsistent with applicable land use policies and plans, involves unreasonable delay in implementation, or is violative of Federal, State, or local law.

Disclosure of whether a landowner has been provided with or is reasonably expected to be provided with compensation or other consideration for any postmining land use changes would allow the regulatory authority to better understand whether the proposed postmining land use change is one that the landowner genuinely desires on its own merits and is reasonably likely to be achieved, or whether the landowner agreed to the land use change for short-term financial gain or other reasons. This type of short-term land use decision-making is contrary to the broader purposes identified in SMCRA, such as “protect[ing] society and the environment from the adverse effects of surface mining coal operations” in section 102(a) and assuring that “operations are conducted as to protect the environment” in section 102(d).

Proposed Paragraph (b): What requirements apply to the approval of alternative postmining land uses?

Existing 30 CFR 780.23(b)(2) provides that the application must include all materials needed for approval of an alternative postmining land use under 30 CFR 816.133 if the proposed postmining land use differs from the premining use. Existing 30 CFR 816.133(b) further provides that the “premining uses of land to which the postmining land use is compared shall be those uses which the land previously supported, if the land has not been previously mined and has been properly managed.” In new section 780.24, we propose to require compliance with the alternative postmining land use approval requirements only when the applicant or permittee proposes to restore the land to a condition capable of supporting higher or better uses (a term that we define in 30 CFR 701.5) rather than to a condition capable of supporting the uses that it could support before any mining. The proposed language better tracks the underlying statutory provision in section 515(b)(2) of SMCRA,[378] as quoted above. In addition, it is consistent with the legislative history of section 508(a) of SMCRA: [379]

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The description [of premining land use capability] is to serve as a benchmark against which the adequacy of reclamation and the degradation resulting from the proposed mining may be measured. It is important that the potential utility which the land had for a variety of uses be the benchmark rather than any single, possibly low value, use which by circumstances may have existed at the time mining began.[380]

By requiring approval only when the change is to a higher or better use, our proposed rule also would avoid unnecessary paperwork on the part of permit applicants and conserve often-scarce regulatory authority resources.

We propose to delete the provision in existing 30 CFR 816.133(b) requiring that the land be properly managed before the premining land use may be compared with the proposed alternative postmining land use. There is no statutory counterpart to this provision of the existing rule, nor is it supported by the legislative history of SMCRA. Furthermore, the criteria for approval of proposed alternative postmining land uses in existing 30 CFR 816.133(c) bear no relationship to whether the land was properly managed before mining. In addition, proper management is a subjective determination. To the extent that this provision could be construed as requiring that the regulatory authority reject a proposed higher or better postmining land use that involves less intensive management than the premining use, the existing rule is inconsistent with the preamble to our definition of “land use” in 30 CFR 701.5, which states that the land use categories in the definition are not hierarchical.[381] Consistent with that statement, the same rulemaking defined “higher or better uses” as meaning “postmining land uses that have a higher economic value or nonmonetary benefit to the landowner or the community than the premining land uses.” We are not proposing any changes to that definition. Therefore, the provision in existing 30 CFR 816.133(b) requiring that the land be properly managed before the premining land use may be compared with the proposed alternative postmining land use has no statutory basis and, in any case, is not feasible.

Proposed paragraph (b) combines existing 30 CFR 780.23(b)(2), which requires that the permit application include all materials needed for approval of an alternative postmining land use under 30 CFR 816.133, with the alternative postmining land use approval criteria of 30 CFR 816.133(c). Proposed paragraph (b)(1) sets forth permit application requirements, while proposed paragraph (b)(2) contains requirements applicable to the regulatory authority's decision-making process. In essence, proposed paragraph (b)(1), like existing 30 CFR 780.23(b)(2), requires that the permit applicant submit a demonstration that the request for an alternative postmining land use meets the criteria for approval, while proposed paragraph (b)(2), like existing 30 CFR 816.133(c), specifies when the regulatory authority may approve a request for an alternative postmining land use.

Proposed paragraph (b)(1) would retain the criteria in the corresponding existing rules at 30 CFR 816.133(c) for approving alternative postmining land uses, while requiring that the permit applicant demonstrate compliance with both those criteria and several new criteria intended to promote environmental protection and restoration of fish and wildlife habitat consistent with section 515(b)(24) of SMCRA [382] and the purposes in paragraphs (a), (d), and (f) of section 102 of SMCRA.[383] Addition of the new criteria also would be consistent with section 515(b)(23) of SMCRA,[384] which requires that surface coal mining and reclamation operations “meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this Act, taking into consideration the physical, climatological, and other characteristics of the site.”

As previously stated, proposed paragraph (b)(1)(i) would retain the provision in the corresponding existing rules at 30 CFR 816.133(c)(1) that there must be a reasonable likelihood of achievement of the proposed higher or better alternative postmining land use. However, we propose to expand upon this requirement by adding language that would require the applicant to document that a reasonable likelihood of achieving the higher or better use exists through submission of, for example, real estate and construction contracts, plans for installation of any necessary infrastructure, procurement of any necessary zoning approvals, landowner commitments, economic forecasts, and studies by land use planning agencies, as applicable. The additional language would flesh out the requirement in section 515(b)(2) of SMCRA [385] that there be a reasonable likelihood of achievement of the proposed land use. In the past, approved alternative postmining land uses have not been implemented on some reclaimed minesites, including some sites for which the regulatory authority approved a variance from approximate original contour restoration requirements for the purpose of achieving a particular alternative postmining land use. Our proposed rule changes concerning the reasonable likelihood of achievement of the alternative postmining land use are intended to prevent recurrences of situations in which the regulatory authority approves an alternative postmining land use that has little chance of being implemented in the reasonably foreseeable future. The proposed rule changes thus would improve compliance with the conditions for approval of higher or better uses under section 515(b)(2) of SMCRA [386] and the approximate original contour restoration requirements of section 515(b)(3) of SMCRA.[387]

We propose to add paragraphs (b)(1)(iii)(E) through (G) to better implement the environmental protection purposes in paragraphs (a), (d), and (f) of section 102 of SMCRA [388] and the prohibition in section 510(b)(3) of SMCRA [389] on the approval of any permit application unless the regulatory authority finds that the operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Specifically, these proposed paragraphs would require that the applicant for an alternative postmining land use demonstrate that the proposed use would not—

  • Result in changes in the size or frequency of peak flows from the reclaimed area to the extent that the changes would cause an increase in damage from flooding compared to the conditions that would exist if the land were restored to a condition capable of supporting the uses that it was capable of supporting before any mining.
  • Cause the total volume of flow from the reclaimed area, during every season of the year, to vary in a way that would preclude any existing or reasonably foreseeable use of surface water or groundwater or any designated use of surface water under section 101(a) or 303(c) of the Clean Water Act.[390]
  • Cause a change in the temperature or chemical composition of the water Start Printed Page 44510that would preclude any existing or reasonably foreseeable use of surface water or any designated use of surface water under section 101(a) or 303(c) of the Clean Water Act.[391]

Proposed paragraph (b)(2) would allow the regulatory authority to approve a request for an alternative postmining land use if it first consults with the landowner or the land management agency having jurisdiction over the lands to which the use would apply and finds in writing that the applicant has made the demonstration required under proposed paragraph (b)(1). These proposed provisions are substantively identical to the corresponding existing rules at 30 CFR 816.133(c), with the exception of the proposed requirement that the finding be in writing and the addition of the new and modified criteria in paragraph (b)(1) as discussed above.

Proposed Paragraph (c): What requirements apply to permit revision applications that propose to change the postmining land use?

Proposed paragraph (c) would provide that, consistent with the decision in PSMRL I, Round II,[392] permittees may use the permit revision process to change the postmining land use after permit issuance. The proposed rule would specify that the application for a permit revision must be processed as a significant revision if the permittee proposes to restore the land to a condition capable of supporting higher or better uses rather than to a condition capable of supporting the uses that it was capable of supporting before any mining.

Proposed paragraph (c) would provide a surface mining counterpart to the interpretive rules for underground mines at 30 CFR 784.200 and 817.200(d)(1), which specify that the requirements for approval of an alternative postmining land use may be met via the permit revision process rather than as part of the original permit application. We do not now interpret our existing surface mining rules as prohibiting permittees from submitting permit revision applications to change the postmining land use after permit issuance, nor have we interpreted those rules as doing so in the past. Therefore, the only effect of proposed paragraph (c) would be to require that a proposed change to a higher or better postmining land use be processed as a significant revision. As provided in 30 CFR 774.13(a)(2), an application for a significant permit revision must comply with the public notice and public participation requirements that apply to an application for a new permit.

Unlike existing 30 CFR 784.200 and 817.200(d)(1), which classify any change in postmining land use as a significant permit revision, we propose to apply this requirement only to a proposed change to a higher or better use. A change from one postmining land use that the land was capable of supporting prior to mining to another postmining land use that the land was capable of supporting prior to mining would no longer require approval as an alternative postmining land use, nor would a request for such a change need to be processed as a significant permit revision.

Our proposed rule would improve consistency with section 515(b)(2) of SMCRA,[393] which requires that surface coal mining and reclamation operations “restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is a reasonable likelihood.” The statutory provision distinguishes only between uses that the land was capable of supporting before mining and higher or better uses; i.e., it establishes criteria for approval of higher or better uses, but no criteria for approval of any of the uses that the land was capable of supporting before mining.

Proposed Paragraph (d): What restrictions apply to the retention of mining-related structures?

Proposed paragraph (d) would establish new requirements pertinent to the retention of mining-related structures in support of the postmining land use. First, the applicant or permittee would have to demonstrate, and the regulatory authority would have to find in writing, that the size and characteristics of mining-related structures (other than roads and impoundments) proposed for retention for potential use as part of the postmining land use are consistent with and proportional to the needs of the postmining land use. For example, retention of an entire coal preparation plant building as a storage facility for an agriculture or silvicultural postmining land use would be disproportionate to the needs for the postmining land use. Second, the amount of bond required for the permit must include the cost of removing the structure and reclaiming the land to a condition capable of supporting the premining uses. Third, the reclamation plan must specify that the permittee will remove any structure not in use as part of the approved postmining land use by the end of the revegetation responsibility period and reclaim the land upon which it was located.

These measures are intended to ensure that only mining-related structures with a bona fide role in supporting the postmining land use are retained. These provisions should minimize the number of mining-related structures that are retained, ostensibly to support the postmining land use, but that are abandoned after final bond release and become safety hazards, attractive nuisances, or a visual blight on the landscape. Thus, proposed paragraph (d) would more fully implement section 102(a) of SMCRA,[394] which provides that one of the purposes of SMCRA is to protect society and the environment from the adverse effects of surface coal mining operations. In addition, section 515(b)(2) of SMCRA [395] allows the approval of higher or better postmining land uses only if they do not present any actual of probable hazard to public health or safety. Logically, the same requirement should apply to retention of mining-related structures that did not exist prior to mining.

Proposed Paragraph (e): What special provisions apply to previously mined areas?

Proposed paragraph (e) would contain the postmining land use requirements for previously mined areas, as that term is defined in 30 CFR 701.5. They do not differ substantively from the corresponding requirements in the last sentence of the existing rules at 30 CFR 816.133(b) except for the proposed addition of a requirement that the revegetation plan require the use of native tree and shrub species for revegetation of all portions of the proposed permit area that were forested at the time of application or that would revert to forest under conditions of natural succession, provided that the planting of trees and shrubs on those lands would not be inconsistent with achievement of the proposed postmining land use. The added requirement would more fully implement section 515(b)(19) of SMCRA,[396] which requires establishment of a diverse, effective, permanent vegetative cover of the same seasonal variety native to the area, and the fish and wildlife protection and Start Printed Page 44511enhancement requirements of section 515(b)(24) of SMCRA.[397]

13. Section 780.25: What information must I provide for siltation structures, impoundments, and refuse piles?

Changes To Conform With the 1983 Revisions to Definitions and Performance Standards

On September 26, 1983 (48 FR 44006), we revised the definitions and performance standards in our regulations relating to coal mine waste to be more consistent with the terminology used by the Mine Safety and Health Administration (MSHA). As we stated at 48 FR 44009, “[i]t is undesirable to have two regulatory programs for the same subject that contain conflicting standards or which use fundamentally different terminology.”

Among other things, we adopted definitions of three new terms in 30 CFR 701.5. Coal mine waste is defined as “coal processing waste and underground development waste.” Impounding structure is defined as “a dam, embankment, or other structure used to impound water, slurry, or other liquid or semi-liquid material.” Refuse pile is defined as “a surface deposit of coal mine waste that does not impound water, slurry, or other liquid or semi-liquid material.” The latter two terms are consistent with the terminology of MSHA's regulations. “Refuse pile” replaces the term “coal processing waste bank” that we used in our previous regulations, while the term “impounding structure” includes, but is not limited to, all structures that our rules previously referred to as coal processing waste dams or embankments.

In concert with the new definition of coal mine waste, we revised our performance standards at 30 CFR 817.71 through 817.74 to eliminate the language that combined underground development waste with excess spoil for purposes of performances standards for underground mines. Because the definition of coal mine waste includes underground development waste, we revised our regulations to specify that the disposal of underground development waste is subject to the performance standards for refuse piles at 30 CFR 817.83 rather than the performance standards for the disposal of excess spoil that applied under the old rules.

However, we did not revise our permitting requirements in a similar fashion at that time. Therefore, we now propose to modify 30 CFR parts 780 and 784 to harmonize the terminology in those rules with our 1983 changes to the definitions and performance standards concerning coal mine waste. In essence, we propose to (1) replace the term “coal processing waste banks” with “refuse piles” and (2) replace the term “coal processing waste dams and embankments” with references to coal mine waste impounding structures.

Proposed Paragraph (a): General Requirements

In addition to the changes in terminology, we propose to revise existing paragraph (a)(1)(iii) to require that the general plan for each proposed siltation structure, impoundment, or refuse pile include the hydrologic and geologic information needed to assess the hydrologic impact of the structure. The existing rule requires submission of only “preliminary” hydrologic and geologic information. We propose to remove the word “preliminary” because preliminary information typically would not be sufficient to assess the hydrologic impact of a proposed structure.

We propose to revise existing paragraph (a)(1)(iv) to require that the general plan for each proposed siltation structure, impoundment, or refuse pile contain a report describing the results of a geotechnical investigation of the potential effect on the structure if subsurface strata should subside as a result of past, current, or future underground mining operations beneath or within the proposed permit and adjacent areas. Geotechnical investigations may include site reconnaissance, drilling, or some combination of these with geophysical investigations (ground-penetrating radar, seismic investigations, etc.). The existing rule requires only a survey describing the potential effect of subsidence resulting from past underground mining operations. A survey alone would provide insufficient information to evaluate the potential effects of subsidence.

Therefore, to promote long-term structural stability, we propose to require a geotechnical investigation instead of a survey and we propose to require consideration of the potential effects of subsidence from past, existing, and future underground mining operations, beneath or within the proposed permit and adjacent areas, not just the potential effects of past underground mining operations within an unspecified area. The design needs to ensure that the structure will be capable of withstanding all potential impacts of any subsidence that may occur during the life of the proposed structure. We propose to add the reference to the proposed permit and adjacent areas to ensure that the investigation includes all underground mining operations that have the potential to cause subsidence that may affect the proposed structure, not just operations within the proposed permit area.

Finally, we propose to specify that the investigation report must identify design and construction measures that would prevent adverse subsidence-related impacts on the structure whenever impacts of that nature are a possibility. In short, proposed paragraph (a)(1)(iv) is intended to protect against failure of the impoundment embankment or other impoundment failures as a result of subsidence. Impoundment stability, especially for large impoundments, is important to protect the public, private and public property, and the environment from the adverse effects of flooding and other consequences of impoundment failure, consistent with the purposes of SMCRA in paragraphs (a) and (d) of section 102 of the Act.[398]

We propose to redesignate existing paragraph (a)(1)(v) as paragraph (a)(1)(vi) and add a new paragraph (a)(1)(v) to require that the general plan for each impoundment include an analysis of the potential for the impoundment to drain into subjacent underground mine workings, together with an analysis of the impacts of such drainage. The Martin County Slurry Spill incident in Martin County, Kentucky on October 11, 2000, illustrates the magnitude of environmental damage that can result when impounded coal refuse slurry breaks through into adjacent underground mine workings that open to the surface. In this case, the mine openings discharged 306 million gallons of slurry into two tributaries of the Tug Fork River (Coldwater Fork and Wolf Creek). The slurry covered nearby residents' yards to a depth of as much as 5 feet, visibly polluted more than 100 miles of waterways, including the Big Sandy and Ohio Rivers, and devastated aquatic life in 70 miles of stream. Six public water intakes were adversely affected and alternative water supplies had to be arranged for 27,000 residents. Cleanup costs were approximately $59 million.[399]

Proposed paragraph (a)(1)(v) is intended to ensure that all types of Start Printed Page 44512impoundments constructed for coal mining purposes are designed to prevent similar breakthroughs. This design requirement would reduce the probability of breakthroughs into underground mine workings, thus benefiting the public, the environment, and mine operators by avoiding the environmental and property damage and cleanup expenses that may result from those breakthroughs, consistent with the purposes of SMCRA in paragraphs (a) and (d) of section 102 of the Act.[400]

Paragraph (a)(2) sets forth design requirements for all impoundments other than low-hazard impoundments. We propose to revise the introductory text of existing paragraph (a)(2) for clarity and redesignate that text as paragraph (a)(2)(i). Proposed paragraph (a)(2)(i) would specify that the detailed design plan requirements of proposed paragraph (a)2)(ii) would apply to all structures meeting the MSHA criteria of 30 CFR 77.216(a), as well as to all structures that meet the Significant Hazard Class or High Hazard Class criteria for dams in NRCS publication Technical Release No. 60, “Earth Dams and Reservoirs,” regardless of whether those structures meet the MSHA criteria of 30 CFR 77.216(a).

We propose to revise redesignated paragraph (a)(2)(i) to update the incorporation by reference of the NRCS publication “Earth Dams and Reservoirs,” Technical Release No. 60 (210-VI-TR60, October 1985), by replacing the reference to the October 1985 edition with a reference to the superseding July 2005 edition. Consistent with the terminology in the newer edition, we propose to replace references to Class B or C dam criteria with references to Significant Hazard Class or High Hazard Class dam criteria, respectively. Only the terminology has changed—the actual criteria remain the same as before. The newer publication is not available from the National Technical Information Service, but is available online from the NRCS (the successor to the Soil Conservation Service). Consequently, we propose to delete the ordering information pertinent to the National Technical Information Service and replace it with the Internet address at which the publication may be reviewed and from which it may be downloaded without charge. We also propose to update the address and location of our administrative record room and the Internet address information for the National Archives and Records Administration.

In addition, we propose to redesignate existing paragraphs (a)(2)(i) through (iv) as paragraphs (a)(2)(ii)(A) through (D) and add introductory text to proposed paragraph (a)(2)(ii). The introductory text is a revised version of the last sentence of the introductory text of existing paragraph (a)(2), modified to be consistent with proposed paragraph (a)(2)(i). As it currently exists, redesignated paragraph (a)(2)(ii)(B) requires that the detailed design plan include any geotechnical investigation, design, and construction requirements. This language is ambiguous because it does not identify the geotechnical investigation, design, and construction requirements to which it refers. Therefore, we propose to revise redesignated paragraph (a)(2)(ii)(B) to require that the detailed design plan for any structure that meets the applicability provisions of proposed paragraph (a)(2)(i) incorporate any design and construction measures identified in the geotechnical investigation report prepared under 30 CFR 780.25(a)(1)(iv) as necessary to protect against potential adverse impacts from subsidence resulting from underground mine workings underlying or adjacent to the structure. These measures might include grouting or backstowing of mine voids or surface mining of seams within the impoundment safety zone. In short, proposed paragraph (a)(2)(ii)(B) would operate in conjunction with proposed paragraph (a)(1)(iv) to protect against failure of the impoundment embankment or other impoundment failures as a result of subsidence. Impoundment stability, especially for large impoundments, is important to protect the public, private and public property, and the environment from the adverse effects of flooding and other consequences of impoundment failure, consistent with the purposes of SMCRA in paragraphs (a) and (d) of section 102 of the Act.[401]

We propose to reinstate former paragraph (a)(3), which was erroneously removed as part of the codification process for a rule published December 12, 2008 (73 FR 75814). This paragraph contains detailed design plan requirements for structures not covered under paragraph (a)(2).

Proposed Paragraph (c): Permanent and Temporary Impoundments

Both the existing and proposed versions of paragraph (c) contain design requirements that apply to all impoundments. To improve clarity and consistency with other regulations, we propose to revise existing paragraph (c)(2) by replacing the term “Mine Safety and Health Administration” with a citation to 30 CFR 77.216(a), which contains the MSHA impoundment criteria to which paragraph (c)(2) refers. As revised, proposed paragraph (c)(2) would require that plans for impoundments meeting MSHA criteria comply with MSHA's impoundment design requirements at 30 CFR 77.216-2. We propose to delete the requirement that those plans also comply with 30 CFR 77.216-1. The requirement that we propose to delete is not germane to permit applications and plans because it contains signage requirements that apply only to impoundments that already exist or are under construction. In the second sentence, we propose to delete an obsolete cross-reference to paragraph (a).

We also propose to revise paragraph (c)(2) to clarify that the requirement that the permit application include the plan submitted to MSHA applies only to those portions of the plan that are complete at the time of submission of the SMCRA permit application. Impoundment plans normally are submitted to MSHA in stages; they may not be complete or even started at the time that the applicant submits an application for the SMCRA permit. SMCRA-related permit application information requirements are sufficiently comprehensive that the regulatory authority does not need the MSHA plan to process the SMCRA permit application or to ensure the stability of proposed structures.

We propose to redesignate existing paragraph (f) as paragraph (c)(4). That paragraph applies only to impoundments that meet certain criteria in Technical Release No. 60 or the MSHA criteria of 30 CFR 77.216(a). It has no relevance to the other structures to which 30 CFR 780.25 applies (low-hazard impoundments and refuse piles). Therefore, it is more appropriate to include the stability analysis requirements of existing paragraph (f) as part of proposed paragraph (c), which applies only to impoundments, including coal mine waste impoundments. We also propose to revise this paragraph to be consistent with the terminology in the July 2005 edition of Technical Release No. 60 by replacing references to Class B or C dam criteria with references to Significant Hazard Class or High Hazard Class dam criteria, respectively. Only the terminology would change; the actual criteria would remain the same as before. Finally, we propose to revise this paragraph to clarify that the stability analyses that it requires must address Start Printed Page 44513static, seismic, and post-earthquake (liquefaction) conditions because those conditions are all part of a comprehensive stability analysis.

Proposed Paragraph (d): Coal Mine Waste Impoundments and Refuse Piles

As discussed in the introductory portion of the preamble to this section, we propose to modify 30 CFR parts 780 and 784 to harmonize the terminology in those rules with our 1983 changes to the definitions and performance standards concerning coal mine waste. In essence, “refuse pile” would replace the term “coal processing waste bank” as used in existing parts 780 and 784, while the term “impounding structure” would include all structures that existing parts 780 and 784 refer to as coal processing waste dams or embankments. We also use the term “coal mine waste impoundment” to refer to the impounding structure in combination with the basin behind the impounding structure. We propose to combine existing paragraph (d), which contains design requirements for coal processing waste banks, and existing paragraph (e), which contains design requirements for coal processing waste dams and embankments, into a revised paragraph (d) that uses the newer terminology. Proposed paragraph (d) would apply to any application that proposes to place coal mine waste in a refuse pile or impoundment or use coal mine waste to construct an impounding structure. We are adding the language concerning use of coal mine waste to construct an impounding structure because proposed paragraph (d) is the permitting counterpart of the performance standards for coal mine waste disposal in 30 CFR 816.81 through 816.84. Section 816.84 applies to both impounding structures constructed of coal mine waste and impounding structures intended to impound coal mine waste. Our proposed revision would expand the scope of proposed paragraph (d) to coincide with the scope of the corresponding performance standards.

Proposed paragraph (d)(1) corresponds to existing paragraph (d), which requires that coal processing waste banks be designed to comply with the requirements of 30 CFR 816.81 through 816.84. Proposed paragraph (d)(1) would require that refuse piles (the successor term to “coal processing waste banks”) be designed to comply with the requirements of 30 CFR 780.28, 816.81, and 816.83. We propose to delete the cross-reference to 30 CFR 816.84 found in existing paragraph (d) because proposed paragraph (d)(1) would pertain only to refuse piles, not to the impounding structures to which 30 CFR 816.84 applies. The proposed deletion is not a substantive change because the corresponding provision of the existing rules does not pertain to impounding structures either, despite the cross-reference. We propose to add the cross-reference to 30 CFR 780.28 to emphasize the need for compliance with that section whenever a refuse pile would be located in or within 100 feet of a perennial or intermittent stream.

Proposed paragraph (d)(2) corresponds to existing paragraph (e), which requires that coal processing waste dams and embankments be designed to comply with the requirements of 30 CFR 816.81 through 816.84, among other things. Proposed paragraph (d)(2)(i) would require that impounding structures constructed of or intended to impound coal mine waste (the successor terminology to “coal processing waste dams and embankments”) be designed to comply with the requirements of 30 CFR 780.28, 816.81, and 816.84. We propose to delete the cross-reference to 30 CFR 816.83 found in existing paragraph (e) because proposed paragraph (d)(2) would pertain only to impounding structures, not to the refuse piles to which 30 CFR 816.83 applies. The proposed deletion is not a substantive change because the corresponding provision of the existing rules does not pertain to refuse piles either, despite the cross-reference. We also propose to add a cross-reference to the impoundment requirements of 30 CFR 816.49(a) and (c). This proposed addition likewise is not a substantive change because 30 CFR 816.84(b)(1) already includes an identical cross-reference to 30 CFR 816.49(a) and (c), which would apply by operation of the cross-reference to 30 CFR 816.84 in proposed paragraph (d)(2)(i). We propose to add this cross-reference only as a matter of clarity and ease of use.

Finally, we propose to add the cross-reference to 30 CFR 780.28 to emphasize the need for compliance with that section whenever an impounding structure constructed of or intended to impound coal mine waste would be located in or within 100 feet of a perennial or intermittent stream. While coal mine waste impoundments may not be retained as permanent impoundments, they typically are converted to refuse piles and retained as permanent features, which means that the stream segment that they cover is not restored. Hence, proposed paragraph (d)(2)(i) and proposed 30 CFR 780.28 would apply the same requirements to coal mine waste impoundments as would apply to refuse piles with respect to the approval of such structures in perennial or intermittent streams.

Proposed paragraph (d)(2)(ii) would require that the design plan for any impounding structure constructed of or intended to impound coal mine waste comply with the MSHA requirements of 30 CFR 77.216-2 if the structure meets the criteria of 30 CFR 77.216(a). The corresponding provision of existing paragraph (e) also required compliance with 30 CFR 77.216-1. We propose to delete this cross-reference because 30 CFR 77.216-1 does not include any design requirements. Instead, that rule consists solely of MSHA requirements for signage for existing impoundments and impoundments under construction. Those requirements are not relevant to preparation of plans or permit applications for proposed impoundments or impounding structures. Proposed paragraph (d)(2)(ii) would retain the requirement that each plan for an impounding structure comply with 30 CFR 77.216-2, which contains MSHA design requirements for impoundments and impounding structures.

Proposed paragraph (d)(2)(iii) is substantively identical to the corresponding portion of existing paragraph (e), which requires that the application include a geotechnical investigation of the foundation area and that the investigation be planned and supervised by an engineer or engineering geologist. We propose to redesignate existing paragraphs (e)(1) through (4), which establish minimum requirements for that investigation, as paragraphs (d)(2)(iii)(A) through (D).

Proposed paragraph (d)(2)(iv) would require that the design ensure that at least 90 percent of the water stored in the impoundment during the design precipitation event will be removed within a 10-day period. This requirement is substantively identical to existing 30 CFR 816.84(e). We propose to move it to 30 CFR 780.25(d)(2)(iv) as part of our ongoing efforts to move permitting requirements currently located in subchapter K to subchapter G.

14. Section 780.28: What additional requirements apply to proposed activities in, through, or adjacent to streams?

Proposed 780.28 would establish standards for the review and approval of permit applications that propose to conduct surface mining activities in or through a perennial, intermittent, or ephemeral stream or that would disturb the surface of lands within 100 feet of a perennial, intermittent, or ephemeral stream. Consequently, we propose to move the permitting aspects of the Start Printed Page 44514stream buffer zone rule, which is currently codified at 30 CFR 816.57(a) as part of the performance standards in subchapter K, to 30 CFR 780.28, which would be part of the permitting requirements of subchapter G. Existing 30 CFR 816.57(a) provides that the regulatory authority may authorize activities on the surface of lands within 100 feet of a perennial or intermittent stream only upon finding that (1) the activities will not cause or contribute to the violation of applicable State or Federal water quality standards and will not adversely affect the water quantity and quality or other environmental resources of the stream, and (2) if there will be a temporary or permanent stream-channel diversion, it will comply with 30 CFR 816.43.

Part II of this preamble summarizes the impacts of surface coal mining operations on streams, as documented by scientific studies. Our proposed rule is intended to prevent or minimize the adverse impacts documented in those studies.

The permitting requirements and performance standards in SMCRA contain limited direct references to streams, but SMCRA is replete with requirements to minimize or prevent adverse impacts on fish, wildlife, related environmental values, the quantity and quality of surface water and groundwater, and the hydrologic balance. See sections 507(b)(10), (11) and (14); 508(a)(9) and (13); 510(b); 515(b)(2), (4), (9), (10), (14), (17), and (24); 515(c)(4); 515(e)(3); 516(b)(4); and 516(b)(9) through (12).[402] To the extent that proposed 30 CFR 780.28 pertains to the impact of surface coal mining and reclamation operations on streams outside the permit area, section 510(b)(3) of SMCRA,[403] which prohibits issuance of a permit unless the applicant demonstrates, and the regulatory authority finds, that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area, provides authority for this proposed rule.

In addition, section 102 of SMCRA [404] repeatedly identifies environmental protection as one of the purposes of SMCRA. In particular, section 102(a) [405] states that one of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Paragraph (c) [406] provides that another purpose is to “assure that surface mining operations are not conducted where reclamation as required by this Act is not feasible.” Paragraph (d) [407] provides that still another purpose is to “assure that surface coal mining operations are so conducted as to protect the environment.” Paragraph (f) [408] states that one of the Act's purposes is to “strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.” Together with section 201(c)(2) of SMCRA [409] and the provisions of title V of SMCRA discussed below, these statutory provisions provide adequate authority for the stream protection measures that we propose to adopt in 30 CFR 780.28 to remedy the environmental problems identified in Part II of this preamble. Section 201(c)(2) of SMCRA [410] provides that the Secretary of the Interior, acting through OSMRE, shall “publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of the Act.”

In an en banc ruling, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Secretary's authority to promulgate rules under the authority of section 201(c) of SMCRA [411] that impose permitting requirements in addition to those set forth in sections 507 and 508 of SMCRA: [412] “We hold that the Act's explicit listings of information required of permit applicants are not exhaustive, and do not preclude the Secretary from requiring the states to secure additional information needed to ensure compliance with the Act.” [413] The court found that the Secretary's conclusion that additional information beyond that explicitly required in the Act was needed to effectively implement the Act was entitled to some deference.[414] Furthermore, the U.S. District Court for the District of Columbia has held that “[a] court should sustain regulations when they reasonably relate to the purpose of the legislation.” [415] The regulations that we propose in 30 CFR 780.28 clearly relate to and promote attainment of the environmental protection purposes of the Act, as well as the other provisions of SMCRA cited above that pertain to protection of fish, wildlife, related environmental values, the quantity and quality of surface water and groundwater, and the hydrologic balance. The proposed regulations also would implement section 515(b)(23) of SMCRA,[416] which provides that surface coal mining and reclamation operations must “meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this Act, taking into consideration the physical, climatological, and other characteristics of the site.”

In addition, the measures that we propose to adopt in 30 CFR 780.28 receive support from section 515(b)(2) of SMCRA,[417] which requires that surface coal mining and reclamation operations “restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is a reasonable likelihood.” Perennial and intermittent streams provide important fish and wildlife habitat, which almost always is one of the uses that the land was capable of supporting before mining. Section 515(b)(10) of SMCRA [418] also provides statutory authority for proposed 30 CFR 780.28. In relevant part, section 515(b)(10) of SMCRA requires that surface coal mining and reclamation operations “minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by . . . (G) such other actions as the regulatory authority may prescribe.”

Paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of SMCRA [419] provide support for the buffer zone protections that proposed 30 CFR 780.28 would afford to perennial and intermittent streams. Section 515(b)(10)(B)(i) of SMCRA,[420] which, in relevant part, requires that surface coal mining operations be conducted “so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area,” provides the primary Start Printed Page 44515statutory authority for that minimum buffer width. The prohibition on disturbing the buffer zone also would implement section 515(b)(24) of SMCRA,[421] which provides that surface coal mining and reclamation operations must be conducted to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible using the best technology currently available.

Proposed Paragraph (a): Clean Water Act Requirements

Proposed paragraph (a) would specify that a person may conduct surface mining activities in waters of the United States only if that person first obtains all necessary authorizations, certifications, and permits under the Clean Water Act, 33 U.S.C. 1251 et seq. This proposed paragraph is an informational provision that would be consistent with section 702(a) of SMCRA,[422] which provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act, any rule or regulation adopted under the Clean Water Act, or any state laws enacted pursuant to the Clean Water Act. Proposed paragraph (a) would operate in tandem with proposed 30 CFR 773.17(h), which would add a new permit condition requiring that the permittee obtain all necessary authorizations, certifications, and permits in accordance with Clean Water Act requirements before conducting any activities that require approval, authorization, or certification under the Clean Water Act. Permit conditions are directly enforceable under SMCRA. Therefore, addition of the permit condition in proposed 30 CFR 773.17(h) would mean that the SMCRA regulatory authority must take enforcement action if the permittee does not obtain all necessary Clean Water Act authorizations, certifications, and permits before beginning any activity under the SMCRA permit that also requires approval or authorization under the Clean Water Act.

Proposed Paragraph (b): When must I comply with this section?

Proposed paragraph (b)(1) would apply 30 CFR 780.28 to permit applications to conduct surface mining activities in or through a perennial, intermittent, or ephemeral stream or on the surface of lands within 100 feet, measured horizontally, of perennial or intermittent streams.[423] The 100-foot distance reflects the 100-foot buffer zone that 30 CFR 816.57(a) establishes for perennial and intermittent streams. The preamble to proposed 30 CFR 816.57(a) explains the rationale for the 100-foot buffer zone width. Activities include, but are not limited to, mining through or diverting streams; constructing sedimentation ponds, excess spoil fills, and coal mine waste disposal facilities in or near streams; and constructing stream crossings for roads and utilities, as well as the full range of mining and reclamation activities that the application may propose to take place outside the stream channel but on the surface of lands within 100 feet of the stream.

Proposed paragraph (b)(2), in combination with proposed paragraph (e)(2) and 30 CFR 816.57, would prohibit mining-related activities in or within 100 feet of perennial and intermittent streams unless the applicant demonstrates, and the regulatory authority finds in writing, that the proposed activity would not (i) preclude any premining use or any designated use under the Clean Water Act of the affected stream segment following the completion of mining and reclamation; (ii) result in the conversion of the affected stream segment from intermittent to ephemeral, from perennial to intermittent, or from perennial to ephemeral; (iii) cause or contribute to a violation of water quality standards under the Clean Water Act; or (iv) cause material damage to the hydrologic balance outside the permit area. Proposed paragraph (b)(2)(iv) would duplicate the finding required by 30 CFR 773.15(e). Proposed paragraphs (b)(2)(i) through (iii) are similar to subsets of the definition of material damage to the hydrologic balance outside the permit area, but they differ from the definition of that term and 30 CFR 773.15(e) in that they would apply within the permit area as well as outside it. Proposed paragraphs (b)(2)(i) and (ii) would apply to stream segments within the permit area only after the completion of mining and reclamation, consistent with section 515(b)(10) of SMCRA,[424] which provides for minimization, not prevention, of disturbances to the prevailing hydrologic balance at the minesite.

To enhance fish and wildlife habitat, as required by section 515(b)(24) of SMCRA,[425] proposed paragraph (b)(3)(i) would require that the permit application include plans for establishment of a riparian corridor at least 100 feet wide on each side of a perennial, intermittent, or ephemeral stream segment [426] that remains after mining or that is restored as part of the reclamation process. The preamble to proposed 30 CFR 780.16 explains why we selected the minimum 100-foot width for the riparian corridor.

Proposed paragraph (b)(3)(ii) would require that disturbed areas within the corridor be planted with native species, including species adapted to and suitable for planting in riparian zones within that corridor. It also would require use of native trees and shrubs in previously forested areas or in areas that would revert to forest under conditions of natural succession. Creation of a riparian corridor populated with native species is part of the best technology currently available to minimize adverse impacts on fish, wildlife, and related environmental values and to achieve enhancement of those resources, as required by section 515(b)(24) of SMCRA.[427] Nothing in proposed paragraph (b)(3) would require planting of hydrophilic species in riparian corridors or portions of riparian corridors that are incapable of providing the necessary moisture or other growing conditions. In those situations, proposed paragraph (b)(3)(ii) would require that the riparian corridor be planted with native species appropriate to the conditions.

Proposed paragraph (b)(3)(iii) would provide that the proposed riparian corridor requirement would not apply to prime farmland historically used for cropland because 30 CFR 785.17(e)(1) provides that the postmining land use of prime farmland historically used for cropland must be cropland. The proposed riparian corridor requirement also would not apply to situations in which revegetation would be incompatible with an approved postmining land use that is implemented during the revegetation responsibility period before final bond release. Finally, the riparian corridor requirement would not apply to stream segments buried beneath an excess spoil fill or a coal mine waste disposal facility pursuant to proposed paragraph (d).

Proposed Paragraph (c): What additional requirements apply to an application that proposed to mine through or divert a perennial, intermittent, or ephemeral stream?

Proposed paragraph (c)(1) would require that the proposed postmining drainage pattern of perennial, Start Printed Page 44516intermittent, and ephemeral stream channels to be restored after the completion of mining be similar to the premining drainage pattern. In addition to its ecological benefits, this requirement would better implement the requirement in section 515(b)(3) of SMCRA [428] that the permittee “restore the approximate original contour of the land.” The proposed rule would allow the regulatory authority to approve deviations from the premining drainage pattern when necessary to ensure stability, to promote enhancement of fish and wildlife habitat consistent with sections 515(b)(24) and 516(b)(11) of SMCRA,[429] or to prevent or minimize excessive downcutting (deepening) of reconstructed stream channels. For example, additional meanders may be needed to minimize channel erosion and downcutting when restoring streams in areas with a badlands-type topography that existed prior to mining.

Proposed paragraph (c)(2) would establish additional requirements for permit applications that propose to mine through or permanently or temporarily divert a perennial or intermittent stream. Proposed paragraph (c)(2)(i) would reiterate that the applicant must meet the requirements of proposed paragraphs (a) through (c)(1). Proposed paragraph (c)(2)(ii) would require that the applicant demonstrate that there is no reasonable alternative that would avoid mining through or diverting the stream. Proposed paragraph (c)(2)(iii) would require that the operation be designed to minimize the extent to which the stream will be mined through or diverted. Proposed paragraph (c)(2)(iv) would require that the applicant demonstrate that the techniques in the reclamation plan will restore the form and ecological function of the affected stream segment, as required by 30 CFR 816.57(b).

Proposed paragraph (c)(2)(iv)(A) would require the selective placement of aquitards (barriers to groundwater infiltration) within the backfill or fill when necessary to restore perennial and intermittent streams. Placement of a layer of lower-permeability spoil or other material near the surface but below the root zone for trees and shrubs could provide the subsurface flow needed to restore flow in perennial and intermittent stream segments. Construction of aquitards would have the additional benefit of quickly removing water that otherwise would have infiltrated the fill and could have emerged as leachate with undesirable concentrations of total dissolved solids or other parameters that could degrade downstream waters.

Proposed paragraph (c)(2)(iv)(B) would require that the permit application include a separate bond calculation for the costs of restoring the ecological function of the stream. It also would require that, before permit issuance, the permit applicant post a surety bond, a collateral bond, or a combination of surety and collateral bonds to cover that cost. A self-bond is not appropriate to guarantee restoration of a stream's ecological function because of the risk that the company may cease to exist during the time required to accomplish that restoration. In addition, a self-bond does not require that the permittee file financial instruments or collateral with the regulatory authority, nor is there any third party obligated to complete the reclamation or pay the amount of the bond if the permittee defaults on reclamation obligations.

Proposed paragraph (c)(2)(v) would require that the applicant comply with the stream restoration and stream-channel diversion design requirements in existing 30 CFR 816.43. As part of our effort to consolidate permitting requirements in subchapter G of our regulations, we propose to move the stream-channel diversion design provisions in the last sentence of existing 30 CFR 816.43(a)(3) and in paragraphs (b)(2) through (b)(4) of existing 30 CFR 816.43 to 30 CFR 780.28(c)(2)(v) and (vi).

We also propose to extend the design requirements of proposed paragraph (c)(2)(v)(A) and the design certification requirements of proposed paragraph (c)(2)(vi) to perennial and intermittent stream channels to be restored after the completion of mining. Our existing rules do not address restored stream channels, an oversight that we propose to correct because there is no legal or scientific basis for the absence of standards for the restoration of stream channels. Restored stream channels and permanent stream-channel diversions are equally important in terms of their value to the fish, wildlife, and related environmental values protected by section 515(b)(24) of SMCRA.[430] In addition, there is no legal, technical, or scientific reason why designs for restored stream channels should be subject to less rigorous certification standards than designs for stream-channel diversions.

Proposed paragraph (c)(2)(v)(A) would require that designs for permanent stream-channel diversions, temporary stream-channel diversions that will be in use for 2 or more years, and stream channels that are to be restored after the completion of mining replicate or approximate the premining characteristics of the original stream channel to promote the recovery and enhancement of the aquatic habitat and to minimize adverse alteration of stream channels on and off the site, including channel deepening or enlargement. This provision is similar to the last sentence of existing 30 CFR 816.43(a)(3), with a few exceptions.

First, the existing rule applies only to permanent stream-channel diversions. Applying the design requirements of proposed paragraph (c)(2)(v)(A) to temporary stream-channel diversions that will be in use for 2 or more years would reduce the damage to aquatic resources caused by temporary diversions that remain in use for extended periods, consistent with the requirement in section 515(b)(24) of SMCRA [431] to minimize adverse impacts on fish, wildlife, and related environmental values to the extent possible, using the best technology currently available. In recognition of the shorter lifespan of temporary diversions, we propose to specify that, for temporary stream-channel diversions that will remain in use for 2 or more years, the vegetation proposed for planting in the riparian zone need not include species that would not reach maturity until after the diversion is removed. In other words, faster-growing species like willows, alders, and poplars or early successional natural riparian vegetation would be acceptable.

Second, proposed paragraph (c)(2)(v)(A) would specify that the premining characteristics of the original stream channel include, but are not limited to, the baseline stream pattern, profile, dimensions, substrate, habitat, and natural vegetation growing in the riparian zone. The addition of this clarification is intended to make our regulations more consistent with similar requirements under section 404 of the Clean Water Act and its implementing regulations. It also would minimize adverse impacts on fish, wildlife, and related environmental values to the extent possible, using the best technology currently available, as required by section 515(b)(24) of SMCRA.[432]

Third, proposed paragraph (c)(2)(v)(A) would specify that the design must minimize adverse alteration of stream channels on and off the site, including channel deepening or enlargement. This provision would minimize adverse impacts on fish, wildlife, and related Start Printed Page 44517environmental values to the extent possible, using the best technology currently available, as required by section 515(b)(24) of SMCRA,[433] because channel deepening or enlargement can reduce the frequency and volume of flows over the flood-plain and contribute sediment to streamflow and streambeds through streambank erosion.

Proposed paragraph (c)(2)(v)(B) would require that the stream-channel design ensure that the hydraulic capacity of all temporary and permanent stream-channel diversions is at least equal to the hydraulic capacity of the unmodified stream channel immediately upstream from the diversion and no greater than the hydraulic capacity of the unmodified stream channel immediately downstream from the diversion. Existing 30 CFR 816.43(b)(2) applies the same standard for the hydraulic capacity of the diversion both upstream and downstream of the diversion; i.e., the designed hydraulic capacity of the diversion must be at least equal to the hydraulic capacity of the unmodified stream channel immediately upstream and downstream from the diversion. Our proposal to require that the designed hydraulic capacity of the diversion be no greater than (rather than at least equal to) the hydraulic capacity of the unmodified stream channel immediately downstream from the diversion would protect against the scouring and other adverse impacts that could result from a sudden constriction in channel capacity if the diversion was allowed to exceed the capacity of the unmodified stream channel downstream of the diversion. Therefore, proposed paragraph (c)(2)(v)(B) would be consistent with the requirement in section 515(b)(24) of SMCRA [434] to minimize adverse impacts on fish, wildlife, and related environmental values to the extent possible, using the best technology currently available.

Proposed paragraph (c)(2)(v)(C) would require that all temporary and permanent stream-channel diversions be designed so that the combination of channel, bank, and flood-plain configuration is adequate to pass safely the peak runoff of a 10-year, 6-hour precipitation event for a temporary diversion and a 100-year, 6-hour precipitation event for a permanent diversion. Proposed paragraph (c)(2)(v)(C) is substantively identical to existing 30 CFR 816.43(b)(3). We invite comment on whether the design event for a temporary diversion should be raised to the 25-year, 6-hour event to provide added safety and protection against overtopping.

Proposed paragraph (c)(2)(vi) would require submission of a certification from a qualified registered professional engineer that the designs for all stream-channel diversions and all stream channels to be restored after the completion of mining meet the design requirements of 30 CFR 780.28 and any additional design criteria established by the regulatory authority. Our proposed rule differs from the design certification elements of existing 30 CFR 816.43(b)(4) in that we propose to expand the design certification requirement to apply to all stream channels to be restored after the completion of mining, not just to stream-channel diversions as in the existing rule. As discussed above, there is no legal, technical, or scientific reason to apply less rigorous design and certification requirements to restored stream channels than to permanent stream-channel diversions. In addition, we propose to require that the engineer certify that the design meets the design requirements of 30 CFR 780.28, not the performance standards as in the existing rule, because performance standards do not apply directly to designs. Finally, we propose to specify that the certification may be limited to the location, dimensions, and physical characteristics of the stream channel; it need not include restoration of ecological function, which may be beyond the professional competency of an engineer.

Proposed Paragraph (d): What requirements apply to an application to construct an excess spoil fill or coal mine waste disposal facility in a perennial or intermittent streams?

Proposed paragraph (d)(1) would apply the requirements of proposed paragraph (d)(2) in place of the requirements of proposed paragraph (b)(2) if the applicant proposes to construct an excess spoil fill or coal mine waste disposal facility that would encroach upon any part of a perennial or intermittent stream. We are proposing paragraph (d) because we recognize that some of the requirements of proposed paragraph (b)(2) that would apply to activities in streams cannot be met with respect to a stream segment that is buried underneath an excess spoil fill or a coal mine waste disposal facility.

A permit application that contains a proposal to construct an excess spoil fill or a coal mine waste disposal facility that would not encroach upon any part of a perennial or intermittent stream would not be subject to the requirements of proposed paragraph (d)(2). However, if the proposed fill or disposal facility would disturb the surface of land within 100 feet of a perennial or intermittent stream,[435] the application would have to comply with the requirements of proposed paragraph (b)(2).

Proposed paragraph (d)(2) would identify the demonstrations that a permit application must include if the applicant proposes to construct an excess spoil fill or coal mine waste disposal facility in a perennial or intermittent stream. The legal authority for the proposed demonstration requirements is set forth in detail in the introductory paragraphs of the discussion of proposed 30 CFR 780.28 in this preamble and will not be repeated here. The demonstrations that we propose to require are a combination of other regulatory program and Clean Water Act requirements; measures that constitute the best technology currently available to minimize any adverse impacts on fish, wildlife, and related environmental values, as required by section 515(b)(24) of SMCRA; [436] and fish and wildlife enhancement measures intended to offset any unavoidable long-term damage to fish, wildlife, and related environmental values.

Proposed paragraph (d)(2)(i) would require that the applicant demonstrate that the operation has been designed to minimize the amount of excess spoil or coal mine waste generated, which would have the effect of minimizing the need for or the size of the excess spoil fill or coal mine waste disposal facility. This finding corresponds to proposed 30 CFR 780.35(b) for excess spoil. For coal mine waste, this finding in essence would require a description of the steps taken to minimize the amount of coal mine waste generated by the coal preparation process, such as the use of filter presses, or an explanation of why minimization measures are not practicable.

Proposed paragraph (d)(2)(ii) would require that the applicant demonstrate that, after evaluating all potential upland locations in the vicinity of the proposed operation, there is no practicable alternative that would avoid placement of excess spoil or coal mine waste in a perennial or intermittent stream. Potential upland locations that must be considered include, but are not limited to, abandoned mine lands and existing fills with excess capacity. The application must identify potential locations such as the examples Start Printed Page 44518mentioned above and explain why those locations are not suitable or practicable. We anticipate that, for excess spoil, the permit applicant and regulatory authority would conduct this analysis in a manner similar to that described in Kentucky Reclamation Advisory Memorandum (RAM) 145, which establishes a fill placement optimization process for steep-slope mining in Kentucky.[437] For coal mine waste, the application would have to explain why an alternative configuration, location, or coal mine waste disposal method is not practicable.

Proposed paragraph (d)(2)(iii) would require that the applicant demonstrate that, to the extent possible using the best technology currently available, the proposed excess spoil fill or coal mine waste disposal facility has been designed to minimize both placement of excess spoil or coal mine waste in a perennial or intermittent stream and adverse impacts on fish, wildlife, and related environmental values. This provision corresponds in part to the fill optimization requirements of proposed 30 CFR 780.35(c). We anticipate that the RAM 145 process mentioned above may assist in meeting this requirement. Proposed paragraph (d)(2)(iii) would implement, in part, section 515(b)(24) of SMCRA,[438] which provides that surface coal mining and reclamation operations must be conducted to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible, using the best technology currently available.

Proposed paragraph (d)(2)(iv) would require that the applicant demonstrate that the fish and wildlife enhancement plan for the proposed operation includes measures that would fully and permanently offset any long-term adverse impacts that the fill, refuse pile, or coal mine waste impoundment would have on fish, wildlife, and related environmental values within the footprint of the fill, refuse pile, or coal mine waste impoundment. The regulatory authority would determine the meaning of “fully and permanently offset” on a case-by-case basis. At a minimum, riparian corridors must be protected by conservation easements (dedicated to an appropriate agency or organization) or deed restrictions so that the newly planted vegetation is not destroyed after bond release. We invite comment on whether the final rule could or should include more specific standards or criteria for determining the meaning of “fully and permanently offset.” We also invite comment on whether mitigation required pursuant to section 404 of the Clean Water Act [439] may satisfy this requirement and whether past Clean Water Act mitigation measures have been successful. We encourage submission of data to document the success or failure of those measures.

Proposed paragraph (d)(2)(v) would require that the applicant demonstrate that the excess spoil fill or coal mine waste disposal facility has been designed in a manner that will not cause or contribute to a violation of water quality standards or result in the formation of toxic mine drainage. The demonstration that this paragraph would require is intended to ensure the proposed operation will not cause material damage to the hydrologic balance outside the permit area. In particular, it is intended to ensure that discharges to surface water or groundwater from the excess spoil fill or coal mine waste disposal facility would not have a substantial adverse impact on water quality or aquatic biota in receiving streams. As defined in 30 CFR 701.5, toxic mine drainage means any discharge that “contains a substance that through chemical or physical effects is likely to kill, injure, or impair biota commonly present in that area that might be exposed to it.”

Proposed paragraph (d)(2)(vi) would require that the applicant demonstrate that the revegetation plan submitted under proposed 30 CFR 780.12(g) requires reforestation of a completed excess spoil fill if the land is forested at the time of application or if it would revert to forest under conditions of natural succession. This measure is intended to minimize the adverse impacts of the fill on watershed hydrology, especially the quantity and quality of surface runoff, and aquatic life in the stream.

Proposed Paragraph (e): What are the regulatory authority's responsibilities?

Proposed paragraph (e)(1)(i) would require that the regulatory authority establish objective standards for determining when the ecological function of a restored or permanently-diverted perennial or intermittent stream has been restored. Objective standards are essential to fair enforcement of the requirement for restoration of the ecological function of streams and to enable permit applicants to develop appropriate and comprehensive reclamation plans. Proposed paragraph (e)(1)(ii) would require that, in establishing these standards, the regulatory authority coordinate with the Clean Water Act permitting authority to ensure compliance with all Clean Water Act requirements.

Proposed paragraph (e)(1)(iii) would specify that the standards established by the reg