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Stream Protection Rule

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AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSMRE or OSM), are revising 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 final rule will better protect water supplies, surface water and groundwater quality, 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 have revised our regulations to 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. Approximately thirty percent of the final rule consists of editorial revisions and organizational changes intended to improve consistency, clarity, accuracy, and ease of use.

DATES:

This rule is effective January 19, 2017.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

For the final 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. Kathleen G. Sheehan, Esq., Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 3 Parkway Center, 2nd Floor, Pittsburgh, Pennsylvania 15220. Telephone: 412-937-2829.

For the final 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 final 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 revising our regulations?

III. What opportunity did we provide for public comment on the proposed rule and supporting documents?

IV. What general comments did we receive on the proposed rule?

V. Tabular Summaries of Revisions and Organizational Changes

VI. How do our final regulations differ from our proposed regulations?

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

B. Section 701.5: Definitions

C. Section 701.16: How will the stream protection rule apply to existing and future permits and permit applications?

D. 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?

5. Section 773.20: What actions must the regulatory authority take when a permit is issued on the basis of inaccurate information?

E. 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?

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

F. 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 777.14: What general requirements apply to maps and plans?

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

G. 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 removing 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?

H. 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 removing the provisions for air pollution control plans in previous 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)?Start Printed Page 93067

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 780.26: What special requirements apply to surface mining near underground mining?

15. Section 780.27: What additional permitting requirements apply to activities in or through an ephemeral stream?

16. Section 780.28: What additional permitting requirements apply to activities in, through, or adjacent to a perennial or intermittent stream?

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

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

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

I. 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?

2. Section 783.26: May I submit permit application information in increments as mining progresses?

J. 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 removing the provisions for air pollution plans in previous 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 780.27: What additional permitting requirements apply to activities in or through an ephemeral stream?

12. Section 784.28: What additional permitting requirements apply to activities in, through, or adjacent to a perennial or intermittent stream?

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

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

15. Section 784.40: May I submit permit application information in increments as mining progresses?

16. Why are we removing 30 CFR 784.200?

K. 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?

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

1. How have we revised the definitions in 30 CFR 800.5?

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

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

4. Section 800.12: What types of performance bond are acceptable?

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

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

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

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

9. Why are we removing 30 CFR 800.17?

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

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

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

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

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

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

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

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

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

19. Section 800.50: When and how will a performance bond be forfeited?

20. Section 800.60: What liability insurance must I carry?

21. Section 800.70: What special bonding provisions apply to anthracite operations in Pennsylvania?

M. 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?

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 Clean Water Act requirements apply to discharges from my operation?

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 816.55: What must I do with sedimentation ponds, diversions, impoundments, and treatment facilities after I no longer need them?

19. Section 816.56: What additional performance standards apply to activities in or through an ephemeral stream?

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

21. Section 816.59: How must I maximize coal recovery?Start Printed Page 93068

22. Section 816.61: Use of Explosives: General Requirements

23. Section 816.62: Use of Explosives: Preblasting Survey

24. Section 816.64: Use of Explosives: Blasting Schedule

25. Section 816.66: Use of Explosives: Blasting Signs, Warnings, and Access Control

26. Section 816.67: Use of Explosives: Control of Adverse Effects

27. Section 816.68: Use of Explosives: Records of Blasting Operations

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

29. Why are we removing the provisions for rock-core chimney drains in 30 CFR 816.72?

30. Why are we removing the provisions for durable rock fills in 30 CFR 816.73?

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

32. Section 816.79: What measures must I take to protect underground mines in the vicinity of my surface mine?

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

34. Section 816.83: What special requirements apply to coal mine waste refuse piles?

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

36. Section 816.87: What special requirements apply to burning and burned coal mine waste?

37. Section 816.89: How must I dispose of noncoal mine wastes?

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

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

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

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

42. Why are we removing 30 CFR 816.101?

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

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

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

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

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

48. Section 816.111: How must I revegetate areas disturbed by mining activities?

49. Why are we removing 30 CFR 816.113 and 816.114?

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

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

52. Section 816.131: What actions must I take when I temporarily cease mining operations?

53. Section 816.132: What actions must I take when I permanently cease mining operations?

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

55. Section 816.150: What are the general requirements for haul and access roads?

56. Section 816.151: What additional requirements apply to primary roads?

57. Section 816.180: To what extent must I protect utility installations?

58. Section 816.181: What requirements apply to support facilities?

59. Why are we removing interpretive rule in 30 CFR 816.200?

N. 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 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 removing the interpretive rules in 30 CFR 817.200?

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

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

XVII. What effect will this rule have in federal program states and on Indian lands?

XVIII. How will this rule affect state regulatory programs?

IX. 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

I. Executive Summary

Significant advances in scientific knowledge and in 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. This rule acknowledges 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 rule has the following seven major elements:

  • First, the 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 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 facilitate evaluation of the effects of mining operations.
  • Third, the 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 timely information documenting mining-related changes in water quality and quantity. Similarly, the rule addresses the need to require monitoring of the biological condition of perennial and certain intermittent streams during and after mining and reclamation to evaluate changes in aquatic life. Proper monitoring will enable timely detection of any adverse trends and allow timely implementation of any necessary corrective measures.Start Printed Page 93069
  • Fourth, the 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 rule ensures 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 rule ensures 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 or to higher or better uses of which there is reasonable likelihood. 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 rule also requires use of native species to revegetate reclaimed mine sites unless and until a conflicting postmining land use, such as intensive agriculture, is implemented.
  • Seventh, the rule updates measures to protect threatened and endangered species and designated critical habitat under the Endangered Species Act of 1973.[2] It also better explains how the fish and wildlife protection and enhancement provisions of SMCRA should be implemented.

This rule more completely implements SMCRA's permitting requirements and performance standards and provides regulatory clarity to operators and stakeholders while better achieving the purposes of SMCRA as set forth in section 102 of the Act.[3] In particular, the rule more completely realizes 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 rule addresses court decisions and strikes 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.

Summary of Benefits and Costs

The final regulatory impact analysis (RIA) for this rule contains a detailed discussion of the rule's benefits and costs. We estimate that, among other things, the rule's benefits to streams and forests between 2020 and 2040 will include—

  • Restoration of 22 miles of intermittent and perennial streams per year.
  • Improved water quality in 263 miles of intermittent and perennial streams per year downstream of minesites.
  • Four miles of intermittent and perennial streams per year not being covered by excess spoil fills or coal mine waste facilities.
  • Improved reforestation of 2,486 acres of mined land per year.
  • Avoidance by mining operations of eight acres of forest per year.

In terms of economic impacts, we estimate that the rule will result in an average annual employment gain of 156 fulltime equivalents between 2020 and 2040. This estimate includes an average annual reduction of 124 fulltime equivalents in employment related to coal production and an average annual gain of 280 fulltime equivalents in industry employment related to implementation of the rule.

We estimate that the rule will result in an average annual 0.08% reduction in coal production between 2020 and 2040, which equates to 0.7 million tons of coal. That amount includes 0.2 million tons produced by surface mining methods (0.04% of the total amount produced by surface mining methods) and 0.5 million tons produced by underground mining methods (0.14% of the total amount produced by underground mining methods). The final RIA projects that this reduction in production will be accompanied by an increase in average annual coal prices ranging from 0.2% in the Powder River Basin to 1.3% in Central Appalachia and the Illinois Basin.

We estimate that total industry compliance costs per year during 2020-2040 would average $81 million, which is 0.1% or less of aggregate annual industry revenues, ranging from an additional one cent per ton of longwall-mined coal on the Colorado Plateau to an additional $1.40 per ton for surface-mined coal in the Illinois Basin. Of the $81 million in increased annual costs to industry, surface mining operations will bear an estimated $71 million, while underground mining operations will absorb $10 million. In the aggregate, state regulatory authorities will incur estimated additional costs of $0.5 million per year between 2020 and 2040.

Implementation of this rule will result in reductions in greenhouse gas emissions from coal production. Expressed in terms of carbon dioxide equivalents, we project that those reductions will total 2.6 million short tons in 2020. “Carbon dioxide equivalent” is a unit used to describe the impact of different greenhouse gases on a comparative basis by expressing the impact in terms of the amount of carbon dioxide that would have the same global warming impact as the type and amount of greenhouse gases at issue. We also project that implementation of the final rule will result in the annualized benefit of $57 million due to the reduced carbon dioxide emissions from fossil fuel consumption across the timeframe of the analysis (2020—2040).

II. Why are we revising our regulations?

Our primary purpose in adopting 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.” [4] Specifically, the 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. The final rule reflects 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 and consideration of the comments that we received on the proposed rule. The final rule more completely implements 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.[5] It also updates our regulations concerning compliance with Start Printed Page 93070the Endangered Species Act of 1973.[6] In addition, as proposed, we have revised and reorganized our regulations for clarity, to make them more user-friendly, to remove obsolete and redundant provisions, and to implement plain language principles.

The preamble to the proposed rule sets forth the detailed rationale for adoption of this rule and the history of prior rulemaking and litigation concerning stream buffer zones and stream protection. See 80 FR 44436-44585 (Jul. 27, 2015).

Final Environmental Impact Statement (EIS)

The final EIS for this 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 [7] and protection of fish, wildlife, and related environmental values,[8] which underscores the need to update our regulations to reflect new scientific understanding of impacts associated with coal mining.

III. What opportunity did we provide for public comment on the proposed rule and supporting documents?

On July 16, 2015, we announced that the proposed rule, draft environmental impact statement (DEIS), and draft regulatory impact analysis (DRIA) were available for review at www.regulations.gov, on our Web site (www.osmre.gov), and at selected OSMRE offices. On July 17, 2015, we published a notice in the Federal Register announcing the availability of the DEIS for the proposed rule. See 80 FR 42535-42536. The notice reiterated that the DEIS was available for review at www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the notice. The comment period for the DEIS was originally scheduled to close on September 15, 2015. On July 27, 2015, we published the proposed stream protection rule in the Federal Register. See 80 FR 44436-44698. That document reiterated that the proposed rule, DEIS, and DRIA were available for review at www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the notice. The comment period for the proposed rule and DRIA was originally scheduled to close on September 25, 2015. In response to requests for additional time to review and prepare comments on all three documents, we extended the comment period for the proposed rule, DEIS, and DRIA through October 26, 2015. See 80 FR 54590-54591 (Sept. 10, 2015).

During the public comment period, we held six public hearings on the proposed rule in Golden, Colorado (September 1, 2015); Lexington, Kentucky (September 3, 2015); St. Charles, Missouri (September 10, 2015); Pittsburgh, Pennsylvania (September 10, 2015); Big Stone Gap, Virginia (September 15, 2015); and Charleston, West Virginia (September 17, 2015). In addition to the testimony offered at the hearings and meetings, we received approximately 94,000 written or electronic comments on the proposed rule. In developing the final rule, we considered all comments that were germane to the proposed rule. In the remainder of this preamble, we summarize the comments received and discuss our disposition of those comments and how and why the final rule differs from the proposed rule.

IV. What general comments did we receive on the proposed rule?

A. We Should Reopen the Comment Period To Allow Adequate Time for Public Review and Comment

Many commenters contended that we should have extended the time for public review and comment on the proposed rule and supporting documents. These commenters generally raised objections about the amount of material, primarily the proposed rule and its preamble, the DEIS, and the DRIA, all of which were lengthy. The commenters noted that we cited many studies, reports and supporting documents, which would take time to locate and review. Some commenters claimed that they lacked staff to review the material and provide meaningful comments within the time provided. These commenters stated that the 102 days we provided for review was too short, particularly in contrast to the time it took us to prepare and propose a rule.

As described in Part III of this preamble, the stream protection rule has been the subject of robust public involvement, starting in 2009. During that year, we published an advance notice of proposed rulemaking,[9] conducted 15 stakeholder outreach meetings, held nine public scoping meetings, and provided two public comment periods totaling 76 days on scoping for the DEIS. The scoping process generated over 20,500 comments, including input from state regulatory authorities.

On July 16, 2015, we announced that the proposed rule, DEIS, and DRIA were available for review at www.regulations.gov, on our Web site (www.osmre.gov), and at selected OSMRE offices. On July 17, 2015, we published a notice in the Federal Register announcing the availability of the DEIS for the proposed rule. See 80 FR 42535-42536. The notice reiterated that the DEIS was available for review at www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the notice. The comment period for the DEIS was originally scheduled to close on September 15, 2015. On July 27, 2015, we also published the proposed stream protection rule in the Federal Register. See 80 FR 44436-44698. That document reiterated that the proposed rule, DEIS, and DRIA were available for review at www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the notice. The comment period for the proposed rule and DRIA was originally scheduled to close on September 25, 2015. In response to requests for additional time to review and prepare comments on all three documents, we extended the comment period for the proposed rule, DEIS, and DRIA through October 26, 2015. See 80 FR 54590-54591 (Sept. 10, 2015).

Interested parties, therefore, received a total of 102 days to review the proposed rule and supporting documents. During that time, we also held six public hearings in Colorado, Kentucky, Missouri, Pennsylvania, Virginia, and West Virginia. We received approximately 95,000 comments from all sources on the proposed rule, DEIS, and DRIA.

The proposed rule, DEIS, and DRIA included citations to references that we relied upon in developing the documents. These reference citations were available from the time of publication of the proposed rule, DEIS, and the DRIA in the Federal Register. We used these references in discussing both specific components of the rule and our analysis, as well as for support of our discussion on more general concepts. We did not receive any requests for copies of these references during the comment period. However, in response to language that Congress included in a report accompanying the Consolidated Appropriations Act of 2016, Public Law 114-113, we placed all publicly-available references on www.regulations.gov. Copyright-protected materials are easily obtainable through state or university libraries or the publisher. We were not able to provide copyright-protected items to Start Printed Page 93071requesters directly because doing so might violate copyright laws. We also scheduled meetings between us and state technical personnel to discuss the scientific studies and other reference documents on two dates (April 14 and 21, 2016). The meetings were held simultaneously in Denver, Colorado; Alton, Illinois; and Pittsburgh, Pennsylvania. Staff from six state regulatory authorities participated in the meeting on April 14, 2016, and staff from five state regulatory authorities participated in the meeting on April 21, 2016.

The comment period we provided fully complies with the Administrative Procedure Act, 5 U.S.C. 553, which does not set a minimum public comment period for a proposed rule. We also exceeded the 60-day minimum comment period recommended by Section 6(a)(1) of Executive Order 12866 for meaningful public participation. This time is comparable to the comment periods for similar regulations that we have issued in the past. For example, the now-vacated 2008 stream buffer zone rule was subject to a 90-day comment period,[10] while the comment period for the 1978 proposed rule containing most of the original permanent regulatory program regulations was 71 days.[11]

It is also noteworthy that many commenters, primarily environmental groups, opposed our 30-day extension of the comment period. They maintained that 60 days was sufficient to review the materials and provide meaningful comment. These and other commenters, including state regulatory authorities, were able to provide extensive, detailed, meaningful comments on the proposed rule in the comment period provided.

B. We Should Further Engage the State Regulatory Authorities Before Finalizing the Rule

Most state and industry commenters urged us to refrain from finalizing the proposed rule at this time. Instead, these commenters requested that we engage in additional meaningful collaboration with the state regulatory authorities. Many of these commenters stated that we could benefit further from the insight, experience, and practices of the state regulatory authorities when developing the regulatory text, final EIS, and final RIA. According to the commenters, we did not provide the regulatory authorities and other state agencies that had agreed to be cooperating agencies in the National Environmental Policy Act of 1969 (NEPA) process with the opportunity for meaningful engagement. The commenters expressed their belief that we had not acted in accordance with the terms of the memoranda of understanding describing the roles and responsibilities for the effort. The commenters noted that, as a consequence, all but one of those regulatory authorities had terminated their cooperating agency status.

We have substantially engaged with stakeholders, including the regulatory authorities. The rulemaking process began with an advance notice of proposed rulemaking, 15 stakeholder outreach meetings, nine public scoping meetings, and two public comment periods on the scoping for the DEIS. The scoping process generated over 20,500 comments, including input from the states. A number of state agencies, including state SMCRA regulatory authorities, participated as cooperating agencies in the early development of the DEIS for the stream protection rule. As of November, 2010, we had sent Chapters 1, 2, 3 and 4 of the DEIS to all cooperating agencies. Chapters 1-4 are the heart of an EIS. Those chapters include the statement of purpose and need, a description of the alternatives considered, a description of the affected environment, and an analysis of the environmental consequences of the alternatives. The cooperating agencies provided meaningful input and comments. We used this information to prepare the DEIS. In response to this and other feedback, we revised the DEIS over the next several years. Shortly before we announced the availability of the DEIS for public comment, all but one of the state regulatory authorities voluntarily terminated their role as cooperating agencies.

We made the DEIS available on July 16, 2015, to all cooperating agencies and the public to review and provide input on during the public comment period. We subsequently extended the public comment period to provide interested parties, including the states, more time to review and comment on the DEIS. We conducted six public hearings in Colorado, Kentucky, Missouri, Pennsylvania, Virginia and West Virginia during the public comment period. Although not required to do so, in a letter dated October 7, 2015, prior to the close of the public comment period on October 26, 2015, we invited the former cooperating state agencies to re-engage as cooperating agencies under NEPA. None accepted this invitation. Ultimately, OSMRE received approximately 95,000 comments, including hundreds of pages of comments from state SMCRA regulatory authorities, on the DEIS, DRIA, and the proposed stream protection rule. We considered these comments in developing this final rule, the final EIS, and the final RIA.

The Department's Assistant Secretary for Land and Minerals Management, the Director of OSMRE, and other OSMRE officials continued to meet with representatives of states after the close of the comment period, consistent with congressional direction in a report accompanying the Consolidated Appropriations Act of 2016, Public Law 114-113. In addition to meetings with state SMCRA regulatory authorities in conjunction with Interstate Mining Compact Commission meetings, Department of the Interior and OSMRE representatives have either met with or held telephone or video conferences with 14 different state regulatory authorities since the proposed rule was published. We also scheduled meetings of OSMRE and state technical personnel to discuss the scientific studies and other reference documents on two dates (April 14 and 21, 2016). The meetings were held simultaneously in Denver, Colorado; Alton, Illinois; and Pittsburgh, Pennsylvania. Staff from six state regulatory authorities participated in the meeting on April 14, 2016, and staff from five state regulatory authorities participated in the meeting on April 21, 2016. Notice of the Final Environmental Impact Statement was published in the Federal Register on November 16, 2016 (81 FR 80592 and 81 FR 80664), by OSMRE and the U.S. Environmental Protection Agency, respectively.

We understand the state regulatory authorities wanted more input, not only in the EIS, but also in the rule and the RIA. However, through this extensive outreach we have met our obligations as set forth in the Administrative Procedure Act, NEPA, and the pertinent executive orders and have sought the input from state regulatory authorities at crucial junctures in the development of the rule—early in the rulemaking process and after publication of the proposed rule. These are the points where their insights could best shape the proposal and refine the final rule without impinging on our deliberative process and our ability to craft a rule to meet our purpose and need. The final regulations that we are publishing today have been shaped by this direct input as well as by the information we have gleaned through our oversight of the state programs.Start Printed Page 93072

C. We Have Not Accorded Sufficient Deference to Principles of Cooperative Federalism and the Primacy of States With Approved Regulatory Programs

According to numerous commenters, the proposed rule impinges on the concepts of cooperative federalism and state primacy in SMCRA. Because of this alleged impingement on states' rights under SMCRA, many of these commenters asserted that the proposed rule exceeds our statutory authority and contravenes the Tenth Amendment to the U.S. Constitution. They also charged that it “flips the central SMCRA mandate of state primacy on its heads.”

We disagree with these commenters. While it is true that primacy states play a key role in enforcing SMCRA, it is also true that we maintain a role in the implementation and oversight of SMCRA. See, e.g., Hodel v. Virginia Surface Mining and Reclamation Ass'n Inc., 452 U.S. 264, 289 (1981) (“The most that can be said is that the Surface Mining Act establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs.” (Emphasis added.) These federal standards “provide [a] blueprint against which to evaluate [a] state's program.” [12] The U.S. Supreme Court has held this statutory scheme to be a proper exercise of Congressional power under the U.S. Constitution. Hodel, 452 U.S. at 290-291.

We have clear authority to issue regulations such as this rule to establish federal minimum standards. Section 102 of SMCRA sets forth thirteen purposes of the Act.[13] The first of these purposes is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” [14] Several other purposes are related to assuring that surface coal mining operations are conducted in a manner that protects the environment.[15] This authority also contains a purpose unique to SMCRA: “whenever necessary, exercise the full reach of Federal constitutional powers to ensure the protection of the public interest through effective control of surface coal mining operations.” [16] SMCRA then vests the authority to carry out these purposes with us; specifically, under section 201(c)(2), we have clear authority to “publish and promulgate such rules and regulations as may be necessary to carry out the purposes of the Act.” [17] Our strong federal role, which includes updating the federal minimum standards, ensures that regulation of surface coal mining and reclamation operations remains environmentally protective and is not plagued by many of the problems that led to the enactment of SMCRA in the first place. See, e.g., H.R. Rep. No. 95-218, at 90 (“For a number of predictable reasons—including insufficient funding and the tendency for State agencies to be protective of local industry—State enforcement has in the past [i.e., prior to the passage of SMCRA in 1977] often fallen short of the vigor necessary to assure adequate protection of the environment.”). This rule, therefore, is a valid exercise of our authority to update the federal minimum standards to reflect 30 years of scientific development and 30 years of experience in implementing SMCRA.

Contrary to the contention of some commenters, we are not abrogating primacy. Nor are we creating a rigid one-size-fits-all rule. Primacy states can and should tailor their state laws and regulations implementing this rule to local conditions as long as they meet minimum federal standards and are no less effective than the federal rules in meeting the requirements of SMCRA. In addition, the final rule provides discretion to the regulatory authority in certain areas, including, but not limited to, the following examples:

  • Final § 773.15(j): Compliance with the Endangered Species Act. Provides the permit applicant and the regulatory authority with several options for demonstrating compliance with the Endangered Species Act of 1973.
  • Final § 780.16(d): Potential Enhancement Measures. The regulatory authority has the discretion to determine the type, scope, and location of fish and wildlife enhancement measures.
  • Final § 780.19(a): Information on Hydrology, Geology, and Aquatic Biology, Baseline Information. The regulatory authority has the discretion to determine what constitutes “sufficient detail” with respect to the information required in this section, including the location and number of monitoring locations.
  • Final § 780.19(b)(6)(ii): Groundwater Information. The regulatory authority has the discretion to determine the baseline groundwater quality and quantity sampling protocol and subsequent analyses of these data.
  • Final § 780.19(c)(5): Precipitation Measurements. The regulatory authority has the flexibility to determine whether the permit applicant must prepare a hydrologic model of the proposed mine site.
  • Final § 780.19(c)(6)(vii): Assessing the biological condition of intermittent and perennial streams. The regulatory authority has the flexibility to choose from available scientifically defensible protocols, including indices of biological integrity, to determine the biological condition of streams.
  • Final § 780.21(b)(7): Evaluation Thresholds. The regulatory authority has the flexibility to determine the parameters it will use as evaluation thresholds.
  • Final § 780.27(b)(2): What Permitting Requirements Apply to Proposed Activities in or Through Ephemeral Streams? The regulatory authority has the flexibility to approve a drainage pattern that differs from the premining pattern based upon a variety of site specific conditions.
  • Final § 780.28(c)(2): Proposed Activities In, Through, or Adjacent to Perennial and Intermittent Streams. The regulatory authority has the flexibility to approve a drainage pattern or stream-channel configuration that differs from the premining pattern based upon a variety of site-specific conditions.
  • Final § 780.28(e)(2): Conversion of Streams. The regulatory authority has the flexibility to approve limited stream flow regime conversions on a case-by-case basis as long as certain criteria are satisfied.
  • Final § 780.28(g)(1): Standards for the Restoration of Ecological Function to Perennial or Intermittent Streams. The regulatory authority has discretion to establish objective criteria for determining the standards for restoring the ecological function of a reconstructed perennial or intermittent stream.

The underground mining counterparts to these surface mining provisions offer the same flexibilities to the regulatory authority.

D. We Did Not Adequately Demonstrate a Need for This Rulemaking

Many commenters stated that we have neither provided sufficient rationale for the development of this rule nor any evidence to support what many commenters consider a complete rewrite of the federal regulations implementing SMCRA. A number of commenters also raised concerns about whether the proposed rule articulated a legally Start Printed Page 93073adequate justification for a nationwide rulemaking on issues related to stream protection. In particular, some commenters noted that the June 11, 2009, Memorandum of Understanding (MOU) among the U.S. Department of the Army, the U.S. Department of the Interior, and EPA implementing the interagency action plan on Appalachian surface coal mining was limited to six states in Appalachia and primarily focused on issues related to steep-slope mining. The commenters questioned our decision to propose a nationwide rule in response to the MOU, which, by its own terms, was designed to significantly reduce the harmful environmental consequences of surface coal mining operations in Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia and ensure that future mining is conducted consistent with federal law. The 2009 MOU provided impetus and support for this rulemaking, but it is not the sole reason for the rulemaking. After extensive outreach, 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. Streams are important components of the hydrologic regime everywhere that streams are found, so there is no scientific reason to limit stream protection efforts to one region of the country or to steep-slope mining. In addition, it is not clear that we have authority under SMCRA to conduct rulemaking on a regional basis. Section 101(g) of SMCRA [18] provides that “surface coal 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.” The implication is that the surface coal mining and reclamation standards to which it refers must be national in scope. In addition, section 102(a) of SMCRA [19] provides 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.” (Emphasis added.)

Our primary purpose in adopting this final rule is to strike a better balance between “protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy,” which section 102(f) of SMCRA [20] lists as one of the purposes of SMCRA. Specifically, this final rule will better protect the water resources needed by current and future generations for drinking, recreation, and wildlife from the adverse effects of coal mining, while balancing protection of those resources with the Nation's energy needs.

The final rule published today reflects advances in science and technology, updates 30-year-old regulations, and addresses important stream protection and related issues in a manner consistent with SMCRA, while providing regulatory certainty to operators. State and industry practices helped shape this rule. Many commenters supported the proposed rule and encouraged us to proceed with a final rule.

SMCRA recognizes the importance of nationwide minimum standards for the hydrologic balance by not limiting the provisions related to the hydrologic balance to any particular types of mining or areas of the country as it did with other provisions. Compare, e.g., Section 510(b)(3) [21] (no permit may be issued unless the operation has been “designed to prevent material damage to the hydrologic balance outside the permit area”) with Section 510(b)(5) [22] (alluvial valley floor protections apply only west of the one hundredth meridian west longitude). We have never issued regulations that expressly apply only to a portion of the country without specific statutory language authorizing or mandating adoption of regulations with a geographically-restricted scope. SMCRA provisions with a geographically-restricted scope include sections 510(b)(5) (alluvial valley floors west of the one hundredth meridian west longitude), 527 [23] (special bituminous coal mines west of the one hundredth meridian west longitude), 529 [24] (anthracite coal mines regulated by a state), and 708 [25] (coal mines in Alaska, for a limited time only).

As stated in our analysis in the final EIS, the need for this final rule is to improve implementation of SMCRA, ensure protection of the hydrologic balance, and reduce impacts of surface coal mining operations on streams, fish, wildlife, and related environmental values. The final rule will provide major benefits to water resources, not just in the Appalachian Basin, but also in the Illinois Basin. In addition, this rule will provide moderate benefits to water resources in three other regions—the Colorado Plateau, the Gulf Coast, and the Northern Rocky Mountains and Great Plains.[26] Even if these were the only benefits of the rule, and they are not, the benefits to water resources alone are sufficient to support and justify a nationwide rulemaking.

As we set forth in the proposed rule and in documents in support of the proposed rule, SMCRA provides us with the authority to protect the hydrologic balance from coal mining operations nationwide. Despite that fact and the benefits that could be realized nationwide, some commenters cite data contained in our annual evaluation reports of state regulatory programs in an attempt to show that there is no nationwide problem. According to these commenters, our annual evaluation reports “show that 90 percent of operations were free of any offsite impacts” and “routinely include highly positive narrative reviews of each state's SMCRA program.”

While it is true that our annual evaluation reports routinely do not indicate problems with the states' implementation of their programs, we disagree with the conclusion the commenters attempt to draw from this information, i.e., that our experience does not show that there is a problem that this rule is designed to address. OSMRE inspections and other oversight activities in primacy states, including the annual evaluation reports, focus on the success of state regulatory authorities in achieving compliance with the approved regulatory program for the state. Directive REG-8,[27] which establishes policy and procedures for the evaluation of state regulatory programs, specifies that the offsite impacts identified in annual evaluation reports do not include impacts from mining and reclamation that are not regulated or controlled by the state program. In other words, the annual evaluation reports generally do not identify or discuss situations in which the existing regulations provide inadequate protection. While Directive REG-8 provides discretionary authority for evaluations of impacts that are not prohibited by the regulatory program, that authority may be exercised only if both OSMRE and the state agree to do so, and if they are not characterized as Start Printed Page 93074offsite impacts. Historically, that discretionary authority has not been exercised. Thus, annual reports are of little assistance in assessing how the existing minimum federal standards that are incorporated into the approved state programs could be improved to better implement SMCRA. Part II of the preamble summarizes the water quality and land reclamation problems that developed under the previous rules. In addition, speakers at the public hearings described their experiences with dewatering of streams as a result of subsidence from underground mining operations.

E. We Should Limit the Final Rule to the Effects of Surface Mining Operations and Not Underground Mining Operations

Several commenters requested that we limit the rule to the effects of surface mining operations and not the effects of underground operations. These commenters often questioned the adequacy of our support for extending stream protections to the areas overlying underground mine workings. According to the commenters, the rule would make some methods of underground mining operations impractical and would effectively prohibit underground mining using longwall technology.

Part IV.K. of this preamble summarizes the principal provisions of this rule that directly impact underground mining. The final rule does not preclude any specific method of underground mining either directly (e.g., a prohibition of underground mining) or indirectly (e.g., make underground mining uneconomical or impossible). Our primary focus in the proposed rule was to clarify our position that the obligation to prevent material damage to the hydrologic balance outside the permit area applied to areas overlying the underground workings of an underground mine, which is part of the adjacent area as that term is defined in § 701.5 of our regulations. As explained in more detail in the portion of this preamble that discusses the definition of “material damage to the hydrologic balance outside the permit area” in § 701.5 of our regulations, we have always considered the area overlying the underground workings of an underground mine to be part of the evaluation for prevention of material damage to the hydrologic balance outside the permit area. Although this has been our longstanding position and is clearly mandated by SMCRA, the definition of material damage to the hydrologic balance outside the permit area that we are finalizing today removes any of the ambiguity that may have resulted in this comment. In addition, to address concerns that requiring underground operations to prevent material damage to the hydrologic balance outside the permit area would effectively preclude any underground mining likely to result is subsidence, we have clarified that temporary impacts resulting from subsidence are allowed provided they do not rise to the level of material damage to the hydrologic balance outside the permit area. This issue is discussed in more detail in Part IV, section K of this preamble.

F. We Underestimated the Costs and Regulatory Burden of the Proposed Rule to State Regulatory Authorities and Industry

Numerous commenters expressed concern that the proposed rule would impose significant additional costs on the industry and state regulatory authorities. Many of these commenters alleged that the costs of the proposed rule were grossly understated in the DRIA. Appendix I of the final RIA provides responses to all specific comments on the DRIA.

In response to comments received on the DRIA, as well as in response to recent changes in the coal market, we revised the DRIA to ensure that the final RIA better reflects current circumstances. These changes include:

  • Updated coal market baseline: Since the DRIA was developed conditions in the coal market have changed considerably. As a result, we updated the baseline coal production forecast for the final RIA, which resulted in an almost 20 percent decrease in the level of coal demand and production forecasted under the baseline.
  • Updated regulatory baselines. Since the DRIA was developed, changes to the regulatory environment have occurred, including but not limited to the finalization of the Clean Power Plan and ratification of the Paris Agreement made at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change. Additional climate policy proposals have been advanced that are anticipated to have an effect on coal production nationwide. As a result, we updated the final RIA.
  • Clarified potential impacts of the rule on longwall mining: A number of commenters misinterpreted the proposed rule's impacts on longwall mining. The commenters thought longwall mining would be impossible under the proposed rule, which would result in devastating economic impacts to the underground mining industry. The final rule clarifies that the rule does not prohibit temporary impacts to streams and other water resources as a result of longwall mining as long as those impacts do not rise to the level of material damage to the hydrologic balance outside the permit area. The final RIA continues to reflect the fact that the final rule will not prohibit longwall mining.
  • Incorporated economic impact of bonding requirements: The DRIA did not include costs associated with bonding requirements for restoration of the ecological function of perennial and intermittent streams that are mined through. While the bonding requirements for stream restoration have been revised, the final rule is nonetheless anticipated to result in some additional costs to operators associated with this requirement that were not captured in the DRIA. These additional costs are reflected in the final RIA.
  • Revised administrative costs: A number of commenters remarked that the administrative costs of the proposed rule to industry and state regulatory authorities appeared to be underestimated in the DRIA. Upon further review, we determined that the industry and state regulatory authority administrative costs estimated in the DRIA were not consistent with OSMRE's Paperwork Reduction Act analysis. As a result of updating the RIA to be consistent with the Paperwork Reduction Act calculations, administrative costs for industry and the state regulatory authorities have increased in the final RIA. As discussed below, we also made some changes to the final rule that reduced administrative costs to the state regulatory authorities as well as to industry.
  • Corrected width of streamside vegetative corridor: Some commenters questioned whether the engineering analysis had correctly interpreted the width of the riparian corridor, known as the streamside vegetative corridor in the final rule, which is required to be established adjacent to perennial, intermittent, and ephemeral streams that are mined through under certain circumstances. Upon further review, we determined that the engineering analysis incorrectly assumed that a 100-foot riparian corridor was interpreted as being 50 feet on either side of a restored stream rather than 100 feet on each side. Correction of this incorrect assumption resulted in a modest increase in model mine costs.
  • Revised impacts to small businesses analysis: The Regulatory Flexibility Act Start Printed Page 93075analysis has been revised in the final RIA to reflect the recent changes to the small business size thresholds identified by the Small Business Administration for coal mining companies.
  • Incorporated the social cost of carbon: In response to comments, the final RIA includes an estimate of the benefits related to the social costs of carbon of the final rule.

In summary, compared with the DRIA, the final RIA forecasts lower baseline coal production and increased industry compliance costs. Lower baseline coal production means that the final rule will have fewer adverse impacts to production-related employment and fewer benefits to streams and forests.

The final rule also differs from the proposed rule in several ways that should reduce costs and the regulatory burden on state regulatory authorities and on the industry. The following list provides examples of cost-saving or potentially cost-saving provisions:

  • Applicability to existing operations: We added a new section, 30 CFR 701.16, specifying when the stream protection rule would take effect and to which operations and permit applications it would apply. Existing permits will not be subject to the rule unless they either add acreage or revise the permit to add a new excess spoil fill, coal mine waste refuse pile, or coal mine waste slurry impoundment or move or expand the location of an approved excess spoil fill or coal mine waste facility.
  • Permit application format: We deleted the proposed requirement in 30 CFR 777.11 that permit applicants submit their applications in electronic form. Regulatory authorities and mining companies expressed concern about the expense. Furthermore, we cannot guarantee the availability of grant funds to cover installation of electronic permitting systems by states. However, transition to electronic permitting systems ultimately will result in cost savings and greater efficiencies.
  • Baseline data and monitoring: First, we are not adopting the proposed requirement in 30 CFR 780.19(b) and (c) that the regulatory authority extend the baseline data collection period if the Palmer Drought Severity Index for that period exceeded certain values. The regulatory authority has the discretion to determine whether and how long to extend the baseline data collection period under conditions of extreme drought or abnormally high precipitation. Second, under 30 CFR 780.19(b) and (c), the regulatory authority may modify the interval or the 12-consecutive-month sampling requirement for groundwater and surface water if adverse weather conditions make travel to the sampling location hazardous or if the water at that location is completely frozen. Third, in 30 CFR 780.19, we deleted six baseline data parameters (ammonia, arsenic, cadmium, copper, nitrogen, and zinc) upon which coal mining typically has little impact. Fourth, we added 30 CFR 783.26 and 784.40, which provide that the regulatory authority may allow permittees to submit baseline data and development of water monitoring plans for areas overlying proposed underground mine workings in increments. This will ensure more up-to-date information and avoid unnecessarily high data collection and analysis costs at the time of the initial permit application. It also will reduce monitoring costs.
  • Mining in or near Streams and Excess Spoil: First, we revised the definitions of ephemeral, intermittent, and perennial streams in 30 CFR 701.5 to clarify that only conveyances with channels that have both a bed-and-bank configuration and an ordinary high water mark will be classified as streams. Second, final 30 CFR 780.19(c)(3) and 780.20(a)(5)(iv) do not include the proposed requirements for baseline data and analysis of peak flow magnitude and frequency, actual and anticipated usage, and seasonal flow variations for ephemeral streams. Third, final 30 CFR 780.19(c)(6) does not include the proposed requirement to assess the biological condition of ephemeral streams within the proposed permit and adjacent areas. It also modifies the proposed requirement to assess the biological condition of intermittent streams within the proposed permit and adjacent areas. In the final rule, assessment of the biological condition of intermittent streams within the proposed area and the adjacent area is required if a scientifically defensible protocol has been established for assessment of intermittent streams in the state or region in which the stream is located. But, if a scientifically defensible bioassessment protocol has not been developed in the relevant state or region, a description of the biology of each intermittent stream would be required to determine the biological condition of the intermittent stream. Fourth, final 30 CFR 780.28(g) specifies the best technology currently available for assessment of the restoration of the ecological function of intermittent streams for which no scientifically defensible protocol exists consists of the establishment of standards that rely upon restoration of the form, hydrologic function, and water quality of the stream and reestablishment of streamside vegetation as a surrogate for the biological condition of the stream. Finally, the excess spoil fill construction requirements in final 30 CFR 816.71(k) require only one certified report per calendar quarter and to provide an alternative to daily examinations by an engineer or other specialist.
  • Soils and Revegetation: First, the final rule does not include a provision in proposed 30 CFR 779.19(a) that would have required descriptions of vegetative communities in the adjacent area. In addition, the final rule does not include the requirement in proposed 30 CFR 816.116(b) that revegetation success standards demonstrate restoration of the capability of the land to support all uses that it was capable of supporting before mining.

G. Whether We Should We Revise the Rule To Provide for Direct Enforcement of Water Quality Standards

Section 816.42 in our previous regulations required that discharges of water from areas disturbed by surface mining activities be made in compliance with all applicable state and federal water quality laws and regulations and with the effluent limitations for coal mining operations set forth in 40 CFR part 434. Proposed § 816.42 contained five paragraphs. Proposed paragraph (a) incorporated previous § 816.42 and clarified that permittees must comply with all water quality laws, including effluent limitations in the applicable NPDES permit. Proposed paragraph (b) explicitly incorporated the longstanding requirement for permittees to comply with section 404 of the Clean Water Act [28] if they sought to discharge overburden (including excess spoil), coal mine waste, and other materials into waters of the United States. Proposed paragraphs (c) through (e) established enforceable performance standards requiring proper operation and maintenance of water treatment facilities and environmentally appropriate disposition of precipitates from those facilities.

In the preamble to the proposed rule, we requested comment on whether proposed § 816.42(b) should be informational or directly enforceable under SMCRA.[29] As mentioned, this paragraph required that discharges of overburden (including excess spoil), coal mine waste, and other materials into waters of the United States be made in compliance with section 404 of the Clean Water Act and its implementing Start Printed Page 93076regulations. Commenters were divided on the merits of this issue. Several environmental groups and citizens asked us to make standards under both sections 402 and 404 of the Clean Water Act directly enforceable under SMCRA. These commenters typically suggested changes to proposed § 816.42 to clarify that water quality standards established under the Clean Water Act are directly enforceable under SMCRA. According to these commenters, section 702(a) of SMCRA [30] and prior preamble statements concerning § 816.42 provide authority for direct enforcement of water quality standards under SMCRA. Similarly, these commenters asked us to clarify whether proposed § 816.71(a)(7) (excess spoil) and 816.57(b) (mining in, through, or adjacent to perennial and intermittent streams) require operators to comply with water quality standards and, if so, whether the SMCRA regulatory authorities will directly enforce these water quality standards. Some commenters asked us to provide for direct enforcement of Clean Water Act water quality standards through citizen suits under section 520 of SMCRA.

In contrast, other commenters considered § 816.42 to be unnecessary and duplicative of the Clean Water Act. Some commenters detailed the Clean Water Act's own “robust, but carefully tailored, enforcement scheme[,]” which includes both direct enforcement by the state Clean Water Act authority of any aspect of the Clean Water Act that it has been delegated, enforcement by the U.S. Environmental Protection Agency, enforcement by the U.S. Army Corps of Engineers, and enforcement by citizen suits under the Clean Water Act. These commenters noted that the Clean Water Act does not confer authority on other agencies, such as us or state SMCRA regulatory authorities, to enforce the Clean Water Act, and the SMCRA regulatory authorities are not equipped to do so. Moreover, some commenters claimed that making the provisions of the Clean Water Act directly enforceable under SMCRA would directly conflict with the Clean Water Act because it would give a state with SMCRA primacy the direct authority to enforce violations of the Clean Water Act—even where that state does not have full delegation to administer Clean Water Act programs. These commenters generally urged us to consider this paragraph as informational or to remove it altogether.

In developing the approach we adopted in the final rule about the direct enforcement of Clean Water Act provisions under SMCRA, we considered the applicable requirements of SMCRA in light of an overarching purpose of SMCRA: To protect society and the environment from the adverse effects of coal mining operations.[31] Section 510(b)(3) of SMCRA specifically provides that coal mining operations must be designed to prevent material damage to the hydrologic balance outside the permit area.[32] Likewise, section 508(a)(9) of SMCRA provides that a permit application must include “the steps to be taken to comply with applicable air and water quality laws and regulations[,]” [33] and section 702(a) of SMCRA provides that nothing in SMCRA “shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act or any rule or regulation promulgated under the Clean Water Act.[34] Thus, while we cannot supersede the Clean Water Act, under SMCRA, regulatory authorities do have a duty to ensure that surface coal mining operations are permitted, operated, maintained, and reclaimed in a manner that complies with the Clean Water Act, which includes, but is not limited to, compliance with NPDES permits and water quality standards.

Section 816.42 of the final rule is the primary regulation that sets forth the duty under SMCRA for coal mining operations to comply with the Clean Water Act. This regulation is tailored to accomplish this objective while avoiding conflicts between SMCRA regulatory authorities and Clean Water Act authorities about what constitutes a Clean Water Act violation. In particular, final § 816.42(a) clarifies that neither this section of the final rule, nor any action taken pursuant to it, supersedes or modifies the authority or jurisdiction of federal, state, or tribal agencies responsible for administration, implementation, and enforcement of the Clean Water Act including decisions that those agencies make pursuant to the authority of the Clean Water Act. This includes decisions on whether a particular set of facts constitutes a violation of the Clean Water Act.

With regard to enforcement under SMCRA, final rule § 816.42(b)(1) retains our longstanding regulatory requirement that coal mining operations must comply with all applicable water quality laws and regulations, including the effluent limitations set by Clean Water Act authorities in NPDES permits under section 402 of the Clean Water Act.[35] Since our final rulemaking in 1982 was promulgated to be consistent with effluent limits established by the U.S. Environmental Protection Agency, our regulations have required that discharges from coal mining operations be in accordance with a valid NDPES permit and that this is a performance standard directly enforceable under SMCRA.[36] This approach has been upheld by the Interior Board of Land Appeals and has been expressly incorporated by several regulatory authorities.[37] Direct enforcement of the NPDES effluent limitations typically begins with an inspector for the SMCRA regulatory authority conducting a routine inspection.[38] During these inspections, water samples are taken from sediment pond discharges to verify compliance with the SMCRA permits, which incorporates the NDPES effluent limitations by reference. When violations of those standards are found, a SMCRA notice of violation is issued requiring the violation to be corrected.

With the final rule, we are changing this process slightly. In response to Federal agency comments, we have revised final § 816.42(b)(1) to require the SMCRA regulatory authority to add an additional step to the end of the process: Notification of the appropriate Clean Water Act authority of any notice of violation issued under SMCRA for a violation of an effluent limit. We also added a provision requiring the SMCRA regulatory authority to coordinate with the Clean Water Act authority whenever necessary to determine if a violation exists. This provision is intended to address those situations where there may be some uncertainty as to whether in fact a violation exists. In addition to ensuring that there is no ambiguity about the requirement for a permittee to comply with NPDES effluent limits under SMCRA, we have added paragraph (i) to final rule § 773.17, which requires the regulatory authority to condition every permit on compliance with all effluent limitations and conditions in any NDPES permit issued by the Clean Water Act authority.

With regard to enforcement of water quality standards, § 816.42(b)(2) was also added to make it clear that coal mining operations cannot cause or contribute to a violation of any applicable water quality standards. In addition, in response to comments, we Start Printed Page 93077have added language similar to that contained in § 816.42(b)(2) to final § 816.57(a)(2) to clarify that activities in, near, or through streams may not cause or contribute to a violation of applicable water quality standards. Similarly, in response to comments, we adopted a provision in final § 816.71(a)(7) which provides that the permittee or operator must place excess spoil in a manner that will ensure that the fill will not cause or contribute to a violation of applicable water quality standards adopted under the authority of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), for surface water downstream of the toe of the fill.

In addition § 816.42(c) of the final rule mirrors proposed paragraph (b) and provides that discharges of overburden, coal mine waste, and other materials into waters subject to the jurisdiction of the Clean Water Act, must be made in compliance with section 404 of the Clean Water Act.[39]

In order to better ensure compliance with sections 508(a)(9), 510(b)(3), and 702(a)(3) of SMCRA and address concerns about the role of the regulatory authority in assessing violations related to water quality standards and section of the Clean Water Act, we added final rule § 816.42(d). This provision requires that the regulatory authority investigate any situation in which it has information indicating that mining activities may be causing or contributing to a violation of the water quality standards to which paragraph (b)(2) of this section refers, or to a violation of section 404 of the Clean Water Act to which paragraph (c) refers. When conducting an investigation the SMCRA regulatory authority will coordinate with the appropriate Clean Water Act authority. The purpose of the coordination is to ensure that both agencies assess the most appropriate course of corrective action to remedy any confirmed violation. However, nothing in this section precludes the SMCRA regulatory authority from initiating enforcement action independently of the Clean Water Act authority. In fact, because the SMCRA regulatory authority is statutorily obligated to take immediate enforcement action when any “permittee is in violation of any requirement of this Act, which condition, practice, or violation also creates an imminent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources” [40] it may be necessary for the SMCRA regulatory authority to act, at least initially, independently of the Clean Water Act authority. In such a situation, after coordination with the Clean Water Act authority additional enforcement action may be necessary by the SMCRA regulatory authority, the Clean Water Act authority, or both. This process of coordination more fully satisfies the mandates of section 702(a) of SMCRA.[41]

Some commenters also requested that we explicitly allow citizens to enforce water quality standards through citizen suits. In our proposed rule, we did not propose any changes or ask for comment on the enforcement of water quality standards through SMCRA citizen suits. Nothing in the proposed or final rule was intended to alter or inhibit the ability to initiate citizen suits under SMCRA,[42] the Clean Water Act,[43] or the Endangered Species Act.[44] Moreover, we consider any questions about the extent of enforcement under the citizen suit provision of SMCRA to be beyond the scope of this rule.

H. We Should Define “Existing Uses” To Be Consistent With Clean Water Act Terminology

The proposed rule contained numerous regulations that refer to “existing uses” in the context of uses of groundwater and surface water. With respect to surface water, the regulations at 40 CFR 131.3(e) implementing the Clean Water Act defines “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.” We did not propose to define “existing uses” in the proposed rule, but we stated in the preamble that we interpret the term “existing uses” as meaning those uses in existence at the time of preparation of the permit application, regardless of whether those uses are designated uses under section 303(c) of the Clean Water Act.[45] See 80 FR 44475 (Jul. 27, 2015). We also stated in the preamble that, alternatively, we might replace the term “existing uses” with “premining uses” for purposes of clarity. Id. We invited comment on which course of action we should take.

One commenter stated that the term “existing uses” is acceptable as long as we distinguish between existing uses and designated uses. Another commenter found our de facto definition (“those uses in existence at the time of the preparation of the permit application”) to be potentially less protective than, and therefore inconsistent with, the Clean Water Act definition of “existing uses” at 40 CFR 131.3(e). The commenter asserted that, in the context of a permit application prepared in 2016 for a watershed that had no mining activity before November 28, 1975, the existing uses in 2016 likely would be more impaired than the existing uses before November 28, 1975. Preserving the “existing uses” at the time of the new 2016 mining application might simply perpetuate the existing level of impairment caused by prior mining in the same watershed. The commenter argued that our rules must provide at least the same level of protection as the Clean Water Act definition. The commenter recommended that our rules use the term “premining uses” and that we interpret that term as meaning all uses in existence at the time of the enactment of SMCRA. According to the commenter, the statutory mandate to prevent material damage to the hydrologic balance outside the permit area means that the rule must extend protection to all water sources impaired by mining since SMCRA was enacted in 1977.

Our rule implements SMCRA, not the Clean Water Act, so we are under no obligation to adopt the same definition of “existing uses” that has been adopted under the Clean Water Act, especially when our definition pertains to a term (material damage to the hydrologic balance outside the permit area) that does not appear in the Clean Water Act. We also have not discovered any support for the commenter's assertion that Congress intended that we look back to the baseline conditions on the date of enactment of SMCRA (August 3, 1977) to determine whether an operation is preventing material damage to the hydrologic balance outside the permit area. In addition to the practical difficulty of determining the baseline condition of water bodies on a date almost four decades ago, there is no statutory support for viewing the date that SMCRA was enacted as the baseline for determining whether an operation will prevent material damage to the hydrologic balance outside the permit area. To the contrary, SMCRA indicates that such a finding should be made at the time of permit application. For instance, section 510(b)(3) of SMCRA [46] provides that the regulatory authority may not approve any application for a Start Printed Page 93078permit or permit revision unless the regulatory authority finds that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Thus, this section implies that the finding on material damage to the hydrologic balance outside the permit area should be based upon the assessment of the cumulative hydrologic impact of all anticipated mining in the watershed. That assessment looks forward to future impacts, not backward to impacts that have occurred since 1977.

To avoid confusion with the term “existing uses” as employed under the Clean Water Act, however, we have decided to replace the term “existing uses” with “premining uses.” We intend no change in practical effect by this change in terminology because “premining uses” are the uses in existence at the time of preparation of the permit application or, in other words, the conditions in existence before the proposed or current operation. There are some places in the regulations, primarily related to approximate original contour, where we address conditions in existence before any mining activities. In those instances, we do not use the term premining. Instead, we refer to conditions “prior to any mining” or “before any mining”. For consistency in terminology, we are making these changes with respect to both groundwater and surface water.

I. We Should Remove Provisions That Are Duplicative of or Inconsistent With the Clean Water Act

Several commenters asserted that the proposed rule was inconsistent with SMCRA and would conflict with or duplicate the requirements of other federal laws—primarily the Clean Water Act. As support, many of these commenters cited Section 702 of SMCRA, which provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing . . . any of the following Acts or with any rule or regulation promulgated thereunder, including, but not limited to . . . [t]he Federal Water Pollution Control Act, as amended, the State laws enacted pursuant thereto, or other Federal laws relating to the preservation of water quality.” [47] They also cited In re Surface Mining Regulation Litigation, 627 F.2d 1346 (D.C. Cir. 1980) where the court held that we exceeded our authority by issuing effluent limitations more stringent than those issued by EPA under the Clean Water Act. Id. at 1366-1367.

These commenters typically failed to appreciate the significance of the court's further holding in that case: “where the [Clean Water Act] and its underlying regulatory scheme are silent so as to constitute an `absence of regulation' or a `regulatory gap', the Secretary may issue effluent regulations without regard to EPA practice so long as he is authorized to do so under the Surface Mining Act.” Id. at 1367 (emphasis added). Thus, the court expressly held that we, under the authority of SMCRA, could issue regulations to address the hydrologic impacts of coal mining operations that are not adequately addressed under the Clean Water Act. In this final rule, consistent with this ruling, we are using our SMCRA authority to fill many of the very regulatory gaps that the Court mentioned in In re Surface Mining Regulation Litigation. See, e.g., id. (gaps in the Clean Water Act include, but are not limited to, “discharges from abandoned and underground mines or from nonpoint sources” and the ability “to establish standards “requiring comprehensive preplanning and designing for appropriate mine operating and reclamation procedures `to ensure protection of public health and safety and to prevent the variety of other damages to the land, the soil, the wildlife, and the aesthetic and recreational values that can result from coal mining.' ”).

Several commenters argued that this rule was not, in fact, filling regulatory gaps, but instead was creating a regime that would be inconsistent with the Clean Water Act and associated water quality laws and would improperly require SMCRA regulatory authorities to set water quality standards and enforce the Clean Water Act. We disagree. The Clean Water Act is designed to cover many industries and activities. SMCRA, by contrast, is designed to regulate the environmental impacts of one specific industry. This distinction is significant because the later-enacted statute, SMCRA, unlike the Clean Water Act, provides for the regulation of the environmental impacts, including the hydrologic impacts, of all phases of mining operations—design, operation, and reclamation. Absent SMCRA, coal mining operations that impact waters outside the permit area would be subject only to the limited regulation authorized by the Clean Water Act. By including requirements in SMCRA to regulate the effects of coal mining on water and hydrologic balance,[48] Congress clearly indicated that it intended to go beyond the protections it had afforded in the Clean Water Act. In SMCRA, Congress required the development of focused design requirements and performance standards for surface coal mining operations, including numerous standards related to water and the hydrologic balance. Thus, as long as these SMCRA standards do not conflict with the Clean Water Act, regulation under SMCRA will complement the Clean Water Act standards and requirements, which means that the final rule legitimately fits within the confines of what Congress intended.

Although nothing in the proposed rule conflicts with the Clean Water Act, because of commenters' concerns and to better effectuate our intent to improve coordination with Clean Water Act authorities, we modified the proposed rule in several key respects. We discuss these changes in more detail in the section-by-section analysis of the final rule.[49]

Some commenters alleged that our proposed rule would conflict with the Clean Water Act because it does not afford the same degree of flexibility that the statute does. However, our rule does not reduce the flexibilities afforded to operators under the Clean Water Act. Under our final rule, mining operations may not preclude attainment of any designated uses under the Clean Water Act, if such uses have been established. Precluding such designated uses would constitute material damage to the hydrologic balance outside the permit area under SMCRA. However, if no designated use exists, the standard becomes whether the operation is precluding any premining use of surface water outside the permit area.

One commenter asserted that designated uses under the Clean Water Act are “aspirational and cannot be met due to ambient values or nonpoint sources” and requested that we better explain what should occur in such situations. Another commenter raised similar concerns about how this proposed rule would account for the “flexible and adaptive implementation” of Clean Water Act standards. This commenter cited use attainability analysis, variances, and compliance Start Printed Page 93079schedules and deadlines as examples of the flexible implementation inherent in Clean Water Act implementation. To the extent that the Clean Water Act provides flexibility, this final rule does not supersede, amend, modify, repeal, or otherwise conflict with the Clean Water Act. In addition, contrary to comments made by other commenters, SMCRA allows for some environmental impacts caused by mining; however, these are not without limitation. For example, section 515(b)(10) of SMCRA [50] requires that surface coal mining and reclamation operations minimize 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 groundwater systems, which means that some damage is permissible. However, section 510(b)(3) of SMCRA [51] effectively prohibits approval of a permit application unless the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

J. We Should Remove the Provisions That Grant “Veto Power” Over SMCRA Permits to the U.S. Fish and Wildlife Service

Multiple commenters alleged that the proposed rule gave the U.S. Fish and Wildlife Service (FWS) “veto power” over issuance of SMCRA permits. Specifically, the commenters expressed concern that proposed §§ 779.20(d)(2)(iv) and 780.16(e)(2)(iv), would subordinate state permitting authority to the FWS because those provisions specified that the regulatory authority may not approve a permit application until all issues related to the Endangered Species Act of 1973 [52] are resolved and the regulatory authority has received written documentation from the FWS that all such issues have been resolved.

In the final rule, we replaced proposed §§ 779.20(d)(2)(iv) and 780.16(e)(2)(iv) with a single consolidated provision in § 780.16(b)(2). That provision specifies that the regulatory authority may not approve a permit application before it finds that there is a demonstration of compliance with the Endangered Species Act through one of the mechanisms listed in § 773.15(j) of the final rule.

Nothing in SMCRA supersedes the Endangered Species Act or exempts surface coal mining operations from compliance with applicable provisions of that law and the implementing regulations. Sections 7(a)(1), (2) and (4) of the Endangered Species Act of 1973 provide authority for adoption of the regulations referenced above, which are intended to ensure that surface coal mining and reclamation operations conducted under approved state and federal SMCRA regulatory programs avoid violations of the Endangered Species Act. Section 7(a)(1) of the Endangered Species Act [53] directs federal agencies to use their authorities to further the purposes of the Endangered Species Act. Section 7(a)(2) of the Endangered Species Act [54] requires all federal agencies, in consultation with FWS or the National Marine and Fisheries Service,[55] to ensure that their actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. Section 7(a)(4) of the Endangered Species Act [56] requires federal agencies to confer with the FWS on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed. Other sources of authority for this rule are sections 515(b)(24), 515(b)(10), 515(b)(17), and 201(c)(2) of SMCRA.[57]

Section 4 of the Endangered Species Act directs the Secretary of the Interior, through the FWS, to list threatened or endangered species of fish and wildlife or plants and to designate critical habitat for those species.[58] The Endangered Species Act prohibits the unauthorized “take” of listed species,[59] a prohibition that applies to all persons and entities, including coal mine permittees and state regulatory authorities.[60]

The Endangered Species Act provides several routes by which applicants may demonstrate compliance. An applicant may demonstrate that the proposed actions would have no effect on listed species. If the proposed action may affect a listed species or destroy or cause adverse modifications to designated critical habitat, the applicant must consult with the FWS under section 7 [61] of the Endangered Species Act for federal permits or for mining plan approvals involving leased federal coal. Alternatively, the applicant may utilize the procedures of section 10 [62] of the Endangered Species Act for state permits on non-federal lands. Some applicants have obtained incidental take coverage by complying with the terms of a biological opinion that establishes a process for obtaining incidental take coverage that is significantly less time-consuming and less resource-intensive than the individual section 7 or section 10 processes. An applicant seeking to obtain incidental take coverage under a biological opinion, must comply with all the procedures, terms, and conditions of the biological opinion. We do not, however, require an applicant to use a biological opinion to obtain coverage. A biological opinion merely provides one avenue by which an applicant may obtain the coverage it needs against civil or criminal liability [63] for unauthorized take of threatened or endangered species in violation of the Endangered Species Act.

Paragraphs (j)(1) through (4) of final § 773.15 list four pathways by which the applicant and the regulatory authority may document compliance with the Endangered Species Act for surface coal mining and reclamation operations conducted under a SMCRA regulatory program. Paragraph (j)(1) applies when the applicant can document that the proposed surface coal mining and reclamation operations would have no effect on species listed or proposed for listing as threatened or endangered or on designated or proposed critical habitat. The joint U.S. Fish and Wildlife Service and National Marine Fisheries Service “Final Endangered Species Act Section 7 Consultation Handbook” (March 1998) states that the term “effect” means any impact, regardless of the severity or whether the impact is positive or negative.[64] Further, the implementing Endangered Species Act regulations found at 50 CFR 402.02, define “effects of the action” in relevant part as “the direct and indirect effects of an action on the species or critical Start Printed Page 93080habitat, together with the effects of other activities that are interrelated or interdependent with that action.”

Paragraphs (j)(2) through (4) apply when the proposed surface coal mining and reclamation operations may have an effect on species listed or proposed for listing as threatened or endangered or on designated or proposed critical habitat for those species. Paragraph (j)(2) allows an applicant to obtain protection against liability for incidental take of a threatened or endangered species by documenting compliance with a valid biological opinion that covers issuance of permits for surface coal mining operations and the conduct of those operations under the applicable regulatory program. Through the process of completing a section 7 consultation on the continuation of existing permits and the approval and conduct of future surface coal mining and reclamation operations under both state and federal regulatory programs adopted pursuant to SMCRA, as modified by this rule, OSMRE and the U.S. Fish and Wildlife Service entered into a Memorandum of Understanding to improve interagency coordination and cooperation to ensure that proposed, threatened, and endangered species and proposed and designated critical habitat are adequately protected for all surface coal mining and reclamation permitting actions, including exploration operations, initial permit issuance, renewals, and significant revisions. The MOU complements the U.S. Fish and Wildlife Service's 2016 programmatic Biological Opinion. Thus, compliance with the terms of that biological opinion and the MOU would satisfy final paragraph (j)(2).

Final paragraph (j)(3) applies where we are the regulatory authority or where a mining plan is required under part 746 of our regulations to mine leased federal coal. This provision specifies that the applicant may provide documentation that interagency consultation under section 7 of the Endangered Species Act has been completed for the proposed operation. The provision may also apply in the case where other federal permits are required for the proposed operation, depending upon the scope of the formal consultation. Paragraph (j)(4) provides an alternative that applies where a state regulatory authority is responsible for permitting actions and the proposed operation does not involve leased federal coal, and the operator does not utilize paragraph (j)(2) or (j)(3), where applicable. It specifies that the applicant may provide documentation that the proposed operation is covered under a permit issued pursuant to section 10 of the Endangered Species Act of 1973.

K. We Should Better Explain How the Definitions of “Material Damage” and “Material Damage to the Hydrologic Balance Outside the Permit Area” Apply to Underground Mining Operations

Section 701.5 contains definitions of both “material damage” and “material damage to the hydrologic balance outside the permit area.” Many commenters asked that we make revisions to better distinguish between the definitions and clarify how they apply to underground mining operations. These commenters correctly note that section 510(b)(3) of SMCRA requires mine operators to prevent “material damage to the hydrologic balance outside the permit area” but section 516(b)(1) of SMCRA requires prevention of “material damage” caused by subsidence from underground operations to the extent technologically and economically feasible.[65] As specified in its definition, the term “material damage” applies only to our subsidence control provisions at §§ 784.30 and 817.121, which are applicable to underground mining operations.

As finalized, the definition of the term “material damage to the hydrologic balance outside the permit area” applies generally to “an adverse impact . . . resulting from surface coal mining and reclamation operations, underground mining activities, or subsidence associated with underground mining activities.” These two definitions are intended to ensure that all provisions of SMCRA are given effect—material damage to the hydrologic balance outside the permit area is prevented while material damage caused by subsidence is minimized to the extent technologically and economically feasible.

Numerous commenters expressed concern about the potential implications of applying the term “material damage to the hydrologic balance outside the permit area” to underground mining activities and subsidence. These commenters objected to application of the definition of “material damage to the hydrologic balance outside the permit area” to areas overlying the underground workings, which are part of the “adjacent area” as defined in § 701.5. They indicated that subsidence can cause a range of different impacts on water quantity and quality, including loss of flow through surface fracturing of the stream bed, loss of recharge due to a drop in the groundwater table below the stream bed elevation, loss of water supply sources like springs and seeps, and increased pollutant loadings; e.g., iron, aluminum, and sulfate, caused by fracturing of the overburden. They noted that these types of hydrologic impacts are often temporary. According to the commenters, if the rule categorically required the prevention of temporary and permanent hydrologic impacts, some types of underground mining, such as longwall mining or other methods using planned subsidence, could not occur because those hydrologic impacts cannot be completely prevented.

We find that many of the concerns raised in the comments are overstated.

As noted previously, section 510(b)(3) of SMCRA [66] requires mine operators to prevent “material damage to the hydrologic balance outside the permit area” but section 516(b)(1) of SMCRA [67] requires prevention of “material damage” caused by subsidence from underground operations to the extent technologically and economically feasible. In keeping with these different and distinct provisions of SMCRA we clarified that not all of the impacts that the commenters described would necessarily rise to the level of material damage to the hydrologic balance outside the permit area. The regulatory authority is required to make a determination whether a permittee's proposed operation is designed to prevent material damage to the hydrologic balance outside the permit area. If the regulatory authority determines that it does cause material damage to the hydrologic balance outside the permit area, a permit will not be issued. Such a situation would occur whenever an adverse impact from subsidence permanently diminishes flow (i.e., dewaters) of an intermittent or perennial stream to the extent that applicable water quality standards would not be met, or if no water quality standard has been established, the premining use would not be attained. However, a regulatory authority may determine that proposed subsidence-related material damage to surface water or groundwater can and will be repaired so that it still meets applicable water quality standards, or, if no water quality standard exists or is applicable, it still attains its premining use. Diminished flow within a short section of a stream segment over a longwall panel that recovers within a brief period of time or is repairable may have no discernible impact on attainment of water quality Start Printed Page 93081standards or premining uses and therefore may not constitute material damage to the hydrologic balance outside the permit area. The regulatory authority will make a determination on whether subsidence damage to wetlands, streams, or other water bodies that can be corrected, or that will recover naturally, constitutes material damage to the hydrologic balance outside the permit area; if it does not rise to the level of material damage to the hydrologic balance outside the permit area, it may be allowed.

We have clarified and revised language in the final rule to ensure that longwall mining and other underground mining methods that use planned subsidence would not be prohibited, and that temporary impacts are allowed so long as they do not rise to the level of material damage to the hydrologic impacts outside of the permit area. SMCRA is clear that the regulatory authority may not approve any permit application for a surface coal mining operation, including one that involves underground mining activities, unless the application affirmatively demonstrates, consistent with final rule § 773.15, 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.[68] Any material damage to the hydrologic balance outside the permit area is unacceptable, including damage from subsidence, even if it is temporary. As mentioned above, such a situation could occur, for example, when subsidence causes a stream to dewater to the point that the stream can no longer support its water quality standard, or if no water quality standard exists, its premining use. If it is determined that a proposed operation would have this result, the operational plan would need to be modified to prevent subsidence of the stream. That modification could include the use of underground mining technology that prevents subsidence, such as room-and-pillar mining, for that portion of the operation. In order to clarify the obligation of the permittee to prevent material damage to the hydrologic balance outside the permit area, while recognizing that temporary subsidence-related material damage is almost certain to occur at planned subsidence operations, we have added new language to § 817.34(a)(2). This new language makes it clear that while underground operations must prevent material damage to the hydrologic balance outside the permit area, temporary subsidence related material damage that can be repaired or recover naturally may be allowed under § 817.121(c). As noted previously, however, given the different requirements of section 510(b)(3) and section 516(b)(1) of SMCRA,[69] the obligation to prevent material damage to the hydrologic balance outside the permit area, as required at section 510(b)(3) of SMCRA is not subject to the provision at section 516(b)(1) of SMCRA which requires prevention of material damage from subsidence to the extent technologically and economically feasible. An operator will not be granted an exemption from complying with material damage to the hydrologic balance outside the permit area based upon technological and economic feasibility where subsidence damage will result in material damage to the hydrologic balance outside the permit.

We have also addressed comments about the effects of subsidence on land and waters overlying underground mine workings by revising our proposed definition of “material damage” and our subsidence control provisions at § 784.30 (previously located at § 784.20), and § 817.121. In addition to addressing concerns raised by commenters about the magnitude and longevity of subsidence-related impacts to streams, these changes will help reduce the confusion identified by one commenter regarding the application of material damage to certain features in the subsidence context.

The definition of “material damage” in § 701.5 of the final rule applies only in the context of the subsidence control provisions of §§ 784.30 and 817.121. Among other things, the definition as adopted in this final rule specifies that material damage includes “[a]ny functional impairment of surface lands, features (including wetlands, streams, and bodies of water), structures, or facilities.” Under § 784.30(c), mining may still occur when those features exist or may be materially damaged, provided that the applicant submits a subsidence control plan and the regulatory authority approves that plan. Among other requirements, the subsidence control plan must describe the anticipated effects of planned subsidence on wetlands, streams, and water bodies and the measures to be taken to mitigate or remedy any subsidence-related material damage to those features.[70] In addition, pursuant to § 817.121(c) and (g), the underground mine operator must repair damage to surface land and waters, including wetlands, streams, and water bodies, to a condition capable of maintaining the value and reasonably foreseeable uses that the land was capable of supporting before subsidence damage occurred unless the regulatory authority determines that restoration is not technologically or economically feasible. If those repairs will not be implemented within 90 days, the permittee must bond the area as discussed in the preamble to final § 817.121(g)(3)(i).

These revisions are consistent with our longstanding position about subsidence-related material damage. For instance, in our final rule addressing the subsidence provisions of the Energy Policy Act of 1992,[71] we stated:

The term material damage, in the context of §§ 784.20 and 817.121 of this chapter, means any functional impairment of surface lands, features, structures or facilities. The material damage threshold includes any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses, or that causes significant loss in production or income, or any significant change in the condition, appearance or utility of any structure or facility from its pre-subsidence condition. It would also include any situation in which an imminent danger to a person would be created.[72]

Nothing in this final rule alters the meaning of the term “functional impairment” in the context of subsidence-related material damage. In addition, the preamble to the 1995 rules states that “[t]he definition of `material damage' covers damage to the surface and to surface features, such as wetlands, streams, and bodies of water, and to structures or facilities.” [73] Consistent with that preamble description, the addition of the phrase “wetlands, streams, and water bodies” to our material damage definition should help clarify the applicability of the definition to hydrologic features in the subsidence context and ensure those damages are corrected in accordance with § 817.121.

The final rule includes language that requires the regulatory authority, when reviewing the determination of the probable hydrologic consequences of the operation in accordance with § 784.20 and the hydrologic reclamation plan in accordance with § 784.22, to (i) make a reasonable effort to assess the potential effects of subsidence from the proposed underground mining activities on streams and (ii) include remedial measures for any predicted diminution of streamflow as a result of subsidence. In summary, the final rule allows Start Printed Page 93082material damage to wetlands, streams, and water bodies to occur so long as the permittee follows the subsidence control provisions in §§ 784.30 (subsidence control plan), 817.40 (water supply replacement), and 817.121 (subsidence prevention and control and correction of damage resulting from subsidence). Following these regulations means that water supplies will be replaced and that, to the extent technologically and economically feasible, wetlands, streams, and water bodies will be restored. In addition, we added § 817.121(c)(2), which requires that the permittee implement fish and wildlife enhancement measures, as approved by the regulatory authority in a permit revision, to offset subsidence-related material damage to wetlands or a perennial or intermittent stream when correction of that damage is technologically and economically infeasible. As long as these regulations are followed, subsidence damage from an underground mining operation that does not rise to the level of material damage to the hydrologic balance outside the permit area is allowed.

L. We Should Specify the Location Where an Operation Must Prevent Material Damage to the Hydrologic Balance Outside the Permit Area

A commenter suggested that we provide guidance on the location of the point of compliance for determining material damage to the hydrologic balance. Section 510(b)(3) of SMCRA [74] prohibits the approval of a permit application unless the application demonstrates and the regulatory authority finds in writing that the proposed operation has been designed to prevent material damage to hydrologic balance outside the permit area. Our existing definition of “permit area” in § 701.5 of our regulations provides that the permit area means “the area of land, indicated on the approved map submitted by the operator with his or her application, required to be covered by the operator's performance bond under subchapter J of this chapter and which shall include the area of land upon which the operator proposes to conduct surface coal mining and reclamation operations under the permit, including all disturbed areas; provided that areas adequately bonded under another valid permit may be excluded from the permit area.” [75] Our existing regulations in § 701.5 define “disturbed area” to mean “an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations.” [76] When the definition of “material damage to the hydrologic balance outside the permit area” that we are finalizing today is read in conjunction with the existing definitions of “permit area” and “disturbed area,” it is clear that the point of compliance for preventing material damage to the hydrologic balance outside the permit area is any point outside those areas of the permit boundary as indicated on the approved permit application map. The area inside the permit boundary where overburden is removed or where other mining activities occur that are required to be bonded for reclamation comprise the limits of the disturbed area. Any discharge, including those inside the permit area, must be in compliance with applicable Clean Water Act provisions as provided in § 816.42 of our final regulations; in addition, such discharges must not be comprised of toxic mine drainage and cannot result in material damage to the hydrologic balance outside the permit area.

The areas outside the permit area that may be impacted by mining activities are within the “adjacent area” as that term is defined in § 701.5. Generally, paragraph (1) of the definition of “adjacent area” includes the area outside the proposed or actual permit area within which there is a reasonable probability of adverse impacts from surface coal mining operations or underground mining activities. Moreover, the area comprised within this term will vary with the context in which a regulation uses this term. For example, the nature of the resource or resources addressed by a regulation in which the term “adjacent area” appears will determine the size and other dimensions of the adjacent area for purposes of that regulation.

For underground mines, paragraph (2) of the definition specifies that the adjacent area includes, “at a minimum, the area overlying the underground workings plus the area within a reasonable angle of dewatering from the perimeter of the underground workings.” Thus, surface water and groundwater outside the permit area, but within the adjacent area, must be protected from material damage to the hydrologic balance outside the permit area. We discuss other issues pertaining to the term “material damage to the hydrologic balance outside the permit area” in the preamble to the definition of that term.

M. What is the relationship among material damage thresholds, evaluation thresholds, and water monitoring requirements?

Material Damage Thresholds

Section 510(b)(3) of SMCRA [77] provides 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. The regulatory authority must base this finding on an “assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance.” Our rules refer to that assessment as the cumulative hydrologic impact assessment (CHIA). See, e.g., 30 CFR 780.21. Our rules also designate the area for which the CHIA is prepared as the “cumulative impact area,” which section 701.5 of this final rule defines generally as any area within which impacts resulting from a 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 anticipated mining will have during mining and reclamation until final bond release.

The regulatory authority prepares the CHIA after technical review of the permit application is complete, using both the information in the application and other available data about the cumulative impact area. The application components most critical to preparation of the CHIA are the baseline data on surface water and groundwater; the “determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site,” required by section 507(b)(11) of SMCRA; [78] which we generally refer to as the PHC determination, and the hydrologic reclamation plan required by section 508(a)(13) of SMCRA.[79] Section 780.20 of this final rule includes requirements for the PHC determination, while § 780.22 contains requirements for the hydrologic reclamation plan.

Section 780.21(b)(6) of this final rule provides that the regulatory authority must identify site-specific numeric or narrative material damage thresholds for each permit as part of the CHIA and include those thresholds as a condition Start Printed Page 93083of the permit. These material damage thresholds will become the basis for the regulatory authority to objectively determine if a mining operation has prevented material damage to the hydrologic balance outside the permit area.

In developing thresholds to define when material damage to the hydrologic balance outside the permit area would occur in connection with a particular permit, final § 780.21(b)(6)(i) specifies that the regulatory authority will, in consultation with the Clean Water Act authority, as appropriate, undertake a comprehensive evaluation that considers the baseline data collected under § 780.19 of the final rule, the probable hydrologic consequences determination prepared under § 780.20 of the final rule, applicable water quality standards adopted under the authority of section 303(c) of the Clean Water Act,[80] applicable state or tribal standards for surface water or groundwater, ambient water quality criteria developed under section 304(a) of the Clean Water Act,[81] the biological requirements of any species listed as threatened or endangered under the Endangered Species Act of 1973,[82] and other pertinent information and considerations to identify the parameters for which thresholds are necessary and what numeric or narrative thresholds to use. Final § 780.21(b)(6)(ii) specifies that the regulatory authority must, after consulting with the Clean Water Act authority, use numeric material damage thresholds when possible for contaminants that have water quality criteria set by the Clean Water Act.[83] For contaminants, that do not have water quality criteria set, the material damage thresholds can be either numeric or narrative.

Final § 780.21(b)(6)(iii) requires that the regulatory authority identify the portion of the cumulative impact area to which each material damage threshold applies. This provision recognizes that the parameters selected and material damage threshold levels may vary within the cumulative impact area when appropriate, based upon differences in watershed characteristics and variations in the geology, hydrology, and biology of the cumulative impact area. For instance, if the operation would create point-source or nonpoint-source discharges to more than one receiving stream, material damage thresholds for surface water may vary from one watershed within the cumulative impact area to another, taking into consideration differences in watershed characteristics. Similarly, material damage thresholds for groundwater may vary from one part of the cumulative impact area to another to reflect variations in the geology or subsurface hydrology of the cumulative impact area. Regulatory authorities should closely coordinate with the relevant state agencies in identifying appropriate material damage thresholds for groundwater.

Material damage thresholds apply at all points outside the permit area. Final § 780.21(b)(6)(iv), therefore, provides that in the CHIA, the regulatory authority, must identify the points within the cumulative impact area at which the permittee will monitor the impacts of the operation on surface water and groundwater outside the permit area and explain how those locations will facilitate timely detection of the impacts of the operation on surface water and groundwater outside the permit area.

Evaluation Thresholds

In the preamble to the proposed rule,[84] we invited comment on whether the final rule should require that the regulatory authority establish corrective action thresholds. We explained that corrective action thresholds would consist of values for water quality or quantity that, while not constituting material damage to the hydrologic balance outside the permit area, provide reason for concern that such damage may occur in the future if no corrective action is taken. We received comments both supporting and opposing the development of corrective action thresholds. After considering the comments received, we decided to include a requirement in this final rule for thresholds of this nature, for the reasons discussed in the preamble to § 780.21(b)(7).

However, the final rule uses the term “evaluation thresholds” rather than “corrective action thresholds” because exceedance of this type of threshold does not necessarily require initiation of corrective action. Instead, an evaluation threshold identifies the point at which the regulatory authority must investigate the cause of an adverse trend in water quality or quantity outside the permit area. If the investigation finds that the mining operation is responsible for the adverse trend and that the adverse trend is likely to continue in the absence of corrective action, § 780.21(b)(7)(ii) of the final rule requires that the regulatory authority issue a permit revision order under § 774.10. That order must require that the permittee reassess the adequacy of the PHC determination prepared under § 780.20 and the hydrologic reclamation plan approved under § 780.20 and develop appropriate measures to minimize the possibility that the operation could cause material damage to the hydrologic balance outside the permit area in the future. The purpose of setting evaluation thresholds and establishing monitoring points is to detect impacts and provide an early warning system to alert both the permittee and the regulatory authority of adverse trends that, left uncorrected, would result in material damage to the hydrologic balance outside the permit area if the trajectory of the trend remains unaltered. Early detection of adverse trends and timely implementation of corrective measures benefits both the environment and the permittee by preventing the development of water quality or quantity problems that may be difficult, expensive, or impossible to correct. Use of evaluation thresholds also may assist in avoiding SMCRA permit violations.

Section 780.21(b)(7) of the final rule requires that the regulatory authority identify evaluation thresholds for critical water quality and quantity parameters. These critical parameters are characterized as those that could rise to the level of material damage. We expect that the regulatory authority will use best professional judgment in determining which parameters are critical. The final rule does not dictate how the regulatory authority must identify appropriate evaluation thresholds for critical parameters, which means that the regulatory authority has considerable flexibility. For example, the regulatory authority may decide to apply an across-the-board percentage reduction from the corresponding material damage thresholds or it may decide to determine evaluation thresholds on a case-by-case basis.

An exceedance of an evaluation threshold is not itself a violation under SMCRA or the SMCRA permit because evaluation thresholds are not incorporated as a condition of the permit and do not constitute enforceable standards. Moreover, exceedances of evaluation thresholds may not necessarily be the result of the mining operation. For that reason, an exceedance of an evaluation threshold only triggers a requirement under final § 780.21(b)(7) that the regulatory authority determine the cause of the exceedance in consultation with the Clean Water Act authority, as appropriate. If the mining operation is Start Printed Page 93084responsible for the exceedance and if the adverse trend is likely to continue in the absence of corrective action, final § 780.21(b)(7) provides that the regulatory authority must issue a permit revision order under § 774.10. The order must require that the permittee reassess the adequacy of the PHC determination prepared under § 780.20 and the hydrologic reclamation plan approved under § 780.22 and develop measures to prevent material damage to the hydrologic balance outside the permit area. Section 780.21(c)(1) of the final rule provides that, upon receipt of an application for a significant permit revision, the regulatory authority must determine whether there is a need for a new or updated CHIA.

We encourage the permittee to identify any exceedance of an evaluation threshold as part of its review of water monitoring records and notify the regulatory authority, which will then determine how to proceed with determining the cause of the exceedance. Additionally, the SMCRA inspector will, as part of each complete inspection conducted on a quarterly basis, review water monitoring records to determine if an evaluation threshold has been exceeded. If the inspector identifies an exceedance, the regulatory authority, in consultation with the Clean Water Act authority, as appropriate, will then determine the cause of the exceedance and, if necessary, issue an order requiring that the permittee submit a permit revision application, as discussed above. In addition, § 780.21(c)(2) of the final rule provides that the regulatory authority must reevaluate the CHIA at intervals not to exceed three years to determine whether the CHIA remains accurate and whether the material damage and evaluation thresholds 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 review must consider all biological and water monitoring data from all surface coal mining and reclamation operations within the cumulative impact area.

We are the regulatory authority in Tennessee. We have used evaluation thresholds successfully in our Knoxville Field Office (KFO) for many years, resulting in cost-effective and practical improvements to water quality. For example, KFO routinely uses an evaluation threshold of 1.0 mg/l for iron in a receiving stream. Water monitoring data for a site subsequently documented an exceedance of that threshold after the surface mining operation disturbed flooded abandoned underground mine workings. The permittee had attempted to divert the flow from those workings to a pond for treatment. However, the diversion was not fully successful, and some of the water entered the receiving stream without treatment. KFO required the permittee to construct a three-cell wetland treatment system and divert all water from the underground workings to that system, which is successfully treating the water. This corrective action prevented material damage to the hydrologic balance from occurring. KFO conducted the investigation jointly with the Tennessee Clean Water Act permitting authority.

Monitoring

Final rule § 780.23(a) and (b) require that each permit application include plans to monitor both surface water and groundwater. Those paragraphs also provide that the plans must be adequate to evaluate the impacts of the mining operation on surface water and groundwater in the proposed permit and adjacent areas 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. Among other things, the final rule requires that the plans include monitoring points at the locations specified in the CHIA prepared by the regulatory authority under § 780.21(b)(6)(iv) of the final rule.

Paragraphs (a)(1)(iii) and (b)(1)(iv) of final § 780.23 require that the permittee establish a sufficient number of appropriate monitoring locations to evaluate the accuracy of the findings in the PHC determination, to identify adverse trends, and to determine, in a timely fashion, whether corrective action is needed to prevent material damage to the hydrologic balance outside the permit area. Under final § 780.23(b)(1)(iv)(B), the surface water monitoring plan must include upgradient and downgradient monitoring locations in each perennial and intermittent stream within the proposed permit and adjacent areas, with the exception that no upgradient monitoring location is needed for a stream when the operation will mine through the headwaters of that stream. Similarly, under final § 780.23(a)(1)(iii)(A), the groundwater monitoring plan must include monitoring wells or equivalent monitoring points located upgradient and downgradient of the proposed operation. That requirement applies to each aquifer above or immediately below the lowest coal seam to be mined.

Paragraphs (a)(2)(i) and (b)(2)(i) of final § 780.23 specify that, at a minimum, the surface water and groundwater monitoring plans must provide for the monitoring of those parameters for which evaluation thresholds exist under § 780.21(b)(7). In addition, paragraphs (a)(2)(ii) and (b)(2)(ii) of final § 780.23 require analysis of each sample for the baseline parameters listed in § 780.19(a)(2) and for all parameters for which evaluation thresholds exist under § 780.21(b)(7).

Final § 816.35(a)(2) requires that the permittee conduct groundwater monitoring through mining, reclamation, and the applicable revegetation responsibility period under § 816.115 of the final rule for the monitored area. The permittee must continue to monitor groundwater beyond that date for any additional time needed for monitoring results to demonstrate that the criteria of § 816.35(d)(1) and (2) have been met, as determined by the regulatory authority. Paragraphs (d)(1) and (2) of § 816.35 establish the conditions under which the regulatory authority may approve modification of the groundwater monitoring requirements, including the parameters monitored and the sampling frequency. For example, the regulatory authority may reduce the frequency of groundwater monitoring from quarterly to annual if it determines that the reduced frequency will be adequate to detect adverse trends in a timely manner, based on the rate of groundwater movement.

Specifically, paragraphs (d)(1) and (2) of final § 816.35 provide that the permittee may request, and the regulatory authority may approve, modification of the groundwater monitoring plan based on a demonstration that, with respect to the parameter or parameters affected by the proposed modification, future adverse changes in groundwater quantity or quality are unlikely to occur and the operation has—

  • Minimized disturbance to the hydrologic balance in the permit and adjacent areas;
  • Prevented material damage to the hydrologic balance outside the permit area;
  • Preserved or restored the biological condition of perennial and intermittent streams within the permit and adjacent areas for which baseline biological condition data was collected under § 780.19(c)(6)(vi) when groundwater from the permit area provides all or part of the base flow of those streams;
  • Maintained or restored the availability and quality of groundwater to the extent necessary to support the approved postmining land uses within the permit area; andStart Printed Page 93085
  • Protected or replaced the water rights of other users.

Nothing in § 816.35(d)(1) and (2) authorize complete discontinuance of monitoring at any monitoring location (except as approved under § 784.40 for certain underground mines) or discontinuance of monitoring of all parameters for the entire operation before expiration of the applicable revegetation responsibility period under § 816.115 for the monitored area. Given the typically slow rate of groundwater movement and the length of time needed to reestablish the water table in the backfilled area, discontinuance of monitoring before expiration of the applicable revegetation responsibility period under § 816.115 likely would result in discontinuance of groundwater monitoring before groundwater within the reclaimed permit area has reached equilibrium with groundwater in the adjacent area. That result would negate the purposes of the monitoring program, one of which is to evaluate whether the operation has caused material damage to the hydrologic balance outside the permit area.

Final § 816.36 contains identical requirements for surface water monitoring, with the exception that paragraph (a)(2) requires that surface water monitoring continue through mining and during reclamation until the regulatory authority releases the entire bond amount for the monitored area under §§ 800.40 through 800.43. This difference reflects the fact that surface water monitoring, unlike groundwater monitoring, does not involve wells that the permittee must seal or transfer under § 816.13 of the final rule before applying for final bond release. In addition, final § 816.36(d)(2) contains one additional requirement for modification of the surface water monitoring plan for a permit: The permittee must demonstrate that the operation has not precluded attainment of any designated use of surface water under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).

Paragraph (c) of final section 780.23 further requires that the permit application include a plan for monitoring the biological condition of each perennial and intermittent stream within the proposed permit and adjacent areas for which baseline biological condition data was collected under § 780.19(c)(6)(vi). The plan must 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.

N. What effect will the final rule have on proposed operations in impaired watersheds?

Each Clean Water Act authority is required to conduct an assessment of each stream within state borders to determine if the water is meeting all state and federal water quality criteria. If a stream is not meeting all state and federal water quality criteria, it is considered to be impaired. Under section 303(d) of the Clean Water Act, each state is required to submit a list of these impaired waters to the Environmental Protection Agency “from time to time” (but at least every three years). Section 303(d) of the Clean Water Act also requires each state to prioritize the waters on the impaired waters list and develop a plan to rehabilitate the stream so that it is able to meet all state and federal water quality criteria. This plan involves estimating the total maximum daily load (TMDL) of various water quality parameters from all known and reasonably foreseeable sources (point and non-point sources) that an impaired stream is expected to contain while moving along its flow path. The plan's objective is to decrease the pollutant load and enable the stream to meet all state and federal water quality standards. These TMDLs serve as a blueprint to ensure that an impaired stream meets all state and federal water quality criteria and achieves its highest designated use.

TMDLs can be calculated to implement a narrative stream condition or to focus on a specific parameter.[85] Once the TMDL is calculated, each new individual point-source discharge is assigned a waste load allocation based on its estimated discharge flow rate and parameter concentration. The Clean Water Act authority may adjust effluent limitations in existing NPDES permits to reflect the waste load allocation for each parameter under consideration in the TMDL. When the waste load allocations are implemented as concentration-based limits in NPDES permits, the limits are derived from the calculated waste load allocation for the outfall and an assumed flow rate. This concentration limit is expressed in concentration units applicable to each specific parameter and is normally given as a mass/volume (e.g., mg/L). Waste load allocations are often implemented in NPDES permits as mass-based limits and expressed as pounds per day.

Both the applicant and the regulatory authority need to carefully consider the impact of a proposed operation on the impaired hydrologic conditions in a watershed with a 303(d)-listed water. Under section 510(b)(3) of SMCRA and § 773.15(e) of this final rule, the SMCRA regulatory authority may not approve a permit application 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. Before making this finding, the SMCRA regulatory authority must prepare a cumulative hydrologic impact analysis (CHIA) that identifies and analyzes the cumulative impacts of all anticipated mining, including the proposed operation, on the hydrologic balance in the cumulative impact area, including impacts on the water quality and biology of the receiving stream. See final paragraphs (a) and (b) of § 780.21. Both the definition of “material damage to the hydrologic balance outside the permit area” in § 701.5 of this final rule and the CHIA regulations that we are adopting in § 780.21(b)(6) of this final rule provide that the regulatory authority must consult with the Clean Water Act authority, as appropriate, in determining whether the proposed operation would cause material damage to the hydrologic balance outside the permit area.

O. Should ephemeral streams receive the same protections as intermittent and perennial streams?

Scientific studies completed since the enactment of SMCRA and the adoption of our existing rules have documented the importance of headwater streams in maintaining the ecological health and function of streams down gradient of headwater streams. Headwater streams include all first-order and second-order streams without regard to whether those streams are perennial, intermittent, or ephemeral. In 2015, U.S. Environmental Protection Agency published a report summarizing the findings of peer-reviewed studies of headwater streams and wetlands and the impact they have on the physical, chemical, and biological integrity of downstream Start Printed Page 93086waters.[86] The studies and the report generally do not differentiate among perennial, intermittent, and ephemeral streams, but the report emphasizes that ephemeral streams are an important component of headwater streams and that they have an effect on the form and function of downstream channels and aquatic life. 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.[87] According to the report, the body of literature documenting connectivity and downstream effects is most abundant for perennial and intermittent streams and for riparian and floodplain wetlands.[88] The report further 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.[89]

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. 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.[90] These materials help structure stream and river channels by slowing the flow of water through channels and providing substrate and habitat for aquatic organisms.[91]

Our previous rules included no protections for ephemeral streams. Consistent with the findings of the U.S. Environmental Protection Agency report and other studies, our proposed rule included some protections for ephemeral streams, tailored to their hydrologic and ecological functions. We also invited comment on whether we should extend equal protection to all streams, without regard to whether the stream is perennial, intermittent, or ephemeral. See 80 FR 44451 (Jul. 27, 2015).

We received numerous comments from environmental groups advocating that ephemeral streams be protected in the same manner as perennial and intermittent streams. One commenter stated: “OSMRE's analysis should start from a presumptive rule of equal protection for all streams, and any assertion of countervailing business impacts should be considered only if it is backed by evidence included in the administrative record.” Many environmental commenters asserted that a strong stream protection rule must include protection of ephemeral streams because they are an essential element of the hydrologic balance.

In contrast, industry commenters opposed affording ephemeral streams the same protections as intermittent and perennial streams. This paragraph summarizes some of those arguments:

  • The U.S. Army Corps of Engineers, an agency with considerable expertise on the subject of streams, rarely requires returning all ephemeral features to the postmining landscape.
  • Some ephemeral streams are the result of anthropogenic activities and may be undesirable.
  • Many ephemeral streams will find their own way back onto the landscape, depending on many factors including the final configuration of the reclamation. Restoring these lesser drainages is a waste of effort when nature will do it better.
  • Disallowing the placement of sediment ponds in ephemeral drainages would result in logistically difficult or impossible situations or at least a greatly increased disturbance from additional ditching and a larger number of ponds.
  • It makes no sense and is counterproductive to reconstruct erosional features when reclamation provides the opportunity to reshape the landscape to reduce erosion.
  • Ephemeral streams have minimal if any biological components.
  • In Wyoming's Powder River Basin, extending protection to ephemeral streams could result in 2,800 tons of coal per foot of channel being left unmined. This equates to 15 million tons of coal sterilized for every mile of channel that could not be mined. Surface coal mines in Wyoming can have upwards of 100 miles of ephemeral channels within the permit boundary. If all of the channels were to become unmineable, approximately 1.5 billion tons of coal for each mine would be sterilized.
  • Typical mining techniques in the Powder River Basin utilize draglines and truck shovels. Efficient dragline operations require long linear pits. If ephemeral streams become unmineable, these types of operations will no longer be economic or efficient because of the number of ephemeral channels that bisect these pits.
  • The Bureau of Land Management requires that a bonus bid be paid at the time a federal coal lease is awarded. To date, coal underlying ephemeral stream channels has been considered recoverable, which means that companies have paid bonus bids ranging from $0.85 to $1.35 per ton for coal underlying ephemeral streams in leases awarded during the past 5 years. If ephemeral channels are considered unmineable, this will create a significant economic hardship for the mining companies. Federal and state governments also will experience a loss of revenue.

Many commenters thought that the term “ephemeral stream” included all conveyances that were not either perennial or intermittent streams. However, the definition of “ephemeral stream” that we are adopting in § 701.5 as part of this final rule addresses this issue by providing that ephemeral streams include only those conveyances with channels that display both a bed-and-bank configuration and an ordinary high water mark.

After evaluating the comments, reviewing the scientific literature, and weighing potential costs and benefits, we decided not to extend the same protections to ephemeral streams that we do to intermittent and perennial streams.

However, as part of this final rule, we adopted most of the added protections for ephemeral streams that we included in our proposed rule. The final rule will protect the important role that ephemeral streams perform within watersheds including providing Start Printed Page 93087protection and maintenance of downstream uses, ecological services, and the hydrologic balance of larger streams because of the impact ephemeral streams have on the form and function of downstream channels and aquatic life. Adopting these protections should ensure that ephemeral streams on reclaimed mine sites continue to provide the ecological services identified in the U.S. Environmental Protection Agency report while not unduly restricting mining through those streams. This approach is consistent with the purposes of SMCRA, as enumerated in section 102 of the Act.[92] In particular, it will protect society and the environment from the adverse effects of surface coal mining operations, as provided in paragraph (a); assure that surface coal mining operations are conducted so as to protect the environment, as provided in paragraph (d); and strike a balance between environmental protection and the Nation's energy needs, as provided in paragraph (f). Although only certain requirements apply to ephemeral streams, as discussed in final rule § 780.27, these requirements minimize impacts to ephemeral streams.

Proposed §§ 780.19(c)(6) and 784.19(c)(6) required that the permit applicant identify and map all ephemeral streams within the proposed permit and adjacent areas. Those proposed rules also required that the applicant 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, they required that the applicant assess the biological condition of a representative sample of those ephemeral streams. The final rule applies these proposed requirements only to ephemeral streams within the proposed permit area because those are the only ephemeral streams that the proposed operation would disturb and for which the operation would incur reclamation requirements. Requiring this information for ephemeral streams within the adjacent area would be costly and time-consuming and would not assist the regulatory authority in reviewing the permit application because no performance standards apply to ephemeral streams in the adjacent area. In addition, the final rule does not include the proposed requirement for baseline information on the biological condition of ephemeral streams because no scientifically defensible protocol currently exists for use in ephemeral streams for that purpose.

Proposed §§ 780.20, 780.21, 784.20, and 784.21 required that the determination of the probable hydrologic consequences of mining (PHC determination) and the cumulative hydrologic impact assessment (CHIA) include consideration of impacts on the biological condition of ephemeral streams. Those sections of the final rule do not include this proposed requirement because established and scientifically defensible protocols do not currently exist for use in determining the biological condition of ephemeral streams.

Proposed §§ 780.19(c)(3), 780.20(a)(5)(iv), 784.19(c)(3), and 784.20(a)(5)(iv) included peak flow baseline data collection and analysis requirements for ephemeral streams within the proposed permit and adjacent areas. The final rule does not include these requirements because this information is unnecessary for the analysis of the proposed operation's impacts on flooding that the PHC determination must contain. The baseline precipitation data required by final §§ 780.19(c)(5) and 784.19(c)(5) in combination with the description of the general stream-channel configuration of ephemeral streams within the proposed permit area required by final §§ 780.19(c)(6) and 784.19(c)(6) will provide all necessary information needed for that analysis, given that ephemeral streams flow only in direct response to precipitation events.

Proposed §§ 780.12(d)(1) and 784.12(d)(1) required that the backfilling and grading plan in the reclamation plan include contour maps, cross-sections, or models that show in detail the anticipated final surface configuration, including drainage patterns, of the proposed permit area. The final rule adopts those provisions as proposed. Final §§ 780.12(b)(3) and 784.12(b)(3) also provide that the reclamation timetable must include establishment of the surface drainage pattern and stream-channel configuration approved in the permit, including construction of appropriately-designed perennial, intermittent, and ephemeral stream channels to replace those removed by mining. Proposed §§ 780.28(c)(1) and 784.28(c)(1) required that the postmining drainage pattern, including ephemeral streams, be similar to the premining drainage pattern, with limited exceptions. Sections 780.27(b) and 784.27(b) of the final rule adopt these provisions in revised form for ephemeral streams. They allow variances from the premining drainage pattern when the regulatory authority finds that a different pattern or configuration is necessary or appropriate to ensure stability; prevent or minimize downcutting or widening of reconstructed stream channels and control meander migration; promote enhancement of fish and wildlife habitat; accommodate any anticipated temporary or permanent increase in surface runoff as a result of mining and reclamation; accommodate the construction of excess spoil fills, coal mine waste refuse piles, or coal mine waste impounding structures; replace a stream that was channelized or otherwise severely altered prior to submittal of the permit application with a more natural, relatively stable, and ecologically sound drainage pattern or stream-channel configuration; or reclaim a previously mined area.

Proposed §§ 780.28(b)(3) and 784.28(b)(3) provided that, after mining through an ephemeral stream, the permittee must plant native species within a 100-foot corridor on both sides of the reconstructed stream. Sections 780.27(c), 784.27(c), 816.57(d), and 817.57(d) of the final rule adopt this requirement with some revisions. The streamside vegetative corridor must be consistent with natural vegetation patterns. The streamside vegetative corridor requirement would not apply to prime farmland or when establishment of a corridor comprised of native species would be incompatible with an approved postmining land use that is implemented before final bond release. Establishment of a streamside vegetative corridor is critical to ensuring restoration of the nutrient and organic matter transport functions of ephemeral streams.

P. The Rule Should Not Require the Use of Multimetric Bioassessment Protocols To Establish Baseline Ecological Stream Function and Stream Restoration Criteria

Proposed §§ 780.19(e)(2) and 784.19(e)(2) would have required the use of multimetric bioassessment protocols to assess the baseline ecological function of perennial, intermittent, and ephemeral streams and to establish stream restoration criteria (i.e., the point at which ecological function will be considered restored) for perennial and intermittent streams. Proposed §§ 780.23(c) and 784.23(c) also would have required use of these protocols to monitor the biological condition of intermittent and perennial streams during mining and reclamation.

We received comments both in support of and in opposition to the use of macroinvertebrate sampling and associated indexes for those purposes. Start Printed Page 93088Some comments were general, while others singled out the use of an index of biological integrity (IBI) for baseline stream assessment and monitoring during mining and reclamation when discussing support or opposition to this requirement. The proposed rule required IBIs to include macroinvertebrate sampling. The IBIs would be used to develop a value that would provide an objective measure to describe various ecological characteristics found during the field surveys. This value would then be compared to an index that is established for designated uses under the Clean Water Act to assess the quality of the stream before, during, and after mining. This IBI system is a well-tested and robust tool to identify impacts on the health of perennial streams. IBIs and other scientifically defensible protocols are becoming more widely established for intermittent streams, but are not yet widely used across the nation. IBIs and other scientifically defensible protocols for assessing ephemeral streams have not been widely used to date, and when they have been, they have been most often used to characterize biological differences among ephemeral, intermittent, and perennial streams or biological changes with varying hydrological conditions. The proposed rule would have required the establishment of separate IBI protocols for all three types of streams: Perennial, intermittent, and ephemeral.

As discussed in Part IV, section O of this preamble, several commenters criticized our proposal to treat ephemeral streams in the same manner as intermittent and perennial streams. These commenters strongly encouraged us to remove requirements to assess the baseline condition of ephemeral streams using bioassessment protocols that sample macroinvertebrate populations within ephemeral streams. They claimed it would yield no valid data for assessing the baseline condition of SMCRA-related activities and would be unduly costly. We agree. The final rule does not include assessment of biological condition requirements related to ephemeral streams.

In addition, commenters suggested that there are other scientifically valid protocols that should be included as options for baseline stream assessment and monitoring. According to these commenters, these other protocols are also robust, scientifically defensible methods developed and applied by states, territories, and tribes. They include predictive and discriminant modeling approaches. We agree and have added these as acceptable methods in the final rule.

In light of the comments received, we identified and analyzed other options that commenters suggested for assessing the baseline condition of and monitoring streams: The Rapid Bioassessment Protocol III (RBPIII), which is set out in the 1989 EPA Publication, “Rapid Bioassessment Protocols for Use in Streams and Rivers;” the Before-After-Control-Impact design (BACI); and hydrogeomorphic sampling protocols. We also considered using IBIs that were designed for perennial streams to assess the baseline condition of and monitor intermittent and ephemeral streams (as is occasionally done by Clean Water Act authorities).

Our analysis identified some positive attributes of the RBPIII protocol. It would provide a more thorough baseline assessment of the ecological function and biological condition of the premining site than some other methods. It would demonstrate with greater certainty whether or not the permittee had minimized the adverse effects of coal mining on upstream and downstream waters. It is based on sound scientific principles (quantitative or semi-quantitative designs that can be analyzed statistically). Finally the RBPIII is relatively easy to use and can be rapidly deployed. However, the RBPIII also has significant drawbacks. It would require the regulatory authority or the permittee to establish, assess, and monitor a set of reference streams on a permit-by-permit basis. This in turn would pose an issue of statistical validity: The variability between the relatively small number of reference streams and the streams potentially affected by the permitted operation could be great enough to mask significant impacts that mining might have on the affected streams. Differences in methodology (e.g., sample collection protocols, data analysis, etc.) mean that the RPBIII may not be comparable with the scientifically defensible protocols such as the IBI that we proposed to evaluate perennial streams. Using two different protocols, moreover, would significantly increase time and costs associated with assessing the baseline condition of and monitoring the effects of mining on streams. Finally, the RBPIII protocol is over 20 years old. This in and of itself is not a reason to eliminate this protocol; however, since its first publication, it has been updated twice to reflect a focus on national standardization, not to small-scale projects as originally designed and its suggested use by the commenters.

Our analysis also showed positive and negative aspects to using the BACI protocols. On the positive side, BACI analysis would be specific to each permit area or even each particular stream and would allow the regulatory authority to tailor monitoring and baseline assessment to each permit. This could allow for variances from the kind of state or regional standard that an IBI or other larger-scale protocols might impose. BACI analysis could be less costly than some other approaches because the regulatory authority can perform one analysis that evaluates multiple streams, including every stream in the permit area. Under this kind of analysis one premining sampling event and additional postmining samplings would result in a statistically valid analysis. On the negative side, the BACI analysis requires use of control sites. This could create a number of problems in the context of SMCRA permits. First, if the control site is not selected correctly, it could result in a skewed analysis or a situation in which an analysis may not be possible after mining is complete. Second, under this kind of analysis, the control sites must remain in their original condition for the duration of the mining operation. This may not be practicable because those sites might be beyond the permittee's control. They also could be affected by activities other than mining, such as industrialization, logging, or urbanization within the watershed. Third, while the BACI protocol may be cheaper than some alternatives, permittees still would incur additional costs for sampling not only baseline and impacted streams but the control streams. Fourth, additional control streams might have to be incorporated into the permit area if enough suitable control streams are not present in the initially designed permit area. This could lead to additional costs and permitting delays. Fifth, control sites would have to be identified and monitored for each individual permit. This would increase costs and might lead to permitting delays. Finally, one of the greatest drawbacks of the BACI analysis is that, although it can assess large changes to biological condition and ecological function, it may miss smaller changes. Indeed, this kind of analysis might not be any more protective than the previous regulations.

We found no benefit to using hydrogeomorphic protocols. Although they are easy to implement, they do not require macroinvertebrate sampling. In general, they provide no greater benefit than the types of analysis that have been used in connection with our previous regulations.

Finally we determined that it is not currently appropriate to use protocols Start Printed Page 93089developed for perennial streams to assess the baseline condition of and to monitor intermittent streams. As commenters pointed out, some Clean Water Act authorities, in the exercise of their professional judgment, have occasionally done this. We have concluded, however, that this approach has not been used enough to justify requiring it in our rule.

In sum, after consideration of these other methods, as provided in final §§ 780.19(c)(6)(vii) and 784.19(c)(6)(vii), we determined that the best technology currently available for baseline assessment and monitoring purposes for perennial streams is the use of IBIs or other equally scientifically defensible stream assessment protocols developed and applied by states, territories, and tribes. These other scientifically defensible stream assessment protocols would include predictive and discriminant modeling approaches, such as those in place in many western states. The final rule requires use of these methods and protocols for all perennial streams within and adjacent to the proposed permit area. Some states and regions have developed indices of biotic integrity or bioassessment protocols for intermittent streams. In those instances, final §§ 780.28(g)(3)(iii) and 780.19(c)(6)(vii) and their counterparts in §§ 784.28 and 784.19 require use of those protocols to assess the baseline condition of and to monitor intermittent streams. Requiring these types of baseline assessments and monitoring protocols instead of the RBPIII, BACI, hydrogeomorphic protocols, and instead of using perennial stream indices for intermittent and ephemeral streams will encourage the further development of scientifically defensible methods and protocols.

We realize, however, that at present few scientifically defensible protocols have been established for bioassessments of intermittent streams. In the final rule, we do not require that SMCRA regulatory authorities develop new protocols for this purpose, but we do require them to reevaluate the best technology currently available for intermittent streams every 5 years and make any appropriate adjustments to account for new protocols that may have been developed. See § 780.28(g)(3)(iv)(B). Until scientifically defensible protocols are developed for intermittent streams, we are requiring baseline assessment and monitoring of these streams using a description of the water quality, water quantity, stream channel configuration, a quantitative assessment of the streamside vegetation, and an initial cataloging of the stream biota. For further detail, please see our discussions of §§ 780.19, 780.27, 780.28, 816.56, and 816.57 in this preamble.

Q. Restoration of the Ecological Function of Perennial and Intermittent Streams Is Not Possible or Feasible

Many commenters argued that there is no scientific support, in the form of published peer-reviewed studies, for the proposition that reconstructed streams can effectively replace streams that existed before mining, especially in regard to ecological function and premining biology. In a similar vein, some commenters urged us to prohibit mining activities within areas in which streams occur because stream restoration is unattainable. For example, one commenter stated: “[T]he unproven ability to fully restore the functions and uses of streams damaged by subsidence necessitates that the rule require avoidance of such damage as a primary consideration.” According to commenters, we did not provide sufficient evidence that the ecological condition of streams could be restored with the available technology and science. They alleged that our rule created an impossible standard of reclamation, a standard that had not been demonstrated to be achievable by operators or enforceable by regulatory authorities.

Some industry commenters agreed that full restoration of perennial and intermittent streams is not attainable. According to those commenters, we should not adopt a rule that establishes an unattainable standard.

We agree that full restoration of the biology and ecological function of mined-through streams is not always possible and that restoration of those streams has often fallen short of goals. However, our experience indicates that restoration of impaired streams is possible after mining. Streams that were not attaining their designated aquatic life use have been shown to improve enough, through restoration techniques, to be removed from the section 303(d) [93] list of impaired waters.[94]

In addition, standards to assess and monitor ecological function are both established and currently in use to regulate activities within streams and reclamation projects across the United States. When consistent with SMCRA, we incorporated those standards into the final rule. In addition, we analyzed the shortcomings of past efforts to restore streams to determine how this rule could improve the results. Recent literature advocates a watershed approach to determining the restoration capacity of degraded, or potentially degraded, streams.[95] This includes assessing the various resources that have been identified as determining success or failure of previous restoration projects. These include the condition of upstream habitats and water resources, the potential change in the quality and quantity of water present in the stream or the watershed, the amount and type of vegetation along the banks and buffer zones of streams, the reestablishment potential of appropriate stream channel habitat within the reconstructed stream to recolonize the stream via emigration, the potential for the adjacent streams and upstream habitats to serve as a source for emigration into the reconstructed stream (i.e., the species pool for successful recolonization), and the return of naturally occurring leaf litter and other organic matter to the area.

This final rule improves our stream assessment and restoration requirements and analyzes these resources listed in the above paragraph, beginning at the application process. Upstream habitat and water quantity and quality will be assessed as part of the baseline data required in a permit application. Under the final rule, streambank and buffer zone vegetation will receive greater protection or restoration, including using native species (i.e., naturally occurring leaf litter and other organic matter). The implementation of the final Start Printed Page 93090rule will also increase the amount of reforested habitat, which should improve watershed quality. Baseline data will contain information on streams potentially affected by the proposed operation, including bioassessments of perennial and some intermittent streams that regulatory authorities can use to determine the potential of these streams to provide biological emigrants (plants, animals, fungi, etc.) to reconstructed segments of connected streams. This is not to say that the reclamation of all streams is now possible or will now become a timely and precise exercise; careful consideration will need to be taken to understand the potential for restoration of each stream, and the economic and biological cost associated with these determinations.

This final rule is intended to increase protection or restoration of perennial and intermittent streams and related environmental resources, as well as to ensure that permittees and regulatory authorities make use of advances in science and technology. The final rule provides that restoration of ecological function does not mean that the restored stream must precisely mirror the premining condition. For example, as section 780.28(g)(3)(ii)(A) of our final rule states, a demonstration of ecological function does not require that the reconstructed stream have precisely the same biological condition or biota as the stream segment did before mining. This is consistent with current, scientifically defensible bioassessment protocols used throughout a wide range of regulatory arenas, which allow for a natural range in variation of reference sites to which the assessments are compared.[96] These bioassessment protocols use genus-level identification counts of macroinvertebrates to determine biological condition, where available, and to calculate values derived from measures such as species richness, composition, tolerance, feeding, and habitat measures that determine stream quality. Assessment of the biological condition of these streams is based on these values, not directly on the species that were first sampled. This change allows for some variation from the initial stream compared to the reconstructed stream as long as the reconstructed stream is within a suitable range according to the results of the bioassessment protocol used.

We recognize that stream restoration and creation is an emerging area of scientific study and that in some cases the reconstruction of functional stream channels on mined land can be difficult. It may be impossible in some cases to precisely mirror the ecological function that was there before mining. However, as we have just discussed, that is not what our rule requires. We also note, however, that one of the purposes of SMCRA is to ensure that “surface mining operations are not conducted where reclamation as required by this Act is not feasible” and that SMCRA therefore requires a permit applicant to demonstrate that “reclamation as required [by SMCRA] and the State or Federal program can be accomplished under the reclamation plan contained in the permit application[.]” If analysis of the baseline data and other information in the application indicates restoration of a stream cannot be accomplished through use of conventional mining and reclamation technology, the applicant will need to adjust the proposed operation and reclamation plan to either avoid that stream or take other measures (e.g., the construction of aquitards in the backfill) to ensure restoration of a stream's water quality and quantity and aquatic life after the completion of mining.

R. We Should Apply the 1983 Stream Buffer Zone Rule To Effectively Prohibit Mining Activities Within 100 Feet of Streams

Numerous commenters urged us to promulgate a rule consistent with their interpretation of the 1983 stream buffer zone rule as prohibiting all mining activities in or within 100 feet of a perennial or intermittent stream. They argued that the proposed rule weakens this interpretation of the 1983 rule by “placing more emphases on mitigation of impacts on streams than on protection and prevention.” They claim that the lack of science on successful restoration of stream form and function renders the proposed rule less protective than their interpretation of the 1983 rule and allows for the continued destruction of streams. Other commenters maintain that the proposed rule is inconsistent with section 515(b)(24) of SMCRA,[97] which requires, in relevant part, that, to the extent possible, surface coal mining and reclamation operations use the best technology currently available to minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values. According to the commenters, the best technology currently available to protect fish, wildlife, and related environmental values from the adverse impacts of coal mining is a prohibition on mining in or within 100 feet of a perennial or intermittent stream. The commenters recognize that such a prohibition would reduce minable acres, but they contend it is reasonable and practicable, given the decline in the demand for coal resources.

The preamble to our proposed rule discusses the history of the 1983 stream buffer zone rule in significant detail (see 80 FR 44447-44451, Jul. 27, 2015). It includes the following statement: “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.” The specific language of the 1983 rule allowed the regulatory authority to authorize mining activities within the stream buffer zone upon finding that “[s]urface mining 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.” As discussed in the preamble, that provision has been subject to numerous court challenges and was substantially revised by the now-vacated 2008 stream buffer zone rule. The 1983 rule will remain the standard applied by state regulatory authorities until the provisions of our final rule have been adopted by those individual regulatory programs.

While we have not adopted a strict prohibition standard for mining activities within the stream buffer zone, we have in our final rule required that certain conditions be met in order for the regulatory authority to authorize such activities. The final rule allows mining activities in or within 100 feet of an intermittent or perennial stream only if the permit applicant makes certain demonstrations and the regulatory authority makes certain findings. When the applicant proposes to mine through a perennial or an intermittent stream, these required findings include the ability of the permittee to actually restore the form, hydrologic function, and ecological function of the stream as part of the reclamation process. We intend these requirements to ensure that the reconstructed stream will actually have sufficient base flow, water quality, and an aquatic community similar to that which existed prior to mining. As discussed more comprehensively in Start Printed Page 93091final rule §  780.28, in general, mining activities in, through, or adjacent to perennial or intermittent streams must not: cause or contribute to a violation of water quality standards; cause material damage to the hydrologic balance outside the permit area; result in conversion of a stream segment from perennial to intermittent, perennial to ephemeral, or intermittent to ephemeral; and must be designed to minimize adverse impacts on fish, wildlife and related environmental values to the extent possible using the best technology currently available.

The final rule allows burial of intermittent or perennial streams with excess spoil or coal mine waste only if the permit applicant demonstrates and the regulatory authority finds that the loss of resources associated with the burial of a stream will be offset through fish and wildlife enhancement measures commensurate with the magnitude of the adverse impacts from burial of the stream. In addition, the area where proposed enhancement activities are to occur must be incorporated into the permit and bonded for reclamation. In approving a plan that provides for the appropriate level of enhancement, the regulatory authority also must establish standards for determining when reclamation bonds can be released for such areas. This regulatory approach ensures that the desired results are actually achieved, and, if they are not, the regulatory authority will be in a position to use the proceeds from forfeiture of the reclamation bonds to accomplish the desired objective of the approved reclamation plan.

V. Explanation of Organizational Changes and Plain Language Principles

The final rule includes organizational changes for clarity. Those 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 improves 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.

In general, we drafted the final 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.” [98] In addition, a June 1, 1998, Executive Memorandum on Plain Language in Government Writing [99] 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 final rule text 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 rule text 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.

VI. How do our final regulations differ from our proposed regulations?

Except as otherwise discussed in the preamble to this final rule, we are adopting the regulations as proposed on July 27, 2015, for the reasons set forth in the preamble to the proposed rule. In this portion of the preamble to the final rule, we explain our responses to the comments that we received on the text of the proposed regulations. We also discuss how we revised the proposed regulations in response to those comments and other considerations. However, in general, we do not discuss syntax improvements, plain language changes, and other revisions of a minor nature.

This discussion refers to previous, existing, proposed, and final rules and regulations. In general, we use “previous” when we refer to regulations that will no longer exist once this final rule is effective. We use “existing” to describe regulations that are unaffected by this rulemaking. “Proposed” regulations are the regulations set forth in our July 27, 2015, proposed rule. The term “final” refers to the regulations that we are adopting today, including existing regulations that are redesignated in this rulemaking.

A. Part 700—General

Section 700.11: What coal exploration and coal mining operations are subject to our rules?

Final Paragraph (d): Termination and Reassertion of Jurisdiction

We proposed to revise § 700.11(d) to add clarity to the regulations, to conform them with proposed revisions to 30 CFR part 800 concerning financial assurances for treatment of long-term discharges, and to add provisions consistent with a court decision that resulted from a previous rulemaking. The rationale for the proposed revisions is set forth at 80 FR 44436, 44466-44467 (Jul. 27, 2015). We received no comments specific to proposed paragraphs (d)(1) and (4), so they are not discussed below.

Final Paragraph (d)(2): Termination of Jurisdiction for Permanent Regulatory Program Sites

One commenter expressed concern that replacement of the term “increment” with “portion” in the introductory language of paragraph (d)(2) implies that a permittee may apply for bond release on a portion of a permit that has not been separately bonded as an increment. According to the commenter, bonds and jurisdiction apply to the entire permit or to the permit increment for which bond is posted. The commenter stated that our permitting, bonding, and termination of jurisdiction regulations need to use the same terminology so that regulators and the public can easily discern which sections of a mine are active or in reclamation and which sections are eligible for release and eventual termination of jurisdiction.

Our regulations restrict termination of jurisdiction to those areas for which bond has been fully released, but otherwise, we do not agree that our permitting, bonding, and termination of jurisdiction regulations must use the same terminology or that the boundaries of each original permit increment must remain inviolate. Under § 800.13(b), Start Printed Page 93092with the approval of the regulatory authority, we have always allowed clearly defined portions of the permit area requiring extended liability to be separated from the original area and bonded separately. The change in terminology from “increment” to “portion” in our termination of jurisdiction regulations as part of this final rule is consistent with both the language and approach outlined in § 800.13(b). The public should have no difficulty identifying the portions of the permit area for which bond has been released and jurisdiction has been terminated because § 800.13(b) requires that the boundaries of each portion be clearly defined.

One commenter opposed the proposed revisions to this paragraph because, in the commenter's opinion, they would require that, even in primacy states, bond release and termination of jurisdiction be based upon 30 CFR part 800 rather than the provisions of the applicable regulatory program. That was not the intent of our proposed revisions. To avoid this misinterpretation, final paragraph (d)(2)(ii) provides for termination of jurisdiction whenever the regulatory authority has made a final decision to fully release the performance bond or financial assurance in accordance with the applicable regulatory program. The revised language is similar to the language of paragraph (d)(2)(i) in this respect.

The commenter also alleged that proposed paragraph (d)(2)(ii)(B), which concerns sites with postmining discharges requiring long-term treatment, provided confirmation that we intend to retain jurisdiction in perpetuity. That was not the intent of the proposed provision, but we understand how it could be misinterpreted. We have determined that proposed paragraph (d)(2)(ii)(B) is unnecessary because it essentially duplicates § 800.18(i) and because proposed paragraph (d)(2)(ii)(A) refers to financial assurances as well as performance bonds. Therefore, we are not adopting proposed paragraph (d)(2)(ii)(B). Final paragraph (d)(2)(ii) includes only proposed paragraph (d)(2)(ii)(A) and is renumbered to accommodate the removal of proposed paragraph (d)(2)(ii)(A).

Final Paragraph (d)(3): Reassertion of Jurisdiction

Several commenters opposed this paragraph as unreasonable. Others alleged that it was illegal because it would apply retroactively. Others alleged that it would be inconsistent with SMCRA because it would result in the permittee having an eternal possibility of reassertion of jurisdiction. Several commenters asserted that SMCRA provides no authority for the assertion of jurisdiction over mining operations that have obtained bond release.

These comments reflect a perspective on the principle of reassertion of jurisdiction under SMCRA, which is now a matter of settled law. In 1991, the U.S. Court of Appeals for the District of Columbia Circuit upheld the 1988 termination of jurisdiction rules at 30 CFR 700.11(d), which include a similar provision requiring reassertion of jurisdiction under specified circumstances. See Nat'l Wildlife Fed'n v Lujan, 950 F.2d 765, 770 (D.C. Cir. 1991). Specifically, with respect to the reassertion of jurisdiction under SMCRA, the court held that:

The question is whether the effect of the regulation comports with the statutory scheme. We believe that it does in light of the language of the regulation and the interpretation provided in both the preamble and the Secretary's brief here.

The preamble adopts an objective standard, stating that jurisdiction must be re-asserted whenever “any reasonable person could determine” that fraud, collusion or misrepresentation had occurred. [53 FR 44359] (1988). The Secretary's brief not only adopts this standard but also clarifies its scope:

It is important to note in this connection that the filing of an application for bond release is in itself a representation that the operator has satisfied his reclamation obligations since an operator is not entitled to release from the bond unless he has met those obligations. . . . If an operator applies for release but has not fulfilled his obligations, he is guilty of misrepresentation by the very fact of making an application.

Brief for the Secretary at 27 n.11. This is a reasonable way of implementing the Act's condition “[t]hat no bond shall be fully released until all reclamation requirements of this chapter are fully met.” 30 U.S.C.[] 1269(c)(3). The condition implies that after reclamation requirements are met, the bond may be “fully released.” Id. When it turns out that the operator had in fact not fulfilled its reclamation obligations at the time of release, the Secretary's interpretation of “misrepresentation” ensures that jurisdiction “shall” be reasserted. 30 [CFR] 700.11(d)(2).[100]

Therefore, we made no changes in response to these comments.

However, final paragraph (d)(3) differs somewhat from the proposed rule in that we added paragraphs (d)(3)(i) and (ii) and placed most of proposed paragraph (d)(3) in paragraph (d)(3)(iii). Under the final rule, reassertion of jurisdiction is required only if all three factual situations identified in paragraphs (d)(3)(i) through (iii) exist. Paragraph (d)(3)(i) specifies that the conditions that develop after termination of jurisdiction must constitute a violation of the reclamation requirements of the applicable regulatory program. Paragraph (d)(3)(ii) specifies that the conditions that develop after termination of jurisdiction must be the result of surface coal mining operations for which jurisdiction was terminated. The addition of paragraphs (d)(3)(i) and (ii) is consistent with the preamble to the 1988 rules, which provides that “it would not be appropriate for the regulatory authority to reassert jurisdiction under the approved program” if “the problem was not caused by the permittee's violation of the regulatory program.” [101]

Several commenters asserted that paragraph (d)(3) would require reassertion of jurisdiction on sites where third-party disturbances created the conditions resulting in the need for reassertion of jurisdiction. The rule does not require reassertion of jurisdiction when the impact is a result of a third-party disturbance. Instead, the rule applies only to impacts resulting from the mining operation. We have added language at paragraph (d)(3)(ii) that clarifies this point.

One commenter opposed the rule because it provides no discretion to the regulatory authority in deciding whether to reassert jurisdiction and does not provide an endpoint for reassertion of jurisdiction. The final rule that we are adopting today, like the proposed rule and the 1988 rule, does not provide discretion to the regulatory authority or an endpoint (equivalent to a statute of limitations) because neither is appropriate if bond release and termination of jurisdiction were based upon fraud, collusion, or misrepresentation of a material fact.

One commenter alleged that adding “intentional or unintentional” as an adjective modifying “material misrepresentation of a material fact” would increase long-term liability and result in additional litigation by nongovernmental organizations, as would the provision requiring reassertion of jurisdiction for postmining discharges requiring treatment. Neither of the added provisions represents a substantive change in policy or regulation. Therefore, we find no basis for the commenter's allegation. Another commenter opposed adding “intentional or unintentional” as a modifier for Start Printed Page 93093“misrepresentation of a material fact,” alleging that it was unnecessary. This phrase is helpful to clarify circumstances to which it can be applied and better informs the reader of how the rule is to be interpreted and applied. No changes have been made as in response to these comments.

Several commenters alleged that adoption of the provisions discussed in the preceding paragraph would mean that a permittee would never have the certainty that it has fulfilled all obligations for a permitted site. According to the commenters, this result would infringe upon the permittee's ability to conduct business and could adversely impact the availability of surety bonds. As discussed in the preceding paragraph, neither of the added provisions represents a substantive change in policy or regulation. Therefore, we have no reason to anticipate that the outcome feared by the commenter will develop. Even if it did, that outcome would not justify allowing a termination of jurisdiction based on fraud, collusion, or misrepresentation of a material fact to stand if the mining operation has resulted in a situation that constitutes a violation of SMCRA or the applicable regulatory program.

One commenter opined that the rule would penalize successful operators because operators exiting the coal business would not be subject to this rule. Both the 1988 rule and this final rule apply to the permittee in existence at the time of termination of jurisdiction. If reassertion of jurisdiction is necessary, the regulatory authority must require that the permittee implement corrective measures regardless of whether the permittee has exited the coal business.

Similarly, another commenter expressed concern that the regulatory authority might be held responsible if the permittee could not be located or was no longer a viable business entity. Nothing in the proposed or final rules would support this outcome.

One commenter asserted that the proposed rule is unworkable because it is not clear how it will be enforced. The final rule will be implemented in the same manner as the 1988 rules. The preamble to the 1988 rules provides the following explanation of how the regulatory authority may become aware of a situation involving fraud, collusion, or the intentional or unintentional misrepresentation of a material fact:

Liability under the approved program for a failure of reclamation, however, may be the subject of a Secretarial or regulatory authority inquiry or a civil suit in the courts pursuant to section 520 of the Act. Such liability would depend upon whether the reclamation failure was caused by a violation by the operator of the regulatory program.[102]

The regulatory authority inquiry to which this paragraph refers may be the result of information supplied by the public, information gleaned from the news media, or observations by regulatory authority personnel in the course of inspecting nearby mine sites.

One commenter asked whether the permittee or the regulatory authority would be required to conduct water sampling on sites for which bond has been fully released. The answer is no. There is no authority under SMCRA to impose such a requirement. In addition, it would defeat one of the purposes of termination of jurisdiction; i.e., to determine when monitoring and inspection under SMCRA are no longer necessary.

One commenter implied that the rule should specify that the need for reassertion of jurisdiction will be determined using only the bond release standards in effect at the time of termination of jurisdiction. We find that no such provision is necessary because the rule already provides that reassertion of jurisdiction is required only if the regulatory authority becomes aware that the bond release was based upon fraud, collusion, or the intentional or unintentional misrepresentation of a material fact. This sentence refers to decisions in which the regulatory authority released bond fully but would not have done so if the information provided by the permittee had not been tainted by the fraud, collusion, or misrepresentation of a material fact at that time. Paragraph (d)(3) neither mentions nor provides a basis for reasserting jurisdiction whenever the regulatory authority adopts revised bond release criteria. Unless otherwise specified in the rulemaking adopting those criteria, the revised criteria would apply only prospectively. In any event, they could not be used to reassert jurisdiction over permits with bond released before the effective date of the revised criteria because the adoption of revised bond release criteria would not be considered fraud, collusion, or misrepresentation of a material fact.

Several commenters opposed paragraph (d)(3) because, in their view, it would require reassertion of jurisdiction for any error or mistake in a document submitted as part of the bond release process, no matter how minor the error or mistake. We disagree. Both the 1988 rule and final paragraph (d)(3) require reassertion of jurisdiction only for fraud, collusion, or misrepresentation of a material fact. Clerical errors and other minor mistakes would not meet this threshold because they would not be considered misrepresentation of a material fact. The adjective “material” means the fact must be critical to the decision to release bond. In other words, misrepresentation of a material fact refers to a situation in which, in the absence of the misrepresentation, the regulatory authority would not have released the bond. However, in response to these and other comments, we have added paragraphs (d)(3)(i) and (ii) to specify that reassertion of jurisdiction is required only when conditions exist that would constitute a violation of the reclamation requirements of the applicable regulatory program and those conditions are the result of surface coal mining operations for which jurisdiction was terminated. This limitation is consistent with the preamble to the 1988 rules, which provides that “it would not be appropriate for the regulatory authority to reassert jurisdiction under the approved program” if “the problem was not caused by the permittee's violation of the regulatory program.” [103]

Two commenters asserted that the rule is unnecessary because some states have a fund to address post-bond release problems. We find that this comment is not germane because, in 1988, we determined that there was a need for a rule providing for both termination of jurisdiction and reassertion of jurisdiction. The proposed rule did not propose to alter that determination nor did we request comment on that possibility.

One commenter suggested that, in lieu of adopting this rule, we establish a fund similar to the Abandoned Mine Reclamation Fund that would cover problems that arise after termination of jurisdiction. We have no authority to establish such a fund or assess the fees that would be required to operate it.

One commenter took issue with the statement in the preamble to the proposed rule at 80 FR 44436, 44467 that the intentional or unintentional misrepresentation of a material fact includes the “subsequent discovery of a discharge requiring treatment.” The commenter noted that this language differs slightly from the proposed text of the regulation, which did not use the term “subsequent”. According to the commenter, reassertion of jurisdiction for a discharge that was undiscoverable at the time of the application for bond release would be inconsistent with Start Printed Page 93094language and reasoning in NWF v. Lujan.

We do not agree. Nothing in the court decision says that the discharge must be discoverable at the time of bond release to be considered a misrepresentation of a material fact. Instead, the court decision focuses on section 519(c)(3) of SMCRA,[104] which, in relevant part, provides that “no bond shall be fully released until all reclamation requirements of the Act are fully met.” We anticipate that there would be very few cases in which a discharge was not discoverable at the time of bond release. However, should an unanticipated mining-related discharge requiring treatment develop after bond release, the final rule would require reassertion of jurisdiction because the conditions resulting in formation of the discharge were present at the time of bond release. Therefore, development of a discharge requiring treatment after bond release means that the permittee's certification that all reclamation requirements were met ultimately proved to be a misrepresentation of a material fact.

One commenter opposed our proposed addition of the sentence establishing discovery of a discharge requiring treatment of parameters of concern after termination of jurisdiction as a misrepresentation of material fact. According to the commenter, addition of this sentence would be inconsistent with the preamble to the 1988 rule, which states that the discovery of an acid seep subsequent to bond release would not automatically require reassertion of jurisdiction:

[T]he occurrence of an acid seep subsequent to bond release does not, by itself, establish the cause of the seep, whether reclamation had been completed, whether intervening events occurred, or the circumstances surrounding bond release.[105]

There is a distinct difference between the situation described in the 1988 preamble and the sentence that we proposed to add to our rules and that we are adopting in revised form as part of this final rule. The sentence in our proposed and final rules applies to a discharge for which a treatment need has already been established, while the seep cited in the 1988 preamble is a newly discovered seep for which there has been no determination whether the seep is a discharge that will require treatment or whether it is the result of the surface coal mining operations for which jurisdiction was terminated. As noted in the preamble, these factual questions need to be answered before a determination can be made on reassertion of jurisdiction. Although not expressly stated in the preamble, we would anticipate that reassertion of jurisdiction would be required under the 1988 rule if the questions are answered in the affirmative. Therefore, we find no inconsistency between the 1988 preamble and our final rule. For added clarity, as discussed below, we have revised the pertinent sentence in the proposed rule by adding a proviso that reassertion of jurisdiction is required only if the conditions creating the need for treatment of the discharge are the result of the mining operation.

In final paragraph (d)(3)(iii), we removed the phrase “if it is demonstrated that” found in (d)(3) in the proposed rule. The language in the proposed rule is somewhat confusing because it did not address what a demonstration must include or who must make the demonstration. The preamble to the proposed rule describes proposed paragraph (d)(3) as meaning that “the regulatory authority must reassert jurisdiction if the termination was based upon fraud, collusion, or misrepresentation of a material fact.” [106] The language of the final paragraph (d)(3)(iii) more effectively conveys this meaning. In addition, it is consistent with the preamble to the 1988 rule, which states that the regulatory authority would have to reassert jurisdiction “[i]f following final bond release, any reasonable person could determine that the bond release was based upon fraud, collusion, or a misrepresentation of a material fact at the time of release. . . .” [107]

In paragraph (d)(3)(iii), we also revised the language in proposed paragraph (d)(3) pertaining to the discovery of discharges requiring treatment by deleting the reference to mining-related parameters of concern and by adding a proviso that the conditions creating the need for treatment must be the result of the mining operation. The revised language focuses simply on whether the discharge requires treatment and whether the need for treatment is a result of the mining operation. There is no need for use of the new term “parameters of concern” in this context.

Coal Exploration

We received a few comments in response to our statement in the preamble to the proposed rule that we intended to correct an oversight in the 1988 final rule text by applying the termination of jurisdiction provisions to coal exploration and surface coal mining and reclamation operations, not just surface coal mining and reclamation operations. The comments that we did receive generally opposed this extension. One commenter alleged that including coal exploration in the termination of jurisdiction rules would impose an undue burden on operators and regulatory authorities and would discourage future exploration. Another commenter noted that SMCRA provides only minimal requirements for coal exploration and that it neither mandates inspections nor notification of citizens or opportunity for citizens to comment upon or appeal critical regulatory decisions on coal exploration. According to the commenter, the issue of when SMCRA jurisdiction terminates in the context of coal exploration rarely arises. The commenter suggested that it might be appropriate to leave this issue to the discretion of individual regulatory programs.

After evaluating the comments, we have decided not to proceed with our proposal to revise § 700.11(d) to apply to coal exploration. Our regulations at Part 772 do not require a permit or regulatory authority approval for coal exploration unless the exploration involves the removal of more than 250 tons of coal or will take place on lands designated as unsuitable for surface coal mining operations. Therefore, there are no permit boundaries or defined endpoints. In the absence of a permit, there is no bond, so bond release cannot be used as a determinant for termination of jurisdiction. As one commenter suggested, we will rely upon the discretion of each regulatory authority to determine when termination of jurisdiction is appropriate for coal exploration.

B. Part 701—Permanent Regulatory Program

Section 701.5: Definitions

Acid Drainage or Acid Mine Drainage

A commenter asserted that normal rainfall can have a pH of less than 6.0 as a result of the presence of carbon dioxide in the atmosphere. In addition, the commenter claimed that, historically, some of the lowest pH in rainfall occurs over the Appalachian Region, where, in 2012, pH reported in proximity to the intersection of West Virginia, Pennsylvania, and Ohio, was approximately 4.5 based on National Trends Network trend maps between 1986 and 2012. The commenter also opined that assigning a pH level of less than 6.0 was arbitrary and could result in a situation where acid rainfall in some regions could cause an operator to be in violation of the rule. We reject the Start Printed Page 93095commenter's arguments for a number of reasons. First, we did not arbitrarily select the pH value used in our definition of acid drainage or acid mine drainage, and it is not a new specification in this rule. The definition for acid drainage was codified in our regulation in March, 1979. In the preamble to that regulation, we explained that we selected a pH of less than 6.0 for the definition because the U.S. Environmental Protection Agency set that level as the minimum for its effluent limitations and because pH values outside the range of 6.0-8.5 in natural waters are indicative of stress.[108] Second, our definition contains another condition that must be met before we consider water draining from a mining area with a pH of less than 6.0 to be acid drainage or acid mine drainage: total acidity must exceed total alkalinity. Sometimes a stream under natural conditions can have pH values of less than 6.0, but its acidity will not exceed its alkalinity. In addition, an applicant reports baseline data, including pH level, for both groundwater and surface water as part of the permit application required by final rule § 780.19. This baseline data provides site specific information to the regulatory authority so that rainfall impacts or other existing conditions affecting the pH of water at the site are known prior to mining. Thus, we decline to make changes to the definition based on this comment and are adopting the proposed rule definition without modification.

Adjacent Area

As discussed in the preamble to the proposed rule, we proposed to modify our existing definition of “adjacent area”.[109] See 80 FR 44467-44468 (Jul. 27, 2015). After evaluating the comments we received, we are adopting the definition as proposed, with exceptions.

First, we proposed to revise the basic definition of “adjacent area” to encompass the area outside the proposed or actual permit area when there is a reasonable “possibility” of adverse impacts from surface coal mining operations or underground mining activities, as determined by the regulatory authority. This portion of the proposed definition was substantively identical to the existing definition except that the existing definition included only the area in which impacts are reasonably “probable” rather than the area in which impacts are reasonably possible. Several commenters objected to the proposed change as overly expansive. After evaluating those comments, we have decided not to make the proposed change. We agree that collection of baseline data from the area in which impacts are reasonably probable will provide sufficient basis for evaluation of the permit application and design of the proposed operation. Similarly, we agree with the commenters that limiting monitoring outside the permit area to the area in which impacts are reasonably probable will provide sufficient data to detect and evaluate the impacts of mining and reclamation in a timely manner. Expanding baseline data collection and monitoring to areas in which impacts are reasonably possible, but not reasonably probable, would increase cost with little benefit.

As we explained in the preamble to the proposed rule, the definition of “adjacent area” depends on the nature of the resource and the context in which the regulations use the term.[110] In response to a comment from another federal agency, we modified final paragraph (1) to clarify that, in the context of the Endangered Species Act, “adjacent area” includes areas outside of the proposed or actual permit area where surface coal mining operations or underground mining activities may affect a species listed or proposed for listing as endangered or threatened, or having designated or proposed critical habitat under the Endangered Species Act. This modification, found at final rule paragraph (1)(ii), is to ensure protection is extended to proposed or listed species under the Endangered Species Act, as well as proposed or designated critical habitats listed under the Endangered Species Act that may be impacted by the proposed mining activity. Any impact to a proposed or listed species or proposed or designated critical habitat, whether adverse or beneficial, should be included within the definition of adjacent area.

We have also made a change to paragraph (b) of the proposed definition of “adjacent area,” now final paragraph (2). This paragraph clarifies the previous definition by specifying that the adjacent area includes the area of probable impacts from underground workings. We proposed to revise the definition to state that the adjacent area includes the area overlying the underground workings plus the area encompassed by a reasonable angle of draw from the perimeter of the underground workings. Several commenters questioned the application of the phrase “reasonable angle of draw” in paragraph (b) of the proposed rule, and noted that it should instead be based on the hydrologic regime. As pointed out by several commenters, the angle of draw is a term more appropriate for defining the limits of surface subsidence impacts that could occur adjacent to an area of high extraction mining. Commenters pointed out that hydrologic impacts to surface water and groundwater related to dewatering caused by high extraction mining may extend significantly beyond the limits of direct subsidence impacts as measured by the angle of draw. Therefore, these commenters suggested we adopt a term that more accurately addresses the potential limits of dewatering. We acknowledge that dewatering impacts may extend beyond the limits defined by the angle of draw; therefore, we are replacing the term “angle of draw” with the term “angle of dewatering”. As the commenters recognized, the actual zone of hydrologic impacts to surface water and groundwater caused by subsidence induced dewatering will be highly site specific depending of lithology, depth of coal seam, aquifer characteristics and the extent to which groundwater contributes to surface flow of streams. Due to the variability of these impacts and the site specific nature of the data needed to accurately determine the angle of dewatering we are not placing a specific limits on this area; instead, we are defining the term “angle of dewatering” to mean, “the angle created from a vertical line drawn from the outer edge or boundary of high-extraction underground mining workings and an oblique line drawn from terminus of the vertical line at the mine floor to the farthest expected extent that the mining will cause dewatering of groundwater or surface water.” This definition,[111] or similar variations, has been in use for many years, and is commonly used in defining the potential impact area for stream dewatering and other adverse impacts to surface water and groundwater.

We also received several comments on this proposed definition that we are not adopting. A couple of commenters expressed concern regarding the potential inability to access the “adjacent area” because of a lack of landowner consent. We acknowledge that lack of landowner consent may restrict data collection. However, the regulatory authority needs sufficient data about the adjacent area to properly evaluate the permit application and Start Printed Page 93096prepare the cumulative hydrologic impact assessment. If one landowner refuses access, one solution could be to expand the initial “adjacent area” to include land further away for which access can be obtained. We encourage permit applicants to work with the regulatory authority to determine an appropriately-sized “adjacent area” with sufficient sampling points to satisfy all planning and regulatory needs.

Additionally, several commenters opined that the proposed definition of “adjacent area” would result in an expanded permit area to secure access and result in increased costs. In some cases the permit area may coincide with the extent of probable impacts; however, that is the exception. Most of the time the permit area is smaller than the “adjacent area”; therefore, we do not believe this definition will impact the size of the permit area.

One commenter proposed adoption of the adjacent area definition used by the Wyoming Department of Land Quality. That definition provides that “[a]djacent area means land located outside the permit area upon which air, surface water, groundwater, fish, wildlife, or other resources protected by the Act may reasonably be expected to be adversely impacted by mining or reclamation operations. Unless otherwise specified by the Administrator, this area shall be presumptively limited to lands within (one-half mile) of the proposed permit area.” This suggestion was not accepted because of the one-size-fits-all minimum application of “one-half mile.” We have no indication that this size limitation would ensure the inclusion of all areas where there is the reasonable probability of adverse impacts.

One commenter alleged that the proposed rule inappropriately assumes that adjacent waters are inextricably linked to, what the commenter referred to as, “the core/jurisdictional waters.” This commenter explains that adjacent waters may have little, if any, biological connection to “the core/jurisdictional waters;” they may contain two distinct, functionally independent communities that may only interact slightly. We disagree that the rule assumes a biological connection between two adjacent water bodies. The rule at section 780.19 requires the operator to collect geologic, hydrologic, and biologic data in the permit area and adjacent area. To the extent that distinct, functionally independent communities exist in adjacent areas, the baseline data collection will document that fact. This information will then assist the operator and the regulatory authority to better understand the potential cumulative impact on the hydrologic and biologic environment in the permit and adjacent areas from the proposed operation.

Paragraph (c) [112] of the proposed definition established what the term “adjacent area” means with respect to underground mine pools. Two commenters questioned the need for including paragraph (c) within the definition of adjacent area. One of the two commenters asserted that the requirements in the existing paragraph (c) are adequately addressed and there is no need for revision and the other commenter asserted that the requirements are sufficiently discussed in paragraph (a), now final paragraph (1). Final paragraph (c), now final paragraph (3), is retained because it highlights the importance of ensuring that areas that might be affected physically or hydrologically by the dewatering of a mine pool or areas that may develop mine pools will be included in the adjacent area because of the long-term cost associated with remediation and treatment of discharges that could continue in perpetuity. Inclusion of these areas ensures that sufficient groundwater data will be collected to assist the regulatory authority to determine what, if any, impacts the mine operation will have on areas that mine pools could adversely impact.

In conjunction with the comments listed above, both commenters recommended, that if proposed paragraph (c), now final paragraph (3), is retained, that we replace the words “might be affected” in the final rule language. One commenter suggested replacing the words “might be affected” with “may realize physical or hydrological adverse impacts.” This phrase does not afford the regulatory authority sufficient flexibility in making determinations about areas that may be affected by dewatering. The other commenter suggested we replace “might be affected” with “could reasonably be significantly affected, based on the professional judgment of a professional hydrologist within the regulatory authority.” This phrase is too vague and subjective, particularly since the commenter does not explain what the term “reasonably be significantly affected” means. Therefore, we are retaining the words “might be affected” in the final rule text within final paragraph (3) and adopting paragraph (c), as proposed, with the exception of renumbering it as final paragraph (3).

In the preamble to the proposed rule, we invited comment on whether the definition of “adjacent area” should prescribe the Hydrologic Unit Code (HUC) 12 watershed or a more appropriate minimum watershed size for the adjacent area for surface water resources. Several commenters supported inclusion of at least the next higher order drainage area for baseline surface water characterization where dewatering of streams by longwall or other high-extraction mining may occur as a mechanism to define adjacent area. In contrast, another commenter strongly opposed an approach of using the next higher order drainage area to determine “adjacent area”. That commenter stated that using the definition of “adjacent area” as the drainage area of the operation and at least the next higher order drainage area could result in several thousand acres and associated stream lengths being added to the stream mapping and monitoring requirements. We agree with this commenter and have not changed the definition for two reasons. Changing the definition to include a specific watershed would create fixed boundaries for the “adjacent area” and may not be adequate to capture all areas with probable impacts on resources. In addition, the fixed area may be larger than necessary, which may result in collection of data with little or no value for evaluation of the impacts of mining and reclamation.

Angle of Dewatering

In response to numerous comments, we are adding the definition of “angle of dewatering” to the final rule. As we discussed in the definition of “adjacent area” we are defining the term “angle of dewatering” to mean, “the angle created from a vertical line drawn from the outer edge or boundary of high-extraction underground mining workings and an oblique line drawn from the terminus of the vertical line at the mine floor to the farthest expected extent that the mining will cause dewatering of groundwater or surface water.” This definition,[113] or similar variations, has been in use for many years, and is commonly used in defining the potential impact area for stream dewatering and other adverse impacts to surface water and groundwater as a result of underground mining. As the commenters recognized, the actual zone of hydrologic impacts to surface water and groundwater caused by subsidence induced dewatering will be highly site specific; depending of lithology, depth of coal seam, aquifer characteristics, and Start Printed Page 93097the extent to which groundwater contributes to surface flow of streams. Due to the variability of these impacts and the site specific nature of the data needed to accurately determine the angle of dewatering it is not possible to define one all-inclusive “angle” of dewatering. Therefore, we are identifying impacts to be expected within the “angle of dewatering”. The permittee will be responsible for performing the necessary onsite investigation to estimate the “angle of dewatering”, and to define the potentially affected surface area and groundwater resources.

Approximate Original Contour

We proposed to revise the definition of “approximate original contour” to clarify that the term refers to the general land configuration within the permit area as it existed before any mining and not to a configuration immediately prior to the current mining. As the preamble explained,[114] this approach is consistent with section 515(b)(2) of SMCRA,[115] 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 . . . .”. As the preamble also explained,[116] the U.S. District Court for the District of Columbia held that the word “any” used in this SMCRA section “indicates that Congress intended the operator to restore the land to the condition that existed before it was ever mined.” [117]

Numerous commenters took exception to the addition of the word “any” in front of the word “mining” in the definition of approximate original contour. One commenter contended that the current definition is clear and should not be changed and that the proposed change would conflict with the statutory definition at section 701(2) of SMCRA.[118] As stated above, and in the preamble to the proposed rule, the changes to this definition only clarify our longstanding policy that “approximate original contour” refers to the general land configuration within the permit area as it existed before any mining and not to a configuration immediately prior to the current mining. The use of the term “original” within the definition of approximate original contour supports the contention that restoration is based on the land's original or natural configuration, before any mining, and not on its altered contour as impacted by pre-SMCRA mining. The addition of the word “any” simply clarifies this point. Clearly, SMCRA did not intend previously mined landscapes with dangerous highwalls and ungraded spoil piles and ridges as an acceptable postmining topography when they are remined under SMCRA. The added language is intended to assure these lands will be reclaimed to eliminate as many of these adverse features and contours to the extent possible. During a nationwide evaluation of approximate original contour in 2010, we learned that certain state regulatory authorities were allowing pre-SMCRA abandoned mine land features, such as dangerous highwalls and ungraded spoil piles and ridges, to form the basis of postmining topography when they are remined under SMCRA. This practice is not allowed under SMCRA and the changes to this definition provide clarification but do not depart from, nor conflict with, the statutory definition, as suggested by the commenter.

Other commenters stated that it was not appropriate to require current mining operations to repair the damage caused by pre-law mine operations. Another commenter asked us to clarify when the new definition might be applied on previously mined areas permitted before or after the effective date of the new rule, as it could have major impact on staff resources to re-review previously approved plans. As mentioned above, the clarification that pre-SMCRA abandoned mine land features may not provide the basis for approximate original contour is not a new requirement. Therefore, all SMCRA permits should already contain reclamation plans that ensure that the land will be reclaimed to the general surface configuration of the land prior to mining, regardless of this rulemaking. Furthermore, as discussed below, it is common practice for remining operations to repair the damage caused by pre-law mine operations. While SMCRA does not limit operations to only remining operations, and does not require operators to reclaim abandoned mine land features outside of a permit disturbance boundary, any previously mined areas that are re-disturbed during the course of remining must be reclaimed according to all of the requirements of SMCRA. No changes were made as a result of these comments.

Other commenters not only objected to the addition of the word “any” before the word “mining” in the definition of approximate original contour at § 701.5, the commenters questioned our legal authority to make this modification to our regulations. These commenters contend that requiring operations to ensure that the reclaimed area closely resembles the general surface configuration prior to any mining, instead of the general surface configuration just prior to permit issuance, would impose an unachievable standard. However, the requirement that operations ensure that the reclaimed area closely resemble the general surface configuration prior to any mining is not a new requirement. In fact, SMCRA's legislative history shows that, except in limited circumstances, it was commonly understood that previously mined areas could and should be remined and reclaimed to achieve original contours. When testifying about Pennsylvania's surface coal mining law, the basis for SMCRA, Pennsylvania's Governor Milton J. Shapp testified that:

Since our strip mining laws have been in effect, many coal operators have come back in the same area and are now digging the second seam; and, of course, as they do that, they are restoring the original contour, so that a large percentage of the scars of western Pennsylvania, where we has [sic] this double seam, have already been corrected . . . .

H.R. 2 Hearing Part II at 46. The addition of the word “any” is merely a clarification. Furthermore, commenters did not provide an explanation or an example to illustrate why this requirement is unachievable.

In support of their contention that we lack the legal authority to insert the word “any” into the definition of approximate original contour, commenters made three main arguments. First, commenters rely on two recent decisions from the Departmental Cases Hearings Division in the Department's Office of Hearings and Appeals, in which an administrative law judge allowed a mining company to model postmining surface configurations on pre-SMCRA abandoned mine land features. However, decisions of administrative law judges are not Departmental precedents and are not binding on the Interior Board of Land Appeals, other administrative law judges, the Office of Surface Mining, or Article III Courts. West Cow Creek Permittees v. BLM, 142 IBLA 224, 235 n.16 (1998). In fact, administrative decisions of this type are only binding on the parties if the decision is not appealed or if the decision is upheld upon appeal to the Interior Board of Land Appeal. In this case, both decisions have been appealed to the Interior Board of Land Appeals Start Printed Page 93098and are awaiting a decision. Finally, these decisions did not address our authority under SMCRA but were based on a state regulatory authority's interpretation of its regulations.

Second, commenters stated that it was incorrect for us to reference the postmining land use and backfilling and grading performance standards at Sections 515(b)(2) and (b)(3) of SMCRA in support of its clarification that postmining surface configuration should be based on contours prior to any mining. These commenters instead insist that we should only consider the statutory definition of approximate original contour at section 701(2) [119] in its analysis of whether approximate original contour should be based on the contours prior to any mining or whether it is appropriate to base postmining contours on pre-SMCRA abandoned mine land features present at the proposed mining site at permit issuance. We do not agree. Postmining land use and approximate original contour are closely linked and should not be artificially separated. The requirements at sections 515(b)(2) and (b)(3) [120] that land be backfilled and graded to “restore the approximate original contour” with all highwalls, spoil piles, and depressions eliminated and “restore” the land to the uses that “it was capable of supporting prior to any mining” complement each other, ensuring that the standard for reclamation is the condition of the land in its natural, or “original” condition, prior to any mining activities. Our longstanding understanding of this connectedness is evidenced in the fact that approximate original contour and postmining land use are listed together at 816.102(a) as requirements for backfilling and grading.

Third, a few commenters questioned whether requiring that approximate original contour be based on the condition of the land prior to any mining would preclude the beneficial practice of remining. We agree that section 102(h) of SMCRA [121] promotes the reclamation of pre-law sites that have been left in an environmentally degraded condition. However, these commenters may not be aware that our regulations already provide an approximate original contour exemption for previously mined areas “where the volume of all reasonably available spoil is demonstrated in writing to the regulatory authority to be insufficient to completely backfill the reaffected or enlarged highwall.” 30 CFR 816.106(b). In promulgating our regulation at § 816.106, we determined that no approximate original contour exception was necessary where a previously mined area has sufficient spoil to completely backfill the reaffected area or enlarged highwall. In those instances, there is no reason to treat the site any differently and the operator must follow the general backfilling and grading requirements at § 816.102. If approximate original contour were based on the surface configuration at permit issuance, instead of our longstanding policy of using the surface configuration prior to any mining, the exemption for previously mined areas would not be necessary because an applicant would always be able to base reclamation on any pre-SMCRA abandoned mine land features within a permit, such as orphan spoil piles, pits, and highwalls. This outcome would not result in the reclamation of previously mined areas. While encouraging remining is important, we have already provided an exemption for certain remining activities and do not believe that a greater exemption is necessary to encourage reclamation of pre-SMCRA abandoned coal mine sites through remining. For the preceding reasons, we find the arguments challenging our legal authority to make these changes unsupported and have not revised our definition.

One commenter expressed concern that the proposed changes could be interpreted to alter the core elements of approximate original contour. While this comment did not request a change to the definition, we can confirm that the changes do not alter the requirement that the reclaimed area must closely resemble the general surface configuration prior to any mining, must blend into and complement the drainage pattern of the surrounding terrains, and must contain no highwalls or spoil piles. These requirements apply, regardless of the presence or absence of abandoned mine land features, unless a separate exception applies.

Another commenter expressed concern that returning land to its approximate original contour would limit certain types of postmining land uses. Commenters did not provide any examples of situations where removal of pre-SMCRA abandoned mine land features would preclude any postmining land uses. We do not share the concern expressed by this commenter. In our experience, ensuring the elimination of pre-SMCRA abandoned mine land features only enhances the land's capability to support a wider variety of postmining land uses. Therefore, we do not believe that there is any need to make changes to the definition of approximate original contour based on these comments.

Several commenters stated that approximate original contour conditions before any mining might be difficult to determine because some sites may have been mined before the publication of United States Geological Survey quadrangle maps or were mined centuries ago. We do not believe that the lack of detailed USGS topographic maps or other information for very old pre-SMCRA mined areas should inhibit the ability to comply with this requirement. Considering the remining of previously mined sites requires an approximate restoration and not an exact restoration of contours, before any mining, general knowledge of the natural topography typical of the local area should be sufficient. We made no changes as a result of this comment.

Similarly, one commenter expressed concern that the changes in the language of the definition somehow altered the standard for requiring the restoration of land configuration from “approximate” to “exact” original contours. It is not our intent to require reclamation to achieve the “exact” original contour. The final rule reflects that changes in the surface configuration after mining compared to the land's configuration before any mining are allowed as long as the premining configuration closely resembles the post-mine configuration. Another commenter requested that we explain the meaning of the term “approximate” or “closely resembles” as it relates to the definition of approximate original contour. Such a discussion is not necessary as the use of these terms within the definition have not been proposed for change and maintain the same meaning as they had before this revised definition.

Some commenters expressed concern that the revised definition implies that soil resources from previously mined areas must be restored, and argued that soil resources at many pre-law sites were not protected and it would be unreasonable to impose such a requirement to fully reclaim them. We disagree that the revised definition of approximate original contour implies, or could reasonably require, permittees and mine operators to recreate soil resources that have been permanently lost. We fully recognize that previously mined areas commonly have significant limitations. At the same time, these limitations should not be used as an excuse to not make improvements, such as elimination of highwalls and spoil piles, and remediation of hazardous and environmentally degraded conditions. We also reject the comment that grading Start Printed Page 93099of remined spoil piles to meet approximate original contour is technically and economically impossible. Most on-going remining operations currently comply with the requirement of § 816.102 and are already achieving approximate original contour. Where they have insufficient spoil to fully reclaim the highwall, § 816.106 provides an alternative option for reclamation. We therefore decline to make changes in this definition based on these comments.

Others commented that the changes to the approximate original contour definition appear to focus mainly on problems in Appalachia, where remining, thick overburden, and mountaintop removal are prevalent. While we agree that these conditions may be prevalent in Appalachia, sites with previously mined areas exist throughout the coal regions. For example, we noted problems with achieving approximate original contour in Oklahoma in a 2010 National Priority Review of approximate original contour. The clarifications provided in this final rule are applicable nationwide and will ensure that, unless an operation qualifies for an exemption from the requirement to achieve approximate original contour, such as the exemption for previously mined areas with insufficient spoil to completely reclaim the highwall under § 816.106, the reclamation will be based on contours present prior to any mining.

Several commenters advocated expanding the definition of approximate original contour to include the restoration of topography damaged by surface subsidence from underground mining, specifically longwall mining. Other commenters expressed opposition to the inclusion of such language and instead urged that subsidence from underground mining be specifically excluded from the definition of approximate original contour. After consideration of both positions, we have determined that these changes are not necessary because approximate original contour is not applicable to surface subsidence for underground mining. Pursuant to section 701(2) of SMCRA, the requirement to achieve approximate original contour is applicable to “reclaimed areas, including any terracing or access roads,” that are subject to “backfilling and grading of the mined area.” [122] As the area above underground mine works are not part of the mined area that are backfilled and graded, they are not subject to requirements of approximate original contour. Therefore, expanding the definition of approximate original contour to include the restoration of topography caused by settlement due to underground mine subsidence would be inappropriate. Furthermore, following the same logic, explicitly excluding underground mining subsidence impacts is unnecessary because approximate original contour already does not apply to these impacts.

One commenter alleged that the post mining configuration should only have to resemble the areas surrounding the permits and that the proposed addition of the phrase “within the permit area” to the definition of approximate original contour is unlawful and contrary to SMCRA. The commenter based this contention on one portion of the statutory definition of approximate original contour that references “the surrounding terrain”. We did not adopt this comment as it does not fully reflect the definition as it appears in SMCRA. The full statutory definition reads “ `approximate original contour' means 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. . . .” [123] The interpretation urged by the commenter fails to give force to the beginning of the definition, which requires that the reclaimed area closely resemble the general surface configuration of the land prior to mining and misses the distinction between resembling the surface configuration and blending into the surrounding area. The purpose of blending the reclaimed mined area with surrounding terrain is to ensure that there is a topographic connection that avoids dangerous and abrupt topographic changes, often due to swell and bulking factors. Complementing the drainage patterns of the surrounding area is also necessary to ensure that surface water flows similarly to how it did before mining and that it does not cause pooling above the mine site or downstream off-site damage. Approximate original contour has never been based on restoring the configuration of the mined area to resemble the surrounding terrain, especially because, in some situations, the topographic differences can be significant. As an example, if the mined area were flat to gently rolling topographically before any mining and the surrounding area were naturally a much steeper topography, it would be inappropriate to reclaim the mined area with the intention of using the surrounding terrain as the approximate original contour model. In this example, to achieve the requirements of approximate original contour, the mined area that was topographically flat to gently rolling before any mining should be reclaimed to a flat to gently rolling topography.

Commenters alleged that our proposed change does not adequately consider the effects of swell or bulking factors on grading and that an unintended consequence of our proposed change might be the construction of more excess spoil fills. While the commenters did not clearly explain why they believed that changes to the approximate original contour definition would have this result, other commenters mistakenly believed that our changes were intended to require the sites to be returned to the “exact” premining contours, which would limit the amount of spoil that could be returned to the mined out area and increase the need for excess spoil fills. However, as we explained above, our rule change does not require a return to the exact premining contours and therefore we do not anticipate an increased demand for excess spoil fills. Therefore, we have not made any change to this definition in response to these commenters.

One commenter asserted that the proposed definition deletes the reference in the statutory definition to permanent water impoundments. That is not the case. The final definition, like the proposed definition, provides that the requirement to eliminate all highwalls and spoil piles does not prohibit “the approval of permanent water impoundments that comply with §§ 816.49, 816.55, and 780.24(b) or §§ 817.49, 817.55, and 784.24(b) of this chapter.” That provision is substantively identical to the previous definition in § 701.5.

Other commenters stated they were unclear as to whether the rule would allow the creation and approval of the type of impoundments frequently referred to as final-cut impoundments or final-cut lakes. Some of these commenters pointed out that impoundments can serve as an aquatic resource for fish and wildlife habitat and are often requested by landowners. We agree that permanent water impoundments, including properly constructed final-cut lakes, can provide valuable fish and wildlife habitat, recreational facilities, or water resource features. For that reason, our definition of “land use” in section 701.5 includes “developed water resources” as a specific land use category. As previously noted, the final definition of Start Printed Page 93100“approximate original contour” specifically allows permanent water impoundments that comply with §§ 816.49, 816.55, and 780.24(b) or § 817.49, 817.55, and 784.24(b). Sections 816.49(b) and 817.49(b) of our rules establish criteria for the approval of permanent impoundments, including final-cut impoundments. Paragraphs (b)(7) and (8) of those rules are particularly pertinent to final-cut impoundments. They require a demonstration that approval of the impoundment would not result in retention of spoil piles or ridges that are inconsistent with the definition of approximate original contour or the creation of an excess spoil fill elsewhere within the permit area.

A commenter approved of the clarification in the proposed rule [124] that coal refuse piles should be evaluated separately from the analysis of approximate original contour. As the commenter noted, requirements for the construction of permanent coal mine refuse piles are addressed separately from approximate original contour at 515(b)(11) and 516(b)(4) of SMCRA.[125] The regulations for coal waste are available at §§ 816.81, 816.83, 816.84, 816.87, 817.81, 817.83, 817.84, and 817.87. However, if coal refuse material is placed in the mined out area, the mined out area must still be returned to approximate original contour unless the regulatory authority has approved a coal refuse disposal area in that location. We have not made any changes to the proposed rule in response to this comment.

Backfill

We received no comments on this proposed definition, which we are adopting as proposed.

Bankfull Stage

We proposed to define “Bankfull” as 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.” [126] We explained in the preamble to the proposed rule that the proposed definition paralleled the definition in the National Weather Service glossary and clarified the technical and scientific term that we use “to more precisely fix the boundaries of stream buffer zones and riparian corridors in our proposed stream restoration requirements.” [127] As explained below, we modified this definition in response to comments.

One commenter argued that the definition of “bankfull” should include a storm frequency interval to make the definition applicable to altered watersheds or systems that have experienced downcutting and are disconnected from floodplains. It was never our intent to except altered watersheds or systems that are disconnected from floodplains from this definition. We agree that streams, such as those with steep-sloped areas, that may be entrenched and lack a floodplain should be addressed by the definition because entrenched streams are commonly found within all of the coal regions of the United States. In consideration of this comment, we are adding the term “stage” to the term “bankfull” and revising the definition to include entrenched streams, rivers and lakes. The term “bankfull stage” is appropriate because experts generally use the term “bankfull stage” when describing high water events in streams, rivers, or lakes that have active flood plains or are entrenched. For entrenched streams, rivers, or lakes, experts define “bankfull stage” as the highest scour line, bench, or top of the point bar.[128]

Another commenter alleged that the proposed definition of “bankfull” is inconsistent with the definitions of leading experts such as Rosgen, the United States Geological Survey, and North Carolina University. The commenter argued that multiple other factors in the proposed rule—such as bankfull width, depth, and flood prone area—rely on a properly assessed “bankfull stage” and that an incorrect definition would lead to inaccurate data, which in turn would lead to improperly designed projects. In place of the “bankfull” definition, the commenter argued for consistent and clear terminology, such as the definition relied on by leading experts, to ensure that appropriate and accurate data are collected. Additionally, the commenter argued that the definition and proposed rule increased confusion because the agency did not provide guidance for the calculation of flood prone areas or include references to methods such as hydrologic modeling, Federal Emergency Management Agency flood maps, a standard distance from top of banks, or Rosgen's 2X maximum bankfull depth method. Calculation of flood prone areas is not germane to the definition of “bankfull stage”; however we would expect that standard engineering practices would be used to calculate the flood prone areas. Our rule uses “bankfull stage” only for the purpose of determining the point from which the stream buffer zone must be measured and describing stream channel profiles. As we discuss above, we have revised the term from “bankfull” to “bankfull stage” and have more consistently aligned our proposed definition to the definition relied on by leading experts.

One commenter argued that a definition of “bankfull” is not necessary because most ephemeral streams do not have banks. We disagree. For the reasons explained later in this preamble, we modified the definition of “ephemeral stream” in the final rule to “include[ ] only those conveyances with channels that display both a bed-and-bank configuration and an ordinary high water mark, and that have streambeds located above the water table year-round.” Thus, if a conveyance lacks a bank, we would not classify the conveyance as a stream. As such, a definition of “bankfull stage” remains necessary to establish the boundaries of the streamside vegetative corridor for all stream types.

In the final rule, “bankfull stage” means the water level at which a stream, river, or lake begins to overflow its natural banks and enter the active floodplain or if the stream, river, or lake is entrenched, bankfull stage is identified as the highest scour line, bench, or top of the point bar. This term and definition applies to all streams, rivers, and lakes.

Biological Condition

We proposed 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. Some commenters expressed support for the proposed definition. Some commenters questioned how this term differed from another new term that we proposed to define, “ecological function”. In response, we revised the definition of “biological condition” by deleting the statement that biological condition is a measure of the ecological health of a stream or segment of a stream. The final Start Printed Page 93101definition clarifies that biological condition refers to the characteristics of the biota found in surface water bodies, including streams.

Several commenters requested we remove the term “physiological state” from the definition of biological condition because it refers to a condition that is difficult to measure and also implies that any change in this condition would prevent mining. We agree with this assessment. “Physiological state” may be unmeasurable and our concerns are effectively addressed by the rest of the definition of “biological condition” when it refers to the type, diversity, distribution, and abundance of aquatic organisms and communities found in a stream, stream segment, or other waters. Therefore, we have deleted “physiological state” in the definition of “biological condition” within the final draft rule.

One commenter expressed concern that the definition of “biological condition” coupled with the definition of “parameters of concern” would impose new and burdensome requirements. We disagree. We define “parameters of concern” as those chemical or physical characteristics and properties of surface water or groundwater that could be altered by surface or underground coal mining activities, including discharges associated with those activities, in a manner that would adversely impact the quality of groundwater or surface water, including adverse impacts on aquatic life. The definition of “parameters of concern” clarifies that these parameters may be of import because of potential impacts on biological conditions. Neither the definition of “parameters of concern” nor “biological condition” prescribe additional biological data collection beyond the requirements expressly defined elsewhere in the final rule.

Some commenters noted that gathering data on “biological condition” of streams would increase permitting and monitoring costs on the part of the operator and the burden of the regulatory authority to review the resulting data. We agree with the commenters and have made several changes to these requirements in relationship to ephemeral and intermittent streams. These changes can be found within final rule §§ 780.19(c)(6) and 784.19(c)(6), related to underground mining, formerly §§ 780.19(e) and 784.19(e) of the proposed rule. These changes will reduce the cost and time commitment of the operator and regulatory authority. However, as further described in the preamble discussion of final rule §§ 780.19(c)(6) and 784.19(c)(6), below, some of this information is necessary to adequately determine the condition of the stream premining, during mining, and after mining because these inventories and assessments provide crucial information on the function of these streams.

One commenter requested that we exclude ephemeral streams from the definition of “biological condition” because assessment of the biological condition of ephemeral streams is impractical and unreasonable due to inconsistent flows. We agree with the commenter's statement about the impracticality of assessing the biological condition of ephemeral streams. However, instead of revising the definition of biological condition, as explained above, we have revised our baseline data requirements. This revision to final § 780.19(c)(6)(vi), includes the elimination of the requirement that permit applications include baseline data on the biological condition of ephemeral streams.

We also revised the definition of “biological condition” by adding the phrase “found in surface water bodies, including streams” because biological condition assessments are not inherently limited to streams. This change was made to better tailor the definition to the manner in which the term is explained and used in a final report from the U.S. Environmental Protection Agency Practitioners Guide [129] stating, “[a]s a practical matter, our rules use this term only in connection with perennial and intermittent streams, but there is no scientific basis for limiting the definition itself in that manner.”

Cumulative Impact Area

We are adopting the definition of “cumulative impact area” as proposed with the following exceptions. We have altered the nomenclature of this definition by modifying the paragraphs to conform to the rest of the rule. Instead of using (a) through (c) to designate paragraphs, as we did in the proposed rule, we use (1) through (3) to designate paragraphs in the final rule.

One commenter requested that, at a minimum, the eight or six digit hydrologic unit code be used to delineate the cumulative impact area to ensure the inclusion of all impacts from active, closed, and expired mines on downstream water quality. We are not modifying the final rule to accommodate this request. Regulatory authorities are required to assess the probable cumulative impacts of all anticipated mining in a given area, regardless of a specified hydrologic unit code (HUC), to assure the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Therefore, the region that needs to be included in an area may be larger or smaller than a HUC 6 or 8.

Numerous commenters asked us to consider deleting the requirement within the proposed rule of using a HUC-12 watershed size in delineating the “cumulative impact area”. The commenters stressed that a HUC-12 watershed may be appropriate in some cases but would result in areas that are too broad or too restrictive in others. The commenters requested the proposed rule be revised to allow the regulatory authority flexibility in requiring a more suitably-sized watershed approach based on the permit area under consideration, existing and anticipated coal mining operations, and site and regional characteristics. We agree with the commenters and have revised the proposed definition to allow the use of a HUC-12 or a different-sized watershed deemed appropriate for purposes of preparation of the cumulative hydrologic impact assessment. This change will allow the regulatory authority to use a watershed size that is more appropriate to the area under evaluation.

In addition to this change we altered the definition of “cumulative impact area” within the final rule by renumbering the paragraphs and removing proposed paragraph (c)(6). Proposed paragraph (c)(6) specified that anticipated underground mining includes all areas of contiguous coal reserves adjacent to an existing or proposed underground mine that are owned or controlled by the applicant. This proposal was included because, barring significant changes in economic or regulatory conditions, the mine would reasonably be expected to extend into those reserves in the future. We received numerous comments requesting that we not adopt the proposed requirement that the cumulative impact area include all areas of contiguous coal reserves adjacent to an existing or proposed underground mine when the applicant owns or controls those reserves. Commenters stated that the requirement was too broad and unworkable and could result in an increased burden on industry and the regulatory authority. Commenters also stated that the information related Start Printed Page 93102to coal reserves may be proprietary, and that the cumulative impact area should be defined based on potential impacts from approved operations and operations that are in some stage of the permit application process instead of resource control or ownership. For the reasons presented by the commenters, we agree that the inclusion of all continuous coal reserves adjacent to an existing or proposed underground mine in proposed paragraph (c)(6) is too speculative. Therefore, we have removed it from the final definition.

When neither baseline data nor analyses have been supplied by the applicant or permittee, a commenter claimed that it may not be technically feasible to assess the impacts of anticipated mining upon water resources during mining and reclamation and after final bond release. We agree that evaluation of potential impacts from areas of existing or anticipated mining on surface water and groundwater resources are not technically feasible in the absence of baseline or other data. This rule sets forth requirements for the collection and analysis of premining data about the site of the proposed mining operation and adjacent areas adequate to establish a comprehensive baseline that will facilitate evaluation of the effects of the proposed operation. If sufficient data is not available on areas of anticipated mining to allow for a meaningful analysis of potential impacts, the regulatory authority cannot approve the permit application in accordance with § 780.21 of this rule. In addition, the commenter continued that we should provide guidance on incorporating anticipated mining areas into the cumulative hydrologic impact assessment. We disagree. The concept of including anticipated mining as part of the cumulative impact area is not new and has been an integral component of the cumulative impact area since the early 1980s. Sections 507(b)(11) and 510(b)(3) of SMCRA [130] 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.” Paragraphs (c)(1) through (3) of the proposed definition, now paragraphs (3)(i) through (iii) are substantively identical to paragraphs (a) through (c) of the previous definition. In addition, over the years, we have published several technical reference documents for the development of cumulative hydrologic impact assessments, including information on anticipated mining activities that provides guidance as requested by the commenter. Those documents are available on our home page on the internet (www.osmre.gov) or upon request.

Several commenters stated there was no justification for a requirement to analyze the anticipated impacts after final bond release and that any requirement to do so was beyond SMCRA authority. In response, we have decided that it is neither feasible nor practical to attempt to predict anticipated cumulative impacts following final bond release. The final definition that we are adopting does not require this analysis of potential impacts after final bond release.

One commenter disagreed with the inclusion of any proposed surface or underground coal mining operation for which a request for an authorization, certification, or permit has been submitted under the Clean Water Act as anticipated mining. We disagree with this comment. Inclusion of proposed operations in situations where the Clean Water Act authorization process has begun will result in preparation of a more comprehensive analysis by the permit applicant or permittee and the regulatory authority. Those operations are within the realm of anticipated mining because the permitting process for those mines has begun, albeit under the Clean Water Act rather than SMCRA. Nothing in section 507(b)(11) of SMCRA [131] limits “anticipated mining” to operations that have begun the SMCRA permitting process. Further, § 780.27(a), about permitting requirements that apply to proposed activities in or through ephemeral streams and § 780.28(a), about additional permitting requirements that apply to proposed activities in, through, or adjacent to a perennial or intermittent stream specifies that if the proposed permit area includes waters subject to the Clean Water Act, the regulatory authority must condition the permit to prohibit initiation of surface mining activities in or affecting those waters before the permittee obtains all necessary authorizations, certifications, and permits under the Clean Water Act.

Ecological Function

We proposed to define the “ecological function” of a stream as the role that the stream plays in dissipating energy and transporting water, sediment, organic matter, and nutrients downstream. The proposed definition included the ability of the stream ecosystem to retain and transform inorganic materials needed for biological processes into organic forms and to oxidize organic molecules back into elemental forms through respiration and decomposition. It further stated that the term includes the role that the stream plays in the life cycles of plants, insects, amphibians, reptiles, fish, birds, and mammals that either reside in the stream or depend upon it for habitat, reproduction, food, water, or protection from predators. Finally, the proposed definition stated that the biological condition of a stream can be used as one measure to infer the status of the stream's ecological function.

Various commenters found the definition to be overly broad, too vague, unclear, or lacking the specificity needed to establish standards for the restoration of ecological function. Other commenters opposed the definition based on the opinion that the definition relied too heavily on research in Appalachia and upon the U.S. Army Corps of Engineers guidance [132] referenced in the preamble to the proposed rule. Other commenters expressed concern that we are mandating specific metrics that may not be applicable to all regions of the country or that may be unreasonably expensive. In response to these comments, and others which voiced concern that compliance with this definition is critical to the determination of bond release, we conducted further analyses to determine how to make this definition more applicable to scientifically defensible standards and to be more clearly measurable, and thus capable of implementation in the context of bond release. Therefore, and for the reasons explained further below, we modified the final rule to define ecological function as “the species richness, diversity, and extent of plants, insects, amphibians, reptiles, fish, birds, mammals and other organisms for which the stream provides habitat, food, water, or shelter. The biological condition of a stream is one way to describe its ecological function.” This definition includes some characteristics of what is often referred to in scientific literature as ecological structure, which often encompasses the abundance and composition of species as a result of Start Printed Page 93103physical, chemical, and biological forces.[133] Our definition of ecological function includes this abundance and composition of species when it refers to the species richness, diversity, and extent of plants, insects, amphibians, reptiles, fish, birds, mammals and other organisms. We are including this characteristic of ecological structure in the final rule definition of ecological function because this rule at § 800.42(d)(2) requires restoration of ecological function in connection with Phase III bond release, and it is therefore necessary to have a definition that indicates the ways ecological function can be measured. The traditional bioassessment tools we require to assess and monitor perennial streams (and intermittent streams where scientifically defensible protocols exist) are appropriate to measure ecological function according to our definition. The last sentence of the definition of “ecological function” specifies that the biological condition of a stream is one way of describing its ecological function. Therefore, unless the regulatory authority determines additional criteria are necessary or appropriate, establishment of a standard based on biological condition (and scientifically defensible bioassessment protocols as described within the final rule within § 780.19(c)(6)) would suffice.

We designed the final definition to better support the various ways in which regulatory authorities throughout the United States will actually have to assess and monitor ecological function in the context of sampling organisms. Some commenters objected to including factors within the definition of “ecological function” that have no direct role in demonstrating the success of reclamation under SMCRA. For example, the commenters noted that the ecological role that a stream plays in transporting nutrients downstream, known as nutrient cycling, is included within the definition, but is not a criterion used in determining eligibility for bond release. Another commenter noted that there is no agreement on objective standards for many facets of the definition. In response to these comments, the final definition eliminates references to physical and chemical processes such as dissipating energy; transporting water, sediment, organic matter, and nutrients downstream; transforming inorganic materials needed for biological processes into organic forms; and oxidizing organic molecules back into elemental forms. We also removed the specific reference to salamanders because that reference could be considered regionally biased and is unnecessary, as salamanders are not part of the ecology of all streams.

Because we are requiring the reestablishment of ecological function as a condition for bond release, we have an obligation to both the permittees and the SMCRA regulatory authorities to provide enough information within the definition to allow for the creation of clear standards for purposes of bond release. This necessitates a definition that gives clear guidance to regulatory authorities on the meaning of ecological function but is still broad enough to allow them to assess and monitor organisms that these regulations do not specifically address. The final rule provides the regulatory authority with a practical definition of “ecological function” that will enable them to create specific standards for assessing ecological function in their various regions. The final definition does not mandate specific metrics, although it does specify that the biological condition of a stream is one way to describe its ecological function. Under this definition, regulatory authorities are free to develop specific standards related to various types of organisms or populations including the use of indirect ways to measure those organisms or populations, such as through leaf litter breakdown.[134] It also recognizes that the presence of various types of populations, such as periphyton, fish, soil microbes, and mammals, could provide support to a finding that ecological function has been restored. The final definition also is designed to allow for future innovations in measuring ecological function as they become available.

Some commenters opposed the proposed definition because of a fear that we (or a third party, pursuant to the citizen suit provisions of section 520 of SMCRA) [135] could initiate action against a state regulatory authority for failure to analyze each facet of the definition during review of the permit application. While the final rule cannot prevent citizen suit litigation, the final rule, when followed, provides sufficient flexibility to defend against this type of challenge.

Finally, some commenters found our proposed definition to be overreaching and academic in nature and noted that methodology for measuring ecological function is still a matter of scientific debate. While we agree that science will continue to evolve on this topic, we disagree that this continued evolution precludes us from defining ecological function as we have done in the final rule. The final definition of “ecological function” merely clarifies our intended meaning of the term. It is not a metric in and of itself and standards for implementing this definition can be adapted, updated, and adjusted as the methodology evolves.

Ephemeral Stream

As discussed in the preamble to the proposed rule, we proposed 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 80 FR 44436, 44470 (Jul. 27, 2015). 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 states that the definition appropriately focuses on the duration of flow and provides that melting snow should not be considered a precipitation event because the development of snowpack over the winter season is not a particular event. See 77 FR 10184, 10262 (Feb. 21, 2012). An industry commenter supported the Corps' treatment of snowmelt as appropriate because in areas where there is an ephemeral channel, snow depth can cause extended runoff which should not be considered in the determination of the channel classification. In a similar vein, a regulatory authority noted that small rills created by rainfall events and snowmelt in the arid and semi-arid landscape should not be considered ephemeral streams; other regulatory authority commenters, however, recognized snowmelt is an important source of streamflow in ephemeral streams and asserted that it should be considered as part of the definition. After reviewing the comments, we are revising the definition of ephemeral streams to include those conveyances receiving runoff from snowmelt events and that have both a bed-and-bank configuration and an ordinary high water mark. Including snowmelt events, in addition to rainfall events, as a primary source of flow is appropriate, as long as groundwater is not a source of surface water flow. The additional requirements that only those conveyances with channels that display Start Printed Page 93104both a bed-and-bank configuration and an ordinary high water mark will ensure that rills created by rainfall or snowmelt events would not be classified as an ephemeral stream.

One commenter strongly advised us to make no reference to the term “swale” as a stream. The commenter stated that in the western United States the term “swale” is commonly used to describe topographic features that are often not waters of the United States under the Clean Water Act because these features lack an ordinary high water mark. The term “swale” was not used in the proposed rule or the final rule. To minimize any confusion concerning what is or what is not a stream, we have revised the stream definitions for “ephemeral stream”, intermittent stream”, and “perennial stream” to include a requirement that any topographic feature to be considered a stream must have both a bed-and-bank and an ordinary high water mark, in addition to the other requirements outlined in the specific definitions.

Excess Spoil

One commenter stated that the proposed definition of “excess spoil” was awkwardly worded. The commenter explained that the concept of “excess spoil” is complicated by the goal of minimizing “excess spoil” to reduce burial of streams. To address this and related comments expressing confusion regarding the term, we added to the definition of “excess spoil” a list of the types of spoil that do not constitute “excess spoil”. This list excludes from the definition of “excess spoil”: Spoil required to restore the approximate original contour of the mined-out area; spoil used to blend the final configuration of the mined-out area with the surrounding terrain in non-steep slope areas; spoil placed outside the mined-out area as part of a remining operation; spoil placed within the mined-out area in accordance with the thick overburden provisions of § 816.105(b)(1) of the final rule, except spoil material placed on the mined-out area as part of an excess spoil fill with a toe located outside the mined-out area; and any temporary stockpile of material that will be subsequently transported to another location.

Other commenters stated that the proposed definition might be misinterpreted to apply to topsoil or to temporary spoil piles. We agree and have revised the final rule to specify that “excess spoil” means spoil material permanently disposed of within the permit area. We further specified that temporary stockpiles of material that will be subsequently transported to another location are not included in the definition. The addition of the word “permanent” and the list explaining what is not considered “excess spoil” should preclude any misinterpretation that excess soil includes spoil or topsoil piles that are recognized as temporary in nature.

Another commenter noted that the proposed definition of “excess spoil” could, perhaps, inadvertently, designate material placed in an existing bench to be classified as “excess spoil”. This commenter explained that spoil material placed on an existing bench above the approximate original contour would be subject to the more stringent proposed requirements for excess spoil disposal. According to the commenter, this would result in an increased burden to both industry and regulatory authorities while not providing additional stability or stream protection. Interpretation of the commenter's term “existing bench” could be viewed in two ways. One interpretation is that the “existing bench” is actually a previously mined bench. The other interpretation is that the “existing bench” is new construction as part of an active operation. If the first interpretation of the commenter's term is accepted—considering a bench on a previously mined area—we note that spoil placement on previously mined benches is preferable to construction of “excess spoil” on unmined land because it is more environmentally sound. In response, we revised the definition to exclude spoil material placed outside the mined-out area as part of a remining operation as explained within § 816.106 or § 817.106 of the final rule. Next, we considered the second potential interpretation—that the commenter's term “existing bench” pertains to construction as part of a current operation. The commenter is concerned that the classification of “excess spoil” includes spoil material placed in a manner that the lower portion of that spoil extends onto an open bench, most likely a bench developed along a lower coal seam mined, and the spoil material is placed at an elevation that is above the original elevation line. For the purposes of responding to this comment, we consider the commenter's reference to “original elevation line” to mean the approved approximate original contour surface. In the scenario that the commenter describes, the spoil material is placed on a newly created bench that is within the mined area and is therefore not considered “excess spoil”. To further address the commenter's concern, we direct the commenter to § 780.35(b)(3) of the final rule that discusses the minimization and disposal of excess spoil. This section of the rule allows the placement of what would otherwise be “excess spoil” on the mined-out area to heights in excess of the approved approximate original contour surface. The purpose of § 780.35(b)(3) is to avoid or minimize construction of excess spoil fills on undisturbed lands. When considering the definition of excess spoil and the provisions of § 780.35(b)(3), spoil placed above the approved approximate original contour as described in the commenter's scenario is not considered “excess spoil.”

One commenter stated that the proposed changes to the “excess spoil” definition are primarily focused on mountaintop removal and thick overburden mines and have little relevance outside Appalachia, and that they should therefore be limited to Appalachia. We acknowledge that “excess spoil” is primarily generated in central and southern Appalachia where both thick overburden and steep slopes are prevalent. However, mines in other regions also generate “excess spoil”. For example, Alaska has a permit that generates excess spoil. Further, by definition, excess spoil is only applicable to those areas where it is generated, so, by default, if an area does not generate excess spoil then the rule provisions that pertain to excess spoil would not apply on that location.

One commenter indicated that the proposed preamble discussion implies that box cut spoil placed outside of the pit is not excess spoil for non-steep slope mining. We agree, noting that, by definition, the creation of box cut spoil on non-steep sloped areas does not automatically qualify this material as excess spoil, as this spoil is available for placement within the mined area and outside of the mined area when used to blend with the surrounding terrain.

Fill

We received no comments on this proposed definition, which we are adopting as proposed.

Form

Within §§ 780.28, 784.28, 800.42, 816.57, and 817.57 of the proposed rule, relating to activities in through, or adjacent to perennial and intermittent streams, we made reference to the restoration of the “form” of a stream. Specifically, the proposed rule required applicants desiring to mine through or divert a perennial or intermittent stream to “demonstrate that [they could] restore the form . . . of the affected stream. Start Printed Page 93105. . .” [136] Additionally, in §§ 816.57 and 817.57 [137] we proposed that “form” of a stream segment must be restored. We explained in the preamble to the proposed rule that:

a restored stream channel or a stream-channel diversion need not exactly replicate the channel morphology that existed before mining . . . it must have a channel morphology comparable to the premining form of the affected stream segment in terms of baseline stream pattern, profile, and dimensions, including channel slope, sinuosity, water depth, bankfull depth, bankfull width, width of the flood-prone area, and dominant in-stream substrate particle size.[138]

Despite this explanation in the preamble, several commenters questioned the meaning of the term “form” and how this term related to the term “function” that was also discussed in the proposed rule. Similarly, many commenters questioned the application of and relationship to the term “form” to the bond release provisions of § 800.42(b)(1) of the proposed rule and references to bond release within proposed §§ 780.28, 784.28, 800.42, 816.57, and 817.57. After consideration of these comments, we agree that the use of the term “form” and the similar term “hydrological form” within the proposed rule could be confusing. Therefore, we have eliminated any reference to “hydrological form” and included in § 701.5 a definition of the term “form”. The term “form” as used in the proposed rule in § 816.57(b)(2)(i) and in the final rule definition was drafted based on the criteria established in “Applied River Morphology” by Rosgen.[139]

The addition of the definition of “form” will also provide clarity regarding the requirements for achieving Phase I bond release when mining through or permanently diverting a perennial or intermittent stream as discussed and explained more thoroughly throughout the applicable sections of the final rule preamble discussion.

The term “form,” as used in §§ 780.28(e)(1)(viii), 784.28(e)(1)(viii), 800.42(b)(1), 816.57(e), and 817.57(e), means the physical characteristics, pattern, profile, and dimensions of a stream channel. It is necessary to define the “form” of a stream because it greatly influences a stream's “hydrologic function,” which is also a term we are incorporating into the final rule for clarity. As contained in the final rule, the term “form” includes, but is not limited to, the flood-prone area to bankfull width ratio (entrenchment), channel width to depth ratio, channel slope, sinuosity, bankfull depth, dominant in-stream substrate particle size, and capacity for riffles and pools.

Specific to the definition of “form,” entrenchment defines the extent of flood prone area relative to channel size and, therefore, the areas in which hydrophilic and hydrophytic plant species are most adaptable. Channel width-to-depth ratio, in conjunction with channel slope, determines the discharge that, over time, transports most sediment downstream. Sinuosity directly influences channel slope. The dominant in-stream substrate particle size is dependent on discharge at bankfull stage and channel slope, and determines the nature of in-stream habitat and the types of biota that will dominate given appropriate water quality and nutrient availability. Additionally, in a natural or properly restored stream these components of “form” reach equilibrium such that they all remain relatively constant, even as the dynamic stream exists in a constant state of flux, with meanders migrating downstream, and the stream channel at any given location moving back and forth across the flood prone area. All of these features are integral to restoring “form” and ultimately to achieving successful stream restoration. Establishment of “form” is a prerequisite to achieving “hydrologic function.”

Fugitive Dust

We proposed to remove this definition because it defines a term that we no longer use in our regulations. See 80 FR 44436, 44471 (Jul. 27, 2015).[140] We received no comments on the deletion of this term, so we are adopting our proposed action of deletion.

Groundwater

We proposed to revise the definition of groundwater to provide clarity and to replace the words “ground water” with the single word “groundwater” throughout our regulations for internal consistency. Specifically, our proposed definition was adapted from a publication entitled “The ABCs of Aquifers” [141] and Freeze and Cherry's “Groundwater.” [142] Under the proposed rule, we defined “groundwater” to mean subsurface water located in those portions of soils and geologic formations that are fully saturated with water; that is, those zones where all the pore spaces and rock fractures are completely filled with water. In conformity with plain language principles it is important to avoid redundancy. Therefore, in the final rule we have removed the phrase, “i.e., those zones where all the pore spaces and rack fractures are completely filled with rock” as this is inherent in the meaning of the phrase “saturated with water”, rendering the former phrase redundant.

We received comments from a regulatory authority that suggested that we define groundwater as “any water that is beneath the ground surface.” We do not concur. It would not be appropriate to define groundwater in those terms because the definition proposed by the commenter is not used by the scientific community. Another commenter said that the term “fully” was not necessary in our definition. Although we agree with the commenter that the term “fully” may be superfluous in some instances, we retained the definition based upon our review of scientific literature including Freeze and Cherry.[143]

Another commenter concerned about restoring perched aquifers within the permit area opined that perched aquifers are often difficult to differentiate from temporary saturation of the soil horizon as a result of precipitation events. We disagree. A perched aquifer has distinct properties, such as saturated permeable sediments overlying discontinuous impermeable sediments that are not found in soil horizons. The geologic information the permittee is required to collect as part of the permit application process under final rule §  780.19(f) will provide the information needed to differentiate a perched aquifer from a temporarily saturated soil horizon within the permit area.

Another commenter asserted that the proposed definition for “groundwater” included water in regional and perched aquifers. The same commenter was also concerned with the inclusion of “perched aquifers” in the definition of groundwater. The commenter was concerned that mining through a perched aquifer within the permit area would no longer be allowed because it would be considered impacts to groundwater, constituting material Start Printed Page 93106damage of the hydrologic balance outside the permit area. We disagree with both of the commenter's assertions. First, under our previous definition of groundwater,[144] perched aquifers, local aquifers, and regional aquifers are all included in the definition. Therefore, there is no change in this respect to the definition of groundwater in the final rule; we merely listed specific aquifer types for the sake of clarity. In the proposed rule, we inadvertently excluded “local aquifer” from the list of types of aquifers. This was an oversight; therefore, we added “local aquifer” to the final rule definition of “groundwater”. Secondly, the commenter's assertion that mining through a perched aquifer within the permit area would no longer be permissible is not accurate. As stated in the preamble,[145] perched aquifers could be mined through within the permit area and need not be restored unless restoration is needed to prevent material to the hydrologic balance outside the permit area.

Another commenter suggested that we mention in the definition of groundwater that the terms “aquifer” and “water table” are sometimes used to mean the same thing in our regulations. The terms do not mean the same thing and we have used the terms consistently and correctly throughout the preamble and final rule. Aquifer means a zone, stratum, or group of strata that can store and transmit water in specific quantities for a specific use.[146] Water table is the level (elevation) in the saturated zone at which the hydraulic pressure is equal to atmospheric pressure.[147] We use both of these terms, consistently in the final rule and not as implied by the commenter. The same commenter also asserted that we should include in the final definition the fact that groundwater water levels may vary seasonally. Although we agree with the commenter that groundwater levels may vary seasonally, it is not necessary to include this fact in the definition of groundwater. However, a requirement exists in final rule § 780.19(b) that the permit application must include information sufficient to document seasonal variations in the quality, quantity, and usage of groundwater, including all surface discharges within the proposed permit area and adjacent area.

We received another comment stating that the definition of groundwater did not need to be changed from the existing regulations. However, as stated in the preamble to the proposed rule,[148] these revisions are necessary to provide clarity and consistency.

Highwall Remnant

We received no comments on our proposed removal of this definition, which we are removing as proposed.

Hydrologic Balance

We proposed to revise our definition of “hydrologic balance” in § 701.5 to include more emphasis on water quality by specifying that the definition encompasses “interactions that result in changes in the chemical composition or physical characteristics of groundwater and surface water, which may in turn affect the biological condition of streams and other water bodies.” Several commenters either questioned the rationale for inclusion of the latter phrase or erroneously interpreted it as incorporating biological condition into the definition. The commenters opposed the proposed addition, asserting that the definition of “hydrologic balance” should focus on water quality and quantity and not the aquatic community.

We never intended for biological condition to be part of the definition of “hydrologic balance” which we agree should be limited to water quality, quantity, movement, and storage. Therefore, the definition that we are adopting as part of this final rule does not include the phrase “which may in turn affect the biological condition of streams and other water bodies.” However, that phrase is an accurate statement in that interactions that result in changes in the chemical composition or physical characteristics of groundwater and surface water may indeed affect the biological condition of streams and other water bodies, which is one of the reasons that the impact of mining and reclamation on the hydrologic balance is a primary focus of SMCRA and the permitting process.

One commenter stated that the definition should be limited to the flow, quantity, and physical form of water. According to the commenter, the definition should not include any mention of water quality. We disagree. SMCRA quite clearly includes water quality as a component of the hydrologic balance. For example, section 515(b)(10) [149] requires that surface coal mining operations minimize disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas by various methods, including avoiding acid or other toxic mine drainage and preventing, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow. Both of these methods address water quality issues.

Hydrologic Function

Within §§ 780.28, 784.28, 800.42, 816.57, and 817.57 of the proposed rule, relating to activities in through, or adjacent to perennial or intermittent streams, we made reference to the restoration of the “form” of a stream. Specifically, the proposed rule required applicants desiring to mine through or divert a perennial or intermittent stream to “demonstrate that [they could] restore the form . . . of the affected stream . . . .” [150] Additionally, in §§ 816.57 and 817.57,[151] we proposed that “form” of a stream segment must be restored. We explained in the preamble to the proposed rule that:

a restored stream channel or a stream-channel diversion need not exactly replicate the channel morphology that existed before mining. . . it must have a channel morphology comparable to the premining form of the affected stream segment in terms of baseline stream pattern, profile, and dimensions, including channel slope, sinuosity, water depth, bankfull depth, bankfull width of the flood-prone area, and dominant in-stream substrate.[152]

Despite this explanation in the preamble, several commenters questioned the meaning of the term “form” and how this term related to the term “function” that was also discussed in the proposed rule. Similarly, many commenters questioned the application of and relationship to the term “form” to the bond release provisions of § 800.42(b)(1) of the proposed rule and references to bond release within §§ 780.28, 784.28, 800.42, 816.57, and 817.57. After consideration of these comments, we agree that the use of the term “form” and the similar term “hydrological form” within the proposed rule could be confusing. Therefore, we have eliminated any reference to “hydrological form” and have included a definition of the term “hydrologic function” in § 701.5. The term “hydrologic function,” is a term we are incorporating into the final rule for clarity.

The addition of the definition of “hydrologic function” will also provide clarity regarding the requirements for achieving Phase II bond release when mining through or permanently Start Printed Page 93107diverting a segment of a perennial or intermittent stream as discussed and explained more thoroughly throughout the applicable sections of the final rule preamble discussion.

The term “hydrologic function”, as used in §§ 780.28(e), 784.28(e), 800.42(b)(2), 816.57(f), and 817.57(f), refers to the role that streams play in transport of water and flow of water within the stream channel and floodplain. As contained in the final rule, the term “hydrologic function” includes total flow volume, seasonal variations in streamflow and base flow, and provisions of the water needed to maintain floodplains and wetlands associated with the stream. Establishment of “hydrologic function” occurs after achieving “form.” The “form” of the stream has a significant impact on hydrologic function.

Intermittent Stream

As discussed in the preamble to the proposed rule,[153] we proposed 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 [154] under section 404 of the Clean Water Act.[155] Additionally, we proposed to remove paragraph (a) of our former definition of “intermittent stream.” See 80 FR 44436, 44472 (Jul. 27, 2015). We received differing opinions on this invitation for comment. One regulatory authority and other commenters supported the proposed deletion while others urged the retention of paragraph (a), which provided that an intermittent stream means “a stream or reach of a stream that drains a watershed of at least one square mile. . . .” This former definition functioned to automatically designate any stream or reach of stream that drains a watershed of at least one square mile as an intermittent stream. We agree with the commenters supporting the deletion of paragraph (a) because the former definition is inconsistent with generally accepted stream classification systems because it is based on watershed size rather than streambed characteristics, duration, and source of streamflow. Therefore, we are not including paragraph (a) as it existed in the former regulation within the definition of “intermittent stream” in the final rule.

We received comments requesting that we add runoff from snowmelt events to the definition. For the same reasons explained in the preamble to the “ephemeral stream” definition, we are adding reference to “snowmelt” within the definition of “intermittent stream.”

One commenter suggested the definition should be tied to the number of months in each year that snowmelt normally contributes to the baseflow in the stream. This comment was not accepted because the “intermittent stream” definition recognizes that snowmelt provides supplemental flow and that supplemental flow may only occur during certain times of the year.

Another commenter pointed out that the proposed definition of “intermittent stream” did not explicitly mention the relationship the stream has to the water table. The commenter thought this was problematic because we included the relationship in the proposed definition of “perennial stream”. For the purposes of consistency and clarity we added a statement in the final rule definition that describes the relationship between the water table and an intermittent stream.

One commenter opined that the definition of “intermittent stream” should address whether a stream's function is impaired by change in flow and potential change in frequency, duration, magnitude, rate of change, and timing of flows. We did not accept this comment because functional impairment from water quantity changes is more appropriately addressed by the definition of “material damage to the hydrologic balance outside the permit area” found at § 701.5, and explained in this preamble.

Although we specified within the proposed definition that an “intermittent stream” means “a stream or part of a stream that has flowing water during certain times of the year when groundwater provides water for streamflow” several commenters questioned the extent to which groundwater should be considered in the definition of “intermittent stream.” Some commenters requested that the definition of “intermittent stream” specify that the groundwater contribution is from an aquifer and not a result of man-made features such as upstream reservoirs, groundwater pumped to the surface, or irrigation return flows. In addition, several commenters recommended the definition require that there be a contribution from groundwater and not strictly surface water runoff. Another commenter requested clarification that the mere occurrence of snowmelt in spring would not automatically make a stream “intermittent” rather than “ephemeral.” In consideration of these comments, we clarified the definition of “intermittent stream.” Within the final rule the definition of “intermittent stream” now includes the clarifying statement: “[t]he water table is located above the streambed for only part of the year, which means that intermittent streams may not have flowing water during dry periods.” Additionally, we agree with commenters that snowmelt should be considered a supplemental source of water for streamflow. Therefore, we have incorporated “snowmelt” into the final rule definition.

A commenter asserted that based on the proposed definition of “intermittent stream” and the prohibition of the placement of sedimentation control structures in a perennial or intermittent stream, coal mining would be severely and negatively impacted in the western region. The commenter implies that because intermittent streams with nominally, low-yield base flow from spring discharges are common in the western region, the proposed definition would change the stream classification. We disagree. Neither the proposed definition nor the definition within the final rule has any effect on the steam designation because both definitions require contribution of groundwater flow to the stream during parts of the year. In addition, the commenter opined that there should be an allowance for sediment control systems for other mining areas in relationship to intermittent streams similar to the exceptions allowed for excess spoil fills and steep-slope areas as provided in proposed paragraph (c) of § 816.57 and discussed within the preamble to the proposed rule.[156] The exceptions outlined in the proposed rule are incorporated into the final rule because in some steep-slope areas the only place to install a sedimentation control structure is in the stream. This is discussed in more detail in the preamble discussion of paragraph (h) of § 816.57.

Similar to the explanations within the definitions of “ephemeral” and “perennial” streams and to address commenters' confusion concerning what is or what is not a stream, we have revised the definition of “intermittent stream” to clarify that an “intermittent stream” only includes those conveyances with channels that display both a bed-and-bank configuration and an ordinary high water mark. The addition is consistent with the preamble discussions of the “ephemeral stream” and “perennial stream” definitions.

One commenter opined that linking the SMCRA definitions of ephemeral Start Printed Page 93108and intermittent streams to the definitions of those terms in the U.S. Army Corps of Engineers 2012 Nationwide Permit may result in our definitions becoming obsolete when the nationwide permits are re-evaluated. After considering the comments, we are not adopting the U.S. Army Corps of Engineers' definition verbatim.

Invasive Species

Some commenters requested the final rule include definitions of “invasive species,” “non-invasive species,” and “native species.” Other commenters requested that we allow the regulatory authority to have latitude to define these terms. In response, we are adding two definitions to the final rule. We are defining “invasive species” and “native species” in the final rule. In the preamble to the proposed rule at § 780.12(g) [157] we referenced Executive Order 13112,[158] which focused on “invasive species.” This 1999 Executive Order included definitions of both “invasive species” and “native species.” On December 5, 2016, the 1999 Executive Order was amended by Executive Order 13751.[159] Executive Order 13751, entitled “Safeguarding the Nation from the Impacts of Invasive Species,” includes a slightly modified definition of invasive species as compared to the 1999 Executive Order. Because the 1999 Executive Order language more closely tracks the language of SMCRA related to protection of the human health and the environment, with one minor change for grammatical improvements, we are incorporating the definitions from the 1999 Executive Order into the final rule:

In response to the commenters that suggested that we allow the regulatory authority latitude to define these terms, we do not agree. It is important to have uniform definitions of these terms, and these definitions, adapted from the 1999 and 2016 Executive Orders, accomplish that objective. These final definitions of “invasive species” and “native species” satisfy the purposes of SMCRA, are appropriate, will provide sufficient guidance to regulatory authorities, and are generally consistent with the applicable Executive Orders. For example, although our definition of “invasive species” contains the term “alien species” and the definition in Executive Order 13751 does not, our use of that term is consistent with that Executive Order's new definition of “alien species.” In response to the request to define “non-invasive species,” we decline because those species that are not defined as invasive species will be classified as non-invasive species.

Land Use

One commenter stated that we should use or recognize international definitions of “land use” such as the definitions from the Organisation for Economic Co-operation and Development because these definitions are more practical when recognizing economic and cultural activities associated with human use of the land. The commenter further stated that we should explain the meaning of “support facilities” and “integral part of the use” included within the definition of “land use.” The existing definition of “land use” is sufficient. Moreover, as these terms were included in the previous version of the definition of “land use” and not otherwise proposed for change, we see no need to further explain their meaning or to use other definitions as suggested by the commenter. Our reason for changing this definition to include the sentence, “[e]ach land use category includes land used for facilities that support the land use” is to ensure the definition is aligned with our corresponding changes to §§ 780.24 and 784.24. The alterations of this section allow for modification of postmining land uses from premining without requiring approval of higher and better use if the land that existed before mining was already capable of supporting that use in its existing condition. We did not receive any comments on this aspect of definition change.

Material Damage

This definition discusses “material damage” in the context of the subsidence control provisions of §§ 784.30 and 817.121, which we have clarified in this final rule. Several commenters raised concerns about the effects of subsidence on the land and waters overlying the underground mining activities. Commenters also raised concerns about the applicability of the definition of “material damage” (in the context of underground mine subsidence) to hydrologic features and recommended that subsidence damage to surface waters be more specifically regulated. Many of these concerns are discussed in Part IV.K. of the preamble which discusses material damage from subsidence and in the preamble discussion to our definition of material damage to the hydrologic balance outside the permit areas in § 701.5 of this preamble. Other comments are discussed in the sections of the preamble that address the changes we have made to our subsidence control plan provisions at § 784.30 (previously § 784.20), or that explain the measures to prevent, control, or correct damage resulting from subsidence at § 817.121. Notably, as explained more fully in our preamble discussion at Part IV.K., we are revising the definition of “material damage” in the context of the subsidence control provisions of §§ 784.30 and 817.121 to specifically include wetlands, streams, and bodies of water. Adding these features to the definition clarifies that not only subsidence damage to surface lands but also subsidence damage resulting in functional impairment of wetlands, streams, and bodies of water, must be repaired pursuant to the subsidence repair provisions of § 817.121(c). As previously explained, we have required operators to address impacts and correct subsidence damages to land and water features since 1995 when we published the final rule addressing the subsidence provisions of the Energy Policy Act of 1992. Thus, by adding “wetlands, streams, and bodies of water” to the definition of “material damage” in the subsidence context, we are merely reinforcing our longstanding position.

Some commenters requested that the final rule specifically address material damage to the hydrologic balance outside the permit area from longwall mining that adversely impacts the productivity of prime farmland. Longwall mining is a method of underground mining that results in planned subsidence. The commenters suggested revisions to several provisions of our regulations, including the definition of “material damage” in the context of subsidence in § 701.5, our subsidence control regulations in § 784.30 (previously § 784.20), and our prime farmland restoration regulations in § 785.17.

We decline to adopt the recommended revisions. We do not interpret SMCRA as authorizing protection of prime farmland from the impacts of subsidence from longwall mining operations beyond the degree of protection afforded by § 817.121(c) of our final rule. Section 516(b)(1) of SMCRA [160] does not require that operations using mining technology that requires planned subsidence in a predictable and controlled manner (primarily longwall mining) adopt measures to prevent subsidence from causing material damage to the extent technologically and economically Start Printed Page 93109feasible. However, our regulations at § 817.121(c) provide that, to the extent technologically and economically feasible, the permittee of any type of underground mine, including longwall mines, must correct any material damage resulting from subsidence caused to surface lands, wetlands, streams, or water bodies by restoring the land and water features to a condition capable of maintaining the value and reasonably foreseeable uses that the land was capable of supporting before subsidence damage occurred. Our definition of “material damage” in final § 701.5 in the context of subsidence includes any functional impairment of surface lands, features, including wetlands, streams, and bodies of water, structures or facilities, and any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or that causes a significant loss in production or income. Therefore, under final § 817.121(c), to the extent technologically and economically feasible, the permittee must repair any surface lands, including prime farmland, whenever subsidence resulting from underground mining causes significant loss in production or income or has a significant adverse impact on the capability of the land to support the uses that it supported before subsidence damage occurred. In addition, we added § 817.121(c)(2), which requires that the permittee implement fish and wildlife enhancement measures, as approved by the regulatory authority in a permit revision, to offset subsidence-related material damage to wetlands or a perennial or intermittent stream when correction of that damage is technologically and economically infeasible.

Material Damage to the Hydrologic Balance Outside the Permit Area

We received numerous general and specific comments on various aspects of our proposed definition for “material damage to the hydrologic balance outside the permit area.” Several commenters requested that we refrain from finalizing a definition and continue to allow regulatory authorities the flexibility to define the term for their jurisdictions in order to best reflect local conditions. These commenters often focused on the diversity of the country and objected to the perceived “one-size-fits-all” approach of the proposed definition. Some commenters noted that some states, such as West Virginia and Montana, already have definitions of the term. Other states define “material damage to the hydrologic balance outside the permit area” on a case-by-case basis. Similarly, some commenters suggested that, instead of a uniform federal definition of “material damage to the hydrologic balance outside the permit area”, we could better address the concerns that we raised in the preamble to the proposed rule by providing technical support to the regulatory authorities so that they could be equipped to define “material damage to the hydrologic balance outside the permit area” in their own states.

We agree with these commenters in part—states do need the flexibility to define “material damage to the hydrologic balance outside the permit area” to account for local and regional differences in geology, hydrology, mining, and reclamation. However, a federal definition is necessary to provide guidance and clarity to the regulatory authorities as they define the term for their own jurisdictions. As discussed in more detail in the preamble to the proposed rule, our previous rules did not contain a definition of “material damage to the hydrologic balance outside the permit area,” and, in the more than 30 years since SMCRA's enactment, very few states have adopted a definition.[161] As a result of the lack of a definition, what constitutes “material damage to the hydrologic balance outside the permit area” varies greatly. This has led to differences in enforcement across the country. These differences have also resulted in coal field water quality data that shows significant coal mining impacts in many streams across the country.[162] For these reasons, we are adopting a definition of “material damage to the hydrologic balance outside the permit area” that provides minimum nationwide standards while also providing each regulatory authority with the flexibility to tailor the definition to meet the needs of its jurisdiction while ensuring minimal standards are met.

To help clarify the regulation and to comply with the requirements of the Office of the Federal Register, we have revised and re-designated proposed paragraphs (a) and (b) of the definition into three paragraphs (1), (2), and (3).

The basic definition now provides that “material damage to the hydrologic balance outside the permit area” is an adverse impact, from surface coal mining and reclamation operations, underground mining activities, or subsidence associated with underground mining activities, on the quality or quantity of surface water or groundwater, or on the biological condition of a perennial or intermittent stream.” What constitutes an adverse impact for determining material damage to the hydrologic balance outside the permit area is now based on consideration of certain types of reasonably anticipated or actual effects of the operation, such as effects that (1) cause or contribute to a violation of applicable state or tribal water quality standards or a state or federal water quality standard established for a surface water outside the permit area under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), or, for a surface water for which no water quality standard has been established, effects that cause or contribute to non-attainment of any premining use of surface water outside the permit area; (2) preclude a premining use of groundwater outside the permit area; or (3) result in a violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.

The combination of the basic definition and procedures for considering the types of effects that constitute material damage to the hydrologic balance outside the permit area in paragraphs (1) through (3) is substantively similar to the proposed definition, with several exceptions. First, we deleted the references in the proposed definition to reasonably foreseeable uses based on comments from the public, state regulatory authorities, and other federal agencies. Among other things, the term “reasonably foreseeable uses” is too speculative for purposes of this definition. Second, we also deleted references to “existing use,” because, as some commenters noted, it could create confusion because the regulations implementing the Clean Water Act define that term in the context of that law. To avoid any possible confusion, as some commenters suggested, we replaced “existing” with “premining” in paragraph (2) and added a definition of that term in § 701.5. That definition provides that “premining” refers to the conditions and features that exist on a site at the time of application for a permit to conduct surface coal mining operations.

This revised definition also removes the proposed definition's direct reference to designated uses. We made this change for two reasons. First, the concept of water quality standards under the Clean Water Act, includes, but is ultimately broader than using just designated use. Designated uses are part of the water quality standards, along with water quality criteria, antidegradation provisions, and other Start Printed Page 93110policies each respective state develops to help implement the Clean Water Act. Consideration of all of these components of water quality standards provides a more complete evaluation of what constitutes material damage to the hydrologic balance outside the permit area.

Second, we wanted to emphasize the relationship between the requirements of SMCRA and Clean Water Act as it relates to surface water affected by coal mining operations. Thus, the final definition of material damage to the hydrologic balance outside the permit area better reconciles the requirement of SMCRA to perform a cumulative hydrologic impact assessment with the jurisdiction given to the Clean Water Act authority for the Nation's waters. It also highlights the need for coordination between the regulatory authority and the appropriate Clean Water Act authorities to develop the CHIA and to make the appropriate findings that the operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

In order to effectively implement this definition, the regulatory authority and appropriate Clean Water Act authorities should coordinate during the permit application process consistent with the requirements of the final rule. After permit issuance, they should also jointly investigate potential water quality violations related to coal mining operations, as appropriate. At both of these stages, this coordination focuses on exchanging project specific information to provide the regulatory authority with information to better assess the effects of the operation on the cumulative impact area. This process should focus on the pertinent water quality standards in force for the specific site and any applicable state or tribal polices governing low flow, mixing zones, and/or any variances in play to ensure an appropriate evaluation of what constitutes material damage to the hydrologic balance outside the permit area, where it should be measured, and what material damage and evaluation thresholds are applicable for each situation. This process should enhance regulatory certainty for permit applicants and operators because it will minimize or eliminate conflicts between the agencies concerning impacts to receiving water bodies and identify measures that should be adopted to comply with the requirements of both statutes.

A commenter expressed concern that the proposed definition was impossible to interpret and evaluate in regard to compliance with SMCRA. We disagree; interpretation and compliance with this definition is possible for several reasons. For the first time since SMCRA was enacted, a federal definition of material damage to the hydrologic balance outside the permit area describes levels of unacceptable changes to the hydrologic balance that result from a SMCRA operation. These unacceptable impacts include precluding the attainment of Clean Water Act water quality standards, not maintaining premining use for groundwater, and effects that result in a violation of the Endangered Species Act. As previously stated, post-SMCRA mining has impaired receiving streams, which is an unacceptable effect of current mining practices under the Act. If the concept of material damage to the hydrologic balance outside the permit area had been more clearly understood or defined, these impacts should have been prevented.

Commenters have generally cited two situations in which it will be impossible for regulatory authorities to apply the proposed definition. First, they claim that a one-time or temporary occurrence should not constitute material damage to the hydrologic balance outside the permit area. As discussed in more detail below, we generally agree, as long as the temporary occurrence does not affect the stream to the extent that, for example, the stream fails to satisfy applicable water quality standards or violate the SMCRA material damage thresholds set for the site. However, over the years, regulatory authorities, including us, have witnessed single or temporary events of large magnitude that have risen to the level of “material damage to the hydrologic balance outside the permit area”. These events clearly violated the Clean Water Act water quality standards of the streams affected. Second, these commenters contend that the definition does not allow natural and non-mining conditions to be factored into whether a stream maintains its applicable water quality standards. As discussed below, we disagree. The definition allows natural, non-mining, and mining-caused stream variations as long as the stream maintains its applicable water quality standards. The definition simply provides a common framework from which to assess impacts to receiving bodies of water. Latitude exists within this definition for regulatory authorities to tailor the specific meaning of “material damage to the hydrologic balance outside the permit area” to suit their particular state and situations encountered at specific mines. In addition, if the designated use is inaccurate or unattainable for natural or other reasons, the Clean Water Act authority has the flexibility under the Clean Water Act and the implementing regulations at 40 CFR part 131 to revise the designated use to more accurately reflect the highest attainable designated use.

A commenter also asserted that the definition, as proposed would result in denial of all future permit applications. We disagree. As previously stated, material damage to the hydrologic balance outside the permit area only occurs when a mining operation causes a stream not to satisfy its applicable Clean Water Act water quality standards or an aquifer to not meet its premining use. Variations in water quality, quantity, biological condition, and/or aquatic habitat can occur as long as the stream satisfies is applicable Clean Water Act water quality standards or an aquifer meets its premining use. A mining operation can have an adverse effect on a receiving stream as long as the stream still satisfies its applicable water quality standards, an aquifer meets its premining use as determined by the SMCRA regulatory authority, and no violations of the Endangered Species Act are occurring. For example, a reduction in a stream's index of biotic integrity score would not constitute “material damage to the hydrologic balance outside the permit area” if the stream is satisfying its applicable Clean Water Act water quality standards and not in violation of the Endangered Species Act. Similarly, a reduction in an aquifer's water quality parameter concentrations is not “material damage to the hydrologic balance outside the permit area” as long as the aquifer is meeting its premining use and it is not preventing an adjacent receiving stream from satisfying its applicable Clean Water Act water quality standards or if no designated use is defined, its premining use outside the permit area. The concept of Clean Water Act water quality standards has always existed in both the Clean Water Act and has been relevant in SMCRA analyses since the inception of both statutes, see, e.g., section 508(a)(13) of SMCRA. This approach taken in our definition, consequently, is not a new one; the definition simply codifies a system that has existed for more than thirty years and under which many permits have been issued.

A commenter objected to our statement in the proposed rule that because the Clean Water Act does not apply to groundwater, the regulatory authority would need to use “best judgment” to establish “material damage to the hydrologic balance” criteria to protect existing and Start Printed Page 93111foreseeable uses of groundwater. The commenter asserted that the use of term “best judgment” was not sufficiently clear and would negatively impact the operator and, thus, it should be eliminated. First, “best judgment” does not appear in the regulation. Instead, it is in recognition of the many decisions the regulatory authority must make about a specific coal mining operation. The regulatory authority makes these decisions using their “best judgment” based on the information and data gleaned during the decision making process. This is wholly appropriate, and we are not making any changes to the final rule in response to this comment.

Several commenters implied that material damage to the hydrologic balance outside the permit area should arise any time a partial degradation to surface water or groundwater occurred. Specifically, they suggested that as part of the definition, we should require that material damage to the hydrologic balance outside the permit area include impacts that “partially or significantly degrade” or “partially, completely eliminate, or significantly degrade” any designated use under sections 101(a) or 303(c) of the Clean Water Act or any existing or reasonably foreseeable use of surface water or groundwater outside the permit area. We disagree that material damage to the hydrologic balance outside the permit area occurs every time a stream or groundwater is partially degraded, or in some circumstances significantly degraded, because the terms “partially” and “significantly” are subjective, do not convey a sense of magnitude, and are open to interpretation and abuse. Both the Clean Water Act and SMCRA allow some variation in water quality. For instance, the Clean Water Act recognizes that in some situations water quality may vary while still being protective of the designated use. However, if the ambient quality is on the verge of the ambient water quality criterion level, then any amount of degradation could impair the designated use. In addition, section 515(b)(10) of SMCRA [163] requires operations to minimize material damage to the hydrologic balance inside the permit boundary and section 510(b)(3) of SMCRA requires that the proposed operation be “designed to prevent material damage to hydrologic balance outside [the] permit area.” [164] SMCRA, therefore, allows damage to the hydrologic balance as long as that damage does not rise to the level of material damage outside the permit area. Therefore, adoption of a standard that does not allow any variation in water quality or quantity within a designated use category is not consistent with SMCRA.

Some commenters expressed concern that the definition as proposed would prohibit any adverse impacts at all and would, for example, consider temporary or minor impacts to be “material damage to the hydrologic balance outside the permit area.” As explained above, we disagree that the definition prohibits “any impact” outside the permit area. The concept of water quality standards has inherent flexibility within the standards that allow temporary and minor impacts outside the permit area as long as the magnitude of those impacts does not violate applicable Clean Water Act water quality standards for the surface water under review. This change, when read in context of the entire definition, supports the intent of SMCRA, which allows some change in baseline conditions provided that those changes are not of such magnitude that a stream is incapable of attaining its applicable Clean Water Act water quality standards.[165] For example, if the impact from a mining operation causes a measurable decrease in a stream's index of biotic integrity value, but the stream is still attaining its water quality standards under the Clean Water Act, this would not be considered material damage to the hydrologic balance outside the permit area under the definition we are finalizing today. Similarly, temporary impacts would be allowed unless those impacts violate applicable Clean Water Act water quality standards or results in a violation of the Endangered Species Act. Some temporary impacts—such as dewatering a stream for all but a de minimis amount of time or discharges containing parameters of concern in sufficient quantities—may, however, rise to the level of material damage to the hydrologic balance outside the permit area if those impacts violate applicable Clean Water Act water quality standards. Therefore, incorporating the concept of the Clean Water Act water quality standards into this definition as a benchmark to determine material damage to the hydrologic balance outside the permit area accommodates the seasonal and natural fluctuation inherent in natural systems and allows some level of impact to the hydrologic balance consistent with SMCRA while also providing a point of reference for determining when the level of impact becomes detrimental to the hydrologic balance outside the permit area.

In the underground mining context, one commenter opined that the rule should specifically mention that a regulatory authority cannot approve a permit application unless it determines that the proposed operation is not predicted to cause subsidence that would result in the dewatering of any perennial or intermittent stream. Our final rule defines material damage to the hydrologic balance outside the permit area to encompass an adverse impact from subsidence that would dewater or impair an intermittent or perennial stream to the extent that applicable Clean Water Act water quality standards are or would not be met or, if no designated use is assigned, the actual premining use would be precluded, or the Endangered Species Act violated. However, as discussed above, material damage to the hydrologic balance outside the permit area will not occur if the surface water or groundwater can be repaired so that it still attains applicable Clean Water Act water quality standards, or, if no designated use exists, its actual premining use. As discussed in more depth above, in Part IV.K., as long as these regulations are followed, subsidence damage from an underground mining operation that does not rise to the level of material damage to the hydrologic balance outside the permit area may be allowed.

Similarly, several commenters suggested a single exceedance of a water quality standard should not be considered material damage to the hydrologic balance outside the permit area as it may not impact the stream hydrology to the degree that the designated uses are impaired. We agree with this comment. Similar to what we said in our discussion of temporary impacts, under our definition, a simple exceedance of a water quality standard would not necessarily constitute material damage to the hydrologic balance outside the permit area. If stream metrics indicate the stream is maintaining its applicable Clean Water Act water quality standards after exceedance events, then material damage to the hydrologic balance outside the permit area has not occurred. However, there could be situations where the SMCRA regulatory authority determines a single exceedance does constitute material damage to the hydrologic balance outside the permit area: if the stream metrics indicate that the exceedance would violate applicable Clean Water Act water quality standards or one of the other criteria listed in paragraphs (2) through (3). As we explained above, the Start Printed Page 93112SMCRA regulatory authority should consult with the Clean Water Act authority to make this determination.

It is also possible to cause material damage to the hydrologic balance outside the permit area while satisfying all effluent limitations established in the NPDES permit. SMCRA permits require in-stream monitoring for parameters that are not limited or required to be monitored by the corresponding NPDES permits. Therefore, required monitoring under the SMCRA permit may indicate that a parameter that was not expected to have the potential to exceed a numeric or narrative water quality criteria in the receiving stream but does in fact exceed the established criteria. This situation could also occur if numerous individually compliant discharges cumulatively create a situation that violates a stream's applicable Clean Water Act water quality standards or would cause a violation of the Endangered Species Act.

One commenter asserted that the definition of material damage to the hydrologic balance outside the permit area should apply to all streams and stream segments, and that the assessment of material damage to the hydrologic balance outside the permit area must not be restricted to only those streams for which the U.S. Army Corps of Engineers, during the Clean Water Act section 404 process, makes jurisdictional determinations. We agree that material damage to the hydrologic balance outside the permit area is not restricted to only those streams for which there is a Clean Water Act jurisdictional determination issued by the U.S. Army Corps of Engineers.

In addition, final rule § 780.19(c)(6)(i)(C) simplifies the process of delineating stream transitions by requiring that the SMCRA regulatory authority default to any jurisdictional stream determinations made by the U.S. Army Corps of Engineers to delineate stream transitions. If the U.S. Army Corps of Engineers has not determined the location of a transition point, the regulatory authority must set one. There are a number of available resources that may be helpful including the state Clean Water Act authority. The regulatory authority is encouraged to coordinate with the U.S. Army Corps of Engineers and other partners in identification of stream transition points.

Several commenters suggested that linking the definition of material damage to the hydrologic balance outside the permit area with designated use could be problematic in situations where designated uses have not been identified or are not instructive, not accurate, and/or not attainable. The Clean Water Act provides a variety of policies to allow sufficient time to attain the designated uses, such as water quality standards variances, permit compliance schedules, or designated use changes. Several commenters noted that a use attainability analysis may be required to establish or change a designated use and that the use attainability analysis may be time-consuming and expensive. In such cases, the regional U.S. Environmental Protection Agency offices and relevant state Clean Water Act agencies can provide support and may suggest other approaches appropriate for the situation. As noted above, we are retaining the link to attainment of designated uses in the broader water quality standards approach; however, we are also making a clarifying change to address some of these concerns. As proposed, the definition accounts for situations where no designated use has been identified for a particular stream. In those situations, the proposed rule would have required that the “existing use” be maintained in a receiving stream. In the final rule, to prevent confusion with the Clean Water Act definition of existing uses and prevent abuses related to impaired streams, we have made revisions to further clarify this concept. Our intent is to maintain the actual use of surface water prior to the proposed mining operation. We are also concerned that the baseline standard for material damage to the hydrologic balance outside the permit area and/or stream restoration standards for an impaired stream, with or without a designated use, may be mistakenly considered as an existing, impaired condition rather than its actual or potential designated use. To remove any confusion and add clarity, we removed the phrase “existing use” from the definition and added “actual use” to signify uses that existed prior to submission of a coal mine permit application. Thus, paragraph (1) now specifically states that if no designated use has been established under the Clean Water Act, a mining operation cannot preclude attainment of any actual premining use of surface water outside the permit area.

One commenter suggested we only consider “existing uses” and that we define “existing uses” as any uses in existence as of August 3, 1977, which is the date SMCRA was enacted. We have not adopted this suggestion because we removed the phrase “existing uses” from the definition as it relates to surface waters and replaced it with “any premining use.” We did not replace it with “any actual use as of the enactment of SMCRA” because that change could raise potential conflicts with the Clean Water Act if the stream's designated uses have changed since the enactment of SMCRA.

Another commenter suggested we revise the regulation to provide a hierarchy of stream use categories that would provide consistency in determining material damage to the hydrologic balance outside the permit area (i.e., first designated uses, then existing uses, and finally reasonably foreseeable uses). We agree that the regulation needs to specify the priority of stream use categories and have made changes as a result. As discussed above, we added clarifying language to paragraph (1) that specifies that adverse impacts that violate applicable Clean Water Act water quality standards and, if no water quality standards have been established, then the adverse impacts may not preclude any actual premining use. The proposed rule would have also required operators to ensure that “reasonably foreseeable uses” of surface water were maintained. However, many commenters raised concerns about the difficulty in interpreting or assigning reasonably foreseeable use to streams. We agree and have removed the language concerning reasonably foreseeable uses. The final rule no longer includes the term “reasonably foreseeable uses” in contexts other than protection of reasonably foreseeable surface land uses from the adverse impacts of subsidence. As explained in other areas of the preamble, we removed the term from the definition of material damage to the hydrologic balance outside the permit area for two reasons. First, the term appears in SMCRA only in section 516(b)(1), which requires that operators of underground mines adopt subsidence control measures to, among other things, maintain the value and reasonably foreseeable use of surface lands. Sections 717(b) and 720(a)(2) of SMCRA separately protect certain water uses. Second, numerous commenters opposed inclusion of the term “reasonably foreseeable uses” on the basis that it is too subjective, difficult to determine, and open to widely varying interpretations, which could result in inconsistent application throughout the coalfields.

Proposed paragraph (a) defined material damage to the hydrologic balance outside the permit area as any adverse impact that would preclude any reasonably foreseeable use of surface water or groundwater outside the permit area. Several commenters objected to the use of the term “reasonably foreseeable uses”. Several commenters suggested using alternate terms such as Start Printed Page 93113“protected use,” “existing uses”, and “future probable use”. As explained above, we deleted references to “reasonably foreseeable uses” in paragraph (1) of the final definition and elsewhere in our rules. The term was confusing and could have led to possibly conflicting interpretations.

Another commenter suggested that linking material damage to the hydrologic balance outside the permit area with the concept of reasonably foreseeable uses will create conflicts between the Clean Water Act and SMCRA agencies about what is a foreseeable use. For the reasons explained above, we did not accept this comment.

A commenter expressed concern about how the Clean Water Act concept of anti-degradation would relate to variability in a stream designated use caused by SMCRA mining impacts. We clarified the definition by directly linking to the concept of Clean Water Act water quality standards, which includes provisions for impaired streams and antidegradation. To establish material damage in situations involving impaired streams, the SMCRA regulatory authority should consult with the Clean Water Act authority to ensure a thorough understanding of the water quality standards applicable to the stream and specific situation under review.

In the proposed rule, groundwater was included with paragraph (a). One commenter specifically suggested we define material damage to the hydrologic balance outside the permit area so that it applies to groundwater. Although groundwater was included in the proposed definition, we have decided to include paragraph (2) in the final rule to specifically state that operators must maintain premining uses associated with groundwater. This change clarifies that material damage to the hydrologic balance outside the permit area protects groundwater resources that may not have uses assigned to them. In particular, this paragraph states that “material damage to the hydrologic balance outside the permit area” would include those adverse impacts that preclude attainment of any premining use of groundwater outside the permit area. In addition, paragraphs (1) and (2) of the definition would preclude the discharge of contaminated groundwater into a receiving stream if that discharge caused the stream to not satisfy its applicable Clean Water Act water quality standards. Thus, groundwater protections are included in this final definition.

A commenter suggested we revise the definition to ensure it adequately protects listed species or designated critical habitats. The commenter further elaborated that the definition should not be linked to the Endangered Species Act's jeopardy analysis. We agree that the definition of material damage to the hydrologic balance outside the permit area should adequately protect listed species and designated critical habitat, whether aquatic or terrestrial. Paragraph (b) of the proposed rule was included to prevent impacts to threatened or endangered species or adverse effects on designated critical habitat outside the permit area in violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. As proposed, it did not specifically link this definition with a jeopardy analysis under the Endangered Species Act, and we are not doing so in the final rule. In the final rule, this paragraph has been redesignated as (3) and simplified to bring attention to the prohibitions found in the Endangered Species Act of 1973, which also includes the unauthorized “taking” of listed species (a criminal prohibition). This provision, in conjunction with the other provisions of this final rule related to fish and wildlife resources discussed in the preamble at §§ 780.16(b) and 783.20, should provide adequate protections for threatened and endangered species, aquatic and/or terrestrial, in accordance with the Endangered Species Act.

One commenter, citing section 702,[166] of SMCRA, requested that the definition of material damage to the hydrologic balance outside the permit area be expanded to encompass any violations of other applicable statutes or regulations in addition to those stated in the proposed rule text. The term “material damage to the hydrologic balance outside the permit area” is a term unique to SMCRA and there is no need to refer to other statutes or regulations within this definition. Section 702 of SMCRA [167] will continue to fully apply independent of this definition. We singled out the Endangered Species Act in paragraph (3) because the statutory language is unique in its prohibitions against jeopardizing the continued existence of species and adverse changes to their designated critical habitat (if in the context of Section 7 of the Endangered Species Act), and its prohibition against unauthorized “taking” of listed species generally. In summary, we agree that SMCRA operations cannot materially damage streams outside the permit area under any circumstance; other statutes notwithstanding.

Many commenters raised concerns with a statement in the preamble to the proposed rule that stated: A “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.” [168] For support, these commenters also cited section 702 of SMCRA [169] because, to their understanding of the regulation, the development of numeric standards to determine material damage to the hydrologic balance outside the permit area would create a conflict with the Clean Water Act. In response, we note that nothing in the definition requires the creation of numeric standards. In the proposed rule, the requirement for numeric standards was included in § 773.15(e)(3), which stated that a regulatory authority needed to include a permit condition specifying criteria for 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 discussed in the preamble to final § 773.15(e)(3), we are not adopting the proposed requirement for numeric criteria unless numeric water quality criteria exist.

One commenter also suggested that inclusion of the term biological condition and ecological function into this definition is a duplication of the Clean Water Act sections 401 and 404 processes. We disagree. First, the term “ecological function” is not found in the definition of material damage to the hydrologic balance outside the permit area nor is it a required element to be assessed when setting criteria to asses if material damage to the hydrologic balance outside the permit has occurred (section 780.21). Second, to the extent that any Clean Water Act section 401 or 404 processes also apply, the final rule allows any information obtained in these processes to be used to inform and support analyses conducted under SMCRA. It is vital to link water quality changes with aquatic impacts that may result from SMCRA sites in order to determine whether material damage to the hydrologic balance outside the permit area has been prevented. This linkage is necessary to evaluate the overall impact of the mining operation on the receiving stream and its aquatic community and to assess unacceptable changes in either designated use, actual, or premining use when a designated use Start Printed Page 93114is not assigned. For these reasons we are retaining the term biological condition within the definition of material damage to the hydrologic balance.

Many commenters speculated as to how coal mining impacts to receiving streams would be assessed in light of the proposed definition. Several commenters questioned the use of the phrase “adverse impacts” and were concerned that the phrase could be interpreted to mean any impact to a receiving stream. We disagree with this interpretation. The definition of “material damage to the hydrologic balance outside the permit area” needs to be read, understood, and applied in its entirety. As discussed above, an adverse impact does not necessarily constitute material damage to the hydrologic balance outside the permit area. The definition includes only those adverse impacts that, either individually or cumulatively, would preclude a receiving stream from attaining its applicable Clean Water Act water quality standards, or if no designated use exists, the premining use.

Several commenters proposed their own definitions of material damage to the hydrologic balance outside the permit area. Most of these suggested definitions tied material damage to the hydrologic balance outside the permit area to permanent impacts after mitigation attempts have failed. We decline to adopt the term “permanent” because impacts can materially damage the hydrologic balance outside the permit area yet not be considered permanent. There are many examples over the last 30 years of impacts that were not permanent but that clearly rose to the level of material damage to the hydrologic balance outside the permit area. Some examples include the Martin County, Kentucky slurry breach, impacts to Tug Fork River that killed all aquatic life in Coldwater Fork and Wolf Creeks, and a mine release of very high conductivity water released from the Blacksville No. 2 Mine into Dunkard Fork in Greene County, Pennsylvania that created a golden algae bloom that caused a massive fish kill in 40 miles of stream. These events have all been mitigated and would not be considered permanent even though they clearly constituted material damage to the hydrologic balance outside the permit area which should have been prevented. Thus, singular, nonpermanent events can rise to the magnitude of material damage to the hydrologic balance outside the permit area.

A commenter recommended that the rule specify that a SMCRA regulatory authority should not consider noncompliant discharges other than those that rise to the level of precluding designated or existing uses because those noncompliant discharges, according to the commenter, remain solely within the purview of the Clean Water Act authority. We disagree. SMCRA gives jurisdictional authority to its regulatory authorities over aspects of water quality resulting from coal mining [170] and requires the evaluation of water quality from SMCRA sites and modification of the SMCRA permit any time a SMCRA site is causing, or leading to, material damage to the hydrologic balance outside the permit area.

Several commenters expressed concern that extraneous, non-mining related impacts, including natural conditions, would be included in assessment of material damage to the hydrologic balance outside the permit area and urged us to limit the scope of assessment to only those impacts directly attributable to the surface coal mining and reclamation operation. We agree with the commenters that many surface coal mining and reclamation operations are located in areas with multiple land uses and that water quality can be impacted from these other non-coal mining sources and natural conditions. The regulations require permit applicants to acquire water samples to help assess the baseline water quality in all streams overlying and adjacent to the proposed operation and for groundwater. Impacts to the water from other existing upstream land uses, including non-coal mining sources, will be reflected in the baseline data. The baseline data will form the basis of the cumulative hydrologic impact assessment developed by the regulatory authority. That assessment evaluates the capacity of the receiving stream to assimilate the expected water quality emanating from the proposed mining operation, and from all other mining-related activities, known and anticipated, within an area known as the cumulative impact area. The cumulative hydrologic impact assessment, therefore, provides the regulatory authority with sufficient information to assess whether the proposed mining operation, in combination with other existing and reasonably anticipated mining activities, will materially damage the hydrologic balance outside the permit area. For example, if a stream's assimilative capacity for a certain parameter is already consumed by other activities or if the proposed operation would exacerbate natural conditions to the point where the stream might fail to attain its applicable Clean Water Act water quality standards, the regulatory authority would either need to modify the permit so that material damage to the hydrologic balance outside the permit area does not occur or disapprove the permit.

Several commenters suggested mining operations should not be required to improve a stream's biological condition beyond the premining condition. We do not agree with this assertion for previously impaired streams. We agree that if a stream is attaining its applicable Clean Water Act water quality standards, there is no requirement under SMCRA for the operation to implement measures, for example, to attain higher designated use categories. That is not the case for mining operations affecting previously degraded streams. Section 515(b)(24) of SMCRA specifically requires the enhancement of fish, wildlife, and related environmental values where practicable and section 508(a)(9) of SMCRA [171] requires steps be taken to comply with all air and water quality laws. Returning a degraded stream to a degraded state neither enhances fish, wildlife, and related environmental values nor takes steps to comply with the Clean Water Act's goal of maintaining a stream's designated use or instituting measures to help it attain its water quality standards.[172] Thus, the Clean Water Act regulatory authorities must develop water quality standards that help streams achieve their designated uses. Allowing a mining operation to return a stream to a degraded state without some form of enhancement would, thus, conflict with the Clean Water Act section 303(d). As a result, in instances where a stream is not meeting its designated use, it is vital that the regulatory authority work closely with the Clean Water Act authority to determine the level of impairment, evaluate the potential impacts from the proposed operation, and thoroughly assess the anticipated effects of the proposed operation over the anticipated life-of-the-mine. This coordination is critical because the state Clean Water Act authorities must implement measures to ensure that all streams achieve their assigned designated use(s) in conformity with section 303(d) of the Clean Water Act.[173]

One commenter also suggested the rule should grant discretion to the regulatory authority when applying bioassessment standards for material damage to the hydrologic balance Start Printed Page 93115evaluation. We agree, and as discussed in more detail in the preamble discussion of material damage to the hydrologic balance outside the permit area in the proposed rule, we stated that the regulatory authorities would have discretion to set criteria, including bioassessment criteria, to determine, on a case-by-case basis, whether there has been material damage to the hydrologic balance outside the permit area.[174] We are adopting that approach today. Thus, the definition contained in this section provides regulatory authorities with the framework to set their own criteria. This framework consists of factors that the regulatory authority must consider in developing and applying their unique bioassessment criteria for material damage to the hydrologic balance outside the permit area.

One commenter indicated that the definition of material damage to the hydrologic balance outside the permit area has been expanded to include quality and quantity impacts to surface water and ground water but also includes adverse impacts to the biological condition of a stream. They further stated that the definition expanded the hydrologic impact review to the adjacent area and/or shadow area of underground mines. In addition, the commenter suggested that inclusion of subsidence damage within the definition of material damage to the hydrologic balance outside the permit area contradicted the Energy Policy Act.[175] We disagree with the commenter's classification of an expanded area of review. In accordance with sections 508(a)(13)(A) and (C) and 515(b)(10) of SMCRA, we have always considered adjacent areas and shadow areas to be part of the evaluation of material damage to the hydrologic balance outside the permit area. Specifically, these areas are clearly contemplated by section 508(a)(13)(A) and (C) of SMCRA, which requires measures to be taken to ensure protection of quality and quantity of surface and ground waters both on- and off-site from adverse effects of mining and reclamation.[176] Similarly, section 515(b)(10) requires the operation 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 . . . .” [177] These statutory provisions that specifically concern impacts to waters outside of the permitted area are applicable to both surface and underground mining operations. Although this has been our longstanding position and is clearly mandated by SMCRA, the definition of material damage to the hydrologic balance outside the permit area that we are finalizing today removes any of the ambiguity that may have resulted in this comment.

Moreover, our definition does not conflict with the Energy Policy Act. Section 2504 of Energy Policy Act requires operators to repair or compensate for subsidence impacts they cause to surface structures and requires replacement of water supplies adversely impacted by coal mine subsidence. The water replacement provisions of the Energy Policy Act are incorporated into our regulations at section 817.40 and are still in effect. These regulations provide additional protections for individual well owners. A change to an individual well that would trigger the replacement provision of section 817.40 would not necessarily constitute material damage to the hydrologic balance outside the permit area unless that damage was the result of wholesale adverse changes to an aquifer that the regulatory authority determines rose to the level of material damage to the hydrologic balance outside the permit area.

The commenter further suggested that inclusion of the term biological condition in the introductory text of the definition would result in a “massive” amount of new information for the regulatory agency to review. We agree that new information will be received on biological condition, but this information is not anticipated to be “massive” or otherwise overburden the regulatory authority. Experience in the Tennessee federal program indicates collection and submission of permit specific biological condition information does not substantially increase the volume of information submitted for a coal mine permit application. Biological condition is a critical component of determining the impact from the mining operation not only on water quality and quantity of the receiving stream but on impact to the aquatic environment. This information needs to be evaluated to ensure mining and reclamation operations do not cause material damage to the hydrologic balance outside the permit area.

Mountaintop Removal Mining

Some commenters expressed concern that the proposed definition of “mountaintop removal mining” conflicts with section 515(c)(2) of SMCRA [178] and is a significant change from the existing regulations that could cause confusion for regulatory authorities and the regulated community. Specifically, one commenter alleged that the change from “removing substantially all overburden off the bench” to “removing substantially all overburden above the coal seam” and the clarification that the overburden be used to create the postmining contours would be a source of misunderstanding. For the reasons discussed below, we disagree and are adopting the definition as proposed.

As we explained in the preamble to the proposed rule, we added a definition of “mountaintop removal mining” to § 701.5 by consolidating the descriptions of mountaintop removal mining operations in previous §§ 785.14(b) and 824.11(a)(2) and (3).[179] Previous § 824.11(a)(2) is nearly identical to section 515(c)(2) [180] of SMCRA, which explains that approximate original contour does not need to be achieved where an operation will mine “an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill (except as provided in subsection (c)(4)(A) hereof) by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining.” Id. Previous § 785.14(b) uses the same language except that it qualifies the amount of overburden with the word “substantially” and clarifies that the overburden is removed “off the bench.” In our definition of “mountaintop removal mining,” we have retained the word “substantially” and clarified that “substantially all of the overburden above the coal seam” must be removed and used to create approved postmining contours. Overburden is commonly understood to be the strata overlying the coal seam. If one “removes all of the overburden” then they are removing the material “above the coal seam” to uncover and then extract the entire coal seam. Therefore, we view this change as merely a clarification. Furthermore, the addition of the phrase “and using that overburden” actually makes the definition more consistent with SMCRA as it fully implements section 515(c)(4)(E),[181] which requires that “spoil [] be placed on the mountaintop bench as is necessary to achieve the planned postmining land use.” Therefore, contrary to the assertions of Start Printed Page 93116the commenters, adding “above the coal seam” and “using that material to create” to the definition of mountaintop removal mining does not create a conflict with the language of SMCRA and does not create confusion. No change has been made to the proposed definition in our final rule.

Native Species

As discussed within the explanation of the definition of “invasive species”, some commenters requested that the final rule include definitions of “invasive species,” “non-invasive species,” and “native species.” Other commenters requested that we allow the regulatory authority to have latitude to define these terms. In response, we are adding two definitions to the final rule. We are defining “invasive species” and “native species” in the final rule. In the preamble to the proposed rule at section 780.12(g) [182] we referenced Executive Order 13112[183] that focused on “invasive species.” As discussed above with respect to “invasive species,” the 1999 Executive Order includes definitions of both “invasive species” and “native species.” We are incorporating a definition of “native species” into the final rule that does not conflict with either the 1999 or 2016 Executive Orders.

In response to the commenters that suggested that we allow the regulatory authority latitude to define the terms “invasive species” and “native species”, we do not agree because it is important to have uniform definitions of these terms and the definitions, adapted from the 1999 and 2016 Executive Orders in a manner that focuses on the specific goals of SMCRA, are appropriate.

Occupied Residential Dwelling and Structures Related Thereto

We received no comments on our proposed revisions to this definition, which we are adopting as proposed.

Ordinary High Water Mark

One commenter stated that we should use the ordinary high water mark (OHWM) instead of the bankfull elevation when measuring distances from streambanks because the OHWM is both more common for that purpose and more easily determined. We adopted the commenter's suggestion, which meant that we needed a definition of OHWM. To promote consistency between SMCRA and the Clean Water Act, we settled on the definition in regulation 33 CFR 328.3(e).

We made only one change—replacing “shore” with “bank” in our definition because “bank” is more commonly understood and used in the context of the streams affected by coal mining.

Measuring from the OHWM as opposed to the bankfull elevation, which is the point at which the streambanks can hold no more water before spilling flow onto the floodplain, could result in a slightly narrower buffer zone or streamside vegetated corridor, but, in most cases, the difference would be minimal.

Parameters of Concern

We proposed to add the definition of “parameters of concern” because we used the term extensively in the proposed rule. Under the proposed definition, “parameters of concern” consists 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. We continue to use the definition of “parameters of concern” within the final rule and adopt it as proposed, with one exception. Within the definition, we have replaced “biological condition of a stream” with “including adverse impacts on aquatic life.”

One commenter expressed concern that the definition of “biological condition” coupled with the definition of “parameters of concern” would impose new and burdensome requirements. The definition of “parameters of concern” was used to clarify that these parameters may be of concern because of potential impacts on aquatic life. Including “biological condition” in the context of this definition does not, in and of itself, require additional biological data beyond the requirements expressly defined elsewhere in the regulation; however, we agree that the use of term did not provide sufficient clarity and have replaced “biological condition of a stream” with “including adverse impacts on aquatic life”.

We also received a variety of comments on the definition of “parameters of concern.” A few commenters asked us to delete this proposed definition altogether. These commenters alleged that the definition conflicts with the Clean Water Act and exceeds our authority. We disagree. The Clean Water Act established a national goal to restore or maintain the chemical, physical, and biological integrity of the Nation's water.[184] The final rule definition, like the proposed rule definition, complements these Clean Water Act requirements. None of the elements of this final rule affect a mine operator's responsibility to comply with effluent limitations or other requirements of the Clean Water Act. The requirements of the Clean Water Act have independent force and effect regardless of the terms of the SMCRA permit. The independent effect of the Clean Water Act is recognized in section 702(a) of SMCRA, which provides that—

Nothing in this Act shall be construed as superseding, amending, modifying, or repealing the * * * [t]he Federal Water Pollution Control Act [Clean Water Act] [citations omitted], the State laws enacted pursuant thereto, or other Federal laws relating to the preservation of water quality.[185]

Another commenter requested the definition be revised to state that the “parameters of concern” will be determined by the approved regulatory authority. While we agree that the regulatory authority should identify local “parameters of concern,” if applicable, and include them in the required baseline monitoring data, we are not modifying the definition. Instead, we have clarified §§ 780.19, 784.19, and 780.23 of the rule to state that groundwater and surface water quality descriptions include all “parameters of concern” as identified by the regulatory authority. With these clarifications, any “parameters of concern” identified by the regulatory authority will more accurately reflect those constituents that could potentially impact water resources during coal mining and reclamation activities in their specific region of the country.

One commenter requested we adopt the term “pollutants” instead of “parameters of concern.” We disagree because the term “pollutant” is narrower than “parameters of concern.” We intend the term “parameters of concern” to cover all of the chemical or physical characteristics that are currently present in surface water or groundwater, or that could be released as a result of coal mining and reclamation activities or from the natural environment during such activities, and that could be present in sufficient concentrations to result in material damage to the hydrologic balance outside the permit area. In addition, using “parameters of concern” instead of “pollutant” in our regulations avoids confusion with the term “pollutant” as defined in section 502(6) of the Clean Water Act.

In consideration of these comments, we are not making any additional modifications to the final rule. As Start Printed Page 93117discussed above, the final rule will be adopted as proposed with the exception of the removal of the reference to “biological condition of a stream.”

Perennial Stream

As discussed in the preamble to the proposed rule,[186] we proposed 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 nationwide permits [187] under section 404 of the Clean Water Act.[188] We are adopting the proposed definition with a few changes. First, in response to commenters requesting that we include runoff from snowmelt to our definition, “runoff from rainfall events and snowmelt” is now included within the definition of “perennial stream.” This is consistent with the ephemeral and intermittent stream definitions and discussed in more detail within those sections of this preamble. Second, we are adding the statement that “perennial streams include only those conveyances with channels that display both a bed-and-bank configuration and an ordinary high water mark.” This addition is also consistent with the ephemeral and intermittent stream definitions discussed herein.

In our revised definition, “perennial stream” means a stream or part of a stream that has flowing water year-round during a typical year. One commenter stated that the term “typical year” is too vague. Another commenter requested clarification on the length of time meant by “most of the year.” Our final definition of “perennial stream” is substantively identical to the corresponding U.S. Army Corps of Engineers' definition. Both definitions recognize that perennial streams or segments of those streams may cease flowing during periods of sustained, below-normal precipitation. Thus, a cessation in flow during those periods would not result in the reclassification of the stream as intermittent. To the extent a SMCRA regulatory authority needs additional clarification of the terms “typical year” and “most of the year,” we recommend that they coordinate with the Clean Water Act authority.

One commenter asserted that the regulations pertaining to a “perennial stream” should allow regulatory authorities to adopt and apply regulations that could better protect perennial streams. Similarly, another commenter requested the addition of language recognizing that state protections for all stream types may exceed the U.S. Army Corps of Engineers' requirements and compel regulatory authorities to adopt more stringent protections within the permit conditions. States have the ability to adopt more stringent rules when they are revising their regulations governing surface coal mines and underground mines to satisfy the requirements set forth in the final rule. States can adopt more stringent rules that afford greater protections to ephemeral, intermittent, and perennial streams. Because states already have the authority under section 505(b) of SMCRA [189] to provide for more stringent land use and environmental controls and regulations of surface coal mining and reclamation operations than the provisions of SMCRA, it is not necessary to add additional language to the final rule.

Premining

In response to requests from several commenters, we are adding a definition of “premining” to § 701.5 of the final rule. The definition provides that “premining” refers to the conditions and features that exist on a site at the time of application for a permit to conduct surface coal mining operations. Some of our regulations refer to conditions or features in existence before any mining occurred on the site, not the conditions or features in existence at the time of preparation of the permit application. In those instances, we typically use the terms “prior to any mining” or “before any mining” instead of “premining.”

Reclamation

As we explained in the preamble, we proposed to revise the definition of “reclamation” to fully implement SMCRA by expanding the definition to include the entire disturbed area, to encompass all actions taken to restore land and water to the conditions required by SMCRA, and to clarify that the reclaimed land must be capable of supporting the uses it was capable of supporting prior to any mining or, subject to certain restrictions, higher or better uses.[190]

Several commenters requested explanation of the terms “capable of” and “higher or better” as referenced in the proposed definition. We did not propose to revise the definition of “higher or better uses” in this rulemaking. Section 701.5 defines this term as meaning the “postmining land uses that have a higher economic value or nonmonetary benefit to the landowner to the community than the premining land uses.” The phrase “capable of” was added to the definition of “reclamation” because the previous definition could have been misconstrued to require the implementation of the postmining land use, exceeding section 515(b)(2)'s requirement that the disturbed land be restored “to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses. . . .” [191] Requiring reclamation of disturbed areas to a condition in which the site is “capable of” supporting the uses it was “capable of” supporting before any mining is the functional equivalent of requiring that disturbed areas be “able to” support the same land uses the land was “able to” support prior to mining. This is consistent with the common meaning of the word and nothing in SMCRA indicates that “capable of” should be given anything other than the ordinary meaning of the word. For example, the Merriam-Webster Dictionary defines “capable” as meaning “able to achieve efficiently whatever one has to do; competent” and “having the ability, fitness, or quality necessary to do or achieve a specified thing.” [192] Although previous §  816.133 may have been misconstrued to only require that a site be reclaimed for one postmining land use, the revised definition of “reclamation” clarifies that the land itself must be reclaimed to support the same variety of land uses it was able to support prior to any mining. Where the land was capable of supporting a wide variety of uses, the reclaimed land must also be able to support those land uses. For example, even if the proposed postmining land use for a formerly forested area is grassland, and grassland is established after mining, the soil must be restored to a condition that could also support forests. In this regard, the ability to successfully support a type of vegetation indicative of a single land use may not alone prove the land's capability has been restored to the requirements of section 515(b)(2) of SMCRA.[193] Finally, previous §  780.23(a)(2)(i), which we adopted in the final rule as § 779.22(b)(1), specifies that capability must be determined on the basis of soil and foundation characteristics, Start Printed Page 93118topography, vegetative cover, and the hydrology of the proposed permit area.

One commenter urged us to include within the definition of “reclamation” a reference to the restoration of streams damaged by subsidence. We are not incorporating this recommendation into the final rule because we have specifically addressed this issue within § 784.30, relating to preparation of a “subsidence control plan and what information must that plan include” and § 817.121, relating to what measures must be taken to “prevent, control, or correct damage resulting from subsidence” within the final rule and discussed more thoroughly within those sections.

Reclamation Plan

Several commenters combined their comments on this definition within their discussion of the definition of “reclamation.” Therefore, we addressed the comments regarding “reclamation plan” in the same manner as explained in the definition of “reclamation.” We received no additional comments on our proposed revisions to this definition; therefore, we are adopting the definition as proposed.

Renewable Resource Lands

We proposed to define “renewable resource lands” as “aquifers, aquifer recharge areas, recharge areas for other subsurface and surface water, areas of agricultural or silvicultural production of food and fiber, and grazing lands.” The only substantive difference from the previous definition, which we adopted on March 13, 1979, was the addition of recharge areas for surface water.

One commenter expressed concern that the inclusion of recharge areas for surface water could have the effect of classifying all lands within watersheds that drain to a stream or reservoir used for a public drinking water supply as renewable resource lands and thus open the door to challenges seeking to ban all coal mining in those watersheds. According to the commenter, this outcome would be inconsistent with the statement in the DRIA that the proposed rule would not strand or sterilize any reserves; i.e., that the proposed rule would not make any coal reserves that are technically and economically feasible to mine under baseline conditions unavailable for extraction. The commenter further opined that, if we decide to proceed with adoption of the revised definition, we should conduct a detailed socioeconomic impact analysis to fully assess the repercussions of expanding the scope of the definition.

We do not agree with the commenter that the outcome described above represents a change from the status quo. The outcome described by the commenter is consistent with the baseline conditions upon which the DRIA was based. Section 522(a)(3)(C) of SMCRA [194] provides that a regulatory authority may, pursuant to a petition, designate a surface area as unsuitable for certain types of surface coal mining operations if those operations will “affect renewable resource lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products, and such lands to include aquifers and aquifer recharge areas.” This language clearly includes watersheds of reservoirs and natural water bodies that function as water supplies. We have always interpreted the definition of “renewable resource lands” as including those watersheds.[195] Therefore, there is no need for a socioeconomic analysis of the proposed definition because the revisions are intended to reconcile the definition to both the underlying statutory provision and historical practice.

However, we agree that the scope of the proposed definition is too broad in that it would include the watersheds of all surface waters, not just surface water bodies that serve as water supplies. Therefore, we decided not to adopt the proposed revision to the definition to the extent that it would include “recharge areas for other subsurface and surface water.” Instead, we revised the definition to include “recharge areas for other subsurface water,” which is consistent with the previous definition's inclusion of areas for the recharge of other underground waters. We also revised the definition to include “surface water bodies that function as a water supply.” The latter revision more closely tracks the language of section 522(a)(3)(C) of SMCRA.

One commenter supported the proposed modification of the definition to include recharge areas for surface waters. The commenter recommended that we revise the proposed definition to explicitly identify examples of surface waters by adding “(such as lakes, ponds, and wetlands)” after “surface water.” We decline to adopt this recommendation because our revision of the definition to include “watersheds for surface water bodies that function as a water supply” provides sufficient specificity without being under inclusive or over inclusive.

A commenter noted that the preamble to the proposed definition stated that the definition would include recharge areas for wetlands. See 80 FR 44436, 44588 (Jul. 27, 2015). The commenter further noted that the definition itself does not mention wetlands, which means that, in practice, recharge areas for wetlands are unlikely to be protected as renewable resource lands. The commenter recommended that we revise the definition to explicitly include recharge areas for wetlands. We acknowledge the inconsistency cited by the commenter. However, nothing in section 522(a)(3)(C) of SMCRA mentions wetlands as being renewable resource lands. Therefore, we decline to revise the definition as recommended. Wetlands will be considered renewable resource lands only to the extent they are integral features of watersheds of surface water bodies that function as water supplies.

Replacement of Water Supply

We received no comments on our proposed revisions to this definition, which we are adopting as proposed.

Temporary Diversion

One commenter expressed concern that the proposed definition of “temporary diversion” includes no specific time for “temporary.” The commenter noted that, under the proposed definition, a temporary diversion could remain in place until the end of mining and reclamation activities, which may be measured in decades, and therefore is not consistent with the common usage of the word “temporary.” The commenter recommended that, with respect to stream diversions, the word “temporary” be subdivided into a “short-term temporary” period no more than two years in duration and a “long-term temporary” period two years or longer in duration that can extend until the end of mining and reclamation activities.

The commenter correctly points out that proposed §§ 780.28 and 784.28 would establish different standards for a temporary stream channel diversion in place for more than two years as compared to one in place for less than two years. However, we do not agree that the revision suggested by the commenter is necessary or would improve clarity. We define a “temporary diversion” as a “channel constructed to convey streamflow or overland flow” and specify that the term “includes only those channels not approved by the Start Printed Page 93119regulatory authority to remain after reclamation as part of the approved postmining land use.” Thus, a temporary diversion is in place only until its intended purpose has been fulfilled, after which time it is removed. A temporary diversion may be in place through the reclamation phase and bond release, which, as the commenter notes, could be decades. While the term “permanent diversion” is not specifically defined, it includes anything that is not a “temporary diversion.” We do not define the term “temporary” relative to the time a diversion is in place, but rather according to whether it will be removed at some point in the reclamation process.

Relative to the commenter's assertion that the definition should be clarified, we did make changes to § 816.43 in the final rule to establish three categories of diversions (diversion ditches, stream diversions, and conveyances or channels within the disturbed area) and we specify the requirements that apply to each category.

Another commenter stated that the word “conveyance” in the definition of a temporary diversion should be removed or, at a minimum, modified so that if the conveyances fail, they will be limited to discharges “out of the pit.” The commenter further asserted that “in pit” conveyance structures that fail do not pose a risk to the public or the environment. Therefore, according to the commenter, they should not be regulated under SMCRA or the Clean Water Act. We did not alter the final rule in response to this comment because many of these conveyances may be quite lengthy, often thousands of feet in length, and a failure along such a conveyance may result in water flowing away for the pit, not always into the pit as suggested by the commenter, which may potentially result in discharges off site. We did however add language to the final definition to include channels that convey flows to a siltation structure or other treatment facility. Thus, diversions can be constructed within the permit area to convey water to a siltation structure or, as the commenter suggested, to the mine pit.

Waters of the United States

We proposed to define the term “waters of the United States” in the same manner it is defined within 40 CFR 230.3(s), which is part of the section 404(b)(1) guidelines under the Clean Water Act.[196] We received comments both supporting and opposing our proposed addition of a definition of this term. After evaluating the comments, we agree that adoption of the definition is unnecessary for implementation of the final rule. In response to comments, we have revised the final rule by replacing the term “waters of the United States” with “waters subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 1251 et seq.”

Wetlands

We did not propose to add a definition of “wetlands.” However, a few commenters requested that we define “wetlands” or, preferably, clarify that the term “wetlands” as used in our final rule corresponds to the existing definition within the regulations promulgated pursuant to the Clean Water Act. We find that a unique definition in the final rule is unnecessary. Instead, we will defer to the definition of “wetlands” as promulgated by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency. Additionally, these commenters stated that we should specify in the final rule that wetlands must be delineated using field techniques according to the most recent requirements from the Clean Water Act regulatory authority. One commenter suggested that the U.S. Army Corps of Engineers should delineate, document, map, and field confirm wetlands. This commenter also suggested that we adopt a definition of “wetlands” that includes an explanation that “wetlands are one subset of the Waters of the United States and are subject to the requirements of the Clean Water Act, just as are streams and other regulated bodies.”

We decline to adopt the commenters' recommendations. We are not aware of any instances in which the lack of a definition of “wetlands” under SMCRA has created a problem. For regulatory purposes, the term “wetlands” is commonly understood to mean wetlands as determined using the diagnostic techniques in the U.S. Army Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1, as published in January 1987 and subsequently modified. Paragraph 26 in Part II of that manual summarizes the fundamental characteristics of wetlands. 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 or “any rule or regulation promulgated thereunder.” Therefore, SMCRA regulatory authorities must define and identify wetlands in a manner that is no less inclusive than any definition used under the Clean Water Act. However, section 505(b) of SMCRA [198] specifies that any state law or regulation that provides for “more stringent land use and environmental controls of surface coal mining and reclamation operations than do the provisions of this Act or any regulation issued pursuant thereto shall not be construed to be inconsistent with this Act.” Therefore, SMCRA regulatory authorities may use wetlands definitions and delineation techniques that differ from those in the U.S. Army Corps of Engineers' Manual so long as those definitions and techniques do not exclude any areas that qualify as wetlands under the Wetlands Delineation Manual. With respect to the comment that the rule should require that the U.S. Army Corps of Engineers delineate, document, map, and field confirm wetlands, we do not have the authority under SMCRA to impose obligations on the U.S. Army Corps of Engineers. We encourage the SMCRA regulatory authority to coordinate review of permit applications with the U.S. Army Corps of Engineers, but we find no reason to expressly restrict wetland delineation to the U.S. Army Corps of Engineers as part of this final rule.

Section 701.16: How will the stream protection rule apply to existing and future permits and permit applications?

Our proposed rule did not include regulatory text clarifying how the rule would affect existing permits and permit applications. A number of commenters emphasized that the final rule needed to include such a provision, both for clarity and to ensure preservation of the rights of existing permit holders. Some commenters noted that many of the requirements of the stream protection rule, such as expanded baseline data collection and permit application requirements and related performance standards and bond release requirements, would be impossible for existing operations to meet because the site has already been disturbed. According to the commenters, the final rule should apply only to new operations or to additions to existing operations, not to existing permitted lands and reclaimed areas. Others emphasized the general legal principle that regulations should be prospective in nature, not retroactive.

One commenter observed that it is not clear which parts of the proposed rule would apply to existing permits. The commenter noted that the DRIA stated that, for purposes of that analysis, §§ 774.15, 800.18, 800.40, 816.35, Start Printed Page 93120816.36, 816.41, 817.35, 817.36, and 817.41 would be considered as applying to existing permits. The commenter further stated that the final rule should include interim requirements or a schedule for existing permits and permit applications under review to comply with the final rule.

We agree that, in general, the final rule that we are publishing today should be prospective, not retroactive. Therefore, we have added § 701.16 to clarify the applicability of the rule. Section 701.16 applies only to the revisions to Parts 701 through 827, which paragraph (a) characterizes as the “stream protection rule.” Section 701.16 does not affect the revisions to our termination of jurisdiction rules in § 700.11(d) because those revisions merely codify longstanding court decisions and legal representations concerning the applicability of the rules governing the termination and reassertion of jurisdiction. Paragraphs (a)(1) through (5) of § 701.16 establish minimum applicability standards for those stream protection rule provisions that do not contain their own specific applicability provisions.

Section 701.16 supersedes the statement in the DRIA that identifies §§ 774.15, 800.18, 800.40, 816.35, 816.36, 816.41, 817.35, 817.36, and 817.41 as applying to existing permits. Under § 701.16, the stream protection rule would not apply to existing permits unless the permittee applies for certain types of permit revisions. Therefore, there is no need for this rule to establish interim requirements or a compliance schedule for existing permits. Of course, it would not be inconsistent with SMCRA for a regulatory authority to, in its discretion, apply some or all provisions of the stream protection rule to part or all of a permit or application not listed in paragraph (a) of this section.

Paragraph (a)(1) of § 701.16 provides that the stream protection rule applies to any application for a new permit submitted to the regulatory authority after the effective date of the stream protection rule under the applicable regulatory program. One commenter argued that the final rule should apply only to new leases or lands acquired after the effective date of the rule because adoption of the proposed rule would significantly increase the cost of mining large tracts of lands and coal reserves in which companies have already made significant investments. We do not agree. Persons who acquire leases, lands, or interests in land do so subject to future regulatory restrictions on use of those leases, lands, or interests in land. To the extent a property right exists to mine coal in a particular location using a particular method that right does not vest until issuance of a SMCRA permit. Even then, the regulatory authority has the right to require reasonable revision of the permit to ensure compliance with the Act and applicable regulatory program. See section 511(c) of SMCRA [199] and the implementing regulations at 30 CFR 774.10(b).

Paragraph (a)(2) of § 701.16 provides that the stream protection rule applies to any application for a new permit pending a decision by the regulatory authority as of the effective date of the stream protection rule under the applicable regulatory program, unless the regulatory authority has determined the application to be administratively complete under § 777.15 or its state program counterpart before the effective date of the stream protection rule under the applicable regulatory program. Exempting administratively complete applications would protect permit applicants who invested time and money in developing a good-faith application under the existing rules.

Paragraph (a)(3) of § 701.16 provides that the stream protection rule applies to any application for the addition of acreage to an existing permit submitted to the regulatory authority after the effective date of the stream protection rule under the applicable regulatory program, with the exception of applications for incidental boundary revisions that do not propose to add acreage for coal removal. Under section 511(a)(3) of SMCRA [200] and 30 CFR 774.13(d), any extensions to the area covered by a permit, except incidental boundary revisions, must be made by application for a new permit. However, some state regulatory programs authorize addition of acreage to an existing permit via the permit revision process, provided that the revision meets the application information requirements for a new permit and the regulatory authority processes the application like an application for a new permit. Paragraph (a)(3) would apply to these situations. We added the provision excluding incidental boundary revisions that add acreage for coal removal as a safeguard against abuse of the exception for incidental boundary revisions.

Paragraph (a)(4) of § 701.16 provides that the stream protection rule applies to any application for the addition of acreage to an existing permit pending a decision by the regulatory authority as of the effective date of the stream protection rule under the applicable regulatory program, with two exceptions. First, the stream protection rule would not apply to applications for incidental boundary revisions that do not propose to add acreage for coal removal. Second, the stream protection rule would not apply to applications that the regulatory authority has determined to be administratively complete before the effective date of the stream protection rule under the applicable regulatory program. The rationale for this paragraph is consistent with the rationale contained in paragraphs (a)(2) and (3).

Paragraph (a)(5) of section 701.16 provides that the stream protection rule applies to any application for a permit revision submitted on or after the effective date of the stream protection rule under the applicable regulatory program, or pending a decision by the regulatory authority as of that date, that proposes a new excess spoil fill, coal mine waste refuse pile, or coal mine waste slurry impoundment or that proposes to move or expand the location of an approved excess spoil fill or coal mine waste facility. Many of the studies cited in Part II of the preamble mention that excess spoil fills are especially detrimental to streams, both because they often cover stream segments and because of the adverse impacts of drainage from and through the fill on aquatic life in streams downstream of the fill. Coal mine waste refuse piles and slurry impoundments have similar characteristics in that they sometimes cover stream segments and because drainage from and through the refuse pile or slurry impoundment could adversely impact aquatic life in receiving streams.

Paragraph (a)(5) protects the rights and investment of existing permittees and persons with administratively complete applications, while limiting that protection to the locations and dimensions approved in the permit or contained in an administratively complete permit revision. Allowing a permittee to revise the permit to add new excess spoil fills or coal mine waste facilities, or to alter the location or size of those fills or coal mine waste facilities, without complying with the provisions of this final rule would be inconsistent with the principal purpose of the stream protection rule; i.e., preventing the loss or degradation of streams.Start Printed Page 93121

C. Part 773—Requirements for Permits and Permit Processing

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

We are finalizing § 773.5 as proposed. We received no comments on this section.

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

We are finalizing § 773.7 as proposed. We received no comments on this section.

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

We are adopting § 773.15 as proposed with the exception of paragraphs (e), (j), and (n). One commenter urged us to revise paragraph (e)(2) to provide that a regulatory authority may not approve a permit application unless it determines that the proposed operation is not predicted to cause subsidence that would result in the dewatering of any perennial or intermittent stream. Proposed paragraph (e)(2), like section 510(b)(3) of SMCRA,[201] provides that the regulatory authority may not approve a permit application unless 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. Therefore, we decline to make the change that the commenter recommends. Instead, the definition of “material damage to the hydrologic balance outside the permit area” in § 701.5 of the final rule will govern when dewatering of a perennial or intermittent stream will constitute material damage to the hydrologic balance outside the permit area and thus prevent approval of the permit application.

Proposed paragraph (e)(3) would have required that the regulatory authority include in the permit site-specific criteria for material damage to the hydrologic balance outside the permit area. Proposed paragraph (e)(3) would have required that the criteria be expressed in numerical terms for each parameter of concern. Several commenters opposed this proposed provision, alleging that requiring the regulatory authority to set numerical criteria would supersede the Clean Water Act, which would violate section 702 of SMCRA.[202] Some commenters also cited In re Surface Mining Regulation Litigation, 627 F.2d 1346 (D.C. Cir. 1980) as support for their assertions. As discussed further in Part IV.I. of this preamble, neither the proposed rule nor this final rule exceed our authority but instead fills a regulatory gap. This final rule better accomplishes statutory directives in SMCRA, including those that require the prevention of material damage to the hydrologic balance outside the permit area and those that require a minimization of disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas. See, e.g., 30 U.S.C. 1260(b)(3), 1260(b)(10). However, we did not adopt proposed paragraph (e)(3) as part of the final rule because we determined that we did not need this paragraph to in order to implement the statutory directives. Furthermore, we modified proposed §§ 780.21(b) and 784.21(b) to allow regulatory authorities to select narrative as well as numeric thresholds for material damage to the hydrologic balance outside the permit area for the reasons discussed in the preamble to those sections. In determining the appropriate numeric or narrative thresholds, the regulatory authority will consult with the Clean Water Act authority, as appropriate, and undertake a comprehensive evaluation of the factors set forth in § 780.21(b)(6).

Proposed § 773.15(j) would have required that the regulatory authority find that the operation is not likely to jeopardize the continued existence of species listed or proposed for listing as threatened or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., or result in destruction or adverse modification of designated critical habitat under that law. We revised proposed § 773.15(j) in response to comments from the public and other federal agencies and as a result of our consultation with the U.S. Fish and Wildlife Service under sections 7(a)(1) and (a)(2) of the Endangered Species Act of 1973.[203] Referring to species listed as threatened or endangered, the Endangered Species Act provides that “it is unlawful for any person subject to the jurisdiction of the United States to . . . (C) take any such species within the United States.” [204] “Take” is defined in the statute to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” [205] The U.S. Fish and Wildlife Services' regulations implementing these provisions further define “harm” to “include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” [206] Take that is incidental to lawful activity is allowed, but only if the person obtains an authorization for that “incidental take” from the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate, before engaging in the activity.[207] If a person “takes” a threatened or endangered species without obtaining authorization from the appropriate agency, that person could be subject to civil or criminal penalties.[208]

Our final § 773.15(j) provides applicants and regulatory authorities with four pathways to demonstrate that the operation will be conducted in compliance with the Endangered Species Act.[209] Paragraphs (j)(1) through (4) set forth those pathways.

Section 773.15(j)(1) applies when the applicant provides documentation that the proposed surface coal mining and reclamation operations would have no effect on species listed or proposed for listing as threatened or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., or on designated or proposed critical habitat under that law. This finding requires a demonstration that no impact on a proposed or listed species, or on designated or proposed critical habitat, will occur, regardless of the severity of the impact or whether the impact is positive or negative. An applicant might demonstrate this by showing that surveys have not revealed the presence of any listed or proposed species or designated or proposed critical habitat within the proposed permit or adjacent areas or that the operation has been designed to avoid areas where a species is known to occur. However, the permit applicant and the regulatory authority should communicate early in the process with the relevant office of the U.S. Fish and Wildlife Service or National Marine Fisheries Service to ensure that any necessary surveys have been completed and any avoidance measures are sufficient to ensure that there will be no effect on relevant species or habitat.

Paragraph (j)(2) applies when the applicant and the regulatory authority document compliance with a valid Start Printed Page 93122biological opinion that covers the issuance of permits for surface coal mining operations and the conduct of those operations under the applicable regulatory program. Paragraph (j)(2) would apply to the biological opinion associated with this rulemaking, or to a biological opinion covering the issuance of permits for surface coal mining operations and the conduct of those operations. Compliance with the pertinent biological opinion is an ongoing obligation that extends for the duration of the surface coal mining and reclamation operations.

Paragraph (j)(3) is an option when we are the regulatory authority or there is another federal nexus to the proposed operation. Under this option, the applicant must provide documentation that interagency consultation under section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1536, has been completed for the proposed operation. Paragraph (j)(4) is an option when a state regulatory authority is responsible for permitting actions, and another option under this paragraph is either unavailable or is not utilized. Under this option, the applicant must provide documentation that the proposed operation is covered under a permit issued pursuant to section 10 of the Endangered Species Act of 1973, 16 U.S.C. 1539.

Some commenters requested that we revise proposed § 773.15(j) because, as initially proposed, they believed this section required the regulatory authority to make a finding that the operation was “not likely to jeopardize the continued existence of species listed or proposed for listing” under the Endangered Species Act. The commenters alleged that it was the responsibility of the Service(s) to make a “jeopardy” determination and that the regulatory authorities do not have the expertise to make this type of finding. We agree and have clarified the final regulation. As explained above, we revised this section to require the that the regulatory authority make a finding that the permit will comply with the Endangered Species Act, either because the proposed operation will have no effect upon any species listed or proposed for listing as threatened or endangered under the Endangered Species Act of 1973, or on designated or proposed critical habitat under that law or because the applicant and the regulatory authority have documented compliance with one of the mechanisms described in paragraphs (j)(2) through (4).

Many commenters also alleged that imposing a requirement that an operation must not jeopardize the continued existence of species proposed for listing as threatened or endangered under the Endangered Species Act is beyond our authority under SMCRA. Some commenters alleged that we do not have authority to enforce the requirements of the Endangered Species Act. We do not agree with either comment. As we noted in the preamble to the proposed rule, both SMCRA and the Endangered Species Act provide authority to protect species that have been proposed for listing.[210] SMCRA sections 515(b)(24) and 516(b)(11) [211] require that, at a minimum, mining 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.” The requirement to minimize impacts to “fish, wildlife, and related environmental values” is not in any way limited to species that have already been listed under the Endangered Species Act.

Moreover, three different provisions of the Endangered Species Act apply to the Department of the Interior in connection with the implementation of SMCRA. First, section 7(a)(1) of the Endangered Species Act [212] provides that “[t]he Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act.” That would necessarily include utilizing SMCRA to protect ecosystems and conserve endangered and threatened species as provided for in the Endangered Species Act.[213] Second, section 7(a)(2) of the Endangered Species Act [214] requires us to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service to “insure that any action authorized, funded, or carried out” by us will not jeopardize the continued existence of any species listed as threatened or endangered under the Endangered Species Act or result in the destruction or adverse modification of designated critical habitat. Third, section 7(a)(4) of the Endangered Species Act [215] requires that we “confer with the Secretary on any action which is likely to jeopardize the continued existence of any species proposed to be listed under section 4 [of the Endangered Species Act] . . .” (Emphasis added). Thus, section 7(a)(2) requires us to consult with the appropriate Service(s) on any actions that may impact species listed under the Endangered Species Act or designated critical habitat for those species, while section 7(a)(4) requires us to confer with the appropriate Service(s) on any actions that may jeopardize the continued existence of any species proposed to be listed under the Endangered Species Act (and any critical habitat proposed to be designated for such species). Seizing on this difference, commenters criticize our inclusion of species proposed for listing in certain provisions of this rulemaking, claiming that we have incorrectly conflated the two different requirements. The commenters are wrong. The existence of a consultation requirement under section 7(a)(2) for listed species does not diminish our separate obligation under section 7(a)(4) to address the impact of coal mining operations on species proposed for listing. Section 7(a)(4) (in addition to our SMCRA authorities) provides us with the authority to protect both species proposed for listing and proposed critical habitat.

Regarding paragraph (k), a commenter requested that we include language within paragraph (k) and in other provisions of the rule that relate to the National Historic Preservation Act [216] to explicitly state that those provisions only apply to “undertakings” and that our requirements only apply to federal regulatory programs. Similarly, another commenter asked that we clarify that the National Historic Preservation Act is not applicable to state programs and suggested that reference to the National Historic Preservation Act be removed. We did not propose any substantive changes to paragraph (k) and we are not making any changes in that paragraph in response to these comments. The suggestions made by the commenters are contrary to our longstanding position related to this topic as reflected in our 1987 rulemaking, “Protecting Historic Properties from Surface Coal Mining Operations.” This final rule amended our regulations with respect to how historic properties are considered during surface coal mining operations. Within that rulemaking, we stated:

Under section 522(e) of SMCRA, the regulatory authority (and OSMRE for permits it issues) must protect publicly and privately owned properties listed on the National Register of Historic Places. There is no obligation under section 522(e)(3) to protect properties that are eligible for, but not listed on, the National Register. However, this finding requires the regulatory authority to consider such resources when making Start Printed Page 93123permitting decisions in order to assure that the regulatory authority can assist the Secretary in implementing his responsibilities under section 106 of the National Historic Preservation Act.[217]

We continue to adhere to this position. Moreover, our proposed rule did not include any substantive changes to paragraph (k). If we determine it is appropriate to change our position on protecting historic places from surface coal mining operations, this determination would be better addressed in a future rulemaking.

Proposed paragraph (n)(1) would have required that the applicant demonstrate that the proposed operation has been designed to prevent the formation of discharges with levels of parameters of concern that would require long-term treatment after mining has been completed. Proposed paragraph (n)(2) would have required that the applicant demonstrate that there is no credible evidence that the design of the proposed operation will not work as intended to prevent the formation of discharges with levels of parameters of concern that would require long-term treatment after mining has been completed.

A commenter supported proposed paragraph (n), noting that it ensures advances in predicting the formation of mine drainage will be employed to prevent water pollution. However, other commenters expressed concern that the “no credible evidence” standard would create uncertainty and result in unjustified permit denials by regulators fearful of approving any permit application in areas where acid-forming or toxic-forming materials are present. In response, we modified paragraph (n)(2) to delete the “no credible evidence” standard and replace it with a requirement that the demonstration and finding be based on a thorough analysis of all available evidence. Final paragraph (n)(2) also requires that the applicant explain why a study or other evidence that supports a contrary conclusion is not credible or applicable to the proposed operation.

Final paragraph (n) requires not only a demonstration by the applicant, but also concurrence by the regulatory authority. The requirement for concurrence by the regulatory authority provides an additional safeguard against the approval of applications that ultimately create long-term discharges in need of treatment.

Unlike the proposed rule, final paragraphs (n)(1) and (2) do not refer to “parameters of concern” because the purpose of this finding is to prevent the formation of any long-term discharges that require treatment, regardless of whether the parameter that creates the need for treatment is a parameter of concern. In final paragraph (n)(1), we replaced “parameters of concern” with the term “toxic mine drainage,” which is both more appropriate and more encompassing. There is no need for a replacement term in final paragraph (n)(2).

Several commenters suggested that proposed paragraph (n) should be revised to explain what the term “long-term treatment” means, how a determination of a need for long-term treatment is made, and the ramifications if the findings incorrectly determine the need for long-term treatment. We do not agree that there is a need for additional specificity in the text of the rule. “Long-term” refers to a discharge that continues to require treatment for more than a short time after the completion of land reclamation. The ramifications of making a demonstration and finding that ultimately prove inaccurate will vary with the circumstances resulting in the discharge, the nature of the discharge, and the timing of the discovery. Possible outcomes include issuance of a permit revision order, enforcement action, or initiation of action to rescind the permit under section 773.20 of this rule. In all cases, the permittee will need to treat the discharge and post appropriate final assurance or bond to cover treatment costs.

A commenter expressed concern that proposed paragraph (n) would shift the burden of monitoring and accountability for everything that happens to water quality in the watershed to the coal industry. We disagree with the commenter. Final paragraph (n)(1) requires that the applicant demonstrate, and the regulatory authority concur, that the proposed operation has been designed to prevent toxic mine drainage that would require long-term treatment after mining has been completed. Final paragraph (n)(2) requires that the applicant demonstrate, and the regulatory authority concur, that a thorough analysis of all available evidence supports a conclusion that the design of the proposed operation will work as intended to prevent the formation of discharges that would require long-term treatment after mining has been completed. Final paragraph (n)(2) also provides that, if a study or other evidence supports a contrary conclusion, the applicant must explain why that study or other evidence is not credible or applicable to the proposed operation. Nothing in final paragraph (n) assigns accountability for all water quality issues in the watershed to the permittee and the monitoring requirements of this final rule are directed toward identifying mining-related impacts on water quality and quantity so that those impacts can be distinguished from nonmining-related impacts.

One commenter asserted that by incorporating paragraph (n) we were improperly attempting to adopt and incorporate by reference a flawed policy document entitled, “Hydrologic Balance Protection: Policy Goals and Objectives on Correcting, Preventing, and Controlling Acid/Toxic Mine Drainage” that we issued on March 31, 1997. In that policy and accompanying documents, 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. We do not agree that the policy is flawed because it is fully justified by SMCRA.[218] Therefore, we made no changes to paragraph (n) based on this comment.

We received many comments supporting proposed section (o), which required that the regulatory authority find 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 or § 784.16. This language is similar to sections 515(b)(24) and 516(b)(11) of SMCRA [219] and is intended to reinforce compliance with those statutory provisions. We are adopting § 773.15(o) as proposed, with the exception that the final rule does not include the phrase “as identified in § 779.20 or 783.20” because those sections do not require identification of all related environmental values.

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

We proposed to revise paragraph (e) of this section by adding paragraph (e)(4) to require that the permittee notify the regulatory authority and other appropriate state and federal regulatory agencies of any noncompliance with a 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 Start Printed Page 93124stated in section 102(a) of SMCRA.[220] We have also added final paragraph (i) that requires compliance with all effluent limitations and conditions in any National Pollutant Discharge Elimination System permit for consistency with §§ 816.41, 816.42, and 817.42.

One commenter generally supported proposed § 773.17(e) but expressed concern that the provision would unnecessarily limit the notification requirement to situations caused by the operator's noncompliance with terms and conditions of the permit. The commenter recommended broadening the requirement in proposed paragraph (e)(4) to include notification to the appropriate regulatory authorities anytime the operator's monitoring reveals the potential for environmental harm, regardless of whether it is caused by the operator's noncompliance. We decline to revise this section as the commenter suggests. As required in final rule § 780.23, an operator must monitor water resources located both within the proposed permit area, as well as adjacent areas. This monitoring must include locations that are situated upgradient and downgradient for groundwater and upstream and downstream for surface water of the mining operations. Samples obtained from the upgradient and upstream monitoring sites are representative of conditions existing in the waters prior to any potential influence of the mining and reclamation activities. Those samples collected from the downgradient and downstream sites are used to evaluate the effect of the operations on water resources once compared to the upgradient/upstream samples. Therefore, any condition detected in the samples, even in those collected in waters prior to entering the mine site indicating an off-site source, that could result in an imminent danger to the health or safety of the public or that could cause or reasonably be expected to cause significant, imminent, environmental harm will be reported as part of the ongoing monitoring requirements regardless of whether or not a noncompliance exists.

Another commenter alleged that the proposed rule language lacked clarity on when the notification was required, what information needed to be included in the notice, and the timing required for the notification. In response to these comments, the language of the final rule has been modified. We have added language in paragraph (e)(4) specifying that the operator must notify the regulatory authority and other appropriate state and federal regulatory agencies whenever conditions within the permit area result in an imminent danger to the health or safety of the public or cause or could be reasonable expected to cause significant, imminent environmental harm to land, air, or water resources, regardless of whether a noncompliance exists. We note, however, that this requirement for immediate notification is only applicable to situations that could result in an imminent danger to public health or safety or significant, imminent environmental harm. For all other situations, as required by § 840.11(a) and (b), the regulatory authority will be at the site for inspections at least monthly and, as required by §§ 816.35(b)(1) and 816.36(b)(1), will review all monitoring data quarterly. Thus, the regulatory authority will have the tools to detect changes that do not rise to the level of imminent harm.

Another commenter objected to the provision in paragraph (e)(4) that would require notice be provided to “other appropriate state and federal regulatory agencies.” According to the commenter, the SMCRA regulatory authority is the only agency with jurisdiction over compliance with SMCRA permits. We agree with commenter that the SMCRA regulatory authority has jurisdiction concerning SMCRA permit issues; however, coal mine operations are subject to other state and federal permitting actions. We have, however, limited the scope of paragraph (e)(4) only to those situations that would require the issuance of a cessation order for imminent danger or environmental harm under § 843.11(a). That approach should minimize the reporting burden on the permittee, while ensuring that the regulatory authority and other appropriate agencies receive notice of situations that require immediate attention to protect the public or prevent significant environmental harm from occurring.

We also proposed to add a new permit condition in paragraph (h) of this section, which would require 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. Several commenters objected to this proposed addition. A couple of commenters stated that requiring Clean Water Act permits before mining contradicted section 702 of SMCRA.[221] Others interpreted proposed paragraph (h) as allowing SMCRA to supersede the authority of Clean Water Act agencies in determining when permits are required. We do not agree with those commenters who stated that it violated section 702(a) of SMCRA or otherwise superseded the authority of Clean Water Act agencies. Nothing in the language of this condition authorizes the SMCRA regulatory authority to determine when a Clean Water Act permit is needed—that is exclusively the jurisdiction of the agencies responsible for implementing and administering the Clean Water Act. Instead, the condition merely underscores that the permittee must obtain any required permits, authorizations, or certifications before initiating mining activities for which those permits, authorizations, and certifications are needed. The condition will allow the SMCRA regulatory authority to take enforcement action if another agency determines that a non-SMCRA permit is needed, but the SMCRA permittee does not obtain the necessary permit before beginning the pertinent mining operations.

These same commenters also questioned why we would single out the Clean Water Act as opposed to other state and federal permits for inclusion as permit conditions. After evaluating these comments, we have decided to expand the scope of paragraph (h) to require that the permittee obtain all necessary authorizations, certifications, and permits in accordance with “other applicable federal, state, and tribal laws before conducting any activities that require authorization, certification, or a permit under those laws.” Within the proposed rule, we limited the scope of this provision to the Clean Water Act because that is the primary federal statute applicable to water quality and given the focus of this rule it satisfied our purpose to highlight the need for compliance with the Clean Water Act and to enhance coordination with the Clean Water Act authorities. See 80 FR 44436, 44480 (Jul. 27, 2015). Upon further review, we find no reason to limit the scope of this provision to the Clean Water Act as it is equally important that the permittee comply with all applicable laws.

As discussed in Part IV, above, in response to general comments about direct enforcement of water quality standards we have added paragraph (i) to final rule §  773.17. This paragraph adds a condition whereby the permittee must comply with all effluent limitations and conditions in any National Pollutant Discharge Elimination System permit issued for their operation by the appropriate authority under the Clean Water Act. As we explained in Part IV of the preamble, Start Printed Page 93125the addition of this required permit condition and the revised rule text at 30 CFR 816.42 supports our longstanding regulatory requirement that coal mining operations must comply with the effluent limitations prescribed by Clean Water Act authorities in NPDES permits under section 402 of the Clean Water Act.[222] In combination, these revisions are intended to ensure that violations of effluent limitations are violations of the SMCRA permit, and therefore are enforceable by the SMCRA regulatory authority.

Section 773.20: What actions must the regulatory authority take when a permit is issued on the basis of inaccurate information?

Under proposed § 780.19(k), a permit issued on the basis of what the regulatory authority later determines to be substantially inaccurate baseline information would be void from the date of issuance and have no legal effect. Proposed paragraph (k) also would have required that the permittee cease mining-related activities and immediately begin to reclaim the disturbed area upon notification by the regulatory authority that the permit is void.

Some commenters opposed proposed § 780.19(k) on the basis that it deprived permittees of their rights without due process and that the phrase “substantially inaccurate” was too subjective, vague, poorly defined, essentially unlimited in scope, and difficult to enforce. One commenter alleged that proposed paragraph (k) was unreasonable because it did not consider whether the inaccuracy was intentional or had any material impact. Another commenter characterized the proposed paragraph as an unauthorized punitive provision that lacks any statutory support. According to that commenter, section 521(a)(4) of SMCRA [223] provides the sole circumstances under which a SMCRA permit may be revoked—and then only for a pattern of violations.

The commenter further alleged that the explanation in the preamble that proposed § 780.19(k) is necessary to avoid or minimize the environmental harm that could result from initiation or continuation of an operation approved on the basis of inaccurate baseline information constitutes flawed reasoning because proposed paragraph (k) does not require any connection between the inaccurate baseline information and environmental harm—it merely presumes harm without a sufficient foundation. According to the commenter, the sanction (permit nullification) is disproportionately harsh compared to the lesser sanctions and penalties that section 521 of SMCRA [224] authorizes for violations that are causing actual harm on the ground. The commenter noted that, unlike proposed paragraph (k), section 521 affords the permittee due process with respect to the sanctions and penalties that it authorizes. Finally, the commenter urged that we rely upon the regulatory authority's power to order revision of a permit under section 511 of SMCRA [225] to address legitimate concerns with permits that have been issued.

Several commenters expressed concern that adoption of proposed § 780.19(k) would create uncertainty as to the validity of the bond posted for the permit. One commenter suggested that the rule should be revised to specify that the permit would be revoked rather than voided, a change that the commenter indicated would resolve uncertainty about the status of the bond. Several commenters also expressed concern that because the permit would be considered null and void from the date of issuance, the former permittee theoretically could be subject to enforcement action for mining without a permit during the time between permit issuance and permit nullification.

One commenter thought that we had already addressed this issue in the regulations at §§ 773.21 through 773.23 governing improvidently issued permits. That is not the case, however, because those regulations apply only to the permit eligibility criteria of the applicable regulations implementing section 510(c) of SMCRA; [226] i.e., an improvidently issued permit is a permit that should not have been issued because, at the time of permit issuance, the permittee or operator owned or controlled a surface coal mining and reclamation operation with an unabated or uncorrected violation. See 30 CFR 773.21(a). Another commenter suggested that we replace proposed paragraph (k) with regulations analogous to those that apply to improvidently issued permits. However, this commenter, like several other commenters urged us to limit their applicability to situations in which information has been falsified or the applicant intentionally submits inaccurate or incomplete data.

After evaluating the comments received, we have decided not to adopt proposed § 780.19(k). Instead, as suggested by one commenter, we are replacing the permit nullification provisions of that paragraph with procedures and requirements analogous to those that apply to improvidently issued permits under §§ 773.21 through 773.23. This approach will afford the permittee ample due process, as urged by numerous commenters. Consistent with the new approach, we are codifying the replacement provisions in section 773.20 rather than section 780.19 because Part 773 contains the requirements for permit processing. However, we do not agree with those commenters who suggested that these regulations should apply only when information has been falsified or when the applicant intentionally submits inaccurate or incomplete data. The purpose of final § 773.20 is to minimize both the possibility that mining conducted under permits approved on the basis of inaccurate information could result in environmental harm and the extent of that harm. The reason for the inaccuracy of the information is not relevant to attainment of this purpose. Thus, limiting § 773.20 to situations in which permit application information was intentionally falsified would be counterproductive and inconsistent with the purpose of this section.

We also disagree with the comment that section 521(a)(4) of SMCRA provides the sole circumstances under which a SMCRA permit may be revoked. As discussed in the preamble to the rule concerning improvidently issued permits,[227] the U.S. Court of Appeals for the D.C. Circuit has held that SMCRA provides both express and implied authority for the suspension or rescission of improvidently issued permits:

While it is true that section 510(c) does not expressly provide for suspension or rescission of existing permits, the IFR [interim final rule] rescission and suspension provisions reflect a permissible exercise of OSM's statutory duty, pursuant to section 201(c)(1) of SMCRA, to “order the suspension, revocation, or withholding of any permit for failure to comply with any of the provisions of this chapter or any rules and regulations adopted pursuant thereto.” 30 U.S.C.[ ] 1211(c). The IIP [improvidently issued permit] provisions simply implement the Congress's general directive to authorize suspension and rescission of a permit “for failure to comply with” a specific provision of SMCRA—namely, section 510(c)'s permit eligibility condition. In addition, apart from the express authorization in section 1211(c), OSM retains “implied” authority to suspend or rescind improvidently provided permits Start Printed Page 93126because of its express authority to deny permits in the first instance.[228]

The same rationale applies to final § 773.20 because it authorizes suspension or rescission of a permit for failure to comply with a specific provision of SMCRA; i.e., the prohibition in section 510(b)(1) [229] against approval of a permit application unless the regulatory authority finds in writing that “the permit application is accurate and complete and that all the requirements of this Act and the State or Federal program have been complied with.” Similarly, under the rationale set forth by the court, the regulatory authority has implied authority under SMCRA to suspend or rescind permits issued on the basis of inaccurate information because the regulatory authority has the authority to deny the permit in the first instance.

We further disagree with the comment that described the proposed paragraph as duplicative and unnecessary because states already have effective administrative processes in place to scrutinize data and address issues. We applaud the administrative processes that states have put in place as safeguards against the approval of permit applications with inaccurate baseline information. However, no process is perfect. Final § 773.20 provides a mechanism to address defective permits that slip through those safeguards.

Paragraph (a) of § 773.20 provides that the regulatory authority must initiate action that could lead to suspension or rescission of the permit whenever the regulatory authority discovers that the permit was issued on the basis of what later turns out to be inaccurate baseline information. In response to commenters' concerns that the “substantially inaccurate” threshold in proposed § 780.19(k) was too subjective and too broad in scope, we added a proviso that § 773.20(a) applies only if the information is inaccurate to the extent that it would invalidate one or more of the findings required for permit application approval under § 773.15 or other provisions of the regulatory program.

Paragraphs (b) through (d) of § 773.20 are a streamlined version of the requirements and procedures in 30 CFR 773.21 through 773.23 pertaining to improvidently issued permits. We have adapted those requirements and procedures as appropriate, discarding provisions that are unique to improvidently issued permits. We have replaced the references to the administrative review procedures of 43 CFR 4.1370 through 4.1377, which apply only to improvidently issued permits, with references to 30 CFR part 775, which contains administrative and judicial review provisions pertinent to decisions on permits. In addition, we established a uniform 60-day notice period for proposed suspensions and rescissions, rather than adopting the 60-day notice period for proposed suspensions and 120-day notice period for proposed rescissions set forth in § 773.22(b) and (c). We find that there is no purpose or need for the longer notice period for proposed rescissions, particularly when the purpose of § 773.20 is to minimize any environmental harm that may result from the issuance of permits on the basis of inaccurate information. Finally, in 30 CFR 773.20 (c) and (d), we provide a mechanism through which the permittee can avoid permit suspension or rescission by providing updated information and submitting an application to revise the permit as needed to correct the deficiency. We are adopting this mechanism in part because of comments urging us to allow the permittee to take corrective action instead of requiring nullification of the permit. As the commenters noted, permit nullification would be disproportionately harsh compared to the sanctions and penalties that SMCRA and the regulations impose for performance standard violations. Providing an alternative to permit suspension or rescission also is responsive to a comment that we should allow use of the permit revision procedures of section 511 of SMCRA to remedy the deficiency.

Paragraph (e) of § 773.20 sets forth the actions that the permittee must take if a permit is suspended or rescinded. Paragraph (e) is similar to, and based upon 30 CFR 843.13(c), which specifies the actions that the permittee must take if a permit is suspended or revoked for a pattern of violations. Paragraph (e)(1) provides that, if the permit is suspended, the permittee must cease all surface coal mining operations under the permit and complete all affirmative obligations specified in the suspension order within the time established in that order. It also specifies that the regulatory authority must rescind the permit if the permittee does not complete those obligations within the time specified. Paragraph (e)(2) provides that, if the permit is rescinded, the permittee must cease all surface coal mining operations under the permit and complete reclamation within the time specified in the rescission order.

Paragraph (f) of § 773.20 addresses commenter concerns about the impact on bond coverage. Paragraph (f)(1) provides that, if the regulatory authority suspends or rescinds a permit, the bond posted for the permit will remain in effect until the permittee completes all reclamation obligations under the reclamation plan approved in the permit and obtains bond release under §§ 800.40 through 800.44. Paragraph (f)(2) provides that the regulatory authority must initiate bond forfeiture proceedings under § 800.50 if the permittee does not complete all reclamation obligations within the time specified in the permit rescission order.

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

Section 774.9: Information Collection

Section 774.9 pertains to compliance with the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. We are adding contact information for persons who wish to comment on these aspects of part 774.

Section 774.10: When must the regulatory authority review a permit after issuance?

We are adopting § 774.10 as proposed, with the exception that we are reorganizing paragraph (a) and adding a new paragraph (a)(2), which replaces proposed § 780.16(c)(5). In the final rule, we are re-designating the introductory text of proposed § 774.10(a) as paragraph (a)(1). In concert with this change, we are re-designating proposed paragraphs (a)(1) through (4) as paragraphs (a)(3) through (6).

Proposed § 780.16(c)(5) required that the permittee periodically evaluate the impacts of the operation on fish, wildlife, and related environmental values in the permit and adjacent areas and then use that information to modify the operations to avoid or minimize adverse effects. Several commenters requested that we provide guidance or specify the frequency and rigor of the mandated periodic evaluation of an operation's impact on fish and wildlife. Additionally, commenters requested clarification as to whose responsibility it would be to complete this evaluation. Some commenters opposed this paragraph because it could be interpreted as requiring that the permittee modify operations even when the adverse effects on wildlife are beyond the control of the permittee. Start Printed Page 93127Other commenters found this paragraph to be unnecessarily disruptive in that it would undermine the certainty provided by approval of the permit application. In response to these comments, we are not adopting proposed § 780.16(c)(5). Instead, we are including a modified version of that paragraph within the final rule as § 774.10(a)(2). Under the final rule, evaluation of the impacts of the operation on fish, wildlife, and related environmental values will be part of the midterm permit review conducted by the regulatory authority and thus will be the responsibility of the regulatory authority. This timing and the shift in responsibility from the permittee to the regulatory authority is appropriate because the purpose of the midterm permit review is to determine whether the assumptions and predictions upon which permit application approval was based have proven reasonably accurate. If the assumptions and predictions are not accurate, the regulatory authority will issue an order to the permittee to revise the permit to ensure compliance with the regulatory program. In this case, if the regulatory authority determines, as a result of the midterm permit review, that the fish and wildlife protection and enhancement plan approved in the permit is not effectively minimizing disturbances and 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,[230] the regulatory authority will issue an order to the permittee to revise the permit to update the technology required or make other changes necessary to comply with this provision of the Act. The regulatory authority has the discretion to determine the extent of the evaluation conducted as part of the midterm permit review.

Section 774.15: How may I renew a permit?

We proposed within paragraph (b)(2)(vii), relative to application requirements and procedures, to require an analysis of the monitoring results under §§ 816.35 through 816.37 or §§ 817.35 through 817.37, relating to groundwater, surface water, and biological condition of streams and an evaluation of the accuracy and adequacy of the determination of the probable hydrologic consequences of mining prepared under § 780.20 or § 784.20 of this chapter. We also proposed at paragraph (b)(2)(viii) to require an update of the determination of the probable hydrologic consequences of mining prepared under § 780.20 or § 784.20, if needed, or documentation that the findings in the existing determination are still valid.

In addition, proposed paragraph (c)(1), relating to the approval process, provided that a complete and accurate renewal application will be approved unless certain findings are made. We proposed one such finding at (c)(1)(viii), which would allow a regulatory authority to disapprove an application for renewal if the regulatory authority determined, based on an analysis of the monitoring results or the updated determination of the probable hydrologic consequences of mining, that the finding it originally made under § 773.15(e)—the operation is designed to prevent material damage to the hydrologic balance outside the permit area—is no longer accurate.

Several commenters objected to proposed requirements at (b)(2)(vii), (b)(2)(viii), and (c)(1)(viii). These commenters expressed concern that the proposed requirements would compromise the right of successive renewal and recommended the deletion of these regulations. The commenters also stated that there are existing opportunities to review data as it relates to the probable hydrologic consequences, and it is unnecessary to couple a data review requirement with permit renewal. After reviewing the comments, we agree with the commenters and have deleted the proposed requirements at (b)(2)(vii), (b)(2)(viii), and (c)(1)(viii) from the final rule.

E. Part 777—General Content Requirements for Permit Applications

Section 777.1: What does this part cover?

We are finalizing § 777.1 as proposed. We received no comments on this section.

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

Proposed paragraph (a)(3) of this section would have required that all permit applications be filed in an electronic format prescribed by the regulatory authority unless the regulatory authority grants an exception for good cause. One commenter supported this proposal because it would facilitate the acquisition and transfer of permit files by coalfield residents via the internet and avoid the need for those residents to make a lengthy trip to the office of the regulatory authority and copy sometimes unwieldy documents. However, other commenters alleged that adoption of this provision would require major changes in state regulatory programs at great expense for both the regulatory authority and the applicant. Several commenters characterized the proposed requirement as an unfunded mandate on the states unless we are prepared to award grants to states to fully fund the infrastructure needed for electronic permitting. One commenter acknowledged that a fully implemented electronic permitting system may facilitate transfer of application documents, thus avoiding copying and mailing costs. However, the commenter noted, these savings may be illusory as the regulatory authority likely also would request multiple hard copies. Some commenters argued that decisions on electronic permitting should be left to the state regulatory authorities. Another commenter alleged that SMCRA provides no authority for us to prescribe the format of permit applications.

For the reasons set forth in the preamble to the proposed rule,[231] we continue to support and encourage the use of electronic permitting. However, we recognize that state regulatory authorities differ in their capability to implement electronic permitting and that implementation may not be cost-effective or practicable in all cases. In addition, we cannot guarantee availability of the funding needed to implement electronic permitting. Therefore, we have not adopted § 777.11(a)(3) as proposed and have removed reference to any requirement that permit applications be filed in an electronic format. Therefore, the final rule text is substantially similar to previous regulation § 777.11. As finalized, paragraph (a)(3) is substantively identical to section 507(b) of SMCRA,[232] which provides that “[t]he permit application shall be submitted in a manner satisfactory to the regulatory authority.”

Several commenters provided suggestions on how large map files, professional certifications, and verification of submittals could be submitted electronically. One commenter recommended that all systems include a common system component, which could allow a company to use a central system that can easily be transferred to a common file type for delivery across multiple states. Another commenter urged that digital permit files be available for download on a document-by-document Start Printed Page 93128basis because persons with computers that have slow processor speeds may not be able to open permits in large file format without having their computers crash repeatedly. The commenter also recommended that digital permit files be available on both compact disc and flash drive and that digitally submitted maps, plans, and cross-sections be made available in both high-definition and low-definition versions. We recognize the merit of these suggestions and recommendations. However, we are not including them in the final rule because final paragraph (a)(3) does not require use of electronic permitting. Regulatory authorities electing to require the submission of permit applications electronically may wish to consider these recommendations.

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

Final Paragraph (a): Technical Data and Analyses

In paragraph (a)(1), we proposed to add requirements for the submission of certain data, such as metadata and field sampling sheets associated with the technical data submitted in the permit application. Several commenters asserted that requiring materials submitted to the regulatory authority (including technical data, maps, plans and cross sections) to be accompanied by metadata, where appropriate, was a good idea and provided valuable information to the regulatory authority. However, several regulatory authorities opined that the requirements under § 777.13, including providing metadata would create an undue hardship for the regulatory authority by requiring additional funds and personnel to log, track, and review the data. We are aware that we will be requiring the operator to collect additional data and submit that data to the regulatory authority, but the data is necessary to establish quality, comprehensive baseline data, along with mining and post-mining data that will help ensure there are no adverse impacts from coal mining operation that would cause material damage to the hydrologic balance outside the permit area. As explained further in the proposed rule, metadata, which consists of data describing the contents and context of data files, greatly increases the usefulness of the original data by providing information about how, where, when, and by whom the data were collected and analyzed.[233]

Several commenters opined that the requirement within proposed paragraph (a) about submitting the results of the laboratory quality assurance and quality control procedures to the regulatory authority was vague and did not include the relevant information necessary to determine the level of quality assurance and quality control (level I, II, III, or IV). In addition, the commenters claimed the requirement for electronically submitted data including the identification of any data transformations would require significant effort by the laboratories that perform this work. The commenters opined the transformed data are typically identified by the laboratory through the use of flags within the final laboratory report and because these flags are generated by the laboratory the flags are likely to differ from lab to lab. Our intent with this requirement is to ensure the quality assurance and quality control data, regardless of the level, is submitted to the regulatory authority so that they can review the data. Furthermore, transformed data should be noted by the laboratory. However, we are not requiring the codes used to denote the transformed data to be the same for all laboratories. Therefore, based on these comments, we did not make any changes to proposed paragraph (a), pertaining to the submission of laboratory quality assurance and quality control data, in the final rule.

However, for the purpose of clarification, we added additional language to the final rule about water quality field sampling sheets that are required to be submitted to the regulatory authority. In the proposed rule, we required field sheets for water quality samples from wells.[234] It was our intent that a permittee submit to the regulatory authority sample field sheets for all water quality samples collected from surface water and groundwater monitoring. Our intent is supported by proposed paragraph (b) where we reference sampling and analysis of surface water and groundwater. To clarify this we added language to final paragraph (a) expressly requiring submission of the field sampling sheets for each surface-water sample collected and for each groundwater sample collected from wells, seeps, and springs. We added “seeps and springs” to the list of sample field sheets we require a permittee to submit to the regulatory authority because seeps and springs are commonly monitored to assess water quality of groundwater,

Final Paragraph (b): Sampling and Analyses of Groundwater and Surface Water

In paragraph (b) we proposed to add a requirement that sampling and analyses of surface water and groundwater be conducted according to the methodology in 40 CFR parts 136 and 434. Several commenters asserted that some of the methodology in 40 CFR parts 136 and 434 is not applicable to the type of sampling and analysis conducted at coal mines and the operator should be allowed to use a scientifically-valid methodology acceptable to the regulatory authority. We agree. To address this comment, we revised paragraph (b) to clarify that all sampling and analyses of groundwater and surface water be performed to satisfy all the requirements of this subchapter and that they are conducted according to the methodology in 40 CFR parts 136 and 434; or scientifically-defensible methodology acceptable to the regulatory authority, in coordination with any agency responsible for administering or implementing a program under the Clean Water Act that requires water sampling and analysis. The addition of (b)(2) takes a reasonable approach to sampling and analyses of surface water and groundwater requirements of this subchapter.

Additionally, we received several comments from industry and regulatory authorities recommending that we remove the requirements to provide surface water and groundwater sampling field sheets to the regulatory authority. Instead, these commenters suggested that the regulatory authorities should be able to use their discretion to request them as needed. We disagree. Surface water and groundwater sampling field sheets contain the metadata regarding field parameter measurements and methods used in the collection of water quality samples of both surface water and groundwater. Meta data contained on sampling field sheets, such as, calibration information for instruments used to measure field parameters and information concerning the sampling methods used to collect water quality samples are necessary to accurately assess the water quality data. Further, several commenters suggested that sending groundwater sampling field sheets to the regulatory authority does not enhance the review process because applicants already provide boring logs and well construction diagrams which include information concerning the depth of the well screens for all monitoring wells included as a part of the permit application. In addition, the commenters asserted that descriptions Start Printed Page 93129of the sampling methodology for all groundwater samples are included in detail within the hydrogeology sections of the SMCRA permit application and that the static water level collected prior to any purging should be considered sufficient for understanding whether the well screen was or was not fully saturated on the sample date. We disagree with the commenters' assertions about the lack of importance of groundwater field sheets when reviewing hydrologic data from the well. We are requiring groundwater sampling sheets be submitted to the regulatory authority because the groundwater sampling sheets contain information about instrument calibration, well purging, and sample collection that are necessary to thoroughly review water-quality data and are not included in the information referenced in the comment. Therefore, no changes were made to the final rule in response to this comment.

Final Paragraph (c): Geological Sampling and Analysis

We received one comment about proposed paragraph (c). The commenter opined that by requiring all geologic sampling and analysis to be conducted using a scientifically valid mythology, it would result in increases in costs and time for permit preparation and approval. We agree that increases in costs and time for permit preparation and approval may occur; however any cost increase is outweighed by the added benefit of better permitting decisions using comprehensive and high quality geologic data. Therefore, we made no changes to paragraph (c) in response to this comment. However, in response to a federal agency comment, in the final rule we use the term “scientifically-defensible methodology,” instead of the term “scientifically-valid methodology,” as proposed.

Final Paragraph (d): Use of Models

A few commenters requested an explanation for our alleged aversion to the use of models to characterize baseline hydrologic condition within § 777.13(d) when elsewhere in the rule we allow models to evaluate ecological function of streams through the use of bioassessment protocols. These commenters assert that this alleged disparity creates regulatory inconsistency and should be addressed for clarity. These commenters mischaracterize our position. In final paragraph (d), we allow for the use of models as long as they incorporate site specific data to calibrate each model. Contrary to commenters' assertions, we also require site specific data for our evaluation of ecological function; therefore our regulations are consistent.

We also proposed 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. By adding these additional requirements we intend to improve the accuracy and validity of models and promote better data collection and analysis procedures to ensure more informed permitting decisions. Several commenters from industry and regulatory authorities recommended that we provide regulatory authorities sufficient discretion to allow for professional judgment concerning the necessity for site-specific data and the data requirements to process models. Also, several commenters opined that using site-specific data for calibration may not be possible because it may be costly and the regulatory authority does not have control of activities outside of coal mining permit, thus making it difficult to include that site specific data. We disagree because it is important to use actual site-specific data to calibrate the models. A model that is calibrated using site-specific data is more likely to provide better modeling results.

Therefore, the final rule adopts § 777.13 as proposed, with minor changes as explained herein to paragraphs (a), (b), and (d).

Section 777.14: What general requirements apply to maps and plans?

We revised § 777.14 from the proposed section by making editorial revisions to clearly distinguish between requirements that apply to maps and plans for all operations and those that apply only to maps and plans for operations in existence before the effective date of a permanent regulatory program for the state in which the operation is located. Specifically, paragraph (a) applies to maps and plans for all operations, while paragraph (b) applies only to maps and plans for operations in existence before the effective date of a permanent regulatory program for the state in which the operation is located. This distinction is consistent with the preamble to this rule as originally promulgated, which states that “[t]he concept of delineation of phases of mining on application maps relates to key dates in the interim [initial] and permanent regulatory programs establishing different periods and levels of regulation under the Act.” See 44 FR 15017 (Mar. 13, 1979).[235]

In the final rule, we removed the first sentence of previous paragraph (b) because it is poorly worded, unnecessary, duplicative of the remainder of paragraph (b), and could erroneously be interpreted as applying to maps and plans for all operations, not just maps and plans for operations in existence before the effective date of a permanent regulatory program for the state in which the operation is located. We also revised paragraph (b) to clarify that its provisions apply only when applicable; i.e., that there is no need to provide maps and plans showing each period listed in paragraphs (b)(1) through (3) if the operations was not in existence during one or more of those periods.

Previous paragraph (b)(4) required that maps and plans show those portions of the operation where surface coal mining operations occurred after the estimated date of issuance of a permit under the approved regulatory program. This paragraph is unnecessary because the map of the proposed permit area identifies the lands upon which surface coal mining and reclamation operations will take place after issuance of the permit. Furthermore, previous paragraph (b)(4) inappropriately refers to surface coal mining operations that occurred after the estimated date of permit issuance. This language is inconsistent with section 506(a) of SMCRA,[236] which specifies that “no person shall engage in or carry out on lands within a State any surface coal mining operations unless such person has first obtained a permit. . . .” Therefore, final section 777.14 does not include a counterpart to previous paragraph (b)(4).

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

We are finalizing § 777.15 as proposed. We received no comments on this section.

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

Section 779.1: What does this part do?

With the exception of altering the title of this section for clarity, we are Start Printed Page 93130finalizing section 779.1 as proposed. We received no comments on this section.

Section 779.2: What is the objective of this part?

We are finalizing § 779.2 as proposed. We received no comments on this section.

Section 779.4: What responsibilities do I and government agencies have under this part?

We are finalizing § 779.4 as proposed. We received no comments on this section.

Section 779.10: Information Collection

Section 779.10 pertains to compliance with the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. We are adding contact information for persons who wish to comment on these aspects of part 779.

Previous § 779.11: General Requirements

We have removed and reserved previous § 779.11 for the reasons discussed in the preamble to the proposed rule.[237]

Previous § 779.12: General Environmental Resources Information

We have removed and reserved previous § 779.11 for the reasons discussed in the preamble to the proposed rule.[238]

Section 779.17: What information on cultural, historic, and archeological resources must I include in my permit application?

We are finalizing § 779.4 as proposed. We received no comments on this section.

Section 779.18: What information on climate must I include in my permit application?

One commenter requested that we add language requiring climate data and analysis to this section. We did not add this requirement because a requirement to include a statement of the climatic factors, including average seasonal precipitation, direction and velocity of winds, and temperature ranges, is already required under final rule §§ 779.18 and 783.18 and additional information under this section would not add meaningful information.

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

Several commenters, including the U.S. Forest Service and other federal agencies, expressed support for the proposed changes to this section. In particular, these commenters voiced strong support for the use of native species rather than introduced species because the use of native species would minimize adverse effects on fish and wildlife.

Other commenters opposed the proposed revisions to § 779.19 as unnecessary and excessively burdensome. These commenters urged us not to adopt the proposed revisions and instead simply reaffirm the regulatory authority's discretion to require vegetation information as needed. We disagree that the previous regulations were adequate. The previous regulations provided the regulatory authority with complete discretion in deciding whether to require submission of vegetation information as part of the permit application. In view of other changes to our regulations to generally require revegetation with native species and reestablishment of native plant communities (with certain exceptions), discretionary submission of premining vegetation information is no longer appropriate. The vegetation information required by final section 779.19 is essential to fully implement the revegetation requirements of section 515(b)(19) of SMCRA,[239] which provides that surface coal mining operations must 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.” To comply with this requirement, both the applicant and the regulatory authority need to know the vegetative cover native to the area of land to be affected and the extent of cover of the natural vegetation of the area. The information must be in sufficient detail to assist in preparation of the revegetation plan under § 780.12(g) and to provide a baseline for comparison with postmining vegetation, as final paragraph (b)(1) requires. In addition, the information required by § 779.19 will assist in implementation of section 508(a)(2) of SMCRA,[240] 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.

In response to comments that the proposed rule was unnecessary and excessively burdensome, we reevaluated each element of the proposed rule and narrowed the requirements down to those that we determined to be necessary to ensure revegetation and reclamation of mine sites in accordance with SMCRA. We also reorganized and restructured the rule to improve clarity.

Proposed paragraph (a)(1) would have required that the applicant identify, describe, and map existing vegetation types and plant communities on the proposed permit and adjacent areas and within any proposed reference areas. Several commenters asserted that we lack the authority under SMCRA to require vegetation information for the adjacent area. While we do not agree with that assertion, we determined that vegetation information for the adjacent area typically would not be useful either to the applicant in preparing the reclamation and revegetation plans for the permit or to the regulatory authority in reviewing and processing the permit application. Therefore, final paragraph (a) does not require vegetation information for the adjacent area. The regulatory authority, however, may use its discretion to require vegetation information for the adjacent area.

Several commenters questioned the value of the vegetation information requirements in situations where reestablishment of native plant communities would be inconsistent with the postmining land use. We did not provide a waiver under these circumstances for several reasons. First, this rule is intended to more fully implement section 508(a)(2) of SMCRA,[241] which requires that the permit application include a statement of “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.” Descriptions of the vegetative communities that exist on the site, as required by final paragraph (a), and of the native vegetation and plant communities typical of that area in the absence of human alterations, as required by final paragraph (c), are an important part of the determination of the capability of the land. Second, there is no guarantee that the approved postmining land use will be implemented before expiration of the revegetation responsibility period or even that it will be implemented at all. Therefore, our final revegetation rules at §§ 780.12(g) and 816.111 through 816.116 require planting and reestablishment of native plant communities on mined lands unless the approved postmining land use is implemented before the entire bond amount for the area has been fully Start Printed Page 93131released under §§ 800.40 through 800.43. Third, sites with agricultural, industrial, commercial, residential, or recreational postmining land uses that may be incompatible with restoration of native plant communities overall often contain small areas that can (and, under this final rule, must) be planted with native species to provide some wildlife habitat.

A commenter on proposed paragraph (a) asked that we specify how an applicant should select appropriate reference areas. Other commenters interpreted the proposed rule as always requiring use of reference areas and objected to this alleged requirement. We did not intend to require use of a reference area. We worded final paragraph (a) in a manner that clarifies that an applicant may use a reference area for purposes of determining revegetation success under § 816.116, but that use of a reference area is not required. We find it unnecessary to provide further regulatory instruction on selecting reference areas because selecting reference areas is a common scientific practice. Furthermore, selection of a reference area depends upon site-specific factors and the regulatory authority is the best resource for further guidance on that matter.

Paragraph (b)(2) of the final rule, which we proposed as paragraph (a)(1), requires that the description and map of vegetation types and plant communities be adequate to evaluate whether the vegetation provides important habitat for fish and wildlife and whether the proposed permit area contains native plant communities of local or regional significance. Some commenters requested additional clarification about what would constitute a native plant community of “local or regional significance,” while another commenter asked us to define “plant community.” We did not revise the rule in the manner that the commenters requested because “plant community” is a commonly understood scientific term and because the regulatory authority should have the latitude to determine what constitutes a plant community of local or regional significance. We encourage the regulatory authority to confer with state and federal agencies with responsibilities for fish and wildlife in making this determination. One potential resource for identifying native plant communities of local or regional significance is the Natural Heritage Network, a network of state programs that gather and disseminate biological information on species of conservation concern and natural plant communities.

Several commenters expressed concern that the dominance of non-native species of grasses and forbs and the presence of invasive or noxious species would make reestablishment of native plant communities challenging, if not impossible. As an example, one commenter provided results from the latest Natural Resources Conservation Service's National Resource Inventory survey showing that over 50 percent of the non-federal native grassland in North Dakota is impacted by non-native species and that non-native species cover at least 25 percent of the soil surface. The Natural Resources Conservation Service concluded that it is impossible to return a site to its historic plant community if Kentucky bluegrass comprises more than 30 percent of the vegetation at the site.[242] The Natural Resources Conservation Service's finding supports our requirement to avoid non-native, invasive species in reclamation and illustrates the value of reestablishing the native plant communities unless introduced species are necessary for the postmining land use. The Natural Resource Inventory also concluded that “[n]on-native invasive plants negatively impact rangeland throughout the western United States by displacing desirable species, altering ecological and hydrological processes, reducing wildlife habitat, degrading systems, altering fire regimes, and decreasing productivity.” [243]

Commenters requested that we clarify the permissible amount of invasive species after the completion of reclamation, especially when invasive species are present prior to mining. In response, we added paragraph (b)(3) to the final rule. That paragraph requires the applicant to identify areas with significant populations of invasive or noxious species. Final paragraph (b)(3) provides the regulatory authority with the information necessary to determine whether there is a potential problem with non-native or noxious species and to decide on the appropriate steps to take, such as authorizing unique handling of the soil materials as described in § 816.22(f)(1)(ii) of the final rule. Section 780.12(g)(1)(xi) of the final rule requires that the proposed revegetation plan describe measures that will be taken to avoid the establishment of invasive species on reclaimed areas and to control invasive species if they are established. The allowable amount of invasive species at the time of bond release will depend on multiple factors, which we discuss in the performance standards related to revegetation success in §§ 816.111 through 816.116 of the final rule.

In response to a comment from the U.S. Army Corps of Engineers to revise the rule to provide better protection for wetlands, we added paragraph (b)(4) to the final rule. That paragraph requires that the applicant delineate all wetlands and areas bordering streams that support, or are capable of supporting, hydrophytic or hydrophilic vegetation or vegetation typical of floodplains. Hydrophytic vegetation consists of plants that grow either partly or totally submerged in water, while hydrophilic vegetation consists of water-loving plants that grow along the margins and banks of rivers and streams. This vegetation is indicative of wetlands, which means that vegetation information of this nature will proved baseline data to assist in the identification and protection of wetlands. This provision also will facilitate implementation of § 816.97(e) of the final rule, which requires use of the best technology currently available to avoid, restore, or replace wetlands and to enhance wetlands where practicable. Protection or restoration of wetlands is difficult in the absence of information about where those wetlands were originally located and what type of vegetation they supported. The requirement for information about vegetation bordering streams also will facilitate implementation of our stream assessment requirements in § 780.19(c)(6) and our streamside vegetative corridor requirements of § 816.57(d)(2)(iii).

Commenters requested that we specify a timeframe for the requirement in proposed § 779.19(a)(2) that the permit applicant identify the plant communities that would exist on the proposed permit area under conditions of natural succession. Some commenters requested that we specify whether the permit applicant must do this for each of the particular stages of succession or whether the requirement applies only to the climax community. One commenter noted that, given the various intensive land uses over the last 200 years and the presence of many non-native species, it could be very difficult to know what qualifies as “natural succession” and urged us to remove this requirement. As an example, the commenter questioned whether tallgrass prairie would be the Start Printed Page 93132natural succession community in the Midwest. After evaluating these and other comments, we decided not to adopt proposed paragraph (a)(2). We replaced proposed paragraph (a)(2) with final paragraph (c), which provides that, if the vegetation on the proposed permit area has been altered by human activity, the applicant must describe the native vegetation and plant communities typical of the area in the absence of human alterations. This information should be readily available from historical references and may be inferred from surviving remnants of natural vegetation in the surrounding area, if those remnants are similar to the proposed permit area. The applicant and regulatory authority need this information to prepare and review the revegetation plan, which must be designed to restore native plant communities, as appropriate and consistent with the final rule.

Proposed § 779.19(b) would have required that the vegetation descriptions in the permit application adhere to the National Vegetation Classification Standard, while proposed paragraph (c) would have allowed use of other generally-accepted vegetation classification systems in lieu of the National Vegetation Classification Standard. In the preamble to the proposed rule, we invited comment on what other classification systems may exist. See 80 FR 44436, 44483 (Jul. 27, 2015). We received a large number of comments in response to this request. Many commenters proposed to keep the systems already in use. Other commenters expressed support for the National Vegetation Classification Standard and stated that any alternatives should be evaluated based in part, on consistency with the National Vegetation Classification Standard approach.

Some commenters opined that the National Vegetation Classification Standard is not the best method for classifying vegetation and that the decision as to what method to use should be left to the discretion of the regulatory authority. Another commenter opined that the regulation or preamble should provide direction as to what level of hierarchy in the National Vegetation Classification Standard is appropriate for applications for coal mining operations. Other commenters questioned why proposed paragraph (b) required use of the National Vegetation Classification Standard when proposed paragraph (c) allowed the regulatory authority to approve other classification systems. One commenter suggested revising proposed paragraph (c) by adding “provided that the alternative classification is accepted in the scientific community suitable for that state or region in which the proposed operation is located” to reduce the potential for abuse of the discretion given here to the regulatory authority. Another commenter noted that some long-term mining operations may have existing, longstanding vegetation data systems and that it would be impractical to substitute a new system when the final rule comes into effect.

After evaluating the comments received, we decided not to adopt proposed paragraphs (b) and (c). Instead, final paragraph (b)(1) provides that the description and map of vegetation types and plant communities required under paragraph (a) must be in sufficient detail to assist in preparation of the revegetation plan under § 780.12(g) and to provide a baseline for comparison with postmining vegetation. The regulatory authority will determine which classification system best meets the requirements of paragraph (b)(1), other provisions of final § 779.19, and the revegetation requirements of §§ 780.12(g) and 816.111 through 816.116. Furthermore, it is not clear that the National Vegetation Classification Standard is readily adaptable to preparation of descriptions of vegetation types and plant communities for purposes of SMCRA. In addition, we agree with those commenters who questioned the value of proposed paragraph (b) when proposed paragraph (c) would have allowed use of other classification systems.

Proposed paragraph (d) would have required that the permit application include a discussion of the potential for reestablishing both the premining plant communities and the plant communities that would exist on the proposed permit area under conditions of natural succession. Some commenters alleged that proposed paragraph (d) would serve no purpose, at least in the Midwest where agricultural postmining land uses predominate. Because this final rule contains numerous requirements for use of native species in revegetation and for reestablishment of native plant communities, we do not agree that proposed paragraph (d) would serve no purpose. However, proposed paragraph (d) is not appropriate for § 779.19, which merely requires baseline information on premining vegetation and historical plant communities. Nor is it necessary because determination of the potential for reestablishment of native plant communities currently or formerly found in the area is an implicit element of the revegetation plan required under § 780.12(g) of this rule. Therefore, we are not adopting proposed paragraph (d) as part of this final rule.

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

Section 779.20 is intended to ensure that the permit applicant has the information needed to design the proposed mining operation in a manner that meets the fish and wildlife protection and enhancement requirements of the regulatory program. The regulatory authority also needs this information to evaluate the probable impacts of the proposed mining operation on fish, wildlife, and related environmental values for the proposed permit and adjacent areas and to determine whether the scope of the proposed fish and wildlife protection and enhancement plan is sufficient. Except as discussed below, we have adopted § 779.20 as proposed, with minor editorial revisions for clarity and consistency.

Several commenters expressed concern that changes to the fish and wildlife resource information requirements might increase the amount of time it takes to review and process permits, resulting in a need for regulatory authorities to hire additional staff. The proposed and final rules are similar to the fish and wildlife resource information requirements in previous § 780.16(a). They require very little additional information. Therefore, we do not anticipate that final § 779.20 will have a significant impact on regulatory authority resource needs.

Final Paragraph (a): General Requirements

Proposed paragraph (a), like previous § 780.16(a), provided that the permit application must include information on fish and wildlife resources for the proposed permit and adjacent areas. The Department of Justice requested that we revise this provision to clarify that the term “fish and wildlife resources” includes all species of fish, wildlife, plants and other life forms listed or proposed for listing under the Endangered Species Act of 1973, 30 U.S.C. 1531, et seq. Final § 779.20(a) includes the requested revision, which is not substantive.

Final Paragraph (b): Scope and Level of Detail

As proposed, § 779.20(b) provided that the regulatory authority would determine the scope and level of detail for this information in coordination with state and federal agencies that have responsibilities for fish and wildlife. It also specified that the scope and level Start Printed Page 93133of detail of the information must be sufficient to design the fish and wildlife protection and enhancement plan required under § 780.16. We received no comments specific to this provision. Final paragraph (b) adopts the proposed rule without change.

Final Paragraph (c): Site-Specific Resource Information Requirements

Proposed paragraph (c) sets forth requirements for site-specific fish and wildlife resource information. At the request of a federal agency, we revised proposed paragraph (c)(1), which pertains to species listed or proposed for listing under the Endangered Species Act of 1973, by replacing the phrase “fish and wildlife or plants” with “species” and the phrase “state or private” with “non-federal” to be consistent with terminology used in connection with the Endangered Species Act. The phrase “state or private” might inadvertently exclude activities of local and tribal governments and quasi-governmental agencies.

Some commenters suggested that we revise paragraph (c)(1) to require that the applicant identify cumulative impacts on federally-listed species. Final paragraph (c)(1) provides that “the site-specific resource information must include a description of the effects of future non-federal activities that are reasonably certain to occur within the proposed permit and adjacent areas.” That provision is the functional equivalent of an analysis of cumulative impacts. Therefore, no rule change is necessary. Other commenters asserted that we lack authority to require that applicants submit this information to a state regulatory authority or to require that a state regulatory authority conduct a cumulative effects analysis. According to the commenters, the Endangered Species Act only requires such an analysis for federal actions. We disagree. As discussed in the preamble for final § 773.15(j), section 7(a)(1) of the Endangered Species Act provides that “[t]he Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act.” [244] That would necessarily include using SMCRA to protect species listed or proposed for listing as threatened or endangered under the Endangered Species Act.[245] Furthermore, the description of the effects of future non-federal activities that final paragraph (c)(1) requires is necessary for the regulatory authority to ascertain compliance with final § 773.15(j).

Another commenter recommended that we delete all of proposed paragraph (c)(1), as the proposed language would place a significant burden on permit applicants, requiring them to know the affairs and plans of all private surface landowners in a given area and convey those plans as part of a permit application. We disagree and decline to delete this paragraph. This requirement to analyze the possible effects of action by private surface landowners is similar in terminology to a portion of the definition of “Cumulative Impacts” used in the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regulations implementing the Endangered Species Act [246] and therefore is a warranted and necessary element in this review. Also, because our previous regulations at 30 CFR 780.16(a)(2) included the requirement to provide site-specific resource information in each permit application, there is no additional burden on permit applicants.

Another commenter suggested that we define “reasonably certain to occur.” We do not agree. That term, which mirrors the terminology used in the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regulations implementing the Endangered Species Act.[247] The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have published an Endangered Species Consultation Handbook that explains the meaning of this phrase.[248] No additional definition is needed in this rule.

One commenter urged us to require that the application include information on habitat for species listed as threatened or endangered. Another commenter requested that the rule specifically require information about biological communities that do not contain species of special concern. According to the commenter, those communities are still of interest because they may provide habitat to species that are valuable in other ways. Final § 779.19(a)(1) requires that the permit application identify, describe, and map existing vegetation types and plant communities within the proposed permit area in a manner that is adequate to evaluate whether the vegetation provides important habitat for fish and wildlife. In addition, final § 779.20(b) provides that the regulatory authority must determine the scope and level of detail for the fish and wildlife resource information required in coordination with state and agencies with responsibilities for fish and wildlife. Also, final section 780.16 requires additional action if the information required by final § 779.20(b) indicates that the proposed permit area or the adjacent area contains species listed or proposed for listing as threatened or endangered species under the Endangered Species Act or that are designated as critical habitat. As one commenter noted, one potential resource for identifying this information is the Natural Heritage Program, a network of state programs that gather and disseminate biological information on species of conservation concern and on natural plant communities. Each state Natural Heritage Program would also be an appropriate entity to assist the regulatory authority to identify native plant communities of local or regional significance. The combination of these requirements should ensure that the site-specific resource information includes information on habitat under the circumstances described by the first commenter and in all other situations in which information on habitat is important.

A commenter requested that we include specific reference to the Natural Heritage Program throughout the final rule, and specifically within final §§ 779.20 and 783.20, when providing information about threatened, endangered, and rare species of plants and animals at the state and federal level. The commenter also suggested that evidence of any coordination with the Natural Heritage Program or other resource agencies be attached to the permit application. While we agree that coordination with each states' National Heritage Program can be an important step in obtaining information about threatened, endangered, and rare species of plants and animals, we decline to require this and any evidence of coordination with any National Heritage Program be included within the permit application. These requirements are more appropriately Start Printed Page 93134addressed on a case-by-case basis at the discretion of the regulatory authority, because each regulatory authority has the appropriate local expertise and network of resources to make these decisions. However, we do agree that the Natural Heritage Program is an excellent resource for information about threatened, endangered, and rare species of plants and animals.

A commenter requested that we define the term “endemic species” in proposed paragraph (c)(3). Another commenter recommended that we clarify that habitat for endemic species should be based on actual habitat boundaries rather than state or other jurisdictional boundaries that are less relevant from a biological perspective. Final paragraph (c)(3) does not include a definition of “endemic species” both because that term has a commonly understood meaning and because the U.S. Fish and Wildlife Service's published glossary of terms related to endangered species already defines “endemic species” as “[a] species native and confined to a certain region; generally used for species with comparatively restricted distribution.” [249] The commenter is correct that jurisdictional boundaries should not determine whether a species is endemic to the area. For example, a species with a small distribution within one state but that is widespread throughout the rest of the country would not typically be considered endemic, despite its low numbers within the state boundaries.

Proposed § 779.20(d) contained provisions regarding U.S. Fish and Wildlife Service review of the fish and wildlife resource information in the permit application. Proposed § 780.16(e) contained substantively identical provisions for U.S. Fish and Wildlife Service review of the fish and wildlife protection and enhancement plan in the permit application. This final rule consolidates proposed §§ 779.20(d) and 780.16(e) into final § 780.16(e), both to streamline the regulations and in response to a comment noting that the Service reviews baseline fish and wildlife resource information together with the fish and wildlife protection and enhancement plan, not separately. The preamble to final § 780.16(e) discusses the comments that we received on the provisions of proposed §§ 779.20(d) and 780.16(e) and how we revised the rule in response to those comments and discussions with the U.S. Fish and Wildlife Service.

Proposed § 779.20(d)(2)(iv) provided that the regulatory authority may not approve the permit application until all issues pertaining to threatened and endangered species are resolved and the regulatory authority receives written documentation from the Service that all issues have been resolved. Proposed § 780.16(e)(2)(iv) contained a substantively identical provision. The final rule consolidates both of those proposed rules into final § 780.16(b)(2) in revised form. Many commenters characterized this provision of the proposed rules as a U.S. Fish and Wildlife Service veto over the SMCRA permit. We discuss that comment in Part IV.J., above. The preamble to final § 780.16(b)(2) discusses other comments that we received on proposed §§ 779.20(d)(2)(iv) and 780.16(e)(2)(iv) and the revisions that we made in response to those comments and discussions with the U.S. Fish and Wildlife Service.

Proposed § 779.20(e) would have provided that the regulatory authority, in its discretion, may use the resource information collected under § 779.20 and information gathered from other agencies to determine whether, based on scientific principles and analyses, any stream segments, wildlife habitats, or watersheds in the proposed permit area or the adjacent area are of such exceptional environmental value that any adverse mining-related impacts must be prohibited.

We received comments both opposing and supporting proposed paragraph (e). Many commenters who supported this provision urged us to revise it to categorically prohibit mining in those areas rather than to afford discretion to the regulatory authority to do so. However, section 522 of SMCRA [250] establishes the process and criteria for categorically designating areas unsuitable for all or certain types of mining. Commenters seeking a categorical prohibition should avail themselves of the petition process provided under that section of SMCRA.

Commenters opposing proposed paragraph (e) challenged our authority under SMCRA to adopt such a provision. They also alleged that it could result in a compensable taking of mineral interests, that it provides too much power to state and federal fish and wildlife agencies, and that it could be enormously disruptive and economically costly because potential permit applicants would not have reasonable certainty as to which portions of the proposed permit area they would be allowed to mine. Other commenters noted that section 515(b)(24) of SMCRA,[251] which contains the performance standard for protection of fish and wildlife, does not include an express prohibition on mining. Instead, it 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.”

The counterargument is that section 515(b)(23) of SMCRA 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.” [252] 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.” [253]

Other commenters wanted us to define or otherwise clarify the terms, “exceptional environmental value,” “coordination between agencies, “scientific principles and analysis”, and “consultation” in proposed paragraph (e). They requested clarification on how this provision would be applied to regulatory decisions made prior to the final rule. They also sought an opportunity for further public comment on the meaning of “exceptional environmental value” and on how this provision would be applied. We also received comments criticizing the lack of a definition of “adverse impacts,” and inquiring whether this term extended to impacts that were short-term or temporary or that imposed no permanent change on biota or the ecosystem.

After evaluating the comments that we received, we decided not to adopt proposed § 779.20(e) because avoiding disturbances to habitats of unusually high value for fish and wildlife, as described in final § 779.20(c)(3), is one of the options provided in final § 816.97(f). Therefore, there is no need to further discuss or address the comments that we received on proposed § 779.20(e). While we are not adopting proposed paragraph (e), we encourage states to consider doing so under section 505 of SMCRA,[254] which specifies that any state law or regulation that “provides for more stringent land use and environmental controls and Start Printed Page 93135regulations of surface coal mining and reclamation operations than do the provisions of this Act or any regulation issued pursuant thereto shall not be construed to be inconsistent with this Act.”

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

In the proposed rule,[255] we explained the August 4, 1980 suspension of the rules in relationship to lands other than prime farmlands, why we proposed to lift the suspension of previous § 779.21, and why we replaced those provisions with language consistent with the holding in In Re Permanent Surface Mining Regulation Litigation I, Round I.[256] One commenter questioned our logic in lifting the suspension and the consistency of the proposed rule with the court's holding. As explained in the preamble to our proposed rule, this is consistent with the court's decision that section 507(b)(16) of SMCRA is a clear expression of congressional intent to require soil surveys only for prime farmlands identified by a reconnaissance inspection.[257] Consistent with that decision the final rule clarifies that soil surveys are only required when a reconnaissance inspection suggests that the land may be prime farmland. In those circumstances the permit application must include the results of the reconnaissance inspection and, when prime farmland is found to be present, the soil survey information required by § 785.17(b)(3). If prime farmlands are not identified, the court held that § 508(a)(3) did not constitute authority for our regulations to require an applicant to provide soil survey information for lands not qualifying as prime farmland. Our final rule is consistent with the decision. To begin, we rely on section 508(a)(2) of SMCRA.[258] This section of SMCRA requires 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 SMCRA shall include necessary details to demonstrate that reclamation required by the State or Federal program can be accomplished, a statement of 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. This statutory provision requires the applicant to include information about soil and foundation characteristics in each permit application, not just in those applications that contain prime farmland.[259] This information, detailed in final paragraphs (b) through (d), does not need to take the form of a requirement to conduct a soil survey unless prime farmland may be present. While it is true that the regulations do not require that soil surveys be conducted for lands that may not be prime farmland, it is also true that some soil surveys for these lands may already exist and these already-existing soil surveys would be useful to the regulatory authority in fulfilling its responsibilities under section 508(a)(2) of SMCRA. Therefore, for lands that may not be prime farmland, our final rule does not require a soil survey to be conducted, but it does require the submittal of soil survey information if it already exists.

Regarding paragraph (a), other commenters indicated that, given the predominant land use in some areas of prime farmland and the Natural Resources Conservation Service's extensive mapping, a “reconnaissance inspection” is not necessary to make a determination regarding whether prime farmland exists in the permit area. Similarly, other commenters expressed concern about the requirement for “a soils reconnaissance inspection” to determine the presence of prime farmland without further guidance regarding what the reconnaissance inspection would entail. However, paragraph (a) does not contain any new requirements regarding these issues; it merely includes and cross-references existing prime farmland regulations within § 785.17 and reiterated at § 779.21(e) of the final rule.

In paragraph (b), we require the permit applicant to include soil surveys completed by the Natural Resources Conservation Service. A commenter suggested that this information is frequently unavailable on federal, state, or tribal lands, and, in situations where such soil survey information is available, it is frequently provided as an Order 4 soil survey and is not sufficiently detailed to be useful without substantial interpolation. The commenter recommended that we allow Order 2 soil surveys to address reclamation plan needs. For non-prime farmland an applicant need only submit soil survey information that exists; therefore, if, as the commenter suggests, this soil survey information does not exist it would not be required. In the event Order 4 soil surveys are the only data set available those should be submitted; conducting an Order 2 soil survey would not be required if such a survey for the proposed permit area does not exist. The purpose of this section, and others related to establishing soil condition, is to ascertain as much information as possible about the capability and productivity of the land prior to mining in order to develop a reclamation plan that restores the premining land use capabilities.

Some commenters opined that proposed paragraph (c) is problematic. The commenter stated that relying on descriptions of soil depths taken from soil mapping completed by the Natural Resources Conservation Service is not reliable because these maps may not accurately reflect on-site conditions. Final § 816.22(a)(1)(i) requires mine operators to remove and salvage all topsoil and other soil materials. Therefore, regardless of whether or not the Natural Resources Conservation Service maps are exactly accurate is of secondary consequence because the mine operator must remove and salvage these materials as they exist at the permit site. For example, if the map indicates that a certain soil type contains eight inches of topsoil, but the on-site conditions reveal twelve inches of topsoil exist, the mine operator is required to remove and salvage all twelve inches of topsoil, not merely the eight inches indicated on the map.

Some commenters also questioned proposed paragraph (f), which affords the regulatory authority the opportunity to require whatever information it may need to determine land use capability. These commenters opined that this paragraph requires applicants to prepare the reclamation plan with no guidance regarding what is necessary to satisfy this requirement. The commenters misinterpret this regulation; it merely states the inherent authority of the regulatory authority to determine, on a case-by-case basis, what additional information is necessary to assess the land use capability. This provision is discretionary with the regulatory authority and provides a regulatory authority with the ability to use its best professional judgment to require information that may be needed for local conditions or circumstances. However, we have modified final rule § 779.21(f) to clarify that any other information “on soils” that the regulatory authority finds necessary to Start Printed Page 93136determine land use capability may be collected. Moreover, we removed the phrase “and to prepare the reclamation plan” because the regulatory authority does not prepare the reclamation plan.

A commenter requested that we require more detailed soil descriptions because, in the commenter's opinion, more detailed soil descriptions are needed to differentiate between the soil horizons (O, A, E, B, C, and R) so that they can be properly characterized and segregated. Other commenters suggested that we require the retention of physical soil core samples and photographs because mischaracterization of soil horizons could allow improper mixing of higher quality soils with poor soils. We disagree with these comments because the minimum requirements as established in our final rule are sufficient to develop adequate reclamation plans for the salvage and storage of topsoil and other soil horizons as needed to reconstruct a soil medium that will support the approved postmining land use. As discussed previously, § 779.21(f) allows the regulatory authority to require a greater level of detail, if deemed necessary, which could include the information suggested by the commenters.

Another commenter questioned the rationale of expanding the requirements for soil information, stating that the proposed rule is not supported by science. This commenter did not provide any specific information in support of the assertion that this requirement is not supported by science. Not only do we disagree with the commenter we note that all of the final rule requirements, including soil mapping and available surveys, soil depth and quality, are collectively necessary to effectively determine the premining capability and productivity of the land and to establish the soil salvage, soil substitute, and soil replacement requirements to ensure restoration of these capabilities and successful establishment of native vegetation. Moreover, these requirements are not only consistent with the Act they are essential to fulfilling the requirements of the Act.[260]

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

Commenters expressed concern that proposed paragraph (a)(2), which would require a description of the historic use of the land, contains no time limitation, is unfair and impractical, and creates an impossible standard. Similarly, commenters also noted that it was sometimes difficult to determine with precision all of the land uses within the five-year standard included in the existing regulations at 30 CFR 780.23(a) and that the longer timeframe detailed in paragraph (a)(2) would make it even more difficult. We do not intend this requirement to be unfair, impractical, or create an impossible standard, and for clarity are adding a statement to the end to (a)(2); “to the extent that this information is readily available or can be inferred from the uses of other lands in the vicinity.” In most cases, it would be sufficient for the applicant to provide historical land use information similar to that required for a Phase I Environmental Site Assessment under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).[261] Standards for these assessments have been established by ASTM International.[262] Assessments may include a review of publicly available records, aerial photos, soil surveys, deed searches, and interviews with owners, occupants, neighbors, and local government officials. Various military and government agencies began collecting aerial imagery as far back as the 1940's and 1950's. Advancements in satellite and sensor technology resulted in agencies gathering imagery from space during the 1970s and 1980s. While results will vary depending on one's geographic area of interest, most areas of the continental United States have aerial imagery coverage dating back several decades. A free, open, and commonly used repository of aerial imagery is available online through the U.S. Geological Survey portal called Earth Explorer: http://earthexplorer.usgs.gov/​. This user-friendly platform hosts a plethora of aerial imagery as well as satellite imagery. Based on the material available for the site and region, the regulatory authority should easily be able to determine whether the statement of the historical uses of the area is reasonable.

A regulatory authority commenter objected to the placement of the phrase “capability of the land prior to any mining” in proposed rule § 779.22(b)(1). Although this phrase is taken directly from section 508 of SMCRA,[263] the commenter expressed concern that “prior to any” mining is not sufficiently defined. Further, the commenter opines that it will be problematic to determine the capability of land for areas such as Appalachia where coal mining has existed for more than 150 years. This commenter also questioned whether the purpose of the proposed rule is to require that vegetative communities and land uses are restored to what existed prior to any mining—such as the vegetative communities that existed in 1930. The proposed rule at §§ 779.22(b)(2)(i) and 783.22(b)(2)(i) established requirements for a narrative analysis of the productivity of the proposed permit area . . . as determined by actual yield data or yield estimates . . . ”. One commenter on this section expressed concern that we were making a substantive change by adding the word “actual” to the requirement for yield data regarding the average yield of food, fiber, forage or wood products obtained on the land before mining. Another commenter objected to proposed paragraph (b)(2) requiring the presentation of productivity data expressed as average yield of food, fiber, forage, or wood products obtained under “high levels of management” because this allegedly requires coal mining operators to speculate about industries and commercial enterprises in which they have no expertise. We disagree. Our previous regulations at § 780.23(a)(2)(ii) required the applicant to determine productivity by yield data or estimates for similar sites based on current data from the U.S. Department of Agriculture, state agricultural universities, or appropriate state natural resource or agricultural agencies. Likewise, our previous regulations at §§ 780.23(a)(2)(ii) and 784.15(a)(2)(ii) included a requirement for productivity information to be expressed “under higher levels of management”, thus, this is not a new requirement. While our previous regulations do not use the word “actual”, inclusion of the word “actual” in the revised regulations merely emphasizes the distinction between actual data and estimated data and imposes no new requirements. In response to commenters' concerns about potential land uses and determining premining capability, we included a more thorough discussion of these issues in the preamble to final § 780.24.

We received many comments regarding the proposed requirement at § 779.22(b)(3), which would have required the permit applicant to provide a narrative analysis of productivity of the proposed permit area for fish and wildlife before mining. Many commenters supported this requirement, expressing that productivity information was essential to establishing a baseline on which impacts to fish and wildlife can be Start Printed Page 93137evaluated and for establishing a reference for reclamation of the area to premining conditions. Other commenters alleged that the requirement was unclear on the level and scope the analysis must entail and what metrics and historical documentation would be necessary. After consideration of the comments both supportive and critical of this provision, we have determined that this requirement is overly burdensome due to the survey effort that would be required to document productivity. As expressed in the preamble for the proposed rule, the fish and wildlife information required by proposed paragraph (b)(3) would have assisted the regulatory authority in evaluating the environmental impacts of the proposed operation and in determining the fish and wildlife protection and enhancement measures that may be appropriate. However, these productivity needs can be adequately met by the requirements at §§ 779.20(a)-(c) and 783.20(a) through (c) to include general and site-specific resource information on fish and wildlife resources in the permit application to a level of detail determined by the regulatory authority in coordination with state and federal agencies with responsibilities for fish and wildlife. Therefore, we have eliminated this fish and wildlife productivity narrative from the final rule.

Paragraph (c) allows the regulatory authority the flexibility to require other information deemed necessary to determine the condition, capability, and productivity of the land within the proposed permit area. In the preamble, we noted that this additional information may include data about a site's carbon absorption and storage capability. Commenters claimed that it is not within the purview of SMCRA authority to evaluate the carbon footprint of the proposed operation. We disagree. SMCRA clearly allows regulatory authorities to consider the effects of the proposed operation on the condition of the land, which includes the land's capability prior to any mining.[264] The capability of the land within the proposed permit area could include the land's ability to absorb and store greenhouse gases. As indicated in our Draft and final EIS, greenhouse gases are sequestered and stored in soils and vegetative biomass, which reduces the total amount of carbon present in the atmosphere and mitigates the adverse effects of climate change. Mining may remove significant amounts of forest cover, which would reduce the capability of the land to sequester and store carbon. The regulatory authority may want to factor this information into decisions concerning an applicants proposed changes in land use, or revegetation, including the provisions at final 780.16(d)(3) regarding mandatory enhancement measures to address losses of mature native forests.

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

We proposed to consolidate existing §§ 779.24 and 779.25 into § 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.[265] Except as discussed below, we are adopting, as proposed, §§ 779.24 and the counterpart at 783.24, related to underground mining.

Section 779, pertains to the minimum requirements for information on environmental resources and conditions for surface coal mining applications. In § 779.24(a)(2), the text mistakenly referred to underground mining activities when we meant surface mining activities; hence, we replaced the word “underground” with the word “surface” in the final rule text.

Several commenters requested we revise paragraph (a)(9) to include that streams and wetlands within the jurisdiction of the Clean Water Act be field delineated, documented, mapped, and then field confirmed by the U.S. Army Corps of Engineers. We are not adopting this recommendation because we cannot place responsibilities on the U.S. Army Corps of Engineers through SMCRA rulemaking. However, as revised, our final rule at § 773.5(a) requires that each SMCRA regulatory program provide for coordination of review of permit applications and issuance of permits for surface coal mining operations with the federal and state agencies responsible for permitting and related actions under, among other laws, the Clean Water Act. This provision will ensure that the U.S. Army Corps of Engineers has an opportunity to participate in the SMCRA permitting process to the degree that it deems appropriate.

Commenters expressed concern about the confidentiality of information provided to the regulatory authority within proposed paragraph (a)(11). In response to these comments, we revised § 779.24(a)(11), to ensure that this information is kept confidential when necessary for safety and security reasons and to protect the integrity of the public water supply.

Another commenter requested clarity about the extent of “water supplies” that must be mapped as required in this section. As stated in proposed paragraph (a)(11), any public water supply and associated wellhead protection zone located within one-half mile, measured horizontally, of the proposed permit area must be included in maps and, when appropriate, in plans and cross sections included in the permit application. This section of the rule does not intend for the origin of the source waters to be included, but rather the location of the public water supply itself. The scale of the map must be sufficient to include all pertinent features as required in final rule §  779.24.

Proposed paragraph (a)(13) requires that 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 be shown on a map or cross-section and included in the permit application. In the final rule, we have revised the phrase “hydrologically connected to the proposed permit area” to “hydrologically connected to the site of the proposed operation” for consistency with final rule § 783.24(a)(13), which describes what maps, plans, and cross-sections the operator must submit with a permit application for an underground mine. The type of information required in this section aids the applicant in preparing the determination of the probable hydrologic consequences of mining required by section 507(b)(11) of SMCRA [266] and the regulatory authority in preparing the cumulative hydrologic impact assessment required by the same provision of the Act and by section 510(b)(3) of SMCRA.[267] Several commenters, including regulatory authorities and industry commenters, opined that paragraph (a)(13) did not provide any benefit and would result in increased costs. We disagree. The locations of any of these types of discharges are necessary for the applicant to prepare the determination of the probable hydrologic consequences of mining required by section 507(b)(11) of SMCRA,[268] and for the regulatory authority to prepare the cumulative hydrologic impact Start Printed Page 93138assessment required by the same provision of the Act and by section 510(b)(3) of SMCRA.[269] Another commenter was concerned that the requirement in paragraph (a)(13) may present private property access issues for permit applicants. We acknowledge that lack of landowner consent may restrict data collection; however, we anticipate that the applicant will make every effort to obtain necessary access from private property owners. We also anticipate that the applicant will coordinate with the regulatory authority to rectify this issue, and, at the very least, document the inability to access the private property because of a refusal by the property owner to provide permission.

Proposed paragraphs (a)(18) and (20) included a requirement to submit geographic coordinates of test borings, core samplings, and monitoring stations. One commenter stated that these requirements would require field surveying which would add significant costs to the application process and that coordinates derived through the use of appropriate software could provide greater accuracy than hand-held field devices. Proposed paragraphs (a)(18) and (20) do not specify the means that must be used to obtain the geographic coordinates, only that the coordinates need to be included in the permit application. The use of hand-held global positioning system field devices is acceptable, but the use of appropriate geospatial software and publicly available imagery is also acceptable and provides accurate data. We have not modified the final rule in response to this comment.

Proposed paragraph (a)(19) expands upon the requirement in existing section 779.25(a)(6), which requires maps showing the location and extent of subsurface water, if encountered. The expanded application requirements of the proposed rule would also require all mining applications for both surface and underground mines to identify aquifers; this requirement is currently only applicable to underground mines under existing § 783.25(a)(6). We also proposed 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. In addition, proposed paragraph (a)(19) includes a requirement for the estimated elevation of the water table required by section 507(b)(14) of SMCRA.[270] Two commenters stated that the requirement in paragraph (a)(19) to provide the areal and vertical extent of aquifers on a map provided no benefit and would result in increased costs. Maps showing the areal and vertical extent of aquifers are needed to accurately assess the extent of groundwater within the proposed permit and adjacent areas so that the regulatory authority can conduct an adequate assessment of the hydrology so that it can ensure the proposed coal mining operation will minimize disturbance of the hydrologic balance inside the permit area and adjacent areas and prevent material damage to the hydrologic balance outside the permit area. Another commenter stated that it would prefer the option to use maps instead of cross-sections to show the data required by paragraph (a)(19). In consideration of this comment, we agree that it is prudent to allow the applicant the flexibility, in consultation with the regulatory authority, to select the most appropriate means of supplying this information in the permit application. Therefore, paragraph (19) has been revised to allow for the information to be provided on appropriately-scaled cross-sections or maps, in a narrative, or a combination of these methods.

To provide clarity, we further revised paragraph (a)(19) of the final rule to replace “portrayal of seasonal variations” with “maximum and minimum variations.” The modification clarifies it is the range in variations in hydraulic head that is needed to provide meaningful information relative to individual water level measurements. We also omitted the word “estimated” concerning the elevation of the water table in the aquifers to clarify that the elevations must be based on groundwater data collected from the site rather than on an estimation of the levels based on other sources. Finally, we revised “location and extent of subsurface water, if encountered” to “location and extent of any subsurface water encountered” to clarify that the intent is to record the presence of any subsurface water encountered within the proposed permit and adjacent areas.

In paragraph (a)(21), we proposed to add a requirement that any coal or rider seams located above the coal seam to be mined also be identified in this section. However, this requirement was removed from the final rule due to a redundancy with requirements in § 780.19(e)(3). Likewise, the requirement in paragraph (a)(23) to identify the location and extent of known workings of underground mines underlying the proposed permit and adjacent areas are removed in the final rule due to redundancy with § 783.24(a)(23).

In paragraph (a)(27), we proposed 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. A few commenters objected to the addition of this requirement. These commenters pointed to the difficulty in obtaining the information as it is often proprietary information or would otherwise be time consuming to acquire. The commenters also noted that, at least in western states, this type of drilling generally occurs in zones well below the depth of coal mines and potable water aquifers. Some commenters suggested that the regulatory authority should have the flexibility in determining if this information is necessary. We agree to an extent. We have removed any specific references to directional or horizontal drilling as this requirement applies to all oil and gas wells regardless of whether they are conventional or unconventional. In addition, we included a requirement that the lateral extent of the well bores must be provided unless that information is confidential under state law. However, as required in previous § 779.25(a)(10), some information related to oil and gas wells is necessary for both the applicant and the regulatory authority to fully evaluate the impacts of the potential mining and reclamation activities with regard to the existence of these types of wells within the proposed and adjacent areas. Mining and reclamation activities must be planned appropriately to accommodate the presence of these structures; therefore, the locations of the wells, and in many instances the depths, must be known prior to the development of the mining plan. In recognition that the well completion information may be confidential, the final rule includes the qualifier, “if available,” relative to the depth information and we have required the lateral extent of the well bores to be provided unless that information is confidential under state law.

With regard to paragraph (c)—the new paragraph we proposed related to digital submittal of information—we invited comment on whether the digital format option should be mandatory to facilitate review by both the public and the regulatory authority instead of allowing the regulatory authority discretion in determining the format that the operator is required to submit their data. One commenter suggested that we require all regulatory authorities to post online all mine permit applications and associated Start Printed Page 93139files. Several commenters were in favor of making this requirement mandatory; however, another commenter suggested that the final rule should not require the digital format option for all materials submitted to regulatory authorities because there are instances where published maps are utilized and metadata may not be available. We agree with the commenter's rationale; thus, there were no changes made to paragraph (c) in the final rule.

Previous § 779.25: Cross Sections, Maps, and Plans

We have removed and reserved previous § 779.25 for the reasons discussed in the final rule.[271]

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

Section 780.1: What does this part do?

With the exception of altering the title of this section for clarity, we are finalizing section 780.1 as proposed. We received no comments on this section.

Section 780.2: What is the objective of this part?

We are finalizing § 780.2 as proposed. We received no comments on this section.

Section 780.4: What responsibilities do I and government agencies have under this part?

We are finalizing § 780.4 as proposed. We received no comments on this section.

Section 780.10: Information Collection

Section 780.10 pertains to compliance with the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. We are adding contact information for persons who wish to comment on these aspects of part 780.

Section 780.11: What must I include in the description of my proposed operations?

We are finalizing § 780.11 as proposed. We received no comments on this section.

Section 780.12: What must the reclamation plan include?

Section 780.12 sets forth requirements for the reclamation plan which must be included within a permit application. Several commenters stated that the new requirements for describing, in detail and in writing, the plans for all activities, including planned animal husbandry practices, reclamation timetables, and plans for minimizing the establishment and spread of invasive species, were too onerous for the applicant to provide, too difficult to establish with any accuracy before a mining operation begins, and too lengthy for the regulatory authority to analyze and approve. We disagree. These new permit description requirements are necessary to fulfill statutory requirements, particularly the requirement to use “the best technology currently available” to “minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable” within section 515(b)(24) of SMCRA.[272] The requirements of this section, including the requirement that an applicant provide a timetable for reclamation and other activities, will also ensure that these activities have been given sufficient consideration before a permit is issued. These additional descriptions and timetables are realistic and achievable and will allow the regulatory authority to fully analyze the permit and the operators' efforts to comply with SMCRA.

One commenter stated that the whole section implies that these programs have not been successful in returning lands to approximate original contour and in repairing lands and waters damaged by pre-SMCRA mining. We disagree. Reclamation has been successfully accomplished in many instances. However, reclamation techniques can be improved as the regulatory authorities, mine operators, and the scientific community learns more about successful reclamation. For instance, the Forestry Reclamation Approach of planting shrubs and trees in soil that is not compacted has thoroughly changed how this industry returns forests to mine sites. Additionally, eliminating or limiting the use of non-native, invasive grasses has improved native reclamation in arid areas. The rule that we are adopting today promotes the use of these and other best practices in the field of reclamation and will benefit native species, communities, and ecosystems both within and beyond the permitted site.

Final Paragraph (b): Reclamation Timetable

Section 780.12(b) contains a requirement that applicants submit a timetable for reclamation activities which constitute major steps in the reclamation process, including, but not limited to: The planting of all vegetation in accordance with the revegetation plan approved in the permit (including establishing appropriate vegetation bordering perennial, intermittent, and ephemeral streams); demonstrating revegetation success and the restoration of the ecological function of all reconstructed perennial and intermittent stream segment; and applying for each phase of bond release under section 800.42.

Several commenters expressed concern that these new requirements will place operators in a position to fail or force them into noncompliance, if, despite their best efforts, they do not meet the proposed timetables for demonstration of revegetation success, restoration of the ecological function of all reconstructed perennial and intermittent stream segments, or application for each phase of bond release. In addition, these commenters claim that establishing a timetable for completion of these activities, including the return of ecological function to streams, is unrealistic and that these new requirements would remove the discretion from regulatory authorities to require items they determine are important on a case-by-case basis. We disagree. The current rules already require “a detailed timetable for the completion of each major step in the reclamation plan” within § 780.18(b)(1). This section now lists the major steps that, at a minimum, must be included in the timetable. The rule provides the regulatory authority with flexibility to require additional steps at its discretion. Moreover, these minimum standards help implement various provisions of SMCRA including, but not limited to: section 507(d) of SMCRA, which provides that “[e]ach applicant for a permit shall be required to submit to the regulatory authority as part of the permit application a reclamation plan which shall meet the requirements of this Act”; [273] section 508(a)(4), which requires “a detailed description of how the proposed postmining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use”; [274] section 508(a)(7), which requires a detailed, estimated timetable for the accomplishment of each major step in the reclamation plan”; [275] and section 515(b)(16), which requires that mining operations “insure that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable with Start Printed Page 93140the surface coal mining operations.[276] Additionally, permit documents, such as reclamation plans, are allowed to be updated, and frequently are. Reclamation schedules can be revised as needed during the course of mining as long as the regulatory authority finds the adjustment acceptable under section 511(a) of SMCRA.[277] This process should protect operators in situations where, despite their best efforts, they cannot meet the original reclamation schedule. No changes were made as a result of these comments.

We made changes to paragraphs (b)(3), (b)(5), and (b)(7) to clarify that establishment of the surface drainage pattern and stream-channel configuration; the planting of appropriate vegetation along the banks of perennial, intermittent, and ephemeral streams; and the restoration of the “form” of all perennial and intermittent stream segments are major steps which must be included in the reclamation plan. As proposed, paragraph (b)(3) added to the list of milestones in the reclamation timetable a requirement for establishing “[r]estoration of the form of all perennial and intermittent stream segments through which you mine, either in their original location or as permanent stream-channel diversions.” The requirement described at proposed paragraph (b)(5) was, “planting,” and proposed paragraph (b)(7) provided for the “[r]estoration of ecological function of all reconstructed perennial and intermittent stream segments either in their original location or as permanent stream channel diversions.” As discussed in more detail below, these changes were made in order to clarify the previous regulation at § 780.18(b)(1) by identifying these requirements as “major steps in the reclamation process” and to conform § 780.12(b) of the proposed rule to the proposed rule at §§ 780.28 and 816.57, which related to activities, in, through, or adjacent to streams and the restoration of ecological function, and to proposed rule §§ 816.111 and 816.116, which related to revegetation. It is necessary to document these milestones to ensure that successful reclamation is accomplished and to provide the regulatory authority with assurance that these activities have been given sufficient consideration. Moreover, as previously discussed, the inclusion in the reclamation plan of a “detailed estimated timetable for the accomplishment of each major step in the reclamation plan” is consistent with section 508(a)(7) of SMCRA.[278]

Several commenters objected to the inclusion of proposed paragraphs (b)(3) and (b)(7), deeming them unnecessary but not providing justification for this assertion. We disagree. As discussed throughout this preamble and specifically within §§ 780.28, 816.56, and 816.57, stream reconstruction is essential to achieving reclamation. Moreover, section 508(a)(13) of SMCRA specifically requires “a detailed description of the measures to be taken during the mining and reclamation process to assure the protection of . . . the quality of surface and ground water systems. . . .” [279] Adding the requirements in paragraphs (b)(3) and (b)(7) will ensure that both the regulatory authority and industry are mindful of the importance of these measures and carefully plan for their appropriate implementation. To ensure consistency with final rule §§ 780.28, 816.56, and 816.57, we have revised paragraph (b)(3).

This modification reflects the different requirements for restoration of “form” of perennial and intermittent streams that must occur prior to Phase I bond release, discussed in the preamble of §§ 800.42(b) and 816.57(e) and the postmining surface drainage pattern and stream-channel configuration requirements related to ephemeral streams discussed in §§ 800.42(b) and 816.56(b), that also must occur prior to Phase I bond release.

We have also modified paragraph (b)(5). As proposed, this paragraph merely required “planting.” Some commenters alleged that this was nebulous. We agree with these commenters and have revised the paragraph to clarify that the establishment of appropriate vegetation includes the establishment of 100-foot wide, streamside, vegetative corridors when required by § 816.56(c), which relates to ephemeral streams, and § 816.57(d), which relates to perennial and intermittent streams and to clarify that the reclamation plan must include a timetable for the planting of all vegetation including vegetation along the banks of streams. Furthermore, this requirement, as revised, complements the requirements of § 800.42(c), which relates to Phase II bond release.

We also modified proposed (b)(7) for clarity and consistency with final rule §§ 816.57(g) and 800.42, which relate to the requirements and timing of achieving restoration of ecological function of all reconstructed perennial and intermittent stream segments. At paragraph § 780.12(b)(7), we have clarified that applicants must include as part of their timetable a “demonstration” that restoration of ecological function will be achieved. This is a change from the proposed rule, which required “restoration of the ecological function,” and could have been interpreted as referring to the performance of reclamation work rather than to the time when that work must be completed. Actual restoration, as required in the performance standard of § 816.57(g), must occur prior to Phase III bond release. Our intent here is that the timetable establishes a point at which the permittee must demonstrate that ecological function has been restored.

Several commenters requested that we require a qualified biologist or ecologist to provide written attestation to any stream restoration plans and any bond release that includes a restored stream. We did not modify the final rule in response to these comments. Our final rule incorporates sufficient scientific expertise and success standards. For instance, final rule § 780.12(g)(6) now includes the requirement that a qualified, experienced biologist, soil scientist, forester, or agronomist must prepare or approve the revegetation plan, which includes the vegetation found within the streamside vegetative corridor. Similarly, all reclamation plans described within final § 780.13(b) must be prepared by, or under the direction of, and certified by a qualified registered professional engineer, a professional geologist, or, in any state that authorizes land surveyors to prepare and certify maps, plans, and cross-sections, a qualified registered professional land surveyor, with assistance from experts in related fields such as landscape architecture. These requirements ensure the use of experts in establishing the plans for reclamation. Within §§ 816.111(b) and 817.111(b), we require these plans to be followed, and within §§ 816.116(d) and 817.116(d), we require a scientifically derived success standard for all revegetation. In addition, regulatory authorities have the expertise and protocols necessary to analyze permit documents and bond release evidence, including those in place within §§ 780.12(b) and 800.42(b)(4). Therefore, this final rule incorporates sufficient scientific expertise and success standards and requiring a qualified biologist or ecologist to provide written attestation of any stream restoration plans and any bond release is not Start Printed Page 93141warranted. We have not incorporated this into the final rule.

As proposed, § 780.12(b)(7) added a requirement to demonstrate restoration of ecological function of all reconstructed perennial and intermittent streams to the list of major steps in the reclamation process. This is consistent with final paragraph (b) that requires each permit application to include a detailed timetable for completion of each major step in the reclamation process. Several commenters opposed the addition of proposed paragraph (b)(7) because they thought it was redundant of the permit or other authorization required under section 404 of the Clean Water Act.[280] We disagree and are retaining paragraph (b)(7). The stream restoration requirements in our final rule share elements in common with requirements under section 404 of the Clean Water Act, but they are not substantively identical.

Final Paragraph (c): Reclamation Cost Estimate

Commenters alleged that by only requiring the reclamation to include the standardized construction cost estimation methods and equipment cost guides, the proposed rule did not adequately address all the factors and costs involved in completing reclamation. Many of these commenters use actual cost methods which take in more local factors, conditions, and circumstances. After consideration of this comment, we have added language to the final rule to allow applicants to use “up-to-date actual contracting costs incurred by the regulatory authority for similar activities” in lieu of more broad-based standardized construction costs.

A commenter also questioned the lack of definitions of “direct” and “indirect” costs. We do not believe that “direct and indirect” costs need to be defined within the regulatory text because they are relatively common terms. Another commenter stated that indirect costs should not be included as they are irrelevant to the cost of reclamation and the calculation of bonds. Indirect cost amounts are relevant to bond calculations, as those costs are related to administration and overhead. In the event that the regulatory authority must forfeit bonds for the purpose of carrying out reclamation plans in lieu of the mine operator, costs of a third-party contractor to implement the plan, including overhead cost and profit must be included. Therefore, we determine that the inclusion of indirect costs is essential to an adequate bond calculation. We have made no changes based on these comments.

Final Paragraph (d): Backfilling and Grading Plan

This section of the final rule adds greater specificity to the backfilling and grading plan, requiring a description of how the operator will compact spoil to reduce infiltration, minimize leaching and discharges of parameters of concern, limit the compaction of topsoil and soil materials in the root zone to the minimum necessary to achieve stability, and identify measures that will be used to alleviate soil compaction if necessary. The final rule also requires, if acid-forming and toxic-forming materials are present, a description of how the operator will handle these materials to protect groundwater and surface water in accordance with § 816.38 of this chapter.

Some commenters argued that implementation of the Forestry Reclamation Approach by itself would not reduce elevated conductivity levels resulting from mountaintop removal mining operations to the point at which those levels would no longer damage aquatic life. We acknowledge that the comment is correct. However, as discussed in the preamble to the proposed rule, there is evidence that the use of the Forestry Reclamation Approach will reduce levels of conductivity progressively over time.[281] In addition, our final rule includes other measures to address conductivity. The final rule includes a definition of “material damage to the hydrologic balance outside the permit area”, in § 701.5; requires baseline information on conductivity in § 780.19, requires that the backfilling and grading plan describe in detail how spoil will be compacted to reduce infiltration and minimize leaching in § 780.12(d)(2)(i); requires the elimination of durable rock fills in § 816.71(g); and requires that excess spoil be placed in a manner that will minimize adverse effects of leachate and runoff on groundwater and surface water, including aquatic life in § 816.71(a)(1)).

Proposed paragraph (d)(1) included a sentence stating, “You must limit compaction to the minimum necessary to achieve stability requirements unless additional compaction is needed to reduce infiltration to minimize leaching and discharges of parameters of concern.” However, we have concluded that this sentence does not properly reflect our intent, which was to minimize compaction of soil materials in the root zone, while still requiring compaction of spoil in order to minimize conductivity levels in leachate and runoff from the mine. Therefore, the final rule replaces that sentence with paragraphs (d)(2)(i) and (ii). Paragraph (d)(2)(i) requires that the backfilling and grading plan describe in detail how spoil will be compacted in order to reduce infiltration to minimize leaching and discharges of parameters of concern. Paragraph (d)(2)(ii) requires that the backfilling and grading plan limit compaction of topsoil and soil materials in the root zone to the minimum extent necessary to achieve stability. The plan also must identify measures that the permittee will use to alleviate soil compaction if it nonetheless occurs. These changes better reflect our intent to minimize both compaction and conductivity levels.

Some commenters alleged that there was an apparent contradiction between our emphasis on using compaction to ensure stability and reduce leaching and our attempts to limit compaction that impedes revegetation. Moreover, some commenters opined that our requirements related to compaction are impractical as proposed. These commenters stated that our standards for limiting compaction are not supported by scientific evidence and will require a significant engineering analysis by the regulatory authority to determine what the compaction standard should be on various portions of the permit. Additionally, one commenter in particular stated that the language in this paragraph requiring that compaction of backfills be minimized, except as needed to reduce infiltration and minimize leaching and discharges, is inconsistent with the requirements of § 816.38(a), which requires compaction to prevent acid-forming materials from leaching into the soil. In response to these comments, we have made changes to the final rule at § 780.12(d)(1) and (2) to clarify when compaction must be used to minimize infiltration, leaching, and related discharges and when compaction is problematic because it impedes revegetation. However, we disagree with the commenters who stated that the requirement to minimize compaction within the root zone is not supported by scientific evidence. In reclamation projects across the nation, limiting compaction resulted in increased reclamation success (e.g., Forestry Start Printed Page 93142Reclamation Approach,[282] Extreme Surface Roughening),[283] and supporting evidence for this can be found on SMCRA permitted sites as well as within performance reports, annual reports, and other publications authored by us and other SMCRA regulatory authorities.

One commenter alleged that in § 780.12(d) we did not provide a rationale for our proposal to increase requirements for backfilling and grading plans. The commenter alleged that we did not cite specific problems or deficiencies with state regulatory programs under the existing language. Specifically, the commenter alleged that we inappropriately added a performance standard requiring that applicants limit compaction to the minimum necessary to achieve stability. The purpose of these provisions is to address the widespread and well known water quality issues that have been traced to mineralization of infiltrated water, the well-known stream health deficiencies that have been traced to inadequate forest cover of streams in previously forested areas,[284 285] and the associated leaching of minerals into water that will be discharged offsite. These provisions will ensure that operators make effective plans to minimize compaction of spoil near the surface of the fill and to facilitate the establishment of vegetation in accordance with the reclamation plan. Revegetation contributes to the enhancement of onsite and offsite streams. The commenter is correct that we do not cite specific problems or deficiencies with the implementation of state regulatory programs in order to justify these changes to our regulations. Our inspections and other oversight activities in primacy states, including the annual evaluation reports, focus on the success of state regulatory authorities in achieving compliance with the approved regulatory program for the state. They do not identify or discuss situations in which the existing regulations provide inadequate protection. The provisions of this rule will address adverse impacts that historically have been allowed to occur under the existing regulations and that have not captured by the annual evaluation reports or other oversight activities. We do not agree with the commenter's assumption that this requirement constitutes a performance standard. Rather, it is a permitting requirement that helps in ensuring that the adequacy and effectiveness of proposed backfilling and grading plans.

Another commenter alleged that the requirement to limit compaction to the minimum extent necessary to achieve stability was ambiguous and, as a result, it would be difficult for the regulatory authority to evaluate and monitor compliance in the field due to contradictory compaction requirements. We recognize that permit requirements about under-compaction and over-compaction were combined in the proposed rule, possibly leading to confusion. For clarity, they have been separated into paragraphs (d)(2)(i) and (d)(2)(ii) in the final rule.

Commenters asserted that the submission of contour maps in paragraph (d)(1) as part of the backfilling and grading plan is of limited use and would need to be continually adjusted to reflect changes in market conditions, in geology, or in other on-site factors. These commenters allege that cross-sections are a better tool for making adjustments to the final surface configuration, including drainage patterns, compared to typical cross-sections, which the commenters claim, have worked best. We are not making any changes to the final rule in response to these comments. Compliance with goals of protecting streams and achieving the approximate original contour can best be judged through the use of contour maps, which offer more detail than a two dimensional cross-section alone. While not every change in a reclamation plan would require a new contour map, at a certain point, using only cross sections to document revised reclamation plans could cause both regulatory authorities and operators to miss potentially significant changes in the configuration of the reclaimed land's surface, changes that, cumulatively or individually, could significantly impact the achievement of approximate original contour and the restoration of streams. As an example, poorly located two dimensional cross-sections could mask problems with the location and shape of the streams that are supposed to be restored, a problem that would not occur with a three dimensional contour map. Regulatory authorities need to use the best tool for determining whether streams are being appropriately restored to form and whether approximate original contour is being addressed as changes are made to the approved reclamation plan. Contour maps are essential to making those determinations. However, we do not allege that cross-sections are unnecessary. Contour maps and cross sections are complementary tools and regulators should use both to evaluate changes to reclamation plans and to monitor compliance.

Final Paragraph (e)(1): Soil Handling Plan—General Requirements

We proposed in paragraph (e)(1)(i) to require that the soil handling plan include a schedule for removal, storage, and redistribution of topsoil, subsoil or other materials including the use of organic matter. Numerous commenters weighed in on aspects of this proposed requirement. Several commenters stated that leaving certain organic materials, such as duff and root wads, in replaced topsoil is not beneficial for agricultural lands and may result in difficulty establishing the vegetation and plant crops that are necessary to prove productivity for bond release. Other commenters expressed concern that the use of organic material could elevate total suspended solids and total dissolved solids, slow reclamation and revegetation, and disrupt surface owner priorities and postmining land use plans. Still other commenters claimed that the proposed rule did not allow regulatory authorities the flexibility to waive these requirements. We agree with the commenters that it would be counterproductive to mandate the use of organic materials on land where those materials would interfere with the success of the approved postmining land use. Instead of making changes to this section, however, we have revised § 816.22(f) to incorporate flexibility into the performance standards related to the salvage, storage, and redistribution of organic material. Specifically, the language we added to § 816.22(f)(3) clarifies that the use of organic materials in certain agricultural areas is not required. Because the use of organic materials in reclamation substantially outweighs the disadvantages, however, we have not made revisions to other regulations that govern the use of these materials.

Another commenter alleges that the preamble to the proposed rule contains conflicting statements. The commenter alleges that in the discussion of organic matter we state that these materials are necessary to establish pre-existing plant species to restore land use, but this is in conflict with our statement that vegetative cover has nothing to do with land use capability. The commenter misinterprets the proposed rule preamble discussion because there is no Start Printed Page 93143statement that the use of organic material is necessary to restore land use capability, either by itself or to promote the revegetation of pre-existing plant species. We conclude that the commenter erred by incorrectly referencing our proposed preamble discussion at paragraph (e)(1)(ii), where we discussed the salvage and distribution of soil necessary to restore land use capability, with the proposed preamble discussion of organic matter found at paragraph (e)(1)(i). Within the preamble about proposed paragraph (e)(1)(i) we discussed premining land use capability, but did not specifically refer to the use of organic materials as the commenter alleges.

One commenter opined that requiring storage and redistribution of organic matter exceeds our authority because, according to the commenter, SMCRA limits our authority to the removal and replacement of topsoil. We disagree. As we explained in the preamble to our proposed rule,[286] the use of organic matter assists in satisfying the requirement of section 515(b)(19) of SMCRA [287] to establish a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area; therefore, this requirement is fully within our authority. Organic matter contributes to enhancing postmining land use capability, enhances revegetation diversity, and aids in establishing permanent vegetative ground cover of the same seasonal variety native to the area as required for the postmining land use. However, as discussed in more detail throughout this preamble, the distribution of organic matter is not required when it conflicts with certain postmining land uses.

Regarding the proposed requirement to salvage topsoil and organic materials, we received comments asserting that topsoil is often too thin to salvage. Other commenters stated that because thin topsoil is often closely integrated with organic matter, it would be difficult to separate thin topsoil from organic matter. We also received comments alleging that handling of organic materials as prescribed will significantly increase the cost of reclamation due to increased hauling and storage costs. Other commenters supported the salvage of all topsoil and use of organic matter.

Historically, organic matter has almost universally been either burned, which adds to air pollution and the release of greenhouse gases, or buried. In either case, the organic matter is not available to enhance reclamation of mine sites even though postmining soil environments are often highly deficient in organic matter.[288] Moreover, organic matter serves as a seed bank for the reestablishment of native plants that would otherwise be lost if that material burned or buried. While we recognize that requiring the salvage of all soil, topsoil plus subsoil and organic materials, will increase costs over spoiling these materials, we are finalizing this rule because the salvage of topsoil and organic materials is key to revegetation success, the establishment of most postmining land uses, and the restoration of premining capability. However, in recognition of limited circumstances under which it would not be practical to separate organics from topsoil, final rule §§ 780.12(e) and 816.22(f), when read in conjunction, allow organics and topsoil to be salvaged together, when appropriate. This should make the salvage of even thin topsoil more cost effective compared to separating topsoil from organic materials, and it will be more beneficial than spoiling both materials, as frequently has been done.

Some commenters discussed potential unintended consequences of the proposal to require salvage and storage of organic materials. In general, the commenters state these requirements are too prescriptive and create more problems than they resolve. More specifically, several commenters contended that this requirement would lead to additional transportation and storage of organics. Some commenters contended that the need for extra storage acres appeared to be at cross-purposes with one of the purposes of the proposed rule—to minimize surface disturbance when possible. Other commenters expressed concern that saving organic material in steep slope areas is challenging and may be an unsafe practice which may put workers at risk. Commenters also argued that the regulatory authorities should have discretion to determine what is best for these materials, given the terrain.

If it is feasible to mine in steep sloped areas, operators should also be capable of safely excavating and salvaging these materials. While we recognize that the handling of organic matter has some potential for requiring some additional surface disturbance, as previously cited, the benefit gained by utilizing organic matter as part of reclamation far outweighs negative impacts associated with disturbing additional acres. Because of these benefits, we are retaining the requirement to salvage, store, and redistribute the organic material. We added language to the final rule to ensure that the requirements which govern the placement of organic matter do not conflict with certain agricultural or other postmining land uses. Additionally, in locations where significant populations of invasive plant species are documented, those organic materials may be buried, but not burned, as provided for in §§ 816.22(f)(3)(iii) and 816.22(f)(4).

We proposed to require that three soil horizons, topsoil, B horizon, and C horizon, be removed, segregated, stockpiled, and redistributed to achieve the optimal rooting depth as a final growing medium. We received many comments on this proposal. Several commenters argued that this requirement would place an unnecessary burden on state regulatory authorities because the regulatory authorities would expend more time reviewing the soil handling plan and significantly more time inspecting the operation to ensure the proper removal and replacement of all three horizons. One commenter asserted that successful soil restoration has been achieved in instances where soil horizons were mixed. Another commenter referenced circumstances where some soil horizons, including some topsoil, can demonstrate characteristics adverse to soil reconstruction and reestablishing vegetation. Specifically, the commenter referenced soils with unfavorable sodium content and some topsoil that is salt-affected, and advocated that these should not be salvaged or spread again. Another commenter noted that this portion of the proposed rule appeared to be based upon achieving reforestation on Appalachian mines and may not be appropriate in other parts of the country. Some commenters opposed proposed paragraph (e)(1)(ii), which specified that the reclamation plan must require the removal, segregation, stockpiling, and redistribution of the B and C soil horizons and materials other than topsoil in order to achieve the optimal rooting depths required to restore premining land use capability and to comply with revegetation requirements. They alleged that the proposed rule is inconsistent with paragraphs (b)(5) through (7) of section Start Printed Page 93144515 of SMCRA,[289] which require salvage and redistribution soil materials, other than topsoil, only for prime farmland and in situations in which the subsoil or other materials have been approved as a topsoil substitute. They asserted that requiring the salvage of subsoil or other materials for anything other than prime farmland is not supported by SMCRA. As we explained in the preamble to our proposed rule, scientific studies have determined that an adequate root zone is critical to plant growth and survival, and that topsoil alone generally does not provide an adequate root zone. See 80 FR 44488-44489 (Jul. 27, 2015). These studies document that salvage and redistribution of topsoil alone will not necessarily restore the mine site 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.[290] Therefore, salvage and redistribution of subsoil and other soil materials will be necessary on sites other than prime farmland in order to meet the requirements of section 515(b)(2) [291] of SMCRA. Consistent with this rationale, the final rule differs slightly from the proposed rule in that final 30 CFR 780.12(e)(1)(ii) requires salvage, stockpiling (if necessary), and redistribution of the B and C soil horizons and other underlying strata only “to the extent and in the manner needed” to achieve the optimal rooting depths required to restore premining land use capability and to comply with revegetation requirements. Addition of the qualifier “if necessary” with respect to stockpiling reflects the fact that stockpiling may not be needed if salvaged materials can be immediately redistributed on backfilled areas.

In addition, paragraph (e)(1)(ii) includes the addition of certain exceptions in recognition of circumstances when the segregation of the B and C soil horizons and other underlying strata is not required. We made this change in response to comments urging us to allow blending of soil horizons when experience has demonstrated that doing so results in a superior growing medium. As a further response to these comments, we added an exception at paragraph (e)(1)(iv, which allows blending of the B horizon, C horizon, and other underlying strata, or portions thereof, to the extent that research or prior experience under similar conditions has demonstrated that blending will not adversely affect site productivity. Finally, we added an exception at paragraph (e)(1)(iii in response to comments objecting to use of the B and C horizons when one or both of those horizons have physical or chemical characteristics that make them inferior to other overburden materials in creating a medium conducive to plant growth. Paragraph (e)(1)(iii) specifies that the soil handling plan need not require salvage of the B and C soil horizons if the applicant demonstrates that those horizons are inferior to other overburden materials as a plant growth medium, provided that the applicant complies with the soil substitute requirements of paragraph (e)(2). We also note that, while several of the reference materials we cite relate to issues of Appalachia reforestation,[292] soils outside Appalachia will likewise benefit from this enhanced recovery of soil resources.[293] In addition, we expect that these requirements will result in greatly improved quality of the growth medium needed to ensure the restoration of premining capability and revegetation. Finally, because the process of reviewing and approving reclamation plans, as well as inspecting sites for compliance is well established, we conclude that these requirements will not place an added burden upon the regulatory authorities.

Additional commenters also asserted that the regulatory authority should have the discretion to make case-by-case determinations about the redistribution of soil materials and the depths at which those materials must be buried. These commenters noted that each state already has an acceptable method to demonstrate compliance with the soil redistribution requirements. These commenters cite the many years of successful bond releases as evidence that the current process for making determinations related to soil materials is adequate. We agree that determinations on the redistribution of soil materials should be based on site-specific information and the experience of local experts, and this rule does not depart from this perspective. Although this rule requires the regulatory authority to make additional determinations, the regulatory authority remains the ultimate decision-maker on the handling and replacement of soils, and its decisions will be based on local, site-specific conditions. This rule is necessary to align our regulations with the specific requirements of SMCRA sections 508(a)(2)(B) [294] and 515(b)(2),[295] which require that we ensure successful revegetation and the restoration of premining land use capability.

Several commenters objected to the proposed requirement to develop, as part of the reclamation plan, a soil handling plan that will restore the land to premining capability. These commenters indicated that it would be better to design a soil handling plan to accommodate the approved postmining land use provided for in § 816.111 of our regulations because the regulatory authority measures the success of the reclamation by achievement of that use. Commenters further alleged that the proposed rule would lead to confusion because, prior to this rule, reclamation success has always been determined by the ability to achieve the approved postmining land use.

We disagree. Section 515(b)(2) of SMCRA [296] requires that mine operators “restore land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining. . . .” Section 508(a)(2) of SMCRA requires that the reclamation plan in the permit application demonstrate that the reclamation can be successfully accomplished.[297] This requires the regulatory authority to assess of the capability of the land to support a variety of uses prior to any mining.[298] This assessment must include an assessment of the premining physical characteristics of the land and a determination regarding the various land uses the site would be able to support. Although revegetation success standards are essential to determining whether the postmining land use has been attained, revegetation alone does not ensure that reclamation has restored the land's capability to support the uses it was determined capable of supporting prior to any mining. If prior to any mining the land had significant physical restrictions or limitations due to, for example, slope or natural soils, the postmining reclamation might be limited. If, however, the land had few physical limitations and was capable of supporting a wide variety of uses prior to any mining, the land must be capable of supporting the same variety of uses after reclamation.

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Final Paragraph (e)(2): Soil Handling Plan—Substitutes and Supplements

While existing regulations allow the use of materials as topsoil substitutes and supplements if those materials are “equal to or better than” the topsoil, the proposed rule would allow the approval of topsoil and subsoil substitutes and supplements only if those materials would create a better growing medium than the original topsoil or subsoil. Commenters opined that the existing regulations work well, that a change is not needed, and that we have not satisfactorily explained why we proposed to make this change. Other commenters stated that if we intend to require the use of better materials, that requirement should be limited to substitute topsoil and not extended to subsoil as well. We disagree. As explained in the preamble to the proposed rule,[299] these new regulations will better implement section 515(b)(5) of SMCRA,[300] which allows use of other strata” . . . if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable (emphasis added) for vegetation requirements.” [301] Under this standard subsoil substitutes, like topsoil, must be “more suitable” than the existing topsoil in order to satisfy vegetation requirements. Moreover, this provision of our rule is consistent with the requirements of 515(b)(2) [302] in that it will assist in the restoration of premining capability by encouraging development of the root zone required by many plants for physical support, moisture and nutrient uptake.[303] Thus, we are making no changes to the proposed rule with respect to subsoil substitutes.

Commenters further stated that the proposal to require the “best materials” available is unnecessarily restrictive, places an unnecessary burden on regulatory authority resources, and requires more monitoring with little benefit. We disagree. The use of the best materials available will ensure better reclamation. Additionally, while we have raised the threshold on what materials may be considered as an acceptable substitute for subsoil, the process for using substitutes is essentially the same and should place no greater burden on regulatory staff. As such, we are not altering the final rule in response to these comments.

Several commenters questioned the criteria permitting the use of soil supplement and substitution materials. These commenters alleged that the proposed regulations are not consistent with section 515(b)(5) of SMCRA,[304] which allows soil substitution and supplements “if other strata can be shown to be more suitable for vegetation requirements . . . .” These commenters alleged that the proposed regulations ignore the term “more suitable”. These commenters suggested that we revise the regulations to use the “best overburden material available.” We have declined to make this change. Our final regulations for the use of soil supplements and substitutes are fully consistent with section 515(b)(5) of SMCRA.[305] As noted above, section 515(b)(5) of SMCRA allows for soil substitution and supplements if a demonstration can be made that other strata are “more suitable for vegetation requirements . . . .” Paragraph (e)(2)(i)(B) (purposed as (e)(2)(ii)(B), which we are finalizing today with only minor edits for clarity, allows for the use of substitutes and supplements if “[t]he use of the overburden materials that you have selected . . . will result in a soil medium that is more suitable than existing topsoil and subsoil to support and sustain vegetation . . . .” (Emphasis added.) This language is fully consistent with the language to section 515(b)(5). Likewise, final paragraph (e)(2)(i)(C) [proposed as (e)(2)(ii)(C)] is also consistent with section 515(b)(5) of SMCRA. That paragraph allows for substitutes and supplements if “[t]he overburden materials that . . . you select for use as a soil substitute or supplement [materials that] are the best materials available in the proposed permit area to support . . . vegetation consistent with the postmining land use and the revegetation plan . . .”. (Emphasis added.) Therefore we are not modifying the final rule based on these comments.

Several commenters stated that the inclusion of a number of characteristics for consideration, such as total depth, texture, and pH of soil horizons and overburden material in paragraph (e)(2)(iii)(B), are unnecessary and costly to test and compare. Commenters specifically objected to the inclusion of “thermal toxicity,” which they indicated is a term that is generally used relating to water, not soil. These commenters were uncertain about what that parameter required. In response to these comments, we have eliminated the term “thermal toxicity” from the final rule. While this term is applicable to soil, the commenter is correct in stating that it is more commonly used in association with water and aquatic organisms' tolerance to temperature. On reconsideration we have decided the added value of including this characteristic as it relates to soil substitute materials is limited and will not be required. However, the other characteristics listed in proposed § 780.12(e)(2)(iii)(B) are all essential to conducting a comprehensive analysis of whether a material is an acceptable substitute. Moreover, with the exception of “thermal toxicity,” which we did not include in the final rule, all of the soil characteristics included in final paragraph (e)(2)(iii)(B) were included in previous § 780.18(b)(4). Additionally, any one of these characteristics individually, if sufficiently adverse, could impact the success of revegetation. For example, a potential substitute material may have an excessively low pH. This factor alone could render it unacceptable as a substitute material. The final rule requires the regulatory authority to examine these factors in a thorough and comprehensive fashion.

We received comments alleging that it is unnecessarily duplicative to require the testing of substitute soil materials twice—once to prove they are suitable and then again after they have been placed. We disagree. Testing of substitute materials before placement is necessary because the testing serves as a baseline for the substitution plan, while testing after placement is needed to ensure that the substitution plan has been properly implemented.

A commenter stated that expansion of the soils-related regulations requires soil science expertise that many regulatory authorities lack. Any soil science expertise and costs related to address that need, if currently unavailable within a regulatory program, would certainly be a legitimate program cost, and, subject to appropriation, states would be eligible to receive matching grant funding to assist with these expenses.

Final Paragraph (f): Surface Stabilization Plan

Several commenters considered this paragraph to be a new permitting requirement. They generally contend that there is no value in this addition and claim that it was proposed without justification. In addition, some commenters asserted that proposed paragraph (f) should be removed because it is duplicative of other non-SMCRA related requirements governing the content of a mine's air quality Start Printed Page 93146permits. Another commenter suggested that the regulation be relocated or revised to better explain the associated permitting requirements. We disagree. As explained in the preamble to the proposed rule,[306] the surface stabilization plan required by paragraph (f) is the permitting counterpart to the performance standards at § 816.95, which requires that all exposed surface areas must be protected and stabilized to effectively control erosion and air pollution attendant to erosion, and 30 CFR 816.150 and 816.151, which require dust control on mine roads. This permitting requirement, which we are adopting as part of the final rule, allows the regulatory authority to evaluate the anticipated adequacy and effectiveness of proposed surface stabilization measures. Additionally, while many facets of air quality are not governed by SMCRA, it is clearly within our SMCRA authority to regulate air pollution attendant to erosion caused by mining activity. Therefore we are not modifying the final rule based on this comment.

Final Paragraph (g): Revegetation Plan

Final paragraph (g) is substantively identical to proposed paragraph (g), except as discussed below.

Proposed paragraph (g)(1)(v) provided that the revegetation plan must include the species to be planted and the seeding and stocking rates and planting arrangements to be used to achieve or complement the postmining land use and to enhance fish and wildlife habitat. Final paragraph (g)(1)(v) adds a requirement that the revegetation plan include the species to be planted and the seeding and stocking rates and planting arrangements to be used to achieve the streamside vegetative corridor provisions of final §§ 816.56(c) and 816.57(d), when applicable. We added this requirement to emphasize the critical nature of streamside vegetative corridors in achieving restoration of streams that are mined through.

One commenter requested that we implement, to the maximum extent practicable, measures to support pollinators with respect to native plants, consistent with the Presidential Memorandum dated June 20, 2014, “Creating a Federal Strategy to Promote the Health of Honey Bees and Other Pollinators.” In response to this comment, we added paragraph (g)(1)(v)(B) to the final rule. That paragraph provides that, to the extent practicable and consistent with other revegetation and regulatory program requirements, the species mix must include native pollinator-friendly plants and the planting arrangements must promote the establishment of pollinator-friendly habitat.

In response to a comment, we revised § 780.12(g)(1)(ix), regarding normal husbandry practices, to correctly cross-reference § 816.115(d).

Commenters recommended that we revise paragraph (g) to require that the selection of revegetation material take into account habitats for the wildlife species with the greatest conservation need, as determined by the state wildlife agency, the U.S. Fish and Wildlife Service, and regional or national wildlife conservation initiatives. According to the commenters, species of concern, which include many grassland birds, may benefit by replacing premining forested lands with grassland habitat.

Revisions of the nature advocated by the commenters may exceed our authority under SMCRA. In particular, adoption of a rule promoting the establishment of grasslands in place of the forests that would naturally exist on those sites would be inconsistent with section 515(b)(19) of SMCRA, which requires that the permittee “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.” [307] However, the final rule does require that permit applications include appropriate fish and wildlife enhancement measures. Specifically, final § 780.16(d)(2)(iv) promotes the reestablishment of native forests or other native plant communities, both within and outside the permit area.

Many commenters supported proposed paragraph (g)(1)(xi), which required that the applicant describe the process for monitoring and controlling invasive species. Other commenters requested an explanation of how the rule would apply to naturalized invasive or non-native species or when invasive or non-native species drift from adjacent lands and establish themselves on the mine site. The final rule does not distinguish between naturalized non-native species and non-native species that are not naturalized. Nor does it differentiate on the basis of how non-native species arrive on the mine site. Instead, it differentiates on the basis of whether the volunteer non-native species are invasive. In all cases, final paragraph (g)(1)(xi) requires that the revegetation plan identify 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. We recognize that it may not be possible to completely avoid the presence of some invasive species. The bottom line is that invasive species must not be present in quantities that would prevent attainment of the revegetation success standards established in accordance with final § 816.116.

At least one commenter suggested that we move proposed paragraphs (g)(2) and (3) to part 816 and make them performance standards. We declined to make this change. The revegetation plan, which is submitted and approved as part of the permit, is a critical component of the planning stage. After the permit, which includes the revegetation plan, is approved, the permittee then is obligated to comply with the terms and conditions of the approved permit. However, in reviewing the structure of proposed paragraphs (g)(2) and (3) in response to this comment, we determined that the requirement in proposed paragraph (g)(2) that the species and planting rates and arrangements selected as part of the revegetation plan meet the requirements of paragraphs (a) and (b) of § 816.116 is not appropriate. Paragraph (a) of § 816.116 requires that the regulatory authority select standards for revegetation success and statistically valid sampling techniques. Paragraph (b) of § 816.116 requires that the revegetation success standards reflect the revegetation plan requirements of § 780.12(g). Nothing in those two paragraphs would impact development of the revegetation plan. Therefore, final paragraph (g)(2) does not include the provision in proposed paragraph (g)(2) that would have required that the revegetation plan meet the requirements of paragraphs (a) and (b) of § 816.116.

Final paragraph (g)(3)(vii) differs from proposed paragraph (g)(3)(vii) in that the final rule does not include mention of state and federal poisonous plant laws. We made this change because we are not aware of any state or federal poisonous plant laws.

Some commenters requested the rule include more specific information on the meaning of native plant communities and the natural succession process. Final paragraph (g)(3)(iv) differs slightly from its counterpart in the proposed rule in that we added a clarification that the species in the revegetation plan must be consistent with the appropriate stage of natural succession in the native plant communities described in § 779.19 of Start Printed Page 93147the final rule. In other words, we do not intend to require planting of species that would not survive on drastically disturbed sites.

Several commenters stated that the standards for revegetation are not clear and asked whether sites are to be returned to the vegetation that existed prior to human influence. If this is the case, the commenters stated, this requirement would be impossible to meet in situations where non-native vegetation constitutes a significant portion of the premining landscape. The final rule does not necessarily require that the site be revegetated with the species that characterized the site before it was altered by human activities. The species selected must be suitable for the postmining land use. Final paragraph (g)(3)(i) requires use of species native to the area, but it also allows use of introduced species as part of the permanent vegetative cover for the site if the introduced species are both non-invasive and necessary to achieve the postmining land use, planting of native species would be inconsistent with the approved postmining land use, and the approved postmining land use is implemented before the entire bond amount for the area has been fully released under §§ 800.40 through 800.43. Final paragraph (g)(3)(i) is consistent with section 515(b)(19) of SMCRA,[308] 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 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.” Moreover, the default requirement in the final rule for use of native species is consistent with Section 2(a)(2)(i) of Executive Order 13751 stating, “[i]t is the policy of the United States to prevent the introduction, establishment, and spread of invasive species, as well as to eradicate and control populations of invasive species that are established.” Moreover, that Executive Order provides that Federal agencies to “the extent practicable and permitted by law . . . prevent the introduction, establishment, and spread of invasive species.” [309]

Many commenters supported the requirement to reclaim lands using predominantly native species. Other commenters considered the proposed requirement too stringent; they recommended fewer restrictions on the use of non-native species and more flexibility for the regulatory authority to approve vegetation plans based on local conditions. As previously explained, our final regulations allow for the appropriate use of introduced species for reclamation, as long as they are not invasive. Requirements to use native species (and, where appropriate, introduced, non-invasive species) for reclamation allow the regulatory authority to approve vegetation plans based on local conditions. They also minimize the risk of allowing non-native species to be introduced when they are not the best choice for long-term reclamation.

We also received comments that alleged that the requirement to use native vegetation conflicted with the requirement to achieve a condition in which the site will support a productive postmining land use and the requirement for use of species capable of self-regeneration and natural succession. The commenters alleged that the proposed requirements were neither sufficient nor the most productive way to achieve the postmining land use. These commenters noted that many non-native species might prove better candidates for achieving productivity, self-regeneration, and natural succession. Similarly, some commenters expressed concern that use of native species is not always suitable or best for a particular postmining land use, and that restoring the premining vegetation may conflict with fish and wildlife postmining land uses that involve elk and other game species.

Nothing in our rules prohibits revegetation of sites with a fish and wildlife postmining land use with species appropriate for the wildlife for which the site will be managed. Furthermore, final § 780.12(g)(3)(i), which incorporates the provisions of proposed paragraph (g)(6), allows the applicant to propose, and the regulatory authority to approve, use of introduced species to achieve a particular postmining land use, provided certain conditions are met. Final paragraphs (g)(3)(i) and (g)(4) allow the use of introduced species if (1) the introduced species are needed to achieve a quick-growing, temporary, stabilizing cover on disturbed and regraded areas, and the species selected to achieve this purpose will not impede the establishment of permanent vegetation; (2) the postmining land use requires the use of introduced, non-invasive species, and (3) the postmining land use will be implemented before the entire bond amount for the area has been fully released. These provisions provide the flexibility needed to allow the use of introduced species for agricultural postmining land uses. Therefore, final paragraph (g)(5) does not include the provision in proposed paragraph (g)(5) that would have allowed the regulatory authority to exempt lands with long-term, intensive agricultural postmining land uses from the requirements of paragraph (g)(3)(i).

Some commenters requested that we include a definition of “resembles” within § 780.12(g)(3)(ii), which requires “a permanent vegetative cover that resembles native plant communities in the area.” We find it unnecessary to define this term. The final rule allows the regulatory authority the flexibility to approve a native, non-invasive vegetative cover that would allow for natural succession specific to that site. To the extent that more explanation is needed, section 515(b)(19) of SMCRA requires that the permittee “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. . . .” [310]

We updated proposed paragraph (g)(4) in the final rule to more clearly reflect our intent to allow the regulatory authority to approve the use of introduced species when controlling erosion, but only if such use does not impede establishment of the permanent vegetation needed to meet revegetation success standards. We made this change is in response to commenters who asked for clarity about natural succession and the establishment of permanent native vegetation.

We also made a change to paragraph (g)(6) of the final rule. The proposed rule required that a professional forester or ecologist develop and certify any revegetation plan that includes trees or shrubs. Many commenters expressed concern over this requirement and noted that many other experienced professionals have the expertise to design and certify these plans. Some commenters observed that states may not professionally recognize or certify ecologists, and in those states that do certify ecologists, it may be rare to find an ecologist with sufficient experience to develop and certify revegetation plans for coal mining operations. We agree and have modified the final rule to address these concerns. Under the Start Printed Page 93148final rule, any qualified and experienced biologist, soil scientist, forester, or agronomist can now prepare or approve all revegetation plans. This change allows a wide variety of qualified and experienced professionals to approve these plans. We trust that a qualified and experienced professional in one subject area may consult with other appropriate individuals as necessary to prepare or approve the revegetation plan.

Another commenter suggested that we replace all references to “introduced” species with “invasive” species. We did not make this change. These terms are not synonyms (i.e., there are introduced species that are not invasive), and there are instances where “introduced” is more appropriate. The final rule at § 701.5 defines invasive species as “an alien species (a species that is not native to the region or area), the introduction of which has caused or is likely to cause economic or environmental harm or harm to human health”. The final rule prohibits use of these species for revegetation under SMCRA. However, introduced species that are non-invasive may be used in reclamation, as provided in final § 780.12(g)(3).

Other commenters expressed opposition to the proposed rule because they considered the previous regulations sufficient and not in need of any updates. We disagree. While it is true that under SMCRA, voluntary best practices have advanced to minimize the effect of introduced, invasive species on the natural processes and capability of reclaimed land, (as examples: the elimination in most instances of using crested wheatgrass, Agropyron cristatum,[311] Kentucky 31 tall fescue, Lolium arundinaceum,[312] and smooth brome, Bromus inermis; [313] using the Forestry Reclamation Approach; [314] and extreme surface roughening [315] ), the previous regulations were insufficient because they did not require use of these best practices.

Commenters also opined that these new regulations may not accommodate landowner desires. We agree that this statement may sometimes be true, but section 515(b)(19) of SMCRA requires the 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 at least equal in extent of cover to the natural vegetation of the area.” Landowners may replant the site with other species if they wish after final bond release, which terminates jurisdiction under SMCRA.

Other commenters claimed that the proposed rule's emphasis on native species is flawed due to concerns about the availability and survivability of native species, as well as their additional cost. We agree that these native species requirements could increase short-term reclamation costs, but they are not cost-prohibitive. The use of native species is the best technology currently available, and in the long-term, this requirement could also lower maintenance costs. We disagree that the availability and survivability of native species should prohibit our requirement to use them to reclaim SMCRA permitted disturbances. Native species are currently in wide use as best practices in SMCRA and non-SMCRA reclamation across the United States, and substantial progress continues to be made in the availability and diversity of native species. Best practices include contracting with growers to produce seed from the premining vegetation or from adjacent (and appropriate) areas for use in reclamation. This enhances the establishment and the survivability of the native species that are used.

Commenters also expressed concern that the proposed regulations would effectively eliminate postmining land use options other than forest. We disagree. As explained in the preamble discussion at section 701.5 within the “land use” definition, there are several acceptable postmining land uses, and forest is only one potential postmining land use. In addition, the revegetation plan set forth in this paragraph only requires the proposed vegetative cover to be consistent with both the approved postmining land use and the establishment of the plant communities described in the permit application, as required by § 779.19. Only those portions of the proposed permit area that are forested at the time of permit application or that would revert to forest under conditions of natural succession must be revegetated using native tree and understory species. This requirement would not apply when a postmining land use other than forestry has been approved, provided reforestation is inconsistent with the land use and provided that the approved postmining land use is implemented before final bond release.

Final Paragraph (h): Stream Protection and Reconstruction Plan

A commenter expressed concern that the steps in this plan would be inflexible and result in inappropriate enforcement actions that do not take into account the time required for restoration and recovery of natural stream functions. The commenter stated that § 780.12(h) implies that it is possible to predict when biological stream functions might be restored, a characterization with which the commenter disagrees. We do not agree that the regulation is inflexible or that it would result in inappropriate enforcement actions. We recognize that once a permittee completes construction of the stream channel and plants of the streamside vegetative corridor, there are few, if any, measures that may be taken to speed ecological restoration. The rule does not anticipate any enforcement action for failure to achieve restoration of ecological function within any specific time. However, it requires that final bond release be delayed until that requirement is accomplished.

A commenter stated that the use of the term “restoration” relating to streams should be changed to “reclamation” because the term “restoration” is not included in the definitions section of SMCRA. We have not made this change. The absence of the term in SMCRA does not prohibit its use, where appropriate, in our regulations. Moreover, section 508(a)(9) of SMCRA requires the permittee to include in the reclamation plan a statement of “the steps to be taken to comply with the . . . water quality laws and regulations.” [316] As discussed further in §§ 780.27, 780.28, 816.56, and 816.57, the establishment of standards for restoration of ecological function must be in coordination with the appropriate Clean Water Act authority to ensure compliance with all Clean Water Act requirements, where applicable. Further, the term “restoration” is appropriate in the context of ecological function restoration requirements for streams, whereas the term “reclamation” would be far less clear.

A commenter opined that because the Clean Water Act requires stream restoration plans, there is no need for a SMCRA review and approval of proposals to mine through a perennial or intermittent stream. Therefore, according to the commenter, we should simply reference the Clean Water Act Start Printed Page 93149permit. The commenter further suggests that this requirement be modified or removed as it is duplicative of requirements of other agencies, supersedes the Clean Water Act, and is in violation of section 702 of SMCRA.[317]

We disagree with the commenter's assertion that this requirement supersedes the Clean Water Act. In Part IV.I., above, we further discuss the relationship between SMCRA and Clean Water Act. While Clean Water Act stream restoration plans may serve as the basis for the restoration plan required by our final rule, (which is further justification for coordination with the Clean Water Act authority in the development of such plans), the regulations referenced in our final rule address the need for a plan that restores stream form, hydrologic function and ecological function. The completion of these various phases of a stream restoration plan are all tied to bond release; therefore it is critical that any plan utilized be incorporated into the SMCRA permit. In addition, the Clean Water Act authority may not always require a stream restoration plan, but may instead require mitigation in accordance with Clean Water Act provisions. It is not uncommon for mitigation to consist of in-lieu fee payments to a “mitigation bank” which negates the obligation to actually restore the lost stream functions required by the final rule. Our regulations require a demonstration that intermittent and perennial streams can be restored hydrologically and ecologically, otherwise the regulatory authority may not approve of a request to mine through such steams. Therefore we cannot rely on provisions within the Clean Water Act to satisfy this requirement.

Final Paragraph (l): Compliance With the Clean Air Act and the Clean Water Act

This section requires that the reclamation plan describe the steps to comply with the requirements of the Clean Air Act,[318] the Clean Water Act,[319] and other applicable air and water quality laws and regulations and health and safety standards. A commenter asserted that there is no rational basis for this requirement and recommends that we remove it because it is unnecessary for an applicant to describe the steps taken or that are to be taken in association with laws other than SMCRA. In support of this assertion, the commenter states that the permittee must comply with all applicable applications, regulations, and permit approval documents of other applicable laws or face enforcement mechanisms by the pertinent agencies to compel compliance. We disagree with the commenter because section 508(a)(9) of SMCRA [320] specifically requires that the applicant demonstrate in the reclamation plan “the steps to be taken to comply with applicable air and water quality laws and regulations and any applicable health and safety standards.” [321] Because this is a statutory requirement, it cannot be removed as the commenter suggests: It is important that the applicant describe how compliance will be attained, especially considering complex mining scenarios and requirements.

Final Paragraph (m): Consistency With Land Use Plans and Surface Owner Plans

One commenter urged us to not to adopt the requirements under paragraph (m) because a mine operator already must comply with any state and local land use plans and programs and these requirements are beyond the authority of the SMCRA agency. The commenter adds that neither the regulatory authority nor the mine operator can know what future plans a landowner may implement that may alter a formerly approved permit following termination of jurisdiction. As we explained in the preamble to the proposed rule,[322] the requirements of this paragraph are now consistent with the requirements of section 508(a)(8) of SMCRA [323] which requires that each reclamation plan submitted as part of permit application include a statement of the “consideration which has been given to making the surface mining and reclamation operations consistent with surface owner plans, and applicable State and local land use plans and programs.” Mine operators must consider making operations consistent with surface owner plans, in addition to considering post-mining land use. Contrary to the commenters' opinion that this requirement is beyond our authority, final paragraph (m) specifically mirrors the requirements of section 508(a)(8) of SMCRA; therefore, we are adopting paragraph (m) as proposed.

Final Paragraph (n): Handling and Acid-Forming and Toxic-Forming Materials

We have added final paragraph (n) to the final rule because we determined that it was more appropriate to place the permitting requirements about how a permittee must develop an acid-forming and toxic-forming handling plan in the performance standards of proposed §  816.38. Specifically, we have moved proposed § 816.38(a) through (d), which prescribe handling of acid-forming and toxic-forming materials, to final paragraph (n) because these handling requirements must be included in the reclamation plan.

As discussed in the preamble,[324] we proposed to modify section 816.38 to implement more completely section 515(b)(14) of SMCRA,[325] 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.” Our revisions to proposed § 816.38, now paragraph (n) of § 780.12, are also consistent with section 515(b)(10)(A) of SMCRA,[326] which requires the permittee to “minimize the disturbances to the prevailing hydrologic balance . . . by avoiding acid or toxic mine drainage. . . .” In proposed § 816.38(a), now § 780.12(n)(1), we discuss how handling of acid-forming or toxic-forming materials identified during collection of baseline information under final § 780.19(e)(3) will be prescribed in the reclamation plan. In particular, paragraph (n)(1) pertains to handling acid-forming and toxic-forming materials when they are identified in the overburden above the lowest coal seam mined. One commenter suggested that we should allow the practice of blending acid-forming materials with spoil that exhibits sufficient alkalinity to prevent acid drainage. Because of the neutralization effects of this practice, we agree with the commenter and have added text to paragraph (n)(1)(ii)(A) that expressly allows this practice. Several commenters asserted that we should limit the scope of proposed § 816.38(c), now final § 780.12(n)(1)(ii), to areas where surface water and groundwater problems could occur. We made no revisions in response to this comment. Adverse impacts to surface water or groundwater may occur anywhere acid-forming or toxic-forming materials are present. Thus, final paragraph (n)(1)(ii) properly applies whenever acid-forming Start Printed Page 93150or toxic-forming materials are present; therefore, no revisions are necessary or appropriate. The same commenters also asserted that proposed § 816.38(c), now § 780.12(n)(1)(ii), was overly restrictive and should allow techniques other than those set forth in the proposed rule. We disagree with the characterization that final paragraph (n)(1)(ii) is overly restrictive; this provision allows the operator to either demonstrate that acid or toxic drainage will not be generated or choose from proven methods of handling acid-forming and toxic-forming materials to prevent material damage to the hydrologic balance outside the permit area. The commenters suggested, for example, that it may be possible to effectively prevent pollution resulting from acid-forming or toxic-forming materials by placing the materials in a position that is “high and dry.” We agree that, in common with other placement methods, placing acid-forming or toxic-forming materials permanently above the groundwater table can be effective. Final paragraph (n)(1)(ii), describes several methods of addressing acid-forming or toxic-forming materials, including treatment with neutralizing materials and placement of the materials so that they will remain permanently above, or below, the groundwater table. However, we must point out that paragraph (n)(1)(ii)(B) only allows placement of acid-forming or toxic-forming materials below the water table, without surrounding them with compacted low permeability material, if you can demonstrate and the regulatory authority finds in writing that complete saturation will prevent the formation of acid or toxic mine drainage. If you, the permittee cannot make this demonstration, you must either treat the acid-forming or toxic-forming material in accordance with paragraph (n)(1)(ii)(A) or completely surround the acid-forming or toxic-forming materials with compacted low permeability material in accordance with paragraph (n)(1)(ii)(C). If you surround the material with compacted low permeability material, you may place the material either permanently below the groundwater table in accordance with paragraph (n)(1)(ii)(C)(1), or permanently above the groundwater table in accordance with paragraph (n)(1)(ii)(C)(2). Surrounding the material with compacted low permeability material is necessary regardless of placement location because spoil is known to be highly variable in terms of hydraulic conductivity. Therefore, unless these materials are surrounded by compacted low permeability material, acid-forming or toxic-forming elements or compounds may be leached from the materials by infiltrating precipitation (above the groundwater table) or by flowing groundwater (below the groundwater table). As one commenter noted, these requirements are consistent with the holding in Rith Energy, Inc. v. OSM, 111 IBLA 239 (IBLA 1989) that requires that acid-forming and toxic-forming materials be handled in a manner that will avoid the creation of acid or toxic mine drainage so as to minimize disturbance to the prevailing hydrologic balance.

In § 816.38(d), now § 780.12(n)(2), we have provided for placement of acid-forming or toxic-forming materials in an excess spoil fill or coal mine waste refuse pile using the methods outlined in paragraph (1) to prevent contamination of ground or surface waters. Although we did not receive comments on proposed paragraph (d), we made nonsubstantive changes to the paragraph to conform to plain language principles and to accommodate moving the text to § 780.12.

In § 816.38(a), now § 780.12(n)(3), we address the measures that you must specify in your reclamation plan to prevent adverse hydrologic effects resulting from acid-forming or toxic-forming materials being exposed during mining, if they are present in the stratum immediately below the lowest coal seam being mined. Several commenters, including regulatory authorities and operators, recommended deleting this paragraph, arguing that it erroneously presupposes that all coal seams and the pit floor contain acid-forming and toxic-forming materials. In addition, the commenters opined that requiring an impervious layer below the coal seam could potentially cause more problems than it solves by reducing recharge to aquifers below the coal seam and by sealing unmined coal faces, thus impeding potential groundwater recharge to the backfill. The commenters were particularly concerned with the proposed requirement to cover exposed coal seams and the stratum immediately beneath the lowest coal seam mined with a layer of compacted material with a hydraulic conductivity at least two orders of magnitude lower than the hydraulic conductivity of the overlying, less-compacted spoil. The commenters asserted that this requirement is unnecessary and will result in additional cost with little benefit to water quality by imposing increased inspection frequency. Commenters also opined that this would require operators to work adjacent to the highwall for longer periods, presenting numerous safety issues. We disagree with the commenters. This rule requires the development of a plan to prevent any adverse hydrologic impacts that might result from exposure of the stratum beneath the coal seam that was exposed during the mining process. The requirement to develop a plan will apply only when the baseline geologic information collected under section § 780.19(e) indicates that the stratum immediately below the lowest coal seam to be mined contains acid-forming or toxic-forming materials. Final § 773.15(n) prohibits the regulatory authority from approving the permit application unless the applicant demonstrates, and the regulatory authority concurs, that the operation has been designed to prevent the formation of toxic mine drainage or other discharges that would require long-term treatment after mining has been completed. Therefore, the plan must be adequate to satisfy this requirement. One option the permittee may employ is placing a compacted low permeability layer over the in-place stratum immediately beneath the coal seam using the same safety measures that allowed removal of the coal.

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

Section 780.13 explains the additional maps, plans, and cross sections that the applicant must include in the reclamation plan. We have adopted the section as proposed with the exception of one additional requirement, a few non-substantive changes, and renumbering of paragraphs.

A few commenters expressed concern about the proposed requirement in § 780.13(a)(9) to map each feature and facility that is constructed to protect or enhance fish, wildlife, and related environmental values. Commenters stated that this is time consuming and that these features are likely to change over the course of mining operations; therefore, the commenters advocated the elimination of these requirements. We disagree. This requirement provides valuable information that will allow the regulatory authority to assess, monitor, and review the evolving operation. While this requirement may result in more time and effort at the initial permitting stage, it should save time and effort in subsequent permit reviews. Furthermore, it is important to accurately document efforts to protect or enhance fish, wildlife, and related environmental values.

As discussed within the preamble to § 816.57(d), we have added to our performance standards a requirement to Start Printed Page 93151establish 100-foot wide vegetative corridors along certain perennial and intermittent streams. In order to ensure consistency between the permit requirements and the performance standards, we have also added a new paragraph (a)(14) to § 780.13, which requires the applicant to provide data about each streamside vegetative corridor that it proposes to establish. Documenting the proposed location of vegetative corridors will aid the applicant in planning and allows the regulatory authority to assess the proposed location of the vegetative corridors to ensure they can be established consistent with the requirements of § 816.57(d).

The U.S. Forest Service supported adoption of proposed paragraph (a)(15) and we received no comments opposing it. For clarity, however, we have divided the requirements of this paragraph into two separate paragraphs, numbered (a)(16) and (a)(17) because of the addition of new paragraph (a)(14) to the final rule. Final paragraph (a)(16) requires the applicant to provide the “location and geographic coordinates of each monitoring point for groundwater and surface water.” Final paragraph (a)(17) requires the applicant to provide “the location and geographic coordinates of each point at which you propose to monitor the biological condition of perennial and intermittent streams.”

Proposed paragraph (c) clarified that the regulatory authority may require an applicant to submit the materials required under this section in digital format. The U.S. Forest Service and others expressed general support for submitting data in digital format. Other commenters recommended that this paragraph be revised to encourage, but not require, the digital format option for all materials submitted for review and analysis by the public and the regulatory authority. These commenters expressed concern that requiring materials to be submitted in a digital format would be financially burdensome and that some operators or state regulatory authorities might not possess the technical ability to provide the information in a digital format. We do not agree. Proposed paragraph (c) did not require the submission of materials in a digital format but merely clarified that the regulatory authority can require digital submissions if it so chooses. Requiring permit materials to be submitted in digital format could actually save regulatory authorities a significant amount of time that might otherwise be spent digitizing materials submitted by applicants so that they will be accessible to the public and to us. Furthermore, submission of digital data is increasingly common and does not require highly specialized technology or equipment. Consequently, we have made no substantive change to the final rule.

Section 780.14: What requirements apply to the use of existing structures?

Most changes to § 780.14 are editorial in nature. They primarily implement plain language principles and improve syntax and structure. In addition, we revised paragraph (b)(2) to eliminate the requirement for specifying the interim steps in the schedule for reconstruction of each existing structure because such a requirement would have no utility to the regulatory authority. What matters from a regulatory perspective is the starting and ending dates of the reconstruction, which revised paragraph (b)(2) continues to require. We also revised paragraph (b)(2) to apply the schedule requirement to both modification and reconstruction of existing structures, not just to reconstruction of those structures. The change makes paragraph (b)(2) consistent with the language of paragraph (b)(1). It also avoids the need for the applicant and regulatory authority to distinguish between modification and reconstruction. That distinction serves no regulatory purpose because any existing structure must be brought into compliance with applicable regulatory requirements. It makes no difference whether the effort to achieve compliance is called modification or reconstruction.

Section 780.15: What plans for the use of explosives must I include in my application?

One commenter recommended that we revise the blasting regulations in relation to the impact of the use of explosives on birds. This recommendation is outside the scope of our current rulemaking because the proposed rule included no substantive revisions to the blasting regulations.

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

Section 780.16 is intended to ensure that a proposed surface coal mining and reclamation operation is designed in a manner that meets the fish and wildlife protection and enhancement requirements of the regulatory program. Except as discussed below, we have adopted § 780.16 as proposed, with minor editorial revisions for clarity and consistency.

Final Paragraph (b): Protection of Threatened and Endangered Species and Species Proposed for Listing as Threatened or Endangered

Proposed paragraph (b) required the permittee to describe how the permit would comply with the Endangered Species Act, 16 U.S.C. 1531 et seq., including any species-specific protection and enhancement plans developed in accordance with that law. In response to comments from federal agencies, we have added a new paragraph (b)(1) stating that final paragraphs (b)(2) and (b)(3) apply when the proposed operation may affect species listed or proposed for listing as threatened or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., or designated or proposed critical habitat under that law.

Another commenter requested that we add “proposed species” to this section. We made the recommended revisions because, as discussed in greater detail in the preamble text for section 773.15(j) above, both SMCRA and the Endangered Species Act provide authority to protect species that have been proposed for listing.[327] Section 7(a)(4) of the Endangered Species Act [328] requires that Federal agencies confer with the U.S. Fish and Wildlife Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed as threatened or endangered. SMCRA sections 515(b)(24) and 516(b)(11) [329] require that, at a minimum, mining 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.” The requirement to minimize impacts to “fish, wildlife, and related environmental values” is not in any way limited to Endangered Species Act-listed species.

Several commenters expressed support for proposed §  780.16(b) to the extent that it requires compliance with the Endangered Species Act [330] and incorporation of any species-specific protection and enhancement measures into the permit, including those provided for under applicable biological opinions for the mining operations at issue. However, commenters also noted that “species-specific protection and enhancement measures” are not developed in accordance with the Start Printed Page 93152Endangered Species Act, as our proposed regulation indicated. They noted that a more appropriate Endangered Species Act tool might be a habitat conservation plan under Section 10 of the Endangered Species Act and suggested we replace “protection and enhancement plan” with “habitat conservation plan” as an example of a relevant plan developed in accordance with the Endangered Species Act. We agree and have changed the text of paragraph (b)(2) accordingly. However, species-specific protection and enhancement measures, where developed, should also be followed wherever possible.

Several commenters also requested that we require an applicant to demonstrate that it has complied with all applicable species-specific protection and enhancement measures. However, compliance with applicable species-specific protection and enhancement measures, while important, does not necessarily ensure compliance with the Endangered Species Act. For example, we, along with the U.S. Fish and Wildlife Service, and a representative group of state regulatory authorities have only developed species-specific protection and enhancement measures for a limited number of species. While this type of guidance can reduce uncertainty and streamline the permitting process, it is not possible to develop range-wide, species-specific protection and enhancement measures for every Endangered Species Act-listed species affected by coal mining operations. Further, the fact that guidance has not been produced for a particular species does not excuse an applicant from developing protection and enhancement measures specific to that species for inclusion in a permit application. Where species-specific protective measures have not been developed, an applicant will have to coordinate with the appropriate office of the U.S. Fish and Wildlife Service or National Marine Fisheries Service to ensure that adequate measures are incorporated into a permit. Where species-specific protective measures have been developed, such as the range-wide Indiana Bat protection and enhancement plan guidelines finalized in 2009,[331] site-specific modifications to these guidelines are often necessary depending on the size, location, or other characteristics of the operation and/or permit area. Therefore, we have determined that it is more accurate to simply require that an application must demonstrate compliance with the Endangered Species Act because this requirement would encompass any necessary species-specific protection and enhancement measures developed in coordination with the appropriate U.S. Fish and Wildlife Service or National Marine Fisheries Service office. However, in evaluating this suggestion we have determined that proposed paragraph (e)(4), containing the requirement that an application must demonstrate compliance with the Endangered Species Act should be moved to paragraph (b). Therefore, we combined proposed paragraph (e)(3) with final paragraph (b)(1) and moved proposed paragraph (e)(4) to a new paragraph at (b)(2) in the final rule.

Other commenters requested that we require applicants to demonstrate that the proposed permit would not adversely impact any species listed or proposed for listing under the Endangered Species Act. Additionally, one commenter suggested that there should be a strict prohibition on any activity within 100 feet of streams because of the potential to adversely impact aquatic species. We do not agree that additional prescriptive protective measures should be required in this section or that an applicant must demonstrate that a proposed mining operation will not adversely impact any listed species. In the final rule, we have revised our previous regulations to ensure that threatened and endangered species and species proposed for listing as threatened or endangered are correctly identified and described, as explained in § 779.20; that the permit is designed to protect and enhance those species, as explained in § 780.16; and that the regulatory authority makes a finding that the permit complies with the Endangered Species Act as explained in § 773.15(j). The analysis of what protection and enhancement measures are required under paragraph (b) should be species and site-specific and should be done in close coordination with the appropriate state or federal agencies. These types of species and site-specific considerations do not lend themselves to prescriptive rules. The exact process of developing protection and enhancement plans will depend on how the applicant intends to demonstrate achievement of the finding required under final § 773.15(j). Final § 780.16(b) fits into this scheme by simply requiring that an applicant describe how it will comply with the Endangered Species Act. This description will vary depending on how the applicant intends to demonstrate compliance with the Endangered Species Act, site-specific considerations, and the number and type of listed or proposed species potentially impacted by the operation.

Other commenters expressed concern over the requirement, now located in final paragraph (b)(2), that compliance with the Endangered Species Act must be demonstrated before the regulatory authority may approve a permit. Many commenters opined that it takes a long time to obtain approval of necessary protection and enhancement measures for proposed or listed species from the U.S. Fish and Wildlife Service or National Marine Fisheries Service and questioned whether it was possible to obtain a permit on the condition that no impact to listed species would occur until the coordination process was complete. We have evaluated this request and determined that, until the coordination process is complete, it would be very difficult to determine whether an operation will not impact species. However, where an operation can be reduced in size or divided into different phases to avoid proposed or listed species, there is no prohibition on pursuing a permit for that smaller area while simultaneously pursuing approval of a second, nearby permit where impacts to species may occur. This could allow an operator to begin mining on the permit that would have no impacts to species, assuming all other requirements were met, such as the requirement that phases of operations that are significantly related must be evaluated in a single impact statement pursuant to NEPA,[332] while continuing the coordination process on the permit where impacts to species are possible.

Final Paragraph (c): Protection of Other Species

One commenter recommended we remove from the final rule all language that the commenter characterized as “subjective,” such as “to the maximum extent practicable” or to “minimize disturbances and effects” and instead provide specific examples of techniques and practices that would be expected to be implemented or followed. We have not revised the final rule in response to this comment. Similar language is found throughout SMCRA, and provides an appropriate level of flexibility for each regulatory authority to determine the applicability of techniques and practices on a case-by-case basis. It would be inappropriate to prescribe techniques and practices within the regulations Start Printed Page 93153implementing SMCRA, as these may be site specific, and the best technology currently available and best practices are not static and evolve.

In response to paragraph (c)(1) of the proposed rule, many commenters opposed the requirement to time mining operations as to avoid or minimize disruption of critical life cycle events for all fish and wildlife, such as migration, nesting, breeding, calving, and spawning. These commenters criticized the paragraph as either unclear, conflicting with other requirements, or overbroad and noted that, if implemented, it could halt all mining activity because these critical lifecycle events happen throughout the year. While it may, on a species by species basis, be necessary to time certain activities to avoid or minimize impacts on certain species, we generally agree with commenters that requiring it for all species would not be appropriate. Therefore, we have deleted this paragraph and renumbered the remaining paragraphs accordingly.

Proposed paragraph (c)(2), now final paragraph (c)(1), requires a description of how the permittee will retain forest cover and other native vegetation as long as possible and time the removal of that vegetation to minimize adverse impacts on aquatic and terrestrial species. Some commenters alleged that this requirement is too difficult to comply with because timing the removal of forest cover and native vegetation for one species might conflict with the timing for another species. As an example, several commenters pointed out conflicts between cutting restrictions for endangered bats and the needs of other species. We do not agree with this concern. Paragraph (c) addresses the protection of non-listed species and related environmental values and requires applicants to minimize disturbances and adverse impacts on species “to the extent possible using the best technology currently available.” If it is not possible to time the removal of vegetation to minimize adverse impacts to a non-Endangered Species Act species because of other species considerations, such as the Endangered Species Act-listed Indiana Bat tree cutting guidelines, a description of why the vegetation must be cut at a specific time is sufficient to satisfy this requirement. We have not made any changes as a result of these comments as this paragraph provides sufficient flexibility to time the removal of forest cover and vegetation to best protect aquatic and terrestrial species, including endangered species.

We received numerous comments, ranging from highly critical to very supportive, of the requirement in proposed paragraph (c)(3) that operations must maintain, to the extent possible, an intact forested stream buffer of at least 100 feet between surface disturbances and perennial and intermittent streams. We have deleted proposed paragraph (c)(3) because we have revised final § 816.57(b) to include a prohibition on mining in or within 100 feet of a perennial or intermittent stream, subject to the exemptions contained in final § 780.28, making proposed paragraph (c)(3) of this section redundant. A discussion of all comments on the 100 foot stream buffer, including comments on proposed paragraph (c)(3), is available in the preamble discussion of §§ 780.28 and 816.57.

One commenter requested that we define or otherwise clarify the term “environmental values” as discussed in proposed paragraphs (c)(4), (5), and (d)(1) because the term is not currently defined within the proposed rule or previous regulations. We decline to define this term, because imposing a national definition for “environmental values” would be too restrictive and would not account for regional differences. The regulatory authority has the proper expertise to determine its meaning on a case-by-case basis.

Proposed paragraph (c)(5) required the operator to periodically evaluate the impacts of the operation on fish, wildlife, and related environmental values in the permit and adjacent areas and to use of that information to modify the operations to avoid or minimize adverse effects. Several commenters expressed concern that we did not provide guidance on the appropriate frequency for these “periodic evaluations”, on how rigorous the evaluation should be, and on who would be responsible for completing the evaluations. Some commenters recommended the removal of this paragraph because of concerns that operators might be required to change mining operations to offset impacts to wildlife beyond the control of the operators. We agree that the proposed rule language was ambiguous about how often the periodic review should be. In response, we are deleting this paragraph in the final rule and renumbering the remaining paragraphs. However, we have added a new requirement at final § 774.10(a)(2) that requires the regulatory authority to review the impacts of the operation on fish, wildlife, and related environmental values in the permit and adjacent areas. This review must occur not later than the middle of each permit term except that permits with a term longer than five years must be reviewed no less frequently than the permit midterm or every five years, whichever is more frequent. The regulatory authority must use that evaluation to determine whether it is necessary to order the permittee to modify operations to avoid or minimize adverse impacts on those values. The regulatory authority has the discretion to determine the rigor of these periodic reviews, which is appropriate because they have the local expertise to determine whether the operation is having the anticipated impact on fish, wildlife and related environmental values and whether revisions are necessary. For example, if unexpected drought conditions cause protection and enhancement measures to be less effective than initially anticipated, the regulatory authority review of the fish and wildlife protection and enhancement plan should evaluate whether, and to what extent, revisions should be made to the permit to effectively implement section 515(b)(24) of SMCRA.[333] The review under final § 774.10(a)(2) is separate from any monitoring and evaluation requirements that may be required to ensure compliance with the Endangered Species Act.

Some commenters stated that proposed paragraph (c)(6), which we adopted as final paragraph (c)(3) and which requires the selection of non-invasive native species for revegetation, could conflict with the need to use non-native species for site stabilization, such as on steep slopes, and in situations where erosion is a problem. As support, some commenters noted that the Natural Resources Conservation Service guidelines propose the use of non-natives to control erosion. We do not view these requirements as conflicting. The final rule does not prohibit the use of non-invasive, non-native vegetation when appropriate to control erosion and when approved in the revegetation plan. However, § 780.16 focuses on the protection and enhancement of fish and wildlife resources, which typically benefit from the use of non-invasive, native species, whenever possible. In response to comments requesting the discretion to use non-native plant species in limited circumstances, we have modified this paragraph to allow for the limited use of non-native species. Specifically, we have included a reference to final § 780.12(g)(4), which allows for use of non-native species when they are necessary to achieve a quick-growing, temporary, stabilizing cover on disturbed and regraded areas, as long as the species selected to Start Printed Page 93154achieve this purpose will not impede the establishment of permanent vegetation.

Commenters questioned the benefits of using native vegetation in final paragraph (c)(3), alleging that non-native vegetation provides increased forage and habitat for turkey, deer, and elk. We do not agree. The best available science indicates that, 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. Native species can satisfy many of the same land management needs that nonnative species do, but 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.[334] They generally require less watering and fertilizing than non-natives because they are adapted to local soils and climate conditions. They are less likely to need pesticides because they are often more resistant to insects and disease. Finally, local wildlife evolved along with local plants; therefore, wildlife readily uses native plant communities for food, cover and rearing young.

Commenters also recommended that the determination of the types of vegetation to be used should be left to the discretion of the regulatory authority and should be done on a case-by-case basis because regional and site-specific conditions vary. They also stated that landowner input should be considered when determining vegetative cover. In response to these concerns, we note that final § 780.12(g)(4) gives the regulatory authority sufficient flexibility to allow the use of non-native species when necessary to achieve a quick-growing, temporary, stabilizing cover on disturbed and regraded areas, as long as the selected species will not impede the establishment of permanent vegetation. However, SMCRA clearly directs mining operations to establish “permanent vegetative cover of the same seasonal variety native to the area of land to be affected,” allowing non-native species to be used only “where desirable and necessary to achieve the approved postmining land use plan.” [335] Therefore, because of the statutory importance of the use of native species, we have decided that it is not necessary or appropriate to expand the regulatory authority's discretion any further than the exemption in final § 780.12(g)(4) and have not made any changes in response to these comments.

Proposed paragraph (c)(7) is renumbered in the final rule as paragraph (c)(4). In the final rule we require a permittee to describe the plan for avoiding wetlands, perennial and intermittent streams, and habitat adjacent to perennial or intermittent streams. If avoidance of perennial or intermittent streams is not possible, we outline the steps to minimize impacts that must be taken in final paragraphs (c)(4)(i)(A)-(C).

In final paragraph (c)(4)(i), we have added “wetlands” to the list of important habitat features that must, if possible, be avoided during mining. This change is in response to comments from other federal agencies who expressed concern that wetlands were not specifically mentioned in this paragraph. Adding the term “wetlands” to relevant sections of final paragraph (c)(4) and its subparts will ensure that operations avoid mining through wetlands as well as perennial and intermittent streams, and habitat adjacent to perennial or intermittent streams, if possible.

One commenter expressed concern that the requirement in proposed paragraph (c)(7)(ii), final paragraph (c)(4)(i)(B), to “minimize the length of the stream mined through,” is duplicative of the Clean Water Act section 404 [336] permitting program and is impermissible under section 702 of SMCRA.[337] We disagree. Final paragraph (c)(4) is designed to ensure that operations use “the best technology currently available [to] minimize disturbances and adverse impacts” [338] on the fish and wildlife that depend on the wetlands, perennial and intermittent streams, and habitat adjacent to perennial or intermittent streams. Thus, compliance with this provision of SMCRA is a separate, independent obligation on operators from requirements of the Clean Water Act.

In response to a comment we received from a federal agency we have added paragraph (c)(4)(ii) which requires the permittee to identify the authorizations, certifications, and permits required by the Clean Water Act, 33 U.S.C. 1251 et seq., and the steps the permittee will take or has taken to procure those authorizations, certifications, and permits. Furthermore, we point out that issuance of a permit does not authorize a permittee to conduct any surface mining activity in or affecting waters subject to the Clean Water Act until the appropriate Clean Water Act authorization, certification, or permit is obtained. Information submitted and analyses conducted under subchapter G of this chapter may inform the agency responsible for authorizations, certifications, and permits under the Clean Water Act, but they are not a substitute for the reviews, authorizations, certifications, and permits required under the Clean Water Act.

Final Paragraph (d): Enhancement Measures

Proposed paragraph (d) required that permit applicants describe how they would use the best technology currently available to enhance fish, wildlife, and related environmental values both within and outside the area to be disturbed by mining activities, where practicable. Section 515(b)(24) of SMCRA [339] requires that surface coal mining and reclamation operations “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.” Therefore, to be consistent with the statutory language, final § 780.16(d)(1)(i) adds the qualifying phrase “to the extent possible” to the proposed rule.

Proposed paragraph (d)(1) also included a list of twelve potential enhancement measures. Many commenters were generally supportive of these potential enhancement measures and as discussed below, we are adopting that list in revised form as final paragraph (d)(2). Others were concerned that these potential enhancement measures were requirements, or could be construed by regulatory authorities as mandatory enhancement measures to be performed on each permitted operation. Commenters explained that mandating conservation easements and/or deed restrictions may conflict with State Trust Lands, state agency goals and objectives, and result in unlawful takings or overly burdensome requirements that private landowners or local government agencies would not be willing to accept. These concerns are Start Printed Page 93155misplaced as these enhancement measures are only provided as a list of potential measures to be used, to the extent possible. In addition, the list provided is not exhaustive, as regulatory authorities have the discretion to approve other types of enhancement measures on a case-by-case basis. Other commenters interpreted proposed paragraph (d)(1) as requiring implementation of all twelve potential enhancement measures or, for each enhancement measure not used, an explanation of why that particular enhancement measure was not practicable. That was not our intent. Therefore, we modified proposed paragraph (d)(1) by separating it into final paragraphs (d)(1)(i) and (d)(1)(ii). New language in final paragraph (d)(1)(i) clarifies that the list of proposed enhancement measures in final paragraph (d)(2) is not exhaustive and that regulatory authorities may approve other enhancement measures. New language in final paragraph (d)(1)(ii) clarifies that if an applicant does not include any enhancement measure, it must explain, to the satisfaction of the regulatory authority, why implementation of enhancement measures is not practicable. An applicant does not have to address the practicability of all twelve potential enhancement measures.

Several commenters alleged that it would be difficult to know whether an enhancement measure is “practicable” and expressed concern that a regulatory authority could force an applicant to enact all enhancement measures. However, this standard was present in our previous regulations and commenters did not identify any situations in which a regulatory authority had abused its discretion with respect to whether an enhancement measure was practicable. Therefore, we have not defined “practicable” in response to these comments.

Commenters opined that it is inappropriate to allow enhancement measures distinct from the area to be disturbed by mining activities, especially if enhancement measures would take place in a location physically unconnected to the mine site. Allowing the regulatory authority the flexibility to approve enhancement measures in locations away from the disturbance area is necessary to fully realize the mandate in section 515(b)(24) of SMCRA to achieve enhancement of fish, wildlife, and related environmental values where practicable.[340] While it is typically preferable to conduct enhancement measures on or near the disturbed areas, allowing enhancement measures away from the disturbed area provides significant flexibility and may, at times, be the most beneficial and/or practicable option. Further, there is no requirement within SMCRA that permitted sites must only contain lands spatially connected to one another.

Commenters expressed concern with a perceived ambiguity of the phrase “natural succession” in proposed paragraph (d)(1)(iv), which is now final paragraph (d)(2)(iv), as it relates to the establishment or description of a native plant community. Commenters alleged that the term “natural succession” is too broad in concept and needs a specific definition. The commenters requested clarification of the term “natural succession” and an explanation of why use of the term is necessary. We disagree that natural succession is an ambiguous concept. Our final rule uses the term “natural succession” in the standard ecological context of that term, which means the predictable maturation of the native vegetative community over time. The references to natural succession are not a prescriptive mandate for one particular type of plant community. Instead, we use the term “natural succession” as an outcome-based requirement aimed at ensuring that the types of plant communities that are initially established allow for the predictable maturation of the site. When a site would typically mature to forest, it would be appropriate to establish native vegetation that will not impede that process.

One commenter suggested we promote the establishment of pollinator-friendly species as described within Presidential Memorandum “Creating a Federal Strategy to Promote the Health of Honey Bees and Other Pollinators.” [341] This suggestion furthers the goals not only of the Presidential Memorandum but also of SMCRA section 515(b)(24) [342] because it clearly promotes fish, wildlife, and related environmental values. Consequently, we have added the clause “establishing native plant communities designed to restore or expand native pollinator populations and habitats” to final paragraph (d)(2)(iv) in response to this comment.

Some commenters also recommended we revise § 780.16(d)(2)(iv) and (v) as we have in the proposed rule at § 780.16(c)(6), which is now final § 780.16(c)(4), to allow non-native species to be used. We disagree. Because these paragraphs describe a choice of discretionary enhancement measures, they are appropriately more limited in scope than the requirements of final § 780.16(c)(4). While the use of non-native species may, at times, be necessary, it should not be considered an enhancement measure.

Another commenter sought clarification about how native forest and other native vegetation will be reestablished “both within and outside of the permit area” as stated in proposed paragraph (d)(1)(iv), which is now final paragraph (d)(2)(iv). The commenter asserted that this paragraph needed to be revised and limited to “areas within the permit area” that have been or will be disturbed by mining activities. We do not agree. This section provides optional measures to maximize opportunities to enhance restoration of native vegetation and natural wildlife habitat. Enhancement opportunities may arise within the permit boundary. However, where disturbance from mining may remove a significant portion of native forest or other native vegetation, it may be possible to look some distance outside of the disturbance area for opportunities to reestablish native vegetative cover during mining. The resulting benefits to species could be realized while mining was ongoing, thus offsetting some of the adverse impact on species caused by mining.

This particular commenter also asserted that mining companies cannot operate outside approved permit areas; thus, according to the commenter, any regulation that requires lands not disturbed by mining activities to be affected would be contrary to SMCRA's requirement to minimize disturbances. We do not agree. Some of these measures could be implemented off-permit without adding land to the permit area if the enhancement activity would involve de minimis disturbance, as described in proposed § 780.16(d)(3) and in final § 780.16(d)(4). If reestablishment of native vegetation would involve more than a de minimis disturbance, or if excluding lands from a permit area would restrict the regulatory authority's ability to inspect and confirm completion of a permit term, then these lands could be made part of the permit area in order to implement the planned enhancement.

Commenters stated that the enhancement measure at proposed paragraph (d)(1)(v), which is now final paragraph (d)(2)(v), involving the establishment of vegetative corridors at least 100 feet wide along each bank of Start Printed Page 93156streams that lacked such buffers before mining, could be interpreted by a regulatory authority as requiring an artificial water source, especially in semi-arid states. Further, the commenters stated that the cost of providing these artificial water sources was not analyzed in the DEIS and that we did not evaluate legal considerations related to water rights in western regions. The commenters concern is misplaced. Nothing in this paragraph requires establishment of vegetation that would need an artificial water source. Use of vegetation that requires an artificial water source would be inconsistent with the purpose of the fish and wildlife enhancement measures in this rule, which is to encourage restoration or establishment of natural conditions using native species.

Commenters voiced concern that proposed § 780.16(d)(1)(v), which is now final § 780.16(d)(2)(v), was too inflexible in requiring that, if an enhancement mea