[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40735-40746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19735]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SPATS No. WY-022]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with additional requirements, a proposed
amendment to the Wyoming regulatory program (hereinafter, the ``Wyoming
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The proposed amendment consists of addition and revision of
statutes and rules pertaining to shrub density stocking requirements
and wildlife habitat. The amendment was intended to revise the Wyoming
program to be consistent with SMCRA and the corresponding Federal
regulations.
EFFECTIVE DATE: August 6, 1996.
FOR FURTHER INFORMATION CONTACT:
Guy V. Padgett, Director, Casper Field Office, Telephone: (307) 261-
5824, Internet address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
On November 26, 1980, the Secretary of the Interior conditionally
approved the Wyoming program. General background information on the
Wyoming program, including the Secretary's findings, the disposition of
comments, and the conditions of approval of the Wyoming program can be
found in the November 26, 1980, Federal Register (45 FR 78637).
Subsequent actions concerning Wyoming's program and program amendments
can be found at 30 CFR 950.12, 950.15, 950.16, and 950.20.
II. Proposed Amendment
By letter dated November 29, 1995, Wyoming submitted a proposed
amendment to its program (administrative record No. WY-031-1) pursuant
to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed
amendment in response to the required program amendments at 30 CFR
950.16(q) and (bb) through (hh). The provisions of the Wyoming
Environmental Quality Act that Wyoming proposed to revise were: Wyoming
Statute (W.S.) 35-11-103, definitions, and W.S. 35-11-402,
establishment of reclamation standards. The provisions of the coal
rules and regulations of the Department of Environmental Quality, Land
Quality Division, that Wyoming proposed to revise were: chapter I,
section 2, definitions; chapter II, section 2, permit application
requirements for surface coal mining operations; chapter IV, section 2,
general environmental protection performance standards for surface coal
mining operations; chapter X, section 4, coal exploration and
reclamation performance standards; chapter XI, section 5, self-bonding;
chapter XIII, section 3, notice and opportunity for public hearing on
surface coal mining permit revisions; chapter XVII, section 1,
definitions for designation of areas unsuitable for surface coal
mining; and appendix A, vegetation sampling methods and reclamation
success standards for surface coal mining operations.
OSM announced receipt of the proposed amendment in the December 18,
1995, Federal Register (60 FR 65048), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. WY-31-02).
Because no one requested a public hearing or meeting, none was held.
During its review of the amendment, OSM identified concerns
relating to the proposed provisions of the rule at chapter I, section
2(v), critical habitat for threatened and endangered species; the rules
at chapter I, sections 2(ac) and (bc)(xi), and chapter IV, section
2(d)(x)(E)(I), definitions for ``eligible land'' and ``treated
grazingland'' and reclamation success standard for shrub density: the
rule at chapter II, section 2(a)(vi)(G)(II), consultation by the
Wyoming Land Quality Division on critical habitat; W.S. 35-11-402(b)
and the rules at chapter II, section 2(b)(iv)(C), and chapter IV,
section 2(d)(x)(E)(III), approval of reclamation standards by the
Wyoming Game and Fish Department; the rules at chapter II, section
2(b)(vi)(B)(III) and chapter IV, sections 2(c)(xi)(F)(II) and 2(r),
permit application requirements and performance standards for
protection of important and crucial habitats for fish and wildlife; the
rule at chapter X, section 4(e), disturbance of important habitat by
exploration operations; the rule at chapter XIII, section 2(b), notice
and opportunity for public hearing on permit revision; appendix A,
section VIII.E. and the rule at chapter IV, section 2(d)(x)(E)(I),
programwide or permit-specific consultation and approval by the Wyoming
Game and Fish Department; and appendix A, appendix IV, plant species of
special concern. OSM notified Wyoming of the concerns by letter dated
March 8, 1996 (administrative record No. WY-31-17).
Wyoming responded by letter on April 9, 1996, to each of the issues
(administrative record No. WY-31-18). For some of the issues, Wyoming
submitted specific revisions that it intends to pursue in the State
rulemaking process. This process is expected to produce a formal
amendment that would be submitted to OSM by mid-1997. OSM acknowledges
these revisions but, because they have not yet been promulgated, does
not in the following findings make determinations on their
effectiveness.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with additional requirements, that the
proposed program amendment submitted by Wyoming on November 29, 1995,
is no less stringent than SMCRA and no less effective than the
corresponding Federal regulations. Accordingly, the Director approves,
with additional requirements, the proposed amendment.
1. Substantive Revisions to Wyoming's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
Wyoming proposed revisions to the following rules that are
substantive in nature and contain language that is substantively
identical to the requirements of the corresponding Federal regulation
provisions (listed in parentheses).
Chapter I, section 2(bc)(viii) (30 CFR 701.5), land use
definition for ``fish and wildlife habitat,'' and
Chapter XI, section 5(a) (30 CFR 800.23(g)), substitution of a
surety bond for a self-bond.
Because these proposed Wyoming rules are substantively identical to
the corresponding provisions of the Federal regulations, the Director
finds that they are no less effective than the Federal regulations. The
Director approves these proposed rules.
[[Page 40736]]
2. W.S. 35-11-103(e)(xxviii), Definition for ``Agricultural Lands''
On January 24, 1994, OSM at 30 CFR 950.16(bb) required Wyoming to
delete its definition for ``agricultural lands'' at W.S. 35-11-
103(e)(xxviii) or provide an interpretation of the definition that
would make it no less stringent than SMCRA and no less effective than
the Federal regulations (finding No. 1, 59 FR 3521). Wyoming proposed
to delete the definition.
This deletion satisfies the required amendment and does not make
Wyoming's regulatory program less stringent than SMCRA and less
effective than the Federal regulations. Therefore, the Director
approves the proposed deletion of the definition for ``agricultural
lands'' at W.S. 35-11-103(e)(xxviii) and removes the required amendment
at 30 CFR 950.16(bb).
3. W.S. 35-11-103(e)(xxix) and Rule at Chapter I, Section 2(v),
Definition for ``Critical Habitat''
On January 24, 1994, OSM at 30 CFR 950.16(cc) (finding No. 2, 59 FR
3521, 3521-2) required Wyoming to delete its definition for ``critical
habitat'' at W.S. 35-11-103(e)(xxix) or revise it to make the term
applicable to animal and plant species habitats that have been
designated by the Secretary of the Interior as critical habitats under
section 3 of the Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.).
In response to the required amendment, Wyoming proposed to delete
the definition for `'critical habitat'' at W.S. 35-11-103(e)(xxix) but
to add a similar definition for this term in its rules at chapter I,
section 2(v). In this rule, Wyoming proposed that ``critical habitat''
means ``those areas essential to the survival and recovery of species
listed by the Secretary of the Interior or Commerce as threatened or
endangered (50 CFR, parts 17 AND 226).''
50 CFR part 226 pertains to habitat for marine mammals, fish, and
reptiles designated as critical by the National Oceanic and Atmospheric
Administration under the jurisdiction of the Secretary of Commerce. 50
CFR Part 17 pertains to critical habitats listed by the Secretary of
the Interior under the Endangered Species Act of 1973, as amended (16
U.S.C. 1531-1543), but it is also in 30 CFR 17.2(b), through its
reference of subpart B, lists threatened and endangered wildlife and
plant species completely under the jurisdiction of the Department of
Commerce and other such species jointly under the jurisdiction of the
Departments of the Interior and Commerce.
There is no counterpart definition for ``critical habitat'' in
SMCRA or the Federal regulations. However, the surface and underground
mining permit application regulations at 30 CFR 780.16(a) and (b) and
784.21(a) and (b) require resource information and protection and
enhancement plans for listed or proposed endangered or threatened
species of plants or animals or their ``critical habitats'' listed by
the Secretary of the Interior under the Endangered Species Act of 1973,
as amended (16 U.S.C. 1531 et seq.). Also, the performance standards at
30 CFR 816.97(b) and 817.97(b) require that no surface or underground
mining activity shall be conducted that is likely to jeopardize the
continued existence of endangered or threatened species listed by the
Secretary of the Interior or that is likely to result in the
destruction or adverse modification of designated ``critical habitats''
of such species in violation of the Endangered Species Act of 1973, as
amended.
Wyoming's referencing of the Secretary of Commerce's regulations at
50 CFR Part 226 has no relevance to the Wyoming regulatory program,
because the State has no mammals, fish, and reptiles that spend at
least part of their lives in a marine environment. Wyoming's
referencing of these regulations does not itself make its rule less
effective than the Federal regulations, but OSM indicated in the
January 24, 1994, Federal Register notice that Wyoming's protection of
critical habitat designated by the Secretary of the Interior or
Commerce could be interpreted to allow Wyoming to choose to protect the
critical habitat designated by one of the departments, but not both.
OSM reasoned that Wyoming could choose to protect critical habitat
designated by the Department of Commerce (for which there is none in
Wyoming) and not protect critical habitat designated by the Secretary
of the Interior.
In its April 9, 1996, response to OSM's issue letter, Wyoming
stated that the Secretary of Commerce's regulations at 50 CFR part 226
have no relevance in the State.
On the basis of this clarification, OSM finds that Wyoming's
proposed deletion of the definition for ``critical habitat'' at W.S.
35-11-103(e)(xxix) and the proposed addition of a definition for this
term in its rule at chapter I, section 2(v) are no less effective than
the Federal regulations at 30 CFR 780.16(a) and (b), 784.21(a) and (b),
816.97(b), and 817.97(b). Therefore, the Director approves the proposed
deletion and addition, and removes the required amendment at 30 CFR
950.16(cc). However, to avoid confusion by someone who reads Wyoming's
rules but has not read this finding, OSM recommends that Wyoming in a
future amendment delete in the rule at chapter I, section 2(v) the
references to the Secretary of Commerce and the regulations at 50 CFR
part 226.
4. W.S. 35-11-103(e)(xxx) and Rules at Chapter I, Sections 2(ax) and
(w), Definitions for ``Important Habitat'' and ``Crucial Habitat''
On January 24, 1994, OSM at 30 CFR 950.16(dd) (finding No. 3, 59 FR
3521, 3522) required Wyoming to delete its definition for ``important
habitat or crucial habitat'' at W.S. 35-11-103(e)(xxx) or revise it so
that it did not exclude ``agricultural lands,'' which were defined at
W.S. 35-11-103(e)(xxviii) as `'cropland, pastureland, hayland, or
grazingland,'' from lands that could also have to be protected as
``important habitats or crucial habitats.''
In response to the required amendment, Wyoming proposed to delete
the definition for `'important habitat or crucial habitat'' at W.S. 35-
11-103(e)(xxx) but to add separate definitions for ``important
habitat'' and ``crucial habitat'' in the rules at chapter I, sections
2(ax) and (W).
Wyoming proposed that ``important habitat'' means
that habitat which, in limited availability, supports or encourages
a maximum diversity of wildlife species or fulfills one or more
living requirements of a wildlife species. Examples of important
habitat include, but are not limited to, wetlands, riparian areas,
rimrocks, areas offering special shelter or protection, reproduction
and nursery areas, and wintering areas.
It also proposed that ``crucial habitat''means ``those areas,
designated as such by the Wyoming Game and Fish Department, which
determine a population's ability to maintain and reproduce itself at a
certain level over the long term.''
There is no counterpart definition for ``important habitat'' or
``crucial habitat'' in SMCRA or the Federal regulations. However, the
surface mining permit application regulations at 30 CFR 780.16 (a) and
(b) require resource information and protection and enhancement plans
for ``habitats of unusually high value for fish and wildlife'' such as
important streams, wetlands, riparian areas, cliffs supporting raptors,
areas offering special shelter or protection, migration routes, or
reproduction and wintering areas. Also, the performance standards at 30
CFR 816.97(f) require that surface mining activities shall avoid
[[Page 40737]]
disturbances to, enhance where practicable, or restore ``habitats of
unusually high value for fish and wildlife.''
As described in 30 CFR 780.16(a)(2)(ii), ``habitats of unusually
high value for fish and wildlife'' include ``important streams,
wetlands, riparian areas, cliffs supporting raptors, areas offering
special shelter or protection, migration routes, or reproduction and
wintering areas.'' This description coincides with Wyoming's proposed
definition for ``important habitat'' at chapter I, proposed section
2(ax), which states that ``important habitat'' includes ``wetlands,
riparian areas, rimrocks, areas offering special shelter or protection,
reproduction and nursery areas, and wintering areas.''
Wyoming's proposed rule definitions for ``important habitat'' and
``crucial habitat'' at chapter I, sections 2(ax) and (w) are not
inconsistent with (1) the surface mining permit application regulations
at 30 CFR 780.16 (a) and (b), which require resource information and
protection and enhancement plans for ``habitats of unusually high value
for fish and wildlife'' and (2) the performance standards at 30 CFR
816.97(f), which require that operators of surface coal mining
activities shall avoid disturbances to, enhance where practicable, or
restore ``habitats of unusually high value for fish and wildlife.''
Therefore, the Director approves Wyoming's proposed rule definitions
for ``important habitat'' and ``crucial habitat'' at chapter I,
sections 2 (ax) and (w).
Also, because Wyoming deleted its statutory definition for
``important habitat or crucial habitat'' at W.S. 35-11-103(e)(xxx) and
because its proposed rule definitions for ``important habitat'' and
``crucial habitat'' at chapter I, sections 2 (ax) and (w) do not
exclude ``agriculture lands,'' which was defined at W.S. 35-11-
103(e)(xxviii) but which has now been deleted (see finding No. 2), the
Director removes the required amendment at 30 CFR 950.16(dd).
5. W.S. 35-11-402(b) and Rules at Chapter II, Section 2(b)(iv)(C), and
Chapter IV, Sections 2(d)(x)(E) and (E)(III), Establishment of
Reclamation Standards for Fish and Wildlife Habitat and Grazingland
On January 24, 1994, OSM at 30 CFR 950.16(ee) (finding No. 4, 59 FR
3521, 3522-3) required Wyoming to repeal the part of W.S. 35-11-402(b)
that provides direction to the Wyoming Environmental Quality Council to
use the statutory definitions for ``agricultural lands,'' ``critical
habitat,'' and ``important habitat or crucial habitat'' at W.S. 35-11-
103(e)(xviii), (xxix), and (xxx) in establishing reclamation standards
for fish and wildlife habitat that are required by Federal law or
regulations to be approved by State Wildlife agencies. OSM placed this
requirement on the Wyoming program because OSM had disapproved the
three definitions on the basis that they were less stringent than SMCRA
and less effective than the Federal regulations (finding Nos. 1, 2, and
3, 59 FR 3521, 3521-2).
As indicated in finding Nos. 1, 2, and 3, Wyoming proposed to
delete the statutory definitions for ``agricultural lands,'' ``critical
habitat,'' and ``important habitat or crucial habitat'' at W.S. 35-11-
103(e)(xviii), (xxix), and (xxx), and the Director approved these
deletions. At W.S. 35-11-402(b), Wyoming proposed to delete the
references to these statutory definitions. Wyoming's proposed deletion
of the statutory definitions satisfies the required amendment at 30 CFR
950.16(ee). Therefore, the Director removes the required amendment.
W.S. 35-11-402(b).-At existing W.S. 35-11-402(b), Wyoming requires
that, to the extent required by federal law or regulations, the Wyoming
Game and Fish Department's approval has to be obtained for reclamation
standards established for ``fish and wildlife habitat'' as defined at
W.S. 35-11-103(e)(xxvi). As additional requirements at W.S. 35-11-
402(b) (i) and (ii), Wyoming proposed that the Wyoming Game and Fish
Department's approval would have to be obtained for standards
established for `'grazingland,'' as defined at W.S. 35-11-
103(e)(xxvii), if the grazingland includes critical habitat designated
by the U.S. Fish and Wildlife Service or if it includes crucial habitat
designated by the Wyoming Game and Fish Department prior to submittal
of the initial permit application or any subsequent amendments to the
permit application. An amendment to a permit application is, as set
forth in Wyoming's existing rule at chapter I, section 2(e), a permit
application adding new lands to a previously approved permit area, as
allowed by W.S. 35-11-406(a)(xii).
Although unstated, the standards addressed by the proposed
provision are revegetation standards for which the Wyoming Land Quality
Division would have to obtain the Wyoming Game and Fish Department's
approval on a permit-specific basis.
This proposed State statute does not have any direct counterpart in
SMCRA, but it does in part have a counterpart in the Federal
regulations. The Federal regulation at 30 CFR 816.116(b)(3)(i) requires
for areas to be developed for fish and wildlife habitat, that success
of vegetation, which is to be based upon tree and shrub stocking and
vegetative ground cover parameters, be specified by the regulatory
authority after consultation with and approval by the State agency
responsible for the administration of the wildlife program.
The existing provision at proposed W.S. 35-11-402(b) requires
Wyoming Game and Fish Department approval of revegetation standards for
land to be reclaimed to fish and wildlife habitat. This provision is
consistent with the corresponding Federal regulation at 30 CFR
816.116(b)(3)(i), which requires the State wildlife agency's approval
of the revegetation standards for areas to be reclaimed for fish and
wildlife habitat.
The proposed provision at W.S. 35-11-402(b)(i) requires Wyoming
Game and Fish Department approval of revegetation standards for
grazingland including critical habitat. As discussed in finding No. 10,
the Federal regulation at 30 CFR 780.16(a)(2)(i) requires Wyoming to
obtain the approval of the U.S. Fish and Wildlife Service, not the
State wildlife agency, on any critical habitat that could be affected
by mining operations. Although Wyoming does not indicate in the
proposed provision at W.S. 35-11-402(b)(i) that it must obtain U.S.
Fish and Wildlife Service approval, this does not make the provision
less effective than the Federal regulation at 30 CFR 780.16(a)(2)(i),
because Wyoming has narrowly worded the provision in such a way as to
only apply to Wyoming Game and Fish Department approvals. This does
not, however, relieve Wyoming of the responsibility to require such
U.S. Fish and Wildlife Service approval through its rule at chapter II,
section 2(a)(vi)(G)(II). Although the Federal regulations do not
require State wildlife agency approval for critical habitat, Wyoming's
proposal to do so amounts to an additional requirement that odes not
render the proposed provision at W.S. 35-11-402(b)(i) less effective
than the Federal regulation at 30 CFR 780.16(a)(2)(i).
The proposed provision at W.S. 35-11-402(b)(ii) requires Wyoming
Game and Fish Department approval of revegetation standards for
grazingland, as defined at W.S. 35-11-103(e)(xxvii), which was
designated by the Wyoming Game and Fish Department as crucial habitat
prior to submittal of the initial permit application or any subsequent
amendments to the permit application. As set out in Wyoming's
definitions, grazingland is a different and separate land use from fish
and wildlife habitat. Therefore, grazingland with crucial habitat on
it, regardless of when the crucial habitat was designated, is not
[[Page 40738]]
fish and wildlife habitat. ``Fish and wildlife habitat,'' as defined at
W.S. 35-11-103(e)(xxvi), is ``land dedicated wholly or partially to the
protection, protection or management of species of fish or wildlife''
(emphasis added). ``Grazingland,'' as defined at W.S. 35-11-
103(e)(xxvii) ``includes rangelands and forestlands where the
indigenous native vegetation is actively managed for grazing, browsing,
occasional hay production, and occasional use by wildlife'' (emphasis
added). In its April 9, 1996, letter response to OSM's issue letter,
Wyoming implicitly acknowledged this difference when it stated that
there is ``very little habitat which is dedicated wholly or partially
to the production, protection or management of species of fish or
wildlife'' (emphasis in the original, page 3 of Wyoming's letter, item
No. 4.B). In its proposed provision at W.S. 35-11-402(b)(ii), the
Wyoming Land Quality Division requires Wyoming Game and Fish Department
approval of revegetation standards for certain ``grazingland.'' To the
extent that the corresponding Federal regulation at 30 CFR
816.116(b)(3)(i) only requires State wildlife agency approval of
revegetation standards for ``fish and wildlife habitat,'' the proposed
provision at W.S. 35-11-402(b)(ii) goes beyond the requirements of the
Federal regulation.
For the reasons discussed above, the Director finds that proposed
W.S. 35-11-402(b)(i) and (ii) are no less stringent than SMCRA and no
less effective than the Federal regulation at 30 CFR 816.116(b)(3)(i).
The Director approves these statutory provisions.
Rules at chapter II, section 2(b)(iv)(C), and chapter IV, sections
2(d)(x)(E) and (E) (III).--Wyoming's revegetation plan requirements for
surface coal mining permit applications are in its rule at chapter II,
section 2(b)(iv)(C). Wyoming proposed to revise the rule to require
consultation with the Wyoming Department of Agriculture on cropland and
erosion control techniques. The Federal permitting regulation at 30 CFR
780.18(b)(5) requires a plan for revegetation as required in 30 CFR
816.111 through 816.116. The Director finds that consultation with the
Wyoming Department of Agriculture would potentially result in a permit
that affords greater environmental protection to lands developed for
cropland. This proposed revision to the rule at chapter II, section
2(b)(iv)(C) is not inconsistent with the intent of the Federal
regulation at 30 CFR 780.18(b)(5).
Some of Wyoming's revegetation performance standards are in its
rules at chapter IV, section 2(d)(x)(E). Wyoming proposed at section
2(d)(x)(E) that the postmining density, composition, and distribution
of shrubs shall be based upon site-specific evaluation of premining
vegetation and wildlife use. The Federal regulation at 30 CFR
816.116(a)(2) requires that standards for revegetation success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. The Director finds that this proposed
revision to the rule at chapter IV, section 2(d)(x)(E) is not
inconsistent with the Federal regulation at 30 CFR 816.116(a)(2).
Wyoming proposed to further revise the rule at chapter II, section
2(b)(iv)(C) to (1) require, for crucial and critical habitats,
consultation with and approval by the Wyoming Game and Fish Department
on minimum stocking and planting arrangements of trees and shrubs,
including species composition and vegetative ground cover and (2)
require, for important habitats, consultation with the Wyoming Game and
Fish Department on minimum stocking and planting arrangements of trees
and shrubs, including species composition and vegetative ground cover.
Wyoming proposed at chapter IV, section 2(d)(x)(E) (III) to (1)
require, for areas containing designated critical or crucial habitats,
consultation with and approval by the Wyoming Game and Fish Department
on minimum stocking and planting arrangements of shrubs, including
species composition, and (2) require, for areas containing important
habitats, consultation with the Wyoming Game and Fish Department to
obtain recommended minimum stocking and planting arrangements of
shrubs, including species composition, that may exceed the preceding
programmatic standard (the standard at section 2(d)(x)(E)(I), which
requires that, except where a lesser density is justified from
premining conditions in accordance with appendix A, at least 20 percent
of the eligible lands shall be restored to shrub patches supporting an
average density of one shrub per square meter). With two exceptions,
these proposed consultation and approval requirements and consultation-
only requirements are the same as the proposed statutory requirements
for W.S. 35-11-402(b) that are addressed above.
The first exception is that the rules indicate that consultation
with and approval by the Wyoming Game and Fish Department need occur on
crucial habitat (i.e., all crucial habitat regardless of when it is
designated), whereas the statute indicates that the approval by the
Wyoming Game and Fish Department need only occur on those crucial
habitats that are designated prior to the submittal of the initial
permit application or any subsequent permit application amendments. To
the extent that the proposed rules at chapter II, section 2(b)(iv)(C),
and chapter IV, section 2(d)(x)(E)(III), require Wyoming Game and Fish
Department approval of certain crucial habitats not required by the
statute at W.S. 35-11-402(b)(ii), the proposed rules and statute are
not consistent. Therfore, the Director is requiring Wyoming to (1)
revise the rules at chapter II, section 2(b)(iv)(C) and chapter IV,
section 2(d)(x)(E)(III) to require Wyoming Game and Fish Department
approval of revegetation standards for grazingland that was designated
by the Wyoming Game and Fish Department as crucial habitat prior to
submittal of the initial permit application or any subsequent
amendments to the permit application, or (2) to revise the statute at
W.S. 35-11-402(b)(ii) to remove the phrase ``prior to submittal of the
initial permit application or any subsequent amendments to the permit
application.''
The second exception is that the rules do not require consultation
and approval on all surface mined lands to be reclaimed for a ``fish
and wildlife habitat'' land use, whereas the statute does. The rules
require consultation and concurrence on critical habitat and crucial
habitat, but they do not require consultation and concurrence on lands
to be reclaimed for the fish and wildlife habitat land use. The Federal
regulations at 30 CFR 816.116(b)(3)(i) require, for areas to be
developed for the fish and wildlife habitat land use, consultation and
concurrence by the State agency responsible for the administration of
the wildlife program on minimum stocking and planting arrangements for
tree and shrub stocking. To the extent that the rules at chapter II,
section 2(b)(iv)(C), and chapter IV, section 2(d)(x)(E)(III), do not
require consultation with and approval by the Wyoming Game and Fish
Department on minimum stocking and planting arrangements for tree and
shrub stocking on lands to be reclaimed for the fish and wildlife
habitat land use, they are less effective than the Federal regulations
at 30 CFR 816.116(b)(3)(i). Therefore, the Director approves the rules
at chapter II, section 2(b)(iv)(C) and chapter IV, section
2(d)(x)(E)(III) but requires Wyoming to revise them to require
consultation with and approval by the Wyoming Game and Fish Department
of tree and shrub standards for all lands to be reclaimed for the fish
and wildlife habitat land use.
[[Page 40739]]
In conclusion, the Director finds, for the reasons discussed above,
that the proposed rules at chapter II, section 2(b)(iv)(C), and chapter
IV, section 2(d)(x)(E)(III), are less effective than the Federal
regulations at 30 CFR 816.116(b)(3)(i). The Director approves the
proposed rules but requires Wyoming to revise them.
6. W.S. 35-11-402(c), Establishment of Shrubs on Grazingland
On January 24, 1994, OSM at 30 CFR 950.16(ff) (finding No. 5, 59 FR
3521, 3523) required Wyoming to either delete W.S. 35-11-402(c) (which
required reestablishment of shrubs on grazingland to a density of one
shrub per 9 square meters, or to the premining density, whichever was
less) or to submit documentation that the shrub density requirement was
consistent with SMCRA and no less effective than the Federal
regulations.
In response to the required amendment, Wyoming proposed to delete
the shrub density for grazingland from W.S. 35-11-402(c). This deletion
satisfies the required amendment at 30 CFR 950.16(ff), and the Director
is removing the required amendment. (Note, however, that Wyoming has
now proposed shrub density standards elsewhere in its rules. For a
discussion of the effectiveness of those rules, see finding No. 7.)
At W.S. 35-11-402(c), Wyoming also proposed, for the reclamation of
grazingland, that native shrubs be reestablished. It also stipulated
that no shrub species shall be required to be more than one-half of the
shrubs in the postmining standard.
Section 515(b)(19) requires that surface coal mining and
reclamation operations establish on 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 affected.
Wyoming's proposed W.S. 35-11-402(c) is no less stringent than
section 515(b)(19) of SMCRA in that it requires the use of native
species and, through its requirement that no shrub species shall be
more than one-half of the shrubs in the postmining standard, promotes a
diverse vegetative cover.
For the above stated reasons, the Director approves proposed W.S.
35-11-402(c).
7. Rules at Chapter I, Section 2(ac); Chapter IV, Section 2(d)(x)(E)(I)
and (II); and Appendix A: Definition for ``Eligible Land'' and
Reclamation Success Standards for Shrub Density
On January 24, 1994, OSM at 30 CFR 950.16(gg) (finding No. 6, 59 FR
3521, 3524) required Wyoming to amend the rule at chapter IV, section
2(d)(X)(E) and appendix A to include shrub density requirements that
are in compliance with SMCRA and the Federal regulations. In response
to the required amendment, Wyoming proposed the following revisions to
its rules.
At chapter I, section 2(ac), Wyoming proposed that ``eligible
land'' means
all land to be affected by a mining operation after the shrub
standard set forth at chapter IV, section 2.(d)(x)(E) is approved by
the Office of Surface Mining. Cropland, pastureland or treated
grazingland approved by the Administrator which is to be affected by
a mining operation after the shrub standard set forth at chapter IV,
section 2.(d)(x)(E) is approved by the Office of Surface Mining is
not ``eligible land''
(emphasis added).
In its rule at chapter IV, section 2(d)(x)(E) (I) and (II), Wyoming
proposed that
(I) Except where a lesser density is justified from premining
conditions in accordance with Appendix A, at least 20 percent of the
eligible land shall be restored to shrub patches supporting an
average of one shrub per square meter. Patches shall be no less than
.05 acres each and shall be arranged in a mosaic that will optimize
habitat interspersion and edge effect. Criteria and procedures for
establishing the standard are specified in Appendix A. This standard
shall apply upon approval by OSM to all lands affected thereafter.
(II) Approved shrub species and seeding techniques shall be
applied to all remaining grazingland. Trees shall be returned to a
density equal to the premining conditions
(emphasis added).
Appendix A of Wyoming's rules contains vegetation sampling methods
and reclamation success standards for surface coal mining operations.
In the following sections of appendix A, Wyoming proposed revisions
that restate the above-discussed rules and detail the vegetation
analyses that must be made by operators to implement the rules: II.C.3,
detailed qualitative and quantitative sampling procedures, suggested
sampling procedures for shrub habitat characteristics; VII.F,
developing a revegetation plan, restoration of shrubs, subshrubs, and
trees; and VIII.E, testing adequacy of reclamation, summary. Also, in
the following sections of appendix A, Wyoming proposed other
miscellaneous related revisions: Table 1, values for use in sample
adequacy formula; table 2 and IV.D. minimum and maximum sample sizes
for various sampling methods; and appendix VII, glossary terms
``dominant'' and ``primary shrub species.'' The effect of these
proposed rules is that, with respect to lands to be reclaimed for a
grazingland use or a fish and wildlife habitat land use, there is one
shrub reclamation standard that applies to lands disturbed prior to the
date of OSM's approval of the rules, and there is a different one that
applies to lands disturbed after the date of OSM's approval of the
rules.
For those lands disturbed prior to the date of OSM's approval, the
requirements of the existing rule at chapter IV, section 2(d)(x)(E)
applies. It sets a reclamation goal of one shrub per square meter in
shrub patches on 10 percent of the affected land. For those lands
disturbed after the date of OSM's approval, the requirements of the new
definition for ``eligible land'' at chapter I, section 2(ac), the
revised rules at chapter IV, section 2(d)(x)(E) (I) and (II), and the
revised appendix A for the rules apply. They require that, except where
a lesser density is justified from premining conditions in accordance
with appendix A, at least 20 percent of the affected land be restored
to shrub patches supporting an average of one shrub per square meter.
For both the pre-approval and post-approval affected lands, the
operator must seed the areas outside the shrub patches with an approved
seeding mixture that includes shrubs. The existing rule at chapter IV,
section 2(d)(x)(E) specifies this when it states that ``(a)pproved
shrub species and seeding techniques shall be applied to all remaining
surfaces used jointly by livestock and wildlife.'' The proposed rule at
chapter IV, section 2(d)(x)(E)(II) specifies this when it states that
``(a)pproved shrub species and seeding techniques shall be applied to
all remaining grazingland.''
The Federal regulation at 30 CFR 816.116(a)(1) requires the State
regulatory authority to select standards for success and statistically
valid sampling techniques for measuring success and to include them in
an approved regulatory program. The standards proposed by Wyoming and
discussed above constitute such standards and techniques.
30 CFR 816.116(b)(3) requires, for areas developed for fish and
wildlife habitat, success of vegetation to be determined on the basis
of tree and shrub stocking and vegetative ground cover. As further
required at 30 CFR 816.116(b)(3)(i), minimum stocking and planting
arrangements must be specified by the State regulatory authority on the
basis of local and regional conditions and after consultation with and
approval by the State agency responsible for the administration of the
wildlife program. By letter dated March 28, 1996, the Wyoming Game and
Fish Department concurred with the
[[Page 40740]]
proposed shrub density standards (administrative record No. WY-31-18).
Because Wyoming has proposed shrub reestablishment success
standards and statistically valid sampling techniques that should
ensure a vegetative stand which is effective in implementing the
grazingland and fish and wildlife habitat land uses, and because the
State wildlife agency has concurred with the standards for the fish and
wildlife habitat land use, the Director finds that Wyoming's proposed
definition for ``eligible land'' at chapter I, section 2(ac), the
revised rules at chapter IV, section 2(d)(x)(E) (I) and (II), and the
revised appendix A, meet the requirements of 30 CFR 816.116(a)(1) and
816.116(b)(3). Accordingly, the Director approves the proposed rules,
and the appendix to the rules, and removes the required amendment at 30
CFR 950.16(gg).
8. Rule at Chapter I, Section 3(bc)(iii), Definition for
``Grazingland''
On July 8, 1992, OSM at 30 CFR 950.16(q) required Wyoming to revise
its definition for ``grazingland'' in its rules at chapter I, section
2(ba)(iii) to clarify that Wyoming's rule requires that land managed
for grazing must also receive consideration for wildlife use (finding
No. 2, 57 FR 30121, 30123-5). Wyoming proposed to satisfy this required
amendment by adding the phrase ``and occasional use by wildlife'' to
its land use definition for ``grazingland'' at chapter I, recodified
section 2(bc)(iii). With the addition of this phrase, this rule
definition is substantively identical to the statue definition for
grazingland at W.S. 35-11-103(e)(xxvii), which OSM approved in the
above-cited 1992 Federal Register notice. The Director finds that
Wyoming's proposed ``grazingland'' definition at chapter I, recodified
section 2(bc)(iii), is no less effective than the corresponding Federal
land use definition of ``grazingland'' at 30 CFR 701.5. Therefore, the
Director approves the proposed definition and removes the required
amendment at 30 CFR 950.16(q).
9. Rule at Chapter I, Section 2(bc)(xi), Definition for ``Treated
Grazingland''
In its process of adopting the shrub reestablishment standards
included in this amendment, Wyoming realized that there might be an
incentive for operators to mechanically or chemically treat areas to be
permitted in the future. If allowed to do so, the operators could
reduce premining shrub densities so that fewer shrubs would have to be
established on reclaimed lands. At the same time, Wyoming recognized
that removal of shrubs from rangeland is a common management tool. With
these things in mind, Wyoming created the term ``treated grazingland''
as a compromise between these two concerns (administrative record No.
WY-31-18).
At chapter I, section 2(bc)(xi), Wyoming proposed that ``treated
grazingland'' means
grazingland which has been altered to reduce or eliminate shrubs
provided such treatment was applied at least five years prior to
submission of the state program permit application. However,
grazingland altered more than five years prior to submission of the
state program permit application on which full shrubs have
reestablished to a density of at least one per nine square meters
does not qualify as treated grazingland.
In effect, the proposed definition for ``treated grazingland''
creates three classes of grazingland: (1) Grazingland that is affected
after the date of OSM's approval and that was treated less than 5 years
prior to the submission of the permit application; (2) grazingland that
is affected after the date of OSM's approval and that was treated 5 or
more years prior to the submission of the permit application where the
premining shrub density is equal to or greater than one shrub per 9
square meters; (3) grazingland that is affected after the date of OSM's
approval and that was treated 5 or more years prior to the submission
of the permit application where the premining shrub density is less
than one shrub per 9 square meters.
In order to determine the shrub reestablishment standard that
applies to each of these three classes of grazingland, one must apply
the proposed definition for ``treated grazingland'' in conjunction with
the proposed definition for ``eligible land'' at chapter I, section
2(ac); the proposed rule at chapter IV, section 2(d)(x)(E); and
appendix A to the rules at section VIII.E. A discussion of the shrub
reestablishment standards for each of these classes of grazingland
follows.
For the reasons discussed, the Director, approves the proposed
definition for ``treated grazingland'' at chapter I, section 2(bc)(xi),
because the shrub standards set by Wyoming for treated grazingland
strikes a reasonable balance between agricultural interests and
wildlife habitat needs that is not inconsistent with the intent of
SMCRA and the Federal regulations. However, the Director is requiring
Wyoming to clarify the revegetation standard for grazingland that is
affected after the date of OSM's approval and that was treated less
than 5 years prior to the submission of the permit application.
Grazingland that is affected after the date of OSM's approval and
that was treated less than 5 years prior to the submission of the
permit application. As set forth in the proposed definition for
``treated grazingland'' at chapter I, section 2(bc)(xi), grazingland
that is disturbed after the date of OSM's approval of these rules and
that was treated less than 5 years prior to the submission of the
permit application is not ``treated grazingland.'' Because it is not
``treated grazingland,'' it is ``grazingland.'' As set forth in the
definition for ``eligible land'' at chapter I, section 2(ac), this
grazingland is eligible land that is subject to the shrub standard set
forth at chapter IV, section 2(d)(x)(E), which at subsection (I) states
that ``[e]xcept where a lesser density is justified from premining
conditions in accordance with appendix A, at least 20 percent of the
eligible land shall be restored to shrub patches supporting an average
of one shrub per square meter'' (emphasis added).
Given Wyoming's rationale that it wanted to take away any incentive
for an operator permining shrub densities so that fewer shrubs would
have to be established on reclaimed grazinglands, it is not likely that
Wyoming intended that the postmining shrub reestablishment standard
could be a lesser density that was based on the premining, treated
condition. Even so, the language of the rules could be interpreted to
allow this. Alternatively, it's possible that Wyoming intended that any
operator treating grazingland less than 5 years prior to the submission
of the permit application would than automatically have to reclaim to
the maximum standard of at least one shrub per square meter on 20
percent of the eligible land.
There is no direct counterpart definition for `'treated
grazingland'' in the Federal regulations. However, 30 CFR 816.116(b)(1)
requires that standards for success shall be applied in accordance with
the approved postmining land use and, at a minimum, for areas developed
for use as grazingland, the ground cover and production of living
plants on the revegetated area shall be at least equal to that of a
reference area of ``such other success standards approved by the
regulatory authority.''
Because Wyoming's rules are unclear as to the shrub reestablishment
standard for grazingland that is affected after the date of OSM's
approval and that was treated less than 5 years prior to the submission
of the permit application, the Director finds that Wyoming's proposed
definition for ``treated grazingland'' at chapter I, section
[[Page 40741]]
2(bc)(xi), as applied in conjunction with the proposed definition for
``eligible land'' at chapter I, section 2(ac), the proposed rule at
chapter IV, section 2(d)(x)(E)(I), and appendix A to the rules at
section VIII.E, does not clearly satisfy for this class of grazingland
the Federal regulation at 30 CFR 816.116(b)(1) that requires the
regulatory authority to set standards of revegetation success for areas
developed for grazingland. Therefore, the Director is requiring Wyoming
to revise the definition for ``treated grazingland'' at chapter I,
section 2(bc)(xi), to otherwise revise its rules, or to provide OSM
with a policy statement, clarifying the shrub standard for grazingland
that is affected after the date of OSM's approval and that was treated
less than 5 years prior to the submission of the permit application.
Grazingland that is affected after the date of OSM's approval and
that was treated 5 or more years prior to the submission of the permit
application where the premining shrub density is equal to or greater
than one shrub per 9 square meters.--As set forth in the proposed
definition for ``treated grazingland'' at chapter I, section 2(bc)(xi),
grazingland that is disturbed after the date of OSM's approval of these
rules, was treated more than 5 years prior to the submission of the
permit application, and supports a premining shrub density equal to or
greater than one shrub per 9 square meters is not ``treated
grazingland.'' Because it is not ``treated grazingland,'' it is
``grazingland.'' As set forth in the definition for ``eligible land''
at chapter I, section 2(ac), this grazingland is eligible land that is
subject to the shrub standard set forth at chapter IV, section
2.(d)(x)(E), which at subsection (I) states that ``[e]xcept where a
lesser density is justified from premining conditions in accordance
with appendix A, at least 20 percent of the eligible land shall be
restored to shrub patches supporting an average of one shrub per square
meter.'' Thus, the postmining shrub standard for this class of
grazingland is no more than one shrub per square meter on 20 percent of
the land, and possibly less depending upon the premining shrub density.
The Director finds that Wyoming's proposed definition for ``treated
grazingland'' at chapter I, section 2(bc)(xi), as applied in
conjunction with the proposed definition for ``eligible land'' at
chapter I, section 2(ac), the proposed rule at chapter IV, section
2(d)(x)(E)(I), and appendix A to the rules at section VIII.E,
satisfies, for this class of grazingland, the Federal regulation at 30
CFR 816.116(b)(1) that requires the regulatory authority to set
standards of revegetation success for areas developed for grazingland.
Grazingland that is affected after the date of OSM's approval and
that was treated 5 or more years prior to the submission of the permit
application where the premining shrub density is less than one shrub
per 9 square meters (treated grazingland).--As set forth in the
proposed definition for ``treated grazingland'' at chapter I, section
2(bc)(xi), grazingland that is disturbed after the date of OSM's
approval of these rules, was treated more than 5 years prior to the
submission of the permit application, and supports a premining shrub
density of less than one shrub per 9 square meters in ``treated
grazingland.'' Because it is ``treated grazingland,'' it is not
``eligible land'' as defined at chapter I, section 2(ac) and is not
subject to the shrub standard set forth at chapter IV, section
2(d)(x)(E). For this treated grazingland, the operator is required to
reclaim the land in accordance with chapter IV, section 2(d)(x)(E)(II),
which requires that ``(a)pproved shrub species and seeding techniques
shall be applied to all remaining grazingland.'' Thus, no postmining
shrub standard is set for treated grazingland, but the operator is
required to seed for shrubs using approved species and techniques.
The Director agrees with Wyoming that the shrub standard set by
Wyoming for treated grazingland strikes a reasonable balance between
agricultural interest and grazingland habitat needs that is not
inconsistent with the intent of SMCRA and the Federal regulations.
Therefore, the Director finds that Wyoming's proposed definition for
``treated grazingland'' at chapter I, section 2(bc)(xi), as applied in
conjunction with the proposed definition for ``eligible land'' at
chapter I, section 2(ac), and the proposed rule at chapter IV, section
2(d)(x)(E)(II), satisfies, for this class of grazingland, the Federal
regulation at 30 CFR 816.116(b)(1) that requires the regulatory
authority to set standards of revegetation success for areas developed
for grazingland.
10. Rule Chapter II, Section 2(a)(vi)(G)(II), Consultation by the
Wyoming Land Quality Division On Critical Habitat
In its permit application requirements rule at chapter II, section
2(a)(vi)(G)(II), Wyoming proposed that the Wyoming Game and Fish
Department must be contacted by the Wyoming Land Quality Division if
the disruption of critical habitat is likely. At chapter I, section
2(v), Wyoming proposed to define ``critical habitat'' to mean the
habitat of those threatened and endangered species listed by the
Secretary of the Interior or Commerce in accordance with 50 CFR 17
parts and 226.
Wyoming's existing performance standard rule at chapter IV, section
2(r)(i)(E) requires an operator to promptly report to the Wyoming Land
Quality Division any threatened or endangered species or critical
habitat of such species, which was not reported or investigated in the
permit application. Upon such notification, the Administrator of the
Wyoming Land Quality Division is required to consult with the Wyoming
Game and Fish Department and the U.S. Fish and Wildlife Service.
The Federal regulations at 30 CFR 780.16(a) require the regulatory
authority to consult with State and Federal agencies with
responsibilities for fish and wildlife. 30 CFR 780.16(a)(2)(i) requires
site-specific resource information for listed or proposed endangered or
threatened species of plants or animals or their critical habitats
listed by the Secretary of the Interior under the Endangered Species
Act of 1973, as amended (16 U.S.C. 1531 et seq.). The U.S. Fish and
Wildlife Service is responsible for listing, recovery, administration,
and prohibitions associated with threatened and endangered species
designated under this Act. Therefore, 30 CFR 780.16(a) and (a)(2)(i)
require the regulatory authority to consult with the Fish and Wildlife
Service on critical habitat for Federally-listed threatened and
endangered species.
Because Wyoming's proposed rule at chapter II, section
2(a)(vi)(G)(II) does not require consultation with the U.S. Fish and
Wildlife Service on critical habitat, it is not consistent with its
existing rule at chapter IV, section 2(r)(i)(E) and is less effective
than the Federal regulations at 30 CFR 780.16(a) and (a)(2)(i).
Therefore, the Director approves the proposed rule at chapter II,
section 2(a)(vi)(G)(II) but requires Wyoming to revise it to require
consultation with the U.S. Fish and Wildlife Service on critical
habitat.
11. Rule at Chapter X, Section 4(e), Disturbance of Critical, Crucial,
and Important Habitats by Exploration Operations
In its rule at chapter X, section 4(e), Wyoming proposed to
prohibit coal exploration operations on critical habitat and crucial
habitat, but to allow coal exploration operations on important habitat
after consultation with the Wyoming Game and Fish Department.
[[Page 40742]]
The Federal regulations at 30 CFR 815.15(a) prohibit the
disturbance of ``habitats of unusually high value for fish [and]
wildlife'' by coal exploration operations. As described in 30 CFR
780.16(a)(2)(ii), these habitats include ``important streams, wetlands,
riparian areas, cliffs supporting raptors, areas offering special
shelter or protection, migration routes, or reproduction and wintering
areas.'' This description coincides with Wyoming's proposed definition
for ``important habitat'' at chapter I, section 2(ax), which states
that ``important habitat'' includes ``wetlands, riparian areas,
rimrocks, areas offering special shelter or protection, reproduction
and nursery areas, and wintering areas.'' Therefore, Wyoming's
``important habitat'' is a ``habitat of unusually high value'' as
described in the Federal regulations.
Because Wyoming's proposed rule at chapter X, section 4(e) does not
prohibit the disturbance of ``important habitat'' by coal exploration
operations it is less effective than the corresponding Federal
regulation at 30 CFR 815.15(a). The Director approves the proposed rule
but requires Wyoming to revise it to prohibit the disturbance of
``important habitat'' by coal exploration operations.
12. Rules at Chapter XIII, Section 3(a), Notice and Opportunity for
Public Hearing on Permit Revision
At chapter XIII, section 3(a), Wyoming proposed that the
applicant's newspaper notice for a significant permit revision shall
contain the information required by W.S. 35-11-406(j), the permit
number and date approved, and a general description of the proposed
revision. W.S. 35-11-406(j) requires the notice to contain information
regarding the identity of the applicant, the location of the proposed
operation, the proposed dates of commencement and completion of the
operation, the proposed future use of the affected land, the location
at which information about the application may be obtained, and the
location and final date for filing objections to the application.
In setting forth in corresponding Federal notice requirements for
significant permit revisions, 30 CFR 774.13(b)(2) references 30 CFR
773.13. 30 CFR 773.13(a)(1) itemizes the information that must be
included in an applicant's newspaper notice.
Proposed chapter XIII, section 3(a) includes some notice
requirements that are not included in the corresponding Federal
regulations at 30 CFR 774.13(b)(2) and 773.13(a)(1). These include: The
proposed dates of commencement and completion of the operation, the
proposed future use of the affected land, the permit number and date
approved, and a general description of the proposed revision. These
additional requirements are not inconsistent with 30 CFR 774.13(b)(2)
and 773.13(a)(1). Aside from these requirements, proposed chapter XIII,
section 3(a) also includes, with two exceptions, all of the
requirements of the counterpart Federal requirements at 30 CFR
774.13(b)(2) and 773.13(a)(1). The exceptions are that the proposed
State rule does not include counterparts to 30 CFR 773.13(a)(1)(v) and
(vi) respectively concerning notice of permit request to mine within
100 feet of the outside right-of-way of a public road or to relocate or
close a public road, and permit request for experimental practice.
Although proposed chapter XIII, section 3(a) does not include these
requirements, it need not do so because they are included elsewhere in
Wyoming's regulations at chapter XII, section 1(a)(v)(D) and chapter
XII, section 1(a)(ii)(B). For these reasons, Wyoming's proposed
newspaper notice requirements for permit revisions at chapter XIII,
section 3(a) are no less effective than the corresponding notice
requirements of the Federal regulations at 30 CFR 774.13(b)(2) and
773.13(a)(1).
At chapter XIII, section 3(a), Wyoming also proposed that the
operator shall mail a copy of the application mine plan map the Wyoming
Oil and Gas Commission.
As previously discussed, the Federal regulations at 30 CFR
774.13(b)(2) require for significant permit revisions that the
regulatory authority comply with the notice requirements at 30 CFR
773.13. The Federal regulations at 30 CFR 773.13(a)(3) require the
regulatory authority, upon receipt of a significant revision to a
permit under 30 CFR 774.13, to issue a written notification indicating
the applicant's intention to mine the described tract of land, the
application number or other identifier, the location where the copy of
the application may be inspected, and the location where comments on
the application may be submitted. It further requires the regulatory
authority to send the notification to all State governmental agencies
with an interest in the proposed operation.
The proposed State requirement at chapter XIII, section 3(a)
differs from the Federal requirements at 30 CFR 774.13(b)(2) and
773.13(a)(3) in that the permit revision applicant, rather than the
regulatory authority, is required to notify the interested State
agency. Although this difference is substantive, it does not make the
proposed State rule less effective than the Federal regulations,
because the Federal requirement for notifying the interested State
agency are met.
In conclusion, for the aforementioned reasons, Wyoming's proposed
rule at Chapter XIII, section 3(a) is no less effective than the
corresponding Federal regulations at 30 CFR 774.13(b)(2), 773.13(a)(1),
and 773.13(a)(3). Therefore, the Director approves the proposed
revisions to the rule.
13. Rule at Chapter XVII, Section 1(a), Lands Unsuitable for Mining and
Definition for ``Fragile Lands''
Wyoming proposed to revise its definition for ``fragile lands'' in
its rule at chapter XVII, section 1, which pertains to the designation
of areas unsuitable for surface coal mining. Wyoming proposed to add
crucial or important habitats for fish or wildlife to the list of lands
that constitute ``fragile lands.'' It also proposed that ``critical
habitats for endangered species,'' rather than just `'critical habitats
for endangered species of plants,'' (emphasis added) are ``fragile
lands.''
The corresponding Federal definition for ``fragile lands'' at 30
CFR 762.5 states that `'valuable habitats for fish or wildlife'' are
examples of fragile lands. Instead of using this term, Wyoming uses the
term ``crucial or important habitat.'' Because ``crucial habitat'' and
``important habitat,'' as defined by Wyoming in its rules at chapter I,
sections 2(ax) and (w) (see findings No. 4), are ``valuable habitats
for fish or wildlife'' as used in the Federal definition, Wyoming's
listing of these habitats in its proposed definition for ``fragile
land'' is consistent with the Federal definition for ``fragile land.''
The Federal definition for ``fragile lands'' at 30 CFR 762.5
further states that ``critical habitats for endangered or threatended
species of animals or plants'' (emphasis added) are examples of fragile
lands. In its proposed definition for ``fragile lands,'' Wyoming does
not use the emphasized words ``threatened'' and ``of animals or
plants.'' However, as defined by Wyoming at chapter I, section 2(v),
``critical habitat'' means ``those areas essential to the survival and
recovery of species listed by the Secretary of the Interior or Commerce
as threatended or endangered'' (emphasis added, see finding No. 3).
Therefore, by using the term ``critical habitat'' in its proposed
definition for ``fragile lands,'' Wyoming protects critical habitats of
threatened species in its process for designating lands unsuitable for
mining. Also, by using the term `'critical habitat'' in its proposed
definition for ``fragile lands,'' Wyoming protects critical habitats of
both plant and animal species, because
[[Page 40743]]
the Secretaries of the Interior and Commerce protect both plant and
animal threatened or endangered species.
For these reasons, Wyoming's proposed definition for ``fragile
lands'' at chapter XVII, section 1(a) is no less effective than the
corresponding Federal definition for ``fragile lands'' at 30 CFR 762.5.
Therefore, the Director approves the proposed definition.
14. Required Amendment at 30 CFR 950.16(hh)
By letters dated February 28, 1994, and September 1, 1994, Wyoming
submitted a description of required amendments, a timetable for
enactment of the amendments, and a request for additional time to
complete the rulemaking associated with the required amendments at 30
CFR 950.16 (aa) through (gg). By final rule Federal Register notice
dated December 23, 1994, OSM extended until November 30, 1995, the
deadline for Wyoming to submit an amendment addressing the required
amendments. OSM codified this deadline extension at 30 CFR 950.16(hh).
Wyoming submitted the amendment, which is the subject of this notice,
on November 29, 1995. Because Wyoming has submitted the amendment, the
Director is removing the required amendment at 30 CFR 950.16(hh).
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
National Wildlife Federation, Wyoming Wildlife Federation, and
Wyoming Outdoor Council.--By letter dated January 16, 1996
(administrative record No. WY-31-09), the National Wildlife Federation,
Wyoming Wildlife Federation, and Wyoming Outdoor Council jointly
commented on W.S. 35-11-402(b)(ii). In this statutory provision, the
Wyoming Land Quality Division proposed that, to the extent required by
federal law or regulations, it would have to obtain the approval of the
Wyoming Game and Fish Department for reclamation standards for
``grazingland'' as defined at W.S. 35-11-103(e)(xxvii), if the
grazingland includes crucial habitat designated by the Wyoming Game and
Fish Department ``prior to submittal of the initial permit application
or any subsequent amendments to the permit application.''
The commenters started that the quoted part of the provisions
places a restriction on the protection of crucial habitat that is not
consistent with section 515(b)(2) of SMCRA, which requires that all
surface coal mining operations shall at a minimum ``restore the land
affected to a condition capable of supporting the uses which it was
capable of supporting prior to any mining, or higher or better uses * *
*'' (emphasis added by commenters). They argue that there can be no
restoration to the land's prior wildlife capabilities if the Wyoming
Game and Fish Department cannot update crucial habitat areas after the
initial permit application.
The commenters also cited section 515(b)(24), which requires that
mine operators `'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
commenters stated that this provision cannot be carried out if the
Wyoming Game and Fish Department cannot add to crucial habitat maps
after the initial permit application.
In addition, the Wyoming Outdoor Council (Council) by letter dated
January 22, 1996 (administrative record No. WY-31-13), stated that,
although most big game crucial ranges in Wyoming are well defined, the
Wyoming Game and Fish Department has not, because of only having three
nongame biologists for all of Wyoming's 98,000 square miles, identified
crucial habitats for a broad range of species, including raptors, sage
and sharp tail grouse, and ``state priority species.'' The Council
stated that it is conceivable that a permit applicant's baseline
wildlife information could reveal crucial habitats previously
unrecognized by the Wyoming Game and Fish Department. The Council
stated that the proposed statutory provision makes the collection of
wildlife baseline data trivial if these data cannot be used to make
certain resource determinations and then base management prescriptions
on these determination (i.e., wildlife data included in permit
application cannot be used as a basis for designating, protecting, and
enhancing crucial habitat).
The Council cited 30 CFR 780.16(a), which requires that
[e]ach application shall include fish and wildlife resource
information for the permit area and adjacent area. The scope and
level of detail for such information * * * shall be sufficient to
design the protection and enhancement plan required under (b) of
this section.
Referenced 30 CFR 780.16(b), at subsection (2), requires that
[e]ach application shall include a description of how, to the extent
possible using the best technology currently available, the operator
will minimize disturbances and adverse impacts on fish and wildlife.
* * * This description shall--apply at a minimum to species and
habitats identified under paragraph (a) of this section.
The Council concluded that the restriction that proposed W.S. 35-
11-402(b)(ii) places on the protection and enhancement of crucial
habitat is a violation of 30 CFR part 780.
OSM considered these comments in its review of proposed W.S. 35-11-
402(b)(ii). For the reasons discussed in finding No. 5 and below, OSM
does not agree that proposed W.S. 35-11-402(b)(ii) is less effective
than SMCRA and the Federal regulations.
Wyoming's permit application rules at chapter II, section
2(a)(vi)(D)( require studies of wildlife and their habitats in the
level of detail as determined by the Wyoming Land Quality Division,
after consultation with the Wyoming Game and Fish Department. The
purpose of these baseline studies is to identify valuable wildlife
habitats so that the permit applicant can be required to plan mining
and reclamation operations to minimize wildlife impacts. If these
studies reveal valuable wildlife habitat on grazingland, the permit
applicant would be required to accordingly plan mining and reclamation
operations to minimize wildlife impacts, regardless of whether the
Wyoming Game and Fish Department subsequently (after initial permit or
amendment application) designated the valuable habitat as critical
habitat. If the crucial habitat designation on grazing land did occur
after initial permit or amendment application, the Wyoming Land Quality
Division would not under W.S. 35-11-402(b)(ii) have to obtain Wyoming
Game and Fish Department approval of shrub revegetation standards, but,
assuming that the habitat was at least important habitat, it would
still have to solicit the Wyoming Game and Fish Department's
recommendations. The Wyoming Land Quality Division has an obligation to
afford good-faith considerations to all Wyoming Game and Fish
Department recommendations regarding protection, restoration, and
enhancement of wildlife resources, regardless of the postmining land
use.
In addition to the aforementioned permitting requirements, the
permit applicant would not be relieved of the responsibility to meet
the performance
[[Page 40744]]
standards in Wyoming's rules at chapter IV, section 2(r), which
requires an operator, to the extent possible using the best technology
currently available and consistent with the approved postmining land
use, minimize disturbance, and where practicable, enhance wildlife
resources.
University of Wyoming.--The Head of the Department of Plant, Soil,
and Insect Sciences, University of Wyoming, responded but had no
comments on the amendment (administrative record No. WY-31-16).
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Wyoming program.
U.S. Bureau of Mines.--By letter dated December 21, 1995, the U.S.
Bureau of Mines, Division of Environmental Technology, responded that
it had no comments on the amendment (administrative record No. WY-31-
06).
U.S. Army Corps of Engineers.--By letter dated December 27, 1995,
the U.S. Army Corps of Engineers responded that it found the amendment
to be satisfactory (administrative record No. WY-31-07).
U.S. Department of Agriculture, Natural Resources Conservation
Service (NRCS).--By letter dated January 12, 1996, NRCS responded with
comments (administrative record No. WY-31-10).
NRCS recommended that the proposed land use definition of
``grazingland'' at chapter I, section 2(bc)(iii) be revised to read:
``Grazingland includes rangelands and forest lands where the indigenous
native vegetation is actively managed for grazing, browsing, occasional
mechanical forage harvesting, and may also be used by wildlife.'' OSM
made Wyoming aware of this recommendation, but it did not require
Wyoming to revise the proposed definition because, as discussed in
finding No. 8, it is no less effective than the corresponding Federal
land use definition for ``grazingland'' at 30 CFR 701.5.
NRCS commented on the proposed rule at chapter II, section
2(b)(iv)(C), which includes requirements for permit application
revegetation plans. The existing, unrevised language of this rule
indicates that the ``[t]he standards and specifications adopted by the
State Conservation Commission for mine reclamation shall be considered
by the applicant during the preparation of the reclamation plan
whenever practicable.'' NRCS stated that the State Conservation
Commission is no longer in existence and that the State Board of
Agriculture now has this former Commission's responsibilities; it also
stated that the rule should indicate where the referenced standards and
specifications can be obtained. In its March 8, 1996, issue letter, OSM
notified Wyoming of this comment. In its April 9, 1996, response,
Wyoming confirmed that the State Conservation Commission has disbanded
and been replaced by the State Board of Agriculture. Wyoming stated
that this Board does not have the responsibility for setting standards
and specifications for mine reclamation. Therefore, Wyoming indicated
it would in the future propose to OSM that the above-quoted sentence be
deleted from the rule. Wyoming noted that another provision of the
rule, which requires consultation with the Wyoming Department of
Agriculture on croplands, will be retained because the Federal
regulations at 30 CFR 780.23(a)(2)(ii) require consultation with such
State agricultural agencies.
Bureau of Land Management.--By letter dated January 18, 1996, the
Bureau of Land Management, Rock Springs District Office (BLM-RSDO),
responded with comments (administrative record No. WY-31-12). Those
comments that relate to proposed amendment revisions are discussed
below. Other comments that relate to rules that are not proposed for
revision in this amendment have been included in the administrative
record for Wyoming's future consideration.
BLM-RSDO commented that the land use definition for ``grazingland''
in the proposed rule at chapter I, section 2(bc)(iii), should be
revised by deleting the proposed phrase ``and occasional use by
wildlife.'' In making this comment, BLM-RSDO was apparently unaware
that Wyoming was adding the phrase ``and occasional use by wildlife''
in response to the required amendment at 30 CFR 950.16(q) that OSM
placed on the Wyoming program. For a discussion of the required
amendment and proposed definition, which the Director is approving, see
finding No. 8.
BLM-RSDO commented that the revisions proposed in the land use
definition for ``fish and wildlife habitat'' in the proposed rule at
chapter I, section 2(bc)(viii) should not be made and that the
definition should remain unchanged. As discussed in finding No. 1, the
Director is approving the proposed definition because it is
substantively identical to the corresponding Federal land use
definition for ``fish and wildlife habitat'' at 30 CFR 701.5.
BLM-RSDO submitted comments on appendix A, section VIII.E (testing
of adequacy of reclamation, evaluation of shrub density) questioning
why treated grazingland was not subject to the standard of one shrub
per square meter on the 20 percent of the affected area that is set
forth in the rules at chapter IV, section 2(d)(x)(E). As discussed in
finding No. 9 and as set forth in the proposed definition for ``treated
grazingland'' at chapter I, section 2(bc)(xi), grazingland that is
disturbed after the date of OSM's approval of these rules, was treated
more than 5 years prior to the submission of the permit application,
and supports a premining shrub density of less than one shrub per 9
square meters is ``treated grazingland.'' As discussed in the finding,
the Director agrees with Wyoming that the shrub standard set by Wyoming
for treated grazingland strikes a reasonable balance between
agricultural interests and wildlife habitat needs that is not
inconsistent with the intent of SMCRA and the Federal regulations.
Lastly, BLM-RSDO commented that the list of plant species of
special concern in appendix A, appendix IV, should be updated with 1995
data from the Wyoming Natural Diversity Database. OSM included this
comment in its March 9, 1996, issue letter to Wyoming. In response,
Wyoming stated that it would, through the rulemaking process and in
some future amendment, remove the list from appendix A and instead
refer the reader to the Wyoming Natural Diversity Database Office for a
current list of plant species of special concern.
By letter dated January 18, 1996, BLM, Wyoming State Office (BLM-
WSO), responded with a comment on the proposed rule at chapter XIII,
section 3(a) (administrative record No. WY-31-15). Wyoming proposed to
revise the rule to require coal operators to mail copies of significant
permit revision maps to the Wyoming Oil and Gas commission, rather than
owners of record, in accordance with W.S. 35-11-406(j). BLM-WSO
recommended that the rule be revised to require coal operators to mail
pertinent maps to all oil and gas operators within the permit area. OSM
did not require Wyoming to make this recommended revision because the
Federal regulations at 30 CFR 774.13(b)(2) and 773.13(a)(3) do not
require it. As discussed in finding No. 12, the Director is approving
the proposed rule on the basis that it is no less effective than the
corresponding Federal regulations.
U.S. Fish and wildlife Service (FWS).--By letter dated January 19,
[[Page 40745]]
1996, FWS responded with comments (administrative record No. WY-31-11).
FWS commented that the rules in several places require consultation
with the Wyoming Game and Fish Department on minimum stocking and
planting arrangements of trees and shrubs on critical habitats, which
Wyoming defines as those areas essential to the survival and recovery
of species listed by the Secretaries of the Interior and Commerce as
threatened or endangered. FWS stated that consultation on Federally
designated critical habitats must occur with FWS and cannot be
delegated to a State agency.
OSM agreed with FWS's comment and notified Wyoming in the March 8,
1996, issue letter that, to be no less effective than the Federal
permit application at 30 CFR 780.16(a) and (a)(2)(i), Wyoming must
revise its proposed rule at chapter II, section 2(a)(vi)(G)(II) to
require consultation with FWS on critical habitat. In its April 9,
1996, response to the issue letter, Wyoming acknowledged the need to
revise the rule, and it will do so in the future. As discussed in
finding No. 10 of this notice, the Director finds that Wyoming's
proposed rule at chapter II, section 2(a)(vi)(G)(II) is less effective
than the Federal regulations at 30 CFR 780.16(a) and (a)(2)(i).
Therefore, the Director is requiring Wyoming to revise the rule to
require consultation with FWS on critical habitat.
FWS also commented that Wyoming's Enrolled Act No. 8, which limits
some alterations to crucial habitat designations by the Wyoming Game
and Fish Department, seems to conflict with the intent of SMCRA and
could affect habitats of value to migratory birds and other species of
high Federal interest. For a response to this general comment on W.S.
35-11-402(b)(ii), see the above responses to the comments on this
section of the Wyoming's statute from the National Wildlife Federation,
Wyoming Wildlife Federation, and Wyoming Outdoor Council.
Mine Safety and Health Administration.--By letter dated January 24,
1996, the Mine Safety and Health Administration responded but had no
comments on the amendment (administrative record No. WY-31-14).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Wyoming proposed to make in its amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. WY-31-03). It
did not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
WY-31-04). By letter dated January 4, 1996, the SHPO indicated he had
no objections to the proposed amendment (administrative record No. WY-
31-08). ACHP did not respond to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with additional
requirements, Wyoming's proposed amendment as submitted on November 29,
1995.
The Director approves, as discussed in:
Finding No. 1, revision of the land use definition for ``fish and
wildlife habitat'' at chapter I, section 2(bc)(viii), and revision of
chapter XI, section 5(a), substitution of a surety bond for a self-
bond;
Finding No. 2, deletion of the definition for ``agricultural
lands'' at W.S. 35-11-103(e)(xxviii);
Finding No. 3, deletion of the definition for ``critical habitat''
at W.S. 35-11-103(e)(xxix) and revision of the definition for
``critical habitat`` at chapter I, section 2(v);
Finding No. 4, deletion of the definition for ``crucial habitat''
at W.S. 35-11-103(e)(xxx), addition of the definition for ``crucial
habitat'' at chapter I, section 2(w), and revision of the definition
for ``important habitat'' at chapter I, section 2(ax);
Finding No. 6, revision of W.S. 25-11-402(c), establishment of
shrubs on grazingland;
Finding No. 7, addition of the definition for ``eligible land'' at
chapter I, section 2(ac), and revision of chapter IV, section
2(d)(x)(E) (I) and (II), and appendix A, reclamation success standards
for shrub density;
Finding No. 8, revision of the land use definition for
``grazingland'' at chapter I, section 2(bc)(iii);
Finding No. 12, revision of chapter XIII, section 3(a), notice and
opportunity for public hearing on permit revision; and
Finding No. 13, revision of the definition for ``fragile lands'' at
chapter XVII, section 1(a), with respect to designation of lands
unsuitable for mining.
With the requirement that Wyoming further revise its rules and/or
statute, the Director approves, as discussed in:
Finding No. 5, revision of W.S. 35-11-402(b), chapter II, section
2(b)(iv)(C), and chapter IV, sections 2(d)(x)(E) and (E)(III),
establishment of reclamation standards for fish and wildlife habitat
and grazingland;
Finding No. 9, addition of the land use definition for ``treated
grazingland'' at chapter I, section 2(bc)(xi);
Finding No. 10, revision of chapter II, section 2(a)(vi)(G)(II),
consultation by the Wyoming Land Quality Division on critical habitat;
and
Finding No. 11, revision of chapter X, section 4(e), disturbance of
critical, crucial, and important habitats by exploration operations.
The Federal regulations at 30 CFR part 950, codifying decisions
concerning the Wyoming program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage states to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments
[[Page 40746]]
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR parts
730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
6. Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 24, 1996.
Peter A. Rutledge,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 950--WYOMING
1. The authority citation for part 950 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 950.15 is amended by adding paragraph (x) to read as
follows:
Sec. 950.15 Approval of regulatory program amendments.
* * * * *
(x) The following statutes and rules, as submitted to OSM on
November 29, 1995, are approved effective August 6, 1996: Deletion of
W.S. 35-11-103(e)(xxviii), definition for ``agricultural lands;'' W.S.
35-11-103(e)(xxix) and the rule at chapter I, section 2(v), definition
for ``critical habitat;'' W.S. 35-11-103(e)(xxx) and the rules at
chapter I, sections 2(ax) and (w), definitions for ``important
habitat'' and ``crucial habitat;'' W.S. 35-11-402(b), reclamation
standards for fish and wildlife habitat and grazingland; W.S. 35-11-
402(c), establishment of shrubs on grazingland; rules at chapter I,
section 2(ac), chapter IV, section 2(d)(x)(E)(I) and (II), and appendix
A, definition for ``eligible land'' and reclamation success standards
for shrub density; rule at chapter I, section 2(bc)(iii), definition
for ``grazingland;'' rule at chapter I, section 2(bc)(viii), land use
definition for ``fish and wildlife habitat;'' rule at chapter I,
section 2(bc)(xi), definition for ``treated grazingland;'' rule at
chapter XI, section 5(a), substitution of a surety bond for a self-
bond; rule at chapter XIII, section 3(a) notice and opportunity for
public hearing on permit revision; rule at chapter XVII, section 1(a),
lands unsuitable for mining and definition for ``fragile lands;'' the
rules at chapter II, section 2(b)(iv)(C), and chapter IV, section
2(d)(x)(E)(III), establishment of reclamation standards for fish and
wildlife habitat and grazingland; rule at chapter II, section
2(a)(vi)(G)(II), consultation by the Wyoming Land Quality Division on
critical habitat; and rule at chapter X, section 4(e), disturbance of
important habitat by exploration operations.
3. Section 950.16 is amended by removing and reserving paragraphs
(q) and (bb) through (hh) and adding paragraphs (ii) though (ll) to
read as follows:
Sec. 950.16 Required program amendments.
* * * * *
(ii) By May 30, 1997, Wyoming shall
(1) Revise the rules at chapter II, section 2(b)(iv)(C), and
chapter IV, section 2(d)(x)(E)(III), to be consistent with the statute
at W.S. 35-11-402(b)(ii) by requiring Wyoming Game and Fish Department
approval of revegetation standards for grazingland that was designated
by the Wyoming Game and Fish Department as crucial habitat prior to
submittal of the initial permit application or any subsequent
amendments to the permit application; or revise the statute at W.S. 35-
11-402(b)(ii) to be consistent with the rules at chapter II, section
2(b)(iv)(C), and chapter IV, section 2(d)(x)(E)(III) by deleting the
phrase ``prior to submittal of the initial permit application or any
subsequent amendments to the permit application;'' and
(2) Revise the rules at chapter II, section 2(b)(iv)(C), and
chapter IV, section 2(d)(x)(E)(III), to require consultation with and
approval by the Wyoming Game and Fish Department of tree and shrub
standards for all lands to be reclaimed for the ``fish and wildlife
habitat'' land use.
(jj) By May 30, 1997, Wyoming shall revise the definition for
``treated grazingland'' at chapter I, section 2(bc)(xi), otherwise
revise its rules, or provide OSM with a policy statement, clarifying
the shrub standard for grazingland that is affected after the date of
OSM's approval and that was treated less than 5 years prior to the
submission of the permit application.
(kk) By May 30, 1997, Wyoming shall revise the rule at chapter II,
section 2(a)(vi)(G)(II), or otherwise modify its program, to require
consultation with the U.S. Fish and Wildlife Service on critical
habitat.
(ll) By May 30, 1997, Wyoming shall revise the rule at chapter X,
section 4(e), or otherwise modify its program, to prohibit the
disturbance of important habitat by coal exploration operations.
[FR Doc. 96-19735 Filed 8-5-96; 8:45 am]
BILLING CODE 4310-05-M