[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Rules and Regulations]
[Pages 75814-75885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29150]



[[Page 75813]]

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Part II





Department of the Interior





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 Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 780, 784, et al.



Excess Spoil, Coal Mine Waste, and Buffers for Perennial and 
Intermittent Streams; Final Rule

  Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / 
Rules and Regulations  

[[Page 75814]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 780, 784, 816, and 817

[Docket ID No.: OSM-2007-0007]
RIN 1029-AC04


Excess Spoil, Coal Mine Waste, and Buffers for Perennial and 
Intermittent Streams

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are amending our regulations concerning stream buffer zones, 
stream-channel diversions, siltation structures, impoundments, excess 
spoil, and coal mine waste. Among other things, this rule requires that 
surface coal mining operations be designed to minimize the creation of 
excess spoil and the adverse environmental impacts of fills constructed 
to dispose of excess spoil and coal mine waste. We have revised the 
stream buffer zone rule to more closely reflect the underlying 
provisions of the Surface Mining Control and Reclamation Act of 1977 
(SMCRA), to adopt related permit application requirements, to require 
that disturbance of perennial and intermittent streams and their buffer 
zones generally be avoided unless it is not reasonably possible to do 
so, to identify exceptions to the requirement to maintain an 
undisturbed buffer zone for perennial and intermittent streams, and to 
clarify the relationship between SMCRA and the Clean Water Act.

DATES: This rule is effective January 12, 2009. The incorporation by 
reference of the publication listed in the rule is approved by the 
Director of the Federal Register as of January 12, 2009.

FOR FURTHER INFORMATION CONTACT: 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.
    You can find additional information concerning OSM, this rule, and 
related documents on OSM's home page on the Internet at http://www.osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What does SMCRA say about surface coal mining operations in or 
near streams?
II. What provisions of SMCRA form the basis for our stream buffer 
zone rules?
III. What is the history of our stream buffer zone rules?
    A. Legislative History of SMCRA
    B. Initial Regulatory Program
    C. Permanent Regulatory Program (1979 Rules)
    D. Permanent Regulatory Program Revisions (1983 Rules)
    E. How has the 1983 stream buffer zone rule been applied and 
interpreted?
    F. What rulemaking actions have we proposed to clarify the 1983 
rule?
IV. What is the relationship between SMCRA and the Clean Water Act 
with respect to this rule?
V. How did we obtain public input?
VI. What general comments did we receive on the proposed rule?
    A. We Should Discourage the Mining and Use of Coal as a Power 
Source Because of the Role That the Combustion of Coal Plays in 
Climate Change
    B. We Should Withdraw the Proposed Rule and Enforce the 1983 
Stream Buffer Zone, the Meaning of Which Is Clear as Written
    C. We Should Not Adopt Any Rule That Facilitates Mountaintop 
Mining Operations or the Filling of Streams
    D. We Should Ensure the Protection of Headwater Streams by 
Requiring Maintenance of an Undisturbed Buffer Between Mining 
Activities and Streams
    E. We Have Not Accorded Sufficient Importance to the 
Environmental Protection Purposes of SMCRA
    F. EPA Cannot Legally Concur With the Revised Stream Buffer Zone 
Rules Because They Violate the Clean Water Act
    G. The Applicability of the Final Rules Should Be Limited to 
Steep-Slope Areas and Mountaintop Removal Operations
    H. The Stream Buffer Zone Rule Is Unnecessary and Should Be 
Removed in Its Entirety
VII. Why did we decide against applying the stream buffer zone rule 
to all waters of the United States (WOTUS)?
VIII. Section-by-section analysis: How are we revising our rules?
    A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans
    B. Sections 780.25 and 784.16: Reclamation Plan: Siltation 
Structures, Impoundments, Refuse Piles, and Coal Mine Waste 
Impounding Structures
    C. Sections 780.28 and 784.28: Activities in or Adjacent to 
Perennial or Intermittent Streams
    D. Section 780.35: Disposal of Excess Spoil (Surface Mines)
    E. Section 784.19: Disposal of Excess Spoil (Underground Mines)
    F. Sections 816.11 and 817.11: Signs and Markers
    G. Sections 816.43 and 817.43: Diversions
    H. Sections 816.46 and 817.46: Siltation Structures
    I. Sections 816.57 and 817.57: Activities in or Adjacent to 
Perennial or Intermittent Streams
    J. Sections 816.71 and 817.71: General Requirements for Disposal 
of Excess Spoil
    K. What Does the Phrase ``to the extent possible'' mean in these 
rules?
    L. What does the phrase ``best technology currently available'' 
mean in these rules?
IX. Procedural Matters and Required Determinations

I. What does SMCRA say about surface coal mining operations in or near 
streams?

    SMCRA contains three references to streams, two references to 
watercourses, and several provisions that indirectly refer to 
activities in or near streams.
    Section 507(b)(10) \1\ requires that permit applications include 
``the name of the watershed and location of the surface stream or 
tributary into which surface and pit drainage will be discharged.'' 
However, this provision has no relevance to mining-related activities 
in or near streams or to the existing or proposed buffer zone rules.
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    \1\ 30 U.S.C. 1257(b)(10). SMCRA, Pub. L. 95-87, is codified at 
30 U.S.C. 1201-1328. Thus, for example, SMCRA section 102 is 
codified at 30 U.S.C. 1202, SMCRA section 515 is codified at 30 
U.S.C. 1265, and SMCRA section 516 is codified at 30 U.S.C. 1266.
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    Section 515(b)(18) requires that surface coal mining and 
reclamation operations ``refrain from the construction of roads or 
other access ways up a stream bed or drainage channel or in such 
proximity to such channel so as to seriously alter the normal flow of 
water.''
    Section 516(c) requires the regulatory authority to suspend 
underground coal mining under permanent streams if an imminent danger 
to inhabitants exists. However, this provision is not relevant to a 
discussion of the stream buffer zone rules because, in response to 
litigation concerning the 1983 version of 30 CFR 817.57, we stipulated 
that ``this regulation is directed only to disturbance of surface lands 
by surface activities associated with underground mining.'' In re: 
Permanent Surface Mining Regulation Litigation II-Round II, 21 ERC 
1725, 1741, footnote 21 (D.D.C. 1984).
    Section 515(b)(22)(D) provides that sites selected for the disposal 
of excess spoil must ``not contain springs, natural water courses or 
wet weather seeps unless lateral drains are constructed from the wet 
areas to the main underdrains in such a manner that filtration of the 
water into the spoil pile will be prevented.'' In adopting this 
provision, Congress could have chosen to exclude perennial and 
intermittent streams (or other waters) from the scope of ``natural 
water courses,'' but it did not do so. In addition, the fact that this 
provision of the Act authorizes disposal of excess spoil in areas 
containing natural watercourses, springs, and seeps further suggests 
that Congress did not intend to prohibit placement of excess spoil in 
perennial or intermittent

[[Page 75815]]

streams. The term ``natural watercourses'' includes all types of 
streams--perennial, intermittent, and ephemeral. Springs and seeps are 
groundwater discharges. To the extent that those discharges provide 
intermittent or continuous flow in a channel, they are included within 
the scope of our definitions in 30 CFR 701.5 of ``intermittent stream'' 
and ``perennial stream,'' respectively. The definition of 
``intermittent stream,'' which is based upon technical literature, 
includes any ``stream or reach of a stream that is below the local 
water table for at least some part of the year, and obtains its flow 
from both surface runoff and ground water discharge.'' Furthermore, in 
litigation under the Clean Water Act, the U.S. Court of Appeals for the 
Fourth Circuit cited section 515(b)(22) of SMCRA as supporting the 
statement in its decision that ``it is beyond dispute that SMCRA 
recognized the possibility of placing excess spoil material in waters 
of the United States even though those materials do not have a 
beneficial purpose.'' See Kentuckians for the Commonwealth, Inc. v. 
Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003).
    Section 515(c)(4)(D) provides that, in approving a permit 
application for a mountaintop removal operation, the regulatory 
authority must require that ``no damage will be done to natural 
watercourses.'' The regulations implementing this provision clarify 
that the prohibition applies only to natural watercourses ``below the 
lowest coal seam mined.'' See 30 CFR 824.11(a)(9). Furthermore, section 
515(c)(4)(E) of the Act specifies that ``all excess spoil material not 
retained on the mountaintop shall be placed in accordance with the 
provisions of subsection (b)(22) of this section.'' By including this 
proviso, Congress recognized that not all excess spoil generated by 
mountaintop removal operations could be retained on benches or placed 
within the mined-out area. And by cross-referencing section 515(b)(22), 
Congress authorized placement of excess spoil from mountaintop removal 
operations in natural watercourses, provided all requirements of 
section 515(b)(22) are met. In the steep-slope terrain of central 
Appalachia, excess spoil typically can most feasibly be placed in 
valley fills.
    In addition, the legislative history of section 515(f) of SMCRA 
indicates that Congress anticipated that coal mine waste impoundments 
would be constructed in perennial and intermittent streams:

    In order to assure that mine waste impoundments used for the 
disposal of liquid or solid waste material from coal mines are 
constructed or have been constructed so as to safeguard the health 
and welfare of downstream populations, H.R. 2 gives the Army Corps 
of Engineers a role in determining the standards for construction, 
modification and abandonment of these impoundments.
* * * * *
    Thus, the corps' experience and expertise in the area of design, 
construction, maintenance, et cetera, which were utilized for 
carrying out the congressionally authorized surveys of mine waste 
embankments in West Virginia following the disastrous failure of the 
mine waste impoundments on Buffalo Creek, is to be applied in order 
to prevent similar accidents in the future.

H. Rep. No. 95-218; at 125 (April 22, 1977) (emphasis added).
    Section 515(f) provides that--

    The Secretary, with the written concurrence of the Chief of 
Engineers, shall establish within one hundred and thirty-five days 
from the date of enactment, standards and criteria regulating the 
design, location, construction, operation, maintenance, enlargement, 
modification, removal, and abandonment of new and existing coal mine 
waste piles referred to in section 515(b)(13) and section 516(b)(5).

Sections 515(b)(13) and 516(b)(5) concern ``all existing and new coal 
mine waste piles consisting of mine wastes, tailings, coal processing 
wastes, or other liquid and solid wastes and used either temporarily or 
permanently as dams or embankments.'' (Emphasis added.) Sections 
515(f), 515(b)(13), and 516(b)(5) do not specifically mention streams 
or watercourses.
    However, the reference to dams and embankments, the requirement for 
the concurrence of the U.S. Army Corps of Engineers (for its expertise 
in dam construction and flood control), and the legislative history 
documenting that the 1972 Buffalo Creek flood was the driving force 
behind adoption of those SMCRA provisions demonstrate that Congress was 
aware that coal mine waste impoundments had been constructed in 
perennial and intermittent streams in the past and would be constructed 
there in the future. Furthermore, the fact that all three paragraphs 
specifically apply to both new and existing structures (rather than to 
just existing structures) implies that new structures would and could 
be built in streams under SMCRA. As mentioned in the legislative 
history, Congress' intent was to prevent a recurrence of the Buffalo 
Creek impoundment failure and to ensure that all coal mine waste 
impoundments either are or have been constructed in a manner that 
protects the safety of downstream residents. There is no indication 
that Congress intended to prohibit construction of those structures in 
perennial or intermittent streams.
    Finally, sections 515(b)(11) and 516(b)(4) of the Act govern the 
construction of coal refuse piles that are not used as dams or 
embankments. While those paragraphs do not mention constructing refuse 
piles in watercourses, neither do they prohibit such construction. 
Because of the similarity of those piles to excess spoil fills, the 
regulations implementing sections 515(b)(11) and 516(b)(4) incorporate 
language similar to that of section 515(b)(22)(D) for the construction 
of excess spoil disposal facilities. Specifically, the regulations at 
30 CFR 816.83(a)(1) and 817.83(a)(1) allow the construction of non-
impounding coal refuse piles on areas containing springs, natural or 
man-made watercourses, or wet-weather seeps if the design includes 
diversions and underdrains. Not all areas containing springs, 
watercourses, or wet-weather seeps are perennial or intermittent 
streams, but some are, which means that refuse piles may be constructed 
in streams.

II. What provisions of SMCRA form the basis for our stream buffer zone 
rules?

    Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA served as 
the basis for all three previous versions (1977, 1979, and 1983) of the 
stream buffer zone rule with respect to surface mining activities. 
Those sections also serve as the basis for the revised rule at 30 CFR 
816.57 that we are adopting today. Section 515(b)(10)(B)(i) requires 
that surface coal mining operations be conducted so as to prevent the 
contribution of additional suspended solids to streamflow or runoff 
outside the permit area to the extent possible using the best 
technology currently available. Section 515(b)(24) requires that 
surface coal mining and reclamation operations be conducted to minimize 
disturbances to and adverse impacts on fish, wildlife, and related 
environmental values ``to the extent possible using the best technology 
currently available.''
    In context, section 515(b)(10)(B)(i) provides that the performance 
standards adopted under SMCRA must require that surface coal mining and 
reclamation operations--

    (10) minimize the disturbances to the prevailing hydrologic 
balance at the mine-site and in associated offsite areas and to the 
quality and quantity of water in surface and ground water systems 
both during and after surface coal mining operations and during 
reclamation by--
    (A) * * *

[[Page 75816]]

    (B)(i) conducting surface coal mining operations so as to 
prevent, to the extent possible using the best technology currently 
available, additional contributions of suspended solids to 
streamflow, or runoff outside the permit area, but in no event shall 
contributions be in excess of requirements set by applicable State 
or Federal law.
* * * * *

    Section 515(b)(24) requires that surface coal mining and 
reclamation operations be conducted in a manner that--

    To the extent possible using the best technology currently 
available, minimize[s] disturbances and adverse impacts of the 
operation on fish, wildlife, and related environmental values, and 
achieve[s] enhancement of such resources where practicable.

    The common thread in both provisions is the requirement for use of 
the best technology currently available to achieve the requirements of 
those provisions to the extent possible.
    Paragraphs (b)(9)(B) and (11) of section 516 of SMCRA form the 
basis for the stream buffer zone rule at 30 CFR 817.57, which applies 
to surface activities associated with underground mines. Those 
provisions of section 516 are substantively equivalent to paragraphs 
(b)(10)(B)(i) and (24) of section 515 of SMCRA, respectively, except 
that section 516(b)(9)(B) also includes the provisions found in section 
515(b)(10)(E) regarding the avoidance of channel deepening or 
enlargement. In the remainder of this preamble, we often refer only to 
the section 515 paragraphs, with the understanding that, unless 
otherwise stated or implied by context, references to those paragraphs 
should be read as including their section 516 counterparts.

III. What is the history of our stream buffer zone rules?

A. Legislative History of SMCRA

    SMCRA does not establish or require a buffer zone for streams or 
other waters. In 1972, the U.S. House of Representatives passed a bill 
(H.R. 6482) that included a flat prohibition on mining within 100 feet 
of any ``body of water, stream, pond, or lake to which the public 
enjoys use and access, or other private property.'' This prohibition 
appeared in the counterpart to what is now section 522(e) of the Act. 
However, the bill never became law and the provision did not appear in 
subsequent versions of SMCRA legislation.

B. Initial Regulatory Program

    As part of the regulations implementing the initial regulatory 
program under SMCRA, we adopted the concept of a 100-foot buffer zone 
around intermittent and perennial streams as a means ``to protect 
stream channels from abnormal erosion'' from nearby upslope mining 
activities. See 30 CFR 715.17(d)(3) and 42 FR 62652 (December 13, 
1977). The regulation reads as follows:

    No land within 100 feet of an intermittent or perennial stream 
shall be disturbed by surface coal mining and reclamation operations 
unless the regulatory authority specifically authorizes surface coal 
mining and reclamation operations through such a stream. The area 
not to be disturbed shall be designated a buffer zone and marked as 
specified in Sec.  715.12.

    The rule does not specify the conditions under which the regulatory 
authority may authorize operations within the buffer zone.

C. Permanent Regulatory Program (1979 Rules)

    The original version of our permanent program regulations, as 
published on March 13, 1979, included more extensive stream buffer zone 
rules at 30 CFR 816.57 (for surface mining operations) and 817.57 (for 
underground mining operations). Specifically, the 1979 version of 
section 816.57 provided that no land within 100 feet of a perennial 
stream or a stream with a biological community shall be disturbed by 
surface mining activities, except in accordance with Sec. Sec.  816.43-
816.44 [the stream diversion regulations], unless the regulatory 
authority specifically authorizes surface mining activities closer to 
or through such a stream upon finding that the original stream channel 
will be restored; and during and after the mining, the water quantity 
and quality from the stream section within 100 feet of the surface 
mining activities shall not be adversely affected. Paragraph (c) of the 
1979 rule provided that a biological community existed if the stream at 
any time contained an assemblage of two or more species of arthropods 
or molluscan animals that were adapted to flowing water for all or part 
of their life cycle, dependent upon a flowing water habitat, 
reproducing or could reasonably be expected to reproduce in the water 
body where they are found, and longer than 2 millimeters at some stage 
of the part of their life cycle spent in the flowing water habitat.
    The counterpart regulation for underground mining at 30 CFR 817.57 
was identical except that it substituted the term ``surface operations 
and facilities'' for ``surface mining activities'' and clearly 
indicated that the restrictions were limited to ``surface areas.''
    The preamble to the 1979 rules explains that the purpose of the 
revised rules was to implement paragraphs (b)(10) and (b)(24) of 
section 515 of the Act. 44 FR 15176, March 13, 1979. It states that 
``[b]uffer zones are required to protect streams from the adverse 
effects of sedimentation and from gross disturbance of stream 
channels,'' but that ``if operations can be conducted within 100 feet 
of a stream in an environmentally acceptable manner, they may be 
approved.'' Id. In addition, it states that ``[t]he 100-foot limit is 
based on typical distances that should be maintained to protect stream 
channels from sedimentation,'' but that, while the 100-foot standard 
provides a simple rule for enforcement purposes, ``site-specific 
variation should be made available when the regulatory authority has an 
objective basis for either increasing or decreasing the width of the 
buffer zone.'' Id.

D. Permanent Regulatory Program Revisions (1983 Rules)

    In 1983, we revised the stream buffer zone rules to delete the 
requirement that the original stream channel be restored, to replace 
the biological community criterion for determining which non-perennial 
streams must be protected under the rule with a requirement for 
protection of all intermittent streams, and to add a requirement for a 
finding that the proposed mining activities will not cause or 
contribute to a violation of applicable state or federal water quality 
standards and will not adversely affect the environmental resources of 
the stream. See 48 FR 30312, June 30, 1983.
    In 1983, we also adopted revised performance standards for coal 
preparation plants not located within the permit area of a mine. We 
decided not to apply the stream buffer zone rule to those preparation 
plants. See 30 CFR 827.12 and the preamble to those rules at 48 FR 
20399, May 5, 1983.
    The preamble to the 1983 stream buffer zone rules reiterates the 
general rationale for adoption of a stream buffer zone rule that we 
specified in the preamble to the 1979 rules. It identifies the reason 
for replacing the biological community threshold with the intermittent 
stream threshold as a matter of improving the ease of administration 
and eliminating the possibility of applying the rule to ephemeral 
streams and other relatively insignificant water bodies:

    The biological-community standard was confusing to apply since 
there are areas with ephemeral surface waters of little biological 
or hydrologic significance which, at some time of the year, contain 
a biological community as defined by previous

[[Page 75817]]

Sec.  816.57(c). Thus, much confusion arose when operators attempted 
to apply the previous rule's standards to springs, seeps, ponding 
areas, and ephemeral streams. While some small biological 
communities which contribute to the overall production of downstream 
ecosystems will be excluded from special buffer-zone protection 
under final Sec.  816.57(a), the purposes of Section 515(b)(24) of 
the Act will best be achieved by providing a buffer zone for those 
streams with more significant environmental-resource values.

    48 FR 30313, June 30 1983. The preamble further states that ``[i]t 
is impossible to conduct surface mining without disturbing a number of 
minor natural streams, including some which contain biota'' and that 
``surface coal mining operations will be permissible as long as 
environmental protection will be afforded to those streams with more 
significant environmental-resource value.'' Id. It further provides 
that the revised rules ``also recognize that intermittent and perennial 
streams generally have environmental-resource values worthy of 
protection under Section 515(b)(24) of the Act.'' Id. at 30312. In 
addition, the preamble notes that ``[a]lthough final Sec.  816.57 is 
intended to protect significant biological values in streams, the 
primary objective of the rule is to provide protection for the 
hydrologic balance and related environmental values of perennial and 
intermittent streams.'' Id. at 30313. It further states that ``[t]he 
100-foot limit is used to protect streams from sedimentation and help 
preserve riparian vegetation and aquatic habitats.'' Id. at 30314.
    We also stated that we removed the requirement to restore the 
original stream channel in deference to the stream-channel diversion 
requirements of 30 CFR 816.43 and 817.43 and to clarify that there does 
not have to be a stream diversion for mining to occur inside the buffer 
zone. Id.
    Finally, the preamble states that we added the finding concerning 
``other environmental resources of the stream'' to clarify ``that 
regulatory authorities will be allowed to consider factors other than 
water quantity and quality in making buffer-zone determinations'' and 
``to provide a more accurate reflection of the objectives of Sections 
515(b)(10) and 515(b)(24) of the Act.'' Id. at 30316.
    Revised 30 CFR 816.57(a) (1983) provided that ``[n]o land within 
100 feet of a perennial stream or an intermittent stream shall be 
disturbed by surface mining activities, unless the regulatory authority 
specifically authorizes surface mining activities closer to, or 
through, such a stream.'' The rule further provided that the regulatory 
authority may authorize such activities only upon finding that surface 
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; and if there will be a temporary or permanent 
stream-channel diversion, it will comply with Sec.  816.43.
    The 1983 version of the stream buffer zone rule for underground 
mining at 30 CFR 817.57 is identical except for substitution of the 
term ``underground mining activities'' for ``surface mining 
activities.''
    The National Wildlife Federation challenged this regulation as 
being inconsistent with sections 515(b)(10) and (24) of the Act, 
primarily because it deleted the biological community threshold for 
stream protection. However, the court rejected that challenge, finding 
without elaboration that the ``regulation is not in conflict with 
either section 515(b)(10) or 515(b)(24).'' In re: Permanent Surface 
Mining Regulation Litigation II--Round II, 21 ERC 1725, 1741-1742 
(D.D.C. 1984).
    The court also noted that the Secretary had properly justified the 
rule change on the grounds that the previous rule was confusing and 
difficult to apply without protecting areas of little biological 
significance. Unfortunately, the new criterion (intermittent streams) 
has proven as difficult to apply as the biological community standard 
that it replaced. The definition of ``intermittent stream'' in 30 CFR 
701.5 has two parts, separated by an ``or.'' The first part defines all 
streams with a drainage area of one square mile as intermittent. This 
part of the definition is the aspect that was litigated and upheld for 
its clarity of application. However, the second part of the definition 
includes all streams and stream segments that are below the local water 
table for part of the year and that derive at least part of their flow 
from groundwater discharge. This part of the definition has been more 
difficult to apply in practice. In fact, some States use biological 
criteria for making that determination.
    Industry also challenged 30 CFR 817.57(a) to the extent that it 
included all underground mining activities. However, industry withdrew 
its challenge when the Secretary stipulated that the rule would apply 
only to surface lands and surface activities associated with 
underground mining. See footnote 21, id. at 1741.

E. How has the 1983 stream buffer zone rule been applied and 
interpreted?

    Historically, we and the State regulatory authorities have 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. However, as 
discussed at length in the preamble to the January 7, 2004 proposed 
rule (69 FR 1038-1042), which we never finalized, there has been 
considerable controversy over the proper interpretation of both the 
Clean Water Act and our 1983 rules as they apply to the placement of 
fill material in or near perennial and intermittent streams. As 
evidenced by past litigation and the comments that we received on the 
proposed rule that we published on August 24, 2007, some 
interpretations of our 1983 rule are at odds with the underlying 
provisions of SMCRA.
    We first placed our interpretation of the 1983 stream buffer zone 
rules in writing in a document entitled ``Summary Report--West Virginia 
Permit Review--Vandalia Resources, Inc. Permit No. S-2007-98.'' 
According to our annual oversight reports for West Virginia for 1999 
and 2000, that document stated that the stream buffer zone rule does 
not apply to the footprint of a fill placed in a perennial or 
intermittent stream as part of a surface coal mining operation. On June 
4, 1999, in West Virginia Highlands Conservancy v. Babbitt, Civ. No. 
1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that 
document, alleging that it constituted rulemaking in violation of the 
Administrative Procedure Act. In an order filed September 23, 1999, the 
court approved an unopposed motion to dismiss the case as moot.
    In a lawsuit filed in the U.S. District Court for the Southern 
District of West Virginia in July 1998, plaintiffs asserted that the 
stream buffer zone rule allows mining activities through or within the 
buffer zone for a perennial or intermittent stream only if the 
activities are minor incursions. They argued that the rule did not 
allow substantial segments of the stream to be buried underneath excess 
spoil fills or other mining-related structures. On October 20, 1999, 
the district court ruled in favor of the plaintiffs on this point, 
holding that the stream buffer zone rule applies to all segments of a 
stream, including those segments within the footprint of an excess 
spoil fill, not just to the stream as a whole. The court also stated 
that the construction of fills in perennial or intermittent streams is 
inconsistent with the language of 30 CFR

[[Page 75818]]

816.57(a)(1), which provides that the regulatory authority may 
authorize surface mining activities within a stream buffer zone only 
after finding that the proposed activities ``will not adversely affect 
the water quantity and quality or other environmental resources of the 
stream.'' See Bragg v. Robertson, 72 F. Supp. 2d 642, 660-663 (S.D. W. 
Va., 1999).
    The U.S. Court of Appeals for the Fourth Circuit ultimately 
reversed the district court on other grounds (lack of jurisdiction 
under the Eleventh Amendment to the U.S. Constitution) without reaching 
the merits of the district court's holding on the applicability of the 
stream buffer zone rule. Bragg v. West Virginia Coal Association, 248 
F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
    In a different case, the same district court stated that SMCRA and 
the stream buffer zone rule do not authorize disposal of overburden in 
streams: ``SMCRA contains no provision authorizing disposal of 
overburden waste in streams, a conclusion further supported by the 
buffer zone rule.'' Kentuckians for the Commonwealth, Inc. v. 
Rivenburgh, 204 F. Supp. 2d 927, 942 (S.D. W. Va. 2002).
    The U.S. Court of Appeals for the Fourth Circuit subsequently 
rejected the district court's interpretation, stating that ``SMCRA does 
not prohibit the discharge of surface coal mining excess spoil in 
waters of the United States.'' Kentuckians for the Commonwealth, Inc. 
v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003). The court further 
stated that ``it is beyond dispute that SMCRA recognizes the 
possibility of placing excess spoil material in waters of the United 
States even though those materials do not have a beneficial purpose.'' 
Id. at 443.
    The court explained the basis for its statements as follows:

    Section 515(b)(22)(D) of SMCRA authorizes mine operators to 
place excess spoil material in ``springs, natural water courses or 
wet weather seeps'' so long as ``lateral drains are constructed from 
the wet areas to the main underdrains in such a manner that 
filtration of the water into the spoil pile will be prevented.'' 30 
U.S.C. Sec.  1265(b)(22)(D). In addition, Sec.  515(b)(24) requires 
surface mine operators to ``minimize disturbances and adverse 
impacts of the operation on fish, wildlife, and related 
environmental values, and achieve enhancement of such resources 
where practicable,'' implying the placement of fill in the waters of 
the United States. 30 U.S.C. Sec.  1265(b)(24). It is apparent that 
SMCRA anticipates the possibility that excess spoil material could 
and would be placed in waters of the United States, and this fact 
cannot be juxtaposed with Sec.  404 of the Clean Water Act to 
provide a clear intent to limit the term ``fill material'' to 
material deposited for a beneficial primary purpose.

Id. at 443.

    The preamble to the proposed rule that we published on January 7, 
2004, but which we never adopted in final form, contains additional 
discussion of litigation and related matters arising from the 1983 
stream buffer zone rules. See especially Part I.B.1. at 69 FR 1038-
1040.

F. What rulemaking actions have we proposed to clarify the 1983 rule?

    On January 7, 2004 (69 FR 1036), we proposed to revise our stream 
buffer zone rules to retain the prohibition on disturbance of land 
within 100 feet of a perennial or intermittent stream, but alter the 
findings that the regulatory authority must make before granting a 
variance to this requirement. The revised rule would have replaced the 
Clean Water Act-oriented findings in the 1983 rule with a SMCRA-based 
requirement that the regulatory authority find in writing that the 
activities will, to the extent possible, use the best technology 
currently available to prevent additional contributions of suspended 
solids to the section of stream within 100 feet downstream of the 
mining activities and outside the area affected by mining activities; 
and minimize disturbances and adverse impacts on fish, wildlife, and 
other related environmental values of the stream. The proposed rule 
also would have required that operations be designed to minimize the 
creation of excess spoil.
    Numerous commenters asked us to consider other alternatives to the 
proposed rule. Some commenters also asked that we prepare an 
environmental impact statement (EIS) on the proposed action. On June 
16, 2005 (70 FR 35112), we announced our intent to prepare an EIS on 
the proposed rule changes. We also stated that we intended to consider 
additional alternatives and to publish a new proposed rule to coincide 
with the release of a draft EIS.
    On August 24, 2007 (72 FR 48890), we published a new, extensively 
revised proposed rule and a notice of availability of the draft EIS. 
That proposed rule replaced the one we published on January 7, 2004. 
The August 24, 2007, proposed rule forms the basis for the final rule 
that we are adopting today. This final rule is intended to clarify the 
scope and meaning of the stream buffer zone rule, consistent with 
underlying statutory authority, and to ensure that regulatory 
authorities, mine operators, other governmental entities, landowners, 
and citizens all can have a common understanding of what the stream 
buffer zone rule does and does not require. The final rule also 
includes additional permitting requirements intended to ensure that 
operations are designed to minimize the creation of excess spoil and to 
require consideration of alternatives to the disposal of excess spoil 
and coal mine waste in perennial or intermittent streams or their 
buffer zones to minimize the adverse impacts on fish, wildlife, and 
related environmental values to the extent possible using the best 
technology currently available.
    The revised stream buffer zone rule that we are adopting today 
attempts to minimize disputes and misunderstandings associated with 
application of the 1983 rule. The revised rule distinguishes between 
those situations in which maintenance of an undisturbed buffer between 
mining and reclamation activities and a perennial or intermittent 
stream constitutes the best technology currently available to implement 
the underlying statutory provisions (sections 515(b)(10)(B)(i) and (24) 
and 516(b)(9)(B) and (11) of SMCRA) and those situations in which 
maintenance of a buffer is neither feasible nor appropriate.

IV. What is the relationship between SMCRA and the Clean Water Act with 
respect to this rule?

    In this final rule, we are adding paragraph (f) of sections 780.28 
and 784.28 and paragraph (d) of sections 816.57 and 817.57 to clarify 
the relationship between SMCRA and the Clean Water Act with respect to 
activities conducted in or near perennial and intermittent streams. We 
are adopting these paragraphs to address concerns arising from the fact 
that this final rule removes language that previously appeared in 
sections 816.57(a) and 817.57(a) that specifically prohibited the 
conduct of mining activities within 100 feet of a perennial or 
intermittent stream unless the regulatory authority found that those 
activities would not cause or contribute to the violation of applicable 
State or Federal water quality standards and would not adversely affect 
the water quantity and quality or other environmental resources of the 
stream. We are removing that requirement because its language more 
closely resembles the Clean Water Act than the underlying provisions of 
SMCRA. See Parts II, VIII.C., and VIII.I. of this preamble for further 
discussion of sections 780.28, 784.28, 816.57, and 817.57 and the 
provisions of SMCRA

[[Page 75819]]

that provide the basis for the stream buffer zone rule.
    None of the revisions to the stream buffer zone rule or other 
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.

30 U.S.C. 1292(a).
    In interpreting this statutory provision with respect to effluent 
limitations adopted as part of our initial regulatory program, the U.S. 
Court of Appeals for the D.C. Circuit held that ``where the Secretary's 
regulation of surface coal mining's hydrologic impact overlaps EPA's, 
the Act expressly directs that the Federal Water Pollution Control Act 
and its regulatory framework are to control so as to afford consistent 
effluent standards nationwide.'' In re Surface Mining Regulation 
Litigation, 627 F.2d 1346, 1367 (D.C. Cir. 1980).
    In today's final rule, we are adding paragraph (f)(2) of sections 
780.28 and 784.28 and paragraph (d) of sections 816.57 and 817.57(d) to 
reiterate and further clarify this relationship between SMCRA and the 
Clean Water Act. The new rules emphasize that issuance of a SMCRA 
permit is not a substitute for the reviews, authorizations, and 
certifications required under the Clean Water Act and does not 
authorize initiation of surface coal mining operations for which the 
applicant has not obtained all necessary authorizations, 
certifications, and permits under the Clean Water Act.
    Consistent with the approach described above, our existing 
regulations at 30 CFR 816.42 and 817.42 provide that discharges of 
water from areas disturbed by surface or underground mining activities 
shall be made in compliance with all applicable State and Federal water 
quality laws and regulations and with the effluent limitations for coal 
mining promulgated by the U.S. Environmental Protection Agency set 
forth in 40 CFR part 434. Nothing in the final rule that we are 
adopting today would alter or affect the requirements of 30 CFR 816.42 
or 817.42.
    SMCRA and the Clean Water Act provide for separate regulatory 
programs with different purposes and very different permitting 
requirements and procedures. In addition, SMCRA and the Clean Water Act 
differ considerably with respect to jurisdiction. For example, unlike 
SMCRA, the Clean Water Act does not directly regulate groundwater. The 
Clean Water Act focuses primarily on regulating discharges of 
pollutants into waters of the United States, whereas SMCRA regulates a 
broad universe of environmental and other impacts of surface coal 
mining and reclamation operations. As stated in the legislative history 
of SMCRA:

    Statutory authority to regulate the adverse environmental 
effects of surface and underground coal mining under the Federal 
Water Pollution Control Act [Clean Water Act], as amended, is 
limited to the treatment or removal of any pollutants into the 
waters of the United States. * * * The Federal Water Pollution 
Control Act, as amended, can deal only with a part of the problem. 
The FWPCA does not contain the statutory authority for the 
establishment of standards and regulations 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. The statute also lacks the regulatory 
authority to deal with the discharge of pollutants from abandoned 
surface and underground coal mines.

H. Rep. No. 94-1445 at 90-91 (1976), emphasis in original.

    Section 508(a)(9) of SMCRA requires that each permit application 
include ``the steps to be taken to comply with applicable air and water 
quality laws and regulations and any applicable health and safety 
standards.'' Our regulations at 30 CFR 780.18(b)(9) and 784.13(b)(9) 
similarly require that each permit application include:

    A description of steps to be taken to comply with the 
requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), and the 
Clean Water Act (33 U.S.C. 1251 et seq.), and other applicable air 
and water quality laws and regulations and health and safety 
standards.

    In keeping with section 508(a)(9) of SMCRA, today's rule also 
includes new provisions in paragraph (f)(1) of sections 780.28 and 
784.28 reiterating that every permit application must identify the 
authorizations that the applicant anticipates will be needed under 
sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 
1342, and 1344, and describe the steps that the permit applicant has 
taken or will take to procure those authorizations.
    The Clean Water Act establishes a comprehensive program designed to 
``restore and maintain the chemical, physical, and biological integrity 
of the Nation's waters.'' 33 U.S.C. 1251(a). To achieve this goal, it 
prohibits the discharge of pollutants into navigable waters except as 
in compliance with specified provisions of the Clean Water Act, 
including a provision that allows for discharges authorized by a 
National Pollutant Discharge Elimination System (NPDES) permit. 33 
U.S.C. 1311(a) and 1342(a). At 33 U.S.C. 1362(7), the Clean Water Act 
defines ``navigable waters'' as ``waters of the United States,'' a term 
which the Corps and EPA define at 33 CFR 328.3 and 40 CFR 232.2, 
respectively. The proper scope of that definition has been extensively 
litigated and EPA and the Corps have issued supplemental guidance to 
reflect the outcome of that litigation.
    The Clean Water Act authorizes the discharge of pollutants into 
waters of the United States under two different permit programs. 
Section 404 authorizes discharges of dredged or fill material, while 
section 402 applies to all other pollutants. 33 U.S.C. 1344, 1342. 
Section 404 is primarily administered by the Corps, with the exception 
of those States and Indian tribes that have assumed the program 
pursuant to section 404(g). In both cases, EPA provides input and has 
oversight authority and responsibilities. Section 402 (NPDES) permits 
are issued by EPA or states and Indian tribes that EPA has authorized 
to administer the NPDES program under section 402(b).
    Section 401 of the Clean Water Act requires that each applicant for 
a federal license or permit submit a certification from the state in 
which the discharge originates. The certification must state that the 
discharge will comply with federal and state water quality 
requirements. 33 U.S.C. 1341(a)(1). ``No license or permit shall be 
granted until the certification required by this section has been 
obtained or has been waived'' and ``[n]o license or permit shall be 
granted if certification has been denied by the State.'' Id. Section 
401(d) further provides that the state certifications ``shall become a 
condition on any Federal license or permit subject to the provisions of 
this section.'' Id. at 1341(d).
    Section 402 of the Clean Water Act governs discharges of pollutants 
other than dredged or fill material. 33 U.S.C. 1342. Permits issued 
under this section are known as NPDES permits. They typically contain 
technology-based numerical standards called effluent limitations that 
restrict the amount of specified pollutants that may be

[[Page 75820]]

discharged. 33 U.S.C. 1311, 1362(11). EPA has developed industry-wide 
technology-based wastewater effluent limitations for surface coal 
mining and reclamation operations. Those effluent limitations are 
codified in 40 CFR part 434. NPDES permits also must include any more 
stringent limitations necessary to meet state water quality standards. 
33 U.S.C. 1311(b)(1)(C), 1342(a). EPA may authorize states to issue 
NPDES permits, but EPA retains authority to enforce the requirements of 
the Clean Water Act.
    Section 404 of the Clean Water Act authorizes the Secretary of the 
Army, through the Corps, to regulate discharges of dredged and fill 
material through a permitting process. 33 U.S.C. 1344. On May 9, 2002 
(67 FR 31129-31143), the Corps and EPA adopted a revised definition of 
``fill material'' in 33 CFR 323.2(e) and 40 CFR 232.2, respectively, 
that includes ``overburden from mining or other excavation 
activities.'' In the same rulemaking, the Corps and EPA also adopted a 
revised definition of ``discharge of fill material'' in 33 CFR 323.2(f) 
and 40 CFR 232.2, respectively. The revised definition provides that 
``[t]he term generally includes, without limitation, the * * * 
placement of overburden, slurry, or tailings or similar mining-related 
materials.'' Therefore, any mining overburden or coal mine waste used 
to replace any waters of the United States, or portion thereof, with 
dry land or to change the bottom elevation of any waters of the United 
States, or portion thereof, is classified as fill material for purposes 
of the Clean Water Act.
    To implement section 404, the Corps may issue either individual 
permits under 33 CFR parts 320 through 328 or general permits under 33 
CFR part 330. See 33 U.S.C. 1344(a) and (e). Both individual and 
general permits must comply with guidelines issued by EPA under section 
404(b)(1), 33 U.S.C. 1344(b)(1). Those guidelines, which are codified 
at 40 CFR part 230, are referred to as the ``404(b)(1) Guidelines.'' 
The 404(b)(1) Guidelines generally prohibit the permitting of projects 
where there ``is a practicable alternative to the proposed discharge 
which would have less adverse impact on the aquatic ecosystem, so long 
as the alternative does not have other significant adverse 
environmental consequences.'' 40 CFR 230.10(a). Under 40 CFR 
230.10(a)(2), ``[a]n alternative is practicable if it is available and 
capable of being done after taking into consideration cost, existing 
technology, and logistics in light of overall project purposes.''
    The guidelines specify that the Corps must ensure that the proposed 
fill will not cause significantly adverse effects on human health or 
welfare, aquatic life, and aquatic ecosystems. 40 CFR 230.10(c)(1) 
through (c)(3). To comply with this requirement, the Corps must make a 
written determination of the effects of a proposed activity ``on the 
physical, chemical, and biological components of the aquatic 
environment.'' 40 CFR 230.11. See also 33 CFR 320.4(b)(4) and 
325.2(a)(6) for requirements for individual permits.
    The 404(b)(1) Guidelines also provide that ``no discharge of 
dredged or fill material shall be permitted unless appropriate and 
practicable steps have been taken which will minimize potential adverse 
impacts of the discharge on the aquatic ecosystem.'' 40 CFR 230.10(d). 
One way the Corps can reduce the potential adverse impacts associated 
with filling activity is to require compensatory mitigation. See 33 CFR 
325.4(a)(3) and 320.4(r) for individual permits and General Condition 
20 (72 FR 11193, March 12, 2007) for nationwide permits under 33 CFR 
part 330. This differs substantially from SMCRA, which provides no 
authority to require compensatory mitigation.
    Section 404(e) of the Clean Water Act authorizes the Corps to 
``issue general permits on a State, regional, or nationwide basis for 
any category of activities involving discharges of dredged or fill 
material if the Secretary [of the Army] determines that the activities 
in such category are similar in nature, will cause only minimal adverse 
environmental effects when performed separately, and will have only 
minimal cumulative adverse effects on the environment,'' provided the 
general permit is based upon the guidelines developed under section 
404(b)(1) of the Clean Water Act.
    The Corps has exercised its authority under section 404(e) to issue 
general nationwide permits (NWPs) for surface coal mining operations 
under SMCRA (NWP 21), coal remining activities under SMCRA (NWP 49), 
and underground coal mining activities under SMCRA (NWP 50). Those 
permits apply only if the activities are authorized under a SMCRA 
permit or an application for the activities is being processed as part 
of an integrated permit processing procedure. See 72 FR 11092, 11184, 
and 11191, March 12, 2007. In issuing NWPs 21, 49, and 50, the Corps 
has determined that the activities covered by those permits are in 
compliance with the 404(b)(1) Guidelines. That is, the Corps has 
determined that these activities will cause only minimal adverse 
environmental effects when performed separately and will have only 
minimal cumulative adverse effects on the environment.
    As the Corps states in the preamble to the most recent version of 
its general permits--

    When we issue the NWPs, we fully comply with the requirements of 
the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance 
of general permits under section 404. For the section 404 NWPs, each 
decision document contains a 404(b)(1) Guidelines analysis. Section 
230.7(b) of the 404(b)(1) Guidelines requires only a ``written 
evaluation of the potential individual and cumulative impacts of the 
categories of activities to be regulated under the general permit.'' 
Since the required evaluation must be completed before the NWP is 
issued, the analysis is predictive in nature. The estimates of 
potential individual and cumulative impacts, as well as the 
projected compensatory mitigation that will be required, are based 
on the best available data from the Corps district offices, based on 
past use of NWPs.

72 FR 11094, March 12, 2007.
    In the preamble to NWP 21, the Corps states that ``the analyses and 
environmental protection performance standards required by SMCRA, in 
conjunction with the pre-construction notification requirement, are 
generally sufficient to ensure that NWP 21 activities result in minimal 
individual and cumulative adverse impacts on the aquatic environment.'' 
72 FR 11114. The most critical element in the Corps' determination that 
NWP 21 meets the Clean Water Act requirements for general permits is 
the fact that NWP 21 requires a preconstruction notification from the 
applicant, followed by a review of the project by the Corps, and then a 
written determination from the Corps before the activities covered by 
NWP 21 may be initiated. As the Corps states in the preamble--

    We believe our process for NWP 21 ensures that activities 
authorized by the NWP result in no more than minimal adverse impacts 
to the aquatic environment because each project is reviewed on a 
case-by-case basis and the district engineer either makes a minimal 
impacts determination on the project or asserts discretionary 
authority and requires an individual permit. Also, because of the 
case-by-case review and the requirement for written verification, we 
do not agree that it is necessary to prohibit discharges of dredged 
or fill material into perennial streams.
* * * * *
    The pre-construction notification requirements of all NWPs 
allows for a case-by-case review of activities that have the 
potential to result in more than minimal adverse effects to the 
aquatic environment. If the adverse effects on the aquatic 
environment are more than minimal, then the district engineer can 
either add special conditions to the NWP authorization to ensure 
that the activity results in no more than minimal adverse 
environmental effects

[[Page 75821]]

or exercise discretionary authority to require an individual permit.

72 FR 11114.
    Furthermore, at 72 FR 11117, the Corps states that--

    The Corps does not assume that other state or Federal agencies 
conduct a review that is comparable to the section 404(b)(1) 
Guidelines. Although analysis of offsite alternatives is not 
required in conjunction with general permits, each proposed project 
is evaluated for onsite avoidance and minimization, in accordance 
with general condition 20, and is not authorized under the NWP if 
the adverse impacts to waters of the United States are more than 
minimal.

    At 72 FR 11094, the Corps explains that--

    NWPs 21, 49, and 50 are a special case, in that they authorize 
activities for which review of environmental impacts, including 
impacts to aquatic resources, is separately required under other 
Federal authorities (e.g., Surface Mining Control and Reclamation 
Act (SMCRA) permits for coal mining activities). The Corps believes 
it would be unnecessarily duplicative to separately require the same 
substantive analyses through an individual permit application as are 
already required under SMCRA. However, through the pre-construction 
notification review process, the district engineer will consider the 
analyses prepared for the SMCRA permit and exercise discretionary 
authority to require an individual permit in cases where the 
district engineer determines, after considering avoidance and 
reclamation activities undertaken pursuant to SMCRA, that the 
residual adverse effects are not minimal. The project sponsor is 
required to obtain written verification prior to commencing work.

    Thus, the Corps uses SMCRA permit application data and analyses as 
a starting point to determine whether a proposed operation qualifies 
for authorization under NWP 21, but it does not rely upon that 
information exclusively. Nor does the Corps presume that issuance of a 
SMCRA permit is evidence of compliance with Clean Water Act 
requirements. See 72 FR 11115, which states that--

    The Corps understands coal mining is covered by many 
environmental regulations; however the Corps has determined that 
SMCRA, in its current form, does not remove the need, either legally 
or substantively, for independent authorization under Section 404 of 
the Clean Water Act. Consequently, this NWP does not duplicate the 
SMCRA permit process.

    The principles in the preceding discussion concerning NWP 21 also 
apply to NWPs 49 and 50. See 72 FR 11148-49 and 11151-52.
    The preamble to General Condition 27, which applies to NWPs 21, 49, 
and 50, describes the Corps' decisionmaking process as follows:

    In reviewing the PCN [preconstruction notification] for the 
proposed activity, the district engineer will determine whether the 
activity authorized by the NWP will result in more than minimal 
individual or cumulative adverse environmental effects or may be 
contrary to the public interest. * * * If the district engineer 
determines that the activity complies with the terms and conditions 
of the NWP and that the adverse effects on the aquatic environment 
are minimal, after considering mitigation, the district engineer 
will notify the permittee and include any conditions the district 
engineer deems necessary. The district engineer must approve any 
compensatory mitigation proposal before the permittee commences 
work. * * *
    If the district engineer determines that the adverse effects of 
the proposed work are more than minimal, then the district engineer 
will notify the applicant either: (1) That the project does not 
qualify for authorization under the NWP and instruct the applicant 
on the procedures to seek authorization under an individual permit; 
(2) that the project is authorized under the NWP subject to the 
applicant's submission of a mitigation plan that would reduce the 
adverse effects on the aquatic environment to the minimal level; or 
(3) that the project is authorized under the NWP with specific 
modifications or conditions. Where the district engineer determines 
that mitigation is required to ensure no more than minimal adverse 
effects occur to the aquatic environment, the activity will be 
authorized within the 45-day PCN period. The authorization will 
include the necessary conceptual or specific mitigation or a 
requirement that the applicant submit a mitigation plan that would 
reduce the adverse effects on the aquatic environment to the minimal 
level. When mitigation is required, no work in waters of the United 
States may occur until the district engineer has approved a specific 
mitigation plan.

72 FR 11195-1196, March 12, 2007.
    The preamble also notes that, before beginning any activities 
covered by the preconstruction notification, the person submitting the 
notification must obtain a state water quality certification under 
section 401 of the Clean Water Act in those states that do not issue an 
unconditional certification for the nationwide permits.
    As the preceding discussion demonstrates, we believe that 
maintaining the distinction between the SMCRA and Clean Water Act 
regulatory programs is both administratively and legally appropriate. 
We do not believe the requirements of this final rule are duplicative 
of requirements under the Clean Water Act. However, consistent with 
section 713(a) of SMCRA, we encourage SMCRA regulatory authorities and 
the agencies administering the Clean Water Act to share permit 
application data and environmental analyses to streamline the 
permitting processes under SMCRA and the Clean Water Act.

V. How did we obtain public input?

    We published the proposed rule on which this final rule is based on 
August 24, 2007, (72 FR 48890-48926). In response to requests from the 
public, we held public hearings on the proposed rule in Charleston, 
West Virginia; Hazard, Kentucky; Knoxville, Tennessee; and Washington, 
Pennsylvania on October 24, 2007. We also held public meetings in Big 
Stone Gap, Virginia on October 24, 2007, and in Alton, Illinois on 
November 1, 2007. In addition, we extended the comment period, which 
was originally scheduled to close October 23, 2007, until November 23, 
2007. See 72 FR 57504, October 10, 2007.
    Approximately 750 persons attended the public hearings and 
meetings. Of the attendees, 212 provided testimony, with 21 supporting 
the proposed rule and the remainder opposed. In addition to the 
testimony offered at the hearings and meetings, we received more than 
43,000 written or electronic comments on the proposed rule. In general, 
most commenters opposed the proposed rule, primarily because they 
viewed the rule as facilitating mountaintop mining and construction of 
excess spoil fills in streams. Commenters representing the coal 
industry generally supported the proposed rule, except for the proposed 
revisions to (1) apply the buffer zone requirement to waters of the 
United States rather than to perennial and intermittent streams and (2) 
require an analysis of alternatives for disposal of excess spoil and 
coal mine waste. Comments from state regulatory authorities and other 
governmental entities were mixed in terms of support for or opposition 
to the 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.

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

A. We Should Discourage the Mining and Use of Coal as a Power Source 
Because of the Role That the Combustion of Coal Plays in Climate Change

    Many commenters expressed opposition to the use of coal as a fuel 
for the generation of electricity, expressing concern about its role in 
climate change. We acknowledge the commenters' concerns. However, 
regulations adopted under SMCRA are not the appropriate venue to 
address climate change issues. Coal-fired power

[[Page 75822]]

plants produce more than half of the electricity used in the United 
States and the use of coal as a fuel for power generation is likely to 
increase. Nothing in SMCRA authorizes us to regulate electric power 
generation facilities or to adopt regulations or take other actions for 
the purpose of reducing the use of coal for the generation of 
electricity or to require carbon sequestration. Indeed, in SCMRA, 
Congress repeatedly mentions the importance of coal to the Nation, 
including the continued production of coal as an energy source. Section 
101(b) of SMCRA states that ``coal mining operations presently 
contribute significantly to the Nation's energy requirements.'' Section 
101(d) refers to ``the expansion of coal mining to meet the Nation's 
energy needs'' and section 101(j) notes that ``surface and underground 
coal mining operations * * * contribute to the economic well-being, 
security, and general welfare of the Nation.'' Section 102(f) specifies 
that one of the purposes of SMCRA is to ``assure that the coal supply 
essential to the Nation's energy requirements and to its economic and 
social well-being is provided.'' That paragraph also provides that one 
of the purposes of SMCRA is to ``strike a balance between protection of 
the environment and agricultural productivity and the Nation's need for 
coal as an essential source of energy.'' Taken together, these passages 
and the other purposes of SMCRA listed in section 102 indicate that the 
regulatory provisions of SMCRA were enacted not to discourage the 
production or use of coal but rather to ensure that coal is mined in a 
manner that respects property rights and minimizes adverse impacts on 
land and water resources and communities. As stated in section 102(a) 
of SMCRA, in enacting SMCRA, Congress intended to ``establish a 
nationwide program to protect society and the environment from the 
adverse effects of surface coal mining operations.'' (Emphasis added.) 
There is no indication that Congress intended that the Act operate as a 
means of regulating the burning and use of coal as opposed to the 
manner and locations in which coal is mined.
    The lack of regulatory authority does not mean that we are 
indifferent to the potential problems posed by climate change from 
greenhouse gas emissions like carbon dioxide. In cooperation with 
industry, academia, conservation organizations, individual landowners, 
and others, we developed the Appalachian Regional Reforestation 
Initiative, which encourages both the reclamation of mined lands in a 
manner that is favorable to tree growth and the planting of trees as 
part of the mine reclamation process. Young forests, especially 
robustly growing young hardwood forests like those found on reclaimed 
minesites that use the forestry reclamation approach encouraged under 
the Appalachian Regional Reforestation Initiative, are generally 
recognized as an effective means of removing carbon dioxide from the 
atmosphere.

B. We Should Withdraw the Proposed Rule and Enforce the 1983 Stream 
Buffer Zone, the Meaning of Which Is Clear as Written

    Many commenters argued that we should withdraw the proposed rule 
and instead fully implement and enforce the 1983 version of the stream 
buffer zone rule at 30 CFR 816.57 and 817.57. According to the 
commenters, there is no need to clarify the meaning of the 1983 rule 
because the plain language of that rule precludes the construction of 
excess spoil and coal mine waste fills in perennial and intermittent 
streams. The commenters stated that the proposed rule is a reversal of 
the 1983 rule, not a clarification, because it specifies that excess 
spoil fills, refuse piles, and certain other activities conducted in 
the stream as part of surface coal mining operations are not subject to 
the prohibition on disturbance of the stream buffer zone.
    We disagree with the commenters' interpretation of the 1983 rule. 
Historically, both the 1983 rule and its state counterparts have been 
applied in a manner that has allowed the construction of fills in 
perennial and intermittent streams as part of surface coal mining 
operations, provided those fills comply with all other applicable 
requirements of the SMCRA regulatory program and with all pertinent 
requirements under the Clean Water Act. In other words, the 1983 stream 
buffer zone rule applied only to activities within 100 feet of a 
perennial or intermittent stream. It did not apply to activities 
planned to occur in intermittent or perennial streams. Maintaining a 
100-foot buffer zone to protect the stream's water quality and 
environmental resources makes sense only if the stream segment adjacent 
to the buffer zone is to remain intact. This historical interpretation 
and application of the stream buffer zone rule is in harmony with a 
statement of the U.S. Court of Appeals for the Fourth Circuit in 
Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 
(4th Cir. 2003) (``it is beyond dispute that SMCRA recognized the 
possibility of placing excess spoil material in waters of the United 
States''). Several industry commenters stated that to apply the rule in 
any other way would be nonsensical and that applying the rule to 
activities that are designed to take place in stream channels would 
seriously impair the viability of coal mining in central Appalachia. 
The historical application of the 1983 rule closely resembles the 
revised stream buffer zone rules that we are adopting today. 
Consequently, the revised rules are in fact a clarification of the 1983 
rule, not a reversal of that rule.

C. We Should Not Adopt Any Rule That Facilitates Mountaintop Mining 
Operations or the Filling of Streams

    Many commenters objected to the proposed rule based on the 
perception that the rule would facilitate mountaintop removal 
operations and other large-scale surface mines and related mining 
techniques currently used to extract coal from the mountainous regions 
of central Appalachia. The commenters cited the damage that those 
operations allegedly cause to streams, hardwood forests, fish and 
wildlife, water supplies, and the landscape and culture of Appalachia 
as justification for prohibiting that type of mining. We understand the 
commenters' concerns.
    However, the perception that the proposed rule or this final rule 
would remove an obstacle to mountaintop removal operations or other 
large-scale mining operations is inaccurate. As we explained in the 
preamble to the proposed rule, our changes to the stream buffer zone 
rule are intended to clarify when and how that rule applies, consistent 
with the historical application of the 1983 rule under both SMCRA and 
the Clean Water Act. Our revisions are not intended to restrict coal 
removal. Nor are they intended to promote or discourage any particular 
method of mining, including mountaintop removal.
    In enacting SMCRA, Congress did not ban mountaintop removal 
operations or the construction of excess spoil fills in streams. 
Indeed, section 515(c) of SMCRA specifically authorizes the use of 
mountaintop removal methods to recover coal seams in steep-slope areas, 
and section 515(b)(22)(D) allows the construction of excess spoil fills 
in areas that ``contain springs, natural water courses, or wet weather 
seeps'' if a proper drainage system is installed. As stated in section 
102(f), two of the Act's purposes are to ``assure the coal supply 
essential to the Nation's energy requirements and to its economic and 
social well-being is provided'' and to ``strike a balance between 
protection of the environment and agricultural productivity and the 
Nation's need for

[[Page 75823]]

coal as an essential source of energy.'' When Congress wanted to place 
certain lands off-limits to coal mining, in whole or in part, or to 
prohibit certain types of mining, in whole or in part, it did so by 
including provisions in the Act to that effect. See, e.g., section 522 
[``Designating Areas Unsuitable for Surface Coal Mining''], section 
510(b)(5) [alluvial valley floors west of the hundredth meridian], and 
section 516(c) [underground coal mining under urbanized areas]. 
Otherwise, SMCRA and its implementing regulations establish how coal is 
to be mined, not whether it may be mined. The regulations that we are 
adopting today are consistent with the statute in that they are 
intended to minimize the adverse impacts of surface coal mining 
operations on fish, wildlife, and related environmental values without 
prohibiting the use of specific methods of mining or the recovery of 
coal from lands that have not been designated as unsuitable for surface 
coal mining operations.
    Most fill material placed in streams in connection with coal mining 
is a result of the need to dispose of excess spoil generated by mining 
operations conducted in areas consisting of steep slopes and narrow 
valleys. To remove coal by surface mining methods, the formerly solid 
rock strata overlying the coal seam must be broken up into fragments 
and excavated. The broken rock fragments (referred to as spoil) are 
separated by numerous voids, resulting in a significant increase in 
volume over the volume of solid rock in place before mining. The 
increase in volume varies considerably depending upon the nature of the 
rock and the mining method, but the industry average is about 25 
percent. Returning all spoil to the mined-out area in steep-slope 
terrain would create highly unstable conditions and in most cases is 
physically impossible. Consequently, some spoil must be permanently 
placed outside the mined-out area in engineered fills, typically in the 
upper reaches of valleys adjacent to the mine. As defined in 30 CFR 
701.5, spoil not needed to restore the approximate original contour and 
disposed of in locations other than the mined-out area is considered 
``excess spoil.''
    The central Appalachian coalfields are characterized by highly 
eroded plateaus dissected by numerous narrow, deeply incised valleys 
with steep side slopes. In this region, even small valleys may contain 
intermittent and perennial streams. For example, in a study conducted 
in West Virginia, the United States Geological Survey found that, on 
average, perennial streams begin in watersheds as small as 40.8 acres 
and intermittent streams in watersheds as small as 14.5 acres. See 
Katherine S. Paybins, Flow Origin, Drainage Area, and Hydrologic 
Characteristics for Headwater Streams in Mountaintop Coal-Mining Region 
of Southern West Virginia, Water Resources Investigations Report 02-
4300, U.S. Geological Survey, 2003, p. 1. Consequently, the 
construction of excess spoil fills in those valleys often involves 
burying the upper reaches of perennial and intermittent streams.
    A further description of the existing environment of the central 
Appalachian coalfields can be found in the draft and final 
environmental impact statements issued in 2003 and 2005, respectively, 
by the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps 
of Engineers (COE or the Corps), the U.S. Fish and Wildlife Service 
(FWS), OSM, and the West Virginia Department of Environmental 
Protection. The draft EIS, which the final EIS incorporates by 
reference, contains the bulk of that description. The draft EIS is 
entitled ``Mountaintop Mining/Valley Fills in Appalachia Draft 
Programmatic Environmental Impact Statement'' (EPA 9-03-R-00013, EPA 
Region 3, June 2003) and is available at http://www.epa.gov/region3/mtntop/eis.htm. The final EIS, which is entitled ``Mountaintop Mining/
Valley Fills in Appalachia Final Programmatic Environmental Impact 
Statement'' (EPA 9-03-R-05002, EPA Region 3, October 2005), is 
available at http://www.epa.gov/region3/mtntop/pdf/mtm-vf_fpeis_full-document.pdf.
    Underground mines also may result in the filling of some stream 
segments where other viable options may not exist, especially in steep-
slope areas. Rock and other overburden materials removed as part of the 
cut made to expose the coal seam into which the mine entries and 
ventilation shafts are driven typically are used to construct an 
adjoining bench upon which mine offices, parking lots, equipment, and 
other support facilities are located. This process is referred to as 
``facing up'' the mine. Any material removed as part of the face-up 
operation that is not used to construct the bench or placed in 
temporary storage for use in restoring the approximate original contour 
and reclaiming the face-up area once the mine closes permanently is 
excess spoil. Should such excess spoil exist, it would be placed in 
fills on adjacent hillsides or in adjoining valleys. Underground mining 
operations also may involve the excavation of non-coal waste rock from 
underground tunnels. The waste rock, which we define as underground 
development waste, is typically brought to the surface and placed 
either in refuse piles or in excess spoil fills that meet the 
requirements for refuse piles, as required by 30 CFR 817.71(i).
    Activities associated with coal preparation plants also may result 
in the filling of some stream segments. These plants clean coal by 
removing impurities, especially ash, incombustible rock, and sulfur. 
They create large quantities of coal processing waste, including both a 
very fine fraction, which is often suspended in water in a semi-liquid 
form (slurry) and a coarse fraction (refuse). The slurry is usually 
impounded behind dams constructed of coarse refuse in a valley adjacent 
to the plant.
    One industry commenter stated that underground coal mining in 
central Appalachia depends on fills in mostly intermittent streams to 
store material from mine bench and stockpile construction and for 
sedimentation ponds and road crossings. The commenter also noted that 
coal processing waste is deposited in valley fills associated with coal 
preparation plants. Therefore, according to the commenter, without 
valley fills, coal mining in central Appalachia is doomed. While the 
commenter's statement may be somewhat of an exaggeration, there is 
little doubt that a prohibition on placement of excess spoil and coal 
mine waste in perennial or intermittent streams would have a 
significant adverse impact not only on surface mines, but also on 
underground mines and coal preparation plants.
    Pages 7-8 of the final report dated January 13, 2003, for an 
economic study prepared for us by Hill & Associates, Inc. (Contract No. 
CT212142) contains the following discussion:

    We received strong input from the mining community that it is an 
egregious mistake to ignore impacts of the valley fill limitations 
on deep mines, especially new ones. First, many deep mines are co-
dependent on related surface mines for quality blending requirements 
and even economic averaging arrangements. Eliminating or reducing 
the surface mining has a direct impact on the viability of the deep 
mining in these instances. Second, the typical reject rate in 
Central Appalachia from a wash plant associated with a deep mine is 
about 50%. Thus, for every one ton of coal mined, one ton of refuse 
is placed in a valley fill or related impoundment. In fact, the 
valley fills associated with wash plant refuse are generally among 
the larger valley fills associated with coal mining (with generally 
larger watershed) but are fewer in number than surface mining valley 
fills. Third, the construction of a new deep mine involves other 
valley fill issues. Often, a new deep mine is accompanied by a new 
wash plant with a new valley fill for refuse.


[[Page 75824]]


    The Hill & Associates report uses the term ``deep mines'' for 
underground mines and the term ``wash plants'' for coal preparation 
plants. In addition, in the report, the term ``valley fills'' includes 
all excess spoil fills and coal mine waste disposal facilities 
constructed as part of a surface mine.
    The following excerpt from a colloquy between Senators Howard Baker 
of Tennessee and Henry Jackson of Washington concerning S. 425, a 1973 
bill that was a precursor to SMCRA, illustrates that Congress was 
cognizant of the potential scale of mountaintop removal operations and 
the attendant fills:

    Mr. BAKER. Mr. President, the last question I have to put, so 
that we may look this squarely in the face, is this: Would the 
distinguished chairman of the committee say certainly that what we 
are doing is sanctioning mountain top mining to the extent where 
whole mountains may be stripped down to ground level, and the 
storage of millions of tons of overburden may be placed in the 
hollows, creating hundreds of thousands of acres of new flat land, 
and that if we are going to adopt this variance which I intend to 
support, we should do it with our eyes wide open to the fact that 
whole mountains may disappear from the landscape?
    Mr. JACKSON. The answer is, yes, of course * * *. What we want 
to do is achieve the twin objectives, here, of being able to 
maintain a mining operation that will be satisfactory from an 
economic point of view, but also that will be environmentally 
acceptable.

119 Cong. Rec. S33314 (daily ed. October 9, 1973).

D. We Should Ensure the Protection of Headwater Streams by Requiring 
Maintenance of an Undisturbed Buffer Between Mining Activities and 
Streams

    A number of commenters emphasized that headwater streams and mature 
forest cover are important to maintain the health of the ecological and 
biological functions of the entire stream. According to the commenters, 
numerous studies have clearly demonstrated that stream buffer zones of 
native vegetation (generally hardwood forests in the central 
Appalachian coal mining region) represent the best technology currently 
available for protecting the functions of headwater streams.
    We agree with the commenters that headwater streams make a 
significant contribution to ecosystem function and the ecological 
productivity of downstream flows. We also agree that, in the absence of 
other considerations, precluding surface coal mining and reclamation 
operations in or near headwater streams may be the best technology 
currently available to protect the fish, wildlife, and related 
environmental values associated with those streams.
    However, the universal protection of mature forest cover and 
headwater streams all the way to the top of the ridge or the head of 
the stream would preclude viable surface mining operations in almost 
all cases, especially in Appalachia. Sections 515(b)(24) and 516(b)(11) 
of SMCRA provide that surface coal mining and reclamation operations 
must use the best technology currently available to minimize 
disturbances to and adverse impacts on fish, wildlife, and related 
environmental values, but only ``to the extent possible.'' The ``to the 
extent possible'' clause in these statutory provisions recognizes that, 
because surface coal mining operations inherently involve significant 
disturbance of the land, those operations necessarily result in some 
disturbances to and adverse impacts on fish, wildlife, and related 
environmental values. Therefore, the determination of what constitutes 
the best technology currently available to minimize those adverse 
impacts is a site-specific determination that must be made in the 
context of the site's geologic, topographic, and ecological 
characteristics (including the location of the coal) and the nature of 
the mining operation. This approach is consistent with our regulatory 
definition of ``best technology currently available'' in 30 CFR 701.5, 
a definition that has remained unchanged since 1979. For example, it is 
almost never possible to conduct surface coal mining operations without 
disturbing ephemeral streams, especially in a mesic environment. In 
those cases, the best technology currently available would focus on how 
the site is reclaimed after mining, in particular, use of the 
revegetation, restoration, and fish and wildlife habitat enhancement 
measures mentioned in sections 816.97 and 817.97 of our rules.
    In addition, many surface coal mining operations necessarily 
involve disturbance of intermittent or perennial streams and all or 
part of the buffer zone for the stream segment in which the activities 
listed in paragraphs (b)(1) through (b)(4) of sections 816.57 and 
817.57 of this final rule occur. For example, in 2000 in West Virginia, 
a team consisting of representatives from OSM, the West Virginia 
Division of Environmental Protection, industry, and the environmental 
community completed an engineering evaluation of 14 proposed mine 
sites, which were representative of all proposed mining sites in West 
Virginia. As summarized on page 2 of the report, the team concluded 
that prohibiting construction of fills in intermittent and perennial 
streams would have a dramatic impact on coal recovery:

    Limiting valley fills to the ephemeral streams resulted in 
significant or total loss of the coal resource for 9 of the 11 mine 
sites when compared to the original mine site plans. All of the coal 
resource was lost for 6 of the 11 mine sites. By restricting fills 
to the ephemeral streams, the total coal recovery is estimated at 
18.6 million tons, a 90.9 percent reduction. The original estimate 
was 186 million tons. The team noted that even if smaller fills 
could be constructed, they would impact nearly every available 
valley, possibly increasing the overall environmental impact.

    Hence, this final rule does not absolutely prohibit the conduct of 
surface activities in intermittent or perennial streams, nor does it 
require maintenance of an undisturbed buffer between surface activities 
and the intermittent or perennial stream in situations where it is not 
possible to do so because of the nature of the proposed surface coal 
mining operations. In other words, avoidance of any disturbance to the 
stream and maintenance of an undisturbed buffer for the stream is not 
required if avoidance would preclude the conduct of surface coal mining 
and reclamation operations.
    However, in keeping with the statutory requirement to use the best 
technology currently available to the extent possible, and in response 
to the commenters' concerns, we have revised the rule to include a 
requirement that, when a permit application includes a proposal to 
disturb a perennial or intermittent stream or land within 100 feet of 
such a stream, the permit applicant must demonstrate to the 
satisfaction of the regulatory authority that avoiding disturbance of a 
perennial or intermittent stream or lands within 100 feet of such a 
stream is not reasonably possible. See paragraphs (b)(1), (c)(1), 
(d)(1), and (e)(1) of sections 780.28 and 784.28, paragraph (d)(1)(i) 
of sections 780.25 and 784.16, and paragraph (a)(3)(i) of sections 
780.35 and 784.19 of the final rule. Those provisions of our final rule 
use the term ``reasonably possible'' to clarify that the phrase ``to 
the extent possible'' in sections 515(b)(24) and 516(b)(11) of SMCRA 
should not be interpreted as requiring the use of any theoretically 
possible approach to compliance with the minimization requirement 
without regard to cost or other provisions of SMCRA. Those provisions 
include section 515(b)(1), which requires that surface coal mining 
operations be conducted ``so as to maximize the utilization and 
conservation of the solid

[[Page 75825]]

fuel resource being recovered so that reaffecting the land in the 
future through surface coal mining can be minimized,'' and section 
102(f), which specifies that one of the purposes of SMCRA is to ensure 
that the coal supply essential to the nation's energy requirements is 
provided. Section 102(f) also calls for establishment of a regulatory 
program that balances environmental protection and coal production. We 
believe that our final rule strikes that balance by using the term 
``reasonably possible'' to interpret and apply the requirements of 
sections 515(b)(24) and 516(b)(11) of the Act.
    A survey of all coal mining permits issued between October 1, 2001, 
and June 30, 2005, indicates that coal mining activities authorized by 
those permits will directly affect about 535 miles of streams 
nationwide, of which 324 miles (60.6 percent) are in the central 
Appalachian coalfields. Based on data from the West Virginia permits, 
we estimate that approximately two-thirds of the 324 miles will be 
permanently covered by excess spoil fills and coal mine waste disposal 
facilities. When segments of headwater streams are buried permanently 
by excess spoil or mine waste fills, the discharge from the toe of the 
fill is equivalent to a spring. The groin ditches associated with the 
fill are too steep to fully replicate the buried stream segment. As 
discussed in the environmental impact statement for this rulemaking, 
typically, the stream segment downstream of the discharge from the toe 
of the fill has a higher base flow rate and lower peak flows than it 
did before construction of the fill. The temperature of the flow is 
also cooler and less variable than that of the original stream. Most of 
the remaining miles of stream directly affected by mining operations 
should experience only temporary adverse environmental impacts, chiefly 
as a result of mining through those streams. In those cases, the 
streams are diverted and relocated while the mining operation proceeds 
through the streambed. When mining is completed, the stream is restored 
to its original location unless the relocation is permanent.
    Finally, our existing rules require that fills be revegetated in a 
manner consistent with the approved postmining land use. In time, we 
anticipate that hardwood forests will be reestablished on most fill 
surfaces in Appalachia.

E. We Have Not Accorded Sufficient Importance to the Environmental 
Protection Purposes of SMCRA

    Several commenters objected to our repeated references to section 
102(f) of SMCRA in the preamble to the proposed rule. Section 102(f) 
provides that one of the purposes of SMCRA is to ``assure that the coal 
supply essential to the Nation's energy requirements and to its 
economic and social well-being is provided'' and to ``strike a balance 
between protection of the environment and agricultural productivity and 
the Nation's need for coal as an essential source of energy.'' 30 
U.S.C. 1202(f). The commenters allege that, in developing our proposed 
rule, we completely ignored the other purposes listed in section 102, 
in particular those in paragraphs (a) [``establish a nationwide program 
to protect society and the environment from the adverse effects of 
surface coal mining operations''], (c) [``assure that surface coal 
mining operations are not conducted where reclamation as required by 
this Act is not feasible''], and (d) [``assure that surface coal mining 
operations are so conducted as to protect the environment'']. The 
commenters argue that the result is to skew the analysis of SMCRA in 
favor of resource development while overlooking negative impacts to 
streams, water quality, and fish habitat. The commenters made these 
arguments in the context of advocating protection for headwater streams 
and interpreting the 1983 rule in a manner that would preclude the 
construction of excess spoil fills and coal mine waste disposal 
facilities in streams.
    We disagree with the commenters' allegations. The purposes of SMCRA 
in section 102 explain what Congress intended to accomplish through the 
specific provisions found in the rest of the Act. They do not provide 
independent rulemaking authority. In particular, they do not provide 
authority to adopt regulations that would preclude surface coal mining 
operations on lands where those operations are not otherwise prohibited 
by SMCRA. Any regulations adopted under SMCRA (as well as any 
interpretation of an existing rule) must be consistent with the 
specific provisions of the Act. The environmental protection standards 
and other provisions of title V of the Act set out specific 
requirements, consistent with the environmental protection and other 
purposes of SMCRA, for the regulation of surface coal mining and 
reclamation operations. Therefore, any regulations implementing title V 
must be consistent with and based upon the provisions of that title. 
The purposes in section 102 can provide support or guidance for a 
regulation, but in and of themselves they do not establish requirements 
or authority for a regulation and they do not suffice to justify 
adoption of a regulation (or interpretation of an existing regulation) 
that is inconsistent with specific requirements or other provisions of 
the Act.
    Within title V, section 515(c) expressly requires that our 
regulations establish provisions under which mountaintop removal mining 
operations may be permitted: ``Each State program may and each Federal 
program shall include procedures pursuant to which the regulatory 
authority may permit [mountaintop removal] operations.'' 30 U.S.C. 
1265(c)(1). Adoption of a rule (or interpretation of an existing rule) 
to prohibit placement of excess spoil and coal mine waste in streams, 
as the commenters advocate on the basis of the environmental protection 
purposes of paragraphs (a), (c), and (d) of section 102 of SMCRA, would 
be inconsistent with this provision of SMCRA because mountaintop 
removal operations--and most other types of mining operations in steep-
slope areas--typically cannot be conducted without construction of 
excess spoil fills in streams. In a study conducted in West Virginia, 
the United States Geological Survey found that, on average, perennial 
streams begin in watersheds as small as 40.8 acres and intermittent 
streams in watersheds as small as 14.5 acres. See Katherine S. Paybins, 
Flow Origin, Drainage Area, and Hydrologic Characteristics for 
Headwater Streams in Mountaintop Coal-Mining Region of Southern West 
Virginia, Water Resources Investigations Report 02-4300, U.S. 
Geological Survey, 2003, p.1. Industry commenters also asserted that 
underground mining operations in central Appalachia would be severely 
curtailed by such a limitation because those operations need to 
construct fills to contain underground development waste generated by 
the face-up and other aspects of mine construction. It would be 
difficult to construct those fills in steep-slope areas without 
impacting an intermittent or perennial stream.
    In addition, section 515(b)(22)(D) of SMCRA authorizes the 
placement of excess spoil in areas that ``contain springs, natural 
water courses, or wet weather seeps'' if proper underdrains are 
constructed. Ephemeral, intermittent, and perennial streams are all 
natural watercourses. Springs are groundwater discharges. Discharges 
from springs typically form intermittent or perennial streams. In 
relevant part,

[[Page 75826]]

our rules at 30 CFR 701.5 define an ``intermittent stream'' as a stream 
or reach of a stream that obtains its flow from both surface runoff and 
ground water discharge.'' Therefore, by authorizing placement of excess 
spoil in areas that contain springs and natural watercourses, section 
515(b)(22)(D) of SMCRA clearly allows construction of excess spoil 
fills in intermittent and perennial streams, provided the necessary 
underdrains are installed. Interpreting the purposes of SMCRA listed in 
paragraphs (a), (c), and (d) of section 102 as authorizing adoption of 
a rule (or interpretation of an existing rule) to effectively prohibit 
construction of excess spoil fills in perennial and intermittent 
streams thus would be inconsistent with section 515(b)(22)(D) of SMCRA 
and, by extension, section 515(c) of SMCRA.

F. EPA Cannot Legally Concur With the Revised Stream Buffer Zone Rules 
Because They Violate the Clean Water Act

    Section 501(a)(B) of SMCRA specifies that we must obtain the 
written concurrence of the EPA Administrator with respect to 
regulations that relate to air or water quality standards published 
under the authority of either the Clean Air Act or the Clean Water Act. 
That provision applies to some of the changes that we are making in 
this final rule.
    Several commenters stated that EPA cannot legally concur with the 
proposed rule because it would result in significant degradation to the 
aquatic ecosystem in violation of the Clean Water Act regulations at 40 
CFR 230.10(c), which are part of the 404(b)(1) Guidelines. The 
commenters argue that, by eliminating the provision in the 1983 stream 
buffer zone rule that required a finding that the proposed activity 
would not cause or contribute to a violation of state or federal water 
quality standards and would not adversely affect the water quality, 
quantity, or other environmental resources of the stream, the proposed 
rule would implicitly allow effects that are both adverse and 
significant. According to the commenters, this result would be 
inconsistent with 40 CFR 230.10(c), which provides that, subject to an 
exception that is not germane here, ``no discharge of dredged or fill 
material shall be permitted which will cause or contribute to 
significant degradation of the waters of the United States.'' In 
addition, 40 CFR 230.10(a) provides that ``no discharge of dredged or 
fill material shall be permitted if there is a practicable alternative 
to the proposed discharge which would have less adverse impact on the 
aquatic ecosystem, so long as the alternative does not have other 
significant adverse environmental consequences.'' Therefore, according 
to the commenters, this final rule would violate the Clean Water Act, 
which would mean that EPA has no basis under the Clean Water Act for 
concurrence with the final rule. Another commenter argues the rule is 
not consistent with the Clean Water Act because it authorizes waste 
assimilation in streams, which the Clean Water Act prohibits.
    We do not agree with the commenters. Section 501(a)(B) of SMCRA 
does not establish a requirement that the EPA Administrator's 
concurrence be based upon provisions of the Clean Water Act. Moreover, 
the requirements of the Clean Water Act apply independently of any 
regulations adopted under SMCRA. See section 702(a)(2) of SMCRA, which 
provides that nothing in SMCRA ``shall be construed as superseding, 
amending, modifying, or repealing'' the Clean Water Act or any 
regulations or state laws adopted under authority of that law. Our 
final rules at 30 CFR 780.28(f)(2), 784.28(f)(2), 816.57(a)(2), and 
817.57(a)(2) reiterate this relationship between SMCRA and the Clean 
Water Act and emphasize that issuance of a SMCRA permit does not 
authorize initiation of surface coal mining operations for which the 
applicant has not obtained all necessary authorizations, 
certifications, and permits under the Clean Water Act. Therefore, EPA's 
concurrence with the final rule is not contrary to the Clean Water Act.

G. The Applicability of the Final Rules Should Be Limited to Steep-
Slope Areas and Mountaintop Removal Operations

    The Pennsylvania regulatory authority recommended that we not 
proceed with this rulemaking because it would impose additional burdens 
on Pennsylvania, create uncertainty for both citizen groups and mine 
operators, and would likely lead to extensive and costly litigation. 
According to the commenter, the rule's benefits would not offset the 
unfunded burdens, uncertainties and litigation that would result from 
adoption of the regulations. Pennsylvania also stated that if we 
proceed with a final rule, that rule should not require all states to 
change their programs to address a matter that is an issue only in 
those few states that have mountaintop removal operations and steep-
slope mining. Instead, Pennsylvania recommended that we use the 
specific authority of section 515 of SMCRA to craft a rule tailored to 
mountaintop removal operations and steep-slope mining. The National 
Mining Association made similar comments with respect to our proposed 
excess spoil rules, arguing that the rulemaking record does not 
demonstrate a need for applying the excess spoil rules to any other 
areas.
    We do not agree with the commenters' recommendations. We believe 
that perennial and intermittent streams potentially affected by excess 
spoil fills and coal mine waste disposal facilities in non-steep-slope 
areas and areas outside central Appalachia merit the same protection as 
streams in central Appalachia. Furthermore, states that may have very 
few operations involving placement of excess spoil or coal mine waste 
in perennial or intermittent streams would incur only minimal 
additional resource costs in processing applications for those 
operations.
    The vast majority of excess spoil fills that involve placement of 
excess spoil in perennial or intermittent streams are located in steep-
slope areas of central Appalachia. However, those structures are 
occasionally constructed in streams in other states and other areas. 
For example, with respect to excess spoil fills, a nationwide survey of 
all coal mining permits issued between October 1, 2001, and June 30, 
2005, found that those permits included a total of 1,612 excess spoil 
fills, of which 1,589 (98.6 percent) are located in the central 
Appalachian coalfields. Specifically, most of the fills approved in 
those permits are located in Kentucky (1,079), West Virginia (372), and 
Virginia (125), with 13 approved in Tennessee. However, the remaining 
fills approved during that time are located in Alaska, Alabama, Ohio, 
Pennsylvania, and Washington, so we believe that sufficient basis 
exists for a national rulemaking. This survey is discussed in greater 
detail in the environmental impact statement that accompanies this 
rule.
    Surface coal mining operations nationwide generate coal mine waste. 
Except in very flat terrain, refuse piles and especially slurry 
impoundments are constructed in stream valleys. There is no basis for 
limiting the scope of our coal mine waste rules to steep-slope areas or 
mountaintop removal mining.
    In addition, the stream buffer zone rule is national in scope, as 
are the stream diversion rules. The frequency of use of those rules has 
little relationship to topography or type of mining. Surface coal 
mining operations routinely encounter perennial and intermittent 
streams in both steep-slope and non-steep-slope areas. The changes that 
we have made to the stream buffer zone rules, especially the new permit 
application requirements for operations

[[Page 75827]]

that propose to disturb the surface of lands within 100 feet of a 
perennial or intermittent stream and the revised findings that the 
regulatory authority must make before approving an exception to the 
buffer zone requirement, have universal applicability and utility, as 
do the changes to the stream diversion rules.
    Finally, we do not agree with the commenter's characterization of 
the rule as creating uncertainty. To the contrary, this rule is 
intended in part to address and resolve the controversy and uncertainty 
surrounding the 1983 stream buffer zone rule. The permitting decisions 
that the regulatory authority must make under this final rule differ 
little in complexity from those that the regulatory authority must make 
under other provisions of the existing rules. As in the case of other 
situations in which the regulatory authority must apply subjective 
requirements, we anticipate that the regulatory authority will use best 
professional judgment in determining compliance. Therefore, we decline 
to adopt the commenter's recommendations.

H. The Stream Buffer Zone Rule Is Unnecessary and Should be Removed in 
Its Entirety

    Several commenters advocated completely removing the stream buffer 
zone rule, noting that nothing in SMCRA mandates adoption of such a 
rule. One commenter noted that removal of the stream buffer zone rule 
would be the most effective method of eliminating ambiguity from the 
federal regulations concerning fill construction. The commenters stated 
that maintaining a stream buffer zone rule is not needed to provide 
SMCRA-mandated environmental protection and that the statute and 
regulations are replete with other regulatory requirements that 
directly address the concerns for which the stream buffer zone rule was 
adopted.
    We considered the option recommended by the commenters, but decided 
to retain the stream buffer zone rule. With respect to perennial and 
intermittent streams, we believe that the rule serves a useful role in 
establishing a buffer zone as the best technology currently available 
to comply with the statutory requirements to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values, 
provided maintenance of a buffer zone is reasonably possible. See the 
discussion in Part VI.D. of this preamble.

VII. Why did we decide against applying the stream buffer zone rule to 
all waters of the United States (WOTUS)?

    On August 24, 2007, we proposed to revise the scope of our stream 
buffer zone rules at 30 CFR 816.57 and 817.57, which applied to 
perennial and intermittent streams, to apply to all waters of the 
United States, which would include certain lakes, ponds, wetlands, and 
reaches of ephemeral streams. We had two reasons for proposing this 
change. First, the scope of the statutory provisions that form the 
basis for the stream buffer zone rule, i.e., sections 515(b)(10)(B)(i) 
and (24) and 516(b)(9)(B) and (11) of SMCRA, is not limited to 
perennial or intermittent streams. Instead, those provisions broadly 
require that, to the extent possible using the best technology 
currently available, surface coal mining operations be conducted so as 
to prevent additional contributions of suspended solids to streamflow 
or runoff outside the permit area and that surface coal mining and 
reclamation operations be conducted so as to minimize disturbances to 
and adverse impacts on fish, wildlife, and related environmental 
values. Sedimentation and sediment-laden runoff from mine sites could 
degrade those values. Second, we anticipated that achieving greater 
consistency with the terminology used in regulatory programs under the 
Clean Water Act would remove one obstacle to better coordination and 
streamlining of the SMCRA and Clean Water Act permitting processes.
    In the preamble to the proposed rule, we requested comment on 
whether the increased regulatory consistency and other benefits of 
adopting the term WOTUS would outweigh the jurisdictional and other 
problems associated with use of that term as part of the SMCRA 
regulatory program. See 72 FR 48900, August 24, 2007. We found little 
public support for the proposed change.
    All three iterations of the stream buffer zone rule that we adopted 
since the enactment of SMCRA have applied only to perennial and 
intermittent streams or subsets thereof. Many commenters opposed 
disturbing that regulatory stability, noting that our rules at 30 CFR 
701.5 define perennial and intermittent streams in a well-understood 
manner consistent with other generally accepted definitions of those 
terms. They expressed concern that use of WOTUS would be confusing 
because that term has no clearly established legal or programmatic 
meaning. The commenters stated that the various organizational units of 
the Corps and EPA vary greatly in their interpretation and application 
of the term WOTUS and that the scope of that term is constantly 
evolving as the courts struggle to define the jurisdictional reach of 
the Clean Water Act. One commenter noted that the Supreme Court has 
been unable to agree on even a single governing principle for WOTUS. 
See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 
Eng'rs, 531 U.S. 159 (2001) (SWANCC); Rapanos v. U.S., 547 U.S. 715 
(2006). The commenter concluded that ``OSM should not anchor its 
regulatory program on such an unstable foundation,'' a sentiment shared 
by other commenters.
    We received numerous comments to the effect that the proposed rule 
change would be unnecessary and possibly counterproductive because the 
definitions of perennial and intermittent streams in both our rules and 
state regulatory programs under SMCRA are clear and relatively 
straightforward to implement, while WOTUS is not. The Virginia 
regulatory authority commented that adding lakes, ponds, and wetlands 
to the scope of the buffer zone rule would probably not be much of a 
change to that agency's existing practice, apart from the matter of 
obtaining jurisdictional determinations, but that it would replace an 
established and effective regulatory term with no real benefit gained.
    Several commenters opposed changing the scope of our stream buffer 
zone rules to WOTUS because the unsettled and subjective meaning of 
that term would spawn considerable uncertainty, which would be contrary 
to our stated objective of clarifying the existing stream buffer zone 
rules. The National Mining Association elaborated upon this argument as 
follows:

    When OSM revised the [stream buffer zone] rule in 1983, the 
principal reason for limiting the rule to perennial and intermittent 
streams was because the earlier version referencing streams with a 
biological community was confusing and difficult to apply. This, 
according to the agency, ``led to confusion on the part of 
operators'' attempting to apply the amorphous and ill-defined 
biological community standard. In response to challenges from 
several environmental groups, the federal district court upheld the 
agency's reasoning holding that ``it is precisely this type of 
justification, based on practical experience and expertise that 
justifies such a change.'' Moreover, the court noted that the stream 
buffer zone rule is not the only, or the most important, one in 
OSM's regulation[s] to implement Sec. Sec.  515(b)(10) and (24). 
[Footnotes omitted.] * * * Here the practical experience discloses

[[Page 75828]]

that changing the scope of the rule to WOTUS will be even more 
confusing and difficult to apply than the 1979 rule due to the vague 
and confusing status of the meaning of waters of the United States.

    The Association also expressed concern that the adoption of WOTUS, 
a Clean Water Act term that we have no authority to interpret or 
define, could have unintended impacts on SMCRA regulatory programs and 
the regulated community because we have no control over how that term 
may be defined in the future.
    Several commenters expressed concern that the use of WOTUS would 
greatly delay the SMCRA permitting process because of the need to 
obtain jurisdictional determinations from the U.S. Army Corps of 
Engineers in accordance with a guidance document issued by EPA and the 
Corps on June 5, 2007, entitled ``Clean Water Act Jurisdiction 
Following the U.S. Supreme Court's Decision in Rapanos v. United States 
& Carabell v. United States,'' http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf. According to the commenters, that document 
appears to require that permit applicants seek jurisdictional 
determinations from the Corps in many more situations than was the case 
before issuance of the guidance document. The National Mining 
Association stated that the Corps already has a massive backlog of 
requests for jurisdictional determinations. Because we are not adopting 
the use of WOTUS for other reasons, we did not investigate the accuracy 
of these comments. However, for informational purposes, we note that 
the Corps also issued Regulatory Guidance Letter No. 08-02 on June 26, 
2008. That letter provides further guidance on jurisdictional 
determinations and related procedures.
    The National Mining Association stated that it supports 
coordination of and reduction of duplication between the SMCRA and 
Clean Water Act permitting processes, but that, based on its experience 
in promoting that goal during the past seven years, it did not see any 
realistic probability that changing the focus of the buffer zone rule 
from perennial and intermittent streams to WOTUS would achieve that 
goal. The Association also stated that it did not foresee any 
discernible environmental benefits from the proposed change in focus.
    Comments submitted on behalf of 12 national environmental 
organizations also strongly opposed the proposed use of WOTUS to define 
the scope of the stream buffer zone rule:

    One of the most perplexing aspects of the proposed rule is OSM's 
plan to change the bodies of water to which stream buffer zone 
provisions apply. If adopted, the rule would no longer apply to all 
perennial and intermittent streams, but instead would cover ``waters 
of the United States.'' Although this is touted as providing 
``increased environmental protection and consistency with the Clean 
Water Act,'' less protection and more confusion seems inevitable if 
the proposal is adopted.
    To begin with, this proposal appears to be a solution in search 
of a problem. OSM acknowledges: ``we do not anticipate that this 
change in terminology will result in a significant expansion in the 
applicability of our rules because the vast majority of waters that 
may be affected by surface coal mining and reclamation operations 
are perennial and intermittent streams.'' By itself, this fact is 
not a reason to reject the proposal; we agree with the idea that a 
wide range of water bodies ought to be protected from mining-related 
damage, as SMCRA contains provisions that seek to protect water 
bodies beyond streams. However, in view of the other problems 
discussed below with linking the Stream Buffer Zone rule to ``waters 
of the United States'' under the Clean Water Act, the likely 
incremental benefit of including other water bodies does not justify 
the change.
    If there is one thing that conservation groups, the federal 
government, and the coal mining companies probably can agree on in 
this rulemaking, it is that it is not clear today what aquatic 
features qualify as ``waters of the United States,'' at least 
without further factual inquiry. As a result of two Supreme Court 
decisions and unhelpful ``guidance'' by EPA and the Army Corps of 
Engineers, some have come to the conclusion that even certain 
streams may not qualify as ``waters of the United States'' protected 
by the Clean Water Act's core programs.
* * * * *
    Were the Stream Buffer Zone rule to be amended by the proposed 
rule to apply to ``waters of the United States,'' then, we have 
significant concern that it may be applied to only a subset of 
perennial and intermittent streams, whereas it historically has 
applied to all such streams. Effectively, implementing this change 
may lead to the proposed rule protecting fewer streams than the 
Stream Buffer Zone rule has in the past * * *.
    Finally, we do not believe that it is feasible, as OSM suggests, 
to resolve these jurisdictional issues by having ``the SMCRA 
regulatory authority * * * consult and coordinate with the Corps of 
Engineers in situations in which there is a question as to whether 
waters within or adjacent to the proposed permit area are waters of 
the United States under the Clean Water Act.'' As the OSM may or not 
be aware, it is the EPA, not the Corps, that has the responsibility 
for determining which water bodies are ``waters of the United 
States'' for purposes of the 404 program and the entire Clean Water 
Act.
    The EPA, working in conjunction with the Corps, is just 
beginning to make many jurisdictional and non-jurisdictional 
determinations using Rapanos as a guide, and the preliminary 
indications are that the process is very time-consuming and, more 
importantly, may be so arbitrary that it is leading to waters being 
declared unprotected when they in fact should remain jurisdictional.

    Three commenters (the U.S. Fish and Wildlife Service, the Geologic 
Resources and Water Resources Divisions of the National Park Service, 
and the Pennsylvania Fish and Boat Commission) expressly supported the 
proposed use of WOTUS in defining the scope of the stream buffer zone 
rules. However, two of the three expressed concern that the change 
might reduce the protection afforded to perennial and intermittent 
streams. The U.S. Fish and Wildlife Service stated that it supported 
the use of WOTUS ``as a matter of regulatory consistency and sound 
public policy, but remains concerned about the unsettled nature of 
jurisdictional determinations in headwater streams'' in the wake of 
recent Supreme Court decisions. The Service requested that we work with 
them ``to develop a process to monitor the extent to which intermittent 
or perennial streams are determined not to be `waters of the U.S.' '' 
The Pennsylvania Fish and Boat Commission strongly urged that we also 
retain the rule's applicability to perennial and intermittent streams 
because application of those terms in the SMCRA context is not 
dependent upon a jurisdictional determination by the U.S. Army Corps of 
Engineers. The Commission expressed the fear that adoption of WOTUS 
without also retaining the rule's applicability to perennial and 
intermittent streams ``would weaken or reduce the protection on most 
streams, especially headwater streams.''
    The Geologic Resources and Water Resources Divisions of the 
National Park Service stated that they fully supported the proposed 
change because many high-value aquatic ecosystems are neither perennial 
nor intermittent streams. According to the commenter, the proposed rule 
change would not place an undue burden or impact on operators, 
especially when considering the environmental benefits that would be 
realized through protecting a more inclusive set of aquatic systems, 
including wetlands, lakes, and ponds. The commenter stated that the 
National Park Service routinely seeks permits through local Corps 
offices and has never found that this requirement imposed a burden or 
had a substantial impact on the completion of any project.
    After evaluating the comments received, we find the arguments 
against adoption of WOTUS persuasive. The final rule that we are 
adopting today retains the status quo with respect to the scope of the 
stream buffer zone rule; i.e., that rule will continue to apply to

[[Page 75829]]

perennial and intermittent streams rather than to WOTUS. Rather than 
attempting to introduce Clean Water Act terminology and procedures into 
regulations implementing SMCRA, we believe that the more prudent and 
defensible course of action is to adopt terminology and requirements 
based on provisions of SMCRA. SMCRA does not use the term WOTUS in 
establishing regulatory requirements for surface coal mining 
operations, but it does refer to streams. At the same time, section 
702(a) of SMCRA clearly specifies that nothing in SMCRA may be 
construed as superseding, amending, modifying, or repealing the Clean 
Water Act or its implementing regulations. Therefore, issuance of a 
SMCRA permit does not authorize the permittee to initiate activities 
for which a permit, certification, or other authorization is required 
under the Clean Water Act. The final rules at 30 CFR 780.28(f)(2), 
784.28(f)(2), 816.57(a)(2), and 817.57(a)(2) that we are adopting today 
reiterate that fact.
    One commenter strongly disagreed with our statement in the preamble 
to proposed 30 CFR 780.28 and 784.28 that we did not anticipate that 
switching from perennial and intermittent streams to WOTUS would result 
in a significant expansion in the applicability of our rules because 
the vast majority of waters that may be affected by surface coal mining 
and reclamation operations are perennial and intermittent streams. This 
comment is now moot in light of our decision not to adopt WOTUS.
    We also wish to clarify that we use the terms perennial, 
intermittent, and ephemeral streams, as defined in 30 CFR 701.5, to 
implement the SMCRA regulatory program. Our definitions of those terms 
do not affect jurisdictional determinations under the Clean Water Act. 
The Corps and EPA are responsible for making those jurisdictional 
determinations.
    Although we have decided not to adopt WOTUS as part of the stream 
buffer zone rule, our existing rules will continue to provide 
protection to lakes, ponds, wetlands, and, to some extent, ephemeral 
streams by other means. Those rules fully implement the statutory 
provisions that form the basis for the stream buffer zone rule, i.e., 
sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B) and (11) of SMCRA, 
which require that, to the extent possible using the best technology 
currently available, surface coal mining operations be conducted so as 
to prevent additional contributions of suspended solids to streamflow 
or runoff outside the permit area and that surface coal mining and 
reclamation operations be conducted so as to minimize disturbances to 
and adverse impacts on fish, wildlife, and related environmental 
values.
    Most significantly, 30 CFR 780.16(b) and 784.21(b) require that 
each permit application include a fish and wildlife protection and 
enhancement plan. The plan must describe how, to the extent possible, 
using the best technology currently available, the operator will 
minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values during surface coal mining and reclamation 
operations and how enhancement of those resources will be achieved 
where practicable. The plan must be consistent with the requirements of 
30 CFR 816.97 or 817.97 and it must include protective measures to be 
taken during the active mining phase. The rule lists the establishment 
of buffer zones as one example of those protective measures.
    Under 30 CFR 816.97(a) and 817.97(a), the operator must, to the 
extent possible, using the best technology currently available, 
minimize disturbances and adverse impacts on fish and wildlife and 
related environmental values and must achieve enhancement of those 
resources where practicable. Paragraph (f) of 30 CFR 816.97 and 817.97 
provides that the operator must avoid disturbances to, enhance where 
practicable, restore, or replace wetlands and riparian vegetation along 
rivers and streams and bordering ponds and lakes. Paragraph (f) also 
requires that the operator avoid disturbances to, enhance where 
practicable, or restore habitats of unusually high value for fish and 
wildlife.
    With respect to water quality, 30 CFR 780.21(h) and 784.14(g) 
require that each permit application include a hydrologic reclamation 
plan indicating how the relevant requirements of 30 CFR part 816 or 
817, including sections 816.41 through 816.43 or 817.41 through 817.43, 
will be met. The plan must be specific to local hydrologic conditions 
and it must contain the steps to be taken to minimize disturbances to 
the hydrologic balance within the permit and adjacent areas. Under 30 
CFR 816.41(a) and 817.41(a), all surface and underground mining and 
reclamation activities must be conducted to minimize disturbance of the 
hydrologic balance within the permit and adjacent areas.

VIII. Section-by-section analysis: How are we revising our rules?

A. Sections 780.14 and 784.23 Operation Plan: Maps and Plans

    As proposed, we are revising 30 CFR 780.14(b)(11) and 784.23(b)(10) 
by replacing the terms ``coal processing waste bank'' and ``coal 
processing waste dam and embankment'' with ``refuse pile'' and ``coal 
mine waste impounding structure'' to employ terminology consistent with 
the definitions and performance standards that we adopted September 26, 
1983. See the discussion under the heading ``Changes to conform to 1983 
rule revisions'' in Part VIII.B. of this preamble for a more detailed 
explanation.
    In addition, as proposed, we are replacing the references to 
sections 780.35(c) and 816.71(b) in the former version of section 
780.14(c) with a reference to section 780.35 to be consistent with 
other changes that we are making to those rules. Those changes include 
moving the design certification requirement formerly located in section 
816.71(b) to section 780.35(b) to consolidate permitting requirements. 
In similar fashion, as proposed, we are deleting the reference to 
section 817.71(b) formerly located in section 784.23(c) because we are 
moving the design certification provisions previously located in 
section 817.71(b) to section 784.19(b) to consolidate permitting 
requirements. There is no need for a replacement cross-reference 
because section 784.23(c) already cross-references section 784.19 in 
its entirety.
    We received no comments concerning the proposed changes discussed 
above.

B. Sections 780.25 and 784.16 Reclamation Plan: Siltation Structures, 
Impoundments, Refuse Piles, and Coal Mine Waste Impounding Structures

1. Changes To Conform to 1983 Revisions to Definitions and Performance 
Standards
    On September 26, 1983 (48 FR 44006), we revised the definitions and 
performance standards in our regulations relating to coal mine waste to 
be more consistent with the terminology used by the Mine Safety and 
Health Administration (MSHA). As we stated at 48 FR 44009, col. 1, 
``[i]t is undesirable to have two regulatory programs for the same 
subject that contain conflicting standards or which use fundamentally 
different terminology.''
    Among other things, we adopted definitions of three new terms in 30 
CFR 701.5. ``Coal mine waste'' is defined as ``coal processing waste 
and

[[Page 75830]]

underground development waste.'' ``Impounding structure'' is defined as 
``a dam, embankment, or other structure used to impound water, slurry, 
or other liquid or semi-liquid material.'' ``Refuse pile'' is defined 
as ``a surface deposit of coal mine waste that does not impound water, 
slurry, or other liquid or semi-liquid material.'' The latter two terms 
are consistent with the terminology of MSHA's rules. ``Refuse pile'' 
replaces the term ``coal processing waste bank'' previously used in our 
rules, while ``impounding structure'' incorporates (but is not limited 
to) all structures that our rules previously referred to as coal 
processing waste dams or embankments.
    In concert with the new definition of coal mine waste, we revised 
our performance standards at 30 CFR 817.71-817.74 to eliminate the 
language that combined underground development waste with excess spoil 
for purposes of performances standards for underground mines. Because 
the definition of coal mine waste includes underground development 
waste, we revised our rules to specify that the disposal of underground 
development waste is subject to the performance standards for refuse 
piles (30 CFR 817.83) rather than the performance standards for the 
disposal of excess spoil that applied under the old rules.
    However, we did not revise our permitting requirements in a similar 
fashion at that time. Therefore, in our August 24, 2007, proposed rule, 
we proposed to modify our regulations in 30 CFR parts 780 and 784 to 
harmonize those rules with our 1983 changes to the definitions and 
performance standards concerning coal mine waste. In essence, in the 
proposed rule, we replaced the term ``coal processing waste banks'' 
with ``refuse piles'' and the term ``coal processing waste dams and 
embankments'' with references to coal mine waste impounding structures.
    As proposed, this final rule revises the heading and contents of 
sections 780.25 and 784.16 by replacing the terms ``coal processing 
waste bank'' and ``coal processing waste dam and embankment'' with 
``refuse pile'' and ``coal mine waste impounding structure.'' With 
these changes, our permitting requirements concerning coal mine waste 
employ terminology consistent with the definitions and performance 
standards for coal mine waste that we adopted on September 26, 1983.
    We received no comments on the revisions discussed above. However, 
some industry commenters opposed the September 26, 1983, rule changes 
that classified underground development waste as coal mine waste and 
required that coal mine waste (including underground development waste) 
disposed of outside the mine workings and excavations be placed in 
accordance with 30 CFR 817.83, which contains the performance standards 
for refuse piles. The commenters argued that underground development 
waste should be treated as excess spoil, not coal mine waste. The 
commenters' objections are untimely. The definition of coal mine waste 
in 30 CFR 701.5 is now a matter of settled law, as is the performance 
standard at 30 CFR 817.81(a), which requires that coal mine waste 
disposed of outside the mine workings and excavations be placed in 
designated coal mine waste disposal areas within the permit area. The 
existing regulations at 30 CFR 817.71(i) allow coal mine waste to be 
placed in excess spoil fills with the approval of the regulatory 
authority, but only if the waste is nontoxic and non-acid-forming and 
only if the waste is placed in accordance with 30 CFR 817.83 (the 
requirements for refuse piles).
    Several commenters expressed concern that the 1983 rule's 
classification of underground development waste as coal mine waste 
could prohibit the use of underground development material for 
construction of face-up areas, support facilities, and other beneficial 
uses. We do not understand how underground development waste could be 
used for the construction of face-up areas because the face-up of the 
mine must be completed and construction of mine adits must begin before 
underground development waste would be produced. Perhaps the commenters 
are interpreting the 1983 rules as classifying material removed as part 
of the face-up of the underground mine as underground development 
waste. If so, the commenters are misreading those rules. Nothing in the 
definitions of coal mine waste or underground development waste 
classifies face-up materials as either coal mine waste or underground 
development waste. In addition, nothing in our existing rules or the 
rules that we are adopting today would prohibit the use of underground 
development waste for construction of support facilities or other 
mining-related uses, provided the use of the waste for those purposes 
complies with all regulatory program requirements applicable to those 
uses. The final rules that we are adopting today apply only to the 
permanent disposal of coal mine waste (including underground 
development waste), not to the temporary use of those materials for 
mining-related purposes.
2. Paragraph (a)(2)
    This paragraph sets forth design requirements for all impoundments 
other than low hazard impoundments. As proposed, we are removing the 
last sentence of former paragraph (a)(2) of sections 780.25 and 784.16 
and redesignating the remainder of that paragraph as paragraph 
(a)(2)(i) of those sections. We are redesignating the last sentence of 
former paragraph (a)(2) as paragraph (a)(2)(ii). In addition, we are 
redesignating former subparagraphs (a)(2)(i) through (iv) of sections 
780.25 and 784.16 as subparagraphs (a)(2)(ii)(A) through (D) of those 
sections. We are making these redesignations because both the last 
sentence of former paragraph (a)(2) and former subparagraphs (i) 
through (iv) apply to all structures meeting the criteria of 30 CFR 
77.216(a), while the remainder of former paragraph (a)(2) applies only 
to those impoundments that meet the Class B or C criteria (now the 
Significant Hazard Class or High Hazard Class criteria, respectively) 
for dams in the U.S. Department of Agriculture, Natural Resources 
Conservation Service (NRCS) publication Technical Release No. 60, 
``Earth Dams and Reservoirs.''
    As proposed, we are revising redesignated paragraph (a)(2)(i) of 
sections 780.25 and 784.16 to update the incorporation by reference of 
the NRCS publication ``Earth Dams and Reservoirs,'' Technical Release 
No. 60 (210-VI-TR60, October 1985), by replacing the reference to the 
October 1985 edition with a reference to the superseding July 2005 
edition. Consistent with the terminology in the newer edition, we are 
replacing references to Class B or C dam criteria with references to 
Significant Hazard Class or High Hazard Class dam criteria, 
respectively. Only the terminology has changed--the actual criteria 
remain the same as before. The newer publication is not available from 
the National Technical Information Service, but is available online 
from the Natural Resources Conservation Service (the successor to the 
Soil Conservation Service). Consequently, we are deleting the ordering 
information pertinent to the National Technical Information Service and 
replacing it with the URL (Web address) at which the publication may be 
reviewed and from which it may be downloaded without charge. We are 
also updating the address and location of our administrative record 
room and updating the URL information (Web address) for the National 
Archives and Records Administration.
    We received no comments on the changes discussed above.

[[Page 75831]]

3. Paragraph (c)
    Paragraph (c) contains design requirements that apply to all 
impoundments. To improve clarity and consistency with other 
regulations, we are revising paragraph (c)(2) of sections 780.25 and 
784.16 as proposed by replacing the term ``Mine Safety and Health 
Administration'' with a citation to 30 CFR 77.216(a), which contains 
the MSHA impoundment criteria to which paragraph (c)(2) refers. Revised 
paragraph (c)(2) requires that plans for impoundments meeting MSHA 
criteria comply with MSHA's impoundment design requirements at 30 CFR 
77.216-2. We are deleting the requirement that those plans also comply 
with 30 CFR 77.216-1. The deleted requirement is not germane to permit 
applications and plans because it contains signage requirements that 
apply only to impoundments that already exist or are under 
construction. We are also making two nonsubstantive changes: Replacing 
``shall'' with ``must'' in keeping with plain language principles and, 
in the second sentence, deleting an obsolete reference to paragraph 
(a).
    The final rule also includes a new paragraph (c)(4). We originally 
proposed to redesignate paragraph (f) of sections 780.25 and 784.16 as 
paragraph (e) of those sections. In a nonsubstantive editorial 
revision, we are instead redesignating paragraph (f) [paragraph (e) in 
our 2007 proposed rule] as paragraph (c)(4) of sections 780.25 and 
784.16. The paragraph in question applies only to impoundments that 
meet certain criteria in NRCS Technical Release No. 60 or the criteria 
of 30 CFR 77.216(a). It has no relevance to other types of siltation 
structures or to refuse piles. Therefore, it is more appropriate as 
part of paragraph (c), which applies to all types of impoundments, 
including coal mine waste impoundments, rather than as a separate 
paragraph (e). Consistent with this redesignation, we are also deleting 
the references to paragraphs (b) [siltation structures] and (d) [coal 
mine waste impoundments and refuse piles] that appeared in proposed 
paragraph (e). Final paragraph (c)(4) is otherwise identical to 
proposed paragraph (e). As proposed, we also are revising this 
paragraph to be consistent with the terminology in the July 2005 
edition of NRCS Technical Release No. 60 by replacing references to 
Class B or C dam criteria with references to Significant Hazard Class 
or High Hazard Class dam criteria, respectively. Only the terminology 
has changed; the actual criteria remain the same as before.
    We received no comments on the changes discussed above.
4. Paragraph (d) Introductory Language
    The final rule includes new introductory language specifying that 
an applicant for a permit must comply with all applicable requirements 
in paragraphs (d)(1) through (3) if the applicant proposes to place 
coal mine waste in a refuse pile or impoundment or use coal mine waste 
to construct an impounding structure. This requirement, which is not 
new, is a nonsubstantive editorial change that reflects the structure 
of the final rule.
5. Paragraph (d)(1)
    We have extensively revised paragraph (d)(1) of sections 780.25 and 
784.16 in response to comments. Final sections 780.25(d)(1) and 
784.16(d)(1) are identical except that the reference to section 816.59 
in section 780.25(d)(1) is replaced with a reference to 817.59 in 
section 784.16(d)(1).
    This new paragraph contains requirements for minimizing adverse 
environmental impacts on perennial and intermittent streams and 
adjacent areas when a permit application proposes to construct a refuse 
pile or slurry impoundment or to use coal mine waste to construct an 
impounding structure. We are adopting these requirements under the 
authority of sections 515(b)(24) and 516(b)(11) of SMCRA. Those 
statutory provisions require that, to the extent possible using the 
best technology currently available, surface coal mining and 
reclamation operations be conducted to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values.
Discussion of General Comments Received on Paragraph (d)(1)
    Several commenters argued that we have no authority to adopt these 
regulations because section 515(f) of SMCRA, which contains 
requirements for refuse piles and slurry impoundments, only mentions 
criteria related to safety, not environmental protection. We do not 
agree with the commenters. SMCRA contains numerous environmental 
protection requirements, including those set forth in sections 
515(b)(24) and 516(b)(11), that apply to all surface coal mining and 
reclamation operations and all aspects of those operations, including 
the disposal of coal mine waste. The fact that section 515(f) does not 
mention environmental protection in no way suggests that coal mine 
waste disposal facilities need not comply with the environmental 
protection provisions of SMCRA or that we lack the authority to adopt 
regulations establishing environmental protection requirements for 
those facilities.
    Industry commenters strongly opposed the requirement in proposed 
paragraph (d)(1) for an analysis of alternatives for placement of coal 
mine waste. The commenters cited a variety of reasons, including 
excessive costs, delays in permitting, the probable lack of 
environmental benefits, the potential for conflict between the SMCRA 
regulatory authority's application of the alternatives analysis 
requirement and the approach adopted by the Clean Water Act permitting 
authority, duplication of effort with the Clean Water Act, a lack of 
justification under SMCRA, exceeding the intent of SMCRA, and a fear 
that this requirement could result in a never-ending cycle of analysis 
and litigation concerning whether the correct alternative was selected 
by the permit applicant and approved by the state regulatory authority. 
Many commenters stated that the requirement for an alternatives 
analysis has no basis in SMCRA and instead appears to be a mixture of 
provisions borrowed from the National Environmental Policy Act and the 
Clean Water Act.
    Nothing in the proposed alternatives analysis requirement in 
paragraph (d)(1) of sections 780.25 and 784.16 of the final rule is 
based upon the National Environmental Policy Act. We respectfully 
disagree with those commenters who argued that the requirement for an 
alternatives analysis is a Clean Water Act requirement that has no 
basis or justification under SMCRA and that exceeds the intent of 
SMCRA. We acknowledge that we derived this element of our proposed 
rules from the alternatives analysis requirements of the 404(b)(1) 
Guidelines in 40 CFR part 230, which include the substantive 
environmental criteria used in evaluating activities regulated under 
section 404 of the Clean Water Act. However, we concluded that a 
modified version of the alternatives analysis requirements in the 
404(b)(1) Guidelines is an appropriate means of obtaining the 
background data and analyses that both the applicant and the regulatory 
authority need to make informed decisions concerning compliance with 
the requirements of sections 515(b)(24) and 516(b)(11) of SMCRA, which 
provide that surface coal mining and reclamation operations must be 
conducted to minimize disturbances to and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible, 
using the best technology currently available.
    Therefore, paragraphs (d)(1)(ii) and (d)(1)(iii) of sections 780.25 
and 784.16

[[Page 75832]]

of this final rule apply the alternatives analysis requirement to all 
applications that propose to place coal mine waste in or within 100 
feet of a perennial or intermittent stream. In addition, paragraph 
(d)(1)(iii)(A) of these sections of the final rule applies more 
detailed analytical requirements to applications that propose to place 
coal mine waste in perennial or intermittent streams as opposed to 
applications that propose to place coal mine waste only within 100 feet 
of those streams.
    A few commenters criticized the analysis of alternatives provisions 
of the proposed rule because they did not completely parallel the 
requirements of the 404(b)(1) Guidelines in 40 CFR part 230. At least 
one commenter recommended that we incorporate the 404(b)(1) Guidelines 
by reference. We do not find this recommendation appropriate because 
the 404(b)(1) Guidelines are designed to implement the Clean Water Act, 
while our regulations implement SMCRA and must be based upon SMCRA 
requirements. Under section 702(a) of SMCRA, nothing in SMCRA may be 
construed as amending, modifying, repealing, or superseding any Clean 
Water Act requirement. However, there is also nothing in SMCRA that 
would compel or authorize us to adopt regulations that parallel or 
incorporate Clean Water Act requirements.
    SMCRA and the Clean Water Act provide for separate regulatory 
programs with different purposes and very different permitting 
requirements and procedures. In addition, as other commenters noted, 
SMCRA and the Clean Water Act differ considerably with respect to 
jurisdiction. The Clean Water Act focuses on regulating discharges of 
pollutants into waters of the United States, whereas SMCRA regulates a 
broad universe of environmental and other impacts of surface coal 
mining and reclamation operations, including impacts on water quantity, 
water quality, and terrestrial and aquatic ecosystems. We encourage 
coordination and cooperation between SMCRA regulatory authorities and 
the agencies administering the Clean Water Act. See the memorandum of 
understanding entitled ``Memorandum of Understanding among the U.S. 
Army Corps of Engineers, the U.S. Office of Surface Mining, the U.S. 
Environmental Protection Agency, and the U.S. Fish and Wildlife Service 
for the Purpose of Providing Concurrent and Coordinated Review and 
Processing of Surface Coal Mining Applications Proposing Placement of 
Dredged and/or Fill Material in Waters of the United States,'' which 
took effect February 8, 2005, and the provisions of this final rule 
that authorize the SMCRA regulatory authority to accept an analysis of 
alternatives completed for Clean Water Act purposes as meeting the 
requirements for an analysis of alternatives under this final rule, 
when and to the extent appropriate. However, we believe that 
maintaining the distinction between those programs is both 
administratively and legally appropriate. That conclusion is supported 
by the comments that we received from both industry and state 
regulatory authorities.
    Many industry commenters, supported by some, but not all, state 
regulatory authority commenters, stated that the proposed alternatives 
analysis requirement would introduce a major new element of 
uncertainty, and result in costly and wasteful duplication of effort on 
the part of permit applicants and state regulatory authorities. The 
commenters stated that this element of our proposed rule was 
inconsistent with our statement in the preamble to that rule that a 
primary reason for the rulemaking was to provide improved clarity and 
reduction of uncertainty regarding the meaning of the regulations. One 
commenter stated that at best the alternatives analysis requirement 
``adds yet another layer of redundant paperwork and analysis as it 
duplicates the federally-administered 404 process. At worst, OSM has 
set the stage for conflicts between the section 404 program and the 
largely state-implemented SMCRA programs.'' The commenter further 
stated that by imposing an alternatives analysis requirement on state 
regulatory authorities, we are ``flirting dangerously'' with creating 
conflicting alternatives analyses because ``the goals and objectives of 
SMCRA and corresponding state statutes may be different than those of 
the Corps and EPA under section 404.''
    While we understand the commenters' apprehensions, these comments 
are speculative in nature. There may be some initial uncertainty as 
regulatory authorities establish procedures and criteria for 
implementation of the alternative analysis requirements and determining 
least overall adverse impact on fish, wildlife, and related 
environmental values under this rule, but that uncertainty should 
subside once those procedures and criteria are in place.
    The Interstate Mining Compact Commission, writing on behalf of 
member state regulatory authorities, argued that the alternative 
analysis requirement is duplicative of requirements under the Clean 
Water Act that are already encompassed by the SMCRA permitting scheme. 
As discussed elsewhere in this preamble, we believe that the 
alternatives analysis requirement that we are adopting as part of this 
final rule differs from and serves a somewhat different purpose than 
the alternatives analysis requirement under the regulations and other 
documents implementing section 404 of the Clean Water Act. To the 
extent that duplication may exist, we encourage states to coordinate 
the processing of coal mining permit applications with the U.S. Army 
Corps of Engineers in accordance with a memorandum of understanding 
entitled ``Memorandum of Understanding among the U.S. Army Corps of 
Engineers, the U.S. Office of Surface Mining, the U.S. Environmental 
Protection Agency, and the U.S. Fish and Wildlife Service for the 
Purpose of Providing Concurrent and Coordinated Review and Processing 
of Surface Coal Mining Applications Proposing Placement of Dredged and/
or Fill Material in Waters of the United States,'' which took effect 
February 8, 2005. This final rule also authorizes the SMCRA regulatory 
authority to accept an analysis of alternatives completed for Clean 
Water Act purposes as meeting the requirements for an analysis of 
alternatives under this final rule, when and to the extent appropriate.
    The Commission and some, but not all, commenters representing 
individual state regulatory authorities also opposed the alternatives 
analysis requirement in the proposed rule because of state fiscal 
constraints and fear of the ``potentially overwhelming'' time and 
effort that would be required for state permitting personnel to 
adequately review and analyze alternatives.
    We anticipate that few, if any, state regulatory authorities will 
experience a significant increase in demands on their resources as a 
result of the alternatives analysis requirement in the final rule. West 
Virginia, one of the states most impacted by the rule, supported the 
proposed rule. Kentucky, another state that would be significantly 
impacted, estimated that, on average, the new requirement would add ten 
hours to the time required to process a permit application. We believe 
that the intangible environmental benefits of the rule (increased 
scrutiny of efforts to minimize adverse impacts on fish, wildlife, and 
related environmental values associated with perennial and intermittent 
streams) will outweigh what we anticipate will be a modest increase in 
demand on state regulatory authority resources.
    The U.S. Fish and Wildlife Service requested that we work with the 
Service

[[Page 75833]]

to build a process into the alternative analysis requirements in the 
final rule to protect unique and high value fish and wildlife 
resources. In response, we note that our fish and wildlife protection 
rules at 30 CFR 816.97(f) and 817.97(f) already require that the 
operator ``avoid disturbances to, enhance where practicable, or restore 
habitats of unusually high value for fish and wildlife.'' In addition, 
our permitting rules at 30 CFR 780.16 and 784.21 provide a role for the 
Service in determining fish and wildlife data collection requirements 
and reviewing the fish and wildlife protection plan in the permit 
application. Therefore, addition of the provision requested by the 
Service is not necessary.
Discussion of Specific Provisions of Paragraph (d)(1)
    In the final rule, the first sentence of paragraph (d)(1) of 
sections 780.25 and 784.16 provides that the permit applicant must 
design the operation to avoid placement of coal mine waste in or within 
100 feet of perennial and intermittent streams to the extent possible. 
We added this provision in response to EPA concerns and numerous 
comments urging greater protection for headwater streams because of 
their ecological importance and contribution to the function of the 
stream as a whole. In effect, the new sentence identifies avoiding 
placement of coal mine waste in or within 100 feet of perennial or 
intermittent streams as the preferred method of complying with the 
SMCRA requirement to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values with respect to those 
streams. That is, whenever avoidance of disturbance is reasonably 
possible, the rule establishes avoidance as the best technology 
currently available to meet the requirements of sections 515(b)(24) and 
516(b)(11) of SMCRA, which require minimization of disturbances and 
adverse impacts to fish, wildlife, and related environmental values to 
the extent possible using the best technology currently available. This 
provision of the final rule is consistent with our stream buffer zone 
rules at 30 CFR 816.57 and 817.57, which establish maintenance of an 
undisturbed buffer for perennial and intermittent streams as the best 
technology currently available to meet the requirements of sections 
515(b)(24) and 516(b)(11) of SMCRA, provided maintenance of an 
undisturbed buffer is reasonably possible.
    However, the final rule does not and cannot mandate avoidance in 
all cases for all stream segments. The provisions of SMCRA underlying 
this rule require minimization of disturbances and adverse impacts on 
fish, wildlife, and related environmental values only ``to the extent 
possible.'' Avoiding disturbance of the stream and maintenance of an 
undisturbed buffer zone for that stream is the ultimate means of 
minimizing adverse impacts on fish, wildlife, and related environmental 
values and hence is the default best technology currently available to 
comply with the statutory minimization requirement. However, there is 
sometimes no viable alternative to the construction of coal mine waste 
disposal facilities in perennial or intermittent streams and their 
buffer zones, in which case avoidance is not reasonably possible. Under 
those circumstances, SMCRA--and hence this final rule--do not require 
avoidance. Instead, the applicant must propose other methods of 
complying with the minimization requirement that are consistent with 
the proposed surface coal mining operations. We do not interpret SMCRA 
as authorizing us to prohibit surface coal mining operations in 
situations other than those specifically set forth in the Act. However, 
SMCRA does not override prohibitions that apply under other laws and 
regulations. Any such requirements and prohibitions will continue to 
apply according to the terms of those laws and regulations.
    Paragraph (d)(1)(i) of the final rule requires that the permit 
applicant explain, to the satisfaction of the regulatory authority, why 
an alternative coal mine waste disposal method or an alternative 
location or configuration that does not involve placement of coal mine 
waste in or within 100 feet of a perennial or intermittent stream is 
not reasonably possible. We added this requirement to reinforce the 
provision in paragraph (d)(1) of the final rule establishing avoidance 
of placement of coal mine waste in or within 100 feet of a perennial or 
intermittent stream, whenever avoidance is reasonably possible, as the 
best technology currently available to comply with the statutory 
requirement for minimization of disturbances and adverse impacts on 
fish, wildlife, and related environmental values to the extent possible 
using the best technology currently available.
    Paragraph (d)(1)(ii) of the final rule provides that, if the permit 
applicant is unable to design the operation to avoid placement of coal 
mine waste in or within 100 feet of a perennial or intermittent stream, 
the application must identify a reasonable range of alternative 
locations or configurations for any proposed refuse piles or coal mine 
waste impoundments. A number of commenters on a similar provision in 
the proposed rule expressed concern that this provision was too vague 
and could be interpreted as requiring an unlimited number of 
alternatives, including those that have no possibility of being 
implemented. In response to this concern, we have added language 
clarifying that this provision does not require identification of all 
potential alternatives and that only those reasonably possible 
alternatives that are likely to differ significantly in terms of 
impacts on fish, wildlife, and related environmental values need be 
identified and considered. The latter provision is consistent with the 
policies to which EPA and the Corps adhere in implementing section 404 
of the Clean Water Act. See the EPA/COE memorandum entitled 
``Appropriate Level of Analysis Required for Evaluating Compliance with 
the Section 404(b)(1) Guidelines Alternatives Requirements.''
    In response to the commenters' concerns, we also added language to 
paragraph (d)(1)(ii) of the final rule specifying that an alternative 
is reasonably possible if it conforms to the safety, engineering, 
design, and construction requirements of the regulatory program; is 
capable of being done after consideration of cost, logistics, and 
available technology; and is consistent with the coal recovery 
provisions of sections 816.59 and 817.59. In other words, nothing in 
the rule should be construed as elevating environmental concerns over 
safety considerations, as prohibiting the conduct of surface coal 
mining operations that are not otherwise prohibited under SMCRA or 
other laws or regulations, or as requiring consideration of 
unreasonably expensive or technologically infeasible alternatives.
    The portion of this rule that refers to ``consideration of cost, 
logistics, and available technology'' is derived from the EPA 
regulations at 40 CFR 230.10(a)(2), which define a practicable 
alternative for purposes of section 404 of the Clean Water Act. In 
interpreting this provision, the EPA/COE memorandum entitled 
``Appropriate Level of Analysis Required for Evaluating Compliance with 
the Section 404(b)(1) Guidelines Alternatives Requirements'' states 
that ``[t]he determination of what constitutes an unreasonable expense 
should generally consider whether the projected cost is substantially 
greater than the costs normally associated with this particular type of 
project.'' We have included similar language in paragraph

[[Page 75834]]

(d)(1)(ii)(B) of the final rule because (1) the concept of a 
practicable alternative for purposes of section 404 of the Clean Water 
Act is in some ways analogous to the determination of reasonably 
possible alternatives under this rule, and (2) the principle is 
consistent with the phrase ``to the extent possible'' in sections 
515(b)(24) and 516(b)(11) of SMCRA. See Part VI.D. of this preamble for 
a more extensive discussion of the rationale for our use of the term 
``reasonably possible'' and its consistency with statutory provisions.
    The final rule does not include the provision in paragraph 
(d)(1)(i)(C) of the proposed rule stating that the least costly 
alternative may not be selected at the expense of environmental 
protection solely on the basis of cost. One commenter objected to the 
proposed provision as being too extreme and subject to 
misinterpretation, noting that there may be situations in which cost 
could and should be the determining factor. We agree. Nothing in SMCRA 
compels adoption of this provision. In lieu of this provision, we have 
added language to paragraph (d)(1)(ii)(B) of the final rule clarifying 
that the fact that one alternative may cost somewhat more than a 
different alternative does not necessarily warrant exclusion of the 
more costly alternative from consideration. We believe that the revised 
language is more consistent with sections 515(b)(24) and 516(b)(11) of 
SMCRA, which require use of the best technology currently available, 
but only to the extent possible.
    Paragraph (d)(1)(iii) of the final rule provides that any 
application proposing to place coal mine waste in or within 100 feet of 
a perennial or intermittent stream must include an analysis of the 
impacts of the alternatives identified in paragraph (d)(1)(ii) on fish, 
wildlife, and related environmental values. The analysis must consider 
impacts on both terrestrial and aquatic ecosystems. These provisions 
are substantively identical to the corresponding provisions in the 
proposed rule.
    Paragraph (d)(1)(iii)(A) of the final rule provides that, for every 
alternative that proposes placement of coal mine waste in a perennial 
or intermittent stream, the analysis must include an evaluation of 
impacts on the physical, chemical, and biological characteristics of 
the stream downstream of the proposed refuse pile or coal mine waste 
impoundment, including seasonal variations in temperature and volume, 
changes in stream turbidity or sedimentation, the degree to which the 
coal mine waste may introduce or increase contaminants, and the effects 
on aquatic organisms and the wildlife that is dependent upon the 
stream. As discussed below, this paragraph of the final rule includes a 
number of changes from the proposed rule as a result of the comments 
that we received on the proposed rule.
    One commenter stated that--

    [T]he components of an alternatives analysis for a coal mine 
disposal activity, as set forth in proposed 30 CFR 784.16(d)(1)(ii), 
should be subdivided for clarity and certain of the components 
should be reconsidered in terms of their purpose or value. As 
written, 30 CFR 784.16(d)(1)(ii) requires ``* * * an evaluation of 
short-term and long-term impacts on the aquatic ecosystem, both 
individually and on a cumulative basis'' and goes on to specify that 
the evaluation ``must consider impacts on the physical, chemical, 
and biological characteristics of downstream flow, including 
seasonal variations in temperature and volume, changes in stream 
turbidity or sedimentation, the degree to which the coal mine waste 
may introduce or increase contaminants, the effects on aquatic 
organisms and the extent to which wildlife is dependent upon those 
organisms.'' As strung together, these requirements create a number 
of ambiguities, which will lead to problems in interpretation. The 
list also includes terms that have no recognized meaning, such as 
``biological characteristics of downstream flows.'' In addition to 
these ambiguities, this section also requires assessments that are 
new to the regulation of mining activities, including assessments of 
the effects of turbidity and of secondary impacts on wildlife that 
may be dependent on aquatic organisms in a potentially affected 
water body. In the absence of commonly recognized guidelines, the 
results of these assessments will be virtually impossible to 
validate.

    We have revised the rule to replace the potentially confusing 
phrase ``biological characteristics of downstream flows'' with clearer 
language requiring information on the biological characteristics of the 
stream downstream of the proposed refuse pile or coal mine waste 
impoundment. See paragraph (d)(1)(iii)(A) of final sections 780.25 and 
784.16. We also replaced the requirement for an evaluation of the 
extent to which wildlife is dependent upon aquatic organisms with a 
requirement for an evaluation of the effects of the proposed operation 
on wildlife that is dependent upon the stream. In addition, we decided 
not to adopt the portion of proposed paragraph (d)(1)(ii) requiring 
that the analysis include an evaluation of the short-term and long-term 
impacts of each alternative on the aquatic ecosystem, both individually 
and on a cumulative basis. This proposed requirement is subsumed within 
the other analytical requirements of the final rule and would not 
likely result in the submission of any meaningful additional 
information.
    However, we did not make further changes in response to this 
comment because the commenter did not explain how the requirements 
should be subdivided for clarity or why or how they create ambiguity. 
With respect to the commenter's statement that the assessments required 
by this rule will be impossible to validate in the absence of commonly 
recognized guidelines, we believe that the commenter may have 
misunderstood the purpose of the evaluation required by this rule. The 
data and analyses required by this rule are intended only to facilitate 
comparisons of the relative impacts of various alternatives on fish, 
wildlife, and related environmental values, not to establish 
reclamation standards. To the extent that the commenter may have meant 
that there are no generally accepted protocols for evaluating some of 
the listed characteristics, we believe that regulatory authorities have 
the technical capability to develop any needed protocols specific to 
conditions within their states.
    One state regulatory authority urged us to revise the rule to 
include consideration of impacts such as traffic, dust and noise on 
local residents who may be affected by a proposed operation. While we 
encourage permit applicants to consider these factors in designing 
their operations, we do not consider them to be disturbances or adverse 
impacts on fish, wildlife, and related environmental values within the 
context of sections 515(b)(24) and 516(b)(11) of SMCRA. Therefore, we 
are not including those factors as required components of the 
alternatives analysis under paragraph (d)(1)(iii) of the final rule.
    Paragraph (d)(1)(iii)(B) of the final rule allows the applicant to 
submit an analysis of alternatives prepared under 40 CFR 230.10 for 
Clean Water Act purposes in lieu of the analysis of impacts on fish, 
wildlife, and related environmental values required under paragraph 
(d)(1)(iii)(A) of the final rule. The regulatory authority will 
determine the extent to which that analysis satisfies the requirements 
of paragraph (d)(1)(iii)(A) of the final rule. These provisions of the 
final rule are similar to their counterparts in the proposed rule.
    One commenter expressed dismay that the rule did not require that 
the regulatory authority accept the Clean Water Act analysis of 
alternatives as fully meeting the requirements of this rule. We do not 
believe that addition of this requirement to our rules would be 
appropriate because the alternatives analysis required under the final 
rule must address all environmental impacts

[[Page 75835]]

(both aquatic and terrestrial) of surface coal mining operations, 
whereas the analysis of alternatives required under Clean Water Act 
regulations focuses on impacts to waters of the United States. However, 
under the final rule, the SMCRA regulatory authority has the discretion 
to determine that an analysis of alternatives conducted for Clean Water 
Act purposes satisfies the requirements for an analysis of alternatives 
under this final rule, in whole or in part, as appropriate.
    Paragraph (d)(1)(iv) of the final rule requires selection of the 
alternative with the least overall adverse impact on fish, wildlife, 
and related environmental values, including adverse impacts on water 
quality and aquatic and terrestrial ecosystems, to the extent possible. 
The proposed rule included an additional sentence specifying that if 
the applicant proposes to select a different alternative, the applicant 
must demonstrate, to the satisfaction of the regulatory authority, why 
implementation of the more environmentally protective alternative is 
not possible. The final rule does not include this sentence because we 
have determined that it is neither needed nor appropriate in view of 
the other changes that we have made to the rule. Specifically, we have 
added language to paragraph (d)(1)(ii) of the final rule limiting the 
alternatives that the applicant must identify to only those 
alternatives that are reasonably possible. In addition, we have added 
paragraph (d)(1)(i), which requires that the permit applicant explain, 
to the satisfaction of the regulatory authority, why an alternative 
that does not involve placement of coal mine waste in or within 100 
feet of a perennial or intermittent stream is not reasonably possible.
    The combination of these two changes means that the sentence in the 
proposed rule is no longer logical or appropriate because the only 
alternatives considered under the final rule are those that are 
reasonably possible, which means that, within the universe of 
reasonably possible alternatives identified, the applicant must select 
the alternative with the least overall adverse impact on fish, 
wildlife, and related environmental values. In other words, the 
sentence in the proposed rule no longer has any relevance or meaning 
because, under the final rule, the applicant does not have the option 
of proposing alternatives that are not reasonably possible. Given that 
change, the final rule provides that the applicant must select the 
alternative with the least overall adverse impact on fish, wildlife, 
and related environmental values.
    Some commenters requested that we define or explain the term 
``least overall adverse environmental impact.'' We do not believe that 
a meaningful definition is possible, given the somewhat subjective 
nature of the term and the site-specific nature of determinations under 
this rule. We expect that persons preparing permit applications and 
regulatory authority personnel reviewing those applications will use 
their best professional judgment in applying this standard. Consistent 
with the commonly accepted meaning of the words ``overall'' and 
``environmental,'' we have modified the rule to clarify that the scope 
of the term includes impacts to terrestrial ecosystems, not just 
impacts to water quality and aquatic ecosystems. The relative 
importance of these three components, as well as the constituents of 
each of those components, will vary from site to site. Therefore, they 
are not readily defined in a national rule. However, we have replaced 
the term ``least overall adverse environmental impact'' with the term 
``least overall adverse impact on fish, wildlife, and related 
environmental values'' to be consistent with the terminology of 
sections 515(b)(24) and 516(b)(11) of SMCRA and to provide greater 
clarity.
    EPA encouraged both permit applicants and SMCRA regulatory 
authorities to use a watershed approach in determining which 
alternative would have the least overall adverse impact on fish, 
wildlife, and related environmental values:

    A watershed approach expands the informational and analytic 
basis of site selection decisions to ensure impacts are considered 
on a watershed scale rather than only project by project. The idea 
being locational factors (e.g., hydrology, surrounding land use) are 
important to evaluating the indirect and cumulative impacts of the 
project. Watershed planning efforts can identify and prioritize 
where preservation of existing aquatic resources are important for 
maintaining or improving the quality (and functioning) of downstream 
resources. The objective of this evaluation is to maintain and 
improve the quantity and quality of the watershed's aquatic 
resources and to ensure water quality standards (numeric and 
narrative criteria, anti-degradation, and designated uses) are met 
in downstream waters.
    Permit applicants should work with federal and state regulatory 
authorities to identify appropriate and available information, such 
as existing watershed plans, or in the absence of such plans, 
existing information on current watershed conditions and needs, past 
and current mining (and other development) trends, cumulative 
impacts of past, present, and reasonable foreseeable future mining 
activities, and chronic environmental problems (e.g., poor water 
quality, CWA 303(d)-listed streams, etc.) in the watershed. The 
regulatory authorities can also provide information on the 
appropriate watershed scale to consider. The level of data and 
analysis for implementing a watershed approach should be 
commensurate with the scale of the project, to the extent 
appropriate and reasonable.

    We agree that the analysis of potential alternatives required under 
paragraph (d)(1)(ii) should appropriately consider the overall 
condition of the aquatic resources in the watershed, including any 
impacts from previous mining activities.
6. Proposed Paragraph (d)(2)
    In the proposed rule, paragraph (d)(2) of sections 780.25 and 
784.16 provided that each application for an operation that will 
generate or dispose of coal mine waste must describe the steps to be 
taken to avoid or, if avoidance is not possible, to minimize the 
adverse environmental impacts that may result from the construction of 
refuse piles and coal mine waste impoundments and impounding 
structures. The preamble to the proposed rule explained that this 
requirement applied to construction, maintenance, and reclamation of 
the alternative selected under paragraph (d)(1)(i)(C).
    EPA recommended that we revise the rule to incorporate the concepts 
of avoidance and minimization of adverse environmental impacts into the 
alternatives analysis required by paragraph (d)(1) of sections 780.25 
and 784.16 rather than placing them in a separate paragraph. EPA stated 
that the intended purpose of the alternatives analysis is to determine 
the means by which coal mine waste could be disposed of with the least 
adverse environmental impact. EPA further recommended removal of the 
preamble language in the proposed rule that specifies that the 
avoidance and minimization requirements in proposed paragraph (d)(2) 
only apply to the alternatives selected under proposed paragraph 
(d)(1)(i)(C). According to EPA, these changes would reduce potential 
uncertainty regarding the appropriate factors to consider in the 
alternatives analysis and would reinforce the requirement to evaluate 
different project locations and design elements when assessing the 
viability and environmental impacts of each location.
    After considering these comments and the changes that we made to 
paragraph (d)(1) in the final rule, we have decided not to adopt 
proposed paragraph (d)(2) because provisions of that paragraph are now 
redundant and unnecessary. Under 30 CFR 816.97(a) and 817.97(a), the

[[Page 75836]]

operator must, to the extent possible, using the best technology 
currently available, minimize disturbances and adverse impacts on fish 
and wildlife and related environmental values and must achieve 
enhancement of those resources where practicable. Paragraph (f) of 30 
CFR 816.97 and 817.97 provides that the operator must avoid 
disturbances to, enhance where practicable, restore, or replace 
wetlands and riparian vegetation along rivers and streams and bordering 
ponds and lakes. That paragraph also requires that the operator avoid 
disturbances to, enhance where practicable, or restore habitats of 
unusually high value for fish and wildlife. Paragraph (b)(1) of 30 CFR 
780.16 and 784.21 requires that the fish and wildlife protection and 
enhancement plan in the permit application be consistent with the 
requirements of 30 CFR 816.97 and 817.97, respectively. Therefore, 
proposed paragraph (d)(2) would not add any requirements that are not 
already found in 30 CFR 816.97 and 817.97.
    In addition, as revised in the final rule, paragraph (d)(1) of 
sections 780.25 and 784.16 provides that permit applicants must design 
their operations to avoid placement of coal mine waste in or within 100 
feet of a perennial or intermittent stream to the extent possible. This 
new provision establishes avoidance of disturbance of perennial and 
intermittent streams and their buffer zones as the best technology 
currently available to comply with the requirement under sections 
515(b)(24) and 516(b)(11) to minimize disturbances and adverse impacts 
on fish, wildlife, and related environmental values. However, the 
statutory minimization requirement applies only ``to the extent 
possible,'' and, given the realities of geology (which dictates where 
coal is located), topography, and mining mechanics and economics, it is 
not always possible to implement the ultimate form of minimization, 
which is avoidance of disturbances, and still conduct surface coal 
mining operations. Consequently, paragraph (d)(1) of the final rule 
requires that the applicant avoid disturbance only to the extent 
possible. Paragraph (d)(1)(i) of the revised final rule provides that, 
when a permit applicant proposes to construct a refuse pile or coal 
mine waste impounding structure in or within 100 feet of a perennial or 
intermittent stream, the applicant must explain, to the satisfaction of 
the regulatory authority, why an alternative that does not involve 
placement of coal mine waste in or within 100 feet of a perennial or 
intermittent stream is not reasonably possible. Therefore, adoption of 
proposed paragraph (d)(2) is no longer appropriate because, as revised, 
paragraph (d)(1) of the final rule requires consideration of avoidance 
as part of the alternatives analysis and selection process.
7. Paragraphs (d)(2) and (3)
    As proposed, we are combining former paragraphs (d) and (e) of 
sections 780.25 and 784.16, which contained design requirements for 
coal processing waste banks, and former paragraph (e), which contained 
design requirements for coal processing waste dams and embankments, 
into a substantially revised paragraph (d). Paragraph (d)(2), which 
contains design requirements specific to refuse piles, corresponds to 
former paragraph (d). Paragraph (d)(3), which contains design 
requirements specific to impoundments and impounding structures 
constructed of or intended to impound coal mine waste, corresponds to 
former paragraph (e). Because of changes in other provisions of 
paragraph (d), the nomenclature in the final rule differs slightly from 
the proposed rule in that proposed paragraph (d)(3) is codified as 
paragraph (d)(2) in the final rule and proposed paragraph (d)(4) is 
codified as paragraph (d)(3) in the final rule.
    As proposed, final paragraph (d)(2) of sections 780.25 and 784.16 
does not include the cross-reference to section 816.84 formerly found 
in section 780.25(d) and the cross-reference to section 817.84 formerly 
found in section 784.16(d). We are deleting those cross-references 
because final sections 780.25(d)(2) and 784.16(d)(2) pertain only to 
refuse piles, not to the coal mine waste impounding structures to which 
sections 816.84 and 817.84 apply. The deletion is not a substantive 
change because the former version of the rules did not pertain to coal 
mine waste impounding structures either.
    Similarly, as proposed, final paragraph (d)(3) of sections 780.25 
and 784.16 does not include the cross-reference to section 816.83 
formerly found in section 780.25(e) and the cross-reference to section 
817.83 formerly found in section 784.16(e). We are deleting those 
cross-references because final sections 780.25(d)(3) and 784.16(d)(3) 
pertain only to coal mine waste impoundments and impounding structures, 
not to the refuse piles to which sections 816.83 and 817.83 apply. The 
deletion is not a substantive change because the former version of the 
rules did not pertain to refuse piles either.
    In addition, revised paragraph (d)(3) of sections 780.25 and 784.16 
does not contain the requirement formerly found in sections 780.25(e) 
and 784.16(e) that each plan for an impounding structure comply with 30 
CFR 77.216-1. As proposed, we are deleting this cross-reference because 
30 CFR 77.216-1 does not include any design requirements. Instead, that 
rule consists solely of MSHA requirements for signage for existing 
impoundments and impoundments under construction. Consequently, there 
is no reason to retain this cross-reference because the referenced 
requirement is not relevant to preparation of plans or permit 
applications for proposed impoundments. Final paragraph (d)(3) retains 
the requirement that each plan for an impounding structure comply with 
30 CFR 77.216-2, which contains design requirements for impoundments 
and impounding structures.
    We received no comments on the changes discussed above.

C. Sections 780.28 and 784.28 Activities in or Adjacent to Perennial or 
Intermittent Streams

    As explained in the preamble to the proposed rule, we are adding 
new sections 780.28 and 784.28 because the review and approval of 
proposals to disturb the surface of lands within 100 feet of perennial 
and intermittent streams is a permitting action, not a performance 
standard. Consequently, as proposed, we are moving the permitting 
aspects of the stream buffer zone rules, which were formerly codified 
at 30 CFR 816.57(a)(1) and 817.57(a)(1) as part of the performance 
standards in subchapter K, to new sections 780.28 and 784.28, which are 
part of the permitting requirements of subchapter G. We are also 
extensively revising the proposed rules in response to comments.
    Sections 780.28 and 784.28 replace the rules formerly located at 30 
CFR 816.57(a)(1) and 817.57(a)(1), which provided that the regulatory 
authority may authorize activities on the surface of lands within 100 
feet of a perennial or intermittent stream only upon finding that the 
activities will not cause or contribute to the violation of applicable 
State or Federal water quality standards and will not adversely affect 
the water quantity and quality or other environmental resources of the 
stream. As discussed in Part VII of this preamble, we have decided to 
retain the scope of the original rules, which applied to perennial and 
intermittent streams, rather than change the scope to waters of the 
United States, as we proposed on August 24, 2007.

[[Page 75837]]

    In the proposed rule, paragraph (a) of sections 780.28 and 784.28 
defined their applicability, paragraph (b) established mapping 
requirements, paragraph (c) contained permit application requirements 
for obtaining a variance from the prohibition on disturbance of the 
buffer zone established under section 816.57 or section 817.57, 
paragraph (d) contained standards for regulatory authority approval of 
a requested variance, paragraph (e) established permit application and 
regulatory authority approval requirements for activities that are not 
subject to the prohibition on disturbance of the buffer zone, and 
paragraph (f) explained the relationship between our rules and Clean 
Water Act requirements.
    One commenter suggested that we streamline and simplify both the 
structure of these sections and their contents. The commenter requested 
that we modify the rule to more clearly distinguish between activities 
that will be conducted in the buffer zone for a perennial or 
intermittent stream and those that are planned to be conducted in the 
stream itself. The commenter also requested that we avoid describing 
the stream buffer zone requirement as a ``prohibition'' and argued that 
the new mapping requirements in proposed paragraph (b) were 
unnecessary. We have accepted these comments and revised the rules 
accordingly. However, we did not adopt the actual rewrite of the rules 
that the commenter provided. In addition, while sections 780.28 and 
784.28 of the final rule do not refer to the stream buffer zone 
requirements of sections 816.57 and 817.57 as a prohibition, we do not 
agree with the commenter that use of that term would be an incorrect 
characterization. We continue to use that term in the preamble when 
appropriate.
    We also extensively restructured and revised these sections of the 
proposed rule in response to numerous comments (1) urging greater 
protection for headwater streams in view of their importance to the 
function and productivity of the stream as a whole, and (2) emphasizing 
that maintenance of undisturbed buffer zones of mature native 
vegetation is the best technology currently available to achieve the 
requirements of sections 515(b)(24) and 516(b)(11) of the Act 
concerning minimization of disturbances and adverse impacts on fish, 
wildlife, and related environmental values. Commenters objected to our 
preamble discussion of these sections in the proposed rule in which we 
stated that a rule establishing a buffer zone as the best technology 
currently available would be inconsistent with the definition of ``best 
technology currently available'' in 30 CFR 701.5 because it would not 
provide sufficient flexibility to accommodate advances in science and 
technology. In particular, commenters noted that we cited no technical 
or other support for the proposition that there are equally effective 
alternatives to buffer zones for purposes of meeting the requirements 
of sections 515(b)(24) and 516(b)(11) of SMCRA, which require that 
surface coal mining and reclamation operations be conducted so as to 
minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible using the best 
technology currently available.
    Our discussion of the meaning of best technology currently 
available in the preamble to the proposed rule focused on sediment 
control and meeting the requirements of sections 515(b)(10)(B)(i) and 
516(b)(9)(B) of SMCRA, which provide that surface coal mining 
operations must be conducted in a manner that prevents, to the extent 
possible using the best technology currently available, additional 
contributions of suspended solids to streamflow or to runoff outside 
the permit area. We are not repeating that discussion in this preamble, 
although it remains valid with respect to sediment control. However, 
sediment control is the focus of only two of the four statutory 
provisions underlying the stream buffer zone rule and is the subject of 
only half of the definition of ``best technology currently available'' 
in 30 CFR 701.5.
    We are revising sections 780.28 and 784.28 to clarify that 
maintenance of an undisturbed 100-foot buffer between the stream and 
mining and reclamation activities conducted on the surface of lands is 
the default best technology currently available to meet the underlying 
statutory requirements whenever the stream segment in question need not 
be disturbed and it is possible to leave an undisturbed 100-foot 
buffer. In other words, the final rule requires maintenance of an 
undisturbed l00-foot buffer unless the permit applicant can demonstrate 
to the satisfaction of the regulatory authority that maintaining a 100-
foot buffer is either not reasonably possible or not necessary to meet 
the fish and wildlife and hydrologic balance protection provisions of 
the regulatory program. We anticipate that the latter demonstration 
will be difficult to make with respect to fish and wildlife protection 
requirements unless the stream is highly polluted or the land within 
the buffer has been and continues to be significantly disturbed or 
degraded by activities such as intensive agriculture.
    In summary, we have added the following requirements in response to 
comments:
     The regulatory authority's decision must be made in the 
form of written findings.
     For activities to be conducted in a perennial or 
intermittent stream (including the activities listed in paragraphs 
(b)(2) through (b)(4) of sections 816.57 and 817.57), the permit 
application must demonstrate, and the regulatory authority must find, 
that avoiding disturbance of the stream is not reasonably possible. See 
Part VI.D. of this preamble for a more extensive discussion of our 
rationale for adopting the term ``reasonably possible'' and its 
consistency with statutory provisions. We also added a requirement that 
the permit include a condition requiring a demonstration of compliance 
with the Clean Water Act in the manner specified in paragraph (a)(2) of 
section 816.57 or section 817.57 before the permittee may conduct any 
activities in a perennial or intermittent stream that require 
authorization or certification under the Clean Water Act.
     For activities to be conducted within 100 feet of a 
perennial or intermittent stream, but not in the stream itself, the 
permit application must demonstrate, and the regulatory authority must 
find, that avoiding disturbance of the stream is either not reasonably 
possible or not necessary to meet the fish and wildlife and hydrologic 
balance protection provisions of the regulatory program. This 
requirement applies only to activities that will occur on land subject 
to the buffer requirement of paragraph (a)(1) of sections 816.57 and 
817.57. It does not apply to activities conducted on lands included 
within the scope of paragraph (b) of sections 816.57 and 817.57; i.e., 
to what would have been the buffer zone for those segments of a 
perennial or intermittent stream for which the regulatory authority 
approves one or more of the activities listed in paragraphs (b)(1) 
through (b)(4) of section 816.57 or 817.57. See Part VIII.I. of this 
preamble.
    For purposes of these sections, the requirement to demonstrate that 
avoidance of disturbance of the stream or buffer zone is not reasonably 
possible should not be construed as elevating environmental concerns 
over safety considerations, as prohibiting the conduct of surface coal 
mining operations that are not otherwise prohibited under SMCRA or 
other laws, as prohibiting maximization of coal

[[Page 75838]]

recovery to the extent provided in sections 816.59 and 817.59, or as 
requiring unreasonably excessive expenditures to avoid disturbance. 
However, by itself, the fact that designing and conducting the 
operation to avoid disturbance of the stream or buffer zone may be more 
expensive than designing and conducting it to include disturbance of 
the stream or buffer zone does not necessarily mean that avoidance of 
disturbance is not reasonably possible. Consistent with the statutory 
directive to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible, 
using the best technology currently available, the permit applicant and 
the regulatory authority must weigh the environmental benefits of 
avoiding disturbance against the cost of doing so and determine the 
appropriate balance based on site-specific environmental, economic, 
operational, and engineering considerations, not the financial status 
of the permit applicant.
    The U.S. Fish and Wildlife Service recommended that we revise these 
rules to include language similar to that used in our rules governing 
selection of alternatives under the alternatives analysis requirements 
for coal mine waste and excess spoil in sections 780.25 and 780.35. We 
are not adopting this recommendation because an alternatives analysis 
is not a part of our stream buffer zone rules. For those situations in 
which an alternatives analysis is required under section 780.25(d)(1) 
or 780.35(a)(3), there is no need to replicate that requirement here. 
Those rules and their preamble already provide guidance for the 
identification of reasonably possible alternatives and require 
selection of the alternative with the least overall adverse impact on 
fish, wildlife, and related environmental values.
    The U.S. Fish and Wildlife Service also requested that we work with 
the Service to build a process into these sections of the final rule to 
protect unique and high value fish and wildlife resources and to 
develop design standards that would provide greater specificity as to 
how the decision criteria for granting variances from the stream buffer 
zone requirements will be applied. In response, we note that our fish 
and wildlife protection rules at 30 CFR 816.97(f) and 817.97(f) already 
require that the operator ``avoid disturbances to, enhance where 
practicable, or restore habitats of unusually high value for fish and 
wildlife.'' In addition, our permitting rules at 30 CFR 780.16 and 
784.21 provide a role for the Service in determining fish and wildlife 
data collection requirements and reviewing the fish and wildlife 
protection and enhancement plan in the permit application. Therefore, 
we believe that our existing rules provide adequate opportunity for 
involvement by the Service and that addition of the provisions 
requested by the Service would be redundant. However, we are willing to 
work with the Service in developing suggested guidelines for 
application of paragraphs (c)(3)(ii) and (e)(2)(ii) of sections 780.28 
and 784.28; i.e., identifying measures and techniques that may 
constitute the best technology currently available under various 
situations to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible, as 
required by sections 780.16(b), 784.21(b), 816.97(a), and 817.97(a).
    Several commenters requested that we clarify in the preamble that 
section 784.28 applies only to lands upon which surface activities will 
exist and lands immediately adjacent to those lands, not to areas that 
merely overlie underground operations associated with an underground 
mine. We agree with the position stated by the commenters and have 
inserted the word ``surface'' in the heading and other provisions of 
section 784.28 to provide added clarity. One commenter expressed 
concern that use of the terms ``adjacent'' or ``adjacent area'' could 
result in the requirements of this rule being applied to lands 
overlying the underground mine workings because the definition of 
``adjacent area'' in 30 CFR 701.5 includes areas with ``probable 
impacts from underground workings.'' We find the commenter's concern to 
be unfounded. The definition of adjacent area clearly states that the 
term's meaning must be determined in the context in which the term is 
used. Nothing in the context of the final rule that we are adopting 
today suggests that section 784.28 should or could be applied to the 
area overlying underground workings, except in the narrow situation in 
which that area happens to be coincident with or within 100 feet of an 
area upon which there will be surface activities associated with the 
underground mine.
    Final sections 780.28 and 784.28 are identical with the exception 
of appropriate modifications to reflect the differences between surface 
mining and underground mining. Most significantly, in section 784.28, 
the term ``surface mining activities'' is replaced by language that 
clarifies that the requirements of that section apply only to surface 
activities conducted on the surface of lands in connection with an 
underground coal mining operation. The following paragraphs discuss 
each element of final sections 780.28 and 784.28.
1. Final Paragraph (a)
    Paragraph (a)(1) of final sections 780.28 and 784.28 provides that, 
except as otherwise specified in paragraph (a)(2), those sections apply 
to applications to conduct activities in perennial or intermittent 
streams or on the surface of lands within 100 feet, measured 
horizontally, of perennial or intermittent streams. This paragraph 
reflects the fact that, under sections 816.57(a) and 817.57(a), we 
prohibit surface activities that would disturb the surface of lands 
within 100 feet of perennial and intermittent streams unless the 
regulatory authority approves a variance from that prohibition or 
unless the exception in paragraph (b) of sections 816.57 and 817.57 
applies. We have added a clause clarifying that the l00-foot buffer 
zone must be measured horizontally, consistent with generally accepted 
practice and convention with respect to distance requirements. We 
originally proposed to include this clause in the mapping requirements 
of paragraph (b), but we moved it to paragraph (a) as a result of our 
decision not to adopt proposed paragraph (b). As we stated in the 
preamble to proposed paragraph (b), the 100 feet must be measured from 
the ordinary high water mark of the stream, consistent with the Corps 
of Engineers' practices for establishing jurisdictional limits for 
waters of the United States.
    We are adding paragraph (a)(2)(i) to specify that sections 780.28 
and 784.28 do not apply to applications under section 785.21 for 
permits for coal preparation plants not located within the permit area 
of a mine. This provision reflects the fact that we did not propose any 
changes to the rules concerning those preparation plants in sections 
785.21 and 827.12 of our regulations and the fact that we do not intend 
for this final rule to alter those rules with respect to the 
applicability of the stream buffer zone rules to coal preparation 
plants not located in the permit area of a mine. Section 827.12 of our 
rules does not apply the stream buffer zone rule in sections 816.57 and 
817.57 to coal preparation plants not located within the permit area of 
a mine. See 48 FR 20399, May 5, 1983.
    We are adding paragraph (a)(2)(i) because, as part of this final 
rule, we are moving the permitting aspects of the previous version of 
the stream buffer zone rule in sections 816.57 and 817.57 to new 
sections 780.28 and 784.28.

[[Page 75839]]

Existing section 785.21(c) provides that coal preparation plants not 
located within the permit area of a mine are subject not only to the 
special permitting requirements of section 785.21, but also to ``all 
other applicable requirements of this subchapter.'' ``This subchapter'' 
refers to subchapter G of chapter VII, which contains the permitting 
requirements for all surface coal mining and reclamation operations. 
Thus, to ensure that section 785.21(c) is not now interpreted as 
including the newly added permitting requirements related to the stream 
buffer zone rule, we are adding the exception in paragraph (a)(2)(i) of 
sections 780.28 and 784.28.
    We are also adding paragraph (a)(2)(ii) to clarify that paragraphs 
(b) through (e) of sections 780.28 and 784.28 do not apply to 
diversions of perennial or intermittent streams, which are governed by 
sections 780.29, 784.29, 816.43, and 817.43. This change reflects the 
1983 rules, in which the findings and substantive requirements 
applicable to the approval of stream-channel diversions were specified 
primarily in the stream-channel diversion rules rather than the stream 
buffer zone rules. Paragraph (b)(1) of sections 816.43 and 817.43 
contains the finding that the regulatory authority must make before 
approving a proposed stream-channel diversion. See Part VIII.G. of this 
preamble for a discussion of the changes that we are making to the 
stream-channel diversion rules.
2. Proposed Paragraph (b)
    Proposed paragraph (b) would have required that maps submitted as 
part of the permit application show all waters of the United States 
that are located either within the proposed permit area or within the 
adjacent area, as that term is defined at 30 CFR 701.5. However, with 
our decision not to change the scope of the stream buffer zone rule 
from perennial and intermittent streams to waters of the United States, 
there is no longer any need for the proposed mapping requirement. The 
existing requirements in sections 779.25(a)(7) and 783.25(a)(7), which 
require that permit application maps show streams, lakes, ponds, and 
springs located within the proposed permit and adjacent areas, are 
adequate in that they require mapping of all perennial and intermittent 
streams located in or within 100 feet of the permit area. Therefore, 
comments opposing the adoption of proposed paragraph (b) are now moot 
and will not be discussed further.
3. Final Paragraph (b)
    Paragraph (b) of sections 780.28 and 784.28 establishes application 
requirements for persons seeking to conduct activities in a perennial 
or intermittent stream as part of one of the activities listed in 
paragraphs (b)(2) through (b)(4) of section 816.57 or 817.57. Those 
activities include construction of bridge abutments and other stream-
crossing structures in streams, construction of sedimentation pond 
embankments in streams, and construction of excess spoil fills and coal 
mine waste disposal facilities in streams. The application must 
demonstrate that avoiding disturbance of the stream is not reasonably 
possible and that the proposed activities will comply with all 
applicable requirements in paragraphs (b) and (c) of section 816.57 or 
817.57. These requirements, which we have adopted in response to 
comments urging greater protection for headwater streams, as discussed 
in Part VI.D. of this preamble, are more specific than paragraph (e) of 
the proposed rule, which would have required only a demonstration that 
to the extent possible, the applicant would use the best technology 
currently available as required by the hydrologic balance protection 
requirements of 30 CFR 816.41(d) or 817.41(d) and the fish and wildlife 
protection requirements of 30 CFR 816.97(a) or 817.97(a).
4. Final Paragraph (c)
    Paragraph (c) of sections 780.28 and 784.28 contains application 
requirements for persons seeking to conduct surface activities that 
would disturb the surface of land within 100 feet of a perennial or 
intermittent stream, but that would not take place in the stream 
itself. This paragraph applies only to activities that will occur on 
lands subject to the buffer requirement of paragraph (a) of sections 
816.57 and 817.57. It does not apply to activities conducted on lands 
included within the scope of paragraph (b) of sections 816.57 and 
817.57; i.e., to what would have been the buffer zone for stream 
segments for which the regulatory authority approves one or more of the 
activities listed in paragraphs (b)(1) through (b)(4) of section 816.57 
or 817.57.
    Under paragraph (c), the application must demonstrate that avoiding 
disturbance of land within 100 feet of the stream either is not 
reasonably possible or is not necessary to meet the fish and wildlife 
and hydrologic balance protection provisions of the regulatory program. 
In addition, the application must identify any lesser buffer that is 
proposed instead of maintaining a 100-foot buffer between surface 
activities and the perennial or intermittent stream. Finally; the 
application must explain how the lesser buffer, together with any other 
proposed protective measures, constitute the best technology currently 
available to (1) prevent the contribution of additional suspended 
solids to streamflow or runoff outside the permit area to the extent 
possible, as required by section 780.21(h) or 784.14(g) and section 
816.41(d)(1) or 817.41(d)(1), and (2) minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values to the 
extent possible, as required by section 780.16(b) or 784.21(b) and 
section 816.97(a) or 817.97(a). Final paragraph (c) is similar to 
paragraph (c) of the proposed rule except for the first of these 
requirements [the one codified in paragraph (c)(1)], which we added in 
response to comments urging greater protection for headwater streams, 
as discussed in Part VI.D. of this preamble.
    Paragraph (c)(3) of sections 780.28 and 784.28 refers to certain 
other OSM rules. Among those rules, sections 816.41(d) and 817.41(d) 
require, in relevant part, that mining operations prevent, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area. They implement, in part, the sedimentation prevention 
requirements of sections 515(b)(10)(B)(i) and 516(b)(9)(B) of SMCRA, 
respectively. Sections 816.97(a) and 817.97(a) require, in relevant 
part, that, to the extent possible using the best technology currently 
available, the operator minimize disturbances and adverse impacts on 
fish, wildlife, and related environmental values. They implement, in 
part, the fish and wildlife protection requirements of sections 
515(b)(24) and 516(b)(11) of SMCRA, respectively. Sections 780.21(h) 
and 784.14(g) require that each permit application include a hydrologic 
reclamation plan designed to implement, among other things, the 
requirements of sections 816.41(d) and 817.41(d), respectively. 
Sections 780.16(b) and 784.21(b) require that each permit application 
include a fish and wildlife protection and enhancement plan designed to 
implement the requirements of sections 816.97(a) and 817.97(a), 
respectively.
5. Final Paragraph (d)
    Paragraph (d)(1) of sections 780.28 and 784.28 provides that before 
approving any surface activities in a perennial or intermittent stream, 
the regulatory authority must find in

[[Page 75840]]

writing that avoiding disturbance of the stream is not reasonably 
possible and the plans submitted with the application meet all 
applicable requirements in paragraphs (b) and (c) of section 816.57 or 
817.57. The findings are the same as the demonstration that the 
applicant must make in the application under paragraph (b) of these 
sections. These findings, which we have adopted in response to comments 
urging greater protection for headwater streams, as discussed in Part 
VI.D. of this preamble, are more specific than the corresponding 
provisions of paragraph (e) of the proposed rule, which would have 
required only that the regulatory authority find that, to the extent 
possible, the applicant will use the best technology currently 
available as required by the hydrologic balance protection requirements 
of 30 CFR 816.41(d) or 817.41(d) and the fish and wildlife protection 
requirements of 30 CFR 816.97(a) or 817.97(a).
    We are also adopting a new paragraph (d)(2) of sections 780.28 and 
784.28 in response to comments that we received on proposed paragraph 
(f) of those sections. Paragraph (d)(2) provides that before approving 
a permit application in which the applicant proposes to conduct surface 
activities in a perennial or intermittent stream, the regulatory 
authority must include a permit condition requiring a demonstration of 
compliance with the Clean Water Act in the manner specified in 
paragraph (a)(2) of sections 816.57 and 817.57 before the permittee may 
conduct those activities. This requirement applies to the extent that 
the activities require authorization or certification under the Clean 
Water Act. Please refer to the preamble discussion of paragraph (f) for 
an explanation of the rationale for this provision.
6. Final Paragraph (e)
    Paragraph (e) of sections 780.28 and 784.28 specifies that before 
approving any surface activities that would disturb the surface of land 
subject to the buffer requirement of section 816.57(a)(1) or 
817.57(a)(1), the regulatory authority must find in writing that the 
applicant has made the demonstrations required under paragraph (c) of 
sections 780.28 and 784.28. The final rule is similar to paragraph (d) 
of the proposed rule except that we decided not to adopt the provision 
in paragraph (d)(1) of the proposed rule that would have established a 
determination by the regulatory authority that the measures proposed by 
the applicant would be no less effective in meeting the requirements of 
the regulatory program than maintenance of an undisturbed buffer under 
paragraph (a) of section 816.57 or 817.57 as a prerequisite for 
approval.
    Some commenters objected to this proposed requirement, noting that 
the proposed rule did not include a corresponding requirement for a 
similar demonstration in the permit application. They also stated that 
the focus of any finding should be on whether the buffer and related 
measures were effective in meeting other regulatory program 
requirements, and that it would be very difficult to quantify the 
theoretical effectiveness of a 100-foot buffer compared to a lesser 
buffer on a site-specific basis, as the proposed rule would have 
required. We agree. Therefore, we are not including a requirement for 
the proposed finding in the final rule. The replacement finding in 
paragraph (e)(1) of sections 780.28 and 784.28 in the final rule has a 
counterpart in the permit application requirements of paragraph (c) and 
focuses on whether and how the statutory and regulatory requirements to 
use the best technology currently available to prevent additional 
contributions of suspended solids to streamflow or runoff outside the 
permit area to the extent possible and to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values to 
the extent possible will be met.
    The findings required by paragraph (e) of sections 780.28 and 
784.28 replace the finding that the regulatory authority had to make 
under paragraph (a)(1) of the 1983 version of sections 816.57 and 
817.57 before authorizing activities that would disturb the surface of 
lands within 100 feet of a perennial or intermittent stream. The 
provision that we are deleting from sections 816.57 and 817.57 stated 
that, before authorizing an activity closer than 100 feet to a 
perennial or intermittent stream, the regulatory authority must find 
that the activity 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. That requirement has no direct counterpart in 
sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), or 516(b)(11) of 
SMCRA, which, as previously discussed, are the provisions of SMCRA that 
form the basis for the stream buffer zone rule.
    The introductory language of sections 515(b)(10) and 516(b)(9) of 
SMCRA does provide that performance standards for surface coal mining 
operations must include a requirement for the minimization of 
disturbances to the quality and quantity (or, in the case of section 
516(b)(9), just the quantity) of water in surface and ground water 
systems. However, that language does not stand alone as an independent 
requirement. Instead, when read in its entirety, section 515(b)(10) 
provides that the requirement for minimization of disturbances to water 
quality and quantity must be achieved by implementation of the measures 
and techniques described in subparagraphs (A) through (F) of section 
515(b)(10). Similarly, section 516(b)(9) provides that the requirement 
for minimization of disturbances to water quantity must be achieved by 
implementation of subparagraphs (A) and (B) of section 516(b)(9).
    In addition, sections 515(b)(10)(B)(i) and 516(b)(9)(B) refer only 
to the prevention of additional contributions of suspended solids. 
Those paragraphs provide that contributions of suspended solids to 
streamflow must not be in excess of requirements set by applicable 
State or Federal law, but they do not mention any other water quality 
parameter. Therefore, that provision by itself does not authorize the 
required finding previously found in paragraph (a)(1) of sections 
816.57 and 817.57. Furthermore, the SMCRA regulatory authority is not 
necessarily in the best position to determine whether a proposed 
activity will cause or contribute to a violation of applicable State or 
Federal water quality standards for any parameter. Those standards and 
parameters are established and implemented under the authority of the 
Clean Water Act (33 U.S.C. 1251 et seq.), not SMCRA, and are sometimes 
administered by an agency other than the SMCRA regulatory authority. 
Under 30 CFR 780.18(b)(9) and 784.13(b)(9), the SMCRA permit 
application must include a description of the steps to be taken to 
comply with the requirements of the Clean Air Act (42 U.S.C. 7401 et 
seq.), the Clean Water Act (33 U.S.C. 1251 et seq.), and other 
applicable air and water quality laws and regulations, but there is no 
requirement that the SMCRA regulatory authority pass judgment on the 
adequacy of that description or on the adequacy of the steps that the 
applicant proposes to take.
    As discussed above, sections 515(b)(10)(B)(i) and 516(b)(9)(B) of 
SMCRA provide that ``in no event shall such contributions [of suspended 
solids] be in excess of requirements set by applicable State or Federal 
law.'' This language originated in H.R. 2, the House of 
Representatives' version of the legislation that became SMCRA. In

[[Page 75841]]

describing the intent of these provisions, the House Committee on 
Interior and Insular Affairs stated:

    In cases where there will be water discharge from the mine 
sites, the number of such discharges should be minimized by 
collectively controlling and channeling the watercourse into an 
acceptable receiving stream or area location. It also should be 
understood that prior to any discharge off the permit area, the 
discharge should be treated to remove pollutants that may be 
present. Such treatment must, at a minimum, meet the requirements of 
this Act and insure compliance with applicable local, State, or 
Federal water quality requirements.

H. Rep. No. 95-218 at 116 (1977).

    Nothing in the language of the Act or the legislative history 
quoted above mandates retention of the provision that we are removing 
from paragraph (a)(1) of sections 816.57 and 817.57. The statutory 
provisions are clearly intended to ensure treatment of discharges from 
the minesite that leave the permit area. Those requirements are already 
addressed by the performance standards at 30 CFR 816.42 and 817.42, 
which require that discharges of water from areas disturbed by surface 
or underground 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 promulgated by the U.S. 
Environmental Protection Agency set forth in 40 CFR Part 434.'' 
Similarly, other existing rules already cover the permit application 
phase in that the determination of probable hydrologic consequences of 
the proposed operation must include findings on what impact the 
proposed operation will have on sediment yields from the disturbed area 
and certain water quality parameters, including suspended solids. See 
30 CFR 780.21(f)(3)(iv) and 784.14(e)(3)(iii). Under 30 CFR 780.21(h) 
and 784.14(g), the hydrologic reclamation plan submitted with the 
permit application must include a description of how the relevant 
requirements of 30 CFR part 816 or 817, including the water quality 
requirements of section 816.42 or 817.42, will be met and the measures 
to be taken to ``prevent, to the extent possible using the best 
technology currently available, additional contributions of suspended 
solids to streamflow.''
    In addition, the absolute nature of the ``will not adversely 
affect'' language formerly found in paragraph (a)(1) of sections 816.57 
and 817.57 is inconsistent with paragraphs (b)(10)(B)(i) and (b)(24) of 
section 515 and paragraphs (b)(9)(B) and (b)(11) of section 516 of the 
Act, all of which provide that surface coal mining operations must be 
conducted to meet the requirements of those paragraphs ``to the extent 
possible'' using the ``best technology currently available.'' The 
appropriate standard under sections 515(b)(24) and 516(b)(11) is 
minimization of disturbances and adverse impacts on fish, wildlife, and 
related environmental values. While avoidance is the ultimate form of 
minimization, there is no statutory basis for a rule that requires 
absolute avoidance of all adverse effects. Such a rule would run afoul 
of the plain language of sections 515(b)(24) and 516(b)(11) the Act, 
which requires only minimization of disturbances and adverse impacts 
and then only to the extent possible using the best technology 
currently available.
    As discussed more fully in Part III.D. of this preamble, the 
preamble to the 1983 version of the stream buffer zone rules (``the 
1983 preamble'') recognizes that the protection afforded by those rules 
need not be absolute. It acknowledges that some adverse impacts on 
hydrology and fish, wildlife, and related environmental values are 
unavoidable because of the nature of surface coal mining operations. 
Furthermore, the 1983 preamble states that ``OSM recognizes that some 
surface mining activities can be conducted within 100 feet of a 
perennial or an intermittent stream without causing significant adverse 
impacts on the hydrologic balance and related environmental values,'' 
thus implying that some adverse impacts would occur. 48 FR 30313, col. 
1, June 30, 1983, emphasis added. Similarly, ``final Sec.  816.57 is 
intended to protect significant biological values in streams.'' Id., 
col. 3, emphasis added. And, with respect to stream diversions, the 
1983 preamble specifies that--

    Alteration of streams may have adverse aquatic and ecological 
impacts on both diverted stream reaches and other downstream areas 
with which they merge. However, final Sec.  816.57(a) will minimize 
these impacts.

Id. at 30315, col. 1, emphasis added.

    Our removal of the requirement formerly found in 30 CFR 
816.57(a)(1) and 817.57(a)(1) for a finding concerning applicable State 
or Federal water quality standards does not authorize activities that 
would constitute or result in a violation of State or Federal water 
quality standards. Section 702(a) of SMCRA provides that nothing in 
SMCRA may be construed as superseding, amending, modifying, or 
repealing the Clean Water Act, its implementing regulations, State laws 
enacted pursuant to the Clean Water Act, or other Federal laws relating 
to preservation of water quality. In addition, our regulations at 30 
CFR 816.42 and 817.42 require that discharges of water from disturbed 
areas ``be made in compliance with all applicable State and Federal 
water quality laws and regulations.''
    In the preamble to the proposed rule, we sought comment on whether 
we should amend 30 CFR 816.42 and 817.42, which currently address only 
discharges of water, to include a paragraph specifying, for 
informational purposes, that discharges of dredged or fill materials 
into waters of the United States must comply with all applicable State 
and Federal requirements. Commenters were divided on the merits of this 
potential rule change. We have decided against adding this provision, 
both because of the possibility that the language might be erroneously 
interpreted as being enforceable under SMCRA rather than as just an 
informational provision and because adding the language is unlikely to 
be helpful to the regulated community, which is well aware of the need 
to comply with both SMCRA and the various elements of Clean Water Act 
regulatory programs.
7. Final Paragraph (f)
    Paragraph (f) of sections 780.28 and 784.28 summarizes the 
relationship between SMCRA permitting actions and Clean Water Act 
requirements. Paragraph (f)(1) provides that every permit application 
must identify the authorizations that the applicant anticipates will be 
needed under sections 401, 402, and 404 of the Clean Water Act, 33 
U.S.C. 1341, 1342, and 1344, and describe the steps that the permit 
applicant has taken or will take to procure those authorizations. This 
provision implements, in part, section 508(a)(9) of SMCRA, which 
requires that each permit application include ``the steps to be taken 
to comply with applicable air and water quality laws and regulations.''
    Paragraph (f)(2) of sections 780.28 and 784.28 specifies that, if 
the permit application meets all applicable requirements of subchapter 
G (the permitting regulations), the regulatory authority will process 
the permit application and may issue the permit before the applicant 
obtains all necessary authorizations under the Clean Water Act, 33 
U.S.C. 1251 et seq. This arrangement may facilitate review by the Corps 
of any preconstruction notification submitted by the permit applicant 
under Nationwide Permits 21, 49, and 50. The nationwide permits

[[Page 75842]]

apply only if the SMCRA permit has already been issued or if the 
application is being processed as part of an integrated permit 
processing procedure. See 72 FR 11092, 11184, and 11191, March 12, 
2007.
    As proposed, paragraph (f)(2) would have provided that the 
permittee may not initiate any activities for which Clean Water Act 
authorization or certification is required until that authorization or 
certification is obtained. The preamble to the proposed rule stated 
that we considered that provision informational. We requested comment 
on whether the provision should remain informational or whether we 
should revise our rules to require its inclusion as a SMCRA permit 
condition, which would mean that the prohibition on initiation of 
activities before obtaining all necessary Clean Water Act 
authorizations and certifications would be independently enforceable 
under SMCRA. See 72 FR 48901, August 24, 2007.
    Commenters were divided on this issue. The U.S. Fish and Wildlife 
Service and the Geologic and Water Resources Divisions of the National 
Park Service supported adoption of a rule requiring a permit condition 
under SMCRA. The EPA also supported adoption of a requirement for a 
permit condition under SMCRA, stating that such a requirement would 
enhance compliance with Clean Water Act requirements. One state 
regulatory authority opposed adoption of a requirement for a permit 
condition; the commenter instead recommended that coordination of 
permitting and enforcement of Clean Water Act requirements be left to 
the states and the Corps. Comments from the mining industry strongly 
opposed adoption of a rule that would impose a permit condition under 
SMCRA, expressing the fear that it would only result in more 
duplication and confusion in regulation of the coal mining industry. 
One commenter stated that, if the permittee needs to comply with the 
Clean Water Act, then the requirements of that statute should be 
enforced according to the statutory scheme specified in the Clean Water 
Act.
    In response to the comments supporting adoption of a rule requiring 
imposition of a permit condition, we are adding a new paragraph (d)(2) 
to sections 780.28 and 784.28. That paragraph provides that before 
approving a permit application in which the applicant proposes to 
conduct surface activities in a perennial or intermittent stream, the 
regulatory authority must include a permit condition requiring a 
demonstration of compliance with the Clean Water Act in the manner 
specified in paragraph (a)(2) of sections 816.57 and 817.57 before the 
permittee may conduct those activities. This requirement applies to the 
extent that the activities require authorization or certification under 
the Clean Water Act. New paragraph (a)(2) of sections 816.57 and 817.57 
provides that surface activities, including those activities identified 
in paragraphs (b)(1) through (b)(4) of sections 816.57 and 817.57, may 
be authorized in perennial or intermittent streams only where those 
activities would not cause or contribute to the violation of applicable 
State or Federal water quality standards developed pursuant to the 
Clean Water Act, as determined through certification under section 401 
of the Clean Water Act or a permit under section 402 or 404 of the 
Clean Water Act.
    However, in adopting these rules, we reiterate that nothing in 
SMCRA provides the SMCRA regulatory authority with jurisdiction over 
the Clean Water Act or the authority to determine when a permit or 
authorization is required under the Clean Water Act. Under paragraphs 
(a) and (a)(2) of section 702 of SMCRA, nothing in SMCRA (and, by 
extension, regulations adopted under SMCRA) may be construed as 
superseding, amending, modifying, or repealing the Clean Water Act or 
any state laws or state or federal rules adopted under the Clean Water 
Act. In addition, nothing in the Clean Water Act vests SMCRA regulatory 
authorities with the authority to enforce compliance with the 
permitting and certification requirements of that law.
    We have revised proposed paragraph (f)(2) to be consistent with 
these principles. As revised, final paragraph (f)(2) provides that 
issuance of a SMCRA permit does not authorize the permittee to initiate 
any activities for which Clean Water Act authorization or certification 
is required. The final rule further states that ``[i]nformation 
submitted and analyses conducted under subchapter G of this chapter may 
inform the agency responsible for authorizations and certifications 
under sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 
1341, 1342, and 1344, but they are not a substitute for the reviews, 
authorizations, and certifications required under those sections of the 
Clean Water Act.'' Paragraph (f)(2) does not impose any new 
requirements under SMCRA, nor does it authorize the regulatory 
authority to make any determinations required under the Clean Water 
Act.

D. Section 780.35 Disposal of Excess Spoil (Surface Mines)

1. General Discussion of the Rule and the Rationale for the Rule 
Changes
    The environmental impacts of fills and other structures associated 
with the disposal of excess spoil from surface coal mining operations, 
and of coal mine waste, have been the subject of controversy, largely 
because they involve the filling of substantial portions of stream 
valleys, especially in central Appalachia. This controversy has 
highlighted the need to ensure that excess spoil creation is minimized 
to the extent possible, and that excess spoil and coal mine waste 
disposal facilities are located and designed to minimize disturbances 
and adverse impacts on fish, wildlife, and related environmental values 
to the extent possible, using the best technology currently available, 
as required by sections 515(b)(24) and 516(b)(11) of SMCRA.
    Prior to the adoption of this final rule, our regulations 
pertaining to the disposal of excess spoil primarily focused on 
ensuring that fills are safe and stable. This final rule adds several 
requirements intended to promote environmental protection, including 
minimization of the adverse environmental impacts of fill construction 
in perennial and intermittent streams. Several commenters argued that 
we have no authority to adopt these regulations because section 
515(b)(22) of SMCRA, which establishes standards for the disposal of 
excess spoil, does not include any requirements for protection of fish, 
wildlife, and related environmental values, but instead focuses on 
engineering standards intended to promote stability, prevent mass 
movement, and control infiltration of water. We do not agree with the 
commenters. The rule changes that we are adopting today implement, in 
part, the requirement in section 515(b)(24) of SMCRA that surface coal 
mining and reclamation operations be conducted in a manner that 
minimizes disturbances to, and adverse impacts on, fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available. Section 515(b)(24) applies to the 
disposal of excess spoil both by its own terms (disposal of excess 
spoil is a part of surface coal mining and reclamation operations) and 
through section 515(b)(22)(I), which requires that the placement of 
excess spoil meet ``all other provisions of this Act.'' SMCRA contains 
numerous environmental protection requirements that apply to all

[[Page 75843]]

surface coal mining and reclamation operations and all aspects of those 
operations, including the disposal of excess spoil. The fact that 
section 515(b)(22) does not mention environmental protection in no way 
suggests that excess spoil fills need not comply with the environmental 
protection provisions of SMCRA or that we lack the authority to adopt 
regulations establishing environmental protection requirements for 
those structures.
    One commenter stated that we should limit the applicability of the 
new regulations governing excess spoil placement to operations in 
steep-slope areas where the spoil will be placed in stream channels. 
The commenter also stated that the generation and disposal of excess 
spoil as part of non-steep slope operations has never been identified 
as a significant issue and that we have not provided any significant 
justification in the rulemaking record to support a need for applying 
the excess spoil rule to non-steep-slope operations. We disagree. We 
believe that these changes to our rules have merit wherever the 
potential exists for operations to generate excess spoil and that they 
should apply nationwide. Streams in non-steep-slope areas are no less 
significant in terms of fish, wildlife, and related environmental 
values than are streams in steep-slope areas. Excess spoil fills 
outside central Appalachia are rare but they do occur.
    Several commenters requested that the preamble clarify that the 
term ``excess spoil'' does not include initial box cut spoil from the 
first cut in an area mine, even though it will be placed outside the 
mined area. Nothing in this final rule alters the definition of 
``excess spoil'' or how that term is applied or interpreted. As defined 
in section 701.5, the term ``excess spoil'' means--

    Spoil material disposed of in a location other than the mined 
out area; provided that spoil material used to achieve the 
approximate original contour or to blend the mined-out area with the 
surrounding terrain in accordance with Sec. Sec.  816.102(d) and 
817.102(d) of this chapter in non-steep slope areas shall not be 
considered excess spoil.

    The preamble to the definition of ``excess spoil'' states that--

    In the final rule, spoil used to merely blend the mined-out area 
with the surrounding terrain need not be treated as excess spoil. 
Thus, spoil from box cuts or first cuts in non-steep slope areas 
would not be excess spoil when it is used to achieve approximate 
original contour; i.e., to blend the mined-out area into the 
surrounding terrain according to Sec.  816.102(d) of the backfilling 
and grading rules. * * * If, however, the spoil from a box cut or a 
first cut is deposited on slopes with angles defined as steep 
slopes, the box cut or first cut spoil must be handled as excess 
spoil in accordance with Sec. Sec.  816.71 and 817.71.

48 FR 32911 (July 19, 1983).
    Paragraph (a)(1) of section 780.35 of the final rule requires that 
surface coal mining operations be designed to minimize the creation of 
excess spoil to the extent possible. Paragraph (a)(2) of section 780.35 
of the final rule specifies that the maximum cumulative design volume 
of all proposed excess spoil fills within the permit area must be no 
larger than the capacity needed to accommodate the anticipated 
cumulative volume of excess spoil that the operation will generate. 
These requirements should reduce the adverse impacts of the operation 
on fish, wildlife, and related environmental values by minimizing the 
amount of land and water disturbed to construct excess spoil fills.
    Paragraph (a)(3) of section 780.35 of the final rule requires that 
the permit application include an analysis of the impacts on fish, 
wildlife, and related environmental values of a reasonable range of 
alternatives for disposal of excess spoil, including variations in the 
number, size, location, and configuration of proposed fills. Only 
reasonably possible alternatives that differ significantly in their 
impacts on fish, wildlife, and related environmental values need be 
considered. The analysis must consider impacts on both terrestrial and 
aquatic ecosystems. In addition, when construction of the excess spoil 
fill would involve placement of excess spoil in perennial or 
intermittent streams, the rule specifies certain factors that must be 
considered as part of the evaluation of impacts on fish, wildlife, and 
related environmental values to ensure adequate assessment of impacts 
on water quality and aquatic ecosystems, which are among the ``related 
environmental values'' mentioned in sections 515(b)(24) and 516(b)(11) 
of SMCRA. The applicant must select the alternative with the least 
overall adverse impact on fish, wildlife, and related environmental 
values, including adverse impacts on water quality and aquatic and 
terrestrial ecosystems.
    We are adopting these rules to improve the analysis of permit 
applications and permitting decisions under SMCRA. SMCRA itself does 
not require an analysis of alternatives. However, we believe that the 
alternatives analysis requirement is a reasonable means of implementing 
sections 515(b)(24) and 516(b)(11) of SMCRA. Those provisions of the 
Act require that surface coal mining and reclamation operations be 
conducted in a manner that minimizes disturbances and adverse impacts 
on fish, wildlife, and related environmental values to the extent 
possible, using the best technology currently available.
    The addition of these requirements to our rules is consistent with 
section 102(d) of SMCRA, which provides that one of the purposes of 
SMCRA is to assure that surface coal mining operations are conducted so 
as to protect the environment. In addition, the rules are consistent 
with section 102(f) of SMCRA, which provides that another purpose of 
SMCRA is to strike a balance between protection of the environment and 
the nation's need for coal as an essential energy source. The rule 
changes that we are adopting today discourage the disturbance of 
perennial and intermittent streams and their buffers, but they also 
recognize that it is not reasonably possible to do so in all cases for 
all types of surface coal mining operations. For example, if the 
creation of excess spoil as part of a surface coal mining operation is 
unavoidable, the final rule would not prevent construction of the fills 
needed to accommodate the excess spoil. Instead, our new and revised 
rules are intended to ensure that surface coal mining and reclamation 
operations are planned and conducted in a manner that minimizes adverse 
environmental impacts from the construction of fills for the disposal 
of excess spoil to the extent that it is possible to do so without 
restricting coal production in a manner inconsistent with SMCRA in 
general and sections 816.59 and 817.59 of our regulations in 
particular. Section 201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), which 
directs the Secretary of the Interior to publish and promulgate such 
rules and regulations as may be necessary to carry out the purposes and 
provisions of SMCRA, provides additional authority for the adoption of 
these rules.
    One state regulatory authority stated that trying to balance the 
fill minimization requirements of paragraphs (a)(1) and (2) with the 
alternatives analysis and alternative selection requirements of 
paragraph (a)(3) will be extremely difficult. According to the 
commenter, the best location to place excess spoil to minimize the 
footprint of the fill is not likely to be the best location 
environmentally. The commenter suggested that guidance may be needed to 
address this potential conflict.
    We do not agree that the requirements of these paragraphs are in 
conflict. Paragraph (a)(1) requires that the volume of excess spoil 
created by the operation be minimized by returning as

[[Page 75844]]

much of the spoil as possible to the mined-out area, after taking into 
consideration applicable regulations concerning final contours, safety, 
stability, environmental protection, and the postmining land use. 
Paragraph (a)(2) requires that the operation be designed so that the 
maximum cumulative volume of all planned excess spoil fills does not 
exceed the capacity needed to accommodate the anticipate cumulative 
volume of excess spoil that the proposed operation will generate. 
Nothing in these two paragraphs in any way contradicts the provision in 
paragraph (a)(3) requiring selection of the alternative with least 
overall adverse impact on fish, wildlife, and related environmental 
values.
    As proposed, this final rule consolidates most fill design and 
permitting requirements in the permit application regulations in 
sections 780.35 and 784.19, rather than splitting them between those 
regulations and the performance standards in sections 816.71 and 
817.71, as they were before the adoption of this rule. Also, as 
proposed, the final rule revises the rule language to remove 
inconsistencies between the performance standards and the permitting 
requirements, to eliminate redundancies, and to be more consistent with 
plain language principles.
    The final rule adds paragraphs (a)(1) through (a)(4) to section 
780.35 to establish environmentally-oriented requirements for permit 
applications for operations that propose to generate excess spoil. In 
the remainder of this part of the preamble, we discuss those and other 
provisions of the final rule and the comments received on their 
counterparts in the proposed rule.
2. Final Paragraphs (a)(1) and (a)(2)
    Paragraph (a)(1) of section 780.35 provides that each application 
for an operation that would generate excess spoil must include a 
demonstration, prepared to the satisfaction of the regulatory 
authority, that the operation has been designed to minimize the volume 
of excess spoil to the extent possible, thus ensuring that as much 
spoil as possible is returned to the mined-out area. The demonstration 
must take into consideration applicable regulations concerning 
restoration of the approximate original contour, safety, stability, and 
environmental protection and the needs of the proposed postmining land 
use. Some or all of those factors may limit the amount of spoil that 
can be returned to the mined-out area, especially the requirements 
related to safety, stability, and postmining land use. Also, if the 
regulatory authority does not approve the proposed postmining land use, 
the applicant and the regulatory authority will need to revisit the 
demonstration to determine whether it must be revised to reflect the 
needs and attributes of the postmining land use that is finally 
approved.
    Paragraph (a)(2) of section 780.35 requires that the application 
include a demonstration that the designed maximum cumulative volume of 
all proposed excess spoil fills within the permit area is no larger 
than the capacity needed to accommodate the anticipated cumulative 
volume of excess spoil that the operation will generate.
    The goal of both paragraphs (a)(1) and (a)(2) is to minimize fill 
footprints and thus minimize disturbances of forests, perennial and 
intermittent streams, and riparian vegetation, consistent with the 
requirement in sections 515(b)(24) and 516(b)(11) of SMCRA to minimize 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values to the extent possible using the best technology 
currently available.
    Since the mid-1990's, the extent of excess spoil fill construction 
in central Appalachia has been controversial, especially when fills 
bury stream segments. As part of our oversight activities, we conducted 
studies in 1999 in Kentucky, Virginia, and West Virginia to determine 
how state regulatory authorities were administering SMCRA regulatory 
programs regarding restoration of approximate original contour. From 
our review of permit files and reclaimed mines, we determined that, 
typically, some of the spoil placed in excess spoil fills could have 
been retained on or returned to mined-out areas. See ``An Evaluation of 
Approximate Original Contour and Postmining Land Use in Kentucky'' 
(OSM, September 1999); ``An Evaluation of Approximate Original Contour 
Variances and Postmining Land Uses in Virginia'' (OSM, September 1999); 
and ``Final Report: An Evaluation of Approximate Original Contour and 
Postmining Land Use in West Virginia'' (OSM, May 1999).
    In many instances, we found that the permit application 
overestimated the anticipated volume of excess spoil that the operation 
would produce. In addition, fills were designed and constructed larger 
than necessary to accommodate the anticipated excess spoil, which 
resulted in the unnecessary disturbance of additional land. Kentucky, 
Virginia, and West Virginia worked with us to develop enhanced guidance 
on material balance determinations, spoil management, and approximate 
original contour determinations to correct these problems to the extent 
feasible under the existing regulations. We also developed guidance for 
use under the Tennessee Federal regulatory program. In most cases, the 
regulatory authorities in those states have adopted policies based on 
that guidance for use in reviewing permit applications.
    Some industry commenters opposed the new excess spoil minimization 
requirements, citing the preceding discussion as evidence that the 
policies appear to be satisfactorily addressing any past issues and 
that there is no longer any problem that would justify rulemaking. 
Other industry commenters supported these provisions to the extent that 
they codify policies that are working in the central Appalachian 
states.
    We believe that adoption of proposed paragraphs (a)(1) and (a)(2) 
as final rules is appropriate because policies are subject to change. 
The final rules that we are adopting today reinforce the basis for the 
policies in place in Kentucky, Tennessee, Virginia, and West Virginia. 
They also strengthen the enforceability of decisions based on those 
policies and provide national consistency by ensuring that certain 
basic requirements will be applied nationwide, including in those 
states that have not adopted policies. We also believe that the 
environment, the public, and the regulated community are best served by 
the adoption of national regulations to clarify environmental 
considerations concerning the generation and disposal of excess spoil.
3. Final Paragraph (a)(3)
    As proposed, paragraph (a)(3) of section 780.35 would have required 
that each application include a description of all excess spoil 
disposal alternatives considered and an analysis of the environmental 
impacts of those alternatives. In the final rule, we extensively 
revised and reorganized paragraph (a)(3) in response to the many 
comments that we received on this portion of the proposed rule.
Discussion of General Comments Received on Proposed Paragraph (a)(3)
    Industry commenters strongly opposed the requirement in proposed 
paragraph (a)(3) for an analysis of alternatives for excess spoil 
fills. The commenters cited a variety of reasons, including excessive 
costs, delays in permitting, duplication of effort with the Clean Water 
Act, the probable lack of environmental benefits, the potential for 
conflict between the SMCRA

[[Page 75845]]

regulatory authority's application of the alternatives analysis 
requirement and the approach adopted by the Clean Water Act permitting 
authority, a lack of justification under SMCRA, exceeding the intent of 
SMCRA, and a fear that this requirement could result in a never-ending 
cycle of analysis and litigation concerning whether the correct 
alternative was selected by the permit applicant and approved by the 
state regulatory authority. Many commenters stated that the requirement 
for an alternatives analysis has no basis in SMCRA and instead appears 
to be a mixture of provisions borrowed from the National Environmental 
Policy Act and the Clean Water Act.
    Nothing in the proposed alternatives analysis requirement in 
paragraph (a)(3) of sections 780.35 and 784.19 of the final rule is 
based upon the National Environmental Policy Act. We respectfully 
disagree with those commenters who argued that the requirement for an 
alternatives analysis is a Clean Water Act requirement that has no 
basis or justification under SMCRA and that exceeds the intent of 
SMCRA. We acknowledge that we derived this element of our proposed 
rules from the alternatives analysis requirements of the 404(b)(1) 
Guidelines in 40 CFR part 230, which include the substantive 
environmental criteria used in evaluating activities regulated under 
section 404 of the Clean Water Act. However, we concluded that a 
modified version of the alternatives analysis requirements in the 
404(b)(1) Guidelines is an appropriate means of obtaining the 
background data and analyses that both the applicant and the regulatory 
authority need to make informed decisions concerning compliance with 
the requirements of sections 515(b)(24) and 516(b)(11) of SMCRA, which 
provide that surface coal mining and reclamation operations must be 
conducted to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible, 
using the best technology currently available. Therefore, paragraphs 
(a)(3)(ii) and (a)(3)(iii) of sections 780.35 and 784.19 of this final 
rule apply the alternatives analysis requirement to all applications 
that propose to place excess spoil in or within 100 feet of a perennial 
or intermittent stream. In addition, paragraph (a)(3)(iii)(A) of these 
sections of the final rule applies more detailed analytical 
requirements to applications that propose to place excess spoil in 
perennial or intermittent streams as opposed to applications that 
propose to place excess spoil only within 100 feet of those streams.
    One commenter stated that the rule should not require an 
alternatives analysis when the permit applicant proposes to use excess 
spoil to reclaim benches and highwalls on abandoned mine lands. 
Alternatively, the commenter suggested that any reasonably possible 
alternative that consisted solely of placement on abandoned mine 
benches should be deemed the alternative with the least overall adverse 
environmental impact. We interpret these comments as referring to 
excess spoil fills constructed on preexisting benches under 30 CFR 
816.74 and 817.74. We encourage the use of excess spoil to reclaim 
abandoned mine lands, but we do not agree that applications proposing 
to use excess spoil for that purpose should be exempt from compliance 
with the alternatives analysis requirements of paragraph (a)(3). 
Perennial and intermittent streams merit special consideration 
regardless of whether those streams flow through undisturbed land or 
abandoned mine lands. Also, abandoned mine lands vary widely in 
quality, so we do not agree that an alternative proposing to place 
excess spoil only on abandoned mine lands should be deemed the 
alternative with the least overall adverse impact on fish, wildlife, 
and related environmental values. However, the alternatives analysis 
requirement applies only if the applicant proposes to place excess 
spoil in or within 100 feet of a perennial or intermittent stream. When 
constructing fills on preexisting benches, there is a distinct 
possibility that the requirement will not apply at all because there 
may be no perennial or intermittent streams within 100 feet of the 
benches.
    A few commenters criticized the analysis of alternatives provisions 
of the proposed rule because they did not completely parallel the 
requirements of the 404(b)(1) Guidelines in 40 CFR part 230. At least 
one commenter recommended that we incorporate the 404(b)(1) Guidelines 
by reference. We do not find this recommendation appropriate because 
the 404(b)(1) Guidelines are designed to implement the Clean Water Act, 
while our regulations implement SMCRA and must be based upon SMCRA 
requirements. Under section 702(a) of SMCRA, nothing in SMCRA may be 
construed as amending, modifying, repealing, or superseding any Clean 
Water Act requirement. However, there is also nothing in SMCRA that 
would compel or authorize us to adopt regulations that parallel or 
incorporate Clean Water Act requirements.
    SMCRA and the Clean Water Act provide for separate regulatory 
programs with different purposes and very different permitting 
requirements and procedures. In addition, as other commenters noted, 
SMCRA and the Clean Water Act differ considerably with respect to 
jurisdiction. The Clean Water Act focuses on regulating discharges of 
pollutants into waters of the United States, whereas SMCRA regulates a 
broad universe of environmental and other impacts of surface coal 
mining and reclamation operations, including impacts on water quantity, 
water quality, and terrestrial and aquatic ecosystems. We encourage 
coordination and cooperation between the SMCRA regulatory authority and 
the agencies administering the Clean Water Act. See the memorandum of 
understanding entitled ``Memorandum of Understanding among the U.S. 
Army Corps of Engineers, the U.S. Office of Surface Mining, the U.S. 
Environmental Protection Agency, and the U.S. Fish and Wildlife Service 
for the Purpose of Providing Concurrent and Coordinated Review and 
Processing of Surface Coal Mining Applications Proposing Placement of 
Dredged and/or Fill Material in Waters of the United States,'' which 
took effect February 8, 2005, and the provisions of this final rule 
that authorize the SMCRA regulatory authority to accept an analysis of 
alternatives completed for Clean Water Act purposes as meeting the 
requirements for an analysis of alternatives under this final rule, 
when and to the extent appropriate. However, we believe that 
maintaining the distinction between the SMCRA regulatory program and 
Clean Water Act programs is both administratively and legally 
appropriate. That conclusion is supported by the comments that we 
received from both industry and state regulatory authorities.
    Many industry commenters, supported by some, but not all, state 
regulatory authority commenters, stated that the proposed alternatives 
analysis requirement would introduce a major new element of 
uncertainty, and result in costly and wasteful duplication of effort on 
the part of permit applicants and state regulatory authorities. The 
commenters stated that this element of our proposed rule was 
inconsistent with our statement in the preamble to that rule that a 
primary reason for the rulemaking was to provide improved clarity and 
reduction of uncertainty regarding the meaning of the regulations. One 
commenter stated that at best the alternatives analysis requirement 
``adds yet another layer of

[[Page 75846]]

redundant paperwork and analysis as it duplicates the federally-
administered 404 process. At worst, OSM has set the stage for conflicts 
between the section 404 program and the largely state-implemented SMCRA 
programs.'' The commenter further stated that by imposing an 
alternatives analysis requirement on state regulatory authorities, we 
are ``flirting dangerously'' with creating conflicting alternatives 
analyses because ``the goals and objectives of SMCRA and corresponding 
state statutes may be different than those of the Corps and EPA under 
section 404.''
    While we understand the commenters' apprehensions, these comments 
are speculative in nature. There may be some initial uncertainty as 
regulatory authorities establish procedures and criteria for 
implementing the alternative analysis requirements and determining 
least overall adverse impact on fish, wildlife, and related 
environmental values under this rule, but that uncertainty should 
subside once those procedures and criteria are in place.
    The Interstate Mining Compact Commission, writing on behalf of 
member state regulatory authorities, argued that the alternatives 
analysis requirement is duplicative of requirements under the Clean 
Water Act that are already encompassed by the SMCRA permitting scheme. 
As discussed elsewhere in this preamble, we believe that the 
alternatives analysis requirement that we are adopting as part of this 
final rule differs from and serves a somewhat different purpose than 
the alternatives analysis requirement under the regulations and other 
documents implementing section 404 of the Clean Water Act. To the 
extent that duplication may exist, we encourage states to coordinate 
the processing of coal mining permit applications with the U.S. Army 
Corps of Engineers in accordance with a memorandum of understanding 
entitled ``Memorandum of Understanding among the U.S. Army Corps of 
Engineers, the U.S. Office of Surface Mining, the U.S. Environmental 
Protection Agency, and the U.S. Fish and Wildlife Service for the 
Purpose of Providing Concurrent and Coordinated Review and Processing 
of Surface Coal Mining Applications Proposing Placement of Dredged and/
or Fill Material in Waters of the United States,'' which took effect 
February 8, 2005. In addition, this final rule authorizes the SMCRA 
regulatory authority to accept an analysis of alternatives completed 
for Clean Water Act purposes as meeting the requirements for an 
analysis of alternatives under this final rule, when and to the extent 
appropriate.
    The Commission and some, but not all, commenters representing 
individual state regulatory authorities also opposed the alternatives 
analysis requirement in the proposed rule because of state fiscal 
constraints and fear of the ``potentially overwhelming'' time and 
effort that would be required for state permitting personnel to 
adequately review and analyze alternatives.
    We anticipate that few, if any, state regulatory authorities will 
experience a significant increase in demands on their resources as a 
result of the alternatives analysis requirement in the final rule. West 
Virginia, one of the states most impacted by the rule, supported the 
proposed rule. Kentucky, another state that would be significantly 
impacted, estimated that, on average, the new requirement would add ten 
hours to the time required to process a permit application. We believe 
that the intangible environmental benefits of the rule (increased 
scrutiny of efforts to minimize adverse impacts on fish, wildlife, and 
related environmental values associated with perennial and intermittent 
streams) will outweigh what we anticipate will be a modest increase in 
demand on state regulatory authority resources.
    The U.S. Fish and Wildlife Service requested that we work with the 
Service to build a process into the alternative analysis requirements 
in the final rule to protect unique and high value fish and wildlife 
resources. In response, we note that our fish and wildlife protection 
rules at 30 CFR 816.97(f) and 817.97(f) already require that the 
operator ``avoid disturbances to, enhance where practicable, or restore 
habitats of unusually high value for fish and wildlife.'' In addition, 
our permitting rules at 30 CFR 780.16 and 784.21 provide a role for the 
Service in determining fish and wildlife data collection requirements 
and reviewing the fish and wildlife protection plan in the permit 
application. Therefore, addition of the provision requested by the 
Service is not necessary.
Discussion of Specific Provisions of Final Paragraph (a)(3)
    In the final rule, the first sentence of paragraph (a)(3) provides 
that the permit applicant must design the operation to avoid placement 
of excess spoil in or within 100 feet of perennial and intermittent 
streams to the extent possible. We added this provision in response to 
EPA concerns and numerous comments urging greater protection for 
headwater streams because of their ecological importance and 
contribution to the function of the stream as a whole. In effect, the 
new sentence identifies avoiding placement of excess spoil in or within 
100 feet of perennial or intermittent streams as the preferred method 
of complying with the SMCRA requirement to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values 
with respect to those streams. That is, whenever avoidance of 
disturbance is reasonably possible, the final rule establishes 
avoidance as the best technology currently available to comply with the 
provisions of sections 515(b)(24) and 516(b)(11) of SMCRA, which 
require minimization of disturbances and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible using 
the best technology currently available. This provision of the final 
rule is consistent with our stream buffer zone rules at 30 CFR 816.57 
and 817.57, which establish maintenance of an undisturbed buffer for 
perennial and intermittent streams as the best technology currently 
available to meet the requirements of sections 515(b)(24) and 
516(b)(11) of SMCRA, provided maintenance of an undisturbed buffer is 
reasonably possible.
    However, the final rule does not and cannot mandate avoidance in 
all cases for all stream segments. The provisions of SMCRA underlying 
this rule require minimization of disturbances and adverse impacts on 
fish, wildlife, and related environmental values only ``to the extent 
possible.'' Avoiding disturbance of the stream and maintenance of an 
undisturbed buffer zone for that stream is the ultimate means of 
minimizing adverse impacts on fish, wildlife, and related environmental 
values and hence is the default best technology currently available to 
comply with the statutory minimization requirement. However, there is 
sometimes no alternative to the construction of excess spoil fills in 
perennial or intermittent streams and their buffer zones if the 
proposed surface coal mining operation is to be viable. Prohibiting the 
construction of excess spoil fills would in effect preclude coal 
recovery in those situations. Under those circumstances, SMCRA--and 
hence this final rule--do not require avoidance of disturbance because 
avoidance is not reasonably possible. Instead, the applicant must 
propose other methods of complying with the minimization requirement 
that are consistent with the proposed surface coal mining operations. 
We do not interpret SMCRA as authorizing us to prohibit surface coal 
mining operations

[[Page 75847]]

in situations other than those specifically set forth in the Act. 
However, SMCRA does not override prohibitions that apply under other 
laws and regulations, so we will also recognize those prohibitions in 
reaching a decision on a permit application.
    As proposed, paragraph (a)(3) would have required an alternatives 
analysis for all operations that propose to generate excess spoil. In 
response to comments citing the probable lack of environmental benefits 
of the proposed alternatives analysis requirement and the burden that 
it would impose, we have reconsidered this requirement and paragraph 
(a)(3) of the final rule restricts the alternatives analysis 
requirement to those situations in which the applicant proposes to 
place excess spoil in or within 100 feet of a perennial or intermittent 
stream. We believe that this restriction is appropriate because those 
lands are likely to be the most significant in terms of fish, wildlife, 
and related environmental values. In addition, this limitation may 
facilitate coordination with permitting requirements under section 404 
of the Clean Water Act, which apply whenever a permit applicant 
proposes to place fill material in waters of the United States.
    Paragraph (a)(3)(i) of the final rule requires that the permit 
applicant explain, to the satisfaction of the regulatory authority, why 
an alternative that does not involve placement of excess spoil in or 
within 100 feet of a perennial or intermittent stream is not reasonably 
possible. We added this requirement to reinforce the provision in 
paragraph (a)(3) of the final rule establishing avoidance of placement 
of excess spoil in or within 100 feet of a perennial or intermittent 
stream, whenever avoidance is reasonably possible, as the best 
technology currently available to comply with the statutory requirement 
for minimization of disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible using the best 
technology currently available.
    Paragraph (a)(3)(ii) of the final rule provides that, if the permit 
applicant is unable to design the operation to avoid placement of 
excess spoil in or within 100 feet of a perennial or intermittent 
stream, the application must identify a reasonable range of 
alternatives that vary with respect to the number, size, location, and 
configuration of proposed excess spoil fills. A number of commenters on 
the proposed rule expressed concern that the requirement to identify a 
reasonable range of alternatives was too vague and could be interpreted 
as requiring an unlimited number of alternatives, including those that 
have no possibility of being implemented. In response to this concern, 
we have added language clarifying that paragraph (a)(3)(ii) does not 
require identification of all potential alternatives and that only 
those reasonably possible alternatives that are likely to differ 
significantly in terms of impacts on fish, wildlife, and related 
environmental values (either in degree or in watersheds affected) need 
be identified and considered. The latter provision is consistent with 
the policies to which EPA and the Corps adhere in implementing section 
404 of the Clean Water Act. See the EPA/COE memorandum entitled 
``Appropriate Level of Analysis Required for Evaluating Compliance with 
the Section 404(b)(1) Guidelines Alternatives Requirements.''
    In response to commenters' concerns, we also added language to 
paragraph (a)(3)(ii) of the final rule specifying that an alternative 
is reasonably possible if it conforms to the safety, engineering, 
design, and construction requirements of the regulatory program; is 
capable of being done after consideration of cost, logistics, and 
available technology; and is consistent with the coal recovery 
provisions of sections 816.59 and 817.59. In other words, nothing in 
the rule should be construed as elevating environmental concerns over 
safety considerations, as prohibiting the conduct of surface coal 
mining operations that are not otherwise prohibited under SMCRA or 
other laws or regulations, or as requiring consideration of 
unreasonably expensive or technologically infeasible alternatives.
    The portion of this rule that refers to ``consideration of cost, 
logistics, and available technology'' is derived from the EPA 
regulations at 40 CFR 230.10(a)(2), which define a practicable 
alternative for purposes of section 404 of the Clean Water Act. In 
interpreting this provision, the EPA/COE memorandum entitled 
``Appropriate Level of Analysis Required for Evaluating Compliance with 
the Section 404(b)(1) Guidelines Alternatives Requirements'' states 
that ``[t]he determination of what constitutes an unreasonable expense 
should generally consider whether the projected cost is substantially 
greater than the costs normally associated with this particular type of 
project.'' We have included similar language in paragraph (a)(3)(ii)(B) 
of the final rule because (1) the concept of a practicable alternative 
for purposes of section 404 of the Clean Water Act is in some ways 
analogous to the determination of reasonably possible alternatives 
under this rule, and (2) the principle is consistent with the phrase 
``to the extent possible'' in sections 515(b)(24) and 516(b)(11) of 
SMCRA. See Part VI.D. of this preamble for a more extensive discussion 
of the rationale for our use of the term ``reasonably possible'' and 
its consistency with statutory provisions.
    The final rule does not include the provision in paragraph 
(a)(3)(iii) of the proposed rule stating that the least costly 
alternative may not be selected at the expense of environmental 
protection solely on the basis of cost. One commenter objected to the 
proposed provision as being too extreme and subject to 
misinterpretation, noting that there may be situations in which cost 
could and should be the determining factor. We agree. Nothing in SMCRA 
would compel adoption of this provision. In lieu of this provision, we 
have added language to paragraph (a)(3)(ii)(B) of the final rule 
clarifying that the fact that one alternative may cost somewhat more 
than a different alternative does not necessarily warrant exclusion of 
the more costly alternative from consideration. We believe that the 
revised language is more consistent with sections 515(b)(24) and 
516(b)(11) of SMCRA, which require use of the best technology currently 
available, but only to the extent possible.
    Paragraph (a)(3)(iii) of the final rule provides that any 
application proposing to place excess spoil in or within 100 feet of a 
perennial or intermittent stream must include an analysis of the 
impacts of the alternatives identified in paragraph (a)(3)(ii) on fish, 
wildlife, and related environmental values. The analysis must consider 
impacts on both terrestrial and aquatic ecosystems. For example, 
depending on the topography and geology of the area, the analysis could 
compare the impacts of constructing a few large excess spoil fills 
versus a greater number of small fills, as well as the relative impacts 
of concentrating fills in one or a few watersheds as opposed to placing 
them in multiple watersheds. In addition, the quality of the receiving 
waters must be taken into consideration in that it may be 
environmentally preferable to concentrate fills and their impacts in 
watersheds with the lowest water quality, to the extent that it is 
possible to do so.
    Paragraph (a)(3)(iii)(A) of the final rule provides that, for every 
alternative that proposes placement of excess spoil in a perennial or 
intermittent stream, the analysis must include an evaluation of impacts 
on the physical, chemical, and biological characteristics of the stream 
downstream of the proposed fill, including seasonal variations in

[[Page 75848]]

temperature and volume, changes in stream turbidity or sedimentation, 
the degree to which the excess spoil may introduce or increase 
contaminants, and the effects on aquatic organisms and the wildlife 
that is dependent upon the stream. As discussed below, this paragraph 
of the final rule includes a number of changes from the proposed rule 
as a result of the comments that we received on the proposed rule.
    One commenter on a virtually identical provision in the proposed 
coal mine waste disposal rules stated that--

    [T]he components of an alternatives analysis for a coal mine 
disposal activity, as set forth in proposed 30 CFR 784.16(d)(1)(ii), 
should be subdivided for clarity and certain of the components 
should be reconsidered in terms of their purpose or value. As 
written, 30 CFR 784.16(d)(1)(ii) requires ``* * * an evaluation of 
short-term and long-term impacts on the aquatic ecosystem, both 
individually and on a cumulative basis'' and goes on to specify that 
the evaluation ``must consider impacts on the physical, chemical, 
and biological characteristics of downstream flow, including 
seasonal variations in temperature and volume, changes in stream 
turbidity or sedimentation, the degree to which the coal mine waste 
may introduce or increase contaminants, the effects on aquatic 
organisms and the extent to which wildlife is dependent upon those 
organisms.'' As strung together, these requirements create a number 
of ambiguities, which will lead to problems in interpretation. The 
list also includes terms that have no recognized meaning, such as 
``biological characteristics of downstream flows.'' In addition to 
these ambiguities, this section also requires assessments that are 
new to the regulation of mining activities, including assessments of 
the effects of turbidity and of secondary impacts on wildlife that 
may be dependent on aquatic organisms in a potentially affected 
water body. In the absence of commonly recognized guidelines, the 
results of these assessments will be virtually impossible to 
validate.

    We have revised the rule to replace the potentially confusing 
phrase ``biological characteristics of downstream flows'' with clearer 
language requiring information on the biological characteristics of the 
stream downstream of the proposed excess spoil fill. See paragraph 
(a)(3)(iii)(A) of final sections 780.35 and 784.19. We also replaced 
the requirement for an evaluation of the extent to which wildlife is 
dependent upon aquatic organisms with a requirement for an evaluation 
of the effects of the proposed operation on wildlife that is dependent 
upon the stream.
    In addition, we decided not to adopt the portion of proposed 
paragraph (a)(3)(ii) requiring that the analysis include an evaluation 
of the short-term and long-term impacts of each alternative on the 
aquatic ecosystem, both individually and on a cumulative basis. This 
proposed requirement is subsumed within the other analytical 
requirements of the final rule and would not likely result in the 
submission of any meaningful additional information.
    However, we did not make further changes in response to this 
comment because the commenter did not explain how the requirements 
should be subdivided for clarity or why or how they create ambiguity. 
With respect to the commenter's statement that the assessments required 
by this rule will be impossible to validate in the absence of commonly 
recognized guidelines, we believe that the commenter may have 
misunderstood the purpose of the evaluation required by this rule. The 
data and analyses required by this rule are intended only to facilitate 
comparisons of the relative impacts of various alternatives on fish, 
wildlife, and related environmental values, not to establish 
reclamation standards. To the extent that the commenter may have meant 
that there are no generally accepted protocols for evaluating some of 
the listed characteristics, we believe that regulatory authorities have 
the technical capability to develop any needed protocols specific to 
conditions within their states.
    One state regulatory authority urged us to revise the rule to 
include consideration of impacts such as traffic, dust and noise on 
local residents who may be affected by a proposed operation. While we 
encourage permit applicants to consider these factors in designing 
their operations, we do not consider them to be disturbances or adverse 
impacts on fish, wildlife, and related environmental values within the 
context of sections 515(b)(24) and 516(b)(11) of SMCRA. Therefore, we 
are not including those factors as required components of the 
alternatives analysis under paragraph (a)(3)(iii) of the final rule.
    Paragraph (a)(3)(iii)(B) of the final rule allows the applicant to 
submit an analysis of alternatives prepared under 40 CFR 230.10 for 
Clean Water Act purposes in lieu of the analysis of impacts on fish, 
wildlife, and related environmental values required under paragraph 
(a)(3)(iii)(A) of the final rule. The regulatory authority will 
determine the extent to which that analysis satisfies the requirements 
of paragraph (a)(3)(iii)(A) of the final rule. These provisions of the 
final rule are similar to their counterparts in the proposed rule.
    One commenter expressed dismay that the rule did not require that 
the regulatory authority accept the Clean Water Act analysis of 
alternatives as fully meeting the requirements of this rule. We do not 
believe that addition of this requirement to our rules would be 
appropriate because the alternatives analysis required under the final 
rule must address all environmental impacts (both aquatic and 
terrestrial) of surface coal mining and reclamation operations, whereas 
the analysis of alternatives required under Clean Water Act regulations 
focuses on impacts to waters of the United States. However, under the 
final rule, the SMCRA regulatory authority has the discretion to 
determine that an analysis of alternatives conducted for Clean Water 
Act purposes satisfies the requirements for an analysis of alternatives 
under this final rule, in whole or in part, as appropriate.
    Paragraph (a)(3)(iv) of the final rule requires selection of the 
alternative with the least overall adverse impact on fish, wildlife, 
and related environmental values, including adverse impacts on water 
quality and aquatic and terrestrial ecosystems, to the extent possible. 
The proposed rule included an additional sentence specifying that if 
the applicant proposes to select a different alternative, the applicant 
must demonstrate, to the satisfaction of the regulatory authority, why 
implementation of the more environmentally protective alternative is 
not possible. The final rule does not include this sentence because we 
have determined that it is neither needed nor appropriate in view of 
the other changes that we have made to the rule. Specifically, we have 
added language to paragraph (a)(3)(ii) of the final rule limiting the 
alternatives that the applicant must identify to only those 
alternatives that are reasonably possible. In addition, we have added 
paragraph (a)(3)(i), which requires that the permit applicant explain, 
to the satisfaction of the regulatory authority, why an alternative 
that does not involve placement of excess spoil in or within 100 feet 
of a perennial or intermittent stream is not reasonably possible. The 
combination of these two changes means that the sentence in the 
proposed rule is no longer logical or appropriate because the only 
alternatives considered under the final rule are those that are 
reasonably possible, which means that, within the universe of 
reasonably possible alternatives identified, the applicant must select 
the alternative with the least overall adverse impact on fish, 
wildlife, and related environmental values. In other words, the 
sentence in the proposed rule no longer has any relevance or meaning 
because, under the final rule, the applicant does not

[[Page 75849]]

have the option of proposing alternatives that are not reasonably 
possible. Given that change, the final rule provides that the applicant 
must select the alternative with the least overall adverse impact on 
fish, wildlife, and related environmental values.
    Some commenters requested that we define or explain the term 
``least overall adverse environmental impact.'' We do not believe that 
a meaningful definition is possible, given the somewhat subjective 
nature of the term and the site-specific nature of determinations under 
this rule. We expect that persons preparing permit applications and 
regulatory authority personnel reviewing those applications will use 
their best professional judgment in applying the requirements of this 
paragraph of the rule. Consistent with the commonly accepted meaning of 
the words ``overall'' and ``environmental,'' we have modified the rule 
to clarify that the scope of the term includes impacts to terrestrial 
ecosystems, not just impacts to water quality and aquatic ecosystems. 
The relative importance of these three components, as well as the 
constituents of each of those components, will vary from site to site. 
Therefore, they are not readily defined in a national rule. However, we 
have replaced the term ``least overall adverse environmental impact'' 
in the proposed rule with the term ``least overall impact on fish, 
wildlife, and related environmental values'' to be consistent with the 
terminology that appears in the underlying statutory provisions at 
sections 515(b)(24) and 516(b)(11) of SMCRA and to provide greater 
clarity.
    EPA encouraged both permit applicants and SMCRA regulatory 
authorities to use a watershed approach in determining which 
alternative would have the least overall adverse impact on fish, 
wildlife, and related environmental values:

    A watershed approach expands the informational and analytic 
basis of site selection decisions to ensure impacts are considered 
on a watershed scale rather than only project by project. The idea 
being locational factors (e.g., hydrology, surrounding land use) are 
important to evaluating the indirect and cumulative impacts of the 
project. Watershed planning efforts can identify and prioritize 
where preservation of existing aquatic resources are important for 
maintaining or improving the quality (and functioning) of downstream 
resources. The objective of this evaluation is to maintain and 
improve the quantity and quality of the watershed's aquatic 
resources and to ensure water quality standards (numeric and 
narrative criteria, anti-degradation, and designated uses) are met 
in downstream waters.
    Permit applicants should work with federal and state regulatory 
authorities to identify appropriate and available information, such 
as existing watershed plans, or in the absence of such plans, 
existing information on current watershed conditions and needs, past 
and current mining (and other development) trends, cumulative 
impacts of past, present, and reasonable foreseeable future mining 
activities, and chronic environmental problems (e.g., poor water 
quality, CWA 303(d)--listed streams, etc.) in the watershed. The 
regulatory authorities can also provide information on the 
appropriate watershed scale to consider. The level of data and 
analysis for implementing a watershed approach should be 
commensurate with the scale of the project, to the extent 
appropriate and reasonable.

    We agree that the analysis of potential alternatives required under 
paragraph (d)(1)(ii) should appropriately consider the overall 
condition of the aquatic resources in the watershed, including any 
impacts from previous mining activities.
4. Proposed Paragraph (a)(4)
    Proposed paragraph (a)(4) of section 780.35 provided that each 
application for an operation that will generate and dispose of excess 
spoil must describe the steps to be taken to avoid the adverse 
environmental impacts that may result from the construction of excess 
spoil fills or, if avoidance is not possible, to minimize those 
impacts. The preamble to the proposed rule explained that this 
requirement applied to construction, maintenance, and reclamation of 
the alternative selected under proposed paragraph (a)(3)(iii).
    EPA recommended that we revise the rule to incorporate the concepts 
of avoidance and minimization of adverse environmental impacts into the 
alternatives analysis required by proposed paragraphs (a)(3)(i) and 
(ii) rather than placing them in a separate paragraph. EPA stated that 
the intended purpose of the alternatives analysis is to determine the 
means by which excess spoil could be disposed of with the least adverse 
environmental impact. EPA further recommended removal of the preamble 
language in the proposed rule that specified that the avoidance and 
minimization requirements in proposed paragraph (a)(4) only applied to 
the alternative selected under proposed paragraph (a)(3)(iii). 
According to EPA, these changes would reduce potential uncertainty 
regarding the appropriate factors to consider in the alternatives 
analysis and would reinforce the requirement to evaluate different 
project locations and design elements when assessing the viability and 
environmental impacts of each location.
    After considering these comments and the changes that we made to 
paragraph (a)(3) in the final rule, we have decided not to adopt 
proposed paragraph (a)(4) because provisions of that paragraph are now 
redundant and unnecessary. Under 30 CFR 816.97(a) and 817.97(a), the 
operator must, to the extent possible, using the best technology 
currently available, minimize disturbances and adverse impacts on fish 
and wildlife and related environmental values and must achieve 
enhancement of those resources where practicable. Paragraph (f) of 30 
CFR 816.97 and 817.97 provides that the operator must avoid 
disturbances to, enhance where practicable, restore, or replace 
wetlands and riparian vegetation along rivers and streams and bordering 
ponds and lakes. That paragraph also requires that the operator avoid 
disturbances to, enhance where practicable, or restore habitats of 
unusually high value for fish and wildlife. Paragraph (b)(1) of 30 CFR 
780.16 and 784.21 requires that the fish and wildlife protection and 
enhancement plan in the permit application be consistent with the 
requirements of 30 CFR 816.97 and 817.97, respectively. Therefore, 
proposed paragraph (a)(4) would not add any requirements that are not 
already found in 30 CFR 816.97 and 817.97.
    In addition, as revised in the final rule, paragraph (a)(3) of 
section 780.35 provides that permit applicants should design their 
operations to avoid placement of excess spoil in or within 100 feet of 
a perennial or intermittent stream to the extent possible. This new 
provision establishes avoidance of disturbance of perennial and 
intermittent streams and their buffer zones as the best technology 
currently available to comply with the requirement under sections 
515(b)(24) and 516(b)(11) of SMCRA to minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values. However, 
the statutory minimization requirement applies only ``to the extent 
possible,'' and, given the realities of geology (which dictates where 
coal is located), topography, and mining mechanics and economics, it is 
not always possible to implement the ultimate form of minimization, 
which is avoidance of disturbances, and still conduct surface coal 
mining operations. Consequently, paragraph (a)(3) of the final rule 
requires that the applicant avoid disturbance only to the extent 
possible. Paragraph (a)(3)(i) of the revised final rule provides that, 
when a permit applicant proposes to place excess spoil in or within 100 
feet of a perennial or intermittent stream, the applicant must explain, 
to the satisfaction of the regulatory authority,

[[Page 75850]]

why an alternative that does not involve placement of excess spoil in 
or within 100 feet of a perennial or intermittent stream is not 
reasonably possible. Therefore, adoption of proposed paragraph (a)(4) 
is no longer appropriate because, as revised, paragraph (a)(3) of the 
final rule requires consideration of avoidance as part of the 
alternatives analysis and selection process.
    In the preamble to the proposed rule, we stated that we anticipated 
that the steps mentioned in proposed paragraph (a)(4) would include 
provisions in the operation plan to require that, when consistent with 
prudent engineering practice and applicable regulatory requirements, 
excess spoil placement begin at the highest elevation of the planned 
fill and proceed down the valley to the toe of the fill, thus 
minimizing both impacts to waters of the United States and the area 
affected in the event that the full design capacity of the fill is not 
needed because of changes in mining plans or other reasons. We 
requested comment on whether this approach should be incorporated into 
the rule language.
    We received very few comments and those that we did receive were 
split on this question. In this final rule, we have decided against 
endorsing or adopting a ``top-down'' construction requirement because 
the technique raises serious stability issues. In addition, it would be 
inconsistent with provisions in the West Virginia Code of State 
Regulations (CSR) adopted to address fill stability problems that the 
state encountered. West Virginia requires that all durable rock fills 
either be constructed from the toe up as provided by CSR 38-2-14.14.g.3 
or that an erosion protection zone be established below the toe of the 
single-lift fill in accordance with CSR 38-2-14.14.g.2. That zone is a 
flat area of durable rock equal in length to half the height of the 
fill. The height of the erosion protection zone must be sufficient to 
accommodate designed flow from the underdrain of the fill. Because 
section 515(b)(22) of the Act focuses on stability considerations in 
the disposal of excess spoil, we do not believe that it would be 
appropriate to adopt a regulation that could be in conflict with 
existing state program requirements intended to ensure fill stability 
and protect downstream residents and structures. Furthermore, top-down 
construction is feasible only for durable rock fills under 30 CFR 
816.73 and 817.73 and not all excess spoil qualifies for placement 
under those sections of our rules. Other regulations that we are 
adopting today as part of sections 780.35(a)(1) and (a)(2) and 
784.19(a)(1) and (a)(2) require that operations be designed both to 
minimize the creation of excess spoil and in a manner that ensures that 
the cumulative volume of all proposed excess spoil fills does not 
exceed the capacity needed to accommodate the anticipated amount of 
excess spoil that the operation will produce. We believe that those 
provisions should be adequate to minimize the areas affected by excess 
spoil disposal.
5. Final Paragraph (a)(4)
    Final paragraph (a)(4), which appeared as paragraph (a)(5) in the 
proposed rule, requires that each application for an operation that 
proposes to generate excess spoil include maps and cross-section 
drawings showing the location of all proposed disposal sites and 
structures. It also requires that fills be located on the most 
moderately sloping and naturally stable areas available, unless the 
regulatory authority approves a different location based upon the 
alternatives analysis under paragraph (a)(3) or on other requirements 
of the Act and regulations. Whenever possible, fills must be placed 
upon or above a natural terrace, bench, or berm if that location would 
provide additional stability and prevent mass movement. The final rule 
differs slightly from the proposed rule in that we have revised the 
wording to clarify that if the regulatory authority approves a 
different location, that decision must be based upon the alternatives 
analysis under paragraph (a)(3) or on other requirements of the Act and 
regulations The wording of the proposed rule was subject to 
misinterpretation because it allowed approval of a different location 
based upon the alternatives analysis ``or other factors, taking into 
account other requirements of the Act and regulations.''
    The requirement for maps and cross-section drawings formerly 
appeared as part of the first sentence of paragraph (a) of section 
780.35, while the fill location requirements formerly appeared in 30 
CFR 816.71(c). Those location requirements are more logically included 
as part of the planning and design requirements in the permitting 
regulations rather than as part of the performance standards. As 
formerly codified in 30 CFR 816.71(c), the rule required that fills be 
located on the most moderately sloping and naturally stable areas 
available. However, as proposed, the final rule allows the regulatory 
authority to approve different locations, based upon the analysis of 
alternatives required under proposed paragraph (a)(3) of section 780.35 
or on other requirements of the Act and regulations. This change is 
needed to ensure that the analysis of alternatives and consideration of 
impacts on fish, wildlife, and related environmental values are a 
meaningful part of the site selection process. The change is consistent 
with section 515(b)(22)(E) of SMCRA, which requires that excess spoil 
be placed ``upon the most moderate slope among those upon which, in the 
judgment of the regulatory authority, the spoil could be placed in 
compliance with all the requirements of the Act.'' One of the 
requirements of the Act is the provision in section 515(b)(24) 
specifying that surface coal mining and reclamation operations must be 
conducted so as to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible, 
using the best technology currently available. Implementation of that 
requirement may entail placement of spoil on slopes other than the most 
moderate ones available.
6. Final Paragraph (a)(5)
    Final paragraph (a)(5), which appeared as paragraph (a)(6) in the 
proposed rule, requires that an application for an operation that would 
generate excess spoil include detailed design plans for each excess 
spoil disposal structure, prepared in accordance with the requirements 
of sections 780.35 and 816.71 through 816.74. These requirements 
correspond to a portion of the first sentence of the former version of 
section 780.35(a). As proposed, we have added language requiring 
compliance with the requirements of section 780.35 in recognition of 
the other revisions to that section. Paragraph (a)(5) also includes a 
requirement to design the fill and appurtenant structures using current 
prudent engineering practices and any additional design criteria 
established by the regulatory authority. This requirement is not new. 
It formerly appeared in the first sentence of 30 CFR 816.71(b)(1). As 
proposed, we are moving it to 30 CFR 780.35(a)(5) because it is a 
design requirement, not a performance standard.
7. Final Paragraph (a)(6)
    Final paragraph (a)(6), which appeared as paragraph (a)(7) in the 
proposed rule, requires that the application include the results of a 
geotechnical investigation of each proposed excess spoil disposal site, 
with the exception of those sites at which spoil will be placed only on 
a preexisting bench under 30 CFR 816.74. This requirement formerly 
appeared in section 780.35(b). As proposed, final paragraph (a)(6) also 
includes the

[[Page 75851]]

requirement to conduct sufficient foundation investigations that 
formerly appeared in 30 CFR 816.71(d)(1). This shift is consistent with 
our effort to consolidate design requirements in the permitting rules 
rather than splitting them between the permitting rules and the 
performance standards. The foundation investigation is an element of 
the geotechnical investigation that is required for approval of a 
proposed excess spoil fill in a permit application.
8. Final Paragraph (a)(7)
    Final paragraph (a)(7), which appeared as paragraph (a)(8) in the 
proposed rule, requires that each application include plans for the 
construction, operation, maintenance, and reclamation of all excess 
spoil disposal structures (fills) in accordance with the requirements 
of 30 CFR 816.71 through 816.74. This requirement corresponds to a 
similar provision formerly located in section 780.35(a). However, that 
provision included a requirement for plans for the ``removal, if 
appropriate, of the site and structures.'' Because excess spoil fills 
are permanent, it is not appropriate to include plans for their removal 
in the application. Consequently, as proposed, we have replaced the 
requirement for plans for removal of the fills with a requirement for 
plans for their reclamation, which would consist of final site 
preparation and revegetation consistent with the approved postmining 
land use.
9. Final Paragraph (a)(8)
    Final paragraph (a)(8), which appeared as paragraph (a)(9) in the 
proposed rule, combines overlapping requirements formerly found in 30 
CFR 780.35(c) and 816.71(d)(2) concerning application and design 
requirements for keyway cuts or rock-toe buttresses. We made no 
substantive changes in those requirements.
10. Final Paragraph (b)
    As proposed, final paragraph (b) requires that the application 
include a certification by a qualified registered professional engineer 
experienced in the design of earth and rock fills that the design of 
all fills and appurtenant structures meets the requirements of section 
780.35. This requirement formerly appeared in the second sentence of 30 
CFR 816.71(b)(1). We have moved it to section 780.35 consistent with 
our effort to consolidate design requirements in the permitting rules 
rather than splitting them between the permitting rules and the 
performance standards. We made no substantive changes to this 
provision.

E. Section 784.19: Disposal of Excess Spoil (Underground Mines)

    As proposed, we are revising section 784.19 to be consistent with 
the definition of coal mine waste in 30 CFR 701.5, which we adopted on 
September 26, 1983 (48 FR 44006). Among other things, that definition 
reclassified underground development waste as coal mine waste, which 
means that fills constructed of underground development waste must 
adhere to the requirements for refuse piles instead of the requirements 
applicable to excess spoil fills. At the same time that we adopted the 
definition of coal mine waste in 1983, we revised our performance 
standards at 30 CFR 817.71 through 817.74 to eliminate the language 
that combined underground development waste with excess spoil for 
purposes of performance standards for underground mines. Because the 
definition of coal mine waste includes underground development waste, 
the disposal of underground development waste is subject to the 
performance standards for refuse piles at 30 CFR 817.83 rather than the 
performance standards for the disposal of excess spoil that applied 
under the pre-1983 rules.
    Prior to the adoption of today's final rule, the design 
requirements for fills in section 784.19 applied to both underground 
development waste and excess spoil, which means that the permitting 
requirements were inconsistent with the 1983 changes to the 
corresponding performance standards. We have revised section 784.19 to 
apply only to the disposal of excess spoil, consistent with the 1983 
changes to our definitions and performance standards regarding coal 
mine waste. For the same reason, we removed all references to 
underground development waste and revised the section heading to read 
``Disposal of excess spoil'' instead of ``Underground development 
waste.'' Under the final rule that we are adopting today, the disposal 
of underground development waste is now governed by the permitting 
requirements for refuse piles in 30 CFR 784.16.
    As proposed, final section 784.19 parallels the language of section 
780.35, which contains the permit application requirements for the 
disposal of excess spoil generated by surface mining activities. The 
previous rule incorporated those requirements by reference. Adding 
specific language in place of the cross-reference to section 780.35 
makes this rule consistent with the pattern established in most of our 
other rules for surface and underground mines, in which the provisions 
for surface and underground mines are in separate parts, but are nearly 
identical except for cross-references and the type of operation to 
which they apply. In addition, adding specific language in place of the 
cross-reference to section 780.35 allows the incorporation of cross-
references to the appropriate underground mining performance standards 
in part 817 rather than having to use the cross-references in section 
780.35 to the surface mining performance standards in part 816.
    A few commenters stated that, because of the limited amount of 
excess spoil generated by underground mines, we should use our 
authority under section 516(d) of SMCRA to develop less stringent 
permitting requirements for the disposal of that spoil. We decline to 
accept that recommendation. We find nothing unique about the type of 
excess spoil fills constructed as part of underground mining 
operations. The number of fills constructed as part of underground 
mining operations may be fewer than the number constructed as part of 
surface mines and the size of those fills may be smaller than those 
associated with surface mines, but that is not always true. In 
addition, we find no reason that fills associated with underground 
mines should be subject to lesser safety, stability, or environmental 
protection requirements than fills associated with surface mines.
    Some industry commenters on the proposed rule also opposed the 
September 26, 1983, rule changes that classified underground 
development waste as coal mine waste and required that coal mine waste 
(including underground development waste) disposed of outside the mine 
workings and excavations be placed in accordance with 30 CFR 817.83, 
which contains the performance standards for refuse piles. The 
commenters argued that underground development waste should be treated 
as excess spoil, not coal mine waste. The commenters' objections are 
untimely. The definition of coal mine waste in 30 CFR 701.5 is now a 
matter of settled law, as is the removal of the applicability of the 
excess spoil performance standards at 30 CFR 817.71 through 817.73 to 
underground development waste. The performance standard at 30 CFR 
817.81(a), which requires that coal mine waste disposed of outside the 
mine workings and excavations be placed in designated coal mine waste 
disposal areas within the permit area, also is settled law. The 
existing regulations at 30 CFR 817.71(i) allow coal mine waste to be 
placed in excess spoil fills with the approval of the regulatory 
authority,

[[Page 75852]]

but only if the waste is nontoxic and non-acid-forming and only if the 
waste is placed in accordance with 30 CFR 817.83 (the requirements for 
refuse piles).
    Several commenters expressed concern that the 1983 rule's 
classification of underground development waste as coal mine waste 
could prohibit the use of underground development material for 
construction of face-up areas, support facilities, and other beneficial 
uses. Underground development waste is unlikely to be used for the 
construction of face-up areas because the face-up of the mine must be 
completed and construction of mine adits must begin before underground 
development waste would be produced. Perhaps the commenters are 
interpreting the 1983 rules as classifying material removed as part of 
the face-up of the underground mine as underground development waste. 
If so, the commenters are misreading those rules. Nothing in the 
definitions of coal mine waste or underground development waste 
classifies face-up materials as either coal mine waste or underground 
development waste. In addition, nothing in our existing rules or the 
rules that we are adopting today would prohibit the use of underground 
development waste for construction of support facilities or other 
mining-related uses, provided the use of the waste for those purposes 
complies with all regulatory program requirements applicable to those 
uses. The final rules that we are adopting today apply only to the 
permanent disposal of coal mine waste (including underground 
development waste), not to the temporary use of those materials for 
mining-related purposes. In other words, our excess spoil rules do not 
apply to the temporary storage of material removed during face-up of an 
underground mine if that material must be returned or regraded upon the 
completion of mining to restore the approximate original contour. The 
excess spoil rules apply only to permanent placement.
    The rationale for the specific provisions concerning excess spoil 
that we are adopting as part of section 784.19 today is the same as the 
rationale for the changes to section 780.35 that we are also adopting 
as part of this final rule. See Part VIII.D. of this preamble for a 
discussion of those rules and the rationale for them, substituting 
section 516(b)(11) for references to section 515(b)(24) and replacing 
references to the surface mining performance standards in part 816 with 
references to the corresponding underground mining performance 
standards in part 817.

F. Sections 816.11 and 817.11: Signs and Markers

    Prior to adoption of this final rule, the requirement that the 
operator mark buffer zones for perennial and intermittent streams 
appeared in both the stream buffer zone rules in sections 816.57(b) and 
817.57(b) and the rules concerning signs and markers in sections 
816.11(e) and 817.11(e). As proposed, we are consolidating our buffer 
zone marking requirements in sections 816.11(e) and 817.11(e). As 
revised, section 816.11(e), which applies to surface mines, provides 
that the boundaries of any buffer to be maintained between surface 
mining activities and perennial or intermittent streams in accordance 
with sections 780.28 and 816.57(a) must be clearly marked to avoid 
disturbance by surface mining activities. Similarly, section 817.11(e), 
which applies to underground mines, provides that the boundaries of any 
buffer to be maintained between surface activities and perennial or 
intermittent streams in accordance with sections 784.28 and 817.57(a) 
must be clearly marked to avoid disturbance by surface operations and 
facilities resulting from or in connection with an underground mine.
    We received no comments on these changes.

G. Sections 816.43 and 817.43: Diversions

    Before adoption of this final rule, sections 816.43(b)(1) and 
817.43(b)(1) provided that the regulatory authority may approve 
diversion of perennial and intermittent streams within the permit area 
after making the finding relating to stream buffer zones that the 
diversion will not adversely affect the water quantity and quality and 
related environmental resources of the stream. The referenced finding 
was the second part of the finding formerly located in sections 
816.57(a)(1) and 817.57(a)(1).
    As proposed, in this final rule we are replacing that finding with 
a provision that is more consistent with the underlying provisions of 
SMCRA. Sections 515(b)(10), 515(b)(24), 516(b)(9), and 516(b)(11) of 
SMCRA do not establish or authorize a ``will not adversely affect'' 
standard like the one formerly found in our stream buffer zone rules at 
30 CFR 816.57(a)(1) and 817.57(a)(1). Section 515(b)(10) requires that 
surface coal mining and reclamation operations be conducted to 
``minimize the disturbances to the prevailing hydrologic balance at the 
mine site and in associated offsite areas and to the quality and 
quantity of water in surface and ground water systems both during and 
after surface coal mining operations and during reclamation.''
    Section 516(b)(9), which pertains to underground coal mining 
operations, contains similar language with the exception that it does 
not mention water quality. Sections 515(b)(24) and 516(b)(11) require 
that surface coal mining and reclamation operations be conducted to 
``minimize disturbances and adverse impacts of the operation on fish, 
wildlife, and related environmental values'' ``to the extent possible 
using the best technology currently available.'' As demonstrated by 
these quotes, SMCRA establishes a minimization standard rather than an 
absolute ``will not adversely affect'' standard with respect to 
disturbance of the hydrologic balance and disturbances and adverse 
impacts on fish, wildlife, and related environmental values.
    Consequently, we proposed to revise paragraph (b) of sections 
816.43(b)(1) and 817.43(b)(1) to provide that the regulatory authority 
may approve the diversion of perennial and intermittent streams within 
the permit area if the diversion is located, designed, constructed, and 
maintained using the best technology currently available to minimize 
adverse impacts to fish, wildlife, and related environmental values to 
the extent possible. This provision is consistent with sections 
515(b)(24) and 516(b)(11) of SMCRA. Nothing in this rule should be 
construed as superseding the performance standards for the protection 
of fish, wildlife, and related environmental values in 30 CFR 816.97 
and 817.97 or the related permitting requirements at 30 CFR 780.16 and 
784.21.
    No counterpart to sections 515(b)(10) or 516(b)(9) is necessary 
because paragraph (a)(1) of sections 816.43 and 817.43, which applies 
to diversions of all types, including stream-channel diversions, 
already provides that ``[a]ll diversions shall be designed to minimize 
adverse impacts to the hydrologic balance within the permit and 
adjacent areas.'' Furthermore, paragraph (a)(2)(iii) of sections 816.43 
and 817.43 requires that all diversions be designed, located, 
constructed, maintained, and used to prevent, to the extent possible, 
using the best technology currently available, additional contributions 
of suspended solids to streamflow outside the permit area.'' The 
language of that paragraph closely resembles the language of sections 
515(b)(10)(B)(i) and 516(b)(9)(B) of the Act, which are two of the 
statutory provisions underlying the existing stream buffer zone rules. 
Furthermore, our permitting regulations

[[Page 75853]]

at 30 CFR 780.29 and 784.29 require that each permit application 
include a description of how stream-channel diversions and other 
diversions are to be constructed in compliance with 30 CFR 816.43 and 
817.43, respectively.
    In this final rule, we are adopting the proposed revisions to 
sections 816.43(b)(1) and 817.43(b)(1) with one editorial change. 
Instead of stating that the regulatory authority may approve the 
diversion of perennial and intermittent streams within the permit area 
if the diversion is located, designed, constructed, and maintained 
using the best technology currently available to minimize adverse 
impacts to fish, wildlife, and related environmental values to the 
extent possible, the final rule applies that provision only to the 
location and design of the diversion. This limitation is appropriate 
because those are the elements that would be included in the permit 
application. Construction and maintenance are more appropriately 
included in a separate performance standard, which we have accomplished 
by adding a sentence to the end of paragraph (b)(1) stating that the 
permittee must construct and maintain the diversion in accordance with 
the approved design.
    The U.S. Fish and Wildlife Service stated that we were adopting a 
less protective standard by revising the standard from one that 
required a finding that ``the diversion will not adversely affect the 
water quantity and quality and related environmental resources of the 
stream'' to a requirement that the diversion use the best technology 
currently available to minimize adverse impacts to fish, wildlife, and 
related environmental values to the extent possible. We do not dispute 
this characterization. However, the new standard is one that reflects 
the provisions of SMCRA whereas the previous standard has no direct 
connection to SMCRA and is neither appropriate nor practicable. The 
Service recommended that we work with them to develop state or regional 
design standards that are practicable and effective. We accept this 
recommendation. We also intend to invite EPA to participate because 
that agency also expressed an interest in this process.
    The last sentence of paragraph (a)(3) of sections 816.43 and 817.43 
as published on September 26, 1983 (48 FR 43993), provides that ``[a] 
permanent diversion or a stream channel reclaimed after the removal of 
a temporary diversion shall be designed and constructed so as to 
restore or approximate the premining characteristics of the original 
stream channel including the natural riparian vegetation to promote the 
recovery and enhancement of the aquatic habitat.'' In the preamble to 
the proposed rule, we stated that the sentence pertained only to 
stream-channel diversions. Therefore, we proposed to move that sentence 
to paragraph (b) of sections 816.43 and 817.43 because those sections 
contain all other performance standards that pertain only to stream-
channel diversions. As proposed, the final rule that we are adopting 
today inserts that sentence in revised form as paragraph (b)(4) of 
sections 816.43 and 817.43 and redesignates former paragraph (b)(4) as 
paragraph (b)(5).
    However, EPA noted that the effect of the proposed changes would be 
to limit the requirements of that sentence to diversions of perennial 
and intermittent streams, thus excluding diversions of ephemeral 
streams. EPA stated that nothing in the existing rules limited the 
scope of the last sentence of paragraph (a)(3) to perennial and 
intermittent streams. While supporting new paragraph (b)(4), EPA urged 
us to also retain the last sentence of paragraph (a)(3) in paragraph 
(a) to ensure that its requirements continue to apply to permanent 
diversions of miscellaneous flows (including ephemeral streams) under 
paragraph (c).
    After considering this comment, we have decided not to implement 
our proposal to remove the last sentence of paragraph (a)(3). We 
recognize that there will be situations in which permanent diversions 
of ephemeral streams are constructed and that some ephemeral streams 
may have riparian vegetation or aquatic habitats that must be replaced 
or restored to the extent required under paragraphs (a) and (f) of 30 
CFR 816.97 and 817.97. However, because all other elements of paragraph 
(a)(3) pertain only to temporary diversions, we are redesignating that 
sentence as new paragraph (a)(4) and are redesignating existing 
paragraph (a)(4) as paragraph (a)(5). In addition, for clarity and 
consistency with new paragraph (b)(4), we have slightly revised new 
paragraph (a)(4) by replacing the phrase ``stream channel reclaimed 
after the removal of a temporary diversion'' with ``stream channel 
restored after the completion of mining'' to avoid creating the 
impression that the temporary diversion must be removed before 
constructing a restored stream channel. We also inserted the modifier 
``any'' in front of ``riparian vegetation'' because not all ephemeral 
streams have riparian vegetation.
    We have decided not to adopt our proposed editorial revisions to 
paragraph (a)(3) of sections 816.43 and 817.43 because we have 
determined that they would not improve the clarity of that paragraph.
    Revised paragraph (b)(4) provides that a permanent stream-channel 
diversion or a stream channel restored after the completion of mining 
must be designed and constructed using natural channel design 
techniques so as to restore or approximate the premining 
characteristics of the original stream channel, including the natural 
riparian vegetation and the natural hydrological characteristics of the 
original stream, to promote the recovery and enhancement of the aquatic 
habitat and to minimize adverse alteration of stream channels on and 
off the site, including channel deepening or enlargement, to the extent 
possible. The final rule is similar to the proposed rule, although, to 
improve clarity, we replaced the phrase ``stream channel reclaimed 
after the removal of a temporary diversion'' in the proposed rule with 
the more accurate phrase ``stream channel restored after the completion 
of mining.'' The revised language reflects the facts that, in the 
context of this rule, a stream channel is restored, not reclaimed (in 
30 CFR 701.5, we define reclamation in terms of the postmining land 
use), and that the restored stream channel must be in place before the 
temporary stream-channel diversion is removed.
    As proposed, paragraph (b)(4) includes new language concerning 
natural channel design and adverse alteration of stream channels. This 
language reinforces and clarifies the meaning of the requirement to 
restore or approximate the premining characteristics of the original 
stream. The goals of natural channel design include creating a stream 
channel that will maintain the equilibrium of a natural stream, neither 
downcutting (degrading) nor filling in (aggrading). A natural channel 
is not stable in the sense that a concrete, trapezoidal channel is 
stable. Depending on the stream type, a natural channel may meander, 
eroding and depositing sediment at natural rates as part of its dynamic 
equilibrium. The channel must pass the water and sediment that it 
receives downstream, and the channel must maintain a connection to the 
stream's floodplain. The new provisions are consistent with sections 
515(b)(24) and 516(b)(11) of SMCRA, which require use of the best 
technology currently available to minimize disturbances and adverse 
impacts to fish, wildlife, and related environmental values to the 
extent possible.
    In a final rule on compensatory mitigation for losses of aquatic

[[Page 75854]]

resources, published on April 10, 2008 (73 FR 19594), EPA and the Corps 
promulgated standards for compensatory mitigation for adverse impacts 
on streams under section 404 of the Clean Water Act. The provisions of 
the EPA/Corps mitigation rule related to mitigation work plans for 
streams are contained in 33 CFR 332(c)(7) and include concepts of 
natural stream channel design. In certain situations, mine operators 
may find it advantageous to design, construct, and maintain stream-
channel diversions in a manner that satisfies both the requirements of 
sections 816.43 and 817.43 of this rule and the requirements of the 
EPA/Corps compensatory mitigation rule.
    In the preamble to the proposed rule, we sought comment on whether 
the revisions to sections 816.43(b) and 817.43(b) were sufficient to 
meet the requirements of SMCRA, or whether we should also revise our 
permitting rules to include a requirement for submission of 
alternatives and an analysis of the environmental impacts of each 
alternative whenever the applicant proposes to mine through waters of 
the United States or divert perennial or intermittent streams. The 
requirements would be similar to the corresponding requirements for 
excess spoil fills and coal mine waste disposal facilities in sections 
780.25(d)(1) and 780.35(a)(3) for surface mines or sections 
784.16(d)(1) and 784.19(a)(3) for underground mines. Potential 
alternatives could involve the number and length of stream segments 
diverted, diversion design, construction technique, location of the 
diversion, and whether the diversion is temporary or permanent.
    EPA supported requiring an alternatives analysis for both stream-
channel diversions and mining through streams, stating that the 
potential for significant stream degradation as a result of these 
activities would be minimized by doing so. The agency stated that 
stream diversions and mining through streams often have adverse impacts 
including direct losses of stream function and resulting alteration of 
downstream hydrology, water chemistry, and biotic communities. The 
agency noted the preamble listed no examples of alternatives to mining 
through streams and suggested that those alternatives could consist of 
variations in the number and length of stream segments impacted, 
construction techniques, reclamation design, and location.
    One state regulatory authority opposed requiring an alternatives 
analysis for mining through streams and stream-channel diversions. The 
commenter stated that doing so would exceed the requirements of both 
SMCRA and the Clean Water Act and that the Corps does not require an 
analysis of alternatives in these situations. The commenter supported 
the natural-channel design requirement.
    After evaluating these comments, we have decided not to require an 
alternatives analysis either for stream diversions or mining through 
streams. First, when coal reserves exist beneath a stream and those 
reserves could be extracted by surface mining methods, they are either 
mined or they are not. Under SMCRA, an operator's decision on whether 
to mine through a stream will be determined by geology, topography, and 
economics. We have no authority under SMCRA to prevent diversion of a 
stream or mining through a stream unless SMCRA prohibits surface coal 
mining operations on the land where the stream is located. (However, 
SMCRA does not override prohibitions that apply under other laws and 
regulations. Any such prohibitions will continue to apply according to 
the terms of those laws and regulations.) Therefore, an alternatives 
analysis for mining through a stream is not appropriate under SMCRA. 
With respect to stream diversions, this final rule strengthens the 
requirement that diversions approximate natural stream characteristics 
by adding a requirement for the use of natural-channel design 
techniques. Construction of stream-channel diversions in accordance 
with these rules should minimize damage to undisturbed areas of the 
stream and should result in only temporary adverse impacts to the 
diverted segment. Because the rule already requires the use of natural-
channel design techniques, an alternatives analysis for stream 
diversions would add no value to the decision-making process.
    Finally, as proposed, we are redesignating former paragraph (b)(4) 
of sections 816.43 and 817.43 as paragraph (b)(5). In accordance with 
the proposed rule, we are revising that paragraph to require that a 
qualified registered professional engineer certify both the design and 
construction of all stream-channel restorations. The former rule 
applied that requirement only to diversions of perennial and 
intermittent streams. We are adding the additional requirement because 
stream-channel restorations are even more significant in terms of 
stability and environmental concerns than temporary diversions that 
exist only for the duration of mining; i.e., reconstructed stream 
channels should be safe and stable and should approximate premining 
conditions regardless of whether the channel is a temporary or 
permanent diversion or a restoration of the original channel. In 
addition, we are making editorial revisions to this paragraph to 
clarify that separate certifications are required for the design and 
construction of stream-channel diversions and stream restorations and 
to specify which requirements apply to the design certification and 
which apply to the construction certification.

H. Sections 816.46 and 817.46: Siltation Structures

    Paragraph (b)(2) of 30 CFR 816.46 and 817.46 (1983) required that 
all surface drainage from the disturbed area be passed through a 
siltation structure before leaving the permit area. In essence, that 
paragraph prescribed siltation structures (sedimentation ponds and 
other treatment facilities with point-source discharges) as the best 
technology currently available for sediment control. However, paragraph 
(b)(2) was struck down upon judicial review because the court found 
that the preamble to the rulemaking in which it was adopted did not 
articulate a sufficient basis for the rule under the Administrative 
Procedure Act. The court stated that the preamble did not adequately 
discuss the benefits and drawbacks of siltation structures and 
alternative sediment control methods and did not enable the court ``to 
discern the path taken by [the Secretary] in responding to commenters'' 
concerns'' that siltation structures in the West are not the best 
technology currently available. See In re: Permanent Surface Mining 
Regulation Litigation II, Round III, 620 F. Supp. 1519, 1566-1568 
(D.D.C. July 15, 1985).
    On November 20, 1986 (51 FR 41961), we suspended the rules struck 
down by the court. To avoid any confusion that may result from the 
continuing publication of those rules in the Code of Federal 
Regulations, we proposed to remove paragraph (b)(2) of sections 816.46 
and 817.46 and redesignate the remaining paragraphs of those sections 
accordingly. The continued presence of the suspended paragraphs in the 
published version of the rules has been a source of ongoing confusion.
    We received no comments opposing this proposal. Therefore, we are 
removing paragraph (b)(2) of sections 816.46 and 817.46 as proposed. 
This action supersedes the 1986 suspension of the paragraph being 
removed. Sections 816.45 and 817.45, which remain unchanged by this 
rule, set forth various measures and techniques that may constitute the 
best technology currently available for sediment control,

[[Page 75855]]

although applicants and regulatory authorities are not limited to those 
measures and techniques.

I. Sections 816.57 and 817.57: Activities in or Adjacent to Perennial 
or Intermittent Streams

1. Background
    Perennial and intermittent streams overlie coal deposits in all 
regions of the nation. To the extent economically feasible and allowed 
by law, surface mining operations often relocate those streams as part 
of the process of recovering the underlying coal. Streams also may be 
relocated to facilitate the construction of mine-related facilities 
such as coal preparation plants. In other cases, steep slopes, narrow 
valleys and other topographical limitations may result in the 
construction of excess spoil fills, refuse piles, sedimentation ponds, 
and coal mine waste impoundments in streams because the stream valley 
is the only logical and technologically and economically feasible 
location for those structures. All types of surface coal mining and 
reclamation operations may experience the need to construct bridge 
abutments, culverts, or other structures in or near perennial or 
intermittent streams to facilitate crossing of those streams by roads, 
railroads, conveyors, pipelines, utilities, or similar facilities. 
Neither SMCRA nor the Clean Water Act precludes any of these 
activities, provided the activities comply with all applicable 
requirements of those laws and their implementing regulations. Parts II 
and III.A. of this preamble explain the extent to which either SMCRA or 
its legislative history contemplates the activities listed above. For 
example, section 515(b)(22)(D) mentions the construction of excess 
spoil fills in areas containing natural watercourses, springs, and wet-
weather seeps. In addition, the legislative history of SMCRA indicates 
that Congress anticipated the continued construction of coal mine waste 
impoundments in streams.
    As discussed in Part III.A. of this preamble, Congress, in 
developing the legislation that ultimately became SMCRA, specifically 
considered and rejected inclusion of an absolute prohibition on 
disturbance of land within 100 feet of certain streams. While we 
subsequently adopted stream buffer zone rules as part of our initial 
and permanent program regulations implementing SMCRA, we and the state 
regulatory authorities have historically interpreted those rules as 
allowing placement of fill material, including coal mine waste, in 
waters of the United States, subject to approval of that placement 
under the Clean Water Act. As discussed at length in Part III.E. of 
this preamble, our historical interpretation and application of the 
stream buffer zone rule is in harmony with statements in the decision 
of the U.S. Court of Appeals for the Fourth Circuit in Kentuckians for 
the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 
2003). The rules that we are adopting today are intended to clarify any 
lingering ambiguity regarding the appropriate interpretation of the 
stream buffer zone rules.
    The stream buffer zone rule effectively prescribes maintenance of a 
100-foot undisturbed zone between perennial or intermittent streams and 
surface mining activities (or, for underground mines, surface 
activities on the surface of lands) as the best technology currently 
available to fulfill the sediment control and fish and wildlife 
protection requirements of sections 515(b)(10)(B)(i), 515(b)(24), 
516(b)(9)(B), and 516(b)(11) of SMCRA. However, the concept of 
maintenance of an undisturbed buffer zone as the best technology 
currently available for purposes of those sections of the Act applies 
only to activities that do not involve disturbance of the streambed and 
do not inherently occur within the buffer zone. When the regulatory 
authority and other pertinent government agencies approve the conduct 
of activities within the stream and/or its buffer zone, an undisturbed 
buffer between those activities and the stream inherently cannot be 
maintained. Construction of fills and impoundments in streams 
inherently involves disturbance of all or part of what would have been 
the buffer zone for the affected stream segment, as does construction 
of most stream-crossing structures. In addition, when a stream is 
diverted, the original streambed and what would have been its buffer 
zone typically are mined through or used for construction of mining-
related facilities. Nothing in this discussion should be construed as 
meaning that all sedimentation ponds, excess spoil fills, refuse piles, 
coal mine waste slurry impoundments, and stream crossing structures are 
automatically exempt from the requirement to maintain an undisturbed 
buffer zone. Only those structures and activities (or portions thereof) 
for which there is no reasonable alternative location qualify for this 
exception.
    Section 827.12 of our rules does not apply the stream buffer zone 
rule in sections 816.57 and 817.57 to coal preparation plants not 
located within the permit area of a mine. See 48 FR 20399, May 5, 1983. 
We proposed no changes to section 827.12 and nothing in the final rule 
that we are adopting today alters that situation. As part of this final 
rule, we are moving the permitting aspects of the previous version of 
the stream buffer zone rule in sections 816.57 and 817.57 to new 
sections 780.28 and 784.28. Existing section 785.21(c) provides that 
coal preparation plants not located within the permit area of a mine 
are subject not only to the special permitting requirements of section 
785.21, but also to ``all other applicable requirements of this 
subchapter.'' ``This subchapter'' refers to subchapter G of chapter 
VII, which contains the permitting requirements for all surface coal 
mining and reclamation operations. Thus, to ensure that section 
785.21(c) is not now interpreted as including the newly added 
permitting requirements related to the stream buffer zone rule, we are 
adding paragraph (a)(2)(i) of sections 780.28 and 784.28 to specify 
that the requirements of those sections do not apply to applications 
under section 785.21 for coal preparation plants not located within the 
permit area for a mine. See Part VIII.C. of this preamble. However, the 
other permitting rules that we are adopting today, including the new 
informational and analytical requirements for proposed excess spoil 
fills and coal mine waste disposal facilities, typically will apply to 
those applications, either through operation of section 785.21(c) or 
through cross-references in the performance standards listed in section 
827.12. In addition, section 827.12(b) specifically requires that any 
stream-channel diversion comply with section 816.43.
2. General Description of Changes
    The revised version of sections 816.57 and 817.57 that we are 
adopting today attempts to minimize disputes and misunderstandings 
associated with application of the 1983 version of the stream buffer 
zone rules in sections 816.57 and 817.57. The language of the rules 
that we are adopting today better conforms to the underlying provisions 
of SMCRA. The revised rules distinguish between those situations in 
which maintenance of an undisturbed buffer between surface activities 
and perennial and intermittent streams constitutes the best technology 
currently available to implement the underlying statutory provisions 
(sections 515(b)(10)(B)(i) and (b)(24) and 516(b)(9)(B) and (b)(11) of 
SMCRA) and those situations in which maintenance of a buffer is neither 
feasible nor appropriate because the stream segment will be diverted, 
altered by a culvert or other stream-crossing structure,

[[Page 75856]]

impounded, or filled. In the case of stream crossings involving 
bridges, pipelines, utilities, or conveyors, the stream itself may 
sometimes remain undisturbed, but the crossing will then most likely 
require installation of abutments within the buffer zone. Construction 
of fills and impoundments in streams inherently involves disturbance of 
all or part of what would have been the buffer zone for the affected 
stream segment, as does construction of most stream-crossing 
structures. In addition, when a stream is diverted, the original 
streambed and what would have been its buffer zone typically are mined 
through or used for construction of mining-related facilities.
    As proposed, we are reorganizing our rules to separate permitting 
requirements from performance standards. The previous version of 
paragraph (a) of sections 816.57 and 817.57 contained both permitting 
requirements and performance standards. The rules that we are adopting 
today separate the two for clarity and consistency. Revised sections 
816.57 and 817.57 include only performance standards. As proposed, we 
are moving the permitting aspects of the stream buffer zone rules, 
which were formerly codified in paragraph (a)(1) of sections 816.57 and 
817.57 as part of the performance standards in subchapter K, to new 
sections 780.28 and 784.28, which are part of the permitting 
requirements of subchapter G.
    As proposed, we are deleting former paragraph (a)(2) of sections 
816.57 and 817.57, which required the regulatory authority to make a 
finding that any proposed temporary or permanent stream-channel 
diversion will comply with section 816.43 or 817.43. This provision is 
unnecessary because the obligation to comply with the stream-channel 
diversion requirements of sections 816.43 and 817.43 is independent of 
any cross-reference in section 816.57 or 817.57. We are consolidating 
the permitting requirements for stream-channel diversions in sections 
816.43 and 817.43, which we are revising as proposed. See Part VIII.G. 
of this preamble.
    We also are deleting former paragraph (b) of sections 816.57 and 
817.57, which provided that the area not to be disturbed must be 
designated as a buffer zone and marked as specified in section 816.11 
or 817.11. This deletion is not a substantive change because the 
requirement to mark the area to be left undisturbed as a buffer zone 
also appears in sections 816.11(e) and 817.11(e), which we have revised 
for clarity and consistency as discussed in Part VIII.F. of this 
preamble. We received no response to our request in the preamble to the 
proposed rule for comment on whether a formal regulatory definition of 
``buffer'' or ``buffer zone'' would be useful. We did not include a 
definition in the proposed rule and we are not adopting a definition as 
part of this final rule because we find the meaning of those terms to 
be clear without a regulatory definition.
    Commenters representing industry and state regulatory authorities 
generally supported the proposed revisions to sections 816.57 and 
817.57 as much-needed and appropriate clarifications of those rules. 
However, one commenter stated that the proposed rule did not go far 
enough:

    We agree with how the clarification more explicitly reflects the 
historic interpretation by distinguishing between activities that 
are not planned to occur in streams where a buffer zone does apply 
and those activities that inherently involve placement of fill or 
the disturbance of the stream channel. However, the text of the rule 
uses new terminology such as ``prohibition'' and ``exceptions'' 
which incorrectly implies that the rule (and therefore the statute) 
prohibits disturbances in stream channels. As the agency correctly 
notes in the preamble, coal mining involves activities that 
inherently involve disturbances or placement of fill in the stream 
so a buffer zone is neither feasible nor appropriate. Accordingly, 
for those activities, there is no buffer zone at all. As OSM 
explains, ``those activities are governed by other regulations.'' 
The conduct of those types of activities is approved in the permit 
in accordance with the ``other regulations'' which specifically 
govern those activities.
    The rule as presently structured by setting forth the buffer 
zone requirement and then listing exceptions will inevitably prove 
to be inflexible or quickly obsolete since there are many types of 
activities where a buffer zone is infeasible or inappropriate. Of 
course this can be remedied by simply adding a catch-all provision 
to the exceptions that recognizes any other activity planned and 
approved to occur in the stream. However, we believe it far better 
to restructure the rule so that it more straightforwardly reflects 
the underlying functional and operational distinction that has 
guided the rule's application historically: (1) activities that 
occur in the streams and, (2) activities that are not designed to 
occur in the streams.

The commenter provided a suggested rewrite of sections 816.57 and 
817.57, which we are not adopting, for the most part. We appreciate the 
commenter's support of the basic principle underlying our revisions to 
the stream buffer zone rule, but we disagree with the commenter's 
arguments against use of the terms ``prohibitions'' and ``exceptions.'' 
We find that those terms accurately describe the pertinent portions of 
the stream buffer zone rule. We have revised the rule to eliminate the 
term ``prohibitions'' from the rule text, but we continue to 
characterize paragraph (a) of sections 816.57 and 817.57 as a 
prohibition in the preamble.
    We also continue to use the term ``exception'' as the heading for 
paragraph (b) of sections 816.57 and 817.57, but, in response to this 
comment and a desire to improve the clarity of the proposed rule, we 
have revised the introductory text of that paragraph to clarify that 
the term ``exception'' means that the buffer requirement of paragraph 
(a) of sections 816.57 and 817.57 does not apply to those segments of a 
perennial or intermittent stream for which the regulatory authority, in 
accordance with sections 780.28(d), 784.28(d), 816.43(b)(1), or 
817.43(b)(1), approves one or more of the activities listed in 
paragraphs (b)(1) through (b)(4) of sections 816.57 and 817.57. Thus, 
as used in the final rule and this preamble, the term ``exception'' 
does not apply to the activity itself.
    The term ``exception'' in the proposed rule and its preamble 
sometimes refers to the activities listed in paragraphs (b)(1) through 
(b)(4) of sections 816.57 and 817.57 (most of which refer only to 
activities in the stream itself, not to activities in the buffer zone). 
At other times, it refers to land within 100 feet of the stream segment 
directly impacted by those activities. However, in this final rule, the 
term exception refers only to what would otherwise be the buffer zone 
for stream segments for which the regulatory authority approves one or 
more of the activities listed in paragraphs (b)(1) through (b)(4). This 
usage is consistent with the preamble to the proposed rule, which 
describes paragraph (b) of sections 816.57 and 817.57 as ``providing an 
exception from the prohibition on conducting activities that would 
disturb the surface of lands within 100 feet of waters of the United 
States.'' 72 FR 48908-48909, August 24, 2007. In addition, it is 
consistent with the intent of the proposed rule, which as stated in the 
introductory clause of proposed paragraph (b), was to specify the 
circumstances in which the requirement to avoid disturbance of land 
within 100 feet of waters of the United States did not apply.
    Under the final rule, with the exception of stream-channel 
diversions, for which all requirements appear in sections 816.43(b) and 
817.43(b), application requirements for activities that take place in 
perennial or intermittent streams appear in sections 780.28(b) and 
784.28(b), regulatory authority approval standards for those activities 
appear in sections 780.28(d)

[[Page 75857]]

and 784.28(d), and performance standards for those activities appear in 
paragraphs (b)(1) through (b)(4) and (c) of sections 816.57 and 817.57. 
With respect to activities that will take place within 100 feet of a 
perennial or intermittent stream segment, but will not disturb the 
stream segment itself, the final rule establishes application 
requirements in sections 780.28(c) and 784.28(c), regulatory authority 
approval standards in sections 780.28(e) and 784.28(e), and performance 
standards in paragraph (c) of sections 816.57 and 817.57.
    We are not adopting the commenter's recommendation that we revise 
paragraph (b) of sections 816.57 and 817.57 to exclude buffer zones for 
stream segments affected by any activity planned and approved to occur 
in the stream. We find this exception to be too broad. We believe that 
the activities that we list in paragraphs (b)(1) through (b)(4) include 
all situations in which it may be inherently necessary to conduct 
activities in a stream segment to facilitate surface coal mining and 
reclamation operations. We also have reviewed our rules to ensure that, 
for those activities, the obligation to minimize disturbances and 
adverse impacts to fish, wildlife, and related environmental values to 
the extent possible using the best technology currently available has 
been applied through other requirements. To the extent that a SMCRA 
permit applicant may receive authorization under the Clean Water Act to 
place fill material in the stream as part of an activity other than 
those listed in paragraphs (b)(1) through (b)(4), we will take that 
approval into consideration during the SMCRA permitting process. 
However, any activities conducted in the buffer zone for the stream 
segment affected by the Clean Water Act authorization will remain 
subject to the pertinent provisions of sections 780.28 and 816.57 or 
sections 784.28 and 817.57.
    Many commenters strongly opposed our proposed revisions to sections 
816.57 and 817.57, characterizing paragraph (b) in particular as 
creating new and unwarranted exceptions. We disagree with this 
characterization. The 1983 version of the stream buffer zone rule has 
historically been applied--and continues to be applied--to allow each 
of the activities listed in paragraphs (b)(1) through (b)(4) to occur. 
As other commenters emphasize, the requirement to maintain an 
undisturbed buffer between the stream and surface activities related to 
surface coal mining and reclamation operations has not been applied and 
does not apply to activities planned and approved to occur in 
intermittent or perennial streams--and in those situations the 
rationale for maintaining an undisturbed buffer ceases to exist. As 
discussed at length in Part III.E. of this preamble, our historical 
approach to application of the stream buffer zone rule is in harmony 
with statements of the U.S. Court of Appeals for the Fourth Circuit in 
its decision in Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 
317 F.3d 425, 442-443 (4th Cir. 2003) (``it is beyond dispute that 
SMCRA recognized the possibility of placing excess spoil material in 
waters of the United States'').
    The final rule that we are adopting today clarifies, but in this 
regard does not alter, the basic historical and current application of 
the 1983 stream buffer zone rule. Consistent with the application of 
the 1983 stream buffer zone rule, paragraph (b) of final sections 
816.57 and 817.57 recognizes that the conduct of surface coal mining 
and reclamation operations sometimes requires the diversion of 
perennial and intermittent streams, the construction of fills in 
streams, and other disturbances of stream segments for sediment control 
and construction of stream crossings. Therefore, the final rule 
provides that the requirement to maintain an undisturbed buffer zone 
for perennial and intermittent streams does not apply to those stream 
segments for which the regulatory authority approves one or more of the 
activities listed in paragraphs (b)(1) through (b))(4) of sections 
816.57 and 817.57.
3. Paragraph (a)
    Final paragraph (a)(1) of sections 816.57 and 817.57 specifies 
that, except as provided in paragraph (b) and consistent with paragraph 
(a)(2), the permittee or operator may not conduct surface activities 
that would disturb the surface of land within 100 feet, measured 
horizontally, of a perennial or intermittent stream unless the 
regulatory authority authorizes the disturbance under paragraph (e) of 
section 780.28 or 784.28. With the exception of the addition of a new 
paragraph (a)(2), paragraph (a) of final sections 816.57 and 817.57 is 
substantively identical to the proposed rule, although we have made 
minor editorial revisions for clarity and brevity.
    The final rule adds a new paragraph (a)(2) to sections 816.57 and 
817.57 to address Clean Water Act requirements. We are also adding a 
citation to the new paragraph in paragraph (a)(1). New paragraph (a)(2) 
provides that surface mining activities in perennial or intermittent 
streams may be authorized only where those activities would not cause 
or contribute to the violation of applicable State or Federal water 
quality standards developed pursuant to the Clean Water Act, as 
determined through certification under section 401 of the Clean Water 
Act (33 U.S.C. 1341) or a permit under section 402 or 404 of the Clean 
Water Act (33 U.S.C. 1342 and 1344, respectively). This language does 
not establish a general prohibition against mining activities in 
intermittent or perennial streams, including the placement of excess 
spoil or other fill materials in those streams. Instead, it reiterates 
that mining-related discharges are subject to the permitting 
requirements of sections 402 and 404 of the Clean Water Act and the 
water quality certification requirement under section 401 of the Clean 
Water Act. These requirements are independently applicable under the 
Clean Water Act.
    Paragraph (a)(2) does not require the SMCRA regulatory authority to 
make a determination that a particular mining activity is consistent 
with applicable water quality standards. The determination that a 
particular mining activity is consistent with applicable water quality 
standards will be made only by the appropriate Federal or State entity 
responsible for the issuance of permits under sections 402 and 404 of 
the Clean Water Act and certification under section 401 of that law. 
The rule anticipates that a SMCRA permit will typically be issued prior 
to issuance of any permits or certifications required under the Clean 
Water Act. However, in those circumstances, new paragraph (d)(2) of 
sections 780.28 and 784.28 provides that a SMCRA permit authorizing 
mining activities in perennial or intermittent streams must include a 
condition requiring that the permittee obtain all required approvals 
under the Clean Water Act before initiating those activities. As the 
rule itself makes clear, this provision of the stream buffer zone rule 
is not applicable to any water not subject to jurisdiction under the 
Clean Water Act. Further, any discharges to waters not covered by the 
stream buffer zone rule that are jurisdictional ``waters of the United 
States'' under the Clean Water Act must still comply with all 
applicable permitting requirements under that law. As discussed in more 
detail in Part IV of this preamble, none of the revisions to the stream 
buffer zone rule or other elements of this final rule affect a mine 
operator's responsibility to comply with water quality standards, 
effluent limitations, or other requirements of the Clean Water Act.
    A few commenters argued that a 100-foot buffer zone [see paragraph 
(a)(1) of

[[Page 75858]]

the final rule] was insufficient to ensure protection of fish, 
wildlife, and related environmental values associated with the streams. 
Those comments are not germane to this rulemaking because we did not 
propose any changes to the 100-foot distance, which has long been a 
matter of settled law, nor did we seek comments on the adequacy of that 
distance. To the extent that commenters provided scientific data to 
support their suggestions, they did so primarily in the context of the 
value of buffers for terrestrial species. However, the width of the 
buffer that we established in our rules is based upon sediment control 
and protection of aquatic ecosystems.
    In developing the stream buffer zone rule for the initial 
regulatory program, we selected the 100-foot width based primarily on 
sediment control considerations. See the preamble to 30 CFR 
715.17(d)(3) at 42 FR 62652, December 13, 1977, which states that 
``[t]he 100-foot limit is based on typical distances that should be 
maintained to protect stream channels from abnormal erosion.'' 
Preambles to subsequent versions of the stream buffer zone rule mention 
the benefits that buffer zones provide to wildlife, but those benefits 
are ancillary to the primary purpose of the buffer zone, which is to 
protect the integrity of the stream. In the preamble to the 1983 
version of the stream buffer zone rule at 30 CFR 816.57 and 817.57, we 
rejected comments suggesting buffer widths other than 100 feet, stating 
that--

    The 100-foot width is used to protect streams from sedimentation 
and help preserve riparian vegetation and aquatic habitats. Since 
the 100-foot zone provides a simple and valuable standard for 
enforcement purposes, OSM has chosen not to change the general rule.

48 FR 30314, June 30, 1983.
    Expanding the stream buffer zone based on the needs of terrestrial 
species has no sound scientific basis for the purpose of the stream 
buffer zone rule, which focuses on protection of water quality and 
aquatic habitats. Furthermore, establishing a buffer zone width based 
on the needs of terrestrial species is not practical because the 
optimal width of the buffer zone for each species varies considerably. 
In addition, as discussed in section III.I.1.a) of the final 
environmental impact statement (FEIS) for this rulemaking, a 100-foot 
buffer zone has considerable value as a connecting corridor for 
terrestrial species. Also, as discussed in section III.I.1 of the FEIS, 
scientific studies generally support the current 100-foot width for 
purposes of sediment control and protection of aquatic ecosystems. 
Other existing rules, including those at 30 CFR 780.16, 784.21, 816.97, 
and 817.97, provide sufficient protection for terrestrial wildlife.
    One commenter stated that section 817.57(a) should apply to 
subsidence resulting from underground mining activities beneath the 
stream. We disagree. In response to litigation concerning the 1983 
version of 30 CFR 817.57, we stipulated that the stream buffer zone 
requirement for underground mines ``is directed only to disturbance of 
surface lands by surface activities associated with underground 
mining.'' In re: Permanent Surface Mining Regulation Litigation II-
Round II, 21 ERC 1725, 1741, footnote 21 (D.D.C. 1984). In addition, 
only one provision of SMCRA prohibits the conduct of underground mining 
operations that could result in the subsidence of streams. That 
provision [section 516(c)] requires the regulatory authority to suspend 
underground coal mining adjacent to ``permanent streams'' if the mining 
activities present an ``imminent danger to inhabitants of the urbanized 
areas, cities, towns, and communities.'' Our regulations at 30 CFR 
817.121(f) clarify that the term ``permanent streams'' means perennial 
streams. Neither section 516(c) of the Act nor 30 CFR 817.121(f) 
mention environmental impacts as a threshold for the prohibition of 
mining.
    Subsidence impacts are regulated under section 516(b)(1) of SMCRA, 
which provides, in relevant part, that the permit must require the 
operator to--

    Adopt measures consistent with known technology in order to 
prevent subsidence causing material damage to the extent 
technologically and economically feasible, maximize mine stability, 
and maintain the value and reasonably foreseeable use of such 
surface lands, except in those instances where the mining technology 
used requires planned subsidence in a predictable and controlled 
manner: Provided, That nothing in this subsection shall be construed 
to prohibit the standard method of room and pillar mining.

    Our definition of ``material damage'' in this context in 30 CFR 
701.5 includes a functional impairment of surface lands or features. 
Perennial and intermittent streams are considered surface features. As 
stated in the preamble to that definition, ``[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.'' 60 FR 16724, March 31, 1995. Therefore, the subsidence 
control plan for the underground mine prepared under section 784.20(b) 
and implemented under section 817.121(a) and (b) must address impacts 
on perennial and intermittent streams and the extent to which the 
operation can be and has been designed to prevent subsidence causing 
material damage to the extent technologically and economically feasible 
(or, for planned subsidence operations, the extent to which the 
operation has been designed to minimize material damage to the extent 
technologically and economically feasible).
4. Paragraph (b)
    Paragraph (b) of the proposed rule provided that the prohibition in 
paragraph (a) on disturbance of the buffer zone did not apply to 
certain activities in waters of the United States. Those activities 
were listed in paragraphs (b)(1) through (b)(4). We have extensively 
revised paragraph (b) in response to comments. First, as discussed in 
Part VII of this preamble, we did not adopt the proposed change in 
scope from perennial and intermittent streams to waters of the United 
States. Second, as discussed above in Part VIII.I.2. of this preamble, 
we have revised the introductory language of paragraph (b) to clarify 
that the buffer requirement of paragraph (a) does not apply to those 
segments of a perennial or intermittent stream for which the regulatory 
authority, in accordance with sections 780.28(d), 784.28(d), 
816.43(b)(1), or 817.43(b)(1), approves one or more of the activities 
listed in paragraphs (b)(1) through (b)(4) of sections 816.57 and 
817.57. There is no need or reason to apply the buffer requirements of 
paragraph (a)(1) to a stream segment that will cease to exist because 
of construction of a stream-channel diversion, excess spoil fill, 
refuse pile, slurry impoundment, or sedimentation pond.\2\ In those 
situations, there is no longer any stream segment to protect. 
Furthermore, construction of those diversions, fills, and impoundments 
inherently requires disturbance of the buffer for the stream segment as 
well as the stream segment itself. With respect to stream crossings

[[Page 75859]]

under paragraph (b)(2), culverts, low-water crossings, and excavations 
for buried pipelines and utilities necessarily disturb the streambed. 
The road, pipeline, conveyor, or other utility will necessarily disturb 
portions of the buffer zone adjacent to the crossing, even when a 
bridge is constructed to avoid directly disturbing the stream itself. 
Third, in addition to removing references to waters of the United 
States, we have modified paragraphs (b)(1) through (b)(4) as explained 
in the following discussion of those paragraphs.
---------------------------------------------------------------------------

    \2\ In Ohio Valley Environmental Council v. U.S. Army Corps of 
Engineers, Civ. Action No. 3:05-0784 (S.D. W. Va., June 13, 2007), 
the district court held that discharges of sediment-laden water from 
the toe of a fill into stream segments leading to a sedimentation 
pond embankment require a permit under section 402 of the Clean 
Water Act. That decision is on appeal to the U.S. Court of Appeals 
for the Fourth Circuit as of the date of writing of this preamble. 
However, we believe this rule, as finalized here, is sufficient to 
accommodate the ultimate outcome of this litigation because the 
issuance of a SMCRA permit does not relieve the permittee of the 
obligation to comply with all requirements of the Clean Water Act. 
See section 702(a) of SMCRA.
---------------------------------------------------------------------------

    As proposed, for informational purposes, paragraphs (b)(1) through 
(b)(4) specify that persons conducting the activities listed in those 
paragraphs must comply with all other applicable requirements of the 
regulatory program. Each of those paragraphs also cross-references some 
of the most directly relevant regulatory program requirements.
Paragraph (b)(1)
    Proposed paragraph (b)(1) applied to mining through waters of the 
United States. It specified that such activities must comply with the 
requirements of section 816.43(b) or 817.43(b) if the mining involves 
the temporary or permanent diversion of a perennial or intermittent 
stream. One commenter suggested that, to avoid creating the 
misapprehension that the stream buffer zone rule could operate to 
prohibit underground mining beneath streams, paragraph (b)(1) of 
section 817.57 should either be eliminated or be revised to refer only 
to the diversion of perennial or intermittent streams rather than to 
mining through streams. In response to this comment, we have revised 
paragraph (b)(1) of both sections 816.57 and 817.57 by deleting the 
reference to mining through waters of the United States and replacing 
it with a reference to diverting perennial or intermittent streams.
    We find the commenter's suggestion compelling with respect to 
underground mining operations, which may require diversion of some 
perennial or intermittent stream segments to facilitate the 
construction of mining-related facilities, but which are unlikely to 
involve mining through those streams. We also find the change in 
terminology appropriate for surface mining operations because, in view 
of our decision not to revise the scope of this rule to include waters 
of the United States, there is no longer any need to refer to mining 
through waters other than perennial or intermittent streams. Sections 
816.43(b) and 817.43(b) effectively require that the permittee divert 
perennial or intermittent streams before mining through them.
    Therefore, we have revised paragraph (b)(1) of sections 816.57 and 
817.57 to refer to diversions of perennial or intermittent streams 
rather than to mining through waters of the United States. As in the 
proposed rule, the final rule contains a reminder that all stream-
channel diversions must comply with sections 816.43(b) and 817.43(b), 
which contain approval, design, and construction requirements specific 
to stream-channel diversions and stream-channel restorations.
Paragraph (b)(2)
    Proposed paragraph (b)(2) applied to the placement of bridge 
abutments, culverts, or other structures in or near waters of the 
United States to facilitate crossing those waters. One commenter 
requested that the rule also apply to stream crossings for utilities, 
pipelines, and conveyors. We intended for this rule to apply to all 
stream crossings, not just those for roads. Therefore, we have revised 
paragraph (b)(2) to apply to the placement of bridge abutments, 
culverts, or other structures in or within 100 feet of a perennial or 
intermittent stream to facilitate the crossing of the stream by roads, 
railroads, conveyors, pipelines, utilities, or similar facilities. As 
applicable, activities under this paragraph must comply with the road 
design, construction, and maintenance requirements of sections 816.150 
and 816.151 or, for railroad spurs, pipelines, utilities, and 
conveyors, with the support facility requirements of section 816.181. 
For underground mining operations, the appropriate cross-references are 
sections 817.150, 817.151, and 817.181, respectively.
    Sections 816.151(d)(6) and 817.151(d)(6) contain standards 
governing the types of structures that primary mine roads may use to 
cross perennial and intermittent streams. Any low-water crossings must 
be designed, constructed, and maintained to prevent erosion of the 
structure or the streambed and additional contributions of suspended 
solids to streamflow. Sections 816.151(c)(2) and 817.151(c)(2) prohibit 
the use of stream fords for primary roads unless they are approved by 
the regulatory authority as temporary routes during road construction. 
All mine access and haul roads, whether primary or not, must comply 
with section 816.150(b) or 817.150(b). Those regulations include 
language similar to the sedimentation control and fish and wildlife 
protection requirements of sections 515(b)(10)(B)(i), 515(b)(24), 
516(b)(9)(B), and 516(b)(11) of SMCRA.
    Also, under our existing regulations, support facilities, which may 
include railroads, pipelines, utilities, and conveyor systems, must 
comply with sections 816.181 and 817.181. Paragraph (b) of sections 
816.181 and 817.181 includes language similar to the sedimentation 
control and fish and wildlife protection requirements of sections 
515(b)(10)(B)(i), 516(b)(9)(B), 515(b)(24), and 516(b)(11) of SMCRA.
Paragraph (b)(3)
    Proposed paragraph (b)(3) applied to the construction of 
sedimentation pond embankments in waters of the United States. One 
commenter requested that this provision be expanded to include the pool 
or storage area for the sedimentation pond. We believe that the 
proposed rule implied the inclusion of those areas because they are an 
unavoidable result of the construction of sedimentation pond 
embankments in perennial or intermittent streams. However, in response 
to this comment, we have revised paragraph (b)(3) to clarify that it 
applies to the construction of sedimentation pond embankments in a 
perennial or intermittent stream and, by extension, to the pool or 
storage area created by the embankment. As proposed, final paragraph 
(b)(3) provides that activities under this paragraph must comply with 
the sediment control requirements of section 816.45(a) or 817.45(a). In 
response to a different comment, we have added a reminder that, under 
sections 816.56 and 817.56, all sedimentation pond embankments must be 
removed and reclaimed before abandoning the permit area or seeking 
final bond release unless the regulatory authority approves retention 
of the pond as a permanent impoundment under section 816.49(b) or 
817.49(b) and provisions have been made for sound future maintenance by 
the permittee or the landowner in accordance with 30 CFR 800.40(c)(2).
    Both the 1979 and 1983 versions of our permanent regulatory program 
regulations prohibit the placement of sedimentation ponds in perennial 
streams unless approved by the regulatory authority. See 30 CFR 
816.46(a)(2) (1979) and 816.46(c)(1)(ii) (1983). However, the preamble 
to the 1979 rules explains that construction of sedimentation ponds in 
streams typically is a necessity in steep-slope mining conditions:

    Sedimentation ponds must be constructed prior to any disturbance 
of the area to be drained into the pond and as near as possible to 
the area to be disturbed. [Citation omitted.] Generally, such 
structures should be located out of perennial streams to facilitate 
the

[[Page 75860]]

clearing, removal and abandonment of the pond. Further, locating 
ponds out of perennial streams avoids the potential that flooding 
will wash away the pond. However, under design conditions, ponds may 
be constructed in perennial streams without harm to public safety or 
the environment. Therefore, the final regulations authorize the 
regulatory authority to approve construction of ponds in perennial 
streams on a site-specific basis to take into account topographic 
factors. [Citation omitted.]
* * * * *
    Commenters suggested allowing construction of sedimentation 
ponds in intermittent and perennial streams. Because of the 
physical, topographic, or geographical constraints in steep slope 
mining areas, the valley floor is often the only possible location 
for a sediment pond. Since the valleys are steep and quite narrow, 
dams must be high and must be continuous across the entire valley in 
order to secure the necessary storage.
* * * * *
    The Office recognizes that mining and other forms of 
construction are presently undertaken in very small perennial 
streams. Many Soil Conservation Service (SCS) [now the Natural 
Resources Conservation Service] structures are also located in 
perennial streams. Accordingly, OSM believes these cases require 
thorough examination. Therefore, the regulations have been modified 
to permit construction of sedimentation ponds in perennial streams 
only with approval by the regulatory authority.

44 FR 15159-60, March 13, 1979.
    In short, sedimentation ponds must be constructed where there is 
sufficient storage capacity, which, in narrow valleys lacking natural 
terraces, typically means in the stream.
    In the preamble to the proposed rule, we stated our belief that our 
existing rules at 30 CFR 816.46(c)(1)(ii) and 817.46(c)(1)(ii) can be 
applied in a manner consistent with a March 1, 2006, letter from 
Benjamin Grumbles, Assistant Administrator of the Environmental 
Protection Agency, to John Paul Woodley, Assistant Secretary of the 
Army (Civil Works).\3\ Among other things, that letter states that the 
sedimentation pond must be constructed as close to the toe of the fill 
as practicable to minimize temporary adverse environmental impacts 
associated with construction and operation of the waste treatment 
system. In particular, 30 CFR 816.46(c)(1)(ii) and 817.46(c)(1)(ii) 
require that all sedimentation ponds be placed as near as possible to 
the disturbed area that they serve. We interpret this provision as 
meaning that sedimentation ponds collecting runoff from excess spoil 
fills must be constructed as close to the toe of the fill as possible. 
We also stated our belief that application of the existing rules in 
this manner will properly implement the intent of Congress in enacting 
SMCRA, as expressed in section 102(f) of the Act, which provides that 
one of the purposes of the Act is to strike a balance between energy 
production and environmental protection. However, we sought comment on 
whether it would be appropriate or helpful to revise those rules by 
replacing the term ``perennial streams'' with ``waters of the United 
States'' or whether we should more clearly specify the conditions under 
which the regulatory authority may approve placement of sedimentation 
ponds in perennial streams or other waters of the United States.
---------------------------------------------------------------------------

    \3\ In Ohio Valley Environmental Council v. U.S. Army Corps of 
Engineers, Civ. Action No. 3:05-0784 (S.D. W. Va., June 13, 2007), 
the district court held that discharges of sediment-laden water from 
the toe of a fill into a stream segments leading to a sedimentation 
pond embankment requires a permit under section 402 of the Clean 
Water Act. That decision is on appeal to the U.S. Court of Appeals 
for the Fourth Circuit as of the date of writing of this preamble. 
However, we believe this rule, as finalized here, is sufficient to 
accommodate the ultimate outcome of this litigation because the 
issuance of a SMCRA permit does not relieve the permittee of the 
obligation to comply with all requirements of the Clean Water Act. 
See section 702(a) of SMCRA.
---------------------------------------------------------------------------

    We received one comment recommending that we take both actions. The 
comment advocating replacement of ``perennial streams'' with ``waters 
of the United States'' is moot in light of our decision, as explained 
in Part VII of this preamble, not to adopt the term ``waters of the 
United States'' as a replacement for perennial and intermittent 
streams. With respect to the second part of the comment, the commenter 
provided no suggestions on what specifications we should adopt. 
Therefore, we are not making any changes in response to this comment.
Paragraph (b)(4)
    Proposed paragraph (b)(4) applied to the construction of excess 
spoil fills and coal mine waste disposal facilities in waters of the 
United States. The final rule is identical to the proposed rule with 
the exception that we have replaced ``waters of the United States'' 
with ``a perennial or intermittent stream'' for reasons discussed in 
Part VII of this preamble. As proposed and adopted, paragraph (b)(4) 
also provides a reminder that excess spoil fills must comply with the 
requirements of paragraphs (a) and (f) of section 816.71or 817.71. It 
also provides a reminder that coal mine waste disposal facilities must 
comply with the pertinent requirements of sections 816.81(a), 
816.83(a), and 816.84, or, for underground mining operations, sections 
817.81(a), 817.83(a), and 817.84, respectively.
    As discussed in Parts VIII.B., VIII.D., and VIII.E. of this 
preamble, we are extensively revising our rules governing the disposal 
of excess spoil and coal mine waste. In both cases, we are adding 
provisions designed to ensure use of the best technology currently 
available, to the extent possible, to minimize the adverse impacts on 
fish, wildlife, and related environmental values that may result from 
construction of excess spoil and coal mine waste disposal facilities. 
See sections 780.25(d)(1), 780.35(a)(3), 784.16(d)(1), and 
784.19(a)(3). In addition, we are adding paragraphs (a)(1) and (a)(2) 
of sections 780.35 and 784.19 to require that operations be designed to 
minimize the creation of excess spoil and to ensure that fills are no 
larger than necessary to accommodate the anticipated volume of excess 
spoil.
Other Comments Received on Proposed Paragraph (b)
    The preamble to the proposed rule stated that we intended that the 
list of activities in paragraph (b) would include the universe of 
activities that inherently involve placement of fill material into 
waters of the United States as part of surface coal mining and 
reclamation operations. We invited comment on whether the list met that 
goal and, if not, how any other activities that involve placement of 
fill material into waters of the United States as part of surface coal 
mining and reclamation operations should be regulated under SMCRA with 
respect to this rule.
    The few commenters who responded to this request expressed concern 
that the list was not all-inclusive. They recommended that it be 
revised to universally include all activities that are planned and 
approved to occur in the stream. We have not adopted this 
recommendation. We believe that the activities that we list in 
paragraphs (b)(1) through (b)(4) include all situations in which it may 
be inherently necessary to conduct activities in a stream segment to 
facilitate surface coal mining and reclamation operations. To the 
extent that a SMCRA permittee or permit applicant may receive 
authorization under the Clean Water Act to place fill material in a 
stream as part of an activity other than those listed in paragraphs 
(b)(1) through (b)(4), we will consider that approval and its 
implications when reviewing a SMCRA permit application. However, 
surface activities conducted in the buffer zone of a stream segment are 
subject to the stream buffer zone rule regardless of

[[Page 75861]]

whether that segment is also subject to a Clean Water Act 
authorization.
    One commenter recommended that we add a list of other activities to 
paragraph (b). Our responses to the suggested additions are set forth 
below:
     Pool or storage area for sedimentation ponds and 
impoundments
    As discussed above, we have added a sentence to paragraph (b)(3) to 
clarify that the provisions of that paragraph extend to the pool or 
storage area created by the construction of a sedimentation pond 
embankment in a perennial or intermittent stream.
     Stream reaches between the toe of an excess spoil fill, 
refuse pile, or slurry impoundment and the sediment or drainage control 
structure for that fill, refuse pile, or impoundment
    Historically, we and the state regulatory authorities have 
considered stream reaches of this nature to be part of the mining 
operation and included them within the permit area because they no 
longer function as a stream, but as a channel directing runoff from the 
face of the fill, refuse pile, or slurry pond embankment to the 
sediment pond for that structure. Our approach is consistent with the 
historical practice of Clean Water Act permitting authorities, which 
have issued NPDES permits for discharges from sediment ponds located in 
a perennial or intermittent stream. Inherent in that practice is the 
assumption that flows in the stream segment between the toe of the fill 
and the sediment pond embankment are not considered to be waters of the 
United States. EPA and the Corps have adopted policies classifying the 
stream segment between the toe of the fill or impounding structure and 
the sediment pond to be to be a channel conveying industrial waste 
water from the mining operation to a treatment facility before 
discharge into waters of the United States.\4\ These waste treatment 
systems are designed to assure that the water flowing from the sediment 
pond into waters of the United States will meet effluent limitations.
---------------------------------------------------------------------------

    \4\ See, e.g., a letter dated March 1, 2006, from Benjamin 
Grumbles, Assistant Administrator of the Environmental Protection 
Agency, to John Paul Woodley, Assistant Secretary of the Army (Civil 
Works), which states that, for surface coal mining operations in the 
Appalachian Mountain states, the stream segment between the toe of 
the fill and the sedimentation pond will be considered part of the 
waste treatment system, not waters of the United States, for 
purposes of the Clean Water Act. The sedimentation pond must be 
constructed as close to the toe of the fill as practicable to 
minimize temporary adverse environmental impacts associated with 
construction and operation of the waste treatment system. The letter 
notes that, as a condition of approval, the Corps also requires that 
the stream segment be restored as soon as the mining operation is 
completed and the pond is no longer needed for treatment purposes. 
At that time, the stream segment will once again be classified as 
waters of the United States. Therefore, based on this provision of 
the letter, it may be prudent for the permittee to maintain an 
undisturbed buffer for the affected stream segment to the extent 
possible.
---------------------------------------------------------------------------

    However, in 2007, the U.S. District Court for the Southern District 
of West Virginia held that these stream segments are in fact waters of 
the United States, that sediment washing off the face of the fill does 
not qualify as fill material, and that the discharge of pollutants such 
as sediment into the stream segments between the toe of the fill and 
the sedimentation pond embankment is impermissible unless the discharge 
is authorized in a permit issued under section 402 of the Clean Water 
Act. See Ohio Valley Environmental Council v. U.S. Army Corps of 
Engineers, Civ. Action No. 3:05-0784 (S.D. W. Va., June 13, 2007). That 
decision is on appeal to the U.S. Court of Appeals for the Fourth 
Circuit as of the date of writing of this preamble. Regardless of the 
outcome of that litigation, we see no need to revise our rules in 
response to the commenter's concern. We recognize that the litigation 
has the potential to affect the implementation of sediment control for 
excess spoil fills, the extent to which sediment ponds continue to be 
constructed in intermittent or perennial streams below fills and 
impounding structures, and the classification of stream segments 
between the toe of the fill and the sediment pond embankment. However, 
we believe this rule, as finalized here, is sufficiently flexible to 
accommodate any shift in implementation of the Clean Water Act. As 
stated in paragraph (f)(2) of sections 780.28 and 784.28 and paragraph 
(d) of sections 816.57 and 817.57, issuance of a SMCRA permit does not 
relieve the permittee of the obligation to comply with all requirements 
of the Clean Water Act.
     Erosion protection zones
    These features, which are primarily the result of recent changes in 
West Virginia regulations (see West Virginia Code of State Regulations 
38-2-14.14.g.2.) and are intended to promote fill stability, are 
considered part of the fill. No rule change is needed.
     Diversions
    With the exception of stream-channel diversions, which are already 
included in paragraph (b)(1), the construction of diversions generally 
does not involve placement of fill material in a perennial or 
intermittent stream or other direct disturbance of the stream. 
Therefore; we see no reason to add them to the list of activities in 
paragraph (b).
     Stream crossings involving roads, conveyors, pipelines, or 
power lines
    We have revised paragraph (b)(2) to clarify that it applies to the 
placement of bridge abutments, culverts, or other structures in or 
within 100 feet of a perennial or intermittent stream to facilitate the 
crossing of the stream by roads, railroads, conveyors, pipelines, 
utilities, or similar facilities.
     Ephemeral streams and isolated waters of the United States
    These features are not subject to the stream buffer zone rule, 
which applies only to perennial and intermittent streams. However, 
their exclusion from the stream buffer zone rule does not mean that 
they need not be considered during the SMCRA permitting process. In 
some cases, the provisions of sections 816.97(f) and 817.97(f) 
concerning wetlands and habitats of unusually high value for fish and 
wildlife may apply.
     Activities listed in 33 CFR 323.4 for which no permit is 
required under section 404 of the Clean Water Act
    The fact that certain activities do not require a permit for 
purposes of section 404 of the Clean Water Act is not sufficient 
justification for excluding those activities from the requirement to 
maintain an undisturbed buffer between surface activities and perennial 
and intermittent streams for purposes of regulation under SMCRA.
5. Paragraph (c)
    As proposed, paragraph (c) of sections 816.57 and 817.57 would have 
provided that activities exempt from the prohibition on disturbance of 
the surface of lands within 100 feet of waters of the United States 
must comply with paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of 
the Act (or, for underground mining operations, paragraphs (b)(9)(B) 
and (b)(11) of section 516 of the Act) and the regulations implementing 
those provisions of the Act. However, the referenced statutory 
provisions and regulations apply to all surface coal mining and 
reclamation operations, not just to those described in the proposed 
rule. Therefore, as adopted in the final rule, paragraph (c) applies to 
all activities conducted either in perennial or intermittent streams or 
within 100 feet of those streams.
    Paragraphs (c)(1) through (c)(4) of the final rule reference and 
describe the OSM regulations, other than the stream buffer zone rules, 
that most directly relate to implementation of sections 
515(b)(10)(B)(i) and (b)(24) and 516(b)(9)(B) and (b)(11) of SMCRA. 
Those regulations include the requirement in 30 CFR 816.41(d)(1) and 
817.41(d)(1) that activities be conducted

[[Page 75862]]

according to the plan approved under 30 CFR 780.21(h) or 784.14(g) and 
that earth materials, groundwater discharges, and runoff be handled in 
a manner that prevents, to the extent possible using the best 
technology currently available, additional contributions of suspended 
solids to streamflow outside the permit area; and otherwise prevents 
water pollution. They also include the requirement in 30 CFR 816.45(a) 
and 817.45(a) that appropriate sediment control measures be designed, 
constructed, and maintained using the best technology currently 
available to prevent, to the extent possible, additional contributions 
of sediment to streamflow or to runoff outside the permit area. And 
they include the requirement in 30 CFR 816.97(a) and 817.97(a) that the 
operator must, to the extent possible using the best technology 
currently available, minimize disturbances and adverse impacts on fish 
and wildlife and related environmental values and achieve enhancement 
of those resources where practicable. In the final rule, we are adding 
paragraph (c)(4) to incorporate a reference to 30 CFR 816.97(f) and 
817.97(f). Those rules require that the operator avoid disturbances to, 
enhance where practicable, restore, or replace wetlands, habitats of 
unusually high value for fish and wildlife, and riparian vegetation 
bordering rivers, streams, lakes, and ponds.
    Paragraph (c) does not impose any new requirements. Instead, it 
reiterates that the referenced rules apply to all surface coal mining 
and reclamation operations, including those activities that occur in or 
within 100 feet of a perennial or intermittent stream under paragraph 
(b) of sections 816.57 and 817.57.
6. Proposed Paragraph (d)
    Proposed paragraph (d) of sections 816.57 and 817.57 provided that 
the permittee may not initiate any activities under paragraph (b) until 
the permittee obtains all necessary certifications and authorizations 
under sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 
1341, 1342, and 1344. The preamble to the proposed rule stated that we 
considered that provision informational. We requested comment on 
whether the provision should remain informational or whether we should 
revise our rules to require its inclusion as a SMCRA permit condition, 
which would mean that the prohibition on initiation of activities 
before obtaining all necessary Clean Water Act authorizations and 
certifications would be independently enforceable under SMCRA. See 72 
FR 48910, August 24, 2007.
    Commenters were divided on this issue. The U.S. Fish and Wildlife 
Service and the Geologic and Water Resources Divisions of the National 
Park Service supported adoption of a rule requiring a permit condition 
under SMCRA. The EPA also supported adoption of a requirement for a 
permit condition under SMCRA, stating that such a requirement would 
enhance compliance with Clean Water Act requirements. One state 
regulatory authority opposed adoption of a requirement for a permit 
condition; the commenter instead recommended that coordination of 
permitting and enforcement of Clean Water Act requirements be left to 
the states and the Corps. Comments from the mining industry strongly 
opposed adoption of a rule that would impose a permit condition under 
SMCRA, expressing the fear that it would only result in more 
duplication and confusion in regulation of the coal mining industry. 
One commenter stated that, if the permittee needs to comply with the 
Clean Water Act, then the requirements of that statute should be 
enforced according to the statutory scheme specified in the Clean Water 
Act.
    After reviewing the comments, we have decided not to adopt proposed 
paragraph (d). Instead, we are adopting new paragraph (a)(2), which 
provides that surface activities, including those activities identified 
in paragraphs (b)(1) through (b)(4) of sections 816.57 and 817.57, may 
be authorized in perennial or intermittent streams only where those 
activities would not cause or contribute to the violation of applicable 
State or Federal water quality standards developed pursuant to the 
Clean Water Act, as determined through certification under section 401 
of the Clean Water Act or a permit under section 402 or 404 of the 
Clean Water Act. We are also adopting a new paragraph (d)(2) of 
sections 780.28 and 784.28. That paragraph provides that before 
approving a permit application in which the applicant proposes to 
conduct surface activities in a perennial or intermittent stream, the 
regulatory authority must include a permit condition requiring a 
demonstration of compliance with the Clean Water Act in the manner 
specified in paragraph (a)(2) of sections 816.57 and 817.57 before the 
permittee may conduct those activities. This requirement applies to the 
extent that the activities require authorization or certification under 
the Clean Water Act.
    However, in adopting these rules, we reiterate that nothing in 
SMCRA provides the SMCRA regulatory authority with jurisdiction over 
the Clean Water Act or the authority to determine when a permit or 
authorization is required under the Clean Water Act. Under paragraphs 
(a) and (a)(2) of section 702 of SMCRA, nothing in SMCRA (and, by 
extension, regulations adopted under SMCRA) may be construed as 
superseding, amending, modifying, or repealing the Clean Water Act or 
any state laws or state or federal rules adopted under the Clean Water 
Act. In addition, nothing in the Clean Water Act vests SMCRA regulatory 
authorities with the authority to enforce compliance with the 
permitting and certification requirements of that law.

J. Sections 816.71 and 817.71 General Requirements for Disposal of 
Excess Spoil

    As proposed, we have added a new paragraph (a)(4) to sections 
816.71 and 817.71 to implement, in part, the requirements of sections 
515(b)(24) and 516(b)(11) of the Act. Sections 515(b)(24) and 
516(b)(11) require that surface coal mining and reclamation operations 
be conducted to ``minimize disturbances and adverse impacts of the 
operation on fish, wildlife, and related environmental values'' ``to 
the extent possible using the best technology currently available.''
    The new paragraph requires that excess spoil be placed in 
designated disposal areas within the permit area in a controlled manner 
to minimize disturbances to and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible using the best 
technology currently available.
    As previously discussed in Parts VIII.D. and VIII.E. of this 
preamble, we have moved paragraphs (b)(1) (design certification), (c) 
(location), and (d)(1) (foundation investigations) of the former 
version of sections 816.71 and 817.71 to sections 780.35 and 784.19 as 
part of our effort to place provisions that are solely design 
considerations and requirements in our permitting regulations rather 
than in the performance standards.
    As proposed, in this final rule we are deleting the last sentence 
of paragraph (d)(2) of the former version of sections 816.71 and 
817.71. That sentence required a stability analysis for rock toe 
buttresses and keyway cuts. We have deleted it because it duplicates 
requirements included in sections 780.35 and 784.19. Final paragraph 
(d) of sections 816.71 and 817.71 retains the requirement that keyway 
cuts or rock-toe buttresses be constructed to ensure fill stability 
when the slope in the disposal area exceeds either 2.8h:1v (36

[[Page 75863]]

percent) or any lesser slope designated by the regulatory authority 
based on local conditions.
    As proposed, this final rule redesignates former paragraph (b)(2) 
of sections 816.71 and 817.71 as paragraph (b) of those sections. It 
revises that paragraph to require that the fill not only be designed to 
attain a minimum static safety factor of 1.5 as required by the former 
version of these rules, but that the fill actually be constructed to 
attain that safety factor. This change is consistent with section 
515(b)(22)(A) of the Act, which requires that all excess spoil be 
placed in a way that ensures mass stability and prevents mass movement.
    Consistent with the proposed rule, we are adding a new paragraph 
(c) to sections 816.71 and 817.71 to require that the permittee 
construct the fill in accordance with the design and plans submitted 
under section 780.35 or 784.19 and approved as part of the permit. This 
provision emphasizes that fills must be built on the sites selected 
under section 780.35 or 784.19 in a manner consistent with the designs 
submitted under those sections and approved as part of the permit. It 
is a companion to the new provisions concerning environmental 
protection and excess spoil minimization that we have added to sections 
780.35 and 784.19.
    Finally, as proposed, we are removing former section 817.71(k), 
which provided that spoil resulting from face-up operations for 
underground coal mine development may be placed at drift entries as 
part of a cut-and-fill structure if that structure is less than 400 
feet in length and is designed in accordance with section 817.71. We 
removed this paragraph because spoil excavated as part of face-up 
operations and used to construct a mine bench is not excess spoil. As 
defined in 30 CFR 701.5, excess spoil consists of spoil material 
disposed of in a location outside the mined-out area, but it does not 
include spoil needed to achieve restoration of the approximate original 
contour. In most cases, spoil used to construct the bench for an 
underground mine will later be used to reclaim the face-up area when 
the underground mine is finished. That is, the bench will be regraded 
to cover the mine entry and eliminate any highwall once mining is 
completed and the bench is no longer needed for mine offices, parking 
lots, equipment storage, conveyor belts, and other mining-related 
purposes. Consequently, this paragraph of the regulations does not 
belong in a section devoted to disposal of excess spoil.
    We are not moving the requirements of section 817.71(k) to another 
part of our rules because we do not find it necessary to impose the 
design requirements for excess spoil fills (which are permanent 
structures) on temporary spoil storage structures and support 
facilities, such as the benches to which section 817.71(k) applies. Nor 
do we find it necessary or appropriate to limit those benches to 400 
feet in length. Bench length and configuration are more appropriately 
determined by operational, topographic, geologic, and other site-
specific considerations. However, the regulatory authority has the 
right to impose design and construction requirements on a case-by-case 
basis when it determines that those requirements are a necessary 
prerequisite to making the permit application approval findings 
specified in 30 CFR 773.15.
    In the preamble to the proposed rule, we sought comment on (1) 
whether this approach is adequate to accomplish the purposes and 
requirements of SMCRA, (2) whether we should codify the sentence 
concerning the right of the regulatory authority to impose 
requirements, or (3) whether more specific rules are needed or 
appropriate. We received no comments in response to this request.
    We also received no comments on any of the proposed changes to 
sections 816.71 and 817.71.

K. What does the phrase ``to the extent possible'' mean in these rules?

    Sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) 
of SMCRA include the proviso that the requirements of those sections 
apply ``to the extent possible.'' Some of the rules that we are 
adopting today include similar language because they are based upon 
those provisions of the Act. Given the wide array of circumstances to 
which these requirements apply and the paucity of legislative history, 
we did not propose and are not adopting a definition of the phrase ``to 
the extent possible'' as part of this rulemaking. Instead, we and the 
State regulatory authorities will continue to determine the meaning of 
that phrase on a case-by-case basis in a manner consistent with section 
102(f) of SMCRA. That section of the Act provides that one of the 
purposes of SMCRA is to ``assure that the coal supply essential to the 
Nation's energy requirements and to its economic and social well-being 
is provided and strike a balance between protection of the environment 
and agricultural productivity and the Nation's need for coal as an 
essential source of energy.'' One comment from a State regulatory 
authority supported this approach.
    In addition, section 515(b)(1) of SMCRA requires that surface coal 
mining operations be conducted ``so as to maximize the utilization and 
conservation of the solid fuel resource being recovered so that 
reaffecting the land in the future through surface coal mining can be 
minimized.'' We believe that the ``to the extent possible'' clause in 
paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of SMCRA is 
properly interpreted in part by applying the environmental protection 
requirements of those paragraphs so as to give full force and effect to 
the coal recovery performance standard in section 515(b)(1), as 
reflected in the regulations at 30 CFR 816.59 and 817.59.
    As adopted in this final rule, sections 780.25(d)(1), 780.35(a)(3), 
780.16(d)(1), and 784.19(a)(3) require that permit applicants conduct 
an analysis of alternatives for excess spoil fills and coal mine waste 
disposal structures if those fills and structures involve the placement 
of excess spoil or coal mine waste in or within 100 feet of a perennial 
or intermittent stream. Those rules provide that, when evaluating all 
reasonably possible alternatives, permit applicants must select the 
alternative that would have the least overall adverse environmental 
impact. The final rules specify that an alternative is reasonably 
possible if it conforms to the safety, engineering, design, and 
construction requirements of the regulatory program; is capable of 
being done after consideration of cost, logistics, and available 
technology; and is consistent with the coal recovery provisions of 
section 816.59 or 817.59. In other words, nothing in the rule should be 
construed as elevating environmental concerns over safety 
considerations, as prohibiting the conduct of surface coal mining 
operations that are not otherwise prohibited under SMCRA or other laws 
or regulations, or as requiring consideration of unreasonably expensive 
or technologically infeasible alternatives.
    The portion of our rules that refers to ``consideration of cost, 
logistics, and available technology'' is derived from the EPA 
regulations at 40 CFR 230.10(a)(2), which define a practicable 
alternative for purposes of section 404 of the Clean Water Act. In 
interpreting this provision, the EPA/COE memorandum entitled 
``Appropriate Level of Analysis Required for Evaluating Compliance with 
the Section 404(b)(1) Guidelines Alternatives Requirements'' states 
that ``[t]he determination of what constitutes an

[[Page 75864]]

unreasonable expense should generally consider whether the projected 
cost is substantially greater than the costs normally associated with 
this particular type of project.'' We have included similar language in 
paragraph (d)(1)(ii)(B) of sections 780.25 and 784.16 and paragraph 
(a)(3)(ii)(B) of sections 780.35 and 784.19 because (1) the concept of 
a practicable alternative for purposes of section 404 of the Clean 
Water Act is in some ways analogous to the determination of reasonably 
possible alternatives under this rule, and (2) the principle is 
consistent with the phrase ``to the extent possible'' in sections 
515(b)(24) and 516(b)(11) of SMCRA. On the other hand, the fact that 
one alternative may cost somewhat more than a different alternative 
does not necessarily warrant exclusion of the more costly alternative 
from consideration. See Part VI.D. of this preamble for a more 
extensive discussion of the rationale for our use of the term 
``reasonably possible'' and its consistency with statutory provisions.
    On January 7, 2004 (69 FR 1036, 1047), we proposed to adopt the 
phrase ``to the maximum extent possible'' as part of 30 CFR 
780.18(b)(3). Several commenters suggested that we replace ``possible'' 
with ``practicable'' or ``technologically and economically feasible.'' 
Other commenters stated that the proposed language was too vague, but 
they did not provide suggested replacement language.
    In developing the proposed rule that we published on August 24, 
2007, we decided not to propose any of the suggestions that commenters 
submitted on the 2004 proposed rule. The replacement language suggested 
by several commenters is no less vague or more specific than the 
statutory phrase ``to the extent possible.'' Nevertheless, we again 
solicited suggestions on how we could define the phrase ``to the extent 
possible.'' We received no suggestions.
    We also sought comment on whether we should incorporate 40 CFR 
230.70 through 230.75 (part of the 404(b)(1) Guidelines) as part of our 
rules to provide guidance in interpreting ``to the extent possible.'' 
We received one comment supporting incorporation and several comments 
opposing that action. One commenter pointed out the practical and legal 
problems and difficulties in having the SMCRA regulatory authority 
interpret and enforce Clean Water Act requirements. In view of those 
problems, and the fact that our review indicates that 40 CFR 230.70 
through 230.75 would have relatively little relevance to surface coal 
mining and reclamation operations, we have decided not to incorporate 
those provisions as part of our regulations.

L. What does the phrase ``best technology currently available'' mean in 
these rules?

    Our definition of ``best technology currently available'' at 30 CFR 
701.5 embraces a wide range of activities, including those that may not 
be in routine use, if the regulatory authority determines they are 
currently available and will work. As such, it is sufficiently flexible 
to include new techniques developed over time that were not 
contemplated or in use at the time the definition was promulgated. 
Similarly, it is sufficiently flexible to include techniques that are 
not contemplated or in use today. Consequently, we cannot state with 
specificity what measures would constitute the best technology 
currently available in all situations.
    Our regulations at 30 CFR 816.45 and 817.45 address sediment 
control measures and requirements for all surface coal mining and 
reclamation operations. Paragraph (a)(1) of those sections reiterates 
the requirements of sections 515(b)(10)(B)(i) and 516(b)(9)(B) of SMCRA 
concerning prevention of additional contributions of suspended solids 
to streamflow or runoff outside the permit area. Paragraph (b) of those 
rules lists various measures that may be employed to accomplish the 
sediment control requirements of paragraph (a).
    At one time, paragraph (b)(2) of 30 CFR 816.46 and 817.46 
prescribed siltation structures (sedimentation ponds and other 
treatment facilities with point-source discharges) as the best 
technology currently available for sediment control. However, that 
paragraph was struck down upon judicial review because the court found 
that we did not articulate a sufficient basis for the rule under the 
Administrative Procedure Act. In particular, the court held that the 
preamble to the rulemaking did not adequately discuss the benefits and 
drawbacks of siltation structures and alternative sediment control 
methods and did not enable the court ``to discern the path taken by 
[the Secretary] in responding to commenters' concerns'' that siltation 
structures in the West are not the best technology currently available. 
See In re: Permanent Surface Mining Regulation Litigation II, Round 
III, 620 F. Supp. 1519, 1566-1568 (D.D.C. July 15, 1985). On November 
20, 1986 (51 FR 41961), we suspended the regulations that the court 
struck down. Therefore, those regulations are no longer dispositive in 
determining the best technology currently available. To avoid confusion 
on the part of readers of the Code of Federal regulations, we are 
removing paragraph (b)(2) of sections 816.46 and 817.46 as part of this 
rulemaking.
    On November 13, 1990 (55 FR 47430-47435), we proposed to revise 30 
CFR 816.45, 817.45, 816.46(b)(2), and 817.46(b)(2) to reestablish 
siltation structures as the best technology currently available for 
sediment control on surface coal mining and reclamation operations in 
areas receiving more than 26 inches of average annual precipitation. 
Regulatory authorities in areas with less than that amount of 
precipitation would have been able to specify alternative sediment 
control measures as the best technology currently available through the 
program amendment process. Most commenters opposed that approach and we 
never adopted the proposed rule, in part because it could have 
inhibited the development and implementation of new and innovative 
practices to control sediment. We decided that the regulatory authority 
should retain the discretion to determine what sediment control 
practices constitute the best technology currently available.
    In addition to the sediment control regulations at 30 CFR 816.45 
and 817.45 and the definition of ``best technology currently 
available'' in 30 CFR 701.5 discussed above, the legislative history of 
section 515(b)(15)(B)(i) of SMCRA provides some guidance as to what 
measures Congress considered to be the best technology currently 
available at that time to control sedimentation from minesites:

    Similarly, technology exists to prevent increased sediment loads 
resulting from mining from reaching streams outside the permit area. 
Sediment or siltation control systems are generally designed on a 
mine-by-mine basis which could involve several drainage areas or on 
a small-drainage-area basis which may serve several mines. There are 
a number of different measures that when applied singly or in 
combination can remove virtually all sediment or silt resulting from 
the mining operation. A range of individual siltation control 
measures includes: erosion and sediment control structures, chemical 
soil stabilizers, mulches, mulch blankets, and special control 
practices such as adjusting the timing and sequencing of earth 
movement, pumping drainage, and establishing vegetative filter 
strips.

H.R. Rep. No. 95-218 at 114 (April 22, 1977).
    Furthermore, in Directive TSR-3, ``Sediment Control Using the Best 
Technology Currently Available,'' dated November 2, 1987, we state that 
we anticipate ``that in most cases sedimentation ponds or some other 
siltation structure will be BTCA [the

[[Page 75865]]

best technology currently available]'' for sedimentation control. 
Finally, the preamble to the 1990 proposed rule lists numerous 
literature resources concerning the best technology currently available 
for sedimentation control. See the footnotes at 55 FR 47431-47433, 
November 13, 1990. The preamble notes that ``[t]he effectiveness of 
specific practices may be restricted to specific areas and be dependent 
upon variables such as geomorphology, hydrology, climate and 
engineering design.'' Id. at 47342, col. 1.
    In addition, the outcome of Ohio Valley Environmental Council v. 
U.S. Army Corps of Engineers, Civ. Action No. 3:05-0784 (S.D. W. Va., 
June 13, 2007), may affect what we consider to be the best technology 
currently available for sediment control below fills and impounding 
structures. The district court held that the stream segment between the 
toe of the fill or impounding structure and the sediment pond 
embankment must be considered waters of the United States rather than 
part of a waste treatment system designed to remove sediment prior to 
discharge into waters of the United States below the sediment pond. 
That decision is on appeal to the U.S. Court of Appeals for the Fourth 
Circuit as of the date of writing of this preamble.
    As previously noted, SMCRA does not limit use of the term ``best 
technology currently available'' to the sediment control requirements 
of sections 515(b)(10)(B)(i) and 516(b)(9)(B). Sections 515(b)(24) and 
516(b)(11) of SMCRA also require use of the best technology currently 
available to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible. 
Sections 515(b)(24) and 516(b)(11) are primarily implemented by the 
fish and wildlife protection performance standards at 30 CFR 816.97 and 
817.97. Like the other regulations discussed in this part of the 
preamble, those performance standards and the related permitting 
requirements at 30 CFR 780.16 and 784.21 apply to all aspects of 
surface coal mining and reclamation operations, including those 
activities that are conducted in perennial and intermittent streams and 
activities that occur on the surface of lands within 100 feet of 
perennial or intermittent streams.
    The preamble to 30 CFR 816.97(a) and 817.97(a) states that those 
rules ``allow an operator to consult any technical authorities on 
conservation methods to assure their compliance with the statutory 
requirement for use of the best technology currently available.'' 48 FR 
30317, June 30, 1983. We anticipate that state and federal fish and 
wildlife, land management, and conservation agencies will be a useful 
resource in assisting the permittee and the regulatory authority in 
determining the best technology currently available under 30 CFR 
780.16, 784.21, 816.97(a), and 817.97(a). For example, the Bureau of 
Land Management within the U.S. Department of the Interior has 
developed best management practices relating to stream crossings (see 
http://www.blm.gov/wo/st/en/prog/energy/oil_and_gas/best_management_practices/technical_information.html) and the Utah 
Division of Oil, Gas and Mining has published ``The Practical Guide to 
Reclamation in Utah'' (see https://fs.ogm.utah.gov/PUB/MINES/Coal_Related/RecMan/Reclamation_Manual.pdf). Chapter 2 of the latter 
document discusses stream restoration and streambank bioengineering.
    In some cases, the best technology currently available may consist 
primarily of minimizing the amount of land and waters affected. We 
anticipate that the analysis of alternatives and site selection 
requirements that we are adopting as part of the permitting 
requirements for disposal of coal mine waste and excess spoil in 
sections 780.25(d)(1), 784.16(d)(1), 780.35(a)(3), and 784.19(a)(3) 
would be the primary means of demonstrating use of the best technology 
currently available for those activities. The excess spoil minimization 
and fill design and construction requirements of paragraphs (a)(1) and 
(a)(2) of sections 780.35 and 784.19 are also significant. In addition, 
construction methodology and mining and reclamation techniques may play 
a role.

IX. Procedural Matters and Required Determinations

A. Executive Order 12866--Regulatory Planning and Review

    This rule is considered a ``significant regulatory action'' under 
Executive Order 12866 and is subject to review by the Office of 
Management and Budget (OMB) because it may raise novel legal or policy 
issues, as discussed in the preamble.
    With respect to other determinations required under Executive Order 
12866--
    a. This rule will not have an annual effect of $100 million or more 
on the economy. As discussed in the final environmental impact 
statement and, to a lesser extent, this preamble, it will not adversely 
affect in a material way the economy, productivity, competition, jobs, 
the environment, public health or safety, or state, local, or tribal 
governments or communities.
    b. This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    c. This rule will not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    With respect to the assessment required by section 6(a)(3)(B)(ii) 
of the executive order, the preamble discusses how the regulatory 
action is consistent with the statutory mandate in sections 515(b) and 
516(b) of SMCRA to prevent, to the extent possible using the best 
technology currently available, additional contributions of suspended 
solids to streamflow or runoff outside the permit area and to minimize, 
to the extent possible using the best technology currently available, 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values. To the extent permitted by law, the regulatory 
action also promotes the President's priorities, including energy 
production, and avoids undue interference with state, local, and tribal 
governments in the exercise of their governmental functions. See Parts 
IX.B. and IX.G. of this preamble.
    We anticipate that the principal benefits of this rule will be (1) 
minimization of the adverse environmental impacts stemming from the 
construction of excess spoil fills and coal mine waste impoundments and 
fills and (2) clarification of the circumstances in which the 
prohibition in the stream buffer zone rule applies. As discussed in the 
final environmental impact statement, we cannot quantify these 
benefits.
    The revisions are not expected to have an adverse economic impact 
on states and Indian tribes or the regulated industry, although some of 
the regulatory changes will result in an increase in the costs and 
burdens placed on coal operators and state regulatory authorities. 
Based on surveys conducted to prepare the supporting statements for 
this rule under the Paperwork Reduction Act, we estimate that the total 
annual cost increase for operators will be approximately $240,500, 
while the total annual cost increase for state regulatory authorities 
will be approximately $24,200. These increases are a result of the 
requirement to prepare and document the plans, analyses and findings 
required by the revised rules. The cost increases will principally 
affect those coal operators and states (Kentucky, Virginia, and West 
Virginia) located in the steep-slope terrain of the central Appalachian

[[Page 75866]]

coalfields, where the bulk of excess spoil is generated. Because all 
regulatory authorities in the Appalachian coalfields have implemented 
policies to minimize the volume of excess spoil disposed of outside the 
mined-out area, and because many operators already conduct alternative 
analyses to satisfy requirements under section 404 of the Clean Water 
Act, we expect no significant additional costs of implementing these 
regulatory changes. There may be other minor increases in costs 
associated with the new permitting requirements, in particular the 
alternatives analysis required for the disposal of excess spoil and 
coal mine waste in or near perennial and intermittent streams.

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

    This rule is not considered a significant energy action under 
Executive Order 13211. The revisions contained in this rule will not 
have a significant effect on the supply, distribution, or use of 
energy.

C. Regulatory Flexibility Act

    The Department of the Interior certifies 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 revisions are expected to have only minimal adverse economic impact 
on the regulated industry, including small entities. Further, the rule 
will produce no adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States enterprises 
to compete with foreign-based enterprises in domestic or export 
markets. This determination is based upon the following analysis:
Baseline of Small Coal Mining Entities
    The Small Business Administration (SBA) uses the North American 
Industry Classification System Codes (NAICS) to establish size 
standards for small businesses in the coal mining industry. The NAICS 
classification for the coal mining industry is code 2121. Subsets of 
this sector include Bituminous Coal and Lignite Surface Mining (code 
212111), Bituminous Coal Underground Mining (code 212112), and 
Anthracite Mining (code 212113).
    The size standard established for each of these categories is 500 
or fewer employees for each business concern and associated affiliates. 
SBA considers business concerns to be affiliates when one concern 
``controls or has the power to control the other, or a third party or 
parties controls or has the power to control both.''
    The U.S. Census Bureau maintains statistics related to business 
employment, payroll and employment size categories for each NAICS 
description. Census Bureau data for 2005 show a total of 735 coal-
mining firms employing a total of 74,260 persons. Of those firms, 672 
had fewer than 500 employees. Those firms employed a total of 22,809 
persons.
    Data available from MSHA and the Energy Information Administration 
indicate that in 2006, there were 806 coal-mining firms employing a 
total of 81,891 persons and producing a total of 1,162,750,000 tons of 
coal. Within that total, there were 775 coal-mining firms with fewer 
than 500 employees. Those firms employed a total of 28,749 persons and 
produced a total of 247,400,000 tons of coal.
    Thus, MSHA data indicate that in 2006 small coal-mining firms 
comprised 96 percent of the total number of coal-mining firms in the 
United States. Those firms employed 35 percent of the total number of 
persons engaged in coal mining nationwide and produced 21 percent of 
the nation's coal.
Baseline of Potentially Affected Entities
    The principal change that could impact small coal mining firms is 
the requirement to minimize the volume of excess spoil generated at a 
particular mine site. Kentucky, Virginia, West Virginia, and Tennessee 
account for 98.6 percent of the total number of excess spoil fills 
approved nationwide in permits issued between October 2001 and June 
2005. Thus, the baseline of potentially impacted entities has been 
limited to the coal-producing region of central Appalachia, which 
includes eastern Kentucky, Virginia, southern West Virginia, and 
Tennessee.
    According to MSHA data, there were 389 coal-mining firms with fewer 
than 500 employees operating in central Appalachia in 2006. That number 
is approximately 23 percent of the total number of small coal-mining 
firms in the United States. The following data summarize coal 
production and employment in central Appalachia:
    Total coal production: 236,127,000 tons.
    Gross revenue from coal production: $11,275,064,250 (average price: 
$47.75 per ton).
    Coal-mining firms with fewer than 500 employees: 389.
    Coal produced by those firms: 87,447,368 tons.
    Gross revenue from those firms: $4,175,611,822 (average price: 
$47.75 per ton).
    Section 507(c) of SMCRA provides that an operator does not qualify 
for the small operator assistance program if the total annual 
production at all locations attributed to that operator exceeds 300,000 
tons. We determined that 325 of the 389 firms within central Appalachia 
that MSHA identified as small entities produced less than 300,000 tons 
of coal per year.
Number of Potentially Affected Entities
    According to MSHA data, in 2006 the 389 small coal-mining entities 
in central Appalachia operated a total of 765 mines, as shown in this 
table:

----------------------------------------------------------------------------------------------------------------
                                                                                                Percent of total
                                                                                                 number of mines
                                                             Number of small   Number of mines     operated by
                           State                               coal-mining       operated by     small entities
                                                                entities       small entities      in central
                                                                                                   Appalachia
----------------------------------------------------------------------------------------------------------------
Kentucky..................................................               224               397                51
Tennessee.................................................                10                35                 5
Virginia..................................................                52               107                14
West Virginia.............................................               103               226                30
                                                           -----------------------------------------------------
    Total.................................................               389               765               100
----------------------------------------------------------------------------------------------------------------


[[Page 75867]]

    We conducted an evaluation of permits issued in West Virginia 
between October 2001 and June 2005 to determine the number of stream 
miles impacted by excess spoil and coal mine waste fills permitted 
during that time. We used a sample of 110 of the 270 permits issued in 
West Virginia during that period. The sample included 28 permits for 
underground mining operations and 82 permits for surface mines and 
other types of mining-related operations regulated under SMCRA. A 
review of that data indicated that 4 percent (4) of all permits had 
refuse disposal facilities, 29 percent (24) of the permits for surface 
mines had excess spoil fills, and 4 percent (1) of the permits for 
underground mines had an excess spoil fill.
    To collect information on excess spoil, we conducted an evaluation 
of 92 new permits issued in Kentucky during 2006. The data indicate 
that 64 percent of small surface mining operations have permits 
authorizing construction of excess spoil fills. Those fills will 
generate 32 percent of the total projected volume of fill material to 
be produced by surface mines in Kentucky. In addition, 67 percent of 
the small underground operations have permits authorizing construction 
of excess spoil fills. Those fills will generate 91 percent of the 
total projected volume of fill material to be produced by underground 
mines in Kentucky.
    Extrapolating the data from the reviews of permits in Kentucky and 
West Virginia to all mines operated by small entities in central 
Appalachia, we estimate that the rule will impact 191 of the 389 small 
coal-mining entities in central Appalachia, based on the assumption 
that 64% (143) of the small entities in Kentucky will construct excess 
spoil fills and that 29% (48) of the small entities in West Virginia, 
Virginia, and Tennessee will do so.
Economic Impact on Potentially Affected Entities
    We do not believe there will be any significant economic impact 
upon small entities. Only two new types of compliance costs would 
affect operators of coal mines: costs of an alternatives analysis for 
disposal of coal mine waste and/or excess spoil; and costs of 
minimizing the volume of excess spoil to the extent possible. It is not 
possible to quantify compliance costs for all potentially affected 
small entities because each mine site is unique and the operational 
costs of complying with the rule will vary.
    Under the final rule, an operator must design and construct a mine 
to minimize both the volume of excess spoil created and the adverse 
impacts of excess spoil fills and coal mine waste disposal facilities 
on fish, wildlife, and related environmental values. Whenever a permit 
application proposes to place excess spoil or coal mine waste in or 
within 100 feet of a perennial or intermittent stream, the final rule 
requires the permit applicant to identify a range of reasonably 
possible alternatives and select the alternative with the least overall 
adverse impact on fish, wildlife, and related environmental values. In 
determining whether an alternative is reasonable, the applicant must 
consider cost, logistics, and the availability of technology.
    Based on discussions with mining consultants, developing the 
alternatives analysis for the permit application will cost between 
$10,000 and $15,000 per permit. However, most operators will incur 
little to no additional cost to provide the alternatives analysis 
because the Corps of Engineers usually requires a similar analysis to 
satisfy Clean Water Act requirements.
    With respect to operational costs, Section IV of a draft 
environmental impact statement \5\ issued in 2003 by the U.S. 
Environmental Protection Agency, the U.S. Army Corps of Engineers, the 
U.S. Fish and Wildlife Service, OSM, and the West Virginia Department 
of Environmental Protection contains the following discussion of fill 
minimization costs:
---------------------------------------------------------------------------

    \5\ ``Mountaintop Mining/Valley Fills in Appalachia Draft 
Programmatic Environmental Impact Statement'' (EPA 9-03-R-00013, EPA 
Region 3, June 2003).

    Fill minimization may increase operational costs to the mining 
operator because spoil that must be returned to the mine site has 
higher handling costs than the current practice of end-dump valley 
fill construction. * * * While not a direct comparison, and somewhat 
dated, the regulatory analysis that we used for the permanent 
program regulations indicated that placing spoil in lifts versus 
end-dumping to build valley fills added 17 cents/ton to the cost of 
---------------------------------------------------------------------------
mining coal in central Appalachia.

    The same document estimates the cost of compliance with a West 
Virginia Department of Environmental Protection policy intended to 
minimize the volume of excess spoil at 50 cents to one dollar for each 
cubic yard of spoil that, as a result of the policy, is retained on the 
mined-out area rather than placed in an excess spoil fill. We will use 
the West Virginia estimate as the cost of compliance with the fill 
minimization provisions of this final rule. However, some of those 
costs are offset by reduced mitigation expenses under other state and 
federal laws because compliance with the policy typically results in 
substantially reducing the length of stream segments impacted.
    We have analyzed the impact on eastern Kentucky small coal mine 
operators in more detail because more data is available from that 
state. We estimate that coal mines operated by the 143 small coal-
mining entities in Kentucky with excess spoil fills will generate 32 
percent (114,514,880 cubic yards) of the 357,829,000 cubic yards of 
excess spoil approved in all surface mine permits issued in 2006 in 
Kentucky. If we assume that the requirement to minimize the placement 
of spoil outside the mined-out area would require small entities to 
reduce the volume of excess spoil fills by 25 percent, then those 
entities will have to retain approximately 28,628,720 additional cubic 
yards within the mined out area for the permits that they received in 
2006. Further assuming that the unit cost for placing this amount of 
excess spoil within the mined-out area would be the same as in West 
Virginia (50 cents to one dollar per cubic yard), the total cost of 
this placement to small coal-mining entities in Kentucky will range 
from $14 million to $28 million, or an average of $98,000 to $196,000 
per small entity with excess spoil.
    We do not have sufficient data to perform a similar calculation for 
small coal-mining entities in the other three states. However, we can 
use the average cost per small entity with excess spoil in Kentucky to 
project a reasonable range of costs for small coal-mining entities in 
the remaining central Appalachian states. Specifically, the 48 
potentially impacted small entities in Tennessee, Virginia, and West 
Virginia could incur an additional cost of $4.7 million to $9.4 
million.
    Combining the projections for the 143 small entities in Kentucky 
and the 48 small entities in other states results in an estimated total 
cost ranging between $18.7 million and $37.4 million for all 191 small 
entities projected to be impacted.
    In the aggregate, the 224 small coal-mining entities in eastern 
Kentucky produced 41,587,096 tons of coal in 2006. At an average price 
of $47.75 per ton, the gross revenue from that production equals 
$1,985,783,800, with $1,270,901,653 of that amount attributable to the 
64% (143) of the small entities that we project will be impacted by 
this rule. Thus, the estimated cost of compliance with the requirement 
to minimize the placement of spoil outside the mined-out area is 
projected to range from 1.1 percent to 2.2 percent of the gross revenue 
for the 143 potentially impacted eastern Kentucky small coal-mining 
entities.

[[Page 75868]]

    At the same average price of $47.75 per ton, gross revenue in 2006 
for the other 165 small coal-mining entities in central Appalachia 
equals $2,985,783,834, of which $635,050,116 is attributable to the 29% 
(48) of those entities that we project will be impacted by this rule. 
Therefore, at an average price of $47.75 per ton, gross revenue in 2006 
totals $1,905,951,769 for the 191 central Appalachian small entities 
that we project will be impacted by this rule.
    Extrapolating this data to the central Appalachian region as a 
whole, we estimate the cost of compliance will range between $18.7 
million and $37.4 million, which translates to a range of 0.98 percent 
to 1.9 percent of the total gross revenue ($1,905,951,769) generated by 
potentially impacted small coal-mining entities in central Appalachia. 
This estimate is based on the assumption that only 48 (29%) of the 165 
small coal-mining entities in Tennessee, Virginia, and West Virginia 
produce excess spoil, while 64% (143) of the 224 Kentucky small coal-
mining entities do so.
    All regulatory authorities in central Appalachia have already 
implemented policies to minimize the volume of excess spoil placed 
outside the mined-out area, which means that, based on surveys 
conducted under the Paperwork Reduction Act, we expect that operators 
will incur no significant additional costs to implement these 
regulatory changes.
    We received no comments on the proposed rule from small 
municipalities (those with 50,000 or fewer residents) or local public 
entities such as water authorities. We anticipate that the final rule 
will not have any significant impact on those entities because, as 
discussed in the final environmental impact statement (EIS) for this 
rulemaking, we do not expect that the rule will either increase or 
decrease mining activities, either nationwide or in central Appalachia. 
Pages IV-165 and IV-166 of the final EIS discuss the lack of impact of 
this rule on the economy of the coal mining regions.

D. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. Based on the analysis in 
paragraphs A and C above, we have determined that the rule will not--
    a. Have an annual effect on the economy of $100 million or more.
    b. Cause a major increase in costs or prices for consumers, 
individual industries, Federal, state, or local government agencies, or 
geographic regions.
    c. Have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.

E. Unfunded Mandates

    This rule will not impose an unfunded mandate on state, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule will not have a significant or unique effect on state, 
tribal, or local governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1534) is not required.

F. Executive Order 12630--Takings

    This rule does not affect property rights. It governs how coal may 
be mined rather than whether it may be mined. For this reason and based 
on the discussion in the preamble and the analysis in the final 
environmental impact statement, we have determined that the rule will 
not have significant takings implications.

G. Executive Order 13132--Federalism

    This rule does not alter or affect the relationship between states 
and the Federal Government. Therefore, the rule will not have 
significant Federalism implications. Consequently, there is no need to 
prepare a Federalism assessment.

H. Executive Order 12988--Civil Justice Reform

    The Office of the Solicitor for the Department of the Interior has 
determined that this rule will not unduly burden the judicial system 
and that it meets the requirements of sections 3(a) and 3(b)(2) of the 
Executive Order.

I. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    We have evaluated the potential effects of this rule on federally 
recognized Indian tribes and have determined that no consultation or 
coordination is required because the rule will not have substantial 
direct effects on the relationship between the Federal Government and 
Indian tribes or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

J. Paperwork Reduction Act

    In accordance with 44 U.S.C. 3501 et seq., we sought comments on 
the collections of information contained in the proposed rule for 
modifications to 30 CFR parts 780, 784, 816, and 817. We received no 
comments from the public regarding these collections of information. 
The Office of Management and Budget has approved the information 
collection activities for these parts and assigned control numbers 
1029-0128 for sections 780.25, 780.28, and 780.35 (to be consolidated 
into 1029-0036 upon approval); 1029-0039 for part 784; and 1029-0047 
for parts 816 and 817. The expiration date for these collections of 
information is December 31, 2011. These collections estimate the burden 
as follows:
30 CFR Part 780, Sections 780.25, 780.28, and 780.35
    Title: Surface Mining Permit Applications-Minimum Requirements for 
Reclamation and Operation Plan.
    OMB Control Number: 1029-0128 (To be consolidated into 1029-0036).
    Summary: Section 506(a) of SMCRA, 30 U.S.C. 1256(a), requires that 
persons obtain a permit before conducting surface coal mining 
operations. Sections 507 and 508, 30 U.S.C. 1257 and 1258, 
respectively, establish application requirements, including a 
reclamation plan. The regulations in 30 CFR 780.25, 780.28, and 780.35 
implement these statutory provisions with respect to coal mine waste, 
excess spoil, impoundments, siltation structures, and mining in or near 
perennial or intermittent streams. The regulatory authority uses the 
information submitted in the permit application to determine whether 
the reclamation plan will achieve the reclamation and environmental 
protection requirements of the Act and regulatory program. Without this 
information, OSM and state regulatory authorities could not make the 
findings that section 510 of SMCRA, 30 U.S.C. 1260, requires before a 
permit application for surface coal mining operations may be approved.
    Bureau Form Number: None.
    Frequency of Collection: Once.
    Description of Respondents: Applicants for surface coal mining 
permits and state regulatory authorities.
    Total Annual Respondents: 270 applicants and 24 state regulatory 
authorities.
    Total Annual Burden Hours: 47,380.

[[Page 75869]]



                                  Summary of Annual Burden to Respondents for 30 CFR 780.15, 780.25, 780.28, and 780.35
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Hours
                Section                    Number of       Number of       Hours per    Hours per state    Total hours      currently       Difference
                                         applications    state reviews    application        review         requested       approved
--------------------------------------------------------------------------------------------------------------------------------------------------------
780.15................................               0               0               0              0                 0               8              (8)
780.25................................             225             221             123             25.2          33,250          14,155          19,095
780.28................................             270             264              10             10             5,340               0           5,340
780.35................................             170             168              27             25             8,790          12,660          (3,870)
                                       -----------------------------------------------------------------------------------------------------------------
    Totals............................  ..............  ..............             160             60.2          47,380          26,823          20,557
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Non-Labor Cost Burden: $202,000.
30 CFR Part 784
    Title: Underground Mining Permit Applications-Minimum Requirements 
for Reclamation and Operation Plan.
    OMB Control Number: 1029-0039.
    Summary: Among other things, section 516(d) of SMCRA, 30 U.S.C. 
1266(d), in effect requires applicants for permits for underground coal 
mines to prepare and submit an operation and reclamation plan for coal 
mining activities as part of the application. The regulatory authority 
uses this information to determine whether the plan will achieve the 
reclamation and environmental protection requirements of the Act and 
regulatory program. Without this information, OSM and state regulatory 
authorities could not approve permit applications for underground coal 
mines and related facilities.
    Bureau Form Number: None.
    Frequency of Collection: Once.
    Description of Respondents: Applicants for underground coal mine 
permits and state regulatory authorities.
    Total Annual Respondents: 62 applicants and 24 state regulatory 
authorities.
    Total Annual Burden Hours: 21,761.

                                                   Information Collection Summary for 30 CFR Part 784
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           Currently
                                               Industry    Industry      State       State       Total     approved     Program                Change to
                   Section                     responses   hours per   responses   hours per     hours      burden      changes   Adjustment    burden
                                                           response                response    requested     hours                               hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
784.11......................................          62           4          61           3         431         347           0          84          84
 .12........................................          25           6          24        2.25         204         198           0           6           6
 .13........................................          62          53          61         4.5       3,561       3,101           0         460         460
 .14........................................          62          40          61        8.75       3,014       3,063           0         -49         -49
 .15........................................          62           6          61           1         433         398           0          35          35
 .16........................................          62          16          61          10       1,602         814         801         -13         788
 .17........................................           1           6           1           5          11          99         -95           7         -88
 .18........................................          28           8          27           2         278         278           0           0           0
 .19........................................          47           9          46          12         975         583         369          23         392
 .20........................................          62          12          61           4         988       1,004           0         -16         -16
 .21........................................          62           4          61           8         736         245           0         491         491
 .22........................................          62          24          61           6       1,854       1,404           0         450         450
 .23........................................          62          40          61         7.5       2,938       2,954           0         -16         -16
 .24........................................          62          20          61         4.5       1,515       1,392           0         123         123
 .25........................................          34           6          33           4         336         346           0         -10         -10
 .28........................................          49          10          48          10         970           0         970           0         970
 .29........................................          62          16          61           5       1,297         331           0         966         966
 .30........................................          62           8          61           2         618         628           0         -10         -10
                                             -----------------------------------------------------------------------------------------------------------
    Totals..................................  ..........  ..........  ..........  ..........      21,761      17,185       2,045       2,531       4,576
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Non-Labor Cost Burden: $612,106.
30 CFR Parts 816 and 817
    Title: Permanent Program Performance Standards--Surface and 
Underground Mining Activities.
    OMB Control Number: 1029-0047.
    Summary: Sections 515 and 516 of SMCRA provide that permittees 
conducting coal mining and reclamation operations must meet all 
applicable performance standards of the regulatory program approved 
under the Act. The information collected is used by the regulatory 
authority in monitoring and inspecting surface coal mining and 
reclamation operations to ensure that they are conducted in compliance 
with the requirements of the Act.
    Bureau Form Number: None.
    Frequency of Collection: Once, on occasion, quarterly and annually.
    Description of Respondents: Coal mine operators, permittees, permit 
applicants, and state regulatory authorities.
    Total Annual Respondents: 4764 permittees and 24 state regulatory 
authorities
    Total Annual Burden Hours: 1,092,430.

[[Page 75870]]



                                               Information Collection Summary for 30 CFR Parts 816 and 817
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Currently
                Section                     Industry     Industry hours       State        State hours     Total hours    ,LI>approved      Changes to
                                            responses      per response     responses     per response      requested     burden hours     burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
 .41...................................          68,900             6.5               0               0         447,850         447,850               0
 .43...................................             616              16             270               5          11,206           4,480           6,726
 .49...................................          17,592               6               0               0         105,552         126,144         (20,592)
 .57...................................               0               0               0               0               0          30,800         (30,800)
 .62...................................          38,480               4               0               0         153,920         101,010          52,910
 .64...................................             962               4               0               0           3,848           3,848               0
 .67...................................         150,072             1.2               0               0         180,086         180,086               0
 .68...................................             962              12               0               0          11,544          11,544               0
 .71...................................           9,072               8               0               0          72,576         475,136        (402,560)
 .81...................................               0               0               0               0               0          15,528         (15,528)
.83 & .87..............................           7,764               3               0               0          23,292          23,292               0
 .116..................................             880              80               2             100          70,600          70,600               0
817.121................................              80               4               0               0             320             320               0
817.122................................           1,638              .5               0               0             819             816               3
 .131..................................             335              16             331              .5           5,526           5,360             166
 .151..................................             481              11               0               0           5,291           5,291               0
    Totals.............................         297,834  ..............             603  ..............       1,092,430       1,502,105        (409,675) 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Under 30 CFR 816/817.41, the water monitoring reports required under the National Pollutant Discharge Elimination System (NPDES) are not counted
  as an OSM burden.

    Non-Labor Cost Burden: $371,064.
    These burden estimates include time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collections of information. We 
may not conduct or sponsor and you are not required to respond to a 
collection of information unless we display a currently valid OMB 
control number. These control numbers are identified in sections 
780.10, 784.10, 816.10, and 817.10 of 30 CFR parts 780, 784, 816, and 
817, respectively.
    You should direct any comments on the accuracy of our burden 
estimates; ways to enhance the quality, utility, and clarity of the 
information to be collected; and ways to minimize the burden of 
collection on respondents, to the Information Collection Clearance 
Officer, Office of Surface Mining Reclamation and Enforcement, 1951 
Constitution Ave, NW., Room 202 SIB, Washington, DC 20240.

K. National Environmental Policy Act

    This rule constitutes a major Federal action significantly 
affecting the quality of the human environment under the National 
Environmental Policy Act of 1969 (NEPA). Therefore, we have prepared a 
final environmental impact statement (FEIS) pursuant to section 
102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C). The FEIS, which is entitled 
``OSM-EIS-34: Proposed Revisions to the Permanent Program Regulations 
Implementing the Surface Mining Control and Reclamation Act of 1977 
Concerning the Creation and Disposal of Excess Spoil and Coal Mine 
Waste and Stream Buffer Zones,'' is available on the Internet at 
www.regulations.gov. The Docket ID number is OSM-2007-0008. A copy of 
the FEIS is also available for inspection as part of the administrative 
record for this rulemaking in the South Interior Building, Room 101, 
1951 Constitution Avenue, NW., Washington, DC 20240.
    Both we and EPA published notices of availability of the FEIS on 
October 24, 2008 (73 FR 63510 and 63470, respectively). The wait period 
for the FEIS under 40 CFR 1506.10(b)(2) expired November 24, 2008. 
During that period, we received approximately 930 comments. However, 
the vast majority of commenters did not address the FEIS. Instead, the 
commenters variously expressed opposition to mountaintop removal 
operations, the placement of fill material in streams, mining 
activities adjacent to streams, or all or part of the proposed rule 
that we published on August 24, 2007, for which the comment period 
closed almost one year earlier (November 23, 2007). Some commenters 
opposed EPA concurrence with the final rule. A few commenters urged 
adoption of a wider buffer zone for streams to provide greater 
environmental protection. To the limited extent that commenters 
referred to the FEIS, they generally either expressed a preference for 
one of the alternatives (usually the no action alternative) or 
criticized the FEIS for not analyzing in detail the alternative 
prohibiting all mining activities within the stream buffer zone. There 
were no comments that raised substantive issues or identified 
significant errors or admissions that would necessitate reconsideration 
of the adequacy of the FEIS.
    The preamble to this final rule serves as the ``Record of 
Decision'' under NEPA. Because of the length of the preamble, we have 
prepared the following concise summary of the FEIS and the decisions 
made in the final rule relative to the alternatives considered in the 
FEIS.
    Because of the comments we received on the proposed rule and draft 
EIS, the final rule differs somewhat from the proposed rule, which 
means that the preferred alternative in the final EIS differs somewhat 
from the preferred alternative in the draft EIS. In making these 
changes and in developing the final rule, we used the EIS to understand 
the potential environmental impacts.
Alternatives Considered
    The draft and final environmental impact statements contain an 
analysis of five rulemaking alternatives, which are summarized below. 
Alternative 1 is both the preferred alternative and the environmentally 
preferable alternative; it forms the basis for the final rule that we 
are adopting today.
No Action Alternative
    Under this alternative, we would not adopt any new or revised 
rules. The current regulations applicable to excess spoil generation, 
coal mine waste disposal, fill construction, and stream buffer zones 
would remain unchanged.
    One state regulatory authority supported this alternative because 
it would require no changes in state regulatory programs.

[[Page 75871]]

Alternative 1: Preferred Alternative
    Under this alternative, as set forth in the draft EIS, we would 
revise our rules to--
     Require the permit applicant to demonstrate that the 
operation has been designed to minimize the volume of excess spoil to 
the extent possible.
     Require that excess spoil fills be designed and 
constructed to be no larger than needed to accommodate the anticipated 
volume of excess spoil that the proposed operation will generate.
     Require that permit applicants for operations that would 
generate excess spoil develop various alternative excess spoil disposal 
plans in which the size, numbers, configuration, and locations of the 
fills vary; submit an analysis of the environmental impacts of those 
alternatives; and select the alternative with the least overall adverse 
environmental impact or demonstrate to the satisfaction of the 
regulatory authority why implementation of that alternative is not 
possible.
     Require that excess spoil fills be constructed in 
accordance with the plans approved in the permit and in a manner that 
minimizes disturbances to and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available.
     Require that permit applicants for operations that would 
include coal mine waste disposal structures identify alternative 
disposal methods and alternative locations for any disposal structures; 
analyze the viability and environmental impacts of each alternative; 
and select the alternative with the least overall adverse environmental 
impact or demonstrate to the satisfaction of the regulatory authority 
why implementation of that alternative is not possible.
     Revise the stream buffer zone rules to apply to all waters 
of the United States and modify the permit application requirements 
accordingly; identify those activities that are not subject to the 
prohibition on conducting mining and reclamation activities on the 
surface of lands within 100 feet of waters of the United States; 
consolidate and revise requirements for stream-channel diversions in 30 
CFR 816.43 and 817.43, and replace the existing findings regarding 
stream water quantity and quality and State and Federal water quality 
standards with language that better correlates with the underlying 
provisions of SMCRA (paragraphs (b)(10)(B)(i) and (b)(24) of section 
515 and paragraphs (b)(9)(B) and (b)(11) of section 516).
    However, after evaluating the comments that we received on the 
draft EIS and the proposed rule, we substantially revised the preferred 
alternative. A description of the modified preferred alternative 
appears below, organized by subject (excess spoil, coal mine waste, 
stream buffer zones):
Excess Spoil
    This alternative would revise 30 CFR 780.35 and 784.19 to require 
that a permit application in which the applicant proposes to generate 
excess spoil include a demonstration, to the satisfaction of the 
regulatory authority, that the operation is designed to minimize, to 
the extent possible, the volume of excess spoil that the operation will 
generate, thus ensuring that spoil is returned to the mined-out area to 
the extent possible, taking into consideration applicable regulations 
concerning restoration of the approximate original contour, safety, 
stability, and environmental protection and the needs of the proposed 
postmining land use. The revised regulations would also require a 
demonstration, prepared to the satisfaction of the regulatory 
authority, that the designed maximum cumulative volume of all proposed 
excess spoil fills within the permit area is no larger than the 
capacity needed to accommodate the anticipated cumulative volume of 
excess spoil that the operation will generate, as approved by the 
regulatory authority.
    The revised regulations also would provide that the applicant must 
design the operation to avoid placement of excess spoil in or within 
100 feet of a perennial or intermittent stream to the extent possible. 
The purpose of this provision is to minimize adverse impacts on fish, 
wildlife, and related environmental values. If avoidance is not 
possible, the applicant would have to explain, to the satisfaction of 
the regulatory authority, why an alternative that does not involve 
placement of excess spoil in or within 100 feet of a perennial or 
intermittent stream is not reasonably possible. In addition, the 
applicant would have to identify a reasonable range of alternatives 
that vary with respect to the number, size, location, and configuration 
of proposed fills. The applicant would have to identify only those 
alternatives that are reasonably possible and that are likely to differ 
in terms of impacts on fish, wildlife, and related environmental 
values.
    An alternative would be reasonably possible if it conformed to the 
safety, engineering, design, and construction requirements of the 
regulatory program and is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one 
alternative may cost somewhat more than a different alternative would 
not necessarily warrant exclusion of the more costly alternative from 
consideration. However, an alternative generally could be considered 
unreasonable if its cost was substantially greater than the costs 
normally associated with this type of project. In addition, to be 
considered reasonable, a potential alternative would have to be 
consistent with the coal recovery provisions of 30 CFR 816.59 and 
817.59, which provide that mining activities must be conducted so as to 
maximize the utilization and conservation of the coal, while utilizing 
the best appropriate technology currently available to maintain 
environmental integrity, so that reaffecting the land in the future 
through surface coal mining operations is minimized.
    The applicant would have to analyze the impacts of each of the 
identified alternatives on fish, wildlife, and related environmental 
values, taking into consideration both terrestrial and aquatic 
ecosystems. For every alternative that would involve placement of 
excess spoil in a perennial or intermittent stream, the analysis must 
include an evaluation of impacts on the physical, chemical, and 
biological characteristics of the stream downstream of the proposed 
fill, including seasonal variations in temperature and volume, changes 
in stream turbidity or sedimentation, the degree to which the excess 
spoil may introduce or increase contaminants, and the effects on 
aquatic organisms and the wildlife that is dependent upon the stream. 
If the applicant prepared an analysis of alternatives for the proposed 
fill under 40 CFR 230.10 to meet Clean Water Act requirements, the 
applicant could initially submit a copy of that analysis with the 
application in lieu of complying with the analytical requirements 
detailed in the preceding sentence. The regulatory authority would 
determine whether and to what extent the analysis prepared for Clean 
Water Act purposes satisfies the analytical requirements under this 
alternative.
    The applicant would be required to select the alternative with the 
least overall adverse impact on fish, wildlife, and related 
environmental values, including adverse impacts on water quality and 
terrestrial and aquatic ecosystems.
    Finally, under the preferred alternative, we would revise the 
performance standards concerning

[[Page 75872]]

excess spoil at 30 CFR 816.71 and 817.71 by adding a requirement that 
the permittee construct the fill in accordance with the design and 
plans approved in the permit. We also would add a provision requiring 
the permittee to place excess spoil in a location and manner that would 
minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available.
Coal Mine Waste
    This alternative would revise our coal mine waste disposal 
regulations in a fashion similar to what we proposed for excess spoil 
disposal. The permitting regulations at 30 CFR 780.25 and 784.16 would 
be revised to provide that the applicant must design the operation to 
avoid placement of coal mine waste in or within 100 feet of perennial 
or intermittent stream to the extent possible. If avoidance is not 
reasonably possible, the applicant would have to identify a reasonable 
range of alternative locations or configurations for any proposed 
refuse piles or coal mine waste impoundments. The applicant would have 
to identify only alternatives that are reasonably possible and that are 
likely to differ in terms of impacts on fish, wildlife, and related 
environmental values. The fact that one alternative may cost somewhat 
more than a different alternative would not necessarily warrant 
exclusion of the more costly alternative from consideration. However, 
an alternative generally could be considered unreasonable if its cost 
is substantially greater than the costs normally associated with this 
type of project. In addition, to be considered reasonable, a potential 
alternative would have to be consistent with the coal recovery 
provisions of 30 CFR 816.59 and 817.59, which provide that mining 
activities must be conducted so as to maximize the utilization and 
conservation of the coal, while utilizing the best appropriate 
technology currently available to maintain environmental integrity, so 
that reaffecting the land in the future through surface coal mining 
operations is minimized.
    The applicant would have to analyze the impacts of each of the 
identified alternatives on fish, wildlife, and related environmental 
values, taking into consideration both terrestrial and aquatic 
ecosystems. For every alternative that would involve placement of coal 
mine waste in a perennial or intermittent stream, the analysis would 
have to include an evaluation of the impacts on the physical, chemical, 
and biological characteristics of the stream downstream of the proposed 
refuse pile or slurry impoundment, including seasonal variations in 
temperature and volume, changes in stream turbidity or sedimentation, 
the degree to which the coal mine waste may introduce or increase 
contaminants, and the effects on aquatic organisms and the wildlife 
that is dependent upon the stream. If the applicant prepared an 
analysis of alternatives for the proposed refuse pile or slurry 
impoundment under 40 CFR 230.10 to meet Clean Water Act requirements, 
the applicant could initially submit a copy of that analysis with the 
application in lieu of complying with the analytical requirements 
detailed in the preceding sentence. The regulatory authority would then 
determine whether and to what extent the analysis prepared for Clean 
Water Act purposes satisfies the analytical requirements under this 
alternative.
    The applicant would be required to select the alternative with the 
least overall adverse impact on fish, wildlife, and related 
environmental values, including adverse impacts on water quality and 
aquatic and terrestrial ecosystems.
Stream Buffer Zones
    This alternative would add new regulations at 30 CFR 780.28 and 
784.28 to establish permit application requirements and regulatory 
authority review responsibilities if mining or related regulated 
activities are proposed in or within 100 feet of a perennial or 
intermittent stream. The new requirements, which would reflect the 
SMCRA provisions upon which the stream buffer zone rule is based, would 
replace the findings that the regulatory authority must make under 
existing 30 CFR 816.57(a)1) and 817.57(a)(1) before authorizing 
activities within 100 feet of a perennial or intermittent stream. The 
findings in the existing rule include several Clean Water Act-related 
provisions that would be removed under this alternative.
    When an applicant proposes to conduct activities in the stream 
itself, the preferred alternative would require that the applicant 
demonstrate that avoiding disturbance of the stream is not reasonably 
possible. The applicant also would have to demonstrate that the 
activities would comply with all applicable regulations concerning use 
of the best technology currently available to prevent contributions of 
additional suspended solids to streamflow or runoff outside the permit 
area to the extent possible and to minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values to the 
extent possible. Before approving the proposed activities in the 
stream, the regulatory authority would have to prepare written findings 
concurring with those demonstrations.
    When an applicant proposes to conduct activities within the buffer 
zone but not within the stream itself, the preferred alternative would 
require that the applicant demonstrate that avoiding disturbance of the 
stream buffer zone either is not reasonably possible or is not 
necessary to meet the hydrologic balance and fish and wildlife 
protection requirements of the regulatory program. The applicant also 
would have to identify any lesser buffer zone that he or she proposes 
to maintain and explain how the lesser buffer zone, together with any 
other protective measures proposed, constitute the best technology 
currently available to prevent contributions of additional suspended 
solids to streamflow or runoff outside the permit area to the extent 
possible and to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible. 
Before approving the applicant's proposed activities in the stream 
buffer zone, the regulatory authority would have to prepare written 
findings concurring with the demonstration and explanation in the 
application.
    In all cases, the new rules would require that the applicant 
identify the authorizations and certifications that would be needed 
under the Clean Water Act and its implementing regulations. The 
preferred alternative would clarify that, while the SMCRA permit may be 
issued in advance of any necessary Clean Water Act authorization, 
issuance of a SMCRA permit does not allow the permittee to initiate any 
activities for which Clean Water Act authorization or certification is 
needed.
    Under the preferred alternative, we also would revise the stream 
buffer zone performance standards at 30 CFR 816.57 and 817.57 to 
provide that the requirement to maintain an undisturbed buffer around a 
perennial or intermittent stream does not apply to those stream 
segments for which the regulatory authority approves one or more of the 
following activities:
     Diversion of a perennial or intermittent stream.
     Placement of bridge abutments, culverts, or other 
structures in or within 100 feet of a perennial or intermittent stream 
to facilitate crossing of the stream by roads, railroads, conveyors, 
pipelines, utilities, or similar facilities.
     Construction of sedimentation pond embankments in a 
perennial or

[[Page 75873]]

intermittent stream, including the pool or storage area created by the 
embankment.
     Construction of excess spoil fills and coal mine waste 
disposal facilities in a perennial or intermittent stream.
    Each of these activities would remain subject to all other existing 
performance standards, including standards that regulate the 
environmental impacts of the activities. Thus, for example, all surface 
activities conducted in or within 100 feet of a perennial or 
intermittent stream must comply with SMCRA sections 515(b)(10)(B)(i) 
and 515(b)(24) and various regulations implementing those statutory 
provisions. Also, paragraph (b) of 30 CFR 816.57 and 817.57 (1983), 
which requires that buffer zones be marked, would be deleted and merged 
with our other signs and markers requirements at 30 CFR 816.11(e) and 
817.11(e).
    In the draft EIS, we also sought comment on a variant of this 
alternative, which would revise the buffer zone rule to apply to all 
waters of the United States and would eliminate paragraph (a)(2) of 30 
CFR 816.57 and 817.57 (1983), which contained a redundant requirement 
for a finding that stream-channel diversions will comply with 30 CFR 
816.43 or 817.43. However, the variant otherwise would retain much of 
the 1983 stream buffer zone rule language at 30 CFR 816.57(a) and 
817.57(a), with several modifications. The first modification would 
revise paragraph (a)(1), which required that the regulatory authority 
find that the ``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,'' by inserting the clause ``as 
indicated by issuance of a certification under section 401 of the Clean 
Water Act or a permit under section 402 or 404 of the Clean Water Act'' 
after ``State or Federal water quality standards,'' by replacing the 
phrase ``adversely affect'' with ``significantly degrade,'' and by 
replacing the phrase ``of the stream'' with ``of the waters outside the 
permit area.'' In addition, this variant would add a new finding that 
would require minimization of disturbances and adverse impacts on fish, 
wildlife, and other related environmental values of the waters to the 
extent possible using the best technology currently available.
    Apart from its expansion to include all waters of the United 
States, this variant would largely preserve the status quo in terms of 
application of the 1983 stream buffer zone rule. The revised rule 
language would be more consistent than the existing rule language with 
the historical application of the 1983 stream buffer zone rule, which 
we discussed earlier in Parts III.D. and III.E. of this preamble. The 
change from ``adversely affect'' to ``significantly degrade'' would 
replace language of uncertain provenance with language similar to that 
found in the 404(b)(1) Guidelines at 40 CFR 230.10(c), which pertains 
to placement of dredged or fill materials in waters of the United 
States under section 404 of the Clean Water Act. The proposed new 
finding in paragraph (a)(3) would reiterate the requirements of section 
515(b)(24) of SMCRA.
    We sought comment on the benefits and drawbacks of this variant as 
contrasted with the buffer zone rule changes that we proposed. In 
particular, we invited comment on the extent to which our rules can or 
should incorporate broad references to Clean Water Act requirements and 
use Clean Water Act terminology in place of SMCRA terminology. We also 
invited comment on whether and how our preferred alternative and this 
variant differ in terms of impact on the ability of proposed surface 
coal mining and reclamation operations to qualify for a nationwide 
permit under section 404 of the Clean Water Act.
    We received very few comments in response to this request. Those 
that we did receive generally opposed adoption of the variant because 
of the change from ``adversely affect'' to ``significantly degrade'' 
and, in one case, replacing the phrase ``of the stream'' with ``of the 
waters outside the permit area.''
Alternative 2: January 7, 2004, Proposed Rule
    Under this alternative, we would revise our regulations in a manner 
similar to that set forth in our January 7, 2004, proposed rule (69 FR 
1036). In essence, the changes to our excess spoil regulations would be 
generally analogous to the changes described in Alternative 1, but we 
would not make similar changes to our coal mine waste disposal rules. 
With respect to the stream buffer zone rules, we would retain the 
prohibition on disturbance of land within 100 feet of a perennial or 
intermittent stream, but alter the findings that the regulatory 
authority must make before granting a variance to this requirement. The 
revised rule would replace the findings in the 1983 stream buffer zone 
rule with a requirement that the regulatory authority find in writing 
that the activities would, to the extent possible, use the best 
technology currently available to--
    (1) Prevent additional contributions of suspended solids to the 
section of stream within 100 feet downstream of the mining activities, 
and outside the area affected by mining activities; and
    (2) Minimize disturbances and adverse impacts on fish, wildlife, 
and other related environmental values of the stream.
    Under this alternative, persons seeking to conduct surface mining 
activities (or, for underground mines, surface activities) on the 
surface of lands within the buffer zone of a perennial or intermittent 
stream would have to seek and obtain a variance from the regulatory 
authority in all cases, even if the stream segment is to be diverted or 
filled. There would be no categorical exceptions for certain activities 
as there are under Alternative 1.
    Essentially, Alternative 2 differs from Alternative 1 in the 
following respects: Under Alternative 2, the changes to the excess 
spoil regulations would be generally analogous to the changes described 
in Alternative 1, with the exception that an alternatives analysis 
would be required in every case in which an operation generated excess 
spoil, not just those for those operations that propose to place excess 
spoil in or within 100 feet of a perennial or intermittent stream. In 
addition, Alternative 2 would not amend the coal mine waste disposal 
rules. With respect to the stream buffer zone rule, Alternative 2, 
unlike Alternative 1, would not establish separate permitting 
requirements for proposed activities in or within 100 feet of a 
perennial or intermittent stream. Unlike Alternative 1, Alternative 2 
provides no exception from the requirement to either avoid the buffer 
zone or obtain a variance from the regulatory authority. The findings 
required for a variance also differ. Most significantly, under 
Alternative 2, applicants would not need to demonstrate--and the 
regulatory authority would not need to find--that it is not reasonably 
possible to avoid disturbing the stream or its buffer zone.
    Several industry commenters supported adoption of this alternative, 
primarily because it would reduce ambiguity associated with the 1983 
stream buffer zone rule and included more modest excess spoil 
minimization and alternatives analysis requirements than Alternative 1. 
In addition, they noted favorably that, unlike the preferred 
alternative, Alternative 2 would not use the term ``waters of the 
United States'' in lieu of perennial or intermittent streams in 
defining the scope of the stream buffer zone rule, and did not include 
requirements for an

[[Page 75874]]

alternatives analysis of proposals to place coal mine waste in or near 
waters of the United States.
Alternative 3: Change Only the Excess Spoil Regulations
    Under this alternative, we would revise our excess spoil 
regulations as described in Alternative 1. We would not revise our coal 
mine waste disposal rules or the stream buffer zone regulations.
    This alternative received little support from commenters. One 
industry commenter opposed it because it included requirements for an 
alternatives analysis of proposals to place coal mine waste and excess 
spoil in or near waters of the United States.
Alternative 4: Change Only the Stream Buffer Zone Regulations
    Under this alternative, we would revise our stream buffer zone 
regulations as described in Alternative 1. We would not revise our 
excess spoil or coal mine waste disposal regulations.
    This alternative received some support from those commenters who 
saw no benefit and many difficulties with our proposed excess spoil and 
coal mine waste disposal requirements, as described in the preferred 
alternative, but who wanted to see the controversy surrounding the 
stream buffer zone rule resolved.
Decision
    We are adopting the preferred alternative as described in the final 
EIS. The final rule and the preferred alternative in the final EIS 
differ from the proposed rule and the preferred alternative in the 
draft EIS in several respects. The most significant differences are 
summarized below:
    1. In the final rule, we retained the scope of the 1983 stream 
buffer zone rule, which included only perennial and intermittent 
streams, rather than adopting those provisions of our proposed rules 
that would have applied the buffer zone restrictions to waters of the 
United States. As discussed in Part VII of this preamble, almost all 
commenters who opined on this issue opposed the proposed change to 
waters of the United States. In general, commenters preferred the 
relatively well-understood concept of perennial and intermittent 
streams as opposed to the uncertain meaning of the term waters of the 
United States.
    2. In response to concerns that the proposed rule did not 
adequately protect headwater streams, we added a requirement that the 
operation be designed to avoid placement of excess spoil or coal mine 
waste in or within 100 feet of perennial or intermittent streams to the 
extent possible.
    3. We extensively revised the rule to clearly differentiate between 
permit application requirements and findings required for approval of 
activities that would take place in perennial or intermittent streams 
and the requirements and findings for those activities that would 
disturb only the buffer zone for those streams. Specifically, in the 
final rule, new sections 780.28 and 784.28 provide that, as a 
prerequisite for approval of activities in a perennial or intermittent 
stream, the permit applicant must demonstrate, and the regulatory 
authority must find, that it is not reasonably possible to avoid 
disturbance of the stream or its buffer zone. In addition, the SMCRA 
permit must include a condition requiring a demonstration of compliance 
with all applicable Clean Water Act authorization or certification 
requirements before the permittee may conduct any activities in the 
stream for which authorization or certification is required under the 
Clean Water Act. For activities that would occur within the buffer 
zone, but not in the stream itself, the final rule provides that the 
permit applicant must demonstrate, and the regulatory authority must 
find, that avoiding disturbance of the buffer zone either is not 
reasonably possible or is not necessary to meet the fish and wildlife 
and hydrologic balance protection requirements of the regulatory 
program.
    4. We revised the rules governing the disposal of coal mine waste 
and placement of excess spoil to require identification and analysis of 
alternatives only when the applicant proposes to place coal mine waste 
or excess spoil in or within 100 feet of a perennial or intermittent 
stream. In addition, as revised, the final rule provides that the 
permit applicant need identify only those reasonably possible 
alternatives that are likely to differ significantly in terms of 
impacts on fish, wildlife, and related environmental values. The 
proposed rule would have required identification of a reasonable range 
of alternatives, which could have included alternatives that are 
possible from a technological perspective, but are impracticable 
because of cost or other considerations. The final rule specifies that 
an alternative is reasonably possible if it--
    (A) Conforms to the safety, engineering, design, and construction 
requirements of the regulatory program.
    (B) Is capable of being done after consideration of cost, 
logistics, and available technology. The fact that one alternative may 
cost somewhat more than a different alternative does not necessarily 
warrant exclusion of the more costly alternative from consideration. 
However, an alternative generally may be considered unreasonable if its 
cost is substantially greater than the costs normally associated with 
that type of project.
    (C) Is consistent with the provisions of 30 CFR 816.59/817.59, 
which require maximization of coal recovery to minimize the likelihood 
that the land will be reaffected by mining operations in the future.
    5. The final rule requires a permit applicant proposing to place 
excess spoil or coal mine waste in or within 100 feet of a perennial or 
intermittent stream to select the alternative with the least overall 
adverse impact on fish, wildlife, and related environmental values. The 
proposed rule would have allowed an applicant to select a less 
protective alternative based upon a demonstration that the most 
protective alternative was not possible. However, under the revised 
final rule, an applicant need only identify and consider reasonably 
possible alternatives, which means that this provision of the proposed 
rule is no longer appropriate or relevant.
    6. The final rule clarifies that the stream buffer zone requirement 
does not apply to any stream segment for which a stream-channel 
diversion is approved and constructed. The proposed rule would have 
applied the exception only to mining through streams, which has limited 
utility in the context of underground mines. Furthermore, it would be 
illogical to apply the buffer zone requirement to any stream segment 
that has been diverted, regardless of the reason for the diversion, 
because there is no longer a need or purpose for a buffer zone for a 
former stream channel from which all flows have been diverted.
Environmental Effects of the Alternatives
    The information obtained in the course of preparing this EIS 
indicates that the proposed Federal action may have the most 
significant effects in the central Appalachian coal fields, 
particularly eastern Kentucky, southwestern Virginia, and southern West 
Virginia. The steep-slope terrain, ample rainfall, and abundant 
surface-minable reserves of high quality bituminous coal in these areas 
help explain why 98% of all excess spoil fills nationally and 
approximately 61 percent of the stream miles directly impacted by 
mining are located in these areas.

[[Page 75875]]

    Alternatives 1, 2, and 3 would revise the excess spoil regulations 
to enhance consideration of the environmental effects of fill 
construction by requiring that applicants minimize the volume of spoil 
placed outside the mined-out area, design and construct excess spoil 
fills to reduce the amount of land and water directly affected outside 
the mined-out area, and configure fills to minimize adverse impacts on 
fish, wildlife, and related environmental values. States in the central 
Appalachian coalfields (Kentucky, Virginia, Tennessee, and West 
Virginia) have taken various steps in accordance with their approved 
SMCRA regulatory programs to implement similar actions, so the impacts 
of the excess spoil elements of alternatives likely would be limited by 
the changes already made by those states.
    We do not anticipate that the revisions that Alternatives 1, 2, and 
4 would make to the stream buffer zone rule would have any major on-
the-ground consequences because we do not expect that those revisions 
would alter the rate at which surface coal mining and reclamation 
operations are impacting perennial and intermittent streams. Between 
1992 and 2002, we estimate that coal mining operations directly 
impacted 1,208 miles of stream in the central Appalachian coal fields, 
which constitutes 2.05 percent of the total stream miles in the central 
Appalachian coal fields. At this rate, 4.1% of the total stream miles 
in central Appalachia would be directly impacted within the subsequent 
10 years. The miles of stream directly impacted by excess spoil fills 
for permits issued between 1985 and 2001 is 724 miles, which is 
approximately 1.2 percent of the streams in central Appalachia. If fill 
construction continued at this rate, an additional 724 miles of 
headwater streams would be buried in the next 17 years (by 2018). This 
trend likely would decline as surface-minable coal reserves in central 
Appalachia are depleted in the next few decades.
    Alternative 1 is uniquely different from the other alternatives in 
that it incorporates changes to reduce the adverse impacts of coal mine 
waste disposal facilities (refuse piles and slurry impoundments) on 
fish, wildlife, and related environmental values. We anticipate that 
these changes would positively impact the environment.
    We estimate that the combination of the excess spoil and coal mine 
waste provisions in Alternative 1 would result in slight positive 
effects on the human environment with respect to direct hydrologic 
impacts, water quality, and aquatic fauna when compared to the ``no 
action'' alternative. In the final rule, we are adopting this 
alternative, which is both the most environmentally protective 
alternative and the preferred alternative.
Mitigation, Monitoring and Enforcement
    We have adopted all practicable means to avoid or minimize 
environmental harm from the alternative selected. SMCRA's permitting 
requirements and performance standards generally require avoidance or 
minimization of adverse impacts to important environmental resources, 
and our regulations do likewise. In particular, this final rule 
requires that surface coal mining operations be designed to minimize 
the amount of spoil placed outside the mined-out area, thus minimizing 
the amount of land disturbed. The final rule also requires that, to the 
extent possible, surface coal mining and reclamation operations be 
designed to avoid disturbance of perennial or intermittent streams and 
the surface of lands within 100 feet of those streams. If avoidance is 
not reasonably possible, the rule requires that the permit applicant 
develop and analyze a reasonable range of reasonably possible 
alternatives and select the alternative that would have the least 
overall adverse impact on fish, wildlife, and related environmental 
values.
    Each SMCRA regulatory program includes five major elements: 
Permitting requirements and procedures, performance bonds to guarantee 
reclamation in the event that the permittee defaults on any reclamation 
obligations, performance standards to which the operator must adhere, 
inspection and enforcement to maintain compliance with performance 
standards and the terms and conditions of the permit, and a process for 
the designation of lands as unsuitable for surface coal mining 
operations. Under 30 CFR 730.5, 732.15, and 732.17, each state 
regulatory program must be no less effective than our regulations in 
achieving the requirements of the Act. We conduct oversight of each 
state's implementation of its approved regulatory program.

List of Subjects

30 CFR Part 780

    Incorporation by reference, Reporting and recordkeeping 
requirements, Surface mining.

30 CFR Part 784

    Incorporation by reference, Reporting and recordkeeping 
requirements, Underground mining.

30 CFR Part 816

    Environmental protection, Reporting and recordkeeping requirements, 
Surface mining.

30 CFR Part 817

    Environmental protection, Reporting and recordkeeping requirements, 
Underground mining.

    Dated: December 1, 2008,
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.

0
For the reasons set forth in the preamble, the Department revises 30 
CFR parts 780, 784, 816, and 817 as set forth below.

PART 780--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS 
FOR RECLAMATION AND OPERATION PLAN

0
1. The authority citation for part 780 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.


0
2. The part heading is revised to read as set forth above.
0
3. Section 780.10 is revised to read as follows:


Sec.  780.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of this part and assigned clearance number 1029-0036. Sections 507 and 
508 of SMCRA contain permit application requirements for surface coal 
mining activities, including a requirement that the application include 
an operation and reclamation plan. The regulatory authority uses this 
information to determine whether the proposed surface coal mining 
operation will achieve the environmental protection requirements of the 
Act and regulatory program. Without this information OSM and state 
regulatory authorities could not approve permit applications for 
surface coal mines and related facilities. Persons intending to conduct 
such operations must respond to obtain a benefit. A Federal agency may 
not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

0
4. Amend Sec.  780.14 by revising paragraphs (b)(11) and (c) to read as 
follows:


Sec.  780.14  Operation plan: Maps and plans.

* * * * *
    (b) * * *

[[Page 75876]]

    (11) Locations of each siltation structure, permanent water 
impoundment, refuse pile, and coal mine waste impoundment for which 
plans are required by Sec.  780.25 of this part, and the location of 
each fill for the disposal of excess spoil for which plans are required 
under Sec.  780.35 of this part.
    (c) Except as provided in Sec. Sec.  780.25(a)(2), 780.25(a)(3), 
780.35, 816.73(c), 816.74(c), and 816.81(c) of this chapter, cross-
sections, maps, and plans required under paragraphs (b)(4), (5), (6), 
(10), and (11) of this section 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 cross-sections, maps, and plans, 
a qualified, registered, professional land surveyor, with assistance 
from experts in related fields such as landscape architecture.

0
5. Amend Sec.  780.25 as follows:
0
A. Revise the section heading, paragraph (a) introductory text, 
paragraph (a)(1) introductory text, and paragraph (a)(2);
0
B. Revise paragraph (c)(2) and add paragraph (c)(4);
0
C. Revise paragraph (d); and
0
D. Remove paragraphs (e) and (f).
    The revisions and addition read as follows:


Sec.  780.25  Reclamation plan: Siltation structures, impoundments, and 
refuse piles.

    (a) General. Each application must include a general plan and a 
detailed design plan for each proposed siltation structure, 
impoundment, and refuse pile within the proposed permit area.
    (1) Each general plan must--
* * * * *
    (2)(i) Impoundments meeting the criteria for Significant Hazard 
Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams 
and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005), 
published by the U.S. Department of Agriculture, Natural Resources 
Conservation Service, must comply with the requirements of this section 
for structures that meet the criteria in Sec.  77.216(a) of this title. 
Technical Release No. 60 (TR-60) is hereby incorporated by reference. 
The Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
review and download the incorporated document from the Natural 
Resources Conservation Service's Web site at http://www.info.usda.gov/scripts/lpsiis.dll/TR/TR_210_60.htm. You may inspect and obtain a 
copy of this document which is on file at the Administrative Record 
Room, Office of Surface Mining Reclamation and Enforcement, 1951 
Constitution Avenue, NW., Washington, DC 20240. For information on the 
availability of this document at OSM, call 202-208-2823. You also may 
inspect a copy of this document at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (ii) Each detailed design plan for a structure that meets the 
criteria in Sec.  77.216(a) of this title must--
    (A) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (B) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (C) Describe the operation and maintenance requirements for each 
structure; and
    (D) Describe the timetable and plans to remove each structure, if 
appropriate.
* * * * *
    (c) * * *
    (2) Each plan for an impoundment meeting the criteria in Sec.  
77.216(a) of this title must comply with the requirements of Sec.  
77.216-2 of this title. The plan required to be submitted to the 
District Manager of MSHA under Sec.  77.216 of this title must be 
submitted to the regulatory authority as part of the permit 
application.
* * * * *
    (4) If the structure meets the Significant Hazard Class or High 
Hazard Class criteria for dams in TR-60 or meets the criteria of Sec.  
77.216(a) of this chapter, each plan must include a stability analysis 
of the structure. The stability analysis must include, but not be 
limited to, strength parameters, pore pressures, and long-term seepage 
conditions. The plan also must contain a description of each 
engineering design assumption and calculation with a discussion of each 
alternative considered in selecting the specific design parameters and 
construction methods.
    (d) Coal mine waste impoundments and refuse piles. If you, the 
permit applicant, propose to place coal mine waste in a refuse pile or 
impoundment, or if you plan to use coal mine waste to construct an 
impounding structure, you must comply with the applicable requirements 
in paragraphs (d)(1) through (d)(3) of this section.
    (1) Addressing impacts to perennial and intermittent streams and 
related environmental values. You must design the operation to avoid 
placement of coal mine waste in or within 100 feet of a perennial or 
intermittent stream to the extent possible. If avoidance is not 
possible, you must--
    (i) Explain, to the satisfaction of the regulatory authority, why 
an alternative coal mine waste disposal method or an alternative 
location or configuration that does not involve placement of coal mine 
waste in or within 100 feet of a perennial or intermittent stream is 
not reasonably possible.
    (ii) Identify a reasonable range of alternative locations or 
configurations for any proposed refuse piles or coal mine waste 
impoundments. This provision does not require identification of all 
potential alternatives. You need identify only those reasonably 
possible alternatives that are likely to differ significantly in terms 
of impacts on fish, wildlife, and related environmental values. An 
alternative is reasonably possible if it meets all the following 
criteria:
    (A) The alternative conforms to the safety, engineering, design, 
and construction requirements of the regulatory program.
    (B) The alternative is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one 
alternative may cost somewhat more than a different alternative does 
not necessarily warrant exclusion of the more costly alternative from 
consideration. However, an alternative generally may be considered 
unreasonable if its cost is substantially greater than the costs 
normally associated with this type of project.
    (C) The alternative is consistent with the coal recovery provisions 
of Sec.  816.59 of this chapter.
    (iii) Analyze the impacts of the alternatives identified in 
paragraph (d)(1)(ii) of this section on fish, wildlife, and related 
environmental values. The analysis must consider impacts on both 
aquatic and terrestrial ecosystems.
    (A) For every alternative that proposes placement of coal mine 
waste in a perennial or intermittent stream, the analysis required 
under paragraph (d)(1)(iii) of this section must include an evaluation 
of impacts on the physical, chemical, and biological characteristics of 
the stream downstream of the proposed refuse pile or coal mine waste 
impoundment, including seasonal variations in temperature and volume, 
changes in stream turbidity or sedimentation, the degree to which the

[[Page 75877]]

coal mine waste may introduce or increase contaminants, and the effects 
on aquatic organisms and the wildlife that is dependent upon the 
stream.
    (B) If you have prepared an analysis of alternatives for the 
proposed impoundment or refuse pile under 40 CFR 230.10 to meet Clean 
Water Act requirements, you may initially submit a copy of that 
analysis in lieu of the analysis required under paragraph 
(d)(1)(iii)(A) of this section. The regulatory authority will determine 
the extent to which that analysis satisfies the requirements of 
paragraph (d)(1)(iii)(A) of this section.
    (iv) Select the alternative with the least overall adverse impact 
on fish, wildlife, and related environmental values, including adverse 
impacts on water quality and aquatic and terrestrial ecosystems.
    (2) Design requirements for refuse piles. Refuse piles must be 
designed to comply with the requirements of Sec. Sec.  816.81 and 
816.83 of this chapter.
    (3) Design requirements for impoundments and impounding structures. 
Impounding structures constructed of or intended to impound coal mine 
waste must be designed to comply with the requirements of Sec. Sec.  
816.81 and 816.84 of this chapter, which incorporate the requirements 
of paragraphs (a) and (c) of Sec.  816.49 of this chapter. In 
addition,--
    (i) The plan for each structure that meets the criteria of Sec.  
77.216(a) of this title must comply with the requirements of Sec.  
77.216-2 of this title; and
    (ii) Each plan for a coal mine waste impoundment must contain the 
results of a geotechnical investigation to determine the structural 
competence of the foundation that will support the proposed impounding 
structure and the impounded material. An engineer or engineering 
geologist must plan and supervise the geotechnical investigation. In 
planning the investigation, the engineer or geologist must--
    (A) Determine the number, location, and depth of borings and test 
pits using current prudent engineering practice for the size of the 
impoundment and the impounding structure, the quantity of material to 
be impounded, and subsurface conditions.
    (B) Consider the character of the overburden and bedrock, the 
proposed abutment sites for the impounding structure, and any adverse 
geotechnical conditions that may affect the particular impoundment.
    (C) Identify all springs, seepage, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed impoundment.
    (D) Consider the possibility of mudflows, rock-debris falls, or 
other landslides into the impoundment or impounded material.
0
6. Add Sec.  780.28 to read as follows:


Sec.  780.28  Activities in or adjacent to perennial or intermittent 
streams.

    (a) Applicability. (1) In general. Except as otherwise provided in 
paragraph (a)(2) of this section, this section applies to applications 
to conduct surface mining activities in perennial or intermittent 
streams or on the surface of lands within 100 feet, measured 
horizontally, of perennial or intermittent streams.
    (2) Exceptions. (i) Coal preparation plants not located within the 
permit area of a mine. This section does not apply to applications 
under Sec.  785.21 of this chapter for coal preparation plants that are 
not located within the permit area of a mine.
    (ii) Stream-channel diversions. Paragraphs (b) through (e) of this 
section do not apply to diversions of perennial or intermittent 
streams, which are governed by Sec.  780.29 of this part and Sec.  
816.43 of this chapter.
    (b) Application requirements for surface mining activities in a 
perennial or intermittent stream. If you propose to conduct one or more 
of the activities listed in paragraphs (b)(2) through (b)(4) of Sec.  
816.57 of this chapter in a perennial or intermittent stream, your 
application must demonstrate that--
    (1) Avoiding disturbance of the stream is not reasonably possible; 
and
    (2) The proposed activities will comply with all applicable 
requirements in paragraphs (b) and (c) of Sec.  816.57 of this chapter.
    (c) Application requirements for surface mining activities within 
100 feet of a perennial or intermittent stream. If you propose to 
conduct surface mining activities within 100 feet of a perennial or 
intermittent stream, but not in the stream itself, and those activities 
would occur on land subject to the buffer requirement of Sec.  
816.57(a)(1) of this chapter, your application must--
    (1) Demonstrate that avoiding disturbance of land within 100 feet 
of the stream either is not reasonably possible or is not necessary to 
meet the fish and wildlife and hydrologic balance protection 
requirements of the regulatory program;
    (2) Identify any lesser buffer that you propose to implement 
instead of maintaining a 100-foot undisturbed buffer between surface 
mining activities and the perennial or intermittent stream; and
    (3) Explain how the lesser buffer, together with any other 
protective measures that you propose to implement, constitute the best 
technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible, as 
required by Sec. Sec.  780.21(h) and 816.41(d)(1) of this chapter; and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, as required by 
Sec. Sec.  780.16(b) and 816.97(a) of this chapter.
    (d) Approval requirements for activities in a perennial or 
intermittent stream. Before approving any surface mining activities in 
a perennial or intermittent stream, the regulatory authority must--
    (1) Find in writing that--
    (i) Avoiding disturbance of the stream is not reasonably possible; 
and
    (ii) The plans submitted with the application meet all applicable 
requirements in paragraphs (b) and (c) of Sec.  816.57 of this chapter.
    (2) Include a permit condition requiring a demonstration of 
compliance with the Clean Water Act in the manner specified in Sec.  
816.57(a)(2) of this chapter before the permittee may conduct any 
activities in a perennial or intermittent stream that require 
authorization or certification under the Clean Water Act.
    (e) Approval requirements for activities within 100 feet of a 
perennial or intermittent stream. Before approving any surface mining 
activities that would disturb the surface of land subject to the buffer 
requirement of Sec.  816.57(a)(1) of this chapter, the regulatory 
authority must find in writing that--
    (1) Avoiding disturbance of the surface of land within 100 feet of 
the stream either is not reasonably possible or is not necessary to 
meet the fish and wildlife and hydrologic balance protection 
requirements of the regulatory program; and
    (2) The measures proposed under paragraphs (c)(2) and (c)(3) of 
this section constitute the best technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible, as 
required by Sec. Sec.  780.21(h) and 816.41(d)(1) of this chapter; and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, as required by 
Sec. Sec.  780.16(b) and 816.97(a) of this chapter.

[[Page 75878]]

    (f) Relationship to the Clean Water Act. (1) In all cases, your 
application must identify the authorizations and certifications that 
you anticipate will be needed under sections 401, 402, and 404 of the 
Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps 
that you have taken or will take to procure those authorizations and 
certifications.
    (2) The regulatory authority will process your application and may 
issue the permit before you obtain all necessary authorizations and 
certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., 
provided your application meets all applicable requirements of 
subchapter G of this chapter. However, issuance of a permit does not 
authorize you to initiate any activities for which Clean Water Act 
authorization or certification is required. Information submitted and 
analyses conducted under subchapter G of this chapter may inform the 
agency responsible for authorizations and certifications under sections 
401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 
1344, but they are not a substitute for the reviews, authorizations, 
and certifications required under those sections of the Clean Water 
Act.

0
7. Revise Sec.  780.35 to read as follows:


Sec.  780.35  Disposal of excess spoil.

    (a) If you, the permit applicant, propose to generate excess spoil 
as part of your operation, you must include the following items in your 
application--
    (1) Demonstration of minimization of excess spoil. A demonstration, 
prepared to the satisfaction of the regulatory authority, that the 
operation has been designed to minimize, to the extent possible, the 
volume of excess spoil that the operation will generate, thus ensuring 
that spoil is returned to the mined-out area to the extent possible, 
taking into consideration applicable regulations concerning restoration 
of the approximate original contour, safety, stability, and 
environmental protection and the needs of the proposed postmining land 
use.
    (2) Capacity demonstration. A demonstration, prepared to the 
satisfaction of the regulatory authority, that the designed maximum 
cumulative volume of all proposed excess spoil fills within the permit 
area is no larger than the capacity needed to accommodate the 
anticipated cumulative volume of excess spoil that the operation will 
generate, as approved by the regulatory authority under paragraph 
(a)(1) of this section.
    (3) Discussion of how you will address impacts to perennial and 
intermittent streams and related environmental values. You must design 
the operation to avoid placement of excess spoil in or within 100 feet 
of a perennial or intermittent stream to the extent possible. If 
avoidance is not possible, you must--
    (i) Explain, to the satisfaction of the regulatory authority, why 
an alternative that does not involve placement of excess spoil in or 
within 100 feet of a perennial or intermittent stream is not reasonably 
possible.
    (ii) Identify a reasonable range of alternatives that vary with 
respect to the number, size, location, and configuration of proposed 
fills. This provision does not require identification of all potential 
alternatives. You need identify only those reasonably possible 
alternatives that are likely to differ significantly in terms of 
impacts on fish, wildlife, and related environmental values. An 
alternative is reasonably possible if it meets all the following 
criteria:
    (A) The alternative conforms to the safety, engineering, design, 
and construction requirements of the regulatory program;
    (B) The alternative is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one 
alternative may cost somewhat more than a different alternative does 
not necessarily warrant exclusion of the more costly alternative from 
consideration. However, an alternative generally may be considered 
unreasonable if its cost is substantially greater than the costs 
normally associated with this type of project.
    (C) The alternative is consistent with the coal recovery provisions 
of Sec.  816.59 of this chapter.
    (iii) Analyze the impacts of the alternatives identified in 
paragraph (a)(3)(ii) of this section on fish, wildlife, and related 
environmental values. The analysis must consider impacts on both 
terrestrial and aquatic ecosystems.
    (A) For every alternative that proposes placement of excess spoil 
in a perennial or intermittent stream, the analysis must include an 
evaluation of impacts on the physical, chemical, and biological 
characteristics of the stream downstream of the proposed fill, 
including seasonal variations in temperature and volume, changes in 
stream turbidity or sedimentation, the degree to which the excess spoil 
may introduce or increase contaminants, and the effects on aquatic 
organisms and the wildlife that is dependent upon the stream.
    (B) If you have prepared an analysis of alternatives for the 
proposed fill under 40 CFR 230.10 to meet Clean Water Act requirements, 
you may initially submit a copy of that analysis with your application 
in lieu of the analysis required by paragraph (a)(3)(iii)(A) of this 
section. The regulatory authority will determine the extent to which 
that analysis satisfies the analytical requirements of paragraph 
(a)(3)(iii)(A) of this section.
    (iv) Select the alternative with the least overall adverse impact 
on fish, wildlife, and related environmental values, including adverse 
impacts on water quality and aquatic and terrestrial ecosystems.
    (4) Location. Maps and cross-section drawings showing the location 
of all proposed disposal sites and structures. You must locate fills on 
the most moderately sloping and naturally stable areas available, 
unless the regulatory authority approves a different location based 
upon the alternatives analysis under paragraph (a)(3) of this section 
or on other requirements of the Act and this chapter. Whenever 
possible, you must place fills upon or above a natural terrace, bench, 
or berm if that location would provide additional stability and prevent 
mass movement.
    (5) Design plans. Detailed design plans for each structure, 
prepared in accordance with the requirements of this section and 
Sec. Sec.  816.71 through 816.74 of this chapter. You must design the 
fill and appurtenant structures using current prudent engineering 
practices and any additional design criteria established by the 
regulatory authority.
    (6) Geotechnical investigation. The results of a geotechnical 
investigation of each proposed disposal site, with the exception of 
those sites at which spoil will be placed only on a pre-existing bench 
under Sec.  816.74 of this chapter. You must conduct sufficient 
foundation investigations, as well as any necessary laboratory testing 
of foundation material, to determine the design requirements for 
foundation stability for each site. The analyses of foundation 
conditions must take into consideration the effect of underground mine 
workings, if any, upon the stability of the fill and appurtenant 
structures. The information submitted must include--
    (i) The character of the bedrock and any adverse geologic 
conditions in the proposed disposal area.
    (ii) A survey identifying all springs, seepage, and groundwater 
flow observed or anticipated during wet periods in the area of the 
proposed disposal site.
    (iii) A survey of the potential effects of subsidence of subsurface 
strata as a result of past and future mining operations.
    (iv) A technical description of the rock materials to be utilized 
in the

[[Page 75879]]

construction of disposal structures containing rock chimney cores or 
underlain by a rock drainage blanket.
    (v) A stability analysis including, but not limited to, strength 
parameters, pore pressures, and long-term seepage conditions. This 
analysis must be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the design specifications and methods.
    (7) Operation and reclamation plans. Plans for the construction, 
operation, maintenance, and reclamation of all excess spoil disposal 
structures in accordance with the requirements of Sec. Sec.  816.71 
through 816.74 of this chapter.
    (8) Additional requirements for keyway cuts or rock-toe buttresses. 
If keyway cuts or rock-toe buttresses are required under Sec.  
816.71(d) of this chapter, the number, location, and depth of borings 
or test pits, which must be determined according to the size of the 
spoil disposal structure and subsurface conditions. You also must 
provide the engineering specifications used to design the keyway cuts 
or rock-toe buttresses. Those specifications must be based upon the 
stability analysis required under paragraph (a)(7)(v) of this section.
    (b) Design certification. A qualified registered professional 
engineer experienced in the design of earth and rock fills must certify 
that the design of all fills and appurtenant structures meets the 
requirements of this section.

PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM 
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN

0
8. The authority citation for part 784 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.


0
9. Section 784.10 is revised to read as follows:


Sec.  784.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of this part and assigned clearance number 1029-0039. Collection of 
this information is required under section 516(d) of SMCRA, which in 
effect requires applicants for permits for underground coal mines to 
prepare and submit an operation and reclamation plan for coal mining 
activities as part of the application. The regulatory authority uses 
this information to determine whether the plan will achieve the 
reclamation and environmental protection requirements of the Act and 
regulatory program. Without this information, OSM and state regulatory 
authorities could not approve permit applications for underground coal 
mines and related facilities. Persons intending to conduct such 
operations must respond to obtain a benefit. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

0
10. Amend Sec.  784.16 as follows:
0
A. Revise the section heading, paragraph (a) introductory text, 
paragraph (a)(1) introductory text, and paragraph (a)(2);
0
B. Revise paragraph (c)(2) and add paragraph (c)(4);
0
C. Revise paragraph (d); and
0
D. Remove paragraphs (e) and (f).
    The revisions and addition read as follows:


Sec.  784.16  Reclamation plan: Siltation structures, impoundments, and 
refuse piles.

    (a) General. Each application must include a general plan and a 
detailed design plan for each proposed siltation structure, 
impoundment, and refuse pile within the proposed permit area.
    (1) Each general plan must--
* * * * *
    (2)(i) Impoundments meeting the criteria for Significant Hazard 
Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams 
and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005), 
published by the U.S. Department of Agriculture, Natural Resources 
Conservation Service, must comply with the requirements of this section 
for structures that meet the criteria in Sec.  77.216(a) of this title. 
Technical Release No.60 (TR-60) is hereby incorporated by reference. 
The Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
review and download the incorporated document from the Natural 
Resources Conservation Service's Web site at http://www.info.usda.gov/scripts/lpsiis.dll/TR/TR_210_60.htm. You may inspect and obtain a 
copy of this document which is on file at the Administrative Record 
Room, Office of Surface Mining Reclamation and Enforcement, 1951 
Constitution Avenue, NW., Washington, DC 20240. For information on the 
availability of this document at OSM, call 202-208-2823. You also may 
inspect a copy of this document at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (ii) Each detailed design plan for a structure that meets the 
criteria in Sec.  77.216(a) of this title must--
    (A) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (B) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (C) Describe the operation and maintenance requirements for each 
structure; and
    (D) Describe the timetable and plans to remove each structure, if 
appropriate.
* * * * *
    (c) * * *
    (2) Each plan for an impoundment meeting the criteria in Sec.  
77.216(a) of this title must comply with the requirements of Sec.  
77.216-2 of this title. The plan required to be submitted to the 
District Manager of MSHA under Sec.  77.216 of this title must be 
submitted to the regulatory authority as part of the permit 
application.
* * * * *
    (4) If the structure meets the Significant Hazard Class or High 
Hazard Class criteria for dams in TR-60 or meets the criteria of Sec.  
77.216(a) of this chapter, each plan must include a stability analysis 
of the structure. The stability analysis must include, but not be 
limited to, strength parameters, pore pressures, and long-term seepage 
conditions. The plan also must contain a description of each 
engineering design assumption and calculation with a discussion of each 
alternative considered in selecting the specific design parameters and 
construction methods.
    (d) Coal mine waste impoundments and refuse piles. If you, the 
permit applicant, propose to place coal mine waste in a refuse pile or 
impoundment, or if you plan to use coal mine waste to construct an 
impounding structure, you must comply with the applicable requirements 
in paragraphs (d)(1) through (d)(3) of this section.
    (1) Addressing impacts to perennial and intermittent streams and 
related environmental values. You must design the operation to avoid 
placement of coal mine waste in or within 100 feet of a perennial or 
intermittent stream to the extent possible. If avoidance is not 
possible, you must--

[[Page 75880]]

    (i) Explain, to the satisfaction of the regulatory authority, why 
an alternative coal mine waste disposal method or an alternative 
location or configuration that does not involve placement of coal mine 
waste in or within 100 feet of a perennial or intermittent stream is 
not reasonably possible.
    (ii) Identify a reasonable range of alternative locations or 
configurations for any proposed refuse piles or coal mine waste 
impoundments. This provision does not require identification of all 
potential alternatives. You need identify only those reasonably 
possible alternatives that are likely to differ significantly in terms 
of impacts on fish, wildlife, and related environmental values. An 
alternative is reasonably possible if it meets all the following 
criteria:
    (A) The alternative conforms to the safety, engineering, design, 
and construction requirements of the regulatory program.
    (B) The alternative is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one 
alternative may cost somewhat more than a different alternative does 
not necessarily warrant exclusion of the more costly alternative from 
consideration. However, an alternative generally may be considered 
unreasonable if its cost is substantially greater than the costs 
normally associated with this type of project.
    (C) The alternative is consistent with the coal recovery provisions 
of Sec.  817.59 of this chapter.
    (iii) Analyze the impacts of the alternatives identified in 
paragraph (d)(1)(ii) of this section on fish, wildlife, and related 
environmental values. The analysis must consider impacts on both 
aquatic and terrestrial ecosystems.
    (A) For every alternative that proposes placement of coal mine 
waste in a perennial or intermittent stream, the analysis must include 
an evaluation of impacts on the physical, chemical, and biological 
characteristics of the stream downstream of the proposed refuse pile or 
coal mine waste impoundment, including seasonal variations in 
temperature and volume, changes in stream turbidity or sedimentation, 
the degree to which the coal mine waste may introduce or increase 
contaminants, and the effects on aquatic organisms and the wildlife 
that is dependent upon the stream.
    (B) If you have prepared an analysis of alternatives for the 
proposed impoundment or refuse pile under 40 CFR 230.10 to meet Clean 
Water Act requirements, you may initially submit a copy of that 
analysis in lieu of the analysis required under paragraph 
(d)(1)(iii)(A) of this section. The regulatory authority will determine 
the extent to which that analysis satisfies the requirements of 
paragraph (d)(1)(iii)(A) of this section.
    (iv) Select the alternative with the least overall adverse impact 
on fish, wildlife, and related environmental values, including adverse 
impacts on water quality and aquatic and terrestrial ecosystems.
    (2) Design requirements for refuse piles. Refuse piles must be 
designed to comply with the requirements of Sec. Sec.  817.81 and 
817.83 of this chapter.
    (3) Design requirements for impoundments and impounding structures. 
Impounding structures constructed of or intended to impound coal mine 
waste must be designed to comply with the requirements of Sec. Sec.  
817.81 and 817.84 of this chapter, which incorporate the requirements 
of paragraphs (a) and (c) of Sec.  817.49 of this chapter. In 
addition,--
    (i) The plan for each structure that meets the criteria of Sec.  
77.216(a) of this title must comply with the requirements of Sec.  
77.216-2 of this title; and
    (ii) Each plan for a coal mine waste impoundment must contain the 
results of a geotechnical investigation to determine the structural 
competence of the foundation that will support the proposed impounding 
structure and the impounded material. An engineer or engineering 
geologist must plan and supervise the geotechnical investigation. In 
planning the investigation, the engineer or geologist must--
    (A) Determine the number, location, and depth of borings and test 
pits using current prudent engineering practice for the size of the 
impoundment and the impounding structure, the quantity of material to 
be impounded, and subsurface conditions.
    (B) Consider the character of the overburden and bedrock, the 
proposed abutment sites for the impounding structure, and any adverse 
geotechnical conditions that may affect the particular impoundment.
    (C) Identify all springs, seepage, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed impoundment.
    (D) Consider the possibility of mudflows, rock-debris falls, or 
other landslides into the impoundment or impounded material.

0
11. Revise Sec.  784.19 to read as follows:


Sec.  784.19  Disposal of excess spoil.

    (a) If you, the permit applicant, propose to generate excess spoil 
as part of your operation, you must include the following items in your 
application--
    (1) Demonstration of minimization of excess spoil. A demonstration, 
prepared to the satisfaction of the regulatory authority, that the 
operation has been designed to minimize, to the extent possible, the 
volume of excess spoil that the operation will generate, thus ensuring 
that spoil is returned to the mined-out area to the extent possible, 
taking into consideration applicable regulations concerning restoration 
of the approximate original contour, safety, stability, and 
environmental protection and the needs of the proposed postmining land 
use.
    (2) Capacity demonstration. A demonstration, prepared to the 
satisfaction of the regulatory authority, that the designed maximum 
cumulative volume of all proposed excess spoil fills within the permit 
area is no larger than the capacity needed to accommodate the 
anticipated cumulative volume of excess spoil that the operation will 
generate, as approved by the regulatory authority under paragraph 
(a)(1) of this section.
    (3) Discussion of how you will address impacts to perennial and 
intermittent streams and related environmental values. You must design 
the operation to avoid placement of excess spoil in or within 100 feet 
of a perennial or intermittent stream to the extent possible. If 
avoidance is not possible, you must--
    (i) Explain, to the satisfaction of the regulatory authority, why 
an alternative that does not involve placement of excess spoil in or 
within 100 feet of a perennial or intermittent stream is not reasonably 
possible.
    (ii) Identify a reasonable range of alternatives that vary with 
respect to the number, size, location, and configuration of proposed 
fills. This provision does not require identification of all potential 
alternatives. You need identify only those reasonably possible 
alternatives that are likely to differ significantly in terms of 
impacts on fish, wildlife, and related environmental values. An 
alternative is reasonably possible if it meets all the following 
criteria:
    (A) The alternative conforms to the safety, engineering, design, 
and construction requirements of the regulatory program;
    (B) The alternative is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one 
alternative may cost somewhat more than a different alternative does 
not necessarily warrant exclusion of the more costly alternative from 
consideration. However, an alternative generally may be considered 
unreasonable if its cost is substantially

[[Page 75881]]

greater than the costs normally associated with this type of project.
    (C) The alternative is consistent with the coal recovery provisions 
of Sec.  817.59 of this chapter.
    (iii) Analyze the impacts of the alternatives identified in 
paragraph (a)(3)(ii) of this section on fish, wildlife, and related 
environmental values. The analysis must consider impacts on both 
terrestrial and aquatic ecosystems.
    (A) For every alternative that proposes placement of excess spoil 
in a perennial or intermittent stream, the analysis must include an 
evaluation of impacts on the physical, chemical, and biological 
characteristics of the stream downstream of the proposed fill, 
including seasonal variations in temperature and volume, changes in 
stream turbidity or sedimentation, the degree to which the excess spoil 
may introduce or increase contaminants, and the effects on aquatic 
organisms and the wildlife that is dependent upon the stream.
    (B) If you have prepared an analysis of alternatives for the 
proposed fill under 40 CFR 230.10 to meet Clean Water Act requirements, 
you may initially submit a copy of that analysis with your application 
in lieu of the analysis required by paragraph (a)(3)(iii)(A) of this 
section. The regulatory authority will determine the extent to which 
that analysis satisfies the analytical requirements of paragraph 
(a)(3)(iii)(A) of this section.
    (iv) Select the alternative with the least overall adverse impact 
on fish, wildlife, and related environmental values, including adverse 
impacts on water quality and aquatic and terrestrial ecosystems.
    (4) Location. Maps and cross-section drawings showing the location 
of all proposed disposal sites and structures. You must locate fills on 
the most moderately sloping and naturally stable areas available, 
unless the regulatory authority approves a different location based 
upon the alternatives analysis under paragraph (a)(3) of this section 
or on other requirements of the Act and this chapter. Whenever 
possible, you must place fills upon or above a natural terrace, bench, 
or berm if that location would provide additional stability and prevent 
mass movement.
    (5) Design plans. Detailed design plans for each structure, 
prepared in accordance with the requirements of this section and 
Sec. Sec.  817.71 through 817.74 of this chapter. You must design the 
fill and appurtenant structures using current prudent engineering 
practices and any additional design criteria established by the 
regulatory authority.
    (6) Geotechnical investigation. The results of a geotechnical 
investigation of each proposed disposal site, with the exception of 
those sites at which spoil will be placed only on a pre-existing bench 
under Sec.  817.74 of this chapter. You must conduct sufficient 
foundation investigations, as well as any necessary laboratory testing 
of foundation material, to determine the design requirements for 
foundation stability for each site. The analyses of foundation 
conditions must take into consideration the effect of underground mine 
workings, if any, upon the stability of the fill and appurtenant 
structures. The information submitted must include--
    (i) The character of the bedrock and any adverse geologic 
conditions in the proposed disposal area.
    (ii) A survey identifying all springs, seepage, and groundwater 
flow observed or anticipated during wet periods in the area of the 
proposed disposal site.
    (iii) A survey of the potential effects of subsidence of subsurface 
strata as a result of past and future mining operations.
    (iv) A technical description of the rock materials to be utilized 
in the construction of disposal structures containing rock chimney 
cores or underlain by a rock drainage blanket.
    (v) A stability analysis including, but not limited to, strength 
parameters, pore pressures, and long-term seepage conditions. This 
analysis must be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the design specifications and methods.
    (7) Operation and reclamation plans. Plans for the construction, 
operation, maintenance, and reclamation of all excess spoil disposal 
structures in accordance with the requirements of Sec. Sec.  817.71 
through 817.74 of this chapter.
    (8) Additional requirements for keyway cuts or rock-toe buttresses. 
If keyway cuts or rock-toe buttresses are required under Sec.  
817.71(d) of this chapter, the number, location, and depth of borings 
or test pits, which must be determined according to the size of the 
spoil disposal structure and subsurface conditions. You also must 
provide the engineering specifications used to design the keyway cuts 
or rock-toe buttresses. Those specifications must be based upon the 
stability analysis required under paragraph (a)(7)(v) of this section.
    (b) Design certification. A qualified registered professional 
engineer experienced in the design of earth and rock fills must certify 
that the design of all fills and appurtenant structures meets the 
requirements of this section.


0
12. Amend Sec.  784.23 by removing ``817.71(b),'' in paragraph (c) and 
revising paragraph (b)(10) to read as follows:


Sec.  784.23  Operation plan: Maps and plans.

* * * * *
    (b) * * *
    (10) Locations of each siltation structure, permanent water 
impoundment, refuse pile, and coal mine waste impoundment for which 
plans are required by Sec.  784.16 of this part, and the location of 
each fill for the disposal of excess spoil for which plans are required 
under Sec.  784.19 of this part.
* * * * *

0
13. Add Sec.  784.28 to read as follows:


Sec.  784.28  Surface activities in or adjacent to perennial or 
intermittent streams.

    (a) Applicability. (1) In general. Except as otherwise provided in 
paragraph (a)(2) of this section, this section applies to underground 
mining permit applications that propose to conduct surface activities 
in perennial or intermittent streams or on the surface of lands within 
100 feet, measured horizontally, of perennial or intermittent streams.
    (2) Exceptions. (i) Coal preparation plants not located within the 
permit area of a mine. This section does not apply to applications 
under Sec.  785.21 of this chapter for coal preparation plants that are 
not located within the permit area of a mine.
    (ii) Stream-channel diversions. Paragraphs (b) through (e) of this 
section do not apply to diversions of perennial or intermittent 
streams, which are governed by Sec.  784.29 of this part and Sec.  
817.43 of this chapter.
    (b) Application requirements for activities in a perennial or 
intermittent stream. If you propose to conduct one or more of the 
activities listed in paragraphs (b)(2) through (b)(4) of Sec.  817.57 
of this chapter in a perennial or intermittent stream, your application 
must demonstrate that--
    (1) Avoiding disturbance of the stream is not reasonably possible; 
and
    (2) The proposed activities will comply with all applicable 
requirements in paragraphs (b) and (c) of Sec.  817.57 of this chapter.
    (c) Application requirements for surface activities within 100 feet 
of a perennial or intermittent stream. If you propose to conduct 
surface activities within 100 feet of a perennial or intermittent 
stream, but not in the stream itself, and those activities would occur 
on the surface of land subject to

[[Page 75882]]

the buffer requirement of Sec.  817.57(a)(1) of this chapter, your 
application must--
    (1) Demonstrate that avoiding disturbance of land within 100 feet 
of the stream either is not reasonably possible or is not necessary to 
meet the fish and wildlife and hydrologic balance protection 
requirements of the regulatory program;
    (2) Identify any lesser buffer that you propose to implement 
instead of maintaining a 100-foot undisturbed buffer between surface 
activities and the perennial or intermittent stream; and
    (3) Explain how the lesser buffer, together with any other 
protective measures that you propose to implement, constitute the best 
technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible, as 
required by Sec. Sec.  784.14(g) and 817.41(d)(1) of this chapter; and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, as required by 
Sec. Sec.  784.21(b) and 817.97(a) of this chapter.
    (d) Approval requirements for activities in a perennial or 
intermittent stream. Before approving any surface activities in a 
perennial or intermittent stream, the regulatory authority must--
    (1) Find in writing that--
    (i) Avoiding disturbance of the stream is not reasonably possible; 
and
    (ii) The plans submitted with the application meet all applicable 
requirements in paragraphs (b) and (c) of Sec.  817.57 of this chapter.
    (2) Include a permit condition requiring a demonstration of 
compliance with the Clean Water Act in the manner specified in Sec.  
817.57(a)(2) of this chapter before the permittee may conduct any 
activities in a perennial or intermittent stream that require 
authorization or certification under the Clean Water Act.
    (e) Approval requirements for surface activities within 100 feet of 
a perennial or intermittent stream. Before approving any surface 
activities that would disturb the surface of land subject to the buffer 
requirement of Sec.  817.57(a)(1) of this chapter, the regulatory 
authority must find in writing that--
    (1) Avoiding disturbance of the surface of land within 100 feet of 
the stream either is not reasonably possible or is not necessary to 
meet the fish and wildlife and hydrologic balance protection 
requirements of the regulatory program; and
    (2) The measures proposed under paragraphs (c)(2) and (c)(3) of 
this section constitute the best technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible, as 
required by Sec. Sec.  784.14(g) and 817.41(d)(1) of this chapter; and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, as required by 
Sec. Sec.  784.21(b) and 817.97(a) of this chapter.
    (f) Relationship to the Clean Water Act. (1) In all cases, your 
application must identify the authorizations and certifications that 
you anticipate will be needed under sections 401, 402, and 404 of the 
Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps 
that you have taken or will take to procure those authorizations and 
certifications.
    (2) The regulatory authority will process your application and may 
issue the permit before you obtain all necessary authorizations and 
certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., 
provided your application meets all applicable requirements of 
subchapter G of this chapter. However, issuance of a permit does not 
authorize you to initiate any activities for which Clean Water Act 
authorization or certification is required. Information submitted and 
analyses conducted under subchapter G of this chapter may inform the 
agency responsible for authorizations and certifications under sections 
401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 
1344, but they are not a substitute for the reviews, authorizations, 
and certifications required under those sections of the Clean Water 
Act.

PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING 
ACTIVITIES

0
14. The authority citation for part 816 is revised to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
15. Section 816.10 is revised to read as follows:


Sec.  816.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of this part and assigned clearance number 1029-0047. Collection of 
this information is required under section 515 of SMCRA, which provides 
that permittees conducting surface coal mining and reclamation 
operations must meet all applicable performance standards of the 
regulatory program approved under the Act. The regulatory authority 
uses the information collected to ensure that surface mining activities 
are conducted in compliance with the requirements of the applicable 
regulatory program. Persons intending to conduct such operations must 
respond to obtain a benefit. A Federal agency may not conduct or 
sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.


0
16. In Sec.  816.11, revise paragraph (e) to read as follows:


Sec.  816.11  Signs and markers.

* * * * *
    (e) Buffer markers. The boundaries of any buffer to be maintained 
between surface mining activities and a perennial or intermittent 
stream in accordance with Sec. Sec.  780.28 and 816.57 of this chapter 
must be clearly marked to avoid disturbance by surface mining 
activities.
* * * * *

0
17. Amend Sec.  816.43 as follows:
0
A. Remove the last sentence of paragraph (a)(3);
0
B. Redesignate paragraph (a)(4) as paragraph (a)(5) and add a new 
paragraph (a)(4);
0
C. Revise paragraphs (b)(1) and (b)(4); and
0
D. Add paragraph (b)(5).
    The revisions and additions will read as follows:


Sec. 816.43  Diversions.

    (a) * * *
    (4) A permanent diversion or a stream channel restored after the 
completion of mining must be designed and constructed so as to restore 
or approximate the premining characteristics of the original stream 
channel, including any natural riparian vegetation, to promote the 
recovery and enhancement of the aquatic habitat.
* * * * *
    (b) * * *
    (1) The regulatory authority may approve the diversion of perennial 
or intermittent streams within the permit area if the diversion is 
located and designed to minimize adverse impacts on fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available. The permittee must construct and 
maintain the diversion in accordance with the approved design.
* * * * *

[[Page 75883]]

    (4) A permanent stream-channel diversion or a stream channel 
restored after the completion of mining must be designed and 
constructed using natural channel design techniques so as to restore or 
approximate the premining characteristics of the original stream 
channel, including the natural riparian vegetation and the natural 
hydrological characteristics of the original stream, to promote the 
recovery and enhancement of the aquatic habitat and to minimize adverse 
alteration of stream channels on and off the site, including channel 
deepening or enlargement, to the extent possible.
    (5) A qualified registered professional engineer must separately 
certify both the design and construction of all diversions of perennial 
and intermittent streams and all stream restorations. The design 
certification must certify that the design meets the design 
requirements of this section and any design criteria set by the 
regulatory authority. The construction certification must certify that 
the stream-channel diversion or stream restoration meets all 
construction requirements of this section and is in accordance with the 
approved design.
* * * * *


Sec.  816.46  [Amended]

0
18. In Sec.  816.46, remove paragraph (b)(2) and redesignate paragraphs 
(b)(3) through (b)(6) as (b)(2) through (b)(5), respectively.
0
19. Revise Sec.  816.57 to read as follows:


Sec.  816.57  Hydrologic balance: Activities in or adjacent to 
perennial or intermittent streams.

    (a)(1) Buffer requirement. Except as provided in paragraph (b) of 
this section and consistent with paragraph (a)(2) of this section, you, 
the permittee or operator, may not conduct surface mining activities 
that would disturb the surface of land within 100 feet, measured 
horizontally, of a perennial or intermittent stream, unless the 
regulatory authority authorizes you to do so under Sec.  780.28(e) of 
this chapter.
    (2) Clean Water Act requirements. Surface mining activities, 
including those activities in paragraphs (b)(1) through (b)(4) of this 
section, may be authorized in perennial or intermittent streams only 
where those activities would not cause or contribute to the violation 
of applicable State or Federal water quality standards developed 
pursuant to the Clean Water Act, as determined through certification 
under section 401 of the Clean Water Act or a permit under section 402 
or 404 of the Clean Water Act.
    (b) Exception. The buffer requirement of paragraph (a) of this 
section does not apply to those segments of a perennial or intermittent 
stream for which the regulatory authority, in accordance with Sec.  
780.28(d) of this chapter or Sec.  816.43(b)(1) of this part, approves 
one or more of the activities listed in paragraphs (b)(1) through 
(b)(4) of this section.
    (1) Diversion of a perennial or intermittent stream. You must 
comply with all other applicable requirements of the regulatory 
program, including the requirements of Sec.  816.43(b) of this part for 
the permanent or temporary diversion of a perennial or intermittent 
stream.
    (2) Placement of bridge abutments, culverts, or other structures in 
or within 100 feet of a perennial or intermittent stream to facilitate 
crossing of the stream by roads, railroads, conveyors, pipelines, 
utilities, or similar facilities. You must comply with all other 
applicable requirements of the regulatory program, including the 
requirements of Sec. Sec.  816.150, 816.151, and 816.181 of this part, 
as appropriate.
    (3) Construction of sedimentation pond embankments in a perennial 
or intermittent stream. This provision extends to the pool or storage 
area created by the embankment. You must comply with all other 
applicable requirements of the regulatory program, including the 
requirements of Sec.  816.45(a) of this part. Under Sec.  816.56 of 
this part, you must remove and reclaim all sedimentation pond 
embankments before abandoning the permit area or seeking final bond 
release unless the regulatory authority approves retention of the pond 
as a permanent impoundment under Sec.  816.49(b) of this part and 
provisions have been made for sound future maintenance by the permittee 
or the landowner in accordance with Sec.  800.40(c)(2) of this chapter.
    (4) Construction of excess spoil fills and coal mine waste disposal 
facilities in a perennial or intermittent stream. You must comply with 
all other applicable requirements of the regulatory program, including 
the requirements of paragraphs (a) and (f) of Sec.  816.71 of this part 
for excess spoil fills and the requirements of Sec. Sec.  816.81(a), 
816.83(a), and 816.84 of this part for coal mine waste disposal 
facilities.
    (c) Additional clarifications. All surface mining activities 
conducted in or within 100 feet of a perennial or intermittent stream 
must comply with paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of 
the Act and the regulations implementing those provisions of the Act, 
including--
    (1) The requirement in Sec.  816.41(d)(1) of this part that surface 
mining activities be conducted according to the plan approved under 
Sec.  780.21(h) of this chapter and that earth materials, ground-water 
discharges, and runoff be handled in a manner that prevents, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area; and otherwise prevents water pollution.
    (2) The requirement in Sec.  816.45(a) that appropriate sediment 
control measures be designed, constructed, and maintained using the 
best technology currently available to prevent, to the extent possible, 
additional contributions of sediment to streamflow or to runoff outside 
the permit area.
    (3) The requirement in Sec.  816.97(a) of this part that the 
operator must, to the extent possible using the best technology 
currently available, minimize disturbances and adverse impacts on fish 
and wildlife and related environmental values and achieve enhancement 
of those resources where practicable.
    (4) The requirement in Sec.  816.97(f) of this part that the 
operator avoid disturbances to, enhance where practicable, restore, or 
replace wetlands, habitats of unusually high value for fish and 
wildlife, and riparian vegetation along rivers and streams and 
bordering ponds and lakes.

0
20. In Sec.  816.71, revise paragraphs (a) through (d) to read as 
follows:


Sec.  816.71  Disposal of excess spoil: General requirements.

    (a) General. You, the permittee or operator, must place excess 
spoil in designated disposal areas within the permit area in a 
controlled manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (2) Ensure mass stability and prevent mass movement during and 
after construction;
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use; and
    (4) Minimize disturbances to and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, using the best 
technology currently available.
    (b) Static safety factor. The fill must be designed and constructed 
to attain a minimum long-term static safety factor of 1.5. The 
foundation and abutments of

[[Page 75884]]

the fill must be stable under all conditions of construction.
    (c) Compliance with permit. You, the permittee or operator, must 
construct the fill in accordance with the design and plans submitted 
under Sec.  780.35 of this chapter and approved as part of the permit.
    (d) Special requirement for steep-slope conditions. When the slope 
in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope 
designated by the regulatory authority based on local conditions, you, 
the permittee or operator, must construct keyway cuts (excavations to 
stable bedrock) or rock-toe buttresses to ensure fill stability.
* * * * *

PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND 
MINING ACTIVITIES

0
21. The authority citation for part 817 is revised to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
22. Section 817.10 is revised to read as follows:


Sec.  817.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of this part and assigned clearance number 1029-0047. Collection of 
this information is required under section 516 of SMCRA, which provides 
that permittees conducting underground coal mining operations must meet 
all applicable performance standards of the regulatory program approved 
under the Act. The regulatory authority uses the information collected 
to ensure that surface mining activities are conducted in compliance 
with the requirements of the applicable regulatory program. Persons 
intending to conduct such operations must respond to obtain a benefit. 
A Federal agency may not conduct or sponsor, and you are not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.

0
23. In Sec.  817.11, revise paragraph (e) to read as follows:


Sec.  817.11  Signs and markers.

* * * * *
    (e) Buffer markers. The boundaries of any buffer to be maintained 
between surface activities and a perennial or intermittent stream in 
accordance with Sec. Sec.  784.28 and 817.57 of this chapter must be 
clearly marked to avoid disturbance by surface operations and 
facilities.
* * * * *
0
24. Amend Sec.  817.43 as follows:
0
A. Remove the last sentence of paragraph (a)(3);
0
B. Redesignate paragraph (a)(4) as paragraph (a)(5) and add a new 
paragraph (a)(4);
0
C. Revise paragraphs (b)(1) and (b)(4); and
0
D. Add paragraph (b)(5).
    The revisions and additions will read as follows:


Sec.  817.43  Diversions.

    (a) * * *
    (4) A permanent diversion or a stream channel restored after the 
completion of mining must be designed and constructed so as to restore 
or approximate the premining characteristics of the original stream 
channel, including any natural riparian vegetation, to promote the 
recovery and enhancement of the aquatic habitat.
* * * * *
    (b) * * *
    (1) The regulatory authority may approve the diversion of perennial 
or intermittent streams within the permit area if the diversion is 
located and designed to minimize adverse impacts on fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available. The permittee must construct and 
maintain the diversion in accordance with the approved design.
* * * * *
    (4) A permanent stream-channel diversion or a stream channel 
restored after the completion of mining must be designed and 
constructed using natural channel design techniques so as to restore or 
approximate the premining characteristics of the original stream 
channel, including the natural riparian vegetation and the natural 
hydrological characteristics of the original stream, to promote the 
recovery and enhancement of the aquatic habitat and to minimize adverse 
alteration of stream channels on and off the site, including channel 
deepening or enlargement, to the extent possible.
    (5) A qualified registered professional engineer must separately 
certify both the design and construction of all diversions of perennial 
and intermittent streams and all stream restorations. The design 
certification must certify that the design meets the design 
requirements of this section and any design criteria set by the 
regulatory authority. The construction certification must certify that 
the stream-channel diversion or stream restoration meets all 
construction requirements of this section and is in accordance with the 
approved design.
* * * * *


Sec.  817.46  [Amended]

0
25. In Sec.  817.46, remove paragraph (b)(2) and redesignate paragraphs 
(b)(3) through (b)(6) as (b)(2) through (b)(5), respectively.
0
26. Revise Sec.  817.57 to read as follows:


Sec.  817.57  Hydrologic balance: Surface activities in or adjacent to 
perennial or intermittent streams.

    (a)(1) Buffer requirement. Except as provided in paragraph (b) of 
this section and consistent with paragraph (a)(2) of this section, you, 
the permittee or operator, may not conduct surface activities that 
would disturb the surface of land within 100 feet, measured 
horizontally, of a perennial or intermittent stream, unless the 
regulatory authority authorizes you to do so under Sec.  784.28(e) of 
this chapter.
    (2) Clean Water Act requirements. Surface activities, including 
those activities in paragraphs (b)(1) through (b)(4) of this section, 
may be authorized in perennial or intermittent streams only where those 
activities would not cause or contribute to the violation of applicable 
State or Federal water quality standards developed pursuant to the 
Clean Water Act, as determined through certification under section 401 
of the Clean Water Act or a permit under section 402 or 404 of the 
Clean Water Act.
    (b) Exception. The buffer requirement of paragraph (a) of this 
section does not apply to those segments of a perennial or intermittent 
stream for which the regulatory authority, in accordance with Sec.  
784.28(d) of this chapter or Sec.  817.43(b)(1) of this part, approves 
one or more of the activities listed in paragraphs (b)(1) through 
(b)(4) of this section.
    (1) Diversion of a perennial or intermittent stream. You must 
comply with all other applicable requirements of the regulatory 
program, including the requirements of Sec.  817.43(b) of this part for 
the permanent or temporary diversion of a perennial or intermittent 
stream.
    (2) Placement of bridge abutments, culverts, or other structures in 
or within 100 feet of a perennial or intermittent stream to facilitate 
crossing of the stream by roads, railroads, conveyors, pipelines, 
utilities, or similar facilities. You must comply with all other 
applicable requirements of the regulatory program, including the 
requirements of Sec. Sec.  817.150, 817.151, and 817.181 of this part, 
as appropriate.
    (3) Construction of sedimentation pond embankments in a perennial 
or intermittent stream. This provision extends to the pool or storage 
area created by the embankment. You must

[[Page 75885]]

comply with all other applicable requirements of the regulatory 
program, including the requirements of Sec.  817.45(a) of this part. 
Under Sec.  817.56 of this part, you must remove and reclaim all 
sedimentation pond embankments before abandoning the permit area or 
seeking final bond release unless the regulatory authority approves 
retention of the pond as a permanent impoundment under Sec.  817.49(b) 
of this part and provisions have been made for sound future maintenance 
by the permittee or the landowner in accordance with Sec.  800.40(c)(2) 
of this chapter.
    (4) Construction of excess spoil fills and coal mine waste disposal 
facilities in a perennial or intermittent stream. You must comply with 
all other applicable requirements of the regulatory program, including 
the requirements of paragraphs (a) and (f) of Sec.  817.71 of this part 
for excess spoil fills and the requirements of Sec. Sec.  817.81(a), 
817.83(a), and 817.84 of this part for coal mine waste disposal 
facilities.
    (c) Additional clarifications. All surface activities conducted in 
or within 100 feet of a perennial or intermittent stream must comply 
with paragraphs (b)(9)(B) and (b)(11) of section 516 of the Act and the 
regulations implementing those provisions of the Act, including--
    (1) The requirement in Sec.  817.41(d)(1) of this part that surface 
activities be conducted according to the plan approved under Sec.  
784.14(g) of this chapter and that earth materials, ground-water 
discharges, and runoff be handled in a manner that prevents, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area; and otherwise prevents water pollution.
    (2) The requirement in Sec.  817.45(a) that appropriate sediment 
control measures be designed, constructed, and maintained using the 
best technology currently available to prevent, to the extent possible, 
additional contributions of sediment to streamflow or to runoff outside 
the permit area.
    (3) The requirement in Sec.  817.97(a) of this part that the 
operator must, to the extent possible using the best technology 
currently available, minimize disturbances and adverse impacts on fish 
and wildlife and related environmental values and achieve enhancement 
of those resources where practicable.
    (4) The requirement in Sec.  817.97(f) of this part that the 
operator avoid disturbances to; enhance where practicable; restore; or 
replace wetlands, habitats of unusually high value for fish and 
wildlife, and riparian vegetation along rivers and streams and 
bordering ponds and lakes.

0
27. In Sec.  817.71, remove paragraph (k) and revise paragraphs (a) 
through (d) to read as follows:


Sec.  817.71  Disposal of excess spoil: General requirements.

    (a) General. You, the permittee or operator, must place excess 
spoil in designated disposal areas within the permit area in a 
controlled manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (2) Ensure mass stability and prevent mass movement during and 
after construction;
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use; and
    (4) Minimize disturbances to and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, using the best 
technology currently available.
    (b) Static safety factor. The fill must be designed and constructed 
to attain a minimum long-term static safety factor of 1.5. The 
foundation and abutments of the fill must be stable under all 
conditions of construction.
    (c) Compliance with permit. You, the permittee or operator, must 
construct the fill in accordance with the design and plans submitted 
under Sec.  784.19 of this chapter and approved as part of the permit.
    (d) Special requirement for steep-slope conditions. When the slope 
in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope 
designated by the regulatory authority based on local conditions, you, 
the permittee or operator, must construct keyway cuts (excavations to 
stable bedrock) or rock-toe buttresses to ensure fill stability.
* * * * *

[FR Doc. E8-29150 Filed 12-11-08; 8:45 am]
BILLING CODE 4310-05-P