[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Rules and Regulations]
[Pages 93066-93445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29958]



[[Page 93065]]

Vol. 81

Tuesday,

No. 244

December 20, 2016

Part IV

Book 2 of 2 Books

Pages 93065-93570





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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 30 CFR Parts 700, 701, 773, et al.



Stream Protection Rule; Final Rule

  Federal Register / Vol. 81 , No. 244 / Tuesday, December 20, 2016 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 700, 701, 773, 774, 777, 779, 780, 783, 784, 785, 800, 
816, 817, 824, and 827

[Docket ID: OSM-2010-0018; S1D1S SS08011000 SX064A000 178S180110; S2D2S 
SS08011000 SX064A000 17X501520]
RIN 1029-AC63


Stream Protection Rule

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

DATES: This rule is effective January 19, 2017.

FOR FURTHER INFORMATION CONTACT: For the final rule: Dennis G. Rice, 
Office of Surface Mining Reclamation and Enforcement, U.S. Department 
of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2829. Kathleen G. Sheehan, Esq., Office of Surface 
Mining Reclamation and Enforcement, U.S. Department of the Interior, 3 
Parkway Center, 2nd Floor, Pittsburgh, Pennsylvania 15220. Telephone: 
412-937-2829.
    For the final environmental impact statement: Robin T. Ferguson, 
Office of Surface Mining Reclamation and Enforcement, U.S. Department 
of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2802.
    For the final regulatory impact analysis: Mark Gehlhar, Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2716.
    For information collection matters: John A. Trelease, Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2716.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Why are we revising our regulations?
III. What opportunity did we provide for public comment on the 
proposed rule and supporting documents?
IV. What general comments did we receive on the proposed rule?
V. Tabular Summaries of Revisions and Organizational Changes
VI. How do our final regulations differ from our proposed 
regulations?
    A. Section 700.11(d): Termination and Reassertion of 
Jurisdiction
    B. Section 701.5: Definitions
    C. Section 701.16: How will the stream protection rule apply to 
existing and future permits and permit applications?
    D. Part 773: Requirements for Permits and Permit Processing
    1. Section 773.5: How must the regulatory authority coordinate 
the permitting process with requirements under other laws?
    2. Section 773.7: How and when will the regulatory authority 
review and make a decision on a permit application?
    3. Section 773.15: What findings must the regulatory authority 
make before approving a permit application?
    4. Section 773.17: What conditions must the regulatory authority 
place on each permit issued?
    5. Section 773.20: What actions must the regulatory authority 
take when a permit is issued on the basis of inaccurate information?
    E. Part 774: Revision; Renewal; Transfer, Assignment, or Sale of 
Permit Rights; Post-Permit Issuance Requirements
    1. Section 774.10: When must the regulatory authority review a 
permit?
    2. Section 774.15: How may I renew a permit?
    F. Part 777: General Content Requirements for Permit 
Applications
    1. Section 777.11: What are the format and content requirements 
for permit applications?
    2. Section 777.13: What requirements apply to the collection, 
analysis, and reporting of technical data and to the use of models?
    3. Section 777.14: What general requirements apply to maps and 
plans?
    4. Section 777.15: What information must my application include 
to be administratively complete?
    G. Part 779: Surface Mining Permit Applications--Minimum 
Requirements for Information on Environmental Resources and 
Conditions
    1. Section 779.1: What does this part do?
    2. Section 779.2: What is the objective of this part?
    3. Why are we removing 30 CFR 779.11 and 779.12?
    4. Section 779.19: What information on vegetation must I include 
in my permit application?
    5. Section 779.20: What information on fish and wildlife 
resources must I include in my permit application?
    6. Section 779.21: What information on soils must I include in 
my permit application?
    7. Section 779.22: What information on land use and productivity 
must I include in my permit application?
    8. Section 779.24: What maps, plans, and cross-sections must I 
submit with my permit application?
    H. Part 780: Surface Mining Permit Applications--Minimum 
Requirements for Reclamation and Operation Plans
    1. Section 780.1: What does this part do?
    2. Section 780.2: What is the objective of this part?
    3. Section 780.12: What information must the reclamation plan 
include?
    4. Section 780.13: What additional maps and plans must I include 
in the reclamation plan?
    5. Why are we removing the provisions for air pollution control 
plans in previous 30 CFR 780.15?
    6. Section 780.16: What must I include in the fish and wildlife 
protection and enhancement plan?
    7. Section 780.19: What baseline information on hydrology, 
geology, and aquatic biology must I provide?
    8. Section 780.20: How must I prepare the determination of the 
probable hydrologic consequences of my proposed operation (PHC 
determination)?

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    9. Section 780.21: What requirements apply to preparation and 
review of the cumulative hydrologic impact assessment (CHIA)?
    10. Section 780.22: What information must I include in the 
hydrologic reclamation plan and what information must I provide on 
alternative water resources?
    11. Section 780.23: What information must I include in plans for 
the monitoring of groundwater, surface water, and the biological 
condition of streams during and after mining?
    12. Section 780.24: What requirements apply to the postmining 
land use?
    13. Section 780.25: What information must I provide for 
siltation structures, impoundments, and refuse piles?
    14. Section 780.26: What special requirements apply to surface 
mining near underground mining?
    15. Section 780.27: What additional permitting requirements 
apply to activities in or through an ephemeral stream?
    16. Section 780.28: What additional permitting requirements 
apply to activities in, through, or adjacent to a perennial or 
intermittent stream?
    17. Section 780.29: What information must I include in the 
surface-water runoff control plan?
    18. Section 780.35: What information must I provide concerning 
the minimization and disposal of excess spoil?
    19. Section 780.37: What information must I provide concerning 
access and haul roads?
    I. Part 783: Underground Mining Permit Applications--Minimum 
Requirements for Information on Environmental Resources and 
Conditions
    1. Section 783.24: What maps, plans, and cross-sections must I 
submit with my permit application?
    2. Section 783.26: May I submit permit application information 
in increments as mining progresses?
    J. Part 784: Underground Mining Permit Applications--Minimum 
Requirements for Reclamation and Operation Plans
    1. Section 784.11: What must I include in the general 
description of my proposed operation?
    2. Section 784.13: What additional maps and plans must I include 
in the reclamation plan?
    3. Section 784.19: What baseline information on hydrology, 
geology, and aquatic biology must I provide?
    4. Section 784.20: How must I prepare the determination of the 
probable hydrologic consequences of my proposed operation (PHC 
determination)?
    5. Section 784.21: What requirements apply to preparation and 
review of the cumulative hydrologic impact assessment (CHIA)?
    6. Section 784.22: What information must I include in the 
hydrologic reclamation plan and what information must I provide on 
alternative water resources?
    7. Section 784.23: What information must I include in my plans 
for the monitoring of groundwater, surface water, and the biological 
condition of streams during and after mining?
    8. Section 784.24: What requirements apply to the postmining 
land use?
    9. Why are we removing the provisions for air pollution plans in 
previous 30 CFR 784.26?
    10. Section 784.26: What information must I provide if I plan to 
return coal processing waste to abandoned underground workings?
    11. Section 780.27: What additional permitting requirements 
apply to activities in or through an ephemeral stream?
    12. Section 784.28: What additional permitting requirements 
apply to activities in, through, or adjacent to a perennial or 
intermittent stream?
    13. Section 784.30: When must I prepare a subsidence control 
plan and what information must that plan include?
    14. Section 784.35: What information must I provide concerning 
the minimization and disposal of excess spoil?
    15. Section 784.40: May I submit permit application information 
in increments as mining progresses?
    16. Why are we removing 30 CFR 784.200?
    K. Part 785: Requirements for Permits for Special Categories of 
Mining
    1. Section 785.14: What special provisions apply to proposed 
mountaintop removal mining operations?
    2. Section 785.16: What special requirements apply to proposed 
variances from approximate original contour restoration requirements 
for steep-slope mining?
    3. Section 785.25: What special provisions apply to proposed 
operations on lands eligible for remining?
    L. Part 800: Bond, Financial Assurance, and Liability Insurance 
Requirements for Surface Coal Mining and Reclamation Operations
    1. How have we revised the definitions in 30 CFR 800.5?
    2. Section 800.9: What requirements apply to alternative bonding 
systems?
    3. Section 800.11: When and how must I file a performance bond?
    4. Section 800.12: What types of performance bond are 
acceptable?
    5. Section 800.13: What is the liability period for a 
performance bond?
    6. Section 800.14: How will the regulatory authority determine 
the amount of performance bond required?
    7. Section 800.15: When must the regulatory authority adjust the 
bond amount and when may I request adjustment of the bond amount?
    8. Section 800.16: What are the general terms and conditions of 
the performance bond?
    9. Why are we removing 30 CFR 800.17?
    10. Section 800.18: What special provisions apply to financial 
guarantees for treatment of long-term discharges?
    11. Section 800.21: What additional requirements apply to 
collateral bonds?
    12. Section 800.23: What additional requirements apply to self-
bonds?
    13. Section 800.30: When may I replace a performance bond or 
financial assurance instrument and when must I do so?
    14. Section 800.40: How do I apply for release of all or part of 
a performance bond?
    15. Section 800.41: How will the regulatory authority process my 
application for bond release?
    16. Section 800.42: What are the criteria for bond release?
    17. Section 800.43: When and how must the regulatory authority 
provide notification of its decision on a bond release application?
    18. Section 800.44: Who may file an objection to a bond release 
application and how must the regulatory authority respond to an 
objection?
    19. Section 800.50: When and how will a performance bond be 
forfeited?
    20. Section 800.60: What liability insurance must I carry?
    21. Section 800.70: What special bonding provisions apply to 
anthracite operations in Pennsylvania?
    M. Part 816: Permanent Program Performance Standards--Surface 
Mining Activities
    1. Section 816.1: What does this part do?
    2. Section 816.2: What is the objective of this part?
    3. Section 816.11: What signs and markers must I post?
    4. Section 816.22: How must I handle topsoil, subsoil, and other 
plant growth media?
    5. Section 816.34: How must I protect the hydrologic balance?
    6. Section 816.35: How must I monitor groundwater?
    7. Section 816.36: How must I monitor surface water?
    8. Section 816.37: How must I monitor the biological condition 
of streams?
    9. Section 816.38: How must I handle acid-forming and toxic-
forming materials?
    10. Section 816.40: What responsibility do I have to replace 
water supplies?
    11. Section 816.41: Under what conditions may I discharge to an 
underground mine?
    12. Section 816.42: What Clean Water Act requirements apply to 
discharges from my operation?
    13. Section 816.43: How must I construct and maintain diversions 
and other channels to convey water?
    14. Section 816.45: What sediment control measures must I use?
    15. Section 816.46: What requirements apply to siltation 
structures?
    16. Section 816.47: What requirements apply to discharge 
structures for impoundments?
    17. Section 816.49: What requirements apply to impoundments?
    18. Section 816.55: What must I do with sedimentation ponds, 
diversions, impoundments, and treatment facilities after I no longer 
need them?
    19. Section 816.56: What additional performance standards apply 
to activities in or through an ephemeral stream?
    20. Section 816.57: What additional performance standards apply 
to activities in, through, or adjacent to a perennial or 
intermittent stream?
    21. Section 816.59: How must I maximize coal recovery?

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    22. Section 816.61: Use of Explosives: General Requirements
    23. Section 816.62: Use of Explosives: Preblasting Survey
    24. Section 816.64: Use of Explosives: Blasting Schedule
    25. Section 816.66: Use of Explosives: Blasting Signs, Warnings, 
and Access Control
    26. Section 816.67: Use of Explosives: Control of Adverse 
Effects
    27. Section 816.68: Use of Explosives: Records of Blasting 
Operations
    28. Section 816.71: How must I dispose of excess spoil?
    29. Why are we removing the provisions for rock-core chimney 
drains in 30 CFR 816.72?
    30. Why are we removing the provisions for durable rock fills in 
30 CFR 816.73?
    31. Section 816.74: What special requirements apply to the 
disposal of excess spoil on a preexisting bench?
    32. Section 816.79: What measures must I take to protect 
underground mines in the vicinity of my surface mine?
    33. Section 816.81: How must I dispose of coal mine waste?
    34. Section 816.83: What special requirements apply to coal mine 
waste refuse piles?
    35. Section 816.84: What special requirements apply to coal mine 
waste impounding structures?
    36. Section 816.87: What special requirements apply to burning 
and burned coal mine waste?
    37. Section 816.89: How must I dispose of noncoal mine wastes?
    38. Section 816.95: How must I protect surface areas from wind 
and water erosion?
    39. Section 816.97: How must I protect and enhance fish, 
wildlife, and related environmental values?
    40. Section 816.99: What measures must I take to prevent and 
remediate landslides?
    41. Section 816.100: What are the standards for keeping 
reclamation contemporaneous with mining?
    42. Why are we removing 30 CFR 816.101?
    43. Section 816.102: How must I backfill the mined area and 
configure the land surface?
    44. Section 816.104: What special provisions for backfilling, 
grading, and surface configuration apply to sites with thin 
overburden?
    45. Section 816.105: What special provisions for backfilling, 
grading, and surface configuration apply to sites with thick 
overburden?
    46. Section 816.106: What special provisions for backfilling, 
grading, and surface configuration apply to previously mined areas 
with a preexisting highwall?
    47. Section 816.107: What special provisions for backfilling, 
grading, and surface configuration apply to steep slopes?
    48. Section 816.111: How must I revegetate areas disturbed by 
mining activities?
    49. Why are we removing 30 CFR 816.113 and 816.114?
    50. Section 816.115: How long am I responsible for revegetation 
after planting?
    51. Section 816.116: What are the standards for determining the 
success of revegetation?
    52. Section 816.131: What actions must I take when I temporarily 
cease mining operations?
    53. Section 816.132: What actions must I take when I permanently 
cease mining operations?
    54. Section 816.133: What provisions concerning the postmining 
land use apply to my operation?
    55. Section 816.150: What are the general requirements for haul 
and access roads?
    56. Section 816.151: What additional requirements apply to 
primary roads?
    57. Section 816.180: To what extent must I protect utility 
installations?
    58. Section 816.181: What requirements apply to support 
facilities?
    59. Why are we removing interpretive rule in 30 CFR 816.200?
    N. Part 817: Permanent Program Performance Standards--
Underground Mining Activities
    1. Section 817.11: What signs and markers must I post?
    2. Section 817.34: How must I protect the hydrologic balance?
    3. Section 817.40: What responsibility do I have to replace 
water supplies?
    4. Section 817.44: What restrictions apply to gravity discharges 
from underground mines?
    5. Section 817.57: What additional performance standards apply 
to activities conducted in, through, or adjacent to a perennial or 
intermittent stream?
    6. Section 817.71: How must I dispose of excess spoil?
    7. Section 817.102: How must I backfill surface excavations and 
grade and configure the land surface?
    8. Section 817.121: What measures must I take to prevent, 
control, or correct damage resulting from subsidence?
    9. Why are we removing the interpretive rules in 30 CFR 817.200?
    O. Part 824: Special Permanent Program Performance Standards--
Mountaintop Removal Mining Operations
    P. Part 827: Special Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine
XVII. What effect will this rule have in federal program states and 
on Indian lands?
XVIII. How will this rule affect state regulatory programs?
IX. Procedural Matters and Required Determinations
    A. Regulatory Planning and Review (Executive Orders 12866 and 
13563)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates
    E. Executive Order 12630--Takings
    F. Executive Order 13132--Federalism
    G. Executive Order 12988--Civil Justice Reform
    H. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    I. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Data Quality Act

I. Executive Summary

    Significant advances in scientific knowledge and in mining and 
reclamation techniques have occurred in the more than 30 years that 
have elapsed since the enactment of the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act) \1\ and the adoption of 
federal regulations implementing that law. This rule acknowledges the 
advancements in science, technology, policy, and the law that impact 
coal communities and natural resources, based on our experience and 
engagement with state regulatory authorities, industry, non-
governmental organizations, academia, citizens, and other stakeholders.
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    \1\ 30 U.S.C. 1201 et seq.
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    The rule has the following seven major elements:
     First, the rule defines the term ``material damage to the 
hydrologic balance outside the permit area'' and requires that each 
permit establish the point at which adverse mining-related impacts on 
groundwater and surface water reach an unacceptable level; i.e., the 
point at which adverse impacts from mining would cause material damage 
to the hydrologic balance outside the permit area.
     Second, the rule sets forth how to collect adequate 
premining data about the site of the proposed mining operation and 
adjacent areas to establish a comprehensive baseline that will 
facilitate evaluation of the effects of mining operations.
     Third, the rule outlines how to conduct effective, 
comprehensive monitoring of groundwater and surface water during and 
after both mining and reclamation and during the revegetation 
responsibility period to provide timely information documenting mining-
related changes in water quality and quantity. Similarly, the rule 
addresses the need to require monitoring of the biological condition of 
perennial and certain intermittent streams during and after mining and 
reclamation to evaluate changes in aquatic life. Proper monitoring will 
enable timely detection of any adverse trends and allow timely 
implementation of any necessary corrective measures.

[[Page 93069]]

     Fourth, the rule promotes the protection or restoration of 
perennial and intermittent streams and related resources, especially 
the headwater streams that are critical to maintaining the ecological 
health and productivity of downstream waters.
     Fifth, the rule ensures that permittees and regulatory 
authorities make use of advances in information, technology, science, 
and methodologies related to surface and groundwater hydrology, 
surface-runoff management, stream restoration, soils, and revegetation, 
all of which relate directly or indirectly to protection of water 
resources.
     Sixth, the rule ensures that land disturbed by surface 
coal mining operations is restored to a condition capable of supporting 
the uses that it was capable of supporting before mining or to higher 
or better uses of which there is reasonable likelihood. Soil 
characteristics and the degree and type of revegetation have a 
significant impact on surface-water runoff quantity and quality as well 
as on aquatic life and the terrestrial ecosystems dependent upon 
perennial and intermittent streams. The rule also requires use of 
native species to revegetate reclaimed mine sites unless and until a 
conflicting postmining land use, such as intensive agriculture, is 
implemented.
     Seventh, the rule updates measures to protect threatened 
and endangered species and designated critical habitat under the 
Endangered Species Act of 1973.\2\ It also better explains how the fish 
and wildlife protection and enhancement provisions of SMCRA should be 
implemented.
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    \2\ 16 U.S.C. 1531 et seq.
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    This rule more completely implements SMCRA's permitting 
requirements and performance standards and provides regulatory clarity 
to operators and stakeholders while better achieving the purposes of 
SMCRA as set forth in section 102 of the Act.\3\ In particular, the 
rule more completely realizes the purposes in paragraphs (a), (c), (d), 
and (f) of that section, which include establishing a nationwide 
program to protect society and the environment from the adverse effects 
of surface coal mining operations and assuring that surface coal mining 
operations are conducted in an environmentally protective manner and 
are not conducted where reclamation is not feasible. Furthermore, the 
rule addresses court decisions and strikes the appropriate balance 
between environmental protection, agricultural productivity and the 
Nation's need for coal as an essential source of energy, while 
providing greater regulatory certainty to the mining industry.
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    \3\ 30 U.S.C. 1202.
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Summary of Benefits and Costs

    The final regulatory impact analysis (RIA) for this rule contains a 
detailed discussion of the rule's benefits and costs. We estimate that, 
among other things, the rule's benefits to streams and forests between 
2020 and 2040 will include--
     Restoration of 22 miles of intermittent and perennial 
streams per year.
     Improved water quality in 263 miles of intermittent and 
perennial streams per year downstream of minesites.
     Four miles of intermittent and perennial streams per year 
not being covered by excess spoil fills or coal mine waste facilities.
     Improved reforestation of 2,486 acres of mined land per 
year.
     Avoidance by mining operations of eight acres of forest 
per year.
    In terms of economic impacts, we estimate that the rule will result 
in an average annual employment gain of 156 fulltime equivalents 
between 2020 and 2040. This estimate includes an average annual 
reduction of 124 fulltime equivalents in employment related to coal 
production and an average annual gain of 280 fulltime equivalents in 
industry employment related to implementation of the rule.
    We estimate that the rule will result in an average annual 0.08% 
reduction in coal production between 2020 and 2040, which equates to 
0.7 million tons of coal. That amount includes 0.2 million tons 
produced by surface mining methods (0.04% of the total amount produced 
by surface mining methods) and 0.5 million tons produced by underground 
mining methods (0.14% of the total amount produced by underground 
mining methods). The final RIA projects that this reduction in 
production will be accompanied by an increase in average annual coal 
prices ranging from 0.2% in the Powder River Basin to 1.3% in Central 
Appalachia and the Illinois Basin.
    We estimate that total industry compliance costs per year during 
2020-2040 would average $81 million, which is 0.1% or less of aggregate 
annual industry revenues, ranging from an additional one cent per ton 
of longwall-mined coal on the Colorado Plateau to an additional $1.40 
per ton for surface-mined coal in the Illinois Basin. Of the $81 
million in increased annual costs to industry, surface mining 
operations will bear an estimated $71 million, while underground mining 
operations will absorb $10 million. In the aggregate, state regulatory 
authorities will incur estimated additional costs of $0.5 million per 
year between 2020 and 2040.
    Implementation of this rule will result in reductions in greenhouse 
gas emissions from coal production. Expressed in terms of carbon 
dioxide equivalents, we project that those reductions will total 2.6 
million short tons in 2020. ``Carbon dioxide equivalent'' is a unit 
used to describe the impact of different greenhouse gases on a 
comparative basis by expressing the impact in terms of the amount of 
carbon dioxide that would have the same global warming impact as the 
type and amount of greenhouse gases at issue. We also project that 
implementation of the final rule will result in the annualized benefit 
of $57 million due to the reduced carbon dioxide emissions from fossil 
fuel consumption across the timeframe of the analysis (2020--2040).

II. Why are we revising our regulations?

    Our primary purpose in adopting this rule is to strike a better 
balance between ``protection of the environment and agricultural 
productivity and the Nation's needs for coal as an essential source of 
energy.'' \4\ Specifically, the rule is designed to minimize the 
adverse impacts of surface coal mining operations on surface water, 
groundwater, and site productivity, with particular emphasis on 
protecting or restoring streams, aquatic ecosystems, riparian habitats 
and corridors, native vegetation, and the ability of mined land to 
support the uses that it was capable of supporting before mining. The 
final rule reflects our experience during the more than three decades 
since adoption of the existing regulations, as well as advances in 
scientific knowledge and mining and reclamation techniques during that 
time and consideration of the comments that we received on the proposed 
rule. The final rule more completely implements sections 515(b)(24) and 
516(b)(11) of SMCRA, which provide that, to the extent possible using 
the best technology currently available, surface coal mining and 
reclamation operations must be conducted to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values and 
to achieve enhancement of those resources where practicable.\5\ It also 
updates our regulations concerning compliance with

[[Page 93070]]

the Endangered Species Act of 1973.\6\ In addition, as proposed, we 
have revised and reorganized our regulations for clarity, to make them 
more user-friendly, to remove obsolete and redundant provisions, and to 
implement plain language principles.
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    \4\ 30 U.S.C. 1202(f).
    \5\ See 30 U.S.C. 1265(b)(24) and 1266(b)(11).
    \6\ 16 U.S.C. 1531 et seq.
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    The preamble to the proposed rule sets forth the detailed rationale 
for adoption of this rule and the history of prior rulemaking and 
litigation concerning stream buffer zones and stream protection. See 80 
FR 44436-44585 (Jul. 27, 2015).

Final Environmental Impact Statement (EIS)

    The final EIS for this rule contains an expanded discussion of the 
impacts of mining on the environment. Almost all the literature surveys 
and studies reviewed for this rulemaking process have been published 
since the adoption in 1983 of our principal regulations concerning 
protection of the hydrologic balance \7\ and protection of fish, 
wildlife, and related environmental values,\8\ which underscores the 
need to update our regulations to reflect new scientific understanding 
of impacts associated with coal mining.
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    \7\ 48 FR 43956 (Sept. 26, 1983).
    \8\ 48 FR 30312 (Jun. 30, 1983).
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III. What opportunity did we provide for public comment on the proposed 
rule and supporting documents?

    On July 16, 2015, we announced that the proposed rule, draft 
environmental impact statement (DEIS), and draft regulatory impact 
analysis (DRIA) were available for review at www.regulations.gov, on 
our Web site (www.osmre.gov), and at selected OSMRE offices. On July 
17, 2015, we published a notice in the Federal Register announcing the 
availability of the DEIS for the proposed rule. See 80 FR 42535-42536. 
The notice reiterated that the DEIS was available for review at 
www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the 
notice. The comment period for the DEIS was originally scheduled to 
close on September 15, 2015. On July 27, 2015, we published the 
proposed stream protection rule in the Federal Register. See 80 FR 
44436-44698. That document reiterated that the proposed rule, DEIS, and 
DRIA were available for review at www.regulations.gov, www.osmre.gov, 
and the OSMRE offices listed in the notice. The comment period for the 
proposed rule and DRIA was originally scheduled to close on September 
25, 2015. In response to requests for additional time to review and 
prepare comments on all three documents, we extended the comment period 
for the proposed rule, DEIS, and DRIA through October 26, 2015. See 80 
FR 54590-54591 (Sept. 10, 2015).
    During the public comment period, we held six public hearings on 
the proposed rule in Golden, Colorado (September 1, 2015); Lexington, 
Kentucky (September 3, 2015); St. Charles, Missouri (September 10, 
2015); Pittsburgh, Pennsylvania (September 10, 2015); Big Stone Gap, 
Virginia (September 15, 2015); and Charleston, West Virginia (September 
17, 2015). In addition to the testimony offered at the hearings and 
meetings, we received approximately 94,000 written or electronic 
comments on the proposed rule. In developing the final rule, we 
considered all comments that were germane to the proposed rule. In the 
remainder of this preamble, we summarize the comments received and 
discuss our disposition of those comments and how and why the final 
rule differs from the proposed rule.

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

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

    Many commenters contended that we should have extended the time for 
public review and comment on the proposed rule and supporting 
documents. These commenters generally raised objections about the 
amount of material, primarily the proposed rule and its preamble, the 
DEIS, and the DRIA, all of which were lengthy. The commenters noted 
that we cited many studies, reports and supporting documents, which 
would take time to locate and review. Some commenters claimed that they 
lacked staff to review the material and provide meaningful comments 
within the time provided. These commenters stated that the 102 days we 
provided for review was too short, particularly in contrast to the time 
it took us to prepare and propose a rule.
    As described in Part III of this preamble, the stream protection 
rule has been the subject of robust public involvement, starting in 
2009. During that year, we published an advance notice of proposed 
rulemaking,\9\ conducted 15 stakeholder outreach meetings, held nine 
public scoping meetings, and provided two public comment periods 
totaling 76 days on scoping for the DEIS. The scoping process generated 
over 20,500 comments, including input from state regulatory 
authorities.
---------------------------------------------------------------------------

    \9\ 74 FR 62664-64668 (Nov. 30, 2009).
---------------------------------------------------------------------------

    On July 16, 2015, we announced that the proposed rule, DEIS, and 
DRIA were available for review at www.regulations.gov, on our Web site 
(www.osmre.gov), and at selected OSMRE offices. On July 17, 2015, we 
published a notice in the Federal Register announcing the availability 
of the DEIS for the proposed rule. See 80 FR 42535-42536. The notice 
reiterated that the DEIS was available for review at 
www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the 
notice. The comment period for the DEIS was originally scheduled to 
close on September 15, 2015. On July 27, 2015, we also published the 
proposed stream protection rule in the Federal Register. See 80 FR 
44436-44698. That document reiterated that the proposed rule, DEIS, and 
DRIA were available for review at www.regulations.gov, www.osmre.gov, 
and the OSMRE offices listed in the notice. The comment period for the 
proposed rule and DRIA was originally scheduled to close on September 
25, 2015. In response to requests for additional time to review and 
prepare comments on all three documents, we extended the comment period 
for the proposed rule, DEIS, and DRIA through October 26, 2015. See 80 
FR 54590-54591 (Sept. 10, 2015).
    Interested parties, therefore, received a total of 102 days to 
review the proposed rule and supporting documents. During that time, we 
also held six public hearings in Colorado, Kentucky, Missouri, 
Pennsylvania, Virginia, and West Virginia. We received approximately 
95,000 comments from all sources on the proposed rule, DEIS, and DRIA.
    The proposed rule, DEIS, and DRIA included citations to references 
that we relied upon in developing the documents. These reference 
citations were available from the time of publication of the proposed 
rule, DEIS, and the DRIA in the Federal Register. We used these 
references in discussing both specific components of the rule and our 
analysis, as well as for support of our discussion on more general 
concepts. We did not receive any requests for copies of these 
references during the comment period. However, in response to language 
that Congress included in a report accompanying the Consolidated 
Appropriations Act of 2016, Public Law 114-113, we placed all publicly-
available references on www.regulations.gov. Copyright-protected 
materials are easily obtainable through state or university libraries 
or the publisher. We were not able to provide copyright-protected items 
to

[[Page 93071]]

requesters directly because doing so might violate copyright laws. We 
also scheduled meetings between us and state technical personnel to 
discuss the scientific studies and other reference documents on two 
dates (April 14 and 21, 2016). The meetings were held simultaneously in 
Denver, Colorado; Alton, Illinois; and Pittsburgh, Pennsylvania. Staff 
from six state regulatory authorities participated in the meeting on 
April 14, 2016, and staff from five state regulatory authorities 
participated in the meeting on April 21, 2016.
    The comment period we provided fully complies with the 
Administrative Procedure Act, 5 U.S.C. 553, which does not set a 
minimum public comment period for a proposed rule. We also exceeded the 
60-day minimum comment period recommended by Section 6(a)(1) of 
Executive Order 12866 for meaningful public participation. This time is 
comparable to the comment periods for similar regulations that we have 
issued in the past. For example, the now-vacated 2008 stream buffer 
zone rule was subject to a 90-day comment period,\10\ while the comment 
period for the 1978 proposed rule containing most of the original 
permanent regulatory program regulations was 71 days.\11\
---------------------------------------------------------------------------

    \10\ 72 FR 48890 (Aug. 24, 2007); 72 FR 57504 (Oct. 10, 2007).
    \11\ 44 FR 14902, 14908 (Mar. 13, 1979).
---------------------------------------------------------------------------

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

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

    Most state and industry commenters urged us to refrain from 
finalizing the proposed rule at this time. Instead, these commenters 
requested that we engage in additional meaningful collaboration with 
the state regulatory authorities. Many of these commenters stated that 
we could benefit further from the insight, experience, and practices of 
the state regulatory authorities when developing the regulatory text, 
final EIS, and final RIA. According to the commenters, we did not 
provide the regulatory authorities and other state agencies that had 
agreed to be cooperating agencies in the National Environmental Policy 
Act of 1969 (NEPA) process with the opportunity for meaningful 
engagement. The commenters expressed their belief that we had not acted 
in accordance with the terms of the memoranda of understanding 
describing the roles and responsibilities for the effort. The 
commenters noted that, as a consequence, all but one of those 
regulatory authorities had terminated their cooperating agency status.
    We have substantially engaged with stakeholders, including the 
regulatory authorities. The rulemaking process began with an advance 
notice of proposed rulemaking, 15 stakeholder outreach meetings, nine 
public scoping meetings, and two public comment periods on the scoping 
for the DEIS. The scoping process generated over 20,500 comments, 
including input from the states. A number of state agencies, including 
state SMCRA regulatory authorities, participated as cooperating 
agencies in the early development of the DEIS for the stream protection 
rule. As of November, 2010, we had sent Chapters 1, 2, 3 and 4 of the 
DEIS to all cooperating agencies. Chapters 1-4 are the heart of an EIS. 
Those chapters include the statement of purpose and need, a description 
of the alternatives considered, a description of the affected 
environment, and an analysis of the environmental consequences of the 
alternatives. The cooperating agencies provided meaningful input and 
comments. We used this information to prepare the DEIS. In response to 
this and other feedback, we revised the DEIS over the next several 
years. Shortly before we announced the availability of the DEIS for 
public comment, all but one of the state regulatory authorities 
voluntarily terminated their role as cooperating agencies.
    We made the DEIS available on July 16, 2015, to all cooperating 
agencies and the public to review and provide input on during the 
public comment period. We subsequently extended the public comment 
period to provide interested parties, including the states, more time 
to review and comment on the DEIS. We conducted six public hearings in 
Colorado, Kentucky, Missouri, Pennsylvania, Virginia and West Virginia 
during the public comment period. Although not required to do so, in a 
letter dated October 7, 2015, prior to the close of the public comment 
period on October 26, 2015, we invited the former cooperating state 
agencies to re-engage as cooperating agencies under NEPA. None accepted 
this invitation. Ultimately, OSMRE received approximately 95,000 
comments, including hundreds of pages of comments from state SMCRA 
regulatory authorities, on the DEIS, DRIA, and the proposed stream 
protection rule. We considered these comments in developing this final 
rule, the final EIS, and the final RIA.
    The Department's Assistant Secretary for Land and Minerals 
Management, the Director of OSMRE, and other OSMRE officials continued 
to meet with representatives of states after the close of the comment 
period, consistent with congressional direction in a report 
accompanying the Consolidated Appropriations Act of 2016, Public Law 
114-113. In addition to meetings with state SMCRA regulatory 
authorities in conjunction with Interstate Mining Compact Commission 
meetings, Department of the Interior and OSMRE representatives have 
either met with or held telephone or video conferences with 14 
different state regulatory authorities since the proposed rule was 
published. We also scheduled meetings of OSMRE and state technical 
personnel to discuss the scientific studies and other reference 
documents on two dates (April 14 and 21, 2016). The meetings were held 
simultaneously in Denver, Colorado; Alton, Illinois; and Pittsburgh, 
Pennsylvania. Staff from six state regulatory authorities participated 
in the meeting on April 14, 2016, and staff from five state regulatory 
authorities participated in the meeting on April 21, 2016. Notice of 
the Final Environmental Impact Statement was published in the Federal 
Register on November 16, 2016 (81 FR 80592 and 81 FR 80664), by OSMRE 
and the U.S. Environmental Protection Agency, respectively.
    We understand the state regulatory authorities wanted more input, 
not only in the EIS, but also in the rule and the RIA. However, through 
this extensive outreach we have met our obligations as set forth in the 
Administrative Procedure Act, NEPA, and the pertinent executive orders 
and have sought the input from state regulatory authorities at crucial 
junctures in the development of the rule--early in the rulemaking 
process and after publication of the proposed rule. These are the 
points where their insights could best shape the proposal and refine 
the final rule without impinging on our deliberative process and our 
ability to craft a rule to meet our purpose and need. The final 
regulations that we are publishing today have been shaped by this 
direct input as well as by the information we have gleaned through our 
oversight of the state programs.

[[Page 93072]]

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

    According to numerous commenters, the proposed rule impinges on the 
concepts of cooperative federalism and state primacy in SMCRA. Because 
of this alleged impingement on states' rights under SMCRA, many of 
these commenters asserted that the proposed rule exceeds our statutory 
authority and contravenes the Tenth Amendment to the U.S. Constitution. 
They also charged that it ``flips the central SMCRA mandate of state 
primacy on its heads.''
    We disagree with these commenters. While it is true that primacy 
states play a key role in enforcing SMCRA, it is also true that we 
maintain a role in the implementation and oversight of SMCRA. See, 
e.g., Hodel v. Virginia Surface Mining and Reclamation Ass'n Inc., 452 
U.S. 264, 289 (1981) (``The most that can be said is that the Surface 
Mining Act establishes a program of cooperative federalism that allows 
the States, within limits established by federal minimum standards, to 
enact and administer their own regulatory programs, structured to meet 
their own particular needs.'' (Emphasis added.) These federal standards 
``provide [a] blueprint against which to evaluate [a] state's 
program.'' \12\ The U.S. Supreme Court has held this statutory scheme 
to be a proper exercise of Congressional power under the U.S. 
Constitution. Hodel, 452 U.S. at 290-291.
---------------------------------------------------------------------------

    \12\ Bragg v. W. Va. Coal Ass'n, 248 F.3d 275, 289 (4th Cir. 
2001).
---------------------------------------------------------------------------

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

    \13\ 30 U.S.C. 1202.
    \14\ 30 U.S.C. 1202(a)
    \15\ See, e.g., 30 U.S.C. 1202(d) and (f).
    \16\ 30 U.S.C. 1202(m).
    \17\ 30 U.S.C. 1211(c)(2); See also, id at 1251(b) (``[T]he 
Secretary shall promulgate and publish . . . regulations covering a 
permanent regulatory procedure for surface coal mining and 
reclamation operations performance standards based on and conforming 
to the provisions of Title V . . . .'').
---------------------------------------------------------------------------

    Contrary to the contention of some commenters, we are not 
abrogating primacy. Nor are we creating a rigid one-size-fits-all rule. 
Primacy states can and should tailor their state laws and regulations 
implementing this rule to local conditions as long as they meet minimum 
federal standards and are no less effective than the federal rules in 
meeting the requirements of SMCRA. In addition, the final rule provides 
discretion to the regulatory authority in certain areas, including, but 
not limited to, the following examples:
     Final Sec.  773.15(j): Compliance with the Endangered 
Species Act. Provides the permit applicant and the regulatory authority 
with several options for demonstrating compliance with the Endangered 
Species Act of 1973.
     Final Sec.  780.16(d): Potential Enhancement Measures. The 
regulatory authority has the discretion to determine the type, scope, 
and location of fish and wildlife enhancement measures.
     Final Sec.  780.19(a): Information on Hydrology, Geology, 
and Aquatic Biology, Baseline Information. The regulatory authority has 
the discretion to determine what constitutes ``sufficient detail'' with 
respect to the information required in this section, including the 
location and number of monitoring locations.
     Final Sec.  780.19(b)(6)(ii): Groundwater Information. The 
regulatory authority has the discretion to determine the baseline 
groundwater quality and quantity sampling protocol and subsequent 
analyses of these data.
     Final Sec.  780.19(c)(5): Precipitation Measurements. The 
regulatory authority has the flexibility to determine whether the 
permit applicant must prepare a hydrologic model of the proposed mine 
site.
     Final Sec.  780.19(c)(6)(vii): Assessing the biological 
condition of intermittent and perennial streams. The regulatory 
authority has the flexibility to choose from available scientifically 
defensible protocols, including indices of biological integrity, to 
determine the biological condition of streams.
     Final Sec.  780.21(b)(7): Evaluation Thresholds. The 
regulatory authority has the flexibility to determine the parameters it 
will use as evaluation thresholds.
     Final Sec.  780.27(b)(2): What Permitting Requirements 
Apply to Proposed Activities in or Through Ephemeral Streams? The 
regulatory authority has the flexibility to approve a drainage pattern 
that differs from the premining pattern based upon a variety of site 
specific conditions.
     Final Sec.  780.28(c)(2): Proposed Activities In, Through, 
or Adjacent to Perennial and Intermittent Streams. The regulatory 
authority has the flexibility to approve a drainage pattern or stream-
channel configuration that differs from the premining pattern based 
upon a variety of site-specific conditions.
     Final Sec.  780.28(e)(2): Conversion of Streams. The 
regulatory authority has the flexibility to approve limited stream flow 
regime conversions on a case-by-case basis as long as certain criteria 
are satisfied.
     Final Sec.  780.28(g)(1): Standards for the Restoration of 
Ecological Function to Perennial or Intermittent Streams. The 
regulatory authority has discretion to establish objective criteria for 
determining the standards for restoring the ecological function of a 
reconstructed perennial or intermittent stream.
    The underground mining counterparts to these surface mining 
provisions offer the same flexibilities to the regulatory authority.

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

    Many commenters stated that we have neither provided sufficient 
rationale for the development of this rule nor any evidence to support 
what many commenters consider a complete rewrite of the federal 
regulations implementing SMCRA. A number of commenters also raised 
concerns about whether the proposed rule articulated a legally

[[Page 93073]]

adequate justification for a nationwide rulemaking on issues related to 
stream protection. In particular, some commenters noted that the June 
11, 2009, Memorandum of Understanding (MOU) among the U.S. Department 
of the Army, the U.S. Department of the Interior, and EPA implementing 
the interagency action plan on Appalachian surface coal mining was 
limited to six states in Appalachia and primarily focused on issues 
related to steep-slope mining. The commenters questioned our decision 
to propose a nationwide rule in response to the MOU, which, by its own 
terms, was designed to significantly reduce the harmful environmental 
consequences of surface coal mining operations in Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia and ensure that 
future mining is conducted consistent with federal law. The 2009 MOU 
provided impetus and support for this rulemaking, but it is not the 
sole reason for the rulemaking. After extensive outreach, we determined 
that development of a comprehensive, nationally applicable, stream 
protection rule would be the most appropriate and effective method of 
achieving the purposes and requirements of SMCRA, as well as meeting 
the goals set forth in the MOU. Streams are important components of the 
hydrologic regime everywhere that streams are found, so there is no 
scientific reason to limit stream protection efforts to one region of 
the country or to steep-slope mining. In addition, it is not clear that 
we have authority under SMCRA to conduct rulemaking on a regional 
basis. Section 101(g) of SMCRA \18\ provides that ``surface coal mining 
and reclamation standards are essential in order to insure that 
competition in interstate commerce among sellers of coal produced in 
different States will not be used to undermine the ability of the 
several States to improve and maintain adequate standards on coal 
mining operations within their borders.'' The implication is that the 
surface coal mining and reclamation standards to which it refers must 
be national in scope. In addition, section 102(a) of SMCRA \19\ 
provides that one of the purposes of SMCRA is to ``establish a 
nationwide program to protect society and the environment from the 
adverse effects of surface coal mining operations.'' (Emphasis added.)
---------------------------------------------------------------------------

    \18\ 30 U.S.C. 1201(g).
    \19\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

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

    \20\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    The final rule published today reflects advances in science and 
technology, updates 30-year-old regulations, and addresses important 
stream protection and related issues in a manner consistent with SMCRA, 
while providing regulatory certainty to operators. State and industry 
practices helped shape this rule. Many commenters supported the 
proposed rule and encouraged us to proceed with a final rule.
    SMCRA recognizes the importance of nationwide minimum standards for 
the hydrologic balance by not limiting the provisions related to the 
hydrologic balance to any particular types of mining or areas of the 
country as it did with other provisions. Compare, e.g., Section 
510(b)(3) \21\ (no permit may be issued unless the operation has been 
``designed to prevent material damage to the hydrologic balance outside 
the permit area'') with Section 510(b)(5) \22\ (alluvial valley floor 
protections apply only west of the one hundredth meridian west 
longitude). We have never issued regulations that expressly apply only 
to a portion of the country without specific statutory language 
authorizing or mandating adoption of regulations with a geographically-
restricted scope. SMCRA provisions with a geographically-restricted 
scope include sections 510(b)(5) (alluvial valley floors west of the 
one hundredth meridian west longitude), 527 \23\ (special bituminous 
coal mines west of the one hundredth meridian west longitude), 529 \24\ 
(anthracite coal mines regulated by a state), and 708 \25\ (coal mines 
in Alaska, for a limited time only).
---------------------------------------------------------------------------

    \21\ 30 U.S.C. 1260(b)(3).
    \22\ 30 U.S.C. 1265(b)(5).
    \23\ 30 U.S.C. 1277.
    \24\ 30 U.S.C. 1279.
    \25\ 30 U.S.C. 1298.
---------------------------------------------------------------------------

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

    \26\ FEIS at Chapter 1--Sections 1.1 and 1.2, Table 4.2-15.
---------------------------------------------------------------------------

    As we set forth in the proposed rule and in documents in support of 
the proposed rule, SMCRA provides us with the authority to protect the 
hydrologic balance from coal mining operations nationwide. Despite that 
fact and the benefits that could be realized nationwide, some 
commenters cite data contained in our annual evaluation reports of 
state regulatory programs in an attempt to show that there is no 
nationwide problem. According to these commenters, our annual 
evaluation reports ``show that 90 percent of operations were free of 
any offsite impacts'' and ``routinely include highly positive narrative 
reviews of each state's SMCRA program.''
    While it is true that our annual evaluation reports routinely do 
not indicate problems with the states' implementation of their 
programs, we disagree with the conclusion the commenters attempt to 
draw from this information, i.e., that our experience does not show 
that there is a problem that this rule is designed to address. OSMRE 
inspections and other oversight activities in primacy states, including 
the annual evaluation reports, focus on the success of state regulatory 
authorities in achieving compliance with the approved regulatory 
program for the state. Directive REG-8,\27\ which establishes policy 
and procedures for the evaluation of state regulatory programs, 
specifies that the offsite impacts identified in annual evaluation 
reports do not include impacts from mining and reclamation that are not 
regulated or controlled by the state program. In other words, the 
annual evaluation reports generally do not identify or discuss 
situations in which the existing regulations provide inadequate 
protection. While Directive REG-8 provides discretionary authority for 
evaluations of impacts that are not prohibited by the regulatory 
program, that authority may be exercised only if both OSMRE and the 
state agree to do so, and if they are not characterized as

[[Page 93074]]

offsite impacts. Historically, that discretionary authority has not 
been exercised. Thus, annual reports are of little assistance in 
assessing how the existing minimum federal standards that are 
incorporated into the approved state programs could be improved to 
better implement SMCRA. Part II of the preamble summarizes the water 
quality and land reclamation problems that developed under the previous 
rules. In addition, speakers at the public hearings described their 
experiences with dewatering of streams as a result of subsidence from 
underground mining operations.
---------------------------------------------------------------------------

    \27\ Directive REG-8. ``Oversight of State and Tribal Regulatory 
Programs,'' Transmittal No. 967, January 31, 2011.
---------------------------------------------------------------------------

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

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

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

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

[[Page 93075]]

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

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

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

    \28\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    In the preamble to the proposed rule, we requested comment on 
whether proposed Sec.  816.42(b) should be informational or directly 
enforceable under SMCRA.\29\ As mentioned, this paragraph required that 
discharges of overburden (including excess spoil), coal mine waste, and 
other materials into waters of the United States be made in compliance 
with section 404 of the Clean Water Act and its implementing

[[Page 93076]]

regulations. Commenters were divided on the merits of this issue. 
Several environmental groups and citizens asked us to make standards 
under both sections 402 and 404 of the Clean Water Act directly 
enforceable under SMCRA. These commenters typically suggested changes 
to proposed Sec.  816.42 to clarify that water quality standards 
established under the Clean Water Act are directly enforceable under 
SMCRA. According to these commenters, section 702(a) of SMCRA \30\ and 
prior preamble statements concerning Sec.  816.42 provide authority for 
direct enforcement of water quality standards under SMCRA. Similarly, 
these commenters asked us to clarify whether proposed Sec.  
816.71(a)(7) (excess spoil) and 816.57(b) (mining in, through, or 
adjacent to perennial and intermittent streams) require operators to 
comply with water quality standards and, if so, whether the SMCRA 
regulatory authorities will directly enforce these water quality 
standards. Some commenters asked us to provide for direct enforcement 
of Clean Water Act water quality standards through citizen suits under 
section 520 of SMCRA.
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    \29\ 80 FR 44549 (Jul. 27, 2015).
    \30\ 30 U.S.C. 1292(a).
---------------------------------------------------------------------------

    In contrast, other commenters considered Sec.  816.42 to be 
unnecessary and duplicative of the Clean Water Act. Some commenters 
detailed the Clean Water Act's own ``robust, but carefully tailored, 
enforcement scheme[,]'' which includes both direct enforcement by the 
state Clean Water Act authority of any aspect of the Clean Water Act 
that it has been delegated, enforcement by the U.S. Environmental 
Protection Agency, enforcement by the U.S. Army Corps of Engineers, and 
enforcement by citizen suits under the Clean Water Act. These 
commenters noted that the Clean Water Act does not confer authority on 
other agencies, such as us or state SMCRA regulatory authorities, to 
enforce the Clean Water Act, and the SMCRA regulatory authorities are 
not equipped to do so. Moreover, some commenters claimed that making 
the provisions of the Clean Water Act directly enforceable under SMCRA 
would directly conflict with the Clean Water Act because it would give 
a state with SMCRA primacy the direct authority to enforce violations 
of the Clean Water Act--even where that state does not have full 
delegation to administer Clean Water Act programs. These commenters 
generally urged us to consider this paragraph as informational or to 
remove it altogether.
    In developing the approach we adopted in the final rule about the 
direct enforcement of Clean Water Act provisions under SMCRA, we 
considered the applicable requirements of SMCRA in light of an 
overarching purpose of SMCRA: To protect society and the environment 
from the adverse effects of coal mining operations.\31\ Section 
510(b)(3) of SMCRA specifically provides that coal mining operations 
must be designed to prevent material damage to the hydrologic balance 
outside the permit area.\32\ Likewise, section 508(a)(9) of SMCRA 
provides that a permit application must include ``the steps to be taken 
to comply with applicable air and water quality laws and 
regulations[,]'' \33\ and section 702(a) of SMCRA provides that nothing 
in SMCRA ``shall be construed as superseding, amending, modifying, or 
repealing'' the Clean Water Act or any rule or regulation promulgated 
under the Clean Water Act.\34\ Thus, while we cannot supersede the 
Clean Water Act, under SMCRA, regulatory authorities do have a duty to 
ensure that surface coal mining operations are permitted, operated, 
maintained, and reclaimed in a manner that complies with the Clean 
Water Act, which includes, but is not limited to, compliance with NPDES 
permits and water quality standards.
---------------------------------------------------------------------------

    \31\ See, e.g., 30 U.S.C. 1201(d); 1201(j), 1202(a), 1202(c), 
1202(d), 1202(f), and 1202(m).
    \32\ 30 U.S.C. 1260(b)(3).
    \33\ 30 U.S.C. 1258(a)(9).
    \34\ 30 U.S.C. 1292(a)(3).
---------------------------------------------------------------------------

    Section 816.42 of the final rule is the primary regulation that 
sets forth the duty under SMCRA for coal mining operations to comply 
with the Clean Water Act. This regulation is tailored to accomplish 
this objective while avoiding conflicts between SMCRA regulatory 
authorities and Clean Water Act authorities about what constitutes a 
Clean Water Act violation. In particular, final Sec.  816.42(a) 
clarifies that neither this section of the final rule, nor any action 
taken pursuant to it, supersedes or modifies the authority or 
jurisdiction of federal, state, or tribal agencies responsible for 
administration, implementation, and enforcement of the Clean Water Act 
including decisions that those agencies make pursuant to the authority 
of the Clean Water Act. This includes decisions on whether a particular 
set of facts constitutes a violation of the Clean Water Act.
    With regard to enforcement under SMCRA, final rule Sec.  
816.42(b)(1) retains our longstanding regulatory requirement that coal 
mining operations must comply with all applicable water quality laws 
and regulations, including the effluent limitations set by Clean Water 
Act authorities in NPDES permits under section 402 of the Clean Water 
Act.\35\ Since our final rulemaking in 1982 was promulgated to be 
consistent with effluent limits established by the U.S. Environmental 
Protection Agency, our regulations have required that discharges from 
coal mining operations be in accordance with a valid NDPES permit and 
that this is a performance standard directly enforceable under 
SMCRA.\36\ This approach has been upheld by the Interior Board of Land 
Appeals and has been expressly incorporated by several regulatory 
authorities.\37\ Direct enforcement of the NPDES effluent limitations 
typically begins with an inspector for the SMCRA regulatory authority 
conducting a routine inspection.\38\ During these inspections, water 
samples are taken from sediment pond discharges to verify compliance 
with the SMCRA permits, which incorporates the NDPES effluent 
limitations by reference. When violations of those standards are found, 
a SMCRA notice of violation is issued requiring the violation to be 
corrected.
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    \35\ 33 U.S.C. 1342.
    \36\ 47 FR 47220 (Oct. 22, 1982).
    \37\ West Virginia Highlands Conservancy et al.,152 IBLA 196 
(2000); see also, Ohio Division of Reclamation Policy/Procedure 
Directive 95-2; June 1, 1995.
    \38\ Active mining operations require complete inspections 
quarterly and partial inspections monthly.
---------------------------------------------------------------------------

    With the final rule, we are changing this process slightly. In 
response to Federal agency comments, we have revised final Sec.  
816.42(b)(1) to require the SMCRA regulatory authority to add an 
additional step to the end of the process: Notification of the 
appropriate Clean Water Act authority of any notice of violation issued 
under SMCRA for a violation of an effluent limit. We also added a 
provision requiring the SMCRA regulatory authority to coordinate with 
the Clean Water Act authority whenever necessary to determine if a 
violation exists. This provision is intended to address those 
situations where there may be some uncertainty as to whether in fact a 
violation exists. In addition to ensuring that there is no ambiguity 
about the requirement for a permittee to comply with NPDES effluent 
limits under SMCRA, we have added paragraph (i) to final rule Sec.  
773.17, which requires the regulatory authority to condition every 
permit on compliance with all effluent limitations and conditions in 
any NDPES permit issued by the Clean Water Act authority.
    With regard to enforcement of water quality standards, Sec.  
816.42(b)(2) was also added to make it clear that coal mining 
operations cannot cause or contribute to a violation of any applicable 
water quality standards. In addition, in response to comments, we

[[Page 93077]]

have added language similar to that contained in Sec.  816.42(b)(2) to 
final Sec.  816.57(a)(2) to clarify that activities in, near, or 
through streams may not cause or contribute to a violation of 
applicable water quality standards. Similarly, in response to comments, 
we adopted a provision in final Sec.  816.71(a)(7) which provides that 
the permittee or operator must place excess spoil in a manner that will 
ensure that the fill will not cause or contribute to a violation of 
applicable water quality standards adopted under the authority of 
section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), for surface 
water downstream of the toe of the fill.
    In addition Sec.  816.42(c) of the final rule mirrors proposed 
paragraph (b) and provides that discharges of overburden, coal mine 
waste, and other materials into waters subject to the jurisdiction of 
the Clean Water Act, must be made in compliance with section 404 of the 
Clean Water Act.\39\
---------------------------------------------------------------------------

    \39\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

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

    \40\ 30 U.S.C. 1271(a)(2).
    \41\ 30 U.S.C. 1292(a).
---------------------------------------------------------------------------

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

    \42\ 30 U.S.C. 1271.
    \43\ 33 U.S.C.1365.
    \44\ 16 U.S.C.1531.
---------------------------------------------------------------------------

H. We Should Define ``Existing Uses'' To Be Consistent With Clean Water 
Act Terminology

    The proposed rule contained numerous regulations that refer to 
``existing uses'' in the context of uses of groundwater and surface 
water. With respect to surface water, the regulations at 40 CFR 
131.3(e) implementing the Clean Water Act defines ``existing uses'' as 
``those uses actually attained in a waterbody on or after November 28, 
1975, whether or not they are included in the water quality 
standards.'' We did not propose to define ``existing uses'' in the 
proposed rule, but we stated in the preamble that we interpret the term 
``existing uses'' as meaning those uses in existence at the time of 
preparation of the permit application, regardless of whether those uses 
are designated uses under section 303(c) of the Clean Water Act.\45\ 
See 80 FR 44475 (Jul. 27, 2015). We also stated in the preamble that, 
alternatively, we might replace the term ``existing uses'' with 
``premining uses'' for purposes of clarity. Id. We invited comment on 
which course of action we should take.
---------------------------------------------------------------------------

    \45\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    One commenter stated that the term ``existing uses'' is acceptable 
as long as we distinguish between existing uses and designated uses. 
Another commenter found our de facto definition (``those uses in 
existence at the time of the preparation of the permit application'') 
to be potentially less protective than, and therefore inconsistent 
with, the Clean Water Act definition of ``existing uses'' at 40 CFR 
131.3(e). The commenter asserted that, in the context of a permit 
application prepared in 2016 for a watershed that had no mining 
activity before November 28, 1975, the existing uses in 2016 likely 
would be more impaired than the existing uses before November 28, 1975. 
Preserving the ``existing uses'' at the time of the new 2016 mining 
application might simply perpetuate the existing level of impairment 
caused by prior mining in the same watershed. The commenter argued that 
our rules must provide at least the same level of protection as the 
Clean Water Act definition. The commenter recommended that our rules 
use the term ``premining uses'' and that we interpret that term as 
meaning all uses in existence at the time of the enactment of SMCRA. 
According to the commenter, the statutory mandate to prevent material 
damage to the hydrologic balance outside the permit area means that the 
rule must extend protection to all water sources impaired by mining 
since SMCRA was enacted in 1977.
    Our rule implements SMCRA, not the Clean Water Act, so we are under 
no obligation to adopt the same definition of ``existing uses'' that 
has been adopted under the Clean Water Act, especially when our 
definition pertains to a term (material damage to the hydrologic 
balance outside the permit area) that does not appear in the Clean 
Water Act. We also have not discovered any support for the commenter's 
assertion that Congress intended that we look back to the baseline 
conditions on the date of enactment of SMCRA (August 3, 1977) to 
determine whether an operation is preventing material damage to the 
hydrologic balance outside the permit area. In addition to the 
practical difficulty of determining the baseline condition of water 
bodies on a date almost four decades ago, there is no statutory support 
for viewing the date that SMCRA was enacted as the baseline for 
determining whether an operation will prevent material damage to the 
hydrologic balance outside the permit area. To the contrary, SMCRA 
indicates that such a finding should be made at the time of permit 
application. For instance, section 510(b)(3) of SMCRA \46\ provides 
that the regulatory authority may not approve any application for a

[[Page 93078]]

permit or permit revision unless the regulatory authority finds that 
the proposed operation has been designed to prevent material damage to 
the hydrologic balance outside the permit area. Thus, this section 
implies that the finding on material damage to the hydrologic balance 
outside the permit area should be based upon the assessment of the 
cumulative hydrologic impact of all anticipated mining in the 
watershed. That assessment looks forward to future impacts, not 
backward to impacts that have occurred since 1977.
---------------------------------------------------------------------------

    \46\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

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

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

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

    \47\ 30 U.S.C. 1292(a)(3).
---------------------------------------------------------------------------

    These commenters typically failed to appreciate the significance of 
the court's further holding in that case: ``where the [Clean Water Act] 
and its underlying regulatory scheme are silent so as to constitute an 
`absence of regulation' or a `regulatory gap', the Secretary may issue 
effluent regulations without regard to EPA practice so long as he is 
authorized to do so under the Surface Mining Act.'' Id. at 1367 
(emphasis added). Thus, the court expressly held that we, under the 
authority of SMCRA, could issue regulations to address the hydrologic 
impacts of coal mining operations that are not adequately addressed 
under the Clean Water Act. In this final rule, consistent with this 
ruling, we are using our SMCRA authority to fill many of the very 
regulatory gaps that the Court mentioned in In re Surface Mining 
Regulation Litigation. See, e.g., id. (gaps in the Clean Water Act 
include, but are not limited to, ``discharges from abandoned and 
underground mines or from nonpoint sources'' and the ability ``to 
establish standards ``requiring comprehensive preplanning and designing 
for appropriate mine operating and reclamation procedures `to ensure 
protection of public health and safety and to prevent the variety of 
other damages to the land, the soil, the wildlife, and the aesthetic 
and recreational values that can result from coal mining.' '').
    Several commenters argued that this rule was not, in fact, filling 
regulatory gaps, but instead was creating a regime that would be 
inconsistent with the Clean Water Act and associated water quality laws 
and would improperly require SMCRA regulatory authorities to set water 
quality standards and enforce the Clean Water Act. We disagree. The 
Clean Water Act is designed to cover many industries and activities. 
SMCRA, by contrast, is designed to regulate the environmental impacts 
of one specific industry. This distinction is significant because the 
later-enacted statute, SMCRA, unlike the Clean Water Act, provides for 
the regulation of the environmental impacts, including the hydrologic 
impacts, of all phases of mining operations--design, operation, and 
reclamation. Absent SMCRA, coal mining operations that impact waters 
outside the permit area would be subject only to the limited regulation 
authorized by the Clean Water Act. By including requirements in SMCRA 
to regulate the effects of coal mining on water and hydrologic 
balance,\48\ Congress clearly indicated that it intended to go beyond 
the protections it had afforded in the Clean Water Act. In SMCRA, 
Congress required the development of focused design requirements and 
performance standards for surface coal mining operations, including 
numerous standards related to water and the hydrologic balance. Thus, 
as long as these SMCRA standards do not conflict with the Clean Water 
Act, regulation under SMCRA will complement the Clean Water Act 
standards and requirements, which means that the final rule 
legitimately fits within the confines of what Congress intended.
---------------------------------------------------------------------------

    \48\ See, e.g., 30 U.S.C. 1201(c), 1260(b)(3), 1265(b)(2), 
1265(b)(10), 1265(b)(24), 1266(b)(4), 1266(b)(9), 1266(b)(11), 
1266(b)(12), 1266(c).
---------------------------------------------------------------------------

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

    \49\ See, e.g., Sec.  780.21(b)(6)(i) (removing the requirement 
that parameters of concern used to assess the potential for material 
damage to the hydrologic balance be expressed in numerical terms in 
the CHIA); 773.15(e)(3); and Sec.  701.5 (definition of parameters 
of concern).
---------------------------------------------------------------------------

    Some commenters alleged that our proposed rule would conflict with 
the Clean Water Act because it does not afford the same degree of 
flexibility that the statute does. However, our rule does not reduce 
the flexibilities afforded to operators under the Clean Water Act. 
Under our final rule, mining operations may not preclude attainment of 
any designated uses under the Clean Water Act, if such uses have been 
established. Precluding such designated uses would constitute material 
damage to the hydrologic balance outside the permit area under SMCRA. 
However, if no designated use exists, the standard becomes whether the 
operation is precluding any premining use of surface water outside the 
permit area.
    One commenter asserted that designated uses under the Clean Water 
Act are ``aspirational and cannot be met due to ambient values or 
nonpoint sources'' and requested that we better explain what should 
occur in such situations. Another commenter raised similar concerns 
about how this proposed rule would account for the ``flexible and 
adaptive implementation'' of Clean Water Act standards. This commenter 
cited use attainability analysis, variances, and compliance

[[Page 93079]]

schedules and deadlines as examples of the flexible implementation 
inherent in Clean Water Act implementation. To the extent that the 
Clean Water Act provides flexibility, this final rule does not 
supersede, amend, modify, repeal, or otherwise conflict with the Clean 
Water Act. In addition, contrary to comments made by other commenters, 
SMCRA allows for some environmental impacts caused by mining; however, 
these are not without limitation. For example, section 515(b)(10) of 
SMCRA \50\ requires that surface coal mining and reclamation operations 
minimize disturbances to the prevailing hydrologic balance at the mine 
site and in associated offsite areas and to the quality and quantity of 
water in surface and groundwater systems, which means that some damage 
is permissible. However, section 510(b)(3) of SMCRA \51\ effectively 
prohibits approval of a permit application unless the proposed 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area.
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    \50\ 30 U.S.C. 1265(b)(10).
    \51\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

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

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

    \52\ 16 U.S.C. 1531 et seq.
---------------------------------------------------------------------------

    In the final rule, we replaced proposed Sec. Sec.  779.20(d)(2)(iv) 
and 780.16(e)(2)(iv) with a single consolidated provision in Sec.  
780.16(b)(2). That provision specifies that the regulatory authority 
may not approve a permit application before it finds that there is a 
demonstration of compliance with the Endangered Species Act through one 
of the mechanisms listed in Sec.  773.15(j) of the final rule.
    Nothing in SMCRA supersedes the Endangered Species Act or exempts 
surface coal mining operations from compliance with applicable 
provisions of that law and the implementing regulations. Sections 
7(a)(1), (2) and (4) of the Endangered Species Act of 1973 provide 
authority for adoption of the regulations referenced above, which are 
intended to ensure that surface coal mining and reclamation operations 
conducted under approved state and federal SMCRA regulatory programs 
avoid violations of the Endangered Species Act. Section 7(a)(1) of the 
Endangered Species Act \53\ directs federal agencies to use their 
authorities to further the purposes of the Endangered Species Act. 
Section 7(a)(2) of the Endangered Species Act \54\ requires all federal 
agencies, in consultation with FWS or the National Marine and Fisheries 
Service,\55\ to ensure that their actions are not likely to jeopardize 
the continued existence of listed species or destroy or adversely 
modify designated critical habitat. Section 7(a)(4) of the Endangered 
Species Act \56\ requires federal agencies to confer with the FWS on 
any agency action that is likely to jeopardize the continued existence 
of any species proposed to be listed. Other sources of authority for 
this rule are sections 515(b)(24), 515(b)(10), 515(b)(17), and 
201(c)(2) of SMCRA.\57\
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    \53\ 16 U.S.C. 1536(a)(1).
    \54\ 16 U.S.C. 1536(a)(2).
    \55\ The Secretaries of the Department of the Interior and 
Commerce (Secretaries) have the responsibility for administering the 
Endangered Species Act, and have delegated this responsibility to 
the FWS and National Marine Fisheries Service (NMFS), respectively. 
16 U.S.C. 1533. The FWS manages and administers most ESA-listed 
species except marine species, including some marine mammals, and 
anadromous fish, which are the responsibility of NMFS. Id. We 
determined that this rulemaking will not impact any of the species 
under the jurisdiction of the NMFS. However, we included the NMFS in 
all sections of our rule relating to the Endangered Species Act to 
insure that, in the unlikely circumstance that a coal mining 
operation may impact an ESA-listed species or its habitat under the 
jurisdiction of NMFS, the applicant and regulatory authority 
coordinate with the appropriate NMFS office.
    \56\ 16 U.S.C. 1536(a)(4).
    \57\ 30 U.S.C. 1265(b)(24), 1265(b)(10), 1265(b)(17), and 1211, 
respectively.
---------------------------------------------------------------------------

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

    \58\ 16 U.S.C. 1533.
    \59\ 16 U.S.C. 1538(a).
    \60\ 16 U.S.C. 1532(13).
---------------------------------------------------------------------------

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

    \61\ 16 U.S.C. 1536.
    \62\ 16 U.S.C. 1539.
    \63\ 16 U.S.C. 1540.
---------------------------------------------------------------------------

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

[[Page 93080]]

habitat, together with the effects of other activities that are 
interrelated or interdependent with that action.''
---------------------------------------------------------------------------

    \64\ Final ESA Section 7 Consultation Handbook, March 1998 (pg. 
xii-xiii).
---------------------------------------------------------------------------

    Paragraphs (j)(2) through (4) apply when the proposed surface coal 
mining and reclamation operations may have an effect on species listed 
or proposed for listing as threatened or endangered or on designated or 
proposed critical habitat for those species. Paragraph (j)(2) allows an 
applicant to obtain protection against liability for incidental take of 
a threatened or endangered species by documenting compliance with a 
valid biological opinion that covers issuance of permits for surface 
coal mining operations and the conduct of those operations under the 
applicable regulatory program. Through the process of completing a 
section 7 consultation on the continuation of existing permits and the 
approval and conduct of future surface coal mining and reclamation 
operations under both state and federal regulatory programs adopted 
pursuant to SMCRA, as modified by this rule, OSMRE and the U.S. Fish 
and Wildlife Service entered into a Memorandum of Understanding to 
improve interagency coordination and cooperation to ensure that 
proposed, threatened, and endangered species and proposed and 
designated critical habitat are adequately protected for all surface 
coal mining and reclamation permitting actions, including exploration 
operations, initial permit issuance, renewals, and significant 
revisions. The MOU complements the U.S. Fish and Wildlife Service's 
2016 programmatic Biological Opinion. Thus, compliance with the terms 
of that biological opinion and the MOU would satisfy final paragraph 
(j)(2).
    Final paragraph (j)(3) applies where we are the regulatory 
authority or where a mining plan is required under part 746 of our 
regulations to mine leased federal coal. This provision specifies that 
the applicant may provide documentation that interagency consultation 
under section 7 of the Endangered Species Act has been completed for 
the proposed operation. The provision may also apply in the case where 
other federal permits are required for the proposed operation, 
depending upon the scope of the formal consultation. Paragraph (j)(4) 
provides an alternative that applies where a state regulatory authority 
is responsible for permitting actions and the proposed operation does 
not involve leased federal coal, and the operator does not utilize 
paragraph (j)(2) or (j)(3), where applicable. It specifies that the 
applicant may provide documentation that the proposed operation is 
covered under a permit issued pursuant to section 10 of the Endangered 
Species Act of 1973.

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

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

    \65\ 30 U.S.C. 1266(b)(1).
---------------------------------------------------------------------------

    As finalized, the definition of the term ``material damage to the 
hydrologic balance outside the permit area'' applies generally to ``an 
adverse impact . . . resulting from surface coal mining and reclamation 
operations, underground mining activities, or subsidence associated 
with underground mining activities.'' These two definitions are 
intended to ensure that all provisions of SMCRA are given effect--
material damage to the hydrologic balance outside the permit area is 
prevented while material damage caused by subsidence is minimized to 
the extent technologically and economically feasible.
    Numerous commenters expressed concern about the potential 
implications of applying the term ``material damage to the hydrologic 
balance outside the permit area'' to underground mining activities and 
subsidence. These commenters objected to application of the definition 
of ``material damage to the hydrologic balance outside the permit 
area'' to areas overlying the underground workings, which are part of 
the ``adjacent area'' as defined in Sec.  701.5. They indicated that 
subsidence can cause a range of different impacts on water quantity and 
quality, including loss of flow through surface fracturing of the 
stream bed, loss of recharge due to a drop in the groundwater table 
below the stream bed elevation, loss of water supply sources like 
springs and seeps, and increased pollutant loadings; e.g., iron, 
aluminum, and sulfate, caused by fracturing of the overburden. They 
noted that these types of hydrologic impacts are often temporary. 
According to the commenters, if the rule categorically required the 
prevention of temporary and permanent hydrologic impacts, some types of 
underground mining, such as longwall mining or other methods using 
planned subsidence, could not occur because those hydrologic impacts 
cannot be completely prevented.
    We find that many of the concerns raised in the comments are 
overstated.
    As noted previously, section 510(b)(3) of SMCRA \66\ requires mine 
operators to prevent ``material damage to the hydrologic balance 
outside the permit area'' but section 516(b)(1) of SMCRA \67\ requires 
prevention of ``material damage'' caused by subsidence from underground 
operations to the extent technologically and economically feasible. In 
keeping with these different and distinct provisions of SMCRA we 
clarified that not all of the impacts that the commenters described 
would necessarily rise to the level of material damage to the 
hydrologic balance outside the permit area. The regulatory authority is 
required to make a determination whether a permittee's proposed 
operation is designed to prevent material damage to the hydrologic 
balance outside the permit area. If the regulatory authority determines 
that it does cause material damage to the hydrologic balance outside 
the permit area, a permit will not be issued. Such a situation would 
occur whenever an adverse impact from subsidence permanently diminishes 
flow (i.e., dewaters) of an intermittent or perennial stream to the 
extent that applicable water quality standards would not be met, or if 
no water quality standard has been established, the premining use would 
not be attained. However, a regulatory authority may determine that 
proposed subsidence-related material damage to surface water or 
groundwater can and will be repaired so that it still meets applicable 
water quality standards, or, if no water quality standard exists or is 
applicable, it still attains its premining use. Diminished flow within 
a short section of a stream segment over a longwall panel that recovers 
within a brief period of time or is repairable may have no discernible 
impact on attainment of water quality

[[Page 93081]]

standards or premining uses and therefore may not constitute material 
damage to the hydrologic balance outside the permit area. The 
regulatory authority will make a determination on whether subsidence 
damage to wetlands, streams, or other water bodies that can be 
corrected, or that will recover naturally, constitutes material damage 
to the hydrologic balance outside the permit area; if it does not rise 
to the level of material damage to the hydrologic balance outside the 
permit area, it may be allowed.
---------------------------------------------------------------------------

    \66\ 30 U.S.C. 1260(b)(3).
    \67\ 30 U.S.C. 1266(b)(1).
---------------------------------------------------------------------------

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

    \68\ 30 U.S.C. 1260(b)(3).
    \69\ 30 U.S.C. 1260(b)(3) and 1266(b)(1).
---------------------------------------------------------------------------

    We have also addressed comments about the effects of subsidence on 
land and waters overlying underground mine workings by revising our 
proposed definition of ``material damage'' and our subsidence control 
provisions at Sec.  784.30 (previously located at Sec.  784.20), and 
Sec.  817.121. In addition to addressing concerns raised by commenters 
about the magnitude and longevity of subsidence-related impacts to 
streams, these changes will help reduce the confusion identified by one 
commenter regarding the application of material damage to certain 
features in the subsidence context.
    The definition of ``material damage'' in Sec.  701.5 of the final 
rule applies only in the context of the subsidence control provisions 
of Sec. Sec.  784.30 and 817.121. Among other things, the definition as 
adopted in this final rule specifies that material damage includes 
``[a]ny functional impairment of surface lands, features (including 
wetlands, streams, and bodies of water), structures, or facilities.'' 
Under Sec.  784.30(c), mining may still occur when those features exist 
or may be materially damaged, provided that the applicant submits a 
subsidence control plan and the regulatory authority approves that 
plan. Among other requirements, the subsidence control plan must 
describe the anticipated effects of planned subsidence on wetlands, 
streams, and water bodies and the measures to be taken to mitigate or 
remedy any subsidence-related material damage to those features.\70\ In 
addition, pursuant to Sec.  817.121(c) and (g), the underground mine 
operator must repair damage to surface land and waters, including 
wetlands, streams, and water bodies, to a condition capable of 
maintaining the value and reasonably foreseeable uses that the land was 
capable of supporting before subsidence damage occurred unless the 
regulatory authority determines that restoration is not technologically 
or economically feasible. If those repairs will not be implemented 
within 90 days, the permittee must bond the area as discussed in the 
preamble to final Sec.  817.121(g)(3)(i).
---------------------------------------------------------------------------

    \70\ 784.30(c)(2)(vi) and (c)(2)(viii).
---------------------------------------------------------------------------

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

    \71\ Public Law 102-486 (Oct. 24, 1992).

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

    \72\ 60 FR 16722 (Mar. 31, 1995).

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

    \73\ Id.
---------------------------------------------------------------------------

    The final rule includes language that requires the regulatory 
authority, when reviewing the determination of the probable hydrologic 
consequences of the operation in accordance with Sec.  784.20 and the 
hydrologic reclamation plan in accordance with Sec.  784.22, to (i) 
make a reasonable effort to assess the potential effects of subsidence 
from the proposed underground mining activities on streams and (ii) 
include remedial measures for any predicted diminution of streamflow as 
a result of subsidence. In summary, the final rule allows

[[Page 93082]]

material damage to wetlands, streams, and water bodies to occur so long 
as the permittee follows the subsidence control provisions in 
Sec. Sec.  784.30 (subsidence control plan), 817.40 (water supply 
replacement), and 817.121 (subsidence prevention and control and 
correction of damage resulting from subsidence). Following these 
regulations means that water supplies will be replaced and that, to the 
extent technologically and economically feasible, wetlands, streams, 
and water bodies will be restored. In addition, we added Sec.  
817.121(c)(2), which requires that the permittee implement fish and 
wildlife enhancement measures, as approved by the regulatory authority 
in a permit revision, to offset subsidence-related material damage to 
wetlands or a perennial or intermittent stream when correction of that 
damage is technologically and economically infeasible. As long as these 
regulations are followed, subsidence damage from an underground mining 
operation that does not rise to the level of material damage to the 
hydrologic balance outside the permit area is allowed.

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

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

    \74\ 30 U.S.C. 1260(b)(3).
    \75\ 30 CFR 701.5.
    \76\ Id.
---------------------------------------------------------------------------

    The areas outside the permit area that may be impacted by mining 
activities are within the ``adjacent area'' as that term is defined in 
Sec.  701.5. Generally, paragraph (1) of the definition of ``adjacent 
area'' includes the area outside the proposed or actual permit area 
within which there is a reasonable probability of adverse impacts from 
surface coal mining operations or underground mining activities. 
Moreover, the area comprised within this term will vary with the 
context in which a regulation uses this term. For example, the nature 
of the resource or resources addressed by a regulation in which the 
term ``adjacent area'' appears will determine the size and other 
dimensions of the adjacent area for purposes of that regulation.
    For underground mines, paragraph (2) of the definition specifies 
that the adjacent area includes, ``at a minimum, the area overlying the 
underground workings plus the area within a reasonable angle of 
dewatering from the perimeter of the underground workings.'' Thus, 
surface water and groundwater outside the permit area, but within the 
adjacent area, must be protected from material damage to the hydrologic 
balance outside the permit area. We discuss other issues pertaining to 
the term ``material damage to the hydrologic balance outside the permit 
area'' in the preamble to the definition of that term.

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

Material Damage Thresholds
    Section 510(b)(3) of SMCRA \77\ provides that the regulatory 
authority may not approve a permit application unless the application 
affirmatively demonstrates and the regulatory authority finds in 
writing that the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. The 
regulatory authority must base this finding on an ``assessment of the 
probable cumulative impact of all anticipated mining in the area on the 
hydrologic balance.'' Our rules refer to that assessment as the 
cumulative hydrologic impact assessment (CHIA). See, e.g., 30 CFR 
780.21. Our rules also designate the area for which the CHIA is 
prepared as the ``cumulative impact area,'' which section 701.5 of this 
final rule defines generally as any area within which impacts resulting 
from a surface or underground coal mining operation may interact with 
the impacts of all existing and anticipated surface and underground 
coal mining on surface-water and groundwater systems, including the 
impacts that existing and anticipated mining will have during mining 
and reclamation until final bond release.
---------------------------------------------------------------------------

    \77\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

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

    \78\ 30 U.S.C. 1257(b)(11).
    \79\ 30 U.S.C. 1258(a)(13).
---------------------------------------------------------------------------

    Section 780.21(b)(6) of this final rule provides that the 
regulatory authority must identify site-specific numeric or narrative 
material damage thresholds for each permit as part of the CHIA and 
include those thresholds as a condition

[[Page 93083]]

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

    \80\ 33 U.S.C. 1313(c).
    \81\ 33 U.S.C. 1314(a).
    \82\ 16 U.S.C. 1531 et seq.
    \83\ 33 U.S.C. 1251 et seq.
---------------------------------------------------------------------------

    Final Sec.  780.21(b)(6)(iii) requires that the regulatory 
authority identify the portion of the cumulative impact area to which 
each material damage threshold applies. This provision recognizes that 
the parameters selected and material damage threshold levels may vary 
within the cumulative impact area when appropriate, based upon 
differences in watershed characteristics and variations in the geology, 
hydrology, and biology of the cumulative impact area. For instance, if 
the operation would create point-source or nonpoint-source discharges 
to more than one receiving stream, material damage thresholds for 
surface water may vary from one watershed within the cumulative impact 
area to another, taking into consideration differences in watershed 
characteristics. Similarly, material damage thresholds for groundwater 
may vary from one part of the cumulative impact area to another to 
reflect variations in the geology or subsurface hydrology of the 
cumulative impact area. Regulatory authorities should closely 
coordinate with the relevant state agencies in identifying appropriate 
material damage thresholds for groundwater.
    Material damage thresholds apply at all points outside the permit 
area. Final Sec.  780.21(b)(6)(iv), therefore, provides that in the 
CHIA, the regulatory authority, must identify the points within the 
cumulative impact area at which the permittee will monitor the impacts 
of the operation on surface water and groundwater outside the permit 
area and explain how those locations will facilitate timely detection 
of the impacts of the operation on surface water and groundwater 
outside the permit area.
Evaluation Thresholds
    In the preamble to the proposed rule,\84\ we invited comment on 
whether the final rule should require that the regulatory authority 
establish corrective action thresholds. We explained that corrective 
action thresholds would consist of values for water quality or quantity 
that, while not constituting material damage to the hydrologic balance 
outside the permit area, provide reason for concern that such damage 
may occur in the future if no corrective action is taken. We received 
comments both supporting and opposing the development of corrective 
action thresholds. After considering the comments received, we decided 
to include a requirement in this final rule for thresholds of this 
nature, for the reasons discussed in the preamble to Sec.  
780.21(b)(7).
---------------------------------------------------------------------------

    \84\ 80 FR 44436, 44502 (Jul. 27, 2015).
---------------------------------------------------------------------------

    However, the final rule uses the term ``evaluation thresholds'' 
rather than ``corrective action thresholds'' because exceedance of this 
type of threshold does not necessarily require initiation of corrective 
action. Instead, an evaluation threshold identifies the point at which 
the regulatory authority must investigate the cause of an adverse trend 
in water quality or quantity outside the permit area. If the 
investigation finds that the mining operation is responsible for the 
adverse trend and that the adverse trend is likely to continue in the 
absence of corrective action, Sec.  780.21(b)(7)(ii) of the final rule 
requires that the regulatory authority issue a permit revision order 
under Sec.  774.10. That order must require that the permittee reassess 
the adequacy of the PHC determination prepared under Sec.  780.20 and 
the hydrologic reclamation plan approved under Sec.  780.20 and develop 
appropriate measures to minimize the possibility that the operation 
could cause material damage to the hydrologic balance outside the 
permit area in the future. The purpose of setting evaluation thresholds 
and establishing monitoring points is to detect impacts and provide an 
early warning system to alert both the permittee and the regulatory 
authority of adverse trends that, left uncorrected, would result in 
material damage to the hydrologic balance outside the permit area if 
the trajectory of the trend remains unaltered. Early detection of 
adverse trends and timely implementation of corrective measures 
benefits both the environment and the permittee by preventing the 
development of water quality or quantity problems that may be 
difficult, expensive, or impossible to correct. Use of evaluation 
thresholds also may assist in avoiding SMCRA permit violations.
    Section 780.21(b)(7) of the final rule requires that the regulatory 
authority identify evaluation thresholds for critical water quality and 
quantity parameters. These critical parameters are characterized as 
those that could rise to the level of material damage. We expect that 
the regulatory authority will use best professional judgment in 
determining which parameters are critical. The final rule does not 
dictate how the regulatory authority must identify appropriate 
evaluation thresholds for critical parameters, which means that the 
regulatory authority has considerable flexibility. For example, the 
regulatory authority may decide to apply an across-the-board percentage 
reduction from the corresponding material damage thresholds or it may 
decide to determine evaluation thresholds on a case-by-case basis.
    An exceedance of an evaluation threshold is not itself a violation 
under SMCRA or the SMCRA permit because evaluation thresholds are not 
incorporated as a condition of the permit and do not constitute 
enforceable standards. Moreover, exceedances of evaluation thresholds 
may not necessarily be the result of the mining operation. For that 
reason, an exceedance of an evaluation threshold only triggers a 
requirement under final Sec.  780.21(b)(7) that the regulatory 
authority determine the cause of the exceedance in consultation with 
the Clean Water Act authority, as appropriate. If the mining operation 
is

[[Page 93084]]

responsible for the exceedance and if the adverse trend is likely to 
continue in the absence of corrective action, final Sec.  780.21(b)(7) 
provides that the regulatory authority must issue a permit revision 
order under Sec.  774.10. The order must require that the permittee 
reassess the adequacy of the PHC determination prepared under Sec.  
780.20 and the hydrologic reclamation plan approved under Sec.  780.22 
and develop measures to prevent material damage to the hydrologic 
balance outside the permit area. Section 780.21(c)(1) of the final rule 
provides that, upon receipt of an application for a significant permit 
revision, the regulatory authority must determine whether there is a 
need for a new or updated CHIA.
    We encourage the permittee to identify any exceedance of an 
evaluation threshold as part of its review of water monitoring records 
and notify the regulatory authority, which will then determine how to 
proceed with determining the cause of the exceedance. Additionally, the 
SMCRA inspector will, as part of each complete inspection conducted on 
a quarterly basis, review water monitoring records to determine if an 
evaluation threshold has been exceeded. If the inspector identifies an 
exceedance, the regulatory authority, in consultation with the Clean 
Water Act authority, as appropriate, will then determine the cause of 
the exceedance and, if necessary, issue an order requiring that the 
permittee submit a permit revision application, as discussed above. In 
addition, Sec.  780.21(c)(2) of the final rule provides that the 
regulatory authority must reevaluate the CHIA at intervals not to 
exceed three years to determine whether the CHIA remains accurate and 
whether the material damage and evaluation thresholds in the CHIA and 
the permit are adequate to ensure that material damage to the 
hydrologic balance outside the permit area will not occur. This review 
must consider all biological and water monitoring data from all surface 
coal mining and reclamation operations within the cumulative impact 
area.
    We are the regulatory authority in Tennessee. We have used 
evaluation thresholds successfully in our Knoxville Field Office (KFO) 
for many years, resulting in cost-effective and practical improvements 
to water quality. For example, KFO routinely uses an evaluation 
threshold of 1.0 mg/l for iron in a receiving stream. Water monitoring 
data for a site subsequently documented an exceedance of that threshold 
after the surface mining operation disturbed flooded abandoned 
underground mine workings. The permittee had attempted to divert the 
flow from those workings to a pond for treatment. However, the 
diversion was not fully successful, and some of the water entered the 
receiving stream without treatment. KFO required the permittee to 
construct a three-cell wetland treatment system and divert all water 
from the underground workings to that system, which is successfully 
treating the water. This corrective action prevented material damage to 
the hydrologic balance from occurring. KFO conducted the investigation 
jointly with the Tennessee Clean Water Act permitting authority.
Monitoring
    Final rule Sec.  780.23(a) and (b) require that each permit 
application include plans to monitor both surface water and 
groundwater. Those paragraphs also provide that the plans must be 
adequate to evaluate the impacts of the mining operation on surface 
water and groundwater in the proposed permit and adjacent areas and to 
determine in a timely manner whether corrective action is needed to 
prevent the operation from causing material damage to the hydrologic 
balance outside the permit area. Among other things, the final rule 
requires that the plans include monitoring points at the locations 
specified in the CHIA prepared by the regulatory authority under Sec.  
780.21(b)(6)(iv) of the final rule.
    Paragraphs (a)(1)(iii) and (b)(1)(iv) of final Sec.  780.23 require 
that the permittee establish a sufficient number of appropriate 
monitoring locations to evaluate the accuracy of the findings in the 
PHC determination, to identify adverse trends, and to determine, in a 
timely fashion, whether corrective action is needed to prevent material 
damage to the hydrologic balance outside the permit area. Under final 
Sec.  780.23(b)(1)(iv)(B), the surface water monitoring plan must 
include upgradient and downgradient monitoring locations in each 
perennial and intermittent stream within the proposed permit and 
adjacent areas, with the exception that no upgradient monitoring 
location is needed for a stream when the operation will mine through 
the headwaters of that stream. Similarly, under final Sec.  
780.23(a)(1)(iii)(A), the groundwater monitoring plan must include 
monitoring wells or equivalent monitoring points located upgradient and 
downgradient of the proposed operation. That requirement applies to 
each aquifer above or immediately below the lowest coal seam to be 
mined.
    Paragraphs (a)(2)(i) and (b)(2)(i) of final Sec.  780.23 specify 
that, at a minimum, the surface water and groundwater monitoring plans 
must provide for the monitoring of those parameters for which 
evaluation thresholds exist under Sec.  780.21(b)(7). In addition, 
paragraphs (a)(2)(ii) and (b)(2)(ii) of final Sec.  780.23 require 
analysis of each sample for the baseline parameters listed in Sec.  
780.19(a)(2) and for all parameters for which evaluation thresholds 
exist under Sec.  780.21(b)(7).
    Final Sec.  816.35(a)(2) requires that the permittee conduct 
groundwater monitoring through mining, reclamation, and the applicable 
revegetation responsibility period under Sec.  816.115 of the final 
rule for the monitored area. The permittee must continue to monitor 
groundwater beyond that date for any additional time needed for 
monitoring results to demonstrate that the criteria of Sec.  
816.35(d)(1) and (2) have been met, as determined by the regulatory 
authority. Paragraphs (d)(1) and (2) of Sec.  816.35 establish the 
conditions under which the regulatory authority may approve 
modification of the groundwater monitoring requirements, including the 
parameters monitored and the sampling frequency. For example, the 
regulatory authority may reduce the frequency of groundwater monitoring 
from quarterly to annual if it determines that the reduced frequency 
will be adequate to detect adverse trends in a timely manner, based on 
the rate of groundwater movement.
    Specifically, paragraphs (d)(1) and (2) of final Sec.  816.35 
provide that the permittee may request, and the regulatory authority 
may approve, modification of the groundwater monitoring plan based on a 
demonstration that, with respect to the parameter or parameters 
affected by the proposed modification, future adverse changes in 
groundwater quantity or quality are unlikely to occur and the operation 
has--
     Minimized disturbance to the hydrologic balance in the 
permit and adjacent areas;
     Prevented material damage to the hydrologic balance 
outside the permit area;
     Preserved or restored the biological condition of 
perennial and intermittent streams within the permit and adjacent areas 
for which baseline biological condition data was collected under Sec.  
780.19(c)(6)(vi) when groundwater from the permit area provides all or 
part of the base flow of those streams;
     Maintained or restored the availability and quality of 
groundwater to the extent necessary to support the approved postmining 
land uses within the permit area; and

[[Page 93085]]

     Protected or replaced the water rights of other users.
    Nothing in Sec.  816.35(d)(1) and (2) authorize complete 
discontinuance of monitoring at any monitoring location (except as 
approved under Sec.  784.40 for certain underground mines) or 
discontinuance of monitoring of all parameters for the entire operation 
before expiration of the applicable revegetation responsibility period 
under Sec.  816.115 for the monitored area. Given the typically slow 
rate of groundwater movement and the length of time needed to 
reestablish the water table in the backfilled area, discontinuance of 
monitoring before expiration of the applicable revegetation 
responsibility period under Sec.  816.115 likely would result in 
discontinuance of groundwater monitoring before groundwater within the 
reclaimed permit area has reached equilibrium with groundwater in the 
adjacent area. That result would negate the purposes of the monitoring 
program, one of which is to evaluate whether the operation has caused 
material damage to the hydrologic balance outside the permit area.
    Final Sec.  816.36 contains identical requirements for surface 
water monitoring, with the exception that paragraph (a)(2) requires 
that surface water monitoring continue through mining and during 
reclamation until the regulatory authority releases the entire bond 
amount for the monitored area under Sec. Sec.  800.40 through 800.43. 
This difference reflects the fact that surface water monitoring, unlike 
groundwater monitoring, does not involve wells that the permittee must 
seal or transfer under Sec.  816.13 of the final rule before applying 
for final bond release. In addition, final Sec.  816.36(d)(2) contains 
one additional requirement for modification of the surface water 
monitoring plan for a permit: The permittee must demonstrate that the 
operation has not precluded attainment of any designated use of surface 
water under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    Paragraph (c) of final section 780.23 further requires that the 
permit application include a plan for monitoring the biological 
condition of each perennial and intermittent stream within the proposed 
permit and adjacent areas for which baseline biological condition data 
was collected under Sec.  780.19(c)(6)(vi). The plan must be adequate 
to evaluate the impacts of the mining operation on the biological 
condition of those streams and to determine in a timely manner whether 
corrective action is needed to prevent the operation from causing 
material damage to the hydrologic balance outside the permit area.

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

    Each Clean Water Act authority is required to conduct an assessment 
of each stream within state borders to determine if the water is 
meeting all state and federal water quality criteria. If a stream is 
not meeting all state and federal water quality criteria, it is 
considered to be impaired. Under section 303(d) of the Clean Water Act, 
each state is required to submit a list of these impaired waters to the 
Environmental Protection Agency ``from time to time'' (but at least 
every three years). Section 303(d) of the Clean Water Act also requires 
each state to prioritize the waters on the impaired waters list and 
develop a plan to rehabilitate the stream so that it is able to meet 
all state and federal water quality criteria. This plan involves 
estimating the total maximum daily load (TMDL) of various water quality 
parameters from all known and reasonably foreseeable sources (point and 
non-point sources) that an impaired stream is expected to contain while 
moving along its flow path. The plan's objective is to decrease the 
pollutant load and enable the stream to meet all state and federal 
water quality standards. These TMDLs serve as a blueprint to ensure 
that an impaired stream meets all state and federal water quality 
criteria and achieves its highest designated use.
    TMDLs can be calculated to implement a narrative stream condition 
or to focus on a specific parameter.\85\ Once the TMDL is calculated, 
each new individual point-source discharge is assigned a waste load 
allocation based on its estimated discharge flow rate and parameter 
concentration. The Clean Water Act authority may adjust effluent 
limitations in existing NPDES permits to reflect the waste load 
allocation for each parameter under consideration in the TMDL. When the 
waste load allocations are implemented as concentration-based limits in 
NPDES permits, the limits are derived from the calculated waste load 
allocation for the outfall and an assumed flow rate. This concentration 
limit is expressed in concentration units applicable to each specific 
parameter and is normally given as a mass/volume (e.g., mg/L). Waste 
load allocations are often implemented in NPDES permits as mass-based 
limits and expressed as pounds per day.
---------------------------------------------------------------------------

    \85\ For example, if the Clean Water Act authority determined 
that a stream was impaired because of excess sediment, it would 
calculate the sediment load the stream could assimilate from all 
point and non-point sources while maintaining its designated use. 
That TMDL for sediment would be expressed numerically (e.g., 1000 
pounds of suspended sediment per day). The Clean Water Act authority 
would then allocate a portion of that TMDL amount among all known 
and reasonably foreseeable NPDES permits and non-point sources that 
do not have an NPDES permit.
---------------------------------------------------------------------------

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

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

    Scientific studies completed since the enactment of SMCRA and the 
adoption of our existing rules have documented the importance of 
headwater streams in maintaining the ecological health and function of 
streams down gradient of headwater streams. Headwater streams include 
all first-order and second-order streams without regard to whether 
those streams are perennial, intermittent, or ephemeral. In 2015, U.S. 
Environmental Protection Agency published a report summarizing the 
findings of peer-reviewed studies of headwater streams and wetlands and 
the impact they have on the physical, chemical, and biological 
integrity of downstream

[[Page 93086]]

waters.\86\ The studies and the report generally do not differentiate 
among perennial, intermittent, and ephemeral streams, but the report 
emphasizes that ephemeral streams are an important component of 
headwater streams and that they have an effect on the form and function 
of downstream channels and aquatic life. The report states that the 
evidence unequivocally demonstrates that the stream channels, riparian 
wetlands, floodplain wetlands, and open waters that together form river 
networks are clearly connected to downstream waters in ways that 
profoundly influence downstream water integrity.\87\ According to the 
report, the body of literature documenting connectivity and downstream 
effects is most abundant for perennial and intermittent streams and for 
riparian and floodplain wetlands.\88\ The report further states that, 
although less abundant, the evidence for connectivity and downstream 
effects of ephemeral streams is strong and compelling, particularly in 
context with the large body of evidence supporting the physical 
connectivity and cumulative effects of channelized flows that form and 
maintain stream networks.\89\
---------------------------------------------------------------------------

    \86\ U.S. Environmental Protection Agency. Connectivity of 
Streams and Wetlands to Downstream Waters: A Review and Synthesis of 
the Scientific Evidence (Final Report). U.S. Environmental 
Protection Agency, Washington, DC. EPA/600/R-14/47F, 2015. Available 
at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414&CFID=62302143&CFTOKEN=44785139 (last 
accessed October 26, 2016).
    \87\ Id. at ES-7.
    \88\ Id.
    \89\ Id.
---------------------------------------------------------------------------

    The report identifies five principal contributions of ephemeral 
streams: (1) Providing streamflow to larger streams; (2) conveying 
water into local storage compartments such as ponds, shallow aquifers, 
or streambanks that are important sources of water for maintenance of 
the baseflow in larger streams; (3) transporting sediment, woody 
debris, and nutrients; (4) providing the biological connectivity that 
is necessary either to support the life cycle of some invertebrates or 
to facilitate the transport of terrestrial invertebrates that serve as 
food resources in downstream communities; and (5) influencing 
fundamental biogeochemical processes such as the assimilation and 
transformation of nitrogen that may otherwise have detrimental impacts 
on downstream communities. In addition, headwater streams, including 
ephemeral and intermittent streams, shape downstream channels by 
accumulating and gradually or episodically releasing stored materials 
such as sediment and large woody debris.\90\ These materials help 
structure stream and river channels by slowing the flow of water 
through channels and providing substrate and habitat for aquatic 
organisms.\91\
---------------------------------------------------------------------------

    \90\ Id. at ES-8.
    \91\ Id.
---------------------------------------------------------------------------

    Our previous rules included no protections for ephemeral streams. 
Consistent with the findings of the U.S. Environmental Protection 
Agency report and other studies, our proposed rule included some 
protections for ephemeral streams, tailored to their hydrologic and 
ecological functions. We also invited comment on whether we should 
extend equal protection to all streams, without regard to whether the 
stream is perennial, intermittent, or ephemeral. See 80 FR 44451 (Jul. 
27, 2015).
    We received numerous comments from environmental groups advocating 
that ephemeral streams be protected in the same manner as perennial and 
intermittent streams. One commenter stated: ``OSMRE's analysis should 
start from a presumptive rule of equal protection for all streams, and 
any assertion of countervailing business impacts should be considered 
only if it is backed by evidence included in the administrative 
record.'' Many environmental commenters asserted that a strong stream 
protection rule must include protection of ephemeral streams because 
they are an essential element of the hydrologic balance.
    In contrast, industry commenters opposed affording ephemeral 
streams the same protections as intermittent and perennial streams. 
This paragraph summarizes some of those arguments:
     The U.S. Army Corps of Engineers, an agency with 
considerable expertise on the subject of streams, rarely requires 
returning all ephemeral features to the postmining landscape.
     Some ephemeral streams are the result of anthropogenic 
activities and may be undesirable.
     Many ephemeral streams will find their own way back onto 
the landscape, depending on many factors including the final 
configuration of the reclamation. Restoring these lesser drainages is a 
waste of effort when nature will do it better.
     Disallowing the placement of sediment ponds in ephemeral 
drainages would result in logistically difficult or impossible 
situations or at least a greatly increased disturbance from additional 
ditching and a larger number of ponds.
     It makes no sense and is counterproductive to reconstruct 
erosional features when reclamation provides the opportunity to reshape 
the landscape to reduce erosion.
     Ephemeral streams have minimal if any biological 
components.
     In Wyoming's Powder River Basin, extending protection to 
ephemeral streams could result in 2,800 tons of coal per foot of 
channel being left unmined. This equates to 15 million tons of coal 
sterilized for every mile of channel that could not be mined. Surface 
coal mines in Wyoming can have upwards of 100 miles of ephemeral 
channels within the permit boundary. If all of the channels were to 
become unmineable, approximately 1.5 billion tons of coal for each mine 
would be sterilized.
     Typical mining techniques in the Powder River Basin 
utilize draglines and truck shovels. Efficient dragline operations 
require long linear pits. If ephemeral streams become unmineable, these 
types of operations will no longer be economic or efficient because of 
the number of ephemeral channels that bisect these pits.
     The Bureau of Land Management requires that a bonus bid be 
paid at the time a federal coal lease is awarded. To date, coal 
underlying ephemeral stream channels has been considered recoverable, 
which means that companies have paid bonus bids ranging from $0.85 to 
$1.35 per ton for coal underlying ephemeral streams in leases awarded 
during the past 5 years. If ephemeral channels are considered 
unmineable, this will create a significant economic hardship for the 
mining companies. Federal and state governments also will experience a 
loss of revenue.
    Many commenters thought that the term ``ephemeral stream'' included 
all conveyances that were not either perennial or intermittent streams. 
However, the definition of ``ephemeral stream'' that we are adopting in 
Sec.  701.5 as part of this final rule addresses this issue by 
providing that ephemeral streams include only those conveyances with 
channels that display both a bed-and-bank configuration and an ordinary 
high water mark.
    After evaluating the comments, reviewing the scientific literature, 
and weighing potential costs and benefits, we decided not to extend the 
same protections to ephemeral streams that we do to intermittent and 
perennial streams.
    However, as part of this final rule, we adopted most of the added 
protections for ephemeral streams that we included in our proposed 
rule. The final rule will protect the important role that ephemeral 
streams perform within watersheds including providing

[[Page 93087]]

protection and maintenance of downstream uses, ecological services, and 
the hydrologic balance of larger streams because of the impact 
ephemeral streams have on the form and function of downstream channels 
and aquatic life. Adopting these protections should ensure that 
ephemeral streams on reclaimed mine sites continue to provide the 
ecological services identified in the U.S. Environmental Protection 
Agency report while not unduly restricting mining through those 
streams. This approach is consistent with the purposes of SMCRA, as 
enumerated in section 102 of the Act.\92\ In particular, it will 
protect society and the environment from the adverse effects of surface 
coal mining operations, as provided in paragraph (a); assure that 
surface coal mining operations are conducted so as to protect the 
environment, as provided in paragraph (d); and strike a balance between 
environmental protection and the Nation's energy needs, as provided in 
paragraph (f). Although only certain requirements apply to ephemeral 
streams, as discussed in final rule Sec.  780.27, these requirements 
minimize impacts to ephemeral streams.
---------------------------------------------------------------------------

    \92\ 30 U.S.C.1202.
---------------------------------------------------------------------------

    Proposed Sec. Sec.  780.19(c)(6) and 784.19(c)(6) required that the 
permit applicant identify and map all ephemeral streams within the 
proposed permit and adjacent areas. Those proposed rules also required 
that the applicant describe the physical and hydrologic characteristics 
of those streams in detail, as well as any associated vegetation in the 
riparian zone if one exists. In addition, they required that the 
applicant assess the biological condition of a representative sample of 
those ephemeral streams. The final rule applies these proposed 
requirements only to ephemeral streams within the proposed permit area 
because those are the only ephemeral streams that the proposed 
operation would disturb and for which the operation would incur 
reclamation requirements. Requiring this information for ephemeral 
streams within the adjacent area would be costly and time-consuming and 
would not assist the regulatory authority in reviewing the permit 
application because no performance standards apply to ephemeral streams 
in the adjacent area. In addition, the final rule does not include the 
proposed requirement for baseline information on the biological 
condition of ephemeral streams because no scientifically defensible 
protocol currently exists for use in ephemeral streams for that 
purpose.
    Proposed Sec. Sec.  780.20, 780.21, 784.20, and 784.21 required 
that the determination of the probable hydrologic consequences of 
mining (PHC determination) and the cumulative hydrologic impact 
assessment (CHIA) include consideration of impacts on the biological 
condition of ephemeral streams. Those sections of the final rule do not 
include this proposed requirement because established and 
scientifically defensible protocols do not currently exist for use in 
determining the biological condition of ephemeral streams.
    Proposed Sec. Sec.  780.19(c)(3), 780.20(a)(5)(iv), 784.19(c)(3), 
and 784.20(a)(5)(iv) included peak flow baseline data collection and 
analysis requirements for ephemeral streams within the proposed permit 
and adjacent areas. The final rule does not include these requirements 
because this information is unnecessary for the analysis of the 
proposed operation's impacts on flooding that the PHC determination 
must contain. The baseline precipitation data required by final 
Sec. Sec.  780.19(c)(5) and 784.19(c)(5) in combination with the 
description of the general stream-channel configuration of ephemeral 
streams within the proposed permit area required by final Sec. Sec.  
780.19(c)(6) and 784.19(c)(6) will provide all necessary information 
needed for that analysis, given that ephemeral streams flow only in 
direct response to precipitation events.
    Proposed Sec. Sec.  780.12(d)(1) and 784.12(d)(1) required that the 
backfilling and grading plan in the reclamation plan include contour 
maps, cross-sections, or models that show in detail the anticipated 
final surface configuration, including drainage patterns, of the 
proposed permit area. The final rule adopts those provisions as 
proposed. Final Sec. Sec.  780.12(b)(3) and 784.12(b)(3) also provide 
that the reclamation timetable must include establishment of the 
surface drainage pattern and stream-channel configuration approved in 
the permit, including construction of appropriately-designed perennial, 
intermittent, and ephemeral stream channels to replace those removed by 
mining. Proposed Sec. Sec.  780.28(c)(1) and 784.28(c)(1) required that 
the postmining drainage pattern, including ephemeral streams, be 
similar to the premining drainage pattern, with limited exceptions. 
Sections 780.27(b) and 784.27(b) of the final rule adopt these 
provisions in revised form for ephemeral streams. They allow variances 
from the premining drainage pattern when the regulatory authority finds 
that a different pattern or configuration is necessary or appropriate 
to ensure stability; prevent or minimize downcutting or widening of 
reconstructed stream channels and control meander migration; promote 
enhancement of fish and wildlife habitat; accommodate any anticipated 
temporary or permanent increase in surface runoff as a result of mining 
and reclamation; accommodate the construction of excess spoil fills, 
coal mine waste refuse piles, or coal mine waste impounding structures; 
replace a stream that was channelized or otherwise severely altered 
prior to submittal of the permit application with a more natural, 
relatively stable, and ecologically sound drainage pattern or stream-
channel configuration; or reclaim a previously mined area.
    Proposed Sec. Sec.  780.28(b)(3) and 784.28(b)(3) provided that, 
after mining through an ephemeral stream, the permittee must plant 
native species within a 100-foot corridor on both sides of the 
reconstructed stream. Sections 780.27(c), 784.27(c), 816.57(d), and 
817.57(d) of the final rule adopt this requirement with some revisions. 
The streamside vegetative corridor must be consistent with natural 
vegetation patterns. The streamside vegetative corridor requirement 
would not apply to prime farmland or when establishment of a corridor 
comprised of native species would be incompatible with an approved 
postmining land use that is implemented before final bond release. 
Establishment of a streamside vegetative corridor is critical to 
ensuring restoration of the nutrient and organic matter transport 
functions of ephemeral streams.

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

    Proposed Sec. Sec.  780.19(e)(2) and 784.19(e)(2) would have 
required the use of multimetric bioassessment protocols to assess the 
baseline ecological function of perennial, intermittent, and ephemeral 
streams and to establish stream restoration criteria (i.e., the point 
at which ecological function will be considered restored) for perennial 
and intermittent streams. Proposed Sec. Sec.  780.23(c) and 784.23(c) 
also would have required use of these protocols to monitor the 
biological condition of intermittent and perennial streams during 
mining and reclamation.
    We received comments both in support of and in opposition to the 
use of macroinvertebrate sampling and associated indexes for those 
purposes.

[[Page 93088]]

Some comments were general, while others singled out the use of an 
index of biological integrity (IBI) for baseline stream assessment and 
monitoring during mining and reclamation when discussing support or 
opposition to this requirement. The proposed rule required IBIs to 
include macroinvertebrate sampling. The IBIs would be used to develop a 
value that would provide an objective measure to describe various 
ecological characteristics found during the field surveys. This value 
would then be compared to an index that is established for designated 
uses under the Clean Water Act to assess the quality of the stream 
before, during, and after mining. This IBI system is a well-tested and 
robust tool to identify impacts on the health of perennial streams. 
IBIs and other scientifically defensible protocols are becoming more 
widely established for intermittent streams, but are not yet widely 
used across the nation. IBIs and other scientifically defensible 
protocols for assessing ephemeral streams have not been widely used to 
date, and when they have been, they have been most often used to 
characterize biological differences among ephemeral, intermittent, and 
perennial streams or biological changes with varying hydrological 
conditions. The proposed rule would have required the establishment of 
separate IBI protocols for all three types of streams: Perennial, 
intermittent, and ephemeral.
    As discussed in Part IV, section O of this preamble, several 
commenters criticized our proposal to treat ephemeral streams in the 
same manner as intermittent and perennial streams. These commenters 
strongly encouraged us to remove requirements to assess the baseline 
condition of ephemeral streams using bioassessment protocols that 
sample macroinvertebrate populations within ephemeral streams. They 
claimed it would yield no valid data for assessing the baseline 
condition of SMCRA-related activities and would be unduly costly. We 
agree. The final rule does not include assessment of biological 
condition requirements related to ephemeral streams.
    In addition, commenters suggested that there are other 
scientifically valid protocols that should be included as options for 
baseline stream assessment and monitoring. According to these 
commenters, these other protocols are also robust, scientifically 
defensible methods developed and applied by states, territories, and 
tribes. They include predictive and discriminant modeling approaches. 
We agree and have added these as acceptable methods in the final rule.
    In light of the comments received, we identified and analyzed other 
options that commenters suggested for assessing the baseline condition 
of and monitoring streams: The Rapid Bioassessment Protocol III 
(RBPIII), which is set out in the 1989 EPA Publication, ``Rapid 
Bioassessment Protocols for Use in Streams and Rivers;'' the Before-
After-Control-Impact design (BACI); and hydrogeomorphic sampling 
protocols. We also considered using IBIs that were designed for 
perennial streams to assess the baseline condition of and monitor 
intermittent and ephemeral streams (as is occasionally done by Clean 
Water Act authorities).
    Our analysis identified some positive attributes of the RBPIII 
protocol. It would provide a more thorough baseline assessment of the 
ecological function and biological condition of the premining site than 
some other methods. It would demonstrate with greater certainty whether 
or not the permittee had minimized the adverse effects of coal mining 
on upstream and downstream waters. It is based on sound scientific 
principles (quantitative or semi-quantitative designs that can be 
analyzed statistically). Finally the RBPIII is relatively easy to use 
and can be rapidly deployed. However, the RBPIII also has significant 
drawbacks. It would require the regulatory authority or the permittee 
to establish, assess, and monitor a set of reference streams on a 
permit-by-permit basis. This in turn would pose an issue of statistical 
validity: The variability between the relatively small number of 
reference streams and the streams potentially affected by the permitted 
operation could be great enough to mask significant impacts that mining 
might have on the affected streams. Differences in methodology (e.g., 
sample collection protocols, data analysis, etc.) mean that the RPBIII 
may not be comparable with the scientifically defensible protocols such 
as the IBI that we proposed to evaluate perennial streams. Using two 
different protocols, moreover, would significantly increase time and 
costs associated with assessing the baseline condition of and 
monitoring the effects of mining on streams. Finally, the RBPIII 
protocol is over 20 years old. This in and of itself is not a reason to 
eliminate this protocol; however, since its first publication, it has 
been updated twice to reflect a focus on national standardization, not 
to small-scale projects as originally designed and its suggested use by 
the commenters.
    Our analysis also showed positive and negative aspects to using the 
BACI protocols. On the positive side, BACI analysis would be specific 
to each permit area or even each particular stream and would allow the 
regulatory authority to tailor monitoring and baseline assessment to 
each permit. This could allow for variances from the kind of state or 
regional standard that an IBI or other larger-scale protocols might 
impose. BACI analysis could be less costly than some other approaches 
because the regulatory authority can perform one analysis that 
evaluates multiple streams, including every stream in the permit area. 
Under this kind of analysis one premining sampling event and additional 
postmining samplings would result in a statistically valid analysis. On 
the negative side, the BACI analysis requires use of control sites. 
This could create a number of problems in the context of SMCRA permits. 
First, if the control site is not selected correctly, it could result 
in a skewed analysis or a situation in which an analysis may not be 
possible after mining is complete. Second, under this kind of analysis, 
the control sites must remain in their original condition for the 
duration of the mining operation. This may not be practicable because 
those sites might be beyond the permittee's control. They also could be 
affected by activities other than mining, such as industrialization, 
logging, or urbanization within the watershed. Third, while the BACI 
protocol may be cheaper than some alternatives, permittees still would 
incur additional costs for sampling not only baseline and impacted 
streams but the control streams. Fourth, additional control streams 
might have to be incorporated into the permit area if enough suitable 
control streams are not present in the initially designed permit area. 
This could lead to additional costs and permitting delays. Fifth, 
control sites would have to be identified and monitored for each 
individual permit. This would increase costs and might lead to 
permitting delays. Finally, one of the greatest drawbacks of the BACI 
analysis is that, although it can assess large changes to biological 
condition and ecological function, it may miss smaller changes. Indeed, 
this kind of analysis might not be any more protective than the 
previous regulations.
    We found no benefit to using hydrogeomorphic protocols. Although 
they are easy to implement, they do not require macroinvertebrate 
sampling. In general, they provide no greater benefit than the types of 
analysis that have been used in connection with our previous 
regulations.
    Finally we determined that it is not currently appropriate to use 
protocols

[[Page 93089]]

developed for perennial streams to assess the baseline condition of and 
to monitor intermittent streams. As commenters pointed out, some Clean 
Water Act authorities, in the exercise of their professional judgment, 
have occasionally done this. We have concluded, however, that this 
approach has not been used enough to justify requiring it in our rule.
    In sum, after consideration of these other methods, as provided in 
final Sec. Sec.  780.19(c)(6)(vii) and 784.19(c)(6)(vii), we determined 
that the best technology currently available for baseline assessment 
and monitoring purposes for perennial streams is the use of IBIs or 
other equally scientifically defensible stream assessment protocols 
developed and applied by states, territories, and tribes. These other 
scientifically defensible stream assessment protocols would include 
predictive and discriminant modeling approaches, such as those in place 
in many western states. The final rule requires use of these methods 
and protocols for all perennial streams within and adjacent to the 
proposed permit area. Some states and regions have developed indices of 
biotic integrity or bioassessment protocols for intermittent streams. 
In those instances, final Sec. Sec.  780.28(g)(3)(iii) and 
780.19(c)(6)(vii) and their counterparts in Sec. Sec.  784.28 and 
784.19 require use of those protocols to assess the baseline condition 
of and to monitor intermittent streams. Requiring these types of 
baseline assessments and monitoring protocols instead of the RBPIII, 
BACI, hydrogeomorphic protocols, and instead of using perennial stream 
indices for intermittent and ephemeral streams will encourage the 
further development of scientifically defensible methods and protocols.
    We realize, however, that at present few scientifically defensible 
protocols have been established for bioassessments of intermittent 
streams. In the final rule, we do not require that SMCRA regulatory 
authorities develop new protocols for this purpose, but we do require 
them to reevaluate the best technology currently available for 
intermittent streams every 5 years and make any appropriate adjustments 
to account for new protocols that may have been developed. See Sec.  
780.28(g)(3)(iv)(B). Until scientifically defensible protocols are 
developed for intermittent streams, we are requiring baseline 
assessment and monitoring of these streams using a description of the 
water quality, water quantity, stream channel configuration, a 
quantitative assessment of the streamside vegetation, and an initial 
cataloging of the stream biota. For further detail, please see our 
discussions of Sec. Sec.  780.19, 780.27, 780.28, 816.56, and 816.57 in 
this preamble.

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

    Many commenters argued that there is no scientific support, in the 
form of published peer-reviewed studies, for the proposition that 
reconstructed streams can effectively replace streams that existed 
before mining, especially in regard to ecological function and 
premining biology. In a similar vein, some commenters urged us to 
prohibit mining activities within areas in which streams occur because 
stream restoration is unattainable. For example, one commenter stated: 
``[T]he unproven ability to fully restore the functions and uses of 
streams damaged by subsidence necessitates that the rule require 
avoidance of such damage as a primary consideration.'' According to 
commenters, we did not provide sufficient evidence that the ecological 
condition of streams could be restored with the available technology 
and science. They alleged that our rule created an impossible standard 
of reclamation, a standard that had not been demonstrated to be 
achievable by operators or enforceable by regulatory authorities.
    Some industry commenters agreed that full restoration of perennial 
and intermittent streams is not attainable. According to those 
commenters, we should not adopt a rule that establishes an unattainable 
standard.
    We agree that full restoration of the biology and ecological 
function of mined-through streams is not always possible and that 
restoration of those streams has often fallen short of goals. However, 
our experience indicates that restoration of impaired streams is 
possible after mining. Streams that were not attaining their designated 
aquatic life use have been shown to improve enough, through restoration 
techniques, to be removed from the section 303(d) \93\ list of impaired 
waters.\94\
---------------------------------------------------------------------------

    \93\ 33 U.S.C. 1313(d).
    \94\ See generally, U.S. Environmental Protection Agency. 
Nonpoint Source Success Stories, U.S. Environmental Protection 
Agency Web page found at https://www.epa.gov/polluted-runoff-nonpoint-source-pollution/nonpoint-source-success-stories. (last 
accessed October 5, 2016). U.S. Environmental Protection Agency. 
2011. Document #EPA841[hyphen]R[hyphen]11[hyphen]003. FY2010 
Assessment of Improving and Recovered Waters with Total Maximum 
Daily Loads (TMDLs). Office of Water, U.S. Environmental Protection 
Agency, Washington DC. Available online at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/results_index.cfm 4 pp.
---------------------------------------------------------------------------

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

    \95\ Barbara Doll, et al., Identifying Watershed, Landscape, and 
Engineering Design Factors that Influence the Biotic Condition of 
Restored Streams. Water, 8(4), p.151 (2016).
    Derek B. Booth, et al., Integrating Limiting-Factors Analysis 
with Process-Based Restoration to Improve Recovery of Endangered 
Salmonids in the Pacific Northwest, USA. Water, 8(5), p.174 (2016).
    Eric R. Merriam & J. Todd Petty, Under siege: Isolated 
tributaries are threatened by regionally impaired metacommunities. 
560 Science of The Total Environment, 170-178 (2016).
    Moritz Leps et al., 2016. Time is no healer: Increasing 
restoration age does not lead to improved benthic invertebrate 
communities in restored river reaches. 557 Science of The Total 
Environment, 722-732 (2016).
    Jennifer J. Follstad Shah et al., 2007. River and riparian 
restoration in the Southwest: Results of the National River 
Restoration Science Synthesis Project. 15 (3) Restoration Ecology, 
550-562 (2007).
    S.W. Miller et al., 2010. Quantifying Macroinvertebrate 
Responses to In[hyphen]Stream Habitat Restoration: Applications of 
Meta[hyphen]Analysis to River Restoration. 18(1) Restoration 
Ecology, 8-19 (2010).
---------------------------------------------------------------------------

    This final rule improves our stream assessment and restoration 
requirements and analyzes these resources listed in the above 
paragraph, beginning at the application process. Upstream habitat and 
water quantity and quality will be assessed as part of the baseline 
data required in a permit application. Under the final rule, streambank 
and buffer zone vegetation will receive greater protection or 
restoration, including using native species (i.e., naturally occurring 
leaf litter and other organic matter). The implementation of the final

[[Page 93090]]

rule will also increase the amount of reforested habitat, which should 
improve watershed quality. Baseline data will contain information on 
streams potentially affected by the proposed operation, including 
bioassessments of perennial and some intermittent streams that 
regulatory authorities can use to determine the potential of these 
streams to provide biological emigrants (plants, animals, fungi, etc.) 
to reconstructed segments of connected streams. This is not to say that 
the reclamation of all streams is now possible or will now become a 
timely and precise exercise; careful consideration will need to be 
taken to understand the potential for restoration of each stream, and 
the economic and biological cost associated with these determinations.
    This final rule is intended to increase protection or restoration 
of perennial and intermittent streams and related environmental 
resources, as well as to ensure that permittees and regulatory 
authorities make use of advances in science and technology. The final 
rule provides that restoration of ecological function does not mean 
that the restored stream must precisely mirror the premining condition. 
For example, as section 780.28(g)(3)(ii)(A) of our final rule states, a 
demonstration of ecological function does not require that the 
reconstructed stream have precisely the same biological condition or 
biota as the stream segment did before mining. This is consistent with 
current, scientifically defensible bioassessment protocols used 
throughout a wide range of regulatory arenas, which allow for a natural 
range in variation of reference sites to which the assessments are 
compared.\96\ These bioassessment protocols use genus-level 
identification counts of macroinvertebrates to determine biological 
condition, where available, and to calculate values derived from 
measures such as species richness, composition, tolerance, feeding, and 
habitat measures that determine stream quality. Assessment of the 
biological condition of these streams is based on these values, not 
directly on the species that were first sampled. This change allows for 
some variation from the initial stream compared to the reconstructed 
stream as long as the reconstructed stream is within a suitable range 
according to the results of the bioassessment protocol used.
---------------------------------------------------------------------------

    \96\ For example: Michael T. Barbour et al. Rapid bioassessment 
protocols for use in wadeable streams and rivers. Periphyton, 
Benthic Macroinvertebrates, and Fish (2nd edn.). U.S. Environmental 
Protection Agency, Office of Water, Washington, DC EPA (1999).
---------------------------------------------------------------------------

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

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

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

    \97\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    The preamble to our proposed rule discusses the history of the 1983 
stream buffer zone rule in significant detail (see 80 FR 44447-44451, 
Jul. 27, 2015). It includes the following statement: ``Historically, we 
and some state regulatory authorities applied the 1983 stream buffer 
zone rule in a manner that allowed the placement of excess spoil fills, 
refuse piles, slurry impoundments, and sedimentation ponds in 
intermittent and perennial streams within the permit area.'' The 
specific language of the 1983 rule allowed the regulatory authority to 
authorize mining activities within the stream buffer zone upon finding 
that ``[s]urface mining activities will not cause or contribute to the 
violation of applicable State or Federal water quality standards, and 
will not adversely affect the water quantity and quality or other 
environmental resources of the stream.'' As discussed in the preamble, 
that provision has been subject to numerous court challenges and was 
substantially revised by the now-vacated 2008 stream buffer zone rule. 
The 1983 rule will remain the standard applied by state regulatory 
authorities until the provisions of our final rule have been adopted by 
those individual regulatory programs.
    While we have not adopted a strict prohibition standard for mining 
activities within the stream buffer zone, we have in our final rule 
required that certain conditions be met in order for the regulatory 
authority to authorize such activities. The final rule allows mining 
activities in or within 100 feet of an intermittent or perennial stream 
only if the permit applicant makes certain demonstrations and the 
regulatory authority makes certain findings. When the applicant 
proposes to mine through a perennial or an intermittent stream, these 
required findings include the ability of the permittee to actually 
restore the form, hydrologic function, and ecological function of the 
stream as part of the reclamation process. We intend these requirements 
to ensure that the reconstructed stream will actually have sufficient 
base flow, water quality, and an aquatic community similar to that 
which existed prior to mining. As discussed more comprehensively in

[[Page 93091]]

final rule Sec.   780.28, in general, mining activities in, through, or 
adjacent to perennial or intermittent streams must not: cause or 
contribute to a violation of water quality standards; cause material 
damage to the hydrologic balance outside the permit area; result in 
conversion of a stream segment from perennial to intermittent, 
perennial to ephemeral, or intermittent to ephemeral; and must be 
designed to minimize adverse impacts on fish, wildlife and related 
environmental values to the extent possible using the best technology 
currently available.
    The final rule allows burial of intermittent or perennial streams 
with excess spoil or coal mine waste only if the permit applicant 
demonstrates and the regulatory authority finds that the loss of 
resources associated with the burial of a stream will be offset through 
fish and wildlife enhancement measures commensurate with the magnitude 
of the adverse impacts from burial of the stream. In addition, the area 
where proposed enhancement activities are to occur must be incorporated 
into the permit and bonded for reclamation. In approving a plan that 
provides for the appropriate level of enhancement, the regulatory 
authority also must establish standards for determining when 
reclamation bonds can be released for such areas. This regulatory 
approach ensures that the desired results are actually achieved, and, 
if they are not, the regulatory authority will be in a position to use 
the proceeds from forfeiture of the reclamation bonds to accomplish the 
desired objective of the approved reclamation plan.

V. Explanation of Organizational Changes and Plain Language Principles

    The final rule includes organizational changes for clarity. Those 
changes serve several purposes, including--
     Breaking up overly long sections and paragraphs into 
multiple shorter sections and paragraphs for ease of reference and 
improved comprehension.
     Renumbering sections in the underground mining rules to 
align their numbering with the corresponding sections in the surface 
mining rules. This change improves ease of reference and the user-
friendliness of our rules.
     Moving permitting requirements from subchapter K 
(performance standards) to subchapter G to consolidate permitting 
requirements in subchapter G.
     Restructuring subchapter G to better distinguish between 
baseline information requirements and reclamation plan requirements.
     Removing redundant, suspended, and obsolete provisions.
    In general, we drafted the final rule using plain language 
principles, consistent with section 501(b) of SMCRA, 30 U.S.C. 1251(a), 
which provides that regulations must be ``concise and written in plain, 
understandable language,'' and Executive Order 13563, which provides 
that our regulatory system ``must ensure that regulations are 
accessible, consistent, written in plain language, and easy to 
understand.'' \98\ In addition, a June 1, 1998, Executive Memorandum on 
Plain Language in Government Writing \99\ requires the use of plain 
language in all proposed and final rulemaking documents published after 
January 1, 1999. The Office of the Federal Register also encourages the 
use of plain language in writing regulations, as set forth in detail at 
www.plainlanguage.gov and associated links.
---------------------------------------------------------------------------

    \98\ 76 FR 3821 (Jan. 21, 2011).
    \99\ 63 FR 31883-31886 (Jun. 10, 1998).
---------------------------------------------------------------------------

    Plain language requirements vary from one document to another, 
depending on the intended audience. Plain language documents have 
logical organization and easy-to-read design features like short 
sections, short sentences, tables, and lots of white space. They use 
common everyday words (except for necessary technical terms), pronouns, 
the active voice, and a question-and-answer format when feasible.
    The final rule text and preamble use the pronouns ``we,'' ``us,'' 
and ``our'' to refer to OSMRE, and the pronouns ``I,'' ``you,'' and 
``your'' to refer to a permit applicant or permittee. We avoid use of 
the word ``shall'' in the rule text and preamble, except in quoted 
material. Instead, we use ``must'' to indicate an obligation, ``will'' 
to identify a future event, and ``may not'' to convey a prohibition.

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

    Except as otherwise discussed in the preamble to this final rule, 
we are adopting the regulations as proposed on July 27, 2015, for the 
reasons set forth in the preamble to the proposed rule. In this portion 
of the preamble to the final rule, we explain our responses to the 
comments that we received on the text of the proposed regulations. We 
also discuss how we revised the proposed regulations in response to 
those comments and other considerations. However, in general, we do not 
discuss syntax improvements, plain language changes, and other 
revisions of a minor nature.
    This discussion refers to previous, existing, proposed, and final 
rules and regulations. In general, we use ``previous'' when we refer to 
regulations that will no longer exist once this final rule is 
effective. We use ``existing'' to describe regulations that are 
unaffected by this rulemaking. ``Proposed'' regulations are the 
regulations set forth in our July 27, 2015, proposed rule. The term 
``final'' refers to the regulations that we are adopting today, 
including existing regulations that are redesignated in this 
rulemaking.

A. Part 700--General

Section 700.11: What coal exploration and coal mining operations are 
subject to our rules?
Final Paragraph (d): Termination and Reassertion of Jurisdiction
    We proposed to revise Sec.  700.11(d) to add clarity to the 
regulations, to conform them with proposed revisions to 30 CFR part 800 
concerning financial assurances for treatment of long-term discharges, 
and to add provisions consistent with a court decision that resulted 
from a previous rulemaking. The rationale for the proposed revisions is 
set forth at 80 FR 44436, 44466-44467 (Jul. 27, 2015). We received no 
comments specific to proposed paragraphs (d)(1) and (4), so they are 
not discussed below.
Final Paragraph (d)(2): Termination of Jurisdiction for Permanent 
Regulatory Program Sites
    One commenter expressed concern that replacement of the term 
``increment'' with ``portion'' in the introductory language of 
paragraph (d)(2) implies that a permittee may apply for bond release on 
a portion of a permit that has not been separately bonded as an 
increment. According to the commenter, bonds and jurisdiction apply to 
the entire permit or to the permit increment for which bond is posted. 
The commenter stated that our permitting, bonding, and termination of 
jurisdiction regulations need to use the same terminology so that 
regulators and the public can easily discern which sections of a mine 
are active or in reclamation and which sections are eligible for 
release and eventual termination of jurisdiction.
    Our regulations restrict termination of jurisdiction to those areas 
for which bond has been fully released, but otherwise, we do not agree 
that our permitting, bonding, and termination of jurisdiction 
regulations must use the same terminology or that the boundaries of 
each original permit increment must remain inviolate. Under Sec.  
800.13(b),

[[Page 93092]]

with the approval of the regulatory authority, we have always allowed 
clearly defined portions of the permit area requiring extended 
liability to be separated from the original area and bonded separately. 
The change in terminology from ``increment'' to ``portion'' in our 
termination of jurisdiction regulations as part of this final rule is 
consistent with both the language and approach outlined in Sec.  
800.13(b). The public should have no difficulty identifying the 
portions of the permit area for which bond has been released and 
jurisdiction has been terminated because Sec.  800.13(b) requires that 
the boundaries of each portion be clearly defined.
    One commenter opposed the proposed revisions to this paragraph 
because, in the commenter's opinion, they would require that, even in 
primacy states, bond release and termination of jurisdiction be based 
upon 30 CFR part 800 rather than the provisions of the applicable 
regulatory program. That was not the intent of our proposed revisions. 
To avoid this misinterpretation, final paragraph (d)(2)(ii) provides 
for termination of jurisdiction whenever the regulatory authority has 
made a final decision to fully release the performance bond or 
financial assurance in accordance with the applicable regulatory 
program. The revised language is similar to the language of paragraph 
(d)(2)(i) in this respect.
    The commenter also alleged that proposed paragraph (d)(2)(ii)(B), 
which concerns sites with postmining discharges requiring long-term 
treatment, provided confirmation that we intend to retain jurisdiction 
in perpetuity. That was not the intent of the proposed provision, but 
we understand how it could be misinterpreted. We have determined that 
proposed paragraph (d)(2)(ii)(B) is unnecessary because it essentially 
duplicates Sec.  800.18(i) and because proposed paragraph (d)(2)(ii)(A) 
refers to financial assurances as well as performance bonds. Therefore, 
we are not adopting proposed paragraph (d)(2)(ii)(B). Final paragraph 
(d)(2)(ii) includes only proposed paragraph (d)(2)(ii)(A) and is 
renumbered to accommodate the removal of proposed paragraph 
(d)(2)(ii)(A).
Final Paragraph (d)(3): Reassertion of Jurisdiction
    Several commenters opposed this paragraph as unreasonable. Others 
alleged that it was illegal because it would apply retroactively. 
Others alleged that it would be inconsistent with SMCRA because it 
would result in the permittee having an eternal possibility of 
reassertion of jurisdiction. Several commenters asserted that SMCRA 
provides no authority for the assertion of jurisdiction over mining 
operations that have obtained bond release.
    These comments reflect a perspective on the principle of 
reassertion of jurisdiction under SMCRA, which is now a matter of 
settled law. In 1991, the U.S. Court of Appeals for the District of 
Columbia Circuit upheld the 1988 termination of jurisdiction rules at 
30 CFR 700.11(d), which include a similar provision requiring 
reassertion of jurisdiction under specified circumstances. See Nat'l 
Wildlife Fed'n v Lujan, 950 F.2d 765, 770 (D.C. Cir. 1991). 
Specifically, with respect to the reassertion of jurisdiction under 
SMCRA, the court held that:

    The question is whether the effect of the regulation comports 
with the statutory scheme. We believe that it does in light of the 
language of the regulation and the interpretation provided in both 
the preamble and the Secretary's brief here.
    The preamble adopts an objective standard, stating that 
jurisdiction must be re-asserted whenever ``any reasonable person 
could determine'' that fraud, collusion or misrepresentation had 
occurred. [53 FR 44359] (1988). The Secretary's brief not only 
adopts this standard but also clarifies its scope:

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

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

    \100\ Nat'l Wildlife Fed'n v. Lujan, 950 F.2d 765, 770 (D.C. 
Cir. 1991).

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

    However, final paragraph (d)(3) differs somewhat from the proposed 
rule in that we added paragraphs (d)(3)(i) and (ii) and placed most of 
proposed paragraph (d)(3) in paragraph (d)(3)(iii). Under the final 
rule, reassertion of jurisdiction is required only if all three factual 
situations identified in paragraphs (d)(3)(i) through (iii) exist. 
Paragraph (d)(3)(i) specifies that the conditions that develop after 
termination of jurisdiction must constitute a violation of the 
reclamation requirements of the applicable regulatory program. 
Paragraph (d)(3)(ii) specifies that the conditions that develop after 
termination of jurisdiction must be the result of surface coal mining 
operations for which jurisdiction was terminated. The addition of 
paragraphs (d)(3)(i) and (ii) is consistent with the preamble to the 
1988 rules, which provides that ``it would not be appropriate for the 
regulatory authority to reassert jurisdiction under the approved 
program'' if ``the problem was not caused by the permittee's violation 
of the regulatory program.'' \101\
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    \101\ 53 FR 44356, 44359 (Nov. 2, 1988).
---------------------------------------------------------------------------

    Several commenters asserted that paragraph (d)(3) would require 
reassertion of jurisdiction on sites where third-party disturbances 
created the conditions resulting in the need for reassertion of 
jurisdiction. The rule does not require reassertion of jurisdiction 
when the impact is a result of a third-party disturbance. Instead, the 
rule applies only to impacts resulting from the mining operation. We 
have added language at paragraph (d)(3)(ii) that clarifies this point.
    One commenter opposed the rule because it provides no discretion to 
the regulatory authority in deciding whether to reassert jurisdiction 
and does not provide an endpoint for reassertion of jurisdiction. The 
final rule that we are adopting today, like the proposed rule and the 
1988 rule, does not provide discretion to the regulatory authority or 
an endpoint (equivalent to a statute of limitations) because neither is 
appropriate if bond release and termination of jurisdiction were based 
upon fraud, collusion, or misrepresentation of a material fact.
    One commenter alleged that adding ``intentional or unintentional'' 
as an adjective modifying ``material misrepresentation of a material 
fact'' would increase long-term liability and result in additional 
litigation by nongovernmental organizations, as would the provision 
requiring reassertion of jurisdiction for postmining discharges 
requiring treatment. Neither of the added provisions represents a 
substantive change in policy or regulation. Therefore, we find no basis 
for the commenter's allegation. Another commenter opposed adding 
``intentional or unintentional'' as a modifier for

[[Page 93093]]

``misrepresentation of a material fact,'' alleging that it was 
unnecessary. This phrase is helpful to clarify circumstances to which 
it can be applied and better informs the reader of how the rule is to 
be interpreted and applied. No changes have been made as in response to 
these comments.
    Several commenters alleged that adoption of the provisions 
discussed in the preceding paragraph would mean that a permittee would 
never have the certainty that it has fulfilled all obligations for a 
permitted site. According to the commenters, this result would infringe 
upon the permittee's ability to conduct business and could adversely 
impact the availability of surety bonds. As discussed in the preceding 
paragraph, neither of the added provisions represents a substantive 
change in policy or regulation. Therefore, we have no reason to 
anticipate that the outcome feared by the commenter will develop. Even 
if it did, that outcome would not justify allowing a termination of 
jurisdiction based on fraud, collusion, or misrepresentation of a 
material fact to stand if the mining operation has resulted in a 
situation that constitutes a violation of SMCRA or the applicable 
regulatory program.
    One commenter opined that the rule would penalize successful 
operators because operators exiting the coal business would not be 
subject to this rule. Both the 1988 rule and this final rule apply to 
the permittee in existence at the time of termination of jurisdiction. 
If reassertion of jurisdiction is necessary, the regulatory authority 
must require that the permittee implement corrective measures 
regardless of whether the permittee has exited the coal business.
    Similarly, another commenter expressed concern that the regulatory 
authority might be held responsible if the permittee could not be 
located or was no longer a viable business entity. Nothing in the 
proposed or final rules would support this outcome.
    One commenter asserted that the proposed rule is unworkable because 
it is not clear how it will be enforced. The final rule will be 
implemented in the same manner as the 1988 rules. The preamble to the 
1988 rules provides the following explanation of how the regulatory 
authority may become aware of a situation involving fraud, collusion, 
or the intentional or unintentional misrepresentation of a material 
fact:

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

    \102\ 53 FR 44356, 44358 (Nov. 2, 1988).

The regulatory authority inquiry to which this paragraph refers may be 
the result of information supplied by the public, information gleaned 
from the news media, or observations by regulatory authority personnel 
in the course of inspecting nearby mine sites.
    One commenter asked whether the permittee or the regulatory 
authority would be required to conduct water sampling on sites for 
which bond has been fully released. The answer is no. There is no 
authority under SMCRA to impose such a requirement. In addition, it 
would defeat one of the purposes of termination of jurisdiction; i.e., 
to determine when monitoring and inspection under SMCRA are no longer 
necessary.
    One commenter implied that the rule should specify that the need 
for reassertion of jurisdiction will be determined using only the bond 
release standards in effect at the time of termination of jurisdiction. 
We find that no such provision is necessary because the rule already 
provides that reassertion of jurisdiction is required only if the 
regulatory authority becomes aware that the bond release was based upon 
fraud, collusion, or the intentional or unintentional misrepresentation 
of a material fact. This sentence refers to decisions in which the 
regulatory authority released bond fully but would not have done so if 
the information provided by the permittee had not been tainted by the 
fraud, collusion, or misrepresentation of a material fact at that time. 
Paragraph (d)(3) neither mentions nor provides a basis for reasserting 
jurisdiction whenever the regulatory authority adopts revised bond 
release criteria. Unless otherwise specified in the rulemaking adopting 
those criteria, the revised criteria would apply only prospectively. In 
any event, they could not be used to reassert jurisdiction over permits 
with bond released before the effective date of the revised criteria 
because the adoption of revised bond release criteria would not be 
considered fraud, collusion, or misrepresentation of a material fact.
    Several commenters opposed paragraph (d)(3) because, in their view, 
it would require reassertion of jurisdiction for any error or mistake 
in a document submitted as part of the bond release process, no matter 
how minor the error or mistake. We disagree. Both the 1988 rule and 
final paragraph (d)(3) require reassertion of jurisdiction only for 
fraud, collusion, or misrepresentation of a material fact. Clerical 
errors and other minor mistakes would not meet this threshold because 
they would not be considered misrepresentation of a material fact. The 
adjective ``material'' means the fact must be critical to the decision 
to release bond. In other words, misrepresentation of a material fact 
refers to a situation in which, in the absence of the 
misrepresentation, the regulatory authority would not have released the 
bond. However, in response to these and other comments, we have added 
paragraphs (d)(3)(i) and (ii) to specify that reassertion of 
jurisdiction is required only when conditions exist that would 
constitute a violation of the reclamation requirements of the 
applicable regulatory program and those conditions are the result of 
surface coal mining operations for which jurisdiction was terminated. 
This limitation is consistent with the preamble to the 1988 rules, 
which provides that ``it would not be appropriate for the regulatory 
authority to reassert jurisdiction under the approved program'' if 
``the problem was not caused by the permittee's violation of the 
regulatory program.'' \103\
---------------------------------------------------------------------------

    \103\ Id. at 44359.
---------------------------------------------------------------------------

    Two commenters asserted that the rule is unnecessary because some 
states have a fund to address post-bond release problems. We find that 
this comment is not germane because, in 1988, we determined that there 
was a need for a rule providing for both termination of jurisdiction 
and reassertion of jurisdiction. The proposed rule did not propose to 
alter that determination nor did we request comment on that 
possibility.
    One commenter suggested that, in lieu of adopting this rule, we 
establish a fund similar to the Abandoned Mine Reclamation Fund that 
would cover problems that arise after termination of jurisdiction. We 
have no authority to establish such a fund or assess the fees that 
would be required to operate it.
    One commenter took issue with the statement in the preamble to the 
proposed rule at 80 FR 44436, 44467 that the intentional or 
unintentional misrepresentation of a material fact includes the 
``subsequent discovery of a discharge requiring treatment.'' The 
commenter noted that this language differs slightly from the proposed 
text of the regulation, which did not use the term ``subsequent''. 
According to the commenter, reassertion of jurisdiction for a discharge 
that was undiscoverable at the time of the application for bond release 
would be inconsistent with

[[Page 93094]]

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

    \104\ 30 U.S.C. 1269(c)(3).
---------------------------------------------------------------------------

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

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

    \105\ 53 FR 44356, 44361 (Nov. 2, 1988).

    There is a distinct difference between the situation described in 
the 1988 preamble and the sentence that we proposed to add to our rules 
and that we are adopting in revised form as part of this final rule. 
The sentence in our proposed and final rules applies to a discharge for 
which a treatment need has already been established, while the seep 
cited in the 1988 preamble is a newly discovered seep for which there 
has been no determination whether the seep is a discharge that will 
require treatment or whether it is the result of the surface coal 
mining operations for which jurisdiction was terminated. As noted in 
the preamble, these factual questions need to be answered before a 
determination can be made on reassertion of jurisdiction. Although not 
expressly stated in the preamble, we would anticipate that reassertion 
of jurisdiction would be required under the 1988 rule if the questions 
are answered in the affirmative. Therefore, we find no inconsistency 
between the 1988 preamble and our final rule. For added clarity, as 
discussed below, we have revised the pertinent sentence in the proposed 
rule by adding a proviso that reassertion of jurisdiction is required 
only if the conditions creating the need for treatment of the discharge 
are the result of the mining operation.
    In final paragraph (d)(3)(iii), we removed the phrase ``if it is 
demonstrated that'' found in (d)(3) in the proposed rule. The language 
in the proposed rule is somewhat confusing because it did not address 
what a demonstration must include or who must make the demonstration. 
The preamble to the proposed rule describes proposed paragraph (d)(3) 
as meaning that ``the regulatory authority must reassert jurisdiction 
if the termination was based upon fraud, collusion, or 
misrepresentation of a material fact.'' \106\ The language of the final 
paragraph (d)(3)(iii) more effectively conveys this meaning. In 
addition, it is consistent with the preamble to the 1988 rule, which 
states that the regulatory authority would have to reassert 
jurisdiction ``[i]f following final bond release, any reasonable person 
could determine that the bond release was based upon fraud, collusion, 
or a misrepresentation of a material fact at the time of release. . . 
.'' \107\
---------------------------------------------------------------------------

    \106\ 80 FR 44436, 44467 (Jul. 27, 2015).
    \107\ 53 FR 44356, 44359 (Nov. 2, 1988).
---------------------------------------------------------------------------

    In paragraph (d)(3)(iii), we also revised the language in proposed 
paragraph (d)(3) pertaining to the discovery of discharges requiring 
treatment by deleting the reference to mining-related parameters of 
concern and by adding a proviso that the conditions creating the need 
for treatment must be the result of the mining operation. The revised 
language focuses simply on whether the discharge requires treatment and 
whether the need for treatment is a result of the mining operation. 
There is no need for use of the new term ``parameters of concern'' in 
this context.
Coal Exploration
    We received a few comments in response to our statement in the 
preamble to the proposed rule that we intended to correct an oversight 
in the 1988 final rule text by applying the termination of jurisdiction 
provisions to coal exploration and surface coal mining and reclamation 
operations, not just surface coal mining and reclamation operations. 
The comments that we did receive generally opposed this extension. One 
commenter alleged that including coal exploration in the termination of 
jurisdiction rules would impose an undue burden on operators and 
regulatory authorities and would discourage future exploration. Another 
commenter noted that SMCRA provides only minimal requirements for coal 
exploration and that it neither mandates inspections nor notification 
of citizens or opportunity for citizens to comment upon or appeal 
critical regulatory decisions on coal exploration. According to the 
commenter, the issue of when SMCRA jurisdiction terminates in the 
context of coal exploration rarely arises. The commenter suggested that 
it might be appropriate to leave this issue to the discretion of 
individual regulatory programs.
    After evaluating the comments, we have decided not to proceed with 
our proposal to revise Sec.  700.11(d) to apply to coal exploration. 
Our regulations at Part 772 do not require a permit or regulatory 
authority approval for coal exploration unless the exploration involves 
the removal of more than 250 tons of coal or will take place on lands 
designated as unsuitable for surface coal mining operations. Therefore, 
there are no permit boundaries or defined endpoints. In the absence of 
a permit, there is no bond, so bond release cannot be used as a 
determinant for termination of jurisdiction. As one commenter 
suggested, we will rely upon the discretion of each regulatory 
authority to determine when termination of jurisdiction is appropriate 
for coal exploration.

B. Part 701--Permanent Regulatory Program

Section 701.5: Definitions
Acid Drainage or Acid Mine Drainage
    A commenter asserted that normal rainfall can have a pH of less 
than 6.0 as a result of the presence of carbon dioxide in the 
atmosphere. In addition, the commenter claimed that, historically, some 
of the lowest pH in rainfall occurs over the Appalachian Region, where, 
in 2012, pH reported in proximity to the intersection of West Virginia, 
Pennsylvania, and Ohio, was approximately 4.5 based on National Trends 
Network trend maps between 1986 and 2012. The commenter also opined 
that assigning a pH level of less than 6.0 was arbitrary and could 
result in a situation where acid rainfall in some regions could cause 
an operator to be in violation of the rule. We reject the

[[Page 93095]]

commenter's arguments for a number of reasons. First, we did not 
arbitrarily select the pH value used in our definition of acid drainage 
or acid mine drainage, and it is not a new specification in this rule. 
The definition for acid drainage was codified in our regulation in 
March, 1979. In the preamble to that regulation, we explained that we 
selected a pH of less than 6.0 for the definition because the U.S. 
Environmental Protection Agency set that level as the minimum for its 
effluent limitations and because pH values outside the range of 6.0-8.5 
in natural waters are indicative of stress.\108\ Second, our definition 
contains another condition that must be met before we consider water 
draining from a mining area with a pH of less than 6.0 to be acid 
drainage or acid mine drainage: total acidity must exceed total 
alkalinity. Sometimes a stream under natural conditions can have pH 
values of less than 6.0, but its acidity will not exceed its 
alkalinity. In addition, an applicant reports baseline data, including 
pH level, for both groundwater and surface water as part of the permit 
application required by final rule Sec.  780.19. This baseline data 
provides site specific information to the regulatory authority so that 
rainfall impacts or other existing conditions affecting the pH of water 
at the site are known prior to mining. Thus, we decline to make changes 
to the definition based on this comment and are adopting the proposed 
rule definition without modification.
---------------------------------------------------------------------------

    \108\ 44 FR 14919 (Mar 13, 1979).
---------------------------------------------------------------------------

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

    \109\ 80 FR 44436, 44467-44468 (Jul. 27, 2015).
---------------------------------------------------------------------------

    First, we proposed to revise the basic definition of ``adjacent 
area'' to encompass the area outside the proposed or actual permit area 
when there is a reasonable ``possibility'' of adverse impacts from 
surface coal mining operations or underground mining activities, as 
determined by the regulatory authority. This portion of the proposed 
definition was substantively identical to the existing definition 
except that the existing definition included only the area in which 
impacts are reasonably ``probable'' rather than the area in which 
impacts are reasonably possible. Several commenters objected to the 
proposed change as overly expansive. After evaluating those comments, 
we have decided not to make the proposed change. We agree that 
collection of baseline data from the area in which impacts are 
reasonably probable will provide sufficient basis for evaluation of the 
permit application and design of the proposed operation. Similarly, we 
agree with the commenters that limiting monitoring outside the permit 
area to the area in which impacts are reasonably probable will provide 
sufficient data to detect and evaluate the impacts of mining and 
reclamation in a timely manner. Expanding baseline data collection and 
monitoring to areas in which impacts are reasonably possible, but not 
reasonably probable, would increase cost with little benefit.
    As we explained in the preamble to the proposed rule, the 
definition of ``adjacent area'' depends on the nature of the resource 
and the context in which the regulations use the term.\110\ In response 
to a comment from another federal agency, we modified final paragraph 
(1) to clarify that, in the context of the Endangered Species Act, 
``adjacent area'' includes areas outside of the proposed or actual 
permit area where surface coal mining operations or underground mining 
activities may affect a species listed or proposed for listing as 
endangered or threatened, or having designated or proposed critical 
habitat under the Endangered Species Act. This modification, found at 
final rule paragraph (1)(ii), is to ensure protection is extended to 
proposed or listed species under the Endangered Species Act, as well as 
proposed or designated critical habitats listed under the Endangered 
Species Act that may be impacted by the proposed mining activity. Any 
impact to a proposed or listed species or proposed or designated 
critical habitat, whether adverse or beneficial, should be included 
within the definition of adjacent area.
---------------------------------------------------------------------------

    \110\ 80 FR 44436, 44467 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

    \111\ D.Y. Dixon and H.W. Rauch, The Impact of Three Longwall 
Coal Mines on Streamflow in the Appalachian Coalfield, In the 
Proceedings of the 9th International Conference on Ground Control in 
Mining, Morgantown, W.V.,169-182 (1990).
---------------------------------------------------------------------------

    We also received several comments on this proposed definition that 
we are not adopting. A couple of commenters expressed concern regarding 
the potential inability to access the ``adjacent area'' because of a 
lack of landowner consent. We acknowledge that lack of landowner 
consent may restrict data collection. However, the regulatory authority 
needs sufficient data about the adjacent area to properly evaluate the 
permit application and

[[Page 93096]]

prepare the cumulative hydrologic impact assessment. If one landowner 
refuses access, one solution could be to expand the initial ``adjacent 
area'' to include land further away for which access can be obtained. 
We encourage permit applicants to work with the regulatory authority to 
determine an appropriately-sized ``adjacent area'' with sufficient 
sampling points to satisfy all planning and regulatory needs.
    Additionally, several commenters opined that the proposed 
definition of ``adjacent area'' would result in an expanded permit area 
to secure access and result in increased costs. In some cases the 
permit area may coincide with the extent of probable impacts; however, 
that is the exception. Most of the time the permit area is smaller than 
the ``adjacent area''; therefore, we do not believe this definition 
will impact the size of the permit area.
    One commenter proposed adoption of the adjacent area definition 
used by the Wyoming Department of Land Quality. That definition 
provides that ``[a]djacent area means land located outside the permit 
area upon which air, surface water, groundwater, fish, wildlife, or 
other resources protected by the Act may reasonably be expected to be 
adversely impacted by mining or reclamation operations. Unless 
otherwise specified by the Administrator, this area shall be 
presumptively limited to lands within (one-half mile) of the proposed 
permit area.'' This suggestion was not accepted because of the one-
size-fits-all minimum application of ``one-half mile.'' We have no 
indication that this size limitation would ensure the inclusion of all 
areas where there is the reasonable probability of adverse impacts.
    One commenter alleged that the proposed rule inappropriately 
assumes that adjacent waters are inextricably linked to, what the 
commenter referred to as, ``the core/jurisdictional waters.'' This 
commenter explains that adjacent waters may have little, if any, 
biological connection to ``the core/jurisdictional waters;'' they may 
contain two distinct, functionally independent communities that may 
only interact slightly. We disagree that the rule assumes a biological 
connection between two adjacent water bodies. The rule at section 
780.19 requires the operator to collect geologic, hydrologic, and 
biologic data in the permit area and adjacent area. To the extent that 
distinct, functionally independent communities exist in adjacent areas, 
the baseline data collection will document that fact. This information 
will then assist the operator and the regulatory authority to better 
understand the potential cumulative impact on the hydrologic and 
biologic environment in the permit and adjacent areas from the proposed 
operation.
    Paragraph (c) \112\ of the proposed definition established what the 
term ``adjacent area'' means with respect to underground mine pools. 
Two commenters questioned the need for including paragraph (c) within 
the definition of adjacent area. One of the two commenters asserted 
that the requirements in the existing paragraph (c) are adequately 
addressed and there is no need for revision and the other commenter 
asserted that the requirements are sufficiently discussed in paragraph 
(a), now final paragraph (1). Final paragraph (c), now final paragraph 
(3), is retained because it highlights the importance of ensuring that 
areas that might be affected physically or hydrologically by the 
dewatering of a mine pool or areas that may develop mine pools will be 
included in the adjacent area because of the long-term cost associated 
with remediation and treatment of discharges that could continue in 
perpetuity. Inclusion of these areas ensures that sufficient 
groundwater data will be collected to assist the regulatory authority 
to determine what, if any, impacts the mine operation will have on 
areas that mine pools could adversely impact.
---------------------------------------------------------------------------

    \112\ 80 FR 44436, 44467-68 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In conjunction with the comments listed above, both commenters 
recommended, that if proposed paragraph (c), now final paragraph (3), 
is retained, that we replace the words ``might be affected'' in the 
final rule language. One commenter suggested replacing the words 
``might be affected'' with ``may realize physical or hydrological 
adverse impacts.'' This phrase does not afford the regulatory authority 
sufficient flexibility in making determinations about areas that may be 
affected by dewatering. The other commenter suggested we replace 
``might be affected'' with ``could reasonably be significantly 
affected, based on the professional judgment of a professional 
hydrologist within the regulatory authority.'' This phrase is too vague 
and subjective, particularly since the commenter does not explain what 
the term ``reasonably be significantly affected'' means. Therefore, we 
are retaining the words ``might be affected'' in the final rule text 
within final paragraph (3) and adopting paragraph (c), as proposed, 
with the exception of renumbering it as final paragraph (3).
    In the preamble to the proposed rule, we invited comment on whether 
the definition of ``adjacent area'' should prescribe the Hydrologic 
Unit Code (HUC) 12 watershed or a more appropriate minimum watershed 
size for the adjacent area for surface water resources. Several 
commenters supported inclusion of at least the next higher order 
drainage area for baseline surface water characterization where 
dewatering of streams by longwall or other high-extraction mining may 
occur as a mechanism to define adjacent area. In contrast, another 
commenter strongly opposed an approach of using the next higher order 
drainage area to determine ``adjacent area''. That commenter stated 
that using the definition of ``adjacent area'' as the drainage area of 
the operation and at least the next higher order drainage area could 
result in several thousand acres and associated stream lengths being 
added to the stream mapping and monitoring requirements. We agree with 
this commenter and have not changed the definition for two reasons. 
Changing the definition to include a specific watershed would create 
fixed boundaries for the ``adjacent area'' and may not be adequate to 
capture all areas with probable impacts on resources. In addition, the 
fixed area may be larger than necessary, which may result in collection 
of data with little or no value for evaluation of the impacts of mining 
and reclamation.
Angle of Dewatering
    In response to numerous comments, we are adding the definition of 
``angle of dewatering'' to the final rule. As we discussed in the 
definition of ``adjacent area'' we are defining the term ``angle of 
dewatering'' to mean, ``the angle created from a vertical line drawn 
from the outer edge or boundary of high-extraction underground mining 
workings and an oblique line drawn from the terminus of the vertical 
line at the mine floor to the farthest expected extent that the mining 
will cause dewatering of groundwater or surface water.'' This 
definition,\113\ or similar variations, has been in use for many years, 
and is commonly used in defining the potential impact area for stream 
dewatering and other adverse impacts to surface water and groundwater 
as a result of underground mining. As the commenters recognized, the 
actual zone of hydrologic impacts to surface water and groundwater 
caused by subsidence induced dewatering will be highly site specific; 
depending of lithology, depth of coal seam, aquifer characteristics, 
and

[[Page 93097]]

the extent to which groundwater contributes to surface flow of streams. 
Due to the variability of these impacts and the site specific nature of 
the data needed to accurately determine the angle of dewatering it is 
not possible to define one all-inclusive ``angle'' of dewatering. 
Therefore, we are identifying impacts to be expected within the ``angle 
of dewatering''. The permittee will be responsible for performing the 
necessary onsite investigation to estimate the ``angle of dewatering'', 
and to define the potentially affected surface area and groundwater 
resources.
---------------------------------------------------------------------------

    \113\ Dixon, supra at 169-182.
---------------------------------------------------------------------------

Approximate Original Contour
    We proposed to revise the definition of ``approximate original 
contour'' to clarify that the term refers to the general land 
configuration within the permit area as it existed before any mining 
and not to a configuration immediately prior to the current mining. As 
the preamble explained,\114\ this approach is consistent with section 
515(b)(2) of SMCRA,\115\ which requires that surface coal mining and 
reclamation operations be conducted so as to ``restore the land 
affected to a condition capable of supporting the uses which it was 
capable of supporting prior to any mining . . . .''. As the preamble 
also explained,\116\ the U.S. District Court for the District of 
Columbia held that the word ``any'' used in this SMCRA section 
``indicates that Congress intended the operator to restore the land to 
the condition that existed before it was ever mined.'' \117\
---------------------------------------------------------------------------

    \114\ 80 FR 44436, 44468 (Jul. 27, 2015).
    \115\ 30 U.S.C. 1265(b)(2).
    \116\ Id.
    \117\ In re Permanent Surface Mining Regulation Litigation. I, 
Round I (PSMRL I, Round I), 1980 U.S. Dist. LEXIS 17722 at *95 
(D.D.C. 1980).
---------------------------------------------------------------------------

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

    \118\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

    Other commenters stated that it was not appropriate to require 
current mining operations to repair the damage caused by pre-law mine 
operations. Another commenter asked us to clarify when the new 
definition might be applied on previously mined areas permitted before 
or after the effective date of the new rule, as it could have major 
impact on staff resources to re-review previously approved plans. As 
mentioned above, the clarification that pre-SMCRA abandoned mine land 
features may not provide the basis for approximate original contour is 
not a new requirement. Therefore, all SMCRA permits should already 
contain reclamation plans that ensure that the land will be reclaimed 
to the general surface configuration of the land prior to mining, 
regardless of this rulemaking. Furthermore, as discussed below, it is 
common practice for remining operations to repair the damage caused by 
pre-law mine operations. While SMCRA does not limit operations to only 
remining operations, and does not require operators to reclaim 
abandoned mine land features outside of a permit disturbance boundary, 
any previously mined areas that are re-disturbed during the course of 
remining must be reclaimed according to all of the requirements of 
SMCRA. No changes were made as a result of these comments.
    Other commenters not only objected to the addition of the word 
``any'' before the word ``mining'' in the definition of approximate 
original contour at Sec.  701.5, the commenters questioned our legal 
authority to make this modification to our regulations. These 
commenters contend that requiring operations to ensure that the 
reclaimed area closely resembles the general surface configuration 
prior to any mining, instead of the general surface configuration just 
prior to permit issuance, would impose an unachievable standard. 
However, the requirement that operations ensure that the reclaimed area 
closely resemble the general surface configuration prior to any mining 
is not a new requirement. In fact, SMCRA's legislative history shows 
that, except in limited circumstances, it was commonly understood that 
previously mined areas could and should be remined and reclaimed to 
achieve original contours. When testifying about Pennsylvania's surface 
coal mining law, the basis for SMCRA, Pennsylvania's Governor Milton J. 
Shapp testified that:

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

    H.R. 2 Hearing Part II at 46. The addition of the word ``any'' is 
merely a clarification. Furthermore, commenters did not provide an 
explanation or an example to illustrate why this requirement is 
unachievable.
    In support of their contention that we lack the legal authority to 
insert the word ``any'' into the definition of approximate original 
contour, commenters made three main arguments. First, commenters rely 
on two recent decisions from the Departmental Cases Hearings Division 
in the Department's Office of Hearings and Appeals, in which an 
administrative law judge allowed a mining company to model postmining 
surface configurations on pre-SMCRA abandoned mine land features. 
However, decisions of administrative law judges are not Departmental 
precedents and are not binding on the Interior Board of Land Appeals, 
other administrative law judges, the Office of Surface Mining, or 
Article III Courts. West Cow Creek Permittees v. BLM, 142 IBLA 224, 235 
n.16 (1998). In fact, administrative decisions of this type are only 
binding on the parties if the decision is not appealed or if the 
decision is upheld upon appeal to the Interior Board of Land Appeal. In 
this case, both decisions have been appealed to the Interior Board of 
Land Appeals

[[Page 93098]]

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

    \119\ 30 U.S.C. 1291(a)(2).
    \120\ 30 U.S.C. 1265(b)(2) and (b)(3).
---------------------------------------------------------------------------

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

    \121\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    One commenter expressed concern that the proposed changes could be 
interpreted to alter the core elements of approximate original contour. 
While this comment did not request a change to the definition, we can 
confirm that the changes do not alter the requirement that the 
reclaimed area must closely resemble the general surface configuration 
prior to any mining, must blend into and complement the drainage 
pattern of the surrounding terrains, and must contain no highwalls or 
spoil piles. These requirements apply, regardless of the presence or 
absence of abandoned mine land features, unless a separate exception 
applies.
    Another commenter expressed concern that returning land to its 
approximate original contour would limit certain types of postmining 
land uses. Commenters did not provide any examples of situations where 
removal of pre-SMCRA abandoned mine land features would preclude any 
postmining land uses. We do not share the concern expressed by this 
commenter. In our experience, ensuring the elimination of pre-SMCRA 
abandoned mine land features only enhances the land's capability to 
support a wider variety of postmining land uses. Therefore, we do not 
believe that there is any need to make changes to the definition of 
approximate original contour based on these comments.
    Several commenters stated that approximate original contour 
conditions before any mining might be difficult to determine because 
some sites may have been mined before the publication of United States 
Geological Survey quadrangle maps or were mined centuries ago. We do 
not believe that the lack of detailed USGS topographic maps or other 
information for very old pre-SMCRA mined areas should inhibit the 
ability to comply with this requirement. Considering the remining of 
previously mined sites requires an approximate restoration and not an 
exact restoration of contours, before any mining, general knowledge of 
the natural topography typical of the local area should be sufficient. 
We made no changes as a result of this comment.
    Similarly, one commenter expressed concern that the changes in the 
language of the definition somehow altered the standard for requiring 
the restoration of land configuration from ``approximate'' to ``exact'' 
original contours. It is not our intent to require reclamation to 
achieve the ``exact'' original contour. The final rule reflects that 
changes in the surface configuration after mining compared to the 
land's configuration before any mining are allowed as long as the 
premining configuration closely resembles the post-mine configuration. 
Another commenter requested that we explain the meaning of the term 
``approximate'' or ``closely resembles'' as it relates to the 
definition of approximate original contour. Such a discussion is not 
necessary as the use of these terms within the definition have not been 
proposed for change and maintain the same meaning as they had before 
this revised definition.
    Some commenters expressed concern that the revised definition 
implies that soil resources from previously mined areas must be 
restored, and argued that soil resources at many pre-law sites were not 
protected and it would be unreasonable to impose such a requirement to 
fully reclaim them. We disagree that the revised definition of 
approximate original contour implies, or could reasonably require, 
permittees and mine operators to recreate soil resources that have been 
permanently lost. We fully recognize that previously mined areas 
commonly have significant limitations. At the same time, these 
limitations should not be used as an excuse to not make improvements, 
such as elimination of highwalls and spoil piles, and remediation of 
hazardous and environmentally degraded conditions. We also reject the 
comment that grading

[[Page 93099]]

of remined spoil piles to meet approximate original contour is 
technically and economically impossible. Most on-going remining 
operations currently comply with the requirement of Sec.  816.102 and 
are already achieving approximate original contour. Where they have 
insufficient spoil to fully reclaim the highwall, Sec.  816.106 
provides an alternative option for reclamation. We therefore decline to 
make changes in this definition based on these comments.
    Others commented that the changes to the approximate original 
contour definition appear to focus mainly on problems in Appalachia, 
where remining, thick overburden, and mountaintop removal are 
prevalent. While we agree that these conditions may be prevalent in 
Appalachia, sites with previously mined areas exist throughout the coal 
regions. For example, we noted problems with achieving approximate 
original contour in Oklahoma in a 2010 National Priority Review of 
approximate original contour. The clarifications provided in this final 
rule are applicable nationwide and will ensure that, unless an 
operation qualifies for an exemption from the requirement to achieve 
approximate original contour, such as the exemption for previously 
mined areas with insufficient spoil to completely reclaim the highwall 
under Sec.  816.106, the reclamation will be based on contours present 
prior to any mining.
    Several commenters advocated expanding the definition of 
approximate original contour to include the restoration of topography 
damaged by surface subsidence from underground mining, specifically 
longwall mining. Other commenters expressed opposition to the inclusion 
of such language and instead urged that subsidence from underground 
mining be specifically excluded from the definition of approximate 
original contour. After consideration of both positions, we have 
determined that these changes are not necessary because approximate 
original contour is not applicable to surface subsidence for 
underground mining. Pursuant to section 701(2) of SMCRA, the 
requirement to achieve approximate original contour is applicable to 
``reclaimed areas, including any terracing or access roads,'' that are 
subject to ``backfilling and grading of the mined area.'' \122\ As the 
area above underground mine works are not part of the mined area that 
are backfilled and graded, they are not subject to requirements of 
approximate original contour. Therefore, expanding the definition of 
approximate original contour to include the restoration of topography 
caused by settlement due to underground mine subsidence would be 
inappropriate. Furthermore, following the same logic, explicitly 
excluding underground mining subsidence impacts is unnecessary because 
approximate original contour already does not apply to these impacts.
---------------------------------------------------------------------------

    \122\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

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

    \123\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

    Commenters alleged that our proposed change does not adequately 
consider the effects of swell or bulking factors on grading and that an 
unintended consequence of our proposed change might be the construction 
of more excess spoil fills. While the commenters did not clearly 
explain why they believed that changes to the approximate original 
contour definition would have this result, other commenters mistakenly 
believed that our changes were intended to require the sites to be 
returned to the ``exact'' premining contours, which would limit the 
amount of spoil that could be returned to the mined out area and 
increase the need for excess spoil fills. However, as we explained 
above, our rule change does not require a return to the exact premining 
contours and therefore we do not anticipate an increased demand for 
excess spoil fills. Therefore, we have not made any change to this 
definition in response to these commenters.
    One commenter asserted that the proposed definition deletes the 
reference in the statutory definition to permanent water impoundments. 
That is not the case. The final definition, like the proposed 
definition, provides that the requirement to eliminate all highwalls 
and spoil piles does not prohibit ``the approval of permanent water 
impoundments that comply with Sec. Sec.  816.49, 816.55, and 780.24(b) 
or Sec. Sec.  817.49, 817.55, and 784.24(b) of this chapter.'' That 
provision is substantively identical to the previous definition in 
Sec.  701.5.
    Other commenters stated they were unclear as to whether the rule 
would allow the creation and approval of the type of impoundments 
frequently referred to as final-cut impoundments or final-cut lakes. 
Some of these commenters pointed out that impoundments can serve as an 
aquatic resource for fish and wildlife habitat and are often requested 
by landowners. We agree that permanent water impoundments, including 
properly constructed final-cut lakes, can provide valuable fish and 
wildlife habitat, recreational facilities, or water resource features. 
For that reason, our definition of ``land use'' in section 701.5 
includes ``developed water resources'' as a specific land use category. 
As previously noted, the final definition of

[[Page 93100]]

``approximate original contour'' specifically allows permanent water 
impoundments that comply with Sec. Sec.  816.49, 816.55, and 780.24(b) 
or Sec.  817.49, 817.55, and 784.24(b). Sections 816.49(b) and 
817.49(b) of our rules establish criteria for the approval of permanent 
impoundments, including final-cut impoundments. Paragraphs (b)(7) and 
(8) of those rules are particularly pertinent to final-cut 
impoundments. They require a demonstration that approval of the 
impoundment would not result in retention of spoil piles or ridges that 
are inconsistent with the definition of approximate original contour or 
the creation of an excess spoil fill elsewhere within the permit area.
    A commenter approved of the clarification in the proposed rule 
\124\ that coal refuse piles should be evaluated separately from the 
analysis of approximate original contour. As the commenter noted, 
requirements for the construction of permanent coal mine refuse piles 
are addressed separately from approximate original contour at 
515(b)(11) and 516(b)(4) of SMCRA.\125\ The regulations for coal waste 
are available at Sec. Sec.  816.81, 816.83, 816.84, 816.87, 817.81, 
817.83, 817.84, and 817.87. However, if coal refuse material is placed 
in the mined out area, the mined out area must still be returned to 
approximate original contour unless the regulatory authority has 
approved a coal refuse disposal area in that location. We have not made 
any changes to the proposed rule in response to this comment.
---------------------------------------------------------------------------

    \124\ 80 FR 44436, 44468 (Jul. 27, 2015).
    \125\ 30 U.S.C. 1265(b)(11) and 1266(b)(4).
---------------------------------------------------------------------------

Backfill
    We received no comments on this proposed definition, which we are 
adopting as proposed.
Bankfull Stage
    We proposed to define ``Bankfull'' as the ``water level, or stage, 
at which a stream, river, or lake is at the top of its banks and any 
further rise would result in water moving into the flood plain.'' \126\ 
We explained in the preamble to the proposed rule that the proposed 
definition paralleled the definition in the National Weather Service 
glossary and clarified the technical and scientific term that we use 
``to more precisely fix the boundaries of stream buffer zones and 
riparian corridors in our proposed stream restoration requirements.'' 
\127\ As explained below, we modified this definition in response to 
comments.
---------------------------------------------------------------------------

    \126\ 80 FR 44436, 44587 (July 27, 2015).
    \127\ Id. at 44469.
---------------------------------------------------------------------------

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

    \128\ See, e.g., Dave Rosgen, Applied river morphology, Wildland 
Hydrology, Pagosa Springs, Colorado (1996); Cheryl Harrelson et al., 
Stream channel reference sites: an illustrated guide to field 
techniques. Gen Tech. Rep. RM-245, Fort Collins, Colorado (1994); 
U.S. Department of Agriculture, Forest Service, Rocky Mountain 
Forest and Range Experiment Station.; William A. Harmon, Finding 
Bankfull Stage in North Carolina Streams, Volume 590, Issue 3 of AG 
(Series) River course, North Carolina Cooperative Service Extension 
Service (2000).
---------------------------------------------------------------------------

    Another commenter alleged that the proposed definition of 
``bankfull'' is inconsistent with the definitions of leading experts 
such as Rosgen, the United States Geological Survey, and North Carolina 
University. The commenter argued that multiple other factors in the 
proposed rule--such as bankfull width, depth, and flood prone area--
rely on a properly assessed ``bankfull stage'' and that an incorrect 
definition would lead to inaccurate data, which in turn would lead to 
improperly designed projects. In place of the ``bankfull'' definition, 
the commenter argued for consistent and clear terminology, such as the 
definition relied on by leading experts, to ensure that appropriate and 
accurate data are collected. Additionally, the commenter argued that 
the definition and proposed rule increased confusion because the agency 
did not provide guidance for the calculation of flood prone areas or 
include references to methods such as hydrologic modeling, Federal 
Emergency Management Agency flood maps, a standard distance from top of 
banks, or Rosgen's 2X maximum bankfull depth method. Calculation of 
flood prone areas is not germane to the definition of ``bankfull 
stage''; however we would expect that standard engineering practices 
would be used to calculate the flood prone areas. Our rule uses 
``bankfull stage'' only for the purpose of determining the point from 
which the stream buffer zone must be measured and describing stream 
channel profiles. As we discuss above, we have revised the term from 
``bankfull'' to ``bankfull stage'' and have more consistently aligned 
our proposed definition to the definition relied on by leading experts.
    One commenter argued that a definition of ``bankfull'' is not 
necessary because most ephemeral streams do not have banks. We 
disagree. For the reasons explained later in this preamble, we modified 
the definition of ``ephemeral stream'' in the final rule to ``include[ 
] only those conveyances with channels that display both a bed-and-bank 
configuration and an ordinary high water mark, and that have streambeds 
located above the water table year-round.'' Thus, if a conveyance lacks 
a bank, we would not classify the conveyance as a stream. As such, a 
definition of ``bankfull stage'' remains necessary to establish the 
boundaries of the streamside vegetative corridor for all stream types.
    In the final rule, ``bankfull stage'' means the water level at 
which a stream, river, or lake begins to overflow its natural banks and 
enter the active floodplain or if the stream, river, or lake is 
entrenched, bankfull stage is identified as the highest scour line, 
bench, or top of the point bar. This term and definition applies to all 
streams, rivers, and lakes.
Biological Condition
    We proposed to define ``biological condition'' as a measure of the 
ecological health of a stream or segment of a stream as determined by 
the type, diversity, distribution, abundance, and physiological state 
of aquatic organisms and communities found in the stream or stream 
segment. Some commenters expressed support for the proposed definition. 
Some commenters questioned how this term differed from another new term 
that we proposed to define, ``ecological function''. In response, we 
revised the definition of ``biological condition'' by deleting the 
statement that biological condition is a measure of the ecological 
health of a stream or segment of a stream. The final

[[Page 93101]]

definition clarifies that biological condition refers to the 
characteristics of the biota found in surface water bodies, including 
streams.
    Several commenters requested we remove the term ``physiological 
state'' from the definition of biological condition because it refers 
to a condition that is difficult to measure and also implies that any 
change in this condition would prevent mining. We agree with this 
assessment. ``Physiological state'' may be unmeasurable and our 
concerns are effectively addressed by the rest of the definition of 
``biological condition'' when it refers to the type, diversity, 
distribution, and abundance of aquatic organisms and communities found 
in a stream, stream segment, or other waters. Therefore, we have 
deleted ``physiological state'' in the definition of ``biological 
condition'' within the final draft rule.
    One commenter expressed concern that the definition of ``biological 
condition'' coupled with the definition of ``parameters of concern'' 
would impose new and burdensome requirements. We disagree. We define 
``parameters of concern'' as those chemical or physical characteristics 
and properties of surface water or groundwater that could be altered by 
surface or underground coal mining activities, including discharges 
associated with those activities, in a manner that would adversely 
impact the quality of groundwater or surface water, including adverse 
impacts on aquatic life. The definition of ``parameters of concern'' 
clarifies that these parameters may be of import because of potential 
impacts on biological conditions. Neither the definition of 
``parameters of concern'' nor ``biological condition'' prescribe 
additional biological data collection beyond the requirements expressly 
defined elsewhere in the final rule.
    Some commenters noted that gathering data on ``biological 
condition'' of streams would increase permitting and monitoring costs 
on the part of the operator and the burden of the regulatory authority 
to review the resulting data. We agree with the commenters and have 
made several changes to these requirements in relationship to ephemeral 
and intermittent streams. These changes can be found within final rule 
Sec. Sec.  780.19(c)(6) and 784.19(c)(6), related to underground 
mining, formerly Sec. Sec.  780.19(e) and 784.19(e) of the proposed 
rule. These changes will reduce the cost and time commitment of the 
operator and regulatory authority. However, as further described in the 
preamble discussion of final rule Sec. Sec.  780.19(c)(6) and 
784.19(c)(6), below, some of this information is necessary to 
adequately determine the condition of the stream premining, during 
mining, and after mining because these inventories and assessments 
provide crucial information on the function of these streams.
    One commenter requested that we exclude ephemeral streams from the 
definition of ``biological condition'' because assessment of the 
biological condition of ephemeral streams is impractical and 
unreasonable due to inconsistent flows. We agree with the commenter's 
statement about the impracticality of assessing the biological 
condition of ephemeral streams. However, instead of revising the 
definition of biological condition, as explained above, we have revised 
our baseline data requirements. This revision to final Sec.  
780.19(c)(6)(vi), includes the elimination of the requirement that 
permit applications include baseline data on the biological condition 
of ephemeral streams.
    We also revised the definition of ``biological condition'' by 
adding the phrase ``found in surface water bodies, including streams'' 
because biological condition assessments are not inherently limited to 
streams. This change was made to better tailor the definition to the 
manner in which the term is explained and used in a final report from 
the U.S. Environmental Protection Agency Practitioners Guide \129\ 
stating, ``[a]s a practical matter, our rules use this term only in 
connection with perennial and intermittent streams, but there is no 
scientific basis for limiting the definition itself in that manner.''
---------------------------------------------------------------------------

    \129\ U.S. Envtl. Prot. Agency, A Practitioner's Guide to the 
Biological Condition Gradient: A Framework to Describe Incremental 
Change in Aquatic Ecosystems. EPA-842-R-16-001. U.S. Envtl. Prot. 
Agency, Washington, DC (2016).
---------------------------------------------------------------------------

Cumulative Impact Area
    We are adopting the definition of ``cumulative impact area'' as 
proposed with the following exceptions. We have altered the 
nomenclature of this definition by modifying the paragraphs to conform 
to the rest of the rule. Instead of using (a) through (c) to designate 
paragraphs, as we did in the proposed rule, we use (1) through (3) to 
designate paragraphs in the final rule.
    One commenter requested that, at a minimum, the eight or six digit 
hydrologic unit code be used to delineate the cumulative impact area to 
ensure the inclusion of all impacts from active, closed, and expired 
mines on downstream water quality. We are not modifying the final rule 
to accommodate this request. Regulatory authorities are required to 
assess the probable cumulative impacts of all anticipated mining in a 
given area, regardless of a specified hydrologic unit code (HUC), to 
assure the proposed operation has been designed to prevent material 
damage to the hydrologic balance outside the permit area. Therefore, 
the region that needs to be included in an area may be larger or 
smaller than a HUC 6 or 8.
    Numerous commenters asked us to consider deleting the requirement 
within the proposed rule of using a HUC-12 watershed size in 
delineating the ``cumulative impact area''. The commenters stressed 
that a HUC-12 watershed may be appropriate in some cases but would 
result in areas that are too broad or too restrictive in others. The 
commenters requested the proposed rule be revised to allow the 
regulatory authority flexibility in requiring a more suitably-sized 
watershed approach based on the permit area under consideration, 
existing and anticipated coal mining operations, and site and regional 
characteristics. We agree with the commenters and have revised the 
proposed definition to allow the use of a HUC-12 or a different-sized 
watershed deemed appropriate for purposes of preparation of the 
cumulative hydrologic impact assessment. This change will allow the 
regulatory authority to use a watershed size that is more appropriate 
to the area under evaluation.
    In addition to this change we altered the definition of 
``cumulative impact area'' within the final rule by renumbering the 
paragraphs and removing proposed paragraph (c)(6). Proposed paragraph 
(c)(6) specified that anticipated underground mining includes all areas 
of contiguous coal reserves adjacent to an existing or proposed 
underground mine that are owned or controlled by the applicant. This 
proposal was included because, barring significant changes in economic 
or regulatory conditions, the mine would reasonably be expected to 
extend into those reserves in the future. We received numerous comments 
requesting that we not adopt the proposed requirement that the 
cumulative impact area include all areas of contiguous coal reserves 
adjacent to an existing or proposed underground mine when the applicant 
owns or controls those reserves. Commenters stated that the requirement 
was too broad and unworkable and could result in an increased burden on 
industry and the regulatory authority. Commenters also stated that the 
information related

[[Page 93102]]

to coal reserves may be proprietary, and that the cumulative impact 
area should be defined based on potential impacts from approved 
operations and operations that are in some stage of the permit 
application process instead of resource control or ownership. For the 
reasons presented by the commenters, we agree that the inclusion of all 
continuous coal reserves adjacent to an existing or proposed 
underground mine in proposed paragraph (c)(6) is too speculative. 
Therefore, we have removed it from the final definition.
    When neither baseline data nor analyses have been supplied by the 
applicant or permittee, a commenter claimed that it may not be 
technically feasible to assess the impacts of anticipated mining upon 
water resources during mining and reclamation and after final bond 
release. We agree that evaluation of potential impacts from areas of 
existing or anticipated mining on surface water and groundwater 
resources are not technically feasible in the absence of baseline or 
other data. This rule sets forth requirements for the collection and 
analysis of premining data about the site of the proposed mining 
operation and adjacent areas adequate to establish a comprehensive 
baseline that will facilitate evaluation of the effects of the proposed 
operation. If sufficient data is not available on areas of anticipated 
mining to allow for a meaningful analysis of potential impacts, the 
regulatory authority cannot approve the permit application in 
accordance with Sec.  780.21 of this rule. In addition, the commenter 
continued that we should provide guidance on incorporating anticipated 
mining areas into the cumulative hydrologic impact assessment. We 
disagree. The concept of including anticipated mining as part of the 
cumulative impact area is not new and has been an integral component of 
the cumulative impact area since the early 1980s. Sections 507(b)(11) 
and 510(b)(3) of SMCRA \130\ require that the regulatory authority 
prepare an assessment of the probable cumulative impact of all 
anticipated mining in the area upon the hydrology of the general area. 
In 1983, we adopted a definition of cumulative impact area to identify 
both the extent of the area that must be included in this evaluation 
and the scope of the term ``anticipated mining.'' Paragraphs (c)(1) 
through (3) of the proposed definition, now paragraphs (3)(i) through 
(iii) are substantively identical to paragraphs (a) through (c) of the 
previous definition. In addition, over the years, we have published 
several technical reference documents for the development of cumulative 
hydrologic impact assessments, including information on anticipated 
mining activities that provides guidance as requested by the commenter. 
Those documents are available on our home page on the internet 
(www.osmre.gov) or upon request.
---------------------------------------------------------------------------

    \130\ 30 U.S.C. 1257(b)(11) and 1261(b)(3).
---------------------------------------------------------------------------

    Several commenters stated there was no justification for a 
requirement to analyze the anticipated impacts after final bond release 
and that any requirement to do so was beyond SMCRA authority. In 
response, we have decided that it is neither feasible nor practical to 
attempt to predict anticipated cumulative impacts following final bond 
release. The final definition that we are adopting does not require 
this analysis of potential impacts after final bond release.
    One commenter disagreed with the inclusion of any proposed surface 
or underground coal mining operation for which a request for an 
authorization, certification, or permit has been submitted under the 
Clean Water Act as anticipated mining. We disagree with this comment. 
Inclusion of proposed operations in situations where the Clean Water 
Act authorization process has begun will result in preparation of a 
more comprehensive analysis by the permit applicant or permittee and 
the regulatory authority. Those operations are within the realm of 
anticipated mining because the permitting process for those mines has 
begun, albeit under the Clean Water Act rather than SMCRA. Nothing in 
section 507(b)(11) of SMCRA \131\ limits ``anticipated mining'' to 
operations that have begun the SMCRA permitting process. Further, Sec.  
780.27(a), about permitting requirements that apply to proposed 
activities in or through ephemeral streams and Sec.  780.28(a), about 
additional permitting requirements that apply to proposed activities 
in, through, or adjacent to a perennial or intermittent stream 
specifies that if the proposed permit area includes waters subject to 
the Clean Water Act, the regulatory authority must condition the permit 
to prohibit initiation of surface mining activities in or affecting 
those waters before the permittee obtains all necessary authorizations, 
certifications, and permits under the Clean Water Act.
---------------------------------------------------------------------------

    \131\ 30 U.S.C. 1257(b)(11).
---------------------------------------------------------------------------

Ecological Function
    We proposed to define the ``ecological function'' of a stream as 
the role that the stream plays in dissipating energy and transporting 
water, sediment, organic matter, and nutrients downstream. The proposed 
definition included the ability of the stream ecosystem to retain and 
transform inorganic materials needed for biological processes into 
organic forms and to oxidize organic molecules back into elemental 
forms through respiration and decomposition. It further stated that the 
term includes the role that the stream plays in the life cycles of 
plants, insects, amphibians, reptiles, fish, birds, and mammals that 
either reside in the stream or depend upon it for habitat, 
reproduction, food, water, or protection from predators. Finally, the 
proposed definition stated that the biological condition of a stream 
can be used as one measure to infer the status of the stream's 
ecological function.
    Various commenters found the definition to be overly broad, too 
vague, unclear, or lacking the specificity needed to establish 
standards for the restoration of ecological function. Other commenters 
opposed the definition based on the opinion that the definition relied 
too heavily on research in Appalachia and upon the U.S. Army Corps of 
Engineers guidance \132\ referenced in the preamble to the proposed 
rule. Other commenters expressed concern that we are mandating specific 
metrics that may not be applicable to all regions of the country or 
that may be unreasonably expensive. In response to these comments, and 
others which voiced concern that compliance with this definition is 
critical to the determination of bond release, we conducted further 
analyses to determine how to make this definition more applicable to 
scientifically defensible standards and to be more clearly measurable, 
and thus capable of implementation in the context of bond release. 
Therefore, and for the reasons explained further below, we modified the 
final rule to define ecological function as ``the species richness, 
diversity, and extent of plants, insects, amphibians, reptiles, fish, 
birds, mammals and other organisms for which the stream provides 
habitat, food, water, or shelter. The biological condition of a stream 
is one way to describe its ecological function.'' This definition 
includes some characteristics of what is often referred to in 
scientific literature as ecological structure, which often encompasses 
the abundance and composition of species as a result of

[[Page 93103]]

physical, chemical, and biological forces.\133\ Our definition of 
ecological function includes this abundance and composition of species 
when it refers to the species richness, diversity, and extent of 
plants, insects, amphibians, reptiles, fish, birds, mammals and other 
organisms. We are including this characteristic of ecological structure 
in the final rule definition of ecological function because this rule 
at Sec.  800.42(d)(2) requires restoration of ecological function in 
connection with Phase III bond release, and it is therefore necessary 
to have a definition that indicates the ways ecological function can be 
measured. The traditional bioassessment tools we require to assess and 
monitor perennial streams (and intermittent streams where 
scientifically defensible protocols exist) are appropriate to measure 
ecological function according to our definition. The last sentence of 
the definition of ``ecological function'' specifies that the biological 
condition of a stream is one way of describing its ecological function. 
Therefore, unless the regulatory authority determines additional 
criteria are necessary or appropriate, establishment of a standard 
based on biological condition (and scientifically defensible 
bioassessment protocols as described within the final rule within Sec.  
780.19(c)(6)) would suffice.
---------------------------------------------------------------------------

    \132\ U.S. Army Corps of Engineers, Operational Draft Regional 
Guidebook for the Functional Assessment of High-Gradient Ephemeral 
and Intermittent Headwater Streams in Western West Virginia and 
Eastern Kentucky. ERDC/ELTR-10-11, July 2010, U.S. Army Engineer 
Research and Development Center, Vicksburg, MS., (Jul. 2010).
    \133\ Eric Stokstad, On the Origin of Ecological Structure, 326 
(5949), Science, 33-35.
---------------------------------------------------------------------------

    We designed the final definition to better support the various ways 
in which regulatory authorities throughout the United States will 
actually have to assess and monitor ecological function in the context 
of sampling organisms. Some commenters objected to including factors 
within the definition of ``ecological function'' that have no direct 
role in demonstrating the success of reclamation under SMCRA. For 
example, the commenters noted that the ecological role that a stream 
plays in transporting nutrients downstream, known as nutrient cycling, 
is included within the definition, but is not a criterion used in 
determining eligibility for bond release. Another commenter noted that 
there is no agreement on objective standards for many facets of the 
definition. In response to these comments, the final definition 
eliminates references to physical and chemical processes such as 
dissipating energy; transporting water, sediment, organic matter, and 
nutrients downstream; transforming inorganic materials needed for 
biological processes into organic forms; and oxidizing organic 
molecules back into elemental forms. We also removed the specific 
reference to salamanders because that reference could be considered 
regionally biased and is unnecessary, as salamanders are not part of 
the ecology of all streams.
    Because we are requiring the reestablishment of ecological function 
as a condition for bond release, we have an obligation to both the 
permittees and the SMCRA regulatory authorities to provide enough 
information within the definition to allow for the creation of clear 
standards for purposes of bond release. This necessitates a definition 
that gives clear guidance to regulatory authorities on the meaning of 
ecological function but is still broad enough to allow them to assess 
and monitor organisms that these regulations do not specifically 
address. The final rule provides the regulatory authority with a 
practical definition of ``ecological function'' that will enable them 
to create specific standards for assessing ecological function in their 
various regions. The final definition does not mandate specific 
metrics, although it does specify that the biological condition of a 
stream is one way to describe its ecological function. Under this 
definition, regulatory authorities are free to develop specific 
standards related to various types of organisms or populations 
including the use of indirect ways to measure those organisms or 
populations, such as through leaf litter breakdown.\134\ It also 
recognizes that the presence of various types of populations, such as 
periphyton, fish, soil microbes, and mammals, could provide support to 
a finding that ecological function has been restored. The final 
definition also is designed to allow for future innovations in 
measuring ecological function as they become available.
---------------------------------------------------------------------------

    \134\ Mark O. Gessner & Eric Chauvet, A Case for Using Litter 
Breakdown to Assess Functional Stream Integrity. 12(2) Ecological 
Applications, 498-510 (2002).
    \134\ 30 U.S.C. 1270.
---------------------------------------------------------------------------

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

    \135\ 30 U.S.C. 1270.
---------------------------------------------------------------------------

    Finally, some commenters found our proposed definition to be 
overreaching and academic in nature and noted that methodology for 
measuring ecological function is still a matter of scientific debate. 
While we agree that science will continue to evolve on this topic, we 
disagree that this continued evolution precludes us from defining 
ecological function as we have done in the final rule. The final 
definition of ``ecological function'' merely clarifies our intended 
meaning of the term. It is not a metric in and of itself and standards 
for implementing this definition can be adapted, updated, and adjusted 
as the methodology evolves.
Ephemeral Stream
    As discussed in the preamble to the proposed rule, we proposed to 
redefine ``ephemeral stream'' in a manner that is substantively 
identical to the manner in which the U.S. Army Corps of Engineers 
defines that term in Part F of the 2012 reissuance of the nationwide 
permits under section 404 of the Clean Water Act. See 80 FR 44436, 
44470 (Jul. 27, 2015). Our existing definition classifies streamflow in 
response to the melting of snow and ice as an ephemeral stream, whereas 
the Corps' definition is silent on this point. The preamble to the 
Corps' definition states that the definition appropriately focuses on 
the duration of flow and provides that melting snow should not be 
considered a precipitation event because the development of snowpack 
over the winter season is not a particular event. See 77 FR 10184, 
10262 (Feb. 21, 2012). An industry commenter supported the Corps' 
treatment of snowmelt as appropriate because in areas where there is an 
ephemeral channel, snow depth can cause extended runoff which should 
not be considered in the determination of the channel classification. 
In a similar vein, a regulatory authority noted that small rills 
created by rainfall events and snowmelt in the arid and semi-arid 
landscape should not be considered ephemeral streams; other regulatory 
authority commenters, however, recognized snowmelt is an important 
source of streamflow in ephemeral streams and asserted that it should 
be considered as part of the definition. After reviewing the comments, 
we are revising the definition of ephemeral streams to include those 
conveyances receiving runoff from snowmelt events and that have both a 
bed-and-bank configuration and an ordinary high water mark. Including 
snowmelt events, in addition to rainfall events, as a primary source of 
flow is appropriate, as long as groundwater is not a source of surface 
water flow. The additional requirements that only those conveyances 
with channels that display

[[Page 93104]]

both a bed-and-bank configuration and an ordinary high water mark will 
ensure that rills created by rainfall or snowmelt events would not be 
classified as an ephemeral stream.
    One commenter strongly advised us to make no reference to the term 
``swale'' as a stream. The commenter stated that in the western United 
States the term ``swale'' is commonly used to describe topographic 
features that are often not waters of the United States under the Clean 
Water Act because these features lack an ordinary high water mark. The 
term ``swale'' was not used in the proposed rule or the final rule. To 
minimize any confusion concerning what is or what is not a stream, we 
have revised the stream definitions for ``ephemeral stream'', 
intermittent stream'', and ``perennial stream'' to include a 
requirement that any topographic feature to be considered a stream must 
have both a bed-and-bank and an ordinary high water mark, in addition 
to the other requirements outlined in the specific definitions.
Excess Spoil
    One commenter stated that the proposed definition of ``excess 
spoil'' was awkwardly worded. The commenter explained that the concept 
of ``excess spoil'' is complicated by the goal of minimizing ``excess 
spoil'' to reduce burial of streams. To address this and related 
comments expressing confusion regarding the term, we added to the 
definition of ``excess spoil'' a list of the types of spoil that do not 
constitute ``excess spoil''. This list excludes from the definition of 
``excess spoil'': Spoil required to restore the approximate original 
contour of the mined-out area; spoil used to blend the final 
configuration of the mined-out area with the surrounding terrain in 
non-steep slope areas; spoil placed outside the mined-out area as part 
of a remining operation; spoil placed within the mined-out area in 
accordance with the thick overburden provisions of Sec.  816.105(b)(1) 
of the final rule, except spoil material placed on the mined-out area 
as part of an excess spoil fill with a toe located outside the mined-
out area; and any temporary stockpile of material that will be 
subsequently transported to another location.
    Other commenters stated that the proposed definition might be 
misinterpreted to apply to topsoil or to temporary spoil piles. We 
agree and have revised the final rule to specify that ``excess spoil'' 
means spoil material permanently disposed of within the permit area. We 
further specified that temporary stockpiles of material that will be 
subsequently transported to another location are not included in the 
definition. The addition of the word ``permanent'' and the list 
explaining what is not considered ``excess spoil'' should preclude any 
misinterpretation that excess soil includes spoil or topsoil piles that 
are recognized as temporary in nature.
    Another commenter noted that the proposed definition of ``excess 
spoil'' could, perhaps, inadvertently, designate material placed in an 
existing bench to be classified as ``excess spoil''. This commenter 
explained that spoil material placed on an existing bench above the 
approximate original contour would be subject to the more stringent 
proposed requirements for excess spoil disposal. According to the 
commenter, this would result in an increased burden to both industry 
and regulatory authorities while not providing additional stability or 
stream protection. Interpretation of the commenter's term ``existing 
bench'' could be viewed in two ways. One interpretation is that the 
``existing bench'' is actually a previously mined bench. The other 
interpretation is that the ``existing bench'' is new construction as 
part of an active operation. If the first interpretation of the 
commenter's term is accepted--considering a bench on a previously mined 
area--we note that spoil placement on previously mined benches is 
preferable to construction of ``excess spoil'' on unmined land because 
it is more environmentally sound. In response, we revised the 
definition to exclude spoil material placed outside the mined-out area 
as part of a remining operation as explained within Sec.  816.106 or 
Sec.  817.106 of the final rule. Next, we considered the second 
potential interpretation--that the commenter's term ``existing bench'' 
pertains to construction as part of a current operation. The commenter 
is concerned that the classification of ``excess spoil'' includes spoil 
material placed in a manner that the lower portion of that spoil 
extends onto an open bench, most likely a bench developed along a lower 
coal seam mined, and the spoil material is placed at an elevation that 
is above the original elevation line. For the purposes of responding to 
this comment, we consider the commenter's reference to ``original 
elevation line'' to mean the approved approximate original contour 
surface. In the scenario that the commenter describes, the spoil 
material is placed on a newly created bench that is within the mined 
area and is therefore not considered ``excess spoil''. To further 
address the commenter's concern, we direct the commenter to Sec.  
780.35(b)(3) of the final rule that discusses the minimization and 
disposal of excess spoil. This section of the rule allows the placement 
of what would otherwise be ``excess spoil'' on the mined-out area to 
heights in excess of the approved approximate original contour surface. 
The purpose of Sec.  780.35(b)(3) is to avoid or minimize construction 
of excess spoil fills on undisturbed lands. When considering the 
definition of excess spoil and the provisions of Sec.  780.35(b)(3), 
spoil placed above the approved approximate original contour as 
described in the commenter's scenario is not considered ``excess 
spoil.''
    One commenter stated that the proposed changes to the ``excess 
spoil'' definition are primarily focused on mountaintop removal and 
thick overburden mines and have little relevance outside Appalachia, 
and that they should therefore be limited to Appalachia. We acknowledge 
that ``excess spoil'' is primarily generated in central and southern 
Appalachia where both thick overburden and steep slopes are prevalent. 
However, mines in other regions also generate ``excess spoil''. For 
example, Alaska has a permit that generates excess spoil. Further, by 
definition, excess spoil is only applicable to those areas where it is 
generated, so, by default, if an area does not generate excess spoil 
then the rule provisions that pertain to excess spoil would not apply 
on that location.
    One commenter indicated that the proposed preamble discussion 
implies that box cut spoil placed outside of the pit is not excess 
spoil for non-steep slope mining. We agree, noting that, by definition, 
the creation of box cut spoil on non-steep sloped areas does not 
automatically qualify this material as excess spoil, as this spoil is 
available for placement within the mined area and outside of the mined 
area when used to blend with the surrounding terrain.
Fill
    We received no comments on this proposed definition, which we are 
adopting as proposed.
Form
    Within Sec. Sec.  780.28, 784.28, 800.42, 816.57, and 817.57 of the 
proposed rule, relating to activities in through, or adjacent to 
perennial and intermittent streams, we made reference to the 
restoration of the ``form'' of a stream. Specifically, the proposed 
rule required applicants desiring to mine through or divert a perennial 
or intermittent stream to ``demonstrate that [they could] restore the 
form . . . of the affected stream.

[[Page 93105]]

. . .'' \136\ Additionally, in Sec. Sec.  816.57 and 817.57 \137\ we 
proposed that ``form'' of a stream segment must be restored. We 
explained in the preamble to the proposed rule that:
---------------------------------------------------------------------------

    \136\ 80 FR 44436, 44610 and 44632 (Jul. 27, 2015).
    \137\ 80 FR 44436, 44656 and 44681 (Jul. 27, 2015).

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

    \138\ Id.

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

    \139\ Dave Rosgen, Applied River Morphology, Chapter 2, 
Fundamental Principles of River Systems and Chapter 5, The 
Morphological Description. (1996).
---------------------------------------------------------------------------

    The addition of the definition of ``form'' will also provide 
clarity regarding the requirements for achieving Phase I bond release 
when mining through or permanently diverting a perennial or 
intermittent stream as discussed and explained more thoroughly 
throughout the applicable sections of the final rule preamble 
discussion.
    The term ``form,'' as used in Sec. Sec.  780.28(e)(1)(viii), 
784.28(e)(1)(viii), 800.42(b)(1), 816.57(e), and 817.57(e), means the 
physical characteristics, pattern, profile, and dimensions of a stream 
channel. It is necessary to define the ``form'' of a stream because it 
greatly influences a stream's ``hydrologic function,'' which is also a 
term we are incorporating into the final rule for clarity. As contained 
in the final rule, the term ``form'' includes, but is not limited to, 
the flood-prone area to bankfull width ratio (entrenchment), channel 
width to depth ratio, channel slope, sinuosity, bankfull depth, 
dominant in-stream substrate particle size, and capacity for riffles 
and pools.
    Specific to the definition of ``form,'' entrenchment defines the 
extent of flood prone area relative to channel size and, therefore, the 
areas in which hydrophilic and hydrophytic plant species are most 
adaptable. Channel width-to-depth ratio, in conjunction with channel 
slope, determines the discharge that, over time, transports most 
sediment downstream. Sinuosity directly influences channel slope. The 
dominant in-stream substrate particle size is dependent on discharge at 
bankfull stage and channel slope, and determines the nature of in-
stream habitat and the types of biota that will dominate given 
appropriate water quality and nutrient availability. Additionally, in a 
natural or properly restored stream these components of ``form'' reach 
equilibrium such that they all remain relatively constant, even as the 
dynamic stream exists in a constant state of flux, with meanders 
migrating downstream, and the stream channel at any given location 
moving back and forth across the flood prone area. All of these 
features are integral to restoring ``form'' and ultimately to achieving 
successful stream restoration. Establishment of ``form'' is a 
prerequisite to achieving ``hydrologic function.''
Fugitive Dust
    We proposed to remove this definition because it defines a term 
that we no longer use in our regulations. See 80 FR 44436, 44471 (Jul. 
27, 2015).\140\ We received no comments on the deletion of this term, 
so we are adopting our proposed action of deletion.
---------------------------------------------------------------------------

    \140\ 80 FR 44436 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

    \141\ Andrew Stone.''The ABCs of Aquifers,'' (May 30, 2010); 
available at http://www.nationaldriller.com/articles/85773-the-abcs-of-aquifers (last accessed Nov. 8, 2016).
    \142\ Allen Freeze & John A. Cherry, Groundwater, Prentice-Hall, 
Englewood Cliffs, N.J., at pg. 2 (1979).
---------------------------------------------------------------------------

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

    \143\ Id. at 2.
---------------------------------------------------------------------------

    Another commenter concerned about restoring perched aquifers within 
the permit area opined that perched aquifers are often difficult to 
differentiate from temporary saturation of the soil horizon as a result 
of precipitation events. We disagree. A perched aquifer has distinct 
properties, such as saturated permeable sediments overlying 
discontinuous impermeable sediments that are not found in soil 
horizons. The geologic information the permittee is required to collect 
as part of the permit application process under final rule Sec.   
780.19(f) will provide the information needed to differentiate a 
perched aquifer from a temporarily saturated soil horizon within the 
permit area.
    Another commenter asserted that the proposed definition for 
``groundwater'' included water in regional and perched aquifers. The 
same commenter was also concerned with the inclusion of ``perched 
aquifers'' in the definition of groundwater. The commenter was 
concerned that mining through a perched aquifer within the permit area 
would no longer be allowed because it would be considered impacts to 
groundwater, constituting material

[[Page 93106]]

damage of the hydrologic balance outside the permit area. We disagree 
with both of the commenter's assertions. First, under our previous 
definition of groundwater,\144\ perched aquifers, local aquifers, and 
regional aquifers are all included in the definition. Therefore, there 
is no change in this respect to the definition of groundwater in the 
final rule; we merely listed specific aquifer types for the sake of 
clarity. In the proposed rule, we inadvertently excluded ``local 
aquifer'' from the list of types of aquifers. This was an oversight; 
therefore, we added ``local aquifer'' to the final rule definition of 
``groundwater''. Secondly, the commenter's assertion that mining 
through a perched aquifer within the permit area would no longer be 
permissible is not accurate. As stated in the preamble,\145\ perched 
aquifers could be mined through within the permit area and need not be 
restored unless restoration is needed to prevent material to the 
hydrologic balance outside the permit area.
---------------------------------------------------------------------------

    \144\ 44 FR 15318 (Mar. 13, 1979).
    \145\ 80 FR 44436, 44471 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

    \146\ 44 FR 15317 (Mar. 13, 1979).
    \147\ Freeze and Cherry, Groundwater at 39.
---------------------------------------------------------------------------

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

    \148\ 80 FR 44436, 44587 (July 27, 2015).
---------------------------------------------------------------------------

Highwall Remnant
    We received no comments on our proposed removal of this definition, 
which we are removing as proposed.
Hydrologic Balance
    We proposed to revise our definition of ``hydrologic balance'' in 
Sec.  701.5 to include more emphasis on water quality by specifying 
that the definition encompasses ``interactions that result in changes 
in the chemical composition or physical characteristics of groundwater 
and surface water, which may in turn affect the biological condition of 
streams and other water bodies.'' Several commenters either questioned 
the rationale for inclusion of the latter phrase or erroneously 
interpreted it as incorporating biological condition into the 
definition. The commenters opposed the proposed addition, asserting 
that the definition of ``hydrologic balance'' should focus on water 
quality and quantity and not the aquatic community.
    We never intended for biological condition to be part of the 
definition of ``hydrologic balance'' which we agree should be limited 
to water quality, quantity, movement, and storage. Therefore, the 
definition that we are adopting as part of this final rule does not 
include the phrase ``which may in turn affect the biological condition 
of streams and other water bodies.'' However, that phrase is an 
accurate statement in that interactions that result in changes in the 
chemical composition or physical characteristics of groundwater and 
surface water may indeed affect the biological condition of streams and 
other water bodies, which is one of the reasons that the impact of 
mining and reclamation on the hydrologic balance is a primary focus of 
SMCRA and the permitting process.
    One commenter stated that the definition should be limited to the 
flow, quantity, and physical form of water. According to the commenter, 
the definition should not include any mention of water quality. We 
disagree. SMCRA quite clearly includes water quality as a component of 
the hydrologic balance. For example, section 515(b)(10) \149\ requires 
that surface coal mining operations minimize disturbances to the 
prevailing hydrologic balance at the mine site and in associated 
offsite areas by various methods, including avoiding acid or other 
toxic mine drainage and preventing, to the extent possible using the 
best technology currently available, additional contributions of 
suspended solids to streamflow. Both of these methods address water 
quality issues.
---------------------------------------------------------------------------

    \149\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

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

    \150\ 80 FR 44436, 44610 and 44632 (Jul. 27, 2015).
    \151\ 80 FR 44436, 44656 and 44681 (Jul. 27, 2015).

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

    \152\ Id.

Despite this explanation in the preamble, several commenters questioned 
the meaning of the term ``form'' and how this term related to the term 
``function'' that was also discussed in the proposed rule. Similarly, 
many commenters questioned the application of and relationship to the 
term ``form'' to the bond release provisions of Sec.  800.42(b)(1) of 
the proposed rule and references to bond release within Sec. Sec.  
780.28, 784.28, 800.42, 816.57, and 817.57. After consideration of 
these comments, we agree that the use of the term ``form'' and the 
similar term ``hydrological form'' within the proposed rule could be 
confusing. Therefore, we have eliminated any reference to 
``hydrological form'' and have included a definition of the term 
``hydrologic function'' in Sec.  701.5. The term ``hydrologic 
function,'' is a term we are incorporating into the final rule for 
clarity.
    The addition of the definition of ``hydrologic function'' will also 
provide clarity regarding the requirements for achieving Phase II bond 
release when mining through or permanently

[[Page 93107]]

diverting a segment of a perennial or intermittent stream as discussed 
and explained more thoroughly throughout the applicable sections of the 
final rule preamble discussion.
    The term ``hydrologic function'', as used in Sec. Sec.  780.28(e), 
784.28(e), 800.42(b)(2), 816.57(f), and 817.57(f), refers to the role 
that streams play in transport of water and flow of water within the 
stream channel and floodplain. As contained in the final rule, the term 
``hydrologic function'' includes total flow volume, seasonal variations 
in streamflow and base flow, and provisions of the water needed to 
maintain floodplains and wetlands associated with the stream. 
Establishment of ``hydrologic function'' occurs after achieving 
``form.'' The ``form'' of the stream has a significant impact on 
hydrologic function.
Intermittent Stream
    As discussed in the preamble to the proposed rule,\153\ we proposed 
to redefine ``intermittent stream'' in a manner that is substantively 
identical to the manner in which the U.S. Army Corps of Engineers 
defines that term in Part F of the 2012 reissuance of the nationwide 
permits \154\ under section 404 of the Clean Water Act.\155\ 
Additionally, we proposed to remove paragraph (a) of our former 
definition of ``intermittent stream.'' See 80 FR 44436, 44472 (Jul. 27, 
2015). We received differing opinions on this invitation for comment. 
One regulatory authority and other commenters supported the proposed 
deletion while others urged the retention of paragraph (a), which 
provided that an intermittent stream means ``a stream or reach of a 
stream that drains a watershed of at least one square mile. . . .'' 
This former definition functioned to automatically designate any stream 
or reach of stream that drains a watershed of at least one square mile 
as an intermittent stream. We agree with the commenters supporting the 
deletion of paragraph (a) because the former definition is inconsistent 
with generally accepted stream classification systems because it is 
based on watershed size rather than streambed characteristics, 
duration, and source of streamflow. Therefore, we are not including 
paragraph (a) as it existed in the former regulation within the 
definition of ``intermittent stream'' in the final rule.
---------------------------------------------------------------------------

    \153\ 80 FR 44436, 44472 (Jul. 27, 2015).
    \154\ 77 FR 10184,10288 (Feb. 21, 2012).
    \155\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    We received comments requesting that we add runoff from snowmelt 
events to the definition. For the same reasons explained in the 
preamble to the ``ephemeral stream'' definition, we are adding 
reference to ``snowmelt'' within the definition of ``intermittent 
stream.''
    One commenter suggested the definition should be tied to the number 
of months in each year that snowmelt normally contributes to the 
baseflow in the stream. This comment was not accepted because the 
``intermittent stream'' definition recognizes that snowmelt provides 
supplemental flow and that supplemental flow may only occur during 
certain times of the year.
    Another commenter pointed out that the proposed definition of 
``intermittent stream'' did not explicitly mention the relationship the 
stream has to the water table. The commenter thought this was 
problematic because we included the relationship in the proposed 
definition of ``perennial stream''. For the purposes of consistency and 
clarity we added a statement in the final rule definition that 
describes the relationship between the water table and an intermittent 
stream.
    One commenter opined that the definition of ``intermittent stream'' 
should address whether a stream's function is impaired by change in 
flow and potential change in frequency, duration, magnitude, rate of 
change, and timing of flows. We did not accept this comment because 
functional impairment from water quantity changes is more appropriately 
addressed by the definition of ``material damage to the hydrologic 
balance outside the permit area'' found at Sec.  701.5, and explained 
in this preamble.
    Although we specified within the proposed definition that an 
``intermittent stream'' means ``a stream or part of a stream that has 
flowing water during certain times of the year when groundwater 
provides water for streamflow'' several commenters questioned the 
extent to which groundwater should be considered in the definition of 
``intermittent stream.'' Some commenters requested that the definition 
of ``intermittent stream'' specify that the groundwater contribution is 
from an aquifer and not a result of man-made features such as upstream 
reservoirs, groundwater pumped to the surface, or irrigation return 
flows. In addition, several commenters recommended the definition 
require that there be a contribution from groundwater and not strictly 
surface water runoff. Another commenter requested clarification that 
the mere occurrence of snowmelt in spring would not automatically make 
a stream ``intermittent'' rather than ``ephemeral.'' In consideration 
of these comments, we clarified the definition of ``intermittent 
stream.'' Within the final rule the definition of ``intermittent 
stream'' now includes the clarifying statement: ``[t]he water table is 
located above the streambed for only part of the year, which means that 
intermittent streams may not have flowing water during dry periods.'' 
Additionally, we agree with commenters that snowmelt should be 
considered a supplemental source of water for streamflow. Therefore, we 
have incorporated ``snowmelt'' into the final rule definition.
    A commenter asserted that based on the proposed definition of 
``intermittent stream'' and the prohibition of the placement of 
sedimentation control structures in a perennial or intermittent stream, 
coal mining would be severely and negatively impacted in the western 
region. The commenter implies that because intermittent streams with 
nominally, low-yield base flow from spring discharges are common in the 
western region, the proposed definition would change the stream 
classification. We disagree. Neither the proposed definition nor the 
definition within the final rule has any effect on the steam 
designation because both definitions require contribution of 
groundwater flow to the stream during parts of the year. In addition, 
the commenter opined that there should be an allowance for sediment 
control systems for other mining areas in relationship to intermittent 
streams similar to the exceptions allowed for excess spoil fills and 
steep-slope areas as provided in proposed paragraph (c) of Sec.  816.57 
and discussed within the preamble to the proposed rule.\156\ The 
exceptions outlined in the proposed rule are incorporated into the 
final rule because in some steep-slope areas the only place to install 
a sedimentation control structure is in the stream. This is discussed 
in more detail in the preamble discussion of paragraph (h) of Sec.  
816.57.
---------------------------------------------------------------------------

    \156\ 80 FR 44436, 44554-44555 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

[[Page 93108]]

and intermittent streams to the definitions of those terms in the U.S. 
Army Corps of Engineers 2012 Nationwide Permit may result in our 
definitions becoming obsolete when the nationwide permits are re-
evaluated. After considering the comments, we are not adopting the U.S. 
Army Corps of Engineers' definition verbatim.
Invasive Species
    Some commenters requested the final rule include definitions of 
``invasive species,'' ``non-invasive species,'' and ``native species.'' 
Other commenters requested that we allow the regulatory authority to 
have latitude to define these terms. In response, we are adding two 
definitions to the final rule. We are defining ``invasive species'' and 
``native species'' in the final rule. In the preamble to the proposed 
rule at Sec.  780.12(g) \157\ we referenced Executive Order 13112,\158\ 
which focused on ``invasive species.'' This 1999 Executive Order 
included definitions of both ``invasive species'' and ``native 
species.'' On December 5, 2016, the 1999 Executive Order was amended by 
Executive Order 13751.\159\ Executive Order 13751, entitled 
``Safeguarding the Nation from the Impacts of Invasive Species,'' 
includes a slightly modified definition of invasive species as compared 
to the 1999 Executive Order. Because the 1999 Executive Order language 
more closely tracks the language of SMCRA related to protection of the 
human health and the environment, with one minor change for grammatical 
improvements, we are incorporating the definitions from the 1999 
Executive Order into the final rule:
---------------------------------------------------------------------------

    \157\ 80 FR 44436, 44491 (Jul. 27, 2015).
    \158\ Exec. Order No. 13112 of February 3, 1999, 64 FR 6184 
(Feb. 8, 1999).
    \159\ Executive Order 13751 was published in the Federal 
Register on December 8, 2016, and can be found at 81 FR 88609.
---------------------------------------------------------------------------

    In response to the commenters that suggested that we allow the 
regulatory authority latitude to define these terms, we do not agree. 
It is important to have uniform definitions of these terms, and these 
definitions, adapted from the 1999 and 2016 Executive Orders, 
accomplish that objective. These final definitions of ``invasive 
species'' and ``native species'' satisfy the purposes of SMCRA, are 
appropriate, will provide sufficient guidance to regulatory 
authorities, and are generally consistent with the applicable Executive 
Orders. For example, although our definition of ``invasive species'' 
contains the term ``alien species'' and the definition in Executive 
Order 13751 does not, our use of that term is consistent with that 
Executive Order's new definition of ``alien species.'' In response to 
the request to define ``non-invasive species,'' we decline because 
those species that are not defined as invasive species will be 
classified as non-invasive species.
Land Use
    One commenter stated that we should use or recognize international 
definitions of ``land use'' such as the definitions from the 
Organisation for Economic Co-operation and Development because these 
definitions are more practical when recognizing economic and cultural 
activities associated with human use of the land. The commenter further 
stated that we should explain the meaning of ``support facilities'' and 
``integral part of the use'' included within the definition of ``land 
use.'' The existing definition of ``land use'' is sufficient. Moreover, 
as these terms were included in the previous version of the definition 
of ``land use'' and not otherwise proposed for change, we see no need 
to further explain their meaning or to use other definitions as 
suggested by the commenter. Our reason for changing this definition to 
include the sentence, ``[e]ach land use category includes land used for 
facilities that support the land use'' is to ensure the definition is 
aligned with our corresponding changes to Sec. Sec.  780.24 and 784.24. 
The alterations of this section allow for modification of postmining 
land uses from premining without requiring approval of higher and 
better use if the land that existed before mining was already capable 
of supporting that use in its existing condition. We did not receive 
any comments on this aspect of definition change.
Material Damage
    This definition discusses ``material damage'' in the context of the 
subsidence control provisions of Sec. Sec.  784.30 and 817.121, which 
we have clarified in this final rule. Several commenters raised 
concerns about the effects of subsidence on the land and waters 
overlying the underground mining activities. Commenters also raised 
concerns about the applicability of the definition of ``material 
damage'' (in the context of underground mine subsidence) to hydrologic 
features and recommended that subsidence damage to surface waters be 
more specifically regulated. Many of these concerns are discussed in 
Part IV.K. of the preamble which discusses material damage from 
subsidence and in the preamble discussion to our definition of material 
damage to the hydrologic balance outside the permit areas in Sec.  
701.5 of this preamble. Other comments are discussed in the sections of 
the preamble that address the changes we have made to our subsidence 
control plan provisions at Sec.  784.30 (previously Sec.  784.20), or 
that explain the measures to prevent, control, or correct damage 
resulting from subsidence at Sec.  817.121. Notably, as explained more 
fully in our preamble discussion at Part IV.K., we are revising the 
definition of ``material damage'' in the context of the subsidence 
control provisions of Sec. Sec.  784.30 and 817.121 to specifically 
include wetlands, streams, and bodies of water. Adding these features 
to the definition clarifies that not only subsidence damage to surface 
lands but also subsidence damage resulting in functional impairment of 
wetlands, streams, and bodies of water, must be repaired pursuant to 
the subsidence repair provisions of Sec.  817.121(c). As previously 
explained, we have required operators to address impacts and correct 
subsidence damages to land and water features since 1995 when we 
published the final rule addressing the subsidence provisions of the 
Energy Policy Act of 1992. Thus, by adding ``wetlands, streams, and 
bodies of water'' to the definition of ``material damage'' in the 
subsidence context, we are merely reinforcing our longstanding 
position.
    Some commenters requested that the final rule specifically address 
material damage to the hydrologic balance outside the permit area from 
longwall mining that adversely impacts the productivity of prime 
farmland. Longwall mining is a method of underground mining that 
results in planned subsidence. The commenters suggested revisions to 
several provisions of our regulations, including the definition of 
``material damage'' in the context of subsidence in Sec.  701.5, our 
subsidence control regulations in Sec.  784.30 (previously Sec.  
784.20), and our prime farmland restoration regulations in Sec.  
785.17.
    We decline to adopt the recommended revisions. We do not interpret 
SMCRA as authorizing protection of prime farmland from the impacts of 
subsidence from longwall mining operations beyond the degree of 
protection afforded by Sec.  817.121(c) of our final rule. Section 
516(b)(1) of SMCRA \160\ does not require that operations using mining 
technology that requires planned subsidence in a predictable and 
controlled manner (primarily longwall mining) adopt measures to prevent 
subsidence from causing material damage to the extent technologically 
and economically

[[Page 93109]]

feasible. However, our regulations at Sec.  817.121(c) provide that, to 
the extent technologically and economically feasible, the permittee of 
any type of underground mine, including longwall mines, must correct 
any material damage resulting from subsidence caused to surface lands, 
wetlands, streams, or water bodies by restoring the land and water 
features to a condition capable of maintaining the value and reasonably 
foreseeable uses that the land was capable of supporting before 
subsidence damage occurred. Our definition of ``material damage'' in 
final Sec.  701.5 in the context of subsidence includes any functional 
impairment of surface lands, features, including wetlands, streams, and 
bodies of water, structures or facilities, and any physical change that 
has a significant adverse impact on the affected land's capability to 
support any current or reasonably foreseeable uses or that causes a 
significant loss in production or income. Therefore, under final Sec.  
817.121(c), to the extent technologically and economically feasible, 
the permittee must repair any surface lands, including prime farmland, 
whenever subsidence resulting from underground mining causes 
significant loss in production or income or has a significant adverse 
impact on the capability of the land to support the uses that it 
supported before subsidence damage occurred. In addition, we added 
Sec.  817.121(c)(2), which requires that the permittee implement fish 
and wildlife enhancement measures, as approved by the regulatory 
authority in a permit revision, to offset subsidence-related material 
damage to wetlands or a perennial or intermittent stream when 
correction of that damage is technologically and economically 
infeasible.
---------------------------------------------------------------------------

    \160\ 30 U.S.C. 1266(b)(1).
---------------------------------------------------------------------------

Material Damage to the Hydrologic Balance Outside the Permit Area
    We received numerous general and specific comments on various 
aspects of our proposed definition for ``material damage to the 
hydrologic balance outside the permit area.'' Several commenters 
requested that we refrain from finalizing a definition and continue to 
allow regulatory authorities the flexibility to define the term for 
their jurisdictions in order to best reflect local conditions. These 
commenters often focused on the diversity of the country and objected 
to the perceived ``one-size-fits-all'' approach of the proposed 
definition. Some commenters noted that some states, such as West 
Virginia and Montana, already have definitions of the term. Other 
states define ``material damage to the hydrologic balance outside the 
permit area'' on a case-by-case basis. Similarly, some commenters 
suggested that, instead of a uniform federal definition of ``material 
damage to the hydrologic balance outside the permit area'', we could 
better address the concerns that we raised in the preamble to the 
proposed rule by providing technical support to the regulatory 
authorities so that they could be equipped to define ``material damage 
to the hydrologic balance outside the permit area'' in their own 
states.
    We agree with these commenters in part--states do need the 
flexibility to define ``material damage to the hydrologic balance 
outside the permit area'' to account for local and regional differences 
in geology, hydrology, mining, and reclamation. However, a federal 
definition is necessary to provide guidance and clarity to the 
regulatory authorities as they define the term for their own 
jurisdictions. As discussed in more detail in the preamble to the 
proposed rule, our previous rules did not contain a definition of 
``material damage to the hydrologic balance outside the permit area,'' 
and, in the more than 30 years since SMCRA's enactment, very few states 
have adopted a definition.\161\ As a result of the lack of a 
definition, what constitutes ``material damage to the hydrologic 
balance outside the permit area'' varies greatly. This has led to 
differences in enforcement across the country. These differences have 
also resulted in coal field water quality data that shows significant 
coal mining impacts in many streams across the country.\162\ For these 
reasons, we are adopting a definition of ``material damage to the 
hydrologic balance outside the permit area'' that provides minimum 
nationwide standards while also providing each regulatory authority 
with the flexibility to tailor the definition to meet the needs of its 
jurisdiction while ensuring minimal standards are met.
---------------------------------------------------------------------------

    \161\ 80 FR 44436, 44473-44476 (Jul. 27, 2015).
    \162\ See, e.g., 80 FR at 44440-44441 (Jul. 27, 2015).
---------------------------------------------------------------------------

    To help clarify the regulation and to comply with the requirements 
of the Office of the Federal Register, we have revised and re-
designated proposed paragraphs (a) and (b) of the definition into three 
paragraphs (1), (2), and (3).
    The basic definition now provides that ``material damage to the 
hydrologic balance outside the permit area'' is an adverse impact, from 
surface coal mining and reclamation operations, underground mining 
activities, or subsidence associated with underground mining 
activities, on the quality or quantity of surface water or groundwater, 
or on the biological condition of a perennial or intermittent stream.'' 
What constitutes an adverse impact for determining material damage to 
the hydrologic balance outside the permit area is now based on 
consideration of certain types of reasonably anticipated or actual 
effects of the operation, such as effects that (1) cause or contribute 
to a violation of applicable state or tribal water quality standards or 
a state or federal water quality standard established for a surface 
water outside the permit area under section 303(c) of the Clean Water 
Act, 33 U.S.C. 1313(c), or, for a surface water for which no water 
quality standard has been established, effects that cause or contribute 
to non-attainment of any premining use of surface water outside the 
permit area; (2) preclude a premining use of groundwater outside the 
permit area; or (3) result in a violation of the Endangered Species Act 
of 1973, 16 U.S.C. 1531 et seq.
    The combination of the basic definition and procedures for 
considering the types of effects that constitute material damage to the 
hydrologic balance outside the permit area in paragraphs (1) through 
(3) is substantively similar to the proposed definition, with several 
exceptions. First, we deleted the references in the proposed definition 
to reasonably foreseeable uses based on comments from the public, state 
regulatory authorities, and other federal agencies. Among other things, 
the term ``reasonably foreseeable uses'' is too speculative for 
purposes of this definition. Second, we also deleted references to 
``existing use,'' because, as some commenters noted, it could create 
confusion because the regulations implementing the Clean Water Act 
define that term in the context of that law. To avoid any possible 
confusion, as some commenters suggested, we replaced ``existing'' with 
``premining'' in paragraph (2) and added a definition of that term in 
Sec.  701.5. That definition provides that ``premining'' refers to the 
conditions and features that exist on a site at the time of application 
for a permit to conduct surface coal mining operations.
    This revised definition also removes the proposed definition's 
direct reference to designated uses. We made this change for two 
reasons. First, the concept of water quality standards under the Clean 
Water Act, includes, but is ultimately broader than using just 
designated use. Designated uses are part of the water quality 
standards, along with water quality criteria, antidegradation 
provisions, and other

[[Page 93110]]

policies each respective state develops to help implement the Clean 
Water Act. Consideration of all of these components of water quality 
standards provides a more complete evaluation of what constitutes 
material damage to the hydrologic balance outside the permit area.
    Second, we wanted to emphasize the relationship between the 
requirements of SMCRA and Clean Water Act as it relates to surface 
water affected by coal mining operations. Thus, the final definition of 
material damage to the hydrologic balance outside the permit area 
better reconciles the requirement of SMCRA to perform a cumulative 
hydrologic impact assessment with the jurisdiction given to the Clean 
Water Act authority for the Nation's waters. It also highlights the 
need for coordination between the regulatory authority and the 
appropriate Clean Water Act authorities to develop the CHIA and to make 
the appropriate findings that the operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area.
    In order to effectively implement this definition, the regulatory 
authority and appropriate Clean Water Act authorities should coordinate 
during the permit application process consistent with the requirements 
of the final rule. After permit issuance, they should also jointly 
investigate potential water quality violations related to coal mining 
operations, as appropriate. At both of these stages, this coordination 
focuses on exchanging project specific information to provide the 
regulatory authority with information to better assess the effects of 
the operation on the cumulative impact area. This process should focus 
on the pertinent water quality standards in force for the specific site 
and any applicable state or tribal polices governing low flow, mixing 
zones, and/or any variances in play to ensure an appropriate evaluation 
of what constitutes material damage to the hydrologic balance outside 
the permit area, where it should be measured, and what material damage 
and evaluation thresholds are applicable for each situation. This 
process should enhance regulatory certainty for permit applicants and 
operators because it will minimize or eliminate conflicts between the 
agencies concerning impacts to receiving water bodies and identify 
measures that should be adopted to comply with the requirements of both 
statutes.
    A commenter expressed concern that the proposed definition was 
impossible to interpret and evaluate in regard to compliance with 
SMCRA. We disagree; interpretation and compliance with this definition 
is possible for several reasons. For the first time since SMCRA was 
enacted, a federal definition of material damage to the hydrologic 
balance outside the permit area describes levels of unacceptable 
changes to the hydrologic balance that result from a SMCRA operation. 
These unacceptable impacts include precluding the attainment of Clean 
Water Act water quality standards, not maintaining premining use for 
groundwater, and effects that result in a violation of the Endangered 
Species Act. As previously stated, post-SMCRA mining has impaired 
receiving streams, which is an unacceptable effect of current mining 
practices under the Act. If the concept of material damage to the 
hydrologic balance outside the permit area had been more clearly 
understood or defined, these impacts should have been prevented.
    Commenters have generally cited two situations in which it will be 
impossible for regulatory authorities to apply the proposed definition. 
First, they claim that a one-time or temporary occurrence should not 
constitute material damage to the hydrologic balance outside the permit 
area. As discussed in more detail below, we generally agree, as long as 
the temporary occurrence does not affect the stream to the extent that, 
for example, the stream fails to satisfy applicable water quality 
standards or violate the SMCRA material damage thresholds set for the 
site. However, over the years, regulatory authorities, including us, 
have witnessed single or temporary events of large magnitude that have 
risen to the level of ``material damage to the hydrologic balance 
outside the permit area''. These events clearly violated the Clean 
Water Act water quality standards of the streams affected. Second, 
these commenters contend that the definition does not allow natural and 
non-mining conditions to be factored into whether a stream maintains 
its applicable water quality standards. As discussed below, we 
disagree. The definition allows natural, non-mining, and mining-caused 
stream variations as long as the stream maintains its applicable water 
quality standards. The definition simply provides a common framework 
from which to assess impacts to receiving bodies of water. Latitude 
exists within this definition for regulatory authorities to tailor the 
specific meaning of ``material damage to the hydrologic balance outside 
the permit area'' to suit their particular state and situations 
encountered at specific mines. In addition, if the designated use is 
inaccurate or unattainable for natural or other reasons, the Clean 
Water Act authority has the flexibility under the Clean Water Act and 
the implementing regulations at 40 CFR part 131 to revise the 
designated use to more accurately reflect the highest attainable 
designated use.
    A commenter also asserted that the definition, as proposed would 
result in denial of all future permit applications. We disagree. As 
previously stated, material damage to the hydrologic balance outside 
the permit area only occurs when a mining operation causes a stream not 
to satisfy its applicable Clean Water Act water quality standards or an 
aquifer to not meet its premining use. Variations in water quality, 
quantity, biological condition, and/or aquatic habitat can occur as 
long as the stream satisfies is applicable Clean Water Act water 
quality standards or an aquifer meets its premining use. A mining 
operation can have an adverse effect on a receiving stream as long as 
the stream still satisfies its applicable water quality standards, an 
aquifer meets its premining use as determined by the SMCRA regulatory 
authority, and no violations of the Endangered Species Act are 
occurring. For example, a reduction in a stream's index of biotic 
integrity score would not constitute ``material damage to the 
hydrologic balance outside the permit area'' if the stream is 
satisfying its applicable Clean Water Act water quality standards and 
not in violation of the Endangered Species Act. Similarly, a reduction 
in an aquifer's water quality parameter concentrations is not 
``material damage to the hydrologic balance outside the permit area'' 
as long as the aquifer is meeting its premining use and it is not 
preventing an adjacent receiving stream from satisfying its applicable 
Clean Water Act water quality standards or if no designated use is 
defined, its premining use outside the permit area. The concept of 
Clean Water Act water quality standards has always existed in both the 
Clean Water Act and has been relevant in SMCRA analyses since the 
inception of both statutes, see, e.g., section 508(a)(13) of SMCRA. 
This approach taken in our definition, consequently, is not a new one; 
the definition simply codifies a system that has existed for more than 
thirty years and under which many permits have been issued.
    A commenter objected to our statement in the proposed rule that 
because the Clean Water Act does not apply to groundwater, the 
regulatory authority would need to use ``best judgment'' to establish 
``material damage to the hydrologic balance'' criteria to protect 
existing and

[[Page 93111]]

foreseeable uses of groundwater. The commenter asserted that the use of 
term ``best judgment'' was not sufficiently clear and would negatively 
impact the operator and, thus, it should be eliminated. First, ``best 
judgment'' does not appear in the regulation. Instead, it is in 
recognition of the many decisions the regulatory authority must make 
about a specific coal mining operation. The regulatory authority makes 
these decisions using their ``best judgment'' based on the information 
and data gleaned during the decision making process. This is wholly 
appropriate, and we are not making any changes to the final rule in 
response to this comment.
    Several commenters implied that material damage to the hydrologic 
balance outside the permit area should arise any time a partial 
degradation to surface water or groundwater occurred. Specifically, 
they suggested that as part of the definition, we should require that 
material damage to the hydrologic balance outside the permit area 
include impacts that ``partially or significantly degrade'' or 
``partially, completely eliminate, or significantly degrade'' any 
designated use under sections 101(a) or 303(c) of the Clean Water Act 
or any existing or reasonably foreseeable use of surface water or 
groundwater outside the permit area. We disagree that material damage 
to the hydrologic balance outside the permit area occurs every time a 
stream or groundwater is partially degraded, or in some circumstances 
significantly degraded, because the terms ``partially'' and 
``significantly'' are subjective, do not convey a sense of magnitude, 
and are open to interpretation and abuse. Both the Clean Water Act and 
SMCRA allow some variation in water quality. For instance, the Clean 
Water Act recognizes that in some situations water quality may vary 
while still being protective of the designated use. However, if the 
ambient quality is on the verge of the ambient water quality criterion 
level, then any amount of degradation could impair the designated use. 
In addition, section 515(b)(10) of SMCRA \163\ requires operations to 
minimize material damage to the hydrologic balance inside the permit 
boundary and section 510(b)(3) of SMCRA requires that the proposed 
operation be ``designed to prevent material damage to hydrologic 
balance outside [the] permit area.'' \164\ SMCRA, therefore, allows 
damage to the hydrologic balance as long as that damage does not rise 
to the level of material damage outside the permit area. Therefore, 
adoption of a standard that does not allow any variation in water 
quality or quantity within a designated use category is not consistent 
with SMCRA.
---------------------------------------------------------------------------

    \163\ 30 U.S.C. 1265(b)(10).
    \164\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

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

    \165\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    In the underground mining context, one commenter opined that the 
rule should specifically mention that a regulatory authority cannot 
approve a permit application unless it determines that the proposed 
operation is not predicted to cause subsidence that would result in the 
dewatering of any perennial or intermittent stream. Our final rule 
defines material damage to the hydrologic balance outside the permit 
area to encompass an adverse impact from subsidence that would dewater 
or impair an intermittent or perennial stream to the extent that 
applicable Clean Water Act water quality standards are or would not be 
met or, if no designated use is assigned, the actual premining use 
would be precluded, or the Endangered Species Act violated. However, as 
discussed above, material damage to the hydrologic balance outside the 
permit area will not occur if the surface water or groundwater can be 
repaired so that it still attains applicable Clean Water Act water 
quality standards, or, if no designated use exists, its actual 
premining use. As discussed in more depth above, in Part IV.K., as long 
as these regulations are followed, subsidence damage from an 
underground mining operation that does not rise to the level of 
material damage to the hydrologic balance outside the permit area may 
be allowed.
    Similarly, several commenters suggested a single exceedance of a 
water quality standard should not be considered material damage to the 
hydrologic balance outside the permit area as it may not impact the 
stream hydrology to the degree that the designated uses are impaired. 
We agree with this comment. Similar to what we said in our discussion 
of temporary impacts, under our definition, a simple exceedance of a 
water quality standard would not necessarily constitute material damage 
to the hydrologic balance outside the permit area. If stream metrics 
indicate the stream is maintaining its applicable Clean Water Act water 
quality standards after exceedance events, then material damage to the 
hydrologic balance outside the permit area has not occurred. However, 
there could be situations where the SMCRA regulatory authority 
determines a single exceedance does constitute material damage to the 
hydrologic balance outside the permit area: if the stream metrics 
indicate that the exceedance would violate applicable Clean Water Act 
water quality standards or one of the other criteria listed in 
paragraphs (2) through (3). As we explained above, the

[[Page 93112]]

SMCRA regulatory authority should consult with the Clean Water Act 
authority to make this determination.
    It is also possible to cause material damage to the hydrologic 
balance outside the permit area while satisfying all effluent 
limitations established in the NPDES permit. SMCRA permits require in-
stream monitoring for parameters that are not limited or required to be 
monitored by the corresponding NPDES permits. Therefore, required 
monitoring under the SMCRA permit may indicate that a parameter that 
was not expected to have the potential to exceed a numeric or narrative 
water quality criteria in the receiving stream but does in fact exceed 
the established criteria. This situation could also occur if numerous 
individually compliant discharges cumulatively create a situation that 
violates a stream's applicable Clean Water Act water quality standards 
or would cause a violation of the Endangered Species Act.
    One commenter asserted that the definition of material damage to 
the hydrologic balance outside the permit area should apply to all 
streams and stream segments, and that the assessment of material damage 
to the hydrologic balance outside the permit area must not be 
restricted to only those streams for which the U.S. Army Corps of 
Engineers, during the Clean Water Act section 404 process, makes 
jurisdictional determinations. We agree that material damage to the 
hydrologic balance outside the permit area is not restricted to only 
those streams for which there is a Clean Water Act jurisdictional 
determination issued by the U.S. Army Corps of Engineers.
    In addition, final rule Sec.  780.19(c)(6)(i)(C) simplifies the 
process of delineating stream transitions by requiring that the SMCRA 
regulatory authority default to any jurisdictional stream 
determinations made by the U.S. Army Corps of Engineers to delineate 
stream transitions. If the U.S. Army Corps of Engineers has not 
determined the location of a transition point, the regulatory authority 
must set one. There are a number of available resources that may be 
helpful including the state Clean Water Act authority. The regulatory 
authority is encouraged to coordinate with the U.S. Army Corps of 
Engineers and other partners in identification of stream transition 
points.
    Several commenters suggested that linking the definition of 
material damage to the hydrologic balance outside the permit area with 
designated use could be problematic in situations where designated uses 
have not been identified or are not instructive, not accurate, and/or 
not attainable. The Clean Water Act provides a variety of policies to 
allow sufficient time to attain the designated uses, such as water 
quality standards variances, permit compliance schedules, or designated 
use changes. Several commenters noted that a use attainability analysis 
may be required to establish or change a designated use and that the 
use attainability analysis may be time-consuming and expensive. In such 
cases, the regional U.S. Environmental Protection Agency offices and 
relevant state Clean Water Act agencies can provide support and may 
suggest other approaches appropriate for the situation. As noted above, 
we are retaining the link to attainment of designated uses in the 
broader water quality standards approach; however, we are also making a 
clarifying change to address some of these concerns. As proposed, the 
definition accounts for situations where no designated use has been 
identified for a particular stream. In those situations, the proposed 
rule would have required that the ``existing use'' be maintained in a 
receiving stream. In the final rule, to prevent confusion with the 
Clean Water Act definition of existing uses and prevent abuses related 
to impaired streams, we have made revisions to further clarify this 
concept. Our intent is to maintain the actual use of surface water 
prior to the proposed mining operation. We are also concerned that the 
baseline standard for material damage to the hydrologic balance outside 
the permit area and/or stream restoration standards for an impaired 
stream, with or without a designated use, may be mistakenly considered 
as an existing, impaired condition rather than its actual or potential 
designated use. To remove any confusion and add clarity, we removed the 
phrase ``existing use'' from the definition and added ``actual use'' to 
signify uses that existed prior to submission of a coal mine permit 
application. Thus, paragraph (1) now specifically states that if no 
designated use has been established under the Clean Water Act, a mining 
operation cannot preclude attainment of any actual premining use of 
surface water outside the permit area.
    One commenter suggested we only consider ``existing uses'' and that 
we define ``existing uses'' as any uses in existence as of August 3, 
1977, which is the date SMCRA was enacted. We have not adopted this 
suggestion because we removed the phrase ``existing uses'' from the 
definition as it relates to surface waters and replaced it with ``any 
premining use.'' We did not replace it with ``any actual use as of the 
enactment of SMCRA'' because that change could raise potential 
conflicts with the Clean Water Act if the stream's designated uses have 
changed since the enactment of SMCRA.
    Another commenter suggested we revise the regulation to provide a 
hierarchy of stream use categories that would provide consistency in 
determining material damage to the hydrologic balance outside the 
permit area (i.e., first designated uses, then existing uses, and 
finally reasonably foreseeable uses). We agree that the regulation 
needs to specify the priority of stream use categories and have made 
changes as a result. As discussed above, we added clarifying language 
to paragraph (1) that specifies that adverse impacts that violate 
applicable Clean Water Act water quality standards and, if no water 
quality standards have been established, then the adverse impacts may 
not preclude any actual premining use. The proposed rule would have 
also required operators to ensure that ``reasonably foreseeable uses'' 
of surface water were maintained. However, many commenters raised 
concerns about the difficulty in interpreting or assigning reasonably 
foreseeable use to streams. We agree and have removed the language 
concerning reasonably foreseeable uses. The final rule no longer 
includes the term ``reasonably foreseeable uses'' in contexts other 
than protection of reasonably foreseeable surface land uses from the 
adverse impacts of subsidence. As explained in other areas of the 
preamble, we removed the term from the definition of material damage to 
the hydrologic balance outside the permit area for two reasons. First, 
the term appears in SMCRA only in section 516(b)(1), which requires 
that operators of underground mines adopt subsidence control measures 
to, among other things, maintain the value and reasonably foreseeable 
use of surface lands. Sections 717(b) and 720(a)(2) of SMCRA separately 
protect certain water uses. Second, numerous commenters opposed 
inclusion of the term ``reasonably foreseeable uses'' on the basis that 
it is too subjective, difficult to determine, and open to widely 
varying interpretations, which could result in inconsistent application 
throughout the coalfields.
    Proposed paragraph (a) defined material damage to the hydrologic 
balance outside the permit area as any adverse impact that would 
preclude any reasonably foreseeable use of surface water or groundwater 
outside the permit area. Several commenters objected to the use of the 
term ``reasonably foreseeable uses''. Several commenters suggested 
using alternate terms such as

[[Page 93113]]

``protected use,'' ``existing uses'', and ``future probable use''. As 
explained above, we deleted references to ``reasonably foreseeable 
uses'' in paragraph (1) of the final definition and elsewhere in our 
rules. The term was confusing and could have led to possibly 
conflicting interpretations.
    Another commenter suggested that linking material damage to the 
hydrologic balance outside the permit area with the concept of 
reasonably foreseeable uses will create conflicts between the Clean 
Water Act and SMCRA agencies about what is a foreseeable use. For the 
reasons explained above, we did not accept this comment.
    A commenter expressed concern about how the Clean Water Act concept 
of anti-degradation would relate to variability in a stream designated 
use caused by SMCRA mining impacts. We clarified the definition by 
directly linking to the concept of Clean Water Act water quality 
standards, which includes provisions for impaired streams and 
antidegradation. To establish material damage in situations involving 
impaired streams, the SMCRA regulatory authority should consult with 
the Clean Water Act authority to ensure a thorough understanding of the 
water quality standards applicable to the stream and specific situation 
under review.
    In the proposed rule, groundwater was included with paragraph (a). 
One commenter specifically suggested we define material damage to the 
hydrologic balance outside the permit area so that it applies to 
groundwater. Although groundwater was included in the proposed 
definition, we have decided to include paragraph (2) in the final rule 
to specifically state that operators must maintain premining uses 
associated with groundwater. This change clarifies that material damage 
to the hydrologic balance outside the permit area protects groundwater 
resources that may not have uses assigned to them. In particular, this 
paragraph states that ``material damage to the hydrologic balance 
outside the permit area'' would include those adverse impacts that 
preclude attainment of any premining use of groundwater outside the 
permit area. In addition, paragraphs (1) and (2) of the definition 
would preclude the discharge of contaminated groundwater into a 
receiving stream if that discharge caused the stream to not satisfy its 
applicable Clean Water Act water quality standards. Thus, groundwater 
protections are included in this final definition.
    A commenter suggested we revise the definition to ensure it 
adequately protects listed species or designated critical habitats. The 
commenter further elaborated that the definition should not be linked 
to the Endangered Species Act's jeopardy analysis. We agree that the 
definition of material damage to the hydrologic balance outside the 
permit area should adequately protect listed species and designated 
critical habitat, whether aquatic or terrestrial. Paragraph (b) of the 
proposed rule was included to prevent impacts to threatened or 
endangered species or adverse effects on designated critical habitat 
outside the permit area in violation of the Endangered Species Act of 
1973, 16 U.S.C. 1531 et seq. As proposed, it did not specifically link 
this definition with a jeopardy analysis under the Endangered Species 
Act, and we are not doing so in the final rule. In the final rule, this 
paragraph has been redesignated as (3) and simplified to bring 
attention to the prohibitions found in the Endangered Species Act of 
1973, which also includes the unauthorized ``taking'' of listed species 
(a criminal prohibition). This provision, in conjunction with the other 
provisions of this final rule related to fish and wildlife resources 
discussed in the preamble at Sec. Sec.  780.16(b) and 783.20, should 
provide adequate protections for threatened and endangered species, 
aquatic and/or terrestrial, in accordance with the Endangered Species 
Act.
    One commenter, citing section 702,\166\ of SMCRA, requested that 
the definition of material damage to the hydrologic balance outside the 
permit area be expanded to encompass any violations of other applicable 
statutes or regulations in addition to those stated in the proposed 
rule text. The term ``material damage to the hydrologic balance outside 
the permit area'' is a term unique to SMCRA and there is no need to 
refer to other statutes or regulations within this definition. Section 
702 of SMCRA \167\ will continue to fully apply independent of this 
definition. We singled out the Endangered Species Act in paragraph (3) 
because the statutory language is unique in its prohibitions against 
jeopardizing the continued existence of species and adverse changes to 
their designated critical habitat (if in the context of Section 7 of 
the Endangered Species Act), and its prohibition against unauthorized 
``taking'' of listed species generally. In summary, we agree that SMCRA 
operations cannot materially damage streams outside the permit area 
under any circumstance; other statutes notwithstanding.
---------------------------------------------------------------------------

    \166\ Id.
    \167\ Id.
---------------------------------------------------------------------------

    Many commenters raised concerns with a statement in the preamble to 
the proposed rule that stated: A ``SMCRA regulatory authority may need 
to establish numerical material damage criteria for parameters of 
concern for which there are no numerical water quality standards or 
water quality criteria under the Clean Water Act.'' \168\ For support, 
these commenters also cited section 702 of SMCRA \169\ because, to 
their understanding of the regulation, the development of numeric 
standards to determine material damage to the hydrologic balance 
outside the permit area would create a conflict with the Clean Water 
Act. In response, we note that nothing in the definition requires the 
creation of numeric standards. In the proposed rule, the requirement 
for numeric standards was included in Sec.  773.15(e)(3), which stated 
that a regulatory authority needed to include a permit condition 
specifying criteria for material damage to the hydrologic balance 
outside the permit area on a site-specific basis, expressed in 
numerical terms for each parameter of concern. As discussed in the 
preamble to final Sec.  773.15(e)(3), we are not adopting the proposed 
requirement for numeric criteria unless numeric water quality criteria 
exist.
---------------------------------------------------------------------------

    \168\ 80 FR 44436, 44475 (Jul. 27, 2015).
    \169\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

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

[[Page 93114]]

is not assigned. For these reasons we are retaining the term biological 
condition within the definition of material damage to the hydrologic 
balance.
    Many commenters speculated as to how coal mining impacts to 
receiving streams would be assessed in light of the proposed 
definition. Several commenters questioned the use of the phrase 
``adverse impacts'' and were concerned that the phrase could be 
interpreted to mean any impact to a receiving stream. We disagree with 
this interpretation. The definition of ``material damage to the 
hydrologic balance outside the permit area'' needs to be read, 
understood, and applied in its entirety. As discussed above, an adverse 
impact does not necessarily constitute material damage to the 
hydrologic balance outside the permit area. The definition includes 
only those adverse impacts that, either individually or cumulatively, 
would preclude a receiving stream from attaining its applicable Clean 
Water Act water quality standards, or if no designated use exists, the 
premining use.
    Several commenters proposed their own definitions of material 
damage to the hydrologic balance outside the permit area. Most of these 
suggested definitions tied material damage to the hydrologic balance 
outside the permit area to permanent impacts after mitigation attempts 
have failed. We decline to adopt the term ``permanent'' because impacts 
can materially damage the hydrologic balance outside the permit area 
yet not be considered permanent. There are many examples over the last 
30 years of impacts that were not permanent but that clearly rose to 
the level of material damage to the hydrologic balance outside the 
permit area. Some examples include the Martin County, Kentucky slurry 
breach, impacts to Tug Fork River that killed all aquatic life in 
Coldwater Fork and Wolf Creeks, and a mine release of very high 
conductivity water released from the Blacksville No. 2 Mine into 
Dunkard Fork in Greene County, Pennsylvania that created a golden algae 
bloom that caused a massive fish kill in 40 miles of stream. These 
events have all been mitigated and would not be considered permanent 
even though they clearly constituted material damage to the hydrologic 
balance outside the permit area which should have been prevented. Thus, 
singular, nonpermanent events can rise to the magnitude of material 
damage to the hydrologic balance outside the permit area.
    A commenter recommended that the rule specify that a SMCRA 
regulatory authority should not consider noncompliant discharges other 
than those that rise to the level of precluding designated or existing 
uses because those noncompliant discharges, according to the commenter, 
remain solely within the purview of the Clean Water Act authority. We 
disagree. SMCRA gives jurisdictional authority to its regulatory 
authorities over aspects of water quality resulting from coal mining 
\170\ and requires the evaluation of water quality from SMCRA sites and 
modification of the SMCRA permit any time a SMCRA site is causing, or 
leading to, material damage to the hydrologic balance outside the 
permit area.
---------------------------------------------------------------------------

    \170\ See, e.g., 30 U.S.C. 1260(b)(3) and 1265(b)(10).
---------------------------------------------------------------------------

    Several commenters expressed concern that extraneous, non-mining 
related impacts, including natural conditions, would be included in 
assessment of material damage to the hydrologic balance outside the 
permit area and urged us to limit the scope of assessment to only those 
impacts directly attributable to the surface coal mining and 
reclamation operation. We agree with the commenters that many surface 
coal mining and reclamation operations are located in areas with 
multiple land uses and that water quality can be impacted from these 
other non-coal mining sources and natural conditions. The regulations 
require permit applicants to acquire water samples to help assess the 
baseline water quality in all streams overlying and adjacent to the 
proposed operation and for groundwater. Impacts to the water from other 
existing upstream land uses, including non-coal mining sources, will be 
reflected in the baseline data. The baseline data will form the basis 
of the cumulative hydrologic impact assessment developed by the 
regulatory authority. That assessment evaluates the capacity of the 
receiving stream to assimilate the expected water quality emanating 
from the proposed mining operation, and from all other mining-related 
activities, known and anticipated, within an area known as the 
cumulative impact area. The cumulative hydrologic impact assessment, 
therefore, provides the regulatory authority with sufficient 
information to assess whether the proposed mining operation, in 
combination with other existing and reasonably anticipated mining 
activities, will materially damage the hydrologic balance outside the 
permit area. For example, if a stream's assimilative capacity for a 
certain parameter is already consumed by other activities or if the 
proposed operation would exacerbate natural conditions to the point 
where the stream might fail to attain its applicable Clean Water Act 
water quality standards, the regulatory authority would either need to 
modify the permit so that material damage to the hydrologic balance 
outside the permit area does not occur or disapprove the permit.
    Several commenters suggested mining operations should not be 
required to improve a stream's biological condition beyond the 
premining condition. We do not agree with this assertion for previously 
impaired streams. We agree that if a stream is attaining its applicable 
Clean Water Act water quality standards, there is no requirement under 
SMCRA for the operation to implement measures, for example, to attain 
higher designated use categories. That is not the case for mining 
operations affecting previously degraded streams. Section 515(b)(24) of 
SMCRA specifically requires the enhancement of fish, wildlife, and 
related environmental values where practicable and section 508(a)(9) of 
SMCRA \171\ requires steps be taken to comply with all air and water 
quality laws. Returning a degraded stream to a degraded state neither 
enhances fish, wildlife, and related environmental values nor takes 
steps to comply with the Clean Water Act's goal of maintaining a 
stream's designated use or instituting measures to help it attain its 
water quality standards.\172\ Thus, the Clean Water Act regulatory 
authorities must develop water quality standards that help streams 
achieve their designated uses. Allowing a mining operation to return a 
stream to a degraded state without some form of enhancement would, 
thus, conflict with the Clean Water Act section 303(d). As a result, in 
instances where a stream is not meeting its designated use, it is vital 
that the regulatory authority work closely with the Clean Water Act 
authority to determine the level of impairment, evaluate the potential 
impacts from the proposed operation, and thoroughly assess the 
anticipated effects of the proposed operation over the anticipated 
life-of-the-mine. This coordination is critical because the state Clean 
Water Act authorities must implement measures to ensure that all 
streams achieve their assigned designated use(s) in conformity with 
section 303(d) of the Clean Water Act.\173\
---------------------------------------------------------------------------

    \171\ 30 U.S.C. 1258(a)(9).
    \172\ 33 U.S.C. 1251 et seq.
    \173\ 33 U.S.C. 1313(d).
---------------------------------------------------------------------------

    One commenter also suggested the rule should grant discretion to 
the regulatory authority when applying bioassessment standards for 
material damage to the hydrologic balance

[[Page 93115]]

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

    \174\ 80 FR 44436, 44475 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

    \175\ 42 U.S.C. 6201 et seq.
    \176\ 30 U.S.C. 1258(a)(13)(A) and (C) (emphasis added).
    \177\ 30 U.S.C. 1265(b)(10) (emphasis added).
---------------------------------------------------------------------------

    Moreover, our definition does not conflict with the Energy Policy 
Act. Section 2504 of Energy Policy Act requires operators to repair or 
compensate for subsidence impacts they cause to surface structures and 
requires replacement of water supplies adversely impacted by coal mine 
subsidence. The water replacement provisions of the Energy Policy Act 
are incorporated into our regulations at section 817.40 and are still 
in effect. These regulations provide additional protections for 
individual well owners. A change to an individual well that would 
trigger the replacement provision of section 817.40 would not 
necessarily constitute material damage to the hydrologic balance 
outside the permit area unless that damage was the result of wholesale 
adverse changes to an aquifer that the regulatory authority determines 
rose to the level of material damage to the hydrologic balance outside 
the permit area.
    The commenter further suggested that inclusion of the term 
biological condition in the introductory text of the definition would 
result in a ``massive'' amount of new information for the regulatory 
agency to review. We agree that new information will be received on 
biological condition, but this information is not anticipated to be 
``massive'' or otherwise overburden the regulatory authority. 
Experience in the Tennessee federal program indicates collection and 
submission of permit specific biological condition information does not 
substantially increase the volume of information submitted for a coal 
mine permit application. Biological condition is a critical component 
of determining the impact from the mining operation not only on water 
quality and quantity of the receiving stream but on impact to the 
aquatic environment. This information needs to be evaluated to ensure 
mining and reclamation operations do not cause material damage to the 
hydrologic balance outside the permit area.
Mountaintop Removal Mining
    Some commenters expressed concern that the proposed definition of 
``mountaintop removal mining'' conflicts with section 515(c)(2) of 
SMCRA \178\ and is a significant change from the existing regulations 
that could cause confusion for regulatory authorities and the regulated 
community. Specifically, one commenter alleged that the change from 
``removing substantially all overburden off the bench'' to ``removing 
substantially all overburden above the coal seam'' and the 
clarification that the overburden be used to create the postmining 
contours would be a source of misunderstanding. For the reasons 
discussed below, we disagree and are adopting the definition as 
proposed.
---------------------------------------------------------------------------

    \178\ 30 U.S.C. 1265(c)(2).
---------------------------------------------------------------------------

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

[[Page 93116]]

the commenters, adding ``above the coal seam'' and ``using that 
material to create'' to the definition of mountaintop removal mining 
does not create a conflict with the language of SMCRA and does not 
create confusion. No change has been made to the proposed definition in 
our final rule.
---------------------------------------------------------------------------

    \179\ 80 FR 44436, 44476 (Jul. 27, 2015).
    \180\ 30 U.S.C. 1265(c)(2).
    \181\ 30 U.S.C. 1265(c)(4)(E).
---------------------------------------------------------------------------

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

    \182\ 80 FR 44436, 44491 (Jul. 27, 2015).
    \183\ Exec. Order No. 13112 of February 3, 1999, 64 FR 6184 
(Feb. 8, 1999).
---------------------------------------------------------------------------

    In response to the commenters that suggested that we allow the 
regulatory authority latitude to define the terms ``invasive species'' 
and ``native species'', we do not agree because it is important to have 
uniform definitions of these terms and the definitions, adapted from 
the 1999 and 2016 Executive Orders in a manner that focuses on the 
specific goals of SMCRA, are appropriate.
Occupied Residential Dwelling and Structures Related Thereto
    We received no comments on our proposed revisions to this 
definition, which we are adopting as proposed.
Ordinary High Water Mark
    One commenter stated that we should use the ordinary high water 
mark (OHWM) instead of the bankfull elevation when measuring 
distances from streambanks because the OHWM is both more common for 
that purpose and more easily determined. We adopted the commenter's 
suggestion, which meant that we needed a definition of OHWM. To 
promote consistency between SMCRA and the Clean Water Act, we 
settled on the definition in regulation 33 CFR 328.3(e).

    We made only one change--replacing ``shore'' with ``bank'' in our 
definition because ``bank'' is more commonly understood and used in the 
context of the streams affected by coal mining.
    Measuring from the OHWM as opposed to the bankfull elevation, which 
is the point at which the streambanks can hold no more water before 
spilling flow onto the floodplain, could result in a slightly narrower 
buffer zone or streamside vegetated corridor, but, in most cases, the 
difference would be minimal.
Parameters of Concern
    We proposed to add the definition of ``parameters of concern'' 
because we used the term extensively in the proposed rule. Under the 
proposed definition, ``parameters of concern'' consists of those 
chemical or physical characteristics or properties of surface water or 
groundwater that could be altered by mining activities in a manner that 
would adversely impact the quality of surface water or groundwater or 
the biological condition of a stream. We continue to use the definition 
of ``parameters of concern'' within the final rule and adopt it as 
proposed, with one exception. Within the definition, we have replaced 
``biological condition of a stream'' with ``including adverse impacts 
on aquatic life.''
    One commenter expressed concern that the definition of ``biological 
condition'' coupled with the definition of ``parameters of concern'' 
would impose new and burdensome requirements. The definition of 
``parameters of concern'' was used to clarify that these parameters may 
be of concern because of potential impacts on aquatic life. Including 
``biological condition'' in the context of this definition does not, in 
and of itself, require additional biological data beyond the 
requirements expressly defined elsewhere in the regulation; however, we 
agree that the use of term did not provide sufficient clarity and have 
replaced ``biological condition of a stream'' with ``including adverse 
impacts on aquatic life''.
    We also received a variety of comments on the definition of 
``parameters of concern.'' A few commenters asked us to delete this 
proposed definition altogether. These commenters alleged that the 
definition conflicts with the Clean Water Act and exceeds our 
authority. We disagree. The Clean Water Act established a national goal 
to restore or maintain the chemical, physical, and biological integrity 
of the Nation's water.\184\ The final rule definition, like the 
proposed rule definition, complements these Clean Water Act 
requirements. None of the elements of this final rule affect a mine 
operator's responsibility to comply with effluent limitations or other 
requirements of the Clean Water Act. The requirements of the Clean 
Water Act have independent force and effect regardless of the terms of 
the SMCRA permit. The independent effect of the Clean Water Act is 
recognized in section 702(a) of SMCRA, which provides that--
---------------------------------------------------------------------------

    \184\ 33 U.S.C. 1251(a).

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

    \185\ 30 U.S.C. 1292(a).

    Another commenter requested the definition be revised to state that 
the ``parameters of concern'' will be determined by the approved 
regulatory authority. While we agree that the regulatory authority 
should identify local ``parameters of concern,'' if applicable, and 
include them in the required baseline monitoring data, we are not 
modifying the definition. Instead, we have clarified Sec. Sec.  780.19, 
784.19, and 780.23 of the rule to state that groundwater and surface 
water quality descriptions include all ``parameters of concern'' as 
identified by the regulatory authority. With these clarifications, any 
``parameters of concern'' identified by the regulatory authority will 
more accurately reflect those constituents that could potentially 
impact water resources during coal mining and reclamation activities in 
their specific region of the country.
    One commenter requested we adopt the term ``pollutants'' instead of 
``parameters of concern.'' We disagree because the term ``pollutant'' 
is narrower than ``parameters of concern.'' We intend the term 
``parameters of concern'' to cover all of the chemical or physical 
characteristics that are currently present in surface water or 
groundwater, or that could be released as a result of coal mining and 
reclamation activities or from the natural environment during such 
activities, and that could be present in sufficient concentrations to 
result in material damage to the hydrologic balance outside the permit 
area. In addition, using ``parameters of concern'' instead of 
``pollutant'' in our regulations avoids confusion with the term 
``pollutant'' as defined in section 502(6) of the Clean Water Act.
    In consideration of these comments, we are not making any 
additional modifications to the final rule. As

[[Page 93117]]

discussed above, the final rule will be adopted as proposed with the 
exception of the removal of the reference to ``biological condition of 
a stream.''
Perennial Stream
    As discussed in the preamble to the proposed rule,\186\ we proposed 
to redefine ``perennial stream'' in a manner that is substantively 
identical to the manner in which the U.S. Army Corps of Engineers 
defines that term in Part F of the 2012 nationwide permits \187\ under 
section 404 of the Clean Water Act.\188\ We are adopting the proposed 
definition with a few changes. First, in response to commenters 
requesting that we include runoff from snowmelt to our definition, 
``runoff from rainfall events and snowmelt'' is now included within the 
definition of ``perennial stream.'' This is consistent with the 
ephemeral and intermittent stream definitions and discussed in more 
detail within those sections of this preamble. Second, we are adding 
the statement that ``perennial streams include only those conveyances 
with channels that display both a bed-and-bank configuration and an 
ordinary high water mark.'' This addition is also consistent with the 
ephemeral and intermittent stream definitions discussed herein.
---------------------------------------------------------------------------

    \186\ 80 FR 44436, 44476-44477 (Jul. 27, 2015).
    \187\ 77 FR 10184, 10288 (Feb. 21, 2012).
    \188\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    In our revised definition, ``perennial stream'' means a stream or 
part of a stream that has flowing water year-round during a typical 
year. One commenter stated that the term ``typical year'' is too vague. 
Another commenter requested clarification on the length of time meant 
by ``most of the year.'' Our final definition of ``perennial stream'' 
is substantively identical to the corresponding U.S. Army Corps of 
Engineers' definition. Both definitions recognize that perennial 
streams or segments of those streams may cease flowing during periods 
of sustained, below-normal precipitation. Thus, a cessation in flow 
during those periods would not result in the reclassification of the 
stream as intermittent. To the extent a SMCRA regulatory authority 
needs additional clarification of the terms ``typical year'' and ``most 
of the year,'' we recommend that they coordinate with the Clean Water 
Act authority.
    One commenter asserted that the regulations pertaining to a 
``perennial stream'' should allow regulatory authorities to adopt and 
apply regulations that could better protect perennial streams. 
Similarly, another commenter requested the addition of language 
recognizing that state protections for all stream types may exceed the 
U.S. Army Corps of Engineers' requirements and compel regulatory 
authorities to adopt more stringent protections within the permit 
conditions. States have the ability to adopt more stringent rules when 
they are revising their regulations governing surface coal mines and 
underground mines to satisfy the requirements set forth in the final 
rule. States can adopt more stringent rules that afford greater 
protections to ephemeral, intermittent, and perennial streams. Because 
states already have the authority under section 505(b) of SMCRA \189\ 
to provide for more stringent land use and environmental controls and 
regulations of surface coal mining and reclamation operations than the 
provisions of SMCRA, it is not necessary to add additional language to 
the final rule.
---------------------------------------------------------------------------

    \189\ 30 U.S.C. 1255.
---------------------------------------------------------------------------

Premining
    In response to requests from several commenters, we are adding a 
definition of ``premining'' to Sec.  701.5 of the final rule. The 
definition provides that ``premining'' refers to the conditions and 
features that exist on a site at the time of application for a permit 
to conduct surface coal mining operations. Some of our regulations 
refer to conditions or features in existence before any mining occurred 
on the site, not the conditions or features in existence at the time of 
preparation of the permit application. In those instances, we typically 
use the terms ``prior to any mining'' or ``before any mining'' instead 
of ``premining.''
Reclamation
    As we explained in the preamble, we proposed to revise the 
definition of ``reclamation'' to fully implement SMCRA by expanding the 
definition to include the entire disturbed area, to encompass all 
actions taken to restore land and water to the conditions required by 
SMCRA, and to clarify that the reclaimed land must be capable of 
supporting the uses it was capable of supporting prior to any mining 
or, subject to certain restrictions, higher or better uses.\190\
---------------------------------------------------------------------------

    \190\ 80 FR 44436, 44477 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

[[Page 93118]]

topography, vegetative cover, and the hydrology of the proposed permit 
area.
---------------------------------------------------------------------------

    \191\ 30 U.S.C. 1265(b)(2).
    \192\ capable. 2016. In Merriam-Webster.com. Retrieved Nov.1, 
2016, from http://www.merriam-webster.com/dictionary/capable. Oxford 
University Press.
    \193\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    One commenter urged us to include within the definition of 
``reclamation'' a reference to the restoration of streams damaged by 
subsidence. We are not incorporating this recommendation into the final 
rule because we have specifically addressed this issue within Sec.  
784.30, relating to preparation of a ``subsidence control plan and what 
information must that plan include'' and Sec.  817.121, relating to 
what measures must be taken to ``prevent, control, or correct damage 
resulting from subsidence'' within the final rule and discussed more 
thoroughly within those sections.
Reclamation Plan
    Several commenters combined their comments on this definition 
within their discussion of the definition of ``reclamation.'' 
Therefore, we addressed the comments regarding ``reclamation plan'' in 
the same manner as explained in the definition of ``reclamation.'' We 
received no additional comments on our proposed revisions to this 
definition; therefore, we are adopting the definition as proposed.
Renewable Resource Lands
    We proposed to define ``renewable resource lands'' as ``aquifers, 
aquifer recharge areas, recharge areas for other subsurface and surface 
water, areas of agricultural or silvicultural production of food and 
fiber, and grazing lands.'' The only substantive difference from the 
previous definition, which we adopted on March 13, 1979, was the 
addition of recharge areas for surface water.
    One commenter expressed concern that the inclusion of recharge 
areas for surface water could have the effect of classifying all lands 
within watersheds that drain to a stream or reservoir used for a public 
drinking water supply as renewable resource lands and thus open the 
door to challenges seeking to ban all coal mining in those watersheds. 
According to the commenter, this outcome would be inconsistent with the 
statement in the DRIA that the proposed rule would not strand or 
sterilize any reserves; i.e., that the proposed rule would not make any 
coal reserves that are technically and economically feasible to mine 
under baseline conditions unavailable for extraction. The commenter 
further opined that, if we decide to proceed with adoption of the 
revised definition, we should conduct a detailed socioeconomic impact 
analysis to fully assess the repercussions of expanding the scope of 
the definition.
    We do not agree with the commenter that the outcome described above 
represents a change from the status quo. The outcome described by the 
commenter is consistent with the baseline conditions upon which the 
DRIA was based. Section 522(a)(3)(C) of SMCRA \194\ provides that a 
regulatory authority may, pursuant to a petition, designate a surface 
area as unsuitable for certain types of surface coal mining operations 
if those operations will ``affect renewable resource lands in which 
such operations could result in a substantial loss or reduction of 
long-range productivity of water supply or of food or fiber products, 
and such lands to include aquifers and aquifer recharge areas.'' This 
language clearly includes watersheds of reservoirs and natural water 
bodies that function as water supplies. We have always interpreted the 
definition of ``renewable resource lands'' as including those 
watersheds.\195\ Therefore, there is no need for a socioeconomic 
analysis of the proposed definition because the revisions are intended 
to reconcile the definition to both the underlying statutory provision 
and historical practice.
---------------------------------------------------------------------------

    \194\ 30 U.S.C. 1272(a)(3)(C).
    \195\ See 48 FR 41327 (Sept. 14, 1983) (``these types of lands 
[watershed lands] may, on a case-by-case basis, be determined to be 
renewable resource lands'').
---------------------------------------------------------------------------

    However, we agree that the scope of the proposed definition is too 
broad in that it would include the watersheds of all surface waters, 
not just surface water bodies that serve as water supplies. Therefore, 
we decided not to adopt the proposed revision to the definition to the 
extent that it would include ``recharge areas for other subsurface and 
surface water.'' Instead, we revised the definition to include 
``recharge areas for other subsurface water,'' which is consistent with 
the previous definition's inclusion of areas for the recharge of other 
underground waters. We also revised the definition to include ``surface 
water bodies that function as a water supply.'' The latter revision 
more closely tracks the language of section 522(a)(3)(C) of SMCRA.
    One commenter supported the proposed modification of the definition 
to include recharge areas for surface waters. The commenter recommended 
that we revise the proposed definition to explicitly identify examples 
of surface waters by adding ``(such as lakes, ponds, and wetlands)'' 
after ``surface water.'' We decline to adopt this recommendation 
because our revision of the definition to include ``watersheds for 
surface water bodies that function as a water supply'' provides 
sufficient specificity without being under inclusive or over inclusive.
    A commenter noted that the preamble to the proposed definition 
stated that the definition would include recharge areas for wetlands. 
See 80 FR 44436, 44588 (Jul. 27, 2015). The commenter further noted 
that the definition itself does not mention wetlands, which means that, 
in practice, recharge areas for wetlands are unlikely to be protected 
as renewable resource lands. The commenter recommended that we revise 
the definition to explicitly include recharge areas for wetlands. We 
acknowledge the inconsistency cited by the commenter. However, nothing 
in section 522(a)(3)(C) of SMCRA mentions wetlands as being renewable 
resource lands. Therefore, we decline to revise the definition as 
recommended. Wetlands will be considered renewable resource lands only 
to the extent they are integral features of watersheds of surface water 
bodies that function as water supplies.
Replacement of Water Supply
    We received no comments on our proposed revisions to this 
definition, which we are adopting as proposed.
Temporary Diversion
    One commenter expressed concern that the proposed definition of 
``temporary diversion'' includes no specific time for ``temporary.'' 
The commenter noted that, under the proposed definition, a temporary 
diversion could remain in place until the end of mining and reclamation 
activities, which may be measured in decades, and therefore is not 
consistent with the common usage of the word ``temporary.'' The 
commenter recommended that, with respect to stream diversions, the word 
``temporary'' be subdivided into a ``short-term temporary'' period no 
more than two years in duration and a ``long-term temporary'' period 
two years or longer in duration that can extend until the end of mining 
and reclamation activities.
    The commenter correctly points out that proposed Sec. Sec.  780.28 
and 784.28 would establish different standards for a temporary stream 
channel diversion in place for more than two years as compared to one 
in place for less than two years. However, we do not agree that the 
revision suggested by the commenter is necessary or would improve 
clarity. We define a ``temporary diversion'' as a ``channel constructed 
to convey streamflow or overland flow'' and specify that the term 
``includes only those channels not approved by the

[[Page 93119]]

regulatory authority to remain after reclamation as part of the 
approved postmining land use.'' Thus, a temporary diversion is in place 
only until its intended purpose has been fulfilled, after which time it 
is removed. A temporary diversion may be in place through the 
reclamation phase and bond release, which, as the commenter notes, 
could be decades. While the term ``permanent diversion'' is not 
specifically defined, it includes anything that is not a ``temporary 
diversion.'' We do not define the term ``temporary'' relative to the 
time a diversion is in place, but rather according to whether it will 
be removed at some point in the reclamation process.
    Relative to the commenter's assertion that the definition should be 
clarified, we did make changes to Sec.  816.43 in the final rule to 
establish three categories of diversions (diversion ditches, stream 
diversions, and conveyances or channels within the disturbed area) and 
we specify the requirements that apply to each category.
    Another commenter stated that the word ``conveyance'' in the 
definition of a temporary diversion should be removed or, at a minimum, 
modified so that if the conveyances fail, they will be limited to 
discharges ``out of the pit.'' The commenter further asserted that ``in 
pit'' conveyance structures that fail do not pose a risk to the public 
or the environment. Therefore, according to the commenter, they should 
not be regulated under SMCRA or the Clean Water Act. We did not alter 
the final rule in response to this comment because many of these 
conveyances may be quite lengthy, often thousands of feet in length, 
and a failure along such a conveyance may result in water flowing away 
for the pit, not always into the pit as suggested by the commenter, 
which may potentially result in discharges off site. We did however add 
language to the final definition to include channels that convey flows 
to a siltation structure or other treatment facility. Thus, diversions 
can be constructed within the permit area to convey water to a 
siltation structure or, as the commenter suggested, to the mine pit.
Waters of the United States
    We proposed to define the term ``waters of the United States'' in 
the same manner it is defined within 40 CFR 230.3(s), which is part of 
the section 404(b)(1) guidelines under the Clean Water Act.\196\ We 
received comments both supporting and opposing our proposed addition of 
a definition of this term. After evaluating the comments, we agree that 
adoption of the definition is unnecessary for implementation of the 
final rule. In response to comments, we have revised the final rule by 
replacing the term ``waters of the United States'' with ``waters 
subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 1251 et 
seq.''
---------------------------------------------------------------------------

    \196\ 80 FR 44436, 44478 (Jul. 27, 2015).
---------------------------------------------------------------------------

Wetlands
    We did not propose to add a definition of ``wetlands.'' However, a 
few commenters requested that we define ``wetlands'' or, preferably, 
clarify that the term ``wetlands'' as used in our final rule 
corresponds to the existing definition within the regulations 
promulgated pursuant to the Clean Water Act. We find that a unique 
definition in the final rule is unnecessary. Instead, we will defer to 
the definition of ``wetlands'' as promulgated by the U.S. Army Corps of 
Engineers and U.S. Environmental Protection Agency. Additionally, these 
commenters stated that we should specify in the final rule that 
wetlands must be delineated using field techniques according to the 
most recent requirements from the Clean Water Act regulatory authority. 
One commenter suggested that the U.S. Army Corps of Engineers should 
delineate, document, map, and field confirm wetlands. This commenter 
also suggested that we adopt a definition of ``wetlands'' that includes 
an explanation that ``wetlands are one subset of the Waters of the 
United States and are subject to the requirements of the Clean Water 
Act, just as are streams and other regulated bodies.''
    We decline to adopt the commenters' recommendations. We are not 
aware of any instances in which the lack of a definition of 
``wetlands'' under SMCRA has created a problem. For regulatory 
purposes, the term ``wetlands'' is commonly understood to mean wetlands 
as determined using the diagnostic techniques in the U.S. Army Corps of 
Engineers Wetlands Delineation Manual, Technical Report Y-87-1, as 
published in January 1987 and subsequently modified. Paragraph 26 in 
Part II of that manual summarizes the fundamental characteristics of 
wetlands. Section 702(a) of SMCRA \197\ provides that ``[n]othing in 
this Act shall be construed as superseding, amending, modifying, or 
repealing'' the Clean Water Act or ``any rule or regulation promulgated 
thereunder.'' Therefore, SMCRA regulatory authorities must define and 
identify wetlands in a manner that is no less inclusive than any 
definition used under the Clean Water Act. However, section 505(b) of 
SMCRA \198\ specifies that any state law or regulation that provides 
for ``more stringent land use and environmental controls of surface 
coal mining and reclamation operations than do the provisions of this 
Act or any regulation issued pursuant thereto shall not be construed to 
be inconsistent with this Act.'' Therefore, SMCRA regulatory 
authorities may use wetlands definitions and delineation techniques 
that differ from those in the U.S. Army Corps of Engineers' Manual so 
long as those definitions and techniques do not exclude any areas that 
qualify as wetlands under the Wetlands Delineation Manual. With respect 
to the comment that the rule should require that the U.S. Army Corps of 
Engineers delineate, document, map, and field confirm wetlands, we do 
not have the authority under SMCRA to impose obligations on the U.S. 
Army Corps of Engineers. We encourage the SMCRA regulatory authority to 
coordinate review of permit applications with the U.S. Army Corps of 
Engineers, but we find no reason to expressly restrict wetland 
delineation to the U.S. Army Corps of Engineers as part of this final 
rule.
---------------------------------------------------------------------------

    \197\ 30 U.S.C. 1292(a).
    \198\ 30 U.S.C. 1255(b).
---------------------------------------------------------------------------

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

    Our proposed rule did not include regulatory text clarifying how 
the rule would affect existing permits and permit applications. A 
number of commenters emphasized that the final rule needed to include 
such a provision, both for clarity and to ensure preservation of the 
rights of existing permit holders. Some commenters noted that many of 
the requirements of the stream protection rule, such as expanded 
baseline data collection and permit application requirements and 
related performance standards and bond release requirements, would be 
impossible for existing operations to meet because the site has already 
been disturbed. According to the commenters, the final rule should 
apply only to new operations or to additions to existing operations, 
not to existing permitted lands and reclaimed areas. Others emphasized 
the general legal principle that regulations should be prospective in 
nature, not retroactive.
    One commenter observed that it is not clear which parts of the 
proposed rule would apply to existing permits. The commenter noted that 
the DRIA stated that, for purposes of that analysis, Sec. Sec.  774.15, 
800.18, 800.40, 816.35,

[[Page 93120]]

816.36, 816.41, 817.35, 817.36, and 817.41 would be considered as 
applying to existing permits. The commenter further stated that the 
final rule should include interim requirements or a schedule for 
existing permits and permit applications under review to comply with 
the final rule.
    We agree that, in general, the final rule that we are publishing 
today should be prospective, not retroactive. Therefore, we have added 
Sec.  701.16 to clarify the applicability of the rule. Section 701.16 
applies only to the revisions to Parts 701 through 827, which paragraph 
(a) characterizes as the ``stream protection rule.'' Section 701.16 
does not affect the revisions to our termination of jurisdiction rules 
in Sec.  700.11(d) because those revisions merely codify longstanding 
court decisions and legal representations concerning the applicability 
of the rules governing the termination and reassertion of jurisdiction. 
Paragraphs (a)(1) through (5) of Sec.  701.16 establish minimum 
applicability standards for those stream protection rule provisions 
that do not contain their own specific applicability provisions.
    Section 701.16 supersedes the statement in the DRIA that identifies 
Sec. Sec.  774.15, 800.18, 800.40, 816.35, 816.36, 816.41, 817.35, 
817.36, and 817.41 as applying to existing permits. Under Sec.  701.16, 
the stream protection rule would not apply to existing permits unless 
the permittee applies for certain types of permit revisions. Therefore, 
there is no need for this rule to establish interim requirements or a 
compliance schedule for existing permits. Of course, it would not be 
inconsistent with SMCRA for a regulatory authority to, in its 
discretion, apply some or all provisions of the stream protection rule 
to part or all of a permit or application not listed in paragraph (a) 
of this section.
    Paragraph (a)(1) of Sec.  701.16 provides that the stream 
protection rule applies to any application for a new permit submitted 
to the regulatory authority after the effective date of the stream 
protection rule under the applicable regulatory program. One commenter 
argued that the final rule should apply only to new leases or lands 
acquired after the effective date of the rule because adoption of the 
proposed rule would significantly increase the cost of mining large 
tracts of lands and coal reserves in which companies have already made 
significant investments. We do not agree. Persons who acquire leases, 
lands, or interests in land do so subject to future regulatory 
restrictions on use of those leases, lands, or interests in land. To 
the extent a property right exists to mine coal in a particular 
location using a particular method that right does not vest until 
issuance of a SMCRA permit. Even then, the regulatory authority has the 
right to require reasonable revision of the permit to ensure compliance 
with the Act and applicable regulatory program. See section 511(c) of 
SMCRA \199\ and the implementing regulations at 30 CFR 774.10(b).
---------------------------------------------------------------------------

    \199\ 30 U.S.C. 1261(c).
---------------------------------------------------------------------------

    Paragraph (a)(2) of Sec.  701.16 provides that the stream 
protection rule applies to any application for a new permit pending a 
decision by the regulatory authority as of the effective date of the 
stream protection rule under the applicable regulatory program, unless 
the regulatory authority has determined the application to be 
administratively complete under Sec.  777.15 or its state program 
counterpart before the effective date of the stream protection rule 
under the applicable regulatory program. Exempting administratively 
complete applications would protect permit applicants who invested time 
and money in developing a good-faith application under the existing 
rules.
    Paragraph (a)(3) of Sec.  701.16 provides that the stream 
protection rule applies to any application for the addition of acreage 
to an existing permit submitted to the regulatory authority after the 
effective date of the stream protection rule under the applicable 
regulatory program, with the exception of applications for incidental 
boundary revisions that do not propose to add acreage for coal removal. 
Under section 511(a)(3) of SMCRA \200\ and 30 CFR 774.13(d), any 
extensions to the area covered by a permit, except incidental boundary 
revisions, must be made by application for a new permit. However, some 
state regulatory programs authorize addition of acreage to an existing 
permit via the permit revision process, provided that the revision 
meets the application information requirements for a new permit and the 
regulatory authority processes the application like an application for 
a new permit. Paragraph (a)(3) would apply to these situations. We 
added the provision excluding incidental boundary revisions that add 
acreage for coal removal as a safeguard against abuse of the exception 
for incidental boundary revisions.
---------------------------------------------------------------------------

    \200\ 30 U.S.C. 1261(a)(3).
---------------------------------------------------------------------------

    Paragraph (a)(4) of Sec.  701.16 provides that the stream 
protection rule applies to any application for the addition of acreage 
to an existing permit pending a decision by the regulatory authority as 
of the effective date of the stream protection rule under the 
applicable regulatory program, with two exceptions. First, the stream 
protection rule would not apply to applications for incidental boundary 
revisions that do not propose to add acreage for coal removal. Second, 
the stream protection rule would not apply to applications that the 
regulatory authority has determined to be administratively complete 
before the effective date of the stream protection rule under the 
applicable regulatory program. The rationale for this paragraph is 
consistent with the rationale contained in paragraphs (a)(2) and (3).
    Paragraph (a)(5) of section 701.16 provides that the stream 
protection rule applies to any application for a permit revision 
submitted on or after the effective date of the stream protection rule 
under the applicable regulatory program, or pending a decision by the 
regulatory authority as of that date, that proposes a new excess spoil 
fill, coal mine waste refuse pile, or coal mine waste slurry 
impoundment or that proposes to move or expand the location of an 
approved excess spoil fill or coal mine waste facility. Many of the 
studies cited in Part II of the preamble mention that excess spoil 
fills are especially detrimental to streams, both because they often 
cover stream segments and because of the adverse impacts of drainage 
from and through the fill on aquatic life in streams downstream of the 
fill. Coal mine waste refuse piles and slurry impoundments have similar 
characteristics in that they sometimes cover stream segments and 
because drainage from and through the refuse pile or slurry impoundment 
could adversely impact aquatic life in receiving streams.
    Paragraph (a)(5) protects the rights and investment of existing 
permittees and persons with administratively complete applications, 
while limiting that protection to the locations and dimensions approved 
in the permit or contained in an administratively complete permit 
revision. Allowing a permittee to revise the permit to add new excess 
spoil fills or coal mine waste facilities, or to alter the location or 
size of those fills or coal mine waste facilities, without complying 
with the provisions of this final rule would be inconsistent with the 
principal purpose of the stream protection rule; i.e., preventing the 
loss or degradation of streams.

[[Page 93121]]

C. Part 773--Requirements for Permits and Permit Processing

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

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

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

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

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

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

    \201\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

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

    \202\ 30 U.S.C. 1292(a)(3).
---------------------------------------------------------------------------

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

    \203\ 16 U.S.C. 1536(a)(1)-(2).
    \204\ 16 U.S.C. 1538(a)(1)(C).
    \205\ 16 U.S.C. 1532(19).
    \206\ 50 CFR 222.102.
    \207\ 16 U.S.C. 1539(a)(1).
    \208\ 16 U.S.C. 1540.
---------------------------------------------------------------------------

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

    \209\ 16 U.S.C. 1531, et seq.
---------------------------------------------------------------------------

    Section 773.15(j)(1) applies when the applicant provides 
documentation that the proposed surface coal mining and reclamation 
operations would have no effect on species listed or proposed for 
listing as threatened or endangered under the Endangered Species Act of 
1973, 16 U.S.C. 1531 et seq., or on designated or proposed critical 
habitat under that law. This finding requires a demonstration that no 
impact on a proposed or listed species, or on designated or proposed 
critical habitat, will occur, regardless of the severity of the impact 
or whether the impact is positive or negative. An applicant might 
demonstrate this by showing that surveys have not revealed the presence 
of any listed or proposed species or designated or proposed critical 
habitat within the proposed permit or adjacent areas or that the 
operation has been designed to avoid areas where a species is known to 
occur. However, the permit applicant and the regulatory authority 
should communicate early in the process with the relevant office of the 
U.S. Fish and Wildlife Service or National Marine Fisheries Service to 
ensure that any necessary surveys have been completed and any avoidance 
measures are sufficient to ensure that there will be no effect on 
relevant species or habitat.
    Paragraph (j)(2) applies when the applicant and the regulatory 
authority document compliance with a valid

[[Page 93122]]

biological opinion that covers the issuance of permits for surface coal 
mining operations and the conduct of those operations under the 
applicable regulatory program. Paragraph (j)(2) would apply to the 
biological opinion associated with this rulemaking, or to a biological 
opinion covering the issuance of permits for surface coal mining 
operations and the conduct of those operations. Compliance with the 
pertinent biological opinion is an ongoing obligation that extends for 
the duration of the surface coal mining and reclamation operations.
    Paragraph (j)(3) is an option when we are the regulatory authority 
or there is another federal nexus to the proposed operation. Under this 
option, the applicant must provide documentation that interagency 
consultation under section 7 of the Endangered Species Act of 1973, 16 
U.S.C. 1536, has been completed for the proposed operation. Paragraph 
(j)(4) is an option when a state regulatory authority is responsible 
for permitting actions, and another option under this paragraph is 
either unavailable or is not utilized. Under this option, the applicant 
must provide documentation that the proposed operation is covered under 
a permit issued pursuant to section 10 of the Endangered Species Act of 
1973, 16 U.S.C. 1539.
    Some commenters requested that we revise proposed Sec.  773.15(j) 
because, as initially proposed, they believed this section required the 
regulatory authority to make a finding that the operation was ``not 
likely to jeopardize the continued existence of species listed or 
proposed for listing'' under the Endangered Species Act. The commenters 
alleged that it was the responsibility of the Service(s) to make a 
``jeopardy'' determination and that the regulatory authorities do not 
have the expertise to make this type of finding. We agree and have 
clarified the final regulation. As explained above, we revised this 
section to require the that the regulatory authority make a finding 
that the permit will comply with the Endangered Species Act, either 
because the proposed operation will have no effect upon any species 
listed or proposed for listing as threatened or endangered under the 
Endangered Species Act of 1973, or on designated or proposed critical 
habitat under that law or because the applicant and the regulatory 
authority have documented compliance with one of the mechanisms 
described in paragraphs (j)(2) through (4).
    Many commenters also alleged that imposing a requirement that an 
operation must not jeopardize the continued existence of species 
proposed for listing as threatened or endangered under the Endangered 
Species Act is beyond our authority under SMCRA. Some commenters 
alleged that we do not have authority to enforce the requirements of 
the Endangered Species Act. We do not agree with either comment. As we 
noted in the preamble to the proposed rule, both SMCRA and the 
Endangered Species Act provide authority to protect species that have 
been proposed for listing.\210\ SMCRA sections 515(b)(24) and 
516(b)(11) \211\ require that, at a minimum, mining operations must 
``to the extent possible using the best technology currently available, 
minimize disturbances and adverse impacts of the operation on fish, 
wildlife, and related environmental values, and achieve enhancement of 
such resources where practicable.'' The requirement to minimize impacts 
to ``fish, wildlife, and related environmental values'' is not in any 
way limited to species that have already been listed under the 
Endangered Species Act.
---------------------------------------------------------------------------

    \210\ 80 FR 44436, 44565 (Jul. 27, 2015).
    \211\ 30 U.S.C. 1265(b)(24), 1266(b)(11).
---------------------------------------------------------------------------

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

    \212\ 16 U.S.C. 1536(a)(1).
    \213\ 16 U.S.C. 1531(b).
    \214\ 16. U.S.C. 1536(a)(2).
    \215\ 16 U.S.C. 1536(a)(4).
---------------------------------------------------------------------------

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

    \216\ 54 U.S.C. 300101-307108.

    Under section 522(e) of SMCRA, the regulatory authority (and 
OSMRE for permits it issues) must protect publicly and privately 
owned properties listed on the National Register of Historic Places. 
There is no obligation under section 522(e)(3) to protect properties 
that are eligible for, but not listed on, the National Register. 
However, this finding requires the regulatory authority to consider 
such resources when making

[[Page 93123]]

permitting decisions in order to assure that the regulatory 
authority can assist the Secretary in implementing his 
responsibilities under section 106 of the National Historic 
Preservation Act.\217\
---------------------------------------------------------------------------

    \217\ 52 FR 4244 (Feb. 10, 1987).

We continue to adhere to this position. Moreover, our proposed rule did 
not include any substantive changes to paragraph (k). If we determine 
it is appropriate to change our position on protecting historic places 
from surface coal mining operations, this determination would be better 
addressed in a future rulemaking.
    Proposed paragraph (n)(1) would have required that the applicant 
demonstrate that the proposed operation has been designed to prevent 
the formation of discharges with levels of parameters of concern that 
would require long-term treatment after mining has been completed. 
Proposed paragraph (n)(2) would have required that the applicant 
demonstrate that there is no credible evidence that the design of the 
proposed operation will not work as intended to prevent the formation 
of discharges with levels of parameters of concern that would require 
long-term treatment after mining has been completed.
    A commenter supported proposed paragraph (n), noting that it 
ensures advances in predicting the formation of mine drainage will be 
employed to prevent water pollution. However, other commenters 
expressed concern that the ``no credible evidence'' standard would 
create uncertainty and result in unjustified permit denials by 
regulators fearful of approving any permit application in areas where 
acid-forming or toxic-forming materials are present. In response, we 
modified paragraph (n)(2) to delete the ``no credible evidence'' 
standard and replace it with a requirement that the demonstration and 
finding be based on a thorough analysis of all available evidence. 
Final paragraph (n)(2) also requires that the applicant explain why a 
study or other evidence that supports a contrary conclusion is not 
credible or applicable to the proposed operation.
    Final paragraph (n) requires not only a demonstration by the 
applicant, but also concurrence by the regulatory authority. The 
requirement for concurrence by the regulatory authority provides an 
additional safeguard against the approval of applications that 
ultimately create long-term discharges in need of treatment.
    Unlike the proposed rule, final paragraphs (n)(1) and (2) do not 
refer to ``parameters of concern'' because the purpose of this finding 
is to prevent the formation of any long-term discharges that require 
treatment, regardless of whether the parameter that creates the need 
for treatment is a parameter of concern. In final paragraph (n)(1), we 
replaced ``parameters of concern'' with the term ``toxic mine 
drainage,'' which is both more appropriate and more encompassing. There 
is no need for a replacement term in final paragraph (n)(2).
    Several commenters suggested that proposed paragraph (n) should be 
revised to explain what the term ``long-term treatment'' means, how a 
determination of a need for long-term treatment is made, and the 
ramifications if the findings incorrectly determine the need for long-
term treatment. We do not agree that there is a need for additional 
specificity in the text of the rule. ``Long-term'' refers to a 
discharge that continues to require treatment for more than a short 
time after the completion of land reclamation. The ramifications of 
making a demonstration and finding that ultimately prove inaccurate 
will vary with the circumstances resulting in the discharge, the nature 
of the discharge, and the timing of the discovery. Possible outcomes 
include issuance of a permit revision order, enforcement action, or 
initiation of action to rescind the permit under section 773.20 of this 
rule. In all cases, the permittee will need to treat the discharge and 
post appropriate final assurance or bond to cover treatment costs.
    A commenter expressed concern that proposed paragraph (n) would 
shift the burden of monitoring and accountability for everything that 
happens to water quality in the watershed to the coal industry. We 
disagree with the commenter. Final paragraph (n)(1) requires that the 
applicant demonstrate, and the regulatory authority concur, that the 
proposed operation has been designed to prevent toxic mine drainage 
that would require long-term treatment after mining has been completed. 
Final paragraph (n)(2) requires that the applicant demonstrate, and the 
regulatory authority concur, that a thorough analysis of all available 
evidence supports a conclusion that the design of the proposed 
operation will work as intended to prevent the formation of discharges 
that would require long-term treatment after mining has been completed. 
Final paragraph (n)(2) also provides that, if a study or other evidence 
supports a contrary conclusion, the applicant must explain why that 
study or other evidence is not credible or applicable to the proposed 
operation. Nothing in final paragraph (n) assigns accountability for 
all water quality issues in the watershed to the permittee and the 
monitoring requirements of this final rule are directed toward 
identifying mining-related impacts on water quality and quantity so 
that those impacts can be distinguished from nonmining-related impacts.
    One commenter asserted that by incorporating paragraph (n) we were 
improperly attempting to adopt and incorporate by reference a flawed 
policy document entitled, ``Hydrologic Balance Protection: Policy Goals 
and Objectives on Correcting, Preventing, and Controlling Acid/Toxic 
Mine Drainage'' that we issued on March 31, 1997. In that policy and 
accompanying documents, we explain that approval of a permit that would 
result in the creation of a discharge requiring long-term treatment 
would be inconsistent with SMCRA. We do not agree that the policy is 
flawed because it is fully justified by SMCRA.\218\ Therefore, we made 
no changes to paragraph (n) based on this comment.
---------------------------------------------------------------------------

    \218\ See, e.g., 30 U.S.C. 1258(a)(13), 1260(b)(3), 1265(b)(10), 
1266(b)(9).
---------------------------------------------------------------------------

    We received many comments supporting proposed section (o), which 
required that the regulatory authority find that, to the extent 
possible using the best technology currently available, the proposed 
operation has been designed to minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values, as 
identified in Sec. Sec.  779.20 or 783.20, and to enhance those 
resources where practicable, as required under Sec.  780.16 or Sec.  
784.16. This language is similar to sections 515(b)(24) and 516(b)(11) 
of SMCRA \219\ and is intended to reinforce compliance with those 
statutory provisions. We are adopting Sec.  773.15(o) as proposed, with 
the exception that the final rule does not include the phrase ``as 
identified in Sec.  779.20 or 783.20'' because those sections do not 
require identification of all related environmental values.
---------------------------------------------------------------------------

    \219\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

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

    We proposed to revise paragraph (e) of this section by adding 
paragraph (e)(4) to require that the permittee notify the regulatory 
authority and other appropriate state and federal regulatory agencies 
of any noncompliance with a term or condition of the permit. 
Notification would allow those agencies to take any necessary action to 
minimize the impacts of the noncompliance on the environment or public 
health or safety, consistent with the purpose

[[Page 93124]]

stated in section 102(a) of SMCRA.\220\ We have also added final 
paragraph (i) that requires compliance with all effluent limitations 
and conditions in any National Pollutant Discharge Elimination System 
permit for consistency with Sec. Sec.  816.41, 816.42, and 817.42.
---------------------------------------------------------------------------

    \220\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

    One commenter generally supported proposed Sec.  773.17(e) but 
expressed concern that the provision would unnecessarily limit the 
notification requirement to situations caused by the operator's 
noncompliance with terms and conditions of the permit. The commenter 
recommended broadening the requirement in proposed paragraph (e)(4) to 
include notification to the appropriate regulatory authorities anytime 
the operator's monitoring reveals the potential for environmental harm, 
regardless of whether it is caused by the operator's noncompliance. We 
decline to revise this section as the commenter suggests. As required 
in final rule Sec.  780.23, an operator must monitor water resources 
located both within the proposed permit area, as well as adjacent 
areas. This monitoring must include locations that are situated 
upgradient and downgradient for groundwater and upstream and downstream 
for surface water of the mining operations. Samples obtained from the 
upgradient and upstream monitoring sites are representative of 
conditions existing in the waters prior to any potential influence of 
the mining and reclamation activities. Those samples collected from the 
downgradient and downstream sites are used to evaluate the effect of 
the operations on water resources once compared to the upgradient/
upstream samples. Therefore, any condition detected in the samples, 
even in those collected in waters prior to entering the mine site 
indicating an off-site source, that could result in an imminent danger 
to the health or safety of the public or that could cause or reasonably 
be expected to cause significant, imminent, environmental harm will be 
reported as part of the ongoing monitoring requirements regardless of 
whether or not a noncompliance exists.
    Another commenter alleged that the proposed rule language lacked 
clarity on when the notification was required, what information needed 
to be included in the notice, and the timing required for the 
notification. In response to these comments, the language of the final 
rule has been modified. We have added language in paragraph (e)(4) 
specifying that the operator must notify the regulatory authority and 
other appropriate state and federal regulatory agencies whenever 
conditions within the permit area result in an imminent danger to the 
health or safety of the public or cause or could be reasonable expected 
to cause significant, imminent environmental harm to land, air, or 
water resources, regardless of whether a noncompliance exists. We note, 
however, that this requirement for immediate notification is only 
applicable to situations that could result in an imminent danger to 
public health or safety or significant, imminent environmental harm. 
For all other situations, as required by Sec.  840.11(a) and (b), the 
regulatory authority will be at the site for inspections at least 
monthly and, as required by Sec. Sec.  816.35(b)(1) and 816.36(b)(1), 
will review all monitoring data quarterly. Thus, the regulatory 
authority will have the tools to detect changes that do not rise to the 
level of imminent harm.
    Another commenter objected to the provision in paragraph (e)(4) 
that would require notice be provided to ``other appropriate state and 
federal regulatory agencies.'' According to the commenter, the SMCRA 
regulatory authority is the only agency with jurisdiction over 
compliance with SMCRA permits. We agree with commenter that the SMCRA 
regulatory authority has jurisdiction concerning SMCRA permit issues; 
however, coal mine operations are subject to other state and federal 
permitting actions. We have, however, limited the scope of paragraph 
(e)(4) only to those situations that would require the issuance of a 
cessation order for imminent danger or environmental harm under Sec.  
843.11(a). That approach should minimize the reporting burden on the 
permittee, while ensuring that the regulatory authority and other 
appropriate agencies receive notice of situations that require 
immediate attention to protect the public or prevent significant 
environmental harm from occurring.
    We also proposed to add a new permit condition in paragraph (h) of 
this section, which would require the permittee obtain all necessary 
authorizations, certifications, and permits in accordance with Clean 
Water Act requirements before conducting any activities that require 
approval or authorization under the Clean Water Act. Several commenters 
objected to this proposed addition. A couple of commenters stated that 
requiring Clean Water Act permits before mining contradicted section 
702 of SMCRA.\221\ Others interpreted proposed paragraph (h) as 
allowing SMCRA to supersede the authority of Clean Water Act agencies 
in determining when permits are required. We do not agree with those 
commenters who stated that it violated section 702(a) of SMCRA or 
otherwise superseded the authority of Clean Water Act agencies. Nothing 
in the language of this condition authorizes the SMCRA regulatory 
authority to determine when a Clean Water Act permit is needed--that is 
exclusively the jurisdiction of the agencies responsible for 
implementing and administering the Clean Water Act. Instead, the 
condition merely underscores that the permittee must obtain any 
required permits, authorizations, or certifications before initiating 
mining activities for which those permits, authorizations, and 
certifications are needed. The condition will allow the SMCRA 
regulatory authority to take enforcement action if another agency 
determines that a non-SMCRA permit is needed, but the SMCRA permittee 
does not obtain the necessary permit before beginning the pertinent 
mining operations.
---------------------------------------------------------------------------

    \221\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    These same commenters also questioned why we would single out the 
Clean Water Act as opposed to other state and federal permits for 
inclusion as permit conditions. After evaluating these comments, we 
have decided to expand the scope of paragraph (h) to require that the 
permittee obtain all necessary authorizations, certifications, and 
permits in accordance with ``other applicable federal, state, and 
tribal laws before conducting any activities that require 
authorization, certification, or a permit under those laws.'' Within 
the proposed rule, we limited the scope of this provision to the Clean 
Water Act because that is the primary federal statute applicable to 
water quality and given the focus of this rule it satisfied our purpose 
to highlight the need for compliance with the Clean Water Act and to 
enhance coordination with the Clean Water Act authorities. See 80 FR 
44436, 44480 (Jul. 27, 2015). Upon further review, we find no reason to 
limit the scope of this provision to the Clean Water Act as it is 
equally important that the permittee comply with all applicable laws.
    As discussed in Part IV, above, in response to general comments 
about direct enforcement of water quality standards we have added 
paragraph (i) to final rule Sec.   773.17. This paragraph adds a 
condition whereby the permittee must comply with all effluent 
limitations and conditions in any National Pollutant Discharge 
Elimination System permit issued for their operation by the appropriate 
authority under the Clean Water Act. As we explained in Part IV of the 
preamble,

[[Page 93125]]

the addition of this required permit condition and the revised rule 
text at 30 CFR 816.42 supports our longstanding regulatory requirement 
that coal mining operations must comply with the effluent limitations 
prescribed by Clean Water Act authorities in NPDES permits under 
section 402 of the Clean Water Act.\222\ In combination, these 
revisions are intended to ensure that violations of effluent 
limitations are violations of the SMCRA permit, and therefore are 
enforceable by the SMCRA regulatory authority.
---------------------------------------------------------------------------

    \222\ 33 U.S.C. 1342.
---------------------------------------------------------------------------

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

    Under proposed Sec.  780.19(k), a permit issued on the basis of 
what the regulatory authority later determines to be substantially 
inaccurate baseline information would be void from the date of issuance 
and have no legal effect. Proposed paragraph (k) also would have 
required that the permittee cease mining-related activities and 
immediately begin to reclaim the disturbed area upon notification by 
the regulatory authority that the permit is void.
    Some commenters opposed proposed Sec.  780.19(k) on the basis that 
it deprived permittees of their rights without due process and that the 
phrase ``substantially inaccurate'' was too subjective, vague, poorly 
defined, essentially unlimited in scope, and difficult to enforce. One 
commenter alleged that proposed paragraph (k) was unreasonable because 
it did not consider whether the inaccuracy was intentional or had any 
material impact. Another commenter characterized the proposed paragraph 
as an unauthorized punitive provision that lacks any statutory support. 
According to that commenter, section 521(a)(4) of SMCRA \223\ provides 
the sole circumstances under which a SMCRA permit may be revoked--and 
then only for a pattern of violations.
---------------------------------------------------------------------------

    \223\ 30 U.S.C. 1271(a)(4).
---------------------------------------------------------------------------

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

    \224\ 30 U.S.C. 1271.
    \225\ 30 U.S.C. 1261.
---------------------------------------------------------------------------

    Several commenters expressed concern that adoption of proposed 
Sec.  780.19(k) would create uncertainty as to the validity of the bond 
posted for the permit. One commenter suggested that the rule should be 
revised to specify that the permit would be revoked rather than voided, 
a change that the commenter indicated would resolve uncertainty about 
the status of the bond. Several commenters also expressed concern that 
because the permit would be considered null and void from the date of 
issuance, the former permittee theoretically could be subject to 
enforcement action for mining without a permit during the time between 
permit issuance and permit nullification.
    One commenter thought that we had already addressed this issue in 
the regulations at Sec. Sec.  773.21 through 773.23 governing 
improvidently issued permits. That is not the case, however, because 
those regulations apply only to the permit eligibility criteria of the 
applicable regulations implementing section 510(c) of SMCRA; \226\ 
i.e., an improvidently issued permit is a permit that should not have 
been issued because, at the time of permit issuance, the permittee or 
operator owned or controlled a surface coal mining and reclamation 
operation with an unabated or uncorrected violation. See 30 CFR 
773.21(a). Another commenter suggested that we replace proposed 
paragraph (k) with regulations analogous to those that apply to 
improvidently issued permits. However, this commenter, like several 
other commenters urged us to limit their applicability to situations in 
which information has been falsified or the applicant intentionally 
submits inaccurate or incomplete data.
---------------------------------------------------------------------------

    \226\ 30 U.S.C. 1260(c).
---------------------------------------------------------------------------

    After evaluating the comments received, we have decided not to 
adopt proposed Sec.  780.19(k). Instead, as suggested by one commenter, 
we are replacing the permit nullification provisions of that paragraph 
with procedures and requirements analogous to those that apply to 
improvidently issued permits under Sec. Sec.  773.21 through 773.23. 
This approach will afford the permittee ample due process, as urged by 
numerous commenters. Consistent with the new approach, we are codifying 
the replacement provisions in section 773.20 rather than section 780.19 
because Part 773 contains the requirements for permit processing. 
However, we do not agree with those commenters who suggested that these 
regulations should apply only when information has been falsified or 
when the applicant intentionally submits inaccurate or incomplete data. 
The purpose of final Sec.  773.20 is to minimize both the possibility 
that mining conducted under permits approved on the basis of inaccurate 
information could result in environmental harm and the extent of that 
harm. The reason for the inaccuracy of the information is not relevant 
to attainment of this purpose. Thus, limiting Sec.  773.20 to 
situations in which permit application information was intentionally 
falsified would be counterproductive and inconsistent with the purpose 
of this section.
    We also disagree with the comment that section 521(a)(4) of SMCRA 
provides the sole circumstances under which a SMCRA permit may be 
revoked. As discussed in the preamble to the rule concerning 
improvidently issued permits,\227\ the U.S. Court of Appeals for the 
D.C. Circuit has held that SMCRA provides both express and implied 
authority for the suspension or rescission of improvidently issued 
permits:
---------------------------------------------------------------------------

    \227\ 65 FR 79583-79584 and 79628 (Dec. 19, 2000).

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

[[Page 93126]]

because of its express authority to deny permits in the first 
instance.\228\
---------------------------------------------------------------------------

    \228\ Nat'l Mining Ass'n v. Dep't of the Interior, 177 F.3d 1,9 
(D.C. Cir. 1999) (``NMA v. DOI II'').

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

    \229\ 30 U.S.C. 1260(b)(1).
---------------------------------------------------------------------------

    We further disagree with the comment that described the proposed 
paragraph as duplicative and unnecessary because states already have 
effective administrative processes in place to scrutinize data and 
address issues. We applaud the administrative processes that states 
have put in place as safeguards against the approval of permit 
applications with inaccurate baseline information. However, no process 
is perfect. Final Sec.  773.20 provides a mechanism to address 
defective permits that slip through those safeguards.
    Paragraph (a) of Sec.  773.20 provides that the regulatory 
authority must initiate action that could lead to suspension or 
rescission of the permit whenever the regulatory authority discovers 
that the permit was issued on the basis of what later turns out to be 
inaccurate baseline information. In response to commenters' concerns 
that the ``substantially inaccurate'' threshold in proposed Sec.  
780.19(k) was too subjective and too broad in scope, we added a proviso 
that Sec.  773.20(a) applies only if the information is inaccurate to 
the extent that it would invalidate one or more of the findings 
required for permit application approval under Sec.  773.15 or other 
provisions of the regulatory program.
    Paragraphs (b) through (d) of Sec.  773.20 are a streamlined 
version of the requirements and procedures in 30 CFR 773.21 through 
773.23 pertaining to improvidently issued permits. We have adapted 
those requirements and procedures as appropriate, discarding provisions 
that are unique to improvidently issued permits. We have replaced the 
references to the administrative review procedures of 43 CFR 4.1370 
through 4.1377, which apply only to improvidently issued permits, with 
references to 30 CFR part 775, which contains administrative and 
judicial review provisions pertinent to decisions on permits. In 
addition, we established a uniform 60-day notice period for proposed 
suspensions and rescissions, rather than adopting the 60-day notice 
period for proposed suspensions and 120-day notice period for proposed 
rescissions set forth in Sec.  773.22(b) and (c). We find that there is 
no purpose or need for the longer notice period for proposed 
rescissions, particularly when the purpose of Sec.  773.20 is to 
minimize any environmental harm that may result from the issuance of 
permits on the basis of inaccurate information. Finally, in 30 CFR 
773.20 (c) and (d), we provide a mechanism through which the permittee 
can avoid permit suspension or rescission by providing updated 
information and submitting an application to revise the permit as 
needed to correct the deficiency. We are adopting this mechanism in 
part because of comments urging us to allow the permittee to take 
corrective action instead of requiring nullification of the permit. As 
the commenters noted, permit nullification would be disproportionately 
harsh compared to the sanctions and penalties that SMCRA and the 
regulations impose for performance standard violations. Providing an 
alternative to permit suspension or rescission also is responsive to a 
comment that we should allow use of the permit revision procedures of 
section 511 of SMCRA to remedy the deficiency.
    Paragraph (e) of Sec.  773.20 sets forth the actions that the 
permittee must take if a permit is suspended or rescinded. Paragraph 
(e) is similar to, and based upon 30 CFR 843.13(c), which specifies the 
actions that the permittee must take if a permit is suspended or 
revoked for a pattern of violations. Paragraph (e)(1) provides that, if 
the permit is suspended, the permittee must cease all surface coal 
mining operations under the permit and complete all affirmative 
obligations specified in the suspension order within the time 
established in that order. It also specifies that the regulatory 
authority must rescind the permit if the permittee does not complete 
those obligations within the time specified. Paragraph (e)(2) provides 
that, if the permit is rescinded, the permittee must cease all surface 
coal mining operations under the permit and complete reclamation within 
the time specified in the rescission order.
    Paragraph (f) of Sec.  773.20 addresses commenter concerns about 
the impact on bond coverage. Paragraph (f)(1) provides that, if the 
regulatory authority suspends or rescinds a permit, the bond posted for 
the permit will remain in effect until the permittee completes all 
reclamation obligations under the reclamation plan approved in the 
permit and obtains bond release under Sec. Sec.  800.40 through 800.44. 
Paragraph (f)(2) provides that the regulatory authority must initiate 
bond forfeiture proceedings under Sec.  800.50 if the permittee does 
not complete all reclamation obligations within the time specified in 
the permit rescission order.

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

Section 774.9: Information Collection

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

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

    We are adopting Sec.  774.10 as proposed, with the exception that 
we are reorganizing paragraph (a) and adding a new paragraph (a)(2), 
which replaces proposed Sec.  780.16(c)(5). In the final rule, we are 
re-designating the introductory text of proposed Sec.  774.10(a) as 
paragraph (a)(1). In concert with this change, we are re-designating 
proposed paragraphs (a)(1) through (4) as paragraphs (a)(3) through 
(6).
    Proposed Sec.  780.16(c)(5) required that the permittee 
periodically evaluate the impacts of the operation on fish, wildlife, 
and related environmental values in the permit and adjacent areas and 
then use that information to modify the operations to avoid or minimize 
adverse effects. Several commenters requested that we provide guidance 
or specify the frequency and rigor of the mandated periodic evaluation 
of an operation's impact on fish and wildlife. Additionally, commenters 
requested clarification as to whose responsibility it would be to 
complete this evaluation. Some commenters opposed this paragraph 
because it could be interpreted as requiring that the permittee modify 
operations even when the adverse effects on wildlife are beyond the 
control of the permittee.

[[Page 93127]]

Other commenters found this paragraph to be unnecessarily disruptive in 
that it would undermine the certainty provided by approval of the 
permit application. In response to these comments, we are not adopting 
proposed Sec.  780.16(c)(5). Instead, we are including a modified 
version of that paragraph within the final rule as Sec.  774.10(a)(2). 
Under the final rule, evaluation of the impacts of the operation on 
fish, wildlife, and related environmental values will be part of the 
midterm permit review conducted by the regulatory authority and thus 
will be the responsibility of the regulatory authority. This timing and 
the shift in responsibility from the permittee to the regulatory 
authority is appropriate because the purpose of the midterm permit 
review is to determine whether the assumptions and predictions upon 
which permit application approval was based have proven reasonably 
accurate. If the assumptions and predictions are not accurate, the 
regulatory authority will issue an order to the permittee to revise the 
permit to ensure compliance with the regulatory program. In this case, 
if the regulatory authority determines, as a result of the midterm 
permit review, that the fish and wildlife protection and enhancement 
plan approved in the permit is not effectively minimizing disturbances 
and adverse impacts on fish, wildlife, and related environmental values 
to the extent possible using the best technology currently available, 
as required by section 515(b)(24) of SMCRA,\230\ the regulatory 
authority will issue an order to the permittee to revise the permit to 
update the technology required or make other changes necessary to 
comply with this provision of the Act. The regulatory authority has the 
discretion to determine the extent of the evaluation conducted as part 
of the midterm permit review.
---------------------------------------------------------------------------

    \230\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

Section 774.15: How may I renew a permit?

    We proposed within paragraph (b)(2)(vii), relative to application 
requirements and procedures, to require an analysis of the monitoring 
results under Sec. Sec.  816.35 through 816.37 or Sec. Sec.  817.35 
through 817.37, relating to groundwater, surface water, and biological 
condition of streams and an evaluation of the accuracy and adequacy of 
the determination of the probable hydrologic consequences of mining 
prepared under Sec.  780.20 or Sec.  784.20 of this chapter. We also 
proposed at paragraph (b)(2)(viii) to require an update of the 
determination of the probable hydrologic consequences of mining 
prepared under Sec.  780.20 or Sec.  784.20, if needed, or 
documentation that the findings in the existing determination are still 
valid.
    In addition, proposed paragraph (c)(1), relating to the approval 
process, provided that a complete and accurate renewal application will 
be approved unless certain findings are made. We proposed one such 
finding at (c)(1)(viii), which would allow a regulatory authority to 
disapprove an application for renewal if the regulatory authority 
determined, based on an analysis of the monitoring results or the 
updated determination of the probable hydrologic consequences of 
mining, that the finding it originally made under Sec.  773.15(e)--the 
operation is designed to prevent material damage to the hydrologic 
balance outside the permit area--is no longer accurate.
    Several commenters objected to proposed requirements at 
(b)(2)(vii), (b)(2)(viii), and (c)(1)(viii). These commenters expressed 
concern that the proposed requirements would compromise the right of 
successive renewal and recommended the deletion of these regulations. 
The commenters also stated that there are existing opportunities to 
review data as it relates to the probable hydrologic consequences, and 
it is unnecessary to couple a data review requirement with permit 
renewal. After reviewing the comments, we agree with the commenters and 
have deleted the proposed requirements at (b)(2)(vii), (b)(2)(viii), 
and (c)(1)(viii) from the final rule.

E. Part 777--General Content Requirements for Permit Applications

Section 777.1: What does this part cover?

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

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

    Proposed paragraph (a)(3) of this section would have required that 
all permit applications be filed in an electronic format prescribed by 
the regulatory authority unless the regulatory authority grants an 
exception for good cause. One commenter supported this proposal because 
it would facilitate the acquisition and transfer of permit files by 
coalfield residents via the internet and avoid the need for those 
residents to make a lengthy trip to the office of the regulatory 
authority and copy sometimes unwieldy documents. However, other 
commenters alleged that adoption of this provision would require major 
changes in state regulatory programs at great expense for both the 
regulatory authority and the applicant. Several commenters 
characterized the proposed requirement as an unfunded mandate on the 
states unless we are prepared to award grants to states to fully fund 
the infrastructure needed for electronic permitting. One commenter 
acknowledged that a fully implemented electronic permitting system may 
facilitate transfer of application documents, thus avoiding copying and 
mailing costs. However, the commenter noted, these savings may be 
illusory as the regulatory authority likely also would request multiple 
hard copies. Some commenters argued that decisions on electronic 
permitting should be left to the state regulatory authorities. Another 
commenter alleged that SMCRA provides no authority for us to prescribe 
the format of permit applications.
    For the reasons set forth in the preamble to the proposed 
rule,\231\ we continue to support and encourage the use of electronic 
permitting. However, we recognize that state regulatory authorities 
differ in their capability to implement electronic permitting and that 
implementation may not be cost-effective or practicable in all cases. 
In addition, we cannot guarantee availability of the funding needed to 
implement electronic permitting. Therefore, we have not adopted Sec.  
777.11(a)(3) as proposed and have removed reference to any requirement 
that permit applications be filed in an electronic format. Therefore, 
the final rule text is substantially similar to previous regulation 
Sec.  777.11. As finalized, paragraph (a)(3) is substantively identical 
to section 507(b) of SMCRA,\232\ which provides that ``[t]he permit 
application shall be submitted in a manner satisfactory to the 
regulatory authority.''
---------------------------------------------------------------------------

    \231\ See 80 FR 44436, 44481 (Jul. 27, 2015).
    \232\ 30 U.S.C. 1257(b).
---------------------------------------------------------------------------

    Several commenters provided suggestions on how large map files, 
professional certifications, and verification of submittals could be 
submitted electronically. One commenter recommended that all systems 
include a common system component, which could allow a company to use a 
central system that can easily be transferred to a common file type for 
delivery across multiple states. Another commenter urged that digital 
permit files be available for download on a document-by-document

[[Page 93128]]

basis because persons with computers that have slow processor speeds 
may not be able to open permits in large file format without having 
their computers crash repeatedly. The commenter also recommended that 
digital permit files be available on both compact disc and flash drive 
and that digitally submitted maps, plans, and cross-sections be made 
available in both high-definition and low-definition versions. We 
recognize the merit of these suggestions and recommendations. However, 
we are not including them in the final rule because final paragraph 
(a)(3) does not require use of electronic permitting. Regulatory 
authorities electing to require the submission of permit applications 
electronically may wish to consider these recommendations.

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

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

    \233\ 80 FR 44436, 44481 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several commenters opined that the requirement within proposed 
paragraph (a) about submitting the results of the laboratory quality 
assurance and quality control procedures to the regulatory authority 
was vague and did not include the relevant information necessary to 
determine the level of quality assurance and quality control (level I, 
II, III, or IV). In addition, the commenters claimed the requirement 
for electronically submitted data including the identification of any 
data transformations would require significant effort by the 
laboratories that perform this work. The commenters opined the 
transformed data are typically identified by the laboratory through the 
use of flags within the final laboratory report and because these flags 
are generated by the laboratory the flags are likely to differ from lab 
to lab. Our intent with this requirement is to ensure the quality 
assurance and quality control data, regardless of the level, is 
submitted to the regulatory authority so that they can review the data. 
Furthermore, transformed data should be noted by the laboratory. 
However, we are not requiring the codes used to denote the transformed 
data to be the same for all laboratories. Therefore, based on these 
comments, we did not make any changes to proposed paragraph (a), 
pertaining to the submission of laboratory quality assurance and 
quality control data, in the final rule.
    However, for the purpose of clarification, we added additional 
language to the final rule about water quality field sampling sheets 
that are required to be submitted to the regulatory authority. In the 
proposed rule, we required field sheets for water quality samples from 
wells.\234\ It was our intent that a permittee submit to the regulatory 
authority sample field sheets for all water quality samples collected 
from surface water and groundwater monitoring. Our intent is supported 
by proposed paragraph (b) where we reference sampling and analysis of 
surface water and groundwater. To clarify this we added language to 
final paragraph (a) expressly requiring submission of the field 
sampling sheets for each surface-water sample collected and for each 
groundwater sample collected from wells, seeps, and springs. We added 
``seeps and springs'' to the list of sample field sheets we require a 
permittee to submit to the regulatory authority because seeps and 
springs are commonly monitored to assess water quality of groundwater,
---------------------------------------------------------------------------

    \234\ 80 FR 44436, 44592 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (b): Sampling and Analyses of Groundwater and Surface 
Water
    In paragraph (b) we proposed to add a requirement that sampling and 
analyses of surface water and groundwater be conducted according to the 
methodology in 40 CFR parts 136 and 434. Several commenters asserted 
that some of the methodology in 40 CFR parts 136 and 434 is not 
applicable to the type of sampling and analysis conducted at coal mines 
and the operator should be allowed to use a scientifically-valid 
methodology acceptable to the regulatory authority. We agree. To 
address this comment, we revised paragraph (b) to clarify that all 
sampling and analyses of groundwater and surface water be performed to 
satisfy all the requirements of this subchapter and that they are 
conducted according to the methodology in 40 CFR parts 136 and 434; or 
scientifically-defensible methodology acceptable to the regulatory 
authority, in coordination with any agency responsible for 
administering or implementing a program under the Clean Water Act that 
requires water sampling and analysis. The addition of (b)(2) takes a 
reasonable approach to sampling and analyses of surface water and 
groundwater requirements of this subchapter.
    Additionally, we received several comments from industry and 
regulatory authorities recommending that we remove the requirements to 
provide surface water and groundwater sampling field sheets to the 
regulatory authority. Instead, these commenters suggested that the 
regulatory authorities should be able to use their discretion to 
request them as needed. We disagree. Surface water and groundwater 
sampling field sheets contain the metadata regarding field parameter 
measurements and methods used in the collection of water quality 
samples of both surface water and groundwater. Meta data contained on 
sampling field sheets, such as, calibration information for instruments 
used to measure field parameters and information concerning the 
sampling methods used to collect water quality samples are necessary to 
accurately assess the water quality data. Further, several commenters 
suggested that sending groundwater sampling field sheets to the 
regulatory authority does not enhance the review process because 
applicants already provide boring logs and well construction diagrams 
which include information concerning the depth of the well screens for 
all monitoring wells included as a part of the permit application. In 
addition, the commenters asserted that descriptions

[[Page 93129]]

of the sampling methodology for all groundwater samples are included in 
detail within the hydrogeology sections of the SMCRA permit application 
and that the static water level collected prior to any purging should 
be considered sufficient for understanding whether the well screen was 
or was not fully saturated on the sample date. We disagree with the 
commenters' assertions about the lack of importance of groundwater 
field sheets when reviewing hydrologic data from the well. We are 
requiring groundwater sampling sheets be submitted to the regulatory 
authority because the groundwater sampling sheets contain information 
about instrument calibration, well purging, and sample collection that 
are necessary to thoroughly review water-quality data and are not 
included in the information referenced in the comment. Therefore, no 
changes were made to the final rule in response to this comment.
Final Paragraph (c): Geological Sampling and Analysis
    We received one comment about proposed paragraph (c). The commenter 
opined that by requiring all geologic sampling and analysis to be 
conducted using a scientifically valid mythology, it would result in 
increases in costs and time for permit preparation and approval. We 
agree that increases in costs and time for permit preparation and 
approval may occur; however any cost increase is outweighed by the 
added benefit of better permitting decisions using comprehensive and 
high quality geologic data. Therefore, we made no changes to paragraph 
(c) in response to this comment. However, in response to a federal 
agency comment, in the final rule we use the term ``scientifically-
defensible methodology,'' instead of the term ``scientifically-valid 
methodology,'' as proposed.
Final Paragraph (d): Use of Models
    A few commenters requested an explanation for our alleged aversion 
to the use of models to characterize baseline hydrologic condition 
within Sec.  777.13(d) when elsewhere in the rule we allow models to 
evaluate ecological function of streams through the use of 
bioassessment protocols. These commenters assert that this alleged 
disparity creates regulatory inconsistency and should be addressed for 
clarity. These commenters mischaracterize our position. In final 
paragraph (d), we allow for the use of models as long as they 
incorporate site specific data to calibrate each model. Contrary to 
commenters' assertions, we also require site specific data for our 
evaluation of ecological function; therefore our regulations are 
consistent.
    We also proposed to modify the existing provisions by adding 
paragraph (d)(2), which would require that all models be calibrated 
using actual, site-specific data and that they be validated for the 
region and ecosystem in which they will be used. By adding these 
additional requirements we intend to improve the accuracy and validity 
of models and promote better data collection and analysis procedures to 
ensure more informed permitting decisions. Several commenters from 
industry and regulatory authorities recommended that we provide 
regulatory authorities sufficient discretion to allow for professional 
judgment concerning the necessity for site-specific data and the data 
requirements to process models. Also, several commenters opined that 
using site-specific data for calibration may not be possible because it 
may be costly and the regulatory authority does not have control of 
activities outside of coal mining permit, thus making it difficult to 
include that site specific data. We disagree because it is important to 
use actual site-specific data to calibrate the models. A model that is 
calibrated using site-specific data is more likely to provide better 
modeling results.
    Therefore, the final rule adopts Sec.  777.13 as proposed, with 
minor changes as explained herein to paragraphs (a), (b), and (d).

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

    We revised Sec.  777.14 from the proposed section by making 
editorial revisions to clearly distinguish between requirements that 
apply to maps and plans for all operations and those that apply only to 
maps and plans for operations in existence before the effective date of 
a permanent regulatory program for the state in which the operation is 
located. Specifically, paragraph (a) applies to maps and plans for all 
operations, while paragraph (b) applies only to maps and plans for 
operations in existence before the effective date of a permanent 
regulatory program for the state in which the operation is located. 
This distinction is consistent with the preamble to this rule as 
originally promulgated, which states that ``[t]he concept of 
delineation of phases of mining on application maps relates to key 
dates in the interim [initial] and permanent regulatory programs 
establishing different periods and levels of regulation under the 
Act.'' See 44 FR 15017 (Mar. 13, 1979).\235\
---------------------------------------------------------------------------

    \235\ The contents of 30 CFR 777.14 were originally published on 
March 13, 1979 as 30 CFR 771.23(e) before their redesignation as 30 
CFR 777.14 on Sept. 28, 1983. The 1979 preamble incorrectly refers 
to 30 CFR 771.23(e) as 30 CFR 771.21(e).
---------------------------------------------------------------------------

    In the final rule, we removed the first sentence of previous 
paragraph (b) because it is poorly worded, unnecessary, duplicative of 
the remainder of paragraph (b), and could erroneously be interpreted as 
applying to maps and plans for all operations, not just maps and plans 
for operations in existence before the effective date of a permanent 
regulatory program for the state in which the operation is located. We 
also revised paragraph (b) to clarify that its provisions apply only 
when applicable; i.e., that there is no need to provide maps and plans 
showing each period listed in paragraphs (b)(1) through (3) if the 
operations was not in existence during one or more of those periods.
    Previous paragraph (b)(4) required that maps and plans show those 
portions of the operation where surface coal mining operations occurred 
after the estimated date of issuance of a permit under the approved 
regulatory program. This paragraph is unnecessary because the map of 
the proposed permit area identifies the lands upon which surface coal 
mining and reclamation operations will take place after issuance of the 
permit. Furthermore, previous paragraph (b)(4) inappropriately refers 
to surface coal mining operations that occurred after the estimated 
date of permit issuance. This language is inconsistent with section 
506(a) of SMCRA,\236\ which specifies that ``no person shall engage in 
or carry out on lands within a State any surface coal mining operations 
unless such person has first obtained a permit. . . .'' Therefore, 
final section 777.14 does not include a counterpart to previous 
paragraph (b)(4).
---------------------------------------------------------------------------

    \236\ 30 U.S.C. 1256(a).
---------------------------------------------------------------------------

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

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

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

Section 779.1: What does this part do?

    With the exception of altering the title of this section for 
clarity, we are

[[Page 93130]]

finalizing section 779.1 as proposed. We received no comments on this 
section.

Section 779.2: What is the objective of this part?

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

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

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

Section 779.10: Information Collection

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

Previous Sec.  779.11: General Requirements

    We have removed and reserved previous Sec.  779.11 for the reasons 
discussed in the preamble to the proposed rule.\237\
---------------------------------------------------------------------------

    \237\ 80 FR 44436, 44482 (Jul. 27, 2015).
---------------------------------------------------------------------------

Previous Sec.  779.12: General Environmental Resources Information

    We have removed and reserved previous Sec.  779.11 for the reasons 
discussed in the preamble to the proposed rule.\238\
---------------------------------------------------------------------------

    \238\ Id.
---------------------------------------------------------------------------

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

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

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

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

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

    Several commenters, including the U.S. Forest Service and other 
federal agencies, expressed support for the proposed changes to this 
section. In particular, these commenters voiced strong support for the 
use of native species rather than introduced species because the use of 
native species would minimize adverse effects on fish and wildlife.
    Other commenters opposed the proposed revisions to Sec.  779.19 as 
unnecessary and excessively burdensome. These commenters urged us not 
to adopt the proposed revisions and instead simply reaffirm the 
regulatory authority's discretion to require vegetation information as 
needed. We disagree that the previous regulations were adequate. The 
previous regulations provided the regulatory authority with complete 
discretion in deciding whether to require submission of vegetation 
information as part of the permit application. In view of other changes 
to our regulations to generally require revegetation with native 
species and reestablishment of native plant communities (with certain 
exceptions), discretionary submission of premining vegetation 
information is no longer appropriate. The vegetation information 
required by final section 779.19 is essential to fully implement the 
revegetation requirements of section 515(b)(19) of SMCRA,\239\ which 
provides that surface coal mining operations must establish ``a 
diverse, effective, and permanent vegetative cover of the same seasonal 
variety native to the area of land to be affected and capable of self-
regeneration and plant succession at least equal in extent of cover to 
the natural vegetation of the area.'' To comply with this requirement, 
both the applicant and the regulatory authority need to know the 
vegetative cover native to the area of land to be affected and the 
extent of cover of the natural vegetation of the area. The information 
must be in sufficient detail to assist in preparation of the 
revegetation plan under Sec.  780.12(g) and to provide a baseline for 
comparison with postmining vegetation, as final paragraph (b)(1) 
requires. In addition, the information required by Sec.  779.19 will 
assist in implementation of section 508(a)(2) of SMCRA,\240\ which 
requires that the reclamation plan in each permit application identify 
both the premining land uses and the capability of the land prior to 
any mining to support a variety of uses.
---------------------------------------------------------------------------

    \239\ 30 U.S.C. 1265(b)(19).
    \240\ 30 U.S.C. 1258(a)(2).
---------------------------------------------------------------------------

    In response to comments that the proposed rule was unnecessary and 
excessively burdensome, we reevaluated each element of the proposed 
rule and narrowed the requirements down to those that we determined to 
be necessary to ensure revegetation and reclamation of mine sites in 
accordance with SMCRA. We also reorganized and restructured the rule to 
improve clarity.
    Proposed paragraph (a)(1) would have required that the applicant 
identify, describe, and map existing vegetation types and plant 
communities on the proposed permit and adjacent areas and within any 
proposed reference areas. Several commenters asserted that we lack the 
authority under SMCRA to require vegetation information for the 
adjacent area. While we do not agree with that assertion, we determined 
that vegetation information for the adjacent area typically would not 
be useful either to the applicant in preparing the reclamation and 
revegetation plans for the permit or to the regulatory authority in 
reviewing and processing the permit application. Therefore, final 
paragraph (a) does not require vegetation information for the adjacent 
area. The regulatory authority, however, may use its discretion to 
require vegetation information for the adjacent area.
    Several commenters questioned the value of the vegetation 
information requirements in situations where reestablishment of native 
plant communities would be inconsistent with the postmining land use. 
We did not provide a waiver under these circumstances for several 
reasons. First, this rule is intended to more fully implement section 
508(a)(2) of SMCRA,\241\ which requires that the permit application 
include a statement of ``the capability of the land prior to any mining 
to support a variety of uses giving consideration to soil and 
foundation characteristics, topography, and vegetative cover.'' 
Descriptions of the vegetative communities that exist on the site, as 
required by final paragraph (a), and of the native vegetation and plant 
communities typical of that area in the absence of human alterations, 
as required by final paragraph (c), are an important part of the 
determination of the capability of the land. Second, there is no 
guarantee that the approved postmining land use will be implemented 
before expiration of the revegetation responsibility period or even 
that it will be implemented at all. Therefore, our final revegetation 
rules at Sec. Sec.  780.12(g) and 816.111 through 816.116 require 
planting and reestablishment of native plant communities on mined lands 
unless the approved postmining land use is implemented before the 
entire bond amount for the area has been fully

[[Page 93131]]

released under Sec. Sec.  800.40 through 800.43. Third, sites with 
agricultural, industrial, commercial, residential, or recreational 
postmining land uses that may be incompatible with restoration of 
native plant communities overall often contain small areas that can 
(and, under this final rule, must) be planted with native species to 
provide some wildlife habitat.
---------------------------------------------------------------------------

    \241\ 30 U.S.C. 1258(a)(2).
---------------------------------------------------------------------------

    A commenter on proposed paragraph (a) asked that we specify how an 
applicant should select appropriate reference areas. Other commenters 
interpreted the proposed rule as always requiring use of reference 
areas and objected to this alleged requirement. We did not intend to 
require use of a reference area. We worded final paragraph (a) in a 
manner that clarifies that an applicant may use a reference area for 
purposes of determining revegetation success under Sec.  816.116, but 
that use of a reference area is not required. We find it unnecessary to 
provide further regulatory instruction on selecting reference areas 
because selecting reference areas is a common scientific practice. 
Furthermore, selection of a reference area depends upon site-specific 
factors and the regulatory authority is the best resource for further 
guidance on that matter.
    Paragraph (b)(2) of the final rule, which we proposed as paragraph 
(a)(1), requires that the description and map of vegetation types and 
plant communities be adequate to evaluate whether the vegetation 
provides important habitat for fish and wildlife and whether the 
proposed permit area contains native plant communities of local or 
regional significance. Some commenters requested additional 
clarification about what would constitute a native plant community of 
``local or regional significance,'' while another commenter asked us to 
define ``plant community.'' We did not revise the rule in the manner 
that the commenters requested because ``plant community'' is a commonly 
understood scientific term and because the regulatory authority should 
have the latitude to determine what constitutes a plant community of 
local or regional significance. We encourage the regulatory authority 
to confer with state and federal agencies with responsibilities for 
fish and wildlife in making this determination. One potential resource 
for identifying native plant communities of local or regional 
significance is the Natural Heritage Network, a network of state 
programs that gather and disseminate biological information on species 
of conservation concern and natural plant communities.
    Several commenters expressed concern that the dominance of non-
native species of grasses and forbs and the presence of invasive or 
noxious species would make reestablishment of native plant communities 
challenging, if not impossible. As an example, one commenter provided 
results from the latest Natural Resources Conservation Service's 
National Resource Inventory survey showing that over 50 percent of the 
non-federal native grassland in North Dakota is impacted by non-native 
species and that non-native species cover at least 25 percent of the 
soil surface. The Natural Resources Conservation Service concluded that 
it is impossible to return a site to its historic plant community if 
Kentucky bluegrass comprises more than 30 percent of the vegetation at 
the site.\242\ The Natural Resources Conservation Service's finding 
supports our requirement to avoid non-native, invasive species in 
reclamation and illustrates the value of reestablishing the native 
plant communities unless introduced species are necessary for the 
postmining land use. The Natural Resource Inventory also concluded that 
``[n]on-native invasive plants negatively impact rangeland throughout 
the western United States by displacing desirable species, altering 
ecological and hydrological processes, reducing wildlife habitat, 
degrading systems, altering fire regimes, and decreasing 
productivity.'' \243\
---------------------------------------------------------------------------

    \242\ U.S. Dep't. of Agric. Natural Res. Conservation Service, 
Nation Resources Inventory Report on Non-native Invasive Plant 
Species; available at http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1254898.pdf. (last accessed on Nov. 1, 2016).
    \243\ Roger Shely et al. Invasive Plant Management on 
Anticipated Conservation Benefits: A Scientific Assessment,). 291-
336 (2011). Conservation Benefits of Rangeland Practices: 
Assessment, Recommendations, and Knowledge Gaps (D.D. Briske, ed.). 
U.S. Dep't of Agric., Natural Res. Conservation Serv. (2011).
---------------------------------------------------------------------------

    Commenters requested that we clarify the permissible amount of 
invasive species after the completion of reclamation, especially when 
invasive species are present prior to mining. In response, we added 
paragraph (b)(3) to the final rule. That paragraph requires the 
applicant to identify areas with significant populations of invasive or 
noxious species. Final paragraph (b)(3) provides the regulatory 
authority with the information necessary to determine whether there is 
a potential problem with non-native or noxious species and to decide on 
the appropriate steps to take, such as authorizing unique handling of 
the soil materials as described in Sec.  816.22(f)(1)(ii) of the final 
rule. Section 780.12(g)(1)(xi) of the final rule requires that the 
proposed revegetation plan describe measures that will be taken to 
avoid the establishment of invasive species on reclaimed areas and to 
control invasive species if they are established. The allowable amount 
of invasive species at the time of bond release will depend on multiple 
factors, which we discuss in the performance standards related to 
revegetation success in Sec. Sec.  816.111 through 816.116 of the final 
rule.
    In response to a comment from the U.S. Army Corps of Engineers to 
revise the rule to provide better protection for wetlands, we added 
paragraph (b)(4) to the final rule. That paragraph requires that the 
applicant delineate all wetlands and areas bordering streams that 
support, or are capable of supporting, hydrophytic or hydrophilic 
vegetation or vegetation typical of floodplains. Hydrophytic vegetation 
consists of plants that grow either partly or totally submerged in 
water, while hydrophilic vegetation consists of water-loving plants 
that grow along the margins and banks of rivers and streams. This 
vegetation is indicative of wetlands, which means that vegetation 
information of this nature will proved baseline data to assist in the 
identification and protection of wetlands. This provision also will 
facilitate implementation of Sec.  816.97(e) of the final rule, which 
requires use of the best technology currently available to avoid, 
restore, or replace wetlands and to enhance wetlands where practicable. 
Protection or restoration of wetlands is difficult in the absence of 
information about where those wetlands were originally located and what 
type of vegetation they supported. The requirement for information 
about vegetation bordering streams also will facilitate implementation 
of our stream assessment requirements in Sec.  780.19(c)(6) and our 
streamside vegetative corridor requirements of Sec.  816.57(d)(2)(iii).
    Commenters requested that we specify a timeframe for the 
requirement in proposed Sec.  779.19(a)(2) that the permit applicant 
identify the plant communities that would exist on the proposed permit 
area under conditions of natural succession. Some commenters requested 
that we specify whether the permit applicant must do this for each of 
the particular stages of succession or whether the requirement applies 
only to the climax community. One commenter noted that, given the 
various intensive land uses over the last 200 years and the presence of 
many non-native species, it could be very difficult to know what 
qualifies as ``natural succession'' and urged us to remove this 
requirement. As an example, the commenter questioned whether tallgrass 
prairie would be the

[[Page 93132]]

natural succession community in the Midwest. After evaluating these and 
other comments, we decided not to adopt proposed paragraph (a)(2). We 
replaced proposed paragraph (a)(2) with final paragraph (c), which 
provides that, if the vegetation on the proposed permit area has been 
altered by human activity, the applicant must describe the native 
vegetation and plant communities typical of the area in the absence of 
human alterations. This information should be readily available from 
historical references and may be inferred from surviving remnants of 
natural vegetation in the surrounding area, if those remnants are 
similar to the proposed permit area. The applicant and regulatory 
authority need this information to prepare and review the revegetation 
plan, which must be designed to restore native plant communities, as 
appropriate and consistent with the final rule.
    Proposed Sec.  779.19(b) would have required that the vegetation 
descriptions in the permit application adhere to the National 
Vegetation Classification Standard, while proposed paragraph (c) would 
have allowed use of other generally-accepted vegetation classification 
systems in lieu of the National Vegetation Classification Standard. In 
the preamble to the proposed rule, we invited comment on what other 
classification systems may exist. See 80 FR 44436, 44483 (Jul. 27, 
2015). We received a large number of comments in response to this 
request. Many commenters proposed to keep the systems already in use. 
Other commenters expressed support for the National Vegetation 
Classification Standard and stated that any alternatives should be 
evaluated based in part, on consistency with the National Vegetation 
Classification Standard approach.
    Some commenters opined that the National Vegetation Classification 
Standard is not the best method for classifying vegetation and that the 
decision as to what method to use should be left to the discretion of 
the regulatory authority. Another commenter opined that the regulation 
or preamble should provide direction as to what level of hierarchy in 
the National Vegetation Classification Standard is appropriate for 
applications for coal mining operations. Other commenters questioned 
why proposed paragraph (b) required use of the National Vegetation 
Classification Standard when proposed paragraph (c) allowed the 
regulatory authority to approve other classification systems. One 
commenter suggested revising proposed paragraph (c) by adding 
``provided that the alternative classification is accepted in the 
scientific community suitable for that state or region in which the 
proposed operation is located'' to reduce the potential for abuse of 
the discretion given here to the regulatory authority. Another 
commenter noted that some long-term mining operations may have 
existing, longstanding vegetation data systems and that it would be 
impractical to substitute a new system when the final rule comes into 
effect.
    After evaluating the comments received, we decided not to adopt 
proposed paragraphs (b) and (c). Instead, final paragraph (b)(1) 
provides that the description and map of vegetation types and plant 
communities required under paragraph (a) must be in sufficient detail 
to assist in preparation of the revegetation plan under Sec.  780.12(g) 
and to provide a baseline for comparison with postmining vegetation. 
The regulatory authority will determine which classification system 
best meets the requirements of paragraph (b)(1), other provisions of 
final Sec.  779.19, and the revegetation requirements of Sec. Sec.  
780.12(g) and 816.111 through 816.116. Furthermore, it is not clear 
that the National Vegetation Classification Standard is readily 
adaptable to preparation of descriptions of vegetation types and plant 
communities for purposes of SMCRA. In addition, we agree with those 
commenters who questioned the value of proposed paragraph (b) when 
proposed paragraph (c) would have allowed use of other classification 
systems.
    Proposed paragraph (d) would have required that the permit 
application include a discussion of the potential for reestablishing 
both the premining plant communities and the plant communities that 
would exist on the proposed permit area under conditions of natural 
succession. Some commenters alleged that proposed paragraph (d) would 
serve no purpose, at least in the Midwest where agricultural postmining 
land uses predominate. Because this final rule contains numerous 
requirements for use of native species in revegetation and for 
reestablishment of native plant communities, we do not agree that 
proposed paragraph (d) would serve no purpose. However, proposed 
paragraph (d) is not appropriate for Sec.  779.19, which merely 
requires baseline information on premining vegetation and historical 
plant communities. Nor is it necessary because determination of the 
potential for reestablishment of native plant communities currently or 
formerly found in the area is an implicit element of the revegetation 
plan required under Sec.  780.12(g) of this rule. Therefore, we are not 
adopting proposed paragraph (d) as part of this final rule.

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

    Section 779.20 is intended to ensure that the permit applicant has 
the information needed to design the proposed mining operation in a 
manner that meets the fish and wildlife protection and enhancement 
requirements of the regulatory program. The regulatory authority also 
needs this information to evaluate the probable impacts of the proposed 
mining operation on fish, wildlife, and related environmental values 
for the proposed permit and adjacent areas and to determine whether the 
scope of the proposed fish and wildlife protection and enhancement plan 
is sufficient. Except as discussed below, we have adopted Sec.  779.20 
as proposed, with minor editorial revisions for clarity and 
consistency.
    Several commenters expressed concern that changes to the fish and 
wildlife resource information requirements might increase the amount of 
time it takes to review and process permits, resulting in a need for 
regulatory authorities to hire additional staff. The proposed and final 
rules are similar to the fish and wildlife resource information 
requirements in previous Sec.  780.16(a). They require very little 
additional information. Therefore, we do not anticipate that final 
Sec.  779.20 will have a significant impact on regulatory authority 
resource needs.
Final Paragraph (a): General Requirements
    Proposed paragraph (a), like previous Sec.  780.16(a), provided 
that the permit application must include information on fish and 
wildlife resources for the proposed permit and adjacent areas. The 
Department of Justice requested that we revise this provision to 
clarify that the term ``fish and wildlife resources'' includes all 
species of fish, wildlife, plants and other life forms listed or 
proposed for listing under the Endangered Species Act of 1973, 30 
U.S.C. 1531, et seq. Final Sec.  779.20(a) includes the requested 
revision, which is not substantive.
Final Paragraph (b): Scope and Level of Detail
    As proposed, Sec.  779.20(b) provided that the regulatory authority 
would determine the scope and level of detail for this information in 
coordination with state and federal agencies that have responsibilities 
for fish and wildlife. It also specified that the scope and level

[[Page 93133]]

of detail of the information must be sufficient to design the fish and 
wildlife protection and enhancement plan required under Sec.  780.16. 
We received no comments specific to this provision. Final paragraph (b) 
adopts the proposed rule without change.
Final Paragraph (c): Site-Specific Resource Information Requirements
    Proposed paragraph (c) sets forth requirements for site-specific 
fish and wildlife resource information. At the request of a federal 
agency, we revised proposed paragraph (c)(1), which pertains to species 
listed or proposed for listing under the Endangered Species Act of 
1973, by replacing the phrase ``fish and wildlife or plants'' with 
``species'' and the phrase ``state or private'' with ``non-federal'' to 
be consistent with terminology used in connection with the Endangered 
Species Act. The phrase ``state or private'' might inadvertently 
exclude activities of local and tribal governments and quasi-
governmental agencies.
    Some commenters suggested that we revise paragraph (c)(1) to 
require that the applicant identify cumulative impacts on federally-
listed species. Final paragraph (c)(1) provides that ``the site-
specific resource information must include a description of the effects 
of future non-federal activities that are reasonably certain to occur 
within the proposed permit and adjacent areas.'' That provision is the 
functional equivalent of an analysis of cumulative impacts. Therefore, 
no rule change is necessary. Other commenters asserted that we lack 
authority to require that applicants submit this information to a state 
regulatory authority or to require that a state regulatory authority 
conduct a cumulative effects analysis. According to the commenters, the 
Endangered Species Act only requires such an analysis for federal 
actions. We disagree. As discussed in the preamble for final Sec.  
773.15(j), section 7(a)(1) of the Endangered Species Act provides that 
``[t]he Secretary shall review other programs administered by him and 
utilize such programs in furtherance of the purposes of this Act.'' 
\244\ That would necessarily include using SMCRA to protect species 
listed or proposed for listing as threatened or endangered under the 
Endangered Species Act.\245\ Furthermore, the description of the 
effects of future non-federal activities that final paragraph (c)(1) 
requires is necessary for the regulatory authority to ascertain 
compliance with final Sec.  773.15(j).
---------------------------------------------------------------------------

    \244\ 16 U.S.C. 1536(a)(1).
    \245\ 16 U.S.C. 1531(b).
---------------------------------------------------------------------------

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

    \246\ 50 CFR 402.02 defines ``cumulative effects'' as ``those 
effects of future State or private activities, not involving Federal 
activities, that are reasonably certain to occur within the action 
area of the Federal action subject to consultation.''
---------------------------------------------------------------------------

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

    \247\ 50 CFR 402.02 defines indirect effects are ``those that 
are caused by the proposed action and are later in time, but still 
are reasonably certain to occur'', and ``cumulative effects'' as 
``those effects of future State or private activities, not involving 
Federal activities, that are reasonably certain to occur within the 
action area of the Federal action subject to consultation.''
    \248\ U.S. Fish and Wildlife Serv. and National Marine Fisheries 
Serv., Endangered Species Consultation Handbook: Procedures for 
Conducting Consultation and Conference Activities Under Section 7 of 
the Endangered Species Act, 4-32 (March 1998).
---------------------------------------------------------------------------

    One commenter urged us to require that the application include 
information on habitat for species listed as threatened or endangered. 
Another commenter requested that the rule specifically require 
information about biological communities that do not contain species of 
special concern. According to the commenter, those communities are 
still of interest because they may provide habitat to species that are 
valuable in other ways. Final Sec.  779.19(a)(1) requires that the 
permit application identify, describe, and map existing vegetation 
types and plant communities within the proposed permit area in a manner 
that is adequate to evaluate whether the vegetation provides important 
habitat for fish and wildlife. In addition, final Sec.  779.20(b) 
provides that the regulatory authority must determine the scope and 
level of detail for the fish and wildlife resource information required 
in coordination with state and agencies with responsibilities for fish 
and wildlife. Also, final section 780.16 requires additional action if 
the information required by final Sec.  779.20(b) indicates that the 
proposed permit area or the adjacent area contains species listed or 
proposed for listing as threatened or endangered species under the 
Endangered Species Act or that are designated as critical habitat. As 
one commenter noted, one potential resource for identifying this 
information is the Natural Heritage Program, a network of state 
programs that gather and disseminate biological information on species 
of conservation concern and on natural plant communities. Each state 
Natural Heritage Program would also be an appropriate entity to assist 
the regulatory authority to identify native plant communities of local 
or regional significance. The combination of these requirements should 
ensure that the site-specific resource information includes information 
on habitat under the circumstances described by the first commenter and 
in all other situations in which information on habitat is important.
    A commenter requested that we include specific reference to the 
Natural Heritage Program throughout the final rule, and specifically 
within final Sec. Sec.  779.20 and 783.20, when providing information 
about threatened, endangered, and rare species of plants and animals at 
the state and federal level. The commenter also suggested that evidence 
of any coordination with the Natural Heritage Program or other resource 
agencies be attached to the permit application. While we agree that 
coordination with each states' National Heritage Program can be an 
important step in obtaining information about threatened, endangered, 
and rare species of plants and animals, we decline to require this and 
any evidence of coordination with any National Heritage Program be 
included within the permit application. These requirements are more 
appropriately

[[Page 93134]]

addressed on a case-by-case basis at the discretion of the regulatory 
authority, because each regulatory authority has the appropriate local 
expertise and network of resources to make these decisions. However, we 
do agree that the Natural Heritage Program is an excellent resource for 
information about threatened, endangered, and rare species of plants 
and animals.
    A commenter requested that we define the term ``endemic species'' 
in proposed paragraph (c)(3). Another commenter recommended that we 
clarify that habitat for endemic species should be based on actual 
habitat boundaries rather than state or other jurisdictional boundaries 
that are less relevant from a biological perspective. Final paragraph 
(c)(3) does not include a definition of ``endemic species'' both 
because that term has a commonly understood meaning and because the 
U.S. Fish and Wildlife Service's published glossary of terms related to 
endangered species already defines ``endemic species'' as ``[a] species 
native and confined to a certain region; generally used for species 
with comparatively restricted distribution.'' \249\ The commenter is 
correct that jurisdictional boundaries should not determine whether a 
species is endemic to the area. For example, a species with a small 
distribution within one state but that is widespread throughout the 
rest of the country would not typically be considered endemic, despite 
its low numbers within the state boundaries.
---------------------------------------------------------------------------

    \249\ U.S. Fish and Wildlife Serv. Endangered Species Glossary. 
http://www.fws.gov/endangered/about/glossary.html (last accessed 
Nov. 1, 2016).
---------------------------------------------------------------------------

    Proposed Sec.  779.20(d) contained provisions regarding U.S. Fish 
and Wildlife Service review of the fish and wildlife resource 
information in the permit application. Proposed Sec.  780.16(e) 
contained substantively identical provisions for U.S. Fish and Wildlife 
Service review of the fish and wildlife protection and enhancement plan 
in the permit application. This final rule consolidates proposed 
Sec. Sec.  779.20(d) and 780.16(e) into final Sec.  780.16(e), both to 
streamline the regulations and in response to a comment noting that the 
Service reviews baseline fish and wildlife resource information 
together with the fish and wildlife protection and enhancement plan, 
not separately. The preamble to final Sec.  780.16(e) discusses the 
comments that we received on the provisions of proposed Sec. Sec.  
779.20(d) and 780.16(e) and how we revised the rule in response to 
those comments and discussions with the U.S. Fish and Wildlife Service.
    Proposed Sec.  779.20(d)(2)(iv) provided that the regulatory 
authority may not approve the permit application until all issues 
pertaining to threatened and endangered species are resolved and the 
regulatory authority receives written documentation from the Service 
that all issues have been resolved. Proposed Sec.  780.16(e)(2)(iv) 
contained a substantively identical provision. The final rule 
consolidates both of those proposed rules into final Sec.  780.16(b)(2) 
in revised form. Many commenters characterized this provision of the 
proposed rules as a U.S. Fish and Wildlife Service veto over the SMCRA 
permit. We discuss that comment in Part IV.J., above. The preamble to 
final Sec.  780.16(b)(2) discusses other comments that we received on 
proposed Sec. Sec.  779.20(d)(2)(iv) and 780.16(e)(2)(iv) and the 
revisions that we made in response to those comments and discussions 
with the U.S. Fish and Wildlife Service.
    Proposed Sec.  779.20(e) would have provided that the regulatory 
authority, in its discretion, may use the resource information 
collected under Sec.  779.20 and information gathered from other 
agencies to determine whether, based on scientific principles and 
analyses, any stream segments, wildlife habitats, or watersheds in the 
proposed permit area or the adjacent area are of such exceptional 
environmental value that any adverse mining-related impacts must be 
prohibited.
    We received comments both opposing and supporting proposed 
paragraph (e). Many commenters who supported this provision urged us to 
revise it to categorically prohibit mining in those areas rather than 
to afford discretion to the regulatory authority to do so. However, 
section 522 of SMCRA \250\ establishes the process and criteria for 
categorically designating areas unsuitable for all or certain types of 
mining. Commenters seeking a categorical prohibition should avail 
themselves of the petition process provided under that section of 
SMCRA.
---------------------------------------------------------------------------

    \250\ 30 U.S.C. 1272.
---------------------------------------------------------------------------

    Commenters opposing proposed paragraph (e) challenged our authority 
under SMCRA to adopt such a provision. They also alleged that it could 
result in a compensable taking of mineral interests, that it provides 
too much power to state and federal fish and wildlife agencies, and 
that it could be enormously disruptive and economically costly because 
potential permit applicants would not have reasonable certainty as to 
which portions of the proposed permit area they would be allowed to 
mine. Other commenters noted that section 515(b)(24) of SMCRA,\251\ 
which contains the performance standard for protection of fish and 
wildlife, does not include an express prohibition on mining. Instead, 
it provides that ``to the extent possible using the best technology 
currently available,'' surface coal mining and reclamation operations 
must ``minimize disturbances and adverse impacts of the operation on 
fish, wildlife, and related environmental values.''
---------------------------------------------------------------------------

    \251\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    The counterargument is that section 515(b)(23) of SMCRA provides 
that surface coal mining and reclamation operations must ``meet such 
other criteria as are necessary to achieve reclamation in accordance 
with the purposes of this Act, taking into consideration the physical, 
climatological, and other characteristics of the site.'' \252\ One of 
the purposes of the Act is to ``assure that surface mining operations 
are not conducted where reclamation as required by this Act is not 
feasible.'' \253\
---------------------------------------------------------------------------

    \252\ 30 U.S.C. 1265(b)(23).
    \253\ 30 U.S.C. 1202(c).
---------------------------------------------------------------------------

    Other commenters wanted us to define or otherwise clarify the 
terms, ``exceptional environmental value,'' ``coordination between 
agencies, ``scientific principles and analysis'', and ``consultation'' 
in proposed paragraph (e). They requested clarification on how this 
provision would be applied to regulatory decisions made prior to the 
final rule. They also sought an opportunity for further public comment 
on the meaning of ``exceptional environmental value'' and on how this 
provision would be applied. We also received comments criticizing the 
lack of a definition of ``adverse impacts,'' and inquiring whether this 
term extended to impacts that were short-term or temporary or that 
imposed no permanent change on biota or the ecosystem.
    After evaluating the comments that we received, we decided not to 
adopt proposed Sec.  779.20(e) because avoiding disturbances to 
habitats of unusually high value for fish and wildlife, as described in 
final Sec.  779.20(c)(3), is one of the options provided in final Sec.  
816.97(f). Therefore, there is no need to further discuss or address 
the comments that we received on proposed Sec.  779.20(e). While we are 
not adopting proposed paragraph (e), we encourage states to consider 
doing so under section 505 of SMCRA,\254\ which specifies that any 
state law or regulation that ``provides for more stringent land use and 
environmental controls and

[[Page 93135]]

regulations of surface coal mining and reclamation operations than do 
the provisions of this Act or any regulation issued pursuant thereto 
shall not be construed to be inconsistent with this Act.''
---------------------------------------------------------------------------

    \254\ 30 U.S.C. 1255(b).
---------------------------------------------------------------------------

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

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

    \255\ 80 FR 44436, 44484-44485 (Jul. 27, 2015).
    \256\ In re Permanent Surface Mining Regulation Litig. I, Round 
I (PSMRL I, Round I), 1980 U.S. Dist. LEXIS 17722 at *62 (D.D.C., 
February 26, 1980).
    \257\ 80 FR 44436, 44485 (Jul. 27, 2015) (citing 30 U.S.C. 
1258(a)(2) and 1257(b)(16) and In re Permanent Surface Mining 
Regulation Litig. I, Round I (PSMRL I, Round I), 1980 U.S. Dist. 
LEXIS 17722 at *62 (D.D.C., February 26, 1980)).
    \258\ 30 U.S.C. 1258(a)(2).
    \259\ 30 U.S.C. 1257(b)(16).
---------------------------------------------------------------------------

    Regarding paragraph (a), other commenters indicated that, given the 
predominant land use in some areas of prime farmland and the Natural 
Resources Conservation Service's extensive mapping, a ``reconnaissance 
inspection'' is not necessary to make a determination regarding whether 
prime farmland exists in the permit area. Similarly, other commenters 
expressed concern about the requirement for ``a soils reconnaissance 
inspection'' to determine the presence of prime farmland without 
further guidance regarding what the reconnaissance inspection would 
entail. However, paragraph (a) does not contain any new requirements 
regarding these issues; it merely includes and cross-references 
existing prime farmland regulations within Sec.  785.17 and reiterated 
at Sec.  779.21(e) of the final rule.
    In paragraph (b), we require the permit applicant to include soil 
surveys completed by the Natural Resources Conservation Service. A 
commenter suggested that this information is frequently unavailable on 
federal, state, or tribal lands, and, in situations where such soil 
survey information is available, it is frequently provided as an Order 
4 soil survey and is not sufficiently detailed to be useful without 
substantial interpolation. The commenter recommended that we allow 
Order 2 soil surveys to address reclamation plan needs. For non-prime 
farmland an applicant need only submit soil survey information that 
exists; therefore, if, as the commenter suggests, this soil survey 
information does not exist it would not be required. In the event Order 
4 soil surveys are the only data set available those should be 
submitted; conducting an Order 2 soil survey would not be required if 
such a survey for the proposed permit area does not exist. The purpose 
of this section, and others related to establishing soil condition, is 
to ascertain as much information as possible about the capability and 
productivity of the land prior to mining in order to develop a 
reclamation plan that restores the premining land use capabilities.
    Some commenters opined that proposed paragraph (c) is problematic. 
The commenter stated that relying on descriptions of soil depths taken 
from soil mapping completed by the Natural Resources Conservation 
Service is not reliable because these maps may not accurately reflect 
on-site conditions. Final Sec.  816.22(a)(1)(i) requires mine operators 
to remove and salvage all topsoil and other soil materials. Therefore, 
regardless of whether or not the Natural Resources Conservation Service 
maps are exactly accurate is of secondary consequence because the mine 
operator must remove and salvage these materials as they exist at the 
permit site. For example, if the map indicates that a certain soil type 
contains eight inches of topsoil, but the on-site conditions reveal 
twelve inches of topsoil exist, the mine operator is required to remove 
and salvage all twelve inches of topsoil, not merely the eight inches 
indicated on the map.
    Some commenters also questioned proposed paragraph (f), which 
affords the regulatory authority the opportunity to require whatever 
information it may need to determine land use capability. These 
commenters opined that this paragraph requires applicants to prepare 
the reclamation plan with no guidance regarding what is necessary to 
satisfy this requirement. The commenters misinterpret this regulation; 
it merely states the inherent authority of the regulatory authority to 
determine, on a case-by-case basis, what additional information is 
necessary to assess the land use capability. This provision is 
discretionary with the regulatory authority and provides a regulatory 
authority with the ability to use its best professional judgment to 
require information that may be needed for local conditions or 
circumstances. However, we have modified final rule Sec.  779.21(f) to 
clarify that any other information ``on soils'' that the regulatory 
authority finds necessary to

[[Page 93136]]

determine land use capability may be collected. Moreover, we removed 
the phrase ``and to prepare the reclamation plan'' because the 
regulatory authority does not prepare the reclamation plan.
    A commenter requested that we require more detailed soil 
descriptions because, in the commenter's opinion, more detailed soil 
descriptions are needed to differentiate between the soil horizons (O, 
A, E, B, C, and R) so that they can be properly characterized and 
segregated. Other commenters suggested that we require the retention of 
physical soil core samples and photographs because mischaracterization 
of soil horizons could allow improper mixing of higher quality soils 
with poor soils. We disagree with these comments because the minimum 
requirements as established in our final rule are sufficient to develop 
adequate reclamation plans for the salvage and storage of topsoil and 
other soil horizons as needed to reconstruct a soil medium that will 
support the approved postmining land use. As discussed previously, 
Sec.  779.21(f) allows the regulatory authority to require a greater 
level of detail, if deemed necessary, which could include the 
information suggested by the commenters.
    Another commenter questioned the rationale of expanding the 
requirements for soil information, stating that the proposed rule is 
not supported by science. This commenter did not provide any specific 
information in support of the assertion that this requirement is not 
supported by science. Not only do we disagree with the commenter we 
note that all of the final rule requirements, including soil mapping 
and available surveys, soil depth and quality, are collectively 
necessary to effectively determine the premining capability and 
productivity of the land and to establish the soil salvage, soil 
substitute, and soil replacement requirements to ensure restoration of 
these capabilities and successful establishment of native vegetation. 
Moreover, these requirements are not only consistent with the Act they 
are essential to fulfilling the requirements of the Act.\260\
---------------------------------------------------------------------------

    \260\ See, e.g., 30 U.S.C. 1257(b)(16); 30 U.S.C. 1258(a)(2) and 
(3); 30 U.S.C. 1265(b)(2), (5), (6) and (7).
---------------------------------------------------------------------------

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

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

    \261\ 42 U.S.C. 9601 et seq.; see also 40 CFR part 312.
    \262\ See ASTM 1527-05 and 1527-13.
---------------------------------------------------------------------------

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

    \263\ 30 U.S.C. 1258(a)(2)(B).
---------------------------------------------------------------------------

    We received many comments regarding the proposed requirement at 
Sec.  779.22(b)(3), which would have required the permit applicant to 
provide a narrative analysis of productivity of the proposed permit 
area for fish and wildlife before mining. Many commenters supported 
this requirement, expressing that productivity information was 
essential to establishing a baseline on which impacts to fish and 
wildlife can be

[[Page 93137]]

evaluated and for establishing a reference for reclamation of the area 
to premining conditions. Other commenters alleged that the requirement 
was unclear on the level and scope the analysis must entail and what 
metrics and historical documentation would be necessary. After 
consideration of the comments both supportive and critical of this 
provision, we have determined that this requirement is overly 
burdensome due to the survey effort that would be required to document 
productivity. As expressed in the preamble for the proposed rule, the 
fish and wildlife information required by proposed paragraph (b)(3) 
would have assisted the regulatory authority in evaluating the 
environmental impacts of the proposed operation and in determining the 
fish and wildlife protection and enhancement measures that may be 
appropriate. However, these productivity needs can be adequately met by 
the requirements at Sec. Sec.  779.20(a)-(c) and 783.20(a) through (c) 
to include general and site-specific resource information on fish and 
wildlife resources in the permit application to a level of detail 
determined by the regulatory authority in coordination with state and 
federal agencies with responsibilities for fish and wildlife. 
Therefore, we have eliminated this fish and wildlife productivity 
narrative from the final rule.
    Paragraph (c) allows the regulatory authority the flexibility to 
require other information deemed necessary to determine the condition, 
capability, and productivity of the land within the proposed permit 
area. In the preamble, we noted that this additional information may 
include data about a site's carbon absorption and storage capability. 
Commenters claimed that it is not within the purview of SMCRA authority 
to evaluate the carbon footprint of the proposed operation. We 
disagree. SMCRA clearly allows regulatory authorities to consider the 
effects of the proposed operation on the condition of the land, which 
includes the land's capability prior to any mining.\264\ The capability 
of the land within the proposed permit area could include the land's 
ability to absorb and store greenhouse gases. As indicated in our Draft 
and final EIS, greenhouse gases are sequestered and stored in soils and 
vegetative biomass, which reduces the total amount of carbon present in 
the atmosphere and mitigates the adverse effects of climate change. 
Mining may remove significant amounts of forest cover, which would 
reduce the capability of the land to sequester and store carbon. The 
regulatory authority may want to factor this information into decisions 
concerning an applicants proposed changes in land use, or revegetation, 
including the provisions at final 780.16(d)(3) regarding mandatory 
enhancement measures to address losses of mature native forests.
---------------------------------------------------------------------------

    \264\ See 30 U.S.C. 1258.
---------------------------------------------------------------------------

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

    We proposed to consolidate existing Sec. Sec.  779.24 and 779.25 
into Sec.  779.24 and add a new paragraph (c) to clarify that the 
regulatory authority may require that the applicant submit all 
materials in a digital format that includes all necessary 
metadata.\265\ Except as discussed below, we are adopting, as proposed, 
Sec. Sec.  779.24 and the counterpart at 783.24, related to underground 
mining.
---------------------------------------------------------------------------

    \265\ 80 FR 44436, 44486 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Section 779, pertains to the minimum requirements for information 
on environmental resources and conditions for surface coal mining 
applications. In Sec.  779.24(a)(2), the text mistakenly referred to 
underground mining activities when we meant surface mining activities; 
hence, we replaced the word ``underground'' with the word ``surface'' 
in the final rule text.
    Several commenters requested we revise paragraph (a)(9) to include 
that streams and wetlands within the jurisdiction of the Clean Water 
Act be field delineated, documented, mapped, and then field confirmed 
by the U.S. Army Corps of Engineers. We are not adopting this 
recommendation because we cannot place responsibilities on the U.S. 
Army Corps of Engineers through SMCRA rulemaking. However, as revised, 
our final rule at Sec.  773.5(a) requires that each SMCRA regulatory 
program provide for coordination of review of permit applications and 
issuance of permits for surface coal mining operations with the federal 
and state agencies responsible for permitting and related actions 
under, among other laws, the Clean Water Act. This provision will 
ensure that the U.S. Army Corps of Engineers has an opportunity to 
participate in the SMCRA permitting process to the degree that it deems 
appropriate.
    Commenters expressed concern about the confidentiality of 
information provided to the regulatory authority within proposed 
paragraph (a)(11). In response to these comments, we revised Sec.  
779.24(a)(11), to ensure that this information is kept confidential 
when necessary for safety and security reasons and to protect the 
integrity of the public water supply.
    Another commenter requested clarity about the extent of ``water 
supplies'' that must be mapped as required in this section. As stated 
in proposed paragraph (a)(11), any public water supply and associated 
wellhead protection zone located within one-half mile, measured 
horizontally, of the proposed permit area must be included in maps and, 
when appropriate, in plans and cross sections included in the permit 
application. This section of the rule does not intend for the origin of 
the source waters to be included, but rather the location of the public 
water supply itself. The scale of the map must be sufficient to include 
all pertinent features as required in final rule Sec.   779.24.
    Proposed paragraph (a)(13) requires that the location of any 
discharge, including, but not limited to, a mine-water treatment or 
pumping facility, into or from an active, inactive, or abandoned 
underground mine that is hydrologically connected to the proposed 
permit area or that is located within one-half mile, measured 
horizontally, of the proposed permit area be shown on a map or cross-
section and included in the permit application. In the final rule, we 
have revised the phrase ``hydrologically connected to the proposed 
permit area'' to ``hydrologically connected to the site of the proposed 
operation'' for consistency with final rule Sec.  783.24(a)(13), which 
describes what maps, plans, and cross-sections the operator must submit 
with a permit application for an underground mine. The type of 
information required in this section aids the applicant in preparing 
the determination of the probable hydrologic consequences of mining 
required by section 507(b)(11) of SMCRA \266\ and the regulatory 
authority in preparing the cumulative hydrologic impact assessment 
required by the same provision of the Act and by section 510(b)(3) of 
SMCRA.\267\ Several commenters, including regulatory authorities and 
industry commenters, opined that paragraph (a)(13) did not provide any 
benefit and would result in increased costs. We disagree. The locations 
of any of these types of discharges are necessary for the applicant to 
prepare the determination of the probable hydrologic consequences of 
mining required by section 507(b)(11) of SMCRA,\268\ and for the 
regulatory authority to prepare the cumulative hydrologic impact

[[Page 93138]]

assessment required by the same provision of the Act and by section 
510(b)(3) of SMCRA.\269\ Another commenter was concerned that the 
requirement in paragraph (a)(13) may present private property access 
issues for permit applicants. We acknowledge that lack of landowner 
consent may restrict data collection; however, we anticipate that the 
applicant will make every effort to obtain necessary access from 
private property owners. We also anticipate that the applicant will 
coordinate with the regulatory authority to rectify this issue, and, at 
the very least, document the inability to access the private property 
because of a refusal by the property owner to provide permission.
---------------------------------------------------------------------------

    \266\ 30 U.S.C. 1257(b)(11).
    \267\ 30 U.S.C. 1260(b)(3).
    \268\ 30 U.S.C. 1257(b)(11).
    \269\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Proposed paragraphs (a)(18) and (20) included a requirement to 
submit geographic coordinates of test borings, core samplings, and 
monitoring stations. One commenter stated that these requirements would 
require field surveying which would add significant costs to the 
application process and that coordinates derived through the use of 
appropriate software could provide greater accuracy than hand-held 
field devices. Proposed paragraphs (a)(18) and (20) do not specify the 
means that must be used to obtain the geographic coordinates, only that 
the coordinates need to be included in the permit application. The use 
of hand-held global positioning system field devices is acceptable, but 
the use of appropriate geospatial software and publicly available 
imagery is also acceptable and provides accurate data. We have not 
modified the final rule in response to this comment.
    Proposed paragraph (a)(19) expands upon the requirement in existing 
section 779.25(a)(6), which requires maps showing the location and 
extent of subsurface water, if encountered. The expanded application 
requirements of the proposed rule would also require all mining 
applications for both surface and underground mines to identify 
aquifers; this requirement is currently only applicable to underground 
mines under existing Sec.  783.25(a)(6). We also proposed to require 
that the application include the areal and vertical distribution of 
aquifers and a portrayal of seasonal variations in hydraulic head in 
different aquifers. In addition, proposed paragraph (a)(19) includes a 
requirement for the estimated elevation of the water table required by 
section 507(b)(14) of SMCRA.\270\ Two commenters stated that the 
requirement in paragraph (a)(19) to provide the areal and vertical 
extent of aquifers on a map provided no benefit and would result in 
increased costs. Maps showing the areal and vertical extent of aquifers 
are needed to accurately assess the extent of groundwater within the 
proposed permit and adjacent areas so that the regulatory authority can 
conduct an adequate assessment of the hydrology so that it can ensure 
the proposed coal mining operation will minimize disturbance of the 
hydrologic balance inside the permit area and adjacent areas and 
prevent material damage to the hydrologic balance outside the permit 
area. Another commenter stated that it would prefer the option to use 
maps instead of cross-sections to show the data required by paragraph 
(a)(19). In consideration of this comment, we agree that it is prudent 
to allow the applicant the flexibility, in consultation with the 
regulatory authority, to select the most appropriate means of supplying 
this information in the permit application. Therefore, paragraph (19) 
has been revised to allow for the information to be provided on 
appropriately-scaled cross-sections or maps, in a narrative, or a 
combination of these methods.
---------------------------------------------------------------------------

    \270\ 30 U.S.C. 1257(b)(14).
---------------------------------------------------------------------------

    To provide clarity, we further revised paragraph (a)(19) of the 
final rule to replace ``portrayal of seasonal variations'' with 
``maximum and minimum variations.'' The modification clarifies it is 
the range in variations in hydraulic head that is needed to provide 
meaningful information relative to individual water level measurements. 
We also omitted the word ``estimated'' concerning the elevation of the 
water table in the aquifers to clarify that the elevations must be 
based on groundwater data collected from the site rather than on an 
estimation of the levels based on other sources. Finally, we revised 
``location and extent of subsurface water, if encountered'' to 
``location and extent of any subsurface water encountered'' to clarify 
that the intent is to record the presence of any subsurface water 
encountered within the proposed permit and adjacent areas.
    In paragraph (a)(21), we proposed to add a requirement that any 
coal or rider seams located above the coal seam to be mined also be 
identified in this section. However, this requirement was removed from 
the final rule due to a redundancy with requirements in Sec.  
780.19(e)(3). Likewise, the requirement in paragraph (a)(23) to 
identify the location and extent of known workings of underground mines 
underlying the proposed permit and adjacent areas are removed in the 
final rule due to redundancy with Sec.  783.24(a)(23).
    In paragraph (a)(27), we proposed to add a requirement that the 
application identify all directional or horizontal drilling for 
hydrocarbon extraction operations, including those using hydraulic 
fracturing methods, within or underlying, the proposed permit and 
adjacent areas. A few commenters objected to the addition of this 
requirement. These commenters pointed to the difficulty in obtaining 
the information as it is often proprietary information or would 
otherwise be time consuming to acquire. The commenters also noted that, 
at least in western states, this type of drilling generally occurs in 
zones well below the depth of coal mines and potable water aquifers. 
Some commenters suggested that the regulatory authority should have the 
flexibility in determining if this information is necessary. We agree 
to an extent. We have removed any specific references to directional or 
horizontal drilling as this requirement applies to all oil and gas 
wells regardless of whether they are conventional or unconventional. In 
addition, we included a requirement that the lateral extent of the well 
bores must be provided unless that information is confidential under 
state law. However, as required in previous Sec.  779.25(a)(10), some 
information related to oil and gas wells is necessary for both the 
applicant and the regulatory authority to fully evaluate the impacts of 
the potential mining and reclamation activities with regard to the 
existence of these types of wells within the proposed and adjacent 
areas. Mining and reclamation activities must be planned appropriately 
to accommodate the presence of these structures; therefore, the 
locations of the wells, and in many instances the depths, must be known 
prior to the development of the mining plan. In recognition that the 
well completion information may be confidential, the final rule 
includes the qualifier, ``if available,'' relative to the depth 
information and we have required the lateral extent of the well bores 
to be provided unless that information is confidential under state law.
    With regard to paragraph (c)--the new paragraph we proposed related 
to digital submittal of information--we invited comment on whether the 
digital format option should be mandatory to facilitate review by both 
the public and the regulatory authority instead of allowing the 
regulatory authority discretion in determining the format that the 
operator is required to submit their data. One commenter suggested that 
we require all regulatory authorities to post online all mine permit 
applications and associated

[[Page 93139]]

files. Several commenters were in favor of making this requirement 
mandatory; however, another commenter suggested that the final rule 
should not require the digital format option for all materials 
submitted to regulatory authorities because there are instances where 
published maps are utilized and metadata may not be available. We agree 
with the commenter's rationale; thus, there were no changes made to 
paragraph (c) in the final rule.

Previous Sec.  779.25: Cross Sections, Maps, and Plans

    We have removed and reserved previous Sec.  779.25 for the reasons 
discussed in the final rule.\271\
---------------------------------------------------------------------------

    \271\ 80 FR 44436, 44486 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

Section 780.1: What does this part do?

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

Section 780.2: What is the objective of this part?

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

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

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

Section 780.10: Information Collection

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

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

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

Section 780.12: What must the reclamation plan include?

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

    \272\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    One commenter stated that the whole section implies that these 
programs have not been successful in returning lands to approximate 
original contour and in repairing lands and waters damaged by pre-SMCRA 
mining. We disagree. Reclamation has been successfully accomplished in 
many instances. However, reclamation techniques can be improved as the 
regulatory authorities, mine operators, and the scientific community 
learns more about successful reclamation. For instance, the Forestry 
Reclamation Approach of planting shrubs and trees in soil that is not 
compacted has thoroughly changed how this industry returns forests to 
mine sites. Additionally, eliminating or limiting the use of non-
native, invasive grasses has improved native reclamation in arid areas. 
The rule that we are adopting today promotes the use of these and other 
best practices in the field of reclamation and will benefit native 
species, communities, and ecosystems both within and beyond the 
permitted site.
Final Paragraph (b): Reclamation Timetable
    Section 780.12(b) contains a requirement that applicants submit a 
timetable for reclamation activities which constitute major steps in 
the reclamation process, including, but not limited to: The planting of 
all vegetation in accordance with the revegetation plan approved in the 
permit (including establishing appropriate vegetation bordering 
perennial, intermittent, and ephemeral streams); demonstrating 
revegetation success and the restoration of the ecological function of 
all reconstructed perennial and intermittent stream segment; and 
applying for each phase of bond release under section 800.42.
    Several commenters expressed concern that these new requirements 
will place operators in a position to fail or force them into 
noncompliance, if, despite their best efforts, they do not meet the 
proposed timetables for demonstration of revegetation success, 
restoration of the ecological function of all reconstructed perennial 
and intermittent stream segments, or application for each phase of bond 
release. In addition, these commenters claim that establishing a 
timetable for completion of these activities, including the return of 
ecological function to streams, is unrealistic and that these new 
requirements would remove the discretion from regulatory authorities to 
require items they determine are important on a case-by-case basis. We 
disagree. The current rules already require ``a detailed timetable for 
the completion of each major step in the reclamation plan'' within 
Sec.  780.18(b)(1). This section now lists the major steps that, at a 
minimum, must be included in the timetable. The rule provides the 
regulatory authority with flexibility to require additional steps at 
its discretion. Moreover, these minimum standards help implement 
various provisions of SMCRA including, but not limited to: section 
507(d) of SMCRA, which provides that ``[e]ach applicant for a permit 
shall be required to submit to the regulatory authority as part of the 
permit application a reclamation plan which shall meet the requirements 
of this Act''; \273\ section 508(a)(4), which requires ``a detailed 
description of how the proposed postmining land use is to be achieved 
and the necessary support activities which may be needed to achieve the 
proposed land use''; \274\ section 508(a)(7), which requires a 
detailed, estimated timetable for the accomplishment of each major step 
in the reclamation plan''; \275\ and section 515(b)(16), which requires 
that mining operations ``insure that all reclamation efforts proceed in 
an environmentally sound manner and as contemporaneously as practicable 
with

[[Page 93140]]

the surface coal mining operations.\276\ Additionally, permit 
documents, such as reclamation plans, are allowed to be updated, and 
frequently are. Reclamation schedules can be revised as needed during 
the course of mining as long as the regulatory authority finds the 
adjustment acceptable under section 511(a) of SMCRA.\277\ This process 
should protect operators in situations where, despite their best 
efforts, they cannot meet the original reclamation schedule. No changes 
were made as a result of these comments.
---------------------------------------------------------------------------

    \273\ 30 U.S.C. 1257(d).
    \274\ 30 U.S.C. 1258(a)(4).
    \275\ Id. at (a)(7).
    \276\ 30 U.S.C. 1265(b)(16).
    \277\ 30 U.S.C. 1261(a).
---------------------------------------------------------------------------

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

    \278\ 30 U.S.C. 1258(a)(7).
---------------------------------------------------------------------------

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

    \279\ Id. at 1258(a)(13).
---------------------------------------------------------------------------

    This modification reflects the different requirements for 
restoration of ``form'' of perennial and intermittent streams that must 
occur prior to Phase I bond release, discussed in the preamble of 
Sec. Sec.  800.42(b) and 816.57(e) and the postmining surface drainage 
pattern and stream-channel configuration requirements related to 
ephemeral streams discussed in Sec. Sec.  800.42(b) and 816.56(b), that 
also must occur prior to Phase I bond release.
    We have also modified paragraph (b)(5). As proposed, this paragraph 
merely required ``planting.'' Some commenters alleged that this was 
nebulous. We agree with these commenters and have revised the paragraph 
to clarify that the establishment of appropriate vegetation includes 
the establishment of 100-foot wide, streamside, vegetative corridors 
when required by Sec.  816.56(c), which relates to ephemeral streams, 
and Sec.  816.57(d), which relates to perennial and intermittent 
streams and to clarify that the reclamation plan must include a 
timetable for the planting of all vegetation including vegetation along 
the banks of streams. Furthermore, this requirement, as revised, 
complements the requirements of Sec.  800.42(c), which relates to Phase 
II bond release.
    We also modified proposed (b)(7) for clarity and consistency with 
final rule Sec. Sec.  816.57(g) and 800.42, which relate to the 
requirements and timing of achieving restoration of ecological function 
of all reconstructed perennial and intermittent stream segments. At 
paragraph Sec.  780.12(b)(7), we have clarified that applicants must 
include as part of their timetable a ``demonstration'' that restoration 
of ecological function will be achieved. This is a change from the 
proposed rule, which required ``restoration of the ecological 
function,'' and could have been interpreted as referring to the 
performance of reclamation work rather than to the time when that work 
must be completed. Actual restoration, as required in the performance 
standard of Sec.  816.57(g), must occur prior to Phase III bond 
release. Our intent here is that the timetable establishes a point at 
which the permittee must demonstrate that ecological function has been 
restored.
    Several commenters requested that we require a qualified biologist 
or ecologist to provide written attestation to any stream restoration 
plans and any bond release that includes a restored stream. We did not 
modify the final rule in response to these comments. Our final rule 
incorporates sufficient scientific expertise and success standards. For 
instance, final rule Sec.  780.12(g)(6) now includes the requirement 
that a qualified, experienced biologist, soil scientist, forester, or 
agronomist must prepare or approve the revegetation plan, which 
includes the vegetation found within the streamside vegetative 
corridor. Similarly, all reclamation plans described within final Sec.  
780.13(b) must be prepared by, or under the direction of, and certified 
by a qualified registered professional engineer, a professional 
geologist, or, in any state that authorizes land surveyors to prepare 
and certify maps, plans, and cross-sections, a qualified registered 
professional land surveyor, with assistance from experts in related 
fields such as landscape architecture. These requirements ensure the 
use of experts in establishing the plans for reclamation. Within 
Sec. Sec.  816.111(b) and 817.111(b), we require these plans to be 
followed, and within Sec. Sec.  816.116(d) and 817.116(d), we require a 
scientifically derived success standard for all revegetation. In 
addition, regulatory authorities have the expertise and protocols 
necessary to analyze permit documents and bond release evidence, 
including those in place within Sec. Sec.  780.12(b) and 800.42(b)(4). 
Therefore, this final rule incorporates sufficient scientific expertise 
and success standards and requiring a qualified biologist or ecologist 
to provide written attestation of any stream restoration plans and any 
bond release is not

[[Page 93141]]

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

    \280\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

Final Paragraph (c): Reclamation Cost Estimate
    Commenters alleged that by only requiring the reclamation to 
include the standardized construction cost estimation methods and 
equipment cost guides, the proposed rule did not adequately address all 
the factors and costs involved in completing reclamation. Many of these 
commenters use actual cost methods which take in more local factors, 
conditions, and circumstances. After consideration of this comment, we 
have added language to the final rule to allow applicants to use ``up-
to-date actual contracting costs incurred by the regulatory authority 
for similar activities'' in lieu of more broad-based standardized 
construction costs.
    A commenter also questioned the lack of definitions of ``direct'' 
and ``indirect'' costs. We do not believe that ``direct and indirect'' 
costs need to be defined within the regulatory text because they are 
relatively common terms. Another commenter stated that indirect costs 
should not be included as they are irrelevant to the cost of 
reclamation and the calculation of bonds. Indirect cost amounts are 
relevant to bond calculations, as those costs are related to 
administration and overhead. In the event that the regulatory authority 
must forfeit bonds for the purpose of carrying out reclamation plans in 
lieu of the mine operator, costs of a third-party contractor to 
implement the plan, including overhead cost and profit must be 
included. Therefore, we determine that the inclusion of indirect costs 
is essential to an adequate bond calculation. We have made no changes 
based on these comments.
Final Paragraph (d): Backfilling and Grading Plan
    This section of the final rule adds greater specificity to the 
backfilling and grading plan, requiring a description of how the 
operator will compact spoil to reduce infiltration, minimize leaching 
and discharges of parameters of concern, limit the compaction of 
topsoil and soil materials in the root zone to the minimum necessary to 
achieve stability, and identify measures that will be used to alleviate 
soil compaction if necessary. The final rule also requires, if acid-
forming and toxic-forming materials are present, a description of how 
the operator will handle these materials to protect groundwater and 
surface water in accordance with Sec.  816.38 of this chapter.
    Some commenters argued that implementation of the Forestry 
Reclamation Approach by itself would not reduce elevated conductivity 
levels resulting from mountaintop removal mining operations to the 
point at which those levels would no longer damage aquatic life. We 
acknowledge that the comment is correct. However, as discussed in the 
preamble to the proposed rule, there is evidence that the use of the 
Forestry Reclamation Approach will reduce levels of conductivity 
progressively over time.\281\ In addition, our final rule includes 
other measures to address conductivity. The final rule includes a 
definition of ``material damage to the hydrologic balance outside the 
permit area'', in Sec.  701.5; requires baseline information on 
conductivity in Sec.  780.19, requires that the backfilling and grading 
plan describe in detail how spoil will be compacted to reduce 
infiltration and minimize leaching in Sec.  780.12(d)(2)(i); requires 
the elimination of durable rock fills in Sec.  816.71(g); and requires 
that excess spoil be placed in a manner that will minimize adverse 
effects of leachate and runoff on groundwater and surface water, 
including aquatic life in Sec.  816.71(a)(1)).
---------------------------------------------------------------------------

    \281\ Kenton L. Sena, Influence of Spoil Type on Afforestation 
Success and Hydrochemical Function on a Surface Coal Mine in Eastern 
Kentucky (2014). Theses and Dissertations--Forestry. Paper 16, pp. 
39 and 60. See http://uknowledge.uky.edu/forestry_etds/16/ (last 
accessed Nov. 1, 2016).
---------------------------------------------------------------------------

    Proposed paragraph (d)(1) included a sentence stating, ``You must 
limit compaction to the minimum necessary to achieve stability 
requirements unless additional compaction is needed to reduce 
infiltration to minimize leaching and discharges of parameters of 
concern.'' However, we have concluded that this sentence does not 
properly reflect our intent, which was to minimize compaction of soil 
materials in the root zone, while still requiring compaction of spoil 
in order to minimize conductivity levels in leachate and runoff from 
the mine. Therefore, the final rule replaces that sentence with 
paragraphs (d)(2)(i) and (ii). Paragraph (d)(2)(i) requires that the 
backfilling and grading plan describe in detail how spoil will be 
compacted in order to reduce infiltration to minimize leaching and 
discharges of parameters of concern. Paragraph (d)(2)(ii) requires that 
the backfilling and grading plan limit compaction of topsoil and soil 
materials in the root zone to the minimum extent necessary to achieve 
stability. The plan also must identify measures that the permittee will 
use to alleviate soil compaction if it nonetheless occurs. These 
changes better reflect our intent to minimize both compaction and 
conductivity levels.
    Some commenters alleged that there was an apparent contradiction 
between our emphasis on using compaction to ensure stability and reduce 
leaching and our attempts to limit compaction that impedes 
revegetation. Moreover, some commenters opined that our requirements 
related to compaction are impractical as proposed. These commenters 
stated that our standards for limiting compaction are not supported by 
scientific evidence and will require a significant engineering analysis 
by the regulatory authority to determine what the compaction standard 
should be on various portions of the permit. Additionally, one 
commenter in particular stated that the language in this paragraph 
requiring that compaction of backfills be minimized, except as needed 
to reduce infiltration and minimize leaching and discharges, is 
inconsistent with the requirements of Sec.  816.38(a), which requires 
compaction to prevent acid-forming materials from leaching into the 
soil. In response to these comments, we have made changes to the final 
rule at Sec.  780.12(d)(1) and (2) to clarify when compaction must be 
used to minimize infiltration, leaching, and related discharges and 
when compaction is problematic because it impedes revegetation. 
However, we disagree with the commenters who stated that the 
requirement to minimize compaction within the root zone is not 
supported by scientific evidence. In reclamation projects across the 
nation, limiting compaction resulted in increased reclamation success 
(e.g., Forestry

[[Page 93142]]

Reclamation Approach,\282\ Extreme Surface Roughening),\283\ and 
supporting evidence for this can be found on SMCRA permitted sites as 
well as within performance reports, annual reports, and other 
publications authored by us and other SMCRA regulatory authorities.
---------------------------------------------------------------------------

    \282\ Jim Burger et al. The forestry reclamation approach. 
Forest Reclamation Advisory 2 (December 2005).
    \283\ Mary Ann Wright. The practical guide to reclamation in 
Utah. Utah Oil, Gas & Mining Division, Univ. of Utah, (2000).
---------------------------------------------------------------------------

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

    \284\ Margaret Palmer et al., Mountaintop Mining Consequences. 
327 (5962) Science 148-149.
    \285\ Margaret Palmer & Emily Bernhardt, Mountaintop Mining 
Valley Fills and Aquatic Ecosystems: A Scientific Primer on Impacts 
and Mitigation Approaches. Working paper: 24 (2009).
---------------------------------------------------------------------------

    Another commenter alleged that the requirement to limit compaction 
to the minimum extent necessary to achieve stability was ambiguous and, 
as a result, it would be difficult for the regulatory authority to 
evaluate and monitor compliance in the field due to contradictory 
compaction requirements. We recognize that permit requirements about 
under-compaction and over-compaction were combined in the proposed 
rule, possibly leading to confusion. For clarity, they have been 
separated into paragraphs (d)(2)(i) and (d)(2)(ii) in the final rule.
    Commenters asserted that the submission of contour maps in 
paragraph (d)(1) as part of the backfilling and grading plan is of 
limited use and would need to be continually adjusted to reflect 
changes in market conditions, in geology, or in other on-site factors. 
These commenters allege that cross-sections are a better tool for 
making adjustments to the final surface configuration, including 
drainage patterns, compared to typical cross-sections, which the 
commenters claim, have worked best. We are not making any changes to 
the final rule in response to these comments. Compliance with goals of 
protecting streams and achieving the approximate original contour can 
best be judged through the use of contour maps, which offer more detail 
than a two dimensional cross-section alone. While not every change in a 
reclamation plan would require a new contour map, at a certain point, 
using only cross sections to document revised reclamation plans could 
cause both regulatory authorities and operators to miss potentially 
significant changes in the configuration of the reclaimed land's 
surface, changes that, cumulatively or individually, could 
significantly impact the achievement of approximate original contour 
and the restoration of streams. As an example, poorly located two 
dimensional cross-sections could mask problems with the location and 
shape of the streams that are supposed to be restored, a problem that 
would not occur with a three dimensional contour map. Regulatory 
authorities need to use the best tool for determining whether streams 
are being appropriately restored to form and whether approximate 
original contour is being addressed as changes are made to the approved 
reclamation plan. Contour maps are essential to making those 
determinations. However, we do not allege that cross-sections are 
unnecessary. Contour maps and cross sections are complementary tools 
and regulators should use both to evaluate changes to reclamation plans 
and to monitor compliance.
Final Paragraph (e)(1): Soil Handling Plan--General Requirements
    We proposed in paragraph (e)(1)(i) to require that the soil 
handling plan include a schedule for removal, storage, and 
redistribution of topsoil, subsoil or other materials including the use 
of organic matter. Numerous commenters weighed in on aspects of this 
proposed requirement. Several commenters stated that leaving certain 
organic materials, such as duff and root wads, in replaced topsoil is 
not beneficial for agricultural lands and may result in difficulty 
establishing the vegetation and plant crops that are necessary to prove 
productivity for bond release. Other commenters expressed concern that 
the use of organic material could elevate total suspended solids and 
total dissolved solids, slow reclamation and revegetation, and disrupt 
surface owner priorities and postmining land use plans. Still other 
commenters claimed that the proposed rule did not allow regulatory 
authorities the flexibility to waive these requirements. We agree with 
the commenters that it would be counterproductive to mandate the use of 
organic materials on land where those materials would interfere with 
the success of the approved postmining land use. Instead of making 
changes to this section, however, we have revised Sec.  816.22(f) to 
incorporate flexibility into the performance standards related to the 
salvage, storage, and redistribution of organic material. Specifically, 
the language we added to Sec.  816.22(f)(3) clarifies that the use of 
organic materials in certain agricultural areas is not required. 
Because the use of organic materials in reclamation substantially 
outweighs the disadvantages, however, we have not made revisions to 
other regulations that govern the use of these materials.
    Another commenter alleges that the preamble to the proposed rule 
contains conflicting statements. The commenter alleges that in the 
discussion of organic matter we state that these materials are 
necessary to establish pre-existing plant species to restore land use, 
but this is in conflict with our statement that vegetative cover has 
nothing to do with land use capability. The commenter misinterprets the 
proposed rule preamble discussion because there is no

[[Page 93143]]

statement that the use of organic material is necessary to restore land 
use capability, either by itself or to promote the revegetation of pre-
existing plant species. We conclude that the commenter erred by 
incorrectly referencing our proposed preamble discussion at paragraph 
(e)(1)(ii), where we discussed the salvage and distribution of soil 
necessary to restore land use capability, with the proposed preamble 
discussion of organic matter found at paragraph (e)(1)(i). Within the 
preamble about proposed paragraph (e)(1)(i) we discussed premining land 
use capability, but did not specifically refer to the use of organic 
materials as the commenter alleges.
    One commenter opined that requiring storage and redistribution of 
organic matter exceeds our authority because, according to the 
commenter, SMCRA limits our authority to the removal and replacement of 
topsoil. We disagree. As we explained in the preamble to our proposed 
rule,\286\ the use of organic matter assists in satisfying the 
requirement of section 515(b)(19) of SMCRA \287\ to establish a 
diverse, effective, and permanent vegetative cover of the same seasonal 
variety native to the area; therefore, this requirement is fully within 
our authority. Organic matter contributes to enhancing postmining land 
use capability, enhances revegetation diversity, and aids in 
establishing permanent vegetative ground cover of the same seasonal 
variety native to the area as required for the postmining land use. 
However, as discussed in more detail throughout this preamble, the 
distribution of organic matter is not required when it conflicts with 
certain postmining land uses.
---------------------------------------------------------------------------

    \286\ 80 FR 44436, 44488-4489 (Jul. 27, 2015).
    \287\ 30 U.S.C.1265(b)(19).
---------------------------------------------------------------------------

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

    \288\ Peter Stahl, Accumulation of Organic Carbon in Reclaimed 
Coal Mine Soils of Wyoming; http://asmr.us/Publications/Conference%20Proceedings/2003/1206-Stahl.pdf (last accessed Nov. 1, 
2016) and J.A. Harris, The Impact of Storage of Soils during 
Opencast Mining on the Microbial Community: A Strategist Theory 
Interpretation; http://onlinelibrary.wiley.com/doi/10.1111/j.1526-100X.1993.tb00014.x/abstract (last accessed Nov.1, 2016).
---------------------------------------------------------------------------

    Some commenters discussed potential unintended consequences of the 
proposal to require salvage and storage of organic materials. In 
general, the commenters state these requirements are too prescriptive 
and create more problems than they resolve. More specifically, several 
commenters contended that this requirement would lead to additional 
transportation and storage of organics. Some commenters contended that 
the need for extra storage acres appeared to be at cross-purposes with 
one of the purposes of the proposed rule--to minimize surface 
disturbance when possible. Other commenters expressed concern that 
saving organic material in steep slope areas is challenging and may be 
an unsafe practice which may put workers at risk. Commenters also 
argued that the regulatory authorities should have discretion to 
determine what is best for these materials, given the terrain.
    If it is feasible to mine in steep sloped areas, operators should 
also be capable of safely excavating and salvaging these materials. 
While we recognize that the handling of organic matter has some 
potential for requiring some additional surface disturbance, as 
previously cited, the benefit gained by utilizing organic matter as 
part of reclamation far outweighs negative impacts associated with 
disturbing additional acres. Because of these benefits, we are 
retaining the requirement to salvage, store, and redistribute the 
organic material. We added language to the final rule to ensure that 
the requirements which govern the placement of organic matter do not 
conflict with certain agricultural or other postmining land uses. 
Additionally, in locations where significant populations of invasive 
plant species are documented, those organic materials may be buried, 
but not burned, as provided for in Sec. Sec.  816.22(f)(3)(iii) and 
816.22(f)(4).
    We proposed to require that three soil horizons, topsoil, B 
horizon, and C horizon, be removed, segregated, stockpiled, and 
redistributed to achieve the optimal rooting depth as a final growing 
medium. We received many comments on this proposal. Several commenters 
argued that this requirement would place an unnecessary burden on state 
regulatory authorities because the regulatory authorities would expend 
more time reviewing the soil handling plan and significantly more time 
inspecting the operation to ensure the proper removal and replacement 
of all three horizons. One commenter asserted that successful soil 
restoration has been achieved in instances where soil horizons were 
mixed. Another commenter referenced circumstances where some soil 
horizons, including some topsoil, can demonstrate characteristics 
adverse to soil reconstruction and reestablishing vegetation. 
Specifically, the commenter referenced soils with unfavorable sodium 
content and some topsoil that is salt-affected, and advocated that 
these should not be salvaged or spread again. Another commenter noted 
that this portion of the proposed rule appeared to be based upon 
achieving reforestation on Appalachian mines and may not be appropriate 
in other parts of the country. Some commenters opposed proposed 
paragraph (e)(1)(ii), which specified that the reclamation plan must 
require the removal, segregation, stockpiling, and redistribution of 
the B and C soil horizons and materials other than topsoil in order to 
achieve the optimal rooting depths required to restore premining land 
use capability and to comply with revegetation requirements. They 
alleged that the proposed rule is inconsistent with paragraphs (b)(5) 
through (7) of section

[[Page 93144]]

515 of SMCRA,\289\ which require salvage and redistribution soil 
materials, other than topsoil, only for prime farmland and in 
situations in which the subsoil or other materials have been approved 
as a topsoil substitute. They asserted that requiring the salvage of 
subsoil or other materials for anything other than prime farmland is 
not supported by SMCRA. As we explained in the preamble to our proposed 
rule, scientific studies have determined that an adequate root zone is 
critical to plant growth and survival, and that topsoil alone generally 
does not provide an adequate root zone. See 80 FR 44488-44489 (Jul. 27, 
2015). These studies document that salvage and redistribution of 
topsoil alone will not necessarily restore the mine site to a condition 
in which it is capable of supporting the uses that it was capable of 
supporting before any mining, as required by section 515(b)(2) of 
SMCRA.\290\ Therefore, salvage and redistribution of subsoil and other 
soil materials will be necessary on sites other than prime farmland in 
order to meet the requirements of section 515(b)(2) \291\ of SMCRA. 
Consistent with this rationale, the final rule differs slightly from 
the proposed rule in that final 30 CFR 780.12(e)(1)(ii) requires 
salvage, stockpiling (if necessary), and redistribution of the B and C 
soil horizons and other underlying strata only ``to the extent and in 
the manner needed'' to achieve the optimal rooting depths required to 
restore premining land use capability and to comply with revegetation 
requirements. Addition of the qualifier ``if necessary'' with respect 
to stockpiling reflects the fact that stockpiling may not be needed if 
salvaged materials can be immediately redistributed on backfilled 
areas.
---------------------------------------------------------------------------

    \289\ 30 U.S.C. 1265(b)(5) through (7).
    \290\ 30 U.S.C. 1265(b)(2).
    \291\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

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

    \292\ Carl E. Zipper et al., Rebuilding Soils on Mined Land for 
Native Forest in Appalachia, 77 Soil Sci. Am. J. 337-349 (2012).
    \293\ Alberta Transp. Alberta Transportation Guide to Reclaiming 
Borrow Excavations, p. 5-6 (December 2013).
---------------------------------------------------------------------------

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

    \294\ 30 U.S.C. 1258(a)(2)(B).
    \295\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Several commenters objected to the proposed requirement to develop, 
as part of the reclamation plan, a soil handling plan that will restore 
the land to premining capability. These commenters indicated that it 
would be better to design a soil handling plan to accommodate the 
approved postmining land use provided for in Sec.  816.111 of our 
regulations because the regulatory authority measures the success of 
the reclamation by achievement of that use. Commenters further alleged 
that the proposed rule would lead to confusion because, prior to this 
rule, reclamation success has always been determined by the ability to 
achieve the approved postmining land use.
    We disagree. Section 515(b)(2) of SMCRA \296\ requires that mine 
operators ``restore land affected to a condition capable of supporting 
the uses which it was capable of supporting prior to any mining. . . 
.'' Section 508(a)(2) of SMCRA requires that the reclamation plan in 
the permit application demonstrate that the reclamation can be 
successfully accomplished.\297\ This requires the regulatory authority 
to assess of the capability of the land to support a variety of uses 
prior to any mining.\298\ This assessment must include an assessment of 
the premining physical characteristics of the land and a determination 
regarding the various land uses the site would be able to support. 
Although revegetation success standards are essential to determining 
whether the postmining land use has been attained, revegetation alone 
does not ensure that reclamation has restored the land's capability to 
support the uses it was determined capable of supporting prior to any 
mining. If prior to any mining the land had significant physical 
restrictions or limitations due to, for example, slope or natural 
soils, the postmining reclamation might be limited. If, however, the 
land had few physical limitations and was capable of supporting a wide 
variety of uses prior to any mining, the land must be capable of 
supporting the same variety of uses after reclamation.
---------------------------------------------------------------------------

    \296\ 30 U.S.C. 1265(b)(2).
    \297\ 30 U.S.C. 1258(a)(2)(B).
    \298\ Id.

---------------------------------------------------------------------------

[[Page 93145]]

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

    \299\ 80 FR 44436, 44489-44490, (Jul. 27, 2015)).
    \300\ 30 U.S.C. 1265(b)(5).
    \301\ 30 CFR 1265(b)(5).
    \302\ 30 U.S.C. 1265(b)(2).
    \303\ Alberta Transp. Alberta Transportation Guide to Reclaiming 
Borrow Excavations, p. 5-6, (December 2013).
---------------------------------------------------------------------------

    Commenters further stated that the proposal to require the ``best 
materials'' available is unnecessarily restrictive, places an 
unnecessary burden on regulatory authority resources, and requires more 
monitoring with little benefit. We disagree. The use of the best 
materials available will ensure better reclamation. Additionally, while 
we have raised the threshold on what materials may be considered as an 
acceptable substitute for subsoil, the process for using substitutes is 
essentially the same and should place no greater burden on regulatory 
staff. As such, we are not altering the final rule in response to these 
comments.
    Several commenters questioned the criteria permitting the use of 
soil supplement and substitution materials. These commenters alleged 
that the proposed regulations are not consistent with section 515(b)(5) 
of SMCRA,\304\ which allows soil substitution and supplements ``if 
other strata can be shown to be more suitable for vegetation 
requirements . . . .'' These commenters alleged that the proposed 
regulations ignore the term ``more suitable''. These commenters 
suggested that we revise the regulations to use the ``best overburden 
material available.'' We have declined to make this change. Our final 
regulations for the use of soil supplements and substitutes are fully 
consistent with section 515(b)(5) of SMCRA.\305\ As noted above, 
section 515(b)(5) of SMCRA allows for soil substitution and supplements 
if a demonstration can be made that other strata are ``more suitable 
for vegetation requirements . . . .'' Paragraph (e)(2)(i)(B) (purposed 
as (e)(2)(ii)(B), which we are finalizing today with only minor edits 
for clarity, allows for the use of substitutes and supplements if 
``[t]he use of the overburden materials that you have selected . . . 
will result in a soil medium that is more suitable than existing 
topsoil and subsoil to support and sustain vegetation . . . .'' 
(Emphasis added.) This language is fully consistent with the language 
to section 515(b)(5). Likewise, final paragraph (e)(2)(i)(C) [proposed 
as (e)(2)(ii)(C)] is also consistent with section 515(b)(5) of SMCRA. 
That paragraph allows for substitutes and supplements if ``[t]he 
overburden materials that . . . you select for use as a soil substitute 
or supplement [materials that] are the best materials available in the 
proposed permit area to support . . . vegetation consistent with the 
postmining land use and the revegetation plan . . .''. (Emphasis 
added.) Therefore we are not modifying the final rule based on these 
comments.
---------------------------------------------------------------------------

    \304\ Id.
    \305\ Id.
---------------------------------------------------------------------------

    Several commenters stated that the inclusion of a number of 
characteristics for consideration, such as total depth, texture, and pH 
of soil horizons and overburden material in paragraph (e)(2)(iii)(B), 
are unnecessary and costly to test and compare. Commenters specifically 
objected to the inclusion of ``thermal toxicity,'' which they indicated 
is a term that is generally used relating to water, not soil. These 
commenters were uncertain about what that parameter required. In 
response to these comments, we have eliminated the term ``thermal 
toxicity'' from the final rule. While this term is applicable to soil, 
the commenter is correct in stating that it is more commonly used in 
association with water and aquatic organisms' tolerance to temperature. 
On reconsideration we have decided the added value of including this 
characteristic as it relates to soil substitute materials is limited 
and will not be required. However, the other characteristics listed in 
proposed Sec.  780.12(e)(2)(iii)(B) are all essential to conducting a 
comprehensive analysis of whether a material is an acceptable 
substitute. Moreover, with the exception of ``thermal toxicity,'' which 
we did not include in the final rule, all of the soil characteristics 
included in final paragraph (e)(2)(iii)(B) were included in previous 
Sec.  780.18(b)(4). Additionally, any one of these characteristics 
individually, if sufficiently adverse, could impact the success of 
revegetation. For example, a potential substitute material may have an 
excessively low pH. This factor alone could render it unacceptable as a 
substitute material. The final rule requires the regulatory authority 
to examine these factors in a thorough and comprehensive fashion.
    We received comments alleging that it is unnecessarily duplicative 
to require the testing of substitute soil materials twice--once to 
prove they are suitable and then again after they have been placed. We 
disagree. Testing of substitute materials before placement is necessary 
because the testing serves as a baseline for the substitution plan, 
while testing after placement is needed to ensure that the substitution 
plan has been properly implemented.
    A commenter stated that expansion of the soils-related regulations 
requires soil science expertise that many regulatory authorities lack. 
Any soil science expertise and costs related to address that need, if 
currently unavailable within a regulatory program, would certainly be a 
legitimate program cost, and, subject to appropriation, states would be 
eligible to receive matching grant funding to assist with these 
expenses.
Final Paragraph (f): Surface Stabilization Plan
    Several commenters considered this paragraph to be a new permitting 
requirement. They generally contend that there is no value in this 
addition and claim that it was proposed without justification. In 
addition, some commenters asserted that proposed paragraph (f) should 
be removed because it is duplicative of other non-SMCRA related 
requirements governing the content of a mine's air quality

[[Page 93146]]

permits. Another commenter suggested that the regulation be relocated 
or revised to better explain the associated permitting requirements. We 
disagree. As explained in the preamble to the proposed rule,\306\ the 
surface stabilization plan required by paragraph (f) is the permitting 
counterpart to the performance standards at Sec.  816.95, which 
requires that all exposed surface areas must be protected and 
stabilized to effectively control erosion and air pollution attendant 
to erosion, and 30 CFR 816.150 and 816.151, which require dust control 
on mine roads. This permitting requirement, which we are adopting as 
part of the final rule, allows the regulatory authority to evaluate the 
anticipated adequacy and effectiveness of proposed surface 
stabilization measures. Additionally, while many facets of air quality 
are not governed by SMCRA, it is clearly within our SMCRA authority to 
regulate air pollution attendant to erosion caused by mining activity. 
Therefore we are not modifying the final rule based on this comment.
---------------------------------------------------------------------------

    \306\ 80 FR 44436, 44490 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (g): Revegetation Plan
    Final paragraph (g) is substantively identical to proposed 
paragraph (g), except as discussed below.
    Proposed paragraph (g)(1)(v) provided that the revegetation plan 
must include the species to be planted and the seeding and stocking 
rates and planting arrangements to be used to achieve or complement the 
postmining land use and to enhance fish and wildlife habitat. Final 
paragraph (g)(1)(v) adds a requirement that the revegetation plan 
include the species to be planted and the seeding and stocking rates 
and planting arrangements to be used to achieve the streamside 
vegetative corridor provisions of final Sec. Sec.  816.56(c) and 
816.57(d), when applicable. We added this requirement to emphasize the 
critical nature of streamside vegetative corridors in achieving 
restoration of streams that are mined through.
    One commenter requested that we implement, to the maximum extent 
practicable, measures to support pollinators with respect to native 
plants, consistent with the Presidential Memorandum dated June 20, 
2014, ``Creating a Federal Strategy to Promote the Health of Honey Bees 
and Other Pollinators.'' In response to this comment, we added 
paragraph (g)(1)(v)(B) to the final rule. That paragraph provides that, 
to the extent practicable and consistent with other revegetation and 
regulatory program requirements, the species mix must include native 
pollinator-friendly plants and the planting arrangements must promote 
the establishment of pollinator-friendly habitat.
    In response to a comment, we revised Sec.  780.12(g)(1)(ix), 
regarding normal husbandry practices, to correctly cross-reference 
Sec.  816.115(d).
    Commenters recommended that we revise paragraph (g) to require that 
the selection of revegetation material take into account habitats for 
the wildlife species with the greatest conservation need, as determined 
by the state wildlife agency, the U.S. Fish and Wildlife Service, and 
regional or national wildlife conservation initiatives. According to 
the commenters, species of concern, which include many grassland birds, 
may benefit by replacing premining forested lands with grassland 
habitat.
    Revisions of the nature advocated by the commenters may exceed our 
authority under SMCRA. In particular, adoption of a rule promoting the 
establishment of grasslands in place of the forests that would 
naturally exist on those sites would be inconsistent with section 
515(b)(19) of SMCRA, which requires that the permittee ``establish on 
the regraded areas, and all other lands affected, a diverse, effective, 
and permanent vegetative cover of the same seasonal variety native to 
the area of land to be affected and capable of self-regeneration and 
plant succession at least equal in extent of cover to the natural 
vegetation of the area.'' \307\ However, the final rule does require 
that permit applications include appropriate fish and wildlife 
enhancement measures. Specifically, final Sec.  780.16(d)(2)(iv) 
promotes the reestablishment of native forests or other native plant 
communities, both within and outside the permit area.
---------------------------------------------------------------------------

    \307\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    Many commenters supported proposed paragraph (g)(1)(xi), which 
required that the applicant describe the process for monitoring and 
controlling invasive species. Other commenters requested an explanation 
of how the rule would apply to naturalized invasive or non-native 
species or when invasive or non-native species drift from adjacent 
lands and establish themselves on the mine site. The final rule does 
not distinguish between naturalized non-native species and non-native 
species that are not naturalized. Nor does it differentiate on the 
basis of how non-native species arrive on the mine site. Instead, it 
differentiates on the basis of whether the volunteer non-native species 
are invasive. In all cases, final paragraph (g)(1)(xi) requires that 
the revegetation plan identify the measures that the permittee will 
take to avoid the establishment of invasive species on reclaimed areas 
or to control those species if they do become established. We recognize 
that it may not be possible to completely avoid the presence of some 
invasive species. The bottom line is that invasive species must not be 
present in quantities that would prevent attainment of the revegetation 
success standards established in accordance with final Sec.  816.116.
    At least one commenter suggested that we move proposed paragraphs 
(g)(2) and (3) to part 816 and make them performance standards. We 
declined to make this change. The revegetation plan, which is submitted 
and approved as part of the permit, is a critical component of the 
planning stage. After the permit, which includes the revegetation plan, 
is approved, the permittee then is obligated to comply with the terms 
and conditions of the approved permit. However, in reviewing the 
structure of proposed paragraphs (g)(2) and (3) in response to this 
comment, we determined that the requirement in proposed paragraph 
(g)(2) that the species and planting rates and arrangements selected as 
part of the revegetation plan meet the requirements of paragraphs (a) 
and (b) of Sec.  816.116 is not appropriate. Paragraph (a) of Sec.  
816.116 requires that the regulatory authority select standards for 
revegetation success and statistically valid sampling techniques. 
Paragraph (b) of Sec.  816.116 requires that the revegetation success 
standards reflect the revegetation plan requirements of Sec.  
780.12(g). Nothing in those two paragraphs would impact development of 
the revegetation plan. Therefore, final paragraph (g)(2) does not 
include the provision in proposed paragraph (g)(2) that would have 
required that the revegetation plan meet the requirements of paragraphs 
(a) and (b) of Sec.  816.116.
    Final paragraph (g)(3)(vii) differs from proposed paragraph 
(g)(3)(vii) in that the final rule does not include mention of state 
and federal poisonous plant laws. We made this change because we are 
not aware of any state or federal poisonous plant laws.
    Some commenters requested the rule include more specific 
information on the meaning of native plant communities and the natural 
succession process. Final paragraph (g)(3)(iv) differs slightly from 
its counterpart in the proposed rule in that we added a clarification 
that the species in the revegetation plan must be consistent with the 
appropriate stage of natural succession in the native plant communities 
described in Sec.  779.19 of

[[Page 93147]]

the final rule. In other words, we do not intend to require planting of 
species that would not survive on drastically disturbed sites.
    Several commenters stated that the standards for revegetation are 
not clear and asked whether sites are to be returned to the vegetation 
that existed prior to human influence. If this is the case, the 
commenters stated, this requirement would be impossible to meet in 
situations where non-native vegetation constitutes a significant 
portion of the premining landscape. The final rule does not necessarily 
require that the site be revegetated with the species that 
characterized the site before it was altered by human activities. The 
species selected must be suitable for the postmining land use. Final 
paragraph (g)(3)(i) requires use of species native to the area, but it 
also allows use of introduced species as part of the permanent 
vegetative cover for the site if the introduced species are both non-
invasive and necessary to achieve the postmining land use, planting of 
native species would be inconsistent with the approved postmining land 
use, and the approved postmining land use is implemented before the 
entire bond amount for the area has been fully released under 
Sec. Sec.  800.40 through 800.43. Final paragraph (g)(3)(i) is 
consistent with section 515(b)(19) of SMCRA,\308\ which requires 
establishment of ``a diverse, effective, and permanent vegetative cover 
of the same seasonal variety native to the area of land to be affected 
and capable of self-regeneration and plant succession at least equal in 
extent of cover to the natural vegetation of the area; except, that 
introduced species may be used in the revegetation process where 
desirable and necessary to achieve the approved postmining land use 
plan.'' Moreover, the default requirement in the final rule for use of 
native species is consistent with Section 2(a)(2)(i) of Executive Order 
13751 stating, ``[i]t is the policy of the United States to prevent the 
introduction, establishment, and spread of invasive species, as well as 
to eradicate and control populations of invasive species that are 
established.'' Moreover, that Executive Order provides that Federal 
agencies to ``the extent practicable and permitted by law . . . prevent 
the introduction, establishment, and spread of invasive species.'' 
\309\
---------------------------------------------------------------------------

    \308\ 30 U.S.C. 1265(b)(19).
    \309\ Sec. 1 Policy and Sec. 2 Federal Agency Duties. 81 FR 
88609 (Dec. 8, 2016).
---------------------------------------------------------------------------

    Many commenters supported the requirement to reclaim lands using 
predominantly native species. Other commenters considered the proposed 
requirement too stringent; they recommended fewer restrictions on the 
use of non-native species and more flexibility for the regulatory 
authority to approve vegetation plans based on local conditions. As 
previously explained, our final regulations allow for the appropriate 
use of introduced species for reclamation, as long as they are not 
invasive. Requirements to use native species (and, where appropriate, 
introduced, non-invasive species) for reclamation allow the regulatory 
authority to approve vegetation plans based on local conditions. They 
also minimize the risk of allowing non-native species to be introduced 
when they are not the best choice for long-term reclamation.
    We also received comments that alleged that the requirement to use 
native vegetation conflicted with the requirement to achieve a 
condition in which the site will support a productive postmining land 
use and the requirement for use of species capable of self-regeneration 
and natural succession. The commenters alleged that the proposed 
requirements were neither sufficient nor the most productive way to 
achieve the postmining land use. These commenters noted that many non-
native species might prove better candidates for achieving 
productivity, self-regeneration, and natural succession. Similarly, 
some commenters expressed concern that use of native species is not 
always suitable or best for a particular postmining land use, and that 
restoring the premining vegetation may conflict with fish and wildlife 
postmining land uses that involve elk and other game species.
    Nothing in our rules prohibits revegetation of sites with a fish 
and wildlife postmining land use with species appropriate for the 
wildlife for which the site will be managed. Furthermore, final Sec.  
780.12(g)(3)(i), which incorporates the provisions of proposed 
paragraph (g)(6), allows the applicant to propose, and the regulatory 
authority to approve, use of introduced species to achieve a particular 
postmining land use, provided certain conditions are met. Final 
paragraphs (g)(3)(i) and (g)(4) allow the use of introduced species if 
(1) the introduced species are needed to achieve a quick-growing, 
temporary, stabilizing cover on disturbed and regraded areas, and the 
species selected to achieve this purpose will not impede the 
establishment of permanent vegetation; (2) the postmining land use 
requires the use of introduced, non-invasive species, and (3) the 
postmining land use will be implemented before the entire bond amount 
for the area has been fully released. These provisions provide the 
flexibility needed to allow the use of introduced species for 
agricultural postmining land uses. Therefore, final paragraph (g)(5) 
does not include the provision in proposed paragraph (g)(5) that would 
have allowed the regulatory authority to exempt lands with long-term, 
intensive agricultural postmining land uses from the requirements of 
paragraph (g)(3)(i).
    Some commenters requested that we include a definition of 
``resembles'' within Sec.  780.12(g)(3)(ii), which requires ``a 
permanent vegetative cover that resembles native plant communities in 
the area.'' We find it unnecessary to define this term. The final rule 
allows the regulatory authority the flexibility to approve a native, 
non-invasive vegetative cover that would allow for natural succession 
specific to that site. To the extent that more explanation is needed, 
section 515(b)(19) of SMCRA requires that the permittee ``establish on 
the regraded areas, and all other lands affected, a diverse, effective, 
and permanent vegetative cover of the same seasonal variety native to 
the area of land to be affected and capable of self-regeneration and 
plant succession at least equal in extent of cover to the natural 
vegetation of the area. . . .'' \310\
---------------------------------------------------------------------------

    \310\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    We updated proposed paragraph (g)(4) in the final rule to more 
clearly reflect our intent to allow the regulatory authority to approve 
the use of introduced species when controlling erosion, but only if 
such use does not impede establishment of the permanent vegetation 
needed to meet revegetation success standards. We made this change is 
in response to commenters who asked for clarity about natural 
succession and the establishment of permanent native vegetation.
    We also made a change to paragraph (g)(6) of the final rule. The 
proposed rule required that a professional forester or ecologist 
develop and certify any revegetation plan that includes trees or 
shrubs. Many commenters expressed concern over this requirement and 
noted that many other experienced professionals have the expertise to 
design and certify these plans. Some commenters observed that states 
may not professionally recognize or certify ecologists, and in those 
states that do certify ecologists, it may be rare to find an ecologist 
with sufficient experience to develop and certify revegetation plans 
for coal mining operations. We agree and have modified the final rule 
to address these concerns. Under the

[[Page 93148]]

final rule, any qualified and experienced biologist, soil scientist, 
forester, or agronomist can now prepare or approve all revegetation 
plans. This change allows a wide variety of qualified and experienced 
professionals to approve these plans. We trust that a qualified and 
experienced professional in one subject area may consult with other 
appropriate individuals as necessary to prepare or approve the 
revegetation plan.
    Another commenter suggested that we replace all references to 
``introduced'' species with ``invasive'' species. We did not make this 
change. These terms are not synonyms (i.e., there are introduced 
species that are not invasive), and there are instances where 
``introduced'' is more appropriate. The final rule at Sec.  701.5 
defines invasive species as ``an alien species (a species that is not 
native to the region or area), the introduction of which has caused or 
is likely to cause economic or environmental harm or harm to human 
health''. The final rule prohibits use of these species for 
revegetation under SMCRA. However, introduced species that are non-
invasive may be used in reclamation, as provided in final Sec.  
780.12(g)(3).
    Other commenters expressed opposition to the proposed rule because 
they considered the previous regulations sufficient and not in need of 
any updates. We disagree. While it is true that under SMCRA, voluntary 
best practices have advanced to minimize the effect of introduced, 
invasive species on the natural processes and capability of reclaimed 
land, (as examples: the elimination in most instances of using crested 
wheatgrass, Agropyron cristatum,\311\ Kentucky 31 tall fescue, Lolium 
arundinaceum,\312\ and smooth brome, Bromus inermis; \313\ using the 
Forestry Reclamation Approach; \314\ and extreme surface roughening 
\315\), the previous regulations were insufficient because they did not 
require use of these best practices.
---------------------------------------------------------------------------

    \311\ Gerald E. Schuman, Mined land reclamation in the Northern 
Great Plains: Have we been successful ?, Proceedings 19th Annual 
Meeting, American Society of Mining and Reclamation. 2002.
    \312\ U.S. Dep't. of Agric., NRCS, (2002). Tall Fescue, Lolium 
arundinaceum Plant Fact Sheet.
    \313\ U.S. Dep't. of Agric., NRCS, (2006). Smooth brome, Bromus 
inermis Plant Fact Sheet.
    \314\ Jim Burger, et al. The forestry reclamation approach. 
Forest Reclamation Advisory 2 (2005).
    \315\ M.A. Wright, The practical guide to reclamation in Utah. 
Univ. of Utah, Utah Oil, Gas & Mining Division, (2000).
---------------------------------------------------------------------------

    Commenters also opined that these new regulations may not 
accommodate landowner desires. We agree that this statement may 
sometimes be true, but section 515(b)(19) of SMCRA requires the 
establishment of ``a diverse, effective, and permanent vegetative cover 
of the same seasonal variety native to the area of land to be affected 
and capable of self-regeneration and plant succession at least equal in 
extent of cover to the natural vegetation of the area.'' Landowners may 
replant the site with other species if they wish after final bond 
release, which terminates jurisdiction under SMCRA.
    Other commenters claimed that the proposed rule's emphasis on 
native species is flawed due to concerns about the availability and 
survivability of native species, as well as their additional cost. We 
agree that these native species requirements could increase short-term 
reclamation costs, but they are not cost-prohibitive. The use of native 
species is the best technology currently available, and in the long-
term, this requirement could also lower maintenance costs. We disagree 
that the availability and survivability of native species should 
prohibit our requirement to use them to reclaim SMCRA permitted 
disturbances. Native species are currently in wide use as best 
practices in SMCRA and non-SMCRA reclamation across the United States, 
and substantial progress continues to be made in the availability and 
diversity of native species. Best practices include contracting with 
growers to produce seed from the premining vegetation or from adjacent 
(and appropriate) areas for use in reclamation. This enhances the 
establishment and the survivability of the native species that are 
used.
    Commenters also expressed concern that the proposed regulations 
would effectively eliminate postmining land use options other than 
forest. We disagree. As explained in the preamble discussion at section 
701.5 within the ``land use'' definition, there are several acceptable 
postmining land uses, and forest is only one potential postmining land 
use. In addition, the revegetation plan set forth in this paragraph 
only requires the proposed vegetative cover to be consistent with both 
the approved postmining land use and the establishment of the plant 
communities described in the permit application, as required by Sec.  
779.19. Only those portions of the proposed permit area that are 
forested at the time of permit application or that would revert to 
forest under conditions of natural succession must be revegetated using 
native tree and understory species. This requirement would not apply 
when a postmining land use other than forestry has been approved, 
provided reforestation is inconsistent with the land use and provided 
that the approved postmining land use is implemented before final bond 
release.
Final Paragraph (h): Stream Protection and Reconstruction Plan
    A commenter expressed concern that the steps in this plan would be 
inflexible and result in inappropriate enforcement actions that do not 
take into account the time required for restoration and recovery of 
natural stream functions. The commenter stated that Sec.  780.12(h) 
implies that it is possible to predict when biological stream functions 
might be restored, a characterization with which the commenter 
disagrees. We do not agree that the regulation is inflexible or that it 
would result in inappropriate enforcement actions. We recognize that 
once a permittee completes construction of the stream channel and 
plants of the streamside vegetative corridor, there are few, if any, 
measures that may be taken to speed ecological restoration. The rule 
does not anticipate any enforcement action for failure to achieve 
restoration of ecological function within any specific time. However, 
it requires that final bond release be delayed until that requirement 
is accomplished.
    A commenter stated that the use of the term ``restoration'' 
relating to streams should be changed to ``reclamation'' because the 
term ``restoration'' is not included in the definitions section of 
SMCRA. We have not made this change. The absence of the term in SMCRA 
does not prohibit its use, where appropriate, in our regulations. 
Moreover, section 508(a)(9) of SMCRA requires the permittee to include 
in the reclamation plan a statement of ``the steps to be taken to 
comply with the . . . water quality laws and regulations.'' \316\ As 
discussed further in Sec. Sec.  780.27, 780.28, 816.56, and 816.57, the 
establishment of standards for restoration of ecological function must 
be in coordination with the appropriate Clean Water Act authority to 
ensure compliance with all Clean Water Act requirements, where 
applicable. Further, the term ``restoration'' is appropriate in the 
context of ecological function restoration requirements for streams, 
whereas the term ``reclamation'' would be far less clear.
---------------------------------------------------------------------------

    \316\ 30 U.S.C. 1258(a)(9).
---------------------------------------------------------------------------

    A commenter opined that because the Clean Water Act requires stream 
restoration plans, there is no need for a SMCRA review and approval of 
proposals to mine through a perennial or intermittent stream. 
Therefore, according to the commenter, we should simply reference the 
Clean Water Act

[[Page 93149]]

permit. The commenter further suggests that this requirement be 
modified or removed as it is duplicative of requirements of other 
agencies, supersedes the Clean Water Act, and is in violation of 
section 702 of SMCRA.\317\
---------------------------------------------------------------------------

    \317\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    We disagree with the commenter's assertion that this requirement 
supersedes the Clean Water Act. In Part IV.I., above, we further 
discuss the relationship between SMCRA and Clean Water Act. While Clean 
Water Act stream restoration plans may serve as the basis for the 
restoration plan required by our final rule, (which is further 
justification for coordination with the Clean Water Act authority in 
the development of such plans), the regulations referenced in our final 
rule address the need for a plan that restores stream form, hydrologic 
function and ecological function. The completion of these various 
phases of a stream restoration plan are all tied to bond release; 
therefore it is critical that any plan utilized be incorporated into 
the SMCRA permit. In addition, the Clean Water Act authority may not 
always require a stream restoration plan, but may instead require 
mitigation in accordance with Clean Water Act provisions. It is not 
uncommon for mitigation to consist of in-lieu fee payments to a 
``mitigation bank'' which negates the obligation to actually restore 
the lost stream functions required by the final rule. Our regulations 
require a demonstration that intermittent and perennial streams can be 
restored hydrologically and ecologically, otherwise the regulatory 
authority may not approve of a request to mine through such steams. 
Therefore we cannot rely on provisions within the Clean Water Act to 
satisfy this requirement.
Final Paragraph (l): Compliance With the Clean Air Act and the Clean 
Water Act
    This section requires that the reclamation plan describe the steps 
to comply with the requirements of the Clean Air Act,\318\ the Clean 
Water Act,\319\ and other applicable air and water quality laws and 
regulations and health and safety standards. A commenter asserted that 
there is no rational basis for this requirement and recommends that we 
remove it because it is unnecessary for an applicant to describe the 
steps taken or that are to be taken in association with laws other than 
SMCRA. In support of this assertion, the commenter states that the 
permittee must comply with all applicable applications, regulations, 
and permit approval documents of other applicable laws or face 
enforcement mechanisms by the pertinent agencies to compel compliance. 
We disagree with the commenter because section 508(a)(9) of SMCRA \320\ 
specifically requires that the applicant demonstrate in the reclamation 
plan ``the steps to be taken to comply with applicable air and water 
quality laws and regulations and any applicable health and safety 
standards.'' \321\ Because this is a statutory requirement, it cannot 
be removed as the commenter suggests: It is important that the 
applicant describe how compliance will be attained, especially 
considering complex mining scenarios and requirements.
---------------------------------------------------------------------------

    \318\ 42 U.S.C. 7401 et seq.
    \319\ 33 U.S.C. 1251 et seq.
    \320\ 30 U.S.C. 1258(a)(9).
    \321\ Id.
---------------------------------------------------------------------------

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

    \322\ 80 FR 44436, 44492 (Jul. 27, 2015).
    \323\ 30 U.S.C. 1258(a)(8).
---------------------------------------------------------------------------

Final Paragraph (n): Handling and Acid-Forming and Toxic-Forming 
Materials
    We have added final paragraph (n) to the final rule because we 
determined that it was more appropriate to place the permitting 
requirements about how a permittee must develop an acid-forming and 
toxic-forming handling plan in the performance standards of proposed 
Sec.   816.38. Specifically, we have moved proposed Sec.  816.38(a) 
through (d), which prescribe handling of acid-forming and toxic-forming 
materials, to final paragraph (n) because these handling requirements 
must be included in the reclamation plan.
    As discussed in the preamble,\324\ we proposed to modify section 
816.38 to implement more completely section 515(b)(14) of SMCRA,\325\ 
which requires that all acid-forming materials and toxic materials be 
``treated or buried and compacted or otherwise disposed of in a manner 
designed to prevent contamination of ground or surface waters.'' Our 
revisions to proposed Sec.  816.38, now paragraph (n) of Sec.  780.12, 
are also consistent with section 515(b)(10)(A) of SMCRA,\326\ which 
requires the permittee to ``minimize the disturbances to the prevailing 
hydrologic balance . . . by avoiding acid or toxic mine drainage. . . 
.'' In proposed Sec.  816.38(a), now Sec.  780.12(n)(1), we discuss how 
handling of acid-forming or toxic-forming materials identified during 
collection of baseline information under final Sec.  780.19(e)(3) will 
be prescribed in the reclamation plan. In particular, paragraph (n)(1) 
pertains to handling acid-forming and toxic-forming materials when they 
are identified in the overburden above the lowest coal seam mined. One 
commenter suggested that we should allow the practice of blending acid-
forming materials with spoil that exhibits sufficient alkalinity to 
prevent acid drainage. Because of the neutralization effects of this 
practice, we agree with the commenter and have added text to paragraph 
(n)(1)(ii)(A) that expressly allows this practice. Several commenters 
asserted that we should limit the scope of proposed Sec.  816.38(c), 
now final Sec.  780.12(n)(1)(ii), to areas where surface water and 
groundwater problems could occur. We made no revisions in response to 
this comment. Adverse impacts to surface water or groundwater may occur 
anywhere acid-forming or toxic-forming materials are present. Thus, 
final paragraph (n)(1)(ii) properly applies whenever acid-forming

[[Page 93150]]

or toxic-forming materials are present; therefore, no revisions are 
necessary or appropriate. The same commenters also asserted that 
proposed Sec.  816.38(c), now Sec.  780.12(n)(1)(ii), was overly 
restrictive and should allow techniques other than those set forth in 
the proposed rule. We disagree with the characterization that final 
paragraph (n)(1)(ii) is overly restrictive; this provision allows the 
operator to either demonstrate that acid or toxic drainage will not be 
generated or choose from proven methods of handling acid-forming and 
toxic-forming materials to prevent material damage to the hydrologic 
balance outside the permit area. The commenters suggested, for example, 
that it may be possible to effectively prevent pollution resulting from 
acid-forming or toxic-forming materials by placing the materials in a 
position that is ``high and dry.'' We agree that, in common with other 
placement methods, placing acid-forming or toxic-forming materials 
permanently above the groundwater table can be effective. Final 
paragraph (n)(1)(ii), describes several methods of addressing acid-
forming or toxic-forming materials, including treatment with 
neutralizing materials and placement of the materials so that they will 
remain permanently above, or below, the groundwater table. However, we 
must point out that paragraph (n)(1)(ii)(B) only allows placement of 
acid-forming or toxic-forming materials below the water table, without 
surrounding them with compacted low permeability material, if you can 
demonstrate and the regulatory authority finds in writing that complete 
saturation will prevent the formation of acid or toxic mine drainage. 
If you, the permittee cannot make this demonstration, you must either 
treat the acid-forming or toxic-forming material in accordance with 
paragraph (n)(1)(ii)(A) or completely surround the acid-forming or 
toxic-forming materials with compacted low permeability material in 
accordance with paragraph (n)(1)(ii)(C). If you surround the material 
with compacted low permeability material, you may place the material 
either permanently below the groundwater table in accordance with 
paragraph (n)(1)(ii)(C)(1), or permanently above the groundwater table 
in accordance with paragraph (n)(1)(ii)(C)(2). Surrounding the material 
with compacted low permeability material is necessary regardless of 
placement location because spoil is known to be highly variable in 
terms of hydraulic conductivity. Therefore, unless these materials are 
surrounded by compacted low permeability material, acid-forming or 
toxic-forming elements or compounds may be leached from the materials 
by infiltrating precipitation (above the groundwater table) or by 
flowing groundwater (below the groundwater table). As one commenter 
noted, these requirements are consistent with the holding in Rith 
Energy, Inc. v. OSM, 111 IBLA 239 (IBLA 1989) that requires that acid-
forming and toxic-forming materials be handled in a manner that will 
avoid the creation of acid or toxic mine drainage so as to minimize 
disturbance to the prevailing hydrologic balance.
---------------------------------------------------------------------------

    \324\ 80 FR 44436, 44547-44548 (Jul. 27, 2015).
    \325\ 30 U.S.C. 1265(b)(14).
    \326\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    In Sec.  816.38(d), now Sec.  780.12(n)(2), we have provided for 
placement of acid-forming or toxic-forming materials in an excess spoil 
fill or coal mine waste refuse pile using the methods outlined in 
paragraph (1) to prevent contamination of ground or surface waters. 
Although we did not receive comments on proposed paragraph (d), we made 
nonsubstantive changes to the paragraph to conform to plain language 
principles and to accommodate moving the text to Sec.  780.12.
    In Sec.  816.38(a), now Sec.  780.12(n)(3), we address the measures 
that you must specify in your reclamation plan to prevent adverse 
hydrologic effects resulting from acid-forming or toxic-forming 
materials being exposed during mining, if they are present in the 
stratum immediately below the lowest coal seam being mined. Several 
commenters, including regulatory authorities and operators, recommended 
deleting this paragraph, arguing that it erroneously presupposes that 
all coal seams and the pit floor contain acid-forming and toxic-forming 
materials. In addition, the commenters opined that requiring an 
impervious layer below the coal seam could potentially cause more 
problems than it solves by reducing recharge to aquifers below the coal 
seam and by sealing unmined coal faces, thus impeding potential 
groundwater recharge to the backfill. The commenters were particularly 
concerned with the proposed requirement to cover exposed coal seams and 
the stratum immediately beneath the lowest coal seam mined with a layer 
of compacted material with a hydraulic conductivity at least two orders 
of magnitude lower than the hydraulic conductivity of the overlying, 
less-compacted spoil. The commenters asserted that this requirement is 
unnecessary and will result in additional cost with little benefit to 
water quality by imposing increased inspection frequency. Commenters 
also opined that this would require operators to work adjacent to the 
highwall for longer periods, presenting numerous safety issues. We 
disagree with the commenters. This rule requires the development of a 
plan to prevent any adverse hydrologic impacts that might result from 
exposure of the stratum beneath the coal seam that was exposed during 
the mining process. The requirement to develop a plan will apply only 
when the baseline geologic information collected under section Sec.  
780.19(e) indicates that the stratum immediately below the lowest coal 
seam to be mined contains acid-forming or toxic-forming materials. 
Final Sec.  773.15(n) prohibits the regulatory authority from approving 
the permit application unless the applicant demonstrates, and the 
regulatory authority concurs, that the operation has been designed to 
prevent the formation of toxic mine drainage or other discharges that 
would require long-term treatment after mining has been completed. 
Therefore, the plan must be adequate to satisfy this requirement. One 
option the permittee may employ is placing a compacted low permeability 
layer over the in-place stratum immediately beneath the coal seam using 
the same safety measures that allowed removal of the coal.

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

    Section 780.13 explains the additional maps, plans, and cross 
sections that the applicant must include in the reclamation plan. We 
have adopted the section as proposed with the exception of one 
additional requirement, a few non-substantive changes, and renumbering 
of paragraphs.
    A few commenters expressed concern about the proposed requirement 
in Sec.  780.13(a)(9) to map each feature and facility that is 
constructed to protect or enhance fish, wildlife, and related 
environmental values. Commenters stated that this is time consuming and 
that these features are likely to change over the course of mining 
operations; therefore, the commenters advocated the elimination of 
these requirements. We disagree. This requirement provides valuable 
information that will allow the regulatory authority to assess, 
monitor, and review the evolving operation. While this requirement may 
result in more time and effort at the initial permitting stage, it 
should save time and effort in subsequent permit reviews. Furthermore, 
it is important to accurately document efforts to protect or enhance 
fish, wildlife, and related environmental values.
    As discussed within the preamble to Sec.  816.57(d), we have added 
to our performance standards a requirement to

[[Page 93151]]

establish 100-foot wide vegetative corridors along certain perennial 
and intermittent streams. In order to ensure consistency between the 
permit requirements and the performance standards, we have also added a 
new paragraph (a)(14) to Sec.  780.13, which requires the applicant to 
provide data about each streamside vegetative corridor that it proposes 
to establish. Documenting the proposed location of vegetative corridors 
will aid the applicant in planning and allows the regulatory authority 
to assess the proposed location of the vegetative corridors to ensure 
they can be established consistent with the requirements of Sec.  
816.57(d).
    The U.S. Forest Service supported adoption of proposed paragraph 
(a)(15) and we received no comments opposing it. For clarity, however, 
we have divided the requirements of this paragraph into two separate 
paragraphs, numbered (a)(16) and (a)(17) because of the addition of new 
paragraph (a)(14) to the final rule. Final paragraph (a)(16) requires 
the applicant to provide the ``location and geographic coordinates of 
each monitoring point for groundwater and surface water.'' Final 
paragraph (a)(17) requires the applicant to provide ``the location and 
geographic coordinates of each point at which you propose to monitor 
the biological condition of perennial and intermittent streams.''
    Proposed paragraph (c) clarified that the regulatory authority may 
require an applicant to submit the materials required under this 
section in digital format. The U.S. Forest Service and others expressed 
general support for submitting data in digital format. Other commenters 
recommended that this paragraph be revised to encourage, but not 
require, the digital format option for all materials submitted for 
review and analysis by the public and the regulatory authority. These 
commenters expressed concern that requiring materials to be submitted 
in a digital format would be financially burdensome and that some 
operators or state regulatory authorities might not possess the 
technical ability to provide the information in a digital format. We do 
not agree. Proposed paragraph (c) did not require the submission of 
materials in a digital format but merely clarified that the regulatory 
authority can require digital submissions if it so chooses. Requiring 
permit materials to be submitted in digital format could actually save 
regulatory authorities a significant amount of time that might 
otherwise be spent digitizing materials submitted by applicants so that 
they will be accessible to the public and to us. Furthermore, 
submission of digital data is increasingly common and does not require 
highly specialized technology or equipment. Consequently, we have made 
no substantive change to the final rule.

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

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

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

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

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

    Section 780.16 is intended to ensure that a proposed surface coal 
mining and reclamation operation is designed in a manner that meets the 
fish and wildlife protection and enhancement requirements of the 
regulatory program. Except as discussed below, we have adopted Sec.  
780.16 as proposed, with minor editorial revisions for clarity and 
consistency.
Final Paragraph (b): Protection of Threatened and Endangered Species 
and Species Proposed for Listing as Threatened or Endangered
    Proposed paragraph (b) required the permittee to describe how the 
permit would comply with the Endangered Species Act, 16 U.S.C. 1531 et 
seq., including any species-specific protection and enhancement plans 
developed in accordance with that law. In response to comments from 
federal agencies, we have added a new paragraph (b)(1) stating that 
final paragraphs (b)(2) and (b)(3) apply when the proposed operation 
may affect species listed or proposed for listing as threatened or 
endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq., or designated or proposed critical habitat under that law.
    Another commenter requested that we add ``proposed species'' to 
this section. We made the recommended revisions because, as discussed 
in greater detail in the preamble text for section 773.15(j) above, 
both SMCRA and the Endangered Species Act provide authority to protect 
species that have been proposed for listing.\327\ Section 7(a)(4) of 
the Endangered Species Act \328\ requires that Federal agencies confer 
with the U.S. Fish and Wildlife Service on any agency action that is 
likely to jeopardize the continued existence of any species proposed to 
be listed as threatened or endangered. SMCRA sections 515(b)(24) and 
516(b)(11) \329\ require that, at a minimum, mining operations must 
``to the extent possible using the best technology currently available, 
minimize disturbances and adverse impacts of the operation on fish, 
wildlife, and related environmental values, and achieve enhancement of 
such resources where practicable.'' The requirement to minimize impacts 
to ``fish, wildlife, and related environmental values'' is not in any 
way limited to Endangered Species Act-listed species.
---------------------------------------------------------------------------

    \327\ 80 FR 44436, 44565 (Jul. 27, 2015).
    \328\ 16 U.S.C. 1536(a)(4).
    \329\ 30 U.S.C. 1265(b)(24), 1266(b)(11).
---------------------------------------------------------------------------

    Several commenters expressed support for proposed Sec.   780.16(b) 
to the extent that it requires compliance with the Endangered Species 
Act \330\ and incorporation of any species-specific protection and 
enhancement measures into the permit, including those provided for 
under applicable biological opinions for the mining operations at 
issue. However, commenters also noted that ``species-specific 
protection and enhancement measures'' are not developed in accordance 
with the

[[Page 93152]]

Endangered Species Act, as our proposed regulation indicated. They 
noted that a more appropriate Endangered Species Act tool might be a 
habitat conservation plan under Section 10 of the Endangered Species 
Act and suggested we replace ``protection and enhancement plan'' with 
``habitat conservation plan'' as an example of a relevant plan 
developed in accordance with the Endangered Species Act. We agree and 
have changed the text of paragraph (b)(2) accordingly. However, 
species-specific protection and enhancement measures, where developed, 
should also be followed wherever possible.
---------------------------------------------------------------------------

    \330\ 16 U.S.C. 1531 et seq.
---------------------------------------------------------------------------

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

    \331\ OSMRE, Range-wide Indiana Bat Protection and Enhancement 
Plan Guidelines for Surface Coal-Mining Operations, Jul. 2009, 
available at: http://www.osmre.gov/lrg/docs/INBatPEPGuidelines.pdf 
(last accessed Nov. 1, 2016).
---------------------------------------------------------------------------

    Other commenters requested that we require applicants to 
demonstrate that the proposed permit would not adversely impact any 
species listed or proposed for listing under the Endangered Species 
Act. Additionally, one commenter suggested that there should be a 
strict prohibition on any activity within 100 feet of streams because 
of the potential to adversely impact aquatic species. We do not agree 
that additional prescriptive protective measures should be required in 
this section or that an applicant must demonstrate that a proposed 
mining operation will not adversely impact any listed species. In the 
final rule, we have revised our previous regulations to ensure that 
threatened and endangered species and species proposed for listing as 
threatened or endangered are correctly identified and described, as 
explained in Sec.  779.20; that the permit is designed to protect and 
enhance those species, as explained in Sec.  780.16; and that the 
regulatory authority makes a finding that the permit complies with the 
Endangered Species Act as explained in Sec.  773.15(j). The analysis of 
what protection and enhancement measures are required under paragraph 
(b) should be species and site-specific and should be done in close 
coordination with the appropriate state or federal agencies. These 
types of species and site-specific considerations do not lend 
themselves to prescriptive rules. The exact process of developing 
protection and enhancement plans will depend on how the applicant 
intends to demonstrate achievement of the finding required under final 
Sec.  773.15(j). Final Sec.  780.16(b) fits into this scheme by simply 
requiring that an applicant describe how it will comply with the 
Endangered Species Act. This description will vary depending on how the 
applicant intends to demonstrate compliance with the Endangered Species 
Act, site-specific considerations, and the number and type of listed or 
proposed species potentially impacted by the operation.
    Other commenters expressed concern over the requirement, now 
located in final paragraph (b)(2), that compliance with the Endangered 
Species Act must be demonstrated before the regulatory authority may 
approve a permit. Many commenters opined that it takes a long time to 
obtain approval of necessary protection and enhancement measures for 
proposed or listed species from the U.S. Fish and Wildlife Service or 
National Marine Fisheries Service and questioned whether it was 
possible to obtain a permit on the condition that no impact to listed 
species would occur until the coordination process was complete. We 
have evaluated this request and determined that, until the coordination 
process is complete, it would be very difficult to determine whether an 
operation will not impact species. However, where an operation can be 
reduced in size or divided into different phases to avoid proposed or 
listed species, there is no prohibition on pursuing a permit for that 
smaller area while simultaneously pursuing approval of a second, nearby 
permit where impacts to species may occur. This could allow an operator 
to begin mining on the permit that would have no impacts to species, 
assuming all other requirements were met, such as the requirement that 
phases of operations that are significantly related must be evaluated 
in a single impact statement pursuant to NEPA,\332\ while continuing 
the coordination process on the permit where impacts to species are 
possible.
---------------------------------------------------------------------------

    \332\ 40 CFR 1502.4(a).
---------------------------------------------------------------------------

Final Paragraph (c): Protection of Other Species
    One commenter recommended we remove from the final rule all 
language that the commenter characterized as ``subjective,'' such as 
``to the maximum extent practicable'' or to ``minimize disturbances and 
effects'' and instead provide specific examples of techniques and 
practices that would be expected to be implemented or followed. We have 
not revised the final rule in response to this comment. Similar 
language is found throughout SMCRA, and provides an appropriate level 
of flexibility for each regulatory authority to determine the 
applicability of techniques and practices on a case-by-case basis. It 
would be inappropriate to prescribe techniques and practices within the 
regulations

[[Page 93153]]

implementing SMCRA, as these may be site specific, and the best 
technology currently available and best practices are not static and 
evolve.
    In response to paragraph (c)(1) of the proposed rule, many 
commenters opposed the requirement to time mining operations as to 
avoid or minimize disruption of critical life cycle events for all fish 
and wildlife, such as migration, nesting, breeding, calving, and 
spawning. These commenters criticized the paragraph as either unclear, 
conflicting with other requirements, or overbroad and noted that, if 
implemented, it could halt all mining activity because these critical 
lifecycle events happen throughout the year. While it may, on a species 
by species basis, be necessary to time certain activities to avoid or 
minimize impacts on certain species, we generally agree with commenters 
that requiring it for all species would not be appropriate. Therefore, 
we have deleted this paragraph and renumbered the remaining paragraphs 
accordingly.
    Proposed paragraph (c)(2), now final paragraph (c)(1), requires a 
description of how the permittee will retain forest cover and other 
native vegetation as long as possible and time the removal of that 
vegetation to minimize adverse impacts on aquatic and terrestrial 
species. Some commenters alleged that this requirement is too difficult 
to comply with because timing the removal of forest cover and native 
vegetation for one species might conflict with the timing for another 
species. As an example, several commenters pointed out conflicts 
between cutting restrictions for endangered bats and the needs of other 
species. We do not agree with this concern. Paragraph (c) addresses the 
protection of non-listed species and related environmental values and 
requires applicants to minimize disturbances and adverse impacts on 
species ``to the extent possible using the best technology currently 
available.'' If it is not possible to time the removal of vegetation to 
minimize adverse impacts to a non-Endangered Species Act species 
because of other species considerations, such as the Endangered Species 
Act-listed Indiana Bat tree cutting guidelines, a description of why 
the vegetation must be cut at a specific time is sufficient to satisfy 
this requirement. We have not made any changes as a result of these 
comments as this paragraph provides sufficient flexibility to time the 
removal of forest cover and vegetation to best protect aquatic and 
terrestrial species, including endangered species.
    We received numerous comments, ranging from highly critical to very 
supportive, of the requirement in proposed paragraph (c)(3) that 
operations must maintain, to the extent possible, an intact forested 
stream buffer of at least 100 feet between surface disturbances and 
perennial and intermittent streams. We have deleted proposed paragraph 
(c)(3) because we have revised final Sec.  816.57(b) to include a 
prohibition on mining in or within 100 feet of a perennial or 
intermittent stream, subject to the exemptions contained in final Sec.  
780.28, making proposed paragraph (c)(3) of this section redundant. A 
discussion of all comments on the 100 foot stream buffer, including 
comments on proposed paragraph (c)(3), is available in the preamble 
discussion of Sec. Sec.  780.28 and 816.57.
    One commenter requested that we define or otherwise clarify the 
term ``environmental values'' as discussed in proposed paragraphs 
(c)(4), (5), and (d)(1) because the term is not currently defined 
within the proposed rule or previous regulations. We decline to define 
this term, because imposing a national definition for ``environmental 
values'' would be too restrictive and would not account for regional 
differences. The regulatory authority has the proper expertise to 
determine its meaning on a case-by-case basis.
    Proposed paragraph (c)(5) required the operator to periodically 
evaluate the impacts of the operation on fish, wildlife, and related 
environmental values in the permit and adjacent areas and to use of 
that information to modify the operations to avoid or minimize adverse 
effects. Several commenters expressed concern that we did not provide 
guidance on the appropriate frequency for these ``periodic 
evaluations'', on how rigorous the evaluation should be, and on who 
would be responsible for completing the evaluations. Some commenters 
recommended the removal of this paragraph because of concerns that 
operators might be required to change mining operations to offset 
impacts to wildlife beyond the control of the operators. We agree that 
the proposed rule language was ambiguous about how often the periodic 
review should be. In response, we are deleting this paragraph in the 
final rule and renumbering the remaining paragraphs. However, we have 
added a new requirement at final Sec.  774.10(a)(2) that requires the 
regulatory authority to review the impacts of the operation on fish, 
wildlife, and related environmental values in the permit and adjacent 
areas. This review must occur not later than the middle of each permit 
term except that permits with a term longer than five years must be 
reviewed no less frequently than the permit midterm or every five 
years, whichever is more frequent. The regulatory authority must use 
that evaluation to determine whether it is necessary to order the 
permittee to modify operations to avoid or minimize adverse impacts on 
those values. The regulatory authority has the discretion to determine 
the rigor of these periodic reviews, which is appropriate because they 
have the local expertise to determine whether the operation is having 
the anticipated impact on fish, wildlife and related environmental 
values and whether revisions are necessary. For example, if unexpected 
drought conditions cause protection and enhancement measures to be less 
effective than initially anticipated, the regulatory authority review 
of the fish and wildlife protection and enhancement plan should 
evaluate whether, and to what extent, revisions should be made to the 
permit to effectively implement section 515(b)(24) of SMCRA.\333\ The 
review under final Sec.  774.10(a)(2) is separate from any monitoring 
and evaluation requirements that may be required to ensure compliance 
with the Endangered Species Act.
---------------------------------------------------------------------------

    \333\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

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

[[Page 93154]]

achieve this purpose will not impede the establishment of permanent 
vegetation.
    Commenters questioned the benefits of using native vegetation in 
final paragraph (c)(3), alleging that non-native vegetation provides 
increased forage and habitat for turkey, deer, and elk. We do not 
agree. The best available science indicates that, on a broader 
ecological scale, planting native species contributes to the overall 
health of natural communities. Disturbances of intact ecosystems that 
open and fragment habitat, such as land clearing activities, increase 
the potential of invasion by alien species. Native plants provide 
important alternatives to alien species for conservation and 
restoration projects in these disturbed areas. Native species can 
satisfy many of the same land management needs that nonnative species 
do, but often with lower costs and maintenance requirements. Once 
established in an appropriate area, most native plant species are hardy 
and do not require watering, fertilizers, or pesticides.\334\ They 
generally require less watering and fertilizing than non-natives 
because they are adapted to local soils and climate conditions. They 
are less likely to need pesticides because they are often more 
resistant to insects and disease. Finally, local wildlife evolved along 
with local plants; therefore, wildlife readily uses native plant 
communities for food, cover and rearing young.
---------------------------------------------------------------------------

    \334\ Virginia Department of Conservation and Recreation. Native 
Plants for Conservation, Restoration, and Landscaping, (Sept. 2011). 
http://www.dcr.virginia.gov/natural-heritage//document/cp-nat-plants.pdf (last accessed Nov. 1, 2016).
---------------------------------------------------------------------------

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

    \335\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    Proposed paragraph (c)(7) is renumbered in the final rule as 
paragraph (c)(4). In the final rule we require a permittee to describe 
the plan for avoiding wetlands, perennial and intermittent streams, and 
habitat adjacent to perennial or intermittent streams. If avoidance of 
perennial or intermittent streams is not possible, we outline the steps 
to minimize impacts that must be taken in final paragraphs 
(c)(4)(i)(A)-(C).
    In final paragraph (c)(4)(i), we have added ``wetlands'' to the 
list of important habitat features that must, if possible, be avoided 
during mining. This change is in response to comments from other 
federal agencies who expressed concern that wetlands were not 
specifically mentioned in this paragraph. Adding the term ``wetlands'' 
to relevant sections of final paragraph (c)(4) and its subparts will 
ensure that operations avoid mining through wetlands as well as 
perennial and intermittent streams, and habitat adjacent to perennial 
or intermittent streams, if possible.
    One commenter expressed concern that the requirement in proposed 
paragraph (c)(7)(ii), final paragraph (c)(4)(i)(B), to ``minimize the 
length of the stream mined through,'' is duplicative of the Clean Water 
Act section 404 \336\ permitting program and is impermissible under 
section 702 of SMCRA.\337\ We disagree. Final paragraph (c)(4) is 
designed to ensure that operations use ``the best technology currently 
available [to] minimize disturbances and adverse impacts'' \338\ on the 
fish and wildlife that depend on the wetlands, perennial and 
intermittent streams, and habitat adjacent to perennial or intermittent 
streams. Thus, compliance with this provision of SMCRA is a separate, 
independent obligation on operators from requirements of the Clean 
Water Act.
---------------------------------------------------------------------------

    \336\ 33 U.S.C. 1344.
    \337\ 30 U.S.C. 1292.
    \338\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    In response to a comment we received from a federal agency we have 
added paragraph (c)(4)(ii) which requires the permittee to identify the 
authorizations, certifications, and permits required by the Clean Water 
Act, 33 U.S.C. 1251 et seq., and the steps the permittee will take or 
has taken to procure those authorizations, certifications, and permits. 
Furthermore, we point out that issuance of a permit does not authorize 
a permittee to conduct any surface mining activity in or affecting 
waters subject to the Clean Water Act until the appropriate Clean Water 
Act authorization, certification, or permit is obtained. Information 
submitted and analyses conducted under subchapter G of this chapter may 
inform the agency responsible for authorizations, certifications, and 
permits under the Clean Water Act, but they are not a substitute for 
the reviews, authorizations, certifications, and permits required under 
the Clean Water Act.
Final Paragraph (d): Enhancement Measures
    Proposed paragraph (d) required that permit applicants describe how 
they would use the best technology currently available to enhance fish, 
wildlife, and related environmental values both within and outside the 
area to be disturbed by mining activities, where practicable. Section 
515(b)(24) of SMCRA \339\ requires that surface coal mining and 
reclamation operations ``to the extent possible using the best 
technology currently available, minimize disturbances and adverse 
impacts of the operation on fish, wildlife, and related environmental 
values, and achieve enhancement of such resources where practicable.'' 
Therefore, to be consistent with the statutory language, final Sec.  
780.16(d)(1)(i) adds the qualifying phrase ``to the extent possible'' 
to the proposed rule.
---------------------------------------------------------------------------

    \339\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (d)(1) also included a list of twelve potential 
enhancement measures. Many commenters were generally supportive of 
these potential enhancement measures and as discussed below, we are 
adopting that list in revised form as final paragraph (d)(2). Others 
were concerned that these potential enhancement measures were 
requirements, or could be construed by regulatory authorities as 
mandatory enhancement measures to be performed on each permitted 
operation. Commenters explained that mandating conservation easements 
and/or deed restrictions may conflict with State Trust Lands, state 
agency goals and objectives, and result in unlawful takings or overly 
burdensome requirements that private landowners or local government 
agencies would not be willing to accept. These concerns are

[[Page 93155]]

misplaced as these enhancement measures are only provided as a list of 
potential measures to be used, to the extent possible. In addition, the 
list provided is not exhaustive, as regulatory authorities have the 
discretion to approve other types of enhancement measures on a case-by-
case basis. Other commenters interpreted proposed paragraph (d)(1) as 
requiring implementation of all twelve potential enhancement measures 
or, for each enhancement measure not used, an explanation of why that 
particular enhancement measure was not practicable. That was not our 
intent. Therefore, we modified proposed paragraph (d)(1) by separating 
it into final paragraphs (d)(1)(i) and (d)(1)(ii). New language in 
final paragraph (d)(1)(i) clarifies that the list of proposed 
enhancement measures in final paragraph (d)(2) is not exhaustive and 
that regulatory authorities may approve other enhancement measures. New 
language in final paragraph (d)(1)(ii) clarifies that if an applicant 
does not include any enhancement measure, it must explain, to the 
satisfaction of the regulatory authority, why implementation of 
enhancement measures is not practicable. An applicant does not have to 
address the practicability of all twelve potential enhancement 
measures.
    Several commenters alleged that it would be difficult to know 
whether an enhancement measure is ``practicable'' and expressed concern 
that a regulatory authority could force an applicant to enact all 
enhancement measures. However, this standard was present in our 
previous regulations and commenters did not identify any situations in 
which a regulatory authority had abused its discretion with respect to 
whether an enhancement measure was practicable. Therefore, we have not 
defined ``practicable'' in response to these comments.
    Commenters opined that it is inappropriate to allow enhancement 
measures distinct from the area to be disturbed by mining activities, 
especially if enhancement measures would take place in a location 
physically unconnected to the mine site. Allowing the regulatory 
authority the flexibility to approve enhancement measures in locations 
away from the disturbance area is necessary to fully realize the 
mandate in section 515(b)(24) of SMCRA to achieve enhancement of fish, 
wildlife, and related environmental values where practicable.\340\ 
While it is typically preferable to conduct enhancement measures on or 
near the disturbed areas, allowing enhancement measures away from the 
disturbed area provides significant flexibility and may, at times, be 
the most beneficial and/or practicable option. Further, there is no 
requirement within SMCRA that permitted sites must only contain lands 
spatially connected to one another.
---------------------------------------------------------------------------

    \340\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Commenters expressed concern with a perceived ambiguity of the 
phrase ``natural succession'' in proposed paragraph (d)(1)(iv), which 
is now final paragraph (d)(2)(iv), as it relates to the establishment 
or description of a native plant community. Commenters alleged that the 
term ``natural succession'' is too broad in concept and needs a 
specific definition. The commenters requested clarification of the term 
``natural succession'' and an explanation of why use of the term is 
necessary. We disagree that natural succession is an ambiguous concept. 
Our final rule uses the term ``natural succession'' in the standard 
ecological context of that term, which means the predictable maturation 
of the native vegetative community over time. The references to natural 
succession are not a prescriptive mandate for one particular type of 
plant community. Instead, we use the term ``natural succession'' as an 
outcome-based requirement aimed at ensuring that the types of plant 
communities that are initially established allow for the predictable 
maturation of the site. When a site would typically mature to forest, 
it would be appropriate to establish native vegetation that will not 
impede that process.
    One commenter suggested we promote the establishment of pollinator-
friendly species as described within Presidential Memorandum ``Creating 
a Federal Strategy to Promote the Health of Honey Bees and Other 
Pollinators.'' \341\ This suggestion furthers the goals not only of the 
Presidential Memorandum but also of SMCRA section 515(b)(24) \342\ 
because it clearly promotes fish, wildlife, and related environmental 
values. Consequently, we have added the clause ``establishing native 
plant communities designed to restore or expand native pollinator 
populations and habitats'' to final paragraph (d)(2)(iv) in response to 
this comment.
---------------------------------------------------------------------------

    \341\ Presidential Memorandum of June 20, 2014, Creating a 
Federal Strategy to Promote the Health of Honey Bees and Other 
Pollinators, 79 FR 35903 (June 24, 2014).
    \342\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Some commenters also recommended we revise Sec.  780.16(d)(2)(iv) 
and (v) as we have in the proposed rule at Sec.  780.16(c)(6), which is 
now final Sec.  780.16(c)(4), to allow non-native species to be used. 
We disagree. Because these paragraphs describe a choice of 
discretionary enhancement measures, they are appropriately more limited 
in scope than the requirements of final Sec.  780.16(c)(4). While the 
use of non-native species may, at times, be necessary, it should not be 
considered an enhancement measure.
    Another commenter sought clarification about how native forest and 
other native vegetation will be reestablished ``both within and outside 
of the permit area'' as stated in proposed paragraph (d)(1)(iv), which 
is now final paragraph (d)(2)(iv). The commenter asserted that this 
paragraph needed to be revised and limited to ``areas within the permit 
area'' that have been or will be disturbed by mining activities. We do 
not agree. This section provides optional measures to maximize 
opportunities to enhance restoration of native vegetation and natural 
wildlife habitat. Enhancement opportunities may arise within the permit 
boundary. However, where disturbance from mining may remove a 
significant portion of native forest or other native vegetation, it may 
be possible to look some distance outside of the disturbance area for 
opportunities to reestablish native vegetative cover during mining. The 
resulting benefits to species could be realized while mining was 
ongoing, thus offsetting some of the adverse impact on species caused 
by mining.
    This particular commenter also asserted that mining companies 
cannot operate outside approved permit areas; thus, according to the 
commenter, any regulation that requires lands not disturbed by mining 
activities to be affected would be contrary to SMCRA's requirement to 
minimize disturbances. We do not agree. Some of these measures could be 
implemented off-permit without adding land to the permit area if the 
enhancement activity would involve de minimis disturbance, as described 
in proposed Sec.  780.16(d)(3) and in final Sec.  780.16(d)(4). If 
reestablishment of native vegetation would involve more than a de 
minimis disturbance, or if excluding lands from a permit area would 
restrict the regulatory authority's ability to inspect and confirm 
completion of a permit term, then these lands could be made part of the 
permit area in order to implement the planned enhancement.
    Commenters stated that the enhancement measure at proposed 
paragraph (d)(1)(v), which is now final paragraph (d)(2)(v), involving 
the establishment of vegetative corridors at least 100 feet wide along 
each bank of

[[Page 93156]]

streams that lacked such buffers before mining, could be interpreted by 
a regulatory authority as requiring an artificial water source, 
especially in semi-arid states. Further, the commenters stated that the 
cost of providing these artificial water sources was not analyzed in 
the DEIS and that we did not evaluate legal considerations related to 
water rights in western regions. The commenters concern is misplaced. 
Nothing in this paragraph requires establishment of vegetation that 
would need an artificial water source. Use of vegetation that requires 
an artificial water source would be inconsistent with the purpose of 
the fish and wildlife enhancement measures in this rule, which is to 
encourage restoration or establishment of natural conditions using 
native species.
    Commenters voiced concern that proposed Sec.  780.16(d)(1)(v), 
which is now final Sec.  780.16(d)(2)(v), was too inflexible in 
requiring that, if an enhancement measure involved creating a 
vegetative corridor for a stream that previously lacked such a buffer, 
the buffer zone had to be at least 100 feet wide. We agree with this 
concern and have modified this paragraph to provide additional 
flexibility. The regulation now states a preference, but not a 
requirement, for a minimum 100-foot corridor for such enhancement 
measures. For clarity, we have also revised this requirement to 
describe the enhancement as the creation of a corridor where there is 
no such corridor before mining but where a vegetative corridor 
typically would exist under natural conditions.
    Another commenter was concerned that in the event extra material is 
needed to restore the 100-foot riparian zone and is stacked at the edge 
of the vegetative corridor, it could disrupt the mine operator's 
ability to restore the permit to approximate original contour or 
cropland use. The commenter did not provide an explanation as to why it 
may be necessary to stack extra material to create a vegetative 
corridor. However, regardless of the size of the hypothetical stack we 
do not anticipate this as an impediment to achieving approximate 
original contour. In the commenter's scenario the stacking would be 
temporary. Ultimately, the reclamation plan would require the material 
to be placed to achieve approximate original contour, establish the 
vegetative corridor consistent with this final rule, and the approved 
postmining land use. Accordingly, we have not modified the proposed 
rule in response to this comment.
    Proposed paragraph (d)(1)(vii), which is now final paragraph 
(d)(2)(vii), was modified to specify that permanently fencing off 
perennial and intermittent streams, as well as wetlands, from livestock 
was also an appropriate enhancement measure. This change was made to 
address federal agency concerns about inclusion of wetlands (as 
discussed above) and to retain consistency with other parts of the 
final rule about promoting the protection of wetlands.
    Final paragraph (d)(3), which we proposed as paragraph (d)(2), 
makes the use of enhancement measures mandatory where a proposed 
surface mining activity would result in the temporary or permanent loss 
of mature native forest or other native plant communities that cannot 
be restored fully before final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter or permanent loss of a segment of a 
perennial or intermittent stream. Final paragraph (d)(3)(ii), which we 
proposed as paragraph (d)(2)(ii), requires that the enhancement 
measures be commensurate with the magnitude of the long-term adverse 
impacts of the proposed operation and, ideally, be permanent.
    In the preamble discussion of proposed Sec.  780.16(d)(2), which is 
now final paragraph (d)(3), we explained that ``long-term'' means that 
the permittee would not be able to correct the resource loss before 
expiration of the period of extended revegetation responsibility as 
prescribed in proposed Sec.  816.115 and identified two examples of 
long-term loss: the removal of significant native forest cover and the 
burial of a perennial or intermittent stream segment by an excess spoil 
fill or coal mine waste disposal facility. We invited comment on 
whether there are other interpretations of ``long-term'' that we should 
consider. We received two comments in support of the proposed rule's 
preamble description of ``long-term'' and were offered no alternate 
definitions. We did, however, receive many comments requesting that we 
further clarify ``long-term'' within this section. In response to these 
comments we have revised this paragraph to clarify that ``long-term'' 
adverse impacts are either the permanent loss of wetlands, or segments 
of perennial or intermittent streams, or the temporary or permanent 
loss of mature native plant or forest communities that cannot be 
restored before bond release.
    In the preamble discussion of proposed Sec.  780.16(d)(2), which is 
now final Sec.  780.16(d)(3), we also invited comment on whether the 
regulatory authority may consider mitigation measures approved under 
the authority of the Clean Water Act as satisfying the separate SMCRA 
requirement for mandatory enhancement measures. We received comments in 
support of allowing Clean Water Act mitigation to satisfy the 
requirement for fish and wildlife enhancement measures under this 
paragraph. Mitigation required under the Clean Water Act may satisfy 
the fish and wildlife enhancement requirement under the final rule to 
the extent that mitigation under the Clean Water Act requires actual 
on-site enhancement activities. Payments into a general fund, as 
opposed to payments or activities directed to improvement or 
preservation of a specific stream or site, would not be acceptable 
because the general fund may be used to finance enhancement projects 
outside the coalfields and because it would not be possible to 
determine whether the payment into a general mitigation fund would be 
commensurate with the magnitude of long-term adverse impacts as 
required under final paragraph (d)(3)(ii).
    We received comments from federal agencies that wetlands should be 
included in proposed paragraph (d)(2)(i), which is now final paragraph 
(d)(3)(i)(B). We agree with this comment and have added wetlands to 
this paragraph.
    We also invited comment on proposed Sec.  780.16(d)(2)(ii), which 
is now final paragraph (d)(3)(ii), about whether our regulations should 
define ``commensurate'' in the context of ``long-term'' and, if so, how 
we should define that term. We received two comments in support of 
defining ``commensurate,'' but neither provided an example of a 
definition of that term. In light of the small number of affirmative 
responses and the fact that neither commenter provided any suggested 
definition, we do not believe that a definition is warranted. Instead, 
we have determined that the regulatory authority should have the 
flexibility to determine if the enhancement measures are commensurate 
to the magnitude of long-term adverse impacts of the proposed 
operation. Therefore, we are not adding a definition of 
``commensurate.''
    Final paragraph (d)(3)(iii)(A) provides that enhancement measures 
to address a proposed operation with long term effects must be 
implemented within the same watershed if possible. Otherwise, 
enhancement measures must be implemented in the closest watershed 
available as long as it is approved by the regulatory authority. Some 
commenters requested that we require the term ``watershed'' to be 
applied in accordance with the Hydrologic Unit Code to provide 
boundaries for the

[[Page 93157]]

enhancement measures. We disagree. The regulatory authority is in the 
best position to determine the scope and location of the enhancement 
measures. The regulatory authority may factor in the size of the 
watershed, which requires a case-by-case, region-by-region analysis and 
cooperation between the operators and the regulatory authority. In any 
case, the regulatory authority should have flexibility on these issues.
    A few commenters also requested that we identify the approach to be 
used in identifying suitable surrogate enhancements in adjacent 
watersheds and specify the criteria for determining the equivalent size 
and cost of enhancement. Commenters also requested that we provide a 
mitigation hierarchy similar to the 2008 Compensatory Mitigation for 
Losses of Aquatic Resources.\343\ We decline to make these changes. 
Because this information is best assessed on a case-by-case basis, the 
regulatory authorities should have the discretion to make these 
determinations.
---------------------------------------------------------------------------

    \343\ 73 FR 19594 (Jun. 9, 2008).
---------------------------------------------------------------------------

    One commenter requested we add language to proposed Sec.  
780.16(d)(2)(iii)(A), which is now final Sec.  780.16(d)(3)(iii)(A), to 
specify that, on federal lands, proposed enhancement measures would 
have to comply with the Federal Land Policy and Management Act,\344\ 
and be consistent with that federal land management agency's land use 
plan. We disagree. The suggested rule change is not necessary because, 
for federal lands, any areas upon which fish and wildlife enhancement 
measures are conducted will be part of the permit area and all proposed 
measures will be reviewed and processed as part of the SMCRA permit 
application and Mineral Leasing Act mining plan, as described in Parts 
740 through 746 of our regulations. Nothing in this or any other rule 
grants the permittee authority to take any action on federal lands that 
is inconsistent with any land management agency's land use plan or 
federal law.
---------------------------------------------------------------------------

    \344\ 43 U.S.C. 1701 et seq.
---------------------------------------------------------------------------

    Proposed paragraph (d)(2)(iv) provided that the regulatory 
authority must include a condition in the approved permit that requires 
the completion of the enhancement measures for operations with 
anticipated long-term adverse impacts. We received a comment that this 
language seemed circular because we were essentially requiring 
insertion of a permit condition requiring the applicant to comply with 
conditions of the permit. Upon consideration of this comment, we agree 
and have deleted the paragraph.
    Some commenters advocated removing proposed paragraph (d)(3), which 
is now final paragraph (d)(4), as inconsistent with SMCRA. 
Specifically, these commenters alleged that achievement of the 
enhancement requirements described in paragraph (d)(2) would always 
involve more than a de minimis disturbance of the surface land outside 
the area to be mined, and therefore would need to be placed within the 
permit. We do not agree that all enhancement measures would be 
considered more than a de minimis disturbance. In the final paragraph 
(d)(2), which we proposed as paragraph (d)(1), there are examples of 
enhancement measures that do not rise to the level of de minimis 
disturbance, such as establishing conservation easements or nest boxes 
for birds. Therefore, we have adopted final paragraph (d)(4) because it 
is important to allow small enhancement measures without the added 
burden of including those areas within the permit boundary.
    Another concern voiced by commenters is that if there is more than 
a de minimis disturbance to the lands associated with these enhancement 
measures, the revegetation standards within the permit must be met on 
these lands associated with the enhancement measures. We agree that if 
there is more than a de minimis disturbance to the land, for any 
reason, the area would have to be permitted under SMCRA and 
revegetation standards would have to be met. However, we did not revise 
the rule in response to this concern because there are numerous 
enhancement measures that can be completed that would not require 
adding additional land to the permit area, such as creating rock piles 
of value to raptors and other wildlife for nesting and shelter.
    Commenters also were concerned that the term ``de minimis 
disturbance'' is subjective and open to interpretation, and some 
commenters requested a definition of the term. We decline to define the 
term. Regulatory authorities are in the best position to determine what 
constitutes ``de minimis disturbance'' in each circumstance; therefore, 
a definition in these regulations is not necessary.
    Some of the same commenters further alleged that the enhancement 
measures and the terms describing the enhancement measures as 
prescribed by proposed Sec.  780.16(d)(3), now Sec.  780.16(d)(2), were 
inconsistent with other requirements in the proposed rule. 
Specifically, the commenters expressed concern that the terms 
``proposed operation'' and ``area to be mined'', are not defined in our 
previous regulations or the proposed rule. We are not making any 
changes in response to these comments. The commenters did not identify 
the alleged inconsistencies and the two terms, ``proposed operation'' 
and ``area to be mined'' are used throughout SMCRA, our previous and 
existing regulations, and are generally accepted terms in the mining 
industry.
    Similarly, several commenters stated that the enhancement option 
allowing the reclamation of ``previously mined areas located outside 
the area that you propose to disturb'' creates confusion as to whether 
activities related to the enhancement measures outside the mining area 
are considered a mining activity. Other commenters also expressed 
concern about a perceived inconsistency within proposed Sec.  
780.16(d)(2)(xi) and asked the following question: ``[i]s [the area] 
`outside the area you propose to disturb' to be included within the 
proposed permit area?'' We agree that this was confusing. Therefore, we 
have revised final Sec.  780.16(d)(2)(xi) to prescribe, ``[r]eclaiming 
previously mined areas located outside the area that you propose to 
disturb for coal extraction.'' This revision more clearly reflects that 
this area is within the permit area and related to mining activity, but 
is not an area of the permit that is proposed to be disturbed by coal 
extraction.
Final Paragraph (e): Fish and Wildlife Service and National Marine 
Fisheries Service Review
    Proposed Sec. Sec.  779.20(d) and 780.16(e) contained substantively 
identical provisions regarding U.S. Fish and Wildlife Service review of 
the fish and wildlife resource information and the fish and wildlife 
protection and enhancement plan, respectively. The final rule 
consolidates proposed Sec. Sec.  779.20(d) and 780.16(e) into final 
Sec.  780.16(e), both to streamline the regulations and in response to 
a comment noting that the Service reviews baseline fish and wildlife 
resource information together with the fish and wildlife protection and 
enhancement plan, not separately.
    We have modified paragraph (e) and other provisions of the final 
rule to reference the National Marine Fisheries Service because that 
agency, along with the U.S. Fish and Wildlife Service, shares 
responsibility for administration of the Endangered Species Act. This 
modification is necessary for accuracy and to clarify that, where 
applicable, such as in situations where anadromous fish or most species 
within a marine environment would be impacted, the regulatory authority 
must provide the

[[Page 93158]]

resource information, as explained within this section, to the National 
Marine Fisheries Service.
    Final paragraph (e)(1)(i) requires the regulatory authority to 
provide both the protection and enhancement plan developed under this 
section and the resource information required under final Sec.  779.20 
to the appropriate regional or field office of the U.S. Fish and 
Wildlife Service or to the National Marine Fisheries Service, as 
applicable, when that information includes species listed as threatened 
or endangered under the Endangered Species Act, critical habitat 
designated under that law, or species proposed for listing as 
threatened or endangered under that law. The regulatory authority must 
provide both the resource information and the protection and 
enhancement plan to the appropriate Service(s) no later than the time 
that it provides written notice of the permit application to 
governmental agencies under existing Sec.  773.6(a)(3)(ii).
    Several commenters supported this provision because it would ensure 
better coordination and sharing of information among the applicant, the 
regulatory authority, and the applicable Service early in the 
permitting process. Other commenters, however, were confused by these 
transmittal requirements, at least as they stood in the proposed rule 
where we had placed them in two separate sections. Proposed Sec.  
779.20(d)(1)(i) contained the requirement to transmit resource 
information to the Service(s) at the time the application is filed with 
the regulatory authority, while proposed Sec.  780.16(e)(1)(i) 
contained the requirement to transmit the protection and enhancement 
plan. The commenters criticized us for creating redundant requirements, 
asserting that the U.S. Fish and Wildlife Service review of baseline 
wildlife information in the permit application was an unnecessary step 
because Sec.  780.16 already allowed the agency to review this 
information in connection with the fish and wildlife enhancement plan. 
In response to these comments, we consolidated the two provisions in 
final Sec.  780.16(e)(1)(i).
    Final paragraph (e)(1)(ii) is similar to our previous regulations, 
which allowed the U.S. Fish and Wildlife Service to request fish and 
wildlife resource information and the fish and wildlife protection and 
enhancement plan submitted as part of a permit application when the 
information in those applications does not include species listed as 
threatened or endangered under the Endangered Species Act, critical 
habitat designated under that law, or species proposed for listing as 
threatened or endangered under that law. Under both the previous 
regulations and the final rule, the regulatory authority must provide 
that information to the U.S. Fish and Wildlife Service within ten days 
of receipt of the request.
    Proposed Sec. Sec.  779.20(d)(2)(ii) through (iv) and 
780.16(e)(2)(ii) through (iv) prescribed how the regulatory authority 
must handle comments received from the U.S. Fish and Wildlife Service 
and how any disagreements must be resolved. These provisions mirrored 
the 1996 Biological Opinion \345\ dispute resolution process. We 
received many comments, both in support of and opposed to these 
requirements. After considering these comments, we decided not to adopt 
proposed Sec. Sec.  779.20(d)(2)(ii) through (iv) and 780.16(e)(2)(ii) 
through (iv). Instead, final Sec.  773.15(j) provides applicants and 
regulatory authorities with several pathways for demonstrating 
compliance with the Endangered Species Act.
---------------------------------------------------------------------------

    \345\ 1996 Biological Opinion and Conference Report (1996 
Biological Opinion), Consultation Conducted by the U.S. Dep't. of 
the Interior, U.S. Fish and Wildlife Serv. regarding Endangered 
Species Act--Section 7 Consultation. Effective September 24, 1996.
---------------------------------------------------------------------------

Previous Sec.  780.18: Reclamation Plan: General Requirements
    We have removed and reserved previous Sec.  780.18. As discussed in 
the preamble to the proposed rule we have revised many aspects of 
previous Sec.  780.18 and moved it to final rule Sec.  780.12.\346\
---------------------------------------------------------------------------

    \346\ 80 FR 44436, 44487-44493 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 780.19: What baseline information on hydrology, geology, and 
aquatic biology must I provide?
    This section establishes the baseline information on hydrology, 
geology, and aquatic biology that is required to be contained within 
the permit application. We received many comments both supporting and 
objecting to this section; these comments are addressed below.
    Several commenters addressed this section in its entirety. Of these 
commenters, some supported the revisions within the proposed rule that 
would require more extensive baseline data collection and found the 
revisions to be both attainable and prudent. In contrast, other 
commenters opposed the proposed revisions and requested that they be 
removed from the final rule. The commenters opposing the revisions 
generally considered the proposed baseline collection requirements to 
be too costly, not beneficial, duplicative of the Clean Water Act, in 
violation of section 702 of SMCRA,\347\ and inappropriate for inclusion 
in the regulations at a national or even regional scale. Commenters' 
concerns regarding duplication of the Clean Water Act are discussed in 
Part IV.I., above. We have made a number of changes to the baseline 
data collection requirements of the final rule in response to some of 
these general comments as well as more specific comments, described 
below.
---------------------------------------------------------------------------

    \347\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    One commenter suggested that we should require the applicant to 
monitor all baseline monitoring sites for all parameters throughout the 
life of the permit to ensure uniformity of the water-quality data; thus 
enhancing the ability to detect adverse impacts from the coal mining 
operation. We agree with the commenter that baseline monitoring sites 
need to be monitored throughout mining and reclamation. However, unlike 
the commenter, we recognize the need for flexibility; i.e., that the 
frequency and parameter lists of the monitoring sites could be modified 
based on site specific factors, as long as sufficient data are 
collected to adequately assess these resources. After baseline 
monitoring has been completed and mining has commenced, the operator 
can use the permit revision procedures of Sec.  774.13 to request that 
the regulatory authority modify the monitoring requirements established 
in the permit.
    A commenter commended us for requiring monthly collection of 
baseline samples as discussed in paragraphs (b)(6)(ii)(A) and 
(c)(4)(ii)(A), and excluding samples collected during abnormal 
hydrologic events. In contrast, however, many commenters thought 
collecting twelve monthly, evenly spaced, samples of groundwater and 
surface water was not necessary to establish seasonal variation and did 
nothing but add time to the permitting process and substantially 
increase costs. We disagree with this assertion. A study by the U.S. 
Environmental Protection Agency in 2001 \348\ indicated that twelve, 
evenly spaced samples were the absolute minimum to establish 
statistical rigor. As a result, we have retained this provision; 
however, we have provided the regulatory authority with some discretion 
as it relates to establishing the groundwater baseline. We discuss the 
rationale for this and change in rule language further in the

[[Page 93159]]

preamble discussion of paragraph (b). In response to other comments 
about these paragraphs, however, we clarified the extent of the 
baseline sample period by adding the term ``approximately'' with 
respect to the requirement for ``equally spaced monthly intervals.'' 
Several commenters objected to the former terminology and requested 
latitude to account for variations in field conditions. We did not 
intend the ``equally spaced monthly intervals'' to be interpreted to 
mean that there could be no variation in the monthly spacing intervals, 
but we recognize that the proposed rule could be misinterpreted. 
Therefore, we have revised the final rule at paragraphs (b)(6) about 
groundwater and (c)(4) about surface water to provide discretion 
regarding the sampling intervals. This change also responds to comments 
received from several regulatory authorities, which expressed concern 
that dangerous weather conditions and frozen streams could make it 
dangerous or impossible to collect evenly spaced monthly samples. These 
regulatory authorities noted specifically that significant snow packs 
and icy conditions can occur, particularly in the western and northern 
reaches of the coalfields. Because of groundwater contributions to 
intermittent and perennial streams, completely frozen streams are rare 
in most circumstances. Despite this rarity, we recognize the importance 
of providing the regulatory authority discretion as to what constitutes 
approximately equally spaced sampling intervals, so that dangerous 
conditions and the need to sample of completely frozen streams can be 
avoided. In addition, we have added paragraphs (b)(6)(ii)(B) and 
(c)(4)(ii)(B) to provide the regulatory authorities flexibility to 
modify the intervals to ensure the safety of personnel while conducting 
groundwater and surface water sampling trips and in the rare cases of 
completely frozen streams.
---------------------------------------------------------------------------

    \348\ U.S. Envtl. Prot. Agency, Office of Water, Statistical 
Analysis of Abandoned Mine Drainage in the Establishment of the 
Baseline Pollution Load for Coal Re-mining Permits, 266, EPA-821-B-
01-014, (Dec. 2001).
---------------------------------------------------------------------------

    We also modified the language of the paragraphs (b) and (c) 
concerning the use of the Palmer Drought Severity Index as a trigger to 
extend baseline sampling. The proposed rule contained a ``+/- 3.0'' 
standard. Several states provided an analysis of this standard for 
their respective states, which concluded that long periods of time 
existed during which daily or weekly Palmer Drought Severity Index 
exceeded +/- 3.0. The result of these analyses indicate that the time 
required under the proposed rule to collect baseline data would be 
extended for multiple years in order to meet that standard. In 
response, we have removed the reference to the Palmer Drought Severity 
Index in the context of extending the baseline data collection period.
    Another commenter opined that we did not conduct a frequency 
analysis to determine the cost of collecting and analyzing the 
disqualified baseline data to the industry, or the uncertainty of the 
cost to a mining company to obtain permits in a timely manner. The 
change discussed above removes the need for us to analyze costs to 
industry for collecting and analyzing disqualified data and for 
extended permit processing time.
    Certain paragraphs of the final rule, however, still require that 
the Palmer Drought Severity Index be noted during sample collection to 
give a sense of magnitude to precipitation deficits or surpluses. This 
notation will provide important context to the baseline data collected 
with regard to water quality and quantity. The final rule also provides 
discretion to the regulatory authority to extend the baseline sampling 
period to ensure that the baseline data collected at the site is 
representative of the premining hydrology in the area if National 
Oceanic Atmospheric Administration, or other atmospheric databases, 
including the Palmer Drought Severity Index, indicate weather 
conditions were highly unusual during the baseline sampling period.
    A commenter asserted that the proposed rule does not specify how 
all samples will be collected and analyzed or identify appropriate 
analytic methods. We have not altered the final rule in response to 
this comment because it is inappropriate to provide more than a 
framework from which to collect baseline samples due to the wide 
variety of standardized methods available to collect and analyze water. 
Commenters also claimed that we should allow the use of statistical 
methods and qualitative assessments to establish watershed baseline 
conditions. Qualitative assessments do not satisfy the intent of 
establishing the baseline conditions in a watershed. Instead of 
conducting a qualitative assessment to establish the baseline 
conditions in a watershed, it is important to collect actual baseline 
data for the permit. However, the final rule allows regulatory 
discretion in determining the statistical methods used to assess the 
baseline data collected for the permit application.
Final Paragraph (a)(1): General Requirements
    In paragraph (a)(1), we are finalizing the requirements for the 
baseline information on hydrology, geology, and aquatic biology that 
must be included within a permit application. We proposed that this 
information be provided in ``sufficient detail'' to assist the 
applicant in developing valid probable hydrologic consequences 
conclusions and to help the regulatory authority make certain 
hydrologic determinations. Several commenters requested that we clarify 
the meaning of ``sufficient detail'' or otherwise provide specific 
guidance to ensure consistency in the permitting process. A definition 
is unnecessary. Section 780.20, ``How must I prepare the determination 
of the probable hydrologic consequences of my proposed operation?'', 
describes the objective of this part, which is to ensure that the 
permit applicant provides the regulatory authority with comprehensive 
and reliable information on how it proposes to conduct surface mining 
activities and reclaim the disturbed area in compliance with the Act, 
this chapter, and the regulatory program. Therefore, each regulatory 
authority is in the best position to provide guidance on what 
constitutes ``sufficient detail'' to meet that program's requirements.
    One commenter alleged that we failed to define ``probable'' in 
Sec.  780.19(a)(1) and should provide a definition or further elaborate 
on what is sufficient to satisfy the probable hydrologic consequences 
of the operation. Webster's dictionary defines probable as ``likely to 
happen or to be true but not certain.'' \349\ This common definition 
adequately describes the intent of the certainty of events that need to 
be evaluated when determining the probable hydrologic consequences and 
no further regulatory definition is needed.
---------------------------------------------------------------------------

    \349\ probable. 2016. In Merriam-Webster.com. Retrieved Nov. 2, 
2016, from http://www.merriam-webster.com/dictionary/probable. 
Oxford Univ. Press.
---------------------------------------------------------------------------

    Several commenters expressed concern about the ability to acquire 
landowner permission for sampling in the adjacent area for baseline or 
monitoring purposes. We are aware of this concern, but it has been an 
issue since SMCRA was passed and has been successfully navigated for 
the past 35 years. Furthermore, the regulatory authority has the 
latitude to modify sampling locations when landowner access is 
problematic.
    Several commenters were opposed to proposed paragraph (a)(4), now 
paragraph (a)(1)(iv), which would have required baseline information in 
sufficient detail to assist the regulatory authority in preparing the 
cumulative hydrologic impact assessment. As

[[Page 93160]]

required by Sec.  780.21, the cumulative hydrologic impact assessment 
includes an evaluation of whether the proposed operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area. These commenters criticized a perceived lack of 
sufficient technical guidance with respect to the information and 
metrics needed in the cumulative hydrologic impact assessment. Because 
these comments are more relevant to Sec.  780.21, relating to 
requirements that apply to the preparation and review of the cumulative 
hydrologic impact assessment, these comments are addressed within that 
section.
Final Paragraph (a)(2): Core Baseline Water-Quality Data Requirements 
for Surface Water and Groundwater
    In response to many of the general comments outlined above, we have 
made changes to the baseline data collection requirements. 
Significantly, we have removed six parameters that we proposed to have 
operators collect and analyze in surface water and groundwater--
ammonia, arsenic, cadmium, copper, nitrogen, and zinc.\350\ Removing 
these parameters will reduce the amount of data collected and the 
potential for duplication without reducing the protections proposed. 
First, information on the presence or absence of the parameters we 
removed is available under an existing Clean Water Act process. 
Pursuant to 40 CFR 122.44(d), the Clean Water Act NPDES permitting 
authority completes a reasonable potential analysis and develops permit 
limits for any pollutant in an authorized discharge that has a 
reasonable potential to cause or contribute to an exceedance of water 
quality criteria. The parameters we removed, except for ammonia and 
nitrogen, are contained in the parameter list for the baseline 
determination for reasonable potential analysis. Second, state 
regulatory agencies indicated these parameters are rarely found in mine 
effluent in appreciable concentrations. Third, we have made revisions 
to the final rule to ensure that regulatory authorities have the 
flexibility to require collection of additional parameters and/or 
monitoring. Specifically, we added language to Sec. Sec.  780.19(b)(4) 
and 780.19(c)(2) to clarify that a regulatory authority can require 
baseline collection of any parameter that is not on the list of 
parameters contained in these regulations. One commenter mistakenly 
asserted that because we have identified the parameter specific 
conductance as a core baseline water-quality requirement, we are, by 
default, enforcing an effluent limit standard for conductivity. We do 
not prescribe the water quality standards for discharges from mine 
sites. Instead, the Clean Water Act authority makes those 
determinations.\351\ Inclusion of the parameter specific conductance in 
the baseline sampling as part of the baseline sampling protocol is 
meant to provide another parameter to help establish the premining 
water-quality conditions.
---------------------------------------------------------------------------

    \350\ 80 FR 44436, 44600-44601 (Jul. 27, 2015).
    \351\ See, e.g., U.S. Envtl. Prot. Agency, A Field-Based Aquatic 
Life Benchmark for Conductivity in Central Appalachian Streams 76 FR 
30938 (May 27, 2011).
---------------------------------------------------------------------------

    A number of commenters suggested various parameters be added or 
deleted from the baseline data collection list found in proposed Sec.  
780.19.\352\ Conversely, a number of commenters objected to the 
expanded list as too costly, too burdensome to collect, analyze, or 
review, and without offering any real benefit to establishing the 
baseline condition in the streams. Several commenters took a more 
moderate approach and suggested that any extra parameters beyond those 
required over the last 30 years should be considered for discretionary 
inclusion by each regulatory authority and not be part of a nationwide 
list. As discussed above, we have removed several parameters from the 
mandatory list in response to commenters' suggestions. We have also 
declined to add other parameters to a nationwide list, but the rule 
affords necessary discretion to the regulatory authority to add other 
parameters if deemed useful at a particular site. Within the final 
rule, for the sake of clarity, we have listed the parameters in a table 
located in renumbered Sec.  780.19(a)(2) for both surface water and 
groundwater.
---------------------------------------------------------------------------

    \352\ 80 FR 44436, 44600-44601 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several commenters suggested the cation-anion balance requirement 
should be removed from the parameter list unless laboratory data is 
suspected to be inaccurate. The cation-anion ratio is a measure of the 
electrical neutrality of the water sample. To achieve electrical 
neutrality, the sum total of the negatively charged particles (anions) 
must equal the sum of the positively charged particles (cations). When 
the two are approximately equal, two things are evident--no ions with 
substantive concentrations are missing from the sample and the analysis 
is accurate. Analyzing just the major cations and anions will not 
usually result in exact proportions of positive and negative ions 
because not every ion is analyzed. When the ratio is not within 
approximately 10%, it indicates that either the analysis is flawed by 
under or over-reporting the ionic content of a particular ion or an ion 
constituting a significant portion of the water sample is missing. For 
either reason, the cation-anion balance is a quick, easy, and 
inexpensive method of performing quality assurance and quality control 
of the water sample. For these reasons, we have retained the cation-
anion balance requirement. We also note that most labs report this 
ratio when the major cations and anions are analyzed.
    A commenter suggested that the preamble discuss the differences in 
how variations in selenium speciation impacts aquatic life. Selenium 
speciation refers to the different forms of selenium (elemental, 
selenate, selenite, and selenide). A fact sheet from the California 
Resources Agency provides a concise summary, which we paraphrase 
here.\353\ Selenium has a complex environmental chemistry. In natural 
systems, it occurs in four different chemical (oxidation or valence) 
forms: Selenide (Se2-); elemental selenium (Se0); selenite (Se4+), and 
selenate (Se6+). The form selenium takes in nature depends on a variety 
of environmental conditions, and the chemical form is very important in 
understanding how it affects aquatic life. In alkaline surface waters 
that are commonly found in arid areas, selenium occurs mainly as 
soluble selenate salts that are highly mobile because they are soluble 
in water and do not adhere well to soils. Selenates can be reduced to 
selenites, which are more readily accumulated by fish and other aquatic 
organisms. Selenites may be converted to elemental selenium, which is 
not very soluble in water and is not readily taken up by plants or 
animals. In sediment, most of the selenium may occur in the elemental 
form. If sediments become oxidized (exposed to air) most of the 
selenium can be converted to selenates and selenites. Metal and organic 
selenides also are common in bottom sediments. Like elemental selenium, 
selenides can become oxidized to forms that are more available to 
plants and wildlife. Organic forms of selenium also occur in or are 
produced by plants and animals. While the organic forms of selenium are 
typically less abundant than inorganic selenium (selenate and 
selenite), the

[[Page 93161]]

organic forms are important from a biological toxicity standpoint.
---------------------------------------------------------------------------

    \353\ State of California Res. Agency, Fact Sheet: Selenium and 
Its Importance to the Salton Sea (Feb. 2005), http://www.water.ca.gov/serp.cfm?q=selinium&cx=001779225245372747843%3Amxwnbyjgliw&cof=FORID%3A10&ie=UTF-8&submit.x=13&submit.y=3. (last accessed Nov. 1, 2016).
---------------------------------------------------------------------------

    Despite these differences in selenium speciation, we find no need 
to revise the proposed rule in response to this comment. Like the 
proposed rule, the final rule at Sec.  780.19(b) requires baseline data 
on total and dissolved selenium in surface water and the dissolved 
fraction in groundwater. Other provisions of Sec.  780.19 require 
detailed baseline information on geology, including geochemistry. This 
combination should be adequate for the applicant to prepare a probable 
hydrologic consequences determination, as discussed in Sec.  780.20, 
that predicts the impact of the proposed operation on levels of 
selenium and other parameters in surface water and a hydrologic 
reclamation plan, as discussed in Sec.  780.22, that explains how the 
applicant will address adverse impacts and prevent material damage 
outside the permit area. The regulatory authority must independently 
prepare a cumulative hydrologic impact assessment of whether the 
proposed operation would cause material damage to the hydrologic 
balance outside the permit area in conformity with Sec.  780.21.
    Several commenters suggested that we require testing for dissolved 
analytes instead of total analytes for groundwater. We agreed with the 
suggestions because under ideal conditions (proper well construction, 
well development, and groundwater sampling procedures) field-filtered 
groundwater samples (dissolved) should yield identical metal 
concentrations when compared to unfiltered groundwater samples; \354\ 
hence, we have made the change at Sec.  780.19(a)(2) of the final rule.
---------------------------------------------------------------------------

    \354\ Robert A. Saar, Filtration of ground water Samples: A 
review of Industry practice, 17(1) Groundwater Monitoring and 
Remediation, 56-62, (Feb. 1997); U.S. Envtl. Prot. Agency, Envtl. 
Engineering Committee of the Science Advisory Board, To filter, or 
not to filter; That is the question, 1997, EPA-SAB-EEC-LTR-97-011, 
(Sept. 1997).
---------------------------------------------------------------------------

    One commenter suggested that, when evaluating stream function, more 
than flow data should be collected. The commenter further opined that 
the baseline data collection should include an evaluation of the 
premining hydrological regime and the material composition of stream 
beds, flow patterns, water chemistry, and surface water temperature. We 
agree, however, all of these requirements, except temperature, are 
addressed in the proposed rule that we are finalizing today at 
paragraph (c)(6)(iii)(A) and Sec.  784.19(c)(6)(i)(A). The omission of 
water temperature from paragraph (c)(6)(iii)(A) and Sec.  
784.19(c)(6)(i)(A) was an oversight. It is important to require water 
temperature measurements for all water-quality samples because water 
temperature influences biological activity and water chemistry. Based 
on the commenter's suggestion, we have revised the parameters in 
paragraph (a)(2) of this section to include temperature within the 
baseline data collection requirements for surface water and 
groundwater.
Final Paragraph (b): Groundwater Information
    Several commenters raised concerns with Sec.  780.19(b)(2) about 
baseline collection requirements when an underground mine is present 
within the permit or adjacent area. One commenter asserted that the 
need for the requirement was too narrow and that this change lacked 
justification. Another commenter thought sampling all mine works within 
500 feet of the proposed operation should be sufficient. We disagree 
with both of these comments. Both the regulatory authority and the 
applicant need to understand the spatial and temporal relationships of 
adjacent and/or overlying mine works. Both entities need to analyze 
water quality and quantity data regarding underground mine pools in 
areas adjacent to proposed permitting actions; especially if the mine 
works are hydrologically connected to the proposed permitted area. This 
information and data are necessary for the applicant to analyze the 
probable hydrologic consequences and for the regulatory authority to 
develop the cumulative hydrologic impact assessment. We note, however, 
that the applicant is not required to undertake the sampling unless the 
regulatory authority finds that a hydrologic connection exists between 
the adjacent or overlying underground mine and the proposed operation. 
When permitting an operation that may hydrologically impact an adjacent 
underground mine pool, there is no justification for ignoring that 
connection. Hydrologically connected underground mine pools may result 
in the need for treatment facilities because the water quality in those 
mine pools may affect the proposed operation and may also pose 
significant environmental and safety concerns if the new operation 
causes problems due to underground openings that are flooded or gas-
filled.
    In proposed paragraph (b)(2), we required an assessment of the 
characteristics of underground mine pools present in the permit area 
and stated that the determination of the probable hydrologic 
consequences required under Sec.  780.20 must include a discussion of 
the effect of the proposed mining operation on ``any'' underground mine 
pools within the proposed permit and adjacent areas. One commenter 
objected to the unilateral treatment of underground mine pools. The 
commenter argued that mine pools below drainage elevation have a low 
chance or historic incidence of impacting surface hydrology. Thus, the 
commenter alleged that applying this provision to mine pools below 
drainage elevation would add effort and expense with limited to no 
environmental benefits. We decline to make modifications based on this 
comment for several reasons. First, all underground mine pools are part 
of a hydrologic system whether there classified as above drainage or 
below drainage.\355\ Information about how mine pools affect baseline 
hydrologic conditions is necessary to estimate the impacts the proposed 
operation will have on the hydrologic system, including mine pools. 
Second, several examples exist of active coal mining operations 
breaching flooded adjacent mines and inundating the active mines with 
water.\356\ Consequently, knowing the extent and characteristics of 
adjacent mine pools is a vital piece of information for both safety and 
environmental reasons. Third, contrary to the commenter's statements, 
examples exist of flooded underground mine pools discharging to 
streams.\357\ For these reasons, we are retaining the requirement for 
an assessment of the characteristics of any underground mine pool 
within the permit area or adjacent areas as proposed.
---------------------------------------------------------------------------

    \355\ David M. Light & Joseph J. Donovan,, Mine-water flow 
between contiguous flooded underground coal mines with hydraulically 
comprised barriers, 21(2) Environmental & Engineering Geoscience, 
147-164, (May 2015).
    \356\ J. Donovan, et al., 6th ICARDS Cairns, QLD, pp. 869-875 
(2003); Pennsylvania Dep't. of Envtl. Prot., Report of Comm'n. on 
Abandoned Mine Voids and Mine Safety, p. 3 (2002).
    \357\ J.W. Hawkins and M. Dunn, Final report Fairmont, West 
Virginia mine-pool, Hydrologic characteristics of a 35-year-old 
underground mine pool, U.S. Dep't. of the Interior, OSMRE, Mine 
Water and the Environment, Vol. 26, pp. 150-159 (2014).
---------------------------------------------------------------------------

    Another commenter alleged that we provided no details on the 
methods that the applicant should use to assess seasonal changes in 
quality, quantity, and flow patterns in a given mine pool. They also 
asserted that we provided no information about how the applicant should 
demonstrate that the mine pool is or is not physically connected to the 
proposed operation. Details on assessing seasonal changes and 
associated methodology are best left to the discretion of the 
regulatory authority. Industry and the technical reviewers

[[Page 93162]]

have a wide array of skills, expertise, and methods that enable this 
requirement to be addressed. With respect to demonstrating the 
hydraulic connection between mine pools, methods exist to provide a 
reasonable demonstration of hydraulic interaction. These methods 
include installation of piezometers in the strata of interest with an 
assessment of the hydraulic head, groundwater movement patterns, and 
structural geology influences between the mine site and adjacent 
mining.
    Several commenters suggested that the ``modeling'' we specified for 
predicting mine pools has not yet been developed or validated for most 
mining regions and therefore is not practicable. We disagree with these 
comments. Modeling is a broad term and incorporates the entire range of 
models from simple mathematical models to complex numerical models. We 
are not prescribing the exact modeling methods to be used; the 
regulatory authority has discretion to make this determination on the 
level of detail required.
    Related to paragraph (b)(3), ``[m]onitoring wells,'' several 
commenters suggested we remove the phrase ``when necessary'' from 
Sec. Sec.  780.19(b)(3) and 784.19(b)(3) with respect to when an 
applicant must install monitoring wells to document seasonal 
groundwater variation. We agree with the commenter and have made this 
change because the information is necessary to determine groundwater 
movement of parameters to down gradient water bodies and to be able to 
evaluate impacts to groundwater quantity and quality as a result of the 
mining operation.
    Several commenters suggested that groundwater quantity measurements 
required in paragraph (b)(5) for each coal seam and aquifer are not 
necessary to establish baseline characterization and did nothing but 
add additional cost. Another commenter asserted that installation of up 
and down gradient monitoring wells, as required by paragraph (b)(6), is 
not necessary because it adds unnecessary time and cost to the 
permitting process and should be left to the discretion of the 
regulatory authority. We disagree with these comments. Groundwater 
levels can change over relatively large areas as the result of surface 
and underground coal mining. Changes in groundwater levels can affect 
groundwater flow direction, travel times, and water quality, 
potentially resulting in adverse impacts to the hydrology within and 
outside the permit area. Without adequate monitoring in place, it 
becomes significantly harder to do the evaluation and to correct the 
problem before it becomes more widespread.
    A commenter opined that the groundwater data that we proposed to 
require in paragraph (b)(5) is insufficient to establish groundwater 
quantity and that groundwater discharge rates or usage rates as 
required in this section do not represent groundwater quantity. The 
commenter asserted that the direction of groundwater flow (horizontally 
and vertically) requires elevation data, not just depth to water data. 
We agree and have modified the final rule text requiring elevation data 
for water table surfaces and potentiometric head surfaces. The same 
commenter asserted that to determine the quantity of groundwater, an 
operator would need information on the geometry of the aquifer (area 
times saturated thickness). The commenter suggested that we require 
information on the areal extent of aquifers and saturated thickness. We 
agree with the commenter and have revised the final rule text to 
require that the applicant determine the areal extent and thickness of 
aquifers. Although we agree with the commenter that groundwater 
discharge rates or usage rates do not represent groundwater quantity, 
we have retained the requirement for this information in the final rule 
because it is closely associated with groundwater quantity.
    Several commenters objected to the use of the term ``water bearing 
stratum'' in proposed paragraph (b)(5). In response, we have changed 
the term ``water bearing stratum'' to ``aquifer'' in recognition of 
commenters' concern that, as proposed, this provision might have been 
misinterpreted to include water contained in rock units that do not 
sufficiently supply water in usable quantities. The term ``aquifer'' is 
used in hydrogeology to denote water bearing units with properties to 
yield water in economic quantities sufficient to supply domestic or 
public water wells. We are aware of the use of perched aquifer systems 
in many states, and this terminology change helps satisfy the 
commenter's concern and affords users of these systems the sampling, 
monitoring, and protections found in the revised regulations.
    One commenter opposed our limits on using extrapolated measurements 
to determine seasonal variations in groundwater and surface water 
quality. Like the proposed rule, the final rule does not allow 
extrapolated data to be used because based on our past experience, 
extrapolating data is not a reliably accurate method to document and 
describe seasonal variations in chemical parameters. Because seasonal 
variations can be significant, we require collection of this data.
    One commenter stated that the requirements related to the frequency 
and duration of data collection and requirement for the geographic 
distribution of wells in proposed, and now final paragraph (b)(6), are 
welcome additions to the groundwater characterization requirements.
    Several commenters suggested that groundwater quality does not 
change much over the course of a month or a year; therefore, twelve 
monthly samples should not be required. We agree and have revised the 
final rule by adding paragraph (b)(6)(ii)(C), which affords the 
regulatory authority discretion to grant the applicant an option to 
collect eight samples spread over two years with certain conditions. 
Specifically, the regulatory authority may initiate review of the 
permit application after collection and analysis of the first four 
quarterly groundwater samples, but it may not approve the application 
until after receipt and analysis of the final four quarterly 
groundwater samples. We are allowing regulatory authority to start 
reviewing the application because the likelihood of the groundwater 
data substantially changing during the final four quarters is low due 
to typically slow groundwater travel times.
Final Paragraph (c): Surface-Water Information
    One commenter expressed concern with proposed paragraph (c)(2)(xix) 
relating to surface water quality descriptions, which would have 
required baseline information for any parameter added to a National 
Pollutant Discharge Elimination System permit. The commenter indicated 
that this requirement would cause unnecessary delays to the SMCRA 
permit review process because the National Pollutant Discharge 
Elimination System permit is often not obtained until later in the 
SMCRA permitting process, which could require the applicant to redo the 
baseline collection data. We agree and have revised the rule to clarify 
that the National Pollutant Discharge Elimination System parameter 
requirement would apply only when those parameters are known at the 
time of permit application. This change should ensure that there are no 
unnecessary permitting delays as a result of this requirement.
    One commenter noted that the requirements in proposed paragraph 
(c)(3)(i) referring to ephemeral streams contradicted with the 
requirements in proposed paragraph (c)(4)(i). In proposed paragraph 
(c)(3)(i), we specified that the applicant provide

[[Page 93163]]

baseline information on seasonal flow variations and peak-flow 
magnitude and frequency for all perennial, intermittent, and ephemeral 
streams and other surface-water discharges within the proposed permit 
and adjacent areas. However, proposed paragraph (c)(4)(i) specified a 
requirement that the permit applicant establish monitoring points in a 
representative number of ephemeral streams within the proposed permit 
area, to ensure collection of data sufficient to fully describe 
baseline surface water conditions. For clarity, the monitoring 
requirements for a representative sample of ephemeral streams has been 
retained in final paragraph (c)(4)(i)(B) and removed from final 
paragraph (c)(3), which now only applies to perennial and intermittent 
streams. As discussed in the preamble to the proposed rule,\358\ we 
proposed to modify the previous regulations to require the use of 
generally-accepted professional flow measurement techniques to ensure 
the accuracy of baseline flow data. We proposed this change to 
eliminate visual and estimated flow methods which have proven to be 
very inaccurate. Accurate flow measurements must be obtained to 
appropriately evaluate the impacts of the operation on receiving 
streams. We received numerous comments about various aspects of our 
proposed flow measurement changes. One commenter indicated that the 
proposed rule could be interpreted to ban the use of weirs. This is 
incorrect; weirs are not banned. A weir is a calibrated device using a 
pre-defined stage-discharge measurement that can be visually recorded 
by noting the stage of the water flowing through the weir. The 
distinction is that the visual observation of a stage or measurement 
has been calibrated to a stage-discharge curve and produces an accurate 
flow estimate. This method has a scientific basis and provides the 
level of accuracy and precision necessary to derive accurate flows.
---------------------------------------------------------------------------

    \358\ 80 FR 44436, 44498 (Jul. 27, 2015).
---------------------------------------------------------------------------

    One commenter suggested that the proposed rule should be modified 
to continue to allow well-accepted, standardized, flow measurement 
methods. We agree; the final rule does allow-generally accepted 
methods, but does not allow visual flow estimates for the reasons 
discussed above. Another commenter opined that not allowing visual flow 
measurements would create conflict with the requirements of agencies 
that do allow visual flow measurements. Because visual observations are 
not acceptable under the final rule, there should be no conflict. Non-
SMCRA agencies that accept visual flow measurements can continue to do 
so even if our requirements are more rigorous. Another commenter 
suggested we add language pertaining to peer-reviewed citations to 
document the flow measurement method chosen. This is not necessary 
because the regulatory authority can decide the generally-accepted 
measured flow method it prefers and require whatever documentation 
necessary to substantiate the flow measurement method.
    A few commenters remarked that we did not fully consider the 
burdensome costs to industry of implementing the proposed requirements 
in 780.19(c)(3)(i)(A) about measuring and analyzing peak flow. We agree 
with the commenters that the costs of measuring and analyzing peak flow 
magnitude and frequency were not fully considered, but we have 
corrected that omission in the RIA and addressed it in the preamble 
discussion of the Paperwork Reduction Act of 1995, below. However, we 
do not agree with the commenters that the additional costs to obtain 
this data would pose an unrealistic burden and thus should be 
eliminated. The data collected as part of final paragraph (c)(3)(i)(A) 
will help establish a surface water flow baseline that industry and the 
regulatory authority can use to better assess the impacts of mining and 
the effectiveness of reclamation.
    One commenter claimed that the regulations are overbroad in that 
they require upgradient and down gradient baseline sampling points on 
all intermittent and perennial streams even if impacts are not 
probable. The regulations at paragraph (c)(4)(i)(A) require baseline 
characterization on all intermittent and perennial streams on and 
adjacent to the permitted area. This information is not overbroad 
because it is vital to help the applicant and regulatory authority to 
understand the surface water system, provide context and data for the 
probable hydrologic consequence determination, hydrologic reclamation 
plan, and cumulative hydrologic impact assessment analysis, and to 
protect both the operator and regulatory authority in the event of a 
non-mining related impact in the surface water system on or adjacent to 
the permitted area. The commenter also requested that we provide 
greater clarity to the word ``potentially'' in the context of 
monitoring on potentially affected streams. Potentially affected 
streams are all streams capable of receiving mine water from the 
permitted site and streams undermined by an underground mining 
operation. In underground mining operations, the regulation also 
requires sampling all streams within a reasonable angle of de-watering 
as provided in the definition at Sec.  701.5.
    With regard to paragraph (c)(4)(i)(B), a commenter suggested that 
we specify the number of sampling locations that qualify as a 
representative number when sampling ephemeral streams and other 
commenters requested more guidance on who determines the 
``representative sample of ephemeral streams.'' We decline to prescribe 
the number of representative samples that adequately characterize 
ephemeral streams, hydrology, and biology and instead rely on the 
applicant and regulatory authority to decide the density of sampling on 
ephemeral streams. It is within the regulatory authority's discretion 
to determine what constitutes a representative sample of ephemeral 
streams in order to ensure the permit application contains ``sufficient 
detail'' about the hydrology, geology, and aquatic biology as required 
by paragraph (a). We also decline a request from a commenter to 
prescribe what ``sufficient detail'' means in this context. The 
regulatory authority is in the best position to determine whether a 
permit application contains sufficient detail about hydrology, geology, 
and aquatic biology for it to process the application.
    Another commenter suggested ephemeral stream sampling for twelve 
consecutive months was not possible because ephemeral streams only flow 
in response to precipitation events. We agree with the comment and have 
added language in several places to clearly indicate a zero flow event 
is a valid flow observation. The commenter also recommended daily 
measurements of intermittent and perennial streams in the proposed and 
adjacent areas to separate seasonal and event-generated variations. We 
are declining to require daily flow measurements but sufficient 
discretion exists within the rule for regulatory authorities to require 
daily flow measurements when they deem it necessary to characterize 
baseline conditions.
    Several commenters favored the increased monitoring requirements 
and went further to suggest that twenty-four months of data should be 
collected, analyzed, and submitted for permit application review. We 
decline to require twenty-four months of data because of the 
statistical validity offered by twelve months of evenly spaced data, as 
discussed above. However, the regulatory authority does have the 
latitude to require as much additional baseline data as necessary to 
adequately characterize baseline.
    A commenter opined that the requirements outlined in proposed

[[Page 93164]]

paragraph (c)(4) amounted to a snapshot in time and were inadequate to 
determine the baseline flow conditions. As we understand the comment, 
the commenter suggests that obtaining peak flow measurements up and 
down gradient of the proposed operation on all intermittent and 
perennial streams is insufficient to characterize seasonal variation. 
We disagree with the assertion. The minimum requirements prescribed by 
the regulation provide an adequate baseline characterization. Further, 
the combination of the locations identified in final paragraphs (c)(4), 
quantitative measurements found in (c)(3), minimum parameter list at 
(a)(2), and monthly frequency at (c)(4) will provide adequate baseline 
characterization. These regulations are minimum sampling requirements; 
the regulatory agency may require more locations, samples, and 
increased frequency as necessary.
    We received many comments about the requirement in paragraph (c)(5) 
for self-recording devices to measure precipitation. Most commenters 
alleged the devices were prone to maintenance problems, that they were 
not practical on large mine sites, and/or that adequate measurements 
could be obtained from other sources. The final rule still requires 
these devices because variations in precipitation can occur over 
relatively small areas. For example at large mine sites, the operator 
might need more than one recording device to ensure that precipitation 
events are recorded adequately at the mine site. The commenters' 
concern over maintenance is an issue that can be addressed when the 
operator is choosing a self-recording device to measure precipitation. 
There are many types of self-recording devices to measure precipitation 
on the market and not all have the same issues with maintenance. Any 
mechanical device left in the environment is prone to some maintenance 
issues, but operators can minimize these issues by choosing a device 
that best fits their site. Similarly, a commenter asked for 
clarification surrounding use and validity of hydrologic models 
generated by precipitation records. The final rule text at paragraph 
(c)(5)(ii) is clear and provides the regulatory authority with 
discretion to determine if a hydrologic model is necessary, and, if so, 
the regulatory authority can decide the accuracy and validity of the 
model results. Another commenter suggested that the final rule should 
not require a precipitation recording device at each permitted area. 
The commenter suggested that several ``permit areas'' can be in very 
close proximity to one another resulting in redundant data collection. 
We agree and have added paragraph (c)(5)(iii) in the final rule to 
allow close proximity permitted areas to share a precipitation 
recording device. However, it is important to note, as we mention 
above, that because precipitation can vary significantly across 
relatively small areas, the regulatory authority should carefully 
consider exercising this discretion because a precipitation recording 
device located nearby will not always provide accurate data for the 
precipitation event at the mine site.
Final Paragraph (c)(6): Stream Assessments
    We received numerous comments, both supporting and objecting to the 
scope and scale of our proposed stream assessment requirements in 
Sec. Sec.  780.19(c)(6) and 780.19(e), especially as they related to 
the following requirements: Sampling of macroinvertebrate populations 
within all streams; ephemeral stream baseline sampling; and detailed 
descriptions of stream channel and streamside vegetation requirements 
for streams in the adjacent area. Commenters asked how that information 
would be useful in designing the mining and reclamation plan or in the 
context of other SMCRA regulatory program requirements. Some commenters 
recommended requiring data for only a representative sample of all 
streams, rather than for each stream. Further, we received other 
comments on a variety of topics. All of these comments are addressed 
below.
    In the final rule, we have consolidated all stream assessment 
requirements in Sec.  780.19(c)(6) by merging proposed paragraphs 
(c)(6) and (e). Comments relevant to proposed paragraph (e) are 
addressed in this section. In addition to consolidating the paragraphs, 
we have carefully reevaluated each component of the proposed rule 
concerning stream assessments. The final rule retains only those 
components that add value to the permitting process and that have 
utility in the context of SMCRA regulatory programs. However, for the 
most part, we have not adopted the suggestion to require data only for 
a representative sample of streams. Each stream is unique in terms of 
configuration, vegetation, and aquatic life. Therefore, it is important 
to include data specific to each stream in the permit application. The 
following table summarizes how we revised the data requirements from 
the proposed rule to the final rule.

------------------------------------------------------------------------
                                 Required in Proposed  Required in Final
  Stream assessment component        Rule [30 CFR         Rule [30 CFR
                                   780.19(c)(6)&(e)]     780.19(c)(6)]
------------------------------------------------------------------------
Map with identification of each  All perennial,        All perennial,
 stream.                          intermittent, and     intermittent,
                                  ephemeral streams     and ephemeral
                                  within the proposed   streams within
                                  permit and adjacent   the proposed
                                  areas.                permit area.
                                                       All perennial and
                                                        intermittent
                                                        streams within
                                                        the adjacent
                                                        area.
Location of transition points    All perennial,        All perennial,
 from ephemeral to intermittent   intermittent, and     intermittent,
 and from intermittent to         ephemeral streams     and ephemeral
 perennial.                       within the proposed   streams within
                                  permit and adjacent   the proposed
                                  areas.                permit area.
                                                       All perennial and
                                                        intermittent
                                                        streams within
                                                        the adjacent
                                                        area.
Stream pattern, profile, and     All perennial,        All perennial and
 dimensions, with measurements    intermittent, and     intermittent
 of channel slope, sinuosity,     ephemeral streams     streams within
 water depth, alluvial            within proposed       the proposed
 groundwater depth, depth to      permit and adjacent   permit.
 bedrock, bankfull depth,         areas.
 bankfull width, width of the
 flood-prone area, and dominant
 in-stream substrate.
Streamside vegetation            All perennial,        All perennial,
 characteristics.                 intermittent, and     intermittent,
                                  ephemeral streams     and ephemeral
                                  within proposed       streams within
                                  permit and adjacent   the proposed
                                  areas.                permit area.
Identification of stream         All perennial,        All perennial,
 segments on list of impaired     intermittent, and     intermittent,
 surface waters under section     ephemeral streams     and ephemeral
 303(d) of the Clean Water Act.   within the proposed   streams within
                                  permit and adjacent   the proposed
                                  areas.                permit and
                                                        adjacent areas.

[[Page 93165]]

 
Extent and quality of            No..................  All perennial,
 streamside wetlands.                                   intermittent,
                                                        and ephemeral
                                                        streams within
                                                        the proposed
                                                        permit area.
                                                       All perennial and
                                                        intermittent
                                                        streams within
                                                        the adjacent
                                                        area.
Biological condition...........  All perennial and     All perennial
                                  intermittent          streams within
                                  streams within the    the proposed
                                  proposed permit       permit area.
                                  area..
                                 All perennial and     Each perennial
                                  intermittent          stream within
                                  streams within the    the adjacent
                                  adjacent area that    area that could
                                  would receive         be affected by
                                  discharges from the   the proposed
                                  proposed operation..  operation
                                 A representative      All intermittent
                                  sample of ephemeral   streams within
                                  streams within the    the proposed
                                  proposed permit       permit area, if
                                  area.                 a scientifically
                                 A representative       defensible
                                  sample of ephemeral   protocol for
                                  streams within the    assessment of
                                  adjacent area that    intermittent
                                  would receive         streams has been
                                  discharges from the   established. In
                                  proposed operation.   the absence of a
                                                        protocol, a
                                                        description of
                                                        the biology of
                                                        the stream is
                                                        required.
                                                       Each intermittent
                                                        stream within
                                                        the adjacent
                                                        area that could
                                                        be affected by
                                                        the proposed
                                                        operation, if a
                                                        scientifically
                                                        defensible
                                                        protocol for
                                                        assessment of
                                                        intermittent
                                                        streams has been
                                                        established. In
                                                        the absence of a
                                                        protocol, a
                                                        description of
                                                        the biology of
                                                        the stream is
                                                        required.
Location of channel head on      All perennial,        All perennial,
 terminal reaches of stream.      intermittent, and     intermittent,
                                  ephemeral streams     and ephemeral
                                  within the proposed   streams within
                                  permit and adjacent   the proposed
                                  areas..               permit area
                                                       All perennial and
                                                        intermittent
                                                        streams within
                                                        the adjacent
                                                        area.
------------------------------------------------------------------------

    The language contained in the introductory text of proposed 
paragraph (c)(6) has been revised and is included as part of final 
paragraphs (c)(6)(i) and (ii). Final paragraph (c)(6)(i), now requires 
the applicant to map and separately identify all perennial, 
intermittent, and ephemeral stream segments within the proposed permit 
area and all perennial and intermittent stream segments within the 
adjacent area. In the proposed rule, these requirements would have 
extended to ephemeral streams adjacent to the permit area as well, but 
this requirement has been eliminated in the final rule because we have 
determined that the data collected from adjacent ephemeral streams 
would serve no useful purpose within a SMCRA permit as there are no 
performance standards or reclamation requirements pertinent to 
ephemeral streams in adjacent areas. That is not the case for ephemeral 
streams within the proposed permit area because final rule Sec. Sec.  
780.27 and 816.56 establish permitting and reclamation requirements 
that apply when mining in or through an ephemeral stream. For the 
purposes of clarity and continuity, proposed paragraph (c)(6)(iv) has 
been moved to final paragraph (c)(6)(i)(B), and proposed paragraph 
(c)(6)(v) has been moved to final rule (c)(6)(i)(C). In final paragraph 
(c)(6)(i)(C), we have also clarified that any map of streams must be 
consistent with any U.S. Army Corps of Engineers determination of the 
locations of transition points from ephemeral to intermittent and from 
intermittent to perennial streams, and vice versa, when applicable, to 
the extent such a determination exists.
    In final paragraph (c)(6)(ii) we begin to explain the substantive 
stream assessment requirements. This paragraph was located in the 
proposed rule at 780.19(c)(6)(i). Some commenters opposed the proposed 
rule because many of the requirements were inapplicable to ephemeral 
streams. In response, we have divided this portion of the rule into two 
separate categories--perennial and intermittent streams, and ephemeral 
streams. For perennial and intermittent streams, final paragraph 
(c)(6)(ii)(A) requires the same amount of information as in the 
proposed rule; however, because this type of information is not easily 
attainable and would not be useful within these final regulations, we 
have now excluded ephemeral streams from these requirements. Now, in 
final paragraph (c)(6)(ii)(B), we require only a description of the 
general stream-channel configuration of ephemeral streams within the 
proposed permit area.
    In response to comments claiming this portion of the rule was 
confusing when it referred to ``riparian zone'' vegetation, the 
requirements within proposed rule paragraphs (c)(6)(ii) and (vi), now 
final paragraphs (c)(6)(iii) and (iv), have been revised for clarity. 
First, final paragraph (c)(6)(iii) now specifies the types of 
vegetation that we were referring to when we proposed to require a 
description of ``riparian zone vegetation''. Specifically, in the final 
rule, we have changed ``riparian zone vegetation'' to ``vegetation 
growing along the banks of each stream'' and ``percentage of the 
riparian zone that is forested'' to ``[t]he extent to which streamside 
vegetation consists of trees and shrubs''. Second, final paragraph 
(c)(6)(iv) now states that ``[y]ou must identify the parameters 
responsible for the impaired condition and the total maximum daily 
loads associated with those parameters, when applicable.'' This 
language is clearer than the general reference to stressors in the 
proposed rule, as this has been replaced with identification of the 
parameters that cause the impaired condition.
    We have also made a substantive change to final paragraph 
(c)(6)(iii) by adding an additional requirement--a scientific 
calculation of the species diversity of the vegetation. This addition 
was made in response to comments from other federal agencies that 
stated it will assist the regulatory authority in documenting baseline 
conditions with an appropriate level of detail and better ensure 
restoration of any streamside vegetative corridors damaged or destroyed 
by mining in or near streams. We agree and have modified the final rule 
accordingly.
    Many commenters raised concerns about the data we are requiring in 
final paragraphs (c)(6)(ii) and (iii). Some commenters recommended that 
we identify specific methodologies that would be used to gather these 
data required in the final rule within

[[Page 93166]]

Sec.  780.19(c)(6)(ii) and (iii). Other commenters requested that the 
applicant have the option of collecting vegetative information using 
aerial mapping and/or other geographic information system data or 
methodologies. According to these commenters, the methodologies for 
collecting these data should be left to the discretion of the 
regulatory authority due to varying regional and site specific 
conditions and should be determined on a case-by-case basis. We agree 
with other commenters that suggested the on-the-ground locations of the 
data points should be determined as a collaborative effort between the 
regulatory authority and the applicant and that specific methodologies 
should not be identified in this rule. The regulatory authorities are 
in the best position to assess the methodologies, protocols, and 
locations acceptable for the data collection requirements within the 
final paragraphs (c)(6)(ii) and (iii). In some situations, the 
regulatory authority may determine that it is scientifically defensible 
to use aerial mapping and/or other geographic information system data 
when sampling during the correct time of year, for example during full 
leaf-out, to determine the extent to which streamside vegetation 
consists of trees and shrubs and the percentage of channel canopy 
coverage as required in final paragraphs (c)(6)(iii)(B) and (C). 
However, we decline to revise the rule to provide the regulatory 
authority with the discretion to eliminate some of these requirements 
altogether. These requirements are all necessary to attain the 
appropriate level of detail for establishing the baseline condition on 
the site for future monitoring and to assess reclamation success.
    Final paragraph (c)(6)(v) has been modified to include a 
requirement for assessing the extent and quality of streamside 
wetlands. This requirement applies to all perennial, intermittent, and 
ephemeral streams within the proposed permit area and for all perennial 
and intermittent streams within the adjacent area, and it requires the 
identification of the extent of wetlands adjoining streams and a 
description of the quality of those wetlands. We added this paragraph 
in response to comments from other federal agencies that recommended 
additional protections for wetlands in the final rule because wetlands 
have vegetation not normally associated with other types of habitat. 
This change will assist regulatory authorities in documenting baseline 
conditions with an appropriate level of detail in order to better 
ensure restoration of any wetlands damaged or destroyed by mining in or 
near streams. This assessment requirement is consistent with 515(b)(19) 
of SMCRA \359\ which requires establishment of ``a diverse, effective, 
and permanent vegetative cover of the same seasonal variety native to 
the area of land to be affected and capable of self-regeneration and 
plant succession at least equal in extent of cover to the natural 
vegetation of the area.''
---------------------------------------------------------------------------

    \359\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    In the proposed rule, paragraph (e) contained the requirements 
related to the assessment of the biological condition of streams. In 
the final rule, we revised these requirements and moved them to 
paragraphs (c)(6)(vi) and (vii). As finalized, an assessment of the 
biological condition is required for each perennial stream within the 
proposed permit area and within the adjacent area that could be 
affected by the proposed operation. For intermittent streams, the 
biological condition assessment requirements apply to each intermittent 
stream within the proposed permit area and within the adjacent area 
that could be affected by the proposed operation, but only if a 
scientifically defensible bioassessment protocol has been established 
to assess intermittent streams in the state or region in which the 
stream is located. Under the rule finalized today, we have eliminated 
the requirement to assess the biological condition of all ephemeral 
streams and those intermittent streams in states or regions in which 
there are no established scientifically defensible bioassessment 
protocols available; these changes will be discussed in more detail 
below.
    Many commenters opposed the proposed requirements for assessing 
biological condition because of the alleged limited applicability of 
these provisions within semi-arid and arid regions. As support, these 
commenters noted that the preamble to the proposed rule only discusses 
evidence supporting these requirements with examples from West Virginia 
and other areas with 26 or more inches of average precipitation per 
year. In addition, the proposed rule required the use of a 
bioassessment protocol for all stream types, which many commenters 
alleged would have very little value because of a lack of baseline 
studies to use as a reference. They also noted that natural stream 
conditions are highly variable in arid and semi-arid areas both 
aerially and from stream to stream, and this makes it difficult to 
determine a mine's impacts on the biological condition of streams.
    We agree with these commenters in part and, as discussed below, 
have removed provisions requiring the determination of the biological 
condition of all ephemeral streams and those intermittent streams 
without established scientifically defensible bioassessment protocols 
within the state or region where the proposed mining will occur. 
However, we disagree with these commenters in other respects. Arid and 
semi-arid states across the United States have scientifically 
defensible bioassessment protocols for perennial streams and/or 
intermittent streams that have been established by Clean Water Act 
authorities and these protocols consider geographic and annual 
variation of macroinvertebrate populations. In their comments, several 
SMCRA regulatory authorities in the western states provided evidence of 
rigorous protocols for determining the biological condition of 
perennial streams that are already in place.\360\ Also, the U.S. 
Environmental Protection Agency has established a scientifically 
defensible bioassessment protocol and accompanying indices that are 
valid on all perennial streams within the 48 conterminous states,\361\ 
further supporting the requirement of sampling protocols and indices in 
perennial streams.\362\ The ability to obtain information through 
bioassessment protocols is currently available on national, regional, 
and state levels and the ability to establish effective baseline 
information on all perennial streams, no matter the size, habitat type, 
or vegetative cover is attainable using the best technology currently 
available.

[[Page 93167]]

Some commenters recommended that we use biological assessments that 
focus on terrestrial productivity to assess the biological condition of 
streams, such as yield in pounds per acre, percent groundcover, stems 
per acre, tree diameter at breast height, livestock average daily 
gains, and species frequency. We disagree because these assessments do 
not assess the aquatic biota as accurately as the bioassessment 
protocols we are requiring in the final rule and, thus, are not the 
best technology currently available to assess the effects of mining on 
perennial streams.
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    \360\ See Arizona Department of Environmental Quality. 
Implementation Procedures For the Narrative Biocriteria Standard. 
(2015); Colorado Dep't. of Pub. Health and Env't. Water Quality 
Control Div.--Monitoring Unit. Development of Biological Assessment 
Tools for Colorado; M. Tepley, Montana Rivers and Streams 
Assessment. Cramer Fish Sciences, Lacey Office, (2013); Utah Dep't. 
of Envtl. Quality, Div. of Water Quality. 2014. Utah Comprehensive 
Assessment of Stream Ecosystems; E.G. Hargett, The Wyoming Stream 
Integrity Index (WSII)--Multimetric Indices for Assessment of 
Wadeable Streams and Large Rivers in Wyoming. Wyoming Dep't. of 
Envtl. Quality Water Quality Div. document #11-0787, (2011); U.S. 
Envtl. Prot. Agency, Information on Bioassessment and Biocriteria 
Programs from Streams and Wadeable Rivers. https://www.epa.gov/wqc/information-bioassessment-and-biocriteria-programs-streams-and-wadeable-rivers (last accessed Oct. 21, 2016).
    \361\ For the 48 conterminous states, U.S. Envtl. Prot. Agency, 
National Rivers and Streams Assessment: Field Operations Manual. 
EPA-841-B-07-009. Washington, DC (2007).
    \362\ Alaska is scheduled to have these protocols and indices 
established in 2020. Further, ``AKMAP statistical surveys can 
provide baseline information for protection and restoration 
actions.'' See, Alaska Dep't. of Envtl. Conservation. Alaska Clean 
Water Five-Year Strategic Plan Fiscal Years 2016-2020, p. 5 (2015).
---------------------------------------------------------------------------

    One commenter requested we remove all bioassessment protocols 
because streams were already being reclaimed successfully. We disagree. 
There are documented instances of streams adversely affected by mining 
across the United States. In addition, these baseline assessments are 
not solely designed to monitor the reclamation of streams, but also to 
monitor streams that are not approved for disturbance but may be 
impacted by the operation. Across all coal bearing regions, since the 
approval of state run regulatory authorities, examples of surface water 
impacts have been identified.\363\ While many of these effects are 
minor and moderate, they also involve off-site impacts. Other impacts 
are not currently detected, and this rule is designed to improve the 
baseline analysis to further detect the potential for offsite impacts, 
to detect unplanned impacts, and to minimize these off-site impacts 
using the best technology currently available. We are retaining these 
requirements. These baseline assessments of the biological condition of 
streams where scientifically defensible protocols exist will allow for 
appropriate stream assessment and monitoring and will result in 
minimization of effects to fish, wildlife, and environmental resources 
consistent with the requirements of section 515(b)(24) of SMCRA.\364\
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    \363\ Representative sample of SMCRA regulatory authority Notice 
of Violations across the United States.
    \364\ 30 U.S.C. 1265(b)(24).
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    Some commenters also recommended that we eliminate the requirement 
for bioassessments of every perennial stream potentially affected by 
the proposed operation. These commenters suggested we use a 
representative stream sample or solely streams from adjacent areas, 
which they claim would suffice to assess baseline condition and monitor 
reclamation within the proposed permit. We disagree. First, because 
offsite impacts are to be avoided or minimized when they do occur, all 
streams within the influence of the operation need an appropriate level 
of knowledge specific to each stream to be able to comprehensively 
measure these offsite impacts (if they occur). And because these 
offsite impacts may encompass many different types of effects (e.g., 
physical, chemical, biological, human-related) to surface waters off of 
the permitted site at any time or in any location, this level of detail 
using the best technology currently available is warranted. Second, 
small perennial streams that occur within the proposed permitted site 
may differ in physical, chemical, and biotic attributes from those 
adjacent to the proposed permitted site. If perennial streams from 
areas adjacent to the permit are used for this baseline survey, the 
attributes and biological assemblages that contain localized and unique 
species within the permit may be missed.\365\ Assessing only a subset 
of perennial streams within the proposed site may also lose this type 
of biological resolution and is not appropriate when SMCRA requires the 
operation to minimize effects to water quality and quantity as required 
by section 515(b)(10) of SMCRA,\366\ and to fish and wildlife and 
related environmental values as required by 515(b)(24) of SMCRA.\367\ 
In summary, the perennial streams under these requirements may contain 
rare, sensitive, and important habitat and small populations of rare 
and sensitive organisms that are not likely to be comprehensively 
cataloged without thoroughly sampling the potential permitted site. 
Third, it is incumbent that the permittee provide assurance that 
effects of the operation on federal, state, and tribal-listed 
threatened and endangered species have been properly assessed.
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    \365\ Judy L. Meyer, et al., The Contribution of Headwater 
Streams to Biodiversity in River Networks, Journal of the American 
Water Resources Association (JAWRA) 43(1):86-103. DOI: 10.1111/
j.1752-1688.2007.00008 (2007).
    \366\ 30 U.S.C. 1265(b)(10).
    \367\ Id. at 1265(b)(24).
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    Another reason the commenters offered for deleting these mandatory 
bioassessments was that these bioassessment protocols have historically 
been conducted for a different purpose: As part of a suite of metrics 
(i.e., scientifically defensible data) used and not a stand-alone tool 
to characterize the nature of an ecosystem or community. We did not 
alter the rule in response to these comments and are retaining these 
bioassessments as specified in final paragraph (c)(vii). The U.S. 
Environmental Protection Agency first established the policy that 
scientifically defensible biocriteria values may be used independently 
to provide conclusive evidence that water quality standards are or are 
not attained.\368\ But more importantly, as used in this rule, 
bioassessments (using at a minimum, macroinvertebrate sampling) are 
part of a suite of scientifically defensible data that will be used. 
These bioassessments also include physical, chemical, and other 
biological attribute measurements to determine baseline condition and 
to monitor the operation through final bond release. In addition, 
regulatory authorities routinely use bioassessment protocols for 
practical and compliance purposes, including total maximum daily load 
development and monitoring, measuring national pollutant discharge 
elimination system permit compliance, analyzing and establishing best 
practices for restoration, and measuring the progress of stream 
restoration. Similar to our discussion in the preamble to the proposed 
rule, we anticipate that the SMCRA regulatory authority, with 
assistance from the appropriate Clean Water Act agencies, will define 
the range of values required to support each designated use and 
premining use of the stream.\369\ The SMCRA and the Clean Water Act 
authorities have the knowledge and history to provide permit applicants 
with a robust protocol that will define the range of values required to 
support each existing and applicable Clean Water Act water quality 
standards of the stream in question. The final rule simply codifies a 
minimum requirement to incorporate within this protocol a measurement 
of aquatic organisms (benthic macroinvertebrates), a calculated values 
for habitat (including vegetation), and assessments of water quality 
and quantity. The baseline biological, physical, and chemical 
assessments of these streams will also allow the regulatory authority 
to provide guidance to operators on ways to prevent material damage to 
the hydrologic balance outside of the permitted area because these 
baseline measurements can be compared with the measurements needed to 
support each designated use and premining use of the stream in 
question. The comparison between the values, including index values, 
and the baseline measurements is based upon substantial studies and 
scientific support, and it is appropriate to conduct monitoring of

[[Page 93168]]

streams potentially impacted by coal mining activities using these 
protocols.
---------------------------------------------------------------------------

    \368\ T.T. Davies, Memorandum to Water Management Division 
Directors, Transmittal of final policy on biological assessments and 
criteria. U.S. Envtl. Prot. Agency. Washington, DC (June 19, 1991).
    \369\ 80 FR 44436, 44475 (Jul. 27, 2015).
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    One commenter requested that we address whether the biological 
assessments currently employed for Clean Water Act section 404 \370\ 
permitting will suffice. If the assessment includes all of the 
characteristics required in this final rule and its implementing 
regulations, the Clean Water Act section 404 assessment will suffice. 
This commenter was also concerned that these bioassessment requirements 
could result in needless data duplication that may delay permitting 
issuance and potentially conflict with the Clean Water Act and the U.S. 
Army Corps of Engineers requirements. We understand this concern. Final 
Sec.  780.19(h) requires coordination between the SMCRA regulatory 
authority and the Clean Water Act authority. Coordination may include 
baseline data collection points and parameters and the sharing of data 
to the extent practicable and consistent with each agency's mission, 
statutory requirements, and implementing regulations. This will 
minimize delays, data duplication, and conflicting requests.
---------------------------------------------------------------------------

    \370\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    Commenters also voiced concern over the quality control that the 
regulatory authority would use for these bioassessments. These 
commenters indicated that strict quality controls to accurately 
determine the perennial stream condition would be difficult to execute 
and requested that the regulatory authority be provided discretion to 
either modify or eliminate bioassessment protocols. One commenter 
specified that the regulatory authority should be able to use its 
discretion to grant waivers of this requirement to protect the safety 
of the individuals performing the studies. We disagree that quality 
control for these bioassessments would be too difficult to execute. We 
also decline to make these bioassessments optional. These bioassessment 
protocols, both at the state and federal level are designed to address 
quality control throughout the design, data collection, and analysis 
phases. These protocols were developed specifically to consider the 
safety of those performing the protocols and we anticipate that the 
bioassessments will be conducted consistent with the safety of those 
performing the assessments. If a state protocol is not available that 
includes these quality and safety procedures, the ``National Rivers and 
Streams Assessment 2013/2014 Field Operations Manual for Wadeable 
Streams'' includes quality assurance measures in field and laboratory 
design and operations and statistical analysis techniques to provide 
comprehensive data integrity. This protocol also includes a section 
that describes the recommended training, communications, safety 
considerations, safety equipment and facilities, and safety guidelines 
for field operations. This protocol addresses quality assurance and 
quality control issues and is valid throughout the 48 conterminous 
states; therefore, it may be used to assess and monitor SMCRA-permitted 
operations. Final Sec.  780.19(c)(6)(vii)(E) includes a requirement to 
describe the technical elements of the bioassessment protocol, 
including, but not limited to sampling methods, sampling gear, index 
period, sample processing and analysis, and quality assurance/quality 
control procedures; an appropriate, scientifically defensible 
bioassessment would have this information readily available.
    Commenters also expressed concern with the proposed rule's reliance 
on the information created by the bioassessments. Specifically, they 
noted that the proposed rule did not account for changes in 
biodiversity of a perennial stream or other surface waters caused by 
outside sources during the life of the permit. We disagree. Final Sec.  
780.19(c)(4)(i) requires sampling upgradient and downgradient of the 
proposed permit area in each perennial and intermittent stream within 
the proposed permit and adjacent areas. This sampling array will 
account for potential effects from outside sources. In addition, the 
protocols and indices we are requiring have been established while 
considering natural spatial and annual variation. Determining the 
effects of human activity in streams involves the establishment of 
reference streams and conditions. This process includes the sampling of 
aquatic biota and the habitat (e.g., geography, altitude, vegetation, 
attributes of the physical stream channel and surrounding area, and 
water chemistry) in and adjacent to the stream. These data are 
collected to determine reference and non-reference streams and produce 
consistent results. Once these reference streams and conditions are 
established, index thresholds are then established, and these will be 
used to make assessments and monitor streams. This is also mainly an 
iterative process, where reference streams and conditions are sampled, 
resampled, and reanalyzed, and the index may be refined as time passes 
and more data are collected. These metrics are also ecologically 
relevant to the biological assemblage or community under study and are 
sensitive to stressors beyond the permitted site, and provide a 
response that can be discriminated from natural variation. Again, each 
permit can rely on the National Rivers and Streams Assessment for 
streams to provide the minimum requirements found in this final rule 
because this assessment is scientifically defensible in the 48 
conterminous states.
    Several commenters opposed our use of bioassessment indices as one 
way to describe ecological function. They noted that well-respected 
aquatic ecologists, including one ecologist we have cited and relied 
upon within the proposed rule, have not been able to agree on metrics 
of ecological function in stream networks, let alone on the ability to 
restore them. As one example, commenters referred to the Maryland 
Stream Restoration Association, and these commenters asserted that this 
association has not yet agreed on such metrics for streams in the 
Appalachian counties of Maryland. We attempted to corroborate the 
commenters' assertion, but we could not find a source for this 
disagreement on the metrics for the Appalachian counties of Maryland. 
We did, however, discover that the official Web site of the Maryland 
Stream Restoration Association includes at least one reference to a 
protocol for adequate stream restoration within the Chesapeake Bay 
watershed, which includes many references and examples of using 
biological indices to measure ecological function on restoration 
projects.\371\ Additionally, the Maryland Department of Natural 
Resources uses bioassessment protocols (with identification to the 
genus level for regulatory actions) for restoration targeting and 
measuring restoration progress for Maryland's wadeable streams.\372\ 
These Maryland Department of Natural Resources references further 
support our requirement for use of scientifically defensible 
bioassessments because they demonstrate that adequate protocols can be, 
and have been, developed for the measurement of ecological function. 
Ecological function is more thoroughly addressed in our preamble 
discussion of our definition of that term in Sec.  701.5 above.
---------------------------------------------------------------------------

    \371\ Joe Berg, et al., Recommendations of the Expert Panel to 
Define Removal Rates for Individual Stream Restoration Projects: 
FINAL REPORT, Urban Stormwater Work Group Chesapeake Bay Partnership 
(2012).
    \372\ Maryland Biological Assessment Methodology for Non-Tidal 
Wadeable Streams, Last Revised on June 4, 2014.
---------------------------------------------------------------------------

    Several commenters stated that there are other scientifically 
defensible bioassessment protocols that could be

[[Page 93169]]

used to assess and monitor the biological condition of streams and 
recommended that we allow other bioassessment protocols and the 
multimetric bioassessments that were in the proposed rule. We agree 
with this recommendation. Further, we recognize that many states are 
not currently using multimetric macroinvertebrate sampling that use an 
index of biological integrity. Therefore, we have revised the final 
rule in response to these comments to allow for the use of other 
scientifically defensible bioassessment protocols as long as specific 
minimum requirements are satisfied. In paragraphs (c)(vii)(A) through 
(D) of the final rule we clarify the minimum requirements for 
scientifically defensible bioassessment protocols. This includes a 
measurement that is based upon an appropriate array of aquatic 
organisms, that at a minimum includes benthic macroinvertebrates, 
identified to the genus level where possible, otherwise to the lowest 
practical taxonomic level. We retain the minimum requirements to sample 
benthic macroinvertebrates as they are particularly useful for 
assessing the biological condition of the stream because they are 
diverse, abundant, sensitive to environmental stress, relatively 
immobile (compared to fish), and many macroinvertebrates have 
relatively long life cycles of at least a year. These characteristics 
of macroinvertebrates integrate the effects of environmental stressors 
over time and therefore are good indicators of local conditions as well 
as upstream land and water resource conditions. We do not require fish 
sampling and other organism samplings (such as periphyton) in our final 
rule; however, regulatory authorities have the discretion to require 
other sampling protocols. Additionally, the protocol must result in the 
calculation of index values for both stream habitat and aquatic biota 
based on the reference condition. We included the terms ``stream'' 
before habitat and ``aquatic biota based on the reference condition'' 
instead of only macroinvertebrates as proposed, as these more 
appropriately describe the requirements due to the inclusion of other 
types of bioassessments other than multimetric indices that use an 
index of biological integrity. We revised final paragraph (c)(vii)(C) 
and added paragraphs (c)(vii)(D) and (E) to provide clarity with 
respect to the appropriate final characteristics of the required 
bioassessment protocols. Final paragraph (c)(vii)(D) requires the 
protocol to include a quantitative assessment of in-stream and riparian 
habitat condition. Final paragraph (c)(vii)(E) requires the operator to 
describe the technical elements of the protocols, including, but not 
limited to; sampling methods, sampling gear, index period, sample 
processing and analysis, and quality assurance/quality control 
procedures. These two requirements are included to provide sufficient 
information to the regulatory authority that the bioassessment to be 
used will be appropriate and scientifically defensible; for 
scientifically defensible bioassessments, this information should be 
readily available. These measures are supported by current science and 
are also in response to comments described above regarding the concern 
over the bioassessment protocols containing the proper quality control 
and safety procedures. A publication by the U.S. Environmental 
Protection Agency in 2013 identified 13 technical elements of 
biological assessment programs and included recommendations on how to 
more precisely define aquatic life uses and approaches for deriving 
biological criteria, monitoring biological condition, supporting causal 
analysis, and developing-stressor response relationships.\373\ This 
publication serves as resource to determine the scientific rigor of 
potential bioassessment protocols to be used.\374\
---------------------------------------------------------------------------

    \373\ U.S. Envtl. Prot. Agency, Biological Assessment Program 
Review: Assessing Level of Technical Rigor to Support Water Quality 
Management. Washington, DC, EPA 820-R-13-001 (2012).
    \374\ J.E., Allende, Rigor: The essence of scientific work, 
Elec. Journal of Biotechnology, 7(1), (2004).
---------------------------------------------------------------------------

    Many commenters supported biological condition assessments for all 
streams and other commenters supported only including them for 
intermittent and perennial streams. As a result of comments we received 
and our reanalysis of the proposed rule's biological condition 
requirements, we removed the provisions of proposed paragraph (e) that 
would have assessed the biological condition of all intermittent 
streams and a representative sample of ephemeral streams in those 
states or regions in which there are currently no established 
scientifically defensible bioassessment protocols available. For all 
intermittent and some representative number of ephemeral streams, the 
proposed rule would have required adherence to a multimetric 
bioassessment protocol.\375\ Many commenters correctly noted that it is 
currently impractical to require the assessment of the biological 
condition of ephemeral streams and of those intermittent streams in 
states or regions in which there are no established bioassessment 
protocols available. Generally, the best technology currently available 
in many areas for these types of streams does not include bioassessment 
protocols because application of those protocols would not produce 
reliable, substantive information that the regulatory authority would 
be able to use to assess stream function or to monitor reclamation 
success.
---------------------------------------------------------------------------

    \375\ 33 U.S.C. 1251(a) or 1313(d).
---------------------------------------------------------------------------

    Therefore, we did not include these requirements in the final rule. 
However, these intermittent and ephemeral streams represent a large 
proportion of the stream lengths within watersheds, especially in semi-
arid and arid environments, and need to be assessed with a degree of 
scientific rigor. Current science provides examples of watershed 
management and resource protection only having limited success if non-
perennial streams are excluded from assessments and reclamation 
activities.\376\ One reason for the importance of these streams is that 
their natural, seasonal flow provides significant exports to the 
downstream habitat such as nutrients and processed organic matter.\377\ 
In addition, these small streams and their associated adjacent 
vegetative communities can differ widely in physical, chemical, and 
biotic attributes and provide habitats for a range of species that may 
not be able to persist in perennial stream reaches due to competition, 
predation, invasive species, or abiotic factors.\378\ Permanent 
residents as well as migrants travel through ephemeral and intermittent 
stream channels at particular seasons or life stages, and this movement 
links headwaters with downstream and adjacent terrestrial 
ecosystems.\379\ Therefore, although we are not requiring the use of a 
scientifically defensible bioassessment protocol for these streams if 
one does not currently exist, final paragraphs (c)(6)(ii) and (iii) 
require the assessment of the physical structure of the channel and a 
habitat assessment of the vegetative communities within and adjacent to 
ephemeral streams and those

[[Page 93170]]

intermittent streams in states or regions in which there are no 
scientifically defensible bioassessment protocols. Without established 
scientifically defensible bioassessment protocols, these assessments of 
the physical structure of the channel and an assessment of the 
vegetative communities are part of the best technology currently 
available to describe the streams and provide the regulatory authority 
with significant, useful, and scientifically defensible information to 
determine how to minimize the operations' effects to fish, wildlife, 
and related environmental resources consistent with section 515(b)(24) 
of SMCRA.\380\ These requirements are consistent with proposed 
paragraphs (i) and (ii) and are discussed in further detail above.
---------------------------------------------------------------------------

    \376\ Catherine Leigh, et al., Ecological research and 
management of intermittent rivers: an historical review and future 
directions. Freshwater Biology (2015).
    \377\ Raphael D. Mazor, et al. Integrating intermittent streams 
into watershed assessments: Applicability of an index of biotic 
integrity. Freshwater Science, pgs. 459-474 (2011).
    \378\ Emily S. Bernhardt and Margaret Palmer. The environmental 
costs of mountaintop mining valley fill operations for aquatic 
ecosystems of the Central Appalachians. Annals of the New York 
Academy of Sciences, 1223.1: 39-57 (2011).
    \379\ Judy L. Meyer, et al. The Contribution of Headwater 
Streams to Biodiversity in River Networks. Journal of the American 
Water Resources Association (JAWRA) 43(1):86-103. DOI: 10.1111/
j.1752-1688.2007.00008.x (2007).
    \380\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    In addition to the requirements of final paragraphs (c)(6)(ii) and 
(ii), final paragraph (c)(6)(viii) requires, at the time of 
application, a description of the results of a one-time sampling of the 
aquatic biota of each intermittent stream segment in states or regions 
in which there are no established bioassessment protocols available. 
Final paragraph (viii) requires that these one-time sampling events use 
a sampling method or protocol established or endorsed by an agency 
responsible for implementing the Clean Water Act, 33 U.S.C. 1251 et 
seq.\381\ Although indices for the bioassessment of intermittent 
streams are not currently widely available, effective and 
scientifically defensible protocols exist nationwide (the best current 
technology also includes the proper Quality Assurance and Quality 
Control) to sample intermittent streams for the identification and 
cataloging of the biota found within streams. The best technology 
currently available for this one time sampling event are frequently the 
protocols for the bioassessments described above for perennial and some 
intermittent streams, but without the further scientific analysis and 
determination of index values. These one-time sampling events must also 
possess the same quality control and safety considerations as the 
scientifically defensible bioassessment protocols. As an example, the 
``National Rivers and Streams Assessment 2013-2014 Field Operations 
Manual for Wadeable Streams'' published by the U.S. Environmental 
Protection Agency serves as a reliable national resource for sampling 
streams, including intermittent streams. Of critical importance to the 
sampling of intermittent streams is the correct timing of sampling. The 
protocol in the National Rivers and Streams Assessment 2013-2014 Field 
Operations Manual for Wadeable Streams requires greater than 50 percent 
water throughout the channel reach to execute sampling. The manual also 
advises against sampling when precipitation results in streamflow above 
baseflow. The appropriate time to sample intermittent streams is 
normally narrower than appropriate sampling of perennial streams, 
simply because of the amount of time when proper water flow exists. 
When conducted during the correct time of year, this one-time sample 
will provide the regulatory authority with a description of the biota 
within these intermittent streams and provide significant and useful 
information to determine how best to minimize the adverse impacts of 
the operation on fish, wildlife, and related environmental resources 
consistent with section 515(b)(24) of SMCRA.\382\ These assessments 
will also help the regulatory authority determine if any species of 
special concern are present within these stream reaches. These 
assessments are not intended to be used for analyses other than to 
identify those species that are found within these streams and to aid 
in identification of the types of communities present (e.g., coldwater 
stream community).
---------------------------------------------------------------------------

    \381\ For example, the U.S. Envtl. Prot. Agency has a sampling 
protocol applicable across the nation. National Rivers and Streams 
Assessment: Field Operations Manual. (2007) EPA-841-B-07-009. U.S. 
Envtl. Prot. Agency, Washington, DC. This is just one example, more 
regional specific protocols may exist.
    \382\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Other commenters requested we include an addition to the rule that 
requires a strict adherence to the approved bioassessment protocol 
(e.g., sampling gear, sample index period, sample anniversary dates, 
and sample processing methods). This commenter also voiced a concern 
that sample periods for small perennial streams (those most likely to 
be directly affected by mining activities) are shorter than those for 
larger perennial streams. According to the commenter, we should 
prescribe sampling times that avoid early season and late-summer index 
periods because these streams are typically hydrologically stressed and 
they tend to score poorly (e.g., reduced species diversity and 
richness) in many indices during these times. We decline to adopt this 
recommendation because the protocols, requirements, and updates 
incorporated into the final rule discussed above address this concern. 
For example, the U.S. EPA National Rivers and Streams Assessment 2013-
2014: Field Operations Manual (Wadeable Streams) prohibits sampling of 
sites with water in less than 50% of the reach length. It also 
specifies that all sites must be sampled during base flow conditions. 
In addition, the coordination with the appropriate Clean Water Act 
authorities will help establish the appropriate sampling dates for the 
streams in question.
    We received support for the identification of macroinvertebrates to 
the genus level within proposed paragraph (e)(2)(i), now included 
within final paragraphs (c)(6)(vii)(A) and (c)(6)(viii)(B), along with 
an assessment of every stream segment potentially affected by the 
permit. However, one commenter wanted us to specifically mention the 
limitations of these methods for assessing impacts to species sensitive 
to water-quality degradation, including federally-listed threatened and 
endangered species. Several supporters of the proposed rule also 
requested we require more sampling. For example, commenters suggested 
sampling fish to the species level, bird surveys, and hyporheic zone 
assessments in addition to macroinvertebrate data collection. Final 
paragraph (c)(6) sets out the minimum sampling requirements. We decline 
to add other requirements. The regulatory authority always has the 
discretion to require additional measures as appropriate to their 
region or to the particular permit under consideration.
    Other commenters opposed the requirement in final paragraph 
(c)(viii)(A) to identify macroinvertebrates to the genus level. These 
commenters alleged that such a requirement is unnecessary, too 
expensive, and family level identification is preferred and already 
performing adequately. We disagree. While genus-level identifications 
are more expensive to process than family-level identifications, they 
are also the best technology currently available and allow for 
increased specificity, or degree of detail, of the biology that exists 
in streams. Further, most scientifically defensible protocols now 
require genus-level identification in their bioassessments when 
possible. Also, many studies show that genus-level identification 
provides both a greater degree of confidence on the condition of 
streams and a certain degree of knowledge about what types of stressors 
are affecting streams if they are undergoing stress. In the vast 
majority of situations, these genus-level identification tools, when 
compared to family level identification tools, detect smaller 
differences in water quality and are therefore preferred, not only for 
assessment purposes but for monitoring

[[Page 93171]]

purposes.\383\ We also recognize that there may be instances where it 
is not possible to identify to genus and an identification is needed 
due to a small sample size or other limiting factors, such as 
situations when an identification is needed and only a partial body is 
available for identification, the specimen is not the correct sex, or 
not within the appropriate life stage to identify to genus level. 
Therefore, final paragraph (c)(6)(viii)(B) now states that the 
applicant must identify benthic macroinvertebrates to the genus level 
where possible, otherwise to the lowest practical taxonomic level. This 
provision also allows for higher-level identifications where 
classifications of taxa such as flatworms, water mites, and 
oligochaetes are not practicable. In most instances, identification to 
the genus level is appropriate for samples in all life stages.
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    \383\ D.R. Lenat and V.H. Resh, Taxonomy and stream ecology--the 
benefits of genus-and species-level identifications. Journal of the 
North American Benthological Society, 20(2), pp. 287-298 (2011).
---------------------------------------------------------------------------

    One commenter opposed our use of extrapolated measurements within 
the bioassessment protocols. This commenter opposed these by stating 
that in other sections of the proposed rule we will no longer allow 
extrapolated data because our past experience indicates that 
extrapolation is not a reliably accurate method to document and 
describe seasonal variation in chemical parameters; therefore this rule 
should be consistent and not use an extrapolated biological index value 
based on arbitrarily developed correlation methods to establish a 
standard for reclamation success. We disagree. We have experienced 
inaccuracies and other problems with the extrapolation of seasonal 
variation in chemical parameters while gathering baseline data and it 
is an established problem, while the extrapolation of biological 
condition data is a standard that has been produced and replicated 
within scientifically defensible bioassessment protocols.
    A regulatory authority commenter indicated that the requirement in 
proposed paragraph (e)(2), now final paragraph (c)(6)(vii), to use a 
bioassessment method that is approved by the state Clean Water Act 
regulatory authority appears to be in direct conflict with the state's 
water quality laws and standards. The commenter opined that this 
requirement places an additional burden on the state regulatory 
authority to review, approve, and validate bioassessment protocols when 
a state may not have or use numerical bioassessment methods. We 
disagree. This requirement harmonizes a state's Clean Water Act 
bioassessment methods and the SMCRA requirements found in paragraph 
(c). Moreover, final paragraph (c)(6)(vii) requires applicants to use 
either a method approved by the state Clean Water Act authority or 
``other scientifically-defensible bioassessment protocols accepted by 
agencies responsible for implementing the Clean Water Act, 33 U.S.C. 
1251 et seq., modified as necessary to meet the following 
requirements''. Thus, a SMCRA regulatory authority in a state without 
existing bioassessment methods approved by a state or tribal Clean 
Water Act authority must either develop a method acceptable to the 
Clean Water Act authority or use another scientifically defensible 
bioassessment protocol accepted by agencies responsible for 
implementing the Clean Water Act, such as the U.S. Environmental 
Protection Agency's National River and Streams Assessment for Wadeable 
Streams.
    The commenter also maintained that the use of bioassessments and 
correlation index values are not reasonable for isolated locations in 
streams that have highly variable flow conditions. In response, we note 
that requirement for biological condition data in paragraph (c)(6) only 
applies to (1) all perennial streams and (2) any intermittent streams 
in a state or region with a scientifically defensible bioassessment 
method. If no bioassessment methods exist for intermittent streams, 
then the requirements to obtain biological condition data included in 
paragraph (c)(6) applies only to perennial streams on the permitted and 
adjacent area. We are also not aware of any type of situation the 
commenter describes in which hydrologic conditions are limited to such 
a small area and to such few streams that development of biological and 
correlation index values is precluded.\384\ Hydrologic data may have 
widely variable temporal and spatial characteristics, but it typically 
forms patterns that cover areas large enough to enable development of 
scientifically defensible bioassessment protocols.
---------------------------------------------------------------------------

    \384\ Again, we reference the U.S. Entl. Prot. Agency's National 
Rivers and Stream Assessment as a scientifically defensible 
bioassessment for all perennial streams within the forty-eight 
conterminous states.
---------------------------------------------------------------------------

    We sought comments within the proposed rule at 780.19(e) on the 
effectiveness of using index scores from bioassessment protocols to 
ascertain impacts on existing, reasonably foreseeable, or designated 
uses. Many commenters supported their use while many claimed they were 
not effective. We also invited commenters to suggest other approaches 
that may be equally or more effective. We received several suggestions, 
including: Solely qualitative measures; yield in pounds per acre, 
percent groundcover, stems per acre, diameter at breast height, 
livestock average daily gains, and species frequency; a standard that 
simply says that there is no material damage to the hydrologic balance 
outside the permit area if there is no change in designated use of the 
receiving stream as described by the Clean Water Act regulatory 
authority attributable to surface coal mining; Water Quality Standards 
and Physical Habitat scoring are both more dependable measures with 
replicable results that are not subject to as many variables both in 
the environment and sample methodology; standardized qualitative 
assessments for intermittent streams; premining and postmining 
qualitative biological and habitat assessments made at the appropriate 
time to determine if and where macroinvertebrates, fish, or amphibians 
are present in intermittent streams. Although we appreciate the 
suggestions, these alternatives do not adequately assess the biological 
functions of streams as accurately as bioassessment protocols described 
in the final rule and are not the best technology currently available.
Final Paragraph (d): Additional Information for Discharges From 
Previous Coal Mining Operations
    A commenter from a regulatory agency suggested that we define the 
term ``discharge.'' We agree that this term could be clarified and have 
included the modifier ``point-source'' before discharge in the final 
rule. In this section, we also removed the requirement to obtain 
biological condition information because it was redundant with Sec.  
780.19(c)(6), which requires essentially the same information.
    Several commenters suggested that a single, low-flow sample 
representing baseline for each mine discharge located over and adjacent 
to a mine site does not make sense in light of the requirement for 
twelve evenly-spaced monthly baseline samples in paragraphs (b) and (c) 
to characterize groundwater and surface water baseline conditions. Some 
commenters suggested that no sample was necessary for the discharges 
from previous operations due to the volume of sampling required for 
surface water and groundwater characterization. We understand the 
seeming contradiction in sampling frequency

[[Page 93172]]

between surface water and groundwater and mine discharges, but these 
regulations are an adequate basis to establish the minimum regulatory 
authority standards. The low flow period is the most critical period to 
understand mine discharges because it is at that period when the 
concentrations of water quality parameters are the highest in both the 
discharge and receiving streams. Thus, a sample collected during this 
time is most likely to reveal potential issues as compared to samples 
taken during higher flows when concentrations are diluted. Of course, 
state regulatory authorities have the discretion to require whatever 
sampling frequencies for discharges that they consider necessary to 
make technical assessments and associated findings for permits within 
their jurisdiction. For the reasons identified above, we are not 
revising the sampling requirements for mine discharges.
    One commenter suggested that the language pertaining to the 
required sampling for previous mine operations was imprecise and 
further questioned whether abandoned and permitted discharges were 
required to be sampled. The final rule language requires sampling of 
all discharges from abandoned mine sites found on and adjacent to a 
proposed mining operation that might have a hydrologic connection to 
the operation. This requirement provides information that both the 
regulatory authority and applicant will need to assess whether any 
adverse impacts from the discharges within and adjacent to the 
permitted area are a result of the current mining operation. Without 
this information, the operator and regulatory authority are less likely 
to detect any changes in water quality and/or flow from these previous 
mine discharges which may be linked to the proposed operation. For all 
of these reasons, we decline to change the final rule language 
regarding data requirements for pre-existing mine discharges.
    A commenter opined that the extra monitoring and parameters 
proposed in Sec. Sec.  780.19(d) and 784.19(d) are a disincentive for 
remining. We understand the concern with respect to remining. However, 
adequate baseline characterization is more important in remining 
situations, especially with pre-existing discharges. Section 
780.28(e)(3)(i)(D) requires that, when mining through a degraded 
stream, the mining ``[w]ill not further degrade the form, hydrological 
function, biological condition, or ecological function of the existing 
stream.'' Thus, adequate baseline characterization is vital for 
determining if a remining operation is further degrading the form, 
hydrological function, biological condition, or ecological function of 
an existing stream segment.
Final Paragraph (e): Geologic Information
    Some commenters suggested that the requirement at proposed 
paragraph (f)(3)(iii), now paragraph (e)(3), to obtain pyritic sulfur 
and alkalinity information should only apply to regions where it is 
necessary to acquire such data to prevent acid mine drainage. Under 
paragraph (e)(5), the regulatory authority has the discretion to waive 
the pyritic sulfur and alkalinity data if information exists to support 
the regulatory authority's written finding. We note, however, that we 
are unclear how not collecting the alkalinity and pyritic sulfur is 
beneficial in any manner. The applicant must conduct an analysis of the 
geochemical nature of the strata to be removed and assess the net 
neutralization potential of the entire overburden column. To do so, 
every stratum needs to be tested, its net neutralization potential 
calculated, and an analysis made of the overall net neutralization of 
all the overburden on the site. Only in cases where the strata can be 
shown through existing information to historically produce net alkaline 
effluent would it make sense to waive this requirement.
    Another commenter requested that we define ``other parameters that 
may influence the required reclamation.'' In response, we note that 
such factors may include the weather regime, availability of water, 
placement of overburden containing sulfur, and vegetation requirements 
because these factors can significantly affect effluent water quality 
from the reclaimed site.
Final Paragraph (f): Cumulative Impact Area Information
    We received a couple of comments about proposed paragraph (g),\385\ 
now paragraph (f), which addresses cumulative impact area information. 
One commenter claimed that the paragraph requires the characterization 
of ``all'' perennial, intermittent, and ephemeral streams, implying 
there are no limits to what has to be considered when making a 
determination of the cumulative impacts of the proposed operation on 
the surface water and groundwater. The commenter asserted that we 
should use the term ``representative sampling'' and let the regulatory 
authority use their professional judgment on what is appropriate. This 
is a mischaracterization of the proposed rule text; there is no 
language in the paragraph that requires or implies ``all'' streams must 
be characterized. We require the operator to obtain the information 
necessary to assess the impacts of both the proposed operation and all 
anticipated mining on surface-water and groundwater systems in the 
cumulative impact area. Further, nothing in Sec.  780.21 of the 
proposed or final rule, which sets the requirements for the preparation 
and review of the cumulative hydrologic impact assessment, requires or 
implies that ``all'' streams must be characterized to determine the 
cumulative hydrologic impacts. Therefore, the commenter's concerns are 
misplaced, and we have made no changes to the final rule based on this 
comment.
---------------------------------------------------------------------------

    \385\ 80 FR 44436, 44602-44603 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Another commenter pointed out that proposed paragraph (g), now 
final paragraph (f), requires the regulatory authority to obtain all 
hydrologic, geologic, and biologic information necessary to perform the 
cumulative hydrologic impact assessment. They opined that it places an 
extraordinary huge burden on the regulatory authority to obtain all 
this data and this rule appears to require the regulatory authority to 
research proposed cumulative hydrologic impact assessments, when the 
traditional role of the regulatory authority has been to evaluate and 
review permit applications that contain the information. We agree with 
the commenter. We mistakenly stated in the proposed rule that the 
regulatory authority was responsible for obtaining this information. 
The preamble to the previous final rule contains a lengthy discussion 
on this topic, which makes it clear that the applicant is responsible 
for collecting this information. See 48 FR 43970 (Sept. 26, 1983). In 
the final rule, we have corrected this error and changed ``[t]he 
regulatory authority must obtain . . .'' to ``[y]ou must obtain . . .''
    We have also made other changes that clarify our intent and the 
role of the applicant and the regulatory authority. First, in paragraph 
(f)(1), of the final rule, to better conform to the subject of this 
paragraph, we changed the rule text from ``probable cumulative 
hydrologic impacts of the proposed operation . . .'' to ``impacts of 
both the proposed operation . . .'' Second, in paragraph (f)(2), we 
replaced the word ``must'' with ``may'' in the first sentence. This 
change better conforms to the sentence that followed. Third, we 
modified text within paragraph (f)(3) that clarifies the role of the 
regulatory authority and

[[Page 93173]]

complements the changes made in paragraph (f)(1).
Final Paragraph (g): Exception for Operations That Avoid Streams
    This section establishes an exception for operations that avoid 
streams and specifies that the regulatory authority may waive the 
biological condition information requirements of paragraph (c)(6)(vi) 
through (viii) of this section if it is demonstrated, and if the 
regulatory authority finds in writing, that the operation will not: 
Mine through or bury a perennial or intermittent stream; create a 
point-source discharge to any perennial, intermittent, or ephemeral 
stream; or modify the base flow of any perennial or intermittent 
stream. Several commenters supported this proposed section. Other 
commenters requested that we remove the reference to ephemeral streams 
in Sec.  780.19(h)(2), now Sec.  780.19(g)(2). We disagree. Changes to 
the hydrology in ephemeral streams are linked to intermittent and 
perennial streams and must be considered when approving a potential 
exception for collecting baseline condition information.
    Another commenter suggested that we include non-point source 
discharges within this paragraph because there are instances where 
these types of discharges can impact surface waters, potentially 
affecting aquatic environments. We decline to modify the final rule in 
response to this comment because the burden associated with monitoring 
all non-point source discharges into streams may be outweighed by any 
benefit that may be received. Moreover, the surface water monitoring 
requirements, as prescribed by the final rule are adequate to determine 
the quantity and quality of surface water. Other commenters requested 
more guidance on whether stormwater controls and outfalls that 
discharge into ephemeral, intermittent, or perennial streams are 
considered ``point sources'' under this paragraph. Consistent with 
section 502 of the Clean Water Act,\386\ we consider stormwater (not 
including agricultural stormwater) that is discharged by means of any 
discernible, confined and discrete conveyance, including but not 
limited to any pipe, ditch, channel, tunnel, conduit, well, discrete 
fissure, container, or other floating craft into a stream to be a point 
source discharge.
---------------------------------------------------------------------------

    \386\ 33 U.S.C. 1362.
---------------------------------------------------------------------------

    One commenter correctly noted that proposed paragraph (h), now 
paragraph (g) allows the regulatory authority to grant a waiver from 
the requirement to establish baseline conditions in intermittent and 
perennial streams for biological information. However, this commenter 
indicated that this waiver could conflict with the stream baseline 
requirements in paragraph (c) pertaining to surface water baseline 
sample collection. We disagree. The establishment of baseline flow and 
quality characteristics in paragraph (c) applies to all streams within, 
and adjacent to, the permitted area and cannot be waived. Proposed 
paragraph (h), now final paragraph (g), only allows the regulatory 
authority to waive the biological information required in paragraphs 
(c)(6)(vi) through (viii)--not the water quality and quantity 
information in paragraph (c).
    One commenter suggested that many other non-mining related impacts 
occur in streams that could potentially affect the receiving stream's 
aquatic environment. The commenter suggested removing the exemptions 
proposed in paragraph (h) and instead require biological condition 
baseline data in all circumstances. We disagree with the suggestion to 
remove the three exemption clauses because it saves time and resources 
in situations where it is not likely to yield data to help with 
reclamation, and also non-mining related activities are not regulated 
under SMCRA. The requirements of paragraphs (c)(2) and (3) will provide 
sufficient data to characterize baseline conditions in most situations 
where mining operations avoid all activities within or near streams. If 
the regulatory authority chooses to require biological condition data 
when one of the three conditions is present, the final rule contains 
sufficient discretion for them to do so. For these reasons, we are 
retaining the exemptions within the final rule language.
Final Paragraph (h): Coordination With Clean Water Act Agencies
    We received several comments on proposed paragraph (i), now final 
paragraph (h), and, as a result, we have made a few revisions. First, 
some commenters asserted that requiring coordination with Clean Water 
Act agencies would not necessarily be useful if the Clean Water Act 
authority did not respond to coordination attempts. It is important to 
obtain the input from the Clean Water Act authority when considering 
aquatic impacts from SMCRA sites on adjacent receiving streams; the 
Clean Water Act authority is a valuable source of information and 
should be used in SMCRA permitting decisions. In response to the 
commenter's concerns, however, we added the phrase ``make best efforts 
to'' in the introductory text because the nature of response of the 
Clean Water Act authority is out of the control of the SMCRA regulatory 
authority. Adding ``make best efforts to'' also addresses other 
comments received on what is now final paragraph (h)(2), which provides 
that the regulatory authority make best efforts to ``minimize 
differences in baseline data collection points and parameters.'' These 
commenters also alleged that significant delays in SMCRA permitting 
will result if the regulatory authority must reconcile the baseline 
data collection points and parameters required by this rule with the 
Clean Water Act requirements, which are more complex and include a 
greater number of parameters. We understand the concern, but data 
collection reconciliation is important to alleviate wasted effort and 
to ensure consistency between the Clean Water Act authority and the 
SMCRA permit holders. For example, multiple but non-coordinated 
macroinvertebrate sampling can yield inaccurate results if conducted at 
a similar location and at a frequency that does not allow the site to 
recover sufficiently between sample events. For all of these reasons, 
we decline to completely remove the language requiring coordination.
    One commenter suggested that we place a reasonable time limit on 
the agencies to respond to information needed from other agencies in 
order for the SMCRA regulatory authority to make a permitting decision. 
The commenter suggested that permit applicants would be at the mercy of 
other agencies to get all the information necessary for a permitting 
decision and suggested requiring a reasonable time limit for agency 
responses to information requests. We are not adopting this suggestion 
because we have no authority to place regulatory burdens on other 
agencies exercising other statutory authorities. The intent of this 
provision is to ensure all information is available to the SMCRA 
regulatory authority to make an evaluation, permitting decision, and 
permit findings and associated documents. In addition, the requirement 
to have sufficient information to make permitting decisions and develop 
supporting documentation is not a new requirement.
Final Paragraph (i): Corroboration of Baseline Data
    We received many comments on the requirement in proposed paragraph 
(j), now final paragraph (i), to corroborate a sample of the baseline 
information. Many commenters indicated mandatory sample corroboration 
was not a feasible mechanism to achieve the desired result

[[Page 93174]]

because of the timing and expense; others asked what constituted a 
``sample.'' The intent of sample corroboration is to ensure the quality 
of the data collected and that the data accurately characterizes the 
baseline conditions. We recognize that co-collection of samples or 
other similar means of corroboration is not the only method to 
corroborate samples, and we have added the phrase ``visual observation 
of sample collection'' as an allowable means to corroborate a sample.
    Some commenters inquired as to whether corroboration meant one 
sample or numerous samples. One commenter noted that, under the 
proposed provision, one sample is sufficient to meet the corroboration 
requirements but that such corroboration would have no validity because 
it has a statistical strength of zero. We understand the need for 
statistical certainty in some situations, but the goal of the 
corroboration is to evaluate gross water quality features not to 
achieve statistical certainty. Final paragraph (i), however, leaves the 
regulatory authority with the discretion to determine the number and 
means of sample corroboration, even if it is just one sample. The 
regulatory authority is in the best position to determine the number of 
corroboration samples due to their familiarity with the area, water 
quality, and labs used to general data.
    Similarly, another commenter raised the possibility of safety 
concerns if corroboration were to occur during winter months when sites 
may not be readily or safely accessible. We did not revise paragraph 
(i) in response to this concern because we are not prescribing when the 
corroboration occurs; thus, the regulatory authority has the 
flexibility to approve corroboration at times when sites can be safely 
accessible.
    A commenter, who supported the corroboration requirement, suggested 
that we revise the language to specify that the corroboration occur on 
a random sampling of sites with a large enough sample size to 
statistically represent the data reported to the state regulatory 
authority. For the same reasons discussed in the previous paragraphs, 
we decline to be more specific and prescriptive. The regulatory 
authority is in in the best position to determine corroboration 
protocol and validity for each proposed operation.
    One commenter suggested we consider adopting standard quality 
assurance and quality control sampling procedures, such as those 
required by the U.S. Environmental Protection Agency, that require the 
collection of duplicates at ten percent of stations, analyzing field 
blanks, and duplicate identification of benthic samples. Similarly, 
several regulatory authorities commented that they already have 
sufficient corroboration requirements in their state regulations and 
the requirement should be stricken from the rule. We applaud these 
regulatory authorities for their efforts to ensure an adequate and 
accurate baseline characterization, but we decline to remove this 
requirement and we also decline to adopt standard quality assurance and 
quality control sampling procedures. Not all states are as proactive as 
these states cited by the commenters, and corroboration is an important 
responsibility that should be applicable to all states. As noted above, 
however, we have left the provision in general terms so that each state 
can tailor the corroboration protocol to its unique needs.
    Many commenters opined that requiring the regulatory authority to 
corroborate a sample was a major change from the previous applicant 
self-monitoring requirement and will considerably increase staff time 
and cost to implement. Other commenters suggested that the regulatory 
agency be required to conduct this assessment and should not contract 
with third party entities at the applicant's expense to complete the 
task in lieu of the regulatory authority. The final rule, as modified, 
emphasizes the need for accurate baseline information to be collected 
by the applicant. Final paragraph (i) simply establishes a quality 
assurance and control step in the application review process, subject 
to regulatory authority approval, that should not incur extraneous 
expense to either the regulatory authority or the applicant because of 
the minimal number of samples required.
Section 780.20: How must I prepare the determination of the probable 
hydrologic consequences of my proposed operation (PHC determination)?
    As discussed in the preamble to the proposed rule, we proposed to 
modify Sec.  780.20.\387\ After evaluating the comments we received, we 
are adopting the section as proposed, with the exceptions discussed 
below.
---------------------------------------------------------------------------

    \387\ 80 FR 44436, 44500-44501 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In general, this section relates to the preparation of the probable 
hydrologic consequences determination. One commenter requested that we 
provide a definition of a ``probable hydrologic consequences 
determination'' and provide a method for predicting the probable 
hydrologic consequences. Specifically, the commenter requested a 
defined level of probability; otherwise, the commenter opined that the 
concept of probable hydrologic consequences is ambiguous and the 
applicant has discretion to determine what probable hydrologic 
consequences determination means. We disagree. Section 507(b)(11) of 
SMCRA \388\ and other guidance provided in Sec. Sec.  780.20(a) and 
784.20(a) sufficiently detail what must be considered by the applicant 
when determining the probable hydrologic consequences and the purpose 
and goal in making these determinations. In addition, we have published 
several technical reference documents concerning the development of 
probable hydrologic consequences determinations and cumulative 
hydrologic impact assessments. These documents can be accessed via our 
Web site at http://www.osmre.gov/. As a result, we do not need to set a 
level of probability or to otherwise define ``probable hydrologic 
consequences determination.''
---------------------------------------------------------------------------

    \388\ 30 U.S.C. 1257(b)(11).
---------------------------------------------------------------------------

    Throughout this section we are substituting the term ``biology'' 
for ``biological condition'' for the same reasons we articulate in 
connection with final paragraphs (c)(6)(vi) through (viii) of Sec.  
780.19. In brief, we use the term ``biology'' to encompass the type of 
information needed to establish both the biological condition of 
perennial and intermittent streams, for which established protocols 
exist, and the biology of intermittent streams, for which established 
protocols are not currently in place. This recognizes that not all 
states have scientifically defensible protocols for assessing the 
biological condition of intermittent streams. For the same reasons, we 
have removed the requirement to evaluate, for the probable hydrologic 
consequences determination, the biological condition of ephemeral 
streams within the proposed permit and adjacent areas. For additional 
information on why we have made these type of changes, please refer to 
the preamble discussion in final paragraphs (c)(6)(vi) through (viii) 
of Sec.  780.19, above.
Final Paragraph (a): Content of PHC Determination
    Final paragraph (a), similar to proposed paragraph (a), revises the 
requirements concerning preparation of the determination of the 
probable hydrologic consequences of mining in previous Sec. Sec.  
780.21(f)(1) through (f)(3) by adding a requirement to consider the 
impacts of the proposed operation on

[[Page 93175]]

the biological condition of perennial and intermittent streams located 
within the proposed permit and adjacent areas, rather than only on the 
quantity and quality of surface water and groundwater as in the 
previous rule.
    One commenter made a general statement that numerical standards and 
biological assessments should be included to improve probable 
hydrologic consequences determinations and cumulative hydrologic impact 
assessments. For information concerning the use of numerical standards 
in the final rule, please refer to the preamble discussion in Sec.  
773.15 above. For biological assessments, refer to Sec.  
780.19(c)(6)(ii) through (viii).
    In response to proposed Sec. Sec.  780.20(a) and 784.20(a), one 
commenter suggested that we should not extend the same protections to 
ephemeral streams as we do to intermittent and perennial streams. We 
did not propose to extend the same protections to ephemeral streams 
that we did for intermittent and perennial streams. In response to 
scientific literature supporting the benefits of these headwaters to 
essential biological and ecological functions, the final rule provides 
greater protections to ephemeral streams than do the existing 
regulations as described in Part VII of the preamble to the proposed 
rule.\389\ These enhanced protective measures are consistent with the 
purpose of SMCRA at section 102(f) which requires us 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.'' \390\ While the protections we are now promulgating for 
ephemeral streams will be greater than under the previous rules, they 
will not be the same as those extended to intermittent and perennial 
streams. In particular, because of the difficulty in sampling the 
biological condition of ephemeral streams, we have removed ephemeral 
streams from the requirement under this paragraph to evaluate 
biological condition.
---------------------------------------------------------------------------

    \389\ 80 FR 44436, 44451 (Jul. 27, 2015).
    \390\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    One commenter recommended we split paragraph (a) into two 
subparagraphs--one related to biological consequences and one related 
to hydrologic consequences. The commenter also requested that any 
discussion of biological consequences not be contained within the 
cumulative impact assessment. We are not adopting this suggestion 
because water quality and quantity are linked to biological condition 
and ecological function, and, in order for the regulatory authority to 
have a full description of the probable hydrologic consequences, we 
have determined that biological, hydrological, geologic, and ecological 
information should be addressed within the same assessment.
    Several commenters opined that proposed paragraph (a), requiring 
the probable hydrologic consequences determination to include surface 
water quality impacts from point source discharges, effectively 
replaces the reasonable potential analysis under the Clean Water Act 
and is in violation of section 702 of SMCRA.\391\ Furthermore, the 
commenter suggested the documentation of water quantity is problematic 
due to issues with stream flow modeling. We disagree. The probable 
hydrologic consequences determination has always required that the 
applicant address the anticipated effects of the planned mining 
operation and subsequent reclamation on the quality and quantity of 
surface water and groundwater water resources in the proposed permit 
and adjacent areas including those waterways that would receive 
drainage from the site; therefore, with regards to this requirement, 
paragraph (a) does not require additional analysis from what was 
previously required. We also disagree that this requirement in any way 
supersedes the Clean Water Act. Part IV.I. of this preamble further 
discusses the relationship between SMCRA and Clean Water Act.
---------------------------------------------------------------------------

    \391\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    One commenter objected to the requirement in paragraph (a) for the 
probable hydrologic consequences determination to include specific 
findings on the criteria listed in paragraphs (a)(1) through (a)(5) and 
further stated that SMCRA holds the regulatory authority responsible 
for making such findings relative to the cumulative impact. We 
disagree. Section 507(b)(11) of SMCRA \392\ requires that the permit 
application contain, in a manner satisfactory to the regulatory 
authority, ``a determination of the probable hydrologic consequences of 
the mining and reclamation operations, both on and off the mine site, 
with respect to the hydrologic regime, quantity and quality of water in 
surface and ground water systems including the dissolved and suspended 
solids under seasonal flow conditions and the collection of sufficient 
data for the mine site and surrounding areas so that an assessment can 
be made by the regulatory authority of the probable cumulative impacts 
of all anticipated mining in the area upon the hydrology of the area 
and particularly upon water availability . . .'' Section 510 (b)(3) of 
SMCRA \393\ states that neither a permit nor a revision to an existing 
application can be approved unless, among other things, ``the 
assessment of the probable cumulative impact of all anticipated mining 
in the area on the hydrologic balance specified in section 507(b) has 
been made by the regulatory authority and the proposed operation 
thereof has been designed to prevent material damage to hydrologic 
balance outside permit area . . .''
---------------------------------------------------------------------------

    \392\ 30 U.S.C. 1257(b).
    \393\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter was concerned about proposed paragraph (a)(5)(vi) 
which requires that the probable hydrologic consequences determination 
contain a finding about the impact that any diversion of surface or 
subsurface flows to underground mine workings or any changes in 
watershed size as a result of the postmining surface configuration 
would have on the availability of surface water and groundwater. 
Commenters claimed the requirement was open ended, that evaluations of 
impacts starting at first order streams would be incredibly cumbersome 
and time consuming, and that such diversions should be addressed on a 
regional basis in order to properly assess impacts and costs. We 
disagree. Consideration of this type of data is necessary to produce a 
comprehensive probable hydrologic consequences determination for the 
proposed mining operation, as well as a thorough and inclusive 
cumulative hydrologic impact assessment. For example, diversions of 
surface or subsurface flows to underground mine workings will increase 
the existing volume of water which could exceed the holding capacity of 
the mine voids and result in an unanticipated blowout or discharge of 
the water to the ground surface. Diversions could also impact users of 
surface water or groundwater by diminishing or eliminating the 
availability of the water resources. We agree that it may be prudent in 
some instances to evaluate diversions of flows to underground mine 
workings on a regional basis and that should be considered by the 
regulatory authority while preparing the cumulative hydrologic impact 
assessment. However, it is the responsibility of the applicant to 
ensure that all activities of the proposed operation have been 
considered and evaluated relative to potential impacts. In addition, 
changes in watershed size as a result of the postmining surface 
configuration can

[[Page 93176]]

also affect the volume and availability of water resources resulting in 
either too much, or not enough, available water as compared to 
premining conditions; therefore, it is necessary that all activities 
for a proposed mining operation be considered for their potential 
effect on the quality and quantity of surface and groundwater, 
including the biology of the waterways, for the proposed permit and 
adjacent area.
    In final paragraphs (a) and (a)(5)(vii), we have exempted 
operations that avoid streams from the requirement to assess the impact 
the proposed operation will have on biology of perennial and 
intermittent stream. We are doing this for the same reasons we 
articulate above in the preamble discussion of final rule Sec.  
780.19(g), which allows the regulatory authority to waive the 
biological information requirements of final rule Sec.  
780.19(c)(6)(vi) through (viii), if the applicant demonstrates and the 
regulatory authority finds in writing that the operation will not mine 
through or bury a perennial or intermittent stream, create a point 
source discharge to any perennial, intermittent, or ephemeral stream, 
or modify the base flow of any perennial or intermittent stream. For 
additional information on why we made these types of changes, please 
refer to the preamble discussion above. One commenter questioned 
whether, during preparation of the probable hydrologic consequences 
determination, an operator would always be able to obtain from the 
regulatory authority the criteria needed to determine whether the 
operation may cause material damage to the hydrologic balance outside 
the permit area as required in paragraph (a)(1). We anticipate that the 
applicant will collaborate and coordinate with the regulatory authority 
as necessary to ensure that the criteria for assessing the material 
damage to the hydrologic balance outside the permit area are 
established in time to be available for the probable hydrologic 
consequences determination. We also anticipate that the regulatory 
authority will coordinate with Clean Water Act agencies in preparing 
these criteria.
    We have revised final paragraph (a)(2) to clarify that the 
applicant must evaluate the potential for toxic mine drainage not only 
during active mining and reclamation operations but also after these 
activities have been completed. This provision now specifies that when 
making a finding on whether acid-forming or toxic-forming materials are 
present that could result in contamination of surface water or 
groundwater, the applicant must consider discharges of toxic mine 
drainage that could occur after the completion of land reclamation in 
the evaluation.
    Proposed paragraph (a)(5) required that the applicant determine 
what impact the proposed operation will have on specific water quality 
parameters, including parameters for which baseline information is 
required under Sec.  780.19(a)(2). We required in proposed paragraph 
(a)(5)(ii) the addition of any other water quality parameters in the 
evaluation that were identified to be of local importance.
    One commenter disagreed with this addition because it required the 
regulatory authority to identify the water quality parameters of local 
importance rather than the Clean Water Act authorities, which the 
commenter alleged violates section 702 of SMCRA.\394\ As discussed in 
Part IV, section I of this preamble, we disagree that this requirement 
in any way supersedes the Clean Water Act. Of course, the SMCRA 
regulatory authority should consult with the Clean Water Act regulatory 
authority as needed to identify water quality parameters of local 
importance.
---------------------------------------------------------------------------

    \394\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    We also revised paragraph (a)(5)(ii) in the final rule to clarify 
that the proposed reference to ``water quality'' refers to both 
groundwater and surface water quality. We further revised this 
paragraph to reference the parameters listed Sec.  780.19(a)(2) as 
those which must be addressed in the findings on the impacts of the 
proposed operation on groundwater and surface water. Consequently, we 
have deleted as redundant proposed paragraphs (5)(ii)(A) through (K) 
which listed those parameters.
    Another commenter requested that we revise proposed paragraph 
(a)(5)(ii)(L), now paragraph (a)(5)(ii) in the final rule, to state 
that the regulatory authority would identity parameters of local 
importance. We agree and have made appropriate revisions to that 
paragraph. The regulatory authority is in the best position to identify 
those local parameters of concern, if applicable, and include them in 
the required baseline monitoring data. Therefore, we have revised 
Sec. Sec.  780.19 and 780.23 in the final rule to specify that the 
regulatory authority will be the one that determines parameters to be 
of local importance. We anticipate that, during the development of the 
permit application package, the applicant will take part in this 
process by consulting with the regulatory authority about which, if 
any, additional parameters should be added to the baseline monitoring 
plans.
    One commenter indicated that peak-flow data, as required in 
proposed paragraph (a)(5)(iv), may be insufficient to accurately 
predict trends in ephemeral streams due to the episodic nature of the 
flows. We agree with the commenter and have now exempted ephemeral 
streams from the requirement in Sec. Sec.  780.19(c)(3) and 
780.20(a)(5)(iv) in the final rule. Peak-flow magnitude and frequency 
data will be required for perennial and intermittent streams within the 
proposed permit and adjacent areas.
    Many commenters on proposed Sec.  780.20(a)(5)(vii) reiterated 
various points made in connection with proposed Sec.  780.19(e), now 
Sec.  780.19(c)(6)(ii) through (viii), such as: Support for the 
assessment of the effects the proposed operation will have on the 
biological condition of streams; requests that the regulations be 
revised to clarify that a qualitative evaluation of streams is 
sufficient in certain cases to establish findings on the biological 
condition of streams; and that it is not necessary to complete a new 
and comprehensive assessment of streams for every mine site. Our 
responses to these comments are set out in the preamble to final Sec.  
780.19(c)(6)(ii) through (viii) and are not repeated here.
    In Sec.  780.20(a)(5)(vii), we proposed to require an evaluation of 
the biological condition of the operation in streams both within the 
permit area and in ``adjacent areas.'' Several commenters expressed 
concern that the baseline data collection and permitting process may be 
difficult because the extent of the ``adjacent area'' may not be easy 
to determine and may change as data are collected and analyzed. We 
encourage applicants to coordinate with the regulatory authority in 
determining the size of the adjacent area, i.e., the area from which 
baseline data must be collected. However, should the regulatory 
authority determine that supplemental information, including additional 
information on the adjacent area, is needed to fully evaluate the 
probable hydrologic consequences of the proposed operation you must 
then submit supplemental information, as explained in paragraph (b), 
below.
Final Paragraph (b): Supplemental Information
    As proposed, paragraph (b) was substantively identical to previous 
Sec.  780.21(b)(3), with the exception that we proposed to expand the 
conditions under which the regulatory authority must request additional 
supplemental information related to the probable

[[Page 93177]]

hydrologic consequences determination. We received numerous comments 
stating that the requirement to submit supplemental information is 
redundant with similar data requirements in Sec.  780.19, and is 
onerous and burdensome. Commenters also stated that the supplemental 
information should not be mandatory under these circumstances, given 
the more comprehensive nature of baseline permit application 
information requirements concerning hydrology and geology that will be 
required under the rule and given that the regulatory authority has the 
implied authority to request additional information if and when 
necessary. We agree with these comments and have removed paragraph (b) 
from the final rule.
Final Paragraph (c): Subsequent Reviews of PHC Determinations
    We are adopting paragraph (c)(1), now final paragraph (b)(1), as 
proposed, which is substantively identical to previous Sec.  
780.21(f)(4), which requires that the regulatory authority determine 
whether a new or updated probable hydrologic consequences determination 
is needed as part of the process of evaluating permit revision 
applications. We proposed paragraph (c)(2) to clarify that the 
applicant must prepare a new or updated probable hydrologic 
consequences determination whenever a regulatory authority review finds 
that one is needed. Several commenters objected to the addition of 
proposed paragraph (c)(2). These commenters noted that a new or updated 
probable hydrologic consequences determination would result in 
increased cost and staff time to the applicant. We disagree. The 
requirement in proposed paragraph (c)(1), now final paragraph (b)(1), 
for the regulatory authority to make a determination on whether a new 
or updated probable hydrologic consequences determination is necessary 
for a permit revision is substantively the same as that in previous 
Sec.  780.21(f)(4); it has always been anticipated that the applicant 
would submit a revised or new determination should the regulatory 
authority deem one necessary. Thus, as this is an existing requirement, 
there will not be any additional cost or staff time beyond satisfying 
the requirement of the previous Sec.  780.21(f)(4). This requirement, 
moreover, is consistent with section 510(b)(3) of SMCRA \395\ which 
requires that ``the assessment of the probable cumulative impact of all 
anticipated mining in the area on the hydrologic balance specified in 
section 507(b) has been made by the regulatory authority and the 
proposed operation thereof has been designed to prevent material damage 
to hydrologic balance outside permit area'' prior to approval.\396\ 
Likewise, for permit revision applications, section 510(b)(3) of SMCRA 
requires, ``the assessment of the probable cumulative impact of all 
anticipated mining in the area on the hydrologic balance specified in 
section 507(b) has been made by the regulatory authority and the 
proposed operation thereof has been designed to prevent material damage 
to hydrologic balance outside permit area'' prior to approval.\397\
---------------------------------------------------------------------------

    \395\ 30 U.S.C. 1257(b)(11) and 1260(b)(3).
    \396\ 30 U.S.C. 1260(b)(3).
    \397\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter expressed concern that unless the regulations set 
forth specific criteria to determine when an updated or new probable 
hydrologic consequences determination is needed, an applicant could be 
subjected to denials or endless cycles of probable hydrologic 
consequences determination studies depending on the bias and 
preferences of the regulatory authority. Thus, this commenter and 
others requested that we revise this paragraph to provide objective 
criteria to clarify this provision and ensure consistency. We disagree 
with the commenter's assertion that objective criteria for defining 
when an updated or new probable hydrologic consequences determination 
must be made should be included in this section of the final rule. 
Section 510(b)(3) of SMCRA \398\ is not explicit regarding that 
criteria that will result in the need for a new or updated probable 
hydrologic consequences determination, as these criteria may vary among 
state regulatory programs. Regulatory authorities should have 
discretion in establishing the criteria that will trigger the need for 
an updated probable hydrologic consequences determination based on the 
changes that are proposed in the permit revision application and based 
upon local, regional, and operational conditions. Further, we do not 
agree with the commenter's concern about regulatory abuse. Section 
510(b)(3) of SMCRA \399\ clearly contemplates the regulatory authority 
making the assessment of the probable cumulative impact of all 
anticipated mining in the area. In the event the regulatory authority 
denies the permit, the permittee may exercise its rights pursuant to 
section 514 of SMCRA.\400\
---------------------------------------------------------------------------

    \398\ Id.
    \399\ Id.
    \400\ 30 U.S.C. 1264.
---------------------------------------------------------------------------

Section 780.21: What requirements apply to preparation, use, and review 
of the cumulative hydrologic impact assessment (CHIA)?
    Our previous regulations contained very few standards or criteria 
for preparation of the cumulative hydrologic impact assessment. As we 
stated in the preamble to the proposed rule, the lack of standards or 
content requirements for the cumulative hydrologic impact assessment, 
coupled with the lack of a definition of ``material damage to the 
hydrologic balance outside the permit area,'' created an impediment to 
stream protection under SMCRA because there are no objective criteria 
to apply. Therefore, as discussed in the preamble to the proposed rule, 
we proposed to modify our regulations at Sec.  780.21 to include 
content requirements for the cumulative hydrologic impact assessment, 
procedural requirements, and criteria for determining material damage 
to the hydrologic balance outside the permit area.\401\ We received 
numerous comments on our proposed revisions. After evaluating the 
comments, we are adopting Sec.  780.21 as proposed, with the revisions 
discussed below.
---------------------------------------------------------------------------

    \401\ 80 FR 44436, 44501-44503 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): General Requirements
    Proposed paragraph (a)(2) provided that the regulatory authority 
would consider relevant information on file for other mining operations 
located within the cumulative impact area or in similar watersheds 
during preparation of the cumulative hydrologic impact assessment. One 
state regulatory authority suggested we change ``will consider'' to 
``may consider.'' We reject this comment because the intent of the 
cumulative hydrologic impact assessment is specifically to assess the 
cumulative impacts of all coal mining and reclamation operations in the 
defined cumulative impact area. To properly assess these impacts, the 
regulatory authority must consider other mining operations in the 
defined cumulative area. Thus, we have changed ``will consider'' to 
``must consider'' in order to indicate the necessity of the requirement 
to consider other mining operations and to clarify that this aspect of 
the cumulative hydrologic impact assessment cannot be overlooked during 
the assessment. Further, this modification reflects the plain language 
principles discussed in Part II of this preamble because ``will 
consider'' expresses that the activity may be completed in the future. 
Because the

[[Page 93178]]

information about existing mining operations is available, its 
consideration should occur prior to completion of the cumulative 
hydrologic impact assessment and not at some point in the future.
    Another commenter opined that the analysis conducted in the 
cumulative hydrologic impact assessment should be performed by mine 
operators instead of the SMCRA regulatory authority. This commenter 
asserted that regulatory authorities have historically been negligent 
in conducting thorough cumulative hydrologic impact assessments because 
of limited resources and that material damage findings historically 
often have included little supporting analysis or information. This 
commenter also asserted that the previous regulations do not require 
collection of sufficient data to prepare an adequate cumulative 
hydrologic impact assessment and that mine operators have information 
more readily available than do the regulatory authorities and this 
information should be utilized. Section 507(b)(11) of SMCRA \402\ 
specifically requires an assessment to be performed by the regulatory 
authority of the probable cumulative impacts of all anticipated mining 
in the area upon the hydrology of the area. Further, section 510(b)(3) 
of SMCRA \403\ specifies that no permit application or revision may be 
approved unless the application affirmatively demonstrates and the 
regulatory authority finds in writing that the assessment of the 
probable cumulative impact of all anticipated mining in the area has 
been made and the operation has been designed to prevent material 
damage to the hydrologic balance outside the permit area. This 
assessment cannot be delegated to mine operators as the commenter 
proposes and therefore, we have not changed the final rule in response 
to this comment.
---------------------------------------------------------------------------

    \402\ 30 U.S.C. 1257(b)(11).
    \403\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter recommended that we use consistent terminology 
between the preamble to the proposed rule, which stated that we 
intended to ensure that the regulatory authority considers all 
available information and the proposed rule, which states that the 
regulatory authority ``must consider'' relevant information on file. We 
are not modifying the final rule in response to this comment. Although 
the regulatory authority should consider any information available to 
it for the assessment, paragraph (a)(2) sets a minimum standard for the 
regulatory authority to consider relevant coal mining information on 
file. We recognize that some information associated with other adjacent 
and underlying industries, such as oil and gas, may be proprietary or 
difficult to obtain. For this reason, the regulatory authority should 
consider all available information, but it must consider coal mining 
information that it has on file.
    One regulatory authority commenter indicated that the proposed rule 
did not include a provision for proposed mine sites that may be 
hydrologically isolated. When preparing the cumulative hydrologic 
impact assessment only ``relevant'' information must be considered. In 
this context, hydrologically isolated, proposed mine sites do not have 
``relevant'' information associated with the permit application. 
Therefore, we are not modifying the final rule in response to this 
comment.
    Paragraph (a)(3) of the final rule clarifies that information 
required for preparation of the cumulative hydrologic impact assessment 
must be received and reviewed prior to approval of the permit 
application. The proposed rule only required receipt of the information 
prior to permit application approval. We made this change to ensure 
that the regulatory authority both received and used all the 
information necessary to properly develop the cumulative hydrologic 
impact assessment.
Final Paragraph (b): Contents
    Proposed paragraph (b) established detailed requirements for the 
content of the cumulative hydrologic impact assessment to ensure that 
the assessment is sufficiently comprehensive to support the required 
finding that the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. 
Several commenters supported the content requirements identified in 
proposed paragraph (b), but other commenters opposed elements of those 
requirements.
    One commenter questioned the requirement of paragraph (b)(1)(iv) 
that the designated uses of surface water under section 303(c) of the 
Clean Water Act \404\ be displayed on a map. The commenter reasoned 
that the designated uses that must be specified to meet this 
requirement should include the designated uses prescribed by the state 
in which the operation may occur because many states adopt their own 
designated uses that may differ from federal designations. We agree 
with the commenter that states may change a designated use. However, 
the U.S. Environmental Protection Agency is required to review those 
changes to ensure that revisions in designated uses are consistent with 
the Clean Water Act and that new or revised criteria protect the 
designated uses to ensure compliance with the requirements of section 
303(c) of the Clean Water Act and federal water quality standards. 
Therefore, we are still requiring that the current approved designated 
uses under 303(c) of the Clean Water Act \405\ be displayed on a map 
for the purpose of the cumulative hydrologic impact assessment. 
However, at the suggestion of a federal agency we removed reference to 
section 101(a) of the Clean Water Act,\406\ which is a statement of the 
general goals and policies of the Clean Water Act. Limiting reference 
to section 303(c) of the Clean Water Act is more precise.
---------------------------------------------------------------------------

    \404\ 33 U.S.C. 1251(a) or 33 U.S.C. 1313(c).
    \405\ Id.
    \406\ 33 U.S.C. 1251(a).
---------------------------------------------------------------------------

    As discussed earlier in this preamble, final Sec.  780.19 requires 
the collection of certain baseline hydrologic information. Final 
paragraph (b)(3) of Sec.  780.21 requires that the cumulative 
hydrologic impact assessment contain a description of the baseline 
hydrologic information for the proposed permit and adjacent areas that 
are collected under Sec.  780.19. In response to comments about the 
level of detail required, final paragraph (b)(3) clarifies that the 
description must be both qualitative and quantitative. Both 
quantitative and qualitative information on water quality and quantity 
is needed to describe baseline hydrologic conditions adequately because 
qualitative descriptions often provide needed context for quantitative 
information.
    Proposed paragraph (b)(3)(ii) would have required information about 
existing usage of surface water and groundwater, as well as information 
defining the quality of water required for each existing and reasonably 
foreseeable use of groundwater and surface water and each designated 
use of surface water under section 303(c) of the Clean Water Act.\407\ 
Two commenters indicated that the cumulative hydrologic impact 
assessment findings on reasonably foreseeable designated uses are not 
clearly defined and may result in variable interpretations when 
forecasting potential reasonably foreseeable uses. One commenter 
requested that we make a distinction between protecting designated uses 
and existing uses. Another commenter strongly recommended that the 
final rule clarify that the corrective action for

[[Page 93179]]

designated uses should be tied to the postmining land use and be 
determined by the state Clean Water Act authority, instead of some 
other arbitrarily assigned higher use that was not achievable prior to 
mining. In response to all of these comments, final paragraph 
(b)(3)(ii) includes a requirement for information on the quantity, as 
well as the quality, of water needed to support, maintain, or attain 
water uses. In addition, final paragraph (b)(3)(ii) requires a list of 
water uses for which the information required in paragraph (b)(3) must 
be assessed. Specifically, for surface water, final paragraph 
(b)(3)(ii)(A) requires assessment of the designated uses or, if no 
designated use exists, each premining use. Final paragraph 
(b)(3)(ii)(B) requires assessment of premining uses of groundwater. 
Unlike the proposed rule, the final rule does not require an assessment 
of reasonably foreseeable uses of either surface water or groundwater. 
We did not adopt the proposed requirement for assessment of reasonably 
foreseeable uses because of the subjective nature of that 
determination.
---------------------------------------------------------------------------

    \407\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (b)(3)(iii) would have required the inclusion of 
a description and map of the local and regional groundwater systems as 
part of the cumulative hydrologic impact assessment. One regulatory 
authority sought flexibility regarding the presentation and description 
of the local and regional aquifer system. In response to this comment, 
we slightly modified the requirement to allow a description or map 
rather than requiring submission of both a description and a map in all 
cases. This change provides the regulatory authority with flexibility 
to accept maps, descriptions, or both in order to best explain aquifer 
characteristics, such as hydraulic gradient.
    Proposed paragraph (b)(3)(iv) required baseline information on the 
biological condition of all perennial, intermittent, and ephemeral 
streams. In response to comments, we modified final paragraph 
(b)(3)(iv) to be consistent with the monitoring requirements at final 
Sec.  780.19(c)(6)(vi) through (viii) of this part, which no longer 
require monitoring of the biological condition of ephemeral streams.
    One commenter questioned proposed paragraph (b)(5), which required 
that a quantitative assessment be conducted on how all anticipated 
surface and underground mining may impact the quality of surface water 
and groundwater in the cumulative impact area. According to the 
commenter, this requirement is too vague. The commenter was concerned 
with how these impacts would be expressed in terms of each baseline 
parameter identified under Sec.  780.19. The commenter requested 
guidance on evaluating impacts within the cumulative impact area on a 
parameter-by-parameter basis. We direct the commenter to the definition 
of ``cumulative impact area'' in Sec.  701.5, which establishes the 
scope and intent of the evaluations within the cumulative impact area. 
We decline to delve into an explanation of methods used to predict 
water quality on a parameter-by-parameter basis because it is beyond 
the scope of this document. In general, to arrive at mining-induced 
changes by parameter, most common methods entail some form of 
statistical method, with regression analysis of parameter concentration 
through time being the most common. Additionally, guidance documents 
are available through our National Library at www.osmre.gov/resources/Library.shtm. These documents provide guidance on preparation of the 
determination of the probable hydrologic consequences of the operation 
that the applicant must prepare and the cumulative hydrologic impact 
assessment that the regulatory authority must prepare. We are also 
available for technical assistance in developing the methods necessary 
to support cumulative hydrologic impact assessment findings. In 
summary, both the regulatory authority and the applicant need to 
understand and forecast the impact of the mining and reclamation plan 
on the baseline parameters in final Sec.  780.19 and assess the sum 
total of these impacts on the hydrologic balance within the cumulative 
impact area, as defined at Sec.  701.5 and as required in paragraphs 
(b)(3) through (b)(5) of Sec.  780.21.
    Proposed paragraph (b)(6) required that the cumulative hydrologic 
impact assessment include criteria defining material damage to the 
hydrologic balance outside the permit area on a site-specific basis. 
Proposed paragraph (b)(6)(i) required that these criteria be 
established on a numerical basis for each parameter of concern. 
Numerous commenters argued that there is no authority under SMCRA to 
establish numerical criteria for material damage to the hydrologic 
balance outside the permit area. Commenters also claimed that 
establishment of enforceable water quality criteria under SMCRA that 
differ from water quality standards promulgated under the Clean Water 
Act would violate section 702(a) of SMCRA. Section 702(a) provides, in 
relevant part, that ``[n]othing in this Act shall be construed as 
superseding, amending, modifying, or repealing'' the Clean Water Act 
``or any rule or regulation promulgated thereunder.'' Part IV.I. of 
this preamble discusses the interrelationship between the Clean Water 
Act and SMCRA. Other commenters provided suggestions to refine the 
language of this provision. For instance, one commenter suggested 
replacing the phrase ``numerical terms'' with ``be expressed in 
applicable state or federal water quality standards (or criteria)'' to 
allow the use of both numerical and narrative standards. Another 
commenter supported the use of narrative standards, when applicable, 
compared to numerical standards. One state regulatory authority 
requested that the rule require the use of numerical and narrative 
standards that have defensible numeric threshold criteria.
    After evaluating these and other similar comments, we decided not 
to adopt the proposed requirement that numerical criteria be 
established for each parameter of concern. Instead, final paragraph 
(b)(6) requires that the cumulative hydrologic impact assessment and 
the permit include site-specific numeric or narrative thresholds for 
material damage to the hydrologic balance outside the permit area. The 
regulatory authority has the discretion to determine which parameters 
require material damage thresholds. Material damage thresholds define 
the point at which the operation has failed to prevent material damage 
to the hydrologic balance outside the permit area.
    Final paragraph (b)(6)(i) provides that, when identifying material 
damage thresholds in connection with a particular permit, the 
regulatory authority will, in consultation with the Clean Water Act 
authority, as appropriate, undertake a comprehensive evaluation that 
considers the following factors--
    (1) The baseline data collected under Sec.  780.19;
    (2) The PHC determination prepared under Sec.  780.20;
    (3) Applicable water quality standards under section 303(c) of the 
Clean Water Act;
    (4) Applicable state or tribal water quality standards for surface 
water and groundwater;
    (5) Ambient water quality criteria developed under section 304(a) 
of the Clean Water Act; \408\
---------------------------------------------------------------------------

    \408\ 33 U.S.C. 1314(a).
---------------------------------------------------------------------------

    (6) Biological requirements of any species listed as threatened or 
endangered under the Endangered Species Act of 1973, or their 
designated

[[Page 93180]]

critical habitat, habitat occupied by those species, and areas in which 
those species are present for only a short time but that are important 
to their persistence; and
    (7) Other pertinent information and considerations to identify the 
parameters for which thresholds are necessary.
    The factors listed above and in final paragraphs (b)(6)(i)(A) 
through (G) do not constitute material damage thresholds in and of 
themselves; they are only factors to be considered in determining which 
parameters require material damage thresholds and what those thresholds 
should be.
    Final paragraph (b)(6)(ii) modifies final paragraph (b)(6)(i) 
slightly in that it provides that the regulatory authority, in 
consultation with the Clean Water Act authority, must adopt numeric 
material damage thresholds as appropriate, taking into consideration 
relevant contaminants for which there are water quality criteria under 
the Clean Water Act, 33 U.S.C. 1251 et seq. Final paragraph (b)(6)(ii) 
further provides that the regulatory authority may not adopt a 
narrative threshold for parameters for which numeric water quality 
criteria exist under the Clean Water Act. These provisions reflect 
concerns that were raised during the rule review process. They are 
intended to promote coordination and consistency with Clean Water Act 
regulatory programs.
    One environmental organization recommended that we codify the 
following language from the preamble of the proposed rule: ``SMCRA 
material damage criteria must be no less stringent than Clean Water Act 
water quality standards and criteria in all cases, but, in some 
situations, they may need to be more stringent to protect unique uses 
or to comply with the Endangered Species Act.'' We did not adopt this 
recommendation because there may be situations in which the quoted 
preamble language does not apply.
    An industry commenter expressed concern that we did not provide 
sufficient information or clear specifications for the ``numerical 
terms for each parameter of concern. Final paragraph (b)(6) no longer 
includes the quoted phrase from the proposed rule. Instead, the final 
rule grants the regulatory authority discretion to determine which 
parameters require material damage thresholds and whether those 
thresholds should be narrative or numeric, except as provided in final 
paragraph (b)(6)(ii).
    Proposed paragraph (b)(6)(ii) provided that, in establishing 
material damage criteria, which we now refer to as material damage 
thresholds, the regulatory authority must take into consideration the 
biological requirements of any species listed as threatened or 
endangered under the Endangered Species Act when those species or 
designated critical habitat are present within the cumulative impact 
area. The U.S. Fish and Wildlife Service requested that we revise this 
provision to also apply to both the habitat occupied by those species 
and any areas in which those species are present only for a short time 
but that are important to their persistence, such as migration and 
dispersal corridors. Final paragraph (b)(6)(i)(F) includes the 
recommended language as an evaluation criterion for material damage 
thresholds.
    In the proposed rule,\409\ we invited comment on whether the final 
rule should require that the regulatory authority establish corrective 
action thresholds, which would be lower than material damage thresholds 
to identify the point at which the permittee must take action to 
minimize adverse trends that may continue and ultimately cause material 
damage to the hydrologic balance outside the permit area. We received 
comments both supporting and opposing the development of these 
corrective action thresholds. Several commenters supported the 
establishment of corrective action thresholds because it would provide 
a more objective way to assess the existence or nonexistence of 
material damage to the hydrologic balance outside the permit area. One 
commenter opposed the concept of corrective action thresholds because, 
according to the commenter, establishment of those thresholds would 
conflict with section 702 of the Act. Part IV.I., above, discusses this 
issue. Another commenter opposed corrective action thresholds as being 
duplicative of the requirement to monitor surface water and groundwater 
during mining, which should be sufficient to identify trends that could 
lead to potential problems. In addition, the commenter noted that the 
regulatory authority would also be aware of trends through review of 
the quarterly water monitoring reports required for all operations and 
the annual reports required by some state programs.
---------------------------------------------------------------------------

    \409\ 80 FR 44436, 44502 (Jul. 27, 2015).
---------------------------------------------------------------------------

    After evaluating these comments and the changes that we made to 
paragraph (b)(6), we are adding new paragraph (b)(7) to the final rule. 
This paragraph requires the establishment of evaluation thresholds. We 
included the requirement for evaluation thresholds within the final 
rule because we agree with commenters that thresholds would provide a 
more objective method to assess the potential development of material 
damage outside the permit area. In addition, evaluation thresholds 
provide an opportunity to develop and implement corrective measures 
before adverse impacts rise to the level of material damage to the 
hydrologic balance outside the permit area. We revised the terminology 
from ``corrective action thresholds'' to ``evaluation thresholds'' 
because the action of reaching a threshold would result in reassessment 
of the probable hydrologic consequences determination and cumulative 
hydrologic impact assessment. Corrective action may not be necessary if 
additional evaluation shows that the impact will not rise to the level 
of material damage to the hydrologic balance outside the permit area. 
However, if adverse trends exist, it is incumbent upon the SMCRA 
regulatory authority to evaluate the causes of the adverse trends and 
take action to ensure that the trends do not result in material damage 
to the hydrologic balance outside the permit area.
    Final paragraph (b)(7) requires that evaluation thresholds be 
expressed as numeric values because the thresholds must be measurable 
in order to function as an early warning system that provides ample 
opportunity for the permittee and the regulatory authority to conduct 
the necessary evaluation and undertake any necessary measures to 
prevent material damage to the hydrologic balance outside the permit 
area. This requirement is intended to identify and address potential 
water quality and quantity issues before any standards have been 
violated. This early intervention strategy is necessary because, once a 
water quality issue exists, it is often very costly or impossible to 
correct. Evaluation thresholds institutionalize early detection 
techniques, which can prevent the need for long-term treatment and 
other costly environmental harms through the prevention of material 
damage to the hydrologic balance outside the permit area.
    Under final Sec.  773.15(e), a SMCRA regulatory authority may not 
approve a SMCRA permit application if the cumulative hydrologic impact 
assessment indicates material damage to the hydrologic balance is 
likely to occur outside the permit area. Material damage to the 
hydrologic balance outside the permit area that occurs after permit 
issuance constitutes a violation of final Sec.  816.34(a)(2). In that 
situation,

[[Page 93181]]

the state regulatory authority must take enforcement action.
    Evaluation thresholds are not enforceable as performance standards. 
They also do not amend, supersede, modify or otherwise conflict with 
applicable Clean Water Act requirements, including any National 
Pollutant Discharge Elimination System effluent limitations or 
applicable state or federal water quality standards. Instead, 
evaluation thresholds trigger an obligation for the regulatory 
authority, in consultation with the Clean Water Act agency, as 
appropriate, to evaluate the circumstances causing adverse trends and 
exceedance of the threshold. The purpose of the evaluation and 
coordination is to better ensure that material damage to the hydrologic 
balance outside the permit area does not occur as a result of mining 
activity. If monitoring results at the locations designated under final 
paragraph (b)(6)(iv) document an exceedance of an evaluation threshold, 
the regulatory authority must determine the cause of the exceedance in 
consultation with the Clean Water Act authority, as appropriate. The 
regulatory authority must also determine the likelihood that the 
evaluation threshold exceedance will develop into material damage to 
the hydrologic balance outside the permit area.
    The regulatory authority must issue an order to revise the permit 
if the regulatory authority determines that the adverse trend is the 
result, in whole or in part, of the mining operation. For a more 
complete discussion of the relationship between material damage 
thresholds, evaluation thresholds, and water monitoring requirements 
please see the discussion of general comments in Part IV. M. of this 
preamble.
    We received numerous comments on proposed paragraph (b)(8), now 
final paragraph (b)(9). In response to these comments and to maintain 
consistency with other aspects of the final rule, we revised proposed 
paragraph (b)(8)(i), now final paragraph (b)(9)(i), to ensure that the 
proposed operation will not result in violation of applicable Clean 
Water Act water quality standards or disrupt or preclude attainment of 
certain uses as identified in final paragraphs (b)(9)(i)(A), (B) and 
(C). For consistency with the revised definition of ``material damage 
to the hydrologic balance outside the permit area'' in Sec.  701.5, we 
deleted ``reasonably foreseeable uses'' from this paragraph. The final 
rule still protects designated and premining uses. It more closely 
mirrors the requirements of SMCRA, while explicitly acknowledging that 
isolated water quality exceedances or short-term local or temporal 
stream impacts may occur and may not rise to the level of material 
damage to the hydrologic balance outside the permit area.
    Two regulatory authority commenters suggested we replace the term 
``exceedance'' with ``long term exceedance'' at proposed paragraph 
(b)(8)(i)(B), now paragraph (b)(9)(i). In consideration of the 
implications associated with words that may qualify exceedance such as 
``long-term'' or ``minor,'' and concerns on how the term would be 
interpreted, we removed the reference to exceedance at previous 
paragraph (b)(8)(i)(B), now final paragraph (b)(9)(i).
    An industry commenter suggested that we revise proposed 
(b)(8)(i)(B) to account for drought conditions, changes in human 
activity, and other environmental and human use changes that are 
unrelated to mining that could affect a watershed or streamflow regime. 
In response, we added language to final paragraphs (b)(9)(i) through 
(iv) that the proposed operation--
    (1) Will not violate applicable Clean Water Act water quality 
standards;
    (2) Preclude attainment of premining use when no water quality 
standards exist, or preclude attainment of premining uses for 
groundwater;
    (3) Not result in changes in size or frequency peak flows in areas 
outside the permit boundary;
    (4) Perennial and intermittent streams will have sufficient base 
flow at all times to maintain their premining flow regime; and
    (5) Be designed to protect quality and quantity of aquifer units to 
ensure the prevailing hydrologic balance.
    This revision clarifies that it is the mining operation that cannot 
cause the adverse impacts identified in final paragraphs (b)(9)(i) 
through (iv). It allows the regulatory authority to distinguish between 
environmental and human use changes that are related to mining from the 
proposed operation and those that are not. In addition, the baseline 
monitoring requirements in Sec.  780.19 of the final rule will better 
enable the regulatory authority to distinguish between mining-related 
impacts and non-mining impacts.
    Final paragraph (b)(9) requires the regulatory authority to, after 
consultation with the Clean Water Act authority, as appropriate, 
provide supporting data and analyses that the proposed operation has 
been designed to prevent material damage to the hydrologic balance 
outside the permit area. To support this finding, the cumulative 
hydrologic impact assessment must include several determinations, with 
appropriate documentation, or an explanation of why the determination 
is not necessary or appropriate. Final paragraph (b)(9)(i) provides 
that one of those determinations is that, except as provided in final 
Sec. Sec.  780.22(b) and 816.40, the proposed operation will not: (A) 
Cause or contribute to a violation of applicable water quality 
standards adopted under the authority of section 303(c) of the Clean 
Water Act, 33 U.S.C. 1313(c), or other applicable state or tribal water 
quality standards; (B) cause or contribute to a violation of applicable 
state or tribal groundwater quality standards; (C) preclude attainment 
of a premining use of a surface water located outside the permit area 
when no water quality standards have been established for that surface 
water; or (D) preclude attainment of a premining use of groundwater 
located outside the permit area.
    We have also revised paragraph (b)(8), now final rule paragraph 
(b)(9), slightly by moving three subsections. Proposed paragraph 
(b)(8)(i)(A) pertained to conversion of streams from one stream type to 
another stream type (e.g., intermittent to ephemeral) outside of the 
permit area. We have allowed some forms of conversion as long as the 
stream maintains its designated use(s) and have moved this language to 
final rule paragraph (b)(9)(iii). We retained the language pertaining 
to streams maintaining their applicable Clean Water Act water quality 
standards and moved it to final rule paragraph (b)(9)(i)(A). We also 
slightly modified language at paragraph (b)(6)(i)(F) pertaining to 
adversely affecting threatened or endangered species. We modified final 
rule paragraph (b)(6)(i)(F) to say the cumulative hydrologic impact 
assessment evaluation must consider impacts to threatened and 
endangered species and also included language to the definition of 
material damage to the hydrologic balance outside the permit area 
pertaining to a violation of the Endangered Species Act. We changed the 
language in those two sections to match the intent of each respective 
section. Adding language to the definition of ``material damage to the 
hydrologic balance outside the permit area'' in reference to a 
violation of the Endangered Species Act also serves as a way to 
memorialize the performance standard nature of such an event. We also 
made these changes to be consistent with final rule Sec.  780.16(b), 
pertaining to the fish and wildlife protection and enhancement plan and 
Sec.  779.20, pertaining to information about the fish

[[Page 93182]]

and wildlife resources to be included in the permit application.
    Some commenters expressed concern with the proposed language at 
paragraph (b)(8)(ii), now paragraph (b)(9)(ii), requiring that the 
operation be designed to prevent an increase in damage from flooding 
when compared to premining conditions. One of the commenters indicated 
that it would be difficult to make the measurements required under this 
provision and that it would require an investigation of premining flood 
events to establish baseline for assessing damage from flooding. We 
agree that the proposed language could be interpreted to require an 
investigation of premining flood events. We have removed the phrase 
``damage from'' within paragraph (b)(9)(ii) of the final rule in order 
to clarify that such a premining investigation is not required. The 
final rule, however, continues to require a finding that the operation 
has been designed to ensure that flows will not cause increased 
flooding outside the permit area compared to premining conditions. This 
revision focuses assessment upon peak flows that could result in 
flooding and not damage from flooding. In addition, we added the phrase 
``outside the permit area'' to clarify that the operation must be 
designed to ensure that neither the mining operation nor the final 
configuration of the reclaimed area will result in changes in the size 
or frequency of peak flows from precipitation events or thaws that 
would cause an increase in flooding outside the permit area, when 
compared with premining conditions. We made this change to focus the 
assessment on peak flows that could result in flooding and potential 
damage. One commenter suggested modifying the word ``changes'' to 
``increases'' to be more accurate and limiting. This modification is 
not necessary because the final rule at paragraph (b)(9)(ii) states 
that the changes would be of size or frequency to cause an increase in 
flooding.
    Another commenter recommended that the applicant should plan for, 
and submit, sufficient information on the magnitude of precipitation 
events, especially given that the operator knows the final reclamation 
configuration of the site and can anticipate the magnitude of 
stormwater runoff resulting from the final reclamation configuration. 
The commenter also opined that this information was not required in the 
proposed rule. We do not agree with the commenter that the proposed 
rule did not address this issue; design criteria for postmining site 
configuration are found at Sec. Sec.  816.102 to 816.111. These design 
criteria guide the design, construction, and implementation of the 
final site reclamation configuration and include requirements to 
address postmining drainage issues and stormwater management. In 
addition, hydrologic performance criteria exist at section 816.34 to 
prevent stormwater-induced flooding from SMCRA sites.
    One commenter questioned the application of the term ``recharge 
capacity'' within proposed paragraph (b)(8)(iii), now paragraph 
(b)(9)(iii). We have removed this term from this paragraph of the final 
rule because the term refers to the ability of the overburden to 
release water to the surface water system and does not reflect the goal 
of maintaining baseflow in streams overlying and adjacent to a SMCRA 
mine site. Recharge capacity is an important consideration in the 
overall hydrologic balance but is not the primary objective of 
paragraph (b)(9)(iii). Recharge capacity is a term used to describe the 
movement of water through soil and rock, ultimately to discharge as 
surface water flow. This concept is different than the primary 
objective of (b)(9)(iii) which is to maintain baseflow in a stream. For 
this reason, we removed the term ``recharge capacity'' to focus the 
requirement on sustaining baseflow to prevent material damage to the 
hydrologic balance outside the permit area.
    Commenters alleged that, as proposed, paragraph (b)(8)(iii), now 
paragraph (b)(9)(iii), prohibited the conversion of a perennial or 
intermittent stream to an ephemeral stream or conversion of a perennial 
stream to an intermittent stream. A regulatory authority commented 
that, as drafted, the provision would result in the inability of mine 
operators to permit and mine lands because stream conversion is a 
common, existing occurrence during mining and reclamation. Two other 
commenters indicated that, in effect, this paragraph would be 
impossible to satisfy because streams behave differently depending upon 
numerous natural and man-made interdependent variables. The commenters 
further opined that technological and economic limitations may 
necessitate stream conversion in some situations. The same commenters 
also suggested that it should be permissible to allow a portion of a 
watershed to be degraded as long as the watershed as a whole remains 
functional. For these reasons the commenters recommended removal of the 
proposed provision that they interpreted as limiting or preventing 
stream conversions. Several of the commenter's raised concerns about 
conversions both inside the permit area and outside the permit area. We 
address commenters' concerns about conversions outside the permit area 
in this section of the final rule and discuss the changes to the final 
rule about conversions inside the permit area in the preamble 
discussion of final rule Sec. Sec.  780.28(e) and 784.28(e), below. In 
consideration of the comments specific to preparation, use, and review 
of the cumulative hydrologic impact assessment, we have revised 
paragraph (b)(9)(iii) of the final rule about conversions of perennial 
and intermittent streams outside the permit area. We acknowledge that 
conversion of streams may often have beneficial effects, such as 
converting an ephemeral stream to an intermittent or perennial stream. 
Thus, we have revised the rule language to allow conversion of 
intermittent streams to perennial streams or conversion of an ephemeral 
stream to an intermittent or perennial stream outside the permit area 
as long as the conversion is consistent with the requirements in 
paragraph (b)(9)(i) and does not violate the Endangered Species Act. 
Allowing conversion of certain streams addresses the commenters' 
concern about limiting or preventing conversion while at the same time 
adhering to the environmental objectives of SMCRA found in sections 
510(b) and 515(b).\410\
---------------------------------------------------------------------------

    \410\ 30 U.S.C. 1260(b) and 1265(b).
---------------------------------------------------------------------------

    One regulatory authority suggested that we delete proposed 
paragraph (b)(8)(iv), now paragraph (b)(9)(iv), related to the 
protection of the quantity and quality of water in ``any aquifer that 
significantly ensures the prevailing hydrologic balance.'' The 
commenter opined that water replacement requirements for in-use water 
supplies are already protected and adhered to by operators and that 
replacement supplies are of equal or better quantity, quality, and 
delivery method. We interpret this comment to mean that existing rule 
language in other sections provides the same protection as proposed 
paragraph (b)(9)(iv) and that existing water replacement provisions can 
be better than existing conditions. While we support the regulatory 
authorities' continued use and implementation of water replacement 
requirements, we decline to remove the provision because final 
paragraph (b)(9)(iv) protects more resources than the water replacement 
provisions found in the previous regulations. Water replacement 
provisions are designed to address individual water supplies on a case-
by-case basis, which implies an intact

[[Page 93183]]

aquifer system. In contrast, final paragraph (b)(9)(iv) requires a 
review of, and prevention of, material damage to the hydrologic balance 
outside the permit area to important and hydrologically significant 
aquifers in order to address an entire aquifer, not just a single water 
supply.
Final Paragraph (c): Subsequent Reviews
    We have made a minor change to proposed paragraph (c)(1)(i), now 
final paragraph(c)(2). Commenters pointed out that, within this 
section, biological monitoring was not included in the review of 
monitoring data that the regulatory authority must perform. We agree 
that it should be included and have added the requirement to this 
section.
    One commenter opined that proposed Sec.  780.21(c) is not 
adequately conservative because it requires cumulative hydrologic 
impact assessments only for significant permit revisions. According to 
the commenter, cumulative hydrologic impact assessments should also be 
required for certain non-significant revisions. However, the commenter 
did not provide any specific examples of non-significant revisions that 
would have the potential to affect the analysis. We are retaining the 
rule as proposed in relationship to this comment. As explained in the 
preamble to the proposed rule \411\ preparation of a new or updated 
cumulative hydrologic impact assessment will occur whenever the 
regulatory authority finds that one is needed based on the evaluation 
in final paragraphs (c)(1) and (2).
---------------------------------------------------------------------------

    \411\ 80 FR 44436, 44503 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several industry and regulatory authority commenters expressed 
concern that the cumulative hydrologic impact assessment review process 
required in paragraph (c) was linked to permit renewal. These 
commenters stated that section 506(d) of SMCRA \412\ guarantees the 
right of successive permit renewal and any changes to the cumulative 
hydrologic impact assessment and underlying conclusions might provide 
an opportunity to void this right. In response, we have revised final 
paragraph (c)(2) to require review of the cumulative hydrologic impact 
assessment, including the evaluation thresholds, every three years 
instead of linking the review to the renewal of the permit. Because of 
the same concerns about permit renewal, we have revised paragraphs 
(b)(vii) through (viii) of final rule Sec.  774.15, related to permit 
renewal, to remove the requirements to review all monitoring data and 
to review the probable hydrologic consequences determination.
---------------------------------------------------------------------------

    \412\ 30 U.S.C. 1256(d).
---------------------------------------------------------------------------

    One regulatory authority commenter explained that it has been 
standard practice since its program was approved to update the 
cumulative hydrologic impact assessment whenever a change or proposed 
change of any aspect of the hydrologic environment warranted the update 
or when area is added to the permit. The commenter continued by noting 
that a significant update to the probable hydrologic consequences 
determination or the hydrologic reclamation plan would trigger a 
cumulative hydrologic impact assessment update. Another regulatory 
authority commenter indicated that cumulative hydrologic impact 
assessment reviews are done as a matter of course and updated as 
necessary. Industry commenters recognized that any data analysis may be 
done periodically, as determined by the regulatory authority, in the 
Annual Report, interim review, or other similar report or process. 
Commenters generally supported a requirement that allows the state 
regulatory authority discretion for determining when a cumulative 
hydrologic impact assessment needs to be updated. Although we recognize 
that some states do a good job with these updates, a periodic review of 
the cumulative hydrologic impact assessment data and conclusions must 
occur on a frequent basis to ensure that material damage to the 
hydrologic balance outside the permit area is not occurring or is 
likely to occur through the life of the permit. The absence of 
consistent cumulative hydrologic impact assessment reviews likely 
results in adverse trends that may persist to a point where corrective 
action options become limited, costly, or impossible. Regular review 
will allow the operation plan to be adjusted before corrective action 
is needed or options become too limited to adequately protect the 
hydrologic balance. We selected three year intervals for this review 
because that time period is not linked with permit renewal or mid-term 
review but is frequent enough to allow for detection of necessary 
changes in the mining and reclamation plan and/or needed corrective 
action to ensure protection of the hydrologic balance outside the 
permit area. This ensures that permit renewal and mid-term reviews are 
not contingent on the cumulative hydrologic impact assessment review.
Section 780.22: What information must I include in the hydrologic 
reclamation plan and what information must I provide on alternative 
water sources?
    Section 780.22 describes the information the operator must include 
in the hydrologic reclamation plan and the information that must be 
provided on alternative water sources. As discussed in the preamble to 
the proposed rule, we proposed to modify our regulations at Sec.  
780.22.\413\ In response to comments that we received, we have made 
several modifications.
---------------------------------------------------------------------------

    \413\ 80 FR 44436, 44526-27 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): Hydrologic Reclamation Plan
    This paragraph identifies the requirements the permit applicant 
must include in the hydrologic reclamation plan, including the maps and 
descriptions that demonstrate how the proposed operation will comply 
with the applicable provisions of subchapter K, that relate to 
protection of the hydrologic balance. We received a comment from a 
regulatory authority on proposed paragraphs (a)(2)(i) and (ii), 
requesting that we clarify the relationship between disturbances to the 
hydrologic balance in adjacent areas, which are allowable, and material 
damage to the hydrologic balance outside the permit area, which is not 
allowable. The regulatory authority also suggested that we define 
disturbances. We have defined material damage to the hydrologic balance 
outside the permit area in Sec.  701.5 and have provided a general 
discussion of material damage to the hydrologic balance outside the 
permit area in Part IV. L. of the preamble. Under our regulations as 
finalized today, any activity that adversely affects the hydrology of 
adjacent areas but that does not rise to the level of material damage 
to the hydrologic balance outside the permit area would be considered a 
disturbance subject to the minimization requirements of our rule. 
Consequently, although we appreciate the commenter's concern, it is not 
necessary to define ``disturbance,'' and we have not made any 
substantive changes to these paragraphs in the final rule. Importantly, 
these paragraphs retain the distinctions present in sections 510(b)(3) 
and 515(b)(10) of SMCRA.\414\ We did make minor revisions to clarify 
the applicability of the bonding sections to paragraphs (a)(2) and (4).
---------------------------------------------------------------------------

    \414\ 30 U.S.C. 1260(b)(3) and 1265(b)(10).

---------------------------------------------------------------------------

[[Page 93184]]

Final Paragraph (b): Alternative Water Source Information
    Several regulatory authority commenters expressed concern about 
proposed paragraph (b). One regulatory authority suggested that we 
delete the paragraph and retain the previous regulations. In 
particular, the regulatory authority did not like it that this 
provision invoked the alternative water source requirements for adverse 
effects to water sources ``within the proposed permit . . . area[ ].'' 
The commenter pointed out that there are always adverse impacts within 
the permit area. We are not accepting the suggestion to remove the 
entire paragraph (b) because this paragraph is necessary to clarify the 
water supply replacement requirements of sections 717(b) and 720(a)(2) 
of SMCRA.\415\ However, upon our own review of the rule language, we 
recognized that we erroneously included the phrase ``within the 
proposed permit area and adjacent area'' in paragraph (b)(1) of the 
proposed rule and are removing it from the final rule to ensure the 
regulations conform to section 717(b) and 720(a)(2), which do not 
contain this limiting phrase.
---------------------------------------------------------------------------

    \415\ 30 U.S.C. 1307(b) and 1309a(a)(2).
---------------------------------------------------------------------------

    Some of the other regulatory authority commenters asserted that in 
certain situations the regulatory authority already requires water 
supply infrastructure to be put in place in advance of mining to ensure 
uninterrupted service. It is good that some regulatory authorities are 
already ensuring that there will be no gap in the water supply as a 
result of mining. However, given the importance Congress has placed on 
protecting water supplies, this requirement should be applicable 
everywhere. The importance of protection water supplies was underscored 
in section 717(b) of SMCRA that requires that the operator of a surface 
coal mine replace the water supply of an owner of interest in real 
property who obtains all or part of his supply of water for domestic, 
agricultural, industrial, or other legitimate use from an underground 
or surface source where such supply has been affected by contamination, 
diminution, or interruption proximately resulting from such surface 
operation.\416\ Similarly, section 709(a) of SMCRA affords protections 
for water replacement as a result of underground mining operations 
requiring that underground coal mining operations must promptly replace 
any drinking, domestic, or residential water supply from a well or 
spring in existence prior to the application for a surface coal mining 
and reclamation permit, which has been affected by contamination, 
diminution or interruption resulting from underground coal mining 
operations.\417\ Thus, we are not removing paragraph (b)(1) from the 
final rule text, but have revised some of the text for the sake of 
clarity. For the sake of clarity, we also added paragraph (b)(1)(ii) to 
include the requirement for an implementation schedule as part of the 
water supply replacement plan. This additional requirement will help 
ensure that the water supply replacement plan developed by the operator 
is well planned and feasible. One regulatory authority suggested that 
we delete the word ``may'' in proposed paragraph (b)(3)(i). This 
paragraph requires that an alternative water supply be developed and 
installed on a permanent basis before the operation ``may'' adversely 
affect an existing water supply protected under the performance 
standards of final Sec.  816.40, which discusses the responsibility of 
an operator to replace water supplies. If there is a possibility that a 
coal-mining operation could adversely impact an existing water supply, 
an alternative water supply must be developed and installed on a 
permanent basis before the operation reaches a point where it could 
adversely affect that existing water supply. Although we do not agree 
with the commenter's concern about the use of ``may'' we have revised 
the text for the purpose of clarity and without using the word ``may'' 
in the revision. Therefore, within the final rule, paragraph (b)(3)(i) 
in the final rule reads, ``[w]hen a suitable alternative water source 
is available, your operation plan must require that the alternative 
water supply be developed and installed on a permanent basis before 
your operation advances to the point at which it could adversely affect 
and existing water supply protected under Sec.  816.40 of the 
chapter.''
---------------------------------------------------------------------------

    \416\ 30 U.S.C. 1307(b).
    \417\ 30 U.S.C. 1309a(a)(2).
---------------------------------------------------------------------------

    Other commenters expressed concern about the lack of regulatory 
authority discretion in the proposed rule to make a determination that 
a water supply could be adversely impacted. In addition, a commenter 
was concerned about the potential burden on industry, especially for 
underground operations, to replace all potentially impacted water 
supplies in advance of mining. The final rule mirrors the water 
replacement provisions located in previous Sec. Sec.  816.41(h) and 
817.41(j), which provide the regulatory authority the discretion to 
approve the probable hydrologic consequences determination that 
identifies specific water supplies that may be adversely affected and 
that would require an alternative source. The final rule does not 
require replacement of all potentially impacted supplies prior to any 
mining; however, the water must be replaced prior to the supply being 
adversely impacted. This provision guarantees that there will be no gap 
in the availability of water sources and that water sources remain 
available for use throughout the mining process. As long as this 
guarantee is met, the timing of when a specific alternative water 
source needs to be replaced is left to the discretion of the regulatory 
authority, as approved in the water supply replacement plan.
Section 780.23: What information must I include in plans for monitoring 
of groundwater, surface water, and the biological condition of streams 
during and after mining?
    As discussed in the preamble to the proposed rule,\418\ we proposed 
to modify our regulations at Sec.  780.23. This section describes what 
the operator must include in plans for monitoring of groundwater and 
surface water, and the biological condition of streams during and after 
mining. This includes annual biological monitoring of intermittent and 
perennial streams. In response to comments and based upon our further 
evaluation of the proposed rule, we have made several changes to the 
final rule.
---------------------------------------------------------------------------

    \418\ 80 FR 44436, 44505-44507 (Jul. 27, 2015).
---------------------------------------------------------------------------

    We have revised paragraph (a)(1)(i) and (b)(1)(i) to clarify that 
the monitoring plans for groundwater and surface water must include the 
locations of monitoring sites, the measurements that must be taken at 
each location, and a listing of the parameters to be monitored. This 
additional information will assist the review and analysis of the data 
obtained from monitoring by providing location and measurement context. 
Additionally, in final paragraphs (a)(1)(ii) and (b)(1)(iii), we have 
deleted ``for each parameter'' to be consistent with the changes made 
to final paragraphs (a)(1)(i) and (b)(1)(i).
Final Paragraph (a): Groundwater Monitoring Plan
    In the second sentence of Sec.  780.23(a)(1)(iii), we state that, 
at a minimum, the groundwater monitoring plan must include monitors in 
three types of locations. One commenter requested that we rephrase this 
sentence to require only that the groundwater monitoring plan 
``consider'' the placement of monitoring wells in these three types of 
locations because the

[[Page 93185]]

commenter alleges that some operators cannot establish monitoring sites 
at the locations specified in this section due to factors beyond their 
control, such as land ownership conflicts. We decline to make this 
change because it would, in effect, make the requirements of 
subparagraphs (A)-(C) about monitoring well placement discretionary. 
The groundwater sampling data collected as part of paragraph (a) is 
necessary for comparison with the groundwater data collected as part of 
Sec.  780.19, a comparison that will help identify any trends and 
changes in the groundwater conditions. We recognize that land ownership 
conflicts may present certain challenges. However, without minimum 
requirements for groundwater monitoring, the regulatory authority would 
have insufficient data to determine if material damage to the 
hydrologic balance outside the permit area has occurred. Therefore, we 
have determined that locating monitoring wells as required under 
paragraphs (a)(iii)(A) through (C) is necessary, despite potential 
difficulties associated with locating monitoring wells in different 
locations.
    Several commenters questioned the necessity of installing 
groundwater monitoring wells in aquifers located above and below the 
coal seam to be mined as proposed in paragraph (a)(1)(iii)(A), in 
backfilled portions of the permit area as proposed in paragraph 
(a)(1)(iii)(B), and in existing underground mine workings that are in 
direct hydrologic connection to the proposed operation as proposed in 
paragraph (a)(1)(iii)(C). The commenters considered monitoring above 
and below the coal seam unnecessary and expensive, and wells installed 
in the backfill and in underground mine workings to be of little value. 
Despite these comments, we have not removed these requirements because 
they are necessary to ensure that the coal mining operation, during and 
after mining, is not causing material damage to the hydrologic balance 
outside the permit area. Data collected from upgradient monitoring 
wells installed in aquifers located above and below the coal seam 
provide information on the condition of the groundwater entering the 
mine site. Comparison of this upgradient information to groundwater 
data obtained from downgradient monitoring wells as it exits the mine 
site will provide the mine operator and the regulatory authority 
insight into the effects of the mining activities on the quality and 
quantity of the groundwater as compared to offsite conditions. 
Monitoring wells installed in the backfill area and in the underground 
mine pools is necessary because these areas are the most likely sources 
of acid mine drainage if it develops. Therefore, we are retaining these 
requirements in the final rule.
    One commenter questioned whether the monitoring wells required 
under proposed Sec.  784.23(a)(1)(iii)(C) for mine pools that result 
from underground mining operations would be removed before final bond 
release and asserted that if they are not removed, it could become a 
safety issue. Data from hydrologically connected mine pools will 
provide both the permittee and the regulatory authority with necessary 
information to evaluate the efficacy of the probable hydrologic 
consequences determination and to evaluate conditions in the mine pools 
prior to final bond release; thus, we are retaining the requirement. 
However, we agree with the commenter that a monitoring well left after 
final bond release could become a safety issue if it is not transferred 
to the property owner because no one would be responsible for 
maintaining the well. When no longer needed, and with approval by the 
regulatory authority, monitoring wells must be permanently sealed or 
transferred to another party consistent with Sec. Sec.  816.13 and 
816.39 of this part. Therefore, because appropriate transfer or sealing 
of monitoring wells must already occur under final Sec. Sec.  816.13 
and 816.39, respectively, we do not need to make any changes to final 
Sec.  784.23 in response to this comment. Under paragraph 
(a)(1)(iv)(B), we now requiring that the monitoring data be used to 
determine the ``biology'' of the perennial and intermittent streams 
within the proposed permit and adjacent areas instead of the 
``biological condition'' of those streams. We made this change for the 
same reasons we articulated above in connection with final Sec.  
780.19(c)(6)(vi) through (viii): ``biology'' encompasses the type of 
information needed to establish both the biological condition of 
perennial and intermittent streams, for which established protocols 
exist and the biology of intermittent streams for which established 
protocols do not exist. This language change recognizes that not all 
states have scientifically valid protocols for assessing the biological 
condition of intermittent streams. We also made an editorial 
correction, by inserting ``proposed'' before permit and adjacent areas. 
During the development of the groundwater monitoring plan, the permit 
has not been issued yet and is part of the permit application. By 
inserting the word ``proposed'', final paragraph (a)(1)(iv)(B) now 
correctly reflects the status of the permit application process during 
compliance with this provision.
    Under final paragraphs (a)(2)(i) and (b)(2)(i), we replaced the 
text ``if those parameters relate to'' with ``to the extent needed to 
assess,'' in order to clarify that the parameters to be monitored under 
final paragraphs (a)(2)(i) and (b)(2)(i) must be sufficient to evaluate 
the requirements of paragraphs (a)(2)(i)(A), and (B) and (b)(2)(A)-(E). 
Furthermore, under paragraphs (a)(2)(i)(A) and (b)(2)(i)(B), we have 
added ``accuracy of the'' to stipulate that the purpose of the 
monitoring is to improve accuracy of the findings and predictions of 
the probable hydrologic consequences determination prepared under Sec.  
780.20.
    Under the final rule, we have deleted proposed paragraphs 
(a)(2)(i)(B) and (b)(2)(i)(D) regarding the requirement to monitor the 
parameters necessary to assess the biological condition of perennial or 
intermittent streams or other surface water bodies that receive 
discharges from groundwater within the proposed permit and adjacent 
areas. The remaining sections have been renumbered accordingly. The 
monitoring requirements in the deleted paragraphs were removed because 
the information they required was already accounted for in the 
monitoring requirements under final paragraphs (a)(2)(i)(A) and 
(b)(2)(i)(B), which require monitoring of parameters necessary to 
assess the accuracy of the findings and predictions in the probable 
hydrologic consequences determination under Sec.  780.20. In turn, 
Sec.  780.20(a)(5)(vii) states that the applicant must base the 
probable hydrologic consequences determination on an analysis of the 
baseline hydrologic, geologic, biological, and other information 
required under Sec.  780.19 and must include findings on the impact 
that the proposed operation will have on the biology of perennial and 
intermittent streams within the proposed permit and adjacent areas, 
except as provided in Sec.  780.19(g) of that part. Therefore, 
monitoring of parameters necessary to assess the accuracy of the 
findings and predictions of the probable hydrologic consequences 
determination would necessarily include monitoring of the biology, 
making proposed (a)(2)(i)(B) and (b)(2)(i)(D) redundant.
    We made several changes to final paragraphs (a)(2)(ii) and 
(b)(2)(ii). First, we revised the titles of these paragraphs to clarify 
that these sections contain the minimum requirements for sampling and 
analysis of groundwater and surface

[[Page 93186]]

water, respectively. Next, we clarified paragraphs (a)(2)(ii) and 
(b)(2)(ii) by deleting ``that the following parameters be measured at 
each location'' and replacing it with ``collection and analysis of a 
sample from each monitoring point.'' Finally, we added language to the 
end of paragraphs (a)(2)(ii) and (b)(2)(ii) to better introduce the 
data sampling and analysis requirements in (a)(2)(ii)(A) through (D) 
and (b)(2)(ii)(A) through (D).
    We also reduced redundancies in the rule by removing the breakout 
of specific parameters that must be collected and analyzed every 3 
months in proposed paragraphs (a)(2)(ii)(A) through (Q) and 
(b)(2)(ii)(B) through (S). These parameters are already listed in final 
Sec.  780.19(a)(2). Instead, final paragraphs (a)(2)(ii)(A) and 
(b)(2)(ii)(A) simply require that the data collected include an 
analysis of each sample for parameters listed in Sec.  780.19(a)(2). 
The remaining requirements have been re-lettered accordingly. For 
clarification purposes, under proposed paragraph (a)(2)(ii)(R), now 
final paragraph (a)(2)(ii)(B), we have added language that specifies 
that the reporting requirements apply to water levels for all wells and 
discharge rates for all springs or underground openings used for 
monitoring purposes. We have revised proposed paragraphs (a)(2)(ii)(S) 
and (b)(2)(ii)(T), now final paragraphs (a)(2)(ii)(C) and 
(b)(2)(ii)(C), respectively, for clarity. Final paragraphs 
(a)(2)(ii)(C) and (b)(2)(ii)(C) now more clearly state that the data 
required under this paragraph must include an analysis of all 
parameters detected in the baseline sampling conducted under Sec.  
780.19(d) of this part.
    Proposed paragraphs (a)(2)(ii)(T) and (b)(2)(ii)(U), now final 
paragraphs (a)(2)(ii)(D) and (b)(2)(ii)(D), respectively, have been 
modified to be consistent with the revisions made to the titles of 
these sections. Additionally, we have replaced the phrase ``parameters 
of local significance'' with the phrase ``other parameters of concern'' 
for consistency with the definition of ``parameters of concern'' 
included in final Sec.  701.5.
    Proposed paragraphs (a)(3)(ii) and (b)(3)(ii) included the 
sentence: ``[a]t a minimum, the plan must require monitoring of all 
parameters for which the regulatory has established a `material damage 
criteria' \419\ pursuant to the cumulative hydrologic impact 
assessment.'' We have revised and moved this requirement. It is now 
found in final Sec.  780.23(a)(2)(i) and (ii)(D) and states that the 
plan must require monitoring of all parameters for which the regulatory 
authority has established ``evaluation thresholds under Sec.  
780.21(b)(7) of this part.'' We chose to require monitoring for 
evaluation thresholds instead of material damage thresholds because, as 
set forth in final Sec.  780.21(b)(7), evaluation thresholds must be 
set for all critical water quality and quantity parameters. Evaluation 
thresholds under Sec.  780.21(b)(7) are values for water quality and 
quantity parameters that, when attained, will trigger reassessment of 
the probable hydrologic consequences determination and development of 
corrective measures, if necessary, to prevent material damage to the 
hydrologic balance outside the permit area. Monitoring of these 
critical parameters is thus crucial to detect whether hydrologic 
conditions are being affected by the mining operation in a manner that 
could cause an exceedance of the comparable material damage threshold 
if corrective action is not taken. Thus, any parameter for which there 
is an evaluation threshold set must be monitored; otherwise, the 
purpose of setting an evaluation threshold is not being achieved.
---------------------------------------------------------------------------

    \419\ ``Material damage criteria'' are referred to as ``material 
damage thresholds'' in the final rule. See final preamble discussion 
for section 780.21(b)(6).
---------------------------------------------------------------------------

    Commenters noted that ``water-bearing stratum,'' as used in 
proposed paragraph (a)(4), is a new term and is not defined. In 
response, in final paragraph (a)(4), we have replaced the term ``water-
bearing stratum'' with ``aquifer,'' a term that is defined in Sec.  
701.5. This change avoids using an undefined term but does not change 
the meaning of the paragraph.
    Several commenters requested, that, in order to better protect 
groundwater resources, we rescind the exception in paragraph (a)(4) 
from monitoring for aquifers that have no existing or foreseeable use 
for agricultural or other human purposes or for fish and wildlife 
purposes and that do not significantly ensure the hydrologic balance 
within the cumulative impact area. We decline to make this change. 
SMCRA requires monitoring ``for those surface coal mining and 
reclamation operations which remove or disturb strata that serve as 
aquifers which significantly insure the hydrologic balance of water use 
either on or off the mining site.'' \420\ Because SMCRA does not 
further define the qualities of aquifers that ``significantly insure 
the hydrologic balance,'' we have used our discretion to interpret this 
monitoring requirement to refer to aquifers that are or have an 
existing or foreseeable use for agricultural, human, or fish and 
wildlife purposes.
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    \420\ 30 U.S.C. 1267(b)(2).
---------------------------------------------------------------------------

    This exception also implements section 102(f) of SMCRA \421\ by 
striking a balance between the protection of the environment and 
supporting the Nation's need for coal by requiring ground water 
monitoring only where there is an existing or foreseeable use for 
agricultural, human, or fish and wildlife purposes, or where the 
aquifer significantly ensures the hydrologic balance within the 
cumulative impact area. Where a permit qualifies for the exemption in 
final (a)(4), the applicant can avoid monitoring costs, allowing 
resources to be available for other protection and enhancement measures 
that could have a more direct benefit to the environment.
---------------------------------------------------------------------------

    \421\ 30 U.S.C. 1202(f).
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Final Paragraph (b): Surface-Water Monitoring Plan
    For changes made to final paragraphs (b)(1)(i), (b)(1)(iii), 
(b)(2)(i), (b)(2)(ii), and (b)(3)(ii), please refer to the preamble 
discussion above in the corresponding paragraphs in final paragraph 
(a).
    Several commenters requested that we allow multiple permits to rely 
on data from a single self-recording device where the multiple permits 
are close enough to share data. These commenters alleged that allowing 
multiple operators to share the cost of a self-recording device could 
result in labor and equipment cost reductions. In response to these 
comments we have added final paragraph (b)(1)(ii)(C) to allow, at the 
discretion of the regulatory authority, a single self-recording device 
to provide precipitation monitoring data for multiple permits that are 
contiguous or nearly contiguous provided the device can provide 
adequate and accurate coverage of precipitation events occurring in 
that area.
    We removed the phrase ``for each parameter to be monitored'' in 
paragraph (b)(1)(iii). For additional information about this change, 
please refer to the preamble discussion above in final paragraph 
(a)(1)(ii).
    We revised paragraph (b)(1)(v)(B) to more thoroughly address 
concerns from commenters about the clarity of the proposed rule. This 
provision now requires the applicant to describe how the monitoring 
data will be used to determine the impacts of the operation ``upon the 
biology of perennial and intermittent streams, lakes, and ponds within 
the proposed permit and adjacent areas.'' For clarity we have 
substituted a reference to ``lakes'' and

[[Page 93187]]

``ponds'' for the reference in the proposed rule to ``other surface-
water bodies.'' We have discussed the substitution of ``biology'' for 
``biological condition'' to ``biology'' above in the preamble 
discussion of Sec.  780.19(c)(6)(vi) through (viii).
    A commenter questioned the need for the monitoring data required in 
proposed paragraph (b)(1)(v)(B) to determine the impacts of the 
operation on the biology of streams that will be mined through, 
alleging that this data is unnecessary. The commenter also alleged that 
this requirement contradicts SMCRA's requirement to minimize impacts 
within the permit boundary. We disagree that this data is unnecessary. 
The collection of data related to baseline hydrologic and biologic 
conditions is necessary for the operator to make a determination 
whether restoration of the stream is possible as required in Sec. Sec.  
780.12, 780.27, 780.28, 816.56, and 816.57 of this chapter. In 
addition, it provides information on the quality and quantity of the 
surface waters prior to mining which will document the baseline 
conditions needed for determining whether stream restoration is 
successful.
    In final rule paragraph (b)(2)(i), we have deleted ``if those 
parameters relate to the'' and replaced it with ``to the extent needed 
to assess the . . . .'' Please see the preamble discussion at (a)(2)(i) 
for more discussion of this change. In the final rule, we have also 
deleted proposed paragraph (b)(2)(i)(D) which set out a requirement for 
monitoring of the biological condition of perennial or intermittent 
streams or other surface water bodies within the proposed permit and 
adjacent areas and have renumbered the remaining paragraphs 
accordingly. Please refer to the preamble discussion above in Sec.  
780.28(a)(2)(i)(B) for further information about this change.
    In the final rule, we revised proposed paragraph (b)(2)(i)(E), now 
final paragraph (b)(2)(i)(D), to clarify that the surface-water 
monitoring plan must include monitoring of those parameters necessary 
to assess the suitability of the quality and quantity of surface water 
for all designated uses under 303(c) of the Clean Water Act.\422\ We 
further revised this provision to specify that, if there are no 
designated uses associated with the surface water, the parameters for 
monitoring must be sufficient to assess all premining uses of the 
surface water. We have also clarified that these requirements apply 
both to surface water located within the proposed permit and to those 
in the adjacent areas. Similarly, we revised proposed paragraph 
(b)(2)(i)(F), now final paragraph (b)(2)(i)(E), to clarify the 
monitoring plan must include the parameters needed to assess the 
suitability of the quality and quantity of surface water to support the 
premining land uses both within the proposed permit and adjacent areas.
---------------------------------------------------------------------------

    \422\ 33 U.S.C. 1251(a) and 30 U.S.C. 1313(c).
---------------------------------------------------------------------------

    We have revised final paragraph (b)(2)(ii) for clarity. Please 
refer to the preamble discussion above on paragraph (a)(2)(ii) for more 
information. Proposed paragraph (b)(2)(ii)(A), now final paragraph 
(b)(2)(ii)(B), remains essentially unchanged except that we have 
clarified that flow rates must be obtained from each sampling location.
    We have revised proposed paragraphs (b)(2)(ii)(T) and (U), now 
final paragraphs (b)(2)(ii)(C) and (D) for clarity. For additional 
information, please refer to the preamble discussions above on final 
paragraphs (a)(2)(ii)(C) and (D).
    One commenter requested that we include a list of parameters in 
Sec.  780.23(b)(2)(iii), related to minimum requirements for point 
source discharges, including those parameters listed in proposed Sec.  
780.23(b)(2)(ii)(A) through (S). Conversely, another commenter did not 
want us to require all of the parameters referenced in Sec.  
780.23(b)(2)(ii) for point-source discharges, alleging that it would be 
outside of our authority under SMCRA. Monitoring requirements for 
point-source discharges are determined by Clean Water Act authorities 
under the National Pollutant Discharge Elimination System program. We 
do not have the authority under SMCRA to mandate what parameters must 
be included in National Pollutant Discharge Elimination System permits; 
therefore, we have made no changes to the final rule in response to 
these comments.
    A commenter stated that we should delete proposed paragraph 
(b)(2)(iii)(B) which requires the surface water monitoring plan to 
include the measurement of flow rates for point-source discharges. The 
commenter alleged that this paragraph supersedes section 402 Clean 
Water Act requirements \423\ by establishing criteria for flow 
measurements other than under National Pollutant Discharge Elimination 
System permits. We disagree with the commenter. Paragraph 
(b)(2)(iii)(A) of this section clearly states that monitoring of point-
source discharges must be in accordance with 40 CFR parts 122, 123, and 
434 and as required by the National Pollutant Discharge Elimination 
System permitting authority and the measurement of flow rates is 
required as part of the National Pollutant Discharge Elimination System 
permit. Therefore, the requirement to measure the flow rates does not 
supersede section 402 Clean Water Act; it is consistent with that Act. 
We have also prohibited the use of visual observations to measure flow 
rates. As we have stated elsewhere in this preamble, visual 
observations, by their very nature, lack precision and vary among 
observers. As such, they are not an objective measurement and cannot be 
reproduced.
---------------------------------------------------------------------------

    \423\ 33 U.S.C. 1342.
---------------------------------------------------------------------------

    We have provided additional language at the end of final paragraph 
(b)(2)(iv) to specify that the applicant must revise the surface-water 
monitoring plan to incorporate any site-specific monitoring 
requirements imposed by the National Pollutant Discharge Elimination 
System permitting or Clean Water Act authority subsequent to submission 
of the SMCRA permit application. We have added this provision to ensure 
that the applicant updates the SMCRA permit application as necessary 
with information that it has submitted in accordance with National 
Pollutant Discharge Elimination System permit requirements.
    We are adopting final paragraph (b)(3)(ii) as proposed except that 
we are requiring that the plan include monitoring of all parameters for 
which the regulatory authority has established evaluation thresholds 
under Sec.  780.21(b)(7) of this part. We explain this revision further 
at our preamble discussion for (a)(3)(ii).
Final Paragraph (c): Biological Condition Monitoring Plan
    Various commenters opposed the new biological condition monitoring 
plan requirements at proposed paragraph (c), alleging that the new 
requirements will be costly to comply with and do not offer clear 
guidance. Commenters specifically expressed uncertainty about the 
frequency and timing of monitoring under this paragraph. We acknowledge 
that the requirements at proposed paragraph (c), final paragraph (c), 
may contribute to increased monitoring costs. However, we have 
carefully evaluated the potential benefits of the information required 
by this provision and have determined that it is necessary to 
adequately determine the condition of the stream premining, during 
mining, and after mining. We find that the beneficial impacts of this 
information outweigh the costs and burdens to the operator and 
regulatory authority. With respect to the frequency of monitoring

[[Page 93188]]

during and after mining, the final rule within paragraph (c)(2)(iii) 
clarifies that the sampling frequency must be no less than annual and 
must not be so frequent as to deplete the populations being monitored.
    Some commenters opposed the requirement for the biological 
condition monitoring plan as proposed in paragraph (c), because of an 
alleged lack of available studies demonstrating that this type of 
monitoring is necessary for or appropriate to streams outside of 
Appalachia. We have determined that these requirements are necessary 
for and appropriate for mining operations throughout the country. 
Although we cite studies about Appalachia in support of our 
conclusions,\424\ the ability to obtain information through 
bioassessment protocols is currently available on international, 
national, regional, and state levels and the ability to establish 
effective baseline information for monitoring on all perennial streams, 
no matter the size, habitat type, or vegetative cover is attainable 
using the best technology currently available. Additionally, the U.S. 
Environmental Protection Agency authored the ``National Rivers and 
Streams Assessment.'' This assessment explains the minimum requirements 
for monitoring streams and is consistent with our final rule. Further, 
this assessment is scientifically defensible in the 48 conterminous 
states.\425\ As to the necessity of this monitoring, there are long-
standing examples of surface water impacts identified by SMCRA 
regulatory authorities across all coal bearing regions. While many of 
these effects are minor, they also often involve off-site impacts, and 
to minimize these off-site impacts using the best technology currently 
available, we are retaining these requirements. These baseline 
assessments of the biological condition of perennial streams where 
scientifically defensible protocols exist will allow for appropriate 
stream assessment and monitoring and will result in minimization of 
effects to fish, wildlife, and environmental resources consistent with 
the requirements of section 515(b)(24) of SMCRA.\426\ For further 
discussion of using scientifically defensible bioassessment protocols 
when monitoring streams please see the final preamble discussion in 
Sec.  780.19(c)(6).
---------------------------------------------------------------------------

    \424\ See, e.g., S.T. Larned, et al., Emerging concepts in 
temporary-river ecology. Freshwater Biology. pgs. 55, 717-738 
(2010).
    L.A. Beche, et al., Long-term seasonal variation in the 
biological traits of benthic-macroinvertebrates in two 
Mediterranean-climate streams in California, U.S.A. Freshwater 
Biology. pgs. 51: 56-75 (2006).
    A. Boulton and P. Lake. The ecology of two intermittent streams 
in Victoria, Australia III. Temporal changes in faunal composition. 
Freshwater Biology pgs. 27, 123-138 (1992).
    E. Bernhardt and M. Palmer. The environmental costs of 
mountaintop mining valley fill operations for aquatic ecosystems of 
the Central Appalachians. The Year in Ecology and Conservation 
Biology. Ann. N.Y. Acad. Sci. pgs. 39-57 (2011).
    C. Leigh and K. Fritz, Ecological research and management of 
intermittent rivers: An historical review and future directions. 
Freshwater Biology (2015).
    T. Nadeau and M. Cable Rains, Hydrological Connectivity Between 
Headwater Streams and Downstream Waters: How Science Can Inform 
Policy. Journal of the American Water Resources Ass'n, pgs. 43(1): 
118-133 (2007).
    \425\ U.S. Envtl. Prot. Agency. National Rivers and Streams 
Assessment 2013-2014: Field Operations Manual--Wadeable. EPA-841-B-
12-009b. Office of Water Washington, DC (2013), see also, U.S. 
Envtl. Prot. Agency, https://www.epa.gov/wqc/information-bioassessment-and-biocriteria-programs-streams-and-wadeable-rivers 
(last accessed Nov. 1, 2016).
    \426\ 30 U.S.C. 1265(b)(24).
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    As stated in final Sec.  780.19(c)(6)(vii), the permittee must 
adhere to a bioassessment protocol approved by the state or tribal 
agency responsible for preparing the water quality inventory required 
under section 305(b) of the Clean Water Act,\427\ 33 U.S.C. 1315(b), or 
other scientifically-defensible bioassessment protocol accepted by 
agencies responsible for implementing the Clean Water Act. Through 
coordination with the U.S. Environmental Protection Agency, the U.S. 
Army Corps of Engineers, and state Clean Water Act authorities, 
publications and additional information on applicability and region-
specific bioassessment protocols can be provided for SMCRA regulatory 
authorities to establish appropriate biological condition monitoring 
plans consistent with the required use of scientifically-defensible 
bioassessment protocols. For further information on bioassessment 
protocols, please refer to the preamble discussion of paragraphs (vi) 
through (viii) of final Sec.  780.19(c)(6).
---------------------------------------------------------------------------

    \427\ 33 U.S.C. 1315(b).
---------------------------------------------------------------------------

    Many commenters supported the requirement to monitor the effects of 
the mining operation upon the biological condition of intermittent and 
perennial streams, noting that biological monitoring is necessary to 
assess the effects of mining operations on fish, wildlife, and related 
environmental resources as well as to determine whether material damage 
to the hydrological balance outside the permit area is occurring. Other 
commenters opposed monitoring the effects of the mining operation upon 
the biological condition of streams and recommended that we eliminate 
this requirement from the rule. Commenters opposing the biological 
condition monitoring requirement alleged that, because only one sample 
is taken per year, the information gathered will not be helpful in 
determining, in a timely manner, whether corrective actions are 
necessary. While these commenters are correct that this sampling is 
only required annually, additional samples can be taken as long as the 
additional sampling will not deplete the populations of species being 
monitored. Additionally, the information obtained from the biological 
condition monitoring plan should be evaluated alongside the other parts 
of the water monitoring requirements, such as the surface-water and 
groundwater monitoring requirements of paragraphs (a) and (b). Taken 
together, the once-a-year biological condition monitoring and the other 
more frequent monitoring requirements of paragraphs (a) and (b), will 
allow the regulatory authority to have the data necessary to identify 
trends that indicate that an operation is at risk of causing material 
damage to the hydrologic balance outside the permit area. Therefore, we 
are retaining the requirement for biological condition monitoring 
because it is necessary to determine whether material damage to the 
hydrological balance outside the permit area is occurring, as well as 
to assess the effects of mining operations on fish, wildlife, and 
related environmental resources.
    These commenters also asserted that biological condition monitoring 
does not identify the cause of the impacts and could reflect impacts 
not associated with the mining operations, such as logging, farming, 
livestock, irrigation, natural variation, or unusual flow events. We 
agree that in certain instances, such as those listed above, it is 
possible that the biological condition monitoring may show impacts that 
are not directly associated with the mining operations. However, as 
stated above, we intend for data obtained from the biological condition 
monitoring to be evaluated with the data obtained from surface-water 
and groundwater monitoring, not on a stand-alone basis. Evaluation of 
the data resulting from the three types of monitoring will allow the 
regulatory authority to determine if impacts to stream biology are 
related to the mining operation and if corrective action is needed to 
prevent the operation from causing material damage to the hydrological 
balance outside the permit area. This requirement provides applicants 
better protection against potential liability for environmental harm 
because the additional data will make it easier to determine whether 
the impact is a result of mining activities or activities unrelated to 
mining.

[[Page 93189]]

    Several commenters suggested that the biological condition 
monitoring plans in Sec. Sec.  780.23(c) and 784.23(c) should be 
prepared by a qualified ecologist or biologist. Because the 
requirements contained in final paragraph (c) and paragraphs (vi) 
through (viii) of final Sec.  780.19(c)(6) contain detailed 
requirements about what must be monitored and which scientific 
protocols are acceptable, it is not necessary to also have the plans be 
prepared by a qualified ecologist or biologist.
    We made minor clarifying revisions throughout final paragraph (c). 
Specifically, the phrase ``for which baseline biological condition data 
was collected under Sec.  780.19(c)(6)(iv) of this part'' has been 
added to paragraphs (c)(1) and (c)(2)(ii). This addition provides 
greater specificity as to the monitoring locations within the proposed 
permit and adjacent areas that the biological condition monitoring plan 
must include. Additionally, we updated the citation in final paragraph 
(c)(2)(i) to reflect changes we made to final Sec.  780.19.
Final Paragraph (d): Exceptions
    This paragraph lists exceptions to the requirements for monitoring 
groundwater, surface water and the biological condition of streams 
during and after mining. It provides the regulatory authority with the 
flexibility to modify the groundwater and surface water requirements of 
paragraphs (a) and (b) of this section and modify or waive the 
biological condition monitoring plan requirements of paragraph (c) of 
this section. As discussed below, we did not make any changes to this 
section in response to comments.
    One commenter recommended deleting proposed paragraph (d)(1), which 
provides the regulatory authority the discretion to modify groundwater, 
surface water, and biological condition monitoring plan requirements if 
the proposed permit includes only land eligible for remining. This 
commenter expressed concern that this provision could be abused through 
overuse and that biological condition monitoring should be waived only 
when a stream contains no valuable biological community. The commenter 
asserted that biological communities in these remined areas will be 
impacted and that merely conducting a baseline assessment of a stream's 
biological condition would not be sufficient. Many commenters expressed 
concern that, in some instances, pre-SMCRA unreclaimed mines have been 
left undisturbed for so long that the area has naturally revegetated 
and that any mining would re-disturb important plant communities, 
despite the fact that these areas might also contain unreclaimed 
abandoned mine features. We agree that, in some instances, unreclaimed 
areas that have naturally revegetated, may qualify for the exemption 
under final paragraph (d)(1). However, despite naturally revegetating 
and supporting a biological community, these sites are often still 
dangerous because of unreclaimed spoil piles, highwalls, and pits. 
Further, reclamation funds are severely limited and remining is often 
the only viable method of reclaiming previously mined areas, especially 
those that are far away from public roads or are not actively 
discharging acid-mine drainage.
    The exception at final paragraph (d)(1) applies only where the 
permit area consists solely of lands eligible for remining and the 
regulatory authority has determined that a less extensive monitoring 
plan is adequate to monitor the impacts. The applicant would also have 
to comply with final Sec.  785.25. Therefore, the exception cannot be 
invoked for every remining operation. With this exception we are 
attempting to encourage the mining of already disturbed sites, which 
will then be reclaimed in a manner that returns the land to a premining 
state or another appropriate postmining land use. While additional 
disturbances, and the potential for water quality impacts, would occur 
with any mining operation, reclaiming these sites to a more natural 
condition is the best alternative in the long term. This exception 
conforms to section 102(h) of SMCRA,\428\ by promoting the reclamation 
of mined areas left without adequate reclamation prior to the enactment 
of SMCRA. While a small percentage of previously mined areas may have 
naturally revegetated over decades, most of these sites, regardless of 
revegetation, continue to substantially degrade the quality of the 
environment, prevent or damage the beneficial use of land or water 
resources, and endanger the health or safety of the public. For these 
reasons, we are retaining the exception as proposed.
---------------------------------------------------------------------------

    \428\ 30 U.S.C. 1202(h).
---------------------------------------------------------------------------

    Several commenters also recommended that we allow the regulatory 
authority to waive biological condition monitoring requirements in 
other circumstances. Other commenters suggested that we defer to the 
Clean Water Act authority to determine if biological monitoring is 
necessary. In support of this position, these commenters assert, 
without any supporting evidence, that Clean Water Act authorities allow 
large municipal wastewater treatment plants to eliminate biological 
monitoring. We do not agree that the regulatory authority should have 
increased discretion to waive biological condition monitoring. As 
discussed above and in the preamble to the proposed rule,\429\ 
biological monitoring is generally necessary to determine whether 
material damage to the hydrologic balance outside the permit area is 
occurring and to assess the effects of mining operations on fish, 
wildlife, and related environmental resources. The biological condition 
monitoring plan is just one part of the water monitoring requirements 
under 780.23. Other parts of the water monitoring requirements, such as 
the surface water and groundwater monitoring requirements of paragraphs 
(a) and (b), determine whether corrective actions are necessary. Taken 
together, the once-a-year biological condition monitoring and the other 
more frequent monitoring requirements, will allow the regulatory 
authority to have the data necessary to identify trends that indicate 
that an operation is at risk of causing material damage to the 
hydrologic balance outside the permit area. Despite the importance of 
this data, the final rule, at (d)(1) and (d)(2), recognizes that there 
are some limited situations when biological condition monitoring would 
be unnecessary or unlikely to be helpful in detecting material damage 
to the hydrologic balance outside the permit area and the effects of 
mining operations on fish, wildlife, and related environmental 
resources. We do not find any other exceptions necessary or appropriate 
under SMCRA. We also do not agree that deference to a Clean Water Act 
authority is appropriate under this provision as paragraph (d) relates 
to all monitoring, not just the monitoring done pursuant to the Clean 
Water Act. It is the regulatory authority's responsibility to ensure 
that SMCRA's requirements are met, including those related to material 
damage to the hydrologic balance outside the permit area and fish, 
wildlife, and related environmental resources. Finally, municipal 
wastewater treatment plants are not subject the same requirements as 
surface coal mining and reclamation operations and the analogy to these 
facilities is not indicative or representative of SMCRA's requirements.
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    \429\ 80 FR 44436, 44469 (Jul. 27, 2015).

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[[Page 93190]]

Final Paragraph (e): Coordination With Clean Water Act Agencies
    This paragraph is being finalized as proposed with the exception 
that it has been reorganized for clarity. The statement ``make best 
efforts to'' was initially applied only to minimizing differences in 
monitoring locations and reporting requirements and sharing data to the 
extent practicable and consistent with each agency's mission, statutory 
requirements, and implementing regulations. Several commenters noted 
that coordinating with Clean Water Act agencies in a timely manner can 
be difficult if the regulatory authority does not receive responses 
from the Clean Water Act agencies. We agree and, in response to this 
comment, moved the statement ``make best efforts to'' to the first 
sentence of the paragraph, revising the section to read that the SMCRA 
regulatory authority must make its best effort to consult in a timely 
manner with the agencies responsible for issuing permits, 
authorizations, and certifications under the Clean Water Act, minimize 
differences in monitoring locations and reporting requirements, and 
share data to the extent practicable and consistent with each agency's 
mission, statutory requirements, and implementing regulations.
Section 780.24: What requirements apply to the postmining land use?
    One commenter opposed adoption of proposed Sec.  780.24 because, 
according to the commenter, previous Sec.  780.24 is sufficient. The 
commenter did not elaborate further. We disagree for the reasons 
discussed in the preamble to the proposed rule.\430\
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    \430\ 80 FR 44436, 44507-44508 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Another commenter alleged that the proposed rule confuses land use 
and land capability. We disagree. Whenever sections 508(a)(2) and (3) 
and 515(b)(2) of SMCRA \431\ use the term ``capable'' or 
``capability,'' they do so in the context of land uses, as do our 
regulations.
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    \431\ 30 U.S.C. 1258(a)(2) and (3) and 1265(b)(2).
---------------------------------------------------------------------------

    The commenter also alleged that the preamble to proposed Sec.  
780.24 assumes that a change to a higher or better land use would be a 
change to a higher capability. According to the commenter, a change to 
a higher or better postmining land use may reduce the capability of the 
land to support other uses that it could previously support. We agree 
that implementation of certain postmining land uses would reduce the 
capability of the land to support other uses. For example, construction 
of industrial or commercial facilities as part of implementation of a 
commercial or industrial postmining land use would reduce the 
capability of the land to support fish and wildlife habitat or 
cropland. However, this principle applies regardless of whether a 
higher or better use is involved. Our rules do not seek to prevent this 
outcome. Instead, they require that the permittee reclaim the land to a 
condition in which it is capable of supporting the uses that the land 
was capable of supporting before any mining. If the land was capable of 
supporting both industrial and cropland uses prior to any mining, then 
the permittee must reclaim the mined land to a condition capable of 
supporting both industrial and cropland uses after mining and 
reclamation. Nothing in our rules prohibits implementation of the 
industrial land use before bond release, even if doing so reduces or 
effectively eliminates the site's capability to support cropland. Our 
rules, like section 515(b)(2) of SMCRA,\432\ merely require that the 
land be reclaimed to its premining capability until implementation of 
the postmining land use, which is not the responsibility of the 
permittee. Thus, our rules operate as a protective measure to ensure 
restoration of site capability in the event that the approved 
postmining land use is not implemented.
---------------------------------------------------------------------------

    \432\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    A few commenters alleged that the proposed rule would greatly limit 
postmining land use options and severely complicate the ability to 
obtain approval of higher or better uses. According to the commenters, 
the proposed rule thus would place an undue burden on the landowner and 
restrict landowner rights. We do not agree. In reality, the final rule 
would ease the requirements for obtaining approval of a proposed 
postmining land use that differs from the actual premining use, 
provided that the proposed use is a use that the land was capable of 
supporting prior to any mining. Proposed and final paragraphs 
(b)(1)(iii)(E) through (G) add three new demonstration and finding 
requirements for approval of alternative postmining land uses; i.e., 
higher or better uses that preclude restoration of the land to a 
condition capable of supporting the uses that it was capable of 
supporting before any mining. Those additional provisions are intended 
to ensure that restoration of the land to a condition capable of 
supporting the alternative postmining land use would not result in 
increased flooding on adjoining properties, preclude attainment of 
designated uses of surface water outside the permit area, or preclude 
actual premining uses of surface water outside the permit area. The 
latter two criteria are elements of the definition of ``material damage 
to the hydrologic balance outside the permit area in Sec.  701.5, while 
the first criterion is intended to protect downstream properties from 
flood damage, consistent with section 102(a) of SMCRA,\433\ which 
provides that one of the purposes of SMCRA is to protect society and 
the environment from the adverse effects of surface coal mining 
operations. None of the three new criteria place an undue burden on the 
landowner or unduly restrict landowner rights.
---------------------------------------------------------------------------

    \433\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

    The same commenters further alleged that adoption of the proposed 
rule would place a burden on state regulatory authorities by requiring 
significantly more time for review and inspection. We do not agree. As 
discussed in the preamble to the proposed rule,\434\ adoption of this 
rule will reduce the burden on both permit applicants and regulatory 
authorities by eliminating the requirement in our previous rules to 
process all proposed postmining land uses that differ from the 
premining use or uses as alternative postmining land uses. Under the 
proposed and final rules, the alternative postmining land use review 
process does not apply if the proposed postmining land use is a use 
that the site was capable of supporting before any mining, even if that 
land use is not that same as the current premining land use. The final 
rule includes no additional regulatory authority review and inspection 
requirements for this type of land use change. It is true that both 
proposed and final paragraphs (b)(1)(iii)(E) through (G) add three new 
demonstration and finding requirements for approval of alternative 
postmining land uses (higher or better uses). However, we anticipate 
that the additional burden associated with those demonstrations and 
findings will be more than offset by a reduction in the number of 
alternative postmining land use determinations required under the final 
rule compared to the previous rules.
---------------------------------------------------------------------------

    \434\ See 80 FR 44436, 44508-44509 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): What postmining land use information must my 
application contain?
    Proposed paragraph (a)(2) would require that each permit 
application include a discussion of the utility and capability of the 
reclaimed land to support a variety of other uses, including the uses 
that the land was capable of supporting before any mining, as 
identified under Sec.  779.22, regardless of the proposed postmining

[[Page 93191]]

land use. One commenter expressed concern that the proposed rule would 
result in an extensive list of current uses. Proposed paragraph (a)(2) 
would require more than a list of current uses--it would require a 
discussion of the utility and capability of the reclaimed land to 
support both those uses and the other uses that the land was capable of 
supporting before any mining. A separate regulation at Sec.  
779.22(a)(1) requires only a list of existing uses, consistent with 
section 508(a)(2)(A) of SMCRA,\435\ which provides that the application 
also must identify ``the uses existing at the time of application.'' To 
the extent that the commenter may have been concerned about a 
potentially unlimited suite of land uses, we note that our intent is to 
require identification and discussion only of those land use categories 
set forth in the definition of ``land use'' in Sec.  701.5.
---------------------------------------------------------------------------

    \435\ 30 U.S.C. 1258(a)(2)(A).
---------------------------------------------------------------------------

    The commenter further alleged that the proposed rule does not 
account for historical land use practices and capabilities resulting 
from agricultural practices. According to the commenter, the conversion 
of prairies to cropland and the installation of drainage ditches and 
drain tiles have altered the capability of the affected lands to 
support certain land uses. Nothing in the proposed or final rules would 
have the effect alleged by the commenter. Both proposed and final Sec.  
780.24(a)(2) require identification and discussion of the uses that the 
land was capable of supporting before any mining not at some time in 
the distant past before the advent of agriculture. It does not matter 
whether that capability is naturally occurring or the result of 
agriculture drainage projects or other human intervention.
    The commenter also alleged that the proposed rule differs from the 
statutory provision that it is intended to implement because section 
508(a)(2)(B) of SMCRA \436\ focuses on the capability of the land 
whereas the proposed rule changes the emphasis to the uses that the 
land was capable of supporting before any mining. According to the 
commenter, this change in emphasis is unnecessary and will not result 
in provision of any useful information.
---------------------------------------------------------------------------

    \436\ 30 U.S.C. 1258(a)(2)(B).
---------------------------------------------------------------------------

    We do not agree. Section 508(a)(3) of SMCRA \437\ provides the 
primary statutory authority for Sec.  780.24(a)(2), not, as the 
commenter alleges, section 508(a)(2)(B) of SMCRA. Sections 508(a) and 
(a)(3) of SMCRA require that the reclamation plan submitted as part of 
the permit application ``include, in the degree of detail necessary to 
demonstrate that reclamation required by the State or Federal program 
can be accomplished,'' a statement of ``the use which is proposed to be 
made of the land following reclamation, including a discussion of the 
utility and capacity of the reclaimed land to support a variety of 
alternative uses.'' In this context, the term ``alternative uses'' 
refers to the uses that the land was capable of supporting before any 
mining. Section 515(b)(2) of SMCRA \438\ requires that surface coal 
mining and reclamation operations ``restore the land affected to a 
condition capable of supporting the uses which it was capable of 
supporting prior to any mining, or higher or better uses of which there 
is reasonably likelihood.'' The information required by proposed 
paragraph (a)(2) is critical ``to demonstrate that reclamation required 
by the state or federal program can be accomplished,'' as required by 
section 508(a) of SMCRA, because it is needed to determine whether the 
proposed operation has been designed to comply with the performance 
standard in section 515(b)(2) of SMCRA.
---------------------------------------------------------------------------

    \437\ 30 U.S.C. 1258(a)(3).
    \438\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    However, in response to these and other comments concerned about 
the potential burden on regulatory authorities and relevance to 
permitting decisions, we have made two modifications to proposed 
paragraph (a)(2). First, final rule Sec.  780.24(a)(2) excludes prime 
farmland historically used as cropland. Under existing Sec.  
785.17(e)(1), the approved postmining land use for these prime 
farmlands must be cropland, so there is no discretion available in 
determining an appropriate postmining land use. Furthermore, lands 
reclaimed in accordance with prime farmland standards will be capable 
of supporting almost all other potential land uses by default. Second, 
we have limited the scope of final paragraph (a)(2) to include only the 
proposed postmining land use and the variety of uses that the land was 
capable of supporting before any mining. The proposed rule implied that 
the applicant had to discuss other uses in addition to these. We agree 
that information concerning any other potential postmining land use 
would not be relevant to the decision making process.
    Proposed paragraph (a)(4)(i) would require that each permit 
application include a copy of the comments concerning the proposed 
postmining land use that the applicant receives from the legal or 
equitable owner of record of the land surface. One commenter 
erroneously described this provision as a requirement for the 
regulatory authority to consult with the landowner on all proposed 
postmining land uses. The commenter did not indicate whether it thought 
that such consultation should be required, as it is for approval of 
higher or better uses. However, section 508(a)(3) of SMCRA requires 
only that the application include ``the comments of any owner of the 
surface.'' Proposed paragraph (a)(4)(i) is consistent with this 
statutory requirement and we are adopting it as final without change. 
The fact that SMCRA requires that the landowner have an opportunity to 
comment on the proposed postmining land use, however, implies that the 
regulatory authority must consider those comments, to the extent 
appropriate, when deciding whether to approve the proposed postmining 
land use.
    Proposed paragraph (a)(4)(ii) would require that each permit 
application include a copy of the comments concerning the proposed 
postmining land use that the applicant receives from state and local 
government agencies that would have to initiate, implement, approve, or 
authorize the proposed use of the land following reclamation. One 
commenter urged us not to apply this requirement when the premining and 
postmining land uses are the same. The commenter further alleged that 
the permit applicant would be unable to meet this requirement in states 
and localities that do not have planning or zoning entities.
    Section 508(a)(3) of SMCRA requires that the application include 
the comments of ``State and local governments or agencies thereof which 
would have to initiate, implement, approve or authorize the proposed 
use of the land following reclamation.'' There is no exception for 
situations in which the premining and postmining land uses are 
identical. In addition, there is no guarantee that state and local 
governments and agencies would not have a role in initiation, 
implementation, approval, or authorization of the postmining land use 
in those circumstances. Therefore, we are adopting proposed paragraph 
(a)(4)(ii) without change. However, nothing in that paragraph compels 
those governments or agencies to submit comments. Nor does that 
paragraph prohibit approval of the proposed postmining land use in the 
absence of comments from those governments or agencies. Consequently, 
the commenter's statement that the applicant would be unable to meet 
this requirement in states and localities that do not have planning or 
zoning entities has no basis.

[[Page 93192]]

    Numerous commenters opposed adoption of proposed paragraph 
(a)(6)(ii), which would have required that the permit applicant 
disclose any monetary compensation provided to the landowner in 
exchange for the landowner's agreement to an alternative postmining 
land use. Many commenters alleged that we have no authority to require 
disclosure of private contracts, with one commenter asserting that it 
would require the disclosure of proprietary and confidential business 
information. Other commenters asserted that the provision would be 
impossible to enforce. Some commenters opined that the required 
information is not relevant to whether the postmining land use change 
is likely to be achieved, nor is it information that the regulatory 
authority could use in reaching a decision on a request for approval of 
an alternative postmining land use. One commenter erroneously asserted 
that this provision would act as a prohibition on compensation and 
would illegally require the regulatory authority to adjudicate contract 
disputes. Another commenter urged us to respect the ability of 
landowners to determine how best to use their property after mining and 
to avoid unnecessary regulation of private real estate dealings where 
such regulation would provide no significant environmental or land use 
planning benefit.
    Another commenter alleged that the proposed rule would not be 
effective in addressing the core issue, which is the failure of 
regulatory authorities to make an independent and fact-based 
determination that the proposed change in land use meets statutory 
requirements. According to the commenter, compensation for landowner 
agreement to a postmining land use change could easily be disguised as 
something else and there is no reason to believe that disclosure of 
compensation would improve the quality of the decision-making process. 
Therefore, the commenter recommended that the monetary disclosure 
provision be deleted and replaced with a provision specifying that 
landowner consent alone is insufficient basis for approval of a 
proposed alternative postmining land use without further demonstrations 
of compliance with the criteria for approval of an alternative 
postmining land use.
    The commenter explained that, in her experience, some permittees 
have made payments or used other means to persuade landowners to concur 
with alternative postmining land uses that are not higher or better 
uses or for which there is no intent to implement. According to the 
commenter, under the previous rules, landowner consent was often given 
for uses that were neither higher nor better, that were improbable or 
impractical, and that sometimes were even undesirable for the 
landowner. The commenter further stated that regulators rely on 
landowner consent to an excessive degree to document whether the 
proposed postmining land use meets the statutory standards for approval 
as a higher or better use. The commenter cites a decision of 
Administrative Law Judge Harvey Sweitzer in Farrell Cooper Mining 
Company v. OSMRE, Docket No. 2013-1-R, September 30, 2015, as providing 
insight into the legal and economic forces that hinder proper land 
restoration following mining. According to the commenter, mining can 
alter landforms for the better, but the economics of mining also can 
push both permittees and surface owners to overestimate the need for, 
and utility of, such structures, resulting in the creation of 
impoundments too large to ever fill with water, losses of pastureland, 
retention of mining-related structures for industrial uses never 
realized, and creation of flat land in inaccessible areas where there 
is no need to such land. The commenter further stated that, as in the 
Farrell-Cooper decision, she had repeatedly observed legal instruments 
in which coal companies essentially contract upfront with surface 
owners to mandate their acquiescence in any future changes to landforms 
or land use that the permittee may seek to permit. The commenter also 
cited the Farrell-Cooper decision as documenting the failure of 
regulators to enforce their laws and regulations and make independent 
and factually supported findings because of deferral to landowner 
judgment.
    After considering these comments, we decided to adopt the approach 
recommended by the last comment discussed above. Specifically, we are 
not adopting proposed paragraph (a)(6)(ii). Instead, we revised 
proposed paragraph (b)(2)(ii) to include language clarifying that 
landowner consent alone is an insufficient basis for a regulatory 
authority finding that the applicant or permittee has made the 
demonstration needed for approval of a proposed alternative postmining 
land use. We agree with the commenter that this approach should be more 
effective in ensuring that both applicants and regulatory authorities 
consider all the criteria in paragraphs (b)(1)(i) through (iii) for 
approval of alternative postmining land uses rather than deferring to 
the professed wishes of the landowner. We also agree with the commenter 
that, while the regulatory authority must take the preferences of 
landowners into consideration when evaluating a proposed postmining 
land use, landowner consent is not probative of whether a proposed land 
use meets the criteria for approval.
Final Paragraph (b): What requirements apply to the approval of 
alternative postmining land uses?
    One commenter asserted that we should delete proposed paragraph 
(b)(1) because the preamble provides only anecdotal evidence to support 
the proposition that the current regulations are insufficient to 
reliably achieve proposed higher or better land uses. However, the 
commenter only provided arguments concerning paragraph (b)(1)(i), so we 
interpret the comment as being directed at only that subparagraph. 
Proposed paragraph (b)(1)(i) would require that the applicant 
demonstrate that there is a reasonable likelihood that a proposed 
alternative postmining land use will be achieved after mining and 
reclamation, as documented by, for example, real estate and 
construction contracts, plans for installation of any necessary 
infrastructure, procurement of any necessary zoning approvals, 
landowner commitments, economic forecasts, and studies by land use 
planning agencies. According to the commenter, it is impractical to 
expect long-term mining operations to present evidence such as real 
estate and construction contracts to support the proposition that the 
mined area will in fact achieve the proposed postmining land use years 
prior to the completion of reclamation activities.
    Moreover, our regulations do not require attainment of proposed 
alternative postmining land uses (higher or better uses) as the 
commenter appears to imply, but, consistent with the underlying 
statutory provision, they do require that the applicant demonstrate, 
and the regulatory authority find, that there is a reasonable 
likelihood that the proposed higher or better use will be achieved. 
Section 515(b)(2) of SMCRA \439\ requires that the permittee restore 
land affected by mining operations to a condition capable of supporting 
either the uses that it was capable of supporting prior to any mining 
or ``higher or better uses of which there is reasonable likelihood.'' 
Our proposed and final rules give fuller effect than our previous rules 
to this statutory provision by creating a clearer distinction between 
requirements applicable to proposed higher or better postmining land 
uses and requirements

[[Page 93193]]

applicable to proposed postmining land uses consisting of one or more 
of the uses that the site was capable of supporting prior to any 
mining.
---------------------------------------------------------------------------

    \439\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Our rules always have required a demonstration and finding that 
there is a reasonable likelihood of achieving a proposed alternative 
postmining land use, as does the statute. Proposed paragraph (b)(1)(i) 
differs from the previous rule only in that the proposed rule provides 
examples of how that demonstration and finding may be made. The list is 
not exhaustive, but it provides guidance on the type of documentation 
needed to make a good-faith demonstration and finding. If a permit 
applicant is unable to provide documentation of this nature, then there 
is no basis upon which the regulatory authority can make a finding that 
there is a reasonable likelihood of achieving the proposed postmining 
use, as the commenter implicitly acknowledges. When there is 
uncertainty about the reasonable likelihood of achieving a higher or 
better use, the applicant should propose a different postmining land 
use, one that the land was capable of supporting before any mining. If, 
at a later date, implementation of a higher or better use becomes more 
likely, the permittee may submit a permit revision application to 
change the postmining land use.
    The commenter also questioned the ability of regulatory authorities 
to evaluate the likelihood that real estate and construction contracts 
will ensure implementation of the postmining land use. However, the 
commenter provided no explanation of why this would be the case and we 
have no reason to believe that regulatory authorities lack this 
capability.
    Final paragraph (b)(1) differs slightly from proposed paragraph 
(b)(1) in that we replaced the phrase ``use or uses'' with ``uses'' for 
consistency with paragraph (a) and to emphasize that the default 
requirement is to restore the site to a condition in which it is 
capable of supporting the uses that it was capable of supporting before 
mining, not just the single use that existed prior to mining. The 
revised language is consistent with section 515(b)(2) of SMCRA,\440\ 
which requires that the land be restored ``to a condition capable of 
supporting the uses which it was capable of supporting prior to any 
mining.''
---------------------------------------------------------------------------

    \440\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    We revised proposed paragraph (b)(1)(iii)(D) by adding the word 
``tribal'' to the phrase ``Federal, State, or local law'' found in 
section 515(b)(2) of SMCRA. We consider this revision to be a 
clarification rather than a substantive change because we have always 
considered tribal law to be included in the statutory phrase.
    We revised proposed paragraph (b)(1)(iii)(E) to refer to changes in 
the size or frequency of peak flows that would cause an increase in 
flooding rather than an increase in damage from flooding as in the 
proposed rule. We made this change because determination of whether 
there would be an increase in flooding is easier and more feasible than 
a determination of whether there would be an increase in damage from 
flooding. The latter standard would require projection of future 
development downstream of the proposed permit area, which could be 
difficult and speculative.
    Final paragraphs (b)(1)(iii)(F) and (G) differ from their 
counterparts in the proposed rule in that we removed references to 
reasonably foreseeable uses of surface water and groundwater. The final 
rule no longer includes the term ``reasonably foreseeable uses'' in 
contexts other than protection of reasonably foreseeable surface land 
uses from the adverse impacts of subsidence. Our reasons for deletion 
of this term are twofold. First, the term appears in SMCRA only in 
section 516(b)(1), which requires that operators of underground mines 
adopt subsidence control measures to, among other things, maintain the 
value and reasonably foreseeable use of surface lands. Sections 717(b) 
and 720(a)(2) of SMCRA separately protect certain water uses. Second, 
numerous commenters opposed inclusion of the term ``reasonably 
foreseeable uses'' on the basis that it is too subjective, difficult to 
determine, and open to widely varying interpretations, which could 
result in inconsistent application throughout the coalfields.
    Final paragraphs (b)(1)(iii)(F) and (G) also differ from their 
counterparts in the proposed rule in that we clarified that these 
paragraphs apply only outside the permit area, consistent with section 
510(b)(3) of SMCRA,\441\ which applies the prohibition on material 
damage to the hydrologic balance only outside the permit area. We also 
removed all references to groundwater because these paragraphs pertain 
only to surface flows. In addition, we revised these paragraphs to 
track more closely the language concerning designated uses of surface 
water under the Clean Water Act in our definition of ``material damage 
to the hydrologic balance outside the permit area'' in Sec.  701.5. 
Finally, in response to comments from the U.S. Environmental Protection 
Agency, we replaced the term ``existing'' when referring to uses of 
surface water with ``any actual use of surface water outside the permit 
area before mining.'' This change is intended to avoid any confusion 
with the term ``existing uses'' under the regulations implementing the 
Clean Water Act.
---------------------------------------------------------------------------

    \441\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter expressed concern that proposed paragraph 
(b)(1)(iii)(F) could be an issue in the arid Southwest when the 
operation includes the construction of permanent impoundments that do 
not discharge. According to the commenter, the rule could be 
interpreted to mean that non-discharging impoundments are precluding 
downstream reaches from attaining their designated use even though the 
immediate downstream reaches are ephemeral. This situation could exist 
only if the runoff from a mine comprises a critical element of the flow 
necessary to support a designated use of surface water outside the 
permit area under section 303(c) of the Clean Water Act.\442\ We do not 
anticipate that such a situation would arise, given the infrequency and 
ephemeral nature of surface runoff in arid areas.
---------------------------------------------------------------------------

    \442\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    Another commenter stated that proposed paragraph (b)(2)(i) 
requiring the regulatory authority to consult with ``the landowner or 
the land management agency having jurisdiction over the lands to which 
the use would apply'' is vague and unnecessary because it does not 
explain what specifically the regulatory authority is to seek 
consultation on. The commenter opines that the regulatory authority 
only needs to know that the landowner has consented to the land use 
change. Further, the commenter states that our previous regulations 
require that consent be provided in writing and thus, the proposed 
paragraph is unnecessary. We disagree. In our experience landowners 
frequently discuss significant concerns about alternate postmining land 
uses when engaged by the regulatory authority. For this reason, 
consulting with the landowner is essential, particularly when assessing 
the ``reasonable likelihood'' that a change in land use will occur. 
Therefore, we are adopting this paragraph as proposed.
Final Paragraph (d): What restrictions apply to the retention of 
mining-related structures?
    Paragraph (d) establishes restrictions on the retention of mining-
related structures, other than impoundments and roads, for potential 
future use in support of the postmining land use. One

[[Page 93194]]

commenter asserted that we should not adopt proposed paragraph (d) 
because adoption is likely to lead to economic waste when structures 
that could have been utilized by successive landowners or tenants are 
torn down during reclamation. We find that the outcome posited by the 
commenter is unlikely to occur. Structures that are not used for 
postmining land use purposes are unlikely to be maintained by current 
or future landowners. As such, they rapidly become eyesores and 
attractive nuisances. Unused structures also prevent restoration of the 
land upon which they are sited to a condition capable of supporting the 
uses that the land was capable of supporting before any mining, as 
required by section 515(b)(2) of SMCRA. Therefore, we are adopting 
paragraph (d) as proposed, with the modifications discussed below.
    One commenter opposed the provisions in proposed paragraphs (d)(2) 
and (3) that effectively require that the land upon which a structure 
is sited be revegetated with native vegetation if the structure is 
removed because of a failure to implement the approved postmining land 
use during the revegetation responsibility period. According to the 
commenter, the land from which the structure was removed could be used 
for cropland or in some other manner that would not warrant planting of 
native vegetation. The commenter also noted that planting with native 
vegetation may not be consistent with the surface owner's land use 
intentions.
    Surface owner intentions are an important consideration, but they 
are not the exclusive criterion for selection of the species planted on 
land disturbed by mining operations. Section 515(b)(19) of SMCRA \443\ 
requires that lands disturbed by surface coal mining operations be 
revegetated with native species unless introduced species are desirable 
and necessary to achieve the postmining land use. Section 515(b)(20) of 
SMCRA \444\ provides an exception to that requirement for sites with a 
long-term, intensive agricultural postmining land use.
---------------------------------------------------------------------------

    \443\ 30 U.S.C. 1265(b)(19).
    \444\ 30 U.S.C. 1265(b)(20).
---------------------------------------------------------------------------

    However, we determined that the proposed rule's revegetation 
requirement was not fully in accord with the underlying statutory 
provisions discussed above because it did not clearly provide for the 
exceptions authorized by the statute. Therefore, in final 30 CFR 
780.24(d)(2) and (3), we are replacing the phrase ``establishing native 
vegetation in accordance with Sec.  816.111 of this chapter'' in the 
proposed rule with ``revegetating the site in accordance with the 
revegetation plan approved under Sec.  780.12(g) of this part for the 
permit area surrounding the site upon which the structure was 
previously located.'' Section 780.12(g) includes the exceptions allowed 
under paragraphs (b)(19) and (20) of SMCRA.
    One commenter expressed concern that proposed paragraph (d)(3) may 
not allow buildings left after reclamation to be sold. Nothing in the 
proposed or final rules would prohibit sale of a building. If the sale 
occurs before expiration of the revegetation responsibility period and 
the building continues to be used in support of the postmining land 
use, the building may remain on site. If the sale occurs before 
expiration of the revegetation responsibility period and the building 
is no longer used in support of the postmining land use, but is being 
used for some other purpose, the permittee may apply for a change in 
postmining land use for the land containing the building. If the sale 
occurs after final bond release for the land upon the building is 
sited, the sale and use of the building are no longer a concern under 
SMCRA because the land is no longer considered to be the site of a 
surface coal mining and reclamation operations subject to jurisdiction 
under SMCRA. Under all other circumstances, the buyer must remove the 
building unless it is used in support of the approved postmining land 
use.
Final Paragraph (e): What special provisions apply to previously mined 
areas?
    Several commenters noted that proposed paragraph (e) contained an 
erroneous cross-reference to 30 CFR 780.24(b))(1)(iv), which does not 
exist. One commenter alleged that adoption of proposed paragraph (e) 
without correction of the cross-reference would have the effect of 
prohibiting the regulatory authority from approving any alternative 
postmining land uses on previously mined land. The commenter also 
asserted that adoption of the proposed requirement for compliance with 
proposed paragraph (a) would create a significant disincentive to 
remining previously mined land because paragraph (a) requires 
restoration of the land to a condition in which it is capable of 
supporting the uses that it was capable of supporting before any 
mining. According to the commenter, compliance with this requirement is 
impossible if topsoil and subsoil was not salvaged prior to the initial 
mining.
    After evaluating these comments, we find that the commenters are 
correct. In addition, our review disclosed that the language of 
proposed paragraph (e) did not match the description of that paragraph 
in the preamble to the proposed rule. The preamble discussion 
accurately describes our intent, whereas the actual language of the 
proviso in proposed paragraph (e) does not. Therefore, we are not 
adopting the language of paragraph (e) set forth in the proposed rule. 
Instead, the language of paragraph (e) that we are adopting as part of 
this final rule is consistent with the description and discussion in 
the preamble to proposed paragraph (e).\445\ Specifically, we are 
replacing the phrase ``provided that you comply with paragraphs (a) and 
(b) of this section'' in the proposed rule with ``provided that 
restoration of the land to that capability does not require disturbance 
of land previously unaffected by mining.'' Final paragraph (e) does not 
include the limitations that would lead to the outcomes described by 
the commenter. It will not create a disincentive for remining.
---------------------------------------------------------------------------

    \445\ 80 FR 44436, 44510, 44608 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 780.25: What information must I provide for siltation 
structures, impoundments, and refuse piles?
    Section 780.25 as proposed, provides for safety enhancements 
related to siltation structures, impoundments, and refuse piles.\446\ 
We received a general comment supporting the proposed rule, 
particularly those related to safety enhancements, such as the planning 
for the stabilization of siltation structures, impoundments, and refuse 
piles. As discussed below, some commenters also suggested improvements. 
After evaluating all the comments, we made several modifications 
resulting in a final rule that addresses the concerns of commenters and 
improves the clarity of Sec.  780.25.
---------------------------------------------------------------------------

    \446\ 80 FR 44436, 44511-44513 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): How do I determine the hazard potential of a 
proposed impoundment?
    For the purposes of clarity and to be consistent with other bureaus 
within the Department of the Interior, final paragraph (a) includes a 
table representing a simplified process of hazard classification. In 
response to the proposed rule, a commenter considered our reliance upon 
the U.S. Department of Agriculture Natural Resource Conservation 
Service's Technical Release No. 60, misplaced. The commenter noted 
that, within the Department of the Interior, the Technical Release No. 
60 has been superseded by the Federal Emergency Management Agency's 
hazard

[[Page 93195]]

classifications. There is little difference between the two 
classification systems, but to be consistent, we are incorporating the 
classification table in the Federal Emergency Management Agency's 
Federal Guidelines for Dam Safety, Hazard Potential Classification 
System for Dams in the final rule. The table characterizes the hazard 
potential of a dam as ``low,'' ``significant,'' or ``high.'' In 
addition, the nature of the hazard is considered--with the primary 
consideration being the potential for human mortality. Additionally, 
because SMCRA mandates protection of the environment as well as the 
public, the potential for environmental or ``lifeline losses'' is also 
considered. ``Lifeline losses'' refer to disruption of important public 
utilities, some of which could result in risk to the public. For 
example, disruption of highways, waterlines, or communications could 
interfere with police, fire, or ambulance services. Major railroads and 
highways are included in this category due to the impact of their 
disruption on large numbers of people. A feature of the system is that 
it is used only for hazard classification, and each agency or bureau is 
able to impose design, operation, and maintenance criteria that meet 
their specific needs. For example, within final paragraph (a), we are 
requiring applicants to use the Federal Emergency Management Agency 
hazard classification system, but we impose the additional requirements 
detailed within the remainder of Sec.  780.25.
Final Paragraph (b): How must I prepare the general plan for proposed 
siltation structures, impoundments, and refuse piles?
    As a result of the adoption of the hazard potential classification 
system for dams within paragraph (a) of the final rule, we have 
relocated the explanation of general plan requirements for proposed 
siltation structures, impoundments, and refuse piles, discussed at 
paragraph (a) within the proposed rule, to paragraph (b) of the final 
rule.
    Some commenters raised concerns that this section blurs the 
distinction between typical sediment structures and structures that 
satisfy the Mine Safety and Health Administration criteria and imposes 
unreasonable evaluation and design criteria on sediment structures. 
Specifically, these commenters questioned the requirement for 
geotechnical evaluation, including consideration of subsidence, on a 
small sediment structure designed to typically contain little or no 
water.
    We concur that extensive geotechnical evaluations as proposed in 
paragraph (a)(1)(iv) and now found in final paragraph (b)(4)(i), are 
not necessary for small structures in areas with 26.0 inches or less of 
average annual precipitation or for siltation structures. This is 
because such structures cannot impound sufficient water to pose a 
significant risk in the event of failure. Therefore, we have altered 
the final rule to grant exemptions for small structures in areas with 
less than 26.0 inches of annual precipitation, found at paragraph 
(b)(4)(ii)(A), and at paragraph (b)(4)(ii)(B), for siltation 
structures; as long as the structures do not meet the criteria in Sec.  
77.216(a) of this title \447\ or have a ``significant'' or ``high'' 
hazard potential as detailed in the hazard potential classification 
table within paragraph (a) of this section.
---------------------------------------------------------------------------

    \447\ 30 CFR 77.216(a), Water, sediment, slurry impoundments and 
impoundment structures; general. Mine Safety and Health Admin., 
Dep't. of Labor.
---------------------------------------------------------------------------

    Some commenters also claimed that the requirements in the proposed 
rule at paragraph (a)(1)(iv), now paragraph (b)(5)(i) in the final 
rule, are focused on regional issues, such as breakthroughs into 
underground workings and refuse piles, which are more common in the 
eastern portion of nation. These commenters asserted that this 
provision requires a large amount of additional and unnecessary design, 
permitting, and construction work for the small impoundments typical in 
western mines that generally pose little risk of failure or danger to 
the public. Similar to our discussion of the exemptions within final 
paragraph (b)(4), we concur that extensive evaluations of 
breakthroughs, as required in final paragraph (b)(5)(i) would not be 
necessary for small structures in areas with 26.0 inches or less of 
average annual precipitation or for siltation structures. Again, this 
is because such structures cannot impound sufficient water to pose a 
significant risk in the event of failure. We have provided exemptions 
in paragraphs (b)(5)(ii)(A) for structures in areas with less than 26.0 
inches of annual precipitation, and (b)(5)(ii)(B) for siltation 
structures; as long as the structures do not meet the criteria in 30 
CFR 77.216(a) or have a ``significant'' or ``high'' hazard potential 
under paragraph (a) of this section.
    The same commenter that generally supported the safety enhancements 
to Sec.  780.25 also specifically supported the inclusion of the 
requirement within the proposed rule at paragraph (a)(1)(v), now 
paragraph(b)(5)(i), that the general plan for each impoundment include 
an analysis of the potential for the impoundment to drain into 
subjacent underground mine workings and an analysis of the impacts of 
such drainage. We agree that prudent planning is appropriate; 
therefore, we are incorporating this requirement, as proposed, into the 
final rule.
    In paragraph (a)(1)(vi)(A) of the proposed rule, we included a 
requirement that the plan must include ``a certification statement that 
includes a schedule setting forth the dates when any detailed plans for 
structures that are not submitted with the general plan will be 
submitted to the regulatory authority.'' We have modified this 
requirement and reclassified it as paragraph (b)(6) in the final rule. 
We have removed the ``certification statement'' but required the plan 
include a schedule setting forth the dates when detailed design plans 
will be submitted to the regulatory authority.
Final Paragraph (c): How must I prepare the detailed design plan for 
proposed siltation structures, impoundments, and refuse piles?
    Proposed paragraph (a)(2) applied to structures that meet the 
criteria for ``Significant'' or ``High Hazard'' classification in 
accordance with the U.S. Department of Agriculture Natural Resources 
Conservation Service Technical Release 60 \448\ and the criteria of the 
Mine Safety and Health Administration's regulation at 30 CFR 77.216(a). 
Proposed paragraph (a)(3) applied to ``other structures,'' or 
structures not meeting these criteria.
---------------------------------------------------------------------------

    \448\ U.S. Dep't. of Agric., Natural Resources Conservation 
Serv., Earth Dams and Reservoirs, Technical Release No. 60 (July 
2005).
---------------------------------------------------------------------------

    We have reclassified proposed paragraphs (a)(2), relating to design 
plans for high hazard dams, significant hazard dams, and certain 
impounding structures to paragraph (c)(1), and (a)(3), relating to 
other structures, to paragraph (c)(2) within the final rule. 
Additionally, we have made clarifications and modifications to these 
sections. We have renumbered the paragraphs for clarity and to 
emphasize the distinctions between the two classifications.
    In addition to the reclassification of proposed rule (a)(2) to 
(c)(1) in the final rule, we have removed the references to the U.S. 
Department of Agriculture's Technical Release 60, hazard classification 
procedure from final paragraph (c)(1) and revised it to apply to 
structures that would have a significant or high hazard potential under 
paragraph (a) of final rule and, similar to the proposed rule, would 
satisfy the criteria of the Mine Safety and Health Administration's 
regulation at 30 CFR 77.216(a).

[[Page 93196]]

    Paragraphs (c)(1) and (c)(2) of the final rule both include 
requirements related to who may prepare plans. We have moved these from 
``general requirements'' and provided separate paragraphs for each to 
emphasize the distinctions between the levels of associated risk and 
design requirements. The structures within paragraph (c)(1) of the 
final rule are critical structures, the failure of which could result 
in significant loss of human life. Therefore, we have made the design 
plans for these structures subject to more stringent requirements, 
including that they be prepared by or under the direction of a 
registered professional engineer; or for structures covered in 
paragraph (c)(2), a licensed land surveyor. However, we note that all 
coal mine waste structures to which Sec. Sec.  816.81 through 816.84 
apply, must be designed by a registered, professional engineer even if 
such structures do not meet the hazard classification criteria of 
(c)(1). In addition, we are requiring that the engineer or land 
surveyor certify the plans. The engineer or land surveyor must have a 
documented history of experience with dams and impoundments. This is a 
new requirement; however, due to the potential for loss of life in the 
event of failure it is important that designers of these structures 
have, in addition to appropriate credentials, a documented history of 
pertinent experience.
    Paragraph (a)(3) of the proposed rule, now paragraph (c)(2), 
includes detailed design plan requirements for ``other structures.'' 
Similar to the detailed design plans for high hazard dams, significant 
hazard dams, and impounding structures, this paragraph details each of 
the requirements necessary for an adequate design plan for structures 
other than those enumerated in paragraph (c)(1). Additionally, within 
paragraph (c)(2)(i)(A), we included the requirement that the qualified 
registered professional engineer, or qualified registered professional 
land surveyor in states that allow land surveyors to design these 
structures, must be experienced in the design and construction of 
impoundments. Again, this is a new requirement. We recognize that 
although the hazard is inherently lower there is still a potential for 
loss of life. Therefore, utilizing experienced professionals is 
necessary. Paragraph (c)(2)(i)(B) also includes a requirement that all 
coal mine waste structures to which Sec. Sec.  816.81 through 816.84 of 
this chapter apply must be certified by a qualified, registered, 
professional engineer to ensure proper construction.
    One commenter questioned the requirement in proposed paragraph 
(c)(2), that the applicant submit the Mine Safety and Health 
Administration plan to the SMCRA regulatory authority and suggested 
that we delete it. This commenter alleged that this proposed 
requirement is unnecessarily confusing and meaningless because an 
incomplete plan would not be useful to the regulatory authority. The 
commenter suggested that the provision be either eliminated or revised 
to require the submission of the completed Mine Safety Health 
Administration impoundment plan through a permit revision. The 
commenter also noted that the Mine Safety and Health Administration 
plan is already subject to many layers of review and submitting it to 
the regulatory authority would be duplicative. In addition, the 
commenter noted that many of the procedures set out in the plan do not 
impact the environment and would not be relevant to a SMCRA review. We 
concur with the commenter and have removed the requirement within the 
final rule. It is not necessary for the applicant to submit plans 
required by the Mine Safety and Health Administration to the SMCRA 
regulatory authority because, even without those plans, the SMCRA 
regulatory authority can determine whether there are deviations from 
the SMCRA plans.
    We have moved the requirements that detailed plans not submitted 
with the permit application be submitted in accordance with a provided 
schedule and that they be submitted and approved before construction 
begins from paragraph (a)(1)(vi), under ``General requirements'' in the 
proposed rule, to paragraph (c)(3) ``Timing of submittal of detailed 
plans'' in the final rule. This was done because requirements for 
detailed plans were provided in the two previous paragraphs in the 
final rule: High hazard dams, significant hazard dams, and certain 
impounding structures in paragraph (c)(1) and other structures in 
paragraph (c)(2). We decided to address the issue of scheduling 
immediately after requirements for those plans were presented.
Final Paragraph (d): What additional design requirements apply to 
siltation structures?
    For the purpose of clarity, proposed paragraph (b), relating to 
siltation structures, has been reclassified and is found at paragraph 
(d) in the final rule.
Final Paragraph (e): What additional design requirements apply to 
permanent and temporary impoundments?
    For the purposes of clarity, proposed paragraph (c), relating to 
``permanent and temporary impoundments,'' has been modified and 
reclassified as paragraph (e) within the final rule. We removed the 
reference to the criteria for Significant Hazard Class or High Hazard 
Class dams in published by the U.S. Department of Agriculture, Natural 
Resources Conservation Service Technical Release No. 60. As discussed 
above, in connection with paragraph (a), we are requiring hazard 
classification to be done in accordance with the Federal Emergency 
Management Agency's hazard potential classification system.
    In proposed paragraph (c)(4), now (e)(3), we proposed a requirement 
that permittees of impoundments that will meet the Significant Hazard 
Class or High Hazard Class criteria for dams \449\ or satisfy the Mine 
Safety and Health Administration criteria of 30 CFR 77.216(a), include 
with each plan a stability analyses of the structure. One commenter 
stated that the Mine Safety and Health Administration already require 
these actions as part of their regulatory program and doing so here 
would be duplicative. The commenter also indicated that by adding this 
to the SMCRA permit we are implying that compliance with the Mine 
Safety and Health Administration provisions is not adequate. This 
commenter asserted that it is likely to cause inconsistency in 
requirements between the Mine Safety and Health Administration and the 
SMCRA regulatory authority. In general, the commenters requested that 
we remove the provision. We disagree. We are well within our statutory 
authority under section 515(f) of SMCRA \450\ to impose the 
requirements of paragraph (e)(3). Section 515(f) of SMCRA requires 
operators to follow standards and criteria that conform to standards 
and criteria used by engineers to ensure that flood control structures 
are safe and effectively perform their intended function. In addition, 
these requirements in no way supersede requirements imposed by the Mine 
Safety and Health Administration but are, in practice, complementary. 
Analyses required by the Mine Safety Health Administration are 
pertinent to individual stages of construction and are submitted 
piecemeal during construction. Those required by the SMCRA regulatory 
authority are

[[Page 93197]]

pertinent to the structure upon completion of all construction. The 
regulatory authority cannot, during the application review process, 
evaluate the potential impact of the completed structure without 
requiring and receiving analyses based on the final configuration. 
Therefore, in the final rule we now reference the hazard classification 
in paragraph (a) rather than the Natural Resources Conservation Service 
Technical Release No. 60. To the extent that duplication may exist 
between the two regulatory regimes, we encourage states to coordinate 
the processing of permit applications with the Mine Safety and Health 
Administration. For example, the states could perform side-by-side 
review of the analyses of initial stages submitted to Mine Safety and 
Health Administration and the final configuration submitted with the 
SMCRA permit application.
---------------------------------------------------------------------------

    \449\ U.S. Dep't. of Agriculture, Natural Resources Conservation 
Serv. 2005. ``Earth Dams and Reservoirs'' Technical Release No.60 
(July 2005).
    \450\ 30 U.S.C. 1265(f).
---------------------------------------------------------------------------

Final Paragraph (f): What additional design requirements apply to coal 
mine waste impoundments, refuse piles, and impounding structures 
constructed of coal mine waste?
    In proposed paragraph (d)(2)(iv), now paragraph (f)(2)(iv) in the 
final rule, we require that impoundments and siltation structures be 
designed to ensure that at least 90 percent of the stormwater stored in 
the impoundment during the design precipitation event will be removed 
within a 10-day period. One commenter asserted that this requirement 
would need to be addressed in the National Pollutant Discharge 
Elimination System permit as well because it could impact mixing zone 
limits, loading limits, and whether the operation meets numerical 
effluent standards. This assertion appears to be based on a belief that 
greater than normal (stormwater) discharges equate to greater than 
normal loadings of parameters. We proposed this requirement for safety 
reasons as it is important to restore the stormwater storage capacity 
as quickly as possible to prepare for the possible occurrence of 
another significant event. Although the rate of discharge of water is 
greater than normal following a significant precipitation event, 
parameters with numerical effluent limits commonly defined in a 
National Pollutant Discharge Elimination System permit tend to be at 
low concentrations after a significant precipitation event, due to 
dilution, with the exception of suspended solids. Therefore, in many 
cases we do not anticipate that it would be necessary to address 
stormwater discharged over time or that such a discharge would tend to 
exceed loading limits or numerical effluent standards. These are issues 
that should be examined during the National Pollutant Discharge 
Elimination System permitting process and addressed in that permit. 
Nothing in this section, however, exempts an operator from complying 
with its National Pollutant Discharge Elimination System permit as 
approved. Should discharges of stormwater following a precipitation 
event result in exceedances of effluent limitations defined in the 
permit, they would be addressed in the same way as any other such 
exceedance. In addition to potential enforcement by the Clean Water Act 
regulatory authority, the SMCRA regulatory authority may also have 
separate enforcement obligations for failure to comply with 
requirements of Sec.  780.28(a).
    One commenter suggested that we revise the permitting requirements 
to make them similar to the performance standard changes finalized in a 
1983 rulemaking,\451\ by: (1) Replacing the term ``coal processing 
waste banks'' with ``refuse piles'' and (2) replacing the term ``coal 
processing waste dams and embankments'' with references to coal mine 
waste impounding structures. We concur, and, as indicated in the 
proposed rule,\452\ we have replaced the term ``coal processing waste 
banks'' with ``refuse piles'' and the terms ``coal processing waste 
dams and embankments'' with references to coal mine waste impounding 
structures.
---------------------------------------------------------------------------

    \451\ 48 FR 44006 (Sept. 26, 1983).
    \452\ 80 FR 44436, 44511 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 780.26: What special requirements apply to surface mining near 
underground mining?
    We have redesignated proposed Sec.  780.27, and it is now Sec.  
780.26 in the final rule. With the exception of the redesignation, we 
are finalizing this section as proposed. We received no comments on 
this section.
Section 780.27: What additional permitting requirements apply to 
proposed activities in or through ephemeral streams?
    In the preamble to the proposed rule we discussed the unique 
characteristics of ephemeral streams and the vital importance of 
headwater streams, including ephemeral streams, in maintaining the 
ecological health and function of streams down gradient of headwater 
streams.\453\ In the preamble to Sec.  701.5 of the final rule, we 
discussed the revisions of the proposed definition of ``ephemeral 
stream.'' As revised, the final definition of ``ephemeral stream'' now 
includes those conveyances receiving runoff from snowmelt events and 
that have both a bed-and-bank configuration and an ordinary high water 
mark. The final rule also revises our definition of ``intermittent 
stream'' so that it no longer automatically includes streams draining a 
watershed of at least one-square mile. This change may result in a 
number of streams classified as ``intermittent'' under the previous 
regulations being categorized as ``ephemeral streams'' under the final 
rule because the final rule amends the definition of ``intermittent 
stream.'' Additionally, permitting requirements for ephemeral streams 
differ from those for perennial and intermittent streams. Because of 
the distinctions between ephemeral streams and other types of streams, 
we added Sec.  780.27 to the final rule to specifically address the 
permitting requirements for mining in or through ephemeral streams. 
Creating this distinct section also addresses commenters' concerns that 
it was difficult to discern when regulations applied strictly to 
ephemeral streams or applied to all streams.
---------------------------------------------------------------------------

    \453\ 80 FR 44436, 44451-44453 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): Clean Water Act Requirements
    If the proposed permit area includes waters subject to the 
jurisdiction of the Clean Water Act, including some ephemeral streams, 
the regulatory authority must condition the permit to prohibit 
initiation of surface mining activities in or affecting the applicable 
waters before you obtain all necessary authorizations, certifications, 
and permits under the Clean Water Act.\454\This paragraph makes clear 
that although a SMCRA permit may be obtained prior to you obtaining all 
necessary authorizations, certifications, and permits under the Clean 
Water Act, the regulatory authority must place a condition upon the 
permit that no surface mining activities in or affecting waters subject 
to the jurisdiction of the Clean Water Act may be initiated before you, 
obtain all necessary authorizations, certifications, and permits under 
the Clean Water Act.\455\
---------------------------------------------------------------------------

    \454\ 33 U.S.C. 1251 et seq.
    \455\ 33 U.S.C. 1251 et seq.
---------------------------------------------------------------------------

    A similar requirement was found in proposed Sec.  780.28(a), 
however, as discussed in the introduction of Sec.  780.27, we have 
separated out the requirements for ephemeral streams and the 
requirements pertaining to them are found in final rule Sec.  780.27. 
This final paragraph more closely tracks the permit condition found in 
final rule Sec.  773.17(h) and the provisions of final rule Sec.  
780.16(c)(4)(ii) about protection of other species and the requirement 
to

[[Page 93198]]

explain how you will avoid or minimize mining through or discharging 
dredged fill material into wetlands or streams that are subject to the 
jurisdiction of the Clean Water Act. This approach reconciles the needs 
of other federal agencies to consider the SMCRA permit when making 
decisions about granting Clean Water Act authorizations, 
certifications, and permits but balances the needs of the permittee to 
make informed decisions about the feasibility of mining in or through 
ephemeral streams. Placing a permit condition upon the permittee will 
avoid unnecessary and often costly permit revisions by requiring the 
permittee to consult with the Clean Water Act authority at the early 
stages of the SMCRA permitting process. These modifications to the 
final rule were based on both public comment and comments from a 
federal agency.
Final Paragraph (b): Postmining Surface Drainage Pattern and Stream-
Channel Configuration
    Unlike the requirements for intermittent and perennial streams 
discussed in Sec.  780.28, final rule paragraph (b) of this section 
only requires the restoration of a postmining surface drainage pattern 
that is similar to the premining drainage pattern, relatively stable, 
and in dynamic near-equilibrium and postmining stream-channel 
configurations that are relatively stable and similar to the premining 
configuration of ephemeral streams. This means that the stream flood 
plains maintain their alignments and widths, and although the stream 
channel location within the floodplain may vary, the general 
configuration of the stream channel remains relatively constant. To be 
clear, this section does not require the establishment of hydrologic or 
ecological function as mandated for perennial and intermittent streams. 
Paragraph (b)(2) also allows the regulatory authority to approve or 
require a drainage pattern or stream-channel configuration that differs 
from the premining pattern if appropriate to: Ensure stability; prevent 
or minimize downcutting or widening of reconstructed stream channels 
and control meander migration; promote enhancement of fish and wildlife 
habitat; accommodate any anticipated temporary or permanent increase in 
surface runoff as a result of mining and reclamation; accommodate the 
construction of excess spoil fills, coal mine waste piles, or 
impounding structures; replace previously channelized or severely 
altered streams with a more natural, relatively stable, and 
ecologically sound drainage pattern or configuration; or reclaim a 
previously mined area. Because the drainage pattern and stream-channel 
configuration requirements need only be similar to the premining 
patterns and configurations, some differences are allowable--i.e., an 
operator is not required to reconstruct 100 percent of the ephemeral 
streams that existed prior to mining to the same premining 
configuration. However, in order to control meander migration, 
ephemeral streams that are reconstructed, must be constructed within a 
floodplain-width lined channel that is filled with substrate material 
appropriate to the anticipated gradient and flow conditions. The 
reconstructed channel is initially excavated in this substrate and 
allowed to move within the floodplain as a natural stream would 
migrate. These processes contain meander migration within the designed 
floodplain and thus prevent uncontrolled erosion of the reconstructed 
stream channel. We added these requirements in consultation with 
another federal agency to clarify the goal of final rule Sec.  
780.27(b), i.e., to ensure that the stream channel will be stabilized 
and erosion minimized.
    These requirements ensure establishment of a postmining drainage 
pattern that is functionally equivalent to the premining pattern, is 
relatively stable, and in dynamic near equilibrium, while affording the 
regulatory authority the discretion to alter the drainage pattern in 
certain situations that are likely to be better for the hydrologic 
balance. For example, the regulatory authority may allow a variance 
from the requirements in paragraph (b)(1) when onsite conditions are 
such that undesirable situations can be avoided by altering the 
drainage pattern. Examples might include situations where 
reconstructing the premining pattern could result in instability, 
downcutting or widening, or excessive erosion of the reconstructed 
stream channel, or when reconstruction of the premining drainage 
pattern would eliminate an opportunity to enhance wildlife habitat. 
Other examples would include cases where the premining drainage is 
altered to accommodate anticipated increased runoff; accommodate 
construction of spoil, mine waste, or impounding structures; or to 
replace previously channelized or severely altered streams. Another 
example would be the accommodation of the construction of approved 
structures, such as excess spoil fills or coal mine waste impounding 
structures, which may necessitate drainage patterns alterations. Still 
another example of when the regulatory authority may approve an 
alternate drainage pattern is when the premining drainage pattern was 
altered by previous activities, whether mining-related or not. As noted 
by commenters, in some circumstances, restoring the postmining drainage 
to the approximate drainage pattern before any human activity occurred 
may be beneficial and should be allowed. To address this concern, we 
added final paragraph (b)(2)(vii) because the premining surface 
drainage pattern and stream-channel configuration on previously mined 
areas may not be optimal or desirable from a land use, hydrological or 
ecological perspective.
Final Paragraph (c): Streamside Vegetative Corridors
    As discussed previously in this preamble, throughout the final rule 
we have replaced the term ``riparian corridor'' as used in the proposed 
rule with ``streamside vegetative corridor''; this change is also 
incorporated into this section. The final rule is based on the current 
understanding of the contributions made by streamside vegetative 
corridors along ephemeral streams. As discussed above, although a 
permittee is not required to reconstruct 100 percent of the ephemeral 
streams mined in or through, those ephemeral streams that are 
reconstructed must include streamside vegetative corridors constructed 
in accordance with Sec.  816.56(c)(1) through (3) of the final rule. We 
note that final rule Sec.  816.56(c)(4) provides exceptions to the 
requirements to establish streamside vegetative corridors. Final 
paragraphs (c)(4)(i) through (ii) of Sec.  816.56 excludes prime 
farmland historically used for cropland or situations in which 
establishment of a streamside vegetative corridor comprised of native 
species would be incompatible with an approved post-mining land use 
that is implemented prior to final bond release. In response to 
commenters' concerns that prime farmland should not be impacted by 
streamside vegetative corridors, we have made clear in final rule Sec.  
780.27(c)(3) that final Sec.  780.27(c)(1) and (2) do not apply to 
ephemeral streams located on prime farmland.
    Several commenters objected to the requirement to establish a 
streamside vegetative corridor along ephemeral streams claiming that it 
is burdensome or unnecessary. We disagree. As noted in the preamble to 
the proposed rule,\456\ scientific literature documents that streamside 
vegetative corridors--

[[Page 93199]]

formerly referred to as riparian corridors in the proposed rule--are 
essential in promoting stream health and that ephemeral streams are 
important to the over-arching health of the hydrologic regime.\457\ 
Given the unique and essential contributions of ephemeral streams to 
the hydrologic regime, the maintenance, restoration, and establishment 
of streamside vegetative corridors for these stream segments is a 
critical element of stream protection. Moreover, the history of our 
regulations related to buffer zones for streams is directly linked to 
the mandates of SMCRA found at sections 515(b)(10) and (24),\458\ which 
require the minimization of disturbances to the prevailing hydrologic 
balance and to fish, wildlife, and related environmental values. 
Requirements for streamside vegetative corridors for ephemeral streams 
were not included in the previous regulations because the majority of 
the research that identified ephemeral streams as vital to the overall 
health of streams was conducted after the previous regulations were 
implemented. One of the purposes of this final rule is to incorporate 
the results of new research and best technology currently available. By 
including these protections for ephemeral streams we are satisfying 
this mandate.
---------------------------------------------------------------------------

    \456\ 80 FR 44436, 44494 (Jul. 27, 2015).
    \457\ Catherine Leigh, et al. Ecological research and management 
of intermittent rivers: A historical review and future directions. 
Freshwater Biology. (2015).
    \458\ 80 FR 44436, 44513-44518 (Jul 27, 2015).
---------------------------------------------------------------------------

    One commenter expressed concern that the establishment of the 
riparian corridor, along ephemeral streams in particular, supersedes 
the Clean Water Act and is inconsistent with the land use provisions of 
SMCRA. Specifically, the commenter alleged that the proposed rule did 
not consider the actual orientation of headwater ephemeral streams 
where watershed breaks may fall within 100 feet of each side of the 
stream channel. It is not clear how the commenter concluded that this 
requirement supersedes the Clean Water Act. Although the Clean Water 
Act does not require establishment of postmining streamside vegetative 
corridors, it certainly does not prohibit the practice. It is also not 
clear how the commenter concluded that the requirement is inconsistent 
with SMCRA land use provisions because if the postmining land use 
requires reconstruction of ephemeral streams, construction of 
associated streamside vegetative corridors would be entirely consistent 
and required. In response to this comment, we also note that the 
natural streamside vegetative corridors contributing to the ecological 
condition of a stream will typically not extend beyond a watershed 
boundary. However, if they do and are affected by mining operations, or 
mining operations necessitate the reconstruction of these particular 
ephemeral streams, these 100-foot, streamside, vegetative buffers would 
also need to be part of the permitted site, including the area within 
an adjacent watershed. If the area within the other watershed is not 
affected by mining operations, this area would include the already 
existing vegetation and would already be in compliance of this 
requirement.
    Other commenters suggest that the use of native species in the 
vegetative streamside corridor is in conflict with requirements imposed 
by the U.S. Army Corps of Engineers aimed at improving reclamation 
success by using non-native species. To eliminate this potential 
conflict, we added paragraph 816.57(d)(2)(i) to the final rule. That 
paragraph requires planting to be in accordance with the revegetation 
plan approved in the permit, unless the applicable Clean Water Act 
authority directs otherwise. Similarly, one commenter raised concerns 
that the requirement for streamside vegetative corridors along 
ephemeral streams may conflict with local government agency 
requirements, such as when a local government agency regulates a drain 
within that area. It is difficult to conceive of a situation where the 
scenario proffered by this commenter would occur on a mining permit or, 
if it did, why one of the other exceptions would not apply, such as the 
exception for prime farmland.
    Some commenters stated that streams that have no streamside 
vegetation or aquatic life, such as slot canyons and desert swales, 
should be exempt from these requirements. Under the final rule, if 
baseline surveys confirm that vegetation does not exist within 100 feet 
of a stream, establishment of a streamside vegetative corridor is not 
required. However, we anticipate that these situations will be 
extremely rare because some vegetation almost exists.
Section 780.28: What additional permitting requirements apply to 
proposed activities in, through, or adjacent to a perennial or 
intermittent stream?
    Final Sec.  780.28 establishes standards for the review and 
approval of permit applications that propose to conduct surface mining 
activities in, through, or adjacent to streams. We discussed the 
purpose of these standards in the preamble to the proposed rule.\459\ 
After evaluating the comments we received in response to the proposed 
rule, we have reorganized and made several modifications to this 
section in the final rule. Our reorganizational changes and relevant 
general comments are discussed below and are followed by a discussion 
of comments on specific paragraphs of Sec.  780.28. Because of the 
reorganization, we provide an introduction to each final paragraph 
explaining how the final rule related to the proposed rule.
---------------------------------------------------------------------------

    \459\ 80 FR 44436, 44513-44518 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Many commenters opined that the organization of Sec.  780.28 made 
it difficult to determine which permitting requirements applied to each 
stream classification. Proposed Sec.  780.28 contained the permitting 
requirements for perennial, intermittent, and ephemeral streams. 
Commenters stated that this approach was confusing because the 
requirements for mining through or diverting ephemeral streams differed 
from those for perennial or intermittent streams. In response, and as 
explained in the preamble to Sec.  780.27, we have removed the 
requirements applicable to ephemeral streams from Sec.  780.28 and 
placed them in the new Sec.  780.27. As a result, all requirements in 
Sec.  780.28 apply to perennial and intermittent streams, and we have 
changed the title of the section to reflect this reorganization. The 
final rule clearly distinguishes between the requirements that apply to 
perennial, intermittent, and ephemeral streams. As discussed in more 
detail below, we have also made a number of organizational changes to 
Sec.  780.28 to improve clarity.
    In Part III of the preamble to the proposed rule,\460\ we 
identified six specific goals for revising our regulations to better 
protect streams and associated environmental values. One of these goals 
was to protect and restore streams and related resources, including the 
headwater streams that are vital to maintaining the ecological health 
and productivity of downstream waters. We reiterate the need to protect 
these streams in the final rule. This need is strongly rooted in SMCRA 
and in scientific literature documenting the importance of 
streams.\461\
---------------------------------------------------------------------------

    \460\ See 80 FR 44436, 44443 (Jul. 27, 2015).
    \461\ 80 FR 44436, 44439 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Some commenters, however, requested that we institute stronger 
protections than proposed and prohibit all mining in or through 
intermittent and perennial streams. Other commenters took the opposite 
position and argued that the proposed rule tipped the statutory balance 
between

[[Page 93200]]

environmental protection and the Nation's need for coal too far toward 
environmental protection without providing an adequate explanation of 
the need for such protection. As we discussed in the preamble to the 
proposed rule, while it is true that SMCRA contains numerous 
requirements aimed at minimizing or preventing adverse impacts to fish, 
wildlife, related environmental values, the quantity and quality of 
surface water and groundwater, and the hydrologic balance,\462\ it is 
also true that SMCRA seeks 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.'' \463\ The final rule strikes 
the appropriate balance. It does not prohibit all mining in or through 
intermittent and perennial streams. Similar to our previous 
regulations, the final rule contains a general prohibition against 
mining in or through intermittent and perennial streams. However, the 
final rule contains carefully crafted exceptions to this general 
prohibition which will allow mining in or through intermittent and 
perennial streams if applicants satisfy certain requirements. These 
exceptions are designed to minimize disturbances and ensure the 
protection and restoration of perennial and intermittent streams and 
related resources which are critical to maintaining the ecological 
health and productivity of downstream waters, while balancing, as SMCRA 
requires, the nation's need for coal as an essential energy source. As 
we acknowledge in the preamble to the proposed rule, our previous 
regulations did not fully protect many vital environmental values.\464\ 
The final rule, which includes these carefully crafted exceptions, is 
informed by our regulatory experience over the more than three decades 
since the adoption of our previous regulations, both as a regulatory 
authority and overseeing regulatory authorities, and reflects advances 
in scientific knowledge and mining and reclamation techniques developed 
during that time. Further, the final rule more completely implements 
sections 515(b)(24) and 516(b)(11) of SMCRA,\465\ which provide that, 
to the extent possible using the best technology currently available, 
surface coal mining and reclamation operations must be conducted to 
minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values and to achieve enhancement of those 
resources where practicable. We acknowledge that some commenters assert 
that this translates to a blanket prohibition on mining in, through or 
adjacent to streams and others want fewer restrictions, but SMCRA 
requires, and we promulgate through the final rule, a median position, 
effectively balancing the commenters' concerns.
---------------------------------------------------------------------------

    \462\ 80 FR 44436, 44514.
    \463\ 30 U.S.C. 1202(f).
    \464\ 80 FR 44436, 44438-44447 (Jul. 27, 2015).
    \465\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

    Some commenters alleged that restrictions on mining in or through 
streams may have negative impacts on proven lignite reserves, leaving 
the reserves stranded and unable to be economically mined. The 
commenters suggested that we create an exception for lignite. We 
disagree that this rule will strand lignite reserves. The commenters 
did not present any support for their position, and there is nothing 
inherently unique about lignite reserves that would prevent a permittee 
from satisfying the requirements of this section to allow mining in or 
through streams or relocating streams in order to recover lignite. More 
importantly, many of the requirements that the commenters allege would 
strand lignite reserves would likely be inapplicable under the final 
rule because of changes we have made in response to public comments and 
the interagency process. For instance, many streams located above the 
lignite reserves, especially in the Gulf Coast Region, that were 
classified as intermittent under the previous regulations, are now 
categorized as ephemeral streams in the final rule. This is the case 
because Sec.  701.5 of the final rule amends the definitions of 
intermittent and ephemeral streams. Under the previous regulations, we 
would have categorized a stream with a bed-and-bank configuration that 
is always above the water table and with flows arising solely from 
precipitation (and snow melt) as intermittent if it had a drainage area 
of at least one square mile. As discussed in the preamble to final 
Sec.  701.5, we will now consider a stream with ephemeral flow 
characteristics (i.e., one with a bed-and-bank configuration, an 
ordinary high water mark, that is always above the water table and with 
flows arising solely from precipitation (and snow melt)) to be 
ephemeral, regardless of the size of the drainage area. Because the 
final rule contains fewer restrictions for mining in or through 
ephemeral streams, it is unlikely that lignite reserves will be 
stranded as a result of this rule. For these reasons, we did not add an 
exception for lignite.
    As discussed more fully below in our discussion on final paragraph 
(e), we have restructured the final rule by adding a chart to explain 
the demonstrations a permittee must make prior to performing certain 
activities in or within a perennial or intermittent stream. Included in 
the chart are the requirements with which a permittee must comply when 
proposing to construct a coal mine waste facility that encroaches upon 
any part of a perennial or intermittent stream. Proposed paragraph (d) 
contained similar requirements. In response to the proposed rule, one 
commenter objected to the proposed permitting of coal mine waste 
facilities in 100-year floodplains and suggested that these facilities 
should require a higher level of scrutiny with greater long-term 
protective measures than proposed. In response, we note that, in most 
states, state and local authorities determine whether any facility may 
be constructed in a floodplain. Like any other permit applicant seeking 
to construct a structure in the 100-year floodplain, a permit applicant 
seeking to construct a coal mine waste facility in a 100-year 
floodplain must comply with state and local laws and regulations. We 
have not made any changes to the final rule in response to this 
comment. We defer to state or local authorities with knowledge of the 
applicable laws and regulations to make a determination on whether a 
coal mine waste facility may be appropriately placed in a 100-year 
floodplain.
    Several commenters suggested that the final rule should allow 
temporary impacts to streams, such as a temporary conversion of a 
perennial stream to an intermittent stream. Temporary impacts to stream 
flow during mining and reclamation are allowed under the rule. This is 
consistent with SMCRA and our previous regulations.\466\ As an example 
of one temporary impact permissible under the final rule, consider 
final rule paragraph (e)(2), which addresses converting a minimal 
portion of a mined-through segment of an intermittent stream. It may 
take several years for a backfilled area to reach hydrologic 
equilibrium. During that time, a stream may be temporarily converted. 
However, to convert a minimal portion of a stream, the permittee must 
still demonstrate that it will restore the hydrologic function and 
ecological function of the stream as a whole within the mined area to 
its premining stream type prior to bond release. This is only one 
example of an allowable temporary impact to streams

[[Page 93201]]

and we agree with the commenter that temporary impacts are permissible. 
We discuss the specific requirements a permittee must demonstrate to 
achieve approval to convert a minimal portion of a mined-through 
segment of an intermittent stream to an ephemeral stream in more detail 
in final paragraph (e)(2).
---------------------------------------------------------------------------

    \466\ See 30 CFR 1265(b)(10) which requires minimization to 
``disturbances to the prevailing hydrologic balance at the mine site 
and in associated offsite areas,'' not avoidance or a prohibition of 
disturbances.
---------------------------------------------------------------------------

    One regulatory authority commenter requested additional explanation 
about the performance standards for alluvial valley floors in Western 
states. We did not propose any changes to the previous regulations 
concerning alluvial valley floors in Western states. Therefore, the 
final rule does not affect those performance standards.
Final Paragraph (a): Clean Water Act Requirements
    Final paragraph (a) is similar to proposed paragraph (a). For 
reference, we proposed to add paragraph (a) to emphasize that a person 
seeking to conduct surface mining activities ``in waters of the United 
States'' must procure all necessary authorizations, certifications, and 
permits pursuant to the Clean Water Act \467\ before initiating mining 
in those waters. In the preamble to the proposed rule we explained that 
issuance of the SMCRA permit alone is not sufficient.\468\
---------------------------------------------------------------------------

    \467\ 33 U.S.C. 1251 et seq.
    \468\ 80 FR 44436, 44515 (Jul. 27, 2015).
---------------------------------------------------------------------------

    We have modified final paragraph (a) to clarify that if the 
proposed permit area includes waters subject to the jurisdiction of the 
Clean Water Act, including perennial and intermittent streams, the 
regulatory authority must condition the permit to prohibit initiation 
of any surface mining activities in or affecting those waters before 
you obtain all necessary authorizations, certifications, and permits 
under the Clean Water Act.\469\ This paragraph makes clear that 
although a SMCRA permit may be obtained prior to you obtaining all 
necessary authorizations, certifications, and permits under the Clean 
Water Act, the regulatory authority must place a condition upon the 
permit that no surface mining activities in or affecting those waters 
may be initiated before you obtain all necessary authorizations, 
certifications, and permits under the Clean Water Act.\470\ Also, at 
the suggestion of a federal agency, we have removed reference to ``in 
waters of the United States'' and replaced it with the phrase, 
``subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 1251 et 
seq.''
---------------------------------------------------------------------------

    \469\ 33 U.S.C. 1251 et seq.
    \470\ 33 U.S.C. 1251 et seq.
---------------------------------------------------------------------------

    Final paragraph (a) more closely tracks the permit condition found 
in final rule Sec.  773.17(h) and the provisions of final rule Sec.  
780.16(c)(4)(ii) about protection of other species and the requirement 
to explain how you will avoid or minimize mining through or discharging 
dredged fill material into wetlands or streams that are subject to the 
jurisdiction of the Clean Water Act. It differs from the proposed rule 
because it now conditions the initiation of surface mining activities 
in or affecting waters subject to the jurisdiction of the Clean Water 
Act upon first receiving the necessary authorizations, certifications, 
and permits under the Clean Water Act. This difference in when 
applicable surface activities can be initiated reconciles the needs of 
other federal agencies to consider the SMCRA permit when making 
decisions about granting Clean Water Act authorizations, 
certifications, and permits but balances the needs of the permittee to 
make informed decisions about the feasibility of mining in or through 
intermittent or perennial streams. Placing a permit condition upon the 
permittee will avoid unnecessary and often costly permit revisions by 
requiring the permittee to consult with the Clean Water Act authority 
at the early stages of the SMCRA permitting process, but will not delay 
the SMCRA permit authorization. These modifications to the final rule 
were based on both public comment and comments from a federal agency.
    Moreover, final paragraph (a) ensures protection of streams as 
required by section 515(b)(10) and compliance with section 702(a) of 
SMCRA, which specifies that nothing in the Act should be construed as 
superseding, amending, modifying, or repealing, ``federal laws relating 
to the preservation of water quality,'' including the Clean Water Act 
and state laws enacted pursuant to the Clean Water Act.\471\
---------------------------------------------------------------------------

    \471\ 30 U.S.C. 1292(a).
---------------------------------------------------------------------------

    Some commenters opposed the idea of us instituting a permit 
condition relative to the Clean Water Act asserting that it exceeds our 
authority under SMCRA, duplicates the requirements of the Clean Water 
Act, or inappropriately requires the SMCRA regulatory authority to 
determine whether the applicant obtained the appropriate Clean Water 
Act authorizations, certifications, or permits. We disagree. We are not 
exceeding our authority or duplicating the efforts of the Clean Water 
Act authority by requiring the regulatory authority to condition the 
permit to prohibit initiation of surface mining activities in or 
affecting waters subject to the jurisdiction of the Clean Water Act 
before the permittee obtains all necessary authorizations, 
certifications, and permits pursuant to the Clean Water Act. Permit 
conditions are directly enforceable under SMCRA.\472\ The fact that 
this permit condition requires compliance with the Clean Water Act 
before surface mining activities take place in streams does not convert 
the SMCRA enforcement of a permit condition into a Clean Water Act 
enforcement action, nor does it supersede the Clean Water Act.
---------------------------------------------------------------------------

    \472\ See 30 U.S.C. 1271(a)(4).
---------------------------------------------------------------------------

    Another commenter alleged that, in the rule, Clean Water Act 
requirements are always mentioned in the context of perennial or 
intermittent streams. The commenter suggested that wetlands are equally 
subject to the requirements of the Clean Water Act. The commenter 
recommended that specific mention of wetlands be added to Sec.  
780.28(a). We agree with the commenter that wetlands are equally 
subject to the requirements of the Clean Water Act; however, we decline 
to make changes to Sec.  780.28(a) because Sec.  780.28 specifically 
addresses activities in, through, or adjacent to perennial or 
intermittent streams. Please see the discussion of wetlands in the 
preamble to final rule Sec.  780.16(c)(4).
Final Paragraph (b): To what activities does this section apply?
    We have made non-substantive modifications to the title of this 
paragraph. Like proposed paragraph (b), final paragraph (b) explains 
that the permit applicant must provide certain information and 
demonstrations whenever it proposes to conduct surface mining 
activities in or through a perennial or intermittent stream or on the 
surface of lands within 100 feet of a perennial, or intermittent 
stream. We have added a reference to final paragraphs (c) through (g) 
in order to clarify that the specific demonstrations required are found 
in those paragraphs. As discussed above, we have also removed 
references to ephemeral streams from this section.
    One commenter suggested that we replace the term ``bankfull'' in 
proposed paragraph (b)(1)(ii) with the phrase ``ordinary high water 
mark'' because ordinary high water mark is both more commonly accepted 
and more easily determined. We agree and have revised final paragraph 
(b)(2) and other references to ``bankfull'' throughout the final rule 
for consistency.\473\ For further

[[Page 93202]]

discussion of this term, you may consult the preamble discussion on 
Sec.  701.5 of the final rule.
---------------------------------------------------------------------------

    \473\ See Final rule sections: 701.5--ephemeral, intermittent, 
and perennial stream definitions, 780.16(c)(2), 780.28(b)(2) and 
(d)(2), 780.35(e), 780.37(a)(4)(i), 784.16(c)(2), 784.28(b)(2) and 
(d)(2), 784.35(e), 784.37(a)(4)(i), 816.57(b), 816.57(d)(iv), 
816.97(j)(2)(i), 817.57(b), 817.57(d)(iv).
---------------------------------------------------------------------------

Final Paragraph (c): Postmining Surface Drainage Pattern and Stream-
Channel Configuration
    As a general rule, a permittee that proposes to mine through a 
perennial or intermittent stream must include in its permit application 
a plan to restore a surface drainage pattern that is relatively stable, 
and in dynamic near-equilibrium and stream-channel configuration that 
is similar to the premining configuration and is relatively stable. 
Final paragraph (c)(1) prescribes this general rule, but final 
paragraph (c)(2) grants the regulatory authority discretion to approve 
or require a postmining drainage pattern or configuration that deviates 
from the general rule in specific circumstances. These requirements 
ensure the establishment of a postmining drainage pattern or stream-
channel configuration that is functionally equivalent to the premining 
pattern, while affording the regulatory authority the discretion to 
approve other configurations when such configurations are likely to be 
better for the hydrologic balance or ecological function. We have re-
designated and separated select portions of proposed paragraph (c) to 
create final paragraph (c) and more clearly explain the permittee's 
obligations. Components of final paragraph (c) were in proposed 
paragraph (c)(1) and we discussed them in the preamble to the proposed 
rule.\474\ However, we re-designated the paragraph to improve clarity 
and address commenters' concerns that proposed Sec.  780.28(c) was 
confusing. Additionally, as discussed below, we have added final 
paragraphs (c)(2)(iv) through (vii) to explain when the regulatory may 
approve or require a different postmining surface drainage pattern or 
stream-channel configuration.
---------------------------------------------------------------------------

    \474\ 80 FR 44436, 44514-44516 (Jul. 27, 2015).
---------------------------------------------------------------------------

    The general requirement in final paragraph (c)(1) to return the 
drainage pattern and stream-channel configuration to the functional 
equivalent of the premining state recognizes that the design of a 
stream channel is essential to stream health and that successfully 
restoring stream channel configuration is the first step in the process 
of reestablishing the ``form'' of the stream. As explained in its 
definition at final rule Sec.  701.5, the term ``form'' refers to the 
physical characteristics, pattern, profile and dimensions of a stream 
channel. Reestablishment of ``form'' is a prerequisite for restoration 
of hydrologic function and ecological function and ultimately, stream 
restoration.
    Several commenters alleged that restoring the premining drainage 
pattern is a significant and onerous constraint on postmining grading 
and backfilling plans. The commenters also asserted that replicating 
premining characteristics of a stream channel would be virtually 
impossible. In response to these comments, we note that the final rule 
does not require the permittee to demonstrate that the postmining 
drainage pattern be returned to exactly the premining state. In both 
the proposed and final rule paragraph (c), we require only that the 
postmining drainage pattern be similar to the premining pattern unless 
the regulatory authority grants an exception under (c)(2). Other 
commenters claimed, without explaining the assertion, that the 
requirements in proposed paragraph (c), including the requirement to 
restore postmining drainage patterns, are unnecessary in most states. 
We disagree that these requirements are unnecessary in any state. As we 
have previously stated in this preamble, streams are important 
nationwide. Further, as we explained in the preamble of the proposed 
rule, ``in addition to [providing] ecological benefits, th[ese] 
requirement[s] would better implement the requirement in section 
515(b)(3) of SMCRA that the permittee restore the approximate original 
contour of the land.'' \475\ All mines, regardless of location, are 
subject to the requirement to restore approximate original contour. 
Moreover, requiring a permittee to restore the premining drainage 
pattern and stream channel configuration will likely result in the 
least impact to the hydrologic and ecological function of the stream as 
a whole. Therefore, we are retaining this essential requirement.
---------------------------------------------------------------------------

    \475\ 80 FR 44436, 44516 (Jul. 27, 2015).
---------------------------------------------------------------------------

    One commenter suggested that we add specific requirements to final 
paragraph (c) for applicants to submit data on stream pattern and 
sinuosity, water depth, alluvial groundwater depth, depth to bedrock, 
elevation, bankfull depth, and width. The commenter asserted that the 
general requirements in proposed paragraph (c) were not sufficient. 
According to the commenter, requiring this data would allow the 
regulatory authority to better compare the restored drainage pattern 
and stream-channel configuration with what existed prior to mining. The 
commenter also requested a definition, guidance, or methodology for 
determining flood-prone areas. This commenter recommended that we 
require commonly accepted hydrologic modeling like the Federal 
Emergency Management Agency's mapping system, Rosgen's Stream 
Classification, and the measuring of flood-prone elevation, and that we 
establish a specific distance for the width of each side of the flood-
prone area. In addition, the commenter suggested that we provide 
guidance on considering seasonality effects when conducting these 
measurements. Conversely, we received numerous comments specifically 
opposing the adoption of such changes. These commenters claimed that 
this approach would be too prescriptive and stated that the regulatory 
authority should have discretion to determine which methodologies to 
adopt and what kind of data to require. We agree with these latter 
commenters that the regulatory authority is in the best position to 
adopt the most appropriate approach because it is the regulatory 
authority that is most familiar with the unique geographic and geologic 
characteristics of its own jurisdiction. This will also allow the 
regulatory authorities additional flexibility to adapt to changing 
circumstances or to adopt newer techniques as they become available 
without waiting for an additional federal rulemaking.
    However, we note that many of the parameters suggested by the 
commenter, including sinuosity, bankfull depth, and the flood-prone 
area to bankfull width ratio (entrenchment) are included in the final 
rule Sec.  701.5 definition of ``form'' and discussed in the preamble 
of final rule Sec.  816.57(e). For clarification, a stream segment 
cannot be successfully reconfigured unless the ``form'' of a stream is 
restored throughout the length of each stream segment. Therefore, the 
commenters' concerns are addressed in the performance standards of 
final rule Sec.  816.57(e) and may also be considered when developing 
the plan to configure a stream channel as required by final rule Sec.  
780.28(c)(1)(ii). As explained in the preamble to final rule Sec.  
816.57(e), in order to achieve Phase I bond release, a permittee must 
demonstrate that it has successfully restored or reconstructed the 
``form'' of the stream segment in accordance with the approved design 
developed in accordance with Sec.  780.28(c)(1). A permittee 
successfully restores ``form'' under our final rule by utilizing many 
of the methodologies the commenter suggests. Final paragraph (c) 
requires a plan to construct a postmining stream channel configuration 
similar to the premining configuration. Although we are not

[[Page 93203]]

requiring a specific methodology for restoring ``form'' in the 
permitting requirements of final paragraph (c), the performance 
standards require the characteristics that establish ``form'' to be 
present in the postmining stream channel configuration. Final paragraph 
(c) works in conjunction with the performance standards of Sec.  
816.57(e).
    Final paragraph (c)(2) prescribes seven circumstances under which a 
regulatory authority may waive the general requirement to restore the 
premining drainage pattern and stream-channel configurations. Proposed 
paragraphs (c)(1)(i) through (iii) contained three of these exemptions, 
which we have retained in final paragraphs (c)(2)(i) through (iii). 
However, we have added clarity to these exemptions to ensure that the 
goal of final Sec.  780.28(c) perpetuated, i.e., that the stream 
channel be stabilized and erosion be minimized. The regulatory 
authority may grant these exemptions if it finds that a different 
pattern or configuration is necessary or appropriate to: (1) Ensure 
stability, (2) prevent or minimize deepening or widening of 
reconstructed stream channels and control meander migration, or (3) 
promote or enhance wildlife habitat consistent with sections 515(b)(24) 
and 516(b)(11) of SMCRA.\476\ The same commenters that objected to the 
general requirements in proposed and final section (c)(1) also opined 
that the regulatory authority-approved deviations in proposed paragraph 
(c)(1)(i) through (iii) would be subject to a great amount of 
subjectivity and misinterpretation by regulators and could result in 
the inconsistent treatment of operators. We disagree that these 
requirements are too subjective, and we do not agree that they will be 
subject to misinterpretation. The information and demonstrations 
required supply basic information that the regulatory authority needs 
to determine if mining activity will result in material damage to the 
hydrologic balance outside the permit area as well as cause irreparable 
long-term damage to the health of the streams on permit. Despite the 
commenters' allegations, final paragraph (c)(2) provides more 
consistency in determining whether mining activity will result in 
material damage to the hydrologic balance or cause irreparable long-
term damage to the health of streams, while simultaneously allowing 
each regulatory authority the flexibility to take site-specific 
considerations into account.
---------------------------------------------------------------------------

    \476\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

    In paragraph (c)(2)(iv) through (vii) of the final rule, for the 
purposes explained below, we have added four more exemptions to the 
general requirement to restore the premining drainage pattern and 
stream-channel configurations. The regulatory authority may now also 
grant exemptions when doing so is necessary or appropriate to: (1) 
Accommodate any anticipated temporary or permanent increase in surface 
runoff as a result of mining and reclamation; (2) accommodate the 
construction of excess spoil fills, coal mine waste refuse piles, or 
coal mine waste impounding structures; (3) replace a stream that was 
channelized or otherwise severely altered prior to submittal of the 
permit application with a more natural, relatively stable, or 
ecologically sound drainage pattern or stream-channel configuration; or 
(4) reclaim a previously mined area.
    In response to a commenter's concern that mining may result in 
temporary or permanent increases in surface runoff, we have added final 
paragraph (c)(2)(iv). This provision accommodates situations in which 
watershed boundaries have been moved from premining locations. 
Relocating watershed boundaries may result in larger surface water 
flows in some watersheds and smaller surface water flows in other 
watersheds.
    We have added final paragraph (c)(2)(v) in response to a comment 
suggesting that proposed paragraph (c) and proposed paragraph (d), 
which set out requirements to construct excess spoil fills, coal mine 
waste refuse piles, or coal mine waste impounding structures, 
conflicted with one another. The commenter opined that it would be 
impossible to restore the surface drainage pattern and stream-channel 
configuration of a stream if an excess spoil fill or coal mine waste 
disposal facility is constructed. We have resolved this alleged 
conflict by clarifying that the regulatory authority may approve a 
postmining surface drainage pattern or stream-channel configuration 
that differs from the premining pattern or configuration when it is 
necessary to accommodate the construction of excess spoil fills, coal 
mine waste refuse piles or coal mine waste impounding structures.
    We have added final paragraph (c)(2)(vi) to correlate with final 
paragraph (e)(3), which we added to the final rule to incentivize 
mining techniques that result in improvements to streams that are 
degraded. Final paragraph (c)(2)(vi) allows an exemption to the 
requirement to restore premining drainage pattern and stream-channel 
configurations if the regulatory authority finds that a different 
pattern or configuration is necessary or appropriate to replace a 
stream that was channelized or otherwise severely altered with a more 
natural, relatively stable, and ecologically sound drainage pattern or 
stream-channel configuration.
    In response to several commenters, including a federal agency 
commenter, we have added exception (c)(2)(vii). This exception allows 
for a different pattern or configuration when it is necessary to 
reclaim a previously mined area because the premining surface drainage 
pattern and stream-channel configuration on previously mined areas may 
not be optimal or desirable from a land use, hydrological, or 
ecological perspective.
    Some commenters suggested that there may be additional reasons to 
change minor channel drainage patterns such as to accommodate coal 
removal, minimize the re-handling of backfill, and conduct 
contemporaneous reclamation. We agree that minor deviations from the 
premining drainage pattern are permissible. However, the additional 
exceptions outlined by the commenters are not necessary because the 
final rule only requires the restored drainage patterns be similar to 
the original drainage patterns. They do not have to be exactly the 
same. Moreover, the commenters' concerns may be addressed in the 
expanded list of exemptions that we have discussed above.
    Another commenter alleged that the requirements contained in 
proposed paragraph (c) did not appear to account for special cases, 
such as dropped off final cuts or initial cut development. We disagree 
because the examples the commenter provides are not special cases. 
Final paragraph (c)(2) provides the regulatory authority with 
discretion to approve a different postmining pattern in certain 
circumstances, including what the commenter describes as ``special 
cases.'' For example, if any of the conditions identified in paragraphs 
(c)(2)(i) through (vi) apply, such as promoting enhancement of the fish 
and wildlife habitat, in the reclaimed area of initial cut development 
or in the area of final cut, the regulatory authority could allow the 
permittee to alter the postmining drainage pattern from that which 
existed premining. If the exceptions identified in paragraphs (c)(2)(i) 
through (vi) do not apply, the permittee must reconstruct the drainage 
pattern to a condition similar to the premining pattern.
    We have not adopted proposed paragraph (c)(2)(iv)(A), which would 
have required the selective placement of low permeability materials in 
the backfill or fill and associated stream channels to create an 
aquitard that

[[Page 93204]]

would channel infiltrated precipitation to restored streams in order to 
reestablish perennial or intermittent stream flow. Some commenters 
noted that this requirement could be difficult or impossible to achieve 
in many circumstances because of the lack of available soil or subsoil, 
root depth issues, lack of available aquitard material, and changes in 
permeability due to mining. These commenters stated that the regulatory 
authority is in the best position to establish objective standards for 
restoring the ecological function of a stream. While we acknowledge 
that reestablishing sufficient flow is paramount to successfully 
returning hydrologic function--and ultimately ecological function--to 
intermittent and perennial streams, we agree with the commenters that 
the applicant and the regulatory authority are in the best position to 
determine the most appropriate method for ensuring stream flow is 
reestablished post mining. In final paragraph (g) we set out the 
standards for stream restoration. Use of aquitards to reestablish flow 
is just one method of accomplishing this restoration Therefore, we have 
removed the specific requirement in proposed paragraph (c)(2)(iv)(A) to 
construct aquitards. As discussed in the preamble to final paragraph 
(g)(3)(iv)(A), although we do not require the use of aquitards we have 
required that the regulatory authority use the best technology 
currently available to either create standards to restore the form, 
hydrologic function, and water quality of intermittent streams and 
reestablishment of streamside vegetation for intermittent streams when 
there are no scientifically defensible protocols established to assess 
biological condition or, where scientifically defensible protocols 
exist, assess the biological condition of the stream.
    For the reasons discussed in the final preamble to Part 800, we are 
not adopting proposed Sec.  780.28(c)(2)(B), which would have required 
a separate bond guaranteeing the return of ecological function.
Final Paragraph (d): Streamside Vegetative Corridors
    Final paragraph (d)(1) requires that any permittee proposing to 
conduct any surface mining activities in or through a perennial or 
intermittent stream or on the surface of lands within 100 feet of a 
perennial or intermittent stream must include in the permit application 
a plan to establish a vegetated streamside corridor at least 100 feet 
wide along each bank of the stream after the completion of surface 
mining activities. The streamside vegetative corridor must be 
consistent with natural vegetation patterns and must adhere to the 
streamside vegetative corridor requirements of final paragraph (d) of 
Sec.  816.57. At final paragraph (d)(2) of Sec.  780.28, we also 
require that the corridor width must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark. 
We proposed similar requirements at proposed paragraph (b)(3), but we 
have moved them to final paragraph (d) and consequently, re-titled this 
paragraph. We have also made some other modifications, as discussed 
below.
    Although we have made substantive changes to the final rule in 
response to comments, we have retained many of the concepts and 
specific provisions of the proposed rule relating to streamside 
corridors. For example, proposed paragraph (b)(3)(i) required the 
corridor width to be measured on a line perpendicular to the stream, 
beginning at the ``bankfull elevation or, if there are no discernable 
banks, the centerline of the active channel.'' One commenter suggested 
that the 100-foot wide corridor should be measured following the angle 
of the land rather than horizontally on a line perpendicular to the 
stream beginning at the bankfull elevation or, if there are no 
discernable banks, the center line of the active channel. We recognize 
that it may be easier for a person to actually measure if he or she 
follows the angle of the land, but this type of measurement is also 
likely to produce irregular results across the country due to different 
topographies. Moreover, the method proposed by this commenter does not 
account for seasonal variability and, in practice, may not uniformly 
preserve a full 100-foot corridor on each side of the stream. As 
discussed in the preamble discussion of ``ordinary high water mark'' in 
Sec.  701.5 of the final rule, one commenter suggested that the term 
``ordinary high water mark'' is more commonly accepted and more easily 
determined than the term ``bankfull.'' We agree and have revised 
references to ``bankfull'' throughout the final rule. Thus, we modified 
final paragraph (d)(2) to provide that when determining the 100-foot 
width of the riparian corridor along both banks of the stream, 
measurements should be done horizontally on a line perpendicular to the 
ordinary high water mark.
    We have also replaced the term ``riparian corridor'' with the term 
``streamside vegetative corridor.'' Proposed paragraph (b)(3)(i) 
required a permittee seeking to conduct mining activities in or through 
streams or on the surface of lands within 100 feet of streams to 
establish a ``riparian corridor'' following mining. Several commenters 
misinterpreted the language in the proposed rule to mean that all lands 
within 100 feet of a stream must be revegetated with hydrophilic 
vegetation. One commenter who interpreted our rule this way cited the 
Bureau of Land Management's definition of ``riparian corridor'' as 
``area exhibiting vegetation and physical characteristics reflective of 
permanent surface or subsurface water influence'' and suggested that 
not all areas within 100 feet of a stream have riparian 
characteristics. We did not intend to imply that the entirety of the 
corridor must be planted with hydrophilic vegetation. In order to 
correct this potential misinterpretation, we have replaced the phrase 
``riparian corridor'' with ``streamside vegetative corridor.'' Our use 
of the term ``streamside vegetative corridor'' is intended to clarify 
that the permittee must use appropriate native vegetation, which is not 
always riparian or hydrophilic in nature. Postmining streamside 
vegetative corridors should reflect what is determined to exist in the 
premining landscape and are not necessarily dependent upon the presence 
of surface or groundwater. Despite this change in terminology, the 
comments on proposed (b)(3)(i), including references to ``riparian 
corridor'', and our responses to those comments are still pertinent to 
final paragraphs (d)(1) and (d)(2) and we discuss them below.
    Many commenters supported the proposed corridor. Others supported 
the concept of a corridor, but suggested modifications to the size or 
implementation of the corridor. Still others opposed the proposed 
corridor. Many of the commenters who supported the proposed requirement 
for a corridor requested that we strengthen the proposal to impose a 
strict 100-foot buffer on each side of a stream and not allow the 
exceptions or variances that we proposed in paragraph (b)(3)(iii). 
These commenters asserted that anything less than an unequivocal 100-
foot buffer on either side of all streams, even in situations where 
excess spoil is placed or coal mine waste disposal facilities exist, is 
``unreasonable'' because the risk of damaging vital waterways and 
imperiled species poses a greater threat than the stranding of some 
coal reserves. Further, the commenters alleged that an already 
declining coal market will not suffer any significant loss if we were 
to impose a 100-foot ``buffer'' with no exceptions. Several commenters 
alleged that the

[[Page 93205]]

proposed 100-foot minimum width for the corridor as proposed in 
paragraph (d)(1) was arbitrary. Some of these commenters suggested that 
the regulatory authority should establish the width of the corridor on 
a site-by-site basis. Still other commenters objected to the 100-foot 
riparian corridor, alleging that we had converted a best management 
practice for operating near streams into an unauthorized, rigorous 
permitting and design standard that also dictates long-term land uses.
    Upon review of these comments, we are retaining the requirement for 
a general rule establishing a 100-foot wide streamside vegetative 
corridor on each side of perennial and intermittent streams, subject to 
certain narrowly-tailored exceptions, because this strikes the 
necessary balance between environmental protection and the Nation's 
need for coal as an essential source of energy.\477\ In the preamble to 
the proposed rule at Part IV and proposed Sec.   816.57(a), we 
explained that this distance is consistent with our history of 
requiring a minimum, nationwide, 100-foot corridor width on either side 
of a stream. Contrary to the assertions by some commenters, this 
requirement has never been considered merely a ``best management 
practice.'' Furthermore, as discussed in the preamble to the proposed 
rule, this width is supported by science.\478\ In sum, the minimum 100-
foot corridor width is within the lower end of the range of recommended 
minimum widths for wildlife habitat and flood mitigation, in the middle 
of the range for sediment removal and nitrogen removal from streams, 
and exceeds the range recommended for water temperature moderation and 
bank stabilization and aquatic food web maintenance.\479\ This approach 
is well within our authority pursuant to section 515(b)(24) of SMCRA to 
employ, to the extent possible, the best technology currently 
available, to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values. We conclude, therefore, 
that the 100-foot minimum width strikes an appropriate balance between 
the various recommended corridor widths and specific environmental 
objectives.
---------------------------------------------------------------------------

    \477\ 30 U.S.C. 1202(f).
    \478\ 80 FR 44436, 44494 and 44552 (Jul. 27, 2015).
    \479\ See, e.g., David Welsch, Riparian Forest Buffers: 
Functions and Design for Protection and Enhancement of Water 
Resources, NA-PR-07-91, U.S. Dep't. of Agric., Forest Serv. 
Northeastern Area and Private Forestry (1991). http://www.na.fs.fed.us/spfo/pubs/n_resource/buffer/cover.htm (last 
accessed Nov. 1, 2016).
---------------------------------------------------------------------------

    The 100 foot minimum corridor requirement, however, does not change 
the site-specific nature of the determination of the appropriate 
corridor width. While it does establish a minimum width, the provision 
also allows a regulatory authority, depending on the permit, to require 
a wider corridor. For example, a wider corridor may be preferable when 
species or habitats of concern are present or because of climatological 
and topographical characteristics of the permit and the relevant 
adjacent areas.
    Some commenters recommended that we extend the requirement to 
establish a 100-foot corridor to non-forested areas. Like the proposed 
rule, the final rule 100-foot streamside vegetative corridor 
requirement applies whenever a permittee proposes to conduct surface 
mining on the surface of lands within 100 feet of streams, or when the 
permittee proposes to conduct surface mining activities in or through 
all streams, with the exception of diversions that will be in place 
less than three years and subject to the exceptions in final rule Sec.  
816.57(d)(4)(i) through (iii). Thus, the streamside vegetative corridor 
requirement is not limited to streams in forested areas as the 
commenter contends. Final rule paragraph (d) requires a permittee to 
populate streamside vegetative corridors consistent with natural 
vegetation patterns and the performance requirements of final Sec.  
816.57. Final Sec.  816.57(d)(2) prescribes the specific requirements 
for planting streamside vegetative corridors. Although permittees are 
required to use native trees and shrubs when planting areas within the 
streamside corridor that were forested or may revert to forest under 
condition of natural succession, this requirement does not foreclose 
establishing streamside vegetative corridors on non-forested land. 
These requirements are part of the best technology currently available 
to minimize adverse impacts on fish, wildlife, and related 
environmental values and to achieve enhancement of those resources, as 
required by section 515(b)(24) of SMCRA.\480\
---------------------------------------------------------------------------

    \480\ 30 CFR 1265(b)(24).
---------------------------------------------------------------------------

    Other commenters contend that the removal of vegetation and soil 
disturbance from non-forested areas could lead to sedimentation and 
other pollution that may cause undue harm to streams and the species 
that depend on them. We disagree with the commenters asserting that a 
streamside vegetative corridor may cause undue harm to streams because 
these commenters fail to consider the other requirements of our 
regulations that require a permittee to implement erosion and 
sedimentation controls, such as final rule Sec.  780.12(f), which is 
designed to stabilize exposed surfaces and effectively control erosion.
    Another commenter asked if a riparian corridor must be established 
along all streams inside a permit area including streams that will not 
be impacted. In general, the section applies only to streams within the 
permit area that are affected by mining. Any affected streams within 
the permit area would be adequately protected by the requirements of 
this section. It is possible, however, that in a single permit area a 
permittee may propose to mine through one stream without touching a 
second stream, but that the 100-foot streamside vegetative corridors 
could overlap. Consistent with the permitting requirements of this 
paragraph and final rule Sec.  816.57(d)(1)(ii), in this scenario the 
permittee must ``establish a vegetative corridor on any land 
[disturbed] within 100 feet of a perennial or intermittent stream.'' 
Therefore, to the extent it disturbs the second stream's vegetative 
corridor, the permittee must establish a streamside vegetative corridor 
for that second stream.
    Some commenters suggested that the 100-foot riparian corridor 
should not apply in situations where no riparian corridor existed prior 
to mining or where there was ``human development'' prior to mining. As 
discussed in Part III of the preamble to the proposed rule,\481\ 
streamside vegetative corridors are essential to stream health. 
Therefore, we decline to include additional exceptions to account for 
the use of the land prior to mining.
---------------------------------------------------------------------------

    \481\ 80 FR 44436, 44443 (Jul. 27, 2015).
---------------------------------------------------------------------------

    One commenter suggested that the establishing of a riparian 
corridor may degrade critical habitat for threatened, endangered, or 
candidate species by substituting vegetation. We intend Sec.  780.28 to 
work in concert with the rest of Part 780, including Sec.  780.16, 
which outlines the requirements for a valid fish and wildlife 
enhancement plan. As explained in the preamble discussion of Sec.  
780.16, the regulatory authority may not issue a permit until an 
applicant first explains how it will adhere to the Endangered Species 
Act and what action it will take to protect other species.
    One commenter suggested that establishing a riparian corridor might 
impact property rights because the landowner might not want a 
streamside vegetative corridor as part of the postmining land use. The 
last sentence of final Sec.  780.28(d) requires the corridor to be 
consistent with natural vegetation patterns and to adhere to the 
streamside

[[Page 93206]]

vegetative corridor requirements of final Sec.  816.57(d). As discussed 
more fully in the preamble to final rule Sec.  816.57(d)(4), there are 
exceptions to establishing a streamside vegetative corridor. To be 
consistent with final rule Sec. Sec.  780.28(d) and 816.57(d), if a 
landowner does not consent to establishing a streamside vegetative 
corridor and none of the exceptions identified in final rule Sec.   
816.57(d)(4) are applicable, mining may not take place in or through a 
stream or on the surface of lands within 100 feet of a stream.
    Several commenters objected to establishing a corridor along 
ephemeral streams. As discussed above, we are retaining the requirement 
to establish a streamside vegetative corridor for all streams, 
including ephemeral streams. However, because we have moved the 
permitting requirement for ephemeral streams to new Sec.  780.27(c), we 
address comments specific to permit application requirements for mining 
in, through, or adjacent to ephemeral streams in the preamble to that 
paragraph.
    We have moved the specific 100-foot streamside vegetative corridor 
standards and the exceptions to these requirements, initially placed in 
Sec.  780.28(b)(3)(ii) and (iii),which prescribe permitting 
requirements to the performance standards of Part 816. We acknowledge 
that the permittee is obligated only to include a plan to establish a 
vegetated streamside corridor at the permitting stage. Although the 
sufficiency of the plan should be assessed in accordance with the 
requirements of final rule Sec.  816.57(d), the adequacy of the 
streamside vegetative corridor is assessed after mining is complete and 
the corridor is constructed. The regulatory authority will assess the 
adequacy of the streamside vegetative corridor prior to bond release. 
Therefore, these requirements are more appropriately characterized as 
performance standards and are now in final rule paragraphs (d)(2) 
through (4) of Sec.  816.57. Because of this relocation, we discuss 
comments specifically related to the exceptions proposed in Sec.  
780.28(b)(3)(iii) in the preamble to Sec.  816.57(d)(4).
Final Paragraph (e): What demonstrations must I include in my 
application if I propose to conduct activities in or within 100 feet of 
a perennial or intermittent stream?
    Similar to the proposed rule, final paragraph (e) generally 
prohibits mining in or near streams, but allows the permittee to 
conduct certain mining activities when the permittee demonstrates 
specific criteria. Some commenters supported this approach, emphasizing 
that this will protect fish and wildlife habitat and encourage 
``beneficial remining'' techniques. Final paragraph (e) sets out the 
specific demonstrations that a permittee must include in a permit 
application if mining is proposed in or within 100 feet of a perennial 
or intermittent stream. In proposed paragraph (c) we explained the 
requirements to be satisfied when mining through or diverting a 
perennial, intermittent or ephemeral stream. In proposed paragraph (d), 
we explained the requirements to be satisfied when an applicant 
proposed to construct an excess spoil fill or coal mine waste disposal 
facility in a perennial or intermittent stream. Many commenters 
remarked that proposed paragraphs (c) and (d) were confusing because it 
was difficult to discern what demonstrations were necessary for mining 
through or diverting a stream and what additional demonstrations were 
required for constructing excess spoil fills or coal mine waste 
disposal facilities in a stream. Additionally, many commenters 
expressed confusion about mixed references to ephemeral streams, 
stating they could not differentiate when the demonstrations applied to 
perennial and intermittent streams only and when the required 
demonstrations applied to all streams. In consideration of these 
comments, we have consolidated into final paragraph (e) the 
demonstration requirements for intermittent and perennial streams that 
were in proposed paragraphs (c) and (d). To correspond with these 
changes, we have revised the title of this paragraph to encompass all 
proposed mining activities in or within 100 feet of a perennial or 
intermittent stream, not just the diversion of streams and placement of 
excess spoil fill or coal mine waste disposal facilities. In addition 
to the consolidation of proposed paragraphs (c) and (d) into final 
paragraph (e), we modified these provisions in response to comments, 
including comments from other federal agencies. These modifications 
include removal of references to ephemeral streams. As discussed above, 
we have consolidated the permitting requirements related to ephemeral 
streams and have moved them to final rule Sec.  780.27. We also discuss 
other modifications to final paragraph (e) below.
    One commenter considered any prohibition on mining in intermittent 
and perennial streams to be contrary to SMCRA. These commenters 
asserted that section 515(b)(10) \482\ requires only that ``damage be 
minimized,'' which the commenter alleges is different than the 
prevention of damage from mining in or through streams. We recognize 
that section 515(b)(10) of SMCRA \483\ requires that the permittee 
conduct surface mining operations to minimize disturbance to the 
prevailing hydrologic balance at the mine site and associated offsite 
areas, but section 510(b)(3) of SMCRA \484\ forbids the issuance of a 
surface mining permit if the regulatory authority cannot find that the 
proposed operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area. Scientific literature, 
studies, and examples of SMCRA-permitted sites demonstrate that, unless 
carefully designed, mining activities in or through streams can 
increase the potential for material damage to the hydrologic balance 
outside the permit area.\485\ Contrary to the commenter's assertions, 
the required demonstrations set forth in proposed paragraphs (b), (c), 
and (d), and in final paragraph (e) are not a blanket prohibition on 
mining in these areas. Rather, final paragraph (e)(1) contains the 
findings required to ensure that, among other things, the proposed 
operation is designed to minimize the disturbance to the prevailing 
hydrologic balance at the mine site and prevent material damage to the 
hydrologic balance outside the permit area. These carefully crafted 
requirements balance environmental protection and responsible 
extraction of coal.
---------------------------------------------------------------------------

    \482\ 30 U.S.C. 1265(b)(10).
    \483\ Id.
    \484\ 30 U.S.C. 1260(b)(3).
    \485\ See Margaret A. Palmer, Reforming watershed restoration: 
Science in need of application and applications in need of science. 
Estuaries and Coasts 32(1): 1-17 (2009). Margaret A. Palmer, & Emily 
S. Bernhardt, Mountaintop Mining Valley fills and Aquatic 
Ecosystems: A Scientific Primer on Impacts and Mitigation 
Approaches. Working paper. (2009). Margaret A. Palmer, et al. 
Mountaintop Mining Consequences. Science 327(5962): 148-149 (2010). 
U.S. Dep't. of the Interior, U.S. Geological Survey, David J. 
Wangsness, Reconnaissance of stream biota and physical and chemical 
water quality in areas of selected land use in the coal mining 
region, southwestern Indiana, 1979-80, Open File Report 82-566 
(1982). U.S. Dep't. of the Interior, U.S. Geological Survey, David 
J. Wangsness et al., Hydrology of area 30, eastern region, Interior 
Coal Province, Illinois and Indiana Open File Report 82-1005 (1983); 
U.S. Dep't of Interior, U.S. Geological Survey, David J. Wangsness, 
et al., Hydrology of area 32, Eastern Region, Coal Province, Indiana 
Open File Report 81-498 (1981). https://pubs.usgs.gov/of/1981/0498/report.pdf.
---------------------------------------------------------------------------

    For clarity, we have included a table in final paragraph (e)(1) 
that identifies, by type of activity, the demonstrations that must be 
made as part of the permit application if the applicant proposed to 
conduct mining activities in or through a perennial or intermittent 
stream or on the surface of land within 100 feet of a perennial or 
intermittent stream. For

[[Page 93207]]

clarity, this preamble discussion refers to each column of the table by 
column number as shown below:

----------------------------------------------------------------------------------------------------------------
                  1                               2                        3                        4
----------------------------------------------------------------------------------------------------------------
            Demonstration                                               Activity
----------------------------------------------------------------------------------------------------------------
                                       Any activity other than  Mining through or        Construction of an
                                        mining through or        permanently diverting    excess spoil fill,
                                        permanently diverting    a stream.                coal mine waste refuse
                                        a stream or                                       pile, or impounding
                                        construction of an                                structure that
                                        excess spoil fill,                                encroaches upon any
                                        coal mine waste refuse                            part of a stream.
                                        pile, or impounding
                                        structure that
                                        encroaches upon any
                                        part of a stream.
----------------------------------------------------------------------------------------------------------------

    As discussed separately in each paragraph several exceptions exist. 
Generally, permits subject to approved mining programs that expressly 
prohibit all surface mining activities in or within 100 feet of 
perennial or intermittent streams, as discussed in final paragraph (i) 
of this section, and similarly final Sec.  816.57(i) are exempt from 
final paragraph (e) because all activity is prohibited.
    Within the final rule we also allow certain exceptions applicable 
to permanent impoundments as specified in final paragraph (e)(4) and 
for streams that are considered intermittent due to low flowing springs 
and seeps as prescribed in final rule paragraph (e)(5).
    A commenter contended that the proposed rule conflicted with page 
ES-19 of the DEIS, which stated that the preferred alternative ``would 
allow mining through any type of stream provided the applicant 
satisfactorily demonstrates to the regulatory authority'' that ``the 
hydrological form and ecological function of the affected stream 
segment could and would be restored using the techniques in the 
proposed reclamation plan.'' The commenter misquotes the DEIS. The DEIS 
describes Alternative 8, the Preferred Alternative, at page ES-19, and 
describes the demonstrations prescribed by proposed paragraph 
(c)(2)(ii) through (iv), which set out additional requirements 
applicable to permittees that propose to mine through or divert a 
perennial or intermittent stream. However, the four demonstrations 
prescribed by proposed paragraph (b)(2)(i) through (iv), that were 
prerequisites for satisfying proposed paragraphs (c)(2)(ii) through 
(iv), were also explained in the DEIS at page ES-19. The chart we have 
added to the final rule in paragraph (e)(1) should eliminate confusion. 
It explains each of the demonstrations required for each type of 
proposed mining activity and there are no longer incorporations by 
reference, which may have been a source of confusion to the commenter.
    The chart differentiates between three categories of mining 
activities: Mining through or permanently diverting a stream, 
identified in column 3; construction of an excess spoil fill, coal mine 
waste refuse pile, or impounding structure that encroaches upon any 
part of a stream, identified in column 4; and any activity other than 
the activities identified in columns 3 and 4. This third category of 
activities is identified in column 2. The permittee must make the 
demonstrations listed in column 1 if there is a ``Yes'' in the column 
for the type of activity the applicant is proposing to conduct. For 
example, if an applicant seeks to mine through or permanently divert a 
stream, it must make the following demonstrations listed in column 1, 
subject to the exceptions provided in the chart: 
(i),(ii),(iii),(iv),(v),(vii),(viii),(ix),(x). Column 2 of the chart, 
which governs any activity other than mining through or permanently 
diverting a stream and construction of an excess spoil fill, coal mine 
waste refuse pile, or impounding structure that encroaches upon any 
part of a stream, correlates to the provisions of proposed paragraph 
(b)(2). Column 3 of the chart about mining through or permanently 
diverting a stream correlates to the provisions of proposed paragraph 
(c). Column 4 of the chart, about construction of an excess spoil fill, 
coal mine waste refuse pile, or impounding structure that encroaches 
upon any part of a stream, correlates to proposed paragraph (d). Each 
of the demonstrations, identified as paragraphs (i) through (xiii), is 
discussed below to the extent they were modified or were the subject of 
comment.
    Proposed paragraphs (b)(2)(i) through (iv) set forth the general 
demonstrations necessary when a permittee proposes to mine in or near 
perennial or intermittent streams. Although we have moved the 
paragraphs to final paragraph (e), we have retained these 
demonstrations with modifications. For example, in response to comments 
received from another federal agency we modified proposed paragraphs 
(b)(2)(i) and (iii), now final paragraph (e)(1)(i), to provide that any 
proposed activity would not cause or contribute to the violation of any 
applicable water quality standards adopted pursuant to section 303(c) 
of the Clean Water Act,\486\ or other applicable state or tribal water 
quality standards. This revision clarifies that the permittee must 
prevent all water quality violations and eliminates any confusion that 
the term ``designated use'' may have caused in the proposed rule.
---------------------------------------------------------------------------

    \486\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    In final rule paragraph (e)(1)(ii) we retain the requirement in 
proposed paragraph (b)(2)(iv) that proposed operations will not ``cause 
material damage to the hydrologic balance outside the permit area.'' 
Additionally, in response to a comment from another federal agency, we 
have added the requirement that the proposed activity also must not 
``upset the dynamic near equilibrium of streams outside the permit 
area.'' As provided in the chart in column 4, the permittee must also 
demonstrate this requirement if proposing to construct an excess spoil 
fill, coal mine waste refuse pile, or impounding structure that 
encroaches on any part of a stream. This is consistent with our revised 
definition of material damage to the hydrologic balance outside the 
permit area and the requirements of section 515(b)(22) of SMCRA about 
the placement of excess spoil.\487\
---------------------------------------------------------------------------

    \487\ 30 U.S. C. 1265(b)(22).
---------------------------------------------------------------------------

    Proposed paragraph (b)(2)(ii), required that the permittee 
demonstrate that the mining activity would not result in conversion of 
a stream segment from intermittent to ephemeral, from perennial to 
intermittent, or from perennial to ephemeral. This requirement did not 
apply to excess spoil fills or coal mine waste facilities. As discussed 
more comprehensively in the explanation of final paragraph (e)(2), 
below, we have modified this

[[Page 93208]]

demonstration by requiring two separate findings. The first finding, as 
prescribed in final paragraph (e)(1)(iii), requires the permittee to 
demonstrate that when proposing to conduct any activity in or through 
an intermittent or perennial stream, with the exception of the 
construction of excess spoil fill, coal mine waste refuse piles, or 
impounding structures, the permittee will not convert the affected 
stream segment from a perennial to ephemeral stream. We received many 
comments in support of prohibiting conversion of perennial to ephemeral 
streams. The commenters, including another federal agency, cited the 
significance of heightened biodiversity in perennial streams as 
rationale for precluding conversion. We agree and have modified the 
final rule. Final paragraph (e)(1)(iii) prohibits converting an 
affected stream segment from perennial to ephemeral.
    The second finding derived from proposed (b)(2)(ii), now final 
paragraph (e)(1)(iv), requires that a permittee demonstrate that the 
proposed activity would not result in conversion of the affected stream 
segment from intermittent to ephemeral or from perennial to 
intermittent, except when the applicant proposes to construct an excess 
spoil fill, coal mine waste refuse pile, or impounding structure that 
encroaches upon any part of a stream. As set forth in Column 3, final 
paragraph (e)(2) does allow limited exceptions, which we explain below, 
in the discussion of final paragraphs (e)(2) and (e)(5).
    Final paragraph (e)(1)(v) is similar to proposed paragraph 
(b)(2)(ii). However, we have modified the final rule to require the 
permittee to demonstrate that ``there is no practicable alternative'' 
that would avoid mining through or diverting a perennial or 
intermittent stream. The final rule deviates from the proposed rule, 
which required the permittee to demonstrate ``that there is no 
reasonable alternative'' that would avoid mining through or diverting a 
perennial or intermittent stream when the permittee proposed to mine 
through or divert a perennial or intermittent stream. We determined 
that use of the phrase ``no reasonable alternative'' was not 
sufficiently precise; therefore we replaced the term. The analysis of 
practicable alternatives will identify whether an alternative is 
capable of being accomplished. For example, an applicant's 
unwillingness to pursue an alternative does not render it infeasible. 
Similarly, increased costs do not necessarily render an alternative 
infeasible. In the final rule, the applicant must demonstrate, and the 
regulatory authority must agree, that there is no ``practicable 
alternative'' to mining through or diverting the stream. The 
replacement of the term ``no reasonable alternative'' with the term 
``no practicable alternative'' is consistent with other demonstration 
standards found in the proposed and final rule, such as paragraph 
(d)(ii), now paragraph (e)(1)(vi). Moreover, the use of the term 
``practicable'' more closely tracks the requirements of section 
515(b)(24) of SMCRA.\488\ One commenter asserted that the proposed 
requirement was contrary to SMCRA and was duplicative of and in 
conflict with both section 404 of the Clean Water Act, which requires 
avoidance, minimization, and mitigation of impacts, and the Clean Water 
Act section 404(b)(1) alternatives analysis.\489\ We disagree for 
several reasons. SMCRA requires that the permittee minimize 
disturbances to the prevailing hydrologic balance on the mine site 
\490\ and this demonstration is necessary to determine if the operation 
would, in fact, be minimizing the disturbance to the prevailing 
hydrologic balance. Similarly, this requirement is an appropriate means 
of obtaining the background data and analyses that both the applicant 
and the regulatory authority need to make informed decisions about 
compliance with the requirements of sections 515(b)(24) and 516(b)(11) 
of SMCRA, both of which require the minimization of disturbances to 
fish, wildlife, and related environmental values and the enhancement of 
such resources where practicable.\491\
---------------------------------------------------------------------------

    \488\ 30 U.S.C. 1265(b)(24).
    \489\ 33 U.S.C. 1344(b)(1).
    \490\ 30 U.S.C. 1265(b)(10).
    \491\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

    As prescribed by column 3, final paragraph (e)(1)(v) does not apply 
to specific intermittent streams as identified in final paragraph 
(e)(3) because the permittee must make different demonstrations for 
these types of streams. We explain the exceptions for these streams in 
the discussion of final paragraph (e)(3).
    Final paragraph (e)(1)(vi) applies when a permittee proposes to 
construct an excess spoil fill, coal mine waste refuse pile, or 
impounding structure that encroaches upon any part of perennial or 
intermittent stream. The permittee must evaluate ``all potential upland 
locations, including abandoned mine lands and unreclaimed bond 
forfeiture sites'' and demonstrate that there is no practicable 
alternative that would avoid placement of excess spoil or coal mine 
waste in a perennial or intermittent stream. Proposed paragraph 
(d)(2)(ii) imposed a similar requirement that we have modified in 
response to comment. In the final rule, we have clarified that ``upland 
locations in the vicinity of the proposed operation'' includes 
abandoned mine lands and unreclaimed bond forfeiture sites. The term 
``vicinity'' will be determined by the regulatory authority on a case-
by-case basis. One commenter suggested that we alter the final rule to 
include ``abandoned underground mines'' after ``upland locations'' to 
increase the likelihood of selecting an alternative that reduces excess 
spoil placement or coal mine waste disposal in a perennial or 
intermittent stream and instead places it in an already disturbed area. 
Selective placement may aid in reclamation of another site. We agree 
with the commenter's rationale and are modifying final paragraph 
(e)(1)(vi) to add, ``including abandoned mine lands'' of all types, not 
only ``abandoned underground mines'' and ``unreclaimed bond forfeiture 
sites.'' The types of sites we listed are only two examples of the 
kinds of sites that the permittee should consider: This list is not 
exhaustive. However, we caution that although using abandoned 
underground mines may serve as a solution for avoiding above ground 
placement of excess spoil or coal mine waste, this solution may not 
always be practicable because of additional costs and permitting 
requirements and the burden of satisfying the other regulatory 
requirements related to these practices, including section 816.41, 
which prescribes the requirements for discharging water and other 
materials into an underground mine.
    Another commenter suggested that we add the phrase, ``or reduce the 
extent of'' to proposed paragraph (d)(2)(ii), now paragraph (e)(1)(vi), 
so that it would read: ``[a]fter evaluating all potential upland 
locations in the vicinity of the proposed operation, there is no 
practicable alternative that would avoid or reduce the extent of 
placement of excess spoil or coal mine waste in a perennial or 
intermittent stream.'' The commenter alleged that the additional 
language is necessary to effectively communicate that the demonstration 
must decrease the amount of placement of excess spoil or coal mine 
waste. The commenter opined that the proposed phrase would clarify our 
proposed rule and prevent the permittee from placing any portion of the 
material in a perennial or intermittent stream. We agree with the 
commenter's assertion that construction of excess spoil fills, coal 
mine waste refuse piles, or encroachment of impounding structures

[[Page 93209]]

upon streams are permissible only when, among other criteria, no 
practicable alternative for placement in the vicinity exists, and that 
the permittee must minimize perennial and intermittent stream 
disturbance. However, we find the addition of the phrase ``or reduce 
the extent of'' limiting and not as protective. In the final rule we 
are retaining the term ``avoid.'' Merriam Webster's dictionary defines 
``avoid'' as ``keep away from.'' \492\ This term is more consistent 
with section 515(b)(10) of SMCRA \493\ which requires permittees to 
minimize disturbances to the prevailing hydrologic balance.
---------------------------------------------------------------------------

    \492\ Avoid. 2016. In Merriam-Webster. Retrieved Nov. 10, 2016 
from www.merriam-webster.com/dictionary/avoid.
    \493\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    Final paragraph (e)(1)(vii) requires the permittee to demonstrate 
that the proposed operation has been designed to minimize the extent to 
which the permittee will mine through or divert perennial and 
intermittent streams or cover streams by an excess spoil fill, coal 
mine waste refuse pile, or a coal mine waste impounding structure. The 
permittee must apply this minimization analysis after it makes the 
alternatives analysis required by final paragraph (e)(1)(v), discussed 
above. This demonstration is similar to the requirements in proposed 
paragraphs (c)(2)(iii), relating to mining through or diverting a 
perennial or intermittent stream, and (d)(2)(iii)(A), relating to 
construction of an excess spoil fill or a coal mine waste facility. 
Because of the format of our chart in final paragraph (e)(1) and the 
similarity between the requirements we have combined the demonstrations 
in the final rule. However, as prescribed by Column 3, this requirement 
does not apply to perennial or intermittent streams with a degraded 
form because the permittee must make different demonstrations for these 
types of streams. Furthermore, this final paragraph does not apply to 
streams that are considered intermittent due to low flowing springs and 
seeps as prescribed in final rule paragraph (e)(5) because again, 
different demonstrations are required.
    Final paragraph (e)(1)(viii) requires the permittee to demonstrate 
that the stream restoration techniques prescribed in the proposed 
reclamation plan are adequate to ensure restoration or improvement of 
the form, hydrologic function, dynamic near-equilibrium, streamside 
vegetation, and ecological function of the stream after it has been 
mined through or permanently diverted. However, as prescribed by Column 
3, this requirement does not apply to perennial or intermittent streams 
with a degraded form because the permittee must make different 
demonstrations for these types of streams. Furthermore, this final 
paragraph does not apply to streams that are considered intermittent 
due to low flowing springs and seeps as prescribed in final rule 
paragraph (e)(5) because again, different demonstrations are required.
    Final paragraph (e)(1)(viii) is similar to proposed paragraph 
(c)(2)(iv), but we modified the final rule after considering comments 
and to conform to other final rule changes. For example, the final rule 
requires the permittee to restore or improve the hydrologic function. 
One commenter recommended that the final rule require a permittee to 
restore ``stream function in addition to hydrologic form'' to ensure 
the final rule fully protects the essential elements of stream health. 
In support, the commenter noted that current scientific literature 
indicates that a stream's form is generally not a proxy for its 
function. We agree. Although we mentioned ``form'' in the proposed 
rule, which we intended to include hydrologic form, many other 
commenters were confused by the term ``hydrologic form.'' We have 
eliminated that term and added a definition of ``hydrologic function'' 
to the final rule to emphasize the importance of the role streams play 
in transport of water and flow of water within the stream channel and 
floodplain. The term ``hydrologic function'' includes total flow 
volume, seasonal variations in streamflow and base flow, and provision 
of water needed to maintain floodplains and wetlands associated with 
the stream. ``Form'' includes the physical characteristics of the 
stream and is a prerequisite of ``hydrologic function.'' The final rule 
clarifies that a permittee must demonstrate that it will restore or 
improve both the ``form'' and hydrologic function of a mined through or 
diverted stream. Another commenter opined that the demonstrations that 
stream restoration plans must restore ``form and ecological function'' 
will require a new, expansive section of the permit similar to, and 
duplicative of, a section 404 Clean Water Act permit. We disagree and 
refer the commenter to our discussion in the general comments in Part 
IV. I. We have incorporated both of these requirements, as proposed, 
into the final rule and we encourage SMCRA regulatory authorities to 
coordinate the processing of permit applications with the Clean Water 
Act authority to avoid any potential for duplication.
    This paragraph of the final rule also requires the permittee to 
demonstrate the requirements in proposed paragraph (b)(3), now final 
paragraph (d), about establishment of streamside vegetation when 
proposing to mine through or permanently divert a perennial or 
intermittent stream. One commenter recommended that we require 
establishment of a 100-foot forested buffer on either side of stream 
for excess spoil piles and coal waste disposal facilities. We disagree. 
Final paragraph (e)(1)(viii) specifically exempts excess spoil piles 
and coal waste disposal areas from this demonstration because the 
streams beneath them no longer exist, and the stormwater conveyances 
constructed in conjunction with the structures are not reconstructed 
streams. As discussed in final paragraph, (e)(5), permittees do not 
have to make the demonstration required in final paragraph (e)(1)(viii) 
for streams that are considered intermittent due to low flowing springs 
and seeps because different demonstrations are required.
    Final paragraph (e)(1)(ix) requires the applicant to demonstrate 
that it has designed the proposed excess spoil fill, coal mine waste 
refuse pile, or impounding structure that encroaches upon any part of a 
stream to minimize the amount of excess spoil or coal mine waste the 
proposed operation will generate. We proposed that the permittee make 
this demonstration in proposed paragraph (d)(2)(i) and explained the 
proposed demonstration in the preamble.\494\ One commenter contended 
that our reference to filter presses in the preamble to the proposed 
rule exhibits a preference for employing filter presses to reduce the 
generation of coal mine waste. This is an erroneous interpretation. 
Filter presses were listed as one of several examples of minimization 
processes that could be used by a permittee and should not be viewed as 
a preference or the only option.
---------------------------------------------------------------------------

    \494\ 80 FR 44436, 444517 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Many commenters supported proposed paragraph (d)(2)(i), citing the 
increased level of stream protection compared to our previous 
regulations. We appreciate these comments and are adopting proposed 
paragraph (d)(2)(i), now paragraph (e)(1)(ix), with minor adjustments. 
As reflected in the chart found in paragraph (e)(1) of the final rule, 
we have added references in columns 2 and 3 to final rule Sec.  
780.35(b), which governs minimization of excess spoil. These references 
operate to remind any permittee proposing to engage in any activity in, 
through, or adjacent to a perennial or intermittent stream that, in 
demonstrating that it will minimize

[[Page 93210]]

excess spoil, it must provide supporting calculations and other 
documentation of the design that it adopts to achieve minimization.
    Final paragraph (e)(1)(x) requires that a permittee proposing to 
engage in any activity in, through, or adjacent to a perennial or 
intermittent stream must demonstrate that the proposed operation is 
designed, ``to the extent possible using the best technology currently 
available'', to minimize adverse impacts on fish, wildlife, and related 
environmental values. We required this demonstration in proposed 
paragraph (d)(iii)(A). However, as proposed it was applicable only when 
a permittee proposed to construct an excess spoil fill or coal mine 
waste disposal facility. Although we intended this requirement to apply 
to all activities in, through, or adjacent to perennial or intermittent 
streams, we did not articulate this requirement clearly in the proposed 
rule. Therefore, we have clarified the final rule to accurately express 
our intent. This clarification more accurately tracks the requirements 
of section 515(b)(24) of SMCRA,\495\ which applies to any permit issued 
under any approved State or Federal program.\496\
---------------------------------------------------------------------------

    \495\ 30 U.S.C. 1265(b)(24).
    \496\ 30 U.S.C. 1265(a).
---------------------------------------------------------------------------

    Final paragraph (e)(1)(xi) requires a permittee that proposes 
construction of an excess spoil fill, coal mine waste facility, or 
impounding structure that encroaches upon any part of a stream to 
demonstrate that the fish and wildlife enhancement plan required in 
final rule Sec.  780.16 includes measures that will fully and 
permanently offset any long-term adverse impacts on fish, wildlife, and 
related environmental values within the footprint of the fill, refuse 
pile or impoundment. We imposed this requirement in paragraph 
(d)(2)(iv) of the proposed rule, but we invited comment seeking 
suggestions for more specific standards or criteria for determining the 
meaning of ``fully and permanently offset.'' \497\ Some commenters 
considered the term ``fully and permanently offset'' to be vague, but 
offered no clarification or alternative. In contrast, another commenter 
expressed its full endorsement of this phrase. Because we received no 
practicable alternative for standards or criteria for determining the 
meaning of ``fully and permanently offset,'' we have adopted the 
requirement as proposed with the exception of the redesignation. The 
regulatory authority will have some discretion to determine, on a case-
by-case basis, whether the permittee has achieved the ``fully and 
permanently offset'' requirement.
---------------------------------------------------------------------------

    \497\ 80 FR 44436, 44518 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In addition to the comments in response to our invitation for 
comment we received many other comments on this proposed paragraph. 
Another commenter expressed concern that the requirement may create a 
duplicative mitigation requirement if excess spoil fill or coal mine 
waste disposal facilities are built in waters within the jurisdiction 
of the Clean Water Act. We disagree. We expect the SMCRA and the Clean 
Water Act regulatory authority to coordinate to ensure the selection of 
the appropriate fish and wildlife enhancement plan, to achieve a 
solution that satisfies the requirements of both SMCRA and the Clean 
Water Act. The same commenter expressed concern that the proposed 
paragraph included the term ``related environmental values,'' which in 
the commenter's opinion creates a duplicative mitigation requirement. 
The language of SMCRA expressly requires that the regulatory authority 
consider ``fish, wildlife, and related environmental values.'' \498\
---------------------------------------------------------------------------

    \498\ Id.
---------------------------------------------------------------------------

    Another commenter questioned the statement in the preamble to 
proposed rule section 816.71 that referred to proposed rule Sec.  
780.28, where we explained that we do not consider surface runoff 
diversions constructed under Sec.  816.71(e) to qualify as fish and 
wildlife enhancement measures pursuant to the requirements of Sec.  
780.16(d).\499\ By their very nature, however, these diversions are 
channelized surface water runoff conveyances, and their design and 
construction do not include measures intended to provide any form of 
habitat; therefore, they would not qualify as a type of enhancement 
that would ``fully and permanently'' offset the long-term adverse 
effects of placement of excess spoil or coal mine waste facilities. We 
are therefore not changing the rule in response to this comment.
---------------------------------------------------------------------------

    \499\ 80 FR 44436, 44556 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Another commenter alleged that proposed paragraph (d)(2)(iv), now 
paragraph (e)(1)(xi), inappropriately introduces a backdoor requirement 
for the establishment of a riparian corridor even though the proposed 
regulatory text about the establishment of a riparian corridor does not 
apply to coal mine waste disposal facilities and placement of excess 
spoil. The commenter misinterprets the proposed rule. If an applicant 
proposes an excess spoil fill or a coal mine waste disposal facility in 
an intermittent or perennial steam, the regulatory authority is obliged 
to ensure the fish and wildlife enhancement plan contains measures to 
fully and permanently offset any long-term adverse impacts within the 
footprint of the fill, refuse pile, or coal mine waste impoundment on 
fish, wildlife, and related values. We are not prescribing the 
enhancement measures that the permittee must select, although we do 
list potential enhancement measures in Sec.  780.16(d). One potential 
enhancement measure in final rule Sec.  780.16(d)(2)(v), proposed 
paragraph (d)(1)(v), is a vegetative corridor enhancement. In the 
preamble to the proposed rule, we recommended that, if that option is 
selected, the regulatory authority should consider the creation of a 
conservation easement to ensure that the enhancement is fully and 
permanently offsetting the impacts of the fill, refuse pile, or coal 
waste impoundment and that the newly planted vegetation is not 
destroyed at bond release. We did not mandate the selection of 
vegetative corridor enhancement or the use of conservation easements. 
We merely suggested these selections as options for enhancement 
measures. Other enhancement measures are permissible; thus, there is no 
backdoor requirement, and we have made no revisions to the final rule 
based on this comment.
    Final paragraph (e)(1)(xii) requires a permittee to demonstrate 
that each excess spoil fill, coal mine waste refuse pile, and coal mine 
waste impounding structure it proposes to construct is designed in a 
manner that will not result in formation of toxic mine drainage. This 
demonstration was required in proposed paragraph (d)(2)(v); however, it 
was combined with another demonstration which is now required by final 
paragraph (e)(1)(i). For clarity we have separated these demonstrations 
in the final rule.
    Final paragraph (e)(1)(xiii) requires that a permittee demonstrate 
compliance with the revegetation plan required under final rule Sec.  
780.12(g), which requires reforestation of each completed excess spoil 
fill if the land is forested at the time of the application or if the 
land would revert to forest under the conditions of natural succession. 
This demonstration is intended to minimize the adverse impacts of the 
fill on watershed hydrology, especially the quantity and quality of 
surface runoff, and aquatic life in the stream. We proposed this 
demonstration at paragraph (d)(vi), and are finalizing it, with the 
exception of the redesignation, as proposed.
    Under the provisions in final paragraph (e)(2), a permittee may 
propose to convert a minimal portion of a segment of an intermittent 
stream

[[Page 93211]]

within the mined area to an ephemeral stream. The regulatory authority 
may approve the permittee's proposal if the permittee demonstrates and 
the regulatory authority finds that converting any portion of the 
intermittent stream will not degrade the hydrologic function, dynamic 
near-equilibrium, or the ecological function of the stream as a whole 
within the mined area. The regulatory authority must make this 
determination by comparing the proposed action to the baseline stream 
assessment conducted under Sec.  780.19(c)(6).
    This is a revision to our proposed rule. In the proposed rule at 
paragraph (b)(2)(ii), we required a permittee to demonstrate that any 
mining activity in or through a perennial, intermittent, or ephemeral 
stream, with the exception of constructing an excess spoil fill or coal 
mine waste facility, would not ``result in conversion of the stream 
segment from intermittent to ephemeral, from perennial to intermittent, 
or from perennial to ephemeral.'' \500\ We received many comments 
opposing the proposed prohibition on stream conversions. For example, 
one commenter asserted that the prohibition on converting an 
intermittent stream to an ephemeral stream may preclude mining in many 
areas. This regulatory authority commenter asserted that converting 
stream types, should be based on compliance with water quality 
standards, designated uses, approved land uses, or other permit 
requirements instead of, what it opines as an arbitrary requirement. We 
agree. In the final rule, a portion of an intermittent stream may be 
converted to an ephemeral stream if a permittee can demonstrate and the 
regulatory finds that the permittee will not degrade the hydrologic or 
ecological function of the stream as a whole within the mined area. The 
compliance factors enumerated by the regulatory authority commenter 
should be included when demonstrating to the regulatory authority that 
no hydrologic or ecological function will be degraded and to satisfy 
the requirements of section 800.42 related to bond release. 
Additionally, in certain circumstances, a seep may create short 
segments of an intermittent stream in an otherwise ephemeral stream. 
This is an issue in certain areas, such as North Dakota. Therefore, we 
have created an exception to final paragraph (e)(2)(i) for this limited 
circumstance. The exception is enumerated at final rule paragraph 
(e)(2)(ii), by specifically exempting the circumstances more fully 
described in final rule Sec.  780.28(e)(5).
---------------------------------------------------------------------------

    \500\ 80 FR 44436, 44610 (Jul. 27, 2015).
---------------------------------------------------------------------------

    A commenter questioned why converting an intermittent to an 
ephemeral stream may be permissible but converting a stream in the 
opposite manner, such as from an intermittent to a perennial stream or 
an ephemeral to an intermittent stream was not restricted in the 
proposed rule. The commenter is correct in that we do not require a 
permittee to demonstrate that the conversion of a stream from ephemeral 
to intermittent or intermittent to perennial would not degrade the 
hydrologic function or the ecological function. We have not restricted 
this type of conversion because the same processes that create streams 
that lose water as it flows downstream resulting in a conversion from 
intermittent to ephemeral and perennial to intermittent does occur in 
the opposing direction. Streams may gain flow after reclamation when 
increases in water volume contribute to, rather than diminish, the 
flow. This additional contribution of flow comes from infiltrated water 
exiting the backfill. The gaining stream now maintains flow throughout 
the year and develops physical features, including for example, an 
altered bed-and-bank that result in a classification of a stream as 
intermittent or perennial. Prior to mining, the same stream may have 
been classified as an intermittent or ephemeral stream because of the 
lack of certain physical features and the brief duration of flow. The 
reclassified stream with greater flow has beneficial characteristics, 
such as a potential increase in both the diversity and abundance of 
aquatic species and the potential to add more varied uses, especially 
recreational uses. Additionally, streams that gain flow can result in 
improved habitat especially if coupled with stream flow throughout the 
seasons. Moreover, converting an intermittent stream to a perennial 
stream or an ephemeral stream to an intermittent stream promotes a more 
productive and varied aquatic life as long as the sediment transport 
remains similar. Therefore, we do not restrict this type of 
conversion--from intermittent to perennial or from ephemeral to 
intermittent--beyond the criteria included in this section and 
Sec. Sec.  780.12 and 780.19.
    Another commenter objected to the proposed rule and argued that, as 
described in the Draft Environmental Impact Statement, it would 
preclude the conversion of any stream segment, and this complete 
restriction will effectively prohibit any mining that would directly 
impact the headwaters (or source) of an intermittent or perennial 
stream. As discussed in the introduction to final Sec.  780.28, 
temporary impacts, such as temporarily converting certain streams, are 
permissible. This is consistent with SMCRA, which allows disturbances 
to be minimized, not precluded.\501\ For this reason, we do allow 
permittees to convert intermittent to ephemeral streams as long as the 
permittee satisfies the requirements of final paragraph (e)(2). 
Similarly, another commenter claimed that prohibiting conversions of 
the upper limits of headwater streams would disproportionately affect 
Appalachian watersheds where mining in steep slopes is prevalent. The 
commenter supported this claim by noting that impacts to the location 
of the stream type transition point is likely to be most prevalent in 
steep slope environments, like Appalachia, as well as areas with thick 
overburden and low-gradient streams. We agree that conversion of 
intermittent streams to ephemeral streams is most common in areas like 
Appalachia where stream baseflow is more complex because of the 
permeability of rock strata and the presence or absence of fractures in 
the strata. Further, following mining the backfill is no longer 
stratified and, although reconstructed intermittent streams can be 
engineered to resemble premining characteristics, it is not realistic 
to expect that they can be precisely reproduced. Therefore, to prevent 
the disproportionate impact the commenter describes, some conversion 
must be allowed. Therefore, final paragraph (e)(2) allows for 
differences in geology and hydrology nationwide.
---------------------------------------------------------------------------

    \501\ 30 CFR 1265(b)(10) and (b)(24).
---------------------------------------------------------------------------

    Another commenter questioned why we would authorize converting a 
perennial stream to an ephemeral stream, but not allow an intermittent 
stream to be converted to an ephemeral stream. As explained in the 
discussion of final paragraph (e)(1)(iii), permittees may not convert a 
perennial stream to an ephemeral stream, but permittees may, in 
specific circumstances, convert a minimal portion of a mined-through 
segment of an intermittent stream to an ephemeral stream. SMCRA allows 
minimized disturbances to the quality and quantity of surface water and 
groundwater both during and after surface coal mining.\502\ In the 
final rule we clarify that a permittee may effect these stream 
conversions only after demonstrating that the hydrologic function and 
the ecological function of the stream segment as a whole, within the 
permit, will not be degraded. To ensure the hydrologic function and 
ecological function will not be

[[Page 93212]]

degraded, the regulatory authority must examine and compare the 
baseline stream assessment data collected as required by final rule 
Sec.  780.19(c)(6). We discuss this data fully in the preamble to final 
rule Sec.  780.19(c)(6). We discuss the requirements for restoring 
ecological function in connection with final paragraph (g), below. As 
explained in final rule Sec.  780.28(e)(2), allowing a permittee to 
convert a minimal segment of specific stream types satisfies the 
requirements of sections 515(b)(10) and 515(b)(24) of SMCRA because 
disturbances to the prevailing hydrologic balance are minimized and the 
permittee is required to employ the best control technology currently 
available to minimize disturbances to fish, wildlife, and related 
environmental values.\503\
---------------------------------------------------------------------------

    \502\ 30 U.S.C. 1265(b)(10).
    \503\ 30 U.S.C. 1265(b)(10) and (b)(24).
---------------------------------------------------------------------------

    Another commenter stated that the proposed rule, prohibiting stream 
conversions was highly restrictive, may strand coal, and did not 
recognize longitudinal variations in transition points, such as when 
transition points move upstream or downstream depending on 
precipitation patterns. We agree with the commenters that the proposed 
rule prohibited stream conversions and could restrict some mining. We 
also recognize that surface mining activities will, in most cases, 
lower the water table and, thus, impact the location of the stream type 
transition points which are the point where an ephemeral stream becomes 
intermittent or an intermittent stream becomes perennial. Furthermore, 
the inherent nature of mining, particularly disruption of the water 
table, makes minimal stream conversions unavoidable. We discuss points 
in support of allowing permittees to convert minimal portions of 
intermittent streams above in connection with final paragraph (e)(2).
    To incentivize operators to engage in re-mining and the associated 
improvements that occur when mining through streams exhibiting 
substantial degradation as a result of prior anthropogenic activity and 
a degraded stream channel that has resulted in substantial adverse 
impact on ecological function, we have added provisions in final 
paragraph (e)(3) for mining operations that seek to mine in, through, 
or near certain intermittent streams. This exemption is restricted to 
intermittent streams that satisfy the following criteria, as prescribed 
by final paragraph (e)(3)(ii):
     Prior anthropogenic activity has resulted in substantial 
degradation of the profile or dimensions of the stream channel; and
     Degradation of the stream channel has resulted in a 
substantial adverse impact on the ecological function of the stream.
    Implementation of these provisions is important because remining 
through these types of streams often provide environmental benefits 
including improved water quality and restored streamside vegetative 
corridors.\504\ For example, satisfying the criteria in final 
paragraphs (e)(3) will accomplish the mandate of section 515(b)(24) of 
SMCRA \505\ by minimizing disturbances to fish, wildlife, and other 
environmental values while simultaneously encouraging remining and the 
reclamation benefits that accompany mining. As explained in the chart 
in the final rule at paragraph (e)(1) and discussed above, final 
paragraphs (e)(1)(v) and(vii) provide exceptions to the demonstrations 
required in paragraph (e)(1) as long as the permittee demonstrates and 
the regulatory authority finds that implementation of the proposed 
mining and reclamation plan will satisfy five criteria. In particular, 
final paragraph (e)(3) provides exemptions from: The requirement in 
final paragraph (e)(1)(v) for a practicable alternative analysis and 
the requirement in final paragraph (e)(1)(vii) that the permittee 
minimize the extent of perennial or intermittent stream mined through. 
However, final paragraphs (e)(3)(i)(A)-(E) require a permittee 
proposing to mine through intermittent streams prescribed by final 
paragraph (e)(3)(i), to demonstrate that:
---------------------------------------------------------------------------

    \504\ See James McElfish, Jr. & Ann Beier, Environmental 
Regulation of Coal Mining: SMCRA's Second Decade 278 (1990); see 
also Pa. Dep't of Envtl. Prot., Discussion Paper on Water Quality 
Issues Related to Coal Mining (1998). U.S. Env't. Prot. Agency, 
Office of Water, Doc. No. EPA-821-B-00-002, Economic and 
Environmental Impact Assessment of Proposed Effluent Limitation 
Guidelines and Standards for the Coal Mining Industry: Remining and 
Western Alkaline Subcategories 8-1, (March 2000) (stating that ``EPA 
estimates that 38 percent to 44 percent of AML [Abandoned Mine 
Lands] acres affected by remining would experience significant 
decreases in AMD [abandoned mine drainage] pollutant levels.'').
    \505\ 30 CFR 1265(b)(24).
---------------------------------------------------------------------------

     It will improve the form of the stream segment;
     It will improve the hydrologic function or the dynamic 
near-equilibrium of the stream;
     Is likely to result in improvement of the biological 
condition, dynamic near-equilibrium or ecological function of the 
stream;
     It will not further degrade the hydrologic function, 
biological condition, or ecological function of the stream; and
     It will result in establishment of a streamside vegetative 
corridor in accordance with Sec.  816.57(d) of this chapter.
    Although not as comprehensive as the final rule, proposed Sec.  
816.57(b)(4) included a ``special provision for restoration of degraded 
stream segments.'' In this section we proposed to include a requirement 
that ``if the stream segment to be mined through or diverted is in a 
degraded condition before mining, you must implement measures to 
enhance the form and ecological function of the segment as part of the 
restoration or diversion process.'' As we explained in the preamble to 
the proposed rule,\506\ we intended the proposed provision to ensure 
that stream segments degraded by prior human activities are improved to 
the fullest extent possible, not just restored to the condition that 
existed before the current mining operation. In the proposed rule we 
did not define what qualifies as a degraded stream. Although we have 
not defined ``degraded'' as some commenters requested, we have added 
final paragraph (e)(3)(ii) to clarify that the exemption allowed by 
final paragraph (e)(3) is conditioned upon the stream displaying two 
characteristics: Prior anthropogenic activity has resulted in 
substantial degradation of the profile or dimensions of the stream 
channel and degradation of the stream channel has resulted in 
substantial adverse impact on the ecological function of the stream.
---------------------------------------------------------------------------

    \506\ 80 FR 44436, 44454 (Jul. 27, 2015).
---------------------------------------------------------------------------

    We address the comments to proposed Sec.  816.57(b)(4), about 
restoring degraded stream segments here because in final paragraph 
(e)(3), we have improved and modified proposed Sec.  816.57(b)(4), and 
placed the new requirements in final rule Sec.  780.28 because they are 
permitting requirements and not performance standards. One commenter 
suggested that permittees should restore streams to a higher quality 
than existed under premining conditions and that the actual premining 
conditions documented during baseline investigations should be a factor 
when designing and approving plans for stream restoration, but that 
this factor should not be dispositive. We agree and we have added 
language to the final rule at paragraphs (e)(3)(i)(C) and (D) to 
clarify that the permittee must consider both the biological condition 
or ecological function and hydrologic function of the stream, as 
determined by the baseline data, when designing the

[[Page 93213]]

reconstructed stream, and that it should improve streams harmed by 
anthropogenic activities, rather than return it to a similar state.
    Another commenter opined that anthropogenic activities have 
severely altered many pre[hyphen]mining stream channels and the 
resulting erosion should not be reproduced in the reclamation process. 
We agree and have modified the final rule to prevent the reproduction 
of degraded stream channels. Paragraphs (e)(3)(i)(B) through (D) 
requires a demonstration and finding by the regulatory authority that 
the design will not further degrade the hydrologic function, biological 
condition, or ecological function of the stream segment. These 
requirements, coupled with the other necessary demonstrations, are 
likely to improve the premining characteristics of the original stream 
channel to promote the recovery and enhancement of the aquatic habitat 
and the ecological and hydrologic functions of the stream.
    In response to commenters, we have added final paragraph (e)(4), 
which prescribes that the demonstrations required by final paragraph 
(e)(1) do not apply to a stream segment that will be part of a 
permanent impoundment approved and constructed pursuant to the 
requirements of final rule Sec.   816.49(b) that prescribes mandates 
for permanent impoundments.
    We received comments from a regulatory authority explaining that, 
in its experience, particularly in North Dakota, streams that are 
otherwise ephemeral can have segments that are considered intermittent 
due to low flowing springs and seeps. The commenter asserted that in 
the geographic area where it performs oversight it is common to find 
short reaches of streams that are classified as intermittent because of 
low flowing springs from shallow aquifers. According to the commenter, 
these low flowing springs often occur at the upper reaches of an 
ephemeral stream in native grasslands and the flows frequently cease 
within a few hundred feet or less from the water source. The commenter 
explained that in its experience the water is frequently saline and 
usually has little or no value as fish and wildlife habitat. 
Furthermore, the features do not have sufficient flow to serve as a 
livestock watering source by ranchers. According to the commenter, 
proposed rule Sec.  780.28(b)(2)(ii), precluding conversions of stream 
segments, from which final paragraph (e)(1)(iv) is derived, would 
essentially prohibit mining in certain areas. The commenter 
specifically referred to locations where lignite is mined because 
according to the commenter, the lignite seam is often the aquifer that 
supplies the groundwater for these low flowing springs. Therefore, the 
commenter recommended that proposed Sec.  780.28(b)(2)(ii) be modified 
to allow the conversion of an intermittent stream to an ephemeral 
stream if the conversion does not affect water uses or significant 
wildlife habitat. We have incorporated this recommendation into the 
final rule at paragraph (e)(5). This exception is designed to address 
the limited scenario described by the commenter in reference to North 
Dakota. To accommodate the scenario the commenter describes we 
prescribe in column 3 of final paragraphs (e)(1)(iv), (vii), and (viii) 
that the permittee is not required to make the requisite demonstrations 
if the following alternative demonstrations enumerated in final 
paragraphs (e)(5)(i) through (iii) are satisfied:
     The intermittent stream segment is a minor interval in 
what is otherwise a predominately ephemeral stream;
     The permittee demonstrates to the satisfaction of the 
regulatory authority that the intermittent segment has no significant 
fish, wildlife, or related environmental values, as documented by the 
stream assessment baseline data collected as required by final rule 
Sec.  780.19(c)(6); and
     The permittee demonstrates to the satisfaction of the 
regulatory authority that conversion of the intermittent stream will 
not adversely affect water uses.
    These three alternative demonstrations include the requirement that 
the permittee demonstrate that the intermittent stream segment is a 
minor interval in what is otherwise a predominately ephemeral stream.
Final Paragraph (f): What design requirements apply to the diversion, 
restoration, and reconstruction of perennial and intermittent stream 
channels?
    In addition to satisfying the requirements in paragraphs (a) 
through (e), permittees proposing to divert, restore, or reconstruct 
perennial and intermittent stream channels must also satisfy the design 
requirements prescribed in final paragraph (f). We proposed similar 
requirements in proposed paragraphs (c)(2)(v) and (vi) of Sec.  780.28, 
but we have re-designated and modified these paragraphs in response to 
comments and for clarity.
    Final paragraph (f)(1) is similar to proposed paragraph 
(c)(2)(v)(A). This paragraph applies to permanent stream-channel 
diversions, temporary stream-channel diversions that will remain in use 
for greater than three years, and stream channels reconstructed after 
the completion of mining. These structures must be designed to restore, 
approximate, or improve the premining characteristics of the original 
stream channel, to promote the recovery and enhancement of aquatic 
habitat and the ecological and hydrologic function of the stream, and 
to minimize adverse alteration of stream channels on and off the site, 
including channel deepening or enlargement. In final paragraph 
(f)(1)(ii), we have retained the requirements in proposed paragraph 
(c)(2)(v)(A) that the pertinent stream-channel characteristics include, 
but are not limited to, the baseline stream pattern, profile, 
dimensions, substrate, habitat, and natural vegetation growing in the 
riparian zone and along the banks of streams. Commenters supported 
these requirements because they make our regulations more consistent 
with similar requirements imposed under section 404 of the Clean Water 
Act and its implementing regulations. In addition to re-designating 
this section, we have also made some modifications to the final rule 
which we discuss below.
    As proposed, this section applied to temporary stream-channel 
diversions that were to remain in place for two or more years. Some 
commenters objected to the imposition of design criteria for temporary 
stream-channel diversions, proclaiming it a wasteful and nonsensical 
requirement. One of these commenters suggested that temporary 
diversions should require only temporary designs, citing the 
unpredictability of the need for temporary diversions at the time of 
permitting. The same commenter also stated that the National Pollutant 
Discharge Elimination System requirements will be in place to protect 
downstream waters and our rule would be problematic for establishment 
of long term drainage control in terms of planning and layout cost, 
extra construction time expense, and maintenance. The same commenter 
also opined that additional land disturbance will result in added and 
un-necessary negative environmental impact. These commenters suggested 
striking the requirement or modifying it in the final rule to reflect a 
longer term. While we agree that the length of time a temporary stream-
channel diversion may be in place may not be known at the time of 
permitting, we know from over thirty years of experience that many of 
these diversions are in place for significantly long periods. Further, 
if the commenters' suggestion of striking the required design criteria 
were accepted,

[[Page 93214]]

``temporary diversions'' may be constructed as little more than 
straight-lined ditches that could potentially be in place for the life 
of a permit, which may exceed decades. This outcome does not adequately 
implement the requirements of SMCRA, ``to minimize disturbances to the 
prevailing hydrologic balance at the mine-site and in associated 
offsite areas. . . .'' \507\ Therefore, we are retaining the design 
criteria. However, we did reanalyze the two year requirement and 
changed the final rule to apply to temporary stream-channel diversions 
that will remain in use for three or more years. This is a reasonable 
time frame as many smaller mines will be completed in less than three 
years. It would not be reasonable to expect a temporary stream 
diversion in place for less than three years to reestablish the stream 
biology because the diversion may not be in place for a sufficient 
period to reestablish stream biology. However, a diversion of a stream 
segment in place for more than three years, and as long as several 
decades, is capable of developing sufficient biology and should be 
constructed to ``restore, approximate, or improve the premining 
characteristics of the original stream channel. . . .''
---------------------------------------------------------------------------

    \507\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    Throughout the final rule we have removed the proposed term 
``restored'' and have replaced it with ``reconstructed'' in order to 
describe more accurately the reclamation that must occur after mining 
in or through intermittent or perennial streams. Several commenters 
stated that ``restored'' was vague because no stream that is re-created 
using the criteria in Sec.  780.28 will have the exact characteristics 
of a pristine stream. Some of these commenters opined that using the 
term ``restored'' implied an unachievable standard. We agree with the 
commenters and note that reconstructed streams may deviate from the 
premining characteristics as long as the requirements of the final rule 
are satisfied. Additionally, we have added the phrase ``or improve'' to 
final paragraph (f)(1)(i), to emphasize the importance of, and to 
encourage, mining techniques that improve existing stream channels. In 
the proposed rule we required the design to ``promote the recovery and 
enhancement of aquatic habitat.'' Promoting recovery and enhancement of 
aquatic habitat is most successfully done by promoting recovery and 
enhancement of the ``ecological and hydrologic functions of the 
stream.'' Therefore, we have included the requirement to ``restore, 
approximate, or improve'' the premining characteristics of the original 
stream channel in the final rule to more accurately reflect the 
mandates of section 515(b)(24) of SMCRA \508\ and the scientific 
literature that discusses the importance of hydrologic and ecological 
function.\509\
---------------------------------------------------------------------------

    \508\ 30 U.S.C. 1265(b)(24).
    \509\ See Lainie R. Levick et al., The Ecological and 
Hydrological Significance of Ephemeral and Intermittent Streams in 
the Arid and Semi-arid American Southwest. U.S. Envtl. Prot. Agency 
and U.S. Dep't of Agriculture ARS Southwest Watershed Research 
Center, EPA/600/R-08/134, ARS/233046, 116 p. http://www.epa.gov/esd/land-sci/pdf. Margaret A. Palmer, Reforming watershed restoration: 
Science in need of application and applications in need of science. 
Estuaries and Coasts 32(1): 1-17 (2009).
---------------------------------------------------------------------------

    For clarity, we have separated out the last paragraph of proposed 
paragraph (c)(2)(v)(A) and re-designated it as final paragraph 
(f)(1)(iii). This provision clarifies that permittees planting 
vegetation along the banks of temporary diversions in use for three or 
more years are not required to include species that would not reach 
maturity until after the diversion is removed. This will prevent 
unnecessary land disturbance and cost. In the final rule, we have 
replaced the term ``in the riparian zone'' with ``along the banks of 
the diversion'' to fully encompass all streamside vegetation. Also, as 
discussed above, we have changed ``in use for 2 or more years'' with 
``in use for 3 or more years.''
    We have retained proposed paragraph (c)(2)(v)(B), but re-designated 
it as final paragraph (f)(2). This paragraph requires the permittee to 
design all temporary and permanent stream channel diversions to ensure 
that the hydraulic capacity is at least equal to the hydraulic capacity 
of the unmodified stream channel immediately upstream from the 
diversion and no greater than the hydraulic capacity of the unmodified 
stream channel immediately downstream of the diversion. As we explained 
in the preamble to the proposed rule,\510\ this requirement will 
protect against the scouring and other adverse impacts that could 
result from a sudden constriction in channel capacity of the unmodified 
stream channel downstream of the diversion which may harm important 
habitat. This paragraph is consistent with the requirement in section 
515(b)(24) of SMCRA to minimize adverse impacts on fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available.\511\
---------------------------------------------------------------------------

    \510\ 80 FR 44436, 44517 (Jul. 27, 2015).
    \511\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Final paragraph (f)(3) adopts the design criteria for all temporary 
and permanent stream-channel diversions that were in the proposed rule 
at proposed paragraph (c)(2)(v)(C). The final paragraph requires that 
all temporary and permanent stream-channel diversions be designed to 
ensure that the combination of channel, bank, and flood-plain 
configuration is adequate to pass safely the peak runoff of a 10-year, 
6-hour precipitation event for a temporary diversion and 100-year, 6-
hour precipitation event for a permanent diversion.
    We invited comment on whether the design event for a temporary 
diversion should be raised to the 25-year, 6-hour event to provide 
added safety and protection against overtopping. In response we 
received some comments in support of raising the criteria, while other 
commenters were opposed. The commenters supporting the increase cited 
the unpredictability of storm events. The comments opposed to a larger 
precipitation event cited unnecessary increased costs to construct and 
maintain larger sediment structures. Another commenter suggested that 
we impose site-specific goals such as zero flows or allowable increases 
in downstream and upstream flood risks as implemented and determined by 
the Federal Emergency Management Agency. We disagree with this comment 
because adopting site-specific design storm standards would, 
effectively, result in no minimum national standards. Final paragraph 
(f)(3) prescribes minimum standards and the regulatory authority has 
discretion to impose more stringent site-specific standards if it deems 
them appropriate. This approach ensures flood risk is appropriately 
addressed. To comply with the minimization requirements of SMCRA we 
have the responsibility to address flood risk because any increase in 
flood risk caused by mining would constitute the potential for material 
damage to the hydrologic balance outside the permit area.\512\ 
Ultimately, we decided to retain the 10-year, 6-hour design criteria 
because it provides sufficient protection. The 25-year, 6-hour criteria 
provides minimal risk reduction at the price of significantly 
additional cost and land disturbance. In addition, we point out to the 
commenters that throughout the final rule, we have adopted provisions, 
such as final rule Sec.  816.43, that afford greater protection for 
stream diversions by imposing new design and performance criteria and 
sediment control measures that should capture any additional runoff 
within the permit area. Thus, although we are not adopting the 
commenters' specific suggestions, we

[[Page 93215]]

have afforded sufficient protection to these diversions.
---------------------------------------------------------------------------

    \512\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    A commenter asserted that considerations for floodplains are not 
typically included in temporary diversion design; therefore, this 
commenter questioned whether proposed paragraph (c)(2)(v)(C), now final 
paragraph (f)(3), will no longer require a permit applicant to 
``consider the size of the watershed reporting to the ditch when 
designing a temporary diversion.'' The commenter did not explain the 
term ``ditch.'' As we explain in the preamble to final rule Sec.  
816.43, there are several types of diversions, including diversion 
ditches, stream diversions, and conveyances or channels within the 
disturbed area. Historically, ``ditch'' has been used by industry and 
others--whether correctly or incorrectly--to describe each of these 
types of diversions. This is further complicated by the fact that each 
of these classifications of diversions may be subdivided as temporary 
or permanent. Because this comment was in direct response to proposed 
paragraph (c)(2)(v)(C), we interpreted the commenter to be referring to 
temporary stream diversions as classified by final rule Sec.  
816.43(a)(2)(i). The commenter's assertion that floodplain is not 
considered in temporary diversion design is incorrect. We note that, 
with the exception of the re-designation, the final rule pertaining to 
capacity of diversion ditches is identical to that in the existing 
rules at Sec.  816.43(b)(3). Our final rule specifies that the 
permittee include precipitation event design criteria for temporary 
stream diversions. This includes the watershed area tributary that 
``reports'' to the diverted stream. Therefore, permittees must continue 
to consider the size of the watershed ``reporting'' to the ``ditch.'' 
If the commenter was referring to temporary diversion ditches that are 
channels constructed to convey surface water runoff or other flows from 
areas not disturbed by mining activities away from or around disturbed 
areas, please refer to Sec.  816.43 of the final rule.
    Another commenter asserted that it is almost impossible for a 
stream channel diversion to meet the requirements of both proposed 
paragraphs (c)(2)(v)(B), now final paragraph (f)(2), which requires 
that the hydraulic capacity be no greater than the capacity of the 
unmodified stream channel downstream of the diversion and no less than 
the capacity of the unmodified stream channel upstream of the 
diversion, and proposed paragraph (c)(2)(v)(C), now final paragraph 
(f)(3), which requires that the design be able to pass the 10-year, 6-
hour precipitation event for a temporary diversion and the 100-year, 6-
hour event for a permanent diversion. As discussed above, we are 
retaining both paragraphs in the final rule and we have concluded that 
a permittee can and must satisfy both requirements. Together these 
requirements ensure that disturbances and adverse impacts to fish, 
wildlife, and related environmental values are minimized.\513\ We 
acknowledge that reconciling these requirements may create challenges; 
however, these requirements are necessary to more closely recreate 
natural conditions as we have explained above. Although the permittee 
may exercise discretion in designing these diversions, the requirements 
of final paragraphs (f)(2) and (f)(3) must be satisfied. One method 
that a permittee may select to satisfy both requirements is to 
construct a lined channel designed to accommodate discharge from a 10-
year or 100-year, 6-hour precipitation event for a temporary or 
permanent stream diversion then fill the channel with substrate 
material comparable to that of the premining stream channel. This 
material should be selected consistent with the baseline stream 
assessment required in final Sec.  780.19(c)(6)(ii)A. After this is 
complete, a stream channel similar to the premining stream channel can 
be constructed in the substrate. The reconstructed stream channel and 
flood-prone area will convey in-channel and overbank flows that occur 
during typical precipitation events. If a larger storm event occurs, it 
is likely that the stream and flood-prone area substrate will be 
eroded; however, the lining of the larger channel that was constructed 
first will prevent erosion of the underlying spoil. This is consistent 
with how natural streams function. During storm events, the substrate 
in natural streams is typically eroded until bedrock is encountered. In 
our scenario, the channel that was constructed first operates similar 
to the bedrock in a natural stream.
---------------------------------------------------------------------------

    \513\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Final paragraph (f)(4) requires a permittee to submit a 
certification from a qualified, registered, professional engineer that 
the designs for all diverted and reconstructed stream-channels 
occurring after the completion of mining satisfy the design criteria of 
this section and any additional design criteria established by the 
regulatory authority. This certification may be limited to the 
location, dimensions, and physical characteristics of the stream 
channel. This requirement was proposed at paragraph (c)(2)(iv). We have 
redesignated the final paragraph and, with minor exceptions, adopted 
the paragraph as proposed. Similar to other paragraphs in this section 
we have replaced the term ``restored'' to ``reconstructed'' because the 
latter term better describes the streams that are recreated after 
mining using the criteria prescribed in this section.
    One commenter objected to this portion of the proposed rule, 
alleging that stream restoration requires far more than just 
engineering and that the rule should be clarified to ensure that the 
requirement applies only to the engineering aspect of stream channel 
restoration. The commenter also noted that the U.S. Army Corps of 
Engineers requires only permanent streams with watersheds over 640 
acres to be certified by a professional engineer. Finally, the 
commenter considered this requirement to be excessive, costly, and 
useless because both the U.S. Army Corps of Engineers and the 
regulatory authority constantly inspect the reclamation of these 
streams.
    In response, we note that this requirement does not apply to all 
streams within a permitted area; it applies only to stream segments 
reconstructed after being impacted by mining activities. Also, because 
of the permanency of these reconstructed streams, it is important to 
ensure that the reconstructed stream matches the design plan. This 
determination is most appropriately made by a qualified, registered, 
professional engineer. Moreover, the last sentence of final paragraph 
(f)(4) expressly limits the certification to the location, dimensions, 
and physical attributes of the stream. As we explained in the preamble 
to the proposed rule,\514\ the engineering certification does not 
include assessment of ecological function because that is beyond the 
professional competency of an engineer.
---------------------------------------------------------------------------

    \514\ 80 FR 44436, 44516 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (g): What requirements apply to establishment of 
standards for restoration of the ecological function of a stream?
    Final paragraph (g) replaces proposed paragraph (e) which 
prescribed the standards the permittee must satisfy to restore the 
ecological function of a stream and provided general guidance for 
regulatory authorities to establish standards for determining when the 
permittee had ``restored'' the ecological function of a restored or 
permanently-diverted perennial or intermittent stream. In the final 
rule, we have clarified that the permittee must ``reconstruct'' streams 
that it mines, not ``restore'' or ``permanently divert them;''

[[Page 93216]]

have moved to paragraph (g) the criteria that the regulatory 
authorities must use to establish the standards for restoring 
ecological function; have clarified that the requirement to restore 
ecological function applies only to perennial and intermittent streams; 
and have prescribed the specific criteria the regulatory authority must 
use when it establishes standards for restoring the ecological function 
of perennial and intermittent streams. Specifically, the permittee must 
employ the best technology currently available when it restores the 
biological component of streams. Because the best technology currently 
available varies based upon the type of stream that is restored, we 
differentiated between the standards to be used for perennial and 
intermittent streams. We made these revisions in response to comments 
from the public and other federal agencies. We discuss the 
modifications we made to the final rule in more detail below.
    In final paragraph (g)(1), we retained the requirement that the 
regulatory authority establish criteria for determining when the 
permittee has restored the ecological function of a perennial or 
intermittent stream after mining through the stream. However, in 
response to a federal agency comment, we removed the adjective 
``objective'' because the requirements in final paragraphs (g)(2) 
through (4) provide adequate guidance for establishing these standards.
    We made additional revisions to this requirement. First, we 
clarified that the requirement to restore ecological function applies 
only to perennial and intermittent streams. Although final Sec.  780.28 
specifically refers to these two stream types and not ephemeral 
streams, several commenters opined that the proposed rule was unclear 
about what requirements applied to each stream type. Therefore, final 
paragraph (g)(1) specifically refers to perennial and intermittent 
streams to clarify that any applicant proposing to mine through a 
perennial or intermittent stream must incorporate the standards imposed 
by the regulatory authority and explain how it will satisfy the 
standards. We reiterate that final Sec.  780.27 provides the 
requirements applicable to ephemeral streams.
    Second, consistent with other paragraphs of the final rule, we 
removed the proposed terms ``restored'' and ``permanently diverted.'' 
Several commenters asserted that those terms are vague. We agree and we 
have replaced those terms with ``reconstructed'' in order to describe 
more accurately the reclamation that must occur after mining in or 
through intermittent or perennial streams.
    One commenter objected to the requirement that the regulatory 
authority establish standards for determining when ecological function 
has been restored because the commenter opined that permittees can 
never restore identical ecological function. In response, we 
acknowledge that there has been no consistent documentation that 
streams can be restored to their identical ecological function. Neither 
the proposed rule nor the final rule, however, requires that the 
restored ecological function of a stream be identical to what it was 
before mining. Instead, Sec.  780.28(g)(3)(ii)(A) of the final rule 
explicitly provides that the reconstructed streams or stream-channel 
diversions need not have precisely the same biological condition or 
biota as the stream segment had before mining.
    Several commenters contended that the permit requirements in 
proposed Sec.  780.28(e)(1) were too subjective and vague. Similarly, 
some commenters were also concerned that the standards for restoring 
ecological function are too difficult to determine without further 
guidance and that developing standards will be a task too complex for 
regulatory authorities. Many commenters opined that the general 
reference to proposed Sec.  816.57(b)(2), which provided the 
requirements for restoration of ``form'' and ``function'' of streams, 
was too vague and objected stating that the rule did not prescribe 
specific standards for the restoration of ecological function. To 
clarify, we are not establishing standards for restoration of 
ecological function. The regulatory authority must follow the minimum 
requirements we prescribe in final paragraph (g) to establish standards 
for determining when the permittee has restored ecological function. We 
are granting this discretion to the regulatory authority because of the 
unique characteristics of mining operations and biological systems 
across the nation and due to the specialized expertise of the 
regulatory authority in relationship to specific geographic areas. 
However, the regulatory authority must satisfy the criteria set forth 
in Sec.  780.28 for establishing appropriate standards. Another 
commenter requested that we revise the regulations to penalize 
regulatory authorities that fail to establish standards, in accordance 
with our requirements, for determining when the permittee has restored 
the ecological function of a stream. This is not necessary. As we 
discussed, the final rule appropriately provides regulatory authorities 
with the flexibility and discretion to establish standards for their 
jurisdiction. If, at some point, we determine that a regulatory 
authority is not satisfying the minimum requirements as identified in 
Sec.  780.28(g), we may exercise our oversight responsibilities as 
outlined in 30 CFR part 842.
    We agree with the comments that we should have been more specific 
about the criteria for establishing standards for assessing whether the 
permittee has restored the ecological function of a reconstructed 
stream. To remedy this, in paragraphs (g)(2), (3), and (4) of the final 
rule, we clearly prescribed the minimum requirements the regulatory 
authority must satisfy when it establishes standards. The inclusion of 
these minimum requirements should also address the commenters' concern 
that the task of developing standards for determining when the 
ecological function is restored was too complex of a task for 
regulatory authorities. We have also moved proposed paragraphs Sec.  
816.57(b)(2)(ii)(B), (C), and (D), into final Sec.  780.28(g) because 
these provisions are more appropriately categorized as permitting 
requirements, not performance standards.
    Final paragraph (g)(2) replaces and enhances the requirement in 
proposed Sec.  780.28(e)(1)(ii) that the regulatory authority must 
coordinate with ``the Clean Water Act permitting authority to ensure 
compliance with all Clean Water Act requirements.'' We have modified 
this requirement to encompass coordination with all ``appropriate 
agencies responsible for administering the Clean Water Act, 33 U.S.C. 
1251 et seq.'' This clarification ensures that the regulatory authority 
must consult with any federal or state Clean Water Act regulatory 
authority including agencies responsible for permitting and enforcement 
actions. We have made this change in response to comments received by 
other federal agencies and state regulatory authorities.
    In final paragraph (g)(3), we provide that the biological component 
standards for restoration of the ecological function of perennial and 
intermittent streams must employ the best technology currently 
available. This is consistent with section 515(b)(24) of SMCRA,\515\ 
which requires utilization of the best technology currently available 
to minimize disturbances and adverse impacts upon fish, wildlife, and 
related environmental values. In the final rule we prescribe two 
separate standards for assessing the restoration of ecological 
function. The first standard, articulated in paragraphs (g)(3)(ii) and 
(iii), applies to perennial streams and to those

[[Page 93217]]

intermittent streams for which a scientifically defensible index of 
biotic integrity and the use of bioassessment protocols have been 
established. For these streams we specify that the best technology 
currently available is the biological condition of the stream as 
determined by an index of biotic integrity and the use of bioassessment 
protocols consistent with final rule Sec.  780.19(c)(6). The second 
standard, articulated in paragraph (g)(3)(iv)(A), applies to all other 
intermittent streams. For these streams, we specify that the best 
technology currently available consists of the establishment of 
standards that rely upon restoration of the ``form,'' ``hydrologic 
function,'' and water quality of the stream and the reestablishment of 
streamside vegetation as a surrogate for the biological condition of 
the stream. We developed these two standards after reviewing pertinent 
scientific literature and considering the comments we received on this 
topic, including comments from other federal agencies, as we discuss 
below.
---------------------------------------------------------------------------

    \515\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    In the preamble to paragraph (b)(2)(ii)(C) of proposed Sec.  
816.57,\516\ we invited comment on the effectiveness of using index 
scores from bioassessment protocols to ascertain impacts on existing, 
reasonably foreseeable, or designated uses. We also invited commenters 
to suggest other approaches that may be equally or more effective. We 
are discussing the response to these comments here because, as we 
discussed above, in the final rule we have moved those provisions to 
Sec.  780.28(g)(3). Final rule Sec. Sec.  780.28(g)(3)(ii) and (iii) 
now contain the provisions that govern the use of protocols for 
perennial streams and certain intermittent streams and final rule Sec.  
780.28(g)(3)(iv) now contains the provision that governs the standards 
that apply to all other intermittent streams. In response to our 
invitation, some commenters asserted that the Clean Water Act 
methodology for water quality standards and physical habitat scoring 
are more dependable measures than index scores derived from 
bioassessment protocols. These commenters asserted that the Clean Water 
Act methodologies are superior to index scores from bioassessment 
protocols because they are capable of replication and are not subject 
to as many variables in the environment and sample methodology. Other 
commenters recommended that if we decided to use index scores from 
bioassessment protocols we should require them to be used in a 
qualitative rather than a quantitative manner. We acknowledge that some 
Clean Water Act authorities use a qualitative or narrative approach in 
their multimetric bioassessment protocols. While these approaches may 
be acceptable, physical habitat measurements alone are generally 
inadequate to determine if the permittee has restored ecological 
function because water quality and biological measures are also 
important.\517\ One other commenter encouraged us to require functional 
assessment protocols to test for specific attributes of stream function 
including: Timing and amount of leaf litter and wood inputs, dissolved 
organic carbon, dissolved oxygen, nitrogen and phosphorus levels, gross 
primary production, and nutrient uptake and storage. We have 
determined, however, that this level of specificity is not necessary 
because the protocol we set out in final Sec.  780.19(c)(6)(vi) through 
(viii), and discussed in the preamble to Sec.  780.19(c), should 
adequately capture the biological condition of streams. For additional 
discussion of this topic, please see general comment N in Part IV.
---------------------------------------------------------------------------

    \516\ 80 FR 44436, 44553 (Jul. 27, 2015).
    \517\ U.S. Envtl. Prot. Agency. Rapid Bioassessment Protocols. 
Watershed Academy Web. https://cfpub.epa.gov/watertrain/moduleFrame.cfm?module_id=25&parent_object_id=1019&object_id=1019 
(last accessed Nov. 10, 2016).
---------------------------------------------------------------------------

    Other commenters objected to the requirement in proposed Sec.  
816.57(b)(2)(ii)(C), which has been moved to final Sec.  780.28(g)(3). 
This provision required that the permittee assess the biological 
condition of a reconstructed stream by using a protocol that meets the 
requirements of proposed Sec.  780.19(e)(2). Proposed Sec.  
780.19(e)(2)(i) required that, for perennial and intermittent streams, 
the permittee identify benthic macroinvertebrates to the genus level. 
The commenters specifically objected to this requirement, alleging that 
this level of identification is significantly more expensive and more 
stringent, that it is arbitrary, and that it has no apparent benefit. 
Another commenter added that the bioassessment method is resource 
intensive and that potentially affected streams are small and highly 
variable in nature, making the development of credible index values 
challenging, if not impossible. We disagree. As the commenters noted in 
response to proposed Sec.  816.57(b)(2)(ii)(C), now 780.28(g)(3), 
genus-level identification is often more costly than family-level 
identification. However, scientific literature supports genus level 
identification because it provides a more accurate indication of the 
biological condition of a stream than family level. The assertion that 
genus level identification is too stringent or arbitrary is unfounded 
because many states require identification to the genus level.\518\ For 
example, the state of West Virginia has developed and is in the process 
of adopting, a genus level index. Similarly, many projects in Virginia 
require use of the Eastern Kentucky Stream Assessment Protocol, which 
uses genus level taxonomy. We have, however, modified the aspects of 
the proposed rule that required genus level identification. Final Sec.  
780.19(c)(6)(vii) requires permittees to measure aquatic organisms 
identified to the genus level where possible, otherwise to the lowest 
practical taxonomic level. This modification allows for situations 
where the permittee cannot measure the genus level taxonomy without 
harming the population. We have incorporated these protocols by 
reference in final Sec.  780.28(g)(3)(ii). Therefore, when the state 
regulatory authority establishes the criteria for best technology 
currently available for perennial streams and some intermittent 
streams, the protocols outlined in final rule Sec.  780.19(c)(6), must 
be used, including identification to the genus level, where possible, 
otherwise to the lowest practical taxonomic level.
---------------------------------------------------------------------------

    \518\ The following are examples from coal mining regions across 
the nation. This list is not exhaustive: Gregory J. Pond, et al., 
The Kentucky macroinvertebrate bioassessment index, Kentucky Dep't 
for Env't. Protection, Division of Water, Water Quality Branch, 
Frankfort (2003).
    Deborah Arnwine, Quality system standard operating procedure for 
macroinvertebrate stream surveys, Division of Water Pollution 
Control, Dep't of Env't. and Conservation, State of Tennessee 
(2011).
    Eric G. Hargett, The Wyoming Stream Integrity Index (WSII)-
Multimetric indices for assessment of wadeable streams and large 
rivers in Wyoming.'' Wyoming Dep't of Environmental Quality, Water 
Quality Division, Cheyenne, Wyoming. Document: 11-0787 (Aug. 2011).
    Water Quality Assessment Branch Mississippi Dep't of Envtl. 
Quality, Development and Application of the Mississippi Benthic 
Index of Stream Quality (M-BISQ). (June 2003).
    Texas Commission on Environmental Policy, Surface Water Quality 
Monitoring Procedures, Volume 2: Methods for Collecting and 
Analyzing Biological Assemblage and Habitat Data (June 2007)
    Aquatic Life Use Attainment Methodology to Determine Use 
Attainment for Rivers and Streams, Policy Statement 10-1. 2010. 
Colorado Dep't of Public Health and Environment Water Quality 
Control Commission.
---------------------------------------------------------------------------

    In response to our invitation for comment on the effectiveness of 
using index scores from bioassessment protocols to ascertain impacts on 
existing, reasonably foreseeable, or designated uses, another commenter 
opined that using bioassessment protocols would not effectively measure 
impact on designated uses for streams in western states. This 
commenter,

[[Page 93218]]

however, did not provide specific rationale for this assertion. Despite 
what the commenter claims, regulatory authorities, including those in 
western states, routinely use multimetric bioassessment protocols for 
many purposes, including using them to develop total maximum daily load 
development, to measure national pollutant discharge elimination system 
permit compliance, and to do a Use Attainability Analyses, which states 
employ in order to determine whether a designated use for a waterbody 
is not feasible. We acknowledge that a major challenge for conducting 
bioassessments in environmentally diverse regions is ensuring that an 
index provides consistent meaning in different environmental settings. 
Further, we recognize that those who develop bioassessment indices 
should carefully evaluate index performance across different 
environmental gradients where an index value is applied.\519\ For this 
reason, and as we stated in the proposed rule, ``we anticipate that the 
SMCRA regulatory authority, with assistance from the appropriate Clean 
Water Act agencies, will define the range of index values required to 
support each existing and designated use of the stream segment in 
question.'' \520\
---------------------------------------------------------------------------

    \519\ See Raphael D. Mazor et al., Bioassessment in complex 
environments: Designing an index for consistent meaning in different 
settings, Freshwater Science. 2016. Published online Oct. 22, 2015.
    \520\ 80 FR 44436, 44475 (Jul. 27, 2015).
---------------------------------------------------------------------------

    After considering all of the commenters' suggestions, we are 
retaining the requirement that SMCRA regulatory authorities use 
existing scientifically defensible multimetric bioassessment protocols 
to assess the ecological function when such protocols are available. 
This requirement is now set out in two places: Final rule Sec.  
780.28(g)(3), the analog to proposed rule Sec.  816.57(b)(2)(ii)(C); 
and final rule Sec. Sec.  780.19(c)(6)(vi) through (viii), the analog 
to proposed rule Sec.  780.19(e)(2). These protocols are the best 
technology currently available to measure the biological condition of 
perennial and intermittent streams. The approach we take in the final 
rule is consistent with section 515(b)(24) of SMCRA,\521\ which 
requires the impacts to fish, wildlife, and related environmental 
values be minimized using the best technology currently available. 
Additionally, studies show that the best technology currently available 
includes ``incentives for avoidance and minimization'' of disturbance 
to streams because that is less likely to result in loss of stream 
functions and services than compensatory mitigation.\522\ The 
regulations at Sec.  780.28(g)(3)(i) through (iv) implement the 
recommendations made by scientists and other stream experts about the 
best way to minimize the loss of stream functions.
---------------------------------------------------------------------------

    \521\ 30 U.S.C. 1265(b)(24).
    \522\ Colleen E. Bronner, et al., 2013. An Assessment of U.S. 
Stream Compensatory Mitigation Policy: Necessary Changes to Protect 
Ecosystem Functions and Services. 49(2) Journal of the American 
Water Resources Association (JAWRA) 449-462 (April 2013).
---------------------------------------------------------------------------

    At the same time, we recognize that some states may not have an 
established scientifically defensible protocol for intermittent 
streams. Therefore, in paragraph (g)(3)(iv)(A) we provide that in 
states without currently established scientifically defensible 
bioassessment protocols for intermittent streams, the permittee must 
rely upon the restoration of the form, hydrologic function, water 
quality, and reestablishment of streamside vegetation as surrogates for 
the biological condition of the stream. However, we do not mean this 
approach to be a permanent solution because states are developing 
additional bioassessment protocols for intermittent streams. 
Consequently, in final rule Sec.  780.28(g)(3)(iv)(B), we require the 
regulatory authority at five year intervals to reevaluate the best 
technology currently available for intermittent streams. We expect the 
regulatory authorities to consider advancements in bioassessment 
protocols and to adjust their permitting processes to implement the 
best technology currently available.
    Final Sec.  780.28(g)(3)(ii)(C) ensures that populations of 
organisms used to assess biological condition are capable of 
maintaining themselves by independent effort and prevents the usage of 
stocked or introduced populations. We proposed a similar requirement in 
Sec.  816.57(b)(2)(ii)(D); however, one commenter asserted that this 
provision did not provide sufficient detail explaining how an operator 
will determine whether a population is self-sustaining. In response, we 
note that the regulatory authority will have discretion to determine 
the sufficiency of the population reproduction. Natural reproduction is 
an indicator of a self-sustaining population. As discussed in the 
preamble to the proposed rule, organisms that happen to drift into the 
reconstructed channel from other areas will not accurately reflect that 
the permittee has restored ecological function.\523\
---------------------------------------------------------------------------

    \523\ 80 FR 44436, 44553-44554 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Based upon scientific literature we reviewed at commenters' 
suggestions,\524\ we are also requiring that the bioassessment protocol 
prohibit substantial replacement of pollution-sensitive species with 
pollution-tolerant species. This provision in final paragraph 
(g)(3)(ii)(B) ensures that a full complement of native species is 
restored in the reconstructed stream and that the stream is not simply 
dominated by pollution-tolerant species.
---------------------------------------------------------------------------

    \524\ J. Todd Petty, et al. Landscape indicators and thresholds 
of stream ecological impairment in an intensively mined Appalachian 
watershed, 29(4) Journal of the North American Benthological 
Society, 1292-1309 (2010).
---------------------------------------------------------------------------

    One commenter opined that to determine if ecological function has 
been restored and to assess biological condition regulatory authority 
staff must possess more knowledge, skills, and abilities related to 
biological evaluation than required under the previous regulations and 
that this will create an unnecessary burden. We agree that expertise in 
biology may be required for regulatory staff to properly review permit 
applications that propose to conduct activities in, through, or 
adjacent to streams, but we disagree that the requirement is 
unnecessary. Restoring ecological function will result in significant 
long-term benefits to stream health. Additionally, in relationship to 
bioassessment protocols specifically, the regulatory authority is in 
the best position to assess protocols because it has the most relevant 
information and experience related to the specific geographic region 
and can tailor the protocols to meet local environmental constraints. 
Therefore, we are retaining this requirement. For further evaluation of 
the impacts upon regulatory authority staff, please review the RIA. 
Other commenters recommended that we require a qualified biologist or 
ecologist to formally attest to the sufficiency of any plan submitted 
in the permit application to restore the biological function of 
impacted streams and all determinations regarding restoration of stream 
ecological function. We have not adopted this recommended change. 
Instead, we have retained, with slight modification from what was 
proposed, a process that will ensure that reviewers use the standards 
as prescribed by final paragraphs (g)(2) through (4) to determine when 
the operator has restored the ecological function of the reconstructed 
stream, and that requires the applicant to incorporate those standards 
and explain how it will satisfy the requirements. As prescribed by 
final paragraph (g)(2) of Sec.  780.28, this process includes 
coordination with Clean Water Act regulatory authorities. These 
authorities, along with the SMCRA regulatory authority, and, as

[[Page 93219]]

necessary, the U.S. Fish and Wildlife Service when performing its 
consultation duties under section 7 of the Endangered Species Act, have 
sufficient expertise to make the required determinations.
    Although operators are not required to reconstruct streams that 
have the precise biological condition as their premining counterparts, 
we prescribed in proposed rule Sec.  816.57(b)(2)(ii)(B) that the 
reconstructed stream must be adequate to support both the uses that 
existed before mining and must not preclude the attainment of the 
designated uses that existed before mining pursuant to sections 101(a) 
of 303(c) of the Clean Water Act.\525\ We have retained this 
requirement, with the exception of removing reference to section 101(a) 
of the Clean Water Act, and moved it to final Sec.  780.28(g)(4). Some 
commenters expressed support for allowing some variation in the species 
composition and the array of insects, fish, and other aquatic organisms 
found in a reconstructed stream or stream-channel diversion as long as 
the change in species composition does not preclude any use that 
existed prior to mining, nor attainment of any designated use before 
mining. However, other commenters indicated that these requirements are 
duplicative of the Clean Water Act and should be eliminated. We 
disagree because, as discussed in Part IV. I., above, the requirements 
of the final rule do not supersede or duplicate the Clean Water Act; 
instead, these requirements complement the Clean Water Act and will 
increase coordination between the SMCRA regulatory authority and the 
Clean Water Act authority.
---------------------------------------------------------------------------

    \525\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    Other commenters suggested that we revise proposed Sec.  
816.57(b)(2)(ii)(B), which has been moved to final rule Sec.  
780.28(g)(4), to make clear that all restored streams and receiving 
streams outside the permit area must have biological assemblages that 
support threatened and endangered species in the area. We decline to 
make this change here for several reasons. First, this comment is more 
applicable to final Sec.  780.28(g)(3), which sets out the requirements 
for establishing, where applicable, appropriate biological conditions. 
Second, this revision would be duplicative because we have included 
specific requirements protecting threatened and endangered species 
throughout the final rule including, among others, Sec.  773.15(j)(1), 
which requires documentation that the proposed permit area and adjacent 
area do not contain species listed or proposed for listing as 
threatened or endangered under the Endangered Species Act,\526\ and 
Sec.  773.15(j)(2), which requires documentation that the proposed 
operation would have no effect on species listed or proposed for 
listing as threatened or endangered under the Endangered Species 
Act.\527\
---------------------------------------------------------------------------

    \526\ 16 U.S.C. 1531 et seq.
    \527\ 16 U.S.C. 1531 et seq.
---------------------------------------------------------------------------

    Similarly, one commenter asserted that proposed Sec.  
816.57(b)(2)(ii), now incorporated in final rule Sec.   780.28(g)(4), 
did not protect newly listed, threatened or endangered species that are 
not designated or otherwise protected under the Endangered Species Act 
at the time the Clean Water Act designated use is developed. This 
commenter urged us to require that streams be restored to protect both 
designated use and any additional uses needed to support newly listed 
species. We did not make any changes to the final rule as a result of 
this comment because it is adequately addressed in final rule Sec.  
816.97(b)(1)(ii) through (iii), which require the operator to promptly 
report the presence of any federally-listed species located within the 
permit or adjacent area to the regulatory authority. This requirement 
applies even if the species was not listed before permit issuance. The 
regulatory authority must coordinate with the U.S. Fish and Wildlife 
Service to determine whether and under what conditions the operation 
may proceed and to revise the permit as necessary.
    We added final paragraph (g)(4)(ii) in response to a federal agency 
comment and a similar comment from another commenter that alleged that 
prohibiting activity from completely ``precluding'' a water use is ``an 
inordinately lax standard that would allow severe impairment of a 
stream.'' One of these commenters also suggested that we replace 
``preclude'' with ``cause or contribute to the impairment of.'' In lieu 
of accepting the recommendation to replace ``preclude'' we have 
retained that terminology in final paragraph (g)(4)(i) and we have 
added final paragraph (g)(4)(ii). This paragraph clarifies that the 
standards for restoring ecological function must not prevent a stream 
segment from satisfying the anti-degradation requirements of the Clean 
Water Act as adopted by state or tribes or as established by a federal 
rulemaking under the Clean Water Act.
Final Paragraph (h): What finding must the regulatory authority make 
before approving a permit application under this section?
    Final paragraph (h), previously proposed paragraph (e)(2), 
specifies that a permittee's application proposing to conduct surface 
mining activities in or within 100 feet of a perennial or intermittent 
stream may not be approved unless the regulatory authority makes a 
specific, written finding that the permittee has fully satisfied all of 
the applicable requirements of final paragraphs (c) through (f) of this 
section. Additionally, for the permit to be valid the regulatory 
authority must include a detailed rationale for the finding. We did not 
receive any comments on this paragraph and we are accepting it as 
proposed.
Final Paragraph (i): Programmatic Alternative
    We have added final paragraph (i) to clarify that paragraphs (c) 
through (h) of this section will not apply if a regulatory authority 
amends its program to expressly prohibit all surface mining activities, 
including the construction of stream-channel diversions, that would 
result in more than a de minimis disturbance of land in or within 100 
feet of a perennial or intermittent stream. We have added this 
alternative in response to comments advocating a complete ban on 
activities within 100 feet of any stream because the commenters viewed 
a ban as the most protective course of action. Although we are not 
adopting a complete ban as part of the final rule, we have concluded 
that the regulatory authority should retain the discretion to enact 
more stringent measures. Thus, we are clarifying that the regulatory 
authority has the option to enact such a prohibition.
Section 780.29: What information must I include in the surface-water 
runoff control plan?
    As discussed in the preamble to the proposed rule, section 780.29 
identifies the required information for surface water runoff control 
plans.\528\ After evaluating the comments that we received, we have 
made several changes to the final rule.
---------------------------------------------------------------------------

    \528\ 80 FR 44436, 44519 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Final paragraph (a)(1) requires an explanation of how you will 
handle surface-water runoff in a manner that will prevent flows from 
the proposed permit area, both during and after mining and reclamation, 
from exceeding the premining peak flow from the same area for the same-
size precipitation event. In most cases, this will require monitoring 
peak surface water flows in existing natural drainage channels at or 
near the permit boundary.
    One commenter alleged that offsite flooding as a result of 
uncontrolled surface water runoff is probably limited

[[Page 93220]]

to areas where during mining and postmining topography are 
significantly altered from the premining conditions, for example, in 
steep slope areas of Appalachia. The commenter opined that the 
requirements should be limited, either through geographic or slope 
based restrictions, to areas where they would be applicable. We 
disagree. Regardless of the premining topography of a mine site, 
surface water runoff characteristics are significantly altered during 
mining; hence, a surface water runoff control plan is necessary to 
ensure that surface water flows from the site during mining do not 
exceed premining peak flows. Unless specifically exempted, such as in 
special categories of mining, the permittee is required to restore the 
mine site to approximate original contour. Therefore, the postmining 
topography should not be significantly different from the premining 
conditions. However, it will still be necessary to verify that 
postmining surface water runoff does not exceed premining flows. This 
will protect both downstream populations and shield industry from 
liability because flows from the mine site will be documented.
    Some commenters expressed concern about the proposed use of the 
Natural Resource Conservation Service's synthetic storm distribution 
method for estimating peak storm flows as required in the proposed 
rule. These commenters were particularly concerned about our allowing 
only one method to estimate peak storm flows when other methods may be 
acceptable. In response to this comment, we have modified the final 
rule at paragraph (a)(1) to include the phrase ``or another 
scientifically-defensible method approved by the regulatory authority 
that takes into account the time of concentration to estimate peak flow 
discharges.'' We recognize that other equally viable methods for 
estimating storm peak flows exist and this change in the final rule 
provides the regulatory authority the discretion to allow other valid 
methods. However, although we are not prescribing a specific method for 
characterizing surface water runoff from a mine site, you must use a 
scientifically defensible, repeatable method acceptable to the 
regulatory authority that adequately characterizes precipitation-
related surface water runoff. It is imperative that storm duration for 
each drainage be based on its time of concentration. Time of 
concentration is defined as the time needed for water to flow from the 
most remote point in a watershed to the watershed discharge point. A 
precipitation event is typically described by the frequency of 
occurrence and duration; for example, the 10-year, 24-hour event. The 
duration must be selected based on the time of concentration of the 
drainage being evaluated. A site specific storm duration is required 
because shorter duration storms typically have greater precipitation 
intensities, and use of the appropriate duration in the analysis will 
result in the maximum flow for a given frequency of occurrence event.
    One commenter stated that development of a surface water runoff 
control plan to evaluate peak flows cannot be done using National 
Pollutant Discharge Elimination System points or the monitoring points 
required in Sec.  780.19, regarding baseline information on hydrology, 
geology, and aquatic biology. We agree that those monitoring points are 
intended to facilitate assessment of water quality and all of these 
points may not be the best locations for assessing peak discharge from 
the permit area. Also, the National Pollutant Discharge Elimination 
System monitoring points within the permit area are not required for 
surface water runoff analysis. However, it is necessary for the 
operator to measure peak surface water flows at or near the permit 
boundaries. Often peak surface water flow monitoring points coincide 
with the location of National Pollutant Discharge Elimination System 
monitoring points. Therefore, in response to the commenter, we point 
out that select National Pollutant Discharge Elimination System 
monitoring points may be useful in analyzing surface water runoff. 
Paragraph (b) requires a monitoring-point density that adequately 
represents the drainage pattern across the entire proposed permit area, 
with a minimum of one monitoring point per watershed discharge point. 
In the context of a surface water runoff control plan, a watershed 
discharge point refers to a point of discharge from the permit area. 
The associated watershed is the drainage area that contributes to that 
point. Potentially, and to the commenter's point, the watershed 
discharge point may also coincide with a National Pollutant Discharge 
Elimination System monitoring point. The essential factor is that the 
drainage pattern across the entire proposed permit area is adequately 
represented.
    One commenter noted that peak flows at any given moment during the 
operation may be different than the flows reflected during baseline 
sample collection, as mandated by section 780.19. Therefore, according 
to the commenter, this could result in false designs and expectations. 
We agree that precipitation events of any specific ``size'' are 
unlikely to reoccur on multiple occasions at a site. However, over the 
baseline monitoring period, multiple precipitation events and 
associated peak flows should be observed. From these, the premining 
relationship between precipitation and peak flows can be determined. 
This hydrologic response relationship can be plotted as a curve, and 
used to estimate peak flows for precipitation events that differ from 
those measured during the baseline monitoring period. Consequently, 
Sec.  780.19(c)(3)(i)(A) requires baseline measurement of peak flow 
magnitude and frequency and Sec.  780.19(c)(5) requires measurement of 
precipitation events using on-site, self-recording devices or, at the 
discretion of the regulatory authority, a single device located to 
provide baseline data for multiple permits located close to each other. 
Results of these measurements can be used in the design of the surface 
water runoff control system.
    One commenter alleged that discharge estimates are based on 
empirical models and methodology that require the engineer to fit the 
appropriate methodology to the study area being evaluated. We agree. 
Premining precipitation and peak flow information obtained as described 
above can be used in these models to establish the hydrologic response 
characteristics of each drainage area being considered. The data 
collected will allow the engineer to verify that model output 
approximates the observed relationship between precipitation and peak 
flows. During mining and reclamation, the measured precipitation for 
each drainage area can be input to the model, and the output observed. 
The only requirement is that the measured peak flows from the permit 
area do not exceed the estimated premining peak flow for the same 
event.
    Proposed and final paragraph (b) set out the various requirements 
for a surface-water-runoff monitoring and inspection program including 
the requirement that the program ``provide sufficient precipitation and 
stormwater discharge data for the proposed permit area to evaluate the 
effectiveness of the surface-water runoff control practices under 
paragraph (a).'' A commenter asserted that it was impossible to imagine 
that premining and postmining peak flows from same-sized precipitation 
events would be the same. The commenter alleged that it is not the size 
of the discharge, but whether damage could occur as a result of the 
discharge that should be considered. We agree in part. It is virtually 
certain that, if not controlled, surface water flows

[[Page 93221]]

from an area during and after mining will differ from, and in most 
cases exceed, premining flows for the same precipitation event. It is 
equally certain that flows from a larger event will then result in 
offsite damage that would not have occurred absent the mining 
activities. This is the very situation that the surface water runoff 
control plan required by this section is intended to prevent. We are 
requiring the permittee to design and construct or install surface 
water runoff control structures, as well as develop and implement the 
reclamation plan, so that, at any given time the flows at the permit 
boundary and on adjacent areas do not exceed premining flows for any 
given precipitation event.
    Another requirement in proposed and final paragraph (b) is that the 
program must contain ``a monitoring-point density that adequately 
represents the drainage pattern across the entire proposed permit area, 
with a minimum of one monitoring point per watershed discharge point.'' 
Upon review of the proposed rule and the comments received, we 
recognize that there may be confusion about the role of ephemeral 
streams in the monitoring and inspection program. While it is essential 
that the ephemeral stream drainage pattern should be similar to the 
premining conditions and surface water flows should be similar to 
premining flows prior to final bond release, in a surface water runoff 
context, it is not necessary to measure discharges of particular 
ephemeral streams either before, during, or after mining. The purpose 
of monitoring in this context is to ensure that flows during and after 
mining do not exceed premining flows. Monitoring each ephemeral stream 
would require many monitoring points, yet not provide significant 
useful information because the pre- and postmining locations of 
ephemeral streams will differ, in some cases significantly. During 
mining, the surface water that typically feeds these ephemeral streams 
will be captured by the drainage control system and conveyed to one or 
more discrete flow monitoring points that may be associated with a 
National Pollutant Discharge Elimination System monitoring point. 
Therefore, we do not require you to include headwater streams that 
emanate from the permit area as ephemeral streams when you determine 
the monitoring-point density under paragraph (b).
    Some commenters suggested that a federally-mandated minimum 
monitoring-point density standard is unnecessary and that the 
regulatory authority should have flexibility to establish the minimum 
point density based on local conditions, type of mining, type of 
sediment control measures, and other factors. The commenters appear to 
take issue with the requirement in paragraph (b) that there be a 
minimum of one monitoring point per watershed discharge point. Since 
the purpose of the surface water runoff control plan is to prevent 
offsite damage, the requirement for one monitoring point per discharge 
is reasonable as the data will validate that the surface water runoff 
control plan is working and that it is preventing mining-related 
offsite flooding, stream scouring and damage to private property. To 
specifically address the requirements of paragraph (a), monitoring 
points should be located at the places where streams flow from the 
permit area, and would, in most cases, coincide with the locations of 
baseline surface water monitoring points.
    Citing the above reasons for a federally mandated minimum sampling 
density, another commenter suggested that the current criteria for 
sampling density are sufficient for most permits and that the changes 
in the proposed rule should be limited to applicable areas based upon 
either geographical or slope based considerations. We are not altering 
the final rule as a result of this comment. SMCRA regulations currently 
contain no minimum sampling density criteria. Regardless of geographic 
location or topography, changes to ground cover and precipitation 
infiltration characteristics occur and often result in increased 
stormwater runoff from a site in comparison to conditions prior to 
disturbance. The intent of stormwater runoff monitoring is to prevent 
offsite flooding attributable to mining activities. One monitoring 
point at each point of discharge of a perennial or intermittent stream 
leaving the permit area is the minimum that could be effective.
    A commenter suggested that the phrase ``watershed discharge point'' 
as used in paragraph (b) of the proposed rule, is not clear with 
respect to the corresponding drainage area associated with that point. 
Similarly, another commenter noted that we did not define the term 
``watershed discharge point'' and that a common understanding of the 
term is not available. To clarify, a watershed discharge point is a 
selected point of interest within a stream channel, such as a culvert 
location or a stream channel at a permit boundary. The associated 
watershed is the land area that drains to that watershed discharge 
point. These terms are commonly accepted in hydrology and engineering 
disciplines.
    Another commenter suggested that it is not necessary for us to 
require post-mining monitoring and inspection of each watershed to 
evaluate the quantity of flow after mining because the regulatory 
authority will be making monthly inspections and discharge issues 
should be identified at that time. We have not changed the final rule 
as a result of this comment. Monthly inspections performed by the 
regulatory authority are unlikely to coincide with storm events and do 
not include measurement of peak stormwater discharges associated with 
these events. Therefore, results of scheduled inspections that occur 
after a storm event cannot be used to determine if flooding resulted 
from mining activities or if it would have occurred even in the absence 
of mining.
    Another commenter suggested that pursuant to the Clean Water Act 
stormwater program, stormwater at mine sites is already carefully 
controlled by multiple best management practices, technology 
requirements, erosion and sediment control practices, and buffer zones. 
The commenter alleged that the requirement for a surface-water runoff 
monitoring and inspection program conflicts with, and is duplicative of 
Clean Water Act requirements. We disagree and are not making any 
changes to the final rule in response to this comment because, despite 
the cited stormwater control measures, stormwater-related offsite 
damage frequently occurs. In addition, the cited measures do not 
specifically include monitoring of stormwater discharges at permit 
boundaries. Therefore, the monitoring and inspection program required 
in final paragraph (b) supplements, rather than conflicts with existing 
requirements.
    In the final rule we are dividing proposed paragraph (c) into 
paragraphs (c) and (d). Final paragraph (c) now contains the 
requirement for the surface-water runoff control plan to include 
``[d]escriptions, maps, and cross-sections of runoff-control 
structures.'' After reviewing the comments we have decided to add a 
definition to address confusion about the scope of the term ``runoff-
control structures'' which we use both here and in Sec.  816.34(d)(1), 
which relates to protecting the hydrologic balance. The definition 
makes clear that the term ``runoff-control structures'' includes the 
many different types of hydraulic structures that play roles in 
controlling runoff of surface water on a mine site. All conveyance 
channels, including drainage benches, diversion ditches, and groin 
ditches, control where surface runoff flows, and these structures

[[Page 93222]]

control the rate of runoff by their channel slope and resistance to 
flow, the latter of which is dependent on channel surface roughness. 
Siltation structures such as sedimentation ponds or ditches control the 
rate of discharge by storing water entering the structures and 
releasing it at a slower rate, controlled by the outlet structure. All 
of these structures work as a system, controlling flow of surface water 
on and across a mine site, and the rate at which it is discharged 
outside the permit area. Our definition recognizes that these 
structures are interdependent and that they function as a system to 
control surface water runoff.
    Final paragraph (d) now contains the requirement for the surface-
water runoff control plan to include an ``explanation of how diversions 
will be constructed in compliance with Sec.  816.43''. In proposed 
paragraph (c), this provision applied not only to diversions but also 
to ``other channels to collect and convey surface water runoff'' even 
though Sec.  816.43 applies only to diversions. We have removed this 
erroneous reference to ``other channels to collect and convey surface 
water runoff'' from the final rule.
Section 780.31: What information must I provide concerning the 
protection of publicly owned parks and historic places?
    We are finalizing section 780.31 as proposed. We received no 
comments on this section.
Section 780.33: What information must I provide concerning the 
relocation or use of public roads?
    We are finalizing Sec.  780.33 as proposed. We received no comments 
on this section.
Section 780.35: What information must I provide concerning the 
minimization and disposal of excess spoil?
    As discussed in the preamble to the proposed rule, Sec.  780.35 
identifies the required information for minimization and disposal of 
excess spoil.\529\ In response to proposed Sec.  780.35, one commenter 
recommended that we restrict proposed rule changes on the minimization 
and disposal of excess spoil to where they are appropriate based on 
geography. According to the commenter, this restriction is warranted 
because of the proposed rule's reliance on data from central 
Appalachia. We disagree and have not revised the final rule in response 
to this comment because final rule Sec.  780.35 applies to any site, 
regardless of geography, where excess spoil is, or would be, generated. 
After evaluating the other comments that we received, we are adopting 
the section as proposed, with the following exceptions and responses to 
comments.
---------------------------------------------------------------------------

    \529\ 80 FR 44436, 44519-22 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (b): Demonstration of Minimization of Excess Spoil
    One commenter expressed concern that the definition of excess spoil 
could be interpreted to require spoil from an initial cut to be stored 
and hauled a significant distance to the final cut, as opposed to 
allowing the initial cut spoil to be blended into the surrounding area. 
The commenter notes that it is common practice in the Midwest to blend 
the initial cut spoil into the final approximate original contour 
configuration and leave a final cut impoundment. The commenter opined 
that a change from this practice would be extremely costly. The 
commenter was concerned that this paragraph in conjunction with the 
definition of ``excess spoil'' in Sec.  701.5, may result in material 
blended into the surrounding area being interpreted as ``excess spoil'' 
and therefore creation of an end cut impoundment would be prohibited. 
We agree with the commenter's concern, however, as discussed in the 
preamble to the definition of ``excess spoil,'' we have clarified that 
material used to blend the final configuration of the mined-out area 
with the surrounding terrain in non-steep slope areas in accordance 
with Sec. Sec.  816.102(b)(3) and 817.102(b)(3) is not considered 
excess spoil. Thus, final cut impoundments are still allowable in the 
situation described by the commenter as long as all other requirements 
of the regulations are satisfied.
    In paragraph (b)(1) of the final rule we are including a 
requirement for submission of a demonstration, with supporting 
calculations and other documentation, that the operation has been 
designed to minimize, to the extent possible, the volume of excess 
spoil that the operation will generate. One commenter expressed concern 
that the requirement to demonstrate that the operation has been 
designed to minimize, to the extent possible, the volume of excess 
spoil that the operation will generate could be applied to temporary 
overburden stockpiles, such as those created by dozers, truck, loaders, 
shovels, or draglines, and which will be used for future reclamation. 
As discussed more fully in the preamble discussion of the definition of 
``excess spoil'' in Sec.  701.5, we added paragraph (5) to the 
definition of ``excess spoil'' to specifically exclude temporarily 
placed material from the definition. This modification will ensure that 
temporary overburden stockpiles are not subjected to this requirement.
    In paragraph (b)(2)(iii), we proposed to limit postmining drainage 
structures, access roads, and berms on the perimeter of the backfilled 
area to a maximum width of 20 feet unless a need for greater width is 
demonstrated. In the proposed rule, we invited comment on whether the 
maximum width should be larger or smaller than 20 feet.\530\ In 
response, a commenter suggested that the maximum width should be 
increased to 50-70 feet and that this increase would not place 
additional burden upon industry or the regulatory authority. Similarly, 
other commenters expressed concern that this limitation could result in 
unsafe conditions because, in their view, greater widths for roadways, 
along with safety berms and drainage structures, are necessary for safe 
operation during mining. In addition, some commenters questioned 
whether this limitation would be in conflict with typical state and 
federal safety regulations that are derived from typical mining and 
haulage equipment dimensions. We are adopting this paragraph as 
proposed. It is true that the widths of these structures may need to be 
greater during active mining to ensure safe operations and compliance 
with state or federal safety regulations. However, it is also true that 
adoption of this limitation should not impact safety because it is only 
applicable to the drainage structures, access roads, and berms on the 
perimeter of the backfilled area that remain after completion of mining 
and final grading. After final grading is complete, access to the 
perimeter of the backfilled area by mining or haulage equipment is not 
normally required. Moreover, in final paragraph (b)(2)(iii) we have now 
provided a narrow exception in cases where the permittee demonstrates 
an essential need to exceed the maximum width of 20 feet. We expect 
that the number of such cases will be very small because the 20 foot 
width is sufficient in most circumstances. Examples of an ``essential 
need'' would include a situation where there is no other alternative 
that will allow access to an area with a postmining land use that 
requires the use of large off-road or commercial vehicles.
---------------------------------------------------------------------------

    \530\ 80 FR 44436, 44520-44521 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Paragraph (b)(4) prohibits the creation of a permanent impoundment 
under Sec.  816.49(b) or the placement of coal combustion residue or 
noncoal materials in the mine excavation if doing so would result in 
the creation of excess spoil. We received many

[[Page 93223]]

comments about the correlation between the allowance of final cut 
impoundments and this section. A final cut impoundment results when no 
material is available to fill the final cut in an area mine. In most 
cases, material from the initial cut will have been used to blend the 
backfilled area into the surrounding topography. Although the term 
``final cut impoundment'' is commonly used by industry and regulatory 
authorities, we have replaced it with the term ``permanent 
impoundment'' in the final rule to be consistent with section 515(b)(8) 
of SMCRA.\531\ Some commenters opined that allowing these final cut 
impoundments to remain as permanent impoundments is contrary to the 
SMCRA requirement to achieve approximate original contour after mining 
is completed. We disagree. Permanent impoundments, of which final cut 
impoundments are one example, are specifically allowed in the 
definition of approximate original contour in paragraph (2) of section 
701 of SMCRA.\532\ However, the permittee is required to achieve 
approximate original contour on the remainder of the backfilled mined 
area.
---------------------------------------------------------------------------

    \531\ 30 U.S.C. 1265(b)(8).
    \532\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

    A commenter alleged that we are attempting to limit the size of 
what the commenter characterized as ``final cut impoundments'' to no 
more than what is needed to support the approved postmining land use 
and that there is no legal basis for that limit. Although the comment 
was not clear, because the commenter referred to impoundments in 
connection with approved postmining land uses, we concluded that the 
commenter was referencing permanent impoundments. We disagree with 
commenter's assertion. Section 515(b)(8) of SMCRA \533\ specifically 
links the size of an impoundment with its intended purpose. The 
allowable size of any permanent impoundment is based on its intended 
use as part of the postmining land use. However, there is nothing in 
the language of paragraph (b)(4) that explicitly or implicitly creates 
an additional limitation on permanent impoundment size.
---------------------------------------------------------------------------

    \533\ 30 U.S.C. 1265(b)(8).
---------------------------------------------------------------------------

Final Paragraph (c): Preferential Use of Preexisting Benches for Excess 
Spoil Disposal
    After consideration of the comments related to performance 
standards about disposing of excess spoil on preexisting benches, we 
have added paragraph (c) to the final rule. This paragraph adds a 
permitting requirement to match the performance standards of final rule 
Sec.  816.74. Paragraph (c) aids in the minimization of placement of 
excess spoil, to the extent possible, on undisturbed land. The previous 
regulations at Sec.  816.74 allow, but do not require, placement of 
excess spoil on preexisting benches. Paragraph (c) requires that excess 
spoil placement on preexisting benches be maximized before any excess 
spoil fills can be constructed. Therefore, if surface mining is 
proposed in an area where mine benches from pre-law contour mining 
remain in the vicinity of the proposed permit, you must demonstrate how 
you will maximize placement of excess spoil on preexisting benches 
before you place any on undisturbed land.
Final Paragraph (e): Requirements Related to Perennial and Intermittent 
Streams
    One commenter suggested we replace the term ``bankfull elevation'' 
with the term ``ordinary high water mark'' because the latter term is 
the one more commonly used and more easily measured. We agree and have 
revised paragraph (e) of the final rule so that the term ``ordinary 
high-water mark'' is used to represent the location on the cross 
section of a stream channel from which the 100-foot streamside 
vegetative corridor, which is now required by Sec.  780.28(d), is 
measured. This change is consistent with the addition of the term 
``ordinary high water mark'' throughout the final rule, including the 
final definition of ``ordinary high water mark'' in Sec.  701.5.
Final Paragraph (f): Location and Profile
    Proposed paragraph (e)(2), now final paragraph (f)(2), requires 
that fills be located on the most moderately sloping and naturally 
stable areas available. One commenter expressed concern that this 
requirement would encourage more fills in intermittent or perennial, 
rather than ephemeral streams. Paragraph (f)(2), however, should not be 
read in isolation and in fact requires the regulatory authority to 
determine the areas that are available for excess spoil fill 
construction after considering requirements of the Act,\534\ and this 
chapter. These other requirements would include the stability 
requirements of paragraph (b) of Sec.  816.71, relating to the 
disposition of excess spoil; the protections for perennial and 
intermittent streams as set out in Sec.  780.28; and the requirement in 
Sec.  816.71(a)(4) to minimize excess spoil and its adverse impacts on 
fish, wildlife, and other environmental values. Paragraph (b)(3) of 
this section, moreover, allows placement of spoil in the mined area to 
heights in excess of the premining elevation, whereas Sec. Sec.  
780.27(b)(2)(v) and 780.28(c)(2)(v) allow alteration of the premining 
drainage pattern in the mined area to accommodate construction of 
excess spoil fills. The intent of these provisions taken together is to 
minimize construction of excess spoil fills on undisturbed land, by 
moving spoil upslope, and to the extent possible, into the mined area, 
thereby minimizing the potential for spoil placement to impact streams, 
particularly perennial and intermittent streams.
---------------------------------------------------------------------------

    \534\ 30 U.S.C. 1265(b)(22)(E).
---------------------------------------------------------------------------

    The same commenter also alleged that this requirement would, in 
many cases, necessitate using the stream channel as a sediment 
conveyance. We disagree. Movement of excess spoil upslope, and into the 
mined area in conjunction with the requirement of Sec.  816.57(h)(ii) 
to place siltation structures as near as possible to the toes of fills, 
will virtually eliminate the possibility of streams being used as 
sediment conveyances in connection with spoil placement.
Final Paragraph (h): Geotechnical Investigation
    Proposed paragraph (g)(6), now paragraph (h)(6), requires the 
performance of stability analyses that addresses static, seismic, and 
post-earthquake (liquefaction) conditions because those conditions are 
part of a comprehensive stability analysis. One commenter stated that 
post-earthquake (liquefaction) conditions should not be a required part 
of a stability analysis because liquefaction is not a concern in 
coarse-sized mine spoil composed of a large fraction of rock material. 
Moreover, a liquefaction analysis would be a costly exercise with no 
apparent benefit.
    We agree that the potential for liquefaction is primarily a concern 
in loose, saturated, relatively fine-grained soil materials, such as 
materials that are impounded in slurry impoundments and incorporated 
into upstream constructed impoundments. Excess spoil consists of soil 
and rock mixtures placed and compacted in an unsaturated state. 
Materials of this type, and placed in this manner, are not normally 
susceptible to liquefaction. Therefore, we have removed the requirement 
that the stability analysis include post-earthquake (liquefaction) 
conditions from the final rule. Excess spoil fills remain subject to 
all other slope stability requirements in final rule Sec. Sec.  816.71 
and 817.71, relating to disposal of excess spoil.

[[Page 93224]]

Section 780.37: What information must I provide concerning access and 
haul roads?
Final Paragraph (a): Design and Other Application Requirements
    Paragraph (a)(4)(i) of final rule Sec.  780.37 requires that the 
permit application identify each road that you propose to locate in or 
within 100 feet, measured horizontally on a line perpendicular to the 
stream, beginning at the ordinary high water mark, of a perennial or 
intermittent stream. The final rule differs from the proposed rule in 
that it specifies that the measurement must begin at the ordinary high 
water mark of the stream, rather than at the bankfull elevation of the 
stream. A commenter on another rule with the 100-foot provision 
recommended this change because it is both more commonly used and 
readily determined than the bankfull elevation. We have made this 
change universally throughout our regulations.
    Final paragraph (a)(5) requires that the permit application explain 
why the roads, fords, and stream crossings identified in paragraph 
(a)(4) are necessary and how they comply with the applicable 
requirements of Sec.  780.28 and Sec.  816.150(b)(5) and (d) and Sec.  
816.151(d)(2), (e)(5), and (e)(6). The final rule differs from the 
proposed and previous rules in that it adds fords, which are subject to 
the requirements of Sec.  780.28 and thus should be included in the 
explanation required by paragraph (a)(5). The final rule also replaces 
the reference to section 515(b)(18) of SMCRA \535\ in the proposed and 
previous rules with a reference to the regulations implementing that 
provision of SMCRA. This revision is nonsubstantive in nature because 
an applicant must comply with the referenced rules anyway, but adding 
the citations makes the rule more user-friendly, internally consistent, 
and easier to understand.
---------------------------------------------------------------------------

    \535\ 30 U.S.C. 1265(b)(18).
---------------------------------------------------------------------------

Final Paragraph (c): Standard Design and Plans
    In response to proposed paragraph (c) a commenter pointed out that 
the cross reference to Sec.  816.151(b) regarding factors of safety was 
in error and that the correct cross reference should be paragraph (c) 
of Sec.  816.151. Likewise, the commenter noted the identical problem 
existed in proposed Sec.  784.37(c) which similarly cited proposed 
Sec.  817.151(b) instead of paragraph (c). We have made the necessary 
corrections to the final rule at both Sec. Sec.  780.37(c) and 
784.37(c).
Section 780.38: What information must I provide concerning support 
facilities?
    We are finalizing Sec.  780.38 as proposed. We received no comments 
on this section.

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

Section 783.1: What does this part do?
    With the exception of altering the title of this section for 
clarity, we are finalizing Sec.  783.1 as proposed. We received no 
comments on this section.
Section 783.2: What is the objective of this part?
    We are finalizing Sec.  783.2 as proposed. We received no comments 
on this section.
Section 783.4: What responsibilities do I and government agencies have 
under this part?
    We are finalizing section 783.4 as proposed. We received no 
comments on this section.
Section 783.10: Information Collection
    Section 783.10 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 783.
Previous Sec.  783.11: General Requirements
    Like proposed Sec.  779.11, the surface mining counterpart to Sec.  
783.11, we have removed and reserved previous Sec.  783.11 for the 
reasons discussed in the preamble to the proposed rule.\536\
---------------------------------------------------------------------------

    \536\ 80 FR 44436, 44482 (Jul. 27, 2015).
---------------------------------------------------------------------------

Previous Sec.  783.12: General Environmental Resources Information
    Like proposed Sec.  779.12, the surface mining counterpart to Sec.  
783.12, we have removed and reserved previous Sec.  783.12 for the 
reasons discussed in the preamble to the proposed rule.\537\
---------------------------------------------------------------------------

    \537\ 80 FR 44436, 44482 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 783.17: What information on cultural, historic, and 
archeological resources must I include in my permit application?
    We are finalizing Sec.  783.17 as proposed. We received no comments 
on this section.
Section 783.18: What information on climate must I include in my permit 
application?
    We are finalizing Sec.  783.17 as proposed. We received no comments 
on this section.
Section 783.19: What information on vegetation must I include in my 
permit application?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  779.19, which is the surface mining 
counterpart to Sec.  783.19.
Section 783.20: What information on fish and wildlife resources must I 
include in my permit application?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  779.20, which is the surface mining 
counterpart to Sec.  783.20.
Section 783.21: What information on soils must I include in my permit 
application?
    Similar to its surface mining counterpart found at Sec.  779.21, 
Sec.  783.21 identifies the information on soils that must be included 
in a permit application. However, Sec.  783.21 is exclusive to 
underground mining permits.
    Several commenters urged us to increase prime farmland 
reconnaissance surveys to include areas beyond the permit area and to 
extend these surveys into the adjacent area for areas that will be 
undermined. Moreover, some commenters recommended that all applicable 
soil survey information, including information required for the permit 
area, be included if prime farmland is identified in the adjacent area. 
In addition, some commenters recommended that all standards required by 
Sec.  785.17, related to prime farmland, as well as Sec.  823.15, 
related to revegetation and restoration of soil productivity, be fully 
applicable if prime farmlands are damaged by subsidence in the adjacent 
area. We are not accepting the suggestions in these comments because 
impacts caused by surface mining on prime farmland soils differ from 
impacts caused by mine subsidence. In surface mining, soil layers must 
be removed prior to mining. Those soil layers are later replaced as 
part of reclamation as further explained in final rule Sec.  816.22(e). 
This is fundamentally different from what occurs from the settling of 
the soil layers caused by mine subsidence. It would not be appropriate 
to salvage soil layers prior to subsidence. In fact, doing so would 
have far greater impact on the

[[Page 93225]]

soil resource than would normally be caused by mine subsidence. 
Moreover, damage caused by subsidence can be frequently mitigated 
without the need for any soil salvaging. This is not true when compared 
to impacts caused by surface mining or impacts related to mining 
activities on the permit area of underground mines that would result in 
the destruction of the soil resource should it not be appropriately 
salvaged as required by Sec.  817.22. Therefore, the regulations 
governing the soils above areas that are undermined are appropriately 
different. The determination that different standards apply to soils 
for undermined areas is consistent with SMCRA, which recognizes the 
distinct difference between surface coal mining and underground coal 
mining.\538\ The requirements at Sec. Sec.  784.30 and 817.121 
satisfactorily address the restoration of damages from underground 
mining caused to prime farmland as well as damage to any renewable 
resource lands. Moreover, any comments related to suggestions to amend 
the prime farmland regulations at Sec. Sec.  785.17 or 823.15 are not 
germane to this rulemaking and would be better suited to consideration 
under a potential future rulemaking on that topic.
---------------------------------------------------------------------------

    \538\ 30 U.S.C. 1266(a).
---------------------------------------------------------------------------

Section 783.22: What information on land use and productivity must I 
include in my permit application?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  779.22, which is the surface mining 
counterpart to Sec.  783.22.
Section 783.24: What maps, plans, and cross-sections must I submit with 
my permit application?
    Similar to its surface mining counterpart found at Sec.  779.24, 
Sec.  783.24 identifies what maps, plans, and cross-sections must be 
included in a permit application. However, Sec.  783.24 is exclusive to 
underground mining permits.
    As proposed, Sec.  783.24(a)(23) would have required that the 
application include maps, plans, or cross-sections showing the location 
and extent of known workings of active, inactive, or abandoned 
underground mines located either within the proposed permit area or 
within a 2,000-foot radius in any direction of the proposed underground 
workings. One commenter stated this requirement conflicts with the 
``reasonable possibility of adverse impacts in the adjacent area'' 
included in the definition of adjacent area within Sec.  701.5. It is 
also inconsistent with a similar requirement in Sec.  779.24(a)(23) 
which does not have the 2,000-foot stipulation. We agree with the 
commenter and have removed the 2,000-foot radius requirement from the 
final rule.
    One commenter asserted that the water well data required in 
proposed Sec.  783.24(a) is redundant, will not serve any substantial 
purpose, and will be time consuming and costly to obtain. It was 
suggested that the regulatory authority be allowed flexibility in 
determining what type and the volume of well data is necessary to be 
submitted in the permit application and that some of the data be 
allowed to be maintained at the mine site for review. While we 
recognize that the collection of groundwater data will have associated 
costs, the data are necessary to determine the hydrogeology of the 
proposed mine site and adjacent areas so the applicant may properly 
evaluate and prepare a comprehensive determination of the probable 
hydrologic consequences of the proposed operation. The data are also 
necessary to support development of the hydrologic reclamation plan 
required by final rule Sec.  780.22 and the cumulative hydrologic 
impact assessment required by final rule Sec.  780.21. Therefore, we 
have not modified the final rule in response to this comment.
Previous Sec.  783.25: Cross Sections, Maps, and Plans
    Like proposed Sec.  779.25, the surface mining counterpart to Sec.  
783.25, we have removed and reserved previous Sec.  783.25 for the 
reasons discussed in the preamble to the proposed rule.\539\
---------------------------------------------------------------------------

    \539\ 80 FR 44436, 44482 and 44523 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 783.26: May I submit permit application information in 
increments as mining progresses?
    We received several comments urging us to allow applicants to 
submit permit application information for the adjacent area in stages, 
especially for underground mining operations. Commenters alleged that 
requiring information for the entire adjacent area would be 
exorbitantly expensive and result in collection of data that either 
would be outdated by the time that underground mining activities could 
affect areas located distant from the area in which mining initially 
begins or would be useless because of changes in mining plans. One 
commenter also urged us to allow incremental monitoring of the adjacent 
area. According to the commenter, the applicant would have to obtain 
property for well installations in areas that would not normally 
require property control, which would be incredibly costly and 
difficult to obtain.
    After considering these comments, we added two new Sec. Sec.  
783.26 and 784.40, to the final rule to allow incremental submission of 
permit application information for underground mines and incremental 
initiation of monitoring of groundwater, surface water, and the 
biological condition of perennial and intermittent streams in the 
adjacent area of underground mines. We decided not to allow incremental 
submission of permit application information and incremental initiation 
of monitoring for surface mines because surface mining involves much 
more extensive surface disturbance than underground mining and because 
most surface mines have a much shorter life than underground mines.
    The chief drawback of allowing incremental submission of permit 
application information is that there may be insufficient information 
for the regulatory authority to prepare the cumulative hydrologic 
impact assessment or to make the findings required for approval of a 
permit application. Therefore, final rule Sec.  783.26(b) specifies 
that the regulatory authority has complete discretion in deciding 
whether to grant a request for incremental submission of permit 
application information. The final rule also establishes minimum 
requirements and criteria for both requests for incremental submission 
and processing of those requests.
    Specifically, paragraph (b)(1) of the final rule provides that each 
increment must be clearly defined. It also requires that each increment 
include at least five years of anticipated mining. This time period is 
equivalent to the standard term of a permit under final rule Sec.  
773.19(c) and section 506(b) of SMCRA.\540\
---------------------------------------------------------------------------

    \540\ 30 U.S.C. 1256(b).
---------------------------------------------------------------------------

    Paragraph (b)(2) requires that the schedule include a map showing 
the limits of underground mining activity under each increment. It also 
requires establishment of those limits in a manner that will prevent 
any impact on the succeeding increment before the regulatory authority 
approves mining within that increment.
    Paragraph (b)(3) requires submission of data for each successive 
increment at least one year in advance of any anticipated impacts of 
underground mining upon that increment. This time period is consistent 
with final rule Sec.  784.19(b) and (c), which require a minimum of 12 
months of baseline

[[Page 93226]]

monitoring data in each permit application.
    Paragraph (b)(4)(i) provides that the regulatory authority must 
condition the permit to require that the permittee reevaluate the 
adequacy of the probable hydrologic consequences determination under 
Sec.  784.20 and the hydrologic reclamation plan under Sec.  784.22 as 
part of each submission. The absence of baseline permit application 
information for all increments at the time of permit application 
approval means that the permittee must use the baseline data collected 
for each successive increment to reevaluate the accuracy of the 
probable hydrologic consequences determination and the adequacy of the 
hydrologic reclamation plan before the mining operation may affect the 
new increment.
    Similarly, paragraph (b)(4)(ii) provides that the regulatory 
authority must condition the permit to prohibit the conduct of any 
underground mining activity that might impact an increment before the 
regulatory authority reviews the information submitted for that 
increment, updates the cumulative hydrologic impact assessment prepared 
under Sec.  784.21 to incorporate that information, and determines that 
the findings made at the time of approval of the permit application 
under Sec.  773.15 remain accurate. If the regulatory authority cannot 
make this determination, it must require that the permittee either 
cease mining or revise the permit in a manner that will correct that 
problem and enable the regulatory authority to make the necessary 
findings.
    Final rule Sec.  784.40 provides that the requirements, procedures, 
and criteria of 30 CFR 783.26 apply with equal force to the permit 
application information requirements of part 784. In addition, in 
response to the comment discussed above, Sec.  784.40(c) specifies that 
the plans submitted under Sec.  784.23 for monitoring of groundwater, 
surface water, and the biological condition of perennial and 
intermittent streams may be structured and implemented in an 
incremental manner consistent with the schedule approved under 
paragraph (b).

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

Section 784.1: What does this part do?
    With the exception of altering the title of this section for 
clarity, we are finalizing Sec.  784.1 as proposed. We received no 
comments on this section.
Section 784.2: What is the objective of this part?
    We are finalizing Sec.  784.2 as proposed. We received no comments 
on this section.
Section 784.4: What responsibilities do I and government agencies have 
under this part?
    We are finalizing Sec.  784.4 as proposed. We received no comments 
on this section.
Section 784.10: Information Collection
    Section 784.10 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 784.
Section 784.11: What must I include in the general description of my 
proposed operations?
    We are finalizing Sec.  784.11 as proposed. We received no comments 
on this section.
Section 784.12: What must the reclamation plan include?
Final Paragraph (b): Reclamation Timetable
    We received comments urging us to extend the requirements for 
reclamation plans to areas adjacent to the permit area including areas 
located above underground mine works. The commenters stated that the 
restoration plan and reclamation timetable should address restoration 
of the form of all perennial and intermittent stream segments through 
or beneath which mining will occur. These commenters suggested that 
under paragraph (b) we should require detailed timetables for the 
restoration of the form and function of streams that are damaged by 
subsidence and that reclamation plans should include lands disturbed 
within the area adjacent to the permit area. We are not adopting this 
suggestion because impacts caused by subsidence in the areas adjacent 
to underground mines are appropriately addressed in other sections of 
this regulation. As we discuss in Sec.  783.21 and elsewhere within 
this preamble, under section 516(a) of SMCRA; \541\ we are authorized 
to adopt regulations that consider the distinct differences between 
surface and underground mining. Specifically, Sec.  784.30 identifies 
features, including certain structures and renewable resource lands 
that may be materially damaged by subsidence. Furthermore, in Sec.  
817.121, we require the development of plans to account for the 
correction of damages caused by subsidence to these features. In 
particular, Sec.  817.121 requires repair of damages to wetlands, 
streams or other water bodies caused by subsidence.
---------------------------------------------------------------------------

    \541\ 30 U.S.C. 1266(a).
---------------------------------------------------------------------------

Section 784.13: What additional maps and plans must I include in the 
reclamation plan?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  780.13, which is the surface mining 
counterpart to Sec.  784.13.
Section 784.14: What requirements apply to the use of existing 
structures?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  780.14, which is the surface mining 
counterpart to Sec.  784.14.
Section 784.16: What must I include in the fish and wildlife protection 
and enhancement plan?
Final Paragraph (d): Enhancement Measures
    One commenter suggested that we clarify that the enhancement 
measures enumerated in proposed rule (d)(2), final rule paragraph 
(d)(3), are only necessary where there are actual long-term adverse 
impacts as opposed to only projected impacts before mining operations 
have begun. This commenter opined that the need for ``permanent'' 
enhancement measures cannot be established prior to beginning 
operations and until the potential resultant subsidence has actually 
occurred. The commenter misinterprets our rule. Paragraph (d) applies 
only to activities conducted on the surface of the land. Other 
commenters asserted that we made no distinction between surface and 
underground mines and that it is unclear if the required enhancement 
measures are applicable to the permit area only or to the permit area 
and the area overlying the underground workings. To clarify this point, 
we revised paragraph (d)(3)(i) to state, ``if you propose to conduct 
activities on the land surface that would result in'' to eliminate any 
confusion regarding underground mining. Subsidence impacts on streams 
are regulated under Sec.  784.30 and 817.121. Activities subject to 
paragraph (d)(3) include, but are not limited to, the construction of 
refuse piles or slurry impoundments in intermittent or perennial 
streams.

[[Page 93227]]

Previous Sec.  784.17: Protection of Publicly Owned Parks and Historic 
Places
    We have removed previous Sec.  784.17 to final rule Sec.  784.31. 
Section 784.17 is now reserved.
Previous Sec.  784.18: Reclamation Plan: General Requirements
    We have removed and reserved previous Sec.  784.18. Like previous 
Sec.  780.18, the surface mining counterpart to previous Sec.  784.18, 
and as discussed in the preamble to the proposed rule we have moved and 
revised many aspects of previous Sec.  784.18 to final rule Sec.  
780.12.\542\
---------------------------------------------------------------------------

    \542\ 80 FR 44436, 44487-44493 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 784.19: What baseline information on hydrology, geology, and 
aquatic biology must I provide?
    In addition to the comments we received about baseline information 
for surface mining permits and comments that addressed both surface 
mining and underground mining permit applications baseline information, 
we received comments exclusive to the impact of the proposed rule upon 
underground mining. While we discussed the baseline information 
relative to surface mining in Sec.  780.19, we are addressing the 
comments that are exclusive to underground mining in this section.
    A commenter requested stream sampling to be restricted to streams 
over the shadow areas of underground mines that use planned subsidence 
(i.e., longwall or high extraction room and pillar mining method). We 
have not made any changes in response to this comment. Although the 
typical room and pillar mining method leaves pillars in place to 
support the overlying overburden, all underground operations create 
mine voids that have the potential to result in a groundwater sink 
forming over large areas. Depending on the magnitude of the groundwater 
sink, impacts can range from none to full scale aquifer de-watering 
over large areas, especially if pillar or retreat mining occurs. The 
presence of fine grained lithology (silt and claystone), typically 
found in the overburden above coal seams, can mitigate the impacts 
experienced at the surface, but these geologic formations do not 
prevent all hydrologic impacts, especially in stream valleys with deep 
stress relief fractures, which can extend to 150 feet deep.\543\ Any 
underground mine operating in overburden less than 150 feet deep or 
that experiences pillar failure can intercept those fractures and 
negatively impact the flow regime in overlying streams.
---------------------------------------------------------------------------

    \543\ Jay W. Hawkins et al., Shallow Ground Water Flow in 
Unmined Regions of the Northern Appalachian Plateau: Part 1 and Part 
2. Physical Characteristics. 1996 Annual Meeting of the American 
Society for Surface Mining and Reclamation, Knoxville, TN (1996).
---------------------------------------------------------------------------

    Another commenter noted a misplaced requirement in proposed 
paragraph (b)(6)(i)(C) that required monitoring points to be located in 
a representative number of ephemeral streams within the proposed permit 
and adjacent areas. Because that section of the regulations relates to 
groundwater information, final paragraph (b)(6)(i)(C) now specifies 
that a permit applicant locate monitoring points within the proposed 
permit area and the area overlying the proposed underground workings.
Final Paragraph (c): Surface-Water Information
    One commenter alleged that no evidence of significant damage to 
streams resulting from longwall mining activity existed and that we 
provided no rationale for requiring operators to collect a substantial 
volume of environmental and engineering data that would support 
requiring stream assessments as proposed in paragraph (c)(6). Further, 
commenters claimed that the proposed assessments provided no specific 
purpose with respect to satisfying permit and bonding obligations. The 
commenters also indicated that the data collection would be costly and 
time consuming, and would provide neither the industry nor the 
regulatory agency with the information necessary to demonstrate whether 
or not streams have actually been damaged. We disagree with these 
comments. Numerous examples exist of longwall damage to streams both in 
United States and abroad, mostly in the form of dewatered stream 
channels.\544\ For this reason, the data requests, engineering 
analysis, and hydrologic assessments are necessary to understand the 
geologic and hydrologic environment and to enable accurate hydrologic 
consequences and impact assessments.
---------------------------------------------------------------------------

    \544\ See, e.g., C.J. Booth, et al., Hydrogeologic Impacts of 
Underground (Longwall) Mining in the Illinois Basin, Proceedings: 
Third Workshop on Surface Subsidence Due to Underground Mining, 
Morgantown, W.Va., June 1-4, 1993, pp. 222-227; B.M. Stout, Impact 
of longwall mining on headwater streams in northern West Virginia, 
West Virginia Research Institute. Morgantown, W. Va. pg. 35 (2002), 
see also Wilkowske, 2007.
---------------------------------------------------------------------------

Final Paragraph (c)(3): Surface-Water Quantity Descriptions
    We modified the final rule at paragraph (c)(3) to remove the 
reference to ``ephemeral streams'' because this section applies only to 
perennial and intermittent streams. In response to proposed paragraph 
(c)(3)(D) about seepage-run sampling, one commenter stated that it is 
not reasonable to require seepage run analyses on ephemeral streams. We 
agree. Our removal of the reference to ``ephemeral streams'' addresses 
this concern. Other commenters expressed concern about the requirement 
for seepage analysis when longwall mining methods are employed beneath 
a perennial or intermittent stream. Specifically, one commenter favored 
the proposed language and suggested a seepage analysis for all coal 
mining operations adjacent to streams to help determine the 
interconnections between the surface and ground water systems and the 
proposed mine site. In a similar comment, another commenter suggested 
that seepage run analysis include all mining scenarios, not just 
longwall mining. We decline to add this language for all mining 
operations but note that sufficient flexibility exists for a regulatory 
authority to require such additional information if deemed necessary. A 
commenter commended us for requiring seepage run analysis, but 
recommended strengthening the language to include analysis of the 
entire length of an intermittent or perennial stream within and outside 
the permit area and performed at both low and high flow conditions to 
characterize the seepage under a variety of flow conditions. We have 
accepted this comment and have modified the rule language at Sec.  
784.19(c)(3)(D) to clarify where and when the seepage analysis is to 
occur. Another commenter requested that we clarify where, when, and how 
seepage analysis should be conducted. We decline to prescribe 
additional requirements as to where, when, and how the analysis should 
be done other than as described in paragraphs (c)(3), which requires 
all measurements to be made using generally-accepted professional 
techniques approved by the regulatory authority.
    One commenter indicated the seepage run determinations do not take 
into account evaporation or uptake of water by plants and any analysis 
would necessarily be greatly influenced by temporal and seasonal 
weather events. The commenter opined that the proposed regulation would 
impose an onerous and costly sampling requirement that may not 
represent the actual reasons for changes in streamflow. We do not agree 
with the commenter because evapotranspiration is a minor component of 
the seepage analysis due to the location and depth of the water 
potentially moving toward

[[Page 93228]]

the mining. Stated another way, the water under analysis has already 
undergone evapotranspiration losses on its journey into the groundwater 
system. We also agree that groundwater is subject to seasonal and 
weather influences. However, the objective of the regulatory 
requirement for a seepage analysis is to document the interaction of 
proposed, and existing, mine pool(s) with the surface and groundwater 
systems adjacent and overlying the mined area. The regulatory authority 
has the discretion to decide the level of detail provided in the 
seepage analysis that accomplishes the objective.
    One commenter opined that the problems associated with subsidence-
induced stream loss were limited to the Appalachian region and should 
not be required throughout the country. They further suggested that 
each regulatory authority should have the latitude to decide the need 
for such analysis. We are not implementing these suggestions for 
several reasons. First, stream loss over longwall mined areas is not 
specific to the Appalachian Region. Stream de-watering has occurred in 
the Illinois coal basin, in the western United States, and abroad. 
Second, longwall mining causes subsidence in the overburden and induces 
fracturing in the overburden which can extend upwards from 24 to 54 
times the mined height with a surface fracture zone extending from the 
land surface down to 50 feet.\545\ Furthermore, these fractures can 
connect with natural stress relief fracturing in the valley floor which 
ultimately can produce impacts to the overlying aquifer units and 
surface water system. These impacts to overlying aquifers and surface 
water can cause stream de-watering as the hydrologic balance re-
equilibrates to the new hydrologic stress imposed by the subsidence 
created by longwall panels. For these reasons, an assessment of the 
potential for underground mines to cause stream loss in overlying 
streams should be performed in all situations, regardless of region. 
Such an analysis is required to definitively state in the probable 
hydrologic consequences and cumulative hydrologic impact assessment and 
associated written findings that material damage to the hydrologic 
balance will not occur as a result of the proposed operation.
---------------------------------------------------------------------------

    \545\ C.J. Coe & S.M. Stowe, Evaluating the Impact of Longwall 
Mining on the Hydrologic Balance, In: Proceedings, National Water 
Well Association Conference on the Impact of Mining on Ground Water, 
National Water Well Assoc. (1984).
---------------------------------------------------------------------------

Final Paragraph (c)(6): Stream Assessments
    Some commenters asserted that the information contained in proposed 
Sec.  780.19(c)(6)(ii) and (iii) for a description of the riparian zone 
and for the biological condition of each stream segment is unnecessary 
in areas located above underground mine works. As proposed, these 
specific sections were only applicable to surface mining operations, 
while the counterpart to these provisions for underground mines was 
proposed within proposed Sec.  784.19(c)(6)(ii) and (iii). Upon 
reconsideration, we have revised Sec.  784.19(c)(6)(i) and (ii) in our 
final rule for underground mines to make it identical to Sec.  
780.19(c)(6)(ii) and (iii). For both sections, the data requirements 
are identical and pertain to permitted and adjacent area (for 
underground mines, the area overlying the underground works). In final 
rule paragraphs (c)(6)(ii) and (iii) of Sec. Sec.  780.19 and 784.19, 
we removed the phrase ``riparian zone'' and replaced it with 
``vegetation along the banks of each stream.'' We made this slight 
change to clarify the intent of the rule language and avoid confusion 
related to how ``riparian area'' would be interpreted.
    Assessing the biological condition of each ephemeral, intermittent, 
or perennial stream that could be impacted by subsidence is critical 
with respect to determining potential impacts to aquatic communities 
and the possibility for material damage to the hydrologic balance 
outside the permit area. Therefore, we have retained requirements 
within the final rule at paragraphs (c)(6)(vii) and (viii), which 
requires biological condition assessments for underground mines. In 
Sec.  784.19(c)(6)(v), we also added a requirement to identify the 
presence of and to assess the quality of wetlands adjoining streams on 
the permitted and adjacent areas. These two additions are in response 
to comments from other federal agencies requesting such and will 
provide further clarification about the level of detail needed to 
document baseline conditions. The additions will also ensure 
restoration of any streamside vegetative corridor and wetlands impacted 
by mining in or near streams. These assessment requirements are also 
consistent with 515(b)(19) of SMCRA \546\ which requires establishment 
of ``a diverse, effective, and permanent vegetative cover of the same 
seasonal variety native to the area of land to be affected and capable 
of self-regeneration and plant succession at least equal in extent of 
cover to the natural vegetation of the area.''
---------------------------------------------------------------------------

    \546\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

Final Paragraph (g): Exception for Operations That Avoid Streams
    One commenter requested that we clarify the term ``modify'' in 
proposed paragraph (h)(3), now final paragraph (g)(3). That provision 
allows a waiver of the biological information requirements if it can be 
demonstrated to the regulatory authority's satisfaction that the 
proposed operation will not ``modify the baseflow of any perennial or 
intermittent stream.'' The common definition of ``modify'' as found in 
any dictionary is sufficient and the regulatory authority is in the 
best position to determine if the baseflow of a perennial or 
intermittent stream has been modified. We expect that the regulatory 
authority will broadly interpret the word ``modify'' in the context of 
baseflow changes but only to include changes likely to result from 
mining. Prudence dictates that the regulatory authority would require 
the operator to have obtained the necessary baseline data to support or 
defend potential impacts that may result from mining before granting 
this waiver. We also expect that underground mines that intend to 
undermine a stream will be required to conduct the baseline stream 
assessment regardless of any potential baseflow modification consistent 
with paragraphs (c)(1) and (c)(3)(i) of Sec.  784.19.
Section 784.20: How must I prepare the determination of the probable 
hydrologic consequences of my proposed operation (PHC determination)?
    As discussed in the preamble to the proposed rule, Sec.  784.20 
explains the requirements of the determination of the probable 
hydrologic consequences of a proposed operation.\547\ After evaluating 
the comments that we received exclusive to the impacts of underground 
mining, we are not making changes to the final rule.
---------------------------------------------------------------------------

    \547\ 80 FR 44436, 44526 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): Content of PHC Determination
    Proposed Sec.  784.20 is substantively identical to Sec.  780.20, 
which pertains to surface mining, with the exception of paragraphs 
(a)(3), (a)(6), and (a)(7).
    Some commenters suggested that we add specific language to Sec.  
784.20 to require that the probable hydrologic consequences 
determination contain a finding that the operation does not have the 
potential for causing subsidence-related dewatering that would lead to

[[Page 93229]]

material damage to the hydrologic balance outside the permit area. Such 
a provision is not necessary. Our final rule at Sec.  784.20(a)(6) 
requires the content of the probable hydrologic consequences to contain 
findings addressing the impact of subsidence from the proposed 
underground mining activities on perennial and intermittent streams. As 
stated at Sec.  784.20(a), the probable hydrologic consequences 
determination must address the impacts of the proposed operation upon 
the quality and quantity of surface water and groundwater and upon the 
biology of intermittent and perennial streams under seasonal flow 
conditions for the proposed permit and the adjacent areas. The 
determination is based an analysis of baseline hydrologic, geologic, 
biological, and other information as required in final rule Sec.  
784.19. In addition, Sec.  784.20(a)(1) requires a finding whether the 
operation may cause material damage to the hydrologic balance outside 
the permit area (i.e., in the adjacent area, above the underground 
workings.) Thus, the probable hydrologic consequences determination 
includes an assessment of any potential for subsidence-related 
dewatering to cause material damage to the hydrologic balance outside 
the permit area. Any subsidence-induced dewatering impacts analyzed in 
the probable hydrologic consequences determination at Sec.  
784.20(a)(6) must also be addressed in the hydrologic reclamation plan 
established in Sec.  784.22(a)(2).
    Several commenters were concerned with the addition of Sec.  
784.20(a)(7). Paragraph (a)(7), requires that the probable hydrologic 
consequences determination include a finding on whether the proposed 
underground workings would flood after mine closure and, if so, a 
statement and explanation of the highest anticipated potentiometric 
surface of the mine pool after closure; whether, where, and when the 
mine pool is likely to result in a surface discharge; and the predicted 
quality of any discharge from the mine pool. The regulatory authority 
is to use this information, in combination with models and calculations 
of void space and adjacent mine barrier seepage, to predict the 
probability of a blowout, where and when blowouts might occur, and the 
likelihood that water discharged as a result of the blowout will 
require treatment to meet water quality standards or any applicable 
effluent limitations. Commenters stated that the prediction of mine 
pool hydrology and potential for discharges are speculative and 
challenging and would result in increased costs during preparation of 
the permit application. It was suggested that rather than requiring a 
determination, paragraph (a)(7) should require a discussion of the 
potential of the mine pool to discharge to the ground surface. 
Commenters also suggested that this analysis only be conducted as 
necessary on a case-by-case basis. We disagree, because before mining 
begins, it is important for the regulatory authority and applicant to 
understand what will happen at mine closure with the water quality and 
quantity of the mine pool. A primary environmental threat from an 
underground mine, other than subsidence, is the formation of a post-
closure point source and non-point discharges, which often arise from 
water accumulating in the underground mind voids. These discharges may 
be acidic or alkaline in character, and contain unusually high metal 
concentrations or high total dissolved solids, resulting in elevated 
electrical conductivity in the receiving streams. The characteristic 
discharge can substantially degrade water quality and the biological 
condition of streams. The probable hydrologic consequences analysis is 
designed to address the anticipated effects of the planned mining 
operation and subsequent reclamation on the quality and quantity of 
surface water and groundwater systems within, and adjacent to, the 
proposed permit area, which should include water that accumulates in 
the mine pool. The analysis required by paragraph (a)(7) will, 
therefore provide the applicant with information regarding the 
likelihood that the proposed underground mining operation will create 
future noncompliant discharges of a perpetual nature that would require 
treatment. It will also allow the regulatory authority to prepare a 
better cumulative hydrologic impact assessment, which could lead to 
prevention measures or changes in the mining plan to avoid the creation 
a post-closure discharge that would cause material damage to the 
hydrologic balance outside the permit area in violation of section 
510(b)(3) of SMCRA.\548\
---------------------------------------------------------------------------

    \548\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter also questioned the statutory support for paragraph 
(a)(7). Section 516(d) of SMCRA states that the permitting provisions 
of Title V of the Act are applicable to ``surface operations and 
surface impacts incident to an underground coal mine with such 
modifications to the permit application requirements, permit approval 
or denial procedures, and bond requirements as are necessary to 
accommodate the distinct difference between surface and underground 
coal mining.'' \549\ This section establishes requirements for the 
probable hydrologic consequences determination, which is required by 
section 507(b)(11) of SMCRA.\550\ The probable hydrologic consequences 
determination and the cumulative hydrologic impact assessment must 
address impacts of the proposed operation on surface and groundwater 
systems, both within and outside the proposed permit area. As discussed 
above, the information required by paragraph (a)(7) is necessary to 
assess the potential impacts of the underground mining operation on 
both surface water and groundwater. Thus, the information is within the 
scope of section 507(b)(11) of SMCRA.\551\ In addition, because water 
accumulating in mine voids is a circumstance unique to underground 
mines, we are only requiring this information for proposed underground 
mining operations, which is consistent with section 516(d) of 
SMCRA,\552\ which requires modification to the SMCRA section 507 
permitting requirements as ``necessary to accommodate the distinct 
difference between surface and underground coal mining.'' \553\
---------------------------------------------------------------------------

    \549\ 30 U.S.C. 1266(d).
    \550\ 30 U.S.C. 1257.
    \551\ Id.
    \552\ 30 U.S.C. 1266(d).
    \553\ 30 U.S.C. 1257.
---------------------------------------------------------------------------

Section 784.21: What requirements apply to preparation and review of 
the cumulative hydrologic impact assessment (CHIA)?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  780.21, which is the surface mining 
counterpart to Sec.  784.21.
Section 784.22: What information must I include in the hydrologic 
reclamation plan and what information must I provide on alternative 
water sources?
    Section 784.22 sets out the information the operator must include 
in the hydrologic reclamation plan and the information that it must 
provide about alternative water sources. Although many aspects of this 
section are substantively identical to the surface mining counterpart 
found at Sec.  780.22, there are several differences that resulted in 
unique comments from industry and the public, discussed below. In 
response to these comments we have made modifications to the final 
rule.

[[Page 93230]]

Final Paragraph (a): Hydrologic Reclamation Plan
    As discussed in more detail in the preamble to Sec.  784.28, the 
final rule at Sec.  784.22(a)(2)(ii) has been revised to indicate that 
the hydrologic reclamation plan ``must include remedial measures for 
any predicted diminution of streamflow or loss of wetlands as a result 
of subsidence'' and ``must discuss the results of past use of the 
proposed remedial measures in the vicinity of the proposed mining 
operation and under similar conditions elsewhere.'' In order to assess 
the likelihood that those remedial measures will be effective to 
correct subsidence-related stream dewatering, this provision requires 
the operator and the regulatory authority to consider actual results 
that the proposed remedial measures have achieved in similar 
conditions, where available information exists. If streams in similar 
conditions have not been adequately restored, the regulatory authority 
may choose to prohibit planned subsidence mining techniques that would 
result in subsidence to streams within the adjacent area overlying the 
underground workings in order to ensure the prevention of material 
damage to the hydrologic balance outside the permit area.
Final Paragraph (b): Alternative Water Source Information
    One commenter was concerned about proposed paragraph (b)(1), 
asserting that the discussion of alternative water source information 
should specifically include extension of and connection to public water 
supply lines. We direct the commenter to the definition of 
``replacement of water supply'' in our existing regulations and the 
preamble discussion to the final rule \554\ implementing this 
definition which specifically identifies hooking-up a replacement water 
supply to a public or private water supply system as a cost to be paid 
by the permittee. We are not accepting the commenter's suggestion to 
incorporate this requirement here as it would be redundant.
---------------------------------------------------------------------------

    \554\ 60 FR 16672, 16676 (Mar. 31, 1995).
---------------------------------------------------------------------------

    Proposed and final (b)(1) require the applicant to demonstrate that 
alternative water sources are both ``available and feasible to 
develop.'' The same commenter opined that we should define the terms 
``available'' and ``feasible.'' Instead of defining these terms, we 
have added paragraph (b)(1)(ii) which, for all uses protected under 
Sec.  817.40, requires the applicant to submit, a water supply 
replacement plan that includes construction details, costs, and an 
implementation schedule. This water supply replacement plan will 
indicate whether the alternative water sources are ``available'' and 
``feasible.''
    Another commenter opined that an operator should be required to 
demonstrate in the permit application that a firm plan for a permanent 
replacement water supply system exists, that the plan should include 
details to support the furtherance of the plan, and that it should 
indicate that the permanent replacement water supply system will be 
installed and successfully operating no less than three years following 
water diminution. The commenter suggested that we implement a maximum 
three year period to resolve issues such as surface property access, 
pipeline rights-of-way concerns, as well as permitting and 
construction. It is more appropriate to require such a time limit in 
Sec.  817.40 which describes the responsibility of the operator to 
replace water supplies. In the proposed rule at paragraph (c)(3) of 
section 817.40,\555\ we required the operator to provide a permanent 
replacement water supply within two years of the date of receiving 
notice of an unanticipated loss or damage to a protected water supply 
impacted by subsidence. The three years suggested by the commenter is 
too long a period for the user or owner to go without a permanent water 
supply. However, we added text in final rule Sec.  817.40(c)(3) that 
gives the regulatory authority the discretion to grant an extension if 
the operator has made a good faith effort to meet the deadline, but has 
been unable to do so for reasons beyond its control.
---------------------------------------------------------------------------

    \555\ 80 FR 44436, 44676-44677 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 784.23: What information must I include in plans for monitoring 
of groundwater, surface water, and the biological condition of streams 
during and after mining?
    As discussed in the preamble to the proposed rule,\556\ Sec.  
784.23 describes what the operator must include in plans for monitoring 
of groundwater and surface water, and the biological condition of 
streams during and after mining. After evaluating the comments that we 
received exclusive to the impacts of underground mining, we are not 
making and changes to the final rule not that were not addressed in the 
preamble discussion of Sec.  780.23.
---------------------------------------------------------------------------

    \556\ 80 FR 44436, 44626 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (c): Biological Condition Monitoring Plan
    This paragraph describes the biological condition monitoring plan. 
Commenters alleged that we do not have the statutory authority to 
require biological monitoring requirements for underground mining 
operations, and asked that we clarify the source of our authority. Our 
authority to require biological monitoring for underground mining 
operations is detailed in section 516(b)(11) of SMCRA.'' \557\ Without 
biological monitoring for underground mining, the regulatory authority 
cannot reliably determine if disturbances and adverse impacts of the 
operation on fish, wildlife, and related environmental values have been 
minimized or enhanced. Through biological monitoring, the regulatory 
authority gains a better understanding of the requirements necessary to 
minimize disturbance and adverse impacts and enhance, where 
practicable, fish, wildlife, and related environmental values.
---------------------------------------------------------------------------

    \557\ 30 U.S.C. 1266(b)(11).
---------------------------------------------------------------------------

    Further, these commenters stated that the cause-effect 
relationships between nutrient stressors and biological responses, from 
which the designated use criteria are derived, can be highly uncertain 
and recommended that, before corrective action is assigned, the 
regulatory authority should consider natural annual variation of 
biological indices, as well as establish methods to evaluate these 
potential effects to better address regional conditions and experience 
and state-wide water quality criteria. The final rule in Sec.  
784.19(c)(6)(vii) states that the operator must adhere to a 
bioassessment protocol approved by the state or tribal agency 
responsible for preparing the water quality inventory required under 
section 305(b) of the Clean Water Act,\558\ or other scientifically-
defensible bioassessment protocol accepted by agencies responsible for 
implementing the Clean Water Act. This final rule language allows the 
regulatory authority to consider, if they choose, natural, annual 
variation of biological indices when approving the biological condition 
monitoring plan. While bioassessments will be required, the regulatory 
authority has discretion to address regional conditions and experience 
and state-wide water quality criteria.
---------------------------------------------------------------------------

    \558\ 33 U.S.C.1315(b).
---------------------------------------------------------------------------

Section 784.24: What requirements apply to the postmining land use?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  780.24, which is the surface mining 
counterpart to Sec.  784.24.

[[Page 93231]]

Section 784.25: What information must I provide for siltation 
structures, impoundments, and refuse piles?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  780.25, which is the surface mining 
counterpart to Sec.  784.25.
Section 784.26: What information must I provide if I plan to return 
coal processing waste to abandoned underground workings?
    As proposed,\559\ we are removing previous Sec.  784.26 and 
redesignating previous Sec.  784.25 as Sec.  784.26 in revised form. We 
received several comments on the proposed rule that resulted in 
revisions to proposed Sec.  784.26. One commenter urged us to be more 
consistent in our implementation of plain language principles, 
including application of those principles to provisions for which we 
proposed no substantive revisions. In response to this comment, we 
revised and restructured proposed Sec.  784.26 to improve its clarity 
and organization, to streamline its contents, and to eliminate 
redundancies and ambiguities. Among other things, we combined proposed 
paragraphs (b) and (c) into a single paragraph (c) in the final rule 
because both proposed paragraphs (b) and (c) specified content 
requirements for the plan to return coal processing waste to abandoned 
underground mine workings.
---------------------------------------------------------------------------

    \559\ 80 FR 44436, 44528 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In the preamble to proposed Sec.  784.26, we invited comment on 
whether we should adopt similar requirements that would apply to 
backstowing of coal processing waste in abandoned underground mines 
when that activity occurs in connection with either a surface coal mine 
or a coal preparation plant regulated under 30 CFR 785.21. See 80 FR 
44528 (Jul. 27, 2015). One commenter responded in the affirmative. 
Previous Sec.  816.81(f) required that disposal of coal mine waste in 
underground mine workings as part of a surface mining operation were to 
be conducted in accordance with a plan approved under previous Sec.  
784.25. Final Sec.  816.81(h), which corresponds to previous Sec.  
816.81(f), contains a similar requirement for disposal in accordance 
with final Sec.  784.26, which replaces previous Sec.  784.25. In 
addition, both previous Sec.  827.12 and the version of Sec.  827.12 
that we are adopting as part of this final rule require that coal 
preparation plants comply with Sec.  816.81. Therefore, previous Sec.  
827.12 already required that disposal of coal mine waste in underground 
mine workings in connection with a coal preparation plant be conducted 
in accordance with a plan approved under previous Sec.  784.25, while 
final Sec.  827.12 contains a similar requirement for disposal in 
accordance with final Sec.  784.26. We revised paragraph (a) of 
proposed Sec.  784.26 for consistency with these requirements. 
Specifically, final Sec.  784.26(a) clarifies that, as provided in 
final Sec. Sec.  816.81(h) and 817.81(h), the permittee may return coal 
processing waste from either surface-mined coal or underground-mined 
coal to abandoned underground mine workings for disposal only if the 
regulatory authority and the Mine Safety and Health Administration 
first approve the disposal plan. We also added a reference to Sec.  
816.41 to final Sec.  784.26(b)(15) to accompany the existing reference 
to final Sec.  817.41.
    Proposed paragraph (b)(2) required that each plan for the return of 
coal processing waste to abandoned underground mine workings include a 
description of all chemicals used to process the coal, the quantity of 
those chemicals remaining in the coal processing waste, and the likely 
impact those chemicals would have on groundwater and any persons, 
aquatic life, or wildlife using or exposed to that groundwater. One 
commenter objected to the addition of this paragraph because many 
chemicals used to process coal are nonhazardous or nontoxic. The 
commenter also questioned whether monitoring of nonhazardous chemicals 
would be required under this rule.
    Final paragraph (b)(2) retains the proposed requirement because 
information about the additives to coal processing waste is necessary 
to properly evaluate the potential of the injected material to affect 
water resources. The regulatory authority will determine whether the 
permittee must monitor groundwater for the presence of those chemicals. 
The commenter further alleged that the requirement to characterize 
these chemicals prior to their injection into underground workings 
would interfere with regulatory programs governing these discharges 
under laws other than SMCRA. We do not agree with the commenter because 
final paragraph (b)(2) simply requires disclosure of constituents and 
analyses of how those chemicals will impact the hydrologic balance. It 
does not establish discharge limits for those chemicals, although the 
final rule would prohibit approval of the permit application if the 
cumulative hydrologic impact assessment determines that disposal of 
coal processing waste in underground mine workings would result in 
material damage to the hydrologic balance outside the permit area.
    One commenter misconstrued proposed paragraph (e) as allowing the 
regulatory authority to exempt pneumatic backstowing operations from 
compliance with the requirements of proposed paragraphs (a) through 
(d). According to the commenter, the regulatory authority cannot make a 
determination that backstowing will not have an adverse impact on 
hydrology without the information required by those paragraphs. Final 
paragraph (d) eliminates this ambiguity and clarifies that the 
regulatory authority may only waive the monitoring requirements of 
final paragraph (c), not the information requirements of final 
paragraphs (a) and (b). We anticipate that the regulatory authority 
will use the information submitted under paragraphs (a) and (b) in 
determining whether the applicant has adequately demonstrated that the 
proposed pneumatic backstowing operation will not adversely impact 
surface water, groundwater, or water supplies.
Section 784.27: What additional permitting requirements apply to 
proposed activities in or through ephemeral streams?
    In the preamble to the proposed rule we discussed the unique 
characteristics of ephemeral streams and the vital importance of 
headwater streams, including ephemeral streams, in maintaining the 
ecological health and function of streams down gradient of headwater 
streams.\560\ In the preamble to Sec.  701.5 of the final rule, we 
discussed the revisions of the proposed definition of ``ephemeral 
stream.'' As revised, the final definition of ``ephemeral stream'' now 
includes those conveyances receiving runoff from snowmelt events and 
that have both a bed-and-bank configuration and an ordinary high water 
mark. The final rule also revises our definition of ``intermittent 
stream'' so that it no longer automatically includes streams draining a 
watershed of at least one-square mile. This change may result in a 
number of streams that were classified as ``intermittent'' under the 
previous regulations being categorized as ``ephemeral'' under the final 
rule. This is significant because permitting requirements for ephemeral 
streams differ from those for perennial and intermittent streams.
---------------------------------------------------------------------------

    \560\ 80 FR 44436, 44451-44453 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Because of the distinctions between ephemeral streams and other 
types of streams, we have added Sec.  784.27 to the final rule to 
specifically address the permitting requirements for

[[Page 93232]]

underground mining activities in or through ephemeral streams. Creating 
this distinct section also addresses commenters' concerns that it was 
difficult to discern when regulations applied strictly to ephemeral 
streams or applied to all streams.
    Several commenters asserted that avoiding impacts to ephemeral 
streams would create an unnecessary and heavy financial burden that 
effectively curtails longwall mining and will result in stranded coal 
reserves. Further, these commenters contend that protecting ephemeral 
streams exceeds SMCRA authority because SMCRA does not contain a 
provision requiring avoidance of impacts to these streams. We direct 
commenters to our discussion of the financial burden of the final rule 
found within the accompanying RIA and the general comments in Part IV, 
F., above. However, as discussed within this preamble we are not 
affording the same protections to ephemeral streams as we do for 
intermittent and perennial streams. As this comment centers on the 
impacts from underlying underground operations due to subsidence, 
further discussion about subsidence and material damage to the 
hydrologic balance outside the permit area can be found in the 
discussion of general comments in Part IV, K of this preamble. Also, 
for further discussion on the protections afforded ephemeral streams 
versus intermittent and perennial streams, please refer Part IV, O of 
this preamble.
Final Paragraph (a): Clean Water Act Requirements
    Similar to final rule Sec.  780.27(a), if the proposed permit area 
includes waters subject to the jurisdiction of the Clean Water Act, 
including some ephemeral streams, the regulatory authority must 
condition the permit to prohibit initiation of mining-related 
activities in or affecting waters subject to the jurisdiction of the 
Clean Water Act before you obtain all necessary authorizations, 
certifications, and permits under the Clean Water Act.\561\
---------------------------------------------------------------------------

    \561\ 33 U.S.C. 1251 et seq.
---------------------------------------------------------------------------

Final Paragraph (b): Postmining Surface Drainage Pattern and Stream-
Channel Configuration
    Unlike the requirements for intermittent and perennial streams 
addressed in Sec.  784.28, final rule paragraph (b) of this section 
only requires the restoration of a postmining surface drainage pattern 
that is similar to the premining drainage pattern, relatively stable, 
and in dynamic near-equilibrium and postmining stream-channel 
configurations that are similar to the premining ephemeral streams and 
relatively stable--i.e., the form. It does not require the 
reestablishment of hydrologic or ecological function as required for 
perennial and intermittent streams. Paragraph (b)(2) also allows the 
regulatory authority to approve or require a drainage pattern or 
stream-channel configuration that differs from the premining pattern if 
appropriate to ensure stability, prevent or minimize downcutting of 
reconstructed stream channels, promote enhancement of fish and wildlife 
habitat, accommodate any anticipated temporary or permanent increase in 
surface runoff as a result of mining and reclamation, accommodate the 
construction of excess spoil fills, coal mine waste piles, or 
impounding structures, replace previously channelized or severely 
altered streams with a more natural and ecologically sound drainage 
pattern or configuration or reclaim a previously mined area. The 
drainage pattern and stream-channel configuration requirements need 
only be similar to the premining patterns and configurations. Some 
differences are allowable. You are not required to reconstruct all of 
the ephemeral streams that existed prior to mining to the same 
premining configuration.
    These requirements ensure establishment of a postmining drainage 
pattern that is functionally equivalent to the premining pattern, while 
affording the regulatory authority the discretion to alter the drainage 
pattern in certain situations that would be better for the hydrologic 
balance. Under paragraph (b)(2), the regulatory authority may allow a 
variance from the requirements in paragraph (b)(1) for certain express 
purposes: To ensure stability; prevent or minimize downcutting or 
widening of reconstructed stream channels and control meander 
migration; promote enhancement of fish and wildlife habitat; 
accommodate any anticipated temporary or permanent increase in surface 
runoff as a result of mining and reclamation; accommodate the 
construction of excess spoil fills, coal mine waste refuse piles, or 
coal mine waste impounding structures; replace a stream that was 
channelized or otherwise severely altered prior to submittal of the 
permit application with a more natural, relatively stable, and 
ecologically sound drainage pattern or stream-channel configuration; or 
reclaim a previously mined area.
Final Paragraph (c): Streamside Vegetative Corridors
    As discussed previously in this preamble, throughout the final rule 
we have replaced the term ``riparian corridor'' as used in the proposed 
rule with ``streamside vegetative corridor''; this change is also 
incorporated into this section. The final rule is based on the current 
understanding of the contributions made by streamside vegetative 
corridors along ephemeral streams. As discussed above, although a 
permittee is not required to reconstruct all of the ephemeral streams 
mined in or through, those ephemeral streams that are reconstructed 
must include streamside vegetative corridors constructed in accordance 
with Sec.  817.56 of the final rule.
Section 784.28: What additional permitting requirements apply to 
proposed surface activities in, through, or adjacent to perennial or 
intermittent streams?
    Some commenters recommended that Sec.  784.28(b) and (c) and Sec.  
817.57 be revised to require that streams be protected from dewatering 
by longwall and other high-extraction underground mining methods, and 
that, if dewatering does occur, corrective action should be taken to 
restore streamflow and protect the biological integrity of the 
dewatered stream. We agree with the commenters that streams should not 
be permanently dewatered by subsidence caused by underground mining 
operations; however, we decline to make changes to Sec.  784.28(b) and 
(c) and Sec.  817.57 as a result. Those sections do not regulate 
subsidence from underground mining activities; instead, those sections 
address direct surface impacts to streams from underground mining 
activities, such as placement of coal refuse within the 100 foot stream 
buffer zone. These surface facilities of an underground mine will 
impact streams and lands on the surface in much the same manner as a 
surface coal mining operation in that areas are disturbed directly by 
activities such as topsoil removal, grading of the existing surface to 
facilitate construction of buildings and other support facilities, 
construction of ventilation shafts and other entries, coal processing 
facilities, roads and disposal of coal refuse. Otherwise known as the 
disturbed area, the surface facilities of an underground mine are 
subject to the provisions of section 515(b)(10) of SMCRA,\562\ which 
requires disturbances to the hydrologic balance to be minimized. 
Because surface facilities of underground mines are permitted as part 
of the permit area, which is defined at existing Sec.  701.5 as ``the 
area of land, indicated on the approved map . . . required to be 
covered by the operator's performance

[[Page 93233]]

bond under subchapter J of this chapter and which shall include the 
area of land upon which the operator proposes to conduct surface coal 
mining and reclamation operations under the permit, including all 
disturbed areas;'' mining activities within this disturbed area are not 
subject to the provisions of section 510(b)(3) \563\ where material 
damage to the hydrologic balance outside the permit area must be 
prevented. (See our general comment discussions about this topic at 
Part IV).
---------------------------------------------------------------------------

    \562\ 30 U.S.C. 1265 (b)(10).
    \563\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    While it is true that the changes that commenters suggest to these 
regulations, which relate to surface facilities of underground mines, 
would be inappropriate, it is also true that SMCRA directs us to take 
into consideration the distinct differences between surface and 
underground mining operations.\564\ One of these distinctions is the 
impacts from subsidence. Whereas the impacts from surface facilities of 
underground mines within the permit area are similar to the impacts of 
surface mines, subsidence impacts within the adjacent area of 
underground mines are distinctly different. These impacts to areas 
overlying the underground workings of an underground mine (the adjacent 
area) that are not otherwise disturbed to facilitate mining range from 
virtually indiscernible to a host of adverse impacts and damages to 
land and water resources, water supplies, and structures. These impacts 
can vary due to the local geology and mining method (room and pillar 
versus longwall). Subsidence impacts do not typically require 
conventional reclamation, such as large scale backfilling, grading, 
replacement of soil, and revegetation because the topsoil and 
overburden is not removed to access the coal. Yet, subsidence damages 
must be repaired in accordance with the subsidence provisions of SMCRA 
and the existing subsidence control regulations, which are found at 
Sec. Sec.  784.20 (probable hydrologic consequences), 784.22 
(hydrologic reclamation plan), and 817.121 (performance standards for 
the repair of lands and waters damaged by subsidence). In order to 
clarify that these provisions apply to streams, wetlands, and other 
bodies of water on the surface that may be impacted by subsidence, we 
have made changes to these regulations. These specific changes are 
discussed in greater detail at the preamble to those provisions.
---------------------------------------------------------------------------

    \564\ 30 U.S.C. 1266(a).
---------------------------------------------------------------------------

Section 784.29: What information must I include in the surface-water 
runoff control plan?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  780.29, which is the surface mining 
counterpart to section 784.29.
Section 784.30: When must I prepare a subsidence control plan and what 
information must that plan include?
    Consistent with our revisions to the definition of material damage 
(in the context of the subsidence control provisions of Sec. Sec.  
784.30 and 817.121), our final rule has been revised at Sec.  784.30(a) 
to require that the pre-subsidence survey include mapping of wetlands, 
streams, or water bodies and a narrative description indicating whether 
subsidence could cause material damage to or diminish the value or 
reasonably foreseeable use of such features. In addition, as explained 
in the discussion of general comments in Part IV.K. of this preamble, 
we have revised the requirements for subsidence control plans at Sec.  
784.30(c) to include wetlands, streams, or water bodies when describing 
the anticipated effects of planned subsidence and measures to be taken 
to mitigate or remedy any subsidence-related material damage to such 
features, whenever the pre-subsidence survey indicates the presence of 
wetlands, streams and water bodies that could be materially damaged by 
subsidence. These provisions are intended to ensure that subsidence 
related material damages to streams, and other water resources 
regulated in accordance with section 516 of SMCRA,\565\ are effectively 
addressed in the applicants subsidence control plan.
---------------------------------------------------------------------------

    \565\ 30 U.S.C. 1266.
---------------------------------------------------------------------------

Final Paragraph (a): Pre-Subsidence Survey
    When previous 30 CFR 784.20(a)(3) was issued in 1995, it required a 
pre-subsidence survey of the condition of all noncommercial buildings 
or occupied residential dwellings and related structures that might be 
materially damaged by subsidence or have their reasonably foreseeable 
value diminished by subsidence, within the area encompassed by the 
angle of draw. 60 FR 16729-16730, 16748 (Mar. 31, 1995). This 
provision, however, was vacated by a court and has been suspended since 
December 22, 1999 (64 FR 71652-71653). See also 80 FR 44528 (citing 
Nat'l Mining Ass'n v. Babbitt, 173 F.3d 906 (D.C. Cir. 1999)). In an 
effort to remove regulations that had been suspended for over 15 years, 
we proposed to remove the previously suspended language.
    We received comments concerning this proposed nonsubstantive change 
to previous 30 CFR 784.20(a)(3), which has been redesignated as 30 CFR 
784.30(a)(3). These commenters requested that, instead of removing the 
suspended language, we should revise it consistent with the Court's 
decision. Although we agree with the commenters that we could correct 
the deficiency the court identified and require a pre-subsidence survey 
documenting the condition of all noncommercial buildings or occupied 
residential dwellings and related structures that might be materially 
damaged by subsidence or have their reasonably foreseeable value 
diminished, we decline to do so at this time because it is not related 
to the primary purpose of this rule (i.e., protection of streams and 
related environmental values). Substantive changes of the type 
recommended by the commenters are better addressed in a potential 
future rulemaking.
Section 784.31: What information must I provide concerning the 
protection of publicly owned parks and historic places?
    We are finalizing Sec.  784.31 as proposed. We received no comments 
on this section.
Section 784.33: What information must I provide concerning the 
relocation or use of public roads?
    We are finalizing Sec.  784.33 as proposed. We received no comments 
on this section.
Section 784.35: What information must I provide concerning the 
minimization and disposal of excess spoil?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  780.35, which is the surface mining 
counterpart to Sec.  784.35.
Section 784.37: What information must I provide concerning access and 
haul roads?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  780.37, which is the surface mining 
counterpart to Sec.  784.37.
Section 784.38: What information must I provide concerning support 
facilities?
    We are finalizing Sec.  784.38 as proposed. We received no comments 
on this section.

[[Page 93234]]

Section 784.40: May I submit permit application information in 
increments as mining progresses?
    Please refer to the preamble for Sec.  783.26 for a discussion of 
this part of the final rule and the comments that led to its adoption.
Previous Sec.  784.200: Interpretative Rules Related to General 
Performance Standards
    We have removed and reserved Sec.  784.200 for the reasons 
discussed in the preamble to the proposed rule.\566\
---------------------------------------------------------------------------

    \566\ 80 FR 44436, 44528 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

Section 785.10: Information Collection
    Section 785.10 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 785.
Section 785.14: What special provisions apply to mountaintop removal 
mining operations?
    This section implements section 515(c) of SMCRA,\567\ which 
contains special performance standards related to mountaintop removal 
operations. Section 701.5 of this rule generally defines mountaintop 
removal operations as ``surface mining activities in which the mining 
operation extracts an entire coal seam or seams running through the 
upper fraction of a mountain, ridge, or hill . . . by removing 
substantially all overburden above the coal seam and using that 
overburden to create a level plateau or a gently rolling contour, with 
no highwalls remaining, that is capable of supporting one or more of 
the postmining land uses . . . .''
---------------------------------------------------------------------------

    \567\ 30 U.S.C. 1265(c).
---------------------------------------------------------------------------

    The majority of commenters expressed concern about how we proposed 
to give effect to section 515(c)(4)(D) of SMCRA.\568\ Specifically, 
many commenters requested that we specifically require mountaintop 
removal operations to ensure that ``no damage will be done to natural 
watercourses'' as required by that section. These commenters alleged 
that our proposed rule did not go far enough and requested that the 
final rule contain an absolute prohibition on mining activities, 
including forbidding excess spoil fills and mining through streams, 
because these could result in damage to a natural watercourse.
---------------------------------------------------------------------------

    \568\ 30 U.S.C. 1265(c)(4)(D).
---------------------------------------------------------------------------

    We decline to adopt this suggestion. If we were to interpret 
section 515(c)(4)(D) of SMCRA in the manner suggested by the 
commenters, it would effectively ban mountaintop removal mining 
operations because streams could neither be filled with excess spoil 
nor mined through to recover the underlying coal. This is so, because, 
by definition, mountaintop removal mining operations remove all of the 
overburden overlying the coal beneath a mountain or ridgetop with the 
resultant creation of a level plateau or gently rolling contour in 
accordance with section 515(c)(2) of the Act,\569\ necessarily damaging 
some streams or parts of streams in the process. Such a ban, however, 
would effectively nullify section 515(c)(2) of the Act,\570\ which 
explicitly allows such operations. A ban would also be inconsistent 
with SMCRA and effectively nullify section 515(c)(4)(E),\571\ which 
specifically provides that excess spoil not retained on the mountaintop 
must be placed in accordance with section 515(b)(22).\572\ Section 
515(b)(22)(E), in turn, allows the placement of this spoil in 
``springs, natural water courses or wet weather seeps'' as 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.''
---------------------------------------------------------------------------

    \569\ Id.
    \570\ 30 U.S.C. 1265(c)(2).
    \571\ 30 U.S.C. 1265(c)(4)(E).
    \572\ 30 U.S.C. 1265(b)(22).
---------------------------------------------------------------------------

    At paragraph (b)(9), we proposed to reconcile these potentially 
conflicting statutory sections by requiring the applicant to 
demonstrate that the proposed mountaintop removal mining operation has 
been designed to meet three criteria to ensure that natural 
watercourses mined by a mountaintop removal mining operation are 
affected no more than natural watercourses mined by other surface 
mining methods and restored to approximate original contour under our 
other regulations. We are adopting this approach as proposed, with a 
few changes discussed below, because, by explaining what damage to 
natural watercourses means in the context of mountaintop removal mining 
operations, it reconciles the potentially conflicting requirements of 
SMCRA and gives effect to sections 515(c)(2), 515(c)(4)(D), and 
515(c)(4)(E) of SMCRA.
    Although we are generally adopting this section as proposed, in the 
preamble to the proposed rule, we invited comment on whether we should 
adopt a different approach to reconciling these provisions; i.e., a 
rule that would allow the approval of mountaintop removal mining 
operations that would damage natural watercourses within the permit 
area if the applicant can demonstrate that the damage will be fully 
offset by implementation of the fish and wildlife enhancement measures 
proposed under section 780.16.\573\ We received two comments on this 
topic, one supporting the alternative and one opposing it.
---------------------------------------------------------------------------

    \573\ 80 FR 44436, 44530 (Jul. 27, 2015).
---------------------------------------------------------------------------

    The commenter opposing the alternate approach opined that there is 
no good evidence that fish and wildlife enhancement measures can offset 
the damage caused by mining through streams. The commenter further 
alleged that ``numerous studies have demonstrated a lack of success in 
fully restoring the biological condition of streams once they have been 
damaged by coal mining or other activities, even when their physical 
conditions have been restored.'' The commenter cited several references 
allegedly supporting this assertion. The commenter in support of the 
alternate approach recommended that we adopt it within the final rule 
because it provides flexibility and allows a permittee may either to 
cause no net damage or allows for offsets.
    As discussed above, we decline to adopt this approach in the final 
rule. In section 780.16 of the final rule, however, we allow fish and 
wildlife enhancement measures to offset other permanent impacts to 
wetlands and to intermittent and perennial streams, such as those 
resulting from the placement of excess spoil, provided that the scope 
of the enhancement measures is commensurate with the magnitude of the 
long-term adverse impacts of the proposed operation. The proposed 
permanent adverse impacts to wetlands and streams cannot be approved if 
the regulatory authority determines that the proposed enhancement 
measures will not meet this standard because of a lack of demonstrated 
ability to actually achieve the necessary commensurate enhancement. 
Because the final rule requires the use of fish and wildlife 
enhancements to offset specific damage to streams, we decided that we 
do not need to adopt another similar provision with regard to 
mountaintop removal mining operations.
Final Paragraph (b): Application and Approval Requirements
    As proposed, final paragraph (b)(9) requires that, for mountaintop 
removal mining operations that seek a variance from approximate 
original contour restoration requirements, the applicant demonstrate 
that the proposed operation will not damage natural watercourses

[[Page 93235]]

within the permit or adjacent areas. Further, the paragraph specifies 
at least four criteria--final paragraphs (b)(9)(i) through (iv)--that 
must be met for a regulatory authority to determine that no damage will 
occur to natural watercourses. Together, these four criteria ensure 
that a mountaintop removal mining operation will not damage 
watercourses any more than a surface mining operation without an 
approximate original contour variance. In essence, they define 
``damage'' in the context of section 515(c)(4)(D) of SMCRA.
    While it is true that some commenters indicated that the approach 
taken in paragraph (b)(9) is not restrictive enough, it is also true 
that our proposed and final regulations address this issue and correct 
several deficiencies in our previous regulations, which did not require 
prevention of damage to natural watercourses above the lowest coal seam 
mined. First, we removed the limitation to watercourses below the 
lowest coal seam mined because the underlying statutory provision at 
section 515(c)(4)(D) of SMCRA does not contain such a limitation. The 
applicant now must demonstrate that the proposed operation will not 
damage natural watercourses within the proposed permit and adjacent 
areas, regardless of where the watercourse is located. Second, even for 
watercourses below the lowest coal seam mined, the previous regulations 
did not contain any criteria for determining whether an operation is 
likely to cause damage. To correct this deficiency, the proposed and 
final rules contain criteria that provide protection from the most 
likely adverse impacts that could occur within the watershed of the 
natural watercourses on the permit and adjacent areas.
    While we discussed overall adverse impacts to aquatic and 
terrestrial ecology from surface mining operations in the preamble to 
the proposed rule,\574\ mountaintop removal mining operations might 
create additional adverse impacts to streams because they often 
completely remove headwater streams within the mined-out area, 
extensively restructure the surface configuration and drainage 
patterns, bury additional stream segments below the mined-out area with 
significant quantities of excess spoil that is not being used to 
restore the approximate original contour, and remove expansive areas of 
native, typically forested, vegetation and replace it with an intensely 
modified, often pasture-like landscape. These drastic disturbances from 
mountaintop removal mining operations can result in the discharge of 
increased levels of pollutants to surface water or groundwater; changes 
in peak flows from the permit area that would cause an increase in 
flooding; and increased flow volumes that could adversely affect actual 
uses of surface water, designated uses of surface water under section 
303(c) of the Clean Water Act,\575\ or premining uses of groundwater 
outside the permit area. The criteria in final paragraph (b)(9) are 
designed to prevent adverse impacts to surface water and groundwater 
resources within the permit and adjacent areas of a mountaintop removal 
mining operation that would be greater than if the area was restored to 
approximate original contour.
---------------------------------------------------------------------------

    \574\ 80 FR 44436, 44439-44447 (Jul. 27, 2015).
    \575\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    To be consistent with SMCRA and other sections of the final rule, 
we added two criteria to the three included in the proposed rule. The 
first criterion we added is final paragraph (b)(9)(ii), and was also 
recommended by a commenter. That paragraph specifies that the 
regulatory authority must also consider the overall additional adverse 
impacts to the aquatic and terrestrial ecology that could result from 
granting a variance to approximate original contour restoration 
requirements. We also added final paragraph (b)(9)(v), which allows the 
regulatory authority to require additional demonstrations as necessary 
to determine that no damage to natural watercourses will occur. We 
agree with the commenter that suggested these additional requirements 
because they should provide adequate minimum standards that will allow 
the regulatory authority to determine whether damage to natural 
watercourses will in fact be prevented.
    In addition to these new criteria, we have revised proposed 
paragraph (b)(9)(iii) so that final paragraph (b)(9)(iii) refers to 
changes in the size or frequency of peak flows that would cause an 
increase in ``flooding'' rather than an increase in ``damage from 
flooding'' as in the proposed rule. We made this change because 
determination of whether there would be an increase in flooding is 
easier and less speculative than a determination of whether there would 
be an increase in damage from flooding. Under the latter standard, the 
applicant would have to project future development downstream of the 
proposed permit area, which could be difficult and conjectural.
    We divided proposed paragraph (b)(9)(iii), now final paragraph 
(b)(9)(iv), into an introductory paragraph and two separate 
subparagraphs. Paragraph (b)(9)(iv)(A) addresses surface flow and 
paragraph (b)(9)(iv)(B) addresses groundwater. Final paragraph 
(b)(9)(iv)(A) also differs from its counterpart in the proposed rule in 
that we removed references to ``reasonably foreseeable uses'' of 
surface water and groundwater. The final rule no longer includes the 
term ``reasonably foreseeable uses'' in contexts other than protection 
of reasonably foreseeable surface land uses from the adverse impacts of 
subsidence. Our reasons for deletion of this term are twofold. First, 
the term appears in SMCRA only in section 516(b)(1), which requires 
that operators of underground mines adopt subsidence control measures 
to, among other things, maintain the value and reasonably foreseeable 
use of surface lands. Section 717(b) of SMCRA establishes water supply 
replacement requirements for surface mines, including mountaintop 
removal mining operations. The regulations implementing section 717(b) 
of SMCRA \576\ are found at 30 CFR 816.40. Second, we generally agree 
with the numerous commenters who opposed inclusion of the term 
``reasonably foreseeable uses'' on the basis that it is too subjective, 
difficult to determine, and open to widely varying interpretations, 
which could result in inconsistent application throughout the 
coalfields.
---------------------------------------------------------------------------

    \576\ 30 U.S.C. 717(b).
---------------------------------------------------------------------------

    We also revised proposed paragraph (b)(9)(iv)(A) to track more 
closely the language in our final definition of ``material damage to 
the hydrologic balance outside the permit area'' at section 701.5 about 
designated uses of surface water under the Clean Water Act. Finally, in 
response to comments from the U.S. Environmental Protection Agency, we 
replaced the term ``existing'' when referring to uses of surface water 
with ``any premining use of surface water outside the permit area.'' 
This change is intended to avoid any confusion or conflict between the 
terms we use in our regulations and the term ``existing uses'' under 
the regulations implementing the Clean Water Act.
    Commenters also expressed concern that our proposal to remove the 
``no damage to natural watercourses'' provision from the performance 
standards in section 824.11 and make it a permitting requirement does 
not comport with section 515 of SMCRA. We agree that this requirement 
should also be a performance standard, so the final rule restores that 
requirement to Sec.  824.11, with revisions to refer to the new 
permitting provisions in Sec.  785.14(b)(9).

[[Page 93236]]

    We received comments on proposed paragraph (b)(11), which would 
have required posting of a bond amount sufficient to restore the site 
of a mountaintop removal mining operation to approximate original 
contour if the approved postmining land use has not been implemented 
before expiration of the revegetation responsibility period under Sec.  
816.115. Commenters thought this requirement to be illogical because 
mountaintop removal mining operations are designed and approved to 
facilitate higher and better postmining land uses, which the Act limits 
to industrial, commercial, residential, public facility (including 
recreational facilities) and agricultural postmining land uses). 
Commenters were concerned that, with the exception of agricultural and 
some recreational postmining land uses, revegetation responsibility 
periods are inconsistent with implementation and attainment of the 
higher and better land uses proscribed by the other potential uses.
    In response, we note that the intent of this provision is to ensure 
that mountaintop removal mining operations are approved only for 
legitimate immediate postmining land use needs. We find the 5-year 
revegetation responsibility period provides sufficient time for 
initiation of implementation of the approved postmining land use.
    The preamble to proposed paragraph (b)(11) stated that we were 
considering an alternative to requiring that the amount of bond 
initially posted include an amount equal to the cost of restoring the 
area to the approximate original contour in the event the proposed land 
use is not implemented. That alternative would prohibit release of any 
bond amount for the entire permit until the approved postmining land 
use has been implemented. Upon further consideration, we decided to 
adopt this alternative as final paragraph (c)(2). We recognize that 
requiring that the amount of bond equal to the cost of restoring the 
area to the approximate original contour may be unduly burdensome and 
inconsistent with the principle under section 509 of SMCRA that the 
bond amount should be based upon the cost of completing the approved 
reclamation plan in the event of default. Therefore, final rule 
paragraph (c)(2) instead requires that the permit include a condition 
prohibiting the release of any part of the bond posted for the permit 
until substantial implementation of the approved postmining land use is 
underway. The rule specifies that the condition must provide that the 
prohibition does not apply to any portion of the bond that is in excess 
of an amount equal to the cost of regrading the site to its approximate 
original contour and revegetating the regraded land in the event that 
the approved postmining land use is not implemented.
Final Paragraph (c): Additional Requirements for Permit Issuance
    One commenter expressed concern that the proposed paragraph (c) 
would draw attention to mountaintop removal mining operations and would 
subject them to increased scrutiny because they would be more readily 
identifiable by outside interest groups. The existing regulations 
already require that mountaintop removal mining operations be clearly 
identified as such. The regulations finalized today merely add a 
requirement that, as proposed, the permit identify the acreage and 
location of the lands within the permit area upon which mountaintop 
removal mining operations will occur. We are adding this requirement 
because some permits combine mountaintop removal mining operations with 
other types of mining, such as area or contour mining. Because we are 
only adding additional detail to the existing identification already 
required, we do not agree that this additional information will subject 
the permit to additional scrutiny by outside interests. Furthermore, 
this type of information is in the public interest and only makes clear 
the location and the extent of the lands to which the approximate 
original contour variance applies within the permit.
Section 785.16: What special provisions apply to proposed variances 
from approximate original contour restoration requirements for steep-
slope mining?
    As discussed in the preamble to the proposed rule, we proposed to 
modify section 785.16.\577\ After evaluating the comments that we 
received, we are adopting the section as proposed, with the following 
explanations and exceptions.
---------------------------------------------------------------------------

    \577\ 80 FR 44436, 44530-32 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): Application and Approval Requirements
    We divided proposed paragraph (a)(9)(iii) into two separate 
paragraphs. Paragraph (A) addresses surface flow and paragraph (B) 
addresses ground water. Final paragraph (a)(9)(iii)(A) differs from the 
language of the proposed rule in that we have removed references to 
reasonably foreseeable uses of surface water and groundwater. The final 
rule no longer includes the term ``reasonably foreseeable uses'' in 
contexts other than protection of reasonably foreseeable surface land 
uses from the adverse impacts of subsidence. Our reasons for deletion 
of this term are twofold. First, the term appears in SMCRA only in 
section 516(b)(1), which requires that operators of underground mines 
adopt subsidence control measures to, among other things, maintain the 
value and reasonably foreseeable use of surface lands. Second, numerous 
commenters opposed inclusion of the term ``reasonably foreseeable 
uses'' on the basis that it is too subjective, difficult to determine, 
and open to widely varying interpretations, which could result in 
inconsistent application throughout the coalfields.
    We have also revised paragraph (a)(9)(iii)(A) to track more closely 
the language in our definition of ``material damage to the hydrologic 
balance outside the permit area'' at Sec.  701.5 concerning designated 
uses of surface water under the Clean Water Act. Finally, in response 
to comments from the U.S. Environmental Protection Agency, we have 
replaced the term ``existing'' when referring to uses of surface water 
with ``any actual use of surface water outside the permit area before 
mining.'' This change is intended to avoid any confusion or conflict 
between the terms we use in our regulations and the term ``existing 
uses'' under the regulations implementing the Clean Water Act.
    As a result of a comment on a similar proposed rule provision at 
Sec.  780.24(a)(6)(ii), we have deleted language in proposed paragraph 
(a)(10)(iii) of this section, which would have prohibited the surface 
owner from receiving any compensation for requesting a variance from 
approximate original contour. As discussed above, that comment stated 
that the proposed rule would not be effective in addressing the core 
issue, which is the failure of regulatory authorities to make an 
independent and fact-based determination that the proposed change in 
land use meets statutory requirements. This concern is germane here as 
well. We revised the final rule to require a copy of the landowner 
request.
    In connection with paragraph (a)(13) of the proposed rule, we 
invited comment on whether we should prohibit release of any bond 
amount for the entire permit area until the postmining land use for 
which the approximate original contour variance was granted has been 
implemented.\578\ In response to this invitation for comment, one 
commenter opined that bond should be retained and released as

[[Page 93237]]

it is currently done and that phased release of bonds should be allowed 
when those aspects of performance responsibility are satisfied. Another 
commenter suggested that bond release on approximate original contour 
variances should be based on the restoration of capability for the 
postmining land use and not implementation of that use because the 
permittee frequently has no control over implementation. Another 
commenter indicated that the approach suggested in the proposed rule is 
illogical because most of the postmining land uses involved in the 
approximate original contour variance would be higher or better uses. 
Another commenter recommended that, for both mountaintop removal mining 
operations and steep slope variances, no bond be released until the 
postmining land use has been successfully achieved on the area subject 
to the approximate original contour variance or exception.
---------------------------------------------------------------------------

    \578\ 80 FR 44436, 44531 (Jul. 27, 2015).
---------------------------------------------------------------------------

    We received a comment about paragraph (a)(13) of Sec.  785.16 
similar to a comment we received in response to proposed Sec.  
785.14(b)(11) about the requirement to post a bond sufficient to 
restore approximate original contour in areas that have been previously 
granted variances if the approved postmining land use has not been 
implemented before expiration of the revegetation responsibility period 
under Sec.  816.115. Commenters thought this requirement to be 
illogical because these variances are granted in order to facilitate 
higher and better postmining land uses. Commenters were concerned that, 
with the exception of agricultural and some recreational postmining 
land uses, revegetation responsibility periods are inconsistent with 
implementation and attainment of the higher and better land uses 
proscribed by the other potential uses.
    In response, we note that the intent of proposed paragraph (a)(13), 
which we are adopting in revised form as final paragraph (b)(2), was to 
ensure that the permittee made firm arrangements for implementation of 
the approved postmining land use and did not seek a variance just to 
avoid the higher cost of restoring the approximate original contour or 
to satisfy landowner desires. As discussed in the environmental impact 
statement for this rule, the proposed land uses used to justify 
approximate original contour variances have in some cases never 
materialized. Under our existing rules, land within the approximate 
original contour variance area must be revegetated and is subject to a 
period of responsibility, which usually varies from 5 to 10 years 
depending upon average annual precipitation. It is during this time, 
after the area has been backfilled and graded, and after vegetation has 
been established, that we expect the land use to actually be 
implemented. Five to ten years is a more than adequate time to actually 
implement the land use, and indeed that use may often be implemented in 
a shorter time.
    We recognize that requiring that the amount of bond initially 
posted include an amount equal to the cost of restoring the variance 
area to the approximate original contour in the event the proposed land 
use is not implemented within the revegetation responsibility period, 
as we proposed, may be unduly burdensome and inconsistent with the 
principle under section 509 of SMCRA that the bond amount should be 
based upon the cost of completing the approved reclamation plan in the 
event of default. Therefore, the final rule instead requires that the 
permit include a condition prohibiting the release of any part of the 
bond posted for the permit until substantial implementation of the 
approved postmining land use is underway. The rule specifies that the 
condition must provide that the prohibition does not apply to any 
portion of the bond that is in excess of an amount equal to the cost of 
regrading the site to its approximate original contour and revegetating 
the regraded land in the event that the approved postmining land use is 
not implemented.
    Regarding phased bond release, the bond for any area subject to an 
approximate original contour variance, and therefore not restored to 
approximate original contour, cannot be released using the same process 
as for conventional reclamation, because this process would not result 
in retention of bond that can be used to return the land to its 
approximate original contour in the event the approved postmining land 
use is never implemented. With regard to employing land use capability 
as the standard for final release rather than actual implementation of 
the approved use, that standard does not protect against the needless 
drastic alteration of the landscape and associated environmental 
impacts. As discussed in the preamble to section 785.14, these 
provisions are intended to prevent abuses that have resulted in radical 
departures from conventional reclamation and to ensure that lands not 
actually used in accordance with the approved variance are restored to 
approximate original contour.
Final Paragraph (b): Additional Requirements for Permit Issuance
    For clarity, we decided to split proposed paragraph (b) into three 
separate paragraphs (b) through (d). We are adopting paragraph (b)(1) 
as proposed. We are adopting proposed paragraph (a)(13) in revised form 
as paragraph (b)(2), as discussed above, because the provisions of 
proposed paragraph (a)(13) concern bond release, not the permit 
application, and thus are a better fit in paragraph (b). We are 
adopting proposed paragraphs (b)(2) and (3) as final paragraphs (c)(1) 
and (2) without change. We are adopting proposed paragraph (b)(4) as 
final paragraph (d) without change. Finally, we are not adopting 
proposed paragraph (b)(5) because that paragraph is subsumed within 
Sec.  773.15(h), which requires a finding by the regulatory authority 
that the permit applicant has satisfied the requirements of Part 785.
Section 785.25: What special provisions apply to proposed operations on 
lands eligible for remining?
    We received two comments on our proposed revisions \579\ to Sec.  
785.25. One commenter supported proposed Sec.  785.25 by emphasizing 
the value of remining in improving the health of streams and the 
aquatic community. The other commenter questioned the value of remining 
sites that currently support productive forestland as a result of 
natural revegetation over time. According to the commenter, remining 
those sites could be more environmentally disruptive than 
environmentally beneficial.
---------------------------------------------------------------------------

    \579\ 80 FR 44436, 44529-30 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Section 701(34) of SMCRA \580\ and 30 CFR 701.5 define ``lands 
eligible for remining'' as those lands that would otherwise be eligible 
for abandoned mine land reclamation program expenditures under section 
404 or section 402(g)(4) of SMCRA.\581\'' In relevant part, those 
sections of SMCRA generally require that the land be affected by coal 
mining, that the land be left in an inadequate reclamation status 
before August 3, 1977, and that there be no continuing reclamation 
responsibility under state or federal laws. As a matter of law, permit 
applicants may avail themselves of the benefits available to operations 
on lands eligible for remining if the proposed permit area meets these 
criteria. Benefits are limited to a reduced revegetation responsibility 
period, reduced monitoring requirements, and qualification for the 
permit eligibility

[[Page 93238]]

provisions of section 773.13 if unanticipated events or conditions 
occur.
---------------------------------------------------------------------------

    \580\ 30 U.S.C. 1291(34).
    \581\ 30 U.S.C. 1234 and 1232(g)(4).
---------------------------------------------------------------------------

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

Section 800.1: Scope and Purpose
    We are finalizing section 800.1 as proposed. We received no 
comments on this section.
Section 800.4: Regulatory Authority Responsibilities
    Section 800.4 describes a regulatory authority's responsibilities 
with respect to bonding and liability insurance requirements for 
surface coal mining operations. As proposed, we added a reference to 
financial assurances to paragraphs (a) and (b) of Sec.  800.4, 
consistent with our revision of part 800 to include criteria for 
financial assurances for long-term treatment of discharges and to 
clarify which provisions of part 800 apply to financial assurances. 
Final paragraphs (a) and (b) require that the regulatory authority 
prescribe and furnish forms for performance bonds and financial 
assurances and prescribe terms and conditions for performance bonds, 
financial assurances, and liability insurance policies.
    Similarly, as proposed, we added a sentence to paragraph (c) to 
specify that the regulatory authority must determine the amount of 
financial assurance required under Sec.  800.18 and adjust that amount 
as needed. In response to a comment, final paragraph (c) includes a 
requirement that the regulatory authority also monitor trust 
performance under a financial assurance.
    Final paragraph (d) provides that the regulatory authority may 
accept a self-bond if the requirements of Sec.  800.23 and any 
additional requirements in the regulatory program are met. Final 
paragraph (d) differs from the proposed rule in that it does not 
specify that the permittee itself must meet self-bonding requirements. 
We made this change because Sec.  800.23 allows for third-party 
guarantors. For clarity, we also added a sentence reminding readers 
that state regulatory programs need not include provisions authorizing 
the use of self-bonds.
    We adopted final paragraphs (e) and (f), which pertain to 
regulatory authority responsibilities for bond release and bond 
forfeiture, as proposed. We received no comments on those paragraphs.
    As proposed, final paragraph (g) provides that the regulatory 
authority must require in the permit that adequate bond and financial 
assurance coverage be in effect at all times. It also specifies that, 
except as provided in Sec.  800.30(b), operating without adequate bond 
or financial assurance is a violation of both the regulations and the 
terms and conditions of the permit. We revised the latter provision 
from the proposed rule, which erroneously referred to a violation of a 
condition of the rules. Conditions are established in the permit, not 
the rules.
Section 800.5: Definitions
    Section 800.5 contains definitions of certain terms that appear in 
Part 800. We are adopting Sec.  800.5 as proposed, with the exception 
of minor editorial revisions to the definitions of ``collateral bond'' 
and ``surety bond'' and one substantive revision to the definition of 
``financial assurance.'' Some commenters found the proposed rule 
confusing because various provisions of proposed part 800 and the 
preambles to those provisions were inconsistent as to whether a 
financial assurance was a type of alternative bonding system or a 
funding mechanism distinct from the alternative bonding systems 
discussed in Sec.  800.9. One commenter urged us to revise the 
definition to clearly specify that financial assurances are a type of 
alternative bonding system. We agree. Therefore, the final definition 
of ``financial assurance'' describes a financial assurance as a type of 
alternative bonding system. This change from the proposed rule is 
consistent with the preamble to our approval of the financial assurance 
provisions in the Tennessee federal program. See 72 FR 9616, 9618-9619 
(Mar. 2, 2007). It also is consistent with the preamble to a decision 
notice for a Pennsylvania regulatory program amendment that included 
the use of treatment trusts, which correspond to financial assurances. 
We approved the use of those trusts as a type of alternative bonding 
system and responded favorably to a comment that treatment trusts could 
be approved only as an alternative bonding system. See 75 FR 48526, 
48533-48535, 48536, 48537-48541 (Aug. 10, 2010).
    One commenter recommended that financial assurances not be subject 
to the alternative bonding system requirements of Sec.  800.9 and that 
we instead classify them as a hybrid of an alternative bonding system 
and a collateral bond. We do not agree. Under SMCRA, each performance 
bond instrument must be either a surety bond or collateral bond under 
section 509(b) \582\ or an alternative bonding system or self-bond 
under section 509(c).\583\ The alternative bonding system requirements 
are much more flexible and better-suited to financial assurance 
instruments than are the collateral bond requirements, as discussed in 
the preamble to our approval of the financial assurance provisions in 
the Tennessee federal program.\584\
---------------------------------------------------------------------------

    \582\ 30 U.S.C. 1259(b).
    \583\ 30 U.S.C. 1259(c).
    \584\ 72 FR 9616, 9618-9619 (Mar. 2, 2007).
---------------------------------------------------------------------------

    One commenter expressed the opinion that, because annuities 
typically make payments at fixed intervals, an annuity, by itself, 
likely could not guarantee that funds always would be available 
immediately when needed to continue long-term treatment of a discharge, 
particularly if unexpected repair or replacement work must be performed 
without delay to keep the treatment system operational. For that 
reason, the commenter suggested that we revise our rules to allow use 
of an annuity only in combination with another mechanism that is able 
to cover all potential variations in treatment expenses. We did not 
revise our rules in the manner suggested by the commenter because we do 
not want to foreclose the possibility that an annuity could be 
structured to address the situation that the commenter describes. 
However, we revised the proposed definition of ``financial assurance'' 
to clarify that a financial assurance is a type of alternative bonding 
system, which means that it must meet the criteria of final Sec.  
800.9(a). Section 800.9(a)(1) provides that the alternative bonding 
system must assure that the regulatory authority will have available 
sufficient money to complete the reclamation plan for any areas which 
may be in default at any time. Furthermore, final Sec.  800.18 
establishes other criteria for financial assurances to ensure the 
availability of the funds needed for long-term treatment of discharges.
    One commenter requested that we clarify whether existing treatment 
trusts would automatically be reclassified as financial assurances upon 
publication of this final rule. This rule is not retroactive, so it 
will not operate as an automatic reclassification of existing treatment 
trusts as financial assurances. However, nothing in this rule would 
prohibit the regulatory authority from using the criteria in this rule 
to reevaluate the adequacy of existing trusts.
    Finally, a commenter recommended that we use the term ``trust'' in 
place of

[[Page 93239]]

``trust fund'' because the trust fund is only a part of a trust. We 
made the recommended change in the definition of ``financial 
assurance.''
Section 800.9: What requirements apply to alternative bonding systems?
    Section 800.9 sets forth the requirements for creating an 
alternative bonding system, such as a bond pool or long-term treatment 
trust. As proposed, final paragraph (a) provides that we may approve an 
alternative bonding system as part of a state or federal regulatory 
program if the alternative will assure that the regulatory authority 
will have available sufficient money to complete the reclamation plan 
for any areas which may be in default at any time, except as provided 
in paragraphs (c) and (d), and if the alternative provides a 
substantial economic incentive for the permittee to comply with all 
reclamation provisions.
    We revised and reorganized proposed paragraph (b) to improve 
clarity and adherence to plain language principles and to avoid 
creating the impression that financial assurances need not necessarily 
comply with final section 800.18, which sets forth special provisions 
that apply to all financial guarantees (including financial assurances) 
for long-term treatment of discharges. Specifically, final paragraph 
(b)(1) provides that the alternative bonding system will apply in lieu 
of the requirements of Sec. Sec.  800.12 through 800.23 ``with the 
exception of those provisions of Sec.  800.18 of this part that apply 
to financial assurances,'' to the extent specified in the regulatory 
program provisions establishing the alternative bonding system and the 
terms under which we approved the system. As proposed, final paragraph 
(b)(2) provides that the alternative bonding system must include 
appropriate conforming modifications to the bond release provisions of 
Sec. Sec.  800.40 through 800.44 and the bond forfeiture provisions of 
final Sec.  800.50.
    Final paragraph (c) provides that an alternative bonding system may 
be structured to include only certain phases of mining and reclamation 
under Sec.  800.42, provided that the other phases of mining and 
reclamation are covered by one of the types of bond listed in Sec.  
800.12. Final paragraph (c) differs from proposed paragraph (c) in that 
we replaced ``forms'' with ``types'' for consistency with revisions to 
Sec.  800.12.
    Proposed paragraph (d)(1) would have prohibited alternative bonding 
systems from covering restoration of the ecological function of a 
perennial or intermittent stream through which a permittee mines. One 
commenter supported the proposed prohibition. Other commenters opposed 
proposed paragraph (d)(1) for reasons that included an alleged lack of 
justification, alleged inappropriate meddling in, and unnecessary 
disruption of, existing alternative bonding systems, and a desire to 
take advantage of the added security of an alternative bonding system. 
One commenter noted that the preamble to proposed paragraph (d)(1) 
provided little information on the time needed to restore the 
ecological function of a stream and did not explain the statement that 
the time needed to restore that function makes coverage of that 
obligation by an alternative bonding system inappropriate. The preamble 
to the proposed rule states that an alternative bonding system should 
not be allowed to cover restoration of the ecological function of 
streams because that cost was not anticipated when the alternative 
bonding system was established. The commenter did not find this 
argument compelling because the same rationale would apply to other 
stream restoration costs that could be covered by alternative bonding 
systems under the proposed rule. Similarly, the commenter found 
unpersuasive the statement in the preamble that proposed paragraph 
(d)(1) was justified because restoration of the ecological function of 
a stream is the responsibility of the entity doing the mining, not the 
alternative bonding system. The commenter noted that, under SMCRA, the 
permittee always is responsible for reclamation obligations, regardless 
of the nature of those obligations. Overall, the commenter argued that 
the proposed prohibition had no basis because there are no data to 
support the conclusion that alternative bonding systems cannot 
satisfactorily cover the obligation to restore the ecological function 
of streams.
    After considering the arguments raised by commenters, we decided 
not to adopt proposed paragraph (d)(1). Thus, alternative bonding 
systems may provide coverage for restoration of the ecological function 
of a stream unless the state amends the regulations governing its 
alternative bonding system to provide otherwise. Once reconstruction of 
the form of the stream and restoration of hydrologic function are 
achieved, restoration of ecological function likely will involve few, 
if any, discrete activities or expenditures, with the possible 
exception of transplanting macroinvertebrates or fish to the re-
established stream. As one commenter on the proposed rule observed, 
restoration of the ecological function of a stream for which the form 
and hydrologic function have been restored primarily means waiting for 
the streamside vegetation to mature and provide nutrients, habitat, and 
thermal regulation to the stream. We agree with that comment, with the 
exception of situations in which water quality problems resulting from 
the mining operation exist. In those cases, the permittee would be 
required to take measures to correct the water quality problem under 
other provisions of the final rule. Failure to correct the source of 
any water quality issue would result in the need for long-term 
treatment, in which case final paragraph (d)(2) would prohibit posting 
of a self-bond.
    Thus, after further consideration, we anticipate that the direct 
cost of restoring the ecological function of a stream will be minimal, 
which means that the financial exposure of the alternative bonding 
system as a result of allowing use of self-bonding to guarantee 
restoration of ecological function is minimal. In addition, an 
alternative bonding system is a permanent entity, so the time required 
to document restoration of ecological function is not an issue. 
Therefore, we find that allowing an alternative bonding system to 
provide coverage for restoration of the ecological function of a stream 
poses little risk to the viability or financial health of the system.
    Proposed paragraph (d)(2)(i) prohibited alternative bonding systems 
from covering long-term treatment of discharges that come into 
existence after the effective date of this final rule unless, upon 
discovery of the discharge, the permittee makes a cash contribution to 
the alternative bonding system in an amount that the regulatory 
authority determines would be sufficient to cover all future treatment 
costs. The proposed rule also required that the contribution be 
maintained in a separate account available only for treatment of the 
discharge for which the contribution was made.
    Proposed paragraph (d)(2)(ii) specified that long-term treatment of 
discharges that came into existence before the effective date of the 
rule would continue to be covered by the alternative bonding system 
unless the state amends its alternative bonding system to provide 
otherwise. However, proposed paragraph (d)(2)(ii) also required that 
the permittee make a contribution to the alternative bonding system in 
an amount sufficient to cover all costs that the alternative bonding 
system will incur to treat the discharge in perpetuity.
    Several commenters alleged that proposed paragraph (d)(2) was 
confusing because, on one hand, it

[[Page 93240]]

prohibited alternative bonding systems from covering long-term 
treatment of discharges, while, on the other hand, it listed financial 
assurances, which are a type of alternative bonding system, as an 
acceptable method of guaranteeing long-term treatment. In response, we 
revised proposed paragraph (d)(2), which is now paragraph (d)(1) of the 
final rule, to specify that financial assurances under section 800.18 
may be used for long-term treatment of discharges, thus clarifying that 
the limitations in final paragraph (d)(1) on coverage of long-term 
treatment of discharges by alternative bonding systems do not apply to 
financial assurances.
    One commenter expressed concern that proposed paragraph (d)(2) did 
not address either sites for which forfeiture occurs before the 
applicable regulatory program is amended to implement the final rule or 
sites for which bond forfeiture occurs after the effective date of the 
program amendment but before the permittee makes a contribution to the 
alternative bonding system fully covering the estimated costs of long-
term treatment or replaces the alternative bonding system coverage with 
a collateral bond or financial assurance. The commenter noted that the 
scope of coverage of an existing alternative bonding system can only be 
changed through the submission and approval of a regulatory program 
amendment and even then can only be changed prospectively.
    The commenter further expressed concern that proposed paragraph 
(d)(2)(ii) could allow the elimination of all alternative bonding 
system coverage of treatment obligations dating back to when the state 
attained primacy because the proposed rule would require continued 
coverage under the existing alternative bonding system ``unless the 
regulatory authority amends its program to specifically establish an 
earlier effective date.'' According to the commenter, this clause would 
enable a state to exclude all existing discharges requiring long-term 
treatment from coverage under the alternative bonding system by 
specifying the date of approval of the permanent regulatory program for 
the state as the ``earlier effective date'' to which proposed paragraph 
(d)(2)(ii) refers.
    To cure these perceived defects in the proposed rule, the commenter 
recommended that the final rule specify that:
     The permittee's treatment obligation remains fully covered 
by any existing alternative bonding system unless and until a 
regulatory program amendment implementing section 800.9 takes effect 
and any existing (i.e., pre-program amendment) coverage under the 
alternative bonding system is replaced by a sufficient site-specific 
financial guarantee or contribution.
     The alternative bonding system remains liable for the cost 
of treating the discharge for as long as necessary if the regulatory 
authority forfeits the permittee's bond before replacement of coverage 
occurs.
     The alternative bonding system remains liable for the 
amount of the shortfall if the permittee's bond, financial assurance, 
or cash contribution to the alternative bonding system proves adequate 
to cover only part of the cost of treating the discharge.

We extensively revised proposed paragraph (d)(2) to address the issues 
that the commenter identified. Paragraph (d)(1) of the final rule that 
we are publishing today, which is the primary successor to proposed 
paragraph (d)(2), applies uniform requirements to all discharges 
regardless of whether the discharge was discovered before or after the 
effective date of this final rule. Final paragraph (d)(1) provides that 
a discharge requiring long-term treatment is not eligible for coverage 
under an alternative bonding system, other than a financial assurance 
under section 800.18, unless the permittee contributes cash in an 
amount equal to the present value of all costs that the regulatory 
authority estimates that the alternative bonding system will incur to 
treat the discharge for as long as the discharge requires active or 
passive treatment, taking into account the expenses listed in section 
800.18(c)(2)(i) through (v). Final paragraph (d)(1) also provides that, 
if the alternative bonding system will receive interest or other 
earnings on the cash contribution, the regulatory authority may deduct 
the present value of those estimated earnings from the present value of 
all estimated expenses when calculating the amount of the required cash 
contribution. Proposed paragraph (d)(2) required submission of a cash 
contribution ``sufficient'' to cover treatment costs, but it did not 
define or otherwise explain the meaning of ``sufficient.'' Final 
paragraph (d)(1) clarifies the meaning of ``sufficient,'' both by 
specifying the costs that must be included in the calculation and by 
specifying how those costs are to be used to determine the amount of 
the cash contribution.
    We added paragraph (d)(2) to the final rule in response to the 
comment summarized above. Final paragraph (d)(2)(i) provides that the 
regulatory authority must amend an alternative bonding system (other 
than a financial assurance) that we approved as part of a regulatory 
program before the effective date of this final rule to specify that 
any permittee responsible for an existing discharge requiring long-term 
treatment must provide a cash contribution to the alternative bonding 
system to cover anticipated future treatment costs if the permittee 
elects to retain coverage of discharge treatment under the alternative 
bonding system. Final paragraph (d)(2)(i) differs from proposed 
paragraphs (d)(2)(i) and (ii) in that it would require use of the state 
program amendment process under 30 CFR 732.17 to establish the 
requirement that participants in alternative bonding systems make a 
cash contribution to the alternative bonding system to cover long-term 
treatment costs. The proposed rule would have bypassed the state 
program amendment process and imposed this requirement on all 
alternative bonding systems as of the effective date of the final rule. 
We agree with the commenter that use of the state program amendment 
process is more consistent with the principle of state primacy and part 
732 of our regulations.
    Final paragraph (d)(2)(ii) provides that an alternative bonding 
system (other than a financial assurance) that we approved as part of a 
regulatory program before the effective date of this final rule must 
continue to provide coverage for long-term treatment of discharges 
until we approve the program amendment to which final paragraph 
(d)(2)(i) refers and until the permittee either makes the cash 
contribution required by the state program counterpart to final 
paragraph (d)(1) or posts a separate financial assurance, collateral 
bond, or surety bond to cover treatment costs. Final paragraph 
(d)(2)(iii) provides that an alternative bonding system (other than a 
financial assurance) that we approved as part of a regulatory program 
before the effective date of this final rule must continue to provide 
coverage for long-term treatment of discharges if the permittee does 
not make the cash contribution required by the state program 
counterpart to final paragraph (d)(1), unless the permittee posts a 
separate financial assurance, collateral bond, or surety bond to cover 
treatment costs. Final paragraphs (d)(2)(ii) and (iii) should avoid any 
gap in coverage of discharges that require long-term treatment.
    Final paragraph (d)(2)(iv) provides that final paragraphs (d)(2)(i) 
through (iii) do not apply to an alternative bonding system that we 
approved as part of a regulatory program if the system that we approved 
includes an

[[Page 93241]]

exclusion for coverage of discharges that require long-term treatment. 
Under those circumstances, the permittee is already required to provide 
separate coverage for treatment costs.
    We decline to adopt the commenter's recommendation that the rule 
provide that the alternative bonding system remains liable for the 
amount of the shortfall if the financial assurance or bond posted by 
the permittee, or the cash contribution that the permittee makes to the 
alternative bonding system in lieu of posting a financial assurance or 
bond, proves inadequate to cover the full cost of treating the 
discharge. In the case of a cash contribution, the alternative bonding 
system already is responsible for treatment costs for all covered 
discharges in the event that the permittee defaults on that obligation. 
However, when the permittee posts a separate financial assurance or 
bond, the alternative bonding system would no longer be responsible for 
treatment costs because it no longer covers that discharge. As 
specified in final paragraph (d)(3), the alternative bonding system may 
elect to provide secondary coverage for a discharge covered by a 
separate financial assurance or bond, but it is not required to do so. 
It would be neither equitable nor legal to require that the alternative 
bonding system cover a shortfall for an obligation for which it is has 
neither provided coverage nor received revenue. If the permittee 
defaults on a discharge treatment obligation covered by a financial 
assurance or bond, the bond forfeiture provisions of section 800.50 
would apply as they would in the case of default on any other 
reclamation obligation covered by a conventional bond. However, we 
anticipate that shortfalls would be rare, given the periodic adequacy 
reviews and adjustments required by Sec. Sec.  800.15 and 800.18.
    Another commenter observed that one consequence of adopting the 
proposed prohibition on alternative bonding system (other than 
financial assurances) coverage of long-term treatment of discharges 
would be to prevent the regulatory authority from relying on a 
statewide bond pool or similar mechanism for the limited purpose of 
bearing certain risks associated with a site-specific financial 
assurance (trust fund or annuity), such as the unpredicted failure of 
the treatment system or lower-than-expected returns. According to the 
commenter, the absence of a secondary risk-bearing mechanism means that 
the regulatory authority must require site-specific trust funds and 
annuities to hold conservative, low-risk investment portfolios, which 
would both reduce the expected rate of return and increase the amount 
of money that the permittee must deposit to establish the trust fund or 
annuity. As discussed in the preamble to final section 800.18, we agree 
with the commenter that site-specific trust funds and annuities should 
hold conservative, low-risk investment portfolios and we have revised 
section 800.18 to include that requirement. As discussed above, it 
would not be equitable to require bond pools and similar communal 
alternative bonding systems to provide secondary coverage for long-term 
treatment of discharges from operations that never participated in the 
alternative bonding system and never provided revenue to the system. 
However, in response to this comment, we added final paragraph (d)(3), 
which specifies that an alternative bonding system to which final 
paragraphs (d)(1) and (2) apply may elect to provide secondary coverage 
for long-term treatment of discharges when the permittee posts a 
financial assurance, collateral bond, or surety bond to cover estimated 
treatment costs instead of making the cash contribution required by 
paragraph (d)(1) to retain or obtain primary coverage under the 
alternative bonding system. Final paragraph (d)(3) also provides that 
the regulatory authority must establish terms and conditions for the 
secondary coverage to ensure that the coverage is consistent with the 
financial structure of the alternative bonding system.
    One commenter asked why proposed paragraph (d)(2)(i) required that 
cash contributions for discharges discovered after the effective date 
of the final rule be in an amount sufficient to cover the cost of 
treating the discharge ``to meet Clean Water Act standards or the water 
quality requirements of this chapter,'' while proposed paragraph 
(d)(2)(ii) required that cash contributions for existing discharges be 
in an amount sufficient ``to treat the discharge in perpetuity.'' Some 
commenters opposed the language in proposed paragraph (d)(2)(ii), 
arguing that not all discharges require perpetual treatment and that 
the rule should be sufficiently flexible to accommodate advances in 
science and different treatment horizons.
    Final paragraph (d)(1) addresses these concerns by replacing both 
of the proposed standards for duration of treatment with language 
requiring use of the cost calculation methodology set forth in section 
800.18(c). Final paragraph (d)(1) provides that the amount of the cash 
contribution to the alternative bonding system must be in an amount 
equal to the present value of all costs that the regulatory authority 
estimates that the alternative bonding system will incur to treat the 
discharge for as long as the discharge requires active or passive 
treatment, taking into account the expenses listed in Sec.  
800.18(c)(2)(i) through (v). Final paragraph (d)(1) further provides 
that, if the alternative bonding system will receive interest or other 
earnings on the cash contribution, the regulatory authority may deduct 
the present value of those estimated earnings from the present value of 
all estimated expenses when calculating the amount of the required cash 
contribution. This approach also clarifies the meaning of 
``sufficient'' in the proposed rule in a manner consistent with final 
section 800.18(d) for financial assurances and final section 
800.18(c)(2) for collateral bonds and surety bonds posted for this 
purpose.
    We did not adopt the provision in proposed paragraph (d)(2)(i) that 
would have required that the alternative bonding system place cash 
contributions in a separate account available only for treatment of the 
discharge for which the contribution is made. Some commenters alleged 
that this provision would be inconsistent with state accounting 
requirements and practices, as well as the pooling principle underlying 
most alternative bonding systems, other than financial assurances. 
After considering these arguments, we decided against adoption of the 
proposed provision because the alternative bonding system remains 
responsible for treatment of all discharges covered by the system, as 
well as completion of all other reclamation obligations of 
participating operations, in the event of permittee default, regardless 
of the method of accounting.
    One commenter alleged that requiring participants in existing 
alternative bonding systems to make a cash contribution to the system 
or post separate financial assurances or bonds to cover treatment costs 
for discharges requiring long-term treatment was unfair because 
participants in alternative bonding systems have already paid entry 
fees and continue to pay whatever assessment is required to maintain 
participation in the system. According to the commenter, the proposed 
requirement would force participants to pay twice. We do not agree. The 
regulatory authority should not issue a permit for a proposed operation 
that would result in a discharge requiring long-term treatment. 
Therefore, typically, alternative bonding systems, like conventional 
bonds, are structured on the presumption that no such discharges will 
occur. If

[[Page 93242]]

unanticipated discharges requiring long-term treatment do occur, 
treatment costs could threaten the viability of the alternative bonding 
system or require increased assessments on participants with operations 
that do not result in discharges of that nature. Thus, a requirement 
that individual permittees bear the cost of treating unanticipated 
discharges requiring long-term treatment, either by posting a separate 
financial assurance, collateral bond, or surety bond or by making a 
cash contribution to the alternative bonding system, is the most 
equitable arrangement to avoid unfairly burdening other participants in 
the alternative bonding system. To the extent that an existing 
alternative bonding system may already require individual payments for 
future treatment of discharges of that nature, those payments may be 
deducted from the amount of the cash contribution.
Section 800.10: Information Collection
    Section 800.10 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 800.
Section 800.11: When and how must I file a performance bond?
    Section 800.11 discusses when and how a permit applicant or 
permittee must file a performance bond. We are adopting section 800.11 
as proposed, with one revision. Proposed paragraph (c)(3) required that 
a permittee using incremental bonding file additional bond or bonds 
with the regulatory authority to cover each succeeding increment before 
initiating and conducting surface coal mining operations on that 
increment. However, proposed paragraph (c)(3) was silent on whether 
bonds for increments other than the initial increment must comply with 
proposed paragraph (b), which provided that the bond must be in an 
amount determined under section 800.14, be on a form prescribed and 
furnished by the regulatory authority, be made payable to the 
regulatory authority, and be conditioned upon the faithful performance 
of all the requirements of the regulatory program and the permit, 
including the reclamation plan. Section 509(a) of SMCRA \585\ requires 
that performance bonds posted before permit issuance comply with 
requirements substantively identical to those contained in section 
800.11(b) of this final rule. It further states that the permittee must 
file bonds for future increments ``in accordance with this section.'' 
Therefore, to ensure consistency with section 509(a) of SMCRA and to 
correct the ambiguity in the proposed rule, final paragraph (c)(3) 
provides that the bond or bonds for successive increments must comply 
with paragraph (b) of this final rule.
---------------------------------------------------------------------------

    \585\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

Section 800.12: What types of performance bond are acceptable?
    In this final rule, we are revising the section heading to refer to 
the type of performance bond allowed, rather than the form of the bond 
as in the proposed and previous rules. This revision corrects an error 
in the proposed and previous rules and removes an inconsistency with 
section 509(a) of SMCRA,\586\ in which the term ``form'' refers to the 
document that constitutes the bond, not the various types of bonding 
mechanisms. For the same reason, the final rule replaces the term 
``form'' in section 800.12 with ``type'' wherever the former term 
appeared in the proposed rule.
---------------------------------------------------------------------------

    \586\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    Similarly, we are not adopting proposed paragraph (a), which 
corresponds to the first sentence of previous Sec.   800.12. That 
sentence stated that the regulatory authority must prescribe the form 
of the performance bond. Section 509(a) of SMCRA does indeed require 
that the bond be filed ``on a form prescribed and furnished by the 
regulatory authority,'' but Sec.  800.11(b)(2) of this final rule 
already includes a counterpart to that requirement and there is no need 
to repeat it in Sec.  800.12.
    One commenter argued that section 800.12 should not include any 
mention of alternative bonding systems or financial assurances because 
the section heading refers only to performance bonds and readers might 
draw the erroneous conclusion that financial assurances are something 
other than a type of alternative bonding system. We disagree. Section 
509 of SMCRA,\587\ which contains provisions governing both 
conventional bonds and alternative bonding systems, is simply entitled 
``Performance Bonds.'' Therefore, all types of bonding mechanisms, both 
conventional and alternative, are considered performance bonds for 
purposes of section 509 of SMCRA. The heading for Sec.  800.12 of this 
final rule merely follows the statutory lead. Section 800.12 of this 
final rule is intended to provide a complete picture of available 
bonding options under 30 CFR part 800 and section 509 of SMCRA. We 
revised the definition of ``financial assurance'' in section 800.5 to 
specify that it is a type of alternative bonding system, so there 
should be no confusion as to which provisions of part 800 apply to 
financial assurances.
---------------------------------------------------------------------------

    \587\ 30 U.S.C. 509.
---------------------------------------------------------------------------

    Final paragraph (a), like paragraph (b) of the proposed rule, lists 
the types of performance bonds that the regulatory authority may 
accept; i.e., a surety bond, a collateral bond, a self-bond, or a 
combination of those types of bond. The final rule differs from the 
proposed rule in that the final rule replaces ``form'' with ``type'' 
and updates cross-references. The regulatory authority has the 
discretion to allow posting of fewer types of bond as part of its 
approved regulatory program. For example, the regulatory authority may 
decide not to include self-bonds as an allowable type of bond under its 
regulatory program.
    Final paragraph (b), like proposed paragraph (c), specifies that an 
alternative bonding system approved under Sec.  800.9 of this rule may 
accept either more or fewer types of bond than those listed in 
paragraph (a) of the final rule. Final paragraph (b) differs from 
proposed paragraph (c) in that the final rule replaces ``form'' with 
``type'' and updates cross-references.
    Proposed paragraph (d) would have allowed the regulatory authority 
to accept only a financial assurance or a collateral bond to guarantee 
treatment of a long-term discharge under Sec.  800.18 of this rule. 
Several commenters opposed this limitation. One regulatory authority 
requested that we revise proposed paragraph (d) to also allow the use 
of surety bonds because the regulatory authority had long relied upon 
surety bonds for coverage of some discharges requiring long-term 
treatment. According to the commenter, when a surety bond is forfeited, 
the surety typically establishes a fully-funded trust rather than 
paying the bond amount to the state. We confirm that, as stated in the 
preamble to the proposed rule,\588\ surety bonds are not the best means 
of guaranteeing treatment of postmining discharges because surety bonds 
are not designed to provide the income stream needed to fund ongoing 
treatment. However, based on the assertion by the regulatory authority, 
we have added surety bonds to the list of acceptable instruments for 
guaranteeing long-term treatment. Paragraph (c) of the final rule, 
which corresponds to paragraph (d) of the proposed rule, provides that 
the regulatory authority may accept a financial assurance, collateral 
bond, or surety bond to guarantee long-term treatment of discharges.
---------------------------------------------------------------------------

    \588\ 80 FR 44436, 44533 (Jul. 27, 2015).

---------------------------------------------------------------------------

[[Page 93243]]

    One commenter alleged that the proposed rule provides no supporting 
evidence for provisions that would restrict financially sound companies 
from using the entire panoply of financial mechanisms, including self-
bonding mechanisms consistent with the requirements of section 509(c) 
of SMCRA.\589\ The commenter noted that state and federal bonding 
regulations require that the regulatory authority examine a company's 
finances at the time of permit renewal to ascertain if the company 
continues to qualify to self-bond and that the regulatory authority 
also may conduct this evaluation as part of the midterm permit review. 
According to the commenter, these reviews provide sufficient protection 
to the regulatory authority. We do not agree that the periodic review 
requirement for self-bonds provides a satisfactory level of assurance 
that the funds needed for treatment will be available if the permittee 
ceases treatment. The periodic reviews cited by the commenter may be 
too late to ensure that a self-bonded company in rapidly deteriorating 
financial health has either the resources to post the required 
replacement bond or the ability to complete the reclamation work 
itself. Under final section 800.23(g), a self-bonded permittee must 
notify the regulatory authority whenever it no longer meets self-
bonding eligibility criteria. The permittee then has 90 days to post a 
replacement surety or collateral bond. However, a financially 
distressed company may be unable to obtain replacement bond coverage, 
especially the large sums required to guarantee long-term treatment of 
discharges.
---------------------------------------------------------------------------

    \589\ 30 U.S.C. 1259(c).
---------------------------------------------------------------------------

    In addition, the final rule does not allow posting of a self-bond 
to cover long-term treatment of discharges because self-bonds provide 
none of the tangible financial resources afforded by financial 
assurances, collateral bonds, or surety bonds. Financial assurances 
provide the income stream needed to fund treatment. Collateral bonds 
require the deposit of letters of credit, cash accounts, certificates 
of deposit, bonds, or real property, all of which can be used to fund 
treatment if the permittee fails to do so. Surety bonds provide a 
guarantee of payment of a sum certain from an independent company.
    Proposed paragraph (e) provided that the regulatory authority may 
accept only a surety bond, a collateral bond, or a combination thereof 
to guarantee restoration of the ecological function of a perennial or 
intermittent stream under proposed Sec. Sec.  780.28(c), 784.28(c), 
816.57(b), and 817.57(b). Many commenters opposed this proposed rule 
and the underlying requirement to post a bond to guarantee restoration 
of the ecological function of perennial and intermittent streams 
through which the permittee mines. The reasons for opposition included 
uncertainty on how to determine the amount of the bond or the duration 
of the bond, a belief that the bond amount would be astronomical and 
financially ruinous, and concerns that this requirement would dry up 
the remaining sources of surety bonds for the reclamation of coal 
mines. An organization representing the surety industry noted that a 
surety bond covering this obligation might not be widely available in 
the market because, typically, there must be certainty regarding the 
scope and nature of the obligation and the duration of the obligation 
must be reasonable. According to the commenter, a surety would have 
great difficulty underwriting the new obligation because that 
obligation lacks an objective standard and appears susceptible to wide 
variability based on circumstances beyond the permittee's control. The 
commenter further explained that, when underwriting a bond, the surety 
makes a judgment about the operational and financial viability of the 
permittee--a judgment that becomes less certain and more risky as the 
obligation extends further into the future. In this case, according to 
the commenter, the duration of the obligation would be too long for the 
surety industry to underwrite.
    We recognize that there are uncertainties associated with 
restoration of the ecological function of streams. We also recognize 
that some in the surety industry may be unwilling to underwrite bonds 
for this reclamation obligation. However, surety bonds are not the only 
available option. Collateral bonds are a possibility under final 
paragraph (d), as are alternative bonding systems under final Sec.  
800.9 in states that have those systems. Once reconstruction of the 
form of the stream and restoration of hydrologic function have been 
accomplished, we anticipate that subsequent restoration of ecological 
function likely will involve few, if any, discrete activities or 
expenditures, with the possible exception of transplanting 
macroinvertebrates or fish to the re-established stream.
    One commenter on the proposed rule observed that restoration of the 
ecological function of perennial and intermittent streams, which the 
permittee must achieve prior to Phase III bond release, primarily means 
ensuring the performance standards for the streamside vegetation have 
been satisfied consistent with final section 816.115, ensuring the 
streamside vegetation has matured sufficiently to provide nutrients, 
habitat, and thermal regulation to the stream. The commenter is largely 
correct, because under our regulations most of the physical 
reconstruction necessary to reestablish the ecological function of the 
stream will have been completed at earlier phrases. Specifically, 
pursuant to final section 800.42(b)(1), the form of a stream, as 
defined in final Sec.  701.5, must be restored prior to achieving Phase 
I bond release, while pursuant to final Sec.  800.42(c)(1)(ii), the 
hydrologic function of the stream must be restored prior to achieving 
Phase II bond release. Also, prior to achieving Phase II bond release, 
revegetation, including successfully establishing the streamside 
vegetative corridor, pursuant to final Sec.  800.42(c)(1)(iii) must 
occur. For these reasons, the final rule does not require that costs 
associated with reconstructing the stream channel and floodplain be 
included in the cost of restoring ecological function; those 
reconstruction costs are specifically included as part of the costs of 
some other element of the reclamation plan--most likely the cost of 
final grading and reestablishment of the surface drainage pattern and 
stream-channel configuration, which must be accomplished before Phase I 
bond release. Similarly, the final rule does not require that costs 
associated with establishment of the streamside vegetative corridor be 
included in the cost of restoring ecological function, because those 
costs are specifically included as part of the cost of implementing the 
revegetation plan approved in the permit, which must identify the type 
of vegetation and planting techniques required for establishment of 
streamside vegetative corridors, typical of Phase II bond release.
    However, the commenter's point about revegetation should not be 
taken too far. Compliance with the performance standards for a 
streamside vegetative corridor is not the only consideration when 
regulatory authorities assess whether the permittee has restored the 
ecological function of perennial and intermittent streams. Restoration 
of ecological function includes restoration of the species richness, 
diversity, and extent of organisms for which the stream provides 
habitat, food, water, and shelter. Nonetheless, most of the reclamation 
work necessary to establish conditions favorable to restoration of

[[Page 93244]]

these organisms will have occurred during Phase I or Phase II 
reclamation. We thus anticipate that the direct cost of Phase III 
reclamation, including restoring the ecological function of a perennial 
or intermittent stream, will be minimal in comparison to those incurred 
in connection with Phase I and Phase II reclamation. This means in turn 
that the amount of bond required to guarantee restoration of ecological 
function should be minimal. The regulatory authority may allow the 
permit applicant or permittee to post any type of performance bond for 
reclamation obligations other than restoration of the ecological 
function of a stream. However, the permit applicant or permittee must 
post a type of bond other than a self-bond to guarantee restoration of 
the ecological function of a stream. To be consistent with final Sec.  
800.42(c)(2), when determining the amount of bond that should be held 
to ensure restoration of ecological function, the regulatory authority 
must consider the amount of work necessary to facilitate restoration. 
Furthermore, mining companies can avoid this problem entirely if they 
do not mine through perennial or intermittent streams. Therefore, we 
are adopting proposed paragraph (e) as paragraph (d) of the final rule. 
Final paragraph (d), which is substantively identical to proposed 
paragraph (e), provides that the regulatory authority may accept any 
type of performance bond listed in paragraph (a) other than a self-bond 
to guarantee restoration of the ecological function of a perennial or 
intermittent stream under Sec. Sec.  780.28(e) and (g), 784.28(e) and 
(g), 816.57(g), and 817.57(g).
    One commenter alleged that eliminating self-bonding for mining 
through ephemeral streams would severely limit the ability to mine in 
the Powder River Basin because of the prevalence of self-bonds in that 
region. Our final rule does not require the restoration of ecological 
function for ephemeral streams. Therefore, the final rule would not 
have the effect alleged by the commenter.
    Some commenters argued that there is no basis under SMCRA to limit 
the types of bond that the applicant or permittee may post to cover 
this obligation. According to another commenter, the preamble to the 
proposed rule did not justify the exclusion of self-bonds because it 
did not discuss regulatory authority experience with self-bonds or 
identify the time required for restoration of ecological function. The 
implication is that we have not shown that self-bonds cannot 
satisfactorily guarantee restoration of ecological function.
    We do not agree with the commenters' assertion that we have no 
legal basis under SMCRA to prohibit the use of self-bonds to guarantee 
restoration of the ecological function of streams. Section 509(b) of 
SMCRA \590\ grants the applicant or permittee the right to post a 
surety or collateral bond. However, language of section 509(c) of SMCRA 
\591\ differs from that of section 509(b) in that section 509(c) 
provides that the regulatory authority ``may'' accept a self-bond. The 
term ``may'' is discretionary, which means that the regulatory 
authority has the authority to decline to accept a self-bond. In this 
case, we find it prudent to prohibit the use of self-bonds to guarantee 
restoration of the ecological function of streams because the 
requirement is new, the time needed to accomplish restoration of 
ecological function is uncertain, and there is little industry or other 
experience available for comparison.
---------------------------------------------------------------------------

    \590\ 30 U.S.C. 1259(b).
    \591\ 30 U.S.C. 1259(c).
---------------------------------------------------------------------------

Section 800.13: What is the liability period for a performance bond?
    Proposed Sec.  800.13(a)(1) provided that liability under the 
performance bond will be for the duration of the surface coal mining 
and reclamation operation and for a period coincident with the period 
of extended responsibility for successful revegetation under Sec.  
816.115 or Sec.  817.115 or until achievement of the reclamation 
requirements of the regulatory program and the permit, whichever is 
later. We received no comments on this provision and are adopting it as 
proposed.
    Proposed paragraph (a)(2) provided that, with the approval of 
regulatory authority, the applicant or permittee may post a performance 
bond to guarantee specific phases of reclamation within the permit 
area, provided that the sum of the phase bonds posted equals or exceeds 
the total amount required under Sec. Sec.  800.14 and 800.15. We 
received no comments on this provision and are adopting it as proposed 
with minor editorial revisions.
    Proposed paragraph (b) provided that isolated and clearly defined 
portions of the permit area that require extended liability may be 
separated from the original area and bonded separately with the 
approval of the regulatory authority. Proposed paragraph (b)(1) 
specified that these areas must be limited in extent and not constitute 
a scattered, intermittent, or checkerboard pattern of failure, while 
proposed paragraph (b)(3) provided that the regulatory authority must 
include any necessary access roads or routes in the area under extended 
liability. We received no comments on those proposed provisions. For 
the reasons discussed below, we are adopting proposed paragraph (b)(3) 
as final paragraph (b)(2). Otherwise, we are adopting paragraph (b) as 
proposed, with minor editorial revisions.
    Proposed paragraph (b)(2) provided that the introductory text of 
proposed paragraph (b) and proposed paragraphs (b)(1) and (3) apply to 
the amount of bond posted to guarantee restoration of the ecological 
function of perennial and intermittent streams. We are not adopting 
proposed paragraph (b)(2) because it is unnecessary. The introductory 
text of final paragraph (b) and final paragraphs (b)(1) and (2) have no 
limitations in terms of applicability. Thus, there is no need to 
include language that merely identifies one situation (restoration of a 
stream's ecological function) that may require extended liability under 
the bond.
    Proposed paragraph (c) provided that, if the regulatory authority 
approves a long-term, intensive agricultural postmining land use, the 
revegetation responsibility period specified under Sec.  816.115 or 
Sec.  817.115 will start on the date of initial planting for the long-
term agricultural use. We received no comments on this paragraph and 
are adopting it as proposed.
    Proposed paragraph (d)(1) provided that the bond liability of the 
permittee includes only those actions that the permittee is required to 
perform under the permit and regulatory program to complete the 
reclamation plan for the area covered by the bond. We received no 
comments on paragraph (d)(1) and are adopting it as proposed.
    Proposed paragraph (d)(2) provided that the performance bond does 
not cover implementation of an alternative postmining land use approved 
under Sec.  780.24(b) or Sec.  784.24(b) when implementation of the 
land use is beyond the control of the permittee. It also specified 
that, except as provided in Sec. Sec.  785.14(b)(11) and 785.16(a)(13), 
the permittee is responsible only for restoring the site to conditions 
capable of supporting the approved postmining land use. Upon further 
evaluation, we determined that proposed paragraph (d)(2) is not 
consistent with our previous, proposed, and final postmining land use 
regulations in Sec. Sec.  816.133 and 817.133, all of which require 
that the permittee restore all disturbed areas in a timely manner to 
conditions that are capable of supporting either the uses they were

[[Page 93245]]

capable of supporting before any mining or higher or better uses. Our 
postmining land use regulations are based upon section 515(b)(2) of 
SMCRA,\592\ which contains a substantively identical requirement. Two 
court decisions have held, in a slightly different context, that a 
requirement to implement the postmining land use is inconsistent with 
section 515(b)(2) of SMCRA and its legislative history, which only 
require that the permittee demonstrate the capability of the land to 
support the postmining land use and demonstrate restoration of 
premining productivity.\593\
---------------------------------------------------------------------------

    \592\ 30 U.S.C. 1265(b)(2).
    \593\ See In re: Permanent Surface Mining Regulation Litigation, 
14 Env't Rep.Cas. (BNA) 1083, 1106 (SMCRA does not require actual 
grazing or mandatory crop production on the reclaimed area to 
demonstrate that the land has been restored to a condition in which 
it is capable for use as pasture land or prime farmland), and 1108 
(``The Act only requires an operator to demonstrate a reasonable 
likelihood of sustaining higher or better use.'' It does not support 
a requirement for letters of commitment or a firm written commitment 
from third parties to implement the use.) (D.D.C. Feb. 26, 1980). 
see also In re Permanent Surface Mining Regulation Litigation 
(Consolidated Action), 620 F. Supp. 1519, 1563 (D.D.C. 1985).
---------------------------------------------------------------------------

    The first sentence of proposed paragraph (d)(2) provided that the 
bond does not cover implementation of an approved alternative 
postmining land use that is beyond the control of the permittee. That 
language is inconsistent with the court decisions summarized above, 
which, in effect, held that SMCRA does not require that the permittee 
implement any approved postmining land use, regardless of whether that 
use is an alternative postmining land use. Therefore, we are not 
adopting the rule as proposed. The first sentence of final paragraph 
(d)(2) simply provides that the performance bond does not cover 
implementation of the approved postmining land use or uses.
    For similar reasons, we are not adopting the second sentence of 
proposed paragraph (d)(2), which provided that the permittee is 
responsible only for restoring the site to conditions capable of 
supporting the approved postmining land use. As discussed above, 
section 515(b)(2) of SMCRA and Sec. Sec.  816.133 and 817.133 of our 
final rule require restoration to a condition capable of supporting 
either the uses it could support before any mining or higher or better 
uses. Proposed paragraph (d)(2) is less stringent than those provisions 
because it specifies that the permittee's bond liability is limited to 
restoration of the land to a condition in which it is capable of 
supporting the approved postmining land use. Thus, it does not extend 
bond coverage to full restoration of the site's premining capability, 
which is, in part, what section 515(b)(2) of SMCRA and Sec. Sec.  
816.133 and 817.133 of our final rule require. In addition, the 
introductory clause of the second sentence of proposed paragraph (d)(2) 
created an exception for mountaintop removal mining operations and 
steep-slope variances from approximate original contour restoration 
requirements. Sections 515(c)(3) and (e)(2) of SMCRA \594\ authorize 
approval of mountaintop removal mining operations and steep-slope 
variances only for certain types of postmining land uses, but SMCRA 
does not require that the permittee actually implement those uses as 
part of surface coal mining and reclamation operations. Therefore, we 
are not adopting the introductory clause of the second sentence of 
proposed paragraph (d)(2) as part of final paragraph (d)(2), which now 
simply states that the permittee is responsible only for restoring the 
site to conditions capable of supporting the uses specified in Sec.  
816.133 or Sec.  817.133.
---------------------------------------------------------------------------

    \594\ 30 U.S.C. 1265(c)(3) and (e)(2).
---------------------------------------------------------------------------

    Finally, proposed paragraph (d)(4) provided that bond liability for 
treatment or abatement of long-term discharges is specified in Sec.  
800.18. However, while final Sec.  800.18(b) allows the use of 
collateral and surety bonds to cover long-term treatment of discharges, 
it focuses on the use of financial assurances for that purpose. 
Financial assurances are a type of alternative bonding system. 
Therefore, final paragraph (d)(4) does not include the term ``bond.'' 
It simply provides that Sec.  800.18 specifies the liability for long-
term treatment or abatement of discharges.
Section 800.14: How will the regulatory authority determine the amount 
of performance bond required?
    Proposed Sec.  800.14(a) provided that the regulatory authority 
must determine the amount of the performance bond required for the 
permit or permit increment based upon, but not limited to, the 
requirements of the permit; the probable difficulty of reclamation, 
giving consideration to the topography, geology, hydrology, and 
revegetation potential of the permit area and the biological condition 
of perennial and intermittent streams within the permit and adjacent 
areas; and the estimated reclamation costs submitted by the permit 
applicant. Proposed paragraph (a) was substantively identical to 
previous paragraph (a) with the exception that proposed paragraph 
(a)(2) added the biological condition of perennial and intermittent 
streams within the permit and adjacent areas to the list of factors 
upon which the bond amount must be based. One commenter alleged that 
this addition would require that the bond cover impacts to adjacent 
areas, not just the permit area. This was not our intent. Upon 
reconsideration, we decided not to adopt the added phrase. Paragraph 
(a)(1), which requires consideration of the requirements of the permit, 
already covers costs associated with mining through and restoring 
perennial and intermittent streams, including restoration of the 
ecological function of those streams, as well as any measures taken to 
protect streams. Therefore, there is no need for specific mention of 
the biological condition of perennial and intermittent streams in 
paragraph (a)(2).
    One commenter observed that the term ``probable difficulty of 
reclamation'' in proposed paragraph (a)(2) is not defined and is 
otherwise vague. The commenter recommended that we delay adoption of 
this provision until after we convene a panel of experts to consider 
this matter and develop the needed factors and methods. We do not 
agree. Section 509(a) of SMCRA \595\ provides that ``[t]he amount of 
the bond required for each bonded area * * * shall reflect the probable 
difficulty of reclamation giving consideration to such factors as 
topography, geology of the site, hydrology, and revegetation 
potential.'' Previous Sec.  800.14(a)(3) included an equivalent 
requirement. Calculation of bond amounts under these provisions has 
rarely been an issue in recent years. In practice, the regulatory 
authority typically calculates the amount of bond required by 
determining what it would cost the regulatory authority to complete the 
reclamation plan in the event of forfeiture. This method indirectly 
includes consideration of the listed factors. Therefore, we find that 
convening a panel of experts to flesh out the meaning of this statutory 
requirement is neither necessary nor an efficient use of resources.
---------------------------------------------------------------------------

    \595\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    Proposed paragraph (b)(1) provided that the amount of the 
performance bond must be sufficient to assure the completion of the 
reclamation plan if the work has to be performed by a third party under 
contract with the regulatory authority in the event of forfeiture. We 
received no comments on proposed paragraph (b)(1) and are adopting it 
as paragraph (b) of the final rule.
    We are not adopting proposed paragraph (b)(2), which required that 
the calculations used to determine the

[[Page 93246]]

amount of bond required for the permit specifically identify the amount 
of bond needed to guarantee restoration of the ecological function of a 
perennial or intermittent stream under proposed Sec. Sec.  780.28 and 
816.57 or proposed Sec. Sec.  784.28 and 817.57. Proposed paragraph 
(b)(2) further provided that the permittee must post either a separate 
bond for that amount or incorporate that amount into the bond posted 
for the entire permit or increment. Some commenters expressed concern 
about how to monetize costs for restoring the ecological function of a 
stream, which, one commenter noted, primarily involves waiting for the 
streamside vegetative corridor to mature. We agree that restoration of 
the ecological function of a stream, as opposed to reconstruction of 
the stream channel and planting of the streamside vegetative corridor, 
involves few, if any, discrete costs, with the possible exception of 
transplants of macroinvertebrates and fish. Therefore, we decided not 
to require a separate calculation of the cost of restoration of the 
ecological function of a stream.
    Proposed paragraph (c) provided that, when the permit includes a 
variance from approximate original contour restoration requirements 
under section 785.16, the amount of the performance bond must be 
sufficient to restore the disturbed area to the approximate original 
contour if the approved postmining land use is not implemented by the 
end of the applicable revegetation responsibility period under Sec.  
816.115 or Sec.  817.115. We are not adopting proposed paragraph (c) or 
its counterpart in section 785.16 for the reasons discussed in the 
preamble to proposed Sec.  785.16(a)(13) and final Sec.  785.16(b)(2). 
In lieu of proposed Sec. Sec.  785.16(a)(13) and 800.14(c), final Sec.  
785.16(b)(2) provides that a permit that contains a variance from 
restoration of approximate original contour must include a condition 
prohibiting the release of any part of the bond posted for the permit 
until substantial implementation of the approved postmining land use is 
underway. The prohibition on bond release does not apply to any portion 
of the bond that is in excess of an amount equal to the cost of 
regrading the site to its approximate original contour and revegetating 
the regraded land in the event that the approved postmining land use is 
not implemented.
    Proposed paragraph (d) provided that the amount of financial 
assurance required for long-term treatment of discharges must be 
determined in accordance with section 800.18. Commenters recommended 
that we apply similar requirements to the determination of the amount 
of performance bond required when the permittee elects to post a 
collateral bond or surety bond instead of a financial assurance for 
this purpose. We agree and have added those bond calculation 
requirements to final section 800.18(c). We revised proposed paragraph 
(d) to reference collateral bonds and surety bonds to be consistent 
with this change. We also redesignated proposed paragraph (d) as final 
paragraph (c) to reflect our decision not to adopt proposed paragraph 
(c). Final paragraph (c) provides that the amount of financial 
assurance, collateral bond, or surety bond required to guarantee long-
term treatment of discharges must be determined in accordance with 
Sec.  800.18.
    Proposed paragraph (e) provided that the total performance bond 
initially posted for the entire area under one permit may not be less 
than $10,000. Proposed paragraph (f) provided that the permittee's 
financial responsibility under Sec.  817.121(c) for repairing or 
compensating for material damage resulting from subsidence may be 
satisfied by the liability insurance policy required under Sec.  
800.60. We received no comments on these proposed paragraphs and are 
adopting them as proposed, with the exception that we redesignated them 
as final paragraphs (d) and (e), respectively, to reflect our decision 
not to adopt proposed paragraph (c).
Section 800.15: When must the regulatory authority adjust the 
performance bond amount and when may I request adjustment of the bond 
amount?
    Proposed Sec.  800.15 contained procedures and criteria for 
adjustment of bond amounts after permit issuance. Final Sec.  800.15 is 
substantively identical to proposed Sec.  800.15, but, in the final 
rule, we revised and reorganized the paragraphs to improve clarity and 
to correct an inadvertent error in the proposed rule. With the 
exception of proposed paragraphs (a)(2)(ii) and (iii), proposed 
paragraph (a) applied only to situations in which the regulatory 
authority must adjust the bond amount. Proposed paragraph (a)(2)(ii) 
identified the circumstances under which the permittee may request a 
bond adjustment. To better distinguish between these two scenarios, we 
are adopting proposed paragraph (a)(2)(ii) as final paragraph (b). 
Proposed paragraph (a)(2)(iii) provided that the regulatory authority 
may not use the bond adjustment process to reduce the amount of the 
performance bond to reflect changes in the cost of reclamation 
resulting form completion of activities required under the reclamation 
plan. We are adopting proposed paragraph (a)(2)(iii) as paragraph (d) 
in the final rule because it applies to both adjustments initiated by 
the regulatory authority and adjustments initiated by the permittee.
    Proposed paragraph (b) provided that the regulatory authority must 
notify the permittee, the surety, and any person with a property 
interest in collateral who has requested notification under Sec.  
800.21(f) of any proposed adjustment to the bond amount. It also 
specified that the regulatory authority must provide the permittee an 
opportunity for an informal conference on the adjustment. We are 
adopting proposed paragraph (b) as paragraph (e) in the final rule 
because it applies to both adjustments initiated by the regulatory 
authority and adjustments initiated by the permittee. We also are 
adding an introductory clause to final paragraph (e) to clarify that 
the paragraph sets forth notice and procedural requirements that the 
regulatory authority must follow before making any bond adjustment.
    Proposed paragraph (c) provided that bond reductions under proposed 
paragraph (a) are not subject to the bond release requirements and 
procedures of Sec. Sec.  800.40 through 800.44. We received no comments 
on this paragraph and are adopting it as proposed, with one conforming 
revision. Final paragraph (c) refers to bond reductions under 
paragraphs (a) and (b) to reflect the reorganization discussed above in 
which we revised proposed paragraph (a) to include just those 
provisions that pertain only to bond adjustments required by the 
regulatory authority in final paragraph (a) and moved those provisions 
of proposed paragraph (a) that pertain only to bond adjustments 
requested by the permittee to final paragraph (b).
    The final rule redesignates proposed paragraphs (d), (e), and (f) 
as paragraphs (f), (g), and (h), respectively. Proposed paragraph (d) 
provided that, in the event that an approved permit is revised in 
accordance with subchapter G, the regulatory authority must review the 
bond amount for adequacy and, if necessary, require adjustment of the 
bond amount to conform to the permit as revised. It also included a 
reminder that the bond adjustment process may not be used to reduce 
bond amounts on the basis of completion of reclamation activities. We 
received no comments on proposed paragraph (d), which we are adopting 
as final paragraph (f), with minor editorial revisions for clarity.

[[Page 93247]]

    Proposed paragraph (e) provided that the regulatory authority must 
require that the permittee post a bond or financial assurance in 
accordance with Sec.  800.18 whenever a discharge that will require 
long-term treatment is identified. We received no comments on proposed 
paragraph (d). Final paragraph (g) is substantively identical to 
proposed paragraph (e), with minor changes to conform to plain language 
principles and to clarify that the bond must be either a collateral 
bond or a surety bond.
    Proposed paragraph (f) provided that the regulatory authority may 
not reduce the bond amount when the permittee does not restore the 
approximate original contour as required or when the reclamation plan 
does not reflect the level of reclamation required under the regulatory 
program. We received no comments on proposed paragraph (f), which we 
are adopting as final paragraph (h).
Section 800.16: What are the general terms and conditions of a 
performance bond?
    We are adopting section 800.16 as proposed. We received no comments 
on this section.
Previous Sec.  800.17: Bonding Requirements for Underground Coal Mines 
and Long-Term Coal-Related Surface Facilities and Structures
    We removed and reserved previous Sec.  800.17 for the reasons 
discussed in the preamble to the proposed rule.\596\ We received no 
comments specifically opposing our proposed removal of this section.
---------------------------------------------------------------------------

    \596\ 80 FR 44436, 44537 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 800.18: What special provisions apply to financial guarantees 
for long-term treatment of discharges?
    We received a wide range of comments on proposed Sec.  800.18. Some 
commenters challenged the validity of the proposed rule on legal 
grounds, while others supported it, sometimes with caveats.
    One commenter asked how the length of time that a financial 
assurance or bond must remain in place under Sec.  800.18, which could 
be in perpetuity, is consistent with section 509(b) of SMCRA.\597\ That 
section of the Act provides that ``[l]iability under the bond shall be 
for the duration of the surface coal mining and reclamation operation 
and for a period coincident with [the] operator's responsibility for 
revegetation requirements in section 515.'' Section 509(b) establishes 
a minimum liability period for a bond, not a maximum. Section 509(b) 
must be read in conjunction with section 519(c)(3),\598\ which provides 
for ``the release of the remaining portion of the bond, but not before 
the expiration of the period specified for operator responsibility in 
section 515.'' Section 519(c)(3) further specifies that ``no bond shall 
be fully released until all reclamation requirements of this Act are 
fully met.''
---------------------------------------------------------------------------

    \597\ 30 U.S.C. 1259(b).
    \598\ 30 U.S.C. 1269(c)(3).
---------------------------------------------------------------------------

    One commenter noted that ``trust funds generally are [the] 
appropriate mechanism for guaranteeing indefinite and variable 
operation and maintenance expenses and periodic outlays for 
refurbishing or replacing capital equipment or improvements.'' We agree 
with this commenter's assessment because trusts are structured to 
provide the revenue stream needed to fund long-term treatment of 
discharges.
    Another commenter recommended that we use the term ``trust'' in 
place of ``trust fund'' because the trust fund is only one element of a 
trust. We revised the rule as recommended.
    We discuss other comments below in the context of the specific 
provisions to which they apply.
Final Paragraph (a): Applicability
    Proposed paragraph (a)(1) provided that Sec.  800.18 applies 
whenever surface coal mining operations, underground mining activities, 
or other activities or facilities regulated under SMCRA result in a 
discharge to surface water or groundwater that requires treatment and 
that continues or may reasonably be expected to continue after the 
completion of mining, backfilling, grading, and the establishment of 
revegetation. We received no comments specific to proposed paragraph 
(a)(1), which we are adopting as final with a few nonsubstantive 
editorial revisions to improve clarity. Final paragraph (a)(1) provides 
that Sec.  800.18 applies to any discharge resulting from surface coal 
mining operations, underground mining activities, or other activities 
or facilities regulated under SMCRA whenever both the discharge and the 
need to treat the discharge continue or may reasonably be expected to 
continue after the completion of mining, backfilling, grading, and the 
establishment of revegetation. Consistent with proposed paragraph 
(a)(1), final paragraph (a)(1) also provides that the term 
``discharge'' includes both discharges to surface water and discharges 
to groundwater.
    Proposed paragraph (a)(2) provided that Sec.  800.18 also applies 
whenever information available to the regulatory authority documents 
that a discharge of the nature described in paragraph (a)(1) will 
develop in the future, provided that the quantity and quality of the 
future discharge can be determined with reasonable probability. We are 
adopting proposed paragraph (a)(2) as final without change.
    One commenter urged that final Sec.  800.18 include language 
clarifying that it does not authorize approval of a permit application 
for a proposed operation that anticipates creating a discharge for 
which long-term treatment would be required. The commenter expressed 
concern that, otherwise, proposed paragraph (a)(2) could be interpreted 
as allowing approval and issuance of a permit with a predicted 
discharge of this nature. The commenter notes that approval of a permit 
application of this nature would be inconsistent with proposed Sec.  
773.15(n), which prohibits the regulatory authority from approving a 
permit application unless it finds that the proposed operation has been 
designed to prevent discharges requiring long-term treatment.
    We agree with the commenter that a permit applicant may not 
circumvent Sec.  773.15(n) and receive a permit for a site that is 
predicted to develop a discharge requiring long-term treatment by 
posting a financial assurance under Sec.  800.18 to cover treatment 
costs. In response to this concern, we added paragraph (a)(3) to the 
final rule. That paragraph provides that Sec.  800.18 applies only to 
discharges that are not anticipated at the time of permit application 
approval. It further states that nothing in Sec.  800.18 authorizes 
approval of a permit application for a proposed operation that 
anticipates creating a discharge for which long-term treatment would be 
required.
    Finally, we are adding paragraph (a)(4) to the final rule as a 
reminder that, under final Sec.  800.18(g), the regulatory authority 
must require adjustment of the bond amount whenever it becomes aware of 
a situation described in paragraph (a)(1) or (2).
Final Paragraph (b): Type of Financial Instruments Allowed
    Proposed paragraph (b)(1) provided that, except for permits covered 
by an alternative bonding system, the permittee must post a financial 
assurance instrument or a collateral bond to guarantee treatment or 
abatement of postmining discharges. One commenter opposed adoption of 
proposed paragraph (b)(1), alleging that ``[t]he record is devoid of 
any basis for restricting financially sound companies from using the 
entire panoply of financial mechanisms, including self-

[[Page 93248]]

bonding mechanisms consistent with the requirements of Section 509(c) 
of SMCRA.'' \599\ The commenter noted that state and federal bonding 
regulations require that the regulatory authority examine a company's 
finances at the time of permit renewal to ascertain if the company 
continues to qualify to self-bond. The commenter further noted that the 
regulatory authority also can review a company's eligibility to self-
bond at the time of the midterm permit review. Therefore, according to 
the commenter, there is neither a legal basis nor a need for proposed 
paragraph (b)(1).
---------------------------------------------------------------------------

    \599\ 30 U.S.C. 1259(c).
---------------------------------------------------------------------------

    We do not agree with the commenter that periodic review of a 
permittee's eligibility to self-bond provides a satisfactory level of 
assurance that the funds needed for treatment will be available if the 
permittee ceases treatment. The periodic reviews cited by the commenter 
may be too late to ensure that a self-bonded company in rapidly 
deteriorating financial health has either the resources to post the 
required replacement bond or the ability to complete the reclamation 
work itself. Under 30 CFR 800.23(g), a self-bonded permittee must 
notify the regulatory authority whenever it no longer meets self-
bonding eligibility criteria. The permittee then has 90 days to post a 
replacement surety or collateral bond. However, a financially 
distressed company may be unable to obtain replacement bond coverage, 
especially the large sums required to guarantee long-term treatment of 
discharges.
    In addition, the final rule does not allow posting of a self-bond 
to cover long-term treatment of discharges because self-bonds provide 
none of the tangible financial resources afforded by financial 
assurances, collateral bonds, or surety bonds. Financial assurances 
provide the income stream needed to fund treatment. Collateral bonds 
require the deposit of letters of credit, cash accounts, certificates 
of deposit, stocks, bonds, or real property, all of which can be used 
to fund treatment if the permittee fails to do so. Surety bonds provide 
a guarantee of payment of a sum certain from an independent company.
    One regulatory authority requested that we revise the rule to also 
allow the use of surety bonds because it had long done so with success. 
As stated in the preamble to the proposed rule,\600\ we continue to 
believe that surety bonds are not the best means of guaranteeing 
treatment of a postmining discharge because a surety bond is not 
designed to provide the income stream needed to fund ongoing treatment. 
However, based on the assertion of successful usage by the regulatory 
authority for this purpose, we have added surety bonds to the list of 
acceptable instruments for guaranteeing long-term treatment.
---------------------------------------------------------------------------

    \600\ 80 FR 44436, 44533 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Another commenter suggested that we avoid use of the term 
``financial assurance instrument'' because a financial assurance always 
consists of more than one instrument. At a minimum, according to the 
commenter, a financial assurance that relies upon a trust will include 
the indemnity agreement describing the terms of the assurance and the 
trust agreement governing the trust. We agree with the commenter's 
recommendation and rationale and revised proposed paragraph (b)(1) 
accordingly. Final paragraph (b)(1) uses the term ``financial 
assurance'' in place of ``financial assurance instrument.''
    After the revisions discussed above, final paragraph (b)(1) 
provides that, except for discharges covered by alternative bonding 
systems other than financial assurances, the permittee must post a 
financial assurance, a collateral bond, or a surety bond to guarantee 
treatment or abatement of discharges that require long-term treatment. 
We replaced the term ``postmining discharges'' in proposed paragraph 
(b)(1) with ``discharges that require long-term treatment'' to improve 
clarity and to be consistent with the terminology used elsewhere in our 
regulations in this context.
    Proposed paragraph (b)(2) provided that the amount of a collateral 
bond posted to guarantee treatment of a discharge must include the cost 
of treating the discharge during the time required to collect and 
liquidate the bond and convert the proceeds to a financial instrument 
that will generate funds in an amount sufficient to cover future 
treatment costs and associated administrative expenses. We extensively 
revised proposed paragraph (b)(2) in response to comments and 
incorporated it as part of final paragraph (c)(2). The preamble to 
final paragraph (c) discusses the comments received and the revisions 
made.
    Proposed paragraph (b)(3) provided that operations with discharges 
in states with an approved alternative bonding system must comply with 
the requirements of proposed Sec.  800.9(d)(2), which pertains to 
alternative bonding systems other than financial assurances. We 
received no comments specific to proposed paragraph (b)(3). We are 
adopting proposed paragraph (b)(3) in revised form as final paragraph 
(b)(2). We revised this paragraph for consistency with our revisions to 
section 800.9(d). We also added language to clarify that final 
paragraph (b)(2) does not apply to financial assurances, consistent 
with the intent of the proposed rule. Final paragraph (b)(2) provides 
that operations with discharges in states with an alternative bonding 
system (other than a financial assurance) approved under subchapter T 
must comply with the requirements of the applicable alternative bonding 
system.
Proposed Paragraph (c): Discharge Treatment Standards for Cost 
Calculation Purposes
    Proposed paragraph (c) provided that calculation of the amount of 
financial assurance or collateral bond required must include the cost 
of treating the discharge to meet any applicable numerical standards or 
limits that are in effect at the time that the regulatory authority 
issues an order requiring posting of a financial assurance or bond, 
provided that the numerical standards or limits are established in the 
SMCRA permit, a permit or authorization issued under the Clean Water 
Act, or regulations implementing the Clean Water Act. Some commenters 
objected to this provision, alleging that a SMCRA permit cannot 
establish water quality standards or discharge limits. According to the 
commenters, only the U.S. Environmental Protection Agency and states 
with delegated authority under the Clean Water Act have the authority 
to set water quality standards. Nothing in the proposed rule was 
intended to imply that the SMCRA regulatory authority may establish 
water quality standards of the nature specified in the Clean Water Act. 
Upon further evaluation, we determined that proposed paragraph (c) is 
unnecessary. Therefore, the final rule does not include it. The 
regulatory authority will determine when a discharge requires long-term 
treatment, and we will not attempt to define all potential sources of 
treatment requirements in this rule.
    One commenter on proposed paragraph (c) urged us to allow the use 
of cost data from the operation of existing water treatment facilities 
to project likely future costs of long-term treatment of discharges. No 
rule change is needed because nothing in section 800.18 prohibits the 
use of data from existing water treatment facilities to predict future 
treatment costs.
Final Paragraph (c): Calculation of Amount of Financial Assurance or 
Performance Bond
    As discussed above, we did not adopt proposed paragraph (c). 
Instead, final paragraph (c) specifies how to

[[Page 93249]]

determine the amount of financial assurance or performance bond 
required to guarantee long-term treatment of a discharge. Proposed 
paragraph (d) already contained provisions governing calculation of the 
amount of financial assurance required, so final paragraph (c)(1) 
specifies that, if the permittee elects to post a financial assurance, 
the regulatory authority must calculate the amount of financial 
assurance required in the manner provided in final paragraph (d).
    As also discussed above, we are adopting proposed paragraph (b)(2) 
in revised form as final paragraph (c)(2). Final paragraph (c)(2) 
establishes how the regulatory authority must calculate the amount of 
collateral bond or surety bond that a permittee electing that option 
must post. One commenter on proposed paragraph (b)(2) observed that the 
regulatory authority may not have the legal authority under state law 
to convert the bond forfeiture proceeds to a financial instrument that 
will generate funds. According to the commenter, a collateral bond may 
not be an appropriate mechanism for securing long-term treatment 
obligations if the applicable state law requires the regulatory 
authority to deposit bond forfeiture proceeds in an account that earns 
little or no interest. The commenter recommended that we revise 
proposed paragraph (b)(2) to provide that, in determining the amount of 
the collateral bond, the regulatory authority must account for how the 
moneys obtained by collecting and liquidating the bond will be managed.
    We do not agree that a collateral bond may not be an appropriate 
mechanism for guaranteeing long-term treatment obligations. A 
collateral bond does not generate a revenue stream for treatment, but 
that does not matter as long as the permittee continues to treat the 
discharge and the amount of the bond is sufficient to cover future 
treatment costs in the event of forfeiture. Nor do we agree with the 
commenter's recommendation that we revise proposed paragraph (b)(2) to 
provide that, in determining the amount of the collateral bond, the 
regulatory authority must account for how the moneys obtained by 
collecting and liquidating the bond will be managed. Regulatory 
authorities have extensive experience managing bond forfeitures under 
SMCRA and we have no reason to believe that they are not capable of 
managing collateral bonds posted to guarantee long-term treatment of 
discharges.
    Final paragraph (c)(2) requires that the amount of the bond be no 
less than the present value of the funds needed to pay for treatment of 
the discharge in perpetuity, together with related administrative, 
maintenance, renovation, replacement, and land reclamation expenses. In 
response to the commenter's concerns with respect to bond forfeiture 
and the handling of bond forfeiture proceeds, we revised our bond 
forfeiture regulations to clarify that, if the permittee defaults on 
treatment obligations, the regulatory authority must forfeit an amount 
of bond that is no less than the estimated total cost of achieving the 
reclamation plan requirements with respect to the discharge. We also 
revised our bond forfeiture regulations to specify that the regulatory 
authority must calculate the estimated total cost of achieving the 
reclamation plan requirements for long-term treatment of a discharge in 
a manner consistent with final Sec.  800.18(c). See final Sec.  
800.50(a)(1)(ii). In addition, final Sec.  800.50(b)(2) requires that 
the regulatory authority use the funds collected from bond forfeiture 
to complete the reclamation plan, or the portion of the reclamation 
plan covered by the bond, on the permit area or increment to which the 
bond applies. To further address the commenter's concerns, we replaced 
the phrase ``complete the reclamation plan, or portion thereof,'' in 
previous Sec.  800.50(b)(2) with ``complete the reclamation plan, or 
the portion thereof covered by the bond,'' to clarify that the 
regulatory authority may not choose to ignore any element of the 
reclamation plan that is covered by the bond.
    The commenter also recommended that we revise the provisions 
governing use of collateral bonds to guarantee long-term treatment to 
include provisions similar to those that apply to financial assurances 
under proposed paragraph (d). Most provisions of proposed and final 
paragraph (d) are specific to financial assurances and, thus, are not 
suitable for collateral bonds. However, we agree that certain 
provisions of proposed and final paragraph (d) that govern calculation 
of the amount of financial assurance that the permittee must post are 
transferable to determinations of the amount of collateral or surety 
bond that the permittee must post to ensure future treatment. (As 
previously discussed, in response to a different comment, we are adding 
surety bonds to the list of acceptable financial instruments to 
guarantee long-term treatment of discharges.)
    Proposed paragraph (b)(2) envisioned that, after forfeiting a 
collateral bond, the regulatory authority would ``convert the proceeds 
to a financial instrument that will generate funds in an amount 
sufficient to cover future treatment costs and associated 
administrative expenses.'' As the commenter pointed out, state law may 
not allow this conversion, which means that the premise in the proposed 
rule for calculation of the bond amount is not correct. Even in those 
cases where state law may allow conversion of bond forfeiture proceeds 
into a financial instrument equivalent to a financial assurance, 
proposed paragraph (b)(2) did not specify how the regulatory authority 
must calculate the amount of bond that the permittee must post to be 
``sufficient to cover future treatment costs and associated 
administrative expenses.'' We agree with the commenter that the method 
of calculation should be consistent with the method prescribed for 
financial assurances to ensure that the amount posted will be adequate 
to fully fund future treatment needs and associated costs.
    In response to this comment, final paragraph (c)(2) establishes 
criteria for calculation of the amount of collateral bond or surety 
bond required. It provides that, if the permittee elects to post a 
collateral bond or surety bond, the bond amount must be no less than 
the present value of the funds needed to pay for--
    (i) Treatment of the discharge in perpetuity, unless the permittee 
demonstrates, and the regulatory authority finds, based upon available 
evidence, that treatment will be needed for a lesser time, either 
because the discharge will attenuate or because its quality will 
improve. This paragraph corresponds to the first sentence of final 
paragraph (d)(1)(i) for financial assurances.
    (ii) Treatment of the discharge during the time required to forfeit 
and collect the bond. This paragraph corresponds to and replaces 
proposed paragraph (b)(2).
    (iii) Maintenance, renovation, and replacement of treatment and 
support facilities as needed. This paragraph corresponds to final 
paragraph (d)(1)(ii) for financial assurances.
    (iv) Final reclamation of sites upon which treatment facilities are 
located and areas used in support of those facilities. This paragraph 
corresponds to final paragraph (d)(1)(iii) for financial assurances.
    (v) Administrative costs borne by the regulatory authority. This 
paragraph corresponds to final paragraph (d)(1)(iv) for financial 
assurances.
    The present value requirement reflects the fact that, unlike 
financial assurances, collateral and surety bonds do not provide an 
income stream to offset future treatment costs, nor do they

[[Page 93250]]

accrue interest or other earnings that are available to the regulatory 
authority, so the initial bond amount posted must be adequate to fund 
all future costs related to long-term treatment of discharges, which is 
why the rule requires the present value of those expenses as opposed to 
the net present value.
Final Paragraph (d): Requirements for Financial Assurances
    For the reasons discussed below and in the preamble to the proposed 
rule, we are adopting proposed paragraph (d)(1)(i) as final with minor 
editorial revisions, the most significant of which replaces ``permit'' 
with ``permit or permit increment'' in recognition of the fact that 
permits may be bonded in increments, in which case the provisions of 
this paragraph apply only to the bond for the permit increment.
    Proposed paragraph (d)(1)(i) provided that the trust fund or 
annuity must be established in a manner that guarantees that sufficient 
moneys will be available when needed to pay for treatment of discharges 
in perpetuity, unless the permittee demonstrates, and the regulatory 
authority finds, based upon available evidence, that treatment will be 
needed for a lesser time, either because the discharge will attenuate 
or because its quality will improve. A number of commenters opposed 
proposed paragraph (d)(1)(i) on the basis that there is insufficient 
evidence to justify an assumption that discharges will require 
treatment in perpetuity. We disagree. The preamble discussion of this 
issue in the proposed rule \601\ explains that the prediction of future 
discharge quality is an imprecise science. This lack of precision and 
the variability in discharge quality, together with the potentially 
serious environmental impacts of toxic mine drainage on water quality 
and aquatic life, justify use of a worst-case scenario when 
establishing financial assurance requirements to ensure that adequate 
funds are available.
---------------------------------------------------------------------------

    \601\ 80 FR 44436, 44532 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Some commenters misinterpreted the studies cited in the preamble to 
proposed paragraph (d)(1)(i). Those studies found that discharge 
quality improves over time for surface mines and below-drainage 
underground mines--and even for some above-drainage underground mines. 
According to the commenters, those studies demonstrate that the need 
for discharge treatment has an endpoint. However, the studies do not 
support the commenters' conclusion. While discharge quality improved, 
it did not necessarily improve to the point that the discharge no 
longer required treatment.
    One commenter objected to the provision in proposed paragraph 
(d)(1)(i) that placed the burden on the permittee to demonstrate that a 
discharge will not continue to require treatment in perpetuity. The 
commenter asserted that the rule should establish the nature and level 
of proof needed to make that demonstration. We are not aware of any 
methodology that can reliably predict a precise endpoint for treatment 
of a particular discharge. Furthermore, section 510(a) of SMCRA \602\ 
provides that the permit applicant ``shall have the burden of 
establishing that his application is in compliance with all the 
requirements of the applicable State or Federal program.'' In addition, 
including prescriptive provisions of the nature recommended by the 
commenter might be counterproductive in that they could prevent 
permittees from taking advantage of innovative technological and 
scientific advances.
---------------------------------------------------------------------------

    \602\ 30 U.S.C. 1260(a).
---------------------------------------------------------------------------

    The commenter also asserted that paragraph (d)(1)(i) should 
expressly state that software packages such as AMD Treat and data from 
existing water treatment facilities can be used to calculate total 
treatment costs over time. We see no need to include this statement in 
the rule. Nothing in the final rule precludes use of either data from 
existing treatment facilities or the AMD Treat software. However, the 
software inputs and assumptions must be consistent with the 
requirements of this final rule. As another commenter noted, the AMD 
Treat software uses a default value of 75 years for the life of the 
trust. That default value is inconsistent with this rule, which 
requires a default value of perpetuity in the absence of a 
demonstration that a shorter treatment period will be sufficient. We 
agree with the commenter's observation that spreadsheets can be created 
that rely upon the same formula as the AMD Treat software, but that 
replace the 75-year default value when performing the recapitalization 
cost present value calculations with an assumption that the treatment 
period will be of infinite duration.
    Proposed paragraph (d)(1)(i) also provided that the regulatory 
authority may accept arrangements that allow the permittee to build the 
amount of the trust fund or annuity over time, provided that the 
permittee continues to treat the discharge during that time and the 
regulatory authority retains performance bonds posted for the permit 
until the trust fund or annuity reaches a self-sustaining level as 
determined by the regulatory authority. One commenter alleged that this 
provision of proposed paragraph (d)(1)(i) implies that the regulatory 
authority may withhold the release of a surety bond for the permit 
until a trust or annuity is fully funded. According to the commenter, 
this action represents a fundamental misunderstanding of surety law 
because it requires the surety to guarantee the permittee's financial 
performance, which effectively converts the surety bond to a financial 
guarantee. The commenter is concerned that this requirement will result 
in a great deal of difficulty in obtaining surety bonds. The commenter 
also alleged that the provision runs afoul of Sec. Sec.  800.13 and 
800.14, which, according to the commenter, provide that separate bonds 
may be written not only for ecological restoration, but for any other 
specific matter that a surety does not wish to cover.
    Final paragraph (d)(1)(i)(B) expressly requires that the regulatory 
authority retain all performance bonds posted for the permit or permit 
increment until the trust or annuity reaches a self-sustaining level as 
determined by the regulatory authority. This provision is a logical 
implementation of section 509(a) of SMCRA,\603\ which requires that the 
performance bond be conditioned upon ``faithful performance of all the 
requirements of this Act and the permit.'' Part IX.K.1. of the preamble 
to the proposed rule contains an extensive explanation of why long-term 
treatment of discharges is a requirement of SMCRA. See 80 FR 44436, 
44532-44534 (Jul. 27, 2015). We acknowledge that the rule may decrease 
the willingness of the surety industry to underwrite performance bonds 
for the coal mining industry, but both SMCRA and the regulations 
authorize other types of bonds, such as collateral bonds. We reject the 
commenter's assertion that Sec.  800.18(d) runs afoul of Sec. Sec.  
800.13 and 800.14, as well as the commenter's allegation that 
Sec. Sec.  800.13 and 800.14 authorize separate bonds for any specific 
reclamation obligation that the surety does not wish to cover. The 
comment implies that the surety can unilaterally decide that its bond 
does not cover certain obligations under the permit, which has never 
been the case under any version of our regulations. The regulatory 
authority may, but is not required to, accept a bond that covers only 
certain reclamation obligations under the permit, provided that a 
different bond covers the other

[[Page 93251]]

reclamation obligations. Final Sec.  800.20 specifies that surety bonds 
are non-cancellable during their terms.
---------------------------------------------------------------------------

    \603\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    One commenter recommended that we add the following sentence after 
the first sentence of proposed paragraph (d)(1)(i): ``If the regulatory 
authority does not find that treatment will be needed for a lesser 
time, all calculations of the dollar amount of the financial assurance, 
or any component of that overall amount, must be based on an infinite 
treatment period.'' We find that the revision recommended by the 
commenter is unnecessary because, as proposed, paragraph (d)(1)(i) of 
the final rule provides that the regulatory authority must calculate 
the amount needed for the trust or annuity using an assumption that the 
discharge will require treatment in perpetuity, unless the permittee 
can demonstrate otherwise.
    Proposed paragraph (d)(1)(ii) provided that the trust or annuity 
must be established in a manner that guarantees that sufficient moneys 
will be available when needed to pay for maintenance, renovation, and 
replacement of treatment and support facilities as needed. We are 
adopting proposed paragraph (d)(1)(ii) as final without change.
    One commenter asserted that we should revise proposed paragraph 
(d)(1)(ii) to require that the financial assurance include a component 
to account for unpredicted events, including possible catastrophic 
failure of the treatment system or components of it, because the 
assumption of a zero risk of premature system failure is unreasonably 
rosy. According to the commenter, treatment systems, even passive ones, 
fail more often than we would hope, sometimes catastrophically, and 
sometimes far earlier than the predicted life cycle of the failed 
components. The commenter suggested that, in calculating the amount of 
financial assurance or bond required, the regulatory authority must 
account for not only predicted events but also the risks posed by 
unpredicted events, including premature failure of the treatment system 
or its components. According to the commenter, the regulatory authority 
may not rely on the permittee to provide additional funding over the 
long term because there is no guarantee that the permittee will be in 
existence for the long term.
    We are aware of no realistic means of predicting the cost of 
unpredicted and unpredictable events. Therefore, we are not revising 
our rules in the manner sought by the commenter. Nothing in section 509 
of SMCRA requires that the bond amount include a component for 
unpredicted events. Instead, section 509(e) of SMCRA and its 
implementing regulations at 30 CFR 800.15 require that the regulatory 
authority adjust the bond whenever the cost of future reclamation 
changes. Section 800.18(f) of the final rule includes similar 
requirements for financial assurances. Furthermore, final paragraph 
(f)(1) requires that the regulatory authority conduct an annual review 
of the adequacy of the trust or annuity and the assumptions upon which 
the trust or annuity is based. Final paragraph (f)(2) specifies that 
the regulatory authority must require that the permittee provide 
additional resources to the trust or annuity whenever the review 
conducted under paragraph (f)(1) or any other information available to 
the regulatory authority at any time demonstrates that the financial 
assurance is no longer adequate to meet the purpose for which it was 
established. The combination of these two requirements should be 
sufficient to address the commenter's concerns in most cases.
    Proposed paragraph (d)(1)(iii) provided that the trust or annuity 
must be established in a manner that guarantees that sufficient moneys 
will be available when needed to pay for final reclamation of the sites 
upon which treatment facilities are located and areas used in support 
of those facilities. We received no comments specific to proposed 
paragraph (d)(1)(iii), which we are adopting it as final without 
change.
    Proposed paragraph (d)(1)(iv) provided that the trust or annuity 
must be established in a manner that guarantees that sufficient moneys 
will be available when needed to pay for administrative costs borne by 
the regulatory authority or trustee to implement paragraphs (d)(1)(i) 
through (iii). We received no comments specific to proposed paragraph 
(d)(1)(iv), which we are adopting it as final without change.
    Proposed paragraph (d)(2) provided that the regulatory authority 
must specify the investment objectives of the trust or annuity. One 
commenter asserted that a financial assurance that is not backstopped 
by some other form of treatment guarantee must demonstrate that it will 
be self-sustaining forever to provide a solid guarantee of treatment in 
perpetuity. The commenter alleged that increasing the risk level of the 
financial assurance's investment portfolio decreases the likelihood 
that the financial assurance will be self-sustaining forever. 
Therefore, according to the commenter, we must revise proposed 
paragraph (d)(2) to expressly require that a financial assurance hold a 
conservative, low-risk investment portfolio.
    The commenter noted that proposed paragraph (d)(2) did not define 
``investment objectives.'' According to the commenter, preceding 
provisions of proposed Sec.  800.18(d) establish that the primary 
objective of the trust or annuity is to guarantee treatment of the 
discharge for as long as necessary, presumptively in perpetuity. 
Therefore, the commenter reasoned, any subsidiary objectives must serve 
that primary objective and the composition of the investment portfolio 
likewise must reflect the primary objective.
    The commenter provided additional explanation, which we paraphrase 
as follows: Risk tolerance is at its lowest when a trust provides the 
only source of funding for an essential product or service. For 
example, a trust established to provide funding for a regular course of 
treatment like kidney dialysis in a setting where there is no secondary 
mechanism (e.g., health insurance or a charitable hospital) that will 
provide the treatment if the trust comes up short would have an 
extremely low tolerance for risk. Three factors make mine drainage 
treatment trusts or annuities especially intolerant of risk. First, the 
liabilities they cover are both continuous and perpetual. As in the 
kidney dialysis example, even temporary interruptions are unacceptable, 
but the difference is that for the mine drainage trusts, the 
``patient'' is assumed to live and need treatment forever. Second, they 
must supply a firm guarantee; i.e., sufficient treatment funds must be 
immediately available whenever needed. Third, they must be self-
sustaining because the permittees that establish them will not be 
around forever. By its nature, a guarantee is supposed to eliminate or 
minimize risk, not invite it. Accepting significant risk of 
underperformance or failure in exchange for higher potential returns on 
investment may be a reasonable decision in some circumstances, but not 
when the assets must provide a guarantee, and especially not when the 
guarantee is for a perpetual obligation. Greater risk in the investment 
portfolio also would be acceptable where there is some secondary 
financial guarantee immediately available to shield the public from the 
risk. However, the proposed rule would allow the permittee to establish 
a financial assurance as the lone guarantee of long-term treatment. As 
a result, according to the commenter, the risk tolerance of the 
financial assurance is extremely low.
    The commenter asserted that proposed paragraphs (d)(2) and (3)

[[Page 93252]]

would allow the regulatory authority to specify that a trust invest 
exclusively in high-risk securities (e.g., junk bonds), as long as it 
assigned a conservative anticipated rate of return to that high-risk 
portfolio. The commenter argued that no matter how conservative the 
predicted rate of return, the high-risk nature of the portfolio would 
be inappropriate for a financial assurance required to provide a solid 
guarantee of uninterrupted, perpetual treatment. The commenter 
recommended that we revise proposed paragraph (d)(2) to provide that 
the regulatory authority must require that the investment portfolio 
held by the financial assurance prudently account for (i) the expected 
duration of the treatment obligation; (ii) the need to provide a 
guarantee of uninterrupted treatment; and (iii) whether any other 
financial guarantee covers the treatment obligation. As an alternative, 
the commenter suggested that we revise proposed paragraph (d)(2) to 
provide that the regulatory authority must require that the investment 
portfolio held by the financial assurance prudently account for the 
risk tolerance of the trust fund or annuity. The commenter further 
asserted that under both alternatives, the final paragraph (d)(2) must 
specify that, if the financial assurance will provide the only 
financial guarantee of treatment, the regulatory authority must require 
that the financial assurance hold a low-risk investment portfolio.
    We concur with the commenter that proposed paragraph (d)(2) is in 
need of revision for the reasons set forth in the comments submitted, 
as summarized above. After evaluating the two alternatives that the 
commenter provided, we determined that the first alternative provides 
more guidance and is less subjective and easier to understand than the 
second alternative. Therefore, as the commenter recommended, final 
paragraph (d)(2) provides that the regulatory authority must require 
that the investment portfolio held by the financial assurance prudently 
account for (i) the expected duration of the treatment obligation; (ii) 
the need to provide a guarantee of uninterrupted treatment; and (iii) 
whether any other financial guarantee covers the treatment obligation.
    We also revised proposed paragraph (d)(2) to eliminate the 
reference to ``investment objectives.'' As the commenter noted, there 
is only one primary objective, which is to guarantee treatment of the 
discharge in perpetuity or for as long as treatment is necessary, as 
paragraph (d)(1) requires. Instead of simply requiring that the 
regulatory authority specify the objectives of the trust or annuity, as 
in proposed paragraph (d)(2), final paragraph (d)(2) establishes 
criteria for the composition of the investment portfolio to ensure 
attainment of that objective, as the commenter recommended. 
Specifically, final paragraph (d)(2) provides that the regulatory 
authority must require that the investment portfolio held by the trust 
or annuity prudently account for the expected duration of the treatment 
obligation, the need to provide a guarantee of uninterrupted treatment, 
and whether any other financial guarantee covers a portion of the 
treatment obligation. As the commenter recommended under either 
alternative, final paragraph (d)(2) also provides that, if the 
financial assurance will provide the only financial guarantee of 
treatment, the regulatory authority must require that the trust or 
annuity hold a low-risk investment portfolio.
    Proposed paragraph (d)(3) provided that, in structuring the trust 
or annuity, the regulatory authority and the permittee must base 
calculations on a conservative anticipated rate of return on the 
proposed investments that is consistent with long-term historical rates 
of return for similar investments. One commenter expressed concern that 
the proposed rule did not address how the proposed investments would be 
proposed, reviewed, and approved.
    We do not intend for these rules to be overly prescriptive. The 
regulatory authority may establish additional procedural requirements 
if it desires to do so, but we do not find that level of detail 
necessary or appropriate for this rule. Final paragraph (d)(2) 
establishes the three basic factors that the regulatory authority must 
consider in reviewing the investment portfolio of the trust fund or 
annuity; that requirement should be sufficient for purposes of this 
rule.
    The commenter recommended that we revise proposed paragraph (d)(3) 
to expressly require that determination of the amount that the 
permittee must post for a trust fund or annuity be based on present 
value calculations. Present value calculations account for inflation, 
which means that they are based on real rather than nominal rates of 
return. According to the commenter, present value calculations also 
must account for any fees paid to the trustee or manager. The commenter 
notes that proposed Sec.  800.18 does not specifically mention 
inflation or management fees and that proposed paragraph (d)(3) does 
not specify whether the anticipated rate of return to which it refers 
is real (reflecting adjustments for inflation) or nominal, net 
(reflecting a reduction for management fees) or gross. The commenter 
asserted that final paragraph (d)(3) must require that the calculation 
of the amount of the trust fund or annuity include adjustments for 
inflation and management fees; i.e., the anticipated rate of return 
must be both real and net of management fees.
    We agree with the commenter. Section 509(a) of SMCRA provides that 
the amount of a performance bond must be sufficient to assure the 
completion of the reclamation plan if the regulatory authority has to 
perform the work in the event of forfeiture. The revisions that the 
commenter recommends are necessary to ensure that sufficient funds will 
be available. Under section 509(c) of SMCRA, an alternative bonding 
system, which includes a financial assurance, must achieve the 
objectives and purposes of the bonding of the bonding program, of which 
the provision of section 509(a) described above is one. Therefore, 
final paragraph (d)(3) provides that, in determining the required 
amount of the trust or annuity, the regulatory authority must base 
present value calculations on a conservative anticipated real rate of 
return on the proposed investments. Final paragraph (d)(3) also 
specifies that the rate of return must be net of management or trustee 
fees.
    The commenter also opposed the provision of proposed paragraph 
(d)(3) that would require that the anticipated rate of return used in 
calculating the amount of a financial assurance be ``consistent with 
long-term historical rates of return for similar investments.'' The 
commenter observed that historical rates of return are not necessarily 
predictive of future rates of return, which means that the only rates 
of return that matter are those that the investment portfolio will earn 
in the future. Therefore, the commenter argued, the rule should require 
use of the best objective forecast of future long-term rates of return 
on a given class of assets, even if that forecast is significantly 
below the historical average rate of return. The commenter suggested 
that we either delete all mention of historical rates of return from 
paragraph (d)(3) or require that the regulatory authority afford 
``whatever consideration is appropriate'' to historical rates of 
return. We concur with the commenter's arguments against the proposed 
requirement that the anticipated rate of return be consistent with 
historical long-term rates of return. Final paragraph (d)(3) does not 
include that provision.
    A commenter expressed concern about how regulatory authorities will 
determine whether a trust or annuity is fully funded when the trust 
includes

[[Page 93253]]

assets with contingent value; e.g., coal reserves that can be converted 
to cash only if there is a willing purchaser or lessee. The commenter 
cited an example in which more than $3 million of a $7 million trust 
consisted of coal reserves pledged to the trust, but for which a 
purchaser or lessee never materialized, leaving the trust severely 
under-funded. Based on this example, the commenter asserted that final 
Sec.  800.18(d) must ensure that the dollar value assigned to the 
assets held by a trust or annuity is properly discounted for any 
contingency. The commenter recommended that final Sec.  800.18 include 
a provision that financial assurances may only hold assets that are 
immediately marketable and readily converted into cash. Alternatively, 
according to the commenter, final Sec.  800.18 could specify that a 
financial assurance that holds assets that are not immediately 
marketable or readily convertible into cash may not be considered fully 
funded until those asserts are converted into either cash or assets 
that are immediately marketable and readily converted into cash (i.e., 
until the contingency on their valuation is removed). Finally, the 
commenter suggested that final section 800.18(d) could include a 
provision similar to Sec.  800.21(e)(1) governing collateral bonds. 
That provision draws a distinction between the bond value and the 
market value of the posted collateral, with the former taking into 
account the ``legal and liquidation fees, as well as value 
depreciation, marketability, and fluctuations that might affect the net 
cash available to the regulatory authority to complete reclamation.''
    We agree with the commenter that real estate, including coal 
reserves, is an inappropriate element of a trust or annuity unless that 
real estate is of an income-producing nature. However, we see no need 
to adopt any of the rule changes that the commenter recommends. The 
investment portfolio criteria that we adopted as part of final Sec.  
800.18(d)(2) and the requirement in final Sec.  800.18(d)(3) that the 
required amount of the trust fund or annuity be based upon present 
value calculations using a conservative anticipated real rate of return 
for investments should preclude a recurrence of the example cited by 
the commenter.
    Proposed paragraph (d)(4) provided that the trust or annuity must 
be in a form approved by the regulatory authority and contain all terms 
and conditions required by the regulatory authority. One commenter 
requested that we clarify in the final rule how the trust will hold 
personal and real property associated with long-term treatment 
facilities because it will be difficult if not impossible for the 
trustee to ensure the continuation of treatment operations when the 
permittee ceases treatment if the trustee is not provided rights to the 
personal and real property involved. The commenter explained that it 
had encountered the need to transfer ownership of treatment facilities 
and equipment to the trustee so that if the permittee ceases to treat 
water at the site, the trustee can take possession of the personal 
property needed to continue the treatment operations. The commenter 
noted that it had seen state regulatory authorities require that 
permittees transfer treatment equipment to the trustee to hold in the 
event the trustee needs to take over water treatment. In the 
commenter's experience, a bill of sale of the treatment equipment to 
the trustee with a license back to the operator for use in water 
treatment operations worked successfully. The commenter recommended 
that we revise the final rule to provide a mechanism whereby the 
regulatory authority can require the permittee to grant the trustee the 
real and personal property rights necessary to continue water treatment 
in the event the permittee goes out of business or ceases water 
treatment for other reasons.
    We agree with the commenter for the reasons set forth in the 
comment. Final paragraph (d)(4)(ii) provides that, when appropriate, 
the terms and conditions of the financial assurance must include a 
mechanism whereby the regulatory authority may require the permittee to 
grant the trustee the real and personal property rights necessary to 
continue treatment in the event that the permittee ceases treatment. 
These rights include, but are not limited to, access to and use of the 
treatment site and ownership of treatment facilities and equipment.
    Proposed paragraph (d)(5) provided that the trust or annuity must 
irrevocably establish the regulatory authority as the beneficiary of 
the trust or of the proceeds from the annuity for the purpose of 
treating mine drainage or other mining-related discharges to protect 
the environment and users of surface water. We received no comments 
specific to proposed paragraph (d)(5), which we are adopting as final 
paragraph (d)(5) with minor editorial revisions.
    Proposed paragraph (d)(6) specified that the trust or annuity must 
provide that disbursement of money from the trust or annuity may be 
made only upon written authorization from the regulatory authority or 
according to a schedule established in the agreement accompanying the 
trust or annuity. We received no comments specific to proposed 
paragraph (d)(6), which we are adopting as final paragraph (d)(6) with 
minor editorial revisions.
    Proposed paragraph (d)(7) provided that a financial institution or 
company serving as a trustee or issuing an annuity must be a national 
bank chartered by the Office of the Comptroller of the Currency, an 
operating subsidiary of a national bank chartered by the Office of the 
Comptroller of the Currency, a bank or trust company chartered by the 
state in which the operation is located, an insurance company licensed 
or authorized to do business in the state in which the operation is 
located or designated by the pertinent regulatory body of that state as 
an eligible surplus lines insurer, or any other financial institution 
or company with trust powers and with offices located in the state in 
which the operation is located. With the exception discussed below, we 
are adopting proposed paragraph (d)(7) as part of the final rule.
    One commenter opposed the mandate in proposed paragraph (d)(7)(v) 
that the financial institution or company be required to have an office 
located in the state in which the operation is located. According to 
the commenter, this provision is arbitrary, capricious, and an 
unconstitutional restraint on interstate commerce. The commenter also 
alleged that this provision would be an unwise policy choice because 
not every state that has long-term water treatment issues will have 
sufficient mine discharge problems for a company to justify the 
establishment of a physical office in that state. The commenter further 
alleged that the requirement for an office located in the state does 
not appear to be reasonably related to the goal of proposed paragraph 
(d)(7), which is to ensure that only competent and reliable companies 
are allowed to be trustees. According to the commenter, adoption of 
proposed paragraph (d)(7)(v) would run counter to this goal because it 
would likely to make it more difficult for competent and reliable 
companies that do not happen to have a physical office in a state to 
serve as a trustee. The commenter suggested that we revise proposed 
paragraph (d)(7)(v) by replacing the requirement for an office located 
in the state with a requirement that the company be authorized to do 
business in the state, have trust powers satisfactory to the regulatory 
authority, and be examined or regulated by a state or federal agency. 
We agree with the commenter's arguments and suggested revisions. Final 
paragraph (d)(7)(v)

[[Page 93254]]

incorporates all of the commenter's recommendations.
    The commenter further recommended that the final rule clarify that 
the SMCRA regulatory authority may function as a ``state or federal 
agency'' under paragraph (d)(7)(v), which provides that the trustee 
must be a financial institution or company whose ``activities are 
examined or regulated by a state or federal agency.'' The commenter 
noted that the SMCRA regulatory authority provides the primary 
regulatory oversight in every state in which the commenter has 
established long-term treatment trusts. We decline to adopt this 
recommendation because final paragraph (d)(7)(v) applies to financial 
institutions and companies, which the SMCRA regulatory authority has 
neither the expertise nor the authority to oversee or regulate. 
However, adoption of this rule will not necessarily interfere with the 
commenter's operations because the commenter is a not-for-profit 
organization, which means that it is not subject to final paragraph 
(d)(7). Instead, it must meet the criteria for not-for-profit 
organizations under final paragraph (d)(8).
    The commenter requested that the final rule clarify that a long-
term treatment trust can consist of both a trustee and a separate 
custodian of the financial assets in the trust. According to the 
commenter, this approach works well for long-term treatment trusts 
because it provides an extra level of protection and separation between 
the purely financial aspects of the trust and management of the other 
aspects of trusts. We have no objection to this arrangement, but no 
rule change is necessary because nothing in the final rule prohibits 
this arrangement.
    One commenter noted that adoption of proposed paragraph (d)(7) 
would prevent a not-for-profit organization from serving as a trustee, 
even though, at present, at least one such organization is successfully 
operating as a trustee for discharge treatment trusts. In response, we 
have added paragraph (d)(8), which provides that the regulatory 
authority may allow a not-for-profit organization under section 
501(c)(3) of the Internal Revenue Code to serve as a trustee if the 
organization maintains appropriate professional liability insurance 
coverage and if the regulatory authority determines that the 
organization has demonstrated the financial and technical capability to 
manage trust funds and assume day-to-day operation of the trust and 
treatment facility in the event of a default.
    Final paragraph (d)(9) is the counterpart to proposed paragraph 
(e)(4). A commenter recommended deletion of proposed paragraph (e)(4), 
which provided that the regulatory authority could terminate a trust or 
annuity upon a determination that the trustee's administration of the 
trust or annuity is unsatisfactory to the regulatory authority. 
According to the commenter, state law and trust instruments can make 
provision for changing trustees if trust performance is an issue. The 
commenter explained that termination of the trust may have unintended 
results, such as triggering disposition of the trust assets outside the 
trust, which means that they would no longer be available to cover 
treatment costs. The commenter further explained that trust instruments 
used by regulatory authorities have provisions for continuing the trust 
while obtaining a new trustee. Finally, the commenter noted that 
paragraph (e)(4) does not belong in paragraph (e) because paragraph 
(e)(4) pertains to replacement of the trustee, while paragraph (e) 
pertains to termination of the trust.
    We concur with the commenter that proposed paragraph (e)(4) was 
improperly located, but we do not agree that the provision itself 
should be deleted entirely. We find merit in retaining a provision that 
requires replacement of the trustee when the regulatory authority 
determines that the trustee's performance is unsatisfactory. Therefore, 
while we are not adopting proposed paragraph (e)(4), we are adopting a 
similar provision as final paragraph (d)(9). Final paragraph (d)(9) 
provides that the permittee or the regulatory authority must procure a 
new trustee when the trustee's administration of the trust fund or 
annuity is unsatisfactory to the regulatory authority.
Final Paragraph (e): Termination of a Financial Assurance Instrument
    Proposed paragraph (e) provided that termination of a trust or 
annuity may have occurred only upon the demise of the trustee or the 
company issuing the annuity or as specified by the regulatory authority 
upon a determination that one of the four situations described in 
paragraphs (e)(1) through (4) exists. Those situations are: (1) No 
further treatment or other reclamation measures are necessary; (2) a 
satisfactory replacement financial assurance or bond has been posted in 
accordance with paragraph (g); (3) the terms of the trust or annuity 
establish conditions for termination and those conditions have been 
met; and (4) the trustee's administration of the trust or annuity is 
unsatisfactory to the regulatory authority, in which case the permittee 
or the regulatory authority must procure a new trustee.
    One commenter recommended that we delete the phrase ``demise of the 
trustee or the company issuing the annuity'' in the introductory text 
of proposed paragraph (e) because state law and trust instruments 
address substitution of trustees in the event of the demise of a 
trustee and that, thus, there is no need for the rule to address this 
situation. The commenter explained that, in her experience, a clause 
terminating the trust upon the demise of the trustee likely would 
create problems for the regulatory authority because it would terminate 
the authority of the regulatory authority to keep the assets of the 
trust within the trust, which means that the regulatory authority would 
lose the income-generating advantages of the trust. The commenter 
stated that a trust is intended to be as close to a perpetual 
instrument as is possible under current law. Therefore, according to 
the commenter, termination should be limited to situations in which 
there is no longer any need for the trust. The commenter explained that 
the trust instruments should cover all other situations. The commenter 
also asserted that, with respect to annuities, a regulatory authority 
may run the risk of compromising a claim against the liquidating 
underwriter of an annuity if the regulatory authority terminates that 
annuity.
    Based on the information and explanation provided by the commenter, 
we did not include the phrase ``demise of the trustee or the company 
issuing the annuity'' in the introductory text of final paragraph (e). 
As previously discussed in the preamble to final paragraph (d)(9), we 
also are not adopting proposed paragraph (e)(4) because it concerns 
termination of the trustee rather than the trust. We are adopting 
paragraphs (e)(1) through (3) as proposed because termination of a 
trust or annuity under those circumstances is appropriate and will not 
have any adverse impacts. Final paragraph (e)(1) allows termination 
when no further treatment or other reclamation measures are necessary. 
Final paragraph (e)(2) allows termination when a satisfactory 
replacement financial assurance or bond has been posted. And final 
paragraph (e)(3) allows termination when the terms of the trust fund or 
annuity establish conditions for termination and those conditions have 
been met.
Final Paragraph (f): Regulatory Authority Review and Adjustment of 
Amount of Financial Assurance
    Proposed paragraph (f)(1) provided that the regulatory authority 
must

[[Page 93255]]

establish a schedule for reviewing the performance of the trustee, the 
adequacy of the trust or annuity, and the accuracy of the assumptions 
upon which the trust or annuity is based. The proposed rule specified 
that this review must occur on at least an annual basis. Proposed 
paragraph (f)(2) provided that the regulatory authority must require 
that the permittee provide additional resources to the trust or annuity 
whenever the review conducted under paragraph (f)(1) or any other 
information available to the regulatory authority at any time 
demonstrates that the financial assurance is no longer adequate to meet 
the purpose for which it was established. We received no comments 
specific to proposed paragraphs (f)(1) and (2), which we are adopting 
in final form as proposed, with minor editorial revisions.
Final Paragraph (g): Replacement of Financial Assurance
    Proposed paragraph (g) provided that a financial assurance may be 
replaced in accordance with the provisions of Sec.  800.30(a), with the 
approval of the regulatory authority. We received no comments specific 
to this paragraph, which we are adopting in final form as proposed.
Final Paragraph (h): Release of Liability
    Proposed paragraph (h) provided that release of reclamation 
liabilities and obligations under financial assurances is subject to 
the applicable bond release provisions of Sec. Sec.  800.40 through 
800.44. We received no comments specific to this paragraph, which we 
are adopting in final form as proposed.
Final Paragraph (i): Effect of Financial Assurance on Release of Bond
    Proposed paragraph (i) provided that the permittee may apply for, 
and the regulatory authority may approve, release of any bonds posted 
for the permit or permit increment for which the regulatory authority 
has approved a financial assurance under this section, provided that 
the permittee and the regulatory authority comply with the bond release 
requirements and procedures in Sec. Sec.  800.40 through 800.44. The 
proposed rule specified that this provision applies only if the 
financial assurance is both in place and fully funded; the permit or 
permit increment fully meets all applicable reclamation requirements, 
with the exception of the discharge and the presence of associated 
treatment and support facilities; and the financial assurance will 
serve as the bond for reclamation of the portion of the permit area 
required for postmining water treatment facilities and access to those 
facilities. We received no comments specific to this paragraph, which 
we are adopting in final form as proposed, with minor editorial 
revisions.
Section 800.20: What additional requirements apply to surety bonds?
    Section 800.20 implements and fleshes out section 509(b) of 
SMCRA,\604\ which specifies that ``[t]he bond shall be executed by the 
operator and a corporate surety licensed to do business in the State 
where such operation is located.'' Proposed paragraph (a) provided that 
a surety bond must be executed by the permittee and a corporate surety 
licensed to do business in the state where the operation is located. We 
received no comments specific to this paragraph, which we are adopting 
in final form as proposed.
---------------------------------------------------------------------------

    \604\ 30 U.S.C 1259(b).
---------------------------------------------------------------------------

    Proposed paragraph (b) provided that surety bonds must be 
noncancellable during their terms, except that surety bond coverage for 
undisturbed lands may be cancelled with the prior consent of the 
regulatory authority. The proposed rule further provided that, within 
30 days after receipt of a notice to cancel bond, the regulatory 
authority will advise the surety whether the bond may be cancelled on 
an undisturbed area. We received no comments specific to this 
paragraph, which we are adopting in final form as proposed, with minor 
editorial revisions. Final paragraph (c) consists of proposed Sec.  
800.30(a)(2) in revised form. We are adopting proposed Sec.  
800.30(a)(2) as part of final Sec.  800.20 rather than as part of final 
Sec.  800.30 because it pertains to sureties and, therefore, should 
apply to all surety bonds, regardless of whether they are proffered as 
replacement bonds. Proposed Sec.  800.30(a)(2) provided that the 
regulatory authority may decline to accept a proposed replacement 
surety bond if, in the judgment of the regulatory authority, the new 
surety does not have adequate reinsurance or other resources sufficient 
to cover the default of one or more mining companies for which the 
surety has provided bond coverage. A few commenters expressed concern 
about the lack of criteria that the regulatory authority could use in 
determining whether to reject a surety. Another commenter found this 
provision problematic because regulatory authorities generally lack the 
expertise to review reinsurance contracts. According to the commenter, 
if a state department of insurance has licensed a surety to conduct 
business, that license should suffice and the regulatory authority 
should accept the surety bond.
    In response to these comments, final Sec.  800.20(c) no longer 
contains any mention of the adequacy of reinsurance. Our decision not 
to adopt this proposed provision should not be interpreted as a 
prohibition on regulatory authorities conducting an analysis of the 
adequacy of reinsurance if they have the ability to do so. We have 
instead revised the proposed rule to focus on our primary intent, which 
was to emphasize that the regulatory authority has the discretion to 
establish limits on its exposure to a single surety or the default of 
one or more companies bonded by a single surety.
    Final Sec.  800.20(c) provides that the regulatory authority may 
decline to accept a surety bond if, in the judgment of the regulatory 
authority, the surety does not have resources sufficient to cover the 
default of one or more mining companies for which the surety has 
provided bond coverage. This provision is completely discretionary and 
the criteria that the regulatory authority would use in deciding 
whether to accept a surety bond also are totally at the regulatory 
authority's discretion.
Section 800.21: What additional requirements apply to collateral bonds?
    Proposed Sec.  800.21 set forth the requirements that apply to 
various types of collateral that may be posted as a performance bond. 
Except as discussed below, we received no comments on proposed Sec.  
800.21. We are adopting proposed Sec.  800.21 in final form as 
proposed, with minor editorial revisions, unless otherwise noted below.
    The second sentence of proposed paragraph (b)(2) provided that the 
regulatory authority must forfeit and collect on a letter of credit 
used as security in areas requiring continuous bond coverage if the 
permittee has not replaced the letter with another letter of credit or 
other suitable bond at least 30 days before the letter's expiration 
date. According to a commenter with experience in the use of letters of 
credit as a collateral bond, forfeiture is not necessary because the 
regulatory authority can draw upon the letter and use the cash received 
to assure continuous bond coverage without forfeiting the bond. In 
response to this comment, we revised the second sentence of proposed 
paragraph (b)(2) and redesignated it as paragraph (b)(4) in the final 
rule. Final paragraph (b)(4) provides that, if the permittee has not 
replaced a letter of credit with another letter of credit or other 
suitable bond at least 30 days before the letter's expiration date, the 
regulatory authority

[[Page 93256]]

must draw upon the letter of credit and use the cash received as a 
replacement bond.
    One commenter urged us to revise proposed paragraph (c) to clarify 
that, in determining the bond value of real property, the regulatory 
authority need not accept either the fair market value or the value 
placed on the property by the mining company, in keeping with previous 
preamble discussions that accord discretion to regulatory authorities 
in evaluating real estate posted as a collateral bond. The commenter 
noted that regulatory authorities have experienced great difficulty in 
collecting the bond value if a mining company defaults on a collateral 
bond guaranteed by real estate. She cited two instances in which the 
liquidation of real estate collateral yielded less than half of the 
bond value of the collateral. The commenter further explained that the 
administrative costs of liquidating real estate are high and frequently 
are accompanied by unanticipated costs such as unpaid taxes, 
maintenance issues, and the need to maintain insurance on the property. 
The commenter pointed out that appraisal principles recognize that 
forced sales will ordinarily not elicit a fair market value for real 
property because fair market value assumes both a willing buyer and a 
willing seller who are not under time constraints. Forced sales do not 
meet those conditions. Therefore, according to the commenter, the 
regulatory authority must discount the value of real estate posted as a 
collateral bond to account for administrative costs, property 
maintenance and insurance costs, and the potential adverse implications 
of a forced sale. Otherwise, the regulatory authority will not receive 
the funds necessary to complete reclamation under conditions of 
forfeiture.
    To improve the probability that the regulatory authority will 
realize the bond value of real property under conditions of forfeiture, 
we revised proposed paragraph (c) to provide more specific safeguards 
when the permittee posts real property as a collateral bond. The 
revisions flesh out final paragraph (e)(1), which provides that the 
bond value of collateral is not the same as the market value and which 
requires that the bond value reflect legal and liquidation fees, as 
well as value depreciation, marketability, and fluctuations that might 
affect the net cash available to the regulatory authority to complete 
reclamation. Final paragraph (c)(4) details the meaning of final 
paragraph (e)(1) in the context of real property.
    Specifically, final paragraph (c)(4) provides that the appraised 
fair market value of real estate, as determined under final paragraph 
(c)(2)(ii), is not the bond value of the real estate. Under final 
paragraph (c)(4), the regulatory authority must calculate the bond 
value of real estate by discounting the appraised fair market value to 
account for the administrative costs of liquidating real estate, the 
probability of a forced sale in the event of forfeiture, and a 
contingency reserve for unanticipated costs including, but not limited 
to, unpaid real estate taxes, liens, property maintenance expenses, and 
insurance premiums.
    We also revised proposed paragraph (e)(1) in response to comments. 
Proposed paragraph (e)(1) required that a collateral bond be subject to 
a margin expressed as a ratio of bond value to market value. One 
commenter observed that this margin is not a ratio, but rather a 
premium or additional amount required to cover the costs to liquidate 
the collateral. The commenter requested that we eliminate the reference 
to a margin to improve accuracy and adherence to plain language 
principles. The final rule implements the commenter's recommendation. 
Final paragraph (e)(1) provides that the bond value (rather than the 
margin) of the collateral must reflect legal and liquidation fees, as 
well as value depreciation, marketability, and fluctuations that might 
affect the net cash available to the regulatory authority to complete 
reclamation.
Section 800.23: What additional requirements apply to self-bonds?
    Under section 509 of SMCRA, a regulatory authority may accept the 
self-bond of an applicant, where the applicant demonstrates, among 
other things, a history of financial solvency and continuous operation 
sufficient for authorization to self-insure (self-bond).\605\ The 
implementing federal regulations at 30 CFR 800.23 establish financial 
and other criteria for self-bonding as well as other requirements 
pertinent to self-bonding. Eighteen state regulatory programs allow 
self-bonding.
---------------------------------------------------------------------------

    \605\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    We proposed only one substantive revision to previous Sec.  
800.23--a revision of paragraph (b)(3)(i) to allow the use of any 
nationally recognized statistical rating organization registered with 
the Securities and Exchange Commission in determining eligibility to 
self-bond, rather than limiting acceptable rating agencies to Moody's 
Investor Service and Standard and Poor's. We received no comments in 
opposition to this proposed change, so we are adopting proposed Sec.  
800.23 as part of the final rule.
    One commenter stated that there is a pressing need to reform the 
self-bonding rules more comprehensively, particularly in light of the 
dramatic decline of the western coal industry's financial stability and 
inadequacy of self-bonds in a time of major coal company bankruptcies. 
However, the commenter acknowledged that comprehensive changes to Sec.  
800.23 are beyond the scope of the present rulemaking. Another 
commenter urged us to revise Sec.  800.23 to provide that no part of a 
corporation may qualify for a self-bond if any part of that 
corporation, including any subsidiary, does not meet the self-bonding 
eligibility requirements. As discussed below, we intend to address the 
issues raised by these commenters as part of a separate rulemaking 
because the proposed stream protection rule did not include or seek 
comment on changes of the nature that the commenters request.
    As discussed in the final RIA and EIS, the energy industry is in 
the midst of a major transformation. Low domestic and global demand for 
coal, plentiful low-cost shale gas, the strong U.S. dollar, utility 
decisions to switch power plants from coal to natural gas, and coal 
power plant retirements by utilities have created significant 
challenges for the coal industry. Since the proposed stream protection 
rule was published in July 2015, several large coal companies with 
approximately $2.4 billion in self-bonds filed for bankruptcy 
protection.
    On March 3, 2016, WildEarth Guardians filed a petition for 
rulemaking under 30 CFR 700.12 requesting that we amend our self-
bonding regulations at 30 CFR 800.23 to ensure that companies with a 
history of financial insolvency, and their subsidiary companies, are no 
longer eligible to self-bond.\606\ In its petition, WildEarth Guardians 
requested that we define ``ultimate parent corporation,'' specify that 
the total amount of existing and proposed self-bonds may not exceed 25 
percent of the ultimate parent corporation's tangible net worth in the 
United States, require that both the self-bonding applicant and its 
parent corporation be eligible to self-bond, and prohibit self-bonding 
if either the applicant or its parent corporation filed for bankruptcy 
within the 5 years preceding the application to self-bond.
---------------------------------------------------------------------------

    \606\ See 81 FR 31880-31881 (May 20, 2016).
---------------------------------------------------------------------------

    On September 7, 2016, we published a notice in the Federal Register 
granting the petition for rulemaking.\607\ The

[[Page 93257]]

notice stated that we do not intend to propose the specific rule 
changes identified in the petition because those changes did not 
address important issues such as the process for evaluating 
applications for self-bonds, monitoring the financial health of self-
bonded entities, and providing a mechanism for replacing self-bonds 
with other types of financial assurances if the need arises. With 
respect to self-bonding, the notice provided that we anticipate 
reviewing the definitions in Sec.  800.23(a) and the financial tests 
and documentation required under Sec.  800.23(b) to ensure that the 
self-bond applicant is financially stable. The notice committed us to 
consider developing a systematic review process for ascertaining 
whether self-bonded entities remain financially healthy and for 
spotting any adverse trends that might necessitate replacing a self-
bond with a different type of financial assurance. We also will 
consider if we need to provide an independent third party review of the 
self-bonding entity's annual financial reports and certification of the 
current and future financial ability of the self-bonding entity. We may 
propose additional procedures for replacing self-bonds in the event 
that a company no longer meets the financial tests and to clarify the 
penalties for an entity's failure to disclose a change in financial 
status. In addition, the notice stated that we are examining broader 
regulatory changes to part 800 to update our bonding regulations and 
ensure the completion of the reclamation plan if the regulatory 
authority has to perform the work in the event of forfeiture.
---------------------------------------------------------------------------

    \607\ 81 FR 61612-61615 (Sept. 7, 2016).
---------------------------------------------------------------------------

    Final Sec.  800.4(d) clarifies that regulatory authorities are 
under no obligation to include the self-bond option in their regulatory 
programs in the first instance. In addition, on August 5, 2016, the 
Director of OSMRE issued a policy advisory on self-bonding. The 
advisory states that ''regulatory authorities have discretion about 
whether to accept self-bonding,'' even if an applicant or permittee 
meets applicable eligibility criteria. According to the advisory, 
``each regulatory authority should exercise its discretion and not 
accept new or additional self-bonds for any permit until coal 
production and consumption market conditions reach equilibrium, events 
which are not likely to occur until at least 2021.'' Consistent with 
that guidance, we encourage regulatory authorities to robustly evaluate 
the financial condition of self-bonded companies and parent or third-
party guarantors on a regular basis and require replacement of self-
bonds with surety or collateral bonds whenever a self-bonded entity no 
longer meets the financial or other criteria for self-bonding.
Section 800.30: When may I replace a performance bond or financial 
assurance and when must I do so?
    Proposed paragraph (a) of this section contains requirements 
pertaining to replacement of performance bonds and financial assurances 
at the request of the permittee, while proposed paragraph (b) contains 
requirements pertaining to replacement of performance bonds and 
financial assurances by order of the regulatory authority. The preamble 
to proposed Sec.   800.30 contains a discussion of how proposed 
Sec. Sec.  800.30 differed from the previous rules.\608\ Proposed 
paragraph (a) used the term ``financial assurance instruments.'' 
However, a commenter pointed out that it would be more accurate to 
refer to financial assurances, rather than to financial assurance 
instruments. We revised paragraph (a) in the manner that the commenter 
recommended because this paragraph concerns replacement of the entire 
financial assurance, not just one of the instruments associated with 
that assurance.
---------------------------------------------------------------------------

    \608\ 80 FR 44539 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Proposed paragraph (a)(1) provided that the regulatory authority 
may allow the permittee to replace existing performance bonds and 
financial assurance instruments with other performance bonds and 
financial assurance instruments that provide equivalent coverage. We 
received no comments specific to this paragraph, which we are adopting 
as proposed, with the exception that final paragraph (a)(1) refers to 
``financial assurances'' rather than ``financial assurance 
instruments'' for the reason discussed above.
    Proposed paragraph (a)(2) provided that the regulatory authority 
may decline to accept a proposed replacement surety bond if, in the 
judgment of the regulatory authority, the new surety does not have 
adequate reinsurance or other resources sufficient to cover the default 
of one or more mining companies for which the surety has provided bond 
coverage. In this final rule, we moved proposed paragraph (a)(2) to 
final section 800.20(c) because there is no reason to limit its 
applicability to replacement bonds. The preamble to final Sec.  
800.20(c) discusses the comments that we received on proposed Sec.  
800.30(a)(2).
    Proposed paragraph (a)(3) provided that the regulatory authority 
may not release any existing performance bond or financial assurance 
instrument until the permittee submits, and the regulatory authority 
approves, an acceptable replacement. We received no comments specific 
to proposed paragraph (a)(3), which we are adopting without change as 
final paragraph (a)(2), with the exception that final paragraph (a)(2) 
refers to a ``financial assurance'' rather than a ``financial assurance 
instrument'' for the reason discussed above.
    Proposed paragraph (b) pertains to replacement of bonds by order of 
the regulatory authority. We received no comments specific to this 
paragraph. We are adopting paragraphs (b)(1) and (2) as proposed, with 
the exception that we revised proposed paragraph (b)(2) to clarify that 
the notification under Sec.  800.16(e) to which that paragraph refers 
means a notification from a bank, surety, or other responsible 
financial entity. We also revised proposed paragraph (b)(3) as 
discussed below.
    Proposed paragraph (b)(3) would have provided that, if the 
permittee does not post replacement bond or financial assurance 
coverage within the time established in an order issued under paragraph 
(b)(2), the regulatory authority must issue a notice of violation to 
the permittee requiring that the permittee post replacement bond or 
financial assurance coverage. Proposed paragraph (b)(3) also would have 
required that the notice of violation order a cessation of coal 
extraction and initiation of reclamation activities under Sec. Sec.  
816.132 or 817.132 if the permittee was actively conducting surface 
coal mining operations. However, upon further review, we realized that 
the proposed rule did not properly convey our intent, which was to 
require immediate cessation of all surface coal mining operations, not 
just coal extraction, followed by either posting of replacement bond or 
permanent reclamation of the site under Sec. Sec.  816.132 or 817.132. 
We did not intend to require that the permittee both post a replacement 
bond or financial assurance and permanently reclaim the site. 
Therefore, we are not adopting the rule as proposed. Instead, final 
paragraph (b)(3) provides that, if the permittee does not post adequate 
bond or financial assurance by the end of the time allowed under final 
paragraph (b)(2), the regulatory authority must issue a notice of 
violation requiring that the permittee cease surface coal mining 
operations immediately. The notice of violation also must require that 
the permittee either post adequate bond or financial assurance coverage 
before resuming surface coal mining operations or reclaim the site in 
accordance with the provisions of Sec. Sec.  816.132 or 817.132.

[[Page 93258]]

Section 800.40: How do I apply for release of all or part of a 
performance bond?
    Proposed Sec.  800.40 corresponds to previous Sec.   800.40(a). We 
are adopting Sec.   800.40 as proposed, with the exception of minor 
editorial changes and the revisions discussed below.
    Proposed paragraph (b)(1) required that the bond release 
application include the application form and information required by 
the regulatory authority. Final paragraph (b)(1) retains the 
requirement for an application form, but it further specifies that the 
application must be made on a form prescribed by the regulatory 
authority, consistent with other regulations. Specifically, final Sec.  
800.12(a) requires that the regulatory authority prescribe the form of 
the performance bond and final Sec.  777.11(a)(3) requires that a 
permit application be filed in the format prescribed by the regulatory 
authority. We are extending this principle to applications for bond 
release.
    Final paragraph (b)(2) is a combination of the part of proposed 
paragraph (b)(1) that required submittal of ``information required by 
the regulatory authority'' and the portion of proposed paragraph 
(b)(2)(vi) that requires a description of the results that the 
permittee has achieved under the approved reclamation plan and an 
analysis of the results of the monitoring of groundwater, surface 
water, and the biological condition of streams conducted under 
Sec. Sec.  816.35 through 816.37 or Sec. Sec.  817.35 through 817.37. 
In the proposed rule, the latter requirement appeared in paragraph 
(b)(2)(vi) as one of the elements of the newspaper advertisement. 
However, after evaluating the comments that we received, we determined 
that material of this nature is more appropriately considered to be 
part of the application than part of the newspaper advertisement.
    In the final rule, we are adopting proposed paragraph (b)(2) as 
final paragraph (b)(3) because we divided proposed paragraph (b)(1) 
into final paragraphs (b)(1) and (2). The introductory text of proposed 
paragraph (b)(2) required that the application include a certified copy 
of an advertisement published at least once a week for four successive 
weeks in a newspaper of general circulation in the locality of the 
surface coal mining operation. The introductory text also provided that 
the permittee must submit the copy of the newspaper ad within 30 days 
after filing the application with the regulatory authority. The 
introductory text of final paragraph (b)(3) is nearly identical to the 
introductory text of proposed paragraph (b)(2), with two exceptions. In 
the first sentence, we replaced the term ``surface coal mining 
operation'' with ``surface coal mining and reclamation operation'' to 
reflect the fact that the site for which the application is filed is in 
reclamation and is no longer an active surface coal mining operation. 
In the second sentence, we replaced ``application'' with ``application 
form'' because final paragraph (b)(1) refers to the application form 
and because the application contains materials other than the form, 
including the copy of the advertisement required by final paragraph 
(b)(3), which does not need to be filed at the same time as the 
application form.
    Proposed paragraphs (b)(2)(i) through (vii) required that the 
newspaper advertisement include the name of the permittee; the permit 
number and approval date; the number of acres and precise location of 
the land for which bond release is being requested; the type and amount 
of the bond filed and the portion for which release is being sought; 
the type and dates of reclamation work performed; a description of the 
results that the permittee achieved under the approved reclamation plan 
and an analysis of the results of the monitoring of groundwater, 
surface water, and the biological condition of streams conducted under 
Sec. Sec.  816.35 through 816.37 or Sec. Sec.  817.35 through 817.37; 
and the name and address of the regulatory authority. A few commenters 
suggested that the content requirements for the newspaper advertisement 
are excessive and ill-suited for a notice of that nature. According to 
the commenters, we should instead require that the advertisement refer 
readers to the location where the bond release application may be 
reviewed in detail. We acknowledge the merit of the comment, but, in 
general, we cannot adopt the recommendation because section 519(a) of 
SMCRA \609\ specifically requires that the advertisement contain most 
of the elements listed in proposed paragraph (b)(2).
---------------------------------------------------------------------------

    \609\ 30 U.S.C. 1269(a).
---------------------------------------------------------------------------

    One exception is proposed paragraph (b)(2)(iv), which provided 
that, among the items that the permittee must include in an 
advertisement published in a local newspaper announcing submission of a 
bond release application was the type and amount of the bond filed and 
the portion for which release is sought. However, section 519(a) of 
SMCRA \610\ requires only ``the amount of the bond filed and the 
portion sought to be released.'' We find that inclusion of the type of 
bond in the public notice would serve no useful purpose because the 
notice concerns an application for bond release, not an application for 
bond replacement. Therefore, final paragraph (b)(3)(iv) does not 
require that the notice include the type of bond.
---------------------------------------------------------------------------

    \610\ 30 U.S.C. 1269(a).
---------------------------------------------------------------------------

    Another exception is proposed paragraph (b)(2)(vi),which required 
that the public notice contain a description of the results achieved 
under the approved reclamation plan, including an analysis of the 
results of the monitoring conducted under Sec. Sec.  816.35 through 
816.37 or Sec. Sec.  817.35 through 817.37. Several commenters opposed 
this proposed requirement, noting the expense of publishing what could 
be a very lengthy notice. One commenter asserted that publishing 
monitoring results might be beyond the capacity of local newspapers. 
Another commenter observed that the proposed rule did not specify how 
detailed this analysis should be or who determines what constitutes a 
sufficient analysis. The commenter recommended that we revise the 
notice requirement to simply refer readers to the regulatory authority 
for more information on the analyses. Another commenter urged deletion 
of proposed paragraph (b)(2)(vi) because the information required by 
that paragraph is inappropriate and unnecessary for a public notice. 
The commenter recommended that we move this provision to be a separate 
element of the bond release application. According to the commenter, 
this level of analysis is more appropriate for an application than for 
a public notice.
    In response to these comments, we moved most of proposed paragraph 
(b)(2)(vi) to become part of the bond release application requirements 
of final paragraph (b)(2), with the level of detail to be determined by 
the regulatory authority. However, section 519(a) of SMCRA specifically 
requires that the public notice include ``a description of the results 
achieved as they relate to the operator's approved reclamation plan.'' 
Therefore, final paragraph (b)(3)(vi) retains a requirement that the 
public notice include a brief description of the results achieved under 
the approved reclamation plan. One commenter expressed concern that a 
resource issue may exist if the regulatory authority is responsible for 
determining the detail required for the analysis of monitoring results 
that the permittee must include in the bond release application. We do 
not agree. The regulatory authority can establish standard guidelines 
that all bond release applicants must follow. There is no need for a 
separate

[[Page 93259]]

determination of the analytical detail required for each application.
    As discussed above, we agree that the information required by 
proposed paragraph (b)(2)(vi) is more appropriate for inclusion in the 
bond release application than in a public notice published in a 
newspaper. However, persons reading the notice should have sufficient 
contact information for the regulatory authority to enable them to 
readily make arrangements to review the application. To ensure that the 
reader has the information needed to make those arrangements, final 
paragraph (b)(3)(vii) includes a requirement that the public notice 
identify the location at which the application may be reviewed.
Section 800.41: How will the regulatory authority process my 
application for bond release?
    Proposed Sec.  800.41 corresponds to previous Sec.  800.40(b)(1). 
We are adopting Sec.  800.41 as proposed, with minor editorial changes 
to improve clarity. Specifically, we combined proposed paragraphs 
(a)(1) and (2) into final paragraph (a)(1) and redesignated proposed 
paragraph (a)(3) as final paragraph (a)(2). We received no comments on 
this section.
Section 800.42: What are the criteria for bond release?
    Proposed Sec.  800.42 corresponds to previous Sec.  800.40(c). We 
have revised the proposed rule to improve clarity, to conform to other 
rule changes, and, as discussed below, in response to comments.
    Some commenters opposed the proposed changes to our bond release 
criteria, especially those pertaining to restoring streams, alleging 
that the changes would create a vague and uncertain timeline for 
achievement of reclamation, which, in effect, would extend the bonding 
period, increase the regulatory and financial burden on permittees, 
decrease the availability of surety bonds, and delay return of full use 
of the reclaimed land to the landowner. We acknowledge that restoring 
the ecological function of perennial and intermittent streams as 
required by the final rule may take longer than the revegetation 
responsibility period and, thus, may result in a delay in final bond 
release for some time after the demonstration of revegetation success 
under Sec.  816.116 or 817.116.\611\ However, section 509(a) of SMCRA 
\612\ requires that the bond amount be sufficient to assure completion 
of the reclamation plan approved in the permit. Stream restoration is 
part of that plan. Furthermore, permittees that avoid mining through 
perennial and intermittent streams should not experience these adverse 
impacts.
---------------------------------------------------------------------------

    \611\ Karl Williard et al., Stream-restoration--long term 
performance: A reassessment. Final report for the Office of Surface 
Mining Cooperative Agreement S11AC20024 AS.
    \612\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    Many commenters opposed proposed paragraph (a)(2), which provided 
that the regulatory authority may not release any bond if, after an 
evaluation of the groundwater, surface water, and biological condition 
monitoring data submitted under Sec. Sec.  816.35 through 816.37 or 
Sec. Sec.  817.35 through 817.37, it determines that adverse trends 
exist that may result in material damage to the hydrologic balance 
outside the permit area. In general, commenters found the ``adverse 
trends'' standard in this paragraph to be too vague and undefined. They 
expressed concern that permittees would not be able to obtain timely 
bond release if this provision is adopted. One commenter alleged that 
this provision would give regulatory authorities unwarranted authority 
to halt the bond release process, with the practical result being that 
permittees would not be able to secure surety bonds because of the 
uncertainty involved with a subjective determination of whether adverse 
trends exist. The commenter noted that some companies are having 
increasing difficulty securing reclamation bonds because of bonding 
capacity limits. One regulatory authority noted that, to be defensible, 
regulatory authority decisions must be based upon known conditions 
rather than something that might happen. The commenter recommended 
deletion of this proposed requirement, or, in the alternative, 
replacement of the ``adverse trends'' standard with a statistically 
significant degradation standard based upon monitoring data.
    Section 519(b) of SMCRA requires that, as part of the evaluation of 
each bond release application, the regulatory authority consider, among 
other things, whether ``pollution of surface and subsurface water is 
occurring, the probability of continuance of future occurrence of such 
pollution, and the estimated cost of abating such pollution.'' The 
analysis of monitoring results that proposed paragraph (b)(2) required 
is a logical extension of this statutory provision. Similarly, except 
as discussed below, the prohibition in proposed paragraph (b)(2) on the 
release of bond when the regulatory authority determines, based on a 
trend analysis of monitoring data, that adverse trends exist that may 
result in material damage to the hydrologic balance outside the permit 
area is a rational extension of section 510(b)(3) of SMCRA,\613\ which 
prohibits the approval of a permit application unless the applicant 
demonstrates and the regulatory authority finds that the proposed 
operation had been designed to prevent material damage to the 
hydrologic balance outside the permit area. Release of any bond for an 
operation that is likely to result in material damage to the hydrologic 
balance outside the permit area in the future, would be irresponsible 
because the amount of bond remaining may be insufficient to remedy the 
problem when it ultimately occurs.
---------------------------------------------------------------------------

    \613\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    In response to the comments that we received, we revised proposed 
paragraph (a)(2) to remove the provision prohibiting bond release if 
the regulatory authority determines that ``adverse trends exist that 
may result in material damage to the hydrologic balance outside the 
permit area.'' We agree that ``may result'' is too subjective. Final 
paragraph (a)(2)(i) requires that the regulatory authority conduct a 
scientifically defensible trend analysis of the groundwater, surface 
water, and biological condition monitoring data submitted under 
Sec. Sec.  816.35 through 816.37 or Sec. Sec.  817.35 through 817.37 
before releasing any bond amount. Each regulatory authority will 
determine what type of trend analysis is scientifically defensible. 
Final paragraph (a)(2)(ii) provides that the regulatory authority may 
not approve a bond release application if the analysis conducted under 
final paragraph (a)(2)(i) and other relevant information indicate that 
the operation is causing material damage to the hydrologic balance 
outside the permit area or is likely to do so in the future. We did not 
adopt the statistically significant degradation standard recommended by 
one commenter because we are not clear as to how such a standard would 
operate.
    Proposed paragraph (a)(3) prohibited the release of any portion of 
the bond unless and until the permittee posts a financial assurance or 
collateral bond if a discharge requiring long-term treatment exists 
either on the permit area or at a point that is hydrologically 
connected to the permit area. One commenter opposed proposed paragraph 
(a)(3) based on a belief that surety bonds are not responsible for 
long-term treatment of discharges. The commenter characterized proposed 
paragraph (a)(3) as implying that the regulatory authority may forfeit 
a surety

[[Page 93260]]

bond to fund the long-term treatment obligations.
    The principle that any type of bond may be forfeited to obtain the 
funds needed for long-term treatment of discharges has long been 
official OSMRE policy. See the discussion in the preamble to proposed 
paragraph (a)(3) at 80 FR 44540 (Jul. 27, 2015). The commenter also 
alleged that proposed paragraph (a)(3) conflicted with proposed Sec.   
800.12(d), which provides that the regulatory authority may only accept 
a financial assurance or collateral bond to guarantee treatment of a 
long-term discharge. Final section 800.12(c), which corresponds to 
proposed Sec.   800.12(d), allows the use of surety bonds to guarantee 
long-term treatment of discharges. However, even in the absence of the 
revision, no conflict exists. Proposed Sec.   800.12(d) and its 
successor, final section 800.12(c), apply to bonds specifically posted 
for long-term treatment after discovery of an unanticipated discharge, 
while Sec.  800.42(a)(3) applies to the bond posted at the time of 
permit issuance or for a successive permit increment, at which time no 
discharges in need of long-term treatment would have been known or 
anticipated. However, if an unanticipated discharge requiring long-term 
treatment develops after permit issuance, the performance bond posted 
at the time of permit issuance or for a successive permit increment 
must cover all reclamation obligations, including long-term treatment 
of unanticipated discharges, unless and until the permittee posts a 
financial assurance, collateral bond, or surety bond to guarantee 
discharge treatment under final Sec.  800.18.
    Another commenter argued that proposed Sec.  800.42(a)(3) 
improperly prohibited any bond release if the permittee incurs a long-
term discharge treatment obligation. According to the commenter, this 
absolute prohibition fails to recognize the possibility that more than 
sufficient bond may be in place on a large mine site with a minimal 
impact discharge that requires long-term treatment. Final paragraph 
(a)(3) includes a provision that takes this possibility into account. 
Final paragraph (a)(3) also applies only to discharges for which the 
permittee is responsible. While not our intent, proposed paragraph 
(a)(3) applied to all discharges in need of long-term treatment, 
regardless of whether the permittee is responsible for the quality of 
the discharge. Final paragraph (a)(3) provides that a permittee 
responsible for a discharge that requires long-term treatment, 
regardless of whether the discharge emerges either on the permit area 
or at a point that is hydrologically connected to the permit area, must 
post a separate financial assurance or collateral or surety bond under 
final Sec.  800.18 before any portion of the existing performance bond 
for the permit area may be released, unless the type and amount of bond 
remaining after the release would be adequate to meet the requirements 
of section 800.18 as well as any remaining land reclamation 
obligations. We added the reference to the type of bond remaining after 
the release because final Sec.  800.18 does not allow the use of a 
self-bond to guarantee long-term treatment of a discharge. Therefore, 
if the type of bond remaining after the release is a self-bond, final 
paragraph (a)(3) requires that the permittee replace the self-bond with 
a financial assurance, collateral bond, or surety bond to provide 
coverage for long-term treatment.
    Proposed paragraph (a)(4) provided that, if the permit area or 
increment includes a steep-slope variance from restoration of the 
approximate original contour under Sec.  785.16, the portion of the 
performance bond described in Sec.  785.16(a)(13) may not be released 
in whole or in part until the approved postmining land use is 
implemented or until the site is restored to the approximate original 
contour and revegetated. However, we did not adopt Sec.  785.16(a)(13) 
as proposed. Instead, final Sec.  785.16(b)(2) requires that the permit 
include a condition prohibiting the release of any part of the bond 
posted for the permit until substantial implementation of the approved 
postmining land use is underway. The rule specifies that the condition 
must provide that the prohibition does not apply to any portion of the 
bond that is in excess of an amount equal to the cost of regrading the 
site to its approximate original contour and revegetating the regraded 
land in the event that the approved postmining land use is not 
implemented. Therefore, we did not adopt the language that we proposed 
in Sec.  800.42(a)(4) as part of the final rule.
    Instead, final Sec.  800.42(a)(4) provides that, if the permit area 
or increment includes mountaintop removal mining operations under Sec.  
785.14 or a variance from restoration of the approximate original 
contour under section 785.16, the amount of bond that may be released 
is subject to the limitation specified in Sec.  785.14(c)(2) for 
mountaintop removal mining operations or the limitation specified in 
Sec.  785.16(b)(2) for a variance from restoration of the approximate 
original contour. We inadvertently omitted a reference to Sec.  785.14 
in proposed Sec.  800.42(a)(4), an omission that the final rule 
corrects. Final Sec.  800.42(a)(4) includes a reference to Sec.  
785.14(c)(2) because final Sec. Sec.  785.14(c)(2) (mountaintop removal 
mining operations) and 785.16(b)(2) (steep slope variances) contain 
identical restrictions on bond release, which should be reflected in 
final Sec.  800.42 for consistency. The rationale for applying final 
Sec.  800.42(a)(4) to mountaintop removal mining operations is the same 
as the rationale provided in the preamble to the proposed rule for 
applying that provision to steep-slope variances. See 80 FR 44540 (Jul. 
27, 2015). The only difference is that the statutory basis for applying 
paragraph (a)(4) to mountaintop removal mining operations is section 
515(c)(5) of SMCRA,\614\ which is substantively identical to the steep-
slope variance provisions in section 515(e)(5) of SMCRA.\615\
---------------------------------------------------------------------------

    \614\ 30 U.S.C. 1265(c)(5).
    \615\ 30 U.S.C. 1265(e)(5).
---------------------------------------------------------------------------

    One commenter observed that proposed paragraph (a)(4) would be 
especially onerous because reestablishing approximate original contour 
on a site that was prepared for a postmining land use that requires a 
different surface configuration would be extremely expensive, much more 
so than restoration of approximate original contour in the normal 
course of contemporaneous reclamation. We acknowledge that the cost of 
restoring a site to approximate original contour after it was 
originally graded to a different configuration may be high. However, 
one of SMCRA's fundamental principles is to ensure restoration of the 
approximate original contour, with limited exceptions.\616\ Therefore, 
we find that final paragraph (a)(4) provides an appropriate safeguard 
against abuse of the exceptions that SMCRA establishes to facilitate 
certain postmining land uses. Final paragraph (a)(4) should ensure that 
permittees propose mountaintop removal mining operations and steep-
slope variances only in those situations in which attainment of the 
underlying postmining land use is certain, rather than speculative.
---------------------------------------------------------------------------

    \616\ See 30 U.S.C. 1265(b)(3).
---------------------------------------------------------------------------

    One commenter suggested that we revise proposed paragraph (a)(4) to 
allow bond release as soon as implementation of the postmining land use 
begins. The proposed rule required full implementation of the 
postmining land use as a precondition to bond release. We agree with 
the commenter that this approach is too stringent. At the same time, 
however, we conclude that the approach the commenter recommended is too 
vague and subject

[[Page 93261]]

to abuse. Under such a standard, the regulatory authority could allow 
bond release after only minimal implementation of the postmining land 
use, such as posting of a sign announcing a future industrial park, 
which may or may not come to pass. Instead, final paragraph (a)(4) 
takes a middle ground. Specifically, we replaced the phrase ``until the 
approved postmining land use is implemented'' in proposed paragraph 
(a)(4) with ``until substantial implementation of the postmining land 
use is underway'' in final paragraph (a)(4). Thus, the final rule 
requires that substantial implementation be underway before the 
regulatory authority may approve any bond release for mountaintop 
removal mining operations under Sec.  785.14 or a site with a variance 
from restoration of the approximate original contour under Sec.  
785.16.
    Proposed Sec.  800.42(a)(5) provides that the bond amount described 
in Sec.  780.24(d)(2) or Sec.  784.24(d)(2) may not be released either 
until the structure is in use as part of the postmining land use or 
until the structure is removed and the site upon which it was located 
is reclaimed in accordance with part 816 or part 817. Sections 
780.24(d)(2) and 784.24(d)(2) require that the bond posted for a permit 
include an amount sufficient to cover the cost of removing mining-
related structures (other than roads and impoundments) and reclaiming 
the land upon which the structures were located to a condition capable 
of supporting the premining uses, even when the regulatory authority 
has approved retention of the structure as part of the postmining land 
use. Otherwise, the risk is too great that the structure will never be 
used for the postmining land use, that it will deteriorate and become 
an attractive nuisance, and that no funds will be available for 
demolition and removal, as we explain the preamble to the proposed 
rule. See 80 FR 44540 (Jul. 27, 2015).
    One commenter argued that the final rule must provide additional 
flexibility for unique property use situations; e.g., situations in 
which the property owner, sub-lessee, or authorized postmining land 
user may only be partially using a structure after mine closure as part 
of the approved postmining land use. According to the commenter, the 
authorized postmining land user may not have sufficient funding to 
proceed with complete implementation of the postmining land use before 
final bond release or implementation of the postmining land use may no 
longer be economically feasible. Several commenters alleged that the 
proposed rule could unfairly penalize the permittee for changing 
economic conditions beyond its control. Another commenter opposed this 
provision as a possible violation of landowner rights.
    We did not revise proposed paragraph (a)(5) in response to these 
comments because final paragraph (a)(5) does not prohibit bond release 
in situations in which the structure is only partially in use by the 
time the remainder of the site is ready for final bond release. Partial 
use signifies a reasonable probability of future full utilization. We 
do not agree with the commenter that we should allow retention of the 
structure if the structure remains unused for financial or economic 
reasons. Those are prime examples of situations in which structures 
should not be retained because there is no reasonable certainty of 
future use. We also do not agree with the comment that final paragraph 
(a)(5) would violate landowner rights. The structure was built for 
mining purposes by the mining company. Therefore, the mining company is 
in a position to structure any agreements with the landowner concerning 
future use in a manner that takes the requirements of this rule into 
account.
    Proposed paragraph (b) contained the criteria for Phase I bond 
release. One commenter objected to our proposed addition of language 
specifying that restoration of the form of perennial and intermittent 
stream segments that the permittee mines through is part of Phase I 
reclamation, which consists of backfilling, grading, and establishment 
of drainage control. According to the commenter, this language 
unlawfully amends section 519(c)(1) of SMCRA,\617\ which authorizes the 
release of 60% of the reclamation bond for a permit area ``when the 
operator completes the backfilling, regrading, and drainage control.'' 
For the same reason, the commenter objected to the proposed requirement 
to retain sufficient bond after Phase I release to cover restoration of 
the ecological function of streams and completion of the fish and 
wildlife enhancement measures required in the permit.
---------------------------------------------------------------------------

    \617\ 30 U.S.C. 1269(c)(1).
---------------------------------------------------------------------------

    We do not agree with the commenter's rationale. First, restoration 
of the form of perennial and intermittent streams that the operation 
mines through is a part of regrading and establishment of drainage 
control. Second, nothing in section 519 of SMCRA overrides the 
requirement in section 509(a) of SMCRA \618\ that the amount of bond 
``be sufficient to assure the completion of the reclamation plan if the 
work had to be performed by the regulatory authority in the event of 
forfeiture.'' That requirement applies at all times, including after 
Phase I bond release.
---------------------------------------------------------------------------

    \618\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    We are adopting paragraph (b) as proposed, with minor editorial 
changes and the two revisions discussed in this paragraph. We improved 
the clarity of final paragraph (b)(1) by specifying that Phase I 
reclamation includes construction of the postmining drainage pattern 
and stream-channel configuration required by Sec. Sec.  816.56(b), 
816.57(c)(1), 817.56(b), and 817.57(c)(1). This addition is consistent 
with the description of Phase I reclamation in section 519(c)(1) of 
SMCRA, which provides that Phase I reclamation consists of 
``backfilling, regrading, and drainage control.'' Construction of the 
postmining drainage pattern and stream-channel configuration is part of 
both regrading and drainage control. In addition, final paragraph 
(b)(2) specifies that the regulatory authority must retain sufficient 
funds after Phase I bond release to cover restoration of both the 
hydrologic function and ecological function of perennial and 
intermittent streams, not just ecological function as in proposed 
paragraph (b)(2). The addition of hydrologic function is responsive to 
our revision of proposed paragraph (c) to classify restoration of 
hydrologic function as part of Phase II reclamation.
    Section 800.42(c) establishes criteria for Phase II bond release. 
Final paragraphs (c)(1) and (2) differ from proposed paragraphs (c)(1) 
and (2) in several respects, apart from assorted minor editorial 
revisions. First, final paragraph (c)(1)(i) specifies that 
redistribution of organic materials is a part of Phase II reclamation, 
consistent with final Sec.  816.22(f), which requires salvage and 
redistribution or reuse of most organic materials. Second, final 
paragraph (c)(1)(ii) provides that Phase II reclamation includes 
restoration of the hydrologic function of perennial and intermittent 
streams that the permittee mines through. This revision resolves an 
ambiguity in the proposed rule, which never specified whether 
restoration of hydrologic function was a part of restoration of the 
form of the stream or part of restoration of the ecological function of 
the stream. Restoration of hydrologic function is not properly 
classified as a part of Phase I reclamation because it is not 
necessarily a part of backfilling, regrading, or drainage control. Nor 
is it properly classified as part of the restoration of the ecological 
function of a stream because restoration of the hydrologic function is 
a prerequisite for restoration of the ecological function. Therefore, 
we

[[Page 93262]]

decided that restoration of hydrologic function is best classified as 
part of Phase II reclamation. Third, final paragraph (c)(1)(iii) 
clarifies that the requirement for successful establishment of 
revegetation applies to streamside vegetative corridors. We have no 
reason to believe that proposed paragraph (c)(1)(iii) would have been 
interpreted differently, but the revision should resolve any questions 
on that point.
    Final paragraphs (c)(3) through (5) contain only minor editorial 
revisions from their counterparts in the proposed rule. The principal 
revision is the clarification that final paragraph (c)(4) applies only 
to prime farmland historically used for cropland. This restriction is 
consistent with Sec.  785.17(a) of our existing rules.
    In the preamble to proposed Sec.  800.42(c), we invited comment on 
whether we should provide national standards for establishment of 
vegetation for the purposes of Phase II bond release or whether 
establishment of standards for this purpose is best left to the 
regulatory authority, based on local conditions. See 80 FR 44541 (Jul. 
27, 2015). We received few comments on this question, but those that we 
did receive generally supported leaving establishment of standards to 
the regulatory authority. One commenter found establishment of 
standards unnecessary because Sec. Sec.  816.116 and 817.116 already 
establish revegetation success standards in more detail.
    We decided to retain the current arrangement in which there are no 
national standards. Regulatory authorities have established these 
standards as part of their approved regulatory programs in the past and 
they will continue to do so. These standards apply only for purposes of 
determining when revegetation has been successfully established for 
purposes of Phase II bond release. They differ from the revegetation 
success standards to which Sec. Sec.  816.116 and 817.116 apply in that 
standards developed in compliance with Sec. Sec.  816.116 and 817.116 
include the revegetation responsibility period specified in Sec. Sec.  
816.115 and 817.115 and determine, in part, when the regulatory 
authority may approve Phase III bond release. The regulatory authority 
has the discretion to apply identical standards to both Phase II and 
III bond release, but doing so would have the effect of creating little 
distinction between Phase II and III bond release. Elimination of this 
distinction would be inappropriate for a national rule because section 
519(c)(2) clearly contemplates a distinction between ``successful 
reclamation'' for purposes of Phase II bond release and completion of 
the revegetation responsibility period. The only exception is prime 
farmland historically used for cropland, in which case, section 
519(c)(2) of SMCRA \619\ prohibits Phase II bond release until soil 
productivity for prime farmlands has returned to equivalent levels of 
yield as non-mined land of the same soil type in the surrounding area 
under equivalent management practices.
---------------------------------------------------------------------------

    \619\ 30 U.S.C. 1269(c)(2).
---------------------------------------------------------------------------

    Section 800.42(d) establishes criteria for Phase III bond release. 
Under final Sec.  700.11(d)(2), Phase III bond release equates to 
termination of jurisdiction under SMCRA. We are adopting Sec.  
800.42(d) as proposed, with minor editorial changes to improve clarity 
and correct cross-references. We received few comments on proposed 
paragraph (d). One commenter observed that demonstrating full 
restoration of the ecological function of a stream segment is difficult 
to quantify for purposes of Phase III bond release because no clear 
standards exist. Sections 780.28(g) and 784.28(g) of this final rule 
require that the regulatory authority establish standards for 
determining when the ecological function of a perennial or intermittent 
stream has been restored. The commenter also asked what science or 
management tools exists to define restoration of ecological function. 
Sections 780.28(g)(3) and 784.28(g)(3) of this final rule identify, and 
require use of, the best technology currently available for this 
purpose. Finally, the commenter inquired as to how this requirement 
would apply to ephemeral streams. The answer is that this requirement 
applies only to perennial and intermittent streams that the permittee 
mines through. It does not apply to ephemeral streams.
    Another commenter complained that the proposed rule is not clear 
regarding the consideration of pre-existing impacts in making a bond 
release determination. The commenter requested that the final rule 
clarify that the permittee will not be responsible for pre-existing 
impacts. The commenter also asserted that we should convene a group of 
bonding experts and state agencies to discuss the issue of pre-existing 
conditions and how to best address it during the bond release process. 
The commenter did not identify any pre-existing impacts or explain what 
the term means. However, under SMCRA, the permittee is responsible only 
for impacts resulting from the mining operation. Therefore, we do not 
see a need to convene a group of experts to discuss this topic.
Section 800.43: When and how must the regulatory authority provide 
notification of its decision on a bond release application?
    We are adopting Sec.  800.43 as proposed, with minor editorial and 
organizational changes to improve clarity. We received no comments on 
this section.
Section 800.44: Who may file an objection to a bond release application 
and how must the regulatory authority respond to an objection?
    We are adopting Sec.  800.44 as proposed, with minor editorial 
changes to improve clarity. We received no comments on this section.
Section 800.50: When and how will a bond be forfeited?
    We are adopting Sec.  800.50 as proposed with the exception of two 
revisions resulting from comments that we received on proposed Sec.  
800.18(b). We received no comments specific to Sec.  800.50.
    In response to the comments that we received on proposed Sec.  
800.18(b), as discussed in the preamble to Sec.  800.18(b), we revised 
Sec.  800.50(a)(1) to clarify that, if the amount of bond to be 
forfeited is less than the total amount of bond posted, the amount 
forfeited must be no less than the estimated total cost of achieving 
the reclamation plan requirements. We also revised Sec.  800.50(a)(1) 
to specify that the regulatory authority must calculate the estimated 
total cost of achieving the reclamation plan requirements for long-term 
treatment of a discharge in a manner consistent with final Sec.  
800.18(c). See final Sec.  800.50(a)(1)(ii). In addition, we revised 
Sec.  800.50(b)(2) to require that the regulatory authority use the 
funds collected from bond forfeiture to complete the reclamation plan, 
or the portion of the reclamation plan covered by the bond, on the 
permit area or increment to which the bond applies. We replaced the 
phrase ``complete the reclamation plan, or portion thereof,'' in 
previous Sec.  800.50(b)(2) with ``complete the reclamation plan, or 
the portion thereof covered by the bond,'' to clarify that the 
regulatory authority may not choose to ignore any element of the 
reclamation plan that is covered by the bond.
Section 800.60: What liability insurance must I carry?
    We are adopting Sec.  800.60 as proposed. We received no comments 
on this section.

[[Page 93263]]

Section 800.70: What special bonding provisions apply to anthracite 
operations in Pennsylvania?
    We are adopting Sec.  800.70 as proposed. We received no comments 
on this section.

L. Part 816--Permanent Program Performance Standards--Surface Mining 
Activities

Section 816.1: What does this part do?
    With the exception of altering the title of this section for 
clarity, we are finalizing Sec.  816.1 as proposed. We received no 
comments on this section.
Section 816.2: What is the objective of this part?
    We are finalizing Sec.  816.2 as proposed. We received no comments 
on this section.
Section 816.10: Information Collection
    Section 816.10 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 816.
Section 816.11: What signs and markers must I post?
    We are finalizing Sec.  816.11 as proposed. We received no comments 
on this section.
Section 816.13: What special requirements apply to drilled holes, 
wells, and exposed underground openings?
    We are finalizing Sec.  816.13 as proposed. We received no comments 
on this section.
Section 816.22: How must I handle topsoil, subsoil, and other plant 
growth media?
    As discussed in the preamble to the proposed rule,\620\ we proposed 
to modify Sec.  816.22 to require the salvage, protection, and 
redistribution of all soil materials to restore the site's capability 
to support the postmining land use and the uses that it supported 
before mining. After evaluating the comments that we received, we are 
adopting the section as proposed, with the following explanations and 
exceptions.
---------------------------------------------------------------------------

    \620\ 80 FR 44436, 44542-44543 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Many comments on proposed Sec.  816.22 also cited or apply to the 
closely related provisions of proposed Sec.  780.12(e), so we are 
including some discussion of those provisions here. Proposed Sec.  
780.12(e)(1)(i) required that the permit application include a plan and 
schedule for removal, storage, and redistribution of topsoil, subsoil, 
and other material to be used as a final growing medium in accordance 
with Sec.  816.22. Proposed Sec.  780.12(e)(1)(ii) specified that the 
permit application must include a plan requiring that the B horizon, C 
horizon, and other underlying strata, or portions thereof, be removed 
and segregated, stockpiled, and redistributed to achieve the optimal 
rooting depths required to restore premining land use capability or to 
comply with the revegetation requirements of Sec. Sec.  816.111 and 
816.116.
Final Paragraph (a): Removal and Salvage
    Proposed Sec.  816.22(a)(1) required that the permittee separately 
remove and salvage all topsoil and other soil materials identified for 
salvage and use as postmining plant growth media in the soil handling 
plan approved in the permit under Sec.  780.12(e).
    Some commenters claimed that there is no scientific support for the 
proposition that the recovery and redistribution of all topsoil and 
subsoil is necessary to achieve reclamation success in all situations. 
Another commenter alleged that some western soils do not contain 
multiple soil horizons. According to the commenter, topsoil is 
typically stripped as one layer down to unsuitable materials (bedrock 
or unsuitable soils, likely the C horizon). The commenter objected to 
the requirement to salvage and redistribute soil horizons separately 
because it would slow topsoil placement and complicate direct 
placement. The commenter urged us to revise the proposed rule to allow 
mixing of soil horizons. The commenter also argued that requiring 
additional segregation of horizons would increase costs, delay 
reclamation, and hinder long-term success because of increased handling 
and equipment traffic.
    One commenter opposed the proposed requirement to salvage and 
redistribute all existing topsoil as scientifically and practically 
unsupported. According to the commenter, salvage and redistribution of 
topsoil in some areas, such as western North Dakota, would result in 
construction of a postmining soil that inhibits growth of many types of 
plants because of the high levels of sodium and other salts in that 
topsoil.
    Another commenter expressed disappointment at the lack of a defined 
limit to the depths of soil horizons that the permittee must salvage 
and redistribute to construct a plant growth medium. The commenter 
explained that, in some regions, the proposed rule would require 
salvage and redistribution of soil to a greater depth than the previous 
rule allegedly required. According to the commenter, adoption of the 
proposed rule could lead to the need to stockpile substantially larger 
volumes of soil, which would involve added cost, both because of the 
increased volume of soil materials and because of the requirement to 
segregate the soil materials by horizon. The commenter noted that, in 
the Midwest, loess and drift soils can be more than 10 feet thick. The 
commenter questioned the benefit of salvaging that depth of soil. The 
commenter suggested that the rule should require the salvage and 
redistribution of additional topsoil and the B and C horizons only in 
those regions or states in which greater soil depth is required to 
establish a suitable plant growth medium.
    The commenter further alleged that the rule may pose a problem for 
mining operations in the Southwest, because topsoil can be less than 
six inches thick. According to the commenter, the rule should allow the 
use of a topsoil-subsoil mixture in this situation.
    We have made limited revisions to the proposed rule in response to 
these comments and other related comments on Sec.  780.12(e). Final 
Sec.  816.22(a)(1)(i), which we proposed as the first sentence of Sec.  
816.22(a)(1), no longer requires that soil horizons be separately 
removed and salvaged. Instead, we have added Sec.  816.22(a)(1)(ii), 
which provides that the soil handling plan approved in the permit under 
Sec.  780.12(e) will specify which soil horizons the permittee must 
separately remove and salvage. It also requires that the plan specify 
whether some or all of those soil horizons or other soil substitute 
materials may or must be blended to achieve an improved plant growth 
medium. The net effect is that the final rule allows for some 
flexibility in the removal, salvage, and use of topsoil and other soil 
materials, although it primarily relies upon the requirements for 
approval of soil substitutes and supplements in Sec.  780.12(e)(2) in 
determining whether to allow the use of substitutes for existing soil 
horizons.
    We also revised the second sentence of proposed Sec.  816.22(a)(1), 
which is now final Sec.  816.22(a)(1)(iii). We added an introductory 
phrase specifying that the requirement to complete removal and salvage 
of all soil materials before any drilling, blasting, mining, or other 
surface disturbance takes place in the area that is to be disturbed may 
be waived in the soil handling plan approved in the permit under final 
rule Sec.  780.12(e). This change acknowledges the fact that in some 
cases where soil substitutes are approved for use in place

[[Page 93264]]

of the existing topsoil or subsoil, the substitute materials may not be 
available for salvage until later in the mining process. However, we do 
not anticipate that this situation will be commonplace.
    In addition, as discussed in the preamble to Sec.  780.12(e), we 
have revised the proposed requirements for soil handling plans in 
permit applications. Final Sec.  780.12(e)(1)(ii) differs slightly from 
the proposed in that the final rule requires separate removal, 
stockpiling (if necessary), and redistribution of the B and C soil 
horizons and other underlying strata only ``to the extent and in the 
manner needed'' to achieve the optimal rooting depths required to 
restore premining land use capability and to comply with revegetation 
requirements. It does not require salvage and redistribution of ``all'' 
of those soil horizons and overburden strata.
    New final Sec.  780.12(e)(1)(iii) provides that the plan need not 
require salvage of soil horizons that the permittee demonstrates, to 
the satisfaction of the regulatory authority, are inferior to other 
soil horizons or overburden materials as a plant growth medium, 
provided that the permittee complies with the soil substitute 
requirements of paragraph (e)(2). We added this language in response to 
comments objecting to the proposed requirement for salvage, 
segregation, and redistribution of soil horizons when one or more of 
those horizons have physical or chemical characteristics that make them 
inferior to other overburden materials in creating a medium conducive 
to plant growth. We made this change in response to comments urging us 
to allow blending of soil horizons when experience has demonstrated 
that doing so results in a superior growing medium.
    In response to comments supporting the blending of soil horizons, 
we added Sec.  780.12(e)(1)(iv), which allows blending of the B 
horizon, C horizon, and underlying strata, or portions thereof, to the 
extent that research or prior experience under similar conditions has 
demonstrated that blending will not adversely affect soil productivity. 
In other words, blending of subsoil horizons does not require approval 
in accordance with the soil substitute and supplement requirements of 
paragraph (e)(2). However, any proposal to blend topsoil with other 
soil horizons must be approved as a topsoil substitute or supplement 
under paragraph (e)(2). We find that topsoil merits extra consideration 
because, in most areas, topsoil is uniquely valuable as a plant growth 
medium, with a structure and ecology that is difficult to restore or 
replicate.
    Several commenters objected to the application of these 
requirements nationwide because, according to the commenters, salvage 
and redistribution of soil materials other than topsoil is only 
necessary to address conditions found in the Appalachian Region. One 
commenter alleged that the preamble to the proposed rule provided no 
rationale for the nationwide application of the rule except a research 
report from Appalachia and a guide to the reclamation of borrow sites 
used for transportation facilities in Alberta, Canada. According to the 
commenter, these two documents clearly do not represent the vast 
majority of mined and reclaimed lands throughout the United States. The 
commenter further alleges that the preamble fails to evaluate or 
discuss the postmining productivity of reclaimed lands on the tens of 
thousands of acres of mined and reclaimed land outside Appalachia where 
no subsoil has been salvaged.
    We do not agree with these comments. A suitable growth medium, 
including an adequate root zone, is essential to establishing 
successful vegetation and demonstrating restoration of premining land 
use capability in every region. In those relatively rare cases in which 
restoration of a particular ecological community requires a shallow 
root zone or other specialized soil condition, Sec.  816.22(e)(1)(v) 
authorizes variations in the depth of soil redistribution. See 71 FR 
51684-51688 (Aug. 30, 2006) for an extensive discussion of this topic. 
Otherwise, as explained in the preamble to our proposed rule, 
scientific studies have determined that an adequate root zone is 
critical to plant growth and survival, and that topsoil alone typically 
does not provide an adequate root zone. See 80 FR 44436, 44488-44489 
(Jul. 27, 2015). These studies, which are not limited to Appalachia, 
document that salvage and redistribution of topsoil alone will not 
necessarily restore the mine site to a condition in which it is capable 
of supporting the uses that it was capable of supporting before any 
mining, as required by section 515(b)(2) of SMCRA,\621\ nor will it 
necessarily support the postmining land use. Therefore, salvage and 
redistribution of subsoil and other soil materials typically will be 
necessary to meet the requirements of section 515(b)(2) of SMCRA.
---------------------------------------------------------------------------

    \621\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    The Alberta publication to which the commenter refers contains a 
particularly cogent explanation of the importance of subsoil and an 
adequate root zone. We summarized that explanation in the preamble to 
the proposed rule, but it bears repeating here:

    Plant roots extend through the topsoil into the subsoil (root 
zone), which provides a substantial proportion of the plant's 
nutrient requirements. For example, field studies have shown that 
between 45 percent and 65 percent of nitrogen available to plants 
from the soil lies below a depth of 6 inches. During dry summer 
weather, many plants, especially deep-rooted plants like alfalfa and 
most trees, depend for their survival on moisture available in the 
subsoil. Alfalfa extracts 55 percent of its moisture requirements 
from soil materials deeper than one foot and is capable of 
extracting water from subsoil up to 6 feet in depth. Even medium-
rooted crops like wheat and corn extract up to 40 percent of their 
moisture requirements from soil materials deeper than one foot. 
Finally, many plants depend on root penetration well into the 
subsoil for physical support, especially where topsoil is thin. If 
plant roots are unable to penetrate deeply into a reclaimed subsoil, 
soil capability for plant growth will be degraded.\622\
---------------------------------------------------------------------------

    \622\ 80 FR 44436, 44488-44489 (Jul. 27, 2015), citing Alberta 
Transp., Alberta Transportation Guide to Reclaiming Borrow 
Excavations, pp. 5-6 (Dec. 2015).

Alfalfa, corn, and wheat are widely grown crops, so the fact that this 
information appears in an Alberta publication in no way compromises its 
applicability throughout the coalfields.
    Finally, the commenter did not provide references to studies on the 
postmining productivity of reclaimed lands outside Appalachia where no 
subsoil has been salvaged, and we are not aware of studies or data on 
this topic.
    One commenter recommended that we revise proposed Sec.  
816.22(a)(1), which is now final Sec.  816.22(a)(1)(iii), by removing 
the reference to drilling. According to the commenter, drilling may be 
necessary to install power poles and fence posts, the installation of 
which paragraph (a)(2)(i) exempts from soil salvage and removal 
requirements. We accepted this recommendation and made other revisions 
to the proposed rule to ensure consistency with final Sec.  780.12(e) 
and other provisions of final Sec.  816.22. Final paragraph (a)(1)(iii) 
now provides that, except as provided in the soil handling plan 
approved in the permit under Sec.  780.12(e), the permittee must 
complete removal and salvage of topsoil, subsoil, and organic matter 
before any mining-related surface disturbance takes place on that area, 
other than the minor disturbances identified in paragraph (a)(2).
    One commenter requested that we revise proposed paragraph (a)(2)(i) 
by

[[Page 93265]]

adding monitoring wells to the list of small structures that are 
considered minor disturbances and thus are exempt from the requirement 
to remove and salvage topsoil and other soil materials. According to 
the commenter, the extent of disturbance caused by the construction of 
monitoring wells is similar to the extent of disturbance caused by the 
construction of power poles, signs, and fence lines. We agree with this 
rationale and the commenter's recommendation. Final paragraph (a)(2)(i) 
provides that the removal and salvage of topsoil and other soil 
materials in advance of minor disturbances that occur at the site of 
small structures, such as power poles, signs, monitoring wells, or 
fence lines, is not necessary.
    In addition, we restructured proposed paragraph (a)(2) to 
automatically exempt minor disturbances that meet the criteria of 
either paragraph (a)(2)(i) or paragraph (a)(2)(ii) from soil salvage 
requirements unless the regulatory authority specifies otherwise. 
Proposed paragraph (a)(2), like the previous rules, required 
affirmative regulatory authority approval as a prerequisite for 
exemption from the soil salvage requirements. This change will reduce 
burdens on both the permittee and the regulatory authority without any 
danger of environmental harm. Only very minor soil losses will occur 
from the construction of small structures like power poles, fence 
lines, signs, or monitoring wells under paragraph (a)(2)(i), while 
there will no soil loss at all under paragraph (a)(2)(ii), which 
applies only to activities that will not destroy the existing 
vegetation and will not cause erosion.
Final Paragraph (b): Handling and Storage
    We revised proposed paragraph (b)(1) for clarity and consistency 
with other provisions of this section and Sec.  780.12(e) concerning 
segregation of soil materials. Final paragraph (b)(1) now includes a 
new first sentence requiring that the permittee segregate and 
separately handle the materials removed under paragraph (a) to the 
extent required in the soil handling plan approved in the permit 
pursuant to Sec.  780.12(e). Proposed paragraph (b)(1) required 
segregation of all soil materials, but final Sec. Sec.  780.12(e) and 
816.22 provide exceptions to that requirement under certain 
circumstances.
    We received a number of comments on the provision in proposed 
paragraph (b)(2)(iii) requiring that stockpiled material ``[b]e 
protected from wind and water erosion through prompt establishment and 
maintenance of an effective, quick-growing, non-invasive vegetative 
cover or through other measures approved by the regulatory authority.'' 
One commenter alleged that many non-native, non-invasive plants can do 
a better job of protecting the stockpiles than native vegetation and 
suggested that we allow their use. Other commenters argued that it will 
be impossible to keep common non-native plants from colonizing the 
stockpiles. Another commenter noted that it may be impossible to keep 
stockpiles free of non-invasive species because stockpiles are often 
configured in a way that makes mowing, a common method of controlling 
non-invasive species, impractical.
    We did not revise the proposed rule in response to these comments 
because we find that the rule already accommodates the commenters' 
concerns. When the permittee selects the vegetative cover method of 
controlling erosion, final paragraph (b)(2)(iii) requires the use of a 
``non-invasive vegetative cover,'' which could include non-native 
plants that are non-invasive. Nothing in this paragraph would prohibit 
or require the control or eradication of volunteer non-native, non-
invasive species that colonize the stockpiles. Finally, mowing is not 
the only means of controlling invasive species, nor is it necessarily 
the most effective. The permittee has the flexibility to implement 
other accepted control techniques when mowing is not practical. 
Finally, in the event that it is difficult or impossible to establish 
and maintain an effective, quick-growing, non-invasive vegetative 
cover, final paragraph (b)(2)(iii) allows the regulatory authority to 
approve the use of other measures to protect the stockpiles from wind 
and water erosion.
Final Paragraph (c): Soil Substitutes and Supplements
    Paragraph (c) specifies that, if the soil handling plan approved in 
the permit in accordance with Sec.  780.12(e) provides for the use of 
topsoil or subsoil substitutes or supplements, the permittee must 
salvage, store, and redistribute the overburden materials selected and 
approved for that purpose in a manner consistent with paragraphs (a), 
(b), and (e) of Sec.  816.22. We discuss all comments received on the 
use of soil substitutes and supplements in the preamble to Sec.  
780.12(e).
Final Paragraph (d): Site Preparation
    We did not adopt proposed paragraph (d)(1) because that paragraph 
pertained to backfilling and grading of spoil, which is the subject of 
Sec.  816.102, not to the subject of Sec.  816.22, which, in this 
context, is the placement and grading of soil materials. We adopted a 
revised version of proposed paragraph (d)(2) as final paragraph (d). In 
response to a comment, we added a reference to deep tillage as a method 
of alleviating compaction and preventing slippage between the spoil and 
the soil. We also replaced the reference to ``topsoil'' with a 
reference to ``soil materials'' in order to be consistent with the 
revisions to other provisions of this section that require the salvage 
and redistribution of both topsoil and subsoil, not just topsoil. 
Finally, we made assorted plain language changes and streamlined the 
rule text.
Final Paragraph (e): Redistribution
    Final paragraph (e)(1)(ii) differs from proposed paragraph 
(e)(1)(ii) in that we replaced the word ``contours'' with the phrase 
``final surface configuration.'' We made this change because the term 
``contours'' could be interpreted as applying only to elevation 
differences, which is not our intent in this context. The phrase 
``final surface configuration'' refers to the shape of the land surface 
and the features of that surface. This term is more encompassing, and 
thus more relevant, to soil redistribution. In addition, because the 
term ``general surface configuration'' appears as the core element of 
the definition of ``approximate original contour'' in section 701(2) of 
SMCRA \623\ and 30 CFR 701.5, it is more appropriate for use in the 
context of redistribution of soil materials under final section 
816.22(e). The term ``surface configuration'' or a variation thereof 
also appears in Sec. Sec.  780.12(d), 780.20, 780.35, 816.102, 816.104, 
816.105, 816.106, and 816.107, which lends support to replacement of 
``contours'' with ``final surface configuration'' in the final rule.
---------------------------------------------------------------------------

    \623\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

    We revised proposed paragraph (e)(1)(iii) to make that paragraph 
consistent with Sec.  780.12(d)(2)(ii), which provides that the 
backfilling and grading plan must ``[l]imit compaction of topsoil and 
soil materials in the root zone to the minimum necessary to achieve 
stability.'' It also requires that the plan ``identify measures that 
will be used to alleviate soil compaction if necessary.'' Similarly, 
final paragraph (e)(1)(iii) requires that the permittee minimize 
compaction of the topsoil and soil materials in the root zone to the 
extent possible and alleviate any excess compaction that may occur. It 
further requires that the permittee limit use of measures that result 
in increased compaction to those situations in which added compaction 
is necessary to ensure stability. In response to a

[[Page 93266]]

suggestion from the U.S. Environmental Protection Agency, we revised 
proposed paragraph (e)(1)(iv) by adding language clarifying that the 
standards referenced in the final rule are those that have been 
established under section 303(c) of the Clean Water Act, or other state 
or tribal water quality standards.
    Final paragraph (e)(1)(v) requires redistribution of salvaged soil 
materials to achieve an approximately uniform and stable thickness when 
doing so is consistent with the approved postmining land use, the final 
surface configuration, surface-water drainage systems, and the 
requirement in Sec.  816.133 that all disturbed areas be restored to 
conditions that are capable of supporting the uses they were capable of 
supporting before any mining or higher or better uses approved under 
final Sec.  780.24(b) . Previous paragraph (d)(1)(i), which final 
paragraph (e)(1)(v) replaces, required redistribution of topsoil and 
topsoil substitutes and supplements to achieve an approximate uniform, 
stable thickness ``when consistent with the approved postmining land 
use, contours, and surface-water drainage systems.'' We inadvertently 
excluded the quoted language from the proposed rule. Final paragraph 
(e)(1)(v) incorporates the quoted language, with the exception that we 
replaced ``contours'' with ``the final surface configuration'' for the 
reasons discussed above in connection with final paragraph (e)(1)(ii). 
As explained in the preamble to the previous rule, the quoted language 
is intended to ``make clear that the uniform soil thickness provision 
is a function of the approved postmining land use, contours, and 
surface water drainage systems, and is not, in itself, an inflexible 
requirement.'' See 71 FR 51685 (Aug. 30, 2006).
    We further revised the previous and proposed rules by adding 
language providing that the requirement to redistribute soil materials 
in a uniform thickness applies only when such redistribution is 
consistent with the requirement in section 816.133 to restore all 
disturbed areas to conditions that are capable of supporting the uses 
they were capable of supporting before any mining or higher or better 
uses approved under Sec.  780.24(b). This additional proviso harmonizes 
this rule with our revised land use rules in final Sec. Sec.  780.24 
and 816.133 and with section 515(b)(2) of SMCRA, all of which require 
that the permittee restore mined land to a condition capable of 
supporting the uses that it was capable of supporting before any mining 
or higher or better uses of which there is reasonable likelihood. Soils 
are a critical element of restoration of land use capability. Without 
this provision, the requirement for uniform soil thickness would result 
in an inability to meet the postmining land use capability requirement 
on portions of the permit area where a reduction in soil thickness 
compared to premining conditions would result in diminished soil 
capability or productivity.
    Final paragraph (e)(1)(v) also includes a provision allowing soil 
thicknesses to vary when those variations are necessary or desirable to 
achieve specific revegetation goals and ecological diversity. This 
provision is identical to corresponding provisions in both the proposed 
and previous rules.
    One commenter suggested that we expressly provide an additional 
exception to allow for variability in underlying spoil quality, 
compatibility with the root zones, and land use. Except as discussed 
above, we have made no substantive changes to this provision because 
final paragraph (e)(1)(v) already allows for variations in thickness 
when such variations are consistent with the postmining land use and 
when variations are necessary or desirable to achieve specific 
revegetation goals and ecological diversity.
    Final paragraph (e)(2) requires the use of a statistically valid 
sampling technique to document that soil materials have been 
redistributed in the locations and depths required by the soil handling 
plan approved in the permit in accordance with section 780.12(e). In 
the preamble to the proposed rule,\624\ we encouraged the use of the 
U.S. Environmental Protection Agency's Data Quality Objectives seven-
step method to statistically validate soil sampling techniques. Several 
commenters alleged that this technique is not necessary because state 
regulatory authorities have valid existing methods for documenting the 
redistribution of soil. The commenters urged us to provide regulatory 
authorities with the discretion to determine which statistical method 
to use. One commenter added that the U.S. Environmental Protection 
Agency's method is overly complex and intended for landfills, which, 
unlike mine sites, are highly controlled sites.
---------------------------------------------------------------------------

    \624\ 80 FR 44436, 44543 (Jul. 27, 2015).
---------------------------------------------------------------------------

    As in the proposed rule, final paragraph (e)(2) simply requires the 
use of a statistically valid sampling technique. It does not require 
use of the U.S. Environmental Protection Agency Data Quality Objectives 
method. We encourage use of the U.S. Environmental Protection Agency 
Data Quality Objectives method for the reasons discussed in the 
preamble to the proposed rule, but the permittee and the regulatory 
authority have the flexibility to choose another statistically valid 
technique.
    Several commenters opposed proposed paragraph (e)(2) because it 
required the permittee to use a statistically valid technique to 
document that soil materials have been redistributed in the locations 
and depths required by the soil handling plan developed under Sec.  
780.12(e) and approved as part of the permit. According to the 
commenters, a requirement for soil depth mapping using statistically 
valid techniques is inappropriate because other means are available to 
verify soil replacement depths, including regulatory authority 
inspection reports that routinely document soil depths. We disagree 
with the commenters. Under the final rule, inspection reports are 
acceptable only if the inspectors use a statistically valid sampling 
technique and document the data in the reports. Because of the limited 
numbers of soil types likely to be present within the permit area, we 
do not anticipate the requirement in final paragraph (e)(2) to be 
onerous or expensive.
Final Paragraph (f): Organic Matter
    Under the previous rules, permittees almost universally either 
burned or buried organic matter, which meant that the potential 
beneficial impacts of those materials on soil productivity were not 
realized. In addition, burning organic material releases greenhouse 
gases into the atmosphere. Proposed paragraph (f) required that the 
permittee salvage duff, other organic litter, and vegetative materials 
such as tree tops, small logs, and root balls. It also required that 
the permittee then redistribute those materials across the regraded 
surface or incorporate them into the soil to control erosion, promote 
growth of vegetation, serve as a source of native plant seeds and soil 
inoculants to speed restoration of the soil's ecological community, and 
increase the moisture retention capability of the soil. Proposed 
paragraph (f) banned the burying or burning of organic matter. However, 
as an alternative to redistribution, it allowed use of those materials 
for stream restoration purposes or to construct fish and wildlife 
enhancement features.
    One commenter argued that topsoil and organic materials are 
frequently so closely integrated that separating the two into 
stockpiles and then subsequently distributing them separately is 
virtually impossible. We agree that segregation of topsoil and

[[Page 93267]]

organic materials is not always easily accomplished. Therefore, we have 
added a sentence to final paragraph (f)(1)(i) to clarify that the 
permittee may salvage organic matter and topsoil in a single operation 
that blends those materials when doing so is practicable and consistent 
with the approved postmining land use.
    Other commenters expressed concern about introducing weed seeds and 
root material which would complicate management of the site. One 
commenter opposed the use of organic materials from non-native species, 
such as Russian olive and Siberian elm, which may be present in 
windbreaks and shelterbelts, for stream restoration and fish and 
wildlife enhancement purposes. The commenter noted that adoption of the 
proposed rule, which would allow those uses, could spread invasive, 
non-native trees species.
    In response to these comments, we reconsidered the impact of the 
proposed rule on the spread of invasive or noxious species. To reduce 
the potential impact, we have revised Sec.  779.19(b)(3) to require 
that permit applicants identify those portions of the proposed permit 
area that support significant populations of non-native invasive or 
noxious species. This information will identify areas where the salvage 
of organic materials should be prohibited to prevent the spread of 
undesirable species. In concert with that requirement, we have added 
paragraph (f)(1)(ii) to the final rule. This new paragraph provides 
that the requirement to salvage organic materials does not apply to 
organic matter from areas identified under Sec.  779.19(b) as 
containing significant populations of invasive or noxious non-native 
species. Final paragraph (f)(1)(ii) further provides that the permittee 
must bury organic matter from these areas in the backfill at a 
sufficient depth in order to prevent the regeneration or proliferation 
of undesirable species.
    Numerous commenters opposed the proposed requirement to salvage, 
store, and redistribute organic materials. Many commenters alleged that 
this requirement would interfere with the use of mechanized equipment 
on cropland, land used for hay production, and some forestry 
plantations. Several commenters alleged that, while this practice may 
be applicable to reforestation of mined lands in Appalachia, it would 
definitely be detrimental to reclamation in other parts of the country. 
One commenter cited the example of the Northern Great Plains, where 
reclaimed lands are used for row crop and small grain production and 
where trunks, stumps, and brush from shelterbelts comprised mainly of 
non-native species planted decades ago are commonly piled and burned or 
buried to make way for improved crop production. Similarly, according 
to the commenter, the placement of tree tops, small logs and root balls 
on intensively grazed pastures on reclaimed land may not be appropriate 
and will likely be contrary to the private landowner's wishes. The 
commenter agreed that retention and replacement of the types of organic 
materials described in the proposed rule may enhance reclamation in 
many instances, especially in and near reclaimed streams, forests, and 
wildlife habitat. However, the commenter also asserted that we must 
recognize that this practice is not appropriate nationwide under all 
conditions and that it may, in fact, be unacceptable to the private 
surface owner. Therefore, the commenter recommended qualifying this 
requirement by requiring salvage and redistribution only ``where 
appropriate to enhance revegetation and fulfill the postmining land 
use.''
    In response to these comments, we moved proposed paragraph (f)(3) 
to paragraph (f)(2)(ii) in the final rule. We then added a new 
paragraph (f)(3), which provides that the redistribution requirements 
for organic matter do not apply to those portions of the permit area 
identified in paragraphs (f)(3)(i)(A) through (C). Final paragraph 
(f)(3)(i)(A) creates an exception for those portions of the permit area 
upon which row crops will be planted as part of the postmining land use 
before final bond release. Final paragraph (f)(3)(i)(B) creates a 
similar exception for those portions of the permit area that will be 
intensively managed for hay production before final bond release. This 
exception does not extend to pasture land or other grazing land. 
Finally, as a technical clarification, we added final paragraph 
(f)(3)(i)(C), which creates an exception for lands upon which 
structures, roads, other impervious surfaces, or water impoundments 
have been or will be constructed as part of the postmining land use 
before final bond release.
    We intend for these exceptions to be applied narrowly. Most sites 
with cropland or hayland postmining land uses have relatively little 
woody plant material present before mining, so there should be areas on 
the edge of fields or that are used for non-cropland purposes upon 
which those woody organic materials can be spread. We anticipate that 
non-woody organic materials can and would be salvaged and mixed with 
the topsoil for cropland and hayland in order to improve productivity 
without hampering the use of agricultural machinery. Therefore, we have 
added paragraph (f)(3)(ii) to the final rule. That paragraph provides 
that, when the circumstances described in paragraphs (f)(3)(i)(A) 
through (C) apply, the permittee must make reasonable efforts to 
redistribute the salvaged organic materials on other portions of the 
permit area or use them to construct stream improvement or fish and 
wildlife habitat enhancement features consistent with the approved 
postmining land use.
    We recognize that there may be circumstances in which it is not 
reasonably possible to use all available organic materials for these 
purposes. Therefore, the last sentence of final paragraph (f)(3)(ii) 
allows the permittee to bury the remaining materials in the backfill, 
provided the permittee demonstrates, and the regulatory authority 
finds, that it is not reasonably possible to use all available organic 
materials. This provision also is responsive to other comments alleging 
that salvage of all available organic materials could result in a 
greater amount of material than can be reasonably and practically used. 
However, final paragraph (f)(4)(i) retains the proposed prohibition on 
burning of organic materials. Retention of this prohibition is 
appropriate because burial is a viable alternative method of disposal 
and because burial does not result in the greenhouse gas emissions 
produced by combustion.
    Another commenter contended that the distribution of organic 
materials would make the use of mechanical tree planters impractical. 
As a result of this comment, we have added paragraph (f)(2)(iii) to the 
final rule. That paragraph allows the permittee to adjust the timing 
and pattern of the redistribution of large woody debris in order to 
accommodate the use of mechanized tree-planting equipment on sites with 
a forestry postmining land use.
    Some commenters alleged that the requirement to salvage and 
redistribute organic materials conflicts with section 816.111(d)(2), 
which allows the use of suitable mulch as one method of stabilizing the 
surface and controlling erosion, but which requires that the mulch be 
free of weeds and noxious plant seeds. With respect to this last 
comment, we note that Sec. Sec.  816.22(f) and 816.111(d)(2) serve 
different purposes. Section 816.111(d)(2) pertains to surface 
stabilization of newly planted areas. We do not anticipate that the 
organic materials to which Sec.  816.22 pertains will be either 
suitable for or used for that purpose. Instead, they would either be 
mixed with the soil or redistributed on the surface separate from the 
mulch.

[[Page 93268]]

    Another commenter argued that long-term storage of tree roots and 
logs can result in deterioration of those materials, rendering them of 
limited use. The commenter also alleged that segregating the organic 
material for storage would be costly and complex, while placement on 
temporary redistribution areas to prevent deterioration would cause 
reclamation costs to triple because the material would have to be moved 
three times. According to the commenter, the need for additional 
storage sites would result in increased disturbance. The commenter 
further noted that it is unlikely that this material could be shredded 
because of the presence of rocks in root balls.
    We acknowledge that lengthy storage of organic materials is 
detrimental to their value as a source of seeds, mycorrhizae, fungi, 
and other forms of life that are important to soil ecology. For that 
reason, we encourage that an operation be designed so that organic 
material salvaged from one portion of the permit can be immediately 
redistributed as part of the reclamation of a different portion of the 
permit. Such a design would have the added benefit of reducing costs by 
requiring that the material be handled only once. However, when long-
term storage is necessary, the stored materials would still be valuable 
as a soil additive in the form of compost or rotted organic matter that 
would improve the tilth of the soil. The final rule does not prescribe 
a storage method, so the permittee would not be required to use the 
most expensive method available.
    Several commenters alleged that the removal, storage, and 
redistribution of organic matter would be very costly and argued that 
implementation of these measures is unnecessary to reconstruct 
productive postmining soil. Some commenters contended that reference to 
our Forest Reclamation Advisory No. 8,\625\ which highlights the 
importance of re-spreading stumps, woody debris, and roots on the 
regraded area, is inappropriate because that document is not applicable 
outside Appalachia. The commenters acknowledge that Forest Reclamation 
Advisory No. 8 may serve as sound guidance for unique situations in 
which extreme measures are necessary, but assert that the approach 
outlined in this guidance does not represent the best technology 
currently available in other regions. Moreover, commenters claim that 
decades of data demonstrate that successful forest reclamation can be 
achieved without the handling of soils and organic matter as prescribed 
in the proposed rule.
---------------------------------------------------------------------------

    \625\ J.C. Skousen, et al, Forest Reclamation Advisory No. 8: 
Selecting Materials for Mine Soil Construction when Establishing 
Forests on Appalachian Mine Sites, p. 2, (Jul. 2011). Available at: 
http://arri.osmre.gov/FRA/Advisories/FRA_No.8%20Soil%20Materials.pdf 
(last accessed Nov. 3, 2016).
---------------------------------------------------------------------------

    We do not agree with the commenters that Forest Reclamation 
Advisory No. 8 serves as sound guidance only for unique situations in 
which extreme measures are necessary. The Advisory documents the 
importance of organic materials and native soils in supporting 
reforestation and forestry postmining land uses. However, we recognize 
that it will not apply in all situations nationwide. Therefore, our 
reference in the preamble to the proposed rule to the practices set out 
in the Forest Reclamation Advisory No. 8 should not be interpreted as a 
mandate to implement those practices in situations where it would be 
inappropriate to do so, as set forth in paragraphs (f)(3)(i)(A) through 
(C) of the final rule.
    Several commenters asserted that the storage and redistribution of 
undecomposed organic material will hinder plant growth because bacteria 
responsible for decomposition often rob the soil of nutrients essential 
to plant growth. We agree with the commenter that, initially, the 
carbon-to-nitrogen ratio will rise, making less nitrogen available to 
plants. However, this rise is only temporary. Ultimately, the carbon-
to-nitrogen ratio will decrease, making more nitrogen available for 
plant growth.\626\ Studies have confirmed that salvage and 
redistribution of organic matter will greatly increase nutrient 
availability in the long term.\627\
---------------------------------------------------------------------------

    \626\ U.S. Dep't. of Agric., Natural Res. Conservation Serv., 
Carbon to Nitrogen Ratios in Cropping Systems. East National 
Technology Support Center, Greensboro, N.C., in cooperation with 
North Dakota NRCS. (2011). (This reference provides evidence for 
these temporary changes within crop fields; however, they also apply 
to reconstructed SMCRA soils as they are substantially altered by 
human activity).
    \627\ C.E. Zipper, et al., Rebuilding Soils on Mined Land for 
Native Forest in Appalachia. Soil Sci. Soc. Am. J. (77:337-349), p. 
347 (2012).
---------------------------------------------------------------------------

    Some commenters also asserted that salvage, storage, and 
redistribution of organic materials will require the use of new 
equipment, which will result in additional mining costs. While 
permittees may incur some additional handling costs, the equipment 
needed for these operations is readily available to the industry and 
should not result in any significant additional cost. The environmental 
benefits of salvaging and redistributing organic matter should outweigh 
any added operational cost.
    One commenter noted that well-documented research has shown that 
appropriate equipment and reduced soil handling is critical to long-
term reclamation success on mine sites. Several commenters alleged that 
the requirements for salvage and redistribution of organic matter will 
result in additional handling of soil materials and more equipment 
traffic over re-soiled sites, which could result in greater soil 
compaction. While increased soil compaction may be a possibility if 
redistribution occurs while soils are wet, the permittee can avoid 
excessive compaction by choosing to use proper equipment and by timing 
redistribution to avoid equipment traffic over wet soils. This approach 
will allow the site to both benefit from redistribution of the organic 
matter and avoid adverse impacts associated with excessive compaction.
Section 816.34: How must I protect the hydrologic balance?
    As discussed in the preamble to the proposed rule, we proposed to 
add new Sec.  816.34 to incorporate, consolidate, and reorganize 
portions of previous Sec.  816.41, previously entitled, ``Hydrologic-
balance protection.'' \628\ We received comments expressing concern 
about the proposed rule that resulted in changes to the final rule, as 
discussed below. Additionally, we received comments supporting this new 
section, including one from another federal agency supporting proposed 
paragraph (a)(5) about the protection of existing water rights under 
state law. We have finalized paragraph (a)(5) as proposed.
---------------------------------------------------------------------------

    \628\ 80 FR 44436, 44543-45 (Jul. 27, 2015).
---------------------------------------------------------------------------

    One commenter questioned the use of the phrase ``best technology 
currently available'' as proposed in paragraphs (a)(8) and (a)(10) and 
suggested that we change this phrase to ``best management practices.'' 
The commenter asserted that at most mining operations the 
implementation of ``best management practices,'' such as minimizing the 
disturbed area, specially handling and placing acid and toxic 
materials, and ensuring timely revegetation, are sufficient to prevent 
the formation of acid and toxic drainage. We agree with the commenter 
and have replaced the term ``best technology currently available'' with 
the term ``best management practices'' for several reasons. First, the 
actions described above often require the use of earth moving 
equipment, and the term ``best management practice'' is typically used 
by those in the profession of backfilling and grading. Secondly, upon 
further review of these paragraphs, we have determined that this change 
will help eliminate confusion. The term ``best technology currently 
available'' is used

[[Page 93269]]

in SMCRA,\629\ but in a context that is inapplicable to this section of 
the rule.
---------------------------------------------------------------------------

    \629\ 30 U.S.C. 1265(b)(10) and (24) and 1266(b)(11).
---------------------------------------------------------------------------

    We also made additional changes to paragraphs (a)(8) and (a)(10) in 
response to this comment. Paragraph (a)(8) now states, ``The regulatory 
authority will determine the meaning of the term ``best management 
practices'' on a site-specific basis. At a minimum, the term includes 
equipment, devices, systems, methods, and techniques that are currently 
available anywhere, as determined by the Director determines to be best 
management practices.'' Paragraph (a)(10) requires the permittee to 
``[p]rotect the surface-water quality by using best management 
practices, as described in paragraph (a)(8) of this section to handle 
earth materials, ground water discharges, and runoff . . . .''
    These additions provide the regulatory authorities with discretion 
to determine the meaning of the term ``best management practices'' on a 
site-specific basis. This is important because methods for groundwater 
and surface water protection may vary by region. Consequently, the best 
management practices should be determined by the regulatory 
authorities. We have provided some guidance to help regulatory 
authorities in making this determination. At a minimum, the term 
includes equipment, devices, systems, methods and techniques that are 
currently available anywhere, even if they are not widely utilized.
    A regulatory authority commenter expressed concern with the 
requirement at paragraph (a)(10)(i) that runoff be handled in a manner 
to ``avoid the formation'' of acid or toxic mine drainage. We agree 
with the commenter. Recognizing that the formation of acid or toxic 
mine drainage cannot be wholly avoided, we have revised the final rule 
to be clear that surface water quality must be protected in a manner 
that ``prevents postmining discharges of acid or toxic mine drainage.'' 
This revision more appropriately conforms to section 515(b)(10)(A) of 
SMCRA \630\ which requires the operator to minimize the disturbances to 
the prevailing hydrologic balance at the mine site and associated 
offsite areas and to minimize the disturbances to the quality and 
quantity of water in surface water and groundwater systems during and 
after mining by avoiding acid and toxic mine drainage. The postmining 
discharge of acid mine drainage is what paragraph (a)(10)(i) was meant 
to address. This change to the final rule should clarify commenter's 
concern.
---------------------------------------------------------------------------

    \630\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    We have modified paragraph (a)(10)(ii) by adding the term ``best 
technology currently available'' to clarify that the operator should 
prevent contributions of suspended solids to surface stream flow using 
``best technology currently available'' instead of ``best management 
practices.'' We made this change to be consistent with the language of 
SMCRA at section 515(b)(10)(B)(i).\631\
---------------------------------------------------------------------------

    \631\ 30 U.S.C. 1265(b)(10)(B)(i).
---------------------------------------------------------------------------

    One commenter opined that the previous regulations were sufficient 
and proposed paragraph (a)(11) is unnecessary. We added this paragraph 
for informational purposes. It helps the regulated community locate 
other provisions in our regulations that protect surface-water quality 
and flow rates and reminds them of their obligations under those 
provisions. We are retaining it in the final rule because it provides a 
service in this regard to both to the regulated community and the 
public.
    Paragraph (b)(1) requires that to the maximum extent practicable, 
operators must use mining and reclamation practices that minimize water 
pollution, changes in flow, and adverse impacts on stream biota rather 
than relying upon water treatment. We received many comments in support 
of this modification. However, one commenter questioned our authority 
to make this change. Section 515(b)(24) of SMCRA provides the authority 
to minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values, such as protecting the hydrologic 
balance.\632\ In addition, section 515(b)(10) \633\ of SMCRA requires 
the operator to minimize the disturbances to the prevailing hydrologic 
balance at the mine site and associated offsite areas and to the 
quality and quantity of water in surface water and groundwater systems. 
These sections provide us with the statutory authority to make the 
changes discussed in paragraph (b)(1).
---------------------------------------------------------------------------

    \632\ 30 U.S.C. 1265(b)(24).
    \633\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    Another commenter suggested that we revise ``maximum extent 
practicable'' to allow for greater permitting flexibility; however, the 
commenter did not explain why additional flexibility was necessary. 
Additional flexibility would weaken this requirement, making it more 
difficult to enforce mining and reclamation practices that minimize 
water pollution, changes in flow, and adverse impacts to stream biota. 
We have not accepted the suggestion and are adopting paragraph (b)(1) 
as proposed.
    Final paragraph (d) establishes examination and reporting 
requirements for the surface runoff control structures identified in 
the surface water runoff control plan approved in the permit under 
section 780.29. To be consistent with final section 780.29, we modified 
proposed paragraphs (d)(1) and (d)(2), by changing the term ``hydraulic 
structures'' to ``runoff-control structures.'' Runoff control 
structures are any man-made structures designed to control or convey 
stormwater runoff on or across a mine site. As discussed in the 
preamble to Sec.  780.29, this term encompasses the entire surface 
water control system and includes diversion ditches, drainage benches 
or terraces, drop structures or check dams, all types of conveyance 
channels, downdrains, and sedimentation and detention ponds and 
associated outlets. It does not include swales or reconstructed 
perennial, intermittent, or ephemeral stream channels.
    Proposed paragraph (d)(1) required that after each occurrence of 
certain precipitation events, the permittee must examine the structures 
identified under Sec.  780.29, and submit a report certified by a 
registered, professional engineer to the regulatory authority within 48 
hours. Several commenters indicated that it might not be possible to 
inspect all structures and report upon the conditions within 48 hours 
because of the number of applicable structures or because of the 
difficulty in achieving access if the precipitation event created 
deteriorated site conditions. In consideration of these comments, we 
have modified paragraph (d)(1) to require the operator to examine all 
structures identified under Sec.  780.29, within 72 hours of cessation 
of each occurrence of certain precipitation events.
    Proposed paragraph (d)(1)(i) required the examination of runoff 
control structures after each occurrence of the 2-year recurrence 
interval, or greater flow event, in areas with an average annual 
precipitation of more than 26.0 inches. In the preamble to the proposed 
rule, we invited comment on whether a precipitation event with a 2-year 
recurrence interval is an appropriate threshold for requiring 
examination of sediment control systems in mesic regions or whether we 
should allow variations based upon differences in terrain, storm 
frequency, the nature of sedimentation control structures, and the 
frequency with which discharges from sedimentation control structures

[[Page 93270]]

occur.\634\ Some commenters opined that the requirement for an 
inspection after every 2-year event was unnecessary. Other commenters 
asserted that the regulatory authority should have discretion to 
determine the inspection frequency because it should be based on 
experience and local conditions. After consideration we have retained 
the 2-year recurrence interval requirement of proposed paragraph 
(d)(1)(i). Regardless of the region, sediment control, flood potential, 
and flood-related damage remain a concern. Bankfull flow in a stream in 
any area generally occurs in response to a precipitation event with an 
average recurrence interval of 1.5 years.\635\ Because a majority of 
sediment transport over time is accomplished at moderate flow 
rates,\636\ we chose to require inspection of the sediment control 
structures following occurrence of a 2-year event in areas where 
precipitation is greater than 26 inches per year.
---------------------------------------------------------------------------

    \634\ 80 FR 44436, 44545 (Jul. 27, 2015).
    \635\ Dave Rosgen. Applied River Morphology, Wildland Hydrology, 
Pagosa Springs, Colorado (1996).
    \636\ Id.
---------------------------------------------------------------------------

    One regulatory authority commenter stated that it currently 
receives reports of significant precipitation events when there is a 
discharge or failure at a runoff control structure. Waiting until there 
has been a discharge or failure does not satisfy our intent in 
promulgating paragraph (d)(1). The final rule seeks to prevent 
discharges or failures that could harm the public, environment, or 
private property by specifying the threshold at which a precipitation 
event rises to the level of significance and the time when the mine 
operator must take action. Consequently, we have retained paragraph 
(d)(1)(i) as proposed.
    In areas with an average annual precipitation of 26.0 inches or 
less, paragraph (d)(1)(ii) requires an examination after a significant 
flow event of a size specified by the regulatory authority. We invited 
comment on whether we should establish more specific criteria for 
examination of runoff control structures in arid and semiarid 
regions.\637\ One commenter from a Western state regulatory authority 
claimed that the storm event should not be less than the 10-year 
recurrence interval. We recognize that there are limited discharges 
from runoff control structures in areas with an average annual 
precipitation of 26.0 inches or less, but the commenter provided no 
rationale for using a minimum recurrence interval of ten years. We are 
retaining in the final rule, proposed paragraph (d)(1)(ii), which gives 
the regulatory authority the responsibility to specify the size of a 
significant event for inspection in areas with an average annual 
precipitation of 26.0 inches or less because the regulatory authority 
is in the best decision to make determinations about their specific 
region.
---------------------------------------------------------------------------

    \637\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (d)(2) required that within 48 hours of 
cessation of certain precipitation events, a report certified by a 
registered, professional engineer, must be submitted to the regulatory 
authority. One commenter noted that all precipitation events are 
reported on a monthly basis and are addressed by the field inspector as 
needed. Another commenter suggested that if a reporting requirement is 
retained, a more reasonable reporting requirement would be 14 days. We 
agree with commenters that although it is important to perform the 
inspection as soon as possible (but not longer than within the allotted 
72 hours), it is not critical that the report be submitted immediately. 
Therefore, in consideration of these comments, we modified paragraph 
(d)(2)(i) to require that a report be submitted by the operator to the 
regulatory authority within 30 days of cessation of the applicable 
precipitation event.
    To account for situations where a series of precipitation events 
occur in a short timeframe, we have added paragraph (d)(2)(ii) to allow 
the submission of one report to cover all precipitation events that 
occur within a 30-day period.
    In response to proposed paragraph (d)(2), one commenter suggested 
that if the reporting requirement is retained as proposed, a 
professional engineer certification should not be required because an 
inspection by any qualified person should be sufficient. We disagree. 
For the same reasons discussed in the preamble of section 780.25, the 
examination report addressing the performance of the runoff control 
structures should be certified by a registered, professional engineer 
because it affords a strict level of accountability. This increased 
accountability is necessary given the hazard potential in the event of 
failure and it is imperative that these structures be in sound 
condition at the time the certification is made.
Section 816.35: How must I monitor groundwater?
    As discussed in the preamble to the proposed rule, we proposed to 
modify groundwater monitoring requirements for surface mining.\638\ 
After evaluating the comments that we received, we are adopting Sec.  
816.35 as proposed, with several modifications.
---------------------------------------------------------------------------

    \638\ 80 FR 44436, 44545-46, 44650 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Numerous commenters expressed concern with proposed paragraph 
(a)(2). This proposed paragraph required groundwater monitoring 
throughout mining and reclamation until final bond release. Several 
regulatory authority commenters questioned the feasibility of the 
proposed monitoring requirements because proposed Sec.  800.42(d) 
required that, among other requirements, monitoring wells be removed 
before an applicant can apply for final bond release.
    The requirements for closing monitoring wells are found in Sec.  
816.39, which require a permittee to permanently seal exploratory and 
monitoring wells in a safe and environmentally sound manner in 
accordance with Sec.  816.13 before the regulatory authority may 
approve final bond release. Commenters are correct that it would be 
impossible to continue groundwater monitoring until final bond release 
while simultaneously closing monitoring wells. Therefore, we have 
modified final paragraph (a)(2) to require that groundwater monitoring, 
at a minimum, must continue through mining, reclamation, and the 
revegetation responsibility period as prescribed by 816.115 of this 
part. Additionally, monitoring must continue beyond the minimum time 
frame, as necessary, for the monitoring results to meet the criteria 
required in 816.35(d)(1) and (2), as determined by the regulatory 
authority. These modifications ensure that groundwater monitoring will 
continue until the regulatory authority determines that requirements 
prescribed in this section are satisfied. Permittees may seek revisions 
to their monitoring plans, in certain circumstances, through the permit 
revision procedures contained in Sec.  774.13.
    We have modified paragraph (d)(2)(iii) to clarify that the 
permittee must demonstrate that the operation has preserved or restored 
the biological condition of the stream within the permit and adjacent 
areas to the biological condition determined during baseline data 
collection. We made this change to establish that the baseline 
conditions of the stream serve as the standard for stream preservation 
or restoration.
    In paragraph (d)(2), we have replaced the terms ``existing'' and 
``reasonably foreseeable'' with ``approved postmining land uses within 
the permit

[[Page 93271]]

area.'' We evaluated our use of the term ``existing use'' throughout 
the rule and were concerned that, because the term ``existing use'' is 
also used in a Clean Water Act context, it might cause confusion. In 
response we deleted the term from the final rule. We deleted the term 
``reasonably foreseeable uses'' from the final rule except in 
connection with the protection of reasonably foreseeable surface lands 
uses from the adverse impacts of subsidence. The term appears only in 
SMCRA in section 516(b)(1), which requires that operators of 
underground mines adopt subsidence control measures to, among other 
things, maintain the value and reasonably foreseeable use of surface 
lands. It is not appropriate for a more general context. Further, many 
commenters objected to the usage of ``reasonably foreseeable'' 
asserting that it is too subjective, difficult to assess, and open to 
varying interpretations, which could result in inconsistent 
application. Therefore, in a groundwater context we have replaced 
``reasonably foreseeable use'' with the phrase ``approved postmining 
land uses within the permit area'' to avoid confusion with Clean Water 
Act terminology.
    Several commenters requested that we allow a regulatory authority 
to discontinue monitoring when the regulatory authority determines it 
is no longer needed. Similarly, several commenters indicated that 
paragraph (d) should allow the regulatory authority the discretion to 
modify monitoring requirements based on the site specific knowledge and 
experience of the regulatory authority. As discussed above, paragraph 
(d) allows permittees to request revisions to a groundwater monitoring 
plan by using the permit revision procedures of Sec.  774.13. The 
requested revision may include changes to the parameters covered and 
the sampling frequency. However, our obligation is to ensure that the 
monitoring requirements are applied consistently and objectively, and 
recognizing the difficulty in detecting and predicting impacts to 
groundwater, only permits which have demonstrated the required 
conditions as stated in paragraph (d) may be revised by a regulatory 
authority. Allowing monitoring modifications based on such subjective 
factors as a regulatory authority's experience and/or site knowledge 
would defeat this obligation.
    Commenters stated that paragraph (e), which prescribes when the 
regulatory authority must require additional groundwater monitoring, 
should be modified to permit regulatory authorities to use their 
discretion regarding additional monitoring. Other commenters suggested 
that paragraph (e) is unnecessary as regulators already possess the 
inherent authority to require additional monitoring. Two coal 
organizations noted that additional monitoring is already done in many 
states and only enforcement of our previous rules is necessary. While 
we acknowledge that some states require additional monitoring, this is 
not a universal practice throughout all states and there are no 
regulations currently in place that require regulatory authorities to 
uniformly impose additional monitoring. Therefore, we have retained 
paragraph (e), with no change to the final rule.
    Finally, one commenter stated that paragraph (f) does not allow the 
transfer of wells and may be inconsistent with landowner desires. The 
commenter is incorrect because our regulations expressly provide for 
the transfer of wells. Paragraph (f) states that the requirement to 
install, maintain, operate, and, when no longer needed, remove all 
equipment, structures, and other devices used in conjunction with 
monitoring groundwater should be consistent with Sec. Sec.  816.13 and 
816.39. Section 816.13 allows for retention and transfer of a drilled 
hole or groundwater monitoring well for use as a water well under the 
conditions set forth in Sec.  816.39. Therefore, we have not modified 
paragraph (f) of the final rule.
Section 816.36: How must I monitor surface water?
    As discussed in the preamble to the proposed rule, we proposed to 
modify the surface water monitoring requirements.\639\ A commenter 
asserted that surface water monitoring and associated data collection 
need not continue indefinitely. The commenter opined that collecting 
water quality data long after reclamation is complete amounted to 
collecting and analyzing ambient stream flow conditions and is a waste 
of time, especially for large western surface mines. We declined to 
change the requirement that requires the operator to monitor surface 
water until final bond release. However, we have revised final 
paragraph (a)(2) to clarify that monitoring must continue through 
mining and reclamation until the regulatory authority approves release 
of the entire bond amount for the monitored area as required in 
Sec. Sec.  800.40 through 800.43. This change ensures that the 
regulatory authority conducts the necessary steps outlined in 
Sec. Sec.  800.40 through 800.43 related to the bond release criteria 
before surface water monitoring ceases. This requirement is important 
because hydrologic impacts can take years to develop given the slow 
movement of groundwater and its potential impact on surface water. Our 
experience has shown numerous instances where hydrologic issues develop 
after a site has reached Phase 1 or Phase 2 of reclamation and 
associated bond release. Also, discontinuing the data collection 
requirements prior to final bond release is contrary to the objectives 
found in SMCRA section 508(a)(13).\640\
---------------------------------------------------------------------------

    \639\ 80 FR 44436, 44546-47, 44650-51 (Jul. 27, 2015).
    \640\ 30 U.S.C. 1258(a)(13).
---------------------------------------------------------------------------

    We made several modifications to paragraph (d), which allows the 
permittee to use the permit revision procedures section 774.13 to 
request a modification of the surface-water monitoring requirements, 
provided that certain demonstrations are made. First, we modified 
paragraph (d)(2)(iii) to clarify that the operation must demonstrate 
that it has preserved or restored the biological condition of the 
stream to the condition determined during baseline data collection. We 
made this change to make clear the link between baseline conditions and 
the restoration or preservation standard, and to ensure the regulatory 
authority considers any baseline changes in advance of modifying the 
monitoring plan.
    Second, we modified paragraph (d)(2)(iv) to remove the phrase 
``reasonably foreseeable uses.'' The final rule no longer includes the 
term ``reasonably foreseeable uses'' in contexts other than protection 
of reasonably foreseeable surface land uses from the adverse impacts of 
subsidence. We have several rationales for removal of this term. First, 
the term appears in SMCRA only in section 516(b)(1),\641\ which 
requires that operators of underground mines adopt subsidence control 
measures to, among other things, maintain the value and reasonably 
foreseeable use of surface lands. Sections 717(b) and 720(a)(2) of 
SMCRA \642\ separately protect certain water uses. Additionally, 
numerous commenters opposed inclusion of the term ``reasonably 
foreseeable uses'' on a basis that is subjective, difficult to 
determine, and open to widely varying interpretations, which could 
result in inconsistent application throughout the coalfields. We also 
wanted to avoid any potential conflicts with the Clean Water Act 
authority in determining the applicability of reasonably foreseeable 
use(s).
---------------------------------------------------------------------------

    \641\ 30 U.S.C. 1266(b)(1).
    \642\ 30 U.S.C. 1307(b) and 1309a(a)(2).

---------------------------------------------------------------------------

[[Page 93272]]

    In paragraph (d)(2)(iv), we also added a requirement to demonstrate 
that the surface water availability and quality are maintained or 
restored to the extent necessary to support the approved postmining 
land uses within the permit area. This change was made to ensure that 
the regulatory authority does not approve a monitoring plan 
modification that would prevent a determination that the surface water 
retains the ability to support the postmining land use, as well as any 
actual uses of the surface water prior to mining. The previous rule at 
Sec.  816.41(e)(3)(i) required a demonstration that the water quantity 
and quality are suitable to support approved postmining land uses. 
Proposed Sec.  816.36(d)(2)(iv) would have replaced this provision with 
a requirement for a demonstration that the operation has maintained the 
availability and quality of surface water in a manner that can support 
existing and reasonably foreseeable uses of the water. However, as 
explained above, we have now decided not to include the reference to 
reasonably foreseeable uses in the final rule. Therefore, our rationale 
for deletion of the requirement in the proposed rule pertaining to 
postmining land uses, as set forth at 80 FR 44436, 44546-44547 (Jul. 
27, 2015), no longer applies and we are retaining that requirement as 
part of our final rule.
    Additionally, we have created two separate paragraphs to help 
clarify that there are two distinct requirements: One relating to 
support of the approved postmining land use (paragraph (d)(iv)) and the 
other relating to maintenance of all designated uses (paragraph 
(d)(v)). These paragraphs delineate the two related but distinctly 
different concepts. In paragraph (d)(v) we have added the word ``any'' 
before the words ``designated uses'' to address situations where more 
than one designated use applies to a stream.
    One commenter responded to our solicitation for comments on whether 
we should place restrictions on the regulatory authority's ability to 
modify the approved monitoring plan. The commenter asserted that the 
regulatory authority should be able to modify the parameter list after 
a permit has been issued because it needs to consider the physical, 
climatological, and other characteristics of the site when making 
regulatory decisions on SMCRA sites. The commenter also opined that 
allowing the regulatory authority the discretion to make permit 
modifications to the monitoring plan allows the regulatory authority to 
adopt new testing methods as they become available without having to 
promulgate a state program regulatory change.
    With respect to regulatory authority discretion to modify the 
monitoring plan, paragraph (d) allows permit revisions that include 
such modifications as long as the requirements of paragraphs (d)(2)(i) 
through (vi) are met. This latitude helps the regulatory authorities 
meet changing conditions in a watershed due to mining and non-mining 
related changes. To both protect the operator and to delineate the 
source of water quality changes that may occur in a watershed, we 
consider it vital to be able to modify the parameter list to ascertain 
impacts from all sources.
Section 816.37: How must I monitor the biological condition of streams?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our regulations at Sec.  816.37 \643\ to require monitoring of 
the biological condition of perennial and intermittent streams in the 
manner specified in the monitoring plan approved under proposed Sec.  
780.23(c).\644\ After evaluating the comments that we received, we have 
revised the final rule. As discussed in the preamble to final Sec.  
780.19(c)(6), the requirements for assessing biological condition of 
intermittent streams apply only if a scientifically defensible 
bioassessment protocol has been established for assessment of 
intermittent streams in the state or region in which the stream is 
located. For all other intermittent streams the best control technology 
currently available consists of the establishment of standards that 
rely on restoring the ``form,'' ``hydrologic function,'' and water 
quality of the stream and the reestablishment of streamside vegetation 
as a surrogate for the biological condition of the stream. Therefore, 
in final rule Sec.  816.37(a)(ii) we make clear that you must use the 
bioassessment protocol that complies with final rule Sec.  
780.19(c)(6)(vii).
---------------------------------------------------------------------------

    \644\ 80 FR 44436, 44547 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Some commenters suggested that the regulatory authority should be 
granted discretion to modify or terminate monitoring based on site 
conditions, such as geology, hydrology, anticipated future water use, 
public need, or other natural resource management considerations. 
Section 780.23(d) of the final rule makes clear that the regulatory 
authority may waive or modify the biological condition monitoring plan 
requirements in two scenarios: (1) When lands are eligible for 
remining, and (2) for operations that avoid streams. As detailed in 
paragraph (a)(1)(i) of Sec.  816.37, these exceptions also apply within 
this section of the final rule.
    We are declining to adopt the commenters' suggestion. The 
exceptions discussed above are the only exceptions that are consistent 
with the purposes of SMCRA, as described in section 102 of the 
Act.\645\ SMCRA section 102 (d) sets out the goal of ``assur[ing] that 
surface coal mining operations are so conducted as to protect the 
environment.'' \646\ Section 102(h) of SMCRA sets out a goal to 
``promote the reclamation of mined areas left without adequate 
reclamation prior to August 3, 1977, and which continue, in their 
unreclaimed condition, to substantially degrade the quality of the 
environment, prevent or damage the beneficial use of land or water 
resources, or endanger the health or safety of the public.'' \647\ We 
do not agree with the commenter that biological monitoring should be 
modified or terminated based on site conditions, or other issues such 
as anticipated future water use, natural resource management decisions, 
and public need. The biological condition monitoring plan requires the 
establishment of a sufficient number of appropriate monitoring 
locations up gradient and down gradient of the mine site and adjacent 
areas to provide the regulatory authority with the necessary data to 
determine the impacts of the operation upon the hydrologic balance. 
These measurements allow the regulatory authority to have the data 
necessary to make an informed decision as to whether a trend, emanating 
from the operation, may result in material damage to the hydrologic 
balance outside the permit area and whether the streams are trending 
toward ecological success. Further modifications or waivers to the 
monitoring of biological conditions of streams of the type that the 
commenters suggest would reduce the amount of data available to make 
informed decisions and would thus, reduce the effectiveness of 
monitoring. Therefore, we are not providing any further exceptions or 
waivers in Sec. Sec.  816.37 or 780.23(d). For additional information 
on the exceptions for remining and operations that avoid streams, refer 
to the preamble discussion of Sec.  780.23(d).
---------------------------------------------------------------------------

    \645\ 30 U.S.C. 1202(d).
    \646\ Id.
    \647\ 30 U.S.C. 1202(h).
---------------------------------------------------------------------------

    Several commenters objected to the requirement at paragraph (a)(2) 
that the permittee must continue monitoring throughout mining and 
during reclamation until the regulatory authority release the entire 
bond amount for the monitored area. Specifically, commenters stated 
that there is no need to monitor biological

[[Page 93273]]

activity in stream channels during the various phases of bond release 
for well-functioning streams, newly reclaimed streams, or until full 
reclamation has been achieved because the resources spent on such 
monitoring would be better allocated to other reclamation tasks. These 
commenters further suggest that the focus should be upon monitoring in 
other areas which the operator and the regulatory authority agree are 
of higher importance.
    After careful consideration of these comments, we are retaining the 
final rule as proposed. We have determined that monitoring is important 
in all phases of mining and reclamation through final bond release, as 
required by Sec. Sec.  800.40 through 800.43 of the final rule. 
Regulatory authorities cannot assess whether ecological function has 
been restored without biological monitoring. A snapshot sample after 
reclamation presents an incomplete picture and cannot demonstrate 
whether or not ecological success has been achieved. Annual, long-term 
monitoring of all restored perennial and intermittent stream channels 
is necessary to ensure the restoration of ecological function as 
required by the final rule. Long-term monitoring is also necessary to 
determine if the restoration is trending toward success and to give 
operators time to correct any negative trends before bond release is 
scheduled. The early identification of negative trends will allow the 
regulatory authority and the operator to identify and correct any 
negative trends before they present larger and more significant issues 
that could delay bond release, increase costs, or result in further 
corrective actions. In addition, we note that the final rule affords 
the regulatory authority discretion in determining how to assess 
restoration of ecological function, and the regulatory authority can 
use this discretion in considering the establishment of monitoring 
locations and sampling frequency as noted in Sec.  780.23(c)(2)(ii) and 
(iii).
    Other commenters expressed concern that there is currently 
insufficient scientific data to determine suitable timing for 
initiating the required monitoring in reclaimed streams. Still other 
commenters maintained that biological data are not reliable for 
determining trends toward reclamation success because biological data 
is overly influenced by seasonal conditions which render sampling 
methods imprecise. One commenter recommended that water quality 
parameters and stream form are valid indicators of the ability of a 
stream to support the necessary biota long-term.
    While we acknowledge the variable nature of biological data, we 
find that it is necessary and appropriate to use this data to document 
the restoration of ecological function in perennial and intermittent 
streams, especially when the data is consistently collected before 
mining, during mining, and during reclamation, until the regulatory 
authority releases the entire bond amount for the monitored area under 
Sec. Sec.  800.40 through 800.43. Rigorous quality assurance and 
quality control methods will reduce the imprecision associated with 
sampling. In addition, the monitoring required in this paragraph is 
just one part of the water monitoring requirements in this rule. Other 
parts of the water monitoring requirements, such as the groundwater and 
surface water monitoring requirements of Sec. Sec.  816.35 and 816.36, 
will allow the operator and the regulatory authority to determine, in a 
timely manner, whether ecological function will be successful. 
Moreover, sampling of only water quality parameters and or stream form 
will suffice to determine the success of ecological condition. For 
these reasons, we have not changed the final rule in response to these 
comments.
    A final commenter objected to paragraph (c), which, if the sample 
analysis demonstrates noncompliance, requires a permittee to notify the 
regulatory authority, take any actions required under Sec.  773.17(e), 
and implement any applicable remedial measures required by the 
hydrologic reclamation plan. The commenter suggested that these 
requirements duplicate the reporting requirements of the Clean Water 
Act and that, as a result, they are burdensome. In the final rule, we 
have deleted proposed paragraph (c).
Sections 816.38: How must I handle acid-forming and toxic-forming 
materials?
    As discussed in the preamble,\648\ we proposed to modify Sec.  
816.38 to more completely implement two sections of SMCRA: Section 
515(b)(14) of SMCRA,\649\ which requires that all acid-forming 
materials and toxic materials be ``treated or buried and compacted or 
otherwise disposed of in a manner designed to prevent contamination of 
ground or surface waters,'' and section 515(b)(3) of SMCRA,\650\ which 
provides that ``overburden or spoil shall be shaped and graded in such 
a way as to prevent slides, erosion, and water pollution.'' After 
evaluating the comments, we made several modifications and additions to 
the final rule. As discussed in the preamble to Sec.  780.12(n), we 
determined that the requirements of proposed paragraphs (a) through (d) 
\651\ of this section were more appropriately located in the permitting 
standards than in the performance standards. Therefore, we have moved 
these paragraphs to new paragraph (n) in Sec.  780.12, which describes 
what should be included in the reclamation plan if the baseline data 
indicates the presence of acid-forming and toxic forming materials. We 
retained in Sec.  816.38 the requirements related to performance 
standards for handling of acid-forming and toxic-forming materials and 
have combined and organized them into two paragraphs, (a) and (b). We 
have addressed all comments about the paragraphs moved to Sec.  780.12 
in the preamble to that section.
---------------------------------------------------------------------------

    \648\ 80 FR 44436, 44547-44548 (Jul. 27, 2015).
    \649\ 30 U.S.C. 1265(b)(14).
    \650\ 30 U.S.C. 1265(b)(3).
    \651\ 80 FR 44436, 44651 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In final paragraph (a), to ensure that the permittee is taking all 
appropriate action to prevent the formation of acid or toxic mine 
drainage, we have specified that the permittee must use the best 
technology currently available to avoid the creation of acid or toxic 
mine drainage into surface water or groundwater. We have added 
nonsubstantive language to paragraph (a) to conform to plain language 
principles. In addition we require that the permittee comply with the 
reclamation plan approved in the permit in accordance with Sec.  
780.12(n). In addition, we incorporated proposed paragraph (f), about 
adhering to disposal, treatment, and storage practices, into final 
paragraph (a) with no changes. In proposed paragraph (e), now paragraph 
(b), we have replaced the term ``biological condition'' with 
``biology'' in the final rule to conform to other provisions of the 
final rule. Specifically, we are no longer assessing the biological 
condition of all intermittent streams. However, as explained in the 
preamble discussion of final Sec.  780.19(c)(6), we are requiring the 
cataloging and monitoring of the biology of those intermittent streams 
for which a biological condition assessment is not required. The term 
``biology'' is sufficiently broad to encompass both streams for which 
assessment of the biological condition is required under Sec.  
780.19(c)(6) (all perennial streams and certain intermittent streams) 
and those streams for which assessment of the biological condition is 
not required.
    In the preamble to the proposed rule, we invited comment on whether 
the

[[Page 93274]]

final rule should require use of specific generally-accepted tests for 
identification of potential acid-forming and toxic-forming materials in 
the overburden strata.\652\ Commenters did not identify any specific 
tests. Several commenters noted that the regulatory authority should 
have the discretion to determine the tests that are best suited for 
their region. Based in part on this response, we have decided not to 
include specific tests in the final rule. This decision also allows 
permit applicants and regulatory authorities to avail themselves of 
advances in technology without the need for a rule change.
---------------------------------------------------------------------------

    \652\ 80 FR 44436, 44547 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 816.39: What must I do with exploratory or monitoring wells 
when I no longer need them?
    To accommodate renumbering and final rule changes in part 800, we 
have renumbered references to part 800 in this section. With the 
exception of this renumbering, we are finalizing Sec.  816.39 as 
proposed. We received no comments on this section.
Section 816.40: What responsibility do I have to replace water 
supplies?
    We proposed to modify our regulations by adding a new Sec.  816.40 
to replace water supply definitions and requirements previously located 
in Sec. Sec.  701.5, paragraphs (a) and (b) and 816.41(h).\653\ Some 
commenters suggested that we delete this proposed section because it is 
unnecessary while other commenters supported the modifications. We 
considered the comments and determined that this section is necessary 
because it more fully implements the requirements of section 717(b) of 
SMCRA \654\ by establishing performance standards for situations when 
damage to water supplies is anticipated (as allowed in paragraph (b) of 
final rule Sec.  780.22) or when unanticipated damage to protected 
water supplies occurs.
---------------------------------------------------------------------------

    \653\ 80 FR 44436, 44548 (Jul. 27, 2015).
    \654\ 30 U.S.C.1307(b).
---------------------------------------------------------------------------

    We received one comment requesting that this section apply only to 
valid water rights existing at the time of permitting. However, this 
comment is outside the scope of the proposed rule because neither the 
proposed rule nor the final rule address or determine the validity of 
water rights. The final rule ensures that if a water right has been 
adversely impacted, there will be a mechanism to replace the adversely 
impacted water supply. Consequently, we are not modifying the final 
rule in response to this comment.
    We are the adopting this section of the rule as proposed except for 
a minor, non-substantive word change in paragraph (a)(3) and a 
clarifying statement in paragraph (c)(3).
Final Paragraph (c): Measures To Address Unanticipated Adverse Impacts 
to Protected Water Supplies
    In paragraph (c)(3), we added the following statement to the final 
rule, ``[t]he regulatory authority may grant an extension if you have 
made a good-faith effort to meet this deadline, but have been able to 
do so for reason beyond your control.'' Although we did not receive any 
comments on this section, we determined upon further review of the 
proposed rule that it would be appropriate for the regulatory authority 
to grant an extension of time to comply with water replacement 
requirements if the deadline for compliance cannot be met for reasons 
beyond the control of the operator, despite the operator's good-faith 
efforts.
Section 816.41: Under what conditions may I discharge water and other 
materials into an underground mine?
    As discussed in the preamble to the proposed rule, we proposed to 
modify and expand previous Sec.  816.41 \655\ to set out the conditions 
under which an operator of a surface mine may discharge water and other 
materials into an underground mine and to more fully implement section 
510(b)(3) of SMCRA,\656\ which prohibits approval of a permit 
application unless the applicant demonstrates, and the regulatory 
authority finds, that the proposed operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area. The U.S. Forest Service provided comments in support of the 
proposed rule. We are adopting the rule, as proposed, with minor 
modifications. We discuss these changes and responses to relevant 
comments below.
---------------------------------------------------------------------------

    \655\ 80 FR 44436, 44549 (Jul. 27, 2015).
    \656\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    We have replaced the term ``biological condition'' with ``biology'' 
in paragraph (a)(1)(iii) to conform to other changes within the final 
rule. Specifically, we are no longer assessing the biological condition 
of all intermittent streams. However, as explained in the preamble 
discussion of final rule Sec.  780.19(c)(6), we are requiring the 
cataloging and monitoring of the biology of intermittent streams.
    In addition, we have modified paragraph (a)(2) by replacing 
``result in'' with the ``cause or contribute to'' to better conform to 
language used in section 303(c) of the Clean Water Act.\657\ This 
modification will improve implementation of the rule and provide 
increased clarity for the regulated public.
---------------------------------------------------------------------------

    \657\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    We proposed in paragraph (a)(3)(i) to require a demonstration that 
the discharge be at a known rate and of a quality that will meet the 
effluent limitations for pH and total suspended solids referenced in 
Sec.  817.42. One commenter asserted that this provision appears to 
usurp the allowance and permit limits that would be approved under a 
Safe Drinking Water Act Underground Injection Control permit and 
conflicts with paragraph (b). The commenter's vague assertion that the 
section ``appears to usurp allowance and permit limits'' does not 
provide enough information to fully understand commenter's concern. The 
commenter recommended that the regulatory jurisdiction of the Safe 
Drinking Water Act Underground Injection Control program be recognized. 
We recognize the jurisdiction of the Safe Drinking Water Act and we 
emphasize again that our regulations do not supersede other federal 
laws. Paragraph (a)(3)(i) does not ``usurp'' the allowance and permit 
limits approved under commenter's Underground Injection Control permit. 
Rather, the provision implements section 510(b)(3) of the Act \658\ 
which prohibits approval of a permit application unless the applicant 
demonstrates, and the regulatory authority finds, that the proposed 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area.\659\ We have determined 
that paragraph (a)(3)(i) helps to prevent material damage to the 
hydrologic balance outside the permit area because exceeding pH and 
total suspended solid effluent limitations of section 816.42 can cause 
material damage to the hydrologic balance outside the permit area. The 
commenter has not provided any information suggesting that it does not, 
nor has the commenter provided any information to clarify how this 
provision conflicts with the Safe Drinking Water Act. Thus, based on 
our expertise and on the vagueness of the comment, we reject the 
commenter's assertion. Paragraph (a)(3)(i) fits within the context of 
the authority that the Act provides and complements Safe Drinking Water 
Act standards. We also address commenter's attention to Part IV of this 
preamble

[[Page 93275]]

discussing the relationship between the Act and other statutes.
---------------------------------------------------------------------------

    \658\ 30 U.S.C. 1260(b)(3).
    \659\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Furthermore, the commenter has not provided a cogent argument as to 
why it believes that paragraph (3)(i) conflicts with paragraph (b). 
Paragraph (3)(i) provides for a demonstration that the discharge will 
be at a known rate and of a quality that will meet the effluent 
limitations for pH and total suspended solids referenced in Sec.  
816.42. Paragraph (b) provides that discharges are limited to the 
following materials: Water; coal processing waste; fly ash from a coal-
fired facility; sludge from an acid-mine-drainage treatment facility; 
flue-gas desulfurization sludge; inert materials used for stabilizing 
underground mines; and underground mine development waste. The 
commenter merely asserts, without explanation or support, that these 
two provisions conflict and does not provide any information 
demonstrating how our regulations governing the rate and quality of 
discharge conflict with our regulations limiting the materials that can 
be discharged.
    We proposed in paragraph (a)(5) to require the permittee to obtain 
written permission from the owner of the mine into which a discharge is 
to be made and provide a copy of the authorization to the regulatory 
authority. A regulatory authority commented that this is a contentious 
issue in Virginia and has been the subject of recent litigation. This 
regulatory authority opined that the application of paragraph (a)(5) to 
existing permits may cause problems. We appreciate the commenter's 
concern and understand the need to avoid disruptions. In the final rule 
Sec.   701.16, we have clarified that the stream protection rule, with 
enumerated exceptions, does not apply retroactively to existing or 
approved permits and permit applications. The applicability criteria 
adopted in final rule Sec.  701.16 increase regulatory certainty and 
address commenters' concerns about potential problems from the 
application of paragraph (a)(5) to existing permits.
Section 816.42: What Clean Water Act requirements apply to discharges 
of my operation?
    This section requires discharges from surface coal mining 
operations to be in compliance with water quality standards and 
effluent limitations established in NDPES permits and that any 
discharges of overburden or fill material must be made in compliance 
with permits issued pursuant to section 404 of the Clean Water Act. As 
discussed in the preamble to the proposed rule, we proposed to re-
designate and modify previous Sec.  816.42.\660\ We also proposed to 
replace the reference to the effluent limitations in 40 CFR part 434 
with reference to the effluent limitations established in the NDPES 
permit for a specific operation. Many commenters, including one from 
another federal agency, supported the modifications because these 
changes make our regulations consistent with the policy and practice of 
the U.S. Environmental Protection Agency.
---------------------------------------------------------------------------

    \660\ 80 FR 44436, 44549 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several commenters requested that we modify the final rule to 
clarify that an operator must comply with the effluent limitations 
established in the NPDES permit and all other water quality standards. 
We agree that this distinction is necessary. In response to comments 
received, and to clarify who will enforce Clean Water Act requirements 
applicable to discharges associated with surface and underground mining 
activities, we have added new rule text at Sec.  816.42(a)(1), (a)(2), 
(b), (c) and (d). These sections are discussed in more detail in the 
general comments found in Part IV.G., of this preamble. The language 
added to final rule Sec.  816.42(d) requires the SMCRA regulatory 
authority to coordinate with the appropriate Clean Water Act 
authorities to determine whether there have been violations of the 
Clean Water Act. The SMCRA regulatory authority must take enforcement 
or other action as appropriate in accordance with the terms of the 
SMCRA permit. This section does not preclude the SMCRA regulatory 
authority from performing the statutory obligation to initiate 
immediate enforcement action when any ``permittee is in violation of 
any requirement of this Act, which condition, practice, or violation 
also creates an imminent danger to the health or safety of the public, 
or is causing, or can reasonably be expected to cause significant, 
imminent environmental harm to land, air or water resources . . . .'' 
\661\
---------------------------------------------------------------------------

    \661\ 30 U.S.C. 1271(a)(2).
---------------------------------------------------------------------------

    Additionally we have modified paragraph (g) to better track the 
language of section 303(c) of the Clean Water Act.\662\
---------------------------------------------------------------------------

    \662\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

Section 816.43: How must I construct and maintain diversions?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our previous regulation at Sec.  816.43.\663\ After evaluating 
the comments that we received, we have made significant modifications 
to the final rule to categorize and clarify the specific requirements 
for each of the three different types of diversions. These changes and 
relevant comments are discussed below. Furthermore, as a result of 
these changes we have re-designated many of the proposed paragraphs 
within the final rule.
---------------------------------------------------------------------------

    \663\ 80 FR 44436, 44549-44550 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Additionally, we have added ``tribal'' to the list of laws and 
regulations at final paragraph (a)(5)(iv).
Final Paragraph (a): Classification
    Several commenters expressed confusion about the relationship 
between Sec.  816.43(a) and the provisions of Sec. Sec.  780.28 and 
816.57. Commenters' confusion appears to stem from the fact that 
``diversion'' as it is defined in our existing regulations covers a 
variety of different types of water conveyance structures. 
``Diversion'' is defined in Sec.  701.5 of the existing regulations as 
a ``channel, embankment, or other manmade structure constructed to 
divert water from one area to another.'' This broad definition includes 
channels designed to keep water from entering the disturbed area, known 
as ``diversion ditches'' within the regulated community. Our definition 
also includes the internal drainage system conveyances and channels 
within the disturbed area that act to transport water for sedimentation 
control and surface water runoff control. Furthermore, still other 
diversions, including those discussed in Sec. Sec.  780.28 and 816.57, 
are streams that have been relocated from their original position to 
allow for mining. All of these types of diversions may be further 
subdivided as ``permanent diversions'' or ``temporary diversions.'' In 
final rule Sec.  701.5, we define ``temporary diversions'' to mean ``a 
channel constructed to convey streamflow or overland flow away from the 
site of actual or proposed coal exploration or surface coal mining and 
reclamation operations. The term includes only those channels not 
approved by the regulatory authority to remain after reclamation as 
part of the approved postmining land use.''
    Because the definition of ``diversion'' under our regulations 
includes many types of manmade structures constructed to transport 
water, we have added paragraphs (a)(1), (2), and (3) to specifically 
categorize diversions. This should eliminate the confusion expressed by 
the commenters.
     In final paragraph (a)(1), we prescribe the requirements 
for diversion ditches. Diversion ditches may be temporary or permanent 
ditches that convey water not impacted by the mining operation around 
disturbed areas, bypassing siltation structures.

[[Page 93276]]

     In final paragraph (a)(2), we prescribe the requirements 
for stream diversions. Stream diversions are temporary or permanent 
stream relocations. Temporary stream diversions may be further 
characterized consistent with the requirements of Sec.  780.28(f), 
which sets out specific requirements for temporary stream diversions in 
place for more than three years.
     In final paragraph (a)(3), we prescribe the requirements 
for conveyances or channels within the disturbed area. These diversions 
include all other conveyances, temporarily or permanently constructed, 
within the disturbed area to convey surface water runoff and other 
flows from or across disturbed areas to siltation structures during 
mining. Following mining and reclamation, permanent conveyances and 
channels that are retained to support the postmining land use will 
remain, but the siltation structures will be removed as required by the 
reclamation plan.

To clarify further, we have described the differences between temporary 
and permanent diversions for each of the three types of diversions. 
Paragraph (a) classifies each of the types of diversions, contains 
regulations applicable to all three types of diversions, the two 
subsets of each type--temporary and permanent diversions--and, as 
specified in paragraph (a)(2), references the additional requirements 
that apply if the diversion involves a perennial or intermittent 
stream, consistent with the requirements of final Sec. Sec.  780.28 and 
816.57.
    As part of the clarification and classification, we have moved 
proposed paragraph (c) and divided it into two parts: Final paragraph 
(a)(1) entitled ``Diversion Ditches'' and final paragraph (a)(3), 
entitled ``Conveyances or Channels within the Disturbed Area.'' We did 
this because the conveyances or channels identified in proposed 
paragraph (c) included both flows diverted from disturbed areas as well 
as impacted flows from within the disturbed area. As commenters pointed 
out, discussing both types of diversions was confusing. In the final 
rule, by setting out the three categories of diversions in paragraph 
(a), we clearly distinguish between the various types of diversions 
based upon their specific functions. As commenters have asserted, it is 
important for us to make such distinctions so that the regulatory 
community can confidently identify the standards that apply to each 
type of diversion.
    Several commenters claimed that using the term ``diversions'' of 
perennial and intermittent streams in proposed paragraph (b) was 
confusing because there is an alleged overlap and potential conflict 
between Sec.  816.43 and proposed Sec. Sec.  780.28 and 816.57, which 
prescribe requirements for stream relocations, also known as stream 
diversions. These commenters advocated removing references to stream 
relocations from this section. Our response is two-fold. First, the 
diversion classification system established in our final rule should 
eliminate the commenters' confusion. Second, there is no need to remove 
the requirements for stream relocations from this section. Final Sec.  
816.43 is broad in scope and sets out specific requirements for the 
design, location, construction, maintenance, and use of all the various 
types of diversion, including stream relocations. As discussed above, 
we identified three categories of diversions, each with two subsets: 
Temporary or permanent. Many of the requirements in this section apply 
to all or most of these categories. Therefore, it is logical for us to 
place these requirements in one section. In contrast, the relevant 
portions of Sec. Sec.  780.28 and 816.57 that deal with stream 
diversions set forth additional permitting and performance standards 
that apply exclusively to perennial and intermittent streams. Paragraph 
(a)(2) of Sec.  816.43 specifies that when a permittee diverts 
perennial and intermittent streams, it must satisfy not only the 
requirements of this section but also those of Sec. Sec.  780.28 and 
816.57.
    Some commenters recommended that we consolidate proposed Sec.  
816.57(b)(3) and previous Sec.  816.43(b)(4) which required a qualified 
professional engineer to certify that the stream diversion has been 
constructed in accordance with the design approved in the permit and to 
certify that it meets all the engineering-related requirements of the 
regulations. The commenters identified proposed Sec.  816.43(b) as an 
appropriate place to do this. Similarly, another commenter asked for 
assurance that we require a qualified professional engineer to certify 
all diversions, especially diversions affecting streams. It is not 
necessary to incorporate redundant regulations in multiple locations. 
Because the requirements for engineer certification of diversions apply 
only to stream diversions, we have retained those requirements in final 
Sec.  816.57(c)(2). Although we incorporate the requirement by 
reference in paragraph (a)(2) of final Sec.  816.43, we do not repeat 
it. We also decline to require the certification of all diversions as 
one commenter suggested. As discussed more fully in the preamble to 
final rule Sec.  816.57(c), we intend for the certification of stream 
diversions to verify that the permittee has re-established the ``form'' 
of the stream. Such a certification is essential for stream diversions 
because restoration of ``form'' is critical to the return of hydrologic 
function and ecological function. In contrast, we are not requiring 
restoration of hydrologic function and ecological function for 
diversion ditches and conveyances and channels within the disturbed 
area because these two types of diversions are not intended to serve as 
a surrogate for an existing intermittent and perennial stream. Rather, 
they are designed either to divert un-impacted water away from the 
disturbed area or to capture and transport water through the disturbed 
area to a siltation structure. Thus, the normal inspection process 
should adequately verify that diversion ditches and conveyances or 
channels within the disturbed area have been constructed and maintained 
as designed. We decline, consequently, to require engineer 
certification of diversion ditches and internal conveyances and 
channels.
    As part of the classification and explanation of the three types of 
diversions we have moved and re-designated proposed paragraphs (a)(2) 
and (a)(7) to final paragraphs (c) and (d), respectively, because these 
requirements apply to all types of diversions.
Final Paragraph (b): Design Criteria
    Several commenters maintained that the requirements related to 
design criteria for temporary diversions should not apply to existing 
or already approved, but not yet constructed, diversions. These 
commenters asserted that immediate imposition of these requirements 
will result in numerous permit revisions and will place a tremendous, 
unnecessary burden upon regulatory authorities, particularly in states 
that are currently implementing design criteria where no problems have 
occurred. In the final rule Sec.  701.16, we have clarified that the 
stream protection rule, with enumerated exceptions, does not apply 
retroactively to existing or approved permits and permit applications. 
As discussed elsewhere in this preamble, the applicability criteria 
adopted in final rule Sec.  701.16 increase regulatory certainty and 
address commenters' concerns about disruptions and costs for permit 
applicants and the regulatory authority.
    Some commenters recommended that some of the design criteria 
imposed in

[[Page 93277]]

proposed Sec.  816.43(a), now paragraph (b), should apply only to 
regions that are experiencing diversion failures. As discussed in the 
preamble to the proposed rule,\664\ past diversion failures have 
significantly contributed to failures of larger structures downstream--
such as siltation structures. In the past, the cumulative effect of a 
failure of a diversion followed by a failure of larger structures 
downstream has resulted in adverse social, economic, and environmental 
effects. Thus, the potential for diversion failures is a threat to the 
environment and surrounding communities absent reasonable regulation, 
such as the design criteria in final paragraph (b). Therefore, we 
proposed, and are finalizing, design criteria that reasonably minimize 
the potential for diversion failure, regardless of the location of the 
diversion. Minimizing the potential for diversion failure will reduce 
the possibility of failures to downstream siltation structures, and the 
resulting possibility of offsite impacts that could lead to material 
damage to the hydrologic balance outside the permit area. Commenters' 
suggestions that the criteria should apply only if diversion failures 
occur in a specific region is unreasonable and inconsistent with the 
purposes of the Act \665\ because waiting for a failure to occur in an 
area before addressing failures is not an appropriate response to a 
known and demonstrated hazard. Aside from speculative comments that 
these events are purely regional issues, commenters did not attempt to 
demonstrate that the likelihood of diversion failures in their regions 
is so remote that these regulatory changes are unnecessary. Thus, with 
the exception of re-designation of the paragraphs and plain language 
modifications, we have finalized the design criteria as proposed.
---------------------------------------------------------------------------

    \664\ 80 FR 44436, 44549-44550 (Jul. 27, 2015).
    \665\ See 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

    As discussed in the preamble to proposed Sec.  816.43(c),\666\ we 
made two requests for comment. First, we asked for comment on whether 
we should revise proposed paragraph (c) to apply the same design 
criteria for temporary and permanent diversions of miscellaneous flows 
as we apply to temporary and permanent diversions of perennial and 
intermittent streams. This would result in temporary diversions of 
miscellaneous flows being designed and constructed to safely pass the 
peak runoff from a 10-year, 6-hour precipitation event, rather than a 
2-year, 6-hour precipitation event. Additionally, this would require 
permanent diversions of miscellaneous flows to be designed and 
constructed to safely pass the peak runoff from a 100-year, 6-hour 
precipitation event as opposed to a 10-year, 6-hour precipitation 
event.
---------------------------------------------------------------------------

    \666\ 80 FR 44436, 44550 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several commenters opposed adopting increased design criteria for 
miscellaneous flows, and no commenters supported the change. We have 
eliminated references to ``miscellaneous flows'' in the final rule 
because this general term is now subsumed by the distinct categories of 
diversions we defined in paragraph (a) of the final rule. Final 
paragraph (b) prescribes a single set of design criteria to all three 
categories with one important distinction. That difference is that the 
flow capacity for stream diversions includes flow in the flood-prone 
area, while flow capacity for diversion ditches and conveyances or 
channels within the disturbed area includes only in-channel flow, with 
sufficient freeboard to prevent out-of-channel flow. This distinction 
is necessary because only stream diversions are intended to function as 
natural streams. We are also adopting separate design criteria 
standards for temporary and permanent diversions as proposed. 
Therefore, the design event for all temporary diversions will be the 2-
year, 6-hour precipitation event and the design event for all permanent 
diversions will be a 10-year, 6-hour precipitation event.
    We also invited comment on whether the design event for a temporary 
diversion should be raised from a 10-year, 6-hour precipitation event 
to a 25-year, 6-hour precipitation event to provide an added margin of 
safety. Many commenters opposed raising the design event. One commenter 
opined that a 25-year, 6-hour design event will result in larger 
channels, additional riprap, and higher costs. Another commenter stated 
that a typical diversion will result in a wider channel requiring 
increased cut and fill volumes for construction. The commenter added 
that it has not experienced any failures or breaches of temporary 
diversions designed for the 10-year 6-hour event and thus argued that 
altering the design criteria would not provide any additional 
environmental protection or benefit. Another commenter asserted that 
the regulatory authority should retain discretion to increase design 
standards based on sufficient local or regional data demonstrating the 
need. Some commenters argued that the increasing unpredictability of 
precipitation events necessitates a 25-year, 6-hour precipitation 
design event. However, precipitation events have been, and remain, 
inherently unpredictable.
    After reviewing and considering all the comments we received in 
response, we have determined that the 10-year, 6-hour precipitation 
event is a sufficient minimum design criterion. We concur that a 25-
year, 6-hour precipitation design event is not necessary to provide a 
sufficient added margin of safety. The final rule imposes new and more 
protective design and performance criteria for temporary diversions. 
Furthermore, sediment control measures within the permit area will may 
capture additional surface runoff. These additional measures will 
provide an added margin of safety without raising the design event.
    We replaced the term ``biological condition'' with ``biology'' in 
paragraph (b)(1)(ii) of the final rule to conform to other changes 
within the final rule. Specifically, we are no longer assessing the 
biological condition of all intermittent streams. However, as explained 
in the preamble discussion of final rule Sec.  780.19(c)(6), we are 
requiring the cataloging and monitoring of the biology of intermittent 
streams.
Section 816.45: What sediment control measures must I implement?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our regulations at Sec.  816.45 \667\ about the sediment control 
measures an operator must implement within the disturbed area of the 
permit. After evaluating the comments that we received, we are adopting 
the section as proposed, with the following explanations and 
exceptions.
---------------------------------------------------------------------------

    \667\ 80 FR 44436, 44550 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Final paragraph (a) requires the use of the best technology 
currently available in the design, construction, and maintenance of 
sediment control measures. We have modified proposed paragraph (a)(2) 
by deleting the phrase ``more stringent of'' and replaced it with the 
phrase ``the applicable effluent limitations.'' This change renders the 
regulation consistent with paragraph (a) of Sec.  816.42, which 
requires compliance with applicable water quality standards and 
effluent limitations.
    In final paragraph (b), we listed seven potential sediment control 
methods. We made a minor word change in the introductory paragraph (b) 
to remove the phrase ``and adjacent to'' that could be misinterpreted 
to apply to undisturbed areas. This change makes it clear that sediment 
control measures are carried out only on the disturbed areas, unless 
otherwise provided.

[[Page 93278]]

    We modified final paragraph (b)(4) by adding ``surface'' and ``from 
undisturbed areas'' to clarify that this paragraph refers only to 
surface runoff from undisturbed areas. Likewise, we revised paragraph 
(b)(5) to clarify that surface runoff from undisturbed areas is what is 
being conveyed.
    As proposed, paragraph (b)(7) stated that ``treating with 
chemicals'' is allowed. This statement could have been misconstrued as 
allowing treatment of entrained sediment and suspended solids to occur 
outside of sediment ponds. Therefore, we have added language to clarify 
that this type of treatment of surface runoff must occur in sediment 
ponds and that treatment cannot be carried out by other means, such as 
by broadcasting chemicals on the ground, or within other conveyances. 
We have also revised this paragraph to allow the use of flocculants, as 
well as other types of chemicals.
    We received comments that proposed paragraph (b)(8), ``treating 
mine drainage in underground sumps,'' is considered processing waste 
water and would not be subject to oversight under this section. We 
agree and deleted paragraph (b)(8) from the final rule.
Section 816.46: What requirements apply to siltation structures?
Final Paragraph (a): Scope
    Paragraph (a) sets out the scope of the section. It provides 
specific exceptions to the requirements which follow. As proposed, 
paragraph (a) used the term ``disturbed areas'' to describe the areas 
subject to these exceptions. However, the term ``disturbed areas'' did 
not appear anywhere else in the section. Rather, as proposed, this 
section described the activities subject to the requirements of this 
section as activities that will ``disturb the land surface.'' For this 
reason in paragraph (a) of the final rule, we have substituted the 
phrase ``disturb the land surface'' for ``disturbed areas.''
Final Paragraph (c): Sediment Ponds
    Paragraph (c)(1) includes a requirement that permittees locate 
sediment ponds as near as possible to the disturbed area and outside 
perennial or intermittent stream channels unless the regulatory 
authority approves of the location in accordance with Sec. Sec.  780.28 
and 816.57(h). In all cases, operators must construct sediment ponds as 
closely as possible to the downstream limit of the disturbed areas they 
serve. These requirements minimize, to the extent possible, adverse 
impacts to streams, particularly intermittent and perennial streams. 
Typically, sediment laden water is directed to the sediment ponds, and 
treated water is returned to the stream by constructed channels. 
Placing these structures as closely as possible to the outlet of the 
disturbed area will limit the length of these channels and help 
minimize any adverse effects. Shorter channels, moreover, require less 
maintenance, and are therefore, less susceptible to failure. Impacts to 
streams will also be minimized if sediment ponds are constructed 
outside perennial or intermittent channels. However, because it is not 
always possible to construct out-of-stream structures due to local 
topography, Sec. Sec.  780.28 and 816.57(h) of this rule provide that 
the regulatory authority can approve construction in stream channels.
    One commenter suggested that this paragraph be removed because the 
Clean Water Act, and not SMCRA, governs the location of sedimentation 
ponds. The commenter pointed out that the Environmental Protection 
Agency's recent Clean Water Rule: Definition of ``Waters of the United 
States'' \668\ provides for locating structures of this type in these 
areas. The commenter implied that the Clean Water Act permit will be 
adequate for governing the placement of sediment ponds and alleged that 
this section supersedes the Clean Water Act authority, violates section 
702 of SMCRA,\669\ and must be removed from the final rule. We 
disagree. Section 507(b)(10) of SMCRA \670\ requires operators to 
provide the name and location of the surface stream or tributary into 
which surface drainage will be discharged in the permit application. 
Since authorizations, certifications, and permits required under the 
Clean Water Act may be obtained during or after completion of the SMCRA 
application review process, it is necessary in many cases that 
locations of these structures be identified before the Clean Water Act 
authority has made a determination. The requirements of this paragraph 
ensure that, subject to subsequent approval by the Clean Water Act 
authority, impacts to the stream will be minimized. Alternatively, the 
applicant can postpone submittal of the permit application until 
siltation structure locations have been approved by the Clean Water Act 
Authority.
---------------------------------------------------------------------------

    \668\ 80 FR 37054 (June 29, 2015).
    \669\ 30 U.S.C. 1292. (``Nothing in this chapter shall be 
construed as superseding, amending, modifying, or repealing the . . 
. Federal Water Pollution Control Act . . ., the State laws enacted 
pursuant thereto, or other Federal laws relating to preservation of 
water quality.'').
    \670\ 30 U.S.C. 1257.
---------------------------------------------------------------------------

Final Paragraph (e): Exemptions
    Paragraph (e) sets out conditions under which the regulatory 
authority may grant an exemption from the requirements of this section. 
The exemption applies when the area is small, and the operator can 
demonstrate that drainage from the disturbed area will comply with 
section 816.42. For small disturbed areas, more damage may be done by 
attempting to construct siltation structures than if the land was left 
undisturbed. Construction of siltation structures requires disturbance 
of land and, until vegetated, they contribute small amounts of 
sediment. As noted, the exemption does not apply if the drainage will 
not comply with section 816.42.
Section 816.47: What requirements apply to discharge structures for 
impoundments?
    To conform to plain language principles we have made minor, 
nonsubstantive changes to final rule Sec.  816.47. Otherwise, we are 
finalizing 816.47 as proposed. We received no comments on this section.
Section 816.49: What requirements apply to impoundments?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our regulations at Sec.  816.49, which set out the requirements 
for permanent and temporary impoundments.\671\ After evaluating the 
comments we received, we are adopting the section as proposed, with the 
following exceptions: First, we are basing the requirements in 
paragraph (a) on Mine Safety and Health Administration requirements and 
guidance instead of upon a Natural Resource Conservation Service 
publication; second, we are moving the design certification requirement 
set out in proposed paragraph (a) to the permitting section; third, we 
have added a table to Sec.  816.49(a)(3) to define the minimum 
freeboard hydrograph criteria for the design precipitation event and 
further clarified what adequate freeboard is; fourth, in response to 
comments from another federal agency we have modified the requirements 
for foundation investigations at paragraph (a)(4) and clarified that 
this includes abutments; and finally we have added the word 
``features'' to paragraph (b)(9). These changes and relevant comments 
are discussed below.
---------------------------------------------------------------------------

    \671\ 80 FR 44436, 44551-52 (Jul. 27, 2015).

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[[Page 93279]]

Final Paragraph (a): Requirements That Apply to Both Permanent and 
Temporary Impoundments
    We proposed to update the reference to the Natural Resource 
Conservation Service publication 210-VI-Technical Reference 60.\672\ 
One commenter noted that these requirements are duplicative of those 
required by the Mine Safety and Health Administration. The commenter 
claimed that duplicative requirements could create conflict between the 
operator and regulating authorities and result in increased permitting 
delays and costs. We agree that there should be a clear demarcation of 
requirements between the regulatory authority and other federal 
agencies. In connection with our review of this comment, we have also 
determined that the Federal Emergency Management Administration has 
applicable guidance that pertains specifically to these kinds of 
impoundments and that the Mine Safety Health Administration references 
that Federal Emergency Management Administration guidance in the 
administration of its program. For that reason, we have deleted 
references to 210-VI-Technical Reference 60, added references to the 
Mine Safety and Health Administration regulations at 30 CFR 77.216, and 
added language to clarify that an impoundment that includes a dam with 
a significant or high hazard potential classification under Sec.  
780.25(a) of the final rule must comply with the requirements set forth 
by the Mine Safety and Health Administration. These changes will 
clearly distinguish between the requirements imposed by the SMCRA 
regulatory authority and those that are imposed by other federal 
agencies and ensure that the permittee follows all of the most recent 
and appropriate technical guidance. Although, as discussed above, we 
have deleted references to Technical Reference 60, we have added a 
table to Sec.  816.49(a)(3) that defines the minimum spillway freeboard 
criteria for the design precipitation event based on Table 2-5 of 
Technical Reference 60 as those requirements are considered the minimum 
standard for such structures. We also require that impoundment 
embankments must have adequate freeboard to resist overtopping by waves 
in conjunction with a typical increase in water elevation at the 
downwind edge of any body of water, by sudden influxes of surface 
runoff from precipitation events, or by any combination of these 
effects.
---------------------------------------------------------------------------

    \672\ Id.
---------------------------------------------------------------------------

    To increase clarity, we have moved the design certification 
requirements of proposed paragraph (a)(3) to the permitting regulations 
at Sec.  780.25(c)(1)(i). The design certification requirements at 
Sec.  780.25(c)(1)(i) are substantively unchanged from proposed 
paragraph (a)(3).
    At the suggestion of another federal agency and to improve clarity 
we have modified final paragraph (a)(4) about foundations. We have 
added ``abutments'' to the requirement to ensure precautions are taken 
to fully prevent failure of impounding structure foundations. 
Additionally, we have added the phrase ``and control of underseepage'' 
at final paragraph (a)(4)(ii) to ensure that seepage failures of the 
dam foundation are prevented. This would include the potential for 
piping failures.
Final Paragraph (b): Requirements That Apply Only to Permanent 
Impoundments
    With the exceptions of changes to paragraphs (b)(2) and (b)(9), we 
have finalized paragraph (b) as proposed.
    Upon further evaluation and in consultation with the U. S. 
Environmental Protection Agency, we modified paragraph (b)(2) by 
replacing ``meet'' with the phrase ``not cause or contribute to a 
violation of'' and referenced the applicable section of the Clean Water 
Act to better conform with language used in section 303(c) of the Clean 
Water Act.\673\ Similar changes have been made throughout the final 
rule.
---------------------------------------------------------------------------

    \673\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    One commenter maintained that the requirements of proposed 
paragraphs (b)(7), (b)(8), and (b)(9) could delay reclamation or could 
make contemporaneous reclamation difficult because of an alleged 
additional need to haul large amounts of material at the end of mining. 
The commenter is mistaken because these provisions impose requirements 
that are merely clarifications and outgrowths of existing requirements. 
Paragraph (b)(7) requires a demonstration that approval of the 
impoundment will not result in retention of spoil piles or ridges that 
are inconsistent with the definition of approximate original contour. 
This demonstration adds no additional burden because Sec.  816.102 
already requires disturbed areas to be backfilled and graded to the 
approximate original contour. Paragraph (b)(8) requires a demonstration 
that approval of the impoundment will not result in the creation of an 
excess spoil fill elsewhere within the permit area. This provision is 
an outgrowth of existing Sec.  816.71 which requires the permittee to 
demonstrate that it has minimized excess spoil and requires that the 
final configuration of a fill must be suitable for the approved 
postmining land use. It is also consistent with the practice followed 
by the vast majority of the regulatory authorities located in mining 
areas that generate excess spoil. Paragraph (b)(9) requires a 
demonstration that the impoundment has been designed with dimensions, 
features, and other characteristics that will enhance fish and wildlife 
habitat to the extent that doing so is not inconsistent with the 
intended use. This demonstration adds no additional burden because it 
is consistent with the requirements at Sec.  780.16 to prepare, using 
the best technology currently available, a fish and wildlife protection 
and enhancement plan and Sec.  816.97(a) to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values to 
the extent possible and achieve enhancement of those resources where 
practicable. Thus, these three provisions merely clarify existing 
requirements. Any burden on the operator would result from its failure 
to comply with previous regulations and not the effect of finalized 
paragraphs (b)(7), (b)(8), and (b)(9). Significantly, the commenter has 
provided no information to support its claim that these criteria would 
delay reclamation or make reclamation or contemporaneous reclamation 
difficult or impossible. Nor has the commenter provided any information 
to substantiate the claim that these criteria will create a need, which 
did not exist prior to the rule, to haul large amounts of material. 
Finally, backfilling and reclamation plans as required in Sec.  
780.12(d) must contain contour maps, models, and cross-sections that 
show in detail the final configuration of the permit area by proper 
planning and spoil handling. If the operator has complied with this 
provision and properly planned its operation it should be able to 
minimize any costs associated with haulage.
    We have clarified paragraph (b)(9) by adding the word ``features'' 
so that this provision now reads ``[t]he impoundment has been designed 
with dimensions, features, and other characteristics that will enhance 
fish and wildlife habitat to the extent that doing so is not 
inconsistent with the intended use.'' This addition helps assure that 
the demonstration includes design features that promote habitat 
enhancement. As noted in the discussion of the definition of 
approximate original contour at Sec.  701.5, we fully appreciate the 
value of

[[Page 93280]]

impoundment features but not at the loss of restoring the postmining 
surface configuration to its approximate original contour.
    Some commenters claimed that Sec.  816.49 inappropriately focuses 
upon Appalachia. We disagree. The construction of permanent 
impoundments postmining is conducted outside Appalachia as frequently, 
if not more frequently, than inside Appalachia. For example, in the 
Illinois Basin where the water table lies near the surface, permanent 
impoundments are commonly used as a fish and wildlife enhancement. 
Thus, Sec.  816.49 will apply to all mining regions where permanent 
final pit impoundments are permitted.
    Several commenters expressed concern that these regulations may 
affect local water rights. We disagree and do not anticipate any 
infringement of local water rights as a result of this rule. The 
demonstrations required in this section require an analysis of the 
impact that the impoundment would have on post mining land use. The 
regulatory authority, which is in the best position to make this 
decision, will have the final authority to determine if any impact to 
local water rights may occur. Furthermore, aside from vague suggestions 
that revisions to Sec.  816.49 may affect water rights, commenters have 
provided no information, evidence, or analysis to indicate how 
revisions to Sec.  816.49 would affect water rights.
Section 816.55: What must I do with sedimentation ponds, diversions, 
impoundments, and treatment facilities after I no longer need them?
    In the previous and proposed rules, this regulation appeared in 
Sec.  816.56, but we are redesignating it as Sec.  816.55 in the final 
rule to accommodate the addition of a new Sec.  816.56, which concerns 
ephemeral streams, adjacent to Sec.  816.57, which concerns perennial 
and intermittent streams. One commenter asked us to draft more plain 
language revisions to our regulations in sections where we are making 
few or no substantive revisions. We have restructured and revised Sec.  
816.55 to implement that recommendation.
    In addition, we have made three substantive revisions to the 
proposed rule. First, we removed language that could have been 
interpreted to allow abandonment of the permit as an alternative to 
seeking bond release. Abandonment of a permanent program permit before 
final bond release would be inconsistent with both the termination of 
jurisdiction provisions of Sec.  700.11(d)(2) and the intent of section 
519 of SMCRA \674\ and Sec. Sec.  800.40 through 800.44, which 
establish bond release procedures and criteria to ensure compliance 
with the reclamation requirements of SMCRA and the applicable 
regulatory program.
---------------------------------------------------------------------------

    \674\ 30 U.S.C. 1269.
---------------------------------------------------------------------------

    Second, we have replaced an ambiguous reference to ``bond release'' 
in the previous and proposed rules with a reference to final bond 
release under Sec.  800.42(d). This revision is appropriate because 
Sec.  816.55 requires the removal of temporary structures and the 
renovation of permanent structures to meet program requirements for 
retention. Clearly, these requirements could not apply to applications 
for Phase I and II bond release.
    Third, we removed language that would have allowed retention of 
treatment facilities after final bond release. This language is 
inconsistent with final Sec.  800.18, which requires reclamation of the 
sites upon which treatment facilities are located and areas used in 
support of those facilities. In particular, Sec.  800.18(i)(3) 
specifies that the financial assurance will serve as the bond for 
reclamation of the portion of the permit area required for postmining 
water treatment facilities and access to those facilities.
Section 816.56: What additional performance standards apply to mining 
activities conducted in or through an ephemeral stream?
    Several commenters suggested that we should make clear which 
requirements in the rule apply to which types of streams. Specifically, 
these commenters noted proposed Sec.  816.57, which would have applied 
to activities in, through, or adjacent to perennial or intermittent 
streams, also contained cross-references to proposed Sec.  
780.28(b)(3), which would have addressed the establishment of riparian 
corridors for ephemeral streams. In response, we have added new Sec.  
816.56 that sets out the requirements specific to ephemeral streams, 
including the requirement to establish a 100-foot streamside vegetative 
corridor that complies with the standards in Sec.  816.57(d)(1)(iv) 
through (4) if activities are conducted through an ephemeral stream. 
The comparable requirements for the streamside vegetative corridors for 
intermittent and perennial streams are still found in Sec.  816.57.
    In the proposed rule, we invited comment on whether we should 
extend to ephemeral streams all the protections we give to perennial 
and intermittent streams. We received a variety of comments advocating 
equal protection of all stream types and many comments opposing the 
extension to ephemeral streams of the protections we give to 
intermittent and perennial streams. After review of the comments, we 
have decided not to extend the same protections to ephemeral streams 
that we do to intermittent and perennial streams. However, consistent 
with Part VII of the preamble to the proposed rule,\675\ in response to 
scientific literature about the benefits of headwaters to essential 
biological and ecological functions, we are extending some additional 
protections (postmining surface drainage pattern and stream-channel 
configuration and establishment of streamside vegetative corridors) to 
ephemeral streams that our previous rules do not afford.
---------------------------------------------------------------------------

    \675\ 80 FR 44436, 44451-44453 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Another commenter raised a concern that requiring uniform 
restoration of biological components in ephemeral streams is not 
feasible and asked for a clarification that this requirement does not 
apply to ephemeral streams. This commenter is correct that we did not 
propose to require the operator to restore the ecological function of 
ephemeral streams. For additional information as to the protections 
extended to ephemeral streams, you may review the preamble to the 
proposed rule at Part VII, B, ``What specific rule changes are we 
proposing with respect to ephemeral streams?'' \676\
---------------------------------------------------------------------------

    \676\ 80 FR 44436, 44452-44453 (Jul. 27, 2015).
---------------------------------------------------------------------------

    One commenter suggested that a valid reason for not providing the 
same protection to ephemeral streams is the increased cost associated 
with protection and reconstruction to the same standard as intermittent 
and perennial streams. As previously stated, we are not affording the 
same protections to ephemeral streams as intermittent or perennial 
streams. Also we note that changes in the definitions of intermittent 
and ephemeral streams in the final rule, specifically the removal of 
the one square mile watershed criteria, will result in many streams, 
particularly those in the western region of the country, that were 
previously characterized as intermittent under the current definition 
being reclassified as ephemeral under the final rule. In circumstances 
where this occurs and where a stream is no longer defined as 
intermittent, the level of protection for that stream may be reduced, 
which could also reduce the cost necessary to protect or reconstruct 
it.
    One commenter suggested that, if we did not extend the same 
protections to ephemeral streams that we do to intermittent and 
perennial streams, we

[[Page 93281]]

should alternatively consider providing more stringent protections for 
ephemeral streams that are located within watersheds that are 
relatively undisturbed, diverse, part of functioning systems, or 
watersheds that support federally-protected aquatic species. Although 
we understand the commenter's concerns, the protections we have added 
for ephemeral streams will provide better protection than under the 
previous rule. In particular, scientific literature supports the 
protections that we are extending to ephemeral streams, particularly 
the reestablishment of the streamside vegetative corridor: These 
streams, along with their naturally occurring vegetation provide 
significant exports to the downstream habitat and higher order biomass 
that includes leaf litter breakdown and biomass production.\677\ To the 
extent the commenter is concerned with aquatic species protected under 
the Endangered Species Act, this rule does not supersede the 
requirements of the Endangered Species Act. Compliance with that law 
may result in additional protections if a threatened or endangered 
species is present.
---------------------------------------------------------------------------

    \677\ Ralphael D. Mazor, et al., Integrating intermittent 
streams into watershed assessments: Applicability of an index of 
biotic integrity. Freshwater Science, 33.2. (2014) pgs. 459-474.
---------------------------------------------------------------------------

Section 816.57: What additional performance standards apply to mining 
activities conducted in or through a perennial or intermittent stream 
or on the surface of land within 100 feet of a perennial or 
intermittent stream?
    We have changed the structure of Sec.  816.57 in the final rule. In 
order to make it easier to track the responses to various comments 
received on proposed Sec.  816.57, we are providing the following 
summary of the changes to this final section:
     We have clarified the title of Sec.  816.57 to specify 
that this section applies only to mining activities conducted in, 
through, or on the surface of land within 100 feet of a perennial or 
intermittent stream.
     We have moved the general prohibition on mining within 100 
feet of a perennial or intermittent stream from proposed paragraph 
(a)(1) to final paragraph (b), changed the title of final paragraph (b) 
to reflect the substance of the prohibition, and changed the term 
``bankfull'' to ``ordinary high water mark'' in the same paragraph.
     We have moved the ``Clean Water Act requirements'' from 
proposed paragraph (a)(2) to final paragraph (a)(1), clarified the 
title of final paragraph (a)(1) to reflect plain language principles, 
and added final subparagraph (a)(2) to clarify that compliance with the 
Clean Water Act under final subparagraph (a)(1) requires compliance 
with applicable water quality standards.
     We have split the requirements of proposed paragraph (b) 
among multiple paragraphs. Proposed paragraph (b)(1) has been deleted 
in the final rule because it simply stated that you must comply with 
specific provisions of your permit, which goes without saying. Proposed 
paragraph (b)(2) is split among final paragraphs (d), (e), (f), and 
(g). Specifically, proposed paragraph (b)(2)(i) is final paragraph (e), 
part of proposed paragraph (b)(2)(ii) is final paragraph (d), part of 
proposed paragraph (b)(2)(ii)(A) is final paragraph (f), and proposed 
paragraphs (b)(2)(ii)(B) through (D) now form parts of final rule 
paragraphs (f) through (g).
     Because we have split paragraph (b) over multiple 
paragraphs, we have moved the prohibition on placement of sedimentation 
control structures from proposed paragraph (c) to final paragraph (h).
     We have changed the terms ``sedimentation control'' and 
``sedimentation pond'' to ``siltation structure'' throughout final 
paragraph (h).
     We have added final paragraph (h)(1)(ii) in response to 
comment.
     We have modified final paragraph (h)(2), which was 
proposed paragraph (c)(2), in multiple places: First, we have added the 
requirement that the exceptions from the prohibitions only apply if 
approved in the permit; second, we have added coal mine waste refuse 
piles and coal mine waste impounding structures in steep slope areas as 
an exception; and third, we have added a demonstration requirement and 
a requirement that the regulatory authority make a written finding.
     We have added the term ``coal mine waste refuse pile'' to 
final paragraph (h)(3)(ii), which was proposed paragraph (c)(3)(ii).
     We have changed the term ``coal mine waste disposal 
structure'' to ``coal mine waste impounding structure'' in final 
paragraph (h)(3)(ii), which was proposed paragraph (c)(3)(ii).
     We have changed the phrase ``coal mine waste disposal 
structure'' in proposed paragraph (c)(3)(iii) to ``coal mine waste 
structure'' in final paragraph (h)(3)(iii).
     We have added final paragraph (h)(3)(iii)(A).
     We corrected cross-references as needed.
    Before addressing some of these more specific changes, we address 
general comments about the section below.
    Many commenters requested that we clarify what standards apply to 
perennial and intermittent streams and what standards apply to 
ephemeral streams. As discussed in the preamble to new Sec.  816.56, we 
have removed the standards for ephemeral streams that were found in 
proposed Sec.  816.57. As finalized, therefore, Sec.  816.57 describes 
only additional performance standards that apply to activities in, 
through, or within 100 feet of a perennial or intermittent stream. 
Furthermore, we clarified in the title of Sec.  816.57 that applies 
only to mining activities conducted in, through, or within 100 feet of 
a perennial or intermittent stream. We also changed the title of final 
paragraph (b) to reflect the substance of the prohibition in Sec.  
816.57: This section is a prohibition on mining in or within 100 feet 
of a perennial or intermittent stream. Commenters can now easily 
determine the standards applicable to perennial and intermittent 
streams and the standards applicable to ephemeral streams by reviewing 
the respective sections on each.
    Some commenters requested that we clarify which stream types 
require the establishment of the 100-foot streamside vegetative 
corridor. This corridor is required for all stream types: Section 
816.56(c) contains the requirements for ephemeral streams, and Sec.  
816.57(d) contains the requirements for intermittent and perennial 
streams.
    Likewise, a commenter specifically asked for clarification as to 
which streams require restoration of ecological function. The 
restoration of ecological function is only required for perennial and 
intermittent streams; therefore, it is discussed only in Sec. Sec.  
816.57 (performance standards) and 780.28 (permit application 
requirements). Similarly, the requirements to restore or improve the 
form, hydrologic function (including flow regime), streamside 
vegetation, and ecological function of the stream after you have mined 
it apply to affected stream segments of perennial and intermittent 
streams.
    One commenter claimed that this rulemaking does not reduce the 
destruction of streams or improve stream restoration, as allegedly 
demonstrated by the most recent assessment of the impacts from 
underground coal mining and mine subsidence on streams in Pennsylvania. 
We appreciate this comment as it highlights the fact that there is a 
real need to better protect streams because, under the previous 
regulations, streams are being impacted. This rulemaking

[[Page 93282]]

will address situations such as those cited by the commenter in a 
number of ways. First, final Sec.  780.28(e)(1) requires that an 
operator make one or more of thirteen demonstrations to better ensure 
that the hydrologic function and ecological function of stream segments 
can be restored if the operator plans to mine though or permanently 
divert a stream, construct an excess spoil fill, coal mine waste refuse 
pile, or impounding structure, or conduct any other activity within or 
near a perennial or intermittent stream. Second, paragraphs (e), (f), 
and (g) requires an operator to demonstrate that physical form, 
hydrologic function, and ecological function of perennial or 
intermittent streams have been adequately restored after mining and 
reclamation are complete. These complementary requirements--increased 
planning to protect streams before they are affected and stronger 
reclamation standards for those that are affected--strike a balance 
that allows mining while ensuring that restoration of affected streams 
can be, and is being achieved.
    A commenter argued that this section takes an unnecessary one-size-
fits-all approach and that biological components of perennial, 
intermittent, and ephemeral streams differ significantly. For similar 
reasons, another commenter claimed that requiring the same protections 
for all streams, including ephemeral ones, is not practical. As noted 
above, we agree with these commenters only to the extent that the 
protections for ephemeral streams should be different than for 
perennial and intermittent streams and have clarified the different 
requirements by adding Sec.  816.56, which specifies the requirements 
for ephemeral streams, and by revising this section to clarify that it 
applies to perennial and intermittent streams. These differing 
requirements are one example of why this rule does not approach the 
regulation of streams in a one-size-fits-all manner. More importantly, 
however, this section and Sec.  780.28 do not create one-size-fits-all 
requirements for perennial or intermittent streams; instead, they 
incorporate site specific requirements and demonstrations when mining 
is planned in or near an intermittent or perennial stream, allowing for 
differences in topography, geology, and climate in the various regions 
of the country. For instance, paragraphs (c) and (d) of Sec.  780.28 
require that plans for individual mines be designed to restore the 
surface drainage patterns and stream channel configurations and 
establish vegetative corridors, and paragraphs (c) and (d) of this 
section require that these features actually be constructed consistent 
with these plans. Specific drainage patterns and vegetative corridors 
will vary and this rule allows for appropriate tailoring to individual 
circumstances while reducing adverse impacts to streams.
    Several commenters questioned the requirement of this section to 
achieve ecological function. As support, these commenters often cited 
judicial decisions, such as Ohio Valley Environmental Coalition (OVEC) 
v. Hurst,\678\ which they characterize as disallowing agencies' 
reliance on ``unproven and speculative mitigation measures.'' In OVEC, 
an agency issued a finding of no significant impact under the National 
Environmental Policy Act in reliance, in part, on a finding that 
mitigation measures would reduce the environmental impacts to an 
insignificant level. The court determined that this agency's 
consideration of mitigation measures as part of its cumulative impact 
analysis was inadequate because the agency did not support its claims 
that those mitigation measures would actually mitigate the impacts as 
claimed by the agency, or be successful. To the extent that this 
district court decision is even instructive to this rulemaking, we have 
adequately supported our approach and included measures to ensure its 
success. Notably, the final rule at paragraph (b) contains a general 
prohibition against mining through intermittent and perennial streams 
unless the permittee makes certain demonstrations prior to mining 
related to its ability to restore those streams. If the permittee 
cannot make those required demonstrations, the general prohibition on 
mining through those streams applies. This approach is supported by 
ample scientific literature that concludes that the most appropriate 
approach for protecting streams is a general prohibition of mining 
through perennial or intermittent streams but that exceptions can be 
made when streams can be restored to a certain level of stream 
health.\679\ The same general approach existed in our previous rules, 
but the measures in the previous rules for ensuring successful 
reclamation to ensure stream health were general in nature and lacking 
in effectiveness, as evidenced by our own oversight reports.\680\ The 
final rule clarifies and closely mirrors the requirements of sections 
515(b)(10), (16), and (24) of SMCRA which require, among other things, 
the use of the best technology currently available to minimize 
disturbances and adverse impacts to fish and wildlife and other 
environmental values.
---------------------------------------------------------------------------

    \678\ 604 F. Supp. 2d 860 (S.D. W. Va. 2009).
    \679\ Colleen E. Bronner, et al., An Assessment of U.S. Stream 
Compensatory Mitigation Policy: Necessary Changes to Protect 
Ecosystem Functions and Services. Journal of the American Water 
Resources Association (JAWRA) 49(2):449- 462. DOI: 10.1111/
jawr.12034. (2013) See also Palmer, Margaret A., and Kelly L. 
Hondula, Restoration as mitigation: Analysis of stream mitigation 
for coal mining impacts in southern Appalachia. Environmental 
science & technology 48.18 pgs.,10552-10560 (2014).
    \680\ Assessment of the WVDEP Trend Station 071, West Fork of 
Pond Fork Watershed, Boone County, West Virginia, September 21, 
2011.
---------------------------------------------------------------------------

    A commenter claimed that the proposed rule failed to address damage 
to the hydrologic balance from backfilling with coal combustion 
residues and that this constitutes a glaring omission. The commenter 
recommended that we establish a new part in the final rule text that 
addresses the placement of coal combustion residues in surface and 
underground mines. We did not include specific rule language addressing 
the placement of coal combustion residues because that activity is 
already indirectly covered in this rulemaking in sections such as Sec.  
780.12(d)(2)(iii), handling of acid-forming and toxic-forming materials 
to prevent the formation of acid or toxic drainage and to protect 
groundwater and surface water; Sec.  780.20, determination of the 
probable hydrologic consequences; and Sec.  780.21, preparation and 
review of the cumulative hydrologic impact assessment. However, in 
order to comprehensively address this issue, additional direct 
regulation of the placement of coal combustion residues on active and 
abandoned coal mines is better addressed in a separate rulemaking. Such 
a rulemaking is one of our priorities.\681\
---------------------------------------------------------------------------

    \681\ 80 FR 77709, 77803 (Dec. 15, 2015). (Unified Agenda of 
Federal Regulatory and Deregulatory Actions); see also 72 FR 12026 
(Mar. 14, 2007). (Advance Notice of Proposed Rulemaking, Placement 
of Coal Combustion Byproducts in Active and Abandoned Coal Mines).
---------------------------------------------------------------------------

Final Paragraph (a): Compliance With Federal, State, and Tribal Water 
Quality Laws and Regulations
    Proposed paragraph (a)(2), now final paragraph (a)(1), requires 
permittees to conduct surface mining activities in or affecting waters 
subject to the jurisdiction of the Clean Water Act only if they first 
obtain all necessary authorizations, certifications, and permits under 
the Clean Water Act. In the final rule, we have split proposed 
paragraph (a)(2) into two parts. Paragraph (a)(1) in the final rule is

[[Page 93283]]

substantively the same as proposed paragraph (a)(2), and specifies that 
all necessary authorizations, certifications, and permits required 
under the Clean Water Act must be obtained prior to conducting surface 
mining activities in or affecting an intermittent or perennial stream. 
For clarity, we added paragraph (a)(2) which requires that surface 
mining activities must comply with all applicable or state and tribal 
laws and regulations concerning surface water and groundwater. The use 
of the word applicable is important because these standards are not 
applicable to segments of streams that are buried, such as under an 
excess spoil fill, in accordance with the Clean Water Act and SMCRA. 
Additionally, in response to comments from other federal agencies we 
accounted for situations when states and tribes achieve primacy and 
implement laws or regulations related to surface water or groundwater.
    Together, final paragraphs (a)(1) and (a)(2) make clear that the 
operator must obtain all necessary authorizations, certifications, and 
permits under the Clean Water Act and conduct the mining activities in 
a way that meets the approved water quality standards required under 
the Clean Water Act. Paragraph (a)(2) is an outgrowth of the 
requirement under final paragraph (a)(1) that was proposed in paragraph 
(a)(2). Thus, the addition of final paragraph (a)(2) in the final rule 
is a clarification of the proposed requirement.\682\
---------------------------------------------------------------------------

    \682\ See 80 FR 44436, 44656 (Jul. 27, 2015). (``You may conduct 
surface mining activities in waters of the United States only if you 
first obtain all necessary authorizations, certifications, and 
permits under the Clean Water Act, 33 U.S.C. 1251 et seq.'') 
(emphasis added).
---------------------------------------------------------------------------

Final Paragraph (b): Prohibition on Mining in or Within 100 Feet of a 
Perennial and Intermittent Stream
    As discussed above, in the final rule, we moved the general 
prohibition on mining in or within 100 feet of a perennial and 
intermittent stream from proposed paragraph (a)(1) to final paragraph 
(b), changed the title of final paragraph (b) to reflect the substance 
of the prohibition, and changed the term ``bankfull'' to ``ordinary 
high water mark'' in the same paragraph. Proposed paragraph (a)(1), now 
final paragraph (b), prohibits surface mining activities in or through 
a perennial or intermittent stream or that would disturb the surface of 
land within 100 feet of a perennial or intermittent stream unless the 
regulatory authority authorizes that activity in the permit. We did not 
receive any comments on proposed paragraph (a)(1), and, we are adopting 
the section as proposed as final paragraph (b) with the two exceptions 
discussed below. First, in final paragraph (b), we have changed the 
title of proposed paragraph (a)(1) ``General prohibition'' to 
``Prohibition on mining in or within 100 feet of a perennial or 
intermittent stream.'' This change reflects the now clear separation 
between Sec.  816.56, which applies only to ephemeral streams, and 
Sec.  816.57. Second, as discussed in the preamble discussion of 
``ordinary high water mark'' in Sec.  701.5 of the final rule, one 
commenter suggested that the term ``ordinary high water mark'' is more 
commonly accepted and more easily determined than the term 
``bankfull.'' We agree and have revised references to ``bankfull'' 
throughout the final rule. We now require that the 100-foot distance be 
measured horizontally on a line perpendicular to the stream, beginning 
at the ordinary high water mark.
Final Paragraph (c): Postmining Surface Drainage Pattern and Stream-
Channel Configuration
    In section 780.28 of the proposed rule, we set out requirements for 
an application that proposes to mine through or divert a perennial, 
intermittent, or ephemeral stream.\683\ In order to make the applicable 
requirements clearer for the regulated public, we have added final 
Sec.  816.57(c)(1), which is similar to proposed Sec.  780.28(c). Final 
Sec.  816.57(c)(1) clarifies that if you mine through or permanently 
divert a perennial or intermittent stream, you must construct a 
postmining surface drainage pattern and stream-channel configurations 
that are consistent with the surface drainage pattern and stream 
channel configurations approved in the permit in accordance with 
section 780.28. The language of paragraph (c)(1) has, for clarity, been 
modified in that it specifically points out that construction of both 
the postmining surface drainage pattern and stream-channel 
configuration must meet the requirements approved in the permit under 
Sec.  780.28(c). The proposed language referenced some of the 
permitting requirements in Sec.  780.28(c) but not all. This revision 
clarifies that the construction or reconstruction of the stream channel 
must meet all standards set forth in the permit.
---------------------------------------------------------------------------

    \683\ 80 FR 44436, 44610.
---------------------------------------------------------------------------

    Proposed paragraph (b)(3), now final paragraph (c)(2), requires the 
certification by a professional, qualified engineer that a stream 
channel diversion or reconstructed stream channel has been constructed 
in accordance with the permit and that it meets all engineering 
requirements. One commenter claimed that this requirement will increase 
engineering review and other administrative tasks and costs. Also, the 
commenter alleged that previous regulations only required streams with 
drainage areas in excess of one square mile of drainage to be 
certified. While we recognize that additional effort will be required 
to obtain this certification, we have retained the requirement in the 
final rule as it ensures that the plan required under Sec.  780.28(c) 
will be fully implemented. Proper implementation is integral to the 
successful ecological development of the stream. Certifications are 
routinely required for other hydrology structures, such as siltation 
structures, sedimentation ponds, and impoundments; thus, this 
additional requirement would not require significantly more effort than 
was required under the previous regulations. We did, however, revise 
this section slightly to clarify that the certification requirement may 
be limited to the location, dimension, and physical characteristics of 
the stream diversion or channel.
Final Paragraph (d): Establishment of Streamside Vegetative Corridors
    Final paragraph (d) now contains the performance standards that we 
listed in proposed Sec.  780.28(b)(3). We made this change to reduce 
redundancy within Sec. Sec.  780.27(c) and 780.28(d) and provide one 
location for streamside vegetative corridor requirements. As discussed 
above, requirements for streamside vegetative corridors for ephemeral 
streams are now included in new Sec.  816.56(c). To the extent that the 
comments we received about performance standards are duplicative of 
comments received about the permitting section, such as comments 
inquiring why we refer to streamside vegetative corridors instead of 
the proposed term ``riparian corridors'' or the use of ``ordinary high 
water mark'' instead of ``bankfull elevation,'' please refer to the 
prior preamble discussions related to Sec.  701.5 and part 780. The 
performance standards at final Sec.  816.57(d) are substantially 
identical to the proposed language provided in Sec.  780.28(b)(3) with 
the exceptions described below.
    As discussed in the preamble to Sec. Sec.  780.27(c) and 780.28(d) 
of this final rule, several commenters alleged that we selected the 
100-foot width for the vegetative corridor arbitrarily. In the preamble 
to the proposed rule at Sec. Sec.  780.16 and 816.57(a), we explained 
the ecological and historical support for

[[Page 93284]]

selecting this buffer zone width.\684\ As we explained, this width is 
based upon scientific literature substantiating that a vegetative 
filter strip width of 100 feet generally will reduce sediment, thus 
eliminating many harmful pollutants. Additionally, studies of effective 
buffer widths for wildlife generally recommend wider buffers than those 
required for sediment control and protection of water quality. The 
minimum 100-foot buffer width we adopt in the final rule lies within 
the lower end of the range of recommended minimum widths for wildlife 
habitat and flood mitigation, in the middle of the range for sediment 
and nitrogen removal, and exceeds the range recommended for water 
temperature moderation, bank stabilization, and aquatic food web 
maintenance. Therefore, this width is an appropriate compromise that 
accomplishes various environmental and stability objectives and is 
consistent with section 102(f) of SMCRA, which requires a balance 
between environmental protection and the need for coal production.\685\ 
Similar to proposed Sec.  780.28(b)(3)(iii), final paragraph (d)(4) 
recognizes that streamside vegetative corridors are not required under 
certain circumstances such as when the land is prime farmland 
historically used for cropland.
---------------------------------------------------------------------------

    \684\ 80 FR 44436, 44494 and 44552 (Jul. 27, 2015).
    \685\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    Proposed Sec.  780.28(b)(3)(ii) would have required that the 
streamside vegetative corridor use only native species. A few 
commenters opined that revegetation within the streamside vegetative 
corridor using only native species may contradict what is recommended 
or requested by a Clean Water Act authority or the National Resources 
Conservation Service. We agree with these commenters in part. Final 
Sec.  816.57(d)(2)(i) requires the use of appropriate native species 
adapted to the area unless an agency responsible for implementation of 
section 404 of the Clean Water Act, 33 U.S.C. 1344, requires the use of 
a non-native species. The National Resources Conservation Service only 
issues recommendations. So, to the extent that a Clean Water Act 
authority requires the use of a recommendation to use non-native 
species made by the National Resources Conservation Service, it is 
allowable under our regulations. This change satisfies our objectives 
for improving reclamation while ensuring there is no conflict with the 
Clean Water Act.
    Final paragraph (d)(2)(ii) ensures that the species planted during 
reclamation are consistent with the revegetation plan approved in the 
permit. This new requirement is provided for clarity to ensure those 
species planted within the streamside vegetative corridor are those 
approved in the permit and are consistent with final Sec.  780.12 
(g)(1)(v).
    Many commenters argued that the proposed rule was too rigid and did 
not provide sufficient flexibility within the streamside corridor 
vegetation requirements to allow for differences in streams, soil, and 
climate conditions across the country. In response, final paragraph 
(d)(2)(iii) clarifies that the streamside vegetative corridors must 
include appropriate native hydrophytic vegetation, vegetation typical 
of floodplains, or hydrophilic vegetation characteristic of riparian 
areas and wetlands to the extent that the corridor contains suitable 
habitat for those species and the stream and the geomorphology of the 
area are capable of supporting vegetation of that nature. Similarly, 
paragraph (d)(3) waives the requirement of planting hydrophytic or 
hydrophilic species within those portions of streamside corridors where 
the stream, soils, or climate are incapable of providing the moisture 
or other growing conditions needed to support and sustain hydrophytic 
or hydrophilic species. However, the applicant must plant the corridor 
with appropriate native species that are consistent with the baseline 
information concerning natural streamside vegetation, unless otherwise 
directed by an agency responsible for implementing section 404 of the 
Clean Water Act.\686\ These additions will allow operators and 
regulatory authorities more flexibility to revegetate the streamside 
corridors to account for regional differences in hydrology, ecology, 
and climate while also imposing a uniform national standard.
---------------------------------------------------------------------------

    \686\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    A commenter also requested that we revise proposed Sec.  
780.28(b)(3), which required establishment of a riparian corridor at 
least 100 feet wide on each side of a perennial, intermittent, or 
ephemeral stream if mining activities were conducted in or within 100 
feet of the stream, to better reflect premining land uses or landowner 
preferences. The commenter specifically referred to premining 
situations where crops are planted within 100 feet on either side of an 
ephemeral, intermittent, or perennial stream or where the landowner 
would like for crops to be planted within 100 feet of a stream after 
reclamation. We find that no change is necessary in response to this 
comment. Proposed Sec.  780.28(b)(3)(iii)(A) and (B), which we are 
adopting as final Sec.  816.56(c)(4) for ephemeral streams and Sec.  
816.57(d)(4) for perennial and intermittent streams, adequately 
addresses the commenter's concerns. Specifically, final Sec. Sec.  
816.56(d)(4) and 816.57(d)(4) provide that the requirement for a 
streamside vegetative corridor does not apply to prime farmland 
historically used for cropland or to situations in which establishment 
of a streamside vegetative corridor comprised of native species would 
be incompatible with an approved postmining land use that is 
implemented before final bond release. Therefore, a landowner desiring 
to grow crops on land within 100 feet of a stream may do so, provided 
the regulatory authority approves a cropland postmining land use and 
the landowner actually implements that land use before final bond 
release.
    This commenter also suggested we consider adopting the protocol 
outlined in the U.S. Army Corps of Engineers permitting process for 
compensatory mitigation. We do not agree that adoption of the suggested 
protocol is appropriate. The final rule implements section 515(b)(24) 
of SMCRA,\687\ while the protocol suggested by the commenter governs 
implementation of section 404 of the Clean Water Act.\688\ Section 
515(b)(24) of SMCRA requires that, ``to the extent possible using the 
best technology currently available,'' surface coal mining and 
reclamation operations must ``minimize disturbances and adverse impacts 
of the operation on fish, wildlife, and related environmental values, 
and achieve enhancement of such resources where practicable.'' We find 
that adoption of a protocol intended for implementation of the Clean 
Water Act is not an appropriate means of implementing this provision of 
SMCRA, which does not mention compensatory mitigation. Moreover, our 
final rule is consistent with the Presidential Memorandum on Mitigating 
Impacts on Natural Resources from Development and Encouraging Related 
Private Investment,\689\ which mandates that the Department of the 
Interior, among other agencies, promote avoidance of impacts to ``land, 
water, wildlife, and other ecological resources (natural resources) 
caused by land and water-disturbing activities, and to ensure that any 
remaining harmful effects are effectively addressed, consistent with 
existing mission and legal authorities.'' \690\
---------------------------------------------------------------------------

    \687\ 30 U.S.C. 1265(b)(24).
    \688\ 33 U.S.C. 1344.
    \689\ Presidential Memorandum issued November 3, 2015. See also 
Secretarial Order No. 3330, Improving Mitigation Policies and 
Practices of the Department of the Interior (October 31, 2013); 600 
DM 6.
    \690\ Id. at Section 1.

---------------------------------------------------------------------------

[[Page 93285]]

    As proposed, Sec.  780.28(b)(3)(iii) listed three situations in 
which the streamside vegetative corridor requirements would not apply. 
With the exception of proposed Sec.  780.28(b)(3)(iii), this paragraph 
has now been redesignated as final Sec.  816.56(c)(4) for ephemeral 
streams and final Sec.  816.57(d)(4) for perennial streams. We did not 
adopt proposed Sec.  780.28(b)(3)(iii)(C), which expressly stated that 
the streamside vegetative corridor requirement does not apply to stream 
segments buried beneath an excess spoil fill, a coal mine waste refuse 
pile, or a coal mine waste impounding structure. We did not adopt this 
provision because it is self-evident that requirements specifically 
applicable to reconstructed streams, such as the streamside vegetative 
corridor revegetation requirements, do not apply to segments of streams 
that no longer exist because they have been buried as allowed by our 
regulations.
    The U.S. Fish and Wildlife Service recommended that we add 
additional criteria to proposed paragraph (b)(2)(ii), now final 
paragraph (d), to explicitly state that riparian zone plantings must 
meet applicable performance standards for stocking and survival. We did 
not adopt this recommendation because Sec.  816.116 applies to riparian 
zone plantings and contains sufficient standards for determining 
vegetation success. Thus, inclusion of revegetation success standards 
in Sec.  816.57 would be redundant.
    As mentioned above, proposed paragraph (b)(2) has been split 
between multiple paragraphs of the final rule. Proposed paragraph 
(b)(2)(i) is final paragraph (e), part of proposed paragraph 
(b)(2)(ii)(A) has moved to final paragraph (f), and proposed paragraphs 
(b)(2)(ii)(B) through (D) now form parts of final rule paragraphs (f) 
through (g). As discussed below, we changed the structure and substance 
of proposed paragraph (b)(2) to respond to comments.
    Proposed paragraph (b)(2) set forth the proposed requirements to 
restore the form and function of stream segments. Many commenters 
expressed their views of the relationship between the form and function 
of a stream. On one hand, many commenters claimed that restoration of 
the stream form should be considered adequate to achievement of 
ecological function. On the other hand, a commenter opined that a 
stream's form is generally not a proxy for its function. Another 
commenter recommended that the final rule require an operator to 
restore hydrologic function in addition to ecological function to 
ensure protection for this essential element of stream health. 
Similarly, several commenters opined that for bond release, the 
regulatory authority must consider whether the form, hydrologic 
function, and ecological function of intermittent or perennial stream 
segments have been appropriately restored or reconstructed because all 
three (form, hydrologic function, and ecological function) are integral 
to the demonstration of successful reclamation.
    As described at length in the preamble to the proposed rule, 
restoration of form alone has not been shown to provide assurance that 
function will return, especially when considering the extreme nature of 
the impacts of mining within the stream buffer.\691\ Thus, we are not 
removing the requirement for restoration of stream function. We do, 
however, agree with the commenters that restoration of stream function 
would be more clearly expressed by including separate requirements for 
hydrologic function and ecological function. Therefore, we have divided 
proposed paragraph (b)(2) into three paragraphs in which we include 
requirements to restore form in paragraph (e) and divide the 
requirement to restore stream hydrologic function into paragraph (f) 
and paragraph (g) about the restoration of ecological function. 
Notably, the restoration of form is a prerequisite for the restoration 
of hydrologic function and the restoration of hydrologic function is a 
prerequisite for restoration of ecological function.
---------------------------------------------------------------------------

    \691\ 80 FR 44436, 44438-44453 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (e): Restoration of Form
    ``Form'' for purposes of this section is defined in Sec.  701.5. We 
received no comments on proposed paragraph (b)(2)(i), now final 
paragraph (e), relating specifically to the restoration of form. As 
mentioned above, several commenters suggested that both form and 
ecological function need to be included as part of the evaluation of a 
stream before bond release is accepted. We agree and have modified the 
Phase I bond release criteria at Sec.  800.42(b)(1) to require the 
restoration of form of perennial and intermittent stream segments. We 
are reiterating this requirement in final paragraph (e), which also 
serves to incorporate a similar provision that was proposed as Sec.  
816.57(b)(2)(iii)(C), which required restoration of form for Phase I 
bond release.
Final Paragraph (f): Restoration of Hydrologic Function
    As discussed above, proposed paragraph (b)(ii) would have required 
the restoration of stream form and function. Although the proposed rule 
included provisions to measure the biological condition of a restored 
or reconstructed stream, it did not specifically discuss the hydrologic 
function of the stream except to note at proposed paragraph (b)(ii)(B) 
that the postmining function ``must be adequate to support the uses of 
that stream segment that existed before mining and it must not preclude 
attainment of the designated uses of that stream segment under section 
101(a) or 303(c) of the Clean Water Act before mining.'' Several 
commenters suggested that we should expand the provisions relating to 
stream function to include more hydrological information, such as the 
material composition of stream beds, flow patterns, water chemistry, 
and stream water temperature because ultimately, restoring ecological 
function is dependent on restoring these hydrological parameters. We 
agree that we should expand our treatment of stream function in order 
to properly account for conditions prior to mining and, as discussed, 
have divided stream function into hydrologic and ecological function. 
We have added paragraph (f) to require the restoration of hydrologic 
function. ``Hydrologic function'' is discussed in more detail in the 
preamble to the definition of that term in Sec.  701.5. In sum, 
hydrologic function includes total flow volume, seasonal variations in 
streamflow and base flow, and provision of the water needed to maintain 
floodplains and wetlands associated with the stream. Taken together, 
the restoration or reconstruction of the prerequisite ``form'' in 
paragraph (e) and ``hydrologic function'' in paragraph (f), means that 
the stream will have similar physical characteristics, pattern, 
profile, and dimensions as the stream in which mining activities were 
conducted in, through, or near. As explained in the preamble discussion 
of the definition of ``form'' this will include but not be limited to, 
a similar flood-prone area to bankfull width ratio (entrenchment), 
channel width to depth ratio, channel slope, sinuosity, bankfull depth, 
dominant in-stream substrate, and capacity for riffles and pools, as 
the stream in which mining activities were conducted.\692\ These 
additions clarify that hydrologic function includes, but is not limited 
to the restoration of the flow regime, except as otherwise approved by 
the regulatory authority under Sec.  780.28(e)(2). They provide 
sufficient

[[Page 93286]]

guidance on what is required to restore or reconstruct the form and 
hydrologic function of a stream.
---------------------------------------------------------------------------

    \692\ See also, Dave Rosgen, Applied River Morphology, Wildland 
Hydrology, Pagosa Springs, Colorado (1996).
---------------------------------------------------------------------------

    Final paragraph (f) also specifies that you must demonstrate 
restoration of the hydrologic function of a stream segment that has 
been affected by mining activities before you qualify for Phase II bond 
release under Sec.  800.42(c)(1). This language was added in response 
to comments that requested we consider what types of information should 
be considered for bond release relative to the restoration of ``stream 
function.'' As discussed in the preamble discussion of paragraph (e), 
Phase I bond release will not be permitted until reconstruction of the 
form of the stream is demonstrated and certified. We have also revised 
Sec.  800.42(c)(1)(ii), which establishes the criteria for bond release 
to include the requirement for the restoration of hydrologic function 
as a condition of Phase II bond release in order to better guarantee 
that reestablishment of hydrologic function is achieved. We are 
therefore requiring in Sec.  780.28(g) that the regulatory authority 
develop criteria for determining restoration of ecological function on 
a permit-specific basis. These criteria will help determine whether 
restoration is possible and whether the permit allowing mining through 
streams should move forward. These standards must also be in place to 
determine if ecological function has been restored during reclamation 
as required by final rule Sec. Sec.  780.28(g) and 816.57(g).
Final Paragraph (g): Restoration of Ecological Function
    Proposed paragraph (b)(2) required the restoration of stream form 
and function. Specifically it required the restoration of ecological 
function. In addition, proposed paragraph (b)(2)(ii) referred to 
specific provisions in the permitting requirements of proposed Sec.  
780.28(e)(1), related to the restoration of biological condition. As 
explained above, in the final rule, we have split the requirements 
pertaining to the restoration of stream form and function into three 
paragraphs--paragraphs (e) through (g). As revised, final paragraph (g) 
requires the restoration of the ecological function of a perennial or 
intermittent stream before final bond release may occur. As revised, 
paragraph (g) no longer contains a specific reference to biological 
condition or criteria for measuring ecological function. Instead, it 
cross-references Sec.  780.28(g), which contains these criteria. 
Consequently, all comments received on proposed Sec. Sec.  
816.57(b)(2)(ii)(B) through (D) that are related to determining whether 
ecological function has been restored are discussed in the preamble to 
Sec.  780.28.
    Numerous commenters objected to any requirement to demonstrate the 
restoration of the ecological function of perennial and intermittent 
streams. Some commenters suggested that a separate requirement for the 
restoration of ecologic function is not necessary because some western 
mines are already restoring the hydrologic form using geomorphic 
reclamation methods and some midwestern mines are restoring stream 
channels based on the U.S. Army Corps of Engineers permit requirements. 
These commenters allege that these practices should be sufficient to 
restore the stream to its form and function under SMCRA. We recognize 
that the techniques voluntarily employed in some western mines in the 
application of geomorphic reclamation principles and some midwestern 
mines that employ natural stream channel design for reconstructed or 
permanently diverted streams are the type of best technology currently 
available that this rule seeks to implement across all mining regions. 
We also understand that the frequency of mines using geomorphic 
reclamation is increasing and has been shown to result in more stable 
streams and facilitates reestablishment of ecological function. Even 
so, we do not have reliable evidence that reconstruction of the 
physical form or hydrologic function is common across all mining 
regions or that such reconstruction will necessarily result in 
successful restoration of ecological function. Thus, these voluntary 
techniques are not sufficient to negate the need for a separate 
requirement to demonstrate the restoration of ecological function. This 
requirement will also ensure consistency across the nation and provide 
guidance to the regulatory authorities on implementing measures to 
improve stream health.
    Other commenters asserted that the requirement is too subjective. 
As an example, a commenter expressed concern with the allegedly 
subjective interpretation of the language in proposed paragraph 
(b)(2)(ii)(B) that biological condition of a stream must be restored to 
a level ``adequate to support the uses that existed prior to mining.'' 
They also opined that there is not sufficient consensus within the 
scientific community that ecological function after mining-related 
disturbances can be fully restored. Several commenters criticized the 
proposed rule because it would require that the regulatory authority 
establish standards for determining when ecological function has been 
restored; yet, according to the commenters, experts in the discipline 
of stream restoration, including some cited by us in the preamble to 
the proposed rule, have not been able to agree on the metrics of 
ecological function or whether such function can be restored. They also 
cite to a purported lack of agreement on how the baseline and the 
restored ecological function should be measured. Some commenters also 
cited this requirement as an example of flawed science and reasoning 
that they allege permeates the proposed rule because the proposed 
definition of ecological function relies on a draft U.S. Army Corps of 
Engineers document that, in addition to not being final after five 
years, is geared toward Appalachia. Although the specifics on 
establishing successful ecological function vary throughout the 
scientific community, it is generally accepted that ecological function 
is an essential ingredient in stream health.\693\ However, the 
definition of ``ecological function'' neither mandates specific metrics 
nor is the definition specific to Appalachia. For example, U.S. 
Environmental Protection Agency publication discussing streams in the 
Southwest United States advocates for the restoration of ecological 
function by focusing on the importance of ``maintain[ing] water 
quality, overall watershed function or health, and provisioning of the 
essential and biological requirements of clean water.\694\ Prescribing 
protocols, as we have done here, is the first step in achieving 
ecological function.\695\
---------------------------------------------------------------------------

    \693\ Margaret A. Palmer, Standards for ecologically successful 
river restoration. Journal of Applied Ecology. Vol. 42, pgs. 208-217 
(2005).
    \694\ L. Levick, et al.,The Ecological and Hydrological 
Significance of Ephemeral and Intermittent Streams in the Arid and 
Semi-arid American Southwest. U.S. Environmental Protection Agency 
and USDA/ARS Southwest Watershed Research Center, EPA/600/R-08/134, 
ARS/233046, pg.116 (2008).
    \695\ Id. and Colleen E. Bronner, et al., An Assessment of U.S. 
Stream Compensatory Mitigation Policy: Necessary Changes to Protect 
Ecosystem Functions and Services. Journal of the American Water 
Resources Association (JAWRA) 49(2):449-462. DOI: 10.1111/jawr.12034 
(2013).
---------------------------------------------------------------------------

    Moreover, adopting the suggestion of the scientific community to 
retain the requirements to restore the ecological function of these 
streams will ensure that SMCRA is implemented more fully nationwide. 
For instance, section 515(b)(10) of SMCRA requires permittees to 
minimize disturbances to the prevailing hydrologic balance at the mine-
site and in associated offsite areas and to the quality and quantity of 
water in surface and ground water systems both during and after surface 
coal

[[Page 93287]]

mining operations.\696\ Section 515(b)(10) of SMCRA,\697\ therefore, 
requires adequate protection of the quality and quantity of water both 
on the permit and off the permit, which includes ensuring the water 
quality and quantity is sufficient to maintain the health of organisms 
within the waters of the stream. Likewise, section 515(b)(24) of SMCRA 
\698\ requires that the best technology currently available should be 
used to minimize disturbances and adverse impacts to fish and wildlife. 
Despite these statutory requirements, it is beyond dispute that mining 
activities under the previous regulations have been directly linked to 
degradation of stream biological health.\699\
---------------------------------------------------------------------------

    \696\ 30 U.S.C 1265(b)(10).
    \697\ Id.
    \698\ 30 U.S.C. 1265(b)(24).
    \699\ 80 FR 44436, 44439-44441 (Jul 27, 2015).
---------------------------------------------------------------------------

    Although we understand commenters' concerns about consensus within 
the scientific community, the final rule adopts the best science 
currently available to provide a concrete definition of ecological 
function. Ecological function is defined in Sec.  701.5 as ``the 
species richness, diversity, and extent of plants, insects, amphibians, 
reptiles, fish, birds, and mammals and other organisms for which the 
stream provides habitat, food, water or shelter. The biological 
condition of a stream is one way to describe its ecological function.'' 
The final rule also provides guidance on measuring the ecological 
function. As the preamble to the definition of ecological function 
explains, for purposes of measuring the restoration of ecological 
function of perennial and intermittent streams that are mined in or 
through, a regulatory authority may use the baseline data on the 
biology of the restored or reconstructed stream to determine the 
restoration success. The final rule also reasonably imposes several 
requirements, including the requirement for a streamside vegetative 
corridor and baseline sampling to measure ecological function of 
streams prior to mining so that restoration of ecological function 
following mining can be measured. The final rule also imposes several 
measures to ensure the use of the best technology currently available 
to minimize or prevent impacts. These provisions of the final rule 
provide clear guidance that ensures that a restored or reconstructed 
stream is not simply physically restored in form and hydrologic 
function but also it is restored to its position in the ecosystem. The 
provisions address the direct link between mining and the degradation 
of a stream's biological health and implement the requirements of 
SMCRA. Thus, we are including the requirement for restoration of 
ecological function in the final rule.
    Final paragraph (g)--paragraph (b)(2)(iii)(D) of the proposal--also 
specifies that if a permittee cannot restore the ecological function of 
a reconstructed perennial or intermittent stream as established by the 
regulatory authority under Sec.  780.28(g)(1), that permittee cannot 
achieve final bond release. Our regulations create a phased approach to 
stream restoration. Phase I bond release requires the demonstration of 
successful restoration of form; Phase II bond release requires the 
demonstration of successful restoration of hydrologic function as 
provided in paragraphs (e) and (f); and final bond release requires the 
restoration of ecological function. This approach makes the permittee 
accountable for the establishment of an acceptable level of ecological 
function.
    Many commenters opposed the prohibition on final bond release until 
after the permittee has demonstrated the restoration of ecological 
function. They claim that it is impossible to determine the cost of 
restoring the ecological function and, because of this, it will be 
impossible to capture the cost of such restoration when calculating the 
bond, as required by proposed Sec.  800.14(b)(2). Similarly, some 
commenters suggested that, because ecological function cannot be 
controlled, it is impossible to accurately predict when, if ever, such 
function will be restored, which would mean that bonds could be held 
for an indefinite amount of time. These commenters allege that the 
possibility of an indefinite bond would create a substantial new risk 
for sureties and make it difficult for operators to obtain a bond.
    We agree that the restoration of ecological function may take a 
long time, particularly if this restoration requires establishment of 
substantial canopy cover over the stream, but we maintain that SMCRA 
does require bonding until that function is restored. There is a direct 
connection between SMCRA and inclusion of ecological function 
restoration in the performance bond. The reclamation plan in Sec.  
780.12(h) requires compliance with the stream protection, stream 
reconstruction, and functional restoration requirements of Sec. Sec.  
780.28 and 816.57 of this chapter for perennial and intermittent 
streams. SMCRA section 508(a)(13)(A) \700\ requires that the 
reclamation plan have ``sufficient details of the description of the 
measures to be taken during the mining and reclamation process to 
assure the protection of the quality of surface and ground water 
systems.'' Further, section 509(a) SMCRA \701\ requires a performance 
bond to be sufficient to assure the completion of the approved 
reclamation plan. These SMCRA provisions make clear that functional 
stream restoration is to be part of the performance bond. We do, 
however, point out that in Sec.  780.28(g)(3)(ii)(A) the reconstructed 
stream segment does not have to have precisely the same biological 
condition or biota as the stream segment did before mining in order to 
demonstrate the restoration of ecological function. So the regulatory 
authority, which is in the best position to make that determination, 
can decide what constitutes an acceptable level of ecological function 
to satisfy the regulatory requirements. Although we are retaining the 
requirement for bond release, as discussed further in the preamble to 
Part 800, we agree with the commenters that raised concerns about 
potential for harm to the permitting process if we retained a proposed 
requirement to permit and bond streams separately. Therefore, we have 
removed the requirements in Sec.  800.14(b)(2) that required a separate 
bond calculation for the restoration of stream's ecological function.
---------------------------------------------------------------------------

    \700\ 30 U.S.C. 1258(a)(13).
    \701\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    One commenter expressed concern that the requirement to return 
ecological function to intermittent and perennial streams would be 
misconstrued as also applying to ephemeral streams. The commenter 
further asserted that, because ephemeral streams only flow in response 
to precipitation events, the need to assess the biological component of 
ephemeral streams is unnecessary. We agree and, as discussed above, 
have clarified that section applies only to intermittent and perennial 
streams. Requirements for ephemeral streams, which do not include the 
restoration of ecological function, are now located in Sec.  816.56.
    A commenter noted that we did not propose to require that a stream 
segment have precisely the same biological condition as it had before 
mining and suggested that we should revise the rule to explicitly 
identify the acceptable level of variations in the parameters that are 
connected with the ecological function of stream segments. We have 
determined that the regulatory authority is in the best position to 
make that determination because they have the proper expertise with 
respect to the local ecological regimes and would, along with the Clean 
Water Act authority, be the best judge as to the

[[Page 93288]]

level of change that is permissible within the confines of SMCRA. For 
further information on how restoration of ecological function is 
measured in the final rule, please refer to the preamble discussion of 
Sec.  780.28(g)(3)(ii).
    Many commenters opined that streams are difficult to replace and 
that there is little scientific evidence that a stream can be 
successfully restored to its previous ecological function. As discussed 
in the preamble to the proposed rule,\702\ we acknowledge that 
restoration of ecological function may be difficult, but as documented 
by successes in Illinois, it is possible.\703\ We recognize the 
important role streams play in the ecosystem and the difficulties in 
restoring that role after mining activities have occurred in or through 
a stream; therefore, we are adopting what could be termed an avoidance 
and minimization policy. This approach is the best solution currently 
available to eliminate potential impacts to stream resources while 
satisfying the purposes of SMCRA found at sections 102(c) and (d).\704\ 
Additionally, studies demonstrate that ``incentives for avoidance and 
minimization'' are the key to success and ``federal policy [being] 
revised to minimize the loss of stream functions and services'' \705\ 
is paramount. Therefore, the regulations at Sec.  780.28(g) and Sec.  
816.57(g) implement those recommendations made by scientists and other 
experts examining streams. Scientists consider the first step in 
restoring ecological function is to mandate that ecological function be 
restored, yet provide flexibility in how this will be achieved. 
Recommendations made by Bonner, et al. are consistent with our final 
regulations; in particular, ensuring that surface mining operations are 
conducted only where reclamation to the degree required by the Act is 
feasible.\706\
---------------------------------------------------------------------------

    \702\ 80 FR 44436, 44440 (Jul. 27, 2015).
    \703\ J.W. Nawrot, and W.G. O'Leary, Illinois stream 
restoration--opportunities or habitat enhancement: Policy and 
principles, and practices. Proceedings of the 2009 Geomorphic 
Reclamation and Natural Stream Design at Cao Mines: A Technical 
Interactive Forum 28-30. Bristol, Virginia, pgs. 183-195 (2009).
    \704\ 30 U.S.C. 1202(c) and (d).
    \705\ Colleen E. Bronner, et al., An Assessment of U.S. Stream 
Compensatory Mitigation Policy: Necessary Changes to Protect 
Ecosystem Functions and Services. Journal of the American Water 
Resources Association (JAWRA) 49(2):449-462. DOI: 10.1111/
jawr.12034. (2013).
    \706\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

Final Paragraph (h): Prohibition on Placement of Siltation Structures 
in Perennial or Intermittent Streams
    Proposed Sec.  816.57(c), now Sec.  816.57(h), prohibits 
construction of siltation structures in a perennial or intermittent 
stream or the use of perennial or intermittent streams as waste 
treatment systems to convey surface runoff from the disturbed area to a 
siltation structure except as provided in paragraphs (h)(1)(ii) and 
(h)(2).
    In the proposed rule, the terms ``sedimentation pond'' and 
``siltation structure'' were used interchangeably throughout Sec.  
816.57. To provide consistency and clarity, we have either changed the 
term ``sedimentation pond'' to ``siltation structure'' or added the 
term ``siltation structure'' to the applicable regulation. This makes 
it clear that the forms of siltation structures can vary; a 
sedimentation pond being only one type of siltation structure. These 
changes in terminology clarify that the rule covers all types of 
siltation structures and not just sedimentation ponds.
    A commenter expressed concern that the general prohibition upon 
placement of siltation structures or the use of streams to convey 
surface runoff extends to ephemeral streams. Similarly, other 
commenters explained that ephemeral streams are prevalent in many areas 
of western mining operations, and the only way to effectively provide 
sediment control for those operations is to construct siltation 
structures downstream of the mine in various areas along minor native 
and reclaimed ephemeral draws. As previously discussed in this section, 
we have removed the provisions of proposed Sec.  816.57 that applied to 
ephemeral streams and moved them to new Sec.  816.56. As a result, 
Sec.  816.57 applies only to perennial and intermittent streams. 
Notably, within Sec.  816.56, there is no comparable provision to 
paragraph (h) of this section, which makes clear that we are not 
prohibiting the use of an ephemeral stream segment inside a mined area 
to be used to convey surface water.
    Final paragraph (h)(1) contains the general prohibition, subject to 
exceptions, on the placement of siltation structures in perennial and 
intermittent streams. Many commenters disagreed with this general 
prohibition. Some commenters proffered that, in the arid west, wildlife 
use and opportunities for fish habitat can be created or increased if a 
sedimentation pond in perennial or intermittent streams is converted to 
a pond after mining and reclamation. Yet another commenter asserted 
that retaining siltation structures postmining is beneficial for 
habitat enhancement. Additional commenters indicated that a prohibition 
on sediment control ponds in perennial or intermittent streams may have 
the opposite effect of what we intended because it will result in more, 
not less, land disturbance since the diversions will have to be 
constructed on both sides of a stream. Similarly, another commenter 
noted that this proposed prohibition would significantly alter the 
typical drainage control practices currently in use, and the effect 
will be to require construction of many additional drainage control 
diversions and additional sediment basins with associated costs. 
Commenters further noted that allowing construction of a sedimentation 
pond or siltation structure in an intermittent or perennial stream is 
an efficient and cost effective way to control the flow of surface 
water within the mined area.
    While retention of a siltation structure outside of an intermittent 
or perennial stream may be beneficial after mining, it is also true 
that a siltation structure situated in an intermittent or perennial 
stream segment would not protect the postmining stream habitat. 
Permanent retention of a pond in an intermittent or perennial stream 
requires significant long-term maintenance, which cannot be assured 
after final bond release and termination of jurisdiction. For this and 
other reasons, such as potential liability in the event of failure and 
impacts to stream health, the U.S. Army Corps of Engineers has 
historically shown reluctance to grant such retentions.
    As long as it is not retained after reclamation, however, we agree 
that construction of a sedimentation pond in a stream during mining 
should be allowed provided that the fish and wildlife measures and 
enhancements required in Sec.  780.16 are met. Therefore, we have added 
paragraph (h)(1)(ii) to allow siltation structures to be constructed in 
perennial and intermittent streams immediately downstream of a stream 
segment that has been mined through.
    A commenter objected to the requirement in proposed paragraph 
(c)(1), now paragraph (h)(1), which prohibits the retention of 
siltation structures postmining. The commenter claimed that this 
requirement is not reasonable as sediment control structures, 
especially on ephemeral streams, are commonly left in place after 
mining and reclamation has been completed because they can be 
beneficial to wildlife habitat and water for livestock. As previously 
discussed, the prohibition on the construction of siltation structures 
within streams applies only to perennial and intermittent streams; 
thus, the situation described by the commenter would not be prohibited 
by this section because it concerns a siltation structure in an 
ephemeral stream. Moreover, we agree

[[Page 93289]]

that siltation structures in intermittent or perennial streams can be 
beneficial and, as discussed above, have added paragraph (h)(1)(ii) to 
allow the construction of a siltation structure in a stream channel 
immediately downstream of a stream segment that is mined through. 
However, we are retaining the prohibition of retention of siltation 
structures postmining in the final rule.
    As proposed in paragraph (c)(2), now paragraph (h)(2), the 
prohibition on placement of siltation structures in intermittent or 
perennial streams does not apply to siltation structures related to 
excess spoil fills, coal mine waste refuse piles, or coal mine waste 
impounding structures in steep-slope areas. We have replaced the term, 
``coal mine waste disposal facilities'' in paragraph (h)(2) with, 
``coal mine waste refuse piles'' and, ``coal mine waste impounding 
structures'' to clarify that this exemption applies to siltation 
structures associated with both of these types of facilities. After the 
completion of construction and revegetation of the fill or coal mine 
waste refuse pile or impounding structure. However, new paragraph 
(h)(3)(iii)(A) requires that all accumulated sediment be removed from 
the siltation structure and any stream segment between the siltation 
structure and the toe of the fill or coal mine waste disposal 
structure. Once the siltation structure has served its treatment 
purpose, the permittee must remove it as required in paragraph 
(h)(3)(iii)(B) and restore the stream as required in paragraph 
(h)(3)(iii)(C) so as to achieve the higher functionality of the natural 
stream condition and eliminate the risks inherent in an unmaintained 
structure.
Final Paragraph (i): Programmatic Alternative
    We have added Sec.  816.57(i) to the final rule to clarify that 
paragraphs (b) through (h) of this section will not apply if a 
regulatory authority amends its program to expressly prohibit all 
surface mining activities, including the construction of stream-channel 
diversions, that would result in more than a de minimis disturbance of 
land in or within 100 feet of a perennial or intermittent stream. We 
have added this alternative in response to comments advocating a 
complete ban on activities within 100 feet of any stream as the most 
stream protective course of action. Thus, we are granting the 
regulatory authority the option to enact such a prohibition.
Section 816.59: How must I maximize coal recovery?
    We are finalizing Sec.  816.59 as proposed. We received no comments 
on this section.
Section 816.61: Use of Explosives: General Requirements
Final Paragraph (d): Blast Design
    We are adopting this section as proposed except to correct an 
inadvertent error in paragraph (d)(2). Previous paragraph (d)(2) stated 
that the blast design ``may be presented as part of a permit 
application or at a time, before the blast, approved by the regulatory 
authority.'' The proposed rule interpreted this language as meaning 
that the regulatory authority must approve the blast design either as 
part of the decision on the initial permit application or at a later 
time before the blast. However, the preamble to the previous rule 
explains that we never intended to require regulatory approval of blast 
designs:

    The intent of the design is not primarily for public or 
regulatory review; rather it serves as a tool for the operator, 
blaster, and the blasting crew to understand the blast layout and 
implementation and for the regulatory authority to be advised of the 
blast parameters and timing, to initiate monitoring, if appropriate, 
and to ensure compliance with performance standards.\707\
---------------------------------------------------------------------------

    \707\ 48 FR 9792 (Mar. 8, 1983).

Therefore, we are not adopting paragraph (d)(2) in the form in which it 
was proposed. Instead, final paragraph (d)(2) returns to the intent of 
the previous (1983) rule, but without the ambiguity of the previous 
rule. Among other things, the last sentence of final paragraph (d)(2) 
reads: ``Regulatory authority approval of the blast design is not 
required, but, as provided in paragraph (d)(5) of this section, the 
regulatory authority may require changes to the design.''
Section 816.62: Use of Explosives: Preblasting Survey
    We are finalizing Sec.  816.62 as proposed. We received no comments 
on this section.
Section 816.64: Use of Explosives: Blasting Schedule
    We are finalizing Sec.  816.64 as proposed. We received no comments 
on this section.
Section 816.66: Use of Explosives: Blasting Signs, Warnings, and Access 
Control
    We are finalizing Sec.  816.66 as proposed. We received no comments 
on this section.
Section 816.67: Use of Explosives: Control of Adverse Effects
Final Paragraph (b): Airblast.--(1) Limits
    The published version of the proposed rule inadvertently omitted 
the second column in the table in section 816.67(b)(1)(i), which meant 
that the table included no airblast limits. Final paragraph (b)(1)(i) 
restores that column and the airblast limits to the table.
    One regulatory authority noted the error and recommended 
restoration of the airblast limits. However, the commenter also stated 
that the table and the airblast limits are no longer needed because of 
standardization of microphones. The commenter recommended that we 
consider replacing the table with a 133 dB (linear peak) maximum limit 
on airblast levels. Linear peak is the maximum level of air pressure 
fluctuation measured in decibels without frequency weighting to ensure 
the measured parameter is indicative of the level experienced by the 
human auditory system. Frequency weighting is not applied to airblast 
measurements because much of the sound from an airblast is at inaudible 
frequencies and would therefore be excluded.
    We commend the commenter for suggesting this update, but we cannot 
adopt it as part of this final rule because our proposed rule did not 
give sufficient notice that we might revise the airblast limits and the 
suggested revision is not a logical outgrowth of other rule changes, a 
correction of an error, or a nonsubstantive editorial change.
Section 816.68: Use of Explosives: Records of Blasting Operations
    We are finalizing Sec.  816.68 as proposed. We received no comments 
on this section.
Section 816.71: How must I dispose of excess spoil?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our regulations at Sec.  816.71.\708\ After evaluating the 
comments that we received, we are adopting the section as proposed, 
with the following modifications.
---------------------------------------------------------------------------

    \708\ 80 FR 44436, 44555-61 (Jul. 27, 2015).
---------------------------------------------------------------------------

    A commenter noted that this section does not distinguish between 
excess spoil and fill placed in, near, or outside a stream. No real 
distinction exists in this context. Fill placed in, near, or outside of 
a stream, is considered excess spoil. The standards in this section, 
however, ensure that the design and placement of any excess spoil fill

[[Page 93290]]

satisfies the minimum performance standards, generally related to 
stability, which are necessary to ensure the safety of an excess spoil 
fill wherever it is located. The permitting requirements in Sec. Sec.  
780.27 and 780.28, which minimize adverse impacts to streams, apply to 
all excess spoil fills that encroach upon any part of a stream.
    A commenter alleged that the process of restoring streams to their 
original elevations and enhancing the flood plain widths in their 
approximate original locations will increase the generation of 
additional spoil and elevations of spoil in the graded reclamation 
areas. Although specifically referencing proposed rule Sec.  816.71, 
about disposal of excess spoil, the commenter appears to be referring 
to Sec.  780.28(c) about the permitting requirements for restoring the 
approximate premining surface drainage pattern and stream-channel 
configuration of intermittent and perennial streams and Sec.  816.57, 
which includes associated performance standards. Nevertheless, we are 
addressing the comment in this section because of the impacts on spoil 
handling. We do agree that implementing the requirements of Sec. Sec.  
780.28 and 816.57 may result in a different handling plan than 
currently used because the reestablishment of stream channels will 
require additional blending of spoil material into the backfilled areas 
than is currently performed. We disagree with the comment that excess 
spoil will be created when the stream drainage patterns are restored 
because the volume of spoil generated is dependent on the mining 
scenario (depth to the coal seam, bulking factors, blasting patterns, 
etc.). However, we do agree that additional spoil handling will be 
required to restore the drainage pattern, including additional grading 
and blending necessary to create stream drainage patterns that are 
consistent with form. Nevertheless, we are not modifying the final rule 
in response to this comment our clarification here and explanations in 
final rule Sec. Sec.  780.28 and 816.57 are sufficient.
    The same commenter alleged that restoring wetlands at grade could 
result in the generation of additional spoil because spoil has to be 
relocated to keep wetland elevations low in the reclaimed area. We 
decline to make any changes as a result of this comment. It appears 
that this issue would, for the most part, affect areas with shallow 
groundwater, such as occurs in parts of the midcontinent region. It 
also appears that restoring wetlands at grade would tend to result in 
more spoil being placed in the backfilled area, rather than generation 
of additional excess spoil. Final paragraph (h)(3)(ii), discussed in 
more detail below, allows the final elevation of the backfilled area to 
exceed the premining elevation, so, in cases where maintenance of 
wetlands would be an issue it is more likely that displaced spoil will 
be placed in the backfilled area rather than an excess spoil fill.
    This commenter also alleged that the proposed rule would increase 
the need for additional spoil storage and increase mining costs to the 
point where many areas will not be practical to mine. We decline to 
make any changes as a result of this comment. The required volume of 
spoil storage is dependent on the volume and nature of overburden that 
the operator must remove to access the coal, and will not be affected 
by the rule. Section 780.35(b) requires that the operator demonstrate 
how you will minimize generation of excess spoil. Therefore, the rule 
should decrease the need to develop additional spoil storage sites.
    Finally, this commenter alleged that many of these backfilling 
requirements are not feasible or necessary in regions outside of 
Appalachia. It is true that excess spoil is generated predominantly in 
Appalachia; however, it is generated, and should be minimized, in other 
regions as well. The requirements of this section do not apply at sites 
where excess spoil is not generated.
    Another commenter noted that dry valleys are common in the arid and 
semi-arid West and suggested that excess spoil placement should be 
allowed in those areas where there are no streams to impact. In 
response, we note that none of the requirements in this section would 
preclude the placement of material in dry valleys as suggested by the 
commenter, as long as the other requirements of the section are 
satisfied. Specifically, paragraphs (a)(3), (h)(1), and (h)(3) require 
that the final configuration be compatible with the postmining land use 
and be capable of supporting appropriate vegetation, that the 
topography blend with the surrounding terrain, and that the drainage 
pattern be similar to the premining pattern.
Final Paragraph (a): General Requirements
    We modified paragraph (a)(1) by clarifying that the permittee must 
minimize the adverse effects of a coal mine waste disposal facility on 
groundwater and aquatic life, in addition to surface water. The 
specific reference to ``aquatic life'' will more thoroughly implement 
section 515(b)(24) of SMCRA,\709\ which requires operators to minimize 
adverse impacts on fish, wildlife, and related environmental values.
---------------------------------------------------------------------------

    \709\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Additionally, in paragraph (a)(5), in response to comments, we have 
deleted the language ``damage from'' as it pertains to flooding. As 
explained more fully above in connection with final Sec.  
780.21(b)(9)(ii), we have made this change in order to clarify that we 
are not requiring an investigation of premining flood events in order 
to assess the potential for damage from flooding. This revision focuses 
the assessment upon peak flows that could result in flooding and not 
damage from flooding.
    Further, in paragraph (a)(6), we have replaced the terms ``existing 
uses'' with the term ``premining uses'' and removed the term 
``reasonably foreseeable uses'' when referencing foreseeable uses of 
groundwater. We replaced the term ``existing use'' with ``premining 
use'' because the U.S. Environmental Protection Agency expressed 
concern about our use of the term ``existing use'' throughout the 
proposed rule and suggested that, because the term ``existing use'' is 
also used in a Clean Water Act context, it might cause confusion to use 
it in this context. In response we have deleted the term from the final 
rule. We have deleted the term ``reasonably foreseeable uses'' from the 
final rule except in connection with the protection of reasonably 
foreseeable surface lands uses from the adverse impacts of subsidence. 
The term appears only in SMCRA in section 516(b)(1), which requires 
that operators of underground mines adopt subsidence control measures 
to, among other things, maintain the value and reasonably foreseeable 
use of surface lands. It is not appropriate for a more general context. 
Further, many commenters objected to the usage of ``reasonably 
foreseeable'' asserting that it is too subjective, difficult to assess, 
and open to varying interpretations, which could result in inconsistent 
application.
    We have removed the reference to ``surface water'' from paragraph 
(a)(6) because we address surface water in final paragraph (a)(7). In 
the proposed rule we used the terms ``exceedance'' and ``violation'' 
interchangeably. We determined that we should select one term for 
consistency. Therefore, in paragraph (a)(7), we have replaced the word 
``exceedance'' with the word ``violation'' to be consistent with the 
terminology used throughout the final rule. In addition, we added the 
phrase ``adopted under the authority of section

[[Page 93291]]

303(c) of the Clean Water Act,\710\ for surface water downstream of the 
toe of the fill'' to paragraph (a)(7). We added this language to 
paragraph (a)(7), to clarify, that water emanating from the toe of the 
fill should not violate any applicable water-quality standards adopted 
under the authority of section 303(c) of the Clean Water Act.
---------------------------------------------------------------------------

    \710\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

Final Paragraph (d): Requirements for Handling Organic Matter and Soil 
Materials
    This section requires that a permittee remove all vegetation, other 
organic matter, and soil materials from the disposal area prior to 
placement of the excess spoil. A commenter requested that the final 
rule include a provision allowing the regulatory authority to waive the 
requirement of this paragraph for the removal of topsoil and organic 
matter in areas of steep slopes. According to the commenter, this 
requirement could present safety concerns in steep slope areas. We are 
not including such an exemption in the rule because, in our experience, 
steep slope areas used for disposal of excess spoil are usually no 
greater in slope than the location where coal extraction occurs. If the 
permittee is able to safely remove this soil and organic material from 
the mined area, it should also be able to do so from the disposal area. 
Furthermore, if left in place, this matter may decompose and form a 
weak zone that is likely to fail in steep areas.
Final Paragraph (e): Surface Runoff Control Requirements
    In the preamble to proposed Sec.  816.71(e)(1), we stated that we 
do not consider surface runoff channels constructed under Sec.  
816.71(e)(1) to be stream channel diversions or restored streams and 
thus, these structures would not qualify as fish and wildlife 
enhancement measures.\711\ One commenter alleged that this statement is 
contrary to the U.S. Army Corps of Engineers' past position that some 
diversions may qualify as mitigation. We decline to make any changes as 
a result of this comment. Because these structures are designed 
channels to convey only surface water flow, within the channel, with no 
flood-prone area or specifically planned vegetative corridor, they do 
not qualify as a type of enhancement that would fully and permanently 
offset the long-term adverse effects of the placement of excess spoil 
or coal mine waste facilities, which is required to meet the 
permittee's obligations pursuant to final Sec. Sec.  780.16 and 780.28.
---------------------------------------------------------------------------

    \711\ 80 FR 44436, 44556-44557 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (f): Control of Water Within the Footprint of the Fill
    Final paragraph (f) prescribes the requirements for constructing 
underdrains and temporary diversions to control erosion, prevent water 
infiltration, and ensure stability of the excess spoil disposal fill. 
Paragraph (f)(3)(iii) sets forth the criteria that must be used to 
select rock that is resistant to weathering for underdrain 
construction. Our rule requires use of the Los Angeles Abrasion test 
and the Sulfate Soundness test for choosing rock. One commenter 
asserted that these two tests are more elaborate and expensive testing 
methods than the Slake Durability Index Test, which is commonly used 
under the existing regulations. This commenter alleged that the 
proposed tests do not provide any added value. We are not modifying the 
final rule as a result of this comment. Our previous regulations 
allowed for end dumped durable rock fills and the Slake Durability 
Index test was appropriate because it can be used to determine the 
percentage of material in an excess spoil fill that is ``durable.'' The 
final rule at Sec.  816.71(g)(2), however, prohibits durable rock fills 
and instead at 816.71(f)(1) requires that the permittee ``design and 
construct underdrains and temporary diversions as necessary to control 
erosion, prevent water infiltration into the fill, and ensure 
stability.'' Because of this change, we are requiring the use of tests 
that are more appropriate for evaluating the materials that will be 
used in excess spoil fill underdrains. The two tests specified in the 
final rule are designed to assess the resilience of rock used to 
construct underdrains. The primary mechanisms that cause breakdown of 
material used in excess spoil fill underdrains are abrasion due to 
truck traffic and freezing and thawing, both of which can occur before 
the underdrain is adequately covered. The tests we are requiring 
specifically address these mechanisms. The Los Angeles Abrasion test is 
used to evaluate rock material breakdown resulting from abrasion, and 
the Sulfate Soundness test is used to evaluate the resistance of rock 
materials due to breakdown resulting from freezing and thawing.
    Another commenter recommended that only the Los Angeles Abrasion 
test should be required in circumstances where the underdrain rock is 
placed in interior or deep portions of an excess spoil fill and would 
not be subjected to freeze and thaw cycles, as well as in warm climates 
where freezing conditions are unlikely to occur. As we acknowledged in 
the preamble to the proposed rule, freezing of water in rocks and soil 
does not occur in all climates and is limited to a relatively shallow 
depth below the surface.\712\ Therefore, freezing and thawing are not 
processes that would affect most underdrains after they are buried. 
However, during construction, the underdrains are exposed to the 
surface and, in some cases, multiple freeze-and-thaw cycles occur 
before they are covered sufficiently to prevent freezing. Moreover, an 
underdrain is only as good as its weakest point, and failure of an 
underdrain could have catastrophic consequences, which could occur 
years after bond release. Finally, we note that, excess spoil fills are 
primarily found in the states of West Virginia, Kentucky, and Virginia, 
with a few fills constructed in Alaska. All of these mining regions 
experience freeze and thaw cycles. The use of the Sulfate Soundness 
test is both appropriate and necessary in these regions. Therefore, we 
decline to make any changes as a result of this comment.
---------------------------------------------------------------------------

    \712\ 80 FR 44436, 44559 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (g): Placement of Excess Spoil
    Final paragraph (g) specifies the requirements for proper transport 
and placement of excess spoil in a controlled manner in horizontal 
lifts not exceeding four feet in thickness. The spoil must be 
concurrently compacted to ensure mass stability and to prevent mass 
movement during and after construction. Finally, the paragraph 
prescribes grading techniques to ensure that surface and subsurface 
drainage is compatible with the natural surroundings. A commenter 
requested that we revise this paragraph to allow the regulatory 
authority to allow an excess spoil fill that involves the placement of 
material in lifts greater than four feet when supported by an 
alternative engineering design. Another commenter indicated that the 
proposed provision is unworkable and unrealistic in mining operations 
where the spoil can include single boulders that exceed four feet in 
diameter. The commenter further stated that it has successfully created 
excess spoil fills without this provision for decades and should be 
allowed to continue to do so. As we explained in the preamble for 
section 816.71(g) of the proposed rule, the purpose of this provision 
is to minimize voids in the fill and thus, reduce impacts to fish and 
wildlife resources.\713\ The commenter appears to

[[Page 93292]]

equate ``successful'' excess spoil fill construction strictly based on 
stability. Although lifts greater than four feet may be stable, 
allowing this exemption would be contrary to the purpose of this 
rulemaking, which is to better protect streams. Therefore, we decline 
to make any changes as a result of this comment.
---------------------------------------------------------------------------

    \713\ 80 FR 44436, 44687 (Jul. 27, 2015)
---------------------------------------------------------------------------

    Paragraph (g)(2), as mentioned above, contains a prohibition on so-
called ``durable rock fills.'' It forbids any excess spoil transport 
and placement techniques that do not involve the controlled placement 
of spoil, including end-dumping, wing-dumping, cast-blasting, gravity 
placement, or casting spoil downslope. A commenter expressed concern 
that under the rule, the use of trucks for spoil transport would not be 
considered to be controlled placement under section 515(b)(22)(A) of 
SMCRA because the spoil would be dumped from the back of a truck, which 
the commenter interpreted as ``end dumping''.\714\ The commenter stated 
that a strict interpretation of this provision could render entire 
truck fleets un-usable for excess spoil transport, even if the spoil 
was subsequently spread and compacted. In response to this comment, we 
note that we do not intend to prohibit the mechanical transport of 
spoil. The use of trucks to transport and place material, via dumping, 
from the bed of the truck is permissible under the final rule. This 
final rule simply prohibits the dumping of material down the face of a 
fill to its final location.
---------------------------------------------------------------------------

    \714\ 30 U.S. 1265(b)(22)(A).
---------------------------------------------------------------------------

Final Paragraph (h): Final Configuration
    Paragraph (h) identifies the requirements for final fill 
configuration. Specifically, paragraph (h)(3)(i) requires that 
geomorphic reclamation principles be used to establish the final 
surface configuration of the fill. Specifically, the permittee must 
grade the top surface of the fill to create a topography that includes 
ridgelines and valleys with varied hillslope configurations when such 
configurations are practicable, compatible with stability and 
postmining land use considerations, and generally consistent with the 
topography of the area before any mining. One commenter questioned the 
rationale for requiring the use of geomorphic reclamation principles. 
In paragraph (h) we are requiring a final surface configuration that 
not only promotes greater erosional stability but also has more 
ecological benefits than other techniques. Although section 816.71 
includes other requirements to ensure long term stability and to 
minimize discharges, we are encouraging the geomorphic reclamation 
technique, where appropriate, because of its demonstrated success. This 
technique has resulted in less maintenance than traditional reclamation 
techniques. It has enabled the creation of a diverse and natural-
looking wildlife habitat and similar natural drainage patterns. 
However, we recognize that the geomorphic reclamation technique is not 
appropriate for all sites. We encourage the use of geomorphic 
reclamation techniques ``when practicable'' and grant discretion to the 
regulatory authority to determine the extent to which this requirement 
can be implemented on a site specific basis. Therefore, we decline to 
make any changes as a result of this comment.
Final Paragraph (k): Inspections and Examinations
    This paragraph prescribes the inspection and documentation required 
during construction of the excess spoil fill. We modified paragraph 
(k)(1) to clarify that inspections will occur at least quarterly during 
construction, with additional complete inspections conducted during 
critical construction periods. We invited comment on whether the final 
rule should require additional specific oversight by a qualified 
engineer when segregated, graded, natural material is used to construct 
the filter system.\715\ In response, one commenter noted that 
additional inspection is not necessary and should not be included in 
the final rule. The commenter added that the requirement to perform 
daily inspections during placement of excess spoil material is onerous 
and requested we remove it. This commenter further asserted that 
because construction of excess spoil fills is time intensive and may 
occur 24 hours per day, daily inspections and recordkeeping for spoil 
placement and compaction are unnecessary, costly, and especially 
unwarranted when the postmining land use is range land. The commenter 
makes a valid point that, as proposed, numerous inspections of the 
excess spoil placement in four-foot lifts would be required. It is true 
that placement in the lower portions of the fill may result in more 
than one lift completed every day. In response, we have revised the 
final rule to provide an alternative to the daily inspection 
requirement. In final paragraph (k)(2)(i), the permittee may choose to 
have inspections conducted by a qualified engineer or specialist on a 
weekly basis rather than a daily basis, provided that daily 
photographic evidence is captured by a mine representative. These 
photographs must clearly verify that the requirement for the four-foot 
lift thickness has been achieved and document the elevation and 
location of the photograph. An example of visual evidence of the 
location can be a global positioning system-tagged photograph with 
latitude, longitude, and elevation clearly displayed as well as a map 
with these photographs embedded and tagged. Also, this photographic 
documentation, along with the weekly examination reports, must be 
included in the quarterly report required under section (k)(3) of this 
section.
---------------------------------------------------------------------------

    \715\ 80 FR 44436, 44560 (Jul. 27, 2015).
---------------------------------------------------------------------------

    A regulatory authority stated that the daily inspections required 
by Sec.  816.71(k)(2)(i) would result in more report reviews and place 
additional resource burdens on regulatory authorities. While it is true 
that the quarterly reports required under final paragraph (k)(3) will 
be more extensive, they will also provide a more comprehensive record 
than is currently required. Further, these records will be available 
on-site for regulatory authority inspection. Since the time interval 
between an inspection, partial or complete, may be several weeks or 
longer, a significant volume of excess spoil can be placed in a fill 
during that time period. The only way for the inspector to be certain 
that the lift requirement has been fulfilled is through the 
documentation supplied by this provision. Thus, the additional review 
time that this provision will require is ancillary to the benefit of 
attaining better oversight of the operation by the regulatory 
authority. The regulatory authority also referenced proposed Sec. Sec.  
780.19(k) and 784.19(k) which provided that a permit will be void from 
the date of issuance if it is issued on the basis of what the 
regulatory authority later determines to be substantially inaccurate 
baseline information. The regulatory authority alleged that daily 
inspections could increase the likelihood of permit nullifications, 
especially if the term ``substantially inaccurate'' is too broadly 
interpreted. In response we note first that, as discussed in the 
preamble to final rule Sec. Sec.  780.19 and 784.19, we have removed 
the two paragraphs that the commenter referenced. Second, however, the 
scenario described does not seem plausible; we fail to see how an 
increased frequency of inspection of excess spoil placement could lead 
a regulatory authority to determine that the baseline information a 
permittee submitted at the time of permit

[[Page 93293]]

application was substantially inaccurate.
Final Paragraph (l): Coal Mine Waste
    Final paragraph (l)(1) allows disposal of coal refuse in an excess 
spoil fill, subject to specific requirements. As proposed, paragraph 
(l)(1) required the permittee to demonstrate that no credible evidence 
existed that the disposal of coal mine waste in an excess spoil fill 
will cause or contribute to a violation of applicable water quality 
standards as prescribed by section 303(c) of the Clean Water Act or 
effluent limitations. Furthermore, the disposal of the waste must not 
result in material damage to the hydrologic balance outside the permit 
area. A commenter stated that the term ``credible evidence'' is too 
vague and suggested we adopt ``weight of the evidence'' as a better 
standard. At the suggestion of another commenter, we have removed any 
reference to a standard of evidence and now require that you 
demonstrate, and the regulatory authority find in writing, that the 
disposal of coal mine waste in the excess spoil fill will not cause or 
contribute to a violation of applicable water quality standards adopted 
under the authority of section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), other state or tribal water quality standards, or effluent 
limitations or result in material damage to the hydrologic balance 
outside the permit area.
Why did we remove the provision for rock-core chimney drains in 
previous 30 CFR 816.72(b)?
    As we proposed in the preamble to the proposed rule,\716\ we have 
removed previous Sec.  816.72(b) because mine operators are no longer 
constructing fills with rock-core chimney drains. We received no 
comments in response to our proposal to remove this abandoned practice.
---------------------------------------------------------------------------

    \716\ 80 FR 44436, 44561 (Jul. 27, 2015).
---------------------------------------------------------------------------

    A rock-core chimney drain is a vertical wall of durable rock within 
the fill, extending along the centerline from the toe of the fill to 
the head of the fill and from the base of the fill to the surface of 
the fill. To clarify, our removal of this paragraph will not prohibit 
construction of head-of-hollow or valley fills. However, applications 
for fills including rock-core chimney drains will not be approved. Any 
proposed excess spoil fills must satisfy the permitting requirements of 
Sec. Sec.  780.28 and 780.35. If approved, excess spoil fill disposal 
must comport with the performance standards of Sec.  816.71.
Why did we remove the provisions for durable rock fills in previous 30 
CFR 816.73?
    This section of the existing regulations was deleted as part of 
this rulemaking. As explained in the preamble to Sec.  816.71(g) of the 
proposed and final rules, we are removing this section as proposed.
Section 816.74: What special requirements apply to the disposal of 
excess spoil on a preexisting bench?
    We are finalizing Sec.  816.74 as proposed. We received no comments 
on this section.
Section 816.79: What measures must I take to protect underground mines 
in the vicinity of my surface mine?
    We are finalizing Sec.  816.79 as proposed. We received no comments 
on this section.
Section 816.81: How must I dispose of coal mine waste?
    As discussed in the preamble to the proposed rule,\717\ we proposed 
to modify our regulations at Sec.  816.81. We are adopting the section 
as proposed with some minor language modifications for clarity, 
consistency with other sections of the final rule, and the requirements 
of SMCRA.
---------------------------------------------------------------------------

    \717\ 80 FR 44436, 44562-44563 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (b): Basic Performance Standards
    We have modified paragraph (b)(1) by clarifying that the permittee 
must minimize the adverse effects of a coal mine waste disposal 
facility on groundwater, surface water, and aquatic life. We have 
replaced ``biological condition'' with ``aquatic life'' to be more 
comprehensive as only certain streams are assessed using bioassessment 
protocols associated with biological condition. The specific reference 
to ``aquatic life'' will more thoroughly implement section 515(b)(24) 
of SMCRA,\718\ which requires minimal adverse impacts on fish, 
wildlife, and related environmental values.
---------------------------------------------------------------------------

    \718\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    In paragraph (b)(6) we have deleted the language ``damage from'' as 
it pertains to flooding to ensure that the occurrence and extent of 
flooding should be minimized, not just the resulting damage.
    In paragraph (b)(7), we have replaced the terms ``existing'' and 
``reasonably foreseeable'' use of groundwater and replaced it with any 
``premining'' use of groundwater. The U.S. Environmental Protection 
Agency expressed concern about our use throughout the rule of the term 
``existing use'' and suggested that, because the term ``existing use'' 
is also used in a Clean Water Act context, in relationship to surface 
water, it might cause confusion for us to use it here. In response we 
have deleted the term from the final rule. We have deleted the term 
``reasonably foreseeable uses'' from the final rule except in 
connection with the protection of reasonably foreseeable surface lands 
uses from the adverse impacts of subsidence. The term appears only in 
SMCRA in section 516(b)(1), which requires that operators of 
underground mines adopt subsidence control measures to, among other 
things, maintain the value and reasonably foreseeable use of surface 
lands. It is not appropriate for a more general context. Further, many 
commenters objected to the usage of ``reasonably foreseeable'' 
asserting that it is too subjective, difficult to assess, and open to 
varying interpretations, which could result in inconsistent 
application. Therefore, in a groundwater context we have replaced 
``reasonably foreseeable use ``with the term ``premining use'' to avoid 
confusion with Clean Water Act terminology.
    Finally, in paragraph (b)(7) we have removed ``surface water'' 
because we address surface water in final paragraph (8). In paragraph 
(b)(8), we have clarified that a coal mine waste disposal facility may 
not cause, or contribute to a violation of section 303(c) of the Clean 
Water Act,\719\ of the surface water downstream of the facility.
---------------------------------------------------------------------------

    \719\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

Final Paragraph (e): Foundation Investigations
    Similar to the modifications we made at final Sec. Sec.  
816.49(a)(4), about foundations, at the suggestion of another federal 
agency and to improve clarity we have modified final paragraph (e) 
about foundation investigations. We have added ``abutment'' to the 
requirement to ensure precautions are taken to fully prevent failure of 
impounding structure foundations. Additionally, we have added the 
phrase ``and control of underseepage'' to ensure that seepage failures 
of the dam foundation are prevented. This would include the potential 
for piping failures.
Section 816.83: What special requirements apply to coal mine waste 
refuse piles?
    We are finalizing Sec.  816.83 as proposed. We received no comments 
on this section.

[[Page 93294]]

Section 816.84: What special requirements apply to coal mine waste 
impounding structures?
    We are finalizing Sec.  816.84 as proposed. We received no comments 
on this section.
Section 816.87: What special performance requirements apply to burning 
and burned coal mine waste?
    We are finalizing Sec.  816.87 as proposed. We received no comments 
on this section.
Section 816.89: How must I dispose of noncoal mine wastes?
    We are finalizing Sec.  816.89 as proposed. We received no comments 
on this section.
Section 816.95: How must I protect surface areas from wind and water 
erosion?
    Section 816.95 explains the additional performance standards that 
apply to protect topsoil from erosion and air pollution attendant to 
erosion. We proposed to revise Sec.  816.95 from the previous 
regulation to replace the references to topsoil with the terms soil and 
soil substitutes.\720\ This change is consistent with Sec. Sec.  
780.12(e) and 816.22(c) which allow for the use of topsoil and subsoil 
substitutes.
---------------------------------------------------------------------------

    \720\ 80 FR 44436, 44564 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In response to the proposed rule we did not receive any specific 
comments about this section. However, in response to general comments 
made by the U.S. Environmental Protection Agency, we modified paragraph 
(b)(1)(ii) referencing applicable water quality standards adopted under 
the authority of section 303(c) of the Clean Water Act.\721\ This 
addition was necessary to maintain consistency with changes made 
elsewhere in the final rule.
---------------------------------------------------------------------------

    \721\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

Section 816.97: How must I protect and enhance fish, wildlife, and 
related environmental values?
    One commenter on this section recommended that we require 
permittees to avoid impacts to the extent possible instead of requiring 
the minimization of impacts. The commenter pointed out that using an 
avoidance standard is guaranteed to prevent impacts, whereas there is a 
risk of failure associated with minimization, even if it is followed by 
restoration and enhancement. We are not accepting this suggestion. As 
we described in the preamble to our proposed rule, our substantive 
revisions to Sec.  816.97 \722\ are intended to more fully implement 
section 515(b)(24) of SMCRA,\723\ which provides that, ``to the extent 
possible using the best technology currently available,'' surface coal 
mining and reclamation operations must be conducted so as to ``minimize 
disturbances and adverse impacts of the operation on fish, wildlife, 
and related environmental values, and achieve enhancement of such 
resources where practicable.'' Thus, SMCRA only requires minimization, 
not avoidance, of adverse impacts to fish, wildlife, and related 
environmental values. Congress was very specific when it selected the 
phrase ``minimize disturbances and adverse impacts'' in section 
515(b)(24) of SMCRA as opposed to using the term ``avoid'' as it did in 
other environmental protection performance standards such as section 
515(b)(10)(A) and (E) of SMCRA.\724\ Clearly, it was the intent of 
Congress to allow a degree of impact, not the greatest possible 
reduction of impact as the commenter presupposes.
---------------------------------------------------------------------------

    \722\ 80 FR 44436 (Jul. 27, 2015).
    \723\ 30 U.S.C. 1265(b)(24).
    \724\ Id. and 30 U.S.C. 1265(b)(10)(A) and (E).
---------------------------------------------------------------------------

    A few commenters requested that we ensure that our fish and 
wildlife enhancement measures do not interfere, contradict, or 
incorporate conservation measures contained in voluntary conservation 
programs as approved by state or federal agencies. These commenters 
further explain that incorporating voluntary conservation program 
agreements into a SMCRA permit would impinge on the ``voluntary'' 
status of the conservation measures and potentially render these 
voluntary conservation agreements ineligible for mitigation credits. We 
are not changing the rule in response to this request. We recommend 
that these measures be discussed during coordination with the 
appropriate state and federal agencies during the permitting process 
described in Sec. Sec.  779.20(b) and 783.20(b).
Final Paragraph (b): Requirements Related to Federal, State, and Tribal 
Endangered Species Laws
    As proposed, paragraph (b) prohibited surface mining activities 
that are likely to jeopardize the continued existence of threatened or 
endangered species listed by the Secretary of the Interior or proposed 
for listing, or that are likely to result in the destruction or adverse 
modification of designated critical habitat in violation of the 
Endangered Species Act. One commenter recommended that we modify the 
language to prohibit operations that ``may affect'' listed species 
instead of jeopardizing their continued existence. We recognize that 
jeopardy is too low of a standard because it allows for more impacts 
than SMCRA 515(b)(24) \725\ intends. On the other hand, the ``may 
affect'' standard is too stringent because there are situations in 
which a mining operation may affect a listed species, but as a result 
of protective measures designed during consultation, material damage of 
the hydrologic balance is avoided. The commenter's suggested 
modification would also prohibit activities that may affect, but are 
not likely to adversely affect, species. In order to address these 
issues, we have modified the language in paragraph (b)(1)(i) to clarify 
that no surface mining activities may violate the Endangered Species 
Act and that nothing in our regulations authorizes the taking of a 
species listed as threatened or endangered under the Endangered Species 
Act of 1973, 16 U.S.C. 1531 et seq., unless the U.S. Fish and Wildlife 
Service or the National Marine Fisheries Service, as applicable, 
authorizes the taking under 16 U.S.C. 1536(b)(4). We also added 
reference to the National Marine Fisheries Service to this regulation 
in the event that a species under its jurisdiction may be impacted by 
mining activities. See 16 U.S.C. 1532(15).
---------------------------------------------------------------------------

    \725\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    One commenter stated that it is unclear what actions the regulatory 
authority would take in the event a species is unexpectedly found in 
the permit area or adjacent area, as described in paragraph (b)(1)(ii). 
The commenter also stated that such a discovery could conceivably shut 
down an ongoing operation at great expense. However, Sec.  817.97(b) in 
the current regulations already requires operators to ``promptly 
report'' the presence of any listed or threatened species within the 
permit area when the operator becomes aware of it. This section of the 
current regulations also specifies that upon such notification, ``the 
regulatory authority shall consult with the appropriate State and 
Federal fish and wildlife agencies and, after consultation, shall 
identify whether, and under what conditions, the operator may 
proceed.'' Operators have not raised concerns about this existing 
requirement, and we are unaware of any instances where the requirement 
has been overly burdensome. Furthermore, the risk of unexpected 
occurrences of listed species can be minimized by gathering the best 
possible data and coordinating with the relevant agencies at the permit 
application and approval stages. See Sec.  773.15(j)(1) (requiring 
operators to provide documentation that the proposed permit area and 
adjacent area

[[Page 93295]]

do not contain threatened or endangered species).
    We invited comment on whether to limit the notification requirement 
of proposed paragraph (b)(1)(ii) to the active mining phase of the 
operation. Specifically, we sought comment on whether the final rule 
should explicitly state that the notification requirement expires at 
the time of Phase II bond release, since there is typically a lack of 
activity on the site after that stage of reclamation. We received 
comments in support of and in opposition to terminating the 
notification requirement at Phase II bond release. Those in favor of 
terminating the requirement argued that it would save government and 
industry resources, since impacts would be less likely after this stage 
and because habitat restoration is generally in place--or at least in 
process--at the time of Phase I bond release. These commenters stated 
that most of the major earth moving and planting operations are 
complete at that point, and no major activity would be taking place 
after Phase I bond release. Those who argued against terminating the 
requirement voiced concern that risks to listed species continue after 
active mining and require long-term treatment. The U.S. Fish and 
Wildlife Service recommended that we not limit the notification 
requirement because information about the new or increased occupancy of 
the site or adjacent area is useful in understanding the recovery of 
areas affected by the mining activity. After consideration of the 
comments, we have determined that continued notification after Phase II 
bond release is not a burdensome requirement as the notification 
requirement does not also require prescribed searches or assessments of 
the area and that there is continued value to these notices as it would 
allow the appropriate agencies to gather data on these species is data 
after Phase II; therefore, we have not limited the notification 
requirement. Furthermore, we note that the requirement is limited to 
notification. If the operation is unlikely to cause any harm to the 
newly found species, no action will be required. In contrast, not 
requiring disclosure could result in unquantified harm to species and 
expose operators to liability under the Endangered Species Act. 
Therefore, we have not limited the notification requirement.
    Commenters supported the requirement in paragraph (b)(1)(iv), to 
comply with any species-specific protection measures required by the 
regulatory authority in coordination with the U.S. Fish and Wildlife 
Service. The only change we have made to this paragraph is to add a 
reference to the National Marine Fisheries Service in the event that a 
species under its jurisdiction may be impacted by mining activities.
    Other commenters stated that our final rule at paragraph (b)(2) 
should not contain analogous requirements for state listed species. We 
decline to eliminate these requirements because they are necessary to 
comply with section 515(b)(24) of SMCRA, which requires 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.'' \726\ In response to paragraph 
(b)(2), which requires operators to notify the regulatory authority of 
any state or tribal-listed, threatened or endangered species within the 
permit area or the adjacent area of which the permittee becomes aware, 
regardless of whether the species was listed before or after permit 
issuance, we received a comment that neither the SMCRA nor the 
Endangered Species Act provides protection for state-listed species. As 
stated in the proposed preamble,\727\ paragraph (b)(2) was established 
to set forth the requirements for state listed species under state 
statutes protecting state listed, threatened, and endangered species. 
In addition, in In re: Permanent Surface Mining Regulation Litigation, 
No. 79-1144, slip op, at pp. 58-63 (D.C. Cir. 1984), a federal district 
court ruled that section 515(b)(24) of SMCRA \728\ is not limited to 
Federally-listed species. Therefore, under SMCRA, operators are 
required to minimize disturbances to state, tribal, and federally-
listed endangered or threatened species. We have made additional 
changes to final paragraphs (b)(2)(ii)(A) and (B) provide clarity on 
the process of coordination with the appropriate agencies, the process 
for proceeding with activities, and process for revising the permit 
when a state-listed species is found within the permitted site.
---------------------------------------------------------------------------

    \726\ 30 U.S.C. 1265(b)(24).
    \727\ 80 FR 44436, 44465 (Jul. 27, 2015).
    \728\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

Final Paragraph (c): Bald and Golden Eagles
    One commenter recommended that we remove Sec.  816.97(c), which 
describes the process of protecting bald and golden eagles, their 
nests, and eggs, and the process of reporting and addressing the 
presence of bald and golden eagle nests. This commenter claimed that 
this provision would usurp the authority that Congress delegated to the 
U.S. Fish and Wildlife Service under the Bald and Golden Eagle 
Protection Act \729\ and that this effort to expand our jurisdiction is 
unlawful. We disagree. This paragraph does not expand our jurisdiction; 
it merely describes the process of alerting the U.S. Fish and Wildlife 
Service of the presence of bald or golden eagles, their eggs, or nests 
and the responsibilities of the operator and the regulatory agency in 
this process. This requirement was present in the previous regulations 
and has been retained unedited in the final rule.
---------------------------------------------------------------------------

    \729\ 16 U.S.C. 668-668d.
---------------------------------------------------------------------------

Final Paragraph (d): Miscellaneous Protective Measures for Other 
Species of Fish and Wildlife
    In paragraph (d)(1), we proposed to delete the clause in our 
existing regulations that allowed regulatory authorities to waive, if 
they determined it was unnecessary, the requirement that electric power 
transmission lines and other transmission facilities used for, or 
incidental to, surface mining activities on the permit area be designed 
and constructed to minimize electrocution hazards to raptors and other 
avian species with large wingspans. We are not aware of any situations 
in which these precautions are not necessary or appropriate. We 
received comments supporting this change and are finalizing it as 
proposed.
    One commenter requested that we delete paragraph (d)(4), which 
requires the exclusion of wildlife from ponds that contain hazardous 
concentrations of toxic or toxic-forming materials. This requirement 
has been part of our existing regulations since December 11, 1987. This 
provision was once deleted from the regulations, as we maintained that 
there was little evidence of harm to wildlife as a result of 
unprotected toxic ponds on the site of any mining operation. We stated 
at the time the requirements to minimize disturbances and adverse 
impacts on wildlife by utilizing the best technology currently 
available would be sufficient to protect wildlife from toxic ponds. But 
the court in In re: Permanent Surface Mining Regulation Litigation, No. 
79-1144, slip op, at pp. 58-63 (D.C. Cir. 1984) rejected these 
arguments, stating that the absence of evidence of harm to wildlife 
supported the retention of the fencing requirement. The court believed 
the regulations specific to utilizing the best technology currently 
available did not provide regulatory authorities with sufficient 
guidance. Therefore, until we are further directed by the courts or 
presented with sufficient scientific evidence, we will keep this 
provision within the regulations.

[[Page 93296]]

    Another commenter objected to proposed paragraph (d)(4) asserting 
that many ponds in the Appalachian and Illinois Basins are treated with 
chemicals because of acidity, iron, and manganese levels and some are 
being treated with a ``proprietary mix'' of treatment chemicals. The 
commenters assert that proposed paragraph (d)(4) is not fully 
protective because we have not stated the standard for ``toxic or 
toxic-forming materials.'' We disagree. In existing 30 CFR 701.5 we 
define toxic-forming materials as ``earth materials or waste which, if 
acted upon by air, water, weathering, or microbiological processes, are 
likely to produce chemical or physical conditions in soil or water that 
are detrimental to biota and or uses of water.'' The preamble to our 
1979 implementing regulations explains the basis for the wording found 
in the definition.\730\ Accordingly, we have not made any changes to 
the final rule based on this comment.
---------------------------------------------------------------------------

    \730\ 44 FR 14941 (Mar. 13, 1979).
---------------------------------------------------------------------------

    Another commenter objected to paragraph (d)(5) under the mistaken 
impression that it would require operators to reforest lands that were 
forested or that would have reverted to forest under conditions of 
natural succession at the time of permit application, regardless of the 
approved postmining land use. We have made no change in the final rule 
because the rule allows for non-forestry vegetation and other land 
uses, such as those described in Sec.  816.97(g) for the cropland 
postmining land use.
    Similarly, a commenter asked if we were deleting the fish and 
wildlife postmining land use category because proposed paragraph (d)(5) 
states that, ``to the extent possible,'' the operator must ``reclaim 
and reforest lands that were forested at the time of application and 
lands that would revert to forest under conditions of natural 
succession in a manner that enhances recovery of the native forest 
ecosystem as expeditiously as practicable.'' Fish and wildlife habitat 
land use is still a suitable post mining land use category. Section 
701.5 defines both ``land use'' and ``fish and wildlife habitat'' land 
use. These definitions in Sec.  701.5 are used in conjunction with 
Sec. Sec.  780.24 and 784.24 to determine the requirements that apply 
to postmining land use. The requirements of Sec.  816.97 and 817.97 
provide additional protection and enhancement measures that should be 
implemented to the extent possible, using the best technology currently 
available. Therefore, we are not making any changes in response to this 
comment.
Final Paragraph (e): Wetlands
    We proposed to redesignate Sec.  816.97(f) of our previous 
regulations as paragraph (e) within the final rule and revise it for 
clarity and consistency with section 515(b)(24) of SMCRA.\731\ The 
previous rule was not fully consistent with section 515(b)(24) of 
SMCRA,\732\ which requires both minimization of disturbances and 
adverse impacts on fish, wildlife, and related environmental values to 
the extent possible and enhancement of those resources where 
practicable. Proposed paragraph (e) was drafted to align with 
515(b)(24) of SMCRA \733\ by requiring the permittee to avoid 
disturbances ``[t]o the extent possible, using the best technology 
currently available. . .'' and ``. . .where practical, enhance 
wetlands.'' One commenter objected to the proposed changes and 
interpreted the proposed rule to require all three actions, i.e., 
avoidance, restoration or replacement, and enhancement, wherever 
wetlands exist on the permitted site. This is not an accurate reading 
of the requirements. If possible, the operator must avoid disturbances 
to wetlands. If this is not possible, then restoration or replacement 
of that affected wetland is required. Finally, in all instances, if it 
is practical, the operator is to enhance the wetlands within the 
permitted area. The previous regulations, as described within the 
preamble to the proposed rule,\734\ allow the permittee to choose from 
one of these options, which, as described above, is inconsistent with 
515(b)(24) of SMCRA. We did not make changes due to this comment, 
although to further align with SMCRA at 515(b)(24), we have added ``. . 
. using the best technology currently available . . .'' to the final 
rule within this paragraph.
---------------------------------------------------------------------------

    \731\ 30 U.S. 1265(b)(24).
    \732\ Id.
    \733\ Id.
    \734\ 80 FR 44436, 44566 (Jul. 27, 2015).
---------------------------------------------------------------------------

    For additional clarification and compliance with the Clean Water 
Act, 33 U.S.C. 1344, we have added an additional provision in paragraph 
(e)(2) stating that nothing in paragraph (e)(1) of this section 
authorizes destruction or degradation of wetlands in violation of 
section 404 of the Clean Water Act.\735\
---------------------------------------------------------------------------

    \735\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

Final Paragraph (f): Habitat of Unusually High Value for Fish and 
Wildlife
    We have moved portions of proposed paragraph (e) related to habitat 
of unusually high value for fish and wildlife to final paragraph (f). 
This change was made to reduce confusion between wetlands and habitats 
of unusually high value for fish and wildlife. Paragraph (f) paragraph 
now requires operators to ``avoid disturbances to, restore or replace, 
and, where practicable, enhance riparian and other native vegetation 
along rivers and streams, lentic vegetation bordering ponds and lakes, 
and habitat of unusually high value for fish and wildlife, as described 
in Sec.  779.20(c)(3) . . . .''
Final Paragraph (g): Vegetation Requirements for Fish and Wildlife 
Habitat Postmining Land Use
    In proposed paragraph (f), now redesignated as paragraph (g) in the 
final rule, we proposed to require, among other things, the exclusive 
use of native vegetation where fish and wildlife habitat is a 
postmining land use. We received many comments in support of this 
requirement. As discussed elsewhere in the preamble, we have, within 
the final rule, made allowances for the use of non-natives that are 
both non-invasive and necessary to achieve the approved postmining land 
use.\736\ In addition, Sec.  780.12(g)(4) allows for the short-term use 
of non-natives when necessary to achieve a quick-growing, temporary, 
stabilizing cover on disturbed and regraded areas, as long as the 
species selected to achieve this purpose are consistent with measures 
to establish permanent vegetation. Several commenters stated that non-
native annual crops can be used to supplement natural food sources for 
wildlife. We acknowledge that this is true. However, we do not agree 
that the use of non-native species is necessary to successfully reclaim 
the site to the ``fish and wildlife habitat'' land use category. This 
land use category is defined within Sec.  701.5 as land that is 
``dedicated wholly or partially to the production, protection, or 
management of species of fish or wildlife.'' This definition does not 
allow for a focus on game species to the detriment of other species, 
and there are no other aspects of this land use category that would 
necessitate the use of non-native plant species. Therefore, an 
exception for the use of non-natives for this land use category is not 
warranted.
---------------------------------------------------------------------------

    \736\ 30 CFR 780.12(g)(3)(i)
---------------------------------------------------------------------------

    Another commenter stated that exceptions should be made where 
native species are not commercially available. We do not find this 
argument persuasive for a number of reasons. First, the use of native 
species is a best practice in SMCRA and non-SMCRA regulated reclamation 
across the United States, and substantial progress

[[Page 93297]]

continues to be made in the availability and diversity of native 
species. Best practices also include contracting growers to produce 
seed from the premining vegetation or adjacent (and appropriate) areas 
for use in reclamation. This enhances the establishment and the 
survivability of the native species that are used. In Sec.  
780.12(g)(4), we have described circumstances under which the need to 
provide stabilization of disturbed and regraded areas makes it 
necessary for the regulatory authority to allow quick-growing, 
temporary, stabilizing cover on disturbed and regraded areas, provided 
that the species selected to achieve this purpose are consistent with 
measures to establish permanent vegetation. These requirements are 
consistent with section 515(b)(19) of SMCRA,\737\ which provides that 
permanent vegetative cover must be of the same seasonal variety native 
to the area of land to be affected and capable of self-regeneration. 
This section of SMCRA allows for the use of introduced species in the 
revegetation process where desirable and necessary to achieve the 
approved postmining land use plan.\738\
---------------------------------------------------------------------------

    \737\ 30 U.S.C. 1265(b)(19).
    \738\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

Final Paragraph (h): Vegetation Requirements for Cropland Postmining 
Land Use
    A commenter objected to proposed paragraph (g), now final paragraph 
(h), and requested it be amended to clarify that the operator and 
surface owner may determine whether trees, hedges, and fence rows are 
appropriate for planned postmining, crop-management practices. The 
proposed rule requirement applies only ``where appropriate for 
wildlife-management and crop-management practices.'' Given this 
exception, no revision is necessary to accommodate trees, hedges, and 
fence rows if they are appropriate for planned postmining, crop-
management practices.
Final Paragraph (i): Vegetation Requirements for Forestry Postmining 
Land Uses
    One commenter objected to our requirement within proposed paragraph 
(h), now final paragraph (i), to plant understory species on lands 
managed for forestry as the postmining land use. The commenter claimed 
that this requirement was ``not sensible,'' as the rationale for a 
forest post mine land use is to provide forest resources for wildlife 
and for potential future harvesting of these resources. We disagree 
that the requirement is ``not sensible'' and are finalizing it as 
proposed. Interspersion of high value trees and shrubs further enhances 
the function and resources of the site for wildlife and increases its 
overall environmental and aesthetic value. Through proper forestry 
management techniques, the inclusion of shrubs within a forestry post 
mining land use would improve implementation of the revegetation 
requirements of 515(b)(19) of SMCRA \739\ and the provisions of section 
515(b)(24) of SMCRA \740\ concerning protection and enhancement of 
fish, wildlife, and related environmental values. The proposed, and now 
final regulations require this practice to the extent that it is not 
inconsistent with the type of forestry conducted as part of the 
postmining land use.
---------------------------------------------------------------------------

    \739\ 30 U.S.C. 1265(b)(19).
    \740\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

Final Paragraph (j): Vegetation Requirements for Other Postmining Land 
Uses
    A commenter objected to the requirement in proposed paragraph 
(i)(1), now paragraph (j)(1), to intersperse greenbelts and plantings 
of non-invasive native plants that provide food or cover for wildlife 
in sites that are otherwise approved for residential, public service, 
commercial, industrial, or intensive recreational uses. These 
commenters expressed concern over the potential for conflicts between 
greenbelts and the features, for example power lines, of the selected 
land use. This concern is exaggerated. Pursuant to the requirements of 
Sec.  780.12(g), the revegetation plan must be approved by the 
regulatory authority. The requirement in paragraph (j)(1) will be 
satisfied if this plan is followed. Moreover, the regulation states 
that greenbelts are not required if their use would be inconsistent 
with the approved postmining land use plan for that site. Even so, in 
most cases, greenbelts could be situated to avoid conflict with other 
necessary features of the approved land use.
Section 816.99: What measures must I take to prevent and remediate 
landslides?
    We are finalizing Sec.  816.99 as proposed. We received no comments 
on this section.
Section 816.100: What are the standards for conducting reclamation 
contemporaneously with mining?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our regulations at Sec.  816.100 to add stream restoration to 
the list of reclamation activities that are subject to the 
contemporaneous reclamation requirement.\741\ We received expressions 
of support for this change, including from the U.S. Forest Service; 
therefore, we are maintaining this addition in the final rule.
---------------------------------------------------------------------------

    \741\ 80 FR 44436, 44567 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 816.102: How must I backfill the mined area and grade and 
configure the land surface?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our regulations at Sec.  816.102.\742\ We have amended the 
language of the proposed rule to reflect that there are allowable 
deviations from the general requirement to return all land disturbed by 
coal mining operations to its approximate original contour prior to any 
mining. Additionally, after evaluating the comments that we received, 
we have corrected and added citations to statutory and regulatory 
authority provisions; added Sec.  816.102(a)(3)(iv)(B),(C),and (D); and 
deleted a provision in section 816.102(a)(5). We discuss these changes 
and responses to relevant comments below.
---------------------------------------------------------------------------

    \742\ 80 FR 44436, 44567-44570 (Jul. 27, 2015).
---------------------------------------------------------------------------

    We proposed to revise the introductory language of paragraph (a) to 
clarify that the requirement to backfill applies only to mined 
areas.\743\ We noted that, although the existing rule applies the 
backfilling requirement to the entire disturbed area, this is 
inappropriate because ``those portions of the disturbed area outside 
the mined area do not contain a pit or similar excavation that requires 
backfilling.'' \744\ To support this statement, we referred the public 
to the preamble discussion of the proposed definition of ``backfill'' 
in 30 CFR 701.5 \745\ which we derived from A Dictionary of Mining, 
Mineral, and Related Terms (U.S. Bureau of Mines, 1968). Specifically, 
we proposed to define ``backfill'' as ``the spoil and waste materials 
used to fill the void resulting from an excavation created for the 
purpose of extracting coal from the earth.'' We simultaneously proposed 
to define the action of ``backfilling'' as ``the process of filling 
that void.'' \746\ In response, one commenter argued that our proposed 
definitions were inaccurate because many mining companies in North 
Dakota excavate areas to construct sediment ponds--and not to extract 
coal-- and these must be backfilled when they are no longer needed. 
Although the term ``backfill'' is

[[Page 93298]]

commonly used in the manner suggested by the commenter outside the 
mining context, in the mining context, the term refers to material 
placed in the mined area and to the related act of placing that 
material in the void created by mining. In the mining context, the 
filling in of sediment ponds or other excavations when they are no 
longer needed is referred to as ``reclaiming'' the site to its 
approximate original contour. Thus, our proposed definitions are 
accurate.
---------------------------------------------------------------------------

    \743\ 80 FR 44436, 44567 (Jul. 27, 2015).
    \744\ Id.
    \745\ Id.
    \746\ 80 FR 44436, 44468 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In new Sec.  816.102(a)(1), we have replaced the phrase ``except in 
the following circumstances with deviations from the approximate 
original contour restoration requirements are allowed in the following 
situations.'' This change should make it clear to permit applicants and 
to state regulatory authorities that an exemption from the approximate 
original contour restoration requirements cannot be claimed by the 
permittee when a permanent impoundment is created or when one of the 
other situations enumerated in Sec.  816.102(a)(1) are present. We 
discuss this point in more detail below.
    The proposed deviations from the general approximate original 
contour restoration requirements generated numerous comments. One 
commenter argued that the definition of ``approximate original 
contour'' in paragraph (a)(1) was ambiguous and could lead to a 
loophole around the statutory requirement to backfill and grade. The 
commenter noted a recent administrative decision \747\ documenting 
testimony by a geologist with a state regulatory authority who claimed 
that the slopes of impoundments above the level of the water should not 
be considered in evaluating whether a mining company has backfilled and 
graded in a manner that achieves the approximate original contour. The 
commenter asserted that SMCRA, the previous regulations, and the 
proposed regulations cannot be read to support the state engineer's 
testimony. The commenter argued that this approach would allow mine 
operators to create ponds in front of highwalls or leave unreclaimed 
pits as ``supposed impoundments'' and then contend that the land forms 
do not need to conform to the approximate original contour 
requirements. To prevent a misreading of the statute or regulations, 
the commenter recommended that we clarify that slopes of impoundments 
are a part of the contour of a mine site. The commenter also noted that 
many impoundments have been created for the purpose of avoiding the 
costs associated with spoil transport.
---------------------------------------------------------------------------

    \747\ Farrell-Cooper Mining Company v. OSMRE, OHA Docket No. 
2013-1-R (Amended Decision of ALJ Sweitzer at 30, 31).
---------------------------------------------------------------------------

    The commenter is correct that the term ``approximate original 
contour'' is often misconstrued and misapplied. As that commenter 
noted, the previously-referenced state geologist incorrectly excluded 
so-called ``impoundment slopes'' from his approximate original contour 
analysis because he apparently believed that any slope leading down to 
the water level of a permanent impoundment is part of the design 
criteria for a permanent impoundment.\748\ He therefore interpreted our 
previous regulations as providing an exemption for these slopes from 
the requirement to restore the land to its approximate original contour 
for areas around permanent impoundments. This interpretation was 
erroneous, and we agree with the commenter that the postmining contours 
of the entire permit area should be evaluated for approximate original 
contour compliance.
---------------------------------------------------------------------------

    \748\ So-called impoundment slopes are not part of the design 
criteria for permanent impoundments because such slopes play no role 
in the water-holding capacity of the impoundment. Only a small 
portion of the slope of an impoundment above the normal water line--
the ``embankment slope''--is properly a part of the design criteria 
of an impoundment. The embankment slope is the slope from the normal 
waterline of the impoundment to the maximum water level where the 
water flows out the emergency spillway. Id.
---------------------------------------------------------------------------

    It is not appropriate to create permanent impoundments merely for 
the purpose of avoiding the true cost of reclaiming the mined out area 
and restoring its approximate original contour. As the commenter 
suggests, the regulatory and statutory provisions dealing with 
impoundments, highwall elimination, spoil pile elimination, and 
drainage patterns should all be read together and applied together so 
that land affected by a surface coal mining and reclamation operation 
will be returned to the same approximate configuration that existed 
prior to any mining. In other words, land that was generally flat prior 
to any mining should be generally flat after the mining and reclamation 
operations are complete, although there may be some variations in site 
elevation after mining. The permittee should not propose, and the 
regulatory authority should not approve, the creation of land forms 
that were not present within the permit area prior to any mining. After 
reclamation operations are complete, the mined out area and the area 
affected by surface coal mining and reclamation operations should 
closely resemble the contours of the land that existed prior to any 
mining.
    Permanent impoundments are allowable deviations from approximate 
original contour, but they are not an exemption from the requirement to 
return land to the approximate original contour that existed prior to 
any mining.\749\ Permanent impoundments of an appropriate size and 
proper depth can provide significant wildlife habitat and recreational 
value. However, this does not mean permanent impoundments can be as 
large and as deep as a surface owner or a permittee might like them to 
be. The size and depth of permanent impoundments are limited by the 
requirements of final rule Sec. Sec.  780.24 and 816.102(a)(3)(ii).
---------------------------------------------------------------------------

    \749\ Permanent impoundments are allowed by section 515(b)(8) of 
SMCRA, 30 U.S.C. 1265(b)(8).
---------------------------------------------------------------------------

    We have previously approved highwall retention provisions as part 
of the New Mexico and Utah regulatory programs.\750\ Our proposed rule 
allowed for the retention of modified highwalls under limited 
circumstances. We received many comments on this proposal. Some 
commenters urged us to eliminate the proposed retention of modified 
highwalls. The commenters argued that highwalls are not natural and 
that, while they may serve as habitat for some wildlife, such as 
raptors, they present significant danger to inhabitants, livestock, and 
other wildlife. Other commenters opposed our proposed highwall 
retention provisions because, in the commenters' view, those provisions 
are not applicable to other regions and could be used as a loophole to 
circumvent the approximate original contour restoration requirement. 
Other commenters opined that a national rule was not needed because 
similar highwall retention provisions have been approved in state 
regulatory programs where the limited retention of highwalls is an 
acceptable method of restoring mined land to its approximate original 
contour.
---------------------------------------------------------------------------

    \750\ 45 FR 86459 (Dec. 31, 1980), and 58 FR 48600 (Sept. 17, 
1993), respectively.
---------------------------------------------------------------------------

    Section 816.102(a)(3)(iii) of the final rule still allows for the 
retention of modified highwalls under limited circumstances. However, 
we have changed the rule in response to the commenters' concerns by 
addressing: (1) The nature of highwalls, (2) the effect of highwalls on 
wildlife, and (3) the danger that highwalls represent. We explain these 
changes further below.
    We disagree that our proposed highwall retention provisions are 
inapplicable in regions outside of New Mexico and Utah, as commenters 
contended. Although the New Mexico and Utah programs allow for highwall 
retention under limited circumstances,

[[Page 93299]]

New Mexico and Utah are not the only states where there are cliffs. 
This rule will have application any time a naturally occurring feature 
like a cliff is destroyed by coal mining operations, as long as the 
requirements of Sec.  816.102(a)(3)(iii) are met. While our rule has 
nationwide applicability, we acknowledge that it will only affect 
regions and areas with cliffs. These provisions will have no effect at 
all on regions or areas where naturally occurring cliffs are not 
present.
    We also disagree that this new regulatory provision could provide a 
``loophole'' around the requirement to restore the land to its 
approximate original contour. As we explain below, the retention of 
modified highwalls is actually in harmony with the requirement to 
restore to approximate original contour.
    While we agree that highwalls created as a part of a mining 
operation are not natural features, highwalls retained pursuant to 
paragraph (a)(3)(iv) are consistent with approximate original contour 
because they are allowed only when they are replacing natural cliffs 
which existed prior to any mining and then only if they are modified to 
simulate the preexisting cliffs.
    Highwalls that are allowable postmining features are not formed by 
natural processes and must be modified, in some cases significantly, to 
closely resemble a natural landform. To ensure that this occurs, final 
Sec.  816.106(a)(3)(iv)(A) requires the regulatory authority to 
establish conditions to ensure that the retained segment resembles 
similar premining landforms. As we discussed in the preamble to the 
proposed rule, the rule allows retention of modified highwall segments 
only if they replace cliffs and bluffs that existed prior to any 
mining.\751\ We also clarified in the preamble to the proposed rule 
that we intend the rule to reconcile the potential conflict between the 
requirement to restore the approximate original contour and the 
requirement to eliminate all highwalls.\752\ In effect, this means that 
the retention of highwalls is limited to a very specific set of 
circumstances and carries with it certain responsibilities.
---------------------------------------------------------------------------

    \751\ 80 FR 44436, 444569 (Jul. 27, 2015).
    \752\ Id.
---------------------------------------------------------------------------

    As we proposed,\753\ a permittee can only retain a highwall if the 
permittee destroyed naturally-occurring cliffs or bluffs while mining. 
Even then, a permittee must modify the highwall segments to closely 
resemble the features destroyed by mining.\754\ This means that 
regulatory authorities must establish permit conditions to ensure that 
the retained segment restores the form of the destroyed natural cliff 
or bluff.\755\ As we stated in the preamble to the proposed rule, this 
may require blasting ledges into the highwall face or creating 
microhabitats at the base of the highwall remnant.\756\ Although we 
mentioned these two examples in the preamble to the proposed rule, we 
emphasize here that these examples are not intended to be exhaustive, 
and they will often not be sufficient to ensure that the retained 
segment resembles similar premining landforms.
---------------------------------------------------------------------------

    \753\ Id.
    \754\ Id.
    \755\ See Id.
    \756\ See Id.
---------------------------------------------------------------------------

    Paragraph (a)(3)(iv)(A) further ensures that highwalls closely 
resemble the replaced features by making it clear that modified 
highwall segments are not authorized in excess of the number, length, 
and height needed to replace similar premining landforms. As a simple 
illustration, a two hundred foot cliff cannot be replaced with two one 
hundred foot highwalls. Likewise, five twenty foot bluffs cannot be 
replaced with a one hundred foot highwall. Rather, a highwall segment 
may be retained only if, under section (a)(3)(iv), it replaces similar 
natural landforms, and if, under (a)(3)(iv)(A), it closely resembles 
those similar premining landforms.
    To avoid any confusion about the word ``similar'' in this context, 
we emphasize, as we did in the preamble to the proposed rule, that 
retained highwall segments must be modified to closely resemble the 
features destroyed by mining and to restore the ecological functions of 
those features.\757\ Any attempt to replace a natural landform with a 
landform that is different in scale or type from the one destroyed by 
mining is inconsistent with the purpose and intent of this regulation.
---------------------------------------------------------------------------

    \757\ 80 FF 44436, 44569 (Jul. 27, 2015).
---------------------------------------------------------------------------

    As mentioned above, several commenters asserted that the retention 
of highwalls will have a negative effect on wildlife. For instance, 
commenters argued that, although highwalls may create habitat for 
raptors and cliff-dwelling wildlife, they may pose a danger to 
livestock and grassland wildlife. We share commenters' concern for the 
effect of highwalls on wildlife and note that this concern is addressed 
in the final rule. Final section 816.102(a)(3)(iv)(A) requires the 
regulatory authority to establish conditions to ensure that the 
retained segment restores the ecological niches that the premining 
landforms provided. If a cliff, prior to mining, provided an ecological 
niche for wildlife, the regulatory authority must establish conditions 
ensuring that the replacement highwall provides the same ecological 
niche. In the preamble to the proposed rule, we mentioned that 
permittees may need to blast ledges into the highwall face to provide 
nesting habitat for raptors and other cliff-dwelling habitat or create 
microhabitats at the base of a highwall remnant. Again, these examples 
are not exhaustive. Additionally, we added final paragraphs 
(a)(3)(iv)(B) and (C), which require that the retained highwall be 
stable and not create a safety hazard compared to the premining feature 
that it replaces.
    We disagree with commenters who argue that limited highwall 
retention will not comply with SMCRA Section 515(b)(24). That section 
requires that surface coal mining and reclamation operations use the 
best technology currently available to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values and 
to achieve enhancement of those resources where practicable. As we did 
in the preamble to the proposed rule,\758\ we emphasize that the 
requirement to restore ecological niches will improve implementation of 
SMCRA 515(b)(24). In order to comply with both SMCRA and the final 
rule, operators must use the best technology available to identify 
ecological niches prior to mining and to restore them after mining. We 
also believe that the commenters' confusion about impacts on wildlife 
and habitat may stem from confusion surrounding the term ``ecological 
niches.'' The term is not defined in the regulation and is only used in 
Sec. Sec.  816.102 and 817.102. In the proposed rule, we used the term 
without defining it, but intended it to be understood as it is used in 
common scientific parlance. We have retained that approach in the final 
rule.
---------------------------------------------------------------------------

    \758\ 80 FR 44436, 44569 (Jul. 27, 2015).
---------------------------------------------------------------------------

    As we discussed in the preamble to the proposed rule, ``ecological 
niche'' includes the wildlife habitat and ecological functions of the 
feature. Thus, no highwalls can be retained, as a commenter suggested, 
in areas where no cliffs or bluffs existed premining because such a 
highwall would provide a different ecological niche than premining 
landforms. Nor can a highwall be retained if it fails to fully restore 
the variety of environmental values provided by the destroyed premining 
landform. Succinctly, in order to restore an ecological niche, it is 
necessary to understand where the premining landforms provided

[[Page 93300]]

important environmental functions, how the premining landforms provided 
environmental values, and how a retained highwall segment must be 
modified to provide the same environmental values. The regulatory 
authority, for its part, must establish conditions ensuring that these 
values are understood and restored.
    Some commenters suggested that, if highwalls are allowed to be 
retained, they should be no greater in length than the natural cliffs 
that existed prior to mining. These commenters further suggested that 
trails be cut through retained highwalls at intervals to allow for the 
passage of livestock and wildlife. We address the commenters' concern 
in final section 816.102(a)(3)(iv)(A). As previously discussed, this 
paragraph prohibits the retention of modified highwall segments that 
are longer than the premining landform. Again, as discussed above, this 
requirement cannot be avoided by combining or dividing the dimensions 
of premining natural landforms. Furthermore, we note that if trails are 
necessary to restoring the ecological niches provided by premining 
landforms, then those trails would be authorized under paragraph 
(a)(3)(iv)(A).
    In response to concerns about the dangers posed by highwalls, we 
added paragraph (a)(3)(iv)(B). Commenters argued that due to the nature 
of some sedimentary geological formations, highwalls might prove to be 
unstable because they are susceptible to weathering. Paragraph 
(a)(3)(iv)(B) requires the regulatory authority to establish conditions 
to ensure that the retained segment is stable. To address similar 
safety concerns we also added paragraph (a)(3)(iv)(C). This provision 
requires the regulatory authority to establish conditions to ensure 
that the retained segment does not create an increased safety hazard 
compared to the premining feature that it replaces. The commenters 
further claimed that leaving highwalls would allow for the exposure of 
water bearing formations. In response, we added paragraph 
(a)(3)(iv)(D), which requires the regulatory authority to establish 
conditions to ensure that any exposure of water-bearing strata in the 
retained segment does not adversely affect the hydrologic balance.
    Some commenters supported the principle of allowing remnant 
highwall features to replace cliffs destroyed during the mining process 
but questioned why it was necessary to include it in the federal final 
rule when several states have successfully incorporated this into their 
programs without a corresponding federal regulation. As we discussed in 
the preamble to the proposed rule, the rule harmonizes SMCRA section 
515(b)(3)'s requirements to eliminate highwalls and restore the 
approximate original contour and clarifies any potential conflict 
between these requirements.\759\ A federal final rule is necessary to 
ensure that these two provisions are properly harmonized, to avoid 
regulatory loopholes, and to provide consistency and clarity to 
affected regulated entities and the public. We understand that some 
states have incorporated elements of the final rule into their programs 
without a corresponding federal regulation, but that does not preclude 
us from adopting these provisions in our federal rule.
---------------------------------------------------------------------------

    \759\ 80 FR 44436, 44569 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Many commenters argued that these provisions should be implemented 
at the discretion of state regulatory authorities. Regulatory 
authorities retain their traditional discretion under SMCRA to adopt 
provision that are no less stringent than SMCRA and no less effective 
than the Secretary's regulations in meeting the requirements of the 
Act. This final rule sets appropriate baseline requirements for 
regulatory authorities. Regulatory authorities must establish 
conditions to ensure that the retained segment: (1) Closely resembles 
the landforms that existed before any mining; (2) restores the 
ecological niches that those landforms provided; (3) is stable; (4) 
does not create an increased safety hazard compared to the feature that 
existed before any mining; and (5) does not adversely impact the 
hydrologic balance through the exposure of water-bearing strata. These 
are reasonable requirements that enhance implementation of SMCRA 
section 515(b)(3) and protect both the natural and human environment. 
Furthermore, state regulatory authorities retain their discretion to 
establish conditions that accomplish these requirements.
    Some commenters argued that we should require public notice, a 
public hearing, and a comment period on any permit application, 
revision, or renewal that proposes to retain modified highwalls 
pursuant to paragraph (a)(3)(iv) in order to give local residents an 
opportunity to comment on potential changes to the local landscape. We 
have declined to change Sec.  816.102 in response to this 
recommendation. Existing Sec.  773.6 already provides these 
rights.\760\
---------------------------------------------------------------------------

    \760\ 30 CFR 773.6.
---------------------------------------------------------------------------

    Section 816.102(a)(5) requires permittees and operators to minimize 
erosion and water pollution. One commenter recommended that we revise 
this section to require the permittee or operator to ``significantly'' 
minimize erosion and water pollution. We have declined to make this 
revision, as it is unnecessary. The word ``minimize'' is used alone 
throughout the performance standards of SMCRA.\761\ We are adopting 
this term in our regulations to more closely follow the mandates of 
SMCRA. Moreover, the word ``minimize,'' as commonly understood, 
indicates that the permittee or operator must reduce erosion and water 
pollution to the extent possible. Adding ``significantly'' would be 
redundant in this context. Thus, we are not accepting the commenter's 
suggestion to include the word ``significantly.''
---------------------------------------------------------------------------

    \761\ 30 U.S.C. 1265.
---------------------------------------------------------------------------

    Finally, in Sec.  816.102(a)(5), we proposed to require that 
backfilling and grading be conducted to minimize water pollution, 
including discharges of parameters of concern for which no numerical 
effluent limitation or water quality standards have been established. 
One commenter argued that proposed Sec.  816.102(a)(5) was too vague to 
implement. This commenter claimed that a permittee would not be able to 
understand, without numerical effluent limitations or water quality 
standards, how compliance will be determined, what effluent limits are 
appropriate, and whether grading and backfilling were being conducted 
appropriately. We understand the commenter's concern and deleted this 
language from the final rule. With this revision, Sec.  816.102(a)(5) 
now requires the permittee to ``[m]inimize erosion and water pollution 
both on and off the site.'' As we stated in the preamble to the 
proposed rule, however, SMCRA requires the permittee 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.'' \762\ This statutory 
requirement continues to apply to permittees regardless of changes to 
the regulatory text in this final rule.
---------------------------------------------------------------------------

    \762\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

Section 816.104: What special provisions for backfilling, grading, and 
surface configuration apply to sites with thin overburden?
    We are finalizing section 816.104 as proposed. We received no 
comments on this section.

[[Page 93301]]

Section 816.105: What special provisions for backfilling, grading, and 
surface configuration apply to sites with thick overburden?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our regulations at Sec.  816.105,\763\ which details special 
requirements applicable for operations with thick overburden. After 
evaluating the comments that we received, we are adopting the section 
as proposed.
---------------------------------------------------------------------------

    \763\ 80 FR 44436, 44571 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (b): Performance Standards
    Two commenters expressed concern about the requirement in proposed 
paragraph (b)(1) that operators backfill the mined-out area to 
approximate original contour and then place the remaining spoil and 
waste materials on top of the backfilled area. One commenter alleged 
that because of this language, it was unclear whether the proposed rule 
allowed ``blending.'' Blending involves placing spoil material outside 
of the mined area as a transition between the location where overburden 
is removed, considering spoil swell factors, and the undisturbed 
surrounding terrain. The purpose of blending is to avoid any abrupt or 
potentially hazardous changes in elevation between the mined area and 
the existing, surrounding terrain. Blending can have beneficial 
impacts, such as reduced slope steepness throughout the reclaimed area. 
Spoil used for blending the reclaimed area into the surrounding terrain 
also helps to minimize the potential for excess spoil that would cause 
the burial of streams. This commenter stated that if blending is not 
allowed, it will greatly increase the spoil elevation in many areas. 
The commenter further opined that any provision prohibiting the 
practice of ``blending'' conflicts with SMCRA, which, according to the 
commenter, allows blending to achieve approximate original contour. In 
response, we direct the commenter to subpart (5) of this section, which 
requires the final surface configuration to ``blend[] into and 
complement[] the drainage pattern of the surrounding terrain to the 
extent possible.'' This language specifically allows blending. We also 
note that this section applies only to sites with thick overburden.
    Another commenter indicated that the language of paragraph (b)(2) 
is contradictory. That paragraph states that operators must ``grade the 
backfilled area to the lowest practicable grade that is ecologically 
sound, consistent with the postmining land use, and compatible with the 
surrounding region.'' It further states that ``[n]o slope may exceed 
the angle of repose.'' The commenter specifically states that allowing 
the overstacking of backfill to a height greater than the approximate 
original contour, but never more than the angle of repose, conflicts 
with achieving the lowest practicable grade. In response, we note that 
the commenter appears to misunderstand the purpose of this section. 
Section 816.105 only applies to the limited circumstance of a surface 
mine with thick overburden. This section was specifically intended to 
recognize that in the limited circumstance of thick overburden, it may 
not be possible to achieve the approximate original contour 
configuration that would otherwise be required. In the limited 
situation of thick overburden, Sec.  816.105 allows for placement of 
spoil within the mined area in a surface configuration in a manner that 
will probably not closely resemble the general surface configuration of 
the land prior to any mining. As a result, the final reclaimed surface 
configurations might exceed, in both contour height and slope 
steepness, a normal approximate original contour configuration for mine 
sites that do not have thick overburden. However, while this regulation 
specifically allows the placement and overstacking of spoil within the 
mined area at these sites, it recognizes there are additional factors 
that must be considered before placing spoil beyond normally allowable 
limits. These additional factors include the avoidance of the creation 
of slopes that would be considered unstable--but never to exceed the 
angle-of-repose-- and the avoidance of the creation of slopes that 
would be considered ecologically unsound. Moreover, even though 
steeper-than-normal slopes would likely be created for surface mining 
operations that have thick overburden, the grading of spoil materials 
to the lowest practicable grade is still a reasonable overall target. 
These qualifiers to the grading of overstacked spoil will offer 
reasonable protection in areas of thick overburden.
Section 816.106: What special provisions for backfilling, grading, and 
surface configuration apply to previously mined areas with a 
preexisting highwall?
    We are finalizing section 816.106 as proposed. We received no 
comments on this section.
Section 816.107: What special provisions for backfilling, grading, and 
surface configuration apply to operations on steep slopes?
    We received no comments on this section. Nevertheless, we made one 
modification from the proposed rule. Proposed paragraph (d) provided 
that, ``you must handle woody materials in accordance with Sec.  
816.22(f) of this part. You may not bury them in the backfill.'' \764\ 
We have removed the last sentence because it is in conflict with Sec.  
816.22(f)(ii) of the final rule. Section 816.22(f)(ii) provides an 
exception that allows material to be buried in the backfill when 
significant populations of invasive or noxious non-native species are 
present and it is necessary to bury the material at a sufficient depth 
to prevent regeneration or proliferation of undesirable species. 
Removal of ``[y]ou many not bury them in the backfill'' makes 
Sec. Sec.  816.107 and 816.22 consistent in their handling of organic 
matter.
---------------------------------------------------------------------------

    \764\ 80 FR 44436, 44668 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 816.111: How must I revegetate areas disturbed by mining 
activities?
    We proposed to revise and restructure previous Sec.  816.111.\765\ 
After evaluating the comments that we received, we are adopting the 
section as proposed, with a few modifications. Some commenters 
expressed concern that this section does not require the vegetative 
cover to be ``of the same seasonal variety native to the area of land 
to be affected,'' as required by section 515(b)(19) of SMCRA.\766\ 
Previous Sec.  816.111(b)(2) required that vegetation have the same 
``seasonal characteristics of growth'' as the native plant communities 
they replace. This requirement was part of a rule that was promulgated 
in 1983.\767\ We did not change this requirement in the final rule. 
Final Sec.  780.12(g)(3)(iv) retains the phrase ``seasonal 
characteristics of growth.'' The basis for the use of the term 
``seasonal characteristics of growth'' instead of ``seasonal variety'' 
is set forth in the 1982 preamble to the proposed rule that resulted 
in, the 1983 final rule. In that preamble, we explained that ``seasonal 
variety'' in section 515(b)(19) of SMCRA \768\ and ``seasonal 
characteristics of growth'' have essentially the same meaning, but that 
``seasonal characteristics of growth'' is more easily understood, and 
refers to the major season of growth for herbaceous species.\769\ This 
is still true;

[[Page 93302]]

therefore, we have not made modifications to the final rule in response 
to the commenter's concern.
---------------------------------------------------------------------------

    \765\ 80 FR 44436, 44572-73 (Jul. 27, 2015).
    \766\ 30 U.S.C. 1265(b)(19).
    \767\ 48 FR 40140, 40145 (Sept. 2,1983).
    \768\ 30 U.S.C. 1265(b)(19).
    \769\ 47 FR 12596 (Mar. 23, 1982).
---------------------------------------------------------------------------

    Some commenters claimed that the proposed rule appeared to have 
little applicability outside Appalachia and suggested that revegetation 
issues should be resolved on a state-by-state basis. Section 780.12(g) 
is sufficiently flexible to accommodate special circumstances in any 
location within the nation, as well as geographic variability within an 
individual state program. Our reference to circumstances or research 
from Appalachia or other areas of the nation should not be misconstrued 
to mean those locations are the sole focus of these regulations.
    Several commenters recommended that we not codify the revegetation 
requirements in the national regulations, but instead encourage the 
development of rules, policies, or procedures on a state-by-state 
basis. We have declined to make this change. The regulations provide 
sufficient discretion for individual states and tribes to accommodate 
their unique conditions. For instance, the revegetation plan permitting 
requirements within Sec.  780.12(g)(2)(i) mandate that the proposed 
vegetative cover be consistent with the plant communities described in 
the permit application. The reference to ``native'' plant communities 
in this section makes clear that the revegetation requirements are 
based on site-specific conditions. Therefore, we have not made changes 
to the rule as a result of these comments.
    Several commenters alleged that Sec.  816.111 is inconsistent with 
sections 515(b)(19) and (20) of SMCRA.\770\ SMCRA section 515(b)(19) 
allows the use of ``introduced species'' instead of native species 
where such use is ``desirable and necessary to achieve the approved 
postmining land use plan.'' SMCRA section 515(b)(20) creates another 
limited exception to the requirement to use native species when the 
regulatory authority issues ``a written finding approving a long-term, 
intensive, agricultural postmining land use.'' According to these 
commenters, the statute provides no other exception from the 
requirement to establish a diverse, effective and permanent vegetative 
cover of the same seasonal variety native to the area. These commenters 
argue that Sec.  816.111(a)(3) and (a)(4) are inconsistent with SMCRA 
because they would create exceptions to the revegetation requirements 
for rock piles, water areas, and other non-vegetation features and for 
any approved ``impervious surface'' in support of the postmining land 
use.
---------------------------------------------------------------------------

    \770\ 30 U.S.C. 1265(b)(19) and (20).
---------------------------------------------------------------------------

    We disagree that there is any inconsistency. Our regulations at 
Sec.  816.111 are fully consistent with SMCRA. SMCRA recognizes the 
legitimacy of appurtenant features that support the postmining land use 
that might not support any vegetation, such as water features, rock 
piles for wildlife habitat, or parking lots. These non-vegetative 
features are authorized by section 515(b)(2) of SMCRA,\771\ which 
allows for higher or better postmining land uses. These features are 
allowable pursuant to Sec.  701.5, which defines ``land use'' as 
``specific uses or management-related activities . . . [which] may 
include land used for support facilities that are an integral part of 
the use.'' Additionally, it would be unreasonable to expect parking 
lots and other impervious surfaces or water features such as stock 
ponds that are legitimate and integral parts of the approved postmining 
land use to support vegetation.\772\
---------------------------------------------------------------------------

    \771\ 30 U.S.C. 1265(b)(2).
    \772\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    One commenter expressed concern about the apparent removal of 
language relative to the revegetation of lands designated for cropland 
postmining land use. Several commenters stated that the proposed rule 
is problematic because sixty percent of all permitted land is cropland, 
and exemptions are necessary in order to use non-native species to 
accommodate cropland postmining land uses. In response, we note that 
provisions containing exceptions to the general requirement to use 
native species in order to achieve the postmining land use, including 
cropland use, have been retained in the rule. The language relating to 
cropland revegetation previously found within Sec.  816.111 has been 
relocated from the performance standards to the permit requirements and 
is now part of the revegetation plan requirements at Sec.  
780.24(a)(2). The provisions related to postmining land uses (including 
cropland) can now be found in the final rule at Sec.  780.12(g)(3)(i) 
and (g)(5) (proposed as Sec.  780.12(g)(6)).
    Proposed paragraph (b) requires that the reestablished vegetative 
cover comply with the revegetation plan approved in accordance with 
proposed Sec.  780.12(g). It further requires in paragraph (b)(4) that 
vegetative cover ``[b]e capable of stabilizing the soil surface and, in 
the long term, preventing erosion in excess of what would have occurred 
naturally had the site not been disturbed.'' Paragraph (b)(5) requires 
that the vegetative cover ``[n]ot inhibit the establishment of trees 
and shrubs when the revegetation plan approved in the permit requires 
the use of woody plants.'' We invited comment on whether proposed 
paragraphs (b)(4) and (5) strike the proper balance between controlling 
erosion and promoting the establishment of native trees and shrubs. 
Commenters indicated that the language provided sufficient balance, and 
we are adopting the rule as proposed.
    We received comments that the requirement in paragraph (b)(4), 
which is discussed above, is subjective and would be impossible to 
achieve. We acknowledge that background erosion levels on undisturbed 
sites vary from region to region and site to site, depending on 
geology, soils, topography, and climate. The final rule provides an 
exception for unavoidable erosion that is a consequence of the natural 
conditions of the site, if the extent of unavoidable erosion is 
determinable by comparison to other undisturbed areas with the same or 
similar conditions. This requirement is reasonable and allows the 
regulator to consider regional differences. We are not changing the 
rule in response to this comment.
    In response to paragraph (b)(5), a commenter inquired as to who 
decides whether the re-established vegetative cover inhibits the 
establishment of trees and shrubs. The regulatory authority, based on 
state specific regulations contained in the approved program, has the 
discretion to make this determination.
    Commenters also objected to the requirement in proposed paragraph 
(d)(2) to use native hay mulch to the extent it is commercially 
available. While noting that ``hay mulch'' is not a defined term, these 
commenters stated that the term typically refers to grass and legumes 
cut, dried, and stored for use with livestock, and not to straw mulch 
(baled stalks of a harvested wheat or similar crop), which is more 
typically used to protect soils. A commenter also raised a question 
regarding commercial availability of native hay seed stock for 
revegetation and questioned the efficacy of this requirement. We agree 
with the commenters that the use of ``hay mulch,'' in consideration of 
its commonly understood meaning, is not preferred as a mechanism for 
protecting soils, and certainly should not be mandated. Therefore, we 
have eliminated the requirement to use ``native hay mulch.''

[[Page 93303]]

Previous Sec.  816.113: Revegetation: Timing
    We have removed and reserved previous Sec.  816.113 for the reasons 
discussed in the preamble to the proposed rule. Specifically, previous 
Sec.  816.113 has been redesignated and moved to final rule Sec.  
816.111.\773\
---------------------------------------------------------------------------

    \773\ 80 FR 44436, 44574 (Jul. 27, 2015).
---------------------------------------------------------------------------

Previous Sec.  816.114: Revegetation: Mulching and Other Soil 
Stabilizing Practices
    We have removed and reserved previous Sec.  816.114 for the reasons 
discussed in the preamble to the proposed rule. Specifically, previous 
Sec.  816.114 has been redesignated moved to final rule Sec.  
816.111.\774\
---------------------------------------------------------------------------

    \774\ 80 FR 44436, 44574 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 816.115: How long am I responsible for revegetation after 
planting?
    We are finalizing Sec.  816.115 as proposed. We received no 
comments on this section.
Section 816.116: What requirements apply to standards for determining 
revegetation success?
    As discussed in the preamble to the proposed rule, we proposed to 
modify our regulations at Sec.  816.116 about the standards for 
determining revegetation success.\775\ After evaluating the comments 
that we received, we are adopting the section as proposed, with the 
following exceptions and explanations.
---------------------------------------------------------------------------

    \775\ 80 FR 44436, 44574-76 (Jul. 27, 2015).
---------------------------------------------------------------------------

    We proposed to reorient our previous regulations concerning 
revegetation success standards away from a focus on a single postmining 
land use, which may or may not be implemented, toward standards 
pertinent to a determination of whether the site has been restored ``to 
a condition capable of supporting the uses which it was capable of 
supporting prior to any mining, or higher or better uses of which there 
is reasonable likelihood,'' as required by section 515(b)(2) of 
SMCRA.\776\ Commenters disagreed with this proposed switch in focus and 
claimed that it would be contrary to statutory requirements. The 
commenters opined that sections 515(b)(19) and (20) \777\ set the 
minimum requirements for revegetation, and we may not establish 
different requirements through a rulemaking. Similarly and without 
elaboration, commenters also opined that the proposed standards for 
determining revegetation success--that the vegetation be ``adequate to 
demonstrate restoration of premining land use capability and must 
reflect'' the revegetation plan--are inconsistent with 515(b)(19) of 
SMCRA. We disagree; this section, along with other sections of the 
final rule, actually implements both of these statutory sections. In 
particular, this section defines how the regulatory authority will 
determine that the reclamation performed at the site complies with 
these sections 515(b)(19) and (20) of SMCRA: \778\ Through standards 
for evaluating revegetation success and statistically valid sampling 
techniques for measuring revegetation success. Other sections of the 
rule, such as Sec.  780.12(g), which is cross-referenced in paragraph 
(b), require a diverse, effective, permanent vegetative cover that is 
consistent with the native vegetative plant communities and natural 
succession process within the permitted and surrounding areas.
---------------------------------------------------------------------------

    \776\ 30 U.S.C. 1265(b)(2).
    \777\ 30 U.S.C. 1265(b)(19) and (20).
    \778\ 30 U.S.C. 1265(b)(19) and (20).
---------------------------------------------------------------------------

    Additionally, some commenters asserted that the proposed 
regulations, which focus on establishing native vegetation, do not 
sufficiently allow for the variety of postmining land uses that exist 
outside the forested regions of Appalachia. These commenters suggested 
that the regulations do not provide for a variety of agricultural 
lands, reestablishment of native grasslands, certain types of managed 
wildlife areas, industrial lands, commercial lands, or recreational 
lands. The commenters also claimed these requirements have nothing to 
do with stream protection. In response, we note that the 
reestablishment of native species vegetation is of primary importance 
in reclaiming mined lands, and that the reclamation of these lands can 
have significant impacts on a stream's watershed and the health of that 
stream. Benefits to streams from the revegetation of terrestrial lands 
include the return of the appropriate surface water flow regimes and 
reestablishment of the proper nutrients and organic matter to the 
aquatic habitat. Regardless of the postmining land use, the final 
regulations are sufficiently flexible to allow planting of appropriate 
plant species specific to the various regions and local habitats, 
within limitations identified at Sec.  780.12(g).
    Final paragraph (a) is substantively identical to our previous 
regulation and provides the regulatory authority the discretion to 
select standards for revegetation success and statistically valid 
sampling techniques for measuring that success. One commenter requested 
that we remove the requirement that statistically valid sampling 
techniques must be used to measure revegetation success because it may 
be difficult to comply with this requirement in small areas with a 
limited sample size. We are not making any changes as a result of this 
comment. For a sample to be scientifically valid, it must present 
results within acceptable bounds of statistical certainty. Each 
regulatory authority retains the discretion to approve a model 
appropriate to the circumstances, as long as it uses statistically 
valid sampling techniques. For example, current practices, when 
appropriate, allow for small areas to be analyzed along with other 
areas; this type of grouping provides the larger sample size that will 
support the use of valid sampling techniques.
    Commenters also expressed concern about the requirement in proposed 
Sec.  816.116(b) to demonstrate restoration of premining land use 
capability using revegetation success standards. These commenters 
alleged that this requirement would impose an unnecessary burden placed 
on the operators and regulatory authorities, as these standards would 
be hard to quantify other than by planting and sampling the vegetation 
of many different seed mixes to determine if the premining capability 
has returned. After consideration, we agree and have eliminated the 
reference to revegetation success as part of an adequate demonstration 
of the affected land's premining capability.
    Section 816.116(b)(4) provides that the standards of revegetation 
success must reflect the postmining land use established under section 
780.24, but only to the extent that the approved postmining land use 
will be implemented before final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter. Otherwise, the site must be revegetated 
in a manner that will restore native plant communities, and the 
revegetation success standards for the site must reflect this 
requirement. Commenters claim that this paragraph inappropriately 
allows the regulatory authority to create exceptions to the 
requirements of section 515(b)(19).\779\ These commenters also asserted 
that sections 515(b)(19) and 515(b)(20) of SMCRA \780\ strictly limit 
exceptions to the revegetation requirements to only two situations; 
where the permittee may use introduced species when desirable and 
necessary to achieve the approved postmining land use plan, and where 
the regulatory authority has approved a long-term, intensive, 
agricultural postmining land use. These commenters

[[Page 93304]]

also opposed the exemption, now in final rule 816.116(c)(3), for ``land 
actually used for cropland'' because cropland is not one of the two 
exemptions from the revegetation requirements set out in SMCRA sections 
515(b)(19) and 515(b)(20).\781\ We are not changing the rule in 
response to these comments because they fail to take into account other 
relevant portions of the statute. As we discussed in our response to 
comments made on Sec.  816.111, which is closely related to Sec.  
816.116, our regulations at Sec.  816.116(b)(4), (c)(3), and (g) are 
also directly and specifically authorized by section 515(b)(19) of 
SMCRA.\782\ These paragraphs base revegetation success standards on the 
postmining land use that is achieved at the time of final bond release. 
If the permittee achieves postmining land use before final bond 
release, consistent with section 515(b)(19) of SMCRA,\783\ its success 
in doing so will count toward the measurement of its revegetation 
success. If, however, it does not achieve the postmining land by that 
time, it will need to return the site to native plants. This is 
consistent with section 515(b)(19) of SMCRA \784\ because it allows the 
permittee to use introduced species only as necessary to achieve the 
postmining land use. Of course, our regulations at paragraph (c)(3), as 
described in the preamble discussion of Sec.  816.111, also include an 
exception for ``long-term intensive agricultural postmining land use'' 
to give effect to section 515(b)(20) of SMCRA.\785\
---------------------------------------------------------------------------

    \779\ 30 U.S.C. 1265(b)(19).
    \780\ 30 U.S.C. 1265(b)(19) and (20).
    \781\ 30 U.S.C. 1265(b)(19) and (20).
    \782\ Id.
    \783\ 30 U.S.C. 1265(b)(19).
    \784\ Id.
    \785\ 30 U.S.C. 1265(b)(20).
---------------------------------------------------------------------------

    In addition to failing to give effect to section 515(b)(19) of 
SMCRA,\786\ the interpretation espoused by the commenters fails to give 
effect to section 515(b)(2) of SMCRA \787\ which, as previously 
mentioned, requires restoration of land ``to a condition capable of 
supporting the uses which it was capable of supporting prior to any 
mining, or higher or better uses of which there is a reasonable 
likelihood. . . .'' As explained in Part V of the preamble to the 
proposed rule,\788\ this section is consistent with section 515(b)(2), 
(19), and (20) \789\ by requiring revegetation success standards that 
support uses which the site was capable of supporting prior to any 
mining or reasonably likely higher or better uses.\790\ Thus, the 
regulation as we are finalizing, is designed in accordance with the 
Act.
---------------------------------------------------------------------------

    \786\ 30 U.S.C. 1265(b)(19).
    \787\ 30 U.S.C. 1265(b)(2).
    \788\ 80 FR 44436, 44446 (Jul. 27, 2015).
    \789\ 30 U.S.C. 1265(b)(2), (19), and (20).
    \790\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Some commenters requested that we retain the existing regulations 
in Sec.  816.116 regulations pertaining to revegetation standards and 
introduced species because they adhere much more closely to SMCRA than 
the proposed regulations. According to the commenters, SMCRA requires 
revegetation standards to focus on the approved postmining land use. We 
disagree. Proposed and final rule Sec.  816.116(b) takes into account 
both the postmining land use approved by the regulatory authority and 
the premining land use capability of the permitted site. These shared 
goals appear within SMCRA at sections 515(b)(19) and 515(b)(2).\791\ 
These commenters also claim that under SMCRA a native vegetative cover 
is necessary, but ``introduced species may be used in the revegetation 
process where desirable and necessary to achieve the approved 
postmining land use plan'' regardless of when that plan is completed; 
therefore, under SMCRA, revegetation with native species is only 
necessary where there is no approved post-mining land use, and 
conversely, when there is a post-mining use, revegetation should be 
consistent with that use and not require native vegetation. We 
disagree. These commenters have misinterpreted SMCRA. In all cases, 
sections 508(a)(3) and (4) of SMCRA \792\ require identification of a 
postmining land use before a permit is approved; therefore, to require 
native species only when there is no postmining land use is illogical. 
We have further discussed native species use in this preamble within 
final rule Sec.  780.16(c), above.
---------------------------------------------------------------------------

    \791\ 30 U.S.C. 1265(b)(2) and (b)(19).
    \792\ 30 U.S.C. 1258(a)(3) and (4).
---------------------------------------------------------------------------

    Other commenters criticized paragraph (d) for allegedly being 
contrary to section 515(b)(19) of SMCRA.\793\ Paragraph (d) provides 
that ``ground cover, production, and stocking of the revegetated area 
will be considered equal to the approved success standards for those 
parameters when the measured values are not less than 90 percent of the 
success standard.'' These commenters interpret section 515(b)(19) of 
SMCRA \794\ to require that the minimum revegetation success rate needs 
to be at least equal in extent of cover to the natural vegetation of 
the area. We are adopting this section as proposed. Paragraph (d), 
however, which was previously located at Sec.  816.116(a)(2), has been 
a part of our rules since 1979 and has not been substantively changed 
since that time. The preamble to the 1979 rule explains that we adopted 
the 90% equivalency provision in recognition of the fact that climatic 
variations may affect productivity in the two consecutive growing 
seasons during which production is measured to determine revegetation 
success.\795\ After review, we have determined that this reasoning is 
still valid and are retaining this provision.
---------------------------------------------------------------------------

    \793\ 30 U.S.C. 1265(b)(19).
    \794\ 30 U.S.C. 1265(b)(19).
    \795\ 44 FR 14902,15237 (Mar. 13, 1979).
---------------------------------------------------------------------------

    Finally, the commenters considered paragraph (g) to be inconsistent 
with Sec.  515(b)(19) because, according to them, it would 
inappropriately exempt areas that are ``to be developed for industrial, 
commercial, or residential use'' from the revegetation requirements. We 
are adopting paragraph (g) as proposed. Paragraph (g) exempts areas 
with impervious surfaces like roads, parking lots, and other 
structures, which are frequently part of industrial, commercial, and 
residential uses, from counting against the measurement of revegetation 
success. Removing this requirement is impracticable because it is 
impossible to revegetate these types of surfaces. To the extent that 
portions of the site are not covered in an impervious surface, those 
portions must be revegetated sufficient to ``control erosion.''
    In addition to comments received about how this section relates to 
sections 515(b)(19) and (20) of SMCRA,\796\ we received five other 
comments on this section. First, a commenter requested that we use the 
term ``reclamation'' instead of ``restoration'' in the introductory 
language to paragraph (b). As discussed above, we have deleted the 
clause to which the commenter was referring. As revised, this paragraph 
requires assessment of the success of revegetation in relation to 
establishing approved postmining mining land use; it does not require 
that the vegetation demonstrate that premining capability has been 
restored.
---------------------------------------------------------------------------

    \796\ 30 U.S.C. 1265(b)(19) and (20).
---------------------------------------------------------------------------

    Second, a commenter expressed concern that the proposed rule would 
require reclamation that will support both the premining land use and 
any higher or better uses selected in the reclamation plan. 
Specifically, the commenter explained that if the ``approved postmining 
land use is pasture, but the land was used for cropland before mining, 
proposed Sec. Sec.  780.12(e) and 816.22, require that the soil be 
reconstructed in a manner that would restore the site's capability to 
support cropland.'' The commenter

[[Page 93305]]

disagreed with this requirement because it requires additional 
reclamation on the basis of pure speculation that the site might one 
day support a different land use. We decline to make changes to Sec.  
811.116 based on the comment. Section 508(a)(2) of SMCRA \797\ requires 
the development of a reclamation plan demonstrating the capability of 
the land prior to any mining to support a variety of uses. Similarly, 
section 515(b)(2) of SMCRA \798\ requires that the reclamation actually 
``restore land affected to a condition capable of supporting the uses 
which it was capable of supporting prior to any mining, or higher or 
better uses of which there is reasonable likelihood, as long as such 
use or uses do not present any actual or probable hazard to public 
health or safety or pose any actual or probable threat of water 
diminution or pollution, and the permit applicants' declared proposed 
land use following reclamation is not deemed to be impractical or 
unreasonable, inconsistent with applicable land use policies and plans, 
involves unreasonable delay in implementation, or is violative of 
Federal, State, or local law [;]''. Therefore, our regulations 
requiring the restoration of the premining capability of the land is in 
harmony with SMCRA. In most cases, all that is needed to restore the 
premining capability of the land is to restore appropriate topsoil 
thickness and rooting medium--not revegetation. As explained, restoring 
the capability of the land to support a variety of postmining land uses 
beyond the immediately selected postmining land use is in fact what 
SMCRA requires. The revegetation requirements apply only to the 
postmining land use, not to other uses that the land would have been 
capable of before mining.
---------------------------------------------------------------------------

    \797\ 30 U.S.C. 1258(a)(2).
    \798\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Third, several commenters suggested that proposed paragraph (b)(4), 
which would have required the establishment of certain types of 
vegetation before the end of the vegetation responsibility liability 
period, should be changed to require establishment of that vegetation 
``prior to bond release.'' These commenters noted that certain land 
uses, such as industrial or commercial uses, have no vegetation 
responsibility period. To address this comment, we are changing the 
language within paragraph (b)(4) to require the achievement of all 
postmining land use requirements prior to final bond release instead of 
the expiration of the revegetation liability period. We also point out, 
however, that although certain features, such as buildings, roads, 
parking lots, and bodies of water that do not support vegetation are 
not directly subject to the revegetation requirements, industrial and 
commercial postmining land uses may include areas that require 
revegetation and are subject to the revegetation requirements.
    Fourth, several commenters encouraged us not to set national 
revegetation standards because of drastic differences between the 
regions with respect to vegetation types, precipitation amounts, 
humidity, and temperature. We recognize the differences in vegetation 
across the nation. The final rule includes minimum requirements for 
native species that allow for the differences between the regions with 
specific exceptions for introduced species as established within Sec.  
780.12(g)(3) and (4). Moreover, we have retained the measured values of 
the success standards from our previous regulations. As prescribed in 
Sec.  780.12(g), it is primarily mine operators who will determine the 
types of vegetation at each site as approved by the regulatory 
authority.
    Finally, a fifth commenter asserted, with respect to paragraph (c), 
that while it is possible after mining to establish native plant 
communities that provide a diverse, effective, and permanent vegetative 
cover comprised of species native to the area, those plant communities 
often differ significantly from the ones that existed prior to mining, 
primarily because of the requirements in our rules to replace the 
topsoil in a uniform thickness. However, in Sec.  816.22(e)(1)(v) of 
our rule, we have provided an exception to this requirement that allows 
the thickness to vary when consistent with the postmining land use and 
when variations are necessary or desirable to achieve specific 
revegetation goals and ecological diversity, as set forth in the 
revegetation plan developed under Sec.  780.12(g) of this chapter and 
approved as part of the permit. Therefore, uniform soil thickness 
should not be a barrier to the revegetation requirements in Sec.  
780.12(g).
    Paragraphs (c)(1) and (2) require the description of the diversity 
and the areal extent of species respectively. One commenter recommended 
that these requirements not apply to land actually used for cropland 
after the completion of regrading and redistribution of soil materials. 
We disagree because these data are necessary to demonstrate compliance 
with the Sec.  816.97(g) performance standards. Under that provision, 
in instances where cropland is the postmining land use and where 
appropriate for wildlife-management and crop-management practices, the 
operator must intersperse the crop fields with trees, hedges, or fence 
rows to break up large blocks of monoculture and to diversify habitat 
types for birds and other animals. Thus, we are retaining paragraphs 
(c)(1) and (2) as proposed.
    A commenter requested that we define the phrase ``areal 
distribution,'' as used in paragraph (c)(2) where we require that the 
standards for determining revegetation success include the areal 
distribution of species required to be present. We disagree that a 
specific regulatory definition of this term is needed. In general, this 
paragraph requires that the replanting of the vegetation needs to 
resemble the general spatial distribution of plant species as they 
would be found in a natural setting. For example, some species may 
clump or grow in clusters, while others may be scattered or more evenly 
distributed; this premining vegetative characteristic should be 
exhibited within the reclaimed area as well.
    Proposed paragraph (d) was substantively identical to the second 
sentence of paragraph (a)(2) of our previously existing regulations 
which established statistical confidence requirements for revegetation 
sampling techniques and statistical adequacy standards for determining 
when revegetation success standards have been met for ground cover, 
production, and stocking. In paragraph (d) of the preamble,\799\ we 
invited comment on whether our statistical confidence interval 
requirements are appropriate in all situations. Several commenters 
responded that the current statistical confidence intervals are 
effective; some of these commenters who supported them also considered 
them unnecessary in some cases. Other commenters considered them 
ineffective and unnecessary. Commenters suggested that due to regional 
variability, a single statistical confidence interval would not be 
appropriate nationally. Statistical confidence is important to prove 
whether revegetation has been successful. A confidence interval is a 
range of values describing the uncertainty surrounding an estimate, so 
it is merely a way to numerically represent the certainty or 
uncertainty in any given situation. Our regulation requires 
revegetation that is ``not less than 90 percent of the success 
standard, using a 90-percent statistical confidence interval.'' It is 
the mining operator and the regulatory authority who will determine 
what that ``success standard''

[[Page 93306]]

is, a standard that should take into account regional concerns and 
ecological conditions. It is also the mining operator and the 
regulatory authority that, in the reclamation plan, will choose the 
actual vegetation type or density that the operator must achieve. Our 
rule merely establishes in a way that is statistically valid throughout 
the country that the permittee has complied with that plan. We have, 
therefore, made no change to the requirement and are adopting this 
provision as proposed.
---------------------------------------------------------------------------

    \799\ See 80 FR 44436, 44575 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 816.131: What actions must I take when I temporarily cease 
mining operations?
    We are finalizing Sec.  816.131 as proposed. We received no 
comments on this section.
Section 816.132: What actions must I take when I permanently cease 
mining operations?
    We are finalizing Sec.  816.132 as proposed. We received no 
comments on this section.
Section 816.133: What provisions concerning postmining land use apply 
to my operation?
    We are finalizing Sec.  816.133 as proposed. We received no 
comments on this section.
Section 816.150: What are the general requirements for haul and access 
roads?
Final Paragraph (b): Performance Standards
    Proposed paragraph (b)(4) prohibited all haul or access roads from 
causing or contributing to, directly or indirectly, violations of water 
standards applicable to receiving waters. We have revised final 
paragraph (b)(4) to clarify, that each road must be located, designed, 
constructed, used, maintained, and reclaimed so that it does not 
violate any applicable water-quality standards adopted under the 
authority of section 303(c) of the Clean Water Act, not just applicable 
receiving waters. This is consistent with the remainder of the final 
rule. We received no comments on this section.
Section 816.151: What additional requirements apply to primary roads?
    We are finalizing Sec.  816.151 as proposed. We received no 
comments on this section.
Section 816.180: To what extent must I protect utility installations?
    We are finalizing Sec.  816.180 as proposed. We received no 
comments on this section.
Section 816.181: What requirements apply to support facilities?
    We are finalizing Sec.  816.181 as proposed. We received no 
comments on this section.
Previous Sec.  816.200: Interpretative Rules Related to General 
Performance Standards
    We have removed and reserved previous Sec.  816.200 for the reasons 
discussed in the preamble to the proposed rule.\800\
---------------------------------------------------------------------------

    \800\ 80 FR 44436, 44576 (Jul. 27, 2015).
---------------------------------------------------------------------------

M. Part 817--Permanent Program Performance Standards--Underground 
Mining Activities

Section 817.1: What does this part do?
    With the exception of altering the title of this section for 
clarity, we are finalizing Sec.  817.1 as proposed. We received no 
comments on this section.
Section 817.2: What is the objective of this part?
    We are finalizing Sec.  817.2 as proposed. We received no comments 
on this section.
Section 817.10: Information Collection
    Section 817.10 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 817.
Section 817.11: What signs and markers must I post?
Final Paragraph (a): General Specifications
    We inadvertently referred to ``surface'' mining activities in the 
proposed rule. In the final rule we have replaced ``surface'' with 
``underground.'' With the exception of this modification, we are 
finalizing Sec.  817.11 as proposed. We received no comments on this 
section.
Section 817.13: What special requirements apply to drilled holes, 
wells, and exposed underground openings?
    This section requires the mine operator to cap, seal, backfill, or 
otherwise properly manage each shaft, drift, adit, tunnel, exploratory 
hole, entryway, or other opening to the surface from underground. A 
commenter alleged that the proposed rule should be updated to provide 
clarification on performance standard requirements where an abandoned 
mine land site exists (and associated sinkholes, drifts, adits) within 
an active permit area, but the applicant has no intention to re-mine or 
otherwise disturb the abandoned mine land. The commenter suggested that 
the applicant should not be required to reclaim an abandoned mine land 
site just because it is located within an active permit. Final 
paragraph (e)(1) requires that the permittee permanently seal any 
underground opening unless the regulatory authority approves use of the 
hole or well for water monitoring purposes or authorizes other 
management of the hole or well. Final paragraph (f)(1) requires that 
the permittee seal these underground openings unless the regulatory 
authority approves another use and finds that it will not adversely 
affect the environment or public health and safety. An opening to an 
underground mine, pre-law or not, presents a risk to public health and 
safety. For this reason, we are finalizing Sec.  817.13 as proposed.
Section 817.22: How must I handle topsoil, subsoil, and other plant 
growth media?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.22, which is the surface mining 
counterpart to Sec.  817.22.
Section 817.34: How must I protect the hydrologic balance?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.34, which is the surface mining 
counterpart to Sec.  817.34. In addition, as discussed in the general 
comments Section IV. K. we have added language to final rule Sec.  
817.34(a)(2). This new language makes it clear that while underground 
operations must prevent material damage to the hydrologic balance 
outside the permit area, if a regulatory authority determines that the 
permit application affirmatively demonstrates that the proposed 
operation, which may include temporary subsidence that can be repaired, 
has been designed to prevent material damage of the hydrologic balance 
outside the permit area, pursuant to Sec.  817.121(c), the permit may 
be issued.
Section 817.35: How must I monitor groundwater?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.35, which is the surface mining 
counterpart to Sec.  817.35.

[[Page 93307]]

Section 817.36: How must I monitor surface water?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.36, which is the surface mining 
counterpart to Sec.  817.36.
Section 817.37: How must I monitor the biological condition of streams?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.37, which is the surface mining 
counterpart to Sec.  817.37.
Section 817.38: How must I handle acid-forming and toxic-forming 
materials?
    Section 817.38 describes how the operator must handle acid-forming 
and toxic-forming materials. Although many aspects of this section are 
substantively identical to the surface mining counterpart found at 
Sec.  816.38, there are several differences that resulted in unique 
comments for this section. We received several comments from regulatory 
authorities and operators, recommending that we delete paragraph (a) of 
this section. Commenters asserted that paragraph (a) erroneously 
presupposes that all coal seams and the pit floor are acid forming and 
toxic forming materials. The commenters were particularly concerned 
with the requirement to specify that exposed coal seams and the stratum 
immediately beneath the lowest coal seam mined must be covered with a 
layer of compacted material with a hydraulic conductivity at least two 
orders of magnitude lower than the hydraulic conductivity of the 
adjacent less-compacted spoil to minimize contact and interaction with 
water. For the same reasons set forth in our preamble to Sec.  816.38, 
we agree in part with the commenters.
    We are revising proposed paragraph (a) to align more with 
underground mining issues related to the handling acid-forming or toxic 
forming materials. We are retaining the first part of paragraph (a) 
with a few changes that are specific to underground mining. We have 
revised paragraph (a) to clarify that for the face-up area you must 
identify potential acid-forming and toxic-forming materials in 
overburden strata and the stratum immediately below the coal seam to be 
mined. If the stratum immediately below the coal seam to be mined 
contains acid-forming or toxic-forming material, you must develop a 
plan to prevent any adverse hydrologic impacts that might otherwise 
develop as a result of exposure of that stratum.
    The rationale for requiring a plan to prevent any adverse 
hydrologic impacts that might otherwise develop as a result of exposure 
of that stratum is the same discussed in preamble for Sec.  816.38.
    Several commenters questioned why paragraph (c) was included in 
Sec.  817.38 of the proposed rule. They asserted that these 
requirements apply to surface coal mining not underground mining. We 
agree. The inclusion of paragraph (c) was an error and we have deleted 
paragraph (c) from the final rule and renumbered the other paragraphs 
accordingly.
Section 817.39: What must I do with exploratory or monitoring wells 
when I no longer need them?
    To accommodate renumbering and final rule changes in part 800, we 
have renumbered references to part 800 in this section. With the 
exception of this renumbering, we are finalizing Sec.  817.39 as 
proposed. We received no comments on this section.
Section 817.40: What responsibility do I have to replace water 
supplies?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.40, which is the surface mining 
counterpart to Sec.  817.40.
Section 817.41: Under what conditions may I discharge water and other 
materials into an underground mine?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.41, which is the surface mining 
counterpart to Sec.  817.41.
Section 817.42: What Clean Water Act requirements apply to discharges 
from my operation?
    We have modified this section, including the title; however, these 
modifications are discussed in final rule Sec.  816.42, which is the 
surface mining counterpart to Sec.  817.42.
Section 817.43: How must I construct and maintain diversions?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.43, which is the surface mining 
counterpart to Sec.  817.43.
Section 817.44: What restrictions apply to gravity discharges from 
underground mines?
    We are finalizing Sec.  817.44 as proposed. We received no comments 
on this section.
Section 817.45: What sediment control measures must I implement?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.45, which is the surface mining 
counterpart to Sec.  817.45.
Section 817.46: What requirements apply to siltation structures?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.46, which is the surface mining 
counterpart to Sec.  817.46.
Section 817.47: What requirements apply to discharge structures for 
impoundments?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.47, which is the surface mining 
counterpart to Sec.  817.47.
Section 817.49: What requirements apply to impoundments?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.49, which is the surface mining 
counterpart to Sec.  817.49.
Section 817.55: What must I do with sedimentation ponds, diversions, 
impoundments, and treatment facilities after I no longer need them?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.55, which is the surface mining 
counterpart to Sec.  817.55.
Section 817.56: What additional performance standards apply to mining 
activities conducted in or through an ephemeral stream?
    Section 817.56, like Sec.  816.56, is a new section that we have 
added to address confusion expressed by commenters about which 
requirements in the rule apply to the various types of streams. 
Specifically, these commenters noted that proposed Sec.  816.57, which 
would have applied to surface mining activities in, through, or 
adjacent to perennial or intermittent streams, also contained cross-
references to proposed Sec.  n 780.28(b)(3), which would have addressed 
the establishment of riparian corridors for ephemeral streams. (These 
sections have counterparts in Sec. Sec.  817.57 and 784.28 that address 
streams impacted by surface activities conducted in conjunction with 
underground mining.) To alleviate any confusion, we have added new 
Sec.  817.56 which sets out the requirements for ephemeral streams. 
These include requirements that are counterparts to those for 
intermittent and perennial streams such as requirements to comply with 
the Clean Water Act, establish a

[[Page 93308]]

postmining drainage pattern and stream channel configuration that is 
consistent with the approved permit, and establish a 100-foot 
streamside vegetative corridor that complies with the standards in 
Sec.  817.57(d)(1)(iv) through (4) if activities are conducted through 
an ephemeral stream. The comparable requirements for the streamside 
vegetative corridors for intermittent and perennial streams are still 
found in Sec.  817.57.
Section 817.57: What additional performance standards apply to mining 
activities conducted in or through a perennial or intermittent stream 
or on the surface of land within 100 feet of a perennial or 
intermittent stream?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.57, which is the surface mining 
counterpart to Sec.  817.57.
Section 817.59: How must I maximize coal recovery?
    We are finalizing Sec.  817.59 as proposed. We received no comments 
on this section.
Section 817.61: Use of Explosives: General Requirements
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.61, which is the surface mining 
counterpart to section 817.61.
Section 817.62: Use of Explosives: Preblasting Survey
    We are finalizing Sec.  817.62 as proposed. We received no comments 
on this section.
Section 817.64: Use of Explosives: General Performance Standards
    We are finalizing Sec.  817.64 as proposed. We received no comments 
on this section.
Section 817.66: Use of Explosives: Blasting Signs, Warnings, and Access 
Control
    We are finalizing Sec.  817.66 as proposed. We received no comments 
on this section.
Section 817.67: Use of Explosives: Control of Adverse Effects
    We are finalizing Sec.  817.67 as proposed. We received no comments 
on this section.
Section 817.68: Use of Explosives: Records of Blasting Operations
    We are finalizing Sec.  817.68 as proposed. We received no comments 
on this section.
Section 817.71: How must I dispose of excess spoil?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.71, which is the surface mining 
counterpart to section 817.71.
Section 817.74: What special requirements apply to disposal of excess 
spoil on a preexisting bench?
    We are finalizing Sec.  817.74 as proposed. We received no comments 
on this section.
Section 817.81: How must I dispose of coal mine waste?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.81, which is the surface mining 
counterpart to Sec.  817.81.
Section 817.83: What special requirements apply to coal mine waste 
refuse piles?
    We are finalizing Sec.  817.83 as proposed. We received no comments 
on this section.
Section 817.84: What special requirements apply to coal mine waste 
impounding structures?
    We are finalizing Sec.  817.84 as proposed. We received no comments 
on this section.
Section 817.87: What special requirements apply to burning and burned 
coal mine waste?
    We are finalizing Sec.  817.87 as proposed. We received no comments 
on this section.
Section 817.89: How must I dispose of noncoal mine wastes?
    We are finalizing Sec.  817.89 as proposed. We received no comments 
on this section.
Section 817.95: How must I protect surface areas from wind and water 
erosion?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.95, which is the surface mining 
counterpart to section 817.95.
Section 817.97: How must I protect and enhance fish, wildlife, and 
related environmental values?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.97, which is the surface mining 
counterpart to Sec.  817.97.
Section 817.99: What measures must I take to prevent and remediate 
landslides?
    We are finalizing Sec.  817.99 as proposed. We received no comments 
on this section.
Section 817.100: What are the standards for conducting reclamation 
contemporaneously with mining?
    We are finalizing Sec.  817.100 as proposed. We received no 
comments on this section.
Section 817.102: How must I backfill surface excavations and grade and 
configure the land surface?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.102, which is the surface mining 
counterpart to Sec.  817.102.
Section 817.106: What special provisions for backfilling, grading, and 
surface configuration apply to previously mined areas with a 
preexisting highwall?
    We are finalizing Sec.  817.106 as proposed. We received no 
comments on this section.
Section 817.107: What special provisions for backfilling, grading, and 
surface configuration apply to operations on steep slopes?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.107, which is the surface mining 
counterpart to Sec.  817.107.
Section 817.111: How must I revegetate areas disturbed by mining 
activities?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.111, which is the surface mining 
counterpart to Sec.  817.111.
Previous Sec.  817.113: Revegetation: Timing
    Like section 816.113, this section's surface mining counterpart, we 
have removed and reserved previous Sec.  817.113 for the reasons 
discussed in the preamble to the proposed rule. Specifically, previous 
Sec.  817.113 has been redesignated and moved to final rule Sec.  
817.111.\801\
---------------------------------------------------------------------------

    \801\ 80 FR 44436, 44574 (Jul. 27, 2015).
---------------------------------------------------------------------------

Previous Sec.  817.114: Revegetation: Mulching and Other Soil 
Stabilizing
    Like Sec.  816.114, this section's surface mining counterpart, we 
have removed and reserved previous Sec.  817.114 for the reasons 
discussed in the preamble to the

[[Page 93309]]

proposed rule. Specifically, previous Sec.  817.114 has been 
redesignated and moved to final rule Sec.  817.111.\802\
---------------------------------------------------------------------------

    \802\ 80 FR 44436, 44574 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 817.115: How long am I responsible for revegetation after 
planting?
    We are finalizing Sec.  817.115 as proposed. We received no 
comments on this section.
Section 817.116: What requirements apply to standards for determining 
revegetation success?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.116, which is the surface mining 
counterpart to Sec.  817.116.
Section 817.121: What measures must I take to prevent, control, or 
correct damage resulting from subsidence?
    Consistent with the discussion about our revisions to the 
definition of material damage (in the context of the subsidence control 
provisions of Sec. Sec.  784.30 and 817.121), our final paragraph (c) 
has been revised to specify that measures to prevent, control, or 
correct damage resulting from subsidence also applies to wetlands, 
streams and water bodies whenever the subsidence control standards are 
applicable to surface lands. These changes are consistent with our 
revised definition of material damage in the context of the subsidence 
provision of our regulations and the revisions to the subsidence 
control plan regulations at Sec.  784.30.
Final Paragraph (c): Repair of Damage to Surface Lands and Waters
    Final paragraph (c)(1) provides that to the extent technologically 
and economically feasible, the permittee must correct any subsidence-
related material damage to surface lands, wetlands, streams, or water 
bodies by restoring the land and water features to a condition capable 
of maintaining the value and reasonably foreseeable uses that the land 
was capable of supporting before the subsidence-related damage 
occurred. Final paragraph (c)(1) is substantively identical to the 
corresponding provisions in previous Sec.  817.121(c)(1). The primary 
revision is the addition of explicit references to surface water 
features, consistent with the preamble to the previous definition of 
``material damage'' in Sec.  701.5, which states that the definition'' 
covers damage to the surface and to surface features, such as wetlands, 
streams, and bodies of water, and to structures or facilities.'' \803\ 
As part of this final rule, we revised the definition of ``material 
damage'' to incorporate the preamble language.
---------------------------------------------------------------------------

    \803\ 62 FR 16724 (Mar. 31, 1995).
---------------------------------------------------------------------------

    Some commenters suggested that the regulations specify that the 
regulatory authority must consider the repair of the damage to be 
technologically and economically infeasible when a permittee has 
attempted to repair surface lands or waters for two years without 
achieving complete success. According to the commenters, the regulatory 
authority should then require the permittee to perform appropriate 
mitigation work. In response to these comments, we added Sec.  
817.121(g)(3)(ii), which requires that the regulatory authority 
initiate bond forfeiture proceedings if the permittee has not completed 
correction or repair of material damage to surface lands or waters or 
replaced adversely impacted protected water supplies within 2 years 
following the occurrence of that damage. Paragraph (g)(3)(ii) also 
requires that the regulatory authority use the funds collected to 
repair the surface lands and waters or replace the protected water 
supplies. In addition, we added Sec.  817.121(c)(2), which requires 
that the permittee implement fish and wildlife enhancement measures, as 
approved by the regulatory authority in a permit revision, to offset 
subsidence-related material damage to wetlands or a perennial or 
intermittent stream when correction of that damage is technologically 
and economically infeasible. Paragraph (c)(2) is analogous to the fish 
and wildlife enhancement requirements in Sec. Sec.  780.16(d)(3) and 
784.16(d)(3) that apply when mining activities conducted on the land 
surface result in the permanent loss of wetlands or a segment of a 
perennial or intermittent stream.
Previous Paragraph (c): Removal of Suspended Provisions
    We proposed to remove all of previous paragraph (c)(4), except 
previous paragraph (c)(4)(v) because those provisions were vacated by a 
court and have been suspended since December 22, 1999 (64 FR 71652-
71653). See also 80 FR 44528 (citing Nat'l Mining Ass'n v. Babbitt, 173 
F.3d 906 (D.C. Cir. 1999)). Several commenters requested that we 
instead revise those provisions in a manner consistent with the 
reasoning in the court's decision. We decline to make this revision at 
this time. Substantive changes of the type recommended by the 
commenters, especially ones related to evidentiary presumptions (see, 
e.g., Nat'l Mining Ass'n v. Babbitt, 173 F.3d at 912), are better 
addressed in future rulemaking subject to full notice and opportunity 
to comment.
Final Paragraph (d): Repair or Compensation for Damage to Non-
Commercial Buildings, Occupied Residential Dwellings, and Related 
Structures
    We also received comments that we should revise the proposed rule 
at paragraph (d) with regard to repair or compensation for damage to 
non-commercial buildings, dwellings, and related structures to ensure 
that the choice between repair and compensation rests with the person 
whose property has suffered damage, not the permittee causing the 
subsidence damage. We have not made any changes as a result of this 
comment because there appears to be a misunderstanding of the revisions 
we made in the proposed rule; our revisions were merely intended to 
adopt plain language principles by use of the word ``you'' instead of 
``permittee'', in doing so we did not revise the previous language or 
intent with regard to this issue.
Final Paragraph (g): Adjustment of Bond Amount for Subsidence Damage
    Final paragraph (g)(1) provides that, when subsidence-related 
material damage to land (including wetlands, streams, and water 
bodies), structures or facilities protected under paragraphs (c) 
through (e) occurs, or when contamination, diminution, or interruption 
to a water supply protected under Sec.  817.40 occurs, the regulatory 
authority must require the permittee to post additional performance 
bond until the repair, compensation, or replacement is completed. Apart 
from the clarification that the term ``land'' includes wetlands, 
streams, and water bodies, consistent with the preamble to the previous 
rule, this paragraph is substantively identical to the corresponding 
requirement in previous Sec.  817.121(c)(5).
    Final paragraph (g)(2) explains how the bond amount must be 
calculated. This paragraph is substantively identical to the 
corresponding provisions in previous Sec.  817.121(c)(5) with one 
exception. We added final paragraph (g)(2)(iii) to specify that, for 
material damage to lands and waters, the amount of the bond must equal 
the estimated cost of restoring the land and waters to a condition 
capable of maintaining the value and reasonably foreseeable uses that 
they were capable of supporting before the material damage occurred. 
The previous rule

[[Page 93310]]

required that the bond amount for damage to land equal repair costs, 
without elaborating on what ``repair'' means in the context of damage 
to land or waters.
    Final paragraph (g)(3)(i) provides that the bond requirements of 
paragraph (g)(1) do not apply if repair, compensation, or replacement 
is completed within 90 days of the occurrence of damage. Final 
paragraph (g)(3)(i) also establishes criteria for extension of the 90-
day period that are substantively identical to the corresponding 
provisions of the previous rule at Sec.  817.121(c)(5).
    Final paragraph (g)(3)(ii)(A) provides that, if the permittee has 
not completed correction or repair of material damage to surface lands 
or waters or replaced adversely impacted protected water supplies 
within two years following the occurrence of that damage, the 
regulatory authority must initiate bond forfeiture proceedings under 
Sec.  800.50 and use the funds collected to repair the surface lands 
and waters or replace the protected water supplies. We added paragraph 
(g)(3)(ii)(A) to the final rule to place a cap on the length of time 
that the bond may remain in place without any effort to correct the 
material damage or replace the adversely impacted water supply. Final 
paragraph (g)(3)(iii)(B) provides two exceptions to the requirement for 
initiation of bond forfeiture after two years. If either exception 
applies, the regulatory authority has the discretion to determine when 
the bond should be released. The first exception applies if the 
landowner refuses to allow access to implement the appropriate 
corrective actions. The second exception applies if the permittee 
demonstrates, and the regulatory authority finds, that correction or 
repair of the material damage to surface lands or waters is not 
technologically or economically feasible. When the latter exception 
applies, final paragraph (g)(3)(iii)(B)(2) provides that the permittee 
must complete the enhancement measures required under final paragraph 
(c)(2). Final paragraph (c)(2) requires that the permittee implement 
fish and wildlife enhancement measures, as approved by the regulatory 
authority in a permit revision, to offset material damage to a 
perennial or intermittent stream when correction of that damage is 
technologically and economically infeasible. We added final paragraph 
(c)(2) and the enhancement provision in final paragraph 
(g)(3)(iii)(B)(2) to discourage abuse of this exception.
Section 817.122: How and when must I provide notice of planned 
underground mining?
    We are finalizing Sec.  817.122 as proposed. We received no 
comments on this section.
Section 817.131: What actions must I take when I temporarily cease 
mining operations?
    We are finalizing Sec.  817.131 as proposed. We received no 
comments on this section.
Section 817.132: What actions must I take when I permanently cease 
mining operations?
    We are finalizing Sec.  817.132 as proposed. We received no 
comments on this section.
Section 817.133: What provisions concerning postmining land use apply 
to my operation?
    We are finalizing Sec.  817.133 as proposed. We received no 
comments on this section.
Section 817.150: What are the general requirements for haul and access 
roads?
    We have modified this section; however, these modifications are 
discussed in final rule Sec.  816.150, which is the surface mining 
counterpart to Sec.  817.150.
Section 817.151: What additional requirements apply to primary roads?
    We are finalizing Sec.  817.151 as proposed. We received no 
comments on this section.
Section 817.180: To what extent must I protect utility installations?
    We are finalizing Sec.  817.180 as proposed. We received no 
comments on this section.
Section 817.181: What requirements apply to support facilities?
    We are finalizing Sec.  817.181 as proposed. We received no 
comments on this section.
Previous Sec.  817.200: Interpretative Rules Related to General 
Performance Standards
    We have removed and reserved previous Sec.  817.200 for the reasons 
discussed in the preamble to the proposed rule.\804\
---------------------------------------------------------------------------

    \804\ 80 FR 44436, 44578 (Jul. 27, 2015).
---------------------------------------------------------------------------

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

Section 824.11: What special performance standards apply to mountaintop 
removal mining operations?
    As discussed in the preamble to final rule Sec.  785.14, explaining 
what special provisions apply to mountaintop removal mining operations, 
we revised Sec.  824.11 to include a new paragraph (b)(6) in response 
to a comment. The language adopted in this final rule therefore 
includes text requiring the prevention of ``damage to natural 
watercourses in accordance with the finding made by the regulatory 
authority under Sec.  785.14 of this chapter.''

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

Section 827.12: What performance standards apply to coal preparation 
plants?
    We are finalizing Sec.  827.12 as proposed. We received no comments 
on this section.

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

    The final rule that we are adopting today applies to all non-Indian 
lands in states with a federal regulatory program. States with federal 
regulatory programs include Arizona, California, Georgia, Idaho, 
Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South 
Dakota, Tennessee, and Washington. These programs are codified at 30 
CFR parts 903, 905, 910, 912, 921, 922, 933, 937, 939, 941, 942, and 
947, respectively. In general, there will be no need to amend the 
approved federal program because, with limited exceptions, each program 
cross-references 30 CFR parts 700, 701, 773, 774, 777, 779, 780, 783, 
784, 785, 800, 816, 817, 824, and 827.
    Tennessee is the only federal program state with active coal 
production and, thus, is the only state in which the rule would have 
immediate impact. Tennessee law already sharply restricts most 
significant mining activities in or near perennial and intermittent 
streams, which means that the provisions of proposed 30 CFR 780.28, 
784.28, 816.57, and 817.57 pertaining to mining in, through, or near a 
perennial or intermittent stream, are unlikely to have much effect on 
mining within that state. For example, section 69-3-108(f) of the

[[Page 93311]]

Tennessee Code Annotated, as amended by the Responsible Mining Act of 
2009, prohibits issuance of any permit for the removal of coal by 
surface mining methods or for surface access points to underground 
mining within 100 feet of the ordinary high water mark of a stream. It 
also prohibits issuance of a permit that would allow placement of 
overburden or waste from a surface mine within that buffer zone.
    The federal rule adopted today will have some impacts in Tennessee, 
For instance, unlike the final rule, the state law does not apply to 
stream crossings, to operations that improve the quality of stream 
segments previously disturbed by mining, or to coal mine waste from 
underground mines or coal preparation plants. Likewise, unlike the 
federal rule, the state law does not apply to coal transportation, 
storage, preparation and processing, loading, and shipping operations 
when necessary because of site-specific conditions, provided that those 
activities and operations do not cause the loss of stream function.
    The following parts of the final rule also would apply to Indian 
lands by virtue of cross-references in 30 CFR part 750:
     30 CFR 750.12(c)(1) includes the permitting provisions of 
parts 773, 774, 777, 779, 780, 783, 784, and 785 by cross-reference. 
There are no substantive revisions to the exceptions listed in 30 CFR 
750.12(c)(2).
     30 CFR 750.17 includes the bond and insurance provisions 
of subchapter J (part 800) by cross-reference.
     30 CFR 750.16 includes the performance standards of parts 
816, 817, 824, and 827 by cross-reference.
    The revisions to parts 700 and 701 also would apply to Indian lands 
by virtue of 30 CFR 700.1(a), which prescribes that subchapter A of 30 
CFR chapter VII contains ``regulatory requirements and definitions 
generally applicable to the programs and persons covered by the Act.'' 
After a tribe receives approval of a tribal regulatory program under 
section 710(j) of SMCRA,\805\ we will treat tribe as a state for 
regulatory program purposes. Once that occurs, Part VIII of this 
preamble (state regulatory programs) will apply in place of Part VII of 
this preamble for any Indian lands with an approved tribal regulatory 
program.
---------------------------------------------------------------------------

    \805\ 30 U.S.C. 1300(j).
---------------------------------------------------------------------------

VIII. How would this rule affect state regulatory programs?

    Adoption of this final rule will not have any immediate effect on 
approved state regulatory programs. Each state with primacy will need 
to propose and adopt counterpart revisions to its regulations and other 
state program provisions and submit them for review by OSMRE and the 
public as a program amendment under 30 CFR 732.17. Under 30 CFR 
732.17(g)(9), no change to state law or regulations making up the 
approved program may take effect for purposes of a state program until 
that change is approved by OSMRE as a program amendment.
    We will evaluate each state regulatory program approved under 30 
CFR part 732 and section 503 of the Act \806\ to determine whether any 
changes in the state program are necessary to maintain consistency with 
federal requirements. If we determine that a state program provision 
needs to be amended as a result of revisions to the corresponding 
federal rule, we will notify the state in accordance with 30 CFR 
732.17(d).
---------------------------------------------------------------------------

    \806\ 30 U.S.C. 1253.
---------------------------------------------------------------------------

    Section 505(a) of the Act \807\ and 30 CFR 730.11(a) provide that 
SMCRA and federal regulations adopted under SMCRA do not supersede any 
state law or regulation unless that law or regulation is inconsistent 
with the Act or the federal regulations adopted under the Act. Section 
505(b) of the Act \808\ and 30 CFR 730.11(b) provide that we may not 
construe existing state laws and regulations, or state laws and 
regulations adopted in the future, as inconsistent with SMCRA or the 
federal regulations if these state laws and regulations either provide 
for more stringent land use and environmental controls and regulations 
or have no counterpart in the Act or the federal regulations.
---------------------------------------------------------------------------

    \807\ 30 U.S.C. 1255(a).
    \808\ 30 U.S.C. 1255(b).
---------------------------------------------------------------------------

    Under 30 CFR 732.15(a), each state regulatory program must provide 
for the state to carry out the provisions and meet the purposes of the 
Act and its implementing regulations. In addition, that rule requires 
that state laws and regulations be in accordance with the provisions of 
the Act and consistent with the federal regulations. As defined in 30 
CFR 730.5, ``consistent with'' and ``in accordance with'' mean that the 
state laws and regulations are no less stringent than, meet the minimum 
requirements of, and include all applicable provisions of the Act. The 
definition also provides that these terms mean that the state laws and 
regulations are no less effective than the federal regulations in 
meeting the requirements of the Act. Under 30 CFR 732.17(e)(1), we may 
require a state program amendment if, as a result of changes in SMCRA 
or the federal regulations, the approved state regulatory program no 
longer meets the requirements of SMCRA or the federal regulations.

IX. Procedural Matters and Required Determinations

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

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. This final 
rule is considered a ``significant regulatory action'' under Executive 
Order 12866 because it may raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order and therefore is subject to review by 
the Office of Management and Budget (OMB).
    OMB has also found that this rule is not likely to have an annual 
effect of $100 million or more on the economy. We prepared a final 
environmental impact statement and regulatory impact analysis, which 
analyzed, among other things, the costs and benefits of the rule, 
including costs and benefits associated with environmental impacts, 
human health impacts, energy market effects, compliance costs, 
regulatory costs, coal market welfare, economic activity, coal prices, 
electricity production, employment, and severance taxes.\809\ As 
further discussed in those documents, the rule 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.
---------------------------------------------------------------------------

    \809\ For a brief summary of the costs and benefits associated 
with these categories, see RIA at ES-1-ES-4.
---------------------------------------------------------------------------

    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the Nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The Executive Order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
final rule in a manner consistent with these requirements.
    We have prepared a final RIA and submitted it to OMB. Based upon 
the final RIA, we do not project that the final rule will prohibit 
mining in excess

[[Page 93312]]

of baseline conditions of any particular coal reserves. Therefore, our 
estimates do not include direct and indirect costs associated with 
stranded coal reserves.

B. Regulatory Flexibility Act (RFA)

    The final Regulatory Flexibility Analysis, which appears in 
Appendix A of our final RIA, considers the extent to which the economic 
impacts resulting from this final rule could be borne by small 
businesses. Because of the complexity of corporate structures in the 
coal mining industry, it is difficult to calculate the exact number of 
small entities that could be affected by this rule. The coal mining 
industry is continually changing and it is common for large mining 
operators to merge with smaller operators, creating complicated 
business relationships between parent corporations and subsidiaries. 
For this analysis, we use information from the Mine Safety and Health 
Administration about mine controllers because information on parent 
companies is not readily available. We then used two methods for 
identifying small controllers:
    Using the Small Business Administration (SBA) definition of small 
mines,\810\ we estimate that there were 97 small underground coal 
mining entities, 199 small surface coal mining entities, and 43 small 
anthracite coal mining entities producing coal in 2015. This is a total 
of 339 small entities in the industry, representing approximately 98 
percent of all entities. Using the Mine Safety and Health 
Administration definition of ``small mines'' (mines reporting less than 
20 employees), we estimate that there were 167 small mines producing 
coal in 2015. Using either definition of small entities, nearly 90 
percent of mines operated by small entities were in the Appalachian 
Basin. All of these entities are expected to be affected by this final 
rule.
---------------------------------------------------------------------------

    \810\ The Regulatory Flexibility Analysis has been revised to 
reflect the recent changes to the Small Business size thresholds 
identified by the Small Business Administration for coal mining 
companies. The Small Business Administration thresholds for coal 
mining entities are as follows: Bituminous coal underground mining, 
1,500 employees or less; bituminous coal and lignite surface mining, 
1,250 employees or less; anthracite mining, 250 employees or less.
---------------------------------------------------------------------------

    In particular, we estimate that compliance costs for surface mines 
with fewer than 20 employees will total between 0.1 and 3.1 percent of 
annual revenues, depending on mining region. For surface mines 
reporting 1,250 or fewer employees, we estimate that compliance costs 
will total between 0.1 and 3.1 percent of revenues, depending on mining 
region. For underground mines reporting 1,500 or fewer employees, we 
estimate compliance costs will total between zero and 0.1 percent of 
revenues, depending on mining region. The annual cost of the final rule 
as a share of annual revenue for a mine operated by a small entity is 
1.2 percent.
    The largest affected group of small coal mining entities is small 
surface mines in Appalachia (311 mines). We anticipate that this final 
rule will increase costs to small mines in Appalachia with fewer than 
20 employees by approximately 1.1 percent of annual revenues for 
surface mines and 0.1 percent of annual revenues for underground mines. 
Average compliance costs for small surface mines in Appalachia with 
1,250 or fewer employees are estimated to be 1.1 percent of annual 
revenues. Average compliance costs for small underground mines in 
Appalachia with 1,500 or fewer employees are estimated to be 0.1 
percent of annual revenues.
    The estimated impacts of the stream protection rule on small 
business revenues have changed in the final RIA as compared to the 
draft RIA for several reasons. First, the estimated costs of the rule 
have been revised in the final RIA to reflect public comments as well 
as rule changes. Second, the SBA's small business thresholds for 
businesses in the coal industry have been revised since development of 
the draft RIA. Specifically, the SBA thresholds for surface and 
underground mining were 500 employees in the draft RIA, but the SBA now 
splits the industry into three parts with separate thresholds: 
Bituminous coal and lignite surface mining has a threshold of 1,250 
employees, bituminous coal underground mining has a threshold of 1,500 
employees, and anthracite mining has a threshold of 250 employees. 
While increasing the thresholds for these businesses results in more 
businesses being included as small entities, the impacts per business 
are smaller as a result. Third, as a consequence of changes we made in 
response to public comments, we revisited the distribution of 
administrative costs among entities. In the draft RIA, we assumed that 
administrative costs were evenly distributed across mining businesses, 
regardless of size. This resulted in the appearance of larger revenue 
impacts to smaller businesses associated with these costs. However, 
after reconsidering the various administrative cost components, we 
concluded that assuming a linear relationship between administrative 
costs and tons of coal produced is likely to more accurately estimate 
the administrative burden of the final rule. In section A.4 of the 
final RIA, the analysis recognizes that some administrative costs, such 
as increased monitoring requirements, may vary depending on the 
physical size of the mine. To the extent that small mines are 
physically smaller, they may need to collect fewer samples than assumed 
in the standard mine used to estimate costs. Additionally, in general, 
there are likely to be fewer permits required of smaller operations. 
Thus, the final RIA estimates revenue impacts per business by assuming 
a linear relationship exists between administrative costs and the tons 
of coal produced by an entity. The final RIA also recognizes that small 
coal producers may be disproportionately impacted by the final rule 
because they may be more likely to lease the land that they mine, 
operate with smaller budgets, and struggle to pay the minimum royalty 
payments, thus facing a greater risk of shutting down as coal 
production costs increase. Further, the final RIA recognizes that to 
the extent that administrative costs are independent of the scale of 
the affected operations, revenue impacts could be larger for small 
entities than are presented in this analysis. This aspect of the 
analysis is caveated in Exhibits A-9 through A-14 of the final RIA.
Description of Measures To Minimize Economic Impacts on Small Entities
    Section 507(c) of SMCRA \811\ establishes the small operator 
assistance program (SOAP). To the extent that funds are appropriated 
for that program, this provision of SMCRA authorizes us to provide 
small operators with training and financial assistance in preparing 
certain elements of permit applications. An operator is eligible to 
receive training and assistance if his or her probable total annual 
production at all locations will not exceed 300,000 tons.
---------------------------------------------------------------------------

    \811\ 30 U.S.C. 1257(c).
---------------------------------------------------------------------------

    Under section 507(c)(1) of SMCRA \812\ and 30 CFR 795.9, the 
following permit application activities are eligible for financial 
assistance under SOAP:
---------------------------------------------------------------------------

    \812\ 30 U.S.C. 1257(c)(1).
---------------------------------------------------------------------------

     Preparation of the determination of the probable 
hydrologic consequences of mining, including collection and analysis of 
baseline data and any engineering analyses and designs needed for the 
determination.
     Collection and analysis of geological data.
     Development of cross-sections, maps, and plans.
     Collection of information on archaeological and historical 
resources and preparation of any related plans.
     Development of preblast surveys.

[[Page 93313]]

     Collection of site-specific information on fish and 
wildlife resources and preparation of fish and wildlife protection and 
enhancement plans.
    These activities include many of the new permit application 
requirements in this final rule; e.g., the expanded baseline data 
requirements concerning hydrology, geology, and the biological 
condition of streams and the expanded requirements for site-specific 
fish and wildlife protection and enhancement plans. In addition, 
section 507(c)(2) of SMCRA \813\ provides that, as part of SOAP, we 
must either provide training or assume the cost of training eligible 
small operators on the preparation of permit applications and 
compliance with the regulatory program. Although SOAP funding is 
available for activities associated with new permit application 
requirements and training, SMCRA does not authorize SOAP funding for 
compliance costs associated with the expanded requirements for 
monitoring groundwater, surface water, and the biological condition of 
streams.
---------------------------------------------------------------------------

    \813\ 30 U.S.C. 1257(c)(2).
---------------------------------------------------------------------------

    SOAP funding is subject to annual appropriation from the federal 
expense portion of the Abandoned Mine Reclamation Fund established 
under section 401(a) of SMCRA.\814\ Section 401(c)(9) of SMCRA \815\ 
caps SOAP funding at $10 million per year. Subject to appropriations 
from Congress, we intend to provide financial assistance to small 
operators to develop permit applications up to the $10 million cap. We 
also intend to provide training to assist small operators in meeting 
the additional requirements of this final rule. SOAP assistance should 
substantially reduce compliance costs for small operators by offsetting 
the cost of most of the new permit application requirements.
---------------------------------------------------------------------------

    \814\ 30 U.S.C. 1231(a).
    \815\ 30 U.S.C. 1231(c)(9).
---------------------------------------------------------------------------

C. Small Business Regulatory Enforcement Fairness Act

    The Regulatory Flexibility Act as amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA) generally requires an 
agency to prepare a regulatory flexibility analysis of any rule subject 
to notice and comment rulemaking requirements under the Administrative 
Procedure Act, unless the head of the agency certifies that the rule 
would not have a significant economic impact on a substantial number of 
small entities.\816\ These statutes are designed to ensure that 
government regulations do not unnecessarily or disproportionately 
burden small entities. Small entities include small businesses, small 
governmental jurisdictions, and small not-for-profit enterprises. As 
discussed in Part IX.B., OSMRE reviewed the Small Business 
Administration (SBA) and Mine Safety and Health Administration size 
standards for small mines. OSMRE concludes that the vast majority of 
entities operating in the relevant sectors are small businesses as 
defined by the SBA.\817\ As such, the rule will likely affect a 
substantial number of small entities. OSMRE finds, however, that the 
final rule will not have a significant economic impact on a substantial 
number of small entities. As explained more in the Final Regulatory 
Flexibility Analysis in the RIA, the annual cost of the final rule as a 
share of annual revenue for mines operated by a small entity is 1.2 
percent.\818\ This small change is not large enough to be considered 
significant.
---------------------------------------------------------------------------

    \816\ 5 U.S.C. 601. The exception is found in 5 U.S.C. 605(b).
    \817\ RIA, at Appendix A, p. A-15-A-16.
    \818\ RIA, at Appendix A, p. A-27.
---------------------------------------------------------------------------

    Although it is not required, OSMRE nevertheless chose to prepare an 
Initial Regulatory Flexibility Analysis and Final Regulatory 
Flexibility Analysis for this rule. Even though this rule is not 
economically significant, OSMRE believes it is prudent, and potentially 
helpful to small entities, to provide an IRFA and FRFA for the 
rulemaking. This decision should not be viewed as a precedent for other 
rulemakings.

D. Unfunded Mandates Reform Act

    As discussed in response to comments on the final RIA, Appendix I, 
this final rule will not impose an unfunded mandate on state, local, or 
tribal governments or the private sector of $100 million or more per 
year. As discussed in Chapter 9 of the final RIA, the total aggregate 
annual compliance and related costs for this rule are on the order of 
$81 million (when calculated at a seven percent real rate of discount), 
which includes the costs that state regulatory agencies are expected to 
bear.\819\ More specifically, the increased compliance and related 
costs for regulatory authorities as a result of this rule is only 
expected to be approximately $0.72 million.\820\ In addition, this 
final rule will not have a significant or unique effect on state, 
tribal, or local governments or the private sector. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act, 2 U.S.C. 1534, is not required.
---------------------------------------------------------------------------

    \819\ RIA, at 9-2.
    \820\ RIA, at ES-31-ES-32.
---------------------------------------------------------------------------

E. Executive Order 12630--Takings

    Under the criteria in Executive Order 12630, we have made a 
determination that this final rule does not have specific, identifiable 
takings implications. First, based upon the final RIA, we do not 
project that this final rule will prohibit mining in excess of baseline 
conditions of any particular coal reserves. In Chapter 5 of the final 
RIA we analyze the potential for coal reserves to be ``stranded'' or 
``sterilized.'' We define stranded reserves as those that are 
technically and economically minable, but unavailable for production 
given the new requirements and restrictions included in the final rule. 
Our analysis indicates that there will be no increase in stranded 
reserves, that is, the engineering analyses determined that the same 
volume of coal could be mined under the final rule as under the 
baseline. Second, the question of whether this final rule might affect 
a compensable taking of a particular property interest necessarily 
involves ad hoc factual inquiries, including the economic impact of the 
final rule on a particular claimant; the extent to which this final 
rule might interfere with a claimant's reasonable, investment-backed 
expectations; and the character of the government action. None of these 
factual inquiries is possible for a national rule of this scope, which 
does not specifically bar the mining of any particular coal reserves. 
However, based upon the final RIA, we have no basis to believe that 
implementation of this final rule will result in compensable takings of 
any specific property interests.

F. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires that we develop a process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' Policies that 
have federalism implications are defined in the Executive Order to 
include regulations that have ``substantial direct effects on the 
States [in terms of compliance costs], on the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' In addition, 
policies have federalism implications if they preempt State law. In 
terms of compliance costs, the Federal government must provide the 
necessary funds to pay the direct costs

[[Page 93314]]

incurred by State and local governments in complying with the 
regulation if the rule:
    1. Results in direct expenditures to state and local governments in 
aggregate of $25 million in any one year; or
    2. Results in expenditures to state and local governments greater 
than one percent of their annual revenues in any one year.
    As explained in Chapter 4.4 of the final RIA, and in our Paperwork 
Reduction Act analysis in section J of the Procedural Matters and 
Required Determinations of this preamble, we do not anticipate that 
this rule will result in greater compliance costs for the States above 
thresholds listed above. As discussed in Part IV.C. of this preamble, 
we also do not expect this rule to impact the relationship between the 
Federal government and the States or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in the Order.

G. Executive Order 12988--Civil Justice Reform

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'' (February 
11, 1994), requires federal agencies to identify disproportionately 
large and adverse human health or environmental effects of their 
programs, policies, and activities on minority and low-income 
populations. Among other actions, agencies are directed to improve 
research and data collection regarding health and environmental effects 
in minority and low-income communities. We provide this analysis in the 
final EIS for the final rule in the Environmental Justice discussion at 
section 4.4.

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

    Where coal extraction occurs on Indian lands, we are the SMRCA 
regulatory authority. Therefore, the final rule has the potential to 
affect Indian tribes. Consistent with Executive Order 13175, the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951), the 
Department of the Interior Policy on Consultation with Indian Tribes 
(Dec. 1, 2011), and 512 Departmental Manual 2, we evaluated possible 
effects of the rule on federally recognized Indian tribes and engaged 
in government-to-government consultations. On May 12, 2010, our 
Director met with the Chairmen of the Hopi and Crow Tribes and the 
President of the Navajo Nation to initiate consultation on the stream 
protection rulemaking and development of the DEIS. The Tribes in 
attendance requested that they be kept informed of the rulemaking 
process and EIS development.
    Our Director again met with tribal leaders in Washington, DC on 
December 1, 2011. At that time, we provided additional information on 
the elements under consideration for the alternatives in the DEIS and 
discussed the expected impacts to the SMCRA regulatory program for 
Indian lands. From 2010-2016, the status of the stream protection rule 
was often included during our quarterly government-to-government 
meetings with the Crow Tribe, the Hopi Tribe, and the Navajo Nation. 
Our Western Regional Office conducts these quarterly consultation 
meetings with the Tribes to discuss topics of interest such as our 
rulemakings activities, coal mining operations on Tribal lands, and 
development of Tribal primacy.
    On August 28, 2015, our Director sent letters to the Hopi and Crow 
Tribes and the Navajo Nation notifying them of the publication of our 
proposed stream protection rule, DEIS, and DRIA. The letters again 
included an offer to meet with the Tribes and further discuss the 
proposed rule and DEIS. On November 6, 2015, we requested government-
to-government consultation with the Hopi Tribe, Crow Tribe, and Navajo 
Nation.
    At the request of the Navajo Nation, OSMRE Director Joseph 
Pizarchik conducted government-to-government consultation with Navajo 
Nation Tribal leaders in Window Rock, Arizona on January 13, 2016. 
During the meeting the Navajo Tribal leaders were briefed on the 
proposed stream protection rule. On May 4, 2016, we offered to continue 
government-to-government consultation on an ongoing basis at the 
request of the Navajo Nation. A consultation meeting also occurred with 
the Navajo Nation on June 15, 2016, during which the Navajo Nation 
indicated its support for the letter sent by the western states and 
that it had no further comments on the proposed stream protection rule. 
We also consulted with the Hopi Tribe on June 28, 2016, at which time 
the Tribal representative indicated that the Hopi Tribe had no further 
comments on the proposed stream protection rule.
    The Crow Tribe did not request additional consultation in response 
to our offer on November 6, 2015, or during subsequent government-to-
government quarterly meetings held with the Tribe on January 13, 2016 
and May 24, 2016, when the stream protection rule was discussed. On 
September 28, 2016, during an Executive Order 12866 meeting on the 
stream protection rule, a Crow tribal representative indicated that the 
Tribe wanted additional consultation on the stream protection rule. As 
a follow-up, we sent a letter to the Crow Tribe on September 29, 2016, 
explaining that we were in the late stages of rulemaking but offering 
to meet with the Tribe at the earliest opportunity. Having not received 
a response in over 30 days, we proceeded to finalize the rule and its 
supporting documents.
    On November 15, 2016, the day the final environmental impact 
statement was released to the public, we received a letter from the 
Crow Tribe asking for consultation starting in January 2017. On 
November 17, 2016, the Chairman of the Crow Tribe requested a meeting 
with the Assistant Secretary for Land and Minerals Management to 
discuss the rule and consultation with the Crow Tribe. This meeting 
took place the following day on November 18, 2016, which was also 
attended by the Director and Deputy Director of OSMRE. The tribe did 
not raise any new issues at the meeting that had not already been 
considered. Additionally, we informed the Tribe that we did consider 
the comments of the Montana Department of Environmental Quality, Cloud 
Peak Energy, and Westmoreland Coal Company, which the Tribe indicated 
that they concurred with and adopted pending further review. We also 
committed to the Chairman that we would continue to work with and meet 
with the Tribe during implementation of the rule.
    In addition, we sent letters to the Southern Ute Indian Tribe, Ute 
Mountain Ute Tribe, and Northern Cheyenne Tribe on March 7, 2016 
requesting government-to-government consultation on the stream 
protection rule. The three Tribes did not respond to these requests.
    We are committed to continuing working and meeting with the Tribes 
during implementation of the rule.

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

    This final rule is not a significant energy action under Executive 
Order 13211. As discussed below and in the final RIA, the revisions 
contained in this final rule will not have a significant effect on the 
supply, distribution, or use of energy.
    The Office of Management and Budget has identified nine outcomes 
that may constitute ``a significant adverse

[[Page 93315]]

effect.'' \821\ The three outcomes that are relevant to this final rule 
are: (1) A reduction in coal production in excess of five million tons 
per year, (2) a reduction in electricity production in excess of one 
billion kilowatt-hours per year or in excess of 500 megawatts (MW) of 
installed capacity,\822\ and (3) an increase in the cost of energy 
production in excess of one percent. This final rule may affect the 
cost of coal production, the amount of electricity produced, and the 
cost of energy production, but as explained below, the increases are 
anticipated to be less than what would constitute ``a significant 
adverse effect.''
---------------------------------------------------------------------------

    \821\ OMB 2001. Memorandum for Heads of Executive Department 
Agencies, and Independent Regulatory Agencies, Guidance For 
Implementing E.O. 13211, M-01-27. http://www.whitehouse.gov/omb/memoranda/m01-27.html (last accessed Nov. 1, 2016).
    \822\ Installed capacity is the ``total manufacturer-rated 
capacity for equipment such as turbines, generators, condensers, 
transformers, and other system components'' and represents the 
maximum flow of energy from the plant or the maximum output of the 
plant. Final Regulatory Impact Analysis--Chapter 9, page 3.
---------------------------------------------------------------------------

    In the final RIA, we analyzed the effects of the final rule on coal 
production and electricity production. Regarding coal production, this 
final rule is not expected to result in a reduction in national coal 
production in excess of five million tons per year. The greatest 
single-year reduction in domestic coal production is expected to occur 
in 2021, reaching 2.3 million tons. The change in production from 
baseline conditions over the period of this analysis is on average 0.7 
million tons, significantly smaller than the 5 million tons that is 
considered a significant adverse effect.
    This final rule may also affect levels of domestic electricity 
production by influencing the costs of production. By increasing the 
costs of coal production, the final rule may lead to subsequent 
increases in the price of coal paid by power plants. Because coal makes 
up a significant part of the domestic energy mix, a change in the price 
of coal is expected to be reflected in domestic electricity prices, 
reducing market demand for electricity. The final RIA uses the Energy 
Ventures Associates coal market model to predict the changes in 
electricity supply and demand resulting from the final rule. 
Electricity is an essential service in the United States industrial, 
commercial, and residential sectors. Typically a supply reduction of an 
essential good or service is followed by an immediate price spike. The 
extent and duration of the price spike depends on the economic 
viability of alternative inputs to substitute for the initial supply 
reduction over a period of time as alternative investments are made. In 
the case of the United States power generating sector and the 
increasingly diverse array of energy inputs, higher cost of one form of 
electricity generation, such as coal, will result in an increase in use 
of an alternative form of electricity generation, such as natural gas. 
Due to the substitution of alternative forms of generation for coal, in 
the long-term there is a negligible effect on the supply and demand for 
electricity as a result of the final rule.
    There is some long-term cost involved in moving from one fuel 
source to another due to additional capital expenditures. This cost is 
ultimately reflected in the price of electricity. Thereby, the final 
rule will result in a slightly elevated electricity price that will 
translate to an expected decrease in electricity consumption by 78 
million kilowatt hours. In the United States, reduced electricity 
consumption has typically been achieved by adoption of more energy 
efficient practices such as purchases of energy efficient appliances by 
households.
    This final rule will introduce a number of new requirements that 
may increase the overall costs of energy produced by coal. Compliance 
costs are estimated to make up less than one percent of total coal 
production costs, nationally, in every year within the study period. On 
average, compliance costs are expected to account for 0.18 percent of 
total coal production costs, nationally. The final rule may result in 
an increase in the price of coal, which may increase the costs of 
electricity production nationwide. We do not expect that this final 
rule will result in an increase in electricity production costs 
exceeding one percent over the 21-year study period. Instead, as 
explained in the final RIA, on average, this final rule is expected to 
increase electricity costs nationwide by less than .01 percent.

J. Paperwork Reduction Act

    Under 5 CFR part 1320, the rules implementing the information 
collection aspects of the Paperwork Reduction Act, a federal agency 
must estimate the burden imposed on the public by any proposed 
collection of information. This burden consists of ``the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency.''
    We estimated the aggregate burden (in hours) for information 
collection under the final rule by calculating the number of hours that 
industry and state governments would need to comply with each element 
of the rule.
    In addition, we estimated the total annual non-hour cost burden to 
respondents. These non-wage costs include items such as equipment 
required for monitoring, sampling, drilling and testing, operation and 
maintenance, and purchase of services.
    We calculated the total estimated burden for two respondent groups, 
mine operators and state regulatory authorities, on an annual basis 
averaged over a 3-year period.
    We sought comments from the public on the information collection 
activities for our regulations that would be revised by the proposed 
stream protection rule. Although no comments were submitted to the 
information collection clearance officer during the public comment 
period a number of comments were submitted regarding burden (hours and 
non-wage costs) which we considered in preparing this final rule and 
associated information collection clearance packages.
Summary of Burden (Costs) Calculated by Part for the Stream Protection 
Rule
    This final rule contains collections of information that we have 
submitted to the Office of Management and Budget (OMB) for review and 
were approved in accordance with the Paperwork Reduction Act, 44 U.S.C. 
3501, et seq. These collections are contained in 30 CFR parts 779, 780, 
783, 784, 785, 800, 816, and 817. We also estimated programmatic 
changes where burden is being moved between parts.
    Title: 30 CFR parts 779 and 783--Surface and Underground Mining 
Permit Applications--Minimum Requirements for Information on 
Environmental Resources and Conditions.
    OMB Control Number: 1029-0035.
    Summary: Applications for surface and underground coal mining 
permits are required to provide adequate descriptions of the 
environmental resources that may be affected by proposed surface mining 
activities. Without this information, OSMRE and state regulatory 
authorities could not approve permit applications for surface coal 
mines and related facilities.
    Title: 30 CFR part 780--Surface Mining Permit Applications--Minimum 
Requirements for Operation and Reclamation Plans.
    OMB Control Number: 1029-0036.
    Summary: Sections 507 and 508 of the Act contain permit application 
requirements for surface coal mining activities, including a 
requirement that the application include an operation

[[Page 93316]]

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, OSMRE and state 
regulatory authorities could not approve permit applications for 
surface coal mines and related facilities.
    Title: 30 CFR part 784--Underground Mining Permit Applications--
Minimum Requirements for Operation and Reclamation Plans.
    OMB Control Number: 1029-0039.
    Summary: Sections 507(b), 508(a), and 516(b) and (d) of SMCRA 
require applicants for permits for underground coal mines to prepare 
and submit operation and reclamation plans for coal mining activities 
as part of the application. Regulatory authorities use this information 
to determine whether the plans will achieve the reclamation and 
environmental protection requirements of the Act and regulatory 
program. Without this information, OSMRE and state regulatory 
authorities could not approve permit applications for underground coal 
mines and related facilities.
    Title: 30 CFR part 785--Requirements for Permits for Special 
Categories of Mining.
    OMB Control Number: 1029-0040.
    Summary: Sections 507, 508, 510, 515, 701, and 711 of SMCRA require 
applicants for special categories of mining activities to provide 
descriptions, maps, plans, and data relating to the proposed activity. 
Without this information, OSMRE and state regulatory authorities could 
not approve permit applications for special categories of mining 
activities.
    Title: 30 CFR part 800--Performance Bond, Financial Assurance, and 
Insurance Requirements for Surface Coal Mining and Reclamation 
Operations.
    OMB Control Number: 1029-0043.
    Summary: OSMRE and state regulatory authorities use the information 
collected under 30 CFR part 800 to ensure that persons conducting or 
planning to conduct surface coal mining and reclamation operations post 
and maintain a performance bond or financial assurance in a form and 
amount adequate to guarantee fulfillment of all reclamation 
obligations.
    Title: 30 CFR parts 816 and 817--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 regulatory authority uses the information collected 
to assist in evaluating compliance with this requirement.
    The table below summarizes estimated information collection burdens 
for our regulations as revised by this final rule. We calculated the 
total estimated burden for two respondent groups, mine operators and 
state regulatory authorities, on an annual basis averaged over a 3-year 
period. The table does not include operational or other costs that do 
not involve a collection of information. For ease of understanding, the 
following table depicts burden increases as a result of the rule and 
total burden by 30 CFR part after implementation of the rule, but not 
programmatic changes where burden is moved between 30 CFR parts or 
between sections, which is less meaningful to respondents.
---------------------------------------------------------------------------

    \823\ State Regulatory Agency (SRA).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                   Total estimated                      Total Estimated
                                                                   Estimated        Estimated       burden hours        Estimated       burden non-wage
             30 CFR part                  Type of respondent         annual        burden hour       (all burden    operator non-wage   costs (all non-
                                                                   responses      changes due to  hours  by 30 CFR   cost changes due   wage costs by 30
                                                                                       SPR              part)             to SPR           CFR part)
--------------------------------------------------------------------------------------------------------------------------------------------------------
779 and 783..........................  Operators..............            1,181            6,853           141,844            $41,590            $41,590
                                       SRA \823\..............            1,166            1,888             8,718                  0                  0
780..................................  Operators..............            2,604          19,5340            58,559          6,444,960          7,474,551
                                       SRA....................            2,582            9,135            25,764                  0                  0
784..................................  Operators..............              776            7,562            18,500          4,655,868          5,081,139
                                       SRA....................              798            2,757             6,533                  0                  0
785..................................  Operators..............              187              400            12,240                  0                  0
                                       SRA....................              187               80             5,720                  0                  0
800..................................  Operators..............            5,398           28,852            74,751              6,000          1,223,971
                                       SRA....................           13,859            4,818           104,473             10,817            291,158
816 and 817..........................  Operators..............          469,455          136,578         1,742,515         10,513,667         33,364,075
                                       SRA....................              169                0             4,424                  0                  0
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
    Subtotals........................  Operators..............          479,601          199,779         2,048,409         21,662,085         47,185,326
                                       SRA....................           18,761           18,678           155,632            $10,817           $291,158
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
        Grand totals.................  .......................          498,362          218,457         2,204,041         21,672,902         47,476,484
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Under the Paperwork Reduction Act, we must obtain OMB approval of 
all information and recordkeeping requirements. In accordance with 44 
U.S.C. 3507(d), we submitted the information collection and 
recordkeeping requirements of 30 CFR parts 779, 780, 783, 784, 785, 
800, 816, and 817 to OMB for review, and OMB approved them.
    No person is required to respond to an information collection 
request unless the forms and regulations requesting the information 
have currently valid OMB control numbers. These control numbers appear 
in Sec. Sec.  779.10, 780.10, 783.10, 784.10, 785.10, 800.10, 816.10, 
and 817.10.
    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 203 SIB, Washington, DC 20240.

[[Page 93317]]

K. National Environmental Policy Act

    The revisions to our regulations constitute a major Federal action 
affecting the quality of the natural and human environment under the 
National Environmental Policy Act of 1969 (NEPA). Therefore, we 
prepared a final Environmental Impact Statement (FEIS) pursuant to 
section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C), the Council on 
Environmental Quality's (CEQ) implementing regulations (40 CFR part 
1500 through 1508), and the Department's implementing regulations (43 
CFR part 46). The FEIS, which is entitled ``Stream Protection Rule; 
Final Environmental Impact Statement,'' is available on the Internet at 
www.regulations.gov. The Docket ID number is OSM-2010-0021. 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, and various other 
OSMRE offices, and it is available on our Web site at: www.osmre.gov.
    We, along with the U.S. Environmental Protection Agency, published 
notices of availability of the FEIS on November 16, 2016, 81 FR 80592 
and 81 FR 80664, respectively. In accordance with 40 CFR 1506.10(b)(2), 
a final decision on the proposed action was not made until at least 
thirty days after publication of the U.S. Environmental Protection 
Agency's notice.
    The purpose of the proposed action is to update and revise our 
regulations to provide a better balance between the Nation's need for 
coal as an essential energy source with the need to prevent or mitigate 
adverse environmental effects of present and future surface coal mining 
operations. The proposed action will apply to both surface mines and 
underground mines and will protect, minimize, and mitigate adverse 
impacts on surface water, groundwater, and site productivity, with 
particular emphasis on protecting or restoring streams, aquatic 
ecosystems, riparian habitats and corridors, native vegetation, and the 
ability of mined land to support the uses that it was capable of 
supporting before mining.
    Despite the enactment of SMCRA and the promulgation of federal 
regulations implementing the statute, scientific studies published 
since the adoption of our previous regulations indicate that surface 
coal mining operations continue to have significant negative impacts on 
streams, fish, and wildlife, which has created a need for us to update 
and revise the regulations to reflect the best available science in 
order to avoid or minimize these negative impacts, and provide 
regulatory certainty to industry. Further evidence is available through 
several decades of our observing the impacts of coal mining operations. 
In addition since our earlier rulemakings, there have been significant 
improvements in technologies and methods for prediction, prevention, 
mitigation, and reclamation of coal mining impacts on hydrology, 
streams, fish, wildlife, and related resources. (See Section II in this 
preamble and Chapter 1 in the FEIS).
    Additional information about the alternatives considered and the 
Preferred Alternative selected may be reviewed in the FEIS. The 
evaluation of alternatives, including the No Action Alternative, and 
decision to implement the Preferred Alternative is documented in the 
Record of Decision, which is available on the Internet at 
www.regulations.gov. The Docket ID number is OSM-2010-0021. A copy of 
the Record of Decision 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, 
and it is available on our Web site at: www.osmre.gov.

L. Consultation Under the Endangered Species Act of 1973

    We completed formal Section 7 consultations with the U.S. Fish and 
Wildlife Service on the continuation of existing permits and the 
approval and conduct of future surface coal mining and reclamation 
operations under both state and federal regulatory programs adopted 
pursuant to SMCRA, as modified by the final rule. OSMRE and the U.S. 
Fish and Wildlife Service agree that, due to the broad scope of this 
rulemaking and consultation, and because the action under consultation 
sufficiently modifies the OSMRE's regulations consulted on under the 
1996 Biological Opinion, that this section 7 consultation supersedes 
the 1996 Biological Opinion for all future permitting actions. While 
the incidental take statement accompanying the 1996 Biological Opinion 
will remain valid for all existing surface coal mining and reclamation 
permits that complied with the terms and conditions of the 1996 
Biological Opinion to obtain incidental take coverage prior to the 
effective date of the stream protection rule, any new permits, or 
revisions to previously approved permits where a revision would change 
the manner or extent of effects to species, would need to complete the 
technical assistance process identified in the new 2016 Biological 
Opinion and accompanying Memorandum of Understanding (MOU) or a habitat 
conservation plan under Section 10 of the ESA in order to demonstrate 
ESA compliance.
    As noted elsewhere in this preamble, FEIS, and the 2016 Biological 
Opinion, significant new information has become available that reveals 
that surface coal mining operations affect listed and proposed species 
and proposed and designated critical habitats in a manner and to an 
extent not considered in the 1996 Biological Opinion, independently 
triggering reinitiation of ESA section 7 consultation on the 1996 
Biological Opinion. Therefore, even without this rulemaking, OSMRE 
would have been required to reinitiate consultation on the continuation 
of existing permits and the approval and conduct of future surface coal 
mining and reclamation operations under both state and federal 
regulatory programs adopted pursuant to SMCRA. Further, any failure by 
OSMRE to ensure full implementation of this rulemaking in the Federal 
programs and all approved state regulatory programs would require OSMRE 
to reinitiate consultation on its surface coal mining program.
    Because full implementation of the final rule could potentially 
take several years under SMCRA's cooperative federalism framework, 
OSMRE included in its ESA section 7 consultation an evaluation of the 
potential impacts to species resulting from the continuation of 
existing permits approved under the 1996 Biological Opinion and the 
approval and conduct of future surface coal mining and reclamation 
operations by states under the existing regulations between the 
effective date of the stream protection rule and the time when states 
update their programs to be consistent with OSMRE's stream protection 
rule and all program amendments are approved by OSMRE. Therefore, the 
scope of the consultation includes direct implementation and 
enforcement of the final rule in federal program states, oversight of 
state programs under the existing regulations until those states amend 
their approved programs to be consistent with the final stream 
protection rule, oversight of state programs as modified to be 
consistent with the final stream protection rule, including OSMRE's 
oversight of compliance with requirements related to the protection and 
enhancement of proposed or listed species and proposed or designated 
critical habitats.
    Through the process of completing this section 7 consultation, 
OSMRE and the U.S. Fish and Wildlife Service entered into a MOU to 
improve

[[Page 93318]]

interagency coordination and cooperation to ensure that proposed, 
threatened, and endangered species and proposed and designated critical 
habitat are adequately protected for all surface coal mining and 
reclamation permitting actions, including exploration operations, 
initial permit issuance, renewals, and significant revisions. The MOU 
complements the U.S. Fish and Wildlife Service's 2016 programmatic 
Biological Opinion. The MOU specifically addresses the permit review 
and approval processes when proposed or listed species or proposed or 
designated critical habitats are involved, also referred to as the 
technical assistance process, and provides detailed dispute resolution 
procedures should there be disagreement between the SMCRA regulatory 
authority and the relevant U.S. Fish and Wildlife Service office under 
the final 2016 programmatic Biological Opinion for the rule.
    The U.S. Fish and Wildlife Service issued a programmatic Biological 
Opinion finding that OSMRE's direct enforcement of the federal 
regulatory program, approval and conduct of surface coal mining and 
reclamation operations by primacy states, and oversight and enforcement 
of those state programs, as modified by the final rule and associated 
MOU, is not likely to jeopardize the continued existence of proposed 
and listed species and is not likely to destroy or adversely modify 
proposed or designated critical habitat. Compliance with the terms and 
conditions of the 2016 programmatic Biological Opinion and the MOU is 
only required where a proposed surface coal mining operation may affect 
proposed or federally-listed species or proposed or designated critical 
habitat and the proposed operation chooses to obtain incidental take 
coverage through compliance with the 2016 programmatic Biological 
Opinion. Alternatively, where a proposed operation may impact proposed 
or federally-listed species or proposed or designated critical habitat, 
the applicant may pursue ESA compliance through a process under section 
10 or may modify its project so that it no longer has the potential to 
impact species or critical habitat.
    Further details on this consultation can be found in the Biological 
Assessment and Biological Opinion for the final rule, available at 
www.osmre.gov and on regulations.gov under the stream protection rule 
docket. These documents contain the final species lists on which the 
consultations were based, terms and conditions that must be followed to 
obtain incidental take coverage, as well as the terms under which this 
consultation would be reinitiated.
    We have determined that adoption of the final rule would have no 
effect on species under the jurisdiction of the National Marine 
Fisheries Service. As discussed below, no listed or proposed species 
under the National Marine Fisheries Service's jurisdiction occur in the 
study area or in such proximity to it that there would be any direct or 
indirect effects on them from this action.
    One federal agency specifically asked if we gave consideration to 
the impact upon salmon near Tyonek, Alaska. We did, and there are no 
listed salmon species in Alaska that would be impacted by mining 
activity. Furthermore, in response to the proposed rule, another 
commenter stated that we must consult with the National Marine 
Fisheries Service on this rule. The commenter also stated that because 
of the potential impacts to species under the National Marine Fisheries 
Service's jurisdiction, regulatory authorities must include the 
National Marine Fisheries Service in consultations pursuant to section 
7 of the Endangered Species Act.\824\ Specifically, the commenter 
alleged that the shortnose sturgeon and the New York Bight distinct 
population segment of Atlantic sturgeon are potentially impacted by 
drainage from coal mining in the anthracite region of Pennsylvania that 
flows into the Delaware River. The only drainage from coal mining in 
the anthracite region of Pennsylvania that flows into the Delaware 
River originates in Luzerne County and Schuylkill County. We conducted 
a geographic information systems analysis of the distance this drainage 
must travel before reaching the Delaware River. Drainage from Luzerne 
County, after traveling through smaller tributaries, flows first into 
the Lehigh River. It then travels 63 miles down the river before 
reaching the Delaware River at Easton, Pennsylvania at approximately 
mile 183.5 of the Delaware River. Atlantic sturgeons are believed to 
spawn between the salt front of estuaries and the fall line of major 
rivers. The fall line of the Delaware River is at Trenton, New Jersey, 
at approximately Delaware River mile 136. Shortnose sturgeons are known 
to spawn in the Delaware River between miles 133 and 145 of that river. 
Thus, this drainage would have to travel over 100 miles before it 
reached a point where Atlantic sturgeon or shortnose sturgeon may be 
present. Drainage from Schuylkill County would flow approximately 118 
miles down the Schuylkill River where it would enter the Delaware River 
at Philadelphia at mile 92.5 of the Delaware River. Given the dilution 
that would take place throughout these distances, we determined that 
there would be no effect on Atlantic sturgeon or shortnose sturgeon 
from mining in the anthracite region of Pennsylvania.
---------------------------------------------------------------------------

    \824\ 16 U.S.C. 1536.
---------------------------------------------------------------------------

    The commenter also stated there could be effects to the Carolina 
distinct population segment of the Atlantic sturgeon from potential 
mining in North Carolina. There has been no coal mining in North 
Carolina since 1953. North Carolina is not a part of the action area 
for this rulemaking and no mining is expected to occur there. 
Therefore, we have determined that this action will have no effect on 
the Carolina distinct population segment of Atlantic sturgeon.
    The commenter also stated that this rulemaking may have effects on 
the lower Rio Grande River and the Gulf of Mexico. The National Marine 
Fisheries Service provided us with a list of species that may be 
potentially affected in the Gulf of Mexico. The list included the 
following sea turtle and whale species: North Atlantic distinct 
population segment of the green turtle, the leatherback sea turtle, the 
northwest Atlantic distinct population segment of the loggerhead sea 
turtle, the hawksbill sea turtle, the Kemp's ridley sea turtle, the 
humpback whale, the sei whale, the fin whale, and the blue whale. None 
of these species occur in the action area in Texas, nor do they occur 
in the lower Rio Grande River. These obligate marine species (sea 
turtles and whales) occur in saltwater in the Gulf of Mexico. They 
never enter freshwater and do not occur in the area that this rule will 
impact. Because coal mining occurs in inland areas in this region, 
drainage from mining would have to travel down tributaries, into 
streams, then into large rivers and finally out into the Gulf of Mexico 
before any of the marine species could potentially be encountered. We 
conducted a geographic information system analysis of the drainage 
distance from potentially mineable coal to the Gulf Coast. The minimum 
drainage distance from potentially mineable coal to the Gulf Coast is 
80 river miles. We determined that the long distance, and the volume 
and chemistry of the receiving waters means that there would be no 
detectable residue of the drainage by the time the drainage encounters 
any threatened or endangered species. Therefore, there would be no 
effect on the marine species cited by the commenter.
    In conclusion, we determined that this rulemaking will have no 
effect on

[[Page 93319]]

species under the jurisdiction of the National Marine Fisheries 
Service. Therefore, it is not necessary to consult with the National 
Marine Fisheries Service under the Endangered Species Act.

M. Data Quality Act

    In developing this final rule, we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-554).

List of Subjects

30 CFR Part 700

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Surface mining, Underground mining

30 CFR Part 701

    Law enforcement, Surface mining, Underground mining

30 CFR Part 773

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Surface mining, Underground mining

30 CFR Part 774

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining

30 CFR Part 777

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining

30 CFR Part 779

    Environmental protection, Reporting and recordkeeping requirements, 
Surface mining

30 CFR Part 780

    Incorporation by reference, Reporting and recordkeeping 
requirements, Surface mining

30 CFR Part 783

    Environmental protection, Reporting and recordkeeping requirements, 
Underground mining

30 CFR Part 784

    Reporting and recordkeeping requirements, Underground mining

30 CFR Part 785

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining

30 CFR Part 800

    Insurance, Reporting and recordkeeping requirements, Surety bonds, 
Surface mining, Underground mining

30 CFR Part 816

    Environmental protection, Incorporation by reference, Reporting and 
recordkeeping requirements, Surface mining

30 CFR Part 817

    Environmental protection, Incorporation by reference, Reporting and 
recordkeeping requirements, Underground mining

30 CFR Part 824

    Environmental protection, Surface mining

30 CFR Part 827

    Environmental protection, Surface mining, Underground mining.

Janice M. Schneider,
Assistant Secretary, Land and Minerals Management.
    For the reasons set forth in the preamble, the Department amends 30 
CFR parts 700, 701, 773, 774, 777, 779, 780, 783, 784, 785, 800, 816, 
817, 824, and 827 as set forth below.

PART 700--GENERAL

0
1. The authority citation for part 700 continues to read as follows:

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

0
2. In Sec.  700.11, revise the section heading and paragraph (d) to 
read as follows:


Sec.  700.11  What coal exploration and coal mining operations are 
subject to our rules?

* * * * *
    (d) Termination and reassertion of jurisdiction--(1) Termination of 
jurisdiction for initial regulatory program sites. A regulatory 
authority may terminate its jurisdiction under the initial regulatory 
program over a completed surface coal mining and reclamation operation, 
or portion thereof, when the regulatory authority determines in writing 
that all requirements imposed under subchapter B of this chapter have 
been successfully completed.
    (2) Termination of jurisdiction for permanent regulatory program 
sites. A regulatory authority may terminate its jurisdiction under the 
permanent regulatory program over a completed surface coal mining and 
reclamation operation, or portion thereof, when--
    (i) The regulatory authority determines in writing that all 
requirements imposed under the applicable regulatory program have been 
successfully completed; or
    (ii) Where a performance bond or financial assurance was required, 
the regulatory authority has made a final decision in accordance with 
the applicable regulatory program to release the performance bond or 
financial assurance fully.
    (3) Reassertion of jurisdiction. Following a termination under 
paragraph (d)(1) or (2) of this section, the regulatory authority must 
reassert jurisdiction under the regulatory program over a site or 
operation whenever--
    (i) Conditions develop after termination of jurisdiction that would 
constitute a violation of the reclamation requirements of the 
applicable regulatory program;
    (ii) The conditions described in paragraph (d)(3)(i) of this 
section are the result of surface coal mining operations for which 
jurisdiction was terminated; and
    (iii) The written determination or bond release referred to in 
paragraph (d)(1) or (2) of this section was based upon fraud, 
collusion, or the intentional or unintentional misrepresentation of a 
material fact. The intentional or unintentional misrepresentation of a 
material fact includes the discovery of a discharge requiring treatment 
after termination of jurisdiction, provided that the conditions 
creating the need for treatment are the result of the mining operation.
    (4) Exception for certain underground mining requirements. The 
provisions of paragraphs (d)(1) and (2) of this section do not apply to 
the domestic water supply replacement requirements of Sec.  817.40 of 
this chapter or to the structural damage repair or compensation 
requirements of Sec.  817.121(d) of this chapter.

PART 701--PERMANENT REGULATORY PROGRAM

0
3. The authority citation for part 701 continues to read as follows:

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


0
4. Amend Sec.  701.5 as follows:
0
a. Revise the definitions for ``Acid drainage'' and ``Adjacent area''.
0
b. Add in alphabetical order a definition for ``Angle of dewatering'';
0
c. Revise the definition for ``Approximate original contour'';
0
d. Add in alphabetical order definitions for ``Backfill'', ``Bankfull 
stage'', and ``Biological condition'';
0
e. Revise the definition for ``Cumulative impact area'';
0
f. Add in alphabetical order a definition for ``Ecological function'';
0
g. Revise the definitions for ``Ephemeral stream'' and ``Excess 
spoil'';
0
h. Add in alphabetical order definitions for ``Fill'' and ``Form'';

[[Page 93320]]

0
i. Remove the definitions for ``Fugitive dust'' and ``Ground water'';
0
j. Add in alphabetical order a definition for ``Groundwater'';
0
k. Remove the definition for ``Highwall remnant'';
0
l. Revise the definition for ``Hydrologic balance'';
0
m. Add in alphabetical order a definition for ``Hydrologic function'';
0
n. Revise the definition for ``Intermittent stream'';
0
o. Add in alphabetical order a definition for ``Invasive species'':
0
p. Revise the definitions for ``Land use'' and ``Material damage'';
0
q. Add in alphabetical order a definition for ``Material damage to the 
hydrologic balance outside the permit area'';
0
r. Revise the definition for ``Mountaintop removal mining'';
0
s. Add in alphabetical order a definition for ``Native species'';
0
t. Revise the definition for ``Occupied residential dwelling and 
structures related thereto'';
0
u. Add in alphabetical order definitions for ``Ordinary high water 
mark'' and ``Parameters of concern'';
0
v. Revise the definition for ``Perennial stream'';
0
w. Add in alphabetical order a definition for ``Premining'';
0
x. Revise the definition for ``Reclamation'';
0
y. Add in alphabetical order a definition for ``Reclamation plan''; and
0
z. Revise the definitions for ``Renewable resource lands'', 
``Replacement of water supply'', and ``Temporary diversion''.
    The revisions and additions read as follows:


Sec.  701.5  Definitions.

    Acid drainage or acid mine drainage means water with a pH of less 
than 6.0 and in which total acidity exceeds total alkalinity that is 
discharged from an active, inactive, or abandoned surface coal mining 
and reclamation operation or from an area affected by surface coal 
mining and reclamation operations.
* * * * *
    Adjacent area means--
    (1) Basic definition for all operations and all resources. (i) 
Except as provided in paragraph (1)(ii) of this definition, the 
adjacent area includes those areas outside the proposed or actual 
permit area within which there is a reasonable probability of adverse 
impacts from surface coal mining operations or underground mining 
activities, as determined by the regulatory authority. The area covered 
by this term will vary with the context in which a regulation uses this 
term; i.e., the nature of the resource or resources addressed by a 
regulation in which the term ``adjacent area'' appears will determine 
the size and other dimensions of the adjacent area for purposes of that 
regulation.
    (ii) In the context of the Endangered Species Act of 1973, 16 
U.S.C. 1531 et seq., the term adjacent area includes those areas 
outside the proposed or actual permit area where surface coal mining 
operations or underground mining activities may affect a species listed 
or proposed for listing as endangered or threatened under that Act or 
designated or proposed critical habitat under that Act.
    (2) Underground mines. For underground mines, the adjacent area 
includes, at a minimum, the area overlying the underground workings 
plus the area within a reasonable angle of dewatering from the 
perimeter of the underground workings.
    (3) Underground mine pools. For all operations, the adjacent area 
also includes the area that might be affected physically or 
hydrologically by the dewatering of existing mine pools as part of 
surface or underground mining operations, plus the area that might be 
affected physically or hydrologically by mine pools that develop after 
cessation of mining activities.
* * * * *
    Angle of dewatering means the angle created from a vertical line 
drawn from the outer edge or boundary of high-extraction underground 
mining workings and an oblique line drawn from terminus of the vertical 
line at the mine floor to the farthest expected extent that the mining 
will cause dewatering of groundwater or surface water.
* * * * *
    Approximate original contour means that surface configuration 
achieved by backfilling and grading of the mined area so that the 
reclaimed area closely resembles the general surface configuration of 
the land within the permit area prior to any mining activities or 
related disturbances and blends into and complements the drainage 
pattern of the surrounding terrain. All highwalls and spoil piles must 
be eliminated to meet the terms of the definition, but that requirement 
does not prohibit the approval of terracing under Sec.  816.102 or 
Sec.  817.102 of this chapter, the retention of access roads in 
accordance with Sec.  816.150 or Sec.  817.151 of this chapter, or the 
approval of permanent water impoundments that comply with Sec. Sec.  
816.49, 816.55, and 780.24(b) or Sec. Sec.  817.49, 817.55, and 
784.24(b) of this chapter. For purposes of this definition, the term 
``mined area'' does not include excess spoil fills and coal refuse 
piles.
* * * * *
    Backfill, when used as a noun, means the spoil and waste materials 
used to fill the void resulting from an excavation created for the 
purpose of extracting coal from the earth. When used as a verb, the 
term refers to the process of filling that void. The term also includes 
all spoil and waste materials used to restore the approximate original 
contour.
    Bankfull stage means the water level at which a stream, river, or 
lake begins to overflow its natural banks and enter the active 
floodplain, with the exception of an entrenched stream, river, or lake, 
in which case bankfull stage is the highest scour line, bench, or top 
of the point bar.
* * * * *
    Biological condition refers to the type, diversity, distribution, 
and abundance of aquatic organisms and communities found in surface 
water bodies, including streams.
* * * * *
    Cumulative impact area means an area that includes the--
    (1) Actual or proposed permit area.
    (2) HUC-12 (U.S. Geological Survey 12-digit Watershed Boundary 
Dataset) watershed or watersheds in which the actual or proposed permit 
area is located or a differently-sized watershed adequate for purposes 
of preparation of the cumulative hydrologic impact assessment, as 
determined by the regulatory authority.
    (3) Any other area within which impacts resulting from an actual or 
proposed surface or underground coal mining operation may interact with 
the impacts of all existing and anticipated surface and underground 
coal mining on surface-water and groundwater systems, including the 
impacts that existing and anticipated mining will have during mining 
and reclamation until final bond release. At a minimum, existing and 
anticipated mining must include:
    (i) The proposed operation;
    (ii) All existing surface and underground coal mining operations;
    (iii) Any proposed surface or underground coal mining operation for 
which a permit application has been submitted to the regulatory 
authority;
    (iv) Any proposed surface or underground coal mining operation for 
which a request for an authorization, certification, or permit has been 
submitted under the Clean Water Act; and
    (v) All existing and proposed coal mining operations that are 
required to

[[Page 93321]]

meet diligent development requirements for leased federal coal and for 
which a resource recovery and protection plan has been either approved 
or submitted to and reviewed by the authorized officer of the Bureau of 
Land Management under 43 CFR 3482.1(b).
* * * * *
    Ecological function of a stream means the species richness, 
diversity, and extent of plants, insects, amphibians, reptiles, fish, 
birds, mammals, and other organisms for which the stream provides 
habitat, food, water, or shelter. The biological condition of a stream 
is one way to describe its ecological function.
* * * * *
    Ephemeral stream means a stream or part of a stream that has 
flowing water only during, and for a short duration after, 
precipitation and snowmelt events in a typical year. Ephemeral streams 
include only those conveyances with channels that display both a bed-
and-bank configuration and an ordinary high water mark, and that have 
streambeds located above the water table year-round. Groundwater is not 
a source of water for streamflow. Runoff from rainfall events and 
snowmelt is the primary source of water for streamflow.
* * * * *
    Excess spoil means spoil material permanently disposed of within 
the permit area in a location other than the mined-out area. This term 
also includes all spoil material placed on the mined-out area in excess 
of the amount necessary to restore the approximate original contour 
when the spoil placement is part of an excess spoil fill with a toe 
located outside the mined-out area. This term does not include--
    (1) Spoil used to restore the approximate original contour;
    (2) Spoil used to blend the final configuration of the mined-out 
area with the surrounding terrain in non-steep slope areas in 
accordance with Sec.  816.102(b)(3) or Sec.  817.102(b)(2) of this 
chapter;
    (3) Spoil placed outside the mined-out area as part of a remining 
operation under Sec.  816.106 or Sec.  817.106 of this chapter;
    (4) Spoil placed within the mined-out area in accordance with the 
thick overburden provisions of Sec.  816.105(b)(1) of this chapter, 
with the exception of spoil material placed on the mined-out area as 
part of an excess spoil fill with a toe located outside the mined-out 
area; or
    (5) Any temporary stockpile of material that will be subsequently 
transported to another location.
* * * * *
    Fill means a permanent, non-impounding structure constructed under 
Sec. Sec.  816.71 through 816.83 or Sec. Sec.  817.71 through 817.83 of 
this chapter for the purpose of disposing of excess spoil or coal mine 
waste generated by surface coal mining operations or underground mining 
activities.
* * * * *
    Form, as used in Sec. Sec.  780.28, 784.28, 800.42, 816.57, and 
817.57 of this chapter, means the physical characteristics, pattern, 
profile, and dimensions of a stream channel. The term includes, but is 
not limited to, the ratio of the flood-prone area to the bankfull width 
(entrenchment), the ratio of the channel width to channel depth, 
channel slope, sinuosity, bankfull depth, dominant in-stream substrate 
particle size, and capacity for riffles and pools.
* * * * *
    Groundwater means subsurface water located in soils and geologic 
formations that are fully saturated with water, including regional, 
local, and perched aquifers. This term does not include water in soil 
horizons that are temporarily saturated by precipitation events.
* * * * *
    Hydrologic balance means the relationship between the quality and 
quantity of water inflow to, water outflow from, and water storage in a 
hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or 
reservoir. It encompasses the dynamic relationships among 
precipitation, runoff, evaporation, and changes in storage of 
groundwater and surface water, as well as interactions that result in 
changes in the chemical composition or physical characteristics of 
groundwater and surface water.
    Hydrologic function, as used in Sec. Sec.  780.28, 784.28, 800.42, 
816.57, and 817.57 of this chapter, means the role that streams play in 
the transport of water and the flow of water within the stream channel 
and floodplain. The term includes total flow volume, seasonal 
variations in streamflow and base flow, and provision of the water 
needed to maintain floodplains and wetlands associated with the stream.
* * * * *
    Intermittent stream means a stream or part of a stream that has 
flowing water during certain times of the year when groundwater 
provides water for streamflow. The water table is located above the 
streambed for only part of the year, which means that intermittent 
streams may not have flowing water during dry periods. Runoff from 
rainfall events and snowmelt is a supplemental source of water for 
streamflow. Intermittent streams include only those conveyances with 
channels that display both a bed-and-bank configuration and an ordinary 
high water mark.
    Invasive species means an alien species (a species that is not 
native to the region or area), the introduction of which has caused or 
is likely to cause economic or environmental harm or harm to human 
health.
* * * * *
    Land use means specific uses or management-related activities, 
rather than the vegetation or cover of the land. Land uses may be 
identified in combination when joint or seasonal uses occur. Each land 
use category includes land used for facilities that support the land 
use. For purposes of this chapter, the following land use categories 
apply:
    (1) Cropland. Land used for the production of crops for harvest, 
either alone or in rotation with grasses and legumes. Crops include row 
crops, small grains, hay, commercial nursery plantings, vegetables, 
fruits, nuts, crops, and other plants typically cultivated for 
commercial purposes in fields, orchards, vineyards, and similar 
settings.
    (2) Pastureland or land occasionally cut for hay. Land used 
primarily for the long-term production of adapted, domesticated forage 
plants to be grazed by livestock or occasionally cut and cured for 
livestock feed.
    (3) Grazing land. Land used for grasslands and forest lands where 
the indigenous vegetation is actively managed for grazing, browsing, or 
occasional hay production.
    (4) Forestry. Land used or managed for the long-term production of 
wood, wood fiber, or wood-derived products.
    (5) Residential. Land used for single-and multiple-family housing, 
mobile home parks, or other residential lodgings.
    (6) Industrial/Commercial. Land used for--
    (i) Extraction or transformation of materials for fabrication of 
products, wholesaling of products, or long-term storage of products. 
This includes all heavy and light manufacturing facilities.
    (ii) Retail or trade of goods or services, including hotels, 
motels, stores, restaurants, and other commercial establishments.
    (7) Recreation. Land used for public or private leisure-time 
activities, including developed recreation facilities such as parks, 
camps, and amusement areas, as well as areas for less intensive uses 
such as hiking, canoeing, and other undeveloped recreational uses.
    (8) Fish and wildlife habitat. Land dedicated wholly or partially 
to the

[[Page 93322]]

production, protection, or management of species of fish or wildlife.
    (9) Developed water resources. Land used for storing water for 
beneficial uses, such as stock ponds, irrigation, fire protection, 
flood control, and water supply.
    (10) Undeveloped land or no current use or land management. Land 
that is undeveloped or, if previously developed, land that has been 
allowed to return naturally to an undeveloped state or has been allowed 
to return to forest through natural succession.
* * * * *
    Material damage, in the context of Sec. Sec.  784.30 and 817.121 of 
this chapter, which pertain to subsidence from underground mining 
operations, means:
    (1) Any functional impairment of surface lands, surface features 
(including wetlands, streams, and bodies of water), structures, or 
facilities;
    (2) Any physical change that--
    (i) Has a significant adverse impact on the affected land's 
capability to support any current or reasonably foreseeable uses; or
    (ii) Causes a significant loss in production or income; or
    (3) Any significant change in the condition, appearance, or utility 
of any structure or facility from its pre-subsidence condition.
    Material damage to the hydrologic balance outside the permit area 
means an adverse impact, as determined in accordance with the rest of 
this definition, resulting from surface coal mining and reclamation 
operations, underground mining activities, or subsidence associated 
with underground mining activities, on the quality or quantity of 
surface water or groundwater, or on the biological condition of a 
perennial or intermittent stream. The determination of whether an 
adverse impact constitutes material damage to the hydrologic balance 
outside the permit area will be based on consideration of the baseline 
data collected under Sec.  780.19 or Sec.  784.19 of this chapter and 
the following reasonably anticipated or actual effects of the 
operation:
    (1) For a surface water located outside the permit area, effects 
that cause or contribute to a violation of applicable state or tribal 
water quality standards, including, but not limited to, state or tribal 
water quality standards established under section 303(c) of the Clean 
Water Act, 33 U.S.C. 1313(c), or, for a surface water for which water 
quality standards have not been established, effects that cause or 
contribute to non-attainment of any premining use of that surface water 
outside the permit area;
    (2) Effects that cause or contribute to a violation of applicable 
state or tribal water quality standards for groundwater located outside 
the permit area, or effects that preclude a premining use of 
groundwater located outside the permit area; or
    (3) Effects that result in a violation of the Endangered Species 
Act of 1973, 16 U.S.C. 1531 et seq.
* * * * *
    Mountaintop removal mining means surface mining activities in which 
the mining operation extracts an entire coal seam or seams running 
through the upper fraction of a mountain, ridge, or hill, except for 
outcrop barriers retained under Sec.  824.11(b)(2) of this chapter, by 
removing substantially all overburden above the coal seam and using 
that overburden to create a level plateau or a gently rolling contour, 
with no highwalls remaining, that is capable of supporting one or more 
of the postmining land uses identified in Sec.  785.14 of this chapter.
* * * * *
    Native species means, with respect to a particular ecosystem, a 
species that historically occurred or currently occurs in that 
ecosystem. This term does not include alien species that occur in that 
ecosystem or species introduced to that ecosystem.
* * * * *
    Occupied residential dwelling and structures related thereto means, 
for purposes of Sec. Sec.  784.30 and 817.121 of this chapter, any 
building or other structure that, at the time the subsidence occurs, is 
used either temporarily, occasionally, seasonally, or permanently for 
human habitation. This term also includes any building, structure, or 
facility installed on, above, or below the land surface if that 
building, structure, or facility is adjunct to or used in connection 
with an occupied residential dwelling. Examples of such structures 
include, but are not limited to, garages; storage sheds and barns; 
greenhouses and related buildings; utilities and cables; fences and 
other enclosures; retaining walls; paved or improved patios, walks and 
driveways; septic sewage treatment facilities; and lot drainage and 
lawn and garden irrigation systems. This term does not include any 
structure used only for commercial agricultural, industrial, retail or 
other commercial purposes.
* * * * *
    Ordinary high water mark means that line on the bank established by 
the fluctuations of water and indicated by physical characteristics 
such as a clear, natural line impressed on the bank, shelving, changes 
in the character of soil, destruction of terrestrial vegetation, the 
presence of litter and debris, or other appropriate means that consider 
the characteristics of the surrounding areas.
* * * * *
    Parameters of concern means those chemical or physical 
characteristics and properties of surface water or groundwater that 
could be altered by surface or underground mining activities, including 
discharges associated with those activities, in a manner that would 
adversely impact the quality of groundwater or surface water, including 
adverse impacts on aquatic life.
    Perennial stream means a stream or part of a stream that has 
flowing water year-round during a typical year. The water table is 
located above the streambed for most of the year. Groundwater is the 
primary source of water for streamflow. Runoff from rainfall events and 
snowmelt is a supplemental source of water for streamflow. Perennial 
streams include only those conveyances with channels that display both 
a bed-and-bank configuration and an ordinary high water mark.
* * * * *
    Premining refers to the conditions and features that exist on a 
site at the time of application for a permit to conduct surface coal 
mining operations.
* * * * *
    Reclamation means those actions taken to restore mined land and 
associated disturbed areas to a condition in which the site is capable 
of supporting the uses it was capable of supporting prior to any mining 
or any higher or better uses approved by the regulatory authority. The 
site also must meet all other requirements of the permit and regulatory 
program that pertain to restoration of the site. For sites with 
discharges that require treatment, this term also includes those 
actions taken to eliminate, remediate, or treat those discharges, 
including both discharges from the mined area and all other discharges 
that are hydrologically connected to either the mined area or the 
operation, regardless of whether those discharges are located within 
the disturbed area.
    Reclamation plan means the plan for reclamation of surface coal 
mining operations under parts 780, 784, and 785 of this chapter.
* * * * *
    Renewable resource lands means aquifers, aquifer recharge areas, 
recharge areas for other subsurface water, watersheds for surface water 
bodies that

[[Page 93323]]

function as a water supply, areas for agricultural or silvicultural 
production of food and fiber, and grazing lands.
    Replacement of water supply means, with respect to protected water 
supplies contaminated, diminished, or interrupted by coal mining 
operations, provision of water supply on both a temporary and permanent 
basis equivalent to premining quantity and quality. Replacement 
includes provision of an equivalent water-delivery system and payment 
of operation and maintenance costs in excess of customary and 
reasonable delivery costs for premining water supplies.
* * * * *
    Temporary diversion means a channel constructed to convey 
streamflow or overland flow away from the site of actual or proposed 
coal exploration or surface coal mining and reclamation operations or 
to convey those flows to a siltation structure or other treatment 
facility. The term includes only those channels not approved by the 
regulatory authority to remain after reclamation as part of the 
approved postmining land use.
* * * * *

0
5. Add Sec.  701.16 to read as follows:


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

    (a) General applicability. The revisions to parts 701 through 827 
of this chapter that became effective on January 19, 2017 (hereafter 
referred to as the stream protection rule) apply as provided therein 
or, if there is no specific applicability provision in the revisions, 
to--
    (1) Any application for a new permit submitted to the regulatory 
authority after the effective date of the stream protection rule under 
the applicable regulatory program.
    (2) Any application for a new permit pending a decision under Sec.  
773.7 of this chapter or its state program counterpart as of the 
effective date of the stream protection rule under the applicable 
regulatory program, unless the regulatory authority has determined the 
application to be administratively complete under Sec.  777.15 of this 
chapter or its state program counterpart before the effective date of 
the stream protection rule under the applicable regulatory program.
    (3) Any application for the addition of acreage to an existing 
permit submitted to the regulatory authority after the effective date 
of the stream protection rule under the applicable regulatory program, 
with the exception of applications for incidental boundary revisions 
that do not propose to add acreage for coal removal.
    (4) Any application for the addition of acreage to an existing 
permit pending a decision under Sec.  773.7 of this chapter or its 
state program counterpart as of the effective date of the stream 
protection rule under the applicable regulatory program, with two 
exceptions:
    (i) Applications for incidental boundary revisions that do not 
propose to add acreage for coal removal; and
    (ii) Applications that the regulatory authority has determined to 
be administratively complete before the effective date of the stream 
protection rule under the applicable regulatory program.
    (5) Any application for a permit revision submitted on or after the 
effective date of the stream protection rule under the applicable 
regulatory program, or pending a decision as of that date, that 
proposes a new excess spoil fill, coal mine waste refuse pile, or coal 
mine waste slurry impoundment or that proposes to move or expand the 
location of an approved excess spoil fill or coal mine waste facility.
    (b) [Reserved]

PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING

0
6. The authority citation for part 773 is revised to read as follows:

    Authority: 30 U.S.C. 1201 et seq., 54 U.S.C. 300101 et seq., 16 
U.S.C. 661 et seq., 16 U.S.C. 703 et seq., 16 U.S.C. 668a et seq., 
16 U.S.C. 469 et seq., and 16 U.S.C. 1531 et seq.


0
7. Revise Sec.  773.5 to read as follows:


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

    (a) To avoid duplication, each regulatory program must provide for 
the coordination of review of permit applications and issuance of 
permits for surface coal mining operations with the federal and state 
agencies responsible for permitting and related actions under the 
following laws and their implementing regulations:
    (1) The Clean Water Act (33 U.S.C. 1251 et seq.).
    (2) The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
    (3) The Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.).
    (4) The Migratory Bird Treaty Act of 1918 (16 U.S.C. 703 et seq.).
    (5) The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d).
    (b) In addition to the requirements of paragraph (a) of this 
section, each federal regulatory program must provide for coordination 
of the review of permit applications and issuance of permits for 
surface coal mining operations with applicable requirements of the 
following laws and their implementing regulations:
    (1) The National Historic Preservation Act of 1966 (54 U.S.C. 
300101 et seq.).
    (2) The Archeological and Historic Preservation Act of 1974 (16 
U.S.C. 469 et seq.).
    (3) The Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470aa et seq.), where federal or Indian lands covered by that Act are 
involved.
    (4) The National Environmental Policy Act of 1969 (42 U.S.C. 4371 
et seq.).

0
8. Revise Sec.  773.7 to read as follows:


Sec.  773.7  How and when will the regulatory authority review and make 
a decision on an application for a permit, permit revision, or permit 
renewal?

    (a) General. The regulatory authority will review an application 
for a permit, permit revision, or permit renewal; and issue a written 
decision granting, requiring modification of, or denying the 
application. Before making this decision, the regulatory authority must 
consider any written comments and objections submitted, as well as the 
records of any informal conference or hearing held on the application.
    (b) When will the regulatory authority make a decision on a permit 
application? (1) If an informal conference is held under Sec.  773.6(c) 
of this part, the regulatory authority will issue a decision on the 
application within 60 days of the close of the conference.
    (2) If no informal conference is held under Sec.  773.6(c) of this 
part, the regulatory authority must issue a decision on the application 
within a reasonable time established in the regulatory program. In 
determining what constitutes a reasonable time, the regulatory 
authority must consider the following five factors:
    (i) The time needed for proper site investigations.
    (ii) The complexity of the permit application.
    (iii) Whether there are any written objections on file.
    (iv) Whether the application previously has been approved or 
disapproved, in whole or in part.
    (v) The time required for coordination of permitting activities 
with other agencies under Sec.  773.5 of this part.
    (c) Who has the burden of proof? You, the applicant for a permit, 
revision of a permit, or the transfer, assignment, or sale of permit 
rights, have the burden of establishing that your application is in 
compliance with all requirements of the regulatory program.

[[Page 93324]]


0
9. Revise Sec.  773.15 to read as follows:


Sec.  773.15  What findings must the regulatory authority make before 
approving a permit application?

    The regulatory authority may not approve any application for a 
permit or a significant revision of a permit that you, the applicant, 
submit unless the application affirmatively demonstrates and the 
regulatory authority finds, in writing, on the basis of information set 
forth in the application or from information otherwise available that 
is documented in the approval, that--
    (a) The application is accurate and complete and you have complied 
with all applicable requirements of the Act and the regulatory program.
    (b) You have demonstrated that reclamation as required by the Act 
and the regulatory program can be accomplished under the reclamation 
plan contained in the permit application.
    (c) The proposed permit area is not within an area--
    (1) Under study or administrative proceedings under a petition 
filed pursuant to part 764 or part 769 of this chapter to have an area 
designated as unsuitable for surface coal mining operations, unless you 
demonstrate that you made substantial legal and financial commitments 
before January 4, 1977, in relation to the operation covered by the 
permit application;
    (2) Designated under parts 762 and 764 or 769 of this chapter as 
unsuitable for the type of surface coal mining operations that you 
propose to conduct; or
    (3) Subject to the prohibitions of Sec.  761.11 of this chapter, 
unless one or more of the exceptions provided under that section apply.
    (d) For mining operations where the private mineral estate to be 
mined has been severed from the private surface estate, you have 
submitted to the regulatory authority the documentation required under 
Sec.  778.15(b) of this chapter.
    (e) The regulatory authority has--
    (1) Made an assessment of the probable cumulative impacts of all 
anticipated coal mining on the hydrologic balance in the cumulative 
impact area; and
    (2) Determined that the proposed operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area.
    (f) You have demonstrated that any existing structure will comply 
with Sec.  701.11(d) of this chapter and the applicable performance 
standards of subchapter B or K of this chapter.
    (g) You have paid all reclamation fees from previous and existing 
operations as required by subchapter R of this chapter.
    (h) You have satisfied the applicable requirements of part 785 of 
this chapter.
    (i) If applicable, you have satisfied the requirements for approval 
of a long-term, intensive agricultural postmining land use.
    (j)(1) You have provided documentation that the proposed surface 
coal mining and reclamation operations would have no effect on species 
listed or proposed for listing as threatened or endangered under the 
Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., or on 
designated or proposed critical habitat under that law; or
    (2) You and the regulatory authority have documented compliance 
with a valid biological opinion that covers issuance of permits for 
surface coal mining operations and the conduct of those operations 
under the applicable regulatory program; or
    (3) You have provided documentation that interagency consultation 
under section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1536, 
has been completed for the proposed operation; or
    (4) You have provided documentation that the proposed operation is 
covered under a permit issued pursuant to section 10 of the Endangered 
Species Act of 1973, 16 U.S.C. 1539.
    (k) The regulatory authority has taken into account the effect of 
the proposed permitting action on properties listed on and eligible for 
listing on the National Register of Historic Places. This finding may 
be supported in part by inclusion of appropriate permit conditions or 
changes in the operation plan protecting historic resources or a 
documented decision that the regulatory authority has determined that 
no additional protection measures are necessary.
    (l) For a proposed remining operation where you intend to reclaim 
in accordance with the requirements of Sec.  816.106 or Sec.  817.106 
of this chapter, the site of the operation is a previously mined area, 
as that term is defined in Sec.  701.5 of this chapter.
    (m) You are eligible to receive a permit, based on the reviews 
under Sec. Sec.  773.7 through 773.14 of this part.
    (n) You have demonstrated, and the regulatory authority concurs, 
that--
    (1) The operation has been designed to prevent the formation of 
toxic mine drainage that would require long-term treatment after mining 
has been completed.
    (2) A thorough analysis of all available evidence supports a 
conclusion that the design of the proposed operation will work as 
intended to prevent the formation of discharges that would require 
long-term treatment after mining has been completed. If a study or 
other evidence supports a contrary conclusion, you must explain why 
that study or other evidence is not credible or applicable to the 
proposed operation.
    (o) To the extent possible using the best technology currently 
available, the proposed operation has been designed to minimize 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values and to achieve enhancement of those resources 
where practicable, as required under Sec.  780.16 or Sec.  784.16 of 
this chapter.

0
10. Revise Sec.  773.17 to read as follows:


Sec.  773.17  What conditions must the regulatory authority place on 
each permit issued?

    The regulatory authority must include the following conditions in 
each permit issued:
    (a) You, the permittee, may conduct surface coal mining and 
reclamation operations only on those lands that are specifically 
designated as the permit area on the maps submitted with the 
application and authorized for the term of the permit and that are 
subject to the performance bond or other equivalent guarantee in effect 
pursuant to part 800 of this chapter.
    (b) You must conduct all surface coal mining and reclamation 
operations only as described in the approved application, except to the 
extent that the regulatory authority otherwise directs in the permit.
    (c) You must comply with the terms and conditions of the permit, 
all applicable requirements of the Act, and the requirements of the 
regulatory program.
    (d) Without advance notice, delay, or a search warrant, upon 
presentation of appropriate credentials, you must allow authorized 
representatives of the Secretary and the regulatory authority to--
    (1) Have the right of entry provided for in Sec. Sec.  842.13 and 
840.12 of this chapter; and
    (2) Be accompanied by private persons for the purpose of conducting 
an inspection in accordance with parts 840 and 842 of this chapter, 
when the inspection is in response to an alleged violation reported to 
the regulatory authority by the private person.
    (e) You must take all possible steps to minimize any adverse impact 
to the environment or public health and safety resulting from 
noncompliance with any term or condition of the permit, including, but 
not limited to--

[[Page 93325]]

    (1) Any accelerated or additional monitoring necessary to determine 
the nature and extent of noncompliance and the results of the 
noncompliance.
    (2) Immediate implementation of measures necessary to comply.
    (3) Warning, as soon as possible after learning of such 
noncompliance, any person whose health and safety is in imminent danger 
due to the noncompliance.
    (4) Notifying the regulatory authority and other appropriate state 
and federal regulatory agencies whenever conditions within the permit 
area result in an imminent danger to the health or safety of the public 
or cause or can reasonably be expected to cause significant, imminent 
environmental harm to land, air, or water resources, regardless of 
whether a noncompliance exists.
    (f) As applicable, you must comply with Sec.  701.11(d) and 
subchapter B or K of this chapter for compliance, modification, or 
abandonment of existing structures.
    (g) You or the operator must pay all reclamation fees required by 
subchapter R of this chapter for coal produced under the permit for 
sale, transfer, or use, in the manner required by that subchapter.
    (h) You must obtain all necessary authorizations, certifications, 
and permits in accordance with other applicable federal, state, and 
tribal laws before conducting any activities that require 
authorization, certification, or a permit under those laws.
    (i) You must comply with all effluent limitations and conditions in 
any National Pollutant Discharge Elimination System permit issued for 
your operation by the appropriate authority under the Clean Water Act, 
33 U.S.C. 1251 et seq.

0
11. Add Sec.  773.20 to read as follows:


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

    (a) We, the regulatory authority, will take the actions set forth 
in paragraphs (b) through (f) of this section if we issue a permit on 
the basis of what we later determine to be inaccurate baseline 
information, provided that the information is inaccurate to the extent 
that it would invalidate one or more of the findings required for 
permit application approval under Sec.  773.15 or other provisions of 
this chapter.
    (b) We will provide you, the permittee, with written notice that we 
have made a preliminary finding that your permit was issued on the 
basis of inaccurate information of the nature described in paragraph 
(a) of this section. The notice will set forth the reasons for that 
finding.
    (c) Within 30 days of receiving a notice under paragraph (b) of 
this section, you may--
    (1) Challenge the preliminary finding by providing us with an 
explanation of why the information either is not inaccurate or does not 
meet the standard established in paragraph (a) of this section; or
    (2) Supply, or agree to supply, updated information and submit an 
application to revise the permit as needed to correct the deficiency in 
an expeditious manner.
    (d)(1) We will evaluate any explanation that you submit under 
paragraph (c)(1) of this part.
    (2)(i) If you do not take either of the actions identified under 
paragraph (c) of this section, or if the evaluation under paragraph 
(d)(1) of this section determines that the deficiency identified in our 
preliminary finding still exists, we will serve you with a written 
notice of proposed suspension or rescission of the permit, together 
with a statement of the reasons for the proposed suspension or 
rescission,
    (ii) Any proposed suspension or rescission will take effect 60 days 
from the date that we provide notice under paragraph (d)(2)(i) of this 
section, unless you obtain temporary relief under Sec.  775.11(b)(2) of 
this chapter.
    (3) The proposed suspension or rescission under paragraph (d)(2) of 
this section is subject to administrative review under part 775 of this 
chapter.
    (4) Section 843.14 of this chapter will govern service under 
paragraph (d)(2) of this section.
    (e)(1) If we suspend your permit under paragraph (d)(2) of this 
section, you must cease all surface coal mining operations under the 
permit and complete all affirmative obligations specified in the 
suspension order within the time established in that order. We will 
rescind your permit in accordance with paragraph (d)(2) of this section 
if you do not complete those obligations within the time specified.
    (2) If we rescind your permit under paragraph (d)(2) of this 
section, you must cease all surface coal mining operations under the 
permit and complete reclamation within the time specified in the order.
    (f)(1) If we suspend or rescind your permit under paragraph (d)(2) 
of this section, the bond posted for the permit will remain in effect 
until you complete all reclamation obligations under the reclamation 
plan approved in the permit and obtain bond release under Sec. Sec.  
800.40 through 800.44 of this chapter.
    (2) We will initiate bond forfeiture proceedings under Sec.  800.50 
of this chapter if you do not complete all reclamation obligations 
within the time specified in the order issued under paragraph (d)(2) of 
this section.

PART 774--REVISION; RENEWAL; TRANSFER, ASSIGNMENT, OR SALE OF 
PERMIT RIGHTS; POST-PERMIT ISSUANCE REQUIREMENTS

0
12. The authority citation for part 774 continues to read as follows:

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


0
13. Revise the part heading for part 774 to read as set forth above.

0
14. Revise Sec.  774.9 to read as follows:


Sec.  774.9  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 it control number 1029-0116. The regulatory 
authority uses this information to determine if you, the applicant, 
meet the requirements for permit revision; permit renewal; or the 
transfer, assignment, or sale of permit rights. The regulatory 
authority also uses this information to update the Applicant/Violator 
System. You 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. Send comments regarding burden estimates or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to the Office of Surface Mining Reclamation and 
Enforcement, Information Collection Clearance Officer, Room 203-SIB, 
1951 Constitution Avenue NW., Washington, DC 20240.

0
15. Revise Sec.  774.10 to read as follows:


Sec.  774.10  When must the regulatory authority review a permit after 
issuance?

    (a)(1) The regulatory authority must review each permit issued and 
outstanding under an approved regulatory program during the term of the 
permit.
    (2) The review required by paragraph (a)(1) of this section must 
include, but is not limited to, an evaluation of the impacts of the 
operation on fish, wildlife, and related environmental values in the 
permit and adjacent areas. The regulatory authority must use that 
evaluation to determine whether it is necessary to order the permittee 
to modify the fish and wildlife enhancement plan approved in the

[[Page 93326]]

permit to ensure that the operation minimizes disturbances and adverse 
impacts on fish, wildlife, and related environmental values within the 
permit and adjacent areas to the extent possible using the best 
technology currently available.
    (3) The review required by paragraph (a)(1) of this section must 
occur not later than the middle of each permit term except that permits 
with a term longer than 5 years must be reviewed no less frequently 
than the permit midterm or every 5 years, whichever is more frequent.
    (4) Permits granted in accordance with Sec.  785.14 of this chapter 
(mountaintop removal mining) and permits containing a variance from 
approximate original contour restoration requirements in accordance 
with Sec.  785.16 of this chapter must be reviewed no later than 3 
years from the date of issuance of the permit, unless the permittee 
affirmatively demonstrates that the proposed development is proceeding 
in accordance with the terms of the permit. This review may be combined 
with the first review conducted under paragraph (a)(3) of this section 
if the permit term does not exceed 5 years.
    (5) Permits containing an experimental practice approved in 
accordance with Sec.  785.13 of this chapter must be reviewed as set 
forth in the permit or at least every 2\1/2\ years from the date of 
issuance as required by the regulatory authority, in accordance with 
Sec.  785.13(g) of this chapter.
    (6) Permits granted in accordance with Sec.  785.18 of this chapter 
(variance for delay in contemporaneous reclamation requirement in 
combined surface and underground mining operations) must be reviewed no 
later than 3 years from the date of issuance of the permit. This review 
may be combined with the first review conducted under paragraph (a)(3) 
of this section if the permit term does not exceed 5 years.
    (b) After a review required by paragraph (a) of this section, or at 
any time, the regulatory authority may, by order, require reasonable 
revision of a permit in accordance with Sec.  774.13 to ensure 
compliance with the Act and the regulatory program.
    (c) Any order of the regulatory authority requiring revision of a 
permit must be based upon written findings and is subject to the 
provisions for administrative and judicial review in part 775 of this 
chapter. Copies of the order must be sent to the permittee.
    (d) Permits may be suspended or revoked in accordance with 
subchapter L of this chapter.

0
16. Revise Sec.  774.15 to read as follows:


Sec.  774.15  How may I renew a permit?

    (a) Right of renewal. A valid permit, issued pursuant to an 
approved regulatory program, carries with it the right of successive 
renewal, within the approved boundaries of the existing permit, upon 
expiration of the term of the permit.
    (b) Application requirements and procedures. (1) You, the 
permittee, must file an application for renewal of a permit with the 
regulatory authority at least 120 days before expiration of the 
existing permit term.
    (2) You must file the application for renewal in the form required 
by the regulatory authority. At a minimum, your application must 
include the following information--
    (i) Your name and address.
    (ii) The term of the renewal requested.
    (iii) The permit number or other identifier.
    (iv) Evidence that a liability insurance policy for the operation 
will continue in full force and effect during the proposed renewal term 
or that you will have adequate self-insurance under Sec.  800.60 of 
this chapter for the proposed term of renewal.
    (v) Evidence that the performance bond for the permit will continue 
in full force and effect for the proposed term of renewal.
    (vi) A copy of the newspaper notice and proof of publication, as 
required by Sec.  778.21 of this chapter.
    (vii) Additional revised or updated information required by the 
regulatory authority.
    (3) Applications for renewal are subject to the public notification 
and public participation requirements in Sec. Sec.  773.6 and 773.19(b) 
of this chapter.
    (4) If an application for renewal includes any proposed revisions 
to the permit, those revisions must be identified and processed in 
accordance with Sec.  774.13 of this part.
    (c) Approval process--(1) Criteria for approval. The regulatory 
authority must approve a complete and accurate application for permit 
renewal, unless it finds, in writing that--
    (i) The terms and conditions of the existing permit are not being 
satisfactorily met.
    (ii) The present surface coal mining and reclamation operations are 
not in compliance with the environmental protection standards of the 
Act and the regulatory program. The permit eligibility standards in 
Sec. Sec.  773.12 through 773.14 of this chapter apply to this 
determination.
    (iii) The requested renewal substantially jeopardizes your 
continuing ability to comply with the Act and the regulatory program on 
existing permit areas.
    (iv) You have not provided evidence of having continuing liability 
insurance or self-insurance coverage as required under Sec.  800.60 of 
this chapter.
    (v) You have not provided evidence that any performance bond 
required to be in effect for the operation will continue in full force 
and effect for the proposed term of renewal.
    (vi) You have not posted any additional bond required by the 
regulatory authority under part 800 of this chapter.
    (vii) You have not provided any additional revised or updated 
information required by the regulatory authority.
    (2) Burden of proof. In the determination of whether to approve or 
deny an application for renewal of a permit, the burden of proof is on 
the opponents of renewal.
    (3) Alluvial valley floor variance. Areas previously identified in 
the reclamation plan for the original permit as exempt from the 
standards in paragraphs (A) and (B) of section 510(b)(5) of the Act and 
the requirements of paragraphs (c) through (e) of Sec.  785.19 of this 
chapter will retain their exempt status for the term of the renewal.
    (d) Renewal term. The term for any permit renewal must not exceed 
the original permit term under Sec.  773.19(c) of this chapter.
    (e) Notice of decision. The regulatory authority must send copies 
of its decision to the applicant, to each person who filed comments or 
objections on the renewal, to each party to any informal conference 
held on the permit renewal, and to OSMRE if OSMRE is not the regulatory 
authority.
    (f) Administrative and judicial review. Any person having an 
interest which is or may be adversely affected by the decision of the 
regulatory authority has the right to administrative and judicial 
review under part 775 of this chapter.

PART 777--GENERAL CONTENT REQUIREMENTS FOR PERMIT APPLICATIONS

0
17. Revise the authority citation for part 777 to read as follows:

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


0
18. Revise Sec.  777.1 to read as follows:


Sec.  777.1  What does this part cover?

    This part provides minimum requirements concerning data collection 
and analysis and the format and general content of permit applications 
under a regulatory program.

[[Page 93327]]


0
19. Revise Sec.  777.11 to read as follows:


Sec.  777.11  What are the format and content requirements for permit 
applications?

    (a) An application must--
    (1) Contain current information, as required by this subchapter.
    (2) Be clear and concise.
    (3) Be filed in the format prescribed by the regulatory authority.
    (b) If used in the application, referenced materials must either be 
provided to the regulatory authority by the applicant or be readily 
available to the regulatory authority. If provided, relevant portions 
of referenced published materials must be presented briefly and 
concisely in the application by photocopying or abstracting and with 
explicit citations.
    (c) Applications for permits; revisions; renewals; or transfers, 
sales or assignments of permit rights must be verified under oath, by a 
responsible official of the applicant, that the information contained 
in the application is true and correct to the best of the official's 
information and belief.

0
20. Revise Sec.  777.13 to read as follows:


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

    (a) Technical data and analyses. (1) All technical data submitted 
in the application must be accompanied by metadata, including, but not 
limited to, the names of persons or organizations that collected and 
analyzed the data, the dates that the data were collected and analyzed, 
descriptions of the methodology used to collect and analyze the data, 
the quality assurance and quality control procedures used by the 
laboratory and the results of those procedures, and the field sampling 
sheets for each surface-water sample collected and for each groundwater 
sample collected from wells, seeps, and springs. For electronic data, 
metadata must include identification of any data transformations.
    (2) Technical analyses must be planned by or under the direction of 
a professional qualified in the subject to be analyzed.
    (b) Sampling and analyses of groundwater and surface water. All 
sampling and analyses of groundwater and surface water performed to 
meet the requirements of this subchapter must be conducted according 
to--
    (1) The methodology in 40 CFR parts 136 and 434, to the extent 
applicable; or
    (2) A scientifically defensible methodology acceptable to the 
regulatory authority, in coordination with any agency responsible for 
administering or implementing a program under the Clean Water Act, 33 
U.S.C. 1251 et seq., that requires water sampling and analysis.
    (c) Geological sampling and analysis. All geological sampling and 
analyses performed to meet the requirements of this subchapter must be 
conducted using a scientifically defensible methodology.
    (d) Use of models. (1) Unless the regulatory authority specifies 
otherwise, you may use modeling techniques, interpolation, or 
statistical techniques to prepare the permit application.
    (2) You must use actual site-specific data to calibrate each model. 
All models must be validated for the region and ecosystem in which they 
will be used.
    (3) The regulatory authority may either disallow the use of models 
or require that you submit additional actual, site-specific data.

0
21. Revise Sec.  777.14 to read as follows:


Sec.  777.14  What general requirements apply to maps and plans?

    (a)(1) Maps submitted with applications must be presented in a 
consolidated format, to the extent possible, and must include all the 
types of information that are set forth on topographic maps of the U.S. 
Geological Survey of the 1:24,000 scale series.
    (2) Maps of the proposed permit area must be at a scale of 1:6,000 
or larger.
    (3) Maps of the adjacent area must clearly show the lands and 
waters within that area and must be at a scale determined by the 
regulatory authority, but in no event smaller than 1:24,000.
    (b) When applicable, maps must clearly show those portions of the 
operation where surface coal mining operations occurred--
    (1) Prior to August 3, 1977.
    (2) After August 3, 1977, but prior to either--
    (i) May 3, 1978; or
    (ii) January 1, 1979, if an applicant or operator obtained a small 
operator's exemption in accordance with Sec.  710.12 of this chapter.
    (3) After May 3, 1978 (or January 1, 1979, for persons who received 
a small operator's exemption in accordance with Sec.  710.12 of this 
chapter) and prior to the approval of the applicable regulatory 
program.

0
22. Revise Sec.  777.15 to read as follows:


Sec.  777.15  What information must my application include to be 
administratively complete?

    An administratively complete application for a permit to conduct 
surface coal mining operations and must include at a minimum--
    (a) For surface mining activities, the information required under 
parts 778, 779, and 780 of this chapter, and, as applicable to the 
operation, part 785 of this chapter.
    (b) For underground mining activities, the information required 
under parts 778, 783, and 784 of this chapter, and, as applicable to 
the operation, part 785 of this chapter.

0
23. Lift the suspension of Sec.  779.21 and revise part 779 to read as 
follows:

PART 779--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS 
FOR INFORMATION ON ENVIRONMENTAL RESOURCES AND CONDITIONS

Sec.
779.1 What does this part do?
779.2 What is the objective of this part?
779.4 What responsibilities do I and government agencies have under 
this part?
779.10 Information collection.
779.11 [Reserved]
779.12 [Reserved]
779.17 What information on cultural, historic, and archeological 
resources must I include in my permit application?
779.18 What information on climate must I include in my permit 
application?
779.19 What information on vegetation must I include in my permit 
application?
779.20 What information on fish and wildlife resources must I 
include in my permit application?
779.21 What information on soils must I include in my permit 
application?
779.22 What information on land use and productivity must I include 
in my permit application?
779.24 What maps, plans, and cross-sections must I submit with my 
permit application?
779.25 [Reserved]

    Authority: 30 U.S.C. 1201 et seq. and 54 U.S.C. 300101 et seq.


Sec.  779.1  What does this part do?

    This part establishes the minimum requirements for the descriptions 
of environmental resources and conditions that you must include in an 
application for a permit to conduct surface mining activities.


Sec.  779.2  What is the objective of this part?

    The objective of this part is to ensure that you, the permit 
applicant, provide the regulatory authority with a complete and 
accurate description of the environmental resources that may be 
impacted or affected by proposed surface mining activities and the 
environmental conditions that exist within the proposed permit and 
adjacent areas.


Sec.  779.4  What responsibilities do I and government agencies have 
under this part?

    (a) You, the permit applicant, must provide all information 
required by this

[[Page 93328]]

part in your application, except when this part specifically exempts 
you from doing so.
    (b) State and federal government agencies are responsible for 
providing information for permit applications to the extent that this 
part specifically requires that they do so.


Sec.  779.10  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 it control number 1029-0035. The information 
is being collected to meet the requirements of sections 507 and 508 of 
SMCRA, which require that each permit application include a description 
of the premining environmental resources within and around the proposed 
permit area. The regulatory authority uses this information as a 
baseline for evaluating the impacts of mining. You, the permit 
applicant, 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. Send comments regarding burden estimates or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to the Office of Surface Mining Reclamation and 
Enforcement, Information Collection Clearance Officer, Room 203-SIB, 
1951 Constitution Avenue NW., Washington, DC 20240.


Sec.  779.11  [Reserved]


Sec.  779.12  [Reserved]


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

    (a) Your permit application must describe the nature of cultural, 
historic, and archeological resources listed or eligible for listing on 
the National Register of Historic Places and known archeological sites 
within the proposed permit and adjacent areas. The description must be 
based on all available information, including, but not limited to, 
information from the State Historic Preservation Officer and from local 
archeological, historical, and cultural preservation agencies.
    (b) The regulatory authority may require you, the applicant, to 
identify and evaluate important historic and archeological resources 
that may be eligible for listing on the National Register of Historic 
Places by--
    (1) Collecting additional information;
    (2) Conducting field investigations, or
    (3) Completing other appropriate analyses.


Sec.  779.18  What information on climate must I include in my permit 
application?

    The regulatory authority may require that your permit application 
contain a statement of the climatic factors that are representative of 
the proposed permit area, including:
    (a) The average seasonal precipitation.
    (b) The average direction and velocity of prevailing winds.
    (c) Seasonal temperature ranges.
    (d) Additional data that the regulatory authority deems necessary 
to ensure compliance with the requirements of this subchapter.


Sec.  779.19  What information on vegetation must I include in my 
permit application?

    (a) You must identify, describe, and map existing vegetation types 
and plant communities within the proposed permit area. If you propose 
to use reference areas for purposes of determining revegetation success 
under Sec.  816.116 of this chapter, you also must identify, describe, 
and map existing vegetation types and plant communities within any 
proposed reference areas.
    (b) The description and map required under paragraph (a) of this 
section must--
    (1) Be in sufficient detail to assist in preparation of the 
revegetation plan under Sec.  780.12(g) of this chapter and provide a 
baseline for comparison with postmining vegetation;
    (2) Be adequate to evaluate whether the vegetation provides 
important habitat for fish and wildlife and whether the proposed permit 
area contains native plant communities of local or regional 
significance;
    (3) Identify areas with significant populations of non-native 
invasive or noxious species; and
    (4) Delineate all wetlands and all areas bordering streams that 
either support or are capable of supporting hydrophytic or hydrophilic 
vegetation or vegetation typical of floodplains.
    (c) If the vegetation on the proposed permit area has been altered 
by human activity, you must describe the native vegetation and plant 
communities typical of that area in the absence of human alterations.


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

    (a) General requirements. Your permit application must include 
information on fish and wildlife resources for the proposed permit and 
adjacent areas, including all species of fish, wildlife, plants, and 
other life forms listed or proposed for listing under the Endangered 
Species Act of 1973, 30 U.S.C. 1531 et seq. The adjacent area must 
include all lands and waters likely to be affected by the proposed 
operation.
    (b) Scope and level of detail. The regulatory authority will 
determine the scope and level of detail for this information in 
coordination with state and federal agencies with responsibilities for 
fish and wildlife. The scope and level of detail must be sufficient to 
design the protection and enhancement plan required under Sec.  780.16 
of this chapter.
    (c) Site-specific resource information requirements. Your 
application must include site-specific resource information if the 
proposed permit area or the adjacent area contains or is likely to 
contain one or more of the following--
    (1) Species listed or proposed for listing as threatened or 
endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq., or designated or proposed critical habitat under that law. When 
these circumstances exist, the site-specific resource information must 
include a description of the effects of future non-federal activities 
that are reasonably certain to occur within the proposed permit and 
adjacent areas.
    (2) Species or habitat protected by state or tribal endangered 
species statutes and regulations.
    (3) Habitat of unusually high value for fish and wildlife, which 
may include wetlands, riparian areas, cliffs that provide nesting sites 
for raptors, significant migration corridors, specialized reproduction 
or wintering areas, areas offering special shelter or protection, and 
areas that support populations of endemic species that are vulnerable 
because of restricted ranges, limited mobility, limited reproductive 
capacity, or specialized habitat requirements.
    (4) Other species or habitat identified through interagency 
coordination as requiring special protection under state, tribal, or 
federal law, including species identified as sensitive by a state, 
tribal, or federal agency.
    (5) Perennial or intermittent streams.
    (6) Native plant communities of local or regional ecological 
significance.


Sec.  779.21  What information on soils must I include in my permit 
application?

    Your permit application must include--
    (a) The results of a reconnaissance inspection to determine whether 
the proposed permit area may contain prime farmland historically used 
for

[[Page 93329]]

cropland, as required by Sec.  785.17(b)(1) of this chapter.
    (b)(1) A map showing the soil mapping units located within the 
proposed permit area, if the National Cooperative Soil Survey has 
completed and published a soil survey of the area.
    (2) The applicable soil survey information that the Natural 
Resources Conservation Service maintains for the soil mapping units 
identified in paragraph (b)(1) of this section. You may provide this 
information either in paper form or via a link to the appropriate 
element of the Natural Resources Conservation Service's soil survey Web 
site.
    (c) A description of soil depths within the proposed permit area.
    (d) Detailed information on soil quality, if you seek approval for 
the use of soil substitutes or supplements under Sec.  780.12(e) of 
this chapter.
    (e) The soil survey information required by Sec.  785.17(b)(3) of 
this chapter if the reconnaissance inspection conducted under paragraph 
(a) of this section indicates that prime farmland historically used for 
cropland may be present.
    (f) Any other information on soils that the regulatory authority 
finds necessary to determine land use capability.


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

    Your permit application must contain a statement of the condition, 
capability, and productivity of the land within the proposed permit 
area, including--
    (a)(1) A map and narrative identifying and describing the land use 
or uses in existence at the time of the filing of the application.
    (2) A description of the historical uses of the land to the extent 
that this information is readily available or can be inferred from the 
uses of other lands in the vicinity.
    (3) For any previously mined area within the proposed permit area, 
a description of the land uses in existence before any mining, to the 
extent that such information is available.
    (b) A narrative analysis of--
    (1) The capability of the land before any mining to support a 
variety of uses, giving consideration to soil and foundation 
characteristics, topography, vegetative cover, and the hydrology of the 
proposed permit area; and
    (2) The productivity of the proposed permit area before mining, 
expressed as average yield of food, fiber, forage, or wood products 
obtained under high levels of management, as determined by--
    (i) Actual yield data; or
    (ii) Yield estimates for similar sites based on current data from 
the U.S. Department of Agriculture, state agricultural universities, or 
appropriate state natural resources or agricultural agencies.
    (c) Any additional information that the regulatory authority deems 
necessary to determine the condition, capability, and productivity of 
the land within the proposed permit area.


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

    (a) In addition to the maps, plans, and information required by 
other sections of this part, your permit application must include maps 
and, when appropriate, plans and cross-sections showing--
    (1) All boundaries of lands and names of present owners of record 
of those lands, both surface and subsurface, included in or contiguous 
to the proposed permit area.
    (2) The boundaries of land within the proposed permit area upon 
which you have the legal right to enter and begin surface mining 
activities.
    (3) The boundaries of all areas that you anticipate affecting over 
the estimated total life of the surface mining activities, with a 
description of the size, sequence, and timing of the mining of subareas 
for which you anticipate seeking additional permits or expansion of an 
existing permit in the future.
    (4) The location and current use of all buildings on the proposed 
permit area or within 1,000 feet of the proposed permit area.
    (5) The location of surface and subsurface manmade features within, 
passing through, or passing over the proposed permit area, including, 
but not limited to, highways, electric transmission lines, pipelines, 
constructed drainageways, irrigation ditches, and agricultural drainage 
tile fields.
    (6) The location and boundaries of any proposed reference areas for 
determining the success of revegetation.
    (7) The location and ownership of existing wells, springs, and 
other groundwater resources within the proposed permit and adjacent 
areas. You may provide ownership information in a table cross-
referenced to a map if approved by the regulatory authority.
    (8) The location and depth (if available) of each water well within 
the proposed permit and adjacent areas. You may provide information 
concerning depth in a table cross-referenced to a map if approved by 
the regulatory authority.
    (9) The name, location, ownership, and description of all surface-
water bodies and features, such as perennial, intermittent, and 
ephemeral streams; ponds, lakes, and other impoundments; wetlands; and 
natural drainageways, within the proposed permit and adjacent areas. To 
the extent appropriate, you may provide this information in a table 
cross-referenced to a map if approved by the regulatory authority.
    (10) The locations of water supply intakes for current users of 
surface water flowing into, from, and within a hydrologic area defined 
by the regulatory authority.
    (11) The location of any public water supplies and the extent of 
any associated wellhead protection zones located within one-half mile, 
measured horizontally, of the proposed permit area. Both you and the 
regulatory authority must keep this information confidential when 
required by state law or when otherwise necessary for safety and 
security purposes and protection of the integrity of public water 
supplies.
    (12) The location of all existing and proposed discharges to any 
surface-water body within the proposed permit and adjacent areas.
    (13) The location of any discharge into or from an active, 
inactive, or abandoned surface or underground mine, including, but not 
limited to, a mine-water treatment or pumping facility, that is 
hydrologically connected to the site of the proposed operation or that 
is located within one-half mile, measured horizontally, of the proposed 
permit area.
    (14) Each public road located in or within 100 feet of the proposed 
permit area.
    (15) The boundaries of any public park and locations of any 
cultural or historical resources listed or eligible for listing in the 
National Register of Historic Places and known archeological sites 
within the permit and adjacent areas.
    (16) Each cemetery that is located in or within 100 feet of the 
proposed permit area.
    (17) Any land within the proposed permit area which is within the 
boundaries of any units of the National System of Trails or the Wild 
and Scenic Rivers System, including study rivers designated under 
section 5(a) of the Wild and Scenic Rivers Act.
    (18) The elevations, locations, and geographic coordinates of test 
borings and core samplings. You may provide this information in a table 
cross-referenced to a map if approved by the regulatory authority.

[[Page 93330]]

    (19) The location and extent of any subsurface water encountered 
within the proposed permit and adjacent areas. This information must 
include, but is not limited to, the elevation of the water table, the 
areal and vertical distribution of aquifers, and maximum and minimum 
variations in hydraulic head in different aquifers. You must provide 
this information on appropriately-scaled cross-sections or maps, in a 
narrative, or a combination of these methods, whichever format best 
displays this information to the satisfaction of the regulatory 
authority.
    (20) The elevations, locations, and geographic coordinates of 
monitoring stations used to gather data on water quality and quantity 
and on fish and wildlife in preparation of the application. You may 
provide this information in a table cross-referenced to a map if 
approved by the regulatory authority.
    (21) The nature, depth, thickness, and commonly used names of the 
coal seams to be mined.
    (22) Any coal crop lines within the permit and adjacent areas and 
the strike and dip of the coal to be mined.
    (23) The location and extent of known workings of active, inactive, 
or abandoned underground mines within or underlying the proposed permit 
and adjacent areas.
    (24) Any underground mine openings to the surface within the 
proposed permit and adjacent areas.
    (25) The location and extent of existing or previously surface-
mined areas within the proposed permit area.
    (26) The location and dimensions of existing areas of spoil, coal 
mine waste, noncoal mine waste disposal sites, dams, embankments, other 
impoundments, and water treatment facilities within the proposed permit 
area.
    (27) The location and, if available, the depth of all gas and oil 
wells within the proposed permit and adjacent areas. You must identify 
the lateral extent of the well bores unless that information is 
confidential under state law. You may provide information concerning 
well depth in a table cross-referenced to a map if approved by the 
regulatory authority.
    (28) Other relevant information required by the regulatory 
authority.
    (b) Maps, plans, and cross-sections required by paragraph (a) of 
this section must be--
    (1) 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 
such maps, plans, and cross-sections, a qualified registered 
professional land surveyor, with assistance from experts in related 
fields such as landscape architecture.
    (2) Updated when required by the regulatory authority.
    (c) The regulatory authority may require that you submit the 
materials required by this section in a digital format that includes 
all necessary metadata.


Sec.  779.25  [Reserved]

0
24. Revise part 780 to read as follows:

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

Sec.
780.1 What does this part do?
780.2 What is the objective of this part?
780.4 What responsibilities do I and government agencies have under 
this part?
780.10 Information collection.
780.11 What must I include in the general description of my proposed 
operations?
780.12 What must the reclamation plan include?
780.13 What additional maps and plans must I include in the 
reclamation plan?
780.14 What requirements apply to the use of existing structures?
780.15 What plans for the use of explosives must I include in my 
application?
780.16 What must I include in the fish and wildlife protection and 
enhancement plan?
780.18 [Reserved]
780.19 What baseline information on hydrology, geology, and aquatic 
biology must I provide?
780.20 How must I prepare the determination of the probable 
hydrologic consequences of my proposed operation (PHC 
determination)?
780.21 What requirements apply to preparation and review of the 
cumulative hydrologic impact assessment (CHIA)?
780.22 What information must I include in the hydrologic reclamation 
plan and what information must I provide on alternative water 
sources?
780.23 What information must I include in plans for the monitoring 
of groundwater, surface water, and the biological condition of 
streams during and after mining?
780.24 What requirements apply to the postmining land use?
780.25 What information must I provide for siltation structures, 
impoundments, and refuse piles?
780.26 What special requirements apply to surface mining near 
underground mining?
780.27 What additional permitting requirements apply to activities 
in or through an ephemeral stream?
780.28 What additional permitting requirements apply to activities 
in, through, or adjacent to a perennial or intermittent stream?
780.29 What information must I include in the surface-water runoff 
control plan?
780.31 What information must I provide concerning the protection of 
publicly owned parks and historic places?
780.33 What information must I provide concerning the relocation or 
use of public roads?
780.35 What information must I provide concerning the minimization 
and disposal of excess spoil?
780.37 What information must I provide concerning access and haul 
roads?
780.38 What information must I provide concerning support 
facilities?

    Authority: 30 U.S.C. 1201 et seq. and 54 U.S.C. 300101 et seq.


Sec.  780.1  What does this part do?

    This part establishes the minimum requirements for the operation 
and reclamation plan portions of applications for a permit to conduct 
surface mining activities, except to the extent that part 785 of this 
subchapter establishes different requirements.


Sec.  780.2  What is the objective of this part?

    The objective of this part is to ensure that you, the permit 
applicant, provide the regulatory authority with comprehensive and 
reliable information on how you propose to conduct surface mining 
activities and reclaim the disturbed area in compliance with the Act, 
this chapter, and the regulatory program.


Sec.  780.4  What responsibilities do I and government agencies have 
under this part?

    (a) You, the permit applicant, must provide to the regulatory 
authority all information required by this part, except where 
specifically exempted in this part.
    (b) State and federal governmental agencies must provide 
information needed for permit applications to the extent that this part 
specifically requires that they do so.


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 it control 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. You, the permit applicant, must respond to

[[Page 93331]]

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. Send comments regarding 
burden estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 203-SIB, 1951 Constitution Avenue NW., Washington, DC 
20240.


Sec.  780.11  What must I include in the description of my proposed 
operations?

    Your application must contain a description of the mining 
operations that you propose to conduct during the life of the mine 
within the proposed permit area, including, at a minimum, the 
following:
    (a) A narrative description of the--
    (1) Type and method of coal mining procedures and proposed 
engineering techniques.
    (2) Anticipated annual and total number of tons of coal to be 
produced.
    (3) Major equipment to be used for all aspects of the proposed 
operations.
    (b) A narrative explaining the construction, modification, use, 
maintenance, and removal (unless you can satisfactorily explain why 
retention is necessary or appropriate for the postmining land use 
specified in the application under Sec.  780.24 of this part) of the 
following facilities:
    (1) Dams, embankments, and other impoundments.
    (2) Overburden and soil handling and storage areas and structures.
    (3) Coal removal, handling, storage, cleaning, and transportation 
areas and structures.
    (4) Spoil, coal processing waste, and noncoal mine waste removal, 
handling, storage, transportation, and disposal areas and structures.
    (5) Mine facilities.
    (6) Water pollution control facilities.


Sec.  780.12  What must the reclamation plan include?

    (a) General requirements. Your application must contain a plan for 
the reclamation of the lands to be disturbed within the proposed permit 
area. The plan must show how you will comply with the operation and 
reclamation requirements of the applicable regulatory program. At a 
minimum, the plan must include all information required under this part 
and part 785 of this chapter.
    (b) Reclamation timetable. The reclamation plan must contain a 
detailed timetable for the completion of each major step in the 
reclamation process including, but not limited to--
    (1) Backfilling.
    (2) Grading.
    (3) Establishment of the surface drainage pattern and stream-
channel configuration approved in the permit, including construction of 
appropriately-designed perennial, intermittent, and ephemeral stream 
channels to replace those removed by mining, to the extent and in the 
form required by Sec. Sec.  780.27, 780.28, 816.56, and 816.57 of this 
chapter.
    (4) Soil redistribution.
    (5) Planting of all vegetation in accordance with the revegetation 
plan approved in the permit, including establishment of streamside 
vegetative corridors along the banks of perennial, intermittent, and 
ephemeral streams when required by Sec. Sec.  816.56(c) and 816.57(d) 
of this chapter.
    (6) Demonstration of revegetation success.
    (7) Demonstration of restoration of the ecological function of all 
reconstructed perennial and intermittent stream segments.
    (8) Application for each phase of bond release under Sec.  800.42 
of this chapter.
    (c) Reclamation cost estimate. The reclamation plan must contain a 
detailed estimate of the cost of reclamation, including both direct and 
indirect costs, of those elements of the proposed operations that are 
required to be covered by a performance bond under part 800 of this 
chapter, with supporting calculations for the estimates. You must use 
current standardized construction cost estimation methods and equipment 
cost guides or up-to-date actual contracting costs incurred by the 
regulatory authority for similar activities to prepare this estimate.
    (d) Backfilling and grading plan. (1) The reclamation plan must 
contain a plan for backfilling the mined area, compacting the backfill, 
and grading the disturbed area, with contour maps, models, or cross-
sections that show in detail the anticipated final surface 
configuration of the proposed permit area, including drainage patterns, 
in accordance with Sec. Sec.  816.102 through 816.107 of this chapter, 
using the best technology currently available.
    (2) The backfilling and grading plan must describe in detail how 
you will conduct backfilling and related reclamation activities, 
including how you will--
    (i) Compact spoil to reduce infiltration to minimize leaching and 
discharges of parameters of concern.
    (ii) Limit compaction of topsoil and soil materials in the root 
zone to the minimum necessary to achieve stability. The plan also must 
identify measures that will be used to alleviate soil compaction if 
necessary.
    (iii) Handle acid-forming and toxic-forming materials, if present, 
to prevent the formation of acid or toxic drainage from acid-forming 
and toxic-forming materials within the overburden. The plan must be 
consistent with paragraph (n) of this section and Sec.  816.38 of this 
chapter.
    (e) Soil handling plan.--(1) General requirements. (i) The 
reclamation plan must include a plan and schedule for removal, storage, 
and redistribution of topsoil, subsoil, and other material to be used 
as a final growing medium in accordance with Sec.  816.22 of this 
chapter. It also must include a plan and schedule for removal, storage, 
and redistribution or other use of organic matter in accordance with 
Sec.  816.22(f) of this chapter.
    (ii) Except as provided in paragraphs (e)(1)(iii) and (iv) of this 
section, the plan submitted under paragraph (e)(1)(i) of this section 
must require that the B soil horizon, the C soil horizon, and other 
underlying strata, or portions of those soil horizons and strata, be 
removed separately, stockpiled if necessary, and redistributed to the 
extent and in the manner needed to achieve the optimal rooting depths 
required to restore premining land use capability and to comply with 
the revegetation requirements of Sec. Sec.  816.111 and 816.116 of this 
chapter.
    (iii) The plan submitted under paragraph (e)(1)(i) of this section 
need not require salvage of those soil horizons which you demonstrate, 
to the satisfaction of the regulatory authority, are inferior to other 
overburden materials as a plant growth medium, provided you comply with 
the soil substitute requirements of paragraph (e)(2) of this section.
    (iv) The plan submitted under paragraph (e)(1)(i) of this section 
may allow blending of the B soil horizon, the C soil horizon, and 
underlying strata, or portions thereof, to the extent that research or 
prior experience under similar conditions has demonstrated that 
blending will not adversely affect soil productivity.
    (v) The plan submitted under paragraph (e)(1)(i) of this section 
must explain how you will handle and, if necessary, store soil 
materials to avoid contamination by acid-forming or toxic-forming 
materials and to minimize deterioration of desirable soil 
characteristics.

[[Page 93332]]

    (2) Substitutes and supplements. (i) You must identify each soil 
horizon for which you propose to use appropriate overburden materials 
as either a supplement to or a substitute for the existing topsoil or 
subsoil on the proposed permit area. For each of those horizons, you 
must demonstrate, and the regulatory authority must find in writing, 
that--
    (A)(1) The quality of the existing topsoil and subsoil is inferior 
to that of the best overburden materials available; or
    (2) The quantity of the existing topsoil and subsoil is 
insufficient to provide an optimal rooting depth. In this case, the 
plan must require that all available existing topsoil and favorable 
subsoil, regardless of the amount, be removed, stored, and 
redistributed as part of the final growing medium unless the conditions 
described in paragraph (e)(2)(i)(A)(1) of this section also apply.
    (B) The use of the overburden materials that you have selected, in 
combination with or in place of the existing topsoil or subsoil, will 
result in a soil medium that is more suitable than the existing topsoil 
and subsoil to support and sustain vegetation consistent with the 
postmining land use and the revegetation plan under paragraph (g) of 
this section and that will provide a rooting depth that is superior to 
the existing topsoil and subsoil.
    (C) The overburden materials that you select for use as a soil 
substitute or supplement are the best materials available to support 
and sustain vegetation consistent with the postmining land use and the 
revegetation plan under paragraph (g) of this section.
    (ii) For purposes of paragraph (e)(2)(i) of this section, the 
regulatory authority will specify the--
    (A) Suitability criteria for substitutes and supplements.
    (B) Chemical and physical analyses, field trials, or greenhouse 
tests that you must conduct to make the demonstration required by 
paragraph (e)(2)(i) of this section.
    (C) Sampling objectives and techniques and the analytical 
techniques that you must use for purposes of paragraph (e)(2)(ii)(B) of 
this section.
    (iii) At a minimum, the demonstrations required by paragraph 
(e)(2)(i) of this section must include--
    (A) The physical and chemical soil characteristics and root zones 
needed to support and sustain the type of vegetation to be established 
on the reclaimed area.
    (B) A comparison and analysis of the thickness, total depth, 
texture, percent coarse fragments, pH, and areal extent of the 
different kinds of soil horizons and overburden materials available 
within the proposed permit area, based upon a statistically-valid 
sampling procedure.
    (iv) You must include a plan for testing and evaluating overburden 
materials during both removal and redistribution to ensure that only 
materials approved for use as soil substitutes or supplements are 
removed and redistributed.
    (f) Surface stabilization plan. The reclamation plan must contain a 
plan for stabilizing road surfaces, redistributed soil materials, and 
other exposed surface areas to effectively control erosion and air 
pollution attendant to erosion in accordance with Sec. Sec.  816.95, 
816.150, and 816.151 of this chapter.
    (g) Revegetation plan. (1) The reclamation plan must contain a plan 
for revegetation consistent with Sec. Sec.  816.111 through 816.116 of 
this chapter, including, but not limited to, descriptions of--
    (i) The schedule for revegetation of the area to be disturbed.
    (ii) The site preparation techniques that you plan to use, 
including the measures that you will take to avoid or, when avoidance 
is not possible, to minimize and alleviate compaction of the root zone 
during backfilling, grading, soil redistribution, and planting.
    (iii) What soil tests you will perform, together with a statement 
as to whether you will apply lime, fertilizer, or other amendments in 
response to those tests before planting or seeding.
    (iv) The species that you will plant to achieve temporary erosion 
control or, if you do not intend to establish a temporary vegetative 
cover, a description of other soil stabilization measures that you will 
implement in lieu of planting a temporary cover.
    (v) The species that you will plant and the seeding and stocking 
rates and planting arrangements that you will use to achieve or 
complement the postmining land use, enhance fish and wildlife habitat, 
and achieve the streamside vegetative corridor requirements of 
Sec. Sec.  816.56(c) and 816.57(d) of this chapter, when applicable.
    (A) Revegetation plans that involve the establishment of trees and 
shrubs must include site-specific planting prescriptions for canopy 
trees, understory trees and shrubs, and herbaceous ground cover 
compatible with establishment of trees and shrubs.
    (B) To the extent practicable and consistent with other 
revegetation and regulatory program requirements, the species mix must 
include native pollinator-friendly plants and the planting arrangements 
must promote the establishment of pollinator-friendly habitat.
    (vi) The planting and seeding techniques that you will use.
    (vii) Whether you will apply mulch and, if so, the type of mulch 
and the method of application.
    (viii) Whether you plan to conduct irrigation or apply fertilizer 
after the first growing season and, if so, to what extent and for what 
length of time.
    (ix) Any normal husbandry practices that you plan to use in 
accordance with Sec.  816.115(d) of this chapter.
    (x) The standards and evaluation techniques that you propose to use 
to determine the success of revegetation in accordance with Sec.  
816.116 of this chapter.
    (xi) The measures that you will take to avoid the establishment of 
invasive species on reclaimed areas or to control those species if they 
do become established.
    (2) Except as provided in paragraphs (g)(4) and (5) of this 
section, the species and planting rates and arrangements selected as 
part of the revegetation plan must be designed to create a diverse, 
effective, permanent vegetative cover that is consistent with the 
native plant communities and natural succession process described in 
the permit application in accordance with Sec.  779.19 of this chapter.
    (3) The species selected as part of the revegetation plan must--
    (i) Be native to the area. The regulatory authority may approve the 
use of introduced species as part of the permanent vegetative cover for 
the site only if--
    (A) The introduced species are both non-invasive and necessary to 
achieve the postmining land use;
    (B) Planting of native species would be inconsistent with the 
approved postmining land use; and
    (C) The approved postmining land use is implemented before the 
entire bond amount for the area has been fully released under 
Sec. Sec.  800.40 through 800.43 of this chapter.
    (ii) Be capable of stabilizing the soil surface from erosion to the 
extent that control of erosion with herbaceous ground cover is 
consistent with establishment of a permanent vegetative cover that 
resembles native plant communities in the area.
    (iii) Be compatible with the approved postmining land use.

[[Page 93333]]

    (iv) Have the same seasonal characteristics of growth, consistent 
with the appropriate stage of natural succession, as the native plant 
communities described in the permit application in accordance with 
Sec.  779.19 of this chapter.
    (v) Be capable of self-regeneration and natural succession.
    (vi) Be compatible with the plant and animal species of the area.
    (vii) Meet the requirements of applicable state and federal seed, 
noxious plant, and introduced species laws and regulations.
    (4) The regulatory authority may grant an exception to the 
requirements of paragraphs (g)(3)(i), (iv), and (v) of this section 
when necessary to achieve a quick-growing, temporary, stabilizing cover 
on disturbed and regraded areas, and the species selected to achieve 
this purpose will not impede the establishment of permanent vegetation.
    (5) The regulatory authority may grant an exception to the 
requirements of paragraphs (g)(2), (g)(3)(iv), and (g)(3)(v) of this 
section for those areas with a long-term, intensive, agricultural 
postmining land use.
    (6) A qualified, experienced biologist, soil scientist, forester, 
or agronomist must prepare or approve all revegetation plans.
    (h) Stream protection and reconstruction plan. The reclamation plan 
must describe how you will comply with the stream reconstruction 
requirements of Sec. Sec.  780.27 and 816.56 of this chapter for 
ephemeral streams and the stream protection, stream reconstruction, and 
functional restoration requirements of Sec. Sec.  780.28 and 816.57 of 
this chapter for perennial and intermittent streams.
    (i) Coal resource conservation plan. The reclamation plan must 
describe the measures that you will employ to maximize the use and 
conservation of the coal resource while using the best technology 
currently available to maintain environmental integrity, as required by 
Sec.  816.59 of this chapter.
    (j) Plan for disposal of noncoal waste materials. The reclamation 
plan must describe--
    (1) The type and quantity of noncoal waste materials that you 
anticipate disposing of within the proposed permit area.
    (2) How you intend to dispose of noncoal waste materials in 
accordance with Sec.  816.89 of this chapter.
    (3) The locations of any proposed noncoal waste material disposal 
sites within the proposed permit area.
    (4) The contingency plans that you have developed to preclude 
sustained combustion of combustible noncoal materials.
    (k) Management of mine openings, boreholes, and wells. The 
reclamation plan must contain a description, including appropriate 
cross-sections and maps, of the measures that you will use to seal or 
manage mine openings, and to plug, case or manage exploration holes, 
boreholes, wells and other openings within the proposed permit area, in 
accordance with Sec.  816.13 of this chapter.
    (l) Compliance with Clean Air Act and Clean Water Act. The 
reclamation plan must describe the steps that you have taken or will 
take 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 and health and 
safety standards.
    (m) Consistency with land use plans and surface owner plans. The 
reclamation plan must describe how the proposed operation is consistent 
with--
    (1) All applicable state and local land use plans and programs.
    (2) The plans of the surface landowner, to the extent that those 
plans are practicable and consistent with this chapter and with other 
applicable laws and regulations.
    (n) Handling of acid-forming and toxic-forming materials. (1) If 
the baseline geologic information collected under Sec.  780.19(e)(3) of 
this part indicates the presence of acid-forming or toxic-forming 
materials in any stratum above the lowest coal seam to be mined, you 
must develop a plan to prevent any adverse hydrologic impacts that may 
result from exposure and fracturing of that stratum during the mining 
process and demonstrate how you will handle the materials to protect 
groundwater and surface water. At a minimum the plan must--
    (i) Identify the anticipated postmining groundwater level for all 
locations within the mined-out area at which you propose to place acid-
forming or toxic-forming materials within the backfill.
    (ii) Explain how you will use one of the techniques in paragraphs 
(n)(1)(ii)(A) through (C) of this section when placing those materials 
in the backfill, as appropriate and as approved by the regulatory 
authority, to prevent the formation of acid or toxic mine drainage or 
other discharges that would require long-term treatment after mining 
has been completed:
    (A) Treat or otherwise neutralize acid-forming and toxic-forming 
materials to prevent the formation of acid or toxic mine drainage. This 
technique may include the blending of acid-forming materials with spoil 
of sufficient alkalinity to prevent the development of acid drainage.
    (B) Place acid-forming and toxic-forming materials in a location 
below the water table where they will remain fully saturated at all 
times, provided that you demonstrate, and the regulatory authority 
finds in writing in the permit, that complete saturation will prevent 
the formation of acid or toxic mine drainage.
    (C) Isolate acid-forming and toxic-forming materials by completely 
surrounding them with compacted material with a hydraulic conductivity 
at least two orders of magnitude lower than the hydraulic conductivity 
of the adjacent spoil.
    (2) The plan developed under paragraph (n)(1) of this section may 
allow the placement of acid-forming and toxic-forming materials in an 
excess spoil fill or a coal mine waste refuse pile, using one or more 
of the techniques identified in paragraphs (n)(1)(ii)(A) through (C) of 
this section.
    (3) If the baseline geologic information collected under Sec.  
780.19(e)(3) of this chapter indicates the presence of acid-forming or 
toxic-forming material in the stratum immediately below the lowest coal 
seam to be mined, you must identify the measures that you will take to 
prevent any adverse hydrologic impacts that might develop as a result 
of exposure of that stratum during the mining process.


Sec.  780.13  What additional maps and plans must I include in the 
reclamation plan?

    (a) In addition to the maps and plans required under Sec.  779.24 
and other provisions of this subchapter, your application must include 
maps, plans, and cross-sections of the proposed permit area showing--
    (1) The lands that you propose to affect throughout the life of the 
operation, including the sequence and timing of surface mining 
activities and the sequence and timing of backfilling, grading, and 
other reclamation activities on areas where the operation will disturb 
the land surface.
    (2) Each area of land for which a performance bond or equivalent 
guarantee will be posted under part 800 of this chapter.
    (3) Any change that the proposed operations will cause in a 
facility or feature identified under Sec.  779.24 of this chapter.
    (4) All buildings, utility corridors, and facilities to be used or 
constructed within the proposed permit area, with identification of 
those facilities that you propose to retain as part of the postmining 
land use.

[[Page 93334]]

    (5) Each coal storage, cleaning, processing, and loading area and 
facility.
    (6) Each temporary storage area for soil, spoil, coal mine waste, 
and noncoal mine waste.
    (7) Each water diversion, collection, conveyance, treatment, 
storage and discharge facility to be used, including the location of 
each point at which water will be discharged from the proposed permit 
area to a surface-water body and the name of that water body.
    (8) Each disposal facility for coal mine waste and noncoal mine 
waste materials.
    (9) Each feature and facility to be constructed to protect or 
enhance fish, wildlife, and related environmental values.
    (10) Each explosive storage and handling facility.
    (11) The location of each siltation structure, sedimentation pond, 
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 excess spoil fill for which plans are required 
under Sec.  780.35 of this part.
    (12) Each segment of a perennial or intermittent stream that you 
propose to mine through, bury, or divert.
    (13) Each location in which you propose to restore a perennial or 
intermittent stream or construct a temporary or permanent diversion of 
a perennial or intermittent stream.
    (14) Each streamside vegetative corridor that you propose to 
establish.
    (15) Each segment of a perennial or intermittent stream that you 
propose to enhance under the plan submitted in accordance with Sec.  
780.16 of this part.
    (16) The location and geographic coordinates of each monitoring 
point for groundwater and surface water.
    (17) The location and geographic coordinates of each point at which 
you propose to monitor the biological condition of perennial and 
intermittent streams.
    (b) Except as provided in Sec. Sec.  780.25(a)(2), 780.25(a)(3), 
780.35, 816.74(c), and 816.81(c) of this chapter, maps, plans, and 
cross-sections required under paragraphs (a)(5), (6), (7), (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 maps, plans, and cross-sections, a qualified 
registered professional land surveyor, with assistance from experts in 
related fields such as landscape architecture.
    (c) The regulatory authority may require that you submit the 
materials required by paragraph (a) of this section in a digital 
format.


Sec.  780.14  What requirements apply to the use of existing 
structures?

    (a) Each application must contain a description of every existing 
structure that you propose to use in connection with or to facilitate 
surface coal mining and reclamation operations. The description must 
include--
    (1) The location of the structure.
    (2) Plans of the structure.
    (3) A description of the current condition of the structure.
    (4) The approximate dates when the structure was originally built.
    (5) A showing, including relevant monitoring data or other 
evidence, of whether the structure meets the permanent program 
performance standards of subchapter K of this chapter or, if the 
structure does not meet the performance standards of subchapter K of 
this chapter, a showing of whether the structure meets the initial 
program performance standards of subchapter B of this chapter.
    (b) Each application must contain a compliance plan for every 
existing structure that you propose to modify or reconstruct for use in 
connection with or to facilitate surface coal mining and reclamation 
operations. The compliance plan must include--
    (1) Design specifications for the modification or reconstruction of 
the structure to meet the design and performance standards of 
subchapter K of this chapter.
    (2) A schedule for the initiation and completion of any 
modification or reconstruction under paragraph (b)(1) of this section.
    (3) Provisions for monitoring the structure during and after 
modification or reconstruction to ensure that the performance standards 
of subchapter K of this chapter are met.
    (4) A demonstration that there is no significant risk of harm to 
the environment or to public health or safety during modification or 
reconstruction of the structure.


Sec.  780.15  What plans for the use of explosives must I include in my 
application?

    (a) Blasting plan. Each application must contain a blasting plan 
for the proposed permit area, explaining how you will comply with the 
requirements of Sec. Sec.  816.61 through 816.68 of this chapter. This 
plan must include, at a minimum, information setting forth the 
limitations on ground vibration and airblast, the bases for those 
limitations, and the methods to be applied in controlling the adverse 
effects of blasting operations.
    (b) Monitoring system. Each application must contain a description 
of any system to be used to monitor compliance with the standards of 
Sec.  816.67 including the type, capability, and sensitivity of any 
blast-monitoring equipment and proposed procedures and locations of 
monitoring.
    (c) Blasting near underground mines. Blasting operations within 500 
feet of active underground mines require approval of the state and 
federal regulatory authorities concerned with the health and safety of 
underground miners.


Sec.  780.16  What must I include in the fish and wildlife protection 
and enhancement plan?

    (a) General requirements. Your application must include a fish and 
wildlife protection and enhancement plan that--
    (1) Is consistent with the requirements of Sec.  816.97 of this 
chapter.
    (2) Is specific to the resources identified under Sec.  779.20 of 
this chapter.
    (3) Complies with the requirements of paragraphs (b) through (f) of 
this section.
    (b) Requirements related to the Endangered Species Act of 1973. (1) 
Paragraphs (b)(2) and (3) of this section apply when the proposed 
operation may affect species listed or proposed for listing as 
threatened or endangered under the Endangered Species Act of 1973, 16 
U.S.C. 1531 et seq., or designated or proposed critical habitat under 
that law.
    (2) You must describe the steps that you have taken or will take to 
comply with the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., 
including any biological opinions developed under section 7 of that law 
and any species-specific habitat conservation plans developed in 
accordance with section 10 of that law.
    (3) The regulatory authority may not approve the permit application 
before there is a demonstration of compliance with the Endangered 
Species Act of 1973, 16 U.S.C. 1531 et seq., through one of the 
mechanisms listed in Sec.  773.15(j) of this chapter.
    (c) Protection of fish, wildlife, and related environmental values 
in general. You must describe how, to the extent possible using the 
best technology currently available, you will minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values. At 
a minimum, you must explain how you will--

[[Page 93335]]

    (1) Retain forest cover and other native vegetation as long as 
possible and time the removal of that vegetation to minimize adverse 
impacts on aquatic and terrestrial species.
    (2) Locate and design sedimentation ponds, utilities, support 
facilities, roads, rail spurs, and other transportation facilities to 
avoid or minimize adverse impacts on fish, wildlife, and related 
environmental values.
    (3) Except as provided under Sec.  780.12(g)(4) of this part, 
select non-invasive native species for revegetation that either promote 
or do not inhibit the long-term development of wildlife habitat.
    (4)(i) Avoid mining through wetlands or perennial or intermittent 
streams or disturbing riparian habitat adjacent to those streams. When 
avoidance is not possible, minimize--
    (A) The time during which mining and reclamation operations disrupt 
wetlands or streams or riparian habitat associated with streams;
    (B) The length of stream mined through; and
    (C) The amount of wetlands or riparian habitat disturbed by the 
operation.
    (ii) If you propose to mine through or discharge dredged or fill 
material into wetlands or streams that are subject to the jurisdiction 
of the Clean Water Act, 33 U.S.C. 1251 et seq., your application must 
identify the authorizations, certifications, and permits that you 
anticipate will be needed under the Clean Water Act and describe the 
steps that you have taken or will take to procure those authorizations, 
certifications, and permits. The regulatory authority will process your 
application and may issue the permit before you obtain all necessary 
authorizations, certifications, and permits 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. Issuance of a permit 
under subchapter G of this chapter does not authorize you to conduct 
any surface mining activity in or affecting waters subject to the 
jurisdiction of the Clean Water Act before you obtain any required 
Clean Water Act authorization, certification, or permit. Information 
submitted and analyses conducted under subchapter G of this chapter may 
inform the agency responsible for authorizations, certifications, and 
permits under the Clean Water Act, but they are not a substitute for 
the reviews, authorizations, certifications, and permits required under 
the Clean Water Act.
    (5) Implement other appropriate conservation practices such as, but 
not limited to, those identified in the technical guides published by 
the Natural Resources Conservation Service.
    (d) Enhancement measures.--(1) General requirements. (i) You must 
describe how, to the extent possible, you will use the best technology 
currently available to enhance fish, wildlife, and related 
environmental values both within and outside the area to be disturbed 
by mining activities, where practicable. Your application must identify 
the enhancement measures that you propose to implement and the lands 
upon which you propose to implement those measures. Those measures may 
include some or all the potential enhancement measures listed in 
paragraph (d)(2) of this section, but they are not limited to the 
measures listed in paragraph (d)(2) of this section.
    (ii) If your application includes no proposed enhancement measures 
under paragraph (d)(1)(i) of this section, you must explain, to the 
satisfaction of the regulatory authority, why implementation of 
enhancement measures is not practicable.
    (2) Potential enhancement measures. Potential enhancement measures 
include, but are not limited to--
    (i) Using the backfilling and grading process to create postmining 
surface features and configurations, such as functional wetlands, of 
high value to fish and wildlife.
    (ii) Designing and constructing permanent impoundments in a manner 
that will maximize their value to fish and wildlife.
    (iii) Creating rock piles and other permanent landscape features of 
value to raptors and other wildlife for nesting and shelter, to the 
extent that those features are consistent with features that existed on 
the site before any mining, the surrounding topography, and the 
approved postmining land use.
    (iv) Reestablishing native forests or other native plant 
communities, both within and outside the permit area. This may include 
restoring the native plant communities that existed before any mining, 
establishing native plant communities consistent with the native plant 
communities that are a part of the natural succession process, 
establishing native plant communities designed to restore or expand 
native pollinator populations and habitats, or establishing native 
plant communities that will support wildlife species of local, state, 
tribal, or national concern, including, but not limited to, species 
listed or proposed for listing as threatened or endangered on a state, 
tribal, or national level.
    (v) Establishing a vegetative corridor along the banks of streams 
where there is no such corridor before mining but where a vegetative 
corridor typically would exist under natural conditions. Species 
selected for planting within the corridor must be comprised of species 
native to the area, including native plants adapted to and suitable for 
planting in any floodplains or other riparian zones located within the 
corridor. Whenever possible, you should establish this corridor along 
both banks of the stream, preferably with a minimum corridor width of 
100 feet along each bank.
    (vi) Implementing conservation practices identified in 
publications, such as the technical guides published by the Natural 
Resources Conservation Service.
    (vii) Permanently fencing livestock away from perennial and 
intermittent streams and wetlands.
    (viii) Installing perches and nest boxes.
    (ix) Establishing conservation easements or deed restrictions, with 
an emphasis on preserving riparian vegetation and forested corridors 
along perennial and intermittent streams.
    (x) Providing funding to cover long-term operation and maintenance 
costs that watershed organizations incur in treating long-term 
postmining discharges from previous mining operations.
    (xi) Reclaiming previously mined areas located outside the area 
that you propose to disturb for coal extraction.
    (xii) Implementing measures to reduce or eliminate existing sources 
of surface-water or groundwater pollution.
    (3) Additional enhancement requirements for operations with 
anticipated long-term adverse impacts. (i) The exception in paragraph 
(d)(1)(ii) of this section does not apply if your proposed surface 
mining activities would result in the--
    (A) Temporary or permanent loss of mature native forest or other 
native plant communities that cannot be restored fully before final 
bond release under Sec. Sec.  800.40 through 800.43 of this chapter or
    (B) Permanent loss of wetlands or a segment of a perennial or 
intermittent stream.
    (ii) Whenever the conditions described in paragraph (d)(3)(i) of 
this section apply, the scope of the enhancement measures that you 
propose under paragraph (d)(1)(i) of this section must be commensurate 
with the magnitude of the long-term adverse impacts of the proposed 
operation.

[[Page 93336]]

Whenever possible, the measures must be permanent.
    (iii)(A) Enhancement measures proposed under paragraph (d)(3)(ii) 
of this section must be implemented within the watershed in which the 
proposed operation is located, unless opportunities for enhancement are 
not available within that watershed. In that case, you must propose to 
implement enhancement measures in the closest adjacent watershed in 
which enhancement opportunities exist, as approved by the regulatory 
authority.
    (B) Each regulatory program must prescribe the size of the 
watershed for purposes of paragraph (d)(3)(iii)(A) of this section, 
using a generally-accepted watershed classification system.
    (4) Inclusion within permit area. If the enhancement measures to be 
implemented under paragraphs (d)(1) through (d)(3) of this section 
would involve more than a de minimis disturbance of the surface of land 
outside the area to be mined, you must include the land to be disturbed 
by those measures within the proposed permit area.
    (e) Fish and Wildlife Service or National Marine Fisheries Service 
review. (1)(i) The regulatory authority must provide the protection and 
enhancement plan developed under this section and the resource 
information submitted under Sec.  779.20 of this chapter to the 
appropriate regional or field office of the U.S. Fish and Wildlife 
Service or the National Marine Fisheries Service, as applicable, 
whenever the resource information submitted under Sec.  779.20 of this 
chapter includes species listed as threatened or endangered under the 
Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., designated or 
proposed critical habitat under that law, or species proposed for 
listing as threatened or endangered under that law. The regulatory 
authority must provide the resource information and the protection and 
enhancement plan to the appropriate Service(s) no later than the time 
that it provides written notice of the permit application to 
governmental agencies under Sec.  773.6(a)(3)(ii) of this chapter.
    (ii)(A) When the resource information obtained under Sec.  779.20 
of this chapter does not include species listed as threatened or 
endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq., designated or proposed critical habitat under that law, or 
species proposed for listing as threatened or endangered under that 
law, the regulatory authority must provide the resource information and 
the protection and enhancement plan to the appropriate regional or 
field office of the U.S. Fish and Wildlife Service only if the Service 
requests an opportunity to review and comment on the resource 
information and the protection and enhancement plan.
    (B) The regulatory authority must provide the resource information 
and the protection and enhancement plan to the Service under paragraph 
(e)(1)(ii)(A) of this section within 10 days of receipt of a request 
from the Service to review the resource information and the protection 
and enhancement plan.
    (2) The regulatory authority must document the disposition of 
comments that it receives from the applicable Service(s) in response to 
the distribution made under paragraph (e)(1)(i) of this section to the 
extent that those comments pertain to species listed as threatened or 
endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq., to designated or proposed critical habitat under that law, or to 
species proposed for listing as threatened or endangered under that 
law.


Sec.  780.17  [Reserved]


Sec.  780.18  [Reserved]


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

    (a)(1) General requirements. Your permit application must include 
information on the hydrology, geology, and aquatic biology of the 
proposed permit area and the adjacent area in sufficient detail to 
assist in--
    (i) Determining the probable hydrologic consequences of the 
operation upon the quality and quantity of surface water and 
groundwater in the proposed permit and adjacent areas, as required 
under Sec.  780.20 of this part.
    (ii) Determining the nature and extent of both the hydrologic 
reclamation plan required under Sec.  780.22 of this part and the 
monitoring plans required under Sec.  780.23 of this part.
    (iii) Determining whether reclamation as required by this chapter 
can be accomplished.
    (iv) Preparing the cumulative hydrologic impact assessment under 
Sec.  780.21 of this part, including an evaluation of whether the 
proposed operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area.
    (2) Core baseline water-quality data requirements for surface water 
and groundwater. You must provide the following water-quality 
information for each groundwater and surface-water sample collected for 
baseline data purposes.

------------------------------------------------------------------------
          Parameter               Surface water          Groundwater
------------------------------------------------------------------------
pH..........................  Yes.................  Yes.
Specific conductance          Yes.................  Yes.
 corrected to 25[deg]C
 (conductivity).
Total dissolved solids......  Yes.................  Yes.
Total suspended solids......  Yes.................  No.
Hot acidity.................  Yes.................  Yes.
Total alkalinity............  Yes.................  Yes.
Major anions (dissolved),     Yes.................  Yes.
 including, at a minimum,
 bicarbonate, sulfate, and
 chloride.
Major anions (total),         Yes.................  No.
 including, at a minimum,
 bicarbonate, sulfate, and
 chloride.
Major cations (dissolved),    Yes.................  Yes.
 including, at a minimum,
 calcium, magnesium, sodium,
 and potassium.
Major cations (total),        Yes.................  No.
 including, at a minimum,
 calcium, magnesium, sodium,
 and potassium.
Cation-anion balance of       Yes.................  Yes.
 dissolved major cations and
 dissolved major anions.
Any cation or anion that      Yes.................  Yes.
 constitutes a significant
 percentage of the total
 ionic charge balance, but
 that was not included in
 the analyses of major
 anions and major cations.
Iron (dissolved)............  Yes.................  Yes.
Iron (total)................  Yes.................  No.
Manganese (dissolved).......  Yes.................  Yes.
Manganese (total)...........  Yes.................  No.
Selenium (dissolved)........  Yes.................  Yes.
Selenium (total)............  Yes.................  No.
Any other parameter           Yes.................  No.
 identified in any
 applicable National
 Pollutant Discharge
 Elimination System permit,
 if known at the time of
 application for the SMCRA
 permit.
Temperature.................  Yes.................  Yes.
------------------------------------------------------------------------


[[Page 93337]]

    (b) Groundwater information--(1) General requirements. Your permit 
application must include information sufficient to document seasonal 
variations in the quality, quantity, and usage of groundwater, 
including all surface discharges, within the proposed permit and 
adjacent areas.
    (2) Underground mine pools. If an underground mine pool is present 
within the proposed permit or adjacent areas, you must prepare an 
assessment of the characteristics of the mine pool, including seasonal 
changes in quality, quantity, and flow patterns, unless you 
demonstrate, and the regulatory authority finds, that the mine pool is 
not hydrologically connected to the proposed permit area. The 
determination of the probable hydrologic consequences of mining 
required under Sec.  780.20 of this part also must include a discussion 
of the effect of the proposed mining operation on any underground mine 
pools within the proposed permit and adjacent areas.
    (3) Monitoring wells. The regulatory authority must require the 
installation of properly-screened monitoring wells to document seasonal 
variations in the quality, quantity, and usage of groundwater.
    (4) Groundwater quality descriptions. Groundwater quality 
descriptions must include baseline information on the parameters 
identified in paragraph (a)(2) of this section and any additional 
parameters that the regulatory authority determines to be of local 
importance.
    (5) Groundwater quantity descriptions. At a minimum, groundwater 
quantity descriptions must include baseline data documenting seasonal 
variations in--
    (i) The areal extent and saturated thickness of all potentially-
impacted aquifers; and
    (ii) Approximate rates of groundwater discharge or usage and the 
elevation of the water table or potentiometric head in--
    (A) Each water-bearing coal seam to be mined.
    (B) Each aquifer above each coal seam to be mined.
    (C) Each potentially-impacted aquifer below the lowest coal seam to 
be mined.
    (6) Groundwater sampling requirements. (i) You must establish 
monitoring wells or equivalent monitoring points at a sufficient number 
of locations within the proposed permit and adjacent areas to determine 
groundwater quality, quantity, and movement in each aquifer above or 
immediately below the lowest coal seam to be mined. At a minimum, for 
each aquifer, you must locate monitoring points--
    (A) Upgradient and downgradient of the proposed permit area; and
    (B) Within the proposed permit area.
    (ii)(A) To document seasonal variations in groundwater quality and 
quantity, you must collect samples and take the measurements identified 
in paragraph (b)(5) of this section from each location identified in 
paragraph (b)(6)(i) of this section at approximately equally-spaced 
monthly intervals for a minimum of 12 consecutive months.
    (B) If approved by the regulatory authority, you may modify the 
interval or the 12-consecutive-month requirement specified in paragraph 
(b)(6)(ii)(A) of this section if adverse weather conditions make travel 
to a location specified in paragraph (b)(6)(i) of this section 
hazardous or if the water at that location is completely frozen.
    (C) In lieu of the frequency specified in paragraph (b)(6)(ii)(A) 
of this section, the regulatory authority may allow you to collect data 
quarterly for 2 years. The regulatory authority may initiate review of 
the permit application after collection and analysis of the first four 
quarterly groundwater samples, but it may not approve the application 
until after receipt and analysis of the final four quarterly 
groundwater samples.
    (D) You must analyze the samples collected in paragraph 
(b)(6)(ii)(A) of this section for the applicable water quality 
parameters identified in paragraph (a)(2) of this section and any other 
parameters specified by the regulatory authority.
    (iii) You must provide the Palmer Drought Severity Index for the 
proposed permit and adjacent areas for the initial baseline data 
collection period under paragraph (b)(6)(ii) of this section. The 
regulatory authority may extend the minimum data collection period 
specified in paragraph (b)(6)(ii) of this section whenever data 
available from the National Oceanic and Atmospheric Administration or 
similar databases indicate that the region in which the proposed 
operation is located experienced severe drought or abnormally high 
precipitation during the initial baseline data collection period.
    (c) Surface-water information.--(1) General requirements. Your 
permit application must include information sufficient to document 
seasonal variation in surface-water quality, quantity, and usage within 
the proposed permit and adjacent areas.
    (2) Surface-water quality descriptions. Surface-water quality 
descriptions must include baseline information on the parameters 
identified in paragraph (a)(2) of this section and any additional 
parameters that the regulatory authority determines to be of local 
importance.
    (3) Surface-water quantity descriptions. (i) At a minimum, surface-
water quantity descriptions for perennial and intermittent streams 
within the proposed permit and adjacent areas must include baseline 
data documenting--
    (A) Peak-flow magnitude and frequency.
    (B) Actual and anticipated usage.
    (C) Seasonal flow variations.
    (ii) All flow measurements under paragraph (c)(3)(i) of this 
section must be made using generally-accepted professional techniques 
approved by the regulatory authority. All techniques must be repeatable 
and must produce consistent results on successive measurements. Visual 
observations are not acceptable.
    (4) Surface-water sampling requirements. (i) You must establish 
monitoring points at a sufficient number of locations within the 
proposed permit and adjacent areas to determine the quality and 
quantity of water in perennial and intermittent streams within those 
areas. At a minimum, you must locate monitoring points upgradient and 
downgradient of the proposed permit area in each perennial and 
intermittent stream within the proposed permit and adjacent areas.
    (ii)(A) To document seasonal variations in surface-water quality 
and quantity, you must collect samples and take the measurements 
identified in paragraph (c)(3) of this section from each location 
identified in paragraph (c)(4)(i) of this section at approximately 
equally-spaced monthly intervals for a minimum of 12 consecutive 
months.
    (B) If approved by the regulatory authority, you may modify the 
interval or the 12-consecutive-month sampling requirement specified in 
paragraph (c)(4)(ii)(A) of this section if adverse weather conditions 
make travel to a location specified in paragraph (c)(4)(i) of this 
section hazardous or if the water at that location is completely 
frozen.
    (C) You must analyze the samples collected under paragraph 
(c)(4)(ii)(A) of this section for the applicable parameters identified 
in paragraph (a)(2) of this section and any other parameters specified 
by the regulatory authority.(iii) You must provide the Palmer Drought 
Severity Index for the proposed permit and adjacent areas for the 
initial baseline data collection period under paragraph (c)(4)(ii) of 
this section. The regulatory authority may extend the minimum data 
collection period specified in paragraphs (c)(4)(ii) and (iii) of this 
section whenever data available from the National Oceanic and

[[Page 93338]]

Atmospheric Administration or similar databases indicate that the 
region in which the proposed operation is located experienced severe 
drought or abnormally high precipitation during the initial baseline 
data collection period.
    (5) Precipitation measurements. (i) You must provide records of 
precipitation amounts for the proposed permit area, using on-site, 
self-recording devices.
    (ii) Precipitation records must be adequate to generate and 
calibrate a hydrologic model of the site. The regulatory authority will 
determine whether you must create such a model.
    (iii) At the discretion of the regulatory authority, you may use 
precipitation data from a single self-recording device to provide 
baseline data for multiple permits located close to each other.
    (6) Stream assessments. (i)(A) You must map and separately identify 
all perennial, intermittent, and ephemeral streams within the proposed 
permit area and all perennial and intermittent streams within the 
adjacent area.
    (B) The map must show the location of the channel head of each 
stream identified in paragraph (c)(6)(i)(A) of this section whenever 
the applicable area includes a terminal reach of the stream.
    (C) The map must show the location of transition points from 
ephemeral to intermittent and from intermittent to perennial (and vice 
versa, when applicable) for each stream identified in paragraph 
(c)(6)(i)(A) of this section whenever the applicable area includes such 
a transition point. If the U.S. Army Corps of Engineers has determined 
the location of a transition point, your application must be consistent 
with that determination.
    (ii)(A) For all perennial and intermittent streams within the 
proposed permit area, you must describe the baseline stream pattern, 
profile, and dimensions, with measurements of channel slope, sinuosity, 
water depth, alluvial groundwater depth, depth to bedrock, bankfull 
depth, bankfull width, width of the flood-prone area, and dominant in-
stream substrate at a scale and frequency adequate to characterize the 
entire length of the stream within the proposed permit area.
    (B) You must describe the general stream-channel configuration of 
ephemeral streams within the proposed permit area.
    (iii) For all perennial, intermittent, and ephemeral streams within 
the proposed permit area, you must describe the vegetation growing 
along the banks of each stream, including--
    (A) Identification of any hydrophytic vegetation located within or 
adjacent to the stream channel.
    (B) The extent to which streamside vegetation consists of trees and 
shrubs.
    (C) The percentage of channel canopy coverage.
    (D) A scientific calculation of the species diversity of the 
vegetation.
    (iv) You must identify all stream segments within the proposed 
permit and adjacent areas that appear on the list of impaired surface 
waters prepared under section 303(d) of the Clean Water Act, 33 U.S.C. 
1313(d). You must identify the parameters responsible for the impaired 
condition and the total maximum daily loads associated with those 
parameters, when applicable.
    (v) For all perennial, intermittent, and ephemeral streams within 
the proposed permit area and for all perennial and intermittent streams 
within the adjacent area, you must identify the extent of wetlands 
adjoining the stream and describe the quality of those wetlands.
    (vi) Except as provided in paragraph (g) of this section, you must 
provide an assessment of the biological condition of--
    (A) Each perennial stream within the proposed permit area.
    (B) Each perennial stream within the adjacent area that could be 
affected by the proposed operation.
    (C) Each intermittent stream within the proposed permit area, if a 
scientifically defensible protocol has been established for assessment 
of intermittent streams in the state or region in which the stream is 
located.
    (D) Each intermittent stream within the adjacent area that could be 
affected by the proposed operation, if a scientifically defensible 
protocol has been established for assessment of intermittent streams in 
the state or region in which the stream is located.
    (vii) When determining the biological condition of a stream under 
paragraph (c)(6)(vi) of this section, you must adhere to a 
bioassessment protocol approved by the state or tribal agency 
responsible for preparing the water quality inventory required under 
section 305(b) of the Clean Water Act, 33 U.S.C. 1315(b), or to other 
scientifically defensible bioassessment protocols accepted by agencies 
responsible for implementing the Clean Water Act, 33 U.S.C. 1251 et 
seq., modified as necessary to meet the following requirements. The 
protocol must--
    (A) Be based upon the measurement of an appropriate array of 
aquatic organisms, including, at a minimum, benthic macroinvertebrates, 
identified to the genus level where possible, otherwise to the lowest 
practical taxonomic level.
    (B) Result in the calculation of index values for both stream 
habitat and aquatic biota based on the reference condition.
    (C) Provide index values that correspond to the capability of the 
stream to support its designated aquatic life uses under section 303(c) 
of the Clean Water Act, 33 U.S.C. 1313(c).
    (D) Include a quantitative assessment of in-stream and riparian 
habitat condition.
    (E) Describe the technical elements of the bioassessment protocol, 
including but not limited to sampling methods, sampling gear, index 
period, sample processing and analysis, and quality assessment/quality 
control procedures.
    (viii) Except as provided in paragraph (g) of this section, you 
must describe the biology of each intermittent stream within the 
proposed permit area, and each intermittent stream within the adjacent 
area that could be affected by the proposed operation, whenever an 
assessment of the biological condition of those streams is not required 
under paragraph (c)(6)(vi) of this section. When obtaining the data 
needed to prepare this description, you must--
    (A) Sample each stream using a scientifically defensible sampling 
method or protocol established or endorsed by an agency responsible for 
implementing the Clean Water Act, 33 U.S.C. 1251 et seq.;
    (B) Identify benthic macroinvertebrates to the genus level where 
possible, otherwise to the lowest practical taxonomic level; and
    (C) Describe the technical elements of the sampling protocol, 
including but not limited to sampling methods, sampling gear, index 
period, sample processing and analysis, and quality assessment/quality 
control procedures.
    (d) Additional information for discharges from previous coal mining 
operations. If the proposed permit and adjacent areas contain any 
point-source discharges from previous surface or underground coal 
mining operations, you must sample those discharges during low-flow 
conditions of the receiving stream on a one-time basis. You must 
analyze the samples for the surface-water parameters identified in 
paragraph (a)(2) of this section and for both total and dissolved 
fractions of the following parameters--
    (1) Aluminum.
    (2) Arsenic.
    (3) Barium.
    (4) Beryllium.
    (5) Cadmium.
    (6) Copper.
    (7) Lead.

[[Page 93339]]

    (8) Mercury.
    (9) Nickel.
    (10) Silver.
    (11) Thallium.
    (12) Zinc.
    (e) Geologic information. (1) Your application must include a 
description of the geology of the proposed permit and adjacent areas 
down to and including the deeper of either the stratum immediately 
below the lowest coal seam to be mined or any aquifer below the lowest 
coal seam to be mined that may be adversely impacted by mining. The 
description must include--
    (i) The areal and structural geology of the proposed permit and 
adjacent areas.
    (ii) Other parameters that may influence the required reclamation.
    (iii) An explanation of how the areal and structural geology and 
other parameters affect the occurrence, availability, movement, 
quantity, and quality of potentially impacted surface water and 
groundwater.
    (2) The description required by paragraph (e)(1) of this section 
must be based on all of the following--
    (i) The cross-sections, maps, and plans required by Sec.  779.24 of 
this chapter.
    (ii) The information obtained under paragraphs (e)(3) and (4) of 
this section.
    (iii) Geologic literature and practices.
    (3) For any portion of the proposed permit area in which the strata 
down to the coal seam or seams to be mined will be removed or are 
already exposed, you must collect and analyze samples collected from 
test borings; drill cores; or fresh, unweathered, uncontaminated 
samples from rock outcrops, down to and including the deeper of either 
the stratum immediately below the lowest coal seam to be mined or any 
aquifer below the lowest seam to be mined that may be adversely 
impacted by mining. Your application must include the following data 
and analyses:
    (i) Logs showing the lithologic characteristics, including physical 
properties and thickness of each stratum, and the location of any 
groundwater encountered.
    (ii) Chemical analyses identifying those strata that may contain 
acid-forming materials, toxic-forming materials, or alkalinity-
producing materials and the extent to which each stratum contains those 
materials.
    (iii) Chemical analyses of all coal seams for acid-forming or 
toxic-forming materials, including, but not limited to, total sulfur 
and pyritic sulfur.
    (4) You must provide any additional geologic information and 
analyses that the regulatory authority determines to be necessary to 
protect the hydrologic balance or to meet the performance standards of 
this chapter.
    (5) You may request the regulatory authority to waive the 
requirements of paragraph (e)(3) of this section, in whole or in part. 
The regulatory authority may grant the waiver request only after 
finding in writing that the collection and analysis of such data is 
unnecessary because other representative information is available to 
the regulatory authority in a satisfactory form.
    (f) Cumulative impact area information. (1) You must obtain the 
hydrologic, geologic, and biological information necessary to assess 
the impacts of both the proposed operation and all anticipated mining 
on surface-water and groundwater systems in the cumulative impact area, 
as required by Sec.  780.21 of this part, from the appropriate federal 
or state agencies, to the extent that the information is available from 
those agencies.
    (2) If the information identified as necessary in paragraph (f)(1) 
of this section is not available from other federal or state agencies, 
you may gather and submit this information to the regulatory authority 
as part of the permit application. As an alternative to collecting new 
information, you may submit data and analyses from nearby mining 
operations if the site of those operations is representative of the 
proposed operations in terms of topography, hydrology, geology, 
geochemistry, and method of mining.
    (3) The regulatory authority may not approve the permit application 
until the information identified as necessary in paragraph (f)(1) of 
this section has been made available to the regulatory authority and 
the regulatory authority has used that information to prepare the 
cumulative hydrologic impact assessment required by Sec.  780.21 of 
this part.
    (g) Exception for operations that avoid streams. Upon your request, 
the regulatory authority may waive the biological information 
requirements of paragraphs (c)(6)(vi) through (viii) of this section if 
you demonstrate, and if the regulatory authority finds in writing, that 
your operation will not--
    (1) Mine through or bury a perennial or intermittent stream;
    (2) Create a point-source discharge to any perennial, intermittent, 
or ephemeral stream; or
    (3) Modify the base flow of any perennial or intermittent stream.
    (h) Coordination with Clean Water Act agencies. The regulatory 
authority will make best efforts to--
    (1) Consult in a timely manner with the agencies responsible for 
issuing permits, authorizations, and certifications under the Clean 
Water Act;
    (2) Minimize differences in baseline data collection points and 
parameters; and
    (3) Share data to the extent practicable and consistent with each 
agency's mission, statutory requirements, and implementing regulations.
    (i) Corroboration of baseline data. The regulatory authority must 
either corroborate a sample of the baseline information in your 
application or arrange for a third party to conduct the corroboration 
at your expense. Corroboration may include, but is not limited to, 
simultaneous sample collection and analysis, visual observation of 
sample collection, use of field measurements, or comparison of 
application data with application or monitoring data from adjacent 
operations.


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

    (a) Content of PHC determination. Your permit application must 
contain a determination of the probable hydrologic consequences of the 
proposed operation upon the quality and quantity of surface water and 
groundwater and, except as provided in Sec.  780.19(g) of this part, 
upon the biology of perennial and intermittent streams under seasonal 
flow conditions for the proposed permit and adjacent areas. You must 
base the PHC determination on an analysis of the baseline hydrologic, 
geologic, biological, and other information required under Sec.  780.19 
of this part. It must include findings on:
    (1) Whether the operation may cause material damage to the 
hydrologic balance outside the permit area.
    (2) Whether acid-forming or toxic-forming materials are present 
that could result in the contamination of surface water or groundwater, 
including, but not limited to, a discharge of toxic mine drainage after 
the completion of land reclamation.
    (3) Whether the proposed operation may result in contamination, 
diminution, or interruption of an underground or surface source of 
water within the proposed permit or adjacent areas that is used for a 
domestic, agricultural, industrial, or other legitimate purpose.
    (4) Whether the proposed operation will intercept aquifers in 
overburden strata or aquifers in underground mine voids (mine pools) or 
create aquifers in spoil placed in the backfilled area and, if so, what 
impacts the operation would

[[Page 93340]]

have on those aquifers, both during mining and after reclamation, and 
the effect of those impacts on the hydrologic balance.
    (5) What impact the proposed operation will have on:
    (i) Sediment yield and transport from the area to be disturbed.
    (ii) The quality of groundwater and surface water within the 
proposed permit and adjacent areas. At a minimum, unless otherwise 
specified, the finding must address the impacts of the operation on 
both groundwater and surface water in terms of the parameters listed in 
Sec.  780.19(a)(2) of this part and any additional water quality 
parameters that the regulatory authority determines to be of local 
importance.
    (iii) Flooding and precipitation runoff patterns and 
characteristics.
    (iv) Peak-flow magnitude and frequency for perennial and 
intermittent streams within the proposed permit and adjacent areas.
    (v) Seasonal variations in streamflow.
    (vi) The availability of groundwater and surface water, including 
the impact of any diversion of surface or subsurface flows to 
underground mine workings or any changes in watershed size as a result 
of the postmining surface configuration.
    (vii) The biology of perennial and intermittent streams within the 
proposed permit and adjacent areas, except as provided in Sec.  
780.19(g) of this part.
    (viii) Other characteristics as required by the regulatory 
authority.
    (b) Supplemental information. You must provide any supplemental 
information that the regulatory authority determines is needed to fully 
evaluate the probable hydrologic consequences of the proposed operation 
and to plan remedial and reclamation activities. This information may 
include, but is not limited to, additional drilling, geochemical 
analyses of overburden materials, aquifer tests, hydrogeologic analyses 
of the water-bearing strata, analyses of flood flows, or analyses of 
other characteristics of water quality or quantity, including the 
stability of underground mine pools that might be affected by the 
proposed operation.
    (c) Subsequent reviews of PHC determinations. (1) The regulatory 
authority must review each application for a permit revision to 
determine whether a new or updated PHC determination is needed.
    (2) The regulatory authority must require that you prepare a new or 
updated PHC determination if the review under paragraph (c)(1) of this 
section finds that one is needed.


Sec.  780.21  What requirements apply to preparation, use, and review 
of the cumulative hydrologic impact assessment (CHIA)?

    (a) General requirements. (1) The regulatory authority must prepare 
a written assessment of the probable cumulative hydrologic impacts of 
the proposed operation and all anticipated mining upon surface-water 
and groundwater systems in the cumulative impact area. This assessment, 
which is known as the CHIA, must be sufficient to determine, for 
purposes of permit application approval, whether the proposed operation 
has been designed to prevent material damage to the hydrologic balance 
outside the permit area.
    (2) In preparing the CHIA, the regulatory authority must consider 
relevant information on file for other mining operations located within 
the cumulative impact area or in similar watersheds.
    (3) As provided in Sec.  780.19(f) of this part, the regulatory 
authority may not approve a permit application until the hydrologic, 
geologic, and biological information needed to prepare the CHIA has 
been made available to the regulatory authority and the regulatory 
authority has used that information to prepare the CHIA.
    (b) Contents. The CHIA must include--
    (1) A map of the cumulative impact area. At a minimum, the map must 
identify and display--
    (i) Any difference in the boundaries of the cumulative impact area 
for groundwater and surface water.
    (ii) The locations of all previous, current, and anticipated 
surface and underground mining.
    (iii) The locations of all baseline data collection sites within 
the proposed permit and adjacent areas under Sec.  780.19 of this part.
    (iv) Designated uses of surface water under section 303(c) of the 
Clean Water Act, 33 U.S.C. 1313(c).
    (2) A description of all previous, existing, and anticipated 
surface and underground coal mining within the cumulative impact area, 
including, at a minimum, the coal seam or seams mined or to be mined, 
the extent of mining, and the reclamation status of each operation.
    (3) A quantitative and qualitative description of baseline 
hydrologic information for the proposed permit and adjacent areas under 
Sec.  780.19 of this part, including--
    (i) The quality and quantity of surface water and groundwater and 
seasonal variations therein.
    (ii) The quality and quantity of water needed to support, maintain, 
or attain each--
    (A) Designated use of surface water under section 303(c) of the 
Clean Water Act, 33 U.S.C. 1313(c), or, if there are no designated 
uses, each premining use of surface water.
    (B) Premining use of groundwater.
    (iii) A description and/or maps of the local and regional 
groundwater systems.
    (iv) To the extent required by Sec.  780.19(c)(6)(vi) of this part, 
the biological condition of perennial and intermittent streams and, to 
the extent required by Sec.  780.19(c)(6)(viii) of this part, the 
biology of intermittent streams not included within Sec.  
780.19(c)(6)(vi) of this part.
    (4) A discussion of any potential concerns identified in the PHC 
determination required under Sec.  780.20 of this part and how those 
concerns have been or will be resolved.
    (5) A qualitative and quantitative assessment of how all 
anticipated surface and underground mining may impact the quality of 
surface water and groundwater in the cumulative impact area, expressed 
in terms of each baseline parameter identified under Sec.  780.19 of 
this part.
    (6) Site-specific numeric or narrative thresholds for material 
damage to the hydrologic balance outside the permit area. These 
thresholds must also be included as a condition of the permit. When 
identifying thresholds to define when material damage to the hydrologic 
balance outside the permit area would occur in connection with a 
particular permit, the regulatory authority will--
    (i) In consultation with the Clean Water Act authority, as 
appropriate, undertake a comprehensive evaluation that considers the 
following factors--
    (A) The baseline data collected under Sec.  780.19 of this part;
    (B) The PHC determination prepared under Sec.  780.20 of this part;
    (C) Applicable water quality standards adopted under the authority 
of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c);
    (D) Applicable state or tribal standards for surface water or 
groundwater;
    (E) Ambient water quality criteria developed under section 304(a) 
of the Clean Water Act, 33 U.S.C. 1314(a);
    (F) The biological requirements of any species listed as threatened 
or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 
et seq., when those species; designated critical habitat for those 
species; habitat occupied by those species, such as nesting, resting, 
feeding, and breeding areas; and any areas in which those

[[Page 93341]]

species are present only for a short time, but that are important to 
their persistence, such as migration and dispersal corridors, are 
present within the cumulative impact area; and
    (G) Other pertinent information and considerations to identify the 
parameters for which thresholds are necessary.
    (ii) In consultation with the Clean Water Act authority, adopt 
numeric thresholds as appropriate, taking into consideration relevant 
contaminants for which there are water quality criteria under the Clean 
Water Act, 33 U.S.C. 1251 et seq. The regulatory authority may not 
adopt a narrative threshold for parameters for which numeric water 
quality criteria exist under the Clean Water Act, 33 U.S.C. 1251 et 
seq.
    (iii) Identify the portion of the cumulative impact area to which 
each threshold applies. Parameters and thresholds may vary from subarea 
to subarea within the cumulative impact area when appropriate, based 
upon differences in watershed characteristics and variations in the 
geology, hydrology, and biology of the cumulative impact area.
    (iv) Identify the points within the cumulative impact area at which 
the permittee will monitor the impacts of the operation on surface 
water and groundwater outside the permit area and explain how those 
locations will facilitate timely detection of the impacts of the 
operation on surface water and groundwater outside the permit area in a 
scientifically defensible manner. The permit applicant must incorporate 
those monitoring locations into the surface water and groundwater 
monitoring plans submitted under Sec.  780.23 of this part.
    (7) Evaluation thresholds for critical water quality and quantity 
parameters, as determined by the regulatory authority. After permit 
issuance, if monitoring results at the locations designated under 
paragraph (b)(6)(iv) of this section document exceedance of an 
evaluation threshold, the regulatory authority, in consultation with 
the Clean Water Act authority, as appropriate, must determine the cause 
of the exceedance. If the mining operation is responsible for the 
exceedance and if the adverse trend is likely to continue in the 
absence of corrective action, the regulatory authority must issue a 
permit revision order under Sec.  774.10 of this chapter. The order 
must require that the permittee reassess the adequacy of the PHC 
determination prepared under Sec.  780.20 of this part and the 
hydrologic reclamation plan approved under Sec.  780.20 of this part 
and develop measures to prevent material damage to the hydrologic 
balance outside the permit area.
    (8) An assessment of how all anticipated surface and underground 
mining may affect groundwater movement and availability within the 
cumulative impact area.
    (9) After consultation with the Clean Water Act authority, as 
appropriate, an evaluation, with references to supporting data and 
analyses, of whether the CHIA will support a finding that the operation 
has been designed to prevent material damage to the hydrologic balance 
outside the permit area. To support this finding, the CHIA must include 
the following determinations, with appropriate documentation, or an 
explanation of why the determination is not necessary or appropriate:
    (i) Except as provided in Sec. Sec.  780.22(b) and 816.40 of this 
chapter, the proposed operation will not--
    (A) Cause or contribute to a violation of applicable water quality 
standards adopted under the authority of section 303(c) of the Clean 
Water Act, 33 U.S.C. 1313(c), or other applicable state or tribal water 
quality standards;
    (B) Cause or contribute to a violation of applicable state or 
tribal groundwater quality standards;
    (C) Preclude attainment of a premining use of a surface water 
located outside the permit area when no water quality standards have 
been established for that surface water; or
    (D) Preclude attainment of any premining use of groundwater located 
outside the permit area.
    (ii) The proposed operation has been designed to ensure that 
neither the mining operation nor the final configuration of the 
reclaimed area will result in changes in the size or frequency of peak 
flows from precipitation events or thaws that would cause an increase 
in flooding outside the permit area, when compared with premining 
conditions.
    (iii) Perennial and intermittent streams located outside the permit 
area will continue to have sufficient base flow at all times during and 
after mining and reclamation to maintain their premining flow regime; 
i.e., perennial streams located outside the permit area will retain 
perennial flows and intermittent streams located outside the permit 
area will retain intermittent flows both during and after mining and 
reclamation. Conversion of an intermittent stream to a perennial stream 
or conversion of an ephemeral stream to an intermittent or perennial 
stream outside the permit area may be acceptable, provided the 
conversion would be consistent with paragraph (b)(9)(i) of this section 
and would not result in a violation of the Endangered Species Act of 
1973, 16 U.S.C. 1531 et seq.
    (iv) The proposed operation has been designed to protect the 
quantity and quality of water in any aquifer that significantly ensures 
the prevailing hydrologic balance.
    (c) Subsequent reviews. (1) The regulatory authority must review 
each application for a significant permit revision to determine whether 
a new or updated CHIA is needed. The regulatory authority must document 
the review, including the analysis and conclusions, together with the 
rationale for the conclusions, in writing.
    (2) The regulatory authority must reevaluate the CHIA at intervals 
not to exceed 3 years to determine whether the CHIA remains accurate 
and whether the material damage and evaluation thresholds in the CHIA 
and the permit are adequate to ensure that material damage to the 
hydrologic balance outside the permit area will not occur. This 
evaluation must include a review of all biological and water monitoring 
data from both this operation and all other coal mining operations 
within the cumulative impact area.
    (3) The regulatory authority must prepare a new or updated CHIA if 
the review conducted under paragraph (c)(1) or (2) of this section 
finds that one is needed.


Sec.  780.22  What information must I include in the hydrologic 
reclamation plan and what information must I provide on alternative 
water sources?

    (a) Hydrologic reclamation plan. Your permit application must 
include a plan, with maps and descriptions, that demonstrates how the 
proposed operation will comply with the applicable provisions of 
subchapter K of this chapter that relate to protection of the 
hydrologic balance. The plan must--
    (1) Be specific to local hydrologic conditions.
    (2) Include preventive or remedial measures for any potential 
adverse hydrologic consequences identified in the PHC determination 
prepared under Sec.  780.20 of this part. These measures must describe 
the steps that you will take during mining and reclamation through 
final bond release under Sec. Sec.  800.40 through 800.43 of this 
chapter to--
    (i) Minimize disturbances to the hydrologic balance within the 
proposed permit and adjacent areas.
    (ii) Prevent material damage to the hydrologic balance outside the 
proposed permit area.

[[Page 93342]]

    (iii) Meet applicable water quality laws and regulations.
    (iv) Protect the rights of existing water users in accordance with 
paragraph (b) of this section and Sec.  816.40 of this chapter.
    (v) Avoid acid or toxic discharges to surface water and avoid or, 
if avoidance is not possible, minimize degradation of groundwater.
    (vi) Prevent, to the extent possible using the best technology 
currently available, additional contributions of suspended solids to 
streamflow or to runoff outside the proposed permit area.
    (vii) Provide water-treatment facilities when needed.
    (viii) Control surface-water runoff in accordance with Sec.  780.29 
of this part.
    (ix) Restore the approximate premining recharge capacity.
    (3) Address the impacts of any transfers of water among active and 
abandoned mines within the proposed permit and adjacent areas.
    (4) Describe the steps that you will take during mining and 
reclamation through final bond release under Sec. Sec.  800.40 through 
800.43 of this chapter to protect and enhance aquatic life and related 
environmental values to the extent possible using the best technology 
currently available.
    (b) Alternative water source information. (1) If the PHC 
determination prepared under Sec.  780.20 of this part indicates that 
the proposed mining operation may result in contamination, diminution, 
or interruption of an underground or surface source of water that is 
used for a domestic, agricultural, industrial, or other legitimate 
purpose, you must--
    (i) Identify alternative water sources that are available, feasible 
to develop, and of suitable quality and sufficient in quantity to 
support the uses existing before mining and, when applicable, the 
approved postmining land uses.
    (ii) Develop a water supply replacement plan that includes 
construction details, costs, and an implementation schedule.
    (2) If you cannot identify an alternative water source that is both 
suitable and available, you must modify your application to prevent the 
proposed operation from contaminating, interrupting, or diminishing any 
water supply protected under Sec.  816.40 of this chapter.
    (3)(i) When a suitable alternative water source is available, your 
operation plan must require that the alternative water supply be 
developed and installed on a permanent basis before your operation 
advances to the point at which it could adversely affect an existing 
water supply protected under Sec.  816.40 of this chapter.
    (ii) Paragraph (b)(3)(i) of this section will not apply immediately 
if you demonstrate, and the regulatory authority finds, that the 
proposed operation also would adversely affect the replacement supply. 
In that case, your plan must require provision of a temporary 
replacement water supply until it is safe to install the permanent 
replacement water supply required under paragraph (b)(3)(i) of this 
section.
    (4) Your application must describe how you will provide both 
temporary and permanent replacements for any unexpected losses of water 
supplies protected under Sec.  816.40 of this chapter.


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

    (a) Groundwater monitoring plan.--(1) General requirements. Your 
permit application must include a groundwater monitoring plan adequate 
to evaluate the impacts of the mining operation on groundwater in the 
proposed permit and adjacent areas and to determine in a timely manner 
whether corrective action is needed to prevent the operation from 
causing material damage to the hydrologic balance outside the permit 
area. The plan must--
    (i) Identify the locations to be monitored, the measurements to be 
taken at each location, and the parameters to be analyzed in samples 
collected at each location.
    (ii) Specify the sampling frequency.
    (iii) Establish a sufficient number of appropriate monitoring 
locations to evaluate the accuracy of the findings in the PHC 
determination, to identify adverse trends, and to determine, in a 
timely fashion, whether corrective action is needed to prevent material 
damage to the hydrologic balance outside the permit area. At a minimum, 
the plan must include--
    (A) For each aquifer above or immediately below the lowest coal 
seam to be mined, monitoring wells or equivalent monitoring points 
located upgradient and downgradient of the proposed operation.
    (B) Monitoring wells placed in backfilled portions of the permit 
area after backfilling and grading of all or a portion of the permit 
area is completed, unless you demonstrate, and the regulatory authority 
finds in writing, that wells in the backfilled area are not necessary 
to determine or predict the future impact of the mining operation on 
groundwater quality.
    (C) Monitoring wells in any existing underground mine workings that 
would have a direct hydrologic connection to the proposed operation.--
    (D) Monitoring wells or equivalent monitoring points at the 
locations specified in the CHIA under Sec.  780.21(b)(6)(iv) of this 
part.
    (iv) Describe how the monitoring data will be used to--
    (A) Determine the impacts of the operation upon the hydrologic 
balance.
    (B) Determine the impacts of the operation upon the biology of 
surface waters within the permit and adjacent areas.
    (C) Prevent material damage to the hydrologic balance outside the 
permit area.
    (v) Describe how the water samples will be collected, preserved, 
stored, transmitted for analysis, and analyzed in accordance with the 
sampling, analysis, and reporting requirements of paragraphs (a) and 
(b) of Sec.  777.13 of this chapter.
    (2) Parameters.--(i) General criteria for selection of parameters. 
The plan must provide for the monitoring of parameters for which an 
evaluation threshold under Sec.  780.21(b)(7) of this part exists. It 
also must provide for the monitoring of other parameters that could be 
affected by the proposed operation to the extent needed to assess the--
    (A) Accuracy of the findings and predictions in the PHC 
determination prepared under Sec.  780.20 of this part.
    (B) Suitability of the quality and quantity of groundwater for 
premining uses of the groundwater within the permit and adjacent areas, 
subject to Sec.  816.40 of this chapter.
    (C) Suitability of the quality and quantity of groundwater to 
support the premining land uses within the permit and adjacent areas.
    (ii) Minimum sampling and analysis requirements. At a minimum, the 
plan must require collection and analysis of a sample from each 
monitoring point every 3 months, with data submitted to the regulatory 
authority at the same frequency. The data must include--
    (A) Analysis of each sample for the groundwater parameters listed 
in Sec.  780.19(a)(2) of this part.
    (B) Water levels in each well used for monitoring purposes and 
discharge rates from each spring or underground opening used for 
monitoring purposes.
    (C) Analysis of each sample for parameters detected by the baseline 
sampling and analysis conducted under Sec.  780.19(d) of this part.
    (D) Analysis of each sample for all parameters for which there is 
an evaluation threshold under Sec.  780.21(b)(7) of this part.
    (E) Analysis of each sample for other parameters of concern, as 
determined by

[[Page 93343]]

the regulatory authority, based upon the information and analyses 
required under Sec. Sec.  780.19 through 780.21 of this part.
    (3) Regulatory authority review and action. (i) Upon completing the 
technical review of the application, the regulatory authority may 
require that you revise the plan to increase the frequency of 
monitoring, to require monitoring of additional parameters, or to 
require monitoring at additional locations, if the additional 
requirements would contribute to protection of the hydrologic balance.
    (ii) After completing preparation of the cumulative hydrologic 
impact assessment required under Sec.  780.21 of this part, the 
regulatory authority must reconsider the adequacy of the monitoring 
plan and require that you make any necessary changes.
    (4) Exception. If you can demonstrate, on the basis of the PHC 
determination prepared under Sec.  780.20 of this part or other 
available information that a particular aquifer in the proposed permit 
and adjacent areas has no existing or foreseeable use for agricultural 
or other human purposes or for fish and wildlife purposes and does not 
serve as an aquifer that significantly ensures the hydrologic balance 
within the cumulative impact area, the regulatory authority may waive 
monitoring of that aquifer.
    (b) Surface-water monitoring plan.--(1) General requirements. Your 
permit application must include a surface-water monitoring plan 
adequate to evaluate the impacts of the mining operation on surface 
water in the proposed permit and adjacent areas and to determine in a 
timely manner whether corrective action is needed to prevent the 
operation from causing material damage to the hydrologic balance 
outside the permit area. The plan must--
    (i) Identify the locations to be monitored, the measurements to be 
taken at each location, and the parameters to be analyzed in samples 
collected at each location.
    (ii)(A) Require on-site measurement of precipitation amounts at 
specified locations within the permit area, using self-recording 
devices.
    (B) Measurement of precipitation amounts must continue through 
Phase II bond release under Sec.  800.42(c) of this chapter or for any 
longer period specified by the regulatory authority.
    (C) At the discretion of the regulatory authority, you may use 
precipitation data from a single self-recording device to provide 
monitoring data for multiple permits that are contiguous or nearly 
contiguous if a single station would provide adequate and accurate 
coverage of precipitation events occurring in that area.
    (iii) Specify the sampling frequency.
    (iv) Establish a sufficient number of appropriate monitoring 
locations to evaluate the accuracy of the findings in the PHC 
determination, to identify adverse trends, and to determine, in a 
timely fashion, whether corrective action is needed to prevent material 
damage to the hydrologic balance outside the permit area. At a minimum, 
the plan must include--
    (A) Monitoring of point-source discharges from the proposed 
operation.
    (B) Monitoring locations upgradient and downgradient of the 
proposed permit area in each perennial and intermittent stream within 
the proposed permit and adjacent areas, with the exception that no 
upgradient monitoring location is needed for a stream when the 
operation will mine through the headwaters of that stream.
    (C) Monitoring locations specified in the CHIA under Sec.  
780.21(b)(6)(vi) of this part.
    (v) Describe how the monitoring data will be used to--
    (A) Determine the impacts of the operation upon the hydrologic 
balance.
    (B) Determine the impacts of the operation upon the biology of 
surface waters within the permit and adjacent areas.
    (C) Prevent material damage to the hydrologic balance outside the 
permit area.
    (vi) Describe how the water samples will be collected, preserved, 
stored, transmitted for analysis, and analyzed in accordance with the 
sampling, analysis, and reporting requirements of paragraphs (a) and 
(b) of Sec.  777.13 of this chapter.
    (2) Parameters.--(i) General criteria for selection of parameters. 
The plan must provide for the monitoring of parameters--
    (A) For which there are applicable effluent limitation guidelines 
under 40 CFR part 434.
    (B) Needed to assess the accuracy of the findings and predictions 
in the PHC determination prepared under Sec.  780.20 of this part.
    (C) Needed to assess the adequacy of the surface-water runoff 
control plan prepared under Sec.  780.29 of this part.
    (D) Needed to assess the suitability of the quality and quantity of 
surface water in the permit and adjacent areas for all designated uses 
under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), or, if 
there are no designated uses, all premining uses of surface water in 
the permit and adjacent areas, subject to Sec.  816.40 of this chapter; 
and--
    (E) Needed to assess the suitability of the quality and quantity of 
surface water in the permit and adjacent areas to support the premining 
land uses.
    (F) For which there is an evaluation threshold under Sec.  
780.21(b)(7) of this part.
    (ii) Minimum sampling and analysis requirements for monitoring 
locations other than point-source discharges. For all monitoring 
locations other than point-source discharges, the plan must require 
collection and analysis of a sample from each monitoring point at least 
every 3 months, with data submitted to the regulatory authority at the 
same frequency. The data must include--
    (A) Analysis of each sample for the surface-water parameters listed 
in Sec.  780.19(a)(2) of this part.
    (B) Flow rates at each sampling location. The plan must require use 
of generally-accepted professional flow measurement techniques. Visual 
observations are not acceptable.
    (C) Analysis of each sample for parameters detected by the baseline 
sampling and analysis conducted under Sec.  780.19(d) of this part.
    (D) Analysis of each sample for all parameters for which there is 
an evaluation threshold under Sec.  780.21(b)(7) of this part.
    (E) Analysis of each sample for other parameters of concern, as 
determined by the regulatory authority, based upon the information and 
analyses required under Sec. Sec.  780.19 through 780.21 of this part.
    (iii) Minimum requirements for point-source discharges. For point-
source discharges, the plan must--
    (A) Provide for monitoring in accordance with 40 CFR parts 122, 
123, and 434 and as required by the National Pollutant Discharge 
Elimination System permitting authority.
    (B) Require measurement of flow rates, using generally-accepted 
professional flow measurement techniques. Visual observations are not 
acceptable.
    (iv) Requirements related to the Clean Water Act. You must revise 
the plan to incorporate any site-specific monitoring requirements 
imposed by the National Pollutant Discharge Elimination System 
permitting authority or the agency responsible for administration of 
section 404 of the Clean Water Act, 33 U.S.C. 1344, subsequent to 
submission of the SMCRA permit application.
    (3) Regulatory authority review and action. (i) Upon completing the 
technical review of your application, the regulatory authority may 
require that you revise the plan to increase the frequency of 
monitoring, to require

[[Page 93344]]

monitoring of additional parameters, or to require monitoring at 
additional locations, if the additional requirements would contribute 
to protection of the hydrologic balance.
    (ii) After completing preparation of the cumulative hydrologic 
impact assessment required under Sec.  780.21 of this part, the 
regulatory authority must reconsider the adequacy of the monitoring 
plan and require that you make any necessary changes.
    (c) Biological condition monitoring plan.--(1) General 
requirements. Except as provided in paragraph (d) of this section, your 
permit application must include a plan for monitoring the biological 
condition of each perennial and intermittent stream within the proposed 
permit and adjacent areas for which baseline biological condition data 
was collected under Sec.  780.19(c)(6)(vi) of this part. The plan must 
be adequate to evaluate the impacts of the mining operation on the 
biological condition of those streams and to determine in a timely 
manner whether corrective action is needed to prevent the operation 
from causing material damage to the hydrologic balance outside the 
permit area.
    (2) Monitoring techniques. The plan must--
    (i) Require use of a bioassessment protocol that meets the 
requirements of Sec.  780.19(c)(6)(vii) of this part.
    (ii) Identify monitoring locations in each perennial and 
intermittent stream within the proposed permit and adjacent areas for 
which baseline biological condition data was collected under Sec.  
780.19(c)(6)(vi) of this part.
    (iii) Establish a sampling frequency that must be no less than 
annual, but not so frequent as to unnecessarily deplete the populations 
of the species being monitored.
    (iv) Require submission of monitoring data to the regulatory 
authority on an annual basis.
    (3) Regulatory authority review and action. (i) Upon completing 
review of your application, the regulatory authority may require that 
you revise the plan to adjust monitoring locations, the frequency of 
monitoring, and the species to be monitored.
    (ii) After completing preparation of the cumulative hydrologic 
impact assessment required under Sec.  780.21 of this part, the 
regulatory authority must reconsider the adequacy of the monitoring 
plan and require that you make any necessary changes.
    (d) Exceptions.--(1) Lands eligible for remining. (i) If the 
proposed permit area includes only lands eligible for remining, you may 
request that the regulatory authority modify the groundwater and 
surface water monitoring plan requirements of paragraphs (a) and (b) of 
this section and modify or waive the biological condition monitoring 
plan requirements of paragraph (c) of this section.
    (ii) The regulatory authority may approve your request if it 
determines that a less extensive monitoring plan will be adequate to 
monitor the impacts of the proposed operation on groundwater and 
surface water, based upon an evaluation of the quality of groundwater 
and surface water and the biological condition of the receiving stream 
at the time of application.
    (2) Operations that avoid streams. (i) Upon your request, the 
regulatory authority may waive the biological condition monitoring plan 
requirements of paragraph (c) of this section if you demonstrate, and 
if the regulatory authority finds in writing, that your operation will 
not--
    (A) Mine through or bury any perennial or intermittent stream;
    (B) Create a point-source discharge to any perennial, intermittent, 
or ephemeral stream; or
    (C) Modify the base flow of any perennial or intermittent stream.
    (ii) If you meet all the criteria of paragraph (d)(2)(i) of this 
section with the exception of paragraph (d)(2)(i)(B) of this section, 
you may request, and the regulatory authority may approve, limiting the 
biological condition monitoring plan requirements of paragraph (c) of 
this section to only the stream that will receive the point-source 
discharge.
    (e) Coordination with Clean Water Act agencies. The regulatory 
authority will make best efforts to--
    (1) Consult in a timely manner with the agencies responsible for 
issuing permits, authorizations, and certifications under the Clean 
Water Act;
    (2) Minimize differences in monitoring locations and reporting 
requirements; and
    (3) Share data to the extent practicable and consistent with each 
agency's mission, statutory requirements, and implementing regulations.


Sec.  780.24  What requirements apply to the postmining land use?

    (a) What postmining land use information must my application 
contain? (1) You must describe and map the proposed use or uses of the 
land within the proposed permit area following reclamation, based on 
the categories of land uses listed in the definition of land use in 
Sec.  701.5 of this chapter.
    (2) Except for prime farmland historically used for cropland, you 
must discuss the utility and capability of the reclaimed land to 
support the proposed postmining land use and the variety of uses that 
the land was capable of supporting before any mining, as identified 
under Sec.  779.22 of this chapter, regardless of the proposed 
postmining land use.
    (3) You must explain how the proposed postmining land use is 
consistent with existing state and local land use policies and plans.
    (4) You must include a copy of the comments concerning the proposed 
postmining use that you receive from the--
    (i) Legal or equitable owner of record of the surface of the 
proposed permit area; and
    (ii) State and local government agencies that would have to 
initiate, implement, approve, or authorize the proposed use of the land 
following reclamation.
    (5) You must explain how the proposed postmining land use will be 
achieved and identify any support activities or facilities needed to 
achieve that use.
    (6) If you propose to restore the proposed permit area or a portion 
thereof to a condition capable of supporting a higher or better use or 
uses rather than to a condition capable of supporting the uses that the 
land could support before any mining, you must provide the 
demonstration required under paragraph (b)(1) of this section.
    (b) What requirements apply to the approval of alternative 
postmining land uses?--(1) Application requirements. If you propose to 
restore the proposed permit area or a portion thereof to a condition 
capable of supporting a higher or better use or uses, rather than to a 
condition capable of supporting the uses that the land could support 
before any mining, you must demonstrate that the proposed higher or 
better use or uses meet the following criteria:
    (i) There is a reasonable likelihood that the proposed use or uses 
will be achieved after mining and reclamation, as documented by, for 
example, real estate and construction contracts, plans for installation 
of any necessary infrastructure, procurement of any necessary zoning 
approvals, landowner commitments, economic forecasts, and studies by 
land use planning agencies.
    (ii) The proposed use or uses do not present any actual or probable 
hazard to public health or safety or any threat of water diminution or 
pollution.
    (iii) The proposed use or uses will not--
    (A) Be impractical or unreasonable.
    (B) Be inconsistent with applicable land use policies or plans.

[[Page 93345]]

    (C) Involve unreasonable delay in implementation.
    (D) Cause or contribute to a violation of federal, state, tribal or 
local law.
    (E) Result in changes in the size or frequency of peak flows from 
the reclaimed area that would cause an increase in flooding when 
compared with the conditions that would exist if the land were restored 
to a condition capable of supporting the uses that it was capable of 
supporting before any mining.
    (F) Cause the total volume of flow from the reclaimed area, during 
every season of the year, to vary in a way that would preclude 
attainment of any designated use of a surface water located outside the 
permit area under section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), or, if there are no designated uses, any premining use of a 
surface water located outside the permit area.
    (G) Cause a change in the temperature or chemical composition of 
the water that would preclude attainment of any designated use of a 
surface water under section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), or, if there are no designated uses, any premining use of a 
surface water located outside the permit area.
    (2) Regulatory authority decision requirements. The regulatory 
authority may approve your request if it--
    (i) Consults with the landowner or the land management agency 
having jurisdiction over the lands to which the use would apply; and
    (ii) Finds in writing that you have made the demonstration required 
under paragraph (b)(1) of this section. Landowner consent alone is an 
insufficient basis for this finding.
    (c) What requirements apply to permit revision applications that 
propose to change the postmining land use? (1) You may propose to 
change the postmining land use for all or a portion of the permit area 
at any time through the permit revision process under Sec.  774.13 of 
this chapter.
    (2) If you propose a higher or better postmining land use, the 
requirements of paragraphs (b)(1) and (2) of this section will apply 
and the application must be considered a significant permit revision 
for purposes of Sec.  774.13(b)(2) of this chapter.
    (d) What restrictions apply to the retention of mining-related 
structures? (1) If you propose to retain mining-related structures 
other than roads and impoundments for potential future use as part of 
the postmining land use, you must demonstrate, and the regulatory 
authority must find in writing, that the size and characteristics of 
the structures are consistent with and proportional to the needs of the 
postmining land use.
    (2) The amount of bond required for the permit under part 800 of 
this chapter must include the cost of removing the structure and 
reclaiming the land upon which it was located to a condition capable of 
supporting the premining uses. The bond must include the cost of 
restoring the site to its approximate original contour in accordance 
with Sec.  816.102 of this chapter and revegetating the site in 
accordance with the revegetation plan approved under Sec.  780.12(g) of 
this part for the permit area surrounding the site upon which the 
structure was previously located.
    (3) The reclamation plan submitted under Sec.  780.12 of this part 
must specify that if a structure is not in use as part of the approved 
postmining land use by the end of the revegetation responsibility 
period specified in Sec.  816.115 of this chapter, you must remove the 
structure and reclaim the land upon which it was located by restoring 
the approximate original contour in accordance with Sec.  816.102 of 
this chapter and revegetating the site in accordance with the 
revegetation plan approved under Sec.  780.12(g) of this part for the 
permit area surrounding the site upon which the structure was 
previously located.
    (e) What special provisions apply to previously mined areas? If 
land that was previously mined cannot be reclaimed to the land use that 
existed before any mining because of the previously mined condition, 
you may propose, and the regulatory authority may approve, any 
appropriate postmining land use for that land that is both achievable 
and compatible with land uses in the surrounding area, provided that 
restoration of the land to that capability does not require disturbance 
of land previously unaffected by mining.


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

    (a) How do I determine the hazard potential of a proposed 
impoundment? You must use the following table to identify the hazard 
potential classification of each proposed impoundment that includes a 
dam:

------------------------------------------------------------------------
                                Loss of human   Economic, environmental,
       Hazard potential         life in event    or lifeline losses \1\
        classification            of failure       in event of failure
------------------------------------------------------------------------
Low..........................  None expected..  Low potential; generally
                                                 limited to property
                                                 owned by the permittee.
Significant..................  None expected..  Yes.
High.........................  Loss of one or   Yes, but not necessary
                                more lives       for this
                                probable.        classification.
------------------------------------------------------------------------
\1\ Lifeline losses refer to disruption of lifeline facilities, which
  include, but are not limited to, important public utilities, highways,
  and railroads.

    (b) How must I prepare the general plan for proposed siltation 
structures, impoundments, and refuse piles? If you propose to construct 
a siltation structure, impoundment, or refuse pile, your application 
must include a general plan that meets the following requirements:
    (1) The plan 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 such plans, a qualified registered professional 
land surveyor, with assistance from experts in related fields such as 
landscape architecture.
    (2) The plan must contain a description, map, and cross-sections of 
the structure and its location.
    (3) The plan must contain the hydrologic and geologic information 
required to assess the hydrologic impact of the structure.
    (4)(i) The plan must contain a report describing the results of a 
geotechnical investigation of the potential effect on the structure if 
subsurface strata subside as a result of past, current, or future 
underground mining operations beneath or within the proposed permit and 
adjacent areas. When necessary, the investigation report also must 
identify design and construction measures that would prevent adverse 
subsidence-related impacts on the structure.
    (ii) Except for structures that would meet the criteria in Sec.  
77.216(a) of this title or that would have a significant or high hazard 
potential under paragraph (a) of this section, the requirements of 
paragraph (b)(4)(i) of this section do not apply--
    (A) In areas with 26.0 inches or less of average annual 
precipitation; or
    (B) To siltation structures.

[[Page 93346]]

    (5)(i) The plan must contain an analysis of the potential for each 
impoundment to drain into subjacent underground mine workings, together 
with an analysis of the impacts of such drainage.
    (ii) Except for structures that would meet the criteria in Sec.  
77.216(a) of this title or that would have a significant or high hazard 
potential under paragraph (a) of this section, the requirements of 
paragraph (b)(5)(i) of this section do not apply--
    (A) In areas with 26.0 inches or less of average annual 
precipitation; or
    (B) To siltation structures.
    (6) The plan must include a schedule setting forth the dates when 
any detailed design plans for structures that are not submitted with 
the general plan will be submitted to the regulatory authority.
    (c) How must I prepare the detailed design plan for proposed 
siltation structures, impoundments, and refuse piles?--(1) Detailed 
design plan requirements for high hazard dams, significant hazard dams, 
and impounding structures that meet MSHA criteria. If you propose to 
construct an impounding structure that would meet the criteria in Sec.  
77.216(a) of this title or that would have a significant or high hazard 
potential under paragraph (a) of this section, you must prepare and 
submit a detailed design plan that meets the following requirements:
    (i) The plan must be prepared by, or under the direction of, a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture. The engineer must certify that the impoundment design 
meets the requirements of this part, current prudent engineering 
practices, and any design criteria established by the regulatory 
authority. The qualified registered professional engineer must be 
experienced in the design and construction of impoundments.
    (ii) The plan must incorporate any design and construction measures 
identified in the geotechnical investigation report prepared under 
paragraph (b)(4) of this section as necessary to protect against 
potential adverse impacts from subsidence resulting from underground 
mine workings underlying or adjacent to the structure.
    (iii) The plan must describe the operation and maintenance 
requirements for each structure.
    (iv) The plan must describe the timetable and plans to remove each 
structure, if appropriate.
    (2) Detailed design plan requirements for other structures. If you 
propose to construct an impounding structure that would not meet the 
criteria in Sec.  77.216(a) of this title and that would not have a 
significant or high hazard potential under paragraph (a) of this 
section, you must prepare and submit a detailed design plan that meets 
the following requirements:
    (i)(A) Except as provided in paragraph (c)(2)(i)(B) of this 
section, the plan must be prepared by, or under the direction of, a 
qualified, registered, professional engineer, or, in any state that 
authorizes land surveyors to prepare and certify such plans, a 
qualified, registered, professional, land surveyor. The engineer or 
land surveyor must certify that the impoundment design meets the 
requirements of this part, current prudent engineering practices, and 
any design criteria established by the regulatory authority. The 
qualified registered professional engineer or qualified registered 
professional land surveyor must be experienced in the design and 
construction of impoundments.
    (B) All coal mine waste structures to which Sec. Sec.  816.81 
through 816.84 of this chapter apply must be certified by a qualified, 
registered, professional engineer.
    (ii) The plan must reflect any design and construction requirements 
for the structure, including any measures identified as necessary in 
the geotechnical investigation report prepared under paragraph (b)(4) 
of this section.
    (iii) The plan must describe the operation and maintenance 
requirements for each structure.
    (iv) The plan must describe the timetable and plans to remove each 
structure, if appropriate.
    (3) Timing of submittal of detailed design plans. You must submit 
the detailed design plans to the regulatory authority either as part of 
the permit application or in accordance with the schedule submitted 
under paragraph (b)(6) of this section. The regulatory authority must 
approve, in writing, the detailed design plan for a structure before 
you may begin construction of the structure.
    (d) What additional design requirements apply to siltation 
structures? You must design siltation structures in compliance with the 
requirements of Sec.  816.46 of this chapter.
    (e) What additional design requirements apply to permanent and 
temporary impoundments? (1) You must design permanent and temporary 
impoundments to comply with the requirements of Sec.  816.49 of this 
chapter.
    (2) The regulatory authority may establish, through the regulatory 
program approval process, engineering design standards that ensure 
stability comparable to a 1.3 minimum static safety factor in lieu of 
conducting engineering tests to establish compliance with the minimum 
static safety factor of 1.3 required in Sec.  816.49(a)(2)(ii) of this 
chapter.
    (3) Each plan must include stability analyses of the proposed 
impoundment if the structure would meet the criteria in Sec.  77.216(a) 
of this title or would have a significant or high hazard potential 
under paragraph (a) of this section. The stability analyses must 
address static, seismic, and post-earthquake (liquefaction) conditions. 
They must include, but are not 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 analysis and design parameters and construction methods.
    (f) What additional design requirements apply to coal mine waste 
impoundments, refuse piles, and impounding structures constructed of 
coal mine waste? If you 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 design 
requirements in paragraphs (f)(1) and (2) of this section.
    (1) Design requirements for refuse piles. You must design refuse 
piles to comply with the requirements of Sec. Sec.  780.28, 816.81, and 
816.83 of this chapter.
    (2) Design requirements for impounding structures that will impound 
coal mine waste or that will be constructed of coal mine waste. (i) You 
must design impounding structures constructed of or intended to impound 
coal mine waste to comply with the coal mine waste disposal 
requirements of Sec. Sec.  780.28, 816.81, and 816.84 of this chapter 
and with the impoundment requirements of paragraphs (a) and (c) of 
Sec.  816.49 of this chapter.
    (ii) The plan for each impounding 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.
    (iii) Each plan for an impounding structure that will impound coal 
mine waste or that will be constructed of coal mine waste 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

[[Page 93347]]

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 impounding structure.
    (C) Identify all springs, seepage, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed impounding 
structure on each plan.
    (D) Consider the possibility of mudflows, rock-debris falls, or 
other landslides into the impounding structure, impoundment, or 
impounded material.
    (iv) The design must ensure that at least 90 percent of the water 
stored in the impoundment during the design precipitation event will be 
removed within a 10-day period.


Sec.  780.26  What special requirements apply to surface mining near 
underground mining?

    Your application must describe the measures that you will use to 
comply with Sec.  816.79 of this chapter if you intend to conduct 
surface mining activities within 500 feet of an underground mine.


Sec.  780.27  What additional permitting requirements apply to proposed 
activities in or through ephemeral streams?

    (a) Clean Water Act requirements. If the proposed permit area 
includes waters subject to the jurisdiction of the Clean Water Act, 33 
U.S.C. 1251 et seq., the regulatory authority must condition the permit 
to prohibit initiation of surface mining activities in or affecting 
those waters before you obtain all necessary authorizations, 
certifications, and permits under the Clean Water Act, 33 U.S.C. 1251 
et seq.
    (b) Postmining surface drainage pattern and stream-channel 
configuration. (1) If you propose to mine through an ephemeral stream, 
your application must include a plan to construct--
    (i) A postmining surface drainage pattern that is similar to the 
premining surface drainage pattern, relatively stable, and in dynamic 
near-equilibrium; and
    (ii) Postmining stream-channel configurations that are relatively 
stable and similar to the premining configuration of ephemeral stream 
channels.
    (2) The regulatory authority may approve or require a postmining 
surface drainage pattern or stream-channel configuration that differs 
from the pattern or configuration otherwise required under paragraph 
(b)(1) of this section when the regulatory authority finds that a 
different pattern or configuration is necessary or appropriate to--
    (i) Ensure stability;
    (ii) Prevent or minimize downcutting or widening of reconstructed 
stream channels and control meander migration;
    (iii) Promote enhancement of fish and wildlife habitat;
    (iv) Accommodate any anticipated temporary or permanent increase in 
surface runoff as a result of mining and reclamation;
    (v) Accommodate the construction of excess spoil fills, coal mine 
waste refuse piles, or coal mine waste impounding structures;
    (vi) Replace a stream that was channelized or otherwise severely 
altered prior to submittal of the permit application with a more 
natural, relatively stable, and ecologically sound drainage pattern or 
stream-channel configuration; or
    (vii) Reclaim a previously mined area.
    (c) Streamside vegetative corridors. (1) If you propose to mine 
through an ephemeral stream, your application must include a plan to 
establish a vegetative corridor at least 100 feet wide along each bank 
of the reconstructed stream channel, consistent with natural vegetation 
patterns.
    (2) The plan submitted under paragraph (c)(1) of this section must 
be consistent with the requirements of Sec.  816.56(c) of this chapter 
for vegetative corridors along ephemeral streams.
    (3) Paragraphs (c)(1) and (2) of this section do not apply to prime 
farmland historically used for cropland.


Sec.  780.28  What additional permitting requirements apply to proposed 
activities in, through, or adjacent to a perennial or intermittent 
stream?

    (a) Clean Water Act requirements. If the proposed permit area 
includes waters subject to the jurisdiction of the Clean Water Act, 33 
U.S.C. 1251 et seq., the regulatory authority must condition the permit 
to prohibit initiation of surface mining activities in or affecting 
those waters before you obtain all necessary authorizations, 
certifications, and permits under the Clean Water Act, 33 U.S.C. 1251 
et seq.
    (b) To what activities does this section apply? You, the permit 
applicant, must provide the information and demonstrations required by 
paragraphs (c) through (g) of this section, as applicable, whenever you 
propose to conduct surface mining activities--
    (1) In or through a perennial or intermittent stream; or
    (2) On the surface of lands within 100 feet of a perennial or 
intermittent stream. You must measure this distance horizontally on a 
line perpendicular to the stream, beginning at the ordinary high water 
mark.
    (c) Postmining surface drainage pattern and stream-channel 
configuration. (1) If you propose to mine through a perennial or 
intermittent stream, your application must include a plan to 
construct--
    (i) A postmining surface drainage pattern that is similar to the 
premining surface drainage pattern, relatively stable, and in dynamic 
near-equilibrium; and
    (ii) Postmining stream-channel configurations that are relatively 
stable and similar to the premining configuration of perennial and 
intermittent stream channels.
    (2) The regulatory authority may approve or require a postmining 
surface drainage pattern or stream-channel configuration that differs 
from the pattern or configuration otherwise required under paragraph 
(c)(1) of this section when the regulatory authority finds that a 
different pattern or configuration is necessary or appropriate to--
    (i) Ensure stability;
    (ii) Prevent or minimize downcutting or widening of reconstructed 
stream channels and control meander migration;
    (iii) Promote enhancement of fish and wildlife habitat;
    (iv) Accommodate any anticipated temporary or permanent increase in 
surface runoff as a result of mining and reclamation;
    (v) Accommodate the construction of excess spoil fills, coal mine 
waste refuse piles, or coal mine waste impounding structures;
    (vi) Replace a stream that was channelized or otherwise severely 
altered prior to submittal of the permit application with a more 
natural, relatively stable, and ecologically sound drainage pattern or 
stream-channel configuration; or
    (vii) Reclaim a previously mined area.
    (d) Streamside vegetative corridors. (1) If you propose to conduct 
any surface mining activities identified in paragraph (b) of this 
section, your application must include a plan to

[[Page 93348]]

establish a vegetated streamside corridor at least 100 feet wide along 
each bank of the stream as part of the reclamation process following 
the completion of surface mining activities within that area.
    (2) The plan submitted under paragraph (d)(1) of this section must 
be consistent with natural vegetation patterns.
    (3) The plan submitted under paragraph (d)(1) of this section must 
be consistent with the streamside vegetative corridor requirements of 
Sec.  816.57(d) of this chapter.
    (4) The corridor width must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark.
    (5) Paragraphs (d)(1) through (2) of this section do not apply to 
prime farmland historically used for cropland.
    (e) What demonstrations must I include in my application if I 
propose to conduct activities in or within 100 feet of a perennial or 
intermittent stream? (1) Except as provided in paragraphs (e)(4), 
(e)(5), and (i) of this section and Sec.  816.57(i) of this chapter, 
your application must contain the applicable demonstrations set forth 
in the table if you propose to conduct surface mining activities in or 
through a perennial or intermittent stream or on the surface of land 
within 100 feet of a perennial or intermittent stream, as specified in 
paragraph (b) of this section.

----------------------------------------------------------------------------------------------------------------
                                                                        Activity
                                      --------------------------------------------------------------------------
                                       Any activity other than
                                          mining through or
                                        permanently  diverting
                                             a stream  or                                   Construction of an
            Demonstration                construction of  an       Mining through or     excess spoil fill, coal
                                          excess spoil fill,     permanently  diverting  mine waste refuse pile,
                                       coal mine waste  refuse          a stream         or impounding structure
                                         pile, or  impounding                             that  encroaches upon
                                            structure that                                any part of a  stream
                                         encroaches upon  any
                                           part of a stream
----------------------------------------------------------------------------------------------------------------
(i) The proposed activity would not    Yes....................  Yes....................  Yes.
 cause or contribute to a violation
 of applicable state or tribal water
 quality standards, including, but
 not limited to, standards
 established under the authority of
 section 303(c) of the Clean Water
 Act, 33 U.S.C. 1313(c).
(ii) The proposed activity would not   Yes....................  Yes....................  Yes.
 cause material damage to the
 hydrologic balance outside the
 permit area or upset the dynamic
 near-equilibrium of streams outside
 the permit area.
(iii) The proposed activity would not  Yes....................  Yes....................  Not applicable.
 result in conversion of the affected
 stream segment from perennial to
 ephemeral.
(iv) The proposed activity would not   Yes....................  Yes, except as provided  Not applicable.
 result in conversion of the affected                            in paragraphs (e)(2)
 stream segment from intermittent to                             and (5) of this
 ephemeral or from perennial to                                  section.
 intermittent.
(v) There is no practicable            Not applicable.........  Yes, except as provided  Yes.
 alternative that would avoid mining                             in paragraph (e)(3) of
 through or diverting a perennial or                             this section.
 intermittent stream.
(vi) After evaluating all potential    Not applicable.........  Not applicable.........  Yes.
 upland locations in the vicinity of
 the proposed operation, including
 abandoned mine lands and unreclaimed
 bond forfeiture sites, there is no
 practicable alternative that would
 avoid placement of excess spoil or
 coal mine waste in a perennial or
 intermittent stream.
(vii) The proposed operation has been  Not applicable.........  Yes, except as provided  Yes.
 designed to minimize the extent to                              in paragraphs (e)(3)
 which perennial or intermittent                                 and (5) of this
 streams will be mined through,                                  section.
 diverted, or covered by an excess
 spoil fill, a coal mine waste refuse
 pile, or a coal mine waste
 impounding structure.
(viii) The stream restoration          Not applicable.........  Yes, except as provided  Not applicable.
 techniques in the proposed                                      in paragraph (e)(5) of
 reclamation plan are adequate to                                this section.
 ensure restoration or improvement of
 the form, hydrologic function
 (including flow regime), dynamic
 near-equilibrium, streamside
 vegetation, and ecological function
 of the stream after you have mined
 through it, as required by Sec.
 816.57 of this chapter.
(ix) The proposed operation has been   Sec.   780.35(b) of      Sec.   780.35(b) of      Yes.
 designed to minimize the amount of     this part requires       this part requires
 excess spoil or coal mine waste that   minimization of excess   minimization of excess
 the proposed operation will generate.  spoil.                   spoil.

[[Page 93349]]

 
(x) To the extent possible using the   Yes....................  Yes....................  Yes.
 best technology currently available,
 the proposed operation has been
 designed to minimize adverse impacts
 on fish, wildlife, and related
 environmental values.
(xi) The fish and wildlife             Not applicable.........  Not applicable.........  Yes.
 enhancement plan prepared under Sec.
   780.16 of this part includes
 measures that would fully and
 permanently offset any long-term
 adverse impacts on fish, wildlife,
 and related environmental values
 within the footprint of each excess
 spoil fill, coal mine waste refuse
 pile, and coal mine waste impounding
 structure.
(xii) Each excess spoil fill, coal     Not applicable.........  Not applicable.........  Yes.
 mine waste refuse pile, and coal
 mine waste impounding structure has
 been designed in a manner that will
 not result in the formation of toxic
 mine drainage.
(xiii) The revegetation plan prepared  Not applicable.........  Not applicable.........  Yes.
 under Sec.   780.12(g) of this part
 requires reforestation of each
 completed excess spoil fill if the
 land is forested at the time of
 application or if the land would
 revert to forest under conditions of
 natural succession.
----------------------------------------------------------------------------------------------------------------

    (2)(i) As part of a proposal to mine through an intermittent 
stream, you may propose to convert a minimal portion of the mined-
through segment of an intermittent stream to an ephemeral stream. The 
regulatory authority may approve the proposed conversion only if you 
demonstrate, and the regulatory authority finds, that the conversion 
would not degrade the hydrologic function, dynamic near-equilibrium, or 
the ecological function of the stream as a whole within the mined area, 
as determined by comparison with the stream assessment conducted under 
Sec.  780.19(c)(6) of this part.
    (ii) Paragraph (e)(2)(i) of this section does not apply to the 
circumstances described in paragraph (e)(5) of this section.
    (3)(i) Paragraphs (e)(1)(v) and (vii) of this section do not apply 
to a proposal to mine through a segment of an intermittent stream when 
that segment meets the criteria of paragraph (e)(3)(ii) of this 
section, provided you demonstrate, and the regulatory authority finds, 
that implementation of the proposed mining and reclamation plan--
    (A) Will improve the form of the stream segment;
    (B) Will improve the hydrologic function of the stream;
    (C) Is likely to result in improvement of the biological condition 
or ecological function of the stream;
    (D) Will not further degrade the hydrologic function, dynamic near-
equilibrium, biological condition, or ecological function of the 
stream; and
    (E) Will result in establishment of a streamside vegetative 
corridor for the stream segment in accordance with Sec.  816.57(d) of 
this chapter.
    (ii) To qualify for purposes of paragraph (e)(3)(i) of this 
section, a stream segment must display both of the following 
characteristics:
    (A) Prior anthropogenic activity has resulted in substantial 
degradation of the profile or dimensions of the stream channel; and
    (B) Degradation of the stream channel has resulted in a substantial 
adverse impact on the ecological function of the stream.
    (4) Paragraph (e)(1) of this section does not apply to a stream 
segment that will be part of a permanent impoundment approved and 
constructed under Sec.  816.49(b) of this chapter.
    (5) Paragraphs (e)(1)(iv) and (vii) of this section and the 
requirement for restoration of the hydrologic and ecological functions 
and the dynamic near-equilibrium of a stream in paragraph (e)(1)(viii) 
of this section do not apply to an intermittent stream segment if--
    (i) The intermittent segment is a minor interval in what is 
otherwise a predominantly ephemeral stream;
    (ii) You demonstrate, and the regulatory authority finds, that the 
intermittent segment has no significant fish, wildlife, or related 
environmental values, as documented by the baseline data collected 
under Sec.  780.19(c)(6) of this part; and
    (iii) You demonstrate, and the regulatory authority finds, that 
conversion of the intermittent stream segment will not adversely affect 
water uses.
    (f) What design requirements apply to the diversion, restoration, 
and reconstruction of perennial and intermittent stream channels? 
(1)(i) You must design permanent stream-channel diversions, temporary 
stream-channel diversions that will remain in use for 3 or more years, 
and stream channels to be reconstructed after the completion of mining 
to restore, approximate, or improve the premining characteristics of 
the original stream channel, to promote the recovery and enhancement of 
aquatic habitat and the ecological and hydrologic functions of the 
stream, and to minimize adverse alteration of stream

[[Page 93350]]

channels on and off the site, including channel deepening or 
enlargement.
    (ii) Pertinent stream-channel characteristics include, but are not 
limited to, the baseline stream pattern, profile, dimensions, 
substrate, habitat, and natural vegetation growing in the riparian zone 
and along the banks of the stream.
    (iii) For temporary stream-channel diversions that will remain in 
use for 3 or more years, the vegetation proposed for planting along the 
banks of the diversion need not include species that would not reach 
maturity until after the diversion is removed.
    (2) You must design the hydraulic capacity of all temporary and 
permanent stream-channel diversions to be at least equal to the 
hydraulic capacity of the unmodified stream channel immediately 
upstream of the diversion, but no greater than the hydraulic capacity 
of the unmodified stream channel immediately downstream from the 
diversion.
    (3) You must design all temporary and permanent stream-channel 
diversions in a manner that ensures that the combination of channel, 
bank, and flood-plain configuration is adequate to pass safely the peak 
runoff of a 10-year, 6-hour precipitation event for a temporary 
diversion and a 100-year, 6-hour precipitation event for a permanent 
diversion.
    (4) You must submit a certification from a qualified registered 
professional engineer that the designs for all stream-channel 
diversions and all stream channels to be reconstructed after the 
completion of mining meet the design requirements of this section and 
any additional design criteria established by the regulatory authority. 
This certification may be limited to the location, dimensions, and 
physical characteristics of the stream channel.
    (g) What requirements apply to establishment of standards for 
restoration of the ecological function of a stream? (1) If you propose 
to mine through a perennial or intermittent stream, the regulatory 
authority must establish standards for determining when the ecological 
function of the reconstructed stream has been restored. Your 
application must incorporate those standards and explain how you will 
meet them.
    (2) In establishing standards under paragraph (g)(1) of this 
section, the regulatory authority must coordinate with the appropriate 
agencies responsible for administering the Clean Water Act, 33 U.S.C. 
1251 et seq., to ensure compliance with all Clean Water Act 
requirements.
    (3)(i) The biological component of the standards established under 
paragraph (g)(1) of this section must employ the best technology 
currently available, as specified in paragraphs (g)(3)(ii) through (iv) 
of this section.
    (ii) For perennial streams, the best technology currently available 
includes an assessment of the biological condition of the stream, as 
determined by an index of biological condition or other scientifically-
defensible bioassessment protocols consistent with Sec.  
780.19(c)(6)(vii) of this part. Standards established under paragraph 
(g)(1) of this section for perennial streams--
    (A) Need not require that a reconstructed stream or stream-channel 
diversion have precisely the same biological condition or biota as the 
stream segment did before mining.
    (B) Must prohibit substantial replacement of pollution-sensitive 
species with pollution-tolerant species.
    (C) Must require that populations of organisms used to determine 
the biological condition of the reconstructed stream or stream-channel 
diversion be self-sustaining within that stream segment.
    (iii) Paragraph (g)(3)(ii) of this section also applies to 
intermittent streams whenever a scientifically defensible biological 
index and bioassessment protocol have been established for assessment 
of intermittent streams in the state or region in which the stream is 
located.
    (iv)(A) Except as provided in paragraph (g)(3)(iii) of this 
section, the best technology currently available for intermittent 
streams consists of the establishment of standards that rely upon 
restoration of the form, hydrologic function, and water quality of the 
stream and reestablishment of streamside vegetation as a surrogate for 
the biological condition of the stream.
    (B) The regulatory authority must reevaluate the best technology 
currently available for intermittent streams under paragraph 
(g)(3)(iv)(A) of this section at 5-year intervals. Upon conclusion of 
that evaluation, the regulatory authority must make any appropriate 
adjustments before processing permit applications submitted after the 
conclusion of that evaluation.
    (4) Standards established under paragraph (g)(1) of this section 
must ensure that the reconstructed stream or stream-channel diversion 
will not--
    (i) Preclude attainment of the designated uses of that stream 
segment under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), 
before mining, or, if there are no designated uses, the premining uses 
of that stream segment; or
    (ii) Result in that stream segment not meeting the applicable anti-
degradation requirements under section 303(c) of the Clean Water Act, 
33 U.S.C. 1313(c), as adopted by a state or authorized tribe or as 
promulgated in a federal rulemaking under the Clean Water Act.
    (h) What finding must the regulatory authority make before 
approving a permit application under this section? The regulatory 
authority may not approve an application that includes a proposal to 
conduct surface mining activities in or within 100 feet of a perennial 
or intermittent stream unless it first makes a specific written finding 
that you have fully satisfied all applicable requirements of paragraphs 
(c) through (f) of this section. The finding must be accompanied by a 
detailed explanation of the rationale for the finding.
    (i) Programmatic alternative. Paragraphs (c) through (h) of this 
section will not apply to a state program approved under subchapter T 
of this chapter if that program is amended to expressly prohibit all 
surface mining activities, including the construction of stream-channel 
diversions, that would result in more than a de minimis disturbance of 
perennial or intermittent streams or the surface of land within 100 
feet of a perennial or intermittent stream.


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

    Your application must contain a surface-water runoff control plan 
that includes the following--
    (a)(1) An explanation of how you will handle surface-water runoff 
in a manner that will prevent peak flows from the proposed permit area, 
both during and after mining and reclamation, from exceeding the 
premining peak flow from the same area for the same-size precipitation 
event. You must use the appropriate regional Natural Resources 
Conservation Service synthetic storm distribution or another 
scientifically defensible method approved by the regulatory authority 
that takes into account the time of concentration to estimate peak 
flows.
    (2) The explanation in paragraph (a)(1) of this section must 
consider the findings in the determination of the probable hydrologic 
consequences of mining prepared under Sec.  780.20 of this part.
    (b) A surface-water runoff monitoring and inspection program that 
will provide sufficient precipitation and stormwater discharge data for 
the proposed permit area to evaluate the effectiveness of the surface-
water runoff control practices under paragraph (a) of

[[Page 93351]]

this section. The surface-water runoff monitoring and inspection 
program must specify criteria for monitoring, inspection, and reporting 
consistent with Sec.  816.34(d) of this chapter. The program must 
contain a monitoring-point density that adequately represents the 
drainage pattern across the entire proposed permit area, with a minimum 
of one monitoring point per watershed discharge point.
    (c) Descriptions maps, and cross-sections of runoff-control 
structures. A runoff-control structure is any man-made structure 
designed to control or convey storm water runoff on or across a 
minesite. This term encompasses the entire surface water control system 
and includes diversion ditches, drainage benches or terraces, drop 
structures or check dams, all types of conveyance channels, downdrains, 
and sedimentation and detention ponds and associated outlets. It does 
not include swales or reconstructed perennial, intermittent, or 
ephemeral stream channels.
    (d) An explanation of how diversions will be constructed in 
compliance with Sec.  816.43 of this chapter.


Sec.  780.31  What information must I provide concerning the protection 
of publicly owned parks and historic places?

    (a) For any publicly owned parks or any places listed on the 
National Register of Historic Places that may be adversely affected by 
the proposed operation, you must describe the measures to be used--
    (1) To prevent adverse impacts, or
    (2) If a person has valid existing rights, as determined under 
Sec.  761.16 of this chapter, or if joint agency approval is to be 
obtained under Sec.  761.17(d) of this chapter, to minimize adverse 
impacts.
    (b) The regulatory authority may require the applicant to protect 
historic or archeological properties listed on or eligible for listing 
on the National Register of Historic Places through appropriate 
mitigation and treatment measures. Appropriate mitigation and treatment 
measures may be required to be taken after permit issuance, provided 
that the required measures are completed before the properties are 
affected by any mining operation.


Sec.  780.33  What information must I provide concerning the relocation 
or use of public roads?

    Your application must describe, with appropriate maps and cross-
sections, the measures to be used to ensure that the interests of the 
public and landowners affected are protected if, under Sec.  761.14 of 
this chapter, you seek to have the regulatory authority approve--
    (a) Conducting the proposed surface mining activities within 100 
feet of the right-of-way line of any public road, except where mine 
access or haul roads join that right-of-way; or
    (b) Relocating a public road.


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

    (a) Applicability. This section applies to you, the permit 
applicant, if you propose to generate excess spoil as part of your 
operation.
    (b) Demonstration of minimization of excess spoil. (1) You must 
submit a demonstration, with supporting calculations and other 
documentation, that the operation has been designed to minimize, to the 
extent possible, the volume of excess spoil that the operation will 
generate.
    (2) The demonstration under paragraph (b)(1) of this section must 
explain, in quantitative terms, how the maximum amount of overburden 
will be returned to the mined-out area after considering--
    (i) Applicable regulations concerning backfilling, compaction, 
grading, and restoration of the approximate original contour.
    (ii) Safety and stability needs and requirements.
    (iii) The need for access and haul roads with their attendant 
drainage structures and safety berms during mining and reclamation. You 
may construct roads and their attendant drainage structures and safety 
berms on the perimeter of the backfilled area as necessary to conduct 
surface coal mining and reclamation operations, but, when the roads are 
no longer needed to support heavy equipment traffic, you must reduce 
the total width of roads and their attendant drainage structures and 
berms to be retained as part of the postmining land use to no more than 
20 feet unless you demonstrate an essential need for a greater width 
for the postmining land use.
    (iv) Needs and requirements associated with revegetation and the 
proposed postmining land use.
    (v) Any other relevant regulatory requirements, including those 
pertaining to protection of water quality and fish, wildlife, and 
related environmental values.
    (3) When necessary to avoid or minimize construction of excess 
spoil fills on undisturbed land, paragraph (b)(2)(i) of this section 
does not prohibit the placement of what would otherwise be excess spoil 
on the mined-out area to heights in excess of the premining elevation, 
provided that the final surface configuration is compatible with the 
surrounding terrain and generally resembles landforms found in the 
surrounding area.
    (4) You may not create a permanent impoundment under Sec.  
816.49(b) of this chapter or place coal combustion residues or noncoal 
materials in the mine excavation if doing so would result in the 
creation of excess spoil.
    (c) Preferential use of preexisting benches for excess spoil 
disposal. To the extent that your proposed operation will generate 
excess spoil, you must maximize the placement of excess spoil on 
preexisting benches in the vicinity of the proposed permit area in 
accordance with Sec.  816.74 of this chapter rather than constructing 
excess spoil fills on previously undisturbed land.
    (d) Fill capacity demonstration. You must submit a demonstration, 
with supporting calculations and other documentation, 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 calculated under paragraph (b) of this section.
    (e) Requirements related to perennial and intermittent streams. You 
must comply with the requirements of Sec.  780.28 of this part 
concerning activities in or near perennial or intermittent streams if 
you propose to construct an excess spoil fill in or within 100 feet of 
a perennial or intermittent stream. The 100-foot distance must be 
measured horizontally on a line perpendicular to the stream, beginning 
at the ordinary high water mark.
    (f) Location and profile. (1) You must submit maps and cross-
section drawings or models showing the location and profile of all 
proposed excess spoil fills.
    (2) You must locate fills on the most moderately sloping and 
naturally stable areas available. The regulatory authority will 
determine which areas are available, based upon the requirements of the 
Act and this chapter.
    (3) Whenever possible, you must place fills on or above a natural 
terrace, bench, or berm if that location would provide additional 
stability and prevent mass movement.
    (g) Design plans. You must submit detailed design plans, including 
appropriate maps and cross-section drawings, for each proposed fill, 
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

[[Page 93352]]

appurtenant structures using current prudent engineering practices and 
any additional design criteria established by the regulatory authority.
    (h) Geotechnical investigation. You must submit the results of a 
geotechnical investigation, with supporting calculations and analyses, 
of the site of each proposed fill, with the exception of those sites at 
which excess spoil will be placed only on a preexisting bench under 
Sec.  816.74 of this chapter. The information submitted must include--
    (1) Sufficient foundation investigations, as well as any necessary 
laboratory testing of foundation material, to determine the design 
requirements for foundation stability for each site.
    (2) A description of the character of the bedrock and any adverse 
geologic conditions in the area of the proposed fill.
    (3) The geographic coordinates and a narrative description of all 
springs, seepage, mine discharges, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed fill.
    (4) An analysis of the potential effects of any underground mine 
workings within the proposed permit and adjacent areas, including the 
effects of any subsidence that may occur as a result of previous, 
existing, and future underground mining operations.
    (5) A technical description of the rock materials to be used in the 
construction of fills underlain by a rock drainage blanket.
    (6) Stability analyses that address static and seismic conditions. 
The analyses must include, but are not limited to, strength parameters, 
pore pressures and long-term seepage conditions. The analyses must be 
accompanied by a description of all engineering design assumptions and 
calculations and the alternatives considered in selecting the specific 
design specifications and methods.
    (i) Operation and reclamation plans. You must submit plans for the 
construction, operation, maintenance, and reclamation of all excess 
spoil fills in accordance with the requirements of Sec. Sec.  816.71 
through 816.74 of this chapter.
    (j) Additional requirements for bench cuts or rock-toe buttresses. 
If bench cuts or rock-toe buttresses are required under Sec.  
816.71(b)(2) of this chapter, you must provide the--
    (1) Number, location, and depth of borings or test pits, which must 
be determined according to the size of the fill and subsurface 
conditions.
    (2) Engineering specifications used to design the bench cuts or 
rock-toe buttresses. Those specifications must be based upon the 
stability analyses required under paragraph (h)(6) of this section.
    (k) Design certification. A qualified registered professional 
engineer experienced in the design of earth and rock fills must certify 
that the design of each proposed fill and appurtenant structures meets 
the requirements of this section.


Sec.  780.37  What information must I provide concerning access and 
haul roads?

    (a) Design and other application requirements. (1) You, the 
applicant, must submit a map showing the location of all roads that you 
intend to construct or use within the proposed permit area, together 
with plans and drawings for each road to be constructed, used, or 
maintained within the proposed permit area.
    (2) You must include appropriate cross-sections, design drawings, 
and specifications for road widths, gradients, surfacing materials, 
cuts, fill embankments, culverts, bridges, drainage ditches, drainage 
structures, and fords and low-water crossings of perennial and 
intermittent streams.
    (3) You must demonstrate how all proposed roads will comply with 
the applicable requirements of Sec. Sec.  780.28, 816.150, and 816.151 
of this chapter.
    (4) You must identify--
    (i) Each road that you propose to locate in or within 100 feet, 
measured horizontally on a line perpendicular to the stream, beginning 
at the ordinary high water mark, of a perennial or intermittent stream.
    (ii) Each proposed ford of a perennial or intermittent stream that 
you plan to use as a temporary route during road construction.
    (iii) Any plans to alter or relocate a natural stream channel.
    (iv) Each proposed low-water crossing of a perennial or 
intermittent stream channel.
    (5) You must explain why the roads, fords, and stream crossings 
identified in paragraph (a)(4) of this section are necessary and how 
they comply with the applicable requirements of Sec.  780.28 of this 
part and Sec. Sec.  816.150 and 816.151 of this chapter.
    (6) You must describe the plans to remove and reclaim each road 
that would not be retained as part of the postmining land use, and 
provide a schedule for removal and reclamation.
    (b) Primary road certification. The plans and drawings for each 
primary road must be prepared by, or under the direction of, and 
certified by a qualified registered professional engineer, or in any 
state that authorizes land surveyors to certify the design of primary 
roads, a qualified registered professional land surveyor, with 
experience in the design and construction of roads, as meeting the 
requirements of this chapter; current, prudent engineering practices; 
and any design criteria established by the regulatory authority.
    (c) Standard design plans. The regulatory authority may establish 
engineering design standards for primary roads through the regulatory 
program approval process, in lieu of engineering tests, to establish 
compliance with the minimum static safety factor of 1.3 for all 
embankments specified in Sec.  816.151(c) of this chapter.


Sec.  780.38  What information must I provide concerning support 
facilities?

    You must submit a description, plans, and drawings for each support 
facility to be constructed, used, or maintained within the proposed 
permit area. The plans and drawings must include a map, appropriate 
cross-sections, design drawings, and specifications sufficient to 
demonstrate compliance with Sec.  816.181 of this chapter for each 
facility.

0
25. Lift the suspensions of Sec. Sec.  783.21, 783.25(a)(3), 
783.25(a)(8), and 783.25(a)(9) and revise part 783 to read as follows:

Part 783--Underground Mining Permit Applications--Minimum 
Requirements for Information on Environmental Resources and 
Conditions

Sec.
783.1 What does this part do?
783.2 What is the objective of this part?
783.4 What responsibilities do I and government agencies have under 
this part?
783.10 Information collection.
783.11 [Reserved]
783.12 [Reserved]
783.17 What information on cultural, historic, and archeological 
resources must I include in my permit application?
783.18 What information on climate must I include in my permit 
application?
783.19 What information on vegetation must I include in my permit 
application?
783.20 What information on fish and wildlife resources must I 
include in my permit application?
783.21 What information on soils must I include in my permit 
application?
783.22 What information on land use and productivity must I include 
in my permit application?
783.24 What maps, plans, and cross-sections must I submit with my 
permit application?
783.25 [Reserved]
783.26 May I submit permit application information in increments as 
mining progresses?


[[Page 93353]]


    Authority: 30 U.S.C. 1201 et seq. and 54 U.S.C. 300101 et seq.


Sec.  783.1  What does this part do?

    This part establishes the minimum requirements for the descriptions 
of environmental resources and conditions that you must include in an 
application for a permit to conduct underground mining activities.


Sec.  783.2  What is the objective of this part?

    The objective of this part is to ensure that you, the permit 
applicant, provide the regulatory authority with a complete and 
accurate description of the environmental resources that may be 
impacted or affected by proposed underground mining activities and the 
environmental conditions that exist within the proposed permit and 
adjacent areas.


Sec.  783.4  What responsibilities do I and government agencies have 
under this part?

    (a) You, the permit applicant, must provide all information 
required by this part in your application, except when this part 
specifically exempts you from doing so.
    (b) State and federal government agencies are responsible for 
providing information for permit applications to the extent that this 
part specifically requires that they do so.


Sec.  783.10  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 it control number 1029-0035. The information 
is being collected to meet the requirements of sections 507 and 508 of 
SMCRA, which require that each permit application include a description 
of the premining environmental resources within and around the proposed 
permit area. The regulatory authority uses this information as a 
baseline for evaluating the impacts of mining. You, the permit 
applicant, 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. Send comments regarding burden estimates or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to the Office of Surface Mining Reclamation and 
Enforcement, Information Collection Clearance Officer, Room 203-SIB, 
1951 Constitution Avenue NW., Washington, DC 20240.


Sec.  783.11  [Reserved]


Sec.  783.12  [Reserved]


Sec.  783.17  What information on cultural, historic, and archeological 
resources must I include in my permit application?

    (a) Your permit application must describe the nature of cultural, 
historic, and archeological resources listed or eligible for listing on 
the National Register of Historic Places and known archeological sites 
within the proposed permit and adjacent areas. The description must be 
based on all available information, including, but not limited to, 
information from the State Historic Preservation Officer and from local 
archeological, historical, and cultural preservation agencies.
    (b) The regulatory authority may require you, the applicant, to 
identify and evaluate important historic and archeological resources 
that may be eligible for listing on the National Register of Historic 
Places by--
    (1) Collecting additional information,
    (2) Conducting field investigations, or
    (3) Completing other appropriate analyses.


Sec.  783.18  What information on climate must I include in my permit 
application?

    The regulatory authority may require that your permit application 
contain a statement of the climatic factors that are representative of 
the proposed permit area, including--
    (a) The average seasonal precipitation.
    (b) The average direction and velocity of prevailing winds.
    (c) Seasonal temperature ranges.
    (d) Additional data that the regulatory authority deems necessary 
to ensure compliance with the requirements of this subchapter.


Sec.  783.19  What information on vegetation must I include in my 
permit application?

    (a) You must identify, describe, and map existing vegetation types 
and plant communities within the proposed permit area. If you propose 
to use reference areas for purposes of determining revegetation success 
under Sec.  817.116 of this chapter, you also must identify, describe, 
and map existing vegetation types and plant communities within any 
proposed reference areas.
    (b) The description and map required under paragraph (a) of this 
section must--
    (1) Be in sufficient detail to assist in preparation of the 
revegetation plan under Sec.  784.12(g) of this chapter and provide a 
baseline for comparison with postmining vegetation;
    (2) Be adequate to evaluate whether the vegetation provides 
important habitat for fish and wildlife and whether the proposed permit 
area contains native plant communities of local or regional 
significance;
    (3) Identify areas with significant populations of non-native 
invasive or noxious species; and
    (4) Delineate all wetlands and all areas bordering streams that 
either support or are capable of supporting hydrophytic or hydrophilic 
vegetation or vegetation typical of floodplains.
    (c) If the vegetation on the proposed permit area has been altered 
by human activity, you must describe the native vegetation and plant 
communities typical of that area in the absence of human alterations.


Sec.  783.20  What information on fish and wildlife resources must I 
include in my permit application?

    (a) General requirements. Your permit application must include 
information on fish and wildlife resources for the proposed permit and 
adjacent areas, including all species of fish, wildlife, plants, and 
other life forms listed or proposed for listing under the Endangered 
Species Act of 1973, 30 U.S.C. 1531 et seq. The adjacent area must 
include all lands and waters likely to be affected by the proposed 
operation.
    (b) Scope and level of detail. The regulatory authority will 
determine the scope and level of detail for this information in 
coordination with state and federal agencies with responsibilities for 
fish and wildlife. The scope and level of detail must be sufficient to 
design the protection and enhancement plan required under Sec.  784.16 
of this chapter.
    (c) Site-specific resource information requirements. Your 
application must include site-specific resource information if the 
proposed permit area or the adjacent area contains or is likely to 
contain one or more of the following--
    (1) Species listed or proposed for listing as threatened or 
endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq., or designated or proposed critical habitat under that law. When 
these circumstances exist, the site-specific resource information must 
include a description of the effects of future non-federal activities 
that are reasonably certain to occur within the proposed permit and 
adjacent areas.
    (2) Species or habitat protected by state or tribal endangered 
species statutes and regulations.
    (3) Habitat of unusually high value for fish and wildlife, which 
may include wetlands, riparian areas, cliffs that provide nesting sites 
for raptors,

[[Page 93354]]

significant migration corridors, specialized reproduction or wintering 
areas, areas offering special shelter or protection, and areas that 
support populations of endemic species that are vulnerable because of 
restricted ranges, limited mobility, limited reproductive capacity, or 
specialized habitat requirements.
    (4) Other species or habitat identified through interagency 
coordination as requiring special protection under state, tribal, or 
federal law, including species identified as sensitive by a state, 
tribal, or federal agency.
    (5) Perennial or intermittent streams.
    (6) Native plant communities of local or regional ecological 
significance.


Sec.  783.21  What information on soils must I include in my permit 
application?

    Your permit application must include--
    (a) The results of a reconnaissance inspection to determine whether 
the proposed permit area may contain prime farmland historically used 
for cropland, as required by Sec.  785.17(b)(1) of this chapter.
    (b)(1) A map showing the soil mapping units located within the 
proposed permit area, if the National Cooperative Soil Survey has 
completed and published a soil survey of the area.
    (2) The applicable soil survey information that the Natural 
Resources Conservation Service maintains for the soil mapping units 
identified in paragraph (b)(1) of this section. You may provide this 
information either in paper form or via a link to the appropriate 
element of the Natural Resources Conservation Service's soil survey Web 
site.
    (c) A description of soil depths within the proposed permit area.
    (d) Detailed information on soil quality, if you seek approval for 
the use of soil substitutes or supplements under Sec.  784.12(e) of 
this chapter.
    (e) The soil survey information required by Sec.  785.17(b)(3) of 
this chapter if the reconnaissance inspection conducted under paragraph 
(a) of this section indicates that prime farmland historically used for 
cropland may be present.
    (f) Any other information on soils that the regulatory authority 
finds necessary to determine land capability.


Sec.  783.22  What information on land use and productivity must I 
include in my permit application?

    Your permit application must contain a statement of the condition, 
capability, and productivity of the land within the proposed permit 
area, including--
    (a)(1) A map and narrative identifying and describing the land use 
or uses in existence at the time of the filing of the application.
    (2) A description of the historical uses of the land to the extent 
that this information is readily available or can be inferred from the 
uses of other lands in the vicinity.
    (3) For any previously mined area within the proposed permit area, 
a description of the land uses in existence before any mining, to the 
extent that such information is available.
    (b) A narrative analysis of--
    (1) The capability of the land before any mining to support a 
variety of uses, giving consideration to soil and foundation 
characteristics, topography, vegetative cover, and the hydrology of the 
proposed permit area; and
    (2) The productivity of the proposed permit area before mining, 
expressed as average yield of food, fiber, forage, or wood products 
obtained under high levels of management, as determined by--
    (i) Actual yield data; or
    (ii) Yield estimates for similar sites based on current data from 
the U.S. Department of Agriculture, state agricultural universities, or 
appropriate state natural resources or agricultural agencies.
    (c) Any additional information that the regulatory authority deems 
necessary to determine the condition, capability, and productivity of 
the land within the proposed permit area.


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

    (a) In addition to the maps, plans, and information required by 
other sections of this part, your permit application must include maps 
and, when appropriate, plans and cross-sections showing--
    (1) All boundaries of lands and names of present owners of record 
of those lands, both surface and subsurface, included in or contiguous 
to the proposed permit area.
    (2) The boundaries of land within the proposed permit area upon 
which you have the legal right to enter and begin underground mining 
activities.
    (3) The boundaries of all areas that you anticipate affecting over 
the estimated total life of the underground mining activities, with a 
description of the size, sequence, and timing of the mining of subareas 
for which you anticipate seeking additional permits or expansion of an 
existing permit in the future.
    (4) The location and current use of all buildings within the 
proposed permit area or within 1,000 feet of the proposed permit area.
    (5) The location of surface and subsurface manmade features within, 
passing through, or passing over the proposed permit and adjacent 
areas, including, but not limited to, highways, electric transmission 
lines, pipelines, constructed drainageways, irrigation ditches, and 
agricultural drainage tile fields.
    (6) The location and boundaries of any proposed reference areas for 
determining the success of revegetation.
    (7) The location and ownership of existing wells, springs, and 
other groundwater resources within the proposed permit and adjacent 
areas. You may provide ownership information in a table cross-
referenced to a map if approved by the regulatory authority.
    (8) The location and depth (if available) of each water well within 
the proposed permit and adjacent areas. You may provide information 
concerning depth in a table cross-referenced to a map if approved by 
the regulatory authority.
    (9) The name, location, ownership, and description of all surface-
water bodies and features, such as perennial, intermittent, and 
ephemeral streams; ponds, lakes, and other impoundments; wetlands; and 
natural drainageways, within the proposed permit and adjacent areas. To 
the extent appropriate, you may provide this information in a table 
cross-referenced to a map if approved by the regulatory authority.
    (10) The locations of water supply intakes for current users of 
surface water flowing into, from, and within a hydrologic area defined 
by the regulatory authority.
    (11) The location of any public water supplies and the extent of 
any associated wellhead protection zones located within one-half mile, 
measured horizontally, of the proposed permit area or the area 
overlying the proposed underground workings. Both you and the 
regulatory authority must keep this information confidential when 
required by state law or when otherwise necessary for safety and 
security purposes and protection of the integrity of public water 
supplies.
    (12) The location of all existing and proposed discharges to any 
surface-water body within the proposed permit and adjacent areas.
    (13) The location of any discharge into or from an active, 
inactive, or abandoned surface or underground mine, including, but not 
limited to, a mine-water treatment or pumping facility, that is 
hydrologically connected to the site of the proposed operation or that 
is located within one-half mile,

[[Page 93355]]

measured horizontally, of either the proposed permit area or the area 
overlying the proposed underground workings.
    (14) Each public road located in or within 100 feet of the proposed 
permit area.
    (15) The boundaries of any public park and locations of any 
cultural or historical resources listed or eligible for listing in the 
National Register of Historic Places and known archeological sites 
within the permit and adjacent areas.
    (16) Each cemetery that is located in or within 100 feet of the 
proposed permit area.
    (17) Any land within the proposed permit area which is within the 
boundaries of any units of the National System of Trails or the Wild 
and Scenic Rivers System, including study rivers designated under 
section 5(a) of the Wild and Scenic Rivers Act.
    (18) The elevations, locations, and geographic coordinates of test 
borings and core samplings. You may provide this information in a table 
cross-referenced to a map if approved by the regulatory authority.
    (19) The location and extent of subsurface water, if encountered, 
within the proposed permit and adjacent areas. This information must 
include, but is not limited to, the elevation of the water table, the 
areal and vertical distribution of aquifers, and maximum and minimum 
variations in hydraulic head in different aquifers. You must provide 
this information on appropriately-scaled cross-sections or maps, in a 
narrative, or a combination of these methods, whichever format best 
displays this information to the satisfaction of the regulatory 
authority.
    (20) The elevations, locations, and geographic coordinates of 
monitoring stations used to gather data on water quality and quantity 
and on fish and wildlife in preparation of the application. You may 
provide this information in a table cross-referenced to a map if 
approved by the regulatory authority.
    (21) The nature, depth, thickness, and commonly used names of the 
coal seams to be mined.
    (22) Any coal crop lines within the permit and adjacent areas and 
the strike and dip of the coal to be mined.
    (23) The location and extent of known workings of active, inactive, 
or abandoned underground mines within or underlying the proposed permit 
and adjacent areas.
    (24) Any underground mine openings to the surface within the 
proposed permit and adjacent areas.
    (25) The location and extent of existing or previously surface-
mined areas within the proposed permit area.
    (26) The location and dimensions of existing areas of spoil, coal 
mine waste, noncoal mine waste disposal sites, dams, embankments, other 
impoundments, and water treatment facilities within the proposed permit 
area.
    (27) The location and, if available, the depth of all gas and oil 
wells within the proposed permit and adjacent areas. You must identify 
the lateral extent of the well bores unless that information is 
confidential under state law. You may provide information concerning 
well depth in a table cross-referenced to a map if approved by the 
regulatory authority.
    (28) Other relevant information required by the regulatory 
authority.
    (b) Maps, plans, and cross-sections required by paragraph (a) of 
this section must be--
    (1) 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 
such maps, plans, and cross-sections, a qualified registered 
professional land surveyor, with assistance from experts in related 
fields such as landscape architecture.
    (2) Updated when required by the regulatory authority.
    (c) The regulatory authority may require that you submit the 
materials required by this section in a digital format that includes 
all necessary metadata.


Sec.  783.25  [Reserved]


Sec.  783.26  May I submit permit application information in increments 
as mining progresses?

    (a) You may request that the regulatory authority approve a 
schedule for incremental submission of the information required by this 
part, based on the anticipated progress and impact of underground 
mining activities.
    (b) At its discretion, the regulatory authority may approve the 
proposed schedule, provided that--
    (1) Each increment is clearly defined and includes at least 5 years 
of anticipated mining.
    (2) The schedule includes a map showing the limits of underground 
mining activity under each increment. You must establish those limits 
in a manner that will prevent any impact on the succeeding increment 
before the regulatory authority approves mining within that increment.
    (3) The schedule requires that you submit all required data under 
this part for each successive increment at least one year in advance of 
any anticipated impact of underground mining upon that increment.
    (4) The regulatory authority conditions the permit to--
    (i) Require that you reevaluate the adequacy of the PHC 
determination under Sec.  784.20 of this chapter and the hydrologic 
reclamation plan under Sec.  784.22 of this chapter as part of each 
submission under paragraph (b)(3) of this section.
    (ii) Prohibit the conduct of any underground mining activity that 
might impact an increment before the regulatory authority reviews the 
information submitted for that increment, updates the CHIA prepared 
under Sec.  784.21 of this chapter to incorporate that information, and 
determines that the findings made under Sec.  773.15 of this chapter 
remain accurate.

0
26. Revise part 784 to read as follows:

Part 784--Underground Mining Permit Applications--Minimum 
Requirements for Operation and Reclamation Plans

Sec.
784.1 What does this part do?
784.2 What is the objective of this part?
784.4 What responsibilities do I and government agencies have under 
this part?
784.10 Information collection.
784.11 What must I include in the general description of my proposed 
operations?
784.12 What must the reclamation plan include?
784.13 What additional maps and plans must I include in the 
reclamation plan?
784.14 What requirements apply to the use of existing structures?
784.15 [Reserved]
784.16 What must I include in the fish and wildlife protection and 
enhancement plan?
784.17 [Reserved]
784.18 [Reserved]
784.19 What baseline information on hydrology, geology, and aquatic 
biology must I provide?
784.20 How must I prepare the determination of the probable 
hydrologic consequences of my proposed operation (PHC 
determination)?
784.21 What requirements apply to preparation and review of the 
cumulative hydrologic impact assessment (CHIA)?
784.22 What information must I include in the hydrologic reclamation 
plan and what information must I provide on alternative water 
sources?
784.23 What information must I include in plans for the monitoring 
of groundwater, surface water, and the biological condition of 
streams during and after mining?
784.24 What requirements apply to the postmining land use?

[[Page 93356]]

784.25 What information must I provide for siltation structures, 
impoundments, and refuse piles?
784.26 What information must I provide if I plan to return coal 
processing waste to abandoned underground workings?
784.27 What additional permitting requirements apply to proposed 
activities in or through ephemeral streams?
784.28 What additional permitting requirements apply to proposed 
surface activities in, through, or adjacent to a perennial or 
intermittent stream?
784.29 What information must I include in the surface-water runoff 
control plan?
784.30 When must I prepare a subsidence control plan and what 
information must that plan include?
784.31 What information must I provide concerning the protection of 
publicly owned parks and historic places?
784.33 What information must I provide concerning the relocation or 
use of public roads?
784.35 What information must I provide concerning the minimization 
and disposal of excess spoil?
784.37 What information must I provide concerning access and haul 
roads?
784.38 What information must I provide concerning support 
facilities?
784.40 May I submit permit application information in increments as 
mining progresses?
784.200 [Reserved]

    Authority: 30 U.S.C. 1201 et seq. and 54 U.S.C. 300101 et seq.


Sec.  784.1  What does this part do?

    This part establishes the minimum requirements for the operation 
and reclamation plan portions of applications for a permit to conduct 
underground mining activities, except to the extent that part 785 of 
this subchapter establishes different requirements.


Sec.  784.2  What is the objective of this part?

    The objective of this part is to ensure that you, the permit 
applicant, provide the regulatory authority with comprehensive and 
reliable information on how you propose to conduct underground mining 
activities and reclaim the disturbed area in compliance with the Act, 
this chapter, and the regulatory program.


Sec.  784.4  What responsibilities do I and government agencies have 
under this part?

    (a) You, the permit applicant, must provide to the regulatory 
authority all information required by this part, except where 
specifically exempted in this part.
    (b) State and federal governmental agencies must provide 
information needed for permit applications to the extent that this part 
specifically requires that they do so.


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 it control 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. You, the permit applicant, 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. Send comments regarding burden 
estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 203-SIB, 1951 Constitution Avenue NW., Washington, DC 
20240.


Sec.  784.11  What must I include in the general description of my 
proposed operations?

    Your application must contain a description of the mining 
operations that you propose to conduct during the life of the mine, 
including, at a minimum, the following--
    (a) A narrative description of the--
    (1) Type and method of coal mining procedures and proposed 
engineering techniques.
    (2) Anticipated annual and total number of tons of coal to be 
produced.
    (3) Major equipment to be used for all aspects of the proposed 
operations.
    (b) A narrative explaining the construction, modification, use, 
maintenance, and removal (unless you can satisfactorily explain why 
retention is necessary or appropriate for the postmining land use 
specified in the application under Sec.  784.24 of this part) of the 
following facilities:
    (1) Dams, embankments, and other impoundments.
    (2) Overburden and soil handling and storage areas and structures.
    (3) Coal removal, handling, storage, cleaning, and transportation 
areas and structures.
    (4) Spoil, coal processing waste, underground development waste, 
and noncoal mine waste removal, handling, storage, transportation, and 
disposal areas and structures.
    (5) Mine facilities, including ventilation boreholes, fans, and 
access roads.
    (6) Water pollution control facilities.


Sec.  784.12  What must the reclamation plan include?

    (a) General requirements. Your application must contain a plan for 
the reclamation of the lands to be disturbed within the proposed permit 
area. The plan must show how you will comply with the reclamation 
requirements of the applicable regulatory program. At a minimum, the 
plan must include all information required under this part and part 785 
of this chapter.
    (b) Reclamation timetable. The reclamation plan must contain a 
detailed timetable for the completion of each major step in the 
reclamation process including, but not limited to--
    (1) Backfilling.
    (2) Grading.
    (3) Establishment of the surface drainage pattern and stream-
channel configuration approved in the permit, including construction of 
appropriately-designed perennial, intermittent, and ephemeral stream 
channels to replace those removed by mining, to the extent and in the 
form required by Sec. Sec.  784.27, 784.28, 817.56, and 817.57 of this 
chapter.
    (4) Soil redistribution.
    (5) Planting of all vegetation in accordance with the revegetation 
plan approved in the permit, including establishment of streamside 
vegetative corridors along the banks of perennial, intermittent, and 
ephemeral streams when required by Sec. Sec.  817.56(c) and 817.57(d) 
of this chapter.
    (6) Demonstration of revegetation success.
    (7) Demonstration of restoration of the ecological function of all 
reconstructed perennial and intermittent stream segments.
    (8) Application for each phase of bond release under Sec.  800.42 
of this chapter.
    (c) Reclamation cost estimate. The reclamation plan must contain a 
detailed estimate of the cost of reclamation, including both direct and 
indirect costs, of those elements of the proposed operations that are 
required to be covered by a performance bond under part 800 of this 
chapter, with supporting calculations for the estimates. You must use 
current standardized construction cost estimation methods and equipment 
cost guides or up-to-date actual contracting costs incurred by the 
regulatory authority for similar activities to prepare this estimate.

[[Page 93357]]

    (d) Backfilling and grading plan. (1) The reclamation plan must 
contain a plan for backfilling surface excavations, compacting the 
backfill, and grading the disturbed area, with contour maps, models, or 
cross-sections that show the anticipated final surface configuration of 
the proposed permit area, including drainage patterns, in accordance 
with Sec. Sec.  817.102 through 817.107 of this chapter, using the best 
technology currently available.
    (2) The backfilling and grading plan must describe in detail how 
you will conduct backfilling and related reclamation activities, 
including how you will--
    (i) Compact spoil to reduce infiltration to minimize leaching and 
discharges of parameters of concern.
    (ii) Limit compaction of topsoil and soil materials in the root 
zone to the minimum necessary to achieve stability. The plan also must 
identify measures that will be used to alleviate soil compaction if 
necessary.
    (iii) Handle acid-forming and toxic-forming materials, if present, 
to prevent the formation of acid or toxic drainage from acid-forming 
and toxic-forming materials within the overburden. The plan must be 
consistent with paragraph (n) of this section and Sec.  817.38 of this 
chapter.
    (e) Soil handling plan.--(1) General requirements. (i) The 
reclamation plan must include a plan and schedule for removal, storage, 
and redistribution of topsoil, subsoil, and other material to be used 
as a final growing medium in accordance with Sec.  817.22 of this 
chapter. It also must include a plan and schedule for removal, storage, 
and redistribution or other use of organic matter in accordance with 
Sec.  817.22(f) of this chapter.
    (ii) Except as provided in paragraphs (e)(1)(iii) and (iv) of this 
section, the plan submitted under paragraph (e)(1)(i) of this section 
must require that the B soil horizon, the C soil horizon, and other 
underlying strata, or portions of those soil horizons and strata, be 
removed separately, stockpiled if necessary, and redistributed to the 
extent and in the manner needed to achieve the optimal rooting depths 
required to restore premining land use capability and to comply with 
the revegetation requirements of Sec. Sec.  817.111 and 817.116 of this 
chapter.
    (iii) The plan submitted under paragraph (e)(1)(i) of this section 
need not require salvage of those soil horizons which you demonstrate, 
to the satisfaction of the regulatory authority, are inferior to other 
overburden materials as a plant growth medium, provided you comply with 
the soil substitute requirements of paragraph (e)(2) of this section.
    (iv) The plan submitted under paragraph (e)(1)(i) of this section 
may allow blending of the B soil horizon, the C soil horizon, and 
underlying strata, or portions thereof, to the extent that research or 
prior experience under similar conditions has demonstrated that 
blending will not adversely affect soil productivity.
    (v) The plan submitted under paragraph (e)(1)(i) of this section 
must explain how you will handle and, if necessary, store soil 
materials to avoid contamination by acid-forming or toxic-forming 
materials and to minimize deterioration of desirable soil 
characteristics.
    (2) Substitutes and supplements. (i) You must identify each soil 
horizon for which you propose to use appropriate overburden materials 
as either a supplement to or a substitute for the existing topsoil or 
subsoil on the proposed permit area. For each of those horizons, you 
must demonstrate, and the regulatory authority must find in writing, 
that--
    (A)(1) The quality of the existing topsoil and subsoil is inferior 
to that of the best overburden materials available; or
    (2) The quantity of the existing topsoil and subsoil on the 
proposed permit area is insufficient to provide an optimal rooting 
depth. In this case, the plan must require that all available existing 
topsoil and favorable subsoil, regardless of the amount, be removed, 
stored, and redistributed as part of the final growing medium unless 
the conditions described in paragraph (e)(2)(i)(A)(1) of this section 
also apply.
    (B) The use of the overburden materials that you have selected, in 
combination with or in place of the topsoil or subsoil, will result in 
a soil medium that is more suitable than the existing topsoil and 
subsoil to support and sustain vegetation consistent with the 
postmining land use and the revegetation plan under paragraph (g) of 
this section and that will provide a rooting depth that is superior to 
the existing topsoil and subsoil.
    (C) The overburden materials that you select for use as a soil 
substitute or supplement are the best materials available to support 
and sustain vegetation consistent with the postmining land use and the 
revegetation plan under paragraph (g) of this section.
    (ii) For purposes of paragraph (e)(2)(i) of this section, the 
regulatory authority will specify the--
    (A) Suitability criteria for substitutes and supplements.
    (B) Chemical and physical analyses, field trials, or greenhouse 
tests that you must conduct to make the demonstration required by 
paragraph (e)(2)(ii) of this section.
    (C) Sampling objectives and techniques and the analytical 
techniques that you must use for purposes of paragraph (e)(2)(iii)(B) 
of this section.
    (iii) At a minimum, the demonstrations required by paragraph 
(e)(2)(ii) of this section must include--
    (A) The physical and chemical soil characteristics and root zones 
needed to support and sustain the type of vegetation to be established 
on the reclaimed area.
    (B) A comparison and analysis of the thickness, total depth, 
texture, percent coarse fragments, pH, and areal extent of the 
different kinds of soil horizons and overburden materials available 
within the proposed permit area, based upon a statistically valid 
sampling procedure.
    (v) You must include a plan for testing and evaluating overburden 
materials during both removal and redistribution to ensure that only 
materials approved for use as soil substitutes or supplements are 
removed and redistributed.
    (f) Surface stabilization plan. The reclamation plan must contain a 
plan for stabilizing road surfaces, redistributed soil materials, and 
other exposed surface areas to effectively control erosion and air 
pollution attendant to erosion in accordance with Sec. Sec.  817.95, 
817.150, and 817.151 of this chapter.
    (g) Revegetation plan. (1) The reclamation plan must contain a plan 
for revegetation consistent with Sec. Sec.  817.111 through 817.116 of 
this chapter, including, but not limited to, descriptions of--
    (i) The schedule for revegetation of the area to be disturbed.
    (ii) The site preparation techniques that you plan to use, 
including the measures that you will take to avoid or, when avoidance 
is not possible, to minimize and alleviate compaction of the root zone 
during backfilling, grading, soil redistribution, and planting.
    (iii) What soil tests you will perform, together with a statement 
as to whether you will apply lime, fertilizer, or other amendments in 
response to those tests before planting or seeding.
    (iv) The species that you will plant to achieve temporary erosion 
control or, if you do not intend to establish a temporary vegetative 
cover, a description of other soil stabilization measures that you will 
implement in lieu of planting a temporary cover.

[[Page 93358]]

    (v) The species that you will plant and the seeding and stocking 
rates and planting arrangements that you will use to achieve or 
complement the postmining land use, enhance fish and wildlife habitat, 
and achieve the streamside vegetative corridor requirements of 
Sec. Sec.  817.56(c) and 817.57(d) of this chapter, when applicable.
    (A) Revegetation plans that involve the establishment of trees and 
shrubs must include site-specific planting prescriptions for canopy 
trees, understory trees and shrubs, and herbaceous ground cover 
compatible with establishment of trees and shrubs.
    (B) To the extent practicable and consistent with other 
revegetation and regulatory program requirements, the species mix must 
include native pollinator-friendly plants and the planting arrangements 
must promote the establishment of pollinator-friendly habitat.
    (vi) The planting and seeding techniques that you will use.
    (vii) Whether you will apply mulch and, if so, the type of mulch 
and the method of application.
    (viii) Whether you plan to conduct irrigation or apply fertilizer 
after the first growing season and, if so, to what extent and for what 
length of time.
    (ix) Any normal husbandry practices that you plan to use in 
accordance with Sec.  817.115(d) of this chapter.
    (x) The standards and evaluation techniques that you propose to use 
to determine the success of revegetation in accordance with Sec.  
817.116 of this chapter.
    (xi) The measures that you will take to avoid the establishment of 
invasive species on reclaimed areas or to control those species if they 
do become established.
    (2) Except as provided in paragraphs (g)(4) and (5) of this 
section, the species and planting rates and arrangements selected as 
part of the revegetation plan must be designed to create a diverse, 
effective, permanent vegetative cover that is consistent with the 
native plant communities and natural succession process described in 
the permit application in accordance with Sec.  783.19 of this chapter.
    (3) The species selected as part of the revegetation plan must--
    (i) Be native to the area. The regulatory authority may approve the 
use of introduced species as part of the permanent vegetative cover for 
the site only if--
    (A) The introduced species are both non-invasive and necessary to 
achieve the postmining land use;
    (B) Planting of native species would be inconsistent with the 
approved postmining land use; and
    (C) The approved postmining land use is implemented before the 
entire bond amount for the area has been fully released under 
Sec. Sec.  800.40 through 800.43 of this chapter.
    (ii) Be capable of stabilizing the soil surface from erosion to the 
extent that control of erosion with herbaceous ground cover is 
consistent with establishment of a permanent vegetative cover that 
resembles native plant communities in the area.
    (iii) Be compatible with the approved postmining land use.
    (iv) Have the same seasonal characteristics of growth, consistent 
with the appropriate stage of natural succession, as the native plant 
communities described in the permit application in accordance with 
Sec.  783.19 of this chapter.
    (v) Be capable of self-regeneration and natural succession.
    (vi) Be compatible with the plant and animal species of the area.
    (vii) Meet the requirements of applicable state and federal seed, 
noxious plant, and introduced species laws and regulations.
    (4) The regulatory authority may grant an exception to the 
requirements of paragraphs (g)(3)(i), (iv), and (v) of this section 
when necessary to achieve a quick-growing, temporary, stabilizing cover 
on disturbed and regraded areas, and the species selected to achieve 
this purpose will not impede the establishment of permanent vegetation.
    (5) The regulatory authority may grant an exception to the 
requirements of paragraphs (g)(2), (g)(3)(iv), and (g)(3)(v) of this 
section for those areas with a long-term, intensive, agricultural 
postmining land use.
    (6) A qualified, experienced biologist, soil scientist, forester, 
or agronomist must prepare or approve all revegetation plans.
    (h) Stream protection and reconstruction plan. The reclamation plan 
must describe how you will comply with the stream reconstruction 
requirements of Sec. Sec.  784.27 and 817.56 of this chapter for 
ephemeral streams and the stream protection, stream reconstruction, and 
functional restoration requirements of Sec. Sec.  784.28 and 817.57 of 
this chapter for perennial and intermittent streams.
    (i) Coal resource conservation plan. The reclamation plan must 
describe the measures that you will employ to maximize the use and 
conservation of the coal resource while using the best technology 
currently available to maintain environmental integrity, as required by 
Sec.  817.59 of this chapter.
    (j) Plan for disposal of noncoal waste materials. The reclamation 
plan must describe--
    (1) The type and quantity of noncoal waste materials that you 
anticipate disposing of within the proposed permit area.
    (2) How you intend to dispose of noncoal waste materials in 
accordance with Sec.  817.89 of this chapter.
    (3) The locations of any proposed noncoal waste material disposal 
sites within the proposed permit area.
    (4) The contingency plans that you have developed to preclude 
sustained combustion of combustible noncoal materials.
    (k) Management of mine openings, boreholes, and wells. The 
reclamation plan must contain a description, including appropriate 
cross-sections and maps, of the measures that you will use to seal or 
manage mine openings, and to plug, case or manage exploration holes, 
boreholes, wells and other openings within the proposed permit area, in 
accordance with Sec.  817.13 of this chapter.
    (l) Compliance with Clean Air Act and Clean Water Act. The 
reclamation plan must describe the steps that you have taken or will 
take 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 and health and 
safety standards.
    (m) Consistency with land use plans and surface owner plans. The 
reclamation plan must describe how the proposed operation is consistent 
with--
    (1) All applicable state and local land use plans and programs.
    (2) The plans of the surface landowner, to the extent that those 
plans are practicable and consistent with this chapter and with other 
applicable laws and regulations.
    (n) Handling of acid-forming and toxic-forming materials. (1) If 
the baseline geologic information collected under Sec.  784.19(e)(3) 
and (4) of this part indicates the presence of acid-forming or toxic-
forming materials, you must develop a plan to prevent any adverse 
hydrologic impacts that may result from exposure of those materials 
during either the face-up process or disposal of underground 
development waste. At a minimum the plan must--
    (i) Identify the anticipated postmining groundwater level for all 
locations at which you propose to place acid-forming or toxic-forming 
materials.
    (ii) When approved in the permit, place acid-forming and toxic-
forming

[[Page 93359]]

materials in an excess spoil fill or a coal mine waste refuse pile, 
using one or both of the following techniques, as appropriate:
    (A) Completely surround acid-forming and toxic-forming materials 
with compacted material with a hydraulic conductivity at least two 
orders of magnitude lower than the hydraulic conductivity of the 
adjacent spoil or coal mine waste.
    (B) Treat or otherwise neutralize acid-forming and toxic-forming 
materials to prevent the formation of acid or toxic mine drainage. This 
technique may include the blending of acid-forming materials with spoil 
of sufficient alkalinity to prevent the development of acid drainage.


Sec.  784.13  What additional maps and plans must I include in the 
reclamation plan?

    (a) In addition to the maps and plans required under Sec.  783.24 
and other provisions of this subchapter, your application must include 
maps, plans, and cross-sections of the proposed permit area showing--
    (1) The lands that you propose to affect throughout the life of the 
operation, including the sequence and timing of underground mining 
activities and the sequence and timing of backfilling, grading, and 
other reclamation activities to be conducted on areas where the 
operation will disturb the land surface.
    (2) Each area of land for which a performance bond or other 
equivalent guarantee will be posted under part 800 of this chapter.
    (3) Any change that the proposed operations will cause in a 
facility or feature identified under Sec.  783.24 of this chapter.
    (4) All buildings, utility corridors, and facilities to be used or 
constructed within the proposed permit area, with identification of 
those facilities that you propose to retain as part of the postmining 
land use.
    (5) Each coal storage, cleaning, processing, and loading area and 
facility.
    (6) Each temporary storage area for soil, spoil, coal mine waste, 
and noncoal mine waste.
    (7) Each water diversion, collection, conveyance, treatment, 
storage and discharge facility to be used, including the location of 
each point at which water will be discharged from the proposed permit 
area to a surface-water body and the name of that water body.
    (8) Each disposal facility for coal mine waste and noncoal mine 
waste materials.
    (9) Each feature and facility to be constructed to protect or 
enhance fish, wildlife, and related environmental values.
    (10) Each explosive storage and handling facility.
    (11) The location of each siltation structure, sedimentation pond, 
permanent water impoundment, refuse pile, and coal mine waste 
impoundment for which plans are required by Sec.  784.25 of this part, 
and the location of each excess spoil fill for which plans are required 
under Sec.  784.35 of this part.
    (12) Each segment of a perennial or intermittent stream that you 
propose to mine through, bury, or divert.
    (13) Each location in which you propose to restore a perennial or 
intermittent stream or construct a temporary or permanent diversion of 
a perennial or intermittent stream.
    (14) Each streamside vegetative corridor that you propose to 
establish.
    (15) Each segment of a perennial or intermittent stream that you 
propose to enhance under the plan submitted in accordance with Sec.  
784.16 of this part.
    (16) The location and geographic coordinates of each monitoring 
point for groundwater, surface water, and subsidence.
    (17) The location and geographic coordinates of each point at which 
you propose to monitor the biological condition of perennial and 
intermittent streams.
    (b) Except as provided in Sec. Sec.  784.25(a)(2), 784.25(a)(3), 
784.35, 817.74(c), and 817.81(c) of this chapter, maps, plans, and 
cross-sections required under paragraphs (a)(5), (6), (7), (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 such maps, plans, and cross-sections, a 
qualified, registered, professional, land surveyor, with assistance 
from experts in related fields such as landscape architecture.
    (c) The regulatory authority may require that you submit the 
materials required by paragraph (a) of this section in a digital 
format.


Sec.  784.14  What requirements apply to the use of existing 
structures?

    (a) Each application must contain a description of every existing 
structure that you propose to use in connection with or to facilitate 
surface coal mining and reclamation operations. The description must 
include--
    (1) The location of the structure.
    (2) Plans of the structure.
    (3) A description of the current condition of the structure.
    (4) The approximate dates when the structure was originally built.
    (5) A showing, including relevant monitoring data or other 
evidence, of whether the structure meets the permanent program 
performance standards of subchapter K of this chapter or, if the 
structure does not meet the performance standards of subchapter K of 
this chapter, a showing of whether the structure meets the initial 
program performance standards of subchapter B of this chapter.
    (b) Each application must contain a compliance plan for every 
existing structure that you propose to modify or reconstruct for use in 
connection with or to facilitate surface coal mining and reclamation 
operations. The compliance plan must include--
    (1) Design specifications for the modification or reconstruction of 
the structure to meet the design and performance standards of 
subchapter K of this chapter.
    (2) A schedule for the initiation and completion of any 
modification or reconstruction under paragraph (b)(1) of this section.
    (3) Provisions for monitoring the structure during and after 
modification or reconstruction to ensure that the performance standards 
of subchapter K of this chapter are met.
    (4) A demonstration that there is no significant risk of harm to 
the environment or to public health or safety during modification or 
reconstruction of the structure.


Sec.  784.15  [Reserved]


Sec.  784.16  What must I include in the fish and wildlife protection 
and enhancement plan?

    (a) General requirements. Your application must include a fish and 
wildlife protection and enhancement plan that--
    (1) Is consistent with the requirements of Sec.  817.97 of this 
chapter.
    (2) Is specific to the resources identified under Sec.  783.20 of 
this chapter.
    (3) Complies with the requirements of paragraphs (b) through (e) of 
this section.
    (b) Requirements related to the Endangered Species Act of 1973. (1) 
Paragraphs (b)(2) and (3) of this section apply when the proposed 
operation may affect species listed or proposed for listing as 
threatened or endangered under the Endangered Species Act of 1973, 16 
U.S.C. 1531 et seq., or designated or proposed critical habitat under 
that law.
    (2) You must describe the steps that you have taken or will take to 
comply with the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., 
including

[[Page 93360]]

any biological opinions developed under section 7 of that law and any 
species-specific habitat conservation plans developed in accordance 
with section 10 of that law.
    (3) The regulatory authority may not approve the permit application 
before there is a demonstration of compliance with the Endangered 
Species Act of 1973, 16 U.S.C. 1531 et seq., through one of the 
mechanisms listed in Sec.  773.15(j) of this chapter.
    (c) Protection of fish, wildlife, and related environmental values 
in general. You must describe how, to the extent possible using the 
best technology currently available, you will minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values. At 
a minimum, you must explain how you will--
    (1) Retain forest cover and other native vegetation as long as 
possible and time the removal of that vegetation to minimize adverse 
impacts on aquatic and terrestrial species.
    (2) Locate and design sedimentation ponds, utilities, support 
facilities, roads, rail spurs, and other transportation facilities to 
avoid or minimize adverse impacts on fish, wildlife, and related 
environmental values.
    (3) Except as provided under Sec.  784.12(g)(4) of this part, 
select non-invasive native species for revegetation that either promote 
or do not inhibit the long-term development of wildlife habitat.
    (4)(i) Avoid mining through wetlands or perennial or intermittent 
streams or disturbing riparian habitat adjacent to those streams. When 
avoidance is not possible, minimize--
    (A) The time during which mining and reclamation operations disrupt 
wetlands or streams or riparian habitat associated with streams;
    (B) The length of stream mined through; and
    (C) The amount of wetlands or riparian habitat disturbed by the 
operation.
    (ii) If you propose to mine through or discharge dredged or fill 
material into wetlands or streams that are subject to the jurisdiction 
of the Clean Water Act, 33 U.S.C. 1251 et seq., your application must 
identify the authorizations, certifications, and permits that you 
anticipate will be needed under the Clean Water Act and describe the 
steps that you have taken or will take to procure those authorizations, 
certifications, and permits. The regulatory authority will process your 
application and may issue the permit before you obtain all necessary 
authorizations, certifications, and permits 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. Issuance of a permit 
under subchapter G of this chapter does not authorize you to conduct 
any mining-related activity in or affecting waters subject to the 
jurisdiction of the Clean Water Act before you obtain any required 
Clean Water Act authorization, certification, or permit. Information 
submitted and analyses conducted under subchapter G of this chapter may 
inform the agency responsible for authorizations, certifications, and 
permits under the Clean Water Act, but they are not a substitute for 
the reviews, authorizations, certifications, and permits required under 
the Clean Water Act.
    (5) Implement other appropriate conservation practices such as, but 
not limited to, those identified in the technical guides published by 
the Natural Resources Conservation Service.
    (d) Enhancement measures.--(1) General requirements. (i) You must 
describe how, to the extent possible, you will use the best technology 
currently available to enhance fish, wildlife, and related 
environmental values both within and outside the area to be disturbed 
by mining activities, where practicable. Your application must identify 
the enhancement measures that you propose to implement and the lands 
upon which you propose to implement those measures. Those measures may 
include some or all the potential enhancement measures listed in 
paragraph (d)(2) of this section, but they are not limited to the 
measures listed in paragraph (d)(2) of this section.
    (ii) If your application includes no proposed enhancement measures 
under paragraph (d)(1)(i) of this section, you must explain, to the 
satisfaction of the regulatory authority, why implementation of 
enhancement measures is not practicable.
    (2) Potential enhancement measures. Potential enhancement measures 
include, but are not limited to--
    (i) Using the backfilling and grading process to create postmining 
surface features and configurations, such as functional wetlands, of 
high value to fish and wildlife.
    (ii) Designing and constructing permanent impoundments in a manner 
that will maximize their value to fish and wildlife.
    (iii) Creating rock piles and other permanent landscape features of 
value to raptors and other wildlife for nesting and shelter, to the 
extent that those features are consistent with features that existed on 
the site before any mining, the surrounding topography, and the 
approved postmining land use.
    (iv) Reestablishing native forests or other native plant 
communities, both within and outside the permit area. This may include 
restoring the native plant communities that existed before any mining, 
establishing native plant communities consistent with the native plant 
communities that are a part of the natural succession process, 
establishing native plant communities designed to restore or expand 
native pollinator populations and habitats, or establishing native 
plant communities that will support wildlife species of local, state, 
tribal, or national concern, including, but not limited to, species 
listed or proposed for listing as threatened or endangered on a state, 
tribal, or national level.
    (v) Establishing a vegetative corridor along the banks of streams 
where there is no such corridor before mining but where a vegetative 
corridor typically would exist under natural conditions. Species 
selected for planting within the corridor must be comprised of species 
native to the area, including native plants adapted to and suitable for 
planting in any floodplains or other riparian zones located within the 
corridor. Whenever possible, you should establish this corridor along 
both banks of the stream, preferably with a minimum corridor width of 
100 feet along each bank.
    (vi) Implementing conservation practices identified in 
publications, such as the technical guides published by the Natural 
Resources Conservation Service.
    (vii) Permanently fencing livestock away from perennial and 
intermittent streams and wetlands.
    (viii) Installing perches and nest boxes.
    (ix) Establishing conservation easements or deed restrictions, with 
an emphasis on preserving riparian vegetation and forested corridors 
along perennial and intermittent streams.
    (x) Providing funding to cover long-term operation and maintenance 
costs that watershed organizations incur in treating long-term 
postmining discharges from previous mining operations.
    (xi) Reclaiming previously mined areas located outside the area 
that you propose to disturb for coal extraction.
    (xii) Implementing measures to reduce or eliminate existing sources 
of surface-water or groundwater pollution.
    (3) Additional enhancement requirements for operations with 
anticipated long-term adverse impacts. (i) The exception in paragraph 
(d)(1)(ii) of this section does not apply if you

[[Page 93361]]

propose to conduct activities on the land surface that would result in 
the--
    (A) Temporary or permanent loss of mature native forest or other 
native plant communities that cannot be restored fully before final 
bond release under Sec. Sec.  800.40 through 800.43 of this chapter or
    (B) Permanent loss of wetlands or a segment of a perennial or 
intermittent stream.
    (ii) Whenever the conditions described in paragraph (d)(3)(i) of 
this section apply, the scope of the enhancement measures that you 
propose under paragraph (d)(1)(i) of this section must be commensurate 
with the magnitude of the long-term adverse impacts of the proposed 
operation. Whenever possible, the measures must be permanent.
    (iii)(A) Enhancement measures proposed under paragraph (d)(3)(ii) 
of this section must be implemented within the watershed in which the 
proposed operation is located, unless opportunities for enhancement are 
not available within that watershed. In that case, you must propose to 
implement enhancement measures in the closest adjacent watershed in 
which enhancement opportunities exist, as approved by the regulatory 
authority.
    (B) Each regulatory program must prescribe the size of the 
watershed for purposes of paragraph (d)(3)(iii)(A) of this section, 
using a generally-accepted watershed classification system.
    (4) Inclusion within permit area. If the enhancement measures to be 
implemented under paragraphs (d)(1) through (d)(3) of this section 
would involve more than a de minimis disturbance of the surface of land 
outside the area to be mined, you must include the land to be disturbed 
by those measures within the proposed permit area.
    (e) Fish and Wildlife Service or National Marine Fisheries Service 
review. (1)(i) The regulatory authority must provide the protection and 
enhancement plan developed under this section and the resource 
information submitted under Sec.  779.20 of this chapter to the 
appropriate regional or field office of the U.S. Fish and Wildlife 
Service or the National Marine Fisheries Service, as applicable, 
whenever the resource information submitted under Sec.  783.20 of this 
chapter includes species listed as threatened or endangered under the 
Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., designated or 
proposed critical habitat under that law, or species proposed for 
listing as threatened or endangered under that law. The regulatory 
authority must provide the resource information and the protection and 
enhancement plan to the appropriate Service(s) no later than the time 
that it provides written notice of the permit application to 
governmental agencies under Sec.  773.6(a)(3)(ii) of this chapter.
    (ii)(A) When the resource information obtained under Sec.  783.20 
of this chapter does not include species listed as threatened or 
endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq., designated or proposed critical habitat under that law, or 
species proposed for listing as threatened or endangered under that 
law, the regulatory authority must provide the resource information and 
the protection and enhancement plan to the appropriate regional or 
field office of the U.S. Fish and Wildlife Service only if the Service 
requests an opportunity to review and comment on the resource 
information or the protection and enhancement plan.
    (B) The regulatory authority must provide the resource information 
and the protection and enhancement plan to the Service under paragraph 
(e)(1)(ii)(A) of this section within 10 days of receipt of a request 
from the Service to review the resource information and the protection 
and enhancement plan.
    (2) The regulatory authority must document the disposition of 
comments that it receives from the applicable Service(s) in response to 
the distribution made under paragraph (e)(1)(i) of this section to the 
extent that those comments pertain to species listed as threatened or 
endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq., to designated or proposed critical habitat under that law, or to 
species proposed for listing as threatened or endangered under that 
law.


Sec.  784.17  [Reserved]


Sec.  784.18  [Reserved]


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

    (a)(1) General requirements. Your permit application must include 
information on the hydrology, geology, and aquatic biology of the 
proposed permit area and the adjacent area in sufficient detail to 
assist in--
    (i) Determining the probable hydrologic consequences of the 
proposed operation upon the quality and quantity of surface water and 
groundwater in the proposed permit and adjacent areas, as required 
under Sec.  784.20 of this part.
    (ii) Determining the nature and extent of both the hydrologic 
reclamation plan required under Sec.  784.22 of this part and the 
monitoring plans required under Sec.  784.23 of this part.
    (iii) Determining whether reclamation as required by this chapter 
can be accomplished.
    (iv) Preparing the cumulative hydrologic impact assessment under 
Sec.  784.21 of this part, including an evaluation of whether the 
proposed operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area.
    (v) Preparing the subsidence control plan under Sec.  784.30 of 
this part.
    (2) Core baseline water-quality data requirements for surface water 
and groundwater. You must provide the following water-quality 
information for each groundwater and surface-water sample collected for 
baseline data purposes.

------------------------------------------------------------------------
            Parameter                Surface water        Groundwater
------------------------------------------------------------------------
pH..............................  Yes...............  Yes.
Specific conductance corrected    Yes...............  Yes.
 to 25[deg]C (conductivity).
Total dissolved solids..........  Yes...............  Yes.
Total suspended solids..........  Yes...............  No.
Hot acidity.....................  Yes...............  Yes.
Total alkalinity................  Yes...............  Yes.
Major anions (dissolved),         Yes...............  Yes.
 including, at a minimum,
 bicarbonate, sulfate, and
 chloride.
Major anions (total), including,  Yes...............  No.
 at a minimum, bicarbonate,
 sulfate, and chloride.
Major cations (dissolved),        Yes...............  Yes.
 including, at a minimum,
 calcium, magnesium, sodium, and
 potassium.
Major cations (total),            Yes...............  No.
 including, at a minimum,
 calcium, magnesium, sodium, and
 potassium.
Cation-anion balance of           Yes...............  Yes.
 dissolved major cations and
 dissolved major anions.
Any cation or anion that          Yes...............  Yes.
 constitutes a significant
 percentage of the total ionic
 charge balance, but that was
 not included in the analyses of
 major anions and major cations.

[[Page 93362]]

 
Iron (dissolved)................  Yes...............  Yes.
Iron (total)....................  Yes...............  No.
Manganese (dissolved)...........  Yes...............  Yes.
Manganese (total)...............  Yes...............  No.
Selenium (dissolved)............  Yes...............  Yes.
Selenium (total)................  Yes...............  No.
Any other parameter identified    Yes...............  No.
 in any applicable National
 Pollutant Discharge Elimination
 System permit, if known at the
 time of application for the
 SMCRA permit.
Temperature.....................  Yes...............  Yes.
------------------------------------------------------------------------

    (b) Groundwater information--(1) General requirements. Your permit 
application must include information sufficient to document seasonal 
variations in the quality, quantity, and usage of groundwater, 
including all surface discharges, within the proposed permit and 
adjacent areas.
    (2) Underground mine pools. If an underground mine pool is present 
within the proposed permit or adjacent areas, you must prepare an 
assessment of the characteristics of the mine pool, including seasonal 
changes in quality, quantity, and flow patterns, unless you 
demonstrate, and the regulatory authority finds, that the mine pool 
would not be hydrologically connected to the proposed operation. The 
determination of the probable hydrologic consequences of mining 
required under Sec.  784.20 of this part also must include a discussion 
of the effect of the proposed mining operation on any underground mine 
pools within the proposed permit and adjacent areas.
    (3) Monitoring wells. The regulatory authority must require the 
installation of properly-screened monitoring wells to document seasonal 
variations in the quality, quantity, and usage of groundwater.
    (4) Groundwater quality descriptions. Groundwater quality 
descriptions must include baseline information on the parameters 
identified in paragraph (a)(2) of this section and any additional 
parameters that the regulatory authority determines to be of local 
importance.
    (5) Groundwater quantity descriptions. At a minimum, groundwater 
quantity descriptions must include baseline data documenting seasonal 
variations in--
    (i) The areal extent and saturated thickness of all potentially-
impacted aquifers; and
    (ii) Approximate rates of groundwater discharge or usage and the 
elevation of the water table or potentiometric head in--
    (A) Each water-bearing coal seam to be mined.
    (B) Each aquifer above each coal seam to be mined.
    (C) Each potentially-impacted aquifer below the lowest coal seam to 
be mined.
    (6) Groundwater sampling requirements. (i) You must establish 
monitoring wells or equivalent monitoring points at a sufficient number 
of locations within the proposed permit and adjacent areas to determine 
groundwater quality, quantity, and movement in each aquifer above or 
immediately below the lowest coal seam to be mined. At a minimum, for 
each aquifer, you must locate monitoring points--
    (A) Upgradient and downgradient of the proposed permit area;
    (B) Upgradient and downgradient of the area encompassed by the 
angle of dewatering; and
    (C) Within the proposed permit area and the area overlying the 
proposed underground workings.
    (ii)(A) To document seasonal variations in groundwater quality and 
quantity, you must collect samples and take the measurements identified 
in paragraph (b)(5) of this section from each location identified in 
paragraph (b)(6)(i) of this section at approximately equally-spaced 
monthly intervals for a minimum of 12 consecutive months.
    (B) If approved by the regulatory authority, you may modify the 
interval or the 12-consecutive-month requirement specified in paragraph 
(b)(6)(ii)(A) of this section if adverse weather conditions make travel 
to a location specified in paragraph (b)(6)(i) of this section 
hazardous or if the water at that location is completely frozen.
    (C) In lieu of the frequency specified in paragraph (b)(6)(ii)(A) 
of this section, the regulatory authority may allow you to collect data 
quarterly for 2 years. The regulatory authority may initiate review of 
the permit application after collection and analysis of the first four 
quarterly groundwater samples, but it may not approve the application 
until after receipt and analysis of the final four quarterly 
groundwater samples.
    (D) You must analyze the samples collected in paragraph 
(b)(6)(ii)(A) of this section for the applicable water quality 
parameters identified in paragraph (a)(2) of this section and any other 
parameters specified by the regulatory authority.
    (iii) You must provide the Palmer Drought Severity Index for the 
proposed permit and adjacent areas for the initial baseline data 
collection period under paragraph (b)(6)(ii) of this section. The 
regulatory authority may extend the minimum data collection period 
specified in paragraph (b)(6)(ii) of this section whenever data 
available from the National Oceanic and Atmospheric Administration or 
similar databases indicate that the region in which the proposed 
operation is located experienced severe drought or abnormally high 
precipitation during the initial baseline data collection period.
    (c) Surface-water information.--(1) General requirements. Your 
permit application must include information sufficient to document 
seasonal variation in surface-water quality, quantity, and usage within 
the proposed permit and adjacent areas.
    (2) Surface-water quality descriptions. Surface-water quality 
descriptions must include baseline information on the parameters 
identified in paragraph (a)(2) of this section and any additional 
parameters that the regulatory authority determines to be of local 
importance.
    (3) Surface-water quantity descriptions. (i) At a minimum, surface-
water quantity descriptions for perennial and intermittent streams 
within the proposed permit and adjacent areas must include baseline 
data documenting--
    (A) Peak-flow magnitude and frequency.
    (B) Actual and anticipated usage.
    (C) Seasonal flow variations.
    (D) Seepage-run sampling determinations, if you propose to deploy a 
longwall panel beneath a perennial or intermittent stream or employ 
other types of full-extraction mining methods beneath a perennial or 
intermittent stream. You must take the seepage-run measurement during 
both low-flow and high-flow conditions. The seepage-run measurement 
must extend to the full length of the stream that

[[Page 93363]]

would be affected by the mining operation.
    (ii) All flow measurements under paragraph (c)(3)(i) of this 
section must be made using generally-accepted professional techniques 
approved by the regulatory authority. All techniques must be repeatable 
and must produce consistent results on successive measurements. Visual 
observations are not acceptable.
    (4) Surface-water sampling requirements. (i) You must establish 
monitoring points at a sufficient number of locations within the 
proposed permit and adjacent areas to determine the quality and 
quantity of water in perennial and intermittent streams within those 
areas. At a minimum, you must locate monitoring points--
    (A) Upgradient and downgradient of the proposed permit area in each 
perennial and intermittent stream within the proposed permit and 
adjacent areas; and
    (B) Upgradient and downgradient of the area encompassed by the 
angle of dewatering in all potentially affected perennial and 
intermittent streams.
    (ii)(A) To document seasonal variations in surface-water quality 
and quantity, you must collect samples and take the measurements 
identified in paragraph (c)(3) of this section from each location 
identified in paragraph (c)(4)(i) of this section at approximately 
equally-spaced monthly intervals for a minimum of 12 consecutive 
months.
    (B) If approved by the regulatory authority, you may modify the 
interval or the 12-consecutive-month sampling requirement specified in 
paragraph (c)(4)(ii)(A) of this section if adverse weather conditions 
make travel to a location specified in paragraph (c)(4)(i) of this 
section hazardous or if the water at that location is completely 
frozen.
    (C) You must analyze the samples collected under paragraph 
(c)(4)(ii)(A) of this section for the applicable parameters identified 
in paragraph (a)(2) of this section and any other parameters specified 
by the regulatory authority. (iii) You must provide the Palmer Drought 
Severity Index for the proposed permit and adjacent areas for the 
initial baseline data collection period under paragraph (c)(4)(ii) of 
this section. The regulatory authority may extend the minimum data 
collection period specified in paragraphs (c)(4)(ii) and (iii) of this 
section whenever data available from the National Oceanic and 
Atmospheric Administration or similar databases indicate that the 
region in which the proposed operation is located experienced severe 
drought or abnormally high precipitation during the initial baseline 
data collection period.
    (5) Precipitation measurements. (i) You must provide records of 
precipitation amounts for the proposed permit area, using on-site, 
self-recording devices.
    (ii) Precipitation records must be adequate to generate and 
calibrate a hydrologic model of the site. The regulatory authority will 
determine whether you must create such a model.
    (iii) At the discretion of the regulatory authority, you may use 
precipitation data from a single self-recording device to provide 
baseline data for multiple permits located close to each other.
    (6) Stream assessments. (i)(A) You must map and separately identify 
all perennial, intermittent, and ephemeral streams within the proposed 
permit area and all perennial and intermittent streams within the 
adjacent area.
    (B) The map must show the location of the channel head of each 
stream identified in paragraph (c)(6)(i)(A) of this section whenever 
the applicable area includes a terminal reach of the stream.
    (C) The map must show the location of transition points from 
ephemeral to intermittent and from intermittent to perennial (and vice 
versa, when applicable) for each stream identified in paragraph 
(c)(6)(i)(A) of this section whenever the applicable area includes such 
a transition point. If the U.S. Army Corps of Engineers has determined 
the location of a transition point, your application must be consistent 
with that determination.
    (ii)(A) For all perennial and intermittent streams within the 
proposed permit area, you must describe the baseline stream pattern, 
profile, and dimensions, with measurements of channel slope, sinuosity, 
water depth, alluvial groundwater depth, depth to bedrock, bankfull 
depth, bankfull width, width of the flood-prone area, and dominant in-
stream substrate at a scale and frequency adequate to characterize the 
entire length of the stream within the proposed permit area.
    (B) You must describe the general stream-channel configuration of 
ephemeral streams within the proposed permit area.
    (iii) For all perennial, intermittent, and ephemeral streams within 
the proposed permit area, you must describe the vegetation growing 
along the banks of each stream, including--
    (A) Identification of any hydrophytic vegetation located within or 
adjacent to the stream channel.
    (B) The extent to which streamside vegetation consists of trees and 
shrubs.
    (C) The percentage of channel canopy coverage.
    (D) A scientific calculation of the species diversity of the 
vegetation.
    (iv) You must identify all stream segments within the proposed 
permit and adjacent areas that appear on the list of impaired surface 
waters prepared under section 303(d) of the Clean Water Act, 33 U.S.C. 
1313(d). You must identify the parameters responsible for the impaired 
condition and the total maximum daily loads associated with those 
parameters, when applicable.
    (v) For all perennial, intermittent, and ephemeral streams within 
the proposed permit area and for all perennial and intermittent streams 
within the adjacent area, you must identify the extent of wetlands 
adjoining the stream and describe the quality of those wetlands.
    (vi) Except as provided in paragraph (g) of this section, you must 
provide an assessment of the biological condition of--
    (A) Each perennial stream within the proposed permit area.
    (B) Each perennial stream within the adjacent area that could be 
affected by the proposed operation.
    (C) Each intermittent stream within the proposed permit area, if a 
scientifically defensible protocol has been established for assessment 
of intermittent streams in the state or region in which the stream is 
located.
    (D) Each intermittent stream within the adjacent area that could be 
affected by the proposed operation, if a scientifically defensible 
protocol has been established for assessment of intermittent streams in 
the state or region in which the stream is located.
    (vii) When determining the biological condition of a stream under 
paragraph (c)(6)(vi) of this section, you must adhere to a 
bioassessment protocol approved by the state or tribal agency 
responsible for preparing the water quality inventory required under 
section 305(b) of the Clean Water Act, 33 U.S.C. 1315(b), or to other 
scientifically defensible bioassessment protocols accepted by agencies 
responsible for implementing the Clean Water Act, 33 U.S.C. 1251 et 
seq., modified as necessary to meet the following requirements. The 
protocol must--
    (A) Be based upon the measurement of an appropriate array of 
aquatic organisms, including, at a minimum, benthic macroinvertebrates, 
identified to the genus level where possible, otherwise to the lowest 
practical taxonomic level.
    (B) Result in the calculation of index values for both stream 
habitat and aquatic biota based on the reference condition.

[[Page 93364]]

    (C) Provide index values that correspond to the capability of the 
stream to support its designated aquatic life uses under section 303(c) 
of the Clean Water Act, 33 U.S.C. 1313(c).
    (D) Include a quantitative assessment of in-stream and riparian 
habitat condition.
    (E) Describe the technical elements of the bioassessment protocol, 
including but not limited to sampling methods, sampling gear, index 
period, sample processing and analysis, and quality assessment/quality 
control procedures.
    (viii) Except as provided in paragraph (g) of this section, you 
must describe the biology of each intermittent stream within the 
proposed permit area, and each intermittent stream within the adjacent 
area that could be affected by the proposed operation, whenever an 
assessment of the biological condition of those streams is not required 
under paragraph (c)(6)(vi) of this section. When obtaining the data 
needed to prepare this description, you must--
    (A) Sample each stream using a scientifically defensible sampling 
method or protocol established or endorsed by an agency responsible for 
implementing the Clean Water Act, 33 U.S.C. 1251 et seq.;
    (B) Identify benthic macroinvertebrates to the genus level where 
possible, otherwise to the lowest practical taxonomic level; and
    (C) Describe the technical elements of the sampling protocol, 
including but not limited to sampling methods, sampling gear, index 
period, sample processing and analysis, and quality assessment/quality 
control procedures.
    (d) Additional information for discharges from previous coal mining 
operations. If the proposed permit and adjacent areas contain any 
point-source discharges from previous surface or underground coal 
mining operations, you must sample those discharges during low-flow 
conditions of the receiving stream on a one-time basis. You must 
analyze the samples for the surface-water parameters identified in 
paragraph (a)(2) of this section and for both total and dissolved 
fractions of the following parameters--
    (1) Aluminum.
    (2) Arsenic.
    (3) Barium.
    (4) Beryllium.
    (5) Cadmium.
    (6) Copper.
    (7) Lead.
    (8) Mercury.
    (9) Nickel.
    (10) Silver.
    (11) Thallium.
    (12) Zinc.
    (e) Geologic information. (1) Your application must include a 
description of the geology of the proposed permit and adjacent areas 
down to and including the deeper of either the stratum immediately 
below the lowest coal seam to be mined or any aquifer below the lowest 
coal seam to be mined that may be adversely impacted by mining. The 
description must include--
    (i) The areal and structural geology of the proposed permit and 
adjacent areas.
    (ii) Other parameters that influence the required reclamation.
    (iii) An explanation of how the areal and structural geology may 
affect the occurrence, availability, movement, quantity, and quality of 
potentially impacted surface water and groundwater.
    (iv) The composition of the bed of each perennial and intermittent 
stream within the proposed permit and adjacent areas, together with a 
prediction of how that bed would respond to subsidence of strata 
overlying the proposed underground mine workings and how subsidence 
would impact streamflow.
    (2) The description required by paragraph (f)(1) of this section 
must be based on all of the following--
    (i) The cross-sections, maps, and plans required by Sec.  783.24 of 
this chapter.
    (ii) The information obtained under paragraphs (e)(3) through (5) 
of this section.
    (iii) Geologic literature and practices.
    (3) For any portion of the proposed permit area in which the strata 
down to the coal seam to be mined will be removed or are already 
exposed, you must collect and analyze samples from test borings; drill 
cores; or fresh, unweathered, uncontaminated samples from rock 
outcrops, down to and including the deeper of either the stratum 
immediately below the lowest coal seam to be mined or any aquifer below 
the lowest seam to be mined that may be adversely impacted by mining. 
Your application must include the following data and analyses:
    (i) Logs showing the lithologic characteristics, including physical 
properties and thickness, of each stratum, and the location of any 
groundwater encountered.
    (ii) Chemical analyses identifying those strata that may contain 
acid-forming materials, toxic-forming materials, or alkalinity-
producing materials and the extent to which each stratum contains those 
materials.
    (iii) Chemical analyses of all coal seams for acid-forming or 
toxic-forming materials, including, but not limited to, total sulfur 
and pyritic sulfur.
    (4) For lands within the permit and adjacent areas where the strata 
above the coal seam to be mined will not be removed, you must collect 
and analyze samples from test borings or drill cores. Your application 
must include the following data and analyses:
    (i) Logs showing the lithologic characteristics, including physical 
properties and thickness, of each stratum that may be impacted, and the 
location of any groundwater encountered.
    (ii) Chemical analyses of those strata immediately above and below 
the coal seam to be mined to identify whether and to what extent each 
stratum contains acid-forming materials, toxic-forming materials, or 
alkalinity-producing materials.
    (iii) Chemical analyses of the coal seam for acid-forming or toxic-
forming materials, including, but not limited to, total sulfur and 
pyritic sulfur.
    (iv) For standard room-and-pillar mining operations, the thickness 
and engineering properties of clays or soft rock such as clay shale, if 
any, in the strata immediately above and below each coal seam to be 
mined.
    (5) You must provide any additional geologic information and 
analyses that the regulatory authority determines to be necessary to 
protect the hydrologic balance, to minimize or prevent subsidence, or 
to meet the performance standards of this chapter.
    (6) You may request the regulatory authority to waive the 
requirements of paragraphs (e)(3) and (4) of this section, in whole or 
in part. The regulatory authority may grant the waiver request only 
after finding in writing that the collection and analysis of that data 
is unnecessary because other representative information is available to 
the regulatory authority in a satisfactory form.
    (f) Cumulative impact area information. (1) You must obtain the 
hydrologic, geologic, and biological information necessary to assess 
the impacts of both the proposed operation and all anticipated mining 
on surface-water and groundwater systems in the cumulative impact area, 
as required by Sec.  784.21 of this part, from the appropriate federal 
or state agencies, to the extent that the information is available from 
those agencies.
    (2) If the information identified as necessary in paragraph (f)(1) 
of this section is not available from other federal or state agencies, 
you may gather and submit this information to the regulatory authority 
as part of the permit application. As an alternative to collecting new 
information, you may submit data and analyses from nearby mining 
operations if the site of those operations is representative of the

[[Page 93365]]

proposed operations in terms of topography, hydrology, geology, 
geochemistry, and method of mining.
    (3) The regulatory authority may not approve the permit application 
until the information identified as necessary in paragraph (f)(1) of 
this section has been made available to the regulatory authority and 
the regulatory authority has used that information to prepare the 
cumulative hydrologic impact assessment required by Sec.  784.21 of 
this part.
    (g) Exception for operations that avoid streams. Upon your request, 
the regulatory authority may waive the biological information 
requirements of paragraphs (c)(6)(vi) through (viii) of this section if 
you demonstrate, and if the regulatory authority finds in writing, that 
your operation will not--
    (1) Mine through or bury a perennial or intermittent stream;
    (2) Create a point-source discharge to any perennial, intermittent, 
or ephemeral stream; or
    (3) Modify the base flow of any perennial or intermittent stream.
    (h) Coordination with Clean Water Act agencies. The regulatory 
authority will make best efforts to--
    (1) Consult in a timely manner with the agencies responsible for 
issuing permits, authorizations, and certifications under the Clean 
Water Act;
    (2) Minimize differences in baseline data collection points and 
parameters; and
    (3) Share data to the extent practicable and consistent with each 
agency's mission, statutory requirements, and implementing regulations.
    (i) Corroboration of baseline data. The regulatory authority must 
either corroborate a sample of the baseline information in your 
application or arrange for a third party to conduct the corroboration 
at your expense. Corroboration may include, but is not limited to, 
simultaneous sample collection and analysis, visual observation of 
sample collection, use of field measurements, or comparison of 
application data with application or monitoring data from adjacent 
operations.


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

    (a) Content of PHC determination. Your permit application must 
contain a determination of the probable hydrologic consequences of the 
proposed operation upon the quality and quantity of surface water and 
groundwater and, except as provided in Sec.  784.19(g) of this part, 
upon the biology of perennial and intermittent streams under seasonal 
flow conditions for the proposed permit and adjacent areas. You must 
base the PHC determination on an analysis of the baseline hydrologic, 
geologic, biological, and other information required under Sec.  784.19 
of this part. It must include findings on:
    (1) Whether the operation may cause material damage to the 
hydrologic balance outside the permit area.
    (2) Whether acid-forming or toxic-forming materials are present 
that could result in the contamination of surface water or groundwater, 
including, but not limited to, a discharge of toxic mine drainage after 
the completion of land reclamation.
    (3) Whether underground mining activities conducted after October 
24, 1992, may result in contamination, diminution or interruption of a 
well or spring within the permit or adjacent areas that was in 
existence when the permit application was submitted and that is used 
for domestic, drinking, or residential purposes.
    (4) Whether the proposed operation will intercept aquifers in 
overburden strata or aquifers in underground mine voids (mine pools) or 
create aquifers in spoil placed in the backfilled area and, if so, what 
impacts the operation would have on those aquifers, both during mining 
and after reclamation, and the effect of those impacts on the 
hydrologic balance.
    (5) What impact the proposed operation will have on:
    (i) Sediment yield and transport from the area to be disturbed.
    (ii) The quality of groundwater and surface water within the 
proposed permit and adjacent areas. At a minimum, unless otherwise 
specified, the finding must address the impacts of the operation on 
both groundwater and surface water in terms of the parameters listed in 
Sec.  784.19(a)(2) of this part and any additional water quality 
parameters that the regulatory authority determines to be of local 
importance.
    (iii) Flooding and precipitation runoff patterns and 
characteristics.
    (iv) Peak-flow magnitude and frequency for perennial and 
intermittent streams within the proposed permit and adjacent areas.
    (v) Seasonal variations in streamflow.
    (vi) The availability of groundwater and surface water, including 
the impact of any diversion of surface or subsurface flows to 
underground mine workings or any changes in watershed size as a result 
of the postmining surface configuration.
    (vii) The biology of perennial and intermittent streams within the 
proposed permit and adjacent areas, except as provided in Sec.  
784.19(g) of this part.
    (viii) Other characteristics as required by the regulatory 
authority.
    (6) What impact subsidence resulting from the proposed underground 
mining activities may have on perennial and intermittent streams.
    (7) Whether the underground mine workings will flood after mine 
closure and, if so, a statement and explanation of--
    (i) The highest potentiometric surface of the mine pool after 
closure.
    (ii) Whether, where, and when the mine pool is likely to result in 
a surface discharge, either via gravity or as a result of hydrostatic 
pressure.
    (iii) The predicted quality of any discharge from the mine pool.
    (iv) The predicted impact of the mine pool on the hydrologic 
balance of the proposed permit and adjacent areas after the mine pool 
reaches equilibrium.
    (v) The potential for a mine pool blowout or other hydrologic 
disturbances.
    (vi) The potential for the mine pool to destabilize surface 
features.
    (vii) The potential impact of roof collapses on mine pool behavior 
and equilibrium.
    (b) Supplemental information. You must provide any supplemental 
information that the regulatory authority determines is needed to fully 
evaluate the probable hydrologic consequences of the proposed operation 
and to plan remedial and reclamation activities. This information may 
include, but is not limited to, additional drilling, geochemical 
analyses of overburden materials, aquifer tests, hydrogeologic analyses 
of the water-bearing strata, analyses of flood flows, or analyses of 
other characteristics of water quality or quantity, including the 
stability of underground mine pools that might be affected by the 
proposed operation.
    (c) Subsequent reviews of PHC determinations. (1) The regulatory 
authority must review each application for a permit revision to 
determine whether a new or updated PHC determination is needed.
    (2) The regulatory authority must require that you prepare a new or 
updated PHC determination if the review under paragraph (c)(1) of this 
section finds that one is needed.


Sec.  784.21  What requirements apply to preparation, use, and review 
of the cumulative hydrologic impact assessment (CHIA)?

    (a) General requirements. (1) The regulatory authority must prepare 
a

[[Page 93366]]

written assessment of the probable cumulative hydrologic impacts of the 
proposed operation and all anticipated mining upon surface-water and 
groundwater systems in the cumulative impact area. This assessment, 
which is known as the CHIA, must be sufficient to determine, for 
purposes of permit application approval, whether the proposed operation 
has been designed to prevent material damage to the hydrologic balance 
outside the permit area.
    (2) In preparing the CHIA, the regulatory authority must consider 
relevant information on file for other mining operations located within 
the cumulative impact area or in similar watersheds.
    (3) As provided in Sec.  784.19(f) of this part, the regulatory 
authority may not approve a permit application until the hydrologic, 
geologic, and biological information needed to prepare the CHIA has 
been made available to the regulatory authority and the regulatory 
authority has used that information to prepare the CHIA.
    (b) Contents. The CHIA must include--
    (1) A map of the cumulative impact area. At a minimum, the map must 
identify and display--
    (i) Any difference in the boundaries of the cumulative impact area 
for groundwater and surface water.
    (ii) The locations of all previous, current, and anticipated 
surface and underground mining.
    (iii) The locations of all baseline data collection sites within 
the proposed permit and adjacent areas under Sec.  784.19 of this part.
    (iv) Designated uses of surface water under section 303(c) of the 
Clean Water Act, 33 U.S.C. 1313(c).
    (2) A description of all previous, existing, and anticipated 
surface and underground coal mining within the cumulative impact area, 
including, at a minimum, the coal seam or seams mined or to be mined, 
the extent of mining, and the reclamation status of each operation.
    (3) A quantitative and qualitative description of baseline 
hydrologic information for the proposed permit and adjacent areas under 
Sec.  784.19 of this part, including--
    (i) The quality and quantity of surface water and groundwater and 
seasonal variations therein.
    (ii) The quality and quantity of water needed to support, maintain, 
or attain each--
    (A) Designated use of surface water under section 303(c) of the 
Clean Water Act, 33 U.S.C. or 1313(c), or, if there are no designated 
uses, each premining use of surface water.
    (B) Premining use of groundwater.
    (iii) A description and/or maps of the local and regional 
groundwater systems.
    (iv) To the extent required by Sec.  784.19(c)(6)(vi) of this part, 
the biological condition of perennial and intermittent streams and, to 
the extent required by Sec.  784.19(c)(6)(viii) of this part, the 
biology of intermittent streams not included within Sec.  
784.19(c)(6)(vi) of this part.
    (4) A discussion of any potential concerns identified in the PHC 
determination required under Sec.  784.20 of this part and how those 
concerns have been or will be resolved.
    (5) A qualitative and quantitative assessment of how all 
anticipated surface and underground mining may impact the quality of 
surface water and groundwater in the cumulative impact area, expressed 
in terms of each baseline parameter identified under Sec.  784.19 of 
this part.
    (6) Site-specific numeric or narrative thresholds for material 
damage to the hydrologic balance outside the permit area. These 
thresholds must also be included as a condition of the permit. When 
identifying thresholds to define when material damage to the hydrologic 
balance outside the permit area would occur in connection with a 
particular permit, the regulatory authority will--
    (i) In consultation with the Clean Water Act authority, as 
appropriate, undertake a comprehensive evaluation that considers the 
following factors--
    (A) The baseline data collected under Sec.  784.19 of this part;
    (B) The PHC determination prepared under Sec.  784.20 of this part;
    (C) Applicable water quality standards adopted under the authority 
of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c);
    (D) Applicable state or tribal standards for surface water or 
groundwater;
    (E) Ambient water quality criteria developed under section 304(a) 
of the Clean Water Act, 33 U.S.C. 1314(a);
    (F) The biological requirements of any species listed as threatened 
or endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 
et seq., when those species; designated critical habitat for those 
species; habitat occupied by those species, such as nesting, resting, 
feeding, and breeding areas; and any areas in which those species are 
present only for a short time, but that are important to their 
persistence, such as migration and dispersal corridors, are present 
within the cumulative impact area; and
    (G) Other pertinent information and considerations to identify the 
parameters for which thresholds are necessary.
    (ii) In consultation with the Clean Water Act authority, adopt 
numeric thresholds as appropriate, taking into consideration relevant 
contaminants for which there are water quality criteria under the Clean 
Water Act, 33 U.S.C. 1251 et seq. The regulatory authority may not 
adopt a narrative threshold for parameters for which numeric water 
quality criteria exist under the Clean Water Act, 33 U.S.C. 1251 et 
seq.
    (iii) Identify the portion of the cumulative impact area to which 
each threshold applies. Parameters and thresholds may vary from subarea 
to subarea within the cumulative impact area when appropriate, based 
upon differences in watershed characteristics and variations in the 
geology, hydrology, and biology of the cumulative impact area.
    (iv) Identify the points within the cumulative impact area at which 
the permittee will monitor the impacts of the operation on surface 
water and groundwater outside the permit area and explain how those 
locations will facilitate timely detection of the impacts of the 
operation on surface water and groundwater outside the permit area in a 
scientifically defensible manner. The permit applicant must incorporate 
those monitoring locations into the surface water and groundwater 
monitoring plans submitted under Sec.  784.23 of this part.
    (7) Evaluation thresholds for critical water quality and quantity 
parameters, as determined by the regulatory authority. After permit 
issuance, if monitoring results at the locations designated under 
paragraph (b)(6)(iv) of this section document exceedance of an 
evaluation threshold, the regulatory authority, in consultation with 
the Clean Water Act authority, as appropriate, must determine the cause 
of the exceedance. If the mining operation is responsible for the 
exceedance and if the adverse trend is likely to continue in the 
absence of corrective action, the regulatory authority must issue a 
permit revision order under Sec.  774.10 of this chapter. The order 
must require that the permittee reassess the adequacy of the PHC 
determination prepared under Sec.  784.20 of this part and the 
hydrologic reclamation plan approved under Sec.  784.20 of this part 
and develop measures to prevent material damage to the hydrologic 
balance outside the permit area.
    (8) An assessment of how all anticipated surface and underground

[[Page 93367]]

mining may affect groundwater movement and availability within the 
cumulative impact area.
    (9) After consultation with the Clean Water Act authority, as 
appropriate, an evaluation, with references to supporting data and 
analyses, of whether the CHIA will support a finding that the operation 
has been designed to prevent material damage to the hydrologic balance 
outside the permit area. To support this finding, the CHIA must include 
the following determinations, with appropriate documentation, or an 
explanation of why the determination is not necessary or appropriate:
    (i) Except as provided in Sec. Sec.  784.22(b) and 817.40 of this 
chapter, the proposed operation will not--
    (A) Cause or contribute to a violation of applicable water quality 
standards adopted under the authority of section 303(c) of the Clean 
Water Act, 33 U.S.C. 1313(c), or other applicable state or tribal water 
quality standards;
    (B) Cause or contribute to a violation of applicable state or 
tribal groundwater quality standards;
    (C) Preclude attainment of a premining use of a surface water 
located outside the permit area when no water quality standards have 
been established for that surface water; or
    (D) Preclude attainment of any premining use of groundwater located 
outside the permit area.
    (ii) The proposed operation has been designed to ensure that 
neither the mining operation nor the final configuration of the 
reclaimed area will result in changes in the size or frequency of peak 
flows from precipitation events or thaws that would cause an increase 
in flooding outside the permit area, when compared with premining 
conditions.
    (iii) Perennial and intermittent streams located outside the permit 
area will continue to have sufficient base flow at all times during and 
after mining and reclamation to maintain their premining flow regime; 
i.e., perennial streams located outside the permit area will retain 
perennial flows and intermittent streams located outside the permit 
area will retain intermittent flows both during and after mining and 
reclamation. Conversion of an intermittent stream to a perennial stream 
or conversion of an ephemeral stream to an intermittent or perennial 
stream outside the permit area may be acceptable, provided the 
conversion would be consistent with paragraph (b)(9)(i) of this section 
and would not result in a violation of the Endangered Species Act of 
1973, 16 U.S.C. 1531 et seq.
    (iv) The proposed operation has been designed to protect the 
quantity and quality of water in any aquifer that significantly ensures 
the prevailing hydrologic balance.
    (c) Subsequent reviews. (1) The regulatory authority must review 
each application for a significant permit revision to determine whether 
a new or updated CHIA is needed. The regulatory authority must document 
the review, including the analysis and conclusions, together with the 
rationale for the conclusions, in writing.
    (2) The regulatory authority must reevaluate the CHIA at intervals 
not to exceed 3 years to determine whether the CHIA remains accurate 
and whether the material damage and evaluation thresholds in the CHIA 
and the permit are adequate to ensure that material damage to the 
hydrologic balance outside the permit area will not occur. This 
evaluation must include a review of all biological and water monitoring 
data from both this operation and all other coal mining operations 
within the cumulative impact area.
    (3) The regulatory authority must prepare a new or updated CHIA if 
the review conducted under paragraph (c)(1) or (2) of this section 
finds that one is needed.


Sec.  784.22  What information must I include in the hydrologic 
reclamation plan and what information must I provide on alternative 
water sources?

    (a) Hydrologic reclamation plan. Your permit application must 
include a plan, with maps and descriptions, that demonstrates how the 
proposed operation will comply with the applicable provisions of this 
subchapter and subchapter K of this chapter that relate to protection 
of the hydrologic balance. The plan must--
    (1) Be specific to local hydrologic conditions.
    (2) Include preventive or remedial measures for any potential 
adverse hydrologic consequences identified in the PHC determination 
prepared under Sec.  784.20 of this part. These measures must describe 
the steps that you will take during mining and reclamation through 
final bond release under Sec. Sec.  800.40 through 800.43 of this 
chapter to--
    (i) Minimize disturbances to the hydrologic balance within the 
proposed permit and adjacent areas. .
    (ii) Prevent material damage to the hydrologic balance outside the 
proposed permit area. The plan must include remedial measures for any 
predicted diminution of streamflow or loss of wetlands as a result of 
subsidence. The application must discuss the results of past use of the 
proposed remedial measures in the vicinity of the proposed mining 
operation and under similar conditions elsewhere.
    (iii) Meet applicable water quality laws and regulations.
    (iv) Protect existing water users in accordance with paragraph (b) 
of this section and Sec.  817.40 of this chapter.
    (v) Avoid acid or toxic discharges to surface water and avoid or, 
if avoidance is not possible, minimize degradation of groundwater.
    (vi) Prevent, to the extent possible using the best technology 
currently available, additional contributions of suspended solids to 
streamflow or to runoff outside the proposed permit area.
    (vii) Provide water-treatment facilities when needed.
    (viii) Control surface-water runoff in accordance with Sec.  784.29 
of this part.
    (3) Address the impacts of any transfers of water among active and 
abandoned mines within the proposed permit and adjacent areas.
    (4) Describe the steps that you will take during mining and 
reclamation through final bond release under Sec. Sec.  800.40 through 
800.43 of this chapter to protect and enhance aquatic life and related 
environmental values to the extent possible using the best technology 
currently available.
    (b) Alternative water source information. (1)(i) If the PHC 
determination prepared under Sec.  784.20 of this part indicates that 
underground mining activities conducted after October 24, 1992, may 
result in contamination, diminution, or interruption of a well or 
spring that is in existence at the time the permit application is 
submitted and that is used for domestic, drinking, or residential 
purposes, you must demonstrate that alternative water sources are both 
available and feasible to develop. The alternative water sources must 
be of suitable quality and sufficient in quantity to support all uses 
protected under Sec.  817.40 of this chapter.
    (ii) You must develop a water supply replacement plan for all uses 
protected under Sec.  817.40 of this chapter that includes construction 
details, costs, and an implementation schedule.
    (2) If you cannot identify an alternative water source that is both 
suitable and available, you must modify your application to prevent the 
proposed operation from contaminating, interrupting, or diminishing any 
water supply protected under Sec.  817.40 of this chapter.
    (3)(i) When a suitable alternative water source is available, your 
operation plan must require that the alternative water supply be 
developed and installed

[[Page 93368]]

on a permanent basis before your operation advances to the point at 
which it could adversely affect an existing water supply protected 
under Sec.  817.40 of this chapter. This requirement applies only to 
those water supplies for which adverse impacts are probable.
    (ii) Paragraph (b)(3)(i) of this section will not apply immediately 
if you demonstrate, and the regulatory authority finds, that the 
proposed operation also would adversely affect the replacement supply. 
In that case, your plan must require provision of a temporary 
replacement water supply until it is safe to install the permanent 
replacement water supply required under paragraph (b)(3)(i) of this 
section.
    (4) Your application must describe how you will provide both 
temporary and permanent replacements for any unexpected losses of water 
supplies protected under Sec.  817.40 of this chapter.


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

    (a) Groundwater monitoring plan.--(1) General requirements. Your 
permit application must include a groundwater monitoring plan adequate 
to evaluate the impacts of the mining operation on groundwater in the 
proposed permit and adjacent areas and to determine in a timely manner 
whether corrective action is needed to prevent the operation from 
causing material damage to the hydrologic balance outside the permit 
area. The plan must--
    (i) Identify the locations to be monitored, the measurements to be 
taken at each location, and the parameters to be analyzed in samples 
collected at each location.
    (ii) Specify the sampling frequency.
    (iii) Establish a sufficient number of appropriate monitoring 
locations to evaluate the accuracy of the findings in the PHC 
determination, to identify adverse trends, and to determine, in a 
timely fashion, whether corrective action is needed to prevent material 
damage to the hydrologic balance outside the permit area. At a minimum, 
the plan must include--
    (A) For each aquifer above or immediately below the coal seam to be 
mined, monitoring sites located upgradient and downgradient of the 
proposed operation at a distance sufficiently close to the underground 
mine workings to detect changes as the mining operation progresses. The 
plan must include a schedule and map for moving these sites as the 
underground workings advance.
    (B) Monitoring wells in any existing underground mine workings that 
would have a direct hydrological connection to the proposed operation.
    (C) At least one monitoring well to be located in the mine pool 
after mine closure.
    (D) Monitoring wells or equivalent monitoring points at the 
locations specified in the CHIA under Sec.  784.21(b)(6)(vi) of this 
part.
    (iv) Describe how the monitoring data will be used to--
    (A) Determine the impacts of the operation upon the hydrologic 
balance.
    (B) Determine the impacts of the operation upon the biology of 
surface waters within the permit and adjacent areas.
    (C) Prevent material damage to the hydrologic balance outside the 
permit area.
    (v) Describe how the water samples will be collected, preserved, 
stored, transmitted for analysis, and analyzed in accordance with the 
sampling, analysis, and reporting requirements of paragraphs (a) and 
(b) of Sec.  777.13 of this chapter.
    (2) Parameters.--(i) General criteria for selection of parameters. 
The plan must provide for the monitoring of parameters for which an 
evaluation threshold under Sec.  784.21(b)(7) of this part exists. It 
also must provide for the monitoring of other parameters that could be 
affected by the proposed operation to the extent needed to assess the--
    (A) Accuracy of the findings and predictions in the PHC 
determination prepared under Sec.  784.20 of this part.
    (B) Suitability of the quality and quantity of groundwater for 
protected premining uses of groundwater within the permit and adjacent 
areas, subject to Sec.  817.40 of this chapter.
    (C) Suitability of the quality and quantity of groundwater to 
support the premining land uses within the permit and adjacent areas.
    (ii) Minimum sampling and analysis requirements. At a minimum, the 
plan must require collection and analysis of a sample from each 
monitoring point every 3 months, with data submitted to the regulatory 
authority at the same frequency. The data must include--
    (A) Analysis of each sample for the groundwater parameters listed 
in Sec.  784.19(a)(2) of this part.
    (B) Water levels in each well used for monitoring purposes and 
discharge rates from each spring or underground opening used for 
monitoring purposes.
    (C) Analysis of each sample for parameters detected by the baseline 
sampling and analysis conducted under Sec.  784.19(d) of this part.
    (D) Analysis of each sample for all parameters for which there is 
an evaluation threshold under Sec.  784.21(b)(7) of this part.
    (E) Analysis of each sample for other parameters of concern, as 
determined by the regulatory authority, based upon the information and 
analyses required under Sec. Sec.  784.19 through 784.21 of this part.
    (3) Regulatory authority review and action. (i) Upon completing the 
technical review of the application, the regulatory authority may 
require that you revise the plan to increase the frequency of 
monitoring, to require monitoring of additional parameters, or to 
require monitoring at additional locations, if the additional 
requirements would contribute to protection of the hydrologic balance.
    (ii) After completing preparation of the cumulative hydrologic 
impact assessment required under Sec.  784.21 of this part, the 
regulatory authority must reconsider the adequacy of the monitoring 
plan and require that you make any necessary changes.
    (4) Exception. If you can demonstrate, on the basis of the PHC 
determination prepared under Sec.  784.20 of this part or other 
available information that a particular aquifer in the proposed permit 
and adjacent areas has no existing or foreseeable use for agricultural 
or other human purposes or for fish and wildlife purposes and does not 
serve as an aquifer that significantly ensures the hydrologic balance 
within the cumulative impact area, the regulatory authority may waive 
monitoring of that aquifer.
    (b) Surface-water monitoring plan.--(1) General requirements. Your 
permit application must include a surface-water monitoring plan 
adequate to evaluate the impacts of the mining operation on surface 
water in the proposed permit and adjacent areas and to determine in a 
timely manner whether corrective action is needed to prevent the 
operation from causing material damage to the hydrologic balance 
outside the permit area. The plan must--
    (i) Identify the locations to be monitored, the measurements to be 
taken at each location, and the parameters to be analyzed in samples 
collected at each location.
    (ii)(A) Require on-site measurement of precipitation amounts at 
specified locations within the permit area, using self-recording 
devices.
    (B) Measurement of precipitation amounts must continue through 
Phase II bond release under Sec.  800.42(c) of this chapter or for any 
longer period specified by the regulatory authority.

[[Page 93369]]

    (C) At the discretion of the regulatory authority, you may use 
precipitation data from a single self-recording device to provide 
monitoring data for multiple permits that are contiguous or nearly 
contiguous if a single station would provide adequate and accurate 
coverage of precipitation events occurring in that area.
    (iii) Specify the sampling frequency.
    (iv) Establish a sufficient number of appropriate monitoring 
locations to evaluate the accuracy of the findings in the PHC 
determination, to identify adverse trends, and to determine, in a 
timely fashion, whether corrective action is needed to prevent material 
damage to the hydrologic balance outside the permit area. At a minimum, 
the plan must include--
    (A) Monitoring of point-source discharges from the proposed 
operation.
    (B) Monitoring locations upgradient and downgradient of the 
proposed permit area in each perennial and intermittent stream within 
the proposed permit and adjacent areas, with the exception that no 
upgradient monitoring location is needed for a stream when the 
operation will mine through the headwaters of that stream.
    (C) Monitoring locations upgradient and downgradient of the 
proposed operation at a distance sufficiently close to the underground 
mine workings to detect changes as the mining operation progresses. The 
plan must include a schedule and map for moving these sites as the 
underground workings advance.
    (D) Monitoring locations specified in the CHIA under Sec.  
784.21(b)(6)(vi) of this part.
    (v) Describe how the monitoring data will be used to--
    (A) Determine the impacts of the operation upon the hydrologic 
balance.
    (B) Determine the impacts of the operation upon the biology of 
surface waters within the permit and adjacent areas.
    (C) Prevent material damage to the hydrologic balance outside the 
permit area.
    (vi) Describe how the water samples will be collected, preserved, 
stored, transmitted for analysis, and analyzed in accordance with the 
sampling, analysis, and reporting requirements of paragraphs (a) and 
(b) of Sec.  777.13 of this chapter.
    (2) Parameters.--(i) General criteria for selection of parameters. 
The plan must provide for the monitoring of parameters--
    (A) For which there are applicable effluent limitation guidelines 
under 40 CFR part 434.
    (B) Needed to assess the accuracy of the findings and predictions 
in the PHC determination prepared under Sec.  784.20 of this part.
    (C) Needed to assess the adequacy of the surface-water runoff 
control plan prepared under Sec.  784.29 of this part.
    (D) Needed to assess the suitability of the quality and quantity of 
surface water in the permit and adjacent areas for all designated uses 
under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), or, if 
there are no designated uses, all premining uses of surface water in 
the permit and adjacent areas, subject to Sec.  817.40 of this chapter; 
and
    (E) Needed to assess the suitability of the quality and quantity of 
surface water in the permit and adjacent areas to support the premining 
land uses.
    (F) For which there is an evaluation threshold under Sec.  
784.21(b)(7) of this part.
    (ii) Minimum sampling and analysis requirements for monitoring 
locations other than point-source discharges. For all monitoring 
locations other than point-source discharges, the plan must require 
collection and analysis of a sample from each monitoring point at least 
every 3 months, with data submitted to the regulatory authority at the 
same frequency. The data must include--
    (A) Analysis of each sample for the surface-water parameters listed 
in Sec.  784.19(a)(2) of this part.
    (B) Flow rates at each sampling location. The plan must require use 
of generally-accepted professional flow measurement techniques. Visual 
observations are not acceptable.
    (C) Analysis of each sample for parameters detected by the baseline 
sampling and analysis conducted under Sec.  784.19(d) of this part.
    (D) Analysis of each sample for all parameters for which there is 
an evaluation threshold under Sec.  784.21(b)(7) of this part.
    (E) Analysis of each sample for other parameters of concern, as 
determined by the regulatory authority, based upon the information and 
analyses required under Sec. Sec.  784.19 through 784.21 of this part.
    (iii) Minimum requirements for point-source discharges. For point-
source discharges, the plan must--
    (A) Provide for monitoring in accordance with 40 CFR parts 122, 
123, and 434 and as required by the National Pollutant Discharge 
Elimination System permitting authority.
    (B) Require measurement of flow rates, using generally-accepted 
professional flow measurement techniques. Visual observations are not 
acceptable.
    (iv) Requirements related to the Clean Water Act. You must revise 
the plan to incorporate any site-specific monitoring requirements 
imposed by the National Pollutant Discharge Elimination System 
permitting authority or the agency responsible for administration of 
section 404 of the Clean Water Act, 33 U.S.C. 1344, subsequent to 
submission of the SMCRA permit application.
    (3) Regulatory authority review and action. (i) Upon completing the 
technical review of your application, the regulatory authority may 
require that you revise the plan to increase the frequency of 
monitoring, to require monitoring of additional parameters, or to 
require monitoring at additional locations, if the additional 
requirements would contribute to protection of the hydrologic balance.
    (ii) After completing preparation of the cumulative hydrologic 
impact assessment required under Sec.  784.21 of this part, the 
regulatory authority must reconsider the adequacy of the monitoring 
plan and require that you make any necessary changes.
    (c) Biological condition monitoring plan.--(1) General 
requirements. Except as provided in paragraph (d) of this section, your 
permit application must include a plan for monitoring the biological 
condition of each perennial and intermittent stream within the proposed 
permit and adjacent areas for which baseline biological condition data 
was collected under Sec.  784.19(c)(6)(vi) of this part. The plan must 
be adequate to evaluate the impacts of the mining operation on the 
biological condition of those streams and to determine in a timely 
manner whether corrective action is needed to prevent the operation 
from causing material damage to the hydrologic balance outside the 
permit area.
    (2) Monitoring techniques. The plan must--
    (i) Require use of a bioassessment protocol that meets the 
requirements of Sec.  784.19(c)(6)(vii) of this part.
    (ii) Identify monitoring locations in each perennial and 
intermittent stream within the proposed permit and adjacent areas for 
which baseline biological condition data was collected under Sec.  
784.19(c)(6)(vi) of this part.
    (iii) Establish a sampling frequency that must be no less than 
annual, but not so frequent as to unnecessarily deplete the populations 
of the species being monitored.
    (iv) Require submission of monitoring data to the regulatory 
authority on an annual basis.
    (3) Regulatory authority review and action. (i) Upon completing 
review of your application, the regulatory authority may require that 
you revise the plan to adjust monitoring locations,

[[Page 93370]]

the frequency of monitoring, and the species to be monitored.
    (ii) After completing preparation of the cumulative hydrologic 
impact assessment required under Sec.  784.21 of this part, the 
regulatory authority must reconsider the adequacy of the monitoring 
plan and require that you make any necessary changes.
    (d) Exception for operations that avoid streams. (1) Upon your 
request, the regulatory authority may waive the biological condition 
monitoring plan requirements of paragraph (c) of this section if you 
demonstrate, and if the regulatory authority finds in writing, that 
your operation will not--
    (i) Mine through or bury any perennial or intermittent stream;
    (ii) Create a point-source discharge to any perennial, 
intermittent, or ephemeral stream; or
    (iii) Modify the base flow of any perennial or intermittent stream 
or cause the stream to pool, either as a result of subsidence or as a 
result of any other mining-related activity.
    (2) If you meet all the criteria of paragraph (d)(1) of this 
section with the exception of paragraph (d)(1)(ii) of this section, you 
may request, and the regulatory authority may approve, limiting the 
biological condition monitoring requirements of paragraph (c) of this 
section to only the stream that will receive the point-source 
discharge.
    (e) Coordination with Clean Water Act agencies. The regulatory 
authority will make best efforts to--
    (1) Consult in a timely manner with the agencies responsible for 
issuing permits, authorizations, and certifications under the Clean 
Water Act;
    (2) Minimize differences in monitoring locations and reporting 
requirements; and
    (3) Share data to the extent practicable and consistent with each 
agency's mission, statutory requirements, and implementing regulations.


Sec.  784.24  What requirements apply to the postmining land use?

    (a) What postmining land use information must my application 
contain? (1) You must describe and map the proposed use or uses of the 
land within the proposed permit area following reclamation, based on 
the categories of land uses listed in the definition of land use in 
Sec.  701.5 of this chapter.
    (2) Except for prime farmland historically used as cropland, you 
must discuss the utility and capability of the reclaimed land to 
support the proposed postmining land use and the variety of uses that 
the land was capable of supporting before any mining, as identified 
under Sec.  783.22 of this chapter, regardless of the proposed 
postmining land use.
    (3) You must explain how the proposed postmining land use is 
consistent with existing state and local land use policies and plans.
    (4) You must include a copy of the comments concerning the proposed 
postmining use that you receive from the--
    (i) Legal or equitable owner of record of the surface of the 
proposed permit area; and
    (ii) State and local government agencies that would have to 
initiate, implement, approve, or authorize the proposed use of the land 
following reclamation.
    (5) You must explain how the proposed postmining land use will be 
achieved and identify any support activities or facilities needed to 
achieve that use.
    (6) If you propose to restore the proposed permit area or a portion 
thereof to a condition capable of supporting a higher or better use or 
uses rather than to a condition capable of supporting the uses that the 
land could support before any mining, you must provide the 
demonstration required under paragraph (b)(1) of this section.
    (b) What requirements apply to the approval of alternative 
postmining land uses?--(1) Application requirements. If you propose to 
restore the proposed permit area or a portion thereof to a condition 
capable of supporting a higher or better use or uses, rather than to a 
condition capable of supporting the uses that the land could support 
before any mining, you must demonstrate that the proposed higher or 
better use or uses meet the following criteria:
    (i) There is a reasonable likelihood that the proposed use or uses 
will be achieved after mining and reclamation, as documented by, for 
example, real estate and construction contracts, plans for installation 
of any necessary infrastructure, procurement of any necessary zoning 
approvals, landowner commitments, economic forecasts, and studies by 
land use planning agencies.
    (ii) The proposed use or uses do not present any actual or probable 
hazard to public health or safety or any threat of water diminution or 
pollution.
    (iii) The proposed use or uses will not--
    (A) Be impractical or unreasonable.
    (B) Be inconsistent with applicable land use policies or plans.
    (C) Involve unreasonable delay in implementation.
    (D) Cause or contribute to a violation of federal, state, tribal or 
local law.
    (E) Result in changes in the size or frequency of peak flows from 
the reclaimed area that would cause an increase in flooding when 
compared with the conditions that would exist if the land were restored 
to a condition capable of supporting the uses that it was capable of 
supporting before any mining.
    (F) Cause the total volume of flow from the reclaimed area, during 
every season of the year, to vary in a way that would preclude 
attainment of any designated use of a surface water located outside the 
permit area under section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), or, if there are no designated uses, any premining use of a 
surface water located outside the permit area.
    (G) Cause a change in the temperature or chemical composition of 
the water that would preclude attainment of any designated use of a 
surface water under section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), or, if there are no designated uses, any premining use of a 
surface water located outside the permit area.
    (2) Regulatory authority decision requirements. The regulatory 
authority may approve your request if it--
    (i) Consults with the landowner or the land management agency 
having jurisdiction over the lands to which the use would apply; and
    (ii) Finds in writing that you have made the demonstration required 
under paragraph (b)(1) of this section. Landowner consent alone is an 
insufficient basis for this finding.
    (c) What requirements apply to permit revision applications that 
propose to change the postmining land use? (1) You may propose to 
change the postmining land use for all or a portion of the permit area 
at any time through the permit revision process under Sec.  774.13 of 
this chapter.
    (2) If you propose a higher or better postmining land use, the 
requirements of paragraphs (b)(1) and (2) of this section will apply 
and the application must be considered a significant permit revision 
for purposes of Sec.  774.13(b)(2) of this chapter.
    (d) What restrictions apply to the retention of mining-related 
structures? (1) If you propose to retain mining-related structures 
other than roads and impoundments for potential future use as part of 
the postmining land use, you must demonstrate, and the regulatory 
authority must find in writing, that the size and characteristics of 
the structures are consistent with and proportional to the needs of the 
postmining land use.
    (2) The amount of bond required for the permit under part 800 of 
this

[[Page 93371]]

chapter must include the cost of removing the structure and reclaiming 
the land upon which it was located to a condition capable of supporting 
the premining uses. The bond must include the cost of restoring the 
site to its approximate original contour in accordance with Sec.  
817.102 of this chapter and revegetating the site in accordance with 
the revegetation plan approved under Sec.  784.12(g) of this part for 
the permit area surrounding the site upon which the structure was 
previously located.
    (3) The reclamation plan submitted under Sec.  784.12 of this part 
must specify that if a structure is not in use as part of the approved 
postmining land use by the end of the revegetation responsibility 
period specified in Sec.  817.115 of this chapter, you must remove the 
structure and reclaim the land upon which it was located by restoring 
the approximate original contour in accordance with Sec.  817.102 of 
this chapter and revegetating the site in accordance with the 
revegetation plan approved under Sec.  784.12(g) of this part for the 
permit area surrounding the site upon which the structure was 
previously located.
    (e) What special provisions apply to previously mined areas? If 
land that was previously mined cannot be reclaimed to the land use that 
existed before any mining because of the previously mined condition, 
you may propose, and the regulatory authority may approve, any 
appropriate postmining land use for that land that is both achievable 
and compatible with land uses in the surrounding area, provided that 
restoration of the land to that capability does not require disturbance 
of land previously unaffected by mining.


Sec.  784.25  What information must I provide for siltation structures, 
impoundments, and refuse piles?

    (a) How do I determine the hazard potential of a proposed 
impoundment? You must use the following table to identify the hazard 
potential classification of each proposed impoundment that includes a 
dam:

------------------------------------------------------------------------
                                                           Economic,
                                  Loss of human life   environmental, or
Hazard potential  classification      in event of       lifeline losses
                                        failure         \1\ in event of
                                                            failure
------------------------------------------------------------------------
Low.............................  None expected.....  Low potential;
                                                       generally limited
                                                       to property owned
                                                       by the permittee.
Significant.....................  None expected.....  Yes.
High............................  Loss of one or      Yes, but not
                                   more lives          necessary for
                                   probable.           this
                                                       classification.
------------------------------------------------------------------------
\1\ Lifeline losses refer to disruption of lifeline facilities, which
  include, but are not limited to, important public utilities, highways,
  and railroads.

    (b) How must I prepare the general plan for proposed siltation 
structures, impoundments, and refuse piles? If you propose to construct 
a siltation structure, impoundment, or refuse pile, your application 
must include a general plan that meets the following requirements:
    (1) The plan 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 such plans, a qualified registered professional 
land surveyor, with assistance from experts in related fields such as 
landscape architecture.
    (2) The plan must contain a description, map, and cross-sections of 
the structure and its location.
    (3) The plan must contain the hydrologic and geologic information 
required to assess the hydrologic impact of the structure.
    (4)(i) The plan must contain a report describing the results of a 
geotechnical investigation of the potential effect on the structure if 
subsurface strata subside as a result of past, current, or future 
underground mining operations beneath or within the proposed permit and 
adjacent areas. When necessary, the investigation report also must 
identify design and construction measures that would prevent adverse 
subsidence-related impacts on the structure.
    (ii) Except for structures that would meet the criteria in Sec.  
77.216(a) of this title or that would have a significant or high hazard 
potential under paragraph (a) of this section, the requirements of 
paragraph (b)(4)(i) of this section do not apply--
    (A) In areas with 26.0 inches or less of average annual 
precipitation; or
    (B) To siltation structures.
    (5)(i) The plan must contain an analysis of the potential for each 
impoundment to drain into subjacent underground mine workings, together 
with an analysis of the impacts of such drainage.
    (ii) Except for structures that would meet the criteria in Sec.  
77.216(a) of this title or that would have a significant or high hazard 
potential under paragraph (a) of this section, the requirements of 
paragraph (b)(5)(i) of this section do not apply--
    (A) In areas with 26.0 inches or less of average annual 
precipitation; or
    (B) To siltation structures.
    (6) The plan must include a schedule setting forth the dates when 
any detailed design plans for structures that are not submitted with 
the general plan will be submitted to the regulatory authority.
    (c) How must I prepare the detailed design plan for proposed 
siltation structures, impoundments, and refuse piles?--(1) Detailed 
design plan requirements for high hazard dams, significant hazard dams, 
and impounding structures that meet MSHA criteria. If you propose to 
construct an impounding structure that would meet the criteria in Sec.  
77.216(a) of this title or that would have a significant or high hazard 
potential under paragraph (a) of this section, you must prepare and 
submit a detailed design plan that meets the following requirements:
    (i) The plan must be prepared by, or under the direction of, a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture. The engineer must certify that the impoundment design 
meets the requirements of this part, current prudent engineering 
practices, and any design criteria established by the regulatory 
authority. The qualified registered professional engineer must be 
experienced in the design and construction of impoundments.
    (ii) The plan must incorporate any design and construction measures 
identified in the geotechnical investigation report prepared under 
paragraph (b)(4) of this section as necessary to protect against 
potential adverse impacts from subsidence resulting from underground 
mine workings underlying or adjacent to the structure.
    (iii) The plan must describe the operation and maintenance 
requirements for each structure.
    (iv) The plan must describe the timetable and plans to remove each 
structure, if appropriate.
    (2) Detailed design plan requirements for other structures. If you 
propose to construct an impounding structure that would not meet the 
criteria in Sec.  77.216(a) of this title and that would not have a 
significant or high hazard

[[Page 93372]]

potential under paragraph (a) of this section, you must prepare and 
submit a detailed design plan that meets the following requirements:
    (i)(A) Except as provided in paragraph (c)(2)(i)(B) of this 
section, the plan must be prepared by, or under the direction of, a 
qualified, registered, professional engineer, or, in any state that 
authorizes land surveyors to prepare and certify such plans, a 
qualified, registered, professional, land surveyor. The engineer or 
land surveyor must certify that the impoundment design meets the 
requirements of this part, current prudent engineering practices, and 
any design criteria established by the regulatory authority. The 
qualified registered professional engineer or qualified registered 
professional land surveyor must be experienced in the design and 
construction of impoundments.
    (B) All coal mine waste structures to which Sec. Sec.  817.81 
through 817.84 of this chapter apply must be certified by a qualified, 
registered, professional engineer.
    (ii) The plan must reflect any design and construction requirements 
for the structure, including any measures identified as necessary in 
the geotechnical investigation report prepared under paragraph (b)(4) 
of this section.
    (iii) The plan must describe the operation and maintenance 
requirements for each structure.
    (iv) The plan must describe the timetable and plans to remove each 
structure, if appropriate.
    (3) Timing of submittal of detailed design plans. You must submit 
the detailed design plans to the regulatory authority either as part of 
the permit application or in accordance with the schedule submitted 
under paragraph (b)(6) of this section. The regulatory authority must 
approve, in writing, the detailed design plan for a structure before 
you may begin construction of the structure.
    (d) What additional design requirements apply to siltation 
structures? You must design siltation structures in compliance with the 
requirements of Sec.  817.46 of this chapter.
    (e) What additional design requirements apply to permanent and 
temporary impoundments? (1) You must design permanent and temporary 
impoundments to comply with the requirements of Sec.  817.49 of this 
chapter.
    (2) The regulatory authority may establish, through the regulatory 
program approval process, engineering design standards that ensure 
stability comparable to a 1.3 minimum static safety factor in lieu of 
conducting engineering tests to establish compliance with the minimum 
static safety factor of 1.3 required in Sec.  816.49(a)(2)(ii) of this 
chapter.
    (3) Each plan must include stability analyses of the proposed 
impoundment if the structure would meet the criteria in Sec.  77.216(a) 
of this title or would have a significant or high hazard potential 
under paragraph (a) of this section. The stability analyses must 
address static, seismic, and post-earthquake (liquefaction) conditions. 
They must include, but are not 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 analysis and design parameters and construction methods.
    (f) What additional design requirements apply to coal mine waste 
impoundments, refuse piles, and impounding structures constructed of 
coal mine waste? If you 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 design 
requirements in paragraphs (f)(1) and (2) of this section.
    (1) Design requirements for refuse piles. You must design refuse 
piles to comply with the requirements of Sec. Sec.  784.28, 817.81, and 
817.83 of this chapter.
    (2) Design requirements for impounding structures that will impound 
coal mine waste or that will be constructed of coal mine waste. (i) You 
must design impounding structures constructed of or intended to impound 
coal mine waste to comply with the coal mine waste disposal 
requirements of Sec. Sec.  784.28, 817.81, and 817.84 of this chapter 
and with the impoundment requirements of paragraphs (a) and (c) of 
Sec.  817.49 of this chapter.
    (ii) The plan for each impounding 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.
    (iii) Each plan for an impounding structure that will impound coal 
mine waste or that will be constructed of coal mine waste 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 impounding structure.
    (C) Identify all springs, seepage, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed impounding 
structure on each plan.
    (D) Consider the possibility of mudflows, rock-debris falls, or 
other landslides into the impounding structure, impoundment, or 
impounded material.
    (iv) The design must ensure that at least 90 percent of the water 
stored in the impoundment during the design precipitation event will be 
removed within a 10-day period.


Sec.  784.26  What information must I provide if I plan to return coal 
processing waste to abandoned underground mine workings?

    (a) As provided in Sec. Sec.  816.81(h) and 817.81(h) of this 
chapter, you may return coal processing waste from either surface-mined 
coal or underground-mined coal to abandoned underground mine workings 
for disposal only if the regulatory authority and the Mine Safety and 
Health Administration first approve the disposal plan.
    (b) Each plan for the return of coal processing waste to abandoned 
underground mine workings must describe the--
    (1) Source and quality of coal processing waste to be stowed in the 
abandoned underground workings.
    (2) All chemicals used to process the coal, the quantity of those 
chemicals remaining in the coal processing waste, and the likely impact 
of those chemicals on groundwater and any persons, aquatic life, or 
wildlife using that groundwater.
    (3) Area of the abandoned underground workings in which the waste 
is to be placed.
    (4) Percent of the abandoned underground mine void to be filled.
    (5) Method of constructing underground retaining walls.
    (6) Influence of the backstowing operation on active underground 
mine operations.
    (7) Surface area to be supported by the backstowed waste.
    (8) Anticipated occurrence of surface effects following 
backstowing.

[[Page 93373]]

    (9) Source and operation of the hydraulic transport mediums.
    (10) Method of dewatering the coal processing waste after 
placement.
    (11) Extent to which water will be retained underground.
    (12) Method of treatment of water if released to surface streams.
    (13) Plans for monitoring for chemicals contained in the coal 
processing waste.
    (14) Effect on the hydrologic regime and biological communities.
    (15) Measures to be taken to comply with the requirements of Sec.  
816.41 or Sec.  817.41 of this chapter for discharges to underground 
mines.
    (c) The plan submitted under paragraph (b) of this section must 
include a monitoring plan that complies with Sec.  784.23 of this part, 
as applicable. It must describe the objective of each permanent 
monitoring well to be located in the area in which coal processing 
waste is placed, the stratum underlying the mined coal, and the 
gradient from the area in which the waste is placed.
    (d) Paragraphs (a) through (c) of this section also apply to 
pneumatic backstowing operations, except that the regulatory authority 
may exempt a proposed pneumatic backstowing operation from compliance 
with the monitoring requirements of paragraph (c) of this section after 
finding in writing that you have demonstrated that the proposed 
operation will not adversely impact surface water, groundwater, or 
water supplies.


Sec.  784.27  What additional permitting requirements apply to proposed 
activities in or through ephemeral streams?

    (a) Clean Water Act requirements. If the proposed permit area 
includes waters subject to the jurisdiction of the Clean Water Act, 33 
U.S.C. 1251 et seq., the regulatory authority must condition the permit 
to prohibit initiation of mining-related activities in or affecting 
those waters before you obtain all necessary authorizations, 
certifications, and permits under the Clean Water Act, 33 U.S.C. 1251 
et seq.
    (b) Postmining surface drainage pattern and stream-channel 
configuration. (1) If you propose to mine through an ephemeral stream, 
your application must include a plan to construct--
    (i) A postmining surface drainage pattern that is similar to the 
premining surface drainage pattern, relatively stable, and in dynamic 
near-equilibrium; and
    (ii) Postmining stream-channel configurations that are relatively 
stable and similar to the premining configuration of ephemeral stream 
channels.
    (2) The regulatory authority may approve or require a postmining 
surface drainage pattern or stream-channel configuration that differs 
from the pattern or configuration otherwise required under paragraph 
(b)(1) of this section when the regulatory authority finds that a 
different pattern or configuration is necessary or appropriate to--
    (i) Ensure stability;
    (ii) Prevent or minimize downcutting or widening of reconstructed 
stream channels and control meander migration;
    (iii) Promote enhancement of fish and wildlife habitat;
    (iv) Accommodate any anticipated temporary or permanent increase in 
surface runoff as a result of mining and reclamation; or
    (v) Accommodate the construction of excess spoil fills, coal mine 
waste refuse piles, or coal mine waste impounding structures;
    (vi) Replace a stream that was channelized or otherwise severely 
altered prior to submittal of the permit application with a more 
natural, relatively stable, and ecologically sound drainage pattern or 
stream-channel configuration; or
    (vii) Reclaim a previously mined area.
    (c) Streamside vegetative corridors. (1) If you propose to mine 
through an ephemeral stream, your application must include a plan to 
establish a vegetative corridor at least 100 feet wide along each bank 
of the reconstructed stream channel, consistent with natural vegetation 
patterns.
    (2) The plan submitted under paragraph (c)(1) of this section must 
be consistent with the requirements of Sec.  817.56(c) of this chapter 
for vegetative corridors along ephemeral streams.
    (3) Paragraphs (c)(1) and (2) of this section do not apply to prime 
farmland historically used for cropland.


Sec.  784.28  What additional permitting requirements apply to proposed 
surface activities in, through, or adjacent to perennial or 
intermittent streams?

    (a) Clean Water Act requirements. If the proposed permit area 
includes waters subject to the jurisdiction of the Clean Water Act, 33 
U.S.C. 1251 et seq., the regulatory authority must condition the permit 
to prohibit initiation of mining-related activities in or affecting 
those waters before you obtain all necessary authorizations, 
certifications, and permits under the Clean Water Act, 33 U.S.C. 1251 
et seq.
    (b) To what activities does this section apply? You, the permit 
applicant, must provide the information and demonstrations required by 
paragraphs (c) through (g) of this section, as applicable, whenever you 
propose to conduct mining activities--
    (1) In or through a perennial or intermittent stream; or
    (2) On the surface of lands within 100 feet of a perennial or 
intermittent stream. You must measure this distance horizontally on a 
line perpendicular to the stream, beginning at the ordinary high water 
mark.
    (c) Postmining surface drainage pattern and stream-channel 
configuration. (1) If you propose to mine through a perennial or 
intermittent stream, your application must include a plan to 
construct--
    (i) A postmining surface drainage pattern that is similar to the 
premining surface drainage pattern, relatively stable, and in dynamic 
near-equilibrium; and
    (ii) Postmining stream-channel configurations that are relatively 
stable and similar to the premining configuration of perennial and 
intermittent stream channels.
    (2) The regulatory authority may approve or require a postmining 
surface drainage pattern or stream-channel configuration that differs 
from the pattern or configuration otherwise required under paragraph 
(c)(1) of this section when the regulatory authority finds that a 
different pattern or configuration is necessary or appropriate to--
    (i) Ensure stability;
    (ii) Prevent or minimize downcutting or widening of reconstructed 
stream channels and control meander migration;
    (iii) Promote enhancement of fish and wildlife habitat;
    (iv) Accommodate any anticipated temporary or permanent increase in 
surface runoff as a result of mining and reclamation;
    (v) Accommodate the construction of excess spoil fills, coal mine 
waste refuse piles, or coal mine waste impounding structures;
    (vi) Replace a stream that was channelized or otherwise severely 
altered prior to submittal of the permit application with a more 
natural, relatively stable, and ecologically sound drainage pattern or 
stream-channel configuration; or
    (vii) Reclaim a previously mined area.
    (d) Streamside vegetative corridors. (1) If you propose to conduct 
any mining activities identified in paragraph (b) of this section, your 
application must include a plan to establish a vegetated streamside 
corridor at least 100 feet wide on each side of the stream as part

[[Page 93374]]

of the reclamation process following the completion of mining 
activities on the surface of land within that area.
    (2) The plan submitted under paragraph (d)(1) of this section must 
be consistent with natural vegetation patterns.
    (3) The plan submitted under paragraph (d)(1) of this section must 
be consistent with the streamside vegetative corridor requirements of 
Sec.  817.57(d) of this chapter.
    (4) The corridor width must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark.
    (5) Paragraphs (d)(1) through (2) of this section do not apply to 
prime farmland historically used for cropland.
    (e) What demonstrations must I include in my application if I 
propose to conduct activities in or within 100 feet of a perennial or 
intermittent stream? (1) Except as provided in paragraphs (e)(5), 
(e)(6), and (i) of this section and Sec.  817.57(i) of this chapter, 
your application must contain the applicable demonstrations set forth 
in the table if you propose to conduct mining activities in or through 
a perennial or intermittent stream or on the surface of land within 100 
feet of a perennial or intermittent stream, as specified in paragraph 
(b) of this section.

----------------------------------------------------------------------------------------------------------------
                                                                        Activity
                                      --------------------------------------------------------------------------
                                       Any activity other than
                                          mining through or
                                        permanently  diverting
                                             a stream or                                    Construction of an
            Demonstration                 construction of an       Mining through or     excess spoil fill, coal
                                         excess  spoil fill,     permanently diverting   mine waste refuse pile,
                                       coal mine waste  refuse          a stream         or impounding structure
                                         pile, or impounding                              that  encroaches upon
                                            structure that                                 any part of a stream
                                         encroaches upon  any
                                           part of a stream
----------------------------------------------------------------------------------------------------------------
(i) The proposed activity would not    Yes....................  Yes....................  Yes.
 cause or contribute to a violation
 of applicable state or tribal water
 quality standards, including, but
 not limited to, standards
 established under the authority of
 section 303(c) of the Clean Water
 Act, 33 U.S.C. 1313(c).
(ii) The proposed activity would not   Yes....................  Yes....................  Yes.
 cause material damage to the
 hydrologic balance outside the
 permit area or upset the dynamic
 near-equilibrium of streams outside
 the permit area.
(iii) The proposed activity would not  Yes....................  Yes....................  Not applicable.
 result in conversion of the affected
 stream segment from perennial to
 ephemeral.
(iv) The proposed activity would not   Yes....................  Yes, except as provided  Not applicable.
 result in conversion of the affected                            in paragraphs (e)(2)
 stream segment from intermittent to                             and (5) of this
 ephemeral or from perennial to                                  section.
 intermittent.
(v) There is no practicable            Not applicable.........  Yes, except as provided  Yes.
 alternative that would avoid mining                             in paragraph (e)(3) of
 through or diverting a perennial or                             this section.
 intermittent stream.
(vi) After evaluating all potential    Not applicable.........  Not applicable.........  Yes.
 upland locations in the vicinity of
 the proposed operation, including
 abandoned mine lands and unreclaimed
 bond forfeiture sites, there is no
 practicable alternative that would
 avoid placement of excess spoil or
 coal mine waste in a perennial or
 intermittent stream.
(vii) The proposed operation has been  Not applicable.........  Yes, except as provided  Yes.
 designed to minimize the extent to                              in paragraphs (e)(3)
 which perennial or intermittent                                 and (5) of this
 streams will be mined through,                                  section.
 diverted, or covered by an excess
 spoil fill, a coal mine waste refuse
 pile, or a coal mine waste
 impounding structure.
(viii) The stream restoration          Not applicable.........  Yes, except as provided  Not applicable.
 techniques in the proposed                                      in paragraph (e)(5) of
 reclamation plan are adequate to                                this section.
 ensure restoration or improvement of
 the form, hydrologic function
 (including flow regime), dynamic
 near-equilibrium, streamside
 vegetation, and ecological function
 of the stream after you have mined
 through it, as required by Sec.
 817.57 of this chapter.
(ix) The proposed operation has been   Sec.   784.35(b) of      Sec.   784.35(b) of      Yes.
 designed to minimize the amount of     this part requires       this part requires
 excess spoil or coal mine waste that   minimization of excess   minimization of excess
 the proposed operation will generate.  spoil.                   spoil.
(x) To the extent possible using the   Yes....................  Yes....................  Yes.
 best technology currently available,
 the proposed operation has been
 designed to minimize adverse impacts
 on fish, wildlife, and related
 environmental values.
(xi) The fish and wildlife             Not applicable.........  Not applicable.........  Yes.
 enhancement plan prepared under Sec.
   784.16 of this part includes
 measures that would fully and
 permanently offset any long-term
 adverse impacts on fish, wildlife,
 and related environmental values
 within the footprint of each excess
 spoil fill, coal mine waste refuse
 pile, and coal mine waste impounding
 structure.

[[Page 93375]]

 
(xii) Each excess spoil fill, coal     Not applicable.........  Not applicable.........  Yes.
 mine waste refuse pile, and coal
 mine waste impounding structure has
 been designed in a manner that will
 not result in the formation of toxic
 mine drainage.
(xiii) The revegetation plan prepared  Not applicable.........  Not applicable.........  Yes.
 under Sec.   784.12(g) of this part
 requires reforestation of each
 completed excess spoil fill if the
 land is forested at the time of
 application or if the land would
 revert to forest under conditions of
 natural succession.
----------------------------------------------------------------------------------------------------------------

    (2)(i) As part of a proposal to mine through an intermittent 
stream, you may propose to convert a minimal portion of the mined-
through segment of an intermittent stream to an ephemeral stream. The 
regulatory authority may approve the proposed conversion only if you 
demonstrate, and the regulatory authority finds, that the conversion 
would not degrade the hydrologic function, dynamic near-equilibrium, or 
the ecological function of the stream as a whole within the mined area, 
as determined by comparison with the stream assessment conducted under 
Sec.  784.19(c)(6) of this part.
    (ii) Paragraph (e)(2)(i) of this section does not apply to the 
circumstances described in paragraph (e)(5) of this section.
    (3)(i) Paragraphs (e)(1)(v) and (vii) of this section do not apply 
to a proposal to mine through a segment of an intermittent stream when 
that segment meets the criteria of paragraph (e)(3)(ii) of this 
section, provided you demonstrate, and the regulatory authority finds, 
that implementation of the proposed mining and reclamation plan--
    (A) Will improve the form of the stream segment;
    (B) Will improve the hydrologic function of the stream;
    (C) Is likely to result in improvement of the biological condition 
or ecological function of the stream;
    (D) Will not further degrade the hydrologic function, dynamic near-
equilibrium, biological condition, or ecological function of the 
stream; and
    (E) Will result in establishment of a streamside vegetative 
corridor for the stream segment in accordance with Sec.  817.57(d) of 
this chapter.
    (ii) To qualify for purposes of paragraph (e)(3)(i) of this 
section, a stream segment must display both of the following 
characteristics:
    (A) Prior anthropogenic activity has resulted in substantial 
degradation of the profile or dimensions of the stream channel; and
    (B) Degradation of the stream channel has resulted in a substantial 
adverse impact on the ecological function of the stream.
    (4) Paragraph (e)(1) of this section does not apply to a stream 
segment that will be part of a permanent impoundment approved and 
constructed under Sec.  817.49(b) of this chapter.
    (5) Paragraphs (e)(1)(iv) and (vii) of this section and the 
requirement for restoration of the hydrologic and ecological functions 
and the dynamic near-equilibrium of a stream in paragraph (e)(1)(viii) 
of this section do not apply to an intermittent stream segment if--
    (i) The intermittent segment is a minor interval in what is 
otherwise a predominantly ephemeral stream;
    (ii) You demonstrate, and the regulatory authority finds, that the 
intermittent segment has no significant fish, wildlife, or related 
environmental values, as documented by the baseline data collected 
under Sec.  784.19(c)(6) of this part; and
    (iii) You demonstrate, and the regulatory authority finds, that 
conversion of the intermittent stream segment will not adversely affect 
water uses.
    (f) What design requirements apply to the diversion, restoration, 
and reconstruction of perennial and intermittent stream channels? 
(1)(i) You must design permanent stream-channel diversions, temporary 
stream-channel diversions that will remain in use for 3 or more years, 
and stream channels to be reconstructed after the completion of mining 
to restore, approximate, or improve the premining characteristics of 
the original stream channel, to promote the recovery and enhancement of 
aquatic habitat and the ecological and hydrologic functions of the 
stream, and to minimize adverse alteration of stream channels on and 
off the site, including channel deepening or enlargement.
    (ii) Pertinent stream-channel characteristics include, but are not 
limited to, the baseline stream pattern, profile, dimensions, 
substrate, habitat, and natural vegetation growing in the riparian zone 
and along the banks of the stream.
    (iii) For temporary stream-channel diversions that will remain in 
use for 3 or more years, the vegetation proposed for planting along the 
banks of the diversion need not include species that would not reach 
maturity until after the diversion is removed.
    (2) You must design the hydraulic capacity of all temporary and 
permanent stream-channel diversions to be at least equal to the 
hydraulic capacity of the unmodified stream channel immediately 
upstream of the diversion, but no greater than the hydraulic capacity 
of the unmodified stream channel immediately downstream from the 
diversion.
    (3) You must design all temporary and permanent stream-channel 
diversions in a manner that ensures that the combination of channel, 
bank, and flood-plain configuration is adequate to pass safely the peak 
runoff of a 10-year, 6-hour precipitation event for a temporary 
diversion and a 100-year, 6-hour precipitation event for a permanent 
diversion.
    (4) You must submit a certification from a qualified registered 
professional engineer that the designs for all stream-

[[Page 93376]]

channel diversions and all stream channels to be reconstructed after 
the completion of mining meet the design requirements of this section 
and any additional design criteria established by the regulatory 
authority. This certification may be limited to the location, 
dimensions, and physical characteristics of the stream channel.
    (g) What requirements apply to establishment of standards for 
restoration of the ecological function of a stream? (1) If you propose 
to mine through a perennial or intermittent stream, the regulatory 
authority must establish standards for determining when the ecological 
function of the reconstructed stream has been restored. Your 
application must incorporate those standards and explain how you will 
meet them.
    (2) In establishing standards under paragraph (g)(1) of this 
section, the regulatory authority must coordinate with the appropriate 
agencies responsible for administering the Clean Water Act, 33 U.S.C. 
1251 et seq., to ensure compliance with all Clean Water Act 
requirements.
    (3)(i) The biological component of the standards established under 
paragraph (g)(1) of this section must employ the best technology 
currently available, as specified in paragraphs (g)(3)(ii) through (iv) 
of this section.
    (ii) For perennial streams, the best technology currently available 
includes an assessment of the biological condition of the stream, as 
determined by an index of biological condition or other scientifically-
defensible bioassessment protocols consistent with Sec.  
784.19(c)(6)(vii) of this part. Standards established under paragraph 
(g)(1) of this section for perennial streams--
    (A) Need not require that a reconstructed stream or stream-channel 
diversion have precisely the same biological condition or biota as the 
stream segment did before mining.
    (B) Must prohibit substantial replacement of pollution-sensitive 
species with pollution-tolerant species.
    (C) Must require that populations of organisms used to determine 
the biological condition of the reconstructed stream or stream-channel 
diversion be self-sustaining within that stream segment.
    (iii) Paragraph (g)(3)(ii) of this section also applies to 
intermittent streams whenever a scientifically defensible biological 
index and bioassessment protocol have been established for assessment 
of intermittent streams in the state or region in which the stream is 
located.
    (iv)(A) Except as provided in paragraph (g)(3)(iii) of this 
section, the best technology currently available for intermittent 
streams consists of the establishment of standards that rely upon 
restoration of the form, hydrologic function, and water quality of the 
stream and reestablishment of streamside vegetation as a surrogate for 
the biological condition of the stream.
    (B) The regulatory authority must reevaluate the best technology 
currently available for intermittent streams under paragraph 
(g)(3)(iv)(A) of this section at 5-year intervals. Upon conclusion of 
that evaluation, the regulatory authority must make any appropriate 
adjustments before processing permit applications submitted after the 
conclusion of that evaluation.
    (4) Standards established under paragraph (g)(1) of this section 
must ensure that the reconstructed stream or stream-channel diversion 
will not--
    (i) Preclude attainment of the designated uses of that stream 
segment under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), 
before mining, or, if there are no designated uses, the premining uses 
of that stream segment; or
    (ii) Result in that stream segment not meeting the applicable anti-
degradation requirements under section 303(c) of the Clean Water Act, 
33 U.S.C. 1313(c), as adopted by a state or authorized tribe or as 
promulgated in a federal rulemaking under the Clean Water Act.
    (h) What finding must the regulatory authority make before 
approving a permit application under this section? The regulatory 
authority may not approve an application that includes a proposal to 
conduct mining activities in a perennial or intermittent stream or on 
the surface of land within 100 feet of a perennial or intermittent 
stream unless it first makes a specific written finding that you have 
fully satisfied all applicable requirements of paragraphs (c) through 
(f) of this section. The finding must be accompanied by a detailed 
explanation of the rationale for the finding.
    (i) Programmatic alternative. Paragraphs (c) through (h) of this 
section will not apply to a state program approved under subchapter T 
of this chapter if that program is amended to expressly prohibit all 
mining activities, including the construction of stream-channel 
diversions, that would result in more than a de minimis disturbance of 
perennial or intermittent streams or the surface of land within 100 
feet of a perennial or intermittent stream.


Sec.  784.29  What information must I include in the surface-water 
runoff control plan?

    Your application must contain a surface-water runoff control plan 
that includes the following--
    (a)(1) An explanation of how you will handle surface-water runoff 
in a manner that will prevent peak discharges from the proposed permit 
area, both during and after mining and reclamation, from exceeding the 
premining peak discharge from the same area for the same-size 
precipitation event. You must use the appropriate regional Natural 
Resources Conservation Service synthetic storm distribution or another 
scientifically defensible method approved by the regulatory authority 
that takes into account the time of concentration to estimate peak 
discharges.
    (2) The explanation in paragraph (a)(1) of this section must 
consider the findings in the determination of the probable hydrologic 
consequences of mining prepared under Sec.  784.20 of this part.
    (b) A surface-water runoff monitoring and inspection program that 
will provide sufficient precipitation and stormwater discharge data for 
the proposed permit area to evaluate the effectiveness of the surface-
water runoff control practices under paragraph (a) of this section. The 
surface-water runoff monitoring and inspection program must specify 
criteria for monitoring, inspection, and reporting consistent with 
Sec.  817.34(d) of this chapter. The program must contain a monitoring-
point density that adequately represents the drainage pattern across 
the entire proposed permit area, with a minimum of one monitoring point 
per watershed discharge point.
    (c) Descriptions maps, and cross-sections of runoff-control 
structures. A runoff-control structure is any man-made structure 
designed to control or convey storm water runoff on or across a 
minesite. This term encompasses the entire surface water control system 
and includes diversion ditches, drainage benches or terraces, drop 
structures or check dams, all types of conveyance channels, downdrains, 
and sedimentation and detention ponds and associated outlets. It does 
not include swales or reconstructed perennial, intermittent, or 
ephemeral stream channels.
    (d) An explanation of how diversions will be constructed in 
compliance with Sec.  817.43 of this chapter.


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

    (a) Pre-subsidence survey. Each application must include--

[[Page 93377]]

    (1) A map of the proposed permit and adjacent areas at a scale no 
smaller than 1:12,000. The regulatory authority may require a larger-
scale or more detailed map. The map must show the location and type 
of--
    (i) Structures, renewable resource lands, wetlands, streams, and 
water bodies that subsidence may materially damage or for which the 
value or reasonably foreseeable use may be diminished by subsidence; 
and
    (ii) Drinking, domestic, and residential water supplies that could 
be contaminated, diminished, or interrupted by subsidence.
    (2) A narrative indicating whether subsidence, if it occurred, 
could cause material damage to or diminish the value or reasonably 
foreseeable use of such structures, renewable resource lands, wetlands, 
streams, or water bodies or could contaminate, diminish, or interrupt 
drinking, domestic, or residential water supplies.
    (3)(i) A survey of the quantity and quality of all drinking, 
domestic, and residential water supplies within the permit area and 
adjacent area that could be contaminated, diminished, or interrupted by 
subsidence.
    (ii) You, the applicant, must pay for any technical assessment or 
engineering evaluation used to determine the premining quantity and 
quality of drinking, domestic, or residential water supplies. You may 
use publicly available assessments conducted for research purposes by a 
university or government agency, provided those assessments are updated 
to reflect any changes that have occurred since completion of the 
study.
    (iii) You must provide copies of the survey and any technical 
assessment or engineering evaluation to the property owner and to the 
regulatory authority.
    (b) Conditions under which no subsidence control plan is needed. 
You do not need to submit a subsidence control plan if the survey 
conducted and information provided under paragraph (a) of this section 
show that--
    (1) No structures, drinking, domestic, or residential water 
supplies, renewable resource lands, wetlands, streams, or water bodies 
exist within the proposed permit and adjacent areas; or
    (2) There would be no material damage or diminution in value or 
reasonably foreseeable use of structures, lands, or features protected 
under Sec.  817.121(c) through (e) of this chapter, and no 
contamination, diminution, or interruption of water supplies protected 
under Sec.  817.40 of this chapter would occur as a result of mine 
subsidence, provided that the regulatory authority agrees with this 
conclusion.
    (c) Subsidence control plan. (1) Your application must include a 
subsidence control plan unless the conditions specified in paragraph 
(b) of this section exist.
    (2) The subsidence control plan must contain the following 
information:
    (i) A description of the method of coal removal, such as longwall 
mining, room-and-pillar removal or hydraulic mining, including the 
size, sequence and timing of the development of underground workings.
    (ii) A map of the underground workings that describes the location 
and extent of the areas in which planned-subsidence mining methods will 
be used and that identifies all areas where the measures described in 
paragraphs (c)(2)(iv), (v), and (vii) of this section will be taken to 
prevent or minimize subsidence and subsidence-related damage; and, when 
applicable, to correct subsidence-related material damage.
    (iii) A description of the physical conditions, such as depth of 
cover, seam thickness and lithology of overlying strata, that affect 
the likelihood or extent of subsidence and subsidence-related damage.
    (iv) A description of the monitoring, if any, needed to determine 
the commencement and degree of subsidence so that, when appropriate, 
other measures can be taken to prevent, reduce or correct material 
damage in accordance with Sec.  817.121(c) of this chapter.
    (v) Except for those areas where planned subsidence is projected to 
be used, a detailed description of the subsidence control measures that 
will be taken to prevent or minimize subsidence and subsidence-related 
damage to the extent technologically and economically feasible. Those 
measures may include, but are not limited to:
    (A) Backstowing of voids;
    (B) Leaving support pillars of coal;
    (C) Leaving areas in which no coal is removed, including a 
description of the overlying area to be protected by leaving coal in 
place; and
    (D) Taking measures on the surface to prevent or minimize material 
damage or diminution in value of the surface.
    (vi) A description of the anticipated effects of planned 
subsidence, if any, including impacts to wetlands, streams, and water 
bodies that support the value and reasonably foreseeable uses of 
surface lands.
    (vii) For those areas where planned subsidence is projected to be 
used, a description of methods to be employed to minimize damage from 
planned subsidence to non-commercial buildings and occupied residential 
dwellings and structures related thereto; or the written consent of the 
owner of the structure or facility that minimization measures not be 
taken; or, unless the anticipated damage would constitute a threat to 
health or safety, a demonstration that the costs of minimizing damage 
exceed the anticipated costs of repair.
    (viii) A description of the measures to be taken in accordance with 
Sec. Sec.  817.40 and 817.121(c) of this chapter to replace adversely 
affected protected water supplies or to mitigate or remedy any 
subsidence-related material damage to land, wetlands, streams, water 
bodies, and protected structures.
    (ix) Other information specified by the regulatory authority as 
necessary to demonstrate that the operation will be conducted in 
accordance with Sec.  817.121 of this chapter.


Sec.  784.31  What information must I provide concerning the protection 
of publicly owned parks and historic places?

    (a) For any publicly owned parks or any places listed on the 
National Register of Historic Places that may be adversely affected by 
the proposed operation, you must describe the measures to be used--
    (1) To prevent adverse impacts, or
    (2) If a person has valid existing rights, as determined under 
Sec.  761.16 of this chapter, or if joint agency approval is to be 
obtained under Sec.  761.17(d) of this chapter, to minimize adverse 
impacts.
    (b) The regulatory authority may require the applicant to protect 
historic or archeological properties listed on or eligible for listing 
on the National Register of Historic Places through appropriate 
mitigation and treatment measures. Appropriate mitigation and treatment 
measures may be required to be taken after permit issuance, provided 
that the required measures are completed before the properties are 
affected by any mining operation.


Sec.  784.33  What information must I provide concerning the relocation 
or use of public roads?

    Your application must describe, with appropriate maps and cross-
sections, the measures to be used to ensure that the interests of the 
public and landowners affected are protected if, under Sec.  761.14 of 
this chapter, you seek to have the regulatory authority approve--
    (a) Conducting the proposed surface mining activities within 100 
feet of the right-of-way line of any public road, except where mine 
access or haul roads join that right-of-way; or
    (b) Relocating a public road.

[[Page 93378]]

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

    (a) Applicability. This section applies to you, the permit 
applicant, if you propose to generate excess spoil as part of your 
operation.
    (b) Demonstration of minimization of excess spoil. (1) You must 
submit a demonstration, with supporting calculations and other 
documentation, that the operation has been designed to minimize, to the 
extent possible, the volume of excess spoil that the operation will 
generate.
    (2) The demonstration under paragraph (b)(1) of this section must 
explain, in quantitative terms, how the maximum amount of overburden 
will be returned to the mined-out area after considering--
    (i) Applicable regulations concerning backfilling, compaction, 
grading, and restoration of the approximate original contour.
    (ii) Safety and stability needs and requirements.
    (iii) The need for access and haul roads with their attendant 
drainage structures and safety berms during mining and reclamation. You 
may construct roads and their attendant drainage structures and safety 
berms on the perimeter of the backfilled area as necessary to conduct 
surface coal mining and reclamation operations, but, when the roads are 
no longer needed to support heavy equipment traffic, you must reduce 
the total width of roads and their attendant drainage structures and 
berms to be retained as part of the postmining land use to no more than 
20 feet unless you demonstrate an essential need for a greater width 
for the postmining land use.
    (iv) Needs and requirements associated with revegetation and the 
proposed postmining land use.
    (v) Any other relevant regulatory requirements, including those 
pertaining to water quality and protection of fish, wildlife, and 
related environmental values.
    (3) When necessary to avoid or minimize construction of excess 
spoil fills on undisturbed land, paragraph (b)(2)(i) of this section 
does not prohibit the placement of what would otherwise be excess spoil 
on the mined-out area to heights in excess of the premining elevation, 
provided that the final surface configuration is compatible with the 
surrounding terrain and generally resembles landforms found in the 
surrounding area.
    (4) You may not create a permanent impoundment under Sec.  
817.49(b) of this chapter or place coal combustion residues or noncoal 
materials in the surface excavation if doing so would result in the 
creation of excess spoil.
    (c) Preferential use of preexisting benches for excess spoil 
disposal. To the extent that your proposed operation will generate 
excess spoil, you must maximize the placement of excess spoil on 
preexisting benches in the vicinity of the proposed permit area in 
accordance with Sec.  817.74 of this chapter rather than constructing 
excess spoil fills on previously undisturbed land.
    (d) Fill capacity demonstration. You must submit a demonstration, 
with supporting calculations and other documentation, 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 calculated under paragraph (b) of this section.
    (e) Requirements related to perennial and intermittent streams. You 
must comply with the requirements of Sec.  784.28 of this part 
concerning activities in or near perennial or intermittent streams if 
you propose to construct an excess spoil fill in or within 100 feet of 
a perennial or intermittent stream. The 100-foot distance must be 
measured horizontally on a line perpendicular to the stream, beginning 
at the ordinary high water mark.
    (f) Location and profile. (1) You must submit maps and cross-
section drawings or models showing the location and profile of all 
proposed excess spoil fills.
    (2) You must locate fills on the most moderately sloping and 
naturally stable areas available. The regulatory authority will 
determine which areas area available, based upon the alternatives 
analysis under Sec.  784.28 of this part and other requirements of the 
Act and this chapter.
    (3) Whenever possible and consistent with the alternatives analysis 
and alternative selection requirements of Sec.  784.28 of this part, 
you must place fills on or above a natural terrace, bench, or berm if 
that location would provide additional stability and prevent mass 
movement.
    (g) Design plans. You must submit detailed design plans, including 
appropriate maps and cross-section drawings, for each proposed fill, 
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.
    (h) Geotechnical investigation. You must submit the results of a 
geotechnical investigation, with supporting calculations and analyses, 
of the site of each proposed fill, with the exception of those sites at 
which excess spoil will be placed only on a preexisting bench under 
Sec.  817.74 of this chapter. The information submitted must include--
    (1) Sufficient foundation investigations, as well as any necessary 
laboratory testing of foundation material, to determine the design 
requirements for foundation stability for each site.
    (2) A description of the character of the bedrock and any adverse 
geologic conditions in the area of the proposed fill.
    (3) The geographic coordinates and a narrative description of all 
springs, seepage, mine discharges, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed fill.
    (4) An analysis of the potential effects of any underground mine 
workings within the proposed permit and adjacent areas, including the 
effects of any subsidence that may occur as a result of previous, 
existing, and future underground mining operations.
    (5) A technical description of the rock materials to be used in the 
construction of fills underlain by a rock drainage blanket.
    (6) Stability analyses that address static and seismic conditions. 
The analyses must include, but are not limited to, strength parameters, 
pore pressures, and long-term seepage conditions. The analyses must be 
accompanied by a description of all engineering design assumptions and 
calculations and the alternatives considered in selecting the design 
specifications and methods.
    (i) Operation and reclamation plans. You must submit plans for the 
construction, operation, maintenance, and reclamation of all excess 
spoil fills in accordance with the requirements of Sec. Sec.  817.71 
through 817.74 of this chapter.
    (j) Additional requirements for bench cuts or rock-toe buttresses. 
If bench cuts or rock-toe buttresses are required under Sec.  
817.71(b)(2) of this chapter, you must provide the--
    (1) Number, location, and depth of borings or test pits, which must 
be determined according to the size of the fill and subsurface 
conditions.
    (2) Engineering specifications used to design the bench cuts or 
rock-toe buttresses. Those specifications must be based upon the 
stability analyses

[[Page 93379]]

required under paragraph (h)(6) of this section.
    (k) Design certification. A qualified registered professional 
engineer experienced in the design of earth and rock fills must certify 
that the design of each proposed fill and appurtenant structures meets 
the requirements of this section.


Sec.  784.37  What information must I provide concerning access and 
haul roads?

    (a) Design and other application requirements. (1) You, the 
applicant, must submit a map showing the location of all roads that you 
intend to construct or use within the proposed permit area, together 
with plans and drawings for each road to be constructed, used, or 
maintained within the proposed permit area.
    (2) You must include appropriate cross-sections, design drawings, 
and specifications for road widths, gradients, surfacing materials, 
cuts, fill embankments, culverts, bridges, drainage ditches, drainage 
structures, and fords and low-water crossings of perennial and 
intermittent streams.
    (3) You must demonstrate how all proposed roads will comply with 
the applicable requirements of Sec. Sec.  784.28, 817.150, and 817.151 
of this chapter.
    (4) You must identify--
    (i) Each road that you propose to locate in or within 100 feet, 
measured horizontally on a line perpendicular to the stream, beginning 
at the ordinary high water mark of a perennial or intermittent stream.
    (ii) Each proposed ford of a perennial or intermittent stream that 
you plan to use as a temporary route during road construction.
    (iii) Any plans to alter or relocate a natural stream channel.
    (iv) Each proposed low-water crossing of a perennial or 
intermittent stream channel.
    (5) You must explain why the roads, fords, and stream crossings 
identified in paragraph (a)(4) of this section are necessary and how 
they comply with the applicable requirements of Sec.  784.28 of this 
part and Sec. Sec.  817.150 and 817.151 of this chapter.
    (6) You must describe the plans to remove and reclaim each road 
that would not be retained as part of the postmining land use, and 
provide a schedule for removal and reclamation.
    (b) Primary road certification. The plans and drawings for each 
primary road must be prepared by, or under the direction of, and 
certified by a qualified registered professional engineer, or in any 
state that authorizes land surveyors to certify the design of primary 
roads, a qualified registered professional land surveyor, with 
experience in the design and construction of roads, as meeting the 
requirements of this chapter; current, prudent engineering practices; 
and any design criteria established by the regulatory authority.
    (c) Standard design plans. The regulatory authority may establish 
engineering design standards for primary roads through the regulatory 
program approval process, in lieu of engineering tests, to establish 
compliance with the minimum static safety factor of 1.3 for all 
embankments specified in Sec.  817.151(c) of this chapter.


Sec.  784.38  What information must I provide concerning support 
facilities?

    You must submit a description, plans, and drawings for each support 
facility to be constructed, used, or maintained within the proposed 
permit area. The plans and drawings must include a map, appropriate 
cross-sections, design drawings, and specifications sufficient to 
demonstrate compliance with Sec.  817.181 of this chapter for each 
facility.


Sec.  784.40  May I submit permit application information in increments 
as mining progresses?

    (a) You may request that the regulatory authority approve a 
schedule for incremental submission of the information required by this 
part, based on the anticipated progress and impact of underground 
mining activities.
    (b) Section 783.26(b) of this chapter applies to a request 
submitted under paragraph (a) of this section.
    (c) The monitoring plans submitted under Sec.  784.23 of this part 
may be structured and implemented in a manner consistent with the 
schedule approved under paragraph (b) of this section.


Sec.  784.200  [Reserved]

PART 785--REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING

0
27. The authority citation for part 785 continues to read as follows:

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

0
28. Revise Sec.  785.10 to read as follows:


Sec.  785.10  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 part 785 and assigned it control number 1029-0040. Collection of 
this information is required by sections510, 515, 701 and 711 of SMCRA, 
which requires applicants for special types of mining activities to 
provide pertinent descriptions, maps, plans, and data. The regulatory 
authority will use this information to determine whether you, the 
applicant, can meet the applicable performance standards for the 
special type of mining activity. You 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. Send comments regarding burden 
estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 203-SIB, 1951 Constitution Avenue NW., Washington, DC 
20240.

0
29. Revise Sec.  785.14 to read as follows:


Sec.  785.14  What special provisions apply to mountaintop removal 
mining operations?

    (a) Applicability. This section applies to you if you conduct or 
intend to conduct mountaintop removal mining, as that term is defined 
in Sec.  701.5 of this chapter.
    (b) Application and approval requirements. The regulatory authority 
may approve an application for a permit to conduct mountaintop removal 
mining operations, without regard to the approximate original contour 
restoration requirements of Sec. Sec.  816.102 and 816.105 of this 
chapter, if it first finds, in writing, on the basis of a complete 
application, that you have met the following requirements:
    (1) The proposed postmining land use of the lands to be disturbed 
is an industrial, commercial, agricultural, residential, or public 
facility (including recreational facilities) use.
    (2) After consultation with the appropriate land-use planning 
agencies, if any, the regulatory authority deems that the proposed 
postmining land use constitutes an equal or better economic or public 
use of the land compared with the premining use.
    (3) You have demonstrated compliance with the requirements for 
alternative postmining land uses in Sec.  780.24(b) of this chapter.
    (4) You have presented specific plans for the proposed postmining 
land use and appropriate assurances that the use will be--
    (i) Compatible with adjacent land uses.
    (ii) Obtainable according to data regarding expected need and 
market.
    (iii) Assured of investment in necessary public facilities.
    (iv) Supported by commitments from public agencies where 
appropriate.

[[Page 93380]]

    (v) Practicable with respect to private financial capability for 
completion of the proposed use.
    (vi) Planned pursuant to a schedule attached to the reclamation 
plan so as to integrate the mining operation and reclamation with the 
postmining land use.
    (5) The proposed operation has been designed by a registered 
engineer in conformance with professional standards established to 
assure the stability, drainage, and configuration necessary for the 
intended use of the site.
    (6) The proposed use is consistent with adjacent land uses and with 
existing state and local land use plans and programs.
    (7) The regulatory authority has provided, in writing, an 
opportunity of not more than 60 days to review and comment on the 
proposed use to--
    (i) The governing body of the unit of general-purpose government in 
whose jurisdiction the land is located; and
    (ii) Any state or federal agency that the regulatory authority, in 
its discretion, determines to have an interest in the proposed use.
    (8) You have demonstrated that the proposed operation has been 
designed to comply with the requirements of part 824 of this chapter.
    (9) You have demonstrated that the operation will not damage 
natural watercourses within the proposed permit and adjacent areas. You 
may meet this requirement by demonstrating that the proposed operation 
will comply with all of the following requirements:
    (i) The proposed operation will not increase the amount or 
concentration of parameters of concern in discharges to groundwater and 
surface water from the proposed permit area, when compared to the 
discharges that would occur if the operation were designed to adhere to 
approximate original contour restoration requirements.
    (ii) The proposed operation will not result in any greater adverse 
impact to the aquatic and terrestrial ecology of the proposed permit 
and adjacent area than would occur if the area to be mined was restored 
to its approximate original contour.
    (iii) The proposed operation will not result in changes in the size 
or frequency of peak flows from the proposed permit area that would 
cause an increase in flooding, when compared to the impacts that would 
occur if the operation were designed to adhere to approximate original 
contour restoration requirements.
    (iv) The total volume of flow from the proposed permit area, during 
every season of the year, will not vary in a way that would adversely 
affect any--
    (A) Designated use of a surface water located outside the proposed 
permit area under section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), or, if there are no designated uses, any premining use of a 
surface water located outside the proposed permit area.
    (B) Premining use of groundwater located outside the proposed 
permit area.
    (v) Any other demonstrations that the regulatory authority finds 
necessary to determine that no damage will occur to natural 
watercourses within the proposed permit and adjacent areas.
    (10) The revegetation plan proposed under Sec.  780.12(g) of this 
chapter requires that those portions of the proposed permit area that 
are forested at the time of application or that would revert to forest 
under conditions of natural succession be revegetated using native tree 
and understory species to the extent that this requirement is not 
inconsistent with attainment of the proposed postmining land use.
    (11) The proposed operation complies with all other requirements of 
the regulatory program.
    (c) Additional requirements for permit issuance. (1) The permit 
must specifically identify the acreage and location of the lands on 
which mountaintop removal mining operations will occur within the 
permit area.
    (2) The permit must include a condition prohibiting the release of 
any part of the bond posted for the permit under part 800 of this 
chapter until substantial implementation of the approved postmining 
land use is underway. The condition must provide that the prohibition 
does not apply to any portion of the bond that is in excess of an 
amount equal to the cost of regrading the site to its approximate 
original contour and revegetating the regraded land in the event that 
the approved postmining land use is not implemented.
    (3) The regulatory authority must clearly mark the permit issued 
under this part as including mountaintop removal mining operations.
    (d) Subsequent permit reviews. (1) The regulatory authority must 
review each permit issued under this section in accordance with Sec.  
774.10(a)(2) of this chapter.
    (2) The regulatory authority may modify the terms and conditions of 
a permit for mountaintop removal mining at any time if it determines 
that more stringent measures are necessary to insure that the operation 
is conducted in compliance with the requirements of the regulatory 
program.

0
30. Revise Sec.  785.16 to read as follows:


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

    (a) Application and approval requirements. The regulatory authority 
may issue a permit for non-mountaintop removal steep-slope surface coal 
mining operations that includes a variance from the approximate 
original contour restoration requirements in Sec. Sec.  816.102 and 
816.105 of this chapter, as referenced in Sec.  816.107 of this 
chapter, or Sec.  817.102 of this chapter, as referenced in Sec.  
817.107 of this chapter, for all or a portion of the permit area. The 
permit may contain this variance only if the regulatory authority 
finds, in writing, that you, the applicant, have demonstrated 
compliance with the following requirements on the basis of a complete 
application:
    (1) After reclamation, the lands within the proposed permit area to 
which the variance would apply will be suitable for an industrial, 
commercial, residential, or public (including recreational facilities) 
postmining land use.
    (2) The alternative postmining land use requirements of Sec.  
780.24(b) or Sec.  784.24(b) of this chapter have been met.
    (3) After consultation with the appropriate land use planning 
agencies, if any, the proposed use is shown to constitute an equal or 
better economic or public use.
    (4) Federal, state, and local government agencies with an interest 
in the proposed land use have an adequate period in which to review and 
comment on the proposed use.
    (5) A qualified registered professional engineer has certified that 
the operation has been designed in conformance with professional 
standards established to assure the stability, drainage, and 
configuration necessary for the intended use of the site.
    (6) The highwall will be completely backfilled with spoil material 
in a manner that results in a static factor of safety of at least 1.3, 
using standard geotechnical analysis methods.
    (7) Only the amount of spoil that is necessary to achieve the 
postmining land use, ensure the stability of spoil retained on the 
bench, and meet all other requirements of this chapter will be placed 
off the mine bench. All spoil not retained on the bench will be placed 
in accordance with Sec. Sec.  816.71 and 816.74 or Sec. Sec.  817.71 
and 817.74 of this chapter.
    (8) The variance will not result in the construction of a fill in a 
perennial or intermittent stream.

[[Page 93381]]

    (9) The proposed operation will improve the condition of the 
watershed of lands within the proposed permit and adjacent areas when 
compared either with the condition of the watershed before the proposed 
operation or with the condition that would exist if the site were mined 
and restored to the approximate original contour. The condition of the 
watershed will be deemed improved only if you demonstrate that the 
following criteria will be met, relative to one of the situations 
described in the preceding sentence:
    (i) The amount or concentration of total suspended solids or other 
parameters of concern in discharges to groundwater or surface water 
from the proposed permit area will be reduced.
    (ii) Flood hazards within the watershed containing the proposed 
permit area will be diminished by reduction of the size or frequency of 
peak-flow discharges from precipitation events or thaws.
    (iii) The total volume of flow from the proposed permit area, 
during every season of the year, will not vary in a way that would 
adversely affect any--
    (A) Designated use of a surface water located outside the proposed 
permit area under section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), or, if there are no designated uses, any premining use of a 
surface water located outside the proposed permit area;
    (B) Premining use of groundwater located outside the proposed 
permit area.
    (iv) The proposed operation will result in a lesser adverse impact 
on the aquatic ecology of the cumulative impact area than would occur 
if the area to be mined was restored to its approximate original 
contour.
    (v) The impact on perennial and intermittent streams within the 
proposed permit and adjacent areas will be less than the impact that 
would occur if the area to be mined was restored to its approximate 
original contour. The fish and wildlife enhancement measures proposed 
and approved under Sec.  780.16 or Sec.  784.16 of this chapter may be 
considered in making this determination.
    (vi) The appropriate state environmental agency has approved the 
plan.
    (10)(i) The owner of the surface of the lands within the proposed 
permit area has knowingly requested, in writing, as part of the 
application, that a variance be granted.
    (ii) The request to which paragraph (a)(10)(i) of this section 
refers must be made separately from any surface owner consent given for 
the operations under Sec.  778.15 of this chapter and it must show an 
understanding that the variance could not be granted without the 
surface owner's request.
    (iii) The permit application must include a copy of the request to 
which paragraph (a)(10)(i) of this section refers.
    (11) The proposed deviations from the premining surface 
configuration are necessary and appropriate to achieve the approved 
postmining land use.
    (12) The revegetation plan proposed under Sec.  780.12(g) or Sec.  
784.12(g) of this chapter requires the use of native tree and 
understory species to revegetate all portions of the permit area that 
are forested at the time of application or that would revert to forest 
under conditions of natural succession. This requirement does not apply 
to--
    (i) Permanent impoundments, roads, and other impervious surfaces to 
be retained following the completion of mining and reclamation.
    (ii) Those portions of the permit area covered by the variance, but 
only to the extent that compliance with this requirement would be 
inconsistent with attainment of the postmining land use.
    (b) Additional requirements for permit issuance. (1) The regulatory 
authority must specifically mark any permit issued under this section 
as containing an approved variance from approximate original contour 
restoration requirements.
    (2) The permit must include a condition prohibiting the release of 
any part of the bond posted for the permit under part 800 of this 
chapter until substantial implementation of the approved postmining 
land use is underway. The condition must provide that the prohibition 
does not apply to any portion of the bond that is in excess of an 
amount equal to the cost of regrading the site to its approximate 
original contour and revegetating the regraded land in the event that 
the approved postmining land use is not implemented.
    (c) Subsequent permit reviews. (1) The regulatory authority must 
review each permit incorporating a variance under this section in 
accordance with Sec.  774.10(a)(2) of this chapter.
    (2) The regulatory authority may modify the terms and conditions of 
a permit incorporating a variance under this section at any time if it 
determines that more stringent measures are necessary to ensure that 
the operations are conducted in compliance with the requirements of the 
regulatory program.
    (d) Miscellaneous provision. The regulatory authority may grant 
variances in accordance with this section only if it has promulgated 
specific rules to govern the granting of variances in accordance with 
the provisions of this section and any necessary more stringent 
requirements.

0
31. Revise Sec.  785.25 to read as follows:


Sec.  785.25  What special provisions apply to proposed operations on 
lands eligible for remining?

    (a) This section applies to you if you intend to apply for a permit 
to conduct surface coal mining operations on lands eligible for 
remining, as that term is defined in Sec.  701.5 of this chapter.
    (b)(1) Your application must comply with all applicable 
requirements of this subchapter.
    (2) In addition, to be eligible under the provisions of Sec.  
773.13 of this chapter concerning unanticipated events or conditions at 
remining sites, the application must--
    (i) To the extent possible, if not otherwise addressed in the 
permit application, identify potential environmental and safety 
problems that could reasonably be anticipated to occur as a result of 
prior mining activities within the proposed permit area. This 
identification must be based on a due diligence investigation that 
includes visual observations, a record review of past mining operations 
at or near the site, environmental sampling, and any other relevant 
available information, including data from prior mining activities and 
remining operations on similar sites.
    (ii) With regard to potential environmental and safety problems 
referred to in paragraph (b)(1)(i) of this section, describe the 
measures that will be taken to ensure that the applicable reclamation 
requirements of the regulatory program can and will be met.

SUBCHAPTER J--PERFORMANCE BOND, FINANCIAL ASSURANCE, AND INSURANCE 
REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS

0
32. Under the authority of 30 U.S.C. 1211(c)(2) and 1251(b), revise the 
heading for subchapter J to read as set forth above.

0
33. Revise part 800 to read as follows:

PART 800--PERFORMANCE BOND, FINANCIAL ASSURANCE, AND INSURANCE 
REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS

Sec.
800.1 Scope and purpose.
800.4 Regulatory authority responsibilities.
800.5 Definitions.
800.9 What requirements apply to alternative bonding systems?
800.10 Information collection.
800.11 When and how must I file a performance bond?

[[Page 93382]]

800.12 What types of performance bond are acceptable?
800.13 What is the liability period for a performance bond?
800.14 How will the regulatory authority determine the amount of 
performance bond required?
800.15 When must the regulatory authority adjust the bond amount and 
when may I request adjustment of the bond amount?
800.16 What are the general terms and conditions of the performance 
bond?
800.17 [Reserved]
800.18 What special provisions apply to financial guarantees for 
treatment of long-term discharges?
800.20 What additional requirements apply to surety bonds?
800.21 What additional requirements apply to collateral bonds?
800.23 What additional requirements apply to self-bonds?
800.30 When may I replace a performance bond or financial assurance 
and when must I do so?
800.40 How do I apply for release of all or part of a performance 
bond?
800.41 How will the regulatory authority process my application for 
bond release?
800.42 What are the criteria for bond release?
800.43 When and how must the regulatory authority provide 
notification of its decision on a bond release application?
800.44 Who may file an objection to a bond release application and 
how must the regulatory authority respond to an objection?
800.50 When and how will a performance bond be forfeited?
800.60 What liability insurance must I carry?
800.70 What special bonding provisions apply to anthracite 
operations in Pennsylvania?

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


Sec.  800.1  Scope and purpose.

    This part sets forth the minimum requirements for filing and 
maintaining bonds, financial assurances, and liability insurance 
policies for surface coal mining and reclamation operations under 
regulatory programs in accordance with the Act.


Sec.  800.4  Regulatory authority responsibilities.

    (a) The regulatory authority must prescribe and furnish forms for 
filing performance bonds and financial assurances.
    (b) The regulatory authority must prescribe by regulation terms and 
conditions for performance bonds, financial assurances, and liability 
insurance policies.
    (c) The regulatory authority must determine the amount of the bond 
for each area to be bonded, in accordance with Sec.  800.14 of this 
part. The regulatory authority also must adjust the bond amount as 
acreage in the permit area is revised or when other relevant conditions 
change, in accordance with Sec.  800.15 of this part. In addition, the 
regulatory authority must determine the amount of financial assurance 
required to ensure long-term treatment of discharges under Sec.  800.18 
of this part, monitor trust performance, and require adjustments of the 
financial assurance as necessary.
    (d) The regulatory authority may accept a self-bond if the 
requirements of Sec.  800.23 of this part and any additional 
requirements in the regulatory program are met. However, a state or 
tribal regulatory program need not authorize the use of self-bonds.
    (e) The regulatory authority must release liability under a bond or 
financial assurance instrument in accordance with Sec. Sec.  800.40 
through 800.44 of this part.
    (f) If the conditions specified in Sec.  800.50 of this part occur, 
the regulatory authority must take appropriate action to cause all or 
part of a bond or financial assurance to be forfeited in accordance 
with procedures of that section.
    (g) The regulatory authority must require in the permit that 
adequate bond and financial assurance coverage be in effect at all 
times. Except as provided in Sec.  800.30(b) of this part, operating 
without adequate bond or financial assurance is a violation of these 
rules and the terms and conditions of the permit.


Sec.  800.5  Definitions.

    Collateral bond means an indemnity agreement in a sum certain, 
executed by the permittee as principal, which is supported by the 
deposit with the regulatory authority of one or more of the following:
    (1) A cash account, which must be the deposit of cash--
    (i) In one or more federally-insured or equivalently protected 
accounts, payable only to the regulatory authority upon demand; or
    (ii) Directly with the regulatory authority.
    (2) Negotiable bonds of the United States, a state, or a 
municipality, endorsed to the order of, and placed in the possession 
of, the regulatory authority.
    (3) Negotiable certificates of deposit, made payable or assigned to 
the regulatory authority and placed in its possession or held by a 
federally-insured bank.
    (4) An irrevocable letter of credit of any bank organized or 
authorized to transact business in the United States, payable only to 
the regulatory authority upon presentation.
    (5) A perfected, first-lien security interest in real property in 
favor of the regulatory authority.
    (6) Other securities with a rating of ``A'' or higher from either 
Moody's Investors Service or Standard and Poor's or an equivalent 
rating issued by any other nationally recognized statistical rating 
organization registered with the Securities and Exchange Commission, 
endorsed to the order of, and placed in the possession of, the 
regulatory authority.
    Financial assurance is a type of alternative bonding system that 
consists of a trust, an annuity, or a combination thereof.
    Self-bond means an indemnity agreement in a sum certain executed by 
the applicant or by the applicant and any corporate guarantor and made 
payable to the regulatory authority, with or without separate surety.
    Surety bond means an indemnity agreement in a sum certain payable 
to the regulatory authority, executed by the permittee as principal, 
which is supported by the performance guarantee of a corporation 
licensed to do business as a surety in the state where the operation is 
located.


Sec.  800.9  What requirements apply to alternative bonding systems?

    (a) Criteria for approval. OSMRE may approve an alternative bonding 
system as part of a state or federal regulatory program if the system 
will achieve the following objectives and purposes of the bonding 
program:
    (1) The alternative must assure that the regulatory authority will 
have available sufficient money to complete the reclamation plan for 
any areas which may be in default at any time, except as provided in 
paragraphs (c) and (d) of this section.
    (2) The alternative must provide a substantial economic incentive 
for the permittee to comply with all reclamation provisions.
    (b) Relationship to other bonding regulations. (1) The alternative 
bonding system will apply in lieu of the requirements of Sec. Sec.  
800.12 through 800.23 of this part, with the exception of those 
provisions of Sec.  800.18 of this part that apply to financial 
assurances established to guarantee long-term treatment of discharges, 
to the extent specified in the regulatory program provisions 
establishing the alternative bonding system and the terms of approval 
under part 732 of this chapter.
    (2) The alternative bonding system must include appropriate 
conforming modifications to the bond release

[[Page 93383]]

provisions of Sec. Sec.  800.40 through 800.44 of this part and the 
bond forfeiture provisions of Sec.  800.50 of this part.
    (c) Partial alternative bonding systems. An alternative bonding 
system may be structured to include only certain phases of mining and 
reclamation under Sec.  800.42 of this part, provided that the other 
phases of mining and reclamation are covered by one of the types of 
bond listed in Sec.  800.12 of this part.
    (d) Discharges that require long-term treatment. (1) Except as 
provided in paragraphs (d)(2) and (3) of this section, a discharge 
requiring long-term treatment is not eligible for coverage under an 
alternative bonding system, other than a financial assurance under 
Sec.  800.18 of this part, unless the permittee contributes cash in an 
amount equal to the present value of all costs that the regulatory 
authority estimates that the alternative bonding system will incur to 
treat the discharge for as long as the discharge requires active or 
passive treatment, taking into account the expenses listed in Sec.  
800.18(c)(2)(i) through (v) of this part. If the alternative bonding 
system will receive interest or other earnings on the cash 
contribution, the regulatory authority may deduct the present value of 
those estimated earnings from the present value of all estimated 
expenses when calculating the amount of the required cash contribution.
    (2)(i) The regulatory authority must amend an alternative bonding 
system, other than a financial assurance under Sec.  800.18 of this 
part, that we approved as part of a regulatory program under subchapter 
T of this chapter before January 19, 2017 to specify that any permittee 
responsible for a discharge requiring long-term treatment must make the 
cash contribution required under paragraph (d)(1) of this section if 
the permittee elects to retain coverage of discharge treatment under 
the alternative bonding system.
    (ii) An alternative bonding system, other than a financial 
assurance under Sec.  800.18 of this part, that we approved as part of 
a regulatory program under subchapter T of this chapter before January 
19, 2017 must continue to provide coverage for long-term treatment of 
discharges from operations included within the system until we approve 
the program amendment to which paragraph (d)(2)(i) of this section 
refers and the permittee makes the cash contribution required by the 
state program counterpart to paragraph (d)(1) of this section, unless 
the permittee posts a separate financial assurance, collateral bond, or 
surety bond to cover that liability.
    (iii) An alternative bonding system, other than a financial 
assurance under Sec.  800.18 of this part, that we approved as part of 
a regulatory program under subchapter T of this chapter before January 
19, 2017 must continue to provide coverage for long-term treatment of 
discharges from operations included within the system if the permittee 
does not make the cash contribution required by the state program 
counterpart to paragraph (d)(1) of this section, unless the permittee 
posts a separate financial assurance, collateral bond, or surety bond 
to cover that liability.
    (iv) Paragraphs (d)(2)(i) through (iii) of this section do not 
apply to an alternative bonding system that we approved as part of a 
regulatory program under subchapter T of this chapter if the system 
that we approved includes an exclusion for coverage of discharges that 
require long-term treatment.
    (3) An alternative bonding system to which paragraphs (d)(1) and 
(2) of this section apply may elect to provide secondary coverage for 
long-term treatment of discharges when the permittee posts a financial 
assurance, collateral bond, or surety bond to cover anticipated 
treatment costs in lieu of making the cash contribution required by 
paragraph (d)(1) of this section to retain or obtain primary coverage 
under the alternative bonding system. The regulatory authority must 
establish terms and conditions for the secondary coverage.


Sec.  800.10  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 it control number 1029-0043. The regulatory 
authority uses information collected under this part to ensure that 
bond, insurance, and financial assurance instruments are valid and meet 
all requirements of section 509 of SMCRA, which requires that persons 
planning to conduct surface coal mining operations first post a 
performance bond to guarantee fulfillment of all reclamation 
obligations under the approved permit. The regulatory authority also 
uses information collected under this part to ensure compliance with 
the bond release requirements and procedures of section 519 of SMCRA, 
the liability insurance requirements of section 507(f) of SMCRA, and 
bond forfeiture requirements and procedures. Persons planning to 
conduct surface coal mining 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. Send comments regarding burden 
estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 203-SIB, 1951 Constitution Avenue NW., Washington, DC 
20240.


Sec.  800.11  When and how must I file a performance bond?

    (a) After approving a permit application submitted under subchapter 
G of this chapter, the regulatory authority may not issue the permit 
until you, the permit applicant, file one of the following:
    (1) A performance bond or bonds for the entire permit area;
    (2) A cumulative bond schedule and the performance bond required 
for full reclamation of the initial area to be disturbed; or
    (3) An incremental bond schedule and the performance bond required 
for the first increment in the schedule.
    (b) The bond or bonds that you file under paragraph (a) of this 
section must be--
    (1) In an amount determined under Sec.  800.14 of this part.
    (2) On a form prescribed and furnished by the regulatory authority.
    (3) Made payable to the regulatory authority.
    (4) Conditioned upon the faithful performance of all the 
requirements of the regulatory program and the permit, including the 
reclamation plan.
    (c) If the bond or bonds filed under paragraph (a) of this section 
cover only an identified increment of land within the permit area upon 
which you will initiate and conduct surface coal mining operations 
during the initial term of the permit, you must--
    (1) Identify the initial and successive areas or increments for 
bonding on the permit application map submitted under part 780 or part 
784 of this chapter and specify the bond amount to be provided for each 
area or increment.
    (2) Ensure that independent increments are of sufficient size and 
configuration to provide for efficient reclamation operations should 
reclamation by the regulatory authority become necessary pursuant to 
Sec.  800.50 of this part.
    (3) File additional bond or bonds with the regulatory authority to 
cover each succeeding increment before you initiate and conduct surface 
coal mining operations on that increment. The bond

[[Page 93384]]

or bonds must comply with paragraph (b) of this section.
    (d) You may not disturb any surface area or extend any vertical 
underground mine shaft or other vertical underground mine opening for 
which a performance bond is required before the regulatory authority 
accepts the performance bond required for that area or extension.


Sec.  800.12  What types of performance bond are acceptable?

    (a) Except as provided in paragraphs (b) through (d) of this 
section, the regulatory authority may allow you to post any of the 
following types of performance bond:
    (1) A surety bond;
    (2) A collateral bond;
    (3) A self-bond; or
    (4) A combination of any of these types of performance bond.
    (b) An alternative bonding system approved under Sec.  800.9 of 
this part may accept either more or fewer types of performance bond 
than those listed in paragraph (a) of this section.
    (c) To guarantee long-term treatment of a discharge under Sec.  
800.18 of this part, the regulatory authority may accept a--
    (1) Financial assurance;
    (2) Collateral bond; or
    (3) Surety bond.
    (d) The regulatory authority may accept any type of performance 
bond listed in paragraph (a) of this section, other than a self-bond, 
to guarantee restoration of the ecological function of a perennial or 
intermittent stream under Sec. Sec.  780.28(e) and (g), 784.28(e) and 
(g), 816.57(g), and 817.57(g) of this chapter.


Sec.  800.13  What is the liability period for a performance bond?

    (a)(1) Liability under the performance bond will be for the 
duration of the surface coal mining and reclamation operation and for a 
period coincident with the period of extended responsibility for 
successful revegetation under Sec.  816.115 or Sec.  817.115 of this 
chapter or until achievement of the reclamation requirements of the 
regulatory program and the permit, whichever is later.
    (2) With the approval of the regulatory authority, you may post a 
performance bond to guarantee specific phases of reclamation within the 
permit area, provided that the sum of the phase bonds posted equals or 
exceeds the total performance bond amount required under Sec. Sec.  
800.14 and 800.15 of this part. The scope of work to be guaranteed and 
the liability assumed under each phase bond must be specified in 
detail.
    (b) Isolated and clearly defined portions of the permit area 
requiring extended liability may be separated from the original area 
and bonded separately with the approval of the regulatory authority, 
with the following provisos:
    (1) These areas must be limited in extent and not constitute a 
scattered, intermittent, or checkerboard pattern of failure.
    (2) The regulatory authority must include any necessary access 
roads or routes in the area under extended liability.
    (c) If the regulatory authority approves a long-term, intensive 
agricultural postmining land use, the revegetation responsibility 
period specified under Sec.  816.115 or Sec.  817.115 of this chapter 
will start on the date of initial planting for the long-term 
agricultural use.
    (d)(1) The bond liability of the permittee includes only those 
actions that the permittee is required to perform under the permit and 
regulatory program to complete the reclamation plan for the area 
covered by the bond.
    (2) The performance bond does not cover implementation of the 
approved postmining land use or uses. The permittee is responsible only 
for restoring the site to conditions capable of supporting the uses 
specified in Sec.  816.133 or Sec.  817.133 of this chapter.
    (3) Performance bond liability for prime farmland historically used 
for cropland includes meeting the productivity requirement specified in 
Sec.  800.42(c) of this part.
    (4) Section 800.18 of this part specifies the liability for long-
term treatment of discharges.


Sec.  800.14  How will the regulatory authority determine the amount of 
performance bond required?

    (a) The regulatory authority must determine the amount of the 
performance bond required for the permit or permit increment based 
upon, but not limited to--
    (1) The requirements of the permit, including the reclamation plan.
    (2) The probable difficulty of reclamation, giving consideration to 
the topography, geology, hydrology, and revegetation potential of the 
permit area.
    (3) The estimated reclamation costs submitted by the permit 
applicant.
    (b) The amount of the performance bond must be sufficient to assure 
the completion of the reclamation plan if the work has to be performed 
by a third party under contract with the regulatory authority in the 
event of forfeiture.
    (c) The amount of financial assurance, collateral bond, or surety 
bond required to guarantee long-term treatment of discharges must be 
determined in accordance with Sec.  800.18 of this part.
    (d) The total performance bond initially posted for the entire area 
under one permit may not be less than $10,000.
    (e) The permittee's financial responsibility under Sec.  817.121(c) 
of this chapter for repairing or compensating for material damage 
resulting from subsidence may be satisfied by the liability insurance 
policy required under Sec.  800.60 of this part.


Sec.  800.15  When must the regulatory authority adjust the performance 
bond amount and when may I request adjustment of the bond amount?

    (a) The regulatory authority must adjust the amount of performance 
bond required and, if needed, the terms of the acceptance when--
    (1) The area requiring bond coverage increases or decreases.
    (2) The unit cost or scope of future reclamation changes as a 
result of technological advances, revisions to the operation or 
reclamation plans in the permit, or external factors. The regulatory 
authority may specify periodic times or set a schedule for reevaluating 
and adjusting the bond amount to fulfill this requirement.
    (b) The permittee may request at any time that the regulatory 
authority reduce the amount of the performance bond based upon 
submission of evidence that the permittee's method of operation or 
other circumstances will reduce the estimated unit costs for the 
regulatory authority to reclaim the bonded area.
    (c) Bond reductions under paragraphs (a) and (b) of this section 
are not subject to the bond release requirements and procedures of 
Sec. Sec.  800.40 through 800.44 of this part.
    (d) The regulatory authority may not use the provisions of this 
section to reduce the amount of the performance bond to reflect changes 
in the cost of reclamation resulting from completion of activities 
required under the reclamation plan. Bond reduction for completed 
reclamation activities must comply with the bond release requirements 
and procedures of Sec. Sec.  800.40 through 800.44 of this part.
    (e) Before making a bond adjustment, the regulatory authority 
must--
    (1) Notify the permittee, the surety, and any person with a 
property interest in collateral who has requested notification under 
Sec.  800.21(f) of this part of any proposed adjustment to the bond 
amount; and
    (2) Provide the permittee an opportunity for an informal conference 
on the adjustment.
    (f) In the event that an approved permit is revised in accordance 
with subchapter G of this chapter, the

[[Page 93385]]

regulatory authority must review the bond amount for adequacy and, if 
necessary, require adjustment of the bond amount to conform to the 
permit as revised. This provision may not be used to reduce bond 
amounts on the basis of completion of reclamation activities, in whole 
or in part.
    (g) The regulatory authority must require that the permittee post a 
financial assurance, collateral bond, or surety bond in accordance with 
Sec.  800.18 of this part whenever it identifies a discharge that will 
require long-term treatment.
    (h) The regulatory authority may not reduce the bond amount when 
the permittee does not restore the approximate original contour as 
required or when the reclamation plan does not reflect the level of 
reclamation required under the regulatory program.


Sec.  800.16  What are the general terms and conditions of a 
performance bond?

    (a) The performance bond must be in an amount determined by the 
regulatory authority as provided in Sec.  800.14 of this part.
    (b) The performance bond must be payable to the regulatory 
authority.
    (c) The performance bond must be conditioned upon faithful 
performance of all the requirements of the regulatory program and the 
approved permit, including completion of the reclamation plan.
    (d) The duration of the bond must be for the time provided in Sec.  
800.13 of this part.
    (e) The bond must provide a mechanism for a bank, surety, or other 
responsible financial entity to give prompt notice to the regulatory 
authority and the permittee of any action filed alleging the insolvency 
or bankruptcy of the surety, the bank, or other responsible financial 
entity, or alleging any violations that would result in suspension or 
revocation of the firm's charter or license to do business.


Sec.  800.17  [Reserved]


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

    (a) Applicability. (1) This section applies to any discharge 
resulting from surface coal mining operations, underground mining 
activities, or other activities or facilities regulated under this 
title whenever both the discharge and the need to treat the discharge 
continue or may reasonably be expected to continue after the completion 
of mining, backfilling, grading, and the establishment of revegetation. 
For purposes of this section, the term discharge includes both 
discharges to surface water and discharges to groundwater.
    (2) This section also applies whenever information available to the 
regulatory authority documents that a discharge of the nature described 
in paragraph (a)(1) of this section will develop in the future, 
provided that the quantity and quality of the future discharge can be 
determined with reasonable probability.
    (3) Paragraphs (a)(1) and (2) of this section apply only to 
discharges that are not anticipated at the time of permit application 
approval. Those paragraphs do not authorize approval of a permit 
application for a proposed operation that anticipates creating a 
discharge for which long-term treatment would be required.
    (4) As provided in Sec.  800.18(g) of this part, the regulatory 
authority must require adjustment of the bond amount whenever it 
becomes aware of a situation described in paragraph (a)(1) or (2) of 
this section.
    (b) Acceptable bonding mechanisms. (1) Except as provided in 
paragraph (b)(2) of this section, you, the permittee, must post a 
financial assurance, a collateral bond, or a surety bond to guarantee 
treatment or abatement of discharges requiring long-term treatment.
    (2) Operations with discharges in states with an alternative 
bonding system (other than a financial assurance) approved under 
subchapter T of this chapter must comply with the requirements of the 
applicable alternative bonding system.
    (c) Calculation of amount of financial assurance or performance 
bond. (1) If you elect to post a financial assurance under paragraph 
(b)(1) of this section, the regulatory authority must calculate the 
amount of financial assurance required in the manner provided in 
paragraph (d) of this section.
    (2) If you elect to post a collateral bond or surety bond under 
paragraph (b)(1) of this section, the bond amount must be no less than 
the present value of the funds needed to pay for--
    (i) Treatment of the discharge in perpetuity, unless you 
demonstrate, and the regulatory authority finds, based upon available 
evidence, that treatment will be needed for a lesser time, either 
because the discharge will attenuate or because its quality will 
improve;
    (ii) Treatment of the discharge during the time required to forfeit 
and collect the bond;
    (iii) Maintenance, renovation, and replacement of treatment and 
support facilities as needed;
    (iv) Final reclamation of sites upon which treatment facilities are 
located and areas used in support of those facilities; and
    (v) Administrative costs borne by the regulatory authority.
    (d) Requirements for financial assurances. (1) The trust or annuity 
must be established in a manner that guarantees that sufficient moneys 
will be available when needed to pay for--
    (i) Treatment of discharges in perpetuity, unless the permittee 
demonstrates, and the regulatory authority finds, based upon available 
evidence, that treatment will be needed for a lesser time, either 
because the discharge will attenuate or because its quality will 
improve. The regulatory authority may accept arrangements that allow 
the permittee to build the amount of the trust or annuity over time, 
provided--
    (A) The permittee continues to treat the discharge during that 
time; and
    (B) The regulatory authority retains all performance bonds posted 
for the permit or permit increment until the trust or annuity reaches a 
self-sustaining level as determined by the regulatory authority.
    (ii) Maintenance, renovation, and replacement of treatment and 
support facilities as needed.
    (iii) Final reclamation of the sites upon which treatment 
facilities are located and areas used in support of those facilities.
    (iv) Administrative costs borne by the regulatory authority or 
trustee to implement paragraphs (d)(1)(i) through (iii) of this 
section.
    (2) The regulatory authority must require that the investment 
portfolio held by the trust or annuity prudently account for:
    (i) The expected duration of the treatment obligation;
    (ii) The need to provide a guarantee of uninterrupted treatment; 
and
    (iii) Whether any other financial guarantee covers a portion of the 
treatment obligation. If the financial assurance will provide the only 
financial guarantee of treatment, the regulatory authority must require 
that the trust or annuity hold a low-risk investment portfolio.
    (3) In determining the required amount of the trust or annuity, the 
regulatory authority must base present value calculations on a 
conservative anticipated real rate of return on the proposed 
investments. The rate of return must be net of management or trustee 
fees.
    (4)(i) The trust or annuity must be in a form approved by the 
regulatory authority and contain all terms and conditions required by 
the regulatory authority.

[[Page 93386]]

    (ii) When appropriate, the terms and conditions must include a 
mechanism whereby the regulatory authority may require the permittee to 
grant the trustee the real and personal property rights necessary to 
continue treatment in the event that the permittee ceases treatment. 
These rights include, but are not limited to, access to and use of the 
treatment site and ownership of treatment facilities and equipment.
    (5) The trust or annuity must irrevocably establish the regulatory 
authority as the beneficiary of the trust or of the proceeds from the 
annuity for the purpose of treating mine drainage or other mining-
related discharges to protect the environment and users of surface 
water.
    (6) The trust or annuity must provide that disbursement of money 
from the trust or annuity may be made only upon written authorization 
of the regulatory authority or according to a schedule established in 
the agreement accompanying the trust or annuity.
    (7) A financial institution or company serving as a trustee or 
issuing an annuity must be one of the following:
    (i) A national bank chartered by the Office of the Comptroller of 
the Currency.
    (ii) An operating subsidiary of a national bank chartered by the 
Office of the Comptroller of the Currency.
    (iii) A bank or trust company chartered by the state in which the 
operation is located.
    (iv) An insurance company licensed or authorized to do business in 
the state in which the operation is located or designated by the 
pertinent regulatory body of that state as an eligible surplus lines 
insurer.
    (v) Any other financial institution or company authorized to do 
business in the state in which the operation is located, provided 
that--
    (A) The institution's or company's activities are examined or 
regulated by a state or federal agency; and
    (B) The institution or company has trust powers satisfactory to the 
regulatory authority.
    (8) The regulatory authority may allow a not-for-profit 
organization under section 501(c)(3) of the Internal Revenue Code to 
serve as a trustee if--
    (i) The organization maintains appropriate professional liability 
insurance coverage; and
    (ii) The regulatory authority determines that the organization has 
demonstrated the financial and technical capability to manage trusts 
and assume day-to-day operation of the trust and treatment facility in 
the event of a default.
    (9) The permittee or the regulatory authority must procure a new 
trustee when the trustee's administration of the trust or annuity is 
unsatisfactory to the regulatory authority.
    (e) Termination of a financial assurance instrument. Termination of 
a trust or annuity may occur only as specified by the regulatory 
authority upon a determination that one of the following situations 
exists--
    (1) No further treatment or other reclamation measures are 
necessary, in which case paragraph (h) of this section will apply.
    (2) A satisfactory replacement financial assurance or bond has been 
posted in accordance with paragraph (g) of this section.
    (3) The terms of the trust or annuity establish conditions for 
termination and those conditions have been met.
    (f) Regulatory authority review and adjustment of amount of 
financial assurance. (1) The regulatory authority must establish a 
schedule for reviewing the performance of the trustee, the adequacy of 
the trust or annuity, and the accuracy of the assumptions upon which 
the trust or annuity is based. This review must occur on at least an 
annual basis.
    (2) The regulatory authority must require that the permittee 
provide additional resources to the trust or annuity whenever the 
review conducted under paragraph (f)(1) of this section or any other 
information available to the regulatory authority at any time 
demonstrates that the financial assurance is no longer adequate to meet 
the purpose for which it was established.
    (g) Replacement of financial assurance. With the approval of the 
regulatory authority, a financial assurance may be replaced in 
accordance with the provisions of Sec.  800.30(a) of this part.
    (h) Release of liability. Release of reclamation liabilities and 
obligations under a financial assurance is subject to the applicable 
bond release provisions of Sec. Sec.  800.40 through 800.44 of this 
part.
    (i) Effect of financial assurance on release of bond. The permittee 
may apply for, and the regulatory authority may approve, release of any 
bonds posted for the permit or, if the permittee uses incremental 
bonding, the permit increment for which the regulatory authority has 
approved a financial assurance under this section, provided that the 
permittee and the regulatory authority comply with the bond release 
requirements and procedures in Sec. Sec.  800.40 through 800.44 of this 
part. This provision applies only if the following conditions exist--
    (1) The financial assurance is both in place and fully funded.
    (2) The permit or permit increment fully meets all applicable 
reclamation requirements, with the exception of the discharge and the 
presence of associated treatment and support facilities.
    (3) The financial assurance will serve as the bond for reclamation 
of the portion of the permit area required for postmining water 
treatment facilities and access to those facilities.


Sec.  800.20  What additional requirements apply to surety bonds?

    (a) A surety bond must be executed by the permittee and a corporate 
surety licensed to do business in the state where the operation is 
located.
    (b) Surety bonds must be noncancellable during their terms, except 
that surety bond coverage for undisturbed lands may be cancelled with 
the prior consent of the regulatory authority. Within 30 days after 
receipt of a notice to cancel bond, the regulatory authority will 
advise the surety whether the bond may be cancelled on an undisturbed 
area.
    (c) The regulatory authority may decline to accept a surety bond 
if, in the judgment of the regulatory authority, the surety does not 
have resources sufficient to cover the default of one or more mining 
companies for which the surety has provided bond coverage.


Sec.  800.21  What additional requirements apply to collateral bonds?

    (a) Collateral bonds, except for letters of credit, cash accounts, 
and real property, are subject to the following conditions:
    (1) The regulatory authority must keep custody of collateral 
deposited by the applicant or permittee until authorized for release or 
replacement as provided in this part.
    (2) The regulatory authority must value collateral at its current 
market value, not at face value.
    (3) The regulatory authority must require that certificates of 
deposit be made payable to or assigned to the regulatory authority, 
both in writing and upon the records of the bank or other financial 
institution issuing the certificates. If assigned, the regulatory 
authority must require the bank or other financial institution issuing 
the certificate to waive all rights of setoff or liens against the 
certificate.
    (4) The regulatory authority may not accept an individual 
certificate of deposit in an amount in excess of the maximum amount 
insured by the Federal Deposit Insurance Corporation.
    (b) Letters of credit are subject to the following conditions:

[[Page 93387]]

    (1) The letter may be issued only by a bank organized or authorized 
to do business in the United States;
    (2) Letters of credit must be irrevocable during their terms.
    (3) The letter of credit must be payable to the regulatory 
authority upon demand, in part or in full, upon receipt from the 
regulatory authority of a notice of forfeiture issued in accordance 
with Sec.  800.50 of this part.
    (4) If the permittee has not replaced a letter of credit with 
another letter of credit or other suitable bond at least 30 days before 
the letter's expiration date, the regulatory authority must draw upon 
the letter of credit and use the cash received as a replacement bond.
    (c) Real property posted as a collateral bond must meet the 
following conditions:
    (1) The applicant or permittee must grant the regulatory authority 
a first mortgage, first deed of trust, or perfected first-lien security 
interest in real property with a right to sell or otherwise dispose of 
the property in the event of forfeiture under Sec.  800.50 of this 
part.
    (2) In order for the regulatory authority to evaluate the adequacy 
of the real property offered to satisfy collateral requirements, the 
applicant or permittee must submit a schedule of the real property to 
be mortgaged or pledged to secure the obligations under the indemnity 
agreement. The schedule must include--
    (i) A description of the property;
    (ii) The fair market value as determined by an independent 
appraisal conducted by a certified appraiser; and
    (iii) Proof of possession and title to the real property.
    (3) The property may include land that is part of the permit area. 
However, land pledged as collateral for a bond under this section may 
not be disturbed under any permit while it is serving as security under 
this section.
    (4) The appraised fair market value determined under paragraph 
(c)(2)(ii) of this section is not the bond value of the real estate. In 
calculating the bond value of real estate, the regulatory authority 
must discount the appraised fair market value to account for the 
administrative costs of liquidating real estate, the probability of a 
forced sale in the event of forfeiture, and a contingency reserve for 
unanticipated costs including, but not limited to, unpaid real estate 
taxes, liens, property maintenance expenses, and insurance premiums.
    (d) Cash accounts are subject to the following conditions:
    (1) The regulatory authority may authorize the permittee to 
supplement the bond through the establishment of a cash account in one 
or more federally insured or equivalently protected accounts made 
payable upon demand to, or deposited directly with, the regulatory 
authority. The total bond, including the cash account, may not be less 
than the amount determined under Sec.  800.14 of this part, as modified 
by any adjustments under Sec.  800.15 of this part, less any amounts 
released under Sec. Sec.  800.40 through 800.44 of this part.
    (2) Any interest paid on a cash account will be retained in the 
account and applied to the bond value of the account unless the 
regulatory authority has approved the payment of interest to the 
permittee.
    (3) Certificates of deposit may be substituted for a cash account 
with the approval of the regulatory authority.
    (4) The regulatory authority may not accept an individual cash 
account in an amount in excess of the maximum amount insured by the 
Federal Deposit Insurance Corporation.
    (e)(1) The regulatory authority must determine the bond value of 
all collateral posted as assurance under this section. The bond value 
must reflect legal and liquidation fees, as well as value depreciation, 
marketability, and fluctuations that might affect the net cash 
available to the regulatory authority to complete reclamation.
    (2)(i) The regulatory authority may evaluate the bond value of 
collateral at any time.
    (ii) The regulatory authority must evaluate the bond value of 
collateral as part of the permit renewal process.
    (iii) The regulatory authority must increase or decrease the 
performance bond amount required if an evaluation conducted under 
paragraph (e)(2)(i) or (ii) of this section determines that the bond 
value of collateral has increased or decreased.
    (iv) In no case may the bond value of collateral exceed the market 
value of the collateral.
    (f) Persons who have an interest in collateral posted as a bond, 
and who desire notification of actions pursuant to the bond, must 
request such notification in writing to the regulatory authority at the 
time that the collateral is offered.


Sec.  800.23  What additional requirements apply to self-bonds?

    (a) Definitions. For the purposes of this section only:
    Current assets means cash or other assets or resources that are 
reasonably expected to be converted to cash or sold or consumed within 
one year or within the normal operating cycle of the business.
    Current liabilities means obligations that are reasonably expected 
to be paid or liquidated within one year or within the normal operating 
cycle of the business.
    Fixed assets means plants and equipment, but does not include land 
or coal in place.
    Liabilities means obligations to transfer assets or provide 
services to other entities in the future as a result of past 
transactions.
    Net worth means total assets minus total liabilities and is 
equivalent to owners' equity.
    Parent corporation means a corporation which owns or controls the 
applicant.
    Tangible net worth means net worth minus intangibles such as 
goodwill and rights to patents or royalties.
    (b) The regulatory authority may accept a self-bond from an 
applicant for a permit if all of the following conditions are met by 
the applicant or its parent corporation guarantor:
    (1) The applicant designates a suitable agent to receive service of 
process in the state where the proposed surface coal mining operation 
is to be conducted.
    (2) The applicant has been in continuous operation as a business 
entity for a period of not less than 5 years. Continuous operation 
means that business was conducted over the 5 years immediately 
preceding the date of application.
    (i) The regulatory authority may allow a joint venture or syndicate 
with less than 5 years of continuous operation to qualify under this 
requirement, if each member of the joint venture or syndicate has been 
in continuous operation for at least 5 years immediately preceding the 
date of application.
    (ii) When calculating the period of continuous operation, the 
regulatory authority may exclude past periods of interruption to the 
operation of the business entity that were beyond the applicant's 
control and that do not affect the applicant's likelihood of remaining 
in business during the proposed surface coal mining and reclamation 
operations.
    (3) The applicant submits financial information in sufficient 
detail to show that the applicant meets one of the following criteria:
    (i) The applicant has a current rating for its most recent bond 
issuance of ``A'' or higher as issued by either Moody's Investors 
Service or Standard and Poor's or an equivalent rating from any other 
nationally recognized statistical rating organization registered with 
the Securities and Exchange Commission.
    (ii) The applicant has a tangible net worth of at least $10 
million, a ratio of total liabilities to net worth of 2.5 times or 
less, and a ratio of current assets to current liabilities of 1.2 times 
or greater.

[[Page 93388]]

    (iii) The applicant's fixed assets in the United States total at 
least $20 million, and the applicant has a ratio of total liabilities 
to net worth of 2.5 times or less, and a ratio of current assets to 
current liabilities of 1.2 times or greater.
    (4) The applicant submits--
    (i) Financial statements for the most recently completed fiscal 
year accompanied by a report prepared by an independent certified 
public accountant in conformity with generally accepted accounting 
principles and containing the accountant's audit opinion or review 
opinion of the financial statements with no adverse opinion;
    (ii) Unaudited financial statements for completed quarters in the 
current fiscal year; and
    (iii) Additional unaudited information as requested by the 
regulatory authority.
    (c)(1) The regulatory authority may accept a written guarantee for 
an applicant's self-bond from a parent corporation guarantor, if the 
guarantor meets the conditions of paragraphs (b)(1) through (4) of this 
section as if it were the applicant. This written guarantee will be 
referred to as a ``corporate guarantee.'' The terms of the corporate 
guarantee must provide for the following:
    (i) If the applicant fails to complete the reclamation plan, the 
guarantor must do so or the guarantor will be liable under the 
indemnity agreement to provide funds to the regulatory authority 
sufficient to complete the reclamation plan, but not to exceed the bond 
amount.
    (ii) The corporate guarantee will remain in force unless the 
guarantor sends notice of cancellation by certified mail to the 
applicant and to the regulatory authority at least 90 days in advance 
of the cancellation date, and the regulatory authority accepts the 
cancellation.
    (iii) The cancellation may be accepted by the regulatory authority 
if the applicant obtains suitable replacement bond before the 
cancellation date or if the lands for which the self-bond, or portion 
thereof, was accepted have not been disturbed.
    (2) The regulatory authority may accept a written guarantee for an 
applicant's self-bond from any corporate guarantor, whenever the 
applicant meets the conditions of paragraphs (b)(1), (2), and (4) of 
this section, and the guarantor meets the conditions of paragraphs 
(b)(1) through (4) of this section. This written guarantee will be 
referred to as a ``non-parent corporate guarantee.'' The terms of this 
guarantee must provide for compliance with the conditions of paragraphs 
(c)(1)(i) through (iii) of this section. The regulatory authority may 
require the applicant to submit any information specified in paragraph 
(b)(3) of this section in order to determine the financial capabilities 
of the applicant.
    (d)(1) For the regulatory authority to accept an applicant's self-
bond, the total amount of the outstanding and proposed self-bonds of 
the applicant for surface coal mining and reclamation operations may 
not exceed 25 percent of the applicant's tangible net worth in the 
United States.
    (2) For the regulatory authority to accept a corporate guarantee, 
the total amount of the parent corporation guarantor's present and 
proposed self-bonds and guaranteed self-bonds for surface coal mining 
and reclamation operations may not exceed 25 percent of the guarantor's 
tangible net worth in the United States.
    (3) For the regulatory authority to accept a non-parent corporate 
guarantee, the total amount of the non-parent corporate guarantor's 
present and proposed self-bonds and guaranteed self-bonds may not 
exceed 25 percent of the guarantor's tangible net worth in the United 
States.
    (e) If the regulatory authority accepts an applicant's self-bond, 
the applicant must submit an indemnity agreement subject to the 
following requirements:
    (1) The indemnity agreement must be executed by all persons and 
parties who are to be bound by it, including the parent corporation 
guarantor. It must bind each party jointly and severally.
    (2) Corporations applying for a self-bond, and parent and non-
parent corporations guaranteeing an applicant's self-bond, must submit 
an indemnity agreement signed by two corporate officers who are 
authorized to bind their corporations. A copy of the authorization must 
be provided to the regulatory authority along with an affidavit 
certifying that the agreement is valid under all applicable federal and 
state laws. In addition, the guarantor must provide a copy of the 
corporate authorization demonstrating that the corporation may 
guarantee the self-bond and execute the indemnity agreement.
    (3) If the applicant is a partnership, joint venture or syndicate, 
the agreement must bind each partner or party who has a beneficial 
interest, directly or indirectly, in the applicant.
    (4) Pursuant to Sec.  800.50 of this part, the applicant and the 
parent or non-parent corporate guarantor will be required to complete 
the approved reclamation plan for the lands in default or to pay to the 
regulatory authority an amount necessary to complete the approved 
reclamation plan, not to exceed the bond amount. If permitted under 
state law, the indemnity agreement, when under forfeiture, will operate 
as a judgment against those parties liable under the indemnity 
agreement.
    (f) A regulatory authority may require self-bonded applicants and 
parent and non-parent corporate guarantors to submit an update of the 
information required under paragraphs (b)(3) and (4) of this section 
within 90 days after the close of each fiscal year following the 
issuance of the self-bond or corporate guarantee.
    (g) If at any time during the period when a self-bond is posted, 
the financial conditions of the applicant or the parent or non-parent 
corporate guarantor change so that the criteria of paragraphs (b)(3) 
and (d) of this section are not satisfied, the permittee must notify 
the regulatory authority immediately and post an alternate form of bond 
in the same amount as the self-bond within 90 days. Should the 
permittee fail to post an adequate substitute bond, the provisions of 
Sec.  800.30(b) of this part will apply.


Sec.  800.30  When may I replace a performance bond or financial 
assurance and when must I do so?

    (a) Replacement upon request of permittee. (1) The regulatory 
authority may allow you, the permittee, to replace existing performance 
bonds and financial assurances with other performance bonds and 
financial assurances that provide equivalent coverage.
    (2) The regulatory authority may not release any existing 
performance bond or financial assurance until you have submitted, and 
the regulatory authority has approved, an acceptable replacement.
    (b) Replacement by order of the regulatory authority. (1) Upon the 
incapacity of a bank, surety, or other responsible financial entity by 
reason of bankruptcy, insolvency, or suspension or revocation of a 
charter or license, you will be deemed to be without bond coverage and 
you must promptly notify the regulatory authority.
    (2) Upon receipt of notification from a bank, surety, or other 
responsible financial entity under Sec.  800.16(e) of this part or from 
you under paragraph (b)(1) of this section, the regulatory authority 
must issue an order requiring that you submit replacement bond or 
financial assurance coverage within a reasonable time, not to exceed 90 
days.
    (3) If you do not post adequate bond or financial assurance by the 
end of the time allowed under paragraph (b)(2) of this section, the 
regulatory authority must issue a notice of violation

[[Page 93389]]

requiring that you cease surface coal mining operations immediately. 
The notice of violation also must require that you either--
    (i) Post adequate bond or financial assurance coverage before you 
may resume surface coal mining operations; or
    (ii) Reclaim the site in accordance with the provisions of Sec.  
816.132 or Sec.  817.132 of this chapter.


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

    (a) When may I file an application for bond release? You, the 
permittee, may file an application with the regulatory authority for 
the release of all or part of a performance bond only at times or 
during seasons authorized by the regulatory authority. The times or 
seasons appropriate for the evaluation of certain types of reclamation 
will be established in either the regulatory program or your permit.
    (b) What must I include in my application for bond release? Each 
application for bond release must include--
    (1) An application on a form prescribed by the regulatory 
authority.
    (2) All other information required by the regulatory authority, 
which must include a detailed description of the results that you have 
achieved under the approved reclamation plan and an analysis of the 
results of the monitoring conducted under Sec. Sec.  816.35 through 
816.37 or Sec. Sec.  817.35 through 817.37 of this chapter.
    (3) A certified copy of an advertisement that you have placed at 
least once a week for four successive weeks in a newspaper of general 
circulation in the locality of the surface coal mining and reclamation 
operation. You must submit the copy within 30 days after you file the 
application form under paragraph (b)(1) of this section. The 
advertisement must contain--
    (i) Your name.
    (ii) The permit number and approval date.
    (iii) The number of acres and the precise location of the land for 
which you are requesting bond release.
    (iv) The amount of the performance bond filed and the portion for 
which you seek release.
    (v) The type and dates of reclamation work performed.
    (vi) A brief description of the results that you have achieved 
under the approved reclamation plan.
    (vii) The name and address of the regulatory authority to which 
written comments, objections, or requests for public hearings and 
informal conferences on the bond release application may be submitted 
pursuant to Sec.  800.44 of this section and the location at which the 
application may be reviewed.
    (4) Copies of letters that you have sent to adjoining property 
owners, local governmental bodies, planning agencies, sewage and water 
treatment authorities, and water companies in the locality of the 
surface coal mining and reclamation operation, notifying them of your 
intention to seek release of the bond.
    (5) A notarized statement certifying that all applicable 
reclamation activities have been accomplished in accordance with the 
requirements of the regulatory program and the approved reclamation 
plan. You must submit a separate certification for each application and 
each phase of bond release.


Sec.  800.41  How will the regulatory authority process my application 
for bond release?

    (a)(1) Upon receipt of a complete application for bond release, the 
regulatory authority will, within 30 days, or as soon thereafter as 
weather conditions permit, conduct an inspection of the site and an 
evaluation of the reclamation work performed and the reclamation work 
remaining. A complete application for bond release is one that includes 
all items required under Sec.  800.40 of this part.
    (2) The evaluation will consider, among other factors, the degree 
of difficulty to complete any remaining reclamation, whether pollution 
of surface and subsurface water is occurring, the probability of future 
occurrence of such pollution, and the estimated cost of abating such 
pollution.
    (b)(1) The regulatory authority will notify the surface owner, 
agent, or lessee before conducting the inspection and will offer that 
person an opportunity to participate with the regulatory authority in 
making the inspection.
    (2) The regulatory authority may arrange with you to allow access 
to the permit area, upon request by any person with an interest in bond 
release, for the purpose of gathering information relevant to the 
proceeding.


Sec.  800.42  What are the criteria for bond release?

    (a) General requirements. (1) Except as provided in paragraphs 
(a)(2) through (5) of this section, the regulatory authority may 
release all or part of the performance bond for the permit area or an 
increment thereof if the regulatory authority is satisfied that you 
have accomplished the required reclamation for the permit area or 
increment in accordance with paragraphs (b) through (d) of this 
section.
    (2)(i) The regulatory authority must conduct a scientifically 
defensible trend analysis of the monitoring data submitted under 
Sec. Sec.  816.35 through 816.37 or Sec. Sec.  817.35 through 817.37 of 
this chapter before releasing any bond amount.
    (ii) The regulatory authority may not approve a bond release 
application if the analysis conducted under paragraph (a)(2)(i) of this 
section and other relevant information indicate that the operation is 
causing material damage to the hydrologic balance outside the permit 
area or is likely to do so in the future.
    (3) If you are responsible for a discharge requiring long-term 
treatment, regardless of whether the discharge emerges either on the 
permit area or at a point that is hydrologically connected to the 
permit area, you must post a separate financial assurance, collateral 
bond, or surety bond under Sec.  800.18 of this part to guarantee 
treatment of the discharge before any portion of the existing 
performance bond for the permit area may be released, unless the type 
and amount of bond remaining after the release would be adequate to 
meet the requirements of Sec.  800.18 of this part as well as any 
remaining land reclamation obligations.
    (4) If the permit area or increment includes mountaintop removal 
mining operations under Sec.  785.14 of this chapter or a variance from 
restoration of the approximate original contour under Sec.  785.16 of 
this chapter, the amount of bond that may be released is subject to the 
limitation specified in Sec.  785.14(c)(2) of this chapter for 
mountaintop removal mining operations or the limitation specified in 
Sec.  785.16(b)(2) of this chapter for a variance from restoration of 
the approximate original contour.
    (5) The bond amount described in Sec.  780.24(d)(2) or Sec.  
784.24(d)(2) of this chapter may not be released either until the 
structure is in use as part of the postmining land use or until the 
structure is removed and the site upon which it was located is 
reclaimed in accordance with part 816 or part 817 of this chapter.
    (6) The regulatory authority must consider the results of the 
evaluation conducted under Sec.  800.41(a)(2) of this part when 
determining the amount of performance bond to release.
    (b) Phase I reclamation. (1) The regulatory authority may release a 
maximum of 60 percent of the performance bond for a bonded area after 
you complete Phase I reclamation for that area in accordance with the 
approved reclamation plan. Phase I reclamation consists of backfilling, 
grading, and establishment of drainage control. It includes 
construction of the postmining drainage pattern and stream-

[[Page 93390]]

channel configuration required by Sec. Sec.  816.56(b), 816.57(c)(1), 
817.56(b), and 817.57(c)(1) of this chapter and restoration of the form 
of perennial and intermittent streams under Sec. Sec.  816.57(e) and 
817.57(e) of this chapter. Soil replacement is optional for this phase.
    (2) The amount of performance bond that the regulatory authority 
retains after Phase I release must be adequate to ensure that the 
regulatory authority will have sufficient funds for a third party to 
complete the remaining portion of the reclamation plan, including 
restoration of the hydrologic function and ecological function of 
perennial and intermittent streams under Sec.  816.57(f) and (g) or 
Sec.  817.57(f) and (g) of this chapter and completion of any fish and 
wildlife enhancement measures required in the permit in accordance with 
Sec.  780.16 or Sec.  784.16 of this chapter, in the event of 
forfeiture.
    (c) Phase II reclamation. (1) The regulatory authority may release 
an additional amount of performance bond after you complete Phase II 
reclamation, which consists of--
    (i) Soil replacement and redistribution of organic materials (if 
not accomplished as part of Phase I reclamation);
    (ii) Restoration of the hydrologic function of perennial and 
intermittent streams under Sec.  816.57(f) or Sec.  817.57(f) of this 
chapter; and
    (iii) Successfully establishing revegetation on the area in 
accordance with the approved reclamation plan, including any streamside 
vegetative corridors required by Sec. Sec.  816.56(c), 816.57(d), 
817.56(c), and 817.57(d) of this chapter. The regulatory authority must 
establish standards defining successful establishment of vegetation for 
Phase II reclamation.
    (2) The amount of performance bond that the regulatory authority 
retains after Phase II release must be sufficient to cover the cost of 
having a third party reestablish revegetation for the revegetation 
responsibility period under Sec.  816.115 or Sec.  817.115 of this 
chapter. In addition, it must be adequate to ensure that the regulatory 
authority will have sufficient funds for a third party to complete the 
remaining portion of the reclamation plan, including restoration of the 
ecological function of perennial and intermittent streams under Sec.  
816.57(g) or Sec.  817.57(g) of this chapter and completion of any fish 
and wildlife enhancement measures required in the permit in accordance 
with Sec.  780.16 or Sec.  784.16 of this chapter, in the event of 
forfeiture.
    (3) The regulatory authority may not release any part of the 
performance bond under paragraph (c)(1) of this section if the lands to 
which the release would apply are contributing suspended solids to 
streamflow or runoff outside the permit area in excess of the 
requirements set by subchapter K of this chapter.
    (4) The regulatory authority may not release any part of the 
performance bond under paragraph (c)(1) of this section until soil 
productivity for all prime farmland historically used for cropland on 
the area to which the release would apply has returned to levels of 
yield equivalent to yields from nonmined land of the same soil type in 
the surrounding area under equivalent management practices as 
determined from the soil survey performed under part 823 of this 
chapter.
    (5) When the regulatory authority has approved retention of a silt 
dam as a permanent impoundment under Sec.  816.49(b) or Sec.  817.49(b) 
of this chapter, the regulatory authority may approve Phase II bond 
release for the area of the impoundment if the requirements of Sec.  
816.55 or Sec.  817.55 of this chapter have been met and provisions for 
sound future maintenance by the operator or the landowner have been 
made with the regulatory authority.
    (d) Phase III reclamation. (1) The regulatory authority must 
release the remaining portion of the performance bond upon the 
completion of Phase III reclamation, which consists of successful 
completion of all surface coal mining and reclamation activities and 
expiration of the revegetation responsibility period under Sec.  
816.115 or Sec.  817.115 of this chapter.
    (2) The regulatory authority may not fully release any performance 
bond under provisions of this section until all applicable reclamation 
requirements of the regulatory program and the permit are fully met. 
Among other things, those requirements include restoration of the 
ecological function of perennial and intermittent streams under Sec.  
816.57(g) or Sec.  817.57(g) of this chapter and completion of any fish 
and wildlife enhancement measures required in the permit in accordance 
with Sec.  780.16 or Sec.  784.16 of this chapter.


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

    (a) The regulatory authority will provide written notification of 
its decision on your bond release application to--
    (1) You;
    (2) The surety (if applicable);
    (3) All other persons with an interest in bond collateral who have 
requested notification under Sec.  800.21(f) of this part;
    (4) Any person who filed objections in writing; and
    (5) Objectors who were a party to the hearing proceedings, if any.
    (b) The regulatory authority will provide notification under 
paragraph (a) of this section--
    (1) Within 60 days after you file the application, if there is no 
public hearing under Sec.  800.44 of this part, or
    (2) Within 30 days after a public hearing has been held under Sec.  
800.44 of this part.
    (c) If the regulatory authority disapproves your application for 
release of the bond or portion thereof, the regulatory authority must 
notify you, the surety, and any person with an interest in collateral 
as provided in Sec.  800.21(f) of this part, in writing, stating the 
reasons for disapproval and recommending corrective actions necessary 
to secure the release and allowing an opportunity for a public hearing.
    (d) When any application for total or partial bond release is filed 
with the regulatory authority, the regulatory authority must notify the 
municipality in which the surface coal mining operation is located by 
certified mail at least 30 days prior to the release of all or a 
portion of the bond.


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

    (a)(1) Any person with a valid legal interest that might be 
adversely affected by release of the bond, or the responsible officer 
or head of any federal, state, tribal, or local governmental agency 
with jurisdiction by law or special expertise with respect to any 
environmental, social, or economic impact involved in the operation or 
which is authorized to develop and enforce environmental standards with 
respect to those operations, has the right to file written objections 
to the proposed bond release with the regulatory authority within 30 
days after the last publication of the notice required by Sec.  
800.40(b)(2) of this part.
    (2) If written objections are filed and a hearing is requested, the 
regulatory authority must inform all interested parties of the time and 
place of the hearing, and hold a public hearing within 30 days after 
receipt of the request for the hearing. The regulatory authority must 
advertise the date, time, and location of the public hearing in a 
newspaper of general circulation in the locality for two consecutive 
weeks.
    (3) The public hearing must be held in the locality of the surface 
coal mining

[[Page 93391]]

operation for which bond release is sought, at the location of the 
regulatory authority office, or at the state capital, at the option of 
the objector.
    (b)(1) For the purpose of the hearing under paragraph (a) of this 
section, the regulatory authority has the authority to administer 
oaths, subpoena witnesses or written or printed material, compel the 
attendance of witnesses or the production of materials, and take 
evidence including, but not limited to, inspection of the land affected 
and other surface coal mining operations carried on by the applicant in 
the general vicinity.
    (2) A verbatim record of each public hearing must be made, and a 
transcript must be made available on the motion of any party or by 
order of the regulatory authority.
    (c) Without prejudice to the right of an objector or the applicant 
for bond release, the regulatory authority may hold an informal 
conference as provided in section 513(b) of the Act, 30 U.S.C. 1263(b), 
to resolve written objections. The regulatory authority must make a 
record of the informal conference unless waived by all parties, which 
must be accessible to all parties. The regulatory authority also must 
furnish all parties to the informal conference with a written finding 
based on the informal conference, and the reasons for the finding.


Sec.  800.50  When and how will a bond be forfeited?

    (a) If a permittee or operator refuses or is unable to conduct 
reclamation of an unabated violation, if the terms of the permit are 
not met, or if the permittee or operator defaults on the conditions 
under which the bond was accepted, the regulatory authority must take 
the following action to forfeit all or part of a bond or bonds for any 
permit area or an increment of a permit area:
    (1)(i) Send written notification by certified mail, return receipt 
requested, to the permittee and the surety on the bond, if any, 
informing them of the determination to forfeit all or part of the bond, 
including the reasons for the forfeiture and the amount to be 
forfeited.
    (ii) If the amount to be forfeited under paragraph (a)(1)(i) of 
this section is less than the total amount of bond posted, the amount 
forfeited must be no less than the estimated total cost of achieving 
the reclamation plan requirements. For a discharge that requires long-
term treatment, the regulatory authority must calculate the estimated 
total cost of achieving the reclamation plan requirements for that 
discharge in a manner consistent with Sec.  800.18(c) of this part.
    (2) Advise the permittee and surety, if applicable, of the 
conditions under which forfeiture may be avoided. Those conditions may 
include, but are not limited to--
    (i) Agreement by the permittee or another party to perform 
reclamation operations in accordance with a compliance schedule that 
meets the conditions of the permit, the reclamation plan, and the 
regulatory program and a demonstration that the party has the ability 
to satisfy the conditions; or
    (ii) The regulatory authority may allow a surety to complete the 
reclamation plan, or the portion of the reclamation plan applicable to 
the bonded phase or increment if the surety can demonstrate an ability 
to complete the reclamation in accordance with the approved reclamation 
plan. Except where the reclamation work performed meets the criteria 
for partial bond release under Sec.  800.42 of this part, no surety 
liability may be released until successful completion of all 
reclamation under the terms of the permit, including applicable 
liability periods of Sec.  800.13 of this part.
    (b) In the event forfeiture of the bond is required by this 
section, the regulatory authority shall--
    (1) Proceed to collect the forfeited amount as provided by 
applicable laws for the collection of defaulted bonds or other debts if 
actions to avoid forfeiture have not been taken, or if rights of 
appeal, if any, have not been exercised within a time established by 
the regulatory authority, or if such appeal, if taken, is unsuccessful.
    (2) Use funds collected from bond forfeiture to complete the 
reclamation plan, or the portion thereof covered by the bond, on the 
permit area or increment to which the bond applies.
    (c) Upon default, the regulatory authority may cause the forfeiture 
of any and all bonds deposited to complete reclamation for which the 
bonds were posted. Unless specifically limited, as provided in Sec.  
800.11(c) of this part, bond liability will extend to the entire permit 
area under conditions of forfeiture.
    (d)(1) In the event the estimated amount forfeited is insufficient 
to pay for the full cost of reclamation, the permittee or operator is 
liable for remaining costs. The regulatory authority may complete, or 
authorize completion of, reclamation of the bonded area and may recover 
from the permittee or operator all costs of reclamation in excess of 
the amount forfeited.
    (2) In the event the amount of performance bond forfeited is more 
than the amount necessary to complete reclamation, the regulatory 
authority must return the unused funds to the party from whom they were 
collected.


Sec.  800.60  What liability insurance must I carry?

    (a) The regulatory authority must require the applicant to submit 
as part of its permit application a certificate issued by an insurance 
company authorized to do business in the United States certifying that 
the applicant has a public liability insurance policy in force for the 
surface coal mining and reclamation operations for which the permit is 
sought. The policy must provide for personal-injury and property-damage 
protection in an amount adequate to compensate any persons injured or 
property damaged as a result of the surface coal mining and reclamation 
operations, including the use of explosives, and who are entitled to 
compensation under the applicable provisions of state law. Minimum 
insurance coverage for bodily injury and property damage is $300,000 
for each occurrence and $500,000 aggregate.
    (b) The policy must be maintained in full force during the life of 
the permit or any renewal thereof and the liability period necessary to 
complete all reclamation operations under this chapter.
    (c) The policy must include a rider requiring that the insurer 
notify the regulatory authority whenever substantive changes are made 
in the policy, including any termination or failure to renew.
    (d) The regulatory authority may accept from the applicant, in lieu 
of a certificate for a public liability insurance policy, satisfactory 
evidence from the applicant that it satisfies applicable state self-
insurance requirements approved as part of the regulatory program and 
the requirements of this section.


Sec.  800.70  What special bonding provisions apply to anthracite 
operations in Pennsylvania?

    (a) All provisions of this subchapter apply to bonding and insuring 
anthracite surface coal mining and reclamation operations in 
Pennsylvania except that--
    (1) The regulatory authority must determine specified bond limits 
in accordance with applicable provisions of Pennsylvania statutes, 
rules and regulations adopted thereunder, and implementing policies of 
the Pennsylvania regulatory authority.
    (2) The period of liability for responsibility under each bond must 
be

[[Page 93392]]

established for those operations in accordance with applicable laws of 
the Commonwealth of Pennsylvania, rules and regulations adopted 
thereunder, and implementing policies of the Pennsylvania regulatory 
authority.
    (b) Upon amendment of the Pennsylvania permanent regulatory program 
with respect to specified bond limits and the period of revegetation 
responsibility for anthracite surface coal mining and reclamation 
operations, any person engaging in or seeking to engage in those 
operations must comply with additional regulations the Secretary may 
issue as are necessary to meet the purposes of the Act.

0
34. Lift the suspension of Sec.  816.101, and revise part 816 to read 
as follows:

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

Sec.
816.1 What does this part do?
816.2 What is the objective of this part?
816.10 Information collection.
816.11 What signs and markers must I post?
816.13 What special requirements apply to drilled holes, wells, and 
exposed underground openings?
816.14 [Reserved]
816.15 [Reserved]
816.22 How must I handle topsoil, subsoil, and other plant growth 
media?
816.34 How must I protect the hydrologic-balance?
816.35 How must I monitor groundwater?
816.36 How must I monitor surface water?
816.37 How must I monitor the biological condition of streams?
816.38 How must I handle acid-forming and toxic-forming materials?
816.39 What must I do with exploratory or monitoring wells when I no 
longer need them?
816.40 What responsibility do I have to replace water supplies?
816.41 Under what conditions may I discharge water and other 
materials into an underground mine?
816.42 What Clean Water Act requirements apply to discharges from my 
operation?
816.43 How must I construct and maintain diversions and other 
channels to convey water?
816.45 What sediment control measures must I implement?
816.46 What requirements apply to siltation structures?
816.47 What requirements apply to discharge structures for 
impoundments?
816.49 What requirements apply to impoundments?
816.55 How must I rehabilitate sedimentation ponds, diversions, 
impoundments, and treatment facilities after I no longer need them?
816.56 What additional performance standards apply to mining 
activities conducted in or through an ephemeral stream?
816.57 What additional performance standards apply to mining 
activities conducted in or through a perennial or intermittent 
stream or within 100 feet of a perennial or intermittent stream?
816.59 How must I maximize coal recovery?
816.61 Use of explosives: General requirements.
816.62 Use of explosives: Preblasting survey.
816.64 Use of explosives: Blasting schedule.
816.66 Use of explosives: Blasting signs, warnings, and access 
control.
816.67 Use of explosives: Control of adverse effects.
816.68 Use of explosives: Records of blasting operations.
816.71 How must I dispose of excess spoil?
816.72 [Reserved]
816.73 [Reserved]
816.74 What special requirements apply to the disposal of excess 
spoil on a preexisting bench?
816.79 What measures must I take to protect underground mines in the 
vicinity of my surface mine?
816.81 How must I dispose of coal mine waste?
816.83 What special requirements apply to coal mine waste refuse 
piles?
816.84 What special requirements apply to coal mine waste impounding 
structures?
816.87 What special requirements apply to burning and burned coal 
mine waste?
816.89 How must I dispose of noncoal mine wastes?
816.95 How must I protect surface areas from wind and water erosion?
816.97 How must I protect and enhance fish, wildlife, and related 
environmental values?
816.99 What measures must I take to prevent and remediate 
landslides?
816.100 What are the standards for conducting reclamation 
contemporaneously with mining?
816.101 [Reserved]
816.102 How must I backfill the mined area and grade and configure 
the land surface?
816.104 What special provisions for backfilling, grading, and 
surface configuration apply to sites with thin overburden?
816.105 What special provisions for backfilling, grading, and 
surface configuration apply to sites with thick overburden?
816.106 What special provisions for backfilling, grading, and 
surface configuration apply to previously mined areas with a 
preexisting highwall?
816.107 What special provisions for backfilling, grading, and 
surface configuration apply to operations on steep slopes?
816.111 How must I revegetate areas disturbed by mining activities?
816.113 [Reserved]
816.114 [Reserved]
816.115 How long am I responsible for revegetation after planting?
816.116 What requirements apply to standards for determining 
revegetation success?
816.131 What actions must I take when I temporarily cease mining 
operations?
816.132 What actions must I take when I permanently cease mining 
operations?
816.133 What provisions concerning postmining land use apply to my 
operation?
816.150 What are the general requirements for haul and access roads?
816.151 What additional requirements apply to primary roads?
816.180 To what extent must I protect utility installations?
816.181 What requirements apply to support facilities?
816.200 [Reserved]

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


Sec.  816.1  What does this part do?

    This part sets forth the minimum environmental protection 
performance standards for surface mining activities under the Act.


Sec.  816.2  What is the objective of this part?

    This part is intended to ensure that all surface mining activities 
are conducted in an environmentally sound manner in accordance with the 
Act.


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 it control 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. 
Send comments regarding burden estimates or any other aspect of this 
collection of information, including suggestions for reducing the 
burden, to the Office of Surface Mining Reclamation and Enforcement, 
Information Collection Clearance Officer, Room 203-SIB, 1951 
Constitution Avenue NW., Washington, DC 20240.


Sec.  816.11  What signs and markers must I post?

    (a) General specifications. Signs and markers required under this 
part must--
    (1) Be posted and maintained by the person who conducts the surface 
mining activities;

[[Page 93393]]

    (2) Be of a uniform design throughout the operation;
    (3) Be easily seen and read;
    (4) Be made of durable material; and
    (5) Conform to local ordinances and codes.
    (b) Duration of maintenance. You must maintain signs and markers 
during the conduct of all activities to which they pertain.
    (c) Mine and permit identification signs. (1) You must display 
identification signs at each point of access to the permit area from 
public roads.
    (2) The signs must show the name, business address, and telephone 
number of the person who conducts the surface mining activities and the 
identification number of the current SMCRA permit authorizing surface 
mining activities.
    (3) You must retain and maintain the signs until the release of all 
bonds for the permit area.
    (d) Perimeter markers. You must clearly mark the perimeter of the 
permit area before beginning surface mining activities.
    (e) Stream buffer zone markers. You must clearly mark 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 to avoid disturbance by 
surface mining activities.
    (f) Topsoil markers. You must clearly mark stockpiles of topsoil, 
subsoil, or other plant growth media segregated and stored as required 
in the permit in accordance with Sec.  816.22 of this part.


Sec.  816.13  What special requirements apply to drilled holes, wells, 
and exposed underground openings?

    (a) Except as provided in paragraph (f) of this section, you must 
case, line, otherwise manage each exploration hole, drilled hole, 
borehole, shaft, well, or other exposed underground opening in a manner 
approved by the regulatory authority to--
    (1) Prevent acid or other toxic drainage from entering groundwater 
and surface water.
    (2) Minimize disturbance to the prevailing hydrologic balance.
    (3) Ensure the safety of people, livestock, fish and wildlife, and 
machinery in the permit area and the adjacent area.
    (b) If the approved permit identifies an exploration hole, drilled 
hole, borehole, well, or other exposed underground opening for use to 
monitor groundwater or to return coal processing waste or water to 
underground workings, you must temporarily seal the hole or opening 
before use and protect it during use by installing barricades, fences, 
or other protective devices approved by the regulatory authority. You 
must periodically inspect these devices and maintain them in good 
operating condition.
    (c) You may retain and transfer a drilled hole or groundwater 
monitoring well for use as a water well under the conditions 
established in Sec.  816.39 of this part.
    (d) Except as provided in paragraph (c) of this section, you must 
permanently close each exploration hole, drilled hole, borehole, well, 
or underground opening that mining activities uncover or expose within 
the permit area, unless the regulatory authority--
    (1) Approves use of the hole, well, or opening for water monitoring 
purposes; or
    (2) Authorizes other management of the hole or well.
    (e)(1) Except as provided in paragraph (c) of this section, you 
must cap, seal, backfill, or otherwise properly manage each shaft, 
drift, adit, tunnel, exploratory hole, entryway or other opening to the 
surface from underground when no longer needed for monitoring or any 
other use that the regulatory authority approves after finding that the 
use will not adversely affect the environment or public health and 
safety.
    (2) Permanent closure measures taken under paragraph (e)(1) of this 
section must be--
    (i) Consistent with Sec.  75.1771 of this title;
    (ii) Designed to prevent access to the mine workings by people, 
livestock, fish and wildlife, and machinery; and
    (iii) Designed to keep acid or toxic mine drainage from entering 
groundwater or surface water.
    (f) The requirements of this section do not apply to holes drilled 
and used for blasting for surface mining purposes.


Sec.  816.14  [Reserved]


Sec.  816.15  [Reserved]


Sec.  816.22  How must I handle topsoil, subsoil, and other plant 
growth media?

    (a) Removal and salvage. (1)(i) You, the permittee, must remove and 
salvage all topsoil and other soil materials identified for salvage and 
use as postmining plant growth media in the soil handling plan approved 
in the permit under Sec.  780.12(e) of this chapter.
    (ii) The soil handling plan approved in the permit under Sec.  
780.12(e) of this chapter will specify which soil horizons and 
underlying strata, or portions thereof, you must separately remove and 
salvage. The plan also will specify whether some or all of those soil 
horizons and soil substitute materials may or must be blended to 
achieve an improved plant growth medium.
    (iii) Except as provided in the soil handling plan approved in the 
permit under Sec.  780.12(e) of this chapter, you must complete removal 
and salvage of topsoil, subsoil, and organic matter in advance of any 
mining-related surface disturbance other than the minor disturbances 
identified in paragraph (a)(2) of this section.
    (2) Unless otherwise specified by the regulatory authority, you 
need not remove and salvage topsoil and other soil materials for minor 
disturbances that--
    (i) Occur at the site of small structures, such as power poles, 
signs, monitoring wells, or fence lines; or
    (ii) Will not destroy the existing vegetation and will not cause 
erosion.
    (b) Handling and storage. (1) You must segregate and separately 
handle the materials removed under paragraph (a) of this section to the 
extent required in the soil handling plan approved in the permit 
pursuant to Sec.  780.12(e). You must redistribute those materials 
promptly on regraded areas or stockpile them when prompt redistribution 
is impractical.
    (2) Stockpiled materials must--
    (i) Be selectively placed on a stable site within the permit area;
    (ii) Be protected from contaminants and unnecessary compaction that 
would interfere with revegetation;
    (iii) Be protected from wind and water erosion through prompt 
establishment and maintenance of an effective, quick-growing, non-
invasive vegetative cover or through other measures approved by the 
regulatory authority; and
    (iv) Not be moved until required for redistribution unless approved 
by the regulatory authority.
    (3) When stockpiling of organic matter and soil materials removed 
under paragraphs (a) and (f) of this section would be detrimental to 
the quality or quantity of those materials, you may temporarily 
redistribute those soil materials on an approved site within the permit 
area to enhance the current use of that site until the materials are 
needed for later reclamation, provided that--
    (i) Temporary redistribution will not permanently diminish the 
capability of the topsoil of the host site; and
    (ii) The redistributed material will be preserved in a condition 
more suitable for redistribution than if it were stockpiled.
    (c) Soil substitutes and supplements. When the soil handling plan 
approved in the permit in accordance with

[[Page 93394]]

Sec.  780.12(e) of this chapter provides for the use of substitutes for 
or supplements to the existing topsoil or subsoil, you must salvage, 
store, and redistribute the overburden materials selected and approved 
for that purpose in a manner consistent with paragraphs (a), (b), and 
(e) of this section.
    (d) Site preparation. If necessary to reduce potential slippage of 
the redistributed material or to promote root penetration, you must 
rip, chisel-plow, deep-till, or otherwise mechanically treat backfilled 
and graded areas either before or after redistribution of soil 
materials, whichever time is agronomically appropriate.
    (e) Redistribution. (1) You must redistribute the materials 
removed, salvaged, and, if necessary, stored under paragraphs (a) 
through (c) of this section in a manner that--
    (i) Complies with the soil handling plan developed under Sec.  
780.12(e) of this chapter and approved as part of the permit.
    (ii) Is consistent with the approved postmining land use, the final 
surface configuration, and surface water drainage systems.
    (iii) Minimizes compaction of the topsoil and soil materials in the 
root zone to the extent possible and alleviates any excess compaction 
that may occur. You must limit your use of measures that result in 
increased compaction to those situations in which added compaction is 
necessary to ensure stability.
    (iv) Protects the materials from wind and water erosion before and 
after seeding and planting to the extent necessary to ensure 
establishment of a successful vegetative cover and to avoid causing or 
contributing to a violation of applicable state or tribal water quality 
standards or effluent limitations, including, but not limited to, water 
quality standards established under the authority of section 303(c) of 
the Clean Water Act, 33 U.S.C. 1313(c), and effluent limitations 
established in any National Pollutant Discharge Elimination System 
permit issued for the operation under section 402 of the Clean Water 
Act, 33 U.S.C. 1342, or its state or tribal counterpart.
    (v) Achieves an approximately uniform, stable thickness across the 
regraded area. The thickness may vary when consistent with the approved 
postmining land use, the final surface configuration, surface water 
drainage systems, and the requirement in Sec.  816.133 of this part for 
restoration of all disturbed areas to conditions that are capable of 
supporting the uses they were capable of supporting before any mining 
or higher or better uses approved under Sec.  780.24(b) of this 
chapter. The thickness also may vary when variations are necessary or 
desirable to achieve specific revegetation goals and ecological 
diversity, as set forth in the revegetation plan developed under Sec.  
780.12(g) of this chapter and approved as part of the permit.
    (2) You must use a statistically valid sampling technique to 
document that soil materials have been redistributed in the locations 
and depths required by the soil handling plan developed under Sec.  
780.12(e) of this chapter and approved as part of the permit.
    (3) The regulatory authority may choose not to require the 
redistribution of topsoil on the embankments of permanent impoundments 
or on the embankments of roads to be retained as part of the postmining 
land use if it determines that--
    (i) Placement of topsoil on those embankments is inconsistent with 
the requirement to use the best technology currently available to 
prevent sedimentation, and
    (ii) The embankments will be otherwise stabilized.
    (f) Organic matter. (1)(i) You must salvage duff, other organic 
litter, and vegetative materials such as tree tops and branches, small 
logs, and root balls. When practicable and consistent with the approved 
postmining land use, you may salvage organic matter and topsoil in a 
single operation that blends those materials.
    (ii) Paragraph (f)(1)(i) of this section does not apply to organic 
matter from areas identified under Sec.  779.19(b) of this chapter as 
containing significant populations of invasive or noxious non-native 
species. You must bury organic matter from those areas in the backfill 
at a sufficient depth to prevent regeneration or proliferation of 
undesirable species.
    (2)(i) Except as otherwise provided in paragraphs (f)(2)(ii) and 
(iii) and (3) of this section, you must redistribute the organic matter 
salvaged under paragraph (f)(1) of this section across the regraded 
surface or incorporate it into the soil to control erosion, promote 
growth of vegetation, serve as a source of native plant seeds and soil 
inoculants to speed restoration of the soil's ecological community, and 
increase the moisture retention capability of the soil.
    (ii) You may use vegetative debris to construct stream improvement 
or fish and wildlife habitat enhancement features consistent with the 
approved postmining land use.
    (iii) You may adjust the timing and pattern of redistribution of 
large woody debris to accommodate the use of mechanized tree-planting 
equipment on sites with a forestry postmining land use.
    (3)(i) The redistribution requirements of paragraph (f)(2)(i) of 
this section do not apply to those portions of the permit area--
    (A) Upon which row crops will be planted as part of the postmining 
land use before final bond release under Sec. Sec.  800.40 through 
800.43 of this chapter;
    (B) That will be intensively managed for hay production as part of 
the postmining land use before final bond release under Sec. Sec.  
800.40 through 800.43 of this chapter; or
    (C) Upon which structures, roads, other impervious surfaces, or 
water impoundments have been or will be constructed as part of the 
postmining land use before final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter.
    (ii) When the circumstances described in paragraph (f)(3)(i) of 
this section apply, you must make reasonable efforts to redistribute 
the salvaged organic matter on other portions of the permit area or use 
woody debris to construct stream improvement or fish and wildlife 
habitat enhancement features consistent with the approved postmining 
land use. If you demonstrate, and the regulatory authority finds, that 
it is not reasonably possible to use all available organic matter for 
these purposes, you may bury it in the backfill.
    (4)(i) You may not burn organic matter.
    (ii) You may bury organic matter in the backfill only as provided 
in paragraphs (f)(1)(ii) and (3)(ii) of this section.


Sec.  816.34  How must I protect the hydrologic balance?

    (a) You, the permittee, must conduct all surface mining and 
reclamation activities in a manner that will--
    (1) Minimize disturbance of the hydrologic balance within the 
permit and adjacent areas.
    (2) Prevent material damage to the hydrologic balance outside the 
permit area.
    (3) Protect streams in accordance with Sec. Sec.  780.28 and 816.57 
of this chapter.
    (4) Assure the protection or replacement of water supplies to the 
extent required by Sec.  816.40 of this part.
    (5) Protect existing water rights under state law.
    (6) Support approved postmining land uses in accordance with the 
terms and conditions of the approved permit and the performance 
standards of this part.
    (7) Comply with the hydrologic reclamation plan as submitted under

[[Page 93395]]

Sec.  780.22 of this chapter and approved in the permit.
    (8) Protect groundwater quality by using best management practices 
to handle earth materials and runoff in a manner that avoids the 
formation of acid or toxic mine drainage and by managing excavations 
and other disturbances to prevent or control groundwater degradation. 
The regulatory authority will determine the meaning of the term ``best 
management practices'' on a site-specific basis. At a minimum, the term 
includes equipment, devices, systems, methods, and techniques that the 
Director determines to be best management practices.
    (9) Protect groundwater quantity by handling earth materials and 
runoff in a manner that will restore the approximate premining recharge 
capacity of the reclaimed area as a whole, excluding coal mine waste 
disposal areas and excess spoil fills, so as to allow the movement of 
water into the groundwater system.
    (10) Protect surface-water quality by using best management 
practices, as described in paragraph (a)(8) of this section, to handle 
earth materials, groundwater discharges, and runoff in a manner that--
    (i) Prevents postmining discharges of acid or toxic mine drainage.
    (ii) Prevents additional contribution of suspended solids to 
streamflow or runoff outside the permit area to the extent possible, 
using the best technology currently available.
    (iii) Otherwise prevents water pollution.
    (11) Protect surface-water quality and flow rates by handling earth 
materials and runoff in accordance with the steps outlined in the 
hydrologic reclamation plan and the surface-water runoff control plan 
approved in the permit in accordance with Sec. Sec.  780.22 and 780.29 
of this chapter, respectively.
    (b)(1) To the maximum extent practicable, you must use mining and 
reclamation practices that minimize water pollution, changes in flow, 
and adverse impacts on stream biota rather than relying upon water 
treatment to minimize those impacts.
    (2) You must install, use, and maintain any necessary water-
treatment facilities or water-quality controls if drainage control, 
materials handling, stabilization and revegetation of disturbed areas, 
diversion of runoff, mulching, and other reclamation and remedial 
practices are not adequate to meet the requirements of this section and 
Sec.  816.42 of this part.
    (c) The regulatory authority may require that you take preventive, 
remedial, or monitoring measures in addition to those set forth in this 
part to prevent material damage to the hydrologic balance outside the 
permit area.
    (d)(1) You must examine the runoff-control structures identified 
under Sec.  780.29 of this chapter within 72 hours of cessation of each 
occurrence of the following precipitation events:
    (i) In areas with an average annual precipitation of more than 26.0 
inches, an event of a size equal to or greater than that of a storm 
with a 2-year recurrence interval. You must use the appropriate 
regional Natural Resources Conservation Service synthetic storm 
distribution to determine peak flow for a storm with that recurrence 
interval.
    (ii) In areas with an average annual precipitation of 26.0 inches 
or less, a significant event of a size specified by the regulatory 
authority.
    (2)(i) You must prepare a report, which must be certified by a 
registered professional engineer, and submit the report to the 
regulatory authority within 30 days of cessation of the applicable 
precipitation event under paragraph (d)(1) of this section. The report 
must address the performance of the runoff-control structures, identify 
and describe any material damage to the hydrologic balance outside the 
permit area that occurred, and identify and describe the remedial 
measures taken in response to that damage.
    (ii) The report prepared under paragraph (d)(2)(i) of this section 
may include all precipitation events that occur within 30 days of 
cessation of the applicable precipitation event under paragraph (d)(1) 
of this section.


Sec.  816.35  How must I monitor groundwater?

    (a)(1)(i) You, the permittee, must monitor groundwater in the 
manner specified in the groundwater monitoring plan approved in the 
permit in accordance with Sec.  780.23(a) of this chapter.
    (ii) You must adhere to the data collection, analysis, and 
reporting requirements of paragraphs (a) and (b) of Sec.  777.13 of 
this chapter when conducting monitoring under this section.
    (2) At a minimum, you must conduct monitoring through mining, 
reclamation, and the revegetation responsibility period under Sec.  
816.115 of this part for the monitored area. Monitoring must continue 
beyond that minimum for any additional time needed for monitoring 
results to demonstrate that the criteria of Sec.  816.35(d)(1) and (2) 
of this section have been met, as determined by the regulatory 
authority.
    (b)(1) You must submit groundwater monitoring data to the 
regulatory authority every 3 months, or more frequently if prescribed 
by the regulatory authority.
    (2) Monitoring reports must include analytical results from each 
sample taken during the reporting period.
    (c) When the analysis of any sample indicates noncompliance with 
the terms and conditions of the permit, you must promptly notify the 
regulatory authority, take any applicable actions required under Sec.  
773.17(e) of this chapter, and implement any applicable remedial 
measures required by the hydrologic reclamation plan approved in the 
permit in accordance with Sec.  780.22 of this chapter.
    (d) You may use the permit revision procedures of Sec.  774.13 of 
this chapter to request that the regulatory authority modify the 
groundwater monitoring requirements, including the parameters covered 
and the sampling frequency. The regulatory authority may approve your 
request if you demonstrate, using the monitoring data obtained under 
this section, that--
    (1) Future adverse changes in groundwater quantity or quality are 
unlikely to occur.
    (2) The operation has--
    (i) Minimized disturbance to the hydrologic balance in the permit 
and adjacent areas.
    (ii) Prevented material damage to the hydrologic balance outside 
the permit area.
    (iii) Preserved or restored the biological condition of perennial 
and intermittent streams within the permit and adjacent areas for which 
baseline biological condition data was collected under Sec.  
780.19(c)(6)(vi) of this chapter when groundwater from the permit area 
provides all or part of the base flow of those streams.
    (iv) Maintained or restored the availability and quality of 
groundwater to the extent necessary to support the approved postmining 
land uses within the permit area.
    (v) Protected or replaced the water rights of other users.
    (e) Whenever information available to the regulatory authority 
indicates that additional monitoring is necessary to protect the 
hydrologic balance, to detect hydrologic changes, or to meet other 
requirements of the regulatory program, the regulatory authority must 
issue an order under Sec.  774.10(b) of this chapter requiring that you 
revise your permit to include the necessary additional monitoring.
    (f) You must install, maintain, operate, and, when no longer 
needed, remove all equipment, structures, and

[[Page 93396]]

other devices used in conjunction with monitoring groundwater, 
consistent with Sec. Sec.  816.13 and 816.39 of this part.


Sec.  816.36  How must I monitor surface water?

    (a)(1)(i) You, the permittee, must monitor surface water in the 
manner specified in the surface-water monitoring plan approved in the 
permit in accordance with Sec.  780.23(b) of this chapter.
    (ii) You must adhere to the data collection, analysis, and 
reporting requirements of paragraphs (a) and (b) of Sec.  777.13 of 
this chapter when conducting monitoring under this section.
    (2) Monitoring must continue through mining and during reclamation 
until the regulatory authority releases the entire bond amount for the 
monitored area under Sec. Sec.  800.40 through 800.43 of this chapter.
    (b)(1) You must submit surface-water monitoring data to the 
regulatory authority every 3 months, or more frequently when prescribed 
by the regulatory authority.
    (2) Monitoring reports must include analytical results from each 
sample taken during the reporting period.
    (3) The reporting requirements of paragraph (b) of this section do 
not exempt you from meeting any National Pollutant Discharge 
Elimination System (NPDES) reporting requirements.
    (c) When the analysis of any sample indicates noncompliance with 
the terms and conditions of the permit, you must promptly notify the 
regulatory authority, take any applicable actions required under Sec.  
773.17(e) of this chapter, and implement any applicable remedial 
measures required by the hydrologic reclamation plan approved in the 
permit in accordance with Sec.  780.22 of this chapter.
    (d) You may use the permit revision procedures of Sec.  774.13 of 
this chapter to request that the regulatory authority modify the 
surface-water monitoring requirements (except those required by the 
NPDES permitting authority), including the parameters covered and the 
sampling frequency. The regulatory authority may approve your request 
if you demonstrate, using the monitoring data obtained under this 
section, that--
    (1) Future adverse changes in surface-water quantity or quality are 
unlikely to occur.
    (2) The operation has--
    (i) Minimized disturbance to the hydrologic balance in the permit 
and adjacent areas.
    (ii) Prevented material damage to the hydrologic balance outside 
the permit area.
    (iii) Preserved or restored the biological condition of perennial 
and intermittent streams within the permit and adjacent areas for which 
baseline biological condition data was collected under Sec.  
780.19(c)(6)(vi) of this chapter.
    (iv) Maintained or restored the availability and quality of surface 
water to the extent necessary to support the approved postmining land 
uses within the permit area.
    (v) Not precluded attainment of any designated use of a surface 
water under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    (vi) Protected or replaced the water rights of other users.
    (e) Whenever information available to the regulatory authority 
indicates that additional monitoring is necessary to protect the 
hydrologic balance, to detect hydrologic changes, or to meet other 
requirements of the regulatory program, the regulatory authority must 
issue an order under Sec.  774.10(b) of this chapter requiring that you 
revise your permit to include the necessary additional monitoring.
    (f) You must install, maintain, operate, and, when no longer 
needed, remove all equipment, structures, and other devices used in 
conjunction with monitoring surface water.


Sec.  816.37  How must I monitor the biological condition of streams?

    (a)(1)(i) You must monitor the biological condition of perennial 
and intermittent streams in the manner specified in the plan approved 
in the permit in accordance with Sec.  780.23(c) of this chapter.
    (ii) You must adhere to the data collection, analysis, and 
reporting requirements of paragraphs (a) and (b) of Sec.  777.13 of 
this chapter and use a bioassessment protocol that complies with Sec.  
780.19(c)(6)(vii) of this chapter when conducting monitoring under this 
section.
    (2) Monitoring must continue through mining and during reclamation 
until the regulatory authority releases the entire bond amount for the 
monitored area under Sec. Sec.  800.40 through 800.43 of this chapter.
    (b) You must submit biological condition monitoring data to the 
regulatory authority on an annual basis, or more frequently if 
prescribed by the regulatory authority.
    (c) Whenever information available to the regulatory authority 
indicates that additional monitoring is necessary to meet the 
requirements of the regulatory program, the regulatory authority must 
issue an order under Sec.  774.10(b) of this chapter requiring that you 
revise your permit to include the necessary additional monitoring.


Sec.  816.38  How must I handle acid-forming and toxic-forming 
materials?

    (a) You, the permittee, must use the best technology currently 
available to handle acid-forming and toxic-forming materials in a 
manner that will avoid the creation of acid or toxic mine drainage into 
surface water and groundwater. At a minimum, you must comply with the 
plan approved in the permit in accordance with Sec.  780.12(n) of this 
chapter and adhere to disposal, treatment, and storage practices that 
are consistent with other material handling and disposal provisions of 
this chapter.
    (b) You may temporarily store acid-forming and toxic-forming 
materials only if the regulatory authority specifically approves 
temporary storage as necessary and finds in writing in the permit that 
the proposed storage method will protect surface water and groundwater 
by preventing erosion, the formation of polluted runoff, and the 
infiltration of polluted water into aquifers. The regulatory authority 
must specify a maximum time for temporary storage, which may not exceed 
the period until permanent disposal first becomes feasible. In 
addition, storage must not result in any risk of water pollution, 
adverse impacts to the biology of perennial or intermittent streams, or 
other environmental damage.


Sec.  816.39  What must I do with exploratory or monitoring wells when 
I no longer need them?

    (a) Except as provided in paragraph (b) of this section, you, the 
permittee, must permanently seal exploratory or monitoring wells in a 
safe and environmentally sound manner in accordance with Sec.  816.13 
of this part before the regulatory authority may approve full release 
of the bond posted for the land on which the wells are located under 
Sec. Sec.  800.40 through 800.43 of this chapter.
    (b) With the prior approval of the regulatory authority, you may 
transfer wells to another party for further use. The conditions of the 
transfer must comply with state and local laws. You will remain 
responsible for the proper management of the wells until full release 
of the bond posted for the land on which the wells are located under 
Sec. Sec.  800.40 through 800.43 of this chapter.


Sec.  816.40  What responsibility do I have to replace water supplies?

    (a) Replacement of adversely-impacted water supplies. (1) You, the 
permittee, must replace the water

[[Page 93397]]

supply of an owner of an interest in real property who obtains all or 
part of his or her supply of water for domestic, agricultural, 
industrial, or other legitimate use from an underground or surface 
source when the water supply has been adversely impacted by 
contamination, diminution, or interruption as a result of your surface 
mining activities.
    (2) The replacement supply must be equivalent to the quantity and 
quality of the premining supply.
    (3) Replacement includes provision of an equivalent water supply 
delivery system and payment of operation and maintenance expenses in 
excess of customary and reasonable delivery costs for the premining 
water supply. If you and the water supply owner agree, your obligation 
to pay operation and maintenance costs may be satisfied by a one-time 
payment in an amount that covers the present worth of the increased 
annual operation and maintenance costs for a period upon which you and 
the water supply owner agree.
    (4) If the affected water supply was not needed for the land use in 
existence at the time of loss, contamination, or diminution, and if the 
supply is not needed to achieve the postmining land use, you may 
satisfy the replacement requirements by demonstrating that a suitable 
alternative water source is available and could feasibly be developed, 
provided you obtain written concurrence from the owner of the affected 
water supply.
    (b) Measures to address anticipated adverse impacts to protected 
water supplies. For anticipated loss of or damage to a protected water 
supply, you must adhere to the requirements set forth in the permit in 
accordance with Sec.  780.22(b) of this chapter.
    (c) Measures to address unanticipated adverse impacts to protected 
water supplies. For unanticipated loss of or damage to a protected 
water supply, you must--
    (1) Provide an emergency temporary water supply within 24 hours of 
notification of the loss. The temporary supply must be adequate in 
quantity and quality to meet normal household needs.
    (2) Develop and submit a plan for a permanent replacement supply to 
the regulatory authority within 30 days of receiving notice that an 
unanticipated loss of or damage to a protected water supply has 
occurred.
    (3) Provide a permanent replacement water supply within 2 years of 
the date of receiving notice of an unanticipated loss of or damage to a 
protected water supply. The regulatory authority may grant an extension 
if you have made a good-faith effort to meet this deadline, but have 
been unable to do so for reasons beyond your control.
    (d) Basis for determination of adverse impact. The regulatory 
authority must use the baseline hydrologic and geologic information 
required under Sec.  780.19 of this chapter and all other available 
information to determine whether and to what extent the mining 
operation adversely impacted the damaged water supply.


Sec.  816.41  Under what conditions may I discharge water and other 
materials into an underground mine?

    (a) You may not discharge any water or other materials from a 
surface coal mining and reclamation operation into an underground mine 
unless the regulatory authority specifically approves the discharge in 
writing, based upon a demonstration that--
    (1) The discharge will be made in a manner that--
    (i) Minimizes disturbances to the hydrologic balance within the 
permit area;
    (ii) Prevents material damage to the hydrologic balance outside the 
permit area, including the hydrologic balance of the area in which the 
underground mine receiving the discharge is located;
    (iii) Does not adversely impact the biology of perennial or 
intermittent streams; and
    (iv) Otherwise eliminates public hazards resulting from surface 
mining activities.
    (2) The discharge will not cause or contribute to a violation of 
applicable state or tribal water quality standards or effluent 
limitations, including, but not limited to, water quality standards 
established under the authority of section 303(c) of the Clean Water 
Act, 33 U.S.C. 1313(c), and effluent limitations established in any 
National Pollutant Discharge Elimination System permit issued for the 
operation under section 402 of the Clean Water Act, 33 U.S.C. 1342, or 
its state or tribal counterpart.
    (3)(i) The discharge will be at a known rate and of a quality that 
will meet the effluent limitations for pH and total suspended solids in 
40 CFR part 434.
    (ii) The regulatory authority may approve discharges of water that 
exceed the effluent limitations for pH and total suspended solids in 40 
CFR part 434 if the available evidence indicates that there is no 
direct hydrologic connection between the underground mine and other 
waters and that those exceedances will not be inconsistent with 
paragraph (a)(1) of this section.
    (4) The discharge will not cause or contribute to a violation of 
applicable state or tribal water quality standards for groundwater.
    (5) The Mine Safety and Health Administration has approved the 
discharge.
    (6) You have obtained written permission from the owner of the mine 
into which the discharge is to be made and you have provided a copy of 
that authorization to the regulatory authority.
    (b) Discharges are limited to the following materials:
    (1) Water.
    (2) Coal processing waste.
    (3) Fly ash from a coal-fired facility.
    (4) Sludge from an acid-mine-drainage treatment facility.
    (5) Flue-gas desulfurization sludge.
    (6) Inert materials used for stabilizing underground mines.
    (7) Underground mine development waste.


Sec.  816.42  What Clean Water Act requirements apply to discharges 
from my operation?

    (a) Nothing in this section, nor any action taken pursuant to this 
section, supersedes or modifies--
    (1) The authority or jurisdiction of federal, state, or tribal 
agencies responsible for administration, implementation, and 
enforcement of the Clean Water Act, 33 U.S.C. 1251 et seq.; or
    (2) The decisions that those agencies make under the authority of 
the Clean Water Act, 33 U.S.C. 1251 et seq., including decisions on 
whether a particular set of facts constitutes a violation of the Clean 
Water Act.
    (b) Discharges of water from surface mining activities and from 
areas disturbed by surface mining activities must--
    (1) Be made in compliance with all applicable water quality laws 
and regulations, including the effluent limitations established in the 
National Pollutant Discharge Elimination System permit for the 
operation under section 402 of the Clean Water Act, 33 U.S.C. 1342, or 
its state or tribal counterpart. The regulatory authority must notify 
the appropriate Clean Water Act authority whenever it takes action to 
enforce a permit condition required by Sec.  773.17(i) of this chapter 
with respect to an effluent limitation in a National Pollutant 
Discharge Elimination System permit. The regulatory authority must 
initiate coordination with the Clean Water Act authority before taking 
enforcement action if coordination is needed to determine whether a 
violation of the National Pollutant Discharge Elimination System permit 
exists.

[[Page 93398]]

    (2) Not cause or contribute to a violation of applicable water 
quality standards established under the authority of section 303(c) of 
the Clean Water Act, 33 U.S.C. 1313(c), or other applicable state or 
tribal water quality standards.
    (c) Discharges of overburden, coal mine waste, and other materials 
into waters subject to the jurisdiction of the Clean Water Act, 33 
U.S.C. 1251 et seq., must be made in compliance with section 404 of the 
Clean Water Act, 33 U.S.C. 1344, and its implementing regulations.
    (d) The regulatory authority will coordinate an investigation with 
the appropriate Clean Water Act authority whenever information 
available to the regulatory authority indicates that mining activities 
may be causing or contributing to a violation of the water quality 
standards to which paragraph (b)(2) of this section refers, or to a 
violation of section 404 of the Clean Water Act, 33 U.S.C. 1344, and 
its implementing regulations. If, after coordination with the 
appropriate Clean Water Act authority, it is determined that mining 
activities are causing or contributing to a Clean Water Act violation, 
the regulatory authority must, in addition to any action taken by the 
appropriate Clean Water Act authority, independently take enforcement 
or other appropriate action to correct the cause of the violation.
    (e) You must construct water treatment facilities for discharges 
from the operation as soon as the need for those facilities becomes 
evident.
    (f)(1) You must remove precipitates and otherwise maintain all 
water treatment facilities requiring the use of settling ponds or 
lagoons as necessary to maintain the functionality of those facilities.
    (2) You must dispose of all precipitates removed from facilities 
under paragraph (f)(1) of this section either in an approved solid 
waste landfill or within the permit area in accordance with a plan 
approved by the regulatory authority.
    (g) You must operate and maintain water treatment facilities until 
the regulatory authority authorizes removal based upon monitoring data 
demonstrating that influent to the facilities meets all applicable 
effluent limitations without treatment and that discharges would not 
cause or contribute to a violation of applicable water quality 
standards established under the authority of section 303(c) of the 
Clean Water Act, 33 U.S.C. 1313(c), or other applicable state or tribal 
water quality standards if left untreated.


Sec.  816.43  How must I construct and maintain diversions?

    (a) Classification. The term diversion applies to the following 
categories of channels that convey surface water flow:
    (1) Diversion Ditches. Diversion ditches are channels constructed 
to convey surface water runoff or other flows from areas not disturbed 
by mining activities away from or around disturbed areas. Diversion 
ditches may be temporary or permanent.
    (i) You must remove a temporary diversion ditch as soon as it is no 
longer needed. You must restore the land disturbed by the removal 
process in accordance with the approved permit and Sec.  816.55 of this 
part. Before removing a temporary diversion ditch, you must modify or 
remove downstream water treatment facilities previously protected by 
the ditch to prevent overtopping or failure of the facilities. You must 
continue to maintain water treatment facilities until they are no 
longer needed.
    (ii) You may retain a diversion ditch as a permanent structure if 
you demonstrate and the regulatory authority finds that retention of 
that diversion ditch would--
    (A) Be environmentally beneficial;
    (B) Meet the requirements of the reclamation plan approved under 
Sec.  780.12 of this chapter; and
    (C) Be consistent with the surface drainage pattern restoration 
requirements of Sec. Sec.  816.56 and 816.57 of this part.
    (iii) When approved in the permit, you may divert the following 
flows away from the disturbed area by means of temporary or permanent 
diversion ditches without treatment:
    (A) Any surface runoff or other flows from mined areas abandoned 
before May 3, 1978.
    (B) Any surface runoff or other flows from undisturbed areas.
    (C) Any surface runoff or other flows from reclaimed areas for 
which the criteria of Sec.  816.46 of this part for siltation structure 
removal have been met.
    (2) Stream diversions. Stream diversions are temporary or permanent 
relocations of perennial or intermittent streams. Diversions of 
perennial and intermittent streams must comply with the applicable 
requirements of this section, Sec.  780.28 of this chapter, and Sec.  
816.57 of this part.
    (i) You must remove temporary stream diversions after the original 
stream channel is reconstructed after mining. As set forth in Sec.  
780.28(f) of this chapter, different requirements apply to temporary 
stream diversions depending on whether they will be in existence for 
less or more than 3 years.
    (ii) Permanent stream diversions remain in their locations 
following mining and reclamation.
    (3) Conveyances and channels within the disturbed area. All other 
conveyances and channels that are constructed within the disturbed area 
to transport surface water are also diversions. During mining, these 
channels or conveyances must deliver all captured surface water flow to 
siltation structures.
    (i) You must remove temporary conveyances or channels when they are 
no longer needed for their intended purpose.
    (ii) When approved in the permit, you may retain conveyances or 
channels that support or enhance the approved postmining land use.
    (b) Design criteria. When the permit requires the use of siltation 
structures for sediment control, you must construct diversions designed 
to the standards of this section to convey runoff from the disturbed 
area to the siltation structures unless the topography will naturally 
direct all surface runoff or other flows to a siltation structure.
    (1) You must design all diversions to--
    (i) Ensure the safety of the public.
    (ii) Minimize adverse impacts to the hydrologic balance, including 
the biology of perennial and intermittent streams, within the permit 
and adjacent areas.
    (iii) Prevent material damage to the hydrologic balance outside the 
permit area.
    (2) You must design, locate, construct, maintain, and use each 
diversion and its appurtenant structures to--
    (i) Be stable.
    (ii) Provide and maintain the capacity to safely pass the peak flow 
of surface runoff from a 2-year, 6-hour precipitation event for a 
temporary diversion and a 10-year, 6-hour precipitation event for a 
permanent diversion. Flow capacity for stream diversions includes both 
the in-channel capacity and the flood-prone area overbank capacity. 
Flow capacity for diversion ditches and conveyances or channels 
includes only in-channel capacity, with adequate freeboard to prevent 
out-of-channel flow. You must use the appropriate regional Natural 
Resources Conservation Service synthetic storm distribution to 
determine peak flows.
    (iii) Prevent, to the extent possible using the best technology 
currently available, additional contributions of

[[Page 93399]]

suspended solids to streamflow or runoff outside the permit area.
    (iv) Comply with all applicable federal, state, tribal, and local 
laws and regulations.
    (c) Application to Sec.  816.41. You may not divert surface runoff 
or other flows into underground mines without approval of the 
regulatory authority under Sec.  816.41 of this part.
    (d) Additional requirements. The regulatory authority may specify 
additional design criteria for diversions to meet the requirements of 
this section.


Sec.  816.45  What sediment control measures must I implement?

    (a) You must design, construct, and maintain appropriate sediment 
control measures, using the best technology currently available to--
    (1) Prevent, to the extent possible, additional contributions of 
sediment to streamflow or to runoff outside the permit area.
    (2) Meet the applicable effluent limitations referenced in Sec.  
816.42(a) of this part.
    (3) Minimize erosion to the extent possible.
    (b) Sediment control measures include practices carried out within 
the disturbed area. Sediment control measures consist of the use of 
proper mining and reclamation methods and sediment control practices, 
singly or in combination. Sediment control methods include but are not 
limited to--
    (1) Disturbing the smallest practicable area at any one time during 
the mining operation through progressive backfilling, grading, and 
prompt revegetation.
    (2) Shaping and stabilizing the backfilled material to promote a 
reduction in the rate and volume of runoff.
    (3) Retaining sediment within disturbed areas.
    (4) Diverting surface runoff from undisturbed areas away from 
disturbed areas.
    (5) Using protected channels or pipes to convey surface runoff from 
undisturbed areas through disturbed areas so as not to cause additional 
erosion.
    (6) Using straw dikes, riprap, check dams, mulches, vegetative 
sediment filters, dugout ponds, and other measures that reduce overland 
flow velocity, reduce runoff volume, or trap sediment.
    (7) Treating surface runoff collected in sedimentation ponds with 
flocculants or other chemicals.


Sec.  816.46  What requirements apply to siltation structures?

    (a) Scope. For the purpose of this section only, the phrase 
``disturb the land surface'' does not include those areas--
    (1) In which the only surface mining activities consist of 
diversions, siltation structures, or roads that are designed, 
constructed, and maintained in accordance with this part; and
    (2) For which you do not plan to otherwise disturb the land surface 
upgradient of the diversion, siltation structure, or road.
    (b) General requirements. (1) When siltation structures will be 
used to achieve the requirements of Sec.  816.45 of this part, you must 
construct those structures before beginning any surface mining 
activities that will disturb the land surface.
    (2) Upon completion of construction of a siltation structure, a 
qualified registered professional engineer, or, in any state that 
authorizes land surveyors to prepare and certify plans in accordance 
with Sec.  780.25(a) of this chapter, a qualified registered 
professional land surveyor, must certify that the structure has been 
constructed as designed and as approved in the reclamation plan in the 
permit.
    (3) Any siltation structure that impounds water must be designed, 
constructed and maintained in accordance with Sec.  816.49 of this 
chapter.
    (4) You must maintain siltation structures until removal is 
authorized by the regulatory authority and the disturbed area has been 
stabilized and revegetated.
    (5)(i) When a siltation structure is removed, you must regrade the 
land upon which the structure was located and revegetate the land in 
accordance with the reclamation plan and Sec. Sec.  816.111 and 816.116 
of this chapter.
    (ii) Paragraph (b)(5)(i) of this section does not apply to 
sedimentation ponds approved by the regulatory authority for retention 
as permanent impoundments under Sec.  816.49(b) of this part if the 
maintenance requirements of Sec.  800.42(c)(5) of this chapter are met.
    (c) Sedimentation ponds. (1) When used, sedimentation ponds must--
    (i) Be located as near as possible to the disturbed area and 
outside perennial or intermittent stream channels unless approved by 
the regulatory authority in the permit in accordance with Sec. Sec.  
780.28 and 816.57(c) of this chapter.
    (ii) Be designed, constructed, and maintained to--
    (A) Provide adequate sediment storage volume.
    (B) Provide adequate detention time to allow the effluent from the 
ponds to meet applicable effluent limitations.
    (C) Contain or treat the 10-year, 24-hour precipitation event 
(``design event'') unless a lesser design event is approved by the 
regulatory authority based on terrain, climate, other site-specific 
conditions, and a demonstration that the effluent limitations 
referenced in Sec.  816.42 of this part will be met.
    (D) Provide a nonclogging dewatering device adequate to maintain 
the detention time required under paragraph (c)(1)(ii)(B) of this 
section.
    (E) Minimize short circuiting to the extent possible.
    (F) Provide periodic sediment removal sufficient to maintain 
adequate volume for the design event.
    (G) Ensure against excessive settlement.
    (H) Be free of sod, large roots, frozen soil, and acid-forming or 
toxic-forming materials.
    (I) Be compacted properly.
    (2) Spillways. A sedimentation pond must include either a 
combination of principal and emergency spillways or a single spillway 
configured as specified in Sec.  816.49(a)(9) of this part.
    (d) Other treatment facilities. (1) You must design other treatment 
facilities to treat the 10-year, 24-hour precipitation event unless the 
regulatory authority approves a lesser design event based upon terrain, 
climate, other site-specific conditions, and a demonstration that the 
effluent limitations referenced in Sec.  816.42 of this part will be 
met.
    (2) You must design other treatment facilities in accordance with 
the applicable requirements of paragraph (c) of this section.
    (e) Exemptions. The regulatory authority may grant an exemption 
from the requirements of this section if--
    (1) The disturbed drainage area within the total disturbed area is 
small; and
    (2) You demonstrate that neither siltation structures nor alternate 
sediment control measures are necessary for drainage from the disturbed 
drainage area to comply with Sec.  816.42 of this part.


Sec.  816.47  What requirements apply to discharge structures for 
impoundments?

    You must control discharges from sedimentation ponds, permanent and 
temporary impoundments, coal mine waste impounding structures, and 
diversions by energy dissipators, riprap channels, and other devices 
when necessary to reduce erosion, to control meander migration, to 
prevent deepening or enlargement of stream channels, or to minimize 
disturbance of

[[Page 93400]]

the hydrologic balance. You must design discharge structures according 
to standard engineering design procedures.


Sec.  816.49  What requirements apply to impoundments?

    (a) Requirements that apply to both permanent and temporary 
impoundments.--
    (1) MSHA requirements. An impoundment meeting the criteria of Sec.  
77.216(a) of this title must comply with the requirements of Sec.  
77.216 of this title and this section.
    (2) Stability. (i) An impoundment that meets the criteria of Sec.  
77.216(a) of this title or that includes a dam with a significant or 
high hazard potential classification under Sec.  780.25(a) of this 
chapter must have a minimum static safety factor of 1.5 for a normal 
pool with steady state seepage saturation conditions and a seismic 
safety factor of at least 1.2.
    (ii) Impoundments not included in paragraph (a)(2)(i) of this 
section, except for a coal mine waste impounding structure, must have a 
minimum static safety factor of 1.3 for a normal pool with steady state 
seepage saturation conditions or meet the requirements of Sec.  
780.25(e)(2) of this chapter.
    (3) Freeboard. (i) Impoundments must have adequate freeboard to 
resist overtopping by waves that occur in conjunction with the typical 
increase in water elevation at the downwind edge of any body of water, 
waves resulting from sudden influxes of surface runoff from 
precipitation events, or waves resulting from any combination of these 
events or other events.
    (ii) An impoundment that includes a dam with a significant or high 
hazard potential classification under Sec.  780.25(a) of this chapter 
must comply with the freeboard hydrograph criteria in the following 
table:

                                 Minimum Auxiliary Spillway Hydrologic Criteria
----------------------------------------------------------------------------------------------------------------
                                                          Design precipitation event for--
 Hazard potential classification  ------------------------------------------------------------------------------
          of embankment                 Auxiliary spillway hydrograph               Freeboard hydrograph
----------------------------------------------------------------------------------------------------------------
Significant......................  P100 \1\ + 0.12(PMP \2\-P100)           P100 + 0.40(PMP-P100).
High.............................  P100 + 0.26(PMP-P100)                   PMP.
----------------------------------------------------------------------------------------------------------------
\1\ P100 = Precipitation event for 100-year return interval.
\2\ PMP = Probable Maximum Precipitation event.

    (4) Foundation. (i) Foundations and abutments for an impounding 
structure must be stable during all phases of construction and 
operation and must be designed based on adequate and accurate 
information on the foundation and abutment conditions.
    (ii) You must conduct foundation and abutment investigations, as 
well as any necessary laboratory testing of foundation material, to 
determine the design requirements for foundation stability and control 
of underseepage for an impoundment that includes a dam with a 
significant or high hazard potential classification under Sec.  
780.25(a) of this chapter.
    (iii) You must remove all vegetative and organic materials from the 
foundation area and excavate and prepare the foundation area to resist 
failure. You must install cutoff trenches if necessary to ensure 
stability.
    (5) Protection of impoundment slopes. You must take measures to 
protect impoundment slopes from surface erosion and the adverse impacts 
of a sudden drawdown.
    (6) Protection of embankment faces. Faces of embankments and 
surrounding areas shall be vegetated, except that faces where water is 
impounded may be riprapped or otherwise stabilized in accordance with 
accepted design practices.
    (7) Spillways. An impoundment must include either a combination of 
principal and emergency spillways or a single spillway configured as 
specified in paragraph (a)(7)(i) of this section, designed and 
constructed to safely pass the applicable design precipitation event 
specified in paragraph (a)(7)(ii) of this section, except as set forth 
in paragraph (c)(2) of this section.
    (i) The regulatory authority may approve a single open-channel 
spillway that is:
    (A) Of nonerodible construction and designed to carry sustained 
flows; or
    (B) Earth- or grass-lined and designed to carry short-term, 
infrequent flows at non-erosive velocities where sustained flows are 
not expected.
    (ii) Except as specified in paragraph (c)(2) of this section, the 
required design precipitation event for an impoundment meeting the 
spillway requirements of paragraph (a)(7) of this section is:
    (A) For an impoundment that includes a dam with a significant or 
high hazard potential classification under Sec.  780.25(a) of this 
chapter, the design precipitation event specified in the auxiliary 
spillway hydrograph column in the table in paragraph (a)(3)(ii) of this 
section, or any greater event specified by the regulatory authority.
    (B) For an impoundment meeting the criteria of Sec.  77.216(a) of 
this title, the 100-year, 6-hour event, or any greater event specified 
by the regulatory authority.
    (C) For an impoundment not included in paragraphs (a)(7)(ii)(A) and 
(B) of this section, the 25-year, 6-hour event, or any greater event 
specified by the regulatory authority.
    (8) Highwalls. The vertical portion of any highwall remnant within 
the impoundment must be located far enough below the low-water line 
along the full extent of the highwall to provide adequate safety and 
access for the proposed water users.
    (9) Inspections. Except as provided in paragraph (a)(9)(iv) of this 
section, a qualified registered professional engineer or other 
qualified professional specialist under the direction of a professional 
engineer must inspect each impoundment as provided in paragraph 
(a)(9)(i) of this section. The professional engineer or specialist must 
be experienced in the construction of impoundments.
    (i) Inspections must be made regularly during construction, upon 
completion of construction, and at least yearly until removal of the 
structure or release of the performance bond.
    (ii) After each inspection required by paragraph (a)(9)(i) of this 
section, the qualified registered professional engineer, or qualified 
registered professional land surveyor as specified in paragraph 
(a)(9)(iv) of this section, must promptly provide to the regulatory 
authority a certified report that the impoundment has been constructed 
and/or maintained as designed and in accordance with the approved plan 
and this chapter. The report must include a discussion of any 
appearance of instability, any structural weakness or other hazardous 
condition, the depth and elevation of any impounded waters, the 
existing storage capacity, any

[[Page 93401]]

existing or required monitoring procedures and instrumentation, and any 
other aspects of the structure affecting stability.
    (iii) You must retain a copy of the report at or near the minesite.
    (iv) In any state that authorizes land surveyors to prepare and 
certify plans in accordance with Sec.  780.25(b)(1) of this chapter, a 
qualified registered professional land surveyor may inspect any 
temporary or permanent impoundment that does not meet the criteria of 
Sec.  77.216(a) of this title, or that is not classified as having a 
significant or high hazard potential under Sec.  780.25(a) of this 
chapter, and certify and submit the report required by paragraph 
(a)(9)(ii) of this section, except that a qualified registered 
professional engineer must certify all coal mine waste impounding 
structures covered by Sec.  816.84 of this chapter. The professional 
land surveyor must be experienced in the construction of impoundments.
    (10) Examinations. (i) Impoundments that meet the criteria of Sec.  
77.216 of this title, or that are classified as having a significant or 
high hazard potential under Sec.  780.25(a) of this chapter, must be 
examined in accordance with Sec.  77.216-3 of this title.
    (ii) Impoundments that are not subject to Sec.  77.216 of this 
title, or that are not classified as having a significant or high 
hazard potential under Sec.  780.25(a) of this chapter, must be 
examined at least quarterly. A qualified person designated by the 
operator must examine impoundments for the appearance of structural 
weakness and other hazardous conditions.
    (11) Emergency procedures. If any examination or inspection 
discloses that a potential hazard exists, the person who examined the 
impoundment must promptly inform the regulatory authority of the 
finding and of the emergency procedures formulated for public 
protection and remedial action. The regulatory authority must be 
notified immediately if adequate procedures cannot be formulated or 
implemented. The regulatory authority then must notify the appropriate 
agencies that other emergency procedures are required to protect the 
public.
    (b) Requirements that apply only to permanent impoundments. A 
permanent impoundment of water may be created if authorized by the 
regulatory authority in the approved permit based upon the following 
demonstration:
    (1) The size and configuration of the impoundment will be adequate 
for its intended purposes.
    (2) The quality of impounded water will be suitable on a permanent 
basis for its intended use and, after reclamation, discharges from the 
impoundment will not cause or contribute to a violation of applicable 
state or tribal water quality standards or effluent limitations, 
including, but not limited to, water quality standards established 
under the authority of section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), and effluent limitations established in the National Pollutant 
Discharge Elimination System permit for the operation under section 402 
of the Clean Water Act, 33 U.S.C. 1342, or its state or tribal 
counterpart.
    (3) The water level will be sufficiently stable and be capable of 
supporting the intended use.
    (4) Final grading will provide for adequate safety and access for 
proposed water users.
    (5) The impoundment will not result in diminution of the quality or 
quantity of surface water or groundwater used by surrounding landowners 
for agricultural, industrial, recreational, or domestic uses.
    (6) The impoundment will be suitable for the approved postmining 
land use.
    (7) Approval of the impoundment will not result in retention of 
spoil piles or ridges that are inconsistent with the definition of 
approximate original contour.
    (8) Approval of the impoundment will not result in the creation of 
an excess spoil fill elsewhere within the permit area.
    (9) The impoundment has been designed with dimensions, features, 
and other characteristics that will enhance fish and wildlife habitat 
to the extent that doing so is not inconsistent with the intended use.
    (c) Requirements that apply only to temporary impoundments that 
rely primarily upon storage. (1) In lieu of meeting the requirements in 
paragraph (a)(7)(i) of this section, the regulatory authority may 
approve an impoundment that relies primarily on storage to control the 
runoff from the design precipitation event when you demonstrate, and a 
qualified registered professional engineer or qualified registered 
professional land surveyor in accordance with Sec.  780.25(b) of this 
chapter certifies, that the impoundment will safely control the design 
precipitation event.
    (2) You must use current prudent engineering practices to safely 
remove the water from an impoundment constructed in accordance with 
paragraph (c)(1) of this section.
    (3) An impoundment constructed in accordance with paragraph (c)(1) 
of this section must be located where failure would not be expected to 
cause loss of life or serious property damage, unless the impoundment 
meets one of the following exceptions:
    (i) An impoundment that meets the criteria of Sec.  77.216(a) of 
this title, or that is classified as having a significant or high 
hazard potential under Sec.  780.25(a) of this chapter, and is designed 
to control the precipitation of the probable maximum precipitation of a 
6-hour event, or any greater event specified by the regulatory 
authority.
    (ii) An impoundment not included in paragraph (c)(3)(i) of this 
section that is designed to control the precipitation of the 100-year, 
6-hour event, or any greater event specified by the regulatory 
authority.


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

    (a) Before seeking final bond release under Sec.  800.42(d) of this 
chapter, you must--
    (1) Remove all temporary structures and reclaim the land upon which 
those structures were located in accordance with the approved permit; 
and
    (2) Ensure that all sedimentation ponds, diversions, and 
impoundments approved for retention after final bond release have been 
maintained properly and meet all applicable requirements of the 
approved permit and this chapter for retention as permanent structures. 
You must renovate the structures if necessary to meet the requirements 
for retention.
    (b) [Reserved]


Sec.  816.56  What additional performance standards apply to mining 
activities conducted in or through an ephemeral stream?

    (a) Compliance with federal, state, and tribal water quality laws 
and regulations. (1) You may conduct surface mining activities in or 
affecting waters subject to the jurisdiction of the Clean Water Act, 33 
U.S.C. 1251 et seq., only if you first obtain all necessary 
authorizations, certifications, and permits under that law.
    (2) Surface mining activities must comply with all applicable state 
and tribal laws and regulations concerning surface water and 
groundwater.
    (b) Postmining surface drainage pattern and stream-channel 
configuration. If you mine through an ephemeral stream, you must 
construct a postmining surface drainage pattern and stream-channel 
configurations that are consistent with the surface drainage pattern 
and stream-channel configurations approved in the permit

[[Page 93402]]

in accordance with Sec.  780.27 of this chapter.
    (c) Establishment of streamside vegetative corridors. (1) If you 
mine through an ephemeral stream, you must establish a vegetative 
corridor at least 100 feet wide along each bank of the reconstructed 
stream channel. The 100-foot distance must be measured horizontally on 
a line perpendicular to the stream, beginning at the ordinary high 
water mark. The corridor must be consistent with natural vegetation 
patterns.
    (2) When planting the streamside vegetative corridors required by 
paragraph (c)(1) of this section, you must--
    (i) Use appropriate native species adapted to the area, unless an 
agency responsible for implementing section 404 of the Clean Water Act, 
33 U.S.C. 1344, requires the use of non-native species.
    (ii) Ensure that the species planted are consistent with the 
revegetation plan approved in the permit.
    (iii) Include appropriate native hydrophytic vegetation, vegetation 
typical of floodplains, or hydrophilic vegetation characteristic of 
riparian areas and wetlands to the extent that the corridor contains 
suitable habitat for those species and the stream and the geomorphology 
of the area are capable of supporting vegetation of that nature.
    (iv) Use native trees and shrubs when planting areas within the 
streamside corridor that were forested at the time of application or 
that would revert to forest under conditions of natural succession.
    (3) Paragraphs (c)(1) and (2) of this section do not require 
planting of hydrophytic or hydrophilic species within those portions of 
streamside corridors where the stream, soils, or climate are incapable 
of providing the moisture or other growing conditions needed to support 
and sustain hydrophytic or hydrophilic species. In those situations, 
you must plant the corridor with appropriate native species that are 
consistent with the baseline information concerning natural streamside 
vegetation included in the permit application under Sec.  779.19 of 
this chapter, unless otherwise directed by an agency responsible for 
implementing section 404 of the Clean Water Act, 33 U.S.C. 1344.
    (4) Paragraphs (c)(1) through (3) of this section do not apply to--
    (i) Prime farmland historically used for cropland; or
    (ii) Situations in which establishment of a streamside vegetative 
corridor comprised of native species would be incompatible with an 
approved postmining land use that is implemented before final bond 
release under Sec. Sec.  800.40 through 800.43 of this chapter.


Sec.  816.57  What additional performance standards apply to mining 
activities conducted in or through a perennial or intermittent stream 
or on the surface of land within 100 feet of a perennial or 
intermittent stream?

    (a) Compliance with federal, state, and tribal water quality laws 
and regulations. (1) You may conduct surface mining activities in or 
affecting waters subject to the jurisdiction of the Clean Water Act, 33 
U.S.C. 1251 et seq., only if you first obtain all necessary 
authorizations, certifications, and permits under that law.
    (2) Surface mining activities must comply with all applicable state 
and tribal laws and regulations concerning surface water and 
groundwater.
    (b) Prohibition on mining in or within 100 feet of a perennial or 
intermittent stream. You may not conduct surface mining activities in 
or through a perennial or intermittent stream, or that would disturb 
the surface of land within 100 feet of a perennial or intermittent 
stream, unless the regulatory authority authorizes you to do so in the 
permit after making the findings required under Sec.  780.28 of this 
chapter. The 100-foot distance must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark.
    (c) Postmining surface drainage pattern and stream-channel 
configuration. (1) If you mine through or permanently divert a 
perennial or intermittent stream, you must construct a postmining 
surface drainage pattern and stream-channel configurations that are 
consistent with the surface drainage pattern and stream-channel 
configurations approved in the permit in accordance with Sec.  780.28 
of this chapter.
    (2) Upon completion of construction of a stream-channel diversion 
for a perennial or intermittent stream, or reconstruction of a stream 
channel after mining through a perennial or intermittent stream, you 
must obtain a certification from a qualified registered professional 
engineer that the stream-channel diversion or reconstructed stream 
channel has been constructed in accordance with the design approved in 
the permit and that it meets all engineering-related requirements of 
this section. This certification may be limited to the location, 
dimensions, and physical characteristics of the stream channel.
    (d) Establishment of streamside vegetative corridors. (1)(i) If you 
mine through a perennial or intermittent stream, you must establish a 
vegetative corridor at least 100 feet wide along each bank of the 
reconstructed stream channel. The corridor must be consistent with 
natural vegetation patterns.
    (ii) You must establish a vegetative corridor on any land that you 
disturb within 100 feet of a perennial or intermittent stream. The 
corridor must be consistent with natural vegetation patterns.
    (iii) If you divert a perennial or intermittent stream, you must 
establish a vegetative corridor at least 100 feet wide along each bank 
of the stream-channel diversion, with the exception of temporary 
diversions that will be in place less than 3 years. The corridor must 
be consistent with natural vegetation patterns.
    (iv) The 100-foot distance mentioned in paragraphs (d)(1)(i) 
through (iii) of this section must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark.
    (2) When planting the streamside vegetative corridors required by 
paragraph (d)(1) of this section, you must--
    (i) Use appropriate native species adapted to the area, unless an 
agency responsible for implementing section 404 of the Clean Water Act, 
33 U.S.C. 1344, requires the use of non-native species.
    (ii) Ensure that the species planted are consistent with the 
revegetation plan approved in the permit.
    (iii) Include appropriate native hydrophytic vegetation, vegetation 
typical of floodplains, or hydrophilic vegetation characteristic of 
riparian areas and wetlands to the extent that the corridor contains 
suitable habitat for those species and the stream and the geomorphology 
of the area are capable of supporting vegetation of that nature.
    (iv) Use native trees and shrubs when planting areas within the 
streamside corridor that were forested at the time of application or 
that would revert to forest under conditions of natural succession.
    (3) Paragraphs (d)(1) and (2) of this section do not require 
planting of hydrophytic or hydrophilic species within those portions of 
streamside corridors where the stream, soils, or climate are incapable 
of providing the moisture or other growing conditions needed to support 
and sustain hydrophytic or hydrophilic species. In those situations, 
you must plant the corridor with appropriate native species that are 
consistent with the baseline information concerning natural

[[Page 93403]]

streamside vegetation included in the permit application under Sec.  
779.19 of this chapter, unless otherwise directed by an agency 
responsible for implementing section 404 of the Clean Water Act, 33 
U.S.C. 1344.
    (4) Paragraphs (d)(1) through (3) of this section do not apply to--
    (i) Prime farmland historically used for cropland; or
    (ii) Situations in which establishment of a streamside vegetative 
corridor comprised of native species would be incompatible with an 
approved postmining land use that is implemented before final bond 
release under Sec. Sec.  800.40 through 800.43 of this chapter.
    (e) Restoration of form. If you mine through or permanently divert 
a perennial or intermittent stream, you must demonstrate successful 
restoration or reconstruction of the form of the stream channel in 
accordance with the design approved in the permit before you qualify 
for Phase I bond release under Sec.  800.42(b)(1) of this chapter.
    (f) Restoration of hydrologic function. If you mine through or 
permanently divert a perennial or intermittent stream, you must 
demonstrate restoration of the hydrologic function of the reconstructed 
stream segment before you qualify for Phase II bond release under Sec.  
800.42(b)(2) of this chapter. Restoration of the hydrologic function 
includes, but is not limited to, restoration of the flow regime, except 
as otherwise approved in the permit under Sec.  780.28(e)(2) of this 
chapter.
    (g) Restoration of ecological function. If you mine through or 
permanently divert a perennial or intermittent stream, the 
reconstructed stream or stream-channel diversion must meet the criteria 
approved in the permit for determining restoration of ecological 
function, as established by the regulatory authority under Sec.  
780.28(g) of this chapter, before you qualify for final bond release 
under Sec. Sec.  800.40 through 800.43 of this chapter.
    (h) Prohibition on placement of siltation structures in perennial 
or intermittent streams. (1)(i) Except as provided in paragraph (h)(2) 
of this section, you may not construct a siltation structure in a 
perennial or intermittent stream or use perennial or intermittent 
streams as waste treatment systems to convey surface runoff from the 
disturbed area to a sedimentation pond.
    (ii) Paragraph (h)(1)(i) of this section does not prohibit the 
construction of a siltation structure in a stream channel immediately 
downstream of a stream segment that is mined through.
    (2) If approved in the permit, the prohibition in paragraph (h)(1) 
of this section will not apply to excess spoil fills, coal mine waste 
refuse piles, or coal mine waste impounding structures in steep-slope 
areas when you demonstrate, and the regulatory authority finds in 
writing, that use of a perennial or intermittent stream segment as a 
waste treatment system for sediment control or construction of a 
sedimentation pond or other siltation structure in a perennial or an 
intermittent stream would have less overall adverse impact on fish, 
wildlife, and related environmental values than construction of 
diversions and sedimentation ponds or other siltation structures on 
slopes above the stream.
    (3) When the circumstances described in paragraph (h)(2) of this 
section exist, the following requirements apply:
    (i) You must minimize the length of stream used as a waste 
treatment system to the extent possible and, when practicable, maintain 
an undisturbed buffer along that stream segment in accordance with 
paragraph (b) of this section.
    (ii) You must place the sedimentation pond or other siltation 
structure as close to the toe of the excess spoil fill, coal mine waste 
refuse pile, or coal mine waste impounding structure as possible.
    (iii) Following the completion of construction and revegetation of 
the fill or coal mine waste structure, you must--
    (A) Remove and properly dispose of accumulated sediment in the 
siltation structure and any stream segment between the inlet of the 
siltation structure and the toe of the excess spoil fill or coal mine 
waste structure;
    (B) Remove the sedimentation pond or other siltation structure; and
    (C) Restore the stream segment in accordance with paragraphs (e) 
through (g) of this section.
    (i) Programmatic alternative. Paragraphs (b) through (h) of this 
section will not apply to a state program approved under subchapter T 
of this chapter if that program is amended to expressly prohibit all 
surface mining activities, including the construction of stream-channel 
diversions, that would result in more than a de minimis disturbance of 
land in or within 100 feet of a perennial or intermittent stream.


Sec.  816.59  How must I maximize coal recovery?

    You must conduct surface mining activities so as to maximize the 
utilization and conservation of the coal, while using 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.


Sec.  816.61  Use of explosives: General requirements.

    (a) Compliance with other laws and regulations. You must comply 
with all applicable state and federal laws and regulations governing 
the use of explosives.
    (b) Compliance with blasting schedule. Blasts that use more than 5 
pounds of explosive or blasting agent must be conducted according to 
the schedule required by Sec.  816.64 of this part.
    (c) Requirements for blasters. (1) No later than 12 months after 
the blaster certification program for a state required by part 850 of 
this chapter has been approved under the procedures of subchapter C of 
this chapter, all blasting operations in that state must be conducted 
under the direction of a certified blaster. Before that time, all 
blasting operations in that state must be conducted by competent, 
experienced persons who understand the hazards involved.
    (2) Certificates of blaster certification must be carried by 
blasters or be on file at the permit area during blasting operations.
    (3) A blaster and at least one other person shall be present at the 
firing of a blast.
    (4) Any blaster who is responsible for conducting blasting 
operations at a blasting site must:
    (i) Be familiar with the blasting plan and site-specific 
performance standards; and
    (ii) Give direction and on-the-job training to persons who are not 
certified and who are assigned to the blasting crew or who assist in 
the use of explosives.
    (d) Blast design. (1) You must submit an anticipated blast design 
if blasting operations will be conducted within--
    (i) 1,000 feet of any building used as a dwelling, public building, 
school, church, or community or institutional building outside the 
permit area; or
    (ii) 500 feet of an active or abandoned underground mine.
    (2) You must submit the blast design required by paragraph (d)(1) 
of this section either as part of the permit application or, if 
approved by the regulatory authority, at a later date before blasting 
begins. Regulatory authority approval of the blast design is not 
required, but, as provided in paragraph (d)(5) of this section, the 
regulatory authority may require changes to the design.
    (3) The blast design must contain--

[[Page 93404]]

    (i) Sketches of the drill patterns, delay periods, and decking.
    (ii) The type and amount of explosives to be used.
    (iii) Critical dimensions.
    (iv) The location and general description of structures to be 
protected.
    (v) A discussion of design factors to be used to protect the public 
and meet the applicable airblast, flyrock, and ground-vibration 
standards in Sec.  816.67 of this part.
    (4) A certified blaster must prepare and sign the blast design.
    (5) The regulatory authority may require changes to the design 
submitted.


Sec.  816.62  Use of explosives: Preblasting survey.

    (a) At least 30 days before initiation of blasting, you must 
notify, in writing, all residents or owners of dwellings or other 
structures located within \1/2\ mile of the permit area how to request 
a preblasting survey.
    (b)(1) A resident or owner of a dwelling or structure within \1/2\ 
mile of any part of the permit area may request a preblasting survey. 
This request must be made, in writing, directly to you or to the 
regulatory authority. If the request is made to the regulatory 
authority, the regulatory authority will promptly notify you.
    (2) You must promptly conduct a preblasting survey of the dwelling 
or structure and promptly prepare a written report of the survey.
    (3) You must conduct an updated survey of any subsequent additions, 
modifications, or renovations to the dwelling or structure, if 
requested by the resident or owner.
    (c) You must determine the condition of the dwelling or structure 
and document any preblasting damage and other physical factors that 
could reasonably be affected by the blasting. Structures such as 
pipelines, cables, transmission lines, and cisterns, wells, and other 
water systems warrant special attention; however, the assessment of 
these structures may be limited to surface conditions and other readily 
available data.
    (d)(1) The person who conducted the survey must sign the written 
report of the survey.
    (2) You must promptly provide copies of the report to the 
regulatory authority and to the person requesting the survey.
    (3) If the person requesting the survey disagrees with the contents 
or recommendations of the survey, he or she may submit a detailed 
description of the specific areas of disagreement to both you and the 
regulatory authority.
    (e) You must complete any surveys requested more than 10 days 
before the planned initiation of blasting before the initiation of 
blasting.


Sec.  816.64  Use of explosives: Blasting schedule.

    (a) General requirements. (1) You must conduct blasting operations 
at times approved by the regulatory authority and announced in the 
blasting schedule. The regulatory authority may limit the area covered, 
the timing, and the sequence of blasting if those limitations are 
necessary and reasonable to protect public health and safety or 
welfare.
    (2) You must conduct all blasting between sunrise and sunset, 
unless the regulatory authority approves night-time blasting based upon 
a showing that the public will be protected from adverse noise and 
other impacts. The regulatory authority may specify more restrictive 
time periods for blasting.
    (3)(i) You may conduct unscheduled blasts only where public or 
operator health and safety so require and for emergency blasting 
actions.
    (ii) When you conduct an unscheduled blast, you must use audible 
signals to notify residents within \1/2\ mile of the blasting site.
    (iii) You must document the reason for the unscheduled blast in 
accordance with Sec.  816.68(c)(16) of this part.
    (b) Blasting schedule publication and distribution. (1) You must 
publish the blasting schedule in a newspaper of general circulation in 
the locality of the blasting site at least 10 days, but not more than 
30 days, before beginning a blasting program.
    (2) You must distribute copies of the schedule to local governments 
and public utilities and to each local residence within \1/2\ mile of 
the proposed blasting site described in the schedule.
    (3) You must republish and redistribute the schedule at least every 
12 months and revise and republish the schedule at least 10 days, but 
not more than 30 days, before blasting whenever the area covered by the 
schedule changes or actual times for blasting significantly differ from 
the prior announcement.
    (c) Blasting schedule contents. The blasting schedule must contain, 
at a minimum, the--
    (1) Name, address, and telephone number of the operator;
    (2) Identification of the specific areas in which blasting will 
take place;
    (3) Dates and times when explosives are to be detonated;
    (4) Methods to be used to control access to the blasting area; and
    (5) Type and patterns of audible blast warning and all-clear 
signals to be used before and after blasting.


Sec.  816.66  Use of explosives: Blasting signs, warnings, and access 
control.

    (a) Blasting signs. Blasting signs must meet the specifications of 
Sec.  816.11 of this part.
    (1) You must place conspicuous signs reading ``Blasting Area'' 
along the edge of any blasting area that comes within 100 feet of any 
public road right-of-way and at the point where any other road provides 
access to the blasting area.
    (2) You must place conspicuous signs reading ``Warning! Explosives 
in Use'' at all entrances to the permit area from public roads or 
highways. The signs must clearly list and describe the meaning of the 
audible blast warning and all-clear signals that are in use and explain 
the marking of blasting areas and charged holes awaiting firing within 
the permit area.
    (b) Warnings. You must give blast warning and all-clear signals of 
different character or pattern that are audible within a range of \1/2\ 
mile from the point of the blast. You must notify each person within 
the permit area and each person who resides or regularly works within 
\1/2\ mile of the permit area of the meaning of the signals in the 
blasting schedule.
    (c) Access control. You must control access within the blasting 
area to prevent presence of livestock or unauthorized persons during 
blasting and until your authorized representative has reasonably 
determined that--
    (1) No unusual hazards, such as imminent slides or undetonated 
charges, exist; and
    (2) Access to and travel within the blasting area can be safely 
resumed.


Sec.  816.67  Use of explosives: Control of adverse effects.

    (a) General requirements. You must conduct blasting in a manner 
that prevents--
    (1) Injury to persons;
    (2) Damage to public or private property outside the permit area;
    (3) Adverse impacts on any underground mine; or
    (4) Change in the course, channel, or availability of surface water 
or groundwater outside the permit area.
    (b) Airblast.--(1) Limits. (i) Airblast must not exceed the maximum 
limits listed below at the location of any dwelling, public building, 
school, church, or community or institutional building outside the 
permit area, except as provided in paragraph (e) of this section.

[[Page 93405]]



------------------------------------------------------------------------
   Lower frequency limit of measuring
 system in Hertz (Hz), plus or minus 3    Maximum level in decibels (dB)
                decibels
------------------------------------------------------------------------
0.1 Hz or lower--flat response \1\.....  134 peak.
2 Hz or lower--flat response...........  133 peak.
6 Hz or lower--flat response...........  129 peak.
C-weighted--slow response \1\..........  105 peak dBC.
------------------------------------------------------------------------
\1\ Only when approved by the regulatory authority.

    (ii) If necessary to prevent damage, the regulatory authority must 
specify lower maximum allowable airblast levels than those of paragraph 
(b)(1)(i) of this section for use in the vicinity of a specific 
blasting operation.
    (2) Monitoring. (i) You must conduct periodic monitoring to ensure 
compliance with the airblast standards. The regulatory authority may 
require airblast measurement of any or all blasts and may specify the 
locations at which measurements are taken.
    (ii) The measuring systems must have an upper-end flat-frequency 
response of at least 200 Hz.
    (c) Flyrock. Flyrock travelling in the air or along the ground must 
not be cast from the blasting site--
    (1) More than one-half the distance to the nearest dwelling or 
other occupied structure;
    (2) Beyond the area of control required under Sec.  816.66(c) of 
this part; or
    (3) Beyond the permit boundary.
    (d) Ground vibration.--(1) General requirements. (i) In all 
blasting operations, except as otherwise authorized in paragraph (e) of 
this section, the maximum ground vibration must not exceed the values 
approved in the blasting plan required under Sec.  780.15 of this 
chapter.
    (ii) The maximum ground vibration for protected structures listed 
in paragraph (d)(2)(i) of this section must be established in 
accordance with either the maximum peak-particle-velocity limits of 
paragraph (d)(2) of this section, the scaled-distance equation of 
paragraph (d)(3) of this section, the blasting-level chart of paragraph 
(d)(4) of this section, or by the regulatory authority under paragraph 
(d)(5) of this section.
    (iii) All structures in the vicinity of the blasting area not 
listed in paragraph (d)(2)(i) of this section, such as water towers, 
pipelines and other utilities, tunnels, dams, impoundments, and 
underground mines, must be protected from damage by establishment of a 
maximum allowable limit on the ground vibration, submitted by the 
operator in the blasting plan and approved by the regulatory authority.
    (2) Maximum peak particle velocity. (i) The maximum ground 
vibration must not exceed the following limits at the location of any 
dwelling, public building, school, church, or community or 
institutional building outside the permit area:

------------------------------------------------------------------------
                                    Maximum allowable   Scaled-distance
                                      peak particle       factor to be
  Distance (D), from the blasting      velocity for     applied without
           site, in feet            ground vibration,       seismic
                                     in inches/second   monitoring (Ds)
                                           \1\                \2\
------------------------------------------------------------------------
0 to 300..........................               1.25                 50
301 to 5,000......................               1.00                 55
5,001 and beyond..................               0.75                 65
------------------------------------------------------------------------
\1\ Ground vibration must be measured as the particle velocity. Particle
  velocity must be recorded in three mutually perpendicular directions.
  The maximum allowable peak particle velocity applies to each of the
  three measurements.
\2\ Applicable to the scaled-distance equation of paragraph (d)(3)(i) of
  this section.

    (ii) You must provide a seismographic record for each blast.
    (3) Scaled-distance equation. (i) You may use the scaled-distance 
equation, W=(D/Ds)\2\, to determine the allowable charge weight of 
explosives to be detonated in any 8-millisecond period, without seismic 
monitoring, where W=the maximum weight of explosives, in pounds; D=the 
distance, in feet, from the blasting site to the nearest protected 
structure; and Ds=the scaled-distance factor. The regulatory authority 
may initially approve the scaled-distance equation using the values for 
the scaled-distance factor listed in paragraph (d)(2)(i) of this 
section.
    (ii) The regulatory authority may authorize development of a 
modified scaled-distance factor upon receipt of a written request by 
the operator, supported by seismographic records of blasting at the 
minesite. The modified scale-distance factor must be determined such 
that the particle velocity of the predicted ground vibration will not 
exceed the prescribed maximum allowable peak particle velocity of 
paragraph (d)(2)(i) of this section at a 95-percent confidence level.
    (4) Blasting-level chart. (i) You may use the ground-vibration 
limits in Figure 1 to determine the maximum allowable ground vibration.

[[Page 93406]]

[GRAPHIC] [TIFF OMITTED] TR20DE16.000

    (ii) If the Figure 1 limits are used, you must provide a 
seismographic record including both particle velocity and vibration-
frequency levels for each blast. The regulatory authority must approve 
the method for the analysis of the predominant frequency contained in 
the blasting records before application of this alternative blasting 
criterion.
    (5) The regulatory authority must reduce the maximum allowable 
ground vibration beyond the limits otherwise provided by this section, 
if determined necessary to provide damage protection.
    (6) The regulatory authority may require that you conduct seismic 
monitoring of any or all blasts or may specify the location at which 
the measurements are taken and the degree of detail necessary in the 
measurement.
    (e) The maximum airblast and ground-vibration standards of 
paragraphs (b) and (d) of this section do not apply at the following 
locations:
    (1) At structures owned by the permittee and not leased to another 
person.
    (2) At structures owned by the permittee and leased to another 
person, if a written waiver by the lessee is submitted to the 
regulatory authority before blasting.


Sec.  816.68  Use of explosives: Records of blasting operations

    (a) You must retain a record of all blasts for at least 3 years.
    (b) Upon request, you must make copies of these records available 
to the regulatory authority and to the public for inspection.
    (c) The records must contain the following data:
    (1) Name of the operator conducting the blast.
    (2) Location, date, and time of the blast.
    (3) Name, signature, and certification number of the blaster 
conducting the blast.
    (4) Identification, direction, and distance, in feet, from the 
nearest blast hole to the nearest dwelling, public building, school, 
church, community or institutional building outside the permit area, 
except those described in Sec.  816.67(e) of this part.
    (5) Weather conditions, including those which may cause possible 
adverse blasting effects.
    (6) Type of material blasted.
    (7) Sketches of the blast pattern, including number of holes, 
burden, spacing, decks, and delay pattern.
    (8) Diameter and depth of holes.
    (9) Types of explosives used.
    (10) Total weight of explosives used per hole.
    (11) The maximum weight of explosives detonated in an 8-millisecond 
period.
    (12) Initiation system.
    (13) Type and length of stemming.
    (14) Mats or other protections used.
    (15) Seismographic and airblast records, if required, which must 
include--
    (i) Type of instrument, sensitivity, and calibration signal or 
certification of annual calibration;
    (ii) Exact location of instrument and the date, time, and distance 
from the blast;
    (iii) Name of the person and firm taking the reading;
    (iv) Name of the person and firm analyzing the seismographic 
record; and
    (v) The vibration and/or airblast level recorded.
    (16) Reasons and conditions for each unscheduled blast.


Sec.  816.71  How must I dispose of excess spoil?

    (a) General requirements. You, the permittee or operator, must 
mechanically transport and place excess spoil in designated disposal 
areas, including approved valley fills and other types of approved 
fills, within the permit area in a controlled manner in compliance with 
the requirements of this section. In general, you must place excess 
spoil in a manner that will--

[[Page 93407]]

    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on groundwater and surface water, including 
aquatic life, within the permit and adjacent areas.
    (2) Ensure mass stability and prevent mass movement during and 
after construction.
    (3) Ensure that the final surface configuration of the fill is 
suitable for revegetation and the approved postmining land use or uses 
and is compatible with the natural drainage pattern and surroundings.
    (4) Minimize disturbances to, and adverse impacts on, fish, 
wildlife, and related environmental values to the extent possible, 
using the best technology currently available.
    (5) Ensure that the fill will not change the size or frequency of 
peak flows from precipitation events or thaws in a way that would 
result in an increase in flooding when compared with the impacts of 
premining peak flows.
    (6) Ensure that the fill will not cause or contribute to a 
violation of applicable state or tribal groundwater standards or 
preclude any premining use of groundwater.
    (7) Ensure that the fill will not cause or contribute to a 
violation of applicable state or tribal water quality standards for 
surface water located downstream of the toe of the fill, including, but 
not limited to, water quality standards established under the authority 
of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    (b) Stability requirements--(1) Static safety factor. You must 
design and construct the fill 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.
    (2) Special requirement for steep-slope conditions. Where 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 
must construct bench cuts (excavations into stable bedrock) or rock-toe 
buttresses to ensure fill stability.
    (c) Compliance with permit. You must construct the fill in 
accordance with the design and plans approved in the permit in 
accordance with Sec.  780.35 of this chapter.
    (d) Requirements for handling of organic matter and soil materials. 
You must remove all vegetation, other organic matter, and soil 
materials from the disposal area prior to placement of the excess 
spoil. You must store, redistribute, or otherwise use those materials 
in accordance with Sec.  816.22 of this part. You may use soil 
substitutes and supplements if approved in the permit in accordance 
with Sec.  780.12(e) of this chapter.
    (e) Surface runoff control requirements. (1) You must direct 
surface runoff from areas above the fill and runoff from the surface of 
the fill into stabilized channels designed to--
    (i) Meet the requirements of Sec.  816.43 of this part; and
    (ii) Safely pass the runoff from the 100-year, 6-hour precipitation 
event. You must use the appropriate regional Natural Resources 
Conservation Service synthetic storm distribution to determine the peak 
flow from surface runoff from this event.
    (2) You must grade the top surface of a completed fill such that 
the final slope after settlement will be toward properly designed 
drainage channels. You may not direct uncontrolled surface runoff over 
the outslope of the fill.
    (f) Control of water within the footprint of the fill.--(1) General 
requirements. If the disposal area contains springs, natural or manmade 
water courses, or wet weather seeps, you must design and construct 
underdrains and temporary diversions as necessary to control erosion, 
prevent water infiltration into the fill, and ensure stability.
    (2) Temporary diversions. Temporary diversions must comply with the 
requirements of Sec.  816.43 of this part.
    (3) Underdrains. (i) You must construct underdrains that are 
comprised of hard rock that is resistant to weathering.
    (ii) You must design and construct underdrains using current, 
prudent engineering practices and any design criteria established by 
the regulatory authority.
    (iii) In constructing rock underdrains, you may use only hard rock 
that is resistant to weathering, such as well-cemented sandstone and 
massive limestone, and that is not acid-forming or toxic-forming. The 
underdrain must be free of soil and fine-grained, clastic rocks such as 
siltstone, shale, mudstone, and claystone. All rock used to construct 
underdrains must meet the criteria in the following table:

----------------------------------------------------------------------------------------------------------------
               Test                     ASTM standard         AASHTO standard           Acceptable results
----------------------------------------------------------------------------------------------------------------
Los Angeles Abrasion..............  C 131 or C 535.......  T 96.................  Loss of no more than 50
                                                                                   percent of test sample by
                                                                                   weight.
Sulfate Soundness.................  C 88 or C 5240.......  T 104................  Sodium sulfate test: Loss of
                                                                                   no more than 12 percent of
                                                                                   test sample by weight.
                                                                                  Magnesium sulfate test: Loss
                                                                                   of no more than 18 percent of
                                                                                   test sample by weight.
----------------------------------------------------------------------------------------------------------------

    (iv) The underdrain system must be designed and constructed to 
carry the maximum anticipated infiltration of water due to 
precipitation, snowmelt, and water from seeps and springs in the 
foundation of the disposal area away from the excess spoil fill.
    (v) To provide a safety factor against future changes in local 
surface-water and groundwater hydrology, perforated pipe may be 
embedded within the rock underdrain to enhance the underdrain capacity 
to carry water in excess of the anticipated maximum infiltration away 
from the excess spoil fill. The pipe must be manufactured of materials 
that are not susceptible to corrosion and must be demonstrated to be 
suitable for the deep burial conditions commonly associated with excess 
spoil fill underdrains.
    (vi) The underdrain system must be protected from material piping, 
clogging, and contamination by an adequate filter system designed and 
constructed using current, prudent engineering practices to ensure the 
long-term functioning of the underdrain system.
    (g) Placement of excess spoil. (1) Using mechanized equipment, you 
must transport and place excess spoil in a controlled manner in 
horizontal lifts not exceeding 4 feet in thickness; concurrently 
compacted as necessary to ensure mass stability and to prevent mass 
movement during and after construction; and graded so that surface and 
subsurface drainage is compatible with the natural surroundings.
    (2) You may not use any excess spoil transport and placement 
technique that involves end-dumping, wing-dumping, cast-blasting, 
gravity placement, or casting spoil downslope.
    (3) Acid-forming, toxic-forming, and combustible materials. (i) You 
must handle acid-forming and toxic-forming materials in accordance with 
Sec.  816.38 of this part and in a manner that will minimize adverse 
effects on plant

[[Page 93408]]

growth and the approved postmining land use.
    (ii) You must cover combustible materials with noncombustible 
materials in a manner that will prevent sustained combustion and 
minimize adverse effects on plant growth and the approved postmining 
land use.
    (h) Final configuration. (1) The final configuration of the fill 
must be suitable for the approved postmining land use, compatible with 
the natural drainage pattern and the surrounding terrain, and, to the 
extent practicable, consistent with natural landforms.
    (2) You may construct terraces on the outslope of the fill if 
required for stability, to control erosion, to conserve soil moisture, 
or to facilitate the approved postmining land use. The grade of the 
outslope between terrace benches may not be steeper than 2h: 1v (50 
percent).
    (3)(i) You must configure the top surface of the fill to create a 
topography that includes ridgelines and valleys with varied hillslope 
configurations when practicable, compatible with stability and 
postmining land use considerations, and generally consistent with the 
topography of the area before any mining.
    (ii) The final surface elevation of the fill may exceed the 
elevation of the surrounding terrain when necessary to minimize 
placement of excess spoil in perennial and intermittent streams, 
provided the final configuration complies with the requirements of 
paragraphs (a)(3) and (h)(1) of this section.
    (iii) The geomorphic reclamation requirements of paragraph 
(h)(3)(i) of this section do not apply in situations in which they 
would result in burial of a greater length of perennial or intermittent 
streams than traditional fill design and construction techniques.
    (i) Impoundments and depressions. No permanent impoundments are 
allowed on the completed fill. You may construct small depressions if 
they--
    (1) Are needed to retain moisture, minimize erosion, create or 
enhance wildlife habitat, or assist revegetation;
    (2) Are not incompatible with the stability of the fill;
    (3) Are consistent with the hydrologic reclamation plan approved in 
the permit in accordance with Sec.  780.22 of this chapter;
    (4) Will not result in elevated levels of parameters of concern in 
discharges from the fill; and
    (5) Are approved by the regulatory authority.
    (j) Surface area stabilization. You must provide slope protection 
to minimize surface erosion at the site. You must revegetate all 
disturbed areas, including diversion channels that are not riprapped or 
otherwise protected, upon completion of construction.
    (k) Inspections and examinations. (1) A qualified registered 
professional engineer, or other qualified professional specialist under 
the direction of the professional engineer, must inspect the fill at 
least quarterly during construction, with additional complete 
inspections conducted during critical construction periods. The 
professional engineer or specialist must be experienced in the 
construction of earth and rock fills. Critical construction periods 
include, at a minimum--
    (i) Foundation preparation, including the removal of all organic 
matter and soil materials.
    (ii) Placement of underdrains and protective filter systems.
    (iii) Installation of final surface drainage systems.
    (2) An engineer or specialist meeting the qualifications of 
paragraph (k)(1) of this section also must--
    (i) Conduct daily examinations during placement and compaction of 
fill materials or, when more than one lift is completed per day, upon 
completion of each 4-foot lift. As an alternative, the engineer or 
specialist may conduct examinations on a weekly basis if a mine 
representative takes photographs on a daily basis to document the lift 
thickness and elevation with visual reference features. The certified 
report required by paragraph (k)(3) of this section must include this 
photographic documentation.
    (ii) Maintain a log recording the examinations conducted under 
paragraph (k)(2)(i) of this section for each 4-foot lift in each fill. 
The log must include a description of the specific work locations, 
excess spoil placement methods, compaction adequacy, lift thickness, 
suitability of fill material, special handling of acid-forming and 
toxic-forming materials, deviations from the approved permit, and 
remedial measures taken.
    (3)(i) The qualified registered professional engineer to which 
paragraph (k)(1) of this section refers must provide a certified report 
to the regulatory authority on a quarterly basis.
    (ii) In each report prepared under paragraph (k)(3)(i) of this 
section, the engineer must certify that the fill has been constructed 
and maintained as designed and in accordance with the approved plan and 
this chapter.
    (iii) The report prepared under paragraph (k)(3)(i) of this section 
must identify and discuss any evidence of instability, structural 
weakness, or other hazardous conditions. If one of more of those 
conditions exists, you must submit an application for a permit revision 
that includes appropriate remedial design specifications.
    (iv) The report prepared under paragraph (k)(3)(i) of this section 
must contain--
    (A) A review and summary of all complete inspections conducted 
during the quarter under paragraph (k)(1) of this section.
    (B) A review and summary of all examinations conducted during the 
quarter under paragraph (k)(2) of this section, including the logs 
maintained under paragraph (k)(2)(ii) of this section.
    (C) The photographs taken under paragraph (k)(2)(i) of this 
section.
    (v) Each certified report prepared under paragraph (k)(3) of this 
section for a quarter in which construction activities include 
placement of underdrains and protective filter systems must include 
color photographs taken during and after construction, but before 
underdrains are covered with excess spoil. If the underdrain system is 
constructed in phases, each phase must be certified separately. The 
photographs must be taken in adequate size and number with enough 
terrain or other physical features of the site shown to provide a 
relative scale to the photographs and to specifically and clearly 
identify the site.
    (4) You must retain a copy of each certified report prepared under 
paragraph (k)(3) of this section at or near the mine site.
    (l) Coal mine waste. You may dispose of coal mine waste in excess 
spoil fills only if approved by the regulatory authority and only if--
    (1) You demonstrate, and the regulatory authority finds in writing, 
that the disposal of coal mine waste in the excess spoil fill will 
not--
    (i) Cause or contribute to a violation of applicable state or 
tribal water quality standards or effluent limitations, including, but 
not limited to, water quality standards established under the authority 
of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), and 
effluent limitations established in any National Pollutant Discharge 
Elimination System permit issued for the operation under section 402 of 
the Clean Water Act, 33 U.S.C. 1342, or its state or tribal 
counterpart;
    (ii) Cause or contribute to a violation of applicable state or 
tribal water quality standards for groundwater; or
    (iii) Result in material damage to the hydrologic balance outside 
the permit area.
    (2) The waste is placed in accordance with Sec. Sec.  816.81 and 
816.83 of this part.

[[Page 93409]]

    (3) The waste is nontoxic-forming, nonacid-forming, and non-
combustible.
    (4) The waste is of the proper characteristics to be consistent 
with the design stability of the fill.
    (m) Underground disposal. You may dispose of excess spoil in 
underground mine workings only in accordance with a plan approved by 
the regulatory authority and the Mine Safety and Health Administration 
under Sec.  784.26 of this chapter.


Sec.  816.72  [Reserved]


Sec.  816.73  [Reserved]


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

    (a) General requirements. The regulatory authority may approve the 
disposal of excess spoil through placement on a preexisting bench on a 
previously mined area or a bond forfeiture site if--
    (1) The proposed permit area includes the portion of the 
preexisting bench on which the spoil will be placed;
    (2) The proposed operation will comply with the applicable 
requirements of Sec.  816.102 of this part; and
    (3) The requirements of this section are met.
    (b) Requirements for removal and disposition of vegetation, other 
organic matter, and soil materials. You must remove all vegetation, 
other organic matter, topsoil, and subsoil from the disposal area prior 
to placement of the excess spoil and store, redistribute, or otherwise 
use those materials in accordance with Sec.  816.22 of this part. You 
may use soil substitutes and supplements if approved in the permit in 
accordance with Sec.  780.12(e) of this chapter.
    (c)(1) The fill must be designed and constructed using current, 
prudent engineering practices.
    (2) The design must be certified by a registered professional 
engineer.
    (3) If the disposal area contains springs, natural or manmade water 
courses, or wet weather seeps, the fill design must include underdrains 
and temporary diversions as necessary to control erosion, prevent water 
infiltration into the fill, and ensure stability. Underdrains must 
comply with the requirements of Sec.  816.71(f)(3) of this part.
    (d)(1) The spoil must be placed on the solid portion of the bench 
in a controlled manner and concurrently compacted as necessary to 
attain a long-term static safety factor of 1.3 for all portions of the 
fill.
    (2) Any spoil deposited on any fill portion of the bench must be 
treated as an excess spoil fill under Sec.  816.71 of this part.
    (e) You must grade the spoil placed on the preexisting bench to--
    (1) Achieve a stable slope that does not exceed the angle of 
repose.
    (2) Eliminate the preexisting highwall to the maximum extent 
technically practical, using all reasonably available spoil, as that 
term is defined in Sec.  701.5 of this chapter.
    (3) Minimize erosion and water pollution both on and off the site.
    (f) All disturbed areas, including diversion channels that are not 
riprapped or otherwise protected, must be revegetated upon completion 
of construction.
    (g) You may not construct permanent impoundments on preexisting 
benches on which excess spoil is placed under this section.
    (h) The final configuration of the fill on the preexisting bench 
must--
    (1) Be compatible with natural drainage patterns and the 
surrounding area.
    (2) Support the approved postmining land use.


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

    No surface mining activities may be conducted closer than 500 feet 
to any point of either an active or abandoned underground mine, except 
to the extent that--
    (a) The activities result in improved resource recovery, abatement 
of water pollution, or elimination of hazards to the health and safety 
of the public; and
    (b) The nature, timing, and sequence of the activities that propose 
to mine closer than 500 feet to an active underground mine are jointly 
approved by the regulatory authority, the Mine Safety and Health 
Administration, and the state agency, if any, responsible for the 
safety of underground mine workers.


Sec.  816.81  How must I dispose of coal mine waste?

    (a) General requirements. If you, the permittee, intend to dispose 
of coal mine waste in an area other than the mine workings or 
excavations, you must place the waste in new or existing disposal areas 
within a permit area in accordance with this section and, as 
applicable, Sec. Sec.  816.83 and 816.84 of this part.
    (b) Basic performance standards. You must haul or convey and place 
the coal mine waste in a controlled manner to--
    (1) Minimize the adverse effects of leachate and surface-water 
runoff on groundwater and surface water, including aquatic life, within 
the permit and adjacent areas to the extent possible, using the best 
technology currently available.
    (2) Ensure mass stability and prevent mass movement during and 
after construction.
    (3) Ensure that the final disposal facility is suitable for 
revegetation, compatible with the natural surroundings, and consistent 
with the approved postmining land use.
    (4) Not create a public hazard.
    (5) Prevent combustion.
    (6) Ensure that the disposal facility will not change the size or 
frequency of peak flows from precipitation events or thaws in a way 
that would result in an increase in flooding when compared with the 
impacts of premining peak flows.
    (7) Ensure that the disposal facility will not cause or contribute 
to a violation of applicable state or tribal groundwater standards or 
preclude any premining use of groundwater.
    (8) Ensure that the disposal facility will not cause or contribute 
to a violation of applicable state or tribal water quality standards 
for surface water located downstream of the toe of the fill, including, 
but not limited to, water quality standards established under the 
authority of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    (9) Ensure that the disposal facility will not discharge acid or 
toxic mine drainage.
    (c) Coal mine waste from outside the permit area. You may dispose 
of coal mine waste materials from activities located outside the permit 
area within the permit area only if approved by the regulatory 
authority. Approval must be based upon a showing that disposal will be 
in accordance with the standards of this section.
    (d) Design and construction requirements. (1)(i) You must design 
and construct coal mine waste disposal facilities using current, 
prudent engineering practices and any design or construction criteria 
established by the regulatory authority.
    (ii) A qualified registered professional engineer, experienced in 
the design and construction of similar earth and waste structures, must 
certify the design of the disposal facility. The engineer must 
specifically certify that any existing and planned underground mine 
workings in the vicinity of the disposal facility will not adversely 
impact the stability of the structure.
    (iii) You must construct the disposal facility in accordance with 
the design and plans submitted under Sec.  780.25 of this chapter and 
approved in the permit.

[[Page 93410]]

A qualified registered professional engineer experienced in the design 
and construction of similar earth and waste structures must certify 
that the facility has been constructed in accordance with the 
requirements of this paragraph.
    (2) You must design and construct the disposal facility to attain a 
minimum long-term static safety factor of 1.5. The foundation and 
abutments must be stable under all conditions of construction.
    (e) Foundation investigations. You must perform sufficient 
foundation and abutment investigations, as well as any necessary 
laboratory testing of foundation material, to determine the design 
requirements for foundation stability and control of underseepage. The 
analyses of the foundation conditions must take into consideration the 
effect of any underground mine workings located in the permit and 
adjacent areas upon the stability of the disposal facility.
    (f) Soil handling requirements. You must remove all vegetation, 
other organic matter, and soil materials from the disposal area prior 
to placement of the coal mine waste. You must store, redistribute, or 
otherwise use those materials in accordance with Sec.  816.22 of this 
part. You may use soil substitutes and supplements if approved in the 
permit in accordance with Sec.  780.12(e) of this chapter.
    (g) Emergency procedures. (1) If any examination or inspection 
discloses that a potential hazard exists, you must inform the 
regulatory authority promptly of the finding and of the emergency 
procedures formulated for public protection and remedial action.
    (2) If adequate procedures cannot be formulated or implemented, you 
must notify the regulatory authority immediately. The regulatory 
authority then must notify the appropriate agencies that other 
emergency procedures are required to protect the public.
    (h) Underground disposal. You may dispose of coal mine waste in 
underground mine workings only in accordance with a plan approved by 
the regulatory authority and the Mine Safety and Health Administration 
under Sec.  784.26 of this chapter.


Sec.  816.83  What special requirements apply to coal mine waste refuse 
piles?

    (a) General requirements. Refuse piles must meet the applicable 
requirements of Sec.  816.81 of this part, the additional requirements 
of this section, and the requirements of Sec. Sec.  77.214 and 77.215 
of this title.
    (b) Surface runoff and drainage control. (1) If the disposal area 
contains springs, natural or manmade water courses, or wet weather 
seeps, you must design and construct the refuse pile with diversions 
and underdrains as necessary to control erosion, prevent water 
infiltration into the disposal facility, and ensure stability.
    (2) You may not direct or divert uncontrolled surface runoff over 
the outslope of the refuse pile.
    (3) You must direct runoff from areas above the refuse pile and 
runoff from the surface of the refuse pile into stabilized channels 
designed to meet the requirements of Sec.  816.43 of this part and to 
safely pass the runoff from the 100-year, 6-hour precipitation event. 
You must use the appropriate regional Natural Resources Conservation 
Service synthetic storm distribution to determine the peak flow from 
surface runoff from this event.
    (4) Runoff diverted from undisturbed areas need not be commingled 
with runoff from the surface of the refuse pile.
    (5) Underdrains must comply with the requirements of Sec.  
816.71(f) of this part.
    (c) Surface area stabilization. You must provide slope protection 
to minimize surface erosion at the site. You must revegetate all 
disturbed areas, including diversion channels that are not riprapped or 
otherwise protected, upon completion of construction.
    (d) Final configuration and cover. (1) The final configuration of 
the refuse pile must be suitable for the approved postmining land use. 
Terraces may be constructed on the outslope of the refuse pile if 
required for stability, erosion control, conservation of soil moisture, 
or facilitation of the approved postmining land use. The grade of the 
outslope between terrace benches may not be steeper than 2h:1v (50 
percent).
    (2) No permanent impoundments or depressions are allowed on the 
completed refuse pile.
    (3) Following final grading of the refuse pile, you must cover the 
coal mine waste with a minimum of 4 feet of the best available, 
nontoxic, and noncombustible material in a manner that does not impede 
drainage from the underdrains. The regulatory authority may allow less 
than 4 feet of cover material based on physical and chemical analyses 
showing that the revegetation requirements of Sec. Sec.  816.111 and 
816.116 of this part will be met.
    (e) Inspections. You must comply with the inspection and 
examination requirements of Sec.  816.71(k) of this part.


Sec.  816.84  What special requirements apply to coal mine waste 
impounding structures?

    (a) Impounding structures constructed of coal mine waste or 
intended to impound coal mine waste must meet the requirements of Sec.  
816.81 of this part.
    (b) You may not use coal mine waste to construct impounding 
structures unless you demonstrate, and the regulatory authority finds 
in writing, that the stability of such a structure conforms to the 
requirements of this part and that the use of coal mine waste will not 
have a detrimental effect on downstream water quality or the 
environment as a result of acid drainage or toxic seepage through the 
impounding structure. You must discuss the stability of the structure 
and the prevention and potential impact of acid drainage or toxic 
seepage through the impounding structure in detail in the design plan 
submitted to the regulatory authority in accordance with Sec.  780.25 
of this chapter.
    (c)(1) You must design, construct, and maintain each impounding 
structure constructed of coal mine waste or intended to impound coal 
mine waste in accordance with paragraphs (a) and (c) of Sec.  816.49 of 
this part.
    (2) You may not retain these structures permanently as part of the 
approved postmining land use.
    (3) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste that meets the criteria of Sec.  
77.216(a) of this title must have sufficient spillway capacity to 
safely pass, adequate storage capacity to safely contain, or a 
combination of storage capacity and spillway capacity to safely 
control, the probable maximum precipitation of a 6-hour precipitation 
event or greater event as specified by the regulatory authority.
    (d) You must design spillways and outlet works to provide adequate 
protection against erosion and corrosion. Inlets must be protected 
against blockage.
    (e) You must direct surface runoff from areas above the disposal 
facility and runoff from the surface of the facility that may cause 
instability or erosion of the impounding structure into stabilized 
channels designed and constructed to meet the requirements of Sec.  
816.43 of this part and to safely pass the runoff from a 100-year, 6-
hour precipitation event. You must use the appropriate regional Natural 
Resources Conservation Service synthetic storm distribution to 
determine the peak flow from surface runoff from this event.
    (f) For an impounding structure constructed of or impounding coal 
mine waste, you must remove at least 90 percent of the water stored 
during the design precipitation event within the 10-day period 
following the design precipitation event.

[[Page 93411]]

Sec.  816.87  What special requirements apply to burning and burned 
coal mine waste?

    (a) You must extinguish coal mine waste fires in accordance with a 
plan approved by the regulatory authority and the Mine Safety and 
Health Administration. The plan must contain, at a minimum, provisions 
to ensure that only those persons authorized by the operator, and who 
have an understanding of the procedures to be used, are involved in the 
extinguishing operations.
    (b) You may not remove burning or burned coal mine waste from a 
permitted coal mine waste disposal area without a removal plan approved 
by the regulatory authority. Consideration must be given to potential 
hazards to persons working or living in the vicinity of the structure.


Sec.  816.89  How must I dispose of noncoal mine wastes?

    (a)(1) You must place and store noncoal mine wastes including, but 
not limited to, grease, lubricants, paints, flammable liquids, garbage, 
abandoned mining machinery, lumber, and other combustible materials 
generated during mining activities, in a controlled manner in a 
designated portion of the permit area.
    (2) Placement and storage of noncoal wastes must ensure that 
leachate and surface runoff do not degrade surface water or 
groundwater, that fires are prevented, and that the area remains stable 
and suitable for reclamation and revegetation compatible with the 
natural surroundings.
    (b)(1) Final disposal of noncoal mine wastes must be in a 
designated disposal site within the permit area or in a state-approved 
solid waste disposal area.
    (2) Disposal sites within the permit area must meet the following 
requirements:
    (i) The site must be designed and constructed to ensure that 
leachate and drainage from the noncoal mine waste area does not degrade 
surface water or groundwater.
    (ii) Wastes must be routinely compacted and covered to prevent 
combustion and wind-borne waste.
    (iii) When the disposal of noncoal wastes is completed, the site 
must be covered with a minimum of 2 feet of soil, slopes must be 
stabilized, and the site must be revegetated in accordance with 
Sec. Sec.  816.111 through 816.116 of this part.
    (iv) The disposal site must be operated in accordance with all 
local, state and federal requirements.
    (c) At no time may any noncoal mine waste be deposited in a coal 
mine waste refuse pile or impounding structure, nor may an excavation 
for a noncoal mine waste disposal site be located within 8 feet of any 
coal outcrop or coal storage area.


Sec.  816.95  How must I protect surface areas from wind and water 
erosion?

    (a) You must protect and stabilize all exposed surface areas to 
effectively control erosion and air pollution attendant to erosion.
    (b)(1) You must fill, regrade, or otherwise stabilize rills and 
gullies that form in areas that have been regraded and upon which soil 
or soil substitute materials have been redistributed. This requirement 
applies only to rills and gullies that--
    (i) Disrupt the approved postmining land use or reestablishment of 
the vegetative cover;
    (ii) Cause or contribute to a violation of applicable state or 
tribal water quality standards or effluent limitations, including, but 
not limited to, water quality standards established under the authority 
of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), and 
effluent limitations established in any National Pollutant Discharge 
Elimination System permit issued for the operation under section 402 of 
the Clean Water Act, 33 U.S.C. 1342, or its state or tribal 
counterpart;
    (iii) Cause or contribute to a violation of applicable state or 
tribal water quality standards for groundwater; or
    (iv) Result in material damage to the hydrologic balance outside 
the permit area.
    (2) You must reapply soil materials to the filled or regraded rills 
and gullies when necessary to reestablish a vegetative cover. You must 
then replant those areas.


Sec.  816.97  How must I protect and enhance fish, wildlife, and 
related environmental values?

    (a) General requirements. You, the permittee, must, to the extent 
possible using the best technology currently available, minimize 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values and achieve enhancement of those resources where 
practicable, as described in detail in the fish and wildlife protection 
and enhancement plan approved in the permit in accordance with Sec.  
780.16 of this chapter.
    (b) Requirements related to federal, state, and tribal endangered 
species laws.--(1) Requirements related to the Endangered Species Act 
of 1973. (i) You may not conduct any surface mining activity that is in 
violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. 
Nothing in this chapter authorizes the taking of a species listed as 
threatened or endangered under the Endangered Species Act of 1973, 16 
U.S.C. 1531 et seq., or the destruction or adverse modification of 
designated critical habitat unless the U.S. Fish and Wildlife Service 
or the National Marine Fisheries Service, as applicable, authorizes the 
taking of a threatened or endangered species or the destruction or 
adverse modification of designated critical habitat under 16 U.S.C. 
1536(b)(4) or 1539(a)(1)(B).
    (ii) You must promptly report to the regulatory authority the 
presence of any previously unreported species listed as threatened or 
endangered, or any previously unreported species proposed for listing 
as threatened or endangered, under the Endangered Species Act of 1973, 
16 U.S.C. 1531 et seq., within the permit or adjacent areas. This 
requirement applies regardless of whether the species was listed before 
or after permit issuance.
    (iii)(A) Upon receipt of a notification under paragraph (b)(2)(ii) 
of this section, the regulatory authority will contact and coordinate 
with the appropriate state, tribal, and federal fish and wildlife 
agencies.
    (B) The regulatory authority, in coordination with the appropriate 
state, tribal, and federal fish and wildlife agencies, will identify 
whether, and under what conditions, you may proceed. When necessary to 
ensure compliance with the Endangered Species Act of 1973, 16 U.S.C. 
1531 et seq., the regulatory authority will issue an order under Sec.  
774.10(b) of this chapter requiring that you revise the permit.
    (iv) You must comply with any species-specific protection measures 
required by the regulatory authority in coordination with the U.S. Fish 
and Wildlife Service or the National Marine Fisheries Service, as 
applicable.
    (2) Requirements related to state and tribal endangered species 
laws. (i) You must promptly report to the regulatory authority any 
previously unreported state-listed or tribally-listed threatened or 
endangered species within the permit or adjacent areas whenever you 
become aware of its presence. This requirement applies regardless of 
whether the species was listed before or after permit issuance.
    (ii)(A) Upon receipt of a notification under paragraph (b)(2)(i) of 
this section, the regulatory authority will contact and coordinate with 
the appropriate state or tribal fish and wildlife agencies.
    (B) The regulatory authority, in coordination with the appropriate 
state or tribal fish and wildlife agencies, will

[[Page 93412]]

identify whether, and under what conditions, you may proceed. When 
necessary, the regulatory authority will issue an order under Sec.  
774.10(b) of this chapter requiring that you revise the permit.
    (c) Bald and golden eagles. (1) You may not conduct any surface 
mining activity in a manner that would result in the unlawful taking of 
a bald or golden eagle, its nest, or any of its eggs.
    (2) You must promptly report to the regulatory authority any golden 
or bald eagle nest within the permit area of which you become aware.
    (3) Upon notification, the regulatory authority will contact and 
coordinate with the U.S. Fish and Wildlife Service and, when 
appropriate, the state or tribal fish and wildlife agency to identify 
whether, and under what conditions, you may proceed.
    (4) Nothing in this chapter authorizes the taking of a bald or 
golden eagle, its nest, or any of its eggs in violation of the Bald and 
Golden Eagle Protection Act, 16 U.S.C. 668-668d.
    (d) Miscellaneous protective measures for other species of fish and 
wildlife. To the extent possible, using the best technology currently 
available, you must--
    (1) Ensure that electric power transmission lines and other 
transmission facilities used for, or incidental to, surface mining 
activities on the permit area are designed and constructed to minimize 
electrocution hazards to raptors and other avian species with large 
wingspans.
    (2) Locate, construct, operate, and maintain haul and access roads 
and sedimentation control structures in a manner that avoids or 
minimizes impacts on important fish and wildlife species or other 
species protected by state or federal law.
    (3) Design fences, overland conveyors, and other potential barriers 
to permit passage for large mammals, except where the regulatory 
authority determines that such requirements are unnecessary.
    (4) Fence, cover, or use other appropriate methods to exclude 
wildlife from ponds that contain hazardous concentrations of toxic or 
toxic-forming materials.
    (5) Reclaim and reforest lands that were forested at the time of 
application and lands that would revert to forest under conditions of 
natural succession in a manner that enhances recovery of the native 
forest ecosystem as expeditiously as practicable.
    (e) Wetlands. (1) To the extent possible, using the best technology 
currently available, you must avoid disturbances to wetlands and, where 
practicable, enhance them. If avoidance is not possible, you must 
restore or replace wetlands that you disturb and, where practicable, 
enhance them.
    (2) Nothing in paragraph (e)(1) of this section authorizes 
destruction or degradation of wetlands in violation of section 404 of 
the Clean Water Act, 33 U.S.C. 1344.
    (f) Habitat of unusually high value for fish and wildlife. To the 
extent possible, using the best technology currently available, you 
must avoid disturbances to and, where practicable, enhance riparian and 
other native vegetation along rivers and streams, lentic vegetation 
bordering ponds and lakes, and habitat of unusually high value for fish 
and wildlife, as described in Sec.  779.20(c)(3) of this chapter. If 
avoidance of these features is not possible, you must restore or 
replace those features and, where practicable, enhance them.
    (g) Vegetation requirements for fish and wildlife habitat 
postmining land use. Where fish and wildlife habitat is a postmining 
land use, you must select and arrange the plant species to be used for 
revegetation to maximize the benefits to fish and wildlife. Plant 
species must be native to the area and must be selected on the basis of 
the following criteria:
    (1) Their proven nutritional value for fish or wildlife.
    (2) Their value as cover for fish or wildlife.
    (3) Their ability to support and enhance fish or wildlife habitat 
after the release of performance bonds.
    (4) Their ability to sustain natural succession by allowing the 
establishment and spread of plant species across ecological gradients. 
You may not use invasive plant species that are known to inhibit 
natural succession.
    (h) Vegetation requirements for cropland postmining land use. Where 
cropland is the postmining land use, and where appropriate for 
wildlife-management and crop-management practices, you must intersperse 
the crop fields with trees, hedges, or fence rows to break up large 
blocks of monoculture and to diversify habitat types for birds and 
other animals.
    (i) Vegetation requirements for forestry postmining land uses. 
Where forestry, whether managed or unmanaged, is the postmining land 
use, you must plant native tree and understory species to the extent 
that doing so is not inconsistent with the type of forestry to be 
practiced as part of the postmining land use. In all cases, regardless 
of the type of forestry to be practiced as part of the postmining land 
use, you must intersperse plantings of commercial species with 
plantings of native trees and shrubs of high value to wildlife.
    (j) Vegetation requirements for other postmining land uses. Where 
residential, public service, commercial, industrial, or intensive 
recreational uses are the postmining land use, you must establish--
    (1) Greenbelts comprised of non-invasive native plants that provide 
food or cover for wildlife, unless greenbelts would be inconsistent 
with the approved postmining land use plan for that site.
    (2)(i) A vegetated buffer at least 100 feet wide along each bank of 
all perennial and intermittent streams within the permit area. The 
width of the buffer must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark. 
The buffer must be planted with species native to the area, including 
species adapted to and suitable for planting in any floodplains or 
other riparian habitat located within the buffer. The species planted 
must consist of native tree and understory species if the land was 
forested at the time of application or if it would revert to forest 
under conditions of natural succession.
    (ii) Paragraph (j)(2)(i) of this section does not apply to 
situations in which a vegetated buffer comprised of native species 
would be incompatible with an approved postmining land use that is 
implemented before final bond release under Sec. Sec.  800.40 through 
800.43 of this chapter.
    (k) Planting arrangement requirements. You must design and arrange 
plantings in a manner that optimizes benefits to wildlife to the extent 
practicable and consistent with the postmining land use.


Sec.  816.99  What measures must I take to prevent and remediate 
landslides?

    (a) You, the permittee or operator, must provide an undisturbed 
natural barrier beginning at the elevation of the lowest coal seam to 
be mined and extending from the outslope for the distance that the 
regulatory authority determines is needed to assure stability. The 
barrier must be retained in place to prevent slides.
    (b)(1) You must notify the regulatory authority by the fastest 
available means whenever a landslide occurs that has the potential to 
adversely affect public property, health, safety, or the environment.
    (2) You must comply with any remedial measures that the regulatory 
authority requires in response to the notification provided in 
paragraph (b)(1) of this section.

[[Page 93413]]

Sec.  816.100  What are the standards for conducting reclamation 
contemporaneously with mining?

    You must reclaim all land disturbed by surface mining activities as 
contemporaneously as practicable with the mining operations, except 
when the mining operations are conducted in accordance with a variance 
for concurrent surface and underground mining activities under Sec.  
785.18 of this chapter. Reclamation activities include, but are not 
limited to, backfilling, grading, soil replacement, revegetation, and 
stream restoration.


Sec.  816.101  [Reserved]


Sec.  816.102  How must I backfill the mined area and grade and 
configure the land surface?

    (a) You, the permittee or operator, must backfill all mined areas 
and grade all disturbed areas in compliance with the plan approved in 
the permit in accordance with Sec.  780.12(d) of this chapter to--
    (1) Restore the approximate original contour as the final surface 
configuration, except in the following situations:
    (i) Mountaintop removal mining operations approved under Sec.  
785.14 of this chapter.
    (ii) Sites for which the regulatory authority has approved a 
variance under Sec.  785.16 of this chapter.
    (iii) Operations to which the thin overburden standards of Sec.  
816.104 of this part apply.
    (iv) Operations to which the thick overburden standards of Sec.  
816.105 of this part apply.
    (v) Remining operations on previously mined areas, but only to the 
extent specified in Sec.  816.106(b) of this part.
    (vi) Excess spoil fills constructed in accordance with Sec.  816.71 
or Sec.  816.74 of this part.
    (vii) Refuse piles constructed in accordance with Sec.  816.83 of 
this part.
    (viii) Permanent impoundments that meet the requirements of 
paragraph (a)(3)(ii) of this section and Sec.  780.35(b)(4) of this 
chapter.
    (ix) The placement, in accordance with Sec.  780.35(b)(3) of this 
chapter, of what would otherwise be excess spoil on the mined-out area 
to heights in excess of the premining elevation when necessary to avoid 
or minimize construction of excess spoil fills on undisturbed land.
    (2) Minimize the creation of uniform slopes and cut-and-fill 
terraces. The regulatory authority may approve cut-and-fill terraces 
only if--
    (i) They are compatible with the approved postmining land use and 
are needed to conserve soil moisture, ensure stability, or control 
erosion on final-graded slopes; or
    (ii) Specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, in which case the final 
grading may include a terrace of adequate width to ensure the safety, 
stability, and erosion control necessary to implement the postmining 
land use.
    (3) Eliminate all highwalls, spoil piles, impoundments, and 
depressions, except in the following situations:
    (i) You may construct or retain small depressions if--
    (A) They are needed to retain moisture, minimize erosion, create or 
enhance wildlife habitat, or assist revegetation;
    (B) They are consistent with the hydrologic reclamation plan 
approved in the permit in accordance with Sec.  780.22 of this chapter; 
and
    (C) You demonstrate that they will not result in elevated levels of 
parameters of concern in discharges from the backfilled and graded 
area.
    (ii) The regulatory authority may approve the retention of 
permanent impoundments if--
    (A) They meet the requirements of Sec. Sec.  816.49 and 816.55 of 
this part;
    (B) They are suitable for the approved postmining land use;
    (C) You demonstrate compliance with the future maintenance 
provisions of Sec.  800.42(c)(5) of this chapter; and
    (D) You have obtained all necessary approvals and authorizations 
under section 404 of the Clean Water Act, 33 U.S.C. 1344, when the 
impoundment is located in waters subject to the jurisdiction of the 
Clean Water Act, 33 U.S.C. 1251 et seq.
    (iii) You may retain highwalls on previously mined areas to the 
extent provided in Sec.  816.106(b) of this part.
    (iv) You may retain modified highwall segments to the extent 
necessary to replace similar natural landforms removed by the mining 
operation. The regulatory program must establish the conditions under 
which these highwall segments may be retained and the modifications 
that must be made to the highwall to ensure that--
    (A) The retained segment resembles similar landforms that existed 
before any mining and restores the ecological niches that those 
landforms provided. Nothing in this paragraph authorizes the retention 
of modified highwall segments in excess of the number, length, and 
height needed to replace similar landforms that existed before any 
mining.
    (B) The retained segment is stable. Features that result in the 
creation of talus slopes for wildlife habitat are acceptable if they 
meet the requirements of paragraph (a)(3)(iv)(A) of this section.
    (C) The retained segment does not create an increased safety hazard 
compared to the features that existed before any mining.
    (D) The exposure of water-bearing strata, if any, in the retained 
segment does not adversely impact the hydrologic balance.
    (4) Achieve a postmining slope that does not exceed either the 
angle of repose or such lesser slope as is necessary to achieve a 
minimum long-term static safety factor of 1.3 and to prevent slides.
    (5) Minimize erosion and water pollution, both on and off the site.
    (6) Support the approved postmining land use.
    (b) You must return all spoil to the mined-out area. This 
requirement does not apply to--
    (1) Excess spoil disposed of in accordance with Sec.  816.71 or 
Sec.  816.74 of this part.
    (2) Mountaintop removal mining operations approved under Sec.  
785.14 of this chapter.
    (3) Spoil placed outside the mined-out area in non-steep slope 
areas to restore the approximate original contour by blending the spoil 
into the surrounding terrain, provided that you comply with the 
following requirements:
    (i) You must remove all vegetation and other organic matter from 
the area outside the mined-out area before spoil placement begins. You 
may not burn these materials; you must store, redistribute, use, or 
bury them in the manner specified in Sec.  816.22(f) of this part.
    (ii) You must remove, segregate, store, and redistribute topsoil on 
the area outside the mined-out area in accordance with Sec.  816.22 of 
this part.
    (c) You must compact spoil and waste materials when necessary to 
ensure stability or to prevent the formation of acid or toxic mine 
drainage, but, to the extent possible, you must avoid compacting spoil, 
soil, and other materials placed in what will be the root zone of the 
species planted under the revegetation plan approved in the permit in 
accordance with Sec.  780.12(g) of this chapter.
    (d)(1) You must cover all exposed coal seams with material that is 
noncombustible, nonacid-forming, and nontoxic-forming.
    (2) You must handle and dispose of all other combustible materials 
exposed, used, or produced during mining in accordance with Sec.  
816.89 of this part in a manner that will prevent sustained combustion, 
as approved in the permit

[[Page 93414]]

in accordance with Sec.  780.12(j) of this chapter.
    (3) You must handle all other acid-forming and toxic-forming 
materials--
    (i) In compliance with the plan approved in the permit in 
accordance with Sec.  780.12(n) of this chapter;
    (ii) In compliance with Sec.  816.38 of this part;
    (iii) In compliance with the hydrologic reclamation plan approved 
in the permit in accordance with Sec.  780.22(a) of this chapter; and
    (iv) In a manner that will minimize adverse effects on plant growth 
and the approved postmining land use.
    (e) You must dispose of any coal mine waste placed in the mined-out 
area in accordance with Sec. Sec.  816.81 and 816.83 of this part, 
except that a long-term static safety factor of 1.3 will apply instead 
of the 1.5 factor specified in Sec.  816.81(d)(2) of this part.
    (f) You must prepare final-graded surfaces in a manner that 
minimizes erosion and provides a surface for replacement of soil 
materials that will minimize slippage.


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

    (a) Applicability. This section applies only where the thickness of 
all overburden strata multiplied by the swell factor for those strata 
plus the thickness of any waste materials to be returned to the mined-
out area is less than the combined thickness of the overburden and coal 
seam or seams prior to removing the coal to the extent that there is 
insufficient material to restore the approximate original contour. 
Specifically, there is insufficient material to achieve a surface 
configuration that--
    (1) Closely resembles the surface configuration of the mined area 
prior to any mining; and
    (2) Blends into and complements the drainage pattern of the 
surrounding terrain.
    (b) Performance standards. Where thin overburden as described in 
paragraph (a) of this section occurs within the permit area, you must 
backfill all mined areas and grade all disturbed areas in accordance 
with the plan approved in the permit under Sec.  780.12(d) of this 
chapter. At a minimum, you must--
    (1) Use all spoil and waste materials available from the entire 
permit area to attain the lowest practicable grade that does not exceed 
the angle of repose.
    (2) Comply with the requirements of paragraphs (a)(2) through (f) 
of Sec.  816.102 of this part.
    (3) Ensure that the final surface configuration blends into and 
complements the drainage pattern of the surrounding terrain to the 
extent possible.


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

    (a) Applicability. This section applies only where the thickness of 
all overburden strata multiplied by the swell factor for those strata 
plus the thickness of any waste materials to be returned to the mined-
out area exceeds the combined thickness of the overburden strata and 
the coal seam or seams in place to the extent that there is more 
material than can be used to restore the approximate original contour. 
Specifically, the amount of material to be returned to the mined-out 
area is so large that it is not possible to achieve a surface 
configuration that closely resembles the surface configuration of the 
mined land prior to any mining.
    (b) Performance standards. Where thick overburden as described in 
paragraph (a) of this section occurs within the permit area, you must 
backfill all mined areas and grade all disturbed areas in accordance 
with the plan approved in the permit under Sec.  780.12(d) of this 
chapter. At a minimum, you must--
    (1) Backfill the mined-out area to the approximate original contour 
and then place the remaining spoil and waste materials on top of the 
backfilled area to the extent possible, as determined in accordance 
with the excess spoil minimization requirements of Sec.  780.35(b) of 
this chapter.
    (2) Grade the backfilled area to the lowest practicable grade that 
is ecologically sound, consistent with the postmining land use, and 
compatible with the surrounding region. No slope may exceed the angle 
of repose.
    (3) Comply with the requirements of paragraphs (a)(2) through (f) 
of Sec.  816.102 of this part.
    (4) Dispose of any excess spoil in accordance with Sec.  816.71 or 
Sec.  816.74 of this part.
    (5) Ensure that the final surface configuration blends into and 
complements the drainage pattern of the surrounding terrain to the 
extent possible.


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

    (a) Remining operations on previously mined areas that contain a 
preexisting highwall must comply with the requirements of Sec. Sec.  
816.102 through 816.107 of this part, except as provided in this 
section.
    (b) The highwall elimination requirements of Sec.  816.102(a) of 
this part do not apply to remining operations for which you demonstrate 
in writing, to the regulatory authority's satisfaction, that the volume 
of all reasonably available spoil is insufficient to completely 
backfill the reaffected or enlarged highwall. Instead, for those 
operations, you must eliminate the highwall to the maximum extent 
technically practical in accordance with the following criteria:
    (1) You must use all spoil generated by the remining operation and 
any other reasonably available spoil to backfill the area. You must 
include reasonably available spoil in the immediate vicinity of the 
remining operation within the permit area.
    (2) You must grade the backfilled area to a slope that is 
compatible with the approved postmining land use and that provides 
adequate drainage and long-term stability.
    (3) Any highwall remnant must be stable and not pose a hazard to 
the public health and safety or to the environment. You must 
demonstrate, to the satisfaction of the regulatory authority, that the 
highwall remnant is stable.
    (4) You must not disturb spoil placed on the outslope during 
previous mining operations if disturbance would cause instability of 
the remaining spoil or otherwise increase the hazard to the public 
health and safety or to the environment.


Sec.  816.107  What special provisions for backfilling, grading, and 
surface configuration apply to operations on steep slopes?

    (a) Surface mining activities on steep slopes must comply with this 
section and the requirements of Sec. Sec.  816.102 through 816.106 of 
this part, except where--
    (1) Mining is conducted on flat or gently rolling terrain with an 
occasional steep slope through which the mining proceeds and leaves a 
plain or predominantly flat area; or
    (2) Operations are conducted in accordance with part 824 of this 
chapter.
    (b) You may not place the following materials on the downslope:
    (1) Spoil.
    (2) Waste materials of any type.
    (3) Debris, including debris from clearing and grubbing, except for 
woody materials used to enhance fish and wildlife habitat.
    (4) Abandoned or disabled equipment.

[[Page 93415]]

    (c) You may not disturb land above the highwall unless the 
regulatory authority finds that disturbance will facilitate compliance 
with the environmental protection standards of this subchapter and the 
disturbance is limited to that necessary to facilitate compliance.
    (d) You must handle woody materials in accordance with Sec.  
816.22(f) of this part.


Sec.  816.111  How must I revegetate areas disturbed by mining 
activities?

    (a) You, the permittee, must establish a diverse, effective, 
permanent vegetative cover on regraded areas and on all other disturbed 
areas except--
    (1) Water areas approved as a postmining land use or in support of 
the postmining land use.
    (2) The surfaces of roads approved for retention to support the 
postmining land use.
    (3) Rock piles, water areas, and other non-vegetative features 
created to restore or enhance wildlife habitat under the fish and 
wildlife protection and enhancement plan approved in the permit in 
accordance with Sec.  780.16 of this chapter.
    (4) Any other impervious surface, such as a building or a parking 
lot, approved as part of or in support of the postmining land use. This 
provision applies only to structures and facilities constructed before 
expiration of the revegetation responsibility period.
    (b) The reestablished vegetative cover must--
    (1) Comply with the revegetation plan approved in the permit in 
accordance with Sec.  780.12(g) of this chapter.
    (2) Be consistent with the approved postmining land use and, except 
as provided in the revegetation plan approved in the permit in 
accordance with Sec.  780.12(g) of this chapter, the native plant 
communities described in Sec.  779.19 of this chapter.
    (3) Be at least equal in extent of cover to the natural vegetation 
of the area.
    (4) Be capable of stabilizing the soil surface and, in the long 
term, preventing erosion in excess of what would have occurred 
naturally had the site not been disturbed.
    (5) Not inhibit the establishment of trees and shrubs when the 
revegetation plan approved in the permit requires the use of woody 
plants.
    (c) Volunteer plants of species that are desirable components of 
the plant communities described in the permit application under Sec.  
779.19 of this chapter and that are not inconsistent with the 
postmining land use may be considered in determining whether the 
requirements of Sec. Sec.  816.111 and 816.116 have been met.
    (d) You must stabilize all areas upon which you have redistributed 
soil or soil substitute materials. You must use one or a combination of 
the following methods, unless the regulatory authority determines that 
neither method is necessary to stabilize the surface and control 
erosion--
    (1) Establishing a temporary vegetative cover consisting of 
noncompetitive and non-invasive species, either native or domesticated 
or a combination thereof.
    (2) Applying a suitable mulch free of weed and noxious plant seeds.
    (e) You must plant all disturbed areas with the species needed to 
establish a permanent vegetative cover during the first normal period 
for favorable planting conditions after redistribution of the topsoil 
or other plant-growth medium. The normal period for favorable planting 
conditions is the generally accepted local planting time for the type 
of plant materials approved in the permit as part of the revegetation 
plan under Sec.  780.12(g) of this chapter.


Sec.  816.113  [Reserved]


Sec.  816.114  [Reserved]


Sec.  816.115  How long am I responsible for revegetation after 
planting?

    (a) General provisions. (1) The period of extended responsibility 
for successful revegetation will begin after the last year of augmented 
seeding, fertilizing, irrigation, or other work, excluding husbandry 
practices that are approved by the regulatory authority in accordance 
with paragraph (d) of this section.
    (2) The initial planting of small areas that are regraded and 
planted as a result of the removal of sediment control structures and 
associated structures and facilities, including ancillary roads used to 
access those structures, need not be considered an augmented seeding 
necessitating an extended or separate revegetation responsibility 
period. This paragraph also applies to areas upon which accumulated 
sediment and materials resulting from removal of sedimentation pond 
embankments are spread.
    (b) Areas of more than 26.0 inches of average annual precipitation. 
In areas of more than 26.0 inches of annual average precipitation, the 
period of responsibility will continue for a period of not less than--
    (1) Five full years, except as provided in paragraph (b)(2) of this 
section.
    (i) The vegetation parameters for grazing land, pasture land, or 
cropland must equal or exceed the approved success standard during the 
growing season of any 2 years of the responsibility period, except the 
first year.
    (ii) On all other areas, the parameters must equal or exceed the 
applicable success standard during the growing season of the last year 
of the responsibility period.
    (2) Two full years for lands eligible for remining included in a 
permit approved under Sec.  785.25 of this chapter. The lands must 
equal or exceed the applicable ground cover standard during the growing 
season of the last year of the responsibility period.
    (c) Areas of 26.0 inches or less average annual precipitation. In 
areas of 26.0 inches or less average annual precipitation, the period 
of responsibility will continue for a period of not less than:
    (1) Ten full years, except as provided in paragraph (c)(2) of this 
section.
    (i) The vegetation parameters for grazing land, pasture land, or 
cropland must equal or exceed the approved success standard during the 
growing season of any two years after year six of the responsibility 
period.
    (ii) On all other areas, the parameters must equal or exceed the 
applicable success standard during the growing season of the last year 
of the responsibility period.
    (2) Five full years for lands eligible for remining included in a 
permit approved under Sec.  785.25 of this chapter. The lands must 
equal or exceed the applicable ground cover standard during the growing 
seasons of the last two consecutive years of the responsibility period.
    (d) Normal husbandry practices. (1) The regulatory authority may 
approve selective husbandry practices, excluding augmented seeding, 
fertilization, or irrigation, provided it obtains prior approval from 
OSMRE in accordance with Sec.  732.17 of this chapter that the 
practices are normal husbandry practices, without extending the period 
of responsibility for revegetation success and bond liability, if those 
practices can be expected to continue as part of the postmining land 
use or if discontinuance of the practices after the liability period 
expires will not reduce the probability of permanent revegetation 
success.
    (2) Approved practices must be normal husbandry practices within 
the region for unmined lands having land uses similar to the approved 
postmining land use of the disturbed area, including such practices as 
disease, pest, and vermin control; and any pruning, reseeding, and 
transplanting specifically necessitated by such actions.

[[Page 93416]]

Sec.  816.116  What requirements apply to standards for determining 
revegetation success?

    (a) The regulatory authority must select standards for revegetation 
success and statistically valid sampling techniques for measuring 
revegetation success. The standards and techniques must be made 
available to the public in written form.
    (b) The standards for success applied to a specific permit must 
reflect the revegetation plan requirements of Sec.  780.12(g) of this 
chapter. They must be based upon the following data--
    (1) The plant community and vegetation information required under 
Sec.  779.19 of this chapter.
    (2) The soil type and productivity information required under Sec.  
779.21 of this chapter.
    (3) The land use capability and productivity information required 
under Sec.  779.22 of this chapter.
    (4) The postmining land use approved under Sec.  780.24 of this 
chapter, but only to the extent that the approved postmining land use 
will be implemented before final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter. Otherwise, the site must be revegetated 
in a manner that will restore native plant communities and the 
revegetation success standards for the site must reflect that 
requirement.
    (c) Except for the areas identified in Sec.  816.111(a) of this 
part, standards for success must include--
    (1) Species diversity.
    (2) Areal distribution of species.
    (3) Ground cover, except for land actually used for cropland after 
the completion of regrading and redistribution of soil materials.
    (4) Production, for land used for cropland, pasture, or grazing 
land either before permit issuance or after the completion of regrading 
and redistribution of soil materials.
    (5) Stocking, for areas revegetated with woody plants.
    (d) The ground cover, production, or stocking of the revegetated 
area will be considered equal to the approved success standard for 
those parameters when the measured values are not less than 90 percent 
of the success standard, using a 90-percent statistical confidence 
interval (i.e., a one-sided test with a 0.10 alpha error).
    (e) For all areas revegetated with woody plants, regardless of the 
postmining land use, the regulatory authority must specify minimum 
stocking and planting arrangements on the basis of local and regional 
conditions and after coordination with and approval by the state 
agencies responsible for the administration of forestry and wildlife 
programs. Coordination and approval may occur on either a program-wide 
basis or a permit-specific basis.
    (f)(1) Only those species of trees and shrubs approved in the 
permit as part of the revegetation plan under Sec.  780.12(g) of this 
chapter or volunteer trees and shrubs of species that meet the 
requirements of Sec.  816.111(c) of this part may be counted in 
determining whether stocking standards have been met.
    (2)(i) At the time of final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter, at least 80 percent of the trees and 
shrubs used to determine success must have been in place for 60 percent 
of the applicable minimum period of responsibility under Sec.  816.115 
of this part.
    (ii) Trees and shrubs counted in determining revegetation success 
must be healthy and have been in place for not less than two growing 
seasons. Any replanting must be done by means of transplants to allow 
for proper accounting of plant stocking.
    (iii)(A) For purposes of paragraph (f)(2)(ii) of this section, 
volunteer trees and shrubs of species that meet the requirements of 
Sec.  816.111(c) of this part may be deemed equivalent to planted 
specimens two years of age or older.
    (B) Suckers on shrubby vegetation can be counted as volunteer 
plants when it is evident that the shrub community is vigorous and 
expanding.
    (iv) The requirements of paragraphs (f)(2)(i) and (ii) of this 
section will be deemed met when records of woody vegetation planted 
show that--
    (A) No woody plants were planted during the last two growing 
seasons of the responsibility period; and
    (B) If any replanting of woody plants took place earlier during the 
responsibility period, the total number planted during the last 60 
percent of that period is less than 20 percent of the total number of 
woody plants required to meet the stocking standard.
    (3) Vegetative ground cover on areas planted with trees or shrubs 
must be of a nature that allows for natural establishment and 
succession of native plants, including trees and shrubs.
    (g) Special provision for areas that are to be developed within the 
revegetation responsibility period. Portions of the permit area that 
are to be developed for industrial, commercial, or residential use 
within the revegetation responsibility period need not meet production 
or stocking standards. For those areas, the vegetative ground cover 
must not be less than that required to control erosion.
    (h) Special provision for previously mined areas. Previously mined 
areas need only meet a vegetative ground cover standard, unless the 
regulatory authority specifies otherwise. At a minimum, the cover on 
the revegetated previously mined area must not be less than the ground 
cover existing before redisturbance and must be adequate to control 
erosion.
    (i) Special provision for prime farmland. For prime farmland 
historically used for cropland, the revegetation success standard 
provisions of Sec.  823.15 of this chapter apply in lieu of the 
requirements of paragraphs (b) through (h) of this section.


Sec.  816.131  What actions must I take when I temporarily cease mining 
operations?

    (a)(1) Each person who temporarily ceases to conduct surface mining 
activities at a particular site must effectively secure surface 
facilities in areas in which there are no current operations, but where 
operations are to be resumed under an approved permit.
    (2) Temporary cessation does not relieve a person of his or her 
obligation to comply with any provisions of the approved permit.
    (b)(1) You must submit a notice of intent to temporarily cease 
operations to the regulatory authority before ceasing mining and 
reclamation operations for 30 or more days, or as soon as you know that 
a temporary cessation will extend beyond 30 days.
    (2) The notice of temporary cessation must include a statement of 
the--
    (i) Exact number of surface acres disturbed within the permit area 
prior to temporary cessation;
    (ii) Extent and kind of reclamation accomplished before temporary 
cessation; and
    (iii) Backfilling, regrading, revegetation, environmental 
monitoring, and water treatment activities that will continue during 
temporary cessation.


Sec.  816.132  What actions must I take when I permanently cease mining 
operations?

    (a) Persons who permanently cease surface mining activities at a 
particular site must close, backfill, or otherwise permanently reclaim 
all disturbed areas in accordance with this chapter and the permit 
approved by the regulatory authority.
    (b) All equipment, structures, underground openings, or other 
facilities must be removed and the affected land reclaimed, unless the 
regulatory authority approves retention of those features because they 
are suitable for the postmining land use or environmental monitoring.

[[Page 93417]]

Sec.  816.133  What provisions concerning postmining land use apply to 
my operation?

    You, the permittee, must restore all disturbed areas in a timely 
manner to conditions that are capable of supporting--
    (a) The uses they were capable of supporting before any mining, as 
described under Sec.  779.22 of this chapter; or
    (b) Higher or better uses approved under Sec.  780.24(b) of this 
chapter.


Sec.  816.150  What are the general requirements for haul and access 
roads?

    (a) Road classification system. (1) Each road meeting the 
definition of that term in Sec.  701.5 of this chapter must be 
classified as either a primary road or an ancillary road.
    (2) A primary road is any road that is--
    (i) Used for transporting coal or spoil;
    (ii) Frequently used for access or other purposes for a period in 
excess of 6 months; or
    (iii) To be retained for an approved postmining land use.
    (3) An ancillary road is any road not classified as a primary road.
    (b) Performance standards. Each road must be located, designed, 
constructed, reconstructed, used, maintained, and reclaimed so as to--
    (1) Control or prevent erosion, siltation, and air pollution 
attendant to erosion, including road dust and dust occurring on other 
exposed surfaces, by measures such as vegetating, watering, using 
chemical or other dust suppressants, or otherwise stabilizing all 
exposed surfaces in accordance with current, prudent engineering 
practices.
    (2) Control or prevent damage to fish, wildlife, or their habitat 
and related environmental values.
    (3) Control or prevent additional contributions of suspended solids 
to streamflow or runoff outside the permit area;
    (4) Neither cause nor contribute, directly or indirectly, to a 
violation of applicable state or tribal water quality standards for 
surface water and groundwater, including, but not limited to, surface 
water quality standards established under the authority of section 
303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    (5) Refrain from seriously altering the normal flow of water in 
streambeds or drainage channels.
    (6) Prevent or control damage to public or private property, 
including the prevention or mitigation of adverse effects on lands 
within the boundaries of units of the National Park System, the 
National Wildlife Refuge System, the National System of Trails, the 
National Wilderness Preservation System, the Wild and Scenic Rivers 
System, including designated study rivers, and National Recreation 
Areas designated by Act of Congress.
    (7) Use nonacid- and nontoxic-forming substances in road surfacing.
    (c) Design and construction limits and establishment of design 
criteria. To ensure environmental protection appropriate for their 
planned duration and use, including consideration of the type and size 
of equipment used, the design and construction or reconstruction of 
roads must include appropriate limits for grade, width, surface 
materials, surface drainage control, culvert placement, and culvert 
size, in accordance with current, prudent engineering practices, and 
any necessary design criteria established by the regulatory authority.
    (d) Location. (1) No part of any road may be located in the channel 
of an intermittent or perennial stream unless specifically approved by 
the regulatory authority in accordance with Sec.  780.28 of this 
chapter and Sec.  816.57 of this part.
    (2) Roads must be located to minimize downstream sedimentation and 
flooding.
    (e) Maintenance. (1) A road must be maintained to meet the 
performance standards of this part and any additional criteria 
specified by the regulatory authority.
    (2) A road damaged by a catastrophic event, such as a flood or 
earthquake, must be repaired as soon as is practicable after the damage 
has occurred.
    (f) Reclamation. A road not to be retained as part of an approved 
postmining land use must be reclaimed in accordance with the approved 
reclamation plan as soon as practicable after it is no longer needed 
for mining and reclamation operations. Reclamation must include--
    (1) Closing the road to traffic.
    (2) Removing all bridges and culverts unless approved as part of 
the postmining land use.
    (3) Removing or otherwise disposing of road-surfacing materials 
that are incompatible with the postmining land use and revegetation 
requirements.
    (4) Reshaping the slopes of road cuts and fills as necessary to be 
compatible with the postmining land use and to complement the natural 
drainage pattern of the surrounding terrain.
    (5) Protecting the natural drainage patterns by installing dikes or 
cross-drains as necessary to control surface runoff and erosion.
    (6) Scarifying or ripping the roadbed, replacing topsoil or 
substitute material in accordance with Sec.  816.22 of this part, and 
revegetating disturbed surfaces in accordance with Sec. Sec.  816.111, 
816.115, and 816.116 of this chapter.


Sec.  816.151  What additional requirements apply to primary roads?

    (a) Primary roads must meet the requirements of Sec.  816.150 of 
this part and the additional requirements of this section.
    (b) Certification. The construction or reconstruction of primary 
roads must be certified in a report to the regulatory authority by a 
qualified registered professional engineer, or in any state that 
authorizes land surveyors to certify the construction or reconstruction 
of primary roads, a qualified registered professional land surveyor 
with experience in the design and construction of roads. The report 
must indicate that the primary road has been constructed or 
reconstructed as designed and in accordance with the approved plan.
    (c) Safety factor. Each primary road embankment must have a minimum 
static factor of 1.3 or meet the requirements established under Sec.  
780.37(c) of this chapter.
    (d) Location. (1) To minimize erosion, a primary road must be 
located, insofar as is practicable, on the most stable available 
surface.
    (2) Fords of perennial or intermittent streams are prohibited 
unless they are specifically approved by the regulatory authority as 
temporary routes during periods of road construction.
    (e) Drainage control. In accordance with the approved plan--
    (1) Each primary road must be constructed, or reconstructed, and 
maintained to have adequate drainage control, using structures such as, 
but not limited to, bridges, ditches, cross drains, and ditch relief 
drains. The drainage control system must be designed to safely pass the 
peak runoff from the 10-year, 6-hour precipitation event, or any 
greater event specified by the regulatory authority.
    (2) Drainage pipes and culverts must be installed as designed, and 
maintained in a free and operating condition and to prevent or control 
erosion at inlets and outlets.
    (3) Drainage ditches must be constructed and maintained to prevent 
uncontrolled drainage over the road surface and embankment.
    (4) Culverts must be installed and maintained to sustain the 
vertical soil pressure, the passive resistance of the foundation, and 
the weight of vehicles using the road.
    (5) Natural stream channels must not be altered or relocated 
without the prior approval of the regulatory authority in

[[Page 93418]]

accordance with Sec.  780.28 of this chapter and Sec.  816.57 of this 
part.
    (6) Except as provided in paragraph (d)(2) of this section, 
structures for perennial or intermittent stream channel crossings must 
be made using bridges, culverts, low-water crossings, or other 
structures designed, constructed, and maintained using current prudent 
engineering practices. The regulatory authority must ensure that low-
water crossings are designed, constructed, and maintained to prevent 
erosion of the structure or streambed and additional contributions of 
suspended solids to streamflow.
    (f) Surfacing. Primary roads must be surfaced with material 
approved by the regulatory authority as being sufficiently durable for 
the anticipated volume of traffic and the weight and speed of vehicles 
using the road.


Sec.  816.180  To what extent must I protect utility installations?

    You must conduct all surface coal mining operations in a manner 
that minimizes damage, destruction, or disruption of services provided 
by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; 
railroads; electric and telephone lines; and water and sewage lines 
that pass over, under, or through the permit area, unless otherwise 
approved by the owner of those facilities and the regulatory authority.


Sec.  816.181  What requirements apply to support facilities?

    (a) You must operate each support facility in accordance with the 
permit issued for the mine or coal preparation plant to which the 
facility is incident or from which its operation results.
    (b) In addition to the other provisions of this part, you must 
locate, maintain, and use support facilities in a manner that--
    (1) Prevents or controls erosion and siltation, water pollution, 
and damage to public or private property; and
    (2) To the extent possible using the best technology currently 
available--
    (i) Minimizes damage to fish, wildlife, and related environmental 
values; and
    (ii) Minimizes additional contributions of suspended solids to 
streamflow or runoff outside the permit area. Any such contributions 
may not be in excess of limitations of state or federal law.


Sec.  816.200  [Reserved]

0
35. Lift the suspension of Sec.  817.121(c)(4)(i) through (iv), and 
revise part 817 to read as follows:

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

Sec.
817.1 What does this part do?
817.2 What is the objective of this part?
817.10 Information collection.
817.11 What signs and markers must I post?
817.13 What special requirements apply to drilled holes, wells, and 
exposed underground openings?
817.14 [Reserved]
817.15 [Reserved]
817.22 How must I handle topsoil, subsoil, and other plant growth 
media?
817.34 How must I protect the hydrologic-balance?
817.35 How must I monitor groundwater?
817.36 How must I monitor surface water?
817.37 How must I monitor the biological condition of streams?
817.38 How must I handle acid-forming and toxic-forming materials?
817.39 What must I do with exploratory or monitoring wells when I no 
longer need them?
817.40 What responsibility do I have to replace water supplies?
817.41 Under what conditions may I discharge water and other 
materials into an underground mine?
817.42 What Clean Water Act requirements apply to discharges from my 
operation?
817.43 How must I construct and maintain diversions and other 
channels to convey water?
817.44 What restrictions apply to gravity discharges from 
underground mines?
817.45 What sediment control measures must I implement?
817.46 What requirements apply to siltation structures?
817.47 What requirements apply to discharge structures for 
impoundments?
817.49 What requirements apply to impoundments?
817.55 How must I rehabilitate sedimentation ponds, diversions, 
impoundments, and treatment facilities after I no longer need them?
817.56 What additional performance standards apply to mining 
activities conducted in or through an ephemeral stream?
817.57 What additional performance standards apply to mining 
activities conducted in or through a perennial or intermittent 
stream or on the surface of land within 100 feet of a perennial or 
intermittent stream?
817.59 How must I maximize coal recovery?
817.61 Use of explosives: General requirements.
817.62 Use of explosives: Preblasting survey.
817.64 Use of explosives: General performance standards.
817.66 Use of explosives: Blasting signs, warnings, and access 
control.
817.67 Use of explosives: Control of adverse effects.
817.68 Use of explosives: Records of blasting operations.
817.71 How must I dispose of excess spoil?
817.72 [Reserved]
817.73 [Reserved]
817.74 What special requirements apply to disposal of excess spoil 
on a preexisting bench?
817.81 How must I dispose of coal mine waste?
817.83 What special requirements apply to coal mine waste refuse 
piles?
817.84 What special requirements apply to coal mine waste impounding 
structures?
817.87 What special requirements apply to burning and burned coal 
mine waste?
817.89 How must I dispose of noncoal mine wastes?
817.95 How must I protect surface areas from wind and water erosion?
817.97 How must I protect and enhance fish, wildlife, and related 
environmental values?
817.99 What measures must I take to prevent and remediate 
landslides?
817.100 What are the standards for conducting reclamation 
contemporaneously with mining?
817.102 How must I backfill surface excavations and grade and 
configure the land surface?
817.106 What special provisions for backfilling, grading, and 
surface configuration apply to previously mined areas with a 
preexisting highwall?
817.107 What special provisions for backfilling, grading, and 
surface configuration apply to operations on steep slopes?
817.111 How must I revegetate areas disturbed by mining activities?
817.113 [Reserved]
817.114 [Reserved]
817.115 How long am I responsible for revegetation after planting?
817.116 What requirements apply to standards for determining 
revegetation success?
817.121 What measures must I take to prevent, control, or correct 
damage resulting from subsidence?
817.122 How and when must I provide notice of planned underground 
mining?
817.131 What actions must I take when I temporarily cease mining 
operations?
817.132 What actions must I take when I permanently cease mining 
operations?
817.133 What provisions concerning postmining land use apply to my 
operation?
817.150 What are the general requirements for haul and access roads?
817.151 What additional requirements apply to primary roads?
817.180 To what extent must I protect utility installations?
817.181 What requirements apply to support facilities?
817.200 [Reserved]

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


Sec.  817.1  What does this part do?

    This part sets forth the minimum environmental protection 
performance standards for underground mining activities under the Act.

[[Page 93419]]

Sec.  817.2  What is the objective of this part?

    This part is intended to ensure that all underground mining 
activities are conducted in an environmentally sound manner in 
accordance with the Act.


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 it control 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 underground 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. Send comments regarding burden 
estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 203-SIB, 1951 Constitution Avenue NW., Washington, DC 
20240.


Sec.  817.11  What signs and markers must I post?

    (a) General specifications. Signs and markers required under this 
part must--
    (1) Be posted and maintained by the person who conducts the 
underground mining activities;
    (2) Be of a uniform design throughout the operation;
    (3) Be easily seen and read;
    (4) Be made of durable material; and
    (5) Conform to local ordinances and codes.
    (b) Duration of maintenance. You must maintain signs and markers 
during the conduct of all activities to which they pertain.
    (c) Mine and permit identification signs. (1) You must display 
identification signs at each point of access from public roads to areas 
of surface operations and facilities on permit areas for underground 
mining activities.
    (2) The signs must show the name, business address, and telephone 
number of the person who conducts the underground mining activities and 
the identification number of the current SMCRA permit authorizing 
underground mining activities.
    (3) You must retain and maintain the signs until the release of all 
bonds for the permit area.
    (d) Perimeter markers. You must clearly mark the perimeter of all 
areas to be disturbed by surface operations or facilities before 
beginning mining activities on the surface of land within the permit 
area.
    (e) Stream buffer zone markers. You must clearly mark 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 to avoid disturbance by surface 
operations and facilities.
    (f) Topsoil markers. You must clearly mark stockpiles of topsoil, 
subsoil, or other plant growth media segregated and stored as required 
in the permit in accordance with Sec.  817.22 of this part.


Sec.  817.13  What special requirements apply to drilled holes, wells, 
and exposed underground openings?

    (a) Except as provided in paragraph (f) of this section, you must 
case, line, otherwise manage each exploration hole, drilled hole, 
borehole, shaft, well, or other exposed underground opening in a manner 
approved by the regulatory authority to--
    (1) Prevent acid or other toxic drainage from entering groundwater 
and surface water.
    (2) Minimize disturbance to the prevailing hydrologic balance.
    (3) Ensure the safety of people, livestock, fish and wildlife, and 
machinery in the permit area and the adjacent area.
    (b) You must prevent access to each temporarily inactive mine entry 
by constructing fences and barricades or other covering devices and 
posting signs that identify the hazardous nature of the opening. You 
must periodically inspect and maintain these fences and barricades in 
good operating condition.
    (c) You must temporarily seal each exploration hole, drilled hole, 
borehole, shaft, well, or other exposed underground opening that the 
approved permit identifies for use to monitor groundwater or to return 
underground development waste, coal processing waste, or water to 
underground workings until you are ready to actually use the hole or 
opening for that purpose.
    (d) You may retain a drilled hole or groundwater monitoring well 
for use as a water well under the conditions established in Sec.  
817.39 of this part.
    (e) Except as provided in paragraph (d) of this section, you must 
permanently close each exploration hole, drilled hole, borehole, well, 
or underground opening that mining activities uncover or expose within 
the permit area, unless the regulatory authority--
    (1) Approves use of the hole, well, or opening for water monitoring 
purposes; or
    (2) Authorizes other management of the hole or well.
    (f)(1) Except as provided in paragraph (d) of this section, you 
must cap, seal, backfill, or otherwise properly manage each shaft, 
drift, adit, tunnel, exploratory hole, entryway or other opening to the 
surface when no longer needed for monitoring or any other use that the 
regulatory authority approves after finding that the use would not 
adversely affect the environment or public health and safety.
    (2) Permanent closure measures taken under paragraph (f)(1) of this 
section must be--
    (i) Consistent with Sec.  75.1771 of this title;
    (ii) Designed to prevent access to the mine workings by people, 
livestock, fish and wildlife, and machinery; and
    (iii) Designed to keep acid or toxic mine drainage from entering 
groundwater or surface water.
    (g) The requirements of this section do not apply to holes drilled 
and used for blasting as part of surface operations.


Sec.  817.14  [Reserved]


Sec.  817.15  [Reserved]


Sec.  817.22  How must I handle topsoil, subsoil, and other plant 
growth media?

    (a) Removal and salvage. (1)(i) You, the permittee, must remove and 
salvage all topsoil and other soil materials identified for salvage and 
use as postmining plant growth media in the soil handling plan approved 
in the permit under Sec.  784.12(e) of this chapter.
    (ii) The soil handling plan approved in the permit under Sec.  
784.12(e) of this chapter will specify which soil horizons and 
underlying strata, or portions thereof, you must separately remove and 
salvage. The plan also will specify whether some or all of those soil 
horizons and soil substitute materials may or must be blended to 
achieve an improved plant growth medium.
    (iii) Except as provided in the soil handling plan approved in the 
permit under Sec.  784.12(e) of this chapter, you must complete removal 
and salvage of topsoil, subsoil, and organic matter in advance of any 
mining-related surface disturbance other than the minor disturbances 
identified in paragraph (a)(2) of this section.

[[Page 93420]]

    (2) Unless otherwise specified by the regulatory authority, you 
need not remove and salvage topsoil and other soil materials for minor 
disturbances that--
    (i) Occur at the site of small structures, such as power poles, 
signs, monitoring wells, or fence lines; or
    (ii) Will not destroy the existing vegetation and will not cause 
erosion.
    (b) Handling and storage. (1) You must segregate and separately 
handle the materials removed under paragraph (a) of this section to the 
extent required in the soil handling plan approved in the permit 
pursuant to Sec.  784.12(e). You must redistribute those materials 
promptly on regraded areas or stockpile them when prompt redistribution 
is impractical.
    (2) Stockpiled materials must--
    (i) Be selectively placed on a stable site within the permit area;
    (ii) Be protected from contaminants and unnecessary compaction that 
would interfere with revegetation;
    (iii) Be protected from wind and water erosion through prompt 
establishment and maintenance of an effective, quick-growing, non-
invasive vegetative cover or through other measures approved by the 
regulatory authority; and
    (iv) Not be moved until required for redistribution unless approved 
by the regulatory authority.
    (3) When stockpiling of organic matter and soil materials removed 
under paragraphs (a) and (f) of this section would be detrimental to 
the quality or quantity of those materials, you may temporarily 
redistribute those soil materials on an approved site within the permit 
area to enhance the current use of that site until the materials are 
needed for later reclamation, provided that--
    (i) Temporary redistribution will not permanently diminish the 
capability of the topsoil of the host site; and
    (ii) The redistributed material will be preserved in a condition 
more suitable for redistribution than if it were stockpiled.
    (c) Soil substitutes and supplements. When the soil handling plan 
approved in the permit in accordance with Sec.  784.12(e) of this 
chapter provides for the use of substitutes for or supplements to the 
existing topsoil or subsoil, you must salvage, store, and redistribute 
the overburden materials selected and approved for that purpose in a 
manner consistent with paragraphs (a), (b), and (e) of this section.
    (d) Site preparation. If necessary to reduce potential slippage of 
the redistributed material or to promote root penetration, you must 
rip, chisel-plow, deep-till, or otherwise mechanically treat backfilled 
and graded areas either before or after redistribution of soil 
materials, whichever time is agronomically appropriate.
    (e) Redistribution. (1) You must redistribute the materials 
removed, salvaged, and, if necessary, stored under paragraphs (a) 
through (c) of this section in a manner that--
    (i) Complies with the soil handling plan developed under Sec.  
784.12(e) of this chapter and approved as part of the permit.
    (ii) Is consistent with the approved postmining land use, the final 
surface configuration, and surface water drainage systems.
    (iii) Minimizes compaction of the topsoil and soil materials in the 
root zone to the extent possible and alleviates any excess compaction 
that may occur. You must limit your use of measures that result in 
increased compaction to those situations in which added compaction is 
necessary to ensure stability.
    (iv) Protects the materials from wind and water erosion before and 
after seeding and planting to the extent necessary to ensure 
establishment of a successful vegetative cover and to avoid causing or 
contributing to a violation of applicable state or tribal water quality 
standards or effluent limitations, including, but not limited to, water 
quality standards established under the authority of section 303(c) of 
the Clean Water Act, 33 U.S.C. 1313(c), and effluent limitations 
established in any National Pollutant Discharge Elimination System 
permit issued for the operation under section 402 of the Clean Water 
Act, 33 U.S.C. 1342, or its state or tribal counterpart.
    (v) Achieves an approximately uniform, stable thickness across the 
regraded area. The thickness may vary when consistent with the approved 
postmining land use, the final surface configuration, surface water 
drainage systems, and the requirement in Sec.  817.133 of this part for 
restoration of all disturbed areas to conditions that are capable of 
supporting the uses they were capable of supporting before any mining 
or higher or better uses approved under Sec.  784.24(b) of this 
chapter. The thickness also may vary when variations are necessary or 
desirable to achieve specific revegetation goals and ecological 
diversity, as set forth in the revegetation plan developed under Sec.  
784.12(g) of this chapter and approved as part of the permit.
    (2) You must use a statistically valid sampling technique to 
document that soil materials have been redistributed in the locations 
and depths required by the soil handling plan developed under Sec.  
784.12(e) of this chapter and approved as part of the permit.
    (3) The regulatory authority may choose not to require the 
redistribution of topsoil on the embankments of permanent impoundments 
or on the embankments of roads to be retained as part of the postmining 
land use if it determines that--
    (i) Placement of topsoil on those embankments is inconsistent with 
the requirement to use the best technology currently available to 
prevent sedimentation, and
    (ii) The embankments will be otherwise stabilized.
    (f) Organic matter. (1)(i) You must salvage duff, other organic 
litter, and vegetative materials such as tree tops and branches, small 
logs, and root balls. When practicable and consistent with the approved 
postmining land use, you may salvage organic matter and topsoil in a 
single operation that blends those materials.
    (ii) Paragraph (f)(1)(i) of this section does not apply to organic 
matter from areas identified under Sec.  783.19(b) of this chapter as 
containing significant populations of invasive or noxious non-native 
species. You must bury organic matter from those areas in the backfill 
at a sufficient depth to prevent regeneration or proliferation of 
undesirable species.
    (2)(i) Except as otherwise provided in paragraphs (f)(2)(ii) and 
(iii) and (3) of this section, you must redistribute the organic matter 
salvaged under paragraph (f)(1) of this section across the regraded 
surface or incorporate it into the soil to control erosion, promote 
growth of vegetation, serve as a source of native plant seeds and soil 
inoculants to speed restoration of the soil's ecological community, and 
increase the moisture retention capability of the soil.
    (ii) You may use vegetative debris to construct stream improvement 
or fish and wildlife habitat enhancement features consistent with the 
approved postmining land use.
    (iii) You may adjust the timing and pattern of redistribution of 
large woody debris to accommodate the use of mechanized tree-planting 
equipment on sites with a forestry postmining land use.
    (3)(i) The redistribution requirements of paragraph (f)(2)(i) of 
this section do not apply to those portions of the permit area--
    (A) Upon which row crops will be planted as part of the postmining 
land use before final bond release under Sec. Sec.  800.40 through 
800.43 of this chapter;

[[Page 93421]]

    (B) That will be intensively managed for hay production as part of 
the postmining land use before final bond release under Sec. Sec.  
800.40 through 800.43 of this chapter; or
    (C) Upon which structures, roads, other impervious surfaces, or 
water impoundments have been or will be constructed as part of the 
postmining land use before final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter.
    (ii) When the circumstances described in paragraph (f)(3)(i) of 
this section apply, you must make reasonable efforts to redistribute 
the salvaged organic matter on other portions of the permit area or use 
woody debris to construct stream improvement or fish and wildlife 
habitat enhancement features consistent with the approved postmining 
land use. If you demonstrate, and the regulatory authority finds, that 
it is not reasonably possible to use all available organic matter for 
these purposes, you may bury it in the backfill.
    (4)(i) You may not burn organic matter.
    (ii) You may bury organic matter in the backfill only as provided 
in paragraphs (f)(1)(ii) and (3)(ii) of this section.


Sec.  817.34  How must I protect the hydrologic balance?

    (a) You, the permittee, must conduct all underground mining and 
reclamation activities in a manner that will--
    (1) Minimize disturbance of the hydrologic balance within the 
permit and adjacent areas.
    (2) Prevent material damage to the hydrologic balance outside the 
permit area. Material damage resulting from subsidence may not 
constitute material damage to the hydrologic balance outside the permit 
area if that damage is repaired or corrected under Sec.  817.40 or 
Sec.  817.121(c) of this part.
    (3) Protect streams in accordance with Sec. Sec.  784.28 and 817.57 
of this chapter.
    (4) Assure the replacement of water supplies to the extent required 
by Sec.  817.40 of this part.
    (5) Protect existing water rights under state law.
    (6) Support approved postmining land uses in accordance with the 
terms and conditions of the approved permit and the performance 
standards of this part.
    (7) Comply with the hydrologic reclamation plan as submitted under 
Sec.  784.22 of this chapter and approved in the permit.
    (8) Protect groundwater quality by using best management practices 
to handle earth materials and runoff in a manner that avoids the 
formation of acid or toxic mine drainage and by managing excavations 
and other disturbances to prevent or control groundwater degradation. 
The regulatory authority will determine the meaning of the term ``best 
management practices'' on a site-specific basis. At a minimum, the term 
includes equipment, devices, systems, methods, and techniques that the 
Director determines to be best management practices.
    (9) Protect surface-water quality by using best management 
practices, as described in paragraph (a)(8) of this section, to handle 
earth materials, groundwater discharges, and runoff in a manner that--
    (i) Prevents postmining discharges of acid or toxic mine drainage.
    (ii) Prevents additional contribution of suspended solids to 
streamflow or runoff outside the permit area to the extent possible, 
using the best technology currently available.
    (iii) Otherwise prevents water pollution.
    (10) Protect surface-water quality and flow rates by handling earth 
materials and runoff in accordance with the steps outlined in the 
hydrologic reclamation plan and the surface-water runoff control plan 
approved in the permit in accordance with Sec. Sec.  784.22 and 780.29 
of this chapter, respectively.
    (b)(1) To the maximum extent practicable, you must use mining and 
reclamation practices that minimize water pollution, changes in flow, 
and adverse impacts on stream biota rather than relying upon water 
treatment to minimize those impacts.
    (2) You must install, use, and maintain any necessary water-
treatment facilities or water-quality controls if drainage control, 
materials handling, stabilization and revegetation of disturbed areas, 
diversion of runoff, mulching, and other reclamation and remedial 
practices are not adequate to meet the requirements of this section and 
Sec.  817.42 of this part.
    (c) The regulatory authority may require that you take preventive, 
remedial, or monitoring measures in addition to those set forth in this 
part to prevent material damage to the hydrologic balance outside the 
permit area.
    (d)(1) You must examine the runoff-control structures identified 
under Sec.  784.29 of this chapter within 72 hours of cessation of each 
occurrence of the following precipitation events:
    (i) In areas with an average annual precipitation of more than 26.0 
inches, an event of a size equal to or greater than that of a storm 
with a 2-year recurrence interval. You must use the appropriate 
regional Natural Resources Conservation Service synthetic storm 
distribution to determine peak flow for a storm with that recurrence 
interval.
    (ii) In areas with an average annual precipitation of 26.0 inches 
or less, a significant event of a size specified by the regulatory 
authority.
    (2)(i) You must prepare a report, which must be certified by a 
registered professional engineer, and submit the report to the 
regulatory authority within 30 days of cessation of the applicable 
precipitation event under paragraph (d)(1) of this section. The report 
must address the performance of the runoff-control structures, identify 
and describe any material damage to the hydrologic balance outside the 
permit area that occurred, and identify and describe the remedial 
measures taken in response to that damage.
    (ii) The report prepared under paragraph (d)(2)(i) of this section 
may include all precipitation events that occur within 30 days of 
cessation of the applicable precipitation event under paragraph (d)(1) 
of this section.


Sec.  817.35  How must I monitor groundwater?

    (a)(1)(i) You, the permittee, must monitor groundwater in the 
manner specified in the groundwater monitoring plan approved in the 
permit in accordance with Sec.  784.23(a) of this chapter.
    (ii) You must adhere to the data collection, analysis, and 
reporting requirements of paragraphs (a) and (b) of Sec.  777.13 of 
this chapter when conducting monitoring under this section.
    (2) At a minimum, you must conduct monitoring through mining, 
reclamation, and the revegetation responsibility period under Sec.  
817.115 of this part for the monitored area. Monitoring must continue 
beyond that minimum for any additional time needed for monitoring 
results to demonstrate that the criteria of Sec.  817.35(d)(1) and (2) 
of this section have been met, as determined by the regulatory 
authority.
    (b)(1) You must submit groundwater monitoring data to the 
regulatory authority every 3 months, or more frequently if prescribed 
by the regulatory authority.
    (2) Monitoring reports must include analytical results from each 
sample taken during the reporting period.
    (c) When the analysis of any sample indicates noncompliance with 
the terms and conditions of the permit, you must promptly notify the 
regulatory authority, take any applicable actions required under Sec.  
773.17(e) of this chapter, and implement any applicable

[[Page 93422]]

remedial measures required by the hydrologic reclamation plan approved 
in the permit in accordance with Sec.  784.22 of this chapter.
    (d) You may use the permit revision procedures of Sec.  774.13 of 
this chapter to request that the regulatory authority modify the 
groundwater monitoring requirements, including the parameters covered 
and the sampling frequency. The regulatory authority may approve your 
request if you demonstrate, using the monitoring data obtained under 
this section, that--
    (1) Future adverse changes in groundwater quantity or quality are 
unlikely to occur.
    (2) The operation has--
    (i) Minimized disturbance to the hydrologic balance in the permit 
and adjacent areas.
    (ii) Prevented material damage to the hydrologic balance outside 
the permit area.
    (iii) Preserved or restored the biological condition of perennial 
and intermittent streams within the permit and adjacent areas for which 
baseline biological condition data was collected under Sec.  
784.19(c)(6)(vi) of this chapter when groundwater from the permit area 
provides all or part of the base flow of those streams.
    (iv) Maintained or restored the availability and quality of 
groundwater to the extent necessary to support the approved postmining 
land uses within the permit area.
    (v) Protected or replaced the water rights of other users.
    (e) Whenever information available to the regulatory authority 
indicates that additional monitoring is necessary to protect the 
hydrologic balance, to detect hydrologic changes, or to meet other 
requirements of the regulatory program, the regulatory authority must 
issue an order under Sec.  774.10(b) of this chapter requiring that you 
revise your permit to include the necessary additional monitoring.
    (f) You must install, maintain, operate, and, when no longer 
needed, remove all equipment, structures, and other devices used in 
conjunction with monitoring groundwater, consistent with Sec. Sec.  
817.13 and 817.39 of this part.


Sec.  817.36  How must I monitor surface water?

    (a)(1)(i) You, the permittee, must monitor surface water in the 
manner specified in the surface-water monitoring plan approved in the 
permit in accordance with Sec.  784.23(b) of this chapter.
    (ii) You must adhere to the data collection, analysis, and 
reporting requirements of paragraphs (a) and (b) of Sec.  777.13 of 
this chapter when conducting monitoring under this section.
    (2) Monitoring must continue through mining and during reclamation 
until the regulatory authority releases the entire bond amount for the 
monitored area under Sec. Sec.  800.40 through 800.43 of this chapter.
    (b)(1) You must submit surface-water monitoring data to the 
regulatory authority every 3 months, or more frequently when prescribed 
by the regulatory authority.
    (2) Monitoring reports must include analytical results from each 
sample taken during the reporting period.
    (3) The reporting requirements of paragraph (b) of this section do 
not exempt you from meeting any National Pollutant Discharge 
Elimination System (NPDES) reporting requirements.
    (c) When the analysis of any sample indicates noncompliance with 
the terms and conditions of the permit, you must promptly notify the 
regulatory authority, take any applicable actions required under Sec.  
773.17(e) of this chapter, and implement any applicable remedial 
measures required by the hydrologic reclamation plan approved in the 
permit in accordance with Sec.  784.22 of this chapter.
    (d) You may use the permit revision procedures of Sec.  774.13 of 
this chapter to request that the regulatory authority modify the 
surface-water monitoring requirements (except those required by the 
NPDES permitting authority), including the parameters covered and the 
sampling frequency. The regulatory authority may approve your request 
if you demonstrate, using the monitoring data obtained under this 
section, that--
    (1) Future adverse changes in surface-water quantity or quality are 
unlikely to occur.
    (2) The operation has--
    (i) Minimized disturbance to the hydrologic balance in the permit 
and adjacent areas.
    (ii) Prevented material damage to the hydrologic balance outside 
the permit area.
    (iii) Preserved or restored the biological condition of perennial 
and intermittent streams within the permit and adjacent areas for which 
baseline biological condition data was collected under Sec.  
784.19(c)(6)(vi) of this chapter.
    (iv) Maintained or restored the availability and quality of surface 
water to the extent necessary to support the approved postmining land 
uses within the permit area.
    (v) Not precluded attainment of any designated use of surface water 
under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    (vi) Protected or replaced the water rights of other users.
    (e) Whenever information available to the regulatory authority 
indicates that additional monitoring is necessary to protect the 
hydrologic balance, to detect hydrologic changes, or to meet other 
requirements of the regulatory program, the regulatory authority must 
issue an order under Sec.  774.10(b) of this chapter requiring that you 
revise your permit to include the necessary additional monitoring.
    (f) You must install, maintain, operate, and, when no longer 
needed, remove all equipment, structures, and other devices used in 
conjunction with monitoring surface water.


Sec.  817.37  How must I monitor the biological condition of streams?

    (a)(1)(i) You must monitor the biological condition of perennial 
and intermittent streams in the manner specified in the plan approved 
in the permit in accordance with Sec.  784.23(c) of this chapter.
    (ii) You must adhere to the data collection, analysis, and 
reporting requirements of paragraphs (a) and (b) of Sec.  777.13 of 
this chapter and use a bioassessment protocol that complies with Sec.  
784.19(c)(6)(vii) of this chapter when conducting monitoring under this 
section.
    (2) Monitoring must continue through mining and during reclamation 
until the regulatory authority releases the entire bond amount for the 
monitored area under Sec. Sec.  800.40 through 800.43 of this chapter.
    (b) You must submit biological condition monitoring data to the 
regulatory authority on an annual basis, or more frequently if 
prescribed by the regulatory authority.
    (d) Whenever information available to the regulatory authority 
indicates that additional monitoring is necessary to meet the 
requirements of the regulatory program, the regulatory authority must 
issue an order under Sec.  774.10(b) of this chapter requiring that you 
revise your permit to include the necessary additional monitoring.


Sec.  817.38  How must I handle acid-forming and toxic-forming 
materials?

    (a) You, the permittee, must use the best technology currently 
available to handle acid-forming and toxic-forming materials and 
underground development waste in a manner that will avoid the creation 
of acid or toxic mine drainage into surface water and groundwater. At a 
minimum, you must comply with the plan approved in the permit in 
accordance with Sec.  784.12(n) of this chapter and adhere to disposal,

[[Page 93423]]

treatment, and storage practices that are consistent with other 
material handling and disposal provisions of this chapter.
    (b) You may temporarily store acid-forming and toxic-forming 
materials only if the regulatory authority specifically approves 
temporary storage as necessary and finds in writing in the permit that 
the proposed storage method will protect surface water and groundwater 
by preventing erosion, the formation of polluted runoff, and the 
infiltration of polluted water into aquifers. The regulatory authority 
must specify a maximum time for temporary storage, which may not exceed 
the period until permanent disposal first becomes feasible. In 
addition, storage must not result in any risk of water pollution, 
adverse impacts to the biology of perennial or intermittent streams, or 
other environmental damage.


Sec.  817.39  What must I do with exploratory or monitoring wells when 
I no longer need them?

    (a) Except as provided in paragraph (b) of this section, you, the 
permittee, must permanently seal exploratory or monitoring wells in a 
safe and environmentally sound manner in accordance with Sec.  817.13 
of this part before the regulatory authority may approve full release 
of the bond posted for the land on which the wells are located under 
Sec. Sec.  800.40 through 800.43 of this chapter.
    (b) With the prior approval of the regulatory authority, you may 
transfer wells to another party for further use. The conditions of the 
transfer must comply with state and local laws. You will remain 
responsible for the proper management of the wells until full release 
of the bond posted for the land on which the wells are located under 
Sec. Sec.  800.40 through 800.43 of this chapter.


Sec.  817.40  What responsibility do I have to replace water supplies?

    (a) Replacement of adversely-impacted water supplies. (1) You, the 
permittee, must promptly replace any drinking, domestic or residential 
water supply that is contaminated, diminished or interrupted as a 
result of underground mining activities that you conducted after 
October 24, 1992, if the affected well or spring was in existence 
before the date the regulatory authority received the permit 
application for the activities causing the loss, contamination or 
interruption.
    (2) The replacement supply must be equivalent to the quantity and 
quality of the premining supply.
    (3) Replacement includes provision of an equivalent water supply 
delivery system and payment of operation and maintenance expenses in 
excess of customary and reasonable delivery costs for the premining 
water supply. If you and the water supply owner agree, your obligation 
to pay operation and maintenance costs may be satisfied by a one-time 
payment in an amount that covers the present worth of the increased 
annual operation and maintenance costs for a period upon which you and 
the water supply owner agree.
    (4) If the affected water supply was not needed for the land use in 
existence at the time of loss, contamination, or diminution, you may 
satisfy the replacement requirements by demonstrating that a suitable 
alternative water source is available and could feasibly be developed, 
provided you obtain written concurrence from the owner of the affected 
water supply.
    (b) Measures to address anticipated adverse impacts to protected 
water supplies. For anticipated loss of or damage to a protected water 
supply, you must adhere to the requirements set forth in the permit in 
accordance with Sec.  784.22(b) of this chapter.
    (c) Measures to address unanticipated adverse impacts to protected 
water supplies. For unanticipated loss of or damage to a protected 
water supply, you must--
    (1) Provide an emergency temporary water supply within 24 hours of 
notification of the loss. The temporary supply must be adequate in 
quantity and quality to meet normal household needs.
    (2) Develop and submit a plan for a permanent replacement supply to 
the regulatory authority within 30 days of receiving notice that an 
unanticipated loss of or damage to a protected water supply has 
occurred.
    (3) Provide a permanent replacement water supply within 2 years of 
the date of receiving notice of an unanticipated loss of or damage to a 
protected water supply. The regulatory authority may grant an extension 
if you have made a good-faith effort to meet this deadline, but have 
been unable to do so for reasons beyond your control.
    (d) Basis for determination of adverse impact. The regulatory 
authority must use the baseline hydrologic and geologic information 
required under Sec.  784.19 of this chapter and all other available 
information to determine whether and to what extent the mining 
operation adversely impacted the damaged water supply.


Sec.  817.41  Under what conditions may I discharge water and other 
materials into an underground mine?

    (a) You may not discharge any water or other materials from your 
operation into an underground mine unless the regulatory authority 
specifically approves the discharge in writing, based upon a 
demonstration that--
    (1) The discharge will be made in a manner that--
    (i) Minimizes disturbances to the hydrologic balance within the 
permit area;
    (ii) Prevents material damage to the hydrologic balance outside the 
permit area, including the hydrologic balance of the area in which the 
underground mine receiving the discharge is located;
    (iii) Does not adversely impact the biology of perennial or 
intermittent streams; and
    (iv) Otherwise eliminates public hazards resulting from surface 
mining activities.
    (2) The discharge will not cause or contribute to a violation of 
applicable state or tribal water quality standards or effluent 
limitations, including, but not limited to, water quality standards 
established under the authority of section 303(c) of the Clean Water 
Act, 33 U.S.C. 1313(c), and effluent limitations established in any 
National Pollutant Discharge Elimination System permit issued for the 
operation under section 402 of the Clean Water Act, 33 U.S.C. 1342, or 
its state or tribal counterpart.
    (3)(i) The discharge will be at a known rate and of a quality that 
will meet the effluent limitations for pH and total suspended solids in 
40 CFR part 434.
    (ii) The regulatory authority may approve discharges of water that 
exceed the effluent limitations for pH and total suspended solids in 40 
CFR part 434 if the available evidence indicates that there is no 
direct hydrologic connection between the underground mine and other 
waters and that those exceedances will not be inconsistent with 
paragraph (a)(1) of this section.
    (4) The discharge will not cause or contribute to a violation of 
applicable state or tribal water quality standards for groundwater.
    (5) The Mine Safety and Health Administration has approved the 
discharge.
    (6) You have obtained written permission from the owner of the mine 
into which the discharge is to be made and you have provided a copy of 
that authorization to the regulatory authority.
    (b) Discharges are limited to the following materials:

[[Page 93424]]

    (1) Water.
    (2) Coal processing waste.
    (3) Fly ash from a coal-fired facility.
    (4) Sludge from an acid-mine-drainage treatment facility.
    (5) Flue-gas desulfurization sludge.
    (6) Inert materials used for stabilizing underground mines.
    (7) Underground mine development waste.


Sec.  817.42  What Clean Water Act requirements apply to discharges 
from my operation?

    (a) Nothing in this section, nor any action taken pursuant to this 
section, supersedes or modifies--
    (1) The authority or jurisdiction of federal, state, or tribal 
agencies responsible for administration, implementation, and 
enforcement of the Clean Water Act, 33 U.S.C. 1251 et seq.; or
    (2) The decisions that those agencies make under the authority of 
the Clean Water Act, 33 U.S.C. 1251 et seq., including decisions on 
whether a particular set of facts constitutes a violation of the Clean 
Water Act.
    (b) Discharges of water from underground mining activities and from 
areas disturbed by underground mining activities must--
    (1) Be made in compliance with all applicable water quality laws 
and regulations, including the effluent limitations established in the 
National Pollutant Discharge Elimination System permit for the 
operation under section 402 of the Clean Water Act, 33 U.S.C. 1342, or 
its state or tribal counterpart. The regulatory authority must notify 
the appropriate Clean Water Act authority whenever it takes action to 
enforce a permit condition required by Sec.  773.17(i) of this chapter 
with respect to an effluent limitation in a National Pollutant 
Discharge Elimination System permit. The regulatory authority must 
initiate coordination with the Clean Water Act authority before taking 
enforcement action if coordination is needed to determine whether a 
violation of the National Pollutant Discharge Elimination System permit 
exists.
    (2) Not cause or contribute to a violation of applicable water 
quality standards established under the authority of section 303(c) of 
the Clean Water Act, 33 U.S.C. 1313(c), or other applicable state or 
tribal water quality standards.
    (c) Discharges of overburden, coal mine waste, and other materials 
into waters subject to the jurisdiction of the Clean Water Act, 33 
U.S.C. 1251 et seq., must be made in compliance with section 404 of the 
Clean Water Act, 33 U.S.C. 1344, and its implementing regulations.
    (d) The regulatory authority will coordinate an investigation with 
the appropriate Clean Water Act authority whenever information 
available to the regulatory authority indicates that mining activities 
may be causing or contributing to a violation of the water quality 
standards to which paragraph (b)(2) of this section refers, or to a 
violation of section 404 of the Clean Water Act, 33 U.S.C. 1344, and 
its implementing regulations. If, after coordination with the 
appropriate Clean Water Act authority, it is determined that mining 
activities are causing or contributing to a Clean Water Act violation, 
the regulatory authority must, in addition to any action taken by the 
appropriate Clean Water Act authority, independently take enforcement 
or other appropriate action to correct the cause of the violation.
    (e) You must construct water treatment facilities for discharges 
from the operation as soon as the need for those facilities becomes 
evident.
    (f)(1) You must remove precipitates and otherwise maintain all 
water treatment facilities requiring the use of settling ponds or 
lagoons as necessary to maintain the functionality of those facilities.
    (2) You must dispose of all precipitates removed from facilities 
under paragraph (f)(1) of this section either in an approved solid 
waste landfill or within the permit area in accordance with a plan 
approved by the regulatory authority.
    (g) You must operate and maintain water treatment facilities until 
the regulatory authority authorizes removal based upon monitoring data 
demonstrating that influent to the facilities meets all applicable 
effluent limitations without treatment and that discharges would not 
cause or contribute to a violation of applicable water quality 
standards established under the authority of section 303(c) of the 
Clean Water Act, 33 U.S.C. 1313(c), or other applicable state or tribal 
water quality standards if left untreated.


Sec.  817.43  How must I construct and maintain diversions?

    (a) Classification. The term diversion applies to the following 
categories of channels that convey surface water flow:
    (1) Diversion Ditches. Diversion ditches are channels constructed 
to convey surface water runoff or other flows from areas not disturbed 
by mining activities away from or around disturbed areas. Diversion 
ditches may be temporary or permanent.
    (i) You must remove a temporary diversion ditch as soon as it is no 
longer needed. You must restore the land disturbed by the removal 
process in accordance with the approved permit and Sec.  817.55 of this 
part. Before removing a temporary diversion ditch, you must modify or 
remove downstream water treatment facilities previously protected by 
the ditch to prevent overtopping or failure of the facilities. You must 
continue to maintain water treatment facilities until they are no 
longer needed.
    (ii) You may retain a diversion ditch as a permanent structure if 
you demonstrate and the regulatory authority finds that retention of 
that diversion ditch would--
    (A) Be environmentally beneficial;
    (B) Meet the requirements of the reclamation plan approved under 
Sec.  784.12 of this chapter; and
    (C) Be consistent with the surface drainage pattern restoration 
requirements of Sec. Sec.  817.56 and 817.57 of this part.
    (iii) When approved in the permit, you may divert the following 
flows away from the disturbed area by means of temporary or permanent 
diversion ditches without treatment:
    (A) Any surface runoff or other flows from mined areas abandoned 
before May 3, 1978.
    (B) Any surface runoff or other flows from undisturbed areas.
    (C) Any surface runoff or other flows from reclaimed areas for 
which the criteria of Sec.  817.46 of this part for siltation structure 
removal have been met.
    (2) Stream diversions. Stream diversions are temporary or permanent 
relocations of perennial or intermittent streams. Diversions of 
perennial and intermittent streams must comply with the applicable 
requirements of this section, Sec.  784.28 of this chapter, and Sec.  
817.57 of this part.
    (i) You must remove temporary stream diversions after the original 
stream channel is reconstructed after mining. As set forth in Sec.  
784.28(f) of this chapter, different requirements apply to temporary 
stream diversions depending on whether they will be in existence for 
less or more than 3 years.
    (ii) Permanent stream diversions remain in their locations 
following mining and reclamation.
    (3) Conveyances and channels within the disturbed area. All other 
conveyances and channels that are constructed within the disturbed area 
to transport surface water are also diversions. During mining, these 
channels or conveyances must deliver all captured surface water flow to 
siltation structures.

[[Page 93425]]

    (i) You must remove temporary conveyances or channels when they are 
no longer needed for their intended purpose.
    (ii) When approved in the permit, you may retain conveyances or 
channels that support or enhance the approved postmining land use.
    (b) Design criteria. When the permit requires the use of siltation 
structures for sediment control, you must construct diversions designed 
to the standards of this section to convey runoff from the disturbed 
area to the siltation structures unless the topography will naturally 
direct all surface runoff or other flows to a siltation structure.
    (1) You must design all diversions to--
    (i) Ensure the safety of the public.
    (ii) Minimize adverse impacts to the hydrologic balance, including 
the biology of perennial and intermittent streams, within the permit 
and adjacent areas.
    (iii) Prevent material damage to the hydrologic balance outside the 
permit area.
    (2) You must design, locate, construct, maintain, and use each 
diversion and its appurtenant structures to--
    (i) Be stable.
    (ii) Provide and maintain the capacity to safely pass the peak flow 
of surface runoff from a 2-year, 6-hour precipitation event for a 
temporary diversion and a 10-year, 6-hour precipitation event for a 
permanent diversion. Flow capacity for stream diversions includes both 
the in-channel capacity and the flood-prone area overbank capacity. 
Flow capacity for diversion ditches and conveyances or channels 
includes only in-channel capacity, with adequate freeboard to prevent 
out-of-channel flow. You must use the appropriate regional Natural 
Resources Conservation Service synthetic storm distribution to 
determine peak flows.
    (iii) Prevent, to the extent possible using the best technology 
currently available, additional contributions of suspended solids to 
streamflow or runoff outside the permit area.
    (iv) Comply with all applicable federal, state, tribal, and local 
laws and regulations.
    (c) Application to Sec.   817.41. You may not divert surface runoff 
or other flows into underground mines without approval of the 
regulatory authority under Sec.  817.41 of this part.
    (d) Additional requirements. The regulatory authority may specify 
additional design criteria for diversions to meet the requirements of 
this section.


Sec.  817.44  What restrictions apply to gravity discharges from 
underground mines?

    (a)(1) You must locate and manage surface entries and accesses to 
underground workings to prevent or control gravity discharge of water 
from the mine.
    (2) The regulatory authority may approve gravity discharges of 
water from an underground mine, other than a drift mine subject to 
paragraph (b) of this section, if you--
    (i) Demonstrate that the untreated or treated discharge will comply 
with the performance standards of this part and any additional National 
Pollutant Discharge Elimination System permit requirements under the 
Clean Water Act.
    (ii) Design the discharge control structure to prevent a mine pool 
blowout.
    (3) You must construct and maintain the discharge control structure 
in accordance with the design approved by the regulatory authority and 
any other conditions imposed by the regulatory authority.
    (b) Notwithstanding anything to the contrary in paragraph (a) of 
this section, you must locate the surface entries and accesses of drift 
mines first used after the implementation of a state, federal, or 
federal lands program under this chapter and located in acid-producing 
or iron-producing coal seams in such a manner as to prevent any gravity 
discharge from the mine.


Sec.  817.45  What sediment control measures must I implement?

    (a) You must design, construct, and maintain appropriate sediment 
control measures, using the best technology currently available to--
    (1) Prevent, to the extent possible, additional contributions of 
sediment to streamflow or to runoff outside the permit area.
    (2) Meet the applicable effluent limitations referenced in Sec.  
817.42(a) of this part.
    (3) Minimize erosion to the extent possible.
    (b) Sediment control measures include practices carried out within 
the disturbed area. Sediment control measures consist of the use of 
proper mining and reclamation methods and sediment control practices, 
singly or in combination. Sediment control methods include but are not 
limited to--
    (1) Disturbing the smallest practicable area at any one time during 
the mining operation through progressive backfilling, grading, and 
prompt revegetation.
    (2) Shaping and stabilizing the backfilled material to promote a 
reduction in the rate and volume of runoff.
    (3) Retaining sediment within disturbed areas.
    (4) Diverting surface runoff from undisturbed areas away from 
disturbed areas.
    (5) Using protected channels or pipes to convey surface runoff from 
undisturbed areas through disturbed areas so as not to cause additional 
erosion.
    (6) Using straw dikes, riprap, check dams, mulches, vegetative 
sediment filters, dugout ponds, and other measures that reduce overland 
flow velocity, reduce runoff volume, or trap sediment.
    (7) Treating surface runoff collected in sedimentation ponds with 
flocculants or other chemicals.


Sec.  817.46  What requirements apply to siltation structures?

    (a) Scope. For the purpose of this section only, the phrase 
``disturb the land surface'' does not include those areas--
    (1) In which the only underground mining activities conducted on 
the land surface consist of diversions, siltation structures, or roads 
that are designed, constructed, and maintained in accordance with this 
part; and
    (2) For which you do not plan to otherwise disturb the land surface 
upgradient of the diversion, siltation structure, or road.
    (b) General requirements. (1) When siltation structures will be 
used to achieve the requirements of Sec.  817.45 of this part, you must 
construct those structures before beginning any underground mining 
activities that will disturb the land surface.
    (2) Upon completion of construction of a siltation structure, a 
qualified registered professional engineer, or, in any state that 
authorizes land surveyors to prepare and certify plans in accordance 
with Sec.  784.25(a) of this chapter, a qualified registered 
professional land surveyor, must certify that the structure has been 
constructed as designed and as approved in the reclamation plan in the 
permit.
    (3) Any siltation structure that impounds water must be designed, 
constructed and maintained in accordance with Sec.  817.49 of this 
chapter.
    (4) You must maintain siltation structures until removal is 
authorized by the regulatory authority and the disturbed area has been 
stabilized and revegetated.
    (5)(i) When a siltation structure is removed, you must regrade the 
land upon which the structure was located

[[Page 93426]]

and revegetate the land in accordance with the reclamation plan and 
Sec. Sec.  817.111 and 817.116 of this chapter.
    (ii) Paragraph (b)(5)(i) of this section does not apply to 
sedimentation ponds approved by the regulatory authority for retention 
as permanent impoundments under Sec.  817.49(b) of this part if the 
maintenance requirements of Sec.  800.42(c)(5) of this chapter are met.
    (c) Sedimentation ponds. (1) When used, sedimentation ponds must--
    (i) Be located as near as possible to the disturbed area and 
outside perennial or intermittent stream channels unless approved by 
the regulatory authority in the permit in accordance with Sec. Sec.  
784.28 and 817.57(c) of this chapter.
    (ii) Be designed, constructed, and maintained to--
    (A) Provide adequate sediment storage volume.
    (B) Provide adequate detention time to allow the effluent from the 
ponds to meet applicable effluent limitations.
    (C) Contain or treat the 10-year, 24-hour precipitation event 
(``design event'') unless a lesser design event is approved by the 
regulatory authority based on terrain, climate, other site-specific 
conditions, and a demonstration that the effluent limitations 
referenced in Sec.  817.42 of this part will be met.
    (D) Provide a nonclogging dewatering device adequate to maintain 
the detention time required under paragraph (c)(1)(ii)(B) of this 
section.
    (E) Minimize short circuiting to the extent possible.
    (F) Provide periodic sediment removal sufficient to maintain 
adequate volume for the design event.
    (G) Ensure against excessive settlement.
    (H) Be free of sod, large roots, frozen soil, and acid-forming or 
toxic-forming materials.
    (I) Be compacted properly.
    (2) Spillways. A sedimentation pond must include either a 
combination of principal and emergency spillways or a single spillway 
configured as specified in Sec.  817.49(a)(9) of this part.
    (d) Other treatment facilities. (1) You must design other treatment 
facilities to treat the 10-year, 24-hour precipitation event unless the 
regulatory authority approves a lesser design event based upon terrain, 
climate, other site-specific conditions, and a demonstration that the 
effluent limitations referenced in Sec.  817.42 of this part will be 
met.
    (2) You must design other treatment facilities in accordance with 
the applicable requirements of paragraph (c) of this section.
    (e) Exemptions. The regulatory authority may grant an exemption 
from the requirements of this section if--
    (1) The disturbed drainage area within the total disturbed area is 
small; and
    (2) You demonstrate that neither siltation structures nor alternate 
sediment control measures are necessary for drainage from the disturbed 
drainage area to comply with Sec.  817.42 of this part.


Sec.  817.47  What requirements apply to discharge structures for 
impoundments?

    You must control discharges from sedimentation ponds, permanent and 
temporary impoundments, coal mine waste impounding structures, and 
diversions by energy dissipators, riprap channels, and other devices 
when necessary to reduce erosion, to prevent deepening or enlargement 
of stream channels, to control meander migration, or to minimize 
disturbance of the hydrologic balance. You must design discharge 
structures according to standard engineering design procedures.


Sec.  817.49  What requirements apply to impoundments?

    (a) Requirements that apply to both permanent and temporary 
impoundments.--
    (1) MSHA requirements. An impoundment meeting the criteria of Sec.  
77.216(a) of this title must comply with the requirements of Sec.  
77.216 of this title and this section.
    (2) Stability. (i) An impoundment that meets the criteria of Sec.  
77.216(a) of this title or that includes a dam with a significant or 
high hazard potential classification under Sec.  784.25(a) of this 
chapter must have a minimum static safety factor of 1.5 for a normal 
pool with steady state seepage saturation conditions and a seismic 
safety factor of at least 1.2.
    (ii) Impoundments not included in paragraph (a)(2)(i) of this 
section, except for a coal mine waste impounding structure, must have a 
minimum static safety factor of 1.3 for a normal pool with steady state 
seepage saturation conditions or meet the requirements of Sec.  
784.25(e)(2) of this chapter.
    (3) Freeboard. (i) Impoundments must have adequate freeboard to 
resist overtopping by waves that occur in conjunction with the typical 
increase in water elevation at the downwind edge of any body of water, 
waves resulting from sudden influxes of surface runoff from 
precipitation events, or waves resulting from any combination of these 
events or other events.
    (ii) An impoundment that includes a dam with a significant or high 
hazard potential classification under Sec.  784.25(a) of this chapter 
must comply with the freeboard hydrograph criteria in the following 
table:

             Minimum Auxiliary Spillway Hydrologic Criteria
------------------------------------------------------------------------
                                     Design precipitation event for--
 Hazard potential classification ---------------------------------------
          of embankment           Auxiliary spillway       Freeboard
                                      hydrograph          hydrograph
------------------------------------------------------------------------
Significant.....................  P100\1\+ 0.12(PMP   P100 + 0.40(PMP-
                                   \2\-P100).          P100)
High............................  P100 + 0.26(PMP-    PMP
                                   P100).
------------------------------------------------------------------------
\1\ P100 = Precipitation event for 100-year return interval.
\2\ PMP = Probable Maximum Precipitation event.

    (4) Foundation. (i) Foundations and abutments for an impounding 
structure must be stable during all phases of construction and 
operation and must be designed based on adequate and accurate 
information on the foundation and abutment conditions.
    (ii) You must conduct foundation and abutment investigations, as 
well as any necessary laboratory testing of foundation material, to 
determine the design requirements for foundation stability and control 
of underseepage for an impoundment that includes a dam with a 
significant or high hazard potential classification under Sec.  
784.25(a) of this chapter.
    (iii) You must remove all vegetative and organic materials from the 
foundation area and excavate and prepare the foundation area to resist 
failure. You must install cutoff trenches if necessary to ensure 
stability.
    (5) Protection of impoundment slopes. You must take measures to 
protect impoundment slopes from surface

[[Page 93427]]

erosion and the adverse impacts of a sudden drawdown.
    (6) Protection of embankment faces. Faces of embankments and 
surrounding areas shall be vegetated, except that faces where water is 
impounded may be riprapped or otherwise stabilized in accordance with 
accepted design practices.
    (7) Spillways. An impoundment must include either a combination of 
principal and emergency spillways or a single spillway configured as 
specified in paragraph (a)(7)(i) of this section, designed and 
constructed to safely pass the applicable design precipitation event 
specified in paragraph (a)(7)(ii) of this section, except as set forth 
in paragraph (c)(2) of this section.
    (i) The regulatory authority may approve a single open-channel 
spillway that is:
    (A) Of nonerodible construction and designed to carry sustained 
flows; or
    (B) Earth- or grass-lined and designed to carry short-term, 
infrequent flows at non-erosive velocities where sustained flows are 
not expected.
    (ii) Except as specified in paragraph (c)(2) of this section, the 
required design precipitation event for an impoundment meeting the 
spillway requirements of paragraph (a)(7) of this section is:
    (A) For an impoundment that includes a dam with a significant or 
high hazard potential classification under Sec.  784.25(a) of this 
chapter, the design precipitation event specified in the auxiliary 
spillway hydrograph column in the table in paragraph (a)(3)(ii) of this 
section, or any greater event specified by the regulatory authority.
    (B) For an impoundment meeting the criteria of Sec.  77.216(a) of 
this title, the 100-year, 6-hour event, or any greater event specified 
by the regulatory authority.
    (C) For an impoundment not included in paragraphs (a)(7)(ii) (A) 
and (B) of this section, the 25-year, 6-hour event, or any greater 
event specified by the regulatory authority.
    (8) Highwalls. The vertical portion of any highwall remnant within 
the impoundment must be located far enough below the low-water line 
along the full extent of the highwall to provide adequate safety and 
access for the proposed water users.
    (9) Inspections. Except as provided in paragraph (a)(9)(iv) of this 
section, a qualified registered professional engineer or other 
qualified professional specialist under the direction of a professional 
engineer must inspect each impoundment as provided in paragraph 
(a)(9)(i) of this section. The professional engineer or specialist must 
be experienced in the construction of impoundments.
    (i) Inspections must be made regularly during construction, upon 
completion of construction, and at least yearly until removal of the 
structure or release of the performance bond.
    (ii) After each inspection required by paragraph (a)(9)(i) of this 
section, the qualified registered professional engineer, or qualified 
registered professional land surveyor as specified in paragraph 
(a)(9)(iv) of this section, must promptly provide to the regulatory 
authority a certified report that the impoundment has been constructed 
and/or maintained as designed and in accordance with the approved plan 
and this chapter. The report must include a discussion of any 
appearance of instability, any structural weakness or other hazardous 
condition, the depth and elevation of any impounded waters, the 
existing storage capacity, any existing or required monitoring 
procedures and instrumentation, and any other aspects of the structure 
affecting stability.
    (iii) You must retain a copy of the report at or near the minesite.
    (iv) In any state that authorizes land surveyors to prepare and 
certify plans in accordance with Sec.  784.25(b)(1) of this chapter, a 
qualified registered professional land surveyor may inspect any 
temporary or permanent impoundment that does not meet the criteria of 
Sec.  77.216(a) of this title, or that is not classified as having a 
significant or high hazard potential under Sec.  784.25(a) of this 
chapter, and certify and submit the report required by paragraph 
(a)(9)(ii) of this section, except that a qualified registered 
professional engineer must certify all coal mine waste impounding 
structures covered by Sec.  817.84 of this chapter. The professional 
land surveyor must be experienced in the construction of impoundments.
    (10) Examinations. (i) Impoundments that meet the criteria of Sec.  
77.216 of this title, or that are classified as having a significant or 
high hazard potential under Sec.  784.25(a) of this chapter, must be 
examined in accordance with Sec.  77.216-3 of this title.
    (ii) Impoundments that are not subject to Sec.  77.216 of this 
title, or that are not classified as having a significant or high 
hazard potential under Sec.  784.25(a) of this chapter, must be 
examined at least quarterly. A qualified person designated by the 
operator must examine impoundments for the appearance of structural 
weakness and other hazardous conditions.
    (11) Emergency procedures. If any examination or inspection 
discloses that a potential hazard exists, the person who examined the 
impoundment must promptly inform the regulatory authority of the 
finding and of the emergency procedures formulated for public 
protection and remedial action. The regulatory authority must be 
notified immediately if adequate procedures cannot be formulated or 
implemented. The regulatory authority then must notify the appropriate 
agencies that other emergency procedures are required to protect the 
public.
    (b) Requirements that apply only to permanent impoundments. A 
permanent impoundment of water may be created if authorized by the 
regulatory authority in the approved permit based upon the following 
demonstration:
    (1) The size and configuration of the impoundment will be adequate 
for its intended purposes.
    (2) The quality of impounded water will be suitable on a permanent 
basis for its intended use and, after reclamation, discharges from the 
impoundment will not cause or contribute to a violation of applicable 
state or tribal water quality standards or effluent limitations, 
including, but not limited to, water quality standards established 
under the authority of section 303(c) of the Clean Water Act, 33 U.S.C. 
1313(c), and effluent limitations established in the National Pollutant 
Discharge Elimination System permit for the operation under section 402 
of the Clean Water Act, 33 U.S.C. 1342, or its state or tribal 
counterpart.
    (3) The water level will be sufficiently stable and be capable of 
supporting the intended use.
    (4) Final grading will provide for adequate safety and access for 
proposed water users.
    (5) The impoundment will not result in diminution of the quality or 
quantity of surface water or groundwater used by surrounding landowners 
for agricultural, industrial, recreational, or domestic uses.
    (6) The impoundment will be suitable for the approved postmining 
land use.
    (7) Approval of the impoundment will not result in retention of 
spoil piles or ridges that are inconsistent with the definition of 
approximate original contour.
    (8) Approval of the impoundment will not result in the creation of 
an excess spoil fill elsewhere within the permit area.
    (9) The impoundment has been designed with dimensions, features, 
and other characteristics that will enhance fish and wildlife habitat 
to the extent

[[Page 93428]]

that doing so is not inconsistent with the intended use.
    (c) Requirements that apply only to temporary impoundments that 
rely primarily upon storage. (1) In lieu of meeting the requirements in 
paragraph (a)(7)(i) of this section, the regulatory authority may 
approve an impoundment that relies primarily on storage to control the 
runoff from the design precipitation event when you demonstrate, and a 
qualified registered professional engineer or qualified registered 
professional land surveyor in accordance with Sec.  784.25(b) of this 
chapter certifies, that the impoundment will safely control the design 
precipitation event.
    (2) You must use current prudent engineering practices to safely 
remove the water from an impoundment constructed in accordance with 
paragraph (c)(1) of this section.
    (3) An impoundment constructed in accordance with paragraph (c)(1) 
of this section must be located where failure would not be expected to 
cause loss of life or serious property damage, unless the impoundment 
meets one of the following exceptions:
    (i) An impoundment that meets the criteria of Sec.  77.216(a) of 
this title, or that is classified as having a significant or high 
hazard potential under Sec.  784.25(a) of this chapter, and is designed 
to control the precipitation of the probable maximum precipitation of a 
6-hour event, or any greater event specified by the regulatory 
authority.
    (ii) An impoundment not included in paragraph (c)(3)(i) of this 
section that is designed to control the precipitation of the 100-year, 
6-hour event, or any greater event specified by the regulatory 
authority.


Sec.  817.55  What must I do with sedimentation ponds, diversions, 
impoundments, and treatment facilities after I no longer need them?

    (a) Before seeking final bond release under Sec.  800.42(d) of this 
chapter, you must--
    (1) Remove all temporary structures and reclaim the land upon which 
those structures were located in accordance with the approved permit; 
and
    (2) Ensure that all sedimentation ponds, diversions, and 
impoundments approved for retention after final bond release have been 
maintained properly and meet all applicable requirements of the 
approved permit and this chapter for retention as permanent structures. 
You must renovate the structures if necessary to meet the requirements 
for retention.
    (b) [Reserved]


Sec.  817.56  What additional performance standards apply to mining 
activities conducted in or through an ephemeral stream?

    (a) Compliance with federal, state, and tribal water quality laws 
and regulations. (1) You may conduct mining activities in or affecting 
waters subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 
1251 et seq., only if you first obtain all necessary authorizations, 
certifications, and permits under that law.
    (2) Mining activities must comply with all applicable state and 
tribal laws and regulations concerning surface water and groundwater.
    (b) Postmining surface drainage pattern and stream-channel 
configuration. If you mine through an ephemeral stream, you must 
construct a postmining surface drainage pattern and stream-channel 
configurations that are consistent with the surface drainage pattern 
and stream-channel configurations approved in the permit in accordance 
with Sec.  784.27 of this chapter.
    (c) Establishment of streamside vegetative corridors. (1) If you 
mine through an ephemeral stream, you must establish a vegetative 
corridor at least 100 feet wide along each bank of the reconstructed 
stream channel. The 100-foot distance must be measured horizontally on 
a line perpendicular to the stream, beginning at the ordinary high 
water mark. The corridor must be consistent with natural vegetation 
patterns.
    (2) When planting the streamside vegetative corridors required by 
paragraph (c)(1) of this section, you must--
    (i) Use appropriate native species adapted to the area, unless an 
agency responsible for implementing section 404 of the Clean Water Act, 
33 U.S.C. 1344, requires the use of non-native species.
    (ii) Ensure that the species planted are consistent with the 
revegetation plan approved in the permit.
    (iii) Include appropriate native hydrophytic vegetation, vegetation 
typical of floodplains, or hydrophilic vegetation characteristic of 
riparian areas and wetlands to the extent that the corridor contains 
suitable habitat for those species and the stream and the geomorphology 
of the area are capable of supporting vegetation of that nature.
    (iv) Use native trees and shrubs when planting areas within the 
streamside corridor that were forested at the time of application or 
that would revert to forest under conditions of natural succession.
    (3) Paragraphs (c)(1) and (2) of this section do not require 
planting of hydrophytic or hydrophilic species within those portions of 
streamside corridors where the stream, soils, or climate are incapable 
of providing the moisture or other growing conditions needed to support 
and sustain hydrophytic or hydrophilic species. In those situations, 
you must plant the corridor with appropriate native species that are 
consistent with the baseline information concerning natural streamside 
vegetation included in the permit application under Sec.  783.19 of 
this chapter, unless otherwise directed by an agency responsible for 
implementing section 404 of the Clean Water Act, 33 U.S.C. 1344.
    (4) Paragraphs (c)(1) through (3) of this section do not apply to--
    (i) Prime farmland historically used for cropland; or
    (ii) Situations in which establishment of a streamside vegetative 
corridor comprised of native species would be incompatible with an 
approved postmining land use that is implemented before final bond 
release under Sec. Sec.  800.40 through 800.43 of this chapter.


Sec.  817.57  What additional performance standards apply to mining 
activities conducted in or through a perennial or intermittent stream 
or on the surface of land within 100 feet of a perennial or 
intermittent stream?

    (a) Compliance with federal, state, and tribal water quality laws 
and regulations. (1) You may conduct mining activities in or affecting 
waters subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 
1251 et seq., only if you first obtain all necessary authorizations, 
certifications, and permits under that law.
    (2) Mining activities must comply with all applicable state and 
tribal laws and regulations concerning surface water and groundwater.
    (b) Prohibition on mining in or within 100 feet of a perennial or 
intermittent stream. You may not conduct mining activities in or 
through a perennial or intermittent stream, or that would disturb the 
surface of land within 100 feet of a perennial or intermittent stream, 
unless the regulatory authority authorizes you to do so in the permit 
after making the findings required under Sec.  784.28 of this chapter. 
The 100-foot distance must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark.
    (c) Postmining surface drainage pattern and stream-channel 
configuration. (1) If you mine through or

[[Page 93429]]

permanently divert a perennial or intermittent stream, you must 
construct a postmining surface drainage pattern and stream-channel 
configurations that are consistent with the surface drainage pattern 
and stream-channel configurations approved in the permit in accordance 
with Sec.  784.28 of this chapter.
    (2) Upon completion of construction of a stream-channel diversion 
for a perennial or intermittent stream, or reconstruction of a stream 
channel after mining through a perennial or intermittent stream, you 
must obtain a certification from a qualified registered professional 
engineer that the stream-channel diversion or reconstructed stream 
channel has been constructed in accordance with the design approved in 
the permit and that it meets all engineering-related requirements of 
this section. This certification may be limited to the location, 
dimensions, and physical characteristics of the stream channel.
    (d) Establishment of streamside vegetative corridors. (1)(i) If you 
mine through a perennial or intermittent stream, you must establish a 
vegetative corridor at least 100 feet wide along each bank of the 
reconstructed stream channel. The corridor must be consistent with 
natural vegetation patterns.
    (ii) You must establish a vegetative corridor on any land that you 
disturb within 100 feet of a perennial or intermittent stream. The 
corridor must be consistent with natural vegetation patterns.
    (iii) If you divert a perennial or intermittent stream, you must 
establish a vegetative corridor at least 100 feet wide along each bank 
of the stream-channel diversion, with the exception of temporary 
diversions that will be in place less than 3 years. The corridor must 
be consistent with natural vegetation patterns.
    (iv) The 100-foot distance mentioned in paragraphs (d)(1)(i) 
through (iii) of this section must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark.
    (2) When planting the streamside vegetative corridors required by 
paragraph (d)(1) of this section, you must--
    (i) Use appropriate native species adapted to the area, unless an 
agency responsible for implementing section 404 of the Clean Water Act, 
33 U.S.C. 1344, requires the use of non-native species.
    (ii) Ensure that the species planted are consistent with the 
revegetation plan approved in the permit.
    (iii) Include appropriate native hydrophytic vegetation, vegetation 
typical of floodplains, or hydrophilic vegetation characteristic of 
riparian areas and wetlands to the extent that the corridor contains 
suitable habitat for those species and the stream and the geomorphology 
of the area are capable of supporting vegetation of that nature.
    (iv) Use native trees and shrubs when planting areas within the 
streamside corridor that were forested at the time of application or 
that would revert to forest under conditions of natural succession.
    (3) Paragraphs (d)(1) and (2) of this section do not require 
planting of hydrophytic or hydrophilic species within those portions of 
streamside corridors where the stream, soils, or climate are incapable 
of providing the moisture or other growing conditions needed to support 
and sustain hydrophytic or hydrophilic species. In those situations, 
you must plant the corridor with appropriate native species that are 
consistent with the baseline information concerning natural streamside 
vegetation included in the permit application under Sec.  783.19 of 
this chapter, unless otherwise directed by an agency responsible for 
implementing section 404 of the Clean Water Act, 33 U.S.C. 1344.
    (4) Paragraphs (d)(1) through (3) of this section do not apply to--
    (i) Prime farmland historically used for cropland; or
    (ii) Situations in which establishment of a streamside vegetative 
corridor comprised of native species would be incompatible with an 
approved postmining land use that is implemented before final bond 
release under Sec. Sec.  800.40 through 800.43 of this chapter.
    (e) Restoration of form. If you mine through or permanently divert 
a perennial or intermittent stream, you must demonstrate successful 
restoration or reconstruction of the form of the stream channel in 
accordance with the design approved in the permit before you qualify 
for Phase I bond release under Sec.  800.42(b)(1) of this chapter.
    (f) Restoration of hydrologic function. If you mine through or 
permanently divert a perennial or intermittent stream, you must 
demonstrate restoration of the hydrologic function of the reconstructed 
stream before you qualify for Phase II bond release under Sec.  
800.42(b)(2) of this chapter. Restoration of the hydrologic function 
includes, but is not limited to, restoration of the flow regime, except 
as otherwise approved in the permit under Sec.  784.28(e)(2) of this 
chapter.
    (g) Restoration of ecological function. If you mine through or 
permanently divert a perennial or intermittent stream, the 
reconstructed stream or stream-channel diversion must meet the criteria 
approved in the permit for determining restoration of ecological 
function, as established by the regulatory authority under Sec.  
784.28(g) of this chapter, before you qualify for final bond release 
under Sec. Sec.  800.40 through 800.43 of this chapter.
    (h) Prohibition on placement of siltation structures in perennial 
or intermittent streams. (1)(i) Except as provided in paragraph (h)(2) 
of this section, you may not construct a siltation structure in a 
perennial or intermittent stream or use perennial or intermittent 
streams as waste treatment systems to convey surface runoff from the 
disturbed area to a sedimentation pond.
    (ii) Paragraph (h)(1)(i) of this section does not prohibit the 
construction of a siltation structure in a stream channel immediately 
downstream of a stream segment that is mined through.
    (2) If approved in the permit, the prohibition in paragraph (h)(1) 
of this section will not apply to excess spoil fills, coal mine waste 
refuse piles, or coal mine waste impounding structures in steep-slope 
areas when you demonstrate, and the regulatory authority finds in 
writing, that use of a perennial or intermittent stream segment as a 
waste treatment system for sediment control or construction of a 
sedimentation pond or other siltation structure in a perennial or an 
intermittent stream would have less overall adverse impact on fish, 
wildlife, and related environmental values than construction of 
diversions and sedimentation ponds or other siltation structures on 
slopes above the stream.
    (3) When the circumstances described in paragraph (h)(2) of this 
section exist, the following requirements apply:
    (i) You must minimize the length of stream used as a waste 
treatment system to the extent possible and, when practicable, maintain 
an undisturbed buffer along that stream segment in accordance with 
paragraph (b) of this section.
    (ii) You must place the sedimentation pond or other siltation 
structure as close to the toe of the excess spoil fill, coal mine waste 
refuse pile, or coal mine waste impounding structure as possible.
    (iii) Following the completion of construction and revegetation of 
the fill or coal mine waste structure, you must--
    (A) Remove and properly dispose of accumulated sediment in the 
siltation structure and any stream segment

[[Page 93430]]

between the inlet of the siltation structure and the toe of the excess 
spoil fill or coal mine waste structure;
    (B) Remove the sedimentation pond or other siltation structure; and
    (C) Restore the stream segment in accordance with paragraphs (e) 
through (g) of this section.
    (i) Programmatic alternative. Paragraphs (b) through (h) of this 
section will not apply to a state program approved under subchapter T 
of this chapter if that program is amended to expressly prohibit all 
surface mining activities, including the construction of stream-channel 
diversions, that would result in more than a de minimis disturbance of 
land in or within 100 feet of a perennial or intermittent stream.


Sec.  817.59  How must I maximize coal recovery?

    You must conduct underground mining activities so as to maximize 
the utilization and conservation of the coal, while using 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.


Sec.  817.61  Use of explosives: General requirements.

    (a) Applicability. Sections 817.61 through 817.68 apply to surface 
blasting activities incident to underground coal mining, including, but 
not limited to, initial rounds of slopes and shafts.
    (b) Compliance with other laws and regulations. You must comply 
with all applicable state and federal laws and regulations governing 
the use of explosives.
    (c) Requirements for blasters. (1) No later than 12 months after 
the blaster certification program for a state required by part 850 of 
this chapter has been approved under the procedures of subchapter C of 
this chapter, all blasting operations in that state must be conducted 
under the direction of a certified blaster. Before that time, all 
blasting operations in that state must be conducted by competent, 
experienced persons who understand the hazards involved.
    (2) Certificates of blaster certification must be carried by 
blasters or be on file at the permit area during blasting operations.
    (3) A blaster and at least one other person shall be present at the 
firing of a blast.
    (4) Any blaster who is responsible for conducting blasting 
operations at a blasting site must:
    (i) Be familiar with the site-specific performance standards; and
    (ii) Give direction and on-the-job training to persons who are not 
certified and who are assigned to the blasting crew or who assist in 
the use of explosives.
    (d) Blast design. (1) You must submit an anticipated blast design 
if blasting operations will be conducted within--
    (i) 1,000 feet of any building used as a dwelling, public building, 
school, church, or community or institutional building outside the 
permit area; or
    (ii) 500 feet of an active or abandoned underground mine.
    (2) You must submit the blast design required by paragraph (d)(1) 
of this section either as part of the permit application or, if 
approved by the regulatory authority, at a later date before blasting 
begins. Regulatory authority approval of the blast design is not 
required, but, as provided in paragraph (d)(5) of this section, the 
regulatory authority may require changes to the design.
    (3) The blast design must contain--
    (i) Sketches of the drill patterns, delay periods, and decking.
    (ii) The type and amount of explosives to be used.
    (iii) Critical dimensions.
    (iv) The location and general description of structures to be 
protected.
    (v) A discussion of design factors to be used to protect the public 
and meet the applicable airblast, flyrock, and ground-vibration 
standards in Sec.  817.67 of this part.
    (4) A certified blaster must prepare and sign the blast design.
    (5) The regulatory authority may require changes to the design 
submitted.


Sec.  817.62  Use of explosives: Preblasting survey.

    (a) At least 30 days before initiation of blasting, you must 
notify, in writing, all residents or owners of dwellings or other 
structures located within \1/2\ mile of the permit area how to request 
a preblasting survey.
    (b)(1) A resident or owner of a dwelling or structure within \1/2\ 
mile of any part of the permit area may request a preblasting survey. 
This request must be made, in writing, directly to you or to the 
regulatory authority. If the request is made to the regulatory 
authority, the regulatory authority will promptly notify you.
    (2) You must promptly conduct a preblasting survey of the dwelling 
or structure and promptly prepare a written report of the survey.
    (3) You must conduct an updated survey of any subsequent additions, 
modifications, or renovations to the dwelling or structure, if 
requested by the resident or owner.
    (c) You must determine the condition of the dwelling or structure 
and document any preblasting damage and other physical factors that 
could reasonably be affected by the blasting. Structures such as 
pipelines, cables, transmission lines, and cisterns, wells, and other 
water systems warrant special attention; however, the assessment of 
these structures may be limited to surface conditions and other readily 
available data.
    (d)(1) The person who conducted the survey must sign the written 
report of the survey.
    (2) You must promptly provide copies of the report to the 
regulatory authority and to the person requesting the survey.
    (3) If the person requesting the survey disagrees with the contents 
or recommendations of the survey, he or she may submit a detailed 
description of the specific areas of disagreement to both you and the 
regulatory authority.
    (e) You must complete any surveys requested more than 10 days 
before the planned initiation of blasting before the initiation of 
blasting.wit


Sec.  817.64  Use of explosives: General performance standards.

    (a)(1) You must notify, in writing, residents within \1/2\ mile of 
the blasting site and local governments of the proposed times and 
locations of blasting operations.
    (2) You may provide this notice weekly, but in no case less than 24 
hours before blasting will occur.
    (b) You must conduct all blasting between sunrise and sunset, 
unless the regulatory authority approves night-time blasting based upon 
a showing that the public will be protected from adverse noise and 
other impacts. The regulatory authority may specify more restrictive 
time periods for blasting.
    (c)(1) You may conduct unscheduled blasts only where public or 
operator health and safety so require and for emergency blasting 
actions.
    (2) When you conduct an unscheduled blast, you must use audible 
signals to notify residents within \1/2\ mile of the blasting site.
    (3) You must document the reason for the unscheduled blast in 
accordance with Sec.  817.68(c)(16) of this part.


Sec.  817.66  Use of explosives: Blasting signs, warnings, and access 
control.

    (a) Blasting signs. Blasting signs must meet the specifications of 
Sec.  817.11 of this part.
    (1) You must place conspicuous signs reading ``Blasting Area'' 
along the edge of any blasting area that comes within 100 feet of any 
public road right-of-way and at the point where any other road provides 
access to the blasting area.

[[Page 93431]]

    (2) You must place conspicuous signs reading ``Warning! Explosives 
in Use'' at all entrances to the permit area from public roads or 
highways. The signs must clearly list and describe the meaning of the 
audible blast warning and all-clear signals that are in use and explain 
the marking of blasting areas and charged holes awaiting firing within 
the permit area.
    (b) Warnings. You must give blast warning and all-clear signals of 
different character or pattern that are audible within a range of \1/2\ 
mile from the point of the blast. You must notify each person within 
the permit area and each person who resides or regularly works within 
\1/2\ mile of the permit area of the meaning of the signals in the 
blasting notification required in Sec.  817.64(a) of this part.
    (c) Access control. You must control access within the blasting 
area to prevent presence of livestock or unauthorized persons during 
blasting and until your authorized representative has reasonably 
determined that--
    (1) No unusual hazards, such as imminent slides or undetonated 
charges, exist; and
    (2) Access to and travel within the blasting area can be safely 
resumed.


Sec.  817.67  Use of explosives: Control of adverse effects.

    (a) General requirements. You must conduct blasting in a manner 
that prevents--
    (1) Injury to persons;
    (2) Damage to public or private property outside the permit area;
    (3) Adverse impacts on any underground mine; or
    (4) Change in the course, channel, or availability of surface water 
or groundwater outside the permit area.
    (b) Airblast.--(1) Limits. (i) Airblast must not exceed the maximum 
limits listed below at the location of any dwelling, public building, 
school, church, or community or institutional building outside the 
permit area, except as provided in paragraph (e) of this section.

------------------------------------------------------------------------
 Lower frequency limit of measuring system    Maximum level in decibels
  in Hertz (Hz), plus or minus 3 decibels               (dB)
------------------------------------------------------------------------
0.1 Hz or lower--flat response\1\.........  134 peak.
2 Hz or lower--flat response..............  133 peak.
6 Hz or lower--flat response..............  129 peak.
C-weighted--slow response \1\.............  105 peak dBC.
------------------------------------------------------------------------
\1\ Only when approved by the regulatory authority.

    (ii) If necessary to prevent damage, the regulatory authority must 
specify lower maximum allowable airblast levels than those of paragraph 
(b)(1)(i) of this section for use in the vicinity of a specific 
blasting operation.
    (2) Monitoring. (i) You must conduct periodic monitoring to ensure 
compliance with the airblast standards. The regulatory authority may 
require airblast measurement of any or all blasts and may specify the 
locations at which measurements are taken.
    (ii) The measuring systems must have an upper-end flat-frequency 
response of at least 200 Hz.
    (c) Flyrock. Flyrock travelling in the air or along the ground must 
not be cast from the blasting site--
    (1) More than one-half the distance to the nearest dwelling or 
other occupied structure;
    (2) Beyond the area of control required under Sec.  817.66(c) of 
this part; or
    (3) Beyond the permit boundary.
    (d) Ground vibration.--(1) General requirements. (i) In all 
blasting operations, except as otherwise authorized in paragraph (e) of 
this section, the maximum ground vibration must not exceed the values 
approved in the blasting plan required under Sec.  784.15 of this 
chapter.
    (ii) The maximum ground vibration for protected structures listed 
in paragraph (d)(2)(i) of this section must be established in 
accordance with either the maximum peak-particle-velocity limits of 
paragraph (d)(2) of this section, the scaled-distance equation of 
paragraph (d)(3) of this section, the blasting-level chart of paragraph 
(d)(4) of this section, or by the regulatory authority under paragraph 
(d)(5) of this section.
    (iii) All structures in the vicinity of the blasting area not 
listed in paragraph (d)(2)(i) of this section, such as water towers, 
pipelines and other utilities, tunnels, dams, impoundments, and 
underground mines, must be protected from damage by establishment of a 
maximum allowable limit on the ground vibration, submitted by the 
operator in the blasting plan and approved by the regulatory authority.
    (2) Maximum peak particle velocity. (i) The maximum ground 
vibration must not exceed the following limits at the location of any 
dwelling, public building, school, church, or community or 
institutional building outside the permit area:

----------------------------------------------------------------------------------------------------------------
                                                                 Maximum allowable peak   Scaled-distance factor
                                                                 particle velocity for    to be applied without
         Distance (D), from the blasting site, in feet            ground vibration, in   seismic monitoring (Ds)
                                                                   inches/second \1\               \2\
----------------------------------------------------------------------------------------------------------------
0 to 300......................................................                     1.25                       50
301 to 5,000..................................................                     1.00                       55
5,001 and beyond..............................................                     0.75                       65
----------------------------------------------------------------------------------------------------------------
\1\ Ground vibration must be measured as the particle velocity. Particle velocity must be recorded in three
  mutually perpendicular directions. The maximum allowable peak particle velocity applies to each of the three
  measurements.
\2\ Applicable to the scaled-distance equation of paragraph (d)(3)(i) of this section.

    (ii) You must provide a seismographic record for each blast.
    (3) Scaled-distance equation. (i) You may use the scaled-distance 
equation, W = (D/Ds) \2\, to determine the allowable charge weight of 
explosives to be detonated in any 8-millisecond period, without seismic 
monitoring, where W = the maximum weight of explosives, in pounds; D = 
the distance, in feet, from the blasting site to the nearest protected 
structure; and Ds = the scaled-distance factor. The regulatory 
authority may initially approve the scaled-distance equation using the 
values for the scaled-distance factor listed in paragraph (d)(2)(i) of 
this section.
    (ii) The regulatory authority may authorize development of a 
modified scaled-distance factor upon receipt of a written request by 
the operator, supported by seismographic records of blasting at the 
minesite. The modified scale-distance factor must be determined such 
that the particle velocity of the predicted ground vibration will not 
exceed the prescribed maximum allowable peak particle velocity of 
paragraph (d)(2)(i) of this section at a 95-percent confidence level.
    (4) Blasting-level chart. (i) You may use the ground-vibration 
limits in

[[Page 93432]]

Figure 1 to determine the maximum allowable ground vibration.
[GRAPHIC] [TIFF OMITTED] TR20DE16.001

    (ii) If the Figure 1 limits are used, you must provide a 
seismographic record including both particle velocity and vibration-
frequency levels for each blast. The regulatory authority must approve 
the method for the analysis of the predominant frequency contained in 
the blasting records before application of this alternative blasting 
criterion.
    (5) The regulatory authority must reduce the maximum allowable 
ground vibration beyond the limits otherwise provided by this section, 
if determined necessary to provide damage protection.
    (6) The regulatory authority may require that you conduct seismic 
monitoring of any or all blasts or may specify the location at which 
the measurements are taken and the degree of detail necessary in the 
measurement.
    (e) The maximum airblast and ground-vibration standards of 
paragraphs (b) and (d) of this section do not apply at the following 
locations:
    (1) At structures owned by the permittee and not leased to another 
person.
    (2) At structures owned by the permittee and leased to another 
person, if a written waiver by the lessee is submitted to the 
regulatory authority before blasting.


Sec.  817.68  Use of explosives: Records of blasting operations.

    (a) You must retain a record of all blasts for at least 3 years.
    (b) Upon request, you must make copies of these records available 
to the regulatory authority and to the public for inspection.
    (c) The records must contain the following data:
    (1) Name of the operator conducting the blast.
    (2) Location, date, and time of the blast.
    (3) Name, signature, and certification number of the blaster 
conducting the blast.
    (4) Identification, direction, and distance, in feet, from the 
nearest blast hole to the nearest dwelling, public building, school, 
church, community or institutional building outside the permit area, 
except those described in Sec.  817.67(e) of this part.
    (5) Weather conditions, including those which may cause possible 
adverse blasting effects.
    (6) Type of material blasted.
    (7) Sketches of the blast pattern, including number of holes, 
burden, spacing, decks, and delay pattern.
    (8) Diameter and depth of holes.
    (9) Types of explosives used.
    (10) Total weight of explosives used per hole.
    (11) The maximum weight of explosives detonated in an 8-millisecond 
period.
    (12) Initiation system.
    (13) Type and length of stemming.
    (14) Mats or other protections used.
    (15) Seismographic and airblast records, if required, which must 
include--
    (i) Type of instrument, sensitivity, and calibration signal or 
certification of annual calibration;
    (ii) Exact location of instrument and the date, time, and distance 
from the blast;
    (iii) Name of the person and firm taking the reading;

[[Page 93433]]

    (iv) Name of the person and firm analyzing the seismographic 
record; and
    (v) The vibration and/or airblast level recorded.
    (16) Reasons and conditions for each unscheduled blast.


Sec.  817.71  How must I dispose of excess spoil?

    (a) General requirements. You, the permittee or operator, must 
mechanically transport and place excess spoil in designated disposal 
areas, including approved valley fills and other types of approved 
fills, within the permit area in a controlled manner in compliance with 
the requirements of this section. In general, you must place excess 
spoil in a manner that will--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on groundwater and surface water, including 
aquatic life, within the permit and adjacent areas.
    (2) Ensure mass stability and prevent mass movement during and 
after construction.
    (3) Ensure that the final surface configuration of the fill is 
suitable for revegetation and the approved postmining land use or uses 
and is compatible with the natural drainage pattern and surroundings.
    (4) Minimize disturbances to, and adverse impacts on, fish, 
wildlife, and related environmental values to the extent possible, 
using the best technology currently available.
    (5) Ensure that the fill will not change the size or frequency of 
peak flows from precipitation events or thaws in a way that would 
result in an increase in flooding when compared with the impacts of 
premining peak flows.
    (6) Ensure that the fill will not cause or contribute to a 
violation of applicable state or tribal groundwater standards or 
preclude any premining use of groundwater.
    (7) Ensure that the fill will not cause or contribute to a 
violation of applicable state or tribal water quality standards for 
surface water located downstream of the toe of the fill, including, but 
not limited to, water quality standards established under the authority 
of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    (b) Stability requirements.--(1) Static safety factor. You must 
design and construct the fill 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.
    (2) Special requirement for steep-slope conditions. Where 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 
must construct bench cuts (excavations into stable bedrock) or rock-toe 
buttresses to ensure fill stability.
    (c) Compliance with permit. You must construct the fill in 
accordance with the design and plans approved in the permit in 
accordance with Sec.  784.35 of this chapter.
    (d) Requirements for handling of organic matter and soil materials. 
You must remove all vegetation, other organic matter, and soil 
materials from the disposal area prior to placement of the excess 
spoil. You must store, redistribute, or otherwise use those materials 
in accordance with Sec.  817.22 of this part. You may use soil 
substitutes and supplements if approved in the permit in accordance 
with Sec.  784.12(e) of this chapter.
    (e) Surface runoff control requirements. (1) You must direct 
surface runoff from areas above the fill and runoff from the surface of 
the fill into stabilized channels designed to--
    (i) Meet the requirements of Sec.  817.43 of this part; and
    (ii) Safely pass the runoff from a 100-year, 6-hour precipitation 
event. You must use the appropriate regional Natural Resources 
Conservation Service synthetic storm distribution to determine the peak 
flow from surface runoff from this event.
    (2) You must grade the top surface of a completed fill such that 
the final slope after settlement will be toward properly designed 
drainage channels. You may not direct uncontrolled surface runoff over 
the outslope of the fill.
    (f) Control of water within the footprint of the fill.--(1) General 
requirements. If the disposal area contains springs, natural or manmade 
water courses, or wet weather seeps, you must design and construct 
underdrains and temporary diversions as necessary to control erosion, 
prevent water infiltration into the fill, and ensure stability.
    (2) Temporary diversions. Temporary diversions must comply with the 
requirements of Sec.  817.43 of this part.
    (3) Underdrains. (i) You must construct underdrains that are 
comprised of hard rock that is resistant to weathering.
    (ii) You must design and construct underdrains using current, 
prudent engineering practices and any design criteria established by 
the regulatory authority.
    (iii) In constructing rock underdrains, you may use only hard rock 
that is resistant to weathering, such as well-cemented sandstone and 
massive limestone, and that is not acid-forming or toxic-forming. The 
underdrain must be free of soil and fine-grained, clastic rocks such as 
siltstone, shale, mudstone, and claystone. All rock used to construct 
underdrains must meet the criteria in the following table:

----------------------------------------------------------------------------------------------------------------
                 Test                          ASTM standard           AASHTO standard      Acceptable results
----------------------------------------------------------------------------------------------------------------
Los Angeles Abrasion.................  C 131 or C 535                T 96                Loss of no more than 50
                                                                                          percent of test sample
                                                                                          by weight.
Sulfate Soundness....................  C 88 or C 5240                T 104               Sodium sulfate test:
                                                                                          Loss of no more than
                                                                                          12 percent of test
                                                                                          sample by weight.
                                                                                         Magnesium sulfate test:
                                                                                          Loss of no more than
                                                                                          18 percent of test
                                                                                          sample by weight.
----------------------------------------------------------------------------------------------------------------

    (iv) The underdrain system must be designed and constructed to 
carry the maximum anticipated infiltration of water due to 
precipitation, snowmelt, and water from seeps and springs in the 
foundation of the disposal area away from the excess spoil fill.
    (v) To provide a safety factor against future changes in local 
surface-water and groundwater hydrology, perforated pipe may be 
embedded within the rock underdrain to enhance the underdrain capacity 
to carry water in excess of the anticipated maximum infiltration away 
from the excess spoil fill. The pipe must be manufactured of materials 
that are not susceptible to corrosion and must be demonstrated to be 
suitable for the deep burial conditions commonly associated with excess 
spoil fill underdrains.
    (vi) The underdrain system must be protected from material piping, 
clogging, and contamination by an adequate filter system designed and 
constructed using current, prudent engineering practices to ensure the 
long-term functioning of the underdrain system.
    (g) Placement of excess spoil. (1) Using mechanized equipment, you 
must transport and place excess spoil in a controlled manner in 
horizontal lifts not exceeding 4 feet in thickness; concurrently 
compacted as necessary to ensure mass stability and to prevent mass 
movement during and after

[[Page 93434]]

construction; and graded so that surface and subsurface drainage is 
compatible with the natural surroundings.
    (2) You may not use any excess spoil transport and placement 
technique that involves end-dumping, wing-dumping, cast-blasting, 
gravity placement, or casting spoil downslope.
    (3) Acid-forming, toxic-forming, and combustible materials. (i) You 
must handle acid-forming and toxic-forming materials in accordance with 
Sec.  817.38 of this part and in a manner that will minimize adverse 
effects on plant growth and the approved postmining land use.
    (ii) You must cover combustible materials with noncombustible 
materials in a manner that will prevent sustained combustion and 
minimize adverse effects on plant growth and the approved postmining 
land use.
    (h) Final configuration. (1) The final configuration of the fill 
must be suitable for the approved postmining land use, compatible with 
the natural drainage pattern and the surrounding terrain, and, to the 
extent practicable, consistent with natural landforms.
    (2) You may construct terraces on the outslope of the fill if 
required for stability, to control erosion, to conserve soil moisture, 
or to facilitate the approved postmining land use. The grade of the 
outslope between terrace benches may not be steeper than 2h: 1v (50 
percent).
    (3)(i) You must configure the top surface of the fill to create a 
topography that includes ridgelines and valleys with varied hillslope 
configurations when practicable, compatible with stability and 
postmining land use considerations, and generally consistent with the 
topography that existed before any mining.
    (ii) The final surface elevation of the fill may exceed the 
elevation of the surrounding terrain when necessary to minimize 
placement of excess spoil in perennial and intermittent streams, 
provided the final configuration complies with the requirements of 
paragraphs (a)(3) and (h)(1) of this section.
    (iii) The geomorphic reclamation requirements of paragraph 
(h)(3)(i) of this section do not apply in situations in which they 
would result in burial of a greater length of perennial or intermittent 
streams than traditional fill design and construction techniques.
    (i) Impoundments and depressions. No permanent impoundments are 
allowed on the completed fill. You may construct small depressions if 
they--
    (1) Are needed to retain moisture, minimize erosion, create or 
enhance wildlife habitat, or assist revegetation;
    (2) Are not incompatible with the stability of the fill;
    (3) Are consistent with the hydrologic reclamation plan approved in 
the permit in accordance with Sec.  784.22 of this chapter;
    (4) Will not result in elevated levels of parameters of concern in 
discharges from the fill; and
    (5) Are approved by the regulatory authority.
    (j) Surface area stabilization. You must provide slope protection 
to minimize surface erosion at the site. You must revegetate all 
disturbed areas, including diversion channels that are not riprapped or 
otherwise protected, upon completion of construction.
    (k) Inspections and examinations. (1) A qualified registered 
professional engineer, or other qualified professional specialist under 
the direction of the professional engineer, must inspect the fill at 
least quarterly during construction, with additional complete 
inspections conducted during critical construction periods. The 
professional engineer or specialist must be experienced in the 
construction of earth and rock fills. Critical construction periods 
include, at a minimum--
    (i) Foundation preparation, including the removal of all organic 
matter and soil materials.
    (ii) Placement of underdrains and protective filter systems.
    (iii) Installation of final surface drainage systems.
    (2) An engineer or specialist meeting the qualifications of 
paragraph (k)(1) of this section also must--
    (i) Conduct daily examinations during placement and compaction of 
fill materials or, when more than one lift is completed per day, upon 
completion of each 4-foot lift. As an alternative, the engineer or 
specialist may conduct examinations on a weekly basis if a mine 
representative takes photographs on a daily basis to document the lift 
thickness and elevation with visual reference features. The certified 
report required by paragraph (k)(3) of this section must include this 
photographic documentation.
    (ii) Maintain a log recording the examinations conducted under 
paragraph (k)(2)(i) of this section for each 4-foot lift in each fill. 
The log must include a description of the specific work locations, 
excess spoil placement methods, compaction adequacy, lift thickness, 
suitability of fill material, special handling of acid-forming and 
toxic-forming materials, deviations from the approved permit, and 
remedial measures taken.
    (3)(i) The qualified registered professional engineer to which 
paragraph (k)(1) of this section refers must provide a certified report 
to the regulatory authority on a quarterly basis.
    (ii) In each report prepared under paragraph (k)(3)(i) of this 
section, the engineer must certify that the fill has been constructed 
and maintained as designed and in accordance with the approved plan and 
this chapter.
    (iii) The report prepared under paragraph (k)(3)(i) of this section 
must identify and discuss any evidence of instability, structural 
weakness, or other hazardous conditions. If one of more of those 
conditions exists, you must submit an application for a permit revision 
that includes appropriate remedial design specifications.
    (iv) The report prepared under paragraph (k)(3)(i) of this section 
must contain--
    (A) A review and summary of all complete inspections conducted 
during the quarter under paragraph (k)(1) of this section.
    (B) A review and summary of all examinations conducted during the 
quarter under paragraph (k)(2) of this section, including the logs 
maintained under paragraph (k)(2)(ii) of this section.
    (C) The photographs taken under paragraph (k)(2)(i) of this 
section.
    (iv) Each certified report prepared under paragraph (k)(3) of this 
section for a quarter in which construction activities include 
placement of underdrains and protective filter systems must include 
color photographs taken during and after construction, but before 
underdrains are covered with excess spoil. If the underdrain system is 
constructed in phases, each phase must be certified separately. The 
photographs must be taken in adequate size and number with enough 
terrain or other physical features of the site shown to provide a 
relative scale to the photographs and to specifically and clearly 
identify the site.
    (4) You must retain a copy of each certified report prepared under 
paragraph (k)(3) of this section at or near the mine site.
    (l) Coal mine waste. You may dispose of coal mine waste in excess 
spoil fills only if approved by the regulatory authority and only if--
    (1) You demonstrate, and the regulatory authority finds in writing, 
that the disposal of coal mine waste in the excess spoil fill will 
not--
    (i) Cause or contribute to a violation of applicable state or 
tribal water quality standards or effluent limitations, including, but 
not limited to, water quality standards established under the authority 
of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), and 
effluent limitations established in any

[[Page 93435]]

National Pollutant Discharge Elimination System permit issued for the 
operation under section 402 of the Clean Water Act, 33 U.S.C. 1342, or 
its state or tribal counterpart;
    (ii) Cause or contribute to a violation of applicable state or 
tribal water quality standards for groundwater; or
    (iii) Result in material damage to the hydrologic balance outside 
the permit area.
    (2) The waste is placed in accordance with Sec. Sec.  817.81 and 
817.83 of this part.
    (3) The waste is nontoxic-forming, nonacid-forming, and non-
combustible.
    (4) The waste is of the proper characteristics to be consistent 
with the design stability of the fill.
    (m) Underground disposal. You may dispose of excess spoil in 
underground mine workings only in accordance with a plan approved by 
the regulatory authority and the Mine Safety and Health Administration 
under Sec.  784.26 of this chapter.


Sec.  817.72  [Reserved]


Sec.  817.73  [Reserved]


Sec.  817.74  What special requirements apply to disposal of excess 
spoil on a preexisting bench?

    (a) General requirements. The regulatory authority may approve the 
disposal of excess spoil through placement on a preexisting bench on a 
previously mined area or a bond forfeiture site if--
    (1) The proposed permit area includes the portion of the 
preexisting bench on which the spoil will be placed;
    (2) The proposed operation will comply with the applicable 
requirements of Sec.  817.102 of this part; and
    (3) The requirements of this section are met.
    (b) Requirements for removal and disposition of vegetation, other 
organic matter, and soil materials. You must remove all vegetation, 
other organic matter, topsoil, and subsoil from the disposal area prior 
to placement of the excess spoil and store, redistribute, or otherwise 
use those materials in accordance with Sec.  817.22 of this part. You 
may use soil substitutes and supplements if approved in the permit in 
accordance with Sec.  784.12(e) of this chapter.
    (c)(1) The fill must be designed and constructed using current, 
prudent engineering practices.
    (2) The design must be certified by a registered professional 
engineer.
    (3) If the disposal area contains springs, natural or manmade water 
courses, or wet weather seeps, the fill design must include underdrains 
and temporary diversions as necessary to control erosion, prevent water 
infiltration into the fill, and ensure stability. Underdrains must 
comply with the requirements of Sec.  817.71(f)(3) of this part.
    (d)(1) The spoil must be placed on the solid portion of the bench 
in a controlled manner and concurrently compacted as necessary to 
attain a long-term static safety factor of 1.3 for all portions of the 
fill.
    (2) Any spoil deposited on any fill portion of the bench must be 
treated as an excess spoil fill under Sec.  817.71 of this part.
    (e) You must grade the spoil placed on the preexisting bench to--
    (1) Achieve a stable slope that does not exceed the angle of 
repose.
    (2) Eliminate the preexisting highwall to the maximum extent 
technically practical, using all reasonably available spoil, as that 
term is defined in Sec.  701.5 of this chapter.
    (3) Minimize erosion and water pollution both on and off the site.
    (f) All disturbed areas, including diversion channels that are not 
riprapped or otherwise protected, must be revegetated upon completion 
of construction.
    (g) You may not construct permanent impoundments on preexisting 
benches on which excess spoil is placed under this section.
    (h) The final configuration of the fill on the preexisting bench 
must--
    (1) Be compatible with natural drainage patterns and the 
surrounding area.
    (2) Support the approved postmining land use.


Sec.  817.81  How must I dispose of coal mine waste?

    (a) General requirements. If you, the permittee, intend to dispose 
of coal mine waste in an area other than the mine workings or 
excavations, you must place the waste in new or existing disposal areas 
within a permit area in accordance with this section and, as 
applicable, Sec. Sec.  817.83 and 817.84 of this part.
    (b) Basic performance standards. You must haul or convey and place 
the coal mine waste in a controlled manner to--
    (1) Minimize the adverse effects of leachate and surface-water 
runoff on groundwater and surface water, including aquatic life, within 
the permit and adjacent areas to the extent possible, using the best 
technology currently available.
    (2) Ensure mass stability and prevent mass movement during and 
after construction.
    (3) Ensure that the final disposal facility is suitable for 
revegetation, compatible with the natural surroundings, and consistent 
with the approved postmining land use.
    (4) Not create a public hazard.
    (5) Prevent combustion.
    (6) Ensure that the disposal facility will not change the size or 
frequency of peak flows from precipitation events or thaws in a way 
that would result in an increase in flooding when compared with the 
impacts of premining peak flows.
    (7) Ensure that the disposal facility will not cause or contribute 
to a violation of applicable state or tribal groundwater standards or 
preclude any premining use of groundwater.
    (8) Ensure that the disposal facility will not cause or contribute 
to a violation of applicable state or tribal water quality standards 
for surface water located downstream of the toe of the fill, including, 
but not limited to, water quality standards established under the 
authority of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    (9) Ensure that the disposal facility will not discharge acid or 
toxic mine drainage.
    (c) Coal mine waste from outside the permit area. You may dispose 
of coal mine waste materials from activities located outside the permit 
area within the permit area only if approved by the regulatory 
authority. Approval must be based upon a showing that disposal will be 
in accordance with the standards of this section.
    (d) Design and construction requirements. (1)(i) You must design 
and construct coal mine waste disposal facilities using current, 
prudent engineering practices and any design and construction criteria 
established by the regulatory authority.
    (ii) A qualified registered professional engineer, experienced in 
the design and construction of similar earth and waste structures, must 
certify the design of the disposal facility. The engineer must 
specifically certify that any existing and planned underground mine 
workings in the vicinity of the disposal facility will not adversely 
impact the stability of the structure.
    (iii) You must construct the disposal facility in accordance with 
the design and plans submitted under Sec.  784.25 of this chapter and 
approved in the permit. A qualified registered professional engineer 
experienced in the design and construction of similar earth and waste 
structures must certify that the facility has been constructed in 
accordance with the requirements of this paragraph.
    (2) You must design and construct the disposal facility to attain a 
minimum long-term static safety factor of 1.5. The foundation and 
abutments must be

[[Page 93436]]

stable under all conditions of construction.
    (e) Foundation investigations. (1) You must perform sufficient 
foundation and abutment investigations, as well as any necessary 
laboratory testing of foundation material, to determine the design 
requirements for foundation stability and control of underseepage. The 
analyses of the foundation conditions must take into consideration the 
effect of any underground mine workings located in the permit and 
adjacent areas upon the stability of the disposal facility.
    (f) Soil handling requirements. You must remove all vegetation, 
organic matter, and soil materials from the disposal area prior to 
placement of the coal mine waste. You must store, redistribute, or 
otherwise use those materials in accordance with Sec.  817.22 of this 
part. You may use soil substitutes and supplements if approved in the 
permit in accordance with Sec.  784.12(e) of this chapter.
    (g) Emergency procedures. (1) If any examination or inspection 
discloses that a potential hazard exists, you must inform the 
regulatory authority promptly of the finding and of the emergency 
procedures formulated for public protection and remedial action.
    (2) If adequate procedures cannot be formulated or implemented, you 
must notify the regulatory authority immediately. The regulatory 
authority then must notify the appropriate agencies that other 
emergency procedures are required to protect the public.
    (h) Underground disposal. You may dispose of coal mine waste in 
underground mine workings only in accordance with a plan approved by 
the regulatory authority and the Mine Safety and Health Administration 
under Sec.  784.26 of this chapter.


Sec.  817.83  What special requirements apply to coal mine waste refuse 
piles?

    (a) General requirements. Refuse piles must meet the requirements 
of Sec.  817.81 of this part, the additional requirements of this 
section, and the requirements of Sec. Sec.  77.214 and 77.215 of this 
title.
    (b) Surface runoff and drainage control. (1) If the disposal area 
contains springs, natural or manmade water courses, or wet weather 
seeps, you must design and construct the refuse pile with diversions 
and underdrains as necessary to control erosion, prevent water 
infiltration into the disposal facility, and ensure stability.
    (2) You may not direct or divert uncontrolled surface runoff over 
the outslope of the refuse pile.
    (3) You must direct runoff from areas above the refuse pile and 
runoff from the surface of the refuse pile into stabilized channels 
designed to meet the requirements of Sec.  817.43 of this part and to 
safely pass the runoff from the 100-year, 6-hour precipitation event. 
You must use the appropriate regional Natural Resources Conservation 
Service synthetic storm distribution to determine the peak flow from 
surface runoff from this event.
    (4) Runoff diverted from undisturbed areas need not be commingled 
with runoff from the surface of the refuse pile.
    (5) Underdrains must comply with the requirements of Sec.  
817.71(f) of this part.
    (c) Surface area stabilization. You must provide slope protection 
to minimize surface erosion at the site. You must revegetate all 
disturbed areas, including diversion channels that are not riprapped or 
otherwise protected, upon completion of construction.
    (d) Final configuration and cover. (1) The final configuration of 
the refuse pile must be suitable for the approved postmining land use. 
Terraces may be constructed on the outslope of the refuse pile if 
required for stability, erosion control, conservation of soil moisture, 
or facilitation of the approved postmining land use. The grade of the 
outslope between terrace benches may not be steeper than 2h:1v (50 
percent).
    (2) No permanent impoundments or depressions are allowed on the 
completed refuse pile.
    (3) Following final grading of the refuse pile, you must cover the 
coal mine waste with a minimum of 4 feet of the best available, 
nontoxic, and noncombustible material in a manner that does not impede 
drainage from the underdrains. The regulatory authority may allow less 
than 4 feet of cover material based on physical and chemical analyses 
showing that the revegetation requirements of Sec. Sec.  817.111 and 
817.116 of this part will be met.
    (e) Inspections. You must comply with the inspection and 
examination requirements of Sec.  817.71(k) of this part.


Sec.  817.84  What special requirements apply to coal mine waste 
impounding structures?

    (a) Impounding structures constructed of coal mine waste or 
intended to impound coal mine waste must meet the requirements of Sec.  
817.81 of this part.
    (b) You may not use coal mine waste to construct impounding 
structures unless you demonstrate, and the regulatory authority finds 
in writing, that the stability of such a structure conforms to the 
requirements of this part and that the use of coal mine waste will not 
have a detrimental effect on downstream water quality or the 
environment as a result of acid drainage or toxic seepage through the 
impounding structure. You must discuss the stability of the structure 
and the prevention and potential impact of acid drainage or toxic 
seepage through the impounding structure in detail in the design plan 
submitted to the regulatory authority in accordance with Sec.  784.25 
of this chapter.
    (c)(1) You must design, construct, and maintain each impounding 
structure constructed of coal mine waste or intended to impound coal 
mine waste in accordance with paragraphs (a) and (c) of Sec.  817.49 of 
this part.
    (2) You may not retain these structures permanently as part of the 
approved postmining land use.
    (3) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste that meets the criteria of Sec.  
77.216(a) of this title must have sufficient spillway capacity to 
safely pass, adequate storage capacity to safely contain, or a 
combination of storage capacity and spillway capacity to safely 
control, the probable maximum precipitation of a 6-hour precipitation 
event, or greater event as specified by the regulatory authority.
    (d) You must design spillways and outlet works to provide adequate 
protection against erosion and corrosion. Inlets must be protected 
against blockage.
    (e) You must direct surface runoff from areas above the disposal 
facility and runoff from the surface of the facility that may cause 
instability or erosion of the impounding structure into stabilized 
channels designed and constructed to meet the requirements of Sec.  
817.43 of this part and to safely pass the runoff from a 100-year, 6-
hour precipitation event. You must use the appropriate regional Natural 
Resources Conservation Service synthetic storm distribution to 
determine the peak flow from surface runoff from this event.
    (f) For an impounding structure constructed of or impounding coal 
mine waste, you must remove at least 90 percent of the water stored 
during the design precipitation event within the 10-day period 
following the design precipitation event.


Sec.  817.87  What special requirements apply to burning and burned 
coal mine waste?

    (a) You must extinguish coal mine waste fires in accordance with a 
plan approved by the regulatory authority and the Mine Safety and 
Health Administration. The plan must contain, at a minimum, provisions 
to ensure that only those persons authorized by the

[[Page 93437]]

operator, and who have an understanding of the procedures to be used, 
are involved in the extinguishing operations.
    (b) You may not remove burning or burned coal mine waste from a 
permitted coal mine waste disposal area without a removal plan approved 
by the regulatory authority. Consideration must be given to potential 
hazards to persons working or living in the vicinity of the structure.


Sec.  817.89  How must I dispose of noncoal mine wastes?

    (a)(1) You must place and store noncoal mine wastes, including, but 
not limited to, grease, lubricants, paints, flammable liquids, garbage, 
abandoned mining machinery, lumber, and other combustible materials 
generated during mining activities, in a controlled manner in a 
designated portion of the permit area.
    (2) Placement and storage of noncoal wastes must ensure that 
leachate and surface runoff do not degrade surface water or 
groundwater, that fires are prevented, and that the area remains stable 
and suitable for reclamation and revegetation compatible with the 
natural surroundings.
    (b)(1) Final disposal of noncoal mine wastes must be in a 
designated disposal site within the permit area or in a state-approved 
solid waste disposal area.
    (2) Disposal sites within the permit area must meet the following 
requirements:
    (i) The site must be designed and constructed to ensure that 
leachate and drainage from the noncoal mine waste area does not degrade 
surface water or groundwater.
    (ii) Wastes must be routinely compacted and covered to prevent 
combustion and wind-borne waste.
    (iii) When the disposal of noncoal wastes is completed, the site 
must be covered with a minimum of 2 feet of soil, slopes must be 
stabilized, and the site must be revegetated in accordance with 
Sec. Sec.  817.111 through 817.116 of this part.
    (iv) The disposal site must be operated in accordance with all 
local, state and federal requirements.
    (c) At no time may any noncoal mine waste be deposited in a coal 
mine waste refuse pile or impounding structure, nor may an excavation 
for a noncoal mine waste disposal site be located within 8 feet of any 
coal outcrop or coal storage area.


Sec.  817.95  How must I protect surface areas from wind and water 
erosion?

    (a) You must protect and stabilize all exposed surface areas to 
effectively control erosion and air pollution attendant to erosion.
    (b)(1) You must fill, regrade, or otherwise stabilize rills and 
gullies that form in areas that have been regraded and upon which soil 
or soil substitute materials have been redistributed. This requirement 
applies only to rills and gullies that--
    (i) Disrupt the approved postmining land use or reestablishment of 
the vegetative cover;
    (ii) Cause or contribute to a violation of applicable state or 
tribal water quality standards or effluent limitations, including, but 
not limited to, water quality standards established under the authority 
of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), and 
effluent limitations established in any National Pollutant Discharge 
Elimination System permit issued for the operation under section 402 of 
the Clean Water Act, 33 U.S.C. 1342, or its state or tribal 
counterpart;
    (iii) Cause or contribute to a violation of applicable state or 
tribal water quality standards for groundwater; or
    (iv) Result in material damage to the hydrologic balance outside 
the permit area.
    (2) You must reapply soil materials to the filled or regraded rills 
and gullies when necessary to reestablish a vegetative cover. You must 
then replant those areas.


Sec.  817.97  How must I protect and enhance fish, wildlife, and 
related environmental values?

    (a) General requirements. You, the permittee, must, to the extent 
possible using the best technology currently available, minimize 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values and achieve enhancement of those resources where 
practicable, as described in detail in the fish and wildlife protection 
and enhancement plan approved in the permit in accordance with Sec.  
784.16 of this chapter.
    (b) Requirements related to federal, state, and tribal endangered 
species laws.--(1) Requirements related to the Endangered Species Act 
of 1973. (i) You may not conduct any surface mining activity that is in 
violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. 
Nothing in this chapter authorizes the taking of a species listed as 
threatened or endangered under the Endangered Species Act of 1973, 16 
U.S.C. 1531 et seq., or the destruction or adverse modification of 
designated critical habitat unless the U.S. Fish and Wildlife Service 
or the National Marine Fisheries Service, as applicable, authorizes the 
taking of a threatened or endangered species or the destruction or 
adverse modification of designated critical habitat under 16 U.S.C. 
1536(b)(4) or 1539(a)(1)(B).
    (ii) You must promptly report to the regulatory authority the 
presence of any previously unreported species listed as threatened or 
endangered, or any previously unreported species proposed for listing 
as threatened or endangered, under the Endangered Species Act of 1973, 
16 U.S.C. 1531 et seq., within the permit or adjacent areas. This 
requirement applies regardless of whether the species was listed before 
or after permit issuance.
    (iii) (A) Upon receipt of a notification under paragraph (b)(2)(ii) 
of this section, the regulatory authority will contact and coordinate 
with the appropriate state, tribal, and federal fish and wildlife 
agencies.
    (B) The regulatory authority, in coordination with the appropriate 
state, tribal, and federal fish and wildlife agencies, will identify 
whether, and under what conditions, you may proceed. When necessary to 
ensure compliance with the Endangered Species Act of 1973, 16 U.S.C. 
1531 et seq., the regulatory authority will issue an order under Sec.  
774.10(b) of this chapter requiring that you revise the permit.
    (iv) You must comply with any species-specific protection measures 
required by the regulatory authority in coordination with the U.S. Fish 
and Wildlife Service or the National Marine Fisheries Service, as 
applicable.
    (2) Requirements related to state or tribal endangered species 
laws. (i) You must promptly report to the regulatory authority any 
previously unreported state-listed or tribally-listed threatened or 
endangered species within the permit or adjacent areas whenever you 
become aware of its presence. This requirement applies regardless of 
whether the species was listed before or after permit issuance.
    (ii) (A) Upon receipt of a notification under paragraph (b)(2)(i) 
of this section, the regulatory authority will contact and coordinate 
with the appropriate state or tribal fish and wildlife agencies.
    (B) The regulatory authority, in coordination with the appropriate 
state or tribal fish and wildlife agencies, will identify whether, and 
under what conditions, you may proceed. When necessary, the regulatory 
authority will issue an order under Sec.  774.10(b) of this chapter 
requiring that you revise the permit.
    (c) Bald and golden eagles. (1) You may not conduct any underground 
mining activity in a manner that would

[[Page 93438]]

result in the unlawful taking of a bald or golden eagle, its nest, or 
any of its eggs.
    (2) You must promptly report to the regulatory authority any golden 
or bald eagle nest within the permit area of which you become aware.
    (3) Upon notification, the regulatory authority will contact and 
coordinate with the U.S. Fish and Wildlife Service and, when 
appropriate, the state or tribal fish and wildlife agency to identify 
whether, and under what conditions, you may proceed.
    (4) Nothing in this chapter authorizes the taking of a bald or 
golden eagle, its nest, or any of its eggs in violation of the Bald and 
Golden Eagle Protection Act, 16 U.S.C. 668-668d.
    (d) Miscellaneous protective measures for other species of fish and 
wildlife. To the extent possible, using the best technology currently 
available, you must--
    (1) Ensure that electric power transmission lines and other 
transmission facilities used for, or incidental to, surface mining 
activities on the permit area are designed and constructed to minimize 
electrocution hazards to raptors and other avian species with large 
wingspans.
    (2) Locate, construct, operate, and maintain haul and access roads 
and sedimentation control structures in a manner that avoids or 
minimizes impacts on important fish and wildlife species or other 
species protected by state or federal law.
    (3) Design fences, overland conveyors, and other potential barriers 
to permit passage for large mammals, except where the regulatory 
authority determines that such requirements are unnecessary.
    (4) Fence, cover, or use other appropriate methods to exclude 
wildlife from ponds that contain hazardous concentrations of toxic or 
toxic-forming materials.
    (5) Reclaim and reforest lands that were forested at the time of 
application and lands that would revert to forest under conditions of 
natural succession in a manner that enhances recovery of the native 
forest ecosystem as expeditiously as practicable.
    (e) Wetlands. (1) To the extent possible, using the best technology 
currently available, you must avoid disturbances to wetlands and, where 
practicable, enhance them. If avoidance is not possible, you must 
restore or replace wetlands that you disturb and, where practicable, 
enhance them.
    (2) Nothing in paragraph (e)(1) of this section authorizes 
destruction or degradation of wetlands in violation of section 404 of 
the Clean Water Act, 33 U.S.C. 1344.
    (f) Habitat of unusually high value for fish and wildlife. To the 
extent possible, using the best technology currently available, you 
must avoid disturbances to and, where practicable, enhance riparian and 
other native vegetation along rivers and streams, lentic vegetation 
bordering ponds and lakes, and habitat of unusually high value for fish 
and wildlife, as described in Sec.  783.20(c)(3) of this chapter. If 
avoidance of these features is not possible, you must restore or 
replace those features and, where practicable, enhance them.
    (g) Vegetation requirements for fish and wildlife habitat 
postmining land use. Where fish and wildlife habitat is a postmining 
land use, you must select and arrange the plant species to be used for 
revegetation to maximize the benefits to fish and wildlife. Plant 
species must be native to the area and must be selected on the basis of 
the following criteria:
    (1) Their proven nutritional value for fish or wildlife.
    (2) Their value as cover for fish or wildlife.
    (3) Their ability to support and enhance fish or wildlife habitat 
after the release of performance bonds.
    (4) Their ability to sustain natural succession by allowing the 
establishment and spread of plant species across ecological gradients. 
You may not use invasive plant species that are known to inhibit 
natural succession.
    (h) Vegetation requirements for cropland postmining land use. Where 
cropland is the postmining land use, and where appropriate for 
wildlife-management and crop-management practices, you must intersperse 
the crop fields with trees, hedges, or fence rows to break up large 
blocks of monoculture and to diversify habitat types for birds and 
other animals.
    (i) Vegetation requirements for forestry postmining land uses. 
Where forestry, whether managed or unmanaged, is the postmining land 
use, you must plant native tree and understory species to the extent 
that doing so is not inconsistent with the type of forestry to be 
practiced as part of the postmining land use. In all cases, regardless 
of the type of forestry to be practiced as part of the postmining land 
use, you must intersperse plantings of commercial species with 
plantings of native trees and shrubs of high value to wildlife.
    (j) Vegetation requirements for other postmining land uses. Where 
residential, public service, commercial, industrial, or intensive 
recreational uses are the postmining land use, you must establish--
    (1) Greenbelts comprised of non-invasive native plants that provide 
food or cover for wildlife, unless greenbelts would be inconsistent 
with the approved postmining land use plan for that site.
    (2)(i) A vegetated buffer at least 100 feet wide along each bank of 
all perennial and intermittent streams within the permit area. The 
width of the buffer must be measured horizontally on a line 
perpendicular to the stream, beginning at the ordinary high water mark. 
The buffer must be planted with species native to the area, including 
species adapted to and suitable for planting in any floodplains or 
other riparian habitat located within the buffer. The species planted 
must consist of native tree and understory species if the land was 
forested at the time of application or if it would revert to forest 
under conditions of natural succession.
    (ii) Paragraph (i)(2)(i) of this section does not apply to 
situations in which a vegetated buffer comprised of native species 
would be incompatible with an approved postmining land use that is 
implemented before final bond release under Sec. Sec.  800.40 through 
800.43 of this chapter.
    (k) Planting arrangement requirements. You must design and arrange 
plantings in a manner that optimizes benefits to wildlife to the extent 
practicable and consistent with the postmining land use.


Sec.  817.99  What measures must I take to prevent and remediate 
landslides?

    (a) You must notify the regulatory authority by the fastest 
available means whenever a landslide occurs that has the potential to 
adversely affect public property, health, safety, or the environment.
    (b) You must comply with any remedial measures that the regulatory 
authority requires in response to the notification provided in 
paragraph (a) of this section.


Sec.  817.100  What are the standards for conducting reclamation 
contemporaneously with mining?

    (a) You must reclaim all areas disturbed by surface impacts 
incident to an underground coal mine as contemporaneously as 
practicable with the mining operations, except when the mining 
operations are conducted in accordance with a variance for concurrent 
surface and underground mining activities under Sec.  785.18 of this 
chapter. Reclamation activities include, but are not limited to, 
backfilling, grading, soil replacement, revegetation, and stream 
restoration.

[[Page 93439]]

    (b) The regulatory authority may establish schedules that define 
contemporaneous reclamation.


Sec.  817.102  How must I backfill surface excavations and grade and 
configure the land surface?

    (a) You, the permittee or operator, must backfill all surface 
excavations and grade all disturbed areas in compliance with the plan 
approved in the permit in accordance with Sec.  784.12(d) of this 
chapter to--
    (1) Restore the approximate original contour as the final surface 
configuration, except in the following situations:
    (i) Sites for which the regulatory authority has approved a 
variance under Sec.  785.16 of this chapter.
    (ii) Remining operations on previously mined areas, but only to the 
extent specified in Sec.  817.106(b) of this part.
    (iii) Excess spoil fills constructed in accordance with Sec.  
817.71 or Sec.  817.74 of this part.
    (iv) Refuse piles constructed in accordance with Sec.  817.83 of 
this part.
    (v) Permanent impoundments that meet the requirements of paragraph 
(a)(3)(ii) of this section and Sec.  784.35(b)(4) of this chapter.
    (vi) The placement, in accordance with Sec.  784.35(b)(3) of this 
chapter, of what would otherwise be excess spoil on the mined-out area 
to heights in excess of the premining elevation when necessary to avoid 
or minimize construction of excess spoil fills on undisturbed land.
    (vii) Regrading of settled and revegetated spoil storage sites at 
the conclusion of underground mining activities, provided the following 
conditions are met:
    (A) The settled and revegetated storage sites are composed of spoil 
or non-acid-forming or non-toxic-forming underground development waste.
    (B) The spoil or underground development waste is not located so as 
to be detrimental to the environment, the health and safety of the 
public, or the approved postmining land use.
    (C) You demonstrate, through standard geotechnical analysis, that 
the spoil or underground development waste has a 1.3 static safety 
factor for material placed on a solid bench and a 1.5 static safety 
factor for material not placed on a solid bench.
    (D) The surface of the spoil or underground development waste is 
revegetated in accordance with Sec. Sec.  817.111 and 817.116 of this 
part.
    (E) Surface runoff is controlled in accordance with Sec.  784.29 of 
this chapter and Sec. Sec.  817.43 and 817.45 of this part.
    (F) The regulatory authority determines that disturbance of the 
existing spoil or underground development waste would increase 
environmental harm or adversely affect the health or safety of the 
public.
    (G) The spoil is not needed to eliminate the highwall or to meet 
other regulatory program requirements.
    (2) Minimize the creation of uniform slopes and cut-and-fill 
terraces. The regulatory authority may approve cut-and-fill terraces 
only if--
    (i) They are compatible with the approved postmining land use and 
are needed to conserve soil moisture, ensure stability, or control 
erosion on final-graded slopes; or
    (ii) Specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, in which case the final 
grading may include a terrace of adequate width to ensure the safety, 
stability, and erosion control necessary to implement the postmining 
land use.
    (3) Eliminate all highwalls, spoil piles, impoundments, and 
depressions, except in the following situations:
    (i) You may construct or retain small depressions if--
    (A) They are needed to retain moisture, minimize erosion, create or 
enhance wildlife habitat, or assist revegetation;
    (B) They are consistent with the hydrologic reclamation plan 
approved in the permit in accordance with Sec.  784.22 of this chapter; 
and
    (C) You demonstrate that they will not result in elevated levels of 
parameters of concern in discharges from the backfilled and graded 
area.
    (ii) The regulatory authority may approve the retention of 
permanent impoundments if--
    (A) They meet the requirements of Sec. Sec.  817.49 and 817.55 of 
this part;
    (B) They are suitable for the approved postmining land use; and
    (C) You demonstrate compliance with the future maintenance 
provisions of Sec.  800.42(c)(5) of this chapter.
    (D) You have obtained all necessary approvals and authorizations 
under section 404 of the Clean Water Act, 33 U.S.C. 1344, when the 
impoundment is located in waters subject to the jurisdiction of the 
Clean Water Act, 33 U.S.C. 1251 et seq.
    (iii) You may retain highwalls on previously mined areas to the 
extent provided in Sec.  817.106(b) of this part.
    (iv) You may retain modified highwall segments to the extent 
necessary to replace similar natural landforms removed by the mining 
operation. The regulatory program must establish the conditions under 
which these highwall segments may be retained and the modifications 
that must be made to the highwall to ensure that--
    (A) The retained segment resembles similar landforms that existed 
before any mining and restores the ecological niches that those 
landforms provided. Nothing in this paragraph authorizes the retention 
of modified highwall segments in excess of the number, length, and 
height needed to replace similar landforms that existed before any 
mining.
    (B) The retained segment is stable. Features that result in the 
creation of talus slopes for wildlife habitat are acceptable if they 
meet the requirements of paragraph (a)(3)(iv)(A) of this section.
    (C) The retained segment does not create an increased safety hazard 
compared to the features that existed before any mining.
    (D) The exposure of water-bearing strata, if any, in the retained 
segment does not adversely impact the hydrologic balance.
    (v) You may retain settled and revegetated spoil storage sites 
under the conditions specified in paragraph (a)(1)(vii) of this 
section.
    (4) Achieve a postmining slope that does not exceed either the 
angle of repose or such lesser slope as is necessary to achieve a 
minimum long-term static safety factor of 1.3 and to prevent slides.
    (5) Minimize erosion and water pollution, both on and off the site.
    (6) Support the approved postmining land use.
    (b) You must return all spoil to the surface excavations from which 
the spoil was removed. This requirement does not apply to--
    (1) Excess spoil disposed of in accordance with Sec.  817.71 or 
Sec.  817.74 of this part.
    (2) Spoil placed outside surface excavations in non-steep slope 
areas to restore the approximate original contour by blending the spoil 
into the surrounding terrain, provided that you comply with the 
following requirements:
    (i) You must remove all vegetation and other organic matter from 
the area upon which you intend to place spoil for blending purposes. 
You may not burn these materials; you must store, redistribute, use, or 
bury them in the manner specified in Sec.  817.22(f) of this part.
    (ii) You must remove, segregate, store, and redistribute topsoil, 
in accordance with Sec.  817.22 of this part, from the area upon which 
you intend to place spoil for blending purposes.
    (3) Settled and revegetated spoil storage sites under the 
conditions

[[Page 93440]]

specified in paragraph (a)(1)(vii) of this section.
    (c) You must compact spoil and waste materials when necessary to 
ensure stability or to prevent the formation of acid or toxic mine 
drainage, but, to the extent possible, you must avoid compacting spoil, 
soil, and other materials placed in what will be the root zone of the 
species planted under the revegetation plan approved in the permit in 
accordance with Sec.  784.12(g) of this chapter.
    (d)(1) You must cover all exposed coal seams with material that is 
noncombustible, nonacid-forming, and nontoxic-forming.
    (2) You must handle and dispose of all other combustible materials 
exposed, used, or produced during mining in accordance with Sec.  
817.89 of this part in a manner that will prevent sustained combustion, 
as approved in the permit in accordance with Sec.  784.12(j) of this 
chapter.
    (3) You must handle all other acid-forming and toxic-forming 
materials--
    (i) In compliance with the plan approved in the permit in 
accordance with Sec.  784.12(n) of this chapter;
    (ii) In compliance with Sec.  817.38 of this part;
    (iii) In compliance with the hydrologic reclamation plan approved 
in the permit in accordance with Sec.  784.22(a) of this chapter; and
    (iv) In a manner that will minimize adverse effects on plant growth 
and the approved postmining land use.
    (e) You must dispose of any coal mine waste placed in the surface 
excavation in accordance with Sec. Sec.  817.81 and 817.83 of this 
part, except that a long-term static safety factor of 1.3 will apply 
instead of the 1.5 factor specified in Sec.  817.81(d)(2) of this part.
    (f) You must prepare final-graded surfaces in a manner that 
minimizes erosion and provides a surface for replacement of soil 
materials that will minimize slippage.


Sec.  817.106  What special provisions for backfilling, grading, and 
surface configuration apply to previously mined areas with a 
preexisting highwall?

    (a) Remining operations on previously mined areas that contain a 
preexisting highwall must comply with the requirements of Sec. Sec.  
817.102 through 817.107 of this part, except as provided in this 
section.
    (b) The highwall elimination requirements of Sec.  817.102(a) of 
this part do not apply to remining operations for which you demonstrate 
in writing, to the regulatory authority's satisfaction, that the volume 
of all reasonably available spoil is insufficient to completely 
backfill the reaffected or enlarged highwall. Instead, for those 
operations, you must eliminate the highwall to the maximum extent 
technically practical in accordance with the following criteria:
    (1) You must use all spoil generated by the remining operation and 
any other reasonably available spoil to backfill the area. You must 
include reasonably available spoil in the immediate vicinity of the 
remining operation within the permit area.
    (2) You must grade the backfilled area to a slope that is 
compatible with the approved postmining land use and that provides 
adequate drainage and long-term stability.
    (3) Any highwall remnant must be stable and not pose a hazard to 
the public health and safety or to the environment. You must 
demonstrate, to the satisfaction of the regulatory authority, that the 
highwall remnant is stable.
    (4) You must not disturb spoil placed on the outslope during 
previous mining operations if disturbance would cause instability of 
the remaining spoil or otherwise increase the hazard to the public 
health and safety or to the environment.


Sec.  817.107  What special provisions for backfilling, grading, and 
surface configuration apply to operations on steep slopes?

    (a) Underground mining activities on steep slopes must comply with 
this section and the requirements of Sec. Sec.  817.102 through 817.106 
of this part.
    (b) You may not place the following materials on the downslope:
    (1) Spoil.
    (2) Waste materials of any type.
    (3) Debris, including debris from clearing and grubbing, except for 
woody materials used to enhance fish and wildlife habitat.
    (4) Abandoned or disabled equipment.
    (c) You may not disturb land above the highwall unless the 
regulatory authority finds that disturbance will facilitate compliance 
with the environmental protection standards of this subchapter and the 
disturbance is limited to that necessary to facilitate compliance.
    (d) You must handle woody materials in accordance with Sec.  
817.22(f) of this part.


Sec.  817.111  How must I revegetate areas disturbed by mining 
activities?

    (a) You, the permittee, must establish a diverse, effective, 
permanent vegetative cover on regraded areas and on all other disturbed 
areas except--
    (1) Water areas approved as a postmining land use or in support of 
the postmining land use.
    (2) The surfaces of roads approved for retention to support the 
postmining land use.
    (3) Rock piles, water areas, and other non-vegetative features 
created to restore or enhance wildlife habitat under the fish and 
wildlife protection and enhancement plan approved in the permit in 
accordance with Sec.  784.16 of this chapter.
    (4) Any other impervious surface, such as a building or a parking 
lot, approved as part of or in support of the postmining land use. This 
provision applies only to structures and facilities constructed before 
expiration of the revegetation responsibility period.
    (b) The reestablished vegetative cover must--
    (1) Comply with the revegetation plan approved in the permit in 
accordance with Sec.  784.12(g) of this chapter.
    (2) Be consistent with the approved postmining land use and, except 
as provided in the revegetation plan approved in the permit in 
accordance with Sec.  784.12(g) of this chapter, the native plant 
communities described in Sec.  783.19 of this chapter.
    (3) Be at least equal in extent of cover to the natural vegetation 
of the area.
    (4) Be capable of stabilizing the soil surface and, in the long 
term, preventing erosion in excess of what would have occurred 
naturally had the site not been disturbed.
    (5) Not inhibit the establishment of trees and shrubs when the 
revegetation plan approved in the permit requires the use of woody 
plants.
    (c) Volunteer plants of species that are desirable components of 
the plant communities described in the permit application under Sec.  
783.19 of this chapter and that are not inconsistent with the 
postmining land use may be considered in determining whether the 
requirements of Sec. Sec.  817.111 and 817.116 have been met.
    (d) You must stabilize all areas upon which you have redistributed 
soil or soil substitute materials. You must use one or a combination of 
the following methods, unless the regulatory authority determines that 
neither method is necessary to stabilize the surface and control 
erosion--
    (1) Establishing a temporary vegetative cover consisting of 
noncompetitive and non-invasive species, either native or domesticated 
or a combination thereof.
    (2) Applying suitable mulch free of weed and noxious plant seeds.
    (e) You must plant all disturbed areas with the species needed to 
establish a

[[Page 93441]]

permanent vegetative cover during the first normal period for favorable 
planting conditions after redistribution of the topsoil or other plant-
growth medium. The normal period for favorable planting conditions is 
the generally accepted local planting time for the type of plant 
materials approved in the permit as part of the revegetation plan under 
Sec.  784.12(g) of this chapter.


Sec.  817.113  [Reserved]


Sec.  817.114  [Reserved]


Sec.  817.115  How long am I responsible for revegetation after 
planting?

    (a) General provisions. (1) The period of extended responsibility 
for successful revegetation will begin after the last year of augmented 
seeding, fertilizing, irrigation, or other work, excluding husbandry 
practices that are approved by the regulatory authority in accordance 
with paragraph (d) of this section.
    (2) The initial planting of small areas that are regraded and 
planted as a result of the removal of sediment control structures and 
associated structures and facilities, including ancillary roads used to 
access those structures, need not be considered an augmented seeding 
necessitating an extended or separate revegetation responsibility 
period. This paragraph also applies to areas upon which accumulated 
sediment and materials resulting from removal of sedimentation pond 
embankments are spread.
    (b) Areas of more than 26.0 inches of average annual precipitation. 
In areas of more than 26.0 inches of annual average precipitation, the 
period of responsibility will continue for a period of not less than--
    (1) Five full years, except as provided in paragraph (b)(2) of this 
section.
    (i) The vegetation parameters for grazing land, pasture land, or 
cropland must equal or exceed the approved success standard during the 
growing season of any 2 years of the responsibility period, except the 
first year.
    (ii) On all other areas, the parameters must equal or exceed the 
applicable success standard during the growing season of the last year 
of the responsibility period.
    (2) Two full years for lands eligible for remining included in a 
permit approved under Sec.  785.25 of this chapter. The lands must 
equal or exceed the applicable ground cover standard during the growing 
season of the last year of the responsibility period.
    (c) Areas of 26.0 inches or less average annual precipitation. In 
areas of 26.0 inches or less average annual precipitation, the period 
of responsibility will continue for a period of not less than:
    (1) Ten full years, except as provided in paragraph (c)(2) of this 
section.
    (i) The vegetation parameters for grazing land, pasture land, or 
cropland must equal or exceed the approved success standard during the 
growing season of any two years after year six of the responsibility 
period.
    (ii) On all other areas, the parameters must equal or exceed the 
applicable success standard during the growing season of the last year 
of the responsibility period.
    (2) Five full years for lands eligible for remining included in a 
permit approved under Sec.  785.25 of this chapter. The lands must 
equal or exceed the applicable ground cover standard during the growing 
seasons of the last two consecutive years of the responsibility period.
    (d) Normal husbandry practices. (1) The regulatory authority may 
approve selective husbandry practices, excluding augmented seeding, 
fertilization, or irrigation, provided it obtains prior approval from 
OSMRE in accordance with Sec.  732.17 of this chapter that the 
practices are normal husbandry practices, without extending the period 
of responsibility for revegetation success and bond liability, if those 
practices can be expected to continue as part of the postmining land 
use or if discontinuance of the practices after the liability period 
expires will not reduce the probability of permanent revegetation 
success.
    (2) Approved practices must be normal husbandry practices within 
the region for unmined lands having land uses similar to the approved 
postmining land use of the disturbed area, including such practices as 
disease, pest, and vermin control; and any pruning, reseeding, and 
transplanting specifically necessitated by such actions.


Sec.  817.116  What requirements apply to standards for determining 
revegetation success?

    (a) The regulatory authority must select standards for revegetation 
success and statistically valid sampling techniques for measuring 
revegetation success. The standards and techniques must be made 
available to the public in written form.
    (b) The standards for success applied to a specific permit must 
reflect the revegetation plan requirements of Sec.  784.12(g) of this 
chapter. They must be based upon the following data--
    (1) The plant community and vegetation information required under 
Sec.  783.19 of this chapter.
    (2) The soil type and productivity information required under Sec.  
783.21 of this chapter.
    (3) The land use capability and productivity information required 
under Sec.  783.22 of this chapter.
    (4) The postmining land use approved under Sec.  784.24 of this 
chapter, but only to the extent that the approved postmining land use 
will be implemented before final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter. Otherwise, the site must be revegetated 
in a manner that will restore native plant communities and the 
revegetation success standards for the site must reflect that 
requirement.
    (c) Except for the areas identified in Sec.  817.111(a) of this 
part, standards for success must include--
    (1) Species diversity.
    (2) Areal distribution of species.
    (3) Ground cover, except for land actually used for cropland after 
the completion of regrading and redistribution of soil materials.
    (4) Production, for land used for cropland, pasture, or grazing 
land either before permit issuance or after the completion of regrading 
and redistribution of soil materials.
    (5) Stocking, for areas revegetated with woody plants.
    (d) The ground cover, production, or stocking of the revegetated 
area will be considered equal to the approved success standard for 
those parameters when the measured values are not less than 90 percent 
of the success standard, using a 90-percent statistical confidence 
interval (i.e., a one-sided test with a 0.10 alpha error).
    (e) For all areas revegetated with woody plants, regardless of the 
postmining land use), the regulatory authority must specify minimum 
stocking and planting arrangements on the basis of local and regional 
conditions and after coordination with and approval by the state 
agencies responsible for the administration of forestry and wildlife 
programs. Coordination and approval may occur on either a program-wide 
basis or a permit-specific basis.
    (f)(1) Only those species of trees and shrubs approved in the 
permit as part of the revegetation plan under Sec.  784.12(g) of this 
chapter or volunteer trees and shrubs of species that meet the 
requirements of Sec.  817.111(c) of this part may be counted in 
determining whether stocking standards have been met.
    (2)(i) At the time of final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter, at least 80 percent of the trees and 
shrubs used to determine success must have been in place for 60 percent 
of the applicable minimum period of

[[Page 93442]]

responsibility under Sec.  817.115 of this part.
    (ii) Trees and shrubs counted in determining revegetation success 
must be healthy and have been in place for not less than two growing 
seasons. Any replanting must be done by means of transplants to allow 
for proper accounting of plant stocking.
    (iii)(A) For purposes of paragraph (f)(2)(ii) of this section, 
volunteer trees and shrubs of species that meet the requirements of 
Sec.  817.111(c) of this part may be deemed equivalent to planted 
specimens two years of age or older.
    (B) Suckers on shrubby vegetation can be counted as volunteer 
plants when it is evident the shrub community is vigorous and 
expanding.
    (iv) The requirements of paragraphs (f)(2)(i) and (ii) of this 
section will be deemed met when records of woody vegetation planted 
show that--
    (A) No woody plants were planted during the last two growing 
seasons of the responsibility period; and,
    (B) If any replanting of woody plants took place earlier during the 
responsibility period, the total number planted during the last 60 
percent of that period is less than 20 percent of the total number of 
woody plants required to meet the stocking standard.
    (3) Vegetative ground cover on areas planted with trees or shrubs 
must be of a nature that allows for natural establishment and 
succession of native plants, including trees and shrubs.
    (g) Special provision for areas that are developed within the 
revegetation responsibility period. Portions of the permit area that 
are developed for industrial, commercial, or residential use within the 
revegetation responsibility period need not meet production or stocking 
standards. For those areas, the vegetative ground cover must not be 
less than that required to control erosion.
    (h) Special provision for previously mined areas. Previously mined 
areas need only meet a vegetative ground cover standard, unless the 
regulatory authority specifies otherwise. At a minimum, the cover on 
the revegetated previously mined area must not be less than the ground 
cover existing before redisturbance and must be adequate to control 
erosion.
    (i) Special provision for prime farmland. For prime farmland 
historically used for cropland, the revegetation success standard 
provisions of Sec.  823.15 of this chapter apply in lieu of the 
requirements of paragraphs (b) through (h) of this section.


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

    (a) Measures to prevent or minimize damage. (1) You, the permittee 
or operator, must either--
    (i) Adopt measures consistent with known technology that prevent 
subsidence from causing material damage to the extent technologically 
and economically feasible, maximize mine stability, and maintain the 
value and reasonably foreseeable use of surface lands; or
    (ii) Adopt mining technology that provides for planned subsidence 
in a predictable and controlled manner.
    (2) If you employ mining technology that provides for planned 
subsidence in a predictable and controlled manner under paragraph 
(a)(1)(ii) of this section, you must take necessary and prudent 
measures, consistent with the mining method employed, to minimize 
material damage to the extent technologically and economically feasible 
to non-commercial buildings and occupied residential dwellings and 
structures related thereto unless--
    (i) You have obtained the written consent of the owners of those 
structures; or
    (ii) The costs of those measures would exceed the anticipated costs 
of repair. This exception does not apply if the anticipated damage 
would constitute a threat to health or safety.
    (3) Nothing in this part prohibits the standard method of room-and-
pillar mining.
    (b) You must comply with all provisions of the subsidence control 
plan prepared pursuant to Sec.  784.30 of this chapter and approved in 
the permit.
    (c) Repair of damage to surface lands and waters. (1) To the extent 
technologically and economically feasible, you must correct any 
subsidence-related material damage to surface lands, wetlands, streams, 
or water bodies by restoring the land and water features to a condition 
capable of maintaining the value and reasonably foreseeable uses that 
the land was capable of supporting before the subsidence-related damage 
occurred.
    (2) When correction of subsidence-related material damage to 
wetlands or a perennial or intermittent stream is technologically and 
economically infeasible, you must implement fish and wildlife 
enhancement measures, as approved by the regulatory authority in a 
permit revision, to offset the material damage.
    (d) Repair or compensation for damage to non-commercial buildings, 
occupied residential dwellings and related structures. (1) You must 
promptly repair, or compensate the owner for, material damage resulting 
from subsidence caused to any non-commercial building or occupied 
residential dwelling or structure related thereto that existed at the 
time of mining.
    (2) If you select the repair option, you must fully rehabilitate, 
restore, or replace the damaged structure.
    (3) If you select the compensation option, you must compensate the 
owner of the damaged structure for the full amount of the decrease in 
value resulting from the subsidence-related damage. You may provide 
compensation by the purchase, before mining, of a non-cancellable, 
premium-prepaid insurance policy.
    (4) The requirements of paragraph (d) of this section apply only to 
subsidence-related damage caused by underground mining activities 
conducted after October 24, 1992.
    (e) Repair or compensation for damage to other structures. To the 
extent required under applicable provisions of state law, you must 
correct material damage resulting from subsidence caused to any 
structures or facilities not protected by paragraph (d) of this section 
by either repairing the damage or compensating the owner of the 
structures or facilities for the full amount of the decrease in value 
resulting from the subsidence. Repair of damage includes 
rehabilitation, restoration, or replacement of damaged structures or 
facilities. Compensation may be accomplished by the purchase before 
mining of a non-cancellable, premium-prepaid insurance policy.
    (f) Information to be considered in determination of causation. The 
regulatory authority must consider all relevant and reasonably 
available information in determining whether damage to protected 
structures was caused by subsidence from underground mining.
    (g) Adjustment of bond amount for subsidence damage. (1) When 
subsidence-related material damage to land (including wetlands, 
streams, and water bodies), structures or facilities protected under 
paragraphs (c) through (e) of this section occurs, or when 
contamination, diminution, or interruption to a water supply protected 
under Sec.  817.40 of this part occurs, the regulatory authority must 
require the permittee to post additional performance bond until the 
repair, compensation, or replacement is completed.
    (2)(i) For structures protected under paragraphs (d) and (e) of 
this section, the amount of additional bond required

[[Page 93443]]

under paragraph (g)(1) of this section must equal the--
    (A) Estimated cost of the repairs if the repair option is selected.
    (B) Decrease in value if the compensation option is selected.
    (ii) For water supplies protected under Sec.  817.40 of this part, 
the amount of additional bond required under paragraph (g)(1) of this 
section must equal the estimated cost to replace the protected water 
supply, unless the conditions described in Sec.  817.40(a)(4) of this 
part apply.
    (iii) For surface lands and waters to which paragraph (c) of this 
section applies, the amount of additional bond required under paragraph 
(g)(1) of this section must equal the estimated cost of restoring the 
land and waters to a condition capable of maintaining the value and 
reasonably foreseeable uses that they were capable of supporting before 
the material damage from subsidence occurred.
    (3)(i) The requirements of paragraph (g)(1) of this section do not 
apply if repair, compensation, or replacement is completed within 90 
days of the occurrence of damage. The regulatory authority may extend 
the 90-day time frame, provided that the total time allowed does not 
exceed one year, if you demonstrate, and the regulatory authority finds 
in writing, that repair of subsidence-related material damage to lands, 
waters, or protected structures or replacement of an adversely impacted 
protected water supply within 90 days would be unreasonable because--
    (A) Subsidence is not complete;
    (B) All probable subsidence-related material damage to lands, 
waters, or protected structures has not yet occurred; or
    (C) All reasonably anticipated changes that may affect an adversely 
impacted protected water supply have not yet occurred.
    (ii)(A) If you have not completed correction or repair of 
subsidence-related material damage to surface lands or waters or 
replaced adversely impacted protected water supplies within 2 years 
following the occurrence of that damage, the regulatory authority must 
initiate bond forfeiture proceedings under Sec.  800.50 of this chapter 
and use the funds collected to repair the surface lands and waters or 
replace the protected water supplies.
    (B) Paragraph (g)(3)(ii)(A) of this section does not apply if--
    (1) The landowner refuses to allow access to conduct the corrective 
measures; or
    (2) You demonstrate, and the regulatory authority finds, that 
correction or repair of the material damage to surface lands or waters 
is not technologically or economically feasible. In that situation, you 
must complete the enhancement measures required under paragraph (c)(2) 
of this section.
    (h) Prohibitions and limitations on underground mining. (1) You may 
not conduct underground mining activities beneath or adjacent to--
    (i) Public buildings and facilities.
    (ii) Churches, schools, and hospitals.
    (iii) Impoundments with a storage capacity of 20 acre-feet or more 
or bodies of water with a volume of 20 acre-feet or more.
    (2) The prohibitions of paragraph (h)(1) of this section do not 
apply if the subsidence control plan demonstrates that subsidence will 
not cause material damage to, or reduce the reasonably foreseeable use 
of, the features or facilities listed in paragraphs (h)(1)(i) through 
(iii) of this section.
    (3) The regulatory authority may limit the percentage of coal 
extracted under or adjacent to the features and facilities listed in 
paragraphs (h)(1)(i) through (iii) of this section if it determines 
that the limitation is necessary to minimize the potential for material 
damage to those features or facilities or to any aquifer or body of 
water that serves as a significant water source for any public water 
supply system.
    (i) If subsidence causes material damage to any of the features or 
facilities listed in paragraphs (h)(1)(i) through (iii) of this 
section, the regulatory authority may suspend mining under or adjacent 
to those features or facilities until the subsidence control plan is 
modified to ensure prevention of further material damage to those 
features or facilities.
    (j) The regulatory authority must suspend underground mining 
activities under urbanized areas, cities, towns, and communities, and 
adjacent to industrial or commercial buildings, major impoundments, or 
perennial streams, if it finds that the mining activities pose an 
imminent danger to inhabitants of the urbanized areas, cities, towns, 
or communities.
    (k) You must submit a detailed plan of the underground workings of 
your mine in accordance with a schedule approved by the regulatory 
authority. The detailed plan must include maps and descriptions, as 
appropriate, of significant features of the underground mine, including 
the size, configuration, and approximate location of pillars and 
entries, extraction ratios, measures taken to prevent or minimize 
subsidence and related damage, areas of full extraction, and other 
information required by the regulatory authority. The regulatory 
authority may hold the information submitted with the detailed plan as 
confidential, in accordance with Sec.  773.6(d) of this chapter, upon 
your request.


Sec.  817.122  How and when must I provide notice of planned 
underground mining?

    (a) At least 6 months prior to mining, or within that period if 
approved by the regulatory authority, you, the underground mine 
operator, must mail a notification to all owners and occupants of 
surface property and structures above the planned underground workings.
    (b) The notification must include, at a minimum--
    (1) Identification of specific areas in which mining will take 
place;
    (2) Dates that specific areas will be undermined; and
    (3) The location or locations where the subsidence control plan may 
be examined.


Sec.  817.131  What actions must I take when I temporarily cease mining 
operations?

    (a)(1) Each person who temporarily ceases to conduct underground 
mining activities at a particular site must effectively support and 
maintain all surface access openings to underground operations and 
secure surface facilities in areas in which there are no current 
operations, but where operations are to be resumed under an approved 
permit.
    (2) Temporary cessation does not relieve a person of his or her 
obligation to comply with any provisions of the approved permit.
    (b)(1) You must submit a notice of intent to temporarily cease 
operations to the regulatory authority before ceasing mining and 
reclamation operations for 30 or more days, or as soon as you know that 
a temporary cessation will extend beyond 30 days.
    (2) The notice of temporary cessation must include a statement of 
the--
    (i) Exact number of surface acres disturbed within the permit area 
prior to temporary cessation;
    (ii) Extent and kind of reclamation accomplished before temporary 
cessation; and
    (iii) Backfilling, regrading, revegetation, environmental 
monitoring, underground opening closures, and water treatment 
activities that will continue during temporary cessation.


Sec.  817.132  What actions must I take when I permanently cease mining 
operations?

    (a) Persons who permanently cease conducting underground mining 
activities at a particular site must close, backfill, or otherwise 
permanently reclaim all disturbed areas in accordance with this chapter 
and the

[[Page 93444]]

permit approved by the regulatory authority.
    (b) All underground openings, surface equipment, surface 
structures, or other surface facilities must be removed and the 
affected land reclaimed, unless the regulatory authority approves 
retention of those features because they are suitable for the 
postmining land use or environmental monitoring.


Sec.  817.133  What provisions concerning postmining land use apply to 
my operation?

    You, the permittee, must restore all disturbed areas in a timely 
manner to conditions that are capable of supporting--
    (a) The uses they were capable of supporting before any mining; as 
described under Sec.  783.22 of this chapter; or
    (b) Higher or better uses approved under Sec.  784.24(b) of this 
chapter.


Sec.  817.150  What are the general requirements for haul and access 
roads?

    (a) Road classification system. (1) Each road meeting the 
definition of that term in Sec.  701.5 of this chapter must be 
classified as either a primary road or an ancillary road.
    (2) A primary road is any road that is--
    (i) Used for transporting coal or spoil;
    (ii) Frequently used for access or other purposes for a period in 
excess of 6 months; or
    (iii) To be retained for an approved postmining land use.
    (3) An ancillary road is any road not classified as a primary road.
    (b) Performance standards. Each road must be located, designed, 
constructed, reconstructed, used, maintained, and reclaimed so as to--
    (1) Control or prevent erosion, siltation, and air pollution 
attendant to erosion, including road dust and dust occurring on other 
exposed surfaces, by measures such as vegetating, watering, using 
chemical or other dust suppressants, or otherwise stabilizing all 
exposed surfaces in accordance with current, prudent engineering 
practices.
    (2) Control or prevent damage to fish, wildlife, or their habitat 
and related environmental values.
    (3) Control or prevent additional contributions of suspended solids 
to streamflow or runoff outside the permit area.
    (4) Neither cause nor contribute, directly or indirectly, to a 
violation of applicable state or tribal water quality standards for 
surface water and groundwater, including, but not limited to, surface 
water quality standards established under the authority of section 
303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    (5) Refrain from seriously altering the normal flow of water in 
streambeds or drainage channels.
    (6) Prevent or control damage to public or private property, 
including the prevention or mitigation of adverse effects on lands 
within the boundaries of units of the National Park System, the 
National Wildlife Refuge System, the National System of Trails, the 
National Wilderness Preservation System, the Wild and Scenic Rivers 
System, including designated study rivers, and National Recreation 
Areas designated by Act of Congress.
    (7) Use nonacid- and nontoxic-forming substances in road surfacing.
    (c) Design and construction limits and establishment of design 
criteria. To ensure environmental protection appropriate for their 
planned duration and use, including consideration of the type and size 
of equipment used, the design and construction or reconstruction of 
roads must include appropriate limits for grade, width, surface 
materials, surface drainage control, culvert placement, and culvert 
size, in accordance with current, prudent engineering practices, and 
any necessary design criteria established by the regulatory authority.
    (d) Location. (1) No part of any road may be located in the channel 
of an intermittent or perennial stream unless specifically approved by 
the regulatory authority in accordance with Sec.  784.28 of this 
chapter and Sec.  817.57 of this part.
    (2) Roads must be located to minimize downstream sedimentation and 
flooding.
    (e) Maintenance. (1) A road must be maintained to meet the 
performance standards of this part and any additional criteria 
specified by the regulatory authority;
    (2) A road damaged by a catastrophic event, such as a flood or 
earthquake, must be repaired as soon as is practicable after the damage 
has occurred.
    (f) Reclamation. A road not to be retained as part of an approved 
postmining land use must be reclaimed in accordance with the approved 
reclamation plan as soon as practicable after it is no longer needed 
for mining and reclamation operations. Reclamation must include--
    (1) Closing the road to traffic.
    (2) Removing all bridges and culverts unless approved as part of 
the postmining land use.
    (3) Removing or otherwise disposing of road-surfacing materials 
that are incompatible with the postmining land use and revegetation 
requirements.
    (4) Reshaping the slopes of road cuts and fills as necessary to be 
compatible with the postmining land use and to complement the natural 
drainage pattern of the surrounding terrain.
    (5) Protecting the natural drainage patterns by installing dikes or 
cross-drains as necessary to control surface runoff and erosion.
    (6) Scarifying or ripping the roadbed, replacing topsoil or 
substitute material in accordance with Sec.  817.22 of this part, and 
revegetating disturbed surfaces in accordance with Sec. Sec.  817.111, 
817.115, and 817.116 of this chapter.


Sec.  817.151  What additional requirements apply to primary roads?

    (a) Primary roads must meet the requirements of Sec.  817.150 of 
this part and the additional requirements of this section.
    (b) Certification. The construction or reconstruction of primary 
roads must be certified in a report to the regulatory authority by a 
qualified registered professional engineer, or in any state that 
authorizes land surveyors to certify the construction or reconstruction 
of primary roads, a qualified registered professional land surveyor, 
with experience in the design and construction of roads. The report 
must indicate that the primary road has been constructed or 
reconstructed as designed and in accordance with the approved plan.
    (c) Safety factor. Each primary road embankment must have a minimum 
static factor of 1.3 or meet the requirements established under Sec.  
784.37(c) of this chapter.
    (d) Location. (1) To minimize erosion, a primary road must be 
located, insofar as is practicable, on the most stable available 
surface.
    (2) Fords of perennial or intermittent streams are prohibited 
unless they are specifically approved by the regulatory authority as 
temporary routes during periods of road construction.
    (e) Drainage control. In accordance with the approved plan--
    (1) Each primary road must be constructed (or reconstructed) and 
maintained to have adequate drainage control, using structures such as, 
but not limited to bridges, ditches, cross drains, and ditch relief 
drains. The drainage control system must be designed to safely pass the 
peak runoff from the 10-year, 6-hour precipitation event, or any 
greater event specified by the regulatory authority.
    (2) Drainage pipes and culverts must be installed as designed, and 
maintained in a free and operating condition and to prevent or control 
erosion at inlets and outlets.
    (3) Drainage ditches must be constructed and maintained to prevent

[[Page 93445]]

uncontrolled drainage over the road surface and embankment.
    (4) Culverts must be installed and maintained to sustain the 
vertical soil pressure, the passive resistance of the foundation, and 
the weight of vehicles using the road.
    (5) Natural stream channels must not be altered or relocated 
without the prior approval of the regulatory authority in accordance 
with Sec.  784.28 of this chapter and Sec.  817.57 of this part.
    (6) Except as provided in paragraph (d)(2) of this section, 
structures for perennial or intermittent stream channel crossings must 
be made using bridges, culverts, low-water crossings, or other 
structures designed, constructed, and maintained using current prudent 
engineering practices. The regulatory authority must ensure that low-
water crossings are designed, constructed, and maintained to prevent 
erosion of the structure or streambed and additional contributions of 
suspended solids to streamflow.
    (f) Surfacing. Primary roads must be surfaced with material 
approved by the regulatory authority as being sufficiently durable for 
the anticipated volume of traffic and the weight and speed of vehicles 
using the road.


Sec.  817.180  To what extent must I protect utility installations?

    You must conduct all underground coal mining operations in a manner 
that minimizes damage, destruction, or disruption of services provided 
by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; 
railroads; electric and telephone lines; and water and sewage lines 
that pass over, under, or through the permit area, unless otherwise 
approved by the owner of those facilities and the regulatory authority.


Sec.  817.181  What requirements apply to support facilities?

    (a) You must operate each support facility in accordance with the 
permit issued for the mine or coal preparation plant to which the 
facility is incident or from which its operation results.
    (b) In addition to the other provisions of this part, you must 
locate, maintain, and use support facilities in a manner that--
    (1) Prevents or controls erosion and siltation, water pollution, 
and damage to public or private property; and
    (2) To the extent possible using the best technology currently 
available--
    (i) Minimizes damage to fish, wildlife, and related environmental 
values; and
    (ii) Minimizes additional contributions of suspended solids to 
streamflow or runoff outside the permit area. Any such contributions 
may not be in excess of limitations of state or federal law.


Sec.  817.200  [Reserved]

PART 824--SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS--
MOUNTAINTOP REMOVAL MINING OPERATIONS

0
36. Revise the authority citation for part 824 to read as follows:

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


0
37. Revise the heading for part 824 to read as set forth above.

0
38. Revise Sec.  824.11 to read as follows:


Sec.  824.11  What special performance standards apply to mountaintop 
removal mining operations?

    (a) Applicability. This section applies to all operations for which 
the regulatory authority has approved a permit under Sec.  785.14 of 
this chapter.
    (b) Performance standards. (1) You, the permittee, must comply with 
all applicable requirements of this subchapter and the regulatory 
program, other than the approximate original contour restoration 
requirements of Sec.  816.102(a)(1) of this chapter and the thick 
overburden requirements of Sec.  816.105 of this chapter.
    (2)(i) You must retain an outcrop barrier, consisting of the toe of 
the lowest coal seam and its associated overburden, of sufficient width 
to prevent slides and erosion. You must construct drains through the 
barrier to the extent necessary to prevent saturation of the backfill.
    (ii) The outcrop barrier requirement in paragraph (b)(2)(i) of this 
section does not apply if the proposed mine site was mined prior to May 
3, 1978, and the toe of the lowest coal seam has already been removed.
    (iii) You may remove a coal barrier adjacent to a head-of-hollow 
fill after the elevation of the fill attains the elevation of the coal 
barrier if the head-of-hollow fill provides the stability otherwise 
ensured by the retention of a coal barrier.
    (iv) The regulatory authority may allow removal of the outcrop 
barrier required by paragraph (b)(2)(i) of this section if the 
regulatory program establishes standards for and requires construction 
of a barrier comprised of alternative materials that will provide 
equivalent stability.
    (3) The final graded slopes must be less than 1v:5h, so as to 
create a level plateau or gently rolling configuration. The outslopes 
of the plateau may not exceed 1v:2h except where engineering data 
substantiate, and the regulatory authority finds in writing and 
includes in the permit under Sec.  785.14 of this chapter that an 
alternative configuration will achieve a minimum static safety factor 
of 1.5.
    (4) You must grade the plateau or gently rolling contour to drain 
inward from the outslope, except at specified points where it drains 
over the outslope in stable and protected channels.
    (5) You must place sufficient spoil on the mountaintop bench to 
achieve the approved postmining land use. You must place all spoil 
material not retained on the mountaintop bench in accordance with the 
excess spoil disposal requirements of Sec.  816.71 or Sec.  816.74 of 
this chapter.
    (6) You must prevent damage to natural watercourses in accordance 
with the finding made by the regulatory authority under Sec.  785.14 of 
this chapter.

PART 827--SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS--COAL 
PREPARATION PLANTS NOT LOCATED WITHIN THE PERMIT AREA OF A MINE

0
39. The authority citation for part 827 continues to read as follows:

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


0
40. Revise Sec.  827.12 to read as follows:


Sec.  827.12  What performance standards apply to coal preparation 
plants?

    Except as provided in Sec.  827.13 of this part, construction, 
operation, maintenance, modification, reclamation, and removal 
activities at coal preparation plants must comply with the following 
provisions of part 816 of this chapter: Sec. Sec.  816.11, 816.22, 
816.34 through 816.57, 816.71, 816.74, 816.79, 816.81 through 816.97, 
816.100, 816.102, 816.104, 816.106, 816.111 through 816.116, 816.131 
through 816.133, 816.150, 816.151, and 816.181.

[FR Doc. 2016-29958 Filed 12-19-16; 8:45 am]
 BILLING CODE 4310-05-P