Stream Protection Rule

Federal RegisterJul 27, 2015

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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

RIN 1029-AC63

[Docket ID: OSM-2010-0018; S1D1S SS08011000 SX064A000 156S180110; S2D2S SS08011000 SX064A000 15X501520]

Stream Protection Rule

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

Electronic or written comments:

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

ADDRESSES:

You may submit comments by any of the following methods:

Federal eRulemaking Portal:

http://www.regulations.gov

. The Docket ID for the proposed rule is OSM-2010-0018, while the Docket ID for the draft environmental impact statement is OSM-2010-0021 and the docket ID for the draft regulatory impact analysis is OSM-2015-0002. Please follow the online instructions for submitting comments.

Mail/Hand-Delivery/Courier:

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

If you wish to comment on the information collection aspects of this proposed rule, submit your comments to the Department of the Interior Desk Officer at OMB—OIRA, via email at

OIRA_Submission@omb.eop.gov

, or via facsimile at (202) 395-5806. Also, send a copy of your comments to John A. Trelease, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave. NW., Room 203 SIB, Washington, DC 20240, or via email at

jtrelease@osmre.gov

You may review the proposed rule, the draft environmental impact statement, and the draft regulatory impact analysis online at

www.osmre.gov

. You also may review these documents in person at the location listed below and at the addresses listed in Part XII under

SUPPLEMENTARY INFORMATION

. You may also review the information collection requests at

http://www.reginfo.gov/public/do/PRAMain

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

FOR FURTHER INFORMATION CONTACT:

For the proposed rule:

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

For the draft environmental impact statement:

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

For the draft regulatory impact analysis:

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

For information collection matters:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Why are we proposing to revise our regulations?

III. What needs does this proposed rule address?

IV. What Clean Water Act programs protect streams?

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

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

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

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

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

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

B. Section 701.5: Definitions

C. Part 773: Requirements for Permits and Permit Processing

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

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

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

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

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

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

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

E. Part 777: General Content Requirements for Permit Applications

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

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

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

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

1. Section 779.1: What does this part do?

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

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

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

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

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

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

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

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

1. Section 780.1: What does this part do?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Section 816.1: What does this part do?

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

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

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

5. Section 816.34: How must I protect the hydrologic balance?

6. Section 816.35: How must I monitor groundwater?

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

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

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

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

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

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

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

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

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

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

17. Section 816.49: What requirements apply to impoundments?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

XI. How would this rule affect state regulatory programs?

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

XIII. Procedural Matters and Required Determinations

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

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act

D. Unfunded Mandates

E. Executive Order 12630—Takings

F. Executive Order 13132—Federalism

G. Executive Order 12988—Civil Justice Reform

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

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

J. Paperwork Reduction Act

K. National Environmental Policy Act

L. Data Quality Act

M. 1 CFR part 51—Incorporation by reference

I. Executive Summary

Significant advances in scientific knowledge and mining and reclamation techniques have occurred in the more than 30 years that have elapsed since the enactment of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act)

and the adoption of federal regulations implementing that law. The proposed rule seeks to acknowledge the advancements in science, technology, policy, and the law that impact coal communities and natural resources, based on our experience and engagement with state regulatory authorities, industry, non-governmental organizations, academia, citizens, and other stakeholders.

30 U.S.C. 1201

et seq.

The primary purpose of this proposed rule is to reinforce the need to minimize the adverse impacts

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

Impacts include loss of headwater streams, long-term degradation of water quality in streams downstream of a mine, displacement of native species, fragmentation of large blocks of mature hardwood forests, compaction and improper construction of postmining soils that inhibit the reestablishment of native plant communities and adverse impacts on watershed hydrology where coal mining occurs.

• First, the proposed rule defines the term “material damage to the hydrologic balance outside the permit area” and requires that each permit establish the point at which adverse mining-related impacts on groundwater and surface water reach an unacceptable level;

i.e.,

the point at which adverse impacts from mining would cause material damage to the hydrologic balance outside the permit area.

• Second, the proposed rule sets forth how to collect adequate premining data about the site of the proposed mining operation and adjacent areas to establish a comprehensive baseline that will

facilitate evaluation of the effects of mining operations.

• Third, the proposed rule outlines how to conduct effective, comprehensive monitoring of groundwater and surface water during and after both mining and reclamation and during the revegetation responsibility period to provide real-time information documenting mining-related changes in water quality and quantity. Similarly, the proposed rule addresses the need to require monitoring of the biological condition of streams during and after mining and reclamation to evaluate changes in aquatic life. Proper monitoring would enable timely detection of any adverse trends and allow timely implementation of any necessary corrective measures.

• Fourth, the proposed rule promotes the protection or restoration of perennial and intermittent streams and related resources, especially the headwater streams that are critical to maintaining the ecological health and productivity of downstream waters.

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

• Sixth, the proposed rule is intended to ensure that land disturbed by surface coal mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before mining. Soil characteristics and the degree and type of revegetation have a significant impact on surface-water runoff quantity and quality as well as on aquatic life and the terrestrial ecosystems dependent upon perennial and intermittent streams. The proposed rule also would require revegetation of reclaimed minesites with native species unless and until a conflicting postmining land use, such as intensive agriculture, is implemented.

• Seventh, the proposed rule would update and codify requirements and procedures to protect threatened and endangered species and designated critical habitat under the Endangered Species Act of 1973.

It also would better explain how the fish and wildlife protection and enhancement provisions of SMCRA should be implemented.

16 U.S.C. 1531

et seq.

This proposed rule would more completely implement SMCRA's permitting requirements and performance standards, provide regulatory clarity to operators and stakeholders while better achieving the purposes of SMCRA as set forth in section 102 of the Act.

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

30 U.S.C. 1202.

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

II. Why are we proposing to revise our regulations?

Our primary purpose in proposing this rule is to strike a better balance between “protection of the environment and agricultural productivity and the Nation's needs for coal as an essential source of energy.”

Specifically, the proposed rule is designed to minimize the adverse impacts of surface coal mining operations on surface water, groundwater, and site productivity, with particular emphasis on protecting or restoring streams, aquatic ecosystems, riparian habitats and corridors, native vegetation, and the ability of mined land to support the uses that it was capable of supporting before mining. Our proposed changes reflect our experience during the more than three decades since adoption of the existing regulations, as well as advances in scientific knowledge and mining and reclamation techniques during that time. The proposed rule would more completely implement sections 515(b)(24) and 516(b)(11) of SMCRA, which provide that, to the extent possible using the best technology currently available, surface coal mining and reclamation operations must be conducted to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values and to achieve enhancement of those resources where practicable.

It also would update our regulations concerning compliance with the Endangered Species Act of 1973.

In addition, we propose to revise and reorganize our regulations for clarity, to make them more user-friendly, to remove obsolete and redundant provisions, and to implement plain language principles.

30 U.S.C. 1202(f).

See 30 U.S.C. 1265(b)(24) and 1266(b)(11).

16 U.S.C. 1531

et seq.

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

Impacts on Aquatic Ecology

Headwater streams consist of first-order through third-order streams

under the Strahler stream-order system, which is the generally-accepted geographical classification system for ranking streams by size.

Headwater streams are the small swales, creeks, and streams that connect to form larger streams and rivers. They trap floodwaters, recharge groundwater, remove pollution, provide fish and wildlife habitat, and sustain the health of downstream rivers, lakes, and bays. These streams support diverse biological communities of aquatic invertebrates, such as insects, and

vertebrates, including fish and salamanders, that are often distinct from the species found further downstream. Headwater streams function as sources of sediment, water, nutrients, and organic matter for downstream systems. Riparian vegetation provides organic matter to headwater streams in the form of dropped leaves and other plant parts. This organic matter fuels the aquatic food web.

According to the U.S. Environmental Protection Agency (EPA), headwater streams that flow only seasonally or in response to precipitation events;

i.e.,

intermittent and ephemeral streams, comprise approximately 53 percent of the total stream miles in the continental United States.

The U.S. Geological Survey sometimes characterizes only first-order and second-order streams as headwater streams. See,

e.g.,

Argue, D. M., Pope, J. P., and Dieffenbach, Fred. 2012. Characterization of major-ion chemistry and nutrients in headwater streams along the Appalachian National Scenic Trail and within adjacent watersheds, Maine to Georgia: U.S. Geological Survey Scientific Investigations Report 2011-5151, 63 p., plus CD-ROM, p. 4. Also available at

http://pubs.usgs.gov/sir/2011/5151

(last accessed February 27, 2015).

See

http://geography.about.com/od/physicalgeography/a/streamorder.htm

(last accessed January 29, 2015). A first-order stream has no tributaries. When two first-order streams join, they form a second-order stream. When two second-order streams join, they form a third-order stream.

Palmer, Margaret A. and Emily S. Bernhardt. 2009. Mountaintop Mining Valley Fills and Aquatic Ecosystems: A Scientific Primer on Impacts and Mitigation Approaches. p. 12.

See

http://water.epa.gov/type/rsl/streams.cfm

(last accessed January 12, 2015).

Headwater streams are the streams most likely to be directly disturbed or impacted by coal mining activities. The EPA estimates that SMCRA permits in existence between 1992 and 2002 authorized the destruction of 1,208 miles of headwater streams.

This total included approximately 2 percent of the total stream miles and 4 percent of the first-order and second-order stream miles in the central Appalachian coalfields.

Id.

However, the fact that the mining plan in the permit authorized destruction of a stream segment does not necessarily mean that the destruction occurred. In some cases, the permittee may have decided not proceed with mining or to alter mining plans subsequent to permit issuance. An unknown amount of the habitat destruction was offset through the section 404 permitting process of the U.S. Army Corps of Engineers, which requires mitigation of loss or degradation of waters of the United States.

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

Midwestern studies of reconstructed stream segments demonstrate that restoration of hydrological form and ecological function after mining through a stream is technologically feasible and attainable. In Illinois, case studies documented that streams flowing through channels reconstructed after mining can approach the regional biological diversity found in streams in unmined watersheds in that region.

Another Illinois study focused on 25 miles of low-gradient perennial streams with moderately disturbed premining watersheds. Those stream segments were relocated in the 1980s to facilitate mining and then were restored in their approximate premining location, although two of the three streams were routed through permanent pit impoundments for part of their length. In general, the study found that the premining hydrological form and ecological function of the streams have been successfully restored, based on a comparison with relatively undisturbed segments of those streams that are upstream of the mining operations.

The exception is fish abundance and diversity, which is substantially lower, perhaps, the authors suggest, because of the lack of mature riparian timber and instream woody debris.

In addition, monitoring of habitat, water chemistry, and biological parameters of a low-gradient stream in Indiana that flows through a channel reconstructed after mining has demonstrated rapid recovery of the stream's ecological function.

Nawrot, J., W.G. O'Leary, and P. Malone. 2009. Illinois stream restoration—opportunities for habitat enhancement: policy, principles, and practices. Pages 183-195

Proceedings of the 2009 Geomorphic Reclamation and Natural Stream Design at Coal Mines: A Technical Interactive Forum, 28-30 April 2009. Bristol, VA, 226 pp.

Williard, Karl, B. Borries, T. Straub, D. Rosenboom, C. Nielson, and V. Kelly. 2013. Stream restoration—long term performance: a reassessment. Final report for Office of Surface Mining Cooperative Agreement S11AC20024 AS.

Id.

at 77-78. The restored streams have a relative lack of minnows and benthic invertivores along with an abundance of sunfish. Lentic species replaced lotic species in the two streams that were routed through permanent pit impoundments.

ENVIRON International Corporation. September 10, 2010. Report for Fish and Macroinvertebrate Sampling for 2010 Bioassessment Monitoring of West Fork Busseron Creek. Prepared for Peabody Energy, Evansville, Indiana.

The general consensus is that reconstruction and restoration of high-gradient streams after mining is more challenging. However, a 2012 EPA publication notes that “restoration of high-gradient, very small intermittent and ephemeral channels as part of stream mitigation projects is common in coalmining regions.”

This statement appears in the context of a discussion of improving existing degraded stream channels as mitigation for the adverse impacts of coal mining elsewhere, but the principles set forth in the publication also should apply to functional restoration of stream channels newly constructed or reconstructed as part of surface coal mining and reclamation operations. Appendix B of the publication describes a scenario in which high-gradient stream channels devoid of aquatic life on an abandoned minesite in West Virginia may be restored to biological health in an estimated 10 years.

Harman, W., R. Starr, M. Carter, K. Tweedy, M. Clemmons, K. Suggs, C. Miller. 2012.

A Function-Based Framework for Stream Assessment and Restoration Projects.

U.S. Environmental Protection Agency, Office of Wetlands, Oceans, and Watersheds, Washington, DC EPA 843-K-12-006, p. 230.

Id.

at 336-339.

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

See,

e.g.,

Lindberg. T.T., E.S. Bernhardt,

R. Bier, A. Helton,

R. Merola, A. Vengosh, and R.T. Di Giulio. 2011. Cumulative impacts of mountaintop mining on an Appalachian watershed.

Proceedings of the National Academy of Sciences

108: 20929-20934, 20929. The researchers state that typical specific conductance levels in low order streams in West Virginia range from 13 to 253 microSiemens per centimeter (μS/cm). Specific conductance levels in streams impacted by mining range from 502 to 2,540 μS/cm. (Specific conductance is a measure of electrical conductivity. High specific conductance readings are a strong indicator of land disturbance, such as agriculture, urbanization, or mining. See Pond, G.J., M.E. Passmore, F.A. Borsuk, L. Reynolds, and C.J. Rose. 2008..Downstream effects of mountaintop coal mining: comparing biological

conditions using family- and genus-level macroinvertebrate bioassessment tools. J. N. Am. Benthol. Soc., 2008, 27(3): 717-737, 720.)

When sulfate is the dominant anion in those discharges, the result can be acid mine drainage, which mobilizes metals such as iron, manganese, aluminum, and zinc that are directly toxic to fish at high levels.

But high concentrations of sulfate ions do not necessarily result in acid mine drainage because groundwater discharges and surface runoff from backfilled areas and excess spoil fills often also contain elevated concentrations of alkaline ions (especially calcium, magnesium, and carbonate ions), which neutralize the acidic sulfate ions, thus preventing the formation of acid mine drainage.

Williard,

op. cit.

at 4.

Palmer, M.A. and E.S. Bernhardt. 2009. Mountaintop Mining Valley Fills and Aquatic Ecosystems: A Scientific Primer on Impacts and Mitigation Approaches, p. 14.

However, alkaline ions also can have negative impacts on water quality and aquatic life. Elevated concentrations of alkaline ions in mine drainage may result in significant increases in the pH and electrical conductivity of streams that receive discharges from mined areas.

Elevated concentrations of both these ions and sulfate ions are highly correlated with elevated electrical conductivity in streams, which is highly correlated with the loss or absence of pollution-sensitive species of aquatic insects and fish even when in-stream habitat downstream of the mining activity is otherwise intact.

The adverse impacts may extend far downstream. One study found that adverse impacts from both surface and underground mines on water quality in Appalachian streams extended an average of 6.2 miles downstream from the mine.

Id.

at 3, 14-15.

Petty, T., K. Fulton, M. Strager, G. Merovich, J. Stiles, and P. Ziemkiewicz. 2010. Landscape indicators and thresholds of stream ecological impairment in an intensively mined Appalachian watershed.

Journal of the North American Benthological Society

29(4): 1292-1309.

The EPA has established an aquatic life benchmark of 300 microsiemens per centimeter (μS/cm) for electrical conductivity, based on a scientific determination that maintaining conductivity at or below this level should prevent the extirpation of 95 percent of invertebrate genera, such as mayflies, dragonflies, damselflies, and aquatic beetles, in central Appalachian streams.

In other words, mining activities that cause an increase in the electrical conductivity of a stream to no more than 300 μS/cm would be expected to result in the extirpation of no more than 5 percent of the invertebrate genera present in the stream before mining. A recent study suggests that a similar benchmark for fish would be somewhat higher because adverse impacts on the populations and diversity of fish species begin to appear at conductivity readings between 600 and 1,000 μS/cm.

U.S. Environmental Protection Agency. 2011. A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams (Final Report). Office of Research and Development, National Center for Environmental Assessment, Washington, DC. EPA/600/R-10/023F, p. 41. EPA states that this benchmark applies to parts of West Virginia and Kentucky and that it may be applicable to Ohio, Tennessee, Pennsylvania, Virginia, Alabama, and Maryland in Ecoregions 68, 69, and 70 because the salt matrix and background (calcium and magnesium cations and sulfate and bicarbonate anions at circum-neutral pH) is expected to be similar throughout those ecoregions. EPA further states that this benchmark also may be appropriate for other nearby regions, but that it may not apply when the relative concentrations of dissolved ions are different.

Hitt, N.P. and D.B. Chambers. 2014. Temporal changes in taxonomic and functional diversity of fish assemblages downstream from mountaintop mining.

Freshwater Science

33(3):000-000. Published online June 30, 2014, in unpaginated form.

Elevated electrical conductivity in streams can persist for many years after the completion of mining and land reclamation.

This water quality characteristic can prevent or restrict recolonization by the species of fish

and insects

that inhabited the affected stream segment before mining began in the watershed. Studies in Appalachia of existing minesites have not found any ecologically significant improvement in electrical conductivity with either time or the extent of reforestation of the minesite.

However, a recent study of test plots on a surface mine in Kentucky found that the quality of water emanating from plots that used the Forestry Reclamation Approach

to soil reconstruction improved dramatically within 3 to 9 years after spoil placement, with electrical conductivity apparently stabilizing at levels 50 percent below those recorded during the first 3 years.

Our proposed rule would address the conductivity issue by requiring that backfilling techniques consider impacts on electrical conductivity, by requiring that excess spoil fills be constructed in compacted lifts, and by incorporating elements of the Forestry Reclamation Approach into our soil reconstruction and revegetation rules.

See,

e.g.,

Lindberg. T.T., E.S. Bernhardt,

R. Bier, A. Helton,

R. Merola, A. Vengosh, R.T. Di Giulio. 2011.

Cumulative impacts of mountaintop mining on an Appalachian watershed.

Proceedings of the National Academy of Sciences

108: 20929-20934, 20931. Available at

http://www.pnas.org/cgi/doi/10.1073/pnas.1112381108

(last accessed January 29, 2015).

Hitt and Chambers,

op. cit.

Pond, G.J., M.E. Passmore, N.D. Pointon, J.K. Felbinger, C.A. Walker, K.J.G. Krock, G.B. Fulton, and W.L. Nash. 2014. Long-Term Impacts on Macroinvertebrates Downstream of Reclaimed Mountaintop Mining Valley Fills in Central Appalachia.

Environmental Management 54

(4), 919-933.

Id.

The Forestry Reclamation Approach is a set of five steps for reclaiming mined sites to encourage native forest regeneration. These steps are: (1) Prepare a suitable growth medium, (2) minimize compaction, (3) minimize competition from groundcover, (4) plant early‐ and late‐successional tree species, and (5) use proper tree-planting techniques. See

http://arri.osmre.gov/FRA/FRApproach.shtm

(last accessed January 6, 2015).

Sena, Kenton L., “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 January 6, 2015). Electrical conductivity during the first 3 years averaged between 829 and 1224 μS/cm, depending upon whether the soil consisted of brown sandstone, gray sandstone, or a mix. Electrical conductivity in the last year of the study averaged between 421 and 564 μS/cm.

Selenium Impacts

In locations with geological formations that contain selenium, mining has sometimes resulted in elevated levels of selenium in streams downgradient of the minesite. Mining exposes elemental selenium to air, thus facilitating oxidation to selenite and selenate, which are soluble in water. Selenium bioaccumulates

in fish tissues, causing reproductive problems, physical deformities, and, in extreme cases, mortality in fish in the affected streams.

Selenium is beneficial to animals, including humans, when ingested in small amounts, but toxic when ingested in amounts ranging from 0.1 to 10 mg/kg of food.

Humans have a dietary requirement estimated to be 0.04 to 0.10 mg/kg of food, but ingestion of selenium in amounts as low as 0.07 mg per day has been shown to have deleterious effects similar to arsenic poisoning.

Thus, selenium concentrations in streams may be a human health concern when the stream serves as a drinking water supply or

when fish in the stream are used for human consumption.

Bioaccumulation means an increase in the concentration of a chemical in a biological organism over time, compared to the chemical's concentration in the environment. Compounds accumulate in living things any time they are taken up and stored faster than they are broken down (metabolized) or excreted. See

extoxnet.orst.edu/tibs/bioaccum.htm

(last accessed January 6, 2015).

Hitt and Chambers, op. cit., suggest that an aquatic life benchmark for total dissolved selenium concentrations using the criteria that EPA relied upon to establish a benchmark for electrical conductivity would be between four and seven micrograms per liter, at least for fish.

U.S. Environmental Protection Agency, “Quality Criteria for Water” (1976), p. 200.

Id.

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

Impacts on Stream Flow Regime and Flooding

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

Our proposed rule would address this issue by minimizing soil compaction and maximizing reforestation.

Sena at 27.

Impacts on Topography and Microclimates

Mining impacts on the terrestrial environment include a loss of topographic complexity;

i.e.,

regraded minesites generally are flatter and more uniform in terms of surface elevation and configuration when compared with the premining topography. U.S. Geological Survey studies of central Appalachia found that surface coal mining reduced ridgetop elevations by an average of 112 feet, raised valley floor elevations by an average of 174 feet, reduced slope steepness by 9.5-11 percent, and changed slope aspect

by 38-41 degrees.

Changes are less dramatic in areas with flatter topography, but the same principle of greater uniformity and less topographic diversity after mining and regrading still applies. Regraded minesites usually lack the small drainageways and variations in slope and other topographical features found prior to mining. Therefore, they also lack the microclimates and associated ecosystems found prior to mining. Landsat data from 2007-2009 for the area containing a large mountaintop removal mining operation in West Virginia indicate that surface temperatures of areas disturbed by mining were warmer and more variable in all seasons except winter.

Surface temperatures influence the type of vegetation that can survive on mined land and the extent and rate at which the premining plant community and associated fauna can recolonize the site.

Aspect is the compass direction that a slope faces. It has a significant effect on the soils and microclimate of the slope and hence on the plant and animal life found there, as well as the site's productivity.

Wickham, James, Petra Bohall Wood, Matthew C. Nicholson, William Jenkins, Daniel Druckenbrod, Glenn W. Suter, Michael P. Strager, Christine Mazzarella, Walter Galloway, and John Amos. The overlooked terrestrial impacts of mountaintop mining.

BioScience

63, no. 5 (2013): 335-348, 338-339.

Id.

at 338.

Impacts on Soils, Vegetation, and Terrestrial Wildlife

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

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

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

Draft Environmental Impact Statement (EIS)

The draft EIS for this proposed rule contains an expanded discussion of the impacts of mining on the environment. Almost all the literature surveys and studies reviewed for this rulemaking process have been published since the adoption in 1983 of our principal regulations concerning protection of the hydrologic balance

and protection of fish, wildlife, and related environmental

values,

which underscores the need to update our regulations to reflect new scientific understanding of impacts associated with coal mining.

48 FR 43956 (Sept. 26, 1983).

48 FR 30312 (Jun. 30, 1983).

Relationship to 2009 MOU

This proposed rule helps fulfill our responsibilities under a memorandum of understanding (MOU) that the Secretary of the Department of the Interior, the Administrator of the EPA, and the Acting Assistant Secretary of the Army (Civil Works) entered into on June 11, 2009. This MOU implemented an interagency action plan designed to significantly reduce the harmful environmental consequences of surface coal mining operations in six Appalachian states and ensure that future mining is conducted consistent with federal law. Specifically, Part III.A. of the MOU provides that we will review our “existing regulatory authorities and procedures to determine whether regulatory modifications should be proposed to better protect the environment and public health from the impacts of Appalachian surface coal mining.” It also provides that, at a minimum, we will consider revisions to the stream buffer zone rule published December 12, 2008,

and our existing regulatory requirements concerning approximate original contour. Ultimately, we determined that development of a comprehensive, nationally applicable stream protection rule would be the most appropriate and effective method of achieving the purposes and requirements of SMCRA, as well as meeting the goals set forth in the MOU.

The U.S. District Court for the District of Columbia vacated the 2008 stream buffer zone rule on February 20, 2014, in

National Parks Conservation Ass'n

Jewell,

2014 U.S. Dist. LEXIS 152383 (D.D.C. Feb. 20, 2014). See also 79 FR 76227-76233 (Dec. 22, 2014).

In keeping with our commitment in the MOU, we considered making revisions to our approximate original contour regulations. Ultimately, we decided not to propose any major changes to our permitting requirements and performance standards concerning approximate original contour restoration at this time because of cost concerns and perceived difficulty of implementation. However, we are proposing revisions to our regulations governing exceptions to the requirement to restore the approximate original contour.

III. What needs does this proposed rule address?

All versions of the stream buffer zone rule that we have adopted over the years, including the version now in effect, focused primarily on activities in or within 100 feet of the stream itself.

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

The 2008 rule was somewhat broader in that it also included provisions intended to minimize the creation of excess spoil and to limit the footprint of excess spoil fills.

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

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

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

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

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

Sixth, there is a need to ensure that land disturbed by surface coal mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before any mining, including both those uses dependent upon stream protection or restoration and those uses that promote or support protection and restoration of

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

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

IV. What Clean Water Act programs protect streams?

The goal of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”

To achieve that objective, section 301 of the Clean Water Act

prohibits the discharge of pollutants from point sources into waters of the United States unless consistent with the requirements of the Act. Section 402 of the Clean Water Act

governs the discharge of pollutants other than dredged or fill material, while section 404

governs the discharge of dredged or fill material into waters of the United States.

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

33 U.S.C. 1311.

33 U.S.C. 1342.

33 U.S.C. 1344.

Section 303 Water Quality Standards

Section 303 of the Clean Water Act

requires states to adopt water quality standards applicable to their intrastate and interstate waters. Water quality standards assist in maintaining the physical, chemical, and biological integrity of a water body by designating uses, setting water quality criteria to protect those uses, and establishing provisions to protect water quality from degradation. Water quality standards established by states

are subject to EPA review. 40 CFR 131.5; 33 U.S.C. 1313(c). EPA may object to state-adopted water quality standards and may require changes to the state-adopted water quality standards and, if the state does not respond to EPA's objections, EPA may promulgate federal standards. 33 U.S.C. 1313(c)(3)-(4); 40 CFR 131.5, 131.21.

33 U.S.C. 1313.

EPA may treat an eligible federally-recognized Indian tribe in the same manner as a state for implementing and managing certain environmental programs, including under the Clean Water Act.

Water quality criteria may be expressed numerically and implemented in permits through specific numeric limitations on the concentration of a specific pollutant in the water (

e.g.,

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

Section 401 Water Quality Certification

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

Section 402 National Pollutant Discharge Elimination System (NPDES)

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

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

Section 404 Permits

Section 404(a) of the Clean Water Act authorizes the Secretary of the Army, acting through the U.S. Army Corps of Engineers (ACE or the Corps), to “issue

permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. 1344(a). By this authority, the ACE regulates discharges of dredged and fill material into waters of the United States in connection with surface coal mining and reclamation operations. The ACE's regulations governing section 404 permit procedures are set forth at 33 CFR part 325.

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

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

Id.

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

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

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

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

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

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

(2) The discharge will not cause the loss of more than

1/2

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

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

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

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

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

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

The discharge must not cause the loss of greater than

1/2

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

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

This proposed rule would more completely implement SMCRA's permitting requirements and performance standards and better achieve the purposes of SMCRA as set forth in section 102 of the Act.

It is intended to balance all relevant purposes of the Act, which include ensuring that surface coal mining operations are conducted in a manner that protects the environment, establishing a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations, and ensuring a coal supply adequate for our Nation's energy needs.

30 U.S.C. 1202.

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

Section 101(c),

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

30 U.S.C. 1201(c).

Section 102(a),

which provides that one of the purposes of the Act is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.”

30 U.S.C. 1202(a).

Section 102(d),

which provides that one of the purposes of the Act is to “assure that surface coal mining operations are so conducted as to protect the environment.”

30 U.S.C. 1202(d).

Section 102(f),

which provides that one of the purposes of the Act is to “strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.”

30 U.S.C. 1202(f).

Section 102(m),

which provides that the Secretary, wherever necessary, “exercise the full reach of Federal constitutional powers to insure the protection of the public interest through effective control of surface coal mining operations.”

30 U.S.C. 1202(m).

Section 201(c)(2),

which provides that the Secretary, acting through OSMRE, will “publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this Act.”

30 U.S.C. 1211(c)(2).

Section 510(b)(2),

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

30 U.S.C. 1260(b)(2).

Section 510(b)(3),

which provides that the regulatory authority may not approve a permit application unless it first finds that the proposed operation “has been designed to prevent material damage to the hydrologic balance outside the permit area.”

30 U.S.C. 1260(b)(3).

Section 515(b)(2),

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

30 U.S.C. 1265(b)(2).

Section 515(b)(10),

which requires that surface coal mining and reclamation operations “minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation.” Section 516(b)(9)

contains similar provisions applicable to underground mining operations.

30 U.S.C. 1265(b)(10).

30 U.S.C. 1266(b)(9).

Section 515(b)(19),

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

contains generally similar provisions applicable to underground mining operations.

30 U.S.C. 1265(b)(19).

30 U.S.C. 1266(b)(6).

Section 515(b)(22)(A),

which requires that all excess spoil material be “transported and placed in a controlled manner in position for concurrent compaction and in such a way to assure mass stability and to prevent mass movement.”

30 U.S.C. 1265(b)(22)(A).

Section 515(b)(23),

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

30 U.S.C. 1265(b)(23).

Section 515(b)(24),

which provides that surface coal mining and reclamation operations must, “to the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable.” Section 516(b)(11)

contains similar

provisions for underground mining operations.

30 U.S.C. 1265(b)(24).

30 U.S.C. 1266(b)(11).

Finally, section 702(a) of SMCRA

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

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

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

The U.S. House of Representatives first passed a bill (H.R. 6482) to regulate surface coal mining operations in 1972. Section 9(a) of that bill included a flat prohibition on mining within 100 feet of any “body of water, stream, pond, or lake to which the public enjoys use and access, or other private property.” However, the bill never became law and the provision did not appear in either the House or Senate versions of the bills that ultimately became SMCRA. Therefore, nothing in SMCRA specifically establishes or requires a buffer zone for streams, although sections 515(b)(24) and 516(b)(11) of SMCRA

require that mining operations minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible using the best technology currently available. We have consistently interpreted those and other provisions of SMCRA as meaning that protection of perennial and intermittent streams, with their intrinsic value to fish and wildlife, is an important element of the environmental protection regime that SMCRA established. Since the enactment of SMCRA, we have adopted four sets of regulations, which we discuss below, that included the concept of a buffer zone for streams.

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

The 1977 Stream Buffer Zone Rule

In 1977, we published initial regulatory program regulations providing that no land within 100 feet of an intermittent or perennial stream could be disturbed by surface coal mining and reclamation operations unless the regulatory authority specifically authorizes those operations. See 30 CFR 715.17(d)(3) and 717.17(d), as published at 42 FR 62639, 62686, 62697 (Dec. 13, 1977). We stated that we adopted that rule as a means “to protect stream channels from abnormal erosion” from nearby upslope mining activities.

However, that rule, which applies only to the now-limited subset of surface coal mining and reclamation operations subject to the initial regulatory program, does not specify the conditions under which the regulatory authority may authorize surface coal mining operations within the buffer zone.

Id.

at 62652.

The 1979 Stream Buffer Zone Rule

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

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

The preamble to the 1979 rules explains that the purpose of the revised rules was to implement paragraphs (b)(10) and (b)(24) of section 515 of the Act.

It states that “[b]uffer zones are required to protect streams from the adverse effects of sedimentation and from gross disturbance of stream channels,” but that “if operations can be conducted within 100 feet of a stream in an environmentally acceptable manner, they may be approved.”

In addition, it states that “[t]he 100-foot limit is based on typical distances that should be maintained to protect stream channels from sedimentation,” but that, while the 100-foot standard provides a simple rule for enforcement purposes, “site-specific variation should be made available when the regulatory authority has an objective basis for either increasing or decreasing the width of the buffer zone.”

Id.

at 15176.

Id.

at 15176-15177.

The 1983 Stream Buffer Zone Rule

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

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

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

The biological-community standard was confusing to apply since there are areas with ephemeral surface waters of little biological or hydrologic significance which, at some time of the year, contain a biological community as defined by previous § 816.57(c). Thus, much confusion arose when operators attempted to apply the previous rule's standards to springs, seeps,

ponding areas, and ephemeral streams. While some small biological communities which contribute to the overall production of downstream ecosystems will be excluded from special buffer-zone protection under final § 816.57(a), the purposes of Section 515(b)(24) of the Act will best be achieved by providing a buffer zone for those streams with more significant environmental-resource values.

48 FR 30313 (Jun. 30 1983). Based upon additional scientific information developed over the last 30 years, we no longer concur with this characterization of the significance of ephemeral streams.

Referring to those streams that would not be protected by 30 CFR 816.57,

i.e.,

ephemeral streams, the preamble further states that “[i]t is impossible to conduct surface mining without disturbing a number of minor natural streams, including some which contain biota.”

Referring to those streams that would be protected by 30 CFR 816.57,

i.e.,

perennial and intermittent streams, the preamble also states that “surface coal mining operations will be permissible as long as environmental protection will be afforded to those streams with more significant environmental-resource value.”

The preamble further provides that the revised rules “also recognize that intermittent and perennial streams generally have environmental-resource values worthy of protection under Section 515(b)(24) of the Act.”

In addition, the preamble notes that “[a]lthough final § 816.57 is intended to protect significant biological values in streams, the primary objective of the rule is to provide protection for the hydrologic balance and related environmental values of perennial and intermittent streams”.

It further states that “[t]he 100-foot limit is used to protect streams from sedimentation and help preserve riparian vegetation and aquatic habitats.”

Id.

at 30312.

Id.

at 30313. However, as discussed in Part II and elsewhere in this preamble, implementation of the 1983 rule has not resulted in uniform or consistent achievement of this primary objective.

Id.

at 30314.

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

Id.

Finally, the preamble states that we expanded the finding in 30 CFR 816.57(a)(1) to include environmental resources of the stream other than water quantity and quality to clarify “that regulatory authorities will be allowed to consider factors other than water quantity and quality in making buffer-zone determinations” and “to provide a more accurate reflection of the objectives of Sections 515(b)(10) and 515(b)(24) of the Act.”

In fact, the language of the revised finding not only allowed regulatory authorities to consider environmental resources of the stream other than water quantity and quality, it required that they do so.

Id.

at 30316.

The National Wildlife Federation challenged this regulation as being inconsistent with sections 515(b)(10) and (24) of the Act, primarily because it deleted the biological community criterion for non-perennial stream protection. However, the court rejected that challenge, finding without elaboration that the “regulation is not in conflict with either section 515(b)(10) or 515(b)(24).”

The court also noted that the Secretary had properly justified the rule change on the grounds that the previous rule was confusing and difficult to apply without protecting areas of little biological significance.

In re: Permanent Surface Mining Regulation Litigation II-Round II,

21 ERC 1725, 1741-1742 (D.D.C. 1984).

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

See footnote 21,

id.

at 1741.

Historically, we and some state regulatory authorities applied the 1983 stream buffer zone rule in a manner that allowed the placement of excess spoil fills, refuse piles, slurry impoundments, and sedimentation ponds in intermittent and perennial streams within the permit area. However, as discussed at length in the preamble to a 2004 proposed rule,

which we never finalized, there has been considerable controversy over the proper interpretation of both the Clean Water Act and our 1983 rules as they apply to the placement of fill material in or near perennial and intermittent streams.

See 69 FR 1038-1042 (Jan. 7, 2004).

One interpretation of the 1983 stream buffer zone rules appears in our annual oversight reports for West Virginia for 1999 and 2000, which state that the stream buffer zone rule does not apply to the footprint of a fill placed in a perennial or intermittent stream as part of a surface coal mining operation. On June 4, 1999, in

West Virginia Highlands Conservancy

Babbitt,

Civ. No. 1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that interpretation, alleging that it constituted rulemaking in violation of the Administrative Procedure Act.

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

As a result of the signing of the MOU, the court approved an unopposed motion to dismiss the case mentioned above

as moot in an order filed September 23, 1999.

Memorandum Of Understanding among the U.S. Office of Surface Mining, U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, and West Virginia Division Of Environmental Protection for the Purpose of Clarifying the Application of Regulations Related to Stream Buffer Zones under the Surface Mining Control and Reclamation Act for Surface Coal Mining Operations that Result in Valley Fills, August 9, 1999, p. 4.

West Virginia Highlands Conservancy

Babbitt,

Civ. No. 1:99CV01423 (D.D.C.).

In a lawsuit filed in the U.S. District Court for the Southern District of West Virginia in July 1998, plaintiffs asserted that the 1983 stream buffer zone rule should be interpreted to allow mining activities through a perennial or intermittent stream or within the buffer zone for a perennial or intermittent stream only if the activities are minor incursions.

They argued that the rule did not allow substantial segments of a perennial or intermittent stream to be buried underneath excess spoil fills or other mining-related structures.

On October 20, 1999, the district court ruled in favor of the plaintiffs on this

point, holding that the West Virginia version of the stream buffer zone rule applies to all segments of a stream, including those segments within the footprint of an excess spoil fill, not just to the stream as a whole.

The court stated that the construction of fills in perennial or intermittent streams is inconsistent with the language of the West Virginia counterpart to 30 CFR 816.57(a)(1), which provides that the regulatory authority may authorize surface mining activities within a stream buffer zone only after making certain findings, including a finding that the proposed activities would not “adversely affect the normal flow or gradient of the stream, adversely affect fish migration or related environmental values, materially damage the water quantity or quality of the stream . . . .”

The court also concluded that, contrary to the August 1999 MOU, satisfaction of the Section 404(b)(1) Guidelines is not equivalent to satisfaction of the SMCRA buffer zone rule.

See

Bragg

Robertson,

72 F. Supp. 2d 642, 660-663 (S.D. W. Va. 1999).

Id.

at 650-653, 661. In a related matter, a consent decree filed on January 3, 2000, and approved on February 17, 2000, stated that the West Virginia stream buffer zone rules only apply downstream from the toes of downstream faces of embankments of sediment control structures in perennial and intermittent streams.

Bragg

Robertson,

83 F. Supp. 2d 713, 718 n.4 (S.D. W. Va. 2000).

Id.

at 660.

On appeal, the U.S. Court of Appeals for the Fourth Circuit vacated the judgment of the district court and remanded the case with instructions to dismiss the counts concerning the stream buffer zone rule as barred by the Eleventh Amendment to the U.S. Constitution. See

Bragg

West Virginia Coal Ass'n,

248 F.3d 275, 296 (4th Cir. 2001),

cert. denied,

534 U.S. 1113 (2002). While the Fourth Circuit did not interpret the 1983 version of the stream buffer zone rule, the brief for the federal appellants in that case included another interpretation of the regulation in their brief. In sum, the federal appellants supported an interpretation based on the district court decision and stated that 30 CFR 816.57 “prohibits the burial of substantial portions of intermittent and perennial streams beneath excess mining spoil.”

Brief for Federal Appellants at 2,

Bragg

West Virginia Coal Ass'n,

248 F.3d 275 (4th Cir. 2001) (No. 99-2683) (footnote omitted).

In a different case related to the issuance of a nationwide section 404 permit under the Clean Water Act, the U.S. District Court for the Southern District of West Virginia stated in an opinion that SMCRA and the 1983 stream buffer zone rule do not authorize disposal of overburden in streams: “SMCRA contains no provision authorizing disposal of overburden waste in streams, a conclusion further supported by the buffer zone rule.”

Yet, on appeal, the U.S. Court of Appeals for the Fourth Circuit rejected the district court's conclusion, stating that “SMCRA does not prohibit the discharge of surface coal mining excess spoil in waters of the United States.”

The court further stated that “it is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States even though those materials do not have a beneficial purpose.”

Kentuckians for the Commonwealth, Inc.

Rivenburgh,

204 F. Supp. 2d 927, 942 (S.D. W. Va. 2002).

Kentuckians for the Commonwealth, Inc.

Rivenburgh,

317 F.3d 425, 442 (4th Cir. 2003).

Id.

at 443. The preamble to a proposed rule, which we published on January 7, 2004, but which we never adopted in final form, contains additional discussion of litigation and related matters arising from the 1983 stream buffer zone rule through 2003. See especially Part I.B.1. at 69 FR 1038-1040.

In subsequent litigation, the federal appellants stated that “OSM has historically interpreted its `stream buffer zone' rule . . . to allow for the construction of valley fills in intermittent and perennial streams, even if such fills cover a stream segment. The traditional interpretation of the [stream buffer zone] is in harmony with this Court's decision in

Rivenburgh.

”

Additionally, the U.S. Court of Appeals for the Fourth Circuit has discussed SMCRA's role in the regulation of valley fills in the context of a challenge to individual permits under section 404 of the Clean Water Act.

100

See

Ohio Valley Envtl. Coal.

Aracoma Coal Co.,

556 F.3d 177, 195 (4th Cir. 2009) (“Congress clearly contemplated that the regulation of the disposal of excess spoil and the creation of valley fills falls under the SMCRA rubric.”).

Corrected Brief for Federal Appellants at 9 n.2,

Ohio Valley Envtl. Coal.

Bulen,

556 F.3d 177 (4th Cir. 2009) (Nos. 04-2129 (L), 04-2137, 04-2402) (footnote omitted).

100

33 U.S.C. 1344.

The 2008 Rule

In 2004, we proposed a rule to revise the 1983 version of the stream buffer zone rule in order “to clarify the circumstances in which mining activities such as the construction of excess spoil fills may be allowed within the [stream buffer zone]”.

101

Although we abandoned this proposed rule, we proposed another rule in 2007, in part “to end the ambiguity in interpretation of the stream buffer zone rules and to ensure that regulatory authorities, mine operators, other governmental entities, landowners, and citizens all can have a common understanding of what the stream buffer zone rules do and do not require, consistent with underlying statutory authority.”

102

101

69 FR 1039-1040 (Jan. 7, 2004).

102

72 FR 48890, 48892 (Aug. 24, 2007).

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

103

See 73 FR 75814, 75816-75818 (Dec. 12, 2008).

Litigation Concerning the 2008 Rule

Shortly after publication of the 2008 rule, ten environmental organizations challenged the validity of the rule. See

Coal River Mountain Watch

Salazar

(“

Coal River”

), No. 08-2212 (D.D.C., filed Dec. 22, 2008) and

National Parks Conservation Ass'n

Salazar

(“

NPCA”

), No. 09-115 (D.D.C., filed Jan. 16, 2009).

NPCA,

the Federal Government filed a motion on April 27, 2009, for voluntary remand and vacatur of the 2008 rule. The motion was based on the Secretary's determination that OSMRE

erred in failing to initiate consultation with the U.S. Fish and Wildlife Service (FWS or the Service) under section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), to evaluate possible effects of the 2008 rule on threatened and endangered species. In

Coal River,

the Federal Government filed a motion on April 28, 2009, to dismiss the complaint as moot if the court granted the motion in

NPCA.

On August 12, 2009, the court denied the Federal Government's motion in

NPCA,

holding that, absent a ruling on the merits, significant new evidence, or consent of all the parties, a grant of vacatur would allow the government to improperly bypass the procedures set forth in the Administrative Procedure Act, 5 U.S.C. 551

et seq.,

for repealing an agency rule. On the same date, the court denied the Federal Government's motion to dismiss in

Coal River.

See

Nat'l Parks Conservation Ass'n

Salazar,

660 F. Supp. 2d 3, 4 (D.D.C. 2009).

On March 19, 2010, the parties involved in the

NPCA

and

Coal River

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

On February 20, 2014, the court vacated the 2008 rule because “OSM's determination that the revisions to the stream protection rule encompassed by the 2008 Rule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion” and that therefore our failure to initiate consultation on the 2008 rule was a violation of section 7(a)(2) of the Endangered Species Act.

NPCA

Jewell,

2014 U.S. Dist. LEXIS 152383, at * 13-* 14 (D.D.C. Feb. 20, 2014).

104

Given the court's ruling in

NPCA,

the court determined that “there is no further relief that the court can grant” in

Coal River

and dismissed that case.

Coal River

Jewell,

No. 08-2212, Memorandum Decision and Order of Dismissal at 2.

104

Pursuant to Federal Rule of Civil Procedure 25(d), S.M.R. “Sally” Jewell was automatically substituted for Ken Salazar as Secretary of the Interior.

The court in

NPCA

remanded the vacated rule to us for further proceedings consistent with the decision.

105

The court's decision also stated that vacatur of the 2008 rule resulted in reinstatement of the rule in effect before the vacated rule took effect.

106

In response, OSMRE published a notice of vacatur in the

Federal Register

107

Therefore, the proposed rule that we are publishing today uses the pre-2008 rules as the baseline for all proposed changes.

105

NPCA

Jewell,

U.S. Dist. LEXIS 152383 at * 22.

106

Id.

at * 19.

107

See 79 FR 76227-76233 (Dec. 22, 2014).

The 2009 Memorandum of Understanding

As mentioned above, on June 11, 2009, the Secretary, the Administrator of the EPA, and the Acting Assistant Secretary of the Army (Civil Works) entered into an MOU

108

implementing an interagency action plan designed to significantly reduce the harmful environmental consequences of surface coal mining operations in six Appalachian states,

109

while ensuring that future mining remains consistent with federal law. Among other things, in the MOU we committed to review our “existing regulatory authorities and procedures to determine whether regulatory modifications should be proposed to better protect the environment and public health from the impacts of Appalachian surface coal mining.” It also provides that, at a minimum, we will consider revisions to the 2008 rule and our regulatory requirements concerning approximate original contour.

110

108

The MOU can be viewed online at

www.osmre.gov/resources/mou/ASCM061109.pdf

(last accessed August 1, 2014).

109

Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia.

110

The MOU also stated that we would develop guidance clarifying how the 1983 stream buffer zone rule would be applied to reduce adverse impacts on streams if the court granted the Government's motion in

NPCA

for remand and vacatur of the 2008 rule. However, the court in

NPCA

did not grant the specific motion mentioned in the MOU. See

Nat'l Parks Conservation Ass'n

Salazar,

660 F. Supp. 2d 3, 4 (D.D.C. 2009).

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

111

The draft EIS and draft regulatory impact analysis for this rulemaking evaluate potential changes to approximate original contour requirements, including the addition of landforming and digital modeling requirements, as part of Alternative 4.

The Advance Notice of Proposed Rulemaking (ANPRM)

On November 30, 2009 (74 FR 62664-64668), we published an advance notice of proposed rulemaking, consistent with the MOU and

National Parks Conservation Association

Salazar,

660 F. Supp. 2d 3, 4 (D.D.C. 2009). Specifically, the notice described ten alternatives for revising the 2008 rule and related rules and invited the public to comment on those alternatives and to suggest other ways that the 2008 rule should be revised to better protect streams and implement the MOU. We also invited the public to identify provisions of our regulations other than the 2008 rule that should be revised to better protect the environment and the public from the impacts of Appalachian surface coal mining. We received approximately 32,750 comments during the 30-day comment period.

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

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

responsible for administration and enforcement of the Endangered Species Act with respect to anadromous and marine species.

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

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

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

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

Unlike the regulations implementing the Clean Water Act, the existing regulations implementing SMCRA contain no specific protections for ephemeral streams. As summarized in Part II of this preamble, scientific studies completed since the enactment of SMCRA and the adoption of our existing rules have documented the importance of headwater streams, including ephemeral streams, in maintaining the ecological health and function of streams downgradient of headwater streams. EPA recently completed a literature review of the importance of headwater streams and published a report summarizing the findings of more than 1,200 peer-reviewed studies.

112

With some exceptions, the report generally does not differentiate between the various types of headwaters streams, which consist of a mix of perennial, intermittent, and ephemeral streams, but it does emphasize that ephemeral streams are an important component of headwaters streams and that they have an effect on the form and function of downstream channels and aquatic life. Consistent with the findings of this report and other studies, our proposed rule includes some protections for ephemeral streams, tailored to their hydrologic and ecological functions.

112

U.S. Environmental Protection Agency,

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Final Report).

Office of Research and Development, National Center for Environmental Assessment, Washington, DC EPA/600/R-14/47F (2015). Available at

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414

(last accessed June 16, 2015).

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

A. What are the findings of the EPA report?

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

113

Id.

at ES-7.

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

114

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

115

114

Id.

at ES-8.

115

Id.

Providing Streamflow to Larger Streams

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

116

U.S. Environmental Protection Agency,

The Ecological and Hydrological Significance of Ephemeral and Intermittent Streams in the Arid and Semi-Arid American Southwest.

Office of Research and Development, Washington, DC Final Report No. EPA/600/R-08/134 (2008).

Conveyance of Water Into Local Storage Compartments

Ephemeral streams may convey water to local storage compartments, such as ponds, shallow aquifers, and streambanks, and recharge regional alluvial aquifers, depending upon the frequency, duration, magnitude, and timing of precipitation events. These local storage compartments are important sources of water for maintaining baseflow in perennial streams. Streamflow typically depends on the delayed (

i.e.,

lagged) release of shallow groundwater from local storage, especially during dry periods and in areas with shallow groundwater tables and pervious subsurfaces. Relative to their cumulative surface area, an inordinate amount of groundwater recharge occurs in headwater ephemeral and intermittent channels within arid drainage basins. Furthermore, in the southwestern United States, short-term shallow groundwater storage in alluvial floodplain aquifers, with gradual release into stream channels, is a major source of annual flow in rivers.

117

EPA,

Connectivity of Streams and Wetlands to Downstream Waters, op. cit., at ES-8 and 3-11.

Transport of Sediment and Nutrients

Ephemeral streams frequently contain boulders and woody debris that entrain and store loose, unconsolidated sediment during smaller precipitation events that is subsequently released during infrequent, high-magnitude precipitation events. Because of the abundance and distribution of headwater streams, sediment storage and transport by those streams can have a substantial cumulative effect on downstream waters; headwater streams are important sediment sources for maintaining channels and floodplains.

118

Similarly, headwater streams are important sources of organic matter (organic carbon) that serves as a downstream food source for aquatic life forms such as benthic macroinvertebrates and that enhances the fertility of agriculture on alluvial fans where some of the organic matter is deposited.

119

118

Id.

at 3-15.

119

Id.

at 3-31 and 3-32.

Biological Connectivity

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

120

Id.

at ES-8.

Because biological connections often result from passive transport of organisms or their products with water flow, biological connectivity often depends on hydrologic connectivity. Many living organisms, however, also can actively move with or against water flow; others disperse actively or passively over land by walking, flying, drifting, or “hitchhiking.” All of these organism-mediated connections form the basis of biological connectivity between headwater streams and downstream waters. Biological connections between upstream and downstream reaches can affect downstream waters via multiple pathways or functions. For organisms capable of significant upstream movement, headwater streams, including ephemeral and intermittent streams, can increase both the amount and quality of habitat available to those organisms. Many organisms require different habitats for different resources (

e.g.,

food, spawning habitat, overwintering habitat), and thus move throughout the river network—both longitudinally and laterally—over their life cycles, with some requiring dry channels to complete part of their life cycle. Furthermore, dry stream channels can facilitate dispersal of aquatic invertebrates by serving as dispersal corridors for terrestrial adult forms. Headwater streams also provide food resources to downstream waters, especially in the form of terrestrial invertebrates that accumulate in intermittent and ephemeral streams during dry periods and are then transported downstream by storm flows during and after a precipitation event.

121

Id.

at 3-37, 3-38, and 3-39.

Biogeochemical Processes

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

122

Id.

at ES-8.

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

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

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

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

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

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

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

• Breaking up overly long sections and paragraphs into multiple shorter sections and paragraphs for ease of reference and improved comprehension.

• Renumbering sections in the underground mining rules to align their numbering with the corresponding sections in the surface mining rules. This change would greatly improve ease of reference and the user-friendliness of our rules.

• Moving permitting requirements from subchapter K (performance standards) to subchapter G to consolidate permitting requirements in subchapter G.

• Restructuring subchapter G to better distinguish between baseline information requirements and reclamation plan requirements.

• Removing redundant, suspended, and obsolete provisions.

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

Existing rule

Proposed redesignation

Existing text revised in proposed rule?

§ 700.11(d)(1)(i)

§ 700.11(d)(1)

Yes, editorial.

§ 700.11(d)(1)(ii)

§ 700.11(d)(2)

Yes.

§ 700.11(d)(2)

§ 700.11(d)(3)

Yes.

§ 701.5 [paragraphs (a) and (b) of definition of “replacement of water supply”]

§§ 816.40 and 817.40

Yes.

§ 773.7(a) [last sentence]

§ 773.7(b)(1)

Yes, editorial.

§ 773.7(b)

§ 773.7(c)

Yes, editorial.

§ 773.15(n)

§ 773.15(m)

No.

§ 777.13(a)

§ 777.13(a)(1)

Yes.

§ 777.13(b)

§ 777.13(a)(2)

Yes, editorial.

§ 779.11

None

Proposed for removal; redundant of remainder of part 779.

§ 779.12(a)

None

Proposed for removal; redundant of proposed § 779.24(a)(3).

§ 779.12(b)

§ 779.17

Yes, editorial.

§ 779.24(a) through (f)

§ 779.24(a)(1) through (a)(6)

Yes.

§ 779.24(g)

§ 779.24(a)(10)

Yes.

§ 779.24(h) through (k)

§ 779.24(a)(14) through (a)(17)

No, except for editorial changes in (a)(17).

§ 779.24(l)

§ 779.24(a)(28)

No.

§ 779.25(a)(1)

§ 779.24(a)(18)

Yes.

§ 779.25(a)(2)

§ 779.24(a)(20)

Yes.

§ 779.25(a)(3)

§ 779.24(a)(21)

Yes.

§ 779.25(a)(4)

§ 779.24(a)(22)

No.

§ 779.25(a)(5)

§ 779.24(a)(23) and (a)(24)

Yes, editorial.

§ 779.25(a)(6)

§ 779.24(a)(19)

Yes.

§ 779.25(a)(7)

§ 779.24(a)(9)

Yes, editorial.

§ 779.25(a)(8)

§ 779.24(a)(25)

No.

§ 779.25(a)(9)

§ 779.24(a)(26)

Yes.

§ 779.25(a)(10)

§ 779.24(a)(8) [water wells], § 779.24(a)(27) [gas and oil wells]

Yes.

§ 780.12

§ 780.14

Yes, editorial.

§ 780.13

§ 780.15

Yes.

§ 780.14

§ 780.13

Yes.

§ 780.15

None

Proposed for removal as obsolete.

§ 780.16(a)

§ 779.20(a) through (c)

Yes.

§ 780.16(b)

§ 780.16(a) through (d)

Yes.

§ 780.16(c)

§ 779.20(d), § 780.16(e)

Yes.

§ 780.18 [in general]

§ 780.12 [in general]

Yes.

§ 780.18(b)(1)

§ 780.12(b)

Yes.

§ 780.18(b)(2)

§ 780.12(c)

Yes.

§ 780.18(b)(3)

§ 780.12(d)

Yes.

§ 780.18(b)(4)

§ 780.12(e) [in general]

Yes.

§ 780.18(b)(5)

§ 780.12(g) [in general]

Yes.

§ 780.18(b)(6)

§ 780.12(i)

Yes, editorial.

§ 780.18(b)(7)

§ 780.12(j)

Yes.

§ 780.18(b)(8)

§ 780.12(k)

Yes, editorial.

§ 780.18(b)(9)

§ 780.12(l)

Yes, editorial.

§ 780.21(a)

§ 777.13(b)

Yes.

§ 780.21(b)(1) [location and ownership information in first sentence]

§ 779.24(a)(7)

Yes, editorial.

§ 780.21(b)(1) [except location and ownership information in first sentence]

§ 780.19(b)

Yes.

§ 780.21(b)(2) [first part of first sentence through “impoundments”]

§ 779.24(a)(9)

Yes, editorial.

§ 780.21(b)(2) [the part of the first sentence that pertains to discharges]

§ 779.24(a)(12)

Yes, editorial.

§ 780.21(b)(2) [except the part of the first sentence that precedes “and information on . . .”]

§ 780.19(c)

Yes.

§ 780.21(b)(3)

§ 780.20(b)

Yes.

§ 780.21(c)

§ 780.19(g)

Yes.

§ 780.21(d)

§ 777.13(d)

Yes.

§ 780.21(e)

§ 780.22(b)(1)

Yes.

§ 780.21(f)(1) through (f)(3)

§ 780.20(a)

Yes.

§ 780.21(f)(4)

§ 780.20(c)(1)

Yes.

§ 780.21(g)

§ 780.21

Yes.

§ 780.21(h)

§ 780.22(a)

Yes.

§ 780.21(i)

§ 780.23(a)

Yes.

§ 780.21(j)

§ 780.23(b)

Yes.

§ 780.22(a)

§ 780.19(a)(1)

Yes.

§ 780.22(b)

§ 780.19(f)(1) through (3)

Yes.

§ 780.22(c)

§ 780.19(f)(4)

Yes, editorial.

§ 780.22(d)

§ 780.19(f)(5)

Yes, editorial.

§ 780.23(a)

§ 779.22

Yes.

§ 780.23(b) [except (b)(3)]

§ 780.24(a)

Yes.

§ 780.23(b)(3)

§ 780.12(m)

Yes, editorial.

§ 780.29

§ 780.29(c)

Yes.

§ 780.35(a)

§ 780.35(f) and (h)

Yes, editorial.

§ 780.35(b)

§ 780.35(g)

Yes.

§ 780.35(c)

§ 780.35(i)

Yes, editorial.

§ 783.11

None

Proposed for removal; redundant of remainder of part 783.

§ 783.12(a)

None

Proposed for removal; redundant of proposed § 783.24(a)(3).

§ 783.12(b)

§ 783.17

Yes, editorial.

§ 783.24(a) through (f)

§ 783.24(a)(1) through (a)(6)

Yes.

§ 783.24(g)

§ 783.24(a)(10)

Yes.

§ 783.24(h) through (k)

§ 783.24(a)(14) through (a)(17)

No, except for editorial changes in (a)(17).

§ 783.24(l)

§ 783.24(a)(28)

No.

§ 783.25(a)(1)

§ 783.24(a)(18)

Yes.

§ 783.25(a)(2)

§ 783.24(a)(20)

Yes.

§ 783.25(a)(3), [Suspended August 4, 1980]

§ 783.24(a)(21)

Yes. We are re-proposing part of this rule and proposing to remove the remainder.

§ 783.25(a)(4)

§ 783.24(a)(22)

Yes.

§ 783.25(a)(5)

§ 783.24(a)(23) and (a)(24)

Yes.

§ 783.25(a)(6)

§ 783.24(a)(19)

Yes.

§ 783.25(a)(7)

§ 783.24(a)(9)

Yes, editorial.

§ 783.25(a)(8), [Suspended August 4, 1980]

§ 783.24(a)(25)

Yes, editorial. We are re-proposing this rule.

§ 783.25(a)(9), [Suspended August 4, 1980]

§ 783.24(a)(26)

Yes. We are re-proposing part of this rule and proposing to remove the remainder.

§ 783.25(a)(10)

§ 783.24(a)(8) [water wells], § 783.24(a)(27) [gas and oil wells]

Yes.

§ 784.12

§ 784.14

Yes, editorial.

§ 784.13 [in general]

§ 784.12 [in general]

Yes.

§ 784.13(b)(1)

§ 784.12(b)

Yes.

§ 784.13(b)(2)

§ 784.12(c)

Yes.

§ 784.13(b)(3)

§ 784.12(d)

Yes.

§ 784.13(b)(4)

§ 784.12(e) [in general]

Yes.

§ 784.13(b)(5)

§ 784.12(g) [in general]

Yes.

§ 784.13(b)(6)

§ 784.12(i)

Yes, editorial.

§ 784.13(b)(7)

§ 784.12(j)

Yes.

§ 784.13(b)(8)

§ 784.12(k)

Yes, editorial.

§ 784.13(b)(9)

§ 784.12(l)

Yes, editorial.

§ 784.14(a)

§ 777.13(b)

Yes.

§ 784.14(b)(1) [location and ownership information in first sentence]

§ 783.24(a)(7)

Yes, editorial.

§ 784.14(b)(1) [except location and ownership information in first sentence]

§ 784.19(b)

Yes.

§ 784.14(b)(2) [the part of the first sentence that precedes “impoundments”]

§ 783.24(a)(9)

Yes, editorial.

§ 784.14(b)(2) [the part of the first sentence that pertains to discharges]

§ 783.24(a)(12)

Yes, editorial.

§ 784.14(b)(2) [except the part of the first sentence that precedes “and information on . . .”]

§ 784.19(c)

Yes.

§ 784.14(b)(3)

§ 784.20(b)

Yes

§ 784.14(c)

§ 784.19(g)

Yes.

§ 784.14(d)

§ 777.13(d)

Yes.

§ 784.14(e)(1) through (e)(3)

§ 784.20(a)

Yes.

§ 784.14(e)(4)

§ 784.20(c)(1)

Yes.

§ 784.14(f)

§ 784.21

Yes.

§ 784.14(g)

§ 784.22(a)

Yes.

§ 784.14(h)

§ 784.23(a)

Yes.

§ 784.14(i)

§ 784.23(b)

Yes.

§ 784.15(a)

§ 783.22

Yes.

§ 784.15(b) [except (b)(3)]

§ 784.24(a)

Yes.

§ 784.15(b)(3)

§ 784.12(m)

Yes, editorial.

§ 784.17

§ 784.31

No.

§ 784.18

§ 784.33

No.

§ 784.19

§ 784.35

Yes.

§ 784.20

§ 784.30

Yes.

§ 784.21(a)

§ 783.20(a) and (b)

Yes.

§ 784.21(b)

§ 784.16(a) through (d)

Yes.

§ 784.21(c)

§ 783.20(d), § 784.16(e)

Yes.

§ 784.22(a)

§ 784.19(a)(1)

Yes.

§ 784.22(b)

§ 784.19(f)(1) through (4)

Yes.

§ 784.22(c)

§ 784.19(f)(5)

Yes, editorial.

§ 784.22(d)

§ 784.19(f)(6)

Yes, editorial.

§ 784.23

§ 784.13

Yes.

§ 784.24

§ 784.37

Yes.

§ 784.25

§ 784.26

Yes, editorial.

§ 784.26

§ 784.12(f)

Yes.

§ 784.29

§ 784.29(c)

Yes

§ 784.30

§ 784.38

Yes, editorial.

§ 784.200(a)

§ 784.24(c)

Yes.

§ 785.14(b)

§ 701.5 [definition of “mountaintop removal mining”]

Yes, editorial.

§ 785.14(c) [introductory text]

§ 785.14(b) [introductory text]

Yes, editorial.

§ 785.14(c)(1) [introductory text]

§ 785.14(b)(1)

Yes, editorial.

§ 785.14(c)(1)(i)

§ 785.14(b)(2)

Yes, editorial.

§ 785.14(c)(1)(ii)

§ 785.14(b)(3)

Yes, editorial.

§ 785.14(c)(1)(iii) [except paragraph (c)(1)(iii)(G)]

§ 785.14(b)(4)

Yes, editorial.

§ 785.14(c)(1)(iii)(G)

§ 785.14(b)(5)

Yes, editorial.

§ 785.14(c)(1)(iv)

§ 785.14(b)(6)

Yes, editorial.

§ 785.14(c)(1)(v)

§ 785.14(b)(7)

Yes, editorial.

§ 785.14(c)(2)

§ 785.14(b)(8)

Yes, editorial.

§ 785.14(c)(3)

None

Proposed for removal as unnecessary.

§ 785.14(c)(4)

§ 785.14(b)(12)

Yes, editorial.

§ 785.14(c)(5)

§ 785.14(c)

Yes.

§ 785.14(d)(1) and (2)

§ 785.14(d)(1)

Yes.

§ 785.14(d)(3)

§ 785.14(d)(2)

Yes, editorial.

§ 785.16(a) [introductory text]

§ 785.16(a) (introductory text)

Yes, editorial.

§ 785.16(a)(1)

Yes, editorial.

§ 785.16(a)(2)

Yes, editorial.

§ 785.16(a)(3)

§ 785.16(a)(9)

Yes.

§ 785.16(a)(4)

§ 785.16(a)(10)

Yes.

§ 785.16(b)(1)

None

Proposed for removal as unnecessary.

§ 785.16(b)(2)

§ 785.16(b)(1)

Yes, editorial.

§ 785.16(c) and (d)

§ 785.16(b)(2)

Yes.

§ 785.16(e)

§ 785.16(b)(3)

Yes, editorial.

§ 785.16(f)

§ 785.16(b)(4)

Yes, editorial.

§ 785.25(b) [first sentence]

§ 785.25(b)(1)

Yes, editorial.

§ 785.25(b) [except first sentence]

§ 785.16(b)(2)

Yes, editorial.

§ 800.11(e)

§ 800.9

Yes.

§ 800.11(a) through (d)

§ 800.11

Yes, editorial.

§ 800.15(c) [first sentence]

§ 800.15(a)(2)(ii)

Yes, editorial.

§ 800.16(e)(2)

§ 800.30(b)

Yes.

§ 800.17

None

Proposed for removal; redundant of remainder of part 800.

§ 800.30(a)

§ 800.30(a)(1)

Yes.

§ 800.30(b)

§ 800.30(a)(3)

Yes.

§ 800.40(a)

§ 800.40

Yes, editorial, except for (b)(2)(vi), which has substantive changes.

§ 800.40(b)(1)

§ 800.41

Yes, editorial, except for (a)(2), which has substantive changes.

§ 800.40(b)(2)

§ 800.43(a)

Yes, editorial.

§ 800.40(c)

§ 800.42

Yes.

§ 800.40(d)

§ 800.43(b)

Yes, editorial.

§ 800.40(e)

§ 800.43(c)

Yes, editorial.

§ 800.40(f) through (h)

§ 800.44(a) through (c)

Yes, editorial.

§ 816.13

§ 816.13(a), (c), (d), and (f)

Yes, editorial.

§ 816.14

§ 816.13(b)

Yes, editorial.

§ 816.15

§ 816.13(e)

Yes, editorial.

§ 816.22(a)(1) through (4)

§ 816.22(a)(1) and (2)

Yes.

§ 816.22(b)

§ 780.12(e)(2), § 816.22(c)

Yes.

§ 816.22(c)

§ 816.22(b)

Yes.

§ 816.22(d)(1)

§ 816.22(e)(1)

Yes.

§ 816.22(d)(2)

Yes, editorial.

§ 816.22(d)(3)

§ 816.22(e)(3)

Yes, editorial.

§ 816.22(d)(4)

None

Proposed for removal; covered by proposed § 780.12(g)(1)(iii).

§ 816.22(e)

§ 780.12(e)(1)(ii)

Yes.

§ 816.41(a), (b), and (d)

§ 816.34(a) through (c)

Yes.

§ 816.41(c)

§ 816.35

Yes.

§ 816.41(e)

§ 816.36

Yes.

§ 816.41(f)

§ 816.38

Yes.

§ 816.41(g)

§ 816.39

Yes.

§ 816.41(h)

§ 816.40

Yes.

§ 816.41(i)

§ 816.41

Yes.

§ 816.42

§ 816.42(a)

Yes.

§ 816.43(a)(3) [last sentence], § 816.43(b)

§ 780.28(c), § 816.57(b)

Yes.

§ 816.43(c)(3)

Merged into § 816.43(a)(5)(ii)

Yes.

§ 816.46(b)(2), [Suspended December 22, 1986]

None

Proposed for removal.

§ 816.46(c)(1)(i)

None

Proposed for removal as unnecessary.

§ 816.46(c)(1)(ii) and (iii)

§ 816.46(c)(1)(i) and (ii)

Yes.

§ 816.57(a) [first sentence]

§ 816.57(a)(1)

Yes.

§ 816.57(a) [except first sentence]

§ 780.28(e)(2)

Yes

§ 816.57(b)

Merged into § 816.11(e)

Yes, editorial.

§ 816.71(b)(1)

§ 780.35(f) and (j)

Yes, editorial.

§ 816.71(b)(2)

§ 816.71(b)(1)

Yes, editorial.

§ 816.71(c)

§ 780.35(e)(2) and (3)

Yes.

§ 816.71(d)(1)

§ 780.35(g)(1) and (4)

Yes.

§ 816.71(d)(2) [first sentence]

§ 816.71(b)(2)

Yes.

§ 816.71(d)(2) [second sentence]

Merged into § 780.35(i)

Yes, editorial.

§ 816.71(e)(1)

§ 816.71(d)

Yes.

§ 816.71(e)(2)

§ 816.71(g)(1)

Yes.

§ 816.71(e)(3)

§ 816.71(h)

Yes.

§ 816.71(e)(4)

§ 816.71(i)

Yes.

§ 816.71(e)(5)

§ 816.71(g)(3)

Yes, editorial.

§ 816.71(g)

§ 816.71(j)

Yes, editorial.

§ 816.71(h)

§ 816.71(k)

Yes.

§ 816.71(i)

§ 816.71(l)

Yes.

§ 816.71(j)

§ 816.71(m)

Yes, editorial.

§ 816.72(a)(1)

§ 816.71(e)(2)

Yes, editorial.

§ 816.72(a)(2)

§ 816.71(e)(1)

Yes.

§ 816.72 [except paragraph (a)]

None

Proposed for removal.

§ 816.73

None

Proposed for removal.

§ 816.74(c) [first sentence]

§ 816.74(c)(1)

Yes, editorial.

§ 816.74(c) [second sentence]

§ 816.74(c)(2)

Yes, editorial.

§ 816.74(c) [third sentence]

§ 816.74(d)(1)

Yes, editorial.

§ 816.74(c) [fourth sentence]

§ 816.74(d)(2)

Yes, editorial.

§ 816.74(d) [except (d)(4)]

§ 816.74(e)

Yes.

§ 816.74(d)(4)

§ 816.74(c)(3)

Yes.

§ 816.74(e)

§ 816.74(f)

Yes, editorial.

§ 816.74(f)

§ 816.74(g)

Yes, editorial.

§ 816.74(g)

§ 816.74(h)

Yes, editorial.

§ 816.74(h)

None

Proposed for removal.

§ 816.81(a) [first sentence]

§ 816.81(a)

Yes, editorial.

§ 816.81(a) [except first sentence]

§ 816.81(b)

Yes.

§ 816.81(b)

§ 816.81(c)

Yes, editorial.

§ 816.81(c)

§ 816.81(d)

Yes.

§ 816.81(d)

§ 816.81(e)

Yes, editorial.

§ 816.81(e)

§ 816.81(g)

Yes, editorial.

§ 816.81(f)

§ 816.81(h)

Yes, editorial.

§ 816.83 [introductory text]

§ 816.83(a)

Yes, editorial.

§ 816.83(a)

§ 816.83(b)

Yes.

§ 816.83(b)

§ 816.83(c)

Yes, editorial.

§ 816.83(c)

§ 816.83(d)

Yes.

§ 816.83(d)

§ 816.83(e)

Yes, editorial.

§ 816.84 [introductory text]

§ 816.84(a)

Yes, editorial.

§ 816.84(a)

§ 816.84(b)

Yes, editorial.

§ 816.84(b)

§ 816.84(c)

Yes, editorial.

§ 816.84(c)

§ 816.84(d)

Yes, editorial.

§ 816.84(d)

§ 816.84(e)

Yes.

§ 816.84(e)

§ 780.25(d)(3)(iv)

Yes, editorial.

§ 816.97(d)

§ 816.97(b)(5) and (c)(4)

Yes, editorial.

§ 816.97(e)

§ 816.97(d)

Yes.

§ 816.97(f)

§ 816.97(e)

Yes.

§ 816.97(g)

§ 816.97(f)

Yes.

§ 816.97(h)

§ 816.97(g)

Yes.

§ 816.101 [Suspended August 31, 1992]

None

Proposed for removal.

§ 816.102(a)(2)

§ 816.102(a)(3) [introductory text]

Yes.

§ 816.102(a)(3)

§ 816.102(a)(4)

No.

§ 816.102(a)(4)

§ 816.102(a)(5)

Yes.

§ 816.102(a)(5)

§ 816.102(a)(6)

No.

§ 816.102(b)

§ 816.102(b) [introductory text] and (b)(1)

Yes, editorial.

§ 816.102(d)

§ 816.102(b)(3)

Yes.

§ 816.102(f)

§ 816.102(d)

Yes.

§ 816.102(g)

§ 816.102(a)(2)

Yes.

§ 816.102(h)

§ 816.102(a)(3)(i)

Yes.

§ 816.102(i)

§ 816.102(a)(3)(ii)

Yes.

§ 816.102(j)

§ 816.102(f)

Yes.

§ 816.102(k)(1)

§ 816.102(a)(1)(iii)

Yes, editorial.

§ 816.102(k)(2)

§ 816.102(a)(1)(iv)

Yes, editorial.

§ 816.102(k)(3)(i)

§ 816.102(a)(1)(i)

Yes, editorial.

§ 816.102(k)(3)(ii)

§ 816.102(a)(1)(ii)

Yes, editorial.

§ 816.102(k)(3)(iii)

§ 816.102(a)(1)(v)

Yes, editorial.

§ 816.111(a) [except (a)(2) and (a)(4)]

§ 816.111(a) and (b)

Yes.

§ 816.111(a)(2)

§ 780.12(g)(3)(i)

Yes.

§ 816.111(a)(4)

§ 780.12(g)(3)(ii)

Yes.

§ 816.111(b)(1)

§ 780.12(g)(3)(iii)

No.

§ 816.111(b)(2)

§ 780.12(g)(3)(iv)

Yes.

§ 816.111(b)(3)

§ 780.12(g)(3)(v)

Yes, editorial.

§ 816.111(b)(4)

§ 780.12(g)(3)(vi)

No.

§ 816.111(b)(5)

§ 780.12(g)(3)(vii)

Yes, editorial.

§ 816.111(c)

§ 780.12(g)(4)

Yes.

§ 816.111(d)

§ 780.12(g)(5)

Yes, editorial.

§ 816.113

§ 816.111(e)

Yes.

§ 816.114

§ 816.111(d)

Yes.

§ 816.116(a) [introductory text]

§ 816.116(b)

Yes.

§ 816.116(a)(1)

§ 816.116(a)

Yes, editorial.

§ 816.116(a)(2) [first sentence]

§ 816.116(c)

Yes.

§ 816.116(a)(2) [second sentence]

§ 816.116(d)

Yes, editorial.

§ 816.116(b) [introductory text], (b)(1), (b)(2), and introductory text of (b)(3)

None

Proposed for removal; superseded by remainder of proposed § 816.116.

§ 816.116(b)(3)(i)

§ 816.116(e)

Yes.

§ 816.116(b)(3)(ii)

§ 816.116(f)(1) and (f)(2)

Yes.

§ 816.116(b)(3)(iii)

§ 816.116(f)(3)

Yes.

§ 816.116(b)(4)

§ 816.116(g)

Yes.

§ 816.116(b)(5)

§ 816.116(h)

Yes, editorial.

§ 816.116(c)

§ 816.115

Yes.

§ 816.133(a) [introductory text]

§ 816.133 [introductory text]

Yes, editorial.

§ 816.133(a)(1)

§ 816.133(a)

Yes, editorial.

§ 816.133(a)(2)

§ 816.133(b)

Yes, editorial.

§ 816.133(b) [first sentence]

§ 780.24(b)

Yes.

§ 816.133(b) [last sentence]

§ 780.24(e)

Yes.

§ 816.133(c)

§ 780.24(b)

Yes.

§ 816.133(d)(1)

None

Proposed for removal; redundant of § 785.16(a).

§ 816.133(d)(2)

§ 785.16(a)(2)

Yes, editorial.

§ 816.133(d)(3)

None

Proposed for removal as unnecessary and duplicative.

§ 816.133(d)(4)

§ 785.16(a)(3)

Yes, editorial.

§ 816.133(d)(5)

§ 785.16(a)(5)

Yes, editorial.

§ 816.133(d)(6)

§ 785.16(a)(9)

Yes.

§ 816.133(d)(7)

§ 785.16(a)(6)

Yes, editorial.

§ 816.133(d)(8)

§ 785.16(a)(7)

Yes, editorial.

§ 816.133(d)(9)

§ 785.16(a)(10)

Yes, editorial.

§ 816.133(d)(10)

§ 785.16(a)(4)

Yes, editorial.

§ 816.200

None

Proposed for removal as obsolete.

§ 817.13

§ 817.13(a), (d), (e), and (g)

Yes, editorial.

§ 817.14(a)

§ 817.13(b)

Yes, editorial.

§ 817.14(b)

§ 817.13(c)

Yes, editorial.

§ 817.15

§ 817.13(f)

Yes, editorial.

§ 817.22(a)(1) through (4)

§ 817.22(a)(1) and (2)

Yes.

§ 817.22(b)

§ 784.12(e)(2), § 817.22(c)

Yes.

§ 817.22(c)

§ 817.22(b)

Yes.

§ 817.22(d)(1)

§ 817.22(e)(1)

Yes.

§ 817.22(d)(2)

Yes, editorial.

§ 817.22(d)(3)

§ 817.22(e)(3)

Yes, editorial.

§ 817.22(d)(4)

None

Proposed for removal; covered by proposed § 784.12(g)(1)(iii).

§ 817.22(e)

§ 784.12(e)(1)(ii)

Yes.

§ 817.41(a), (b), and (d)

§ 817.34(a) through (c)

Yes.

§ 817.41(c)

§ 817.35

Yes.

§ 817.41(e)

§ 817.36

Yes.

§ 817.41(f)

§ 817.38

Yes.

§ 817.41(g)

§ 817.39

Yes.

§ 817.41(j)

§ 817.40

Yes.

§ 817.41(h)

§ 817.41

Yes.

§ 817.41(i)

§ 817.44

Yes, editorial.

§ 817.42

§ 817.42(a)

Yes.

§ 817.43(a)(3) [last sentence], § 817.43(b)

§ 784.28(c), § 817.57(b)

Yes.

§ 817.43(c)(3)

Merged into § 817.43(a)(5)(ii)

Yes.

§ 817.46(b)(2) [Suspended December 22, 1986]

None

Proposed for removal.

§ 817.46(c)(1)(i)

None

Proposed for removal as unnecessary.

§ 817.46(c)(1)(ii) and (iii)

§ 817.46(c)(1)(i) and (ii)

Yes.

§ 817.57(a) [first sentence]

§ 817.57(a)(1)

Yes.

§ 817.57(a) [except first sentence]

§ 784.28(e)(2)

Yes.

§ 817.57(b)

Merged into § 817.11(e)

Yes, editorial.

§ 817.71(b)(1)

§ 784.35(f) and (j)

Yes, editorial.

§ 817.71(b)(2)

§ 817.71(b)(1)

Yes, editorial.

§ 817.71(c)

§ 784.35(e)(2) and (3)

Yes.

§ 817.71(d)(1)

§ 784.35(g)(1) and (4)

Yes.

§ 817.71(d)(2) [first sentence]

§ 817.71(b)(2)

Yes.

§ 817.71(d)(2) [second sentence]

Merged into § 784.35(i)

Yes, editorial.

§ 817.71(e)(1)

§ 817.71(d)

Yes.

§ 817.71(e)(2)

§ 817.71(g)(1)

Yes.

§ 817.71(e)(3)

§ 817.71(h)

Yes.

§ 817.71(e)(4)

§ 817.71(i)

Yes.

§ 817.71(e)(5)

§ 817.71(g)(3)

Yes, editorial.

§ 817.71(g)

§ 817.71(j)

Yes.

§ 817.71(h)

§ 817.71(k)

Yes.

§ 817.71(i)

§ 817.71(l)

Yes.

§ 817.71(j)

§ 817.71(m)

Yes, editorial.

§ 817.72(a)(1)

§ 817.71(e)(2)

Yes, editorial.

§ 817.72(a)(2)

§ 817.71(e)(1)

Yes.

§ 817.72 [except paragraph (a)]

None

Proposed for removal.

§ 817.73

None

Proposed for removal.

§ 817.74(c) [first sentence]

§ 817.74(c)(1)

Yes, editorial.

§ 817.74(c) [second sentence]

§ 817.74(c)(2)

Yes, editorial.

§ 817.74(c) [third sentence]

§ 817.74(d)(1)

Yes, editorial.

§ 817.74(c) [fourth sentence]

§ 817.74(d)(2)

Yes, editorial.

§ 817.74(d) [except (d)(4)]

§ 817.74(e)

Yes.

§ 817.74(d)(4)

§ 817.74(c)(3)

Yes.

§ 817.74(e)

§ 817.74(f)

Yes, editorial.

§ 817.74(f)

§ 817.74(g)

Yes, editorial.

§ 817.74(g)

§ 817.74(h)

Yes, editorial.

§ 817.74(h)

None

Proposed for removal.

§ 817.81(a) [first sentence]

§ 817.81(a)

Yes, editorial.

§ 817.81(a) [except first sentence]

§ 817.81(b)

Yes.

§ 817.81(b)

§ 817.81(c)

Yes, editorial.

§ 817.81(c)

§ 817.81(d)

Yes.

§ 817.81(d)

§ 817.81(e)

Yes.

§ 817.81(e)

§ 817.81(g)

Yes, editorial.

§ 817.81(f)

§ 817.81(h)

Yes, editorial.

§ 817.83 [introductory text]

§ 817.83(a)

Yes, editorial.

§ 817.83(a)

§ 817.83(b)

Yes.

§ 817.83(b)

§ 817.83(c)

Yes, editorial.

§ 817.83(c)

§ 817.83(d)

Yes.

§ 817.83(d)

§ 817.83(e)

Yes, editorial.

§ 817.84 [introductory text]

§ 817.84(a)

Yes, editorial.

§ 817.84(a)

§ 817.84(b)

Yes, editorial.

§ 817.84(b)

§ 817.84(c)

Yes, editorial.

§ 817.84(c)

§ 817.84(d)

Yes, editorial.

§ 817.84(d)

§ 817.84(e)

Yes.

§ 817.84(e)

§ 784.25(d)(3)(iv)

Yes, editorial.

§ 817.97(d)

§ 817.97(b)(5) and (c)(4)

Yes, editorial.

§ 817.97(e)

§ 817.97(d)

Yes.

§ 817.97(f)

§ 817.97(e)

Yes.

§ 817.97(g)

§ 817.97(f)

Yes.

§ 817.97(h)

§ 817.97(g)

Yes.

§ 817.102(a)(2)

§ 817.102(a)(3) [introductory text]

Yes.

§ 817.102(a)(3)

§ 817.102(a)(4)

No.

§ 817.102(a)(4)

§ 817.102(a)(5)

Yes.

§ 817.102(a)(5)

§ 817.102(a)(6)

No.

§ 817.102(b)

§ 817.102(b) [introductory text] and (b)(1)

Yes, editorial.

§ 817.102(d)

§ 817.102(b)(2)

Yes.

§ 817.102(f)

§ 817.102(d)

Yes.

§ 817.102(g)

§ 817.102(a)(2)

Yes.

§ 817.102(h)

§ 817.102(a)(3)(i)

Yes.

§ 817.102(i)

§ 817.102(a)(3)(ii)

Yes.

§ 817.102(j)

§ 817.102(f)

Yes.

§ 817.102(k)(1)

§ 817.102(a)(1)(i)

Yes, editorial.

§ 817.102(k)(2)

§ 817.102(a)(1)(ii)

Yes, editorial.

§ 817.102(l)

§ 817.102(a)(1)(vii)

Yes.

§ 817.111(a) [except (a)(2) and (a)(4)]

§ 817.111(a) and (b)

Yes.

§ 817.111(a)(2)

§ 784.12(g)(3)(i)

Yes.

§ 817.111(a)(4)

§ 784.12(g)(3)(ii)

Yes.

§ 817.111(b)(1)

§ 784.12(g)(3)(iii)

No.

§ 817.111(b)(2)

§ 784.12(g)(3)(iv)

Yes.

§ 817.111(b)(3)

§ 784.12(g)(3)(v)

Yes, editorial.

§ 817.111(b)(4)

§ 784.12(g)(3)(vi)

No.

§ 817.111(b)(5)

§ 784.12(g)(3)(vii)

Yes, editorial.

§ 817.111(c)

§ 784.12(g)(4)

Yes.

§ 817.111(d)

§ 784.12(g)(5)

Yes, editorial.

§ 817.113

§ 817.111(e)

Yes.

§ 817.114

§ 817.111(d)

Yes.

§ 817.116(a) [introductory text]

§ 817.116(b)

Yes.

§ 817.116(a)(1)

§ 817.116(a)

Yes, editorial.

§ 817.116(a)(2) [first sentence]

§ 817.116(c)

Yes.

§ 817.116(a)(2) [second sentence]

§ 817.116(d)

Yes, editorial.

§ 817.116(b) [introductory text], (b)(1), (b)(2), and introductory text of (b)(3)

None

Proposed for removal; superseded by remainder of proposed § 817.116.

§ 817.116(b)(3)(i)

§ 817.116(e)

Yes.

§ 817.116(b)(3)(ii)

§ 817.116(f)(1) and (f)(2)

Yes.

§ 817.116(b)(3)(iii)

§ 817.116(f)(3)

Yes.

§ 817.116(b)(4)

§ 817.116(g)

Yes.

§ 817.116(b)(5)

§ 817.116(h)

Yes, editorial.

§ 817.116(c)

§ 817.115

Yes.

§ 817.121(c)(1)

§ 817.121(c)

Yes, editorial.

§ 817.121(c)(2)

§ 817.121(d)

Yes, editorial.

§ 817.121(c)(3)

§ 817.121(e)

Yes, editorial.

§ 817.121(c)(4)(i) through (c)(4)(iv) [Suspended December 22, 1999]

None

Proposed for removal.

§ 817.121(c)(4)(v)

§ 817.121(f)

Yes, editorial.

§ 817.121(c)(5)

§ 817.121(g)

Yes.

§ 817.121(d)

§ 817.121(h)

Yes, editorial.

§ 817.121(e)

§ 817.121(i)

Yes, editorial.

§ 817.121(f)

§ 817.121(j)

Yes, editorial

§ 817.121(g)

§ 817.121(k)

Yes, editorial.

§ 817.133(a) [introductory text]

§ 817.133 [introductory text]

Yes, editorial.

§ 817.133(a)(1)

§ 817.133(a)

Yes, editorial.

§ 817.133(a)(2)

§ 817.133(b)

Yes, editorial.

§ 817.133(b) [first sentence]

§ 784.24(b)

Yes.

§ 817.133(b) [last sentence]

§ 784.24(e)

Yes.

§ 817.133(c)

§ 784.24(b)

Yes.

§ 817.133(d)(1)

None

Proposed for removal; redundant of § 785.16(a).

§ 817.133(d)(2)

§ 785.16(a)(2)

Yes, editorial.

§ 817.133(d)(3)

None

Proposed for removal as unnecessary and duplicative.

§ 817.133(d)(4)

§ 785.16(a)(3)

Yes, editorial.

§ 817.133(d)(5)

§ 785.16(a)(5)

Yes, editorial.

§ 817.133(d)(6)

§ 785.16(a)(9)

Yes.

§ 817.133(d)(7)

§ 785.16(a)(6)

Yes, editorial.

§ 817.133(d)(8)

§ 785.16(a)(7)

Yes, editorial.

§ 817.133(d)(9)

§ 785.16(a)(10)

Yes, editorial.

§ 817.133(d)(10)

§ 785.16(a)(4)

Yes, editorial.

§ 817.200 [except paragraph (d)(1)]

None

Proposed for removal as obsolete.

§ 817.200(d)(1)

§ 784.24(c)

Yes.

§ 824.11(a) [introductory text] and (a)(1)

§ 824.11(a)

Yes, editorial.

§ 824.11(a)(2) and (a)(3)

§ 701.5 [definition of “mountaintop removal mining”]

Yes, editorial.

§ 824.11(a)(4)

None

Proposed for removal; redundant of proposed § 785.14(b)(3).

§ 824.11(a)(5)

§ 824.11(b)(1)

Yes.

§ 824.11(a)(6)

§ 824.11(b)(2)

Yes.

§ 824.11(a)(7)

§ 824.11(b)(3)

Yes, editorial.

§ 824.11(a)(8)

§ 824.11(b)(4)

Yes.

§ 824.11(a)(9)

§ 785.14(b)(9)

Yes.

§ 824.11(a)(10)

None

Proposed for removal; redundant of proposed paragraph (b)(1).

§ 824.11(a)(11)

§ 824.11(b)(5)

Yes.

§ 827.12(a) through (l)

Merged with introductory text of § 827.12

Yes, editorial.

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

i.e.,

those provisions that we propose to redesignate.

Proposed rule

Existing rule counterpart

Existing text revised in proposed rule?

§ 700.11(d)(1)

§ 700.11(d)(1)(i)

Yes, editorial.

§ 700.11(d)(2)

§ 700.11(d)(1)(ii)

Yes.

§ 700.11(d)(3)

§ 700.11(d)(2)

Yes.

§ 701.5 [definition of “mountaintop removal mining”]

§ 785.14(b), § 824.11(a)(2) and (a)(3)

Yes, editorial.

§ 773.7(b)(1)

§ 773.7(a) [last sentence]

Yes, editorial.

§ 773.7(c)

§ 773.7(b)

Yes, editorial.

§ 773.15(m)

§ 7

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.