Stream Protection Rule

Federal RegisterDec 20, 2016

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

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

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

RIN 1029-AC63

Stream Protection Rule

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This rule is effective January 19, 2017.

FOR FURTHER INFORMATION CONTACT:

For the final rule:

Dennis G. Rice, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202-208-2829. Kathleen G. Sheehan, Esq., Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 3 Parkway Center, 2nd Floor, Pittsburgh, Pennsylvania 15220. Telephone: 412-937-2829.

For the final environmental impact statement:

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

For the final regulatory impact analysis:

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

For information collection matters:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Why are we revising our regulations?

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

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

V. Tabular Summaries of Revisions and Organizational Changes

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

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

B. Section 701.5: Definitions

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

D. Part 773: Requirements for Permits and Permit Processing

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

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

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

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

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

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

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

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

F. Part 777: General Content Requirements for Permit Applications

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

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

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

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

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

1. Section 779.1: What does this part do?

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

3. Why are we removing 30 CFR 779.11 and 779.12?

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

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

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

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

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

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

1. Section 780.1: What does this part do?

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

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

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

5. Why are we removing the provisions for air pollution control plans in previous 30 CFR 780.15?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9. Why are we removing the provisions for air pollution plans in previous 30 CFR 784.26?

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

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

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

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

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

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

16. Why are we removing 30 CFR 784.200?

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

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

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

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

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

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

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

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

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

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

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

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

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

9. Why are we removing 30 CFR 800.17?

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Section 816.1: What does this part do?

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

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

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

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

6. Section 816.35: How must I monitor groundwater?

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

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

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

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

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

12. Section 816.42: What Clean Water Act requirements apply to discharges from my operation?

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

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

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

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

17. Section 816.49: What requirements apply to impoundments?

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

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

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

21. Section 816.59: How must I maximize coal recovery?

22. Section 816.61: Use of Explosives: General Requirements

23. Section 816.62: Use of Explosives: Preblasting Survey

24. Section 816.64: Use of Explosives: Blasting Schedule

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

42. Why are we removing 30 CFR 816.101?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9. Why are we removing the interpretive rules in 30 CFR 817.200?

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

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

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

XVIII. How will this rule affect state regulatory programs?

IX. Procedural Matters and Required Determinations

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

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act

D. Unfunded Mandates

E. Executive Order 12630—Takings

F. Executive Order 13132—Federalism

G. Executive Order 12988—Civil Justice Reform

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

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

J. Paperwork Reduction Act

K. National Environmental Policy Act

L. Data Quality Act

I. Executive Summary

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

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

30 U.S.C. 1201

et seq.

The rule has the following seven major elements:

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

i.e.,

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

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

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

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

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

• Sixth, the rule ensures that land disturbed by surface coal mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before mining or to higher or better uses of which there is reasonable likelihood. Soil characteristics and the degree and type of revegetation have a significant impact on surface-water runoff quantity and quality as well as on aquatic life and the terrestrial ecosystems dependent upon perennial and intermittent streams. The rule also requires use of native species to revegetate reclaimed mine sites unless and until a conflicting postmining land use, such as intensive agriculture, is implemented.

• Seventh, the rule updates measures to protect threatened and endangered species and designated critical habitat under the Endangered Species Act of 1973.

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

16 U.S.C. 1531

et seq.

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

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

30 U.S.C. 1202.

Summary of Benefits and Costs

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

• Restoration of 22 miles of intermittent and perennial streams per year.

• Improved water quality in 263 miles of intermittent and perennial streams per year downstream of minesites.

• Four miles of intermittent and perennial streams per year not being covered by excess spoil fills or coal mine waste facilities.

• Improved reforestation of 2,486 acres of mined land per year.

• Avoidance by mining operations of eight acres of forest per year.

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

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

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

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

II. Why are we revising our regulations?

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

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

It also updates our regulations concerning compliance with

the Endangered Species Act of 1973.

In addition, as proposed, we have revised and reorganized our regulations for clarity, to make them more user-friendly, to remove obsolete and redundant provisions, and to implement plain language principles.

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.

The preamble to the proposed rule sets forth the detailed rationale for adoption of this rule and the history of prior rulemaking and litigation concerning stream buffer zones and stream protection.

See

80 FR 44436-44585 (Jul. 27, 2015).

Final Environmental Impact Statement (EIS)

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

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).

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

On July 16, 2015, we announced that the proposed rule, draft environmental impact statement (DEIS), and draft regulatory impact analysis (DRIA) were available for review at

www.regulations.gov

, on our Web site (

www.osmre.gov

), and at selected OSMRE offices. On July 17, 2015, we published a notice in the

Federal Register

announcing the availability of the DEIS for the proposed rule.

See

80 FR 42535-42536. The notice reiterated that the DEIS was available for review at

www.regulations.gov

www.osmre.gov

, and the OSMRE offices listed in the notice. The comment period for the DEIS was originally scheduled to close on September 15, 2015. On July 27, 2015, we published the proposed stream protection rule in the

Federal Register

See

80 FR 44436-44698. That document reiterated that the proposed rule, DEIS, and DRIA were available for review at

www.regulations.gov

www.osmre.gov

, and the OSMRE offices listed in the notice. The comment period for the proposed rule and DRIA was originally scheduled to close on September 25, 2015. In response to requests for additional time to review and prepare comments on all three documents, we extended the comment period for the proposed rule, DEIS, and DRIA through October 26, 2015.

See

80 FR 54590-54591 (Sept. 10, 2015).

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

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

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

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

As described in Part III of this preamble, the stream protection rule has been the subject of robust public involvement, starting in 2009. During that year, we published an advance notice of proposed rulemaking,

conducted 15 stakeholder outreach meetings, held nine public scoping meetings, and provided two public comment periods totaling 76 days on scoping for the DEIS. The scoping process generated over 20,500 comments, including input from state regulatory authorities.

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

On July 16, 2015, we announced that the proposed rule, DEIS, and DRIA were available for review at

www.regulations.gov

, on our Web site (

www.osmre.gov

), and at selected OSMRE offices. On July 17, 2015, we published a notice in the

Federal Register

announcing the availability of the DEIS for the proposed rule.

See

80 FR 42535-42536. The notice reiterated that the DEIS was available for review at

www.regulations.gov

www.osmre.gov

, and the OSMRE offices listed in the notice. The comment period for the DEIS was originally scheduled to close on September 15, 2015. On July 27, 2015, we also published the proposed stream protection rule in the

Federal Register

See

80 FR 44436-44698. That document reiterated that the proposed rule, DEIS, and DRIA were available for review at

www.regulations.gov

www.osmre.gov

See

80 FR 54590-54591 (Sept. 10, 2015).

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

The proposed rule, DEIS, and DRIA included citations to references that we relied upon in developing the documents. These reference citations were available from the time of publication of the proposed rule, DEIS, and the DRIA in the

Federal Register

. We used these references in discussing both specific components of the rule and our analysis, as well as for support of our discussion on more general concepts. We did not receive any requests for copies of these references during the comment period. However, in response to language that Congress included in a report accompanying the Consolidated Appropriations Act of 2016, Public Law 114-113, we placed all publicly-available references on

www.regulations.gov

. Copyright-protected materials are easily obtainable through state or university libraries or the publisher. We were not able to provide copyright-protected items to

requesters directly because doing so might violate copyright laws. We also scheduled meetings between us and state technical personnel to discuss the scientific studies and other reference documents on two dates (April 14 and 21, 2016). The meetings were held simultaneously in Denver, Colorado; Alton, Illinois; and Pittsburgh, Pennsylvania. Staff from six state regulatory authorities participated in the meeting on April 14, 2016, and staff from five state regulatory authorities participated in the meeting on April 21, 2016.

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

while the comment period for the 1978 proposed rule containing most of the original permanent regulatory program regulations was 71 days.

72 FR 48890 (Aug. 24, 2007); 72 FR 57504 (Oct. 10, 2007).

44 FR 14902, 14908 (Mar. 13, 1979).

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

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

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

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

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

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

Federal Register

on November 16, 2016 (81 FR 80592 and 81 FR 80664), by OSMRE and the U.S. Environmental Protection Agency, respectively.

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

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

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

We disagree with these commenters. While it is true that primacy states play a key role in enforcing SMCRA, it is also true that we maintain a role in the implementation and oversight of SMCRA.

See, e.g., Hodel

Virginia Surface Mining and Reclamation Ass'n Inc.,

452 U.S. 264, 289 (1981) (“The most that can be said is that the Surface Mining Act establishes a program of cooperative federalism that allows the States,

within limits established by federal minimum standards,

to enact and administer their own regulatory programs, structured to meet their own particular needs.” (Emphasis added.) These federal standards “provide [a] blueprint against which to evaluate [a] state's program.”

The U.S. Supreme Court has held this statutory scheme to be a proper exercise of Congressional power under the U.S. Constitution.

Hodel,

452 U.S. at 290-291.

Bragg

W. Va. Coal Ass'n,

248 F.3d 275, 289 (4th Cir. 2001).

We have clear authority to issue regulations such as this rule to establish federal minimum standards. Section 102 of SMCRA sets forth thirteen purposes of the Act.

The first of these purposes is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.”

Several other purposes are related to assuring that surface coal mining operations are conducted in a manner that protects the environment.

This authority also contains a purpose unique to SMCRA: “whenever necessary, exercise the full reach of Federal constitutional powers to ensure the protection of the public interest through effective control of surface coal mining operations.”

SMCRA then vests the authority to carry out these purposes with us; specifically, under section 201(c)(2), we have clear authority to “publish and promulgate such rules and regulations as may be necessary to carry out the purposes of the Act.”

Our strong federal role, which includes updating the federal minimum standards, ensures that regulation of surface coal mining and reclamation operations remains environmentally protective and is not plagued by many of the problems that led to the enactment of SMCRA in the first place.

See, e.g.,

H.R. Rep. No. 95-218, at 90 (“For a number of predictable reasons—including insufficient funding and the tendency for State agencies to be protective of local industry—State enforcement has in the past [

i.e.,

prior to the passage of SMCRA in 1977] often fallen short of the vigor necessary to assure adequate protection of the environment.”). This rule, therefore, is a valid exercise of our authority to update the federal minimum standards to reflect 30 years of scientific development and 30 years of experience in implementing SMCRA.

30 U.S.C. 1202.

30 U.S.C. 1202(a)

See, e.g.,

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

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

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

See also, id

at 1251(b) (“[T]he Secretary shall promulgate and publish . . . regulations covering a permanent regulatory procedure for surface coal mining and reclamation operations performance standards based on and conforming to the provisions of Title V . . . .”).

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

• Final § 773.15(j): Compliance with the Endangered Species Act. Provides the permit applicant and the regulatory authority with several options for demonstrating compliance with the Endangered Species Act of 1973.

• Final § 780.16(d): Potential Enhancement Measures. The regulatory authority has the discretion to determine the type, scope, and location of fish and wildlife enhancement measures.

• Final § 780.19(a): Information on Hydrology, Geology, and Aquatic Biology, Baseline Information. The regulatory authority has the discretion to determine what constitutes “sufficient detail” with respect to the information required in this section, including the location and number of monitoring locations.

• Final § 780.19(b)(6)(ii): Groundwater Information. The regulatory authority has the discretion to determine the baseline groundwater quality and quantity sampling protocol and subsequent analyses of these data.

• Final § 780.19(c)(5): Precipitation Measurements. The regulatory authority has the flexibility to determine whether the permit applicant must prepare a hydrologic model of the proposed mine site.

• Final § 780.19(c)(6)(vii): Assessing the biological condition of intermittent and perennial streams. The regulatory authority has the flexibility to choose from available scientifically defensible protocols, including indices of biological integrity, to determine the biological condition of streams.

• Final § 780.21(b)(7): Evaluation Thresholds. The regulatory authority has the flexibility to determine the parameters it will use as evaluation thresholds.

• Final § 780.27(b)(2): What Permitting Requirements Apply to Proposed Activities in or Through Ephemeral Streams? The regulatory authority has the flexibility to approve a drainage pattern that differs from the premining pattern based upon a variety of site specific conditions.

• Final § 780.28(c)(2): Proposed Activities In, Through, or Adjacent to Perennial and Intermittent Streams. The regulatory authority has the flexibility to approve a drainage pattern or stream-channel configuration that differs from the premining pattern based upon a variety of site-specific conditions.

• Final § 780.28(e)(2): Conversion of Streams. The regulatory authority has the flexibility to approve limited stream flow regime conversions on a case-by-case basis as long as certain criteria are satisfied.

• Final § 780.28(g)(1): Standards for the Restoration of Ecological Function to Perennial or Intermittent Streams. The regulatory authority has discretion to establish objective criteria for determining the standards for restoring the ecological function of a reconstructed perennial or intermittent stream.

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

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

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

adequate justification for a nationwide rulemaking on issues related to stream protection. In particular, some commenters noted that the June 11, 2009, Memorandum of Understanding (MOU) among the U.S. Department of the Army, the U.S. Department of the Interior, and EPA implementing the interagency action plan on Appalachian surface coal mining was limited to six states in Appalachia and primarily focused on issues related to steep-slope mining. The commenters questioned our decision to propose a nationwide rule in response to the MOU, which, by its own terms, was designed to significantly reduce the harmful environmental consequences of surface coal mining operations in Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia and ensure that future mining is conducted consistent with federal law. The 2009 MOU provided impetus and support for this rulemaking, but it is not the sole reason for the rulemaking. After extensive outreach, we determined that development of a comprehensive, nationally applicable, stream protection rule would be the most appropriate and effective method of achieving the purposes and requirements of SMCRA, as well as meeting the goals set forth in the MOU. Streams are important components of the hydrologic regime everywhere that streams are found, so there is no scientific reason to limit stream protection efforts to one region of the country or to steep-slope mining. In addition, it is not clear that we have authority under SMCRA to conduct rulemaking on a regional basis. Section 101(g) of SMCRA

provides that “surface coal mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders.” The implication is that the surface coal mining and reclamation standards to which it refers must be national in scope. In addition, section 102(a) of SMCRA

provides that one of the purposes of SMCRA is to “establish a

nationwide

program to protect society and the environment from the adverse effects of surface coal mining operations.” (Emphasis added.)

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

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

Our primary purpose in adopting this final rule is to strike a better balance between “protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy,” which section 102(f) of SMCRA

lists as one of the purposes of SMCRA. Specifically, this final rule will better protect the water resources needed by current and future generations for drinking, recreation, and wildlife from the adverse effects of coal mining, while balancing protection of those resources with the Nation's energy needs.

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

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

SMCRA recognizes the importance of nationwide minimum standards for the hydrologic balance by not limiting the provisions related to the hydrologic balance to any particular types of mining or areas of the country as it did with other provisions.

Compare, e.g.,

Section 510(b)(3)

(no permit may be issued unless the operation has been “designed to prevent material damage to the hydrologic balance outside the permit area”)

with

Section 510(b)(5)

(alluvial valley floor protections apply only west of the one hundredth meridian west longitude). We have never issued regulations that expressly apply only to a portion of the country without specific statutory language authorizing or mandating adoption of regulations with a geographically-restricted scope. SMCRA provisions with a geographically-restricted scope include sections 510(b)(5) (alluvial valley floors west of the one hundredth meridian west longitude), 527

(special bituminous coal mines west of the one hundredth meridian west longitude), 529

(anthracite coal mines regulated by a state), and 708

(coal mines in Alaska, for a limited time only).

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

30 U.S.C. 1265(b)(5).

30 U.S.C. 1277.

30 U.S.C. 1279.

30 U.S.C. 1298.

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

Even if these were the only benefits of the rule, and they are not, the benefits to water resources alone are sufficient to support and justify a nationwide rulemaking.

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

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

While it is true that our annual evaluation reports routinely do not indicate problems with the states' implementation of their programs, we disagree with the conclusion the commenters attempt to draw from this information,

i.e.,

that our experience does not show that there is a problem that this rule is designed to address. OSMRE inspections and other oversight activities in primacy states, including the annual evaluation reports, focus on the success of state regulatory authorities in achieving compliance with the approved regulatory program for the state. Directive REG-8,

which establishes policy and procedures for the evaluation of state regulatory programs, specifies that the offsite impacts identified in annual evaluation reports do not include impacts from mining and reclamation that are not regulated or controlled by the state program. In other words, the annual evaluation reports generally do not identify or discuss situations in which the existing regulations provide inadequate protection. While Directive REG-8 provides discretionary authority for evaluations of impacts that are not prohibited by the regulatory program, that authority may be exercised only if both OSMRE and the state agree to do so, and if they are not characterized as

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

Directive REG-8. “Oversight of State and Tribal Regulatory Programs,” Transmittal No. 967, January 31, 2011.

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

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

Part IV.K. of this preamble summarizes the principal provisions of this rule that directly impact underground mining. The final rule does not preclude any specific method of underground mining either directly (

e.g.,

a prohibition of underground mining) or indirectly (

e.g.,

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

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

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

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

•

Updated coal market baseline:

Since the DRIA was developed conditions in the coal market have changed considerably. As a result, we updated the baseline coal production forecast for the final RIA, which resulted in an almost 20 percent decrease in the level of coal demand and production forecasted under the baseline.

•

Updated regulatory baselines.

Since the DRIA was developed, changes to the regulatory environment have occurred, including but not limited to the finalization of the Clean Power Plan and ratification of the Paris Agreement made at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change. Additional climate policy proposals have been advanced that are anticipated to have an effect on coal production nationwide. As a result, we updated the final RIA.

•

Clarified potential impacts of the rule on longwall mining:

A number of commenters misinterpreted the proposed rule's impacts on longwall mining. The commenters thought longwall mining would be impossible under the proposed rule, which would result in devastating economic impacts to the underground mining industry. The final rule clarifies that the rule does not prohibit temporary impacts to streams and other water resources as a result of longwall mining as long as those impacts do not rise to the level of material damage to the hydrologic balance outside the permit area. The final RIA continues to reflect the fact that the final rule will not prohibit longwall mining.

•

Incorporated economic impact of bonding requirements:

The DRIA did not include costs associated with bonding requirements for restoration of the ecological function of perennial and intermittent streams that are mined through. While the bonding requirements for stream restoration have been revised, the final rule is nonetheless anticipated to result in some additional costs to operators associated with this requirement that were not captured in the DRIA. These additional costs are reflected in the final RIA.

•

Revised administrative costs:

A number of commenters remarked that the administrative costs of the proposed rule to industry and state regulatory authorities appeared to be underestimated in the DRIA. Upon further review, we determined that the industry and state regulatory authority administrative costs estimated in the DRIA were not consistent with OSMRE's Paperwork Reduction Act analysis. As a result of updating the RIA to be consistent with the Paperwork Reduction Act calculations, administrative costs for industry and the state regulatory authorities have increased in the final RIA. As discussed below, we also made some changes to the final rule that reduced administrative costs to the state regulatory authorities as well as to industry.

•

Corrected width of streamside vegetative corridor:

Some commenters questioned whether the engineering analysis had correctly interpreted the width of the riparian corridor, known as the streamside vegetative corridor in the final rule, which is required to be established adjacent to perennial, intermittent, and ephemeral streams that are mined through under certain circumstances. Upon further review, we determined that the engineering analysis incorrectly assumed that a 100-foot riparian corridor was interpreted as being 50 feet on either side of a restored stream rather than 100 feet on each side. Correction of this incorrect assumption resulted in a modest increase in model mine costs.

•

Revised impacts to small businesses analysis:

The Regulatory Flexibility Act

analysis has been revised in the final RIA to reflect the recent changes to the small business size thresholds identified by the Small Business Administration for coal mining companies.

•

Incorporated the social cost of carbon:

In response to comments, the final RIA includes an estimate of the benefits related to the social costs of carbon of the final rule.

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

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

•

Applicability to existing operations:

We added a new section, 30 CFR 701.16, specifying when the stream protection rule would take effect and to which operations and permit applications it would apply. Existing permits will not be subject to the rule unless they either add acreage or revise the permit to add a new excess spoil fill, coal mine waste refuse pile, or coal mine waste slurry impoundment or move or expand the location of an approved excess spoil fill or coal mine waste facility.

•

Permit application format:

We deleted the proposed requirement in 30 CFR 777.11 that permit applicants submit their applications in electronic form. Regulatory authorities and mining companies expressed concern about the expense. Furthermore, we cannot guarantee the availability of grant funds to cover installation of electronic permitting systems by states. However, transition to electronic permitting systems ultimately will result in cost savings and greater efficiencies.

•

Baseline data and monitoring:

First, we are not adopting the proposed requirement in 30 CFR 780.19(b) and (c) that the regulatory authority extend the baseline data collection period if the Palmer Drought Severity Index for that period exceeded certain values. The regulatory authority has the discretion to determine whether and how long to extend the baseline data collection period under conditions of extreme drought or abnormally high precipitation. Second, under 30 CFR 780.19(b) and (c), the regulatory authority may modify the interval or the 12-consecutive-month sampling requirement for groundwater and surface water if adverse weather conditions make travel to the sampling location hazardous or if the water at that location is completely frozen. Third, in 30 CFR 780.19, we deleted six baseline data parameters (ammonia, arsenic, cadmium, copper, nitrogen, and zinc) upon which coal mining typically has little impact. Fourth, we added 30 CFR 783.26 and 784.40, which provide that the regulatory authority may allow permittees to submit baseline data and development of water monitoring plans for areas overlying proposed underground mine workings in increments. This will ensure more up-to-date information and avoid unnecessarily high data collection and analysis costs at the time of the initial permit application. It also will reduce monitoring costs.

•

Mining in or near Streams and Excess Spoil:

First, we revised the definitions of ephemeral, intermittent, and perennial streams in 30 CFR 701.5 to clarify that only conveyances with channels that have both a bed-and-bank configuration and an ordinary high water mark will be classified as streams. Second, final 30 CFR 780.19(c)(3) and 780.20(a)(5)(iv) do not include the proposed requirements for baseline data and analysis of peak flow magnitude and frequency, actual and anticipated usage, and seasonal flow variations for ephemeral streams. Third, final 30 CFR 780.19(c)(6) does not include the proposed requirement to assess the biological condition of ephemeral streams within the proposed permit and adjacent areas. It also modifies the proposed requirement to assess the biological condition of intermittent streams within the proposed permit and adjacent areas. In the final rule, assessment of the biological condition of intermittent streams within the proposed area and the adjacent area is required if a scientifically defensible protocol has been established for assessment of intermittent streams in the state or region in which the stream is located. But, if a scientifically defensible bioassessment protocol has not been developed in the relevant state or region, a description of the biology of each intermittent stream would be required to determine the biological condition of the intermittent stream. Fourth, final 30 CFR 780.28(g) specifies the best technology currently available for assessment of the restoration of the ecological function of intermittent streams for which no scientifically defensible protocol exists consists of the establishment of standards that rely upon restoration of the form, hydrologic function, and water quality of the stream and reestablishment of streamside vegetation as a surrogate for the biological condition of the stream. Finally, the excess spoil fill construction requirements in final 30 CFR 816.71(k) require only one certified report per calendar quarter and to provide an alternative to daily examinations by an engineer or other specialist.

•

Soils and Revegetation:

First, the final rule does not include a provision in proposed 30 CFR 779.19(a) that would have required descriptions of vegetative communities in the adjacent area. In addition, the final rule does not include the requirement in proposed 30 CFR 816.116(b) that revegetation success standards demonstrate restoration of the capability of the land to support all uses that it was capable of supporting before mining.

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

Section 816.42 in our previous regulations required that discharges of water from areas disturbed by surface mining activities be made in compliance with all applicable state and federal water quality laws and regulations and with the effluent limitations for coal mining operations set forth in 40 CFR part 434. Proposed § 816.42 contained five paragraphs. Proposed paragraph (a) incorporated previous § 816.42 and clarified that permittees must comply with all water quality laws, including effluent limitations in the applicable NPDES permit. Proposed paragraph (b) explicitly incorporated the longstanding requirement for permittees to comply with section 404 of the Clean Water Act

if they sought to discharge overburden (including excess spoil), coal mine waste, and other materials into waters of the United States. Proposed paragraphs (c) through (e) established enforceable performance standards requiring proper operation and maintenance of water treatment facilities and environmentally appropriate disposition of precipitates from those facilities.

33 U.S.C. 1344.

In the preamble to the proposed rule, we requested comment on whether proposed § 816.42(b) should be informational or directly enforceable under SMCRA.

As mentioned, this paragraph required that discharges of overburden (including excess spoil), coal mine waste, and other materials into waters of the United States be made in compliance with section 404 of the Clean Water Act and its implementing

regulations. Commenters were divided on the merits of this issue. Several environmental groups and citizens asked us to make standards under both sections 402 and 404 of the Clean Water Act directly enforceable under SMCRA. These commenters typically suggested changes to proposed § 816.42 to clarify that water quality standards established under the Clean Water Act are directly enforceable under SMCRA. According to these commenters, section 702(a) of SMCRA

and prior preamble statements concerning § 816.42 provide authority for direct enforcement of water quality standards under SMCRA. Similarly, these commenters asked us to clarify whether proposed § 816.71(a)(7) (excess spoil) and 816.57(b) (mining in, through, or adjacent to perennial and intermittent streams) require operators to comply with water quality standards and, if so, whether the SMCRA regulatory authorities will directly enforce these water quality standards. Some commenters asked us to provide for direct enforcement of Clean Water Act water quality standards through citizen suits under section 520 of SMCRA.

80 FR 44549 (Jul. 27, 2015).

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

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

In developing the approach we adopted in the final rule about the direct enforcement of Clean Water Act provisions under SMCRA, we considered the applicable requirements of SMCRA in light of an overarching purpose of SMCRA: To protect society and the environment from the adverse effects of coal mining operations.

Section 510(b)(3) of SMCRA specifically provides that coal mining operations must be designed to prevent material damage to the hydrologic balance outside the permit area.

Likewise, section 508(a)(9) of SMCRA provides that a permit application must include “the steps to be taken to comply with applicable air and water quality laws and regulations[,]”

and section 702(a) of SMCRA provides that nothing in SMCRA “shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act or any rule or regulation promulgated under the Clean Water Act.

Thus, while we cannot supersede the Clean Water Act, under SMCRA, regulatory authorities do have a duty to ensure that surface coal mining operations are permitted, operated, maintained, and reclaimed in a manner that complies with the Clean Water Act, which includes, but is not limited to, compliance with NPDES permits and water quality standards.

See, e.g.,

30 U.S.C. 1201(d); 1201(j), 1202(a), 1202(c), 1202(d), 1202(f), and 1202(m).

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

30 U.S.C. 1258(a)(9).

30 U.S.C. 1292(a)(3).

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

With regard to enforcement under SMCRA, final rule § 816.42(b)(1) retains our longstanding regulatory requirement that coal mining operations must comply with all applicable water quality laws and regulations, including the effluent limitations set by Clean Water Act authorities in NPDES permits under section 402 of the Clean Water Act.

Since our final rulemaking in 1982 was promulgated to be consistent with effluent limits established by the U.S. Environmental Protection Agency, our regulations have required that discharges from coal mining operations be in accordance with a valid NDPES permit and that this is a performance standard directly enforceable under SMCRA.

This approach has been upheld by the Interior Board of Land Appeals and has been expressly incorporated by several regulatory authorities.

Direct enforcement of the NPDES effluent limitations typically begins with an inspector for the SMCRA regulatory authority conducting a routine inspection.

During these inspections, water samples are taken from sediment pond discharges to verify compliance with the SMCRA permits, which incorporates the NDPES effluent limitations by reference. When violations of those standards are found, a SMCRA notice of violation is issued requiring the violation to be corrected.

33 U.S.C. 1342.

47 FR 47220 (Oct. 22, 1982).

West Virginia Highlands Conservancy

et al.,152 IBLA 196 (2000);

see also,

Ohio Division of Reclamation Policy/Procedure Directive 95-2; June 1, 1995.

Active mining operations require complete inspections quarterly and partial inspections monthly.

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

With regard to enforcement of water quality standards, § 816.42(b)(2) was also added to make it clear that coal mining operations cannot cause or contribute to a violation of any applicable water quality standards. In addition, in response to comments, we

have added language similar to that contained in § 816.42(b)(2) to final § 816.57(a)(2) to clarify that activities in, near, or through streams may not cause or contribute to a violation of applicable water quality standards. Similarly, in response to comments, we adopted a provision in final § 816.71(a)(7) which provides that the permittee or operator must place excess spoil in a manner that will ensure that the fill will not cause or contribute to a violation of applicable water quality standards adopted under the authority of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), for surface water downstream of the toe of the fill.

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

33 U.S.C. 1344.

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

it may be necessary for the SMCRA regulatory authority to act, at least initially, independently of the Clean Water Act authority. In such a situation, after coordination with the Clean Water Act authority additional enforcement action may be necessary by the SMCRA regulatory authority, the Clean Water Act authority, or both. This process of coordination more fully satisfies the mandates of section 702(a) of SMCRA.

30 U.S.C. 1271(a)(2).

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

Some commenters also requested that we explicitly allow citizens to enforce water quality standards through citizen suits. In our proposed rule, we did not propose any changes or ask for comment on the enforcement of water quality standards through SMCRA citizen suits. Nothing in the proposed or final rule was intended to alter or inhibit the ability to initiate citizen suits under SMCRA,

the Clean Water Act,

or the Endangered Species Act.

Moreover, we consider any questions about the extent of enforcement under the citizen suit provision of SMCRA to be beyond the scope of this rule.

30 U.S.C. 1271.

33 U.S.C.1365.

16 U.S.C.1531.

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

The proposed rule contained numerous regulations that refer to “existing uses” in the context of uses of groundwater and surface water. With respect to surface water, the regulations at 40 CFR 131.3(e) implementing the Clean Water Act defines “existing uses” as “those uses actually attained in a waterbody on or after November 28, 1975, whether or not they are included in the water quality standards.” We did not propose to define “existing uses” in the proposed rule, but we stated in the preamble that we interpret the term “existing uses” as meaning those uses in existence at the time of preparation of the permit application, regardless of whether those uses are designated uses under section 303(c) of the Clean Water Act.

See

80 FR 44475 (Jul. 27, 2015). We also stated in the preamble that, alternatively, we might replace the term “existing uses” with “premining uses” for purposes of clarity.

Id.

We invited comment on which course of action we should take.

33 U.S.C. 1313(c).

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

Our rule implements SMCRA, not the Clean Water Act, so we are under no obligation to adopt the same definition of “existing uses” that has been adopted under the Clean Water Act, especially when our definition pertains to a term (material damage to the hydrologic balance outside the permit area) that does not appear in the Clean Water Act. We also have not discovered any support for the commenter's assertion that Congress intended that we look back to the baseline conditions on the date of enactment of SMCRA (August 3, 1977) to determine whether an operation is preventing material damage to the hydrologic balance outside the permit area. In addition to the practical difficulty of determining the baseline condition of water bodies on a date almost four decades ago, there is no statutory support for viewing the date that SMCRA was enacted as the baseline for determining whether an operation will prevent material damage to the hydrologic balance outside the permit area. To the contrary, SMCRA indicates that such a finding should be made at the time of permit application. For instance, section 510(b)(3) of SMCRA

provides that the regulatory authority

may not approve any application for a

permit or permit revision

unless the regulatory authority finds that

the proposed operation

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

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

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

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

Several commenters asserted that the proposed rule was inconsistent with SMCRA and would conflict with or duplicate the requirements of other federal laws—primarily the Clean Water Act. As support, many of these commenters cited Section 702 of SMCRA, which provides that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing . . . any of the following Acts or with any rule or regulation promulgated thereunder, including, but not limited to . . . [t]he Federal Water Pollution Control Act, as amended, the State laws enacted pursuant thereto, or other Federal laws relating to the preservation of water quality.”

They also cited

In re Surface Mining Regulation Litigation,

627 F.2d 1346 (D.C. Cir. 1980) where the court held that we exceeded our authority by issuing effluent limitations more stringent than those issued by EPA under the Clean Water Act.

Id.

at 1366-1367.

30 U.S.C. 1292(a)(3).

These commenters typically failed to appreciate the significance of the court's further holding in that case: “where the [Clean Water Act] and its underlying regulatory scheme are silent so as to constitute an `absence of regulation' or a `regulatory gap',

the Secretary may issue effluent regulations without regard to EPA practice so long as he is authorized to do so under the Surface Mining Act.” Id.

at 1367 (emphasis added). Thus, the court expressly held that we, under the authority of SMCRA, could issue regulations to address the hydrologic impacts of coal mining operations that are not adequately addressed under the Clean Water Act. In this final rule, consistent with this ruling, we are using our SMCRA authority to fill many of the very regulatory gaps that the Court mentioned in

In re Surface Mining Regulation Litigation. See, e.g., id.

(gaps in the Clean Water Act include, but are not limited to, “discharges from abandoned and underground mines or from nonpoint sources” and the ability “to establish standards “requiring comprehensive preplanning and designing for appropriate mine operating and reclamation procedures `to ensure protection of public health and safety and to prevent the variety of other damages to the land, the soil, the wildlife, and the aesthetic and recreational values that can result from coal mining.' ”).

Several commenters argued that this rule was not, in fact, filling regulatory gaps, but instead was creating a regime that would be inconsistent with the Clean Water Act and associated water quality laws and would improperly require SMCRA regulatory authorities to set water quality standards and enforce the Clean Water Act. We disagree. The Clean Water Act is designed to cover many industries and activities. SMCRA, by contrast, is designed to regulate the environmental impacts of one specific industry. This distinction is significant because the later-enacted statute, SMCRA, unlike the Clean Water Act, provides for the regulation of the environmental impacts, including the hydrologic impacts, of all phases of mining operations—design, operation, and reclamation. Absent SMCRA, coal mining operations that impact waters outside the permit area would be subject only to the limited regulation authorized by the Clean Water Act. By including requirements in SMCRA to regulate the effects of coal mining on water and hydrologic balance,

Congress clearly indicated that it intended to go beyond the protections it had afforded in the Clean Water Act. In SMCRA, Congress required the development of focused design requirements and performance standards for surface coal mining operations, including numerous standards related to water and the hydrologic balance. Thus, as long as these SMCRA standards do not conflict with the Clean Water Act, regulation under SMCRA will complement the Clean Water Act standards and requirements, which means that the final rule legitimately fits within the confines of what Congress intended.

See, e.g.,

30 U.S.C. 1201(c), 1260(b)(3), 1265(b)(2), 1265(b)(10), 1265(b)(24), 1266(b)(4), 1266(b)(9), 1266(b)(11), 1266(b)(12), 1266(c).

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

See, e.g.,

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

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

One commenter asserted that designated uses under the Clean Water Act are “aspirational and cannot be met due to ambient values or nonpoint sources” and requested that we better explain what should occur in such situations. Another commenter raised similar concerns about how this proposed rule would account for the “flexible and adaptive implementation” of Clean Water Act standards. This commenter cited use attainability analysis, variances, and compliance

schedules and deadlines as examples of the flexible implementation inherent in Clean Water Act implementation. To the extent that the Clean Water Act provides flexibility, this final rule does not supersede, amend, modify, repeal, or otherwise conflict with the Clean Water Act. In addition, contrary to comments made by other commenters, SMCRA allows for some environmental impacts caused by mining; however, these are not without limitation. For example, section 515(b)(10) of SMCRA

requires that surface coal mining and reclamation operations minimize disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and groundwater systems, which means that some damage is permissible. However, section 510(b)(3) of SMCRA

effectively prohibits approval of a permit application unless the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

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

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

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

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

are resolved and the regulatory authority has received written documentation from the FWS that all such issues have been resolved.

16 U.S.C. 1531

et seq.

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

Nothing in SMCRA supersedes the Endangered Species Act or exempts surface coal mining operations from compliance with applicable provisions of that law and the implementing regulations. Sections 7(a)(1), (2) and (4) of the Endangered Species Act of 1973 provide authority for adoption of the regulations referenced above, which are intended to ensure that surface coal mining and reclamation operations conducted under approved state and federal SMCRA regulatory programs avoid violations of the Endangered Species Act. Section 7(a)(1) of the Endangered Species Act

directs federal agencies to use their authorities to further the purposes of the Endangered Species Act. Section 7(a)(2) of the Endangered Species Act

requires all federal agencies, in consultation with FWS or the National Marine and Fisheries Service,

to ensure that their actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. Section 7(a)(4) of the Endangered Species Act

requires federal agencies to confer with the FWS on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed. Other sources of authority for this rule are sections 515(b)(24), 515(b)(10), 515(b)(17), and 201(c)(2) of SMCRA.

16 U.S.C. 1536(a)(1).

16 U.S.C. 1536(a)(2).

The Secretaries of the Department of the Interior and Commerce (Secretaries) have the responsibility for administering the Endangered Species Act, and have delegated this responsibility to the FWS and National Marine Fisheries Service (NMFS), respectively. 16 U.S.C. 1533. The FWS manages and administers most ESA-listed species except marine species, including some marine mammals, and anadromous fish, which are the responsibility of NMFS.

Id.

We determined that this rulemaking will not impact any of the species under the jurisdiction of the NMFS. However, we included the NMFS in all sections of our rule relating to the Endangered Species Act to insure that, in the unlikely circumstance that a coal mining operation may impact an ESA-listed species or its habitat under the jurisdiction of NMFS, the applicant and regulatory authority coordinate with the appropriate NMFS office.

16 U.S.C. 1536(a)(4).

30 U.S.C. 1265(b)(24), 1265(b)(10), 1265(b)(17), and 1211, respectively.

Section 4 of the Endangered Species Act directs the Secretary of the Interior, through the FWS, to list threatened or endangered species of fish and wildlife or plants and to designate critical habitat for those species.

The Endangered Species Act prohibits the unauthorized “take” of listed species,

a prohibition that applies to all persons and entities, including coal mine permittees and state regulatory authorities.

16 U.S.C. 1533.

16 U.S.C. 1538(a).

16 U.S.C. 1532(13).

The Endangered Species Act provides several routes by which applicants may demonstrate compliance. An applicant may demonstrate that the proposed actions would have no effect on listed species. If the proposed action may affect a listed species or destroy or cause adverse modifications to designated critical habitat, the applicant must consult with the FWS under section 7

of the Endangered Species Act for federal permits or for mining plan approvals involving leased federal coal. Alternatively, the applicant may utilize the procedures of section 10

of the Endangered Species Act for state permits on non-federal lands. Some applicants have obtained incidental take coverage by complying with the terms of a biological opinion that establishes a process for obtaining incidental take coverage that is significantly less time-consuming and less resource-intensive than the individual section 7 or section 10 processes. An applicant seeking to obtain incidental take coverage under a biological opinion, must comply with all the procedures, terms, and conditions of the biological opinion. We do not, however, require an applicant to use a biological opinion to obtain coverage. A biological opinion merely provides one avenue by which an applicant may obtain the coverage it needs against civil or criminal liability

for unauthorized take of threatened or endangered species in violation of the Endangered Species Act.

16 U.S.C. 1536.

16 U.S.C. 1539.

16 U.S.C. 1540.

Paragraphs (j)(1) through (4) of final § 773.15 list four pathways by which the applicant and the regulatory authority may document compliance with the Endangered Species Act for surface coal mining and reclamation operations conducted under a SMCRA regulatory program. Paragraph (j)(1) applies when the applicant can document that the proposed surface coal mining and reclamation operations would have no effect on species listed or proposed for listing as threatened or endangered or on designated or proposed critical habitat. The joint U.S. Fish and Wildlife Service and National Marine Fisheries Service “Final Endangered Species Act Section 7 Consultation Handbook” (March 1998) states that the term “effect” means any impact, regardless of the severity or whether the impact is positive or negative.

Further, the implementing Endangered Species Act regulations found at 50 CFR 402.02, define “effects of the action” in relevant part as “the direct and indirect effects of an action on the species or critical

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

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

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

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

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

Section 701.5 contains definitions of both “material damage” and “material damage to the hydrologic balance outside the permit area.” Many commenters asked that we make revisions to better distinguish between the definitions and clarify how they apply to underground mining operations. These commenters correctly note that section 510(b)(3) of SMCRA requires mine operators to prevent “material damage to the hydrologic balance outside the permit area” but section 516(b)(1) of SMCRA requires prevention of “material damage” caused by subsidence from underground operations to the extent technologically and economically feasible.

As specified in its definition, the term “material damage” applies only to our subsidence control provisions at §§ 784.30 and 817.121, which are applicable to underground mining operations.

30 U.S.C. 1266(b)(1).

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

Numerous commenters expressed concern about the potential implications of applying the term “material damage to the hydrologic balance outside the permit area” to underground mining activities and subsidence. These commenters objected to application of the definition of “material damage to the hydrologic balance outside the permit area” to areas overlying the underground workings, which are part of the “adjacent area” as defined in § 701.5. They indicated that subsidence can cause a range of different impacts on water quantity and quality, including loss of flow through surface fracturing of the stream bed, loss of recharge due to a drop in the groundwater table below the stream bed elevation, loss of water supply sources like springs and seeps, and increased pollutant loadings;

e.g.,

iron, aluminum, and sulfate, caused by fracturing of the overburden. They noted that these types of hydrologic impacts are often temporary. According to the commenters, if the rule categorically required the prevention of temporary and permanent hydrologic impacts, some types of underground mining, such as longwall mining or other methods using planned subsidence, could not occur because those hydrologic impacts cannot be completely prevented.

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

As noted previously, section 510(b)(3) of SMCRA

requires mine operators to prevent “material damage to the hydrologic balance outside the permit area” but section 516(b)(1) of SMCRA

requires prevention of “material damage” caused by subsidence from underground operations to the extent technologically and economically feasible. In keeping with these different and distinct provisions of SMCRA we clarified that not all of the impacts that the commenters described would necessarily rise to the level of material damage to the hydrologic balance outside the permit area. The regulatory authority is required to make a determination whether a permittee's proposed operation is designed to prevent material damage to the hydrologic balance outside the permit area. If the regulatory authority determines that it does cause material damage to the hydrologic balance outside the permit area, a permit will not be issued. Such a situation would occur whenever an adverse impact from subsidence permanently diminishes flow (

i.e.,

dewaters) of an intermittent or perennial stream to the extent that applicable water quality standards would not be met, or if no water quality standard has been established, the premining use would not be attained. However, a regulatory authority may determine that proposed subsidence-related material damage to surface water or groundwater can and will be repaired so that it still meets applicable water quality standards, or, if no water quality standard exists or is applicable, it still attains its premining use. Diminished flow within a short section of a stream segment over a longwall panel that recovers within a brief period of time or is repairable may have no discernible impact on attainment of water quality

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

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

30 U.S.C. 1266(b)(1).

We have clarified and revised language in the final rule to ensure that longwall mining and other underground mining methods that use planned subsidence would not be prohibited, and that temporary impacts are allowed so long as they do not rise to the level of material damage to the hydrologic impacts outside of the permit area. SMCRA is clear that the regulatory authority may not approve any permit application for a surface coal mining operation, including one that involves underground mining activities, unless the application affirmatively demonstrates, consistent with final rule § 773.15, and the regulatory authority finds, in writing, that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

Any material damage to the hydrologic balance outside the permit area is unacceptable, including damage from subsidence, even if it is temporary. As mentioned above, such a situation could occur, for example, when subsidence causes a stream to dewater to the point that the stream can no longer support its water quality standard, or if no water quality standard exists, its premining use. If it is determined that a proposed operation would have this result, the operational plan would need to be modified to prevent subsidence of the stream. That modification could include the use of underground mining technology that prevents subsidence, such as room-and-pillar mining, for that portion of the operation. In order to clarify the obligation of the permittee to prevent material damage to the hydrologic balance outside the permit area, while recognizing that temporary subsidence-related material damage is almost certain to occur at planned subsidence operations, we have added new language to § 817.34(a)(2). This new language makes it clear that while underground operations must prevent material damage to the hydrologic balance outside the permit area, temporary subsidence related material damage that can be repaired or recover naturally may be allowed under § 817.121(c). As noted previously, however, given the different requirements of section 510(b)(3) and section 516(b)(1) of SMCRA,

the obligation to prevent material damage to the hydrologic balance outside the permit area, as required at section 510(b)(3) of SMCRA is not subject to the provision at section 516(b)(1) of SMCRA which requires prevention of material damage from subsidence to the extent technologically and economically feasible. An operator will not be granted an exemption from complying with material damage to the hydrologic balance outside the permit area based upon technological and economic feasibility where subsidence damage will result in material damage to the hydrologic balance outside the permit.

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

30 U.S.C. 1260(b)(3) and 1266(b)(1).

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

The definition of “material damage” in § 701.5 of the final rule applies only in the context of the subsidence control provisions of §§ 784.30 and 817.121. Among other things, the definition as adopted in this final rule specifies that material damage includes “[a]ny functional impairment of surface lands, features (including wetlands, streams, and bodies of water), structures, or facilities.” Under § 784.30(c), mining may still occur when those features exist or may be materially damaged, provided that the applicant submits a subsidence control plan and the regulatory authority approves that plan. Among other requirements, the subsidence control plan must describe the anticipated effects of planned subsidence on wetlands, streams, and water bodies and the measures to be taken to mitigate or remedy any subsidence-related material damage to those features.

In addition, pursuant to § 817.121(c) and (g), the underground mine operator must repair damage to surface land and waters, including wetlands, streams, and water bodies, to a condition capable of maintaining the value and reasonably foreseeable uses that the land was capable of supporting before subsidence damage occurred unless the regulatory authority determines that restoration is not technologically or economically feasible. If those repairs will not be implemented within 90 days, the permittee must bond the area as discussed in the preamble to final § 817.121(g)(3)(i).

784.30(c)(2)(vi) and (c)(2)(viii).

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

we stated:

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

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

60 FR 16722 (Mar. 31, 1995).

Nothing in this final rule alters the meaning of the term “functional impairment” in the context of subsidence-related material damage. In addition, the preamble to the 1995 rules states that “[t]he definition of `material damage' covers damage to the surface and to surface features, such as wetlands, streams, and bodies of water, and to structures or facilities.”

Consistent with that preamble description, the addition of the phrase “wetlands, streams, and water bodies” to our material damage definition should help clarify the applicability of the definition to hydrologic features in the subsidence context and ensure those damages are corrected in accordance with § 817.121.

Id.

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

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

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

A commenter suggested that we provide guidance on the location of the point of compliance for determining material damage to the hydrologic balance. Section 510(b)(3) of SMCRA

prohibits the approval of a permit application unless the application demonstrates and the regulatory authority finds in writing that the proposed operation has been designed to prevent material damage to hydrologic balance outside the permit area. Our existing definition of “permit area” in § 701.5 of our regulations provides that the permit area means “the area of land, indicated on the approved map submitted by the operator with his or her application, required to be covered by the operator's performance bond under subchapter J of this chapter and which shall include the area of land upon which the operator proposes to conduct surface coal mining and reclamation operations under the permit, including all disturbed areas; provided that areas adequately bonded under another valid permit may be excluded from the permit area.”

Our existing regulations in § 701.5 define “disturbed area” to mean “an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations.”

When the definition of “material damage to the hydrologic balance outside the permit area” that we are finalizing today is read in conjunction with the existing definitions of “permit area” and “disturbed area,” it is clear that the point of compliance for preventing material damage to the hydrologic balance outside the permit area is any point outside those areas of the permit boundary as indicated on the approved permit application map. The area inside the permit boundary where overburden is removed or where other mining activities occur that are required to be bonded for reclamation comprise the limits of the disturbed area. Any discharge, including those inside the permit area, must be in compliance with applicable Clean Water Act provisions as provided in § 816.42 of our final regulations; in addition, such discharges must not be comprised of toxic mine drainage and cannot result in material damage to the hydrologic balance outside the permit area.

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

30 CFR 701.5.

Id.

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

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

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

Material Damage Thresholds

Section 510(b)(3) of SMCRA

provides that the regulatory authority may not approve a permit application unless the application affirmatively demonstrates and the regulatory authority finds in writing that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. The regulatory authority must base this finding on an “assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance.” Our rules refer to that assessment as the cumulative hydrologic impact assessment (CHIA).

See, e.g.,

30 CFR 780.21. Our rules also designate the area for which the CHIA is prepared as the “cumulative impact area,” which section 701.5 of this final rule defines generally as any area within which impacts resulting from a surface or underground coal mining operation may interact with the impacts of all existing and anticipated surface and underground coal mining on surface-water and groundwater systems, including the impacts that existing and anticipated mining will have during mining and reclamation until final bond release.

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

The regulatory authority prepares the CHIA after technical review of the permit application is complete, using both the information in the application and other available data about the cumulative impact area. The application components most critical to preparation of the CHIA are the baseline data on surface water and groundwater; the “determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site,” required by section 507(b)(11) of SMCRA;

which we generally refer to as the PHC determination, and the hydrologic reclamation plan required by section 508(a)(13) of SMCRA.

Section 780.20 of this final rule includes requirements for the PHC determination, while § 780.22 contains requirements for the hydrologic reclamation plan.

30 U.S.C. 1257(b)(11).

30 U.S.C. 1258(a)(13).

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

of the permit. These material damage thresholds will become the basis for the regulatory authority to objectively determine if a mining operation has prevented material damage to the hydrologic balance outside the permit area.

In developing thresholds to define when material damage to the hydrologic balance outside the permit area would occur in connection with a particular permit, final § 780.21(b)(6)(i) specifies that the regulatory authority will, in consultation with the Clean Water Act authority, as appropriate, undertake a comprehensive evaluation that considers the baseline data collected under § 780.19 of the final rule, the probable hydrologic consequences determination prepared under § 780.20 of the final rule, applicable water quality standards adopted under the authority of section 303(c) of the Clean Water Act,

applicable state or tribal standards for surface water or groundwater, ambient water quality criteria developed under section 304(a) of the Clean Water Act,

the biological requirements of any species listed as threatened or endangered under the Endangered Species Act of 1973,

and other pertinent information and considerations to identify the parameters for which thresholds are necessary and what numeric or narrative thresholds to use. Final § 780.21(b)(6)(ii) specifies that the regulatory authority must, after consulting with the Clean Water Act authority, use numeric material damage thresholds when possible for contaminants that have water quality criteria set by the Clean Water Act.

For contaminants, that do not have water quality criteria set, the material damage thresholds can be either numeric or narrative.

33 U.S.C. 1313(c).

33 U.S.C. 1314(a).

16 U.S.C. 1531

et seq.

33 U.S.C. 1251

et seq.

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

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

Evaluation Thresholds

In the preamble to the proposed rule,

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

80 FR 44436, 44502 (Jul. 27, 2015).

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

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

An exceedance of an evaluation threshold is not itself a violation under SMCRA or the SMCRA permit because evaluation thresholds are not incorporated as a condition of the permit and do not constitute enforceable standards. Moreover, exceedances of evaluation thresholds may not necessarily be the result of the mining operation. For that reason, an exceedance of an evaluation threshold only triggers a requirement under final § 780.21(b)(7) that the regulatory authority determine the cause of the exceedance in consultation with the Clean Water Act authority, as appropriate. If the mining operation is

responsible for the exceedance and if the adverse trend is likely to continue in the absence of corrective action, final § 780.21(b)(7) provides that the regulatory authority must issue a permit revision order under § 774.10. The order must require that the permittee reassess the adequacy of the PHC determination prepared under § 780.20 and the hydrologic reclamation plan approved under § 780.22 and develop measures to prevent material damage to the hydrologic balance outside the permit area. Section 780.21(c)(1) of the final rule provides that, upon receipt of an application for a significant permit revision, the regulatory authority must determine whether there is a need for a new or updated CHIA.

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

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

Monitoring

Final rule § 780.23(a) and (b) require that each permit application include plans to monitor both surface water and groundwater. Those paragraphs also provide that the plans must be adequate to evaluate the impacts of the mining operation on surface water and groundwater in the proposed permit and adjacent areas and to determine in a timely manner whether corrective action is needed to prevent the operation from causing material damage to the hydrologic balance outside the permit area. Among other things, the final rule requires that the plans include monitoring points at the locations specified in the CHIA prepared by the regulatory authority under § 780.21(b)(6)(iv) of the final rule.

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

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

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

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

• Minimized disturbance to the hydrologic balance in the permit and adjacent areas;

• Prevented material damage to the hydrologic balance outside the permit area;

• Preserved or restored the biological condition of perennial and intermittent streams within the permit and adjacent areas for which baseline biological condition data was collected under § 780.19(c)(6)(vi) when groundwater from the permit area provides all or part of the base flow of those streams;

• Maintained or restored the availability and quality of groundwater to the extent necessary to support the approved postmining land uses within the permit area; and

• Protected or replaced the water rights of other users.

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

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

Paragraph (c) of final section 780.23 further requires that the permit application include a plan for monitoring the biological condition of each perennial and intermittent stream within the proposed permit and adjacent areas for which baseline biological condition data was collected under § 780.19(c)(6)(vi). The plan must be adequate to evaluate the impacts of the mining operation on the biological condition of those streams and to determine in a timely manner whether corrective action is needed to prevent the operation from causing material damage to the hydrologic balance outside the permit area.

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

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

TMDLs can be calculated to implement a narrative stream condition or to focus on a specific parameter.

Once the TMDL is calculated, each new individual point-source discharge is assigned a waste load allocation based on its estimated discharge flow rate and parameter concentration. The Clean Water Act authority may adjust effluent limitations in existing NPDES permits to reflect the waste load allocation for each parameter under consideration in the TMDL. When the waste load allocations are implemented as concentration-based limits in NPDES permits, the limits are derived from the calculated waste load allocation for the outfall and an assumed flow rate. This concentration limit is expressed in concentration units applicable to each specific parameter and is normally given as a mass/volume (

e.g.,

mg/L). Waste load allocations are often implemented in NPDES permits as mass-based limits and expressed as pounds per day.

For example, if the Clean Water Act authority determined that a stream was impaired because of excess sediment, it would calculate the sediment load the stream could assimilate from all point and non-point sources while maintaining its designated use. That TMDL for sediment would be expressed numerically (

e.g.,

1000 pounds of suspended sediment per day). The Clean Water Act authority would then allocate a portion of that TMDL amount among all known and reasonably foreseeable NPDES permits and non-point sources that do not have an NPDES permit.

Both the applicant and the regulatory authority need to carefully consider the impact of a proposed operation on the impaired hydrologic conditions in a watershed with a 303(d)-listed water. Under section 510(b)(3) of SMCRA and § 773.15(e) of this final rule, the SMCRA regulatory authority may not approve a permit application unless the applicant demonstrates, and the regulatory authority finds, that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Before making this finding, the SMCRA regulatory authority must prepare a cumulative hydrologic impact analysis (CHIA) that identifies and analyzes the cumulative impacts of all anticipated mining, including the proposed operation, on the hydrologic balance in the cumulative impact area, including impacts on the water quality and biology of the receiving stream.

See

final paragraphs (a) and (b) of § 780.21. Both the definition of “material damage to the hydrologic balance outside the permit area” in § 701.5 of this final rule and the CHIA regulations that we are adopting in § 780.21(b)(6) of this final rule provide that the regulatory authority must consult with the Clean Water Act authority, as appropriate, in determining whether the proposed operation would cause material damage to the hydrologic balance outside the permit area.

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

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

waters.

The studies and the report generally do not differentiate among perennial, intermittent, and ephemeral streams, but the report emphasizes that ephemeral streams are an important component of headwater streams and that they have an effect on the form and function of downstream channels and aquatic life. The report states that the evidence unequivocally demonstrates that the stream channels, riparian wetlands, floodplain wetlands, and open waters that together form river networks are clearly connected to downstream waters in ways that profoundly influence downstream water integrity.

According to the report, the body of literature documenting connectivity and downstream effects is most abundant for perennial and intermittent streams and for riparian and floodplain wetlands.

The report further states that, although less abundant, the evidence for connectivity and downstream effects of ephemeral streams is strong and compelling, particularly in context with the large body of evidence supporting the physical connectivity and cumulative effects of channelized flows that form and maintain stream networks.

U.S. Environmental Protection Agency.

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

U.S. Environmental Protection Agency, Washington, DC. EPA/600/R-14/47F, 2015. Available at

https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414&CFID=62302143&CFTOKEN=44785139

(last accessed October 26, 2016).

Id.

at ES-7.

Id.

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

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

Id.

at ES-8.

Id.

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

See

80 FR 44451 (Jul. 27, 2015).

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

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

• The U.S. Army Corps of Engineers, an agency with considerable expertise on the subject of streams, rarely requires returning all ephemeral features to the postmining landscape.

• Some ephemeral streams are the result of anthropogenic activities and may be undesirable.

• Many ephemeral streams will find their own way back onto the landscape, depending on many factors including the final configuration of the reclamation. Restoring these lesser drainages is a waste of effort when nature will do it better.

• Disallowing the placement of sediment ponds in ephemeral drainages would result in logistically difficult or impossible situations or at least a greatly increased disturbance from additional ditching and a larger number of ponds.

• It makes no sense and is counterproductive to reconstruct erosional features when reclamation provides the opportunity to reshape the landscape to reduce erosion.

• Ephemeral streams have minimal if any biological components.

• In Wyoming's Powder River Basin, extending protection to ephemeral streams could result in 2,800 tons of coal per foot of channel being left unmined. This equates to 15 million tons of coal sterilized for every mile of channel that could not be mined. Surface coal mines in Wyoming can have upwards of 100 miles of ephemeral channels within the permit boundary. If all of the channels were to become unmineable, approximately 1.5 billion tons of coal for each mine would be sterilized.

• Typical mining techniques in the Powder River Basin utilize draglines and truck shovels. Efficient dragline operations require long linear pits. If ephemeral streams become unmineable, these types of operations will no longer be economic or efficient because of the number of ephemeral channels that bisect these pits.

• The Bureau of Land Management requires that a bonus bid be paid at the time a federal coal lease is awarded. To date, coal underlying ephemeral stream channels has been considered recoverable, which means that companies have paid bonus bids ranging from $0.85 to $1.35 per ton for coal underlying ephemeral streams in leases awarded during the past 5 years. If ephemeral channels are considered unmineable, this will create a significant economic hardship for the mining companies. Federal and state governments also will experience a loss of revenue.

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

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

However, as part of this final rule, we adopted most of the added protections for ephemeral streams that we included in our proposed rule. The final rule will protect the important role that ephemeral streams perform within watersheds including providing

protection and maintenance of downstream uses, ecological services, and the hydrologic balance of larger streams because of the impact ephemeral streams have on the form and function of downstream channels and aquatic life. Adopting these protections should ensure that ephemeral streams on reclaimed mine sites continue to provide the ecological services identified in the U.S. Environmental Protection Agency report while not unduly restricting mining through those streams. This approach is consistent with the purposes of SMCRA, as enumerated in section 102 of the Act.

In particular, it will protect society and the environment from the adverse effects of surface coal mining operations, as provided in paragraph (a); assure that surface coal mining operations are conducted so as to protect the environment, as provided in paragraph (d); and strike a balance between environmental protection and the Nation's energy needs, as provided in paragraph (f). Although only certain requirements apply to ephemeral streams, as discussed in final rule § 780.27, these requirements minimize impacts to ephemeral streams.

30 U.S.C.1202.

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

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

Proposed §§ 780.19(c)(3), 780.20(a)(5)(iv), 784.19(c)(3), and 784.20(a)(5)(iv) included peak flow baseline data collection and analysis requirements for ephemeral streams within the proposed permit and adjacent areas. The final rule does not include these requirements because this information is unnecessary for the analysis of the proposed operation's impacts on flooding that the PHC determination must contain. The

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