Wyoming Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

[SPATS No. WY-022]

Wyoming Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the

Wyoming regulatory program (hereinafter, the ``Wyoming program'') under

the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The

proposed amendment consists of the addition and revision of statutes

and rules pertaining to shrub density stocking requirements and

wildlife habitat. The amendment is intended to revise the Wyoming

program to be consistent with SMCRA and the corresponding Federal

regulations.

DATES: Written comments must be received by 4:00 p.m., m.s.t., January

17, 1996. If requested, a public hearing on the proposed amendment will

be held on January 12, 1996. Requests to present oral testimony at the

hearing must be

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received by 4:00 p.m., m.s.t., January 2, 1996.

ADDRESSES: Written comments should be mailed or hand delivered to Guy

V. Padgett at the address listed below.

Copies of the Wyoming program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Casper Field Office.

Guy V. Padgett, Director, Casper Field Office, Office of Surface Mining

Reclamation and Enforcement, Federal Building, Room 2128, 100 East

``B'' Street, Casper, Wyoming 82601-1918

Dennis Hemmer, Director, Department of Environmental Quality, Herschler

Building--4th Floor West, 125 West 25th Street, Cheyenne, Wyoming

82002, Telephone: (307) 777-7938

FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, Telephone: (307) 261-

5824.

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program

On November 26, 1980, the Secretary of the Interior conditionally

approved the Wyoming program. General background information on the

Wyoming program, including the Secretary's findings, the disposition of

comments, and the conditions of approval of the Wyoming program can be

found in the November 26, 1980, Federal Register (45 FR 78637).

Subsequent actions concerning Wyoming's program and program amendments

can be found at 30 CFR 950.12, 950.15, 950.16, and 950.20.

II. Proposed Amendment

By letter dated November 29, 1995, Wyoming submitted a proposed

amendment to is program (administrative record No. WY-031-1) pursuant

to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed

amendment in response to the required program amendments at 30 CFR

950.16(q) and (bb) through (gg). The provisions of the Wyoming

Environmental Quality Act that Wyoming proposes to revise are: Wyoming

Statue (W.S.) 35-11-103, definitions, and W.S. 35-11-402, establishment

of reclamation standards. The provisions of the coal rules and

regulations of the Department of Environmental Quality, Land Quality

Division, that Wyoming proposes to revise are: chapter I, section 2,

definitions; chapter II, section 2, permit application requirements for

surface coal mining operations; chapter IV, section 2, general

environmental protection performance standards for surface coal mining

operations; chapter X, section 4, coal exploration and reclamation

performance standards; chapter XI, section 5, self-bonding; chapter

XIII, section 3, notice and opportunity for public hearing on surface

coal mining permit revisions; chapter XVII, section 1, definitions for

designation of areas unsuitable for surface coal mining; and appendix

A, vegetation sampling methods and reclamation success standards for

surface coal mining operations.

Specifically, Wyoming proposes to delete the definitions for

``Agricultural lands,'' ``Critical habitat,'' and ``Important habitat''

or ``crucial habitat'' at W.S. 35-11-103(e) (xxviii), (xxix), and

(xxx).

Wyoming proposes to revise W.S. 35-11-402(b) to indicate that this

statutory provision addresses, to the extent required by Federal law or

regulations, State wildlife agencies' approval, rather than

consultation and approval, of reclamation standards for fish and

wildlife habitat. It proposes to further revise W.S. 35-11-402(b) to

require that the Wyoming Game and Fish Department shall consider ``fish

and wildlife habitat'' to be that defined at W.S. 35-11-103(e)(xxvi)

and not to include grazing land as defined in W.S. 35-11-103(e) (xxvii)

``unless the grazingland has been designated as critical habitat by the

United States Fish and Wildlife Service'' or ``crucial habitat by the

Wyoming Game and Fish Department prior to submittal of the initial

permit application or any subsequent amendments to the permit

application.'' Wyoming proposes to revise W.S. 35-11-402(c) to require

that native shrubs shall be reestablished on grazing land and that no

shrub species shall be required to be more than one-half of the shrubs

in the postmining standard.

Wyoming also proposes several revisions to its rules and

regulations. In chapter I, Wyoming proposes to revise the definition

for ``Critical habitat'' at section 2(v) to be ``those areas essential

to the survival and recovery of species listed by the Secretary of the

Interior or Commerce as threatened or endangered; (50 CFR Parts 17 and

226).'' It proposes to add a definition for ``Crucial habitat'' at

section 2(w) to be ``those areas, designated as such by the Wyoming

Game and Fish Department, which determine a population's ability to

maintain and reproduce itself at a certain level over a long term.'' It

proposes to add a definition for ``Eligible land'' at section 2(ac) to

be

All land to be affected by a mining operation after the shrub

standard set forth at Chapter IV, Section 2.(d)(x)(E) is approved by

the Office of Surface Mining. Cropland, pastureland, or treated

grazingland approved by the Administrator which is to be affected by

a mining operation after the shrub standard set forth at chapter IV,

section 2.(d)(x)(E) is approved by the Office of Surface Mining is

not `eligible land'.

Wyoming proposes to revise the definition for ``Important habitat'' at

recodified section 2(ax) to be

That habitat which, in limited availability, supports or encourages

a maximum diversity of wildlife species or fulfills one or more

living requirements of a wildlife species. Examples of important

habitat include, but are not limited to, wetlands, riparian areas,

rimrocks, areas offering special shelter or protection, reproduction

and nursery areas, and wintering areas.

It proposes to revise section 2(bc)(iii) to indicate that ``Grazingland

includes rangelands and forest lands where the indigenous native

vegetation is actively managed for grazing, browsing, and occasionally

hay production, and occasional use by wildlife.'' Wyoming proposes to

revise section 2(bc)(viii) to indicate that ``Fish and wildlife habitat

means land dedicated wholly or partially to the production, protection

or management of species of fish or wildlife.'' It proposes to add at

section 2(bc)(xi) a provision to indicate that

``Treated grazingland'' means grazingland which has been altered to

reduce or eliminate shrubs provided such treatment was applied at

least five years prior to submission of the state program permit

application. However, grazingland altered more than five years prior

to submission of the state program permit application on which full

shrubs have reestablished to a density of at least one per nine

square meters does not qualify as treated grazingland.

Wyoming proposes to recodify the definitions in chapter 1, section 2,

to reflect the additions of new terms as discussed above.

In chapter II, Wyoming proposes to revise section 2(a)(vi)(G)(II)

to require that, if crucial habitat, in addition to critical or

important habitat, disruption is likely, the Wyoming Game and Fish

Department shall be contacted to determine the types and numbers of

wildlife likely to be disturbed or displaced. It also proposes to

revise section 2(b)(iv)(C), regarding revegetation plans, to require

that (1) the Wyoming Game and Fish Department shall be consulted, and

its approval received, for minimum stocking and planting arrangements

of trees and shrubs, including species composition

[[Page 65050]]

and ground cover for crucial and critical habitat, (2) the Wyoming Game

and Fish Department shall be consulted for minimum stocking and

planting arrangements of trees and shrubs, including species

composition and vegetative ground cover for important habitat, and (3)

the Wyoming Department of Agriculture shall be consulted on cropland

and erosion control techniques.

In chapter IV, Wyoming proposes to revise section 2(d)(x)(E) to

include a requirement that the postmining density, composition, and

distribution of shrubs shall be based upon site-specific evaluation of

premining vegetation and wildlife use. It proposes to revise section

2(d)(x)(E)(I) to require that (1) except where a lesser density is

justified from premining condition in accordance with appendix A, at

least 20 percent of the eligible land shall be restored to shrub

patches supporting an average density of one shrub per square meter,

(2) patches shall be no less than .05 acres each and shall be arranged

in a mosaic that will optimize habitat interspersion and edge effect,

(3) criteria and procedures for establishing the standard are specified

in appendix A, and (4) this standard shall apply upon approval by OSM

to all lands affected thereafter. It also proposes to revise section

2(d)(x)(E)(II) to require that approved shrub species and seeding

techniques shall be applied to all remaining grazingland. Finally, it

proposes to revise section 2(d)(x)(E)(III) to require that (1) for

areas containing designated critical or crucial habitat, the Wyoming

Game and Fish Department shall be consulted about, and its approval

received for, minimum stocking and planting arrangements of shrubs,

including species composition, and (2) for areas determined to be

important habitat, the Wyoming Game and Fish Department shall be

consulted for recommended minimum stocking and planting arrangements of

shrubs, including species composition, that may exceed the programmatic

standard discussed above.

In chapter X, Wyoming proposes to revise section 4(e) to require

that coal exploration operations that will substantially disturb the

natural land surface shall not disturb critical or crucial habitats and

that they shall consult the Wyoming Game and Fish Department prior to

disturbing important habitat.

In chapter XI, Wyoming proposes to revise section 5(a) to require

that the Administrator of the Division of Land Quality shall require

the substitution of a corporate surety for a self-bond if the financial

information submitted or requested under section 4(a)(ii), rather than

section 3(a)(ii), indicates that the operator no longer qualifies under

the self-bonding program.

In Chapter XIII, Wyoming proposes to revise section 3(a) to require

that (1) the operator's newspaper notice of application for permit

revision shall include the information required by W.S. 35-11-406(j)

and the permit number and date approved, and (2) the operator shall

mail a copy of the application mine plan map to the Wyoming Oil and Gas

Commission in accordance with W.S. 35-11-406(j).

In chapter XVII, Wyoming proposes to revise its rules concerning

designation of areas unsuitable for surface coal mining at section 1(a)

to define ``Fragile lands'' to include crucial habitats for fish or

wildlife.

In appendix A, Wyoming proposes to revise section II.C.3, suggested

sampling procedures for ``shrub habitat characteristics,'' to indicate

that (1) the postmining density composition and distribution of shrubs

shall be based upon site-specific evaluation of the premining

vegetation and wildlife use, (2) except where a lesser density is

justified from premining conditions, at least 20 percent of the

eligible land shall be restored to shrub patches supporting an average

density of one shrub per square meter, (3) the baseline vegetation

``shall,'' instead of ``should,'' include premining shrub distribution

data, (4) shrub density and cover data ``shall,'' instead of

``should,'' be components of the shrub distribution information, (5)

when shrub density data are estimated, they ``shall,'' instead of

``should,'' be gathered from each community, but not from control

areas, reference areas, or extended reference areas, (6) ``shrubs''

``shall,'' instead of ``should,'' be divided into woody species (full

shrubs) and suffrutescent species (subshrubs) for sampling purposes,

(7) shrub density counts shall be performed within a 50 square meter

area using a plot shape appropriate to the community, (8) data

``shall,'' instead of ``should,'' be recorded by species, (9) data

``shall,'' instead of ``should,'' be reported as number per square

meter and per acre, (10) all shrub density data collected after the

effective date specified in chapter IV, section 2(d)(x)(E) of the rules

and regulations shall be subject to the sample adequacy tests specified

in appendix A, section IV, although all shrub density data collected on

land affected prior to the effective date shall not be subject to

sample adequacy tests unless that shrub density data is being used to

fulfill the 20 percent shrub density standard, and (11) when sampling,

which is not subject to sample adequacy, is conducted, the number of

shrub density sample points should correspond to the number of cover

samples in each community type.

In appendix A, Wyoming proposes to revise table 1 to include

parameter values to be used for 50 square meter shrub density plots in

assessing sample adequacy, (2) to revise table 2, minimum and maximum

sample sizes for various sampling methods, to delete the belt transect

sampling method, and (3) to revise table 2 to require, for 50 square

meter shrub density plots, a minimum of 15 samples and to indicate

that, if sample adequacy cannot be achieved after sampling 50 shrub

density plots, the operator shall contact the Land Quality Division for

guidance.

In appendix A, Wyoming proposes to revise section IV.D to require

that, with respect to maximum and minimum sampling sizes, shrub density

be estimated using a 50 square meter plot.

In appendix A, Wyoming proposes to revise section VII.F,

restoration of shrubs, subshrubs, and trees, to require that (1) the

postmining density, composition, and distribution of shrubs shall be

based upon site-specific evaluation of the premining vegetation and

wildlife use and (2) except where a lesser density is justified from

premining conditions, at least 20 percent of the eligible land shall be

restored to shrub patches supporting an average density of one shrub

per square meter. In this section, Wyoming also proposes to delete

various shrub density criteria.

In Appendix A, Wyoming proposes to add in section VIII.E various

and numerous standards and criteria for the evaluation of shrub

density.

Lastly, in appendix A, Wyoming proposes to revise the glossary at

appendix VII to define ``dominant'' as the species with the greatest

density relative to all other species sampled and ``primary shrub

species'' as

All full shrub species which comprise at least 10 percent of the

relative density of full shrubs. However, if an operator selects

option IV, the community-specific full shrub and approved subshrub

density standard, then `primary shrub species' means all full shrub

and approved subshrub species which comprise at least 10 percent of

the relative density of full shrubs. It is further provided under

option IV that in order to be considered as a ``primary shrub

species,'' fringed sagewort must comprise at least 20 percent of the

relative shrub and approved subshrub species composition.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable

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program approval criteria of 30 CFR 732.15. If the amendment is deemed

adequate, it will become a part of the Wyoming program.

1. Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under ``DATES'' or at locations other than the Casper Field Office will

not necessarily be considered in the final rulemaking or included in

the administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

m.s.t., January 2, 1996. Any disabled individual who has need for a

special accommodation to attend a public hearing should contact the

individual listed under FOR FURTHER INFORMATION CONTACT. The location

and time of the hearing will be arranged with those persons requesting

the hearing. If no one requests an opportunity to testify at the public

hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

If only one person requests an opportunity to testify at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meeting will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each program is drafted and promulgated by a

specific State, not by OSM. Under sections 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,

732.15, and 732.17(h)(10), decisions on proposed State regulatory

programs and program amendments submitted by the States must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementing Federal regulations and whether the other

requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 950

Intergrovernmental relations, Surface mining, Underground mining

Dated: December 7, 1995.

Russell F. Price,

Acting Regional Director, Western Regional Coordinating Center.

[FR Doc. 95-30649 Filed 12-15-95; 8:45 am]

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