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: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with additional requirements, 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 addition and revision of

statutes and rules pertaining to shrub density stocking requirements

and wildlife habitat. The amendment was intended to revise the Wyoming

program to be consistent with SMCRA and the corresponding Federal

regulations.

EFFECTIVE DATE: August 6, 1996.

FOR FURTHER INFORMATION CONTACT:

Guy V. Padgett, Director, Casper Field Office, Telephone: (307) 261-

5824, Internet address: [email protected]

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 its 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 (hh). The provisions of the Wyoming

Environmental Quality Act that Wyoming proposed to revise were: Wyoming

Statute (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 proposed to revise were: 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.

OSM announced receipt of the proposed amendment in the December 18,

1995, Federal Register (60 FR 65048), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. WY-31-02).

Because no one requested a public hearing or meeting, none was held.

During its review of the amendment, OSM identified concerns

relating to the proposed provisions of the rule at chapter I, section

2(v), critical habitat for threatened and endangered species; the rules

at chapter I, sections 2(ac) and (bc)(xi), and chapter IV, section

2(d)(x)(E)(I), definitions for ``eligible land'' and ``treated

grazingland'' and reclamation success standard for shrub density: the

rule at chapter II, section 2(a)(vi)(G)(II), consultation by the

Wyoming Land Quality Division on critical habitat; W.S. 35-11-402(b)

and the rules at chapter II, section 2(b)(iv)(C), and chapter IV,

section 2(d)(x)(E)(III), approval of reclamation standards by the

Wyoming Game and Fish Department; the rules at chapter II, section

2(b)(vi)(B)(III) and chapter IV, sections 2(c)(xi)(F)(II) and 2(r),

permit application requirements and performance standards for

protection of important and crucial habitats for fish and wildlife; the

rule at chapter X, section 4(e), disturbance of important habitat by

exploration operations; the rule at chapter XIII, section 2(b), notice

and opportunity for public hearing on permit revision; appendix A,

section VIII.E. and the rule at chapter IV, section 2(d)(x)(E)(I),

programwide or permit-specific consultation and approval by the Wyoming

Game and Fish Department; and appendix A, appendix IV, plant species of

special concern. OSM notified Wyoming of the concerns by letter dated

March 8, 1996 (administrative record No. WY-31-17).

Wyoming responded by letter on April 9, 1996, to each of the issues

(administrative record No. WY-31-18). For some of the issues, Wyoming

submitted specific revisions that it intends to pursue in the State

rulemaking process. This process is expected to produce a formal

amendment that would be submitted to OSM by mid-1997. OSM acknowledges

these revisions but, because they have not yet been promulgated, does

not in the following findings make determinations on their

effectiveness.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds, with additional requirements, that the

proposed program amendment submitted by Wyoming on November 29, 1995,

is no less stringent than SMCRA and no less effective than the

corresponding Federal regulations. Accordingly, the Director approves,

with additional requirements, the proposed amendment.

1. Substantive Revisions to Wyoming's Rules That Are Substantively

Identical to the Corresponding Provisions of the Federal Regulations

Wyoming proposed revisions to the following rules that are

substantive in nature and contain language that is substantively

identical to the requirements of the corresponding Federal regulation

provisions (listed in parentheses).

Chapter I, section 2(bc)(viii) (30 CFR 701.5), land use

definition for ``fish and wildlife habitat,'' and

Chapter XI, section 5(a) (30 CFR 800.23(g)), substitution of a

surety bond for a self-bond.

Because these proposed Wyoming rules are substantively identical to

the corresponding provisions of the Federal regulations, the Director

finds that they are no less effective than the Federal regulations. The

Director approves these proposed rules.

[[Page 40736]]

2. W.S. 35-11-103(e)(xxviii), Definition for ``Agricultural Lands''

On January 24, 1994, OSM at 30 CFR 950.16(bb) required Wyoming to

delete its definition for ``agricultural lands'' at W.S. 35-11-

103(e)(xxviii) or provide an interpretation of the definition that

would make it no less stringent than SMCRA and no less effective than

the Federal regulations (finding No. 1, 59 FR 3521). Wyoming proposed

to delete the definition.

This deletion satisfies the required amendment and does not make

Wyoming's regulatory program less stringent than SMCRA and less

effective than the Federal regulations. Therefore, the Director

approves the proposed deletion of the definition for ``agricultural

lands'' at W.S. 35-11-103(e)(xxviii) and removes the required amendment

at 30 CFR 950.16(bb).

3. W.S. 35-11-103(e)(xxix) and Rule at Chapter I, Section 2(v),

Definition for ``Critical Habitat''

On January 24, 1994, OSM at 30 CFR 950.16(cc) (finding No. 2, 59 FR

3521, 3521-2) required Wyoming to delete its definition for ``critical

habitat'' at W.S. 35-11-103(e)(xxix) or revise it to make the term

applicable to animal and plant species habitats that have been

designated by the Secretary of the Interior as critical habitats under

section 3 of the Endangered Species Act of 1973, as amended (16 U.S.C.

1531 et seq.).

In response to the required amendment, Wyoming proposed to delete

the definition for `'critical habitat'' at W.S. 35-11-103(e)(xxix) but

to add a similar definition for this term in its rules at chapter I,

section 2(v). In this rule, Wyoming proposed that ``critical habitat''

means ``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).''

50 CFR part 226 pertains to habitat for marine mammals, fish, and

reptiles designated as critical by the National Oceanic and Atmospheric

Administration under the jurisdiction of the Secretary of Commerce. 50

CFR Part 17 pertains to critical habitats listed by the Secretary of

the Interior under the Endangered Species Act of 1973, as amended (16

U.S.C. 1531-1543), but it is also in 30 CFR 17.2(b), through its

reference of subpart B, lists threatened and endangered wildlife and

plant species completely under the jurisdiction of the Department of

Commerce and other such species jointly under the jurisdiction of the

Departments of the Interior and Commerce.

There is no counterpart definition for ``critical habitat'' in

SMCRA or the Federal regulations. However, the surface and underground

mining permit application regulations at 30 CFR 780.16(a) and (b) and

784.21(a) and (b) require resource information and protection and

enhancement plans for listed or proposed endangered or threatened

species of plants or animals or their ``critical habitats'' listed by

the Secretary of the Interior under the Endangered Species Act of 1973,

as amended (16 U.S.C. 1531 et seq.). Also, the performance standards at

30 CFR 816.97(b) and 817.97(b) require that no surface or underground

mining activity shall be conducted that is likely to jeopardize the

continued existence of endangered or threatened species listed by the

Secretary of the Interior or that is likely to result in the

destruction or adverse modification of designated ``critical habitats''

of such species in violation of the Endangered Species Act of 1973, as

amended.

Wyoming's referencing of the Secretary of Commerce's regulations at

50 CFR Part 226 has no relevance to the Wyoming regulatory program,

because the State has no mammals, fish, and reptiles that spend at

least part of their lives in a marine environment. Wyoming's

referencing of these regulations does not itself make its rule less

effective than the Federal regulations, but OSM indicated in the

January 24, 1994, Federal Register notice that Wyoming's protection of

critical habitat designated by the Secretary of the Interior or

Commerce could be interpreted to allow Wyoming to choose to protect the

critical habitat designated by one of the departments, but not both.

OSM reasoned that Wyoming could choose to protect critical habitat

designated by the Department of Commerce (for which there is none in

Wyoming) and not protect critical habitat designated by the Secretary

of the Interior.

In its April 9, 1996, response to OSM's issue letter, Wyoming

stated that the Secretary of Commerce's regulations at 50 CFR part 226

have no relevance in the State.

On the basis of this clarification, OSM finds that Wyoming's

proposed deletion of the definition for ``critical habitat'' at W.S.

35-11-103(e)(xxix) and the proposed addition of a definition for this

term in its rule at chapter I, section 2(v) are no less effective than

the Federal regulations at 30 CFR 780.16(a) and (b), 784.21(a) and (b),

816.97(b), and 817.97(b). Therefore, the Director approves the proposed

deletion and addition, and removes the required amendment at 30 CFR

950.16(cc). However, to avoid confusion by someone who reads Wyoming's

rules but has not read this finding, OSM recommends that Wyoming in a

future amendment delete in the rule at chapter I, section 2(v) the

references to the Secretary of Commerce and the regulations at 50 CFR

part 226.

4. W.S. 35-11-103(e)(xxx) and Rules at Chapter I, Sections 2(ax) and

(w), Definitions for ``Important Habitat'' and ``Crucial Habitat''

On January 24, 1994, OSM at 30 CFR 950.16(dd) (finding No. 3, 59 FR

3521, 3522) required Wyoming to delete its definition for ``important

habitat or crucial habitat'' at W.S. 35-11-103(e)(xxx) or revise it so

that it did not exclude ``agricultural lands,'' which were defined at

W.S. 35-11-103(e)(xxviii) as `'cropland, pastureland, hayland, or

grazingland,'' from lands that could also have to be protected as

``important habitats or crucial habitats.''

In response to the required amendment, Wyoming proposed to delete

the definition for `'important habitat or crucial habitat'' at W.S. 35-

11-103(e)(xxx) but to add separate definitions for ``important

habitat'' and ``crucial habitat'' in the rules at chapter I, sections

2(ax) and (W).

Wyoming proposed that ``important habitat'' means

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 also proposed that ``crucial habitat''means ``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 the long term.''

There is no counterpart definition for ``important habitat'' or

``crucial habitat'' in SMCRA or the Federal regulations. However, the

surface mining permit application regulations at 30 CFR 780.16 (a) and

(b) require resource information and protection and enhancement plans

for ``habitats of unusually high value for fish and wildlife'' such as

important streams, wetlands, riparian areas, cliffs supporting raptors,

areas offering special shelter or protection, migration routes, or

reproduction and wintering areas. Also, the performance standards at 30

CFR 816.97(f) require that surface mining activities shall avoid

[[Page 40737]]

disturbances to, enhance where practicable, or restore ``habitats of

unusually high value for fish and wildlife.''

As described in 30 CFR 780.16(a)(2)(ii), ``habitats of unusually

high value for fish and wildlife'' include ``important streams,

wetlands, riparian areas, cliffs supporting raptors, areas offering

special shelter or protection, migration routes, or reproduction and

wintering areas.'' This description coincides with Wyoming's proposed

definition for ``important habitat'' at chapter I, proposed section

2(ax), which states that ``important habitat'' includes ``wetlands,

riparian areas, rimrocks, areas offering special shelter or protection,

reproduction and nursery areas, and wintering areas.''

Wyoming's proposed rule definitions for ``important habitat'' and

``crucial habitat'' at chapter I, sections 2(ax) and (w) are not

inconsistent with (1) the surface mining permit application regulations

at 30 CFR 780.16 (a) and (b), which require resource information and

protection and enhancement plans for ``habitats of unusually high value

for fish and wildlife'' and (2) the performance standards at 30 CFR

816.97(f), which require that operators of surface coal mining

activities shall avoid disturbances to, enhance where practicable, or

restore ``habitats of unusually high value for fish and wildlife.''

Therefore, the Director approves Wyoming's proposed rule definitions

for ``important habitat'' and ``crucial habitat'' at chapter I,

sections 2 (ax) and (w).

Also, because Wyoming deleted its statutory definition for

``important habitat or crucial habitat'' at W.S. 35-11-103(e)(xxx) and

because its proposed rule definitions for ``important habitat'' and

``crucial habitat'' at chapter I, sections 2 (ax) and (w) do not

exclude ``agriculture lands,'' which was defined at W.S. 35-11-

103(e)(xxviii) but which has now been deleted (see finding No. 2), the

Director removes the required amendment at 30 CFR 950.16(dd).

5. W.S. 35-11-402(b) and Rules at Chapter II, Section 2(b)(iv)(C), and

Chapter IV, Sections 2(d)(x)(E) and (E)(III), Establishment of

Reclamation Standards for Fish and Wildlife Habitat and Grazingland

On January 24, 1994, OSM at 30 CFR 950.16(ee) (finding No. 4, 59 FR

3521, 3522-3) required Wyoming to repeal the part of W.S. 35-11-402(b)

that provides direction to the Wyoming Environmental Quality Council to

use the statutory definitions for ``agricultural lands,'' ``critical

habitat,'' and ``important habitat or crucial habitat'' at W.S. 35-11-

103(e)(xviii), (xxix), and (xxx) in establishing reclamation standards

for fish and wildlife habitat that are required by Federal law or

regulations to be approved by State Wildlife agencies. OSM placed this

requirement on the Wyoming program because OSM had disapproved the

three definitions on the basis that they were less stringent than SMCRA

and less effective than the Federal regulations (finding Nos. 1, 2, and

3, 59 FR 3521, 3521-2).

As indicated in finding Nos. 1, 2, and 3, Wyoming proposed to

delete the statutory definitions for ``agricultural lands,'' ``critical

habitat,'' and ``important habitat or crucial habitat'' at W.S. 35-11-

103(e)(xviii), (xxix), and (xxx), and the Director approved these

deletions. At W.S. 35-11-402(b), Wyoming proposed to delete the

references to these statutory definitions. Wyoming's proposed deletion

of the statutory definitions satisfies the required amendment at 30 CFR

950.16(ee). Therefore, the Director removes the required amendment.

W.S. 35-11-402(b).-At existing W.S. 35-11-402(b), Wyoming requires

that, to the extent required by federal law or regulations, the Wyoming

Game and Fish Department's approval has to be obtained for reclamation

standards established for ``fish and wildlife habitat'' as defined at

W.S. 35-11-103(e)(xxvi). As additional requirements at W.S. 35-11-

402(b) (i) and (ii), Wyoming proposed that the Wyoming Game and Fish

Department's approval would have to be obtained for standards

established for `'grazingland,'' as defined at W.S. 35-11-

103(e)(xxvii), if the grazingland includes critical habitat designated

by the U.S. Fish and Wildlife Service or if it includes crucial habitat

designated by the Wyoming Game and Fish Department prior to submittal

of the initial permit application or any subsequent amendments to the

permit application. An amendment to a permit application is, as set

forth in Wyoming's existing rule at chapter I, section 2(e), a permit

application adding new lands to a previously approved permit area, as

allowed by W.S. 35-11-406(a)(xii).

Although unstated, the standards addressed by the proposed

provision are revegetation standards for which the Wyoming Land Quality

Division would have to obtain the Wyoming Game and Fish Department's

approval on a permit-specific basis.

This proposed State statute does not have any direct counterpart in

SMCRA, but it does in part have a counterpart in the Federal

regulations. The Federal regulation at 30 CFR 816.116(b)(3)(i) requires

for areas to be developed for fish and wildlife habitat, that success

of vegetation, which is to be based upon tree and shrub stocking and

vegetative ground cover parameters, be specified by the regulatory

authority after consultation with and approval by the State agency

responsible for the administration of the wildlife program.

The existing provision at proposed W.S. 35-11-402(b) requires

Wyoming Game and Fish Department approval of revegetation standards for

land to be reclaimed to fish and wildlife habitat. This provision is

consistent with the corresponding Federal regulation at 30 CFR

816.116(b)(3)(i), which requires the State wildlife agency's approval

of the revegetation standards for areas to be reclaimed for fish and

wildlife habitat.

The proposed provision at W.S. 35-11-402(b)(i) requires Wyoming

Game and Fish Department approval of revegetation standards for

grazingland including critical habitat. As discussed in finding No. 10,

the Federal regulation at 30 CFR 780.16(a)(2)(i) requires Wyoming to

obtain the approval of the U.S. Fish and Wildlife Service, not the

State wildlife agency, on any critical habitat that could be affected

by mining operations. Although Wyoming does not indicate in the

proposed provision at W.S. 35-11-402(b)(i) that it must obtain U.S.

Fish and Wildlife Service approval, this does not make the provision

less effective than the Federal regulation at 30 CFR 780.16(a)(2)(i),

because Wyoming has narrowly worded the provision in such a way as to

only apply to Wyoming Game and Fish Department approvals. This does

not, however, relieve Wyoming of the responsibility to require such

U.S. Fish and Wildlife Service approval through its rule at chapter II,

section 2(a)(vi)(G)(II). Although the Federal regulations do not

require State wildlife agency approval for critical habitat, Wyoming's

proposal to do so amounts to an additional requirement that odes not

render the proposed provision at W.S. 35-11-402(b)(i) less effective

than the Federal regulation at 30 CFR 780.16(a)(2)(i).

The proposed provision at W.S. 35-11-402(b)(ii) requires Wyoming

Game and Fish Department approval of revegetation standards for

grazingland, as defined at W.S. 35-11-103(e)(xxvii), which was

designated by the Wyoming Game and Fish Department as crucial habitat

prior to submittal of the initial permit application or any subsequent

amendments to the permit application. As set out in Wyoming's

definitions, grazingland is a different and separate land use from fish

and wildlife habitat. Therefore, grazingland with crucial habitat on

it, regardless of when the crucial habitat was designated, is not

[[Page 40738]]

fish and wildlife habitat. ``Fish and wildlife habitat,'' as defined at

W.S. 35-11-103(e)(xxvi), is ``land dedicated wholly or partially to the

protection, protection or management of species of fish or wildlife''

(emphasis added). ``Grazingland,'' as defined at W.S. 35-11-

103(e)(xxvii) ``includes rangelands and forestlands where the

indigenous native vegetation is actively managed for grazing, browsing,

occasional hay production, and occasional use by wildlife'' (emphasis

added). In its April 9, 1996, letter response to OSM's issue letter,

Wyoming implicitly acknowledged this difference when it stated that

there is ``very little habitat which is dedicated wholly or partially

to the production, protection or management of species of fish or

wildlife'' (emphasis in the original, page 3 of Wyoming's letter, item

No. 4.B). In its proposed provision at W.S. 35-11-402(b)(ii), the

Wyoming Land Quality Division requires Wyoming Game and Fish Department

approval of revegetation standards for certain ``grazingland.'' To the

extent that the corresponding Federal regulation at 30 CFR

816.116(b)(3)(i) only requires State wildlife agency approval of

revegetation standards for ``fish and wildlife habitat,'' the proposed

provision at W.S. 35-11-402(b)(ii) goes beyond the requirements of the

Federal regulation.

For the reasons discussed above, the Director finds that proposed

W.S. 35-11-402(b)(i) and (ii) are no less stringent than SMCRA and no

less effective than the Federal regulation at 30 CFR 816.116(b)(3)(i).

The Director approves these statutory provisions.

Rules at chapter II, section 2(b)(iv)(C), and chapter IV, sections

2(d)(x)(E) and (E) (III).--Wyoming's revegetation plan requirements for

surface coal mining permit applications are in its rule at chapter II,

section 2(b)(iv)(C). Wyoming proposed to revise the rule to require

consultation with the Wyoming Department of Agriculture on cropland and

erosion control techniques. The Federal permitting regulation at 30 CFR

780.18(b)(5) requires a plan for revegetation as required in 30 CFR

816.111 through 816.116. The Director finds that consultation with the

Wyoming Department of Agriculture would potentially result in a permit

that affords greater environmental protection to lands developed for

cropland. This proposed revision to the rule at chapter II, section

2(b)(iv)(C) is not inconsistent with the intent of the Federal

regulation at 30 CFR 780.18(b)(5).

Some of Wyoming's revegetation performance standards are in its

rules at chapter IV, section 2(d)(x)(E). Wyoming proposed at section

2(d)(x)(E) that the postmining density, composition, and distribution

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

vegetation and wildlife use. The Federal regulation at 30 CFR

816.116(a)(2) requires that standards for revegetation success shall

include criteria representative of unmined lands in the area being

reclaimed to evaluate the appropriate vegetation parameters of ground

cover, production, or stocking. The Director finds that this proposed

revision to the rule at chapter IV, section 2(d)(x)(E) is not

inconsistent with the Federal regulation at 30 CFR 816.116(a)(2).

Wyoming proposed to further revise the rule at chapter II, section

2(b)(iv)(C) to (1) require, for crucial and critical habitats,

consultation with and approval by the Wyoming Game and Fish Department

on minimum stocking and planting arrangements of trees and shrubs,

including species composition and vegetative ground cover and (2)

require, for important habitats, consultation with the Wyoming Game and

Fish Department on minimum stocking and planting arrangements of trees

and shrubs, including species composition and vegetative ground cover.

Wyoming proposed at chapter IV, section 2(d)(x)(E) (III) to (1)

require, for areas containing designated critical or crucial habitats,

consultation with and approval by the Wyoming Game and Fish Department

on minimum stocking and planting arrangements of shrubs, including

species composition, and (2) require, for areas containing important

habitats, consultation with the Wyoming Game and Fish Department to

obtain recommended minimum stocking and planting arrangements of

shrubs, including species composition, that may exceed the preceding

programmatic standard (the standard at section 2(d)(x)(E)(I), which

requires that, except where a lesser density is justified from

premining conditions in accordance with appendix A, at least 20 percent

of the eligible lands shall be restored to shrub patches supporting an

average density of one shrub per square meter). With two exceptions,

these proposed consultation and approval requirements and consultation-

only requirements are the same as the proposed statutory requirements

for W.S. 35-11-402(b) that are addressed above.

The first exception is that the rules indicate that consultation

with and approval by the Wyoming Game and Fish Department need occur on

crucial habitat (i.e., all crucial habitat regardless of when it is

designated), whereas the statute indicates that the approval by the

Wyoming Game and Fish Department need only occur on those crucial

habitats that are designated prior to the submittal of the initial

permit application or any subsequent permit application amendments. To

the extent that the proposed rules at chapter II, section 2(b)(iv)(C),

and chapter IV, section 2(d)(x)(E)(III), require Wyoming Game and Fish

Department approval of certain crucial habitats not required by the

statute at W.S. 35-11-402(b)(ii), the proposed rules and statute are

not consistent. Therfore, the Director is requiring Wyoming to (1)

revise the rules at chapter II, section 2(b)(iv)(C) and chapter IV,

section 2(d)(x)(E)(III) to require Wyoming Game and Fish Department

approval of revegetation standards for grazingland that was designated

by the Wyoming Game and Fish Department as crucial habitat prior to

submittal of the initial permit application or any subsequent

amendments to the permit application, or (2) to revise the statute at

W.S. 35-11-402(b)(ii) to remove the phrase ``prior to submittal of the

initial permit application or any subsequent amendments to the permit

application.''

The second exception is that the rules do not require consultation

and approval on all surface mined lands to be reclaimed for a ``fish

and wildlife habitat'' land use, whereas the statute does. The rules

require consultation and concurrence on critical habitat and crucial

habitat, but they do not require consultation and concurrence on lands

to be reclaimed for the fish and wildlife habitat land use. The Federal

regulations at 30 CFR 816.116(b)(3)(i) require, for areas to be

developed for the fish and wildlife habitat land use, consultation and

concurrence by the State agency responsible for the administration of

the wildlife program on minimum stocking and planting arrangements for

tree and shrub stocking. To the extent that the rules at chapter II,

section 2(b)(iv)(C), and chapter IV, section 2(d)(x)(E)(III), do not

require consultation with and approval by the Wyoming Game and Fish

Department on minimum stocking and planting arrangements for tree and

shrub stocking on lands to be reclaimed for the fish and wildlife

habitat land use, they are less effective than the Federal regulations

at 30 CFR 816.116(b)(3)(i). Therefore, the Director approves the rules

at chapter II, section 2(b)(iv)(C) and chapter IV, section

2(d)(x)(E)(III) but requires Wyoming to revise them to require

consultation with and approval by the Wyoming Game and Fish Department

of tree and shrub standards for all lands to be reclaimed for the fish

and wildlife habitat land use.

[[Page 40739]]

In conclusion, the Director finds, for the reasons discussed above,

that the proposed rules at chapter II, section 2(b)(iv)(C), and chapter

IV, section 2(d)(x)(E)(III), are less effective than the Federal

regulations at 30 CFR 816.116(b)(3)(i). The Director approves the

proposed rules but requires Wyoming to revise them.

6. W.S. 35-11-402(c), Establishment of Shrubs on Grazingland

On January 24, 1994, OSM at 30 CFR 950.16(ff) (finding No. 5, 59 FR

3521, 3523) required Wyoming to either delete W.S. 35-11-402(c) (which

required reestablishment of shrubs on grazingland to a density of one

shrub per 9 square meters, or to the premining density, whichever was

less) or to submit documentation that the shrub density requirement was

consistent with SMCRA and no less effective than the Federal

regulations.

In response to the required amendment, Wyoming proposed to delete

the shrub density for grazingland from W.S. 35-11-402(c). This deletion

satisfies the required amendment at 30 CFR 950.16(ff), and the Director

is removing the required amendment. (Note, however, that Wyoming has

now proposed shrub density standards elsewhere in its rules. For a

discussion of the effectiveness of those rules, see finding No. 7.)

At W.S. 35-11-402(c), Wyoming also proposed, for the reclamation of

grazingland, that native shrubs be reestablished. It also stipulated

that no shrub species shall be required to be more than one-half of the

shrubs in the postmining standard.

Section 515(b)(19) requires that surface coal mining and

reclamation operations establish on regraded areas, and all other lands

affected, a diverse, effective, and permanent vegetative cover of the

same seasonal variety native to the area of land affected.

Wyoming's proposed W.S. 35-11-402(c) is no less stringent than

section 515(b)(19) of SMCRA in that it requires the use of native

species and, through its requirement that no shrub species shall be

more than one-half of the shrubs in the postmining standard, promotes a

diverse vegetative cover.

For the above stated reasons, the Director approves proposed W.S.

35-11-402(c).

7. Rules at Chapter I, Section 2(ac); Chapter IV, Section 2(d)(x)(E)(I)

and (II); and Appendix A: Definition for ``Eligible Land'' and

Reclamation Success Standards for Shrub Density

On January 24, 1994, OSM at 30 CFR 950.16(gg) (finding No. 6, 59 FR

3521, 3524) required Wyoming to amend the rule at chapter IV, section

2(d)(X)(E) and appendix A to include shrub density requirements that

are in compliance with SMCRA and the Federal regulations. In response

to the required amendment, Wyoming proposed the following revisions to

its rules.

At chapter I, section 2(ac), Wyoming proposed that ``eligible

land'' means

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''

(emphasis added).

In its rule at chapter IV, section 2(d)(x)(E) (I) and (II), Wyoming

proposed that

(I) Except where a lesser density is justified from premining

conditions in accordance with Appendix A, at least 20 percent of the

eligible land shall be restored to shrub patches supporting an

average of one shrub per square meter. Patches shall be no less than

.05 acres each and shall be arranged in a mosaic that will optimize

habitat interspersion and edge effect. Criteria and procedures for

establishing the standard are specified in Appendix A. This standard

shall apply upon approval by OSM to all lands affected thereafter.

(II) Approved shrub species and seeding techniques shall be

applied to all remaining grazingland. Trees shall be returned to a

density equal to the premining conditions

(emphasis added).

Appendix A of Wyoming's rules contains vegetation sampling methods

and reclamation success standards for surface coal mining operations.

In the following sections of appendix A, Wyoming proposed revisions

that restate the above-discussed rules and detail the vegetation

analyses that must be made by operators to implement the rules: II.C.3,

detailed qualitative and quantitative sampling procedures, suggested

sampling procedures for shrub habitat characteristics; VII.F,

developing a revegetation plan, restoration of shrubs, subshrubs, and

trees; and VIII.E, testing adequacy of reclamation, summary. Also, in

the following sections of appendix A, Wyoming proposed other

miscellaneous related revisions: Table 1, values for use in sample

adequacy formula; table 2 and IV.D. minimum and maximum sample sizes

for various sampling methods; and appendix VII, glossary terms

``dominant'' and ``primary shrub species.'' The effect of these

proposed rules is that, with respect to lands to be reclaimed for a

grazingland use or a fish and wildlife habitat land use, there is one

shrub reclamation standard that applies to lands disturbed prior to the

date of OSM's approval of the rules, and there is a different one that

applies to lands disturbed after the date of OSM's approval of the

rules.

For those lands disturbed prior to the date of OSM's approval, the

requirements of the existing rule at chapter IV, section 2(d)(x)(E)

applies. It sets a reclamation goal of one shrub per square meter in

shrub patches on 10 percent of the affected land. For those lands

disturbed after the date of OSM's approval, the requirements of the new

definition for ``eligible land'' at chapter I, section 2(ac), the

revised rules at chapter IV, section 2(d)(x)(E) (I) and (II), and the

revised appendix A for the rules apply. They require that, except where

a lesser density is justified from premining conditions in accordance

with appendix A, at least 20 percent of the affected land be restored

to shrub patches supporting an average of one shrub per square meter.

For both the pre-approval and post-approval affected lands, the

operator must seed the areas outside the shrub patches with an approved

seeding mixture that includes shrubs. The existing rule at chapter IV,

section 2(d)(x)(E) specifies this when it states that ``(a)pproved

shrub species and seeding techniques shall be applied to all remaining

surfaces used jointly by livestock and wildlife.'' The proposed rule at

chapter IV, section 2(d)(x)(E)(II) specifies this when it states that

``(a)pproved shrub species and seeding techniques shall be applied to

all remaining grazingland.''

The Federal regulation at 30 CFR 816.116(a)(1) requires the State

regulatory authority to select standards for success and statistically

valid sampling techniques for measuring success and to include them in

an approved regulatory program. The standards proposed by Wyoming and

discussed above constitute such standards and techniques.

30 CFR 816.116(b)(3) requires, for areas developed for fish and

wildlife habitat, success of vegetation to be determined on the basis

of tree and shrub stocking and vegetative ground cover. As further

required at 30 CFR 816.116(b)(3)(i), minimum stocking and planting

arrangements must be specified by the State regulatory authority on the

basis of local and regional conditions and after consultation with and

approval by the State agency responsible for the administration of the

wildlife program. By letter dated March 28, 1996, the Wyoming Game and

Fish Department concurred with the

[[Page 40740]]

proposed shrub density standards (administrative record No. WY-31-18).

Because Wyoming has proposed shrub reestablishment success

standards and statistically valid sampling techniques that should

ensure a vegetative stand which is effective in implementing the

grazingland and fish and wildlife habitat land uses, and because the

State wildlife agency has concurred with the standards for the fish and

wildlife habitat land use, the Director finds that Wyoming's proposed

definition for ``eligible land'' at chapter I, section 2(ac), the

revised rules at chapter IV, section 2(d)(x)(E) (I) and (II), and the

revised appendix A, meet the requirements of 30 CFR 816.116(a)(1) and

816.116(b)(3). Accordingly, the Director approves the proposed rules,

and the appendix to the rules, and removes the required amendment at 30

CFR 950.16(gg).

8. Rule at Chapter I, Section 3(bc)(iii), Definition for

``Grazingland''

On July 8, 1992, OSM at 30 CFR 950.16(q) required Wyoming to revise

its definition for ``grazingland'' in its rules at chapter I, section

2(ba)(iii) to clarify that Wyoming's rule requires that land managed

for grazing must also receive consideration for wildlife use (finding

No. 2, 57 FR 30121, 30123-5). Wyoming proposed to satisfy this required

amendment by adding the phrase ``and occasional use by wildlife'' to

its land use definition for ``grazingland'' at chapter I, recodified

section 2(bc)(iii). With the addition of this phrase, this rule

definition is substantively identical to the statue definition for

grazingland at W.S. 35-11-103(e)(xxvii), which OSM approved in the

above-cited 1992 Federal Register notice. The Director finds that

Wyoming's proposed ``grazingland'' definition at chapter I, recodified

section 2(bc)(iii), is no less effective than the corresponding Federal

land use definition of ``grazingland'' at 30 CFR 701.5. Therefore, the

Director approves the proposed definition and removes the required

amendment at 30 CFR 950.16(q).

9. Rule at Chapter I, Section 2(bc)(xi), Definition for ``Treated

Grazingland''

In its process of adopting the shrub reestablishment standards

included in this amendment, Wyoming realized that there might be an

incentive for operators to mechanically or chemically treat areas to be

permitted in the future. If allowed to do so, the operators could

reduce premining shrub densities so that fewer shrubs would have to be

established on reclaimed lands. At the same time, Wyoming recognized

that removal of shrubs from rangeland is a common management tool. With

these things in mind, Wyoming created the term ``treated grazingland''

as a compromise between these two concerns (administrative record No.

WY-31-18).

At chapter I, section 2(bc)(xi), Wyoming proposed 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.

In effect, the proposed definition for ``treated grazingland''

creates three classes of grazingland: (1) Grazingland that is affected

after the date of OSM's approval and that was treated less than 5 years

prior to the submission of the permit application; (2) grazingland that

is affected after the date of OSM's approval and that was treated 5 or

more years prior to the submission of the permit application where the

premining shrub density is equal to or greater than one shrub per 9

square meters; (3) grazingland that is affected after the date of OSM's

approval and that was treated 5 or more years prior to the submission

of the permit application where the premining shrub density is less

than one shrub per 9 square meters.

In order to determine the shrub reestablishment standard that

applies to each of these three classes of grazingland, one must apply

the proposed definition for ``treated grazingland'' in conjunction with

the proposed definition for ``eligible land'' at chapter I, section

2(ac); the proposed rule at chapter IV, section 2(d)(x)(E); and

appendix A to the rules at section VIII.E. A discussion of the shrub

reestablishment standards for each of these classes of grazingland

follows.

For the reasons discussed, the Director, approves the proposed

definition for ``treated grazingland'' at chapter I, section 2(bc)(xi),

because the shrub standards set by Wyoming for treated grazingland

strikes a reasonable balance between agricultural interests and

wildlife habitat needs that is not inconsistent with the intent of

SMCRA and the Federal regulations. However, the Director is requiring

Wyoming to clarify the revegetation standard for grazingland that is

affected after the date of OSM's approval and that was treated less

than 5 years prior to the submission of the permit application.

Grazingland that is affected after the date of OSM's approval and

that was treated less than 5 years prior to the submission of the

permit application. As set forth in the proposed definition for

``treated grazingland'' at chapter I, section 2(bc)(xi), grazingland

that is disturbed after the date of OSM's approval of these rules and

that was treated less than 5 years prior to the submission of the

permit application is not ``treated grazingland.'' Because it is not

``treated grazingland,'' it is ``grazingland.'' As set forth in the

definition for ``eligible land'' at chapter I, section 2(ac), this

grazingland is eligible land that is subject to the shrub standard set

forth at chapter IV, section 2(d)(x)(E), which at subsection (I) states

that ``[e]xcept where a lesser density is justified from premining

conditions in accordance with appendix A, at least 20 percent of the

eligible land shall be restored to shrub patches supporting an average

of one shrub per square meter'' (emphasis added).

Given Wyoming's rationale that it wanted to take away any incentive

for an operator permining shrub densities so that fewer shrubs would

have to be established on reclaimed grazinglands, it is not likely that

Wyoming intended that the postmining shrub reestablishment standard

could be a lesser density that was based on the premining, treated

condition. Even so, the language of the rules could be interpreted to

allow this. Alternatively, it's possible that Wyoming intended that any

operator treating grazingland less than 5 years prior to the submission

of the permit application would than automatically have to reclaim to

the maximum standard of at least one shrub per square meter on 20

percent of the eligible land.

There is no direct counterpart definition for `'treated

grazingland'' in the Federal regulations. However, 30 CFR 816.116(b)(1)

requires that standards for success shall be applied in accordance with

the approved postmining land use and, at a minimum, for areas developed

for use as grazingland, the ground cover and production of living

plants on the revegetated area shall be at least equal to that of a

reference area of ``such other success standards approved by the

regulatory authority.''

Because Wyoming's rules are unclear as to the shrub reestablishment

standard for grazingland that is affected after the date of OSM's

approval and that was treated less than 5 years prior to the submission

of the permit application, the Director finds that Wyoming's proposed

definition for ``treated grazingland'' at chapter I, section

[[Page 40741]]

2(bc)(xi), as applied in conjunction with the proposed definition for

``eligible land'' at chapter I, section 2(ac), the proposed rule at

chapter IV, section 2(d)(x)(E)(I), and appendix A to the rules at

section VIII.E, does not clearly satisfy for this class of grazingland

the Federal regulation at 30 CFR 816.116(b)(1) that requires the

regulatory authority to set standards of revegetation success for areas

developed for grazingland. Therefore, the Director is requiring Wyoming

to revise the definition for ``treated grazingland'' at chapter I,

section 2(bc)(xi), to otherwise revise its rules, or to provide OSM

with a policy statement, clarifying the shrub standard for grazingland

that is affected after the date of OSM's approval and that was treated

less than 5 years prior to the submission of the permit application.

Grazingland that is affected after the date of OSM's approval and

that was treated 5 or more years prior to the submission of the permit

application where the premining shrub density is equal to or greater

than one shrub per 9 square meters.--As set forth in the proposed

definition for ``treated grazingland'' at chapter I, section 2(bc)(xi),

grazingland that is disturbed after the date of OSM's approval of these

rules, was treated more than 5 years prior to the submission of the

permit application, and supports a premining shrub density equal to or

greater than one shrub per 9 square meters is not ``treated

grazingland.'' Because it is not ``treated grazingland,'' it is

``grazingland.'' As set forth in the definition for ``eligible land''

at chapter I, section 2(ac), this grazingland is eligible land that is

subject to the shrub standard set forth at chapter IV, section

2.(d)(x)(E), which at subsection (I) states that ``[e]xcept where a

lesser density is justified from premining conditions in accordance

with appendix A, at least 20 percent of the eligible land shall be

restored to shrub patches supporting an average of one shrub per square

meter.'' Thus, the postmining shrub standard for this class of

grazingland is no more than one shrub per square meter on 20 percent of

the land, and possibly less depending upon the premining shrub density.

The Director finds that Wyoming's proposed definition for ``treated

grazingland'' at chapter I, section 2(bc)(xi), as applied in

conjunction with the proposed definition for ``eligible land'' at

chapter I, section 2(ac), the proposed rule at chapter IV, section

2(d)(x)(E)(I), and appendix A to the rules at section VIII.E,

satisfies, for this class of grazingland, the Federal regulation at 30

CFR 816.116(b)(1) that requires the regulatory authority to set

standards of revegetation success for areas developed for grazingland.

Grazingland that is affected after the date of OSM's approval and

that was treated 5 or more years prior to the submission of the permit

application where the premining shrub density is less than one shrub

per 9 square meters (treated grazingland).--As set forth in the

proposed definition for ``treated grazingland'' at chapter I, section

2(bc)(xi), grazingland that is disturbed after the date of OSM's

approval of these rules, was treated more than 5 years prior to the

submission of the permit application, and supports a premining shrub

density of less than one shrub per 9 square meters in ``treated

grazingland.'' Because it is ``treated grazingland,'' it is not

``eligible land'' as defined at chapter I, section 2(ac) and is not

subject to the shrub standard set forth at chapter IV, section

2(d)(x)(E). For this treated grazingland, the operator is required to

reclaim the land in accordance with chapter IV, section 2(d)(x)(E)(II),

which requires that ``(a)pproved shrub species and seeding techniques

shall be applied to all remaining grazingland.'' Thus, no postmining

shrub standard is set for treated grazingland, but the operator is

required to seed for shrubs using approved species and techniques.

The Director agrees with Wyoming that the shrub standard set by

Wyoming for treated grazingland strikes a reasonable balance between

agricultural interest and grazingland habitat needs that is not

inconsistent with the intent of SMCRA and the Federal regulations.

Therefore, the Director finds that Wyoming's proposed definition for

``treated grazingland'' at chapter I, section 2(bc)(xi), as applied in

conjunction with the proposed definition for ``eligible land'' at

chapter I, section 2(ac), and the proposed rule at chapter IV, section

2(d)(x)(E)(II), satisfies, for this class of grazingland, the Federal

regulation at 30 CFR 816.116(b)(1) that requires the regulatory

authority to set standards of revegetation success for areas developed

for grazingland.

10. Rule Chapter II, Section 2(a)(vi)(G)(II), Consultation by the

Wyoming Land Quality Division On Critical Habitat

In its permit application requirements rule at chapter II, section

2(a)(vi)(G)(II), Wyoming proposed that the Wyoming Game and Fish

Department must be contacted by the Wyoming Land Quality Division if

the disruption of critical habitat is likely. At chapter I, section

2(v), Wyoming proposed to define ``critical habitat'' to mean the

habitat of those threatened and endangered species listed by the

Secretary of the Interior or Commerce in accordance with 50 CFR 17

parts and 226.

Wyoming's existing performance standard rule at chapter IV, section

2(r)(i)(E) requires an operator to promptly report to the Wyoming Land

Quality Division any threatened or endangered species or critical

habitat of such species, which was not reported or investigated in the

permit application. Upon such notification, the Administrator of the

Wyoming Land Quality Division is required to consult with the Wyoming

Game and Fish Department and the U.S. Fish and Wildlife Service.

The Federal regulations at 30 CFR 780.16(a) require the regulatory

authority to consult with State and Federal agencies with

responsibilities for fish and wildlife. 30 CFR 780.16(a)(2)(i) requires

site-specific resource information for listed or proposed endangered or

threatened species of plants or animals or their critical habitats

listed by the Secretary of the Interior under the Endangered Species

Act of 1973, as amended (16 U.S.C. 1531 et seq.). The U.S. Fish and

Wildlife Service is responsible for listing, recovery, administration,

and prohibitions associated with threatened and endangered species

designated under this Act. Therefore, 30 CFR 780.16(a) and (a)(2)(i)

require the regulatory authority to consult with the Fish and Wildlife

Service on critical habitat for Federally-listed threatened and

endangered species.

Because Wyoming's proposed rule at chapter II, section

2(a)(vi)(G)(II) does not require consultation with the U.S. Fish and

Wildlife Service on critical habitat, it is not consistent with its

existing rule at chapter IV, section 2(r)(i)(E) and is less effective

than the Federal regulations at 30 CFR 780.16(a) and (a)(2)(i).

Therefore, the Director approves the proposed rule at chapter II,

section 2(a)(vi)(G)(II) but requires Wyoming to revise it to require

consultation with the U.S. Fish and Wildlife Service on critical

habitat.

11. Rule at Chapter X, Section 4(e), Disturbance of Critical, Crucial,

and Important Habitats by Exploration Operations

In its rule at chapter X, section 4(e), Wyoming proposed to

prohibit coal exploration operations on critical habitat and crucial

habitat, but to allow coal exploration operations on important habitat

after consultation with the Wyoming Game and Fish Department.

[[Page 40742]]

The Federal regulations at 30 CFR 815.15(a) prohibit the

disturbance of ``habitats of unusually high value for fish [and]

wildlife'' by coal exploration operations. As described in 30 CFR

780.16(a)(2)(ii), these habitats include ``important streams, wetlands,

riparian areas, cliffs supporting raptors, areas offering special

shelter or protection, migration routes, or reproduction and wintering

areas.'' This description coincides with Wyoming's proposed definition

for ``important habitat'' at chapter I, section 2(ax), which states

that ``important habitat'' includes ``wetlands, riparian areas,

rimrocks, areas offering special shelter or protection, reproduction

and nursery areas, and wintering areas.'' Therefore, Wyoming's

``important habitat'' is a ``habitat of unusually high value'' as

described in the Federal regulations.

Because Wyoming's proposed rule at chapter X, section 4(e) does not

prohibit the disturbance of ``important habitat'' by coal exploration

operations it is less effective than the corresponding Federal

regulation at 30 CFR 815.15(a). The Director approves the proposed rule

but requires Wyoming to revise it to prohibit the disturbance of

``important habitat'' by coal exploration operations.

12. Rules at Chapter XIII, Section 3(a), Notice and Opportunity for

Public Hearing on Permit Revision

At chapter XIII, section 3(a), Wyoming proposed that the

applicant's newspaper notice for a significant permit revision shall

contain the information required by W.S. 35-11-406(j), the permit

number and date approved, and a general description of the proposed

revision. W.S. 35-11-406(j) requires the notice to contain information

regarding the identity of the applicant, the location of the proposed

operation, the proposed dates of commencement and completion of the

operation, the proposed future use of the affected land, the location

at which information about the application may be obtained, and the

location and final date for filing objections to the application.

In setting forth in corresponding Federal notice requirements for

significant permit revisions, 30 CFR 774.13(b)(2) references 30 CFR

773.13. 30 CFR 773.13(a)(1) itemizes the information that must be

included in an applicant's newspaper notice.

Proposed chapter XIII, section 3(a) includes some notice

requirements that are not included in the corresponding Federal

regulations at 30 CFR 774.13(b)(2) and 773.13(a)(1). These include: The

proposed dates of commencement and completion of the operation, the

proposed future use of the affected land, the permit number and date

approved, and a general description of the proposed revision. These

additional requirements are not inconsistent with 30 CFR 774.13(b)(2)

and 773.13(a)(1). Aside from these requirements, proposed chapter XIII,

section 3(a) also includes, with two exceptions, all of the

requirements of the counterpart Federal requirements at 30 CFR

774.13(b)(2) and 773.13(a)(1). The exceptions are that the proposed

State rule does not include counterparts to 30 CFR 773.13(a)(1)(v) and

(vi) respectively concerning notice of permit request to mine within

100 feet of the outside right-of-way of a public road or to relocate or

close a public road, and permit request for experimental practice.

Although proposed chapter XIII, section 3(a) does not include these

requirements, it need not do so because they are included elsewhere in

Wyoming's regulations at chapter XII, section 1(a)(v)(D) and chapter

XII, section 1(a)(ii)(B). For these reasons, Wyoming's proposed

newspaper notice requirements for permit revisions at chapter XIII,

section 3(a) are no less effective than the corresponding notice

requirements of the Federal regulations at 30 CFR 774.13(b)(2) and

773.13(a)(1).

At chapter XIII, section 3(a), Wyoming also proposed that the

operator shall mail a copy of the application mine plan map the Wyoming

Oil and Gas Commission.

As previously discussed, the Federal regulations at 30 CFR

774.13(b)(2) require for significant permit revisions that the

regulatory authority comply with the notice requirements at 30 CFR

773.13. The Federal regulations at 30 CFR 773.13(a)(3) require the

regulatory authority, upon receipt of a significant revision to a

permit under 30 CFR 774.13, to issue a written notification indicating

the applicant's intention to mine the described tract of land, the

application number or other identifier, the location where the copy of

the application may be inspected, and the location where comments on

the application may be submitted. It further requires the regulatory

authority to send the notification to all State governmental agencies

with an interest in the proposed operation.

The proposed State requirement at chapter XIII, section 3(a)

differs from the Federal requirements at 30 CFR 774.13(b)(2) and

773.13(a)(3) in that the permit revision applicant, rather than the

regulatory authority, is required to notify the interested State

agency. Although this difference is substantive, it does not make the

proposed State rule less effective than the Federal regulations,

because the Federal requirement for notifying the interested State

agency are met.

In conclusion, for the aforementioned reasons, Wyoming's proposed

rule at Chapter XIII, section 3(a) is no less effective than the

corresponding Federal regulations at 30 CFR 774.13(b)(2), 773.13(a)(1),

and 773.13(a)(3). Therefore, the Director approves the proposed

revisions to the rule.

13. Rule at Chapter XVII, Section 1(a), Lands Unsuitable for Mining and

Definition for ``Fragile Lands''

Wyoming proposed to revise its definition for ``fragile lands'' in

its rule at chapter XVII, section 1, which pertains to the designation

of areas unsuitable for surface coal mining. Wyoming proposed to add

crucial or important habitats for fish or wildlife to the list of lands

that constitute ``fragile lands.'' It also proposed that ``critical

habitats for endangered species,'' rather than just `'critical habitats

for endangered species of plants,'' (emphasis added) are ``fragile

lands.''

The corresponding Federal definition for ``fragile lands'' at 30

CFR 762.5 states that `'valuable habitats for fish or wildlife'' are

examples of fragile lands. Instead of using this term, Wyoming uses the

term ``crucial or important habitat.'' Because ``crucial habitat'' and

``important habitat,'' as defined by Wyoming in its rules at chapter I,

sections 2(ax) and (w) (see findings No. 4), are ``valuable habitats

for fish or wildlife'' as used in the Federal definition, Wyoming's

listing of these habitats in its proposed definition for ``fragile

land'' is consistent with the Federal definition for ``fragile land.''

The Federal definition for ``fragile lands'' at 30 CFR 762.5

further states that ``critical habitats for endangered or threatended

species of animals or plants'' (emphasis added) are examples of fragile

lands. In its proposed definition for ``fragile lands,'' Wyoming does

not use the emphasized words ``threatened'' and ``of animals or

plants.'' However, as defined by Wyoming at chapter I, section 2(v),

``critical habitat'' means ``those areas essential to the survival and

recovery of species listed by the Secretary of the Interior or Commerce

as threatended or endangered'' (emphasis added, see finding No. 3).

Therefore, by using the term ``critical habitat'' in its proposed

definition for ``fragile lands,'' Wyoming protects critical habitats of

threatened species in its process for designating lands unsuitable for

mining. Also, by using the term `'critical habitat'' in its proposed

definition for ``fragile lands,'' Wyoming protects critical habitats of

both plant and animal species, because

[[Page 40743]]

the Secretaries of the Interior and Commerce protect both plant and

animal threatened or endangered species.

For these reasons, Wyoming's proposed definition for ``fragile

lands'' at chapter XVII, section 1(a) is no less effective than the

corresponding Federal definition for ``fragile lands'' at 30 CFR 762.5.

Therefore, the Director approves the proposed definition.

14. Required Amendment at 30 CFR 950.16(hh)

By letters dated February 28, 1994, and September 1, 1994, Wyoming

submitted a description of required amendments, a timetable for

enactment of the amendments, and a request for additional time to

complete the rulemaking associated with the required amendments at 30

CFR 950.16 (aa) through (gg). By final rule Federal Register notice

dated December 23, 1994, OSM extended until November 30, 1995, the

deadline for Wyoming to submit an amendment addressing the required

amendments. OSM codified this deadline extension at 30 CFR 950.16(hh).

Wyoming submitted the amendment, which is the subject of this notice,

on November 29, 1995. Because Wyoming has submitted the amendment, the

Director is removing the required amendment at 30 CFR 950.16(hh).

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

National Wildlife Federation, Wyoming Wildlife Federation, and

Wyoming Outdoor Council.--By letter dated January 16, 1996

(administrative record No. WY-31-09), the National Wildlife Federation,

Wyoming Wildlife Federation, and Wyoming Outdoor Council jointly

commented on W.S. 35-11-402(b)(ii). In this statutory provision, the

Wyoming Land Quality Division proposed that, to the extent required by

federal law or regulations, it would have to obtain the approval of the

Wyoming Game and Fish Department for reclamation standards for

``grazingland'' as defined at W.S. 35-11-103(e)(xxvii), if the

grazingland includes crucial habitat designated by the Wyoming Game and

Fish Department ``prior to submittal of the initial permit application

or any subsequent amendments to the permit application.''

The commenters started that the quoted part of the provisions

places a restriction on the protection of crucial habitat that is not

consistent with section 515(b)(2) of SMCRA, which requires that all

surface coal mining operations shall at a minimum ``restore the land

affected to a condition capable of supporting the uses which it was

capable of supporting prior to any mining, or higher or better uses * *

*'' (emphasis added by commenters). They argue that there can be no

restoration to the land's prior wildlife capabilities if the Wyoming

Game and Fish Department cannot update crucial habitat areas after the

initial permit application.

The commenters also cited section 515(b)(24), which requires that

mine operators `'to the extent possible using the best technology

currently available, minimize disturbances and adverse impacts of the

operation on fish, wildlife, and related environmental values, and

achieve enhancement of such resources where practicable.'' The

commenters stated that this provision cannot be carried out if the

Wyoming Game and Fish Department cannot add to crucial habitat maps

after the initial permit application.

In addition, the Wyoming Outdoor Council (Council) by letter dated

January 22, 1996 (administrative record No. WY-31-13), stated that,

although most big game crucial ranges in Wyoming are well defined, the

Wyoming Game and Fish Department has not, because of only having three

nongame biologists for all of Wyoming's 98,000 square miles, identified

crucial habitats for a broad range of species, including raptors, sage

and sharp tail grouse, and ``state priority species.'' The Council

stated that it is conceivable that a permit applicant's baseline

wildlife information could reveal crucial habitats previously

unrecognized by the Wyoming Game and Fish Department. The Council

stated that the proposed statutory provision makes the collection of

wildlife baseline data trivial if these data cannot be used to make

certain resource determinations and then base management prescriptions

on these determination (i.e., wildlife data included in permit

application cannot be used as a basis for designating, protecting, and

enhancing crucial habitat).

The Council cited 30 CFR 780.16(a), which requires that

[e]ach application shall include fish and wildlife resource

information for the permit area and adjacent area. The scope and

level of detail for such information * * * shall be sufficient to

design the protection and enhancement plan required under (b) of

this section.

Referenced 30 CFR 780.16(b), at subsection (2), requires that

[e]ach application shall include a description of how, to the extent

possible using the best technology currently available, the operator

will minimize disturbances and adverse impacts on fish and wildlife.

* * * This description shall--apply at a minimum to species and

habitats identified under paragraph (a) of this section.

The Council concluded that the restriction that proposed W.S. 35-

11-402(b)(ii) places on the protection and enhancement of crucial

habitat is a violation of 30 CFR part 780.

OSM considered these comments in its review of proposed W.S. 35-11-

402(b)(ii). For the reasons discussed in finding No. 5 and below, OSM

does not agree that proposed W.S. 35-11-402(b)(ii) is less effective

than SMCRA and the Federal regulations.

Wyoming's permit application rules at chapter II, section

2(a)(vi)(D)( require studies of wildlife and their habitats in the

level of detail as determined by the Wyoming Land Quality Division,

after consultation with the Wyoming Game and Fish Department. The

purpose of these baseline studies is to identify valuable wildlife

habitats so that the permit applicant can be required to plan mining

and reclamation operations to minimize wildlife impacts. If these

studies reveal valuable wildlife habitat on grazingland, the permit

applicant would be required to accordingly plan mining and reclamation

operations to minimize wildlife impacts, regardless of whether the

Wyoming Game and Fish Department subsequently (after initial permit or

amendment application) designated the valuable habitat as critical

habitat. If the crucial habitat designation on grazing land did occur

after initial permit or amendment application, the Wyoming Land Quality

Division would not under W.S. 35-11-402(b)(ii) have to obtain Wyoming

Game and Fish Department approval of shrub revegetation standards, but,

assuming that the habitat was at least important habitat, it would

still have to solicit the Wyoming Game and Fish Department's

recommendations. The Wyoming Land Quality Division has an obligation to

afford good-faith considerations to all Wyoming Game and Fish

Department recommendations regarding protection, restoration, and

enhancement of wildlife resources, regardless of the postmining land

use.

In addition to the aforementioned permitting requirements, the

permit applicant would not be relieved of the responsibility to meet

the performance

[[Page 40744]]

standards in Wyoming's rules at chapter IV, section 2(r), which

requires an operator, to the extent possible using the best technology

currently available and consistent with the approved postmining land

use, minimize disturbance, and where practicable, enhance wildlife

resources.

University of Wyoming.--The Head of the Department of Plant, Soil,

and Insect Sciences, University of Wyoming, responded but had no

comments on the amendment (administrative record No. WY-31-16).

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Wyoming program.

U.S. Bureau of Mines.--By letter dated December 21, 1995, the U.S.

Bureau of Mines, Division of Environmental Technology, responded that

it had no comments on the amendment (administrative record No. WY-31-

06).

U.S. Army Corps of Engineers.--By letter dated December 27, 1995,

the U.S. Army Corps of Engineers responded that it found the amendment

to be satisfactory (administrative record No. WY-31-07).

U.S. Department of Agriculture, Natural Resources Conservation

Service (NRCS).--By letter dated January 12, 1996, NRCS responded with

comments (administrative record No. WY-31-10).

NRCS recommended that the proposed land use definition of

``grazingland'' at chapter I, section 2(bc)(iii) be revised to read:

``Grazingland includes rangelands and forest lands where the indigenous

native vegetation is actively managed for grazing, browsing, occasional

mechanical forage harvesting, and may also be used by wildlife.'' OSM

made Wyoming aware of this recommendation, but it did not require

Wyoming to revise the proposed definition because, as discussed in

finding No. 8, it is no less effective than the corresponding Federal

land use definition for ``grazingland'' at 30 CFR 701.5.

NRCS commented on the proposed rule at chapter II, section

2(b)(iv)(C), which includes requirements for permit application

revegetation plans. The existing, unrevised language of this rule

indicates that the ``[t]he standards and specifications adopted by the

State Conservation Commission for mine reclamation shall be considered

by the applicant during the preparation of the reclamation plan

whenever practicable.'' NRCS stated that the State Conservation

Commission is no longer in existence and that the State Board of

Agriculture now has this former Commission's responsibilities; it also

stated that the rule should indicate where the referenced standards and

specifications can be obtained. In its March 8, 1996, issue letter, OSM

notified Wyoming of this comment. In its April 9, 1996, response,

Wyoming confirmed that the State Conservation Commission has disbanded

and been replaced by the State Board of Agriculture. Wyoming stated

that this Board does not have the responsibility for setting standards

and specifications for mine reclamation. Therefore, Wyoming indicated

it would in the future propose to OSM that the above-quoted sentence be

deleted from the rule. Wyoming noted that another provision of the

rule, which requires consultation with the Wyoming Department of

Agriculture on croplands, will be retained because the Federal

regulations at 30 CFR 780.23(a)(2)(ii) require consultation with such

State agricultural agencies.

Bureau of Land Management.--By letter dated January 18, 1996, the

Bureau of Land Management, Rock Springs District Office (BLM-RSDO),

responded with comments (administrative record No. WY-31-12). Those

comments that relate to proposed amendment revisions are discussed

below. Other comments that relate to rules that are not proposed for

revision in this amendment have been included in the administrative

record for Wyoming's future consideration.

BLM-RSDO commented that the land use definition for ``grazingland''

in the proposed rule at chapter I, section 2(bc)(iii), should be

revised by deleting the proposed phrase ``and occasional use by

wildlife.'' In making this comment, BLM-RSDO was apparently unaware

that Wyoming was adding the phrase ``and occasional use by wildlife''

in response to the required amendment at 30 CFR 950.16(q) that OSM

placed on the Wyoming program. For a discussion of the required

amendment and proposed definition, which the Director is approving, see

finding No. 8.

BLM-RSDO commented that the revisions proposed in the land use

definition for ``fish and wildlife habitat'' in the proposed rule at

chapter I, section 2(bc)(viii) should not be made and that the

definition should remain unchanged. As discussed in finding No. 1, the

Director is approving the proposed definition because it is

substantively identical to the corresponding Federal land use

definition for ``fish and wildlife habitat'' at 30 CFR 701.5.

BLM-RSDO submitted comments on appendix A, section VIII.E (testing

of adequacy of reclamation, evaluation of shrub density) questioning

why treated grazingland was not subject to the standard of one shrub

per square meter on the 20 percent of the affected area that is set

forth in the rules at chapter IV, section 2(d)(x)(E). As discussed in

finding No. 9 and as set forth in the proposed definition for ``treated

grazingland'' at chapter I, section 2(bc)(xi), grazingland that is

disturbed after the date of OSM's approval of these rules, was treated

more than 5 years prior to the submission of the permit application,

and supports a premining shrub density of less than one shrub per 9

square meters is ``treated grazingland.'' As discussed in the finding,

the Director agrees with Wyoming that the shrub standard set by Wyoming

for treated grazingland strikes a reasonable balance between

agricultural interests and wildlife habitat needs that is not

inconsistent with the intent of SMCRA and the Federal regulations.

Lastly, BLM-RSDO commented that the list of plant species of

special concern in appendix A, appendix IV, should be updated with 1995

data from the Wyoming Natural Diversity Database. OSM included this

comment in its March 9, 1996, issue letter to Wyoming. In response,

Wyoming stated that it would, through the rulemaking process and in

some future amendment, remove the list from appendix A and instead

refer the reader to the Wyoming Natural Diversity Database Office for a

current list of plant species of special concern.

By letter dated January 18, 1996, BLM, Wyoming State Office (BLM-

WSO), responded with a comment on the proposed rule at chapter XIII,

section 3(a) (administrative record No. WY-31-15). Wyoming proposed to

revise the rule to require coal operators to mail copies of significant

permit revision maps to the Wyoming Oil and Gas commission, rather than

owners of record, in accordance with W.S. 35-11-406(j). BLM-WSO

recommended that the rule be revised to require coal operators to mail

pertinent maps to all oil and gas operators within the permit area. OSM

did not require Wyoming to make this recommended revision because the

Federal regulations at 30 CFR 774.13(b)(2) and 773.13(a)(3) do not

require it. As discussed in finding No. 12, the Director is approving

the proposed rule on the basis that it is no less effective than the

corresponding Federal regulations.

U.S. Fish and wildlife Service (FWS).--By letter dated January 19,

[[Page 40745]]

1996, FWS responded with comments (administrative record No. WY-31-11).

FWS commented that the rules in several places require consultation

with the Wyoming Game and Fish Department on minimum stocking and

planting arrangements of trees and shrubs on critical habitats, which

Wyoming defines as those areas essential to the survival and recovery

of species listed by the Secretaries of the Interior and Commerce as

threatened or endangered. FWS stated that consultation on Federally

designated critical habitats must occur with FWS and cannot be

delegated to a State agency.

OSM agreed with FWS's comment and notified Wyoming in the March 8,

1996, issue letter that, to be no less effective than the Federal

permit application at 30 CFR 780.16(a) and (a)(2)(i), Wyoming must

revise its proposed rule at chapter II, section 2(a)(vi)(G)(II) to

require consultation with FWS on critical habitat. In its April 9,

1996, response to the issue letter, Wyoming acknowledged the need to

revise the rule, and it will do so in the future. As discussed in

finding No. 10 of this notice, the Director finds that Wyoming's

proposed rule at chapter II, section 2(a)(vi)(G)(II) is less effective

than the Federal regulations at 30 CFR 780.16(a) and (a)(2)(i).

Therefore, the Director is requiring Wyoming to revise the rule to

require consultation with FWS on critical habitat.

FWS also commented that Wyoming's Enrolled Act No. 8, which limits

some alterations to crucial habitat designations by the Wyoming Game

and Fish Department, seems to conflict with the intent of SMCRA and

could affect habitats of value to migratory birds and other species of

high Federal interest. For a response to this general comment on W.S.

35-11-402(b)(ii), see the above responses to the comments on this

section of the Wyoming's statute from the National Wildlife Federation,

Wyoming Wildlife Federation, and Wyoming Outdoor Council.

Mine Safety and Health Administration.--By letter dated January 24,

1996, the Mine Safety and Health Administration responded but had no

comments on the amendment (administrative record No. WY-31-14).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that Wyoming proposed to make in its amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. WY-31-03). It

did not respond to OSM's request.

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

WY-31-04). By letter dated January 4, 1996, the SHPO indicated he had

no objections to the proposed amendment (administrative record No. WY-

31-08). ACHP did not respond to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with additional

requirements, Wyoming's proposed amendment as submitted on November 29,

1995.

The Director approves, as discussed in:

Finding No. 1, revision of the land use definition for ``fish and

wildlife habitat'' at chapter I, section 2(bc)(viii), and revision of

chapter XI, section 5(a), substitution of a surety bond for a self-

bond;

Finding No. 2, deletion of the definition for ``agricultural

lands'' at W.S. 35-11-103(e)(xxviii);

Finding No. 3, deletion of the definition for ``critical habitat''

at W.S. 35-11-103(e)(xxix) and revision of the definition for

``critical habitat`` at chapter I, section 2(v);

Finding No. 4, deletion of the definition for ``crucial habitat''

at W.S. 35-11-103(e)(xxx), addition of the definition for ``crucial

habitat'' at chapter I, section 2(w), and revision of the definition

for ``important habitat'' at chapter I, section 2(ax);

Finding No. 6, revision of W.S. 25-11-402(c), establishment of

shrubs on grazingland;

Finding No. 7, addition of the definition for ``eligible land'' at

chapter I, section 2(ac), and revision of chapter IV, section

2(d)(x)(E) (I) and (II), and appendix A, reclamation success standards

for shrub density;

Finding No. 8, revision of the land use definition for

``grazingland'' at chapter I, section 2(bc)(iii);

Finding No. 12, revision of chapter XIII, section 3(a), notice and

opportunity for public hearing on permit revision; and

Finding No. 13, revision of the definition for ``fragile lands'' at

chapter XVII, section 1(a), with respect to designation of lands

unsuitable for mining.

With the requirement that Wyoming further revise its rules and/or

statute, the Director approves, as discussed in:

Finding No. 5, revision of W.S. 35-11-402(b), chapter II, section

2(b)(iv)(C), and chapter IV, sections 2(d)(x)(E) and (E)(III),

establishment of reclamation standards for fish and wildlife habitat

and grazingland;

Finding No. 9, addition of the land use definition for ``treated

grazingland'' at chapter I, section 2(bc)(xi);

Finding No. 10, revision of chapter II, section 2(a)(vi)(G)(II),

consultation by the Wyoming Land Quality Division on critical habitat;

and

Finding No. 11, revision of chapter X, section 4(e), disturbance of

critical, crucial, and important habitats by exploration operations.

The Federal regulations at 30 CFR part 950, codifying decisions

concerning the Wyoming program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage states to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. 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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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 such 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

[[Page 40746]]

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 (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.

6. Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 950

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 24, 1996.

Peter A. Rutledge,

Acting Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 950--WYOMING

1. The authority citation for part 950 continues to read as

follows:

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

2. Section 950.15 is amended by adding paragraph (x) to read as

follows:

Sec. 950.15 Approval of regulatory program amendments.

* * * * *

(x) The following statutes and rules, as submitted to OSM on

November 29, 1995, are approved effective August 6, 1996: Deletion of

W.S. 35-11-103(e)(xxviii), definition for ``agricultural lands;'' W.S.

35-11-103(e)(xxix) and the rule at chapter I, section 2(v), definition

for ``critical habitat;'' W.S. 35-11-103(e)(xxx) and the rules at

chapter I, sections 2(ax) and (w), definitions for ``important

habitat'' and ``crucial habitat;'' W.S. 35-11-402(b), reclamation

standards for fish and wildlife habitat and grazingland; W.S. 35-11-

402(c), establishment of shrubs on grazingland; rules at chapter I,

section 2(ac), chapter IV, section 2(d)(x)(E)(I) and (II), and appendix

A, definition for ``eligible land'' and reclamation success standards

for shrub density; rule at chapter I, section 2(bc)(iii), definition

for ``grazingland;'' rule at chapter I, section 2(bc)(viii), land use

definition for ``fish and wildlife habitat;'' rule at chapter I,

section 2(bc)(xi), definition for ``treated grazingland;'' rule at

chapter XI, section 5(a), substitution of a surety bond for a self-

bond; rule at chapter XIII, section 3(a) notice and opportunity for

public hearing on permit revision; rule at chapter XVII, section 1(a),

lands unsuitable for mining and definition for ``fragile lands;'' the

rules at chapter II, section 2(b)(iv)(C), and chapter IV, section

2(d)(x)(E)(III), establishment of reclamation standards for fish and

wildlife habitat and grazingland; rule at chapter II, section

2(a)(vi)(G)(II), consultation by the Wyoming Land Quality Division on

critical habitat; and rule at chapter X, section 4(e), disturbance of

important habitat by exploration operations.

3. Section 950.16 is amended by removing and reserving paragraphs

(q) and (bb) through (hh) and adding paragraphs (ii) though (ll) to

read as follows:

Sec. 950.16 Required program amendments.

* * * * *

(ii) By May 30, 1997, Wyoming shall

(1) Revise the rules at chapter II, section 2(b)(iv)(C), and

chapter IV, section 2(d)(x)(E)(III), to be consistent with the statute

at W.S. 35-11-402(b)(ii) by requiring Wyoming Game and Fish Department

approval of revegetation standards for grazingland that was designated

by the Wyoming Game and Fish Department as crucial habitat prior to

submittal of the initial permit application or any subsequent

amendments to the permit application; or revise the statute at W.S. 35-

11-402(b)(ii) to be consistent with the rules at chapter II, section

2(b)(iv)(C), and chapter IV, section 2(d)(x)(E)(III) by deleting the

phrase ``prior to submittal of the initial permit application or any

subsequent amendments to the permit application;'' and

(2) Revise the rules at chapter II, section 2(b)(iv)(C), and

chapter IV, section 2(d)(x)(E)(III), to require consultation with and

approval by the Wyoming Game and Fish Department of tree and shrub

standards for all lands to be reclaimed for the ``fish and wildlife

habitat'' land use.

(jj) By May 30, 1997, Wyoming shall revise the definition for

``treated grazingland'' at chapter I, section 2(bc)(xi), otherwise

revise its rules, or provide OSM with a policy statement, clarifying

the shrub standard for grazingland that is affected after the date of

OSM's approval and that was treated less than 5 years prior to the

submission of the permit application.

(kk) By May 30, 1997, Wyoming shall revise the rule at chapter II,

section 2(a)(vi)(G)(II), or otherwise modify its program, to require

consultation with the U.S. Fish and Wildlife Service on critical

habitat.

(ll) By May 30, 1997, Wyoming shall revise the rule at chapter X,

section 4(e), or otherwise modify its program, to prohibit the

disturbance of important habitat by coal exploration operations.

[FR Doc. 96-19735 Filed 8-5-96; 8:45 am]

BILLING CODE 4310-05-M