# Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-29150 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 12, 2008 - **Citation:** 73 FR 75814 ## Text DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Parts 780, 784, 816, and 817 [Docket ID No.: OSM-2007-0007] RIN 1029-AC04 Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Final rule. SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are amending our regulations concerning stream buffer zones, stream-channel diversions, siltation structures, impoundments, excess spoil, and coal mine waste. Among other things, this rule requires that surface coal mining operations be designed to minimize the creation of excess spoil and the adverse environmental impacts of fills constructed to dispose of excess spoil and coal mine waste. We have revised the stream buffer zone rule to more closely reflect the underlying provisions of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), to adopt related permit application requirements, to require that disturbance of perennial and intermittent streams and their buffer zones generally be avoided unless it is not reasonably possible to do so, to identify exceptions to the requirement to maintain an undisturbed buffer zone for perennial and intermittent streams, and to clarify the relationship between SMCRA and the Clean Water Act. DATES: This rule is effective January 12, 2009. The incorporation by reference of the publication listed in the rule is approved by the Director of the Federal Register as of January 12, 2009. FOR FURTHER INFORMATION CONTACT: Dennis G. Rice, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington, DC 20240. Telephone: 202-208-2829. You can find additional information concerning OSM, this rule, and related documents on OSM's home page on the Internet at http://www.osmre.gov . SUPPLEMENTARY INFORMATION: Table of Contents I. What does SMCRA say about surface coal mining operations in or near streams? II. What provisions of SMCRA form the basis for our stream buffer zone rules? III. What is the history of our stream buffer zone rules? A. Legislative History of SMCRA B. Initial Regulatory Program C. Permanent Regulatory Program (1979 Rules) D. Permanent Regulatory Program Revisions (1983 Rules) E. How has the 1983 stream buffer zone rule been applied and interpreted? F. What rulemaking actions have we proposed to clarify the 1983 rule? IV. What is the relationship between SMCRA and the Clean Water Act with respect to this rule? V. How did we obtain public input? VI. What general comments did we receive on the proposed rule? A. We Should Discourage the Mining and Use of Coal as a Power Source Because of the Role That the Combustion of Coal Plays in Climate Change B. We Should Withdraw the Proposed Rule and Enforce the 1983 Stream Buffer Zone, the Meaning of Which Is Clear as Written C. We Should Not Adopt Any Rule That Facilitates Mountaintop Mining Operations or the Filling of Streams D. We Should Ensure the Protection of Headwater Streams by Requiring Maintenance of an Undisturbed Buffer Between Mining Activities and Streams E. We Have Not Accorded Sufficient Importance to the Environmental Protection Purposes of SMCRA F. EPA Cannot Legally Concur With the Revised Stream Buffer Zone Rules Because They Violate the Clean Water Act G. The Applicability of the Final Rules Should Be Limited to Steep-Slope Areas and Mountaintop Removal Operations H. The Stream Buffer Zone Rule Is Unnecessary and Should Be Removed in Its Entirety VII. Why did we decide against applying the stream buffer zone rule to all waters of the United States (WOTUS)? VIII. Section-by-section analysis: How are we revising our rules? A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans B. Sections 780.25 and 784.16: Reclamation Plan: Siltation Structures, Impoundments, Refuse Piles, and Coal Mine Waste Impounding Structures C. Sections 780.28 and 784.28: Activities in or Adjacent to Perennial or Intermittent Streams D. Section 780.35: Disposal of Excess Spoil (Surface Mines) E. Section 784.19: Disposal of Excess Spoil (Underground Mines) F. Sections 816.11 and 817.11: Signs and Markers G. Sections 816.43 and 817.43: Diversions H. Sections 816.46 and 817.46: Siltation Structures I. Sections 816.57 and 817.57: Activities in or Adjacent to Perennial or Intermittent Streams J. Sections 816.71 and 817.71: General Requirements for Disposal of Excess Spoil K. What Does the Phrase “to the extent possible” mean in these rules? L. What does the phrase “best technology currently available” mean in these rules? IX. Procedural Matters and Required Determinations I. What does SMCRA say about surface coal mining operations in or near streams? SMCRA contains three references to streams, two references to watercourses, and several provisions that indirectly refer to activities in or near streams. Section 507(b)(10) 1 requires that permit applications include “the name of the watershed and location of the surface stream or tributary into which surface and pit drainage will be discharged.” However, this provision has no relevance to mining-related activities in or near streams or to the existing or proposed buffer zone rules. 1 30 U.S.C. 1257(b)(10). SMCRA, Pub. L. 95-87, is codified at 30 U.S.C. 1201-1328. Thus, for example, SMCRA section 102 is codified at 30 U.S.C. 1202, SMCRA section 515 is codified at 30 U.S.C. 1265, and SMCRA section 516 is codified at 30 U.S.C. 1266. Section 515(b)(18) requires that surface coal mining and reclamation operations “refrain from the construction of roads or other access ways up a stream bed or drainage channel or in such proximity to such channel so as to seriously alter the normal flow of water.” Section 516(c) requires the regulatory authority to suspend underground coal mining under permanent streams if an imminent danger to inhabitants exists. However, this provision is not relevant to a discussion of the stream buffer zone rules because, in response to litigation concerning the 1983 version of 30 CFR 817.57, we stipulated that “this regulation is directed only to disturbance of surface lands by surface activities associated with underground mining.” In re: Permanent Surface Mining Regulation Litigation II-Round II, 21 ERC 1725, 1741, footnote 21 (D.D.C. 1984). Section 515(b)(22)(D) provides that sites selected for the disposal of excess spoil must “not contain springs, natural water courses or wet weather seeps unless lateral drains are constructed from the wet areas to the main underdrains in such a manner that filtration of the water into the spoil pile will be prevented.” In adopting this provision, Congress could have chosen to exclude perennial and intermittent streams (or other waters) from the scope of “natural water courses,” but it did not do so. In addition, the fact that this provision of the Act authorizes disposal of excess spoil in areas containing natural watercourses, springs, and seeps further suggests that Congress did not intend to prohibit placement of excess spoil in perennial or intermittent streams. The term “natural watercourses” includes all types of streams—perennial, intermittent, and ephemeral. Springs and seeps are groundwater discharges. To the extent that those discharges provide intermittent or continuous flow in a channel, they are included within the scope of our definitions in 30 CFR 701.5 of “intermittent stream” and “perennial stream,” respectively. The definition of “intermittent stream,” which is based upon technical literature, includes any “stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.” Furthermore, in litigation under the Clean Water Act, the U.S. Court of Appeals for the Fourth Circuit cited section 515(b)(22) of SMCRA as supporting the statement in its decision that “it is beyond dispute that SMCRA recognized the possibility of placing excess spoil material in waters of the United States even though those materials do not have a beneficial purpose.” See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003). Section 515(c)(4)(D) provides that, in approving a permit application for a mountaintop removal operation, the regulatory authority must require that “no damage will be done to natural watercourses.” The regulations implementing this provision clarify that the prohibition applies only to natural watercourses “below the lowest coal seam mined.” See 30 CFR 824.11(a)(9). Furthermore, section 515(c)(4)(E) of the Act specifies that “all excess spoil material not retained on the mountaintop shall be placed in accordance with the provisions of subsection (b)(22) of this section.” By including this proviso, Congress recognized that not all excess spoil generated by mountaintop removal operations could be retained on benches or placed within the mined-out area. And by cross-referencing section 515(b)(22), Congress authorized placement of excess spoil from mountaintop removal operations in natural watercourses, provided all requirements of section 515(b)(22) are met. In the steep-slope terrain of central Appalachia, excess spoil typically can most feasibly be placed in valley fills. In addition, the legislative history of section 515(f) of SMCRA indicates that Congress anticipated that coal mine waste impoundments would be constructed in perennial and intermittent streams: In order to assure that mine waste impoundments used for the disposal of liquid or solid waste material from coal mines are constructed or have been constructed so as to safeguard the health and welfare of downstream populations, H.R. 2 gives the Army Corps of Engineers a role in determining the standards for construction, modification and abandonment of these impoundments. Thus, the corps' experience and expertise in the area of design, construction, maintenance, et cetera, which were utilized for carrying out the congressionally authorized surveys of mine waste embankments in West Virginia following the disastrous failure of the mine waste impoundments on Buffalo Creek, is to be applied in order to prevent similar accidents in the future. H. Rep. No. 95-218; at 125 (April 22, 1977) (emphasis added). Section 515(f) provides that— The Secretary, with the written concurrence of the Chief of Engineers, shall establish within one hundred and thirty-five days from the date of enactment, standards and criteria regulating the design, location, construction, operation, maintenance, enlargement, modification, removal, and abandonment of new and existing coal mine waste piles referred to in section 515(b)(13) and section 516(b)(5). Sections 515(b)(13) and 516(b)(5) concern “all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, or other liquid and solid wastes and used either temporarily or permanently as dams or embankments.” (Emphasis added.) Sections 515(f), 515(b)(13), and 516(b)(5) do not specifically mention streams or watercourses. However, the reference to dams and embankments, the requirement for the concurrence of the U.S. Army Corps of Engineers (for its expertise in dam construction and flood control), and the legislative history documenting that the 1972 Buffalo Creek flood was the driving force behind adoption of those SMCRA provisions demonstrate that Congress was aware that coal mine waste impoundments had been constructed in perennial and intermittent streams in the past and would be constructed there in the future. Furthermore, the fact that all three paragraphs specifically apply to both new and existing structures (rather than to just existing structures) implies that new structures would and could be built in streams under SMCRA. As mentioned in the legislative history, Congress' intent was to prevent a recurrence of the Buffalo Creek impoundment failure and to ensure that all coal mine waste impoundments either are or have been constructed in a manner that protects the safety of downstream residents. There is no indication that Congress intended to prohibit construction of those structures in perennial or intermittent streams. Finally, sections 515(b)(11) and 516(b)(4) of the Act govern the construction of coal refuse piles that are not used as dams or embankments. While those paragraphs do not mention constructing refuse piles in watercourses, neither do they prohibit such construction. Because of the similarity of those piles to excess spoil fills, the regulations implementing sections 515(b)(11) and 516(b)(4) incorporate language similar to that of section 515(b)(22)(D) for the construction of excess spoil disposal facilities. Specifically, the regulations at 30 CFR 816.83(a)(1) and 817.83(a)(1) allow the construction of non-impounding coal refuse piles on areas containing springs, natural or man-made watercourses, or wet-weather seeps if the design includes diversions and underdrains. Not all areas containing springs, watercourses, or wet-weather seeps are perennial or intermittent streams, but some are, which means that refuse piles may be constructed in streams. II. What provisions of SMCRA form the basis for our stream buffer zone rules? Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA served as the basis for all three previous versions (1977, 1979, and 1983) of the stream buffer zone rule with respect to surface mining activities. Those sections also serve as the basis for the revised rule at 30 CFR 816.57 that we are adopting today. Section 515(b)(10)(B)(i) requires that surface coal mining operations be conducted so as to prevent the contribution of additional suspended solids to streamflow or runoff outside the permit area to the extent possible using the best technology currently available. Section 515(b)(24) requires that surface coal mining and reclamation operations be conducted to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values “to the extent possible using the best technology currently available.” In context, section 515(b)(10)(B)(i) provides that the performance standards adopted under SMCRA must require that surface coal mining and reclamation operations— (10) minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by— (A) * * * (B)(i) conducting surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable State or Federal law. Section 515(b)(24) requires that surface coal mining and reclamation operations be conducted in a manner that— To the extent possible using the best technology currently available, minimize[s] disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve[s] enhancement of such resources where practicable. The common thread in both provisions is the requirement for use of the best technology currently available to achieve the requirements of those provisions to the extent possible. Paragraphs (b)(9)(B) and (11) of section 516 of SMCRA form the basis for the stream buffer zone rule at 30 CFR 817.57, which applies to surface activities associated with underground mines. Those provisions of section 516 are substantively equivalent to paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA, respectively, except that section 516(b)(9)(B) also includes the provisions found in section 515(b)(10)(E) regarding the avoidance of channel deepening or enlargement. In the remainder of this preamble, we often refer only to the section 515 paragraphs, with the understanding that, unless otherwise stated or implied by context, references to those paragraphs should be read as including their section 516 counterparts. III. What is the history of our stream buffer zone rules? A. Legislative History of SMCRA SMCRA does not establish or require a buffer zone for streams or other waters. In 1972, the U.S. House of Representatives passed a bill (H.R. 6482) that included a flat prohibition on mining within 100 feet of any “body of water, stream, pond, or lake to which the public enjoys use and access, or other private property.” This prohibition appeared in the counterpart to what is now section 522(e) of the Act. However, the bill never became law and the provision did not appear in subsequent versions of SMCRA legislation. B. Initial Regulatory Program As part of the regulations implementing the initial regulatory program under SMCRA, we adopted the concept of a 100-foot buffer zone around intermittent and perennial streams as a means “to protect stream channels from abnormal erosion” from nearby upslope mining activities. See 30 CFR 715.17(d)(3) and 42 FR 62652 (December 13, 1977). The regulation reads as follows: No land within 100 feet of an intermittent or perennial stream shall be disturbed by surface coal mining and reclamation operations unless the regulatory authority specifically authorizes surface coal mining and reclamation operations through such a stream. The area not to be disturbed shall be designated a buffer zone and marked as specified in § 715.12. The rule does not specify the conditions under which the regulatory authority may authorize operations within the buffer zone. C. Permanent Regulatory Program (1979 Rules) The original version of our permanent program regulations, as published on March 13, 1979, included more extensive stream buffer zone rules at 30 CFR 816.57 (for surface mining operations) and 817.57 (for underground mining operations). Specifically, the 1979 version of section 816.57 provided that no land within 100 feet of a perennial stream or a stream with a biological community shall be disturbed by surface mining activities, except in accordance with §§ 816.43-816.44 [the stream diversion regulations], unless the regulatory authority specifically authorizes surface mining activities closer to or through such a stream upon finding that the original stream channel will be restored; and during and after the mining, the water quantity and quality from the stream section within 100 feet of the surface mining activities shall not be adversely affected. Paragraph (c) of the 1979 rule provided that a biological community existed if the stream at any time contained an assemblage of two or more species of arthropods or molluscan animals that were adapted to flowing water for all or part of their life cycle, dependent upon a flowing water habitat, reproducing or could reasonably be expected to reproduce in the water body where they are found, and longer than 2 millimeters at some stage of the part of their life cycle spent in the flowing water habitat. The counterpart regulation for underground mining at 30 CFR 817.57 was identical except that it substituted the term “surface operations and facilities” for “surface mining activities” and clearly indicated that the restrictions were limited to “surface areas.” The preamble to the 1979 rules explains that the purpose of the revised rules was to implement paragraphs (b)(10) and (b)(24) of section 515 of the Act. 44 FR 15176, March 13, 1979. It states that “[b]uffer zones are required to protect streams from the adverse effects of sedimentation and from gross disturbance of stream channels,” but that “if operations can be conducted within 100 feet of a stream in an environmentally acceptable manner, they may be approved.” Id. In addition, it states that “[t]he 100-foot limit is based on typical distances that should be maintained to protect stream channels from sedimentation,” but that, while the 100-foot standard provides a simple rule for enforcement purposes, “site-specific variation should be made available when the regulatory authority has an objective basis for either increasing or decreasing the width of the buffer zone.” Id. D. Permanent Regulatory Program Revisions (1983 Rules) In 1983, we revised the stream buffer zone rules to delete the requirement that the original stream channel be restored, to replace the biological community criterion for determining which non-perennial streams must be protected under the rule with a requirement for protection of all intermittent streams, and to add a requirement for a finding that the proposed mining activities will not cause or contribute to a violation of applicable state or federal water quality standards and will not adversely affect the environmental resources of the stream. See 48 FR 30312, June 30, 1983. In 1983, we also adopted revised performance standards for coal preparation plants not located within the permit area of a mine. We decided not to apply the stream buffer zone rule to those preparation plants. See 30 CFR 827.12 and the preamble to those rules at 48 FR 20399, May 5, 1983. The preamble to the 1983 stream buffer zone rules reiterates the general rationale for adoption of a stream buffer zone rule that we specified in the preamble to the 1979 rules. It identifies the reason for replacing the biological community threshold with the intermittent stream threshold as a matter of improving the ease of administration and eliminating the possibility of applying the rule to ephemeral streams and other relatively insignificant water bodies: The biological-community standard was confusing to apply since there are areas with ephemeral surface waters of little biological or hydrologic significance which, at some time of the year, contain a biological community as defined by previous § 816.57(c). Thus, much confusion arose when operators attempted to apply the previous rule's standards to springs, seeps, ponding areas, and ephemeral streams. While some small biological communities which contribute to the overall production of downstream ecosystems will be excluded from special buffer-zone protection under final § 816.57(a), the purposes of Section 515(b)(24) of the Act will best be achieved by providing a buffer zone for those streams with more significant environmental-resource values. 48 FR 30313, June 30 1983. The preamble further states that “[i]t is impossible to conduct surface mining without disturbing a number of minor natural streams, including some which contain biota” and that “surface coal mining operations will be permissible as long as environmental protection will be afforded to those streams with more significant environmental-resource value.” Id. It further provides that the revised rules “also recognize that intermittent and perennial streams generally have environmental-resource values worthy of protection under Section 515(b)(24) of the Act.” Id. at 30312. In addition, the preamble notes that “[a]lthough final § 816.57 is intended to protect significant biological values in streams, the primary objective of the rule is to provide protection for the hydrologic balance and related environmental values of perennial and intermittent streams.” Id. at 30313. It further states that “[t]he 100-foot limit is used to protect streams from sedimentation and help preserve riparian vegetation and aquatic habitats.” Id. at 30314. We also stated that we removed the requirement to restore the original stream channel in deference to the stream-channel diversion requirements of 30 CFR 816.43 and 817.43 and to clarify that there does not have to be a stream diversion for mining to occur inside the buffer zone. Id. Finally, the preamble states that we added the finding concerning “other environmental resources of the stream” to clarify “that regulatory authorities will be allowed to consider factors other than water quantity and quality in making buffer-zone determinations” and “to provide a more accurate reflection of the objectives of Sections 515(b)(10) and 515(b)(24) of the Act.” Id. at 30316. Revised 30 CFR 816.57(a) (1983) provided that “[n]o land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream.” The rule further provided that the regulatory authority may authorize such activities only upon finding that surface mining activities will not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream; and if there will be a temporary or permanent stream-channel diversion, it will comply with § 816.43. The 1983 version of the stream buffer zone rule for underground mining at 30 CFR 817.57 is identical except for substitution of the term “underground mining activities” for “surface mining activities.” The National Wildlife Federation challenged this regulation as being inconsistent with sections 515(b)(10) and (24) of the Act, primarily because it deleted the biological community threshold for stream protection. However, the court rejected that challenge, finding without elaboration that the “regulation is not in conflict with either section 515(b)(10) or 515(b)(24).” In re: Permanent Surface Mining Regulation Litigation II—Round II , 21 ERC 1725, 1741-1742 (D.D.C. 1984). The court also noted that the Secretary had properly justified the rule change on the grounds that the previous rule was confusing and difficult to apply without protecting areas of little biological significance. Unfortunately, the new criterion (intermittent streams) has proven as difficult to apply as the biological community standard that it replaced. The definition of “intermittent stream” in 30 CFR 701.5 has two parts, separated by an “or.” The first part defines all streams with a drainage area of one square mile as intermittent. This part of the definition is the aspect that was litigated and upheld for its clarity of application. However, the second part of the definition includes all streams and stream segments that are below the local water table for part of the year and that derive at least part of their flow from groundwater discharge. This part of the definition has been more difficult to apply in practice. In fact, some States use biological criteria for making that determination. Industry also challenged 30 CFR 817.57(a) to the extent that it included all underground mining activities. However, industry withdrew its challenge when the Secretary stipulated that the rule would apply only to surface lands and surface activities associated with underground mining. See footnote 21, id. at 1741. E. How has the 1983 stream buffer zone rule been applied and interpreted? Historically, we and the State regulatory authorities have applied the 1983 stream buffer zone rule in a manner that allowed the placement of excess spoil fills, refuse piles, slurry impoundments, and sedimentation ponds in intermittent and perennial streams. However, as discussed at length in the preamble to the January 7, 2004 proposed rule (69 FR 1038-1042), which we never finalized, there has been considerable controversy over the proper interpretation of both the Clean Water Act and our 1983 rules as they apply to the placement of fill material in or near perennial and intermittent streams. As evidenced by past litigation and the comments that we received on the proposed rule that we published on August 24, 2007, some interpretations of our 1983 rule are at odds with the underlying provisions of SMCRA. We first placed our interpretation of the 1983 stream buffer zone rules in writing in a document entitled “Summary Report—West Virginia Permit Review—Vandalia Resources, Inc. Permit No. S-2007-98.” According to our annual oversight reports for West Virginia for 1999 and 2000, that document stated that the stream buffer zone rule does not apply to the footprint of a fill placed in a perennial or intermittent stream as part of a surface coal mining operation. On June 4, 1999, in West Virginia Highlands Conservancy v. Babbitt , Civ. No. 1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that document, alleging that it constituted rulemaking in violation of the Administrative Procedure Act. In an order filed September 23, 1999, the court approved an unopposed motion to dismiss the case as moot. In a lawsuit filed in the U.S. District Court for the Southern District of West Virginia in July 1998, plaintiffs asserted that the stream buffer zone rule allows mining activities through or within the buffer zone for a perennial or intermittent stream only if the activities are minor incursions. They argued that the rule did not allow substantial segments of the stream to be buried underneath excess spoil fills or other mining-related structures. On October 20, 1999, the district court ruled in favor of the plaintiffs on this point, holding that the stream buffer zone rule applies to all segments of a stream, including those segments within the footprint of an excess spoil fill, not just to the stream as a whole. The court also stated that the construction of fills in perennial or intermittent streams is inconsistent with the language of 30 CFR 816.57(a)(1), which provides that the regulatory authority may authorize surface mining activities within a stream buffer zone only after finding that the proposed activities “will not adversely affect the water quantity and quality or other environmental resources of the stream.” See Bragg v. Robertson , 72 F. Supp. 2d 642, 660-663 (S.D. W. Va., 1999). The U.S. Court of Appeals for the Fourth Circuit ultimately reversed the district court on other grounds (lack of jurisdiction under the Eleventh Amendment to the U.S. Constitution) without reaching the merits of the district court's holding on the applicability of the stream buffer zone rule. Bragg v. West Virginia Coal Association , 248 F.3d 275, 296 (4th Cir. 2001), cert. denied , 534 U.S. 1113 (2002). In a different case, the same district court stated that SMCRA and the stream buffer zone rule do not authorize disposal of overburden in streams: “SMCRA contains no provision authorizing disposal of overburden waste in streams, a conclusion further supported by the buffer zone rule.” Kentuckians for the Commonwealth, Inc. v. Rivenburgh , 204 F. Supp. 2d 927, 942 (S.D. W. Va. 2002). The U.S. Court of Appeals for the Fourth Circuit subsequently rejected the district court's interpretation, stating that “SMCRA does not prohibit the discharge of surface coal mining excess spoil in waters of the United States.” Kentuckians for the Commonwealth, Inc. v. Rivenburgh , 317 F.3d 425, 442 (4th Cir. 2003). The court further stated that “it is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States even though those materials do not have a beneficial purpose.” Id. at 443. The court explained the basis for its statements as follows: Section 515(b)(22)(D) of SMCRA authorizes mine operators to place excess spoil material in “springs, natural water courses or wet weather seeps” so long as “lateral drains are constructed from the wet areas to the main underdrains in such a manner that filtration of the water into the spoil pile will be prevented.” 30 U.S.C. § 1265(b)(22)(D). In addition, § 515(b)(24) requires surface mine operators to “minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable,” implying the placement of fill in the waters of the United States. 30 U.S.C. § 1265(b)(24). It is apparent that SMCRA anticipates the possibility that excess spoil material could and would be placed in waters of the United States, and this fact cannot be juxtaposed with § 404 of the Clean Water Act to provide a clear intent to limit the term “fill material” to material deposited for a beneficial primary purpose. Id. at 443. The preamble to the proposed rule that we published on January 7, 2004, but which we never adopted in final form, contains additional discussion of litigation and related matters arising from the 1983 stream buffer zone rules. See especially Part I.B.1. at 69 FR 1038-1040. F. What rulemaking actions have we proposed to clarify the 1983 rule? On January 7, 2004 (69 FR 1036), we proposed to revise our stream buffer zone rules to retain the prohibition on disturbance of land within 100 feet of a perennial or intermittent stream, but alter the findings that the regulatory authority must make before granting a variance to this requirement. The revised rule would have replaced the Clean Water Act-oriented findings in the 1983 rule with a SMCRA-based requirement that the regulatory authority find in writing that the activities will, to the extent possible, use the best technology currently available to prevent additional contributions of suspended solids to the section of stream within 100 feet downstream of the mining activities and outside the area affected by mining activities; and minimize disturbances and adverse impacts on fish, wildlife, and other related environmental values of the stream. The proposed rule also would have required that operations be designed to minimize the creation of excess spoil. Numerous commenters asked us to consider other alternatives to the proposed rule. Some commenters also asked that we prepare an environmental impact statement (EIS) on the proposed action. On June 16, 2005 (70 FR 35112), we announced our intent to prepare an EIS on the proposed rule changes. We also stated that we intended to consider additional alternatives and to publish a new proposed rule to coincide with the release of a draft EIS. On August 24, 2007 (72 FR 48890), we published a new, extensively revised proposed rule and a notice of availability of the draft EIS. That proposed rule replaced the one we published on January 7, 2004. The August 24, 2007, proposed rule forms the basis for the final rule that we are adopting today. This final rule is intended to clarify the scope and meaning of the stream buffer zone rule, consistent with underlying statutory authority, and to ensure that regulatory authorities, mine operators, other governmental entities, landowners, and citizens all can have a common understanding of what the stream buffer zone rule does and does not require. The final rule also includes additional permitting requirements intended to ensure that operations are designed to minimize the creation of excess spoil and to require consideration of alternatives to the disposal of excess spoil and coal mine waste in perennial or intermittent streams or their buffer zones to minimize the adverse impacts on fish, wildlife, and related environmental values to the extent possible using the best technology currently available. The revised stream buffer zone rule that we are adopting today attempts to minimize disputes and misunderstandings associated with application of the 1983 rule. The revised rule distinguishes between those situations in which maintenance of an undisturbed buffer between mining and reclamation activities and a perennial or intermittent stream constitutes the best technology currently available to implement the underlying statutory provisions (sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B) and (11) of SMCRA) and those situations in which maintenance of a buffer is neither feasible nor appropriate. IV. What is the relationship between SMCRA and the Clean Water Act with respect to this rule? In this final rule, we are adding paragraph (f) of sections 780.28 and 784.28 and paragraph (d) of sections 816.57 and 817.57 to clarify the relationship between SMCRA and the Clean Water Act with respect to activities conducted in or near perennial and intermittent streams. We are adopting these paragraphs to address concerns arising from the fact that this final rule removes language that previously appeared in sections 816.57(a) and 817.57(a) that specifically prohibited the conduct of mining activities within 100 feet of a perennial or intermittent stream unless the regulatory authority found that those activities would not cause or contribute to the violation of applicable State or Federal water quality standards and would not adversely affect the water quantity and quality or other environmental resources of the stream. We are removing that requirement because its language more closely resembles the Clean Water Act than the underlying provisions of SMCRA. See Parts II, VIII.C., and VIII.I. of this preamble for further discussion of sections 780.28, 784.28, 816.57, and 817.57 and the provisions of SMCRA that provide the basis for the stream buffer zone rule. None of the revisions to the stream buffer zone rule or other elements of this final rule affect a mine operator's responsibility to comply with effluent limitations or other requirements of the Clean Water Act. The requirements of the Clean Water Act have independent force and effect regardless of the terms of the SMCRA permit. The independent effect of the Clean Water Act is recognized in section 702(a) of SMCRA, which provides that— Nothing in this Act shall be construed as superseding, amending, modifying, or repealing the * * * [t]he Federal Water Pollution Control Act [Clean Water Act] [ citations omitted ], the State laws enacted pursuant thereto, or other Federal laws relating to the preservation of water quality. 30 U.S.C. 1292(a). In interpreting this statutory provision with respect to effluent limitations adopted as part of our initial regulatory program, the U.S. Court of Appeals for the D.C. Circuit held that “where the Secretary's regulation of surface coal mining's hydrologic impact overlaps EPA's, the Act expressly directs that the Federal Water Pollution Control Act and its regulatory framework are to control so as to afford consistent effluent standards nationwide.” In re Surface Mining Regulation Litigation , 627 F.2d 1346, 1367 (D.C. Cir. 1980). In today's final rule, we are adding paragraph (f)(2) of sections 780.28 and 784.28 and paragraph (d) of sections 816.57 and 817.57(d) to reiterate and further clarify this relationship between SMCRA and the Clean Water Act. The new rules emphasize that issuance of a SMCRA permit is not a substitute for the reviews, authorizations, and certifications required under the Clean Water Act and does not authorize initiation of surface coal mining operations for which the applicant has not obtained all necessary authorizations, certifications, and permits under the Clean Water Act. Consistent with the approach described above, our existing regulations at 30 CFR 816.42 and 817.42 provide that discharges of water from areas disturbed by surface or underground mining activities shall be made in compliance with all applicable State and Federal water quality laws and regulations and with the effluent limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in 40 CFR part 434. Nothing in the final rule that we are adopting today would alter or affect the requirements of 30 CFR 816.42 or 817.42. SMCRA and the Clean Water Act provide for separate regulatory programs with different purposes and very different permitting requirements and procedures. In addition, SMCRA and the Clean Water Act differ considerably with respect to jurisdiction. For example, unlike SMCRA, the Clean Water Act does not directly regulate groundwater. The Clean Water Act focuses primarily on regulating discharges of pollutants into waters of the United States, whereas SMCRA regulates a broad universe of environmental and other impacts of surface coal mining and reclamation operations. As stated in the legislative history of SMCRA: Statutory authority to regulate the adverse environmental effects of surface and underground coal mining under the Federal Water Pollution Control Act [Clean Water Act], as amended, is limited to the treatment or removal of any pollutants into the waters of the United States. * * * The Federal Water Pollution Control Act, as amended, can deal only with a part of the problem. The FWPCA does not contain the statutory authority for the establishment of standards and regulations requiring comprehensive preplanning and designing for appropriate mine operating and reclamation procedures to ensure protection of public health and safety and to prevent the variety of other damages to the land, the soil, the wildlife, and the aesthetic and recreational values that can result from coal mining. The statute also lacks the regulatory authority to deal with the discharge of pollutants from abandoned surface and underground coal mines. H. Rep. No. 94-1445 at 90-91 (1976), emphasis in original. Section 508(a)(9) of SMCRA requires that each permit application include “the steps to be taken to comply with applicable air and water quality laws and regulations and any applicable health and safety standards.” Our regulations at 30 CFR 780.18(b)(9) and 784.13(b)(9) similarly require that each permit application include: A description of steps to be taken to comply with the requirements of the Clean Air Act (42 U.S.C. 7401 et seq. ), and the Clean Water Act (33 U.S.C. 1251 et seq. ), and other applicable air and water quality laws and regulations and health and safety standards. In keeping with section 508(a)(9) of SMCRA, today's rule also includes new provisions in paragraph (f)(1) of sections 780.28 and 784.28 reiterating that every permit application must identify the authorizations that the applicant anticipates will be needed under sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps that the permit applicant has taken or will take to procure those authorizations. The Clean Water Act establishes a comprehensive program designed to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). To achieve this goal, it prohibits the discharge of pollutants into navigable waters except as in compliance with specified provisions of the Clean Water Act, including a provision that allows for discharges authorized by a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. 1311(a) and 1342(a). At 33 U.S.C. 1362(7), the Clean Water Act defines “navigable waters” as “waters of the United States,” a term which the Corps and EPA define at 33 CFR 328.3 and 40 CFR 232.2, respectively. The proper scope of that definition has been extensively litigated and EPA and the Corps have issued supplemental guidance to reflect the outcome of that litigation. The Clean Water Act authorizes the discharge of pollutants into waters of the United States under two different permit programs. Section 404 authorizes discharges of dredged or fill material, while section 402 applies to all other pollutants. 33 U.S.C. 1344, 1342. Section 404 is primarily administered by the Corps, with the exception of those States and Indian tribes that have assumed the program pursuant to section 404(g). In both cases, EPA provides input and has oversight authority and responsibilities. Section 402 (NPDES) permits are issued by EPA or states and Indian tribes that EPA has authorized to administer the NPDES program under section 402(b). Section 401 of the Clean Water Act requires that each applicant for a federal license or permit submit a certification from the state in which the discharge originates. The certification must state that the discharge will comply with federal and state water quality requirements. 33 U.S.C. 1341(a)(1). “No license or permit shall be granted until the certification required by this section has been obtained or has been waived” and “[n]o license or permit shall be granted if certification has been denied by the State.” Id. Section 401(d) further provides that the state certifications “shall become a condition on any Federal license or permit subject to the provisions of this section.” Id. at 1341(d). Section 402 of the Clean Water Act governs discharges of pollutants other than dredged or fill material. 33 U.S.C. 1342. Permits issued under this section are known as NPDES permits. They typically contain technology-based numerical standards called effluent limitations that restrict the amount of specified pollutants that may be discharged. 33 U.S.C. 1311, 1362(11). EPA has developed industry-wide technology-based wastewater effluent limitations for surface coal mining and reclamation operations. Those effluent limitations are codified in 40 CFR part 434. NPDES permits also must include any more stringent limitations necessary to meet state water quality standards. 33 U.S.C. 1311(b)(1)(C), 1342(a). EPA may authorize states to issue NPDES permits, but EPA retains authority to enforce the requirements of the Clean Water Act. Section 404 of the Clean Water Act authorizes the Secretary of the Army, through the Corps, to regulate discharges of dredged and fill material through a permitting process. 33 U.S.C. 1344. On May 9, 2002 (67 FR 31129-31143), the Corps and EPA adopted a revised definition of “fill material” in 33 CFR 323.2(e) and 40 CFR 232.2, respectively, that includes “overburden from mining or other excavation activities.” In the same rulemaking, the Corps and EPA also adopted a revised definition of “discharge of fill material” in 33 CFR 323.2(f) and 40 CFR 232.2, respectively. The revised definition provides that “[t]he term generally includes, without limitation, the * * * placement of overburden, slurry, or tailings or similar mining-related materials.” Therefore, any mining overburden or coal mine waste used to replace any waters of the United States, or portion thereof, with dry land or to change the bottom elevation of any waters of the United States, or portion thereof, is classified as fill material for purposes of the Clean Water Act. To implement section 404, the Corps may issue either individual permits under 33 CFR parts 320 through 328 or general permits under 33 CFR part 330. See 33 U.S.C. 1344(a) and (e). Both individual and general permits must comply with guidelines issued by EPA under section 404(b)(1), 33 U.S.C. 1344(b)(1). Those guidelines, which are codified at 40 CFR part 230, are referred to as the “404(b)(1) Guidelines.” The 404(b)(1) Guidelines generally prohibit the permitting of projects where there “is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 CFR 230.10(a). Under 40 CFR 230.10(a)(2), “[a]n alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” The guidelines specify that the Corps must ensure that the proposed fill will not cause significantly adverse effects on human health or welfare, aquatic life, and aquatic ecosystems. 40 CFR 230.10(c)(1) through (c)(3). To comply with this requirement, the Corps must make a written determination of the effects of a proposed activity “on the physical, chemical, and biological components of the aquatic environment.” 40 CFR 230.11. See also 33 CFR 320.4(b)(4) and 325.2(a)(6) for requirements for individual permits. The 404(b)(1) Guidelines also provide that “no discharge of dredged or fill material shall be permitted unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.” 40 CFR 230.10(d). One way the Corps can reduce the potential adverse impacts associated with filling activity is to require compensatory mitigation. See 33 CFR 325.4(a)(3) and 320.4(r) for individual permits and General Condition 20 (72 FR 11193, March 12, 2007) for nationwide permits under 33 CFR part 330. This differs substantially from SMCRA, which provides no authority to require compensatory mitigation. Section 404(e) of the Clean Water Act authorizes the Corps to “issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary [of the Army] determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment,” provided the general permit is based upon the guidelines developed under section 404(b)(1) of the Clean Water Act. The Corps has exercised its authority under section 404(e) to issue general nationwide permits (NWPs) for surface coal mining operations under SMCRA (NWP 21), coal remining activities under SMCRA (NWP 49), and underground coal mining activities under SMCRA (NWP 50). Those permits apply only if the activities are authorized under a SMCRA permit or an application for the activities is being processed as part of an integrated permit processing procedure. See 72 FR 11092, 11184, and 11191, March 12, 2007. In issuing NWPs 21, 49, and 50, the Corps has determined that the activities covered by those permits are in compliance with the 404(b)(1) Guidelines. That is, the Corps has determined that these activities will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effects on the environment. As the Corps states in the preamble to the most recent version of its general permits— When we issue the NWPs, we fully comply with the requirements of the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of general permits under section 404. For the section 404 NWPs, each decision document contains a 404(b)(1) Guidelines analysis. Section 230.7(b) of the 404(b)(1) Guidelines requires only a “written evaluation of the potential individual and cumulative impacts of the categories of activities to be regulated under the general permit.” Since the required evaluation must be completed before the NWP is issued, the analysis is predictive in nature. The estimates of potential individual and cumulative impacts, as well as the projected compensatory mitigation that will be required, are based on the best available data from the Corps district offices, based on past use of NWPs. 72 FR 11094, March 12, 2007. In the preamble to NWP 21, the Corps states that “the analyses and environmental protection performance standards required by SMCRA, in conjunction with the pre-construction notification requirement, are generally sufficient to ensure that NWP 21 activities result in minimal individual and cumulative adverse impacts on the aquatic environment.” 72 FR 11114. The most critical element in the Corps' determination that NWP 21 meets the Clean Water Act requirements for general permits is the fact that NWP 21 requires a preconstruction notification from the applicant, followed by a review of the project by the Corps, and then a written determination from the Corps before the activities covered by NWP 21 may be initiated. As the Corps states in the preamble— We believe our process for NWP 21 ensures that activities authorized by the NWP result in no more than minimal adverse impacts to the aquatic environment because each project is reviewed on a case-by-case basis and the district engineer either makes a minimal impacts determination on the project or asserts discretionary authority and requires an individual permit. Also, because of the case-by-case review and the requirement for written verification, we do not agree that it is necessary to prohibit discharges of dredged or fill material into perennial streams. The pre-construction notification requirements of all NWPs allows for a case-by-case review of activities that have the potential to result in more than minimal adverse effects to the aquatic environment. If the adverse effects on the aquatic environment are more than minimal, then the district engineer can either add special conditions to the NWP authorization to ensure that the activity results in no more than minimal adverse environmental effects or exercise discretionary authority to require an individual permit. 72 FR 11114. Furthermore, at 72 FR 11117, the Corps states that— The Corps does not assume that other state or Federal agencies conduct a review that is comparable to the section 404(b)(1) Guidelines. Although analysis of offsite alternatives is not required in conjunction with general permits, each proposed project is evaluated for onsite avoidance and minimization, in accordance with general condition 20, and is not authorized under the NWP if the adverse impacts to waters of the United States are more than minimal. At 72 FR 11094, the Corps explains that— NWPs 21, 49, and 50 are a special case, in that they authorize activities for which review of environmental impacts, including impacts to aquatic resources, is separately required under other Federal authorities (e.g., Surface Mining Control and Reclamation Act (SMCRA) permits for coal mining activities). The Corps believes it would be unnecessarily duplicative to separately require the same substantive analyses through an individual permit application as are already required under SMCRA. However, through the pre-construction notification review process, the district engineer will consider the analyses prepared for the SMCRA permit and exercise discretionary authority to require an individual permit in cases where the district engineer determines, after considering avoidance and reclamation activities undertaken pursuant to SMCRA, that the residual adverse effects are not minimal. The project sponsor is required to obtain written verification prior to commencing work. Thus, the Corps uses SMCRA permit application data and analyses as a starting point to determine whether a proposed operation qualifies for authorization under NWP 21, but it does not rely upon that information exclusively. Nor does the Corps presume that issuance of a SMCRA permit is evidence of compliance with Clean Water Act requirements. See 72 FR 11115, which states that— The Corps understands coal mining is covered by many environmental regulations; however the Corps has determined that SMCRA, in its current form, does not remove the need, either legally or substantively, for independent authorization under Section 404 of the Clean Water Act. Consequently, this NWP does not duplicate the SMCRA permit process. The principles in the preceding discussion concerning NWP 21 also apply to NWPs 49 and 50. See 72 FR 11148-49 and 11151-52. The preamble to General Condition 27, which applies to NWPs 21, 49, and 50, describes the Corps' decisionmaking process as follows: In reviewing the PCN [preconstruction notification] for the proposed activity, the district engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest. * * * If the district engineer determines that the activity complies with the terms and conditions of the NWP and that the adverse effects on the aquatic environment are minimal, after considering mitigation, the district engineer will notify the permittee and include any conditions the district engineer deems necessary. The district engineer must approve any compensatory mitigation proposal before the permittee commences work. * * * If the district engineer determines that the adverse effects of the proposed work are more than minimal, then the district engineer will notify the applicant either: (1) That the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an individual permit; (2) that the project is authorized under the NWP subject to the applicant's submission of a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions. Where the district engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level. When mitigation is required, no work in waters of the United States may occur until the district engineer has approved a specific mitigation plan. 72 FR 11195-1196, March 12, 2007. The preamble also notes that, before beginning any activities covered by the preconstruction notification, the person submitting the notification must obtain a state water quality certification under section 401 of the Clean Water Act in those states that do not issue an unconditional certification for the nationwide permits. As the preceding discussion demonstrates, we believe that maintaining the distinction between the SMCRA and Clean Water Act regulatory programs is both administratively and legally appropriate. We do not believe the requirements of this final rule are duplicative of requirements under the Clean Water Act. However, consistent with section 713(a) of SMCRA, we encourage SMCRA regulatory authorities and the agencies administering the Clean Water Act to share permit application data and environmental analyses to streamline the permitting processes under SMCRA and the Clean Water Act. V. How did we obtain public input? We published the proposed rule on which this final rule is based on August 24, 2007, (72 FR 48890-48926). In response to requests from the public, we held public hearings on the proposed rule in Charleston, West Virginia; Hazard, Kentucky; Knoxville, Tennessee; and Washington, Pennsylvania on October 24, 2007. We also held public meetings in Big Stone Gap, Virginia on October 24, 2007, and in Alton, Illinois on November 1, 2007. In addition, we extended the comment period, which was originally scheduled to close October 23, 2007, until November 23, 2007. See 72 FR 57504, October 10, 2007. Approximately 750 persons attended the public hearings and meetings. Of the attendees, 212 provided testimony, with 21 supporting the proposed rule and the remainder opposed. In addition to the testimony offered at the hearings and meetings, we received more than 43,000 written or electronic comments on the proposed rule. In general, most commenters opposed the proposed rule, primarily because they viewed the rule as facilitating mountaintop mining and construction of excess spoil fills in streams. Commenters representing the coal industry generally supported the proposed rule, except for the proposed revisions to (1) apply the buffer zone requirement to waters of the United States rather than to perennial and intermittent streams and (2) require an analysis of alternatives for disposal of excess spoil and coal mine waste. Comments from state regulatory authorities and other governmental entities were mixed in terms of support for or opposition to the rule. In developing the final rule, we considered all comments that were germane to the proposed rule. In the remainder of this preamble, we summarize the comments received and discuss our disposition of those comments. VI. What general comments did we receive on the proposed rule? A. We Should Discourage the Mining and Use of Coal as a Power Source Because of the Role That the Combustion of Coal Plays in Climate Change Many commenters expressed opposition to the use of coal as a fuel for the generation of electricity, expressing concern about its role in climate change. We acknowledge the commenters' concerns. However, regulations adopted under SMCRA are not the appropriate venue to address climate change issues. Coal-fired power plants produce more than half of the electricity used in the United States and the use of coal as a fuel for power generation is likely to increase. Nothing in SMCRA authorizes us to regulate electric power generation facilities or to adopt regulations or take other actions for the purpose of reducing the use of coal for the generation of electricity or to require carbon sequestration. Indeed, in SCMRA, Congress repeatedly mentions the importance of coal to the Nation, including the continued production of coal as an energy source. Section 101(b) of SMCRA states that “coal mining operations presently contribute significantly to the Nation's energy requirements.” Section 101(d) refers to “the expansion of coal mining to meet the Nation's energy needs” and section 101(j) notes that “surface and underground coal mining operations * * * contribute to the economic well-being, security, and general welfare of the Nation.” Section 102(f) specifies that one of the purposes of SMCRA is to “assure that the coal supply essential to the Nation's energy requirements and to its economic and social well-being is provided.” That paragraph also provides that one of the purposes of SMCRA is to “strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.” Taken together, these passages and the other purposes of SMCRA listed in section 102 indicate that the regulatory provisions of SMCRA were enacted not to discourage the production or use of coal but rather to ensure that coal is mined in a manner that respects property rights and minimizes adverse impacts on land and water resources and communities. As stated in section 102(a) of SMCRA, in enacting SMCRA, Congress intended to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations. ” (Emphasis added.) There is no indication that Congress intended that the Act operate as a means of regulating the burning and use of coal as opposed to the manner and locations in which coal is mined. The lack of regulatory authority does not mean that we are indifferent to the potential problems posed by climate change from greenhouse gas emissions like carbon dioxide. In cooperation with industry, academia, conservation organizations, individual landowners, and others, we developed the Appalachian Regional Reforestation Initiative, which encourages both the reclamation of mined lands in a manner that is favorable to tree growth and the planting of trees as part of the mine reclamation process. Young forests, especially robustly growing young hardwood forests like those found on reclaimed minesites that use the forestry reclamation approach encouraged under the Appalachian Regional Reforestation Initiative, are generally recognized as an effective means of removing carbon dioxide from the atmosphere. B. We Should Withdraw the Proposed Rule and Enforce the 1983 Stream Buffer Zone, the Meaning of Which Is Clear as Written Many commenters argued that we should withdraw the proposed rule and instead fully implement and enforce the 1983 version of the stream buffer zone rule at 30 CFR 816.57 and 817.57. According to the commenters, there is no need to clarify the meaning of the 1983 rule because the plain language of that rule precludes the construction of excess spoil and coal mine waste fills in perennial and intermittent streams. The commenters stated that the proposed rule is a reversal of the 1983 rule, not a clarification, because it specifies that excess spoil fills, refuse piles, and certain other activities conducted in the stream as part of surface coal mining operations are not subject to the prohibition on disturbance of the stream buffer zone. We disagree with the commenters' interpretation of the 1983 rule. Historically, both the 1983 rule and its state counterparts have been applied in a manner that has allowed the construction of fills in perennial and intermittent streams as part of surface coal mining operations, provided those fills comply with all other applicable requirements of the SMCRA regulatory program and with all pertinent requirements under the Clean Water Act. In other words, the 1983 stream buffer zone rule applied only to activities within 100 feet of a perennial or intermittent stream. It did not apply to activities planned to occur in intermittent or perennial streams. Maintaining a 100-foot buffer zone to protect the stream's water quality and environmental resources makes sense only if the stream segment adjacent to the buffer zone is to remain intact. This historical interpretation and application of the stream buffer zone rule is in harmony with a statement of the U.S. Court of Appeals for the Fourth Circuit in Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003) (“it is beyond dispute that SMCRA recognized the possibility of placing excess spoil material in waters of the United States”). Several industry commenters stated that to apply the rule in any other way would be nonsensical and that applying the rule to activities that are designed to take place in stream channels would seriously impair the viability of coal mining in central Appalachia. The historical application of the 1983 rule closely resembles the revised stream buffer zone rules that we are adopting today. Consequently, the revised rules are in fact a clarification of the 1983 rule, not a reversal of that rule. C. We Should Not Adopt Any Rule That Facilitates Mountaintop Mining Operations or the Filling of Streams Many commenters objected to the proposed rule based on the perception that the rule would facilitate mountaintop removal operations and other large-scale surface mines and related mining techniques currently used to extract coal from the mountainous regions of central Appalachia. The commenters cited the damage that those operations allegedly cause to streams, hardwood forests, fish and wildlife, water supplies, and the landscape and culture of Appalachia as justification for prohibiting that type of mining. We understand the commenters' concerns. However, the perception that the proposed rule or this final rule would remove an obstacle to mountaintop removal operations or other large-scale mining operations is inaccurate. As we explained in the preamble to the proposed rule, our changes to the stream buffer zone rule are intended to clarify when and how that rule applies, consistent with the historical application of the 1983 rule under both SMCRA and the Clean Water Act. Our revisions are not intended to restrict coal removal. Nor are they intended to promote or discourage any particular method of mining, including mountaintop removal. In enacting SMCRA, Congress did not ban mountaintop removal operations or the construction of excess spoil fills in streams. Indeed, section 515(c) of SMCRA specifically authorizes the use of mountaintop removal methods to recover coal seams in steep-slope areas, and section 515(b)(22)(D) allows the construction of excess spoil fills in areas that “contain springs, natural water courses, or wet weather seeps” if a proper drainage system is installed. As stated in section 102(f), two of the Act's purposes are to “assure the coal supply essential to the Nation's energy requirements and to its economic and social well-being is provided” and to “strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.” When Congress wanted to place certain lands off-limits to coal mining, in whole or in part, or to prohibit certain types of mining, in whole or in part, it did so by including provisions in the Act to that effect. See, e.g., section 522 [“Designating Areas Unsuitable for Surface Coal Mining”], section 510(b)(5) [alluvial valley floors west of the hundredth meridian], and section 516(c) [underground coal mining under urbanized areas]. Otherwise, SMCRA and its implementing regulations establish how coal is to be mined, not whether it may be mined. The regulations that we are adopting today are consistent with the statute in that they are intended to minimize the adverse impacts of surface coal mining operations on fish, wildlife, and related environmental values without prohibiting the use of specific methods of mining or the recovery of coal from lands that have not been designated as unsuitable for surface coal mining operations. Most fill material placed in streams in connection with coal mining is a result of the need to dispose of excess spoil generated by mining operations conducted in areas consisting of steep slopes and narrow valleys. To remove coal by surface mining methods, the formerly solid rock strata overlying the coal seam must be broken up into fragments and excavated. The broken rock fragments (referred to as spoil) are separated by numerous voids, resulting in a significant increase in volume over the volume of solid rock in place before mining. The increase in volume varies considerably depending upon the nature of the rock and the mining method, but the industry average is about 25 percent. Returning all spoil to the mined-out area in steep-slope terrain would create highly unstable conditions and in most cases is physically impossible. Consequently, some spoil must be permanently placed outside the mined-out area in engineered fills, typically in the upper reaches of valleys adjacent to the mine. As defined in 30 CFR 701.5, spoil not needed to restore the approximate original contour and disposed of in locations other than the mined-out area is considered “excess spoil.” The central Appalachian coalfields are characterized by highly eroded plateaus dissected by numerous narrow, deeply incised valleys with steep side slopes. In this region, even small valleys may contain intermittent and perennial streams. For example, in a study conducted in West Virginia, the United States Geological Survey found that, on average, perennial streams begin in watersheds as small as 40.8 acres and intermittent streams in watersheds as small as 14.5 acres. See Katherine S. Paybins, Flow Origin, Drainage Area, and Hydrologic Characteristics for Headwater Streams in Mountaintop Coal-Mining Region of Southern West Virginia, Water Resources Investigations Report 02-4300, U.S. Geological Survey, 2003, p. 1. Consequently, the construction of excess spoil fills in those valleys often involves burying the upper reaches of perennial and intermittent streams. A further description of the existing environment of the central Appalachian coalfields can be found in the draft and final environmental impact statements issued in 2003 and 2005, respectively, by the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (COE or the Corps), the U.S. Fish and Wildlife Service (FWS), OSM, and the West Virginia Department of Environmental Protection. The draft EIS, which the final EIS incorporates by reference, contains the bulk of that description. The draft EIS is entitled “Mountaintop Mining/Valley Fills in Appalachia Draft Programmatic Environmental Impact Statement” (EPA 9-03-R-00013, EPA Region 3, June 2003) and is available at http://www.epa.gov/region3/mtntop/eis.htm . The final EIS, which is entitled “Mountaintop Mining/Valley Fills in Appalachia Final Programmatic Environmental Impact Statement” (EPA 9-03-R-05002, EPA Region 3, October 2005), is available at http://www.epa.gov/region3/mtntop/pdf/mtm-vf_fpeis_full-document.pdf . Underground mines also may result in the filling of some stream segments where other viable options may not exist, especially in steep-slope areas. Rock and other overburden materials removed as part of the cut made to expose the coal seam into which the mine entries and ventilation shafts are driven typically are used to construct an adjoining bench upon which mine offices, parking lots, equipment, and other support facilities are located. This process is referred to as “facing up” the mine. Any material removed as part of the face-up operation that is not used to construct the bench or placed in temporary storage for use in restoring the approximate original contour and reclaiming the face-up area once the mine closes permanently is excess spoil. Should such excess spoil exist, it would be placed in fills on adjacent hillsides or in adjoining valleys. Underground mining operations also may involve the excavation of non-coal waste rock from underground tunnels. The waste rock, which we define as underground development waste, is typically brought to the surface and placed either in refuse piles or in excess spoil fills that meet the requirements for refuse piles, as required by 30 CFR 817.71(i). Activities associated with coal preparation plants also may result in the filling of some stream segments. These plants clean coal by removing impurities, especially ash, incombustible rock, and sulfur. They create large quantities of coal processing waste, including both a very fine fraction, which is often suspended in water in a semi-liquid form (slurry) and a coarse fraction (refuse). The slurry is usually impounded behind dams constructed of coarse refuse in a valley adjacent to the plant. One industry commenter stated that underground coal mining in central Appalachia depends on fills in mostly intermittent streams to store material from mine bench and stockpile construction and for sedimentation ponds and road crossings. The commenter also noted that coal processing waste is deposited in valley fills associated with coal preparation plants. Therefore, according to the commenter, without valley fills, coal mining in central Appalachia is doomed. While the commenter's statement may be somewhat of an exaggeration, there is little doubt that a prohibition on placement of excess spoil and coal mine waste in perennial or intermittent streams would have a significant adverse impact not only on surface mines, but also on underground mines and coal preparation plants. Pages 7-8 of the final report dated January 13, 2003, for an economic study prepared for us by Hill & Associates, Inc. (Contract No. CT212142) contains the following discussion: We received strong input from the mining community that it is an egregious mistake to ignore impacts of the valley fill limitations on deep mines, especially new ones. First, many deep mines are co-dependent on related surface mines for quality blending requirements and even economic averaging arrangements. Eliminating or reducing the surface mining has a direct impact on the viability of the deep mining in these instances. Second, the typical reject rate in Central Appalachia from a wash plant associated with a deep mine is about 50%. Thus, for every one ton of coal mined, one ton of refuse is placed in a valley fill or related impoundment. In fact, the valley fills associated with wash plant refuse are generally among the larger valley fills associated with coal mining (with generally larger watershed) but are fewer in number than surface mining valley fills. Third, the construction of a new deep mine involves other valley fill issues. Often, a new deep mine is accompanied by a new wash plant with a new valley fill for refuse. The Hill & Associates report uses the term “deep mines” for underground mines and the term “wash plants” for coal preparation plants. In addition, in the report, the term “valley fills” includes all excess spoil fills and coal mine waste disposal facilities constructed as part of a surface mine. The following excerpt from a colloquy between Senators Howard Baker of Tennessee and Henry Jackson of Washington concerning S. 425, a 1973 bill that was a precursor to SMCRA, illustrates that Congress was cognizant of the potential scale of mountaintop removal operations and the attendant fills: Mr. BAKER. Mr. President, the last question I have to put, so that we may look this squarely in the face, is this: Would the distinguished chairman of the committee say certainly that what we are doing is sanctioning mountain top mining to the extent where whole mountains may be stripped down to ground level, and the storage of millions of tons of overburden may be placed in the hollows, creating hundreds of thousands of acres of new flat land, and that if we are going to adopt this variance which I intend to support, we should do it with our eyes wide open to the fact that whole mountains may disappear from the landscape? Mr. JACKSON. The answer is, yes, of course * * *. What we want to do is achieve the twin objectives, here, of being able to maintain a mining operation that will be satisfactory from an economic point of view, but also that will be environmentally acceptable. 119 Cong. Rec. S33314 (daily ed. October 9, 1973). D. We Should Ensure the Protection of Headwater Streams by Requiring Maintenance of an Undisturbed Buffer Between Mining Activities and Streams A number of commenters emphasized that headwater streams and mature forest cover are important to maintain the health of the ecological and biological functions of the entire stream. According to the commenters, numerous studies have clearly demonstrated that stream buffer zones of native vegetation (generally hardwood forests in the central Appalachian coal mining region) represent the best technology currently available for protecting the functions of headwater streams. We agree with the commenters that headwater streams make a significant contribution to ecosystem function and the ecological productivity of downstream flows. We also agree that, in the absence of other considerations, precluding surface coal mining and reclamation operations in or near headwater streams may be the best technology currently available to protect the fish, wildlife, and related environmental values associated with those streams. However, the universal protection of mature forest cover and headwater streams all the way to the top of the ridge or the head of the stream would preclude viable surface mining operations in almost all cases, especially in Appalachia. Sections 515(b)(24) and 516(b)(11) of SMCRA provide that surface coal mining and reclamation operations must use the best technology currently available to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values, but only “to the extent possible.” The “to the extent possible” clause in these statutory provisions recognizes that, because surface coal mining operations inherently involve significant disturbance of the land, those operations necessarily result in some disturbances to and adverse impacts on fish, wildlife, and related environmental values. Therefore, the determination of what constitutes the best technology currently available to minimize those adverse impacts is a site-specific determination that must be made in the context of the site's geologic, topographic, and ecological characteristics (including the location of the coal) and the nature of the mining operation. This approach is consistent with our regulatory definition of “best technology currently available” in 30 CFR 701.5, a definition that has remained unchanged since 1979. For example, it is almost never possible to conduct surface coal mining operations without disturbing ephemeral streams, especially in a mesic environment. In those cases, the best technology currently available would focus on how the site is reclaimed after mining, in particular, use of the revegetation, restoration, and fish and wildlife habitat enhancement measures mentioned in sections 816.97 and 817.97 of our rules. In addition, many surface coal mining operations necessarily involve disturbance of intermittent or perennial streams and all or part of the buffer zone for the stream segment in which the activities listed in paragraphs (b)(1) through (b)(4) of sections 816.57 and 817.57 of this final rule occur. For example, in 2000 in West Virginia, a team consisting of representatives from OSM, the West Virginia Division of Environmental Protection, industry, and the environmental community completed an engineering evaluation of 14 proposed mine sites, which were representative of all proposed mining sites in West Virginia. As summarized on page 2 of the report, the team concluded that prohibiting construction of fills in intermittent and perennial streams would have a dramatic impact on coal recovery: Limiting valley fills to the ephemeral streams resulted in significant or total loss of the coal resource for 9 of the 11 mine sites when compared to the original mine site plans. All of the coal resource was lost for 6 of the 11 mine sites. By restricting fills to the ephemeral streams, the total coal recovery is estimated at 18.6 million tons, a 90.9 percent reduction. The original estimate was 186 million tons. The team noted that even if smaller fills could be constructed, they would impact nearly every available valley, possibly increasing the overall environmental impact. Hence, this final rule does not absolutely prohibit the conduct of surface activities in intermittent or perennial streams, nor does it require maintenance of an undisturbed buffer between surface activities and the intermittent or perennial stream in situations where it is not possible to do so because of the nature of the proposed surface coal mining operations. In other words, avoidance of any disturbance to the stream and maintenance of an undisturbed buffer for the stream is not required if avoidance would preclude the conduct of surface coal mining and reclamation operations. However, in keeping with the statutory requirement to use the best technology currently available to the extent possible, and in response to the commenters' concerns, we have revised the rule to include a requirement that, when a permit application includes a proposal to disturb a perennial or intermittent stream or land within 100 feet of such a stream, the permit applicant must demonstrate to the satisfaction of the regulatory authority that avoiding disturbance of a perennial or intermittent stream or lands within 100 feet of such a stream is not reasonably possible. See paragraphs (b)(1), (c)(1), (d)(1), and (e)(1) of sections 780.28 and 784.28, paragraph (d)(1)(i) of sections 780.25 and 784.16, and paragraph (a)(3)(i) of sections 780.35 and 784.19 of the final rule. Those provisions of our final rule use the term “reasonably possible” to clarify that the phrase “to the extent possible” in sections 515(b)(24) and 516(b)(11) of SMCRA should not be interpreted as requiring the use of any theoretically possible approach to compliance with the minimization requirement without regard to cost or other provisions of SMCRA. Those provisions include section 515(b)(1), which requires that surface coal mining operations be conducted “so as to maximize the utilization and conservation of the solid fuel resource being recovered so that reaffecting the land in the future through surface coal mining can be minimized,” and section 102(f), which specifies that one of the purposes of SMCRA is to ensure that the coal supply essential to the nation's energy requirements is provided. Section 102(f) also calls for establishment of a regulatory program that balances environmental protection and coal production. We believe that our final rule strikes that balance by using the term “reasonably possible” to interpret and apply the requirements of sections 515(b)(24) and 516(b)(11) of the Act. A survey of all coal mining permits issued between October 1, 2001, and June 30, 2005, indicates that coal mining activities authorized by those permits will directly affect about 535 miles of streams nationwide, of which 324 miles (60.6 percent) are in the central Appalachian coalfields. Based on data from the West Virginia permits, we estimate that approximately two-thirds of the 324 miles will be permanently covered by excess spoil fills and coal mine waste disposal facilities. When segments of headwater streams are buried permanently by excess spoil or mine waste fills, the discharge from the toe of the fill is equivalent to a spring. The groin ditches associated with the fill are too steep to fully replicate the buried stream segment. As discussed in the environmental impact statement for this rulemaking, typically, the stream segment downstream of the discharge from the toe of the fill has a higher base flow rate and lower peak flows than it did before construction of the fill. The temperature of the flow is also cooler and less variable than that of the original stream. Most of the remaining miles of stream directly affected by mining operations should experience only temporary adverse environmental impacts, chiefly as a result of mining through those streams. In those cases, the streams are diverted and relocated while the mining operation proceeds through the streambed. When mining is completed, the stream is restored to its original location unless the relocation is permanent. Finally, our existing rules require that fills be revegetated in a manner consistent with the approved postmining land use. In time, we anticipate that hardwood forests will be reestablished on most fill surfaces in Appalachia. E. We Have Not Accorded Sufficient Importance to the Environmental Protection Purposes of SMCRA Several commenters objected to our repeated references to section 102(f) of SMCRA in the preamble to the proposed rule. Section 102(f) provides that one of the purposes of SMCRA is to “assure that the coal supply essential to the Nation's energy requirements and to its economic and social well-being is provided” and to “strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.” 30 U.S.C. 1202(f). The commenters allege that, in developing our proposed rule, we completely ignored the other purposes listed in section 102, in particular those in paragraphs (a) [“establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations”], (c) [“assure that surface coal mining operations are not conducted where reclamation as required by this Act is not feasible”], and (d) [“assure that surface coal mining operations are so conducted as to protect the environment”]. The commenters argue that the result is to skew the analysis of SMCRA in favor of resource development while overlooking negative impacts to streams, water quality, and fish habitat. The commenters made these arguments in the context of advocating protection for headwater streams and interpreting the 1983 rule in a manner that would preclude the construction of excess spoil fills and coal mine waste disposal facilities in streams. We disagree with the commenters' allegations. The purposes of SMCRA in section 102 explain what Congress intended to accomplish through the specific provisions found in the rest of the Act. They do not provide independent rulemaking authority. In particular, they do not provide authority to adopt regulations that would preclude surface coal mining operations on lands where those operations are not otherwise prohibited by SMCRA. Any regulations adopted under SMCRA (as well as any interpretation of an existing rule) must be consistent with the specific provisions of the Act. The environmental protection standards and other provisions of title V of the Act set out specific requirements, consistent with the environmental protection and other purposes of SMCRA, for the regulation of surface coal mining and reclamation operations. Therefore, any regulations implementing title V must be consistent with and based upon the provisions of that title. The purposes in section 102 can provide support or guidance for a regulation, but in and of themselves they do not establish requirements or authority for a regulation and they do not suffice to justify adoption of a regulation (or interpretation of an existing regulation) that is inconsistent with specific requirements or other provisions of the Act. Within title V, section 515(c) expressly requires that our regulations establish provisions under which mountaintop removal mining operations may be permitted: “Each State program may and each Federal program shall include procedures pursuant to which the regulatory authority may permit [mountaintop removal] operations.” 30 U.S.C. 1265(c)(1). Adoption of a rule (or interpretation of an existing rule) to prohibit placement of excess spoil and coal mine waste in streams, as the commenters advocate on the basis of the environmental protection purposes of paragraphs (a), (c), and (d) of section 102 of SMCRA, would be inconsistent with this provision of SMCRA because mountaintop removal operations—and most other types of mining operations in steep-slope areas—typically cannot be conducted without construction of excess spoil fills in streams. In a study conducted in West Virginia, the United States Geological Survey found that, on average, perennial streams begin in watersheds as small as 40.8 acres and intermittent streams in watersheds as small as 14.5 acres. See Katherine S. Paybins, Flow Origin, Drainage Area, and Hydrologic Characteristics for Headwater Streams in Mountaintop Coal-Mining Region of Southern West Virginia , Water Resources Investigations Report 02-4300, U.S. Geological Survey, 2003, p.1. Industry commenters also asserted that underground mining operations in central Appalachia would be severely curtailed by such a limitation because those operations need to construct fills to contain underground development waste generated by the face-up and other aspects of mine construction. It would be difficult to construct those fills in steep-slope areas without impacting an intermittent or perennial stream. In addition, section 515(b)(22)(D) of SMCRA authorizes the placement of excess spoil in areas that “contain springs, natural water courses, or wet weather seeps” if proper underdrains are constructed. Ephemeral, intermittent, and perennial streams are all natural watercourses. Springs are groundwater discharges. Discharges from springs typically form intermittent or perennial streams. In relevant part, our rules at 30 CFR 701.5 define an “intermittent stream” as a stream or reach of a stream that obtains its flow from both surface runoff and ground water discharge.” Therefore, by authorizing placement of excess spoil in areas that contain springs and natural watercourses, section 515(b)(22)(D) of SMCRA clearly allows construction of excess spoil fills in intermittent and perennial streams, provided the necessary underdrains are installed. Interpreting the purposes of SMCRA listed in paragraphs (a), (c), and (d) of section 102 as authorizing adoption of a rule (or interpretation of an existing rule) to effectively prohibit construction of excess spoil fills in perennial and intermittent streams thus would be inconsistent with section 515(b)(22)(D) of SMCRA and, by extension, section 515(c) of SMCRA. F. EPA Cannot Legally Concur With the Revised Stream Buffer Zone Rules Because They Violate the Clean Water Act Section 501(a)(B) of SMCRA specifies that we must obtain the written concurrence of the EPA Administrator with respect to regulations that relate to air or water quality standards published under the authority of either the Clean Air Act or the Clean Water Act. That provision applies to some of the changes that we are making in this final rule. Several commenters stated that EPA cannot legally concur with the proposed rule because it would result in significant degradation to the aquatic ecosystem in violation of the Clean Water Act regulations at 40 CFR 230.10(c), which are part of the 404(b)(1) Guidelines. The commenters argue that, by eliminating the provision in the 1983 stream buffer zone rule that required a finding that the proposed activity would not cause or contribute to a violation of state or federal water quality standards and would not adversely affect the water quality, quantity, or other environmental resources of the stream, the proposed rule would implicitly allow effects that are both adverse and significant. According to the commenters, this result would be inconsistent with 40 CFR 230.10(c), which provides that, subject to an exception that is not germane here, “no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States.” In addition, 40 CFR 230.10(a) provides that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” Therefore, according to the commenters, this final rule would violate the Clean Water Act, which would mean that EPA has no basis under the Clean Water Act for concurrence with the final rule. Another commenter argues the rule is not consistent with the Clean Water Act because it authorizes waste assimilation in streams, which the Clean Water Act prohibits. We do not agree with the commenters. Section 501(a)(B) of SMCRA does not establish a requirement that the EPA Administrator's concurrence be based upon provisions of the Clean Water Act. Moreover, the requirements of the Clean Water Act apply independently of any regulations adopted under SMCRA. See section 702(a)(2) of SMCRA, which provides that nothing in SMCRA “shall be construed as superseding, amending, modifying, or repealing” the Clean Water Act or any regulations or state laws adopted under authority of that law. Our final rules at 30 CFR 780.28(f)(2), 784.28(f)(2), 816.57(a)(2), and 817.57(a)(2) reiterate this relationship between SMCRA and the Clean Water Act and emphasize that issuance of a SMCRA permit does not authorize initiation of surface coal mining operations for which the applicant has not obtained all necessary authorizations, certifications, and permits under the Clean Water Act. Therefore, EPA's concurrence with the final rule is not contrary to the Clean Water Act. G. The Applicability of the Final Rules Should Be Limited to Steep-Slope Areas and Mountaintop Removal Operations The Pennsylvania regulatory authority recommended that we not proceed with this rulemaking because it would impose additional burdens on Pennsylvania, create uncertainty for both citizen groups and mine operators, and would likely lead to extensive and costly litigation. According to the commenter, the rule's benefits would not offset the unfunded burdens, uncertainties and litigation that would result from adoption of the regulations. Pennsylvania also stated that if we proceed with a final rule, that rule should not require all states to change their programs to address a matter that is an issue only in those few states that have mountaintop removal operations and steep-slope mining. Instead, Pennsylvania recommended that we use the specific authority of section 515 of SMCRA to craft a rule tailored to mountaintop removal operations and steep-slope mining. The National Mining Association made similar comments with respect to our proposed excess spoil rules, arguing that the rulemaking record does not demonstrate a need for applying the excess spoil rules to any other areas. We do not agree with the commenters' recommendations. We believe that perennial and intermittent streams potentially affected by excess spoil fills and coal mine waste disposal facilities in non-steep-slope areas and areas outside central Appalachia merit the same protection as streams in central Appalachia. Furthermore, states that may have very few operations involving placement of excess spoil or coal mine waste in perennial or intermittent streams would incur only minimal additional resource costs in processing applications for those operations. The vast majority of excess spoil fills that involve placement of excess spoil in perennial or intermittent streams are located in steep-slope areas of central Appalachia. However, those structures are occasionally constructed in streams in other states and other areas. For example, with respect to excess spoil fills, a nationwide survey of all coal mining permits issued between October 1, 2001, and June 30, 2005, found that those permits included a total of 1,612 excess spoil fills, of which 1,589 (98.6 percent) are located in the central Appalachian coalfields. Specifically, most of the fills approved in those permits are located in Kentucky (1,079), West Virginia (372), and Virginia (125), with 13 approved in Tennessee. However, the remaining fills approved during that time are located in Alaska, Alabama, Ohio, Pennsylvania, and Washington, so we believe that sufficient basis exists for a national rulemaking. This survey is discussed in greater detail in the environmental impact statement that accompanies this rule. Surface coal mining operations nationwide generate coal mine waste. Except in very flat terrain, refuse piles and especially slurry impoundments are constructed in stream valleys. There is no basis for limiting the scope of our coal mine waste rules to steep-slope areas or mountaintop removal mining. In addition, the stream buffer zone rule is national in scope, as are the stream diversion rules. The frequency of use of those rules has little relationship to topography or type of mining. Surface coal mining operations routinely encounter perennial and intermittent streams in both steep-slope and non-steep-slope areas. The changes that we have made to the stream buffer zone rules, especially the new permit application requirements for operations that propose to disturb the surface of lands within 100 feet of a perennial or intermittent stream and the revised findings that the regulatory authority must make before approving an exception to the buffer zone requirement, have universal applicability and utility, as do the changes to the stream diversion rules. Finally, we do not agree with the commenter's characterization of the rule as creating uncertainty. To the contrary, this rule is intended in part to address and resolve the controversy and uncertainty surrounding the 1983 stream buffer zone rule. The permitting decisions that the regulatory authority must make under this final rule differ little in complexity from those that the regulatory authority must make under other provisions of the existing rules. As in the case of other situations in which the regulatory authority must apply subjective requirements, we anticipate that the regulatory authority will use best professional judgment in determining compliance. Therefore, we decline to adopt the commenter's recommendations. H. The Stream Buffer Zone Rule Is Unnecessary and Should be Removed in Its Entirety Several commenters advocated completely removing the stream buffer zone rule, noting that nothing in SMCRA mandates adoption of such a rule. One commenter noted that removal of the stream buffer zone rule would be the most effective method of eliminating ambiguity from the federal regulations concerning fill construction. The commenters stated that maintaining a stream buffer zone rule is not needed to provide SMCRA-mandated environmental protection and that the statute and regulations are replete with other regulatory requirements that directly address the concerns for which the stream buffer zone rule was adopted. We considered the option recommended by the commenters, but decided to retain the stream buffer zone rule. With respect to perennial and intermittent streams, we believe that the rule serves a useful role in establishing a buffer zone as the best technology currently available to comply with the statutory requirements to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, provided maintenance of a buffer zone is reasonably possible. See the discussion in Part VI.D. of this preamble. VII. Why did we decide against applying the stream buffer zone rule to all waters of the United States (WOTUS)? On August 24, 2007, we proposed to revise the scope of our stream buffer zone rules at 30 CFR 816.57 and 817.57, which applied to perennial and intermittent streams, to apply to all waters of the United States, which would include certain lakes, ponds, wetlands, and reaches of ephemeral streams. We had two reasons for proposing this change. First, the scope of the statutory provisions that form the basis for the stream buffer zone rule, i.e., sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B) and (11) of SMCRA, is not limited to perennial or intermittent streams. Instead, those provisions broadly require that, to the extent possible using the best technology currently available, surface coal mining operations be conducted so as to prevent additional contributions of suspended solids to streamflow or runoff outside the permit area and that surface coal mining and reclamation operations be conducted so as to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values. Sedimentation and sediment-laden runoff from mine sites could degrade those values. Second, we anticipated that achieving greater consistency with the terminology used in regulatory programs under the Clean Water Act would remove one obstacle to better coordination and streamlining of the SMCRA and Clean Water Act permitting processes. In the preamble to the proposed rule, we requested comment on whether the increased regulatory consistency and other benefits of adopting the term WOTUS would outweigh the jurisdictional and other problems associated with use of that term as part of the SMCRA regulatory program. See 72 FR 48900, August 24, 2007. We found little public support for the proposed change. All three iterations of the stream buffer zone rule that we adopted since the enactment of SMCRA have applied only to perennial and intermittent streams or subsets thereof. Many commenters opposed disturbing that regulatory stability, noting that our rules at 30 CFR 701.5 define perennial and intermittent streams in a well-understood manner consistent with other generally accepted definitions of those terms. They expressed concern that use of WOTUS would be confusing because that term has no clearly established legal or programmatic meaning. The commenters stated that the various organizational units of the Corps and EPA vary greatly in their interpretation and application of the term WOTUS and that the scope of that term is constantly evolving as the courts struggle to define the jurisdictional reach of the Clean Water Act. One commenter noted that the Supreme Court has been unable to agree on even a single governing principle for WOTUS. See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng'rs , 531 U.S. 159 (2001) (SWANCC); Rapanos v. U.S. , 547 U.S. 715 (2006). The commenter concluded that “OSM should not anchor its regulatory program on such an unstable foundation,” a sentiment shared by other commenters. We received numerous comments to the effect that the proposed rule change would be unnecessary and possibly counterproductive because the definitions of perennial and intermittent streams in both our rules and state regulatory programs under SMCRA are clear and relatively straightforward to implement, while WOTUS is not. The Virginia regulatory authority commented that adding lakes, ponds, and wetlands to the scope of the buffer zone rule would probably not be much of a change to that agency's existing practice, apart from the matter of obtaining jurisdictional determinations, but that it would replace an established and effective regulatory term with no real benefit gained. Several commenters opposed changing the scope of our stream buffer zone rules to WOTUS because the unsettled and subjective meaning of that term would spawn considerable uncertainty, which would be contrary to our stated objective of clarifying the existing stream buffer zone rules. The National Mining Association elaborated upon this argument as follows: When OSM revised the [stream buffer zone] rule in 1983, the principal reason for limiting the rule to perennial and intermittent streams was because the earlier version referencing streams with a biological community was confusing and difficult to apply. This, according to the agency, “led to confusion on the part of operators” attempting to apply the amorphous and ill-defined biological community standard. In response to challenges from several environmental groups, the federal district court upheld the agency's reasoning holding that “it is precisely this type of justification, based on practical experience and expertise that justifies such a change.” Moreover, the court noted that the stream buffer zone rule is not the only, or the most important, one in OSM's regulation[s] to implement §§ 515(b)(10) and (24). [Footnotes omitted.] * * * Here the practical experience discloses that changing the scope of the rule to WOTUS will be even more confusing and difficult to apply than the 1979 rule due to the vague and confusing status of the meaning of waters of the United States. The Association also expressed concern that the adoption of WOTUS, a Clean Water Act term that we have no authority to interpret or define, could have unintended impacts on SMCRA regulatory programs and the regulated community because we have no control over how that term may be defined in the future. Several commenters expressed concern that the use of WOTUS would greatly delay the SMCRA permitting process because of the need to obtain jurisdictional determinations from the U.S. Army Corps of Engineers in accordance with a guidance document issued by EPA and the Corps on June 5, 2007, entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States ,” http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf . According to the commenters, that document appears to require that permit applicants seek jurisdictional determinations from the Corps in many more situations than was the case before issuance of the guidance document. The National Mining Association stated that the Corps already has a massive backlog of requests for jurisdictional determinations. Because we are not adopting the use of WOTUS for other reasons, we did not investigate the accuracy of these comments. However, for informational purposes, we note that the Corps also issued Regulatory Guidance Letter No. 08-02 on June 26, 2008. That letter provides further guidance on jurisdictional determinations and related procedures. The National Mining Association stated that it supports coordination of and reduction of duplication between the SMCRA and Clean Water Act permitting processes, but that, based on its experience in promoting that goal during the past seven years, it did not see any realistic probability that changing the focus of the buffer zone rule from perennial and intermittent streams to WOTUS would achieve that goal. The Association also stated that it did not foresee any discernible environmental benefits from the proposed change in focus. Comments submitted on behalf of 12 national environmental organizations also strongly opposed the proposed use of WOTUS to define the scope of the stream buffer zone rule: One of the most perplexing aspects of the proposed rule is OSM's plan to change the bodies of water to which stream buffer zone provisions apply. If adopted, the rule would no longer apply to all perennial and intermittent streams, but instead would cover “waters of the United States.” Although this is touted as providing “increased environmental protection and consistency with the Clean Water Act,” less protection and more confusion seems inevitable if the proposal is adopted. To begin with, this proposal appears to be a solution in search of a problem. OSM acknowledges: “we do not anticipate that this change in terminology will result in a significant expansion in the applicability of our rules because the vast majority of waters that may be affected by surface coal mining and reclamation operations are perennial and intermittent streams.” By itself, this fact is not a reason to reject the proposal; we agree with the idea that a wide range of water bodies ought to be protected from mining-related damage, as SMCRA contains provisions that seek to protect water bodies beyond streams. However, in view of the other problems discussed below with linking the Stream Buffer Zone rule to “waters of the United States” under the Clean Water Act, the likely incremental benefit of including other water bodies does not justify the change. If there is one thing that conservation groups, the federal government, and the coal mining companies probably can agree on in this rulemaking, it is that it is not clear today what aquatic features qualify as “waters of the United States,” at least without further factual inquiry. As a result of two Supreme Court decisions and unhelpful “guidance” by EPA and the Army Corps of Engineers, some have come to the conclusion that even certain streams may not qualify as “waters of the United States” protected by the Clean Water Act's core programs. Were the Stream Buffer Zone rule to be amended by the proposed rule to apply to “waters of the United States,” then, we have significant concern that it may be applied to only a subset of perennial and intermittent streams, whereas it historically has applied to all such streams. Effectively, implementing this change may lead to the proposed rule protecting fewer streams than the Stream Buffer Zone rule has in the past * * *. Finally, we do not believe that it is feasible, as OSM suggests, to resolve these jurisdictional issues by having “the SMCRA regulatory authority * * * consult and coordinate with the Corps of Engineers in situations in which there is a question as to whether waters within or adjacent to the proposed permit area are waters of the United States under the Clean Water Act.” As the OSM may or not be aware, it is the EPA, not the Corps, that has the responsibility for determining which water bodies are “waters of the United States” for purposes of the 404 program and the entire Clean Water Act. The EPA, working in conjunction with the Corps, is just beginning to make many jurisdictional and non-jurisdictional determinations using Rapanos as a guide, and the preliminary indications are that the process is very time-consuming and, more importantly, may be so arbitrary that it is leading to waters being declared unprotected when they in fact should remain jurisdictional. Three commenters (the U.S. Fish and Wildlife Service, the Geologic Resources and Water Resources Divisions of the National Park Service, and the Pennsylvania Fish and Boat Commission) expressly supported the proposed use of WOTUS in defining the scope of the stream buffer zone rules. However, two of the three expressed concern that the change might reduce the protection afforded to perennial and intermittent streams. The U.S. Fish and Wildlife Service stated that it supported the use of WOTUS “as a matter of regulatory consistency and sound public policy, but remains concerned about the unsettled nature of jurisdictional determinations in headwater streams” in the wake of recent Supreme Court decisions. The Service requested that we work with them “to develop a process to monitor the extent to which intermittent or perennial streams are determined not to be ‘waters of the U.S.' ” The Pennsylvania Fish and Boat Commission strongly urged that we also retain the rule's applicability to perennial and intermittent streams because application of those terms in the SMCRA context is not dependent upon a jurisdictional determination by the U.S. Army Corps of Engineers. The Commission expressed the fear that adoption of WOTUS without also retaining the rule's applicability to perennial and intermittent streams “would weaken or reduce the protection on most streams, especially headwater streams.” The Geologic Resources and Water Resources Divisions of the National Park Service stated that they fully supported the proposed change because many high-value aquatic ecosystems are neither perennial nor intermittent streams. According to the commenter, the proposed rule change would not place an undue burden or impact on operators, especially when considering the environmental benefits that would be realized through protecting a more inclusive set of aquatic systems, including wetlands, lakes, and ponds. The commenter stated that the National Park Service routinely seeks permits through local Corps offices and has never found that this requirement imposed a burden or had a substantial impact on the completion of any project. After evaluating the comments received, we find the arguments against adoption of WOTUS persuasive. The final rule that we are adopting today retains the status quo with respect to the scope of the stream buffer zone rule; i.e., that rule will continue to apply to perennial and intermittent streams rather than to WOTUS. Rather than attempting to introduce Clean Water Act terminology and procedures into regulations implementing SMCRA, we believe that the more prudent and defensible course of action is to adopt terminology and requirements based on provisions of SMCRA. SMCRA does not use the term WOTUS in establishing regulatory requirements for surface coal mining operations, but it does refer to streams. At the same time, section 702(a) of SMCRA clearly specifies that nothing in SMCRA may be construed as superseding, amending, modifying, or repealing the Clean Water Act or its implementing regulations. Therefore, issuance of a SMCRA permit does not authorize the permittee to initiate activities for which a permit, certification, or other authorization is required under the Clean Water Act. The final rules at 30 CFR 780.28(f)(2), 784.28(f)(2), 816.57(a)(2), and 817.57(a)(2) that we are adopting today reiterate that fact. One commenter strongly disagreed with our statement in the preamble to proposed 30 CFR 780.28 and 784.28 that we did not anticipate that switching from perennial and intermittent streams to WOTUS would result in a significant expansion in the applicability of our rules because the vast majority of waters that may be affected by surface coal mining and reclamation operations are perennial and intermittent streams. This comment is now moot in light of our decision not to adopt WOTUS. We also wish to clarify that we use the terms perennial, intermittent, and ephemeral streams, as defined in 30 CFR 701.5, to implement the SMCRA regulatory program. Our definitions of those terms do not affect jurisdictional determinations under the Clean Water Act. The Corps and EPA are responsible for making those jurisdictional determinations. Although we have decided not to adopt WOTUS as part of the stream buffer zone rule, our existing rules will continue to provide protection to lakes, ponds, wetlands, and, to some extent, ephemeral streams by other means. Those rules fully implement the statutory provisions that form the basis for the stream buffer zone rule, i.e., sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B) and (11) of SMCRA, which require that, to the extent possible using the best technology currently available, surface coal mining operations be conducted so as to prevent additional contributions of suspended solids to streamflow or runoff outside the permit area and that surface coal mining and reclamation operations be conducted so as to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values. Most significantly, 30 CFR 780.16(b) and 784.21(b) require that each permit application include a fish and wildlife protection and enhancement plan. The plan must describe how, to the extent possible, using the best technology currently available, the operator will minimize disturbances and adverse impacts on fish, wildlife, and related environmental values during surface coal mining and reclamation operations and how enhancement of those resources will be achieved where practicable. The plan must be consistent with the requirements of 30 CFR 816.97 or 817.97 and it must include protective measures to be taken during the active mining phase. The rule lists the establishment of buffer zones as one example of those protective measures. Under 30 CFR 816.97(a) and 817.97(a), the operator must, to the extent possible, using the best technology currently available, minimize disturbances and adverse impacts on fish and wildlife and related environmental values and must achieve enhancement of those resources where practicable. Paragraph (f) of 30 CFR 816.97 and 817.97 provides that the operator must avoid disturbances to, enhance where practicable, restore, or replace wetlands and riparian vegetation along rivers and streams and bordering ponds and lakes. Paragraph (f) also requires that the operator avoid disturbances to, enhance where practicable, or restore habitats of unusually high value for fish and wildlife. With respect to water quality, 30 CFR 780.21(h) and 784.14(g) require that each permit application include a hydrologic reclamation plan indicating how the relevant requirements of 30 CFR part 816 or 817, including sections 816.41 through 816.43 or 817.41 through 817.43, will be met. The plan must be specific to local hydrologic conditions and it must contain the steps to be taken to minimize disturbances to the hydrologic balance within the permit and adjacent areas. Under 30 CFR 816.41(a) and 817.41(a), all surface and underground mining and reclamation activities must be conducted to minimize disturbance of the hydrologic balance within the permit and adjacent areas. VIII. Section-by-section analysis: How are we revising our rules? A. Sections 780.14 and 784.23 Operation Plan: Maps and Plans As proposed, we are revising 30 CFR 780.14(b)(11) and 784.23(b)(10) by replacing the terms “coal processing waste bank” and “coal processing waste dam and embankment” with “refuse pile” and “coal mine waste impounding structure” to employ terminology consistent with the definitions and performance standards that we adopted September 26, 1983. See the discussion under the heading “Changes to conform to 1983 rule revisions” in Part VIII.B. of this preamble for a more detailed explanation. In addition, as proposed, we are replacing the references to sections 780.35(c) and 816.71(b) in the former version of section 780.14(c) with a reference to section 780.35 to be consistent with other changes that we are making to those rules. Those changes include moving the design certification requirement formerly located in section 816.71(b) to section 780.35(b) to consolidate permitting requirements. In similar fashion, as proposed, we are deleting the reference to section 817.71(b) formerly located in section 784.23(c) because we are moving the design certification provisions previously located in section 817.71(b) to section 784.19(b) to consolidate permitting requirements. There is no need for a replacement cross-reference because section 784.23(c) already cross-referenc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-29150. Public record. Not legal advice.