Topsoil Redistribution and Revegetation Success Standards, 51684-51706 [06-7249]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 71, Number 168 (Wednesday, August 30, 2006)]
[Rules and Regulations]
[Pages 51684-51706]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-7249]



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Part III





Department of the Interior





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Office of Surface Mining and Enforcement



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30 CFR Parts 816 and 817



Topsoil Redistribution and Revegetation Success Standards; Final Rule

Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / 
Rules and Regulations

[[Page 51684]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

RIN 1029-AC02

30 CFR Parts 816 and 817


Topsoil Redistribution and Revegetation Success Standards

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are finalizing minor changes to our regulations to improve the 
quality and diversity of revegetation in the reclamation of coal mined 
lands. These revisions govern topsoil redistribution and revegetation 
success standards and will: Encourage species diversity on reclaimed 
lands by allowing replacement of soil in variable thicknesses; provide 
more flexibility to States in using new vegetative success standards 
and sampling techniques by removing the current requirement that such 
changes be included in the approved regulatory program; define success 
standards for lands with an undeveloped land postmining land use; 
remove shelter belts from the list of postmining land uses subject to 
success standards; provide more flexibility to operators when they 
demonstrate compliance with time-in-place requirements by allowing them 
to consider all trees and shrubs in place at bond release, including 
volunteer trees and shrubs, and not requiring them to verify the length 
of time that individual trees and shrubs have been in place--this 
change will remove a significant impediment to reforestation of mined 
lands; and make the timing of revegetation success measurements in 
areas receiving 26 inches of annual precipitation or less consistent 
with those in areas receiving more than 26 inches of annual 
precipitation.

DATES: Effective Date: September 29, 2006.

FOR FURTHER INFORMATION CONTACT: Robert Postle, Office of Surface 
Mining Reclamation and Enforcement, U.S. Department of the Interior, 
P.O. Box 46667, Denver, CO 80201; Telephone: 303-844-1400, extension 
1469. E-mail: bpostle@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background Information on the Rulemaking
II. Discussion of the Revisions and Our Response to the Comments 
Submitted
III. Procedural Matters and Required Determinations for This Rule

I. Background Information on the Rulemaking

Why are we revising our regulations?

    On March 17, 2005, we published proposed revisions to our 
regulations that govern portions of the performance standards dealing 
with topsoil redistribution and evaluation of revegetation success. 70 
FR 13076. The revisions contained in this final rule are the product of 
several outreach efforts by OSM to review and assess its revegetation 
regulations at Sec. Sec.  816.111 through .116 and Sec. Sec.  817.111 
through .116. The first outreach effort occurred in 1999. As part of 
this revegetation initiative, we published a Federal Register notice on 
May 17, 1999 (64 FR 26773), announcing public meetings and soliciting 
comments, concerns, and new ideas regarding the regulatory performance 
standards that determine revegetation success. In the notice, we also 
announced the availability of an OSM concept paper that reviewed 
various longstanding revegetation issues. We held ten public meetings 
around the country between May 27 and August 25, 1999. In the spring of 
2003, as a follow-up to the 1999 revegetation initiative, we conducted 
a survey of State regulatory authorities. This survey explored whether 
the statistical and/or production requirements of the current 
revegetation regulations at Sec.  816.116 and Sec.  817.116 adversely 
affect the establishment of a diverse plant community; whether there is 
a continuing need for inclusion of success standards and sampling 
techniques in a State's approved program; and whether there is a need 
for success standards for undeveloped postmining land.
    In addition to the revegetation initiative and survey, we also 
established a reforestation outreach initiative that began with three 
workshops held between January 1999 and May 2002 involving Federal and 
State regulatory personnel, industry representatives, and landowners. 
As part of this second initiative, we raised the question whether 
specific OSM regulations act as a disincentive to the choice of 
forestry as a postmining land use.
    Largely as a result of these revegetation and reforestation 
initiatives and the survey, we identified five minor revisions that we 
needed to make to the existing regulations. This rule revises the 
Federal regulations governing the topsoil redistribution standards at 
Sec.  816.22(d)(1) and Sec.  817.22(d)(1); the success standards and 
sampling techniques requirements at Sec.  816.116(a)(1) and Sec.  
816.117(a)(1); the land use categories subject to the success standards 
at Sec.  816.116(b)(3) and Sec.  817.116(b)(3); the revegetation 
success standards for trees and shrubs at Sec.  816.116(b)(3)(ii) and 
Sec.  817.116(b)(3)(ii); and the timing of revegetation success 
measurements at Sec.  816.116(c)(3)(i) and (ii) and Sec.  
817.116(c)(3)(i) and (ii).
    These revisions will, respectively, encourage species diversity on 
reclaimed lands by allowing replacement of soil in variable 
thicknesses; provide more flexibility to States in using new vegetative 
success standards and sampling techniques by removing the current 
requirement that such changes be included in the approved regulatory 
program; define success standards for lands with an undeveloped land 
postmining land use; remove shelter belts from the list of postmining 
land uses subject to success standards; provide more flexibility to 
operators when they demonstrate compliance with time-in-place 
requirements by allowing them to consider all trees and shrubs in place 
at bond release, including volunteer trees and shrubs, and not 
requiring them to verify the length of time that individual trees and 
shrubs have been in place--this change will remove a significant 
impediment to reforestation of mined lands; and make the timing of 
revegetation success measurements in areas receiving 26 inches of 
annual precipitation or less consistent with those in areas receiving 
more than 26 inches of annual precipitation. Since the soil 
redistribution and revegetation success standards are identical for 
surface and underground mining activities, this preamble will discuss 
our revisions to part 816 with the understanding that the discussion 
also applies to our revisions to part 817.
    In response to the Federal Register notice of our 2005 proposed 
rule, we received a total of 34 comments. We discuss the comments and 
our responses to those comments below. No one requested a public 
hearing.

II. Discussion of the Revisions and Our Response to the Comments 
Submitted

1. Section 816.22(d)(1)(i): Topsoil Redistribution

What are the revisions to Sec.  816.22(d)(1)(i)?
    In order to improve the potential for establishing diverse plant 
communities consistent with the specific revegetation goals for an 
approved postmining land use, we are adopting, as generally proposed 
and further revised in response to comments received, topsoil 
redistribution provisions at Sec.  816.22(d)(1)(i) that specify the 
manner

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in which topsoil material removed under Sec.  816.22(a) or (b) must be 
redistributed. Final Sec.  816.22(d)(1)(i) will read as follows, with 
new language in italics:

    (d) Redistribution. (1) Topsoil materials and topsoil 
substitutes and supplements removed under paragraphs (a) and (b) of 
this section shall be redistributed in a manner that--
    (i) Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and 
surface-water drainage systems. Soil thickness may also be varied to 
the extent such variations help meet the specific revegetation goals 
identified in the permit;

    Under the prior topsoil redistribution regulations at Sec.  
816.22(d)(1)(i), topsoil must be redistributed in a manner that 
``achieves an approximately uniform, stable thickness consistent with 
the approved postmining land use * * *.'' This requirement that topsoil 
be redistributed (or ``replaced'') to an approximately uniform 
thickness has proven to be particularly appropriate when the approved 
postmining land uses are, for example, commercial forestry or cropland, 
both of which may involve a single species of vegetative cover in a 
managed agricultural environment. However, when the approved postmining 
land uses are wildlife habitat or grazing land that require 
satisfaction of specified vegetative diversity standards for bond 
release, the requirement in Sec.  816.22(d)(1)(i) that topsoil be 
replaced to an approximately uniform thickness may often work against 
the achievement of those vegetative diversity standards. This is 
because a plant community that will sustain itself without constant 
management input is, to a considerable degree, a function of the 
physical and chemical characteristics of the soil upon which it is 
growing. In turn, variable topsoil depth is one of the several physical 
characteristics that operators can use to encourage the desired species 
diversity.
    As discussed in the preamble to the proposed rule, when we first 
promulgated our topsoil regulations over 20 years ago, we noted that 
two commenters had objected to the proposed uniform thickness 
requirement as being a design standard, not a performance standard. 48 
FR 22092, May 16, 1983. These commenters warned that the rule's uniform 
soil thickness requirement could lead to a monoculture vegetative 
community rather than a diverse native species community. We did not 
accept this comment, responding that topsoil thickness is but one of 
several factors affecting plant growth and species diversification.
    More recently, in response to our 1999 revegetation outreach 
effort, commenters again questioned the appropriateness of the Sec.  
816.22(d)(1)(i) provision, which they interpreted as requiring that 
topsoil always be redistributed to a uniform thickness. These 
commenters stated that uniform soil thickness tends to promote a 
limited number of species in the vegetative cover while variable soil 
thicknesses tend to promote a more diverse vegetative community. The 
truth of this proposition has been born out by the experience of OSM 
agronomists and is consistent with well-established principles of soil-
plant relationships. As proposed, we have revised our regulations at 
Sec.  816.22(d)(1)(i) by adding a sentence that expressly allows soil 
thickness to be varied to the extent such variations help to meet the 
specific revegetation goals identified in the permit. Also as proposed, 
we have inserted the word ``when'' between the words ``thickness'' and 
``consistent'' in the existing language of Sec.  816.22(d)(1)(i). This 
insertion should make clear that the uniform soil thickness provision 
is a function of the approved postmining land use, contours, and 
surface water drainage systems, and is not, in itself, an inflexible 
requirement.
    While the prior uniform topsoil redistribution standard of Sec.  
816.22(d)(1)(i) has generally worked quite well, the new revisions to 
that standard are intended to provide the operator with another tool 
for encouraging the development of the diverse plant communities 
required of specific postmining land uses. For example, if the 
designated postmining land use is fish and wildlife habitat, and the 
desired plant communities are a mixture of grasslands with interspersed 
shrub and tree areas for wildlife cover, then the permit could describe 
the use of variable topsoil thickness to ensure the establishment of 
grasses on thicker soils and trees and shrubs on thinner soils. The 
fact that the permit applicant must clearly set forth the justification 
for any non-uniform redistribution of topsoil should largely protect 
against potential abuse. This revised rule will not affect existing 
topsoil salvage requirements.
    In response to comments, we have further revised Sec.  816.22(d)(1) 
to provide that topsoil materials and topsoil substitutes and 
supplements removed under paragraphs (a) and (b) must be redistributed 
in a manner that meets the requirements of subparagraphs (i)-(iii). 
(Emphasis added). This last revision should make clear that, under 
appropriate circumstances, the variable thickness revision of Sec.  
816.116(d)(1)(i) applies to topsoil supplements and substitutes already 
allowed under Sec.  816.22(a) and (b).
What were the comments submitted on our proposed revisions to Sec.  
816.22(d)(1)(i)?
    Seventeen commenters supported our proposed revision to the topsoil 
redistribution requirements of Sec.  816.22(d)(1)(i). Their comments 
focused on the potential to be gained from varying topsoil thickness in 
establishing diverse plant communities. The commenters noted that 
research supports our contention that topsoil thickness affects the 
types, number, and densities of plants established in a particular 
area. These commenters also generally supported our position that the 
use of variable topsoil thickness to meet specific revegetation goals 
identified in the permit will assist operators in establishing more 
diverse plant communities on areas where such diversity is appropriate 
to meet the postmining land use.
    Four commenters proposed an additional revision to Sec.  
816.22(d)(1). They suggested that we further amend Sec.  816.22(d)(1) 
to apply to topsoil and topsoil supplements and substitutes removed 
under paragraphs Sec.  816.22 (a) and (b) of this section. The 
commenters indicated that the revision that we proposed inappropriately 
applies only to topsoil materials as defined at Sec.  701.5, which 
states that ``[t]opsoil means the A and E soil horizon layers of the 
four master soil horizons.'' The commenters saw this as a problem 
because western coal mines are often located in areas where the native 
soils are poorly developed. At many of these mines, the A and E 
horizons are absent or insufficient in thickness to provide sufficient 
material for reclamation. Consequently, to meet their reclamation 
goals, operators must rely on the use of suitable unconsolidated 
materials immediately below the topsoil and on the use of selected 
overburden as topsoil supplements and/or substitutes. The commenters 
further noted that in other situations operators use very specific 
topsoil substitutes to establish specific or unique plant communities. 
For example, ongoing revegetation efforts have shown that substitute 
materials with high rock fragment content are best for reestablishing 
woody species in parts of the West. Accordingly, the commenters argued 
that we needed to broaden our proposed revision to Sec.  816.22(d)(1) 
to expressly allow for removed material, be it topsoil, topsoil 
supplements, or topsoil substitutes, to

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be replaced in variable thicknesses to meet specific revegetation 
goals. According to commenters this change would allow western surface 
coal mine operators to share in the benefits that our proposed rule was 
intended to achieve.
    We believe that these commenters have raised a valid concern about 
the applicability of Sec.  816.22(d)(1) to the replacement of topsoil 
supplements or to substitutes currently allowed under Sec.  816.22(b). 
Many approved reclamation plans throughout the country already allow 
the use of topsoil supplements or substitutes. Regulatory authorities 
often permit use of such supplements or substitutes where there is 
insufficient topsoil, defined as A and E horizon material, to ensure 
the prescribed revegetation success. In other cases, they have approved 
topsoil substitutes when applicants have demonstrated that the existing 
topsoil is less suitable as plant growth material for the desired plant 
community than available subsoil or spoil material. For many years we 
have interpreted Sec.  816.22(d)(1) as applying to both topsoil 
material removed under Sec.  816.22(a) and to topsoil supplements or 
substitutes removed under Sec.  816.22(b). Pursuant to this 
interpretation, once operators identify and remove approved topsoil 
supplements or substitutes, they may treat this material as topsoil 
material for the purposes of storage and redistribution. However, to 
eliminate any potential confusion as to whether, under appropriate 
circumstances, the variable thickness revision of Sec.  816.22(d)(1)(i) 
applies to topsoil supplements and substitutes already allowed under 
Sec.  816.22(a) and (b), we are accepting the comment and revising 
Sec.  816.22(d)(1) as the commenters suggested. Accordingly, as set 
forth above, final Sec.  816.22(d)(1) will provide that ``(1) Topsoil 
materials and topsoil substitutes and supplements removed under 
paragraphs (a) and (b) of this section shall be redistributed in a 
manner that--'' (Emphasis added). Hereafter, references to variable 
topsoil replacement also includes variable replacement of topsoil 
substitutes and supplements.
    Two commenters suggested eliminating from Sec.  816.22 (a) the 
requirement to remove, i.e., salvage all topsoil. These commenters 
contend that, based on our proposal to allow replacement of topsoil at 
variable depths, we should be flexible and, at least in certain 
circumstances, also allow operators not to remove and replace all 
``available'' topsoil. They argued that to require removal of all 
available topsoil would potentially defeat the purpose in the proposed 
rule of allowing shallower topsoil depths. In addition, the commenters 
pointed out that, according to mine reclamation professionals, 
shallower topsoil depths increase plant community diversity and woody 
stem density, while deeper than average topsoil depths (that would 
compensate for the areas where topsoil is applied more shallowly than 
the uniform average) only encourage aggressive grass and forb species 
at the expense of diversity and woody stem density.
    While the commenters are correct that shallower soils can increase 
plant diversity and woody stem density, we are not revising the 
regulations as they proposed. The existing regulations at Sec.  
816.22(a) will continue to require the removal of all topsoil, defined 
elsewhere as A and E horizon material. For several reasons we do not 
believe that these regulations pose the problem suggested by the 
commenters. Most importantly, section 515(b)(5) of the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act), clearly 
requires the removal and replacement of all suitable topsoil. 
Furthermore, natural landscapes usually include areas with deep soils 
as well as shallower soils. This in turn results in multiple distinct 
plant communities across the landscape. When we require uniform soil 
thickness for reclamation, the result may be a single plant community 
but little plant community variability across the landscape. 
Conversely, when we require reclamation that includes areas with deep 
soils as well as shallower soils, the result is more likely the 
establishment of multiple diverse plant communities, including those 
that prefer deeper soils as well as those that prefer shallower soils. 
The purpose of the rule is not, as commenters characterize, to allow 
for shallower topsoil depths throughout the reclamation area. Instead, 
the rule requires removal of all topsoil to allow development of 
reclamation and revegetation plans that can maximize the use of that 
topsoil through the placement of variable topsoil depths and the 
reconstruction of a much more diverse landscape similar to that which 
may have existed prior to mining.
    One commenter indicated that, if we allow variation in soil 
thickness (specifically reductions in soil thickness), we must also 
require the operator to demonstrate that an equal or greater chance for 
sustaining vegetation success will result. In addition, the commenter 
stated that the operator should have to demonstrate that the 
reconstructed soil has a root zone of sufficient depth to support the 
approved postmining land use.
    We generally agree with this comment but do not believe that any 
change in the revised regulation is necessary to ensure the desired 
variation of soil thickness. The revised language of Sec.  
816.22(d)(1)(i) allows operators to vary soil thickness to the extent 
necessary to meet the specific revegetation goals identified in the 
permit. In turn, these revegetation goals should support the approved 
postmining land use. The State and the public will have the opportunity 
to review the permit prior to approval and determine whether the 
permittee has justified the need for variable topsoil thicknesses in 
order to achieve the identified revegetation goals. If the permittee 
has failed to do so, the State can disapprove the use of variable 
topsoil thicknesses or require additional information to justify 
departure from the normal practice. On this basis, we do not believe 
that the demonstration proposed by the commenter is necessary.
    One commenter opposed our proposed revision to the topsoil 
redistribution requirements of Sec.  816.22(d)(1)(i). Instead of 
replacing all the soil that was lost to strip-mining, the commenter 
alleged that, under revised Sec.  816.116(d)(1)(i), coal companies 
could replace only some of the removed soil. The commenter opposed the 
change to Sec.  816.22(d)(1)(i) because, according to him, it could 
``let coal companies do even less to bring the land they've mined back 
to its original condition.''
    This commenter seems to have misunderstood our proposal. It does 
not scrap the current standard. As before, the revised regulation will 
require operators to remove all topsoil from areas that are to be 
disturbed by mining. After mining, they must redistribute all removed 
topsoil on areas disturbed by mining. The proposed and final rules 
merely allow operators whose reclamation plan and postmining land use 
require the establishment of diverse plant communities as part of 
specific revegetation goals identified in the permit to redistribute 
topsoil at variable thicknesses rather than at approximate uniform 
thickness. For the reasons stated above, we believe that the revision 
to Sec.  816.22(d)(1)(i) will result in improved and more diverse 
reclamation.
    Another commenter observed that the proposed revision to Sec.  
816.22(d)(1)(i) will require better planning on the part of companies 
at the permitting stage, and that they must complete all vegetation 
planning prior to completion of rough grading and prior to topsoil 
replacement. The commenter, however, expressed concern that those who

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thought that the proposal would make reforestation more successful may 
be disappointed.
    We strongly agree that allowing variable topsoil thickness under 
the new provisions of Sec.  816.22(d)(1)(i) will require appropriate 
planning by operators. As expressly stated in final Sec.  
816.22(d)(1)(i), operators can vary soil thickness only if they justify 
this variation based on specific revegetation goals identified in the 
permit. The permit would necessarily have to include a discussion of 
plans for variable topsoil thickness. Furthermore, an approved permit 
would have to be in place prior to implementation of any plan for 
regrading, topsoil redistribution, or revegetation. While there can be 
no guarantee as to how much the revision to Sec.  816.22(d)(1)(i) will 
actually increase reforestation of reclaimed areas, we reasonably 
believe that the revision should encourage reforestation and species 
diversity.
    Another commenter suggested that we should broaden the proposed 
revision to Sec.  816.22(d)(1)(i) to allow variable replacement 
thicknesses for (1) suitable unconsolidated materials located 
immediately below the topsoil, and (2) selected overburden used as 
topsoil supplements and/or substitutes when the use of such materials 
would help to meet the reclamation goals identified in the permit. In 
the course of its own reclamation activities this commenter had found 
that selected overburden materials, including scoria of suitable 
fragment size range, are vitally important to creating diverse 
vegetation types such as open scrub, and highly conducive to 
establishing several shrub species in the genus Artemisia.
    With regard to the commenter's first suggestion, we note that Sec.  
816.102(f) already addresses the thickness of the suitable 
unconsolidated material that is replaced below the topsoil. The 
regulation expressly requires that exposed coal seams, acid- and toxic-
forming materials, and combustible materials exposed, used, or produced 
during mining must either be adequately covered with nontoxic and 
noncombustible material, or treated, to control the impact of the 
materials on surface and ground water in accordance with Sec.  816.41, 
to prevent sustained combustion, and to minimize adverse effects on 
plant growth and the approved postmining land use. Section 816.102(f) 
does not specify the thickness of the layer of nontoxic material that 
must cover acid- and toxic-forming materials. The regulation thus 
permits variable redistribution thicknesses of suitable unconsolidated 
material that is found below the topsoil. As to the commenter's second 
proposal, we have already stated that Sec.  816.22(d)(1)(i) properly 
applies to topsoil supplements and substitutes and have revised the 
regulation to clarify this point. Accordingly, final Sec.  816.22(d)(1) 
will apply to both topsoil removed under Sec.  816.22(a) and topsoil 
supplements and substitutes used in accordance with Sec.  816.22(b).
    Another commenter indicated that the proposed revision to Sec.  
816.22(d)(1)(i) allowing for variable soil thickness was unnecessary 
for achievement of our stated purpose of encouraging greater plant 
diversity. This commenter asserted that the existing rules afford 
operators the flexibility to vary soil thicknesses in appropriate 
cases. The commenter stated that reclamation plans within a single 
permit area can be, and have been designed to accommodate the needs of 
croplands, grasslands, and woodland plants by varying soil thicknesses 
in the areas where each vegetation type will be planted. According to 
the commenter, several other factors have far more influence upon the 
diversity of the post-mining vegetative communities than do variable 
soil thicknesses. These factors include the particular vegetation that 
is to be planted after mining, the quality of the soil replaced, and 
the degree to which soil compaction is prevented. The commenter 
continued that the current regulation at Sec.  816.22(d)(1)(i) 
requiring the replacement of an approximately uniform thickness of 
topsoil provides for the protection, use, and productivity of soil 
resources in a way that should restore the capability of the land to 
support a wide variety of vegetation types and land uses. In support of 
our retaining the longstanding provisions of Sec.  816.22(d)(1), the 
commenter emphasized that the segregation and replacement of topsoil 
over entire reclaimed areas has been successful over the fifty-seven 
years of regulating the restoration of mined lands. This commenter 
further noted that the proposed revision to Sec.  816.22(d)(1)(i) would 
not provide minimum thickness requirements for topsoil redistribution. 
The commenter cautioned that, while variable topsoil thickness may 
improve attainment of certain land use types, too thin a layer of 
topsoil could prove counterproductive to the attainment of ground 
cover, erosion protection, water quality protection, and restoration of 
productive capability of the land. The commenter concluded, therefore, 
that any provision allowing replacement of variable topsoil or topsoil-
substitute thicknesses should also provide for a minimum topsoil or 
soil-substitute thickness. This commenter also indicated that his 
experience is not consistent with the statement in our preamble that 
``[t]he fact that a permit applicant must clearly set forth the 
justification for any non-uniform redistribution of topsoil should 
largely protect against potential abuse.'' According to the commenter, 
it would be easier for a regulatory authority to sustain challenges to 
a finding of non-compliance with a specific performance standard, e.g., 
that operators must redistribute topsoil in an uniform thickness, than 
to sustain challenges to a finding that the operator has not adequately 
set forth the justification for non-uniform thicknesses.
    We disagree with these comments and concerns. Most importantly, we 
do not consider that the revision to Sec.  816.116(d)(1)(i) represents 
a reduction of the regulatory standards. As discussed in the preamble 
to our proposed rule and as reflected in the express language of that 
rule, we intend to allow variable topsoil thicknesses when necessary to 
further the specific revegetation goals identified in the permit. The 
fact that the permit application must clearly set forth the 
justification for variable topsoil thicknesses reasonably protects 
against potential abuse. If the regulatory authority finds that 
redistribution of topsoil in variable thicknesses is not necessary to 
meet the specific revegetation goals identified in the permit 
application, then the authority need not approve that aspect of the 
application. If, however, the regulatory authority finds that variable 
topsoil thicknesses is desirable, the permit application should specify 
the amount of variability allowable and the minimum acceptable topsoil 
thickness. Contrary to the commenter's experience, research in the West 
on the impact of topsoil depth on plant diversity has shown that plant 
diversity can be improved with redistribution of variable topsoil 
thicknesses. Long-Term Plant Community Development In Response to 
Topsoil Replacement Depth On Mined Land In Wyoming, C.K. Bowen, G. 
Schuman, and R.A. Olson, American Society of Mining and Reclamation, 
2005. Long-Term Effects of Cover Soil Depth On Plant Community 
Development for Reclaimed Mined Lands in New Mexico, B. Buchanan, M. 
Owens, J. Mexal, T. Ramsey, and B. Musslewhite, American Society of 
Mining and Reclamation, 2005.
    The same commenter also expressed concern both about the effect 
that proposed Sec.  816.22(d)(1)(i) would have on the restoration of 
premine land

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capability and the negative effect that the revised regulation would 
have on one of the basic missions of SMCRA-assuring that required 
reclamation accounts for the capability of the land prior to any mining 
to support a variety of uses. Simply stated, the commenter urged us not 
to stress vegetation diversity at the expense of the underlying land 
capabilities. The commenter also indicated that, in those areas of the 
country where valuable topsoil resources exist, regulatory authorities 
must take into account soil rooting zone reconstruction for the proper 
utilization of those soil resources. This reconstruction should be done 
in a way that would provide not only for tree productivity but also for 
use of the soil resources in a manner that would maximize the post-
mining capability of the land. Furthermore, the commenter stated that 
it is not necessary to relocate, modify distribution, or eliminate 
topsoil resources in order to ``encourage'' reforestation as a 
postmining land use. The commenter concluded by characterizing our 
stated basis for revising Sec.  816.22(d)(1)(i) as ignoring ``the 
essential nature and role of topsoil resources in land use capability 
and suitability to support a variety of uses.''
    We agree with the commenter that topsoil resources must be 
protected. The regulations at Sec.  816.22(a) and (d) continue to 
require that all topsoil must be removed and that all removed topsoil 
must be redistributed. The revised regulation at Sec.  816.22(d)(1)(i) 
simply provides the opportunity to allow redistribution of topsoil at 
variable thickness when such redistribution is appropriate to meet the 
revegetation goals identified in the permit's approved postmining land 
use plan. Under the existing regulations in Sec.  816.22(e), a 
regulatory authority can also require removal and redistribution of 
subsoil, if necessary, to comply with the revegetation requirement of 
the regulations. The proposed and final rules do not, therefore, ignore 
or negate the existing land use provisions of Sec.  816.133(a), which 
require that all disturbed areas be restored in a timely manner to 
conditions that are capable of supporting the uses they were capable of 
supporting before mining, or higher or better uses. Under these rules, 
if the regulatory authority determines that the proposed redistribution 
of topsoil in varying thicknesses would adversely affect the 
restoration of the land use capability of an area, then the regulatory 
authority need not sanction such redistribution.
    Another commenter noted that the revised regulation, which allows 
soil thickness to be varied to the extent that such variation 
encourages the specific revegetation goals identified in the permit, 
needs to include a modification and verification provision that would 
assure that variation is not a post hoc effort by the operator to avoid 
proper redistribution of topsoil. The commenter also stated that the 
rule must clarify that operators may not vary topsoil and subsoil 
redistribution in those instances where removal and reconstruction of 
soils is necessary to restore mined farmland. The commenter next argued 
that the rule's standard for justifying variation in topsoil 
replacement thickness should be more precise and measurable than merely 
providing that the variation ``help meet'' the specific revegetation 
goals identified in the permit. In this regard, the commenter stated 
that the permit should define the amount of variability in topsoil 
thickness and the chemical quality of the topsoil necessary to meet 
identified revegetation goals. Where uniform thickness is not to be the 
standard, the topsoil and subsoil redistribution plan should also 
provide appropriate literature citations supporting the proposition 
that the variation of soil thicknesses is consistent with, and 
necessary for, the success of particular species. Finally, this 
commenter asserted that, regardless of whether the soil thickness is 
intended to be relatively uniform or varied to support a particular 
species or mixture of vegetative cover on the reclaimed land, the State 
regulatory authority or OSM, acting under a Federal Program, should 
require the operator to demonstrate compliance with the soil 
redistribution requirements of Sec.  816.22(d)(1)(i). Furthermore, the 
State regulatory authority or OSM should take sufficient soil thickness 
measurements to support a finding of compliance.
    We believe that the current and revised regulations at Sec.  
816.22(d)(1)(i) adequately address the concerns underlying these 
comments. The new provisions of Sec.  816.22(d)(1)(i) that soil 
thickness may be varied to the extent that such variations help meet 
the specific revegetation goals identified in the permit clearly 
implies the need for the operator to document how topsoil will be 
redistributed prior to such redistribution. This necessary 
documentation should ensure that the redistribution of topsoil at 
varied thicknesses is not a post hoc effort to avoid proper 
redistribution. For example, if the approved postmining land use is 
cropland, then redistribution of topsoil at varied thicknesses would 
not be appropriate and operators should redistribute the topsoil in an 
approximately uniform thickness as is presently required. However, if 
the approved revegetation goals would best be met by varying topsoil 
thicknesses, then the operator must propose and the regulatory 
authority must approve these variations. While we believe that 
authoritative literature and/or test plots are appropriate sources of 
information for setting sideboards on the variation in topsoil 
thickness, we leave to the discretion of the regulatory authority 
whether to require inclusion of such literature or test plot data in 
the permit. Evaluation of the thickness of redistributed topsoil based 
on permit specifications can be done either as part of the ongoing 
inspection process or based on data submitted by the operator. In this 
regard, we anticipate that the regulatory authority will evaluate the 
redistribution of topsoil in varying thickness in the same manner that 
it currently evaluates the redistribution of topsoil in an 
approximately uniform thickness under prior Sec.  816.22(d)(1)(i).

2. Section 816.116(a)(1): Federal Approval of Revegetation Success 
Standards

What are the revisions to Sec.  816.116(a)(1)?
    We have revised Sec.  816.116(a)(1) to eliminate the requirement 
that revegetation success standards and statistically valid sampling 
techniques be included in the approved regulatory program (hereinafter 
``the approved program requirement''). The revised regulation continues 
to require that standards for success and sampling techniques for 
measuring success must be selected by the regulatory authority. Our 
proposed elimination of the approved program requirement was described 
in our 2005 Federal Register notice. As a result of comments received 
and discussed below, we are also adding a provision to Sec.  
816.116(a)(1) to clarify that the standards and techniques selected by 
the regulatory authority shall be described in writing and made 
available to the public. Later in this document we describe several 
acceptable means for making the standards and techniques available to 
the public. Final Sec.  816.116(a)(1) will read as follows, with new 
language in italics:

    (1) Standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, described in writing, and made available to the public.


[[Page 51689]]


Why are we changing our policy regarding review of State Program 
changes in success standards and sampling techniques?
    As explained in more detail below, the requirement that State 
regulatory authorities include the initial or amended success standards 
and sampling techniques for revegetation as part of their approved 
program imposes a significant and unnecessary burden both on State 
regulatory authorities and OSM. Our regulations at Sec.  816.116(a)(2) 
and (b), which will remain in effect, already specify minimum criteria 
for success standards and sampling techniques, and those criteria will 
ensure the achievement of SMCRA's goal of establishing a diverse, 
permanent, and effective vegetative cover. Section 816.116(a)(2) 
provides that the sampling techniques must use a 90-percent confidence 
interval (also known as a one-sided test with a 0.10 alpha error), 
which was discussed in the preamble to the proposed rule, and that the 
ground cover, production, or stocking must meet 90-percent of the 
success standard. Section 816.116(b) provides additional guidelines for 
particular types of ecosystems and post-mining land uses. These key 
nationwide minimum protections will remain in the regulations as 
amended, and all approved State programs must maintain counterparts to 
them.
    In our judgment, it is not a good use of State and Federal 
resources to continue requiring State and OSM revegetation experts to 
spend valuable time on preparing or assessing new State program 
amendment proposals every time it is necessary to revise or improve 
revegetation success standards. A number of considerations support this 
conclusion. First, the amount of time and resources required to go 
through the State program amendment process is significant and we think 
discourages updating the success standards and sampling techniques. Our 
processing of program amendments takes an average of about four and a 
half months, ranging from two and a half to seven months, but one 
recent amendment took twenty months from proposal to final approval. 
The time and resources spent on the program amendment process, 
moreover, are in addition to those the States must devote to preparing 
proposed program amendments and to responding to any of our inquiries. 
Although we lack complete data on how great a burden this regulatory 
requirement imposes on the States, the example of North Dakota, which 
follows, shows that the cumulative costs in time and talent can be 
quite large. The present component of the North Dakota State program 
for revegetation success standards and sampling techniques is now more 
than 100 pages long. North Dakota has repeatedly had to submit proposed 
amendments for our approval not only for substantive changes in 
standards but even for minor wording changes, such as the change in the 
name of a U.S. Department of Agriculture bureau from the ``Soil 
Conservation Service'' to the ``Natural Resources Conservation 
Service.'' On this basis alone, we think that the current requirement 
may well be discouraging State regulatory authorities from developing 
or implementing the latest, most appropriate science and technologies. 
70 FR 13076, March 17, 2005. This apparent obstacle to the timely 
development of new science and technologies also runs counter to one of 
the main concerns behind our 1983 rulemaking: That the States needed 
significant flexibility to tailor standards and sampling techniques to 
local conditions. See 47 FR 40140, September 2. We continue to want to 
encourage responsible innovation in this area. As we mentioned in the 
preamble to our 2005 proposed rule, we have been working with western 
States to develop new success standard resources, innovative 
statistical tools, and techniques using computers and satellite-based 
remote sensing technologies to better evaluate conditions of vegetative 
diversity and cover than is possible using traditional sampling 
methods, particularly in locations with naturally sparse vegetation. In 
the Appalachian Region, our agency is working with scholars and the 
State of West Virginia on the use of the plate method for evaluating 
herbaceous productivity on reclaimed lands. We believe that removal of 
the requirement in Sec.  816.116(a)(1) for including these standards 
and techniques in the approved program will eliminate an unnecessary 
obstacle to appropriate and timely technological innovation.
    Second, we recognize that, since the basic framework of the 
existing rule was first promulgated in 1983, the vast majority of State 
regulatory programs have matured. Our experience with the State 
regulatory authorities over the years has shown that they now have 
sufficient expertise to devise or modify their success standards and 
sampling techniques to incorporate new scientific, technological, or 
other information in a manner that assures proper revegetation of 
disturbed areas. In most instances, we have not had to engage in 
substantial re-writing of changes to State revegetation success 
standards or sampling techniques during the Federal approval process. 
However, even though we will no longer be approving State program 
amendments on those issues, our revegetation experts will remain 
available to consult with the State regulatory authorities on issues 
including success standards and sampling techniques. Thus, our agency 
is not withdrawing resources that have been beneficial to the States as 
they pursue SMCRA's goal of successful revegetation.
    Third, and perhaps most importantly, the removal of the approved 
program requirement from Sec.  816.116(a)(1) leaves no regulatory void. 
As previously noted, the nationwide minimum requirements for 
revegetation success and sampling techniques will continue to apply to 
the State regulatory authorities and indirectly to the permits that 
those regulatory authorities issue. Thus, the revision to Sec.  
816.116(a)(1) will not cause greater divergence among the States that 
are already required to meet the minimum nationwide requirements of 
Sec.  816.116(a)(2) and (b). Even in those States that by State law are 
not allowed to be more stringent than OSM's regulations, the minimum 
nationwide requirements of Sec.  816.116(a)(2) and (b) continue to 
apply. While complying with those nationwide requirements, the State 
regulatory authorities will, under revised Sec.  816.116(a)(1), also be 
able to respond to new or localized scientific, technical, and land use 
information in a timelier manner, without awaiting the formal process 
of OSM approval. Furthermore, there are avenues besides our approval of 
success standards and sampling techniques by which the public and we 
may assure compliance by the State regulatory authorities with 
nationwide revegetation requirements. The success standards and 
sampling techniques will have to be included in each permit issued by 
the State regulatory authorities. Thus, contrary to the assertions of 
one commenter, the removal of this requirement will not lead to 
compromises in the effective implementation of SMCRA's goal of proper 
revegetation. In addition, ``any person with an interest which is or 
may be adversely affected may request a hearing'' on any permit issued 
by a State regulatory authority. Sec.  775.11(a). When a permittee 
applies for final bond release, the surface owner must be notified and 
given an opportunity to participate in the bond-release inspection. 
Sec.  800.40(b)(1). Before final bond release, any person with a valid 
legal interest may file objections and

[[Page 51690]]

request a public hearing. Sec.  800.40(f). The State's regulatory 
program must also provide for administrative hearings and judicial 
review. Sec. Sec.  775.12(b) and 775.13(b). In addition, if, in 
conducting an oversight inspection, we were to find a surface coal 
mining operation in violation of the nationwide minimum requirements, 
we would take appropriate action. See Sec.  842.11(a)(1), 
(b)(1)(iii)(A). If the State appears to be including success standards 
and sampling techniques in its permits that are not in compliance with 
the nationwide minimum requirements of Sec.  816.116(a)(2) and (b), we 
can initiate proceedings that could ultimately lead to substitution of 
direct Federal enforcement of the revegetation requirements, or 
withdrawal of the Secretary's approval of the State program in whole or 
in part. Sec.  733.12(a), (g). Thus, the public's interest in proper 
revegetation remains protected, and the State regulatory authorities 
have incentive to keep their success standards and sampling techniques 
in compliance with the nationwide minimum requirements that have 
applied since 1983.
    A final reason for removing the requirement that revegetation 
success standards and sampling techniques be included in the approved 
program is that this requirement is inconsistent with the approach we 
have taken in other areas. States do not have to include in their 
approved programs all of the specific techniques and standards they use 
to assess whether other SMCRA requirements have been met. See Sec.  
780.22 (requiring submission of the geologic data and overburden 
characteristics), Sec.  780.21(d) (requiring assessment of the probable 
hydrologic consequences of mining), and Sec.  780.21(g) (requiring a 
cumulative hydrologic impact assessment showing, inter alia, that the 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area but not defining the term 
``material damage''). Instead, the regulatory authorities, both States 
and OSM, have effectively addressed the standards to be used in these 
determinations or submissions by developing guidance documents that are 
not required to be in the approved regulatory programs. Moreover, we do 
not impose the requirement to promulgate success standards and sampling 
techniques upon ourselves when we act as a regulatory authority. None 
of the three Federal programs with active mining include specific 
vegetation sampling techniques. The Federal program for the State of 
Washington and the Federal program for Indian lands do not include 
specific revegetation success standards; the only Federal program with 
active mining that includes such requirements is the regulatory program 
for Tennessee. Sec. Sec.  942.816(f) and 942.817(e). We have no 
compelling justification for continuing such an inconsistent approach, 
particularly since there is no reason to believe that the different 
requirements of State and Federal programs have resulted in significant 
divergence of the actual success standards or sampling techniques in 
use, or in the actual success of revegetation on mined sites. There is 
thus no principled reason to believe that the States cannot effectively 
implement revegetation success standards and sampling techniques 
without having to go through the formal promulgation process imposed by 
the prior approved program requirement of Sec.  816.116(a)(1).
What were the comments submitted on our proposed revisions to Sec.  
816.116(a)(1)?
    In response to our proposed rule, we received comments from 16 
commenters supporting removal of the approved program requirement from 
Sec.  816.116(a)(1). Of the 16 commenters, five were State regulatory 
authorities, one was a State coal association, six were coal companies, 
and four were industry associations. In general, these commenters based 
their support on the reduced regulatory burden they affirmed would 
result from eliminating the (a)(1) requirement. They also stated that 
the proposal would result in increased flexibility and improve their 
ability to make use of potential new technologies that may become 
available. Specific comments stated that the current process provides 
little incentive to continue or expand research into new and innovative 
methods, often results in unnecessary delays in State implementation of 
changes to these policies that are based on a State's professional 
judgment, and flies in the face of State primacy. These commenters 
stated that the revised regulation will better enable States to stay 
abreast of technological advances and to tailor success standards to 
local conditions, will allow use of alternative parameters for 
revegetation success, such as measurement of a site index, without 
submitting program amendments. Furthermore, the revised regulations 
will still support strict revegetation standards while allowing States 
to respond to improvements in sampling methodologies and technological 
advances.
    We agree with these commenters and are proceeding with the 
rulemaking as proposed. The revised regulation will give the States the 
flexibility they need to implement new technologies without having to 
go through the Federal rulemaking process of amending their approved 
programs. As discussed above, we are also adding a provision to Sec.  
816.116(a)(1) to clarify that the standards and techniques selected by 
the regulatory authority must be described in writing and made 
available to the public. This last provision will ensure that all 
interested parties can readily find out all the options available in 
their jurisdiction for evaluating revegetation success.
    Four of the commenters that supported the proposed revision to 
Sec.  816.116(a)(1) noted that the revision, and the regulation as a 
whole, does not reflect that standards of success and statistically 
valid sampling techniques for measuring success are actually developed 
jointly by the permit applicant and regulatory authority and 
incorporated as part of the reclamation plan approved as part of the 
permit. These commenters indicated that normally the operator proposes 
such standards and sampling techniques prior to conducting baseline 
vegetation studies. The commenters agreed that this is appropriate, as 
the operator is most familiar both with the plant communities that will 
be affected by the operation and with the sampling methods needed to 
accurately describe and measure these plant communities. The commenters 
indicated that the standards and sampling techniques will become 
subject to evaluation in the permitting process and will be ultimately 
codified in the permit or letters of concurrence from regulatory 
authorities. The commenters further noted that through this process 
sampling methods and success standards are not ``selected'' 
unilaterally by the regulatory authority. Accordingly, the commenters 
suggested that preamble language of the Sec.  816.116(a)(1) revision be 
improved by emphasizing the current process by which a number of the 
State regulatory authorities and their permittees jointly develop 
success standards and sampling techniques.
    We are retaining the current requirement of Sec.  816.116(a)(1) 
that the regulatory authority select revegetation success standards and 
statistically valid sampling techniques. The selected success standards 
and sampling techniques will be put in writing and be available to the 
public and, as before, will be used by operators in developing their 
permit applications. The manner

[[Page 51691]]

in which a regulatory authority goes about selecting the success 
standards and statistically valid sampling techniques that it will 
allow operators to use in evaluating revegetation success is up to the 
regulatory authority. That authority can, as suggested by the 
commenters, select the success standards and sampling techniques in 
consultation with operators and/or with assistance from academia. 
However, selected success standards and sampling techniques must meet 
the requirements of Sec.  816.116(a)(2) and (b) and they must be put in 
writing and made available to the public. It is from these identified 
success standards and sampling techniques that the operators must 
choose the specific standards and techniques included in their 
individual permit applications. This procedure will ensure no less 
consistent revegetation success evaluations than that afforded under 
the prior rule.
    We received comments from five commenters opposed to the proposed 
revision deleting the approved program requirement from Sec.  
816.116(a)(1). A large percentage of these comments focused on the 
absence of any provision in the proposed rule that would provide for 
public review of the success standards and sampling techniques selected 
by the regulatory authority. More specifically, these comments raised 
concerns about loss of public review; lack of enforceable success 
standards; inability of the public to review permits if the success 
standards and sampling techniques are not part of the approved program; 
and potential conflict among States, operators, and landowners over 
acceptable standards and sampling techniques. Other commenter concerns 
focused on the lack of support for changing a regulation that had been 
in place since 1983 and the inability of Federal oversight to prevent 
problems. These commenters also stated that the burden of OSM's lengthy 
timeframes for processing State amendments is self-imposed, that 
flexibility already exists within the Federal regulations for States to 
develop success standards and sampling techniques to fit local 
conditions, that inconsistent application of success standards and 
sampling techniques will occur, and that the current process does not 
stifle evaluation or utilization of new technologies. The specific 
comments received and our responses are discussed below.
    All five of the commenters opposing removal of the approved program 
requirement from Sec.  816.116(a)(1) expressed concern with the loss of 
public review of selected success standards and statistically valid 
sampling techniques if the standards and techniques were no longer 
included in the State approved program. These commenters declared that 
the removal of success standards and sampling techniques from the State 
approved programs would result in information not being available to 
the public. One of the commenters asserted that OSM, by adopting this 
change, was taking the attitude that the only parties at interest in 
these matters were the companies and the States. This commenter claimed 
that success standards for reclamation are an extremely important 
source of public information and that, under the proposed rule, it 
would be more difficult for the public to find the success standards 
approved for a given permit. The commenter indicated that the inclusion 
of important matters in ``internal guidance documents'' and ``technical 
standards'' alone is not satisfactory. The commenter further questioned 
how, under the proposed rule, the public would know if there was any 
internal consistency within and between States as to selected success 
standards or sampling techniques. Finally, the commenter asserted that 
under the proposed rule, as under the provisions for public review 
during permitting at Sec.  773.6(a) and (b)(2), and as under the 
provisions for public involvement in bond release at Sec.  800.40(b)(1) 
and (f), OSM and the States seemingly want the public to find the 
problems that OSM and the States have missed. The commenter concluded 
that it would be hard for the public to find these problems if the 
success standards and sampling techniques are not in the State 
regulations.
    Two of these commenters further noted that removal of the approved 
program requirement from Sec.  816.116(a)(1) eliminates the ability of 
the public to comment on the success standards and sampling techniques 
proposed by the States for inclusion in their approved programs.
    In partial response to these commenters' concerns, we are adding 
the express requirement in final Sec.  816.116(a)(1) that the standards 
and techniques selected by the States be in writing and made available 
to the public. We did not include this requirement in the 2005 proposed 
rule. Under the prior version of Sec.  816.116(a)(1), States were 
required to include selected standards and techniques in their approved 
programs but were not required to include them in the rules of their 
approved programs. Rather, States had the option of including them in 
any element of their approved programs including guidelines, technical 
procedures, policy materials, etc. States will continue to have the 
option of including selected success standards and sampling techniques 
in the same range of formats, but must ensure their public 
availability. For example, States could make this information available 
to the public at places where other documents such as permit 
applications are also made available for public review. Or the States 
could further make it available to all interested parties either by 
mail or through the agency's web site. As before, States will continue 
to have the option of including selected standards and techniques in 
their approved program regulations. Whatever the formats chosen by the 
States, final Sec.  816.116(a)(1) ensures the public access to and, 
therefore, the ability to review the selected standards and techniques. 
Furthermore, there will continue to be ample opportunity on a permit-
specific basis for public review of the proposed use of selected 
standards and sampling techniques both during the permitting process as 
well as at bond release. Because Sec.  780.18(b)(5) requires each 
permit application to identify its proposed success standards and 
sampling techniques, this information is also available for public 
review. Parties who have an interest that may be adversely affected by 
a decision on the application may further comment on these standards 
and sampling techniques under Sec.  773.6(a) and (b)(2). These 
provisions ensure that the public will continue to have the ability to 
review the success standards and sampling techniques for every mine 
before operations begin. In addition, any persons with valid legal 
interests can also object to bond release under Sec.  800.40(f) should 
they believe the operator has not used the approved success standard or 
not followed the approved sampling techniques.
    Three of the five commenters opposing removal of the approved 
program requirement from Sec.  816.116(a)(1) warned against the 
disputes that they asserted would inevitably arise between States and 
permit applicants/operators and between operators and landowners over 
what constitutes appropriate success standards and/or sampling 
techniques. The first of these three commenters admitted that the 
proposed revision would provide flexibility to State programs and would 
allow both States and operators to take advantage of new technology, 
sample methods, and statistics. This commenter also conceded that the 
approved program requirement of Sec.  816.116(a)(1) was unnecessarily 
burdensome in terms of

[[Page 51692]]

the time and resources required by the State program amendment process 
and that this burden discourages updating revegetation standards. 
Nonetheless, this commenter asserted that any flexibility gained by the 
proposed revision to 816.116(a)(1) would not offset the endless 
disputes that would inevitably arise between States and permit 
applicants over what constitute acceptable methods and statistics.
    While we believe that this commenter overstates the potential for 
disputes between States and permit applicants under proposed Sec.  
816.116(a)(1), final Sec.  816.116(a)(1) expressly requires that all 
State-selected standards and techniques be in writing and made 
available to the public. This new provision should minimize disputes 
between a State and applicants over the range of success standards and 
sampling techniques available within that State. As under the prior 
rule, the permit applicant will be able to choose only from among 
available success standards and sampling techniques previously selected 
by the State. As under the prior rule, moreover, an applicant's 
proposed use of a selected standard or technique will be subject to 
State approval. Importantly, the potential for disputes between the 
regulatory authority and permit applicant should not be any greater 
than under the prior rule.
    Two of the five commenters expressed additional concerns over the 
potential conflict that might arise between landowners and operators as 
a result of the proposed revision to Sec.  816.116(a)(1). One of these 
two commenters also declared that the deletion of the approved program 
requirement would potentially place the landowner and operator in 
conflict at the time of bond release due to the use of measurement 
standards that lack a robust scientific basis.
    We do not believe that the deletion of the approved program 
requirement from Sec.  816.116(a)(1) will materially raise the 
potential for conflict between the landowner and operator at the time 
of bond release. As stated earlier, the provisions of Sec.  
816.116(a)(2) and (b) will continue to establish clear criteria and 
requirements for the success standards and sampling techniques that may 
be selected by the States under Sec.  816.116(a)(1). All approved 
programs have counterparts to Sec.  816.116(a)(2) and (b). Accordingly, 
the success standards and statistically valid sampling techniques 
selected by a State under final Sec.  816.116(a)(1) will, for the 
purposes of establishing revegetation success at bond release, have the 
same robust scientific basis as the standards and techniques selected 
by the State under the prior rule.
    One of the commenters opposing removal of the approved program 
requirement from Sec.  816.116(a)(1) suggested that, without including 
success standards and measuring techniques in the approved State 
program, operators may simply choose not to comply with selected 
standards and techniques.
    With regard to this concern, we note that all State approved 
programs have counterparts to Sec.  780.18(b)(5) requiring that 
applications for a permit contain a plan for revegetation, including 
measures to determine the success of revegetation. Once approved by the 
regulatory authority, these and all other permit terms are binding and 
enforceable.
    Still another commenter asserted that the reasons given by us for 
this removal do not support abrupt departure from more than two decades 
of regu