Stream Buffer Zone and Related Rules, 62664-62668 [E9-28513]

Download as PDF 62664 Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / Proposed Rules DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Parts 780, 784, 816, and 817 [Docket ID OSM–2009–0009] RIN: 1029–AC63 Stream Buffer Zone and Related Rules WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Advance notice of proposed rulemaking; notice of intent to prepare a supplemental environmental impact statement (SEIS). SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are seeking comments on our intention to revise our regulations concerning the conduct of mining activities in or near streams. We have determined that revision of the stream buffer zone (SBZ) rule published on December 12, 2008, is necessary to implement the interagency action plan that the Administration has developed to significantly reduce the harmful environmental consequences of surface coal mining operations in Appalachia, while ensuring that future mining remains consistent with Federal law. In this notice, we describe and seek comment on the alternatives that we are considering for revision of the SBZ rule. In addition, we request your help in identifying significant issues, studies, and specific alternatives that we should consider in the SEIS for this rulemaking initiative. The June 11, 2009, memorandum of understanding (MOU) implementing the interagency action plan also calls for us to consider whether revisions to other OSM regulations (including, at a minimum, approximate original contour requirements) are needed to better protect the environment and the public from the impacts of Appalachian surface coal mining. We have identified addition of a definition of ‘‘material damage to the hydrologic balance’’ as one such possibility. We invite comment on that option as well as whether there are other OSM regulations that could be revised to implement this provision of the MOU. DATES: To ensure consideration, we must receive your comments on or before December 30, 2009. ADDRESSES: You may submit comments by any of the following methods, although we request that you use the Federal e-rulemaking portal if possible: • Federal e-Rulemaking Portal: http:// www.regulations.gov. The document has VerDate Nov<24>2008 14:59 Nov 27, 2009 Jkt 220001 been assigned Docket ID: OSM–2009– 0009. Follow the online instructions for submitting comments. • Mail, hand-delivery, or courier to: Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 252–SIB, 1951 Constitution Avenue, NW., Washington, DC 20240. Please include the Docket ID (OSM–2009–0009) with your comment. Comments that we receive after the close of the comment period (see DATES) or sent to an address other than those listed above will not be considered or included in the docket. Please submit all comments and related materials that you wish us to consider. We are not able to consider comments and materials that were previously submitted in connection with a different rulemaking. For information on the public availability of comments, see Part VII of this preamble, which is entitled ‘‘Will comments received in response to this notice be available for review?’’ FOR FURTHER INFORMATION CONTACT: Dennis Rice, Division of Regulatory Support, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave., NW. MS 202–SIB, Washington, DC 20240; Telephone 202– 208–2829. SUPPLEMENTARY INFORMATION: Table of Contents I. Why Are We Publishing This Notice? II. What Does SMCRA Say About Streams? III. What Provisions of SMCRA Form the Basis for the SBZ Rule? IV. What Is the History of the SBZ Rule? V. What Are the Major Provisions of the 2008 Rule? VI. How Do We Plan To Revise Our Regulations? VII. Will Comments Received in Response to This Notice Be Available for Review? I. Why Are We Publishing This Notice? On December 12, 2008 (73 FR 75814– 75885), we published a final rule modifying the circumstances under which mining activities may be conducted in or near perennial or intermittent streams. That rule, which this notice refers to as the 2008 rule, took effect January 12, 2009. A total of nine organizations challenged the validity of the rule in two complaints filed on December 22, 2008, and January 16, 2009: Coal River Mountain Watch, et al. v. Salazar, No. 08–2212 (D.D.C.) (‘‘Coal River’’) and National Parks Conservation Ass’n v. Salazar, No. 09– 115 (D.D.C.) (‘‘NPCA’’). In NPCA, the Government filed a motion on April 27, 2009, for voluntary remand and vacatur of the 2008 rule. The motion was based on Secretary of PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 the Interior Ken Salazar’s determination that OSM erred in failing to initiate consultation with the U.S. Fish and Wildlife Service under subsection 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), to evaluate possible effects of the 2008 rule on threatened and endangered species. Granting of the Government’s motion likely would have had the effect of reinstating the 1983 version of the SBZ rule. In Coal River, the Government filed a motion on April 28, 2009, to dismiss the complaint as moot if the court granted the motion in NPCA. On June 11, 2009, the Secretary of the Department of the Interior, the Administrator of the U.S. Environmental Protection Agency (EPA), and the Acting Assistant Secretary of the Army (Civil Works) entered into a memorandum of understanding (MOU)1 implementing an interagency action plan designed to significantly reduce the harmful environmental consequences of surface coal mining operations in six Appalachian States,2 while ensuring that future mining remains consistent with Federal law. Among other things, the MOU required that OSM develop guidance clarifying how the 1983 SBZ rule would be applied to reduce adverse impacts on streams if the court granted the Government’s motion in NPCA for remand and vacatur of the 2008 SBZ rule. However, on August 12, 2009, the court denied the Government’s motion in NPCA, holding that, absent a ruling on the merits, significant new evidence, or consent of all the parties, a grant of vacatur would allow the government to improperly bypass the procedures set forth in the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., for repealing an agency rule. On the same date, the court denied the government’s motion to dismiss in Coal River. The Secretary of the Interior remains committed to reducing the adverse impacts of Appalachian surface coal mining operations on streams. Accomplishing that goal will involve revision or repeal of certain elements of the 2008 rule. The rulemaking process will adhere to the requirements of the Administrative Procedure Act, including any applicable notice and comment requirements, consistent with the court’s decision in NPCA. The notice that we are publishing today is the first step in the rulemaking 1 The MOU can be viewed online at http:// www.osmre.gov/resources/ref/mou/ ASCM061109.pdf. 2 Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. E:\FR\FM\30NOP3.SGM 30NOP3 Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / Proposed Rules WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 process. We are publishing this notice to seek public input into how the 2008 rule should be revised to better protect streams and implement the MOU. The MOU identifies the stream buffer zone rule and our regulations concerning approximate original contour as two rules that we will consider revising. In this notice, we describe options that we are considering for revision of the stream buffer zone rule. We invite you, the public, to comment on those options, to suggest other options, and to identify other provisions of our regulations that should be revised to better protect the environment and the public from the impacts of Appalachian surface coal mining. After considering the comments, we intend to move expeditiously to develop a proposed rule that will further clarify how streams must be protected within the framework established by SMCRA. At the appropriate time, we also will initiate consultation with the U.S. Fish and Wildlife Service under subsection 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), to evaluate possible effects of a new rule on threatened and endangered species. II. What Does SMCRA Say About 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) 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.’’ • 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 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.’’ The term ‘‘natural water courses’’ includes all types of streams—perennial, intermittent, and ephemeral. • Section 515(c)(4)(D) provides that, in approving a permit application for a mountaintop removal operation 3, the 3 Under section 515(c)(2) of SMCRA, a mountaintop removal operation is a surface coal VerDate Nov<24>2008 14:59 Nov 27, 2009 Jkt 220001 regulatory authority must require that ‘‘no damage will be done to natural watercourses.4 ’’ 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.’’ • Section 516(c) requires the regulatory authority to suspend underground coal mining adjacent to permanent streams if an imminent danger to inhabitants of urbanized areas, cities, towns, or communities exists. III. What Provisions of SMCRA Form the Basis for the SBZ Rule? Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA served as the basis for all four versions (1977, 1979, 1983, and 2008) of the stream buffer zone rule with respect to surface mining activities. 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 minesite 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. * * * * * mine that will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, and capable of supporting certain specified postmining land uses. This term is a subset of the various types of mining commonly referred to as mountaintop mining. 4 The regulations implementing this provision interpret the prohibition as applying only to natural watercourses ‘‘below the lowest coal seam mined.’’ See 30 CFR 824.11(a)(9). PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 62665 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. 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. Commenters responding to this notice should explain how their suggestions concerning revision of the SBZ rule are consistent with these statutory provisions. IV. What Is the History of the SBZ Rule? We have had an SBZ rule in place since 1977, but the rule and its application did not receive widespread attention until the 1990s when concerns arose over the environmental impacts of large-scale surface coal mining operations in central Appalachia. Surface mining in this mountainous area of steep slopes and narrow valleys produces more spoil material than can be returned to the site of the excavation created by the mining operation. The excess spoil material is most commonly placed in the valleys adjacent to the mine excavation. These valleys often contain headwater streams. In Appalachia, intermittent streams begin in watersheds as small as 15 acres and perennial streams begin in watersheds as small as 41 acres, according to a study conducted by the U.S. Geological Survey.5 The 1983 version of the SBZ rule prohibited disturbance of land within 100 feet of an intermittent or perennial stream unless the regulatory authority found that the conduct of mining activities ‘‘closer to, or through, such a stream’’ would not cause or contribute to the violation of State or Federal water quality standards and would not adversely affect the water quantity or 5 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. E:\FR\FM\30NOP3.SGM 30NOP3 62666 Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / Proposed Rules quality or other environmental resources of the stream. The 1983 rule has been the subject of litigation.6 For a more detailed history of the SBZ rule, please refer to the discussion in the preamble to the 2008 rule (73 FR 75816– 75818, December 12, 2008). WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 V. What Are the Major Provisions of the 2008 Rule? The 2008 rule replaced the 1983 version of the SBZ rule at 30 CFR 816.57(a)(1) and 817.57(a)(1), which prohibited disturbance of land within 100 feet of a perennial or intermittent stream unless the regulatory authority authorized the proposed activities after finding that conducting those activities ‘‘closer to, or through, such a stream’’ would not cause or contribute to the violation of applicable State or Federal water quality standards and would not adversely affect the water quantity or quality or other environmental resources of the stream. The 2008 rule replaced that requirement with new provisions at 30 CFR 780.28(d) and (e) and 784.28(d) and (e). Under the 2008 rule at 30 CFR 780.28(d) and 784.28(d), the conduct of activities within a perennial or intermittent stream (with the exception of activities conducted in connection with construction of a stream-channel diversion or in connection with a coal preparation plant located outside the permit area of a mine) is prohibited unless the regulatory authority finds that avoiding disturbance of the stream is not reasonably possible and that the plans submitted with the application meet all applicable requirements in paragraphs (b) and (c) of 30 CFR 816.57 or 817.57. Among other things, those paragraphs require that, to the extent possible, the operator use the best technology currently available to prevent the contribution of suspended solids to streamflow or runoff outside the permit area and to minimize 6 In 1999, the U. S. District Court for the Southern District of West Virginia held that the West Virginia version of the SBZ rule prohibited the creation of fills that bury streambeds because (1) nothing in the State or Federal rules supports an interpretation that would exempt the regulatory authority from its obligation to make the buffer zone findings for the segment of the stream that lies within the footprint of the fill, and (2) burying a stream segment would impermissibly destroy that segment. Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D. W. Va. 1999). That decision was overturned on appeal on other grounds (lack of jurisdiction under the Eleventh Amendment to the U. S. Constitution). Bragg v. West Virginia Coal Ass’n, 248 F.3d 275 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002). In a second case, the appellate court stated in its opinion that it is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 442–443 (4th Cir. 2003). VerDate Nov<24>2008 14:59 Nov 27, 2009 Jkt 220001 disturbances and adverse impacts on fish, wildlife, and related environmental values. Under 30 CFR 780.28(d)(2) and 784.28(d)(2), every permit approving disturbance of a perennial or intermittent stream must include a permit condition requiring that the permittee demonstrate compliance with the Clean Water Act before conducting any activities that require authorization or certification under the Clean Water Act. Under the 2008 rule at 30 CFR 780.28(e) and 784.28(e), activities on the surface of land within 100 feet of a perennial or intermittent stream are prohibited unless the permit applicant demonstrates, and the regulatory authority finds, either that it is not reasonably possible to avoid disturbance of the buffer zone or that avoidance of disturbance is not necessary to meet the fish and wildlife and hydrologic balance protection requirements of the regulatory program. The regulatory authority also must find that the plans submitted by the applicant demonstrate that the operation will, to the extent possible, use the best technology currently available to prevent the contribution of suspended solids to streamflow or runoff outside the permit area and to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values. Under the 2008 rule at 30 CFR 816.57(a)(1) and (b) and 817.57(a)(1) and (b), certain activities are exempt from the buffer zone requirements of 30 CFR 780.28(e) and 784.28(e) to the extent that the regulatory authority has approved filling the stream segment under 30 CFR 780.28(d) or 784.28(d) or diverting the stream segment under 30 CFR 816.43(b) or 817.43(b). In other words, if a stream segment will cease to exist in its original location as a result of mining activities, the rule provides that there is no need to protect the buffer zone for that stream segment. The activities to which this exemption applies include stream-channel diversions, construction of stream crossings, construction of sedimentation pond embankments, and construction of excess spoil fills and coal mine waste disposal facilities. The 2008 rule provides that mining operations must return as much of the overburden as possible to the excavation created by the mine. See 30 CFR 780.35(a)(1) and 784.19(a)(1). The 2008 rule also requires that mine operators minimize the volume of excess spoil generated by mining operations and design and construct fills to be no larger than needed to accommodate the anticipated volume of excess spoil to be PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 generated. See 30 CFR 780.35(a)(2) and 784.19(a)(2). The 2008 rule further provides that the operator must avoid constructing excess spoil fills, refuse piles, or slurry impoundments in perennial and intermittent streams to the extent possible. When avoidance is not possible, the rule requires that the operator identify a range of reasonable alternatives for disposal and placement of the excess spoil or coal mine waste, evaluate the environmental impacts of each alternative, and select the alternative with the least overall adverse impact on fish, wildlife, and related environmental values. See 30 CFR 780.25(d)(1), 780.35(a)(3), 784.16(d)(1), and 784.19(a)(3). The 2008 rule states 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. See 30 CFR 780.28(f)(2), 784.28(f)(2), 816.57(a)(2), and 817.57(a)(2). In particular, the rule requires that the SMCRA permit include a condition prohibiting any disturbance of a perennial or intermittent stream before obtaining all necessary Clean Water Act authorizations. See 30 CFR 780.28(d)(2) and 784.28(d)(2). VI. How Do We Plan To Revise Our Regulations? We intend to revise our regulations in a manner consistent with the provisions of SMCRA and the MOU. Part III.A. of the MOU provides that we will review our ‘‘existing regulatory authorities and procedures to determine whether regulatory modifications should be proposed to better protect the environment and public health from the impacts of Appalachian surface coal mining.’’ It further provides that, at a minimum, we will consider revisions to the stream buffer zone rule and our requirements concerning approximate original contour. This notice focuses on revisions to the stream buffer zone rule, but we invite commenters to suggest other provisions of our regulations that could or should be revised to accomplish the objectives of the MOU. To comply with the National Environmental Policy Act, we intend to prepare a supplement to the final environmental impact statement (FEIS) for the 2008 rule (OSM–EIS–34).7 The 7 OSM–EIS–34, ‘‘Proposed Revisions to the Permanent Program Regulations Implementing the E:\FR\FM\30NOP3.SGM 30NOP3 WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / Proposed Rules supplement (SEIS) will include and discuss additional information on the impacts of mining on streams and related resources. It also will evaluate additional action alternatives in detail, while incorporating by reference the programmatic analyses in the FEIS, to the extent appropriate. This approach will enable us to meet our National Environmental Policy Act obligations in a cost-effective and timely manner. As provided in 40 CFR 1502.9(c)(4), we will prepare and process the SEIS in the same fashion as a standard environmental impact statement, exclusive of scoping. In other words, we will prepare both a draft SEIS, which will be subject to public comment, and a final SEIS. Any proposed revisions of our rules must be consistent with the provisions of SMCRA, as discussed in Parts II and III of this notice. We also note that section 102(f) of SMCRA 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.’’ Comments that you provide in response to this advance notice will help us determine which alternatives will be developed in the SEIS and the proposed rule. We encourage commenters to be as detailed as possible and to explain how any suggested regulatory changes are consistent with SMCRA and the rulemaking authority that we have under SMCRA. The alternatives described below are not necessarily mutually exclusive. After evaluating the comments received, we may decide not to propose some of the alternatives listed here. We also may decide to propose some combination of the listed alternatives, variations of those alternatives, new alternatives suggested by commenters, or new alternatives that we develop. The public will have another opportunity to comment when the proposed rule is published. We are considering the following alternatives for revising the stream buffer zone rule and related rules: 1. Proposing to repeal the existing SBZ rules (30 CFR 780.28, 784.28, 816.57, and 817.57) and replace them with the 1983 version of the SBZ rule at 30 CFR 816.57 and 817.57, with Surface Mining Control and Reclamation Act of 1977 Concerning the Creation and Disposal of Excess Spoil and Coal Mine Waste and Stream Buffer Zones,’’ is available on the Internet at http://www.regulations.gov. The Document ID number is OSM–2007–0008–0553. A copy of the FEIS is also available for inspection in the South Interior Building, Room 101, 1951 Constitution Avenue, NW., Washington, DC 20240. VerDate Nov<24>2008 14:59 Nov 27, 2009 Jkt 220001 conforming revisions to the signs and markers requirements of 30 CFR 816.11 and 817.11. This alternative also would include a proposal to either repeal or make conforming revisions to 30 CFR 780.25(d)(1), 780.35(a)(3), 784.16(d)(1), and 784.19(a)(3), because those provisions contain permitting requirements specific to applications that propose to construct coal mine waste impoundments, refuse piles, or excess spoil fills in or within 100 feet of perennial or intermittent streams. In addition, this alternative could include a proposal to replace the 2008 version of the stream-channel diversion requirements of 30 CFR 816.43 and 817.43 with the 1983 version of those requirements, which includes a reference to the SBZ rule. We request comment on whether reinstatement of the language in the 1983 SBZ rule would be appropriate, and, if so, how that language should be interpreted to promote stream protection in a way that is fully consistent with SMCRA. 2. Proposing to apply the prohibitions and restrictions of the stream buffer zone rule to all segments of all perennial and intermittent streams and to the surface of all lands within 100 feet of those streams. One variation of this alternative could be to establish a rebuttable presumption that the placement of excess spoil or coal mine waste in an intermittent or perennial stream is prohibited because it would result in an unacceptable level of environmental damage. Another variation could be to prohibit placement of excess spoil or coal mine waste in perennial and intermittent streams and restrict placement in ephemeral streams. 3. Proposing to revise 30 CFR 816.57 and 817.57 to provide that the SMCRA regulatory authority may authorize mining activities in a perennial or intermittent stream, or on the surface of land within 100 feet of such a stream, only if those activities (1) would not violate Sections 401 and 402 of the Clean Water Act; (2) would not violate Section 404 of the Clean Water Act; (3) would not significantly degrade the water quantity or quality or other environmental resources of the stream; and (4) would minimize disturbances and adverse impacts on fish, wildlife, and other related environmental values of the stream to the extent possible using the best technology currently available. A variation on this option would revise criterion (3) to prohibit significant degradation of the water quantity or quality or other environmental resources of the stream ‘‘outside the permit area.’’ PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 62667 4. Proposing numerical limits on fill size, the percentage of a watershed disturbed by mining operations at any one time, or total stream miles covered by fills in each watershed. The 2005 final programmatic environmental impact statement on mountaintop mining and valley fills found that existing studies provided an insufficient basis to determine a bright-line threshold of the nature described in this alternative.8 We invite comment on whether scientific information is now available that might provide a sufficient basis for establishing numerical limits of the nature described in this alternative. We encourage commenters to suggest specific thresholds, together with the rationale for those thresholds. 5. Proposing a quantitative or qualitative threshold beyond which further damage to water quality or aquatic life in a particular watershed would be prohibited. We encourage commenters to identify potential thresholds and explain why those thresholds should be established. We also encourage commenters to discuss how thresholds could be harmonized with Clean Water Act requirements and the Clean Water Act permitting process. 6. Proposing to adopt by regulation the watershed approach described in the following language from the preamble to the 2008 rule 9: A watershed approach expands the informational and analytic basis of site selection decisions to ensure impacts are considered on a watershed scale rather than only project by project. The idea being locational factors (e.g., hydrology, surrounding land use) are important to evaluating the indirect and cumulative impacts of the project. Watershed planning efforts can identify and prioritize where preservation of existing aquatic resources are important for maintaining or improving the quality (and functioning) of downstream resources. The objective of this evaluation is to maintain and improve the quantity and quality of the watershed’s aquatic resources and to ensure water quality standards (numeric and narrative criteria, antidegradation, and designated uses) are met in downstream waters. We invite comment on how we could best incorporate this approach into our regulations in a manner that is consistent with SMCRA. 7. Proposing a definition of the term ‘‘material damage to the hydrologic balance.’’ Section 510(b)(3) of SMCRA, 30 U.S.C. 1260(b)(3), prohibits the 8 ‘‘Mountaintop Mining/Valley Fills in Appalachia Final Programmatic Environmental Impact Statement,’’ (EPA 9–03–R–05002, EPA Region 3, October 2005), pp. 27–28; available at http://www.epa.gov/region03/mtntop/eis2005.htm. 9 73 FR 75849, December 12, 2008. E:\FR\FM\30NOP3.SGM 30NOP3 62668 Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / Proposed Rules regulatory authority from approving any permit application unless the regulatory authority first prepares an ‘‘assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance,’’ which is known as the cumulative hydrologic impact assessment (CHIA). That section of SMCRA also provides that, after preparing the CHIA, the regulatory authority must make a finding as to whether the proposed operation ‘‘has been designed to prevent material damage to the hydrologic balance outside the permit area.’’ When we adopted our hydrologic information regulations at 30 CFR 780.21 and 784.14, which implement section 510(b)(3) in part, we did not include a definition of ‘‘material damage to the hydrologic balance’’ or establish fixed criteria for that term ‘‘because the gauges for measuring damage may vary from area to area and from operation to operation.’’ 10 We seek comment on whether understanding of the relevant hydrology and the associated technology have advanced since 1983 to the degree that there is now support for a definition that would include specific criteria and consistent measures for material damage to the hydrologic balance, and, if so, what that definition might be. We also seek comment on how we could, or whether we should, propose to revise the definition of cumulative impact area at 30 CFR 701.5,11 the CHIA regulations at 30 CFR 780.21(g) and 784.14(f), and the regulations at 30 CFR 10 48 FR 43973, September 26, 1983. impact area means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface- and ground-water systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond release of: (a) The proposed operation, (b) all existing operations, (c) any operations for which a permit application has been submitted to the regulatory authority, and (d) all operations required to meet diligent development requirements for leased Federal coal for which there is actual mine development information available.’’ WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS3 11 ‘‘Cumulative VerDate Nov<24>2008 14:59 Nov 27, 2009 Jkt 220001 780.21(f) and 784.14(e), which concern the determination of the probable hydrologic consequences of mining, to incorporate elements that are consistent with the manner and standards by which the Corps of Engineers determines potential cumulative adverse impacts on waters of the United States when evaluating a permit application for the discharge of fill material under section 404 of the Clean Water Act. 8. Proposing to require that a SMCRA permit applicant concurrently submit the SMCRA permit application to the SMCRA regulatory authority, the National Pollutant Discharge Elimination System permitting entity (EPA or a delegated State agency), the U.S. Army Corps of Engineers, EPA, and the State agency responsible for certification under section 401 of the Clean Water Act. This alternative would facilitate coordinated permitting under SMCRA and the Clean Water Act for projects proposing mining or related activities in waters of the United States. 9. Proposing more detailed permit application requirements and performance standards for streamchannel diversions and restoration of streams. We also are considering proposing specific requirements for premining stream condition surveys and monitoring or bond release requirements apart from compliance with stream-channel construction criteria and revegetation requirements. We invite comment on whether we should propose additional requirements of this nature and, if so, what those requirements should include. 10. Proposing provisions that would apply only to mountaintop removal operations and operations on steep slopes. This approach would largely limit the impact of the rulemaking to portions of Kentucky, Virginia, and West Virginia, the three States in which the vast majority of fills are constructed. States that do not have steep slopes or that do not allow mining on steep slopes would not be affected. In addition, we PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 could propose to modify 30 CFR 824.11(a)(9), which applies to mountaintop removal operations, to apply the prohibition in section 515(c)(4)(D) of SMCRA on damaging natural watercourses to all natural watercourses, not just to natural watercourses ‘‘below the lowest seam mined.’’ Finally, we invite you to identify other provisions of our regulations, such as the provisions concerning approximate original contour, that you believe we should consider revising in order to better protect the environment and the public from the impacts of Appalachian surface coal mining, consistent with Part III.A. of the MOU. Consistent with the requirements of the Administrative Procedure Act, we will publish in the Federal Register any regulations that we may subsequently propose. That notice will provide the public with an opportunity to review and comment on the proposed regulations. VII. Will Comments Received in Response to This Notice Be Available for Review? Yes. All comments that we receive prior to the close of the comment period (see DATES) will be available for review on http://www.regulations.gov. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. You may request in your comment that we withhold your personal identifying information from public review, but we cannot guarantee that we will be able to do so. Dated: November 20, 2009. Wilma A. Lewis, Assistant Secretary, Land and Minerals Management. [FR Doc. E9–28513 Filed 11–24–09; 4:15 pm] BILLING CODE 4310–05–P E:\FR\FM\30NOP3.SGM 30NOP3

Agencies

[Federal Register Volume 74, Number 228 (Monday, November 30, 2009)]
[Proposed Rules]
[Pages 62664-62668]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28513]



[[Page 62663]]

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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 780, 784, 816, et al.



Stream Buffer Zone and Related Rules; Proposed Rule

Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 / 
Proposed Rules

[[Page 62664]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 780, 784, 816, and 817

[Docket ID OSM-2009-0009]
RIN: 1029-AC63


Stream Buffer Zone and Related Rules

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

ACTION: Advance notice of proposed rulemaking; notice of intent to 
prepare a supplemental environmental impact statement (SEIS).

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are seeking comments on our intention to revise our regulations 
concerning the conduct of mining activities in or near streams. We have 
determined that revision of the stream buffer zone (SBZ) rule published 
on December 12, 2008, is necessary to implement the interagency action 
plan that the Administration has developed to significantly reduce the 
harmful environmental consequences of surface coal mining operations in 
Appalachia, while ensuring that future mining remains consistent with 
Federal law. In this notice, we describe and seek comment on the 
alternatives that we are considering for revision of the SBZ rule. In 
addition, we request your help in identifying significant issues, 
studies, and specific alternatives that we should consider in the SEIS 
for this rulemaking initiative.
    The June 11, 2009, memorandum of understanding (MOU) implementing 
the interagency action plan also calls for us to consider whether 
revisions to other OSM regulations (including, at a minimum, 
approximate original contour requirements) are needed to better protect 
the environment and the public from the impacts of Appalachian surface 
coal mining. We have identified addition of a definition of ``material 
damage to the hydrologic balance'' as one such possibility. We invite 
comment on that option as well as whether there are other OSM 
regulations that could be revised to implement this provision of the 
MOU.

DATES: To ensure consideration, we must receive your comments on or 
before December 30, 2009.

ADDRESSES: You may submit comments by any of the following methods, 
although we request that you use the Federal e-rulemaking portal if 
possible:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
The document has been assigned Docket ID: OSM-2009-0009. Follow the 
online instructions for submitting comments.
     Mail, hand-delivery, or courier to: Office of Surface 
Mining Reclamation and Enforcement, Administrative Record, Room 252-
SIB, 1951 Constitution Avenue, NW., Washington, DC 20240. Please 
include the Docket ID (OSM-2009-0009) with your comment.
    Comments that we receive after the close of the comment period (see 
DATES) or sent to an address other than those listed above will not be 
considered or included in the docket.
    Please submit all comments and related materials that you wish us 
to consider. We are not able to consider comments and materials that 
were previously submitted in connection with a different rulemaking.
    For information on the public availability of comments, see Part 
VII of this preamble, which is entitled ``Will comments received in 
response to this notice be available for review?''

FOR FURTHER INFORMATION CONTACT: Dennis Rice, Division of Regulatory 
Support, Office of Surface Mining Reclamation and Enforcement, 1951 
Constitution Ave., NW. MS 202-SIB, Washington, DC 20240; Telephone 202-
208-2829.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Why Are We Publishing This Notice?
II. What Does SMCRA Say About Streams?
III. What Provisions of SMCRA Form the Basis for the SBZ Rule?
IV. What Is the History of the SBZ Rule?
V. What Are the Major Provisions of the 2008 Rule?
VI. How Do We Plan To Revise Our Regulations?
VII. Will Comments Received in Response to This Notice Be Available 
for Review?

I. Why Are We Publishing This Notice?

    On December 12, 2008 (73 FR 75814-75885), we published a final rule 
modifying the circumstances under which mining activities may be 
conducted in or near perennial or intermittent streams. That rule, 
which this notice refers to as the 2008 rule, took effect January 12, 
2009. A total of nine organizations challenged the validity of the rule 
in two complaints filed on December 22, 2008, and January 16, 2009: 
Coal River Mountain Watch, et al. v. Salazar, No. 08-2212 (D.D.C.) 
(``Coal River'') and National Parks Conservation Ass'n v. Salazar, No. 
09-115 (D.D.C.) (``NPCA'').
    In NPCA, the Government filed a motion on April 27, 2009, for 
voluntary remand and vacatur of the 2008 rule. The motion was based on 
Secretary of the Interior Ken Salazar's determination that OSM erred in 
failing to initiate consultation with the U.S. Fish and Wildlife 
Service under subsection 7(a)(2) of the Endangered Species Act, 16 
U.S.C. 1536(a)(2), to evaluate possible effects of the 2008 rule on 
threatened and endangered species. Granting of the Government's motion 
likely would have had the effect of reinstating the 1983 version of the 
SBZ rule. In Coal River, the Government filed a motion on April 28, 
2009, to dismiss the complaint as moot if the court granted the motion 
in NPCA.
    On June 11, 2009, the Secretary of the Department of the Interior, 
the Administrator of the U.S. Environmental Protection Agency (EPA), 
and the Acting Assistant Secretary of the Army (Civil Works) entered 
into a memorandum of understanding (MOU)\1\ implementing an interagency 
action plan designed to significantly reduce the harmful environmental 
consequences of surface coal mining operations in six Appalachian 
States,\2\ while ensuring that future mining remains consistent with 
Federal law. Among other things, the MOU required that OSM develop 
guidance clarifying how the 1983 SBZ rule would be applied to reduce 
adverse impacts on streams if the court granted the Government's motion 
in NPCA for remand and vacatur of the 2008 SBZ rule.
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    \1\ The MOU can be viewed online at http://www.osmre.gov/resources/ref/mou/ASCM061109.pdf.
    \2\ Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West 
Virginia.
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    However, on August 12, 2009, the court denied the Government's 
motion in NPCA, holding that, absent a ruling on the merits, 
significant new evidence, or consent of all the parties, a grant of 
vacatur would allow the government to improperly bypass the procedures 
set forth in the Administrative Procedure Act (APA), 5 U.S.C. 551 et 
seq., for repealing an agency rule. On the same date, the court denied 
the government's motion to dismiss in Coal River.
    The Secretary of the Interior remains committed to reducing the 
adverse impacts of Appalachian surface coal mining operations on 
streams. Accomplishing that goal will involve revision or repeal of 
certain elements of the 2008 rule. The rulemaking process will adhere 
to the requirements of the Administrative Procedure Act, including any 
applicable notice and comment requirements, consistent with the court's 
decision in NPCA.
    The notice that we are publishing today is the first step in the 
rulemaking

[[Page 62665]]

process. We are publishing this notice to seek public input into how 
the 2008 rule should be revised to better protect streams and implement 
the MOU. The MOU identifies the stream buffer zone rule and our 
regulations concerning approximate original contour as two rules that 
we will consider revising. In this notice, we describe options that we 
are considering for revision of the stream buffer zone rule. We invite 
you, the public, to comment on those options, to suggest other options, 
and to identify other provisions of our regulations that should be 
revised to better protect the environment and the public from the 
impacts of Appalachian surface coal mining. After considering the 
comments, we intend to move expeditiously to develop a proposed rule 
that will further clarify how streams must be protected within the 
framework established by SMCRA.
    At the appropriate time, we also will initiate consultation with 
the U.S. Fish and Wildlife Service under subsection 7(a)(2) of the 
Endangered Species Act, 16 U.S.C. 1536(a)(2), to evaluate possible 
effects of a new rule on threatened and endangered species.

II. What Does SMCRA Say About 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) 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.''
     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 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.'' The term 
``natural water courses'' includes all types of streams--perennial, 
intermittent, and ephemeral.
     Section 515(c)(4)(D) provides that, in approving a permit 
application for a mountaintop removal operation \3\, the regulatory 
authority must require that ``no damage will be done to natural 
watercourses.\4\ '' 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.''
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    \3\ Under section 515(c)(2) of SMCRA, a mountaintop removal 
operation is a surface coal mine that will remove an entire coal 
seam or seams running through the upper fraction of a mountain, 
ridge, or hill by removing all of the overburden and creating a 
level plateau or a gently rolling contour with no highwalls 
remaining, and capable of supporting certain specified postmining 
land uses. This term is a subset of the various types of mining 
commonly referred to as mountaintop mining.
    \4\ The regulations implementing this provision interpret the 
prohibition as applying only to natural watercourses ``below the 
lowest coal seam mined.'' See 30 CFR 824.11(a)(9).
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     Section 516(c) requires the regulatory authority to 
suspend underground coal mining adjacent to permanent streams if an 
imminent danger to inhabitants of urbanized areas, cities, towns, or 
communities exists.

III. What Provisions of SMCRA Form the Basis for the SBZ Rule?

    Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA served as 
the basis for all four versions (1977, 1979, 1983, and 2008) of the 
stream buffer zone rule with respect to surface mining activities. 
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 minesite 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.

    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.
    Commenters responding to this notice should explain how their 
suggestions concerning revision of the SBZ rule are consistent with 
these statutory provisions.

IV. What Is the History of the SBZ Rule?

    We have had an SBZ rule in place since 1977, but the rule and its 
application did not receive widespread attention until the 1990s when 
concerns arose over the environmental impacts of large-scale surface 
coal mining operations in central Appalachia. Surface mining in this 
mountainous area of steep slopes and narrow valleys produces more spoil 
material than can be returned to the site of the excavation created by 
the mining operation. The excess spoil material is most commonly placed 
in the valleys adjacent to the mine excavation. These valleys often 
contain headwater streams. In Appalachia, intermittent streams begin in 
watersheds as small as 15 acres and perennial streams begin in 
watersheds as small as 41 acres, according to a study conducted by the 
U.S. Geological Survey.\5\
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    \5\ 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.
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    The 1983 version of the SBZ rule prohibited disturbance of land 
within 100 feet of an intermittent or perennial stream unless the 
regulatory authority found that the conduct of mining activities 
``closer to, or through, such a stream'' would not cause or contribute 
to the violation of State or Federal water quality standards and would 
not adversely affect the water quantity or

[[Page 62666]]

quality or other environmental resources of the stream. The 1983 rule 
has been the subject of litigation.\6\ For a more detailed history of 
the SBZ rule, please refer to the discussion in the preamble to the 
2008 rule (73 FR 75816-75818, December 12, 2008).
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    \6\ In 1999, the U. S. District Court for the Southern District 
of West Virginia held that the West Virginia version of the SBZ rule 
prohibited the creation of fills that bury streambeds because (1) 
nothing in the State or Federal rules supports an interpretation 
that would exempt the regulatory authority from its obligation to 
make the buffer zone findings for the segment of the stream that 
lies within the footprint of the fill, and (2) burying a stream 
segment would impermissibly destroy that segment. Bragg v. 
Robertson, 72 F. Supp. 2d 642 (S.D. W. Va. 1999). That decision was 
overturned on appeal on other grounds (lack of jurisdiction under 
the Eleventh Amendment to the U. S. Constitution). Bragg v. West 
Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001), cert. denied, 534 
U.S. 1113 (2002). In a second case, the appellate court stated in 
its opinion that it is beyond dispute that SMCRA recognizes the 
possibility of placing excess spoil material in waters of the United 
States. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 
F.3d 425, 442-443 (4th Cir. 2003).
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V. What Are the Major Provisions of the 2008 Rule?

    The 2008 rule replaced the 1983 version of the SBZ rule at 30 CFR 
816.57(a)(1) and 817.57(a)(1), which prohibited disturbance of land 
within 100 feet of a perennial or intermittent stream unless the 
regulatory authority authorized the proposed activities after finding 
that conducting those activities ``closer to, or through, such a 
stream'' would not cause or contribute to the violation of applicable 
State or Federal water quality standards and would not adversely affect 
the water quantity or quality or other environmental resources of the 
stream. The 2008 rule replaced that requirement with new provisions at 
30 CFR 780.28(d) and (e) and 784.28(d) and (e).
    Under the 2008 rule at 30 CFR 780.28(d) and 784.28(d), the conduct 
of activities within a perennial or intermittent stream (with the 
exception of activities conducted in connection with construction of a 
stream-channel diversion or in connection with a coal preparation plant 
located outside the permit area of a mine) is prohibited unless the 
regulatory authority finds that avoiding disturbance of the stream is 
not reasonably possible and that the plans submitted with the 
application meet all applicable requirements in paragraphs (b) and (c) 
of 30 CFR 816.57 or 817.57. Among other things, those paragraphs 
require that, to the extent possible, the operator use the best 
technology currently available to prevent the contribution of suspended 
solids to streamflow or runoff outside the permit area and to minimize 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values. Under 30 CFR 780.28(d)(2) and 784.28(d)(2), every 
permit approving disturbance of a perennial or intermittent stream must 
include a permit condition requiring that the permittee demonstrate 
compliance with the Clean Water Act before conducting any activities 
that require authorization or certification under the Clean Water Act.
    Under the 2008 rule at 30 CFR 780.28(e) and 784.28(e), activities 
on the surface of land within 100 feet of a perennial or intermittent 
stream are prohibited unless the permit applicant demonstrates, and the 
regulatory authority finds, either that it is not reasonably possible 
to avoid disturbance of the buffer zone or that avoidance of 
disturbance is not necessary to meet the fish and wildlife and 
hydrologic balance protection requirements of the regulatory program. 
The regulatory authority also must find that the plans submitted by the 
applicant demonstrate that the operation will, to the extent possible, 
use the best technology currently available to prevent the contribution 
of suspended solids to streamflow or runoff outside the permit area and 
to minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values.
    Under the 2008 rule at 30 CFR 816.57(a)(1) and (b) and 817.57(a)(1) 
and (b), certain activities are exempt from the buffer zone 
requirements of 30 CFR 780.28(e) and 784.28(e) to the extent that the 
regulatory authority has approved filling the stream segment under 30 
CFR 780.28(d) or 784.28(d) or diverting the stream segment under 30 CFR 
816.43(b) or 817.43(b). In other words, if a stream segment will cease 
to exist in its original location as a result of mining activities, the 
rule provides that there is no need to protect the buffer zone for that 
stream segment. The activities to which this exemption applies include 
stream-channel diversions, construction of stream crossings, 
construction of sedimentation pond embankments, and construction of 
excess spoil fills and coal mine waste disposal facilities.
    The 2008 rule provides that mining operations must return as much 
of the overburden as possible to the excavation created by the mine. 
See 30 CFR 780.35(a)(1) and 784.19(a)(1). The 2008 rule also requires 
that mine operators minimize the volume of excess spoil generated by 
mining operations and design and construct fills to be no larger than 
needed to accommodate the anticipated volume of excess spoil to be 
generated. See 30 CFR 780.35(a)(2) and 784.19(a)(2).
    The 2008 rule further provides that the operator must avoid 
constructing excess spoil fills, refuse piles, or slurry impoundments 
in perennial and intermittent streams to the extent possible. When 
avoidance is not possible, the rule requires that the operator identify 
a range of reasonable alternatives for disposal and placement of the 
excess spoil or coal mine waste, evaluate the environmental impacts of 
each alternative, and select the alternative with the least overall 
adverse impact on fish, wildlife, and related environmental values. See 
30 CFR 780.25(d)(1), 780.35(a)(3), 784.16(d)(1), and 784.19(a)(3).
    The 2008 rule states 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. See 30 CFR 780.28(f)(2), 784.28(f)(2), 816.57(a)(2), and 
817.57(a)(2). In particular, the rule requires that the SMCRA permit 
include a condition prohibiting any disturbance of a perennial or 
intermittent stream before obtaining all necessary Clean Water Act 
authorizations. See 30 CFR 780.28(d)(2) and 784.28(d)(2).

VI. How Do We Plan To Revise Our Regulations?

    We intend to revise our regulations in a manner consistent with the 
provisions of SMCRA and the MOU. Part III.A. of the MOU provides that 
we will review our ``existing regulatory authorities and procedures to 
determine whether regulatory modifications should be proposed to better 
protect the environment and public health from the impacts of 
Appalachian surface coal mining.'' It further provides that, at a 
minimum, we will consider revisions to the stream buffer zone rule and 
our requirements concerning approximate original contour. This notice 
focuses on revisions to the stream buffer zone rule, but we invite 
commenters to suggest other provisions of our regulations that could or 
should be revised to accomplish the objectives of the MOU.
    To comply with the National Environmental Policy Act, we intend to 
prepare a supplement to the final environmental impact statement (FEIS) 
for the 2008 rule (OSM-EIS-34).\7\ The

[[Page 62667]]

supplement (SEIS) will include and discuss additional information on 
the impacts of mining on streams and related resources. It also will 
evaluate additional action alternatives in detail, while incorporating 
by reference the programmatic analyses in the FEIS, to the extent 
appropriate. This approach will enable us to meet our National 
Environmental Policy Act obligations in a cost-effective and timely 
manner. As provided in 40 CFR 1502.9(c)(4), we will prepare and process 
the SEIS in the same fashion as a standard environmental impact 
statement, exclusive of scoping. In other words, we will prepare both a 
draft SEIS, which will be subject to public comment, and a final SEIS.
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    \7\ OSM-EIS-34, ``Proposed Revisions to the Permanent Program 
Regulations Implementing the Surface Mining Control and Reclamation 
Act of 1977 Concerning the Creation and Disposal of Excess Spoil and 
Coal Mine Waste and Stream Buffer Zones,'' is available on the 
Internet at http://www.regulations.gov. The Document ID number is 
OSM-2007-0008-0553. A copy of the FEIS is also available for 
inspection in the South Interior Building, Room 101, 1951 
Constitution Avenue, NW., Washington, DC 20240.
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    Any proposed revisions of our rules must be consistent with the 
provisions of SMCRA, as discussed in Parts II and III of this notice. 
We also note that section 102(f) of SMCRA 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.''
    Comments that you provide in response to this advance notice will 
help us determine which alternatives will be developed in the SEIS and 
the proposed rule. We encourage commenters to be as detailed as 
possible and to explain how any suggested regulatory changes are 
consistent with SMCRA and the rulemaking authority that we have under 
SMCRA.
    The alternatives described below are not necessarily mutually 
exclusive. After evaluating the comments received, we may decide not to 
propose some of the alternatives listed here. We also may decide to 
propose some combination of the listed alternatives, variations of 
those alternatives, new alternatives suggested by commenters, or new 
alternatives that we develop. The public will have another opportunity 
to comment when the proposed rule is published.
    We are considering the following alternatives for revising the 
stream buffer zone rule and related rules:
    1. Proposing to repeal the existing SBZ rules (30 CFR 780.28, 
784.28, 816.57, and 817.57) and replace them with the 1983 version of 
the SBZ rule at 30 CFR 816.57 and 817.57, with conforming revisions to 
the signs and markers requirements of 30 CFR 816.11 and 817.11. This 
alternative also would include a proposal to either repeal or make 
conforming revisions to 30 CFR 780.25(d)(1), 780.35(a)(3), 
784.16(d)(1), and 784.19(a)(3), because those provisions contain 
permitting requirements specific to applications that propose to 
construct coal mine waste impoundments, refuse piles, or excess spoil 
fills in or within 100 feet of perennial or intermittent streams. In 
addition, this alternative could include a proposal to replace the 2008 
version of the stream-channel diversion requirements of 30 CFR 816.43 
and 817.43 with the 1983 version of those requirements, which includes 
a reference to the SBZ rule.
    We request comment on whether reinstatement of the language in the 
1983 SBZ rule would be appropriate, and, if so, how that language 
should be interpreted to promote stream protection in a way that is 
fully consistent with SMCRA.
    2. Proposing to apply the prohibitions and restrictions of the 
stream buffer zone rule to all segments of all perennial and 
intermittent streams and to the surface of all lands within 100 feet of 
those streams. One variation of this alternative could be to establish 
a rebuttable presumption that the placement of excess spoil or coal 
mine waste in an intermittent or perennial stream is prohibited because 
it would result in an unacceptable level of environmental damage. 
Another variation could be to prohibit placement of excess spoil or 
coal mine waste in perennial and intermittent streams and restrict 
placement in ephemeral streams.
    3. Proposing to revise 30 CFR 816.57 and 817.57 to provide that the 
SMCRA regulatory authority may authorize mining activities in a 
perennial or intermittent stream, or on the surface of land within 100 
feet of such a stream, only if those activities (1) would not violate 
Sections 401 and 402 of the Clean Water Act; (2) would not violate 
Section 404 of the Clean Water Act; (3) would not significantly degrade 
the water quantity or quality or other environmental resources of the 
stream; and (4) would minimize disturbances and adverse impacts on 
fish, wildlife, and other related environmental values of the stream to 
the extent possible using the best technology currently available. A 
variation on this option would revise criterion (3) to prohibit 
significant degradation of the water quantity or quality or other 
environmental resources of the stream ``outside the permit area.''
    4. Proposing numerical limits on fill size, the percentage of a 
watershed disturbed by mining operations at any one time, or total 
stream miles covered by fills in each watershed. The 2005 final 
programmatic environmental impact statement on mountaintop mining and 
valley fills found that existing studies provided an insufficient basis 
to determine a bright-line threshold of the nature described in this 
alternative.\8\
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    \8\ ``Mountaintop Mining/Valley Fills in Appalachia Final 
Programmatic Environmental Impact Statement,'' (EPA 9-03-R-05002, 
EPA Region 3, October 2005), pp. 27-28; available at http://www.epa.gov/region03/mtntop/eis2005.htm.
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    We invite comment on whether scientific information is now 
available that might provide a sufficient basis for establishing 
numerical limits of the nature described in this alternative. We 
encourage commenters to suggest specific thresholds, together with the 
rationale for those thresholds.
    5. Proposing a quantitative or qualitative threshold beyond which 
further damage to water quality or aquatic life in a particular 
watershed would be prohibited. We encourage commenters to identify 
potential thresholds and explain why those thresholds should be 
established. We also encourage commenters to discuss how thresholds 
could be harmonized with Clean Water Act requirements and the Clean 
Water Act permitting process.
    6. Proposing to adopt by regulation the watershed approach 
described in the following language from the preamble to the 2008 rule 
\9\:
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    \9\ 73 FR 75849, December 12, 2008.

    A watershed approach expands the informational and analytic 
basis of site selection decisions to ensure impacts are considered 
on a watershed scale rather than only project by project. The idea 
being locational factors (e.g., hydrology, surrounding land use) are 
important to evaluating the indirect and cumulative impacts of the 
project. Watershed planning efforts can identify and prioritize 
where preservation of existing aquatic resources are important for 
maintaining or improving the quality (and functioning) of downstream 
resources. The objective of this evaluation is to maintain and 
improve the quantity and quality of the watershed's aquatic 
resources and to ensure water quality standards (numeric and 
narrative criteria, anti-degradation, and designated uses) are met 
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in downstream waters.

    We invite comment on how we could best incorporate this approach 
into our regulations in a manner that is consistent with SMCRA.
    7. Proposing a definition of the term ``material damage to the 
hydrologic balance.'' Section 510(b)(3) of SMCRA, 30 U.S.C. 1260(b)(3), 
prohibits the

[[Page 62668]]

regulatory authority from approving any permit application unless the 
regulatory authority first prepares an ``assessment of the probable 
cumulative impact of all anticipated mining in the area on the 
hydrologic balance,'' which is known as the cumulative hydrologic 
impact assessment (CHIA). That section of SMCRA also provides that, 
after preparing the CHIA, the regulatory authority must make a finding 
as to whether the proposed operation ``has been designed to prevent 
material damage to the hydrologic balance outside the permit area.''
    When we adopted our hydrologic information regulations at 30 CFR 
780.21 and 784.14, which implement section 510(b)(3) in part, we did 
not include a definition of ``material damage to the hydrologic 
balance'' or establish fixed criteria for that term ``because the 
gauges for measuring damage may vary from area to area and from 
operation to operation.'' \10\ We seek comment on whether understanding 
of the relevant hydrology and the associated technology have advanced 
since 1983 to the degree that there is now support for a definition 
that would include specific criteria and consistent measures for 
material damage to the hydrologic balance, and, if so, what that 
definition might be.
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    \10\ 48 FR 43973, September 26, 1983.
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    We also seek comment on how we could, or whether we should, propose 
to revise the definition of cumulative impact area at 30 CFR 701.5,\11\ 
the CHIA regulations at 30 CFR 780.21(g) and 784.14(f), and the 
regulations at 30 CFR 780.21(f) and 784.14(e), which concern the 
determination of the probable hydrologic consequences of mining, to 
incorporate elements that are consistent with the manner and standards 
by which the Corps of Engineers determines potential cumulative adverse 
impacts on waters of the United States when evaluating a permit 
application for the discharge of fill material under section 404 of the 
Clean Water Act.
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    \11\ ``Cumulative impact area means the area, including the 
permit area, within which impacts resulting from the proposed 
operation may interact with the impacts of all anticipated mining on 
surface- and ground-water systems. Anticipated mining shall include, 
at a minimum, the entire projected lives through bond release of: 
(a) The proposed operation, (b) all existing operations, (c) any 
operations for which a permit application has been submitted to the 
regulatory authority, and (d) all operations required to meet 
diligent development requirements for leased Federal coal for which 
there is actual mine development information available.''
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    8. Proposing to require that a SMCRA permit applicant concurrently 
submit the SMCRA permit application to the SMCRA regulatory authority, 
the National Pollutant Discharge Elimination System permitting entity 
(EPA or a delegated State agency), the U.S. Army Corps of Engineers, 
EPA, and the State agency responsible for certification under section 
401 of the Clean Water Act. This alternative would facilitate 
coordinated permitting under SMCRA and the Clean Water Act for projects 
proposing mining or related activities in waters of the United States.
    9. Proposing more detailed permit application requirements and 
performance standards for stream-channel diversions and restoration of 
streams. We also are considering proposing specific requirements for 
premining stream condition surveys and monitoring or bond release 
requirements apart from compliance with stream-channel construction 
criteria and revegetation requirements. We invite comment on whether we 
should propose additional requirements of this nature and, if so, what 
those requirements should include.
    10. Proposing provisions that would apply only to mountaintop 
removal operations and operations on steep slopes. This approach would 
largely limit the impact of the rulemaking to portions of Kentucky, 
Virginia, and West Virginia, the three States in which the vast 
majority of fills are constructed. States that do not have steep slopes 
or that do not allow mining on steep slopes would not be affected. In 
addition, we could propose to modify 30 CFR 824.11(a)(9), which applies 
to mountaintop removal operations, to apply the prohibition in section 
515(c)(4)(D) of SMCRA on damaging natural watercourses to all natural 
watercourses, not just to natural watercourses ``below the lowest seam 
mined.''
    Finally, we invite you to identify other provisions of our 
regulations, such as the provisions concerning approximate original 
contour, that you believe we should consider revising in order to 
better protect the environment and the public from the impacts of 
Appalachian surface coal mining, consistent with Part III.A. of the 
MOU.
    Consistent with the requirements of the Administrative Procedure 
Act, we will publish in the Federal Register any regulations that we 
may subsequently propose. That notice will provide the public with an 
opportunity to review and comment on the proposed regulations.

VII. Will Comments Received in Response to This Notice Be Available for 
Review?

    Yes. All comments that we receive prior to the close of the comment 
period (see DATES) will be available for review on http://www.regulations.gov. Before including your address, phone number, e-
mail address, or other personal identifying information in your 
comment, you should be aware that your entire comment--including your 
personal identifying information--may be made publicly available at any 
time. You may request in your comment that we withhold your personal 
identifying information from public review, but we cannot guarantee 
that we will be able to do so.

    Dated: November 20, 2009.
Wilma A. Lewis,
Assistant Secretary, Land and Minerals Management.
[FR Doc. E9-28513 Filed 11-24-09; 4:15 pm]
BILLING CODE 4310-05-P