Stream Protection Rule; Environmental Impact Statement, 34666-34669 [2010-14727]

Agencies

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

[Federal Register Volume 75, Number 117 (Friday, June 18, 2010)]
[Proposed Rules]
[Pages 34666-34669]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14727]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Chapter VII

RIN 1029-AC63


Stream Protection Rule; Environmental Impact Statement

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

ACTION: Proposed rule; notice of intent to prepare an environmental 
impact statement.

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[[Page 34667]]

SUMMARY: On April 30, 2010,\1\ we, the Office of Surface Mining 
Reclamation and Enforcement (OSM), published a Notice of Intent to 
prepare an environmental impact statement. This new Notice of Intent 
supersedes the April Notice of Intent, expands the scoping 
opportunities to include open houses, and outlines possible 
alternatives to the proposed action. OSM intends to prepare an 
environmental impact statement (EIS) under section 102(2)(C) of the 
National Environmental Policy Act of 1969 (NEPA) to analyze the effects 
of potential rule revisions under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act) to improve protection of 
streams from the adverse impacts of surface coal mining operations. We 
are requesting comments for the purpose of determining the scope of the 
EIS.
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    \1\ 75 FR 22723 (April 30, 2010).

DATES: To ensure consideration, we must receive your electronic or 
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written comments by July 30, 2010.

ADDRESSES: You may submit comments by any of the following methods, 
although we request that you use electronic mail if possible:
     Electronic mail: Send your comments to sra-eis@osmre.gov.
     Mail, hand-delivery, or courier: Send your comments to 
Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, Room 252-SIB, 1951 Constitution Avenue, NW., Washington, DC 
20240.
     Open Houses: Written and oral comments will be accepted at 
the Open House sessions, which are discussed in Section V of this 
Notice.

FOR FURTHER INFORMATION CONTACT: John Craynon, Chief, Division of 
Regulatory Support, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave., NW., MS 202-SIB, Washington, DC 
20240; Telephone 202-208-2866.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Why are we publishing a new Notice of Intent?
II. Why are we planning to revise our rules?
III. What is the proposed Federal action?
IV. What are the possible alternatives?
V. How do I submit comments?
VI. How do I request to participate as a cooperating agency?

I. Why are we publishing a new Notice of Intent?

    On April 30, 2010, we published a Notice of Intent to prepare an 
environmental impact statement for a proposed Stream Protection Rule. 
We have decided to expand the scoping opportunities to include several 
open houses in various coal producing areas of the U.S. We have also 
included possible alternatives under consideration for each element of 
the proposed action. Finally, we have extended the scoping period to 
July 30, 2010.

II. Why are we planning to revise our rules?

    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 
(amended complaint filed February 17, 2009): Coal River Mountain Watch, 
et al. v. Salazar, No. 08-2212 (D.DC) (``Coal River'') and National 
Parks Conservation Ass'n v. Salazar, No. 09-115 (D.DC) (``NPCA''). 
Under the terms of a settlement agreement signed by the parties on 
March 19, 2010, we agreed to use best efforts to sign a proposed rule 
by February 28, 2011, and a final rule by June 29, 2012. We also agreed 
to consult with the Fish and Wildlife Service pursuant to the 
Endangered Species Act, as appropriate, prior to signing the final 
action. On April 2, 2010, the court granted the parties' motion to hold 
the judicial proceedings in abeyance.
    However, we had already decided to change the rule following the 
change of Administrations on January 20, 2009. 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 \2\ (MOU) implementing an interagency action plan 
designed to significantly reduce the harmful environmental consequences 
of surface coal mining operations in six Appalachian states, while 
ensuring that future mining remains consistent with Federal law. Among 
other things, under the MOU we committed to consider revisions to key 
provisions of our rules, including the 2008 rule and approximate 
original contour requirements, to better protect the environment and 
public health from the impacts of Appalachian surface coal mining.
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    \2\ The MOU can be viewed online at https://www.osmre.gov/resources/ref/mou/ASCM061109.pdf.
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    Consequently, on November 30, 2009, we published an advance notice 
of proposed rulemaking (ANPR) soliciting comments on ten potential 
rulemaking alternatives. See 74 FR 62664-62668. In addition, consistent 
with the MOU, we invited the public to identify other rules that we 
should revise. We also announced our intent to prepare a supplement to 
the EIS developed in connection with the 2008 rule.
    We received approximately 32,750 comments during the 30-day comment 
period that closed December 30, 2009. After evaluating the comments, we 
determined that development of a comprehensive stream protection rule 
(one that is much broader in scope than the 2008 rule) would be the 
most appropriate and effective method of achieving the goals set forth 
in the MOU and the ANPR. We believe that this holistic approach will 
better protect streams and related environmental values. It would not 
be fair, appropriate, scientifically valid or consistent with the 
principles of SMCRA to apply the new protections only in central 
Appalachia, as some commenters on the ANPR advocated. Streams are 
ecologically significant regardless of the region in which they are 
located. The broader scope of the stream protection rule means that we 
will need to prepare a new environmental impact statement rather than 
the supplement to the 2008 EIS that we originally intended to prepare.

III. What is the proposed Federal action?

    The proposed Federal action consists of revisions to various 
provisions of our rules to improve protection of streams from the 
impacts of surface coal mining operations nationwide. Principal 
elements of the proposed action include--
     Collection of Baseline Data. Adding more extensive and 
more specific permit application requirements concerning baseline data 
on hydrology, geology, and aquatic biology; the determination of the 
probable hydrologic consequences of mining; and the hydrologic 
reclamation plan; as well as more specific requirements for the 
cumulative hydrologic impact assessment.
     Definition of Material Damage to Hydrologic Balance. 
Defining the term ``material damage to the hydrologic balance outside 
the permit area.'' This term is critically important because, under 
section 510(b)(3) of SMCRA, the regulatory authority may not approve a 
permit application unless the proposed

[[Page 34668]]

operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area. This term includes streams 
downstream of the mining operation and above underground mines.
     Mining Activities In or Near Streams. Revising the 
regulations governing mining activities in or near streams, including 
mining through streams.
     Additional Monitoring Requirements. Adding more extensive 
and more specific monitoring requirements for surface water, 
groundwater, and aquatic biota during mining and reclamation.
     Corrective Action Thresholds. Establishing corrective 
action thresholds.
     Land Forming and Fill Optimization. Revising the 
backfilling and grading rules, excess spoil rules, and approximate 
original contour restoration requirements to incorporate landform 
restoration principles and reduce discharges of total dissolved solids.
     Approximate Original Contour Exceptions. Limiting 
variances and exceptions from approximate original contour restoration 
requirements.
     Reforestation. Requiring reforestation of previously 
wooded areas.
     Permit Coordination. Requiring that the regulatory 
authority coordinate the SMCRA permitting process with Clean Water Act 
permitting activities to the extent practicable.
     Financial Assurances for Long-Term Discharges of 
Pollutants. Codifying the financial assurance provisions of OSM's March 
31, 1997, policy statement \3\ on correcting, preventing, and 
controlling acid/toxic mine drainage and clarifying that those 
provisions apply to all long-term discharges of pollutants, not just 
pollutants for which effluent limitations exist.
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    \3\ See the document entitled ``Acid Mine Drainage Policy'' at 
https://www.osmre.gov/guidance/significant_guidance.shtm.
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     Stream Definitions. Updating the definitions of perennial, 
intermittent, and ephemeral streams.

IV. What are the possible alternatives?

    We are in the process of developing alternatives for the proposed 
Federal action. Comments received in response to this notice will 
assist us in that process.
    We will prepare a draft EIS after we complete the initial stages of 
scoping and identify which rulemaking alternatives will be analyzed in 
detail. Following release of the draft EIS, we anticipate publishing a 
notice of proposed rulemaking.
    Listed below are some of the possible alternatives, in addition to 
the No Action Alternative, that we are considering for each element of 
the proposed action:
     Additional Requirements for Collection of Baseline Data. 
Add requirements that permit applicants provide more specific and 
comprehensive baseline data addressing factors such as: (1) Duration of 
sampling needed to demonstrate seasonal variations in hydrology, e.g., 
12 months, 24 months, or other duration; (2) Frequency of sampling for 
various types of baseline data, e.g., monthly, quarterly, annually; (3) 
Location of sampling, e.g., downstream, upstream, off-permit; (4) 
Aquatic biological communities subject to sampling; and (5) Chemical, 
physical, and hydrologic parameters to be sampled.
     Definition of Material Damage to Hydrologic Balance. 
Alternatives for defining the term ``material damage'' include: (1) Any 
impairment of a physical, chemical, or biological function of the 
hydrologic balance; (2) Any quantifiable adverse impact on the quality 
or quantity of surface or groundwater or the biological condition of a 
stream that would preclude or diminish use of the water or stream; (3) 
Any ongoing violation of water quality standards; and (4) 
Differentiating between short term vs. long term impairment.
     Mining Activities In or Near Streams. Alternatives for 
regulating mining activities in, through, or near streams include: (1) 
Prohibiting disturbance of streams with a biological community unless 
the permit applicant demonstrates the ability to restore stream form 
and function; (2) Prohibiting activities and disturbances in all 
streams with a biological community, irrespective of the ability of the 
permit applicant to restore form and function; (3) Prohibiting 
activities in or near streams; (4) Reinstating the 1983 stream buffer 
zone rule; and (5) Addressing whether fills should be included or 
excluded in these restrictions.
     Additional Monitoring Requirements. Permittees would be 
required to provide additional monitoring data based on the following 
considerations: (1) Duration of monitoring, e.g., through final bond 
release; (2) Frequency of sampling, e.g., continuous, weekly, monthly, 
quarterly, annually; (3) Location of sampling, e.g., downstream, 
upstream, off-permit; (4) Biological components subject to sampling; 
(5) Sampling parameters, e.g., chemical, physical, hydrologic; and (6) 
Regular review of monitoring data by regulatory authority, e.g., 
annually, at mid-term review, at permit renewal.
     Corrective Action Thresholds. Alternatives for determining 
the circumstances under which the permittee must take corrective action 
to prevent material damage to the hydrologic balance include: (1) 
Developing numerical water quality thresholds based on biological 
criteria; (2) Developing action thresholds based on water quality trend 
analysis; and (3) Defining key parameters for which thresholds will be 
established.
     Landforming and Fill Optimization. Alternatives for 
evaluating land configuration and handling of excess spoils include: 
(1) Restoring landforms including slope, aspect, and elevation on both 
backfilled areas and excess spoil fills; (2) Allowing postmining 
elevations to exceed premining elevations when necessary to restore 
premining topographic features; (3) Revising requirements to minimize 
creation of excess spoil by maximizing the amount of spoil returned to 
the mined-out area; (4) Revising requirements to minimize excess spoil 
footprints; and (5) Banning excess fill placement in streams.
     Approximate Original Contour Exceptions. Alternatives 
under consideration include: (1) Modifying requirements to ensure that 
exceptions from approximate original contour restoration requirements 
do not result in additional damage to streams with a biological 
community; (2) Prohibiting ``mountain top'' mining (would require a 
statutory change); and (3) Adding requirements to ensure approved 
postmining land uses are achievable and feasible.
     Reforestation. Alternatives under consideration include: 
(1) Requiring reforestation of mined lands to premining diversity and 
stocking or some percentage of premining diversity and stocking; (2) 
Requiring reforestation of all mined lands capable of supporting 
forested land uses; (3) Requiring reforestation of mined lands to the 
extent compatible with postmining land use; (4) Requiring reforestation 
and revegetation of mined lands with native species; and (5) Minimizing 
forest fragmentation.
     Permit Coordination. A provision under consideration 
includes: (1) Enhancing coordination of SMCRA and Clean Water Act 
regulatory programs consistent with the 2009 Memorandum of 
Understanding among DOI, Army Corps of Engineers, and EPA; and (2) 
Standardizing data collection and

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management to enhance sharing among regulatory agencies and the public.
     Long-Term Discharges of Pollutants. A provision under 
consideration includes: (1) Incorporating our March 31, 1997 policy 
statement (see footnote 3 above) into SMCRA regulations and clarifying 
that those provisions apply to all long-term discharges of pollutants.
     Stream Definitions. Alternatives under consideration 
include: (1) Updating the current definitions of perennial, 
intermittent, and ephemeral streams to include biological criteria; (2) 
Retaining the current definitions with the 1-square mile criterion for 
intermittent streams removed; (3) Adopting the stream definitions used 
by the Corps of Engineers--``waters of the United States''-- in place 
of stream definitions; and (4) Using a flow-based (hydraulic) 
definition with no reference to biological condition.

V. How do I submit comments?

    Consistent with 43 CFR 46.235, we invite all interested persons, 
organizations, and agencies to provide comments, suggestions, and any 
other information relevant to the scope of the EIS, the scope of the 
proposed Federal action, potential alternatives for the proposed 
Federal action, and studies and impacts that the EIS should address. 
See ADDRESSES for the methods by which we will accept comments.
    We also anticipate conducting several open houses in various 
locations in coal producing regions of the U.S. in July 2010. The 
following locations are under consideration: Morgantown, WV; Beckley, 
WV; Hazard, KY; Birmingham, AL; Evansville, IN; Carbondale, IL; 
Fairfield, TX; Farmington, NM; and Gillette, WY. The open houses will 
provide an opportunity for the public to review information and provide 
oral and written comments regarding the scope of the issues to be 
addressed and identification of the significant issues related to the 
proposed action and possible alternatives. Information regarding the 
specific dates and locations will be posted on OSM's Web site, https://www.osmre.gov, and in local news media.
    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. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so. Comments that we receive after the close of the comment 
period (see DATES) or sent to an address other than those listed in 
ADDRESSES may not be considered.
    If you previously submitted comments in response to the ANPR or the 
April 30, 2010 Notice of Intent, you do not need to resubmit them. We 
will consider all ANPR and April 30th comments as part of this EIS 
scoping process.

VI. How do I request to participate as a cooperating agency?

    Consistent with 43 CFR 46.225, we, the lead agency, invite eligible 
Federal, state, tribal, and local governmental entities to indicate 
whether they have an interest in being a cooperating agency in the 
preparation of the EIS. Qualified entities are those with jurisdiction 
by law, as defined in 40 CFR 1508.15, or special expertise, as defined 
in 40 CFR 1508.26. Potential cooperating agencies should consider their 
authority and capacity to assume the responsibilities of a cooperating 
agency and make the necessary resources available in a timely manner, 
as discussed in the document entitled ``Factors for Determining 
Cooperating Agency Status,''\4\ which is Attachment 1 to the Council on 
Environmental Quality's January 30, 2002, Memorandum for the Heads of 
Federal Agencies: Cooperating Agencies in Implementing the Procedural 
Requirements of the National Environmental Policy Act. We will not be 
able to provide financial assistance to cooperating agencies. If you 
previously indicated that you were interested in being a cooperating 
agency, no further action is required.
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    \4\ See https://ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagencymemofactors.html.
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    If you have an interest in participating as a cooperating agency, 
please contact the person listed in FOR FURTHER INFORMATION CONTACT and 
identify those aspects of the EIS process in which you are interested 
in participating. The regulations at 43 CFR 46.230 and Items 4 through 
6 in the document discussed in the preceding paragraph list the 
activities in which cooperating agencies may wish to participate.

    Dated: June 10, 2010.
Sterling Rideout,
Assistant Director, Program Support.
[FR Doc. 2010-14727 Filed 6-17-10; 8:45 am]
BILLING CODE 4310-05-P