Current through Register Vol. 48, No. 12, March 22, 2024
a) Success of
Revegetation
1) Success of revegetation shall
be judged in accordance with this Section, Section 1816.117, and as described
in the Agricultural Lands Productivity Formula (Illinois Department of Natural
Resources, Office of Mines and Minerals, Land Reclamation Division and Illinois
Department of Agriculture, Bureau of Land and Water Resources, October 19,
2021, this incorporation includes no later amendments or additions). The
Agricultural Lands Productivity Formula is a program that compares reclaimed
field crop yields against projected county yields adjusted annually for weather
variations. The Agricultural Lands Productivity Formula is described in writing
and made available to the public.
2) Requirements
A) The period of extended responsibility for
successful revegetation shall begin after the last year of augmented seeding,
fertilizing, irrigation, or other work, excluding husbandry practices that are
approved by the Department in accordance with subsection (a)(2)(C).
B) The period of extended responsibility
shall continue for a period of not less than 5 full years, except that on lands
eligible for remining, the period of responsibility shall be 2 full years.
Vegetation parameters identified in subsection (a)(1) shall equal or exceed the
approved success standard set forth in subsection (a)(3).
C) The Department shall approve selective
husbandry practices, excluding irrigation or augmented seeding or augmented
fertilization, without extending the period of responsibility for revegetation
success and bond liability, if such practices can be expected to continue as
part of the post-mining land use or if discontinuance of the practices after
the liability period expires will not reduce the probability of permanent
revegetation success. Approved practices shall be normal conservation and land
use management practices within the region for unmined lands having land uses
similar to the approved post-mining land use of the disturbed area, including
such practices as disease, pest, and vermin control; any pruning, reseeding
and/or transplanting specifically necessitated by such actions; approved
agricultural practices described in the Illinois Agronomy Handbook,
24th Edition (University of Illinois at
Champaign-Urbana, University of Illinois Extension, College of Agriculture,
Consumer and Environmental Science, (2009; this incorporation includes no later
amendments or editions)); and those practices that are a part of an approved
conservation plan subject to the Farm Security and Rural Investment Act of 2002
(P.L. 107-171; 116 Stat. 134). On all lands with a postmining land use other
than cropland, any areas reseeded or replanted as a part or result of a normal
husbandry practice must be sufficiently small in size and limited in extent of
occurrence, or part of a hay management plan which is an agricultural practice
described by the Illinois Agronomy Handbook or as part of an approved
conservation plan subject to the Farm Security and Rural Investment Act of
2002, and the reestablished vegetation must be in place for a sufficient length
of time so as not to adversely affect the Department's ability to make a valid
determination at the time of bond release as to whether the site has been
properly reclaimed to a condition in which it will support a diverse,
effective, permanent vegetative cover of the required nature and productivity.
Copies of the Illinois Agronomy Handbook and the Farm Security and Rural
Investment Act of 2002 are available at the Department's Springfield
office.
D) Rill and gully repair on
cropland-capable reclaimed land will not be considered augmentation if a
permittee has an approved erosion control plan in place in the field pursuant
to 62 Ill. Adm. Code 1823.14(g) or 1825.14(f), and shortly after the first
rainfall event after the repair, the Department makes the following
determinations:
i) the area is a minor
erosional feature;
ii) the area is
small;
iii) the erosion is not
expected to recur; and
iv) the area
is stable.
The Department shall notify the permittee in writing whether or
not a repair is augmentative after making the determination. Such written
notice shall be in the form of an inspection report or other document issued by
the Department.
E)
Rill and gully repair on noncropland-capable land will not be considered
augmentation if, shortly after the first rainfall event after the repair, the
Department makes the following determinations:
i) the area is a minor erosional
feature;
ii) the area is
small;
iii) the erosion is not
expected to recur; and
iv) the area
is stable.
The Department shall notify the permittee in writing whether or
not a repair is augmentative after making the determination. Such written
notice shall be in the form of an inspection report or other document issued by
the Department.
F)
Augmentation
Wetlands shall be considered augmented when significant
alterations are made to the size or character of the watershed, pumping is used
to maintain water levels, or neutralizing agents, chemical treatments or
fertilizers are applied to the wetland area, except that wetlands managed as
wildlife food plot areas using agricultural techniques shall not be considered
augmented when normal agricultural husbandry practices, such as routine liming
and fertilization, are used. The application of neutralization agents and
fertilizers used for minor remediation work or repairs is considered a normal
husbandry practice and not augmentative. Water level management using permanent
water control structures is considered a normal husbandry practice.
G) Other Management Practices
The Department shall approve the use of deep tillage for prime
farmland and high capability land as a beneficial practice that will not
restart the 5 year period of responsibility, if the following conditions are
met:
i) The permittee has submitted a
request to use the practice and has identified the field that will be deep
tilled;
ii) One or more hay crops,
or other acceptable row crops, have been grown or will be grown to dry out the
subsoil prior to deep tilling the field; and
iii) The Department has determined that the
use of deep tillage will be beneficial to the soil structure and long term crop
production of the field and the benefits will continue well beyond the
responsibility period.
The Department shall notify the permittee in writing of its
decision. Such written notice shall be in the form of an inspection report or
other document issued by the Department.
3) Ground cover and production shall be
considered equal to the approved success standard when they are not less than
90% of the success standard. The sampling techniques for measuring success
shall use a 90% statistical confidence interval (i.e., one-sided t test with a
0.10 alpha error). Vegetative ground cover shall be measured using the
technique set forth in 62 Ill. Adm. Code 1816.117(d). Standards for success
shall be applied in accordance with the approved post-mining land use and, at a
minimum, the following conditions:
A) The
vegetative ground cover for areas previously disturbed by mining operations
that were not reclaimed to the requirements 62 Ill. Adm. Code 1810 through 1828
and that are remined or otherwise redisturbed by surface coal mining
operations, shall not be less than the greater of 70% or the percentage of
ground cover existing before redisturbance, and shall be adequate to control
erosion during the last year of the responsibility period;
B) For areas to be developed for industrial,
commercial or residential use less than 2 years after regrading is completed,
the vegetative ground cover shall not be less than that required to control
erosion and shall not be less than 70%;
C) For areas designated in the approved
reclamation plan as cropland, except those cropland areas subject to 62 Ill.
Adm. Code 1823.15, success of revegetation of cropland areas shall be
determined in accordance with subsection (a)(4) or (a)(6). Crop production
shall be considered successful if it is 90% of that crop production required in
subsection (a)(4) or (a)(6) with 90% statistical confidence (i.e., one-sided t
test with a 0.10 alpha error) for a minimum of any 2 crop years of a 10 year
period prior to release of the performance bond, except the first year of the 5
year responsibility period. During the extended 5 year responsibility period,
erosion from cropland must be minimized using equivalent or better management
practices than surrounding unmined cropland. The 5 year responsibility period
shall begin after the last year of augmented seeding, fertilizing, or soil
treatment and at the time of the planting of the crops to be grown for the
productivity showing or crops grown in rotation. Crop production for proof of
productivity purposes shall be initiated within 10 years after completion of
backfilling and final grading. All cropland shall be maintained using proper
management practices as set forth in subsection (a)(2)(C) until the end of the
responsibility period. Once chosen by the permittee, the productivity
alternative in subsection (a)(6) may not be modified without approval from the
Department;
D) For areas to be
developed for fish and wildlife habitat (including shelter belts), recreation,
or forest products land uses, success of revegetation shall be determined on
the basis of tree and shrub populations and ground cover. The tree and shrub
population and ground cover shall meet the standards described in Section
1816.117;
E) For areas designated
as pasture and/or hayland or grazing land in the approved reclamation plan,
except for erosion control devices and other structures (i.e., levees, ditches,
waterways, impounding structures, etc.) productivity success (tons of grasses
and/or legumes per acre) shall be determined in accordance with subsection
(a)(4) or (a)(6). Productivity shall be considered successful if it is 90% of
the productivity required in subsection (a)(4) or (a)(6) with 90% statistical
confidence (i.e., one-sided t test with a 0.10 alpha error) for a minimum of
any 2 crop years of a 10 year period prior to release of the performance bond,
except the first year of the 5 year extended responsibility period. All
pasture, hayland and grazing land shall be maintained using proper management
practices as set forth in subsection (a)(2)(C) until the end of the
responsibility period. Production for proof of productivity purposes shall be
initiated within 10 years after completion of backfilling and final grading.
Ground cover shall be considered successful if it is 90% with 90% statistical
confidence (i.e., one sided t test with a 0.10 alpha error) for a minimum of
any 2 years of a 10 year period prior to the release of the performance bond,
except the first year of the 5 year extended responsibility period. On high
capability land, the Department shall allow the permittee to substitute corn
production for hay production. If determined to be a proper management practice
in accordance with subsection (a)(2)(C), the Department shall allow the
permittee to substitute one year of crop production of an allowable crop
specified in subsection (a)(4)(D) for one year of hay production on limited
capability land. Once chosen by the permittee, the productivity alternative in
subsection (a)(6) may not be modified without approval from the
Department;
F) Non-contiguous areas
less than or equal to 4 acres which were disturbed from activities such as, but
not limited to, signs, boreholes, power poles, stockpiles and substations shall
be considered successfully revegetated if the permittee can demonstrate that
the soil disturbance was minor, i.e., the majority of the subsoil remains in
place, the soil has been returned to its original capability and the area is
supporting its approved post-mining land use at the end of the responsibility
period.
4) In order to
use the Agricultural Lands Productivity Formula, or the alternative in
subsection (a)(6), to determine success of revegetation, the following shall
apply:
A) The permittee shall submit annually,
by February 15, a one inch equals 500 (1:500) feet or larger scale drawing or
aerial photograph delineating:
i) Field
boundaries, a field numbering scheme and the total acreage for each field which
will be cropped to demonstrate proof of productivity for the coming crop year.
The Department shall approve such submittal if the information is correct and
accurate. Once field boundaries are established in a submittal, the boundaries
shall not be changed without recommencing the responsibility period, unless the
submittal is amended in accordance with subsection (a)(4)(A)(ii); and
ii) The crop (e.g., hay, wheat, corn,
soybeans, etc.) which will be grown on each field to demonstrate proof of
productivity for the coming crop year. The permittee may amend its scale
drawing in accordance with 62 Ill. Adm. Code 1774.13(b)(2) until July 15 of the
submittal year. Each such amendment shall contain a written explanation of
changes from the original submittal and include a map reflecting the changes. A
field is an area of land reclaimed by a single reclamation technique that
comprises either high capability land or prime farmland or limited capability
land. The size of the field and its boundaries are determined by such factors
which include, but are not limited to, contour, non-cropped boundaries and size
of farming equipment.
B)
Fields identified in subsection (a)(4)(A) to be measured for success of
revegetation for cropland shall be planted annually to a single approved crop.
The current sampling method of the Agricultural Lands Productivity Formula
shall apply. Soil and water conservation practices approved in the permit
application including but not limited to grass waterways, diversion ditches,
contour grass strips, and sedimentation ponds within the boundaries of a field
shall be excluded from the sampling requirements of the Agricultural Lands
Productivity Formula and shall remain vegetated with permanent ground cover
species, where appropriate, to conserve soil and water resources. Subject to
rulemaking, the Department in cooperation with the Illinois Department of
Agriculture may determine if a portion of a field is a representative sample of
the entire field when technology has developed to make it possible through
physical and chemical agronomic testing to demonstrate success of vegetation
through soil surveys or when statistically valid sampling procedures are
developed for determining success of revegetation based upon cropping and
sampling a representative portion of the field.
C) Adjustments for abnormal growing
conditions shall be accepted by the Department if the adjustments are certified
by a qualified professional (American Society of Agronomy certified) or
National Association of State Departments of Agriculture crop enumerators used
under this Section, whose ability to perform such adjustments has been
previously approved by the Department.
D) The crops to be grown shall include those
commonly grown on surrounding unmined cropland such as corn, soybeans, hay or
wheat. The Department may approve a hay crop use where this is a common use of
unmined cropland in the surrounding area. Prime farmland and other cropland
areas must include a minimum of one successful year of corn and if the
Department has approved its use, a maximum of one successful year each of hay
and wheat crops, may be used for the productivity demonstration. If deep
tillage has been completed to a minimum depth of 36 inches prior to bond
release, the applicant may use more than one successful year of hay or wheat as
a crop to be used for the productivity demonstration. The requirement for one
successful year of corn remains unchanged under this subsection
(a)(4)(D).
5) Wetland
revegetation shall be deemed successful when:
A) The applicable wetland vegetation criteria
included in the following reference materials have been met: Corps of Engineers
Wetlands Delineation Manual (Department of the Army Technical Report Y-87-1,
January 1987, published by the Department of the Army, Waterways Experiment
Station, Corps of Engineers, P.O. Box 631, Vicksburg, Mississippi 39180-0631),
Regional Supplement to the Corp of Engineers Wetlands Delineation Manual:
Midwest Region (Department of the Army ERDC/EL TR-10-16, August 2010, published
by the Department of the Army, U.S. Army Engineer Research and Development
Center, 3909 Ferry Halls Road, Vicksburg, MS 39180-6199), and the National
Wetland Plant List for the State of Illinois (U.S. Army Corps of Engineers
2018, National Wetland Plant List, version 3.4
http://wetland-plants.usace.army.mil).
The reference materials are available for inspection and copying at the
Department's Springfield office; and
B) Areas designed to support vegetation in
the approved plan shall have a minimum areal coverage of 30%. The testing
procedure in Section 1816.117(d)(1) through (3) shall be used to evaluate the
extent of cover. Areal cover shall be determined to be present if any approved
wetland species is measured at the increment. The percentage of areal cover
shall be established for the area tested by taking the total number of
measurements where areal cover was determined to be present.
6) In order to use the alternative
to the Agricultural Lands Productivity Formula to determine success of
revegetation, the following shall apply: use of this alternative is contingent
upon the permittee demonstrating for the entire field that the soil strength of
the entire soil profile will average [LESS THAN OR EQUAL TO] 200 psi or has
been deep tilled to a minimum depth of 36 inches prior to bond release, and
soil fertility will average Optimum Management for pH, P and K values as
defined under the current Illinois Agronomy Handbook, and intensive land
leveling is implemented, as needed, for the entire field. Areas to be tested
are allowed under the provisions of subsection (a)(3)(C) or (E). The
alternative to the Agricultural Lands Productivity Formula compares reclaimed
field crop yields against an average of the five most recent county yields
adjusted annually for weather variations.
The following substitution of the annual pit base yield
adjustment shall read:
County Success Factor = Average of the Five Previous County
Success Factors
b)
The person who conducts surface mining activities shall:
1) Conduct periodic measurements of
vegetation, soils, and water prescribed or approved by the Department, to
identify if remedial actions are necessary during the applicable period of
liability specified in subsection (a); and
2) Initiate a soil compaction and fertility
testing plan, subject to the approval of the Department, for areas that have
incurred 5 unsuccessful attempts to meet the production required by subsection
(a)(3)(C) or (E) or 62 Ill. Adm. Code 1823.15, or shall initiate deep tillage
under appropriate soil moisture conditions on the areas, subject to the
approval of the Department.
3)
Permittees shall submit by February 15 of each year a report of reclamation
activities conducted during the previous calendar year, which initiate or may
alter the responsibility period or are specifically required by the Department
to evaluate a normal husbandry practice, using forms provided by the
Department. Examples of reclamation activities to be reported and/or evaluated
include but are not limited to crops used in temporary and permanent seedings,
grasses and legumes planted, trees and shrubs planted, soil amendments added,
and location and type of augmentation activities. The forms shall be submitted
with a copy of the approved post-mining land use and capability map depicting
the location of such activities. The map shall be planned as a continuous map
so the reclamation activities conducted each year may be added and indicated on
the map by the dates the activities were conducted.