[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Rules and Regulations]
[Pages 93066-93445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29958]



[[Page 93065]]

Vol. 81

Tuesday,

No. 244

December 20, 2016

Part IV

Book 2 of 2 Books

Pages 93065-93570





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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 30 CFR Parts 700, 701, 773, et al.



Stream Protection Rule; Final Rule

Federal Register / Vol. 81 , No. 244 / Tuesday, December 20, 2016 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 700, 701, 773, 774, 777, 779, 780, 783, 784, 785, 800, 
816, 817, 824, and 827

[Docket ID: OSM-2010-0018; S1D1S SS08011000 SX064A000 178S180110; S2D2S 
SS08011000 SX064A000 17X501520]
RIN 1029-AC63


Stream Protection Rule

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

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE or OSM), are revising our regulations, based on, among other 
things, advances in science, to improve the balance between 
environmental protection and the Nation's need for coal as a source of 
energy. This final rule will better protect water supplies, surface 
water and groundwater quality, streams, fish, wildlife, and related 
environmental values from the adverse impacts of surface coal mining 
operations and provide mine operators with a regulatory framework to 
avoid water pollution and the long-term costs associated with water 
treatment. We have revised our regulations to define ``material damage 
to the hydrologic balance outside the permit area'' and require that 
each permit specify the point at which adverse mining-related impacts 
on groundwater and surface water would reach that level of damage; 
collect adequate premining data about the site of the proposed mining 
operation and adjacent areas to establish an adequate baseline for 
evaluation of the impacts of mining and the effectiveness of 
reclamation; adjust monitoring requirements to enable timely detection 
and correction of any adverse trends in the quality or quantity of 
surface water and groundwater or the biological condition of streams; 
ensure protection or restoration of perennial and intermittent streams 
and related resources; ensure that permittees and regulatory 
authorities make use of advances in science and technology; ensure that 
land disturbed by mining operations is restored to a condition capable 
of supporting the uses that it was capable of supporting before mining; 
and update and codify the requirements and procedures for protection of 
threatened or endangered species and designated critical habitat. 
Approximately thirty percent of the final rule consists of editorial 
revisions and organizational changes intended to improve consistency, 
clarity, accuracy, and ease of use.

DATES: This rule is effective January 19, 2017.

FOR FURTHER INFORMATION CONTACT: For the final rule: Dennis G. Rice, 
Office of Surface Mining Reclamation and Enforcement, U.S. Department 
of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2829. Kathleen G. Sheehan, Esq., Office of Surface 
Mining Reclamation and Enforcement, U.S. Department of the Interior, 3 
Parkway Center, 2nd Floor, Pittsburgh, Pennsylvania 15220. Telephone: 
412-937-2829.
    For the final environmental impact statement: Robin T. Ferguson, 
Office of Surface Mining Reclamation and Enforcement, U.S. Department 
of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2802.
    For the final regulatory impact analysis: Mark Gehlhar, Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2716.
    For information collection matters: John A. Trelease, Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2716.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Why are we revising our regulations?
III. What opportunity did we provide for public comment on the 
proposed rule and supporting documents?
IV. What general comments did we receive on the proposed rule?
V. Tabular Summaries of Revisions and Organizational Changes
VI. How do our final regulations differ from our proposed 
regulations?
    A. Section 700.11(d): Termination and Reassertion of 
Jurisdiction
    B. Section 701.5: Definitions
    C. Section 701.16: How will the stream protection rule apply to 
existing and future permits and permit applications?
    D. Part 773: Requirements for Permits and Permit Processing
    1. Section 773.5: How must the regulatory authority coordinate 
the permitting process with requirements under other laws?
    2. Section 773.7: How and when will the regulatory authority 
review and make a decision on a permit application?
    3. Section 773.15: What findings must the regulatory authority 
make before approving a permit application?
    4. Section 773.17: What conditions must the regulatory authority 
place on each permit issued?
    5. Section 773.20: What actions must the regulatory authority 
take when a permit is issued on the basis of inaccurate information?
    E. Part 774: Revision; Renewal; Transfer, Assignment, or Sale of 
Permit Rights; Post-Permit Issuance Requirements
    1. Section 774.10: When must the regulatory authority review a 
permit?
    2. Section 774.15: How may I renew a permit?
    F. Part 777: General Content Requirements for Permit 
Applications
    1. Section 777.11: What are the format and content requirements 
for permit applications?
    2. Section 777.13: What requirements apply to the collection, 
analysis, and reporting of technical data and to the use of models?
    3. Section 777.14: What general requirements apply to maps and 
plans?
    4. Section 777.15: What information must my application include 
to be administratively complete?
    G. Part 779: Surface Mining Permit Applications--Minimum 
Requirements for Information on Environmental Resources and 
Conditions
    1. Section 779.1: What does this part do?
    2. Section 779.2: What is the objective of this part?
    3. Why are we removing 30 CFR 779.11 and 779.12?
    4. Section 779.19: What information on vegetation must I include 
in my permit application?
    5. Section 779.20: What information on fish and wildlife 
resources must I include in my permit application?
    6. Section 779.21: What information on soils must I include in 
my permit application?
    7. Section 779.22: What information on land use and productivity 
must I include in my permit application?
    8. Section 779.24: What maps, plans, and cross-sections must I 
submit with my permit application?
    H. Part 780: Surface Mining Permit Applications--Minimum 
Requirements for Reclamation and Operation Plans
    1. Section 780.1: What does this part do?
    2. Section 780.2: What is the objective of this part?
    3. Section 780.12: What information must the reclamation plan 
include?
    4. Section 780.13: What additional maps and plans must I include 
in the reclamation plan?
    5. Why are we removing the provisions for air pollution control 
plans in previous 30 CFR 780.15?
    6. Section 780.16: What must I include in the fish and wildlife 
protection and enhancement plan?
    7. Section 780.19: What baseline information on hydrology, 
geology, and aquatic biology must I provide?
    8. Section 780.20: How must I prepare the determination of the 
probable hydrologic consequences of my proposed operation (PHC 
determination)?

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    9. Section 780.21: What requirements apply to preparation and 
review of the cumulative hydrologic impact assessment (CHIA)?
    10. Section 780.22: What information must I include in the 
hydrologic reclamation plan and what information must I provide on 
alternative water resources?
    11. Section 780.23: What information must I include in plans for 
the monitoring of groundwater, surface water, and the biological 
condition of streams during and after mining?
    12. Section 780.24: What requirements apply to the postmining 
land use?
    13. Section 780.25: What information must I provide for 
siltation structures, impoundments, and refuse piles?
    14. Section 780.26: What special requirements apply to surface 
mining near underground mining?
    15. Section 780.27: What additional permitting requirements 
apply to activities in or through an ephemeral stream?
    16. Section 780.28: What additional permitting requirements 
apply to activities in, through, or adjacent to a perennial or 
intermittent stream?
    17. Section 780.29: What information must I include in the 
surface-water runoff control plan?
    18. Section 780.35: What information must I provide concerning 
the minimization and disposal of excess spoil?
    19. Section 780.37: What information must I provide concerning 
access and haul roads?
    I. Part 783: Underground Mining Permit Applications--Minimum 
Requirements for Information on Environmental Resources and 
Conditions
    1. Section 783.24: What maps, plans, and cross-sections must I 
submit with my permit application?
    2. Section 783.26: May I submit permit application information 
in increments as mining progresses?
    J. Part 784: Underground Mining Permit Applications--Minimum 
Requirements for Reclamation and Operation Plans
    1. Section 784.11: What must I include in the general 
description of my proposed operation?
    2. Section 784.13: What additional maps and plans must I include 
in the reclamation plan?
    3. Section 784.19: What baseline information on hydrology, 
geology, and aquatic biology must I provide?
    4. Section 784.20: How must I prepare the determination of the 
probable hydrologic consequences of my proposed operation (PHC 
determination)?
    5. Section 784.21: What requirements apply to preparation and 
review of the cumulative hydrologic impact assessment (CHIA)?
    6. Section 784.22: What information must I include in the 
hydrologic reclamation plan and what information must I provide on 
alternative water resources?
    7. Section 784.23: What information must I include in my plans 
for the monitoring of groundwater, surface water, and the biological 
condition of streams during and after mining?
    8. Section 784.24: What requirements apply to the postmining 
land use?
    9. Why are we removing the provisions for air pollution plans in 
previous 30 CFR 784.26?
    10. Section 784.26: What information must I provide if I plan to 
return coal processing waste to abandoned underground workings?
    11. Section 780.27: What additional permitting requirements 
apply to activities in or through an ephemeral stream?
    12. Section 784.28: What additional permitting requirements 
apply to activities in, through, or adjacent to a perennial or 
intermittent stream?
    13. Section 784.30: When must I prepare a subsidence control 
plan and what information must that plan include?
    14. Section 784.35: What information must I provide concerning 
the minimization and disposal of excess spoil?
    15. Section 784.40: May I submit permit application information 
in increments as mining progresses?
    16. Why are we removing 30 CFR 784.200?
    K. Part 785: Requirements for Permits for Special Categories of 
Mining
    1. Section 785.14: What special provisions apply to proposed 
mountaintop removal mining operations?
    2. Section 785.16: What special requirements apply to proposed 
variances from approximate original contour restoration requirements 
for steep-slope mining?
    3. Section 785.25: What special provisions apply to proposed 
operations on lands eligible for remining?
    L. Part 800: Bond, Financial Assurance, and Liability Insurance 
Requirements for Surface Coal Mining and Reclamation Operations
    1. How have we revised the definitions in 30 CFR 800.5?
    2. Section 800.9: What requirements apply to alternative bonding 
systems?
    3. Section 800.11: When and how must I file a performance bond?
    4. Section 800.12: What types of performance bond are 
acceptable?
    5. Section 800.13: What is the liability period for a 
performance bond?
    6. Section 800.14: How will the regulatory authority determine 
the amount of performance bond required?
    7. Section 800.15: When must the regulatory authority adjust the 
bond amount and when may I request adjustment of the bond amount?
    8. Section 800.16: What are the general terms and conditions of 
the performance bond?
    9. Why are we removing 30 CFR 800.17?
    10. Section 800.18: What special provisions apply to financial 
guarantees for treatment of long-term discharges?
    11. Section 800.21: What additional requirements apply to 
collateral bonds?
    12. Section 800.23: What additional requirements apply to self-
bonds?
    13. Section 800.30: When may I replace a performance bond or 
financial assurance instrument and when must I do so?
    14. Section 800.40: How do I apply for release of all or part of 
a performance bond?
    15. Section 800.41: How will the regulatory authority process my 
application for bond release?
    16. Section 800.42: What are the criteria for bond release?
    17. Section 800.43: When and how must the regulatory authority 
provide notification of its decision on a bond release application?
    18. Section 800.44: Who may file an objection to a bond release 
application and how must the regulatory authority respond to an 
objection?
    19. Section 800.50: When and how will a performance bond be 
forfeited?
    20. Section 800.60: What liability insurance must I carry?
    21. Section 800.70: What special bonding provisions apply to 
anthracite operations in Pennsylvania?
    M. Part 816: Permanent Program Performance Standards--Surface 
Mining Activities
    1. Section 816.1: What does this part do?
    2. Section 816.2: What is the objective of this part?
    3. Section 816.11: What signs and markers must I post?
    4. Section 816.22: How must I handle topsoil, subsoil, and other 
plant growth media?
    5. Section 816.34: How must I protect the hydrologic balance?
    6. Section 816.35: How must I monitor groundwater?
    7. Section 816.36: How must I monitor surface water?
    8. Section 816.37: How must I monitor the biological condition 
of streams?
    9. Section 816.38: How must I handle acid-forming and toxic-
forming materials?
    10. Section 816.40: What responsibility do I have to replace 
water supplies?
    11. Section 816.41: Under what conditions may I discharge to an 
underground mine?
    12. Section 816.42: What Clean Water Act requirements apply to 
discharges from my operation?
    13. Section 816.43: How must I construct and maintain diversions 
and other channels to convey water?
    14. Section 816.45: What sediment control measures must I use?
    15. Section 816.46: What requirements apply to siltation 
structures?
    16. Section 816.47: What requirements apply to discharge 
structures for impoundments?
    17. Section 816.49: What requirements apply to impoundments?
    18. Section 816.55: What must I do with sedimentation ponds, 
diversions, impoundments, and treatment facilities after I no longer 
need them?
    19. Section 816.56: What additional performance standards apply 
to activities in or through an ephemeral stream?
    20. Section 816.57: What additional performance standards apply 
to activities in, through, or adjacent to a perennial or 
intermittent stream?
    21. Section 816.59: How must I maximize coal recovery?

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    22. Section 816.61: Use of Explosives: General Requirements
    23. Section 816.62: Use of Explosives: Preblasting Survey
    24. Section 816.64: Use of Explosives: Blasting Schedule
    25. Section 816.66: Use of Explosives: Blasting Signs, Warnings, 
and Access Control
    26. Section 816.67: Use of Explosives: Control of Adverse 
Effects
    27. Section 816.68: Use of Explosives: Records of Blasting 
Operations
    28. Section 816.71: How must I dispose of excess spoil?
    29. Why are we removing the provisions for rock-core chimney 
drains in 30 CFR 816.72?
    30. Why are we removing the provisions for durable rock fills in 
30 CFR 816.73?
    31. Section 816.74: What special requirements apply to the 
disposal of excess spoil on a preexisting bench?
    32. Section 816.79: What measures must I take to protect 
underground mines in the vicinity of my surface mine?
    33. Section 816.81: How must I dispose of coal mine waste?
    34. Section 816.83: What special requirements apply to coal mine 
waste refuse piles?
    35. Section 816.84: What special requirements apply to coal mine 
waste impounding structures?
    36. Section 816.87: What special requirements apply to burning 
and burned coal mine waste?
    37. Section 816.89: How must I dispose of noncoal mine wastes?
    38. Section 816.95: How must I protect surface areas from wind 
and water erosion?
    39. Section 816.97: How must I protect and enhance fish, 
wildlife, and related environmental values?
    40. Section 816.99: What measures must I take to prevent and 
remediate landslides?
    41. Section 816.100: What are the standards for keeping 
reclamation contemporaneous with mining?
    42. Why are we removing 30 CFR 816.101?
    43. Section 816.102: How must I backfill the mined area and 
configure the land surface?
    44. Section 816.104: What special provisions for backfilling, 
grading, and surface configuration apply to sites with thin 
overburden?
    45. Section 816.105: What special provisions for backfilling, 
grading, and surface configuration apply to sites with thick 
overburden?
    46. Section 816.106: What special provisions for backfilling, 
grading, and surface configuration apply to previously mined areas 
with a preexisting highwall?
    47. Section 816.107: What special provisions for backfilling, 
grading, and surface configuration apply to steep slopes?
    48. Section 816.111: How must I revegetate areas disturbed by 
mining activities?
    49. Why are we removing 30 CFR 816.113 and 816.114?
    50. Section 816.115: How long am I responsible for revegetation 
after planting?
    51. Section 816.116: What are the standards for determining the 
success of revegetation?
    52. Section 816.131: What actions must I take when I temporarily 
cease mining operations?
    53. Section 816.132: What actions must I take when I permanently 
cease mining operations?
    54. Section 816.133: What provisions concerning the postmining 
land use apply to my operation?
    55. Section 816.150: What are the general requirements for haul 
and access roads?
    56. Section 816.151: What additional requirements apply to 
primary roads?
    57. Section 816.180: To what extent must I protect utility 
installations?
    58. Section 816.181: What requirements apply to support 
facilities?
    59. Why are we removing interpretive rule in 30 CFR 816.200?
    N. Part 817: Permanent Program Performance Standards--
Underground Mining Activities
    1. Section 817.11: What signs and markers must I post?
    2. Section 817.34: How must I protect the hydrologic balance?
    3. Section 817.40: What responsibility do I have to replace 
water supplies?
    4. Section 817.44: What restrictions apply to gravity discharges 
from underground mines?
    5. Section 817.57: What additional performance standards apply 
to activities conducted in, through, or adjacent to a perennial or 
intermittent stream?
    6. Section 817.71: How must I dispose of excess spoil?
    7. Section 817.102: How must I backfill surface excavations and 
grade and configure the land surface?
    8. Section 817.121: What measures must I take to prevent, 
control, or correct damage resulting from subsidence?
    9. Why are we removing the interpretive rules in 30 CFR 817.200?
    O. Part 824: Special Permanent Program Performance Standards--
Mountaintop Removal Mining Operations
    P. Part 827: Special Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine
XVII. What effect will this rule have in federal program states and 
on Indian lands?
XVIII. How will this rule affect state regulatory programs?
IX. Procedural Matters and Required Determinations
    A. Regulatory Planning and Review (Executive Orders 12866 and 
13563)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates
    E. Executive Order 12630--Takings
    F. Executive Order 13132--Federalism
    G. Executive Order 12988--Civil Justice Reform
    H. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    I. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Data Quality Act

I. Executive Summary

    Significant advances in scientific knowledge and in mining and 
reclamation techniques have occurred in the more than 30 years that 
have elapsed since the enactment of the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act) \1\ and the adoption of 
federal regulations implementing that law. This rule acknowledges the 
advancements in science, technology, policy, and the law that impact 
coal communities and natural resources, based on our experience and 
engagement with state regulatory authorities, industry, non-
governmental organizations, academia, citizens, and other stakeholders.
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    \1\ 30 U.S.C. 1201 et seq.
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    The rule has the following seven major elements:
     First, the rule defines the term ``material damage to the 
hydrologic balance outside the permit area'' and requires that each 
permit establish the point at which adverse mining-related impacts on 
groundwater and surface water reach an unacceptable level; i.e., the 
point at which adverse impacts from mining would cause material damage 
to the hydrologic balance outside the permit area.
     Second, the rule sets forth how to collect adequate 
premining data about the site of the proposed mining operation and 
adjacent areas to establish a comprehensive baseline that will 
facilitate evaluation of the effects of mining operations.
     Third, the rule outlines how to conduct effective, 
comprehensive monitoring of groundwater and surface water during and 
after both mining and reclamation and during the revegetation 
responsibility period to provide timely information documenting mining-
related changes in water quality and quantity. Similarly, the rule 
addresses the need to require monitoring of the biological condition of 
perennial and certain intermittent streams during and after mining and 
reclamation to evaluate changes in aquatic life. Proper monitoring will 
enable timely detection of any adverse trends and allow timely 
implementation of any necessary corrective measures.

[[Page 93069]]

     Fourth, the rule promotes the protection or restoration of 
perennial and intermittent streams and related resources, especially 
the headwater streams that are critical to maintaining the ecological 
health and productivity of downstream waters.
     Fifth, the rule ensures that permittees and regulatory 
authorities make use of advances in information, technology, science, 
and methodologies related to surface and groundwater hydrology, 
surface-runoff management, stream restoration, soils, and revegetation, 
all of which relate directly or indirectly to protection of water 
resources.
     Sixth, the rule ensures that land disturbed by surface 
coal mining operations is restored to a condition capable of supporting 
the uses that it was capable of supporting before mining or to higher 
or better uses of which there is reasonable likelihood. Soil 
characteristics and the degree and type of revegetation have a 
significant impact on surface-water runoff quantity and quality as well 
as on aquatic life and the terrestrial ecosystems dependent upon 
perennial and intermittent streams. The rule also requires use of 
native species to revegetate reclaimed mine sites unless and until a 
conflicting postmining land use, such as intensive agriculture, is 
implemented.
     Seventh, the rule updates measures to protect threatened 
and endangered species and designated critical habitat under the 
Endangered Species Act of 1973.\2\ It also better explains how the fish 
and wildlife protection and enhancement provisions of SMCRA should be 
implemented.
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    \2\ 16 U.S.C. 1531 et seq.
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    This rule more completely implements SMCRA's permitting 
requirements and performance standards and provides regulatory clarity 
to operators and stakeholders while better achieving the purposes of 
SMCRA as set forth in section 102 of the Act.\3\ In particular, the 
rule more completely realizes the purposes in paragraphs (a), (c), (d), 
and (f) of that section, which include establishing a nationwide 
program to protect society and the environment from the adverse effects 
of surface coal mining operations and assuring that surface coal mining 
operations are conducted in an environmentally protective manner and 
are not conducted where reclamation is not feasible. Furthermore, the 
rule addresses court decisions and strikes the appropriate balance 
between environmental protection, agricultural productivity and the 
Nation's need for coal as an essential source of energy, while 
providing greater regulatory certainty to the mining industry.
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    \3\ 30 U.S.C. 1202.
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Summary of Benefits and Costs

    The final regulatory impact analysis (RIA) for this rule contains a 
detailed discussion of the rule's benefits and costs. We estimate that, 
among other things, the rule's benefits to streams and forests between 
2020 and 2040 will include--
     Restoration of 22 miles of intermittent and perennial 
streams per year.
     Improved water quality in 263 miles of intermittent and 
perennial streams per year downstream of minesites.
     Four miles of intermittent and perennial streams per year 
not being covered by excess spoil fills or coal mine waste facilities.
     Improved reforestation of 2,486 acres of mined land per 
year.
     Avoidance by mining operations of eight acres of forest 
per year.
    In terms of economic impacts, we estimate that the rule will result 
in an average annual employment gain of 156 fulltime equivalents 
between 2020 and 2040. This estimate includes an average annual 
reduction of 124 fulltime equivalents in employment related to coal 
production and an average annual gain of 280 fulltime equivalents in 
industry employment related to implementation of the rule.
    We estimate that the rule will result in an average annual 0.08% 
reduction in coal production between 2020 and 2040, which equates to 
0.7 million tons of coal. That amount includes 0.2 million tons 
produced by surface mining methods (0.04% of the total amount produced 
by surface mining methods) and 0.5 million tons produced by underground 
mining methods (0.14% of the total amount produced by underground 
mining methods). The final RIA projects that this reduction in 
production will be accompanied by an increase in average annual coal 
prices ranging from 0.2% in the Powder River Basin to 1.3% in Central 
Appalachia and the Illinois Basin.
    We estimate that total industry compliance costs per year during 
2020-2040 would average $81 million, which is 0.1% or less of aggregate 
annual industry revenues, ranging from an additional one cent per ton 
of longwall-mined coal on the Colorado Plateau to an additional $1.40 
per ton for surface-mined coal in the Illinois Basin. Of the $81 
million in increased annual costs to industry, surface mining 
operations will bear an estimated $71 million, while underground mining 
operations will absorb $10 million. In the aggregate, state regulatory 
authorities will incur estimated additional costs of $0.5 million per 
year between 2020 and 2040.
    Implementation of this rule will result in reductions in greenhouse 
gas emissions from coal production. Expressed in terms of carbon 
dioxide equivalents, we project that those reductions will total 2.6 
million short tons in 2020. ``Carbon dioxide equivalent'' is a unit 
used to describe the impact of different greenhouse gases on a 
comparative basis by expressing the impact in terms of the amount of 
carbon dioxide that would have the same global warming impact as the 
type and amount of greenhouse gases at issue. We also project that 
implementation of the final rule will result in the annualized benefit 
of $57 million due to the reduced carbon dioxide emissions from fossil 
fuel consumption across the timeframe of the analysis (2020--2040).

II. Why are we revising our regulations?

    Our primary purpose in adopting this rule is to strike a better 
balance between ``protection of the environment and agricultural 
productivity and the Nation's needs for coal as an essential source of 
energy.'' \4\ Specifically, the rule is designed to minimize the 
adverse impacts of surface coal mining operations on surface water, 
groundwater, and site productivity, with particular emphasis on 
protecting or restoring streams, aquatic ecosystems, riparian habitats 
and corridors, native vegetation, and the ability of mined land to 
support the uses that it was capable of supporting before mining. The 
final rule reflects our experience during the more than three decades 
since adoption of the existing regulations, as well as advances in 
scientific knowledge and mining and reclamation techniques during that 
time and consideration of the comments that we received on the proposed 
rule. The final rule more completely implements sections 515(b)(24) and 
516(b)(11) of SMCRA, which provide that, to the extent possible using 
the best technology currently available, surface coal mining and 
reclamation operations must be conducted to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values and 
to achieve enhancement of those resources where practicable.\5\ It also 
updates our regulations concerning compliance with

[[Page 93070]]

the Endangered Species Act of 1973.\6\ In addition, as proposed, we 
have revised and reorganized our regulations for clarity, to make them 
more user-friendly, to remove obsolete and redundant provisions, and to 
implement plain language principles.
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    \4\ 30 U.S.C. 1202(f).
    \5\ See 30 U.S.C. 1265(b)(24) and 1266(b)(11).
    \6\ 16 U.S.C. 1531 et seq.
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    The preamble to the proposed rule sets forth the detailed rationale 
for adoption of this rule and the history of prior rulemaking and 
litigation concerning stream buffer zones and stream protection. See 80 
FR 44436-44585 (Jul. 27, 2015).

Final Environmental Impact Statement (EIS)

    The final EIS for this rule contains an expanded discussion of the 
impacts of mining on the environment. Almost all the literature surveys 
and studies reviewed for this rulemaking process have been published 
since the adoption in 1983 of our principal regulations concerning 
protection of the hydrologic balance \7\ and protection of fish, 
wildlife, and related environmental values,\8\ which underscores the 
need to update our regulations to reflect new scientific understanding 
of impacts associated with coal mining.
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    \7\ 48 FR 43956 (Sept. 26, 1983).
    \8\ 48 FR 30312 (Jun. 30, 1983).
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III. What opportunity did we provide for public comment on the proposed 
rule and supporting documents?

    On July 16, 2015, we announced that the proposed rule, draft 
environmental impact statement (DEIS), and draft regulatory impact 
analysis (DRIA) were available for review at www.regulations.gov, on 
our Web site (www.osmre.gov), and at selected OSMRE offices. On July 
17, 2015, we published a notice in the Federal Register announcing the 
availability of the DEIS for the proposed rule. See 80 FR 42535-42536. 
The notice reiterated that the DEIS was available for review at 
www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the 
notice. The comment period for the DEIS was originally scheduled to 
close on September 15, 2015. On July 27, 2015, we published the 
proposed stream protection rule in the Federal Register. See 80 FR 
44436-44698. That document reiterated that the proposed rule, DEIS, and 
DRIA were available for review at www.regulations.gov, www.osmre.gov, 
and the OSMRE offices listed in the notice. The comment period for the 
proposed rule and DRIA was originally scheduled to close on September 
25, 2015. In response to requests for additional time to review and 
prepare comments on all three documents, we extended the comment period 
for the proposed rule, DEIS, and DRIA through October 26, 2015. See 80 
FR 54590-54591 (Sept. 10, 2015).
    During the public comment period, we held six public hearings on 
the proposed rule in Golden, Colorado (September 1, 2015); Lexington, 
Kentucky (September 3, 2015); St. Charles, Missouri (September 10, 
2015); Pittsburgh, Pennsylvania (September 10, 2015); Big Stone Gap, 
Virginia (September 15, 2015); and Charleston, West Virginia (September 
17, 2015). In addition to the testimony offered at the hearings and 
meetings, we received approximately 94,000 written or electronic 
comments on the proposed rule. In developing the final rule, we 
considered all comments that were germane to the proposed rule. In the 
remainder of this preamble, we summarize the comments received and 
discuss our disposition of those comments and how and why the final 
rule differs from the proposed rule.

IV. What general comments did we receive on the proposed rule?

A. We Should Reopen the Comment Period To Allow Adequate Time for 
Public Review and Comment

    Many commenters contended that we should have extended the time for 
public review and comment on the proposed rule and supporting 
documents. These commenters generally raised objections about the 
amount of material, primarily the proposed rule and its preamble, the 
DEIS, and the DRIA, all of which were lengthy. The commenters noted 
that we cited many studies, reports and supporting documents, which 
would take time to locate and review. Some commenters claimed that they 
lacked staff to review the material and provide meaningful comments 
within the time provided. These commenters stated that the 102 days we 
provided for review was too short, particularly in contrast to the time 
it took us to prepare and propose a rule.
    As described in Part III of this preamble, the stream protection 
rule has been the subject of robust public involvement, starting in 
2009. During that year, we published an advance notice of proposed 
rulemaking,\9\ conducted 15 stakeholder outreach meetings, held nine 
public scoping meetings, and provided two public comment periods 
totaling 76 days on scoping for the DEIS. The scoping process generated 
over 20,500 comments, including input from state regulatory 
authorities.
---------------------------------------------------------------------------

    \9\ 74 FR 62664-64668 (Nov. 30, 2009).
---------------------------------------------------------------------------

    On July 16, 2015, we announced that the proposed rule, DEIS, and 
DRIA were available for review at www.regulations.gov, on our Web site 
(www.osmre.gov), and at selected OSMRE offices. On July 17, 2015, we 
published a notice in the Federal Register announcing the availability 
of the DEIS for the proposed rule. See 80 FR 42535-42536. The notice 
reiterated that the DEIS was available for review at 
www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the 
notice. The comment period for the DEIS was originally scheduled to 
close on September 15, 2015. On July 27, 2015, we also published the 
proposed stream protection rule in the Federal Register. See 80 FR 
44436-44698. That document reiterated that the proposed rule, DEIS, and 
DRIA were available for review at www.regulations.gov, www.osmre.gov, 
and the OSMRE offices listed in the notice. The comment period for the 
proposed rule and DRIA was originally scheduled to close on September 
25, 2015. In response to requests for additional time to review and 
prepare comments on all three documents, we extended the comment period 
for the proposed rule, DEIS, and DRIA through October 26, 2015. See 80 
FR 54590-54591 (Sept. 10, 2015).
    Interested parties, therefore, received a total of 102 days to 
review the proposed rule and supporting documents. During that time, we 
also held six public hearings in Colorado, Kentucky, Missouri, 
Pennsylvania, Virginia, and West Virginia. We received approximately 
95,000 comments from all sources on the proposed rule, DEIS, and DRIA.
    The proposed rule, DEIS, and DRIA included citations to references 
that we relied upon in developing the documents. These reference 
citations were available from the time of publication of the proposed 
rule, DEIS, and the DRIA in the Federal Register. We used these 
references in discussing both specific components of the rule and our 
analysis, as well as for support of our discussion on more general 
concepts. We did not receive any requests for copies of these 
references during the comment period. However, in response to language 
that Congress included in a report accompanying the Consolidated 
Appropriations Act of 2016, Public Law 114-113, we placed all publicly-
available references on www.regulations.gov. Copyright-protected 
materials are easily obtainable through state or university libraries 
or the publisher. We were not able to provide copyright-protected items 
to

[[Page 93071]]

requesters directly because doing so might violate copyright laws. We 
also scheduled meetings between us and state technical personnel to 
discuss the scientific studies and other reference documents on two 
dates (April 14 and 21, 2016). The meetings were held simultaneously in 
Denver, Colorado; Alton, Illinois; and Pittsburgh, Pennsylvania. Staff 
from six state regulatory authorities participated in the meeting on 
April 14, 2016, and staff from five state regulatory authorities 
participated in the meeting on April 21, 2016.
    The comment period we provided fully complies with the 
Administrative Procedure Act, 5 U.S.C. 553, which does not set a 
minimum public comment period for a proposed rule. We also exceeded the 
60-day minimum comment period recommended by Section 6(a)(1) of 
Executive Order 12866 for meaningful public participation. This time is 
comparable to the comment periods for similar regulations that we have 
issued in the past. For example, the now-vacated 2008 stream buffer 
zone rule was subject to a 90-day comment period,\10\ while the comment 
period for the 1978 proposed rule containing most of the original 
permanent regulatory program regulations was 71 days.\11\
---------------------------------------------------------------------------

    \10\ 72 FR 48890 (Aug. 24, 2007); 72 FR 57504 (Oct. 10, 2007).
    \11\ 44 FR 14902, 14908 (Mar. 13, 1979).
---------------------------------------------------------------------------

    It is also noteworthy that many commenters, primarily environmental 
groups, opposed our 30-day extension of the comment period. They 
maintained that 60 days was sufficient to review the materials and 
provide meaningful comment. These and other commenters, including state 
regulatory authorities, were able to provide extensive, detailed, 
meaningful comments on the proposed rule in the comment period 
provided.

B. We Should Further Engage the State Regulatory Authorities Before 
Finalizing the Rule

    Most state and industry commenters urged us to refrain from 
finalizing the proposed rule at this time. Instead, these commenters 
requested that we engage in additional meaningful collaboration with 
the state regulatory authorities. Many of these commenters stated that 
we could benefit further from the insight, experience, and practices of 
the state regulatory authorities when developing the regulatory text, 
final EIS, and final RIA. According to the commenters, we did not 
provide the regulatory authorities and other state agencies that had 
agreed to be cooperating agencies in the National Environmental Policy 
Act of 1969 (NEPA) process with the opportunity for meaningful 
engagement. The commenters expressed their belief that we had not acted 
in accordance with the terms of the memoranda of understanding 
describing the roles and responsibilities for the effort. The 
commenters noted that, as a consequence, all but one of those 
regulatory authorities had terminated their cooperating agency status.
    We have substantially engaged with stakeholders, including the 
regulatory authorities. The rulemaking process began with an advance 
notice of proposed rulemaking, 15 stakeholder outreach meetings, nine 
public scoping meetings, and two public comment periods on the scoping 
for the DEIS. The scoping process generated over 20,500 comments, 
including input from the states. A number of state agencies, including 
state SMCRA regulatory authorities, participated as cooperating 
agencies in the early development of the DEIS for the stream protection 
rule. As of November, 2010, we had sent Chapters 1, 2, 3 and 4 of the 
DEIS to all cooperating agencies. Chapters 1-4 are the heart of an EIS. 
Those chapters include the statement of purpose and need, a description 
of the alternatives considered, a description of the affected 
environment, and an analysis of the environmental consequences of the 
alternatives. The cooperating agencies provided meaningful input and 
comments. We used this information to prepare the DEIS. In response to 
this and other feedback, we revised the DEIS over the next several 
years. Shortly before we announced the availability of the DEIS for 
public comment, all but one of the state regulatory authorities 
voluntarily terminated their role as cooperating agencies.
    We made the DEIS available on July 16, 2015, to all cooperating 
agencies and the public to review and provide input on during the 
public comment period. We subsequently extended the public comment 
period to provide interested parties, including the states, more time 
to review and comment on the DEIS. We conducted six public hearings in 
Colorado, Kentucky, Missouri, Pennsylvania, Virginia and West Virginia 
during the public comment period. Although not required to do so, in a 
letter dated October 7, 2015, prior to the close of the public comment 
period on October 26, 2015, we invited the former cooperating state 
agencies to re-engage as cooperating agencies under NEPA. None accepted 
this invitation. Ultimately, OSMRE received approximately 95,000 
comments, including hundreds of pages of comments from state SMCRA 
regulatory authorities, on the DEIS, DRIA, and the proposed stream 
protection rule. We considered these comments in developing this final 
rule, the final EIS, and the final RIA.
    The Department's Assistant Secretary for Land and Minerals 
Management, the Director of OSMRE, and other OSMRE officials continued 
to meet with representatives of states after the close of the comment 
period, consistent with congressional direction in a report 
accompanying the Consolidated Appropriations Act of 2016, Public Law 
114-113. In addition to meetings with state SMCRA regulatory 
authorities in conjunction with Interstate Mining Compact Commission 
meetings, Department of the Interior and OSMRE representatives have 
either met with or held telephone or video conferences with 14 
different state regulatory authorities since the proposed rule was 
published. We also scheduled meetings of OSMRE and state technical 
personnel to discuss the scientific studies and other reference 
documents on two dates (April 14 and 21, 2016). The meetings were held 
simultaneously in Denver, Colorado; Alton, Illinois; and Pittsburgh, 
Pennsylvania. Staff from six state regulatory authorities participated 
in the meeting on April 14, 2016, and staff from five state regulatory 
authorities participated in the meeting on April 21, 2016. Notice of 
the Final Environmental Impact Statement was published in the Federal 
Register on November 16, 2016 (81 FR 80592 and 81 FR 80664), by OSMRE 
and the U.S. Environmental Protection Agency, respectively.
    We understand the state regulatory authorities wanted more input, 
not only in the EIS, but also in the rule and the RIA. However, through 
this extensive outreach we have met our obligations as set forth in the 
Administrative Procedure Act, NEPA, and the pertinent executive orders 
and have sought the input from state regulatory authorities at crucial 
junctures in the development of the rule--early in the rulemaking 
process and after publication of the proposed rule. These are the 
points where their insights could best shape the proposal and refine 
the final rule without impinging on our deliberative process and our 
ability to craft a rule to meet our purpose and need. The final 
regulations that we are publishing today have been shaped by this 
direct input as well as by the information we have gleaned through our 
oversight of the state programs.

[[Page 93072]]

C. We Have Not Accorded Sufficient Deference to Principles of 
Cooperative Federalism and the Primacy of States With Approved 
Regulatory Programs

    According to numerous commenters, the proposed rule impinges on the 
concepts of cooperative federalism and state primacy in SMCRA. Because 
of this alleged impingement on states' rights under SMCRA, many of 
these commenters asserted that the proposed rule exceeds our statutory 
authority and contravenes the Tenth Amendment to the U.S. Constitution. 
They also charged that it ``flips the central SMCRA mandate of state 
primacy on its heads.''
    We disagree with these commenters. While it is true that primacy 
states play a key role in enforcing SMCRA, it is also true that we 
maintain a role in the implementation and oversight of SMCRA. See, 
e.g., Hodel v. Virginia Surface Mining and Reclamation Ass'n Inc., 452 
U.S. 264, 289 (1981) (``The most that can be said is that the Surface 
Mining Act establishes a program of cooperative federalism that allows 
the States, within limits established by federal minimum standards, to 
enact and administer their own regulatory programs, structured to meet 
their own particular needs.'' (Emphasis added.) These federal standards 
``provide [a] blueprint against which to evaluate [a] state's 
program.'' \12\ The U.S. Supreme Court has held this statutory scheme 
to be a proper exercise of Congressional power under the U.S. 
Constitution. Hodel, 452 U.S. at 290-291.
---------------------------------------------------------------------------

    \12\ Bragg v. W. Va. Coal Ass'n, 248 F.3d 275, 289 (4th Cir. 
2001).
---------------------------------------------------------------------------

    We have clear authority to issue regulations such as this rule to 
establish federal minimum standards. Section 102 of SMCRA sets forth 
thirteen purposes of the Act.\13\ The first of these purposes is to 
``establish a nationwide program to protect society and the environment 
from the adverse effects of surface coal mining operations.'' \14\ 
Several other purposes are related to assuring that surface coal mining 
operations are conducted in a manner that protects the environment.\15\ 
This authority also contains a purpose unique to SMCRA: ``whenever 
necessary, exercise the full reach of Federal constitutional powers to 
ensure the protection of the public interest through effective control 
of surface coal mining operations.'' \16\ SMCRA then vests the 
authority to carry out these purposes with us; specifically, under 
section 201(c)(2), we have clear authority to ``publish and promulgate 
such rules and regulations as may be necessary to carry out the 
purposes of the Act.'' \17\ Our strong federal role, which includes 
updating the federal minimum standards, ensures that regulation of 
surface coal mining and reclamation operations remains environmentally 
protective and is not plagued by many of the problems that led to the 
enactment of SMCRA in the first place. See, e.g., H.R. Rep. No. 95-218, 
at 90 (``For a number of predictable reasons--including insufficient 
funding and the tendency for State agencies to be protective of local 
industry--State enforcement has in the past [i.e., prior to the passage 
of SMCRA in 1977] often fallen short of the vigor necessary to assure 
adequate protection of the environment.''). This rule, therefore, is a 
valid exercise of our authority to update the federal minimum standards 
to reflect 30 years of scientific development and 30 years of 
experience in implementing SMCRA.
---------------------------------------------------------------------------

    \13\ 30 U.S.C. 1202.
    \14\ 30 U.S.C. 1202(a)
    \15\ See, e.g., 30 U.S.C. 1202(d) and (f).
    \16\ 30 U.S.C. 1202(m).
    \17\ 30 U.S.C. 1211(c)(2); See also, id at 1251(b) (``[T]he 
Secretary shall promulgate and publish . . . regulations covering a 
permanent regulatory procedure for surface coal mining and 
reclamation operations performance standards based on and conforming 
to the provisions of Title V . . . .'').
---------------------------------------------------------------------------

    Contrary to the contention of some commenters, we are not 
abrogating primacy. Nor are we creating a rigid one-size-fits-all rule. 
Primacy states can and should tailor their state laws and regulations 
implementing this rule to local conditions as long as they meet minimum 
federal standards and are no less effective than the federal rules in 
meeting the requirements of SMCRA. In addition, the final rule provides 
discretion to the regulatory authority in certain areas, including, but 
not limited to, the following examples:
     Final Sec.  773.15(j): Compliance with the Endangered 
Species Act. Provides the permit applicant and the regulatory authority 
with several options for demonstrating compliance with the Endangered 
Species Act of 1973.
     Final Sec.  780.16(d): Potential Enhancement Measures. The 
regulatory authority has the discretion to determine the type, scope, 
and location of fish and wildlife enhancement measures.
     Final Sec.  780.19(a): Information on Hydrology, Geology, 
and Aquatic Biology, Baseline Information. The regulatory authority has 
the discretion to determine what constitutes ``sufficient detail'' with 
respect to the information required in this section, including the 
location and number of monitoring locations.
     Final Sec.  780.19(b)(6)(ii): Groundwater Information. The 
regulatory authority has the discretion to determine the baseline 
groundwater quality and quantity sampling protocol and subsequent 
analyses of these data.
     Final Sec.  780.19(c)(5): Precipitation Measurements. The 
regulatory authority has the flexibility to determine whether the 
permit applicant must prepare a hydrologic model of the proposed mine 
site.
     Final Sec.  780.19(c)(6)(vii): Assessing the biological 
condition of intermittent and perennial streams. The regulatory 
authority has the flexibility to choose from available scientifically 
defensible protocols, including indices of biological integrity, to 
determine the biological condition of streams.
     Final Sec.  780.21(b)(7): Evaluation Thresholds. The 
regulatory authority has the flexibility to determine the parameters it 
will use as evaluation thresholds.
     Final Sec.  780.27(b)(2): What Permitting Requirements 
Apply to Proposed Activities in or Through Ephemeral Streams? The 
regulatory authority has the flexibility to approve a drainage pattern 
that differs from the premining pattern based upon a variety of site 
specific conditions.
     Final Sec.  780.28(c)(2): Proposed Activities In, Through, 
or Adjacent to Perennial and Intermittent Streams. The regulatory 
authority has the flexibility to approve a drainage pattern or stream-
channel configuration that differs from the premining pattern based 
upon a variety of site-specific conditions.
     Final Sec.  780.28(e)(2): Conversion of Streams. The 
regulatory authority has the flexibility to approve limited stream flow 
regime conversions on a case-by-case basis as long as certain criteria 
are satisfied.
     Final Sec.  780.28(g)(1): Standards for the Restoration of 
Ecological Function to Perennial or Intermittent Streams. The 
regulatory authority has discretion to establish objective criteria for 
determining the standards for restoring the ecological function of a 
reconstructed perennial or intermittent stream.
    The underground mining counterparts to these surface mining 
provisions offer the same flexibilities to the regulatory authority.

D. We Did Not Adequately Demonstrate a Need for This Rulemaking

    Many commenters stated that we have neither provided sufficient 
rationale for the development of this rule nor any evidence to support 
what many commenters consider a complete rewrite of the federal 
regulations implementing SMCRA. A number of commenters also raised 
concerns about whether the proposed rule articulated a legally

[[Page 93073]]

adequate justification for a nationwide rulemaking on issues related to 
stream protection. In particular, some commenters noted that the June 
11, 2009, Memorandum of Understanding (MOU) among the U.S. Department 
of the Army, the U.S. Department of the Interior, and EPA implementing 
the interagency action plan on Appalachian surface coal mining was 
limited to six states in Appalachia and primarily focused on issues 
related to steep-slope mining. The commenters questioned our decision 
to propose a nationwide rule in response to the MOU, which, by its own 
terms, was designed to significantly reduce the harmful environmental 
consequences of surface coal mining operations in Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia and ensure that 
future mining is conducted consistent with federal law. The 2009 MOU 
provided impetus and support for this rulemaking, but it is not the 
sole reason for the rulemaking. After extensive outreach, we determined 
that development of a comprehensive, nationally applicable, stream 
protection rule would be the most appropriate and effective method of 
achieving the purposes and requirements of SMCRA, as well as meeting 
the goals set forth in the MOU. Streams are important components of the 
hydrologic regime everywhere that streams are found, so there is no 
scientific reason to limit stream protection efforts to one region of 
the country or to steep-slope mining. In addition, it is not clear that 
we have authority under SMCRA to conduct rulemaking on a regional 
basis. Section 101(g) of SMCRA \18\ provides that ``surface coal mining 
and reclamation standards are essential in order to insure that 
competition in interstate commerce among sellers of coal produced in 
different States will not be used to undermine the ability of the 
several States to improve and maintain adequate standards on coal 
mining operations within their borders.'' The implication is that the 
surface coal mining and reclamation standards to which it refers must 
be national in scope. In addition, section 102(a) of SMCRA \19\ 
provides that one of the purposes of SMCRA is to ``establish a 
nationwide program to protect society and the environment from the 
adverse effects of surface coal mining operations.'' (Emphasis added.)
---------------------------------------------------------------------------

    \18\ 30 U.S.C. 1201(g).
    \19\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

    Our primary purpose in adopting this final rule is to strike a 
better balance between ``protection of the environment and agricultural 
productivity and the Nation's need for coal as an essential source of 
energy,'' which section 102(f) of SMCRA \20\ lists as one of the 
purposes of SMCRA. Specifically, this final rule will better protect 
the water resources needed by current and future generations for 
drinking, recreation, and wildlife from the adverse effects of coal 
mining, while balancing protection of those resources with the Nation's 
energy needs.
---------------------------------------------------------------------------

    \20\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    The final rule published today reflects advances in science and 
technology, updates 30-year-old regulations, and addresses important 
stream protection and related issues in a manner consistent with SMCRA, 
while providing regulatory certainty to operators. State and industry 
practices helped shape this rule. Many commenters supported the 
proposed rule and encouraged us to proceed with a final rule.
    SMCRA recognizes the importance of nationwide minimum standards for 
the hydrologic balance by not limiting the provisions related to the 
hydrologic balance to any particular types of mining or areas of the 
country as it did with other provisions. Compare, e.g., Section 
510(b)(3) \21\ (no permit may be issued unless the operation has been 
``designed to prevent material damage to the hydrologic balance outside 
the permit area'') with Section 510(b)(5) \22\ (alluvial valley floor 
protections apply only west of the one hundredth meridian west 
longitude). We have never issued regulations that expressly apply only 
to a portion of the country without specific statutory language 
authorizing or mandating adoption of regulations with a geographically-
restricted scope. SMCRA provisions with a geographically-restricted 
scope include sections 510(b)(5) (alluvial valley floors west of the 
one hundredth meridian west longitude), 527 \23\ (special bituminous 
coal mines west of the one hundredth meridian west longitude), 529 \24\ 
(anthracite coal mines regulated by a state), and 708 \25\ (coal mines 
in Alaska, for a limited time only).
---------------------------------------------------------------------------

    \21\ 30 U.S.C. 1260(b)(3).
    \22\ 30 U.S.C. 1265(b)(5).
    \23\ 30 U.S.C. 1277.
    \24\ 30 U.S.C. 1279.
    \25\ 30 U.S.C. 1298.
---------------------------------------------------------------------------

    As stated in our analysis in the final EIS, the need for this final 
rule is to improve implementation of SMCRA, ensure protection of the 
hydrologic balance, and reduce impacts of surface coal mining 
operations on streams, fish, wildlife, and related environmental 
values. The final rule will provide major benefits to water resources, 
not just in the Appalachian Basin, but also in the Illinois Basin. In 
addition, this rule will provide moderate benefits to water resources 
in three other regions--the Colorado Plateau, the Gulf Coast, and the 
Northern Rocky Mountains and Great Plains.\26\ Even if these were the 
only benefits of the rule, and they are not, the benefits to water 
resources alone are sufficient to support and justify a nationwide 
rulemaking.
---------------------------------------------------------------------------

    \26\ FEIS at Chapter 1--Sections 1.1 and 1.2, Table 4.2-15.
---------------------------------------------------------------------------

    As we set forth in the proposed rule and in documents in support of 
the proposed rule, SMCRA provides us with the authority to protect the 
hydrologic balance from coal mining operations nationwide. Despite that 
fact and the benefits that could be realized nationwide, some 
commenters cite data contained in our annual evaluation reports of 
state regulatory programs in an attempt to show that there is no 
nationwide problem. According to these commenters, our annual 
evaluation reports ``show that 90 percent of operations were free of 
any offsite impacts'' and ``routinely include highly positive narrative 
reviews of each state's SMCRA program.''
    While it is true that our annual evaluation reports routinely do 
not indicate problems with the states' implementation of their 
programs, we disagree with the conclusion the commenters attempt to 
draw from this information, i.e., that our experience does not show 
that there is a problem that this rule is designed to address. OSMRE 
inspections and other oversight activities in primacy states, including 
the annual evaluation reports, focus on the success of state regulatory 
authorities in achieving compliance with the approved regulatory 
program for the state. Directive REG-8,\27\ which establishes policy 
and procedures for the evaluation of state regulatory programs, 
specifies that the offsite impacts identified in annual evaluation 
reports do not include impacts from mining and reclamation that are not 
regulated or controlled by the state program. In other words, the 
annual evaluation reports generally do not identify or discuss 
situations in which the existing regulations provide inadequate 
protection. While Directive REG-8 provides discretionary authority for 
evaluations of impacts that are not prohibited by the regulatory 
program, that authority may be exercised only if both OSMRE and the 
state agree to do so, and if they are not characterized as

[[Page 93074]]

offsite impacts. Historically, that discretionary authority has not 
been exercised. Thus, annual reports are of little assistance in 
assessing how the existing minimum federal standards that are 
incorporated into the approved state programs could be improved to 
better implement SMCRA. Part II of the preamble summarizes the water 
quality and land reclamation problems that developed under the previous 
rules. In addition, speakers at the public hearings described their 
experiences with dewatering of streams as a result of subsidence from 
underground mining operations.
---------------------------------------------------------------------------

    \27\ Directive REG-8. ``Oversight of State and Tribal Regulatory 
Programs,'' Transmittal No. 967, January 31, 2011.
---------------------------------------------------------------------------

E. We Should Limit the Final Rule to the Effects of Surface Mining 
Operations and Not Underground Mining Operations

    Several commenters requested that we limit the rule to the effects 
of surface mining operations and not the effects of underground 
operations. These commenters often questioned the adequacy of our 
support for extending stream protections to the areas overlying 
underground mine workings. According to the commenters, the rule would 
make some methods of underground mining operations impractical and 
would effectively prohibit underground mining using longwall 
technology.
    Part IV.K. of this preamble summarizes the principal provisions of 
this rule that directly impact underground mining. The final rule does 
not preclude any specific method of underground mining either directly 
(e.g., a prohibition of underground mining) or indirectly (e.g., make 
underground mining uneconomical or impossible). Our primary focus in 
the proposed rule was to clarify our position that the obligation to 
prevent material damage to the hydrologic balance outside the permit 
area applied to areas overlying the underground workings of an 
underground mine, which is part of the adjacent area as that term is 
defined in Sec.  701.5 of our regulations. As explained in more detail 
in the portion of this preamble that discusses the definition of 
``material damage to the hydrologic balance outside the permit area'' 
in Sec.  701.5 of our regulations, we have always considered the area 
overlying the underground workings of an underground mine to be part of 
the evaluation for prevention of material damage to the hydrologic 
balance outside the permit area. Although this has been our 
longstanding position and is clearly mandated by SMCRA, the definition 
of material damage to the hydrologic balance outside the permit area 
that we are finalizing today removes any of the ambiguity that may have 
resulted in this comment. In addition, to address concerns that 
requiring underground operations to prevent material damage to the 
hydrologic balance outside the permit area would effectively preclude 
any underground mining likely to result is subsidence, we have 
clarified that temporary impacts resulting from subsidence are allowed 
provided they do not rise to the level of material damage to the 
hydrologic balance outside the permit area. This issue is discussed in 
more detail in Part IV, section K of this preamble.

F. We Underestimated the Costs and Regulatory Burden of the Proposed 
Rule to State Regulatory Authorities and Industry

    Numerous commenters expressed concern that the proposed rule would 
impose significant additional costs on the industry and state 
regulatory authorities. Many of these commenters alleged that the costs 
of the proposed rule were grossly understated in the DRIA. Appendix I 
of the final RIA provides responses to all specific comments on the 
DRIA.
    In response to comments received on the DRIA, as well as in 
response to recent changes in the coal market, we revised the DRIA to 
ensure that the final RIA better reflects current circumstances. These 
changes include:
     Updated coal market baseline: Since the DRIA was developed 
conditions in the coal market have changed considerably. As a result, 
we updated the baseline coal production forecast for the final RIA, 
which resulted in an almost 20 percent decrease in the level of coal 
demand and production forecasted under the baseline.
     Updated regulatory baselines. Since the DRIA was 
developed, changes to the regulatory environment have occurred, 
including but not limited to the finalization of the Clean Power Plan 
and ratification of the Paris Agreement made at the 21st Conference of 
the Parties of the United Nations Framework Convention on Climate 
Change. Additional climate policy proposals have been advanced that are 
anticipated to have an effect on coal production nationwide. As a 
result, we updated the final RIA.
     Clarified potential impacts of the rule on longwall 
mining: A number of commenters misinterpreted the proposed rule's 
impacts on longwall mining. The commenters thought longwall mining 
would be impossible under the proposed rule, which would result in 
devastating economic impacts to the underground mining industry. The 
final rule clarifies that the rule does not prohibit temporary impacts 
to streams and other water resources as a result of longwall mining as 
long as those impacts do not rise to the level of material damage to 
the hydrologic balance outside the permit area. The final RIA continues 
to reflect the fact that the final rule will not prohibit longwall 
mining.
     Incorporated economic impact of bonding requirements: The 
DRIA did not include costs associated with bonding requirements for 
restoration of the ecological function of perennial and intermittent 
streams that are mined through. While the bonding requirements for 
stream restoration have been revised, the final rule is nonetheless 
anticipated to result in some additional costs to operators associated 
with this requirement that were not captured in the DRIA. These 
additional costs are reflected in the final RIA.
     Revised administrative costs: A number of commenters 
remarked that the administrative costs of the proposed rule to industry 
and state regulatory authorities appeared to be underestimated in the 
DRIA. Upon further review, we determined that the industry and state 
regulatory authority administrative costs estimated in the DRIA were 
not consistent with OSMRE's Paperwork Reduction Act analysis. As a 
result of updating the RIA to be consistent with the Paperwork 
Reduction Act calculations, administrative costs for industry and the 
state regulatory authorities have increased in the final RIA. As 
discussed below, we also made some changes to the final rule that 
reduced administrative costs to the state regulatory authorities as 
well as to industry.
     Corrected width of streamside vegetative corridor: Some 
commenters questioned whether the engineering analysis had correctly 
interpreted the width of the riparian corridor, known as the streamside 
vegetative corridor in the final rule, which is required to be 
established adjacent to perennial, intermittent, and ephemeral streams 
that are mined through under certain circumstances. Upon further 
review, we determined that the engineering analysis incorrectly assumed 
that a 100-foot riparian corridor was interpreted as being 50 feet on 
either side of a restored stream rather than 100 feet on each side. 
Correction of this incorrect assumption resulted in a modest increase 
in model mine costs.
     Revised impacts to small businesses analysis: The 
Regulatory Flexibility Act

[[Page 93075]]

analysis has been revised in the final RIA to reflect the recent 
changes to the small business size thresholds identified by the Small 
Business Administration for coal mining companies.
     Incorporated the social cost of carbon: In response to 
comments, the final RIA includes an estimate of the benefits related to 
the social costs of carbon of the final rule.
    In summary, compared with the DRIA, the final RIA forecasts lower 
baseline coal production and increased industry compliance costs. Lower 
baseline coal production means that the final rule will have fewer 
adverse impacts to production-related employment and fewer benefits to 
streams and forests.
    The final rule also differs from the proposed rule in several ways 
that should reduce costs and the regulatory burden on state regulatory 
authorities and on the industry. The following list provides examples 
of cost-saving or potentially cost-saving provisions:
     Applicability to existing operations: We added a new 
section, 30 CFR 701.16, specifying when the stream protection rule 
would take effect and to which operations and permit applications it 
would apply. Existing permits will not be subject to the rule unless 
they either add acreage or revise the permit to add a new excess spoil 
fill, coal mine waste refuse pile, or coal mine waste slurry 
impoundment or move or expand the location of an approved excess spoil 
fill or coal mine waste facility.
     Permit application format: We deleted the proposed 
requirement in 30 CFR 777.11 that permit applicants submit their 
applications in electronic form. Regulatory authorities and mining 
companies expressed concern about the expense. Furthermore, we cannot 
guarantee the availability of grant funds to cover installation of 
electronic permitting systems by states. However, transition to 
electronic permitting systems ultimately will result in cost savings 
and greater efficiencies.
     Baseline data and monitoring: First, we are not adopting 
the proposed requirement in 30 CFR 780.19(b) and (c) that the 
regulatory authority extend the baseline data collection period if the 
Palmer Drought Severity Index for that period exceeded certain values. 
The regulatory authority has the discretion to determine whether and 
how long to extend the baseline data collection period under conditions 
of extreme drought or abnormally high precipitation. Second, under 30 
CFR 780.19(b) and (c), the regulatory authority may modify the interval 
or the 12-consecutive-month sampling requirement for groundwater and 
surface water if adverse weather conditions make travel to the sampling 
location hazardous or if the water at that location is completely 
frozen. Third, in 30 CFR 780.19, we deleted six baseline data 
parameters (ammonia, arsenic, cadmium, copper, nitrogen, and zinc) upon 
which coal mining typically has little impact. Fourth, we added 30 CFR 
783.26 and 784.40, which provide that the regulatory authority may 
allow permittees to submit baseline data and development of water 
monitoring plans for areas overlying proposed underground mine workings 
in increments. This will ensure more up-to-date information and avoid 
unnecessarily high data collection and analysis costs at the time of 
the initial permit application. It also will reduce monitoring costs.
     Mining in or near Streams and Excess Spoil: First, we 
revised the definitions of ephemeral, intermittent, and perennial 
streams in 30 CFR 701.5 to clarify that only conveyances with channels 
that have both a bed-and-bank configuration and an ordinary high water 
mark will be classified as streams. Second, final 30 CFR 780.19(c)(3) 
and 780.20(a)(5)(iv) do not include the proposed requirements for 
baseline data and analysis of peak flow magnitude and frequency, actual 
and anticipated usage, and seasonal flow variations for ephemeral 
streams. Third, final 30 CFR 780.19(c)(6) does not include the proposed 
requirement to assess the biological condition of ephemeral streams 
within the proposed permit and adjacent areas. It also modifies the 
proposed requirement to assess the biological condition of intermittent 
streams within the proposed permit and adjacent areas. In the final 
rule, assessment of the biological condition of intermittent streams 
within the proposed area and the adjacent area is required if a 
scientifically defensible protocol has been established for assessment 
of intermittent streams in the state or region in which the stream is 
located. But, if a scientifically defensible bioassessment protocol has 
not been developed in the relevant state or region, a description of 
the biology of each intermittent stream would be required to determine 
the biological condition of the intermittent stream. Fourth, final 30 
CFR 780.28(g) specifies the best technology currently available for 
assessment of the restoration of the ecological function of 
intermittent streams for which no scientifically defensible protocol 
exists consists of the establishment of standards that rely upon 
restoration of the form, hydrologic function, and water quality of the 
stream and reestablishment of streamside vegetation as a surrogate for 
the biological condition of the stream. Finally, the excess spoil fill 
construction requirements in final 30 CFR 816.71(k) require only one 
certified report per calendar quarter and to provide an alternative to 
daily examinations by an engineer or other specialist.
     Soils and Revegetation: First, the final rule does not 
include a provision in proposed 30 CFR 779.19(a) that would have 
required descriptions of vegetative communities in the adjacent area. 
In addition, the final rule does not include the requirement in 
proposed 30 CFR 816.116(b) that revegetation success standards 
demonstrate restoration of the capability of the land to support all 
uses that it was capable of supporting before mining.

G. Whether We Should We Revise the Rule To Provide for Direct 
Enforcement of Water Quality Standards

    Section 816.42 in our previous regulations required that discharges 
of water from areas disturbed by surface mining activities be made in 
compliance with all applicable state and federal water quality laws and 
regulations and with the effluent limitations for coal mining 
operations set forth in 40 CFR part 434. Proposed Sec.  816.42 
contained five paragraphs. Proposed paragraph (a) incorporated previous 
Sec.  816.42 and clarified that permittees must comply with all water 
quality laws, including effluent limitations in the applicable NPDES 
permit. Proposed paragraph (b) explicitly incorporated the longstanding 
requirement for permittees to comply with section 404 of the Clean 
Water Act \28\ if they sought to discharge overburden (including excess 
spoil), coal mine waste, and other materials into waters of the United 
States. Proposed paragraphs (c) through (e) established enforceable 
performance standards requiring proper operation and maintenance of 
water treatment facilities and environmentally appropriate disposition 
of precipitates from those facilities.
---------------------------------------------------------------------------

    \28\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    In the preamble to the proposed rule, we requested comment on 
whether proposed Sec.  816.42(b) should be informational or directly 
enforceable under SMCRA.\29\ As mentioned, this paragraph required that 
discharges of overburden (including excess spoil), coal mine waste, and 
other materials into waters of the United States be made in compliance 
with section 404 of the Clean Water Act and its implementing

[[Page 93076]]

regulations. Commenters were divided on the merits of this issue. 
Several environmental groups and citizens asked us to make standards 
under both sections 402 and 404 of the Clean Water Act directly 
enforceable under SMCRA. These commenters typically suggested changes 
to proposed Sec.  816.42 to clarify that water quality standards 
established under the Clean Water Act are directly enforceable under 
SMCRA. According to these commenters, section 702(a) of SMCRA \30\ and 
prior preamble statements concerning Sec.  816.42 provide authority for 
direct enforcement of water quality standards under SMCRA. Similarly, 
these commenters asked us to clarify whether proposed Sec.  
816.71(a)(7) (excess spoil) and 816.57(b) (mining in, through, or 
adjacent to perennial and intermittent streams) require operators to 
comply with water quality standards and, if so, whether the SMCRA 
regulatory authorities will directly enforce these water quality 
standards. Some commenters asked us to provide for direct enforcement 
of Clean Water Act water quality standards through citizen suits under 
section 520 of SMCRA.
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    \29\ 80 FR 44549 (Jul. 27, 2015).
    \30\ 30 U.S.C. 1292(a).
---------------------------------------------------------------------------

    In contrast, other commenters considered Sec.  816.42 to be 
unnecessary and duplicative of the Clean Water Act. Some commenters 
detailed the Clean Water Act's own ``robust, but carefully tailored, 
enforcement scheme[,]'' which includes both direct enforcement by the 
state Clean Water Act authority of any aspect of the Clean Water Act 
that it has been delegated, enforcement by the U.S. Environmental 
Protection Agency, enforcement by the U.S. Army Corps of Engineers, and 
enforcement by citizen suits under the Clean Water Act. These 
commenters noted that the Clean Water Act does not confer authority on 
other agencies, such as us or state SMCRA regulatory authorities, to 
enforce the Clean Water Act, and the SMCRA regulatory authorities are 
not equipped to do so. Moreover, some commenters claimed that making 
the provisions of the Clean Water Act directly enforceable under SMCRA 
would directly conflict with the Clean Water Act because it would give 
a state with SMCRA primacy the direct authority to enforce violations 
of the Clean Water Act--even where that state does not have full 
delegation to administer Clean Water Act programs. These commenters 
generally urged us to consider this paragraph as informational or to 
remove it altogether.
    In developing the approach we adopted in the final rule about the 
direct enforcement of Clean Water Act provisions under SMCRA, we 
considered the applicable requirements of SMCRA in light of an 
overarching purpose of SMCRA: To protect society and the environment 
from the adverse effects of coal mining operations.\31\ Section 
510(b)(3) of SMCRA specifically provides that coal mining operations 
must be designed to prevent material damage to the hydrologic balance 
outside the permit area.\32\ Likewise, section 508(a)(9) of SMCRA 
provides that a permit application must include ``the steps to be taken 
to comply with applicable air and water quality laws and 
regulations[,]'' \33\ and section 702(a) of SMCRA provides that nothing 
in SMCRA ``shall be construed as superseding, amending, modifying, or 
repealing'' the Clean Water Act or any rule or regulation promulgated 
under the Clean Water Act.\34\ Thus, while we cannot supersede the 
Clean Water Act, under SMCRA, regulatory authorities do have a duty to 
ensure that surface coal mining operations are permitted, operated, 
maintained, and reclaimed in a manner that complies with the Clean 
Water Act, which includes, but is not limited to, compliance with NPDES 
permits and water quality standards.
---------------------------------------------------------------------------

    \31\ See, e.g., 30 U.S.C. 1201(d); 1201(j), 1202(a), 1202(c), 
1202(d), 1202(f), and 1202(m).
    \32\ 30 U.S.C. 1260(b)(3).
    \33\ 30 U.S.C. 1258(a)(9).
    \34\ 30 U.S.C. 1292(a)(3).
---------------------------------------------------------------------------

    Section 816.42 of the final rule is the primary regulation that 
sets forth the duty under SMCRA for coal mining operations to comply 
with the Clean Water Act. This regulation is tailored to accomplish 
this objective while avoiding conflicts between SMCRA regulatory 
authorities and Clean Water Act authorities about what constitutes a 
Clean Water Act violation. In particular, final Sec.  816.42(a) 
clarifies that neither this section of the final rule, nor any action 
taken pursuant to it, supersedes or modifies the authority or 
jurisdiction of federal, state, or tribal agencies responsible for 
administration, implementation, and enforcement of the Clean Water Act 
including decisions that those agencies make pursuant to the authority 
of the Clean Water Act. This includes decisions on whether a particular 
set of facts constitutes a violation of the Clean Water Act.
    With regard to enforcement under SMCRA, final rule Sec.  
816.42(b)(1) retains our longstanding regulatory requirement that coal 
mining operations must comply with all applicable water quality laws 
and regulations, including the effluent limitations set by Clean Water 
Act authorities in NPDES permits under section 402 of the Clean Water 
Act.\35\ Since our final rulemaking in 1982 was promulgated to be 
consistent with effluent limits established by the U.S. Environmental 
Protection Agency, our regulations have required that discharges from 
coal mining operations be in accordance with a valid NDPES permit and 
that this is a performance standard directly enforceable under 
SMCRA.\36\ This approach has been upheld by the Interior Board of Land 
Appeals and has been expressly incorporated by several regulatory 
authorities.\37\ Direct enforcement of the NPDES effluent limitations 
typically begins with an inspector for the SMCRA regulatory authority 
conducting a routine inspection.\38\ During these inspections, water 
samples are taken from sediment pond discharges to verify compliance 
with the SMCRA permits, which incorporates the NDPES effluent 
limitations by reference. When violations of those standards are found, 
a SMCRA notice of violation is issued requiring the violation to be 
corrected.
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    \35\ 33 U.S.C. 1342.
    \36\ 47 FR 47220 (Oct. 22, 1982).
    \37\ West Virginia Highlands Conservancy et al.,152 IBLA 196 
(2000); see also, Ohio Division of Reclamation Policy/Procedure 
Directive 95-2; June 1, 1995.
    \38\ Active mining operations require complete inspections 
quarterly and partial inspections monthly.
---------------------------------------------------------------------------

    With the final rule, we are changing this process slightly. In 
response to Federal agency comments, we have revised final Sec.  
816.42(b)(1) to require the SMCRA regulatory authority to add an 
additional step to the end of the process: Notification of the 
appropriate Clean Water Act authority of any notice of violation issued 
under SMCRA for a violation of an effluent limit. We also added a 
provision requiring the SMCRA regulatory authority to coordinate with 
the Clean Water Act authority whenever necessary to determine if a 
violation exists. This provision is intended to address those 
situations where there may be some uncertainty as to whether in fact a 
violation exists. In addition to ensuring that there is no ambiguity 
about the requirement for a permittee to comply with NPDES effluent 
limits under SMCRA, we have added paragraph (i) to final rule Sec.  
773.17, which requires the regulatory authority to condition every 
permit on compliance with all effluent limitations and conditions in 
any NDPES permit issued by the Clean Water Act authority.
    With regard to enforcement of water quality standards, Sec.  
816.42(b)(2) was also added to make it clear that coal mining 
operations cannot cause or contribute to a violation of any applicable 
water quality standards. In addition, in response to comments, we

[[Page 93077]]

have added language similar to that contained in Sec.  816.42(b)(2) to 
final Sec.  816.57(a)(2) to clarify that activities in, near, or 
through streams may not cause or contribute to a violation of 
applicable water quality standards. Similarly, in response to comments, 
we adopted a provision in final Sec.  816.71(a)(7) which provides that 
the permittee or operator must place excess spoil in a manner that will 
ensure that the fill will not cause or contribute to a violation of 
applicable water quality standards adopted under the authority of 
section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), for surface 
water downstream of the toe of the fill.
    In addition Sec.  816.42(c) of the final rule mirrors proposed 
paragraph (b) and provides that discharges of overburden, coal mine 
waste, and other materials into waters subject to the jurisdiction of 
the Clean Water Act, must be made in compliance with section 404 of the 
Clean Water Act.\39\
---------------------------------------------------------------------------

    \39\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    In order to better ensure compliance with sections 508(a)(9), 
510(b)(3), and 702(a)(3) of SMCRA and address concerns about the role 
of the regulatory authority in assessing violations related to water 
quality standards and section of the Clean Water Act, we added final 
rule Sec.  816.42(d). This provision requires that the regulatory 
authority investigate any situation in which it has information 
indicating that mining activities may be causing or contributing to a 
violation of the water quality standards to which paragraph (b)(2) of 
this section refers, or to a violation of section 404 of the Clean 
Water Act to which paragraph (c) refers. When conducting an 
investigation the SMCRA regulatory authority will coordinate with the 
appropriate Clean Water Act authority. The purpose of the coordination 
is to ensure that both agencies assess the most appropriate course of 
corrective action to remedy any confirmed violation. However, nothing 
in this section precludes the SMCRA regulatory authority from 
initiating enforcement action independently of the Clean Water Act 
authority. In fact, because the SMCRA regulatory authority is 
statutorily obligated to take immediate enforcement action when any 
``permittee is in violation of any requirement of this Act, which 
condition, practice, or violation also creates an imminent danger to 
the health or safety of the public, or is causing, or can reasonably be 
expected to cause significant, imminent environmental harm to land, air 
or water resources'' \40\ it may be necessary for the SMCRA regulatory 
authority to act, at least initially, independently of the Clean Water 
Act authority. In such a situation, after coordination with the Clean 
Water Act authority additional enforcement action may be necessary by 
the SMCRA regulatory authority, the Clean Water Act authority, or both. 
This process of coordination more fully satisfies the mandates of 
section 702(a) of SMCRA.\41\
---------------------------------------------------------------------------

    \40\ 30 U.S.C. 1271(a)(2).
    \41\ 30 U.S.C. 1292(a).
---------------------------------------------------------------------------

    Some commenters also requested that we explicitly allow citizens to 
enforce water quality standards through citizen suits. In our proposed 
rule, we did not propose any changes or ask for comment on the 
enforcement of water quality standards through SMCRA citizen suits. 
Nothing in the proposed or final rule was intended to alter or inhibit 
the ability to initiate citizen suits under SMCRA,\42\ the Clean Water 
Act,\43\ or the Endangered Species Act.\44\ Moreover, we consider any 
questions about the extent of enforcement under the citizen suit 
provision of SMCRA to be beyond the scope of this rule.
---------------------------------------------------------------------------

    \42\ 30 U.S.C. 1271.
    \43\ 33 U.S.C.1365.
    \44\ 16 U.S.C.1531.
---------------------------------------------------------------------------

H. We Should Define ``Existing Uses'' To Be Consistent With Clean Water 
Act Terminology

    The proposed rule contained numerous regulations that refer to 
``existing uses'' in the context of uses of groundwater and surface 
water. With respect to surface water, the regulations at 40 CFR 
131.3(e) implementing the Clean Water Act defines ``existing uses'' as 
``those uses actually attained in a waterbody on or after November 28, 
1975, whether or not they are included in the water quality 
standards.'' We did not propose to define ``existing uses'' in the 
proposed rule, but we stated in the preamble that we interpret the term 
``existing uses'' as meaning those uses in existence at the time of 
preparation of the permit application, regardless of whether those uses 
are designated uses under section 303(c) of the Clean Water Act.\45\ 
See 80 FR 44475 (Jul. 27, 2015). We also stated in the preamble that, 
alternatively, we might replace the term ``existing uses'' with 
``premining uses'' for purposes of clarity. Id. We invited comment on 
which course of action we should take.
---------------------------------------------------------------------------

    \45\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    One commenter stated that the term ``existing uses'' is acceptable 
as long as we distinguish between existing uses and designated uses. 
Another commenter found our de facto definition (``those uses in 
existence at the time of the preparation of the permit application'') 
to be potentially less protective than, and therefore inconsistent 
with, the Clean Water Act definition of ``existing uses'' at 40 CFR 
131.3(e). The commenter asserted that, in the context of a permit 
application prepared in 2016 for a watershed that had no mining 
activity before November 28, 1975, the existing uses in 2016 likely 
would be more impaired than the existing uses before November 28, 1975. 
Preserving the ``existing uses'' at the time of the new 2016 mining 
application might simply perpetuate the existing level of impairment 
caused by prior mining in the same watershed. The commenter argued that 
our rules must provide at least the same level of protection as the 
Clean Water Act definition. The commenter recommended that our rules 
use the term ``premining uses'' and that we interpret that term as 
meaning all uses in existence at the time of the enactment of SMCRA. 
According to the commenter, the statutory mandate to prevent material 
damage to the hydrologic balance outside the permit area means that the 
rule must extend protection to all water sources impaired by mining 
since SMCRA was enacted in 1977.
    Our rule implements SMCRA, not the Clean Water Act, so we are under 
no obligation to adopt the same definition of ``existing uses'' that 
has been adopted under the Clean Water Act, especially when our 
definition pertains to a term (material damage to the hydrologic 
balance outside the permit area) that does not appear in the Clean 
Water Act. We also have not discovered any support for the commenter's 
assertion that Congress intended that we look back to the baseline 
conditions on the date of enactment of SMCRA (August 3, 1977) to 
determine whether an operation is preventing material damage to the 
hydrologic balance outside the permit area. In addition to the 
practical difficulty of determining the baseline condition of water 
bodies on a date almost four decades ago, there is no statutory support 
for viewing the date that SMCRA was enacted as the baseline for 
determining whether an operation will prevent material damage to the 
hydrologic balance outside the permit area. To the contrary, SMCRA 
indicates that such a finding should be made at the time of permit 
application. For instance, section 510(b)(3) of SMCRA \46\ provides 
that the regulatory authority may not approve any application for a

[[Page 93078]]

permit or permit revision unless the regulatory authority finds that 
the proposed operation has been designed to prevent material damage to 
the hydrologic balance outside the permit area. Thus, this section 
implies that the finding on material damage to the hydrologic balance 
outside the permit area should be based upon the assessment of the 
cumulative hydrologic impact of all anticipated mining in the 
watershed. That assessment looks forward to future impacts, not 
backward to impacts that have occurred since 1977.
---------------------------------------------------------------------------

    \46\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    To avoid confusion with the term ``existing uses'' as employed 
under the Clean Water Act, however, we have decided to replace the term 
``existing uses'' with ``premining uses.'' We intend no change in 
practical effect by this change in terminology because ``premining 
uses'' are the uses in existence at the time of preparation of the 
permit application or, in other words, the conditions in existence 
before the proposed or current operation. There are some places in the 
regulations, primarily related to approximate original contour, where 
we address conditions in existence before any mining activities. In 
those instances, we do not use the term premining. Instead, we refer to 
conditions ``prior to any mining'' or ``before any mining''. For 
consistency in terminology, we are making these changes with respect to 
both groundwater and surface water.

I. We Should Remove Provisions That Are Duplicative of or Inconsistent 
With the Clean Water Act

    Several commenters asserted that the proposed rule was inconsistent 
with SMCRA and would conflict with or duplicate the requirements of 
other federal laws--primarily the Clean Water Act. As support, many of 
these commenters cited Section 702 of SMCRA, which provides that 
``[n]othing in this Act shall be construed as superseding, amending, 
modifying, or repealing . . . any of the following Acts or with any 
rule or regulation promulgated thereunder, including, but not limited 
to . . . [t]he Federal Water Pollution Control Act, as amended, the 
State laws enacted pursuant thereto, or other Federal laws relating to 
the preservation of water quality.'' \47\ They also cited In re Surface 
Mining Regulation Litigation, 627 F.2d 1346 (D.C. Cir. 1980) where the 
court held that we exceeded our authority by issuing effluent 
limitations more stringent than those issued by EPA under the Clean 
Water Act. Id. at 1366-1367.
---------------------------------------------------------------------------

    \47\ 30 U.S.C. 1292(a)(3).
---------------------------------------------------------------------------

    These commenters typically failed to appreciate the significance of 
the court's further holding in that case: ``where the [Clean Water Act] 
and its underlying regulatory scheme are silent so as to constitute an 
`absence of regulation' or a `regulatory gap', the Secretary may issue 
effluent regulations without regard to EPA practice so long as he is 
authorized to do so under the Surface Mining Act.'' Id. at 1367 
(emphasis added). Thus, the court expressly held that we, under the 
authority of SMCRA, could issue regulations to address the hydrologic 
impacts of coal mining operations that are not adequately addressed 
under the Clean Water Act. In this final rule, consistent with this 
ruling, we are using our SMCRA authority to fill many of the very 
regulatory gaps that the Court mentioned in In re Surface Mining 
Regulation Litigation. See, e.g., id. (gaps in the Clean Water Act 
include, but are not limited to, ``discharges from abandoned and 
underground mines or from nonpoint sources'' and the ability ``to 
establish standards ``requiring comprehensive preplanning and designing 
for appropriate mine operating and reclamation procedures `to ensure 
protection of public health and safety and to prevent the variety of 
other damages to the land, the soil, the wildlife, and the aesthetic 
and recreational values that can result from coal mining.' '').
    Several commenters argued that this rule was not, in fact, filling 
regulatory gaps, but instead was creating a regime that would be 
inconsistent with the Clean Water Act and associated water quality laws 
and would improperly require SMCRA regulatory authorities to set water 
quality standards and enforce the Clean Water Act. We disagree. The 
Clean Water Act is designed to cover many industries and activities. 
SMCRA, by contrast, is designed to regulate the environmental impacts 
of one specific industry. This distinction is significant because the 
later-enacted statute, SMCRA, unlike the Clean Water Act, provides for 
the regulation of the environmental impacts, including the hydrologic 
impacts, of all phases of mining operations--design, operation, and 
reclamation. Absent SMCRA, coal mining operations that impact waters 
outside the permit area would be subject only to the limited regulation 
authorized by the Clean Water Act. By including requirements in SMCRA 
to regulate the effects of coal mining on water and hydrologic 
balance,\48\ Congress clearly indicated that it intended to go beyond 
the protections it had afforded in the Clean Water Act. In SMCRA, 
Congress required the development of focused design requirements and 
performance standards for surface coal mining operations, including 
numerous standards related to water and the hydrologic balance. Thus, 
as long as these SMCRA standards do not conflict with the Clean Water 
Act, regulation under SMCRA will complement the Clean Water Act 
standards and requirements, which means that the final rule 
legitimately fits within the confines of what Congress intended.
---------------------------------------------------------------------------

    \48\ See, e.g., 30 U.S.C. 1201(c), 1260(b)(3), 1265(b)(2), 
1265(b)(10), 1265(b)(24), 1266(b)(4), 1266(b)(9), 1266(b)(11), 
1266(b)(12), 1266(c).
---------------------------------------------------------------------------

    Although nothing in the proposed rule conflicts with the Clean 
Water Act, because of commenters' concerns and to better effectuate our 
intent to improve coordination with Clean Water Act authorities, we 
modified the proposed rule in several key respects. We discuss these 
changes in more detail in the section-by-section analysis of the final 
rule.\49\
---------------------------------------------------------------------------

    \49\ See, e.g., Sec.  780.21(b)(6)(i) (removing the requirement 
that parameters of concern used to assess the potential for material 
damage to the hydrologic balance be expressed in numerical terms in 
the CHIA); 773.15(e)(3); and Sec.  701.5 (definition of parameters 
of concern).
---------------------------------------------------------------------------

    Some commenters alleged that our proposed rule would conflict with 
the Clean Water Act because it does not afford the same degree of 
flexibility that the statute does. However, our rule does not reduce 
the flexibilities afforded to operators under the Clean Water Act. 
Under our final rule, mining operations may not preclude attainment of 
any designated uses under the Clean Water Act, if such uses have been 
established. Precluding such designated uses would constitute material 
damage to the hydrologic balance outside the permit area under SMCRA. 
However, if no designated use exists, the standard becomes whether the 
operation is precluding any premining use of surface water outside the 
permit area.
    One commenter asserted that designated uses under the Clean Water 
Act are ``aspirational and cannot be met due to ambient values or 
nonpoint sources'' and requested that we better explain what should 
occur in such situations. Another commenter raised similar concerns 
about how this proposed rule would account for the ``flexible and 
adaptive implementation'' of Clean Water Act standards. This commenter 
cited use attainability analysis, variances, and compliance

[[Page 93079]]

schedules and deadlines as examples of the flexible implementation 
inherent in Clean Water Act implementation. To the extent that the 
Clean Water Act provides flexibility, this final rule does not 
supersede, amend, modify, repeal, or otherwise conflict with the Clean 
Water Act. In addition, contrary to comments made by other commenters, 
SMCRA allows for some environmental impacts caused by mining; however, 
these are not without limitation. For example, section 515(b)(10) of 
SMCRA \50\ requires that surface coal mining and reclamation operations 
minimize disturbances to the prevailing hydrologic balance at the mine 
site and in associated offsite areas and to the quality and quantity of 
water in surface and groundwater systems, which means that some damage 
is permissible. However, section 510(b)(3) of SMCRA \51\ effectively 
prohibits approval of a permit application unless the proposed 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area.
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    \50\ 30 U.S.C. 1265(b)(10).
    \51\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

J. We Should Remove the Provisions That Grant ``Veto Power'' Over SMCRA 
Permits to the U.S. Fish and Wildlife Service

    Multiple commenters alleged that the proposed rule gave the U.S. 
Fish and Wildlife Service (FWS) ``veto power'' over issuance of SMCRA 
permits. Specifically, the commenters expressed concern that proposed 
Sec. Sec.  779.20(d)(2)(iv) and 780.16(e)(2)(iv), would subordinate 
state permitting authority to the FWS because those provisions 
specified that the regulatory authority may not approve a permit 
application until all issues related to the Endangered Species Act of 
1973 \52\ are resolved and the regulatory authority has received 
written documentation from the FWS that all such issues have been 
resolved.
---------------------------------------------------------------------------

    \52\ 16 U.S.C. 1531 et seq.
---------------------------------------------------------------------------

    In the final rule, we replaced proposed Sec. Sec.  779.20(d)(2)(iv) 
and 780.16(e)(2)(iv) with a single consolidated provision in Sec.  
780.16(b)(2). That provision specifies that the regulatory authority 
may not approve a permit application before it finds that there is a 
demonstration of compliance with the Endangered Species Act through one 
of the mechanisms listed in Sec.  773.15(j) of the final rule.
    Nothing in SMCRA supersedes the Endangered Species Act or exempts 
surface coal mining operations from compliance with applicable 
provisions of that law and the implementing regulations. Sections 
7(a)(1), (2) and (4) of the Endangered Species Act of 1973 provide 
authority for adoption of the regulations referenced above, which are 
intended to ensure that surface coal mining and reclamation operations 
conducted under approved state and federal SMCRA regulatory programs 
avoid violations of the Endangered Species Act. Section 7(a)(1) of the 
Endangered Species Act \53\ directs federal agencies to use their 
authorities to further the purposes of the Endangered Species Act. 
Section 7(a)(2) of the Endangered Species Act \54\ requires all federal 
agencies, in consultation with FWS or the National Marine and Fisheries 
Service,\55\ to ensure that their actions are not likely to jeopardize 
the continued existence of listed species or destroy or adversely 
modify designated critical habitat. Section 7(a)(4) of the Endangered 
Species Act \56\ requires federal agencies to confer with the FWS on 
any agency action that is likely to jeopardize the continued existence 
of any species proposed to be listed. Other sources of authority for 
this rule are sections 515(b)(24), 515(b)(10), 515(b)(17), and 
201(c)(2) of SMCRA.\57\
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    \53\ 16 U.S.C. 1536(a)(1).
    \54\ 16 U.S.C. 1536(a)(2).
    \55\ The Secretaries of the Department of the Interior and 
Commerce (Secretaries) have the responsibility for administering the 
Endangered Species Act, and have delegated this responsibility to 
the FWS and National Marine Fisheries Service (NMFS), respectively. 
16 U.S.C. 1533. The FWS manages and administers most ESA-listed 
species except marine species, including some marine mammals, and 
anadromous fish, which are the responsibility of NMFS. Id. We 
determined that this rulemaking will not impact any of the species 
under the jurisdiction of the NMFS. However, we included the NMFS in 
all sections of our rule relating to the Endangered Species Act to 
insure that, in the unlikely circumstance that a coal mining 
operation may impact an ESA-listed species or its habitat under the 
jurisdiction of NMFS, the applicant and regulatory authority 
coordinate with the appropriate NMFS office.
    \56\ 16 U.S.C. 1536(a)(4).
    \57\ 30 U.S.C. 1265(b)(24), 1265(b)(10), 1265(b)(17), and 1211, 
respectively.
---------------------------------------------------------------------------

    Section 4 of the Endangered Species Act directs the Secretary of 
the Interior, through the FWS, to list threatened or endangered species 
of fish and wildlife or plants and to designate critical habitat for 
those species.\58\ The Endangered Species Act prohibits the 
unauthorized ``take'' of listed species,\59\ a prohibition that applies 
to all persons and entities, including coal mine permittees and state 
regulatory authorities.\60\
---------------------------------------------------------------------------

    \58\ 16 U.S.C. 1533.
    \59\ 16 U.S.C. 1538(a).
    \60\ 16 U.S.C. 1532(13).
---------------------------------------------------------------------------

    The Endangered Species Act provides several routes by which 
applicants may demonstrate compliance. An applicant may demonstrate 
that the proposed actions would have no effect on listed species. If 
the proposed action may affect a listed species or destroy or cause 
adverse modifications to designated critical habitat, the applicant 
must consult with the FWS under section 7 \61\ of the Endangered 
Species Act for federal permits or for mining plan approvals involving 
leased federal coal. Alternatively, the applicant may utilize the 
procedures of section 10 \62\ of the Endangered Species Act for state 
permits on non-federal lands. Some applicants have obtained incidental 
take coverage by complying with the terms of a biological opinion that 
establishes a process for obtaining incidental take coverage that is 
significantly less time-consuming and less resource-intensive than the 
individual section 7 or section 10 processes. An applicant seeking to 
obtain incidental take coverage under a biological opinion, must comply 
with all the procedures, terms, and conditions of the biological 
opinion. We do not, however, require an applicant to use a biological 
opinion to obtain coverage. A biological opinion merely provides one 
avenue by which an applicant may obtain the coverage it needs against 
civil or criminal liability \63\ for unauthorized take of threatened or 
endangered species in violation of the Endangered Species Act.
---------------------------------------------------------------------------

    \61\ 16 U.S.C. 1536.
    \62\ 16 U.S.C. 1539.
    \63\ 16 U.S.C. 1540.
---------------------------------------------------------------------------

    Paragraphs (j)(1) through (4) of final Sec.  773.15 list four 
pathways by which the applicant and the regulatory authority may 
document compliance with the Endangered Species Act for surface coal 
mining and reclamation operations conducted under a SMCRA regulatory 
program. Paragraph (j)(1) applies when the applicant can document that 
the proposed surface coal mining and reclamation operations would have 
no effect on species listed or proposed for listing as threatened or 
endangered or on designated or proposed critical habitat. The joint 
U.S. Fish and Wildlife Service and National Marine Fisheries Service 
``Final Endangered Species Act Section 7 Consultation Handbook'' (March 
1998) states that the term ``effect'' means any impact, regardless of 
the severity or whether the impact is positive or negative.\64\ 
Further, the implementing Endangered Species Act regulations found at 
50 CFR 402.02, define ``effects of the action'' in relevant part as 
``the direct and indirect effects of an action on the species or 
critical

[[Page 93080]]

habitat, together with the effects of other activities that are 
interrelated or interdependent with that action.''
---------------------------------------------------------------------------

    \64\ Final ESA Section 7 Consultation Handbook, March 1998 (pg. 
xii-xiii).
---------------------------------------------------------------------------

    Paragraphs (j)(2) through (4) apply when the proposed surface coal 
mining and reclamation operations may have an effect on species listed 
or proposed for listing as threatened or endangered or on designated or 
proposed critical habitat for those species. Paragraph (j)(2) allows an 
applicant to obtain protection against liability for incidental take of 
a threatened or endangered species by documenting compliance with a 
valid biological opinion that covers issuance of permits for surface 
coal mining operations and the conduct of those operations under the 
applicable regulatory program. Through the process of completing a 
section 7 consultation on the continuation of existing permits and the 
approval and conduct of future surface coal mining and reclamation 
operations under both state and federal regulatory programs adopted 
pursuant to SMCRA, as modified by this rule, OSMRE and the U.S. Fish 
and Wildlife Service entered into a Memorandum of Understanding to 
improve interagency coordination and cooperation to ensure that 
proposed, threatened, and endangered species and proposed and 
designated critical habitat are adequately protected for all surface 
coal mining and reclamation permitting actions, including exploration 
operations, initial permit issuance, renewals, and significant 
revisions. The MOU complements the U.S. Fish and Wildlife Service's 
2016 programmatic Biological Opinion. Thus, compliance with the terms 
of that biological opinion and the MOU would satisfy final paragraph 
(j)(2).
    Final paragraph (j)(3) applies where we are the regulatory 
authority or where a mining plan is required under part 746 of our 
regulations to mine leased federal coal. This provision specifies that 
the applicant may provide documentation that interagency consultation 
under section 7 of the Endangered Species Act has been completed for 
the proposed operation. The provision may also apply in the case where 
other federal permits are required for the proposed operation, 
depending upon the scope of the formal consultation. Paragraph (j)(4) 
provides an alternative that applies where a state regulatory authority 
is responsible for permitting actions and the proposed operation does 
not involve leased federal coal, and the operator does not utilize 
paragraph (j)(2) or (j)(3), where applicable. It specifies that the 
applicant may provide documentation that the proposed operation is 
covered under a permit issued pursuant to section 10 of the Endangered 
Species Act of 1973.

K. We Should Better Explain How the Definitions of ``Material Damage'' 
and ``Material Damage to the Hydrologic Balance Outside the Permit 
Area'' Apply to Underground Mining Operations

    Section 701.5 contains definitions of both ``material damage'' and 
``material damage to the hydrologic balance outside the permit area.'' 
Many commenters asked that we make revisions to better distinguish 
between the definitions and clarify how they apply to underground 
mining operations. These commenters correctly note that section 
510(b)(3) of SMCRA requires mine operators to prevent ``material damage 
to the hydrologic balance outside the permit area'' but section 
516(b)(1) of SMCRA requires prevention of ``material damage'' caused by 
subsidence from underground operations to the extent technologically 
and economically feasible.\65\ As specified in its definition, the term 
``material damage'' applies only to our subsidence control provisions 
at Sec. Sec.  784.30 and 817.121, which are applicable to underground 
mining operations.
---------------------------------------------------------------------------

    \65\ 30 U.S.C. 1266(b)(1).
---------------------------------------------------------------------------

    As finalized, the definition of the term ``material damage to the 
hydrologic balance outside the permit area'' applies generally to ``an 
adverse impact . . . resulting from surface coal mining and reclamation 
operations, underground mining activities, or subsidence associated 
with underground mining activities.'' These two definitions are 
intended to ensure that all provisions of SMCRA are given effect--
material damage to the hydrologic balance outside the permit area is 
prevented while material damage caused by subsidence is minimized to 
the extent technologically and economically feasible.
    Numerous commenters expressed concern about the potential 
implications of applying the term ``material damage to the hydrologic 
balance outside the permit area'' to underground mining activities and 
subsidence. These commenters objected to application of the definition 
of ``material damage to the hydrologic balance outside the permit 
area'' to areas overlying the underground workings, which are part of 
the ``adjacent area'' as defined in Sec.  701.5. They indicated that 
subsidence can cause a range of different impacts on water quantity and 
quality, including loss of flow through surface fracturing of the 
stream bed, loss of recharge due to a drop in the groundwater table 
below the stream bed elevation, loss of water supply sources like 
springs and seeps, and increased pollutant loadings; e.g., iron, 
aluminum, and sulfate, caused by fracturing of the overburden. They 
noted that these types of hydrologic impacts are often temporary. 
According to the commenters, if the rule categorically required the 
prevention of temporary and permanent hydrologic impacts, some types of 
underground mining, such as longwall mining or other methods using 
planned subsidence, could not occur because those hydrologic impacts 
cannot be completely prevented.
    We find that many of the concerns raised in the comments are 
overstated.
    As noted previously, section 510(b)(3) of SMCRA \66\ requires mine 
operators to prevent ``material damage to the hydrologic balance 
outside the permit area'' but section 516(b)(1) of SMCRA \67\ requires 
prevention of ``material damage'' caused by subsidence from underground 
operations to the extent technologically and economically feasible. In 
keeping with these different and distinct provisions of SMCRA we 
clarified that not all of the impacts that the commenters described 
would necessarily rise to the level of material damage to the 
hydrologic balance outside the permit area. The regulatory authority is 
required to make a determination whether a permittee's proposed 
operation is designed to prevent material damage to the hydrologic 
balance outside the permit area. If the regulatory authority determines 
that it does cause material damage to the hydrologic balance outside 
the permit area, a permit will not be issued. Such a situation would 
occur whenever an adverse impact from subsidence permanently diminishes 
flow (i.e., dewaters) of an intermittent or perennial stream to the 
extent that applicable water quality standards would not be met, or if 
no water quality standard has been established, the premining use would 
not be attained. However, a regulatory authority may determine that 
proposed subsidence-related material damage to surface water or 
groundwater can and will be repaired so that it still meets applicable 
water quality standards, or, if no water quality standard exists or is 
applicable, it still attains its premining use. Diminished flow within 
a short section of a stream segment over a longwall panel that recovers 
within a brief period of time or is repairable may have no discernible 
impact on attainment of water quality

[[Page 93081]]

standards or premining uses and therefore may not constitute material 
damage to the hydrologic balance outside the permit area. The 
regulatory authority will make a determination on whether subsidence 
damage to wetlands, streams, or other water bodies that can be 
corrected, or that will recover naturally, constitutes material damage 
to the hydrologic balance outside the permit area; if it does not rise 
to the level of material damage to the hydrologic balance outside the 
permit area, it may be allowed.
---------------------------------------------------------------------------

    \66\ 30 U.S.C. 1260(b)(3).
    \67\ 30 U.S.C. 1266(b)(1).
---------------------------------------------------------------------------

    We have clarified and revised language in the final rule to ensure 
that longwall mining and other underground mining methods that use 
planned subsidence would not be prohibited, and that temporary impacts 
are allowed so long as they do not rise to the level of material damage 
to the hydrologic impacts outside of the permit area. SMCRA is clear 
that the regulatory authority may not approve any permit application 
for a surface coal mining operation, including one that involves 
underground mining activities, unless the application affirmatively 
demonstrates, consistent with final rule Sec.  773.15, and the 
regulatory authority finds, in writing, that the proposed operation has 
been designed to prevent material damage to the hydrologic balance 
outside the permit area.\68\ Any material damage to the hydrologic 
balance outside the permit area is unacceptable, including damage from 
subsidence, even if it is temporary. As mentioned above, such a 
situation could occur, for example, when subsidence causes a stream to 
dewater to the point that the stream can no longer support its water 
quality standard, or if no water quality standard exists, its premining 
use. If it is determined that a proposed operation would have this 
result, the operational plan would need to be modified to prevent 
subsidence of the stream. That modification could include the use of 
underground mining technology that prevents subsidence, such as room-
and-pillar mining, for that portion of the operation. In order to 
clarify the obligation of the permittee to prevent material damage to 
the hydrologic balance outside the permit area, while recognizing that 
temporary subsidence-related material damage is almost certain to occur 
at planned subsidence operations, we have added new language to Sec.  
817.34(a)(2). This new language makes it clear that while underground 
operations must prevent material damage to the hydrologic balance 
outside the permit area, temporary subsidence related material damage 
that can be repaired or recover naturally may be allowed under Sec.  
817.121(c). As noted previously, however, given the different 
requirements of section 510(b)(3) and section 516(b)(1) of SMCRA,\69\ 
the obligation to prevent material damage to the hydrologic balance 
outside the permit area, as required at section 510(b)(3) of SMCRA is 
not subject to the provision at section 516(b)(1) of SMCRA which 
requires prevention of material damage from subsidence to the extent 
technologically and economically feasible. An operator will not be 
granted an exemption from complying with material damage to the 
hydrologic balance outside the permit area based upon technological and 
economic feasibility where subsidence damage will result in material 
damage to the hydrologic balance outside the permit.
---------------------------------------------------------------------------

    \68\ 30 U.S.C. 1260(b)(3).
    \69\ 30 U.S.C. 1260(b)(3) and 1266(b)(1).
---------------------------------------------------------------------------

    We have also addressed comments about the effects of subsidence on 
land and waters overlying underground mine workings by revising our 
proposed definition of ``material damage'' and our subsidence control 
provisions at Sec.  784.30 (previously located at Sec.  784.20), and 
Sec.  817.121. In addition to addressing concerns raised by commenters 
about the magnitude and longevity of subsidence-related impacts to 
streams, these changes will help reduce the confusion identified by one 
commenter regarding the application of material damage to certain 
features in the subsidence context.
    The definition of ``material damage'' in Sec.  701.5 of the final 
rule applies only in the context of the subsidence control provisions 
of Sec. Sec.  784.30 and 817.121. Among other things, the definition as 
adopted in this final rule specifies that material damage includes 
``[a]ny functional impairment of surface lands, features (including 
wetlands, streams, and bodies of water), structures, or facilities.'' 
Under Sec.  784.30(c), mining may still occur when those features exist 
or may be materially damaged, provided that the applicant submits a 
subsidence control plan and the regulatory authority approves that 
plan. Among other requirements, the subsidence control plan must 
describe the anticipated effects of planned subsidence on wetlands, 
streams, and water bodies and the measures to be taken to mitigate or 
remedy any subsidence-related material damage to those features.\70\ In 
addition, pursuant to Sec.  817.121(c) and (g), the underground mine 
operator must repair damage to surface land and waters, including 
wetlands, streams, and water bodies, to a condition capable of 
maintaining the value and reasonably foreseeable uses that the land was 
capable of supporting before subsidence damage occurred unless the 
regulatory authority determines that restoration is not technologically 
or economically feasible. If those repairs will not be implemented 
within 90 days, the permittee must bond the area as discussed in the 
preamble to final Sec.  817.121(g)(3)(i).
---------------------------------------------------------------------------

    \70\ 784.30(c)(2)(vi) and (c)(2)(viii).
---------------------------------------------------------------------------

    These revisions are consistent with our longstanding position about 
subsidence-related material damage. For instance, in our final rule 
addressing the subsidence provisions of the Energy Policy Act of 
1992,\71\ we stated:
---------------------------------------------------------------------------

    \71\ Public Law 102-486 (Oct. 24, 1992).

    The term material damage, in the context of Sec. Sec.  784.20 
and 817.121 of this chapter, means any functional impairment of 
surface lands, features, structures or facilities. The material 
damage threshold includes any physical change that has a significant 
adverse impact on the affected land's capability to support any 
current or reasonably foreseeable uses, or that causes significant 
loss in production or income, or any significant change in the 
condition, appearance or utility of any structure or facility from 
its pre-subsidence condition. It would also include any situation in 
which an imminent danger to a person would be created.\72\
---------------------------------------------------------------------------

    \72\ 60 FR 16722 (Mar. 31, 1995).

    Nothing in this final rule alters the meaning of the term 
``functional impairment'' in the context of subsidence-related material 
damage. In addition, the preamble to the 1995 rules states that ``[t]he 
definition of `material damage' covers damage to the surface and to 
surface features, such as wetlands, streams, and bodies of water, and 
to structures or facilities.'' \73\ Consistent with that preamble 
description, the addition of the phrase ``wetlands, streams, and water 
bodies'' to our material damage definition should help clarify the 
applicability of the definition to hydrologic features in the 
subsidence context and ensure those damages are corrected in accordance 
with Sec.  817.121.
---------------------------------------------------------------------------

    \73\ Id.
---------------------------------------------------------------------------

    The final rule includes language that requires the regulatory 
authority, when reviewing the determination of the probable hydrologic 
consequences of the operation in accordance with Sec.  784.20 and the 
hydrologic reclamation plan in accordance with Sec.  784.22, to (i) 
make a reasonable effort to assess the potential effects of subsidence 
from the proposed underground mining activities on streams and (ii) 
include remedial measures for any predicted diminution of streamflow as 
a result of subsidence. In summary, the final rule allows

[[Page 93082]]

material damage to wetlands, streams, and water bodies to occur so long 
as the permittee follows the subsidence control provisions in 
Sec. Sec.  784.30 (subsidence control plan), 817.40 (water supply 
replacement), and 817.121 (subsidence prevention and control and 
correction of damage resulting from subsidence). Following these 
regulations means that water supplies will be replaced and that, to the 
extent technologically and economically feasible, wetlands, streams, 
and water bodies will be restored. In addition, we added Sec.  
817.121(c)(2), which requires that the permittee implement fish and 
wildlife enhancement measures, as approved by the regulatory authority 
in a permit revision, to offset subsidence-related material damage to 
wetlands or a perennial or intermittent stream when correction of that 
damage is technologically and economically infeasible. As long as these 
regulations are followed, subsidence damage from an underground mining 
operation that does not rise to the level of material damage to the 
hydrologic balance outside the permit area is allowed.

L. We Should Specify the Location Where an Operation Must Prevent 
Material Damage to the Hydrologic Balance Outside the Permit Area

    A commenter suggested that we provide guidance on the location of 
the point of compliance for determining material damage to the 
hydrologic balance. Section 510(b)(3) of SMCRA \74\ prohibits the 
approval of a permit application unless the application demonstrates 
and the regulatory authority finds in writing that the proposed 
operation has been designed to prevent material damage to hydrologic 
balance outside the permit area. Our existing definition of ``permit 
area'' in Sec.  701.5 of our regulations provides that the permit area 
means ``the area of land, indicated on the approved map submitted by 
the operator with his or her application, required to be covered by the 
operator's performance bond under subchapter J of this chapter and 
which shall include the area of land upon which the operator proposes 
to conduct surface coal mining and reclamation operations under the 
permit, including all disturbed areas; provided that areas adequately 
bonded under another valid permit may be excluded from the permit 
area.'' \75\ Our existing regulations in Sec.  701.5 define ``disturbed 
area'' to mean ``an area where vegetation, topsoil, or overburden is 
removed or upon which topsoil, spoil, coal processing waste, 
underground development waste, or noncoal waste is placed by surface 
coal mining operations.'' \76\ When the definition of ``material damage 
to the hydrologic balance outside the permit area'' that we are 
finalizing today is read in conjunction with the existing definitions 
of ``permit area'' and ``disturbed area,'' it is clear that the point 
of compliance for preventing material damage to the hydrologic balance 
outside the permit area is any point outside those areas of the permit 
boundary as indicated on the approved permit application map. The area 
inside the permit boundary where overburden is removed or where other 
mining activities occur that are required to be bonded for reclamation 
comprise the limits of the disturbed area. Any discharge, including 
those inside the permit area, must be in compliance with applicable 
Clean Water Act provisions as provided in Sec.  816.42 of our final 
regulations; in addition, such discharges must not be comprised of 
toxic mine drainage and cannot result in material damage to the 
hydrologic balance outside the permit area.
---------------------------------------------------------------------------

    \74\ 30 U.S.C. 1260(b)(3).
    \75\ 30 CFR 701.5.
    \76\ Id.
---------------------------------------------------------------------------

    The areas outside the permit area that may be impacted by mining 
activities are within the ``adjacent area'' as that term is defined in 
Sec.  701.5. Generally, paragraph (1) of the definition of ``adjacent 
area'' includes the area outside the proposed or actual permit area 
within which there is a reasonable probability of adverse impacts from 
surface coal mining operations or underground mining activities. 
Moreover, the area comprised within this term will vary with the 
context in which a regulation uses this term. For example, the nature 
of the resource or resources addressed by a regulation in which the 
term ``adjacent area'' appears will determine the size and other 
dimensions of the adjacent area for purposes of that regulation.
    For underground mines, paragraph (2) of the definition specifies 
that the adjacent area includes, ``at a minimum, the area overlying the 
underground workings plus the area within a reasonable angle of 
dewatering from the perimeter of the underground workings.'' Thus, 
surface water and groundwater outside the permit area, but within the 
adjacent area, must be protected from material damage to the hydrologic 
balance outside the permit area. We discuss other issues pertaining to 
the term ``material damage to the hydrologic balance outside the permit 
area'' in the preamble to the definition of that term.

M. What is the relationship among material damage thresholds, 
evaluation thresholds, and water monitoring requirements?

Material Damage Thresholds
    Section 510(b)(3) of SMCRA \77\ provides that the regulatory 
authority may not approve a permit application unless the application 
affirmatively demonstrates and the regulatory authority finds in 
writing that the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. The 
regulatory authority must base this finding on an ``assessment of the 
probable cumulative impact of all anticipated mining in the area on the 
hydrologic balance.'' Our rules refer to that assessment as the 
cumulative hydrologic impact assessment (CHIA). See, e.g., 30 CFR 
780.21. Our rules also designate the area for which the CHIA is 
prepared as the ``cumulative impact area,'' which section 701.5 of this 
final rule defines generally as any area within which impacts resulting 
from a surface or underground coal mining operation may interact with 
the impacts of all existing and anticipated surface and underground 
coal mining on surface-water and groundwater systems, including the 
impacts that existing and anticipated mining will have during mining 
and reclamation until final bond release.
---------------------------------------------------------------------------

    \77\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    The regulatory authority prepares the CHIA after technical review 
of the permit application is complete, using both the information in 
the application and other available data about the cumulative impact 
area. The application components most critical to preparation of the 
CHIA are the baseline data on surface water and groundwater; the 
``determination of the probable hydrologic consequences of the mining 
and reclamation operations, both on and off the mine site,'' required 
by section 507(b)(11) of SMCRA; \78\ which we generally refer to as the 
PHC determination, and the hydrologic reclamation plan required by 
section 508(a)(13) of SMCRA.\79\ Section 780.20 of this final rule 
includes requirements for the PHC determination, while Sec.  780.22 
contains requirements for the hydrologic reclamation plan.
---------------------------------------------------------------------------

    \78\ 30 U.S.C. 1257(b)(11).
    \79\ 30 U.S.C. 1258(a)(13).
---------------------------------------------------------------------------

    Section 780.21(b)(6) of this final rule provides that the 
regulatory authority must identify site-specific numeric or narrative 
material damage thresholds for each permit as part of the CHIA and 
include those thresholds as a condition

[[Page 93083]]

of the permit. These material damage thresholds will become the basis 
for the regulatory authority to objectively determine if a mining 
operation has prevented material damage to the hydrologic balance 
outside the permit area.
    In developing thresholds to define when material damage to the 
hydrologic balance outside the permit area would occur in connection 
with a particular permit, final Sec.  780.21(b)(6)(i) specifies that 
the regulatory authority will, in consultation with the Clean Water Act 
authority, as appropriate, undertake a comprehensive evaluation that 
considers the baseline data collected under Sec.  780.19 of the final 
rule, the probable hydrologic consequences determination prepared under 
Sec.  780.20 of the final rule, applicable water quality standards 
adopted under the authority of section 303(c) of the Clean Water 
Act,\80\ applicable state or tribal standards for surface water or 
groundwater, ambient water quality criteria developed under section 
304(a) of the Clean Water Act,\81\ the biological requirements of any 
species listed as threatened or endangered under the Endangered Species 
Act of 1973,\82\ and other pertinent information and considerations to 
identify the parameters for which thresholds are necessary and what 
numeric or narrative thresholds to use. Final Sec.  780.21(b)(6)(ii) 
specifies that the regulatory authority must, after consulting with the 
Clean Water Act authority, use numeric material damage thresholds when 
possible for contaminants that have water quality criteria set by the 
Clean Water Act.\83\ For contaminants, that do not have water quality 
criteria set, the material damage thresholds can be either numeric or 
narrative.
---------------------------------------------------------------------------

    \80\ 33 U.S.C. 1313(c).
    \81\ 33 U.S.C. 1314(a).
    \82\ 16 U.S.C. 1531 et seq.
    \83\ 33 U.S.C. 1251 et seq.
---------------------------------------------------------------------------

    Final Sec.  780.21(b)(6)(iii) requires that the regulatory 
authority identify the portion of the cumulative impact area to which 
each material damage threshold applies. This provision recognizes that 
the parameters selected and material damage threshold levels may vary 
within the cumulative impact area when appropriate, based upon 
differences in watershed characteristics and variations in the geology, 
hydrology, and biology of the cumulative impact area. For instance, if 
the operation would create point-source or nonpoint-source discharges 
to more than one receiving stream, material damage thresholds for 
surface water may vary from one watershed within the cumulative impact 
area to another, taking into consideration differences in watershed 
characteristics. Similarly, material damage thresholds for groundwater 
may vary from one part of the cumulative impact area to another to 
reflect variations in the geology or subsurface hydrology of the 
cumulative impact area. Regulatory authorities should closely 
coordinate with the relevant state agencies in identifying appropriate 
material damage thresholds for groundwater.
    Material damage thresholds apply at all points outside the permit 
area. Final Sec.  780.21(b)(6)(iv), therefore, provides that in the 
CHIA, the regulatory authority, must identify the points within the 
cumulative impact area at which the permittee will monitor the impacts 
of the operation on surface water and groundwater outside the permit 
area and explain how those locations will facilitate timely detection 
of the impacts of the operation on surface water and groundwater 
outside the permit area.
Evaluation Thresholds
    In the preamble to the proposed rule,\84\ we invited comment on 
whether the final rule should require that the regulatory authority 
establish corrective action thresholds. We explained that corrective 
action thresholds would consist of values for water quality or quantity 
that, while not constituting material damage to the hydrologic balance 
outside the permit area, provide reason for concern that such damage 
may occur in the future if no corrective action is taken. We received 
comments both supporting and opposing the development of corrective 
action thresholds. After considering the comments received, we decided 
to include a requirement in this final rule for thresholds of this 
nature, for the reasons discussed in the preamble to Sec.  
780.21(b)(7).
---------------------------------------------------------------------------

    \84\ 80 FR 44436, 44502 (Jul. 27, 2015).
---------------------------------------------------------------------------

    However, the final rule uses the term ``evaluation thresholds'' 
rather than ``corrective action thresholds'' because exceedance of this 
type of threshold does not necessarily require initiation of corrective 
action. Instead, an evaluation threshold identifies the point at which 
the regulatory authority must investigate the cause of an adverse trend 
in water quality or quantity outside the permit area. If the 
investigation finds that the mining operation is responsible for the 
adverse trend and that the adverse trend is likely to continue in the 
absence of corrective action, Sec.  780.21(b)(7)(ii) of the final rule 
requires that the regulatory authority issue a permit revision order 
under Sec.  774.10. That order must require that the permittee reassess 
the adequacy of the PHC determination prepared under Sec.  780.20 and 
the hydrologic reclamation plan approved under Sec.  780.20 and develop 
appropriate measures to minimize the possibility that the operation 
could cause material damage to the hydrologic balance outside the 
permit area in the future. The purpose of setting evaluation thresholds 
and establishing monitoring points is to detect impacts and provide an 
early warning system to alert both the permittee and the regulatory 
authority of adverse trends that, left uncorrected, would result in 
material damage to the hydrologic balance outside the permit area if 
the trajectory of the trend remains unaltered. Early detection of 
adverse trends and timely implementation of corrective measures 
benefits both the environment and the permittee by preventing the 
development of water quality or quantity problems that may be 
difficult, expensive, or impossible to correct. Use of evaluation 
thresholds also may assist in avoiding SMCRA permit violations.
    Section 780.21(b)(7) of the final rule requires that the regulatory 
authority identify evaluation thresholds for critical water quality and 
quantity parameters. These critical parameters are characterized as 
those that could rise to the level of material damage. We expect that 
the regulatory authority will use best professional judgment in 
determining which parameters are critical. The final rule does not 
dictate how the regulatory authority must identify appropriate 
evaluation thresholds for critical parameters, which means that the 
regulatory authority has considerable flexibility. For example, the 
regulatory authority may decide to apply an across-the-board percentage 
reduction from the corresponding material damage thresholds or it may 
decide to determine evaluation thresholds on a case-by-case basis.
    An exceedance of an evaluation threshold is not itself a violation 
under SMCRA or the SMCRA permit because evaluation thresholds are not 
incorporated as a condition of the permit and do not constitute 
enforceable standards. Moreover, exceedances of evaluation thresholds 
may not necessarily be the result of the mining operation. For that 
reason, an exceedance of an evaluation threshold only triggers a 
requirement under final Sec.  780.21(b)(7) that the regulatory 
authority determine the cause of the exceedance in consultation with 
the Clean Water Act authority, as appropriate. If the mining operation 
is

[[Page 93084]]

responsible for the exceedance and if the adverse trend is likely to 
continue in the absence of corrective action, final Sec.  780.21(b)(7) 
provides that the regulatory authority must issue a permit revision 
order under Sec.  774.10. The order must require that the permittee 
reassess the adequacy of the PHC determination prepared under Sec.  
780.20 and the hydrologic reclamation plan approved under Sec.  780.22 
and develop measures to prevent material damage to the hydrologic 
balance outside the permit area. Section 780.21(c)(1) of the final rule 
provides that, upon receipt of an application for a significant permit 
revision, the regulatory authority must determine whether there is a 
need for a new or updated CHIA.
    We encourage the permittee to identify any exceedance of an 
evaluation threshold as part of its review of water monitoring records 
and notify the regulatory authority, which will then determine how to 
proceed with determining the cause of the exceedance. Additionally, the 
SMCRA inspector will, as part of each complete inspection conducted on 
a quarterly basis, review water monitoring records to determine if an 
evaluation threshold has been exceeded. If the inspector identifies an 
exceedance, the regulatory authority, in consultation with the Clean 
Water Act authority, as appropriate, will then determine the cause of 
the exceedance and, if necessary, issue an order requiring that the 
permittee submit a permit revision application, as discussed above. In 
addition, Sec.  780.21(c)(2) of the final rule provides that the 
regulatory authority must reevaluate the CHIA at intervals not to 
exceed three years to determine whether the CHIA remains accurate and 
whether the material damage and evaluation thresholds in the CHIA and 
the permit are adequate to ensure that material damage to the 
hydrologic balance outside the permit area will not occur. This review 
must consider all biological and water monitoring data from all surface 
coal mining and reclamation operations within the cumulative impact 
area.
    We are the regulatory authority in Tennessee. We have used 
evaluation thresholds successfully in our Knoxville Field Office (KFO) 
for many years, resulting in cost-effective and practical improvements 
to water quality. For example, KFO routinely uses an evaluation 
threshold of 1.0 mg/l for iron in a receiving stream. Water monitoring 
data for a site subsequently documented an exceedance of that threshold 
after the surface mining operation disturbed flooded abandoned 
underground mine workings. The permittee had attempted to divert the 
flow from those workings to a pond for treatment. However, the 
diversion was not fully successful, and some of the water entered the 
receiving stream without treatment. KFO required the permittee to 
construct a three-cell wetland treatment system and divert all water 
from the underground workings to that system, which is successfully 
treating the water. This corrective action prevented material damage to 
the hydrologic balance from occurring. KFO conducted the investigation 
jointly with the Tennessee Clean Water Act permitting authority.
Monitoring
    Final rule Sec.  780.23(a) and (b) require that each permit 
application include plans to monitor both surface water and 
groundwater. Those paragraphs also provide that the plans must be 
adequate to evaluate the impacts of the mining operation on surface 
water and groundwater in the proposed permit and adjacent areas and to 
determine in a timely manner whether corrective action is needed to 
prevent the operation from causing material damage to the hydrologic 
balance outside the permit area. Among other things, the final rule 
requires that the plans include monitoring points at the locations 
specified in the CHIA prepared by the regulatory authority under Sec.  
780.21(b)(6)(iv) of the final rule.
    Paragraphs (a)(1)(iii) and (b)(1)(iv) of final Sec.  780.23 require 
that the permittee establish a sufficient number of appropriate 
monitoring locations to evaluate the accuracy of the findings in the 
PHC determination, to identify adverse trends, and to determine, in a 
timely fashion, whether corrective action is needed to prevent material 
damage to the hydrologic balance outside the permit area. Under final 
Sec.  780.23(b)(1)(iv)(B), the surface water monitoring plan must 
include upgradient and downgradient monitoring locations in each 
perennial and intermittent stream within the proposed permit and 
adjacent areas, with the exception that no upgradient monitoring 
location is needed for a stream when the operation will mine through 
the headwaters of that stream. Similarly, under final Sec.  
780.23(a)(1)(iii)(A), the groundwater monitoring plan must include 
monitoring wells or equivalent monitoring points located upgradient and 
downgradient of the proposed operation. That requirement applies to 
each aquifer above or immediately below the lowest coal seam to be 
mined.
    Paragraphs (a)(2)(i) and (b)(2)(i) of final Sec.  780.23 specify 
that, at a minimum, the surface water and groundwater monitoring plans 
must provide for the monitoring of those parameters for which 
evaluation thresholds exist under Sec.  780.21(b)(7). In addition, 
paragraphs (a)(2)(ii) and (b)(2)(ii) of final Sec.  780.23 require 
analysis of each sample for the baseline parameters listed in Sec.  
780.19(a)(2) and for all parameters for which evaluation thresholds 
exist under Sec.  780.21(b)(7).
    Final Sec.  816.35(a)(2) requires that the permittee conduct 
groundwater monitoring through mining, reclamation, and the applicable 
revegetation responsibility period under Sec.  816.115 of the final 
rule for the monitored area. The permittee must continue to monitor 
groundwater beyond that date for any additional time needed for 
monitoring results to demonstrate that the criteria of Sec.  
816.35(d)(1) and (2) have been met, as determined by the regulatory 
authority. Paragraphs (d)(1) and (2) of Sec.  816.35 establish the 
conditions under which the regulatory authority may approve 
modification of the groundwater monitoring requirements, including the 
parameters monitored and the sampling frequency. For example, the 
regulatory authority may reduce the frequency of groundwater monitoring 
from quarterly to annual if it determines that the reduced frequency 
will be adequate to detect adverse trends in a timely manner, based on 
the rate of groundwater movement.
    Specifically, paragraphs (d)(1) and (2) of final Sec.  816.35 
provide that the permittee may request, and the regulatory authority 
may approve, modification of the groundwater monitoring plan based on a 
demonstration that, with respect to the parameter or parameters 
affected by the proposed modification, future adverse changes in 
groundwater quantity or quality are unlikely to occur and the operation 
has--
     Minimized disturbance to the hydrologic balance in the 
permit and adjacent areas;
     Prevented material damage to the hydrologic balance 
outside the permit area;
     Preserved or restored the biological condition of 
perennial and intermittent streams within the permit and adjacent areas 
for which baseline biological condition data was collected under Sec.  
780.19(c)(6)(vi) when groundwater from the permit area provides all or 
part of the base flow of those streams;
     Maintained or restored the availability and quality of 
groundwater to the extent necessary to support the approved postmining 
land uses within the permit area; and

[[Page 93085]]

     Protected or replaced the water rights of other users.
    Nothing in Sec.  816.35(d)(1) and (2) authorize complete 
discontinuance of monitoring at any monitoring location (except as 
approved under Sec.  784.40 for certain underground mines) or 
discontinuance of monitoring of all parameters for the entire operation 
before expiration of the applicable revegetation responsibility period 
under Sec.  816.115 for the monitored area. Given the typically slow 
rate of groundwater movement and the length of time needed to 
reestablish the water table in the backfilled area, discontinuance of 
monitoring before expiration of the applicable revegetation 
responsibility period under Sec.  816.115 likely would result in 
discontinuance of groundwater monitoring before groundwater within the 
reclaimed permit area has reached equilibrium with groundwater in the 
adjacent area. That result would negate the purposes of the monitoring 
program, one of which is to evaluate whether the operation has caused 
material damage to the hydrologic balance outside the permit area.
    Final Sec.  816.36 contains identical requirements for surface 
water monitoring, with the exception that paragraph (a)(2) requires 
that surface water monitoring continue through mining and during 
reclamation until the regulatory authority releases the entire bond 
amount for the monitored area under Sec. Sec.  800.40 through 800.43. 
This difference reflects the fact that surface water monitoring, unlike 
groundwater monitoring, does not involve wells that the permittee must 
seal or transfer under Sec.  816.13 of the final rule before applying 
for final bond release. In addition, final Sec.  816.36(d)(2) contains 
one additional requirement for modification of the surface water 
monitoring plan for a permit: The permittee must demonstrate that the 
operation has not precluded attainment of any designated use of surface 
water under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c).
    Paragraph (c) of final section 780.23 further requires that the 
permit application include a plan for monitoring the biological 
condition of each perennial and intermittent stream within the proposed 
permit and adjacent areas for which baseline biological condition data 
was collected under Sec.  780.19(c)(6)(vi). The plan must be adequate 
to evaluate the impacts of the mining operation on the biological 
condition of those streams and to determine in a timely manner whether 
corrective action is needed to prevent the operation from causing 
material damage to the hydrologic balance outside the permit area.

N. What effect will the final rule have on proposed operations in 
impaired watersheds?

    Each Clean Water Act authority is required to conduct an assessment 
of each stream within state borders to determine if the water is 
meeting all state and federal water quality criteria. If a stream is 
not meeting all state and federal water quality criteria, it is 
considered to be impaired. Under section 303(d) of the Clean Water Act, 
each state is required to submit a list of these impaired waters to the 
Environmental Protection Agency ``from time to time'' (but at least 
every three years). Section 303(d) of the Clean Water Act also requires 
each state to prioritize the waters on the impaired waters list and 
develop a plan to rehabilitate the stream so that it is able to meet 
all state and federal water quality criteria. This plan involves 
estimating the total maximum daily load (TMDL) of various water quality 
parameters from all known and reasonably foreseeable sources (point and 
non-point sources) that an impaired stream is expected to contain while 
moving along its flow path. The plan's objective is to decrease the 
pollutant load and enable the stream to meet all state and federal 
water quality standards. These TMDLs serve as a blueprint to ensure 
that an impaired stream meets all state and federal water quality 
criteria and achieves its highest designated use.
    TMDLs can be calculated to implement a narrative stream condition 
or to focus on a specific parameter.\85\ Once the TMDL is calculated, 
each new individual point-source discharge is assigned a waste load 
allocation based on its estimated discharge flow rate and parameter 
concentration. The Clean Water Act authority may adjust effluent 
limitations in existing NPDES permits to reflect the waste load 
allocation for each parameter under consideration in the TMDL. When the 
waste load allocations are implemented as concentration-based limits in 
NPDES permits, the limits are derived from the calculated waste load 
allocation for the outfall and an assumed flow rate. This concentration 
limit is expressed in concentration units applicable to each specific 
parameter and is normally given as a mass/volume (e.g., mg/L). Waste 
load allocations are often implemented in NPDES permits as mass-based 
limits and expressed as pounds per day.
---------------------------------------------------------------------------

    \85\ For example, if the Clean Water Act authority determined 
that a stream was impaired because of excess sediment, it would 
calculate the sediment load the stream could assimilate from all 
point and non-point sources while maintaining its designated use. 
That TMDL for sediment would be expressed numerically (e.g., 1000 
pounds of suspended sediment per day). The Clean Water Act authority 
would then allocate a portion of that TMDL amount among all known 
and reasonably foreseeable NPDES permits and non-point sources that 
do not have an NPDES permit.
---------------------------------------------------------------------------

    Both the applicant and the regulatory authority need to carefully 
consider the impact of a proposed operation on the impaired hydrologic 
conditions in a watershed with a 303(d)-listed water. Under section 
510(b)(3) of SMCRA and Sec.  773.15(e) of this final rule, the SMCRA 
regulatory authority may not approve a permit application unless the 
applicant demonstrates, and the regulatory authority finds, that the 
proposed operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area. Before making this finding, 
the SMCRA regulatory authority must prepare a cumulative hydrologic 
impact analysis (CHIA) that identifies and analyzes the cumulative 
impacts of all anticipated mining, including the proposed operation, on 
the hydrologic balance in the cumulative impact area, including impacts 
on the water quality and biology of the receiving stream. See final 
paragraphs (a) and (b) of Sec.  780.21. Both the definition of 
``material damage to the hydrologic balance outside the permit area'' 
in Sec.  701.5 of this final rule and the CHIA regulations that we are 
adopting in Sec.  780.21(b)(6) of this final rule provide that the 
regulatory authority must consult with the Clean Water Act authority, 
as appropriate, in determining whether the proposed operation would 
cause material damage to the hydrologic balance outside the permit 
area.

O. Should ephemeral streams receive the same protections as 
intermittent and perennial streams?

    Scientific studies completed since the enactment of SMCRA and the 
adoption of our existing rules have documented the importance of 
headwater streams in maintaining the ecological health and function of 
streams down gradient of headwater streams. Headwater streams include 
all first-order and second-order streams without regard to whether 
those streams are perennial, intermittent, or ephemeral. In 2015, U.S. 
Environmental Protection Agency published a report summarizing the 
findings of peer-reviewed studies of headwater streams and wetlands and 
the impact they have on the physical, chemical, and biological 
integrity of downstream

[[Page 93086]]

waters.\86\ The studies and the report generally do not differentiate 
among perennial, intermittent, and ephemeral streams, but the report 
emphasizes that ephemeral streams are an important component of 
headwater streams and that they have an effect on the form and function 
of downstream channels and aquatic life. The report states that the 
evidence unequivocally demonstrates that the stream channels, riparian 
wetlands, floodplain wetlands, and open waters that together form river 
networks are clearly connected to downstream waters in ways that 
profoundly influence downstream water integrity.\87\ According to the 
report, the body of literature documenting connectivity and downstream 
effects is most abundant for perennial and intermittent streams and for 
riparian and floodplain wetlands.\88\ The report further states that, 
although less abundant, the evidence for connectivity and downstream 
effects of ephemeral streams is strong and compelling, particularly in 
context with the large body of evidence supporting the physical 
connectivity and cumulative effects of channelized flows that form and 
maintain stream networks.\89\
---------------------------------------------------------------------------

    \86\ U.S. Environmental Protection Agency. Connectivity of 
Streams and Wetlands to Downstream Waters: A Review and Synthesis of 
the Scientific Evidence (Final Report). U.S. Environmental 
Protection Agency, Washington, DC. EPA/600/R-14/47F, 2015. Available 
at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414&CFID=62302143&CFTOKEN=44785139 (last 
accessed October 26, 2016).
    \87\ Id. at ES-7.
    \88\ Id.
    \89\ Id.
---------------------------------------------------------------------------

    The report identifies five principal contributions of ephemeral 
streams: (1) Providing streamflow to larger streams; (2) conveying 
water into local storage compartments such as ponds, shallow aquifers, 
or streambanks that are important sources of water for maintenance of 
the baseflow in larger streams; (3) transporting sediment, woody 
debris, and nutrients; (4) providing the biological connectivity that 
is necessary either to support the life cycle of some invertebrates or 
to facilitate the transport of terrestrial invertebrates that serve as 
food resources in downstream communities; and (5) influencing 
fundamental biogeochemical processes such as the assimilation and 
transformation of nitrogen that may otherwise have detrimental impacts 
on downstream communities. In addition, headwater streams, including 
ephemeral and intermittent streams, shape downstream channels by 
accumulating and gradually or episodically releasing stored materials 
such as sediment and large woody debris.\90\ These materials help 
structure stream and river channels by slowing the flow of water 
through channels and providing substrate and habitat for aquatic 
organisms.\91\
---------------------------------------------------------------------------

    \90\ Id. at ES-8.
    \91\ Id.
---------------------------------------------------------------------------

    Our previous rules included no protections for ephemeral streams. 
Consistent with the findings of the U.S. Environmental Protection 
Agency report and other studies, our proposed rule included some 
protections for ephemeral streams, tailored to their hydrologic and 
ecological functions. We also invited comment on whether we should 
extend equal protection to all streams, without regard to whether the 
stream is perennial, intermittent, or ephemeral. See 80 FR 44451 (Jul. 
27, 2015).
    We received numerous comments from environmental groups advocating 
that ephemeral streams be protected in the same manner as perennial and 
intermittent streams. One commenter stated: ``OSMRE's analysis should 
start from a presumptive rule of equal protection for all streams, and 
any assertion of countervailing business impacts should be considered 
only if it is backed by evidence included in the administrative 
record.'' Many environmental commenters asserted that a strong stream 
protection rule must include protection of ephemeral streams because 
they are an essential element of the hydrologic balance.
    In contrast, industry commenters opposed affording ephemeral 
streams the same protections as intermittent and perennial streams. 
This paragraph summarizes some of those arguments:
     The U.S. Army Corps of Engineers, an agency with 
considerable expertise on the subject of streams, rarely requires 
returning all ephemeral features to the postmining landscape.
     Some ephemeral streams are the result of anthropogenic 
activities and may be undesirable.
     Many ephemeral streams will find their own way back onto 
the landscape, depending on many factors including the final 
configuration of the reclamation. Restoring these lesser drainages is a 
waste of effort when nature will do it better.
     Disallowing the placement of sediment ponds in ephemeral 
drainages would result in logistically difficult or impossible 
situations or at least a greatly increased disturbance from additional 
ditching and a larger number of ponds.
     It makes no sense and is counterproductive to reconstruct 
erosional features when reclamation provides the opportunity to reshape 
the landscape to reduce erosion.
     Ephemeral streams have minimal if any biological 
components.
     In Wyoming's Powder River Basin, extending protection to 
ephemeral streams could result in 2,800 tons of coal per foot of 
channel being left unmined. This equates to 15 million tons of coal 
sterilized for every mile of channel that could not be mined. Surface 
coal mines in Wyoming can have upwards of 100 miles of ephemeral 
channels within the permit boundary. If all of the channels were to 
become unmineable, approximately 1.5 billion tons of coal for each mine 
would be sterilized.
     Typical mining techniques in the Powder River Basin 
utilize draglines and truck shovels. Efficient dragline operations 
require long linear pits. If ephemeral streams become unmineable, these 
types of operations will no longer be economic or efficient because of 
the number of ephemeral channels that bisect these pits.
     The Bureau of Land Management requires that a bonus bid be 
paid at the time a federal coal lease is awarded. To date, coal 
underlying ephemeral stream channels has been considered recoverable, 
which means that companies have paid bonus bids ranging from $0.85 to 
$1.35 per ton for coal underlying ephemeral streams in leases awarded 
during the past 5 years. If ephemeral channels are considered 
unmineable, this will create a significant economic hardship for the 
mining companies. Federal and state governments also will experience a 
loss of revenue.
    Many commenters thought that the term ``ephemeral stream'' included 
all conveyances that were not either perennial or intermittent streams. 
However, the definition of ``ephemeral stream'' that we are adopting in 
Sec.  701.5 as part of this final rule addresses this issue by 
providing that ephemeral streams include only those conveyances with 
channels that display both a bed-and-bank configuration and an ordinary 
high water mark.
    After evaluating the comments, reviewing the scientific literature, 
and weighing potential costs and benefits, we decided not to extend the 
same protections to ephemeral streams that we do to intermittent and 
perennial streams.
    However, as part of this final rule, we adopted most of the added 
protections for ephemeral streams that we included in our proposed 
rule. The final rule will protect the important role that ephemeral 
streams perform within watersheds including providing

[[Page 93087]]

protection and maintenance of downstream uses, ecological services, and 
the hydrologic balance of larger streams because of the impact 
ephemeral streams have on the form and function of downstream channels 
and aquatic life. Adopting these protections should ensure that 
ephemeral streams on reclaimed mine sites continue to provide the 
ecological services identified in the U.S. Environmental Protection 
Agency report while not unduly restricting mining through those 
streams. This approach is consistent with the purposes of SMCRA, as 
enumerated in section 102 of the Act.\92\ In particular, it will 
protect society and the environment from the adverse effects of surface 
coal mining operations, as provided in paragraph (a); assure that 
surface coal mining operations are conducted so as to protect the 
environment, as provided in paragraph (d); and strike a balance between 
environmental protection and the Nation's energy needs, as provided in 
paragraph (f). Although only certain requirements apply to ephemeral 
streams, as discussed in final rule Sec.  780.27, these requirements 
minimize impacts to ephemeral streams.
---------------------------------------------------------------------------

    \92\ 30 U.S.C.1202.
---------------------------------------------------------------------------

    Proposed Sec. Sec.  780.19(c)(6) and 784.19(c)(6) required that the 
permit applicant identify and map all ephemeral streams within the 
proposed permit and adjacent areas. Those proposed rules also required 
that the applicant describe the physical and hydrologic characteristics 
of those streams in detail, as well as any associated vegetation in the 
riparian zone if one exists. In addition, they required that the 
applicant assess the biological condition of a representative sample of 
those ephemeral streams. The final rule applies these proposed 
requirements only to ephemeral streams within the proposed permit area 
because those are the only ephemeral streams that the proposed 
operation would disturb and for which the operation would incur 
reclamation requirements. Requiring this information for ephemeral 
streams within the adjacent area would be costly and time-consuming and 
would not assist the regulatory authority in reviewing the permit 
application because no performance standards apply to ephemeral streams 
in the adjacent area. In addition, the final rule does not include the 
proposed requirement for baseline information on the biological 
condition of ephemeral streams because no scientifically defensible 
protocol currently exists for use in ephemeral streams for that 
purpose.
    Proposed Sec. Sec.  780.20, 780.21, 784.20, and 784.21 required 
that the determination of the probable hydrologic consequences of 
mining (PHC determination) and the cumulative hydrologic impact 
assessment (CHIA) include consideration of impacts on the biological 
condition of ephemeral streams. Those sections of the final rule do not 
include this proposed requirement because established and 
scientifically defensible protocols do not currently exist for use in 
determining the biological condition of ephemeral streams.
    Proposed Sec. Sec.  780.19(c)(3), 780.20(a)(5)(iv), 784.19(c)(3), 
and 784.20(a)(5)(iv) included peak flow baseline data collection and 
analysis requirements for ephemeral streams within the proposed permit 
and adjacent areas. The final rule does not include these requirements 
because this information is unnecessary for the analysis of the 
proposed operation's impacts on flooding that the PHC determination 
must contain. The baseline precipitation data required by final 
Sec. Sec.  780.19(c)(5) and 784.19(c)(5) in combination with the 
description of the general stream-channel configuration of ephemeral 
streams within the proposed permit area required by final Sec. Sec.  
780.19(c)(6) and 784.19(c)(6) will provide all necessary information 
needed for that analysis, given that ephemeral streams flow only in 
direct response to precipitation events.
    Proposed Sec. Sec.  780.12(d)(1) and 784.12(d)(1) required that the 
backfilling and grading plan in the reclamation plan include contour 
maps, cross-sections, or models that show in detail the anticipated 
final surface configuration, including drainage patterns, of the 
proposed permit area. The final rule adopts those provisions as 
proposed. Final Sec. Sec.  780.12(b)(3) and 784.12(b)(3) also provide 
that the reclamation timetable must include establishment of the 
surface drainage pattern and stream-channel configuration approved in 
the permit, including construction of appropriately-designed perennial, 
intermittent, and ephemeral stream channels to replace those removed by 
mining. Proposed Sec. Sec.  780.28(c)(1) and 784.28(c)(1) required that 
the postmining drainage pattern, including ephemeral streams, be 
similar to the premining drainage pattern, with limited exceptions. 
Sections 780.27(b) and 784.27(b) of the final rule adopt these 
provisions in revised form for ephemeral streams. They allow variances 
from the premining drainage pattern when the regulatory authority finds 
that a different pattern or configuration is necessary or appropriate 
to ensure stability; prevent or minimize downcutting or widening of 
reconstructed stream channels and control meander migration; promote 
enhancement of fish and wildlife habitat; accommodate any anticipated 
temporary or permanent increase in surface runoff as a result of mining 
and reclamation; accommodate the construction of excess spoil fills, 
coal mine waste refuse piles, or coal mine waste impounding structures; 
replace a stream that was channelized or otherwise severely altered 
prior to submittal of the permit application with a more natural, 
relatively stable, and ecologically sound drainage pattern or stream-
channel configuration; or reclaim a previously mined area.
    Proposed Sec. Sec.  780.28(b)(3) and 784.28(b)(3) provided that, 
after mining through an ephemeral stream, the permittee must plant 
native species within a 100-foot corridor on both sides of the 
reconstructed stream. Sections 780.27(c), 784.27(c), 816.57(d), and 
817.57(d) of the final rule adopt this requirement with some revisions. 
The streamside vegetative corridor must be consistent with natural 
vegetation patterns. The streamside vegetative corridor requirement 
would not apply to prime farmland or when establishment of a corridor 
comprised of native species would be incompatible with an approved 
postmining land use that is implemented before final bond release. 
Establishment of a streamside vegetative corridor is critical to 
ensuring restoration of the nutrient and organic matter transport 
functions of ephemeral streams.

P. The Rule Should Not Require the Use of Multimetric Bioassessment 
Protocols To Establish Baseline Ecological Stream Function and Stream 
Restoration Criteria

    Proposed Sec. Sec.  780.19(e)(2) and 784.19(e)(2) would have 
required the use of multimetric bioassessment protocols to assess the 
baseline ecological function of perennial, intermittent, and ephemeral 
streams and to establish stream restoration criteria (i.e., the point 
at which ecological function will be considered restored) for perennial 
and intermittent streams. Proposed Sec. Sec.  780.23(c) and 784.23(c) 
also would have required use of these protocols to monitor the 
biological condition of intermittent and perennial streams during 
mining and reclamation.
    We received comments both in support of and in opposition to the 
use of macroinvertebrate sampling and associated indexes for those 
purposes.

[[Page 93088]]

Some comments were general, while others singled out the use of an 
index of biological integrity (IBI) for baseline stream assessment and 
monitoring during mining and reclamation when discussing support or 
opposition to this requirement. The proposed rule required IBIs to 
include macroinvertebrate sampling. The IBIs would be used to develop a 
value that would provide an objective measure to describe various 
ecological characteristics found during the field surveys. This value 
would then be compared to an index that is established for designated 
uses under the Clean Water Act to assess the quality of the stream 
before, during, and after mining. This IBI system is a well-tested and 
robust tool to identify impacts on the health of perennial streams. 
IBIs and other scientifically defensible protocols are becoming more 
widely established for intermittent streams, but are not yet widely 
used across the nation. IBIs and other scientifically defensible 
protocols for assessing ephemeral streams have not been widely used to 
date, and when they have been, they have been most often used to 
characterize biological differences among ephemeral, intermittent, and 
perennial streams or biological changes with varying hydrological 
conditions. The proposed rule would have required the establishment of 
separate IBI protocols for all three types of streams: Perennial, 
intermittent, and ephemeral.
    As discussed in Part IV, section O of this preamble, several 
commenters criticized our proposal to treat ephemeral streams in the 
same manner as intermittent and perennial streams. These commenters 
strongly encouraged us to remove requirements to assess the baseline 
condition of ephemeral streams using bioassessment protocols that 
sample macroinvertebrate populations within ephemeral streams. They 
claimed it would yield no valid data for assessing the baseline 
condition of SMCRA-related activities and would be unduly costly. We 
agree. The final rule does not include assessment of biological 
condition requirements related to ephemeral streams.
    In addition, commenters suggested that there are other 
scientifically valid protocols that should be included as options for 
baseline stream assessment and monitoring. According to these 
commenters, these other protocols are also robust, scientifically 
defensible methods developed and applied by states, territories, and 
tribes. They include predictive and discriminant modeling approaches. 
We agree and have added these as acceptable methods in the final rule.
    In light of the comments received, we identified and analyzed other 
options that commenters suggested for assessing the baseline condition 
of and monitoring streams: The Rapid Bioassessment Protocol III 
(RBPIII), which is set out in the 1989 EPA Publication, ``Rapid 
Bioassessment Protocols for Use in Streams and Rivers;'' the Before-
After-Control-Impact design (BACI); and hydrogeomorphic sampling 
protocols. We also considered using IBIs that were designed for 
perennial streams to assess the baseline condition of and monitor 
intermittent and ephemeral streams (as is occasionally done by Clean 
Water Act authorities).
    Our analysis identified some positive attributes of the RBPIII 
protocol. It would provide a more thorough baseline assessment of the 
ecological function and biological condition of the premining site than 
some other methods. It would demonstrate with greater certainty whether 
or not the permittee had minimized the adverse effects of coal mining 
on upstream and downstream waters. It is based on sound scientific 
principles (quantitative or semi-quantitative designs that can be 
analyzed statistically). Finally the RBPIII is relatively easy to use 
and can be rapidly deployed. However, the RBPIII also has significant 
drawbacks. It would require the regulatory authority or the permittee 
to establish, assess, and monitor a set of reference streams on a 
permit-by-permit basis. This in turn would pose an issue of statistical 
validity: The variability between the relatively small number of 
reference streams and the streams potentially affected by the permitted 
operation could be great enough to mask significant impacts that mining 
might have on the affected streams. Differences in methodology (e.g., 
sample collection protocols, data analysis, etc.) mean that the RPBIII 
may not be comparable with the scientifically defensible protocols such 
as the IBI that we proposed to evaluate perennial streams. Using two 
different protocols, moreover, would significantly increase time and 
costs associated with assessing the baseline condition of and 
monitoring the effects of mining on streams. Finally, the RBPIII 
protocol is over 20 years old. This in and of itself is not a reason to 
eliminate this protocol; however, since its first publication, it has 
been updated twice to reflect a focus on national standardization, not 
to small-scale projects as originally designed and its suggested use by 
the commenters.
    Our analysis also showed positive and negative aspects to using the 
BACI protocols. On the positive side, BACI analysis would be specific 
to each permit area or even each particular stream and would allow the 
regulatory authority to tailor monitoring and baseline assessment to 
each permit. This could allow for variances from the kind of state or 
regional standard that an IBI or other larger-scale protocols might 
impose. BACI analysis could be less costly than some other approaches 
because the regulatory authority can perform one analysis that 
evaluates multiple streams, including every stream in the permit area. 
Under this kind of analysis one premining sampling event and additional 
postmining samplings would result in a statistically valid analysis. On 
the negative side, the BACI analysis requires use of control sites. 
This could create a number of problems in the context of SMCRA permits. 
First, if the control site is not selected correctly, it could result 
in a skewed analysis or a situation in which an analysis may not be 
possible after mining is complete. Second, under this kind of analysis, 
the control sites must remain in their original condition for the 
duration of the mining operation. This may not be practicable because 
those sites might be beyond the permittee's control. They also could be 
affected by activities other than mining, such as industrialization, 
logging, or urbanization within the watershed. Third, while the BACI 
protocol may be cheaper than some alternatives, permittees still would 
incur additional costs for sampling not only baseline and impacted 
streams but the control streams. Fourth, additional control streams 
might have to be incorporated into the permit area if enough suitable 
control streams are not present in the initially designed permit area. 
This could lead to additional costs and permitting delays. Fifth, 
control sites would have to be identified and monitored for each 
individual permit. This would increase costs and might lead to 
permitting delays. Finally, one of the greatest drawbacks of the BACI 
analysis is that, although it can assess large changes to biological 
condition and ecological function, it may miss smaller changes. Indeed, 
this kind of analysis might not be any more protective than the 
previous regulations.
    We found no benefit to using hydrogeomorphic protocols. Although 
they are easy to implement, they do not require macroinvertebrate 
sampling. In general, they provide no greater benefit than the types of 
analysis that have been used in connection with our previous 
regulations.
    Finally we determined that it is not currently appropriate to use 
protocols

[[Page 93089]]

developed for perennial streams to assess the baseline condition of and 
to monitor intermittent streams. As commenters pointed out, some Clean 
Water Act authorities, in the exercise of their professional judgment, 
have occasionally done this. We have concluded, however, that this 
approach has not been used enough to justify requiring it in our rule.
    In sum, after consideration of these other methods, as provided in 
final Sec. Sec.  780.19(c)(6)(vii) and 784.19(c)(6)(vii), we determined 
that the best technology currently available for baseline assessment 
and monitoring purposes for perennial streams is the use of IBIs or 
other equally scientifically defensible stream assessment protocols 
developed and applied by states, territories, and tribes. These other 
scientifically defensible stream assessment protocols would include 
predictive and discriminant modeling approaches, such as those in place 
in many western states. The final rule requires use of these methods 
and protocols for all perennial streams within and adjacent to the 
proposed permit area. Some states and regions have developed indices of 
biotic integrity or bioassessment protocols for intermittent streams. 
In those instances, final Sec. Sec.  780.28(g)(3)(iii) and 
780.19(c)(6)(vii) and their counterparts in Sec. Sec.  784.28 and 
784.19 require use of those protocols to assess the baseline condition 
of and to monitor intermittent streams. Requiring these types of 
baseline assessments and monitoring protocols instead of the RBPIII, 
BACI, hydrogeomorphic protocols, and instead of using perennial stream 
indices for intermittent and ephemeral streams will encourage the 
further development of scientifically defensible methods and protocols.
    We realize, however, that at present few scientifically defensible 
protocols have been established for bioassessments of intermittent 
streams. In the final rule, we do not require that SMCRA regulatory 
authorities develop new protocols for this purpose, but we do require 
them to reevaluate the best technology currently available for 
intermittent streams every 5 years and make any appropriate adjustments 
to account for new protocols that may have been developed. See Sec.  
780.28(g)(3)(iv)(B). Until scientifically defensible protocols are 
developed for intermittent streams, we are requiring baseline 
assessment and monitoring of these streams using a description of the 
water quality, water quantity, stream channel configuration, a 
quantitative assessment of the streamside vegetation, and an initial 
cataloging of the stream biota. For further detail, please see our 
discussions of Sec. Sec.  780.19, 780.27, 780.28, 816.56, and 816.57 in 
this preamble.

Q. Restoration of the Ecological Function of Perennial and Intermittent 
Streams Is Not Possible or Feasible

    Many commenters argued that there is no scientific support, in the 
form of published peer-reviewed studies, for the proposition that 
reconstructed streams can effectively replace streams that existed 
before mining, especially in regard to ecological function and 
premining biology. In a similar vein, some commenters urged us to 
prohibit mining activities within areas in which streams occur because 
stream restoration is unattainable. For example, one commenter stated: 
``[T]he unproven ability to fully restore the functions and uses of 
streams damaged by subsidence necessitates that the rule require 
avoidance of such damage as a primary consideration.'' According to 
commenters, we did not provide sufficient evidence that the ecological 
condition of streams could be restored with the available technology 
and science. They alleged that our rule created an impossible standard 
of reclamation, a standard that had not been demonstrated to be 
achievable by operators or enforceable by regulatory authorities.
    Some industry commenters agreed that full restoration of perennial 
and intermittent streams is not attainable. According to those 
commenters, we should not adopt a rule that establishes an unattainable 
standard.
    We agree that full restoration of the biology and ecological 
function of mined-through streams is not always possible and that 
restoration of those streams has often fallen short of goals. However, 
our experience indicates that restoration of impaired streams is 
possible after mining. Streams that were not attaining their designated 
aquatic life use have been shown to improve enough, through restoration 
techniques, to be removed from the section 303(d) \93\ list of impaired 
waters.\94\
---------------------------------------------------------------------------

    \93\ 33 U.S.C. 1313(d).
    \94\ See generally, U.S. Environmental Protection Agency. 
Nonpoint Source Success Stories, U.S. Environmental Protection 
Agency Web page found at https://www.epa.gov/polluted-runoff-nonpoint-source-pollution/nonpoint-source-success-stories. (last 
accessed October 5, 2016). U.S. Environmental Protection Agency. 
2011. Document #EPA841[hyphen]R[hyphen]11[hyphen]003. FY2010 
Assessment of Improving and Recovered Waters with Total Maximum 
Daily Loads (TMDLs). Office of Water, U.S. Environmental Protection 
Agency, Washington DC. Available online at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/results_index.cfm 4 pp.
---------------------------------------------------------------------------

    In addition, standards to assess and monitor ecological function 
are both established and currently in use to regulate activities within 
streams and reclamation projects across the United States. When 
consistent with SMCRA, we incorporated those standards into the final 
rule. In addition, we analyzed the shortcomings of past efforts to 
restore streams to determine how this rule could improve the results. 
Recent literature advocates a watershed approach to determining the 
restoration capacity of degraded, or potentially degraded, streams.\95\ 
This includes assessing the various resources that have been identified 
as determining success or failure of previous restoration projects. 
These include the condition of upstream habitats and water resources, 
the potential change in the quality and quantity of water present in 
the stream or the watershed, the amount and type of vegetation along 
the banks and buffer zones of streams, the reestablishment potential of 
appropriate stream channel habitat within the reconstructed stream to 
recolonize the stream via emigration, the potential for the adjacent 
streams and upstream habitats to serve as a source for emigration into 
the reconstructed stream (i.e., the species pool for successful 
recolonization), and the return of naturally occurring leaf litter and 
other organic matter to the area.
---------------------------------------------------------------------------

    \95\ Barbara Doll, et al., Identifying Watershed, Landscape, and 
Engineering Design Factors that Influence the Biotic Condition of 
Restored Streams. Water, 8(4), p.151 (2016).
    Derek B. Booth, et al., Integrating Limiting-Factors Analysis 
with Process-Based Restoration to Improve Recovery of Endangered 
Salmonids in the Pacific Northwest, USA. Water, 8(5), p.174 (2016).
    Eric R. Merriam & J. Todd Petty, Under siege: Isolated 
tributaries are threatened by regionally impaired metacommunities. 
560 Science of The Total Environment, 170-178 (2016).
    Moritz Leps et al., 2016. Time is no healer: Increasing 
restoration age does not lead to improved benthic invertebrate 
communities in restored river reaches. 557 Science of The Total 
Environment, 722-732 (2016).
    Jennifer J. Follstad Shah et al., 2007. River and riparian 
restoration in the Southwest: Results of the National River 
Restoration Science Synthesis Project. 15 (3) Restoration Ecology, 
550-562 (2007).
    S.W. Miller et al., 2010. Quantifying Macroinvertebrate 
Responses to In[hyphen]Stream Habitat Restoration: Applications of 
Meta[hyphen]Analysis to River Restoration. 18(1) Restoration 
Ecology, 8-19 (2010).
---------------------------------------------------------------------------

    This final rule improves our stream assessment and restoration 
requirements and analyzes these resources listed in the above 
paragraph, beginning at the application process. Upstream habitat and 
water quantity and quality will be assessed as part of the baseline 
data required in a permit application. Under the final rule, streambank 
and buffer zone vegetation will receive greater protection or 
restoration, including using native species (i.e., naturally occurring 
leaf litter and other organic matter). The implementation of the final

[[Page 93090]]

rule will also increase the amount of reforested habitat, which should 
improve watershed quality. Baseline data will contain information on 
streams potentially affected by the proposed operation, including 
bioassessments of perennial and some intermittent streams that 
regulatory authorities can use to determine the potential of these 
streams to provide biological emigrants (plants, animals, fungi, etc.) 
to reconstructed segments of connected streams. This is not to say that 
the reclamation of all streams is now possible or will now become a 
timely and precise exercise; careful consideration will need to be 
taken to understand the potential for restoration of each stream, and 
the economic and biological cost associated with these determinations.
    This final rule is intended to increase protection or restoration 
of perennial and intermittent streams and related environmental 
resources, as well as to ensure that permittees and regulatory 
authorities make use of advances in science and technology. The final 
rule provides that restoration of ecological function does not mean 
that the restored stream must precisely mirror the premining condition. 
For example, as section 780.28(g)(3)(ii)(A) of our final rule states, a 
demonstration of ecological function does not require that the 
reconstructed stream have precisely the same biological condition or 
biota as the stream segment did before mining. This is consistent with 
current, scientifically defensible bioassessment protocols used 
throughout a wide range of regulatory arenas, which allow for a natural 
range in variation of reference sites to which the assessments are 
compared.\96\ These bioassessment protocols use genus-level 
identification counts of macroinvertebrates to determine biological 
condition, where available, and to calculate values derived from 
measures such as species richness, composition, tolerance, feeding, and 
habitat measures that determine stream quality. Assessment of the 
biological condition of these streams is based on these values, not 
directly on the species that were first sampled. This change allows for 
some variation from the initial stream compared to the reconstructed 
stream as long as the reconstructed stream is within a suitable range 
according to the results of the bioassessment protocol used.
---------------------------------------------------------------------------

    \96\ For example: Michael T. Barbour et al. Rapid bioassessment 
protocols for use in wadeable streams and rivers. Periphyton, 
Benthic Macroinvertebrates, and Fish (2nd edn.). U.S. Environmental 
Protection Agency, Office of Water, Washington, DC EPA (1999).
---------------------------------------------------------------------------

    We recognize that stream restoration and creation is an emerging 
area of scientific study and that in some cases the reconstruction of 
functional stream channels on mined land can be difficult. It may be 
impossible in some cases to precisely mirror the ecological function 
that was there before mining. However, as we have just discussed, that 
is not what our rule requires. We also note, however, that one of the 
purposes of SMCRA is to ensure that ``surface mining operations are not 
conducted where reclamation as required by this Act is not feasible'' 
and that SMCRA therefore requires a permit applicant to demonstrate 
that ``reclamation as required [by SMCRA] and the State or Federal 
program can be accomplished under the reclamation plan contained in the 
permit application[.]'' If analysis of the baseline data and other 
information in the application indicates restoration of a stream cannot 
be accomplished through use of conventional mining and reclamation 
technology, the applicant will need to adjust the proposed operation 
and reclamation plan to either avoid that stream or take other measures 
(e.g., the construction of aquitards in the backfill) to ensure 
restoration of a stream's water quality and quantity and aquatic life 
after the completion of mining.

R. We Should Apply the 1983 Stream Buffer Zone Rule To Effectively 
Prohibit Mining Activities Within 100 Feet of Streams

    Numerous commenters urged us to promulgate a rule consistent with 
their interpretation of the 1983 stream buffer zone rule as prohibiting 
all mining activities in or within 100 feet of a perennial or 
intermittent stream. They argued that the proposed rule weakens this 
interpretation of the 1983 rule by ``placing more emphases on 
mitigation of impacts on streams than on protection and prevention.'' 
They claim that the lack of science on successful restoration of stream 
form and function renders the proposed rule less protective than their 
interpretation of the 1983 rule and allows for the continued 
destruction of streams. Other commenters maintain that the proposed 
rule is inconsistent with section 515(b)(24) of SMCRA,\97\ which 
requires, in relevant part, that, to the extent possible, surface coal 
mining and reclamation operations use the best technology currently 
available to minimize disturbances and adverse impacts of the operation 
on fish, wildlife, and related environmental values. According to the 
commenters, the best technology currently available to protect fish, 
wildlife, and related environmental values from the adverse impacts of 
coal mining is a prohibition on mining in or within 100 feet of a 
perennial or intermittent stream. The commenters recognize that such a 
prohibition would reduce minable acres, but they contend it is 
reasonable and practicable, given the decline in the demand for coal 
resources.
---------------------------------------------------------------------------

    \97\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    The preamble to our proposed rule discusses the history of the 1983 
stream buffer zone rule in significant detail (see 80 FR 44447-44451, 
Jul. 27, 2015). It includes the following statement: ``Historically, we 
and some state regulatory authorities applied the 1983 stream buffer 
zone rule in a manner that allowed the placement of excess spoil fills, 
refuse piles, slurry impoundments, and sedimentation ponds in 
intermittent and perennial streams within the permit area.'' The 
specific language of the 1983 rule allowed the regulatory authority to 
authorize mining activities within the stream buffer zone upon finding 
that ``[s]urface mining activities will not cause or contribute to the 
violation of applicable State or Federal water quality standards, and 
will not adversely affect the water quantity and quality or other 
environmental resources of the stream.'' As discussed in the preamble, 
that provision has been subject to numerous court challenges and was 
substantially revised by the now-vacated 2008 stream buffer zone rule. 
The 1983 rule will remain the standard applied by state regulatory 
authorities until the provisions of our final rule have been adopted by 
those individual regulatory programs.
    While we have not adopted a strict prohibition standard for mining 
activities within the stream buffer zone, we have in our final rule 
required that certain conditions be met in order for the regulatory 
authority to authorize such activities. The final rule allows mining 
activities in or within 100 feet of an intermittent or perennial stream 
only if the permit applicant makes certain demonstrations and the 
regulatory authority makes certain findings. When the applicant 
proposes to mine through a perennial or an intermittent stream, these 
required findings include the ability of the permittee to actually 
restore the form, hydrologic function, and ecological function of the 
stream as part of the reclamation process. We intend these requirements 
to ensure that the reconstructed stream will actually have sufficient 
base flow, water quality, and an aquatic community similar to that 
which existed prior to mining. As discussed more comprehensively in

[[Page 93091]]

final rule Sec.   780.28, in general, mining activities in, through, or 
adjacent to perennial or intermittent streams must not: cause or 
contribute to a violation of water quality standards; cause material 
damage to the hydrologic balance outside the permit area; result in 
conversion of a stream segment from perennial to intermittent, 
perennial to ephemeral, or intermittent to ephemeral; and must be 
designed to minimize adverse impacts on fish, wildlife and related 
environmental values to the extent possible using the best technology 
currently available.
    The final rule allows burial of intermittent or perennial streams 
with excess spoil or coal mine waste only if the permit applicant 
demonstrates and the regulatory authority finds that the loss of 
resources associated with the burial of a stream will be offset through 
fish and wildlife enhancement measures commensurate with the magnitude 
of the adverse impacts from burial of the stream. In addition, the area 
where proposed enhancement activities are to occur must be incorporated 
into the permit and bonded for reclamation. In approving a plan that 
provides for the appropriate level of enhancement, the regulatory 
authority also must establish standards for determining when 
reclamation bonds can be released for such areas. This regulatory 
approach ensures that the desired results are actually achieved, and, 
if they are not, the regulatory authority will be in a position to use 
the proceeds from forfeiture of the reclamation bonds to accomplish the 
desired objective of the approved reclamation plan.

V. Explanation of Organizational Changes and Plain Language Principles

    The final rule includes organizational changes for clarity. Those 
changes serve several purposes, including--
     Breaking up overly long sections and paragraphs into 
multiple shorter sections and paragraphs for ease of reference and 
improved comprehension.
     Renumbering sections in the underground mining rules to 
align their numbering with the corresponding sections in the surface 
mining rules. This change improves ease of reference and the user-
friendliness of our rules.
     Moving permitting requirements from subchapter K 
(performance standards) to subchapter G to consolidate permitting 
requirements in subchapter G.
     Restructuring subchapter G to better distinguish between 
baseline information requirements and reclamation plan requirements.
     Removing redundant, suspended, and obsolete provisions.
    In general, we drafted the final rule using plain language 
principles, consistent with section 501(b) of SMCRA, 30 U.S.C. 1251(a), 
which provides that regulations must be ``concise and written in plain, 
understandable language,'' and Executive Order 13563, which provides 
that our regulatory system ``must ensure that regulations are 
accessible, consistent, written in plain language, and easy to 
understand.'' \98\ In addition, a June 1, 1998, Executive Memorandum on 
Plain Language in Government Writing \99\ requires the use of plain 
language in all proposed and final rulemaking documents published after 
January 1, 1999. The Office of the Federal Register also encourages the 
use of plain language in writing regulations, as set forth in detail at 
www.plainlanguage.gov and associated links.
---------------------------------------------------------------------------

    \98\ 76 FR 3821 (Jan. 21, 2011).
    \99\ 63 FR 31883-31886 (Jun. 10, 1998).
---------------------------------------------------------------------------

    Plain language requirements vary from one document to another, 
depending on the intended audience. Plain language documents have 
logical organization and easy-to-read design features like short 
sections, short sentences, tables, and lots of white space. They use 
common everyday words (except for necessary technical terms), pronouns, 
the active voice, and a question-and-answer format when feasible.
    The final rule text and preamble use the pronouns ``we,'' ``us,'' 
and ``our'' to refer to OSMRE, and the pronouns ``I,'' ``you,'' and 
``your'' to refer to a permit applicant or permittee. We avoid use of 
the word ``shall'' in the rule text and preamble, except in quoted 
material. Instead, we use ``must'' to indicate an obligation, ``will'' 
to identify a future event, and ``may not'' to convey a prohibition.

VI. How do our final regulations differ from our proposed regulations?

    Except as otherwise discussed in the preamble to this final rule, 
we are adopting the regulations as proposed on July 27, 2015, for the 
reasons set forth in the preamble to the proposed rule. In this portion 
of the preamble to the final rule, we explain our responses to the 
comments that we received on the text of the proposed regulations. We 
also discuss how we revised the proposed regulations in response to 
those comments and other considerations. However, in general, we do not 
discuss syntax improvements, plain language changes, and other 
revisions of a minor nature.
    This discussion refers to previous, existing, proposed, and final 
rules and regulations. In general, we use ``previous'' when we refer to 
regulations that will no longer exist once this final rule is 
effective. We use ``existing'' to describe regulations that are 
unaffected by this rulemaking. ``Proposed'' regulations are the 
regulations set forth in our July 27, 2015, proposed rule. The term 
``final'' refers to the regulations that we are adopting today, 
including existing regulations that are redesignated in this 
rulemaking.

A. Part 700--General

Section 700.11: What coal exploration and coal mining operations are 
subject to our rules?
Final Paragraph (d): Termination and Reassertion of Jurisdiction
    We proposed to revise Sec.  700.11(d) to add clarity to the 
regulations, to conform them with proposed revisions to 30 CFR part 800 
concerning financial assurances for treatment of long-term discharges, 
and to add provisions consistent with a court decision that resulted 
from a previous rulemaking. The rationale for the proposed revisions is 
set forth at 80 FR 44436, 44466-44467 (Jul. 27, 2015). We received no 
comments specific to proposed paragraphs (d)(1) and (4), so they are 
not discussed below.
Final Paragraph (d)(2): Termination of Jurisdiction for Permanent 
Regulatory Program Sites
    One commenter expressed concern that replacement of the term 
``increment'' with ``portion'' in the introductory language of 
paragraph (d)(2) implies that a permittee may apply for bond release on 
a portion of a permit that has not been separately bonded as an 
increment. According to the commenter, bonds and jurisdiction apply to 
the entire permit or to the permit increment for which bond is posted. 
The commenter stated that our permitting, bonding, and termination of 
jurisdiction regulations need to use the same terminology so that 
regulators and the public can easily discern which sections of a mine 
are active or in reclamation and which sections are eligible for 
release and eventual termination of jurisdiction.
    Our regulations restrict termination of jurisdiction to those areas 
for which bond has been fully released, but otherwise, we do not agree 
that our permitting, bonding, and termination of jurisdiction 
regulations must use the same terminology or that the boundaries of 
each original permit increment must remain inviolate. Under Sec.  
800.13(b),

[[Page 93092]]

with the approval of the regulatory authority, we have always allowed 
clearly defined portions of the permit area requiring extended 
liability to be separated from the original area and bonded separately. 
The change in terminology from ``increment'' to ``portion'' in our 
termination of jurisdiction regulations as part of this final rule is 
consistent with both the language and approach outlined in Sec.  
800.13(b). The public should have no difficulty identifying the 
portions of the permit area for which bond has been released and 
jurisdiction has been terminated because Sec.  800.13(b) requires that 
the boundaries of each portion be clearly defined.
    One commenter opposed the proposed revisions to this paragraph 
because, in the commenter's opinion, they would require that, even in 
primacy states, bond release and termination of jurisdiction be based 
upon 30 CFR part 800 rather than the provisions of the applicable 
regulatory program. That was not the intent of our proposed revisions. 
To avoid this misinterpretation, final paragraph (d)(2)(ii) provides 
for termination of jurisdiction whenever the regulatory authority has 
made a final decision to fully release the performance bond or 
financial assurance in accordance with the applicable regulatory 
program. The revised language is similar to the language of paragraph 
(d)(2)(i) in this respect.
    The commenter also alleged that proposed paragraph (d)(2)(ii)(B), 
which concerns sites with postmining discharges requiring long-term 
treatment, provided confirmation that we intend to retain jurisdiction 
in perpetuity. That was not the intent of the proposed provision, but 
we understand how it could be misinterpreted. We have determined that 
proposed paragraph (d)(2)(ii)(B) is unnecessary because it essentially 
duplicates Sec.  800.18(i) and because proposed paragraph (d)(2)(ii)(A) 
refers to financial assurances as well as performance bonds. Therefore, 
we are not adopting proposed paragraph (d)(2)(ii)(B). Final paragraph 
(d)(2)(ii) includes only proposed paragraph (d)(2)(ii)(A) and is 
renumbered to accommodate the removal of proposed paragraph 
(d)(2)(ii)(A).
Final Paragraph (d)(3): Reassertion of Jurisdiction
    Several commenters opposed this paragraph as unreasonable. Others 
alleged that it was illegal because it would apply retroactively. 
Others alleged that it would be inconsistent with SMCRA because it 
would result in the permittee having an eternal possibility of 
reassertion of jurisdiction. Several commenters asserted that SMCRA 
provides no authority for the assertion of jurisdiction over mining 
operations that have obtained bond release.
    These comments reflect a perspective on the principle of 
reassertion of jurisdiction under SMCRA, which is now a matter of 
settled law. In 1991, the U.S. Court of Appeals for the District of 
Columbia Circuit upheld the 1988 termination of jurisdiction rules at 
30 CFR 700.11(d), which include a similar provision requiring 
reassertion of jurisdiction under specified circumstances. See Nat'l 
Wildlife Fed'n v Lujan, 950 F.2d 765, 770 (D.C. Cir. 1991). 
Specifically, with respect to the reassertion of jurisdiction under 
SMCRA, the court held that:

    The question is whether the effect of the regulation comports 
with the statutory scheme. We believe that it does in light of the 
language of the regulation and the interpretation provided in both 
the preamble and the Secretary's brief here.
    The preamble adopts an objective standard, stating that 
jurisdiction must be re-asserted whenever ``any reasonable person 
could determine'' that fraud, collusion or misrepresentation had 
occurred. [53 FR 44359] (1988). The Secretary's brief not only 
adopts this standard but also clarifies its scope:

It is important to note in this connection that the filing of an 
application for bond release is in itself a representation that the 
operator has satisfied his reclamation obligations since an operator 
is not entitled to release from the bond unless he has met those 
obligations. . . . If an operator applies for release but has not 
fulfilled his obligations, he is guilty of misrepresentation by the 
very fact of making an application.

    Brief for the Secretary at 27 n.11. This is a reasonable way of 
implementing the Act's condition ``[t]hat no bond shall be fully 
released until all reclamation requirements of this chapter are 
fully met.'' 30 U.S.C.[] 1269(c)(3). The condition implies that 
after reclamation requirements are met, the bond may be ``fully 
released.'' Id. When it turns out that the operator had in fact not 
fulfilled its reclamation obligations at the time of release, the 
Secretary's interpretation of ``misrepresentation'' ensures that 
jurisdiction ``shall'' be reasserted. 30 [CFR] 700.11(d)(2).\100\
---------------------------------------------------------------------------

    \100\ Nat'l Wildlife Fed'n v. Lujan, 950 F.2d 765, 770 (D.C. 
Cir. 1991).

---------------------------------------------------------------------------
Therefore, we made no changes in response to these comments.

    However, final paragraph (d)(3) differs somewhat from the proposed 
rule in that we added paragraphs (d)(3)(i) and (ii) and placed most of 
proposed paragraph (d)(3) in paragraph (d)(3)(iii). Under the final 
rule, reassertion of jurisdiction is required only if all three factual 
situations identified in paragraphs (d)(3)(i) through (iii) exist. 
Paragraph (d)(3)(i) specifies that the conditions that develop after 
termination of jurisdiction must constitute a violation of the 
reclamation requirements of the applicable regulatory program. 
Paragraph (d)(3)(ii) specifies that the conditions that develop after 
termination of jurisdiction must be the result of surface coal mining 
operations for which jurisdiction was terminated. The addition of 
paragraphs (d)(3)(i) and (ii) is consistent with the preamble to the 
1988 rules, which provides that ``it would not be appropriate for the 
regulatory authority to reassert jurisdiction under the approved 
program'' if ``the problem was not caused by the permittee's violation 
of the regulatory program.'' \101\
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    \101\ 53 FR 44356, 44359 (Nov. 2, 1988).
---------------------------------------------------------------------------

    Several commenters asserted that paragraph (d)(3) would require 
reassertion of jurisdiction on sites where third-party disturbances 
created the conditions resulting in the need for reassertion of 
jurisdiction. The rule does not require reassertion of jurisdiction 
when the impact is a result of a third-party disturbance. Instead, the 
rule applies only to impacts resulting from the mining operation. We 
have added language at paragraph (d)(3)(ii) that clarifies this point.
    One commenter opposed the rule because it provides no discretion to 
the regulatory authority in deciding whether to reassert jurisdiction 
and does not provide an endpoint for reassertion of jurisdiction. The 
final rule that we are adopting today, like the proposed rule and the 
1988 rule, does not provide discretion to the regulatory authority or 
an endpoint (equivalent to a statute of limitations) because neither is 
appropriate if bond release and termination of jurisdiction were based 
upon fraud, collusion, or misrepresentation of a material fact.
    One commenter alleged that adding ``intentional or unintentional'' 
as an adjective modifying ``material misrepresentation of a material 
fact'' would increase long-term liability and result in additional 
litigation by nongovernmental organizations, as would the provision 
requiring reassertion of jurisdiction for postmining discharges 
requiring treatment. Neither of the added provisions represents a 
substantive change in policy or regulation. Therefore, we find no basis 
for the commenter's allegation. Another commenter opposed adding 
``intentional or unintentional'' as a modifier for

[[Page 93093]]

``misrepresentation of a material fact,'' alleging that it was 
unnecessary. This phrase is helpful to clarify circumstances to which 
it can be applied and better informs the reader of how the rule is to 
be interpreted and applied. No changes have been made as in response to 
these comments.
    Several commenters alleged that adoption of the provisions 
discussed in the preceding paragraph would mean that a permittee would 
never have the certainty that it has fulfilled all obligations for a 
permitted site. According to the commenters, this result would infringe 
upon the permittee's ability to conduct business and could adversely 
impact the availability of surety bonds. As discussed in the preceding 
paragraph, neither of the added provisions represents a substantive 
change in policy or regulation. Therefore, we have no reason to 
anticipate that the outcome feared by the commenter will develop. Even 
if it did, that outcome would not justify allowing a termination of 
jurisdiction based on fraud, collusion, or misrepresentation of a 
material fact to stand if the mining operation has resulted in a 
situation that constitutes a violation of SMCRA or the applicable 
regulatory program.
    One commenter opined that the rule would penalize successful 
operators because operators exiting the coal business would not be 
subject to this rule. Both the 1988 rule and this final rule apply to 
the permittee in existence at the time of termination of jurisdiction. 
If reassertion of jurisdiction is necessary, the regulatory authority 
must require that the permittee implement corrective measures 
regardless of whether the permittee has exited the coal business.
    Similarly, another commenter expressed concern that the regulatory 
authority might be held responsible if the permittee could not be 
located or was no longer a viable business entity. Nothing in the 
proposed or final rules would support this outcome.
    One commenter asserted that the proposed rule is unworkable because 
it is not clear how it will be enforced. The final rule will be 
implemented in the same manner as the 1988 rules. The preamble to the 
1988 rules provides the following explanation of how the regulatory 
authority may become aware of a situation involving fraud, collusion, 
or the intentional or unintentional misrepresentation of a material 
fact:

    Liability under the approved program for a failure of 
reclamation, however, may be the subject of a Secretarial or 
regulatory authority inquiry or a civil suit in the courts pursuant 
to section 520 of the Act. Such liability would depend upon whether 
the reclamation failure was caused by a violation by the operator of 
the regulatory program.\102\
---------------------------------------------------------------------------

    \102\ 53 FR 44356, 44358 (Nov. 2, 1988).

The regulatory authority inquiry to which this paragraph refers may be 
the result of information supplied by the public, information gleaned 
from the news media, or observations by regulatory authority personnel 
in the course of inspecting nearby mine sites.
    One commenter asked whether the permittee or the regulatory 
authority would be required to conduct water sampling on sites for 
which bond has been fully released. The answer is no. There is no 
authority under SMCRA to impose such a requirement. In addition, it 
would defeat one of the purposes of termination of jurisdiction; i.e., 
to determine when monitoring and inspection under SMCRA are no longer 
necessary.
    One commenter implied that the rule should specify that the need 
for reassertion of jurisdiction will be determined using only the bond 
release standards in effect at the time of termination of jurisdiction. 
We find that no such provision is necessary because the rule already 
provides that reassertion of jurisdiction is required only if the 
regulatory authority becomes aware that the bond release was based upon 
fraud, collusion, or the intentional or unintentional misrepresentation 
of a material fact. This sentence refers to decisions in which the 
regulatory authority released bond fully but would not have done so if 
the information provided by the permittee had not been tainted by the 
fraud, collusion, or misrepresentation of a material fact at that time. 
Paragraph (d)(3) neither mentions nor provides a basis for reasserting 
jurisdiction whenever the regulatory authority adopts revised bond 
release criteria. Unless otherwise specified in the rulemaking adopting 
those criteria, the revised criteria would apply only prospectively. In 
any event, they could not be used to reassert jurisdiction over permits 
with bond released before the effective date of the revised criteria 
because the adoption of revised bond release criteria would not be 
considered fraud, collusion, or misrepresentation of a material fact.
    Several commenters opposed paragraph (d)(3) because, in their view, 
it would require reassertion of jurisdiction for any error or mistake 
in a document submitted as part of the bond release process, no matter 
how minor the error or mistake. We disagree. Both the 1988 rule and 
final paragraph (d)(3) require reassertion of jurisdiction only for 
fraud, collusion, or misrepresentation of a material fact. Clerical 
errors and other minor mistakes would not meet this threshold because 
they would not be considered misrepresentation of a material fact. The 
adjective ``material'' means the fact must be critical to the decision 
to release bond. In other words, misrepresentation of a material fact 
refers to a situation in which, in the absence of the 
misrepresentation, the regulatory authority would not have released the 
bond. However, in response to these and other comments, we have added 
paragraphs (d)(3)(i) and (ii) to specify that reassertion of 
jurisdiction is required only when conditions exist that would 
constitute a violation of the reclamation requirements of the 
applicable regulatory program and those conditions are the result of 
surface coal mining operations for which jurisdiction was terminated. 
This limitation is consistent with the preamble to the 1988 rules, 
which provides that ``it would not be appropriate for the regulatory 
authority to reassert jurisdiction under the approved program'' if 
``the problem was not caused by the permittee's violation of the 
regulatory program.'' \103\
---------------------------------------------------------------------------

    \103\ Id. at 44359.
---------------------------------------------------------------------------

    Two commenters asserted that the rule is unnecessary because some 
states have a fund to address post-bond release problems. We find that 
this comment is not germane because, in 1988, we determined that there 
was a need for a rule providing for both termination of jurisdiction 
and reassertion of jurisdiction. The proposed rule did not propose to 
alter that determination nor did we request comment on that 
possibility.
    One commenter suggested that, in lieu of adopting this rule, we 
establish a fund similar to the Abandoned Mine Reclamation Fund that 
would cover problems that arise after termination of jurisdiction. We 
have no authority to establish such a fund or assess the fees that 
would be required to operate it.
    One commenter took issue with the statement in the preamble to the 
proposed rule at 80 FR 44436, 44467 that the intentional or 
unintentional misrepresentation of a material fact includes the 
``subsequent discovery of a discharge requiring treatment.'' The 
commenter noted that this language differs slightly from the proposed 
text of the regulation, which did not use the term ``subsequent''. 
According to the commenter, reassertion of jurisdiction for a discharge 
that was undiscoverable at the time of the application for bond release 
would be inconsistent with

[[Page 93094]]

language and reasoning in NWF v. Lujan.
    We do not agree. Nothing in the court decision says that the 
discharge must be discoverable at the time of bond release to be 
considered a misrepresentation of a material fact. Instead, the court 
decision focuses on section 519(c)(3) of SMCRA,\104\ which, in relevant 
part, provides that ``no bond shall be fully released until all 
reclamation requirements of the Act are fully met.'' We anticipate that 
there would be very few cases in which a discharge was not discoverable 
at the time of bond release. However, should an unanticipated mining-
related discharge requiring treatment develop after bond release, the 
final rule would require reassertion of jurisdiction because the 
conditions resulting in formation of the discharge were present at the 
time of bond release. Therefore, development of a discharge requiring 
treatment after bond release means that the permittee's certification 
that all reclamation requirements were met ultimately proved to be a 
misrepresentation of a material fact.
---------------------------------------------------------------------------

    \104\ 30 U.S.C. 1269(c)(3).
---------------------------------------------------------------------------

    One commenter opposed our proposed addition of the sentence 
establishing discovery of a discharge requiring treatment of parameters 
of concern after termination of jurisdiction as a misrepresentation of 
material fact. According to the commenter, addition of this sentence 
would be inconsistent with the preamble to the 1988 rule, which states 
that the discovery of an acid seep subsequent to bond release would not 
automatically require reassertion of jurisdiction:

    [T]he occurrence of an acid seep subsequent to bond release does 
not, by itself, establish the cause of the seep, whether reclamation 
had been completed, whether intervening events occurred, or the 
circumstances surrounding bond release.\105\
---------------------------------------------------------------------------

    \105\ 53 FR 44356, 44361 (Nov. 2, 1988).

    There is a distinct difference between the situation described in 
the 1988 preamble and the sentence that we proposed to add to our rules 
and that we are adopting in revised form as part of this final rule. 
The sentence in our proposed and final rules applies to a discharge for 
which a treatment need has already been established, while the seep 
cited in the 1988 preamble is a newly discovered seep for which there 
has been no determination whether the seep is a discharge that will 
require treatment or whether it is the result of the surface coal 
mining operations for which jurisdiction was terminated. As noted in 
the preamble, these factual questions need to be answered before a 
determination can be made on reassertion of jurisdiction. Although not 
expressly stated in the preamble, we would anticipate that reassertion 
of jurisdiction would be required under the 1988 rule if the questions 
are answered in the affirmative. Therefore, we find no inconsistency 
between the 1988 preamble and our final rule. For added clarity, as 
discussed below, we have revised the pertinent sentence in the proposed 
rule by adding a proviso that reassertion of jurisdiction is required 
only if the conditions creating the need for treatment of the discharge 
are the result of the mining operation.
    In final paragraph (d)(3)(iii), we removed the phrase ``if it is 
demonstrated that'' found in (d)(3) in the proposed rule. The language 
in the proposed rule is somewhat confusing because it did not address 
what a demonstration must include or who must make the demonstration. 
The preamble to the proposed rule describes proposed paragraph (d)(3) 
as meaning that ``the regulatory authority must reassert jurisdiction 
if the termination was based upon fraud, collusion, or 
misrepresentation of a material fact.'' \106\ The language of the final 
paragraph (d)(3)(iii) more effectively conveys this meaning. In 
addition, it is consistent with the preamble to the 1988 rule, which 
states that the regulatory authority would have to reassert 
jurisdiction ``[i]f following final bond release, any reasonable person 
could determine that the bond release was based upon fraud, collusion, 
or a misrepresentation of a material fact at the time of release. . . 
.'' \107\
---------------------------------------------------------------------------

    \106\ 80 FR 44436, 44467 (Jul. 27, 2015).
    \107\ 53 FR 44356, 44359 (Nov. 2, 1988).
---------------------------------------------------------------------------

    In paragraph (d)(3)(iii), we also revised the language in proposed 
paragraph (d)(3) pertaining to the discovery of discharges requiring 
treatment by deleting the reference to mining-related parameters of 
concern and by adding a proviso that the conditions creating the need 
for treatment must be the result of the mining operation. The revised 
language focuses simply on whether the discharge requires treatment and 
whether the need for treatment is a result of the mining operation. 
There is no need for use of the new term ``parameters of concern'' in 
this context.
Coal Exploration
    We received a few comments in response to our statement in the 
preamble to the proposed rule that we intended to correct an oversight 
in the 1988 final rule text by applying the termination of jurisdiction 
provisions to coal exploration and surface coal mining and reclamation 
operations, not just surface coal mining and reclamation operations. 
The comments that we did receive generally opposed this extension. One 
commenter alleged that including coal exploration in the termination of 
jurisdiction rules would impose an undue burden on operators and 
regulatory authorities and would discourage future exploration. Another 
commenter noted that SMCRA provides only minimal requirements for coal 
exploration and that it neither mandates inspections nor notification 
of citizens or opportunity for citizens to comment upon or appeal 
critical regulatory decisions on coal exploration. According to the 
commenter, the issue of when SMCRA jurisdiction terminates in the 
context of coal exploration rarely arises. The commenter suggested that 
it might be appropriate to leave this issue to the discretion of 
individual regulatory programs.
    After evaluating the comments, we have decided not to proceed with 
our proposal to revise Sec.  700.11(d) to apply to coal exploration. 
Our regulations at Part 772 do not require a permit or regulatory 
authority approval for coal exploration unless the exploration involves 
the removal of more than 250 tons of coal or will take place on lands 
designated as unsuitable for surface coal mining operations. Therefore, 
there are no permit boundaries or defined endpoints. In the absence of 
a permit, there is no bond, so bond release cannot be used as a 
determinant for termination of jurisdiction. As one commenter 
suggested, we will rely upon the discretion of each regulatory 
authority to determine when termination of jurisdiction is appropriate 
for coal exploration.

B. Part 701--Permanent Regulatory Program

Section 701.5: Definitions
Acid Drainage or Acid Mine Drainage
    A commenter asserted that normal rainfall can have a pH of less 
than 6.0 as a result of the presence of carbon dioxide in the 
atmosphere. In addition, the commenter claimed that, historically, some 
of the lowest pH in rainfall occurs over the Appalachian Region, where, 
in 2012, pH reported in proximity to the intersection of West Virginia, 
Pennsylvania, and Ohio, was approximately 4.5 based on National Trends 
Network trend maps between 1986 and 2012. The commenter also opined 
that assigning a pH level of less than 6.0 was arbitrary and could 
result in a situation where acid rainfall in some regions could cause 
an operator to be in violation of the rule. We reject the

[[Page 93095]]

commenter's arguments for a number of reasons. First, we did not 
arbitrarily select the pH value used in our definition of acid drainage 
or acid mine drainage, and it is not a new specification in this rule. 
The definition for acid drainage was codified in our regulation in 
March, 1979. In the preamble to that regulation, we explained that we 
selected a pH of less than 6.0 for the definition because the U.S. 
Environmental Protection Agency set that level as the minimum for its 
effluent limitations and because pH values outside the range of 6.0-8.5 
in natural waters are indicative of stress.\108\ Second, our definition 
contains another condition that must be met before we consider water 
draining from a mining area with a pH of less than 6.0 to be acid 
drainage or acid mine drainage: total acidity must exceed total 
alkalinity. Sometimes a stream under natural conditions can have pH 
values of less than 6.0, but its acidity will not exceed its 
alkalinity. In addition, an applicant reports baseline data, including 
pH level, for both groundwater and surface water as part of the permit 
application required by final rule Sec.  780.19. This baseline data 
provides site specific information to the regulatory authority so that 
rainfall impacts or other existing conditions affecting the pH of water 
at the site are known prior to mining. Thus, we decline to make changes 
to the definition based on this comment and are adopting the proposed 
rule definition without modification.
---------------------------------------------------------------------------

    \108\ 44 FR 14919 (Mar 13, 1979).
---------------------------------------------------------------------------

Adjacent Area
    As discussed in the preamble to the proposed rule, we proposed to 
modify our existing definition of ``adjacent area''.\109\ See 80 FR 
44467-44468 (Jul. 27, 2015). After evaluating the comments we received, 
we are adopting the definition as proposed, with exceptions.
---------------------------------------------------------------------------

    \109\ 80 FR 44436, 44467-44468 (Jul. 27, 2015).
---------------------------------------------------------------------------

    First, we proposed to revise the basic definition of ``adjacent 
area'' to encompass the area outside the proposed or actual permit area 
when there is a reasonable ``possibility'' of adverse impacts from 
surface coal mining operations or underground mining activities, as 
determined by the regulatory authority. This portion of the proposed 
definition was substantively identical to the existing definition 
except that the existing definition included only the area in which 
impacts are reasonably ``probable'' rather than the area in which 
impacts are reasonably possible. Several commenters objected to the 
proposed change as overly expansive. After evaluating those comments, 
we have decided not to make the proposed change. We agree that 
collection of baseline data from the area in which impacts are 
reasonably probable will provide sufficient basis for evaluation of the 
permit application and design of the proposed operation. Similarly, we 
agree with the commenters that limiting monitoring outside the permit 
area to the area in which impacts are reasonably probable will provide 
sufficient data to detect and evaluate the impacts of mining and 
reclamation in a timely manner. Expanding baseline data collection and 
monitoring to areas in which impacts are reasonably possible, but not 
reasonably probable, would increase cost with little benefit.
    As we explained in the preamble to the proposed rule, the 
definition of ``adjacent area'' depends on the nature of the resource 
and the context in which the regulations use the term.\110\ In response 
to a comment from another federal agency, we modified final paragraph 
(1) to clarify that, in the context of the Endangered Species Act, 
``adjacent area'' includes areas outside of the proposed or actual 
permit area where surface coal mining operations or underground mining 
activities may affect a species listed or proposed for listing as 
endangered or threatened, or having designated or proposed critical 
habitat under the Endangered Species Act. This modification, found at 
final rule paragraph (1)(ii), is to ensure protection is extended to 
proposed or listed species under the Endangered Species Act, as well as 
proposed or designated critical habitats listed under the Endangered 
Species Act that may be impacted by the proposed mining activity. Any 
impact to a proposed or listed species or proposed or designated 
critical habitat, whether adverse or beneficial, should be included 
within the definition of adjacent area.
---------------------------------------------------------------------------

    \110\ 80 FR 44436, 44467 (Jul. 27, 2015).
---------------------------------------------------------------------------

    We have also made a change to paragraph (b) of the proposed 
definition of ``adjacent area,'' now final paragraph (2). This 
paragraph clarifies the previous definition by specifying that the 
adjacent area includes the area of probable impacts from underground 
workings. We proposed to revise the definition to state that the 
adjacent area includes the area overlying the underground workings plus 
the area encompassed by a reasonable angle of draw from the perimeter 
of the underground workings. Several commenters questioned the 
application of the phrase ``reasonable angle of draw'' in paragraph (b) 
of the proposed rule, and noted that it should instead be based on the 
hydrologic regime. As pointed out by several commenters, the angle of 
draw is a term more appropriate for defining the limits of surface 
subsidence impacts that could occur adjacent to an area of high 
extraction mining. Commenters pointed out that hydrologic impacts to 
surface water and groundwater related to dewatering caused by high 
extraction mining may extend significantly beyond the limits of direct 
subsidence impacts as measured by the angle of draw. Therefore, these 
commenters suggested we adopt a term that more accurately addresses the 
potential limits of dewatering. We acknowledge that dewatering impacts 
may extend beyond the limits defined by the angle of draw; therefore, 
we are replacing the term ``angle of draw'' with the term ``angle of 
dewatering''. As the commenters recognized, the actual zone of 
hydrologic impacts to surface water and groundwater caused by 
subsidence induced dewatering will be highly site specific depending of 
lithology, depth of coal seam, aquifer characteristics and the extent 
to which groundwater contributes to surface flow of streams. Due to the 
variability of these impacts and the site specific nature of the data 
needed to accurately determine the angle of dewatering we are not 
placing a specific limits on this area; instead, we are defining the 
term ``angle of dewatering'' to mean, ``the angle created from a 
vertical line drawn from the outer edge or boundary of high-extraction 
underground mining workings and an oblique line drawn from terminus of 
the vertical line at the mine floor to the farthest expected extent 
that the mining will cause dewatering of groundwater or surface 
water.'' This definition,\111\ or similar variations, has been in use 
for many years, and is commonly used in defining the potential impact 
area for stream dewatering and other adverse impacts to surface water 
and groundwater.
---------------------------------------------------------------------------

    \111\ D.Y. Dixon and H.W. Rauch, The Impact of Three Longwall 
Coal Mines on Streamflow in the Appalachian Coalfield, In the 
Proceedings of the 9th International Conference on Ground Control in 
Mining, Morgantown, W.V.,169-182 (1990).
---------------------------------------------------------------------------

    We also received several comments on this proposed definition that 
we are not adopting. A couple of commenters expressed concern regarding 
the potential inability to access the ``adjacent area'' because of a 
lack of landowner consent. We acknowledge that lack of landowner 
consent may restrict data collection. However, the regulatory authority 
needs sufficient data about the adjacent area to properly evaluate the 
permit application and

[[Page 93096]]

prepare the cumulative hydrologic impact assessment. If one landowner 
refuses access, one solution could be to expand the initial ``adjacent 
area'' to include land further away for which access can be obtained. 
We encourage permit applicants to work with the regulatory authority to 
determine an appropriately-sized ``adjacent area'' with sufficient 
sampling points to satisfy all planning and regulatory needs.
    Additionally, several commenters opined that the proposed 
definition of ``adjacent area'' would result in an expanded permit area 
to secure access and result in increased costs. In some cases the 
permit area may coincide with the extent of probable impacts; however, 
that is the exception. Most of the time the permit area is smaller than 
the ``adjacent area''; therefore, we do not believe this definition 
will impact the size of the permit area.
    One commenter proposed adoption of the adjacent area definition 
used by the Wyoming Department of Land Quality. That definition 
provides that ``[a]djacent area means land located outside the permit 
area upon which air, surface water, groundwater, fish, wildlife, or 
other resources protected by the Act may reasonably be expected to be 
adversely impacted by mining or reclamation operations. Unless 
otherwise specified by the Administrator, this area shall be 
presumptively limited to lands within (one-half mile) of the proposed 
permit area.'' This suggestion was not accepted because of the one-
size-fits-all minimum application of ``one-half mile.'' We have no 
indication that this size limitation would ensure the inclusion of all 
areas where there is the reasonable probability of adverse impacts.
    One commenter alleged that the proposed rule inappropriately 
assumes that adjacent waters are inextricably linked to, what the 
commenter referred to as, ``the core/jurisdictional waters.'' This 
commenter explains that adjacent waters may have little, if any, 
biological connection to ``the core/jurisdictional waters;'' they may 
contain two distinct, functionally independent communities that may 
only interact slightly. We disagree that the rule assumes a biological 
connection between two adjacent water bodies. The rule at section 
780.19 requires the operator to collect geologic, hydrologic, and 
biologic data in the permit area and adjacent area. To the extent that 
distinct, functionally independent communities exist in adjacent areas, 
the baseline data collection will document that fact. This information 
will then assist the operator and the regulatory authority to better 
understand the potential cumulative impact on the hydrologic and 
biologic environment in the permit and adjacent areas from the proposed 
operation.
    Paragraph (c) \112\ of the proposed definition established what the 
term ``adjacent area'' means with respect to underground mine pools. 
Two commenters questioned the need for including paragraph (c) within 
the definition of adjacent area. One of the two commenters asserted 
that the requirements in the existing paragraph (c) are adequately 
addressed and there is no need for revision and the other commenter 
asserted that the requirements are sufficiently discussed in paragraph 
(a), now final paragraph (1). Final paragraph (c), now final paragraph 
(3), is retained because it highlights the importance of ensuring that 
areas that might be affected physically or hydrologically by the 
dewatering of a mine pool or areas that may develop mine pools will be 
included in the adjacent area because of the long-term cost associated 
with remediation and treatment of discharges that could continue in 
perpetuity. Inclusion of these areas ensures that sufficient 
groundwater data will be collected to assist the regulatory authority 
to determine what, if any, impacts the mine operation will have on 
areas that mine pools could adversely impact.
---------------------------------------------------------------------------

    \112\ 80 FR 44436, 44467-68 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In conjunction with the comments listed above, both commenters 
recommended, that if proposed paragraph (c), now final paragraph (3), 
is retained, that we replace the words ``might be affected'' in the 
final rule language. One commenter suggested replacing the words 
``might be affected'' with ``may realize physical or hydrological 
adverse impacts.'' This phrase does not afford the regulatory authority 
sufficient flexibility in making determinations about areas that may be 
affected by dewatering. The other commenter suggested we replace 
``might be affected'' with ``could reasonably be significantly 
affected, based on the professional judgment of a professional 
hydrologist within the regulatory authority.'' This phrase is too vague 
and subjective, particularly since the commenter does not explain what 
the term ``reasonably be significantly affected'' means. Therefore, we 
are retaining the words ``might be affected'' in the final rule text 
within final paragraph (3) and adopting paragraph (c), as proposed, 
with the exception of renumbering it as final paragraph (3).
    In the preamble to the proposed rule, we invited comment on whether 
the definition of ``adjacent area'' should prescribe the Hydrologic 
Unit Code (HUC) 12 watershed or a more appropriate minimum watershed 
size for the adjacent area for surface water resources. Several 
commenters supported inclusion of at least the next higher order 
drainage area for baseline surface water characterization where 
dewatering of streams by longwall or other high-extraction mining may 
occur as a mechanism to define adjacent area. In contrast, another 
commenter strongly opposed an approach of using the next higher order 
drainage area to determine ``adjacent area''. That commenter stated 
that using the definition of ``adjacent area'' as the drainage area of 
the operation and at least the next higher order drainage area could 
result in several thousand acres and associated stream lengths being 
added to the stream mapping and monitoring requirements. We agree with 
this commenter and have not changed the definition for two reasons. 
Changing the definition to include a specific watershed would create 
fixed boundaries for the ``adjacent area'' and may not be adequate to 
capture all areas with probable impacts on resources. In addition, the 
fixed area may be larger than necessary, which may result in collection 
of data with little or no value for evaluation of the impacts of mining 
and reclamation.
Angle of Dewatering
    In response to numerous comments, we are adding the definition of 
``angle of dewatering'' to the final rule. As we discussed in the 
definition of ``adjacent area'' we are defining the term ``angle of 
dewatering'' to mean, ``the angle created from a vertical line drawn 
from the outer edge or boundary of high-extraction underground mining 
workings and an oblique line drawn from the terminus of the vertical 
line at the mine floor to the farthest expected extent that the mining 
will cause dewatering of groundwater or surface water.'' This 
definition,\113\ or similar variations, has been in use for many years, 
and is commonly used in defining the potential impact area for stream 
dewatering and other adverse impacts to surface water and groundwater 
as a result of underground mining. As the commenters recognized, the 
actual zone of hydrologic impacts to surface water and groundwater 
caused by subsidence induced dewatering will be highly site specific; 
depending of lithology, depth of coal seam, aquifer characteristics, 
and

[[Page 93097]]

the extent to which groundwater contributes to surface flow of streams. 
Due to the variability of these impacts and the site specific nature of 
the data needed to accurately determine the angle of dewatering it is 
not possible to define one all-inclusive ``angle'' of dewatering. 
Therefore, we are identifying impacts to be expected within the ``angle 
of dewatering''. The permittee will be responsible for performing the 
necessary onsite investigation to estimate the ``angle of dewatering'', 
and to define the potentially affected surface area and groundwater 
resources.
---------------------------------------------------------------------------

    \113\ Dixon, supra at 169-182.
---------------------------------------------------------------------------

Approximate Original Contour
    We proposed to revise the definition of ``approximate original 
contour'' to clarify that the term refers to the general land 
configuration within the permit area as it existed before any mining 
and not to a configuration immediately prior to the current mining. As 
the preamble explained,\114\ this approach is consistent with section 
515(b)(2) of SMCRA,\115\ which requires that surface coal mining and 
reclamation operations be conducted so as to ``restore the land 
affected to a condition capable of supporting the uses which it was 
capable of supporting prior to any mining . . . .''. As the preamble 
also explained,\116\ the U.S. District Court for the District of 
Columbia held that the word ``any'' used in this SMCRA section 
``indicates that Congress intended the operator to restore the land to 
the condition that existed before it was ever mined.'' \117\
---------------------------------------------------------------------------

    \114\ 80 FR 44436, 44468 (Jul. 27, 2015).
    \115\ 30 U.S.C. 1265(b)(2).
    \116\ Id.
    \117\ In re Permanent Surface Mining Regulation Litigation. I, 
Round I (PSMRL I, Round I), 1980 U.S. Dist. LEXIS 17722 at *95 
(D.D.C. 1980).
---------------------------------------------------------------------------

    Numerous commenters took exception to the addition of the word 
``any'' in front of the word ``mining'' in the definition of 
approximate original contour. One commenter contended that the current 
definition is clear and should not be changed and that the proposed 
change would conflict with the statutory definition at section 701(2) 
of SMCRA.\118\ As stated above, and in the preamble to the proposed 
rule, the changes to this definition only clarify our longstanding 
policy that ``approximate original contour'' refers to the general land 
configuration within the permit area as it existed before any mining 
and not to a configuration immediately prior to the current mining. The 
use of the term ``original'' within the definition of approximate 
original contour supports the contention that restoration is based on 
the land's original or natural configuration, before any mining, and 
not on its altered contour as impacted by pre-SMCRA mining. The 
addition of the word ``any'' simply clarifies this point. Clearly, 
SMCRA did not intend previously mined landscapes with dangerous 
highwalls and ungraded spoil piles and ridges as an acceptable 
postmining topography when they are remined under SMCRA. The added 
language is intended to assure these lands will be reclaimed to 
eliminate as many of these adverse features and contours to the extent 
possible. During a nationwide evaluation of approximate original 
contour in 2010, we learned that certain state regulatory authorities 
were allowing pre-SMCRA abandoned mine land features, such as dangerous 
highwalls and ungraded spoil piles and ridges, to form the basis of 
postmining topography when they are remined under SMCRA. This practice 
is not allowed under SMCRA and the changes to this definition provide 
clarification but do not depart from, nor conflict with, the statutory 
definition, as suggested by the commenter.
---------------------------------------------------------------------------

    \118\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

    Other commenters stated that it was not appropriate to require 
current mining operations to repair the damage caused by pre-law mine 
operations. Another commenter asked us to clarify when the new 
definition might be applied on previously mined areas permitted before 
or after the effective date of the new rule, as it could have major 
impact on staff resources to re-review previously approved plans. As 
mentioned above, the clarification that pre-SMCRA abandoned mine land 
features may not provide the basis for approximate original contour is 
not a new requirement. Therefore, all SMCRA permits should already 
contain reclamation plans that ensure that the land will be reclaimed 
to the general surface configuration of the land prior to mining, 
regardless of this rulemaking. Furthermore, as discussed below, it is 
common practice for remining operations to repair the damage caused by 
pre-law mine operations. While SMCRA does not limit operations to only 
remining operations, and does not require operators to reclaim 
abandoned mine land features outside of a permit disturbance boundary, 
any previously mined areas that are re-disturbed during the course of 
remining must be reclaimed according to all of the requirements of 
SMCRA. No changes were made as a result of these comments.
    Other commenters not only objected to the addition of the word 
``any'' before the word ``mining'' in the definition of approximate 
original contour at Sec.  701.5, the commenters questioned our legal 
authority to make this modification to our regulations. These 
commenters contend that requiring operations to ensure that the 
reclaimed area closely resembles the general surface configuration 
prior to any mining, instead of the general surface configuration just 
prior to permit issuance, would impose an unachievable standard. 
However, the requirement that operations ensure that the reclaimed area 
closely resemble the general surface configuration prior to any mining 
is not a new requirement. In fact, SMCRA's legislative history shows 
that, except in limited circumstances, it was commonly understood that 
previously mined areas could and should be remined and reclaimed to 
achieve original contours. When testifying about Pennsylvania's surface 
coal mining law, the basis for SMCRA, Pennsylvania's Governor Milton J. 
Shapp testified that:

    Since our strip mining laws have been in effect, many coal 
operators have come back in the same area and are now digging the 
second seam; and, of course, as they do that, they are restoring the 
original contour, so that a large percentage of the scars of western 
Pennsylvania, where we has [sic] this double seam, have already been 
corrected . . . .

    H.R. 2 Hearing Part II at 46. The addition of the word ``any'' is 
merely a clarification. Furthermore, commenters did not provide an 
explanation or an example to illustrate why this requirement is 
unachievable.
    In support of their contention that we lack the legal authority to 
insert the word ``any'' into the definition of approximate original 
contour, commenters made three main arguments. First, commenters rely 
on two recent decisions from the Departmental Cases Hearings Division 
in the Department's Office of Hearings and Appeals, in which an 
administrative law judge allowed a mining company to model postmining 
surface configurations on pre-SMCRA abandoned mine land features. 
However, decisions of administrative law judges are not Departmental 
precedents and are not binding on the Interior Board of Land Appeals, 
other administrative law judges, the Office of Surface Mining, or 
Article III Courts. West Cow Creek Permittees v. BLM, 142 IBLA 224, 235 
n.16 (1998). In fact, administrative decisions of this type are only 
binding on the parties if the decision is not appealed or if the 
decision is upheld upon appeal to the Interior Board of Land Appeal. In 
this case, both decisions have been appealed to the Interior Board of 
Land Appeals

[[Page 93098]]

and are awaiting a decision. Finally, these decisions did not address 
our authority under SMCRA but were based on a state regulatory 
authority's interpretation of its regulations.
    Second, commenters stated that it was incorrect for us to reference 
the postmining land use and backfilling and grading performance 
standards at Sections 515(b)(2) and (b)(3) of SMCRA in support of its 
clarification that postmining surface configuration should be based on 
contours prior to any mining. These commenters instead insist that we 
should only consider the statutory definition of approximate original 
contour at section 701(2) \119\ in its analysis of whether approximate 
original contour should be based on the contours prior to any mining or 
whether it is appropriate to base postmining contours on pre-SMCRA 
abandoned mine land features present at the proposed mining site at 
permit issuance. We do not agree. Postmining land use and approximate 
original contour are closely linked and should not be artificially 
separated. The requirements at sections 515(b)(2) and (b)(3) \120\ that 
land be backfilled and graded to ``restore the approximate original 
contour'' with all highwalls, spoil piles, and depressions eliminated 
and ``restore'' the land to the uses that ``it was capable of 
supporting prior to any mining'' complement each other, ensuring that 
the standard for reclamation is the condition of the land in its 
natural, or ``original'' condition, prior to any mining activities. Our 
longstanding understanding of this connectedness is evidenced in the 
fact that approximate original contour and postmining land use are 
listed together at 816.102(a) as requirements for backfilling and 
grading.
---------------------------------------------------------------------------

    \119\ 30 U.S.C. 1291(a)(2).
    \120\ 30 U.S.C. 1265(b)(2) and (b)(3).
---------------------------------------------------------------------------

    Third, a few commenters questioned whether requiring that 
approximate original contour be based on the condition of the land 
prior to any mining would preclude the beneficial practice of remining. 
We agree that section 102(h) of SMCRA \121\ promotes the reclamation of 
pre-law sites that have been left in an environmentally degraded 
condition. However, these commenters may not be aware that our 
regulations already provide an approximate original contour exemption 
for previously mined areas ``where the volume of all reasonably 
available spoil is demonstrated in writing to the regulatory authority 
to be insufficient to completely backfill the reaffected or enlarged 
highwall.'' 30 CFR 816.106(b). In promulgating our regulation at Sec.  
816.106, we determined that no approximate original contour exception 
was necessary where a previously mined area has sufficient spoil to 
completely backfill the reaffected area or enlarged highwall. In those 
instances, there is no reason to treat the site any differently and the 
operator must follow the general backfilling and grading requirements 
at Sec.  816.102. If approximate original contour were based on the 
surface configuration at permit issuance, instead of our longstanding 
policy of using the surface configuration prior to any mining, the 
exemption for previously mined areas would not be necessary because an 
applicant would always be able to base reclamation on any pre-SMCRA 
abandoned mine land features within a permit, such as orphan spoil 
piles, pits, and highwalls. This outcome would not result in the 
reclamation of previously mined areas. While encouraging remining is 
important, we have already provided an exemption for certain remining 
activities and do not believe that a greater exemption is necessary to 
encourage reclamation of pre-SMCRA abandoned coal mine sites through 
remining. For the preceding reasons, we find the arguments challenging 
our legal authority to make these changes unsupported and have not 
revised our definition.
---------------------------------------------------------------------------

    \121\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    One commenter expressed concern that the proposed changes could be 
interpreted to alter the core elements of approximate original contour. 
While this comment did not request a change to the definition, we can 
confirm that the changes do not alter the requirement that the 
reclaimed area must closely resemble the general surface configuration 
prior to any mining, must blend into and complement the drainage 
pattern of the surrounding terrains, and must contain no highwalls or 
spoil piles. These requirements apply, regardless of the presence or 
absence of abandoned mine land features, unless a separate exception 
applies.
    Another commenter expressed concern that returning land to its 
approximate original contour would limit certain types of postmining 
land uses. Commenters did not provide any examples of situations where 
removal of pre-SMCRA abandoned mine land features would preclude any 
postmining land uses. We do not share the concern expressed by this 
commenter. In our experience, ensuring the elimination of pre-SMCRA 
abandoned mine land features only enhances the land's capability to 
support a wider variety of postmining land uses. Therefore, we do not 
believe that there is any need to make changes to the definition of 
approximate original contour based on these comments.
    Several commenters stated that approximate original contour 
conditions before any mining might be difficult to determine because 
some sites may have been mined before the publication of United States 
Geological Survey quadrangle maps or were mined centuries ago. We do 
not believe that the lack of detailed USGS topographic maps or other 
information for very old pre-SMCRA mined areas should inhibit the 
ability to comply with this requirement. Considering the remining of 
previously mined sites requires an approximate restoration and not an 
exact restoration of contours, before any mining, general knowledge of 
the natural topography typical of the local area should be sufficient. 
We made no changes as a result of this comment.
    Similarly, one commenter expressed concern that the changes in the 
language of the definition somehow altered the standard for requiring 
the restoration of land configuration from ``approximate'' to ``exact'' 
original contours. It is not our intent to require reclamation to 
achieve the ``exact'' original contour. The final rule reflects that 
changes in the surface configuration after mining compared to the 
land's configuration before any mining are allowed as long as the 
premining configuration closely resembles the post-mine configuration. 
Another commenter requested that we explain the meaning of the term 
``approximate'' or ``closely resembles'' as it relates to the 
definition of approximate original contour. Such a discussion is not 
necessary as the use of these terms within the definition have not been 
proposed for change and maintain the same meaning as they had before 
this revised definition.
    Some commenters expressed concern that the revised definition 
implies that soil resources from previously mined areas must be 
restored, and argued that soil resources at many pre-law sites were not 
protected and it would be unreasonable to impose such a requirement to 
fully reclaim them. We disagree that the revised definition of 
approximate original contour implies, or could reasonably require, 
permittees and mine operators to recreate soil resources that have been 
permanently lost. We fully recognize that previously mined areas 
commonly have significant limitations. At the same time, these 
limitations should not be used as an excuse to not make improvements, 
such as elimination of highwalls and spoil piles, and remediation of 
hazardous and environmentally degraded conditions. We also reject the 
comment that grading

[[Page 93099]]

of remined spoil piles to meet approximate original contour is 
technically and economically impossible. Most on-going remining 
operations currently comply with the requirement of Sec.  816.102 and 
are already achieving approximate original contour. Where they have 
insufficient spoil to fully reclaim the highwall, Sec.  816.106 
provides an alternative option for reclamation. We therefore decline to 
make changes in this definition based on these comments.
    Others commented that the changes to the approximate original 
contour definition appear to focus mainly on problems in Appalachia, 
where remining, thick overburden, and mountaintop removal are 
prevalent. While we agree that these conditions may be prevalent in 
Appalachia, sites with previously mined areas exist throughout the coal 
regions. For example, we noted problems with achieving approximate 
original contour in Oklahoma in a 2010 National Priority Review of 
approximate original contour. The clarifications provided in this final 
rule are applicable nationwide and will ensure that, unless an 
operation qualifies for an exemption from the requirement to achieve 
approximate original contour, such as the exemption for previously 
mined areas with insufficient spoil to completely reclaim the highwall 
under Sec.  816.106, the reclamation will be based on contours present 
prior to any mining.
    Several commenters advocated expanding the definition of 
approximate original contour to include the restoration of topography 
damaged by surface subsidence from underground mining, specifically 
longwall mining. Other commenters expressed opposition to the inclusion 
of such language and instead urged that subsidence from underground 
mining be specifically excluded from the definition of approximate 
original contour. After consideration of both positions, we have 
determined that these changes are not necessary because approximate 
original contour is not applicable to surface subsidence for 
underground mining. Pursuant to section 701(2) of SMCRA, the 
requirement to achieve approximate original contour is applicable to 
``reclaimed areas, including any terracing or access roads,'' that are 
subject to ``backfilling and grading of the mined area.'' \122\ As the 
area above underground mine works are not part of the mined area that 
are backfilled and graded, they are not subject to requirements of 
approximate original contour. Therefore, expanding the definition of 
approximate original contour to include the restoration of topography 
caused by settlement due to underground mine subsidence would be 
inappropriate. Furthermore, following the same logic, explicitly 
excluding underground mining subsidence impacts is unnecessary because 
approximate original contour already does not apply to these impacts.
---------------------------------------------------------------------------

    \122\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

    One commenter alleged that the post mining configuration should 
only have to resemble the areas surrounding the permits and that the 
proposed addition of the phrase ``within the permit area'' to the 
definition of approximate original contour is unlawful and contrary to 
SMCRA. The commenter based this contention on one portion of the 
statutory definition of approximate original contour that references 
``the surrounding terrain''. We did not adopt this comment as it does 
not fully reflect the definition as it appears in SMCRA. The full 
statutory definition reads `` `approximate original contour' means that 
surface configuration achieved by backfilling and grading of the mined 
area so that the reclaimed area . . . closely resembles the general 
surface configuration of the land prior to mining and blends into and 
complements the drainage pattern of the surrounding terrain. . . .'' 
\123\ The interpretation urged by the commenter fails to give force to 
the beginning of the definition, which requires that the reclaimed area 
closely resemble the general surface configuration of the land prior to 
mining and misses the distinction between resembling the surface 
configuration and blending into the surrounding area. The purpose of 
blending the reclaimed mined area with surrounding terrain is to ensure 
that there is a topographic connection that avoids dangerous and abrupt 
topographic changes, often due to swell and bulking factors. 
Complementing the drainage patterns of the surrounding area is also 
necessary to ensure that surface water flows similarly to how it did 
before mining and that it does not cause pooling above the mine site or 
downstream off-site damage. Approximate original contour has never been 
based on restoring the configuration of the mined area to resemble the 
surrounding terrain, especially because, in some situations, the 
topographic differences can be significant. As an example, if the mined 
area were flat to gently rolling topographically before any mining and 
the surrounding area were naturally a much steeper topography, it would 
be inappropriate to reclaim the mined area with the intention of using 
the surrounding terrain as the approximate original contour model. In 
this example, to achieve the requirements of approximate original 
contour, the mined area that was topographically flat to gently rolling 
before any mining should be reclaimed to a flat to gently rolling 
topography.
---------------------------------------------------------------------------

    \123\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

    Commenters alleged that our proposed change does not adequately 
consider the effects of swell or bulking factors on grading and that an 
unintended consequence of our proposed change might be the construction 
of more excess spoil fills. While the commenters did not clearly 
explain why they believed that changes to the approximate original 
contour definition would have this result, other commenters mistakenly 
believed that our changes were intended to require the sites to be 
returned to the ``exact'' premining contours, which would limit the 
amount of spoil that could be returned to the mined out area and 
increase the need for excess spoil fills. However, as we explained 
above, our rule change does not require a return to the exact premining 
contours and therefore we do not anticipate an increased demand for 
excess spoil fills. Therefore, we have not made any change to this 
definition in response to these commenters.
    One commenter asserted that the proposed definition deletes the 
reference in the statutory definition to permanent water impoundments. 
That is not the case. The final definition, like the proposed 
definition, provides that the requirement to eliminate all highwalls 
and spoil piles does not prohibit ``the approval of permanent water 
impoundments that comply with Sec. Sec.  816.49, 816.55, and 780.24(b) 
or Sec. Sec.  817.49, 817.55, and 784.24(b) of this chapter.'' That 
provision is substantively identical to the previous definition in 
Sec.  701.5.
    Other commenters stated they were unclear as to whether the rule 
would allow the creation and approval of the type of impoundments 
frequently referred to as final-cut impoundments or final-cut lakes. 
Some of these commenters pointed out that impoundments can serve as an 
aquatic resource for fish and wildlife habitat and are often requested 
by landowners. We agree that permanent water impoundments, including 
properly constructed final-cut lakes, can provide valuable fish and 
wildlife habitat, recreational facilities, or water resource features. 
For that reason, our definition of ``land use'' in section 701.5 
includes ``developed water resources'' as a specific land use category. 
As previously noted, the final definition of

[[Page 93100]]

``approximate original contour'' specifically allows permanent water 
impoundments that comply with Sec. Sec.  816.49, 816.55, and 780.24(b) 
or Sec.  817.49, 817.55, and 784.24(b). Sections 816.49(b) and 
817.49(b) of our rules establish criteria for the approval of permanent 
impoundments, including final-cut impoundments. Paragraphs (b)(7) and 
(8) of those rules are particularly pertinent to final-cut 
impoundments. They require a demonstration that approval of the 
impoundment would not result in retention of spoil piles or ridges that 
are inconsistent with the definition of approximate original contour or 
the creation of an excess spoil fill elsewhere within the permit area.
    A commenter approved of the clarification in the proposed rule 
\124\ that coal refuse piles should be evaluated separately from the 
analysis of approximate original contour. As the commenter noted, 
requirements for the construction of permanent coal mine refuse piles 
are addressed separately from approximate original contour at 
515(b)(11) and 516(b)(4) of SMCRA.\125\ The regulations for coal waste 
are available at Sec. Sec.  816.81, 816.83, 816.84, 816.87, 817.81, 
817.83, 817.84, and 817.87. However, if coal refuse material is placed 
in the mined out area, the mined out area must still be returned to 
approximate original contour unless the regulatory authority has 
approved a coal refuse disposal area in that location. We have not made 
any changes to the proposed rule in response to this comment.
---------------------------------------------------------------------------

    \124\ 80 FR 44436, 44468 (Jul. 27, 2015).
    \125\ 30 U.S.C. 1265(b)(11) and 1266(b)(4).
---------------------------------------------------------------------------

Backfill
    We received no comments on this proposed definition, which we are 
adopting as proposed.
Bankfull Stage
    We proposed to define ``Bankfull'' as the ``water level, or stage, 
at which a stream, river, or lake is at the top of its banks and any 
further rise would result in water moving into the flood plain.'' \126\ 
We explained in the preamble to the proposed rule that the proposed 
definition paralleled the definition in the National Weather Service 
glossary and clarified the technical and scientific term that we use 
``to more precisely fix the boundaries of stream buffer zones and 
riparian corridors in our proposed stream restoration requirements.'' 
\127\ As explained below, we modified this definition in response to 
comments.
---------------------------------------------------------------------------

    \126\ 80 FR 44436, 44587 (July 27, 2015).
    \127\ Id. at 44469.
---------------------------------------------------------------------------

    One commenter argued that the definition of ``bankfull'' should 
include a storm frequency interval to make the definition applicable to 
altered watersheds or systems that have experienced downcutting and are 
disconnected from floodplains. It was never our intent to except 
altered watersheds or systems that are disconnected from floodplains 
from this definition. We agree that streams, such as those with steep-
sloped areas, that may be entrenched and lack a floodplain should be 
addressed by the definition because entrenched streams are commonly 
found within all of the coal regions of the United States. In 
consideration of this comment, we are adding the term ``stage'' to the 
term ``bankfull'' and revising the definition to include entrenched 
streams, rivers and lakes. The term ``bankfull stage'' is appropriate 
because experts generally use the term ``bankfull stage'' when 
describing high water events in streams, rivers, or lakes that have 
active flood plains or are entrenched. For entrenched streams, rivers, 
or lakes, experts define ``bankfull stage'' as the highest scour line, 
bench, or top of the point bar.\128\
---------------------------------------------------------------------------

    \128\ See, e.g., Dave Rosgen, Applied river morphology, Wildland 
Hydrology, Pagosa Springs, Colorado (1996); Cheryl Harrelson et al., 
Stream channel reference sites: an illustrated guide to field 
techniques. Gen Tech. Rep. RM-245, Fort Collins, Colorado (1994); 
U.S. Department of Agriculture, Forest Service, Rocky Mountain 
Forest and Range Experiment Station.; William A. Harmon, Finding 
Bankfull Stage in North Carolina Streams, Volume 590, Issue 3 of AG 
(Series) River course, North Carolina Cooperative Service Extension 
Service (2000).
---------------------------------------------------------------------------

    Another commenter alleged that the proposed definition of 
``bankfull'' is inconsistent with the definitions of leading experts 
such as Rosgen, the United States Geological Survey, and North Carolina 
University. The commenter argued that multiple other factors in the 
proposed rule--such as bankfull width, depth, and flood prone area--
rely on a properly assessed ``bankfull stage'' and that an incorrect 
definition would lead to inaccurate data, which in turn would lead to 
improperly designed projects. In place of the ``bankfull'' definition, 
the commenter argued for consistent and clear terminology, such as the 
definition relied on by leading experts, to ensure that appropriate and 
accurate data are collected. Additionally, the commenter argued that 
the definition and proposed rule increased confusion because the agency 
did not provide guidance for the calculation of flood prone areas or 
include references to methods such as hydrologic modeling, Federal 
Emergency Management Agency flood maps, a standard distance from top of 
banks, or Rosgen's 2X maximum bankfull depth method. Calculation of 
flood prone areas is not germane to the definition of ``bankfull 
stage''; however we would expect that standard engineering practices 
would be used to calculate the flood prone areas. Our rule uses 
``bankfull stage'' only for the purpose of determining the point from 
which the stream buffer zone must be measured and describing stream 
channel profiles. As we discuss above, we have revised the term from 
``bankfull'' to ``bankfull stage'' and have more consistently aligned 
our proposed definition to the definition relied on by leading experts.
    One commenter argued that a definition of ``bankfull'' is not 
necessary because most ephemeral streams do not have banks. We 
disagree. For the reasons explained later in this preamble, we modified 
the definition of ``ephemeral stream'' in the final rule to ``include[ 
] only those conveyances with channels that display both a bed-and-bank 
configuration and an ordinary high water mark, and that have streambeds 
located above the water table year-round.'' Thus, if a conveyance lacks 
a bank, we would not classify the conveyance as a stream. As such, a 
definition of ``bankfull stage'' remains necessary to establish the 
boundaries of the streamside vegetative corridor for all stream types.
    In the final rule, ``bankfull stage'' means the water level at 
which a stream, river, or lake begins to overflow its natural banks and 
enter the active floodplain or if the stream, river, or lake is 
entrenched, bankfull stage is identified as the highest scour line, 
bench, or top of the point bar. This term and definition applies to all 
streams, rivers, and lakes.
Biological Condition
    We proposed to define ``biological condition'' as a measure of the 
ecological health of a stream or segment of a stream as determined by 
the type, diversity, distribution, abundance, and physiological state 
of aquatic organisms and communities found in the stream or stream 
segment. Some commenters expressed support for the proposed definition. 
Some commenters questioned how this term differed from another new term 
that we proposed to define, ``ecological function''. In response, we 
revised the definition of ``biological condition'' by deleting the 
statement that biological condition is a measure of the ecological 
health of a stream or segment of a stream. The final

[[Page 93101]]

definition clarifies that biological condition refers to the 
characteristics of the biota found in surface water bodies, including 
streams.
    Several commenters requested we remove the term ``physiological 
state'' from the definition of biological condition because it refers 
to a condition that is difficult to measure and also implies that any 
change in this condition would prevent mining. We agree with this 
assessment. ``Physiological state'' may be unmeasurable and our 
concerns are effectively addressed by the rest of the definition of 
``biological condition'' when it refers to the type, diversity, 
distribution, and abundance of aquatic organisms and communities found 
in a stream, stream segment, or other waters. Therefore, we have 
deleted ``physiological state'' in the definition of ``biological 
condition'' within the final draft rule.
    One commenter expressed concern that the definition of ``biological 
condition'' coupled with the definition of ``parameters of concern'' 
would impose new and burdensome requirements. We disagree. We define 
``parameters of concern'' as those chemical or physical characteristics 
and properties of surface water or groundwater that could be altered by 
surface or underground coal mining activities, including discharges 
associated with those activities, in a manner that would adversely 
impact the quality of groundwater or surface water, including adverse 
impacts on aquatic life. The definition of ``parameters of concern'' 
clarifies that these parameters may be of import because of potential 
impacts on biological conditions. Neither the definition of 
``parameters of concern'' nor ``biological condition'' prescribe 
additional biological data collection beyond the requirements expressly 
defined elsewhere in the final rule.
    Some commenters noted that gathering data on ``biological 
condition'' of streams would increase permitting and monitoring costs 
on the part of the operator and the burden of the regulatory authority 
to review the resulting data. We agree with the commenters and have 
made several changes to these requirements in relationship to ephemeral 
and intermittent streams. These changes can be found within final rule 
Sec. Sec.  780.19(c)(6) and 784.19(c)(6), related to underground 
mining, formerly Sec. Sec.  780.19(e) and 784.19(e) of the proposed 
rule. These changes will reduce the cost and time commitment of the 
operator and regulatory authority. However, as further described in the 
preamble discussion of final rule Sec. Sec.  780.19(c)(6) and 
784.19(c)(6), below, some of this information is necessary to 
adequately determine the condition of the stream premining, during 
mining, and after mining because these inventories and assessments 
provide crucial information on the function of these streams.
    One commenter requested that we exclude ephemeral streams from the 
definition of ``biological condition'' because assessment of the 
biological condition of ephemeral streams is impractical and 
unreasonable due to inconsistent flows. We agree with the commenter's 
statement about the impracticality of assessing the biological 
condition of ephemeral streams. However, instead of revising the 
definition of biological condition, as explained above, we have revised 
our baseline data requirements. This revision to final Sec.  
780.19(c)(6)(vi), includes the elimination of the requirement that 
permit applications include baseline data on the biological condition 
of ephemeral streams.
    We also revised the definition of ``biological condition'' by 
adding the phrase ``found in surface water bodies, including streams'' 
because biological condition assessments are not inherently limited to 
streams. This change was made to better tailor the definition to the 
manner in which the term is explained and used in a final report from 
the U.S. Environmental Protection Agency Practitioners Guide \129\ 
stating, ``[a]s a practical matter, our rules use this term only in 
connection with perennial and intermittent streams, but there is no 
scientific basis for limiting the definition itself in that manner.''
---------------------------------------------------------------------------

    \129\ U.S. Envtl. Prot. Agency, A Practitioner's Guide to the 
Biological Condition Gradient: A Framework to Describe Incremental 
Change in Aquatic Ecosystems. EPA-842-R-16-001. U.S. Envtl. Prot. 
Agency, Washington, DC (2016).
---------------------------------------------------------------------------

Cumulative Impact Area
    We are adopting the definition of ``cumulative impact area'' as 
proposed with the following exceptions. We have altered the 
nomenclature of this definition by modifying the paragraphs to conform 
to the rest of the rule. Instead of using (a) through (c) to designate 
paragraphs, as we did in the proposed rule, we use (1) through (3) to 
designate paragraphs in the final rule.
    One commenter requested that, at a minimum, the eight or six digit 
hydrologic unit code be used to delineate the cumulative impact area to 
ensure the inclusion of all impacts from active, closed, and expired 
mines on downstream water quality. We are not modifying the final rule 
to accommodate this request. Regulatory authorities are required to 
assess the probable cumulative impacts of all anticipated mining in a 
given area, regardless of a specified hydrologic unit code (HUC), to 
assure the proposed operation has been designed to prevent material 
damage to the hydrologic balance outside the permit area. Therefore, 
the region that needs to be included in an area may be larger or 
smaller than a HUC 6 or 8.
    Numerous commenters asked us to consider deleting the requirement 
within the proposed rule of using a HUC-12 watershed size in 
delineating the ``cumulative impact area''. The commenters stressed 
that a HUC-12 watershed may be appropriate in some cases but would 
result in areas that are too broad or too restrictive in others. The 
commenters requested the proposed rule be revised to allow the 
regulatory authority flexibility in requiring a more suitably-sized 
watershed approach based on the permit area under consideration, 
existing and anticipated coal mining operations, and site and regional 
characteristics. We agree with the commenters and have revised the 
proposed definition to allow the use of a HUC-12 or a different-sized 
watershed deemed appropriate for purposes of preparation of the 
cumulative hydrologic impact assessment. This change will allow the 
regulatory authority to use a watershed size that is more appropriate 
to the area under evaluation.
    In addition to this change we altered the definition of 
``cumulative impact area'' within the final rule by renumbering the 
paragraphs and removing proposed paragraph (c)(6). Proposed paragraph 
(c)(6) specified that anticipated underground mining includes all areas 
of contiguous coal reserves adjacent to an existing or proposed 
underground mine that are owned or controlled by the applicant. This 
proposal was included because, barring significant changes in economic 
or regulatory conditions, the mine would reasonably be expected to 
extend into those reserves in the future. We received numerous comments 
requesting that we not adopt the proposed requirement that the 
cumulative impact area include all areas of contiguous coal reserves 
adjacent to an existing or proposed underground mine when the applicant 
owns or controls those reserves. Commenters stated that the requirement 
was too broad and unworkable and could result in an increased burden on 
industry and the regulatory authority. Commenters also stated that the 
information related

[[Page 93102]]

to coal reserves may be proprietary, and that the cumulative impact 
area should be defined based on potential impacts from approved 
operations and operations that are in some stage of the permit 
application process instead of resource control or ownership. For the 
reasons presented by the commenters, we agree that the inclusion of all 
continuous coal reserves adjacent to an existing or proposed 
underground mine in proposed paragraph (c)(6) is too speculative. 
Therefore, we have removed it from the final definition.
    When neither baseline data nor analyses have been supplied by the 
applicant or permittee, a commenter claimed that it may not be 
technically feasible to assess the impacts of anticipated mining upon 
water resources during mining and reclamation and after final bond 
release. We agree that evaluation of potential impacts from areas of 
existing or anticipated mining on surface water and groundwater 
resources are not technically feasible in the absence of baseline or 
other data. This rule sets forth requirements for the collection and 
analysis of premining data about the site of the proposed mining 
operation and adjacent areas adequate to establish a comprehensive 
baseline that will facilitate evaluation of the effects of the proposed 
operation. If sufficient data is not available on areas of anticipated 
mining to allow for a meaningful analysis of potential impacts, the 
regulatory authority cannot approve the permit application in 
accordance with Sec.  780.21 of this rule. In addition, the commenter 
continued that we should provide guidance on incorporating anticipated 
mining areas into the cumulative hydrologic impact assessment. We 
disagree. The concept of including anticipated mining as part of the 
cumulative impact area is not new and has been an integral component of 
the cumulative impact area since the early 1980s. Sections 507(b)(11) 
and 510(b)(3) of SMCRA \130\ require that the regulatory authority 
prepare an assessment of the probable cumulative impact of all 
anticipated mining in the area upon the hydrology of the general area. 
In 1983, we adopted a definition of cumulative impact area to identify 
both the extent of the area that must be included in this evaluation 
and the scope of the term ``anticipated mining.'' Paragraphs (c)(1) 
through (3) of the proposed definition, now paragraphs (3)(i) through 
(iii) are substantively identical to paragraphs (a) through (c) of the 
previous definition. In addition, over the years, we have published 
several technical reference documents for the development of cumulative 
hydrologic impact assessments, including information on anticipated 
mining activities that provides guidance as requested by the commenter. 
Those documents are available on our home page on the internet 
(www.osmre.gov) or upon request.
---------------------------------------------------------------------------

    \130\ 30 U.S.C. 1257(b)(11) and 1261(b)(3).
---------------------------------------------------------------------------

    Several commenters stated there was no justification for a 
requirement to analyze the anticipated impacts after final bond release 
and that any requirement to do so was beyond SMCRA authority. In 
response, we have decided that it is neither feasible nor practical to 
attempt to predict anticipated cumulative impacts following final bond 
release. The final definition that we are adopting does not require 
this analysis of potential impacts after final bond release.
    One commenter disagreed with the inclusion of any proposed surface 
or underground coal mining operation for which a request for an 
authorization, certification, or permit has been submitted under the 
Clean Water Act as anticipated mining. We disagree with this comment. 
Inclusion of proposed operations in situations where the Clean Water 
Act authorization process has begun will result in preparation of a 
more comprehensive analysis by the permit applicant or permittee and 
the regulatory authority. Those operations are within the realm of 
anticipated mining because the permitting process for those mines has 
begun, albeit under the Clean Water Act rather than SMCRA. Nothing in 
section 507(b)(11) of SMCRA \131\ limits ``anticipated mining'' to 
operations that have begun the SMCRA permitting process. Further, Sec.  
780.27(a), about permitting requirements that apply to proposed 
activities in or through ephemeral streams and Sec.  780.28(a), about 
additional permitting requirements that apply to proposed activities 
in, through, or adjacent to a perennial or intermittent stream 
specifies that if the proposed permit area includes waters subject to 
the Clean Water Act, the regulatory authority must condition the permit 
to prohibit initiation of surface mining activities in or affecting 
those waters before the permittee obtains all necessary authorizations, 
certifications, and permits under the Clean Water Act.
---------------------------------------------------------------------------

    \131\ 30 U.S.C. 1257(b)(11).
---------------------------------------------------------------------------

Ecological Function
    We proposed to define the ``ecological function'' of a stream as 
the role that the stream plays in dissipating energy and transporting 
water, sediment, organic matter, and nutrients downstream. The proposed 
definition included the ability of the stream ecosystem to retain and 
transform inorganic materials needed for biological processes into 
organic forms and to oxidize organic molecules back into elemental 
forms through respiration and decomposition. It further stated that the 
term includes the role that the stream plays in the life cycles of 
plants, insects, amphibians, reptiles, fish, birds, and mammals that 
either reside in the stream or depend upon it for habitat, 
reproduction, food, water, or protection from predators. Finally, the 
proposed definition stated that the biological condition of a stream 
can be used as one measure to infer the status of the stream's 
ecological function.
    Various commenters found the definition to be overly broad, too 
vague, unclear, or lacking the specificity needed to establish 
standards for the restoration of ecological function. Other commenters 
opposed the definition based on the opinion that the definition relied 
too heavily on research in Appalachia and upon the U.S. Army Corps of 
Engineers guidance \132\ referenced in the preamble to the proposed 
rule. Other commenters expressed concern that we are mandating specific 
metrics that may not be applicable to all regions of the country or 
that may be unreasonably expensive. In response to these comments, and 
others which voiced concern that compliance with this definition is 
critical to the determination of bond release, we conducted further 
analyses to determine how to make this definition more applicable to 
scientifically defensible standards and to be more clearly measurable, 
and thus capable of implementation in the context of bond release. 
Therefore, and for the reasons explained further below, we modified the 
final rule to define ecological function as ``the species richness, 
diversity, and extent of plants, insects, amphibians, reptiles, fish, 
birds, mammals and other organisms for which the stream provides 
habitat, food, water, or shelter. The biological condition of a stream 
is one way to describe its ecological function.'' This definition 
includes some characteristics of what is often referred to in 
scientific literature as ecological structure, which often encompasses 
the abundance and composition of species as a result of

[[Page 93103]]

physical, chemical, and biological forces.\133\ Our definition of 
ecological function includes this abundance and composition of species 
when it refers to the species richness, diversity, and extent of 
plants, insects, amphibians, reptiles, fish, birds, mammals and other 
organisms. We are including this characteristic of ecological structure 
in the final rule definition of ecological function because this rule 
at Sec.  800.42(d)(2) requires restoration of ecological function in 
connection with Phase III bond release, and it is therefore necessary 
to have a definition that indicates the ways ecological function can be 
measured. The traditional bioassessment tools we require to assess and 
monitor perennial streams (and intermittent streams where 
scientifically defensible protocols exist) are appropriate to measure 
ecological function according to our definition. The last sentence of 
the definition of ``ecological function'' specifies that the biological 
condition of a stream is one way of describing its ecological function. 
Therefore, unless the regulatory authority determines additional 
criteria are necessary or appropriate, establishment of a standard 
based on biological condition (and scientifically defensible 
bioassessment protocols as described within the final rule within Sec.  
780.19(c)(6)) would suffice.
---------------------------------------------------------------------------

    \132\ U.S. Army Corps of Engineers, Operational Draft Regional 
Guidebook for the Functional Assessment of High-Gradient Ephemeral 
and Intermittent Headwater Streams in Western West Virginia and 
Eastern Kentucky. ERDC/ELTR-10-11, July 2010, U.S. Army Engineer 
Research and Development Center, Vicksburg, MS., (Jul. 2010).
    \133\ Eric Stokstad, On the Origin of Ecological Structure, 326 
(5949), Science, 33-35.
---------------------------------------------------------------------------

    We designed the final definition to better support the various ways 
in which regulatory authorities throughout the United States will 
actually have to assess and monitor ecological function in the context 
of sampling organisms. Some commenters objected to including factors 
within the definition of ``ecological function'' that have no direct 
role in demonstrating the success of reclamation under SMCRA. For 
example, the commenters noted that the ecological role that a stream 
plays in transporting nutrients downstream, known as nutrient cycling, 
is included within the definition, but is not a criterion used in 
determining eligibility for bond release. Another commenter noted that 
there is no agreement on objective standards for many facets of the 
definition. In response to these comments, the final definition 
eliminates references to physical and chemical processes such as 
dissipating energy; transporting water, sediment, organic matter, and 
nutrients downstream; transforming inorganic materials needed for 
biological processes into organic forms; and oxidizing organic 
molecules back into elemental forms. We also removed the specific 
reference to salamanders because that reference could be considered 
regionally biased and is unnecessary, as salamanders are not part of 
the ecology of all streams.
    Because we are requiring the reestablishment of ecological function 
as a condition for bond release, we have an obligation to both the 
permittees and the SMCRA regulatory authorities to provide enough 
information within the definition to allow for the creation of clear 
standards for purposes of bond release. This necessitates a definition 
that gives clear guidance to regulatory authorities on the meaning of 
ecological function but is still broad enough to allow them to assess 
and monitor organisms that these regulations do not specifically 
address. The final rule provides the regulatory authority with a 
practical definition of ``ecological function'' that will enable them 
to create specific standards for assessing ecological function in their 
various regions. The final definition does not mandate specific 
metrics, although it does specify that the biological condition of a 
stream is one way to describe its ecological function. Under this 
definition, regulatory authorities are free to develop specific 
standards related to various types of organisms or populations 
including the use of indirect ways to measure those organisms or 
populations, such as through leaf litter breakdown.\134\ It also 
recognizes that the presence of various types of populations, such as 
periphyton, fish, soil microbes, and mammals, could provide support to 
a finding that ecological function has been restored. The final 
definition also is designed to allow for future innovations in 
measuring ecological function as they become available.
---------------------------------------------------------------------------

    \134\ Mark O. Gessner & Eric Chauvet, A Case for Using Litter 
Breakdown to Assess Functional Stream Integrity. 12(2) Ecological 
Applications, 498-510 (2002).
    \134\ 30 U.S.C. 1270.
---------------------------------------------------------------------------

    Some commenters opposed the proposed definition because of a fear 
that we (or a third party, pursuant to the citizen suit provisions of 
section 520 of SMCRA) \135\ could initiate action against a state 
regulatory authority for failure to analyze each facet of the 
definition during review of the permit application. While the final 
rule cannot prevent citizen suit litigation, the final rule, when 
followed, provides sufficient flexibility to defend against this type 
of challenge.
---------------------------------------------------------------------------

    \135\ 30 U.S.C. 1270.
---------------------------------------------------------------------------

    Finally, some commenters found our proposed definition to be 
overreaching and academic in nature and noted that methodology for 
measuring ecological function is still a matter of scientific debate. 
While we agree that science will continue to evolve on this topic, we 
disagree that this continued evolution precludes us from defining 
ecological function as we have done in the final rule. The final 
definition of ``ecological function'' merely clarifies our intended 
meaning of the term. It is not a metric in and of itself and standards 
for implementing this definition can be adapted, updated, and adjusted 
as the methodology evolves.
Ephemeral Stream
    As discussed in the preamble to the proposed rule, we proposed to 
redefine ``ephemeral stream'' in a manner that is substantively 
identical to the manner in which the U.S. Army Corps of Engineers 
defines that term in Part F of the 2012 reissuance of the nationwide 
permits under section 404 of the Clean Water Act. See 80 FR 44436, 
44470 (Jul. 27, 2015). Our existing definition classifies streamflow in 
response to the melting of snow and ice as an ephemeral stream, whereas 
the Corps' definition is silent on this point. The preamble to the 
Corps' definition states that the definition appropriately focuses on 
the duration of flow and provides that melting snow should not be 
considered a precipitation event because the development of snowpack 
over the winter season is not a particular event. See 77 FR 10184, 
10262 (Feb. 21, 2012). An industry commenter supported the Corps' 
treatment of snowmelt as appropriate because in areas where there is an 
ephemeral channel, snow depth can cause extended runoff which should 
not be considered in the determination of the channel classification. 
In a similar vein, a regulatory authority noted that small rills 
created by rainfall events and snowmelt in the arid and semi-arid 
landscape should not be considered ephemeral streams; other regulatory 
authority commenters, however, recognized snowmelt is an important 
source of streamflow in ephemeral streams and asserted that it should 
be considered as part of the definition. After reviewing the comments, 
we are revising the definition of ephemeral streams to include those 
conveyances receiving runoff from snowmelt events and that have both a 
bed-and-bank configuration and an ordinary high water mark. Including 
snowmelt events, in addition to rainfall events, as a primary source of 
flow is appropriate, as long as groundwater is not a source of surface 
water flow. The additional requirements that only those conveyances 
with channels that display

[[Page 93104]]

both a bed-and-bank configuration and an ordinary high water mark will 
ensure that rills created by rainfall or snowmelt events would not be 
classified as an ephemeral stream.
    One commenter strongly advised us to make no reference to the term 
``swale'' as a stream. The commenter stated that in the western United 
States the term ``swale'' is commonly used to describe topographic 
features that are often not waters of the United States under the Clean 
Water Act because these features lack an ordinary high water mark. The 
term ``swale'' was not used in the proposed rule or the final rule. To 
minimize any confusion concerning what is or what is not a stream, we 
have revised the stream definitions for ``ephemeral stream'', 
intermittent stream'', and ``perennial stream'' to include a 
requirement that any topographic feature to be considered a stream must 
have both a bed-and-bank and an ordinary high water mark, in addition 
to the other requirements outlined in the specific definitions.
Excess Spoil
    One commenter stated that the proposed definition of ``excess 
spoil'' was awkwardly worded. The commenter explained that the concept 
of ``excess spoil'' is complicated by the goal of minimizing ``excess 
spoil'' to reduce burial of streams. To address this and related 
comments expressing confusion regarding the term, we added to the 
definition of ``excess spoil'' a list of the types of spoil that do not 
constitute ``excess spoil''. This list excludes from the definition of 
``excess spoil'': Spoil required to restore the approximate original 
contour of the mined-out area; spoil used to blend the final 
configuration of the mined-out area with the surrounding terrain in 
non-steep slope areas; spoil placed outside the mined-out area as part 
of a remining operation; spoil placed within the mined-out area in 
accordance with the thick overburden provisions of Sec.  816.105(b)(1) 
of the final rule, except spoil material placed on the mined-out area 
as part of an excess spoil fill with a toe located outside the mined-
out area; and any temporary stockpile of material that will be 
subsequently transported to another location.
    Other commenters stated that the proposed definition might be 
misinterpreted to apply to topsoil or to temporary spoil piles. We 
agree and have revised the final rule to specify that ``excess spoil'' 
means spoil material permanently disposed of within the permit area. We 
further specified that temporary stockpiles of material that will be 
subsequently transported to another location are not included in the 
definition. The addition of the word ``permanent'' and the list 
explaining what is not considered ``excess spoil'' should preclude any 
misinterpretation that excess soil includes spoil or topsoil piles that 
are recognized as temporary in nature.
    Another commenter noted that the proposed definition of ``excess 
spoil'' could, perhaps, inadvertently, designate material placed in an 
existing bench to be classified as ``excess spoil''. This commenter 
explained that spoil material placed on an existing bench above the 
approximate original contour would be subject to the more stringent 
proposed requirements for excess spoil disposal. According to the 
commenter, this would result in an increased burden to both industry 
and regulatory authorities while not providing additional stability or 
stream protection. Interpretation of the commenter's term ``existing 
bench'' could be viewed in two ways. One interpretation is that the 
``existing bench'' is actually a previously mined bench. The other 
interpretation is that the ``existing bench'' is new construction as 
part of an active operation. If the first interpretation of the 
commenter's term is accepted--considering a bench on a previously mined 
area--we note that spoil placement on previously mined benches is 
preferable to construction of ``excess spoil'' on unmined land because 
it is more environmentally sound. In response, we revised the 
definition to exclude spoil material placed outside the mined-out area 
as part of a remining operation as explained within Sec.  816.106 or 
Sec.  817.106 of the final rule. Next, we considered the second 
potential interpretation--that the commenter's term ``existing bench'' 
pertains to construction as part of a current operation. The commenter 
is concerned that the classification of ``excess spoil'' includes spoil 
material placed in a manner that the lower portion of that spoil 
extends onto an open bench, most likely a bench developed along a lower 
coal seam mined, and the spoil material is placed at an elevation that 
is above the original elevation line. For the purposes of responding to 
this comment, we consider the commenter's reference to ``original 
elevation line'' to mean the approved approximate original contour 
surface. In the scenario that the commenter describes, the spoil 
material is placed on a newly created bench that is within the mined 
area and is therefore not considered ``excess spoil''. To further 
address the commenter's concern, we direct the commenter to Sec.  
780.35(b)(3) of the final rule that discusses the minimization and 
disposal of excess spoil. This section of the rule allows the placement 
of what would otherwise be ``excess spoil'' on the mined-out area to 
heights in excess of the approved approximate original contour surface. 
The purpose of Sec.  780.35(b)(3) is to avoid or minimize construction 
of excess spoil fills on undisturbed lands. When considering the 
definition of excess spoil and the provisions of Sec.  780.35(b)(3), 
spoil placed above the approved approximate original contour as 
described in the commenter's scenario is not considered ``excess 
spoil.''
    One commenter stated that the proposed changes to the ``excess 
spoil'' definition are primarily focused on mountaintop removal and 
thick overburden mines and have little relevance outside Appalachia, 
and that they should therefore be limited to Appalachia. We acknowledge 
that ``excess spoil'' is primarily generated in central and southern 
Appalachia where both thick overburden and steep slopes are prevalent. 
However, mines in other regions also generate ``excess spoil''. For 
example, Alaska has a permit that generates excess spoil. Further, by 
definition, excess spoil is only applicable to those areas where it is 
generated, so, by default, if an area does not generate excess spoil 
then the rule provisions that pertain to excess spoil would not apply 
on that location.
    One commenter indicated that the proposed preamble discussion 
implies that box cut spoil placed outside of the pit is not excess 
spoil for non-steep slope mining. We agree, noting that, by definition, 
the creation of box cut spoil on non-steep sloped areas does not 
automatically qualify this material as excess spoil, as this spoil is 
available for placement within the mined area and outside of the mined 
area when used to blend with the surrounding terrain.
Fill
    We received no comments on this proposed definition, which we are 
adopting as proposed.
Form
    Within Sec. Sec.  780.28, 784.28, 800.42, 816.57, and 817.57 of the 
proposed rule, relating to activities in through, or adjacent to 
perennial and intermittent streams, we made reference to the 
restoration of the ``form'' of a stream. Specifically, the proposed 
rule required applicants desiring to mine through or divert a perennial 
or intermittent stream to ``demonstrate that [they could] restore the 
form . . . of the affected stream.

[[Page 93105]]

. . .'' \136\ Additionally, in Sec. Sec.  816.57 and 817.57 \137\ we 
proposed that ``form'' of a stream segment must be restored. We 
explained in the preamble to the proposed rule that:
---------------------------------------------------------------------------

    \136\ 80 FR 44436, 44610 and 44632 (Jul. 27, 2015).
    \137\ 80 FR 44436, 44656 and 44681 (Jul. 27, 2015).

a restored stream channel or a stream-channel diversion need not 
exactly replicate the channel morphology that existed before mining 
. . . it must have a channel morphology comparable to the premining 
form of the affected stream segment in terms of baseline stream 
pattern, profile, and dimensions, including channel slope, 
sinuosity, water depth, bankfull depth, bankfull width, width of the 
flood-prone area, and dominant in-stream substrate particle 
size.\138\
---------------------------------------------------------------------------

    \138\ Id.

    Despite this explanation in the preamble, several commenters 
questioned the meaning of the term ``form'' and how this term related 
to the term ``function'' that was also discussed in the proposed rule. 
Similarly, many commenters questioned the application of and 
relationship to the term ``form'' to the bond release provisions of 
Sec.  800.42(b)(1) of the proposed rule and references to bond release 
within proposed Sec. Sec.  780.28, 784.28, 800.42, 816.57, and 817.57. 
After consideration of these comments, we agree that the use of the 
term ``form'' and the similar term ``hydrological form'' within the 
proposed rule could be confusing. Therefore, we have eliminated any 
reference to ``hydrological form'' and included in Sec.  701.5 a 
definition of the term ``form''. The term ``form'' as used in the 
proposed rule in Sec.  816.57(b)(2)(i) and in the final rule definition 
was drafted based on the criteria established in ``Applied River 
Morphology'' by Rosgen.\139\
---------------------------------------------------------------------------

    \139\ Dave Rosgen, Applied River Morphology, Chapter 2, 
Fundamental Principles of River Systems and Chapter 5, The 
Morphological Description. (1996).
---------------------------------------------------------------------------

    The addition of the definition of ``form'' will also provide 
clarity regarding the requirements for achieving Phase I bond release 
when mining through or permanently diverting a perennial or 
intermittent stream as discussed and explained more thoroughly 
throughout the applicable sections of the final rule preamble 
discussion.
    The term ``form,'' as used in Sec. Sec.  780.28(e)(1)(viii), 
784.28(e)(1)(viii), 800.42(b)(1), 816.57(e), and 817.57(e), means the 
physical characteristics, pattern, profile, and dimensions of a stream 
channel. It is necessary to define the ``form'' of a stream because it 
greatly influences a stream's ``hydrologic function,'' which is also a 
term we are incorporating into the final rule for clarity. As contained 
in the final rule, the term ``form'' includes, but is not limited to, 
the flood-prone area to bankfull width ratio (entrenchment), channel 
width to depth ratio, channel slope, sinuosity, bankfull depth, 
dominant in-stream substrate particle size, and capacity for riffles 
and pools.
    Specific to the definition of ``form,'' entrenchment defines the 
extent of flood prone area relative to channel size and, therefore, the 
areas in which hydrophilic and hydrophytic plant species are most 
adaptable. Channel width-to-depth ratio, in conjunction with channel 
slope, determines the discharge that, over time, transports most 
sediment downstream. Sinuosity directly influences channel slope. The 
dominant in-stream substrate particle size is dependent on discharge at 
bankfull stage and channel slope, and determines the nature of in-
stream habitat and the types of biota that will dominate given 
appropriate water quality and nutrient availability. Additionally, in a 
natural or properly restored stream these components of ``form'' reach 
equilibrium such that they all remain relatively constant, even as the 
dynamic stream exists in a constant state of flux, with meanders 
migrating downstream, and the stream channel at any given location 
moving back and forth across the flood prone area. All of these 
features are integral to restoring ``form'' and ultimately to achieving 
successful stream restoration. Establishment of ``form'' is a 
prerequisite to achieving ``hydrologic function.''
Fugitive Dust
    We proposed to remove this definition because it defines a term 
that we no longer use in our regulations. See 80 FR 44436, 44471 (Jul. 
27, 2015).\140\ We received no comments on the deletion of this term, 
so we are adopting our proposed action of deletion.
---------------------------------------------------------------------------

    \140\ 80 FR 44436 (Jul. 27, 2015).
---------------------------------------------------------------------------

Groundwater
    We proposed to revise the definition of groundwater to provide 
clarity and to replace the words ``ground water'' with the single word 
``groundwater'' throughout our regulations for internal consistency. 
Specifically, our proposed definition was adapted from a publication 
entitled ``The ABCs of Aquifers'' \141\ and Freeze and Cherry's 
``Groundwater.'' \142\ Under the proposed rule, we defined 
``groundwater'' to mean subsurface water located in those portions of 
soils and geologic formations that are fully saturated with water; that 
is, those zones where all the pore spaces and rock fractures are 
completely filled with water. In conformity with plain language 
principles it is important to avoid redundancy. Therefore, in the final 
rule we have removed the phrase, ``i.e., those zones where all the pore 
spaces and rack fractures are completely filled with rock'' as this is 
inherent in the meaning of the phrase ``saturated with water'', 
rendering the former phrase redundant.
---------------------------------------------------------------------------

    \141\ Andrew Stone.''The ABCs of Aquifers,'' (May 30, 2010); 
available at http://www.nationaldriller.com/articles/85773-the-abcs-of-aquifers (last accessed Nov. 8, 2016).
    \142\ Allen Freeze & John A. Cherry, Groundwater, Prentice-Hall, 
Englewood Cliffs, N.J., at pg. 2 (1979).
---------------------------------------------------------------------------

    We received comments from a regulatory authority that suggested 
that we define groundwater as ``any water that is beneath the ground 
surface.'' We do not concur. It would not be appropriate to define 
groundwater in those terms because the definition proposed by the 
commenter is not used by the scientific community. Another commenter 
said that the term ``fully'' was not necessary in our definition. 
Although we agree with the commenter that the term ``fully'' may be 
superfluous in some instances, we retained the definition based upon 
our review of scientific literature including Freeze and Cherry.\143\
---------------------------------------------------------------------------

    \143\ Id. at 2.
---------------------------------------------------------------------------

    Another commenter concerned about restoring perched aquifers within 
the permit area opined that perched aquifers are often difficult to 
differentiate from temporary saturation of the soil horizon as a result 
of precipitation events. We disagree. A perched aquifer has distinct 
properties, such as saturated permeable sediments overlying 
discontinuous impermeable sediments that are not found in soil 
horizons. The geologic information the permittee is required to collect 
as part of the permit application process under final rule Sec.   
780.19(f) will provide the information needed to differentiate a 
perched aquifer from a temporarily saturated soil horizon within the 
permit area.
    Another commenter asserted that the proposed definition for 
``groundwater'' included water in regional and perched aquifers. The 
same commenter was also concerned with the inclusion of ``perched 
aquifers'' in the definition of groundwater. The commenter was 
concerned that mining through a perched aquifer within the permit area 
would no longer be allowed because it would be considered impacts to 
groundwater, constituting material

[[Page 93106]]

damage of the hydrologic balance outside the permit area. We disagree 
with both of the commenter's assertions. First, under our previous 
definition of groundwater,\144\ perched aquifers, local aquifers, and 
regional aquifers are all included in the definition. Therefore, there 
is no change in this respect to the definition of groundwater in the 
final rule; we merely listed specific aquifer types for the sake of 
clarity. In the proposed rule, we inadvertently excluded ``local 
aquifer'' from the list of types of aquifers. This was an oversight; 
therefore, we added ``local aquifer'' to the final rule definition of 
``groundwater''. Secondly, the commenter's assertion that mining 
through a perched aquifer within the permit area would no longer be 
permissible is not accurate. As stated in the preamble,\145\ perched 
aquifers could be mined through within the permit area and need not be 
restored unless restoration is needed to prevent material to the 
hydrologic balance outside the permit area.
---------------------------------------------------------------------------

    \144\ 44 FR 15318 (Mar. 13, 1979).
    \145\ 80 FR 44436, 44471 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Another commenter suggested that we mention in the definition of 
groundwater that the terms ``aquifer'' and ``water table'' are 
sometimes used to mean the same thing in our regulations. The terms do 
not mean the same thing and we have used the terms consistently and 
correctly throughout the preamble and final rule. Aquifer means a zone, 
stratum, or group of strata that can store and transmit water in 
specific quantities for a specific use.\146\ Water table is the level 
(elevation) in the saturated zone at which the hydraulic pressure is 
equal to atmospheric pressure.\147\ We use both of these terms, 
consistently in the final rule and not as implied by the commenter. The 
same commenter also asserted that we should include in the final 
definition the fact that groundwater water levels may vary seasonally. 
Although we agree with the commenter that groundwater levels may vary 
seasonally, it is not necessary to include this fact in the definition 
of groundwater. However, a requirement exists in final rule Sec.  
780.19(b) that the permit application must include information 
sufficient to document seasonal variations in the quality, quantity, 
and usage of groundwater, including all surface discharges within the 
proposed permit area and adjacent area.
---------------------------------------------------------------------------

    \146\ 44 FR 15317 (Mar. 13, 1979).
    \147\ Freeze and Cherry, Groundwater at 39.
---------------------------------------------------------------------------

    We received another comment stating that the definition of 
groundwater did not need to be changed from the existing regulations. 
However, as stated in the preamble to the proposed rule,\148\ these 
revisions are necessary to provide clarity and consistency.
---------------------------------------------------------------------------

    \148\ 80 FR 44436, 44587 (July 27, 2015).
---------------------------------------------------------------------------

Highwall Remnant
    We received no comments on our proposed removal of this definition, 
which we are removing as proposed.
Hydrologic Balance
    We proposed to revise our definition of ``hydrologic balance'' in 
Sec.  701.5 to include more emphasis on water quality by specifying 
that the definition encompasses ``interactions that result in changes 
in the chemical composition or physical characteristics of groundwater 
and surface water, which may in turn affect the biological condition of 
streams and other water bodies.'' Several commenters either questioned 
the rationale for inclusion of the latter phrase or erroneously 
interpreted it as incorporating biological condition into the 
definition. The commenters opposed the proposed addition, asserting 
that the definition of ``hydrologic balance'' should focus on water 
quality and quantity and not the aquatic community.
    We never intended for biological condition to be part of the 
definition of ``hydrologic balance'' which we agree should be limited 
to water quality, quantity, movement, and storage. Therefore, the 
definition that we are adopting as part of this final rule does not 
include the phrase ``which may in turn affect the biological condition 
of streams and other water bodies.'' However, that phrase is an 
accurate statement in that interactions that result in changes in the 
chemical composition or physical characteristics of groundwater and 
surface water may indeed affect the biological condition of streams and 
other water bodies, which is one of the reasons that the impact of 
mining and reclamation on the hydrologic balance is a primary focus of 
SMCRA and the permitting process.
    One commenter stated that the definition should be limited to the 
flow, quantity, and physical form of water. According to the commenter, 
the definition should not include any mention of water quality. We 
disagree. SMCRA quite clearly includes water quality as a component of 
the hydrologic balance. For example, section 515(b)(10) \149\ requires 
that surface coal mining operations minimize disturbances to the 
prevailing hydrologic balance at the mine site and in associated 
offsite areas by various methods, including avoiding acid or other 
toxic mine drainage and preventing, to the extent possible using the 
best technology currently available, additional contributions of 
suspended solids to streamflow. Both of these methods address water 
quality issues.
---------------------------------------------------------------------------

    \149\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

Hydrologic Function
    Within Sec. Sec.  780.28, 784.28, 800.42, 816.57, and 817.57 of the 
proposed rule, relating to activities in through, or adjacent to 
perennial or intermittent streams, we made reference to the restoration 
of the ``form'' of a stream. Specifically, the proposed rule required 
applicants desiring to mine through or divert a perennial or 
intermittent stream to ``demonstrate that [they could] restore the form 
. . . of the affected stream . . . .'' \150\ Additionally, in 
Sec. Sec.  816.57 and 817.57,\151\ we proposed that ``form'' of a 
stream segment must be restored. We explained in the preamble to the 
proposed rule that:
---------------------------------------------------------------------------

    \150\ 80 FR 44436, 44610 and 44632 (Jul. 27, 2015).
    \151\ 80 FR 44436, 44656 and 44681 (Jul. 27, 2015).

a restored stream channel or a stream-channel diversion need not 
exactly replicate the channel morphology that existed before mining. 
. . it must have a channel morphology comparable to the premining 
form of the affected stream segment in terms of baseline stream 
pattern, profile, and dimensions, including channel slope, 
sinuosity, water depth, bankfull depth, bankfull width of the flood-
prone area, and dominant in-stream substrate.\152\
---------------------------------------------------------------------------

    \152\ Id.

Despite this explanation in the preamble, several commenters questioned 
the meaning of the term ``form'' and how this term related to the term 
``function'' that was also discussed in the proposed rule. Similarly, 
many commenters questioned the application of and relationship to the 
term ``form'' to the bond release provisions of Sec.  800.42(b)(1) of 
the proposed rule and references to bond release within Sec. Sec.  
780.28, 784.28, 800.42, 816.57, and 817.57. After consideration of 
these comments, we agree that the use of the term ``form'' and the 
similar term ``hydrological form'' within the proposed rule could be 
confusing. Therefore, we have eliminated any reference to 
``hydrological form'' and have included a definition of the term 
``hydrologic function'' in Sec.  701.5. The term ``hydrologic 
function,'' is a term we are incorporating into the final rule for 
clarity.
    The addition of the definition of ``hydrologic function'' will also 
provide clarity regarding the requirements for achieving Phase II bond 
release when mining through or permanently

[[Page 93107]]

diverting a segment of a perennial or intermittent stream as discussed 
and explained more thoroughly throughout the applicable sections of the 
final rule preamble discussion.
    The term ``hydrologic function'', as used in Sec. Sec.  780.28(e), 
784.28(e), 800.42(b)(2), 816.57(f), and 817.57(f), refers to the role 
that streams play in transport of water and flow of water within the 
stream channel and floodplain. As contained in the final rule, the term 
``hydrologic function'' includes total flow volume, seasonal variations 
in streamflow and base flow, and provisions of the water needed to 
maintain floodplains and wetlands associated with the stream. 
Establishment of ``hydrologic function'' occurs after achieving 
``form.'' The ``form'' of the stream has a significant impact on 
hydrologic function.
Intermittent Stream
    As discussed in the preamble to the proposed rule,\153\ we proposed 
to redefine ``intermittent stream'' in a manner that is substantively 
identical to the manner in which the U.S. Army Corps of Engineers 
defines that term in Part F of the 2012 reissuance of the nationwide 
permits \154\ under section 404 of the Clean Water Act.\155\ 
Additionally, we proposed to remove paragraph (a) of our former 
definition of ``intermittent stream.'' See 80 FR 44436, 44472 (Jul. 27, 
2015). We received differing opinions on this invitation for comment. 
One regulatory authority and other commenters supported the proposed 
deletion while others urged the retention of paragraph (a), which 
provided that an intermittent stream means ``a stream or reach of a 
stream that drains a watershed of at least one square mile. . . .'' 
This former definition functioned to automatically designate any stream 
or reach of stream that drains a watershed of at least one square mile 
as an intermittent stream. We agree with the commenters supporting the 
deletion of paragraph (a) because the former definition is inconsistent 
with generally accepted stream classification systems because it is 
based on watershed size rather than streambed characteristics, 
duration, and source of streamflow. Therefore, we are not including 
paragraph (a) as it existed in the former regulation within the 
definition of ``intermittent stream'' in the final rule.
---------------------------------------------------------------------------

    \153\ 80 FR 44436, 44472 (Jul. 27, 2015).
    \154\ 77 FR 10184,10288 (Feb. 21, 2012).
    \155\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    We received comments requesting that we add runoff from snowmelt 
events to the definition. For the same reasons explained in the 
preamble to the ``ephemeral stream'' definition, we are adding 
reference to ``snowmelt'' within the definition of ``intermittent 
stream.''
    One commenter suggested the definition should be tied to the number 
of months in each year that snowmelt normally contributes to the 
baseflow in the stream. This comment was not accepted because the 
``intermittent stream'' definition recognizes that snowmelt provides 
supplemental flow and that supplemental flow may only occur during 
certain times of the year.
    Another commenter pointed out that the proposed definition of 
``intermittent stream'' did not explicitly mention the relationship the 
stream has to the water table. The commenter thought this was 
problematic because we included the relationship in the proposed 
definition of ``perennial stream''. For the purposes of consistency and 
clarity we added a statement in the final rule definition that 
describes the relationship between the water table and an intermittent 
stream.
    One commenter opined that the definition of ``intermittent stream'' 
should address whether a stream's function is impaired by change in 
flow and potential change in frequency, duration, magnitude, rate of 
change, and timing of flows. We did not accept this comment because 
functional impairment from water quantity changes is more appropriately 
addressed by the definition of ``material damage to the hydrologic 
balance outside the permit area'' found at Sec.  701.5, and explained 
in this preamble.
    Although we specified within the proposed definition that an 
``intermittent stream'' means ``a stream or part of a stream that has 
flowing water during certain times of the year when groundwater 
provides water for streamflow'' several commenters questioned the 
extent to which groundwater should be considered in the definition of 
``intermittent stream.'' Some commenters requested that the definition 
of ``intermittent stream'' specify that the groundwater contribution is 
from an aquifer and not a result of man-made features such as upstream 
reservoirs, groundwater pumped to the surface, or irrigation return 
flows. In addition, several commenters recommended the definition 
require that there be a contribution from groundwater and not strictly 
surface water runoff. Another commenter requested clarification that 
the mere occurrence of snowmelt in spring would not automatically make 
a stream ``intermittent'' rather than ``ephemeral.'' In consideration 
of these comments, we clarified the definition of ``intermittent 
stream.'' Within the final rule the definition of ``intermittent 
stream'' now includes the clarifying statement: ``[t]he water table is 
located above the streambed for only part of the year, which means that 
intermittent streams may not have flowing water during dry periods.'' 
Additionally, we agree with commenters that snowmelt should be 
considered a supplemental source of water for streamflow. Therefore, we 
have incorporated ``snowmelt'' into the final rule definition.
    A commenter asserted that based on the proposed definition of 
``intermittent stream'' and the prohibition of the placement of 
sedimentation control structures in a perennial or intermittent stream, 
coal mining would be severely and negatively impacted in the western 
region. The commenter implies that because intermittent streams with 
nominally, low-yield base flow from spring discharges are common in the 
western region, the proposed definition would change the stream 
classification. We disagree. Neither the proposed definition nor the 
definition within the final rule has any effect on the steam 
designation because both definitions require contribution of 
groundwater flow to the stream during parts of the year. In addition, 
the commenter opined that there should be an allowance for sediment 
control systems for other mining areas in relationship to intermittent 
streams similar to the exceptions allowed for excess spoil fills and 
steep-slope areas as provided in proposed paragraph (c) of Sec.  816.57 
and discussed within the preamble to the proposed rule.\156\ The 
exceptions outlined in the proposed rule are incorporated into the 
final rule because in some steep-slope areas the only place to install 
a sedimentation control structure is in the stream. This is discussed 
in more detail in the preamble discussion of paragraph (h) of Sec.  
816.57.
---------------------------------------------------------------------------

    \156\ 80 FR 44436, 44554-44555 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Similar to the explanations within the definitions of ``ephemeral'' 
and ``perennial'' streams and to address commenters' confusion 
concerning what is or what is not a stream, we have revised the 
definition of ``intermittent stream'' to clarify that an ``intermittent 
stream'' only includes those conveyances with channels that display 
both a bed-and-bank configuration and an ordinary high water mark. The 
addition is consistent with the preamble discussions of the ``ephemeral 
stream'' and ``perennial stream'' definitions.
    One commenter opined that linking the SMCRA definitions of 
ephemeral

[[Page 93108]]

and intermittent streams to the definitions of those terms in the U.S. 
Army Corps of Engineers 2012 Nationwide Permit may result in our 
definitions becoming obsolete when the nationwide permits are re-
evaluated. After considering the comments, we are not adopting the U.S. 
Army Corps of Engineers' definition verbatim.
Invasive Species
    Some commenters requested the final rule include definitions of 
``invasive species,'' ``non-invasive species,'' and ``native species.'' 
Other commenters requested that we allow the regulatory authority to 
have latitude to define these terms. In response, we are adding two 
definitions to the final rule. We are defining ``invasive species'' and 
``native species'' in the final rule. In the preamble to the proposed 
rule at Sec.  780.12(g) \157\ we referenced Executive Order 13112,\158\ 
which focused on ``invasive species.'' This 1999 Executive Order 
included definitions of both ``invasive species'' and ``native 
species.'' On December 5, 2016, the 1999 Executive Order was amended by 
Executive Order 13751.\159\ Executive Order 13751, entitled 
``Safeguarding the Nation from the Impacts of Invasive Species,'' 
includes a slightly modified definition of invasive species as compared 
to the 1999 Executive Order. Because the 1999 Executive Order language 
more closely tracks the language of SMCRA related to protection of the 
human health and the environment, with one minor change for grammatical 
improvements, we are incorporating the definitions from the 1999 
Executive Order into the final rule:
---------------------------------------------------------------------------

    \157\ 80 FR 44436, 44491 (Jul. 27, 2015).
    \158\ Exec. Order No. 13112 of February 3, 1999, 64 FR 6184 
(Feb. 8, 1999).
    \159\ Executive Order 13751 was published in the Federal 
Register on December 8, 2016, and can be found at 81 FR 88609.
---------------------------------------------------------------------------

    In response to the commenters that suggested that we allow the 
regulatory authority latitude to define these terms, we do not agree. 
It is important to have uniform definitions of these terms, and these 
definitions, adapted from the 1999 and 2016 Executive Orders, 
accomplish that objective. These final definitions of ``invasive 
species'' and ``native species'' satisfy the purposes of SMCRA, are 
appropriate, will provide sufficient guidance to regulatory 
authorities, and are generally consistent with the applicable Executive 
Orders. For example, although our definition of ``invasive species'' 
contains the term ``alien species'' and the definition in Executive 
Order 13751 does not, our use of that term is consistent with that 
Executive Order's new definition of ``alien species.'' In response to 
the request to define ``non-invasive species,'' we decline because 
those species that are not defined as invasive species will be 
classified as non-invasive species.
Land Use
    One commenter stated that we should use or recognize international 
definitions of ``land use'' such as the definitions from the 
Organisation for Economic Co-operation and Development because these 
definitions are more practical when recognizing economic and cultural 
activities associated with human use of the land. The commenter further 
stated that we should explain the meaning of ``support facilities'' and 
``integral part of the use'' included within the definition of ``land 
use.'' The existing definition of ``land use'' is sufficient. Moreover, 
as these terms were included in the previous version of the definition 
of ``land use'' and not otherwise proposed for change, we see no need 
to further explain their meaning or to use other definitions as 
suggested by the commenter. Our reason for changing this definition to 
include the sentence, ``[e]ach land use category includes land used for 
facilities that support the land use'' is to ensure the definition is 
aligned with our corresponding changes to Sec. Sec.  780.24 and 784.24. 
The alterations of this section allow for modification of postmining 
land uses from premining without requiring approval of higher and 
better use if the land that existed before mining was already capable 
of supporting that use in its existing condition. We did not receive 
any comments on this aspect of definition change.
Material Damage
    This definition discusses ``material damage'' in the context of the 
subsidence control provisions of Sec. Sec.  784.30 and 817.121, which 
we have clarified in this final rule. Several commenters raised 
concerns about the effects of subsidence on the land and waters 
overlying the underground mining activities. Commenters also raised 
concerns about the applicability of the definition of ``material 
damage'' (in the context of underground mine subsidence) to hydrologic 
features and recommended that subsidence damage to surface waters be 
more specifically regulated. Many of these concerns are discussed in 
Part IV.K. of the preamble which discusses material damage from 
subsidence and in the preamble discussion to our definition of material 
damage to the hydrologic balance outside the permit areas in Sec.  
701.5 of this preamble. Other comments are discussed in the sections of 
the preamble that address the changes we have made to our subsidence 
control plan provisions at Sec.  784.30 (previously Sec.  784.20), or 
that explain the measures to prevent, control, or correct damage 
resulting from subsidence at Sec.  817.121. Notably, as explained more 
fully in our preamble discussion at Part IV.K., we are revising the 
definition of ``material damage'' in the context of the subsidence 
control provisions of Sec. Sec.  784.30 and 817.121 to specifically 
include wetlands, streams, and bodies of water. Adding these features 
to the definition clarifies that not only subsidence damage to surface 
lands but also subsidence damage resulting in functional impairment of 
wetlands, streams, and bodies of water, must be repaired pursuant to 
the subsidence repair provisions of Sec.  817.121(c). As previously 
explained, we have required operators to address impacts and correct 
subsidence damages to land and water features since 1995 when we 
published the final rule addressing the subsidence provisions of the 
Energy Policy Act of 1992. Thus, by adding ``wetlands, streams, and 
bodies of water'' to the definition of ``material damage'' in the 
subsidence context, we are merely reinforcing our longstanding 
position.
    Some commenters requested that the final rule specifically address 
material damage to the hydrologic balance outside the permit area from 
longwall mining that adversely impacts the productivity of prime 
farmland. Longwall mining is a method of underground mining that 
results in planned subsidence. The commenters suggested revisions to 
several provisions of our regulations, including the definition of 
``material damage'' in the context of subsidence in Sec.  701.5, our 
subsidence control regulations in Sec.  784.30 (previously Sec.  
784.20), and our prime farmland restoration regulations in Sec.  
785.17.
    We decline to adopt the recommended revisions. We do not interpret 
SMCRA as authorizing protection of prime farmland from the impacts of 
subsidence from longwall mining operations beyond the degree of 
protection afforded by Sec.  817.121(c) of our final rule. Section 
516(b)(1) of SMCRA \160\ does not require that operations using mining 
technology that requires planned subsidence in a predictable and 
controlled manner (primarily longwall mining) adopt measures to prevent 
subsidence from causing material damage to the extent technologically 
and economically

[[Page 93109]]

feasible. However, our regulations at Sec.  817.121(c) provide that, to 
the extent technologically and economically feasible, the permittee of 
any type of underground mine, including longwall mines, must correct 
any material damage resulting from subsidence caused to surface lands, 
wetlands, streams, or water bodies by restoring the land and water 
features to a condition capable of maintaining the value and reasonably 
foreseeable uses that the land was capable of supporting before 
subsidence damage occurred. Our definition of ``material damage'' in 
final Sec.  701.5 in the context of subsidence includes any functional 
impairment of surface lands, features, including wetlands, streams, and 
bodies of water, structures or facilities, and any physical change that 
has a significant adverse impact on the affected land's capability to 
support any current or reasonably foreseeable uses or that causes a 
significant loss in production or income. Therefore, under final Sec.  
817.121(c), to the extent technologically and economically feasible, 
the permittee must repair any surface lands, including prime farmland, 
whenever subsidence resulting from underground mining causes 
significant loss in production or income or has a significant adverse 
impact on the capability of the land to support the uses that it 
supported before subsidence damage occurred. In addition, we added 
Sec.  817.121(c)(2), which requires that the permittee implement fish 
and wildlife enhancement measures, as approved by the regulatory 
authority in a permit revision, to offset subsidence-related material 
damage to wetlands or a perennial or intermittent stream when 
correction of that damage is technologically and economically 
infeasible.
---------------------------------------------------------------------------

    \160\ 30 U.S.C. 1266(b)(1).
---------------------------------------------------------------------------

Material Damage to the Hydrologic Balance Outside the Permit Area
    We received numerous general and specific comments on various 
aspects of our proposed definition for ``material damage to the 
hydrologic balance outside the permit area.'' Several commenters 
requested that we refrain from finalizing a definition and continue to 
allow regulatory authorities the flexibility to define the term for 
their jurisdictions in order to best reflect local conditions. These 
commenters often focused on the diversity of the country and objected 
to the perceived ``one-size-fits-all'' approach of the proposed 
definition. Some commenters noted that some states, such as West 
Virginia and Montana, already have definitions of the term. Other 
states define ``material damage to the hydrologic balance outside the 
permit area'' on a case-by-case basis. Similarly, some commenters 
suggested that, instead of a uniform federal definition of ``material 
damage to the hydrologic balance outside the permit area'', we could 
better address the concerns that we raised in the preamble to the 
proposed rule by providing technical support to the regulatory 
authorities so that they could be equipped to define ``material damage 
to the hydrologic balance outside the permit area'' in their own 
states.
    We agree with these commenters in part--states do need the 
flexibility to define ``material damage to the hydrologic balance 
outside the permit area'' to account for local and regional differences 
in geology, hydrology, mining, and reclamation. However, a federal 
definition is necessary to provide guidance and clarity to the 
regulatory authorities as they define the term for their own 
jurisdictions. As discussed in more detail in the preamble to the 
proposed rule, our previous rules did not contain a definition of 
``material damage to the hydrologic balance outside the permit area,'' 
and, in the more than 30 years since SMCRA's enactment, very few states 
have adopted a definition.\161\ As a result of the lack of a 
definition, what constitutes ``material damage to the hydrologic 
balance outside the permit area'' varies greatly. This has led to 
differences in enforcement across the country. These differences have 
also resulted in coal field water quality data that shows significant 
coal mining impacts in many streams across the country.\162\ For these 
reasons, we are adopting a definition of ``material damage to the 
hydrologic balance outside the permit area'' that provides minimum 
nationwide standards while also providing each regulatory authority 
with the flexibility to tailor the definition to meet the needs of its 
jurisdiction while ensuring minimal standards are met.
---------------------------------------------------------------------------

    \161\ 80 FR 44436, 44473-44476 (Jul. 27, 2015).
    \162\ See, e.g., 80 FR at 44440-44441 (Jul. 27, 2015).
---------------------------------------------------------------------------

    To help clarify the regulation and to comply with the requirements 
of the Office of the Federal Register, we have revised and re-
designated proposed paragraphs (a) and (b) of the definition into three 
paragraphs (1), (2), and (3).
    The basic definition now provides that ``material damage to the 
hydrologic balance outside the permit area'' is an adverse impact, from 
surface coal mining and reclamation operations, underground mining 
activities, or subsidence associated with underground mining 
activities, on the quality or quantity of surface water or groundwater, 
or on the biological condition of a perennial or intermittent stream.'' 
What constitutes an adverse impact for determining material damage to 
the hydrologic balance outside the permit area is now based on 
consideration of certain types of reasonably anticipated or actual 
effects of the operation, such as effects that (1) cause or contribute 
to a violation of applicable state or tribal water quality standards or 
a state or federal water quality standard established for a surface 
water outside the permit area under section 303(c) of the Clean Water 
Act, 33 U.S.C. 1313(c), or, for a surface water for which no water 
quality standard has been established, effects that cause or contribute 
to non-attainment of any premining use of surface water outside the 
permit area; (2) preclude a premining use of groundwater outside the 
permit area; or (3) result in a violation of the Endangered Species Act 
of 1973, 16 U.S.C. 1531 et seq.
    The combination of the basic definition and procedures for 
considering the types of effects that constitute material damage to the 
hydrologic balance outside the permit area in paragraphs (1) through 
(3) is substantively similar to the proposed definition, with several 
exceptions. First, we deleted the references in the proposed definition 
to reasonably foreseeable uses based on comments from the public, state 
regulatory authorities, and other federal agencies. Among other things, 
the term ``reasonably foreseeable uses'' is too speculative for 
purposes of this definition. Second, we also deleted references to 
``existing use,'' because, as some commenters noted, it could create 
confusion because the regulations implementing the Clean Water Act 
define that term in the context of that law. To avoid any possible 
confusion, as some commenters suggested, we replaced ``existing'' with 
``premining'' in paragraph (2) and added a definition of that term in 
Sec.  701.5. That definition provides that ``premining'' refers to the 
conditions and features that exist on a site at the time of application 
for a permit to conduct surface coal mining operations.
    This revised definition also removes the proposed definition's 
direct reference to designated uses. We made this change for two 
reasons. First, the concept of water quality standards under the Clean 
Water Act, includes, but is ultimately broader than using just 
designated use. Designated uses are part of the water quality 
standards, along with water quality criteria, antidegradation 
provisions, and other

[[Page 93110]]

policies each respective state develops to help implement the Clean 
Water Act. Consideration of all of these components of water quality 
standards provides a more complete evaluation of what constitutes 
material damage to the hydrologic balance outside the permit area.
    Second, we wanted to emphasize the relationship between the 
requirements of SMCRA and Clean Water Act as it relates to surface 
water affected by coal mining operations. Thus, the final definition of 
material damage to the hydrologic balance outside the permit area 
better reconciles the requirement of SMCRA to perform a cumulative 
hydrologic impact assessment with the jurisdiction given to the Clean 
Water Act authority for the Nation's waters. It also highlights the 
need for coordination between the regulatory authority and the 
appropriate Clean Water Act authorities to develop the CHIA and to make 
the appropriate findings that the operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area.
    In order to effectively implement this definition, the regulatory 
authority and appropriate Clean Water Act authorities should coordinate 
during the permit application process consistent with the requirements 
of the final rule. After permit issuance, they should also jointly 
investigate potential water quality violations related to coal mining 
operations, as appropriate. At both of these stages, this coordination 
focuses on exchanging project specific information to provide the 
regulatory authority with information to better assess the effects of 
the operation on the cumulative impact area. This process should focus 
on the pertinent water quality standards in force for the specific site 
and any applicable state or tribal polices governing low flow, mixing 
zones, and/or any variances in play to ensure an appropriate evaluation 
of what constitutes material damage to the hydrologic balance outside 
the permit area, where it should be measured, and what material damage 
and evaluation thresholds are applicable for each situation. This 
process should enhance regulatory certainty for permit applicants and 
operators because it will minimize or eliminate conflicts between the 
agencies concerning impacts to receiving water bodies and identify 
measures that should be adopted to comply with the requirements of both 
statutes.
    A commenter expressed concern that the proposed definition was 
impossible to interpret and evaluate in regard to compliance with 
SMCRA. We disagree; interpretation and compliance with this definition 
is possible for several reasons. For the first time since SMCRA was 
enacted, a federal definition of material damage to the hydrologic 
balance outside the permit area describes levels of unacceptable 
changes to the hydrologic balance that result from a SMCRA operation. 
These unacceptable impacts include precluding the attainment of Clean 
Water Act water quality standards, not maintaining premining use for 
groundwater, and effects that result in a violation of the Endangered 
Species Act. As previously stated, post-SMCRA mining has impaired 
receiving streams, which is an unacceptable effect of current mining 
practices under the Act. If the concept of material damage to the 
hydrologic balance outside the permit area had been more clearly 
understood or defined, these impacts should have been prevented.
    Commenters have generally cited two situations in which it will be 
impossible for regulatory authorities to apply the proposed definition. 
First, they claim that a one-time or temporary occurrence should not 
constitute material damage to the hydrologic balance outside the permit 
area. As discussed in more detail below, we generally agree, as long as 
the temporary occurrence does not affect the stream to the extent that, 
for example, the stream fails to satisfy applicable water quality 
standards or violate the SMCRA material damage thresholds set for the 
site. However, over the years, regulatory authorities, including us, 
have witnessed single or temporary events of large magnitude that have 
risen to the level of ``material damage to the hydrologic balance 
outside the permit area''. These events clearly violated the Clean 
Water Act water quality standards of the streams affected. Second, 
these commenters contend that the definition does not allow natural and 
non-mining conditions to be factored into whether a stream maintains 
its applicable water quality standards. As discussed below, we 
disagree. The definition allows natural, non-mining, and mining-caused 
stream variations as long as the stream maintains its applicable water 
quality standards. The definition simply provides a common framework 
from which to assess impacts to receiving bodies of water. Latitude 
exists within this definition for regulatory authorities to tailor the 
specific meaning of ``material damage to the hydrologic balance outside 
the permit area'' to suit their particular state and situations 
encountered at specific mines. In addition, if the designated use is 
inaccurate or unattainable for natural or other reasons, the Clean 
Water Act authority has the flexibility under the Clean Water Act and 
the implementing regulations at 40 CFR part 131 to revise the 
designated use to more accurately reflect the highest attainable 
designated use.
    A commenter also asserted that the definition, as proposed would 
result in denial of all future permit applications. We disagree. As 
previously stated, material damage to the hydrologic balance outside 
the permit area only occurs when a mining operation causes a stream not 
to satisfy its applicable Clean Water Act water quality standards or an 
aquifer to not meet its premining use. Variations in water quality, 
quantity, biological condition, and/or aquatic habitat can occur as 
long as the stream satisfies is applicable Clean Water Act water 
quality standards or an aquifer meets its premining use. A mining 
operation can have an adverse effect on a receiving stream as long as 
the stream still satisfies its applicable water quality standards, an 
aquifer meets its premining use as determined by the SMCRA regulatory 
authority, and no violations of the Endangered Species Act are 
occurring. For example, a reduction in a stream's index of biotic 
integrity score would not constitute ``material damage to the 
hydrologic balance outside the permit area'' if the stream is 
satisfying its applicable Clean Water Act water quality standards and 
not in violation of the Endangered Species Act. Similarly, a reduction 
in an aquifer's water quality parameter concentrations is not 
``material damage to the hydrologic balance outside the permit area'' 
as long as the aquifer is meeting its premining use and it is not 
preventing an adjacent receiving stream from satisfying its applicable 
Clean Water Act water quality standards or if no designated use is 
defined, its premining use outside the permit area. The concept of 
Clean Water Act water quality standards has always existed in both the 
Clean Water Act and has been relevant in SMCRA analyses since the 
inception of both statutes, see, e.g., section 508(a)(13) of SMCRA. 
This approach taken in our definition, consequently, is not a new one; 
the definition simply codifies a system that has existed for more than 
thirty years and under which many permits have been issued.
    A commenter objected to our statement in the proposed rule that 
because the Clean Water Act does not apply to groundwater, the 
regulatory authority would need to use ``best judgment'' to establish 
``material damage to the hydrologic balance'' criteria to protect 
existing and

[[Page 93111]]

foreseeable uses of groundwater. The commenter asserted that the use of 
term ``best judgment'' was not sufficiently clear and would negatively 
impact the operator and, thus, it should be eliminated. First, ``best 
judgment'' does not appear in the regulation. Instead, it is in 
recognition of the many decisions the regulatory authority must make 
about a specific coal mining operation. The regulatory authority makes 
these decisions using their ``best judgment'' based on the information 
and data gleaned during the decision making process. This is wholly 
appropriate, and we are not making any changes to the final rule in 
response to this comment.
    Several commenters implied that material damage to the hydrologic 
balance outside the permit area should arise any time a partial 
degradation to surface water or groundwater occurred. Specifically, 
they suggested that as part of the definition, we should require that 
material damage to the hydrologic balance outside the permit area 
include impacts that ``partially or significantly degrade'' or 
``partially, completely eliminate, or significantly degrade'' any 
designated use under sections 101(a) or 303(c) of the Clean Water Act 
or any existing or reasonably foreseeable use of surface water or 
groundwater outside the permit area. We disagree that material damage 
to the hydrologic balance outside the permit area occurs every time a 
stream or groundwater is partially degraded, or in some circumstances 
significantly degraded, because the terms ``partially'' and 
``significantly'' are subjective, do not convey a sense of magnitude, 
and are open to interpretation and abuse. Both the Clean Water Act and 
SMCRA allow some variation in water quality. For instance, the Clean 
Water Act recognizes that in some situations water quality may vary 
while still being protective of the designated use. However, if the 
ambient quality is on the verge of the ambient water quality criterion 
level, then any amount of degradation could impair the designated use. 
In addition, section 515(b)(10) of SMCRA \163\ requires operations to 
minimize material damage to the hydrologic balance inside the permit 
boundary and section 510(b)(3) of SMCRA requires that the proposed 
operation be ``designed to prevent material damage to hydrologic 
balance outside [the] permit area.'' \164\ SMCRA, therefore, allows 
damage to the hydrologic balance as long as that damage does not rise 
to the level of material damage outside the permit area. Therefore, 
adoption of a standard that does not allow any variation in water 
quality or quantity within a designated use category is not consistent 
with SMCRA.
---------------------------------------------------------------------------

    \163\ 30 U.S.C. 1265(b)(10).
    \164\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Some commenters expressed concern that the definition as proposed 
would prohibit any adverse impacts at all and would, for example, 
consider temporary or minor impacts to be ``material damage to the 
hydrologic balance outside the permit area.'' As explained above, we 
disagree that the definition prohibits ``any impact'' outside the 
permit area. The concept of water quality standards has inherent 
flexibility within the standards that allow temporary and minor impacts 
outside the permit area as long as the magnitude of those impacts does 
not violate applicable Clean Water Act water quality standards for the 
surface water under review. This change, when read in context of the 
entire definition, supports the intent of SMCRA, which allows some 
change in baseline conditions provided that those changes are not of 
such magnitude that a stream is incapable of attaining its applicable 
Clean Water Act water quality standards.\165\ For example, if the 
impact from a mining operation causes a measurable decrease in a 
stream's index of biotic integrity value, but the stream is still 
attaining its water quality standards under the Clean Water Act, this 
would not be considered material damage to the hydrologic balance 
outside the permit area under the definition we are finalizing today. 
Similarly, temporary impacts would be allowed unless those impacts 
violate applicable Clean Water Act water quality standards or results 
in a violation of the Endangered Species Act. Some temporary impacts--
such as dewatering a stream for all but a de minimis amount of time or 
discharges containing parameters of concern in sufficient quantities--
may, however, rise to the level of material damage to the hydrologic 
balance outside the permit area if those impacts violate applicable 
Clean Water Act water quality standards. Therefore, incorporating the 
concept of the Clean Water Act water quality standards into this 
definition as a benchmark to determine material damage to the 
hydrologic balance outside the permit area accommodates the seasonal 
and natural fluctuation inherent in natural systems and allows some 
level of impact to the hydrologic balance consistent with SMCRA while 
also providing a point of reference for determining when the level of 
impact becomes detrimental to the hydrologic balance outside the permit 
area.
---------------------------------------------------------------------------

    \165\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    In the underground mining context, one commenter opined that the 
rule should specifically mention that a regulatory authority cannot 
approve a permit application unless it determines that the proposed 
operation is not predicted to cause subsidence that would result in the 
dewatering of any perennial or intermittent stream. Our final rule 
defines material damage to the hydrologic balance outside the permit 
area to encompass an adverse impact from subsidence that would dewater 
or impair an intermittent or perennial stream to the extent that 
applicable Clean Water Act water quality standards are or would not be 
met or, if no designated use is assigned, the actual premining use 
would be precluded, or the Endangered Species Act violated. However, as 
discussed above, material damage to the hydrologic balance outside the 
permit area will not occur if the surface water or groundwater can be 
repaired so that it still attains applicable Clean Water Act water 
quality standards, or, if no designated use exists, its actual 
premining use. As discussed in more depth above, in Part IV.K., as long 
as these regulations are followed, subsidence damage from an 
underground mining operation that does not rise to the level of 
material damage to the hydrologic balance outside the permit area may 
be allowed.
    Similarly, several commenters suggested a single exceedance of a 
water quality standard should not be considered material damage to the 
hydrologic balance outside the permit area as it may not impact the 
stream hydrology to the degree that the designated uses are impaired. 
We agree with this comment. Similar to what we said in our discussion 
of temporary impacts, under our definition, a simple exceedance of a 
water quality standard would not necessarily constitute material damage 
to the hydrologic balance outside the permit area. If stream metrics 
indicate the stream is maintaining its applicable Clean Water Act water 
quality standards after exceedance events, then material damage to the 
hydrologic balance outside the permit area has not occurred. However, 
there could be situations where the SMCRA regulatory authority 
determines a single exceedance does constitute material damage to the 
hydrologic balance outside the permit area: if the stream metrics 
indicate that the exceedance would violate applicable Clean Water Act 
water quality standards or one of the other criteria listed in 
paragraphs (2) through (3). As we explained above, the

[[Page 93112]]

SMCRA regulatory authority should consult with the Clean Water Act 
authority to make this determination.
    It is also possible to cause material damage to the hydrologic 
balance outside the permit area while satisfying all effluent 
limitations established in the NPDES permit. SMCRA permits require in-
stream monitoring for parameters that are not limited or required to be 
monitored by the corresponding NPDES permits. Therefore, required 
monitoring under the SMCRA permit may indicate that a parameter that 
was not expected to have the potential to exceed a numeric or narrative 
water quality criteria in the receiving stream but does in fact exceed 
the established criteria. This situation could also occur if numerous 
individually compliant discharges cumulatively create a situation that 
violates a stream's applicable Clean Water Act water quality standards 
or would cause a violation of the Endangered Species Act.
    One commenter asserted that the definition of material damage to 
the hydrologic balance outside the permit area should apply to all 
streams and stream segments, and that the assessment of material damage 
to the hydrologic balance outside the permit area must not be 
restricted to only those streams for which the U.S. Army Corps of 
Engineers, during the Clean Water Act section 404 process, makes 
jurisdictional determinations. We agree that material damage to the 
hydrologic balance outside the permit area is not restricted to only 
those streams for which there is a Clean Water Act jurisdictional 
determination issued by the U.S. Army Corps of Engineers.
    In addition, final rule Sec.  780.19(c)(6)(i)(C) simplifies the 
process of delineating stream transitions by requiring that the SMCRA 
regulatory authority default to any jurisdictional stream 
determinations made by the U.S. Army Corps of Engineers to delineate 
stream transitions. If the U.S. Army Corps of Engineers has not 
determined the location of a transition point, the regulatory authority 
must set one. There are a number of available resources that may be 
helpful including the state Clean Water Act authority. The regulatory 
authority is encouraged to coordinate with the U.S. Army Corps of 
Engineers and other partners in identification of stream transition 
points.
    Several commenters suggested that linking the definition of 
material damage to the hydrologic balance outside the permit area with 
designated use could be problematic in situations where designated uses 
have not been identified or are not instructive, not accurate, and/or 
not attainable. The Clean Water Act provides a variety of policies to 
allow sufficient time to attain the designated uses, such as water 
quality standards variances, permit compliance schedules, or designated 
use changes. Several commenters noted that a use attainability analysis 
may be required to establish or change a designated use and that the 
use attainability analysis may be time-consuming and expensive. In such 
cases, the regional U.S. Environmental Protection Agency offices and 
relevant state Clean Water Act agencies can provide support and may 
suggest other approaches appropriate for the situation. As noted above, 
we are retaining the link to attainment of designated uses in the 
broader water quality standards approach; however, we are also making a 
clarifying change to address some of these concerns. As proposed, the 
definition accounts for situations where no designated use has been 
identified for a particular stream. In those situations, the proposed 
rule would have required that the ``existing use'' be maintained in a 
receiving stream. In the final rule, to prevent confusion with the 
Clean Water Act definition of existing uses and prevent abuses related 
to impaired streams, we have made revisions to further clarify this 
concept. Our intent is to maintain the actual use of surface water 
prior to the proposed mining operation. We are also concerned that the 
baseline standard for material damage to the hydrologic balance outside 
the permit area and/or stream restoration standards for an impaired 
stream, with or without a designated use, may be mistakenly considered 
as an existing, impaired condition rather than its actual or potential 
designated use. To remove any confusion and add clarity, we removed the 
phrase ``existing use'' from the definition and added ``actual use'' to 
signify uses that existed prior to submission of a coal mine permit 
application. Thus, paragraph (1) now specifically states that if no 
designated use has been established under the Clean Water Act, a mining 
operation cannot preclude attainment of any actual premining use of 
surface water outside the permit area.
    One commenter suggested we only consider ``existing uses'' and that 
we define ``existing uses'' as any uses in existence as of August 3, 
1977, which is the date SMCRA was enacted. We have not adopted this 
suggestion because we removed the phrase ``existing uses'' from the 
definition as it relates to surface waters and replaced it with ``any 
premining use.'' We did not replace it with ``any actual use as of the 
enactment of SMCRA'' because that change could raise potential 
conflicts with the Clean Water Act if the stream's designated uses have 
changed since the enactment of SMCRA.
    Another commenter suggested we revise the regulation to provide a 
hierarchy of stream use categories that would provide consistency in 
determining material damage to the hydrologic balance outside the 
permit area (i.e., first designated uses, then existing uses, and 
finally reasonably foreseeable uses). We agree that the regulation 
needs to specify the priority of stream use categories and have made 
changes as a result. As discussed above, we added clarifying language 
to paragraph (1) that specifies that adverse impacts that violate 
applicable Clean Water Act water quality standards and, if no water 
quality standards have been established, then the adverse impacts may 
not preclude any actual premining use. The proposed rule would have 
also required operators to ensure that ``reasonably foreseeable uses'' 
of surface water were maintained. However, many commenters raised 
concerns about the difficulty in interpreting or assigning reasonably 
foreseeable use to streams. We agree and have removed the language 
concerning reasonably foreseeable uses. The final rule no longer 
includes the term ``reasonably foreseeable uses'' in contexts other 
than protection of reasonably foreseeable surface land uses from the 
adverse impacts of subsidence. As explained in other areas of the 
preamble, we removed the term from the definition of material damage to 
the hydrologic balance outside the permit area for two reasons. First, 
the term appears in SMCRA only in section 516(b)(1), which requires 
that operators of underground mines adopt subsidence control measures 
to, among other things, maintain the value and reasonably foreseeable 
use of surface lands. Sections 717(b) and 720(a)(2) of SMCRA separately 
protect certain water uses. Second, numerous commenters opposed 
inclusion of the term ``reasonably foreseeable uses'' on the basis that 
it is too subjective, difficult to determine, and open to widely 
varying interpretations, which could result in inconsistent application 
throughout the coalfields.
    Proposed paragraph (a) defined material damage to the hydrologic 
balance outside the permit area as any adverse impact that would 
preclude any reasonably foreseeable use of surface water or groundwater 
outside the permit area. Several commenters objected to the use of the 
term ``reasonably foreseeable uses''. Several commenters suggested 
using alternate terms such as

[[Page 93113]]

``protected use,'' ``existing uses'', and ``future probable use''. As 
explained above, we deleted references to ``reasonably foreseeable 
uses'' in paragraph (1) of the final definition and elsewhere in our 
rules. The term was confusing and could have led to possibly 
conflicting interpretations.
    Another commenter suggested that linking material damage to the 
hydrologic balance outside the permit area with the concept of 
reasonably foreseeable uses will create conflicts between the Clean 
Water Act and SMCRA agencies about what is a foreseeable use. For the 
reasons explained above, we did not accept this comment.
    A commenter expressed concern about how the Clean Water Act concept 
of anti-degradation would relate to variability in a stream designated 
use caused by SMCRA mining impacts. We clarified the definition by 
directly linking to the concept of Clean Water Act water quality 
standards, which includes provisions for impaired streams and 
antidegradation. To establish material damage in situations involving 
impaired streams, the SMCRA regulatory authority should consult with 
the Clean Water Act authority to ensure a thorough understanding of the 
water quality standards applicable to the stream and specific situation 
under review.
    In the proposed rule, groundwater was included with paragraph (a). 
One commenter specifically suggested we define material damage to the 
hydrologic balance outside the permit area so that it applies to 
groundwater. Although groundwater was included in the proposed 
definition, we have decided to include paragraph (2) in the final rule 
to specifically state that operators must maintain premining uses 
associated with groundwater. This change clarifies that material damage 
to the hydrologic balance outside the permit area protects groundwater 
resources that may not have uses assigned to them. In particular, this 
paragraph states that ``material damage to the hydrologic balance 
outside the permit area'' would include those adverse impacts that 
preclude attainment of any premining use of groundwater outside the 
permit area. In addition, paragraphs (1) and (2) of the definition 
would preclude the discharge of contaminated groundwater into a 
receiving stream if that discharge caused the stream to not satisfy its 
applicable Clean Water Act water quality standards. Thus, groundwater 
protections are included in this final definition.
    A commenter suggested we revise the definition to ensure it 
adequately protects listed species or designated critical habitats. The 
commenter further elaborated that the definition should not be linked 
to the Endangered Species Act's jeopardy analysis. We agree that the 
definition of material damage to the hydrologic balance outside the 
permit area should adequately protect listed species and designated 
critical habitat, whether aquatic or terrestrial. Paragraph (b) of the 
proposed rule was included to prevent impacts to threatened or 
endangered species or adverse effects on designated critical habitat 
outside the permit area in violation of the Endangered Species Act of 
1973, 16 U.S.C. 1531 et seq. As proposed, it did not specifically link 
this definition with a jeopardy analysis under the Endangered Species 
Act, and we are not doing so in the final rule. In the final rule, this 
paragraph has been redesignated as (3) and simplified to bring 
attention to the prohibitions found in the Endangered Species Act of 
1973, which also includes the unauthorized ``taking'' of listed species 
(a criminal prohibition). This provision, in conjunction with the other 
provisions of this final rule related to fish and wildlife resources 
discussed in the preamble at Sec. Sec.  780.16(b) and 783.20, should 
provide adequate protections for threatened and endangered species, 
aquatic and/or terrestrial, in accordance with the Endangered Species 
Act.
    One commenter, citing section 702,\166\ of SMCRA, requested that 
the definition of material damage to the hydrologic balance outside the 
permit area be expanded to encompass any violations of other applicable 
statutes or regulations in addition to those stated in the proposed 
rule text. The term ``material damage to the hydrologic balance outside 
the permit area'' is a term unique to SMCRA and there is no need to 
refer to other statutes or regulations within this definition. Section 
702 of SMCRA \167\ will continue to fully apply independent of this 
definition. We singled out the Endangered Species Act in paragraph (3) 
because the statutory language is unique in its prohibitions against 
jeopardizing the continued existence of species and adverse changes to 
their designated critical habitat (if in the context of Section 7 of 
the Endangered Species Act), and its prohibition against unauthorized 
``taking'' of listed species generally. In summary, we agree that SMCRA 
operations cannot materially damage streams outside the permit area 
under any circumstance; other statutes notwithstanding.
---------------------------------------------------------------------------

    \166\ Id.
    \167\ Id.
---------------------------------------------------------------------------

    Many commenters raised concerns with a statement in the preamble to 
the proposed rule that stated: A ``SMCRA regulatory authority may need 
to establish numerical material damage criteria for parameters of 
concern for which there are no numerical water quality standards or 
water quality criteria under the Clean Water Act.'' \168\ For support, 
these commenters also cited section 702 of SMCRA \169\ because, to 
their understanding of the regulation, the development of numeric 
standards to determine material damage to the hydrologic balance 
outside the permit area would create a conflict with the Clean Water 
Act. In response, we note that nothing in the definition requires the 
creation of numeric standards. In the proposed rule, the requirement 
for numeric standards was included in Sec.  773.15(e)(3), which stated 
that a regulatory authority needed to include a permit condition 
specifying criteria for material damage to the hydrologic balance 
outside the permit area on a site-specific basis, expressed in 
numerical terms for each parameter of concern. As discussed in the 
preamble to final Sec.  773.15(e)(3), we are not adopting the proposed 
requirement for numeric criteria unless numeric water quality criteria 
exist.
---------------------------------------------------------------------------

    \168\ 80 FR 44436, 44475 (Jul. 27, 2015).
    \169\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    One commenter also suggested that inclusion of the term biological 
condition and ecological function into this definition is a duplication 
of the Clean Water Act sections 401 and 404 processes. We disagree. 
First, the term ``ecological function'' is not found in the definition 
of material damage to the hydrologic balance outside the permit area 
nor is it a required element to be assessed when setting criteria to 
asses if material damage to the hydrologic balance outside the permit 
has occurred (section 780.21). Second, to the extent that any Clean 
Water Act section 401 or 404 processes also apply, the final rule 
allows any information obtained in these processes to be used to inform 
and support analyses conducted under SMCRA. It is vital to link water 
quality changes with aquatic impacts that may result from SMCRA sites 
in order to determine whether material damage to the hydrologic balance 
outside the permit area has been prevented. This linkage is necessary 
to evaluate the overall impact of the mining operation on the receiving 
stream and its aquatic community and to assess unacceptable changes in 
either designated use, actual, or premining use when a designated use

[[Page 93114]]

is not assigned. For these reasons we are retaining the term biological 
condition within the definition of material damage to the hydrologic 
balance.
    Many commenters speculated as to how coal mining impacts to 
receiving streams would be assessed in light of the proposed 
definition. Several commenters questioned the use of the phrase 
``adverse impacts'' and were concerned that the phrase could be 
interpreted to mean any impact to a receiving stream. We disagree with 
this interpretation. The definition of ``material damage to the 
hydrologic balance outside the permit area'' needs to be read, 
understood, and applied in its entirety. As discussed above, an adverse 
impact does not necessarily constitute material damage to the 
hydrologic balance outside the permit area. The definition includes 
only those adverse impacts that, either individually or cumulatively, 
would preclude a receiving stream from attaining its applicable Clean 
Water Act water quality standards, or if no designated use exists, the 
premining use.
    Several commenters proposed their own definitions of material 
damage to the hydrologic balance outside the permit area. Most of these 
suggested definitions tied material damage to the hydrologic balance 
outside the permit area to permanent impacts after mitigation attempts 
have failed. We decline to adopt the term ``permanent'' because impacts 
can materially damage the hydrologic balance outside the permit area 
yet not be considered permanent. There are many examples over the last 
30 years of impacts that were not permanent but that clearly rose to 
the level of material damage to the hydrologic balance outside the 
permit area. Some examples include the Martin County, Kentucky slurry 
breach, impacts to Tug Fork River that killed all aquatic life in 
Coldwater Fork and Wolf Creeks, and a mine release of very high 
conductivity water released from the Blacksville No. 2 Mine into 
Dunkard Fork in Greene County, Pennsylvania that created a golden algae 
bloom that caused a massive fish kill in 40 miles of stream. These 
events have all been mitigated and would not be considered permanent 
even though they clearly constituted material damage to the hydrologic 
balance outside the permit area which should have been prevented. Thus, 
singular, nonpermanent events can rise to the magnitude of material 
damage to the hydrologic balance outside the permit area.
    A commenter recommended that the rule specify that a SMCRA 
regulatory authority should not consider noncompliant discharges other 
than those that rise to the level of precluding designated or existing 
uses because those noncompliant discharges, according to the commenter, 
remain solely within the purview of the Clean Water Act authority. We 
disagree. SMCRA gives jurisdictional authority to its regulatory 
authorities over aspects of water quality resulting from coal mining 
\170\ and requires the evaluation of water quality from SMCRA sites and 
modification of the SMCRA permit any time a SMCRA site is causing, or 
leading to, material damage to the hydrologic balance outside the 
permit area.
---------------------------------------------------------------------------

    \170\ See, e.g., 30 U.S.C. 1260(b)(3) and 1265(b)(10).
---------------------------------------------------------------------------

    Several commenters expressed concern that extraneous, non-mining 
related impacts, including natural conditions, would be included in 
assessment of material damage to the hydrologic balance outside the 
permit area and urged us to limit the scope of assessment to only those 
impacts directly attributable to the surface coal mining and 
reclamation operation. We agree with the commenters that many surface 
coal mining and reclamation operations are located in areas with 
multiple land uses and that water quality can be impacted from these 
other non-coal mining sources and natural conditions. The regulations 
require permit applicants to acquire water samples to help assess the 
baseline water quality in all streams overlying and adjacent to the 
proposed operation and for groundwater. Impacts to the water from other 
existing upstream land uses, including non-coal mining sources, will be 
reflected in the baseline data. The baseline data will form the basis 
of the cumulative hydrologic impact assessment developed by the 
regulatory authority. That assessment evaluates the capacity of the 
receiving stream to assimilate the expected water quality emanating 
from the proposed mining operation, and from all other mining-related 
activities, known and anticipated, within an area known as the 
cumulative impact area. The cumulative hydrologic impact assessment, 
therefore, provides the regulatory authority with sufficient 
information to assess whether the proposed mining operation, in 
combination with other existing and reasonably anticipated mining 
activities, will materially damage the hydrologic balance outside the 
permit area. For example, if a stream's assimilative capacity for a 
certain parameter is already consumed by other activities or if the 
proposed operation would exacerbate natural conditions to the point 
where the stream might fail to attain its applicable Clean Water Act 
water quality standards, the regulatory authority would either need to 
modify the permit so that material damage to the hydrologic balance 
outside the permit area does not occur or disapprove the permit.
    Several commenters suggested mining operations should not be 
required to improve a stream's biological condition beyond the 
premining condition. We do not agree with this assertion for previously 
impaired streams. We agree that if a stream is attaining its applicable 
Clean Water Act water quality standards, there is no requirement under 
SMCRA for the operation to implement measures, for example, to attain 
higher designated use categories. That is not the case for mining 
operations affecting previously degraded streams. Section 515(b)(24) of 
SMCRA specifically requires the enhancement of fish, wildlife, and 
related environmental values where practicable and section 508(a)(9) of 
SMCRA \171\ requires steps be taken to comply with all air and water 
quality laws. Returning a degraded stream to a degraded state neither 
enhances fish, wildlife, and related environmental values nor takes 
steps to comply with the Clean Water Act's goal of maintaining a 
stream's designated use or instituting measures to help it attain its 
water quality standards.\172\ Thus, the Clean Water Act regulatory 
authorities must develop water quality standards that help streams 
achieve their designated uses. Allowing a mining operation to return a 
stream to a degraded state without some form of enhancement would, 
thus, conflict with the Clean Water Act section 303(d). As a result, in 
instances where a stream is not meeting its designated use, it is vital 
that the regulatory authority work closely with the Clean Water Act 
authority to determine the level of impairment, evaluate the potential 
impacts from the proposed operation, and thoroughly assess the 
anticipated effects of the proposed operation over the anticipated 
life-of-the-mine. This coordination is critical because the state Clean 
Water Act authorities must implement measures to ensure that all 
streams achieve their assigned designated use(s) in conformity with 
section 303(d) of the Clean Water Act.\173\
---------------------------------------------------------------------------

    \171\ 30 U.S.C. 1258(a)(9).
    \172\ 33 U.S.C. 1251 et seq.
    \173\ 33 U.S.C. 1313(d).
---------------------------------------------------------------------------

    One commenter also suggested the rule should grant discretion to 
the regulatory authority when applying bioassessment standards for 
material damage to the hydrologic balance

[[Page 93115]]

evaluation. We agree, and as discussed in more detail in the preamble 
discussion of material damage to the hydrologic balance outside the 
permit area in the proposed rule, we stated that the regulatory 
authorities would have discretion to set criteria, including 
bioassessment criteria, to determine, on a case-by-case basis, whether 
there has been material damage to the hydrologic balance outside the 
permit area.\174\ We are adopting that approach today. Thus, the 
definition contained in this section provides regulatory authorities 
with the framework to set their own criteria. This framework consists 
of factors that the regulatory authority must consider in developing 
and applying their unique bioassessment criteria for material damage to 
the hydrologic balance outside the permit area.
---------------------------------------------------------------------------

    \174\ 80 FR 44436, 44475 (Jul. 27, 2015).
---------------------------------------------------------------------------

    One commenter indicated that the definition of material damage to 
the hydrologic balance outside the permit area has been expanded to 
include quality and quantity impacts to surface water and ground water 
but also includes adverse impacts to the biological condition of a 
stream. They further stated that the definition expanded the hydrologic 
impact review to the adjacent area and/or shadow area of underground 
mines. In addition, the commenter suggested that inclusion of 
subsidence damage within the definition of material damage to the 
hydrologic balance outside the permit area contradicted the Energy 
Policy Act.\175\ We disagree with the commenter's classification of an 
expanded area of review. In accordance with sections 508(a)(13)(A) and 
(C) and 515(b)(10) of SMCRA, we have always considered adjacent areas 
and shadow areas to be part of the evaluation of material damage to the 
hydrologic balance outside the permit area. Specifically, these areas 
are clearly contemplated by section 508(a)(13)(A) and (C) of SMCRA, 
which requires measures to be taken to ensure protection of quality and 
quantity of surface and ground waters both on- and off-site from 
adverse effects of mining and reclamation.\176\ Similarly, section 
515(b)(10) requires the operation to ``minimize the disturbances to the 
prevailing hydrologic balance at the mine-site and in associated 
offsite areas and to the quality and quantity of water in surface and 
ground water systems both during and after surface coal mining 
operations . . . .'' \177\ These statutory provisions that specifically 
concern impacts to waters outside of the permitted area are applicable 
to both surface and underground mining operations. Although this has 
been our longstanding position and is clearly mandated by SMCRA, the 
definition of material damage to the hydrologic balance outside the 
permit area that we are finalizing today removes any of the ambiguity 
that may have resulted in this comment.
---------------------------------------------------------------------------

    \175\ 42 U.S.C. 6201 et seq.
    \176\ 30 U.S.C. 1258(a)(13)(A) and (C) (emphasis added).
    \177\ 30 U.S.C. 1265(b)(10) (emphasis added).
---------------------------------------------------------------------------

    Moreover, our definition does not conflict with the Energy Policy 
Act. Section 2504 of Energy Policy Act requires operators to repair or 
compensate for subsidence impacts they cause to surface structures and 
requires replacement of water supplies adversely impacted by coal mine 
subsidence. The water replacement provisions of the Energy Policy Act 
are incorporated into our regulations at section 817.40 and are still 
in effect. These regulations provide additional protections for 
individual well owners. A change to an individual well that would 
trigger the replacement provision of section 817.40 would not 
necessarily constitute material damage to the hydrologic balance 
outside the permit area unless that damage was the result of wholesale 
adverse changes to an aquifer that the regulatory authority determines 
rose to the level of material damage to the hydrologic balance outside 
the permit area.
    The commenter further suggested that inclusion of the term 
biological condition in the introductory text of the definition would 
result in a ``massive'' amount of new information for the regulatory 
agency to review. We agree that new information will be received on 
biological condition, but this information is not anticipated to be 
``massive'' or otherwise overburden the regulatory authority. 
Experience in the Tennessee federal program indicates collection and 
submission of permit specific biological condition information does not 
substantially increase the volume of information submitted for a coal 
mine permit application. Biological condition is a critical component 
of determining the impact from the mining operation not only on water 
quality and quantity of the receiving stream but on impact to the 
aquatic environment. This information needs to be evaluated to ensure 
mining and reclamation operations do not cause material damage to the 
hydrologic balance outside the permit area.
Mountaintop Removal Mining
    Some commenters expressed concern that the proposed definition of 
``mountaintop removal mining'' conflicts with section 515(c)(2) of 
SMCRA \178\ and is a significant change from the existing regulations 
that could cause confusion for regulatory authorities and the regulated 
community. Specifically, one commenter alleged that the change from 
``removing substantially all overburden off the bench'' to ``removing 
substantially all overburden above the coal seam'' and the 
clarification that the overburden be used to create the postmining 
contours would be a source of misunderstanding. For the reasons 
discussed below, we disagree and are adopting the definition as 
proposed.
---------------------------------------------------------------------------

    \178\ 30 U.S.C. 1265(c)(2).
---------------------------------------------------------------------------

    As we explained in the preamble to the proposed rule, we added a 
definition of ``mountaintop removal mining'' to Sec.  701.5 by 
consolidating the descriptions of mountaintop removal mining operations 
in previous Sec. Sec.  785.14(b) and 824.11(a)(2) and (3).\179\ 
Previous Sec.  824.11(a)(2) is nearly identical to section 515(c)(2) 
\180\ of SMCRA, which explains that approximate original contour does 
not need to be achieved where an operation will mine ``an entire coal 
seam or seams running through the upper fraction of a mountain, ridge, 
or hill (except as provided in subsection (c)(4)(A) hereof) by removing 
all of the overburden and creating a level plateau or a gently rolling 
contour with no highwalls remaining.'' Id. Previous Sec.  785.14(b) 
uses the same language except that it qualifies the amount of 
overburden with the word ``substantially'' and clarifies that the 
overburden is removed ``off the bench.'' In our definition of 
``mountaintop removal mining,'' we have retained the word 
``substantially'' and clarified that ``substantially all of the 
overburden above the coal seam'' must be removed and used to create 
approved postmining contours. Overburden is commonly understood to be 
the strata overlying the coal seam. If one ``removes all of the 
overburden'' then they are removing the material ``above the coal 
seam'' to uncover and then extract the entire coal seam. Therefore, we 
view this change as merely a clarification. Furthermore, the addition 
of the phrase ``and using that overburden'' actually makes the 
definition more consistent with SMCRA as it fully implements section 
515(c)(4)(E),\181\ which requires that ``spoil [] be placed on the 
mountaintop bench as is necessary to achieve the planned postmining 
land use.'' Therefore, contrary to the assertions of

[[Page 93116]]

the commenters, adding ``above the coal seam'' and ``using that 
material to create'' to the definition of mountaintop removal mining 
does not create a conflict with the language of SMCRA and does not 
create confusion. No change has been made to the proposed definition in 
our final rule.
---------------------------------------------------------------------------

    \179\ 80 FR 44436, 44476 (Jul. 27, 2015).
    \180\ 30 U.S.C. 1265(c)(2).
    \181\ 30 U.S.C. 1265(c)(4)(E).
---------------------------------------------------------------------------

Native Species
    As discussed within the explanation of the definition of ``invasive 
species'', some commenters requested that the final rule include 
definitions of ``invasive species,'' ``non-invasive species,'' and 
``native species.'' Other commenters requested that we allow the 
regulatory authority to have latitude to define these terms. In 
response, we are adding two definitions to the final rule. We are 
defining ``invasive species'' and ``native species'' in the final rule. 
In the preamble to the proposed rule at section 780.12(g) \182\ we 
referenced Executive Order 13112 \183\ that focused on ``invasive 
species.'' As discussed above with respect to ``invasive species,'' the 
1999 Executive Order includes definitions of both ``invasive species'' 
and ``native species.'' We are incorporating a definition of ``native 
species'' into the final rule that does not conflict with either the 
1999 or 2016 Executive Orders.
---------------------------------------------------------------------------

    \182\ 80 FR 44436, 44491 (Jul. 27, 2015).
    \183\ Exec. Order No. 13112 of February 3, 1999, 64 FR 6184 
(Feb. 8, 1999).
---------------------------------------------------------------------------

    In response to the commenters that suggested that we allow the 
regulatory authority latitude to define the terms ``invasive species'' 
and ``native species'', we do not agree because it is important to have 
uniform definitions of these terms and the definitions, adapted from 
the 1999 and 2016 Executive Orders in a manner that focuses on the 
specific goals of SMCRA, are appropriate.
Occupied Residential Dwelling and Structures Related Thereto
    We received no comments on our proposed revisions to this 
definition, which we are adopting as proposed.
Ordinary High Water Mark
    One commenter stated that we should use the ordinary high water 
mark (OHWM) instead of the bankfull elevation when measuring 
distances from streambanks because the OHWM is both more common for 
that purpose and more easily determined. We adopted the commenter's 
suggestion, which meant that we needed a definition of OHWM. To 
promote consistency between SMCRA and the Clean Water Act, we 
settled on the definition in regulation 33 CFR 328.3(e).

    We made only one change--replacing ``shore'' with ``bank'' in our 
definition because ``bank'' is more commonly understood and used in the 
context of the streams affected by coal mining.
    Measuring from the OHWM as opposed to the bankfull elevation, which 
is the point at which the streambanks can hold no more water before 
spilling flow onto the floodplain, could result in a slightly narrower 
buffer zone or streamside vegetated corridor, but, in most cases, the 
difference would be minimal.
Parameters of Concern
    We proposed to add the definition of ``parameters of concern'' 
because we used the term extensively in the proposed rule. Under the 
proposed definition, ``parameters of concern'' consists of those 
chemical or physical characteristics or properties of surface water or 
groundwater that could be altered by mining activities in a manner that 
would adversely impact the quality of surface water or groundwater or 
the biological condition of a stream. We continue to use the definition 
of ``parameters of concern'' within the final rule and adopt it as 
proposed, with one exception. Within the definition, we have replaced 
``biological condition of a stream'' with ``including adverse impacts 
on aquatic life.''
    One commenter expressed concern that the definition of ``biological 
condition'' coupled with the definition of ``parameters of concern'' 
would impose new and burdensome requirements. The definition of 
``parameters of concern'' was used to clarify that these parameters may 
be of concern because of potential impacts on aquatic life. Including 
``biological condition'' in the context of this definition does not, in 
and of itself, require additional biological data beyond the 
requirements expressly defined elsewhere in the regulation; however, we 
agree that the use of term did not provide sufficient clarity and have 
replaced ``biological condition of a stream'' with ``including adverse 
impacts on aquatic life''.
    We also received a variety of comments on the definition of 
``parameters of concern.'' A few commenters asked us to delete this 
proposed definition altogether. These commenters alleged that the 
definition conflicts with the Clean Water Act and exceeds our 
authority. We disagree. The Clean Water Act established a national goal 
to restore or maintain the chemical, physical, and biological integrity 
of the Nation's water.\184\ The final rule definition, like the 
proposed rule definition, complements these Clean Water Act 
requirements. None of the elements of this final rule affect a mine 
operator's responsibility to comply with effluent limitations or other 
requirements of the Clean Water Act. The requirements of the Clean 
Water Act have independent force and effect regardless of the terms of 
the SMCRA permit. The independent effect of the Clean Water Act is 
recognized in section 702(a) of SMCRA, which provides that--
---------------------------------------------------------------------------

    \184\ 33 U.S.C. 1251(a).

    Nothing in this Act shall be construed as superseding, amending, 
modifying, or repealing the * * * [t]he Federal Water Pollution 
Control Act [Clean Water Act] [citations omitted], the State laws 
enacted pursuant thereto, or other Federal laws relating to the 
preservation of water quality.\185\
---------------------------------------------------------------------------

    \185\ 30 U.S.C. 1292(a).

    Another commenter requested the definition be revised to state that 
the ``parameters of concern'' will be determined by the approved 
regulatory authority. While we agree that the regulatory authority 
should identify local ``parameters of concern,'' if applicable, and 
include them in the required baseline monitoring data, we are not 
modifying the definition. Instead, we have clarified Sec. Sec.  780.19, 
784.19, and 780.23 of the rule to state that groundwater and surface 
water quality descriptions include all ``parameters of concern'' as 
identified by the regulatory authority. With these clarifications, any 
``parameters of concern'' identified by the regulatory authority will 
more accurately reflect those constituents that could potentially 
impact water resources during coal mining and reclamation activities in 
their specific region of the country.
    One commenter requested we adopt the term ``pollutants'' instead of 
``parameters of concern.'' We disagree because the term ``pollutant'' 
is narrower than ``parameters of concern.'' We intend the term 
``parameters of concern'' to cover all of the chemical or physical 
characteristics that are currently present in surface water or 
groundwater, or that could be released as a result of coal mining and 
reclamation activities or from the natural environment during such 
activities, and that could be present in sufficient concentrations to 
result in material damage to the hydrologic balance outside the permit 
area. In addition, using ``parameters of concern'' instead of 
``pollutant'' in our regulations avoids confusion with the term 
``pollutant'' as defined in section 502(6) of the Clean Water Act.
    In consideration of these comments, we are not making any 
additional modifications to the final rule. As

[[Page 93117]]

discussed above, the final rule will be adopted as proposed with the 
exception of the removal of the reference to ``biological condition of 
a stream.''
Perennial Stream
    As discussed in the preamble to the proposed rule,\186\ we proposed 
to redefine ``perennial stream'' in a manner that is substantively 
identical to the manner in which the U.S. Army Corps of Engineers 
defines that term in Part F of the 2012 nationwide permits \187\ under 
section 404 of the Clean Water Act.\188\ We are adopting the proposed 
definition with a few changes. First, in response to commenters 
requesting that we include runoff from snowmelt to our definition, 
``runoff from rainfall events and snowmelt'' is now included within the 
definition of ``perennial stream.'' This is consistent with the 
ephemeral and intermittent stream definitions and discussed in more 
detail within those sections of this preamble. Second, we are adding 
the statement that ``perennial streams include only those conveyances 
with channels that display both a bed-and-bank configuration and an 
ordinary high water mark.'' This addition is also consistent with the 
ephemeral and intermittent stream definitions discussed herein.
---------------------------------------------------------------------------

    \186\ 80 FR 44436, 44476-44477 (Jul. 27, 2015).
    \187\ 77 FR 10184, 10288 (Feb. 21, 2012).
    \188\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    In our revised definition, ``perennial stream'' means a stream or 
part of a stream that has flowing water year-round during a typical 
year. One commenter stated that the term ``typical year'' is too vague. 
Another commenter requested clarification on the length of time meant 
by ``most of the year.'' Our final definition of ``perennial stream'' 
is substantively identical to the corresponding U.S. Army Corps of 
Engineers' definition. Both definitions recognize that perennial 
streams or segments of those streams may cease flowing during periods 
of sustained, below-normal precipitation. Thus, a cessation in flow 
during those periods would not result in the reclassification of the 
stream as intermittent. To the extent a SMCRA regulatory authority 
needs additional clarification of the terms ``typical year'' and ``most 
of the year,'' we recommend that they coordinate with the Clean Water 
Act authority.
    One commenter asserted that the regulations pertaining to a 
``perennial stream'' should allow regulatory authorities to adopt and 
apply regulations that could better protect perennial streams. 
Similarly, another commenter requested the addition of language 
recognizing that state protections for all stream types may exceed the 
U.S. Army Corps of Engineers' requirements and compel regulatory 
authorities to adopt more stringent protections within the permit 
conditions. States have the ability to adopt more stringent rules when 
they are revising their regulations governing surface coal mines and 
underground mines to satisfy the requirements set forth in the final 
rule. States can adopt more stringent rules that afford greater 
protections to ephemeral, intermittent, and perennial streams. Because 
states already have the authority under section 505(b) of SMCRA \189\ 
to provide for more stringent land use and environmental controls and 
regulations of surface coal mining and reclamation operations than the 
provisions of SMCRA, it is not necessary to add additional language to 
the final rule.
---------------------------------------------------------------------------

    \189\ 30 U.S.C. 1255.
---------------------------------------------------------------------------

Premining
    In response to requests from several commenters, we are adding a 
definition of ``premining'' to Sec.  701.5 of the final rule. The 
definition provides that ``premining'' refers to the conditions and 
features that exist on a site at the time of application for a permit 
to conduct surface coal mining operations. Some of our regulations 
refer to conditions or features in existence before any mining occurred 
on the site, not the conditions or features in existence at the time of 
preparation of the permit application. In those instances, we typically 
use the terms ``prior to any mining'' or ``before any mining'' instead 
of ``premining.''
Reclamation
    As we explained in the preamble, we proposed to revise the 
definition of ``reclamation'' to fully implement SMCRA by expanding the 
definition to include the entire disturbed area, to encompass all 
actions taken to restore land and water to the conditions required by 
SMCRA, and to clarify that the reclaimed land must be capable of 
supporting the uses it was capable of supporting prior to any mining 
or, subject to certain restrictions, higher or better uses.\190\
---------------------------------------------------------------------------

    \190\ 80 FR 44436, 44477 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several commenters requested explanation of the terms ``capable 
of'' and ``higher or better'' as referenced in the proposed definition. 
We did not propose to revise the definition of ``higher or better 
uses'' in this rulemaking. Section 701.5 defines this term as meaning 
the ``postmining land uses that have a higher economic value or 
nonmonetary benefit to the landowner to the community than the 
premining land uses.'' The phrase ``capable of'' was added to the 
definition of ``reclamation'' because the previous definition could 
have been misconstrued to require the implementation of the postmining 
land use, exceeding section 515(b)(2)'s requirement that the disturbed 
land be restored ``to a condition capable of supporting the uses which 
it was capable of supporting prior to any mining, or higher or better 
uses. . . .'' \191\ Requiring reclamation of disturbed areas to a 
condition in which the site is ``capable of'' supporting the uses it 
was ``capable of'' supporting before any mining is the functional 
equivalent of requiring that disturbed areas be ``able to'' support the 
same land uses the land was ``able to'' support prior to mining. This 
is consistent with the common meaning of the word and nothing in SMCRA 
indicates that ``capable of'' should be given anything other than the 
ordinary meaning of the word. For example, the Merriam-Webster 
Dictionary defines ``capable'' as meaning ``able to achieve efficiently 
whatever one has to do; competent'' and ``having the ability, fitness, 
or quality necessary to do or achieve a specified thing.'' \192\ 
Although previous Sec.   816.133 may have been misconstrued to only 
require that a site be reclaimed for one postmining land use, the 
revised definition of ``reclamation'' clarifies that the land itself 
must be reclaimed to support the same variety of land uses it was able 
to support prior to any mining. Where the land was capable of 
supporting a wide variety of uses, the reclaimed land must also be able 
to support those land uses. For example, even if the proposed 
postmining land use for a formerly forested area is grassland, and 
grassland is established after mining, the soil must be restored to a 
condition that could also support forests. In this regard, the ability 
to successfully support a type of vegetation indicative of a single 
land use may not alone prove the land's capability has been restored to 
the requirements of section 515(b)(2) of SMCRA.\193\ Finally, previous 
Sec.   780.23(a)(2)(i), which we adopted in the final rule as Sec.  
779.22(b)(1), specifies that capability must be determined on the basis 
of soil and foundation characteristics,

[[Page 93118]]

topography, vegetative cover, and the hydrology of the proposed permit 
area.
---------------------------------------------------------------------------

    \191\ 30 U.S.C. 1265(b)(2).
    \192\ capable. 2016. In Merriam-Webster.com. Retrieved Nov.1, 
2016, from http://www.merriam-webster.com/dictionary/capable. Oxford 
University Press.
    \193\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    One commenter urged us to include within the definition of 
``reclamation'' a reference to the restoration of streams damaged by 
subsidence. We are not incorporating this recommendation into the final 
rule because we have specifically addressed this issue within Sec.  
784.30, relating to preparation of a ``subsidence control plan and what 
information must that plan include'' and Sec.  817.121, relating to 
what measures must be taken to ``prevent, control, or correct damage 
resulting from subsidence'' within the final rule and discussed more 
thoroughly within those sections.
Reclamation Plan
    Several commenters combined their comments on this definition 
within their discussion of the definition of ``reclamation.'' 
Therefore, we addressed the comments regarding ``reclamation plan'' in 
the same manner as explained in the definition of ``reclamation.'' We 
received no additional comments on our proposed revisions to this 
definition; therefore, we are adopting the definition as proposed.
Renewable Resource Lands
    We proposed to define ``renewable resource lands'' as ``aquifers, 
aquifer recharge areas, recharge areas for other subsurface and surface 
water, areas of agricultural or silvicultural production of food and 
fiber, and grazing lands.'' The only substantive difference from the 
previous definition, which we adopted on March 13, 1979, was the 
addition of recharge areas for surface water.
    One commenter expressed concern that the inclusion of recharge 
areas for surface water could have the effect of classifying all lands 
within watersheds that drain to a stream or reservoir used for a public 
drinking water supply as renewable resource lands and thus open the 
door to challenges seeking to ban all coal mining in those watersheds. 
According to the commenter, this outcome would be inconsistent with the 
statement in the DRIA that the proposed rule would not strand or 
sterilize any reserves; i.e., that the proposed rule would not make any 
coal reserves that are technically and economically feasible to mine 
under baseline conditions unavailable for extraction. The commenter 
further opined that, if we decide to proceed with adoption of the 
revised definition, we should conduct a detailed socioeconomic impact 
analysis to fully assess the repercussions of expanding the scope of 
the definition.
    We do not agree with the commenter that the outcome described above 
represents a change from the status quo. The outcome described by the 
commenter is consistent with the baseline conditions upon which the 
DRIA was based. Section 522(a)(3)(C) of SMCRA \194\ provides that a 
regulatory authority may, pursuant to a petition, designate a surface 
area as unsuitable for certain types of surface coal mining operations 
if those operations will ``affect renewable resource lands in which 
such operations could result in a substantial loss or reduction of 
long-range productivity of water supply or of food or fiber products, 
and such lands to include aquifers and aquifer recharge areas.'' This 
language clearly includes watersheds of reservoirs and natural water 
bodies that function as water supplies. We have always interpreted the 
definition of ``renewable resource lands'' as including those 
watersheds.\195\ Therefore, there is no need for a socioeconomic 
analysis of the proposed definition because the revisions are intended 
to reconcile the definition to both the underlying statutory provision 
and historical practice.
---------------------------------------------------------------------------

    \194\ 30 U.S.C. 1272(a)(3)(C).
    \195\ See 48 FR 41327 (Sept. 14, 1983) (``these types of lands 
[watershed lands] may, on a case-by-case basis, be determined to be 
renewable resource lands'').
---------------------------------------------------------------------------

    However, we agree that the scope of the proposed definition is too 
broad in that it would include the watersheds of all surface waters, 
not just surface water bodies that serve as water supplies. Therefore, 
we decided not to adopt the proposed revision to the definition to the 
extent that it would include ``recharge areas for other subsurface and 
surface water.'' Instead, we revised the definition to include 
``recharge areas for other subsurface water,'' which is consistent with 
the previous definition's inclusion of areas for the recharge of other 
underground waters. We also revised the definition to include ``surface 
water bodies that function as a water supply.'' The latter revision 
more closely tracks the language of section 522(a)(3)(C) of SMCRA.
    One commenter supported the proposed modification of the definition 
to include recharge areas for surface waters. The commenter recommended 
that we revise the proposed definition to explicitly identify examples 
of surface waters by adding ``(such as lakes, ponds, and wetlands)'' 
after ``surface water.'' We decline to adopt this recommendation 
because our revision of the definition to include ``watersheds for 
surface water bodies that function as a water supply'' provides 
sufficient specificity without being under inclusive or over inclusive.
    A commenter noted that the preamble to the proposed definition 
stated that the definition would include recharge areas for wetlands. 
See 80 FR 44436, 44588 (Jul. 27, 2015). The commenter further noted 
that the definition itself does not mention wetlands, which means that, 
in practice, recharge areas for wetlands are unlikely to be protected 
as renewable resource lands. The commenter recommended that we revise 
the definition to explicitly include recharge areas for wetlands. We 
acknowledge the inconsistency cited by the commenter. However, nothing 
in section 522(a)(3)(C) of SMCRA mentions wetlands as being renewable 
resource lands. Therefore, we decline to revise the definition as 
recommended. Wetlands will be considered renewable resource lands only 
to the extent they are integral features of watersheds of surface water 
bodies that function as water supplies.
Replacement of Water Supply
    We received no comments on our proposed revisions to this 
definition, which we are adopting as proposed.
Temporary Diversion
    One commenter expressed concern that the proposed definition of 
``temporary diversion'' includes no specific time for ``temporary.'' 
The commenter noted that, under the proposed definition, a temporary 
diversion could remain in place until the end of mining and reclamation 
activities, which may be measured in decades, and therefore is not 
consistent with the common usage of the word ``temporary.'' The 
commenter recommended that, with respect to stream diversions, the word 
``temporary'' be subdivided into a ``short-term temporary'' period no 
more than two years in duration and a ``long-term temporary'' period 
two years or longer in duration that can extend until the end of mining 
and reclamation activities.
    The commenter correctly points out that proposed Sec. Sec.  780.28 
and 784.28 would establish different standards for a temporary stream 
channel diversion in place for more than two years as compared to one 
in place for less than two years. However, we do not agree that the 
revision suggested by the commenter is necessary or would improve 
clarity. We define a ``temporary diversion'' as a ``channel constructed 
to convey streamflow or overland flow'' and specify that the term 
``includes only those channels not approved by the

[[Page 93119]]

regulatory authority to remain after reclamation as part of the 
approved postmining land use.'' Thus, a temporary diversion is in place 
only until its intended purpose has been fulfilled, after which time it 
is removed. A temporary diversion may be in place through the 
reclamation phase and bond release, which, as the commenter notes, 
could be decades. While the term ``permanent diversion'' is not 
specifically defined, it includes anything that is not a ``temporary 
diversion.'' We do not define the term ``temporary'' relative to the 
time a diversion is in place, but rather according to whether it will 
be removed at some point in the reclamation process.
    Relative to the commenter's assertion that the definition should be 
clarified, we did make changes to Sec.  816.43 in the final rule to 
establish three categories of diversions (diversion ditches, stream 
diversions, and conveyances or channels within the disturbed area) and 
we specify the requirements that apply to each category.
    Another commenter stated that the word ``conveyance'' in the 
definition of a temporary diversion should be removed or, at a minimum, 
modified so that if the conveyances fail, they will be limited to 
discharges ``out of the pit.'' The commenter further asserted that ``in 
pit'' conveyance structures that fail do not pose a risk to the public 
or the environment. Therefore, according to the commenter, they should 
not be regulated under SMCRA or the Clean Water Act. We did not alter 
the final rule in response to this comment because many of these 
conveyances may be quite lengthy, often thousands of feet in length, 
and a failure along such a conveyance may result in water flowing away 
for the pit, not always into the pit as suggested by the commenter, 
which may potentially result in discharges off site. We did however add 
language to the final definition to include channels that convey flows 
to a siltation structure or other treatment facility. Thus, diversions 
can be constructed within the permit area to convey water to a 
siltation structure or, as the commenter suggested, to the mine pit.
Waters of the United States
    We proposed to define the term ``waters of the United States'' in 
the same manner it is defined within 40 CFR 230.3(s), which is part of 
the section 404(b)(1) guidelines under the Clean Water Act.\196\ We 
received comments both supporting and opposing our proposed addition of 
a definition of this term. After evaluating the comments, we agree that 
adoption of the definition is unnecessary for implementation of the 
final rule. In response to comments, we have revised the final rule by 
replacing the term ``waters of the United States'' with ``waters 
subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 1251 et 
seq.''
---------------------------------------------------------------------------

    \196\ 80 FR 44436, 44478 (Jul. 27, 2015).
---------------------------------------------------------------------------

Wetlands
    We did not propose to add a definition of ``wetlands.'' However, a 
few commenters requested that we define ``wetlands'' or, preferably, 
clarify that the term ``wetlands'' as used in our final rule 
corresponds to the existing definition within the regulations 
promulgated pursuant to the Clean Water Act. We find that a unique 
definition in the final rule is unnecessary. Instead, we will defer to 
the definition of ``wetlands'' as promulgated by the U.S. Army Corps of 
Engineers and U.S. Environmental Protection Agency. Additionally, these 
commenters stated that we should specify in the final rule that 
wetlands must be delineated using field techniques according to the 
most recent requirements from the Clean Water Act regulatory authority. 
One commenter suggested that the U.S. Army Corps of Engineers should 
delineate, document, map, and field confirm wetlands. This commenter 
also suggested that we adopt a definition of ``wetlands'' that includes 
an explanation that ``wetlands are one subset of the Waters of the 
United States and are subject to the requirements of the Clean Water 
Act, just as are streams and other regulated bodies.''
    We decline to adopt the commenters' recommendations. We are not 
aware of any instances in which the lack of a definition of 
``wetlands'' under SMCRA has created a problem. For regulatory 
purposes, the term ``wetlands'' is commonly understood to mean wetlands 
as determined using the diagnostic techniques in the U.S. Army Corps of 
Engineers Wetlands Delineation Manual, Technical Report Y-87-1, as 
published in January 1987 and subsequently modified. Paragraph 26 in 
Part II of that manual summarizes the fundamental characteristics of 
wetlands. Section 702(a) of SMCRA \197\ provides that ``[n]othing in 
this Act shall be construed as superseding, amending, modifying, or 
repealing'' the Clean Water Act or ``any rule or regulation promulgated 
thereunder.'' Therefore, SMCRA regulatory authorities must define and 
identify wetlands in a manner that is no less inclusive than any 
definition used under the Clean Water Act. However, section 505(b) of 
SMCRA \198\ specifies that any state law or regulation that provides 
for ``more stringent land use and environmental controls of surface 
coal mining and reclamation operations than do the provisions of this 
Act or any regulation issued pursuant thereto shall not be construed to 
be inconsistent with this Act.'' Therefore, SMCRA regulatory 
authorities may use wetlands definitions and delineation techniques 
that differ from those in the U.S. Army Corps of Engineers' Manual so 
long as those definitions and techniques do not exclude any areas that 
qualify as wetlands under the Wetlands Delineation Manual. With respect 
to the comment that the rule should require that the U.S. Army Corps of 
Engineers delineate, document, map, and field confirm wetlands, we do 
not have the authority under SMCRA to impose obligations on the U.S. 
Army Corps of Engineers. We encourage the SMCRA regulatory authority to 
coordinate review of permit applications with the U.S. Army Corps of 
Engineers, but we find no reason to expressly restrict wetland 
delineation to the U.S. Army Corps of Engineers as part of this final 
rule.
---------------------------------------------------------------------------

    \197\ 30 U.S.C. 1292(a).
    \198\ 30 U.S.C. 1255(b).
---------------------------------------------------------------------------

Section 701.16: How will the stream protection rule apply to existing 
and future permits and permit applications?

    Our proposed rule did not include regulatory text clarifying how 
the rule would affect existing permits and permit applications. A 
number of commenters emphasized that the final rule needed to include 
such a provision, both for clarity and to ensure preservation of the 
rights of existing permit holders. Some commenters noted that many of 
the requirements of the stream protection rule, such as expanded 
baseline data collection and permit application requirements and 
related performance standards and bond release requirements, would be 
impossible for existing operations to meet because the site has already 
been disturbed. According to the commenters, the final rule should 
apply only to new operations or to additions to existing operations, 
not to existing permitted lands and reclaimed areas. Others emphasized 
the general legal principle that regulations should be prospective in 
nature, not retroactive.
    One commenter observed that it is not clear which parts of the 
proposed rule would apply to existing permits. The commenter noted that 
the DRIA stated that, for purposes of that analysis, Sec. Sec.  774.15, 
800.18, 800.40, 816.35,

[[Page 93120]]

816.36, 816.41, 817.35, 817.36, and 817.41 would be considered as 
applying to existing permits. The commenter further stated that the 
final rule should include interim requirements or a schedule for 
existing permits and permit applications under review to comply with 
the final rule.
    We agree that, in general, the final rule that we are publishing 
today should be prospective, not retroactive. Therefore, we have added 
Sec.  701.16 to clarify the applicability of the rule. Section 701.16 
applies only to the revisions to Parts 701 through 827, which paragraph 
(a) characterizes as the ``stream protection rule.'' Section 701.16 
does not affect the revisions to our termination of jurisdiction rules 
in Sec.  700.11(d) because those revisions merely codify longstanding 
court decisions and legal representations concerning the applicability 
of the rules governing the termination and reassertion of jurisdiction. 
Paragraphs (a)(1) through (5) of Sec.  701.16 establish minimum 
applicability standards for those stream protection rule provisions 
that do not contain their own specific applicability provisions.
    Section 701.16 supersedes the statement in the DRIA that identifies 
Sec. Sec.  774.15, 800.18, 800.40, 816.35, 816.36, 816.41, 817.35, 
817.36, and 817.41 as applying to existing permits. Under Sec.  701.16, 
the stream protection rule would not apply to existing permits unless 
the permittee applies for certain types of permit revisions. Therefore, 
there is no need for this rule to establish interim requirements or a 
compliance schedule for existing permits. Of course, it would not be 
inconsistent with SMCRA for a regulatory authority to, in its 
discretion, apply some or all provisions of the stream protection rule 
to part or all of a permit or application not listed in paragraph (a) 
of this section.
    Paragraph (a)(1) of Sec.  701.16 provides that the stream 
protection rule applies to any application for a new permit submitted 
to the regulatory authority after the effective date of the stream 
protection rule under the applicable regulatory program. One commenter 
argued that the final rule should apply only to new leases or lands 
acquired after the effective date of the rule because adoption of the 
proposed rule would significantly increase the cost of mining large 
tracts of lands and coal reserves in which companies have already made 
significant investments. We do not agree. Persons who acquire leases, 
lands, or interests in land do so subject to future regulatory 
restrictions on use of those leases, lands, or interests in land. To 
the extent a property right exists to mine coal in a particular 
location using a particular method that right does not vest until 
issuance of a SMCRA permit. Even then, the regulatory authority has the 
right to require reasonable revision of the permit to ensure compliance 
with the Act and applicable regulatory program. See section 511(c) of 
SMCRA \199\ and the implementing regulations at 30 CFR 774.10(b).
---------------------------------------------------------------------------

    \199\ 30 U.S.C. 1261(c).
---------------------------------------------------------------------------

    Paragraph (a)(2) of Sec.  701.16 provides that the stream 
protection rule applies to any application for a new permit pending a 
decision by the regulatory authority as of the effective date of the 
stream protection rule under the applicable regulatory program, unless 
the regulatory authority has determined the application to be 
administratively complete under Sec.  777.15 or its state program 
counterpart before the effective date of the stream protection rule 
under the applicable regulatory program. Exempting administratively 
complete applications would protect permit applicants who invested time 
and money in developing a good-faith application under the existing 
rules.
    Paragraph (a)(3) of Sec.  701.16 provides that the stream 
protection rule applies to any application for the addition of acreage 
to an existing permit submitted to the regulatory authority after the 
effective date of the stream protection rule under the applicable 
regulatory program, with the exception of applications for incidental 
boundary revisions that do not propose to add acreage for coal removal. 
Under section 511(a)(3) of SMCRA \200\ and 30 CFR 774.13(d), any 
extensions to the area covered by a permit, except incidental boundary 
revisions, must be made by application for a new permit. However, some 
state regulatory programs authorize addition of acreage to an existing 
permit via the permit revision process, provided that the revision 
meets the application information requirements for a new permit and the 
regulatory authority processes the application like an application for 
a new permit. Paragraph (a)(3) would apply to these situations. We 
added the provision excluding incidental boundary revisions that add 
acreage for coal removal as a safeguard against abuse of the exception 
for incidental boundary revisions.
---------------------------------------------------------------------------

    \200\ 30 U.S.C. 1261(a)(3).
---------------------------------------------------------------------------

    Paragraph (a)(4) of Sec.  701.16 provides that the stream 
protection rule applies to any application for the addition of acreage 
to an existing permit pending a decision by the regulatory authority as 
of the effective date of the stream protection rule under the 
applicable regulatory program, with two exceptions. First, the stream 
protection rule would not apply to applications for incidental boundary 
revisions that do not propose to add acreage for coal removal. Second, 
the stream protection rule would not apply to applications that the 
regulatory authority has determined to be administratively complete 
before the effective date of the stream protection rule under the 
applicable regulatory program. The rationale for this paragraph is 
consistent with the rationale contained in paragraphs (a)(2) and (3).
    Paragraph (a)(5) of section 701.16 provides that the stream 
protection rule applies to any application for a permit revision 
submitted on or after the effective date of the stream protection rule 
under the applicable regulatory program, or pending a decision by the 
regulatory authority as of that date, that proposes a new excess spoil 
fill, coal mine waste refuse pile, or coal mine waste slurry 
impoundment or that proposes to move or expand the location of an 
approved excess spoil fill or coal mine waste facility. Many of the 
studies cited in Part II of the preamble mention that excess spoil 
fills are especially detrimental to streams, both because they often 
cover stream segments and because of the adverse impacts of drainage 
from and through the fill on aquatic life in streams downstream of the 
fill. Coal mine waste refuse piles and slurry impoundments have similar 
characteristics in that they sometimes cover stream segments and 
because drainage from and through the refuse pile or slurry impoundment 
could adversely impact aquatic life in receiving streams.
    Paragraph (a)(5) protects the rights and investment of existing 
permittees and persons with administratively complete applications, 
while limiting that protection to the locations and dimensions approved 
in the permit or contained in an administratively complete permit 
revision. Allowing a permittee to revise the permit to add new excess 
spoil fills or coal mine waste facilities, or to alter the location or 
size of those fills or coal mine waste facilities, without complying 
with the provisions of this final rule would be inconsistent with the 
principal purpose of the stream protection rule; i.e., preventing the 
loss or degradation of streams.

[[Page 93121]]

C. Part 773--Requirements for Permits and Permit Processing

Section 773.5: How must the regulatory authority coordinate the 
permitting process with requirements under other laws?

    We are finalizing Sec.  773.5 as proposed. We received no comments 
on this section.

Section 773.7: How and when will the regulatory authority review and 
make a decision on a permit application?

    We are finalizing Sec.  773.7 as proposed. We received no comments 
on this section.

Section 773.15: What findings must the regulatory authority make before 
approving a permit application?

    We are adopting Sec.  773.15 as proposed with the exception of 
paragraphs (e), (j), and (n). One commenter urged us to revise 
paragraph (e)(2) to provide that a regulatory authority may not approve 
a permit application unless it determines that the proposed operation 
is not predicted to cause subsidence that would result in the 
dewatering of any perennial or intermittent stream. Proposed paragraph 
(e)(2), like section 510(b)(3) of SMCRA,\201\ provides that the 
regulatory authority may not approve a permit application unless the 
regulatory authority finds in writing that the proposed operation has 
been designed to prevent material damage to the hydrologic balance 
outside the permit area. Therefore, we decline to make the change that 
the commenter recommends. Instead, the definition of ``material damage 
to the hydrologic balance outside the permit area'' in Sec.  701.5 of 
the final rule will govern when dewatering of a perennial or 
intermittent stream will constitute material damage to the hydrologic 
balance outside the permit area and thus prevent approval of the permit 
application.
---------------------------------------------------------------------------

    \201\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Proposed paragraph (e)(3) would have required that the regulatory 
authority include in the permit site-specific criteria for material 
damage to the hydrologic balance outside the permit area. Proposed 
paragraph (e)(3) would have required that the criteria be expressed in 
numerical terms for each parameter of concern. Several commenters 
opposed this proposed provision, alleging that requiring the regulatory 
authority to set numerical criteria would supersede the Clean Water 
Act, which would violate section 702 of SMCRA.\202\ Some commenters 
also cited In re Surface Mining Regulation Litigation, 627 F.2d 1346 
(D.C. Cir. 1980) as support for their assertions. As discussed further 
in Part IV.I. of this preamble, neither the proposed rule nor this 
final rule exceed our authority but instead fills a regulatory gap. 
This final rule better accomplishes statutory directives in SMCRA, 
including those that require the prevention of material damage to the 
hydrologic balance outside the permit area and those that require a 
minimization of disturbances to the prevailing hydrologic balance at 
the mine site and in associated offsite areas. See, e.g., 30 U.S.C. 
1260(b)(3), 1260(b)(10). However, we did not adopt proposed paragraph 
(e)(3) as part of the final rule because we determined that we did not 
need this paragraph to in order to implement the statutory directives. 
Furthermore, we modified proposed Sec. Sec.  780.21(b) and 784.21(b) to 
allow regulatory authorities to select narrative as well as numeric 
thresholds for material damage to the hydrologic balance outside the 
permit area for the reasons discussed in the preamble to those 
sections. In determining the appropriate numeric or narrative 
thresholds, the regulatory authority will consult with the Clean Water 
Act authority, as appropriate, and undertake a comprehensive evaluation 
of the factors set forth in Sec.  780.21(b)(6).
---------------------------------------------------------------------------

    \202\ 30 U.S.C. 1292(a)(3).
---------------------------------------------------------------------------

    Proposed Sec.  773.15(j) would have required that the regulatory 
authority find that the operation is not likely to jeopardize the 
continued existence of species listed or proposed for listing as 
threatened or endangered under the Endangered Species Act of 1973, 16 
U.S.C. 1531 et seq., or result in destruction or adverse modification 
of designated critical habitat under that law. We revised proposed 
Sec.  773.15(j) in response to comments from the public and other 
federal agencies and as a result of our consultation with the U.S. Fish 
and Wildlife Service under sections 7(a)(1) and (a)(2) of the 
Endangered Species Act of 1973.\203\ Referring to species listed as 
threatened or endangered, the Endangered Species Act provides that ``it 
is unlawful for any person subject to the jurisdiction of the United 
States to . . . (C) take any such species within the United States.'' 
\204\ ``Take'' is defined in the statute to mean ``to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt to engage in any such conduct.'' \205\ The U.S. Fish and 
Wildlife Services' regulations implementing these provisions further 
define ``harm'' to ``include significant habitat modification or 
degradation which actually kills or injures fish or wildlife by 
significantly impairing essential behavioral patterns, including, 
breeding, spawning, rearing, migrating, feeding or sheltering.'' \206\ 
Take that is incidental to lawful activity is allowed, but only if the 
person obtains an authorization for that ``incidental take'' from the 
U.S. Fish and Wildlife Service or the National Marine Fisheries 
Service, as appropriate, before engaging in the activity.\207\ If a 
person ``takes'' a threatened or endangered species without obtaining 
authorization from the appropriate agency, that person could be subject 
to civil or criminal penalties.\208\
---------------------------------------------------------------------------

    \203\ 16 U.S.C. 1536(a)(1)-(2).
    \204\ 16 U.S.C. 1538(a)(1)(C).
    \205\ 16 U.S.C. 1532(19).
    \206\ 50 CFR 222.102.
    \207\ 16 U.S.C. 1539(a)(1).
    \208\ 16 U.S.C. 1540.
---------------------------------------------------------------------------

    Our final Sec.  773.15(j) provides applicants and regulatory 
authorities with four pathways to demonstrate that the operation will 
be conducted in compliance with the Endangered Species Act.\209\ 
Paragraphs (j)(1) through (4) set forth those pathways.
---------------------------------------------------------------------------

    \209\ 16 U.S.C. 1531, et seq.
---------------------------------------------------------------------------

    Section 773.15(j)(1) applies when the applicant provides 
documentation that the proposed surface coal mining and reclamation 
operations would have no effect on species listed or proposed for 
listing as threatened or endangered under the Endangered Species Act of 
1973, 16 U.S.C. 1531 et seq., or on designated or proposed critical 
habitat under that law. This finding requires a demonstration that no 
impact on a proposed or listed species, or on designated or proposed 
critical habitat, will occur, regardless of the severity of the impact 
or whether the impact is positive or negative. An applicant might 
demonstrate this by showing that surveys have not revealed the presence 
of any listed or proposed species or designated or proposed critical 
habitat within the proposed permit or adjacent areas or that the 
operation has been designed to avoid areas where a species is known to 
occur. However, the permit applicant and the regulatory authority 
should communicate early in the process with the relevant office of the 
U.S. Fish and Wildlife Service or National Marine Fisheries Service to 
ensure that any necessary surveys have been completed and any avoidance 
measures are sufficient to ensure that there will be no effect on 
relevant species or habitat.
    Paragraph (j)(2) applies when the applicant and the regulatory 
authority document compliance with a valid

[[Page 93122]]

biological opinion that covers the issuance of permits for surface coal 
mining operations and the conduct of those operations under the 
applicable regulatory program. Paragraph (j)(2) would apply to the 
biological opinion associated with this rulemaking, or to a biological 
opinion covering the issuance of permits for surface coal mining 
operations and the conduct of those operations. Compliance with the 
pertinent biological opinion is an ongoing obligation that extends for 
the duration of the surface coal mining and reclamation operations.
    Paragraph (j)(3) is an option when we are the regulatory authority 
or there is another federal nexus to the proposed operation. Under this 
option, the applicant must provide documentation that interagency 
consultation under section 7 of the Endangered Species Act of 1973, 16 
U.S.C. 1536, has been completed for the proposed operation. Paragraph 
(j)(4) is an option when a state regulatory authority is responsible 
for permitting actions, and another option under this paragraph is 
either unavailable or is not utilized. Under this option, the applicant 
must provide documentation that the proposed operation is covered under 
a permit issued pursuant to section 10 of the Endangered Species Act of 
1973, 16 U.S.C. 1539.
    Some commenters requested that we revise proposed Sec.  773.15(j) 
because, as initially proposed, they believed this section required the 
regulatory authority to make a finding that the operation was ``not 
likely to jeopardize the continued existence of species listed or 
proposed for listing'' under the Endangered Species Act. The commenters 
alleged that it was the responsibility of the Service(s) to make a 
``jeopardy'' determination and that the regulatory authorities do not 
have the expertise to make this type of finding. We agree and have 
clarified the final regulation. As explained above, we revised this 
section to require the that the regulatory authority make a finding 
that the permit will comply with the Endangered Species Act, either 
because the proposed operation will have no effect upon any species 
listed or proposed for listing as threatened or endangered under the 
Endangered Species Act of 1973, or on designated or proposed critical 
habitat under that law or because the applicant and the regulatory 
authority have documented compliance with one of the mechanisms 
described in paragraphs (j)(2) through (4).
    Many commenters also alleged that imposing a requirement that an 
operation must not jeopardize the continued existence of species 
proposed for listing as threatened or endangered under the Endangered 
Species Act is beyond our authority under SMCRA. Some commenters 
alleged that we do not have authority to enforce the requirements of 
the Endangered Species Act. We do not agree with either comment. As we 
noted in the preamble to the proposed rule, both SMCRA and the 
Endangered Species Act provide authority to protect species that have 
been proposed for listing.\210\ SMCRA sections 515(b)(24) and 
516(b)(11) \211\ require that, at a minimum, mining operations must 
``to the extent possible using the best technology currently available, 
minimize disturbances and adverse impacts of the operation on fish, 
wildlife, and related environmental values, and achieve enhancement of 
such resources where practicable.'' The requirement to minimize impacts 
to ``fish, wildlife, and related environmental values'' is not in any 
way limited to species that have already been listed under the 
Endangered Species Act.
---------------------------------------------------------------------------

    \210\ 80 FR 44436, 44565 (Jul. 27, 2015).
    \211\ 30 U.S.C. 1265(b)(24), 1266(b)(11).
---------------------------------------------------------------------------

    Moreover, three different provisions of the Endangered Species Act 
apply to the Department of the Interior in connection with the 
implementation of SMCRA. First, section 7(a)(1) of the Endangered 
Species Act \212\ provides that ``[t]he Secretary shall review other 
programs administered by him and utilize such programs in furtherance 
of the purposes of this Act.'' That would necessarily include utilizing 
SMCRA to protect ecosystems and conserve endangered and threatened 
species as provided for in the Endangered Species Act.\213\ Second, 
section 7(a)(2) of the Endangered Species Act \214\ requires us to 
consult with the U.S. Fish and Wildlife Service or the National Marine 
Fisheries Service to ``insure that any action authorized, funded, or 
carried out'' by us will not jeopardize the continued existence of any 
species listed as threatened or endangered under the Endangered Species 
Act or result in the destruction or adverse modification of designated 
critical habitat. Third, section 7(a)(4) of the Endangered Species Act 
\215\ requires that we ``confer with the Secretary on any action which 
is likely to jeopardize the continued existence of any species proposed 
to be listed under section 4 [of the Endangered Species Act] . . .'' 
(Emphasis added). Thus, section 7(a)(2) requires us to consult with the 
appropriate Service(s) on any actions that may impact species listed 
under the Endangered Species Act or designated critical habitat for 
those species, while section 7(a)(4) requires us to confer with the 
appropriate Service(s) on any actions that may jeopardize the continued 
existence of any species proposed to be listed under the Endangered 
Species Act (and any critical habitat proposed to be designated for 
such species). Seizing on this difference, commenters criticize our 
inclusion of species proposed for listing in certain provisions of this 
rulemaking, claiming that we have incorrectly conflated the two 
different requirements. The commenters are wrong. The existence of a 
consultation requirement under section 7(a)(2) for listed species does 
not diminish our separate obligation under section 7(a)(4) to address 
the impact of coal mining operations on species proposed for listing. 
Section 7(a)(4) (in addition to our SMCRA authorities) provides us with 
the authority to protect both species proposed for listing and proposed 
critical habitat.
---------------------------------------------------------------------------

    \212\ 16 U.S.C. 1536(a)(1).
    \213\ 16 U.S.C. 1531(b).
    \214\ 16. U.S.C. 1536(a)(2).
    \215\ 16 U.S.C. 1536(a)(4).
---------------------------------------------------------------------------

    Regarding paragraph (k), a commenter requested that we include 
language within paragraph (k) and in other provisions of the rule that 
relate to the National Historic Preservation Act \216\ to explicitly 
state that those provisions only apply to ``undertakings'' and that our 
requirements only apply to federal regulatory programs. Similarly, 
another commenter asked that we clarify that the National Historic 
Preservation Act is not applicable to state programs and suggested that 
reference to the National Historic Preservation Act be removed. We did 
not propose any substantive changes to paragraph (k) and we are not 
making any changes in that paragraph in response to these comments. The 
suggestions made by the commenters are contrary to our longstanding 
position related to this topic as reflected in our 1987 rulemaking, 
``Protecting Historic Properties from Surface Coal Mining Operations.'' 
This final rule amended our regulations with respect to how historic 
properties are considered during surface coal mining operations. Within 
that rulemaking, we stated:
---------------------------------------------------------------------------

    \216\ 54 U.S.C. 300101-307108.

    Under section 522(e) of SMCRA, the regulatory authority (and 
OSMRE for permits it issues) must protect publicly and privately 
owned properties listed on the National Register of Historic Places. 
There is no obligation under section 522(e)(3) to protect properties 
that are eligible for, but not listed on, the National Register. 
However, this finding requires the regulatory authority to consider 
such resources when making

[[Page 93123]]

permitting decisions in order to assure that the regulatory 
authority can assist the Secretary in implementing his 
responsibilities under section 106 of the National Historic 
Preservation Act.\217\
---------------------------------------------------------------------------

    \217\ 52 FR 4244 (Feb. 10, 1987).

We continue to adhere to this position. Moreover, our proposed rule did 
not include any substantive changes to paragraph (k). If we determine 
it is appropriate to change our position on protecting historic places 
from surface coal mining operations, this determination would be better 
addressed in a future rulemaking.
    Proposed paragraph (n)(1) would have required that the applicant 
demonstrate that the proposed operation has been designed to prevent 
the formation of discharges with levels of parameters of concern that 
would require long-term treatment after mining has been completed. 
Proposed paragraph (n)(2) would have required that the applicant 
demonstrate that there is no credible evidence that the design of the 
proposed operation will not work as intended to prevent the formation 
of discharges with levels of parameters of concern that would require 
long-term treatment after mining has been completed.
    A commenter supported proposed paragraph (n), noting that it 
ensures advances in predicting the formation of mine drainage will be 
employed to prevent water pollution. However, other commenters 
expressed concern that the ``no credible evidence'' standard would 
create uncertainty and result in unjustified permit denials by 
regulators fearful of approving any permit application in areas where 
acid-forming or toxic-forming materials are present. In response, we 
modified paragraph (n)(2) to delete the ``no credible evidence'' 
standard and replace it with a requirement that the demonstration and 
finding be based on a thorough analysis of all available evidence. 
Final paragraph (n)(2) also requires that the applicant explain why a 
study or other evidence that supports a contrary conclusion is not 
credible or applicable to the proposed operation.
    Final paragraph (n) requires not only a demonstration by the 
applicant, but also concurrence by the regulatory authority. The 
requirement for concurrence by the regulatory authority provides an 
additional safeguard against the approval of applications that 
ultimately create long-term discharges in need of treatment.
    Unlike the proposed rule, final paragraphs (n)(1) and (2) do not 
refer to ``parameters of concern'' because the purpose of this finding 
is to prevent the formation of any long-term discharges that require 
treatment, regardless of whether the parameter that creates the need 
for treatment is a parameter of concern. In final paragraph (n)(1), we 
replaced ``parameters of concern'' with the term ``toxic mine 
drainage,'' which is both more appropriate and more encompassing. There 
is no need for a replacement term in final paragraph (n)(2).
    Several commenters suggested that proposed paragraph (n) should be 
revised to explain what the term ``long-term treatment'' means, how a 
determination of a need for long-term treatment is made, and the 
ramifications if the findings incorrectly determine the need for long-
term treatment. We do not agree that there is a need for additional 
specificity in the text of the rule. ``Long-term'' refers to a 
discharge that continues to require treatment for more than a short 
time after the completion of land reclamation. The ramifications of 
making a demonstration and finding that ultimately prove inaccurate 
will vary with the circumstances resulting in the discharge, the nature 
of the discharge, and the timing of the discovery. Possible outcomes 
include issuance of a permit revision order, enforcement action, or 
initiation of action to rescind the permit under section 773.20 of this 
rule. In all cases, the permittee will need to treat the discharge and 
post appropriate final assurance or bond to cover treatment costs.
    A commenter expressed concern that proposed paragraph (n) would 
shift the burden of monitoring and accountability for everything that 
happens to water quality in the watershed to the coal industry. We 
disagree with the commenter. Final paragraph (n)(1) requires that the 
applicant demonstrate, and the regulatory authority concur, that the 
proposed operation has been designed to prevent toxic mine drainage 
that would require long-term treatment after mining has been completed. 
Final paragraph (n)(2) requires that the applicant demonstrate, and the 
regulatory authority concur, that a thorough analysis of all available 
evidence supports a conclusion that the design of the proposed 
operation will work as intended to prevent the formation of discharges 
that would require long-term treatment after mining has been completed. 
Final paragraph (n)(2) also provides that, if a study or other evidence 
supports a contrary conclusion, the applicant must explain why that 
study or other evidence is not credible or applicable to the proposed 
operation. Nothing in final paragraph (n) assigns accountability for 
all water quality issues in the watershed to the permittee and the 
monitoring requirements of this final rule are directed toward 
identifying mining-related impacts on water quality and quantity so 
that those impacts can be distinguished from nonmining-related impacts.
    One commenter asserted that by incorporating paragraph (n) we were 
improperly attempting to adopt and incorporate by reference a flawed 
policy document entitled, ``Hydrologic Balance Protection: Policy Goals 
and Objectives on Correcting, Preventing, and Controlling Acid/Toxic 
Mine Drainage'' that we issued on March 31, 1997. In that policy and 
accompanying documents, we explain that approval of a permit that would 
result in the creation of a discharge requiring long-term treatment 
would be inconsistent with SMCRA. We do not agree that the policy is 
flawed because it is fully justified by SMCRA.\218\ Therefore, we made 
no changes to paragraph (n) based on this comment.
---------------------------------------------------------------------------

    \218\ See, e.g., 30 U.S.C. 1258(a)(13), 1260(b)(3), 1265(b)(10), 
1266(b)(9).
---------------------------------------------------------------------------

    We received many comments supporting proposed section (o), which 
required that the regulatory authority find that, to the extent 
possible using the best technology currently available, the proposed 
operation has been designed to minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values, as 
identified in Sec. Sec.  779.20 or 783.20, and to enhance those 
resources where practicable, as required under Sec.  780.16 or Sec.  
784.16. This language is similar to sections 515(b)(24) and 516(b)(11) 
of SMCRA \219\ and is intended to reinforce compliance with those 
statutory provisions. We are adopting Sec.  773.15(o) as proposed, with 
the exception that the final rule does not include the phrase ``as 
identified in Sec.  779.20 or 783.20'' because those sections do not 
require identification of all related environmental values.
---------------------------------------------------------------------------

    \219\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

Section 773.17: What conditions must the regulatory authority place on 
each permit issued?

    We proposed to revise paragraph (e) of this section by adding 
paragraph (e)(4) to require that the permittee notify the regulatory 
authority and other appropriate state and federal regulatory agencies 
of any noncompliance with a term or condition of the permit. 
Notification would allow those agencies to take any necessary action to 
minimize the impacts of the noncompliance on the environment or public 
health or safety, consistent with the purpose

[[Page 93124]]

stated in section 102(a) of SMCRA.\220\ We have also added final 
paragraph (i) that requires compliance with all effluent limitations 
and conditions in any National Pollutant Discharge Elimination System 
permit for consistency with Sec. Sec.  816.41, 816.42, and 817.42.
---------------------------------------------------------------------------

    \220\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

    One commenter generally supported proposed Sec.  773.17(e) but 
expressed concern that the provision would unnecessarily limit the 
notification requirement to situations caused by the operator's 
noncompliance with terms and conditions of the permit. The commenter 
recommended broadening the requirement in proposed paragraph (e)(4) to 
include notification to the appropriate regulatory authorities anytime 
the operator's monitoring reveals the potential for environmental harm, 
regardless of whether it is caused by the operator's noncompliance. We 
decline to revise this section as the commenter suggests. As required 
in final rule Sec.  780.23, an operator must monitor water resources 
located both within the proposed permit area, as well as adjacent 
areas. This monitoring must include locations that are situated 
upgradient and downgradient for groundwater and upstream and downstream 
for surface water of the mining operations. Samples obtained from the 
upgradient and upstream monitoring sites are representative of 
conditions existing in the waters prior to any potential influence of 
the mining and reclamation activities. Those samples collected from the 
downgradient and downstream sites are used to evaluate the effect of 
the operations on water resources once compared to the upgradient/
upstream samples. Therefore, any condition detected in the samples, 
even in those collected in waters prior to entering the mine site 
indicating an off-site source, that could result in an imminent danger 
to the health or safety of the public or that could cause or reasonably 
be expected to cause significant, imminent, environmental harm will be 
reported as part of the ongoing monitoring requirements regardless of 
whether or not a noncompliance exists.
    Another commenter alleged that the proposed rule language lacked 
clarity on when the notification was required, what information needed 
to be included in the notice, and the timing required for the 
notification. In response to these comments, the language of the final 
rule has been modified. We have added language in paragraph (e)(4) 
specifying that the operator must notify the regulatory authority and 
other appropriate state and federal regulatory agencies whenever 
conditions within the permit area result in an imminent danger to the 
health or safety of the public or cause or could be reasonable expected 
to cause significant, imminent environmental harm to land, air, or 
water resources, regardless of whether a noncompliance exists. We note, 
however, that this requirement for immediate notification is only 
applicable to situations that could result in an imminent danger to 
public health or safety or significant, imminent environmental harm. 
For all other situations, as required by Sec.  840.11(a) and (b), the 
regulatory authority will be at the site for inspections at least 
monthly and, as required by Sec. Sec.  816.35(b)(1) and 816.36(b)(1), 
will review all monitoring data quarterly. Thus, the regulatory 
authority will have the tools to detect changes that do not rise to the 
level of imminent harm.
    Another commenter objected to the provision in paragraph (e)(4) 
that would require notice be provided to ``other appropriate state and 
federal regulatory agencies.'' According to the commenter, the SMCRA 
regulatory authority is the only agency with jurisdiction over 
compliance with SMCRA permits. We agree with commenter that the SMCRA 
regulatory authority has jurisdiction concerning SMCRA permit issues; 
however, coal mine operations are subject to other state and federal 
permitting actions. We have, however, limited the scope of paragraph 
(e)(4) only to those situations that would require the issuance of a 
cessation order for imminent danger or environmental harm under Sec.  
843.11(a). That approach should minimize the reporting burden on the 
permittee, while ensuring that the regulatory authority and other 
appropriate agencies receive notice of situations that require 
immediate attention to protect the public or prevent significant 
environmental harm from occurring.
    We also proposed to add a new permit condition in paragraph (h) of 
this section, which would require the permittee obtain all necessary 
authorizations, certifications, and permits in accordance with Clean 
Water Act requirements before conducting any activities that require 
approval or authorization under the Clean Water Act. Several commenters 
objected to this proposed addition. A couple of commenters stated that 
requiring Clean Water Act permits before mining contradicted section 
702 of SMCRA.\221\ Others interpreted proposed paragraph (h) as 
allowing SMCRA to supersede the authority of Clean Water Act agencies 
in determining when permits are required. We do not agree with those 
commenters who stated that it violated section 702(a) of SMCRA or 
otherwise superseded the authority of Clean Water Act agencies. Nothing 
in the language of this condition authorizes the SMCRA regulatory 
authority to determine when a Clean Water Act permit is needed--that is 
exclusively the jurisdiction of the agencies responsible for 
implementing and administering the Clean Water Act. Instead, the 
condition merely underscores that the permittee must obtain any 
required permits, authorizations, or certifications before initiating 
mining activities for which those permits, authorizations, and 
certifications are needed. The condition will allow the SMCRA 
regulatory authority to take enforcement action if another agency 
determines that a non-SMCRA permit is needed, but the SMCRA permittee 
does not obtain the necessary permit before beginning the pertinent 
mining operations.
---------------------------------------------------------------------------

    \221\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    These same commenters also questioned why we would single out the 
Clean Water Act as opposed to other state and federal permits for 
inclusion as permit conditions. After evaluating these comments, we 
have decided to expand the scope of paragraph (h) to require that the 
permittee obtain all necessary authorizations, certifications, and 
permits in accordance with ``other applicable federal, state, and 
tribal laws before conducting any activities that require 
authorization, certification, or a permit under those laws.'' Within 
the proposed rule, we limited the scope of this provision to the Clean 
Water Act because that is the primary federal statute applicable to 
water quality and given the focus of this rule it satisfied our purpose 
to highlight the need for compliance with the Clean Water Act and to 
enhance coordination with the Clean Water Act authorities. See 80 FR 
44436, 44480 (Jul. 27, 2015). Upon further review, we find no reason to 
limit the scope of this provision to the Clean Water Act as it is 
equally important that the permittee comply with all applicable laws.
    As discussed in Part IV, above, in response to general comments 
about direct enforcement of water quality standards we have added 
paragraph (i) to final rule Sec.   773.17. This paragraph adds a 
condition whereby the permittee must comply with all effluent 
limitations and conditions in any National Pollutant Discharge 
Elimination System permit issued for their operation by the appropriate 
authority under the Clean Water Act. As we explained in Part IV of the 
preamble,

[[Page 93125]]

the addition of this required permit condition and the revised rule 
text at 30 CFR 816.42 supports our longstanding regulatory requirement 
that coal mining operations must comply with the effluent limitations 
prescribed by Clean Water Act authorities in NPDES permits under 
section 402 of the Clean Water Act.\222\ In combination, these 
revisions are intended to ensure that violations of effluent 
limitations are violations of the SMCRA permit, and therefore are 
enforceable by the SMCRA regulatory authority.
---------------------------------------------------------------------------

    \222\ 33 U.S.C. 1342.
---------------------------------------------------------------------------

Section 773.20: What actions must the regulatory authority take when a 
permit is issued on the basis of inaccurate information?

    Under proposed Sec.  780.19(k), a permit issued on the basis of 
what the regulatory authority later determines to be substantially 
inaccurate baseline information would be void from the date of issuance 
and have no legal effect. Proposed paragraph (k) also would have 
required that the permittee cease mining-related activities and 
immediately begin to reclaim the disturbed area upon notification by 
the regulatory authority that the permit is void.
    Some commenters opposed proposed Sec.  780.19(k) on the basis that 
it deprived permittees of their rights without due process and that the 
phrase ``substantially inaccurate'' was too subjective, vague, poorly 
defined, essentially unlimited in scope, and difficult to enforce. One 
commenter alleged that proposed paragraph (k) was unreasonable because 
it did not consider whether the inaccuracy was intentional or had any 
material impact. Another commenter characterized the proposed paragraph 
as an unauthorized punitive provision that lacks any statutory support. 
According to that commenter, section 521(a)(4) of SMCRA \223\ provides 
the sole circumstances under which a SMCRA permit may be revoked--and 
then only for a pattern of violations.
---------------------------------------------------------------------------

    \223\ 30 U.S.C. 1271(a)(4).
---------------------------------------------------------------------------

    The commenter further alleged that the explanation in the preamble 
that proposed Sec.  780.19(k) is necessary to avoid or minimize the 
environmental harm that could result from initiation or continuation of 
an operation approved on the basis of inaccurate baseline information 
constitutes flawed reasoning because proposed paragraph (k) does not 
require any connection between the inaccurate baseline information and 
environmental harm--it merely presumes harm without a sufficient 
foundation. According to the commenter, the sanction (permit 
nullification) is disproportionately harsh compared to the lesser 
sanctions and penalties that section 521 of SMCRA \224\ authorizes for 
violations that are causing actual harm on the ground. The commenter 
noted that, unlike proposed paragraph (k), section 521 affords the 
permittee due process with respect to the sanctions and penalties that 
it authorizes. Finally, the commenter urged that we rely upon the 
regulatory authority's power to order revision of a permit under 
section 511 of SMCRA \225\ to address legitimate concerns with permits 
that have been issued.
---------------------------------------------------------------------------

    \224\ 30 U.S.C. 1271.
    \225\ 30 U.S.C. 1261.
---------------------------------------------------------------------------

    Several commenters expressed concern that adoption of proposed 
Sec.  780.19(k) would create uncertainty as to the validity of the bond 
posted for the permit. One commenter suggested that the rule should be 
revised to specify that the permit would be revoked rather than voided, 
a change that the commenter indicated would resolve uncertainty about 
the status of the bond. Several commenters also expressed concern that 
because the permit would be considered null and void from the date of 
issuance, the former permittee theoretically could be subject to 
enforcement action for mining without a permit during the time between 
permit issuance and permit nullification.
    One commenter thought that we had already addressed this issue in 
the regulations at Sec. Sec.  773.21 through 773.23 governing 
improvidently issued permits. That is not the case, however, because 
those regulations apply only to the permit eligibility criteria of the 
applicable regulations implementing section 510(c) of SMCRA; \226\ 
i.e., an improvidently issued permit is a permit that should not have 
been issued because, at the time of permit issuance, the permittee or 
operator owned or controlled a surface coal mining and reclamation 
operation with an unabated or uncorrected violation. See 30 CFR 
773.21(a). Another commenter suggested that we replace proposed 
paragraph (k) with regulations analogous to those that apply to 
improvidently issued permits. However, this commenter, like several 
other commenters urged us to limit their applicability to situations in 
which information has been falsified or the applicant intentionally 
submits inaccurate or incomplete data.
---------------------------------------------------------------------------

    \226\ 30 U.S.C. 1260(c).
---------------------------------------------------------------------------

    After evaluating the comments received, we have decided not to 
adopt proposed Sec.  780.19(k). Instead, as suggested by one commenter, 
we are replacing the permit nullification provisions of that paragraph 
with procedures and requirements analogous to those that apply to 
improvidently issued permits under Sec. Sec.  773.21 through 773.23. 
This approach will afford the permittee ample due process, as urged by 
numerous commenters. Consistent with the new approach, we are codifying 
the replacement provisions in section 773.20 rather than section 780.19 
because Part 773 contains the requirements for permit processing. 
However, we do not agree with those commenters who suggested that these 
regulations should apply only when information has been falsified or 
when the applicant intentionally submits inaccurate or incomplete data. 
The purpose of final Sec.  773.20 is to minimize both the possibility 
that mining conducted under permits approved on the basis of inaccurate 
information could result in environmental harm and the extent of that 
harm. The reason for the inaccuracy of the information is not relevant 
to attainment of this purpose. Thus, limiting Sec.  773.20 to 
situations in which permit application information was intentionally 
falsified would be counterproductive and inconsistent with the purpose 
of this section.
    We also disagree with the comment that section 521(a)(4) of SMCRA 
provides the sole circumstances under which a SMCRA permit may be 
revoked. As discussed in the preamble to the rule concerning 
improvidently issued permits,\227\ the U.S. Court of Appeals for the 
D.C. Circuit has held that SMCRA provides both express and implied 
authority for the suspension or rescission of improvidently issued 
permits:
---------------------------------------------------------------------------

    \227\ 65 FR 79583-79584 and 79628 (Dec. 19, 2000).

    While it is true that section 510(c) does not expressly provide 
for suspension or rescission of existing permits, the IFR [interim 
final rule] rescission and suspension provisions reflect a 
permissible exercise of OSM's statutory duty, pursuant to section 
201(c)(1) of SMCRA, to ``order the suspension, revocation, or 
withholding of any permit for failure to comply with any of the 
provisions of this chapter or any rules and regulations adopted 
pursuant thereto.'' 30 U.S.C.[ ] 1211(c). The IIP [improvidently 
issued permit] provisions simply implement the Congress's general 
directive to authorize suspension and rescission of a permit ``for 
failure to comply with'' a specific provision of SMCRA--namely, 
section 510(c)'s permit eligibility condition. In addition, apart 
from the express authorization in section 1211(c), OSM retains 
``implied'' authority to suspend or rescind improvidently provided 
permits

[[Page 93126]]

because of its express authority to deny permits in the first 
instance.\228\
---------------------------------------------------------------------------

    \228\ Nat'l Mining Ass'n v. Dep't of the Interior, 177 F.3d 1,9 
(D.C. Cir. 1999) (``NMA v. DOI II'').

    The same rationale applies to final Sec.  773.20 because it 
authorizes suspension or rescission of a permit for failure to comply 
with a specific provision of SMCRA; i.e., the prohibition in section 
510(b)(1) \229\ against approval of a permit application unless the 
regulatory authority finds in writing that ``the permit application is 
accurate and complete and that all the requirements of this Act and the 
State or Federal program have been complied with.'' Similarly, under 
the rationale set forth by the court, the regulatory authority has 
implied authority under SMCRA to suspend or rescind permits issued on 
the basis of inaccurate information because the regulatory authority 
has the authority to deny the permit in the first instance.
---------------------------------------------------------------------------

    \229\ 30 U.S.C. 1260(b)(1).
---------------------------------------------------------------------------

    We further disagree with the comment that described the proposed 
paragraph as duplicative and unnecessary because states already have 
effective administrative processes in place to scrutinize data and 
address issues. We applaud the administrative processes that states 
have put in place as safeguards against the approval of permit 
applications with inaccurate baseline information. However, no process 
is perfect. Final Sec.  773.20 provides a mechanism to address 
defective permits that slip through those safeguards.
    Paragraph (a) of Sec.  773.20 provides that the regulatory 
authority must initiate action that could lead to suspension or 
rescission of the permit whenever the regulatory authority discovers 
that the permit was issued on the basis of what later turns out to be 
inaccurate baseline information. In response to commenters' concerns 
that the ``substantially inaccurate'' threshold in proposed Sec.  
780.19(k) was too subjective and too broad in scope, we added a proviso 
that Sec.  773.20(a) applies only if the information is inaccurate to 
the extent that it would invalidate one or more of the findings 
required for permit application approval under Sec.  773.15 or other 
provisions of the regulatory program.
    Paragraphs (b) through (d) of Sec.  773.20 are a streamlined 
version of the requirements and procedures in 30 CFR 773.21 through 
773.23 pertaining to improvidently issued permits. We have adapted 
those requirements and procedures as appropriate, discarding provisions 
that are unique to improvidently issued permits. We have replaced the 
references to the administrative review procedures of 43 CFR 4.1370 
through 4.1377, which apply only to improvidently issued permits, with 
references to 30 CFR part 775, which contains administrative and 
judicial review provisions pertinent to decisions on permits. In 
addition, we established a uniform 60-day notice period for proposed 
suspensions and rescissions, rather than adopting the 60-day notice 
period for proposed suspensions and 120-day notice period for proposed 
rescissions set forth in Sec.  773.22(b) and (c). We find that there is 
no purpose or need for the longer notice period for proposed 
rescissions, particularly when the purpose of Sec.  773.20 is to 
minimize any environmental harm that may result from the issuance of 
permits on the basis of inaccurate information. Finally, in 30 CFR 
773.20 (c) and (d), we provide a mechanism through which the permittee 
can avoid permit suspension or rescission by providing updated 
information and submitting an application to revise the permit as 
needed to correct the deficiency. We are adopting this mechanism in 
part because of comments urging us to allow the permittee to take 
corrective action instead of requiring nullification of the permit. As 
the commenters noted, permit nullification would be disproportionately 
harsh compared to the sanctions and penalties that SMCRA and the 
regulations impose for performance standard violations. Providing an 
alternative to permit suspension or rescission also is responsive to a 
comment that we should allow use of the permit revision procedures of 
section 511 of SMCRA to remedy the deficiency.
    Paragraph (e) of Sec.  773.20 sets forth the actions that the 
permittee must take if a permit is suspended or rescinded. Paragraph 
(e) is similar to, and based upon 30 CFR 843.13(c), which specifies the 
actions that the permittee must take if a permit is suspended or 
revoked for a pattern of violations. Paragraph (e)(1) provides that, if 
the permit is suspended, the permittee must cease all surface coal 
mining operations under the permit and complete all affirmative 
obligations specified in the suspension order within the time 
established in that order. It also specifies that the regulatory 
authority must rescind the permit if the permittee does not complete 
those obligations within the time specified. Paragraph (e)(2) provides 
that, if the permit is rescinded, the permittee must cease all surface 
coal mining operations under the permit and complete reclamation within 
the time specified in the rescission order.
    Paragraph (f) of Sec.  773.20 addresses commenter concerns about 
the impact on bond coverage. Paragraph (f)(1) provides that, if the 
regulatory authority suspends or rescinds a permit, the bond posted for 
the permit will remain in effect until the permittee completes all 
reclamation obligations under the reclamation plan approved in the 
permit and obtains bond release under Sec. Sec.  800.40 through 800.44. 
Paragraph (f)(2) provides that the regulatory authority must initiate 
bond forfeiture proceedings under Sec.  800.50 if the permittee does 
not complete all reclamation obligations within the time specified in 
the permit rescission order.

D. Part 774--Revision; Renewal; Transfer; Assignment, or Sale of Permit 
Rights; Post-Permit Issuance Requirements

Section 774.9: Information Collection

    Section 774.9 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 774.

Section 774.10: When must the regulatory authority review a permit 
after issuance?

    We are adopting Sec.  774.10 as proposed, with the exception that 
we are reorganizing paragraph (a) and adding a new paragraph (a)(2), 
which replaces proposed Sec.  780.16(c)(5). In the final rule, we are 
re-designating the introductory text of proposed Sec.  774.10(a) as 
paragraph (a)(1). In concert with this change, we are re-designating 
proposed paragraphs (a)(1) through (4) as paragraphs (a)(3) through 
(6).
    Proposed Sec.  780.16(c)(5) required that the permittee 
periodically evaluate the impacts of the operation on fish, wildlife, 
and related environmental values in the permit and adjacent areas and 
then use that information to modify the operations to avoid or minimize 
adverse effects. Several commenters requested that we provide guidance 
or specify the frequency and rigor of the mandated periodic evaluation 
of an operation's impact on fish and wildlife. Additionally, commenters 
requested clarification as to whose responsibility it would be to 
complete this evaluation. Some commenters opposed this paragraph 
because it could be interpreted as requiring that the permittee modify 
operations even when the adverse effects on wildlife are beyond the 
control of the permittee.

[[Page 93127]]

Other commenters found this paragraph to be unnecessarily disruptive in 
that it would undermine the certainty provided by approval of the 
permit application. In response to these comments, we are not adopting 
proposed Sec.  780.16(c)(5). Instead, we are including a modified 
version of that paragraph within the final rule as Sec.  774.10(a)(2). 
Under the final rule, evaluation of the impacts of the operation on 
fish, wildlife, and related environmental values will be part of the 
midterm permit review conducted by the regulatory authority and thus 
will be the responsibility of the regulatory authority. This timing and 
the shift in responsibility from the permittee to the regulatory 
authority is appropriate because the purpose of the midterm permit 
review is to determine whether the assumptions and predictions upon 
which permit application approval was based have proven reasonably 
accurate. If the assumptions and predictions are not accurate, the 
regulatory authority will issue an order to the permittee to revise the 
permit to ensure compliance with the regulatory program. In this case, 
if the regulatory authority determines, as a result of the midterm 
permit review, that the fish and wildlife protection and enhancement 
plan approved in the permit is not effectively minimizing disturbances 
and adverse impacts on fish, wildlife, and related environmental values 
to the extent possible using the best technology currently available, 
as required by section 515(b)(24) of SMCRA,\230\ the regulatory 
authority will issue an order to the permittee to revise the permit to 
update the technology required or make other changes necessary to 
comply with this provision of the Act. The regulatory authority has the 
discretion to determine the extent of the evaluation conducted as part 
of the midterm permit review.
---------------------------------------------------------------------------

    \230\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

Section 774.15: How may I renew a permit?

    We proposed within paragraph (b)(2)(vii), relative to application 
requirements and procedures, to require an analysis of the monitoring 
results under Sec. Sec.  816.35 through 816.37 or Sec. Sec.  817.35 
through 817.37, relating to groundwater, surface water, and biological 
condition of streams and an evaluation of the accuracy and adequacy of 
the determination of the probable hydrologic consequences of mining 
prepared under Sec.  780.20 or Sec.  784.20 of this chapter. We also 
proposed at paragraph (b)(2)(viii) to require an update of the 
determination of the probable hydrologic consequences of mining 
prepared under Sec.  780.20 or Sec.  784.20, if needed, or 
documentation that the findings in the existing determination are still 
valid.
    In addition, proposed paragraph (c)(1), relating to the approval 
process, provided that a complete and accurate renewal application will 
be approved unless certain findings are made. We proposed one such 
finding at (c)(1)(viii), which would allow a regulatory authority to 
disapprove an application for renewal if the regulatory authority 
determined, based on an analysis of the monitoring results or the 
updated determination of the probable hydrologic consequences of 
mining, that the finding it originally made under Sec.  773.15(e)--the 
operation is designed to prevent material damage to the hydrologic 
balance outside the permit area--is no longer accurate.
    Several commenters objected to proposed requirements at 
(b)(2)(vii), (b)(2)(viii), and (c)(1)(viii). These commenters expressed 
concern that the proposed requirements would compromise the right of 
successive renewal and recommended the deletion of these regulations. 
The commenters also stated that there are existing opportunities to 
review data as it relates to the probable hydrologic consequences, and 
it is unnecessary to couple a data review requirement with permit 
renewal. After reviewing the comments, we agree with the commenters and 
have deleted the proposed requirements at (b)(2)(vii), (b)(2)(viii), 
and (c)(1)(viii) from the final rule.

E. Part 777--General Content Requirements for Permit Applications

Section 777.1: What does this part cover?

    We are finalizing Sec.  777.1 as proposed. We received no comments 
on this section.

Section 777.11: What are the format and content requirements for permit 
applications?

    Proposed paragraph (a)(3) of this section would have required that 
all permit applications be filed in an electronic format prescribed by 
the regulatory authority unless the regulatory authority grants an 
exception for good cause. One commenter supported this proposal because 
it would facilitate the acquisition and transfer of permit files by 
coalfield residents via the internet and avoid the need for those 
residents to make a lengthy trip to the office of the regulatory 
authority and copy sometimes unwieldy documents. However, other 
commenters alleged that adoption of this provision would require major 
changes in state regulatory programs at great expense for both the 
regulatory authority and the applicant. Several commenters 
characterized the proposed requirement as an unfunded mandate on the 
states unless we are prepared to award grants to states to fully fund 
the infrastructure needed for electronic permitting. One commenter 
acknowledged that a fully implemented electronic permitting system may 
facilitate transfer of application documents, thus avoiding copying and 
mailing costs. However, the commenter noted, these savings may be 
illusory as the regulatory authority likely also would request multiple 
hard copies. Some commenters argued that decisions on electronic 
permitting should be left to the state regulatory authorities. Another 
commenter alleged that SMCRA provides no authority for us to prescribe 
the format of permit applications.
    For the reasons set forth in the preamble to the proposed 
rule,\231\ we continue to support and encourage the use of electronic 
permitting. However, we recognize that state regulatory authorities 
differ in their capability to implement electronic permitting and that 
implementation may not be cost-effective or practicable in all cases. 
In addition, we cannot guarantee availability of the funding needed to 
implement electronic permitting. Therefore, we have not adopted Sec.  
777.11(a)(3) as proposed and have removed reference to any requirement 
that permit applications be filed in an electronic format. Therefore, 
the final rule text is substantially similar to previous regulation 
Sec.  777.11. As finalized, paragraph (a)(3) is substantively identical 
to section 507(b) of SMCRA,\232\ which provides that ``[t]he permit 
application shall be submitted in a manner satisfactory to the 
regulatory authority.''
---------------------------------------------------------------------------

    \231\ See 80 FR 44436, 44481 (Jul. 27, 2015).
    \232\ 30 U.S.C. 1257(b).
---------------------------------------------------------------------------

    Several commenters provided suggestions on how large map files, 
professional certifications, and verification of submittals could be 
submitted electronically. One commenter recommended that all systems 
include a common system component, which could allow a company to use a 
central system that can easily be transferred to a common file type for 
delivery across multiple states. Another commenter urged that digital 
permit files be available for download on a document-by-document

[[Page 93128]]

basis because persons with computers that have slow processor speeds 
may not be able to open permits in large file format without having 
their computers crash repeatedly. The commenter also recommended that 
digital permit files be available on both compact disc and flash drive 
and that digitally submitted maps, plans, and cross-sections be made 
available in both high-definition and low-definition versions. We 
recognize the merit of these suggestions and recommendations. However, 
we are not including them in the final rule because final paragraph 
(a)(3) does not require use of electronic permitting. Regulatory 
authorities electing to require the submission of permit applications 
electronically may wish to consider these recommendations.

Section 777.13: What requirements apply to the collection, analysis, 
and reporting of technical data and to the use of models?

Final Paragraph (a): Technical Data and Analyses
    In paragraph (a)(1), we proposed to add requirements for the 
submission of certain data, such as metadata and field sampling sheets 
associated with the technical data submitted in the permit application. 
Several commenters asserted that requiring materials submitted to the 
regulatory authority (including technical data, maps, plans and cross 
sections) to be accompanied by metadata, where appropriate, was a good 
idea and provided valuable information to the regulatory authority. 
However, several regulatory authorities opined that the requirements 
under Sec.  777.13, including providing metadata would create an undue 
hardship for the regulatory authority by requiring additional funds and 
personnel to log, track, and review the data. We are aware that we will 
be requiring the operator to collect additional data and submit that 
data to the regulatory authority, but the data is necessary to 
establish quality, comprehensive baseline data, along with mining and 
post-mining data that will help ensure there are no adverse impacts 
from coal mining operation that would cause material damage to the 
hydrologic balance outside the permit area. As explained further in the 
proposed rule, metadata, which consists of data describing the contents 
and context of data files, greatly increases the usefulness of the 
original data by providing information about how, where, when, and by 
whom the data were collected and analyzed.\233\
---------------------------------------------------------------------------

    \233\ 80 FR 44436, 44481 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several commenters opined that the requirement within proposed 
paragraph (a) about submitting the results of the laboratory quality 
assurance and quality control procedures to the regulatory authority 
was vague and did not include the relevant information necessary to 
determine the level of quality assurance and quality control (level I, 
II, III, or IV). In addition, the commenters claimed the requirement 
for electronically submitted data including the identification of any 
data transformations would require significant effort by the 
laboratories that perform this work. The commenters opined the 
transformed data are typically identified by the laboratory through the 
use of flags within the final laboratory report and because these flags 
are generated by the laboratory the flags are likely to differ from lab 
to lab. Our intent with this requirement is to ensure the quality 
assurance and quality control data, regardless of the level, is 
submitted to the regulatory authority so that they can review the data. 
Furthermore, transformed data should be noted by the laboratory. 
However, we are not requiring the codes used to denote the transformed 
data to be the same for all laboratories. Therefore, based on these 
comments, we did not make any changes to proposed paragraph (a), 
pertaining to the submission of laboratory quality assurance and 
quality control data, in the final rule.
    However, for the purpose of clarification, we added additional 
language to the final rule about water quality field sampling sheets 
that are required to be submitted to the regulatory authority. In the 
proposed rule, we required field sheets for water quality samples from 
wells.\234\ It was our intent that a permittee submit to the regulatory 
authority sample field sheets for all water quality samples collected 
from surface water and groundwater monitoring. Our intent is supported 
by proposed paragraph (b) where we reference sampling and analysis of 
surface water and groundwater. To clarify this we added language to 
final paragraph (a) expressly requiring submission of the field 
sampling sheets for each surface-water sample collected and for each 
groundwater sample collected from wells, seeps, and springs. We added 
``seeps and springs'' to the list of sample field sheets we require a 
permittee to submit to the regulatory authority because seeps and 
springs are commonly monitored to assess water quality of groundwater,
---------------------------------------------------------------------------

    \234\ 80 FR 44436, 44592 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (b): Sampling and Analyses of Groundwater and Surface 
Water
    In paragraph (b) we proposed to add a requirement that sampling and 
analyses of surface water and groundwater be conducted according to the 
methodology in 40 CFR parts 136 and 434. Several commenters asserted 
that some of the methodology in 40 CFR parts 136 and 434 is not 
applicable to the type of sampling and analysis conducted at coal mines 
and the operator should be allowed to use a scientifically-valid 
methodology acceptable to the regulatory authority. We agree. To 
address this comment, we revised paragraph (b) to clarify that all 
sampling and analyses of groundwater and surface water be performed to 
satisfy all the requirements of this subchapter and that they are 
conducted according to the methodology in 40 CFR parts 136 and 434; or 
scientifically-defensible methodology acceptable to the regulatory 
authority, in coordination with any agency responsible for 
administering or implementing a program under the Clean Water Act that 
requires water sampling and analysis. The addition of (b)(2) takes a 
reasonable approach to sampling and analyses of surface water and 
groundwater requirements of this subchapter.
    Additionally, we received several comments from industry and 
regulatory authorities recommending that we remove the requirements to 
provide surface water and groundwater sampling field sheets to the 
regulatory authority. Instead, these commenters suggested that the 
regulatory authorities should be able to use their discretion to 
request them as needed. We disagree. Surface water and groundwater 
sampling field sheets contain the metadata regarding field parameter 
measurements and methods used in the collection of water quality 
samples of both surface water and groundwater. Meta data contained on 
sampling field sheets, such as, calibration information for instruments 
used to measure field parameters and information concerning the 
sampling methods used to collect water quality samples are necessary to 
accurately assess the water quality data. Further, several commenters 
suggested that sending groundwater sampling field sheets to the 
regulatory authority does not enhance the review process because 
applicants already provide boring logs and well construction diagrams 
which include information concerning the depth of the well screens for 
all monitoring wells included as a part of the permit application. In 
addition, the commenters asserted that descriptions

[[Page 93129]]

of the sampling methodology for all groundwater samples are included in 
detail within the hydrogeology sections of the SMCRA permit application 
and that the static water level collected prior to any purging should 
be considered sufficient for understanding whether the well screen was 
or was not fully saturated on the sample date. We disagree with the 
commenters' assertions about the lack of importance of groundwater 
field sheets when reviewing hydrologic data from the well. We are 
requiring groundwater sampling sheets be submitted to the regulatory 
authority because the groundwater sampling sheets contain information 
about instrument calibration, well purging, and sample collection that 
are necessary to thoroughly review water-quality data and are not 
included in the information referenced in the comment. Therefore, no 
changes were made to the final rule in response to this comment.
Final Paragraph (c): Geological Sampling and Analysis
    We received one comment about proposed paragraph (c). The commenter 
opined that by requiring all geologic sampling and analysis to be 
conducted using a scientifically valid mythology, it would result in 
increases in costs and time for permit preparation and approval. We 
agree that increases in costs and time for permit preparation and 
approval may occur; however any cost increase is outweighed by the 
added benefit of better permitting decisions using comprehensive and 
high quality geologic data. Therefore, we made no changes to paragraph 
(c) in response to this comment. However, in response to a federal 
agency comment, in the final rule we use the term ``scientifically-
defensible methodology,'' instead of the term ``scientifically-valid 
methodology,'' as proposed.
Final Paragraph (d): Use of Models
    A few commenters requested an explanation for our alleged aversion 
to the use of models to characterize baseline hydrologic condition 
within Sec.  777.13(d) when elsewhere in the rule we allow models to 
evaluate ecological function of streams through the use of 
bioassessment protocols. These commenters assert that this alleged 
disparity creates regulatory inconsistency and should be addressed for 
clarity. These commenters mischaracterize our position. In final 
paragraph (d), we allow for the use of models as long as they 
incorporate site specific data to calibrate each model. Contrary to 
commenters' assertions, we also require site specific data for our 
evaluation of ecological function; therefore our regulations are 
consistent.
    We also proposed to modify the existing provisions by adding 
paragraph (d)(2), which would require that all models be calibrated 
using actual, site-specific data and that they be validated for the 
region and ecosystem in which they will be used. By adding these 
additional requirements we intend to improve the accuracy and validity 
of models and promote better data collection and analysis procedures to 
ensure more informed permitting decisions. Several commenters from 
industry and regulatory authorities recommended that we provide 
regulatory authorities sufficient discretion to allow for professional 
judgment concerning the necessity for site-specific data and the data 
requirements to process models. Also, several commenters opined that 
using site-specific data for calibration may not be possible because it 
may be costly and the regulatory authority does not have control of 
activities outside of coal mining permit, thus making it difficult to 
include that site specific data. We disagree because it is important to 
use actual site-specific data to calibrate the models. A model that is 
calibrated using site-specific data is more likely to provide better 
modeling results.
    Therefore, the final rule adopts Sec.  777.13 as proposed, with 
minor changes as explained herein to paragraphs (a), (b), and (d).

Section 777.14: What general requirements apply to maps and plans?

    We revised Sec.  777.14 from the proposed section by making 
editorial revisions to clearly distinguish between requirements that 
apply to maps and plans for all operations and those that apply only to 
maps and plans for operations in existence before the effective date of 
a permanent regulatory program for the state in which the operation is 
located. Specifically, paragraph (a) applies to maps and plans for all 
operations, while paragraph (b) applies only to maps and plans for 
operations in existence before the effective date of a permanent 
regulatory program for the state in which the operation is located. 
This distinction is consistent with the preamble to this rule as 
originally promulgated, which states that ``[t]he concept of 
delineation of phases of mining on application maps relates to key 
dates in the interim [initial] and permanent regulatory programs 
establishing different periods and levels of regulation under the 
Act.'' See 44 FR 15017 (Mar. 13, 1979).\235\
---------------------------------------------------------------------------

    \235\ The contents of 30 CFR 777.14 were originally published on 
March 13, 1979 as 30 CFR 771.23(e) before their redesignation as 30 
CFR 777.14 on Sept. 28, 1983. The 1979 preamble incorrectly refers 
to 30 CFR 771.23(e) as 30 CFR 771.21(e).
---------------------------------------------------------------------------

    In the final rule, we removed the first sentence of previous 
paragraph (b) because it is poorly worded, unnecessary, duplicative of 
the remainder of paragraph (b), and could erroneously be interpreted as 
applying to maps and plans for all operations, not just maps and plans 
for operations in existence before the effective date of a permanent 
regulatory program for the state in which the operation is located. We 
also revised paragraph (b) to clarify that its provisions apply only 
when applicable; i.e., that there is no need to provide maps and plans 
showing each period listed in paragraphs (b)(1) through (3) if the 
operations was not in existence during one or more of those periods.
    Previous paragraph (b)(4) required that maps and plans show those 
portions of the operation where surface coal mining operations occurred 
after the estimated date of issuance of a permit under the approved 
regulatory program. This paragraph is unnecessary because the map of 
the proposed permit area identifies the lands upon which surface coal 
mining and reclamation operations will take place after issuance of the 
permit. Furthermore, previous paragraph (b)(4) inappropriately refers 
to surface coal mining operations that occurred after the estimated 
date of permit issuance. This language is inconsistent with section 
506(a) of SMCRA,\236\ which specifies that ``no person shall engage in 
or carry out on lands within a State any surface coal mining operations 
unless such person has first obtained a permit. . . .'' Therefore, 
final section 777.14 does not include a counterpart to previous 
paragraph (b)(4).
---------------------------------------------------------------------------

    \236\ 30 U.S.C. 1256(a).
---------------------------------------------------------------------------

Section 777.15: What information must my application include to be 
administratively complete?

    We are finalizing Sec.  777.15 as proposed. We received no comments 
on this section.

F. Part 779--Surface Mining Permit Applications--Minimum Requirements 
for Information on Environmental Resources and Conditions

Section 779.1: What does this part do?

    With the exception of altering the title of this section for 
clarity, we are

[[Page 93130]]

finalizing section 779.1 as proposed. We received no comments on this 
section.

Section 779.2: What is the objective of this part?

    We are finalizing Sec.  779.2 as proposed. We received no comments 
on this section.

Section 779.4: What responsibilities do I and government agencies have 
under this part?

    We are finalizing Sec.  779.4 as proposed. We received no comments 
on this section.

Section 779.10: Information Collection

    Section 779.10 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 779.

Previous Sec.  779.11: General Requirements

    We have removed and reserved previous Sec.  779.11 for the reasons 
discussed in the preamble to the proposed rule.\237\
---------------------------------------------------------------------------

    \237\ 80 FR 44436, 44482 (Jul. 27, 2015).
---------------------------------------------------------------------------

Previous Sec.  779.12: General Environmental Resources Information

    We have removed and reserved previous Sec.  779.11 for the reasons 
discussed in the preamble to the proposed rule.\238\
---------------------------------------------------------------------------

    \238\ Id.
---------------------------------------------------------------------------

Section 779.17: What information on cultural, historic, and 
archeological resources must I include in my permit application?

    We are finalizing Sec.  779.4 as proposed. We received no comments 
on this section.

Section 779.18: What information on climate must I include in my permit 
application?

    One commenter requested that we add language requiring climate data 
and analysis to this section. We did not add this requirement because a 
requirement to include a statement of the climatic factors, including 
average seasonal precipitation, direction and velocity of winds, and 
temperature ranges, is already required under final rule Sec. Sec.  
779.18 and 783.18 and additional information under this section would 
not add meaningful information.

Section 779.19: What information on vegetation must I include in my 
permit application?

    Several commenters, including the U.S. Forest Service and other 
federal agencies, expressed support for the proposed changes to this 
section. In particular, these commenters voiced strong support for the 
use of native species rather than introduced species because the use of 
native species would minimize adverse effects on fish and wildlife.
    Other commenters opposed the proposed revisions to Sec.  779.19 as 
unnecessary and excessively burdensome. These commenters urged us not 
to adopt the proposed revisions and instead simply reaffirm the 
regulatory authority's discretion to require vegetation information as 
needed. We disagree that the previous regulations were adequate. The 
previous regulations provided the regulatory authority with complete 
discretion in deciding whether to require submission of vegetation 
information as part of the permit application. In view of other changes 
to our regulations to generally require revegetation with native 
species and reestablishment of native plant communities (with certain 
exceptions), discretionary submission of premining vegetation 
information is no longer appropriate. The vegetation information 
required by final section 779.19 is essential to fully implement the 
revegetation requirements of section 515(b)(19) of SMCRA,\239\ which 
provides that surface coal mining operations must establish ``a 
diverse, effective, and permanent vegetative cover of the same seasonal 
variety native to the area of land to be affected and capable of self-
regeneration and plant succession at least equal in extent of cover to 
the natural vegetation of the area.'' To comply with this requirement, 
both the applicant and the regulatory authority need to know the 
vegetative cover native to the area of land to be affected and the 
extent of cover of the natural vegetation of the area. The information 
must be in sufficient detail to assist in preparation of the 
revegetation plan under Sec.  780.12(g) and to provide a baseline for 
comparison with postmining vegetation, as final paragraph (b)(1) 
requires. In addition, the information required by Sec.  779.19 will 
assist in implementation of section 508(a)(2) of SMCRA,\240\ which 
requires that the reclamation plan in each permit application identify 
both the premining land uses and the capability of the land prior to 
any mining to support a variety of uses.
---------------------------------------------------------------------------

    \239\ 30 U.S.C. 1265(b)(19).
    \240\ 30 U.S.C. 1258(a)(2).
---------------------------------------------------------------------------

    In response to comments that the proposed rule was unnecessary and 
excessively burdensome, we reevaluated each element of the proposed 
rule and narrowed the requirements down to those that we determined to 
be necessary to ensure revegetation and reclamation of mine sites in 
accordance with SMCRA. We also reorganized and restructured the rule to 
improve clarity.
    Proposed paragraph (a)(1) would have required that the applicant 
identify, describe, and map existing vegetation types and plant 
communities on the proposed permit and adjacent areas and within any 
proposed reference areas. Several commenters asserted that we lack the 
authority under SMCRA to require vegetation information for the 
adjacent area. While we do not agree with that assertion, we determined 
that vegetation information for the adjacent area typically would not 
be useful either to the applicant in preparing the reclamation and 
revegetation plans for the permit or to the regulatory authority in 
reviewing and processing the permit application. Therefore, final 
paragraph (a) does not require vegetation information for the adjacent 
area. The regulatory authority, however, may use its discretion to 
require vegetation information for the adjacent area.
    Several commenters questioned the value of the vegetation 
information requirements in situations where reestablishment of native 
plant communities would be inconsistent with the postmining land use. 
We did not provide a waiver under these circumstances for several 
reasons. First, this rule is intended to more fully implement section 
508(a)(2) of SMCRA,\241\ which requires that the permit application 
include a statement of ``the capability of the land prior to any mining 
to support a variety of uses giving consideration to soil and 
foundation characteristics, topography, and vegetative cover.'' 
Descriptions of the vegetative communities that exist on the site, as 
required by final paragraph (a), and of the native vegetation and plant 
communities typical of that area in the absence of human alterations, 
as required by final paragraph (c), are an important part of the 
determination of the capability of the land. Second, there is no 
guarantee that the approved postmining land use will be implemented 
before expiration of the revegetation responsibility period or even 
that it will be implemented at all. Therefore, our final revegetation 
rules at Sec. Sec.  780.12(g) and 816.111 through 816.116 require 
planting and reestablishment of native plant communities on mined lands 
unless the approved postmining land use is implemented before the 
entire bond amount for the area has been fully

[[Page 93131]]

released under Sec. Sec.  800.40 through 800.43. Third, sites with 
agricultural, industrial, commercial, residential, or recreational 
postmining land uses that may be incompatible with restoration of 
native plant communities overall often contain small areas that can 
(and, under this final rule, must) be planted with native species to 
provide some wildlife habitat.
---------------------------------------------------------------------------

    \241\ 30 U.S.C. 1258(a)(2).
---------------------------------------------------------------------------

    A commenter on proposed paragraph (a) asked that we specify how an 
applicant should select appropriate reference areas. Other commenters 
interpreted the proposed rule as always requiring use of reference 
areas and objected to this alleged requirement. We did not intend to 
require use of a reference area. We worded final paragraph (a) in a 
manner that clarifies that an applicant may use a reference area for 
purposes of determining revegetation success under Sec.  816.116, but 
that use of a reference area is not required. We find it unnecessary to 
provide further regulatory instruction on selecting reference areas 
because selecting reference areas is a common scientific practice. 
Furthermore, selection of a reference area depends upon site-specific 
factors and the regulatory authority is the best resource for further 
guidance on that matter.
    Paragraph (b)(2) of the final rule, which we proposed as paragraph 
(a)(1), requires that the description and map of vegetation types and 
plant communities be adequate to evaluate whether the vegetation 
provides important habitat for fish and wildlife and whether the 
proposed permit area contains native plant communities of local or 
regional significance. Some commenters requested additional 
clarification about what would constitute a native plant community of 
``local or regional significance,'' while another commenter asked us to 
define ``plant community.'' We did not revise the rule in the manner 
that the commenters requested because ``plant community'' is a commonly 
understood scientific term and because the regulatory authority should 
have the latitude to determine what constitutes a plant community of 
local or regional significance. We encourage the regulatory authority 
to confer with state and federal agencies with responsibilities for 
fish and wildlife in making this determination. One potential resource 
for identifying native plant communities of local or regional 
significance is the Natural Heritage Network, a network of state 
programs that gather and disseminate biological information on species 
of conservation concern and natural plant communities.
    Several commenters expressed concern that the dominance of non-
native species of grasses and forbs and the presence of invasive or 
noxious species would make reestablishment of native plant communities 
challenging, if not impossible. As an example, one commenter provided 
results from the latest Natural Resources Conservation Service's 
National Resource Inventory survey showing that over 50 percent of the 
non-federal native grassland in North Dakota is impacted by non-native 
species and that non-native species cover at least 25 percent of the 
soil surface. The Natural Resources Conservation Service concluded that 
it is impossible to return a site to its historic plant community if 
Kentucky bluegrass comprises more than 30 percent of the vegetation at 
the site.\242\ The Natural Resources Conservation Service's finding 
supports our requirement to avoid non-native, invasive species in 
reclamation and illustrates the value of reestablishing the native 
plant communities unless introduced species are necessary for the 
postmining land use. The Natural Resource Inventory also concluded that 
``[n]on-native invasive plants negatively impact rangeland throughout 
the western United States by displacing desirable species, altering 
ecological and hydrological processes, reducing wildlife habitat, 
degrading systems, altering fire regimes, and decreasing 
productivity.'' \243\
---------------------------------------------------------------------------

    \242\ U.S. Dep't. of Agric. Natural Res. Conservation Service, 
Nation Resources Inventory Report on Non-native Invasive Plant 
Species; available at http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1254898.pdf. (last accessed on Nov. 1, 2016).
    \243\ Roger Shely et al. Invasive Plant Management on 
Anticipated Conservation Benefits: A Scientific Assessment,). 291-
336 (2011). Conservation Benefits of Rangeland Practices: 
Assessment, Recommendations, and Knowledge Gaps (D.D. Briske, ed.). 
U.S. Dep't of Agric., Natural Res. Conservation Serv. (2011).
---------------------------------------------------------------------------

    Commenters requested that we clarify the permissible amount of 
invasive species after the completion of reclamation, especially when 
invasive species are present prior to mining. In response, we added 
paragraph (b)(3) to the final rule. That paragraph requires the 
applicant to identify areas with significant populations of invasive or 
noxious species. Final paragraph (b)(3) provides the regulatory 
authority with the information necessary to determine whether there is 
a potential problem with non-native or noxious species and to decide on 
the appropriate steps to take, such as authorizing unique handling of 
the soil materials as described in Sec.  816.22(f)(1)(ii) of the final 
rule. Section 780.12(g)(1)(xi) of the final rule requires that the 
proposed revegetation plan describe measures that will be taken to 
avoid the establishment of invasive species on reclaimed areas and to 
control invasive species if they are established. The allowable amount 
of invasive species at the time of bond release will depend on multiple 
factors, which we discuss in the performance standards related to 
revegetation success in Sec. Sec.  816.111 through 816.116 of the final 
rule.
    In response to a comment from the U.S. Army Corps of Engineers to 
revise the rule to provide better protection for wetlands, we added 
paragraph (b)(4) to the final rule. That paragraph requires that the 
applicant delineate all wetlands and areas bordering streams that 
support, or are capable of supporting, hydrophytic or hydrophilic 
vegetation or vegetation typical of floodplains. Hydrophytic vegetation 
consists of plants that grow either partly or totally submerged in 
water, while hydrophilic vegetation consists of water-loving plants 
that grow along the margins and banks of rivers and streams. This 
vegetation is indicative of wetlands, which means that vegetation 
information of this nature will proved baseline data to assist in the 
identification and protection of wetlands. This provision also will 
facilitate implementation of Sec.  816.97(e) of the final rule, which 
requires use of the best technology currently available to avoid, 
restore, or replace wetlands and to enhance wetlands where practicable. 
Protection or restoration of wetlands is difficult in the absence of 
information about where those wetlands were originally located and what 
type of vegetation they supported. The requirement for information 
about vegetation bordering streams also will facilitate implementation 
of our stream assessment requirements in Sec.  780.19(c)(6) and our 
streamside vegetative corridor requirements of Sec.  816.57(d)(2)(iii).
    Commenters requested that we specify a timeframe for the 
requirement in proposed Sec.  779.19(a)(2) that the permit applicant 
identify the plant communities that would exist on the proposed permit 
area under conditions of natural succession. Some commenters requested 
that we specify whether the permit applicant must do this for each of 
the particular stages of succession or whether the requirement applies 
only to the climax community. One commenter noted that, given the 
various intensive land uses over the last 200 years and the presence of 
many non-native species, it could be very difficult to know what 
qualifies as ``natural succession'' and urged us to remove this 
requirement. As an example, the commenter questioned whether tallgrass 
prairie would be the

[[Page 93132]]

natural succession community in the Midwest. After evaluating these and 
other comments, we decided not to adopt proposed paragraph (a)(2). We 
replaced proposed paragraph (a)(2) with final paragraph (c), which 
provides that, if the vegetation on the proposed permit area has been 
altered by human activity, the applicant must describe the native 
vegetation and plant communities typical of the area in the absence of 
human alterations. This information should be readily available from 
historical references and may be inferred from surviving remnants of 
natural vegetation in the surrounding area, if those remnants are 
similar to the proposed permit area. The applicant and regulatory 
authority need this information to prepare and review the revegetation 
plan, which must be designed to restore native plant communities, as 
appropriate and consistent with the final rule.
    Proposed Sec.  779.19(b) would have required that the vegetation 
descriptions in the permit application adhere to the National 
Vegetation Classification Standard, while proposed paragraph (c) would 
have allowed use of other generally-accepted vegetation classification 
systems in lieu of the National Vegetation Classification Standard. In 
the preamble to the proposed rule, we invited comment on what other 
classification systems may exist. See 80 FR 44436, 44483 (Jul. 27, 
2015). We received a large number of comments in response to this 
request. Many commenters proposed to keep the systems already in use. 
Other commenters expressed support for the National Vegetation 
Classification Standard and stated that any alternatives should be 
evaluated based in part, on consistency with the National Vegetation 
Classification Standard approach.
    Some commenters opined that the National Vegetation Classification 
Standard is not the best method for classifying vegetation and that the 
decision as to what method to use should be left to the discretion of 
the regulatory authority. Another commenter opined that the regulation 
or preamble should provide direction as to what level of hierarchy in 
the National Vegetation Classification Standard is appropriate for 
applications for coal mining operations. Other commenters questioned 
why proposed paragraph (b) required use of the National Vegetation 
Classification Standard when proposed paragraph (c) allowed the 
regulatory authority to approve other classification systems. One 
commenter suggested revising proposed paragraph (c) by adding 
``provided that the alternative classification is accepted in the 
scientific community suitable for that state or region in which the 
proposed operation is located'' to reduce the potential for abuse of 
the discretion given here to the regulatory authority. Another 
commenter noted that some long-term mining operations may have 
existing, longstanding vegetation data systems and that it would be 
impractical to substitute a new system when the final rule comes into 
effect.
    After evaluating the comments received, we decided not to adopt 
proposed paragraphs (b) and (c). Instead, final paragraph (b)(1) 
provides that the description and map of vegetation types and plant 
communities required under paragraph (a) must be in sufficient detail 
to assist in preparation of the revegetation plan under Sec.  780.12(g) 
and to provide a baseline for comparison with postmining vegetation. 
The regulatory authority will determine which classification system 
best meets the requirements of paragraph (b)(1), other provisions of 
final Sec.  779.19, and the revegetation requirements of Sec. Sec.  
780.12(g) and 816.111 through 816.116. Furthermore, it is not clear 
that the National Vegetation Classification Standard is readily 
adaptable to preparation of descriptions of vegetation types and plant 
communities for purposes of SMCRA. In addition, we agree with those 
commenters who questioned the value of proposed paragraph (b) when 
proposed paragraph (c) would have allowed use of other classification 
systems.
    Proposed paragraph (d) would have required that the permit 
application include a discussion of the potential for reestablishing 
both the premining plant communities and the plant communities that 
would exist on the proposed permit area under conditions of natural 
succession. Some commenters alleged that proposed paragraph (d) would 
serve no purpose, at least in the Midwest where agricultural postmining 
land uses predominate. Because this final rule contains numerous 
requirements for use of native species in revegetation and for 
reestablishment of native plant communities, we do not agree that 
proposed paragraph (d) would serve no purpose. However, proposed 
paragraph (d) is not appropriate for Sec.  779.19, which merely 
requires baseline information on premining vegetation and historical 
plant communities. Nor is it necessary because determination of the 
potential for reestablishment of native plant communities currently or 
formerly found in the area is an implicit element of the revegetation 
plan required under Sec.  780.12(g) of this rule. Therefore, we are not 
adopting proposed paragraph (d) as part of this final rule.

Section 779.20: What information on fish and wildlife resources must I 
include in my permit application?

    Section 779.20 is intended to ensure that the permit applicant has 
the information needed to design the proposed mining operation in a 
manner that meets the fish and wildlife protection and enhancement 
requirements of the regulatory program. The regulatory authority also 
needs this information to evaluate the probable impacts of the proposed 
mining operation on fish, wildlife, and related environmental values 
for the proposed permit and adjacent areas and to determine whether the 
scope of the proposed fish and wildlife protection and enhancement plan 
is sufficient. Except as discussed below, we have adopted Sec.  779.20 
as proposed, with minor editorial revisions for clarity and 
consistency.
    Several commenters expressed concern that changes to the fish and 
wildlife resource information requirements might increase the amount of 
time it takes to review and process permits, resulting in a need for 
regulatory authorities to hire additional staff. The proposed and final 
rules are similar to the fish and wildlife resource information 
requirements in previous Sec.  780.16(a). They require very little 
additional information. Therefore, we do not anticipate that final 
Sec.  779.20 will have a significant impact on regulatory authority 
resource needs.
Final Paragraph (a): General Requirements
    Proposed paragraph (a), like previous Sec.  780.16(a), provided 
that the permit application must include information on fish and 
wildlife resources for the proposed permit and adjacent areas. The 
Department of Justice requested that we revise this provision to 
clarify that the term ``fish and wildlife resources'' includes all 
species of fish, wildlife, plants and other life forms listed or 
proposed for listing under the Endangered Species Act of 1973, 30 
U.S.C. 1531, et seq. Final Sec.  779.20(a) includes the requested 
revision, which is not substantive.
Final Paragraph (b): Scope and Level of Detail
    As proposed, Sec.  779.20(b) provided that the regulatory authority 
would determine the scope and level of detail for this information in 
coordination with state and federal agencies that have responsibilities 
for fish and wildlife. It also specified that the scope and level

[[Page 93133]]

of detail of the information must be sufficient to design the fish and 
wildlife protection and enhancement plan required under Sec.  780.16. 
We received no comments specific to this provision. Final paragraph (b) 
adopts the proposed rule without change.
Final Paragraph (c): Site-Specific Resource Information Requirements
    Proposed paragraph (c) sets forth requirements for site-specific 
fish and wildlife resource information. At the request of a federal 
agency, we revised proposed paragraph (c)(1), which pertains to species 
listed or proposed for listing under the Endangered Species Act of 
1973, by replacing the phrase ``fish and wildlife or plants'' with 
``species'' and the phrase ``state or private'' with ``non-federal'' to 
be consistent with terminology used in connection with the Endangered 
Species Act. The phrase ``state or private'' might inadvertently 
exclude activities of local and tribal governments and quasi-
governmental agencies.
    Some commenters suggested that we revise paragraph (c)(1) to 
require that the applicant identify cumulative impacts on federally-
listed species. Final paragraph (c)(1) provides that ``the site-
specific resource information must include a description of the effects 
of future non-federal activities that are reasonably certain to occur 
within the proposed permit and adjacent areas.'' That provision is the 
functional equivalent of an analysis of cumulative impacts. Therefore, 
no rule change is necessary. Other commenters asserted that we lack 
authority to require that applicants submit this information to a state 
regulatory authority or to require that a state regulatory authority 
conduct a cumulative effects analysis. According to the commenters, the 
Endangered Species Act only requires such an analysis for federal 
actions. We disagree. As discussed in the preamble for final Sec.  
773.15(j), section 7(a)(1) of the Endangered Species Act provides that 
``[t]he Secretary shall review other programs administered by him and 
utilize such programs in furtherance of the purposes of this Act.'' 
\244\ That would necessarily include using SMCRA to protect species 
listed or proposed for listing as threatened or endangered under the 
Endangered Species Act.\245\ Furthermore, the description of the 
effects of future non-federal activities that final paragraph (c)(1) 
requires is necessary for the regulatory authority to ascertain 
compliance with final Sec.  773.15(j).
---------------------------------------------------------------------------

    \244\ 16 U.S.C. 1536(a)(1).
    \245\ 16 U.S.C. 1531(b).
---------------------------------------------------------------------------

    Another commenter recommended that we delete all of proposed 
paragraph (c)(1), as the proposed language would place a significant 
burden on permit applicants, requiring them to know the affairs and 
plans of all private surface landowners in a given area and convey 
those plans as part of a permit application. We disagree and decline to 
delete this paragraph. This requirement to analyze the possible effects 
of action by private surface landowners is similar in terminology to a 
portion of the definition of ``Cumulative Impacts'' used in the U.S. 
Fish and Wildlife Service and the National Marine Fisheries Service 
regulations implementing the Endangered Species Act \246\ and therefore 
is a warranted and necessary element in this review. Also, because our 
previous regulations at 30 CFR 780.16(a)(2) included the requirement to 
provide site-specific resource information in each permit application, 
there is no additional burden on permit applicants.
---------------------------------------------------------------------------

    \246\ 50 CFR 402.02 defines ``cumulative effects'' as ``those 
effects of future State or private activities, not involving Federal 
activities, that are reasonably certain to occur within the action 
area of the Federal action subject to consultation.''
---------------------------------------------------------------------------

    Another commenter suggested that we define ``reasonably certain to 
occur.'' We do not agree. That term, which mirrors the terminology used 
in the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service regulations implementing the Endangered Species Act.\247\ The 
U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service have published an Endangered Species Consultation Handbook that 
explains the meaning of this phrase.\248\ No additional definition is 
needed in this rule.
---------------------------------------------------------------------------

    \247\ 50 CFR 402.02 defines indirect effects are ``those that 
are caused by the proposed action and are later in time, but still 
are reasonably certain to occur'', and ``cumulative effects'' as 
``those effects of future State or private activities, not involving 
Federal activities, that are reasonably certain to occur within the 
action area of the Federal action subject to consultation.''
    \248\ U.S. Fish and Wildlife Serv. and National Marine Fisheries 
Serv., Endangered Species Consultation Handbook: Procedures for 
Conducting Consultation and Conference Activities Under Section 7 of 
the Endangered Species Act, 4-32 (March 1998).
---------------------------------------------------------------------------

    One commenter urged us to require that the application include 
information on habitat for species listed as threatened or endangered. 
Another commenter requested that the rule specifically require 
information about biological communities that do not contain species of 
special concern. According to the commenter, those communities are 
still of interest because they may provide habitat to species that are 
valuable in other ways. Final Sec.  779.19(a)(1) requires that the 
permit application identify, describe, and map existing vegetation 
types and plant communities within the proposed permit area in a manner 
that is adequate to evaluate whether the vegetation provides important 
habitat for fish and wildlife. In addition, final Sec.  779.20(b) 
provides that the regulatory authority must determine the scope and 
level of detail for the fish and wildlife resource information required 
in coordination with state and agencies with responsibilities for fish 
and wildlife. Also, final section 780.16 requires additional action if 
the information required by final Sec.  779.20(b) indicates that the 
proposed permit area or the adjacent area contains species listed or 
proposed for listing as threatened or endangered species under the 
Endangered Species Act or that are designated as critical habitat. As 
one commenter noted, one potential resource for identifying this 
information is the Natural Heritage Program, a network of state 
programs that gather and disseminate biological information on species 
of conservation concern and on natural plant communities. Each state 
Natural Heritage Program would also be an appropriate entity to assist 
the regulatory authority to identify native plant communities of local 
or regional significance. The combination of these requirements should 
ensure that the site-specific resource information includes information 
on habitat under the circumstances described by the first commenter and 
in all other situations in which information on habitat is important.
    A commenter requested that we include specific reference to the 
Natural Heritage Program throughout the final rule, and specifically 
within final Sec. Sec.  779.20 and 783.20, when providing information 
about threatened, endangered, and rare species of plants and animals at 
the state and federal level. The commenter also suggested that evidence 
of any coordination with the Natural Heritage Program or other resource 
agencies be attached to the permit application. While we agree that 
coordination with each states' National Heritage Program can be an 
important step in obtaining information about threatened, endangered, 
and rare species of plants and animals, we decline to require this and 
any evidence of coordination with any National Heritage Program be 
included within the permit application. These requirements are more 
appropriately

[[Page 93134]]

addressed on a case-by-case basis at the discretion of the regulatory 
authority, because each regulatory authority has the appropriate local 
expertise and network of resources to make these decisions. However, we 
do agree that the Natural Heritage Program is an excellent resource for 
information about threatened, endangered, and rare species of plants 
and animals.
    A commenter requested that we define the term ``endemic species'' 
in proposed paragraph (c)(3). Another commenter recommended that we 
clarify that habitat for endemic species should be based on actual 
habitat boundaries rather than state or other jurisdictional boundaries 
that are less relevant from a biological perspective. Final paragraph 
(c)(3) does not include a definition of ``endemic species'' both 
because that term has a commonly understood meaning and because the 
U.S. Fish and Wildlife Service's published glossary of terms related to 
endangered species already defines ``endemic species'' as ``[a] species 
native and confined to a certain region; generally used for species 
with comparatively restricted distribution.'' \249\ The commenter is 
correct that jurisdictional boundaries should not determine whether a 
species is endemic to the area. For example, a species with a small 
distribution within one state but that is widespread throughout the 
rest of the country would not typically be considered endemic, despite 
its low numbers within the state boundaries.
---------------------------------------------------------------------------

    \249\ U.S. Fish and Wildlife Serv. Endangered Species Glossary. 
http://www.fws.gov/endangered/about/glossary.html (last accessed 
Nov. 1, 2016).
---------------------------------------------------------------------------

    Proposed Sec.  779.20(d) contained provisions regarding U.S. Fish 
and Wildlife Service review of the fish and wildlife resource 
information in the permit application. Proposed Sec.  780.16(e) 
contained substantively identical provisions for U.S. Fish and Wildlife 
Service review of the fish and wildlife protection and enhancement plan 
in the permit application. This final rule consolidates proposed 
Sec. Sec.  779.20(d) and 780.16(e) into final Sec.  780.16(e), both to 
streamline the regulations and in response to a comment noting that the 
Service reviews baseline fish and wildlife resource information 
together with the fish and wildlife protection and enhancement plan, 
not separately. The preamble to final Sec.  780.16(e) discusses the 
comments that we received on the provisions of proposed Sec. Sec.  
779.20(d) and 780.16(e) and how we revised the rule in response to 
those comments and discussions with the U.S. Fish and Wildlife Service.
    Proposed Sec.  779.20(d)(2)(iv) provided that the regulatory 
authority may not approve the permit application until all issues 
pertaining to threatened and endangered species are resolved and the 
regulatory authority receives written documentation from the Service 
that all issues have been resolved. Proposed Sec.  780.16(e)(2)(iv) 
contained a substantively identical provision. The final rule 
consolidates both of those proposed rules into final Sec.  780.16(b)(2) 
in revised form. Many commenters characterized this provision of the 
proposed rules as a U.S. Fish and Wildlife Service veto over the SMCRA 
permit. We discuss that comment in Part IV.J., above. The preamble to 
final Sec.  780.16(b)(2) discusses other comments that we received on 
proposed Sec. Sec.  779.20(d)(2)(iv) and 780.16(e)(2)(iv) and the 
revisions that we made in response to those comments and discussions 
with the U.S. Fish and Wildlife Service.
    Proposed Sec.  779.20(e) would have provided that the regulatory 
authority, in its discretion, may use the resource information 
collected under Sec.  779.20 and information gathered from other 
agencies to determine whether, based on scientific principles and 
analyses, any stream segments, wildlife habitats, or watersheds in the 
proposed permit area or the adjacent area are of such exceptional 
environmental value that any adverse mining-related impacts must be 
prohibited.
    We received comments both opposing and supporting proposed 
paragraph (e). Many commenters who supported this provision urged us to 
revise it to categorically prohibit mining in those areas rather than 
to afford discretion to the regulatory authority to do so. However, 
section 522 of SMCRA \250\ establishes the process and criteria for 
categorically designating areas unsuitable for all or certain types of 
mining. Commenters seeking a categorical prohibition should avail 
themselves of the petition process provided under that section of 
SMCRA.
---------------------------------------------------------------------------

    \250\ 30 U.S.C. 1272.
---------------------------------------------------------------------------

    Commenters opposing proposed paragraph (e) challenged our authority 
under SMCRA to adopt such a provision. They also alleged that it could 
result in a compensable taking of mineral interests, that it provides 
too much power to state and federal fish and wildlife agencies, and 
that it could be enormously disruptive and economically costly because 
potential permit applicants would not have reasonable certainty as to 
which portions of the proposed permit area they would be allowed to 
mine. Other commenters noted that section 515(b)(24) of SMCRA,\251\ 
which contains the performance standard for protection of fish and 
wildlife, does not include an express prohibition on mining. Instead, 
it provides that ``to the extent possible using the best technology 
currently available,'' surface coal mining and reclamation operations 
must ``minimize disturbances and adverse impacts of the operation on 
fish, wildlife, and related environmental values.''
---------------------------------------------------------------------------

    \251\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    The counterargument is that section 515(b)(23) of SMCRA provides 
that surface coal mining and reclamation operations must ``meet such 
other criteria as are necessary to achieve reclamation in accordance 
with the purposes of this Act, taking into consideration the physical, 
climatological, and other characteristics of the site.'' \252\ One of 
the purposes of the Act is to ``assure that surface mining operations 
are not conducted where reclamation as required by this Act is not 
feasible.'' \253\
---------------------------------------------------------------------------

    \252\ 30 U.S.C. 1265(b)(23).
    \253\ 30 U.S.C. 1202(c).
---------------------------------------------------------------------------

    Other commenters wanted us to define or otherwise clarify the 
terms, ``exceptional environmental value,'' ``coordination between 
agencies, ``scientific principles and analysis'', and ``consultation'' 
in proposed paragraph (e). They requested clarification on how this 
provision would be applied to regulatory decisions made prior to the 
final rule. They also sought an opportunity for further public comment 
on the meaning of ``exceptional environmental value'' and on how this 
provision would be applied. We also received comments criticizing the 
lack of a definition of ``adverse impacts,'' and inquiring whether this 
term extended to impacts that were short-term or temporary or that 
imposed no permanent change on biota or the ecosystem.
    After evaluating the comments that we received, we decided not to 
adopt proposed Sec.  779.20(e) because avoiding disturbances to 
habitats of unusually high value for fish and wildlife, as described in 
final Sec.  779.20(c)(3), is one of the options provided in final Sec.  
816.97(f). Therefore, there is no need to further discuss or address 
the comments that we received on proposed Sec.  779.20(e). While we are 
not adopting proposed paragraph (e), we encourage states to consider 
doing so under section 505 of SMCRA,\254\ which specifies that any 
state law or regulation that ``provides for more stringent land use and 
environmental controls and

[[Page 93135]]

regulations of surface coal mining and reclamation operations than do 
the provisions of this Act or any regulation issued pursuant thereto 
shall not be construed to be inconsistent with this Act.''
---------------------------------------------------------------------------

    \254\ 30 U.S.C. 1255(b).
---------------------------------------------------------------------------

Section 779.21: What information on soils must I include in my permit 
application?

    In the proposed rule,\255\ we explained the August 4, 1980 
suspension of the rules in relationship to lands other than prime 
farmlands, why we proposed to lift the suspension of previous Sec.  
779.21, and why we replaced those provisions with language consistent 
with the holding in In Re Permanent Surface Mining Regulation 
Litigation I, Round I.\256\ One commenter questioned our logic in 
lifting the suspension and the consistency of the proposed rule with 
the court's holding. As explained in the preamble to our proposed rule, 
this is consistent with the court's decision that section 507(b)(16) of 
SMCRA is a clear expression of congressional intent to require soil 
surveys only for prime farmlands identified by a reconnaissance 
inspection.\257\ Consistent with that decision the final rule clarifies 
that soil surveys are only required when a reconnaissance inspection 
suggests that the land may be prime farmland. In those circumstances 
the permit application must include the results of the reconnaissance 
inspection and, when prime farmland is found to be present, the soil 
survey information required by Sec.  785.17(b)(3). If prime farmlands 
are not identified, the court held that Sec.  508(a)(3) did not 
constitute authority for our regulations to require an applicant to 
provide soil survey information for lands not qualifying as prime 
farmland. Our final rule is consistent with the decision. To begin, we 
rely on section 508(a)(2) of SMCRA.\258\ This section of SMCRA requires 
that each reclamation plan submitted as part of a permit application 
pursuant to any approved State program or a Federal program under the 
provisions of SMCRA shall include necessary details to demonstrate that 
reclamation required by the State or Federal program can be 
accomplished, a statement of the capability of the land prior to any 
mining to support a variety of uses giving consideration to soil and 
foundation characteristics, topography, and vegetative cover, and, if 
applicable, a soil survey. This statutory provision requires the 
applicant to include information about soil and foundation 
characteristics in each permit application, not just in those 
applications that contain prime farmland.\259\ This information, 
detailed in final paragraphs (b) through (d), does not need to take the 
form of a requirement to conduct a soil survey unless prime farmland 
may be present. While it is true that the regulations do not require 
that soil surveys be conducted for lands that may not be prime 
farmland, it is also true that some soil surveys for these lands may 
already exist and these already-existing soil surveys would be useful 
to the regulatory authority in fulfilling its responsibilities under 
section 508(a)(2) of SMCRA. Therefore, for lands that may not be prime 
farmland, our final rule does not require a soil survey to be 
conducted, but it does require the submittal of soil survey information 
if it already exists.
---------------------------------------------------------------------------

    \255\ 80 FR 44436, 44484-44485 (Jul. 27, 2015).
    \256\ In re Permanent Surface Mining Regulation Litig. I, Round 
I (PSMRL I, Round I), 1980 U.S. Dist. LEXIS 17722 at *62 (D.D.C., 
February 26, 1980).
    \257\ 80 FR 44436, 44485 (Jul. 27, 2015) (citing 30 U.S.C. 
1258(a)(2) and 1257(b)(16) and In re Permanent Surface Mining 
Regulation Litig. I, Round I (PSMRL I, Round I), 1980 U.S. Dist. 
LEXIS 17722 at *62 (D.D.C., February 26, 1980)).
    \258\ 30 U.S.C. 1258(a)(2).
    \259\ 30 U.S.C. 1257(b)(16).
---------------------------------------------------------------------------

    Regarding paragraph (a), other commenters indicated that, given the 
predominant land use in some areas of prime farmland and the Natural 
Resources Conservation Service's extensive mapping, a ``reconnaissance 
inspection'' is not necessary to make a determination regarding whether 
prime farmland exists in the permit area. Similarly, other commenters 
expressed concern about the requirement for ``a soils reconnaissance 
inspection'' to determine the presence of prime farmland without 
further guidance regarding what the reconnaissance inspection would 
entail. However, paragraph (a) does not contain any new requirements 
regarding these issues; it merely includes and cross-references 
existing prime farmland regulations within Sec.  785.17 and reiterated 
at Sec.  779.21(e) of the final rule.
    In paragraph (b), we require the permit applicant to include soil 
surveys completed by the Natural Resources Conservation Service. A 
commenter suggested that this information is frequently unavailable on 
federal, state, or tribal lands, and, in situations where such soil 
survey information is available, it is frequently provided as an Order 
4 soil survey and is not sufficiently detailed to be useful without 
substantial interpolation. The commenter recommended that we allow 
Order 2 soil surveys to address reclamation plan needs. For non-prime 
farmland an applicant need only submit soil survey information that 
exists; therefore, if, as the commenter suggests, this soil survey 
information does not exist it would not be required. In the event Order 
4 soil surveys are the only data set available those should be 
submitted; conducting an Order 2 soil survey would not be required if 
such a survey for the proposed permit area does not exist. The purpose 
of this section, and others related to establishing soil condition, is 
to ascertain as much information as possible about the capability and 
productivity of the land prior to mining in order to develop a 
reclamation plan that restores the premining land use capabilities.
    Some commenters opined that proposed paragraph (c) is problematic. 
The commenter stated that relying on descriptions of soil depths taken 
from soil mapping completed by the Natural Resources Conservation 
Service is not reliable because these maps may not accurately reflect 
on-site conditions. Final Sec.  816.22(a)(1)(i) requires mine operators 
to remove and salvage all topsoil and other soil materials. Therefore, 
regardless of whether or not the Natural Resources Conservation Service 
maps are exactly accurate is of secondary consequence because the mine 
operator must remove and salvage these materials as they exist at the 
permit site. For example, if the map indicates that a certain soil type 
contains eight inches of topsoil, but the on-site conditions reveal 
twelve inches of topsoil exist, the mine operator is required to remove 
and salvage all twelve inches of topsoil, not merely the eight inches 
indicated on the map.
    Some commenters also questioned proposed paragraph (f), which 
affords the regulatory authority the opportunity to require whatever 
information it may need to determine land use capability. These 
commenters opined that this paragraph requires applicants to prepare 
the reclamation plan with no guidance regarding what is necessary to 
satisfy this requirement. The commenters misinterpret this regulation; 
it merely states the inherent authority of the regulatory authority to 
determine, on a case-by-case basis, what additional information is 
necessary to assess the land use capability. This provision is 
discretionary with the regulatory authority and provides a regulatory 
authority with the ability to use its best professional judgment to 
require information that may be needed for local conditions or 
circumstances. However, we have modified final rule Sec.  779.21(f) to 
clarify that any other information ``on soils'' that the regulatory 
authority finds necessary to

[[Page 93136]]

determine land use capability may be collected. Moreover, we removed 
the phrase ``and to prepare the reclamation plan'' because the 
regulatory authority does not prepare the reclamation plan.
    A commenter requested that we require more detailed soil 
descriptions because, in the commenter's opinion, more detailed soil 
descriptions are needed to differentiate between the soil horizons (O, 
A, E, B, C, and R) so that they can be properly characterized and 
segregated. Other commenters suggested that we require the retention of 
physical soil core samples and photographs because mischaracterization 
of soil horizons could allow improper mixing of higher quality soils 
with poor soils. We disagree with these comments because the minimum 
requirements as established in our final rule are sufficient to develop 
adequate reclamation plans for the salvage and storage of topsoil and 
other soil horizons as needed to reconstruct a soil medium that will 
support the approved postmining land use. As discussed previously, 
Sec.  779.21(f) allows the regulatory authority to require a greater 
level of detail, if deemed necessary, which could include the 
information suggested by the commenters.
    Another commenter questioned the rationale of expanding the 
requirements for soil information, stating that the proposed rule is 
not supported by science. This commenter did not provide any specific 
information in support of the assertion that this requirement is not 
supported by science. Not only do we disagree with the commenter we 
note that all of the final rule requirements, including soil mapping 
and available surveys, soil depth and quality, are collectively 
necessary to effectively determine the premining capability and 
productivity of the land and to establish the soil salvage, soil 
substitute, and soil replacement requirements to ensure restoration of 
these capabilities and successful establishment of native vegetation. 
Moreover, these requirements are not only consistent with the Act they 
are essential to fulfilling the requirements of the Act.\260\
---------------------------------------------------------------------------

    \260\ See, e.g., 30 U.S.C. 1257(b)(16); 30 U.S.C. 1258(a)(2) and 
(3); 30 U.S.C. 1265(b)(2), (5), (6) and (7).
---------------------------------------------------------------------------

Section 779.22: What information on land use and productivity must I 
include in my permit application?

    Commenters expressed concern that proposed paragraph (a)(2), which 
would require a description of the historic use of the land, contains 
no time limitation, is unfair and impractical, and creates an 
impossible standard. Similarly, commenters also noted that it was 
sometimes difficult to determine with precision all of the land uses 
within the five-year standard included in the existing regulations at 
30 CFR 780.23(a) and that the longer timeframe detailed in paragraph 
(a)(2) would make it even more difficult. We do not intend this 
requirement to be unfair, impractical, or create an impossible 
standard, and for clarity are adding a statement to the end to (a)(2); 
``to the extent that this information is readily available or can be 
inferred from the uses of other lands in the vicinity.'' In most cases, 
it would be sufficient for the applicant to provide historical land use 
information similar to that required for a Phase I Environmental Site 
Assessment under the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA).\261\ Standards for these assessments have 
been established by ASTM International.\262\ Assessments may include a 
review of publicly available records, aerial photos, soil surveys, deed 
searches, and interviews with owners, occupants, neighbors, and local 
government officials. Various military and government agencies began 
collecting aerial imagery as far back as the 1940's and 1950's. 
Advancements in satellite and sensor technology resulted in agencies 
gathering imagery from space during the 1970s and 1980s. While results 
will vary depending on one's geographic area of interest, most areas of 
the continental United States have aerial imagery coverage dating back 
several decades. A free, open, and commonly used repository of aerial 
imagery is available online through the U.S. Geological Survey portal 
called Earth Explorer: http://earthexplorer.usgs.gov/. This user-
friendly platform hosts a plethora of aerial imagery as well as 
satellite imagery. Based on the material available for the site and 
region, the regulatory authority should easily be able to determine 
whether the statement of the historical uses of the area is reasonable.
---------------------------------------------------------------------------

    \261\ 42 U.S.C. 9601 et seq.; see also 40 CFR part 312.
    \262\ See ASTM 1527-05 and 1527-13.
---------------------------------------------------------------------------

    A regulatory authority commenter objected to the placement of the 
phrase ``capability of the land prior to any mining'' in proposed rule 
Sec.  779.22(b)(1). Although this phrase is taken directly from section 
508 of SMCRA,\263\ the commenter expressed concern that ``prior to 
any'' mining is not sufficiently defined. Further, the commenter opines 
that it will be problematic to determine the capability of land for 
areas such as Appalachia where coal mining has existed for more than 
150 years. This commenter also questioned whether the purpose of the 
proposed rule is to require that vegetative communities and land uses 
are restored to what existed prior to any mining--such as the 
vegetative communities that existed in 1930. The proposed rule at 
Sec. Sec.  779.22(b)(2)(i) and 783.22(b)(2)(i) established requirements 
for a narrative analysis of the productivity of the proposed permit 
area . . . as determined by actual yield data or yield estimates . . . 
''. One commenter on this section expressed concern that we were making 
a substantive change by adding the word ``actual'' to the requirement 
for yield data regarding the average yield of food, fiber, forage or 
wood products obtained on the land before mining. Another commenter 
objected to proposed paragraph (b)(2) requiring the presentation of 
productivity data expressed as average yield of food, fiber, forage, or 
wood products obtained under ``high levels of management'' because this 
allegedly requires coal mining operators to speculate about industries 
and commercial enterprises in which they have no expertise. We 
disagree. Our previous regulations at Sec.  780.23(a)(2)(ii) required 
the applicant to determine productivity by yield data or estimates for 
similar sites based on current data from the U.S. Department of 
Agriculture, state agricultural universities, or appropriate state 
natural resource or agricultural agencies. Likewise, our previous 
regulations at Sec. Sec.  780.23(a)(2)(ii) and 784.15(a)(2)(ii) 
included a requirement for productivity information to be expressed 
``under higher levels of management'', thus, this is not a new 
requirement. While our previous regulations do not use the word 
``actual'', inclusion of the word ``actual'' in the revised regulations 
merely emphasizes the distinction between actual data and estimated 
data and imposes no new requirements. In response to commenters' 
concerns about potential land uses and determining premining 
capability, we included a more thorough discussion of these issues in 
the preamble to final Sec.  780.24.
---------------------------------------------------------------------------

    \263\ 30 U.S.C. 1258(a)(2)(B).
---------------------------------------------------------------------------

    We received many comments regarding the proposed requirement at 
Sec.  779.22(b)(3), which would have required the permit applicant to 
provide a narrative analysis of productivity of the proposed permit 
area for fish and wildlife before mining. Many commenters supported 
this requirement, expressing that productivity information was 
essential to establishing a baseline on which impacts to fish and 
wildlife can be

[[Page 93137]]

evaluated and for establishing a reference for reclamation of the area 
to premining conditions. Other commenters alleged that the requirement 
was unclear on the level and scope the analysis must entail and what 
metrics and historical documentation would be necessary. After 
consideration of the comments both supportive and critical of this 
provision, we have determined that this requirement is overly 
burdensome due to the survey effort that would be required to document 
productivity. As expressed in the preamble for the proposed rule, the 
fish and wildlife information required by proposed paragraph (b)(3) 
would have assisted the regulatory authority in evaluating the 
environmental impacts of the proposed operation and in determining the 
fish and wildlife protection and enhancement measures that may be 
appropriate. However, these productivity needs can be adequately met by 
the requirements at Sec. Sec.  779.20(a)-(c) and 783.20(a) through (c) 
to include general and site-specific resource information on fish and 
wildlife resources in the permit application to a level of detail 
determined by the regulatory authority in coordination with state and 
federal agencies with responsibilities for fish and wildlife. 
Therefore, we have eliminated this fish and wildlife productivity 
narrative from the final rule.
    Paragraph (c) allows the regulatory authority the flexibility to 
require other information deemed necessary to determine the condition, 
capability, and productivity of the land within the proposed permit 
area. In the preamble, we noted that this additional information may 
include data about a site's carbon absorption and storage capability. 
Commenters claimed that it is not within the purview of SMCRA authority 
to evaluate the carbon footprint of the proposed operation. We 
disagree. SMCRA clearly allows regulatory authorities to consider the 
effects of the proposed operation on the condition of the land, which 
includes the land's capability prior to any mining.\264\ The capability 
of the land within the proposed permit area could include the land's 
ability to absorb and store greenhouse gases. As indicated in our Draft 
and final EIS, greenhouse gases are sequestered and stored in soils and 
vegetative biomass, which reduces the total amount of carbon present in 
the atmosphere and mitigates the adverse effects of climate change. 
Mining may remove significant amounts of forest cover, which would 
reduce the capability of the land to sequester and store carbon. The 
regulatory authority may want to factor this information into decisions 
concerning an applicants proposed changes in land use, or revegetation, 
including the provisions at final 780.16(d)(3) regarding mandatory 
enhancement measures to address losses of mature native forests.
---------------------------------------------------------------------------

    \264\ See 30 U.S.C. 1258.
---------------------------------------------------------------------------

Section 779.24: What maps, plans, and cross-sections must I submit with 
my permit application?

    We proposed to consolidate existing Sec. Sec.  779.24 and 779.25 
into Sec.  779.24 and add a new paragraph (c) to clarify that the 
regulatory authority may require that the applicant submit all 
materials in a digital format that includes all necessary 
metadata.\265\ Except as discussed below, we are adopting, as proposed, 
Sec. Sec.  779.24 and the counterpart at 783.24, related to underground 
mining.
---------------------------------------------------------------------------

    \265\ 80 FR 44436, 44486 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Section 779, pertains to the minimum requirements for information 
on environmental resources and conditions for surface coal mining 
applications. In Sec.  779.24(a)(2), the text mistakenly referred to 
underground mining activities when we meant surface mining activities; 
hence, we replaced the word ``underground'' with the word ``surface'' 
in the final rule text.
    Several commenters requested we revise paragraph (a)(9) to include 
that streams and wetlands within the jurisdiction of the Clean Water 
Act be field delineated, documented, mapped, and then field confirmed 
by the U.S. Army Corps of Engineers. We are not adopting this 
recommendation because we cannot place responsibilities on the U.S. 
Army Corps of Engineers through SMCRA rulemaking. However, as revised, 
our final rule at Sec.  773.5(a) requires that each SMCRA regulatory 
program provide for coordination of review of permit applications and 
issuance of permits for surface coal mining operations with the federal 
and state agencies responsible for permitting and related actions 
under, among other laws, the Clean Water Act. This provision will 
ensure that the U.S. Army Corps of Engineers has an opportunity to 
participate in the SMCRA permitting process to the degree that it deems 
appropriate.
    Commenters expressed concern about the confidentiality of 
information provided to the regulatory authority within proposed 
paragraph (a)(11). In response to these comments, we revised Sec.  
779.24(a)(11), to ensure that this information is kept confidential 
when necessary for safety and security reasons and to protect the 
integrity of the public water supply.
    Another commenter requested clarity about the extent of ``water 
supplies'' that must be mapped as required in this section. As stated 
in proposed paragraph (a)(11), any public water supply and associated 
wellhead protection zone located within one-half mile, measured 
horizontally, of the proposed permit area must be included in maps and, 
when appropriate, in plans and cross sections included in the permit 
application. This section of the rule does not intend for the origin of 
the source waters to be included, but rather the location of the public 
water supply itself. The scale of the map must be sufficient to include 
all pertinent features as required in final rule Sec.   779.24.
    Proposed paragraph (a)(13) requires that the location of any 
discharge, including, but not limited to, a mine-water treatment or 
pumping facility, into or from an active, inactive, or abandoned 
underground mine that is hydrologically connected to the proposed 
permit area or that is located within one-half mile, measured 
horizontally, of the proposed permit area be shown on a map or cross-
section and included in the permit application. In the final rule, we 
have revised the phrase ``hydrologically connected to the proposed 
permit area'' to ``hydrologically connected to the site of the proposed 
operation'' for consistency with final rule Sec.  783.24(a)(13), which 
describes what maps, plans, and cross-sections the operator must submit 
with a permit application for an underground mine. The type of 
information required in this section aids the applicant in preparing 
the determination of the probable hydrologic consequences of mining 
required by section 507(b)(11) of SMCRA \266\ and the regulatory 
authority in preparing the cumulative hydrologic impact assessment 
required by the same provision of the Act and by section 510(b)(3) of 
SMCRA.\267\ Several commenters, including regulatory authorities and 
industry commenters, opined that paragraph (a)(13) did not provide any 
benefit and would result in increased costs. We disagree. The locations 
of any of these types of discharges are necessary for the applicant to 
prepare the determination of the probable hydrologic consequences of 
mining required by section 507(b)(11) of SMCRA,\268\ and for the 
regulatory authority to prepare the cumulative hydrologic impact

[[Page 93138]]

assessment required by the same provision of the Act and by section 
510(b)(3) of SMCRA.\269\ Another commenter was concerned that the 
requirement in paragraph (a)(13) may present private property access 
issues for permit applicants. We acknowledge that lack of landowner 
consent may restrict data collection; however, we anticipate that the 
applicant will make every effort to obtain necessary access from 
private property owners. We also anticipate that the applicant will 
coordinate with the regulatory authority to rectify this issue, and, at 
the very least, document the inability to access the private property 
because of a refusal by the property owner to provide permission.
---------------------------------------------------------------------------

    \266\ 30 U.S.C. 1257(b)(11).
    \267\ 30 U.S.C. 1260(b)(3).
    \268\ 30 U.S.C. 1257(b)(11).
    \269\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Proposed paragraphs (a)(18) and (20) included a requirement to 
submit geographic coordinates of test borings, core samplings, and 
monitoring stations. One commenter stated that these requirements would 
require field surveying which would add significant costs to the 
application process and that coordinates derived through the use of 
appropriate software could provide greater accuracy than hand-held 
field devices. Proposed paragraphs (a)(18) and (20) do not specify the 
means that must be used to obtain the geographic coordinates, only that 
the coordinates need to be included in the permit application. The use 
of hand-held global positioning system field devices is acceptable, but 
the use of appropriate geospatial software and publicly available 
imagery is also acceptable and provides accurate data. We have not 
modified the final rule in response to this comment.
    Proposed paragraph (a)(19) expands upon the requirement in existing 
section 779.25(a)(6), which requires maps showing the location and 
extent of subsurface water, if encountered. The expanded application 
requirements of the proposed rule would also require all mining 
applications for both surface and underground mines to identify 
aquifers; this requirement is currently only applicable to underground 
mines under existing Sec.  783.25(a)(6). We also proposed to require 
that the application include the areal and vertical distribution of 
aquifers and a portrayal of seasonal variations in hydraulic head in 
different aquifers. In addition, proposed paragraph (a)(19) includes a 
requirement for the estimated elevation of the water table required by 
section 507(b)(14) of SMCRA.\270\ Two commenters stated that the 
requirement in paragraph (a)(19) to provide the areal and vertical 
extent of aquifers on a map provided no benefit and would result in 
increased costs. Maps showing the areal and vertical extent of aquifers 
are needed to accurately assess the extent of groundwater within the 
proposed permit and adjacent areas so that the regulatory authority can 
conduct an adequate assessment of the hydrology so that it can ensure 
the proposed coal mining operation will minimize disturbance of the 
hydrologic balance inside the permit area and adjacent areas and 
prevent material damage to the hydrologic balance outside the permit 
area. Another commenter stated that it would prefer the option to use 
maps instead of cross-sections to show the data required by paragraph 
(a)(19). In consideration of this comment, we agree that it is prudent 
to allow the applicant the flexibility, in consultation with the 
regulatory authority, to select the most appropriate means of supplying 
this information in the permit application. Therefore, paragraph (19) 
has been revised to allow for the information to be provided on 
appropriately-scaled cross-sections or maps, in a narrative, or a 
combination of these methods.
---------------------------------------------------------------------------

    \270\ 30 U.S.C. 1257(b)(14).
---------------------------------------------------------------------------

    To provide clarity, we further revised paragraph (a)(19) of the 
final rule to replace ``portrayal of seasonal variations'' with 
``maximum and minimum variations.'' The modification clarifies it is 
the range in variations in hydraulic head that is needed to provide 
meaningful information relative to individual water level measurements. 
We also omitted the word ``estimated'' concerning the elevation of the 
water table in the aquifers to clarify that the elevations must be 
based on groundwater data collected from the site rather than on an 
estimation of the levels based on other sources. Finally, we revised 
``location and extent of subsurface water, if encountered'' to 
``location and extent of any subsurface water encountered'' to clarify 
that the intent is to record the presence of any subsurface water 
encountered within the proposed permit and adjacent areas.
    In paragraph (a)(21), we proposed to add a requirement that any 
coal or rider seams located above the coal seam to be mined also be 
identified in this section. However, this requirement was removed from 
the final rule due to a redundancy with requirements in Sec.  
780.19(e)(3). Likewise, the requirement in paragraph (a)(23) to 
identify the location and extent of known workings of underground mines 
underlying the proposed permit and adjacent areas are removed in the 
final rule due to redundancy with Sec.  783.24(a)(23).
    In paragraph (a)(27), we proposed to add a requirement that the 
application identify all directional or horizontal drilling for 
hydrocarbon extraction operations, including those using hydraulic 
fracturing methods, within or underlying, the proposed permit and 
adjacent areas. A few commenters objected to the addition of this 
requirement. These commenters pointed to the difficulty in obtaining 
the information as it is often proprietary information or would 
otherwise be time consuming to acquire. The commenters also noted that, 
at least in western states, this type of drilling generally occurs in 
zones well below the depth of coal mines and potable water aquifers. 
Some commenters suggested that the regulatory authority should have the 
flexibility in determining if this information is necessary. We agree 
to an extent. We have removed any specific references to directional or 
horizontal drilling as this requirement applies to all oil and gas 
wells regardless of whether they are conventional or unconventional. In 
addition, we included a requirement that the lateral extent of the well 
bores must be provided unless that information is confidential under 
state law. However, as required in previous Sec.  779.25(a)(10), some 
information related to oil and gas wells is necessary for both the 
applicant and the regulatory authority to fully evaluate the impacts of 
the potential mining and reclamation activities with regard to the 
existence of these types of wells within the proposed and adjacent 
areas. Mining and reclamation activities must be planned appropriately 
to accommodate the presence of these structures; therefore, the 
locations of the wells, and in many instances the depths, must be known 
prior to the development of the mining plan. In recognition that the 
well completion information may be confidential, the final rule 
includes the qualifier, ``if available,'' relative to the depth 
information and we have required the lateral extent of the well bores 
to be provided unless that information is confidential under state law.
    With regard to paragraph (c)--the new paragraph we proposed related 
to digital submittal of information--we invited comment on whether the 
digital format option should be mandatory to facilitate review by both 
the public and the regulatory authority instead of allowing the 
regulatory authority discretion in determining the format that the 
operator is required to submit their data. One commenter suggested that 
we require all regulatory authorities to post online all mine permit 
applications and associated

[[Page 93139]]

files. Several commenters were in favor of making this requirement 
mandatory; however, another commenter suggested that the final rule 
should not require the digital format option for all materials 
submitted to regulatory authorities because there are instances where 
published maps are utilized and metadata may not be available. We agree 
with the commenter's rationale; thus, there were no changes made to 
paragraph (c) in the final rule.

Previous Sec.  779.25: Cross Sections, Maps, and Plans

    We have removed and reserved previous Sec.  779.25 for the reasons 
discussed in the final rule.\271\
---------------------------------------------------------------------------

    \271\ 80 FR 44436, 44486 (Jul. 27, 2015).
---------------------------------------------------------------------------

G. Part 780--Surface Mining Permit Applications--Minimum Requirements 
for Operation and Reclamation Plans

Section 780.1: What does this part do?

    With the exception of altering the title of this section for 
clarity, we are finalizing section 780.1 as proposed. We received no 
comments on this section.

Section 780.2: What is the objective of this part?

    We are finalizing Sec.  780.2 as proposed. We received no comments 
on this section.

Section 780.4: What responsibilities do I and government agencies have 
under this part?

    We are finalizing Sec.  780.4 as proposed. We received no comments 
on this section.

Section 780.10: Information Collection

    Section 780.10 pertains to compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. We are adding contact information for 
persons who wish to comment on these aspects of part 780.

Section 780.11: What must I include in the description of my proposed 
operations?

    We are finalizing Sec.  780.11 as proposed. We received no comments 
on this section.

Section 780.12: What must the reclamation plan include?

    Section 780.12 sets forth requirements for the reclamation plan 
which must be included within a permit application. Several commenters 
stated that the new requirements for describing, in detail and in 
writing, the plans for all activities, including planned animal 
husbandry practices, reclamation timetables, and plans for minimizing 
the establishment and spread of invasive species, were too onerous for 
the applicant to provide, too difficult to establish with any accuracy 
before a mining operation begins, and too lengthy for the regulatory 
authority to analyze and approve. We disagree. These new permit 
description requirements are necessary to fulfill statutory 
requirements, particularly the requirement to use ``the best technology 
currently available'' to ``minimize disturbances and adverse impacts of 
the operation on fish, wildlife, and related environmental values, and 
achieve enhancement of those resources where practicable'' within 
section 515(b)(24) of SMCRA.\272\ The requirements of this section, 
including the requirement that an applicant provide a timetable for 
reclamation and other activities, will also ensure that these 
activities have been given sufficient consideration before a permit is 
issued. These additional descriptions and timetables are realistic and 
achievable and will allow the regulatory authority to fully analyze the 
permit and the operators' efforts to comply with SMCRA.
---------------------------------------------------------------------------

    \272\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    One commenter stated that the whole section implies that these 
programs have not been successful in returning lands to approximate 
original contour and in repairing lands and waters damaged by pre-SMCRA 
mining. We disagree. Reclamation has been successfully accomplished in 
many instances. However, reclamation techniques can be improved as the 
regulatory authorities, mine operators, and the scientific community 
learns more about successful reclamation. For instance, the Forestry 
Reclamation Approach of planting shrubs and trees in soil that is not 
compacted has thoroughly changed how this industry returns forests to 
mine sites. Additionally, eliminating or limiting the use of non-
native, invasive grasses has improved native reclamation in arid areas. 
The rule that we are adopting today promotes the use of these and other 
best practices in the field of reclamation and will benefit native 
species, communities, and ecosystems both within and beyond the 
permitted site.
Final Paragraph (b): Reclamation Timetable
    Section 780.12(b) contains a requirement that applicants submit a 
timetable for reclamation activities which constitute major steps in 
the reclamation process, including, but not limited to: The planting of 
all vegetation in accordance with the revegetation plan approved in the 
permit (including establishing appropriate vegetation bordering 
perennial, intermittent, and ephemeral streams); demonstrating 
revegetation success and the restoration of the ecological function of 
all reconstructed perennial and intermittent stream segment; and 
applying for each phase of bond release under section 800.42.
    Several commenters expressed concern that these new requirements 
will place operators in a position to fail or force them into 
noncompliance, if, despite their best efforts, they do not meet the 
proposed timetables for demonstration of revegetation success, 
restoration of the ecological function of all reconstructed perennial 
and intermittent stream segments, or application for each phase of bond 
release. In addition, these commenters claim that establishing a 
timetable for completion of these activities, including the return of 
ecological function to streams, is unrealistic and that these new 
requirements would remove the discretion from regulatory authorities to 
require items they determine are important on a case-by-case basis. We 
disagree. The current rules already require ``a detailed timetable for 
the completion of each major step in the reclamation plan'' within 
Sec.  780.18(b)(1). This section now lists the major steps that, at a 
minimum, must be included in the timetable. The rule provides the 
regulatory authority with flexibility to require additional steps at 
its discretion. Moreover, these minimum standards help implement 
various provisions of SMCRA including, but not limited to: section 
507(d) of SMCRA, which provides that ``[e]ach applicant for a permit 
shall be required to submit to the regulatory authority as part of the 
permit application a reclamation plan which shall meet the requirements 
of this Act''; \273\ section 508(a)(4), which requires ``a detailed 
description of how the proposed postmining land use is to be achieved 
and the necessary support activities which may be needed to achieve the 
proposed land use''; \274\ section 508(a)(7), which requires a 
detailed, estimated timetable for the accomplishment of each major step 
in the reclamation plan''; \275\ and section 515(b)(16), which requires 
that mining operations ``insure that all reclamation efforts proceed in 
an environmentally sound manner and as contemporaneously as practicable 
with

[[Page 93140]]

the surface coal mining operations.\276\ Additionally, permit 
documents, such as reclamation plans, are allowed to be updated, and 
frequently are. Reclamation schedules can be revised as needed during 
the course of mining as long as the regulatory authority finds the 
adjustment acceptable under section 511(a) of SMCRA.\277\ This process 
should protect operators in situations where, despite their best 
efforts, they cannot meet the original reclamation schedule. No changes 
were made as a result of these comments.
---------------------------------------------------------------------------

    \273\ 30 U.S.C. 1257(d).
    \274\ 30 U.S.C. 1258(a)(4).
    \275\ Id. at (a)(7).
    \276\ 30 U.S.C. 1265(b)(16).
    \277\ 30 U.S.C. 1261(a).
---------------------------------------------------------------------------

    We made changes to paragraphs (b)(3), (b)(5), and (b)(7) to clarify 
that establishment of the surface drainage pattern and stream-channel 
configuration; the planting of appropriate vegetation along the banks 
of perennial, intermittent, and ephemeral streams; and the restoration 
of the ``form'' of all perennial and intermittent stream segments are 
major steps which must be included in the reclamation plan. As 
proposed, paragraph (b)(3) added to the list of milestones in the 
reclamation timetable a requirement for establishing ``[r]estoration of 
the form of all perennial and intermittent stream segments through 
which you mine, either in their original location or as permanent 
stream-channel diversions.'' The requirement described at proposed 
paragraph (b)(5) was, ``planting,'' and proposed paragraph (b)(7) 
provided for the ``[r]estoration of ecological function of all 
reconstructed perennial and intermittent stream segments either in 
their original location or as permanent stream channel diversions.'' As 
discussed in more detail below, these changes were made in order to 
clarify the previous regulation at Sec.  780.18(b)(1) by identifying 
these requirements as ``major steps in the reclamation process'' and to 
conform Sec.  780.12(b) of the proposed rule to the proposed rule at 
Sec. Sec.  780.28 and 816.57, which related to activities, in, through, 
or adjacent to streams and the restoration of ecological function, and 
to proposed rule Sec. Sec.  816.111 and 816.116, which related to 
revegetation. It is necessary to document these milestones to ensure 
that successful reclamation is accomplished and to provide the 
regulatory authority with assurance that these activities have been 
given sufficient consideration. Moreover, as previously discussed, the 
inclusion in the reclamation plan of a ``detailed estimated timetable 
for the accomplishment of each major step in the reclamation plan'' is 
consistent with section 508(a)(7) of SMCRA.\278\
---------------------------------------------------------------------------

    \278\ 30 U.S.C. 1258(a)(7).
---------------------------------------------------------------------------

    Several commenters objected to the inclusion of proposed paragraphs 
(b)(3) and (b)(7), deeming them unnecessary but not providing 
justification for this assertion. We disagree. As discussed throughout 
this preamble and specifically within Sec. Sec.  780.28, 816.56, and 
816.57, stream reconstruction is essential to achieving reclamation. 
Moreover, section 508(a)(13) of SMCRA specifically requires ``a 
detailed description of the measures to be taken during the mining and 
reclamation process to assure the protection of . . . the quality of 
surface and ground water systems. . . .'' \279\ Adding the requirements 
in paragraphs (b)(3) and (b)(7) will ensure that both the regulatory 
authority and industry are mindful of the importance of these measures 
and carefully plan for their appropriate implementation. To ensure 
consistency with final rule Sec. Sec.  780.28, 816.56, and 816.57, we 
have revised paragraph (b)(3).
---------------------------------------------------------------------------

    \279\ Id. at 1258(a)(13).
---------------------------------------------------------------------------

    This modification reflects the different requirements for 
restoration of ``form'' of perennial and intermittent streams that must 
occur prior to Phase I bond release, discussed in the preamble of 
Sec. Sec.  800.42(b) and 816.57(e) and the postmining surface drainage 
pattern and stream-channel configuration requirements related to 
ephemeral streams discussed in Sec. Sec.  800.42(b) and 816.56(b), that 
also must occur prior to Phase I bond release.
    We have also modified paragraph (b)(5). As proposed, this paragraph 
merely required ``planting.'' Some commenters alleged that this was 
nebulous. We agree with these commenters and have revised the paragraph 
to clarify that the establishment of appropriate vegetation includes 
the establishment of 100-foot wide, streamside, vegetative corridors 
when required by Sec.  816.56(c), which relates to ephemeral streams, 
and Sec.  816.57(d), which relates to perennial and intermittent 
streams and to clarify that the reclamation plan must include a 
timetable for the planting of all vegetation including vegetation along 
the banks of streams. Furthermore, this requirement, as revised, 
complements the requirements of Sec.  800.42(c), which relates to Phase 
II bond release.
    We also modified proposed (b)(7) for clarity and consistency with 
final rule Sec. Sec.  816.57(g) and 800.42, which relate to the 
requirements and timing of achieving restoration of ecological function 
of all reconstructed perennial and intermittent stream segments. At 
paragraph Sec.  780.12(b)(7), we have clarified that applicants must 
include as part of their timetable a ``demonstration'' that restoration 
of ecological function will be achieved. This is a change from the 
proposed rule, which required ``restoration of the ecological 
function,'' and could have been interpreted as referring to the 
performance of reclamation work rather than to the time when that work 
must be completed. Actual restoration, as required in the performance 
standard of Sec.  816.57(g), must occur prior to Phase III bond 
release. Our intent here is that the timetable establishes a point at 
which the permittee must demonstrate that ecological function has been 
restored.
    Several commenters requested that we require a qualified biologist 
or ecologist to provide written attestation to any stream restoration 
plans and any bond release that includes a restored stream. We did not 
modify the final rule in response to these comments. Our final rule 
incorporates sufficient scientific expertise and success standards. For 
instance, final rule Sec.  780.12(g)(6) now includes the requirement 
that a qualified, experienced biologist, soil scientist, forester, or 
agronomist must prepare or approve the revegetation plan, which 
includes the vegetation found within the streamside vegetative 
corridor. Similarly, all reclamation plans described within final Sec.  
780.13(b) must be prepared by, or under the direction of, and certified 
by a qualified registered professional engineer, a professional 
geologist, or, in any state that authorizes land surveyors to prepare 
and certify maps, plans, and cross-sections, a qualified registered 
professional land surveyor, with assistance from experts in related 
fields such as landscape architecture. These requirements ensure the 
use of experts in establishing the plans for reclamation. Within 
Sec. Sec.  816.111(b) and 817.111(b), we require these plans to be 
followed, and within Sec. Sec.  816.116(d) and 817.116(d), we require a 
scientifically derived success standard for all revegetation. In 
addition, regulatory authorities have the expertise and protocols 
necessary to analyze permit documents and bond release evidence, 
including those in place within Sec. Sec.  780.12(b) and 800.42(b)(4). 
Therefore, this final rule incorporates sufficient scientific expertise 
and success standards and requiring a qualified biologist or ecologist 
to provide written attestation of any stream restoration plans and any 
bond release is not

[[Page 93141]]

warranted. We have not incorporated this into the final rule.
    As proposed, Sec.  780.12(b)(7) added a requirement to demonstrate 
restoration of ecological function of all reconstructed perennial and 
intermittent streams to the list of major steps in the reclamation 
process. This is consistent with final paragraph (b) that requires each 
permit application to include a detailed timetable for completion of 
each major step in the reclamation process. Several commenters opposed 
the addition of proposed paragraph (b)(7) because they thought it was 
redundant of the permit or other authorization required under section 
404 of the Clean Water Act.\280\ We disagree and are retaining 
paragraph (b)(7). The stream restoration requirements in our final rule 
share elements in common with requirements under section 404 of the 
Clean Water Act, but they are not substantively identical.
---------------------------------------------------------------------------

    \280\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

Final Paragraph (c): Reclamation Cost Estimate
    Commenters alleged that by only requiring the reclamation to 
include the standardized construction cost estimation methods and 
equipment cost guides, the proposed rule did not adequately address all 
the factors and costs involved in completing reclamation. Many of these 
commenters use actual cost methods which take in more local factors, 
conditions, and circumstances. After consideration of this comment, we 
have added language to the final rule to allow applicants to use ``up-
to-date actual contracting costs incurred by the regulatory authority 
for similar activities'' in lieu of more broad-based standardized 
construction costs.
    A commenter also questioned the lack of definitions of ``direct'' 
and ``indirect'' costs. We do not believe that ``direct and indirect'' 
costs need to be defined within the regulatory text because they are 
relatively common terms. Another commenter stated that indirect costs 
should not be included as they are irrelevant to the cost of 
reclamation and the calculation of bonds. Indirect cost amounts are 
relevant to bond calculations, as those costs are related to 
administration and overhead. In the event that the regulatory authority 
must forfeit bonds for the purpose of carrying out reclamation plans in 
lieu of the mine operator, costs of a third-party contractor to 
implement the plan, including overhead cost and profit must be 
included. Therefore, we determine that the inclusion of indirect costs 
is essential to an adequate bond calculation. We have made no changes 
based on these comments.
Final Paragraph (d): Backfilling and Grading Plan
    This section of the final rule adds greater specificity to the 
backfilling and grading plan, requiring a description of how the 
operator will compact spoil to reduce infiltration, minimize leaching 
and discharges of parameters of concern, limit the compaction of 
topsoil and soil materials in the root zone to the minimum necessary to 
achieve stability, and identify measures that will be used to alleviate 
soil compaction if necessary. The final rule also requires, if acid-
forming and toxic-forming materials are present, a description of how 
the operator will handle these materials to protect groundwater and 
surface water in accordance with Sec.  816.38 of this chapter.
    Some commenters argued that implementation of the Forestry 
Reclamation Approach by itself would not reduce elevated conductivity 
levels resulting from mountaintop removal mining operations to the 
point at which those levels would no longer damage aquatic life. We 
acknowledge that the comment is correct. However, as discussed in the 
preamble to the proposed rule, there is evidence that the use of the 
Forestry Reclamation Approach will reduce levels of conductivity 
progressively over time.\281\ In addition, our final rule includes 
other measures to address conductivity. The final rule includes a 
definition of ``material damage to the hydrologic balance outside the 
permit area'', in Sec.  701.5; requires baseline information on 
conductivity in Sec.  780.19, requires that the backfilling and grading 
plan describe in detail how spoil will be compacted to reduce 
infiltration and minimize leaching in Sec.  780.12(d)(2)(i); requires 
the elimination of durable rock fills in Sec.  816.71(g); and requires 
that excess spoil be placed in a manner that will minimize adverse 
effects of leachate and runoff on groundwater and surface water, 
including aquatic life in Sec.  816.71(a)(1)).
---------------------------------------------------------------------------

    \281\ Kenton L. Sena, Influence of Spoil Type on Afforestation 
Success and Hydrochemical Function on a Surface Coal Mine in Eastern 
Kentucky (2014). Theses and Dissertations--Forestry. Paper 16, pp. 
39 and 60. See http://uknowledge.uky.edu/forestry_etds/16/ (last 
accessed Nov. 1, 2016).
---------------------------------------------------------------------------

    Proposed paragraph (d)(1) included a sentence stating, ``You must 
limit compaction to the minimum necessary to achieve stability 
requirements unless additional compaction is needed to reduce 
infiltration to minimize leaching and discharges of parameters of 
concern.'' However, we have concluded that this sentence does not 
properly reflect our intent, which was to minimize compaction of soil 
materials in the root zone, while still requiring compaction of spoil 
in order to minimize conductivity levels in leachate and runoff from 
the mine. Therefore, the final rule replaces that sentence with 
paragraphs (d)(2)(i) and (ii). Paragraph (d)(2)(i) requires that the 
backfilling and grading plan describe in detail how spoil will be 
compacted in order to reduce infiltration to minimize leaching and 
discharges of parameters of concern. Paragraph (d)(2)(ii) requires that 
the backfilling and grading plan limit compaction of topsoil and soil 
materials in the root zone to the minimum extent necessary to achieve 
stability. The plan also must identify measures that the permittee will 
use to alleviate soil compaction if it nonetheless occurs. These 
changes better reflect our intent to minimize both compaction and 
conductivity levels.
    Some commenters alleged that there was an apparent contradiction 
between our emphasis on using compaction to ensure stability and reduce 
leaching and our attempts to limit compaction that impedes 
revegetation. Moreover, some commenters opined that our requirements 
related to compaction are impractical as proposed. These commenters 
stated that our standards for limiting compaction are not supported by 
scientific evidence and will require a significant engineering analysis 
by the regulatory authority to determine what the compaction standard 
should be on various portions of the permit. Additionally, one 
commenter in particular stated that the language in this paragraph 
requiring that compaction of backfills be minimized, except as needed 
to reduce infiltration and minimize leaching and discharges, is 
inconsistent with the requirements of Sec.  816.38(a), which requires 
compaction to prevent acid-forming materials from leaching into the 
soil. In response to these comments, we have made changes to the final 
rule at Sec.  780.12(d)(1) and (2) to clarify when compaction must be 
used to minimize infiltration, leaching, and related discharges and 
when compaction is problematic because it impedes revegetation. 
However, we disagree with the commenters who stated that the 
requirement to minimize compaction within the root zone is not 
supported by scientific evidence. In reclamation projects across the 
nation, limiting compaction resulted in increased reclamation success 
(e.g., Forestry

[[Page 93142]]

Reclamation Approach,\282\ Extreme Surface Roughening),\283\ and 
supporting evidence for this can be found on SMCRA permitted sites as 
well as within performance reports, annual reports, and other 
publications authored by us and other SMCRA regulatory authorities.
---------------------------------------------------------------------------

    \282\ Jim Burger et al. The forestry reclamation approach. 
Forest Reclamation Advisory 2 (December 2005).
    \283\ Mary Ann Wright. The practical guide to reclamation in 
Utah. Utah Oil, Gas & Mining Division, Univ. of Utah, (2000).
---------------------------------------------------------------------------

    One commenter alleged that in Sec.  780.12(d) we did not provide a 
rationale for our proposal to increase requirements for backfilling and 
grading plans. The commenter alleged that we did not cite specific 
problems or deficiencies with state regulatory programs under the 
existing language. Specifically, the commenter alleged that we 
inappropriately added a performance standard requiring that applicants 
limit compaction to the minimum necessary to achieve stability. The 
purpose of these provisions is to address the widespread and well known 
water quality issues that have been traced to mineralization of 
infiltrated water, the well-known stream health deficiencies that have 
been traced to inadequate forest cover of streams in previously 
forested areas,284 285 and the associated leaching of 
minerals into water that will be discharged offsite. These provisions 
will ensure that operators make effective plans to minimize compaction 
of spoil near the surface of the fill and to facilitate the 
establishment of vegetation in accordance with the reclamation plan. 
Revegetation contributes to the enhancement of onsite and offsite 
streams. The commenter is correct that we do not cite specific problems 
or deficiencies with the implementation of state regulatory programs in 
order to justify these changes to our regulations. Our inspections and 
other oversight activities in primacy states, including the annual 
evaluation reports, focus on the success of state regulatory 
authorities in achieving compliance with the approved regulatory 
program for the state. They do not identify or discuss situations in 
which the existing regulations provide inadequate protection. The 
provisions of this rule will address adverse impacts that historically 
have been allowed to occur under the existing regulations and that have 
not captured by the annual evaluation reports or other oversight 
activities. We do not agree with the commenter's assumption that this 
requirement constitutes a performance standard. Rather, it is a 
permitting requirement that helps in ensuring that the adequacy and 
effectiveness of proposed backfilling and grading plans.
---------------------------------------------------------------------------

    \284\ Margaret Palmer et al., Mountaintop Mining Consequences. 
327 (5962) Science 148-149.
    \285\ Margaret Palmer & Emily Bernhardt, Mountaintop Mining 
Valley Fills and Aquatic Ecosystems: A Scientific Primer on Impacts 
and Mitigation Approaches. Working paper: 24 (2009).
---------------------------------------------------------------------------

    Another commenter alleged that the requirement to limit compaction 
to the minimum extent necessary to achieve stability was ambiguous and, 
as a result, it would be difficult for the regulatory authority to 
evaluate and monitor compliance in the field due to contradictory 
compaction requirements. We recognize that permit requirements about 
under-compaction and over-compaction were combined in the proposed 
rule, possibly leading to confusion. For clarity, they have been 
separated into paragraphs (d)(2)(i) and (d)(2)(ii) in the final rule.
    Commenters asserted that the submission of contour maps in 
paragraph (d)(1) as part of the backfilling and grading plan is of 
limited use and would need to be continually adjusted to reflect 
changes in market conditions, in geology, or in other on-site factors. 
These commenters allege that cross-sections are a better tool for 
making adjustments to the final surface configuration, including 
drainage patterns, compared to typical cross-sections, which the 
commenters claim, have worked best. We are not making any changes to 
the final rule in response to these comments. Compliance with goals of 
protecting streams and achieving the approximate original contour can 
best be judged through the use of contour maps, which offer more detail 
than a two dimensional cross-section alone. While not every change in a 
reclamation plan would require a new contour map, at a certain point, 
using only cross sections to document revised reclamation plans could 
cause both regulatory authorities and operators to miss potentially 
significant changes in the configuration of the reclaimed land's 
surface, changes that, cumulatively or individually, could 
significantly impact the achievement of approximate original contour 
and the restoration of streams. As an example, poorly located two 
dimensional cross-sections could mask problems with the location and 
shape of the streams that are supposed to be restored, a problem that 
would not occur with a three dimensional contour map. Regulatory 
authorities need to use the best tool for determining whether streams 
are being appropriately restored to form and whether approximate 
original contour is being addressed as changes are made to the approved 
reclamation plan. Contour maps are essential to making those 
determinations. However, we do not allege that cross-sections are 
unnecessary. Contour maps and cross sections are complementary tools 
and regulators should use both to evaluate changes to reclamation plans 
and to monitor compliance.
Final Paragraph (e)(1): Soil Handling Plan--General Requirements
    We proposed in paragraph (e)(1)(i) to require that the soil 
handling plan include a schedule for removal, storage, and 
redistribution of topsoil, subsoil or other materials including the use 
of organic matter. Numerous commenters weighed in on aspects of this 
proposed requirement. Several commenters stated that leaving certain 
organic materials, such as duff and root wads, in replaced topsoil is 
not beneficial for agricultural lands and may result in difficulty 
establishing the vegetation and plant crops that are necessary to prove 
productivity for bond release. Other commenters expressed concern that 
the use of organic material could elevate total suspended solids and 
total dissolved solids, slow reclamation and revegetation, and disrupt 
surface owner priorities and postmining land use plans. Still other 
commenters claimed that the proposed rule did not allow regulatory 
authorities the flexibility to waive these requirements. We agree with 
the commenters that it would be counterproductive to mandate the use of 
organic materials on land where those materials would interfere with 
the success of the approved postmining land use. Instead of making 
changes to this section, however, we have revised Sec.  816.22(f) to 
incorporate flexibility into the performance standards related to the 
salvage, storage, and redistribution of organic material. Specifically, 
the language we added to Sec.  816.22(f)(3) clarifies that the use of 
organic materials in certain agricultural areas is not required. 
Because the use of organic materials in reclamation substantially 
outweighs the disadvantages, however, we have not made revisions to 
other regulations that govern the use of these materials.
    Another commenter alleges that the preamble to the proposed rule 
contains conflicting statements. The commenter alleges that in the 
discussion of organic matter we state that these materials are 
necessary to establish pre-existing plant species to restore land use, 
but this is in conflict with our statement that vegetative cover has 
nothing to do with land use capability. The commenter misinterprets the 
proposed rule preamble discussion because there is no

[[Page 93143]]

statement that the use of organic material is necessary to restore land 
use capability, either by itself or to promote the revegetation of pre-
existing plant species. We conclude that the commenter erred by 
incorrectly referencing our proposed preamble discussion at paragraph 
(e)(1)(ii), where we discussed the salvage and distribution of soil 
necessary to restore land use capability, with the proposed preamble 
discussion of organic matter found at paragraph (e)(1)(i). Within the 
preamble about proposed paragraph (e)(1)(i) we discussed premining land 
use capability, but did not specifically refer to the use of organic 
materials as the commenter alleges.
    One commenter opined that requiring storage and redistribution of 
organic matter exceeds our authority because, according to the 
commenter, SMCRA limits our authority to the removal and replacement of 
topsoil. We disagree. As we explained in the preamble to our proposed 
rule,\286\ the use of organic matter assists in satisfying the 
requirement of section 515(b)(19) of SMCRA \287\ to establish a 
diverse, effective, and permanent vegetative cover of the same seasonal 
variety native to the area; therefore, this requirement is fully within 
our authority. Organic matter contributes to enhancing postmining land 
use capability, enhances revegetation diversity, and aids in 
establishing permanent vegetative ground cover of the same seasonal 
variety native to the area as required for the postmining land use. 
However, as discussed in more detail throughout this preamble, the 
distribution of organic matter is not required when it conflicts with 
certain postmining land uses.
---------------------------------------------------------------------------

    \286\ 80 FR 44436, 44488-4489 (Jul. 27, 2015).
    \287\ 30 U.S.C.1265(b)(19).
---------------------------------------------------------------------------

    Regarding the proposed requirement to salvage topsoil and organic 
materials, we received comments asserting that topsoil is often too 
thin to salvage. Other commenters stated that because thin topsoil is 
often closely integrated with organic matter, it would be difficult to 
separate thin topsoil from organic matter. We also received comments 
alleging that handling of organic materials as prescribed will 
significantly increase the cost of reclamation due to increased hauling 
and storage costs. Other commenters supported the salvage of all 
topsoil and use of organic matter.
    Historically, organic matter has almost universally been either 
burned, which adds to air pollution and the release of greenhouse 
gases, or buried. In either case, the organic matter is not available 
to enhance reclamation of mine sites even though postmining soil 
environments are often highly deficient in organic matter.\288\ 
Moreover, organic matter serves as a seed bank for the reestablishment 
of native plants that would otherwise be lost if that material burned 
or buried. While we recognize that requiring the salvage of all soil, 
topsoil plus subsoil and organic materials, will increase costs over 
spoiling these materials, we are finalizing this rule because the 
salvage of topsoil and organic materials is key to revegetation 
success, the establishment of most postmining land uses, and the 
restoration of premining capability. However, in recognition of limited 
circumstances under which it would not be practical to separate 
organics from topsoil, final rule Sec. Sec.  780.12(e) and 816.22(f), 
when read in conjunction, allow organics and topsoil to be salvaged 
together, when appropriate. This should make the salvage of even thin 
topsoil more cost effective compared to separating topsoil from organic 
materials, and it will be more beneficial than spoiling both materials, 
as frequently has been done.
---------------------------------------------------------------------------

    \288\ Peter Stahl, Accumulation of Organic Carbon in Reclaimed 
Coal Mine Soils of Wyoming; http://asmr.us/Publications/Conference%20Proceedings/2003/1206-Stahl.pdf (last accessed Nov. 1, 
2016) and J.A. Harris, The Impact of Storage of Soils during 
Opencast Mining on the Microbial Community: A Strategist Theory 
Interpretation; http://onlinelibrary.wiley.com/doi/10.1111/j.1526-100X.1993.tb00014.x/abstract (last accessed Nov.1, 2016).
---------------------------------------------------------------------------

    Some commenters discussed potential unintended consequences of the 
proposal to require salvage and storage of organic materials. In 
general, the commenters state these requirements are too prescriptive 
and create more problems than they resolve. More specifically, several 
commenters contended that this requirement would lead to additional 
transportation and storage of organics. Some commenters contended that 
the need for extra storage acres appeared to be at cross-purposes with 
one of the purposes of the proposed rule--to minimize surface 
disturbance when possible. Other commenters expressed concern that 
saving organic material in steep slope areas is challenging and may be 
an unsafe practice which may put workers at risk. Commenters also 
argued that the regulatory authorities should have discretion to 
determine what is best for these materials, given the terrain.
    If it is feasible to mine in steep sloped areas, operators should 
also be capable of safely excavating and salvaging these materials. 
While we recognize that the handling of organic matter has some 
potential for requiring some additional surface disturbance, as 
previously cited, the benefit gained by utilizing organic matter as 
part of reclamation far outweighs negative impacts associated with 
disturbing additional acres. Because of these benefits, we are 
retaining the requirement to salvage, store, and redistribute the 
organic material. We added language to the final rule to ensure that 
the requirements which govern the placement of organic matter do not 
conflict with certain agricultural or other postmining land uses. 
Additionally, in locations where significant populations of invasive 
plant species are documented, those organic materials may be buried, 
but not burned, as provided for in Sec. Sec.  816.22(f)(3)(iii) and 
816.22(f)(4).
    We proposed to require that three soil horizons, topsoil, B 
horizon, and C horizon, be removed, segregated, stockpiled, and 
redistributed to achieve the optimal rooting depth as a final growing 
medium. We received many comments on this proposal. Several commenters 
argued that this requirement would place an unnecessary burden on state 
regulatory authorities because the regulatory authorities would expend 
more time reviewing the soil handling plan and significantly more time 
inspecting the operation to ensure the proper removal and replacement 
of all three horizons. One commenter asserted that successful soil 
restoration has been achieved in instances where soil horizons were 
mixed. Another commenter referenced circumstances where some soil 
horizons, including some topsoil, can demonstrate characteristics 
adverse to soil reconstruction and reestablishing vegetation. 
Specifically, the commenter referenced soils with unfavorable sodium 
content and some topsoil that is salt-affected, and advocated that 
these should not be salvaged or spread again. Another commenter noted 
that this portion of the proposed rule appeared to be based upon 
achieving reforestation on Appalachian mines and may not be appropriate 
in other parts of the country. Some commenters opposed proposed 
paragraph (e)(1)(ii), which specified that the reclamation plan must 
require the removal, segregation, stockpiling, and redistribution of 
the B and C soil horizons and materials other than topsoil in order to 
achieve the optimal rooting depths required to restore premining land 
use capability and to comply with revegetation requirements. They 
alleged that the proposed rule is inconsistent with paragraphs (b)(5) 
through (7) of section

[[Page 93144]]

515 of SMCRA,\289\ which require salvage and redistribution soil 
materials, other than topsoil, only for prime farmland and in 
situations in which the subsoil or other materials have been approved 
as a topsoil substitute. They asserted that requiring the salvage of 
subsoil or other materials for anything other than prime farmland is 
not supported by SMCRA. As we explained in the preamble to our proposed 
rule, scientific studies have determined that an adequate root zone is 
critical to plant growth and survival, and that topsoil alone generally 
does not provide an adequate root zone. See 80 FR 44488-44489 (Jul. 27, 
2015). These studies document that salvage and redistribution of 
topsoil alone will not necessarily restore the mine site to a condition 
in which it is capable of supporting the uses that it was capable of 
supporting before any mining, as required by section 515(b)(2) of 
SMCRA.\290\ Therefore, salvage and redistribution of subsoil and other 
soil materials will be necessary on sites other than prime farmland in 
order to meet the requirements of section 515(b)(2) \291\ of SMCRA. 
Consistent with this rationale, the final rule differs slightly from 
the proposed rule in that final 30 CFR 780.12(e)(1)(ii) requires 
salvage, stockpiling (if necessary), and redistribution of the B and C 
soil horizons and other underlying strata only ``to the extent and in 
the manner needed'' to achieve the optimal rooting depths required to 
restore premining land use capability and to comply with revegetation 
requirements. Addition of the qualifier ``if necessary'' with respect 
to stockpiling reflects the fact that stockpiling may not be needed if 
salvaged materials can be immediately redistributed on backfilled 
areas.
---------------------------------------------------------------------------

    \289\ 30 U.S.C. 1265(b)(5) through (7).
    \290\ 30 U.S.C. 1265(b)(2).
    \291\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    In addition, paragraph (e)(1)(ii) includes the addition of certain 
exceptions in recognition of circumstances when the segregation of the 
B and C soil horizons and other underlying strata is not required. We 
made this change in response to comments urging us to allow blending of 
soil horizons when experience has demonstrated that doing so results in 
a superior growing medium. As a further response to these comments, we 
added an exception at paragraph (e)(1)(iv, which allows blending of the 
B horizon, C horizon, and other underlying strata, or portions thereof, 
to the extent that research or prior experience under similar 
conditions has demonstrated that blending will not adversely affect 
site productivity. Finally, we added an exception at paragraph 
(e)(1)(iii in response to comments objecting to use of the B and C 
horizons when one or both of those horizons have physical or chemical 
characteristics that make them inferior to other overburden materials 
in creating a medium conducive to plant growth. Paragraph (e)(1)(iii) 
specifies that the soil handling plan need not require salvage of the B 
and C soil horizons if the applicant demonstrates that those horizons 
are inferior to other overburden materials as a plant growth medium, 
provided that the applicant complies with the soil substitute 
requirements of paragraph (e)(2). We also note that, while several of 
the reference materials we cite relate to issues of Appalachia 
reforestation,\292\ soils outside Appalachia will likewise benefit from 
this enhanced recovery of soil resources.\293\ In addition, we expect 
that these requirements will result in greatly improved quality of the 
growth medium needed to ensure the restoration of premining capability 
and revegetation. Finally, because the process of reviewing and 
approving reclamation plans, as well as inspecting sites for compliance 
is well established, we conclude that these requirements will not place 
an added burden upon the regulatory authorities.
---------------------------------------------------------------------------

    \292\ Carl E. Zipper et al., Rebuilding Soils on Mined Land for 
Native Forest in Appalachia, 77 Soil Sci. Am. J. 337-349 (2012).
    \293\ Alberta Transp. Alberta Transportation Guide to Reclaiming 
Borrow Excavations, p. 5-6 (December 2013).
---------------------------------------------------------------------------

    Additional commenters also asserted that the regulatory authority 
should have the discretion to make case-by-case determinations about 
the redistribution of soil materials and the depths at which those 
materials must be buried. These commenters noted that each state 
already has an acceptable method to demonstrate compliance with the 
soil redistribution requirements. These commenters cite the many years 
of successful bond releases as evidence that the current process for 
making determinations related to soil materials is adequate. We agree 
that determinations on the redistribution of soil materials should be 
based on site-specific information and the experience of local experts, 
and this rule does not depart from this perspective. Although this rule 
requires the regulatory authority to make additional determinations, 
the regulatory authority remains the ultimate decision-maker on the 
handling and replacement of soils, and its decisions will be based on 
local, site-specific conditions. This rule is necessary to align our 
regulations with the specific requirements of SMCRA sections 
508(a)(2)(B) \294\ and 515(b)(2),\295\ which require that we ensure 
successful revegetation and the restoration of premining land use 
capability.
---------------------------------------------------------------------------

    \294\ 30 U.S.C. 1258(a)(2)(B).
    \295\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Several commenters objected to the proposed requirement to develop, 
as part of the reclamation plan, a soil handling plan that will restore 
the land to premining capability. These commenters indicated that it 
would be better to design a soil handling plan to accommodate the 
approved postmining land use provided for in Sec.  816.111 of our 
regulations because the regulatory authority measures the success of 
the reclamation by achievement of that use. Commenters further alleged 
that the proposed rule would lead to confusion because, prior to this 
rule, reclamation success has always been determined by the ability to 
achieve the approved postmining land use.
    We disagree. Section 515(b)(2) of SMCRA \296\ requires that mine 
operators ``restore land affected to a condition capable of supporting 
the uses which it was capable of supporting prior to any mining. . . 
.'' Section 508(a)(2) of SMCRA requires that the reclamation plan in 
the permit application demonstrate that the reclamation can be 
successfully accomplished.\297\ This requires the regulatory authority 
to assess of the capability of the land to support a variety of uses 
prior to any mining.\298\ This assessment must include an assessment of 
the premining physical characteristics of the land and a determination 
regarding the various land uses the site would be able to support. 
Although revegetation success standards are essential to determining 
whether the postmining land use has been attained, revegetation alone 
does not ensure that reclamation has restored the land's capability to 
support the uses it was determined capable of supporting prior to any 
mining. If prior to any mining the land had significant physical 
restrictions or limitations due to, for example, slope or natural 
soils, the postmining reclamation might be limited. If, however, the 
land had few physical limitations and was capable of supporting a wide 
variety of uses prior to any mining, the land must be capable of 
supporting the same variety of uses after reclamation.
---------------------------------------------------------------------------

    \296\ 30 U.S.C. 1265(b)(2).
    \297\ 30 U.S.C. 1258(a)(2)(B).
    \298\ Id.

---------------------------------------------------------------------------

[[Page 93145]]

Final Paragraph (e)(2): Soil Handling Plan--Substitutes and Supplements
    While existing regulations allow the use of materials as topsoil 
substitutes and supplements if those materials are ``equal to or better 
than'' the topsoil, the proposed rule would allow the approval of 
topsoil and subsoil substitutes and supplements only if those materials 
would create a better growing medium than the original topsoil or 
subsoil. Commenters opined that the existing regulations work well, 
that a change is not needed, and that we have not satisfactorily 
explained why we proposed to make this change. Other commenters stated 
that if we intend to require the use of better materials, that 
requirement should be limited to substitute topsoil and not extended to 
subsoil as well. We disagree. As explained in the preamble to the 
proposed rule,\299\ these new regulations will better implement section 
515(b)(5) of SMCRA,\300\ which allows use of other strata'' . . . if 
topsoil is of insufficient quantity or of poor quality for sustaining 
vegetation, or if other strata can be shown to be more suitable 
(emphasis added) for vegetation requirements.'' \301\ Under this 
standard subsoil substitutes, like topsoil, must be ``more suitable'' 
than the existing topsoil in order to satisfy vegetation requirements. 
Moreover, this provision of our rule is consistent with the 
requirements of 515(b)(2) \302\ in that it will assist in the 
restoration of premining capability by encouraging development of the 
root zone required by many plants for physical support, moisture and 
nutrient uptake.\303\ Thus, we are making no changes to the proposed 
rule with respect to subsoil substitutes.
---------------------------------------------------------------------------

    \299\ 80 FR 44436, 44489-44490, (Jul. 27, 2015)).
    \300\ 30 U.S.C. 1265(b)(5).
    \301\ 30 CFR 1265(b)(5).
    \302\ 30 U.S.C. 1265(b)(2).
    \303\ Alberta Transp. Alberta Transportation Guide to Reclaiming 
Borrow Excavations, p. 5-6, (December 2013).
---------------------------------------------------------------------------

    Commenters further stated that the proposal to require the ``best 
materials'' available is unnecessarily restrictive, places an 
unnecessary burden on regulatory authority resources, and requires more 
monitoring with little benefit. We disagree. The use of the best 
materials available will ensure better reclamation. Additionally, while 
we have raised the threshold on what materials may be considered as an 
acceptable substitute for subsoil, the process for using substitutes is 
essentially the same and should place no greater burden on regulatory 
staff. As such, we are not altering the final rule in response to these 
comments.
    Several commenters questioned the criteria permitting the use of 
soil supplement and substitution materials. These commenters alleged 
that the proposed regulations are not consistent with section 515(b)(5) 
of SMCRA,\304\ which allows soil substitution and supplements ``if 
other strata can be shown to be more suitable for vegetation 
requirements . . . .'' These commenters alleged that the proposed 
regulations ignore the term ``more suitable''. These commenters 
suggested that we revise the regulations to use the ``best overburden 
material available.'' We have declined to make this change. Our final 
regulations for the use of soil supplements and substitutes are fully 
consistent with section 515(b)(5) of SMCRA.\305\ As noted above, 
section 515(b)(5) of SMCRA allows for soil substitution and supplements 
if a demonstration can be made that other strata are ``more suitable 
for vegetation requirements . . . .'' Paragraph (e)(2)(i)(B) (purposed 
as (e)(2)(ii)(B), which we are finalizing today with only minor edits 
for clarity, allows for the use of substitutes and supplements if 
``[t]he use of the overburden materials that you have selected . . . 
will result in a soil medium that is more suitable than existing 
topsoil and subsoil to support and sustain vegetation . . . .'' 
(Emphasis added.) This language is fully consistent with the language 
to section 515(b)(5). Likewise, final paragraph (e)(2)(i)(C) [proposed 
as (e)(2)(ii)(C)] is also consistent with section 515(b)(5) of SMCRA. 
That paragraph allows for substitutes and supplements if ``[t]he 
overburden materials that . . . you select for use as a soil substitute 
or supplement [materials that] are the best materials available in the 
proposed permit area to support . . . vegetation consistent with the 
postmining land use and the revegetation plan . . .''. (Emphasis 
added.) Therefore we are not modifying the final rule based on these 
comments.
---------------------------------------------------------------------------

    \304\ Id.
    \305\ Id.
---------------------------------------------------------------------------

    Several commenters stated that the inclusion of a number of 
characteristics for consideration, such as total depth, texture, and pH 
of soil horizons and overburden material in paragraph (e)(2)(iii)(B), 
are unnecessary and costly to test and compare. Commenters specifically 
objected to the inclusion of ``thermal toxicity,'' which they indicated 
is a term that is generally used relating to water, not soil. These 
commenters were uncertain about what that parameter required. In 
response to these comments, we have eliminated the term ``thermal 
toxicity'' from the final rule. While this term is applicable to soil, 
the commenter is correct in stating that it is more commonly used in 
association with water and aquatic organisms' tolerance to temperature. 
On reconsideration we have decided the added value of including this 
characteristic as it relates to soil substitute materials is limited 
and will not be required. However, the other characteristics listed in 
proposed Sec.  780.12(e)(2)(iii)(B) are all essential to conducting a 
comprehensive analysis of whether a material is an acceptable 
substitute. Moreover, with the exception of ``thermal toxicity,'' which 
we did not include in the final rule, all of the soil characteristics 
included in final paragraph (e)(2)(iii)(B) were included in previous 
Sec.  780.18(b)(4). Additionally, any one of these characteristics 
individually, if sufficiently adverse, could impact the success of 
revegetation. For example, a potential substitute material may have an 
excessively low pH. This factor alone could render it unacceptable as a 
substitute material. The final rule requires the regulatory authority 
to examine these factors in a thorough and comprehensive fashion.
    We received comments alleging that it is unnecessarily duplicative 
to require the testing of substitute soil materials twice--once to 
prove they are suitable and then again after they have been placed. We 
disagree. Testing of substitute materials before placement is necessary 
because the testing serves as a baseline for the substitution plan, 
while testing after placement is needed to ensure that the substitution 
plan has been properly implemented.
    A commenter stated that expansion of the soils-related regulations 
requires soil science expertise that many regulatory authorities lack. 
Any soil science expertise and costs related to address that need, if 
currently unavailable within a regulatory program, would certainly be a 
legitimate program cost, and, subject to appropriation, states would be 
eligible to receive matching grant funding to assist with these 
expenses.
Final Paragraph (f): Surface Stabilization Plan
    Several commenters considered this paragraph to be a new permitting 
requirement. They generally contend that there is no value in this 
addition and claim that it was proposed without justification. In 
addition, some commenters asserted that proposed paragraph (f) should 
be removed because it is duplicative of other non-SMCRA related 
requirements governing the content of a mine's air quality

[[Page 93146]]

permits. Another commenter suggested that the regulation be relocated 
or revised to better explain the associated permitting requirements. We 
disagree. As explained in the preamble to the proposed rule,\306\ the 
surface stabilization plan required by paragraph (f) is the permitting 
counterpart to the performance standards at Sec.  816.95, which 
requires that all exposed surface areas must be protected and 
stabilized to effectively control erosion and air pollution attendant 
to erosion, and 30 CFR 816.150 and 816.151, which require dust control 
on mine roads. This permitting requirement, which we are adopting as 
part of the final rule, allows the regulatory authority to evaluate the 
anticipated adequacy and effectiveness of proposed surface 
stabilization measures. Additionally, while many facets of air quality 
are not governed by SMCRA, it is clearly within our SMCRA authority to 
regulate air pollution attendant to erosion caused by mining activity. 
Therefore we are not modifying the final rule based on this comment.
---------------------------------------------------------------------------

    \306\ 80 FR 44436, 44490 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (g): Revegetation Plan
    Final paragraph (g) is substantively identical to proposed 
paragraph (g), except as discussed below.
    Proposed paragraph (g)(1)(v) provided that the revegetation plan 
must include the species to be planted and the seeding and stocking 
rates and planting arrangements to be used to achieve or complement the 
postmining land use and to enhance fish and wildlife habitat. Final 
paragraph (g)(1)(v) adds a requirement that the revegetation plan 
include the species to be planted and the seeding and stocking rates 
and planting arrangements to be used to achieve the streamside 
vegetative corridor provisions of final Sec. Sec.  816.56(c) and 
816.57(d), when applicable. We added this requirement to emphasize the 
critical nature of streamside vegetative corridors in achieving 
restoration of streams that are mined through.
    One commenter requested that we implement, to the maximum extent 
practicable, measures to support pollinators with respect to native 
plants, consistent with the Presidential Memorandum dated June 20, 
2014, ``Creating a Federal Strategy to Promote the Health of Honey Bees 
and Other Pollinators.'' In response to this comment, we added 
paragraph (g)(1)(v)(B) to the final rule. That paragraph provides that, 
to the extent practicable and consistent with other revegetation and 
regulatory program requirements, the species mix must include native 
pollinator-friendly plants and the planting arrangements must promote 
the establishment of pollinator-friendly habitat.
    In response to a comment, we revised Sec.  780.12(g)(1)(ix), 
regarding normal husbandry practices, to correctly cross-reference 
Sec.  816.115(d).
    Commenters recommended that we revise paragraph (g) to require that 
the selection of revegetation material take into account habitats for 
the wildlife species with the greatest conservation need, as determined 
by the state wildlife agency, the U.S. Fish and Wildlife Service, and 
regional or national wildlife conservation initiatives. According to 
the commenters, species of concern, which include many grassland birds, 
may benefit by replacing premining forested lands with grassland 
habitat.
    Revisions of the nature advocated by the commenters may exceed our 
authority under SMCRA. In particular, adoption of a rule promoting the 
establishment of grasslands in place of the forests that would 
naturally exist on those sites would be inconsistent with section 
515(b)(19) of SMCRA, which requires that the permittee ``establish on 
the regraded areas, and all other lands affected, a diverse, effective, 
and permanent vegetative cover of the same seasonal variety native to 
the area of land to be affected and capable of self-regeneration and 
plant succession at least equal in extent of cover to the natural 
vegetation of the area.'' \307\ However, the final rule does require 
that permit applications include appropriate fish and wildlife 
enhancement measures. Specifically, final Sec.  780.16(d)(2)(iv) 
promotes the reestablishment of native forests or other native plant 
communities, both within and outside the permit area.
---------------------------------------------------------------------------

    \307\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    Many commenters supported proposed paragraph (g)(1)(xi), which 
required that the applicant describe the process for monitoring and 
controlling invasive species. Other commenters requested an explanation 
of how the rule would apply to naturalized invasive or non-native 
species or when invasive or non-native species drift from adjacent 
lands and establish themselves on the mine site. The final rule does 
not distinguish between naturalized non-native species and non-native 
species that are not naturalized. Nor does it differentiate on the 
basis of how non-native species arrive on the mine site. Instead, it 
differentiates on the basis of whether the volunteer non-native species 
are invasive. In all cases, final paragraph (g)(1)(xi) requires that 
the revegetation plan identify the measures that the permittee will 
take to avoid the establishment of invasive species on reclaimed areas 
or to control those species if they do become established. We recognize 
that it may not be possible to completely avoid the presence of some 
invasive species. The bottom line is that invasive species must not be 
present in quantities that would prevent attainment of the revegetation 
success standards established in accordance with final Sec.  816.116.
    At least one commenter suggested that we move proposed paragraphs 
(g)(2) and (3) to part 816 and make them performance standards. We 
declined to make this change. The revegetation plan, which is submitted 
and approved as part of the permit, is a critical component of the 
planning stage. After the permit, which includes the revegetation plan, 
is approved, the permittee then is obligated to comply with the terms 
and conditions of the approved permit. However, in reviewing the 
structure of proposed paragraphs (g)(2) and (3) in response to this 
comment, we determined that the requirement in proposed paragraph 
(g)(2) that the species and planting rates and arrangements selected as 
part of the revegetation plan meet the requirements of paragraphs (a) 
and (b) of Sec.  816.116 is not appropriate. Paragraph (a) of Sec.  
816.116 requires that the regulatory authority select standards for 
revegetation success and statistically valid sampling techniques. 
Paragraph (b) of Sec.  816.116 requires that the revegetation success 
standards reflect the revegetation plan requirements of Sec.  
780.12(g). Nothing in those two paragraphs would impact development of 
the revegetation plan. Therefore, final paragraph (g)(2) does not 
include the provision in proposed paragraph (g)(2) that would have 
required that the revegetation plan meet the requirements of paragraphs 
(a) and (b) of Sec.  816.116.
    Final paragraph (g)(3)(vii) differs from proposed paragraph 
(g)(3)(vii) in that the final rule does not include mention of state 
and federal poisonous plant laws. We made this change because we are 
not aware of any state or federal poisonous plant laws.
    Some commenters requested the rule include more specific 
information on the meaning of native plant communities and the natural 
succession process. Final paragraph (g)(3)(iv) differs slightly from 
its counterpart in the proposed rule in that we added a clarification 
that the species in the revegetation plan must be consistent with the 
appropriate stage of natural succession in the native plant communities 
described in Sec.  779.19 of

[[Page 93147]]

the final rule. In other words, we do not intend to require planting of 
species that would not survive on drastically disturbed sites.
    Several commenters stated that the standards for revegetation are 
not clear and asked whether sites are to be returned to the vegetation 
that existed prior to human influence. If this is the case, the 
commenters stated, this requirement would be impossible to meet in 
situations where non-native vegetation constitutes a significant 
portion of the premining landscape. The final rule does not necessarily 
require that the site be revegetated with the species that 
characterized the site before it was altered by human activities. The 
species selected must be suitable for the postmining land use. Final 
paragraph (g)(3)(i) requires use of species native to the area, but it 
also allows use of introduced species as part of the permanent 
vegetative cover for the site if the introduced species are both non-
invasive and necessary to achieve the postmining land use, planting of 
native species would be inconsistent with the approved postmining land 
use, and the approved postmining land use is implemented before the 
entire bond amount for the area has been fully released under 
Sec. Sec.  800.40 through 800.43. Final paragraph (g)(3)(i) is 
consistent with section 515(b)(19) of SMCRA,\308\ which requires 
establishment of ``a diverse, effective, and permanent vegetative cover 
of the same seasonal variety native to the area of land to be affected 
and capable of self-regeneration and plant succession at least equal in 
extent of cover to the natural vegetation of the area; except, that 
introduced species may be used in the revegetation process where 
desirable and necessary to achieve the approved postmining land use 
plan.'' Moreover, the default requirement in the final rule for use of 
native species is consistent with Section 2(a)(2)(i) of Executive Order 
13751 stating, ``[i]t is the policy of the United States to prevent the 
introduction, establishment, and spread of invasive species, as well as 
to eradicate and control populations of invasive species that are 
established.'' Moreover, that Executive Order provides that Federal 
agencies to ``the extent practicable and permitted by law . . . prevent 
the introduction, establishment, and spread of invasive species.'' 
\309\
---------------------------------------------------------------------------

    \308\ 30 U.S.C. 1265(b)(19).
    \309\ Sec. 1 Policy and Sec. 2 Federal Agency Duties. 81 FR 
88609 (Dec. 8, 2016).
---------------------------------------------------------------------------

    Many commenters supported the requirement to reclaim lands using 
predominantly native species. Other commenters considered the proposed 
requirement too stringent; they recommended fewer restrictions on the 
use of non-native species and more flexibility for the regulatory 
authority to approve vegetation plans based on local conditions. As 
previously explained, our final regulations allow for the appropriate 
use of introduced species for reclamation, as long as they are not 
invasive. Requirements to use native species (and, where appropriate, 
introduced, non-invasive species) for reclamation allow the regulatory 
authority to approve vegetation plans based on local conditions. They 
also minimize the risk of allowing non-native species to be introduced 
when they are not the best choice for long-term reclamation.
    We also received comments that alleged that the requirement to use 
native vegetation conflicted with the requirement to achieve a 
condition in which the site will support a productive postmining land 
use and the requirement for use of species capable of self-regeneration 
and natural succession. The commenters alleged that the proposed 
requirements were neither sufficient nor the most productive way to 
achieve the postmining land use. These commenters noted that many non-
native species might prove better candidates for achieving 
productivity, self-regeneration, and natural succession. Similarly, 
some commenters expressed concern that use of native species is not 
always suitable or best for a particular postmining land use, and that 
restoring the premining vegetation may conflict with fish and wildlife 
postmining land uses that involve elk and other game species.
    Nothing in our rules prohibits revegetation of sites with a fish 
and wildlife postmining land use with species appropriate for the 
wildlife for which the site will be managed. Furthermore, final Sec.  
780.12(g)(3)(i), which incorporates the provisions of proposed 
paragraph (g)(6), allows the applicant to propose, and the regulatory 
authority to approve, use of introduced species to achieve a particular 
postmining land use, provided certain conditions are met. Final 
paragraphs (g)(3)(i) and (g)(4) allow the use of introduced species if 
(1) the introduced species are needed to achieve a quick-growing, 
temporary, stabilizing cover on disturbed and regraded areas, and the 
species selected to achieve this purpose will not impede the 
establishment of permanent vegetation; (2) the postmining land use 
requires the use of introduced, non-invasive species, and (3) the 
postmining land use will be implemented before the entire bond amount 
for the area has been fully released. These provisions provide the 
flexibility needed to allow the use of introduced species for 
agricultural postmining land uses. Therefore, final paragraph (g)(5) 
does not include the provision in proposed paragraph (g)(5) that would 
have allowed the regulatory authority to exempt lands with long-term, 
intensive agricultural postmining land uses from the requirements of 
paragraph (g)(3)(i).
    Some commenters requested that we include a definition of 
``resembles'' within Sec.  780.12(g)(3)(ii), which requires ``a 
permanent vegetative cover that resembles native plant communities in 
the area.'' We find it unnecessary to define this term. The final rule 
allows the regulatory authority the flexibility to approve a native, 
non-invasive vegetative cover that would allow for natural succession 
specific to that site. To the extent that more explanation is needed, 
section 515(b)(19) of SMCRA requires that the permittee ``establish on 
the regraded areas, and all other lands affected, a diverse, effective, 
and permanent vegetative cover of the same seasonal variety native to 
the area of land to be affected and capable of self-regeneration and 
plant succession at least equal in extent of cover to the natural 
vegetation of the area. . . .'' \310\
---------------------------------------------------------------------------

    \310\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    We updated proposed paragraph (g)(4) in the final rule to more 
clearly reflect our intent to allow the regulatory authority to approve 
the use of introduced species when controlling erosion, but only if 
such use does not impede establishment of the permanent vegetation 
needed to meet revegetation success standards. We made this change is 
in response to commenters who asked for clarity about natural 
succession and the establishment of permanent native vegetation.
    We also made a change to paragraph (g)(6) of the final rule. The 
proposed rule required that a professional forester or ecologist 
develop and certify any revegetation plan that includes trees or 
shrubs. Many commenters expressed concern over this requirement and 
noted that many other experienced professionals have the expertise to 
design and certify these plans. Some commenters observed that states 
may not professionally recognize or certify ecologists, and in those 
states that do certify ecologists, it may be rare to find an ecologist 
with sufficient experience to develop and certify revegetation plans 
for coal mining operations. We agree and have modified the final rule 
to address these concerns. Under the

[[Page 93148]]

final rule, any qualified and experienced biologist, soil scientist, 
forester, or agronomist can now prepare or approve all revegetation 
plans. This change allows a wide variety of qualified and experienced 
professionals to approve these plans. We trust that a qualified and 
experienced professional in one subject area may consult with other 
appropriate individuals as necessary to prepare or approve the 
revegetation plan.
    Another commenter suggested that we replace all references to 
``introduced'' species with ``invasive'' species. We did not make this 
change. These terms are not synonyms (i.e., there are introduced 
species that are not invasive), and there are instances where 
``introduced'' is more appropriate. The final rule at Sec.  701.5 
defines invasive species as ``an alien species (a species that is not 
native to the region or area), the introduction of which has caused or 
is likely to cause economic or environmental harm or harm to human 
health''. The final rule prohibits use of these species for 
revegetation under SMCRA. However, introduced species that are non-
invasive may be used in reclamation, as provided in final Sec.  
780.12(g)(3).
    Other commenters expressed opposition to the proposed rule because 
they considered the previous regulations sufficient and not in need of 
any updates. We disagree. While it is true that under SMCRA, voluntary 
best practices have advanced to minimize the effect of introduced, 
invasive species on the natural processes and capability of reclaimed 
land, (as examples: the elimination in most instances of using crested 
wheatgrass, Agropyron cristatum,\311\ Kentucky 31 tall fescue, Lolium 
arundinaceum,\312\ and smooth brome, Bromus inermis; \313\ using the 
Forestry Reclamation Approach; \314\ and extreme surface roughening 
\315\), the previous regulations were insufficient because they did not 
require use of these best practices.
---------------------------------------------------------------------------

    \311\ Gerald E. Schuman, Mined land reclamation in the Northern 
Great Plains: Have we been successful ?, Proceedings 19th Annual 
Meeting, American Society of Mining and Reclamation. 2002.
    \312\ U.S. Dep't. of Agric., NRCS, (2002). Tall Fescue, Lolium 
arundinaceum Plant Fact Sheet.
    \313\ U.S. Dep't. of Agric., NRCS, (2006). Smooth brome, Bromus 
inermis Plant Fact Sheet.
    \314\ Jim Burger, et al. The forestry reclamation approach. 
Forest Reclamation Advisory 2 (2005).
    \315\ M.A. Wright, The practical guide to reclamation in Utah. 
Univ. of Utah, Utah Oil, Gas & Mining Division, (2000).
---------------------------------------------------------------------------

    Commenters also opined that these new regulations may not 
accommodate landowner desires. We agree that this statement may 
sometimes be true, but section 515(b)(19) of SMCRA requires the 
establishment of ``a diverse, effective, and permanent vegetative cover 
of the same seasonal variety native to the area of land to be affected 
and capable of self-regeneration and plant succession at least equal in 
extent of cover to the natural vegetation of the area.'' Landowners may 
replant the site with other species if they wish after final bond 
release, which terminates jurisdiction under SMCRA.
    Other commenters claimed that the proposed rule's emphasis on 
native species is flawed due to concerns about the availability and 
survivability of native species, as well as their additional cost. We 
agree that these native species requirements could increase short-term 
reclamation costs, but they are not cost-prohibitive. The use of native 
species is the best technology currently available, and in the long-
term, this requirement could also lower maintenance costs. We disagree 
that the availability and survivability of native species should 
prohibit our requirement to use them to reclaim SMCRA permitted 
disturbances. Native species are currently in wide use as best 
practices in SMCRA and non-SMCRA reclamation across the United States, 
and substantial progress continues to be made in the availability and 
diversity of native species. Best practices include contracting with 
growers to produce seed from the premining vegetation or from adjacent 
(and appropriate) areas for use in reclamation. This enhances the 
establishment and the survivability of the native species that are 
used.
    Commenters also expressed concern that the proposed regulations 
would effectively eliminate postmining land use options other than 
forest. We disagree. As explained in the preamble discussion at section 
701.5 within the ``land use'' definition, there are several acceptable 
postmining land uses, and forest is only one potential postmining land 
use. In addition, the revegetation plan set forth in this paragraph 
only requires the proposed vegetative cover to be consistent with both 
the approved postmining land use and the establishment of the plant 
communities described in the permit application, as required by Sec.  
779.19. Only those portions of the proposed permit area that are 
forested at the time of permit application or that would revert to 
forest under conditions of natural succession must be revegetated using 
native tree and understory species. This requirement would not apply 
when a postmining land use other than forestry has been approved, 
provided reforestation is inconsistent with the land use and provided 
that the approved postmining land use is implemented before final bond 
release.
Final Paragraph (h): Stream Protection and Reconstruction Plan
    A commenter expressed concern that the steps in this plan would be 
inflexible and result in inappropriate enforcement actions that do not 
take into account the time required for restoration and recovery of 
natural stream functions. The commenter stated that Sec.  780.12(h) 
implies that it is possible to predict when biological stream functions 
might be restored, a characterization with which the commenter 
disagrees. We do not agree that the regulation is inflexible or that it 
would result in inappropriate enforcement actions. We recognize that 
once a permittee completes construction of the stream channel and 
plants of the streamside vegetative corridor, there are few, if any, 
measures that may be taken to speed ecological restoration. The rule 
does not anticipate any enforcement action for failure to achieve 
restoration of ecological function within any specific time. However, 
it requires that final bond release be delayed until that requirement 
is accomplished.
    A commenter stated that the use of the term ``restoration'' 
relating to streams should be changed to ``reclamation'' because the 
term ``restoration'' is not included in the definitions section of 
SMCRA. We have not made this change. The absence of the term in SMCRA 
does not prohibit its use, where appropriate, in our regulations. 
Moreover, section 508(a)(9) of SMCRA requires the permittee to include 
in the reclamation plan a statement of ``the steps to be taken to 
comply with the . . . water quality laws and regulations.'' \316\ As 
discussed further in Sec. Sec.  780.27, 780.28, 816.56, and 816.57, the 
establishment of standards for restoration of ecological function must 
be in coordination with the appropriate Clean Water Act authority to 
ensure compliance with all Clean Water Act requirements, where 
applicable. Further, the term ``restoration'' is appropriate in the 
context of ecological function restoration requirements for streams, 
whereas the term ``reclamation'' would be far less clear.
---------------------------------------------------------------------------

    \316\ 30 U.S.C. 1258(a)(9).
---------------------------------------------------------------------------

    A commenter opined that because the Clean Water Act requires stream 
restoration plans, there is no need for a SMCRA review and approval of 
proposals to mine through a perennial or intermittent stream. 
Therefore, according to the commenter, we should simply reference the 
Clean Water Act

[[Page 93149]]

permit. The commenter further suggests that this requirement be 
modified or removed as it is duplicative of requirements of other 
agencies, supersedes the Clean Water Act, and is in violation of 
section 702 of SMCRA.\317\
---------------------------------------------------------------------------

    \317\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    We disagree with the commenter's assertion that this requirement 
supersedes the Clean Water Act. In Part IV.I., above, we further 
discuss the relationship between SMCRA and Clean Water Act. While Clean 
Water Act stream restoration plans may serve as the basis for the 
restoration plan required by our final rule, (which is further 
justification for coordination with the Clean Water Act authority in 
the development of such plans), the regulations referenced in our final 
rule address the need for a plan that restores stream form, hydrologic 
function and ecological function. The completion of these various 
phases of a stream restoration plan are all tied to bond release; 
therefore it is critical that any plan utilized be incorporated into 
the SMCRA permit. In addition, the Clean Water Act authority may not 
always require a stream restoration plan, but may instead require 
mitigation in accordance with Clean Water Act provisions. It is not 
uncommon for mitigation to consist of in-lieu fee payments to a 
``mitigation bank'' which negates the obligation to actually restore 
the lost stream functions required by the final rule. Our regulations 
require a demonstration that intermittent and perennial streams can be 
restored hydrologically and ecologically, otherwise the regulatory 
authority may not approve of a request to mine through such steams. 
Therefore we cannot rely on provisions within the Clean Water Act to 
satisfy this requirement.
Final Paragraph (l): Compliance With the Clean Air Act and the Clean 
Water Act
    This section requires that the reclamation plan describe the steps 
to comply with the requirements of the Clean Air Act,\318\ the Clean 
Water Act,\319\ and other applicable air and water quality laws and 
regulations and health and safety standards. A commenter asserted that 
there is no rational basis for this requirement and recommends that we 
remove it because it is unnecessary for an applicant to describe the 
steps taken or that are to be taken in association with laws other than 
SMCRA. In support of this assertion, the commenter states that the 
permittee must comply with all applicable applications, regulations, 
and permit approval documents of other applicable laws or face 
enforcement mechanisms by the pertinent agencies to compel compliance. 
We disagree with the commenter because section 508(a)(9) of SMCRA \320\ 
specifically requires that the applicant demonstrate in the reclamation 
plan ``the steps to be taken to comply with applicable air and water 
quality laws and regulations and any applicable health and safety 
standards.'' \321\ Because this is a statutory requirement, it cannot 
be removed as the commenter suggests: It is important that the 
applicant describe how compliance will be attained, especially 
considering complex mining scenarios and requirements.
---------------------------------------------------------------------------

    \318\ 42 U.S.C. 7401 et seq.
    \319\ 33 U.S.C. 1251 et seq.
    \320\ 30 U.S.C. 1258(a)(9).
    \321\ Id.
---------------------------------------------------------------------------

Final Paragraph (m): Consistency With Land Use Plans and Surface Owner 
Plans
    One commenter urged us to not to adopt the requirements under 
paragraph (m) because a mine operator already must comply with any 
state and local land use plans and programs and these requirements are 
beyond the authority of the SMCRA agency. The commenter adds that 
neither the regulatory authority nor the mine operator can know what 
future plans a landowner may implement that may alter a formerly 
approved permit following termination of jurisdiction. As we explained 
in the preamble to the proposed rule,\322\ the requirements of this 
paragraph are now consistent with the requirements of section 508(a)(8) 
of SMCRA \323\ which requires that each reclamation plan submitted as 
part of permit application include a statement of the ``consideration 
which has been given to making the surface mining and reclamation 
operations consistent with surface owner plans, and applicable State 
and local land use plans and programs.'' Mine operators must consider 
making operations consistent with surface owner plans, in addition to 
considering post-mining land use. Contrary to the commenters' opinion 
that this requirement is beyond our authority, final paragraph (m) 
specifically mirrors the requirements of section 508(a)(8) of SMCRA; 
therefore, we are adopting paragraph (m) as proposed.
---------------------------------------------------------------------------

    \322\ 80 FR 44436, 44492 (Jul. 27, 2015).
    \323\ 30 U.S.C. 1258(a)(8).
---------------------------------------------------------------------------

Final Paragraph (n): Handling and Acid-Forming and Toxic-Forming 
Materials
    We have added final paragraph (n) to the final rule because we 
determined that it was more appropriate to place the permitting 
requirements about how a permittee must develop an acid-forming and 
toxic-forming handling plan in the performance standards of proposed 
Sec.   816.38. Specifically, we have moved proposed Sec.  816.38(a) 
through (d), which prescribe handling of acid-forming and toxic-forming 
materials, to final paragraph (n) because these handling requirements 
must be included in the reclamation plan.
    As discussed in the preamble,\324\ we proposed to modify section 
816.38 to implement more completely section 515(b)(14) of SMCRA,\325\ 
which requires that all acid-forming materials and toxic materials be 
``treated or buried and compacted or otherwise disposed of in a manner 
designed to prevent contamination of ground or surface waters.'' Our 
revisions to proposed Sec.  816.38, now paragraph (n) of Sec.  780.12, 
are also consistent with section 515(b)(10)(A) of SMCRA,\326\ which 
requires the permittee to ``minimize the disturbances to the prevailing 
hydrologic balance . . . by avoiding acid or toxic mine drainage. . . 
.'' In proposed Sec.  816.38(a), now Sec.  780.12(n)(1), we discuss how 
handling of acid-forming or toxic-forming materials identified during 
collection of baseline information under final Sec.  780.19(e)(3) will 
be prescribed in the reclamation plan. In particular, paragraph (n)(1) 
pertains to handling acid-forming and toxic-forming materials when they 
are identified in the overburden above the lowest coal seam mined. One 
commenter suggested that we should allow the practice of blending acid-
forming materials with spoil that exhibits sufficient alkalinity to 
prevent acid drainage. Because of the neutralization effects of this 
practice, we agree with the commenter and have added text to paragraph 
(n)(1)(ii)(A) that expressly allows this practice. Several commenters 
asserted that we should limit the scope of proposed Sec.  816.38(c), 
now final Sec.  780.12(n)(1)(ii), to areas where surface water and 
groundwater problems could occur. We made no revisions in response to 
this comment. Adverse impacts to surface water or groundwater may occur 
anywhere acid-forming or toxic-forming materials are present. Thus, 
final paragraph (n)(1)(ii) properly applies whenever acid-forming

[[Page 93150]]

or toxic-forming materials are present; therefore, no revisions are 
necessary or appropriate. The same commenters also asserted that 
proposed Sec.  816.38(c), now Sec.  780.12(n)(1)(ii), was overly 
restrictive and should allow techniques other than those set forth in 
the proposed rule. We disagree with the characterization that final 
paragraph (n)(1)(ii) is overly restrictive; this provision allows the 
operator to either demonstrate that acid or toxic drainage will not be 
generated or choose from proven methods of handling acid-forming and 
toxic-forming materials to prevent material damage to the hydrologic 
balance outside the permit area. The commenters suggested, for example, 
that it may be possible to effectively prevent pollution resulting from 
acid-forming or toxic-forming materials by placing the materials in a 
position that is ``high and dry.'' We agree that, in common with other 
placement methods, placing acid-forming or toxic-forming materials 
permanently above the groundwater table can be effective. Final 
paragraph (n)(1)(ii), describes several methods of addressing acid-
forming or toxic-forming materials, including treatment with 
neutralizing materials and placement of the materials so that they will 
remain permanently above, or below, the groundwater table. However, we 
must point out that paragraph (n)(1)(ii)(B) only allows placement of 
acid-forming or toxic-forming materials below the water table, without 
surrounding them with compacted low permeability material, if you can 
demonstrate and the regulatory authority finds in writing that complete 
saturation will prevent the formation of acid or toxic mine drainage. 
If you, the permittee cannot make this demonstration, you must either 
treat the acid-forming or toxic-forming material in accordance with 
paragraph (n)(1)(ii)(A) or completely surround the acid-forming or 
toxic-forming materials with compacted low permeability material in 
accordance with paragraph (n)(1)(ii)(C). If you surround the material 
with compacted low permeability material, you may place the material 
either permanently below the groundwater table in accordance with 
paragraph (n)(1)(ii)(C)(1), or permanently above the groundwater table 
in accordance with paragraph (n)(1)(ii)(C)(2). Surrounding the material 
with compacted low permeability material is necessary regardless of 
placement location because spoil is known to be highly variable in 
terms of hydraulic conductivity. Therefore, unless these materials are 
surrounded by compacted low permeability material, acid-forming or 
toxic-forming elements or compounds may be leached from the materials 
by infiltrating precipitation (above the groundwater table) or by 
flowing groundwater (below the groundwater table). As one commenter 
noted, these requirements are consistent with the holding in Rith 
Energy, Inc. v. OSM, 111 IBLA 239 (IBLA 1989) that requires that acid-
forming and toxic-forming materials be handled in a manner that will 
avoid the creation of acid or toxic mine drainage so as to minimize 
disturbance to the prevailing hydrologic balance.
---------------------------------------------------------------------------

    \324\ 80 FR 44436, 44547-44548 (Jul. 27, 2015).
    \325\ 30 U.S.C. 1265(b)(14).
    \326\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    In Sec.  816.38(d), now Sec.  780.12(n)(2), we have provided for 
placement of acid-forming or toxic-forming materials in an excess spoil 
fill or coal mine waste refuse pile using the methods outlined in 
paragraph (1) to prevent contamination of ground or surface waters. 
Although we did not receive comments on proposed paragraph (d), we made 
nonsubstantive changes to the paragraph to conform to plain language 
principles and to accommodate moving the text to Sec.  780.12.
    In Sec.  816.38(a), now Sec.  780.12(n)(3), we address the measures 
that you must specify in your reclamation plan to prevent adverse 
hydrologic effects resulting from acid-forming or toxic-forming 
materials being exposed during mining, if they are present in the 
stratum immediately below the lowest coal seam being mined. Several 
commenters, including regulatory authorities and operators, recommended 
deleting this paragraph, arguing that it erroneously presupposes that 
all coal seams and the pit floor contain acid-forming and toxic-forming 
materials. In addition, the commenters opined that requiring an 
impervious layer below the coal seam could potentially cause more 
problems than it solves by reducing recharge to aquifers below the coal 
seam and by sealing unmined coal faces, thus impeding potential 
groundwater recharge to the backfill. The commenters were particularly 
concerned with the proposed requirement to cover exposed coal seams and 
the stratum immediately beneath the lowest coal seam mined with a layer 
of compacted material with a hydraulic conductivity at least two orders 
of magnitude lower than the hydraulic conductivity of the overlying, 
less-compacted spoil. The commenters asserted that this requirement is 
unnecessary and will result in additional cost with little benefit to 
water quality by imposing increased inspection frequency. Commenters 
also opined that this would require operators to work adjacent to the 
highwall for longer periods, presenting numerous safety issues. We 
disagree with the commenters. This rule requires the development of a 
plan to prevent any adverse hydrologic impacts that might result from 
exposure of the stratum beneath the coal seam that was exposed during 
the mining process. The requirement to develop a plan will apply only 
when the baseline geologic information collected under section Sec.  
780.19(e) indicates that the stratum immediately below the lowest coal 
seam to be mined contains acid-forming or toxic-forming materials. 
Final Sec.  773.15(n) prohibits the regulatory authority from approving 
the permit application unless the applicant demonstrates, and the 
regulatory authority concurs, that the operation has been designed to 
prevent the formation of toxic mine drainage or other discharges that 
would require long-term treatment after mining has been completed. 
Therefore, the plan must be adequate to satisfy this requirement. One 
option the permittee may employ is placing a compacted low permeability 
layer over the in-place stratum immediately beneath the coal seam using 
the same safety measures that allowed removal of the coal.

Section 780.13: What additional maps and plans must I include in the 
reclamation plan?

    Section 780.13 explains the additional maps, plans, and cross 
sections that the applicant must include in the reclamation plan. We 
have adopted the section as proposed with the exception of one 
additional requirement, a few non-substantive changes, and renumbering 
of paragraphs.
    A few commenters expressed concern about the proposed requirement 
in Sec.  780.13(a)(9) to map each feature and facility that is 
constructed to protect or enhance fish, wildlife, and related 
environmental values. Commenters stated that this is time consuming and 
that these features are likely to change over the course of mining 
operations; therefore, the commenters advocated the elimination of 
these requirements. We disagree. This requirement provides valuable 
information that will allow the regulatory authority to assess, 
monitor, and review the evolving operation. While this requirement may 
result in more time and effort at the initial permitting stage, it 
should save time and effort in subsequent permit reviews. Furthermore, 
it is important to accurately document efforts to protect or enhance 
fish, wildlife, and related environmental values.
    As discussed within the preamble to Sec.  816.57(d), we have added 
to our performance standards a requirement to

[[Page 93151]]

establish 100-foot wide vegetative corridors along certain perennial 
and intermittent streams. In order to ensure consistency between the 
permit requirements and the performance standards, we have also added a 
new paragraph (a)(14) to Sec.  780.13, which requires the applicant to 
provide data about each streamside vegetative corridor that it proposes 
to establish. Documenting the proposed location of vegetative corridors 
will aid the applicant in planning and allows the regulatory authority 
to assess the proposed location of the vegetative corridors to ensure 
they can be established consistent with the requirements of Sec.  
816.57(d).
    The U.S. Forest Service supported adoption of proposed paragraph 
(a)(15) and we received no comments opposing it. For clarity, however, 
we have divided the requirements of this paragraph into two separate 
paragraphs, numbered (a)(16) and (a)(17) because of the addition of new 
paragraph (a)(14) to the final rule. Final paragraph (a)(16) requires 
the applicant to provide the ``location and geographic coordinates of 
each monitoring point for groundwater and surface water.'' Final 
paragraph (a)(17) requires the applicant to provide ``the location and 
geographic coordinates of each point at which you propose to monitor 
the biological condition of perennial and intermittent streams.''
    Proposed paragraph (c) clarified that the regulatory authority may 
require an applicant to submit the materials required under this 
section in digital format. The U.S. Forest Service and others expressed 
general support for submitting data in digital format. Other commenters 
recommended that this paragraph be revised to encourage, but not 
require, the digital format option for all materials submitted for 
review and analysis by the public and the regulatory authority. These 
commenters expressed concern that requiring materials to be submitted 
in a digital format would be financially burdensome and that some 
operators or state regulatory authorities might not possess the 
technical ability to provide the information in a digital format. We do 
not agree. Proposed paragraph (c) did not require the submission of 
materials in a digital format but merely clarified that the regulatory 
authority can require digital submissions if it so chooses. Requiring 
permit materials to be submitted in digital format could actually save 
regulatory authorities a significant amount of time that might 
otherwise be spent digitizing materials submitted by applicants so that 
they will be accessible to the public and to us. Furthermore, 
submission of digital data is increasingly common and does not require 
highly specialized technology or equipment. Consequently, we have made 
no substantive change to the final rule.

Section 780.14: What requirements apply to the use of existing 
structures?

    Most changes to Sec.  780.14 are editorial in nature. They 
primarily implement plain language principles and improve syntax and 
structure. In addition, we revised paragraph (b)(2) to eliminate the 
requirement for specifying the interim steps in the schedule for 
reconstruction of each existing structure because such a requirement 
would have no utility to the regulatory authority. What matters from a 
regulatory perspective is the starting and ending dates of the 
reconstruction, which revised paragraph (b)(2) continues to require. We 
also revised paragraph (b)(2) to apply the schedule requirement to both 
modification and reconstruction of existing structures, not just to 
reconstruction of those structures. The change makes paragraph (b)(2) 
consistent with the language of paragraph (b)(1). It also avoids the 
need for the applicant and regulatory authority to distinguish between 
modification and reconstruction. That distinction serves no regulatory 
purpose because any existing structure must be brought into compliance 
with applicable regulatory requirements. It makes no difference whether 
the effort to achieve compliance is called modification or 
reconstruction.

Section 780.15: What plans for the use of explosives must I include in 
my application?

    One commenter recommended that we revise the blasting regulations 
in relation to the impact of the use of explosives on birds. This 
recommendation is outside the scope of our current rulemaking because 
the proposed rule included no substantive revisions to the blasting 
regulations.

Section 780.16: What must I include in the fish and wildlife protection 
and enhancement plan?

    Section 780.16 is intended to ensure that a proposed surface coal 
mining and reclamation operation is designed in a manner that meets the 
fish and wildlife protection and enhancement requirements of the 
regulatory program. Except as discussed below, we have adopted Sec.  
780.16 as proposed, with minor editorial revisions for clarity and 
consistency.
Final Paragraph (b): Protection of Threatened and Endangered Species 
and Species Proposed for Listing as Threatened or Endangered
    Proposed paragraph (b) required the permittee to describe how the 
permit would comply with the Endangered Species Act, 16 U.S.C. 1531 et 
seq., including any species-specific protection and enhancement plans 
developed in accordance with that law. In response to comments from 
federal agencies, we have added a new paragraph (b)(1) stating that 
final paragraphs (b)(2) and (b)(3) apply when the proposed operation 
may affect species listed or proposed for listing as threatened or 
endangered under the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq., or designated or proposed critical habitat under that law.
    Another commenter requested that we add ``proposed species'' to 
this section. We made the recommended revisions because, as discussed 
in greater detail in the preamble text for section 773.15(j) above, 
both SMCRA and the Endangered Species Act provide authority to protect 
species that have been proposed for listing.\327\ Section 7(a)(4) of 
the Endangered Species Act \328\ requires that Federal agencies confer 
with the U.S. Fish and Wildlife Service on any agency action that is 
likely to jeopardize the continued existence of any species proposed to 
be listed as threatened or endangered. SMCRA sections 515(b)(24) and 
516(b)(11) \329\ require that, at a minimum, mining operations must 
``to the extent possible using the best technology currently available, 
minimize disturbances and adverse impacts of the operation on fish, 
wildlife, and related environmental values, and achieve enhancement of 
such resources where practicable.'' The requirement to minimize impacts 
to ``fish, wildlife, and related environmental values'' is not in any 
way limited to Endangered Species Act-listed species.
---------------------------------------------------------------------------

    \327\ 80 FR 44436, 44565 (Jul. 27, 2015).
    \328\ 16 U.S.C. 1536(a)(4).
    \329\ 30 U.S.C. 1265(b)(24), 1266(b)(11).
---------------------------------------------------------------------------

    Several commenters expressed support for proposed Sec.   780.16(b) 
to the extent that it requires compliance with the Endangered Species 
Act \330\ and incorporation of any species-specific protection and 
enhancement measures into the permit, including those provided for 
under applicable biological opinions for the mining operations at 
issue. However, commenters also noted that ``species-specific 
protection and enhancement measures'' are not developed in accordance 
with the

[[Page 93152]]

Endangered Species Act, as our proposed regulation indicated. They 
noted that a more appropriate Endangered Species Act tool might be a 
habitat conservation plan under Section 10 of the Endangered Species 
Act and suggested we replace ``protection and enhancement plan'' with 
``habitat conservation plan'' as an example of a relevant plan 
developed in accordance with the Endangered Species Act. We agree and 
have changed the text of paragraph (b)(2) accordingly. However, 
species-specific protection and enhancement measures, where developed, 
should also be followed wherever possible.
---------------------------------------------------------------------------

    \330\ 16 U.S.C. 1531 et seq.
---------------------------------------------------------------------------

    Several commenters also requested that we require an applicant to 
demonstrate that it has complied with all applicable species-specific 
protection and enhancement measures. However, compliance with 
applicable species-specific protection and enhancement measures, while 
important, does not necessarily ensure compliance with the Endangered 
Species Act. For example, we, along with the U.S. Fish and Wildlife 
Service, and a representative group of state regulatory authorities 
have only developed species-specific protection and enhancement 
measures for a limited number of species. While this type of guidance 
can reduce uncertainty and streamline the permitting process, it is not 
possible to develop range-wide, species-specific protection and 
enhancement measures for every Endangered Species Act-listed species 
affected by coal mining operations. Further, the fact that guidance has 
not been produced for a particular species does not excuse an applicant 
from developing protection and enhancement measures specific to that 
species for inclusion in a permit application. Where species-specific 
protective measures have not been developed, an applicant will have to 
coordinate with the appropriate office of the U.S. Fish and Wildlife 
Service or National Marine Fisheries Service to ensure that adequate 
measures are incorporated into a permit. Where species-specific 
protective measures have been developed, such as the range-wide Indiana 
Bat protection and enhancement plan guidelines finalized in 2009,\331\ 
site-specific modifications to these guidelines are often necessary 
depending on the size, location, or other characteristics of the 
operation and/or permit area. Therefore, we have determined that it is 
more accurate to simply require that an application must demonstrate 
compliance with the Endangered Species Act because this requirement 
would encompass any necessary species-specific protection and 
enhancement measures developed in coordination with the appropriate 
U.S. Fish and Wildlife Service or National Marine Fisheries Service 
office. However, in evaluating this suggestion we have determined that 
proposed paragraph (e)(4), containing the requirement that an 
application must demonstrate compliance with the Endangered Species Act 
should be moved to paragraph (b). Therefore, we combined proposed 
paragraph (e)(3) with final paragraph (b)(1) and moved proposed 
paragraph (e)(4) to a new paragraph at (b)(2) in the final rule.
---------------------------------------------------------------------------

    \331\ OSMRE, Range-wide Indiana Bat Protection and Enhancement 
Plan Guidelines for Surface Coal-Mining Operations, Jul. 2009, 
available at: http://www.osmre.gov/lrg/docs/INBatPEPGuidelines.pdf 
(last accessed Nov. 1, 2016).
---------------------------------------------------------------------------

    Other commenters requested that we require applicants to 
demonstrate that the proposed permit would not adversely impact any 
species listed or proposed for listing under the Endangered Species 
Act. Additionally, one commenter suggested that there should be a 
strict prohibition on any activity within 100 feet of streams because 
of the potential to adversely impact aquatic species. We do not agree 
that additional prescriptive protective measures should be required in 
this section or that an applicant must demonstrate that a proposed 
mining operation will not adversely impact any listed species. In the 
final rule, we have revised our previous regulations to ensure that 
threatened and endangered species and species proposed for listing as 
threatened or endangered are correctly identified and described, as 
explained in Sec.  779.20; that the permit is designed to protect and 
enhance those species, as explained in Sec.  780.16; and that the 
regulatory authority makes a finding that the permit complies with the 
Endangered Species Act as explained in Sec.  773.15(j). The analysis of 
what protection and enhancement measures are required under paragraph 
(b) should be species and site-specific and should be done in close 
coordination with the appropriate state or federal agencies. These 
types of species and site-specific considerations do not lend 
themselves to prescriptive rules. The exact process of developing 
protection and enhancement plans will depend on how the applicant 
intends to demonstrate achievement of the finding required under final 
Sec.  773.15(j). Final Sec.  780.16(b) fits into this scheme by simply 
requiring that an applicant describe how it will comply with the 
Endangered Species Act. This description will vary depending on how the 
applicant intends to demonstrate compliance with the Endangered Species 
Act, site-specific considerations, and the number and type of listed or 
proposed species potentially impacted by the operation.
    Other commenters expressed concern over the requirement, now 
located in final paragraph (b)(2), that compliance with the Endangered 
Species Act must be demonstrated before the regulatory authority may 
approve a permit. Many commenters opined that it takes a long time to 
obtain approval of necessary protection and enhancement measures for 
proposed or listed species from the U.S. Fish and Wildlife Service or 
National Marine Fisheries Service and questioned whether it was 
possible to obtain a permit on the condition that no impact to listed 
species would occur until the coordination process was complete. We 
have evaluated this request and determined that, until the coordination 
process is complete, it would be very difficult to determine whether an 
operation will not impact species. However, where an operation can be 
reduced in size or divided into different phases to avoid proposed or 
listed species, there is no prohibition on pursuing a permit for that 
smaller area while simultaneously pursuing approval of a second, nearby 
permit where impacts to species may occur. This could allow an operator 
to begin mining on the permit that would have no impacts to species, 
assuming all other requirements were met, such as the requirement that 
phases of operations that are significantly related must be evaluated 
in a single impact statement pursuant to NEPA,\332\ while continuing 
the coordination process on the permit where impacts to species are 
possible.
---------------------------------------------------------------------------

    \332\ 40 CFR 1502.4(a).
---------------------------------------------------------------------------

Final Paragraph (c): Protection of Other Species
    One commenter recommended we remove from the final rule all 
language that the commenter characterized as ``subjective,'' such as 
``to the maximum extent practicable'' or to ``minimize disturbances and 
effects'' and instead provide specific examples of techniques and 
practices that would be expected to be implemented or followed. We have 
not revised the final rule in response to this comment. Similar 
language is found throughout SMCRA, and provides an appropriate level 
of flexibility for each regulatory authority to determine the 
applicability of techniques and practices on a case-by-case basis. It 
would be inappropriate to prescribe techniques and practices within the 
regulations

[[Page 93153]]

implementing SMCRA, as these may be site specific, and the best 
technology currently available and best practices are not static and 
evolve.
    In response to paragraph (c)(1) of the proposed rule, many 
commenters opposed the requirement to time mining operations as to 
avoid or minimize disruption of critical life cycle events for all fish 
and wildlife, such as migration, nesting, breeding, calving, and 
spawning. These commenters criticized the paragraph as either unclear, 
conflicting with other requirements, or overbroad and noted that, if 
implemented, it could halt all mining activity because these critical 
lifecycle events happen throughout the year. While it may, on a species 
by species basis, be necessary to time certain activities to avoid or 
minimize impacts on certain species, we generally agree with commenters 
that requiring it for all species would not be appropriate. Therefore, 
we have deleted this paragraph and renumbered the remaining paragraphs 
accordingly.
    Proposed paragraph (c)(2), now final paragraph (c)(1), requires a 
description of how the permittee will retain forest cover and other 
native vegetation as long as possible and time the removal of that 
vegetation to minimize adverse impacts on aquatic and terrestrial 
species. Some commenters alleged that this requirement is too difficult 
to comply with because timing the removal of forest cover and native 
vegetation for one species might conflict with the timing for another 
species. As an example, several commenters pointed out conflicts 
between cutting restrictions for endangered bats and the needs of other 
species. We do not agree with this concern. Paragraph (c) addresses the 
protection of non-listed species and related environmental values and 
requires applicants to minimize disturbances and adverse impacts on 
species ``to the extent possible using the best technology currently 
available.'' If it is not possible to time the removal of vegetation to 
minimize adverse impacts to a non-Endangered Species Act species 
because of other species considerations, such as the Endangered Species 
Act-listed Indiana Bat tree cutting guidelines, a description of why 
the vegetation must be cut at a specific time is sufficient to satisfy 
this requirement. We have not made any changes as a result of these 
comments as this paragraph provides sufficient flexibility to time the 
removal of forest cover and vegetation to best protect aquatic and 
terrestrial species, including endangered species.
    We received numerous comments, ranging from highly critical to very 
supportive, of the requirement in proposed paragraph (c)(3) that 
operations must maintain, to the extent possible, an intact forested 
stream buffer of at least 100 feet between surface disturbances and 
perennial and intermittent streams. We have deleted proposed paragraph 
(c)(3) because we have revised final Sec.  816.57(b) to include a 
prohibition on mining in or within 100 feet of a perennial or 
intermittent stream, subject to the exemptions contained in final Sec.  
780.28, making proposed paragraph (c)(3) of this section redundant. A 
discussion of all comments on the 100 foot stream buffer, including 
comments on proposed paragraph (c)(3), is available in the preamble 
discussion of Sec. Sec.  780.28 and 816.57.
    One commenter requested that we define or otherwise clarify the 
term ``environmental values'' as discussed in proposed paragraphs 
(c)(4), (5), and (d)(1) because the term is not currently defined 
within the proposed rule or previous regulations. We decline to define 
this term, because imposing a national definition for ``environmental 
values'' would be too restrictive and would not account for regional 
differences. The regulatory authority has the proper expertise to 
determine its meaning on a case-by-case basis.
    Proposed paragraph (c)(5) required the operator to periodically 
evaluate the impacts of the operation on fish, wildlife, and related 
environmental values in the permit and adjacent areas and to use of 
that information to modify the operations to avoid or minimize adverse 
effects. Several commenters expressed concern that we did not provide 
guidance on the appropriate frequency for these ``periodic 
evaluations'', on how rigorous the evaluation should be, and on who 
would be responsible for completing the evaluations. Some commenters 
recommended the removal of this paragraph because of concerns that 
operators might be required to change mining operations to offset 
impacts to wildlife beyond the control of the operators. We agree that 
the proposed rule language was ambiguous about how often the periodic 
review should be. In response, we are deleting this paragraph in the 
final rule and renumbering the remaining paragraphs. However, we have 
added a new requirement at final Sec.  774.10(a)(2) that requires the 
regulatory authority to review the impacts of the operation on fish, 
wildlife, and related environmental values in the permit and adjacent 
areas. This review must occur not later than the middle of each permit 
term except that permits with a term longer than five years must be 
reviewed no less frequently than the permit midterm or every five 
years, whichever is more frequent. The regulatory authority must use 
that evaluation to determine whether it is necessary to order the 
permittee to modify operations to avoid or minimize adverse impacts on 
those values. The regulatory authority has the discretion to determine 
the rigor of these periodic reviews, which is appropriate because they 
have the local expertise to determine whether the operation is having 
the anticipated impact on fish, wildlife and related environmental 
values and whether revisions are necessary. For example, if unexpected 
drought conditions cause protection and enhancement measures to be less 
effective than initially anticipated, the regulatory authority review 
of the fish and wildlife protection and enhancement plan should 
evaluate whether, and to what extent, revisions should be made to the 
permit to effectively implement section 515(b)(24) of SMCRA.\333\ The 
review under final Sec.  774.10(a)(2) is separate from any monitoring 
and evaluation requirements that may be required to ensure compliance 
with the Endangered Species Act.
---------------------------------------------------------------------------

    \333\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Some commenters stated that proposed paragraph (c)(6), which we 
adopted as final paragraph (c)(3) and which requires the selection of 
non-invasive native species for revegetation, could conflict with the 
need to use non-native species for site stabilization, such as on steep 
slopes, and in situations where erosion is a problem. As support, some 
commenters noted that the Natural Resources Conservation Service 
guidelines propose the use of non-natives to control erosion. We do not 
view these requirements as conflicting. The final rule does not 
prohibit the use of non-invasive, non-native vegetation when 
appropriate to control erosion and when approved in the revegetation 
plan. However, Sec.  780.16 focuses on the protection and enhancement 
of fish and wildlife resources, which typically benefit from the use of 
non-invasive, native species, whenever possible. In response to 
comments requesting the discretion to use non-native plant species in 
limited circumstances, we have modified this paragraph to allow for the 
limited use of non-native species. Specifically, we have included a 
reference to final Sec.  780.12(g)(4), which allows for use of non-
native species when they are necessary to achieve a quick-growing, 
temporary, stabilizing cover on disturbed and regraded areas, as long 
as the species selected to

[[Page 93154]]

achieve this purpose will not impede the establishment of permanent 
vegetation.
    Commenters questioned the benefits of using native vegetation in 
final paragraph (c)(3), alleging that non-native vegetation provides 
increased forage and habitat for turkey, deer, and elk. We do not 
agree. The best available science indicates that, on a broader 
ecological scale, planting native species contributes to the overall 
health of natural communities. Disturbances of intact ecosystems that 
open and fragment habitat, such as land clearing activities, increase 
the potential of invasion by alien species. Native plants provide 
important alternatives to alien species for conservation and 
restoration projects in these disturbed areas. Native species can 
satisfy many of the same land management needs that nonnative species 
do, but often with lower costs and maintenance requirements. Once 
established in an appropriate area, most native plant species are hardy 
and do not require watering, fertilizers, or pesticides.\334\ They 
generally require less watering and fertilizing than non-natives 
because they are adapted to local soils and climate conditions. They 
are less likely to need pesticides because they are often more 
resistant to insects and disease. Finally, local wildlife evolved along 
with local plants; therefore, wildlife readily uses native plant 
communities for food, cover and rearing young.
---------------------------------------------------------------------------

    \334\ Virginia Department of Conservation and Recreation. Native 
Plants for Conservation, Restoration, and Landscaping, (Sept. 2011). 
http://www.dcr.virginia.gov/natural-heritage//document/cp-nat-plants.pdf (last accessed Nov. 1, 2016).
---------------------------------------------------------------------------

    Commenters also recommended that the determination of the types of 
vegetation to be used should be left to the discretion of the 
regulatory authority and should be done on a case-by-case basis because 
regional and site-specific conditions vary. They also stated that 
landowner input should be considered when determining vegetative cover. 
In response to these concerns, we note that final Sec.  780.12(g)(4) 
gives the regulatory authority sufficient flexibility to allow the use 
of non-native species when necessary to achieve a quick-growing, 
temporary, stabilizing cover on disturbed and regraded areas, as long 
as the selected species will not impede the establishment of permanent 
vegetation. However, SMCRA clearly directs mining operations to 
establish ``permanent vegetative cover of the same seasonal variety 
native to the area of land to be affected,'' allowing non-native 
species to be used only ``where desirable and necessary to achieve the 
approved postmining land use plan.'' \335\ Therefore, because of the 
statutory importance of the use of native species, we have decided that 
it is not necessary or appropriate to expand the regulatory authority's 
discretion any further than the exemption in final Sec.  780.12(g)(4) 
and have not made any changes in response to these comments.
---------------------------------------------------------------------------

    \335\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    Proposed paragraph (c)(7) is renumbered in the final rule as 
paragraph (c)(4). In the final rule we require a permittee to describe 
the plan for avoiding wetlands, perennial and intermittent streams, and 
habitat adjacent to perennial or intermittent streams. If avoidance of 
perennial or intermittent streams is not possible, we outline the steps 
to minimize impacts that must be taken in final paragraphs 
(c)(4)(i)(A)-(C).
    In final paragraph (c)(4)(i), we have added ``wetlands'' to the 
list of important habitat features that must, if possible, be avoided 
during mining. This change is in response to comments from other 
federal agencies who expressed concern that wetlands were not 
specifically mentioned in this paragraph. Adding the term ``wetlands'' 
to relevant sections of final paragraph (c)(4) and its subparts will 
ensure that operations avoid mining through wetlands as well as 
perennial and intermittent streams, and habitat adjacent to perennial 
or intermittent streams, if possible.
    One commenter expressed concern that the requirement in proposed 
paragraph (c)(7)(ii), final paragraph (c)(4)(i)(B), to ``minimize the 
length of the stream mined through,'' is duplicative of the Clean Water 
Act section 404 \336\ permitting program and is impermissible under 
section 702 of SMCRA.\337\ We disagree. Final paragraph (c)(4) is 
designed to ensure that operations use ``the best technology currently 
available [to] minimize disturbances and adverse impacts'' \338\ on the 
fish and wildlife that depend on the wetlands, perennial and 
intermittent streams, and habitat adjacent to perennial or intermittent 
streams. Thus, compliance with this provision of SMCRA is a separate, 
independent obligation on operators from requirements of the Clean 
Water Act.
---------------------------------------------------------------------------

    \336\ 33 U.S.C. 1344.
    \337\ 30 U.S.C. 1292.
    \338\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    In response to a comment we received from a federal agency we have 
added paragraph (c)(4)(ii) which requires the permittee to identify the 
authorizations, certifications, and permits required by the Clean Water 
Act, 33 U.S.C. 1251 et seq., and the steps the permittee will take or 
has taken to procure those authorizations, certifications, and permits. 
Furthermore, we point out that issuance of a permit does not authorize 
a permittee to conduct any surface mining activity in or affecting 
waters subject to the Clean Water Act until the appropriate Clean Water 
Act authorization, certification, or permit is obtained. Information 
submitted and analyses conducted under subchapter G of this chapter may 
inform the agency responsible for authorizations, certifications, and 
permits under the Clean Water Act, but they are not a substitute for 
the reviews, authorizations, certifications, and permits required under 
the Clean Water Act.
Final Paragraph (d): Enhancement Measures
    Proposed paragraph (d) required that permit applicants describe how 
they would use the best technology currently available to enhance fish, 
wildlife, and related environmental values both within and outside the 
area to be disturbed by mining activities, where practicable. Section 
515(b)(24) of SMCRA \339\ requires that surface coal mining and 
reclamation operations ``to the extent possible using the best 
technology currently available, minimize disturbances and adverse 
impacts of the operation on fish, wildlife, and related environmental 
values, and achieve enhancement of such resources where practicable.'' 
Therefore, to be consistent with the statutory language, final Sec.  
780.16(d)(1)(i) adds the qualifying phrase ``to the extent possible'' 
to the proposed rule.
---------------------------------------------------------------------------

    \339\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (d)(1) also included a list of twelve potential 
enhancement measures. Many commenters were generally supportive of 
these potential enhancement measures and as discussed below, we are 
adopting that list in revised form as final paragraph (d)(2). Others 
were concerned that these potential enhancement measures were 
requirements, or could be construed by regulatory authorities as 
mandatory enhancement measures to be performed on each permitted 
operation. Commenters explained that mandating conservation easements 
and/or deed restrictions may conflict with State Trust Lands, state 
agency goals and objectives, and result in unlawful takings or overly 
burdensome requirements that private landowners or local government 
agencies would not be willing to accept. These concerns are

[[Page 93155]]

misplaced as these enhancement measures are only provided as a list of 
potential measures to be used, to the extent possible. In addition, the 
list provided is not exhaustive, as regulatory authorities have the 
discretion to approve other types of enhancement measures on a case-by-
case basis. Other commenters interpreted proposed paragraph (d)(1) as 
requiring implementation of all twelve potential enhancement measures 
or, for each enhancement measure not used, an explanation of why that 
particular enhancement measure was not practicable. That was not our 
intent. Therefore, we modified proposed paragraph (d)(1) by separating 
it into final paragraphs (d)(1)(i) and (d)(1)(ii). New language in 
final paragraph (d)(1)(i) clarifies that the list of proposed 
enhancement measures in final paragraph (d)(2) is not exhaustive and 
that regulatory authorities may approve other enhancement measures. New 
language in final paragraph (d)(1)(ii) clarifies that if an applicant 
does not include any enhancement measure, it must explain, to the 
satisfaction of the regulatory authority, why implementation of 
enhancement measures is not practicable. An applicant does not have to 
address the practicability of all twelve potential enhancement 
measures.
    Several commenters alleged that it would be difficult to know 
whether an enhancement measure is ``practicable'' and expressed concern 
that a regulatory authority could force an applicant to enact all 
enhancement measures. However, this standard was present in our 
previous regulations and commenters did not identify any situations in 
which a regulatory authority had abused its discretion with respect to 
whether an enhancement measure was practicable. Therefore, we have not 
defined ``practicable'' in response to these comments.
    Commenters opined that it is inappropriate to allow enhancement 
measures distinct from the area to be disturbed by mining activities, 
especially if enhancement measures would take place in a location 
physically unconnected to the mine site. Allowing the regulatory 
authority the flexibility to approve enhancement measures in locations 
away from the disturbance area is necessary to fully realize the 
mandate in section 515(b)(24) of SMCRA to achieve enhancement of fish, 
wildlife, and related environmental values where practicable.\340\ 
While it is typically preferable to conduct enhancement measures on or 
near the disturbed areas, allowing enhancement measures away from the 
disturbed area provides significant flexibility and may, at times, be 
the most beneficial and/or practicable option. Further, there is no 
requirement within SMCRA that permitted sites must only contain lands 
spatially connected to one another.
---------------------------------------------------------------------------

    \340\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Commenters expressed concern with a perceived ambiguity of the 
phrase ``natural succession'' in proposed paragraph (d)(1)(iv), which 
is now final paragraph (d)(2)(iv), as it relates to the establishment 
or description of a native plant community. Commenters alleged that the 
term ``natural succession'' is too broad in concept and needs a 
specific definition. The commenters requested clarification of the term 
``natural succession'' and an explanation of why use of the term is 
necessary. We disagree that natural succession is an ambiguous concept. 
Our final rule uses the term ``natural succession'' in the standard 
ecological context of that term, which means the predictable maturation 
of the native vegetative community over time. The references to natural 
succession are not a prescriptive mandate for one particular type of 
plant community. Instead, we use the term ``natural succession'' as an 
outcome-based requirement aimed at ensuring that the types of plant 
communities that are initially established allow for the predictable 
maturation of the site. When a site would typically mature to forest, 
it would be appropriate to establish native vegetation that will not 
impede that process.
    One commenter suggested we promote the establishment of pollinator-
friendly species as described within Presidential Memorandum ``Creating 
a Federal Strategy to Promote the Health of Honey Bees and Other 
Pollinators.'' \341\ This suggestion furthers the goals not only of the 
Presidential Memorandum but also of SMCRA section 515(b)(24) \342\ 
because it clearly promotes fish, wildlife, and related environmental 
values. Consequently, we have added the clause ``establishing native 
plant communities designed to restore or expand native pollinator 
populations and habitats'' to final paragraph (d)(2)(iv) in response to 
this comment.
---------------------------------------------------------------------------

    \341\ Presidential Memorandum of June 20, 2014, Creating a 
Federal Strategy to Promote the Health of Honey Bees and Other 
Pollinators, 79 FR 35903 (June 24, 2014).
    \342\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Some commenters also recommended we revise Sec.  780.16(d)(2)(iv) 
and (v) as we have in the proposed rule at Sec.  780.16(c)(6), which is 
now final Sec.  780.16(c)(4), to allow non-native species to be used. 
We disagree. Because these paragraphs describe a choice of 
discretionary enhancement measures, they are appropriately more limited 
in scope than the requirements of final Sec.  780.16(c)(4). While the 
use of non-native species may, at times, be necessary, it should not be 
considered an enhancement measure.
    Another commenter sought clarification about how native forest and 
other native vegetation will be reestablished ``both within and outside 
of the permit area'' as stated in proposed paragraph (d)(1)(iv), which 
is now final paragraph (d)(2)(iv). The commenter asserted that this 
paragraph needed to be revised and limited to ``areas within the permit 
area'' that have been or will be disturbed by mining activities. We do 
not agree. This section provides optional measures to maximize 
opportunities to enhance restoration of native vegetation and natural 
wildlife habitat. Enhancement opportunities may arise within the permit 
boundary. However, where disturbance from mining may remove a 
significant portion of native forest or other native vegetation, it may 
be possible to look some distance outside of the disturbance area for 
opportunities to reestablish native vegetative cover during mining. The 
resulting benefits to species could be realized while mining was 
ongoing, thus offsetting some of the adverse impact on species caused 
by mining.
    This particular commenter also asserted that mining companies 
cannot operate outside approved permit areas; thus, according to the 
commenter, any regulation that requires lands not disturbed by mining 
activities to be affected would be contrary to SMCRA's requirement to 
minimize disturbances. We do not agree. Some of these measures could be 
implemented off-permit without adding land to the permit area if the 
enhancement activity would involve de minimis disturbance, as described 
in proposed Sec.  780.16(d)(3) and in final Sec.  780.16(d)(4). If 
reestablishment of native vegetation would involve more than a de 
minimis disturbance, or if excluding lands from a permit area would 
restrict the regulatory authority's ability to inspect and confirm 
completion of a permit term, then these lands could be made part of the 
permit area in order to implement the planned enhancement.
    Commenters stated that the enhancement measure at proposed 
paragraph (d)(1)(v), which is now final paragraph (d)(2)(v), involving 
the establishment of vegetative corridors at least 100 feet wide along 
each bank of

[[Page 93156]]

streams that lacked such buffers before mining, could be interpreted by 
a regulatory authority as requiring an artificial water source, 
especially in semi-arid states. Further, the commenters stated that the 
cost of providing these artificial water sources was not analyzed in 
the DEIS and that we did not evaluate legal considerations related to 
water rights in western regions. The commenters concern is misplaced. 
Nothing in this paragraph requires establishment of vegetation that 
would need an artificial water source. Use of vegetation that requires 
an artificial water source would be inconsistent with the purpose of 
the fish and wildlife enhancement measures in this rule, which is to 
encourage restoration or establishment of natural conditions using 
native species.
    Commenters voiced concern that proposed Sec.  780.16(d)(1)(v), 
which is now final Sec.  780.16(d)(2)(v), was too inflexible in 
requiring that, if an enhancement measure involved creating a 
vegetative corridor for a stream that previously lacked such a buffer, 
the buffer zone had to be at least 100 feet wide. We agree with this 
concern and have modified this paragraph to provide additional 
flexibility. The regulation now states a preference, but not a 
requirement, for a minimum 100-foot corridor for such enhancement 
measures. For clarity, we have also revised this requirement to 
describe the enhancement as the creation of a corridor where there is 
no such corridor before mining but where a vegetative corridor 
typically would exist under natural conditions.
    Another commenter was concerned that in the event extra material is 
needed to restore the 100-foot riparian zone and is stacked at the edge 
of the vegetative corridor, it could disrupt the mine operator's 
ability to restore the permit to approximate original contour or 
cropland use. The commenter did not provide an explanation as to why it 
may be necessary to stack extra material to create a vegetative 
corridor. However, regardless of the size of the hypothetical stack we 
do not anticipate this as an impediment to achieving approximate 
original contour. In the commenter's scenario the stacking would be 
temporary. Ultimately, the reclamation plan would require the material 
to be placed to achieve approximate original contour, establish the 
vegetative corridor consistent with this final rule, and the approved 
postmining land use. Accordingly, we have not modified the proposed 
rule in response to this comment.
    Proposed paragraph (d)(1)(vii), which is now final paragraph 
(d)(2)(vii), was modified to specify that permanently fencing off 
perennial and intermittent streams, as well as wetlands, from livestock 
was also an appropriate enhancement measure. This change was made to 
address federal agency concerns about inclusion of wetlands (as 
discussed above) and to retain consistency with other parts of the 
final rule about promoting the protection of wetlands.
    Final paragraph (d)(3), which we proposed as paragraph (d)(2), 
makes the use of enhancement measures mandatory where a proposed 
surface mining activity would result in the temporary or permanent loss 
of mature native forest or other native plant communities that cannot 
be restored fully before final bond release under Sec. Sec.  800.40 
through 800.43 of this chapter or permanent loss of a segment of a 
perennial or intermittent stream. Final paragraph (d)(3)(ii), which we 
proposed as paragraph (d)(2)(ii), requires that the enhancement 
measures be commensurate with the magnitude of the long-term adverse 
impacts of the proposed operation and, ideally, be permanent.
    In the preamble discussion of proposed Sec.  780.16(d)(2), which is 
now final paragraph (d)(3), we explained that ``long-term'' means that 
the permittee would not be able to correct the resource loss before 
expiration of the period of extended revegetation responsibility as 
prescribed in proposed Sec.  816.115 and identified two examples of 
long-term loss: the removal of significant native forest cover and the 
burial of a perennial or intermittent stream segment by an excess spoil 
fill or coal mine waste disposal facility. We invited comment on 
whether there are other interpretations of ``long-term'' that we should 
consider. We received two comments in support of the proposed rule's 
preamble description of ``long-term'' and were offered no alternate 
definitions. We did, however, receive many comments requesting that we 
further clarify ``long-term'' within this section. In response to these 
comments we have revised this paragraph to clarify that ``long-term'' 
adverse impacts are either the permanent loss of wetlands, or segments 
of perennial or intermittent streams, or the temporary or permanent 
loss of mature native plant or forest communities that cannot be 
restored before bond release.
    In the preamble discussion of proposed Sec.  780.16(d)(2), which is 
now final Sec.  780.16(d)(3), we also invited comment on whether the 
regulatory authority may consider mitigation measures approved under 
the authority of the Clean Water Act as satisfying the separate SMCRA 
requirement for mandatory enhancement measures. We received comments in 
support of allowing Clean Water Act mitigation to satisfy the 
requirement for fish and wildlife enhancement measures under this 
paragraph. Mitigation required under the Clean Water Act may satisfy 
the fish and wildlife enhancement requirement under the final rule to 
the extent that mitigation under the Clean Water Act requires actual 
on-site enhancement activities. Payments into a general fund, as 
opposed to payments or activities directed to improvement or 
preservation of a specific stream or site, would not be acceptable 
because the general fund may be used to finance enhancement projects 
outside the coalfields and because it would not be possible to 
determine whether the payment into a general mitigation fund would be 
commensurate with the magnitude of long-term adverse impacts as 
required under final paragraph (d)(3)(ii).
    We received comments from federal agencies that wetlands should be 
included in proposed paragraph (d)(2)(i), which is now final paragraph 
(d)(3)(i)(B). We agree with this comment and have added wetlands to 
this paragraph.
    We also invited comment on proposed Sec.  780.16(d)(2)(ii), which 
is now final paragraph (d)(3)(ii), about whether our regulations should 
define ``commensurate'' in the context of ``long-term'' and, if so, how 
we should define that term. We received two comments in support of 
defining ``commensurate,'' but neither provided an example of a 
definition of that term. In light of the small number of affirmative 
responses and the fact that neither commenter provided any suggested 
definition, we do not believe that a definition is warranted. Instead, 
we have determined that the regulatory authority should have the 
flexibility to determine if the enhancement measures are commensurate 
to the magnitude of long-term adverse impacts of the proposed 
operation. Therefore, we are not adding a definition of 
``commensurate.''
    Final paragraph (d)(3)(iii)(A) provides that enhancement measures 
to address a proposed operation with long term effects must be 
implemented within the same watershed if possible. Otherwise, 
enhancement measures must be implemented in the closest watershed 
available as long as it is approved by the regulatory authority. Some 
commenters requested that we require the term ``watershed'' to be 
applied in accordance with the Hydrologic Unit Code to provide 
boundaries for the

[[Page 93157]]

enhancement measures. We disagree. The regulatory authority is in the 
best position to determine the scope and location of the enhancement 
measures. The regulatory authority may factor in the size of the 
watershed, which requires a case-by-case, region-by-region analysis and 
cooperation between the operators and the regulatory authority. In any 
case, the regulatory authority should have flexibility on these issues.
    A few commenters also requested that we identify the approach to be 
used in identifying suitable surrogate enhancements in adjacent 
watersheds and specify the criteria for determining the equivalent size 
and cost of enhancement. Commenters also requested that we provide a 
mitigation hierarchy similar to the 2008 Compensatory Mitigation for 
Losses of Aquatic Resources.\343\ We decline to make these changes. 
Because this information is best assessed on a case-by-case basis, the 
regulatory authorities should have the discretion to make these 
determinations.
---------------------------------------------------------------------------

    \343\ 73 FR 19594 (Jun. 9, 2008).
---------------------------------------------------------------------------

    One commenter requested we add language to proposed Sec.  
780.16(d)(2)(iii)(A), which is now final Sec.  780.16(d)(3)(iii)(A), to 
specify that, on federal lands, proposed enhancement measures would 
have to comply with the Federal Land Policy and Management Act,\344\ 
and be consistent with that federal land management agency's land use 
plan. We disagree. The suggested rule change is not necessary because, 
for federal lands, any areas upon which fish and wildlife enhancement 
measures are conducted will be part of the permit area and all proposed 
measures will be reviewed and processed as part of the SMCRA permit 
application and Mineral Leasing Act mining plan, as described in Parts 
740 through 746 of our regulations. Nothing in this or any other rule 
grants the permittee authority to take any action on federal lands that 
is inconsistent with any land management agency's land use plan or 
federal law.
---------------------------------------------------------------------------

    \344\ 43 U.S.C. 1701 et seq.
---------------------------------------------------------------------------

    Proposed paragraph (d)(2)(iv) provided that the regulatory 
authority must include a condition in the approved permit that requires 
the completion of the enhancement measures for operations with 
anticipated long-term adverse impacts. We received a comment that this 
language seemed circular because we were essentially requiring 
insertion of a permit condition requiring the applicant to comply with 
conditions of the permit. Upon consideration of this comment, we agree 
and have deleted the paragraph.
    Some commenters advocated removing proposed paragraph (d)(3), which 
is now final paragraph (d)(4), as inconsistent with SMCRA. 
Specifically, these commenters alleged that achievement of the 
enhancement requirements described in paragraph (d)(2) would always 
involve more than a de minimis disturbance of the surface land outside 
the area to be mined, and therefore would need to be placed within the 
permit. We do not agree that all enhancement measures would be 
considered more than a de minimis disturbance. In the final paragraph 
(d)(2), which we proposed as paragraph (d)(1), there are examples of 
enhancement measures that do not rise to the level of de minimis 
disturbance, such as establishing conservation easements or nest boxes 
for birds. Therefore, we have adopted final paragraph (d)(4) because it 
is important to allow small enhancement measures without the added 
burden of including those areas within the permit boundary.
    Another concern voiced by commenters is that if there is more than 
a de minimis disturbance to the lands associated with these enhancement 
measures, the revegetation standards within the permit must be met on 
these lands associated with the enhancement measures. We agree that if 
there is more than a de minimis disturbance to the land, for any 
reason, the area would have to be permitted under SMCRA and 
revegetation standards would have to be met. However, we did not revise 
the rule in response to this concern because there are numerous 
enhancement measures that can be completed that would not require 
adding additional land to the permit area, such as creating rock piles 
of value to raptors and other wildlife for nesting and shelter.
    Commenters also were concerned that the term ``de minimis 
disturbance'' is subjective and open to interpretation, and some 
commenters requested a definition of the term. We decline to define the 
term. Regulatory authorities are in the best position to determine what 
constitutes ``de minimis disturbance'' in each circumstance; therefore, 
a definition in these regulations is not necessary.
    Some of the same commenters further alleged that the enhancement 
measures and the terms describing the enhancement measures as 
prescribed by proposed Sec.  780.16(d)(3), now Sec.  780.16(d)(2), were 
inconsistent with other requirements in the proposed rule. 
Specifically, the commenters expressed concern that the terms 
``proposed operation'' and ``area to be mined'', are not defined in our 
previous regulations or the proposed rule. We are not making any 
changes in response to these comments. The commenters did not identify 
the alleged inconsistencies and the two terms, ``proposed operation'' 
and ``area to be mined'' are used throughout SMCRA, our previous and 
existing regulations, and are generally accepted terms in the mining 
industry.
    Similarly, several commenters stated that the enhancement option 
allowing the reclamation of ``previously mined areas located outside 
the area that you propose to disturb'' creates confusion as to whether 
activities related to the enhancement measures outside the mining area 
are considered a mining activity. Other commenters also expressed 
concern about a perceived inconsistency within proposed Sec.  
780.16(d)(2)(xi) and asked the following question: ``[i]s [the area] 
`outside the area you propose to disturb' to be included within the 
proposed permit area?'' We agree that this was confusing. Therefore, we 
have revised final Sec.  780.16(d)(2)(xi) to prescribe, ``[r]eclaiming 
previously mined areas located outside the area that you propose to 
disturb for coal extraction.'' This revision more clearly reflects that 
this area is within the permit area and related to mining activity, but 
is not an area of the permit that is proposed to be disturbed by coal 
extraction.
Final Paragraph (e): Fish and Wildlife Service and National Marine 
Fisheries Service Review
    Proposed Sec. Sec.  779.20(d) and 780.16(e) contained substantively 
identical provisions regarding U.S. Fish and Wildlife Service review of 
the fish and wildlife resource information and the fish and wildlife 
protection and enhancement plan, respectively. The final rule 
consolidates proposed Sec. Sec.  779.20(d) and 780.16(e) into final 
Sec.  780.16(e), both to streamline the regulations and in response to 
a comment noting that the Service reviews baseline fish and wildlife 
resource information together with the fish and wildlife protection and 
enhancement plan, not separately.
    We have modified paragraph (e) and other provisions of the final 
rule to reference the National Marine Fisheries Service because that 
agency, along with the U.S. Fish and Wildlife Service, shares 
responsibility for administration of the Endangered Species Act. This 
modification is necessary for accuracy and to clarify that, where 
applicable, such as in situations where anadromous fish or most species 
within a marine environment would be impacted, the regulatory authority 
must provide the

[[Page 93158]]

resource information, as explained within this section, to the National 
Marine Fisheries Service.
    Final paragraph (e)(1)(i) requires the regulatory authority to 
provide both the protection and enhancement plan developed under this 
section and the resource information required under final Sec.  779.20 
to the appropriate regional or field office of the U.S. Fish and 
Wildlife Service or to the National Marine Fisheries Service, as 
applicable, when that information includes species listed as threatened 
or endangered under the Endangered Species Act, critical habitat 
designated under that law, or species proposed for listing as 
threatened or endangered under that law. The regulatory authority must 
provide both the resource information and the protection and 
enhancement plan to the appropriate Service(s) no later than the time 
that it provides written notice of the permit application to 
governmental agencies under existing Sec.  773.6(a)(3)(ii).
    Several commenters supported this provision because it would ensure 
better coordination and sharing of information among the applicant, the 
regulatory authority, and the applicable Service early in the 
permitting process. Other commenters, however, were confused by these 
transmittal requirements, at least as they stood in the proposed rule 
where we had placed them in two separate sections. Proposed Sec.  
779.20(d)(1)(i) contained the requirement to transmit resource 
information to the Service(s) at the time the application is filed with 
the regulatory authority, while proposed Sec.  780.16(e)(1)(i) 
contained the requirement to transmit the protection and enhancement 
plan. The commenters criticized us for creating redundant requirements, 
asserting that the U.S. Fish and Wildlife Service review of baseline 
wildlife information in the permit application was an unnecessary step 
because Sec.  780.16 already allowed the agency to review this 
information in connection with the fish and wildlife enhancement plan. 
In response to these comments, we consolidated the two provisions in 
final Sec.  780.16(e)(1)(i).
    Final paragraph (e)(1)(ii) is similar to our previous regulations, 
which allowed the U.S. Fish and Wildlife Service to request fish and 
wildlife resource information and the fish and wildlife protection and 
enhancement plan submitted as part of a permit application when the 
information in those applications does not include species listed as 
threatened or endangered under the Endangered Species Act, critical 
habitat designated under that law, or species proposed for listing as 
threatened or endangered under that law. Under both the previous 
regulations and the final rule, the regulatory authority must provide 
that information to the U.S. Fish and Wildlife Service within ten days 
of receipt of the request.
    Proposed Sec. Sec.  779.20(d)(2)(ii) through (iv) and 
780.16(e)(2)(ii) through (iv) prescribed how the regulatory authority 
must handle comments received from the U.S. Fish and Wildlife Service 
and how any disagreements must be resolved. These provisions mirrored 
the 1996 Biological Opinion \345\ dispute resolution process. We 
received many comments, both in support of and opposed to these 
requirements. After considering these comments, we decided not to adopt 
proposed Sec. Sec.  779.20(d)(2)(ii) through (iv) and 780.16(e)(2)(ii) 
through (iv). Instead, final Sec.  773.15(j) provides applicants and 
regulatory authorities with several pathways for demonstrating 
compliance with the Endangered Species Act.
---------------------------------------------------------------------------

    \345\ 1996 Biological Opinion and Conference Report (1996 
Biological Opinion), Consultation Conducted by the U.S. Dep't. of 
the Interior, U.S. Fish and Wildlife Serv. regarding Endangered 
Species Act--Section 7 Consultation. Effective September 24, 1996.
---------------------------------------------------------------------------

Previous Sec.  780.18: Reclamation Plan: General Requirements
    We have removed and reserved previous Sec.  780.18. As discussed in 
the preamble to the proposed rule we have revised many aspects of 
previous Sec.  780.18 and moved it to final rule Sec.  780.12.\346\
---------------------------------------------------------------------------

    \346\ 80 FR 44436, 44487-44493 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 780.19: What baseline information on hydrology, geology, and 
aquatic biology must I provide?
    This section establishes the baseline information on hydrology, 
geology, and aquatic biology that is required to be contained within 
the permit application. We received many comments both supporting and 
objecting to this section; these comments are addressed below.
    Several commenters addressed this section in its entirety. Of these 
commenters, some supported the revisions within the proposed rule that 
would require more extensive baseline data collection and found the 
revisions to be both attainable and prudent. In contrast, other 
commenters opposed the proposed revisions and requested that they be 
removed from the final rule. The commenters opposing the revisions 
generally considered the proposed baseline collection requirements to 
be too costly, not beneficial, duplicative of the Clean Water Act, in 
violation of section 702 of SMCRA,\347\ and inappropriate for inclusion 
in the regulations at a national or even regional scale. Commenters' 
concerns regarding duplication of the Clean Water Act are discussed in 
Part IV.I., above. We have made a number of changes to the baseline 
data collection requirements of the final rule in response to some of 
these general comments as well as more specific comments, described 
below.
---------------------------------------------------------------------------

    \347\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    One commenter suggested that we should require the applicant to 
monitor all baseline monitoring sites for all parameters throughout the 
life of the permit to ensure uniformity of the water-quality data; thus 
enhancing the ability to detect adverse impacts from the coal mining 
operation. We agree with the commenter that baseline monitoring sites 
need to be monitored throughout mining and reclamation. However, unlike 
the commenter, we recognize the need for flexibility; i.e., that the 
frequency and parameter lists of the monitoring sites could be modified 
based on site specific factors, as long as sufficient data are 
collected to adequately assess these resources. After baseline 
monitoring has been completed and mining has commenced, the operator 
can use the permit revision procedures of Sec.  774.13 to request that 
the regulatory authority modify the monitoring requirements established 
in the permit.
    A commenter commended us for requiring monthly collection of 
baseline samples as discussed in paragraphs (b)(6)(ii)(A) and 
(c)(4)(ii)(A), and excluding samples collected during abnormal 
hydrologic events. In contrast, however, many commenters thought 
collecting twelve monthly, evenly spaced, samples of groundwater and 
surface water was not necessary to establish seasonal variation and did 
nothing but add time to the permitting process and substantially 
increase costs. We disagree with this assertion. A study by the U.S. 
Environmental Protection Agency in 2001 \348\ indicated that twelve, 
evenly spaced samples were the absolute minimum to establish 
statistical rigor. As a result, we have retained this provision; 
however, we have provided the regulatory authority with some discretion 
as it relates to establishing the groundwater baseline. We discuss the 
rationale for this and change in rule language further in the

[[Page 93159]]

preamble discussion of paragraph (b). In response to other comments 
about these paragraphs, however, we clarified the extent of the 
baseline sample period by adding the term ``approximately'' with 
respect to the requirement for ``equally spaced monthly intervals.'' 
Several commenters objected to the former terminology and requested 
latitude to account for variations in field conditions. We did not 
intend the ``equally spaced monthly intervals'' to be interpreted to 
mean that there could be no variation in the monthly spacing intervals, 
but we recognize that the proposed rule could be misinterpreted. 
Therefore, we have revised the final rule at paragraphs (b)(6) about 
groundwater and (c)(4) about surface water to provide discretion 
regarding the sampling intervals. This change also responds to comments 
received from several regulatory authorities, which expressed concern 
that dangerous weather conditions and frozen streams could make it 
dangerous or impossible to collect evenly spaced monthly samples. These 
regulatory authorities noted specifically that significant snow packs 
and icy conditions can occur, particularly in the western and northern 
reaches of the coalfields. Because of groundwater contributions to 
intermittent and perennial streams, completely frozen streams are rare 
in most circumstances. Despite this rarity, we recognize the importance 
of providing the regulatory authority discretion as to what constitutes 
approximately equally spaced sampling intervals, so that dangerous 
conditions and the need to sample of completely frozen streams can be 
avoided. In addition, we have added paragraphs (b)(6)(ii)(B) and 
(c)(4)(ii)(B) to provide the regulatory authorities flexibility to 
modify the intervals to ensure the safety of personnel while conducting 
groundwater and surface water sampling trips and in the rare cases of 
completely frozen streams.
---------------------------------------------------------------------------

    \348\ U.S. Envtl. Prot. Agency, Office of Water, Statistical 
Analysis of Abandoned Mine Drainage in the Establishment of the 
Baseline Pollution Load for Coal Re-mining Permits, 266, EPA-821-B-
01-014, (Dec. 2001).
---------------------------------------------------------------------------

    We also modified the language of the paragraphs (b) and (c) 
concerning the use of the Palmer Drought Severity Index as a trigger to 
extend baseline sampling. The proposed rule contained a ``+/- 3.0'' 
standard. Several states provided an analysis of this standard for 
their respective states, which concluded that long periods of time 
existed during which daily or weekly Palmer Drought Severity Index 
exceeded +/- 3.0. The result of these analyses indicate that the time 
required under the proposed rule to collect baseline data would be 
extended for multiple years in order to meet that standard. In 
response, we have removed the reference to the Palmer Drought Severity 
Index in the context of extending the baseline data collection period.
    Another commenter opined that we did not conduct a frequency 
analysis to determine the cost of collecting and analyzing the 
disqualified baseline data to the industry, or the uncertainty of the 
cost to a mining company to obtain permits in a timely manner. The 
change discussed above removes the need for us to analyze costs to 
industry for collecting and analyzing disqualified data and for 
extended permit processing time.
    Certain paragraphs of the final rule, however, still require that 
the Palmer Drought Severity Index be noted during sample collection to 
give a sense of magnitude to precipitation deficits or surpluses. This 
notation will provide important context to the baseline data collected 
with regard to water quality and quantity. The final rule also provides 
discretion to the regulatory authority to extend the baseline sampling 
period to ensure that the baseline data collected at the site is 
representative of the premining hydrology in the area if National 
Oceanic Atmospheric Administration, or other atmospheric databases, 
including the Palmer Drought Severity Index, indicate weather 
conditions were highly unusual during the baseline sampling period.
    A commenter asserted that the proposed rule does not specify how 
all samples will be collected and analyzed or identify appropriate 
analytic methods. We have not altered the final rule in response to 
this comment because it is inappropriate to provide more than a 
framework from which to collect baseline samples due to the wide 
variety of standardized methods available to collect and analyze water. 
Commenters also claimed that we should allow the use of statistical 
methods and qualitative assessments to establish watershed baseline 
conditions. Qualitative assessments do not satisfy the intent of 
establishing the baseline conditions in a watershed. Instead of 
conducting a qualitative assessment to establish the baseline 
conditions in a watershed, it is important to collect actual baseline 
data for the permit. However, the final rule allows regulatory 
discretion in determining the statistical methods used to assess the 
baseline data collected for the permit application.
Final Paragraph (a)(1): General Requirements
    In paragraph (a)(1), we are finalizing the requirements for the 
baseline information on hydrology, geology, and aquatic biology that 
must be included within a permit application. We proposed that this 
information be provided in ``sufficient detail'' to assist the 
applicant in developing valid probable hydrologic consequences 
conclusions and to help the regulatory authority make certain 
hydrologic determinations. Several commenters requested that we clarify 
the meaning of ``sufficient detail'' or otherwise provide specific 
guidance to ensure consistency in the permitting process. A definition 
is unnecessary. Section 780.20, ``How must I prepare the determination 
of the probable hydrologic consequences of my proposed operation?'', 
describes the objective of this part, which is to ensure that the 
permit applicant provides the regulatory authority with comprehensive 
and reliable information on how it proposes to conduct surface mining 
activities and reclaim the disturbed area in compliance with the Act, 
this chapter, and the regulatory program. Therefore, each regulatory 
authority is in the best position to provide guidance on what 
constitutes ``sufficient detail'' to meet that program's requirements.
    One commenter alleged that we failed to define ``probable'' in 
Sec.  780.19(a)(1) and should provide a definition or further elaborate 
on what is sufficient to satisfy the probable hydrologic consequences 
of the operation. Webster's dictionary defines probable as ``likely to 
happen or to be true but not certain.'' \349\ This common definition 
adequately describes the intent of the certainty of events that need to 
be evaluated when determining the probable hydrologic consequences and 
no further regulatory definition is needed.
---------------------------------------------------------------------------

    \349\ probable. 2016. In Merriam-Webster.com. Retrieved Nov. 2, 
2016, from http://www.merriam-webster.com/dictionary/probable. 
Oxford Univ. Press.
---------------------------------------------------------------------------

    Several commenters expressed concern about the ability to acquire 
landowner permission for sampling in the adjacent area for baseline or 
monitoring purposes. We are aware of this concern, but it has been an 
issue since SMCRA was passed and has been successfully navigated for 
the past 35 years. Furthermore, the regulatory authority has the 
latitude to modify sampling locations when landowner access is 
problematic.
    Several commenters were opposed to proposed paragraph (a)(4), now 
paragraph (a)(1)(iv), which would have required baseline information in 
sufficient detail to assist the regulatory authority in preparing the 
cumulative hydrologic impact assessment. As

[[Page 93160]]

required by Sec.  780.21, the cumulative hydrologic impact assessment 
includes an evaluation of whether the proposed operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area. These commenters criticized a perceived lack of 
sufficient technical guidance with respect to the information and 
metrics needed in the cumulative hydrologic impact assessment. Because 
these comments are more relevant to Sec.  780.21, relating to 
requirements that apply to the preparation and review of the cumulative 
hydrologic impact assessment, these comments are addressed within that 
section.
Final Paragraph (a)(2): Core Baseline Water-Quality Data Requirements 
for Surface Water and Groundwater
    In response to many of the general comments outlined above, we have 
made changes to the baseline data collection requirements. 
Significantly, we have removed six parameters that we proposed to have 
operators collect and analyze in surface water and groundwater--
ammonia, arsenic, cadmium, copper, nitrogen, and zinc.\350\ Removing 
these parameters will reduce the amount of data collected and the 
potential for duplication without reducing the protections proposed. 
First, information on the presence or absence of the parameters we 
removed is available under an existing Clean Water Act process. 
Pursuant to 40 CFR 122.44(d), the Clean Water Act NPDES permitting 
authority completes a reasonable potential analysis and develops permit 
limits for any pollutant in an authorized discharge that has a 
reasonable potential to cause or contribute to an exceedance of water 
quality criteria. The parameters we removed, except for ammonia and 
nitrogen, are contained in the parameter list for the baseline 
determination for reasonable potential analysis. Second, state 
regulatory agencies indicated these parameters are rarely found in mine 
effluent in appreciable concentrations. Third, we have made revisions 
to the final rule to ensure that regulatory authorities have the 
flexibility to require collection of additional parameters and/or 
monitoring. Specifically, we added language to Sec. Sec.  780.19(b)(4) 
and 780.19(c)(2) to clarify that a regulatory authority can require 
baseline collection of any parameter that is not on the list of 
parameters contained in these regulations. One commenter mistakenly 
asserted that because we have identified the parameter specific 
conductance as a core baseline water-quality requirement, we are, by 
default, enforcing an effluent limit standard for conductivity. We do 
not prescribe the water quality standards for discharges from mine 
sites. Instead, the Clean Water Act authority makes those 
determinations.\351\ Inclusion of the parameter specific conductance in 
the baseline sampling as part of the baseline sampling protocol is 
meant to provide another parameter to help establish the premining 
water-quality conditions.
---------------------------------------------------------------------------

    \350\ 80 FR 44436, 44600-44601 (Jul. 27, 2015).
    \351\ See, e.g., U.S. Envtl. Prot. Agency, A Field-Based Aquatic 
Life Benchmark for Conductivity in Central Appalachian Streams 76 FR 
30938 (May 27, 2011).
---------------------------------------------------------------------------

    A number of commenters suggested various parameters be added or 
deleted from the baseline data collection list found in proposed Sec.  
780.19.\352\ Conversely, a number of commenters objected to the 
expanded list as too costly, too burdensome to collect, analyze, or 
review, and without offering any real benefit to establishing the 
baseline condition in the streams. Several commenters took a more 
moderate approach and suggested that any extra parameters beyond those 
required over the last 30 years should be considered for discretionary 
inclusion by each regulatory authority and not be part of a nationwide 
list. As discussed above, we have removed several parameters from the 
mandatory list in response to commenters' suggestions. We have also 
declined to add other parameters to a nationwide list, but the rule 
affords necessary discretion to the regulatory authority to add other 
parameters if deemed useful at a particular site. Within the final 
rule, for the sake of clarity, we have listed the parameters in a table 
located in renumbered Sec.  780.19(a)(2) for both surface water and 
groundwater.
---------------------------------------------------------------------------

    \352\ 80 FR 44436, 44600-44601 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several commenters suggested the cation-anion balance requirement 
should be removed from the parameter list unless laboratory data is 
suspected to be inaccurate. The cation-anion ratio is a measure of the 
electrical neutrality of the water sample. To achieve electrical 
neutrality, the sum total of the negatively charged particles (anions) 
must equal the sum of the positively charged particles (cations). When 
the two are approximately equal, two things are evident--no ions with 
substantive concentrations are missing from the sample and the analysis 
is accurate. Analyzing just the major cations and anions will not 
usually result in exact proportions of positive and negative ions 
because not every ion is analyzed. When the ratio is not within 
approximately 10%, it indicates that either the analysis is flawed by 
under or over-reporting the ionic content of a particular ion or an ion 
constituting a significant portion of the water sample is missing. For 
either reason, the cation-anion balance is a quick, easy, and 
inexpensive method of performing quality assurance and quality control 
of the water sample. For these reasons, we have retained the cation-
anion balance requirement. We also note that most labs report this 
ratio when the major cations and anions are analyzed.
    A commenter suggested that the preamble discuss the differences in 
how variations in selenium speciation impacts aquatic life. Selenium 
speciation refers to the different forms of selenium (elemental, 
selenate, selenite, and selenide). A fact sheet from the California 
Resources Agency provides a concise summary, which we paraphrase 
here.\353\ Selenium has a complex environmental chemistry. In natural 
systems, it occurs in four different chemical (oxidation or valence) 
forms: Selenide (Se2-); elemental selenium (Se0); selenite (Se4+), and 
selenate (Se6+). The form selenium takes in nature depends on a variety 
of environmental conditions, and the chemical form is very important in 
understanding how it affects aquatic life. In alkaline surface waters 
that are commonly found in arid areas, selenium occurs mainly as 
soluble selenate salts that are highly mobile because they are soluble 
in water and do not adhere well to soils. Selenates can be reduced to 
selenites, which are more readily accumulated by fish and other aquatic 
organisms. Selenites may be converted to elemental selenium, which is 
not very soluble in water and is not readily taken up by plants or 
animals. In sediment, most of the selenium may occur in the elemental 
form. If sediments become oxidized (exposed to air) most of the 
selenium can be converted to selenates and selenites. Metal and organic 
selenides also are common in bottom sediments. Like elemental selenium, 
selenides can become oxidized to forms that are more available to 
plants and wildlife. Organic forms of selenium also occur in or are 
produced by plants and animals. While the organic forms of selenium are 
typically less abundant than inorganic selenium (selenate and 
selenite), the

[[Page 93161]]

organic forms are important from a biological toxicity standpoint.
---------------------------------------------------------------------------

    \353\ State of California Res. Agency, Fact Sheet: Selenium and 
Its Importance to the Salton Sea (Feb. 2005), http://www.water.ca.gov/serp.cfm?q=selinium&cx=001779225245372747843%3Amxwnbyjgliw&cof=FORID%3A10&ie=UTF-8&submit.x=13&submit.y=3. (last accessed Nov. 1, 2016).
---------------------------------------------------------------------------

    Despite these differences in selenium speciation, we find no need 
to revise the proposed rule in response to this comment. Like the 
proposed rule, the final rule at Sec.  780.19(b) requires baseline data 
on total and dissolved selenium in surface water and the dissolved 
fraction in groundwater. Other provisions of Sec.  780.19 require 
detailed baseline information on geology, including geochemistry. This 
combination should be adequate for the applicant to prepare a probable 
hydrologic consequences determination, as discussed in Sec.  780.20, 
that predicts the impact of the proposed operation on levels of 
selenium and other parameters in surface water and a hydrologic 
reclamation plan, as discussed in Sec.  780.22, that explains how the 
applicant will address adverse impacts and prevent material damage 
outside the permit area. The regulatory authority must independently 
prepare a cumulative hydrologic impact assessment of whether the 
proposed operation would cause material damage to the hydrologic 
balance outside the permit area in conformity with Sec.  780.21.
    Several commenters suggested that we require testing for dissolved 
analytes instead of total analytes for groundwater. We agreed with the 
suggestions because under ideal conditions (proper well construction, 
well development, and groundwater sampling procedures) field-filtered 
groundwater samples (dissolved) should yield identical metal 
concentrations when compared to unfiltered groundwater samples; \354\ 
hence, we have made the change at Sec.  780.19(a)(2) of the final rule.
---------------------------------------------------------------------------

    \354\ Robert A. Saar, Filtration of ground water Samples: A 
review of Industry practice, 17(1) Groundwater Monitoring and 
Remediation, 56-62, (Feb. 1997); U.S. Envtl. Prot. Agency, Envtl. 
Engineering Committee of the Science Advisory Board, To filter, or 
not to filter; That is the question, 1997, EPA-SAB-EEC-LTR-97-011, 
(Sept. 1997).
---------------------------------------------------------------------------

    One commenter suggested that, when evaluating stream function, more 
than flow data should be collected. The commenter further opined that 
the baseline data collection should include an evaluation of the 
premining hydrological regime and the material composition of stream 
beds, flow patterns, water chemistry, and surface water temperature. We 
agree, however, all of these requirements, except temperature, are 
addressed in the proposed rule that we are finalizing today at 
paragraph (c)(6)(iii)(A) and Sec.  784.19(c)(6)(i)(A). The omission of 
water temperature from paragraph (c)(6)(iii)(A) and Sec.  
784.19(c)(6)(i)(A) was an oversight. It is important to require water 
temperature measurements for all water-quality samples because water 
temperature influences biological activity and water chemistry. Based 
on the commenter's suggestion, we have revised the parameters in 
paragraph (a)(2) of this section to include temperature within the 
baseline data collection requirements for surface water and 
groundwater.
Final Paragraph (b): Groundwater Information
    Several commenters raised concerns with Sec.  780.19(b)(2) about 
baseline collection requirements when an underground mine is present 
within the permit or adjacent area. One commenter asserted that the 
need for the requirement was too narrow and that this change lacked 
justification. Another commenter thought sampling all mine works within 
500 feet of the proposed operation should be sufficient. We disagree 
with both of these comments. Both the regulatory authority and the 
applicant need to understand the spatial and temporal relationships of 
adjacent and/or overlying mine works. Both entities need to analyze 
water quality and quantity data regarding underground mine pools in 
areas adjacent to proposed permitting actions; especially if the mine 
works are hydrologically connected to the proposed permitted area. This 
information and data are necessary for the applicant to analyze the 
probable hydrologic consequences and for the regulatory authority to 
develop the cumulative hydrologic impact assessment. We note, however, 
that the applicant is not required to undertake the sampling unless the 
regulatory authority finds that a hydrologic connection exists between 
the adjacent or overlying underground mine and the proposed operation. 
When permitting an operation that may hydrologically impact an adjacent 
underground mine pool, there is no justification for ignoring that 
connection. Hydrologically connected underground mine pools may result 
in the need for treatment facilities because the water quality in those 
mine pools may affect the proposed operation and may also pose 
significant environmental and safety concerns if the new operation 
causes problems due to underground openings that are flooded or gas-
filled.
    In proposed paragraph (b)(2), we required an assessment of the 
characteristics of underground mine pools present in the permit area 
and stated that the determination of the probable hydrologic 
consequences required under Sec.  780.20 must include a discussion of 
the effect of the proposed mining operation on ``any'' underground mine 
pools within the proposed permit and adjacent areas. One commenter 
objected to the unilateral treatment of underground mine pools. The 
commenter argued that mine pools below drainage elevation have a low 
chance or historic incidence of impacting surface hydrology. Thus, the 
commenter alleged that applying this provision to mine pools below 
drainage elevation would add effort and expense with limited to no 
environmental benefits. We decline to make modifications based on this 
comment for several reasons. First, all underground mine pools are part 
of a hydrologic system whether there classified as above drainage or 
below drainage.\355\ Information about how mine pools affect baseline 
hydrologic conditions is necessary to estimate the impacts the proposed 
operation will have on the hydrologic system, including mine pools. 
Second, several examples exist of active coal mining operations 
breaching flooded adjacent mines and inundating the active mines with 
water.\356\ Consequently, knowing the extent and characteristics of 
adjacent mine pools is a vital piece of information for both safety and 
environmental reasons. Third, contrary to the commenter's statements, 
examples exist of flooded underground mine pools discharging to 
streams.\357\ For these reasons, we are retaining the requirement for 
an assessment of the characteristics of any underground mine pool 
within the permit area or adjacent areas as proposed.
---------------------------------------------------------------------------

    \355\ David M. Light & Joseph J. Donovan,, Mine-water flow 
between contiguous flooded underground coal mines with hydraulically 
comprised barriers, 21(2) Environmental & Engineering Geoscience, 
147-164, (May 2015).
    \356\ J. Donovan, et al., 6th ICARDS Cairns, QLD, pp. 869-875 
(2003); Pennsylvania Dep't. of Envtl. Prot., Report of Comm'n. on 
Abandoned Mine Voids and Mine Safety, p. 3 (2002).
    \357\ J.W. Hawkins and M. Dunn, Final report Fairmont, West 
Virginia mine-pool, Hydrologic characteristics of a 35-year-old 
underground mine pool, U.S. Dep't. of the Interior, OSMRE, Mine 
Water and the Environment, Vol. 26, pp. 150-159 (2014).
---------------------------------------------------------------------------

    Another commenter alleged that we provided no details on the 
methods that the applicant should use to assess seasonal changes in 
quality, quantity, and flow patterns in a given mine pool. They also 
asserted that we provided no information about how the applicant should 
demonstrate that the mine pool is or is not physically connected to the 
proposed operation. Details on assessing seasonal changes and 
associated methodology are best left to the discretion of the 
regulatory authority. Industry and the technical reviewers

[[Page 93162]]

have a wide array of skills, expertise, and methods that enable this 
requirement to be addressed. With respect to demonstrating the 
hydraulic connection between mine pools, methods exist to provide a 
reasonable demonstration of hydraulic interaction. These methods 
include installation of piezometers in the strata of interest with an 
assessment of the hydraulic head, groundwater movement patterns, and 
structural geology influences between the mine site and adjacent 
mining.
    Several commenters suggested that the ``modeling'' we specified for 
predicting mine pools has not yet been developed or validated for most 
mining regions and therefore is not practicable. We disagree with these 
comments. Modeling is a broad term and incorporates the entire range of 
models from simple mathematical models to complex numerical models. We 
are not prescribing the exact modeling methods to be used; the 
regulatory authority has discretion to make this determination on the 
level of detail required.
    Related to paragraph (b)(3), ``[m]onitoring wells,'' several 
commenters suggested we remove the phrase ``when necessary'' from 
Sec. Sec.  780.19(b)(3) and 784.19(b)(3) with respect to when an 
applicant must install monitoring wells to document seasonal 
groundwater variation. We agree with the commenter and have made this 
change because the information is necessary to determine groundwater 
movement of parameters to down gradient water bodies and to be able to 
evaluate impacts to groundwater quantity and quality as a result of the 
mining operation.
    Several commenters suggested that groundwater quantity measurements 
required in paragraph (b)(5) for each coal seam and aquifer are not 
necessary to establish baseline characterization and did nothing but 
add additional cost. Another commenter asserted that installation of up 
and down gradient monitoring wells, as required by paragraph (b)(6), is 
not necessary because it adds unnecessary time and cost to the 
permitting process and should be left to the discretion of the 
regulatory authority. We disagree with these comments. Groundwater 
levels can change over relatively large areas as the result of surface 
and underground coal mining. Changes in groundwater levels can affect 
groundwater flow direction, travel times, and water quality, 
potentially resulting in adverse impacts to the hydrology within and 
outside the permit area. Without adequate monitoring in place, it 
becomes significantly harder to do the evaluation and to correct the 
problem before it becomes more widespread.
    A commenter opined that the groundwater data that we proposed to 
require in paragraph (b)(5) is insufficient to establish groundwater 
quantity and that groundwater discharge rates or usage rates as 
required in this section do not represent groundwater quantity. The 
commenter asserted that the direction of groundwater flow (horizontally 
and vertically) requires elevation data, not just depth to water data. 
We agree and have modified the final rule text requiring elevation data 
for water table surfaces and potentiometric head surfaces. The same 
commenter asserted that to determine the quantity of groundwater, an 
operator would need information on the geometry of the aquifer (area 
times saturated thickness). The commenter suggested that we require 
information on the areal extent of aquifers and saturated thickness. We 
agree with the commenter and have revised the final rule text to 
require that the applicant determine the areal extent and thickness of 
aquifers. Although we agree with the commenter that groundwater 
discharge rates or usage rates do not represent groundwater quantity, 
we have retained the requirement for this information in the final rule 
because it is closely associated with groundwater quantity.
    Several commenters objected to the use of the term ``water bearing 
stratum'' in proposed paragraph (b)(5). In response, we have changed 
the term ``water bearing stratum'' to ``aquifer'' in recognition of 
commenters' concern that, as proposed, this provision might have been 
misinterpreted to include water contained in rock units that do not 
sufficiently supply water in usable quantities. The term ``aquifer'' is 
used in hydrogeology to denote water bearing units with properties to 
yield water in economic quantities sufficient to supply domestic or 
public water wells. We are aware of the use of perched aquifer systems 
in many states, and this terminology change helps satisfy the 
commenter's concern and affords users of these systems the sampling, 
monitoring, and protections found in the revised regulations.
    One commenter opposed our limits on using extrapolated measurements 
to determine seasonal variations in groundwater and surface water 
quality. Like the proposed rule, the final rule does not allow 
extrapolated data to be used because based on our past experience, 
extrapolating data is not a reliably accurate method to document and 
describe seasonal variations in chemical parameters. Because seasonal 
variations can be significant, we require collection of this data.
    One commenter stated that the requirements related to the frequency 
and duration of data collection and requirement for the geographic 
distribution of wells in proposed, and now final paragraph (b)(6), are 
welcome additions to the groundwater characterization requirements.
    Several commenters suggested that groundwater quality does not 
change much over the course of a month or a year; therefore, twelve 
monthly samples should not be required. We agree and have revised the 
final rule by adding paragraph (b)(6)(ii)(C), which affords the 
regulatory authority discretion to grant the applicant an option to 
collect eight samples spread over two years with certain conditions. 
Specifically, the regulatory authority may initiate review of the 
permit application after collection and analysis of the first four 
quarterly groundwater samples, but it may not approve the application 
until after receipt and analysis of the final four quarterly 
groundwater samples. We are allowing regulatory authority to start 
reviewing the application because the likelihood of the groundwater 
data substantially changing during the final four quarters is low due 
to typically slow groundwater travel times.
Final Paragraph (c): Surface-Water Information
    One commenter expressed concern with proposed paragraph (c)(2)(xix) 
relating to surface water quality descriptions, which would have 
required baseline information for any parameter added to a National 
Pollutant Discharge Elimination System permit. The commenter indicated 
that this requirement would cause unnecessary delays to the SMCRA 
permit review process because the National Pollutant Discharge 
Elimination System permit is often not obtained until later in the 
SMCRA permitting process, which could require the applicant to redo the 
baseline collection data. We agree and have revised the rule to clarify 
that the National Pollutant Discharge Elimination System parameter 
requirement would apply only when those parameters are known at the 
time of permit application. This change should ensure that there are no 
unnecessary permitting delays as a result of this requirement.
    One commenter noted that the requirements in proposed paragraph 
(c)(3)(i) referring to ephemeral streams contradicted with the 
requirements in proposed paragraph (c)(4)(i). In proposed paragraph 
(c)(3)(i), we specified that the applicant provide

[[Page 93163]]

baseline information on seasonal flow variations and peak-flow 
magnitude and frequency for all perennial, intermittent, and ephemeral 
streams and other surface-water discharges within the proposed permit 
and adjacent areas. However, proposed paragraph (c)(4)(i) specified a 
requirement that the permit applicant establish monitoring points in a 
representative number of ephemeral streams within the proposed permit 
area, to ensure collection of data sufficient to fully describe 
baseline surface water conditions. For clarity, the monitoring 
requirements for a representative sample of ephemeral streams has been 
retained in final paragraph (c)(4)(i)(B) and removed from final 
paragraph (c)(3), which now only applies to perennial and intermittent 
streams. As discussed in the preamble to the proposed rule,\358\ we 
proposed to modify the previous regulations to require the use of 
generally-accepted professional flow measurement techniques to ensure 
the accuracy of baseline flow data. We proposed this change to 
eliminate visual and estimated flow methods which have proven to be 
very inaccurate. Accurate flow measurements must be obtained to 
appropriately evaluate the impacts of the operation on receiving 
streams. We received numerous comments about various aspects of our 
proposed flow measurement changes. One commenter indicated that the 
proposed rule could be interpreted to ban the use of weirs. This is 
incorrect; weirs are not banned. A weir is a calibrated device using a 
pre-defined stage-discharge measurement that can be visually recorded 
by noting the stage of the water flowing through the weir. The 
distinction is that the visual observation of a stage or measurement 
has been calibrated to a stage-discharge curve and produces an accurate 
flow estimate. This method has a scientific basis and provides the 
level of accuracy and precision necessary to derive accurate flows.
---------------------------------------------------------------------------

    \358\ 80 FR 44436, 44498 (Jul. 27, 2015).
---------------------------------------------------------------------------

    One commenter suggested that the proposed rule should be modified 
to continue to allow well-accepted, standardized, flow measurement 
methods. We agree; the final rule does allow-generally accepted 
methods, but does not allow visual flow estimates for the reasons 
discussed above. Another commenter opined that not allowing visual flow 
measurements would create conflict with the requirements of agencies 
that do allow visual flow measurements. Because visual observations are 
not acceptable under the final rule, there should be no conflict. Non-
SMCRA agencies that accept visual flow measurements can continue to do 
so even if our requirements are more rigorous. Another commenter 
suggested we add language pertaining to peer-reviewed citations to 
document the flow measurement method chosen. This is not necessary 
because the regulatory authority can decide the generally-accepted 
measured flow method it prefers and require whatever documentation 
necessary to substantiate the flow measurement method.
    A few commenters remarked that we did not fully consider the 
burdensome costs to industry of implementing the proposed requirements 
in 780.19(c)(3)(i)(A) about measuring and analyzing peak flow. We agree 
with the commenters that the costs of measuring and analyzing peak flow 
magnitude and frequency were not fully considered, but we have 
corrected that omission in the RIA and addressed it in the preamble 
discussion of the Paperwork Reduction Act of 1995, below. However, we 
do not agree with the commenters that the additional costs to obtain 
this data would pose an unrealistic burden and thus should be 
eliminated. The data collected as part of final paragraph (c)(3)(i)(A) 
will help establish a surface water flow baseline that industry and the 
regulatory authority can use to better assess the impacts of mining and 
the effectiveness of reclamation.
    One commenter claimed that the regulations are overbroad in that 
they require upgradient and down gradient baseline sampling points on 
all intermittent and perennial streams even if impacts are not 
probable. The regulations at paragraph (c)(4)(i)(A) require baseline 
characterization on all intermittent and perennial streams on and 
adjacent to the permitted area. This information is not overbroad 
because it is vital to help the applicant and regulatory authority to 
understand the surface water system, provide context and data for the 
probable hydrologic consequence determination, hydrologic reclamation 
plan, and cumulative hydrologic impact assessment analysis, and to 
protect both the operator and regulatory authority in the event of a 
non-mining related impact in the surface water system on or adjacent to 
the permitted area. The commenter also requested that we provide 
greater clarity to the word ``potentially'' in the context of 
monitoring on potentially affected streams. Potentially affected 
streams are all streams capable of receiving mine water from the 
permitted site and streams undermined by an underground mining 
operation. In underground mining operations, the regulation also 
requires sampling all streams within a reasonable angle of de-watering 
as provided in the definition at Sec.  701.5.
    With regard to paragraph (c)(4)(i)(B), a commenter suggested that 
we specify the number of sampling locations that qualify as a 
representative number when sampling ephemeral streams and other 
commenters requested more guidance on who determines the 
``representative sample of ephemeral streams.'' We decline to prescribe 
the number of representative samples that adequately characterize 
ephemeral streams, hydrology, and biology and instead rely on the 
applicant and regulatory authority to decide the density of sampling on 
ephemeral streams. It is within the regulatory authority's discretion 
to determine what constitutes a representative sample of ephemeral 
streams in order to ensure the permit application contains ``sufficient 
detail'' about the hydrology, geology, and aquatic biology as required 
by paragraph (a). We also decline a request from a commenter to 
prescribe what ``sufficient detail'' means in this context. The 
regulatory authority is in the best position to determine whether a 
permit application contains sufficient detail about hydrology, geology, 
and aquatic biology for it to process the application.
    Another commenter suggested ephemeral stream sampling for twelve 
consecutive months was not possible because ephemeral streams only flow 
in response to precipitation events. We agree with the comment and have 
added language in several places to clearly indicate a zero flow event 
is a valid flow observation. The commenter also recommended daily 
measurements of intermittent and perennial streams in the proposed and 
adjacent areas to separate seasonal and event-generated variations. We 
are declining to require daily flow measurements but sufficient 
discretion exists within the rule for regulatory authorities to require 
daily flow measurements when they deem it necessary to characterize 
baseline conditions.
    Several commenters favored the increased monitoring requirements 
and went further to suggest that twenty-four months of data should be 
collected, analyzed, and submitted for permit application review. We 
decline to require twenty-four months of data because of the 
statistical validity offered by twelve months of evenly spaced data, as 
discussed above. However, the regulatory authority does have the 
latitude to require as much additional baseline data as necessary to 
adequately characterize baseline.
    A commenter opined that the requirements outlined in proposed

[[Page 93164]]

paragraph (c)(4) amounted to a snapshot in time and were inadequate to 
determine the baseline flow conditions. As we understand the comment, 
the commenter suggests that obtaining peak flow measurements up and 
down gradient of the proposed operation on all intermittent and 
perennial streams is insufficient to characterize seasonal variation. 
We disagree with the assertion. The minimum requirements prescribed by 
the regulation provide an adequate baseline characterization. Further, 
the combination of the locations identified in final paragraphs (c)(4), 
quantitative measurements found in (c)(3), minimum parameter list at 
(a)(2), and monthly frequency at (c)(4) will provide adequate baseline 
characterization. These regulations are minimum sampling requirements; 
the regulatory agency may require more locations, samples, and 
increased frequency as necessary.
    We received many comments about the requirement in paragraph (c)(5) 
for self-recording devices to measure precipitation. Most commenters 
alleged the devices were prone to maintenance problems, that they were 
not practical on large mine sites, and/or that adequate measurements 
could be obtained from other sources. The final rule still requires 
these devices because variations in precipitation can occur over 
relatively small areas. For example at large mine sites, the operator 
might need more than one recording device to ensure that precipitation 
events are recorded adequately at the mine site. The commenters' 
concern over maintenance is an issue that can be addressed when the 
operator is choosing a self-recording device to measure precipitation. 
There are many types of self-recording devices to measure precipitation 
on the market and not all have the same issues with maintenance. Any 
mechanical device left in the environment is prone to some maintenance 
issues, but operators can minimize these issues by choosing a device 
that best fits their site. Similarly, a commenter asked for 
clarification surrounding use and validity of hydrologic models 
generated by precipitation records. The final rule text at paragraph 
(c)(5)(ii) is clear and provides the regulatory authority with 
discretion to determine if a hydrologic model is necessary, and, if so, 
the regulatory authority can decide the accuracy and validity of the 
model results. Another commenter suggested that the final rule should 
not require a precipitation recording device at each permitted area. 
The commenter suggested that several ``permit areas'' can be in very 
close proximity to one another resulting in redundant data collection. 
We agree and have added paragraph (c)(5)(iii) in the final rule to 
allow close proximity permitted areas to share a precipitation 
recording device. However, it is important to note, as we mention 
above, that because precipitation can vary significantly across 
relatively small areas, the regulatory authority should carefully 
consider exercising this discretion because a precipitation recording 
device located nearby will not always provide accurate data for the 
precipitation event at the mine site.
Final Paragraph (c)(6): Stream Assessments
    We received numerous comments, both supporting and objecting to the 
scope and scale of our proposed stream assessment requirements in 
Sec. Sec.  780.19(c)(6) and 780.19(e), especially as they related to 
the following requirements: Sampling of macroinvertebrate populations 
within all streams; ephemeral stream baseline sampling; and detailed 
descriptions of stream channel and streamside vegetation requirements 
for streams in the adjacent area. Commenters asked how that information 
would be useful in designing the mining and reclamation plan or in the 
context of other SMCRA regulatory program requirements. Some commenters 
recommended requiring data for only a representative sample of all 
streams, rather than for each stream. Further, we received other 
comments on a variety of topics. All of these comments are addressed 
below.
    In the final rule, we have consolidated all stream assessment 
requirements in Sec.  780.19(c)(6) by merging proposed paragraphs 
(c)(6) and (e). Comments relevant to proposed paragraph (e) are 
addressed in this section. In addition to consolidating the paragraphs, 
we have carefully reevaluated each component of the proposed rule 
concerning stream assessments. The final rule retains only those 
components that add value to the permitting process and that have 
utility in the context of SMCRA regulatory programs. However, for the 
most part, we have not adopted the suggestion to require data only for 
a representative sample of streams. Each stream is unique in terms of 
configuration, vegetation, and aquatic life. Therefore, it is important 
to include data specific to each stream in the permit application. The 
following table summarizes how we revised the data requirements from 
the proposed rule to the final rule.

------------------------------------------------------------------------
                                 Required in Proposed  Required in Final
  Stream assessment component        Rule [30 CFR         Rule [30 CFR
                                   780.19(c)(6)&(e)]     780.19(c)(6)]
------------------------------------------------------------------------
Map with identification of each  All perennial,        All perennial,
 stream.                          intermittent, and     intermittent,
                                  ephemeral streams     and ephemeral
                                  within the proposed   streams within
                                  permit and adjacent   the proposed
                                  areas.                permit area.
                                                       All perennial and
                                                        intermittent
                                                        streams within
                                                        the adjacent
                                                        area.
Location of transition points    All perennial,        All perennial,
 from ephemeral to intermittent   intermittent, and     intermittent,
 and from intermittent to         ephemeral streams     and ephemeral
 perennial.                       within the proposed   streams within
                                  permit and adjacent   the proposed
                                  areas.                permit area.
                                                       All perennial and
                                                        intermittent
                                                        streams within
                                                        the adjacent
                                                        area.
Stream pattern, profile, and     All perennial,        All perennial and
 dimensions, with measurements    intermittent, and     intermittent
 of channel slope, sinuosity,     ephemeral streams     streams within
 water depth, alluvial            within proposed       the proposed
 groundwater depth, depth to      permit and adjacent   permit.
 bedrock, bankfull depth,         areas.
 bankfull width, width of the
 flood-prone area, and dominant
 in-stream substrate.
Streamside vegetation            All perennial,        All perennial,
 characteristics.                 intermittent, and     intermittent,
                                  ephemeral streams     and ephemeral
                                  within proposed       streams within
                                  permit and adjacent   the proposed
                                  areas.                permit area.
Identification of stream         All perennial,        All perennial,
 segments on list of impaired     intermittent, and     intermittent,
 surface waters under section     ephemeral streams     and ephemeral
 303(d) of the Clean Water Act.   within the proposed   streams within
                                  permit and adjacent   the proposed
                                  areas.                permit and
                                                        adjacent areas.

[[Page 93165]]

 
Extent and quality of            No..................  All perennial,
 streamside wetlands.                                   intermittent,
                                                        and ephemeral
                                                        streams within
                                                        the proposed
                                                        permit area.
                                                       All perennial and
                                                        intermittent
                                                        streams within
                                                        the adjacent
                                                        area.
Biological condition...........  All perennial and     All perennial
                                  intermittent          streams within
                                  streams within the    the proposed
                                  proposed permit       permit area.
                                  area..
                                 All perennial and     Each perennial
                                  intermittent          stream within
                                  streams within the    the adjacent
                                  adjacent area that    area that could
                                  would receive         be affected by
                                  discharges from the   the proposed
                                  proposed operation..  operation
                                 A representative      All intermittent
                                  sample of ephemeral   streams within
                                  streams within the    the proposed
                                  proposed permit       permit area, if
                                  area.                 a scientifically
                                 A representative       defensible
                                  sample of ephemeral   protocol for
                                  streams within the    assessment of
                                  adjacent area that    intermittent
                                  would receive         streams has been
                                  discharges from the   established. In
                                  proposed operation.   the absence of a
                                                        protocol, a
                                                        description of
                                                        the biology of
                                                        the stream is
                                                        required.
                                                       Each intermittent
                                                        stream within
                                                        the adjacent
                                                        area that could
                                                        be affected by
                                                        the proposed
                                                        operation, if a
                                                        scientifically
                                                        defensible
                                                        protocol for
                                                        assessment of
                                                        intermittent
                                                        streams has been
                                                        established. In
                                                        the absence of a
                                                        protocol, a
                                                        description of
                                                        the biology of
                                                        the stream is
                                                        required.
Location of channel head on      All perennial,        All perennial,
 terminal reaches of stream.      intermittent, and     intermittent,
                                  ephemeral streams     and ephemeral
                                  within the proposed   streams within
                                  permit and adjacent   the proposed
                                  areas..               permit area
                                                       All perennial and
                                                        intermittent
                                                        streams within
                                                        the adjacent
                                                        area.
------------------------------------------------------------------------

    The language contained in the introductory text of proposed 
paragraph (c)(6) has been revised and is included as part of final 
paragraphs (c)(6)(i) and (ii). Final paragraph (c)(6)(i), now requires 
the applicant to map and separately identify all perennial, 
intermittent, and ephemeral stream segments within the proposed permit 
area and all perennial and intermittent stream segments within the 
adjacent area. In the proposed rule, these requirements would have 
extended to ephemeral streams adjacent to the permit area as well, but 
this requirement has been eliminated in the final rule because we have 
determined that the data collected from adjacent ephemeral streams 
would serve no useful purpose within a SMCRA permit as there are no 
performance standards or reclamation requirements pertinent to 
ephemeral streams in adjacent areas. That is not the case for ephemeral 
streams within the proposed permit area because final rule Sec. Sec.  
780.27 and 816.56 establish permitting and reclamation requirements 
that apply when mining in or through an ephemeral stream. For the 
purposes of clarity and continuity, proposed paragraph (c)(6)(iv) has 
been moved to final paragraph (c)(6)(i)(B), and proposed paragraph 
(c)(6)(v) has been moved to final rule (c)(6)(i)(C). In final paragraph 
(c)(6)(i)(C), we have also clarified that any map of streams must be 
consistent with any U.S. Army Corps of Engineers determination of the 
locations of transition points from ephemeral to intermittent and from 
intermittent to perennial streams, and vice versa, when applicable, to 
the extent such a determination exists.
    In final paragraph (c)(6)(ii) we begin to explain the substantive 
stream assessment requirements. This paragraph was located in the 
proposed rule at 780.19(c)(6)(i). Some commenters opposed the proposed 
rule because many of the requirements were inapplicable to ephemeral 
streams. In response, we have divided this portion of the rule into two 
separate categories--perennial and intermittent streams, and ephemeral 
streams. For perennial and intermittent streams, final paragraph 
(c)(6)(ii)(A) requires the same amount of information as in the 
proposed rule; however, because this type of information is not easily 
attainable and would not be useful within these final regulations, we 
have now excluded ephemeral streams from these requirements. Now, in 
final paragraph (c)(6)(ii)(B), we require only a description of the 
general stream-channel configuration of ephemeral streams within the 
proposed permit area.
    In response to comments claiming this portion of the rule was 
confusing when it referred to ``riparian zone'' vegetation, the 
requirements within proposed rule paragraphs (c)(6)(ii) and (vi), now 
final paragraphs (c)(6)(iii) and (iv), have been revised for clarity. 
First, final paragraph (c)(6)(iii) now specifies the types of 
vegetation that we were referring to when we proposed to require a 
description of ``riparian zone vegetation''. Specifically, in the final 
rule, we have changed ``riparian zone vegetation'' to ``vegetation 
growing along the banks of each stream'' and ``percentage of the 
riparian zone that is forested'' to ``[t]he extent to which streamside 
vegetation consists of trees and shrubs''. Second, final paragraph 
(c)(6)(iv) now states that ``[y]ou must identify the parameters 
responsible for the impaired condition and the total maximum daily 
loads associated with those parameters, when applicable.'' This 
language is clearer than the general reference to stressors in the 
proposed rule, as this has been replaced with identification of the 
parameters that cause the impaired condition.
    We have also made a substantive change to final paragraph 
(c)(6)(iii) by adding an additional requirement--a scientific 
calculation of the species diversity of the vegetation. This addition 
was made in response to comments from other federal agencies that 
stated it will assist the regulatory authority in documenting baseline 
conditions with an appropriate level of detail and better ensure 
restoration of any streamside vegetative corridors damaged or destroyed 
by mining in or near streams. We agree and have modified the final rule 
accordingly.
    Many commenters raised concerns about the data we are requiring in 
final paragraphs (c)(6)(ii) and (iii). Some commenters recommended that 
we identify specific methodologies that would be used to gather these 
data required in the final rule within

[[Page 93166]]

Sec.  780.19(c)(6)(ii) and (iii). Other commenters requested that the 
applicant have the option of collecting vegetative information using 
aerial mapping and/or other geographic information system data or 
methodologies. According to these commenters, the methodologies for 
collecting these data should be left to the discretion of the 
regulatory authority due to varying regional and site specific 
conditions and should be determined on a case-by-case basis. We agree 
with other commenters that suggested the on-the-ground locations of the 
data points should be determined as a collaborative effort between the 
regulatory authority and the applicant and that specific methodologies 
should not be identified in this rule. The regulatory authorities are 
in the best position to assess the methodologies, protocols, and 
locations acceptable for the data collection requirements within the 
final paragraphs (c)(6)(ii) and (iii). In some situations, the 
regulatory authority may determine that it is scientifically defensible 
to use aerial mapping and/or other geographic information system data 
when sampling during the correct time of year, for example during full 
leaf-out, to determine the extent to which streamside vegetation 
consists of trees and shrubs and the percentage of channel canopy 
coverage as required in final paragraphs (c)(6)(iii)(B) and (C). 
However, we decline to revise the rule to provide the regulatory 
authority with the discretion to eliminate some of these requirements 
altogether. These requirements are all necessary to attain the 
appropriate level of detail for establishing the baseline condition on 
the site for future monitoring and to assess reclamation success.
    Final paragraph (c)(6)(v) has been modified to include a 
requirement for assessing the extent and quality of streamside 
wetlands. This requirement applies to all perennial, intermittent, and 
ephemeral streams within the proposed permit area and for all perennial 
and intermittent streams within the adjacent area, and it requires the 
identification of the extent of wetlands adjoining streams and a 
description of the quality of those wetlands. We added this paragraph 
in response to comments from other federal agencies that recommended 
additional protections for wetlands in the final rule because wetlands 
have vegetation not normally associated with other types of habitat. 
This change will assist regulatory authorities in documenting baseline 
conditions with an appropriate level of detail in order to better 
ensure restoration of any wetlands damaged or destroyed by mining in or 
near streams. This assessment requirement is consistent with 515(b)(19) 
of SMCRA \359\ which requires establishment of ``a diverse, effective, 
and permanent vegetative cover of the same seasonal variety native to 
the area of land to be affected and capable of self-regeneration and 
plant succession at least equal in extent of cover to the natural 
vegetation of the area.''
---------------------------------------------------------------------------

    \359\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    In the proposed rule, paragraph (e) contained the requirements 
related to the assessment of the biological condition of streams. In 
the final rule, we revised these requirements and moved them to 
paragraphs (c)(6)(vi) and (vii). As finalized, an assessment of the 
biological condition is required for each perennial stream within the 
proposed permit area and within the adjacent area that could be 
affected by the proposed operation. For intermittent streams, the 
biological condition assessment requirements apply to each intermittent 
stream within the proposed permit area and within the adjacent area 
that could be affected by the proposed operation, but only if a 
scientifically defensible bioassessment protocol has been established 
to assess intermittent streams in the state or region in which the 
stream is located. Under the rule finalized today, we have eliminated 
the requirement to assess the biological condition of all ephemeral 
streams and those intermittent streams in states or regions in which 
there are no established scientifically defensible bioassessment 
protocols available; these changes will be discussed in more detail 
below.
    Many commenters opposed the proposed requirements for assessing 
biological condition because of the alleged limited applicability of 
these provisions within semi-arid and arid regions. As support, these 
commenters noted that the preamble to the proposed rule only discusses 
evidence supporting these requirements with examples from West Virginia 
and other areas with 26 or more inches of average precipitation per 
year. In addition, the proposed rule required the use of a 
bioassessment protocol for all stream types, which many commenters 
alleged would have very little value because of a lack of baseline 
studies to use as a reference. They also noted that natural stream 
conditions are highly variable in arid and semi-arid areas both 
aerially and from stream to stream, and this makes it difficult to 
determine a mine's impacts on the biological condition of streams.
    We agree with these commenters in part and, as discussed below, 
have removed provisions requiring the determination of the biological 
condition of all ephemeral streams and those intermittent streams 
without established scientifically defensible bioassessment protocols 
within the state or region where the proposed mining will occur. 
However, we disagree with these commenters in other respects. Arid and 
semi-arid states across the United States have scientifically 
defensible bioassessment protocols for perennial streams and/or 
intermittent streams that have been established by Clean Water Act 
authorities and these protocols consider geographic and annual 
variation of macroinvertebrate populations. In their comments, several 
SMCRA regulatory authorities in the western states provided evidence of 
rigorous protocols for determining the biological condition of 
perennial streams that are already in place.\360\ Also, the U.S. 
Environmental Protection Agency has established a scientifically 
defensible bioassessment protocol and accompanying indices that are 
valid on all perennial streams within the 48 conterminous states,\361\ 
further supporting the requirement of sampling protocols and indices in 
perennial streams.\362\ The ability to obtain information through 
bioassessment protocols is currently available on national, regional, 
and state levels and the ability to establish effective baseline 
information on all perennial streams, no matter the size, habitat type, 
or vegetative cover is attainable using the best technology currently 
available.

[[Page 93167]]

Some commenters recommended that we use biological assessments that 
focus on terrestrial productivity to assess the biological condition of 
streams, such as yield in pounds per acre, percent groundcover, stems 
per acre, tree diameter at breast height, livestock average daily 
gains, and species frequency. We disagree because these assessments do 
not assess the aquatic biota as accurately as the bioassessment 
protocols we are requiring in the final rule and, thus, are not the 
best technology currently available to assess the effects of mining on 
perennial streams.
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    \360\ See Arizona Department of Environmental Quality. 
Implementation Procedures For the Narrative Biocriteria Standard. 
(2015); Colorado Dep't. of Pub. Health and Env't. Water Quality 
Control Div.--Monitoring Unit. Development of Biological Assessment 
Tools for Colorado; M. Tepley, Montana Rivers and Streams 
Assessment. Cramer Fish Sciences, Lacey Office, (2013); Utah Dep't. 
of Envtl. Quality, Div. of Water Quality. 2014. Utah Comprehensive 
Assessment of Stream Ecosystems; E.G. Hargett, The Wyoming Stream 
Integrity Index (WSII)--Multimetric Indices for Assessment of 
Wadeable Streams and Large Rivers in Wyoming. Wyoming Dep't. of 
Envtl. Quality Water Quality Div. document #11-0787, (2011); U.S. 
Envtl. Prot. Agency, Information on Bioassessment and Biocriteria 
Programs from Streams and Wadeable Rivers. https://www.epa.gov/wqc/information-bioassessment-and-biocriteria-programs-streams-and-wadeable-rivers (last accessed Oct. 21, 2016).
    \361\ For the 48 conterminous states, U.S. Envtl. Prot. Agency, 
National Rivers and Streams Assessment: Field Operations Manual. 
EPA-841-B-07-009. Washington, DC (2007).
    \362\ Alaska is scheduled to have these protocols and indices 
established in 2020. Further, ``AKMAP statistical surveys can 
provide baseline information for protection and restoration 
actions.'' See, Alaska Dep't. of Envtl. Conservation. Alaska Clean 
Water Five-Year Strategic Plan Fiscal Years 2016-2020, p. 5 (2015).
---------------------------------------------------------------------------

    One commenter requested we remove all bioassessment protocols 
because streams were already being reclaimed successfully. We disagree. 
There are documented instances of streams adversely affected by mining 
across the United States. In addition, these baseline assessments are 
not solely designed to monitor the reclamation of streams, but also to 
monitor streams that are not approved for disturbance but may be 
impacted by the operation. Across all coal bearing regions, since the 
approval of state run regulatory authorities, examples of surface water 
impacts have been identified.\363\ While many of these effects are 
minor and moderate, they also involve off-site impacts. Other impacts 
are not currently detected, and this rule is designed to improve the 
baseline analysis to further detect the potential for offsite impacts, 
to detect unplanned impacts, and to minimize these off-site impacts 
using the best technology currently available. We are retaining these 
requirements. These baseline assessments of the biological condition of 
streams where scientifically defensible protocols exist will allow for 
appropriate stream assessment and monitoring and will result in 
minimization of effects to fish, wildlife, and environmental resources 
consistent with the requirements of section 515(b)(24) of SMCRA.\364\
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    \363\ Representative sample of SMCRA regulatory authority Notice 
of Violations across the United States.
    \364\ 30 U.S.C. 1265(b)(24).
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    Some commenters also recommended that we eliminate the requirement 
for bioassessments of every perennial stream potentially affected by 
the proposed operation. These commenters suggested we use a 
representative stream sample or solely streams from adjacent areas, 
which they claim would suffice to assess baseline condition and monitor 
reclamation within the proposed permit. We disagree. First, because 
offsite impacts are to be avoided or minimized when they do occur, all 
streams within the influence of the operation need an appropriate level 
of knowledge specific to each stream to be able to comprehensively 
measure these offsite impacts (if they occur). And because these 
offsite impacts may encompass many different types of effects (e.g., 
physical, chemical, biological, human-related) to surface waters off of 
the permitted site at any time or in any location, this level of detail 
using the best technology currently available is warranted. Second, 
small perennial streams that occur within the proposed permitted site 
may differ in physical, chemical, and biotic attributes from those 
adjacent to the proposed permitted site. If perennial streams from 
areas adjacent to the permit are used for this baseline survey, the 
attributes and biological assemblages that contain localized and unique 
species within the permit may be missed.\365\ Assessing only a subset 
of perennial streams within the proposed site may also lose this type 
of biological resolution and is not appropriate when SMCRA requires the 
operation to minimize effects to water quality and quantity as required 
by section 515(b)(10) of SMCRA,\366\ and to fish and wildlife and 
related environmental values as required by 515(b)(24) of SMCRA.\367\ 
In summary, the perennial streams under these requirements may contain 
rare, sensitive, and important habitat and small populations of rare 
and sensitive organisms that are not likely to be comprehensively 
cataloged without thoroughly sampling the potential permitted site. 
Third, it is incumbent that the permittee provide assurance that 
effects of the operation on federal, state, and tribal-listed 
threatened and endangered species have been properly assessed.
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    \365\ Judy L. Meyer, et al., The Contribution of Headwater 
Streams to Biodiversity in River Networks, Journal of the American 
Water Resources Association (JAWRA) 43(1):86-103. DOI: 10.1111/
j.1752-1688.2007.00008 (2007).
    \366\ 30 U.S.C. 1265(b)(10).
    \367\ Id. at 1265(b)(24).
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    Another reason the commenters offered for deleting these mandatory 
bioassessments was that these bioassessment protocols have historically 
been conducted for a different purpose: As part of a suite of metrics 
(i.e., scientifically defensible data) used and not a stand-alone tool 
to characterize the nature of an ecosystem or community. We did not 
alter the rule in response to these comments and are retaining these 
bioassessments as specified in final paragraph (c)(vii). The U.S. 
Environmental Protection Agency first established the policy that 
scientifically defensible biocriteria values may be used independently 
to provide conclusive evidence that water quality standards are or are 
not attained.\368\ But more importantly, as used in this rule, 
bioassessments (using at a minimum, macroinvertebrate sampling) are 
part of a suite of scientifically defensible data that will be used. 
These bioassessments also include physical, chemical, and other 
biological attribute measurements to determine baseline condition and 
to monitor the operation through final bond release. In addition, 
regulatory authorities routinely use bioassessment protocols for 
practical and compliance purposes, including total maximum daily load 
development and monitoring, measuring national pollutant discharge 
elimination system permit compliance, analyzing and establishing best 
practices for restoration, and measuring the progress of stream 
restoration. Similar to our discussion in the preamble to the proposed 
rule, we anticipate that the SMCRA regulatory authority, with 
assistance from the appropriate Clean Water Act agencies, will define 
the range of values required to support each designated use and 
premining use of the stream.\369\ The SMCRA and the Clean Water Act 
authorities have the knowledge and history to provide permit applicants 
with a robust protocol that will define the range of values required to 
support each existing and applicable Clean Water Act water quality 
standards of the stream in question. The final rule simply codifies a 
minimum requirement to incorporate within this protocol a measurement 
of aquatic organisms (benthic macroinvertebrates), a calculated values 
for habitat (including vegetation), and assessments of water quality 
and quantity. The baseline biological, physical, and chemical 
assessments of these streams will also allow the regulatory authority 
to provide guidance to operators on ways to prevent material damage to 
the hydrologic balance outside of the permitted area because these 
baseline measurements can be compared with the measurements needed to 
support each designated use and premining use of the stream in 
question. The comparison between the values, including index values, 
and the baseline measurements is based upon substantial studies and 
scientific support, and it is appropriate to conduct monitoring of

[[Page 93168]]

streams potentially impacted by coal mining activities using these 
protocols.
---------------------------------------------------------------------------

    \368\ T.T. Davies, Memorandum to Water Management Division 
Directors, Transmittal of final policy on biological assessments and 
criteria. U.S. Envtl. Prot. Agency. Washington, DC (June 19, 1991).
    \369\ 80 FR 44436, 44475 (Jul. 27, 2015).
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    One commenter requested that we address whether the biological 
assessments currently employed for Clean Water Act section 404 \370\ 
permitting will suffice. If the assessment includes all of the 
characteristics required in this final rule and its implementing 
regulations, the Clean Water Act section 404 assessment will suffice. 
This commenter was also concerned that these bioassessment requirements 
could result in needless data duplication that may delay permitting 
issuance and potentially conflict with the Clean Water Act and the U.S. 
Army Corps of Engineers requirements. We understand this concern. Final 
Sec.  780.19(h) requires coordination between the SMCRA regulatory 
authority and the Clean Water Act authority. Coordination may include 
baseline data collection points and parameters and the sharing of data 
to the extent practicable and consistent with each agency's mission, 
statutory requirements, and implementing regulations. This will 
minimize delays, data duplication, and conflicting requests.
---------------------------------------------------------------------------

    \370\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    Commenters also voiced concern over the quality control that the 
regulatory authority would use for these bioassessments. These 
commenters indicated that strict quality controls to accurately 
determine the perennial stream condition would be difficult to execute 
and requested that the regulatory authority be provided discretion to 
either modify or eliminate bioassessment protocols. One commenter 
specified that the regulatory authority should be able to use its 
discretion to grant waivers of this requirement to protect the safety 
of the individuals performing the studies. We disagree that quality 
control for these bioassessments would be too difficult to execute. We 
also decline to make these bioassessments optional. These bioassessment 
protocols, both at the state and federal level are designed to address 
quality control throughout the design, data collection, and analysis 
phases. These protocols were developed specifically to consider the 
safety of those performing the protocols and we anticipate that the 
bioassessments will be conducted consistent with the safety of those 
performing the assessments. If a state protocol is not available that 
includes these quality and safety procedures, the ``National Rivers and 
Streams Assessment 2013/2014 Field Operations Manual for Wadeable 
Streams'' includes quality assurance measures in field and laboratory 
design and operations and statistical analysis techniques to provide 
comprehensive data integrity. This protocol also includes a section 
that describes the recommended training, communications, safety 
considerations, safety equipment and facilities, and safety guidelines 
for field operations. This protocol addresses quality assurance and 
quality control issues and is valid throughout the 48 conterminous 
states; therefore, it may be used to assess and monitor SMCRA-permitted 
operations. Final Sec.  780.19(c)(6)(vii)(E) includes a requirement to 
describe the technical elements of the bioassessment protocol, 
including, but not limited to sampling methods, sampling gear, index 
period, sample processing and analysis, and quality assurance/quality 
control procedures; an appropriate, scientifically defensible 
bioassessment would have this information readily available.
    Commenters also expressed concern with the proposed rule's reliance 
on the information created by the bioassessments. Specifically, they 
noted that the proposed rule did not account for changes in 
biodiversity of a perennial stream or other surface waters caused by 
outside sources during the life of the permit. We disagree. Final Sec.  
780.19(c)(4)(i) requires sampling upgradient and downgradient of the 
proposed permit area in each perennial and intermittent stream within 
the proposed permit and adjacent areas. This sampling array will 
account for potential effects from outside sources. In addition, the 
protocols and indices we are requiring have been established while 
considering natural spatial and annual variation. Determining the 
effects of human activity in streams involves the establishment of 
reference streams and conditions. This process includes the sampling of 
aquatic biota and the habitat (e.g., geography, altitude, vegetation, 
attributes of the physical stream channel and surrounding area, and 
water chemistry) in and adjacent to the stream. These data are 
collected to determine reference and non-reference streams and produce 
consistent results. Once these reference streams and conditions are 
established, index thresholds are then established, and these will be 
used to make assessments and monitor streams. This is also mainly an 
iterative process, where reference streams and conditions are sampled, 
resampled, and reanalyzed, and the index may be refined as time passes 
and more data are collected. These metrics are also ecologically 
relevant to the biological assemblage or community under study and are 
sensitive to stressors beyond the permitted site, and provide a 
response that can be discriminated from natural variation. Again, each 
permit can rely on the National Rivers and Streams Assessment for 
streams to provide the minimum requirements found in this final rule 
because this assessment is scientifically defensible in the 48 
conterminous states.
    Several commenters opposed our use of bioassessment indices as one 
way to describe ecological function. They noted that well-respected 
aquatic ecologists, including one ecologist we have cited and relied 
upon within the proposed rule, have not been able to agree on metrics 
of ecological function in stream networks, let alone on the ability to 
restore them. As one example, commenters referred to the Maryland 
Stream Restoration Association, and these commenters asserted that this 
association has not yet agreed on such metrics for streams in the 
Appalachian counties of Maryland. We attempted to corroborate the 
commenters' assertion, but we could not find a source for this 
disagreement on the metrics for the Appalachian counties of Maryland. 
We did, however, discover that the official Web site of the Maryland 
Stream Restoration Association includes at least one reference to a 
protocol for adequate stream restoration within the Chesapeake Bay 
watershed, which includes many references and examples of using 
biological indices to measure ecological function on restoration 
projects.\371\ Additionally, the Maryland Department of Natural 
Resources uses bioassessment protocols (with identification to the 
genus level for regulatory actions) for restoration targeting and 
measuring restoration progress for Maryland's wadeable streams.\372\ 
These Maryland Department of Natural Resources references further 
support our requirement for use of scientifically defensible 
bioassessments because they demonstrate that adequate protocols can be, 
and have been, developed for the measurement of ecological function. 
Ecological function is more thoroughly addressed in our preamble 
discussion of our definition of that term in Sec.  701.5 above.
---------------------------------------------------------------------------

    \371\ Joe Berg, et al., Recommendations of the Expert Panel to 
Define Removal Rates for Individual Stream Restoration Projects: 
FINAL REPORT, Urban Stormwater Work Group Chesapeake Bay Partnership 
(2012).
    \372\ Maryland Biological Assessment Methodology for Non-Tidal 
Wadeable Streams, Last Revised on June 4, 2014.
---------------------------------------------------------------------------

    Several commenters stated that there are other scientifically 
defensible bioassessment protocols that could be

[[Page 93169]]

used to assess and monitor the biological condition of streams and 
recommended that we allow other bioassessment protocols and the 
multimetric bioassessments that were in the proposed rule. We agree 
with this recommendation. Further, we recognize that many states are 
not currently using multimetric macroinvertebrate sampling that use an 
index of biological integrity. Therefore, we have revised the final 
rule in response to these comments to allow for the use of other 
scientifically defensible bioassessment protocols as long as specific 
minimum requirements are satisfied. In paragraphs (c)(vii)(A) through 
(D) of the final rule we clarify the minimum requirements for 
scientifically defensible bioassessment protocols. This includes a 
measurement that is based upon an appropriate array of aquatic 
organisms, that at a minimum includes benthic macroinvertebrates, 
identified to the genus level where possible, otherwise to the lowest 
practical taxonomic level. We retain the minimum requirements to sample 
benthic macroinvertebrates as they are particularly useful for 
assessing the biological condition of the stream because they are 
diverse, abundant, sensitive to environmental stress, relatively 
immobile (compared to fish), and many macroinvertebrates have 
relatively long life cycles of at least a year. These characteristics 
of macroinvertebrates integrate the effects of environmental stressors 
over time and therefore are good indicators of local conditions as well 
as upstream land and water resource conditions. We do not require fish 
sampling and other organism samplings (such as periphyton) in our final 
rule; however, regulatory authorities have the discretion to require 
other sampling protocols. Additionally, the protocol must result in the 
calculation of index values for both stream habitat and aquatic biota 
based on the reference condition. We included the terms ``stream'' 
before habitat and ``aquatic biota based on the reference condition'' 
instead of only macroinvertebrates as proposed, as these more 
appropriately describe the requirements due to the inclusion of other 
types of bioassessments other than multimetric indices that use an 
index of biological integrity. We revised final paragraph (c)(vii)(C) 
and added paragraphs (c)(vii)(D) and (E) to provide clarity with 
respect to the appropriate final characteristics of the required 
bioassessment protocols. Final paragraph (c)(vii)(D) requires the 
protocol to include a quantitative assessment of in-stream and riparian 
habitat condition. Final paragraph (c)(vii)(E) requires the operator to 
describe the technical elements of the protocols, including, but not 
limited to; sampling methods, sampling gear, index period, sample 
processing and analysis, and quality assurance/quality control 
procedures. These two requirements are included to provide sufficient 
information to the regulatory authority that the bioassessment to be 
used will be appropriate and scientifically defensible; for 
scientifically defensible bioassessments, this information should be 
readily available. These measures are supported by current science and 
are also in response to comments described above regarding the concern 
over the bioassessment protocols containing the proper quality control 
and safety procedures. A publication by the U.S. Environmental 
Protection Agency in 2013 identified 13 technical elements of 
biological assessment programs and included recommendations on how to 
more precisely define aquatic life uses and approaches for deriving 
biological criteria, monitoring biological condition, supporting causal 
analysis, and developing-stressor response relationships.\373\ This 
publication serves as resource to determine the scientific rigor of 
potential bioassessment protocols to be used.\374\
---------------------------------------------------------------------------

    \373\ U.S. Envtl. Prot. Agency, Biological Assessment Program 
Review: Assessing Level of Technical Rigor to Support Water Quality 
Management. Washington, DC, EPA 820-R-13-001 (2012).
    \374\ J.E., Allende, Rigor: The essence of scientific work, 
Elec. Journal of Biotechnology, 7(1), (2004).
---------------------------------------------------------------------------

    Many commenters supported biological condition assessments for all 
streams and other commenters supported only including them for 
intermittent and perennial streams. As a result of comments we received 
and our reanalysis of the proposed rule's biological condition 
requirements, we removed the provisions of proposed paragraph (e) that 
would have assessed the biological condition of all intermittent 
streams and a representative sample of ephemeral streams in those 
states or regions in which there are currently no established 
scientifically defensible bioassessment protocols available. For all 
intermittent and some representative number of ephemeral streams, the 
proposed rule would have required adherence to a multimetric 
bioassessment protocol.\375\ Many commenters correctly noted that it is 
currently impractical to require the assessment of the biological 
condition of ephemeral streams and of those intermittent streams in 
states or regions in which there are no established bioassessment 
protocols available. Generally, the best technology currently available 
in many areas for these types of streams does not include bioassessment 
protocols because application of those protocols would not produce 
reliable, substantive information that the regulatory authority would 
be able to use to assess stream function or to monitor reclamation 
success.
---------------------------------------------------------------------------

    \375\ 33 U.S.C. 1251(a) or 1313(d).
---------------------------------------------------------------------------

    Therefore, we did not include these requirements in the final rule. 
However, these intermittent and ephemeral streams represent a large 
proportion of the stream lengths within watersheds, especially in semi-
arid and arid environments, and need to be assessed with a degree of 
scientific rigor. Current science provides examples of watershed 
management and resource protection only having limited success if non-
perennial streams are excluded from assessments and reclamation 
activities.\376\ One reason for the importance of these streams is that 
their natural, seasonal flow provides significant exports to the 
downstream habitat such as nutrients and processed organic matter.\377\ 
In addition, these small streams and their associated adjacent 
vegetative communities can differ widely in physical, chemical, and 
biotic attributes and provide habitats for a range of species that may 
not be able to persist in perennial stream reaches due to competition, 
predation, invasive species, or abiotic factors.\378\ Permanent 
residents as well as migrants travel through ephemeral and intermittent 
stream channels at particular seasons or life stages, and this movement 
links headwaters with downstream and adjacent terrestrial 
ecosystems.\379\ Therefore, although we are not requiring the use of a 
scientifically defensible bioassessment protocol for these streams if 
one does not currently exist, final paragraphs (c)(6)(ii) and (iii) 
require the assessment of the physical structure of the channel and a 
habitat assessment of the vegetative communities within and adjacent to 
ephemeral streams and those

[[Page 93170]]

intermittent streams in states or regions in which there are no 
scientifically defensible bioassessment protocols. Without established 
scientifically defensible bioassessment protocols, these assessments of 
the physical structure of the channel and an assessment of the 
vegetative communities are part of the best technology currently 
available to describe the streams and provide the regulatory authority 
with significant, useful, and scientifically defensible information to 
determine how to minimize the operations' effects to fish, wildlife, 
and related environmental resources consistent with section 515(b)(24) 
of SMCRA.\380\ These requirements are consistent with proposed 
paragraphs (i) and (ii) and are discussed in further detail above.
---------------------------------------------------------------------------

    \376\ Catherine Leigh, et al., Ecological research and 
management of intermittent rivers: an historical review and future 
directions. Freshwater Biology (2015).
    \377\ Raphael D. Mazor, et al. Integrating intermittent streams 
into watershed assessments: Applicability of an index of biotic 
integrity. Freshwater Science, pgs. 459-474 (2011).
    \378\ Emily S. Bernhardt and Margaret Palmer. The environmental 
costs of mountaintop mining valley fill operations for aquatic 
ecosystems of the Central Appalachians. Annals of the New York 
Academy of Sciences, 1223.1: 39-57 (2011).
    \379\ Judy L. Meyer, et al. The Contribution of Headwater 
Streams to Biodiversity in River Networks. Journal of the American 
Water Resources Association (JAWRA) 43(1):86-103. DOI: 10.1111/
j.1752-1688.2007.00008.x (2007).
    \380\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    In addition to the requirements of final paragraphs (c)(6)(ii) and 
(ii), final paragraph (c)(6)(viii) requires, at the time of 
application, a description of the results of a one-time sampling of the 
aquatic biota of each intermittent stream segment in states or regions 
in which there are no established bioassessment protocols available. 
Final paragraph (viii) requires that these one-time sampling events use 
a sampling method or protocol established or endorsed by an agency 
responsible for implementing the Clean Water Act, 33 U.S.C. 1251 et 
seq.\381\ Although indices for the bioassessment of intermittent 
streams are not currently widely available, effective and 
scientifically defensible protocols exist nationwide (the best current 
technology also includes the proper Quality Assurance and Quality 
Control) to sample intermittent streams for the identification and 
cataloging of the biota found within streams. The best technology 
currently available for this one time sampling event are frequently the 
protocols for the bioassessments described above for perennial and some 
intermittent streams, but without the further scientific analysis and 
determination of index values. These one-time sampling events must also 
possess the same quality control and safety considerations as the 
scientifically defensible bioassessment protocols. As an example, the 
``National Rivers and Streams Assessment 2013-2014 Field Operations 
Manual for Wadeable Streams'' published by the U.S. Environmental 
Protection Agency serves as a reliable national resource for sampling 
streams, including intermittent streams. Of critical importance to the 
sampling of intermittent streams is the correct timing of sampling. The 
protocol in the National Rivers and Streams Assessment 2013-2014 Field 
Operations Manual for Wadeable Streams requires greater than 50 percent 
water throughout the channel reach to execute sampling. The manual also 
advises against sampling when precipitation results in streamflow above 
baseflow. The appropriate time to sample intermittent streams is 
normally narrower than appropriate sampling of perennial streams, 
simply because of the amount of time when proper water flow exists. 
When conducted during the correct time of year, this one-time sample 
will provide the regulatory authority with a description of the biota 
within these intermittent streams and provide significant and useful 
information to determine how best to minimize the adverse impacts of 
the operation on fish, wildlife, and related environmental resources 
consistent with section 515(b)(24) of SMCRA.\382\ These assessments 
will also help the regulatory authority determine if any species of 
special concern are present within these stream reaches. These 
assessments are not intended to be used for analyses other than to 
identify those species that are found within these streams and to aid 
in identification of the types of communities present (e.g., coldwater 
stream community).
---------------------------------------------------------------------------

    \381\ For example, the U.S. Envtl. Prot. Agency has a sampling 
protocol applicable across the nation. National Rivers and Streams 
Assessment: Field Operations Manual. (2007) EPA-841-B-07-009. U.S. 
Envtl. Prot. Agency, Washington, DC. This is just one example, more 
regional specific protocols may exist.
    \382\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Other commenters requested we include an addition to the rule that 
requires a strict adherence to the approved bioassessment protocol 
(e.g., sampling gear, sample index period, sample anniversary dates, 
and sample processing methods). This commenter also voiced a concern 
that sample periods for small perennial streams (those most likely to 
be directly affected by mining activities) are shorter than those for 
larger perennial streams. According to the commenter, we should 
prescribe sampling times that avoid early season and late-summer index 
periods because these streams are typically hydrologically stressed and 
they tend to score poorly (e.g., reduced species diversity and 
richness) in many indices during these times. We decline to adopt this 
recommendation because the protocols, requirements, and updates 
incorporated into the final rule discussed above address this concern. 
For example, the U.S. EPA National Rivers and Streams Assessment 2013-
2014: Field Operations Manual (Wadeable Streams) prohibits sampling of 
sites with water in less than 50% of the reach length. It also 
specifies that all sites must be sampled during base flow conditions. 
In addition, the coordination with the appropriate Clean Water Act 
authorities will help establish the appropriate sampling dates for the 
streams in question.
    We received support for the identification of macroinvertebrates to 
the genus level within proposed paragraph (e)(2)(i), now included 
within final paragraphs (c)(6)(vii)(A) and (c)(6)(viii)(B), along with 
an assessment of every stream segment potentially affected by the 
permit. However, one commenter wanted us to specifically mention the 
limitations of these methods for assessing impacts to species sensitive 
to water-quality degradation, including federally-listed threatened and 
endangered species. Several supporters of the proposed rule also 
requested we require more sampling. For example, commenters suggested 
sampling fish to the species level, bird surveys, and hyporheic zone 
assessments in addition to macroinvertebrate data collection. Final 
paragraph (c)(6) sets out the minimum sampling requirements. We decline 
to add other requirements. The regulatory authority always has the 
discretion to require additional measures as appropriate to their 
region or to the particular permit under consideration.
    Other commenters opposed the requirement in final paragraph 
(c)(viii)(A) to identify macroinvertebrates to the genus level. These 
commenters alleged that such a requirement is unnecessary, too 
expensive, and family level identification is preferred and already 
performing adequately. We disagree. While genus-level identifications 
are more expensive to process than family-level identifications, they 
are also the best technology currently available and allow for 
increased specificity, or degree of detail, of the biology that exists 
in streams. Further, most scientifically defensible protocols now 
require genus-level identification in their bioassessments when 
possible. Also, many studies show that genus-level identification 
provides both a greater degree of confidence on the condition of 
streams and a certain degree of knowledge about what types of stressors 
are affecting streams if they are undergoing stress. In the vast 
majority of situations, these genus-level identification tools, when 
compared to family level identification tools, detect smaller 
differences in water quality and are therefore preferred, not only for 
assessment purposes but for monitoring

[[Page 93171]]

purposes.\383\ We also recognize that there may be instances where it 
is not possible to identify to genus and an identification is needed 
due to a small sample size or other limiting factors, such as 
situations when an identification is needed and only a partial body is 
available for identification, the specimen is not the correct sex, or 
not within the appropriate life stage to identify to genus level. 
Therefore, final paragraph (c)(6)(viii)(B) now states that the 
applicant must identify benthic macroinvertebrates to the genus level 
where possible, otherwise to the lowest practical taxonomic level. This 
provision also allows for higher-level identifications where 
classifications of taxa such as flatworms, water mites, and 
oligochaetes are not practicable. In most instances, identification to 
the genus level is appropriate for samples in all life stages.
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    \383\ D.R. Lenat and V.H. Resh, Taxonomy and stream ecology--the 
benefits of genus-and species-level identifications. Journal of the 
North American Benthological Society, 20(2), pp. 287-298 (2011).
---------------------------------------------------------------------------

    One commenter opposed our use of extrapolated measurements within 
the bioassessment protocols. This commenter opposed these by stating 
that in other sections of the proposed rule we will no longer allow 
extrapolated data because our past experience indicates that 
extrapolation is not a reliably accurate method to document and 
describe seasonal variation in chemical parameters; therefore this rule 
should be consistent and not use an extrapolated biological index value 
based on arbitrarily developed correlation methods to establish a 
standard for reclamation success. We disagree. We have experienced 
inaccuracies and other problems with the extrapolation of seasonal 
variation in chemical parameters while gathering baseline data and it 
is an established problem, while the extrapolation of biological 
condition data is a standard that has been produced and replicated 
within scientifically defensible bioassessment protocols.
    A regulatory authority commenter indicated that the requirement in 
proposed paragraph (e)(2), now final paragraph (c)(6)(vii), to use a 
bioassessment method that is approved by the state Clean Water Act 
regulatory authority appears to be in direct conflict with the state's 
water quality laws and standards. The commenter opined that this 
requirement places an additional burden on the state regulatory 
authority to review, approve, and validate bioassessment protocols when 
a state may not have or use numerical bioassessment methods. We 
disagree. This requirement harmonizes a state's Clean Water Act 
bioassessment methods and the SMCRA requirements found in paragraph 
(c). Moreover, final paragraph (c)(6)(vii) requires applicants to use 
either a method approved by the state Clean Water Act authority or 
``other scientifically-defensible bioassessment protocols accepted by 
agencies responsible for implementing the Clean Water Act, 33 U.S.C. 
1251 et seq., modified as necessary to meet the following 
requirements''. Thus, a SMCRA regulatory authority in a state without 
existing bioassessment methods approved by a state or tribal Clean 
Water Act authority must either develop a method acceptable to the 
Clean Water Act authority or use another scientifically defensible 
bioassessment protocol accepted by agencies responsible for 
implementing the Clean Water Act, such as the U.S. Environmental 
Protection Agency's National River and Streams Assessment for Wadeable 
Streams.
    The commenter also maintained that the use of bioassessments and 
correlation index values are not reasonable for isolated locations in 
streams that have highly variable flow conditions. In response, we note 
that requirement for biological condition data in paragraph (c)(6) only 
applies to (1) all perennial streams and (2) any intermittent streams 
in a state or region with a scientifically defensible bioassessment 
method. If no bioassessment methods exist for intermittent streams, 
then the requirements to obtain biological condition data included in 
paragraph (c)(6) applies only to perennial streams on the permitted and 
adjacent area. We are also not aware of any type of situation the 
commenter describes in which hydrologic conditions are limited to such 
a small area and to such few streams that development of biological and 
correlation index values is precluded.\384\ Hydrologic data may have 
widely variable temporal and spatial characteristics, but it typically 
forms patterns that cover areas large enough to enable development of 
scientifically defensible bioassessment protocols.
---------------------------------------------------------------------------

    \384\ Again, we reference the U.S. Entl. Prot. Agency's National 
Rivers and Stream Assessment as a scientifically defensible 
bioassessment for all perennial streams within the forty-eight 
conterminous states.
---------------------------------------------------------------------------

    We sought comments within the proposed rule at 780.19(e) on the 
effectiveness of using index scores from bioassessment protocols to 
ascertain impacts on existing, reasonably foreseeable, or designated 
uses. Many commenters supported their use while many claimed they were 
not effective. We also invited commenters to suggest other approaches 
that may be equally or more effective. We received several suggestions, 
including: Solely qualitative measures; yield in pounds per acre, 
percent groundcover, stems per acre, diameter at breast height, 
livestock average daily gains, and species frequency; a standard that 
simply says that there is no material damage to the hydrologic balance 
outside the permit area if there is no change in designated use of the 
receiving stream as described by the Clean Water Act regulatory 
authority attributable to surface coal mining; Water Quality Standards 
and Physical Habitat scoring are both more dependable measures with 
replicable results that are not subject to as many variables both in 
the environment and sample methodology; standardized qualitative 
assessments for intermittent streams; premining and postmining 
qualitative biological and habitat assessments made at the appropriate 
time to determine if and where macroinvertebrates, fish, or amphibians 
are present in intermittent streams. Although we appreciate the 
suggestions, these alternatives do not adequately assess the biological 
functions of streams as accurately as bioassessment protocols described 
in the final rule and are not the best technology currently available.
Final Paragraph (d): Additional Information for Discharges From 
Previous Coal Mining Operations
    A commenter from a regulatory agency suggested that we define the 
term ``discharge.'' We agree that this term could be clarified and have 
included the modifier ``point-source'' before discharge in the final 
rule. In this section, we also removed the requirement to obtain 
biological condition information because it was redundant with Sec.  
780.19(c)(6), which requires essentially the same information.
    Several commenters suggested that a single, low-flow sample 
representing baseline for each mine discharge located over and adjacent 
to a mine site does not make sense in light of the requirement for 
twelve evenly-spaced monthly baseline samples in paragraphs (b) and (c) 
to characterize groundwater and surface water baseline conditions. Some 
commenters suggested that no sample was necessary for the discharges 
from previous operations due to the volume of sampling required for 
surface water and groundwater characterization. We understand the 
seeming contradiction in sampling frequency

[[Page 93172]]

between surface water and groundwater and mine discharges, but these 
regulations are an adequate basis to establish the minimum regulatory 
authority standards. The low flow period is the most critical period to 
understand mine discharges because it is at that period when the 
concentrations of water quality parameters are the highest in both the 
discharge and receiving streams. Thus, a sample collected during this 
time is most likely to reveal potential issues as compared to samples 
taken during higher flows when concentrations are diluted. Of course, 
state regulatory authorities have the discretion to require whatever 
sampling frequencies for discharges that they consider necessary to 
make technical assessments and associated findings for permits within 
their jurisdiction. For the reasons identified above, we are not 
revising the sampling requirements for mine discharges.
    One commenter suggested that the language pertaining to the 
required sampling for previous mine operations was imprecise and 
further questioned whether abandoned and permitted discharges were 
required to be sampled. The final rule language requires sampling of 
all discharges from abandoned mine sites found on and adjacent to a 
proposed mining operation that might have a hydrologic connection to 
the operation. This requirement provides information that both the 
regulatory authority and applicant will need to assess whether any 
adverse impacts from the discharges within and adjacent to the 
permitted area are a result of the current mining operation. Without 
this information, the operator and regulatory authority are less likely 
to detect any changes in water quality and/or flow from these previous 
mine discharges which may be linked to the proposed operation. For all 
of these reasons, we decline to change the final rule language 
regarding data requirements for pre-existing mine discharges.
    A commenter opined that the extra monitoring and parameters 
proposed in Sec. Sec.  780.19(d) and 784.19(d) are a disincentive for 
remining. We understand the concern with respect to remining. However, 
adequate baseline characterization is more important in remining 
situations, especially with pre-existing discharges. Section 
780.28(e)(3)(i)(D) requires that, when mining through a degraded 
stream, the mining ``[w]ill not further degrade the form, hydrological 
function, biological condition, or ecological function of the existing 
stream.'' Thus, adequate baseline characterization is vital for 
determining if a remining operation is further degrading the form, 
hydrological function, biological condition, or ecological function of 
an existing stream segment.
Final Paragraph (e): Geologic Information
    Some commenters suggested that the requirement at proposed 
paragraph (f)(3)(iii), now paragraph (e)(3), to obtain pyritic sulfur 
and alkalinity information should only apply to regions where it is 
necessary to acquire such data to prevent acid mine drainage. Under 
paragraph (e)(5), the regulatory authority has the discretion to waive 
the pyritic sulfur and alkalinity data if information exists to support 
the regulatory authority's written finding. We note, however, that we 
are unclear how not collecting the alkalinity and pyritic sulfur is 
beneficial in any manner. The applicant must conduct an analysis of the 
geochemical nature of the strata to be removed and assess the net 
neutralization potential of the entire overburden column. To do so, 
every stratum needs to be tested, its net neutralization potential 
calculated, and an analysis made of the overall net neutralization of 
all the overburden on the site. Only in cases where the strata can be 
shown through existing information to historically produce net alkaline 
effluent would it make sense to waive this requirement.
    Another commenter requested that we define ``other parameters that 
may influence the required reclamation.'' In response, we note that 
such factors may include the weather regime, availability of water, 
placement of overburden containing sulfur, and vegetation requirements 
because these factors can significantly affect effluent water quality 
from the reclaimed site.
Final Paragraph (f): Cumulative Impact Area Information
    We received a couple of comments about proposed paragraph (g),\385\ 
now paragraph (f), which addresses cumulative impact area information. 
One commenter claimed that the paragraph requires the characterization 
of ``all'' perennial, intermittent, and ephemeral streams, implying 
there are no limits to what has to be considered when making a 
determination of the cumulative impacts of the proposed operation on 
the surface water and groundwater. The commenter asserted that we 
should use the term ``representative sampling'' and let the regulatory 
authority use their professional judgment on what is appropriate. This 
is a mischaracterization of the proposed rule text; there is no 
language in the paragraph that requires or implies ``all'' streams must 
be characterized. We require the operator to obtain the information 
necessary to assess the impacts of both the proposed operation and all 
anticipated mining on surface-water and groundwater systems in the 
cumulative impact area. Further, nothing in Sec.  780.21 of the 
proposed or final rule, which sets the requirements for the preparation 
and review of the cumulative hydrologic impact assessment, requires or 
implies that ``all'' streams must be characterized to determine the 
cumulative hydrologic impacts. Therefore, the commenter's concerns are 
misplaced, and we have made no changes to the final rule based on this 
comment.
---------------------------------------------------------------------------

    \385\ 80 FR 44436, 44602-44603 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Another commenter pointed out that proposed paragraph (g), now 
final paragraph (f), requires the regulatory authority to obtain all 
hydrologic, geologic, and biologic information necessary to perform the 
cumulative hydrologic impact assessment. They opined that it places an 
extraordinary huge burden on the regulatory authority to obtain all 
this data and this rule appears to require the regulatory authority to 
research proposed cumulative hydrologic impact assessments, when the 
traditional role of the regulatory authority has been to evaluate and 
review permit applications that contain the information. We agree with 
the commenter. We mistakenly stated in the proposed rule that the 
regulatory authority was responsible for obtaining this information. 
The preamble to the previous final rule contains a lengthy discussion 
on this topic, which makes it clear that the applicant is responsible 
for collecting this information. See 48 FR 43970 (Sept. 26, 1983). In 
the final rule, we have corrected this error and changed ``[t]he 
regulatory authority must obtain . . .'' to ``[y]ou must obtain . . .''
    We have also made other changes that clarify our intent and the 
role of the applicant and the regulatory authority. First, in paragraph 
(f)(1), of the final rule, to better conform to the subject of this 
paragraph, we changed the rule text from ``probable cumulative 
hydrologic impacts of the proposed operation . . .'' to ``impacts of 
both the proposed operation . . .'' Second, in paragraph (f)(2), we 
replaced the word ``must'' with ``may'' in the first sentence. This 
change better conforms to the sentence that followed. Third, we 
modified text within paragraph (f)(3) that clarifies the role of the 
regulatory authority and

[[Page 93173]]

complements the changes made in paragraph (f)(1).
Final Paragraph (g): Exception for Operations That Avoid Streams
    This section establishes an exception for operations that avoid 
streams and specifies that the regulatory authority may waive the 
biological condition information requirements of paragraph (c)(6)(vi) 
through (viii) of this section if it is demonstrated, and if the 
regulatory authority finds in writing, that the operation will not: 
Mine through or bury a perennial or intermittent stream; create a 
point-source discharge to any perennial, intermittent, or ephemeral 
stream; or modify the base flow of any perennial or intermittent 
stream. Several commenters supported this proposed section. Other 
commenters requested that we remove the reference to ephemeral streams 
in Sec.  780.19(h)(2), now Sec.  780.19(g)(2). We disagree. Changes to 
the hydrology in ephemeral streams are linked to intermittent and 
perennial streams and must be considered when approving a potential 
exception for collecting baseline condition information.
    Another commenter suggested that we include non-point source 
discharges within this paragraph because there are instances where 
these types of discharges can impact surface waters, potentially 
affecting aquatic environments. We decline to modify the final rule in 
response to this comment because the burden associated with monitoring 
all non-point source discharges into streams may be outweighed by any 
benefit that may be received. Moreover, the surface water monitoring 
requirements, as prescribed by the final rule are adequate to determine 
the quantity and quality of surface water. Other commenters requested 
more guidance on whether stormwater controls and outfalls that 
discharge into ephemeral, intermittent, or perennial streams are 
considered ``point sources'' under this paragraph. Consistent with 
section 502 of the Clean Water Act,\386\ we consider stormwater (not 
including agricultural stormwater) that is discharged by means of any 
discernible, confined and discrete conveyance, including but not 
limited to any pipe, ditch, channel, tunnel, conduit, well, discrete 
fissure, container, or other floating craft into a stream to be a point 
source discharge.
---------------------------------------------------------------------------

    \386\ 33 U.S.C. 1362.
---------------------------------------------------------------------------

    One commenter correctly noted that proposed paragraph (h), now 
paragraph (g) allows the regulatory authority to grant a waiver from 
the requirement to establish baseline conditions in intermittent and 
perennial streams for biological information. However, this commenter 
indicated that this waiver could conflict with the stream baseline 
requirements in paragraph (c) pertaining to surface water baseline 
sample collection. We disagree. The establishment of baseline flow and 
quality characteristics in paragraph (c) applies to all streams within, 
and adjacent to, the permitted area and cannot be waived. Proposed 
paragraph (h), now final paragraph (g), only allows the regulatory 
authority to waive the biological information required in paragraphs 
(c)(6)(vi) through (viii)--not the water quality and quantity 
information in paragraph (c).
    One commenter suggested that many other non-mining related impacts 
occur in streams that could potentially affect the receiving stream's 
aquatic environment. The commenter suggested removing the exemptions 
proposed in paragraph (h) and instead require biological condition 
baseline data in all circumstances. We disagree with the suggestion to 
remove the three exemption clauses because it saves time and resources 
in situations where it is not likely to yield data to help with 
reclamation, and also non-mining related activities are not regulated 
under SMCRA. The requirements of paragraphs (c)(2) and (3) will provide 
sufficient data to characterize baseline conditions in most situations 
where mining operations avoid all activities within or near streams. If 
the regulatory authority chooses to require biological condition data 
when one of the three conditions is present, the final rule contains 
sufficient discretion for them to do so. For these reasons, we are 
retaining the exemptions within the final rule language.
Final Paragraph (h): Coordination With Clean Water Act Agencies
    We received several comments on proposed paragraph (i), now final 
paragraph (h), and, as a result, we have made a few revisions. First, 
some commenters asserted that requiring coordination with Clean Water 
Act agencies would not necessarily be useful if the Clean Water Act 
authority did not respond to coordination attempts. It is important to 
obtain the input from the Clean Water Act authority when considering 
aquatic impacts from SMCRA sites on adjacent receiving streams; the 
Clean Water Act authority is a valuable source of information and 
should be used in SMCRA permitting decisions. In response to the 
commenter's concerns, however, we added the phrase ``make best efforts 
to'' in the introductory text because the nature of response of the 
Clean Water Act authority is out of the control of the SMCRA regulatory 
authority. Adding ``make best efforts to'' also addresses other 
comments received on what is now final paragraph (h)(2), which provides 
that the regulatory authority make best efforts to ``minimize 
differences in baseline data collection points and parameters.'' These 
commenters also alleged that significant delays in SMCRA permitting 
will result if the regulatory authority must reconcile the baseline 
data collection points and parameters required by this rule with the 
Clean Water Act requirements, which are more complex and include a 
greater number of parameters. We understand the concern, but data 
collection reconciliation is important to alleviate wasted effort and 
to ensure consistency between the Clean Water Act authority and the 
SMCRA permit holders. For example, multiple but non-coordinated 
macroinvertebrate sampling can yield inaccurate results if conducted at 
a similar location and at a frequency that does not allow the site to 
recover sufficiently between sample events. For all of these reasons, 
we decline to completely remove the language requiring coordination.
    One commenter suggested that we place a reasonable time limit on 
the agencies to respond to information needed from other agencies in 
order for the SMCRA regulatory authority to make a permitting decision. 
The commenter suggested that permit applicants would be at the mercy of 
other agencies to get all the information necessary for a permitting 
decision and suggested requiring a reasonable time limit for agency 
responses to information requests. We are not adopting this suggestion 
because we have no authority to place regulatory burdens on other 
agencies exercising other statutory authorities. The intent of this 
provision is to ensure all information is available to the SMCRA 
regulatory authority to make an evaluation, permitting decision, and 
permit findings and associated documents. In addition, the requirement 
to have sufficient information to make permitting decisions and develop 
supporting documentation is not a new requirement.
Final Paragraph (i): Corroboration of Baseline Data
    We received many comments on the requirement in proposed paragraph 
(j), now final paragraph (i), to corroborate a sample of the baseline 
information. Many commenters indicated mandatory sample corroboration 
was not a feasible mechanism to achieve the desired result

[[Page 93174]]

because of the timing and expense; others asked what constituted a 
``sample.'' The intent of sample corroboration is to ensure the quality 
of the data collected and that the data accurately characterizes the 
baseline conditions. We recognize that co-collection of samples or 
other similar means of corroboration is not the only method to 
corroborate samples, and we have added the phrase ``visual observation 
of sample collection'' as an allowable means to corroborate a sample.
    Some commenters inquired as to whether corroboration meant one 
sample or numerous samples. One commenter noted that, under the 
proposed provision, one sample is sufficient to meet the corroboration 
requirements but that such corroboration would have no validity because 
it has a statistical strength of zero. We understand the need for 
statistical certainty in some situations, but the goal of the 
corroboration is to evaluate gross water quality features not to 
achieve statistical certainty. Final paragraph (i), however, leaves the 
regulatory authority with the discretion to determine the number and 
means of sample corroboration, even if it is just one sample. The 
regulatory authority is in the best position to determine the number of 
corroboration samples due to their familiarity with the area, water 
quality, and labs used to general data.
    Similarly, another commenter raised the possibility of safety 
concerns if corroboration were to occur during winter months when sites 
may not be readily or safely accessible. We did not revise paragraph 
(i) in response to this concern because we are not prescribing when the 
corroboration occurs; thus, the regulatory authority has the 
flexibility to approve corroboration at times when sites can be safely 
accessible.
    A commenter, who supported the corroboration requirement, suggested 
that we revise the language to specify that the corroboration occur on 
a random sampling of sites with a large enough sample size to 
statistically represent the data reported to the state regulatory 
authority. For the same reasons discussed in the previous paragraphs, 
we decline to be more specific and prescriptive. The regulatory 
authority is in in the best position to determine corroboration 
protocol and validity for each proposed operation.
    One commenter suggested we consider adopting standard quality 
assurance and quality control sampling procedures, such as those 
required by the U.S. Environmental Protection Agency, that require the 
collection of duplicates at ten percent of stations, analyzing field 
blanks, and duplicate identification of benthic samples. Similarly, 
several regulatory authorities commented that they already have 
sufficient corroboration requirements in their state regulations and 
the requirement should be stricken from the rule. We applaud these 
regulatory authorities for their efforts to ensure an adequate and 
accurate baseline characterization, but we decline to remove this 
requirement and we also decline to adopt standard quality assurance and 
quality control sampling procedures. Not all states are as proactive as 
these states cited by the commenters, and corroboration is an important 
responsibility that should be applicable to all states. As noted above, 
however, we have left the provision in general terms so that each state 
can tailor the corroboration protocol to its unique needs.
    Many commenters opined that requiring the regulatory authority to 
corroborate a sample was a major change from the previous applicant 
self-monitoring requirement and will considerably increase staff time 
and cost to implement. Other commenters suggested that the regulatory 
agency be required to conduct this assessment and should not contract 
with third party entities at the applicant's expense to complete the 
task in lieu of the regulatory authority. The final rule, as modified, 
emphasizes the need for accurate baseline information to be collected 
by the applicant. Final paragraph (i) simply establishes a quality 
assurance and control step in the application review process, subject 
to regulatory authority approval, that should not incur extraneous 
expense to either the regulatory authority or the applicant because of 
the minimal number of samples required.
Section 780.20: How must I prepare the determination of the probable 
hydrologic consequences of my proposed operation (PHC determination)?
    As discussed in the preamble to the proposed rule, we proposed to 
modify Sec.  780.20.\387\ After evaluating the comments we received, we 
are adopting the section as proposed, with the exceptions discussed 
below.
---------------------------------------------------------------------------

    \387\ 80 FR 44436, 44500-44501 (Jul. 27, 2015).
---------------------------------------------------------------------------

    In general, this section relates to the preparation of the probable 
hydrologic consequences determination. One commenter requested that we 
provide a definition of a ``probable hydrologic consequences 
determination'' and provide a method for predicting the probable 
hydrologic consequences. Specifically, the commenter requested a 
defined level of probability; otherwise, the commenter opined that the 
concept of probable hydrologic consequences is ambiguous and the 
applicant has discretion to determine what probable hydrologic 
consequences determination means. We disagree. Section 507(b)(11) of 
SMCRA \388\ and other guidance provided in Sec. Sec.  780.20(a) and 
784.20(a) sufficiently detail what must be considered by the applicant 
when determining the probable hydrologic consequences and the purpose 
and goal in making these determinations. In addition, we have published 
several technical reference documents concerning the development of 
probable hydrologic consequences determinations and cumulative 
hydrologic impact assessments. These documents can be accessed via our 
Web site at http://www.osmre.gov/. As a result, we do not need to set a 
level of probability or to otherwise define ``probable hydrologic 
consequences determination.''
---------------------------------------------------------------------------

    \388\ 30 U.S.C. 1257(b)(11).
---------------------------------------------------------------------------

    Throughout this section we are substituting the term ``biology'' 
for ``biological condition'' for the same reasons we articulate in 
connection with final paragraphs (c)(6)(vi) through (viii) of Sec.  
780.19. In brief, we use the term ``biology'' to encompass the type of 
information needed to establish both the biological condition of 
perennial and intermittent streams, for which established protocols 
exist, and the biology of intermittent streams, for which established 
protocols are not currently in place. This recognizes that not all 
states have scientifically defensible protocols for assessing the 
biological condition of intermittent streams. For the same reasons, we 
have removed the requirement to evaluate, for the probable hydrologic 
consequences determination, the biological condition of ephemeral 
streams within the proposed permit and adjacent areas. For additional 
information on why we have made these type of changes, please refer to 
the preamble discussion in final paragraphs (c)(6)(vi) through (viii) 
of Sec.  780.19, above.
Final Paragraph (a): Content of PHC Determination
    Final paragraph (a), similar to proposed paragraph (a), revises the 
requirements concerning preparation of the determination of the 
probable hydrologic consequences of mining in previous Sec. Sec.  
780.21(f)(1) through (f)(3) by adding a requirement to consider the 
impacts of the proposed operation on

[[Page 93175]]

the biological condition of perennial and intermittent streams located 
within the proposed permit and adjacent areas, rather than only on the 
quantity and quality of surface water and groundwater as in the 
previous rule.
    One commenter made a general statement that numerical standards and 
biological assessments should be included to improve probable 
hydrologic consequences determinations and cumulative hydrologic impact 
assessments. For information concerning the use of numerical standards 
in the final rule, please refer to the preamble discussion in Sec.  
773.15 above. For biological assessments, refer to Sec.  
780.19(c)(6)(ii) through (viii).
    In response to proposed Sec. Sec.  780.20(a) and 784.20(a), one 
commenter suggested that we should not extend the same protections to 
ephemeral streams as we do to intermittent and perennial streams. We 
did not propose to extend the same protections to ephemeral streams 
that we did for intermittent and perennial streams. In response to 
scientific literature supporting the benefits of these headwaters to 
essential biological and ecological functions, the final rule provides 
greater protections to ephemeral streams than do the existing 
regulations as described in Part VII of the preamble to the proposed 
rule.\389\ These enhanced protective measures are consistent with the 
purpose of SMCRA at section 102(f) which requires us 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.'' \390\ While the protections we are now promulgating for 
ephemeral streams will be greater than under the previous rules, they 
will not be the same as those extended to intermittent and perennial 
streams. In particular, because of the difficulty in sampling the 
biological condition of ephemeral streams, we have removed ephemeral 
streams from the requirement under this paragraph to evaluate 
biological condition.
---------------------------------------------------------------------------

    \389\ 80 FR 44436, 44451 (Jul. 27, 2015).
    \390\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    One commenter recommended we split paragraph (a) into two 
subparagraphs--one related to biological consequences and one related 
to hydrologic consequences. The commenter also requested that any 
discussion of biological consequences not be contained within the 
cumulative impact assessment. We are not adopting this suggestion 
because water quality and quantity are linked to biological condition 
and ecological function, and, in order for the regulatory authority to 
have a full description of the probable hydrologic consequences, we 
have determined that biological, hydrological, geologic, and ecological 
information should be addressed within the same assessment.
    Several commenters opined that proposed paragraph (a), requiring 
the probable hydrologic consequences determination to include surface 
water quality impacts from point source discharges, effectively 
replaces the reasonable potential analysis under the Clean Water Act 
and is in violation of section 702 of SMCRA.\391\ Furthermore, the 
commenter suggested the documentation of water quantity is problematic 
due to issues with stream flow modeling. We disagree. The probable 
hydrologic consequences determination has always required that the 
applicant address the anticipated effects of the planned mining 
operation and subsequent reclamation on the quality and quantity of 
surface water and groundwater water resources in the proposed permit 
and adjacent areas including those waterways that would receive 
drainage from the site; therefore, with regards to this requirement, 
paragraph (a) does not require additional analysis from what was 
previously required. We also disagree that this requirement in any way 
supersedes the Clean Water Act. Part IV.I. of this preamble further 
discusses the relationship between SMCRA and Clean Water Act.
---------------------------------------------------------------------------

    \391\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    One commenter objected to the requirement in paragraph (a) for the 
probable hydrologic consequences determination to include specific 
findings on the criteria listed in paragraphs (a)(1) through (a)(5) and 
further stated that SMCRA holds the regulatory authority responsible 
for making such findings relative to the cumulative impact. We 
disagree. Section 507(b)(11) of SMCRA \392\ requires that the permit 
application contain, in a manner satisfactory to the regulatory 
authority, ``a determination of the probable hydrologic consequences of 
the mining and reclamation operations, both on and off the mine site, 
with respect to the hydrologic regime, quantity and quality of water in 
surface and ground water systems including the dissolved and suspended 
solids under seasonal flow conditions and the collection of sufficient 
data for the mine site and surrounding areas so that an assessment can 
be made by the regulatory authority of the probable cumulative impacts 
of all anticipated mining in the area upon the hydrology of the area 
and particularly upon water availability . . .'' Section 510 (b)(3) of 
SMCRA \393\ states that neither a permit nor a revision to an existing 
application can be approved unless, among other things, ``the 
assessment of the probable cumulative impact of all anticipated mining 
in the area on the hydrologic balance specified in section 507(b) has 
been made by the regulatory authority and the proposed operation 
thereof has been designed to prevent material damage to hydrologic 
balance outside permit area . . .''
---------------------------------------------------------------------------

    \392\ 30 U.S.C. 1257(b).
    \393\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter was concerned about proposed paragraph (a)(5)(vi) 
which requires that the probable hydrologic consequences determination 
contain a finding about the impact that any diversion of surface or 
subsurface flows to underground mine workings or any changes in 
watershed size as a result of the postmining surface configuration 
would have on the availability of surface water and groundwater. 
Commenters claimed the requirement was open ended, that evaluations of 
impacts starting at first order streams would be incredibly cumbersome 
and time consuming, and that such diversions should be addressed on a 
regional basis in order to properly assess impacts and costs. We 
disagree. Consideration of this type of data is necessary to produce a 
comprehensive probable hydrologic consequences determination for the 
proposed mining operation, as well as a thorough and inclusive 
cumulative hydrologic impact assessment. For example, diversions of 
surface or subsurface flows to underground mine workings will increase 
the existing volume of water which could exceed the holding capacity of 
the mine voids and result in an unanticipated blowout or discharge of 
the water to the ground surface. Diversions could also impact users of 
surface water or groundwater by diminishing or eliminating the 
availability of the water resources. We agree that it may be prudent in 
some instances to evaluate diversions of flows to underground mine 
workings on a regional basis and that should be considered by the 
regulatory authority while preparing the cumulative hydrologic impact 
assessment. However, it is the responsibility of the applicant to 
ensure that all activities of the proposed operation have been 
considered and evaluated relative to potential impacts. In addition, 
changes in watershed size as a result of the postmining surface 
configuration can

[[Page 93176]]

also affect the volume and availability of water resources resulting in 
either too much, or not enough, available water as compared to 
premining conditions; therefore, it is necessary that all activities 
for a proposed mining operation be considered for their potential 
effect on the quality and quantity of surface and groundwater, 
including the biology of the waterways, for the proposed permit and 
adjacent area.
    In final paragraphs (a) and (a)(5)(vii), we have exempted 
operations that avoid streams from the requirement to assess the impact 
the proposed operation will have on biology of perennial and 
intermittent stream. We are doing this for the same reasons we 
articulate above in the preamble discussion of final rule Sec.  
780.19(g), which allows the regulatory authority to waive the 
biological information requirements of final rule Sec.  
780.19(c)(6)(vi) through (viii), if the applicant demonstrates and the 
regulatory authority finds in writing that the operation will not mine 
through or bury a perennial or intermittent stream, create a point 
source discharge to any perennial, intermittent, or ephemeral stream, 
or modify the base flow of any perennial or intermittent stream. For 
additional information on why we made these types of changes, please 
refer to the preamble discussion above. One commenter questioned 
whether, during preparation of the probable hydrologic consequences 
determination, an operator would always be able to obtain from the 
regulatory authority the criteria needed to determine whether the 
operation may cause material damage to the hydrologic balance outside 
the permit area as required in paragraph (a)(1). We anticipate that the 
applicant will collaborate and coordinate with the regulatory authority 
as necessary to ensure that the criteria for assessing the material 
damage to the hydrologic balance outside the permit area are 
established in time to be available for the probable hydrologic 
consequences determination. We also anticipate that the regulatory 
authority will coordinate with Clean Water Act agencies in preparing 
these criteria.
    We have revised final paragraph (a)(2) to clarify that the 
applicant must evaluate the potential for toxic mine drainage not only 
during active mining and reclamation operations but also after these 
activities have been completed. This provision now specifies that when 
making a finding on whether acid-forming or toxic-forming materials are 
present that could result in contamination of surface water or 
groundwater, the applicant must consider discharges of toxic mine 
drainage that could occur after the completion of land reclamation in 
the evaluation.
    Proposed paragraph (a)(5) required that the applicant determine 
what impact the proposed operation will have on specific water quality 
parameters, including parameters for which baseline information is 
required under Sec.  780.19(a)(2). We required in proposed paragraph 
(a)(5)(ii) the addition of any other water quality parameters in the 
evaluation that were identified to be of local importance.
    One commenter disagreed with this addition because it required the 
regulatory authority to identify the water quality parameters of local 
importance rather than the Clean Water Act authorities, which the 
commenter alleged violates section 702 of SMCRA.\394\ As discussed in 
Part IV, section I of this preamble, we disagree that this requirement 
in any way supersedes the Clean Water Act. Of course, the SMCRA 
regulatory authority should consult with the Clean Water Act regulatory 
authority as needed to identify water quality parameters of local 
importance.
---------------------------------------------------------------------------

    \394\ 30 U.S.C. 1292.
---------------------------------------------------------------------------

    We also revised paragraph (a)(5)(ii) in the final rule to clarify 
that the proposed reference to ``water quality'' refers to both 
groundwater and surface water quality. We further revised this 
paragraph to reference the parameters listed Sec.  780.19(a)(2) as 
those which must be addressed in the findings on the impacts of the 
proposed operation on groundwater and surface water. Consequently, we 
have deleted as redundant proposed paragraphs (5)(ii)(A) through (K) 
which listed those parameters.
    Another commenter requested that we revise proposed paragraph 
(a)(5)(ii)(L), now paragraph (a)(5)(ii) in the final rule, to state 
that the regulatory authority would identity parameters of local 
importance. We agree and have made appropriate revisions to that 
paragraph. The regulatory authority is in the best position to identify 
those local parameters of concern, if applicable, and include them in 
the required baseline monitoring data. Therefore, we have revised 
Sec. Sec.  780.19 and 780.23 in the final rule to specify that the 
regulatory authority will be the one that determines parameters to be 
of local importance. We anticipate that, during the development of the 
permit application package, the applicant will take part in this 
process by consulting with the regulatory authority about which, if 
any, additional parameters should be added to the baseline monitoring 
plans.
    One commenter indicated that peak-flow data, as required in 
proposed paragraph (a)(5)(iv), may be insufficient to accurately 
predict trends in ephemeral streams due to the episodic nature of the 
flows. We agree with the commenter and have now exempted ephemeral 
streams from the requirement in Sec. Sec.  780.19(c)(3) and 
780.20(a)(5)(iv) in the final rule. Peak-flow magnitude and frequency 
data will be required for perennial and intermittent streams within the 
proposed permit and adjacent areas.
    Many commenters on proposed Sec.  780.20(a)(5)(vii) reiterated 
various points made in connection with proposed Sec.  780.19(e), now 
Sec.  780.19(c)(6)(ii) through (viii), such as: Support for the 
assessment of the effects the proposed operation will have on the 
biological condition of streams; requests that the regulations be 
revised to clarify that a qualitative evaluation of streams is 
sufficient in certain cases to establish findings on the biological 
condition of streams; and that it is not necessary to complete a new 
and comprehensive assessment of streams for every mine site. Our 
responses to these comments are set out in the preamble to final Sec.  
780.19(c)(6)(ii) through (viii) and are not repeated here.
    In Sec.  780.20(a)(5)(vii), we proposed to require an evaluation of 
the biological condition of the operation in streams both within the 
permit area and in ``adjacent areas.'' Several commenters expressed 
concern that the baseline data collection and permitting process may be 
difficult because the extent of the ``adjacent area'' may not be easy 
to determine and may change as data are collected and analyzed. We 
encourage applicants to coordinate with the regulatory authority in 
determining the size of the adjacent area, i.e., the area from which 
baseline data must be collected. However, should the regulatory 
authority determine that supplemental information, including additional 
information on the adjacent area, is needed to fully evaluate the 
probable hydrologic consequences of the proposed operation you must 
then submit supplemental information, as explained in paragraph (b), 
below.
Final Paragraph (b): Supplemental Information
    As proposed, paragraph (b) was substantively identical to previous 
Sec.  780.21(b)(3), with the exception that we proposed to expand the 
conditions under which the regulatory authority must request additional 
supplemental information related to the probable

[[Page 93177]]

hydrologic consequences determination. We received numerous comments 
stating that the requirement to submit supplemental information is 
redundant with similar data requirements in Sec.  780.19, and is 
onerous and burdensome. Commenters also stated that the supplemental 
information should not be mandatory under these circumstances, given 
the more comprehensive nature of baseline permit application 
information requirements concerning hydrology and geology that will be 
required under the rule and given that the regulatory authority has the 
implied authority to request additional information if and when 
necessary. We agree with these comments and have removed paragraph (b) 
from the final rule.
Final Paragraph (c): Subsequent Reviews of PHC Determinations
    We are adopting paragraph (c)(1), now final paragraph (b)(1), as 
proposed, which is substantively identical to previous Sec.  
780.21(f)(4), which requires that the regulatory authority determine 
whether a new or updated probable hydrologic consequences determination 
is needed as part of the process of evaluating permit revision 
applications. We proposed paragraph (c)(2) to clarify that the 
applicant must prepare a new or updated probable hydrologic 
consequences determination whenever a regulatory authority review finds 
that one is needed. Several commenters objected to the addition of 
proposed paragraph (c)(2). These commenters noted that a new or updated 
probable hydrologic consequences determination would result in 
increased cost and staff time to the applicant. We disagree. The 
requirement in proposed paragraph (c)(1), now final paragraph (b)(1), 
for the regulatory authority to make a determination on whether a new 
or updated probable hydrologic consequences determination is necessary 
for a permit revision is substantively the same as that in previous 
Sec.  780.21(f)(4); it has always been anticipated that the applicant 
would submit a revised or new determination should the regulatory 
authority deem one necessary. Thus, as this is an existing requirement, 
there will not be any additional cost or staff time beyond satisfying 
the requirement of the previous Sec.  780.21(f)(4). This requirement, 
moreover, is consistent with section 510(b)(3) of SMCRA \395\ which 
requires that ``the assessment of the probable cumulative impact of all 
anticipated mining in the area on the hydrologic balance specified in 
section 507(b) has been made by the regulatory authority and the 
proposed operation thereof has been designed to prevent material damage 
to hydrologic balance outside permit area'' prior to approval.\396\ 
Likewise, for permit revision applications, section 510(b)(3) of SMCRA 
requires, ``the assessment of the probable cumulative impact of all 
anticipated mining in the area on the hydrologic balance specified in 
section 507(b) has been made by the regulatory authority and the 
proposed operation thereof has been designed to prevent material damage 
to hydrologic balance outside permit area'' prior to approval.\397\
---------------------------------------------------------------------------

    \395\ 30 U.S.C. 1257(b)(11) and 1260(b)(3).
    \396\ 30 U.S.C. 1260(b)(3).
    \397\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter expressed concern that unless the regulations set 
forth specific criteria to determine when an updated or new probable 
hydrologic consequences determination is needed, an applicant could be 
subjected to denials or endless cycles of probable hydrologic 
consequences determination studies depending on the bias and 
preferences of the regulatory authority. Thus, this commenter and 
others requested that we revise this paragraph to provide objective 
criteria to clarify this provision and ensure consistency. We disagree 
with the commenter's assertion that objective criteria for defining 
when an updated or new probable hydrologic consequences determination 
must be made should be included in this section of the final rule. 
Section 510(b)(3) of SMCRA \398\ is not explicit regarding that 
criteria that will result in the need for a new or updated probable 
hydrologic consequences determination, as these criteria may vary among 
state regulatory programs. Regulatory authorities should have 
discretion in establishing the criteria that will trigger the need for 
an updated probable hydrologic consequences determination based on the 
changes that are proposed in the permit revision application and based 
upon local, regional, and operational conditions. Further, we do not 
agree with the commenter's concern about regulatory abuse. Section 
510(b)(3) of SMCRA \399\ clearly contemplates the regulatory authority 
making the assessment of the probable cumulative impact of all 
anticipated mining in the area. In the event the regulatory authority 
denies the permit, the permittee may exercise its rights pursuant to 
section 514 of SMCRA.\400\
---------------------------------------------------------------------------

    \398\ Id.
    \399\ Id.
    \400\ 30 U.S.C. 1264.
---------------------------------------------------------------------------

Section 780.21: What requirements apply to preparation, use, and review 
of the cumulative hydrologic impact assessment (CHIA)?
    Our previous regulations contained very few standards or criteria 
for preparation of the cumulative hydrologic impact assessment. As we 
stated in the preamble to the proposed rule, the lack of standards or 
content requirements for the cumulative hydrologic impact assessment, 
coupled with the lack of a definition of ``material damage to the 
hydrologic balance outside the permit area,'' created an impediment to 
stream protection under SMCRA because there are no objective criteria 
to apply. Therefore, as discussed in the preamble to the proposed rule, 
we proposed to modify our regulations at Sec.  780.21 to include 
content requirements for the cumulative hydrologic impact assessment, 
procedural requirements, and criteria for determining material damage 
to the hydrologic balance outside the permit area.\401\ We received 
numerous comments on our proposed revisions. After evaluating the 
comments, we are adopting Sec.  780.21 as proposed, with the revisions 
discussed below.
---------------------------------------------------------------------------

    \401\ 80 FR 44436, 44501-44503 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): General Requirements
    Proposed paragraph (a)(2) provided that the regulatory authority 
would consider relevant information on file for other mining operations 
located within the cumulative impact area or in similar watersheds 
during preparation of the cumulative hydrologic impact assessment. One 
state regulatory authority suggested we change ``will consider'' to 
``may consider.'' We reject this comment because the intent of the 
cumulative hydrologic impact assessment is specifically to assess the 
cumulative impacts of all coal mining and reclamation operations in the 
defined cumulative impact area. To properly assess these impacts, the 
regulatory authority must consider other mining operations in the 
defined cumulative area. Thus, we have changed ``will consider'' to 
``must consider'' in order to indicate the necessity of the requirement 
to consider other mining operations and to clarify that this aspect of 
the cumulative hydrologic impact assessment cannot be overlooked during 
the assessment. Further, this modification reflects the plain language 
principles discussed in Part II of this preamble because ``will 
consider'' expresses that the activity may be completed in the future. 
Because the

[[Page 93178]]

information about existing mining operations is available, its 
consideration should occur prior to completion of the cumulative 
hydrologic impact assessment and not at some point in the future.
    Another commenter opined that the analysis conducted in the 
cumulative hydrologic impact assessment should be performed by mine 
operators instead of the SMCRA regulatory authority. This commenter 
asserted that regulatory authorities have historically been negligent 
in conducting thorough cumulative hydrologic impact assessments because 
of limited resources and that material damage findings historically 
often have included little supporting analysis or information. This 
commenter also asserted that the previous regulations do not require 
collection of sufficient data to prepare an adequate cumulative 
hydrologic impact assessment and that mine operators have information 
more readily available than do the regulatory authorities and this 
information should be utilized. Section 507(b)(11) of SMCRA \402\ 
specifically requires an assessment to be performed by the regulatory 
authority of the probable cumulative impacts of all anticipated mining 
in the area upon the hydrology of the area. Further, section 510(b)(3) 
of SMCRA \403\ specifies that no permit application or revision may be 
approved unless the application affirmatively demonstrates and the 
regulatory authority finds in writing that the assessment of the 
probable cumulative impact of all anticipated mining in the area has 
been made and the operation has been designed to prevent material 
damage to the hydrologic balance outside the permit area. This 
assessment cannot be delegated to mine operators as the commenter 
proposes and therefore, we have not changed the final rule in response 
to this comment.
---------------------------------------------------------------------------

    \402\ 30 U.S.C. 1257(b)(11).
    \403\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter recommended that we use consistent terminology 
between the preamble to the proposed rule, which stated that we 
intended to ensure that the regulatory authority considers all 
available information and the proposed rule, which states that the 
regulatory authority ``must consider'' relevant information on file. We 
are not modifying the final rule in response to this comment. Although 
the regulatory authority should consider any information available to 
it for the assessment, paragraph (a)(2) sets a minimum standard for the 
regulatory authority to consider relevant coal mining information on 
file. We recognize that some information associated with other adjacent 
and underlying industries, such as oil and gas, may be proprietary or 
difficult to obtain. For this reason, the regulatory authority should 
consider all available information, but it must consider coal mining 
information that it has on file.
    One regulatory authority commenter indicated that the proposed rule 
did not include a provision for proposed mine sites that may be 
hydrologically isolated. When preparing the cumulative hydrologic 
impact assessment only ``relevant'' information must be considered. In 
this context, hydrologically isolated, proposed mine sites do not have 
``relevant'' information associated with the permit application. 
Therefore, we are not modifying the final rule in response to this 
comment.
    Paragraph (a)(3) of the final rule clarifies that information 
required for preparation of the cumulative hydrologic impact assessment 
must be received and reviewed prior to approval of the permit 
application. The proposed rule only required receipt of the information 
prior to permit application approval. We made this change to ensure 
that the regulatory authority both received and used all the 
information necessary to properly develop the cumulative hydrologic 
impact assessment.
Final Paragraph (b): Contents
    Proposed paragraph (b) established detailed requirements for the 
content of the cumulative hydrologic impact assessment to ensure that 
the assessment is sufficiently comprehensive to support the required 
finding that the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. 
Several commenters supported the content requirements identified in 
proposed paragraph (b), but other commenters opposed elements of those 
requirements.
    One commenter questioned the requirement of paragraph (b)(1)(iv) 
that the designated uses of surface water under section 303(c) of the 
Clean Water Act \404\ be displayed on a map. The commenter reasoned 
that the designated uses that must be specified to meet this 
requirement should include the designated uses prescribed by the state 
in which the operation may occur because many states adopt their own 
designated uses that may differ from federal designations. We agree 
with the commenter that states may change a designated use. However, 
the U.S. Environmental Protection Agency is required to review those 
changes to ensure that revisions in designated uses are consistent with 
the Clean Water Act and that new or revised criteria protect the 
designated uses to ensure compliance with the requirements of section 
303(c) of the Clean Water Act and federal water quality standards. 
Therefore, we are still requiring that the current approved designated 
uses under 303(c) of the Clean Water Act \405\ be displayed on a map 
for the purpose of the cumulative hydrologic impact assessment. 
However, at the suggestion of a federal agency we removed reference to 
section 101(a) of the Clean Water Act,\406\ which is a statement of the 
general goals and policies of the Clean Water Act. Limiting reference 
to section 303(c) of the Clean Water Act is more precise.
---------------------------------------------------------------------------

    \404\ 33 U.S.C. 1251(a) or 33 U.S.C. 1313(c).
    \405\ Id.
    \406\ 33 U.S.C. 1251(a).
---------------------------------------------------------------------------

    As discussed earlier in this preamble, final Sec.  780.19 requires 
the collection of certain baseline hydrologic information. Final 
paragraph (b)(3) of Sec.  780.21 requires that the cumulative 
hydrologic impact assessment contain a description of the baseline 
hydrologic information for the proposed permit and adjacent areas that 
are collected under Sec.  780.19. In response to comments about the 
level of detail required, final paragraph (b)(3) clarifies that the 
description must be both qualitative and quantitative. Both 
quantitative and qualitative information on water quality and quantity 
is needed to describe baseline hydrologic conditions adequately because 
qualitative descriptions often provide needed context for quantitative 
information.
    Proposed paragraph (b)(3)(ii) would have required information about 
existing usage of surface water and groundwater, as well as information 
defining the quality of water required for each existing and reasonably 
foreseeable use of groundwater and surface water and each designated 
use of surface water under section 303(c) of the Clean Water Act.\407\ 
Two commenters indicated that the cumulative hydrologic impact 
assessment findings on reasonably foreseeable designated uses are not 
clearly defined and may result in variable interpretations when 
forecasting potential reasonably foreseeable uses. One commenter 
requested that we make a distinction between protecting designated uses 
and existing uses. Another commenter strongly recommended that the 
final rule clarify that the corrective action for

[[Page 93179]]

designated uses should be tied to the postmining land use and be 
determined by the state Clean Water Act authority, instead of some 
other arbitrarily assigned higher use that was not achievable prior to 
mining. In response to all of these comments, final paragraph 
(b)(3)(ii) includes a requirement for information on the quantity, as 
well as the quality, of water needed to support, maintain, or attain 
water uses. In addition, final paragraph (b)(3)(ii) requires a list of 
water uses for which the information required in paragraph (b)(3) must 
be assessed. Specifically, for surface water, final paragraph 
(b)(3)(ii)(A) requires assessment of the designated uses or, if no 
designated use exists, each premining use. Final paragraph 
(b)(3)(ii)(B) requires assessment of premining uses of groundwater. 
Unlike the proposed rule, the final rule does not require an assessment 
of reasonably foreseeable uses of either surface water or groundwater. 
We did not adopt the proposed requirement for assessment of reasonably 
foreseeable uses because of the subjective nature of that 
determination.
---------------------------------------------------------------------------

    \407\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (b)(3)(iii) would have required the inclusion of 
a description and map of the local and regional groundwater systems as 
part of the cumulative hydrologic impact assessment. One regulatory 
authority sought flexibility regarding the presentation and description 
of the local and regional aquifer system. In response to this comment, 
we slightly modified the requirement to allow a description or map 
rather than requiring submission of both a description and a map in all 
cases. This change provides the regulatory authority with flexibility 
to accept maps, descriptions, or both in order to best explain aquifer 
characteristics, such as hydraulic gradient.
    Proposed paragraph (b)(3)(iv) required baseline information on the 
biological condition of all perennial, intermittent, and ephemeral 
streams. In response to comments, we modified final paragraph 
(b)(3)(iv) to be consistent with the monitoring requirements at final 
Sec.  780.19(c)(6)(vi) through (viii) of this part, which no longer 
require monitoring of the biological condition of ephemeral streams.
    One commenter questioned proposed paragraph (b)(5), which required 
that a quantitative assessment be conducted on how all anticipated 
surface and underground mining may impact the quality of surface water 
and groundwater in the cumulative impact area. According to the 
commenter, this requirement is too vague. The commenter was concerned 
with how these impacts would be expressed in terms of each baseline 
parameter identified under Sec.  780.19. The commenter requested 
guidance on evaluating impacts within the cumulative impact area on a 
parameter-by-parameter basis. We direct the commenter to the definition 
of ``cumulative impact area'' in Sec.  701.5, which establishes the 
scope and intent of the evaluations within the cumulative impact area. 
We decline to delve into an explanation of methods used to predict 
water quality on a parameter-by-parameter basis because it is beyond 
the scope of this document. In general, to arrive at mining-induced 
changes by parameter, most common methods entail some form of 
statistical method, with regression analysis of parameter concentration 
through time being the most common. Additionally, guidance documents 
are available through our National Library at www.osmre.gov/resources/Library.shtm. These documents provide guidance on preparation of the 
determination of the probable hydrologic consequences of the operation 
that the applicant must prepare and the cumulative hydrologic impact 
assessment that the regulatory authority must prepare. We are also 
available for technical assistance in developing the methods necessary 
to support cumulative hydrologic impact assessment findings. In 
summary, both the regulatory authority and the applicant need to 
understand and forecast the impact of the mining and reclamation plan 
on the baseline parameters in final Sec.  780.19 and assess the sum 
total of these impacts on the hydrologic balance within the cumulative 
impact area, as defined at Sec.  701.5 and as required in paragraphs 
(b)(3) through (b)(5) of Sec.  780.21.
    Proposed paragraph (b)(6) required that the cumulative hydrologic 
impact assessment include criteria defining material damage to the 
hydrologic balance outside the permit area on a site-specific basis. 
Proposed paragraph (b)(6)(i) required that these criteria be 
established on a numerical basis for each parameter of concern. 
Numerous commenters argued that there is no authority under SMCRA to 
establish numerical criteria for material damage to the hydrologic 
balance outside the permit area. Commenters also claimed that 
establishment of enforceable water quality criteria under SMCRA that 
differ from water quality standards promulgated under the Clean Water 
Act would violate section 702(a) of SMCRA. Section 702(a) provides, in 
relevant part, that ``[n]othing in this Act shall be construed as 
superseding, amending, modifying, or repealing'' the Clean Water Act 
``or any rule or regulation promulgated thereunder.'' Part IV.I. of 
this preamble discusses the interrelationship between the Clean Water 
Act and SMCRA. Other commenters provided suggestions to refine the 
language of this provision. For instance, one commenter suggested 
replacing the phrase ``numerical terms'' with ``be expressed in 
applicable state or federal water quality standards (or criteria)'' to 
allow the use of both numerical and narrative standards. Another 
commenter supported the use of narrative standards, when applicable, 
compared to numerical standards. One state regulatory authority 
requested that the rule require the use of numerical and narrative 
standards that have defensible numeric threshold criteria.
    After evaluating these and other similar comments, we decided not 
to adopt the proposed requirement that numerical criteria be 
established for each parameter of concern. Instead, final paragraph 
(b)(6) requires that the cumulative hydrologic impact assessment and 
the permit include site-specific numeric or narrative thresholds for 
material damage to the hydrologic balance outside the permit area. The 
regulatory authority has the discretion to determine which parameters 
require material damage thresholds. Material damage thresholds define 
the point at which the operation has failed to prevent material damage 
to the hydrologic balance outside the permit area.
    Final paragraph (b)(6)(i) provides that, when identifying material 
damage thresholds in connection with a particular permit, the 
regulatory authority will, in consultation with the Clean Water Act 
authority, as appropriate, undertake a comprehensive evaluation that 
considers the following factors--
    (1) The baseline data collected under Sec.  780.19;
    (2) The PHC determination prepared under Sec.  780.20;
    (3) Applicable water quality standards under section 303(c) of the 
Clean Water Act;
    (4) Applicable state or tribal water quality standards for surface 
water and groundwater;
    (5) Ambient water quality criteria developed under section 304(a) 
of the Clean Water Act; \408\
---------------------------------------------------------------------------

    \408\ 33 U.S.C. 1314(a).
---------------------------------------------------------------------------

    (6) Biological requirements of any species listed as threatened or 
endangered under the Endangered Species Act of 1973, or their 
designated

[[Page 93180]]

critical habitat, habitat occupied by those species, and areas in which 
those species are present for only a short time but that are important 
to their persistence; and
    (7) Other pertinent information and considerations to identify the 
parameters for which thresholds are necessary.
    The factors listed above and in final paragraphs (b)(6)(i)(A) 
through (G) do not constitute material damage thresholds in and of 
themselves; they are only factors to be considered in determining which 
parameters require material damage thresholds and what those thresholds 
should be.
    Final paragraph (b)(6)(ii) modifies final paragraph (b)(6)(i) 
slightly in that it provides that the regulatory authority, in 
consultation with the Clean Water Act authority, must adopt numeric 
material damage thresholds as appropriate, taking into consideration 
relevant contaminants for which there are water quality criteria under 
the Clean Water Act, 33 U.S.C. 1251 et seq. Final paragraph (b)(6)(ii) 
further provides that the regulatory authority may not adopt a 
narrative threshold for parameters for which numeric water quality 
criteria exist under the Clean Water Act. These provisions reflect 
concerns that were raised during the rule review process. They are 
intended to promote coordination and consistency with Clean Water Act 
regulatory programs.
    One environmental organization recommended that we codify the 
following language from the preamble of the proposed rule: ``SMCRA 
material damage criteria must be no less stringent than Clean Water Act 
water quality standards and criteria in all cases, but, in some 
situations, they may need to be more stringent to protect unique uses 
or to comply with the Endangered Species Act.'' We did not adopt this 
recommendation because there may be situations in which the quoted 
preamble language does not apply.
    An industry commenter expressed concern that we did not provide 
sufficient information or clear specifications for the ``numerical 
terms for each parameter of concern. Final paragraph (b)(6) no longer 
includes the quoted phrase from the proposed rule. Instead, the final 
rule grants the regulatory authority discretion to determine which 
parameters require material damage thresholds and whether those 
thresholds should be narrative or numeric, except as provided in final 
paragraph (b)(6)(ii).
    Proposed paragraph (b)(6)(ii) provided that, in establishing 
material damage criteria, which we now refer to as material damage 
thresholds, the regulatory authority must take into consideration the 
biological requirements of any species listed as threatened or 
endangered under the Endangered Species Act when those species or 
designated critical habitat are present within the cumulative impact 
area. The U.S. Fish and Wildlife Service requested that we revise this 
provision to also apply to both the habitat occupied by those species 
and any areas in which those species are present only for a short time 
but that are important to their persistence, such as migration and 
dispersal corridors. Final paragraph (b)(6)(i)(F) includes the 
recommended language as an evaluation criterion for material damage 
thresholds.
    In the proposed rule,\409\ we invited comment on whether the final 
rule should require that the regulatory authority establish corrective 
action thresholds, which would be lower than material damage thresholds 
to identify the point at which the permittee must take action to 
minimize adverse trends that may continue and ultimately cause material 
damage to the hydrologic balance outside the permit area. We received 
comments both supporting and opposing the development of these 
corrective action thresholds. Several commenters supported the 
establishment of corrective action thresholds because it would provide 
a more objective way to assess the existence or nonexistence of 
material damage to the hydrologic balance outside the permit area. One 
commenter opposed the concept of corrective action thresholds because, 
according to the commenter, establishment of those thresholds would 
conflict with section 702 of the Act. Part IV.I., above, discusses this 
issue. Another commenter opposed corrective action thresholds as being 
duplicative of the requirement to monitor surface water and groundwater 
during mining, which should be sufficient to identify trends that could 
lead to potential problems. In addition, the commenter noted that the 
regulatory authority would also be aware of trends through review of 
the quarterly water monitoring reports required for all operations and 
the annual reports required by some state programs.
---------------------------------------------------------------------------

    \409\ 80 FR 44436, 44502 (Jul. 27, 2015).
---------------------------------------------------------------------------

    After evaluating these comments and the changes that we made to 
paragraph (b)(6), we are adding new paragraph (b)(7) to the final rule. 
This paragraph requires the establishment of evaluation thresholds. We 
included the requirement for evaluation thresholds within the final 
rule because we agree with commenters that thresholds would provide a 
more objective method to assess the potential development of material 
damage outside the permit area. In addition, evaluation thresholds 
provide an opportunity to develop and implement corrective measures 
before adverse impacts rise to the level of material damage to the 
hydrologic balance outside the permit area. We revised the terminology 
from ``corrective action thresholds'' to ``evaluation thresholds'' 
because the action of reaching a threshold would result in reassessment 
of the probable hydrologic consequences determination and cumulative 
hydrologic impact assessment. Corrective action may not be necessary if 
additional evaluation shows that the impact will not rise to the level 
of material damage to the hydrologic balance outside the permit area. 
However, if adverse trends exist, it is incumbent upon the SMCRA 
regulatory authority to evaluate the causes of the adverse trends and 
take action to ensure that the trends do not result in material damage 
to the hydrologic balance outside the permit area.
    Final paragraph (b)(7) requires that evaluation thresholds be 
expressed as numeric values because the thresholds must be measurable 
in order to function as an early warning system that provides ample 
opportunity for the permittee and the regulatory authority to conduct 
the necessary evaluation and undertake any necessary measures to 
prevent material damage to the hydrologic balance outside the permit 
area. This requirement is intended to identify and address potential 
water quality and quantity issues before any standards have been 
violated. This early intervention strategy is necessary because, once a 
water quality issue exists, it is often very costly or impossible to 
correct. Evaluation thresholds institutionalize early detection 
techniques, which can prevent the need for long-term treatment and 
other costly environmental harms through the prevention of material 
damage to the hydrologic balance outside the permit area.
    Under final Sec.  773.15(e), a SMCRA regulatory authority may not 
approve a SMCRA permit application if the cumulative hydrologic impact 
assessment indicates material damage to the hydrologic balance is 
likely to occur outside the permit area. Material damage to the 
hydrologic balance outside the permit area that occurs after permit 
issuance constitutes a violation of final Sec.  816.34(a)(2). In that 
situation,

[[Page 93181]]

the state regulatory authority must take enforcement action.
    Evaluation thresholds are not enforceable as performance standards. 
They also do not amend, supersede, modify or otherwise conflict with 
applicable Clean Water Act requirements, including any National 
Pollutant Discharge Elimination System effluent limitations or 
applicable state or federal water quality standards. Instead, 
evaluation thresholds trigger an obligation for the regulatory 
authority, in consultation with the Clean Water Act agency, as 
appropriate, to evaluate the circumstances causing adverse trends and 
exceedance of the threshold. The purpose of the evaluation and 
coordination is to better ensure that material damage to the hydrologic 
balance outside the permit area does not occur as a result of mining 
activity. If monitoring results at the locations designated under final 
paragraph (b)(6)(iv) document an exceedance of an evaluation threshold, 
the regulatory authority must determine the cause of the exceedance in 
consultation with the Clean Water Act authority, as appropriate. The 
regulatory authority must also determine the likelihood that the 
evaluation threshold exceedance will develop into material damage to 
the hydrologic balance outside the permit area.
    The regulatory authority must issue an order to revise the permit 
if the regulatory authority determines that the adverse trend is the 
result, in whole or in part, of the mining operation. For a more 
complete discussion of the relationship between material damage 
thresholds, evaluation thresholds, and water monitoring requirements 
please see the discussion of general comments in Part IV. M. of this 
preamble.
    We received numerous comments on proposed paragraph (b)(8), now 
final paragraph (b)(9). In response to these comments and to maintain 
consistency with other aspects of the final rule, we revised proposed 
paragraph (b)(8)(i), now final paragraph (b)(9)(i), to ensure that the 
proposed operation will not result in violation of applicable Clean 
Water Act water quality standards or disrupt or preclude attainment of 
certain uses as identified in final paragraphs (b)(9)(i)(A), (B) and 
(C). For consistency with the revised definition of ``material damage 
to the hydrologic balance outside the permit area'' in Sec.  701.5, we 
deleted ``reasonably foreseeable uses'' from this paragraph. The final 
rule still protects designated and premining uses. It more closely 
mirrors the requirements of SMCRA, while explicitly acknowledging that 
isolated water quality exceedances or short-term local or temporal 
stream impacts may occur and may not rise to the level of material 
damage to the hydrologic balance outside the permit area.
    Two regulatory authority commenters suggested we replace the term 
``exceedance'' with ``long term exceedance'' at proposed paragraph 
(b)(8)(i)(B), now paragraph (b)(9)(i). In consideration of the 
implications associated with words that may qualify exceedance such as 
``long-term'' or ``minor,'' and concerns on how the term would be 
interpreted, we removed the reference to exceedance at previous 
paragraph (b)(8)(i)(B), now final paragraph (b)(9)(i).
    An industry commenter suggested that we revise proposed 
(b)(8)(i)(B) to account for drought conditions, changes in human 
activity, and other environmental and human use changes that are 
unrelated to mining that could affect a watershed or streamflow regime. 
In response, we added language to final paragraphs (b)(9)(i) through 
(iv) that the proposed operation--
    (1) Will not violate applicable Clean Water Act water quality 
standards;
    (2) Preclude attainment of premining use when no water quality 
standards exist, or preclude attainment of premining uses for 
groundwater;
    (3) Not result in changes in size or frequency peak flows in areas 
outside the permit boundary;
    (4) Perennial and intermittent streams will have sufficient base 
flow at all times to maintain their premining flow regime; and
    (5) Be designed to protect quality and quantity of aquifer units to 
ensure the prevailing hydrologic balance.
    This revision clarifies that it is the mining operation that cannot 
cause the adverse impacts identified in final paragraphs (b)(9)(i) 
through (iv). It allows the regulatory authority to distinguish between 
environmental and human use changes that are related to mining from the 
proposed operation and those that are not. In addition, the baseline 
monitoring requirements in Sec.  780.19 of the final rule will better 
enable the regulatory authority to distinguish between mining-related 
impacts and non-mining impacts.
    Final paragraph (b)(9) requires the regulatory authority to, after 
consultation with the Clean Water Act authority, as appropriate, 
provide supporting data and analyses that the proposed operation has 
been designed to prevent material damage to the hydrologic balance 
outside the permit area. To support this finding, the cumulative 
hydrologic impact assessment must include several determinations, with 
appropriate documentation, or an explanation of why the determination 
is not necessary or appropriate. Final paragraph (b)(9)(i) provides 
that one of those determinations is that, except as provided in final 
Sec. Sec.  780.22(b) and 816.40, the proposed operation will not: (A) 
Cause or contribute to a violation of applicable water quality 
standards adopted under the authority of section 303(c) of the Clean 
Water Act, 33 U.S.C. 1313(c), or other applicable state or tribal water 
quality standards; (B) cause or contribute to a violation of applicable 
state or tribal groundwater quality standards; (C) preclude attainment 
of a premining use of a surface water located outside the permit area 
when no water quality standards have been established for that surface 
water; or (D) preclude attainment of a premining use of groundwater 
located outside the permit area.
    We have also revised paragraph (b)(8), now final rule paragraph 
(b)(9), slightly by moving three subsections. Proposed paragraph 
(b)(8)(i)(A) pertained to conversion of streams from one stream type to 
another stream type (e.g., intermittent to ephemeral) outside of the 
permit area. We have allowed some forms of conversion as long as the 
stream maintains its designated use(s) and have moved this language to 
final rule paragraph (b)(9)(iii). We retained the language pertaining 
to streams maintaining their applicable Clean Water Act water quality 
standards and moved it to final rule paragraph (b)(9)(i)(A). We also 
slightly modified language at paragraph (b)(6)(i)(F) pertaining to 
adversely affecting threatened or endangered species. We modified final 
rule paragraph (b)(6)(i)(F) to say the cumulative hydrologic impact 
assessment evaluation must consider impacts to threatened and 
endangered species and also included language to the definition of 
material damage to the hydrologic balance outside the permit area 
pertaining to a violation of the Endangered Species Act. We changed the 
language in those two sections to match the intent of each respective 
section. Adding language to the definition of ``material damage to the 
hydrologic balance outside the permit area'' in reference to a 
violation of the Endangered Species Act also serves as a way to 
memorialize the performance standard nature of such an event. We also 
made these changes to be consistent with final rule Sec.  780.16(b), 
pertaining to the fish and wildlife protection and enhancement plan and 
Sec.  779.20, pertaining to information about the fish

[[Page 93182]]

and wildlife resources to be included in the permit application.
    Some commenters expressed concern with the proposed language at 
paragraph (b)(8)(ii), now paragraph (b)(9)(ii), requiring that the 
operation be designed to prevent an increase in damage from flooding 
when compared to premining conditions. One of the commenters indicated 
that it would be difficult to make the measurements required under this 
provision and that it would require an investigation of premining flood 
events to establish baseline for assessing damage from flooding. We 
agree that the proposed language could be interpreted to require an 
investigation of premining flood events. We have removed the phrase 
``damage from'' within paragraph (b)(9)(ii) of the final rule in order 
to clarify that such a premining investigation is not required. The 
final rule, however, continues to require a finding that the operation 
has been designed to ensure that flows will not cause increased 
flooding outside the permit area compared to premining conditions. This 
revision focuses assessment upon peak flows that could result in 
flooding and not damage from flooding. In addition, we added the phrase 
``outside the permit area'' to clarify that the operation must be 
designed to ensure that neither the mining operation nor the final 
configuration of the reclaimed area will result in changes in the size 
or frequency of peak flows from precipitation events or thaws that 
would cause an increase in flooding outside the permit area, when 
compared with premining conditions. We made this change to focus the 
assessment on peak flows that could result in flooding and potential 
damage. One commenter suggested modifying the word ``changes'' to 
``increases'' to be more accurate and limiting. This modification is 
not necessary because the final rule at paragraph (b)(9)(ii) states 
that the changes would be of size or frequency to cause an increase in 
flooding.
    Another commenter recommended that the applicant should plan for, 
and submit, sufficient information on the magnitude of precipitation 
events, especially given that the operator knows the final reclamation 
configuration of the site and can anticipate the magnitude of 
stormwater runoff resulting from the final reclamation configuration. 
The commenter also opined that this information was not required in the 
proposed rule. We do not agree with the commenter that the proposed 
rule did not address this issue; design criteria for postmining site 
configuration are found at Sec. Sec.  816.102 to 816.111. These design 
criteria guide the design, construction, and implementation of the 
final site reclamation configuration and include requirements to 
address postmining drainage issues and stormwater management. In 
addition, hydrologic performance criteria exist at section 816.34 to 
prevent stormwater-induced flooding from SMCRA sites.
    One commenter questioned the application of the term ``recharge 
capacity'' within proposed paragraph (b)(8)(iii), now paragraph 
(b)(9)(iii). We have removed this term from this paragraph of the final 
rule because the term refers to the ability of the overburden to 
release water to the surface water system and does not reflect the goal 
of maintaining baseflow in streams overlying and adjacent to a SMCRA 
mine site. Recharge capacity is an important consideration in the 
overall hydrologic balance but is not the primary objective of 
paragraph (b)(9)(iii). Recharge capacity is a term used to describe the 
movement of water through soil and rock, ultimately to discharge as 
surface water flow. This concept is different than the primary 
objective of (b)(9)(iii) which is to maintain baseflow in a stream. For 
this reason, we removed the term ``recharge capacity'' to focus the 
requirement on sustaining baseflow to prevent material damage to the 
hydrologic balance outside the permit area.
    Commenters alleged that, as proposed, paragraph (b)(8)(iii), now 
paragraph (b)(9)(iii), prohibited the conversion of a perennial or 
intermittent stream to an ephemeral stream or conversion of a perennial 
stream to an intermittent stream. A regulatory authority commented 
that, as drafted, the provision would result in the inability of mine 
operators to permit and mine lands because stream conversion is a 
common, existing occurrence during mining and reclamation. Two other 
commenters indicated that, in effect, this paragraph would be 
impossible to satisfy because streams behave differently depending upon 
numerous natural and man-made interdependent variables. The commenters 
further opined that technological and economic limitations may 
necessitate stream conversion in some situations. The same commenters 
also suggested that it should be permissible to allow a portion of a 
watershed to be degraded as long as the watershed as a whole remains 
functional. For these reasons the commenters recommended removal of the 
proposed provision that they interpreted as limiting or preventing 
stream conversions. Several of the commenter's raised concerns about 
conversions both inside the permit area and outside the permit area. We 
address commenters' concerns about conversions outside the permit area 
in this section of the final rule and discuss the changes to the final 
rule about conversions inside the permit area in the preamble 
discussion of final rule Sec. Sec.  780.28(e) and 784.28(e), below. In 
consideration of the comments specific to preparation, use, and review 
of the cumulative hydrologic impact assessment, we have revised 
paragraph (b)(9)(iii) of the final rule about conversions of perennial 
and intermittent streams outside the permit area. We acknowledge that 
conversion of streams may often have beneficial effects, such as 
converting an ephemeral stream to an intermittent or perennial stream. 
Thus, we have revised the rule language to allow conversion of 
intermittent streams to perennial streams or conversion of an ephemeral 
stream to an intermittent or perennial stream outside the permit area 
as long as the conversion is consistent with the requirements in 
paragraph (b)(9)(i) and does not violate the Endangered Species Act. 
Allowing conversion of certain streams addresses the commenters' 
concern about limiting or preventing conversion while at the same time 
adhering to the environmental objectives of SMCRA found in sections 
510(b) and 515(b).\410\
---------------------------------------------------------------------------

    \410\ 30 U.S.C. 1260(b) and 1265(b).
---------------------------------------------------------------------------

    One regulatory authority suggested that we delete proposed 
paragraph (b)(8)(iv), now paragraph (b)(9)(iv), related to the 
protection of the quantity and quality of water in ``any aquifer that 
significantly ensures the prevailing hydrologic balance.'' The 
commenter opined that water replacement requirements for in-use water 
supplies are already protected and adhered to by operators and that 
replacement supplies are of equal or better quantity, quality, and 
delivery method. We interpret this comment to mean that existing rule 
language in other sections provides the same protection as proposed 
paragraph (b)(9)(iv) and that existing water replacement provisions can 
be better than existing conditions. While we support the regulatory 
authorities' continued use and implementation of water replacement 
requirements, we decline to remove the provision because final 
paragraph (b)(9)(iv) protects more resources than the water replacement 
provisions found in the previous regulations. Water replacement 
provisions are designed to address individual water supplies on a case-
by-case basis, which implies an intact

[[Page 93183]]

aquifer system. In contrast, final paragraph (b)(9)(iv) requires a 
review of, and prevention of, material damage to the hydrologic balance 
outside the permit area to important and hydrologically significant 
aquifers in order to address an entire aquifer, not just a single water 
supply.
Final Paragraph (c): Subsequent Reviews
    We have made a minor change to proposed paragraph (c)(1)(i), now 
final paragraph(c)(2). Commenters pointed out that, within this 
section, biological monitoring was not included in the review of 
monitoring data that the regulatory authority must perform. We agree 
that it should be included and have added the requirement to this 
section.
    One commenter opined that proposed Sec.  780.21(c) is not 
adequately conservative because it requires cumulative hydrologic 
impact assessments only for significant permit revisions. According to 
the commenter, cumulative hydrologic impact assessments should also be 
required for certain non-significant revisions. However, the commenter 
did not provide any specific examples of non-significant revisions that 
would have the potential to affect the analysis. We are retaining the 
rule as proposed in relationship to this comment. As explained in the 
preamble to the proposed rule \411\ preparation of a new or updated 
cumulative hydrologic impact assessment will occur whenever the 
regulatory authority finds that one is needed based on the evaluation 
in final paragraphs (c)(1) and (2).
---------------------------------------------------------------------------

    \411\ 80 FR 44436, 44503 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Several industry and regulatory authority commenters expressed 
concern that the cumulative hydrologic impact assessment review process 
required in paragraph (c) was linked to permit renewal. These 
commenters stated that section 506(d) of SMCRA \412\ guarantees the 
right of successive permit renewal and any changes to the cumulative 
hydrologic impact assessment and underlying conclusions might provide 
an opportunity to void this right. In response, we have revised final 
paragraph (c)(2) to require review of the cumulative hydrologic impact 
assessment, including the evaluation thresholds, every three years 
instead of linking the review to the renewal of the permit. Because of 
the same concerns about permit renewal, we have revised paragraphs 
(b)(vii) through (viii) of final rule Sec.  774.15, related to permit 
renewal, to remove the requirements to review all monitoring data and 
to review the probable hydrologic consequences determination.
---------------------------------------------------------------------------

    \412\ 30 U.S.C. 1256(d).
---------------------------------------------------------------------------

    One regulatory authority commenter explained that it has been 
standard practice since its program was approved to update the 
cumulative hydrologic impact assessment whenever a change or proposed 
change of any aspect of the hydrologic environment warranted the update 
or when area is added to the permit. The commenter continued by noting 
that a significant update to the probable hydrologic consequences 
determination or the hydrologic reclamation plan would trigger a 
cumulative hydrologic impact assessment update. Another regulatory 
authority commenter indicated that cumulative hydrologic impact 
assessment reviews are done as a matter of course and updated as 
necessary. Industry commenters recognized that any data analysis may be 
done periodically, as determined by the regulatory authority, in the 
Annual Report, interim review, or other similar report or process. 
Commenters generally supported a requirement that allows the state 
regulatory authority discretion for determining when a cumulative 
hydrologic impact assessment needs to be updated. Although we recognize 
that some states do a good job with these updates, a periodic review of 
the cumulative hydrologic impact assessment data and conclusions must 
occur on a frequent basis to ensure that material damage to the 
hydrologic balance outside the permit area is not occurring or is 
likely to occur through the life of the permit. The absence of 
consistent cumulative hydrologic impact assessment reviews likely 
results in adverse trends that may persist to a point where corrective 
action options become limited, costly, or impossible. Regular review 
will allow the operation plan to be adjusted before corrective action 
is needed or options become too limited to adequately protect the 
hydrologic balance. We selected three year intervals for this review 
because that time period is not linked with permit renewal or mid-term 
review but is frequent enough to allow for detection of necessary 
changes in the mining and reclamation plan and/or needed corrective 
action to ensure protection of the hydrologic balance outside the 
permit area. This ensures that permit renewal and mid-term reviews are 
not contingent on the cumulative hydrologic impact assessment review.
Section 780.22: What information must I include in the hydrologic 
reclamation plan and what information must I provide on alternative 
water sources?
    Section 780.22 describes the information the operator must include 
in the hydrologic reclamation plan and the information that must be 
provided on alternative water sources. As discussed in the preamble to 
the proposed rule, we proposed to modify our regulations at Sec.  
780.22.\413\ In response to comments that we received, we have made 
several modifications.
---------------------------------------------------------------------------

    \413\ 80 FR 44436, 44526-27 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): Hydrologic Reclamation Plan
    This paragraph identifies the requirements the permit applicant 
must include in the hydrologic reclamation plan, including the maps and 
descriptions that demonstrate how the proposed operation will comply 
with the applicable provisions of subchapter K, that relate to 
protection of the hydrologic balance. We received a comment from a 
regulatory authority on proposed paragraphs (a)(2)(i) and (ii), 
requesting that we clarify the relationship between disturbances to the 
hydrologic balance in adjacent areas, which are allowable, and material 
damage to the hydrologic balance outside the permit area, which is not 
allowable. The regulatory authority also suggested that we define 
disturbances. We have defined material damage to the hydrologic balance 
outside the permit area in Sec.  701.5 and have provided a general 
discussion of material damage to the hydrologic balance outside the 
permit area in Part IV. L. of the preamble. Under our regulations as 
finalized today, any activity that adversely affects the hydrology of 
adjacent areas but that does not rise to the level of material damage 
to the hydrologic balance outside the permit area would be considered a 
disturbance subject to the minimization requirements of our rule. 
Consequently, although we appreciate the commenter's concern, it is not 
necessary to define ``disturbance,'' and we have not made any 
substantive changes to these paragraphs in the final rule. Importantly, 
these paragraphs retain the distinctions present in sections 510(b)(3) 
and 515(b)(10) of SMCRA.\414\ We did make minor revisions to clarify 
the applicability of the bonding sections to paragraphs (a)(2) and (4).
---------------------------------------------------------------------------

    \414\ 30 U.S.C. 1260(b)(3) and 1265(b)(10).

---------------------------------------------------------------------------

[[Page 93184]]

Final Paragraph (b): Alternative Water Source Information
    Several regulatory authority commenters expressed concern about 
proposed paragraph (b). One regulatory authority suggested that we 
delete the paragraph and retain the previous regulations. In 
particular, the regulatory authority did not like it that this 
provision invoked the alternative water source requirements for adverse 
effects to water sources ``within the proposed permit . . . area[ ].'' 
The commenter pointed out that there are always adverse impacts within 
the permit area. We are not accepting the suggestion to remove the 
entire paragraph (b) because this paragraph is necessary to clarify the 
water supply replacement requirements of sections 717(b) and 720(a)(2) 
of SMCRA.\415\ However, upon our own review of the rule language, we 
recognized that we erroneously included the phrase ``within the 
proposed permit area and adjacent area'' in paragraph (b)(1) of the 
proposed rule and are removing it from the final rule to ensure the 
regulations conform to section 717(b) and 720(a)(2), which do not 
contain this limiting phrase.
---------------------------------------------------------------------------

    \415\ 30 U.S.C. 1307(b) and 1309a(a)(2).
---------------------------------------------------------------------------

    Some of the other regulatory authority commenters asserted that in 
certain situations the regulatory authority already requires water 
supply infrastructure to be put in place in advance of mining to ensure 
uninterrupted service. It is good that some regulatory authorities are 
already ensuring that there will be no gap in the water supply as a 
result of mining. However, given the importance Congress has placed on 
protecting water supplies, this requirement should be applicable 
everywhere. The importance of protection water supplies was underscored 
in section 717(b) of SMCRA that requires that the operator of a surface 
coal mine replace the water supply of an owner of interest in real 
property who obtains all or part of his supply of water for domestic, 
agricultural, industrial, or other legitimate use from an underground 
or surface source where such supply has been affected by contamination, 
diminution, or interruption proximately resulting from such surface 
operation.\416\ Similarly, section 709(a) of SMCRA affords protections 
for water replacement as a result of underground mining operations 
requiring that underground coal mining operations must promptly replace 
any drinking, domestic, or residential water supply from a well or 
spring in existence prior to the application for a surface coal mining 
and reclamation permit, which has been affected by contamination, 
diminution or interruption resulting from underground coal mining 
operations.\417\ Thus, we are not removing paragraph (b)(1) from the 
final rule text, but have revised some of the text for the sake of 
clarity. For the sake of clarity, we also added paragraph (b)(1)(ii) to 
include the requirement for an implementation schedule as part of the 
water supply replacement plan. This additional requirement will help 
ensure that the water supply replacement plan developed by the operator 
is well planned and feasible. One regulatory authority suggested that 
we delete the word ``may'' in proposed paragraph (b)(3)(i). This 
paragraph requires that an alternative water supply be developed and 
installed on a permanent basis before the operation ``may'' adversely 
affect an existing water supply protected under the performance 
standards of final Sec.  816.40, which discusses the responsibility of 
an operator to replace water supplies. If there is a possibility that a 
coal-mining operation could adversely impact an existing water supply, 
an alternative water supply must be developed and installed on a 
permanent basis before the operation reaches a point where it could 
adversely affect that existing water supply. Although we do not agree 
with the commenter's concern about the use of ``may'' we have revised 
the text for the purpose of clarity and without using the word ``may'' 
in the revision. Therefore, within the final rule, paragraph (b)(3)(i) 
in the final rule reads, ``[w]hen a suitable alternative water source 
is available, your operation plan must require that the alternative 
water supply be developed and installed on a permanent basis before 
your operation advances to the point at which it could adversely affect 
and existing water supply protected under Sec.  816.40 of the 
chapter.''
---------------------------------------------------------------------------

    \416\ 30 U.S.C. 1307(b).
    \417\ 30 U.S.C. 1309a(a)(2).
---------------------------------------------------------------------------

    Other commenters expressed concern about the lack of regulatory 
authority discretion in the proposed rule to make a determination that 
a water supply could be adversely impacted. In addition, a commenter 
was concerned about the potential burden on industry, especially for 
underground operations, to replace all potentially impacted water 
supplies in advance of mining. The final rule mirrors the water 
replacement provisions located in previous Sec. Sec.  816.41(h) and 
817.41(j), which provide the regulatory authority the discretion to 
approve the probable hydrologic consequences determination that 
identifies specific water supplies that may be adversely affected and 
that would require an alternative source. The final rule does not 
require replacement of all potentially impacted supplies prior to any 
mining; however, the water must be replaced prior to the supply being 
adversely impacted. This provision guarantees that there will be no gap 
in the availability of water sources and that water sources remain 
available for use throughout the mining process. As long as this 
guarantee is met, the timing of when a specific alternative water 
source needs to be replaced is left to the discretion of the regulatory 
authority, as approved in the water supply replacement plan.
Section 780.23: What information must I include in plans for monitoring 
of groundwater, surface water, and the biological condition of streams 
during and after mining?
    As discussed in the preamble to the proposed rule,\418\ we proposed 
to modify our regulations at Sec.  780.23. This section describes what 
the operator must include in plans for monitoring of groundwater and 
surface water, and the biological condition of streams during and after 
mining. This includes annual biological monitoring of intermittent and 
perennial streams. In response to comments and based upon our further 
evaluation of the proposed rule, we have made several changes to the 
final rule.
---------------------------------------------------------------------------

    \418\ 80 FR 44436, 44505-44507 (Jul. 27, 2015).
---------------------------------------------------------------------------

    We have revised paragraph (a)(1)(i) and (b)(1)(i) to clarify that 
the monitoring plans for groundwater and surface water must include the 
locations of monitoring sites, the measurements that must be taken at 
each location, and a listing of the parameters to be monitored. This 
additional information will assist the review and analysis of the data 
obtained from monitoring by providing location and measurement context. 
Additionally, in final paragraphs (a)(1)(ii) and (b)(1)(iii), we have 
deleted ``for each parameter'' to be consistent with the changes made 
to final paragraphs (a)(1)(i) and (b)(1)(i).
Final Paragraph (a): Groundwater Monitoring Plan
    In the second sentence of Sec.  780.23(a)(1)(iii), we state that, 
at a minimum, the groundwater monitoring plan must include monitors in 
three types of locations. One commenter requested that we rephrase this 
sentence to require only that the groundwater monitoring plan 
``consider'' the placement of monitoring wells in these three types of 
locations because the

[[Page 93185]]

commenter alleges that some operators cannot establish monitoring sites 
at the locations specified in this section due to factors beyond their 
control, such as land ownership conflicts. We decline to make this 
change because it would, in effect, make the requirements of 
subparagraphs (A)-(C) about monitoring well placement discretionary. 
The groundwater sampling data collected as part of paragraph (a) is 
necessary for comparison with the groundwater data collected as part of 
Sec.  780.19, a comparison that will help identify any trends and 
changes in the groundwater conditions. We recognize that land ownership 
conflicts may present certain challenges. However, without minimum 
requirements for groundwater monitoring, the regulatory authority would 
have insufficient data to determine if material damage to the 
hydrologic balance outside the permit area has occurred. Therefore, we 
have determined that locating monitoring wells as required under 
paragraphs (a)(iii)(A) through (C) is necessary, despite potential 
difficulties associated with locating monitoring wells in different 
locations.
    Several commenters questioned the necessity of installing 
groundwater monitoring wells in aquifers located above and below the 
coal seam to be mined as proposed in paragraph (a)(1)(iii)(A), in 
backfilled portions of the permit area as proposed in paragraph 
(a)(1)(iii)(B), and in existing underground mine workings that are in 
direct hydrologic connection to the proposed operation as proposed in 
paragraph (a)(1)(iii)(C). The commenters considered monitoring above 
and below the coal seam unnecessary and expensive, and wells installed 
in the backfill and in underground mine workings to be of little value. 
Despite these comments, we have not removed these requirements because 
they are necessary to ensure that the coal mining operation, during and 
after mining, is not causing material damage to the hydrologic balance 
outside the permit area. Data collected from upgradient monitoring 
wells installed in aquifers located above and below the coal seam 
provide information on the condition of the groundwater entering the 
mine site. Comparison of this upgradient information to groundwater 
data obtained from downgradient monitoring wells as it exits the mine 
site will provide the mine operator and the regulatory authority 
insight into the effects of the mining activities on the quality and 
quantity of the groundwater as compared to offsite conditions. 
Monitoring wells installed in the backfill area and in the underground 
mine pools is necessary because these areas are the most likely sources 
of acid mine drainage if it develops. Therefore, we are retaining these 
requirements in the final rule.
    One commenter questioned whether the monitoring wells required 
under proposed Sec.  784.23(a)(1)(iii)(C) for mine pools that result 
from underground mining operations would be removed before final bond 
release and asserted that if they are not removed, it could become a 
safety issue. Data from hydrologically connected mine pools will 
provide both the permittee and the regulatory authority with necessary 
information to evaluate the efficacy of the probable hydrologic 
consequences determination and to evaluate conditions in the mine pools 
prior to final bond release; thus, we are retaining the requirement. 
However, we agree with the commenter that a monitoring well left after 
final bond release could become a safety issue if it is not transferred 
to the property owner because no one would be responsible for 
maintaining the well. When no longer needed, and with approval by the 
regulatory authority, monitoring wells must be permanently sealed or 
transferred to another party consistent with Sec. Sec.  816.13 and 
816.39 of this part. Therefore, because appropriate transfer or sealing 
of monitoring wells must already occur under final Sec. Sec.  816.13 
and 816.39, respectively, we do not need to make any changes to final 
Sec.  784.23 in response to this comment. Under paragraph 
(a)(1)(iv)(B), we now requiring that the monitoring data be used to 
determine the ``biology'' of the perennial and intermittent streams 
within the proposed permit and adjacent areas instead of the 
``biological condition'' of those streams. We made this change for the 
same reasons we articulated above in connection with final Sec.  
780.19(c)(6)(vi) through (viii): ``biology'' encompasses the type of 
information needed to establish both the biological condition of 
perennial and intermittent streams, for which established protocols 
exist and the biology of intermittent streams for which established 
protocols do not exist. This language change recognizes that not all 
states have scientifically valid protocols for assessing the biological 
condition of intermittent streams. We also made an editorial 
correction, by inserting ``proposed'' before permit and adjacent areas. 
During the development of the groundwater monitoring plan, the permit 
has not been issued yet and is part of the permit application. By 
inserting the word ``proposed'', final paragraph (a)(1)(iv)(B) now 
correctly reflects the status of the permit application process during 
compliance with this provision.
    Under final paragraphs (a)(2)(i) and (b)(2)(i), we replaced the 
text ``if those parameters relate to'' with ``to the extent needed to 
assess,'' in order to clarify that the parameters to be monitored under 
final paragraphs (a)(2)(i) and (b)(2)(i) must be sufficient to evaluate 
the requirements of paragraphs (a)(2)(i)(A), and (B) and (b)(2)(A)-(E). 
Furthermore, under paragraphs (a)(2)(i)(A) and (b)(2)(i)(B), we have 
added ``accuracy of the'' to stipulate that the purpose of the 
monitoring is to improve accuracy of the findings and predictions of 
the probable hydrologic consequences determination prepared under Sec.  
780.20.
    Under the final rule, we have deleted proposed paragraphs 
(a)(2)(i)(B) and (b)(2)(i)(D) regarding the requirement to monitor the 
parameters necessary to assess the biological condition of perennial or 
intermittent streams or other surface water bodies that receive 
discharges from groundwater within the proposed permit and adjacent 
areas. The remaining sections have been renumbered accordingly. The 
monitoring requirements in the deleted paragraphs were removed because 
the information they required was already accounted for in the 
monitoring requirements under final paragraphs (a)(2)(i)(A) and 
(b)(2)(i)(B), which require monitoring of parameters necessary to 
assess the accuracy of the findings and predictions in the probable 
hydrologic consequences determination under Sec.  780.20. In turn, 
Sec.  780.20(a)(5)(vii) states that the applicant must base the 
probable hydrologic consequences determination on an analysis of the 
baseline hydrologic, geologic, biological, and other information 
required under Sec.  780.19 and must include findings on the impact 
that the proposed operation will have on the biology of perennial and 
intermittent streams within the proposed permit and adjacent areas, 
except as provided in Sec.  780.19(g) of that part. Therefore, 
monitoring of parameters necessary to assess the accuracy of the 
findings and predictions of the probable hydrologic consequences 
determination would necessarily include monitoring of the biology, 
making proposed (a)(2)(i)(B) and (b)(2)(i)(D) redundant.
    We made several changes to final paragraphs (a)(2)(ii) and 
(b)(2)(ii). First, we revised the titles of these paragraphs to clarify 
that these sections contain the minimum requirements for sampling and 
analysis of groundwater and surface

[[Page 93186]]

water, respectively. Next, we clarified paragraphs (a)(2)(ii) and 
(b)(2)(ii) by deleting ``that the following parameters be measured at 
each location'' and replacing it with ``collection and analysis of a 
sample from each monitoring point.'' Finally, we added language to the 
end of paragraphs (a)(2)(ii) and (b)(2)(ii) to better introduce the 
data sampling and analysis requirements in (a)(2)(ii)(A) through (D) 
and (b)(2)(ii)(A) through (D).
    We also reduced redundancies in the rule by removing the breakout 
of specific parameters that must be collected and analyzed every 3 
months in proposed paragraphs (a)(2)(ii)(A) through (Q) and 
(b)(2)(ii)(B) through (S). These parameters are already listed in final 
Sec.  780.19(a)(2). Instead, final paragraphs (a)(2)(ii)(A) and 
(b)(2)(ii)(A) simply require that the data collected include an 
analysis of each sample for parameters listed in Sec.  780.19(a)(2). 
The remaining requirements have been re-lettered accordingly. For 
clarification purposes, under proposed paragraph (a)(2)(ii)(R), now 
final paragraph (a)(2)(ii)(B), we have added language that specifies 
that the reporting requirements apply to water levels for all wells and 
discharge rates for all springs or underground openings used for 
monitoring purposes. We have revised proposed paragraphs (a)(2)(ii)(S) 
and (b)(2)(ii)(T), now final paragraphs (a)(2)(ii)(C) and 
(b)(2)(ii)(C), respectively, for clarity. Final paragraphs 
(a)(2)(ii)(C) and (b)(2)(ii)(C) now more clearly state that the data 
required under this paragraph must include an analysis of all 
parameters detected in the baseline sampling conducted under Sec.  
780.19(d) of this part.
    Proposed paragraphs (a)(2)(ii)(T) and (b)(2)(ii)(U), now final 
paragraphs (a)(2)(ii)(D) and (b)(2)(ii)(D), respectively, have been 
modified to be consistent with the revisions made to the titles of 
these sections. Additionally, we have replaced the phrase ``parameters 
of local significance'' with the phrase ``other parameters of concern'' 
for consistency with the definition of ``parameters of concern'' 
included in final Sec.  701.5.
    Proposed paragraphs (a)(3)(ii) and (b)(3)(ii) included the 
sentence: ``[a]t a minimum, the plan must require monitoring of all 
parameters for which the regulatory has established a `material damage 
criteria' \419\ pursuant to the cumulative hydrologic impact 
assessment.'' We have revised and moved this requirement. It is now 
found in final Sec.  780.23(a)(2)(i) and (ii)(D) and states that the 
plan must require monitoring of all parameters for which the regulatory 
authority has established ``evaluation thresholds under Sec.  
780.21(b)(7) of this part.'' We chose to require monitoring for 
evaluation thresholds instead of material damage thresholds because, as 
set forth in final Sec.  780.21(b)(7), evaluation thresholds must be 
set for all critical water quality and quantity parameters. Evaluation 
thresholds under Sec.  780.21(b)(7) are values for water quality and 
quantity parameters that, when attained, will trigger reassessment of 
the probable hydrologic consequences determination and development of 
corrective measures, if necessary, to prevent material damage to the 
hydrologic balance outside the permit area. Monitoring of these 
critical parameters is thus crucial to detect whether hydrologic 
conditions are being affected by the mining operation in a manner that 
could cause an exceedance of the comparable material damage threshold 
if corrective action is not taken. Thus, any parameter for which there 
is an evaluation threshold set must be monitored; otherwise, the 
purpose of setting an evaluation threshold is not being achieved.
---------------------------------------------------------------------------

    \419\ ``Material damage criteria'' are referred to as ``material 
damage thresholds'' in the final rule. See final preamble discussion 
for section 780.21(b)(6).
---------------------------------------------------------------------------

    Commenters noted that ``water-bearing stratum,'' as used in 
proposed paragraph (a)(4), is a new term and is not defined. In 
response, in final paragraph (a)(4), we have replaced the term ``water-
bearing stratum'' with ``aquifer,'' a term that is defined in Sec.  
701.5. This change avoids using an undefined term but does not change 
the meaning of the paragraph.
    Several commenters requested, that, in order to better protect 
groundwater resources, we rescind the exception in paragraph (a)(4) 
from monitoring for aquifers that have no existing or foreseeable use 
for agricultural or other human purposes or for fish and wildlife 
purposes and that do not significantly ensure the hydrologic balance 
within the cumulative impact area. We decline to make this change. 
SMCRA requires monitoring ``for those surface coal mining and 
reclamation operations which remove or disturb strata that serve as 
aquifers which significantly insure the hydrologic balance of water use 
either on or off the mining site.'' \420\ Because SMCRA does not 
further define the qualities of aquifers that ``significantly insure 
the hydrologic balance,'' we have used our discretion to interpret this 
monitoring requirement to refer to aquifers that are or have an 
existing or foreseeable use for agricultural, human, or fish and 
wildlife purposes.
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    \420\ 30 U.S.C. 1267(b)(2).
---------------------------------------------------------------------------

    This exception also implements section 102(f) of SMCRA \421\ by 
striking a balance between the protection of the environment and 
supporting the Nation's need for coal by requiring ground water 
monitoring only where there is an existing or foreseeable use for 
agricultural, human, or fish and wildlife purposes, or where the 
aquifer significantly ensures the hydrologic balance within the 
cumulative impact area. Where a permit qualifies for the exemption in 
final (a)(4), the applicant can avoid monitoring costs, allowing 
resources to be available for other protection and enhancement measures 
that could have a more direct benefit to the environment.
---------------------------------------------------------------------------

    \421\ 30 U.S.C. 1202(f).
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Final Paragraph (b): Surface-Water Monitoring Plan
    For changes made to final paragraphs (b)(1)(i), (b)(1)(iii), 
(b)(2)(i), (b)(2)(ii), and (b)(3)(ii), please refer to the preamble 
discussion above in the corresponding paragraphs in final paragraph 
(a).
    Several commenters requested that we allow multiple permits to rely 
on data from a single self-recording device where the multiple permits 
are close enough to share data. These commenters alleged that allowing 
multiple operators to share the cost of a self-recording device could 
result in labor and equipment cost reductions. In response to these 
comments we have added final paragraph (b)(1)(ii)(C) to allow, at the 
discretion of the regulatory authority, a single self-recording device 
to provide precipitation monitoring data for multiple permits that are 
contiguous or nearly contiguous provided the device can provide 
adequate and accurate coverage of precipitation events occurring in 
that area.
    We removed the phrase ``for each parameter to be monitored'' in 
paragraph (b)(1)(iii). For additional information about this change, 
please refer to the preamble discussion above in final paragraph 
(a)(1)(ii).
    We revised paragraph (b)(1)(v)(B) to more thoroughly address 
concerns from commenters about the clarity of the proposed rule. This 
provision now requires the applicant to describe how the monitoring 
data will be used to determine the impacts of the operation ``upon the 
biology of perennial and intermittent streams, lakes, and ponds within 
the proposed permit and adjacent areas.'' For clarity we have 
substituted a reference to ``lakes'' and

[[Page 93187]]

``ponds'' for the reference in the proposed rule to ``other surface-
water bodies.'' We have discussed the substitution of ``biology'' for 
``biological condition'' to ``biology'' above in the preamble 
discussion of Sec.  780.19(c)(6)(vi) through (viii).
    A commenter questioned the need for the monitoring data required in 
proposed paragraph (b)(1)(v)(B) to determine the impacts of the 
operation on the biology of streams that will be mined through, 
alleging that this data is unnecessary. The commenter also alleged that 
this requirement contradicts SMCRA's requirement to minimize impacts 
within the permit boundary. We disagree that this data is unnecessary. 
The collection of data related to baseline hydrologic and biologic 
conditions is necessary for the operator to make a determination 
whether restoration of the stream is possible as required in Sec. Sec.  
780.12, 780.27, 780.28, 816.56, and 816.57 of this chapter. In 
addition, it provides information on the quality and quantity of the 
surface waters prior to mining which will document the baseline 
conditions needed for determining whether stream restoration is 
successful.
    In final rule paragraph (b)(2)(i), we have deleted ``if those 
parameters relate to the'' and replaced it with ``to the extent needed 
to assess the . . . .'' Please see the preamble discussion at (a)(2)(i) 
for more discussion of this change. In the final rule, we have also 
deleted proposed paragraph (b)(2)(i)(D) which set out a requirement for 
monitoring of the biological condition of perennial or intermittent 
streams or other surface water bodies within the proposed permit and 
adjacent areas and have renumbered the remaining paragraphs 
accordingly. Please refer to the preamble discussion above in Sec.  
780.28(a)(2)(i)(B) for further information about this change.
    In the final rule, we revised proposed paragraph (b)(2)(i)(E), now 
final paragraph (b)(2)(i)(D), to clarify that the surface-water 
monitoring plan must include monitoring of those parameters necessary 
to assess the suitability of the quality and quantity of surface water 
for all designated uses under 303(c) of the Clean Water Act.\422\ We 
further revised this provision to specify that, if there are no 
designated uses associated with the surface water, the parameters for 
monitoring must be sufficient to assess all premining uses of the 
surface water. We have also clarified that these requirements apply 
both to surface water located within the proposed permit and to those 
in the adjacent areas. Similarly, we revised proposed paragraph 
(b)(2)(i)(F), now final paragraph (b)(2)(i)(E), to clarify the 
monitoring plan must include the parameters needed to assess the 
suitability of the quality and quantity of surface water to support the 
premining land uses both within the proposed permit and adjacent areas.
---------------------------------------------------------------------------

    \422\ 33 U.S.C. 1251(a) and 30 U.S.C. 1313(c).
---------------------------------------------------------------------------

    We have revised final paragraph (b)(2)(ii) for clarity. Please 
refer to the preamble discussion above on paragraph (a)(2)(ii) for more 
information. Proposed paragraph (b)(2)(ii)(A), now final paragraph 
(b)(2)(ii)(B), remains essentially unchanged except that we have 
clarified that flow rates must be obtained from each sampling location.
    We have revised proposed paragraphs (b)(2)(ii)(T) and (U), now 
final paragraphs (b)(2)(ii)(C) and (D) for clarity. For additional 
information, please refer to the preamble discussions above on final 
paragraphs (a)(2)(ii)(C) and (D).
    One commenter requested that we include a list of parameters in 
Sec.  780.23(b)(2)(iii), related to minimum requirements for point 
source discharges, including those parameters listed in proposed Sec.  
780.23(b)(2)(ii)(A) through (S). Conversely, another commenter did not 
want us to require all of the parameters referenced in Sec.  
780.23(b)(2)(ii) for point-source discharges, alleging that it would be 
outside of our authority under SMCRA. Monitoring requirements for 
point-source discharges are determined by Clean Water Act authorities 
under the National Pollutant Discharge Elimination System program. We 
do not have the authority under SMCRA to mandate what parameters must 
be included in National Pollutant Discharge Elimination System permits; 
therefore, we have made no changes to the final rule in response to 
these comments.
    A commenter stated that we should delete proposed paragraph 
(b)(2)(iii)(B) which requires the surface water monitoring plan to 
include the measurement of flow rates for point-source discharges. The 
commenter alleged that this paragraph supersedes section 402 Clean 
Water Act requirements \423\ by establishing criteria for flow 
measurements other than under National Pollutant Discharge Elimination 
System permits. We disagree with the commenter. Paragraph 
(b)(2)(iii)(A) of this section clearly states that monitoring of point-
source discharges must be in accordance with 40 CFR parts 122, 123, and 
434 and as required by the National Pollutant Discharge Elimination 
System permitting authority and the measurement of flow rates is 
required as part of the National Pollutant Discharge Elimination System 
permit. Therefore, the requirement to measure the flow rates does not 
supersede section 402 Clean Water Act; it is consistent with that Act. 
We have also prohibited the use of visual observations to measure flow 
rates. As we have stated elsewhere in this preamble, visual 
observations, by their very nature, lack precision and vary among 
observers. As such, they are not an objective measurement and cannot be 
reproduced.
---------------------------------------------------------------------------

    \423\ 33 U.S.C. 1342.
---------------------------------------------------------------------------

    We have provided additional language at the end of final paragraph 
(b)(2)(iv) to specify that the applicant must revise the surface-water 
monitoring plan to incorporate any site-specific monitoring 
requirements imposed by the National Pollutant Discharge Elimination 
System permitting or Clean Water Act authority subsequent to submission 
of the SMCRA permit application. We have added this provision to ensure 
that the applicant updates the SMCRA permit application as necessary 
with information that it has submitted in accordance with National 
Pollutant Discharge Elimination System permit requirements.
    We are adopting final paragraph (b)(3)(ii) as proposed except that 
we are requiring that the plan include monitoring of all parameters for 
which the regulatory authority has established evaluation thresholds 
under Sec.  780.21(b)(7) of this part. We explain this revision further 
at our preamble discussion for (a)(3)(ii).
Final Paragraph (c): Biological Condition Monitoring Plan
    Various commenters opposed the new biological condition monitoring 
plan requirements at proposed paragraph (c), alleging that the new 
requirements will be costly to comply with and do not offer clear 
guidance. Commenters specifically expressed uncertainty about the 
frequency and timing of monitoring under this paragraph. We acknowledge 
that the requirements at proposed paragraph (c), final paragraph (c), 
may contribute to increased monitoring costs. However, we have 
carefully evaluated the potential benefits of the information required 
by this provision and have determined that it is necessary to 
adequately determine the condition of the stream premining, during 
mining, and after mining. We find that the beneficial impacts of this 
information outweigh the costs and burdens to the operator and 
regulatory authority. With respect to the frequency of monitoring

[[Page 93188]]

during and after mining, the final rule within paragraph (c)(2)(iii) 
clarifies that the sampling frequency must be no less than annual and 
must not be so frequent as to deplete the populations being monitored.
    Some commenters opposed the requirement for the biological 
condition monitoring plan as proposed in paragraph (c), because of an 
alleged lack of available studies demonstrating that this type of 
monitoring is necessary for or appropriate to streams outside of 
Appalachia. We have determined that these requirements are necessary 
for and appropriate for mining operations throughout the country. 
Although we cite studies about Appalachia in support of our 
conclusions,\424\ the ability to obtain information through 
bioassessment protocols is currently available on international, 
national, regional, and state levels and the ability to establish 
effective baseline information for monitoring on all perennial streams, 
no matter the size, habitat type, or vegetative cover is attainable 
using the best technology currently available. Additionally, the U.S. 
Environmental Protection Agency authored the ``National Rivers and 
Streams Assessment.'' This assessment explains the minimum requirements 
for monitoring streams and is consistent with our final rule. Further, 
this assessment is scientifically defensible in the 48 conterminous 
states.\425\ As to the necessity of this monitoring, there are long-
standing examples of surface water impacts identified by SMCRA 
regulatory authorities across all coal bearing regions. While many of 
these effects are minor, they also often involve off-site impacts, and 
to minimize these off-site impacts using the best technology currently 
available, we are retaining these requirements. These baseline 
assessments of the biological condition of perennial streams where 
scientifically defensible protocols exist will allow for appropriate 
stream assessment and monitoring and will result in minimization of 
effects to fish, wildlife, and environmental resources consistent with 
the requirements of section 515(b)(24) of SMCRA.\426\ For further 
discussion of using scientifically defensible bioassessment protocols 
when monitoring streams please see the final preamble discussion in 
Sec.  780.19(c)(6).
---------------------------------------------------------------------------

    \424\ See, e.g., S.T. Larned, et al., Emerging concepts in 
temporary-river ecology. Freshwater Biology. pgs. 55, 717-738 
(2010).
    L.A. Beche, et al., Long-term seasonal variation in the 
biological traits of benthic-macroinvertebrates in two 
Mediterranean-climate streams in California, U.S.A. Freshwater 
Biology. pgs. 51: 56-75 (2006).
    A. Boulton and P. Lake. The ecology of two intermittent streams 
in Victoria, Australia III. Temporal changes in faunal composition. 
Freshwater Biology pgs. 27, 123-138 (1992).
    E. Bernhardt and M. Palmer. The environmental costs of 
mountaintop mining valley fill operations for aquatic ecosystems of 
the Central Appalachians. The Year in Ecology and Conservation 
Biology. Ann. N.Y. Acad. Sci. pgs. 39-57 (2011).
    C. Leigh and K. Fritz, Ecological research and management of 
intermittent rivers: An historical review and future directions. 
Freshwater Biology (2015).
    T. Nadeau and M. Cable Rains, Hydrological Connectivity Between 
Headwater Streams and Downstream Waters: How Science Can Inform 
Policy. Journal of the American Water Resources Ass'n, pgs. 43(1): 
118-133 (2007).
    \425\ U.S. Envtl. Prot. Agency. National Rivers and Streams 
Assessment 2013-2014: Field Operations Manual--Wadeable. EPA-841-B-
12-009b. Office of Water Washington, DC (2013), see also, U.S. 
Envtl. Prot. Agency, https://www.epa.gov/wqc/information-bioassessment-and-biocriteria-programs-streams-and-wadeable-rivers 
(last accessed Nov. 1, 2016).
    \426\ 30 U.S.C. 1265(b)(24).
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    As stated in final Sec.  780.19(c)(6)(vii), the permittee must 
adhere to a bioassessment protocol approved by the state or tribal 
agency responsible for preparing the water quality inventory required 
under section 305(b) of the Clean Water Act,\427\ 33 U.S.C. 1315(b), or 
other scientifically-defensible bioassessment protocol accepted by 
agencies responsible for implementing the Clean Water Act. Through 
coordination with the U.S. Environmental Protection Agency, the U.S. 
Army Corps of Engineers, and state Clean Water Act authorities, 
publications and additional information on applicability and region-
specific bioassessment protocols can be provided for SMCRA regulatory 
authorities to establish appropriate biological condition monitoring 
plans consistent with the required use of scientifically-defensible 
bioassessment protocols. For further information on bioassessment 
protocols, please refer to the preamble discussion of paragraphs (vi) 
through (viii) of final Sec.  780.19(c)(6).
---------------------------------------------------------------------------

    \427\ 33 U.S.C. 1315(b).
---------------------------------------------------------------------------

    Many commenters supported the requirement to monitor the effects of 
the mining operation upon the biological condition of intermittent and 
perennial streams, noting that biological monitoring is necessary to 
assess the effects of mining operations on fish, wildlife, and related 
environmental resources as well as to determine whether material damage 
to the hydrological balance outside the permit area is occurring. Other 
commenters opposed monitoring the effects of the mining operation upon 
the biological condition of streams and recommended that we eliminate 
this requirement from the rule. Commenters opposing the biological 
condition monitoring requirement alleged that, because only one sample 
is taken per year, the information gathered will not be helpful in 
determining, in a timely manner, whether corrective actions are 
necessary. While these commenters are correct that this sampling is 
only required annually, additional samples can be taken as long as the 
additional sampling will not deplete the populations of species being 
monitored. Additionally, the information obtained from the biological 
condition monitoring plan should be evaluated alongside the other parts 
of the water monitoring requirements, such as the surface-water and 
groundwater monitoring requirements of paragraphs (a) and (b). Taken 
together, the once-a-year biological condition monitoring and the other 
more frequent monitoring requirements of paragraphs (a) and (b), will 
allow the regulatory authority to have the data necessary to identify 
trends that indicate that an operation is at risk of causing material 
damage to the hydrologic balance outside the permit area. Therefore, we 
are retaining the requirement for biological condition monitoring 
because it is necessary to determine whether material damage to the 
hydrological balance outside the permit area is occurring, as well as 
to assess the effects of mining operations on fish, wildlife, and 
related environmental resources.
    These commenters also asserted that biological condition monitoring 
does not identify the cause of the impacts and could reflect impacts 
not associated with the mining operations, such as logging, farming, 
livestock, irrigation, natural variation, or unusual flow events. We 
agree that in certain instances, such as those listed above, it is 
possible that the biological condition monitoring may show impacts that 
are not directly associated with the mining operations. However, as 
stated above, we intend for data obtained from the biological condition 
monitoring to be evaluated with the data obtained from surface-water 
and groundwater monitoring, not on a stand-alone basis. Evaluation of 
the data resulting from the three types of monitoring will allow the 
regulatory authority to determine if impacts to stream biology are 
related to the mining operation and if corrective action is needed to 
prevent the operation from causing material damage to the hydrological 
balance outside the permit area. This requirement provides applicants 
better protection against potential liability for environmental harm 
because the additional data will make it easier to determine whether 
the impact is a result of mining activities or activities unrelated to 
mining.

[[Page 93189]]

    Several commenters suggested that the biological condition 
monitoring plans in Sec. Sec.  780.23(c) and 784.23(c) should be 
prepared by a qualified ecologist or biologist. Because the 
requirements contained in final paragraph (c) and paragraphs (vi) 
through (viii) of final Sec.  780.19(c)(6) contain detailed 
requirements about what must be monitored and which scientific 
protocols are acceptable, it is not necessary to also have the plans be 
prepared by a qualified ecologist or biologist.
    We made minor clarifying revisions throughout final paragraph (c). 
Specifically, the phrase ``for which baseline biological condition data 
was collected under Sec.  780.19(c)(6)(iv) of this part'' has been 
added to paragraphs (c)(1) and (c)(2)(ii). This addition provides 
greater specificity as to the monitoring locations within the proposed 
permit and adjacent areas that the biological condition monitoring plan 
must include. Additionally, we updated the citation in final paragraph 
(c)(2)(i) to reflect changes we made to final Sec.  780.19.
Final Paragraph (d): Exceptions
    This paragraph lists exceptions to the requirements for monitoring 
groundwater, surface water and the biological condition of streams 
during and after mining. It provides the regulatory authority with the 
flexibility to modify the groundwater and surface water requirements of 
paragraphs (a) and (b) of this section and modify or waive the 
biological condition monitoring plan requirements of paragraph (c) of 
this section. As discussed below, we did not make any changes to this 
section in response to comments.
    One commenter recommended deleting proposed paragraph (d)(1), which 
provides the regulatory authority the discretion to modify groundwater, 
surface water, and biological condition monitoring plan requirements if 
the proposed permit includes only land eligible for remining. This 
commenter expressed concern that this provision could be abused through 
overuse and that biological condition monitoring should be waived only 
when a stream contains no valuable biological community. The commenter 
asserted that biological communities in these remined areas will be 
impacted and that merely conducting a baseline assessment of a stream's 
biological condition would not be sufficient. Many commenters expressed 
concern that, in some instances, pre-SMCRA unreclaimed mines have been 
left undisturbed for so long that the area has naturally revegetated 
and that any mining would re-disturb important plant communities, 
despite the fact that these areas might also contain unreclaimed 
abandoned mine features. We agree that, in some instances, unreclaimed 
areas that have naturally revegetated, may qualify for the exemption 
under final paragraph (d)(1). However, despite naturally revegetating 
and supporting a biological community, these sites are often still 
dangerous because of unreclaimed spoil piles, highwalls, and pits. 
Further, reclamation funds are severely limited and remining is often 
the only viable method of reclaiming previously mined areas, especially 
those that are far away from public roads or are not actively 
discharging acid-mine drainage.
    The exception at final paragraph (d)(1) applies only where the 
permit area consists solely of lands eligible for remining and the 
regulatory authority has determined that a less extensive monitoring 
plan is adequate to monitor the impacts. The applicant would also have 
to comply with final Sec.  785.25. Therefore, the exception cannot be 
invoked for every remining operation. With this exception we are 
attempting to encourage the mining of already disturbed sites, which 
will then be reclaimed in a manner that returns the land to a premining 
state or another appropriate postmining land use. While additional 
disturbances, and the potential for water quality impacts, would occur 
with any mining operation, reclaiming these sites to a more natural 
condition is the best alternative in the long term. This exception 
conforms to section 102(h) of SMCRA,\428\ by promoting the reclamation 
of mined areas left without adequate reclamation prior to the enactment 
of SMCRA. While a small percentage of previously mined areas may have 
naturally revegetated over decades, most of these sites, regardless of 
revegetation, continue to substantially degrade the quality of the 
environment, prevent or damage the beneficial use of land or water 
resources, and endanger the health or safety of the public. For these 
reasons, we are retaining the exception as proposed.
---------------------------------------------------------------------------

    \428\ 30 U.S.C. 1202(h).
---------------------------------------------------------------------------

    Several commenters also recommended that we allow the regulatory 
authority to waive biological condition monitoring requirements in 
other circumstances. Other commenters suggested that we defer to the 
Clean Water Act authority to determine if biological monitoring is 
necessary. In support of this position, these commenters assert, 
without any supporting evidence, that Clean Water Act authorities allow 
large municipal wastewater treatment plants to eliminate biological 
monitoring. We do not agree that the regulatory authority should have 
increased discretion to waive biological condition monitoring. As 
discussed above and in the preamble to the proposed rule,\429\ 
biological monitoring is generally necessary to determine whether 
material damage to the hydrologic balance outside the permit area is 
occurring and to assess the effects of mining operations on fish, 
wildlife, and related environmental resources. The biological condition 
monitoring plan is just one part of the water monitoring requirements 
under 780.23. Other parts of the water monitoring requirements, such as 
the surface water and groundwater monitoring requirements of paragraphs 
(a) and (b), determine whether corrective actions are necessary. Taken 
together, the once-a-year biological condition monitoring and the other 
more frequent monitoring requirements, will allow the regulatory 
authority to have the data necessary to identify trends that indicate 
that an operation is at risk of causing material damage to the 
hydrologic balance outside the permit area. Despite the importance of 
this data, the final rule, at (d)(1) and (d)(2), recognizes that there 
are some limited situations when biological condition monitoring would 
be unnecessary or unlikely to be helpful in detecting material damage 
to the hydrologic balance outside the permit area and the effects of 
mining operations on fish, wildlife, and related environmental 
resources. We do not find any other exceptions necessary or appropriate 
under SMCRA. We also do not agree that deference to a Clean Water Act 
authority is appropriate under this provision as paragraph (d) relates 
to all monitoring, not just the monitoring done pursuant to the Clean 
Water Act. It is the regulatory authority's responsibility to ensure 
that SMCRA's requirements are met, including those related to material 
damage to the hydrologic balance outside the permit area and fish, 
wildlife, and related environmental resources. Finally, municipal 
wastewater treatment plants are not subject the same requirements as 
surface coal mining and reclamation operations and the analogy to these 
facilities is not indicative or representative of SMCRA's requirements.
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    \429\ 80 FR 44436, 44469 (Jul. 27, 2015).

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[[Page 93190]]

Final Paragraph (e): Coordination With Clean Water Act Agencies
    This paragraph is being finalized as proposed with the exception 
that it has been reorganized for clarity. The statement ``make best 
efforts to'' was initially applied only to minimizing differences in 
monitoring locations and reporting requirements and sharing data to the 
extent practicable and consistent with each agency's mission, statutory 
requirements, and implementing regulations. Several commenters noted 
that coordinating with Clean Water Act agencies in a timely manner can 
be difficult if the regulatory authority does not receive responses 
from the Clean Water Act agencies. We agree and, in response to this 
comment, moved the statement ``make best efforts to'' to the first 
sentence of the paragraph, revising the section to read that the SMCRA 
regulatory authority must make its best effort to consult in a timely 
manner with the agencies responsible for issuing permits, 
authorizations, and certifications under the Clean Water Act, minimize 
differences in monitoring locations and reporting requirements, and 
share data to the extent practicable and consistent with each agency's 
mission, statutory requirements, and implementing regulations.
Section 780.24: What requirements apply to the postmining land use?
    One commenter opposed adoption of proposed Sec.  780.24 because, 
according to the commenter, previous Sec.  780.24 is sufficient. The 
commenter did not elaborate further. We disagree for the reasons 
discussed in the preamble to the proposed rule.\430\
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    \430\ 80 FR 44436, 44507-44508 (Jul. 27, 2015).
---------------------------------------------------------------------------

    Another commenter alleged that the proposed rule confuses land use 
and land capability. We disagree. Whenever sections 508(a)(2) and (3) 
and 515(b)(2) of SMCRA \431\ use the term ``capable'' or 
``capability,'' they do so in the context of land uses, as do our 
regulations.
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    \431\ 30 U.S.C. 1258(a)(2) and (3) and 1265(b)(2).
---------------------------------------------------------------------------

    The commenter also alleged that the preamble to proposed Sec.  
780.24 assumes that a change to a higher or better land use would be a 
change to a higher capability. According to the commenter, a change to 
a higher or better postmining land use may reduce the capability of the 
land to support other uses that it could previously support. We agree 
that implementation of certain postmining land uses would reduce the 
capability of the land to support other uses. For example, construction 
of industrial or commercial facilities as part of implementation of a 
commercial or industrial postmining land use would reduce the 
capability of the land to support fish and wildlife habitat or 
cropland. However, this principle applies regardless of whether a 
higher or better use is involved. Our rules do not seek to prevent this 
outcome. Instead, they require that the permittee reclaim the land to a 
condition in which it is capable of supporting the uses that the land 
was capable of supporting before any mining. If the land was capable of 
supporting both industrial and cropland uses prior to any mining, then 
the permittee must reclaim the mined land to a condition capable of 
supporting both industrial and cropland uses after mining and 
reclamation. Nothing in our rules prohibits implementation of the 
industrial land use before bond release, even if doing so reduces or 
effectively eliminates the site's capability to support cropland. Our 
rules, like section 515(b)(2) of SMCRA,\432\ merely require that the 
land be reclaimed to its premining capability until implementation of 
the postmining land use, which is not the responsibility of the 
permittee. Thus, our rules operate as a protective measure to ensure 
restoration of site capability in the event that the approved 
postmining land use is not implemented.
---------------------------------------------------------------------------

    \432\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    A few commenters alleged that the proposed rule would greatly limit 
postmining land use options and severely complicate the ability to 
obtain approval of higher or better uses. According to the commenters, 
the proposed rule thus would place an undue burden on the landowner and 
restrict landowner rights. We do not agree. In reality, the final rule 
would ease the requirements for obtaining approval of a proposed 
postmining land use that differs from the actual premining use, 
provided that the proposed use is a use that the land was capable of 
supporting prior to any mining. Proposed and final paragraphs 
(b)(1)(iii)(E) through (G) add three new demonstration and finding 
requirements for approval of alternative postmining land uses; i.e., 
higher or better uses that preclude restoration of the land to a 
condition capable of supporting the uses that it was capable of 
supporting before any mining. Those additional provisions are intended 
to ensure that restoration of the land to a condition capable of 
supporting the alternative postmining land use would not result in 
increased flooding on adjoining properties, preclude attainment of 
designated uses of surface water outside the permit area, or preclude 
actual premining uses of surface water outside the permit area. The 
latter two criteria are elements of the definition of ``material damage 
to the hydrologic balance outside the permit area in Sec.  701.5, while 
the first criterion is intended to protect downstream properties from 
flood damage, consistent with section 102(a) of SMCRA,\433\ which 
provides that one of the purposes of SMCRA is to protect society and 
the environment from the adverse effects of surface coal mining 
operations. None of the three new criteria place an undue burden on the 
landowner or unduly restrict landowner rights.
---------------------------------------------------------------------------

    \433\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

    The same commenters further alleged that adoption of the proposed 
rule would place a burden on state regulatory authorities by requiring 
significantly more time for review and inspection. We do not agree. As 
discussed in the preamble to the proposed rule,\434\ adoption of this 
rule will reduce the burden on both permit applicants and regulatory 
authorities by eliminating the requirement in our previous rules to 
process all proposed postmining land uses that differ from the 
premining use or uses as alternative postmining land uses. Under the 
proposed and final rules, the alternative postmining land use review 
process does not apply if the proposed postmining land use is a use 
that the site was capable of supporting before any mining, even if that 
land use is not that same as the current premining land use. The final 
rule includes no additional regulatory authority review and inspection 
requirements for this type of land use change. It is true that both 
proposed and final paragraphs (b)(1)(iii)(E) through (G) add three new 
demonstration and finding requirements for approval of alternative 
postmining land uses (higher or better uses). However, we anticipate 
that the additional burden associated with those demonstrations and 
findings will be more than offset by a reduction in the number of 
alternative postmining land use determinations required under the final 
rule compared to the previous rules.
---------------------------------------------------------------------------

    \434\ See 80 FR 44436, 44508-44509 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): What postmining land use information must my 
application contain?
    Proposed paragraph (a)(2) would require that each permit 
application include a discussion of the utility and capability of the 
reclaimed land to support a variety of other uses, including the uses 
that the land was capable of supporting before any mining, as 
identified under Sec.  779.22, regardless of the proposed postmining

[[Page 93191]]

land use. One commenter expressed concern that the proposed rule would 
result in an extensive list of current uses. Proposed paragraph (a)(2) 
would require more than a list of current uses--it would require a 
discussion of the utility and capability of the reclaimed land to 
support both those uses and the other uses that the land was capable of 
supporting before any mining. A separate regulation at Sec.  
779.22(a)(1) requires only a list of existing uses, consistent with 
section 508(a)(2)(A) of SMCRA,\435\ which provides that the application 
also must identify ``the uses existing at the time of application.'' To 
the extent that the commenter may have been concerned about a 
potentially unlimited suite of land uses, we note that our intent is to 
require identification and discussion only of those land use categories 
set forth in the definition of ``land use'' in Sec.  701.5.
---------------------------------------------------------------------------

    \435\ 30 U.S.C. 1258(a)(2)(A).
---------------------------------------------------------------------------

    The commenter further alleged that the proposed rule does not 
account for historical land use practices and capabilities resulting 
from agricultural practices. According to the commenter, the conversion 
of prairies to cropland and the installation of drainage ditches and 
drain tiles have altered the capability of the affected lands to 
support certain land uses. Nothing in the proposed or final rules would 
have the effect alleged by the commenter. Both proposed and final Sec.  
780.24(a)(2) require identification and discussion of the uses that the 
land was capable of supporting before any mining not at some time in 
the distant past before the advent of agriculture. It does not matter 
whether that capability is naturally occurring or the result of 
agriculture drainage projects or other human intervention.
    The commenter also alleged that the proposed rule differs from the 
statutory provision that it is intended to implement because section 
508(a)(2)(B) of SMCRA \436\ focuses on the capability of the land 
whereas the proposed rule changes the emphasis to the uses that the 
land was capable of supporting before any mining. According to the 
commenter, this change in emphasis is unnecessary and will not result 
in provision of any useful information.
---------------------------------------------------------------------------

    \436\ 30 U.S.C. 1258(a)(2)(B).
---------------------------------------------------------------------------

    We do not agree. Section 508(a)(3) of SMCRA \437\ provides the 
primary statutory authority for Sec.  780.24(a)(2), not, as the 
commenter alleges, section 508(a)(2)(B) of SMCRA. Sections 508(a) and 
(a)(3) of SMCRA require that the reclamation plan submitted as part of 
the permit application ``include, in the degree of detail necessary to 
demonstrate that reclamation required by the State or Federal program 
can be accomplished,'' a statement of ``the use which is proposed to be 
made of the land following reclamation, including a discussion of the 
utility and capacity of the reclaimed land to support a variety of 
alternative uses.'' In this context, the term ``alternative uses'' 
refers to the uses that the land was capable of supporting before any 
mining. Section 515(b)(2) of SMCRA \438\ requires that surface coal 
mining and reclamation operations ``restore the land affected to a 
condition capable of supporting the uses which it was capable of 
supporting prior to any mining, or higher or better uses of which there 
is reasonably likelihood.'' The information required by proposed 
paragraph (a)(2) is critical ``to demonstrate that reclamation required 
by the state or federal program can be accomplished,'' as required by 
section 508(a) of SMCRA, because it is needed to determine whether the 
proposed operation has been designed to comply with the performance 
standard in section 515(b)(2) of SMCRA.
---------------------------------------------------------------------------

    \437\ 30 U.S.C. 1258(a)(3).
    \438\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    However, in response to these and other comments concerned about 
the potential burden on regulatory authorities and relevance to 
permitting decisions, we have made two modifications to proposed 
paragraph (a)(2). First, final rule Sec.  780.24(a)(2) excludes prime 
farmland historically used as cropland. Under existing Sec.  
785.17(e)(1), the approved postmining land use for these prime 
farmlands must be cropland, so there is no discretion available in 
determining an appropriate postmining land use. Furthermore, lands 
reclaimed in accordance with prime farmland standards will be capable 
of supporting almost all other potential land uses by default. Second, 
we have limited the scope of final paragraph (a)(2) to include only the 
proposed postmining land use and the variety of uses that the land was 
capable of supporting before any mining. The proposed rule implied that 
the applicant had to discuss other uses in addition to these. We agree 
that information concerning any other potential postmining land use 
would not be relevant to the decision making process.
    Proposed paragraph (a)(4)(i) would require that each permit 
application include a copy of the comments concerning the proposed 
postmining land use that the applicant receives from the legal or 
equitable owner of record of the land surface. One commenter 
erroneously described this provision as a requirement for the 
regulatory authority to consult with the landowner on all proposed 
postmining land uses. The commenter did not indicate whether it thought 
that such consultation should be required, as it is for approval of 
higher or better uses. However, section 508(a)(3) of SMCRA requires 
only that the application include ``the comments of any owner of the 
surface.'' Proposed paragraph (a)(4)(i) is consistent with this 
statutory requirement and we are adopting it as final without change. 
The fact that SMCRA requires that the landowner have an opportunity to 
comment on the proposed postmining land use, however, implies that the 
regulatory authority must consider those comments, to the extent 
appropriate, when deciding whether to approve the proposed postmining 
land use.
    Proposed paragraph (a)(4)(ii) would require that each permit 
application include a copy of the comments concerning the proposed 
postmining land use that the applicant receives from state and local 
government agencies that would have to initiate, implement, approve, or 
authorize the proposed use of the land following reclamation. One 
commenter urged us not to apply this requirement when the premining and 
postmining land uses are the same. The commenter further alleged that 
the permit applicant would be unable to meet this requirement in states 
and localities that do not have planning or zoning entities.
    Section 508(a)(3) of SMCRA requires that the application include 
the comments of ``State and local governments or agencies thereof which 
would have to initiate, implement, approve or authorize the proposed 
use of the land following reclamation.'' There is no exception for 
situations in which the premining and postmining land uses are 
identical. In addition, there is no guarantee that state and local 
governments and agencies would not have a role in initiation, 
implementation, approval, or authorization of the postmining land use 
in those circumstances. Therefore, we are adopting proposed paragraph 
(a)(4)(ii) without change. However, nothing in that paragraph compels 
those governments or agencies to submit comments. Nor does that 
paragraph prohibit approval of the proposed postmining land use in the 
absence of comments from those governments or agencies. Consequently, 
the commenter's statement that the applicant would be unable to meet 
this requirement in states and localities that do not have planning or 
zoning entities has no basis.

[[Page 93192]]

    Numerous commenters opposed adoption of proposed paragraph 
(a)(6)(ii), which would have required that the permit applicant 
disclose any monetary compensation provided to the landowner in 
exchange for the landowner's agreement to an alternative postmining 
land use. Many commenters alleged that we have no authority to require 
disclosure of private contracts, with one commenter asserting that it 
would require the disclosure of proprietary and confidential business 
information. Other commenters asserted that the provision would be 
impossible to enforce. Some commenters opined that the required 
information is not relevant to whether the postmining land use change 
is likely to be achieved, nor is it information that the regulatory 
authority could use in reaching a decision on a request for approval of 
an alternative postmining land use. One commenter erroneously asserted 
that this provision would act as a prohibition on compensation and 
would illegally require the regulatory authority to adjudicate contract 
disputes. Another commenter urged us to respect the ability of 
landowners to determine how best to use their property after mining and 
to avoid unnecessary regulation of private real estate dealings where 
such regulation would provide no significant environmental or land use 
planning benefit.
    Another commenter alleged that the proposed rule would not be 
effective in addressing the core issue, which is the failure of 
regulatory authorities to make an independent and fact-based 
determination that the proposed change in land use meets statutory 
requirements. According to the commenter, compensation for landowner 
agreement to a postmining land use change could easily be disguised as 
something else and there is no reason to believe that disclosure of 
compensation would improve the quality of the decision-making process. 
Therefore, the commenter recommended that the monetary disclosure 
provision be deleted and replaced with a provision specifying that 
landowner consent alone is insufficient basis for approval of a 
proposed alternative postmining land use without further demonstrations 
of compliance with the criteria for approval of an alternative 
postmining land use.
    The commenter explained that, in her experience, some permittees 
have made payments or used other means to persuade landowners to concur 
with alternative postmining land uses that are not higher or better 
uses or for which there is no intent to implement. According to the 
commenter, under the previous rules, landowner consent was often given 
for uses that were neither higher nor better, that were improbable or 
impractical, and that sometimes were even undesirable for the 
landowner. The commenter further stated that regulators rely on 
landowner consent to an excessive degree to document whether the 
proposed postmining land use meets the statutory standards for approval 
as a higher or better use. The commenter cites a decision of 
Administrative Law Judge Harvey Sweitzer in Farrell Cooper Mining 
Company v. OSMRE, Docket No. 2013-1-R, September 30, 2015, as providing 
insight into the legal and economic forces that hinder proper land 
restoration following mining. According to the commenter, mining can 
alter landforms for the better, but the economics of mining also can 
push both permittees and surface owners to overestimate the need for, 
and utility of, such structures, resulting in the creation of 
impoundments too large to ever fill with water, losses of pastureland, 
retention of mining-related structures for industrial uses never 
realized, and creation of flat land in inaccessible areas where there 
is no need to such land. The commenter further stated that, as in the 
Farrell-Cooper decision, she had repeatedly observed legal instruments 
in which coal companies essentially contract upfront with surface 
owners to mandate their acquiescence in any future changes to landforms 
or land use that the permittee may seek to permit. The commenter also 
cited the Farrell-Cooper decision as documenting the failure of 
regulators to enforce their laws and regulations and make independent 
and factually supported findings because of deferral to landowner 
judgment.
    After considering these comments, we decided to adopt the approach 
recommended by the last comment discussed above. Specifically, we are 
not adopting proposed paragraph (a)(6)(ii). Instead, we revised 
proposed paragraph (b)(2)(ii) to include language clarifying that 
landowner consent alone is an insufficient basis for a regulatory 
authority finding that the applicant or permittee has made the 
demonstration needed for approval of a proposed alternative postmining 
land use. We agree with the commenter that this approach should be more 
effective in ensuring that both applicants and regulatory authorities 
consider all the criteria in paragraphs (b)(1)(i) through (iii) for 
approval of alternative postmining land uses rather than deferring to 
the professed wishes of the landowner. We also agree with the commenter 
that, while the regulatory authority must take the preferences of 
landowners into consideration when evaluating a proposed postmining 
land use, landowner consent is not probative of whether a proposed land 
use meets the criteria for approval.
Final Paragraph (b): What requirements apply to the approval of 
alternative postmining land uses?
    One commenter asserted that we should delete proposed paragraph 
(b)(1) because the preamble provides only anecdotal evidence to support 
the proposition that the current regulations are insufficient to 
reliably achieve proposed higher or better land uses. However, the 
commenter only provided arguments concerning paragraph (b)(1)(i), so we 
interpret the comment as being directed at only that subparagraph. 
Proposed paragraph (b)(1)(i) would require that the applicant 
demonstrate that there is a reasonable likelihood that a proposed 
alternative postmining land use will be achieved after mining and 
reclamation, as documented by, for example, real estate and 
construction contracts, plans for installation of any necessary 
infrastructure, procurement of any necessary zoning approvals, 
landowner commitments, economic forecasts, and studies by land use 
planning agencies. According to the commenter, it is impractical to 
expect long-term mining operations to present evidence such as real 
estate and construction contracts to support the proposition that the 
mined area will in fact achieve the proposed postmining land use years 
prior to the completion of reclamation activities.
    Moreover, our regulations do not require attainment of proposed 
alternative postmining land uses (higher or better uses) as the 
commenter appears to imply, but, consistent with the underlying 
statutory provision, they do require that the applicant demonstrate, 
and the regulatory authority find, that there is a reasonable 
likelihood that the proposed higher or better use will be achieved. 
Section 515(b)(2) of SMCRA \439\ requires that the permittee restore 
land affected by mining operations to a condition capable of supporting 
either the uses that it was capable of supporting prior to any mining 
or ``higher or better uses of which there is reasonable likelihood.'' 
Our proposed and final rules give fuller effect than our previous rules 
to this statutory provision by creating a clearer distinction between 
requirements applicable to proposed higher or better postmining land 
uses and requirements

[[Page 93193]]

applicable to proposed postmining land uses consisting of one or more 
of the uses that the site was capable of supporting prior to any 
mining.
---------------------------------------------------------------------------

    \439\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Our rules always have required a demonstration and finding that 
there is a reasonable likelihood of achieving a proposed alternative 
postmining land use, as does the statute. Proposed paragraph (b)(1)(i) 
differs from the previous rule only in that the proposed rule provides 
examples of how that demonstration and finding may be made. The list is 
not exhaustive, but it provides guidance on the type of documentation 
needed to make a good-faith demonstration and finding. If a permit 
applicant is unable to provide documentation of this nature, then there 
is no basis upon which the regulatory authority can make a finding that 
there is a reasonable likelihood of achieving the proposed postmining 
use, as the commenter implicitly acknowledges. When there is 
uncertainty about the reasonable likelihood of achieving a higher or 
better use, the applicant should propose a different postmining land 
use, one that the land was capable of supporting before any mining. If, 
at a later date, implementation of a higher or better use becomes more 
likely, the permittee may submit a permit revision application to 
change the postmining land use.
    The commenter also questioned the ability of regulatory authorities 
to evaluate the likelihood that real estate and construction contracts 
will ensure implementation of the postmining land use. However, the 
commenter provided no explanation of why this would be the case and we 
have no reason to believe that regulatory authorities lack this 
capability.
    Final paragraph (b)(1) differs slightly from proposed paragraph 
(b)(1) in that we replaced the phrase ``use or uses'' with ``uses'' for 
consistency with paragraph (a) and to emphasize that the default 
requirement is to restore the site to a condition in which it is 
capable of supporting the uses that it was capable of supporting before 
mining, not just the single use that existed prior to mining. The 
revised language is consistent with section 515(b)(2) of SMCRA,\440\ 
which requires that the land be restored ``to a condition capable of 
supporting the uses which it was capable of supporting prior to any 
mining.''
---------------------------------------------------------------------------

    \440\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    We revised proposed paragraph (b)(1)(iii)(D) by adding the word 
``tribal'' to the phrase ``Federal, State, or local law'' found in 
section 515(b)(2) of SMCRA. We consider this revision to be a 
clarification rather than a substantive change because we have always 
considered tribal law to be included in the statutory phrase.
    We revised proposed paragraph (b)(1)(iii)(E) to refer to changes in 
the size or frequency of peak flows that would cause an increase in 
flooding rather than an increase in damage from flooding as in the 
proposed rule. We made this change because determination of whether 
there would be an increase in flooding is easier and more feasible than 
a determination of whether there would be an increase in damage from 
flooding. The latter standard would require projection of future 
development downstream of the proposed permit area, which could be 
difficult and speculative.
    Final paragraphs (b)(1)(iii)(F) and (G) differ from their 
counterparts in the proposed rule in that we removed references to 
reasonably foreseeable uses of surface water and groundwater. The final 
rule no longer includes the term ``reasonably foreseeable uses'' in 
contexts other than protection of reasonably foreseeable surface land 
uses from the adverse impacts of subsidence. Our reasons for deletion 
of this term are twofold. First, the term appears in SMCRA only in 
section 516(b)(1), which requires that operators of underground mines 
adopt subsidence control measures to, among other things, maintain the 
value and reasonably foreseeable use of surface lands. Sections 717(b) 
and 720(a)(2) of SMCRA separately protect certain water uses. Second, 
numerous commenters opposed inclusion of the term ``reasonably 
foreseeable uses'' on the basis that it is too subjective, difficult to 
determine, and open to widely varying interpretations, which could 
result in inconsistent application throughout the coalfields.
    Final paragraphs (b)(1)(iii)(F) and (G) also differ from their 
counterparts in the proposed rule in that we clarified that these 
paragraphs apply only outside the permit area, consistent with section 
510(b)(3) of SMCRA,\441\ which applies the prohibition on material 
damage to the hydrologic balance only outside the permit area. We also 
removed all references to groundwater because these paragraphs pertain 
only to surface flows. In addition, we revised these paragraphs to 
track more closely the language concerning designated uses of surface 
water under the Clean Water Act in our definition of ``material damage 
to the hydrologic balance outside the permit area'' in Sec.  701.5. 
Finally, in response to comments from the U.S. Environmental Protection 
Agency, we replaced the term ``existing'' when referring to uses of 
surface water with ``any actual use of surface water outside the permit 
area before mining.'' This change is intended to avoid any confusion 
with the term ``existing uses'' under the regulations implementing the 
Clean Water Act.
---------------------------------------------------------------------------

    \441\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    One commenter expressed concern that proposed paragraph 
(b)(1)(iii)(F) could be an issue in the arid Southwest when the 
operation includes the construction of permanent impoundments that do 
not discharge. According to the commenter, the rule could be 
interpreted to mean that non-discharging impoundments are precluding 
downstream reaches from attaining their designated use even though the 
immediate downstream reaches are ephemeral. This situation could exist 
only if the runoff from a mine comprises a critical element of the flow 
necessary to support a designated use of surface water outside the 
permit area under section 303(c) of the Clean Water Act.\442\ We do not 
anticipate that such a situation would arise, given the infrequency and 
ephemeral nature of surface runoff in arid areas.
---------------------------------------------------------------------------

    \442\ 33 U.S.C. 1313(c).
---------------------------------------------------------------------------

    Another commenter stated that proposed paragraph (b)(2)(i) 
requiring the regulatory authority to consult with ``the landowner or 
the land management agency having jurisdiction over the lands to which 
the use would apply'' is vague and unnecessary because it does not 
explain what specifically the regulatory authority is to seek 
consultation on. The commenter opines that the regulatory authority 
only needs to know that the landowner has consented to the land use 
change. Further, the commenter states that our previous regulations 
require that consent be provided in writing and thus, the proposed 
paragraph is unnecessary. We disagree. In our experience landowners 
frequently discuss significant concerns about alternate postmining land 
uses when engaged by the regulatory authority. For this reason, 
consulting with the landowner is essential, particularly when assessing 
the ``reasonable likelihood'' that a change in land use will occur. 
Therefore, we are adopting this paragraph as proposed.
Final Paragraph (d): What restrictions apply to the retention of 
mining-related structures?
    Paragraph (d) establishes restrictions on the retention of mining-
related structures, other than impoundments and roads, for potential 
future use in support of the postmining land use. One

[[Page 93194]]

commenter asserted that we should not adopt proposed paragraph (d) 
because adoption is likely to lead to economic waste when structures 
that could have been utilized by successive landowners or tenants are 
torn down during reclamation. We find that the outcome posited by the 
commenter is unlikely to occur. Structures that are not used for 
postmining land use purposes are unlikely to be maintained by current 
or future landowners. As such, they rapidly become eyesores and 
attractive nuisances. Unused structures also prevent restoration of the 
land upon which they are sited to a condition capable of supporting the 
uses that the land was capable of supporting before any mining, as 
required by section 515(b)(2) of SMCRA. Therefore, we are adopting 
paragraph (d) as proposed, with the modifications discussed below.
    One commenter opposed the provisions in proposed paragraphs (d)(2) 
and (3) that effectively require that the land upon which a structure 
is sited be revegetated with native vegetation if the structure is 
removed because of a failure to implement the approved postmining land 
use during the revegetation responsibility period. According to the 
commenter, the land from which the structure was removed could be used 
for cropland or in some other manner that would not warrant planting of 
native vegetation. The commenter also noted that planting with native 
vegetation may not be consistent with the surface owner's land use 
intentions.
    Surface owner intentions are an important consideration, but they 
are not the exclusive criterion for selection of the species planted on 
land disturbed by mining operations. Section 515(b)(19) of SMCRA \443\ 
requires that lands disturbed by surface coal mining operations be 
revegetated with native species unless introduced species are desirable 
and necessary to achieve the postmining land use. Section 515(b)(20) of 
SMCRA \444\ provides an exception to that requirement for sites with a 
long-term, intensive agricultural postmining land use.
---------------------------------------------------------------------------

    \443\ 30 U.S.C. 1265(b)(19).
    \444\ 30 U.S.C. 1265(b)(20).
---------------------------------------------------------------------------

    However, we determined that the proposed rule's revegetation 
requirement was not fully in accord with the underlying statutory 
provisions discussed above because it did not clearly provide for the 
exceptions authorized by the statute. Therefore, in final 30 CFR 
780.24(d)(2) and (3), we are replacing the phrase ``establishing native 
vegetation in accordance with Sec.  816.111 of this chapter'' in the 
proposed rule with ``revegetating the site in accordance with the 
revegetation plan approved under Sec.  780.12(g) of this part for the 
permit area surrounding the site upon which the structure was 
previously located.'' Section 780.12(g) includes the exceptions allowed 
under paragraphs (b)(19) and (20) of SMCRA.
    One commenter expressed concern that proposed paragraph (d)(3) may 
not allow buildings left after reclamation to be sold. Nothing in the 
proposed or final rules would prohibit sale of a building. If the sale 
occurs before expiration of the revegetation responsibility period and 
the building continues to be used in support of the postmining land 
use, the building may remain on site. If the sale occurs before 
expiration of the revegetation responsibility period and the building 
is no longer used in support of the postmining land use, but is being 
used for some other purpose, the permittee may apply for a change in 
postmining land use for the land containing the building. If the sale 
occurs after final bond release for the land upon the building is 
sited, the sale and use of the building are no longer a concern under 
SMCRA because the land is no longer considered to be the site of a 
surface coal mining and reclamation operations subject to jurisdiction 
under SMCRA. Under all other circumstances, the buyer must remove the 
building unless it is used in support of the approved postmining land 
use.
Final Paragraph (e): What special provisions apply to previously mined 
areas?
    Several commenters noted that proposed paragraph (e) contained an 
erroneous cross-reference to 30 CFR 780.24(b))(1)(iv), which does not 
exist. One commenter alleged that adoption of proposed paragraph (e) 
without correction of the cross-reference would have the effect of 
prohibiting the regulatory authority from approving any alternative 
postmining land uses on previously mined land. The commenter also 
asserted that adoption of the proposed requirement for compliance with 
proposed paragraph (a) would create a significant disincentive to 
remining previously mined land because paragraph (a) requires 
restoration of the land to a condition in which it is capable of 
supporting the uses that it was capable of supporting before any 
mining. According to the commenter, compliance with this requirement is 
impossible if topsoil and subsoil was not salvaged prior to the initial 
mining.
    After evaluating these comments, we find that the commenters are 
correct. In addition, our review disclosed that the language of 
proposed paragraph (e) did not match the description of that paragraph 
in the preamble to the proposed rule. The preamble discussion 
accurately describes our intent, whereas the actual language of the 
proviso in proposed paragraph (e) does not. Therefore, we are not 
adopting the language of paragraph (e) set forth in the proposed rule. 
Instead, the language of paragraph (e) that we are adopting as part of 
this final rule is consistent with the description and discussion in 
the preamble to proposed paragraph (e).\445\ Specifically, we are 
replacing the phrase ``provided that you comply with paragraphs (a) and 
(b) of this section'' in the proposed rule with ``provided that 
restoration of the land to that capability does not require disturbance 
of land previously unaffected by mining.'' Final paragraph (e) does not 
include the limitations that would lead to the outcomes described by 
the commenter. It will not create a disincentive for remining.
---------------------------------------------------------------------------

    \445\ 80 FR 44436, 44510, 44608 (Jul. 27, 2015).
---------------------------------------------------------------------------

Section 780.25: What information must I provide for siltation 
structures, impoundments, and refuse piles?
    Section 780.25 as proposed, provides for safety enhancements 
related to siltation structures, impoundments, and refuse piles.\446\ 
We received a general comment supporting the proposed rule, 
particularly those related to safety enhancements, such as the planning 
for the stabilization of siltation structures, impoundments, and refuse 
piles. As discussed below, some commenters also suggested improvements. 
After evaluating all the comments, we made several modifications 
resulting in a final rule that addresses the concerns of commenters and 
improves the clarity of Sec.  780.25.
---------------------------------------------------------------------------

    \446\ 80 FR 44436, 44511-44513 (Jul. 27, 2015).
---------------------------------------------------------------------------

Final Paragraph (a): How do I determine the hazard potential of a 
proposed impoundment?
    For the purposes of clarity and to be consistent with other bureaus 
within the Department of the Interior, final paragraph (a) includes a 
table representing a simplified process of hazard classification. In 
response to the proposed rule, a commenter considered our reliance upon 
the U.S. Department of Agriculture Natural Resource Conservation 
Service's Technical Release No. 60, misplaced. The commenter noted 
that, within the Department of the Interior, the Technical Release No. 
60 has been superseded by the Federal Emergency Management Agency's 
hazard

[[Page 93195]]

classifications. There is little difference between the two 
classification systems, but to be consistent, we are incorporating the 
classification table in the Federal Emergency Management Agency's 
Federal Guidelines for Dam Safety, Hazard Potential Classification 
System for Dams in the final rule. The table characterizes the hazard 
potential of a dam as ``low,'' ``significant,'' or ``high.'' In 
addition, the nature of the hazard is considered--with the primary 
consideration being the potential for human mortality. Additionally, 
because SMCRA mandates protection of the environment as well as the 
public, the potential for environmental or ``lifeline losses'' is also 
considered. ``Lifeline losses'' refer to disruption of important public 
utilities, some of which could result in risk to the public. For 
example, disruption of highways, waterlines, or communications could 
interfere with police, fire, or ambulance services. Major railroads and 
highways are included in this category due to the impact of their 
disruption on large numbers of people. A feature of the system is that 
it is used only for hazard classification, and each agency or bureau is 
able to impose design, operation, and maintenance criteria that meet 
their specific needs. For example, within final paragraph (a), we are 
requiring applicants to use the Federal Emergency Management Agency 
hazard classification system, but we impose the additional requirements 
detailed within the remainder of Sec.  780.25.
Final Paragraph (b): How must I prepare the general plan for proposed 
siltation structures, impoundments, and refuse piles?
    As a result of the adoption of the hazard potential classification 
system for dams within paragraph (a) of the final rule, we have 
relocated the explanation of general plan requirements for proposed 
siltation structures, impoundments, and refuse piles, discussed at 
paragraph (a) within the proposed rule, to paragraph (b) of the final 
rule.
    Some commenters raised concerns that this section blurs the 
distinction between typical sediment structures and structures that 
satisfy the Mine Safety and Health Administration criteria and imposes 
unreasonable evaluation and design criteria on sediment structures. 
Specifically, these commenters questioned the requirement for 
geotechnical evaluation, including consideration of subsidence, on a 
small sediment structure designed to typically contain little or no 
water.
    We concur that extensive geotechnical evaluations as proposed in 
paragraph (a)(1)(iv) and now found in final paragraph (b)(4)(i), are 
not necessary for small structures in areas with 26.0 inches or less of 
average annual precipitation or for siltation structures. This is 
because such structures cannot impound sufficient water to pose a 
significant risk in the event of failure. Therefore, we have altered 
the final rule to grant exemptions for small structures in areas with 
less than 26.0 inches of annual precipitation, found at paragraph 
(b)(4)(ii)(A), and at paragraph (b)(4)(ii)(B), for siltation 
structures; as long as the structures do not meet the criteria in Sec.  
77.216(a) of this title \447\ or have a ``significant'' or ``high'' 
hazard potential as detailed in the hazard potential classification 
table within paragraph (a) of this section.
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    \447\ 30 CFR 77.216(a), Water, sediment, slurry impoundments and 
impoundment structures; general. Mine Safety and Health Admin., 
Dep't. of Labor.
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    Some commenters also claimed that the requirements in the proposed 
rule at paragraph (a)(1)(iv), now paragraph (b)(5)(i) in the final 
rule, are focused on regional issues, such as breakthroughs into 
underground workings and refuse piles, which are more common in the 
eastern portion of nation. These commenters asserted that this 
provision requires a large amount of additional and unnecessary design, 
permitting, and construction work for the small impoundments typical in 
western mines that generally pose little risk of failure or danger to 
the public. Similar to our discussion of the exemptions within final 
paragraph (b)(4), we concur that extensive evaluations of 
breakthroughs, as required in final paragraph (b)(5)(i) would not be 
necessary for small structures in areas with 26.0 inches or less of 
average annual precipitation or for siltation structures. Again, this 
is because such structures cannot impound sufficient water to pose a 
significant risk in the event of failure. We have provided exemptions 
in paragraphs (b)(5)(ii)(A) for structures in areas with less than 26.0 
inches of annual precipitation, and (b)(5)(ii)(B) for siltation 
structures; as long as the structures do not meet the criteria in 30 
CFR 77.216(a) or have a ``significant'' or ``high'' hazard potential 
under paragraph (a) of this section.
    The same commenter that generally supported the safety enhancements 
to Sec.  780.25 also specifically supported the inclusion of the 
requirement within the proposed rule at paragraph (a)(1)(v), now 
paragraph(b)(5)(i), that the general plan for each impoundment include 
an analysis of the potential for the impoundment to drain into 
subjacent underground mine workings and an analysis of the impacts of 
such drainage. We agree that prudent planning is appropriate; 
therefore, we are incorporating this requirement, as proposed, into the 
final rule.
    In paragraph (a)(1)(vi)(A) of the proposed rule, we included a 
requirement that the plan must include ``a certification statement that 
includes a schedule setting forth the dates when any detailed plans for 
structures that are not submitted with the general plan will be 
submitted to the regulatory authority.'' We have modified this 
requirement and reclassified it as paragraph (b)(6) in the final rule. 
We have removed the ``certification statement'' but required the plan 
include a schedule setting forth the dates when detailed design plans 
will be submitted to the regulatory authority.
Final Paragraph (c): How must I prepare the detailed design plan for 
proposed siltation structures, impoundments, and refuse piles?
    Proposed paragraph (a)(2) applied to structures that meet the 
criteria for ``Significant'' or ``High Hazard'' classification in 
accordance with the U.S. Department of Agriculture Natural Resources 
Conservation Service Technical Release 60 \448\ and the criteria of the 
Mine Safety and Health Administration's regulation at 30 CFR 77.216(a). 
Proposed paragraph (a)(3) applied to ``other structures,'' or 
structures not meeting these criteria.
---------------------------------------------------------------------------

    \448\ U.S. Dep't. of Agric., Natural Resources Conservation 
Serv., Earth Dams and Reservoirs, Technical Release No. 60 (July 
2005).
---------------------------------------------------------------------------

    We have reclassified proposed paragraphs (a)(2), relating to design 
plans for high hazard dams, significant hazard dams, and certain 
impounding structures to paragraph (c)(1), and (a)(3), relating to 
other structures, to paragraph (c)(2) within the final rule. 
Additionally, we have made clarifications and modifications to these 
sections. We have renumbered the paragraphs for clarity and to 
emphasize the distinctions between the two classifications.
    In addition to the reclassification of proposed rule (a)(2) to 
(c)(1) in the final rule, we have removed the references to the U.S. 
Department of Agriculture's Technical Release 60, hazard classification 
procedure from final paragraph (c)(1) and revised it to apply to 
structures that would have a significant or high hazard potential under 
paragraph (a) of final rule and, similar to the proposed rule, would 
satisfy the criteria of the Mine Safety and Health Administration's 
regulation at 30 CFR 77.216(a).

[[Page 93196]]

    Paragraphs (c)(1) and (c)(2) of the final rule both include 
requirements related to who may prepare plans. We have moved these from 
``general requirements'' and provided separate paragraphs for each to 
emphasize the distinctions between the levels of associated risk and 
design requirements. The structures within paragraph (c)(1) of the 
final rule are critical structures, the failure of which could result 
in significant loss of human life. Therefore, we have made the design 
plans for these structures subject to more stringent requirements, 
including that they be prepared by or under the direction of a 
registered professional engineer; or for structures covered in 
paragraph (c)(2), a licensed land surveyor. However, we note that all 
coal mine waste structures to which Sec. Sec.  816.81 through 816.84 
apply, must be designed by a registered, professional engineer even if 
such structures do not meet the hazard classification criteria of 
(c)(1). In addition, we are requiring that the engineer or land 
surveyor certify the plans. The engineer or land surveyor must have a 
documented history of experience with dams and impoundments. This is a 
new requirement; however, due to the potential for loss of life in the 
event of failure it is important that designers of these structures 
have, in addition to appropriate credentials, a documented history of 
pertinent experience.
    Paragraph (a)(3) of the proposed rule, now paragraph (c)(2), 
includes detailed design plan requirements for ``other structures.'' 
Similar to the detailed design plans for high hazard dams, significant 
hazard dams, and impounding structures, this paragraph details each of 
the requirements necessary for an adequate design plan for structures 
other than those enumerated in paragraph (c)(1). Additionally, within 
paragraph (c)(2)(i)(A), we included the requirement that the qualified 
registered professional engineer, or qualified registered professional 
land surveyor in states that allow land surveyors to design these 
structures, must be experienced in the design and construction of 
impoundments. Again, this is a new requirement. We recognize that 
although the hazard is inherently lower there is still a potential for 
loss of life. Therefore, utilizing experienced professionals is 
necessary. Paragraph (c)(2)(i)(B) also includes a requirement that all 
coal mine waste structures to which Sec. Sec.  816.81 through 816.84 of 
this chapter apply must be certified by a qualified, registered, 
professional engineer to ensure proper construction.
    One commenter questioned the requirement in proposed paragraph 
(c)(2), that the applicant submit the Mine Safety and Health 
Administration plan to the SMCRA regulatory authority and suggested 
that we delete it. This commenter alleged that this proposed 
requirement is unnecessarily confusing and meaningless because an 
incomplete plan would not be useful to the regulatory authority. The 
commenter suggested that the provision be either eliminated or revised 
to require the submission of the completed Mine Safety Health 
Administration impoundment plan through a permit revision. The 
commenter also noted that the Mine Safety and Health Administration 
plan is already subject to many layers of review and submitting it to 
the regulatory authority would be duplicative. In addition, the 
commenter noted that many of the procedures set out in the plan do not 
impact the environment and would not be relevant to a SMCRA review. We 
concur with the commenter and have removed the requirement within the 
final rule. It is not necessary for the applicant to submit plans 
required by the Mine Safety and Health Administration to the SMCRA 
regulatory authority because, even without those plans, the SMCRA 
regulatory authority can determine whether there are deviations from 
the SMCRA plans.
    We have moved the requirements that detailed plans not submitted 
with the permit application be submitted in accordance with a provided 
schedule and that they be submitted and approved before construction 
begins from paragraph (a)(1)(vi), under ``General requirements'' in the 
proposed rule, to paragraph (c)(3) ``Timing of submittal of detailed 
plans'' in the final rule. This was done because requirements for 
detailed plans were provided in the two previous paragraphs in the 
final rule: High hazard dams, significant hazard dams, and certain 
impounding structures in paragraph (c)(1) and other structures in 
paragraph (c)(2). We decided to address the issue of scheduling 
immediately after requirements for those plans were presented.
Final Paragraph (d): What additional design requirements apply to 
siltation structures?
    For the purpose of clarity, proposed paragraph (b), relating to 
siltation structures, has been reclassified and is found at paragraph 
(d) in the final rule.
Final Paragraph (e): What additional design requirements apply to 
permanent and temporary impoundments?
    For the purposes of clarity, proposed paragraph (c), relating to 
``permanent and temporary impoundments,'' has been modified and 
reclassified as paragraph (e) within the final rule. We removed the 
reference to the criteria for Significant Hazard Class or High Hazard 
Class dams in published by the U.S. Department of Agriculture, Natural 
Resources Conservation Service Technical Release No. 60. As discussed 
above, in connection with paragraph (a), we are requiring hazard 
classification to be done in accordance with the Federal Emergency 
Management Agency's hazard potential classification system.
    In proposed paragraph (c)(4), now (e)(3), we proposed a requirement 
that permittees of impoundments that will meet the Significant Hazard 
Class or High Hazard Class criteria for dams \449\ or satisfy the Mine 
Safety and Health Administration criteria of 30 CFR 77.216(a), include 
with each plan a stability analyses of the structure. One commenter 
stated that the Mine Safety and Health Administration already require 
these actions as part of their regulatory program and doing so here 
would be duplicative. The commenter also indicated that by adding this 
to the SMCRA permit we are implying that compliance with the Mine 
Safety and Health Administration provisions is not adequate. This 
commenter asserted that it is likely to cause inconsistency in 
requirements between the Mine Safety and Health Administration and the 
SMCRA regulatory authority. In general, the commenters requested that 
we remove the provision. We disagree. We are well within our statutory 
authority under section 515(f) of SMCRA \450\ to impose the 
requirements of paragraph (e)(3). Section 515(f) of SMCRA requires 
operators to follow standards and criteria that conform to standards 
and criteria used by engineers to ensure that flood control structures 
are safe and effectively perform their intended function. In addition, 
these requirements in no way supersede requirements imposed by the Mine 
Safety and Health Administration but are, in practice, complementary. 
Analyses required by the Mine Safety Health Administration are 
pertinent to individual stages of construction and are submitted 
piecemeal during construction. Those required by the SMCRA regulatory 
authority are

[[Page 93197]]

pertinent to the structure upon completion of all construction. The 
regulatory authority cannot, during the application review process, 
evaluate the potential impact of the completed structure without 
requiring and receiving analyses based on the final configuration. 
Therefore, in the final rule we now reference the hazard classification 
in paragraph (a) rather than the Natural Resources Conservation Service 
Technical Release No. 60. To the extent that duplication may exist 
between the two regulatory regimes, we encourage states to coordinate 
the processing of permit applications with the Mine Safety and Health 
Administration. For example, the states could perform side-by-side 
review of the analyses of initial stages submitted to Mine Safety and 
Health Administration and the final configuration submitted with the 
SMCRA permit application.
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    \449\ U.S. Dep't. of Agriculture, Natural Resources Conservation 
Serv. 2005. ``Earth Dams and Reservoirs'' Technical Release No.60 
(July 2005).
    \450\ 30 U.S.C. 1265(f).
---------------------------------------------------------------------------

Final Paragraph (f): What additional design requirements apply to coal 
mine waste impoundments, refuse piles, and impounding structures 
constructed of coal mine waste?
    In proposed paragraph (d)(2)(iv), now paragraph (f)(2)(iv) in the 
final rule, we require that impoundments and siltation structures be 
designed to ensure that at least 90 percent of the stormwater stored in 
the impoundment during the design precipitation event will be removed 
within a 10-day period. One commenter asserted that this requirement 
would need to be addressed in the National Pollutant Discharge 
Elimination System permit as well because it could impact mixing zone 
limits, loading limits, and whether the operation meets numerical 
effluent standards. This assertion appears to be based on a belief that 
greater than normal (stormwater) discharges equate to greater than 
normal loadings of parameters. We proposed this requirement for safety 
reasons as it is important to restore the stormwater storage capacity 
as quickly as possible to prepare for the possible occurrence of 
another significant event. Although the rate of discharge of water is 
greater than normal following a significant precipitation event, 
parameters with numerical effluent limits commonly defined in a 
National Pollutant Discharge Elimination System permit tend to be at 
low concentrations after a significant precipitation event, due to 
dilution, with the exception of suspended solids. Therefore