Federal Register: December 12, 2008 (Volume 73, Number 240)
DOCID: fr12de08-18 FR Doc E8-29150
DEPARTMENT OF THE INTERIOR
U.S. Customs and Border Protection
CFR Citation: 30 CFR Parts 780, 784, 816, and 817
Docket ID: [Docket ID No.: OSM-2007-0007]
RIN ID: RIN 1029-AC04
NOTICE: Part II
DOCID: fr12de08-18
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams
DATES: This rule is effective January 12, 2009. The incorporation by reference of the publication listed in the rule is approved by the Director of the Federal Register as of January 12, 2009.
DOCUMENT SUMMARY:
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are amending our regulations concerning stream buffer zones, streamchannel diversions, siltation structures, impoundments, excess spoil, and coal mine waste. Among other things, this rule requires that surface coal mining operations be designed to minimize the creation of excess spoil and the adverse environmental impacts of fills constructed to dispose of excess spoil and coal mine waste. We have revised the stream buffer zone rule to more closely reflect the underlying provisions of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), to adopt related permit application requirements, to require that disturbance of perennial and intermittent streams and their buffer zones generally be avoided unless it is not reasonably possible to do so, to identify exceptions to the requirement to maintain an undisturbed buffer zone for perennial and intermittent streams, and to clarify the relationship between SMCRA and the Clean Water Act.
SUMMARY:
Interior Department, Surface Mining Reclamation and Enforcement Office,
SUPPLEMENTAL INFORMATION
Table of Contents
I. What does SMCRA say about surface coal mining operations in or near streams?
II. What provisions of SMCRA form the basis for our stream buffer zone rules?
III. What is the history of our stream buffer zone rules?
A. Legislative History of SMCRA
B. Initial Regulatory Program
C. Permanent Regulatory Program (1979 Rules)
D. Permanent Regulatory Program Revisions (1983 Rules)
E. How has the 1983 stream buffer zone rule been applied and interpreted?
F. What rulemaking actions have we proposed to clarify the 1983 rule?
IV. What is the relationship between SMCRA and the Clean Water Act with respect to this rule?
V. How did we obtain public input?
VI. What general comments did we receive on the proposed rule?
A. We Should Discourage the Mining and Use of Coal as a Power Source Because of the Role That the Combustion of Coal Plays in Climate Change
B. We Should Withdraw the Proposed Rule and Enforce the 1983 Stream Buffer Zone, the Meaning of Which Is Clear as Written
C. We Should Not Adopt Any Rule That Facilitates Mountaintop Mining Operations or the Filling of Streams
D. We Should Ensure the Protection of Headwater Streams by Requiring Maintenance of an Undisturbed Buffer Between Mining Activities and Streams
E. We Have Not Accorded Sufficient Importance to the Environmental Protection Purposes of SMCRA
F. EPA Cannot Legally Concur With the Revised Stream Buffer Zone Rules Because They Violate the Clean Water Act
G. The Applicability of the Final Rules Should Be Limited to SteepSlope Areas and Mountaintop Removal Operations
H. The Stream Buffer Zone Rule Is Unnecessary and Should Be Removed in Its Entirety
VII. Why did we decide against applying the stream buffer zone rule to all waters of the United States (WOTUS)?
VIII. Sectionbysection analysis: How are we revising our rules?
A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans
B. Sections 780.25 and 784.16: Reclamation Plan: Siltation Structures, Impoundments, Refuse Piles, and Coal Mine Waste Impounding Structures
C. Sections 780.28 and 784.28: Activities in or Adjacent to Perennial or Intermittent Streams
D. Section 780.35: Disposal of Excess Spoil (Surface Mines)
E. Section 784.19: Disposal of Excess Spoil (Underground Mines)
F. Sections 816.11 and 817.11: Signs and Markers
G. Sections 816.43 and 817.43: Diversions
H. Sections 816.46 and 817.46: Siltation Structures
I. Sections 816.57 and 817.57: Activities in or Adjacent to Perennial or Intermittent Streams
J. Sections 816.71 and 817.71: General Requirements for Disposal of Excess Spoil
K. What Does the Phrase ``to the extent possible'' mean in these rules?
L. What does the phrase ``best technology currently available'' mean in these rules?
IX. Procedural Matters and Required Determinations
I. What does SMCRA say about surface coal mining operations in or near streams?
SMCRA contains three references to streams, two references to watercourses, and several provisions that indirectly refer to activities in or near streams.
Section 507(b)(10) \1\ requires that permit applications include ``the name of the watershed and location of the surface stream or tributary into which surface and pit drainage will be discharged.'' However, this provision has no relevance to miningrelated activities in or near streams or to the existing or proposed buffer zone rules. \1\ 30 U.S.C. 1257(b)(10). SMCRA, Pub. L. 9587, is codified at 30 U.S.C. 12011328. Thus, for example, SMCRA section 102 is codified at 30 U.S.C. 1202, SMCRA section 515 is codified at 30 U.S.C. 1265, and SMCRA section 516 is codified at 30 U.S.C. 1266.
Section 515(b)(18) requires that surface coal mining and reclamation operations ``refrain from the construction of roads or other access ways up a stream bed or drainage channel or in such proximity to such channel so as to seriously alter the normal flow of water.''
Section 516(c) requires the regulatory authority to suspend underground coal mining under permanent streams if an imminent danger to inhabitants exists. However, this provision is not relevant to a discussion of the stream buffer zone rules because, in response to litigation concerning the 1983 version of 30 CFR 817.57, we stipulated that ``this regulation is directed only to disturbance of surface lands by surface activities associated with underground mining.'' In re: Permanent Surface Mining Regulation Litigation IIRound II, 21 ERC 1725, 1741, footnote 21 (D.D.C. 1984).
Section 515(b)(22)(D) provides that sites selected for the disposal
of excess spoil must ``not contain springs, natural water courses or
wet weather seeps unless lateral drains are constructed from the wet
areas to the main underdrains in such a manner that filtration of the
water into the spoil pile will be prevented.'' In adopting this
provision, Congress could have chosen to exclude perennial and
intermittent streams (or other waters) from the scope of ``natural
water courses,'' but it did not do so. In addition, the fact that this
provision of the Act authorizes disposal of excess spoil in areas
containing natural watercourses, springs, and seeps further suggests
that Congress did not intend to prohibit placement of excess spoil in perennial or intermittent
[[Page 75815]]
streams. The term ``natural watercourses'' includes all types of
streamsperennial, intermittent, and ephemeral. Springs and seeps are
groundwater discharges. To the extent that those discharges provide
intermittent or continuous flow in a channel, they are included within
the scope of our definitions in 30 CFR 701.5 of ``intermittent stream'' and ``perennial stream,'' respectively. The definition of
``intermittent stream,'' which is based upon technical literature,
includes any ``stream or reach of a stream that is below the local
water table for at least some part of the year, and obtains its flow
from both surface runoff and ground water discharge.'' Furthermore, in
litigation under the Clean Water Act, the U.S. Court of Appeals for the
Fourth Circuit cited section 515(b)(22) of SMCRA as supporting the
statement in its decision that ``it is beyond dispute that SMCRA
recognized the possibility of placing excess spoil material in waters
of the United States even though those materials do not have a
beneficial purpose.'' See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003).
Section 515(c)(4)(D) provides that, in approving a permit application for a mountaintop removal operation, the regulatory authority must require that ``no damage will be done to natural watercourses.'' The regulations implementing this provision clarify that the prohibition applies only to natural watercourses ``below the lowest coal seam mined.'' See 30 CFR 824.11(a)(9). Furthermore, section 515(c)(4)(E) of the Act specifies that ``all excess spoil material not retained on the mountaintop shall be placed in accordance with the provisions of subsection (b)(22) of this section.'' By including this proviso, Congress recognized that not all excess spoil generated by mountaintop removal operations could be retained on benches or placed within the minedout area. And by crossreferencing section 515(b)(22), Congress authorized placement of excess spoil from mountaintop removal operations in natural watercourses, provided all requirements of section 515(b)(22) are met. In the steepslope terrain of central Appalachia, excess spoil typically can most feasibly be placed in valley fills.
In addition, the legislative history of section 515(f) of SMCRA indicates that Congress anticipated that coal mine waste impoundments would be constructed in perennial and intermittent streams:
In order to assure that mine waste impoundments used for the disposal of liquid or solid waste material from coal mines are constructed or have been constructed so as to safeguard the health and welfare of downstream populations, H.R. 2 gives the Army Corps of Engineers a role in determining the standards for construction, modification and abandonment of these impoundments.
* * * * *
Thus, the corps' experience and expertise in the area of design,
construction, maintenance, et cetera, which were utilized for
carrying out the congressionally authorized surveys of mine waste
embankments in West Virginia following the disastrous failure of the
mine waste impoundments on Buffalo Creek, is to be applied in order to prevent similar accidents in the future.
H. Rep. No. 95218; at 125 (April 22, 1977) (emphasis added).
Section 515(f) provides that
The Secretary, with the written concurrence of the Chief of Engineers, shall establish within one hundred and thirtyfive days from the date of enactment, standards and criteria regulating the design, location, construction, operation, maintenance, enlargement, modification, removal, and abandonment of new and existing coal mine waste piles referred to in section 515(b)(13) and section 516(b)(5). Sections 515(b)(13) and 516(b)(5) concern ``all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, or other liquid and solid wastes and used either temporarily or permanently as dams or embankments.'' (Emphasis added.) Sections 515(f), 515(b)(13), and 516(b)(5) do not specifically mention streams or watercourses.
However, the reference to dams and embankments, the requirement for the concurrence of the U.S. Army Corps of Engineers (for its expertise in dam construction and flood control), and the legislative history documenting that the 1972 Buffalo Creek flood was the driving force behind adoption of those SMCRA provisions demonstrate that Congress was aware that coal mine waste impoundments had been constructed in perennial and intermittent streams in the past and would be constructed there in the future. Furthermore, the fact that all three paragraphs specifically apply to both new and existing structures (rather than to just existing structures) implies that new structures would and could be built in streams under SMCRA. As mentioned in the legislative history, Congress' intent was to prevent a recurrence of the Buffalo Creek impoundment failure and to ensure that all coal mine waste impoundments either are or have been constructed in a manner that protects the safety of downstream residents. There is no indication that Congress intended to prohibit construction of those structures in perennial or intermittent streams.
Finally, sections 515(b)(11) and 516(b)(4) of the Act govern the
construction of coal refuse piles that are not used as dams or
embankments. While those paragraphs do not mention constructing refuse
piles in watercourses, neither do they prohibit such construction.
Because of the similarity of those piles to excess spoil fills, the
regulations implementing sections 515(b)(11) and 516(b)(4) incorporate
language similar to that of section 515(b)(22)(D) for the construction
of excess spoil disposal facilities. Specifically, the regulations at
30 CFR 816.83(a)(1) and 817.83(a)(1) allow the construction of non
impounding coal refuse piles on areas containing springs, natural or
manmade watercourses, or wetweather seeps if the design includes
diversions and underdrains. Not all areas containing springs,
watercourses, or wetweather seeps are perennial or intermittent
streams, but some are, which means that refuse piles may be constructed in streams.
II. What provisions of SMCRA form the basis for our stream buffer zone rules?
Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA served as the basis for all three previous versions (1977, 1979, and 1983) of the stream buffer zone rule with respect to surface mining activities. Those sections also serve as the basis for the revised rule at 30 CFR 816.57 that we are adopting today. Section 515(b)(10)(B)(i) requires that surface coal mining operations be conducted so as to prevent the contribution of additional suspended solids to streamflow or runoff outside the permit area to the extent possible using the best technology currently available. Section 515(b)(24) requires that surface coal mining and reclamation operations be conducted to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values ``to the extent possible using the best technology currently available.''
In context, section 515(b)(10)(B)(i) provides that the performance
standards adopted under SMCRA must require that surface coal mining and reclamation operations
(10) minimize the disturbances to the prevailing hydrologic
balance at the minesite and in associated offsite areas and to the
quality and quantity of water in surface and ground water systems
both during and after surface coal mining operations and during reclamation by
(A) * * *
[[Page 75816]]
(B)(i) conducting surface coal mining operations so as to
prevent, to the extent possible using the best technology currently
available, additional contributions of suspended solids to
streamflow, or runoff outside the permit area, but in no event shall
contributions be in excess of requirements set by applicable State or Federal law.
* * * * *
Section 515(b)(24) requires that surface coal mining and reclamation operations be conducted in a manner that
To the extent possible using the best technology currently available, minimize[s] disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve[s] enhancement of such resources where practicable.
The common thread in both provisions is the requirement for use of the best technology currently available to achieve the requirements of those provisions to the extent possible.
Paragraphs (b)(9)(B) and (11) of section 516 of SMCRA form the basis for the stream buffer zone rule at 30 CFR 817.57, which applies to surface activities associated with underground mines. Those provisions of section 516 are substantively equivalent to paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA, respectively, except that section 516(b)(9)(B) also includes the provisions found in section 515(b)(10)(E) regarding the avoidance of channel deepening or enlargement. In the remainder of this preamble, we often refer only to the section 515 paragraphs, with the understanding that, unless otherwise stated or implied by context, references to those paragraphs should be read as including their section 516 counterparts. III. What is the history of our stream buffer zone rules?
A. Legislative History of SMCRA
SMCRA does not establish or require a buffer zone for streams or other waters. In 1972, the U.S. House of Representatives passed a bill (H.R. 6482) that included a flat prohibition on mining within 100 feet of any ``body of water, stream, pond, or lake to which the public enjoys use and access, or other private property.'' This prohibition appeared in the counterpart to what is now section 522(e) of the Act. However, the bill never became law and the provision did not appear in subsequent versions of SMCRA legislation.
B. Initial Regulatory Program
As part of the regulations implementing the initial regulatory program under SMCRA, we adopted the concept of a 100foot buffer zone around intermittent and perennial streams as a means ``to protect stream channels from abnormal erosion'' from nearby upslope mining activities. See 30 CFR 715.17(d)(3) and 42 FR 62652 (December 13, 1977). The regulation reads as follows:
No land within 100 feet of an intermittent or perennial stream shall be disturbed by surface coal mining and reclamation operations unless the regulatory authority specifically authorizes surface coal mining and reclamation operations through such a stream. The area not to be disturbed shall be designated a buffer zone and marked as specified in Sec. 715.12.
The rule does not specify the conditions under which the regulatory authority may authorize operations within the buffer zone.
C. Permanent Regulatory Program (1979 Rules)
The original version of our permanent program regulations, as published on March 13, 1979, included more extensive stream buffer zone rules at 30 CFR 816.57 (for surface mining operations) and 817.57 (for underground mining operations). Specifically, the 1979 version of section 816.57 provided that no land within 100 feet of a perennial stream or a stream with a biological community shall be disturbed by surface mining activities, except in accordance with Sec. Sec. 816.43 816.44 [the stream diversion regulations], unless the regulatory authority specifically authorizes surface mining activities closer to or through such a stream upon finding that the original stream channel will be restored; and during and after the mining, the water quantity and quality from the stream section within 100 feet of the surface mining activities shall not be adversely affected. Paragraph (c) of the 1979 rule provided that a biological community existed if the stream at any time contained an assemblage of two or more species of arthropods or molluscan animals that were adapted to flowing water for all or part of their life cycle, dependent upon a flowing water habitat, reproducing or could reasonably be expected to reproduce in the water body where they are found, and longer than 2 millimeters at some stage of the part of their life cycle spent in the flowing water habitat.
The counterpart regulation for underground mining at 30 CFR 817.57 was identical except that it substituted the term ``surface operations and facilities'' for ``surface mining activities'' and clearly indicated that the restrictions were limited to ``surface areas.''
The preamble to the 1979 rules explains that the purpose of the revised rules was to implement paragraphs (b)(10) and (b)(24) of section 515 of the Act. 44 FR 15176, March 13, 1979. It states that ``[b]uffer zones are required to protect streams from the adverse effects of sedimentation and from gross disturbance of stream channels,'' but that ``if operations can be conducted within 100 feet of a stream in an environmentally acceptable manner, they may be approved.'' Id. In addition, it states that ``[t]he 100foot limit is based on typical distances that should be maintained to protect stream channels from sedimentation,'' but that, while the 100foot standard provides a simple rule for enforcement purposes, ``sitespecific variation should be made available when the regulatory authority has an objective basis for either increasing or decreasing the width of the buffer zone.'' Id.
D. Permanent Regulatory Program Revisions (1983 Rules)
In 1983, we revised the stream buffer zone rules to delete the requirement that the original stream channel be restored, to replace the biological community criterion for determining which nonperennial streams must be protected under the rule with a requirement for protection of all intermittent streams, and to add a requirement for a finding that the proposed mining activities will not cause or contribute to a violation of applicable state or federal water quality standards and will not adversely affect the environmental resources of the stream. See 48 FR 30312, June 30, 1983.
In 1983, we also adopted revised performance standards for coal preparation plants not located within the permit area of a mine. We decided not to apply the stream buffer zone rule to those preparation plants. See 30 CFR 827.12 and the preamble to those rules at 48 FR 20399, May 5, 1983.
The preamble to the 1983 stream buffer zone rules reiterates the general rationale for adoption of a stream buffer zone rule that we specified in the preamble to the 1979 rules. It identifies the reason for replacing the biological community threshold with the intermittent stream threshold as a matter of improving the ease of administration and eliminating the possibility of applying the rule to ephemeral streams and other relatively insignificant water bodies:
The biologicalcommunity standard was confusing to apply since
there are areas with ephemeral surface waters of little biological
or hydrologic significance which, at some time of the year, contain a biological community as defined by previous
[[Page 75817]]
Sec. 816.57(c). Thus, much confusion arose when operators attempted
to apply the previous rule's standards to springs, seeps, ponding areas, and ephemeral streams. While some small biological
communities which contribute to the overall production of downstream
ecosystems will be excluded from special bufferzone protection
under final Sec. 816.57(a), the purposes of Section 515(b)(24) of
the Act will best be achieved by providing a buffer zone for those
streams with more significant environmentalresource values.
48 FR 30313, June 30 1983. The preamble further states that ``[i]t is impossible to conduct surface mining without disturbing a number of minor natural streams, including some which contain biota'' and that ``surface coal mining operations will be permissible as long as environmental protection will be afforded to those streams with more significant environmentalresource value.'' Id. It further provides that the revised rules ``also recognize that intermittent and perennial streams generally have environmentalresource values worthy of protection under Section 515(b)(24) of the Act.'' Id. at 30312. In addition, the preamble notes that ``[a]lthough final Sec. 816.57 is intended to protect significant biological values in streams, the primary objective of the rule is to provide protection for the hydrologic balance and related environmental values of perennial and intermittent streams.'' Id. at 30313. It further states that ``[t]he 100foot limit is used to protect streams from sedimentation and help preserve riparian vegetation and aquatic habitats.'' Id. at 30314.
We also stated that we removed the requirement to restore the original stream channel in deference to the streamchannel diversion requirements of 30 CFR 816.43 and 817.43 and to clarify that there does not have to be a stream diversion for mining to occur inside the buffer zone. Id.
Finally, the preamble states that we added the finding concerning ``other environmental resources of the stream'' to clarify ``that regulatory authorities will be allowed to consider factors other than water quantity and quality in making bufferzone determinations'' and ``to provide a more accurate reflection of the objectives of Sections 515(b)(10) and 515(b)(24) of the Act.'' Id. at 30316.
Revised 30 CFR 816.57(a) (1983) provided that ``[n]o land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream.'' The rule further provided that the regulatory authority may authorize such activities only upon finding that surface 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; and if there will be a temporary or permanent streamchannel diversion, it will comply with Sec. 816.43.
The 1983 version of the stream buffer zone rule for underground mining at 30 CFR 817.57 is identical except for substitution of the term ``underground mining activities'' for ``surface mining activities.''
The National Wildlife Federation challenged this regulation as being inconsistent with sections 515(b)(10) and (24) of the Act, primarily because it deleted the biological community threshold for stream protection. However, the court rejected that challenge, finding without elaboration that the ``regulation is not in conflict with either section 515(b)(10) or 515(b)(24).'' In re: Permanent Surface Mining Regulation Litigation IIRound II, 21 ERC 1725, 17411742 (D.D.C. 1984).
The court also noted that the Secretary had properly justified the rule change on the grounds that the previous rule was confusing and difficult to apply without protecting areas of little biological significance. Unfortunately, the new criterion (intermittent streams) has proven as difficult to apply as the biological community standard that it replaced. The definition of ``intermittent stream'' in 30 CFR 701.5 has two parts, separated by an ``or.'' The first part defines all streams with a drainage area of one square mile as intermittent. This part of the definition is the aspect that was litigated and upheld for its clarity of application. However, the second part of the definition includes all streams and stream segments that are below the local water table for part of the year and that derive at least part of their flow from groundwater discharge. This part of the definition has been more difficult to apply in practice. In fact, some States use biological criteria for making that determination.
Industry also challenged 30 CFR 817.57(a) to the extent that it
included all underground mining activities. However, industry withdrew
its challenge when the Secretary stipulated that the rule would apply
only to surface lands and surface activities associated with underground mining. See footnote 21, id. at 1741.
E. How has the 1983 stream buffer zone rule been applied and interpreted?
Historically, we and the State regulatory authorities have 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. However, as
discussed at length in the preamble to the January 7, 2004 proposed
rule (69 FR 10381042), which we never finalized, there has been
considerable controversy over the proper interpretation of both the
Clean Water Act and our 1983 rules as they apply to the placement of
fill material in or near perennial and intermittent streams. As
evidenced by past litigation and the comments that we received on the proposed rule that we published on August 24, 2007, some
interpretations of our 1983 rule are at odds with the underlying provisions of SMCRA.
We first placed our interpretation of the 1983 stream buffer zone rules in writing in a document entitled ``Summary ReportWest Virginia Permit ReviewVandalia Resources, Inc. Permit No. S200798.'' According to our annual oversight reports for West Virginia for 1999 and 2000, that document stated that the stream buffer zone rule does not apply to the footprint of a fill placed in a perennial or intermittent stream as part of a surface coal mining operation. On June 4, 1999, in West Virginia Highlands Conservancy v. Babbitt, Civ. No. 1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that document, alleging that it constituted rulemaking in violation of the Administrative Procedure Act. In an order filed September 23, 1999, the court approved an unopposed motion to dismiss the case as moot.
In a lawsuit filed in the U.S. District Court for the Southern
District of West Virginia in July 1998, plaintiffs asserted that the
stream buffer zone rule allows mining activities through or within the
buffer zone for a perennial or intermittent stream only if the
activities are minor incursions. They argued that the rule did not
allow substantial segments of the stream to be buried underneath excess
spoil fills or other miningrelated structures. On October 20, 1999,
the district court ruled in favor of the plaintiffs on this point,
holding that the stream buffer zone rule applies to all segments of a
stream, including those segments within the footprint of an excess
spoil fill, not just to the stream as a whole. The court also stated
that the construction of fills in perennial or intermittent streams is inconsistent with the language of 30 CFR
[[Page 75818]]
816.57(a)(1), which provides that the regulatory authority may
authorize surface mining activities within a stream buffer zone only
after finding that the proposed activities ``will not adversely affect
the water quantity and quality or other environmental resources of the
stream.'' See Bragg v. Robertson, 72 F. Supp. 2d 642, 660663 (S.D. W. Va., 1999).
The U.S. Court of Appeals for the Fourth Circuit ultimately reversed the district court on other grounds (lack of jurisdiction under the Eleventh Amendment to the U.S. Constitution) without reaching the merits of the district court's holding on the applicability of the stream buffer zone rule. Bragg v. West Virginia Coal Association, 248 F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
In a different case, the same district court stated that SMCRA and the stream buffer zone rule do not authorize disposal of overburden in streams: ``SMCRA contains no provision authorizing disposal of overburden waste in streams, a conclusion further supported by the buffer zone rule.'' Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927, 942 (S.D. W. Va. 2002).
The U.S. Court of Appeals for the Fourth Circuit subsequently rejected the district court's interpretation, stating that ``SMCRA does not prohibit the discharge of surface coal mining excess spoil in waters of the United States.'' Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003). The court further stated that ``it is beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States even though those materials do not have a beneficial purpose.'' Id. at 443.
The court explained the basis for its statements as follows:
Section 515(b)(22)(D) of SMCRA authorizes mine operators to
place excess spoil material in ``springs, natural water courses or
wet weather seeps'' so long as ``lateral drains are constructed from
the wet areas to the main underdrains in such a manner that
filtration of the water into the spoil pile will be prevented.'' 30
U.S.C. Sec. 1265(b)(22)(D). In addition, Sec. 515(b)(24) requires
surface mine operators to ``minimize disturbances and adverse impacts of the operation on fish, wildlife, and related
environmental values, and achieve enhancement of such resources
where practicable,'' implying the placement of fill in the waters of
the United States. 30 U.S.C. Sec. 1265(b)(24). It is apparent that
SMCRA anticipates the possibility that excess spoil material could
and would be placed in waters of the United States, and this fact
cannot be juxtaposed with Sec. 404 of the Clean Water Act to
provide a clear intent to limit the term ``fill material'' to material deposited for a beneficial primary purpose.
Id. at 443.
The preamble to the proposed rule that we published on January 7,
2004, but which we never adopted in final form, contains additional
discussion of litigation and related matters arising from the 1983
stream buffer zone rules. See especially Part I.B.1. at 69 FR 1038 1040.
F. What rulemaking actions have we proposed to clarify the 1983 rule?
On January 7, 2004 (69 FR 1036), we proposed to revise our stream buffer zone rules to retain the prohibition on disturbance of land within 100 feet of a perennial or intermittent stream, but alter the findings that the regulatory authority must make before granting a variance to this requirement. The revised rule would have replaced the Clean Water Actoriented findings in the 1983 rule with a SMCRAbased requirement that the regulatory authority find in writing that the activities will, to the extent possible, use the best technology currently available to prevent additional contributions of suspended solids to the section of stream within 100 feet downstream of the mining activities and outside the area affected by mining activities; and minimize disturbances and adverse impacts on fish, wildlife, and other related environmental values of the stream. The proposed rule also would have required that operations be designed to minimize the creation of excess spoil.
Numerous commenters asked us to consider other alternatives to the proposed rule. Some commenters also asked that we prepare an environmental impact statement (EIS) on the proposed action. On June 16, 2005 (70 FR 35112), we announced our intent to prepare an EIS on the proposed rule changes. We also stated that we intended to consider additional alternatives and to publish a new proposed rule to coincide with the release of a draft EIS.
On August 24, 2007 (72 FR 48890), we published a new, extensively revised proposed rule and a notice of availability of the draft EIS. That proposed rule replaced the one we published on January 7, 2004. The August 24, 2007, proposed rule forms the basis for the final rule that we are adopting today. This final rule is intended to clarify the scope and meaning of the stream buffer zone rule, consistent with underlying statutory authority, and to ensure that regulatory authorities, mine operators, other governmental entities, landowners, and citizens all can have a common understanding of what the stream buffer zone rule does and does not require. The final rule also includes additional permitting requirements intended to ensure that operations are designed to minimize the creation of excess spoil and to require consideration of alternatives to the disposal of excess spoil and coal mine waste in perennial or intermittent streams or their buffer zones to minimize the adverse impacts on fish, wildlife, and related environmental values to the extent possible using the best technology currently available.
The revised stream buffer zone rule that we are adopting today attempts to minimize disputes and misunderstandings associated with application of the 1983 rule. The revised rule distinguishes between those situations in which maintenance of an undisturbed buffer between mining and reclamation activities and a perennial or intermittent stream constitutes the best technology currently available to implement the underlying statutory provisions (sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B) and (11) of SMCRA) and those situations in which maintenance of a buffer is neither feasible nor appropriate. IV. What is the relationship between SMCRA and the Clean Water Act with respect to this rule?
In this final rule, we are adding paragraph (f) of sections 780.28
and 784.28 and paragraph (d) of sections 816.57 and 817.57 to clarify
the relationship between SMCRA and the Clean Water Act with respect to
activities conducted in or near perennial and intermittent streams. We
are adopting these paragraphs to address concerns arising from the fact
that this final rule removes language that previously appeared in
sections 816.57(a) and 817.57(a) that specifically prohibited the
conduct of mining activities within 100 feet of a perennial or
intermittent stream unless the regulatory authority found that those
activities would not cause or contribute to the violation of applicable
State or Federal water quality standards and would not adversely affect
the water quantity and quality or other environmental resources of the
stream. We are removing that requirement because its language more
closely resembles the Clean Water Act than the underlying provisions of
SMCRA. See Parts II, VIII.C., and VIII.I. of this preamble for further
discussion of sections 780.28, 784.28, 816.57, and 817.57 and the provisions of SMCRA
[[Page 75819]]
that provide the basis for the stream buffer zone rule.
None of the revisions to the stream buffer zone rule or other 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
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.
30 U.S.C. 1292(a).
In interpreting this statutory provision with respect to effluent limitations adopted as part of our initial regulatory program, the U.S. Court of Appeals for the D.C. Circuit held that ``where the Secretary's regulation of surface coal mining's hydrologic impact overlaps EPA's, the Act expressly directs that the Federal Water Pollution Control Act and its regulatory framework are to control so as to afford consistent effluent standards nationwide.'' In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1367 (D.C. Cir. 1980).
In today's final rule, we are adding paragraph (f)(2) of sections 780.28 and 784.28 and paragraph (d) of sections 816.57 and 817.57(d) to reiterate and further clarify this relationship between SMCRA and the Clean Water Act. The new rules emphasize that issuance of a SMCRA permit is not a substitute for the reviews, authorizations, and certifications required under the Clean Water Act and does not authorize initiation of surface coal mining operations for which the applicant has not obtained all necessary authorizations,
certifications, and permits under the Clean Water Act.
Consistent with the approach described above, our existing regulations at 30 CFR 816.42 and 817.42 provide that discharges of water from areas disturbed by surface or underground mining activities shall be made in compliance with all applicable State and Federal water quality laws and regulations and with the effluent limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in 40 CFR part 434. Nothing in the final rule that we are adopting today would alter or affect the requirements of 30 CFR 816.42 or 817.42.
SMCRA and the Clean Water Act provide for separate regulatory programs with different purposes and very different permitting requirements and procedures. In addition, SMCRA and the Clean Water Act differ considerably with respect to jurisdiction. For example, unlike SMCRA, the Clean Water Act does not directly regulate groundwater. The Clean Water Act focuses primarily on regulating discharges of pollutants into waters of the United States, whereas SMCRA regulates a broad universe of environmental and other impacts of surface coal mining and reclamation operations. As stated in the legislative history of SMCRA:
Statutory authority to regulate the adverse environmental effects of surface and underground coal mining under the Federal Water Pollution Control Act [Clean Water Act], as amended, is limited to the treatment or removal of any pollutants into the waters of the United States. * * * The Federal Water Pollution Control Act, as amended, can deal only with a part of the problem. The FWPCA does not contain the statutory authority for the establishment of standards and regulations 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. The statute also lacks the regulatory authority to deal with the discharge of pollutants from abandoned surface and underground coal mines.
H. Rep. No. 941445 at 9091 (1976), emphasis in original.
Section 508(a)(9) of SMCRA requires that each permit application include ``the steps to be taken to comply with applicable air and water quality laws and regulations and any applicable health and safety standards.'' Our regulations at 30 CFR 780.18(b)(9) and 784.13(b)(9) similarly require that each permit application include:
A description of steps to be taken to comply with the requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), and the Clean Water Act (33 U.S.C. 1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards.
In keeping with section 508(a)(9) of SMCRA, today's rule also includes new provisions in paragraph (f)(1) of sections 780.28 and 784.28 reiterating that every permit application must identify the authorizations that the applicant anticipates will be needed under sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps that the permit applicant has taken or will take to procure those authorizations.
The Clean Water Act establishes a comprehensive program designed to ``restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a). To achieve this goal, it prohibits the discharge of pollutants into navigable waters except as in compliance with specified provisions of the Clean Water Act, including a provision that allows for discharges authorized by a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. 1311(a) and 1342(a). At 33 U.S.C. 1362(7), the Clean Water Act defines ``navigable waters'' as ``waters of the United States,'' a term which the Corps and EPA define at 33 CFR 328.3 and 40 CFR 232.2, respectively. The proper scope of that definition has been extensively litigated and EPA and the Corps have issued supplemental guidance to reflect the outcome of that litigation.
The Clean Water Act authorizes the discharge of pollutants into waters of the United States under two different permit programs. Section 404 authorizes discharges of dredged or fill material, while section 402 applies to all other pollutants. 33 U.S.C. 1344, 1342. Section 404 is primarily administered by the Corps, with the exception of those States and Indian tribes that have assumed the program pursuant to section 404(g). In both cases, EPA provides input and has oversight authority and responsibilities. Section 402 (NPDES) permits are issued by EPA or states and Indian tribes that EPA has authorized to administer the NPDES program under section 402(b).
Section 401 of the Clean Water Act requires that each applicant for a federal license or permit submit a certification from the state in which the discharge originates. The certification must state that the discharge will comply with federal and state water quality requirements. 33 U.S.C. 1341(a)(1). ``No license or permit shall be granted until the certification required by this section has been obtained or has been waived'' and ``[n]o license or permit shall be granted if certification has been denied by the State.'' Id. Section 401(d) further provides that the state certifications ``shall become a condition on any Federal license or permit subject to the provisions of this section.'' Id. at 1341(d).
Section 402 of the Clean Water Act governs discharges of pollutants
other than dredged or fill material. 33 U.S.C. 1342. Permits issued
under this section are known as NPDES permits. They typically contain
technologybased numerical standards called effluent limitations that restrict the amount of specified pollutants that may be
[[Page 75820]]
discharged. 33 U.S.C. 1311, 1362(11). EPA has developed industrywide
technologybased wastewater effluent limitations for surface coal
mining and reclamation operations. Those effluent limitations are
codified in 40 CFR part 434. NPDES permits also must include any more
stringent limitations necessary to meet state water quality standards.
33 U.S.C. 1311(b)(1)(C), 1342(a). EPA may authorize states to issue
NPDES permits, but EPA retains authority to enforce the requirements of the Clean Water Act.
Section 404 of the Clean Water Act authorizes the Secretary of the Army, through the Corps, to regulate discharges of dredged and fill material through a permitting process. 33 U.S.C. 1344. On May 9, 2002 (67 FR 3112931143), the Corps and EPA adopted a revised definition of ``fill material'' in 33 CFR 323.2(e) and 40 CFR 232.2, respectively, that includes ``overburden from mining or other excavation activities.'' In the same rulemaking, the Corps and EPA also adopted a revised definition of ``discharge of fill material'' in 33 CFR 323.2(f) and 40 CFR 232.2, respectively. The revised definition provides that ``[t]he term generally includes, without limitation, the * * * placement of overburden, slurry, or tailings or similar miningrelated materials.'' Therefore, any mining overburden or coal mine waste used to replace any waters of the United States, or portion thereof, with dry land or to change the bottom elevation of any waters of the United States, or portion thereof, is classified as fill material for purposes of the Clean Water Act.
To implement section 404, the Corps may issue either individual permits under 33 CFR parts 320 through 328 or general permits under 33 CFR part 330. See 33 U.S.C. 1344(a) and (e). Both individual and general permits must comply with guidelines issued by EPA under section 404(b)(1), 33 U.S.C. 1344(b)(1). Those guidelines, which are codified at 40 CFR part 230, are referred to as the ``404(b)(1) Guidelines.'' The 404(b)(1) Guidelines generally prohibit the permitting of projects where there ``is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.'' 40 CFR 230.10(a). Under 40 CFR 230.10(a)(2), ``[a]n alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.''
The guidelines specify that the Corps must ensure that the proposed fill will not cause significantly adverse effects on human health or welfare, aquatic life, and aquatic ecosystems. 40 CFR 230.10(c)(1) through (c)(3). To comply with this requirement, the Corps must make a written determination of the effects of a proposed activity ``on the physical, chemical, and biological components of the aquatic environment.'' 40 CFR 230.11. See also 33 CFR 320.4(b)(4) and 325.2(a)(6) for requirements for individual permits.
The 404(b)(1) Guidelines also provide that ``no discharge of dredged or fill material shall be permitted unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.'' 40 CFR 230.10(d). One way the Corps can reduce the potential adverse impacts associated with filling activity is to require compensatory mitigation. See 33 CFR 325.4(a)(3) and 320.4(r) for individual permits and General Condition 20 (72 FR 11193, March 12, 2007) for nationwide permits under 33 CFR part 330. This differs substantially from SMCRA, which provides no authority to require compensatory mitigation.
Section 404(e) of the Clean Water Act authorizes the Corps to ``issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary [of the Army] determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment,'' provided the general permit is based upon the guidelines developed under section 404(b)(1) of the Clean Water Act.
The Corps has exercised its authority under section 404(e) to issue general nationwide permits (NWPs) for surface coal mining operations under SMCRA (NWP 21), coal remining activities under SMCRA (NWP 49), and underground coal mining activities under SMCRA (NWP 50). Those permits apply only if the activities are authorized under a SMCRA permit or an application for the activities is being processed as part of an integrated permit processing procedure. See 72 FR 11092, 11184, and 11191, March 12, 2007. In issuing NWPs 21, 49, and 50, the Corps has determined that the activities covered by those permits are in compliance with the 404(b)(1) Guidelines. That is, the Corps has determined that these activities will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effects on the environment.
As the Corps states in the preamble to the most recent version of its general permits
When we issue the NWPs, we fully comply with the requirements of the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of general permits under section 404. For the section 404 NWPs, each decision document contains a 404(b)(1) Guidelines analysis. Section 230.7(b) of the 404(b)(1) Guidelines requires only a ``written evaluation of the potential individual and cumulative impacts of the categories of activities to be regulated under the general permit.'' Since the required evaluation must be completed before the NWP is issued, the analysis is predictive in nature. The estimates of potential individual and cumulative impacts, as well as the projected compensatory mitigation that will be required, are based on the best available data from the Corps district offices, based on past use of NWPs.
72 FR 11094, March 12, 2007.
In the preamble to NWP 21, the Corps states that ``the analyses and environmental protection performance standards required by SMCRA, in conjunction with the preconstruction notification requirement, are generally sufficient to ensure that NWP 21 activities result in minimal individual and cumulative adverse impacts on the aquatic environment.'' 72 FR 11114. The most critical element in the Corps' determination that NWP 21 meets the Clean Water Act requirements for general permits is the fact that NWP 21 requires a preconstruction notification from the applicant, followed by a review of the project by the Corps, and then a written determination from the Corps before the activities covered by NWP 21 may be initiated. As the Corps states in the preamble
We believe our process for NWP 21 ensures that activities authorized by the NWP result in no more than minimal adverse impacts to the aquatic environment because each project is reviewed on a casebycase basis and the district engineer either makes a minimal impacts determination on the project or asserts discretionary authority and requires an individual permit. Also, because of the casebycase review and the requirement for written verification, we do not agree that it is necessary to prohibit discharges of dredged or fill material into perennial streams.
* * * * *
The preconstruction notification requirements of all NWPs
allows for a casebycase review of activities that have the
potential to result in more than minimal adverse effects to the
aquatic environment. If the adverse effects on the aquatic
environment are more than minimal, then the district engineer can
either add special conditions to the NWP authorization to ensure that the activity results in no more than minimal adverse
environmental effects
[[Page 75821]]
or exercise discretionary authority to require an individual permit. 72 FR 11114.
Furthermore, at 72 FR 11117, the Corps states that
The Corps does not assume that other state or Federal agencies
conduct a review that is comparable to the section 404(b)(1)
Guidelines. Although analysis of offsite alternatives is not
required in conjunction with general permits, each proposed project
is evaluated for onsite avoidance and minimization, in accordance
with general condition 20, and is not authorized under the NWP if
the adverse impacts to waters of the United States are more than minimal.
At 72 FR 11094, the Corps explains that
NWPs 21, 49, and 50 are a special case, in that they authorize activities for which review of environmental impacts, including impacts to aquatic resources, is separately required under other Federal authorities (e.g., Surface Mining Control and Reclamation Act (SMCRA) permits for coal mining activities). The Corps believes it would be unnecessarily duplicative to separately require the same substantive analyses through an individual permit application as are already required under SMCRA. However, through the preconstruction notification review process, the district engineer will consider the analyses prepared for the SMCRA permit and exercise discretionary authority to require an individual permit in cases where the district engineer determines, after considering avoidance and reclamation activities undertaken pursuant to SMCRA, that the residual adverse effects are not minimal. The project sponsor is required to obtain written verification prior to commencing work.
Thus, the Corps uses SMCRA permit application data and analyses as a starting point to determine whether a proposed operation qualifies for authorization under NWP 21, but it does not rely upon that information exclusively. Nor does the Corps presume that issuance of a SMCRA permit is evidence of compliance with Clean Water Act requirements. See 72 FR 11115, which states that
The Corps understands coal mining is covered by many environmental regulations; however the Corps has determined that SMCRA, in its current form, does not remove the need, either legally or substantively, for independent authorization under Section 404 of the Clean Water Act. Consequently, this NWP does not duplicate the SMCRA permit process.
The principles in the preceding discussion concerning NWP 21 also apply to NWPs 49 and 50. See 72 FR 1114849 and 1115152.
The preamble to General Condition 27, which applies to NWPs 21, 49, and 50, describes the Corps' decisionmaking process as follows:
In reviewing the PCN [preconstruction notification] for the proposed activity, the district engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest. * * * If the district engineer determines that the activity complies with the terms and conditions of the NWP and that the adverse effects on the aquatic environment are minimal, after considering mitigation, the district engineer will notify the permittee and include any conditions the district engineer deems necessary. The district engineer must approve any compensatory mitigation proposal before the permittee commences work. * * *
If the district engineer determines that the adverse effects of the proposed work are more than minimal, then the district engineer will notify the applicant either: (1) That the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an individual permit; (2) that the project is authorized under the NWP subject to the applicant's submission of a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions. Where the district engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level. When mitigation is required, no work in waters of the United States may occur until the district engineer has approved a specific mitigation plan.
72 FR 111951196, March 12, 2007.
The preamble also notes that, before beginning any activities covered by the preconstruction notification, the person submitting the notification must obtain a state water quality certification under section 401 of the Clean Water Act in those states that do not issue an unconditional certification for the nationwide permits.
As the preceding discussion demonstrates, we believe that maintaining the distinction between the SMCRA and Clean Water Act regulatory programs is both administratively and legally appropriate. We do not believe the requirements of this final rule are duplicative of requirements under the Clean Water Act. However, consistent with section 713(a) of SMCRA, we encourage SMCRA regulatory authorities and the agencies administering the Clean Water Act to share permit application data and environmental analyses to streamline the permitting processes under SMCRA and the Clean Water Act.
V. How did we obtain public input?
We published the proposed rule on which this final rule is based on August 24, 2007, (72 FR 4889048926). In response to requests from the public, we held public hearings on the proposed rule in Charleston, West Virginia; Hazard, Kentucky; Knoxville, Tennessee; and Washington, Pennsylvania on October 24, 2007. We also held public meetings in Big Stone Gap, Virginia on October 24, 2007, and in Alton, Illinois on November 1, 2007. In addition, we extended the comment period, which was originally scheduled to close October 23, 2007, until November 23, 2007. See 72 FR 57504, October 10, 2007.
Approximately 750 persons attended the public hearings and meetings. Of the attendees, 212 provided testimony, with 21 supporting the proposed rule and the remainder opposed. In addition to the testimony offered at the hearings and meetings, we received more than 43,000 written or electronic comments on the proposed rule. In general, most commenters opposed the proposed rule, primarily because they viewed the rule as facilitating mountaintop mining and construction of excess spoil fills in streams. Commenters representing the coal industry generally supported the proposed rule, except for the proposed revisions to (1) apply the buffer zone requirement to waters of the United States rather than to perennial and intermittent streams and (2) require an analysis of alternatives for disposal of excess spoil and coal mine waste. Comments from state regulatory authorities and other governmental entities were mixed in terms of support for or opposition to the 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.
VI. What general comments did we receive on the proposed rule?
A. We Should Discourage the Mining and Use of Coal as a Power Source
Because of the Role That the Combustion of Coal Plays in Climate Change
Many commenters expressed opposition to the use of coal as a fuel
for the generation of electricity, expressing concern about its role in
climate change. We acknowledge the commenters' concerns. However,
regulations adopted under SMCRA are not the appropriate venue to address climate change issues. Coalfired power
[[Page 75822]]
plants produce more than half of the electricity used in the United
States and the use of coal as a fuel for power generation is likely to
increase. Nothing in SMCRA authorizes us to regulate electric power
generation facilities or to adopt regulations or take other actions for
the purpose of reducing the use of coal for the generation of
electricity or to require carbon sequestration. Indeed, in SCMRA,
Congress repeatedly mentions the importance of coal to the Nation,
including the continued production of coal as an energy source. Section
101(b) of SMCRA states that ``coal mining operations presently
contribute significantly to the Nation's energy requirements.'' Section
101(d) refers to ``the expansion of coal mining to meet the Nation's
energy needs'' and section 101(j) notes that ``surface and underground
coal mining operations * * * contribute to the economic wellbeing,
security, and general welfare of the Nation.'' Section 102(f) specifies
that one of the purposes of SMCRA is to ``assure that the coal supply
essential to the Nation's energy requirements and to its economic and
social wellbeing is provided.'' That paragraph also provides that one
of the purposes of SMCRA is to ``strike a balance between protection of
the environment and agricultural productivity and the Nation's need for
coal as an essential source of energy.'' Taken together, these passages
and the other purposes of SMCRA listed in section 102 indicate that the
regulatory provisions of SMCRA were enacted not to discourage the
production or use of coal but rather to ensure that coal is mined in a
manner that respects property rights and minimizes adverse impacts on
land and water resources and communities. As stated in section 102(a)
of SMCRA, in enacting SMCRA, Congress intended to ``establish a
nationwide program to protect society and the environment from the
adverse effects of surface coal mining operations.'' (Emphasis added.)
There is no indication that Congress intended that the Act operate as a
means of regulating the burning and use of coal as opposed to the manner and locations in which coal is mined.
The lack of regulatory authority does not mean that we are
indifferent to the potential problems posed by climate change from
greenhouse gas emissions like carbon dioxide. In cooperation with
industry, academia, conservation organizations, individual landowners,
and others, we developed the Appalachian Regional Reforestation
Initiative, which encourages both the reclamation of mined lands in a
manner that is favorable to tree growth and the planting of trees as
part of the mine reclamation process. Young forests, especially
robustly growing young hardwood forests like those found on reclaimed
minesites that use the forestry reclamation approach encouraged under
the Appalachian Regional Reforestation Initiative, are generally
recognized as an effective means of removing carbon dioxide from the atmosphere.
B. We Should Withdraw the Proposed Rule and Enforce the 1983 Stream Buffer Zone, the Meaning of Which Is Clear as Written
Many commenters argued that we should withdraw the proposed rule and instead fully implement and enforce the 1983 version of the stream buffer zone rule at 30 CFR 816.57 and 817.57. According to the commenters, there is no need to clarify the meaning of the 1983 rule because the plain language of that rule precludes the construction of excess spoil and coal mine waste fills in perennial and intermittent streams. The commenters stated that the proposed rule is a reversal of the 1983 rule, not a clarification, because it specifies that excess spoil fills, refuse piles, and certain other activities conducted in the stream as part of surface coal mining operations are not subject to the prohibition on disturbance of the stream buffer zone.
We disagree with the commenters' interpretation of the 1983 rule.
Historically, both the 1983 rule and its state counterparts have been
applied in a manner that has allowed the construction of fills in
perennial and intermittent streams as part of surface coal mining
operations, provided those fills comply with all other applicable
requirements of the SMCRA regulatory program and with all pertinent
requirements under the Clean Water Act. In other words, the 1983 stream
buffer zone rule applied only to activities within 100 feet of a
perennial or intermittent stream. It did not apply to activities
planned to occur in intermittent or perennial streams. Maintaining a
100foot buffer zone to protect the stream's water quality and
environmental resources makes sense only if the stream segment adjacent
to the buffer zone is to remain intact. This historical interpretation
and application of the stream buffer zone rule is in harmony with a
statement of the U.S. Court of Appeals for the Fourth Circuit in
Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443
(4th Cir. 2003) (``it is beyond dispute that SMCRA recognized the
possibility of placing excess spoil material in waters of the United
States''). Several industry commenters stated that to apply the rule in
any other way would be nonsensical and that applying the rule to
activities that are designed to take place in stream channels would
seriously impair the viability of coal mining in central Appalachia.
The historical application of the 1983 rule closely resembles the
revised stream buffer zone rules that we are adopting today.
Consequently, the revised rules are in fact a clarification of the 1983 rule, not a reversal of that rule.
C. We Should Not
FOR FURTHER INFORMATION CONTACT
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 2082829.
You can find additional information concerning OSM, this rule, and related documents on OSM's home page on the Internet at http:// www.osmre.gov.