[Federal Register: August 24, 2007 (Volume 72, Number 164)] [Proposed Rules] [Page 48889-48926] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr24au07-21] [[Page 48889]] ----------------------------------------------------------------------- Part VIII Department *of* the Interior ----------------------------------------------------------------------- *Office* *of* *Surface* *Mining* Reclamation and Enforcement ----------------------------------------------------------------------- 30 CFR Parts 780, 784, 816, and 817 Excess Spoil, Coal Mine Waste, and Buffers for Waters *of* the United States; Proposed Rule [[Page 48890]] ----------------------------------------------------------------------- DEPARTMENT *OF* THE INTERIOR *Office* *of* *Surface* *Mining* Reclamation and Enforcement 30 CFR Parts 780, 784, 816, and 817 RIN 1029-AC04 Excess Spoil, Coal Mine Waste, and Buffers for Waters *of* the United States AGENCY: *Office* *of* *Surface* *Mining* Reclamation and Enforcement, Interior. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: We, the *Office* *of* *Surface* *Mining* Reclamation and Enforcement (OSM), are proposing to amend our regulations concerning stream buffer zones, stream diversions, siltation structures, impoundments, and the creation and disposal *of* excess spoil and coal mine waste. Among other things, this proposed rule would require 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. It would apply the buffer requirement to all waters *of* the United States, not just perennial and intermittent streams. The rule would clearly specify the activities to which that requirement does and does not apply and the limitations on conducting activities within the buffer, either under a variance or an exception. It also would specify requirements to protect aquatic and other resources when an activity is conducted under either a variance or an exception. DATES: Electronic or written comments: We will accept written comments on the proposed rule on or before October 23, 2007. Public hearings: If you wish to testify at a public hearing, you must submit a request before 4:30 p.m., Eastern time, on September 24, 2007. We will hold a public hearing only if there is sufficient interest. Hearing arrangements, dates and times, if any, will be announced in a subsequent Federal Register notice. If you are a disabled individual who needs reasonable accommodation to attend a public hearing, please contact the person listed under FOR FURTHER INFORMATION CONTACT. ADDRESSES: You may submit comments, identified by docket number 1029- AC04. by any *of* the following methods: Federal eRulemaking Portal: http://www.regulations.gov . The proposed rule is listed under the agency name ``*OFFICE* *OF* *SURFACE* *MINING* RECLAMATION AND ENFORCEMENT.'' Mail/Hand-Delivery/Courier: *Office* *of* *Surface* *Mining* Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution Avenue, NW., Washington, DC 20240. Please identify the comments as pertaining to RIN 1029-AC04. You may submit a request for a public hearing on the proposed rule to the person and address specified under FOR FURTHER INFORMATION CONTACT. If you are disabled and require special accommodation to attend a public hearing, please contact the person listed under FOR FURTHER INFORMATION CONTACT. If you are commenting on the information collection aspects *of* this proposed rule, please submit your comments to the *Office* *of* Management and Budget, *Office* *of* Information and Regulatory Affairs, Attention: Interior Desk Officer, via e-mail to oira--docket@omb.eop.gov , or via facsimile to 202-365-6566. You may review the draft environmental impact statement for this proposed rule online at http://www.regulations.gov . At that internet address, the document is listed under ``*Office* *of* *Surface* *Mining* Reclamation and Enforcement.'' You may also review the draft environmental impact statement at any *of* the following locations: *Office* *of* *Surface* *Mining* Reclamation and Enforcement, Administrative Record, Room 101 SIB, 1951 Constitution Avenue, NW., Washington, DC 20240, 202-208-4264. *Office* *of* *Surface* *Mining* Reclamation and Enforcement, Appalachian Regional *Office*, Three Parkway Center, Pittsburgh, PA 15220, 412-937- 2909. *Office* *of* *Surface* *Mining* Reclamation and Enforcement, Mid-Continent Regional *Office*, Alton Federal Bldg., 501 Belle Street, Rm 216, Alton, IL 62002, 618-463-6460. *Office* *of* *Surface* *Mining* Reclamation and Enforcement, Western Regional *Office*, 1999 Broadway, Suite 3320, Denver, CO 80201-6667, 303-844-1401. 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- 208-2829. E-mail address: drice@osmre.gov . SUPPLEMENTARY INFORMATION: Table *of* Contents I. How does this rule relate to the proposed rule published on January 7, 2004? II. Why is there a need to construct fills in streams in connection with coal *mining*? III. Why are we proposing to revise our stream buffer zone rules? A. What does SMCRA say about *surface* coal *mining* operations in or near streams? B. What provisions *of* SMCRA form the basis for the existing stream buffer zone rules? C. What is the history *of* the existing stream buffer zone rules? D. How have the existing stream buffer zone rules been interpreted? IV. Why are we proposing to revise our rules concerning excess spoil? V. Why are we proposing to revise our rules concerning coal mine waste? VI. How are we proposing to revise our existing 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 Waters *of* the United States D. Section 780.35: Disposal *of* Excess Spoil from *Surface* Mines E. Section 784.19: Disposal *of* Excess Spoil from 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 Waters *of* the United States 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? VII. Are we considering any alternatives to this proposed rule? A. No Action Alternative B. Alternative 1: Preferred Alternative C. Alternative 2: January 7, 2004, Proposed Rule D. Alternative 3: Change Only the Excess Spoil Regulations E. Alternative 4: Change Only the Stream Buffer Zone Regulations VIII. How do I submit comments on the proposed rule? IX. Procedural Matters and Required Determinations I. How does this rule relate to the proposed rule published on January 7, 2004? On January 7, 2004 (69 FR 1036), we published a proposed rule to amend our excess spoil, stream buffer zone, and stream diversion regulations. The preamble to that proposed rule contains an extensive discussion *of* the purpose and need for the proposed rule and pertinent background information. We will not fully repeat that information in [[Page 48891]] this preamble, but we will supplement that information as appropriate. On February 26, 2004 (69 FR 8899), we announced the schedule and arrangements for five hearings on the proposed rule, and extended the time allowed for receipt *of* comments by 30 days until April 7, 2004. On March 30, 2004, we held public hearings in Harriman, Tennessee; Hazard, Kentucky; Charleston, West Virginia; Pittsburgh, Pennsylvania; and Washington, DC. Approximately 200 people testified at the five hearings. We received approximately 32,000 written comments. 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. The proposed rule that we are publishing today reflects that decision and replaces the proposed rule published on January 7, 2004. II. Why is there a need to construct fills in streams in connection with coal *mining*? Most fill material placed in streams in connection with coal *mining* is a result *of* the need to dispose *of* excess spoil generated by *mining* operations conducted in areas consisting *of* steep slopes and narrow valleys. To remove coal by *surface* *mining* methods, the formerly solid rock strata overlying the coal seam must be broken up into fragments and excavated. The broken rock fragments (referred to as spoil) are separated by numerous voids, resulting in a significant increase in volume over the volume *of* solid rock in place before *mining*. The increase in volume varies considerably depending upon the nature *of* the rock and the *mining* method, but the industry average is about 25 percent. Returning all spoil to the mined-out area in steep-slope terrain would create highly unstable conditions and in most cases is physically impossible. Consequently, some spoil must be permanently placed outside the mined-out area in engineered fills. The most economically feasible disposal areas are the upper reaches *of* valleys adjacent to the mine. As defined in 30 CFR 701.5, spoil not needed to restore the approximate original contour and disposed *of* in locations other than the mined-out area is considered ``excess spoil.'' A nationwide survey *of* all coal *mining* permits issued between October 1, 2001, and June 30, 2005, found that those permits included a total *of* 1,612 excess spoil fills, *of* which 1,589 (98.6 percent) are located in the central Appalachian coalfields. Specifically, most *of* the fills approved in those permits are located in Kentucky (1,079), West Virginia (372), and Virginia (125), with 13 approved in Tennessee. The remaining fills approved during that time are located in Alaska, Alabama, Ohio, Pennsylvania, and Washington. This survey is discussed in greater detail in the draft environmental impact statement (DEIS) that accompanies this proposed rule. You may review the DEIS for this proposed rule online at http://www.regulations.gov . At that internet address, the document is listed under ``*Office* *of* *Surface* *Mining* Reclamation and Enforcement.'' A notice announcing the availability *of* the DEIS was published in this edition *of* the Federal Register. That notice also lists OSM offices and public libraries in Kentucky, Tennessee, Virginia, and West Virginia where you may review the DEIS. The central Appalachian coalfields are characterized by highly eroded plateaus, dissected by numerous narrow, deeply incised valleys with steep side slopes. In this region, even small valleys may contain intermittent and perennial streams. For example, in a study conducted in West Virginia, the United States Geological Survey found that, on average, perennial streams begin in watersheds as small as 40.8 acres and intermittent streams in watersheds as small as 14.5 acres. See Katherine S. Paybins, Flow Origin, Drainage Area, and Hydrologic Characteristics for Headwater Streams in Mountaintop Coal-*Mining* Region *of* Southern West Virginia, Water Resources Investigations Report 02- 4300, U.S. Geological Survey, 2003, p. 1. Consequently, the construction *of* excess spoil fills in those valleys often involves burying the upper reaches *of* perennial and intermittent streams. Underground mines also may result in the filling *of* some stream segments. Rock and other overburden materials removed as part *of* the cut made to expose the coal seam into which the mine entries and ventilation shafts are driven normally are used to construct an adjoining bench upon which mine offices, parking lots, equipment, and other support facilities are located. This process is referred to as ``facing up'' the mine. Any material removed as part *of* the face-up operation that is not used to construct the bench or placed in temporary storage for use in restoring the approximate original contour and reclaiming the face-up area once the mine closes permanently is excess spoil. Should such excess spoil exist, it would be placed in fills on adjacent hillsides or in adjoining valleys. Underground *mining* operations also may involve the excavation *of* non-coal waste rock from underground tunnels. The waste rock, which we define as underground development waste, is typically brought to the *surface* and placed in fills. Activities associated with coal preparation plants also may result in the filling *of* some stream segments. These plants clean coal by removing impurities, especially ash, incombustible rock, and sulfur. They create large quantities *of* coal processing waste, including both a very fine fraction, which is often suspended in water in a semi-liquid form (slurry) and a coarse fraction (refuse). Coal processing waste normally is placed in disposal sites near the plant. The slurry is usually impounded behind dams constructed *of* coarse refuse in a valley adjacent to the plant. The previously mentioned survey *of* all coal *mining* permits issued between October 1, 2001, and June 30, 2005, indicates that coal *mining* activities authorized by those permits will directly affect about 535 miles *of* streams nationwide, *of* which 324 miles (60.6 percent) are in the central Appalachian coalfields. Based on data from the West Virginia permits, we estimate that approximately two-thirds *of* the 324 miles will be permanently covered by excess spoil fills and coal mine waste disposal facilities. Most *of* the remaining miles *of* stream directly affected by *mining* operations should experience only temporary adverse environmental impacts, chiefly as a result *of* *mining* through those streams. In those cases, the streams are diverted and relocated while the *mining* operation proceeds through the streambed. When *mining* is completed, the stream is restored to its original location unless the relocation is permanent. A further description *of* the existing environment *of* the central Appalachian coalfields can be found in the draft and final environmental impact statements issued in 2003 and 2005, respectively, by the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps *of* Engineers, the U.S. Fish and Wildlife Service, OSM, and the West Virginia Department *of* Environmental Protection. The draft EIS, which the final EIS incorporates by reference, contains the bulk *of* that description. The draft EIS is entitled ``Mountaintop *Mining*/Valley Fills in Appalachia Draft [[Page 48892]] Programmatic Environmental Impact Statement'' (EPA 9-03-R-00013, EPA Region 3, June 2003) and is available at http://www.epa.gov/region3/ mtntop/eis.htm . The final EIS, which is entitled ``Mountaintop *Mining*/ Valley Fills in Appalachia Final Programmatic Environmental Impact Statement'' (EPA 9-03-R-05002, EPA Region 3, October 2005), is available at http://www.epa.gov/region3/mtntop/pdf/mtm-vf--fpeis--full- document.pdf . According to the draft EIS referenced in the preceding paragraph, approximately 5,700 excess spoil fills were approved between 1985 and 2001 in the central Appalachian coalfields. These fills, if constructed, would cover approximately 724 miles *of* intermittent and perennial streams, which is about 1.2 percent *of* the approximately 59,000 miles *of* intermittent and perennial streams within the central Appalachian coal fields (EPA 9-03-R-00013, Chapter IV.B-2 and Table III.K-8). The draft EIS, as incorporated into the final EIS, also contains the following statements regarding actual and projected impacts: ``Impacts (including valley fills and other permit features) * * * based on ten years (1992-2002) *of* permit footprints were 1,208 miles (2.05%) *of* the 58,998 stream miles in the EIS study area.'' (EPA 9-03-R-00013, Chapter IV.B-1) ``If valley fill construction continued at this historical rate documented in the Fill Inventory for the next seventeen years (2003-2020), an additional 724 miles (for a total *of* 2.4%) could be impacted.'' (EPA 9-03-R-00013, Chapter IV.B-2) ``If that rate (for permit footprints) continued for another 10 years, a total *of* 4.10% would be impacted by 2013.'' (EPA 9- 03-R-00013, Chapter IV.B-1) III. Why are we proposing to revise our stream buffer zone rules? In regulating *surface* coal *mining* operations, OSM and State regulatory authorities have historically applied the 1983 stream buffer zone rules in 30 CFR 816.57 and 817.57 in a manner that allows excess spoil fills, refuse piles, coal mine waste impoundments, and sedimentation ponds to be located in perennial and intermittent streams under certain circumstances. However, as discussed below, there has been considerable controversy over the proper interpretation *of* the 1983 rules. Some *of* those interpretations appear to be at odds with the underlying provisions *of* the *Surface* *Mining* Control and Reclamation Act *of* 1977 (SMCRA). Therefore, Federal action is needed to end the ambiguity in interpretation *of* the stream buffer zone rules 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 rules do and do not require, consistent with underlying statutory authority. As discussed below, two Federal appellate court decisions are relevant to our reconsideration *of* the 1983 stream buffer zone rules. One *of* those decisions concluded that SMCRA does not prohibit placement *of* excess spoil in waters *of* the United States. It further recognized that section 515(b)(22) *of* SMCRA contemplated the placement *of* excess spoil in such waters. The other decision reversed contrary district court decisions 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 rules. Nevertheless, we believe that both the public and the regulated community would best be served by revising the 1983 stream buffer zone rules to clearly specify the scope *of* their applicability. The revisions that we are proposing today represent an attempt to minimize disputes and misunderstandings associated with application *of* the existing rules. The revised rules distinguish between those situations in which maintenance *of* an undisturbed buffer between *mining* and reclamation activities and waters *of* the United States 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 because the activities inherently involve placement *of* fill material in waters *of* the United States. Examples *of* the latter category *of* activities include *mining* through streams and the construction *of* excess spoil fills, refuse piles, slurry impoundments, and in-stream sedimentation ponds. Those activities are governed by other regulations. We are also proposing changes to better conform the rule language to the underlying provisions *of* SMCRA and to expand the scope *of* the rule to include all waters *of* the United States instead *of* just perennial and intermittent streams as under the existing rules. Finally, we are proposing to reorganize the rules in recognition *of* the fact that the review and approval *of* proposals to disturb the *surface* *of* lands within buffer zones is a permitting action, not a performance standard. At present, the buffer zone rules are part *of* the performance standards in subchapter K. We are proposing to move portions *of* those rules to new sections 780.28 and 784.28, which would be part *of* the permitting requirements *of* subchapter G. The history *of* the existing stream buffer zone rules, their statutory basis, and the impetus for our proposed rule changes are discussed at length below. A detailed rationale for our proposed changes to the existing buffer zone rules appears in Parts VI.C. and VI.I. *of* this preamble. A. 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) 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 *mining*-related activities in or near streams or to the existing or proposed buffer zone rules. 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 II-Round 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 [[Page 48893]] *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 springs and seeps further suggests that Congress did not intend to prohibit placement *of* excess spoil in perennial or intermittent streams. Springs and seeps constitute 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, the U.S. Court *of* Appeals for the Fourth Circuit cited section 515(b)(22) as the basis for its statement 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.'' 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). However, 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 mined-out area. And by cross-referencing 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. As discussed in Part II *of* this preamble, in the steep-slope 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. 95-218; 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 thirty-five 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 man-made watercourses, or wet weather seeps if the design includes diversions and underdrains. Not all areas containing springs, watercourses, or wet-weather seeps are waters *of* the United States, but some are, which means that refuse piles may be constructed in streams or other waters *of* the United States. B. What provisions *of* SMCRA form the basis for the existing stream buffer zone rules? Paragraphs (b)(10)(B)(i) and (24) *of* section 515 *of* SMCRA provide the basis for the existing stream buffer zone rule at 30 CFR 816.57, which applies to *surface* *mining* activities. Section 515(b)(10)(B)(i) requires that *surface* coal *mining* operations be conducted so as to prevent the contribution *of* additional suspended solids to streamflow or runoff outside the permit area to the extent possible using the best technology currently available. Section 515(b)(24) requires that *surface* coal *mining* and reclamation operations be conducted to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values ``to the extent possible using the best technology currently available.'' Paragraphs (b)(9)(B) and (11) *of* section 516 *of* SMCRA form the basis for the existing stream buffer zone rule at 30 CFR 817.57, which applies to *surface* activities associated with underground mines. Those section 516 provisions 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. Therefore, in the remainder *of* this [[Page 48894]] preamble, we generally refer only to the section 515 paragraphs, with the understanding that, unless otherwise indicated, references to those paragraphs should be read as including their section 516 counterparts. C. What is the history *of* the existing stream buffer zone rules? SMCRA and Its Legislative History 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. Initial Regulatory Program As part *of* the regulations implementing the initial regulatory program under SMCRA, we adopted the concept *of* a 100-foot 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. Permanent Regulatory Program (1979 Rules) The original version *of* the 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 reads as follows: (a) No land within 100 feet *of* a perennial stream or a stream with a biological community determined according to paragraph (c) below 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-- (1) That the original stream channel will be restored; and (2) 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. (b) The area not to be disturbed shall be designated a buffer zone and marked as specified in Sec. 816.11. (c) A stream with a biological community shall be determined by the existence in the stream at any time *of* an assemblage *of* two or more species *of* arthropods or molluscan animals which are: (1) Adapted to flowing water for all or part *of* their life cycle; (2) Dependent upon a flowing water habitat; (3) Reproducing or can reasonably be expected to reproduce in the water body where they are found; and (4) 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 sections 515(b)(10) and (24) *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 100-foot limit is based on typical distances that should be maintained to protect stream channels from sedimentation,'' but that, while the 100-foot standard provides a simple rule for enforcement purposes, ``site-specific 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. 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 non-perennial 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. The preamble 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 biological-community 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 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 buffer-zone 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 environmental-resource 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 environmental-resource value.'' Id. It further provides that the revised rules ``also recognize that intermittent and perennial streams generally have environmental-resource 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 100-foot 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 [[Page 48895]] stream channel 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 buffer-zone 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 (1983) reads as follows: (a) No 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 regulatory authority may authorize such activities only upon finding that-- (1) *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 (2) If there will be a temporary or permanent stream-channel diversion, it will comply with Sec. 816.43. (b) The area not to be disturbed shall be designated as a buffer zone, and the operator shall mark it as specified in Sec. 816.11. We revised the stream buffer zone rule for underground *mining* at 30 CFR 817.57 in identical fashion 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 II--Round II, 21 ERC 1725, 1741-1742 (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 much 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. D. How have the existing stream buffer zone rules been interpreted? Historically, we and the State regulatory authorities have applied the 1983 stream buffer zone rules as allowing 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 1038-1042), there has been considerable controversy over the proper interpretation *of* both the Clean Water Act and the 1983 rules as they apply to the placement *of* fill material in and near perennial and intermittent streams. Some interpretations *of* our 1983 rules appear to be 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 Report--West Virginia Permit Review--Vandalia Resources, Inc. Permit No. S-2007-98.'' 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 *mining*-related 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 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, 660-663 (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: [[Page 48896]] 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, 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. IV. Why are we proposing to revise our rules concerning excess spoil? The environmental impacts *of* fills and other structures associated with the disposal *of* excess spoil from *surface* coal *mining* operations, and *of* coal mine waste, have been the subject *of* controversy, largely because they involve the filling *of* substantial portions *of* stream valleys, especially in central Appalachia. This controversy has highlighted the need to ensure that excess spoil creation is minimized to the extent possible, and that, to the extent possible, excess spoil and coal mine waste disposal facilities are located and designed to minimize adverse impacts on the hydrologic balance, streams and other aquatic resources, fish, wildlife, and related environmental values. Our existing regulations pertaining to the disposal *of* excess spoil primarily focus on ensuring that fills are safe and stable. To complement the proposed rule changes concerning buffers for waters *of* the United States, we propose to revise our excess spoil rules by adding several requirements focused on environmental considerations, including minimization *of* the adverse environmental impacts *of* fill construction in waters *of* the United States. The proposed rule changes would implement, in part, the requirement at section 515(b)(24) *of* SMCRA that *surface* coal *mining* and reclamation operations be conducted in a manner that minimizes disturbances to, and adverse impacts on, fish, wildlife, and related environmental values to the extent possible, using the best technology currently available. Section 515(b)(24) applies to the disposal *of* excess spoil both by its own terms and through section 515(b)(22)(I), which requires that the placement *of* excess spoil meet ``all other provisions *of* this Act.'' The proposed rules (see the discussion *of* specific rule changes in Part VI *of* this preamble) require that *surface* coal *mining* operations be designed to minimize the creation *of* excess spoil to the extent possible. They also specify that the maximum cumulative design volume *of* all proposed excess spoil fills within the permit area must be no larger than the capacity needed to accommodate the anticipated cumulative volume *of* excess spoil that the operation will generate. These requirements should reduce the adverse environmental impacts *of* the operation by minimizing the amount *of* land and waters disturbed to construct excess spoil fills. The proposed rules further require that the permit application include an analysis *of* the environmental impacts *of* a reasonable range *of* alternatives for disposal *of* excess spoil, including variations in the number, size, location, and configuration *of* proposed fills. The analysis must consider impacts on both terrestrial and aquatic ecosystems. To the extent possible, the applicant must select the alternative with the least overall adverse environmental impact, including adverse impacts on water quality and aquatic ecosystems. The proposed rule clarifies that an alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology, and that the least costly alternative may not be selected at the expense *of* environmental protection solely on the basis *of* cost. If another alternative considered would be more environmentally protective than the alternative selected by the applicant, the application must demonstrate, to the satisfaction *of* the regulatory authority, that implementation *of* the more environmentally protective alternative is not possible. In addition, when construction *of* the excess spoil fill would involve placement *of* excess spoil in waters *of* the United States, the proposed rule specifies certain factors that must be considered as part *of* the evaluation *of* environmental impacts to ensure adequate assessment *of* impacts on water quality and aquatic ecosystems, which are among the ``related environmental values'' mentioned in sections 515(b)(24) and 516(b)(11) *of* SMCRA. We are proposing these rule changes to improve the analysis *of* permit applications and permitting decisions under SMCRA. We recognize that SMCRA itself does not require an analysis *of* alternatives. However, we believe that the alternatives analysis that we propose to require is a reasonable means *of* implementing sections 515(b)(24) and 516(b)(11) *of* SMCRA. Those provisions *of* the law require that *surface* coal *mining* and reclamation operations be conducted in a manner that minimizes disturbances to, and adverse impacts on, fish, wildlife, and related environmental values to the extent possible, using the best technology currently available. The addition *of* requirements for an alternatives analysis and selection *of* the alternative with the least overall adverse environmental impact (to the extent possible) also may facilitate the coordinated processing *of* coal *mining* permit applications in accordance with a memorandum *of* understanding entitled ``Memorandum *of* Understanding among the U.S. Army Corps *of* Engineers, the U.S. *Office* *of* *Surface* *Mining*, the U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service for the Purpose *of* Providing Concurrent and Coordinated Review and Processing *of* *Surface* Coal *Mining* Applications Proposing Placement *of* Dredged and/or Fill Material in Waters *of* the United States,'' which took effect February 8, 2005. For example, Nationwide Permits 21, 49, and 50, which authorize placement *of* excess spoil and coal mine waste in waters *of* the United States as part *of* *surface* coal *mining* operations, are predicated upon issuance *of* a SMCRA permit or participation in an integrated permitting process. See 72 FR 11092, 11184 and 11191, March 12, 2007. A person seeking authorization under one *of* these nationwide permits must submit a preconstruction notification to the U.S. Army Corps *of* Engineers (Corps). The Corps then must review the notification and issue a decision on whether the proposed activities lie within the scope *of* the nationwide permit or whether an individual permit is necessary under section 404 *of* the Clean Water Act. While an alternatives analysis is not listed as a required element *of* the preconstruction notification that must be submitted to the U.S. Army Corps *of* Engineers under Nationwide Permits 21, 49, and 50, we believe that such an analysis may assist the Corps in evaluating preconstruction notifications that involve construction [[Page 48897]] *of* an excess spoil fill, refuse pile, or slurry impoundment. The addition *of* these requirements to our rules is consistent with section 102(d) *of* SMCRA, which provides that one *of* the purposes *of* SMCRA is to assure that *surface* coal *mining* operations are conducted so as to protect the environment. In addition, the proposed additions are consistent with section 102(f) *of* SMCRA, which provides that another purpose *of* SMCRA is to strike a balance between protection *of* the environment and the Nation's need for coal as an essential energy source. The rule changes that we are proposing today would not prohibit coal production. If the creation *of* excess spoil as part *of* a *surface* coal *mining* operations is unavoidable, the proposed rules would not prevent construction *of* the fills needed to accommodate the excess spoil. Instead, the rules that we are proposing are intended to ensure that *surface* coal *mining* operations are planned and conducted in a manner that minimizes adverse environmental impacts from the construction *of* fills for the disposal *of* excess spoil. Section 201(c)(2) *of* SMCRA, 30 U.S.C. 1211(c)(2), which directs the Secretary *of* the Interior to publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions *of* SMCRA, provides additional authority for the adoption *of* these rule changes. Since the mid-1990s, the extent *of* excess spoil fill construction in central Appalachia has been controversial, especially when fills bury stream segments. As part *of* our oversight activities, we conducted studies in 1999 in Kentucky, Virginia, and West Virginia to determine how State regulatory authorities were administering SMCRA regulatory programs regarding restoration *of* approximate original contour. From our review *of* permit files and reclaimed mines, we determined that, typically, some *of* the spoil placed in excess spoil fills could have been retained on or returned to mined-out areas. See ``An Evaluation *of* Approximate Original Contour and Postmining Land Use in Kentucky'' (OSM, September 1999); ``An Evaluation *of* Approximate Original Contour Variances and Postmining Land Uses in Virginia'' (OSM, September 1999); and ``Final Report: An Evaluation *of* Approximate Original Contour and Postmining Land Use in West Virginia'' (OSM, May 1999). In many instances, we found that the permit application overestimated the anticipated volume *of* excess spoil that the operation would produce. In addition, fills were designed and constructed larger than necessary to accommodate the anticipated excess spoil, which resulted in the unnecessary disturbance *of* additional land. Kentucky, Virginia and West Virginia worked with us to develop enhanced guidance on material balance determinations, spoil management, and approximate original contour determinations to correct these problems to the extent feasible under the existing regulations. We also developed guidance for use under the Tennessee Federal regulatory program. In most cases, the regulatory authorities in those states have adopted policies based on that guidance for use in reviewing permit applications. Adopting regulations that clearly establish limits on excess spoil generation and fill capacity and that require an analysis *of* alternatives when selecting locations and designs for fills would reinforce the basis for those policies, strengthen the enforceability *of* decisions based on those policies, and provide national consistency by ensuring that certain basic requirements will be applied nationwide, including in those states that have not adopted policies. We also believe that the environment, the public, and the regulated community would best be served by the adoption *of* national regulations to clarify environmental considerations concerning the generation and disposal *of* excess spoil. We also are taking this opportunity to propose to consolidate most fill design and permitting requirements in the permit application regulations at 30 CFR 780.35 and 784.19, rather than splitting them between those regulations and the performance standards at 30 CFR 816.71 and 817.71, as they are at present. In addition, we are proposing to revise those rules to be more consistent with plain language principles, to eliminate redundancies, and to remove inconsistencies between the performance standards and the permitting requirements. We invite comment on whether further changes would be useful or desirable in achieving these goals. V. Why are we proposing to revise our rules concerning coal mine waste? As noted in the first paragraph *of* Part IV *of* this preamble, our reasons for proposing revisions to our coal mine waste disposal rules are similar to the reasons for which we are proposing changes to our excess spoil disposal rules. In steep-slope areas, coal mine waste disposal facilities are similar to excess spoil fills in that they are often placed in valleys containing perennial and intermittent streams and other waters *of* ecological significance. Consequently, to minimize the environmental impacts *of* those structures on fish, wildlife, and related environmental values to the extent possible using the best technology currently available, as required by sections 515(b)(24) and 516(b)(11) *of* SMCRA, we are proposing to revise our coal mine waste disposal rules in a manner similar to the proposed changes to the excess spoil rules by requiring consideration *of* other methods *of* handling coal mine waste, an analysis *of* alternative locations for coal mine waste disposal facilities, and, to the extent possible, selection *of* the alternative with the least overall adverse environmental impact. Additional Proposed Changes to Permitting Rules Concerning Coal Mine Waste On September 26, 1983 (48 FR 44006), we revised the definitions and performance standards in our regulations relating to coal mine waste to be more consistent with the terminology used by the Mine Safety and Health Administration (MSHA). As we stated at 48 FR 44009, col. 1, ``[i]t is undesirable to have two regulatory programs for the same subject that contain conflicting standards or which use fundamentally different terminology.'' Among other things, we adopted definitions *of* three new terms in 30 CFR 701.5. ``Coal mine waste'' is defined as ``coal processing waste and underground development waste.'' ``Impounding structure'' is defined as ``a dam, embankment, or other structure used to impound water, slurry, or other liquid or semi-liquid material.'' ``Refuse pile'' is defined as ``a *surface* deposit *of* coal mine waste that does not impound water, slurry, or other liquid or semi-liquid material.'' The latter two terms are consistent with the terminology *of* MSHA's rules. ``Refuse pile'' replaces the term ``coal processing waste bank'' previously used in our rules, while ``impounding structure'' incorporates all structures that our rules previously referred to as coal processing waste dams or embankments. In concert with the new definition *of* coal mine waste, we revised our performance standards at 30 CFR 817.71-817.74 to eliminate the language that combined underground development waste with excess spoil for purposes *of* performance standards for underground mines. Because the definition *of* coal mine waste includes underground development waste, we revised our rules to specify that the disposal *of* underground development [[Page 48898]] waste is subject to the performance standards for refuse piles (30 CFR 817.83) rather than the performance standards for the disposal *of* excess spoil that applied under the old rules. However, we did not revise our permitting requirements in a similar fashion at that time. We are taking this opportunity to propose to modify our regulations in 30 CFR parts 780 and 784 to harmonize those rules with the 1983 changes to the definitions and performance standards concerning coal mine waste. In essence, we are proposing to replace references to coal processing waste banks and coal processing waste dams and embankments with references to refuse piles and coal mine waste impounding structures, respectively. Also, because the definition *of* coal mine waste, as adopted on September 26, 1983, includes both coal processing waste and underground development waste, we are proposing to restructure the permitting regulations to take this change into account. In particular, 30 CFR 784.19, which is currently entitled ``Underground Development Waste,'' even though it refers to the disposal *of* both underground development waste and excess spoil, would be retitled ``Disposal *of* Excess Spoil.'' The language *of* that section also would be revised to eliminate references to underground development waste, which would instead be regulated under the refuse pile provisions *of* revised 30 CFR 784.16, consistent with the 1983 changes to the performance standards. The new language *of* 30 CFR 784.19 would parallel the language *of* 30 CFR 780.35 (the permit application requirements for the disposal *of* excess spoil generated by *surface* *mining* activities), which the existing rule incorporates by reference. Adding specific language in place *of* the cross-reference to section 780.35 would make this rule consistent with the pattern established in most *of* our other rules for *surface* and underground mines (i.e., the provisions for *surface* and underground mines are in separate parts, but are nearly identical except for cross- references and the type *of* operation to which they apply). In addition, adding specific language in place *of* the cross-reference to section 780.35 would allow the incorporation *of* cross-references to the appropriate underground *mining* performance standards in part 817 rather than having to use the existing cross-references in 30 CFR 780.35 to the *surface* *mining* performance standards in part 816. We are also proposing to delete the cross-references to 30 CFR 77.216-1 in 30 CFR 780.25(e) and 784.16(e) because 30 CFR 77.216-1 consists solely *of* signage requirements and does not include any design requirements. Consequently, there is no purpose in cross-referencing 30 CFR 77.216-1 in our permitting rules. The cross-reference to 30 CFR 77.216-2, which contains design requirements for impoundments and impounding structures, would remain. VI. How are we proposing to revise our existing rules? A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans We propose to revise 30 CFR 780.14(b)(11) and 784.23(b)(10) by replacing the terms ``coal processing waste bank'' and ``coal processing waste dam and embankment'' with ``refuse pile'' and ``coal mine waste impounding structure'' to employ terminology consistent with the definitions and performance standards that we adopted September 26, 1983. See Part V *of* this preamble for a more detailed explanation. In addition, we propose to replace the references to sections 780.35(c) and 816.71(b) in existing section 780.14(c) with a reference to section 780.35 to be consistent with other changes that we are proposing to those rules, including moving the design certification requirement *of* existing section 816.71(b) to section 780.35(b). In similar fashion, we are proposing to delete the reference in existing section 784.23(c) to section 817.71(b) because we are proposing to move the design certification provisions *of* existing section 817.71(b) to section 784.19(b). There is no need for a replacement cross-reference because section 784.23(c) already cross-references section 784.19 in its entirety. B. Sections 780.25 and 784.16: Reclamation Plan: Siltation Structures, Impoundments, Refuse Piles, and Coal Mine Waste Impounding Structures We propose to revise the heading and contents *of* sections 780.25 and 784.16 by replacing the terms ``coal processing waste bank'' and ``coal processing waste dam and embankment'' with ``refuse pile'' and ``coal mine waste impounding structure.'' With these changes, our permitting requirements concerning coal mine waste will employ terminology consistent with the definitions and performance standards for coal mine waste that we adopted September 26, 1983. See Part V *of* this preamble for a more detailed explanation. To improve clarity, we propose to remove the last sentence *of* existing paragraph (a)(2) *of* sections 780.25 and 784.16 and redesignate the remainder *of* that paragraph as paragraph (a)(2)(i). The last sentence *of* existing paragraph (a)(2) would be redesignated as paragraph (a)(2)(ii). Existing subparagraphs (a)(2)(i) through (iv) would be redesignated as subparagraphs (a)(2)(ii)(A) through (D). We propose to make these redesignations because the last sentence *of* existing paragraph (a)(2) and existing subparagraphs (i) through (iv) apply to all structures meeting the criteria *of* 30 CFR 77.216(a), while the remainder *of* existing paragraph (a)(2) applies only to those impoundments that meet the Class B or C criteria (now the Significant Hazard Class or High Hazard Class criteria, respectively) for dams in the U.S. Department *of* Agriculture publication Technical Release No. 60, ``Earth Dams and Reservoirs.'' We propose to revise redesignated paragraph (a)(2)(i) *of* these sections to update the incorporation by reference *of* U.S. Department *of* Agriculture publication ``Earth Dams and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, October 1985), by replacing the reference to the October 1985 edition with a reference to the superseding July 2005 edition. Consistent with the terminology in the newer edition, we propose to replace references to Class B or C dam criteria with references to Significant Hazard Class or High Hazard Class criteria, respectively. (The actual criteria remain unchanged.) The newer publication is not available from the National Technical Information Service, but is available online from the Natural Resources Conservation Service (the successor to the Soil Conservation Service). Consequently, we propose to delete the ordering information pertinent to the National Technical Information Service and replace it with the URL (Web address) at which the publication may be reviewed and from which it may be downloaded without charge. We also propose to update the address and location *of* our administrative record room and to update the URL information (Web address) for the National Archives and Records Administration. To improve clarity and consistency with other regulations, we propose to revise paragraph (c)(2) by replacing the term ``Mine Safety and Health Administration'' with a citation to 30 CFR 77.216(a), which contains the MSHA impoundment criteria to which paragraph (c)(2) refers. As revised, paragraph (c)(2) requires that plans for impoundments meeting MSHA criteria comply with MSHA's impoundment [[Page 48899]] design requirements at 30 CFR 77.216-2. We are proposing to delete the existing requirement that those plans also comply with 30 CFR 77.216-1. The deleted requirement is not germane to permit applications and plans because it contains signage requirements that apply only to impoundments that already exist or are under construction. We also propose to combine existing paragraph (d), which addresses coal processing waste banks, and existing paragraph (e), which addresses coal processing waste dams and embankments, into a substantially revised paragraph (d), and to redesignate paragraph (f) as paragraph (e). The last paragraph also would be revised to reflect plain language principles and to include classification terminology consistent with the 2005 edition *of* NRCS Technical Release No. 60, as discussed in the context *of* the proposed changes to 30 CFR 780.25(a)(2)(i). Proposed paragraph (d)(1) contains new general requirements for all structures constructed *of* or impounding coal mine waste; i.e., refuse piles and slurry impoundments. Subparagraph (d)(1)(i)(A) provides that the application must identify a reasonable range *of* alternative disposal methods and alternative locations for any proposed refuse piles or coal mine waste impoundments and impounding structures. Subparagraph (d)(1)(i)(B) provides that the application must include an analysis *of* the viability and environmental impacts (both terrestrial and aquatic) *of* each alternative identified. Subparagraph (d)(1)(i)(C) requires that the applicant select the alternative that would have the least overall adverse environmental impact, including adverse impacts on water quality and aquatic ecosystems, to the extent possible. The proposed rule clarifies that an alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology, and that the least costly alternative may not be selected at the expense *of* environmental protection solely on the basis *of* cost. If another alternative considered would be more environmentally protective than the alternative selected by the applicant, the application must demonstrate, to the satisfaction *of* the regulatory authority, that implementation *of* the more environmentally protective alternative is not possible. When construction *of* the proposed refuse pile or coal mine waste impoundment would involve placement *of* coal mine waste in waters *of* the United States, proposed paragraph (d)(1)(ii) requires that the analysis performed under paragraph (d)(1)(i)(B) include an evaluation *of* the short-term and long-term impacts *of* each alternative on the aquatic ecosystem, both individually and on a cumulative basis. The analysis also must consider impacts on the physical, chemical, and biological characteristics *of* downstream flows, including seasonal variations in temperature and volume, changes in stream turbidity or sedimentation, the degree to which the coal mine waste may introduce or increase contaminants, the effects on aquatic organisms, and the extent to which wildlife is dependent upon those organisms. In addition, if the applicant must prepare an analysis *of* alternatives for the proposed refuse pile or coal mine waste impoundment or impounding structure under 40 CFR 230.10, which sets forth requirements for individual permits for placement *of* fill material in waters *of* the United States under section 404 *of* the Clean Water Act, proposed paragraph (d)(1)(ii) provides that the application may initially include a copy *of* that analysis in lieu *of* the analysis *of* alternatives required under proposed paragraph (d)(1)(i)(B). The regulatory authority must then determine the extent to which the Clean Water Act analysis satisfies the analytical requirements *of* proposed paragraph (d)(1). When OSM is the regulatory authority, we will coordinate with the Corps *of* Engineers in conducting any necessary analysis *of* alternatives under the National Environmental Policy Act. The rationale for these new requirements is set forth in Parts III, IV, and V *of* this preamble. In essence, the new requirements would, in part, implement section 515(b)(24) *of* SMCRA, which provides that *surface* coal *mining* and reclamation operations must use the best technology currently available to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible. The new requirements would achieve this goal by requiring that the permit applicant demonstrate that the proposed operation has been designed to minimize adverse impacts on land and waters and that environmental factors have been taken into consideration when locating and designing the refuse pile or coal mine waste impoundment. We are proposing these rule changes to improve the analysis *of* permit applications and permitting decisions under SMCRA. However, the addition *of* these provisions also may facilitate achieving the coordinated processing *of* coal *mining* permit applications in accordance with a memorandum *of* understanding entitled ``Memorandum *of* Understanding among the U.S. Army Corps *of* Engineers, the U.S. *Office* *of* *Surface* *Mining*, the U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service for the Purpose *of* Providing Concurrent and Coordinated Review and Processing *of* *Surface* Coal *Mining* Applications Proposing Placement *of* Dredged and/or Fill Material in Waters *of* the United States,'' which took effect February 8, 2005. For example, the information and analysis submitted under the proposed rule may assist the Corps *of* Engineers in its review *of* preconstruction notifications submitted under Nationwide Permits 21, 49, or 50, or, if an individual permit is needed under section 404 *of* the Clean Water Act, compliance with the Section 404(b)(1) Guidelines at 40 CFR part 230 concerning placement *of* dredged or fill materials in waters *of* the United States. The provisions in the proposed rule that would allow the applicant to select an alternative other than the most environmentally protective alternative if implementation *of* the most environmentally protective alternative is not possible are consistent with paragraphs (b)(10)(B)(i) and (24) *of* section 515 *of* the Act, both *of* which require use *of* the best technology currently available to achieve the requirements *of* those sections ``to the extent possible.'' The proposed rule clarifies that an alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology, and that the least costly alternative may not be selected at the expense *of* environmental protection solely on the basis *of* cost. See also the discussion *of* the meaning *of* ``to the extent possible'' in Part VI.K. *of* this preamble, as well as the meaning *of* ``best technology currently available'' in Part VI.L. *of* this preamble. We seek comment on whether this approach is an appropriate interpretation *of* the phrase ``to the extent possible'' in SMCRA. Proposed paragraph (d)(2) provides that each application for an operation that will generate or dispose *of* coal mine waste must describe the steps to be taken to avoid or, if avoidance is not possible, to minimize the adverse environmental impacts that may result from the construction *of* refuse piles and coal mine waste impoundments and impounding structures. This requirement applies to construction, maintenance, and reclamation *of* the alternative selected under paragraph (d)(1)(i)(C). It also would implement, in part, the sedimentation prevention requirements *of* sections 515(b)(10)(B)(i) [[Page 48900]] and 516(b)(9)(B) *of* SMCRA and the fish, wildlife, and related environmental value protection requirements *of* sections 515(b)(24) and 516(b)(11) *of* SMCRA. Proposed paragraph (d)(3) is substantively identical to existing paragraph (d). We propose to delete the cross-reference to section 816.84 in existing section 780.25(d) and the cross-reference to section 817.84 in existing section 784.16(d) because proposed sections 780.25(d)(3) and 784.16(d)(3), like existing sections 780.25(d) and 784.16(d), pertain only to refuse piles, not to the coal mine waste impounding structures to which sections 816.84 and 817.84 apply. Proposed paragraph (d)(4) is substantively identical to existing paragraph (e). We propose to delete the cross-reference to section 816.83 in existing section 780.25(e) and the cross-reference to section 817.83 in existing section 784.16(e) because proposed sections 780.25(d)(4) and 784.16(d)(4), like existing sections 780.25(e) and 784.16(e), pertain only to coal mine waste impoundments and impounding structures, not to the refuse piles to which sections 816.83 and 817.83 apply. In addition, we propose to delete the requirement in existing sections 780.25(e) and 784.16(e) that each plan for an impounding structure comply with 30 CFR 77.216-1, which contains MSHA requirements for signage for existing impoundments and impoundments under construction. There is no reason to retain this cross-reference because the referenced requirement is not relevant to preparation *of* plans or permit applications for proposed impoundments. Proposed paragraph (e) is substantively identical to existing paragraph (f). Consistent with the terminology in the July 2005 edition *of* Technical Release No. 60, we propose to replace references to Class B or C dam criteria with references to Significant Hazard Class or High Hazard Class criteria, respectively. The actual criteria remain unchanged. C. Sections 780.28 and 784.28: Activities in or Adjacent to Waters *of* the United States Proposed sections 780.28 and 784.28 contain permitting requirements specific to waters *of* the United States, as regulated under the Clean Water Act, 33 U.S.C. 1311, 1362, and activities within or adjacent to those waters. Among other things, they would replace the existing stream buffer zone rules at 30 CFR 816.57(a)(1) and 817.57(a)(1), which provide that the regulatory authority may authorize activities on the *surface* *of* lands within 100 feet *of* a perennial or intermittent stream only upon finding that the 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. Paragraph (a) *of* the proposed rules provides that sections 780.28 and 784.28 apply to applications to conduct activities in waters *of* the United States or on the *surface* *of* lands near waters *of* the United States to the extent that those waters are regulated under the Clean Water Act. This paragraph reflects the fact that, under 30 CFR 816.57(a) and 817.57(a), we propose to prohibit disturbance *of* the *surface* *of* lands within 100 feet *of* all waters *of* the United States, not just perennial and intermittent streams as under existing 30 CFR 816.57 and 817.57. Sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B) and (11) *of* SMCRA, which form the basis for the existing stream buffer zone rules, are not limited to preventing or minimizing adverse impacts on perennial and intermittent streams. The change that we are proposing recognizes that waters such as lakes, ponds, and wetlands also may have value for fish, wildlife, and related environmental resources and that sedimentation and sediment-laden runoff from mine sites could degrade that value. However, we do not anticipate that this change in terminology will result in a significant expansion in the applicability *of* our rules because the vast majority *of* waters that may be affected by *surface* coal *mining* and reclamation operations are perennial and intermittent streams. If we ultimately adopt this proposal, both the SMCRA regulatory authority and permit applicants would no longer be able to use or rely upon the definitions *of* ``perennial stream'' and ``intermittent stream'' in 30 CFR 701.5 to determine when the prohibitions *of* 30 CFR 816.57(a) and 817.57(a) apply. Permit applicants may request a jurisdictional determination from the U.S. Army Corps *of* Engineers before submitting a SMCRA permit application in situations in which there is a question as to whether waters within or adjacent to the proposed permit area are waters *of* the United States under the Clean Water Act. Similarly, we anticipate that the SMCRA regulatory authority would consult and coordinate with the Corps *of* Engineers in situations in which there is a question as to whether waters within or adjacent to the proposed permit area are waters *of* the United States under the Clean Water Act. In effect, under the proposed rule, permit applicants must receive a jurisdictional determination from the Corps *of* Engineers before the SMCRA permitting process can be completed if there is any question as to whether the proposed permit area includes or is adjacent to any waters that may be waters *of* the United States. We seek comment on the impact *of* this change on the administration *of* SMCRA regulatory programs and, whether the benefits (increased environmental protection and consistency with the Clean Water Act) outweigh any problems identified. We will carefully evaluate all comments received before deciding whether to adopt the rule as proposed or retain the scope *of* the existing rules, which apply to perennial and intermittent streams. We are not soliciting comment on the interpretation *of* the term ``waters *of* the United States'' under the Clean Water Act. That issue lies outside the scope *of* this rulemaking. Proposed section 780.28(b) specifies that the maps prepared under 30 CFR 779.25, 780.14 or 780.21(b)(2) must show all waters *of* the United States that are located either within the proposed permit area or within the adjacent area, as that term is defined at 30 CFR 701.5. Proposed section 784.28(b) contains identical requirements for underground *mining* operations, with the substitution *of* cross- references to 30 CFR 783.25, 784.23, and 784.14(b)(2), respectively. Both rules also require that the maps delineate all lands within the proposed permit area that are within 100 feet, measured horizontally, *of* any waters *of* the United States. This requirement is intended to ensure that the maps submitted with the permit application include sufficient detail about waters *of* the United States within the proposed permit area and the adjacent area to determine what lands within the proposed permit area are potentially subject to the prohibition under 30 CFR 816.57(a) or 817.57(a). The 100 feet must be measured from the ordinary high water mark *of* the stream or other waters *of* the United States, consistent with the Corps *of* Engineers' practices for establishing jurisdictional limits for waters *of* the United States. For wetlands without an ordinary high water mark, the 100 feet must be measured in a manner consistent with the Corps' practices for wetland delineations under the Clean Water Act. See the online version *of* the 1987 ``Corps *of* Engineers Wetlands Delineation Manual'' (https:// www.nwo.usace.army.mil/html/od-rne/87-manual.pdf ), which includes [[Page 48901]] updates subsequent to the original January 1987 publication date. Paragraph (b) *of* proposed sections 780.28 and 784.28 establishes requirements for requesting a variance from the prohibition in 30 CFR 816.57(a) and 817.57(a) on *surface* activities that would disturb the *surface* *of* lands within 100 feet, measured horizontally, *of* any waters *of* the United States. Under paragraph (c), the permit application must describe any measures that would be implemented in lieu *of* maintaining the 100-foot buffer, including the extent *of* any lesser buffer to be maintained, and explain how the proposed measures constitute the best technology currently available to-- (1) Prevent the contribution *of* additional suspended solids to streamflow or runoff outside the permit area to the extent possible; and (2) Minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible. Paragraph (c) would not apply to the activities listed in proposed 30 CFR 816.57(b) and 817.57(b) because those activities are exempt from the prohibition in 30 CFR 816.57(a) and 817.57(a). Therefore, the applicant does not need a variance to conduct them in or within 100 feet *of* waters *of* the United States. However, the applicant will need to make the demonstration required under proposed paragraph (e) *of* 30 CFR 780.28 and 784.28 and the regulatory authority will need to make the findings required under that paragraph before approving a permit that authorizes those activities. See Part VI.I. *of* this preamble for a request for comment on whether the list *of* activities in proposed 30 CFR 816.57(b) and 817.57(b) is sufficiently comprehensive to include all activities that inherently occur in waters *of* the United States or whether additional rules are needed to address activities that are not included in either paragraph (a) or (b) *of* those sections. Paragraph (d) *of* proposed sections 780.28 and 784.28 specifies that, before approving any measures proposed under paragraph (c), the regulatory authority must determine that the measures-- (1) Would be no less effective in meeting the requirements *of* the regulatory program than the prohibition in 30 CFR 816.57(a) or 817.57(a) on disturbance *of* the *surface* *of* lands within 100 feet *of* waters *of* the United States; and (2) Constitute the best technology currently available to-- (i) Prevent the contribution *of* additional suspended solids to streamflow or to runoff outside the permit area to the extent possible; and (ii) Minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible. Paragraph (e) *of* proposed sections 780.28 and 784.28 provides that, if the permit applicant proposes to conduct any *surface* *mining* activities (or, for underground mines, *surface* activities) that are not subject to the prohibition in 30 CFR 816.57(a) or 817.57(a), the application must demonstrate, and the regulatory authority must find, that, to the extent possible, the operation will utilize the best technology currently available in accordance with 30 CFR 816.41(d) and 816.97(a) [or, for underground mines, 30 CFR 817.41(d) and 817.97(a)], as required by 30 CFR 780.16(b) and 780.21(h) [or, for underground mines, 30 CFR 784.21(b) and 784.14(g)]. The regulations at 30 CFR 816.41(d) and 817.41(d) require, in relevant part, that *mining* operations prevent, to the extent possible using the best technology currently available, additional contribution *of* suspended solids to streamflow outside the permit area. They implement, in part, the sedimentation prevention requirements *of* sections 515(b)(10)(B)(i) and 516(b)(9)(B) *of* SMCRA, respectively. The regulations at 30 CFR 816.97(a) and 817.97(a) require, in relevant part, that, to the extent possible using the best technology currently available, *mining* operations minimize disturbances and adverse impacts on fish, wildlife, and related environmental values. They implement, in part, the fish and wildlife protection requirements *of* sections 515(b)(24) and 516(b)(11) *of* SMCRA, respectively. The regulations at 30 CFR 780.21(h) and 784.14(g) require that each permit application include a hydrologic reclamation plan designed to implement, among other things, the requirements *of* 30 CFR 816.41(d) and 817.41(d), respectively. The regulations at 30 CFR 780.16(b) and 784.21(b) require that each permit application include a fish and wildlife protection and enhancement plan designed to implement the requirements *of* 30 CFR 816.97(a) and 817.97(a), respectively. Paragraph (f) *of* proposed sections 780.28 and 784.28 summarizes the relationship between SMCRA permitting actions and Clean Water Act requirements. Paragraph (f)(1) provides 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. This provision would in part implement section 508(a)(9) *of* SMCRA, which requires that each permit application include ``the steps to be taken to comply with applicable air and water quality laws and regulations * * *.'' It also is intended to facilitate coordination *of* permitting activities under SMCRA and the Clean Water Act. Paragraph (f)(2) *of* proposed sections 780.28 and 784.28 specifies that, if the permit application meets all applicable requirements *of* subchapter G (the permitting regulations), the regulatory authority will process the permit application and may issue the permit before the applicant obtains all necessary authorizations under the Clean Water Act, 33 U.S.C. 1251 et seq. This arrangement may facilitate the Corps *of* Engineers review *of* any preconstruction notification submitted by the permit applicant with respect to any proposed placement *of* fill material in waters *of* the United States. Nationwide Permits 21, 49, and 50, as issued by the Corps, apply only if the SMCRA permit has already been issued or if the application is being processed as part *of* an integrated permit processing procedure. See 72 FR 11092, 11184, and 11191, March 12, 2007. For informational purposes, proposed paragraph (f)(2) also provides that the permittee may not initiate any activities for which Clean Water Act authorization or certification is required until that authorization or certification is obtained. We seek comment on whether this provision should remain informational or whether we should revise our rules to require inclusion *of* this provision as a SMCRA permit condition, which would mean that the prohibition on initiation *of* activities before obtaining all necessary Clean Water Act authorizations and certifications would be independently enforceable under SMCRA. Proposed 30 CFR 780.28(c) and (d) and 784.28(c) and (d) would replace the requirement in existing 30 CFR 816.57(a) and 817.57(a) that the regulatory authority make the finding specified in paragraph (a)(1) *of* those rules before authorizing activities that would disturb the *surface* *of* lands within 100 feet *of* a perennial or intermittent stream. The rationale for this change appears in Part III *of* this preamble and in the following discussion *of* how the proposed rule changes would better implement the statutory provisions underlying the existing stream buffer zone rules. The first SMCRA provision underlying the existing stream buffer zone rules is section 515(b)(10)(B)(i), [[Page 48902]] which, in context, 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 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 and during reclamation by-- (A) * * * (B)(i) conducting *surface* coal *mining* operations so as to prevent, to the extent possible using the best technology currently available, additional contributions *of* suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess *of* requirements set by applicable State or Federal law. * * * * * The second provision, 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. The existing stream buffer zone rules at 30 CFR 816.57 and 817.57 manifest an assumption that maintenance *of* an undisturbed 100-foot buffer around perennial and intermittent streams is the best technology currently available to achieve the sediment control and fish and wildlife protection requirements *of* sections 515(b)(10)(B)(i) and (24) with respect to those streams. However, that specificity is inconsistent with the concept *of* best technology currently available, which is inherently flexible, as discussed below. Appropriate measures may vary from site to site and may change over time in concert with advances in technology and scientific knowledge. Therefore, we propose to revise our rules to allow the regulatory authority to modify the prohibition on disturbances to the *surface* *of* land within 100 feet *of* waters *of* the United States. That modification would apply in situations in which the applicant proposes (and the regulatory authority approves) alternative methods *of* implementing the requirement to use the best technology currently available to the extent possible. Under proposed 30 CFR 780.28(c) and (d) and 784.28(c) and (d), the regulatory authority may approve a lesser buffer, or the use *of* a technique that does not involve the maintenance *of* any buffer, whenever the permit applicant demonstrates that a lesser buffer or the use *of* alternative *mining* or reclamation techniques would constitute the best technology currently available to (1) prevent the contribution *of* additional suspended solids to streamflow or runoff outside the permit area to the extent possible, and (2) minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible. The latter two requirements correspond to the two statutory requirements that have historically been described as the basis for the existing stream buffer zone rules and their predecessors. Under the proposed rules, the regulatory authority also would have to first find that the proposed techniques would be no less effective in meeting the requirements *of* the regulatory program than the prohibition in 30 CFR 816.57(a) or 817.57(a) on activities that would disturb the *surface* *of* lands within 100 feet *of* waters *of* the United States. Our proposed approach also is consistent with the definition *of* ``best technology currently available'' at 30 CFR 701.5. In relevant part, the definition provides that, ``[w]ithin the constraints *of* the permanent program, the regulatory authority shall have the discretion to determine the best technology currently available on a case-by-case basis, as authorized by the Act and this chapter.'' In concert with this change, we propose to remove the provision in existing 30 CFR 816.57(a)(1) and 817.57(a)(1) that specifies that, before authorizing an activity closer than 100 feet to a perennial or intermittent stream, the regulatory authority must find that the activity 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. That requirement has no direct counterpart in either section 515(b)(10)(B)(i) or section 515(b)(24) *of* SMCRA, which, as previously discussed, are the two provisions *of* SMCRA that form the basis for the buffer zone rules. We acknowledge that the introductory language *of* sections 515(b)(10) and 516(b)(9) *of* SMCRA provides that performance standards for *surface* coal *mining* operations must include a requirement for the minimization *of* disturbances to the quality and quantity (or, in the case *of* section 516(b)(9), just the quantity) *of* water in *surface* and ground water systems. However, that language does not stand alone as an independent requirement. Instead, when read in its entirety, section 515(b)(10) provides that the requirement for minimization *of* disturbances to water quality and quantity must be achieved by implementation *of* the measures and techniques described in subparagraphs (A) through (F) *of* section 515(b)(10). Similarly, section 516(b)(9) provides that the requirement for minimization *of* disturbances to water quantity must be achieved by implementation *of* subparagraphs (A) and (B) *of* section 516(b)(9). In addition, sections 515(b)(10)(B)(i) and 516(b)(9)(B) refer only to the prevention *of* additional contributions *of* suspended solids. While those paragraphs provide that contributions *of* suspended solids to streamflow must not be in excess *of* requirements set by applicable State or Federal law, they do not mention any other water quality parameter. Therefore, that provision by itself does not authorize the required finding in existing 30 CFR 816.57(a)(1) and 817.57(a)(1) that we propose to remove. Furthermore, the SMCRA regulatory authority is not necessarily in the best position to determine whether a proposed activity will cause or contribute to a violation *of* applicable State or Federal water quality standards for any parameter. Those standards and parameters are established and implemented under the authority *of* the Clean Water Act (33 U.S.C. 1251 et seq.), not SMCRA, and are sometimes administered by an agency other than the SMCRA regulatory authority. Under 30 CFR 780.18(b)(9) and 784.13(b)(9), the SMCRA permit application must include a description *of* the steps to be taken to comply with the requirements *of* the Clean Air Act (42 U.S.C. 7401 et seq.), the Clean Water Act (33 U.S.C.1251 et seq.), and other applicable air and water quality laws and regulations, but there is no requirement that the SMCRA regulatory authority pass judgment on the adequacy *of* that description or on the adequacy *of* the steps that the applicant proposes to take. In addition, the absolute nature *of* the ``will not adversely affect'' language *of* existing 30 CFR 816.57(a)(1) and 817.57(a)(1) is inconsistent with paragraphs (b)(10)(B)(i) and (24) *of* section 515 *of* the Act, both *of* which provide that *surface* coal *mining* operations must be conducted to meet the requirements *of* those paragraphs ``to the extent possible'' using the ``best technology currently available.'' The appropriate standard under section 515(b)(24) is minimization *of* adverse [[Page 48903]] impacts on fish, wildlife, and related environmental values, not absolute avoidance *of* all adverse effects. As discussed more fully in Part III.C. *of* this preamble, the preamble to the existing stream buffer zone rules (``the 1983 preamble'') recognizes that the protection afforded by those rules need not be absolute. It acknowledges that some adverse impacts on hydrology and fish, wildlife, and related environmental values are unavoidable because *of* the nature *of* *surface* coal *mining* operations. Furthermore, the 1983 preamble states that ``OSM recognizes that some *surface* *mining* activities can be conducted within 100 feet *of* a perennial or an intermittent stream without causing significant adverse impacts on the hydrologic balance and related environmental values,'' thus implying that some adverse impacts would occur. 48 FR 30313, col. 1, June 30, 1983, emphasis added. Similarly, ``final Sec. 816.57 is intended to protect significant biological values in streams.'' Id., col. 3, emphasis added. And, with respect to stream diversions, the 1983 preamble specifies that-- Alteration *of* streams may have adverse aquatic and ecological impacts on both diverted stream reaches and other downstream areas with which they merge. However, final Sec. 816.57(a) will minimize these impacts * * *. Id. at 30315, col. 1, emphasis added. Our proposed removal *of* the requirement in existing 30 CFR 816.57(a)(1) and 817.57(a)(1) for a finding concerning applicable State or Federal water quality standards would not authorize activities that would constitute or result in a violation *of* State or Federal water quality standards. Section 702(a)(2) *of* SMCRA provides that nothing in SMCRA may be construed as superseding, amending, modifying, or repealing the Clean Water Act, its implementing regulations, State laws enacted pursuant to the Clean Water Act, or other Federal laws relating to preservation *of* water quality. In addition, our regulations at 30 CFR 816.42 and 817.42 require that discharges *of* water from disturbed areas ``be made in compliance with all applicable State and Federal water quality laws and regulations.'' We seek comment on whether we should amend 30 CFR 816.42 and 817.42, which currently address only discharges *of* water, to include a paragraph specifying, for informational purposes, that discharges *of* dredged or fill materials in waters *of* the United States must comply with all applicable State and Federal requirements. D. Section 780.35: Disposal *of* Excess Spoil From *Surface* Mines For the reasons discussed in Part IV *of* this preamble, we propose to revise 30 CFR 780.35 by adding several new requirements (in paragraphs (a)(1) through (4)) for permit applications for operations that propose to generate excess spoil. First, under proposed paragraph (a)(1), each application for an operation that would generate excess spoil must include a demonstration, prepared to the satisfaction *of* the regulatory authority, that the operation has been designed to minimize the volume *of* excess spoil to the extent possible, thus ensuring that as much spoil as possible is returned to the mined-out area. The demonstration must take into consideration applicable regulations concerning restoration *of* the approximate original contour, safety, stability, and environmental protection and the needs *of* the proposed postmining land use. Some or all *of* those factors may limit the amount *of* spoil that can be returned to the mined-out area, especially the requirements related to safety, stability, and postmining land use. Also, if the regulatory authority does not approve the proposed postmining land use, the applicant and the regulatory authority will need to revisit the demonstration to determine whether it must be revised to reflect the needs and attributes *of* the postmining land use that is finally approved. Second, proposed paragraph (a)(2) requires that the application include a demonstration that the designed maximum cumulative volume *of* all proposed excess spoil fills within the permit area is no larger than the capacity needed to accommodate the anticipated cumulative volume *of* excess spoil that the operation will generate. The goal *of* both requirements is to minimize fill footprints and thus minimize disturbances *of* forest, streams, and riparian vegetation, consistent with the requirement in sections 515(b)(24) and 516(b)(11) *of* SMCRA to minimize disturbances *of* and adverse impacts to fish, wildlife, and related environmental values to the extent possible using the best technology currently available. Third, proposed paragraph (a)(3)(i) provides that each application must include a description *of* all excess spoil disposal alternatives considered and an analysis *of* the environmental impacts *of* those alternatives. The analysis must consider impacts to both terrestrial and aquatic ecosystems. The alternatives must vary with respect to the number, size, location, and configuration *of* proposed fills to ensure consideration *of* a reasonable range *of* alternatives and potential environmental impacts. For example, depending on the topography and geology *of* the area, the analysis could compare the impacts *of* constructing a few large excess spoil fills versus a greater number *of* small fills. In addition, the quality *of* the receiving waters must be taken into consideration in that it may be environmentally preferable to concentrate fills and their impacts in watersheds with the lowest water quality, to the extent that it is possible to do so. When the disposal method would involve placement *of* excess spoil in waters *of* the United States, proposed paragraph (a)(3)(ii) requires that the analysis performed under paragraph (a)(3)(i) include an evaluation *of* the short-term and long-term impacts *of* each alternative on the aquatic ecosystem, both individually and on a cumulative basis. The analysis must consider impacts on the physical, chemical, and biological characteristics *of* downstream flows, including seasonal variations in temperature and volume, changes in stream turbidity or sedimentation, the degree to which the excess spoil may introduce or increase contaminants, the effects on aquatic organisms, and the extent to which wildlife is dependent upon those organisms. Proposed paragraph (a)(3)(ii) also provides that, if the applicant must prepare an analysis *of* alternatives for the proposed excess spoil fill under 40 CFR 230.10, which sets forth requirements for individual permits for placement *of* fill material in waters *of* the United States under section 404 *of* the Clean Water Act, 33 U.S.C. 1344, the application may initially include a copy *of* that analysis in lieu *of* the analysis *of* alternatives required under proposed paragraph (a)(3). The regulatory authority then must determine the extent to which the Clean Water Act analysis satisfies the requirement for an analysis *of* alternatives under paragraph (a)(3). When OSM is the regulatory authority, we will coordinate with the Corps *of* Engineers in conducting any necessary analysis *of* alternatives under the National Environmental Policy Act. Proposed paragraph (a)(3)(iii) specifies that, to the extent possible, the applicant must select the alternative that would have the least overall adverse environmental impact, including adverse impacts on water quality and aquatic ecosystems. If another alternative considered would be more environmentally protective than [[Page 48904]] the alternative selected by the applicant, the application must demonstrate, to the satisfaction *of* the regulatory authority, that implementation *of* the more environmentally protective alternative is not possible. The rule clarifies that an alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology, and that the least costly alternative may not be selected at the expense *of* environmental protection solely on the basis *of* cost. The alternative selected need not necessarily be the one with the least adverse impact to aquatic ecosystems. Under 40 CFR 230.10(a), which is part *of* the Clean Water Act Section 404(b)(1) Guidelines, no discharge *of* dredged or fill material may be permitted if there is a practicable alternative to the proposed discharge that would have less adverse impact to the aquatic ecosystem, ``so long as the alternative does not have other significant adverse environmental consequences.'' In other words, if the alternative with the least adverse impact to the aquatic ecosystem has other significant adverse environmental impacts, the Clean Water Act rules allow selection *of* a different alternative. Parts III and IV *of* this preamble explain how the requirements that we are proposing in paragraph (a)(3) are consistent with SMCRA. In essence, the new requirements would, in part, implement sections 515(b)(24) and 516(b)(11) *of* SMCRA, which provide that *surface* coal *mining* and reclamation operations must use the best technology currently available to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible. The new requirements would achieve this goal by requiring that the permit applicant take environmental factors into consideration when locating and designing excess spoil fills and by requiring that the permit applicant demonstrate that the proposed operation has been designed using the best technology currently available to minimize adverse environmental impacts to land and waters and related environmental values to the extent possible. The phrase ``to the extent possible,'' which appears in the statutory provisions underlying these proposed rules, connotes an element *of* both economic and technological feasibility, although we do not interpret that phrase as authorizing selection *of* the least expensive alternative at the expense *of* environmental protection solely on the basis *of* cost. See Parts VI.K. and VI.L. *of* this preamble for further discussion *of* the meaning *of* ``to the extent possible'' and ``best technology currently available,'' respectively. We seek comment on whether this approach is an appropriate interpretation *of* the phrase ``to the extent possible'' in sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) *of* SMCRA. We are proposing these rule changes to improve the analysis *of* permit applications and permitting decisions under SMCRA. However, these changes also may facilitate achieving the coordinated processing *of* coal *mining* permit applications in accordance with a memorandum *of* understanding entitled ``Memorandum *of* Understanding among the U.S. Army Corps *of* Engineers, the U.S. *Office* *of* *Surface* *Mining*, the U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service for the Purpose *of* Providing Concurrent and Coordinated Review and Processing *of* *Surface* Coal *Mining* Applications Proposing Placement *of* Dredged and/or Fill Material in Waters *of* the United States,'' which took effect February 8, 2005. For example, the information and analysis that the permit applicant must submit under the proposed rule may assist the Corps *of* Engineers in its review *of* preconstruction notifications submitted under Nationwide Permits 21, 49, or 50, or, if an individual permit is needed under section 404 *of* the Clean Water Act, compliance with the Section 404(b)(1) Guidelines at 40 CFR part 230 concerning placement *of* dredged or fill materials in waters *of* the United States. Fourth, proposed paragraph (a)(4) provides that each application must include a description *of* the steps that the permit applicant proposes to take to avoid adverse environmental impacts that may result from the construction *of* fills or, if avoidance is not possible, to minimize those impacts. This requirement applies to construction, maintenance, and reclamation *of* the alternative selected under proposed paragraph (a)(3). It also would implement, in part, the sedimentation prevention requirements *of* sections 515(b)(10)(B)(i) and 516(b)(9)(B) *of* SMCRA and the fish, wildlife, and related environmental value protection requirements *of* sections 515(b)(24) and 516(b)(11) *of* SMCRA. We anticipate that the steps mentioned in proposed paragraph (a)(4) would include provisions in the operation plan to require that, when consistent with prudent engineering practice and applicable regulatory requirements, excess spoil placement begin at the highest elevation *of* the planned fill and proceed down the valley to the toe *of* the fill, thus minimizing both impacts to waters *of* the United States and the area affected in the event that the full design capacity *of* the fill is not needed because *of* changes in *mining* plans or other reasons. We seek comment on whether this approach should be incorporated into the rule language. We also propose to substantially reorganize and revise 30 CFR 780.35 for clarity and to incorporate permitting requirements that are currently found in 30 CFR 816.71, which contains the performance standards for excess spoil disposal. Proposed paragraph (a)(5) requires that each application for an operation that proposes to generate excess spoil include maps and cross-section drawings showing the location *of* all proposed disposal sites and structures. It also requires that fills be located on the most moderately sloping and naturally stable areas available, unless the regulatory authority approves a different location based upon the alternatives analysis under proposed paragraph (a)(3) or other factors, taking into account other requirements *of* the Act and regulations. When possible, fills must be placed upon or above a natural terrace, bench, or berm if that location would provide additional stability and prevent mass movement. The requirement for maps and cross-section drawings currently appears in the first sentence *of* existing 30 CFR 780.35(a), while the fill location requirements in proposed paragraph (a)(5) are currently found in existing 30 CFR 816.71(c). We believe that those location requirements are more logically included as part *of* the planning and design requirements in the permitting regulations rather than as part *of* the performance standards. In addition, we propose to modify the requirement in the existing rule that fills be located on the most moderately sloping and naturally stable areas available. The proposed rule allows the regulatory authority to approve different locations, based upon the analysis *of* alternatives required under proposed paragraph (a)(3) and other relevant factors. This change is needed to ensure that the analysis *of* alternatives and consideration *of* environmental impacts are a meaningful part *of* the site selection process. The proposed change is consistent with section 515(b)(22)(E) *of* SMCRA, which requires that excess spoil be placed ``upon the most moderate slope among those upon which, in the judgment *of* the regulatory authority, the spoil could be placed in compliance with all the requirements *of* the Act.'' One *of* the requirements *of* the Act is the provision in section 515(b)(24) specifying that *surface* coal *mining* and reclamation operations must [[Page 48905]] be conducted so as to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible, using the best technology currently available. Implementation *of* that requirement may entail placement *of* spoil on slopes other than the most moderate ones available. Proposed paragraph (a)(6) requires that an application for an operation that would generate excess spoil include detailed design plans for each excess spoil disposal structure, prepared in accordance with the requirements *of* sections 780.35 and 816.71 through 816.74. These requirements correspond to the first sentence *of* existing section 780.35(a), with the addition *of* a cross-reference to section 780.35 in recognition *of* the proposed revisions to that section. The first sentence *of* existing section 780.35(a) also includes a requirement for appropriate maps and cross-section drawings, which we propose to move to section 780.35(a)(5). Proposed paragraph (a)(6) also includes a requirement to design the fill and appurtenant structures using current prudent engineering practices and any additional design criteria established by the regulatory authority. This requirement is not new. It currently appears in the first sentence *of* existing 30 CFR 816.71(b)(1). We propose to move it to 30 CFR 780.35(a)(6) because it is a design requirement, not a performance standard. Proposed paragraph (a)(7) requires that the application include the results *of* a geotechnical investigation *of* each proposed excess spoil disposal site, with the exception *of* those sites at which spoil will be placed only on a pre-existing bench under 30 CFR 816.74. This requirement currently appears in existing section 780.35(b). The proposed rule retains the existing requirements for the contents *of* the geotechnical investigation. Currently located at 30 CFR 780.35(b)(1) through (5), these requirements appear as 30 CFR 780.35(a)(7)(i) through (v) in the proposed rule. We also propose to shift the requirement to conduct sufficient foundation investigations from existing 30 CFR 816.71(d)(1) to 30 CFR 780.35(a)(7). This shift is consistent with our effort to consolidate design requirements in the permitting rules rather than splitting them between the permitting rules and the performance standards. The foundation investigation is an element *of* the geotechnical investigation. Proposed paragraph (a)(8) requires that each application include plans for the construction, operation, maintenance, and reclamation *of* all excess spoil disposal structures (fills) in accordance with the requirements *of* 30 CFR 816.71-816.74. This requirement corresponds to a similar provision in existing 30 CFR 780.35(a). However, the existing rule requires plans for the ``removal, if appropriate, *of* the site and structures.'' Because excess spoil fills are permanent, it is not appropriate to include plans for their removal in the application. Consequently, we propose to replace the requirement for plans for removal *of* the fills with a requirement for plans for their reclamation, which would consist *of* final site preparation and revegetation consistent with the approved postmining land use. Proposed paragraph (a)(9) combines overlapping requirements *of* existing 30 CFR 780.35(c) and 816.71(d)(2) concerning application and design requirements for keyway cuts or rock-toe buttresses. We are not proposing any substantive changes. Proposed paragraph (b) requires that the application include a certification by a qualified registered professional engineer experienced in the design *of* earth and rock fills that the design *of* all fills and appurtenant structures meets the requirements *of* 30 CFR 780.35. This requirement currently appears in the second sentence *of* existing 30 CFR 816.71(b)(1). We propose to move it to section 780.35 consistent with our effort to consolidate design requirements in the permitting rules rather than splitting them between the permitting rules and the performance standards. We are not proposing any substantive changes to this provision. E. Section 784.19: Disposal *of* Excess Spoil From Underground Mines Existing 30 CFR 784.19 applies the same fill construction requirements to both underground development waste and excess spoil. However, on September 26, 1983 (48 FR 44006), we adopted rules that classify underground development waste as coal mine waste, which means that fills constructed *of* underground development waste must adhere to the requirements for refuse piles instead *of* those applicable to excess spoil fills. Consequently, we propose to revise section 784.19 to apply only to the disposal *of* excess spoil, consistent with the revised definitions and performance standards that we adopted on September 26, 1983. For the same reason, we propose to replace the current section title, ``Underground Development Waste,'' with ``Disposal *of* Excess Spoil.'' We also propose to eliminate all references to underground development waste because that waste would instead be regulated under the refuse pile provisions *of* revised section 784.16, consistent with the 1983 rule changes to the definitions and performance standards relating to coal mine waste. The new language *of* section 784.19 is identical to the language *of* proposed 30 CFR 780.35, which establishes permit application requirements for the disposal *of* excess spoil generated by *surface* *mining* activities, except that cross-references to the *surface* *mining* performance standards in part 816 are replaced by cross-references to the underground *mining* performance standards in part 817. In that respect, the proposed rule is similar to existing section 784.19, which incorporates the requirements *of* section 780.35 by cross-reference. F. Sections 816.11 and 817.11: Signs and Markers Existing 30 CFR 816.57(b) and 817.57(b) require that the operator mark buffer zones for perennial and intermittent streams. However, that requirement also appears in 30 CFR 816.11(e) and 817.11(e). We believe that this requirement is more logically placed in sections 816.11 and 817.11, because the title for those sections identifies them as pertaining to signs and markers. Therefore, we propose to consolidate our buffer zone marking requirements in sections 816.11(e) and 817.11(e). We also propose to revise those paragraphs to be consistent with other proposed changes to the existing stream buffer zone rules. As revised, proposed section 816.11(e) provides that the boundaries *of* any buffer to be maintained between *surface* *mining* activities and waters *of* the United States in accordance with 30 CFR 780.28 and 816.57(a) must be clearly marked to avoid disturbance by *surface* *mining* activities. Similarly, proposed section 817.11(e) provides that the boundaries *of* any buffer to be maintained between *surface* activities and waters *of* the United States in accordance with 30 CFR 784.28 and 817.57(a) must be clearly marked to avoid disturbance by *surface* operations and facilities resulting from or in connection with an underground mine. We are not proposing any substantive changes to sections 816.11(e) and 817.11(e). G. Sections 816.43 and 817.43: Diversions Existing 30 CFR 816.43(b)(1) and 817.43(b)(1) provide that the regulatory authority may approve diversion *of* perennial and intermittent streams within the permit area after making the finding relating to stream buffer zones that the diversion will not adversely affect the water quantity and quality and [[Page 48906]] related environmental resources *of* the stream. The referenced finding is the second part *of* the finding in existing 30 CFR 816.57(a)(1) and 817.57(a)(1). We propose to replace this finding with a provision that is more consistent with the underlying provisions *of* SMCRA. Specifically, sections 515(b)(10), 515(b)(24), 516(b)(9), and 516(b)(11) *of* SMCRA do not establish a ``will not adversely affect'' standard. Section 515(b)(10) requires that *surface* coal *mining* and reclamation operations be conducted 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 and during reclamation.'' Section 516(b)(9), which pertains to underground coal *mining* operations, contains similar language with the exception that it does not mention water quality. Sections 515(b)(24) and 516(b)(11) require that *surface* coal *mining* and reclamation operations be conducted to ``minimize disturbances and adverse impacts *of* the operation on fish, wildlife, and related environmental values'' ``to the extent possible using the best technology currently available.'' As demonstrated by these quotes, SMCRA establishes a minimization standard rather than an absolute ``will not adversely affect'' standard with respect to disturbance *of* the hydrologic balance and adverse impacts on fish, wildlife, and related environmental values. Consequently, we propose to revise paragraph (b) *of* 30 CFR 816.43(b)(1) and 817.43(b)(1) to provide that the regulatory authority may approve the diversion *of* perennial and intermittent streams within the permit area if the diversion is located, designed, constructed, and maintained using the best technology currently available to minimize adverse impacts to fish, wildlife, and related environmental values to the extent possible. This provision is consistent with sections 515(b)(24) and 516(b)(11) *of* SMCRA. Nothing in this proposed rule should be construed as superseding the performance standards for the protection *of* fish, wildlife, and related environmental values in 30 CFR 816.97 and 817.97 or the related permitting requirements at 30 CFR 780.16 and 784.21. No counterpart to sections 515(b)(10) or 516(b)(9) is necessary because paragraph (a)(1) *of* 30 CFR 816.43 and 817.43, which applies to diversions *of* all types, including stream-channel diversions, already provides that ``[a]ll diversions shall be designed to minimize adverse impacts to the hydrologic balance within the permit and adjacent areas.'' Furthermore, paragraph (a)(2)(iii) requires that all diversions be designed, located, constructed, maintained, and used to prevent, to the extent possible, using the best technology currently available, additional contributions *of* suspended solids to streamflow outside the permit area.'' The language *of* that paragraph closely resembles the language *of* sections 515(b)(10)(B)(i) and 516(b)(9)(B) *of* the Act, which are two *of* the statutory provisions underlying the existing stream buffer zone rules. The last sentence *of* existing paragraph (a)(3) *of* 30 CFR 816.43 and 817.43 pertains only to stream-channel diversions. Therefore, we propose to move that sentence to paragraph (b) *of* sections 816.43 and 817.43 because those sections contain all other performance standards that pertain only to stream-channel diversions. We propose to insert the sentence as paragraph (b)(4) *of* sections 816.43 and 817.43 and to redesignate existing paragraph (b)(4) as paragraph (b)(5). The last sentence in paragraph (a)(3) *of* the existing rules requires that a permanent stream-channel diversion or a stream channel reclaimed after the removal *of* a temporary diversion be designed and constructed so as to restore or approximate the premining characteristics *of* the original stream channel, including the natural riparian vegetation, to promote the recovery and enhancement *of* the aquatic habitat. In new paragraph (b)(4), we propose to revise that sentence to specify that a permanent stream-channel diversion or a stream channel reclaimed after the removal *of* a temporary diversion must be designed and constructed using natural channel design techniques so as to restore or approximate the premining characteristics *of* the original stream channel, including the natural riparian vegetation and the natural hydrological characteristics *of* the original stream, to promote the recovery and enhancement *of* the aquatic habitat and to minimize adverse alteration *of* stream channels on and off the site, including channel deepening or enlargement, to the extent possible. The new language concerning natural channel design and adverse alteration *of* stream channels would reinforce and clarify the meaning *of* the existing requirement to restore or approximate the premining characteristics *of* the original stream. The goals *of* natural channel design include creating a stream channel that will maintain the equilibrium *of* a natural stream, neither downcutting (degrading) nor filling in (aggrading). A natural channel is not stable in the sense that a concrete, trapezoidal channel is stable. Depending on the stream type, a natural channel may meander, eroding and depositing sediment at natural rates as part *of* its dynamic equilibrium. The channel must pass the water and sediment that it receives downstream, and the channel must maintain a connection to the stream's floodplain. The new provisions are consistent with sections 515(b)(24) and 516(b)(11) *of* SMCRA, which require use *of* the best technology currently available to minimize adverse impacts to fish, wildlife, and other environmental values to the extent possible. We seek comment on whether the proposed revisions to 30 CFR 816.43(b) and 817.43(b) are sufficient to meet the requirements *of* SMCRA, or whether we should also revise our permitting rules to include a requirement for submission *of* alternatives and an analysis *of* the environmental impacts *of* each alternative whenever the applicant proposes to mine through waters *of* the United States or divert perennial or intermittent streams. The requirements would be similar to the corresponding requirements for excess spoil fills and coal mine waste disposal facilities in proposed 30 CFR 780.25(d)(1) and 780.35(a)(3) for *surface* mines or 784.16(d)(1) and 784.19(a)(3) for underground mines. We anticipate that alternatives would vary with respect to the number *of* stream segments diverted, the length *of* segments diverted, diversion design, construction technique, location *of* the diversion, and whether the diversion is temporary or permanent. We invite comment on whether these alternatives are consistent with SMCRA and whether there are other alternatives that should be considered. Finally, we propose to redesignate existing paragraph (b)(4) *of* sections 816.43 and 817.43 as paragraph (b)(5) and revise that paragraph to require that a qualified registered professional engineer certify the design and construction *of* all stream-channel restorations. The existing rule applies that requirement only to diversions *of* perennial and intermittent streams. We are proposing the additional requirement because stream-channel restorations are equally significant in terms *of* stability and environmental concerns; i.e., reconstructed stream channels should be safe and stable and should approximate premining conditions regardless *of* whether the channel is a diversion or a restoration *of* the original channel. [[Page 48907]] H. Sections 816.46 and 817.46: Siltation Structures Paragraph (b)(2) *of* existing 30 CFR 816.46 and 817.46 requires that all *surface* drainage from the disturbed area be passed through a siltation structure before leaving the permit area. In essence, that paragraph prescribes siltation structures (sedimentation ponds and other treatment facilities with point-source discharges) as the best technology currently available for sediment control. However, existing paragraph (b)(2) was struck down upon judicial review because the court found that the preamble to the rulemaking in which it was adopted did not articulate a sufficient basis for the rule under the Administrative Procedure Act. The court stated that the preamble did not adequately discuss the benefits and drawbacks *of* siltation structures and alternative sediment control methods and did not enable the court ``to discern the path taken by [the Secretary] in responding to commenters' concerns'' that siltation structures in the West are not the best technology currently available. See In re: Permanent *Surface* *Mining* Regulation Litigation II, Round III, 620 F. Supp. 1519, 1566-1568 (D.D.C. July 15, 1985). On November 20, 1986 (51 FR 41961), we suspended the rules struck down by the court. To avoid any confusion that may result from the continuing publication *of* those rules in the Code *of* Federal Regulations, we are proposing to remove paragraph (b)(2) *of* 30 CFR 816.46 and 817.46 and redesignate the remaining paragraphs *of* those sections accordingly. This action would supersede the 1986 suspension *of* paragraph (b)(2) *of* those regulations. Sections 816.45 and 817.45, which remain unchanged by this rule, set forth various measures and techniques that may constitute the best technology currently available for sediment control, although applicants and regulatory authorities are not limited to those measures and techniques. I. Sections 816.57 and 817.57: Activities in or Adjacent to Waters *of* the United States 1. General Description *of* Proposed Changes We propose to extensively revise and reorganize 30 CFR 816.57 and 817.57 for the reasons discussed in Parts III and VI.C. *of* this preamble and further explained below. The existing stream buffer zone rules at 30 CFR 816.57(a) and 817.57(a) contain both permitting requirements and performance standards. The rules that we are proposing today would separate the two for clarity and consistency. Revised sections 816.57 and 817.57 would include only performance standards. As discussed in Part VI.C. *of* this preamble, we propose to extensively revise the permitting elements *of* the existing stream buffer zone rules and move them to new sections 780.28 and 784.28. We propose to delete the provision in existing 30 CFR 816.57(a)(2) and 817.57(a)(2) that requires the regulatory authority to make a finding that any proposed temporary or permanent stream-channel diversion will comply with 30 CFR 816.43 or 817.43. We find this provision to be unnecessary because the obligation to comply with the stream-channel diversion requirements *of* section 816.43 or 817.43 is independent *of* any cross-reference in section 816.57(a)(2) or 817.57(a)(2). We also propose to delete existing paragraph (b) *of* sections 816.57 and 817.57, which provides that the area not to be disturbed must be designated as a buffer zone and marked as specified in 30 CFR 816.11 or 817.11. This deletion is not a substantive change because the requirement to mark the area to be left undisturbed also appears in 30 CFR 816.11(e) and 817.11(e), which we are proposing to revise for clarity and consistency as discussed in Part VI.F. *of* this preamble. Some commenters have requested that the language proposed for deletion be retained because it functions as a de facto definition *of* ``buffer zone.'' We do not see the need to do so in view *of* the reduced usage *of* the term ``buffer zone'' in the revised rules and the fact that the term ``buffer'' has a commonly understood meaning for which no regulatory definition is needed because the rules do not use the term in any manner that would deviate from the dictionary definition. However, we seek comment on whether a formal regulatory definition *of* buffer or buffer zone would be useful. We propose to revise 30 CFR 780.28, 784.28, 816.57, and 817.57 to apply to all waters *of* the United States, not just to perennial and intermittent streams as in existing 30 CFR 816.57 and 817.57. We are proposing this change because waters other than perennial and intermittent streams may be *of* significant value to fish and wildlife and thus should be protected in accordance with the requirements *of* sections 515(b)(24) and 516(b)(11) *of* SMCRA. The proposed change also better harmonizes the SMCRA regulatory program with regulatory programs under the Clean Water Act, especially the section 404 regulatory program, which governs placement *of* dredged and fill materials into waters *of* the United States. For further discussion *of* this change, please refer to Part VI.C. *of* this preamble. 2. Proposed Paragraph (a) We propose to revise paragraph (a) *of* 30 CFR 816.57 and 817.57 to specify that the permittee or operator may not conduct *surface* activities that would disturb the *surface* *of* land within 100 feet, measured horizontally, *of* waters *of* the United States unless the permit authorizes the disturbance under section 780.28 or 784.28 or unless the activities are allowed under proposed 30 CFR 816.57(b) or 30 CFR 816.57(b). We propose to retain the 100-foot buffer requirement in paragraph (a) *of* the existing rules, but all other provisions *of* existing paragraph (a) would be modified, deleted, or moved to 30 CFR 780.28 and 784.28 (see Part VI.C. *of* this preamble). 3. Proposed Paragraph (b) Proposed paragraph (b) provides that the prohibition in paragraph (a) does not apply to the following activities: (1) *Mining* through waters *of* the United States; (2) Placement *of* bridge abutments, culverts, or other structures in or near waters *of* the United States to facilitate crossing *of* those waters; (3) Construction *of* sedimentation pond embankments in waters *of* the United States; and (4) Construction *of* excess spoil fills and coal mine waste disposal facilities in waters *of* the United States. Proposed paragraph (b) also specifies, for purposes *of* clarity, that persons conducting the activities listed in paragraphs (b)(1) through (4) must comply with all other applicable requirements *of* the regulatory program. Paragraph (b)(1) further emphasizes that *mining* through waters *of* the United States must comply with the requirements *of* 30 CFR 816.43(b) or 817.43(b) if the *mining* involves the temporary or permanent diversion *of* a perennial or intermittent stream. Paragraph (b)(2) emphasizes that the placement *of* bridge abutments, culverts, or other structures to facilitate the crossing *of* waters *of* the United States must comply with the road design, construction, and maintenance requirements *of* 30 CFR 816.150 and 816.151 or, for railroad spurs, with the support facility requirements *of* 30 CFR 816.181. For underground *mining* operations, the appropriate cross-references are 30 CFR 817.150, 817.151, and 817.181, respectively. Paragraph (b)(3) emphasizes that construction *of* sedimentation pond embankments in waters *of* the United States must comply with the requirements *of* 30 CFR [[Page 48908]] 816.45(a) or 817.45(a). Paragraph (b)(4) emphasizes that excess spoil fills must comply with the requirements *of* 30 CFR 816.71(a) and (f) or 817.71(a) and (f). It also provides a reminder that coal mine waste disposal facilities must comply with the pertinent requirements *of* 30 CFR 816.81(a), 816.83(a), and 816.84, or, for underground *mining* operations, 30 CFR 817.81(a), 817.83(a), and 817.84, respectively. Specifying the activities to which the prohibition on disturbance does not apply should reduce the confusion that has sometimes arisen regarding implementation *of* the existing stream buffer zone rules (see Part III.C. *of* this preamble). We intend that the list *of* activities in paragraph (b) include, among other things, the universe *of* activities that inherently involve placement *of* fill material into waters *of* the United States as part *of* *surface* coal *mining* and reclamation operations. We invite comment on whether the list meets this goal and, if not, how any other activities that involve placement *of* fill material into waters *of* the United States as part *of* *surface* coal *mining* and reclamation operations should be regulated under SMCRA with respect to this rule. Paragraph (a) applies to all activities within 100 feet *of* waters *of* the United States except to the extent that those activities also appear in paragraph (b). Paragraph (b) is intended to include all activities that inherently occur in waters *of* the United States, as well as some that inherently occur near those waters. We seek comment on whether additional rules are needed to address activities that may not included in either paragraph (a) or (b). Not all coal *mining* operations involve placement *of* fill material in waters *of* the United States or disturbance *of* the *surface* *of* lands within 100 feet *of* those waters. However, the nature *of* *surface* coal *mining* and reclamation operations and the topography *of* the areas within which those operations occur, as discussed in part below and in Part II *of* this preamble, mean that many operations will affect waters *of* the United States and adjacent areas. In general, there are five classes *of* activities that may take place in or near waters *of* the United States as part *of* *surface* coal *mining* and reclamation operations: (1) Activities adjacent to, but not in, waters *of* the United States. Common examples *of* those activities include spoil and topsoil storage and the construction or use *of* roads or buildings. (2) *Mining* through streams and other waters *of* the United States, with the original stream being either temporarily or permanently diverted in accordance with 30 CFR 816.43 or 817.43. (3) Placement *of* bridge abutments, culverts, or other structures in or near waters *of* the United States to facilitate crossing those waters. (4) Construction *of* sedimentation pond embankments in waters *of* the United States. These embankments usually provide temporary sediment control. They must be removed unless the regulatory authority approves their retention as permanent impoundments as part *of* the postmining land use. (5) Activities that permanently fill portions *of* a stream channel or other waters *of* the United States; i.e., construction *of* excess spoil fills or coal mine waste disposal facilities in waters *of* the United States. Neither SMCRA nor the Clean Water Act precludes any *of* the activities listed above, provided the activities comply with all applicable requirements *of* those laws and their implementing regulations. Part III.A. *of* this preamble explains the extent to which either SMCRA or its legislative history contemplates the activities listed above. Specifically, section 515(b)(22)(D) mentions the construction *of* excess spoil fills in areas containing natural watercourses, springs, and wet-weather seeps. In addition, the legislative history *of* SMCRA indicates that Congress anticipated the continued construction *of* coal mine waste impoundments in streams. As discussed in Part III.C. *of* this preamble, Congress, in developing the legislation that ultimately became SMCRA, specifically considered and rejected inclusion *of* an absolute prohibition on disturbance *of* land within 100 feet *of* certain waters *of* the United States. While we subsequently adopted stream buffer zone rules as part *of* our regulations implementing SMCRA, those rules did not operate as an absolute prohibition on disturbance *of* the buffer zone. In addition, as discussed in Part III.D. *of* this preamble, we and the states have historically interpreted the existing stream buffer zone rules as allowing placement *of* fill material in waters *of* the United States, subject to approval *of* that placement under the Clean Water Act. The rules that we are proposing today would remove any lingering ambiguity regarding this interpretation. The existing stream buffer zone rules effectively prescribe maintenance *of* a 100-foot undisturbed zone between *mining* activities and streams as the best technology currently available to fulfill the sediment control and fish and wildlife protection requirements *of* sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) *of* SMCRA. However, the concept *of* a buffer zone as the best technology currently available is best suited to activities in the first category because those activities do not require disturbance *of* the streambed or other waters or immediately adjacent lands. By contrast, all activities in the other four categories necessarily occur within or immediately adjacent to the streambed or other waters, which means that an undisturbed buffer between those activities and the stream or other waters inherently cannot be maintained. Consequently, paragraphs (b)(1) through (4) *of* proposed 30 CFR 816.57 and 817.57 exempt those four categories *of* activities from the prohibition in paragraph (a) on disturbance *of* the buffer zone. Instead, proposed 30 CFR 780.28(d) and 784.28(d) provide that the permit applicant must demonstrate (and the regulatory authority must find) that other measures and techniques will meet the requirement to use the best technology currently available to prevent offsite sedimentation and to minimize adverse impacts to fish, wildlife, and related environmental values. Paragraph (c) *of* proposed 30 CFR 816.57 and 817.57 also includes provisions reiterating that the permittee must comply with all other permitting requirements and performance standards relating to implementation *of* the statutory requirements underlying this proposed rule and the existing stream buffer zone rules. SMCRA does not specifically contemplate every activity listed in paragraphs (b)(1) through (4) *of* the proposed rules. However, as previously noted, those activities are sometimes necessary for the conduct *of* certain *surface* coal *mining* operations. In those situations, the purpose *of* SMCRA as expressed in section 102(f) must be taken into consideration. That paragraph specifies that one *of* the purposes *of* SMCRA is to-- (f) assure that the coal supply essential to the Nation's energy requirements, and to its economic and social well-being is provided and strike a balance between protection *of* the environment and agricultural productivity and the Nation's need for coal as an essential source *of* energy. Under section 201(c)(2), we have the authority to publish ``such rules and regulations as may be necessary to carry out the purposes and provisions *of* this Act.'' Proposed paragraph (b) *of* 30 CFR 816.57 and 817.57 is intended to strike the balance to which section 102(f) refers. First, it facilitates energy production by providing an exception from the prohibition on conducting [[Page 48909]] activities that would disturb the *surface* *of* lands within 100 feet *of* waters *of* the United States. Second, it facilitates environmental protection by limiting the exception to those activities that are essential to the conduct *of* *surface* coal *mining* operations and by requiring that operations availing themselves *of* the exception adopt other measures to comply with the sedimentation control and fish and wildlife protection requirements *of* SMCRA. The preceding paragraphs set forth the basis and purpose *of* proposed paragraph (b). We are providing additional descriptions and discussion *of* each proposed exception below. To the extent that the discussion identifies selected other SMCRA regulatory requirements that apply to those activities or structures, the listing *of* applicable regulatory requirements is by no means exhaustive. Proposed Paragraph (b)(1): *Mining* Through Waters *of* the United States *Mining* through waters *of* the United States is an activity that we propose to categorize as exempt from the prohibition on disturbance *of* the *surface* *of* lands within 100 feet *of* waters *of* the United States because it is not possible to maintain an undisturbed buffer around the original waters when *mining* through a stream or other waters *of* the United States. The permittee must comply with the requirements *of* 30 CFR 816.43(b) or 817.43(b) if the *mining* involves the permanent or temporary diversion *of* a perennial or intermittent stream. Part VI.G. *of* this preamble explains how we propose to revise 30 CFR 816.43 and 817.43 to incorporate provisions corresponding to those *of* existing 30 CFR 816.57(a)(1) and 817.57(a)(1) and how those provisions, as revised, in combination with existing provisions *of* 30 CFR 816.43 and 817.43, better reflect the statutory provisions underlying the existing stream buffer zone rules. Proposed Paragraph (b)(2): Structures for Crossing Waters *of* the United States Our existing regulations at 30 CFR 816.151(d)(6) and 817.151(d)(6) contain standards governing the types *of* structures that primary mine roads may use to cross perennial and intermittent streams. Any low- water crossings must be designed, constructed and maintained to prevent erosion *of* the structure or the streambed and additional contributions *of* suspended solids to streamflow. Sections 816.151(c)(2) and 817.151(c)(2) prohibit the use *of* stream fords for primary roads unless they are approved by the regulatory authority as temporary routes during road construction. All mine access and haul roads, whether primary or not, must comply with 30 CFR 816.150(b) or 817.150(b). Those regulations include language similar to the sedimentation control and fish and wildlife protection requirements *of* sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) *of* SMCRA. Also, under our existing regulations, support facilities, which may include railroads, must comply with 30 CFR 816.181 and 817.181. Paragraph (b) *of* 30 CFR 816.181 and 817.181 includes language similar to the sedimentation control and fish and wildlife protection requirements *of* sections 515(b)(10)(B)(i), 516(b)(9)(B), 515(b)(24), and 516(b)(11) *of* SMCRA. Proposed paragraph (b)(3): Sedimentation pond embankments in waters *of* the United States Both the 1979 and 1983 versions *of* our permanent regulatory program regulations prohibit the placement *of* sedimentation ponds in perennial streams unless approved by the regulatory authority. See 30 CFR 816.46(a)(2) (1979) and 816.46(c)(1)(ii) (1983). However, the preamble to the 1979 rules explains that construction *of* sedimentation ponds in streams typically is a necessity in steep-slope *mining* conditions: Sedimentation ponds must be constructed prior to any disturbance *of* the area to be drained into the pond and as near as possible to the area to be disturbed. [Citation omitted.] Generally, such structures should be located out *of* perennial streams to facilitate the clearing, removal and abandonment *of* the pond. Further, locating ponds out *of* perennial streams avoids the potential that flooding will wash away the pond. However, under design conditions, ponds may be constructed in perennial streams without harm to public safety or the environment. Therefore, the final regulations authorize the regulatory authority to approve construction *of* ponds in perennial streams on a site-specific basis to take into account topographic factors. [Citation omitted.] * * * * * Commenters suggested allowing construction *of* sedimentation ponds in intermittent and perennial streams. Because *of* the physical, topographic, or geographical constraints in steep-slope *mining* areas, the valley floor is often the only possible location for a sediment pond. Since the valleys are steep and quite narrow, dams must be high and must be continuous across the entire valley in order to secure the necessary storage. * * * * * The *Office* recognizes that *mining* and other forms *of* construction are presently undertaken in very small perennial streams. Many Soil Conservation Service (SCS) [now the Natural Resources Conservation Service] structures are also located in perennial streams. Accordingly, OSM believes these cases require thorough examination. Therefore, the regulations have been modified to permit construction *of* sedimentation ponds in perennial streams only with approval by the regulatory authority. 44 FR 15159-60, March 13, 1979. In short, sedimentation ponds must be constructed where there is sufficient storage capacity, which, in narrow valleys lacking natural terraces, usually means in the stream. A letter dated March 1, 2006, from Benjamin Grumbles, Assistant Administrator *of* the Environmental Protection Agency, to John Paul Woodley, Assistant Secretary *of* the Army (Civil Works), confirms that this practice also is acceptable under the Clean Water Act for *surface* coal *mining* operations in the Appalachian Mountains. It further states that, under the Clean Water Act, the stream segment between the *mining* activity (the toe *of* the fill, in the situation addressed by the letter) and the sedimentation pond will be considered part *of* the treatment system, not waters *of* the United States. The sedimentation pond must be constructed as close to the toe *of* the fill as practicable to minimize temporary adverse environmental impacts associated with construction and operation *of* the waste treatment system. As a condition *of* approval, the Corps also requires that the stream segment be restored as soon as the *mining* operation is completed and the pond is no longer needed for treatment purposes. At that time, the stream segment will once again be classified as waters *of* the United States. However, under SMCRA, the pond may be retained as a permanent impoundment if approved by the regulatory authority in accordance with the criteria in 30 CFR 816.49(b) or 817.49(b). We believe that the existing rules at 30 CFR 816.46(c)(1)(ii) and 817.46(c)(1)(ii), can be applied in a manner consistent with the March 1, 2006, letter from the Environmental Protection Agency discussed above. In particular, 30 CFR 816.46(c)(1)(ii) and 817.46(c)(1)(ii) require that all sedimentation ponds be placed as near as possible to the disturbed area that they serve. We interpret this provision as meaning that sedimentation ponds collecting runoff from excess spoil fills must be constructed as close to the toe *of* the fill as possible. We also believe that application *of* the existing rules in this manner will properly implement the intent *of* Congress in enacting SMCRA, as expressed in section 102(f) *of* the Act, which provides that one *of* [[Page 48910]] the purposes *of* the Act is to strike a balance between energy production and environmental protection. However, we seek comment on whether it would be appropriate or helpful to revise those rules by replacing the term ``perennial streams'' with ``waters *of* the United States'' or whether we should more clearly specify the conditions under which the regulatory authority may approve placement *of* sedimentation ponds in perennial streams or other waters *of* the United States. Proposed Paragraph (b)(4): Construction *of* Excess Spoil Fills and Coal Mine Waste Disposal Facilities in Waters *of* the United States Part III *of* this preamble explains the rationale for this exemption. As discussed in Parts IV, VI.B., VI.D., VI.E., and VI.J., we are proposing to revise our rules to require that, to the extent possible using the best technology currently available, operations be designed and constructed to minimize both the creation *of* excess spoil and the adverse environmental impacts that may result from excess spoil and coal mine waste disposal facilities. Proposed 30 CFR 780.35(a) and 784.19(a) require the applicant to demonstrate to the satisfaction *of* the regulatory authority that the operation has been designed to minimize the generation *of* excess spoil to the extent possible, taking into consideration applicable regulations concerning approximate original contour restoration, safety, stability, and environmental protection and the needs *of* the proposed postmining land use. Under the proposed rules, the applicant also must demonstrate that the designed maximum cumulative volume *of* all excess spoil fills proposed for the operation is no larger than needed to accommodate the anticipated volume *of* excess spoil that the operation will generate. In addition, the proposed rules require that the applicant analyze the environmental impacts *of* a reasonable range *of* alternatives for excess spoil disposal facilities, including varying the size, number, configuration, and location *of* fills. The applicant must select the alternative with the least overall adverse environmental impact or demonstrate, to the satisfaction *of* the regulatory authority, why implementation *of* that alternative is not possible. With respect to coal mine waste, proposed 30 CFR 780.25(d) and 784.16(d) require that the applicant consider and evaluate the viability and environmental impacts *of* a reasonable range *of* disposal methods and alternative locations for refuse piles and coal mine waste impoundments. The applicant must select the alternative with the fewest overall adverse environmental impacts or demonstrate, to the satisfaction *of* the regulatory authority, why implementation *of* that alternative is not possible. 4. Proposed Paragraph (c) Proposed paragraph (c) *of* 30 CFR 816.57 provides that the activities listed in paragraph (b); i.e., activities exempt from the prohibition on disturbance *of* the *surface* *of* lands within 100 feet *of* waters *of* the United States, must comply with paragraphs (b)(10)(B)(i) and (b)(24) *of* section 515 *of* the Act and the regulations implementing those provisions *of* the Act. Those regulations include the requirement in 30 CFR 816.41(d)(1) that *surface* *mining* activities be conducted according to the plan approved under 30 CFR 780.21(h) and that earth materials, ground-water discharges, and runoff be handled in a manner that prevents, to the extent possible using the best technology currently available, additional contributions *of* suspended solids to streamflow outside the permit area; and otherwise prevents water pollution. They also include the requirement in 30 CFR 816.45(a) that appropriate sediment control measures be designed, constructed, and maintained using the best technology currently available to prevent, to the extent possible, additional contributions *of* sediment to streamflow or to runoff outside the permit area. And they include the requirement in 30 CFR 816.97(a) that the operator must, to the extent possible using the best technology currently available, minimize disturbances and adverse impacts on fish and wildlife and related environmental values and achieve enhancement *of* those resources where practicable. Proposed paragraph (c) *of* 30 CFR 817.57 includes virtually identical requirements with the exception that it refers to paragraphs (b)(9) and (11) *of* section 516 *of* SMCRA in place *of* the references to section 515, and it replaces references to the *surface* *mining* regulations in parts 780 and 816 with references to the corresponding underground *mining* regulations in parts 784 and 817. Proposed paragraph (c) does not impose any new requirements. We are including it to reiterate for informational purposes that an activity that is exempt from the prohibition on disturbance *of* the *surface* *of* lands within 100 feet *of* waters *of* the United States is not exempt from other requirements *of* the regulatory program. 5. Proposed Paragraph (d) Proposed paragraph (d) *of* 30 CFR 816.57 and 817.57 provides that a permittee may not initiate any activities under paragraph (b); i.e., activities exempt from the prohibition on disturbance *of* the *surface* *of* lands within 100 feet *of* waters *of* the United States, until the permittee obtains all necessary certifications and authorizations under sections 401, 402, and 404 *of* the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344. As with proposed paragraph (c), proposed paragraph (d) does not impose any new requirements. We are including it as a reminder that, under paragraphs (a) and (a)(2) *of* section 702 *of* SMCRA, nothing in SMCRA (and, by extension, regulations adopted under SMCRA) may be construed as superseding, amending, modifying, or repealing the Clean Water Act or any state or federal rules adopted under the Clean Water Act. As discussed in Part VI.C. *of* this preamble, we seek comment on whether a similar provision in proposed 30 CFR 780.28(f) and 784.28(f) should remain informational or whether we should revise our rules to require inclusion *of* this provision as a SMCRA permit condition, which would mean that the prohibition on initiation *of* activities before obtaining all necessary Clean Water Act authorizations and certifications would be independently enforceable under SMCRA. J. Sections 816.71 and 817.71: General Requirements for Disposal *of* Excess Spoil We propose to revise paragraph (a) *of* 30 CFR 816.71 and 817.71 by adding subparagraph (a)(4) to implement, in part, the requirements *of* sections 515(b)(24) and 516(b)(11) *of* the Act. Sections 515(b)(24) and 516(b)(11) require that *surface* coal *mining* and reclamation operations be conducted to ``minimize disturbances and adverse impacts *of* the operation on fish, wildlife, and related environmental values'' ``to the extent possible using the best technology currently available.'' The new subparagraph requires that excess spoil be placed in designated disposal areas within the permit area in a controlled manner to minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible using the best technology currently available. We seek comment on whether the addition *of* this performance standard would be a meaningful addition to our rules or whether its requirements are effectively subsumed within the permitting requirements in proposed 30 CFR [[Page 48911]] 780.35 and 784.19 and the provisions *of* proposed 30 CFR 816.71(c) and 817.71(c). We are not proposing any changes to subparagraph (a)(1) *of* existing 30 CFR 816.71 and 817.71. That subparagraph is the counterpart to sections 515(b)(10) and 516(b)(9) *of* SMCRA, which require in relevant part that *surface* coal *mining* and reclamation operations be conducted to minimize disturbances to the prevailing hydrologic balance at the minesite and in associated offsite areas. As previously discussed in Parts VI.D. and VI.E. *of* this preamble, we propose to move paragraphs (b)(1) (design certification), (c) (location), and (d)(1) (foundation investigations) *of* existing 30 CFR 816.71 and 817.71 to 30 CFR 780.35 and 784.19 as part *of* our effort to place provisions that are solely design considerations and requirements in our permitting regulations rather than in the performance standards. We also propose to delete the last sentence *of* paragraph (d)(2) *of* existing 30 CFR 816.71 and 817.71, which requires a stability analysis for rock toe buttresses and keyway cuts, because it duplicates requirements included in both existing and proposed 30 CFR 780.35 and 784.19. Consequently, proposed 30 CFR 816.71(d) and 817.71(d) would consist only *of* the first sentence *of* existing paragraph (d)(2); i.e., it would require that keyway cuts or rock-toe buttresses be constructed to ensure fill stability when the slope in the disposal area exceeds either 2.8h:1v (36 percent) or any lesser slope designated by the regulatory authority based on local conditions. We propose to redesignate paragraph (b)(2) *of* existing 30 CFR 816.71 and 817.71 as paragraph (b) *of* those sections and to expand its provisions to require that the fill not only be designed to attain a minimum static safety factor *of* 1.5 as the existing rules require, but that the fill actually be constructed to attain that safety factor. This change is consistent with section 515(b)(22)(A) *of* the Act, which requires that all excess spoil be placed in a way that ensures mass stability and prevents mass movement. We propose to add a new paragraph (c) to 30 CFR 816.71 and 817.71 to require that the permittee construct the fill in accordance with the design and plans submitted under 30 CFR 780.35 or 784.19 and approved as part *of* the permit. This provision would emphasize that fills must be built on the sites selected under section 780.35 or 784.19 in a manner consistent with the designs submitted under those sections and approved as part *of* the permit. Finally, we propose to remove 30 CFR 817.71(k), which provides that spoil resulting from face-up operations for underground coal mine development may be placed at drift entries as part *of* a cut-and-fill structure if that structure is less than 400 feet in length and is designed in accordance with 30 CFR 817.71. We propose to remove this paragraph because most spoil excavated as part *of* face-up operations and used to construct a mine bench is not excess spoil. As defined in 30 CFR 701.5, excess spoil consists *of* spoil material disposed *of* in a location outside the mined-out area, but it does not include spoil needed to achieve restoration *of* the approximate original contour. In most cases, spoil used to construct the bench for an underground mine will later be used to reclaim the face-up area when the underground mine is finished. That is, the bench will be regraded to cover the mine entry and eliminate any highwall once *mining* is completed and the bench is no longer needed for mine offices, parking lots, equipment storage, conveyor belts, and other *mining*-related purposes. Consequently, this paragraph *of* the regulations does not belong in a section devoted to disposal *of* excess spoil. We are not proposing to move these requirements to another part *of* our rules because we do not find it necessary to impose the design requirements for excess spoil fills (which are permanent structures) on temporary spoil storage structures and support facilities, such as the benches to which 30 CFR 817.71(k) applies. Nor do we find it necessary or appropriate to limit these benches to 400 feet in length. Bench length and configuration are more appropriately determined by operational, topographic, geologic, and other site-specific considerations. However, the regulatory authority has the right to impose design and construction requirements on a case-by-case basis when it determines that those requirements are a necessary prerequisite to making the permit application approval findings specified in 30 CFR 773.15. We seek comment on (1) whether this approach is adequate to accomplish the purposes and requirements *of* SMCRA, (2) whether we should codify the preceding sentence concerning the right *of* the regulatory authority to impose requirements, or (3) whether more specific rules are needed or appropriate. K. What does the phrase ``to the extent possible'' mean in these rules? The requirements *of* sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) *of* SMCRA apply ``to the extent possible.'' Most *of* the rules that we are proposing today include similar language because they are based upon those provisions *of* the Act. Given the wide array *of* circumstances to which these requirements apply and the paucity *of* legislative history, we have elected not to propose a definition *of* the phrase ``to the extent possible'' as part *of* this rulemaking (although, as discussed below, we propose to clarify that in the context *of* the analysis *of* alternatives for excess spoil fills, refuse piles, and coal mine waste impoundments, the term requires consideration *of* cost, logistics, and technology). Instead, we and the State regulatory authorities will continue to determine the meaning *of* that phrase on a case-by-case basis in a manner consistent with section 102(f) *of* SMCRA. That section *of* the Act provides 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 well-being is provided and strike a balance between protection *of* the environment and agricultural productivity and the Nation's need for coal as an essential source *of* energy.'' In addition, section 515(b)(1) *of* SMCRA requires that *surface* coal *mining* operations be conducted ``so as to maximize the utilization and conservation *of* the solid fuel resource being recovered so that reaffecting the land in the future through *surface* coal *mining* can be minimized.'' We believe that the ``to the extent possible'' clause in paragraphs (b)(10)(B)(i) and (24) *of* section 515 *of* SMCRA serves in part to allow balancing the environmental protection requirements *of* those paragraphs with the maximum coal recovery performance standard in section 515(b)(1). Nothing in this discussion should be construed as meaning that the regulatory authority may approve use *of* a less environmentally protective technique or alternative solely because an applicant pleads poverty or argues that use *of* a less environmentally damaging technique or alternative would be more costly. To do so would be inconsistent with both the language and purpose *of* sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) *of* SMCRA, all *of* which also require use *of* the ``best technology currently available.'' Specifically, those provisions *of* the Act specify that their requirements must be achieved ``to the extent possible using the best technology currently available.'' Persons considering a potential coal *mining* operation may include the costs *of* adopting particular technologies as one factor in determining what is possible [[Page 48912]] although they may not reject an environmentally protective alternative solely on the basis *of* cost. Similarly, as part *of* its responsibility to balance coal production with environmental protection, the regulatory authority should not rely solely upon cost considerations in determining the meaning *of* ``to the extent possible.'' Proposed 30 CFR 780.25(d)(1), 780.35(a)(3), 780.16(d)(1), and 784.19(a)(3), require that permit applicants conduct an analysis *of* alternatives for excess spoil fills and coal mine waste disposal structures. Those rules provide that, to the extent possible, permit applicants must select the alternative that would have the least overall adverse environmental impact. The interpretation *of* ``possible'' required under those proposed rules is similar to the way that the term ``practicable'' is applied under 40 CFR 230.10(a)(2) for purposes *of* section 404 *of* the Clean Water Act. That is, the proposed rules state that an alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology. The rules further clarify that the least costly alternative may not be selected under this standard at the expense *of* environmental protection solely on the basis *of* cost. We recognize that the proposed clarification is subjective and we invite comment on whether it could or should be made more objective. On January 7, 2004, 69 FR 1036, 1047, we proposed to adopt a similar phrase (``to the maximum extent possible'') as part *of* 30 CFR 780.18(b)(3). Several commenters suggested that we replace ``possible'' with ``practicable'' or ``technologically and economically feasible.'' Other commenters stated that the proposed language was too vague, but they did not provide suggested replacement language. In this proposed rule, we are not proposing any *of* the previous commenters' suggestions for several reasons. First, ``possible'' is the term used in the pertinent sections *of* SMCRA. Therefore, it is the term that should be used in the regulations implementing those sections *of* the Act. Second, the replacement language suggested by several commenters is no less vague or more specific than ``possible.'' However, we acknowledge that a more specific approach might be desirable and we welcome additional suggestions on how we could define the phrase ``to the extent possible.'' We also received a comment suggesting that, to reduce ambiguity, we propose to incorporate 40 CFR 230.70 through 230.75 (part *of* the Clean Water Act Section 404(b)(1) Guidelines) as part *of* our rules. Our review indicates that 40 CFR 230.70 through 230.75 would have relatively little relevance to *surface* coal *mining* and reclamation operations, but we invite comment on whether incorporation *of* those Clean Water Act rules would be appropriate. L. What does the phrase ``best technology currently available'' mean in these rules? Our regulations at 30 CFR 701.5 define ``best technology currently available'' to mean-- equipment, devices, systems, methods, or techniques which will (a) prevent, to the extent possible, additional contributions *of* suspended solids to stream flow or runoff outside the permit area, but in no event result in contributions *of* suspended solids in excess *of* requirements set by applicable State or Federal laws; and (b) minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement *of* those resources where practicable. The term includes equipment, devices, systems, methods, or techniques which are currently available anywhere as determined by the Director, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling *of* activities and design *of* sedimentation ponds in accordance with 30 CFR parts 816 and 817. Within the constraints *of* the permanent program, the regulatory authority shall have the discretion to determine the best technology currently available on a case-by-case basis, as authorized by the Act and this chapter. We are not proposing to revise that definition. It is a definition that clearly embraces a wide range *of* activities, including those that may not be in routine use, if the regulatory authority determines they are currently available and will work. As such, it is sufficiently flexible to include new techniques developed over time that were not contemplated or in use at the time the definition was promulgated. Similarly, it is sufficiently flexible to include techniques that are not contemplated or in use today. Consequently, we cannot state with specificity what measures would constitute the best technology currently available in all situations. Our regulations at 30 CFR 816.45 and 817.45 address sediment control measures and requirements for all *surface* coal *mining* and reclamation operations. Paragraph (a)(1) *of* those sections reiterates the requirements *of* sections 515(b)(10)(B)(i) and 516(b)(9)(B) *of* SMCRA concerning prevention *of* additional contributions *of* suspended solids to streamflow or runoff outside the permit area. Paragraph (b) *of* those rules lists various measures that may be employed to accomplish the sediment control requirements *of* paragraph (a). At one time, paragraph (b)(2) *of* 30 CFR 816.46 and 817.46 prescribed siltation structures (sedimentation ponds and other treatment facilities with point-source discharges) as the best technology currently available for sediment control. However, that paragraph was struck down upon judicial review because the court found that we did not articulate a sufficient basis for the rule under the Administrative Procedure Act. In particular, the court held that the preamble to the rulemaking did not adequately discuss the benefits and drawbacks *of* siltation structures and alternative sediment control methods and did not enable the court ``to discern the path taken by [the Secretary] in responding to commenters'' concerns'' that siltation structures in the West are not the best technology currently available. See In re: Permanent *Surface* *Mining* Regulation Litigation II, Round III, 620 F. Supp. 1519, 1566-1568 (D.D.C. July 15, 1985). Consequently, on November 20, 1986 (51 FR 41961), we suspended the regulations that the court struck down. On November 13, 1990 (55 FR 47430-47435), we proposed to revise 30 CFR 816.45, 817.45, 816.46(b)(2), and 817.46(b)(2) to reestablish siltation structures as the best technology currently available for sediment control on *surface* coal *mining* and reclamation operations in areas receiving more than 26 inches *of* average annual precipitation. Regulatory authorities in areas with less than that amount *of* precipitation would have been able to specify alternative sediment control measures as the best technology currently available through the program amendment process. Most commenters opposed that approach and we never adopted the proposed rule, in part because it could have inhibited the development and implementation *of* new and innovative practices to control sediment. We decided that the regulatory authority should retain the discretion to determine what sediment control practices constitute the best technology currently available. Our decision not to adopt the 1990 proposed rule meant that the 1986 suspension remained in place. As part *of* this proposed rule, we are proposing to remove the suspended rules to minimize the potential for confusion on the part *of* persons reading the Code *of* Federal Regulations. In addition to the definition *of* best technology currently available in 30 CFR 701.5 and the sediment control [[Page 48913]] regulations at 30 CFR 816.45 and 817.45 discussed above, the legislative history *of* section 515(b)(15)(B)(i) *of* SMCRA provides some guidance as to what measures Congress considered to be the best technology currently available at that time to control sedimentation from minesites: Similarly, technology exists to prevent increased sediment loads resulting from *mining* from reaching streams outside the permit area. Sediment or siltation control systems are generally designed on a mine-by-mine basis which could involve several drainage areas or on a small-drainage-area basis which may serve several mines. There are a number *of* different measures that when applied singly or in combination can remove virtually all sediment or silt resulting from the *mining* operation. A range *of* individual siltation control measures includes: erosion and sediment control structures, chemical soil stabilizers, mulches, mulch blankets, and special control practices such as adjusting the timing and sequencing *of* earth movement, pumping drainage, and establishing vegetative filter strips. H.R. Rep. No. 95-218 at 114 (April 22, 1977). Furthermore, in Directive TSR-3, ``Sediment Control Using the Best Technology Currently Available,'' dated November 2, 1987, we state that we anticipate ``that in most cases sedimentation ponds or some other siltation structure will be BTCA [the best technology currently available]'' for sedimentation control. Finally, the preamble to the 1990 proposed rule lists numerous literature resources concerning the best technology currently available for sedimentation control. See the footnotes at 55 FR 47431-47433, November 13, 1990. The preamble notes that ``[t]he effectiveness *of* specific practices may be restricted to specific areas and be dependent upon variables such as geomorphology, hydrology, climate and engineering design.'' Id. at 47342, col. 1. As previously noted, SMCRA does not limit use *of* the term ``best technology currently available'' to the sediment control requirements *of* sections 515(b)(10)(B)(i) and 516(b)(9)(B). Sections 515(b)(24) and 516(b)(11) *of* SMCRA also require use *of* the best technology currently available to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values. Sections 515(b)(24) and 516(b)(11) are primarily implemented by 30 CFR 816.97 and 817.97, which reiterate and expand upon the statutory requirement to use the best technology currently available to protect and enhance (where practicable) fish, wildlife, and related environmental values. Like the other regulations discussed in this part *of* the preamble, those requirements and the related permitting requirements at 30 CFR 780.16 and 784.21 apply to all aspects *of* *surface* coal *mining* and reclamation operations, including those activities that would not be subject to the prohibition on disturbance *of* the *surface* *of* lands within 100 feet *of* waters *of* the United States under our proposed revisions to 30 CFR 816.57 and 817.57. The preamble to 30 CFR 816.97(a) and 817.97(a) states that those rules ``allow an operator to consult any technical authorities on conservation methods to assure their compliance with the statutory requirement for use *of* the best technology currently available.'' 48 FR 30317, June 30, 1983. We anticipate that State and Federal fish and wildlife, land management, and conservation agencies will be a useful resource in assisting the permittee and the regulatory authority in determining the best technology currently available under 30 CFR 780.16, 784.21, 816.97(a), and 817.97(a). For example, the Bureau *of* Land Management within the U.S. Department *of* the Interior has developed best management practices relating to stream crossings (see http://www.blm.gov/wo/st/en/prog/energy/oil--and--gas/best-- management--practices/technical--information.html ) and the Utah Division *of* Oil, Gas and *Mining* has published ``The Practical Guide to Reclamation in Utah'' (see https://fs.ogm.utah.gov/PUB/MINES/Coal-- Related/RecMan/Reclamation--Manual.pdf ). Chapter 2 *of* the latter document discusses stream restoration and streambank bioengineering. Other measures that might constitute best technology currently available for both sedimentation control and minimization *of* adverse impacts to fish, wildlife, and related environmental values include analysis *of* alternatives during the mine planning process; *mining* and reclamation techniques, and facility construction and operational considerations. In some cases, the best technology currently available may consist primarily *of* minimizing the amount *of* land and waters affected. We anticipate that the analysis *of* alternatives and site selection requirements *of* 30 CFR 780.25(d), 784.16(d), 780.35(a), and 784.19(a) would be the primary means *of* demonstrating use *of* the best technology currently available for disposal *of* excess spoil and coal mine waste, although construction methodology and *mining* and reclamation techniques also may be significant, as discussed in Part VI.D. *of* this preamble with respect to proposed 30 CFR 780.35(a)(4), for example. VII. Are we considering any alternatives to this proposed rule? Yes. The draft environmental impact statement for this proposed rule includes an analysis *of* five rulemaking alternatives, which are summarized below. The proposed rule that we are publishing today reflects Alternative 1, which is our preferred alternative. However, we invite comment on whether we should adopt all or part *of* the other alternatives or variants thereof in lieu *of* all or part *of* the proposed rule. A. No Action Alternative Under this alternative, we would not adopt any new or revised rules. The current regulations applicable to excess spoil generation, coal mine waste disposal, fill construction, and stream buffer zones would remain unchanged. B. Alternative 1: Preferred Alternative This is the alternative that we are proposing to adopt in this proposed rule. In short, under this alternative, we would revise our rules to-- Require the permit applicant to demonstrate that the operation has been designed to minimize the volume *of* excess spoil to the extent possible. Require that excess spoil fills be designed and constructed to be no larger than needed to accommodate the anticipated volume *of* excess spoil that the proposed operation will generate. Require that permit applicants for operations that would generate excess spoil develop various alternative excess spoil disposal plans in which the size, numbers, configuration, and locations *of* the fills vary; submit an analysis *of* the environmental impacts *of* those alternatives; and select the alternative with the least overall adverse environmental impact or demonstrate to the satisfaction *of* the regulatory authority why implementation *of* that alternative is not possible. Require that excess spoil fills be constructed in accordance with the plans approved in the permit and in a manner that minimizes disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible, using the best technology currently available. Require that permit applicants for operations that would include coal mine waste disposal structures identify alternative disposal methods and alternative locations for any disposal structures; analyze the viability and environmental impacts *of* each alternative; and select the alternative [[Page 48914]] with the least overall adverse environmental impact or demonstrate to the satisfaction *of* the regulatory authority why implementation *of* that alternative is not possible. Revise the stream buffer zone rules to apply to all waters *of* the United States and modify the permit application requirements accordingly; identify those activities that are not subject to the prohibition on conducting *mining* and reclamation activities on the *surface* *of* lands within 100 feet *of* waters *of* the United States; consolidate and revise requirements for stream-channel diversions in 30 CFR 816.43 and 817.43, and replace the existing findings regarding stream water quantity and quality and State and Federal water quality standards with language that better correlates with the underlying provisions *of* SMCRA (paragraphs (b)(10)(B)(i) and (24) *of* section 515 and paragraphs (b)(9)(B) and (11) *of* section 516). At the suggestion *of* one *of* the agencies with which we consulted in developing our proposed rule, we also seek comment on a variant *of* this alternative, which, like the proposed rule, would revise the buffer zone rule to apply to all waters *of* the United States, not just to perennial and intermittent streams. Like the proposed rule, it would eliminate paragraph (a)(2) *of* existing 30 CFR 816.57 and 817.57, which contains a requirement for a finding that stream-channel diversions will comply with 30 CFR 816.43 or 817.43. This finding is unnecessary because the referenced rules already apply to all diversions, not just to stream-channel diversions. Also, as in the proposed rule, paragraph (b) *of* existing 30 CFR 816.57 and 817.57, which requires that buffer zones be marked, would be deleted and merged with our other signs and markers requirements at 30 CFR 816.11(e) and 817.11(e). However, the variant otherwise would retain much *of* the existing stream buffer zone rule language at 30 CFR 816.57(a) and 817.57(a), with several modifications. The first modification would revise paragraph (a)(1), which currently requires that the regulatory authority find that the ``*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,'' by inserting the clause ``as indicated by issuance *of* a certification under section 401 *of* the Clean Water Act or a permit under section 402 or 404 *of* the Clean Water Act'' after ``State or Federal water quality standards,'' by replacing the phrase ``adversely affect'' with ``significantly degrade,'' and by replacing the phrase ``*of* the stream'' with ``*of* the waters outside the permit area.'' In addition, this variant would add a new finding that would require minimization *of* disturbances and adverse impacts on fish, wildlife, and other related environmental values *of* the waters to the extent possible using the best technology currently available. Under the variant, the revised rule at 30 CFR 816.57 would read as follows: (a) Except as provided in paragraph (b) *of* this section, no land within 100 feet *of* waters *of* the United States may be disturbed by *surface* *mining* activities. (b) The regulatory authority may specifically authorize *surface* *mining* activities closer to, or through, waters *of* the United States only upon finding that those activities-- (1) Would not cause or contribute to the violation *of* applicable State or Federal water quality standards, as indicated by issuance *of* a certification under section 401 *of* the Clean Water Act or a permit under section 402 or 404 *of* the Clean Water Act; (2) Would not significantly degrade the water quantity or quality or other environmental resources *of* the waters outside the permit area; and (3) Would minimize disturbances and adverse impacts on fish, wildlife, and other related environmental values *of* the waters to the extent possible using the best technology currently available. Apart from its expansion to include all waters *of* the United States, this variant would largely preserve the status quo in terms *of* application *of* the existing stream buffer zone rules. The revised rule language would be more consistent than the existing rule language with the historical application *of* the 1983 stream buffer zone rules and related appellate court decisions, which we discussed earlier in Part III.D. *of* this preamble. The change from ``adversely affect'' to ``significantly degrade'' would replace language *of* uncertain provenance with language similar to that found in the regulations at 40 CFR 230.10(c) implementing section 404 *of* the Clean Water Act, which pertains to placement *of* dredged or fill materials in waters *of* the United States. The proposed new finding in paragraph (a)(3) would reiterate the requirements *of* section 515(b)(24) *of* SMCRA. This variant would include numerous references to Clean Water Act- related procedures and terminology. It would not as closely reflect the language and requirements *of* the underlying provisions *of* SMCRA as would the proposed rule. We seek comment on the benefits and drawbacks *of* this variant as contrasted with the buffer zone rule changes that we are proposing. In particular, we invite comment on the extent to which our rules can or should incorporate broad references to Clean Water Act requirements and use Clean Water Act terminology in place *of* SMCRA terminology. We also invite comment on whether and how our preferred alternative and this variant differ in terms *of* impact on the ability *of* proposed *surface* coal *mining* and reclamation operations to qualify for a nationwide permit under section 404 *of* the Clean Water Act. C. Alternative 2: January 7, 2004, Proposed Rule Under this alternative, we would revise our regulations in a manner similar to that set forth in our January 7, 2004, proposed rule (69 FR 1036). In essence, the changes to our excess spoil regulations would be generally analogous to the changes described in Alternative 1, but we would not make similar changes to our coal mine waste disposal rules. With respect to the stream buffer zone rules, we would 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 replace the Clean Water Act-oriented findings in the existing rule with a 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. Under this alternative, the revised rule would apply to all activities. Persons seeking to conduct *surface* *mining* activities (or, for underground mines, *surface* activities) on the *surface* *of* lands within the buffer *of* protected waters would have to seek and obtain a variance from the regulatory authority in all cases. There would be no categorical exceptions for certain activities as there are under Alternative 1. D. Alternative 3: Change Only the Excess Spoil Regulations Under this alternative, we would revise our excess spoil regulations as described in Alternative 1. We would not revise our coal mine waste disposal [[Page 48915]] rules or the stream buffer zone regulations. E. Alternative 4: Change Only the Stream Buffer Zone Regulations Under this alternative, we would revise our stream buffer zone regulations as described in Alternative 1. We would not revise our excess spoil or coal mine waste disposal regulations. VIII. How do I submit comments on the proposed rule? General Guidance We will review and consider all comments that we receive, but the most helpful comments and the ones most likely to influence the final rule are those that include citations to and analyses *of* SMCRA, its legislative history, its implementing regulations, case law, other pertinent Federal laws or regulations, technical literature, or other relevant publications or that involve personal experience. Your comments should reference a specific portion *of* the proposed rule or preamble, be confined to issues pertinent to the proposed rule, explain the reason for any recommended change or objection, and include supporting data when appropriate. Please include the rule identification number ``RIN 1029-AC04'' at the beginning *of* all written comments. We will log all comments that are received prior to the close *of* the comment period into the docket for this rulemaking; however, we cannot ensure that comments received after the close *of* the comment period (see DATES) or at locations other than those listed above (see ADDRESSES) will be included in the docket for this rulemaking or considered in the development *of* a final rule. Public Availability *of* Comments Before including your address, phone number, or other personal identifying information in your comment, you should be aware that your entire comment--including your personal identifying information--may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Public Hearings We will hold a public hearing on the proposed rule only if we receive a request to do so from more than one person. We will announce the time, date, and address for any hearing in the Federal Register at least 7 days before the hearing. If you wish to testify at a hearing please contact the person listed in FOR FURTHER INFORMATION CONTACT, either orally or in writing, by 4:30 p.m., Eastern time, on September 24, 2007. If no one expresses an interest in testifying at a hearing by that date, we will not hold a hearing. If only one person expresses an interest, we will hold a public meeting rather than a hearing. We will place a summary *of* the public meeting in the docket for this rulemaking. The public hearing will continue on the specified date until all persons scheduled to speak have been heard. If you are in the audience and have not been scheduled to speak but wish to do so, you will be allowed to testify after the scheduled speakers. We will end the hearing after all persons scheduled to speak and persons present in the audience who wish to speak have been heard. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who testifies at a public hearing provide us with a written copy *of* his or her testimony. Public meeting: We may hold a public meeting in place *of* a public hearing if there is only limited interest in a hearing. If you wish to meet with us to discuss the proposed rule, you may request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All meetings will be open to the public and, if appropriate, we will post notice *of* the meetings. We will include a written summary *of* the meeting in the docket for this rulemaking. IX. Procedural Matters and Required Determinations A. Executive Order 12866--Regulatory Planning and Review This proposed rule is considered a ``significant regulatory action'' under Executive Order 12866 and is subject to review by the *Office* *of* Management and Budget (OMB) because it may raise novel legal or policy issues, as discussed in the preamble. With respect to other determinations required under Executive Order 12866-- a. This rule would not have an annual effect *of* $100 million or more on the economy. It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. The revisions contained in the rule are intended to (1) minimize the adverse environmental impacts stemming from the construction *of* excess spoil fills and coal mine waste impoundments and fills, and (2) clarify the circumstances in which the prohibition in the buffer zone rule applies. The revisions are not expected to have an adverse economic impact on states and Indian tribes or the regulated industry. Some *of* the regulatory changes will result in an increase in the costs and burdens placed on coal operators and primacy states. We preliminarily estimate that the total annual cost increase for operators would be approximately $240,500, while the total annual cost increase for primacy states would be approximately $24,200. These increases are a result *of* the requirement to document the analyses and findings required by the revised rules. The cost increases will principally affect those coal operators and states (Kentucky, Virginia, and West Virginia) located in the steep-slope terrain *of* the central Appalachian coalfields, where the bulk *of* excess spoil is generated. Because all regulatory authorities in the Appalachian coalfields have implemented policies to minimize the volume *of* excess spoil disposed *of* outside the mined-out area, we expect no significant additional costs *of* implementing these regulatory changes other than those associated with the alternatives analysis required for the disposal *of* excess spoil and coal mine waste. Because *of* the preliminary nature *of* this assessment, the agency will conduct a more comprehensive analysis to assess the effect *of* this rule for the final rule stage. We request comments, specifically studies or data, that would inform the agency on the effects *of* this rule. b. This rule would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. c. This rule would not alter the budgetary effects *of* entitlements, grants, user fees, or loan programs or the rights or obligations *of* their recipients. B. Executive Order 13211--Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This proposed rule is not considered a significant energy action under Executive Order 13211. The revisions contained in this proposed rule would not have a significant effect on the supply, distribution, or use *of* energy. C. Regulatory Flexibility Act The Department *of* the Interior certifies that this proposed rule would not have a significant economic impact on a substantial number *of* small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). For the reasons [[Page 48916]] previously stated, the revisions would not be expected to have an adverse economic impact on the regulated industry including small entities. Further, the rule would produce no adverse effects on competition, employment, investment, productivity, innovation, or the ability *of* United States enterprises to compete with foreign-based enterprises in domestic or export markets. D. Small Business Regulatory Enforcement Fairness Act This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons stated above, the proposed rule would not-- a. Have an annual effect on the economy *of* $100 million or more. b. Cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions. c. Have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability *of* U.S.-based enterprises to compete with foreign-based enterprises. E. Unfunded Mandates This proposed rule would not impose an unfunded mandate on state, local, or tribal governments or the private sector *of* more than $100 million per year. The rule would not have a significant or unique effect on state, tribal, or local governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1534) is not required. F. Executive Order 12630--Takings Because *of* the nature *of* the rules that would be revised, the proposed rule would not have significant takings implications. G. Executive Order 13132--Federalism For the reasons discussed above, the proposed rule would not have significant federalism implications. Consequently, there is no need to prepare a federalism assessment. H. Executive Order 12988--Civil Justice Reform The *Office* *of* the Solicitor for the Department *of* the Interior has determined that this proposed rule would not unduly burden the judicial system and that it meets the requirements *of* sections 3(a) and 3(b)(2) *of* the Executive Order. I. Executive Order 13175--Consultation and Coordination With Indian Tribal Governments We have evaluated the potential effects *of* this proposed rule on federally recognized Indian tribes and have determined that its provisions would not have substantial direct effects on the relationship between the Federal Government and Indian tribes or on the distribution *of* power and responsibilities between the Federal Government and Indian tribes. J. Paperwork Reduction Act In accordance with 44 U.S.C. 3507(d), we have submitted the information collection and recordkeeping requirements *of* 30 CFR parts 780, 784, 816, and 817 to OMB for review and approval. 30 CFR Part 780 Title: *Surface* *Mining* Permit Applications--Minimum Requirements for Reclamation and Operation Plan. OMB Control Number: 1029-0036. Summary: Sections 507 and 508 *of* the Act contain permit application requirements for *surface* coal *mining* activities, including a requirement that the application include an operation and reclamation plan. The regulatory authority uses this information to determine whether the proposed *surface* coal *mining* operation will achieve the environmental protection requirements *of* the Act and regulatory program. Without this information, OSM and state regulatory authorities could not approve permit applications for *surface* coal mines and related facilities. Bureau Form Number: None. Frequency *of* Collection: Once. Description *of* Respondents: Applicants for *surface* coal *mining* permits and state regulatory authorities. Total Annual Respondents: 232 applicants and 24 state regulatory authorities. Total Annual Burden Hours: 168,871. Non-Labor Cost Burden: $2,424,900. 30 CFR Part 784 Title: Underground *Mining* Permit Applications--Minimum Requirements for Reclamation and Operation Plan. OMB Control Number: 1029-0039. Summary: Among other things, section 516(d) *of* SMCRA, 30 U.S.C. 1266(d), in effect requires applicants for permits for underground coal mines to prepare and submit an operation and reclamation plan for coal *mining* activities as part *of* the application. The regulatory authority uses this information to determine whether the plan will achieve the reclamation and environmental protection requirements *of* the Act and regulatory program. Without this information, OSM and state regulatory authorities could not approve permit applications for underground coal mines and related facilities. Bureau Form Number: None. Frequency *of* Collection: Once. Description *of* Respondents: Applicants for underground coal mine permits and state regulatory authorities. Total Annual Respondents: 62 applicants and 24 state regulatory authorities. Total Annual Burden Hours: 21,761. Non-Labor Cost Burden: $612,106. 30 CFR Parts 816 and 817 Title: Permanent Program Performance Standards--*Surface* and Underground *Mining* Activities. OMB Control Number: 1029-0047. Summary: Sections 515 and 516 *of* the *Surface* *Mining* Control and Reclamation Act *of* 1977 provides that permittees conducting coal *mining* and reclamation operations shall meet all applicable performance standards *of* the regulatory program approved under the Act. The information collected is used by the regulatory authority in monitoring and inspecting *surface* coal *mining* activities to ensure that they are conducted in compliance with the requirements *of* the Act. Bureau Form Number: None. Frequency *of* Collection: Once, on occasion, quarterly and annually. Description *of* Respondents: Coal mine operators, permittees, permit applicants, and state regulatory authorities. Total Annual Respondents: 4,764 permittees and 24 state regulatory authorities. Total Annual Burden Hours: 1,039,351. Non-Labor Cost Burden: $371,046. Comments are invited on: (a) Whether the proposed collection *of* information is necessary for SMCRA regulatory authorities to implement their responsibilities, including whether the information will have practical utility. (b) The accuracy *of* our estimate *of* the burden *of* the proposed collection *of* information. (c) Ways to enhance the quality, utility, and clarity *of* the information to be collected. (d) Ways to minimize the burden *of* collection on the respondents. Under the Paperwork Reduction Act, we must obtain OMB approval *of* all information and recordkeeping requirements. No person is required to respond to an information collection request unless the form or regulation [[Page 48917]] requesting the information has a currently valid OMB control (clearance) number. These numbers appear in sections 780.10, 784.10, 816.10, and 817.10 *of* 30 CFR parts 780, 784, 816, and 817, respectively. To obtain a copy *of* our information collection clearance requests, contact John A. Trelease at (202) 208-2783 or by e-mail at jtrelease@osmre.gov . By law, OMB must respond to us within 60 days *of* publication *of* this proposed rule, but it may respond as soon as 30 days after publication. Therefore, to ensure consideration by OMB, you must send comments regarding these burden estimates or any other aspect *of* these information collection and recordkeeping requirements by September 24, 2007 to the *Office* *of* Management and Budget, *Office* *of* Information and Regulatory Affairs, Attention: Interior Desk Officer, via e-mail to OIRA--DOCKET@omb.eop.gov , or via facsimile to (202) 395-6566. Also, send a copy *of* your comments to John A. Trelease, *Office* *of* *Surface* *Mining* Reclamation and Enforcement, 1951 Constitution Ave., NW., Room 202 SIB, Washington, DC 20240, or electronically to jtrelease@osmre.gov . You may still send comments on the proposed rulemaking to us until 4:30 p.m., Eastern time, on October 23, 2007. K. National Environmental Policy Act We have prepared a draft environmental impact statement (DEIS) for the proposed rule in accordance with the National Environmental Policy Act. You may review the DEIS for this proposed rule online at http:// www.regulations.gov . At that internet address, the document is listed under ``*Office* *of* *Surface* *Mining* Reclamation and Enforcement.'' A notice announcing the availabiltiy *of* the DEIS was published in this edition *of* the Federal Register. That notice also lists OSM offices and public libraries in Kentucky, Tennessee, Virginia, and West Virginia where you may review the DEIS. We will complete a final environmental impact statement and make a finding on the significance *of* any potential impacts before we publish a final rule. L. Clarity *of* This Regulation Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical language or jargon that interferes with its clarity? (3) Does the format *of* the proposed rule (grouping and order *of* sections, use *of* headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more but shorter sections (a ``section'' appears in bold type and is preceded by the symbol ``Sec. '' and a numbered heading; for example, ``Sec. 780.14 Operation plan: Maps and plans.'')? (5) Is the description *of* the proposed rule in the SUPPLEMENTARY INFORMATION part *of* this preamble helpful in understanding the proposed rule? (6) What else could we do to make the proposed rule easier to understand? Send a copy *of* any comments that concern how we could make this proposed rule easier to understand to: *Office* *of* Information and Regulatory Affairs, Department *of* the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: Exsec@ios.doi.gov . List *of* Subjects 30 CFR Part 780 Reporting and recordkeeping requirements, *Surface* *mining*. 30 CFR Part 784 Reporting and recordkeeping requirements, Underground *mining*. 30 CFR Part 816 Environmental protection, Reporting and recordkeeping requirements, *Surface* *mining*. 30 CFR Part 817 Environmental protection, Reporting and recordkeeping requirements, Underground *mining*. Dated: August 3, 2007. C. Stephen Allred, Assistant Secretary, Land and Minerals Management. For the reasons set forth in the preamble, the Department proposes to amend 30 CFR parts 780, 784, 816, and 817 as set forth below. PART 780--*SURFACE* *MINING* PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN 1. The authority citation for part 780 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq. 2. The part heading is revised to read as set forth above. 3. Section 780.10 is revised to read as follows: Sec. 780.10 Information collection. In accordance with 44 U.S.C. 3501 et seq., the *Office* *of* Management and Budget (OMB) has approved the information collection requirements *of* this part and assigned clearance number 1029-0036. Sections 507 and 508 *of* SMCRA contain permit application requirements for *surface* coal *mining* activities, including a requirement that the application include an operation and reclamation plan. The regulatory authority uses this information to determine whether the proposed *surface* coal *mining* operation will achieve the environmental protection requirements *of* the Act and regulatory program. Without this information OSM and state regulatory authorities could not approve permit applications for *surface* coal mines and related facilities. Persons intending to conduct such operations must respond to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection *of* information unless it displays a currently valid OMB control number. 4. Amend Sec. 780.14 by revising paragraphs (b)(11) and (c) to read as follows: Sec. 780.14 Operation plan: Maps and plans. * * * * * (b) * * * (11) Locations *of* each siltation structure, permanent water impoundment, refuse pile, and coal mine waste impoundment for which plans are required by Sec. 780.25 *of* this part, and the location *of* each fill for the disposal *of* excess spoil for which plans are required under Sec. 780.35 *of* this part. (c) Except as provided in Sec. Sec. 780.25(a)(2), 780.25(a)(3), 780.35, 816.73(c), 816.74(c), and 816.81(c) *of* this chapter, cross- sections, maps, and plans required under paragraphs (b)(4), (5), (6), (10), and (11) *of* this section 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 cross-sections, maps, and plans, a qualified, registered, professional land surveyor, with assistance from experts in related fields such as landscape architecture. 5. Amend Sec. 780.25 as follows: A. Revise the section heading, paragraph (a) introductory text, paragraph (a)(1) introductory text, and paragraph (a)(2); B. In paragraph (c)(2), remove the words ``the size or other criteria *of* the [[Page 48918]] Mine Safety and Health Administration'' and add in their place the words ``the criteria in Sec. 77.216(a) *of* this title'', and remove the citation ``Sec. Sec. 77.216-1 and 77.216-2'' and add in its place ``Sec. 77.216-2''; C. Revise paragraph (d); D. Remove paragraph (e), redesignate paragraph (f) as paragraph (e), and revise paragraph (e). The revisions to paragraphs (a), (d), and (e) read as follows: Sec. 780.25 Reclamation plan: Siltation structures, impoundments, and refuse piles. (a) General. Each application must include a general plan and a detailed design plan for each proposed siltation structure, impoundment, and refuse pile within the proposed permit area. (1) Each general plan must-- * * * * * (2)(i) Impoundments meeting the criteria for Significant Hazard Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005), published by the U.S. Department *of* Agriculture, Natural Resources Conservation Service, must comply with the requirements *of* this section for structures that meet the criteria in Sec. 77.216(a) *of* this title. Technical Release No.60 (TR-60) is hereby incorporated by reference. The Director *of* the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may review and download the incorporated document from the Natural Resources Conservation Service's Web site at http://www.info.usda.gov/ scripts/lpsiis.dll/TR/TR--210--60.htm . You may inspect a copy *of* this document as part *of* the docket that we, the *Office* *of* *Surface* *Mining* Reclamation and Enforcement, maintain at 1951 Constitution Avenue, NW., Washington, DC 20240. You also may inspect a copy *of* this document at the National Archives and Records Administration (NARA). For information on the availability *of* this material at NARA, call 202-741- 6030 or go to http://www.archives.gov/federal-register/cfr/ibr- locations.html . (ii) Each detailed design plan for a structure that meets the criteria in Sec. 77.216(a) *of* this title must-- (A) Be prepared by, or under the direction *of*, and certified by a qualified registered professional engineer with assistance from experts in related fields such as geology, land surveying, and landscape architecture; (B) Include any geotechnical investigation, design, and construction requirements for the structure; (C) Describe the operation and maintenance requirements for each structure; and (D) Describe the timetable and plans to remove each structure, if appropriate. * * * * * (d) Coal mine waste impoundments and refuse piles--(1) Analysis *of* alternatives and environmental impacts. (i) If you, the permit applicant, propose to generate or dispose *of* coal mine waste as part *of* your operation, you must-- (A) Identify a reasonable range *of* alternative disposal methods and alternative locations for any proposed refuse piles or coal mine waste impoundments. (B) Include an analysis *of* the viability and environmental impacts *of* each alternative identified. You must consider impacts on both terrestrial and aquatic ecosystems. (C) To the extent possible, select the alternative with the least overall adverse environmental impact, including adverse impacts on water quality and aquatic ecosystems. An alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology. This provision does not authorize selection *of* the least costly alternative at the expense *of* environmental protection solely on the basis *of* cost. If you propose to select an alternative other than the one that provides the most environmental protection, you must demonstrate, to the satisfaction *of* the regulatory authority, why implementation *of* the more environmentally protective alternative is not possible. (ii) For every alternative under paragraph (d)(1)(i)(A) *of* this section that would involve placement *of* coal mine waste in waters *of* the United States, the analysis required under paragraph (d)(1)(i)(B) *of* this section must include an evaluation *of* the short-term and long- term impacts on the aquatic ecosystem, both individually and on a cumulative basis. In evaluating alternatives subject to this paragraph, you must consider impacts on the physical, chemical, and biological characteristics *of* downstream flows, including seasonal variations in temperature and volume, changes in stream turbidity or sedimentation, the degree to which the coal mine waste may introduce or increase contaminants, the effects on aquatic organisms, and the extent to which wildlife is dependent upon those organisms. If you have prepared an analysis *of* alternatives for the proposed impoundment or refuse pile under 40 CFR 230.10, you may initially include a copy *of* that analysis in lieu *of* the analysis *of* alternatives required under paragraph (d)(1)(i)(B) *of* this section. The regulatory authority will determine the extent to which that analysis satisfies the requirements *of* paragraph (d)(1) *of* this section. (2) Avoidance and minimization *of* adverse environmental impacts. Describe the steps that you will take to avoid the adverse environmental impacts that may result from the construction *of* refuse piles or coal mine waste impoundments or, if avoidance is not possible, the steps that you will take to minimize those impacts. (3) Design requirements for refuse piles. Refuse piles must be designed to comply with the requirements *of* Sec. Sec. 816.81 and 816.83 *of* this chapter. (4) Design requirements for impoundments and impounding structures. (i) Impounding structures constructed *of* or intended to impound coal mine waste must be designed to comply with the requirements *of* Sec. Sec. 816.81 and 816.84 *of* this chapter. (ii) The plan for each structure that meets the criteria *of* Sec. 77.216(a) *of* this title must comply with the requirements *of* Sec. 77.216-2 *of* this title. (iii) Each plan for a coal mine waste impoundment must contain the results *of* a geotechnical investigation to determine the structural competence *of* the foundation that will support the proposed impounding structure and the impounded material. An engineer or engineering geologist must plan and supervise the geotechnical investigation. In planning the investigation, the engineer or geologist must-- (A) Determine the number, location, and depth *of* borings and test pits using current prudent engineering practice for the size *of* the impoundment and the impounding structure, the quantity *of* material to be impounded, and subsurface conditions. (B) Consider the character *of* the overburden and bedrock, the proposed abutment sites for the impounding structure, and any adverse geotechnical conditions that may affect the particular impoundment. (C) Identify all springs, seepage, and groundwater flow observed or anticipated during wet periods in the area *of* the proposed impoundment. (D) Consider the possibility *of* mudflows, rock-debris falls, or other landslides into the impoundment or impounded material. (e) If the structure meets the Significant Hazard Class or High Hazard Class criteria for dams in TR-60 or [[Page 48919]] meets the criteria *of* Sec. 77.216(a) *of* this title, each plan under paragraphs (b), (c), and (d) *of* this section must include a stability analysis *of* the structure. The stability analysis must include, but not be limited to, strength parameters, pore pressures, and long-term seepage conditions. The plan also must contain a description *of* each engineering design assumption and calculation with a discussion *of* each alternative considered in selecting the specific design parameters and construction methods. 6. Add Sec. 780.28 to read as follows: Sec. 780.28 Activities in or adjacent to waters *of* the United States. (a) Applicability. This section applies to applications to conduct activities in waters *of* the United States or on the *surface* *of* lands within 100 feet *of* waters *of* the United States to the extent that those waters are regulated under the Clean Water Act, 33 U.S.C. 1311, 1362. (b) Mapping requirements. Maps prepared under Sec. Sec. 779.25, 780.14, or 780.21(b)(2) *of* this chapter must identify and delineate all-- (1) Waters *of* the United States within the proposed permit area. (2) Waters *of* the United States within the adjacent area, as that term is defined in Sec. 701.5 *of* this chapter. (3) Lands within the proposed permit area that lie within 100 feet, measured horizontally, *of* any waters *of* the United States. (c) Application requirements for variance from prohibition on disturbance. If you propose to conduct an activity that is subject to the prohibition *of* Sec. 816.57(a) *of* this chapter on the *surface* *of* any lands delineated under paragraph (b)(3) *of* this section, your application must describe any measures that you propose to implement in lieu *of* maintaining a 100-foot undisturbed buffer between *surface* *mining* activities and waters *of* the United States, including the extent *of* any lesser buffer that you propose to maintain between *surface* *mining* activities and waters *of* the United States, and explain how the proposed measures constitute the best technology currently available to-- (1) Prevent the contribution *of* additional suspended solids to streamflow or runoff outside the permit area to the extent possible; and (2) Minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible. (d) Approval requirements for variance from prohibition on disturbance. Before approving any measures proposed under paragraph (c) *of* this section, the regulatory authority must determine that those measures-- (1) Would be no less effective in meeting the requirements *of* the regulatory program than the prohibition in Sec. 816.57(a) *of* this chapter on disturbance *of* the *surface* *of* lands within 100 feet *of* waters *of* the United States; and (2) Constitute the best technology currently available to-- (i) Prevent the contribution *of* additional suspended solids to streamflow or runoff outside the permit area to the extent possible; and (ii) Minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible. (e) Requirements for activities not subject to prohibition on disturbance. For activities not subject to the prohibition in Sec. 816.57(a) *of* this chapter, if you propose to conduct any *surface* *mining* activities in waters *of* the United States or that would disturb the *surface* *of* lands within 100 feet *of* waters *of* the United States, your application must demonstrate, and the regulatory authority must find, that, to the extent possible, you will utilize the best technology currently available in accordance with Sec. Sec. 816.41(d) and 816.97(a) *of* this chapter, as required by Sec. Sec. 780.16(b) and 780.21(h) *of* this part. (f) Relationship to the Clean Water Act. (1) In all cases, your application must identify the authorizations and certifications that you anticipate 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 you have taken or will take to procure those authorizations and certifications. (2) The regulatory authority will process your application and may issue the permit before you obtain all necessary authorizations and certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., provided your application meets all applicable requirements *of* subchapter G *of* this chapter. However, you may not initiate any activities for which Clean Water Act authorization or certification is required until you obtain all necessary authorizations and certifications. 7. Revise Sec. 780.35 to read as follows: Sec. 780.35 Disposal *of* excess spoil. (a) If you, the permit applicant, propose to generate excess spoil as part *of* your operation, your application must include the following items-- (1) Demonstration *of* minimization *of* excess spoil. A demonstration, prepared to the satisfaction *of* the regulatory authority, that the operation has been designed to minimize, to the extent possible, the volume *of* excess spoil that the operation will generate, thus ensuring that spoil is returned to the mined-out area to the extent possible, taking into consideration applicable regulations concerning restoration *of* the approximate original contour, safety, stability, and environmental protection and the needs *of* the proposed postmining land use. (2) Capacity demonstration. A demonstration that the designed maximum cumulative volume *of* all proposed excess spoil fills within the permit area is no larger than the capacity needed to accommodate the anticipated cumulative volume *of* excess spoil that the operation will generate, as approved by the regulatory authority under paragraph (a)(1) *of* this section. (3) Analysis *of* alternatives and environmental impacts. (i) A description *of* all alternatives considered for disposal *of* the amount *of* excess spoil determined under paragraphs (a)(1) and (2) *of* this section and an analysis *of* the environmental impacts *of* those alternatives. You must consider impacts on both terrestrial and aquatic ecosystems. The alternatives must vary with respect to the number, size, location, and configuration *of* proposed fills to ensure consideration *of* a reasonable range *of* alternatives and potential environmental impacts. (ii) For every alternative under paragraph (a)(3)(i) *of* this section that would involve placement *of* excess spoil in waters *of* the United States, the analysis required under that paragraph must include an evaluation *of* the short-term and long-term impacts on the aquatic ecosystem, both individually and on a cumulative basis. In evaluating alternatives subject to this paragraph, you must consider impacts on the physical, chemical, and biological characteristics *of* downstream flows, including seasonal variations in temperature and volume, changes in stream turbidity or sedimentation, the degree to which the excess spoil may introduce or increase contaminants, the effects on aquatic organisms, and the extent to which wildlife is dependent upon those organisms. If you have prepared an analysis *of* alternatives under 40 CFR 230.10, you may initially submit a copy *of* that analysis with your application in lieu *of* the analysis *of* alternatives required by paragraph (a)(3)(i) *of* this section. The regulatory authority will determine the extent to which that analysis satisfies the analytical requirements *of* paragraph (a)(3)(i) *of* this section. [[Page 48920]] (iii) To the extent possible, you must select the alternative with the least overall adverse environmental impact, including adverse impacts on water quality and aquatic ecosystems. An alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology. This provision does not authorize selection *of* the least costly alternative at the expense *of* environmental protection solely on the basis *of* cost. If another alternative considered under paragraph (a)(3)(i) *of* this section would be more environmentally protective than the alternative you selected, you must demonstrate, to the satisfaction *of* the regulatory authority, that implementation *of* the more environmentally protective alternative is not possible. (4) Avoidance and minimization *of* adverse environmental impacts. A description *of* the steps that you will take to avoid the adverse environmental impacts that may result from the construction *of* fills or, if avoidance is not possible, the steps that you will take to minimize those impacts. (5) Location. Maps and cross-section drawings showing the location *of* all proposed disposal sites and structures. You must locate fills on the most moderately sloping and naturally stable areas available, unless the regulatory authority approves a different location based upon the alternatives analysis under paragraph (a)(3) *of* this section or other factors, taking into account other requirements *of* the Act and this chapter. When possible, you must place fills upon or above a natural terrace, bench, or berm if that location would provide additional stability and prevent mass movement. (6) Design plans. Detailed design plans for each structure, prepared in accordance with the requirements *of* this section and Sec. Sec. 816.71 through 816.74 *of* this chapter. You must design the fill and appurtenant structures using current prudent engineering practices and any additional design criteria established by the regulatory authority. (7) Geotechnical investigation. The results *of* a geotechnical investigation *of* each proposed disposal site, with the exception *of* those sites at which spoil will be placed only on a pre-existing bench under Sec. 816.74 *of* this chapter. You must conduct sufficient foundation investigations, as well as any necessary laboratory testing *of* foundation material, to determine the design requirements for foundation stability for each site. The analyses *of* foundation conditions must take into consideration the effect *of* underground mine workings, if any, upon the stability *of* the fill and appurtenant structures. The information submitted must include-- (i) The character *of* the bedrock and any adverse geologic conditions in the proposed disposal area. (ii) A survey identifying all springs, seepage, and groundwater flow observed or anticipated during wet periods in the area *of* the proposed disposal site. (iii) A survey *of* the potential effects *of* subsidence *of* subsurface strata as a result *of* past and future *mining* operations. (iv) A technical description *of* the rock materials to be utilized in the construction *of* disposal structures containing rock chimney cores or underlain by a rock drainage blanket. (v) A stability analysis including, but not limited to, strength parameters, pore pressures, and long-term seepage conditions. This analysis must be accompanied by a description *of* all engineering design assumptions and calculations and the alternatives considered in selecting the design specifications and methods. (8) Operation and reclamation plans. Plans for the construction, operation, maintenance, and reclamation *of* all excess spoil disposal structures in accordance with the requirements *of* Sec. Sec. 816.71 through 816.74 *of* this chapter. (9) Additional requirements for keyway cuts or rock-toe buttresses. If keyway cuts or rock-toe buttresses are required under Sec. 816.71(d) *of* this chapter, the number, location, and depth *of* borings or test pits, which must be determined according to the size *of* the spoil disposal structure and subsurface conditions. You also must provide the engineering specifications used to design the keyway cuts or rock-toe buttresses. Those specifications must be based upon the stability analysis required under paragraph (a)(7)(v) *of* this section. (b) Design certification. A qualified registered professional engineer experienced in the design *of* earth and rock fills must certify that the design *of* all fills and appurtenant structures meets the requirements *of* this section. PART 784--UNDERGROUND *MINING* PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN 8. The authority citation for part 784 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq. 9. Section 784.10 is revised to read as follows: Sec. 784.10 Information collection. In accordance with 44 U.S.C. 3501 et seq., the *Office* *of* Management and Budget (OMB) has approved the information collection requirements *of* this part and assigned clearance number 1029-0039. Collection *of* this information is required under section 516(d) *of* SMCRA, which in effect requires applicants for permits for underground coal mines to prepare and submit an operation and reclamation plan for coal *mining* activities as part *of* the application. The regulatory authority uses this information to determine whether the plan will achieve the reclamation and environmental protection requirements *of* the Act and regulatory program. Without this information, OSM and state regulatory authorities could not approve permit applications for underground coal mines and related facilities. Persons intending to conduct such operations must respond to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection *of* information unless it displays a currently valid OMB control number. 10. Amend Sec. 784.16 as follows: A. Revise the section heading, paragraph (a) introductory text, paragraph (a)(1) introductory text, and paragraph (a)(2); B. In paragraph (c)(2), remove the words ``the size or other criteria *of* the Mine Safety and Health Administration'' and add in their place the words ``the criteria in Sec. 77.216(a) *of* this title'', and remove the citation ``Sec. Sec. 77.216-1 and 77.216-2'' and add in its place ``Sec. 77.216-2''; C. Revise paragraph (d); D. Remove paragraph (e), redesignate paragraph (f) as paragraph (e), and revise paragraph (e). The revisions read as follows: Sec. 784.16 Reclamation plan: Siltation structures, impoundments, and refuse piles. (a) General. Each application must include a general plan and a detailed design plan for each proposed siltation structure, impoundment, and refuse pile within the proposed permit area. (1) Each general plan must-- * * * * * (2)(i) Impoundments meeting the criteria for Significant Hazard Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005), published by the U.S. Department *of* Agriculture, Natural Resources Conservation Service, must comply with the requirements *of* this section for structures that meet the [[Page 48921]] criteria in Sec. 77.216(a) *of* this title. Technical Release No. 60 (TR-60) is hereby incorporated by reference. The Director *of* the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may review and download the incorporated document from the Natural Resources Conservation Service's Web site at http://www.info.usda.gov/scripts/lpsiis.dll/TR/TR--210-- 60.htm . You may inspect a copy *of* this document as part *of* the docket that we, the *Office* *of* *Surface* *Mining* Reclamation and Enforcement, maintain at 1951 Constitution Avenue, NW., Washington, DC 20240. You also may inspect a copy *of* this document at the National Archives and Records Administration (NARA). For information on the availability *of* this material at NARA, call 202-741-6030 or go to http:// www.archives.gov/federal-register/cfr/ibr-locations.html . (ii) Each detailed design plan for a structure that meets the criteria in Sec. 77.216(a) *of* this title must-- (A) Be prepared by, or under the direction *of*, and certified by a qualified registered professional engineer with assistance from experts in related fields such as geology, land surveying, and landscape architecture; (B) Include any geotechnical investigation, design, and construction requirements for the structure; (C) Describe the operation and maintenance requirements for each structure; and (D) Describe the timetable and plans to remove each structure, if appropriate. * * * * * (d) Coal mine waste impoundments and refuse piles--(1) Analysis *of* alternatives and environmental impacts. (i) If you, the permit applicant, propose to generate or dispose *of* coal mine waste as part *of* your operation, you must-- (A) Identify a reasonable range *of* alternative disposal methods and alternative locations for any proposed refuse piles or coal mine waste impoundments. (B) Include an analysis *of* the viability and environmental impacts *of* each alternative identified. You must consider impacts on both terrestrial and aquatic ecosystems. (C) To the extent possible, select the alternative with the least overall adverse environmental impact, including adverse impacts on water quality and aquatic ecosystems. An alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology. This provision does not authorize selection *of* the least costly alternative at the expense *of* environmental protection solely on the basis *of* cost. If you propose to select an alternative other than the one that provides the most environmental protection, you must demonstrate, to the satisfaction *of* the regulatory authority, why implementation *of* the more environmentally protective alternative is not possible. (ii) For every alternative under paragraph (d)(1)(i)(A) *of* this section that would involve placement *of* coal mine waste in waters *of* the United States, the analysis required under paragraph (d)(1)(i)(B) *of* this section must include an evaluation *of* the short-term and long- term impacts on the aquatic ecosystem, both individually and on a cumulative basis. In evaluating alternatives subject to this paragraph, you must consider impacts on the physical, chemical, and biological characteristics *of* downstream flows, including seasonal variations in temperature and volume, changes in stream turbidity or sedimentation, the degree to which the coal mine waste may introduce or increase contaminants, the effects on aquatic organisms, and the extent to which wildlife is dependent upon those organisms. If you have prepared an analysis *of* alternatives for the proposed impoundment or refuse pile under 40 CFR 230.10, you may initially include a copy *of* that analysis in lieu *of* the analysis *of* alternatives required under paragraph (d)(1)(i)(B) *of* this section. The regulatory authority will determine the extent to which that analysis satisfies the requirements *of* paragraph (d)(1) *of* this section. (2) Avoidance and minimization *of* adverse environmental impacts. Describe the steps that you will take to avoid the adverse environmental impacts that may result from the construction *of* refuse piles or coal mine waste impoundments or, if avoidance is not possible, the steps that you will take to minimize those impacts. (3) Design requirements for refuse piles. Refuse piles must be designed to comply with the requirements *of* Sec. Sec. 817.81 and 817.83 *of* this chapter. (4) Design requirements for impoundments and impounding structures. (i) Impounding structures constructed *of* or intended to impound coal mine waste must be designed to comply with the requirements *of* Sec. Sec. 817.81 and 817.84 *of* this chapter. (ii) The plan for each structure that meets the criteria *of* Sec. 77.216(a) *of* this title must comply with the requirements *of* Sec. 77.216-2 *of* this title. (iii) Each plan for a coal mine waste impoundment must contain the results *of* a geotechnical investigation to determine the structural competence *of* the foundation that will support the proposed impounding structure and the impounded material. An engineer or engineering geologist must plan and supervise the geotechnical investigation. In planning the investigation, the engineer or geologist must-- (A) Determine the number, location, and depth *of* borings and test pits using current prudent engineering practice for the size *of* the impoundment and the impounding structure, the quantity *of* material to be impounded, and subsurface conditions. (B) Consider the character *of* the overburden and bedrock, the proposed abutment sites for the impounding structure, and any adverse geotechnical conditions that may affect the particular impoundment. (C) Identify all springs, seepage, and groundwater flow observed or anticipated during wet periods in the area *of* the proposed impoundment. (D) Consider the possibility *of* mudflows, rock-debris falls, or other landslides into the impoundment or impounded material. (e) If the structure meets the Significant Hazard Class or High Hazard Class criteria for dams in TR-60 or meets the criteria *of* Sec. 77.216(a) *of* this chapter, each plan under paragraphs (b), (c), and (d) *of* this section must include a stability analysis *of* the structure. The stability analysis must include, but not be limited to, strength parameters, pore pressures, and long-term seepage conditions. The plan also must contain a description *of* each engineering design assumption and calculation with a discussion *of* each alternative considered in selecting the specific design parameters and construction methods. 11. Revise Sec. 784.19 to read as follows: Sec. 784.19 Disposal *of* excess spoil. (a) If you, the permit applicant, propose to generate excess spoil as part *of* your operation, your application must include the following items-- (1) Demonstration *of* minimization *of* excess spoil. A demonstration, prepared to the satisfaction *of* the regulatory authority, that the operation has been designed to minimize, to the extent possible, the volume *of* excess spoil that the operation will generate, thus ensuring that spoil is returned to the mined-out area to the extent possible, taking into consideration applicable regulations concerning restoration *of* the approximate original contour, safety, stability, and environmental protection [[Page 48922]] and the needs *of* the proposed postmining land use. (2) Capacity demonstration. A demonstration that the designed maximum cumulative volume *of* all proposed excess spoil fills within the permit area is no larger than the capacity needed to accommodate the anticipated cumulative volume *of* excess spoil that the operation will generate, as approved by the regulatory authority under paragraph (a)(1) *of* this section. (3) Analysis *of* alternatives and environmental impacts. (i) A description *of* all alternatives considered for disposal *of* the amount *of* excess spoil determined under paragraphs (a)(1) and (2) *of* this section and an analysis *of* the environmental impacts *of* those alternatives. You must consider impacts on both the terrestrial and aquatic ecosystems. The alternatives must vary with respect to the number, size, location, and configuration *of* proposed fills to ensure consideration *of* a reasonable range *of* alternatives and potential environmental impacts. (ii) For every alternative under paragraph (a)(3)(i) *of* this section that would involve placement *of* excess spoil in waters *of* the United States, the analysis required under that paragraph must include an evaluation *of* the short-term and long-term impacts on the aquatic ecosystem, both individually and on a cumulative basis. In evaluating alternatives subject to this paragraph, you must consider impacts on the physical, chemical, and biological characteristics *of* downstream flows, including seasonal variations in temperature and volume, changes in stream turbidity or sedimentation, the degree to which the excess spoil may introduce or increase contaminants, the effects on aquatic organisms, and the extent to which wildlife is dependent upon those organisms. If you have prepared an analysis *of* alternatives under 40 CFR 230.10, you may initially submit a copy *of* that analysis with your application in lieu *of* the analysis *of* alternatives required by paragraph (a)(3)(i) *of* this section. The regulatory authority will determine the extent to which that analysis satisfies the analytical requirements *of* paragraph (a)(3)(i) *of* this section. (iii) To the extent possible, you must select the alternative with the least overall adverse environmental impact, including adverse impacts on water quality and aquatic ecosystems. An alternative is possible if it is capable *of* being done after consideration *of* cost, logistics, and available technology. This provision does not authorize selection *of* the least costly alternative at the expense *of* environmental protection solely on the basis *of* cost. If another alternative considered under paragraph (a)(3)(i) *of* this section would be more environmentally protective than the alternative you selected, you must demonstrate, to the satisfaction *of* the regulatory authority, that implementation *of* the more environmentally protective alternative is not possible. (4) Avoidance and minimization *of* adverse environmental impacts. A description *of* the steps that you will take to avoid the adverse environmental impacts that may result from the construction *of* fills or, if avoidance is not possible, the steps that you will take to minimize those impacts. (5) Location. Maps and cross-section drawings showing the location *of* all proposed disposal sites and structures. You must locate fills on the most moderately sloping and naturally stable areas available, unless the regulatory authority approves a different location based upon the alternatives analysis under paragraph (a)(3) *of* this section or other factors, taking into account other requirements *of* the Act and this chapter. When possible, you must place fills upon or above a natural terrace, bench, or berm if that location would provide additional stability and prevent mass movement. (6) Design plans. Detailed design plans for each structure, prepared in accordance with the requirements *of* this section and Sec. Sec. 817.71 through 817.74 *of* this chapter. You must design the fill and appurtenant structures using current prudent engineering practices and any additional design criteria established by the regulatory authority. (7) Geotechnical investigation. The results *of* a geotechnical investigation *of* each proposed disposal site, with the exception *of* those sites at which spoil will be placed only on a pre-existing bench under Sec. 817.74 *of* this chapter. You must conduct sufficient foundation investigations, as well as any necessary laboratory testing *of* foundation material, to determine the design requirements for foundation stability for each site. The analyses *of* foundation conditions must take into consideration the effect *of* underground mine workings, if any, upon the stability *of* the fill and appurtenant structures. The information submitted must include-- (i) The character *of* the bedrock and any adverse geologic conditions in the proposed disposal area. (ii) A survey identifying all springs, seepage, and groundwater flow observed or anticipated during wet periods in the area *of* the proposed disposal site. (iii) A survey *of* the potential effects *of* subsidence *of* subsurface strata as a result *of* past and future *mining* operations. (iv) A technical description *of* the rock materials to be utilized in the construction *of* disposal structures containing rock chimney cores or underlain by a rock drainage blanket. (v) A stability analysis including, but not limited to, strength parameters, pore pressures, and long-term seepage conditions. This analysis must be accompanied by a description *of* all engineering design assumptions and calculations and the alternatives considered in selecting the design specifications and methods. (8) Operation and reclamation plans. Plans for the construction, operation, maintenance, and reclamation *of* all excess spoil disposal structures in accordance with the requirements *of* Sec. Sec. 817.71 through 817.74 *of* this chapter. (9) Additional requirements for keyway cuts or rock-toe buttresses. If keyway cuts or rock-toe buttresses are required under Sec. 817.71(d) *of* this chapter, the number, location, and depth *of* borings or test pits, which must be determined according to the size *of* the spoil disposal structure and subsurface conditions. You also must provide the engineering specifications used to design the keyway cuts or rock-toe buttresses. Those specifications must be based upon the stability analysis required under paragraph (a)(7)(v) *of* this section. (b) Design certification. A qualified registered professional engineer experienced in the design *of* earth and rock fills must certify that the design *of* all fills and appurtenant structures meets the requirements *of* this section. 12. Amend Sec. 784.23 by removing ``817.71(b),'' in paragraph (c) and revising paragraph (b)(10) to read as follows: Sec. 784.23 Operation plan: Maps and plans. * * * * * (b) * * * (10) Locations *of* each siltation structure, permanent water impoundment, refuse pile, and coal mine waste impoundment for which plans are required by Sec. 784.16 *of* this part, and the location *of* each fill for the disposal *of* excess spoil for which plans are required under Sec. 784.19 *of* this part. * * * * * 13. Add Sec. 784.28 to read as follows: Sec. 784.28 Activities in or adjacent to waters *of* the United States. (a) Applicability. This section applies to applications to conduct activities in [[Page 48923]] waters *of* the United States or on the *surface* *of* lands within 100 feet *of* waters *of* the United States to the extent that those waters are regulated under the Clean Water Act, 33 U.S.C. 1311, 1362. (b) Mapping requirements. Maps prepared under Sec. Sec. 783.25, 784.14(b)(2), or 784.23 *of* this chapter must identify and delineate all-- (1) Waters *of* the United States within the proposed permit area. (2) Waters *of* the United States within the adjacent area, as that term is defined in Sec. 701.5 *of* this chapter. (3) Lands within the proposed permit area that lie within 100 feet, measured horizontally, *of* any waters *of* the United States. (c) Application requirements for variance from prohibition on disturbance. If you propose to conduct an activity that is subject to the prohibition *of* Sec. 817.57(a) *of* this chapter on the *surface* *of* any lands delineated under paragraph (b)(3) *of* this section, your application must describe any measures that you propose to implement in lieu *of* maintaining a 100-foot undisturbed buffer between *surface* activities and waters *of* the United States, including the extent *of* any lesser buffer that you propose to maintain between *surface* activities and waters *of* the United States, and explain how the proposed measures constitute the best technology currently available to-- (1) Prevent the contribution *of* additional suspended solids to streamflow or runoff outside the permit area to the extent possible; and (2) Minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible. (d) Approval requirements for variance from prohibition on disturbance. Before approving any measures proposed under paragraph (c) *of* this section, the regulatory authority must determine that those measures-- (1) Would be no less effective in meeting the requirements *of* the regulatory program than the prohibition in Sec. 817.57(a) *of* this chapter on disturbance *of* the *surface* *of* lands within 100 feet *of* waters *of* the United States; and (2) Constitute the best technology currently available to-- (i) Prevent the contribution *of* additional suspended solids to streamflow or runoff outside the permit area to the extent possible; and (ii) Minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible. (e) Requirements for activities not subject to prohibition on disturbance. For activities not subject to the prohibition in Sec. 817.57(a) *of* this chapter, if you propose to conduct any *surface* activities in waters *of* the United States or that would disturb the *surface* *of* lands within 100 feet *of* waters *of* the United States, your application must demonstrate, and the regulatory authority must find, that, to the extent possible, you will utilize the best technology currently available in accordance with Sec. Sec. 817.41(d) and 817.97(a) *of* this chapter, as required by Sec. Sec. 784.14(g) and 784.21(b) *of* this part. (f) Relationship to the Clean Water Act. (1) In all cases, your application must identify the authorizations and certifications that you anticipate 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 you have taken or will take to procure those authorizations and certifications. (2) The regulatory authority will process your application and may issue the permit before you obtain all necessary authorizations and certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., provided your application meets all applicable requirements *of* subchapter G *of* this chapter. However, you may not initiate any activities for which Clean Water Act authorization or certification is required until you obtain all necessary authorizations and certifications. PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--*SURFACE* *MINING* ACTIVITIES 14. The authority citation for part 816 is revised to read as follows: Authority: 30 U.S.C. 1201 et seq. 15. Section 816.10 is revised to read as follows: Sec. 816.10 Information collection. In accordance with 44 U.S.C. 3501 et seq., the *Office* *of* Management and Budget (OMB) has approved the information collection requirements *of* this part and assigned clearance number 1029-0047. Collection *of* this information is required under section 515 *of* SMCRA, which provides that permittees conducting *surface* coal *mining* and reclamation operations must meet all applicable performance standards *of* the regulatory program approved under the Act. The regulatory authority uses the information collected to ensure that *surface* *mining* activities are conducted in compliance with the requirements *of* the applicable regulatory program. Persons intending to conduct such operations must respond to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection *of* information unless it displays a currently valid OMB control number. 16. In Sec. 816.11, revise paragraph (e) to read as follows: Sec. 816.11 Signs and markers. * * * * * (e) Buffer markers. The boundaries *of* any buffer to be maintained between *surface* *mining* activities and waters *of* the United States in accordance with Sec. Sec. 780.28 and 816.57 *of* this chapter must be clearly marked to avoid disturbance by *surface* *mining* activities. * * * * * 17. In Sec. 816.43, revise paragraphs (a)(3), (b)(1), and (b)(4); and add paragraph (b)(5) to read as follows: Sec. 816.43 Diversions. (a) * * * (3) You, the permittee or operator, must-- (i) Promptly remove temporary diversions when no longer needed to achieve the purpose for which they were authorized. (ii) Restore the land disturbed by the removal process in accordance with this part. (iii) Before removing diversions, modify or remove downstream water-treatment facilities previously protected by the diversion as necessary to prevent overtopping or failure *of* the facilities. (iv) Maintain water-treatment facilities as otherwise required. * * * * * (b) * * * (1) The regulatory authority may approve the diversion *of* perennial or intermittent streams within the permit area if the diversion is located, designed, constructed, and maintained using the best technology currently available to minimize adverse impacts to fish, wildlife, and related environmental values to the extent possible. * * * * * (4) A permanent stream-channel diversion or a stream channel reclaimed after the removal *of* a temporary diversion must be designed and constructed using natural channel design techniques so as to restore or approximate the premining characteristics *of* the original stream channel, including the natural riparian vegetation and the natural hydrological characteristics *of* the original stream, to promote the recovery and enhancement *of* the aquatic habitat and to minimize [[Page 48924]] adverse alteration *of* stream channels on and off the site, including channel deepening or enlargement, to the extent possible. (5) A qualified registered professional engineer must certify the design and construction *of* all diversions *of* perennial and intermittent streams and all stream restorations as meeting the design and construction requirements *of* this section and any design criteria set by the regulatory authority. * * * * * Sec. 816.46 [Amended] 18. In Sec. 816.46, remove paragraph (b)(2) and redesignate paragraphs (b)(3) through (b)(6) as (b)(2) through (b)(5), respectively. 19. Revise Sec. 816.57 to read as follows: Sec. 816.57 Hydrologic balance: Activities in or adjacent to waters *of* the United States. (a) Prohibition. You, the permittee or operator, may not conduct *surface* *mining* activities that would disturb the *surface* *of* land within 100 feet, measured horizontally, *of* waters *of* the United States, unless-- (1) The permit authorizes you to do so under Sec. 780.28 *of* this chapter; or (2) The provisions *of* paragraph (b) *of* this section apply to those activities. (b) Exceptions. The prohibition in paragraph (a) *of* this section does not apply to the following *surface* *mining* activities-- (1) *Mining* through waters *of* the United States. You must comply with all other applicable requirements *of* the regulatory program, including the requirements *of* Sec. 816.43(b) *of* this part if the *mining* involves the permanent or temporary diversion *of* a perennial or intermittent stream. (2) Placement *of* bridge abutments, culverts, or other structures in or near waters *of* the United States to facilitate crossing *of* those waters. You must comply with all other applicable requirements *of* the regulatory program, including the requirements *of* Sec. Sec. 816.150, 816.151, and 816.181 *of* this part, as appropriate. (3) Construction *of* sedimentation pond embankments in waters *of* the United States. You must comply with all other applicable requirements *of* the regulatory program, including the requirements *of* Sec. 816.45(a) *of* this part. (4) Construction *of* excess spoil fills and coal mine waste disposal facilities in waters *of* the United States. You must comply with all other applicable requirements *of* the regulatory program, including the requirements *of* Sec. Sec. 816.71(a) and (f) *of* this part for excess spoil fills and the requirements *of* Sec. Sec. 816.81(a), 816.83(a), and 816.84 *of* this part for coal mine waste disposal facilities. (c) Additional clarifications. The activities listed in paragraph (b) *of* this section must comply with paragraphs (b)(10)(B)(i) and (b)(24) *of* section 515 *of* the Act and the regulations implementing those provisions *of* the Act, including-- (1) The requirement in Sec. 816.41(d)(1) *of* this part that *surface* *mining* activities be conducted according to the plan approved under Sec. 780.21(h) *of* this chapter and that earth materials, ground-water discharges, and runoff be handled in a manner that prevents, to the extent possible using the best technology currently available, additional contribution *of* suspended solids to streamflow outside the permit area; and otherwise prevents water pollution. (2) The requirement in Sec. 816.45(a) that appropriate sediment control measures be designed, constructed, and maintained using the best technology currently available to prevent, to the extent possible, additional contributions *of* sediment to streamflow or to runoff outside the permit area. (3) The requirement in Sec. 816.97(a) *of* this part that the operator must, to the extent possible using the best technology currently available, minimize disturbances and adverse impacts on fish and wildlife and related environmental values and achieve enhancement *of* those resources where practicable. (d) Clean Water Act requirements. You may not initiate any activities under paragraph (b) *of* this section until you obtain all necessary certifications and authorizations under sections 401, 402, and 404 *of* the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344. 20. In Sec. 816.71, revise paragraphs (a) through (d) to read as follows: Sec. 816.71 Disposal *of* excess spoil: General requirements. (a) General. You, the permittee or operator, must place excess spoil in designated disposal areas within the permit area in a controlled manner to-- (1) Minimize the adverse effects *of* leachate and *surface* water runoff from the fill on *surface* and ground waters; (2) Ensure mass stability and prevent mass movement during and after construction; (3) Ensure that the final fill is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use; and (4) Minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible, using the best technology currently available. (b) Static safety factor. The fill must be designed and constructed to attain a minimum long-term static safety factor *of* 1.5. The foundation and abutments *of* the fill must be stable under all conditions *of* construction. (c) Compliance with permit. You, the permittee or operator, must construct the fill in accordance with the design and plans submitted under Sec. 780.35 *of* this chapter and approved as part *of* the permit. (d) Special requirement for steep-slope conditions. When the slope in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope designated by the regulatory authority based on local conditions, you, the permittee or operator, must construct keyway cuts (excavations to stable bedrock) or rock-toe buttresses to ensure fill stability. * * * * * PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND *MINING* ACTIVITIES 21. The authority citation for part 817 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. 22. Section 817.10 is revised to read as follows: Sec. 817.10 Information collection. In accordance with 44 U.S.C. 3501 et seq., the *Office* *of* Management and Budget (OMB) has approved the information collection requirements *of* this part and assigned clearance number 1029-0047. Collection *of* this information is required under section 516 *of* SMCRA, which provides that permittees conducting underground coal *mining* operations must meet all applicable performance standards *of* the regulatory program approved under the Act. The regulatory authority uses the information collected to ensure that underground *mining* activities are conducted in compliance with the requirements *of* the applicable regulatory program. Persons intending to conduct such operations must respond to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection *of* information unless it displays a currently valid OMB control number. 23. In Sec. 817.11, revise paragraph (e) to read as follows: Sec. 817.11 Signs and markers. * * * * * (e) Buffer zone markers. The boundaries *of* any buffer to be [[Page 48925]] maintained between *surface* activities and waters *of* the United States in accordance with Sec. Sec. 784.28 and 817.57 *of* this chapter must be clearly marked to avoid disturbance by *surface* operations and facilities. * * * * * 24. In Sec. 817.43, revise paragraphs (a)(3), (b)(1), and (b)(4); and add paragraph (b)(5) to read as follows: Sec. 817.43 Diversions. (a) * * * (3) You, the permittee or operator, must-- (i) Promptly remove temporary diversions when no longer needed to achieve the purpose for which they were authorized. (ii) Restore the land disturbed by the removal process in accordance with this part. (iii) Before diversions are removed, modify or remove downstream water-treatment facilities previously protected by the diversion as necessary to prevent overtopping or failure *of* the facilities. (iv) Maintain water-treatment facilities as otherwise required. * * * * * (b) * * * (1) The regulatory authority may approve the diversion *of* perennial or intermittent streams within the permit area if the diversion is located, designed, constructed, and maintained using the best technology currently available to minimize adverse impacts to fish, wildlife, and related environmental values to the extent possible. * * * * * (4) A permanent stream-channel diversion or a stream channel reclaimed after the removal *of* a temporary diversion must be designed and constructed using natural channel design techniques so as to restore or approximate the premining characteristics *of* the original stream channel, including the natural riparian vegetation and the natural hydrological characteristics *of* the original stream, to promote the recovery and enhancement *of* the aquatic habitat and to minimize adverse alteration *of* stream channels on and off the site, including channel deepening or enlargement, to the extent possible. (5) A qualified registered professional engineer must certify the design and construction *of* all diversions *of* perennial and intermittent streams and all stream restorations as meeting the design and construction requirements *of* this section and any design criteria set by the regulatory authority. * * * * * Sec. 817.46 [Amended] 25. In Sec. 817.46, remove paragraph (b)(2) and redesignate paragraphs (b)(3) through (b)(7) as (b)(2) through (b)(6), respectively. 26. Revise Sec. 817.57 to read as follows: Sec. 817.57 Hydrologic balance: Activities in or adjacent to waters *of* the United States. (a) Prohibition. You, the permittee or operator, may not conduct *surface* activities that would disturb the *surface* *of* land within 100 feet, measured horizontally, *of* waters *of* the United States, unless-- (1) The permit authorizes you to do so under Sec. 784.28 *of* this chapter; or (2) The provisions *of* paragraph (b) *of* this section apply to those activities. (b) Exceptions. The prohibition in paragraph (a) *of* this section does not apply to the following *surface* activities-- (1) *Mining* through waters *of* the United States. You must comply with all other applicable requirements *of* the regulatory program, including the requirements *of* Sec. 817.43(b) *of* this part if the *mining* involves the permanent or temporary diversion *of* a perennial or intermittent stream. (2) Placement *of* bridge abutments, culverts, or other structures in or near waters *of* the United States to facilitate crossing *of* those waters. You must comply with all other applicable requirements *of* the regulatory program, including the requirements *of* Sec. Sec. 817.150, 817.151, and 817.181 *of* this part, as appropriate. (3) Construction *of* sedimentation pond embankments in waters *of* the United States. You must comply with all other applicable requirements *of* the regulatory program, including the requirements *of* Sec. 817.45(a) *of* this part. (4) Construction *of* excess spoil fills and coal mine waste disposal facilities in waters *of* the United States. You must comply with all other applicable requirements *of* the regulatory program, including the requirements *of* Sec. Sec. 817.71(a) and (f) *of* this part for excess spoil fills and the requirements *of* Sec. Sec. 817.81(a), 817.83(a), and 817.84 *of* this part for coal mine waste disposal facilities. (c) Additional clarifications. The activities listed in paragraph (b) *of* this section must comply with paragraphs (b)(9)(B) and (b)(11) *of* section 516 *of* the Act and the regulations implementing those provisions *of* the Act, including-- (1) The requirement in Sec. 817.41(d)(1) *of* this part that *surface* activities be conducted according to the plan approved under Sec. 784.14(g) *of* this chapter and that earth materials, ground-water discharges, and runoff be handled in a manner that prevents, to the extent possible using the best technology currently available, additional contribution *of* suspended solids to streamflow outside the permit area; and otherwise prevents water pollution. (2) The requirement in Sec. 817.45(a) that appropriate sediment control measures be designed, constructed, and maintained using the best technology currently available to prevent, to the extent possible, additional contributions *of* sediment to streamflow or to runoff outside the permit area. (3) The requirement in Sec. 817.97(a) *of* this part that the operator must, to the extent possible using the best technology currently available, minimize disturbances and adverse impacts on fish and wildlife and related environmental values and achieve enhancement *of* those resources where practicable. (d) Clean Water Act requirements. You may not initiate any activities under paragraph (b) *of* this section until you obtain all necessary certifications and authorizations under sections 401, 402, and 404 *of* the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344. 27. In Sec. 817.71, remove paragraph (k) and revise paragraphs (a) through (d) to read as follows: Sec. 817.71 Disposal *of* excess spoil: General requirements. (a) General. You, the permittee or operator, must place excess spoil in designated disposal areas within the permit area in a controlled manner to-- (1) Minimize the adverse effects *of* leachate and *surface* water runoff from the fill on *surface* and ground waters; (2) Ensure mass stability and prevent mass movement during and after construction; (3) Ensure that the final fill is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use; and (4) Minimize disturbances to and adverse impacts on fish, wildlife, and related environmental values to the extent possible, using the best technology currently available. (b) Static safety factor. The fill must be designed and constructed to attain a minimum long-term static safety factor *of* 1.5. The foundation and abutments *of* the fill must be stable under all conditions *of* construction. (c) Compliance with permit. You, the permittee or operator, must construct the fill in accordance with the design and plans submitted under Sec. 784.19 *of* this chapter and approved as part *of* the permit. [[Page 48926]] (d) Special requirement for steep-slope conditions. When the slope in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope designated by the regulatory authority based on local conditions, you, the permittee or operator, must construct keyway cuts (excavations to stable bedrock) or rock-toe buttresses to ensure fill stability. * * * * * [FR Doc. E7-16629 Filed 8-23-07; 8:45 am] BILLING CODE 4310-05-P