COALEX State Inquiry Report - 272
January, 1994

Maxine Weaver, Esquire
DEQ-AML
Herschler Building - 3rd West
122 West 25th Street
Cheyenne, Wyoming 82002

TOPIC: ALLUVIAL VALLEY FLOORS (AVF): DEFINITION OF "NOT SIGNIFICANT TO FARMING" OR
"NEGLIGIBLE IMPACT ON FARM'S AGRICULTURAL PRODUCTION"

INQUIRY: Has OSM defined the above terms that appear in SMCRA sec. 510(b)(5)(A)? Has OSM
defined the size of "small acreage" or applied a percentage to either of the above terms? Has OSM
made any AVF determinations? If so, based on what criteria? Wyoming's guidelines define
significant as anything over 10% and anything less than 5% as negligible. Please locate any
relevant information that discusses these questions. [30 CFR Sections 701.5 and 785.19, and Part
822]

SEARCH RESULTS: The COALEX Library and other materials available in LEXIS were used to
conduct this research. Discussions of the terms in question appear in the preambles to proposed
and final federal regulations and in decisions ruling on challenges to those regulations. The
regulatory history of the relevant sections is provided below. Copies of these materials are
attached. Also included are federal cases ruling on SMCRA's AVF prohibition as a taking; Interior
administrative decisions ruling on the importance of making an AVF determination prior to permit
issuance; and several other background documents.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

BACKGROUND INFORMATION
SMCRA 510(b)(5) & 701

45 FR 78637 (NOVEMBER 26, 1980). Conditional approval of the permanent program submission
from the State of Wyoming. 
   The excerpt included discusses the state's Alluvial Valley Floor Guidelines.


43 FR 38035 (AUGUST 25, 1978). Alluvial Valley Floors Technical Guidelines. 
   OSM "is today publishing proposed guidance to assist both State regulatory authorities and OSM
in the interpretation and application of section 515(b)(10) and 510(b)(5) of the act and 30 CFR
715.17(j) (42 FR 62687, December 13, 1977) to pending permit applications and mining and
reclamation plans for surface coal mining operations which may be subject to those sections of the
act and regulations. This guidance is proposed in order to promote uniformity of interpretation and
application of the act and regulations relating to alluvial valley floors among regulatory authorities
who share responsibility under the act, and to give fair notice to operators of the information which
may be requested by regulatory authorities when a surface coal mining operation will or may
affect the essential hydrologic functions, uses, or productivity or alluvial valley floors."


DECISIONS - FEDERAL
WHITNEY BENEFITS, INC. AND PETER KIEWIT SONS' CO. v U.S., 926 F 2d 1169 (Fed Cir 1991).
WHITNEY BENEFITS, INC. AND PETER KIEWIT SONS' CO. v U.S., 18 Cl Ct 394 (Cl Ct 1989).
WHITNEY BENEFITS, INC. AND PETER KIEWIT SONS' CO. v U.S., 752 F 2d 1554 (Fed Cir 1985).
   SMCRA's AVF prohibition effected a taking of the Whitney coal property, the "evidence having
shown the total destruction of all economically viable use".


DECISIONS - INTERIOR ADMINISTRATIVE
NATURAL RESOURCES DEFENSE COUNCIL, INC. et al. v OSM; ATLANTIC RICHFIELD CO., & STATE
OF COLORADO, INTERVENORS, 89 IBLA 1, IBLA 83-757 (September 27, 1985) [Amended by
November 18, 1986 Decision]. NATURAL RESOURCES DEFENSE COUNCIL, INC. et al. v OSM;
ATLANTIC RICHFIELD CO., & STATE OF COLORADO, INTERVENORS, 94 IBLA 269, IBLA 83-757
(November 18, 1986).
   In the first decision the Board ruled "OSM failed to make its alluvial valley floor determination
prior to permit issuance and stipulations #3 and #5 were added to the permit to elicit information
required before permit approval".

"In our earlier decision we stated that OSM's failure to require the applicant to satisfy 30 CFR
785.19(d) (1981) before issuing the permit, by allowing the applicant to submit the necessary
information or establish that it was not required to do so was error. NRDC v. OSM, 89 IBLA at 57,
91 I.D. at 416. The Board found that issuance of the permit had deprived the applicant of the
opportunity to comply with the regulation and that OSM's stipulation Nos. 3 and 5 were apparently
included to satisfy the regulation."  


REGULATORY HISTORY
42 FR 62639 (DECEMBER 13, 1977). Initial program regulations. 715.17 Protection of the
hydrologic system. 715.17(j) Alluvial valley floors west of the 100th meridian west longitude.
"The potentially adverse effects of mining in or adjacent to alluvial valley floors may all too readily
affect offsite areas as well as the degree to which mining is or is not allowed in the vicinity of
alluvial valley floors and as to the environmental protection standards that must apply."

"[W]hile the Department fees it has adequately provided the necessary regulatory basis for
national determinations of alluvial valley floors, States and regulatory authorities are encouraged
to refine the performance standards to meet regional and local situations. If, for example, it is
necessary to more accurately identify the role of alluvial valley floors in the agricultural economy of
a region, the appropriate regulatory agency may develop such a requirement, perhaps through
amendment of existing statutes or regulations or exercise of existing authorities."


43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. 
a. 785.19 Alluvial valley floors.
"The applicant would be required to conduct a pre-application reconnaissance inspection [and
provide detailed technical information] in these areas holding a stream or within two miles of a
stream, to determine the absence or likely presence of an alluvial valley floor in the vicinity of a
proposed mine plan area."

"[T]he regulatory authority would be required to make specific findings before determining that
any portion of an alluvial valley floor or stream subject to the pre-application requirements may be
excluded from further consideration in the full permit application process.... It is expected that the
regulatory authority would make these findings prior to receipt of a complete application for a
permit for the area involved."
  
 b. 786.17 Criteria for permit approval or denial: Alluvial valley floors.
"Subsection 786.17(c) is being proposed to provide specific guidelines for the use of the regulatory
authority in determining the extent of acceptable impact of proposed surface coal mining and
reclamation operations on farming in alluvial valley floor situations. As proposed, OSM would
establish as a measure of significant impact on farming, a value of 10 percent of decrease in a
farm's production capacity for harvestable crops, a 10 percent decrease of the farm's water supply
or a combination of these factors which would result in a 10 percent decrease in typical annual
productivity."

c. Part 822 Special permanent program performance standards - operations in alluvial valley floors.
See attached material.


44 FR 14902 (MARCH 13, 1979). Permanent program final preamble -Final rule.
a. 701.5 Definitions. Alluvial valley floors.
 See attached material.

b. 785.19 Alluvial valley floors.
(A)...Proposed sections 785.19 and 786.17 "have been combined in order to clearly indicate to an
applicant, at the time the preapplication investigations are conducted, the criteria for permit
approval or denial."

(B)(7)..."[T]he designation of an area as an alluvial valley floor does not preclude mining as a
matter of law. Mining will only be prohibited where there is an alluvial valley floor and (1) where
mining will interfere with or preclude farming; (2) where mining will materially damage the water
supply to an alluvial valley floor; or (3) where the essential hydrologic functions cannot be restored
after mining."

(A) Subsection 785.19(e) Criteria...."(2) Some commenters have made recommendations relating
to the proposed language of Section 786.17(c) (now 785.19(c)(2)) as that subparagraph described
the phrase 'significance...on farming.' The Office has determined that the test of significance
would be applied to all alluvial valley floors, regardless of whether they are currently undeveloped
rangelands or not. ...

"An option of reiterating the two potential exclusions of Section 510(b)(5)(A) (e.g. (1) undeveloped
rangelands which are not significant to farming on said alluvial valley floors and (2) areas of such
small acreage as to be of negligible impact on the farm's agricultural production), was felt to be
unduly complex particularly if a viable alternative could be identified. The alternative was to use
the term 'significance to (or on farming' to represent both exclusions, that is, the undeveloped
rangeland and the small acreage exclusions. The Office, therefore, interprets the small acreage
determination to be a determination of significance to a farm's agricultural production.

"(3) Commenters asked that significance be related, variously, to one farm to a particular crop, to
the nation, or to another base. The comparison to determine significance must be site-specific as is
evidence by legislative history...and as discussed in the preamble to Section  785.19(c). The Office
modified the measure of significance, so that it can be judged on whether removal of the area
from production would decrease expected annual income from agricultural activities normally
conducted at the farm. Many comments related to the proposal to use a value of 10 percent, or
more stringent criteria established by the regulatory authority, to define the area of a farm that
would, if affected, be 'significant' in terms of being included under Section 510(b)(5)(A) of the
Act....
  ...
"The Office has determined that a value if 10 percent is inadequately established to be used at this
time; and, therefore, has deleted the proposed language in the final regulation, as far as it
specified a value of 10 percent. In accord with many comments received, the measure of
significance has been changed to that of total value derived from agricultural activities rather that
acreage. The comparison of vegetation yield of the alluvial valley floor would be made to total yield
of the affected farm. It is felt that the exemption of Section 510(b)(5)(A) is more equitable handled
with an assessment of yield rather than area, because the area does not necessarily reflect the
value of the area to the farm, while the yield should be a direct measure of this value. The Office
will apply this indicator in a quantitative basis in each case.

"The Office has substituted, in place of the 10 percent criterion, a criterion that related significantly
to a decrease in the expected annual income.

"This concept should satisfy the concern of commenters who expressed a desire to have the
alluvial valley floor regulations incorporate additional economic indicators. It relates the
significance to 'expected' income, which is in part a measure of historical production. In that
manner, it also relates significance to agricultural activities conducted on the farm as a whole, and,
thus, satisfies the desire to make the evaluation relate to the value of various crops. The Office
believes this approach to closely reflect the intent of Congress that mining will not be allowed if it
interferes with a farming operation." 
 
c. Part 822 Operations in Alluvial Valley Floors
See attached material.


IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 14 ERC(BNA) 1083 (D DC
February 26, 1980).
"Section 510(b)(5) of the Act, 30 U.S.C. sec. 1260(b)(5), enumerates two exclusions from the
criteria for approval of mining operations on alluvial valley floors. The first allows mining when the
regulatory authority finds that mining activities will interrupt 'such small acreage as to be of
negligible impact on the farm's agricultural production.' The Secretary's test for the small acreage
exemption is elucidated at 30 C.F.R. sec. 785.19(e)(2), 44 FR 153 76 (1979):

The effect of the proposed operations on farming will be concluded to be significant if they would
remove from production, over the life of the mine, a proportion of the farm's production that would
decrease the expected annual income from agricultural activities normally conducted at the farm.  

The NCA alleges the regulatory provision emasculates the statutory exception; it effectively
converts a small acreage exemption into a total ban of mining activities.

"The court agrees with the NCA, and will order the remand of 30 C.F.R. sec. 785.19(e)(2). The
clear language of the Act directs permit approval if the mining will interrupt only a small number of
acres. Such mining activity would create a negligible impact on a farm's productive capacity. But
the Secretary's definition would prohibit mining in this situation. Interference with a small number
of acres may nonetheless result in a decrease of the farm's income. The Act intended the
regulatory authority to grant a permit in this situation. Recognizing that the Act affords the
Secretary discretion to define the exemption, but mindful that the Secretary cannot stray from the
intent of the Act, we remand 30 C.F.R. sec. 785.19(3). The court directs the Secretary to revise the
regulation to allow mining on an AVF that results in a negligible impact on the farm's production."


45 FR 51547 (AUGUST 4, 1980). Notice of suspension and statement of policy regarding effect on
State programs.
"30 CFR 785.19(e)(1)(ii). The regulation was remanded by the court to allow the Secretary to add
exclusions for undeveloped rangelands and negligible farmland interruption. Pending further
rulemaking, the Secretary will interpret this regulation in accordance with the court decision."

"30 CFR 785.19(e)(2). The small acreage exemption test for mining on alluvial valley floors is
suspended. The regulation was remanded to allow the Secretary to revise it to allow mining on an
alluvial valley floor that results in a negligible impact on a farm's production."


47 FR 25486 (JUNE 11, 1982). Proposed rule.
See attached rule.


48 FR 29802 (JUNE 28, 1983). Final rule.
a. 701.5 Definitions. Alluvial valley floors.
The definition which mirrors the statute was retained. "The key to the definition is the relationship
between the hydrology of the area and agricultural activities."

b. 785.19(a) Alluvial valley floor determinations.
Permit applicants may request the regulatory authority "make a determination whether, in an arid
and semiarid area, valley floors in the proposed permit area or adjacent are alluvial valley floors. It
also requires sufficient data be submitted by the applicant to make this determination and allows
the regulatory authority to request additional information from the applicant."

"Unnecessary detailed technical information and study requirements" are deleted, allowing the
regulatory authority "to adjust the type of information and level of analysis to better reflect site-specific conditions."

c. 785.19(b) Application of statutory exclusions.
"Under the final rule, negligible impact of the proposed surface coal mining and reclamation
operation on farming will be based on the relative importance of the affected vegetation and water
of the developed grazed or hayed AVG to the farm's production. "
...
"Under these final rules, it is necessary to determine the 'significance to farming' only with regard
to the statutory exclusions for undeveloped rangeland. The applicability in section 785.19(b)(2)(ii)
of the second statutory exclusion is dependent upon the finding that small acreage affected will
cause negligible impact on a farm's agricultural production. Also, the finding in final section
785.19(e)(2)(i) relates to whether the proposed surface coal mining operation will interrupt,
discontinue or preclude farming."


50 FR 7274 (FEBRUARY 21, 1985). Notice of suspension.
"This notice of suspension addresses those regulations remanded by the October 1, 1984
Memorandum Opinion in Round II of In Re: Permanent (II)."

701.5 Definition of "agricultural activities or farming" as related to alluvial valley floors
"The Court remanded the definition in section 701.5 which treats the terms 'agricultural activities'
and 'farming' as synonymous because it believed the use of different terms might indicate a
congressional intent to prescribe different meanings to those terms."


NATIONAL WILDLIFE FEDERATION V HODEL, 839 F 2d 694 (DC Cir January 29, 1988).
III.C.1. Alluvial Valley Floors. The Court of Appeals upheld the district court's ruling that "the
Secretary had abandoned the detailed specification of standards approach "without adequate
explanation," and therefore 'remand[ed] this issue to the Secretary for further consideration.'"

"Prior to 1983, sec. 785.19(d) of the regulations contained detailed specifications of the information
needed in a permit application when the proposed operation might affect an alluvial valley floor or
waters supplied to an alluvial valley floor. In 1983, the Secretary withdrew the enumeration of
'technical data, information, and analysis' that formerly had to be presented and evaluated in a
permit application, and instead' require[d] generally that sufficient information be submitted to
enable the regulatory authority to make the necessary determinations."


53 FR 29310 (AUGUST 3, 1988). Proposed rule.
See attached material.


54 FR 9724 (MARCH 7, 1989). Final rule.
See attached material.


NATIONAL WILDLIFE FEDERATION v LUJAN, 31 ERC (BNA) 2069 (D DC September 5, 1990).
II. Definition of Farming on Alluvial Valley Floors. 


Also enclosed to complete the regulatory history are these Notices:
 
45 FR 54752 (AUGUST 18, 1980). Final rule. Expiration dates
incorporated by reference. 

45 FR 8240 (FEBRUARY 6, 1980). Final rule. Expiration dates
incorporated by reference. 

47 FR 33683 (AUGUST 4, 1982). Final rule. Sections 785.10 Information collection and 822.10
Information collection were added.


ATTACHMENTS
1.   SMCRA 510(b)(5) & 701
2.   45 FR 78637 (NOVEMBER 26, 1980). Conditional approval of the permanent program
     submission from the State of Wyoming. 
3.   43 FR 38035 (AUGUST 25, 1978). Alluvial Valley Floors Technical Guidelines. 
4.   WHITNEY BENEFITS, INC. AND PETER KIEWIT SONS' CO. v U.S., 926 F 2d 1169 (Fed Cir
     1991).
5.   WHITNEY BENEFITS, INC. AND PETER KIEWIT SONS' CO. v U.S., 18 Cl Ct 394 (Cl Ct 1989). 
6.   WHITNEY BENEFITS, INC. AND PETER KIEWIT SONS' CO. v U.S., 752 F 2d 1554 (Fed Cir
     1985).
7.   NATURAL RESOURCES DEFENSE COUNCIL, INC. et al. v OSM; ATLANTIC RICHFIELD CO., &
     STATE OF COLORADO, INTERVENORS, 89 IBLA 1, IBLA 83-757 (September 27, 1985)
     [Amended by November 18, 1986 Decision]. 
8.   NATURAL RESOURCES DEFENSE COUNCIL, INC. et al. v OSM; ATLANTIC RICHFIELD CO., &
     STATE OF COLORADO, INTERVENORS, 94 IBLA 269, IBLA 83-757 (November 18, 1986).
9.   42 FR 62639 (DECEMBER 13, 1977). Initial program regulations. 715.17 Protection of the
     hydrologic system. 715.17(j) Alluvial valley floors west of the 100th meridian west
     longitude.
10.  43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. 
     a. 785.19 Alluvial valley floors.
     b. 786.17 Criteria for permit approval or denial: Alluvial       valley floors.
     c. Part 822 Special permanent program performance standards -     operations in alluvial
     valley floors.
11.  44 FR 14902 (MARCH 13, 1979). Permanent program final preamble -Final rule.
     a. 701.5 Definitions. Alluvial valley floors.
     b. 785.19 Alluvial valley floors.
     c. Part 822 Operations in Alluvial Valley Floors
12.  IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 14 ERC(BNA) 1083 (D DC
     February 26, 1980).
13.  45 FR 51547 (AUGUST 4, 1980). Notice of suspension and statement of policy regarding
     effect on State programs.
14.  47 FR 25486 (JUNE 11, 1982). Proposed rule.
15.  48 FR 29802 (JUNE 28, 1983). Final rule.
     a. 701.5 Definitions. Alluvial valley floors.
     b. 785.19(a) Alluvial valley floor determinations.
     c. 785.19(b) Application of statutory exclusions.
16.  50 FR 7274 (FEBRUARY 21, 1985). Notice of suspension. 701.5 Definition of "agricultural
     activities or farming" as related to alluvial valley floors.
17.  NATIONAL WILDLIFE FEDERATION v HODEL, 839 F 2d 694 (DC Cir January 29, 1988).
     III.C.1. Alluvial Valley Floors. 
18.  53 FR 29310 (AUGUST 3, 1988). Proposed rule.
19.  54 FR 9724 (MARCH 7, 1989). Final rule.
20.  NATIONAL WILDLIFE FEDERATION v LUJAN, 31 ERC (BNA) 2069 (D DC September 5,
     1990). II. Definition of Farming on Alluvial Valley Floors. 
21.  45 FR 54752 (AUGUST 18, 1980). Final rule. Expiration dates
     incorporated by reference. 
22.  45 FR 8240 (FEBRUARY 6, 1980). Final rule. Expiration dates
     incorporated by reference. 
23.  47 FR 33683 (AUGUST 4, 1982). Final rule. Sections 785.10 Information collection and
     822.10 Information collection were added.


Research conducted by: Joyce Zweben Scall