COALEX REPORT 53

	Coalex Report 53

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   

COALEX STATE INQUIRY REPORT - 53
August 14, 1985

Andrew Cammack, Legislative Analyst
Legislative Research Commission
State Capital Building
Frankfort,  Kentucky 40601

TOPIC:  REVEGETATION REQUIREMENTS

INQUIRY:  Are there any guidelines in the legislative history or regulations that specify when tree
cover or fish and wildlife enhancement may be required for the revegetation cover of mined
areas?  Do any other states contain an effective mechanism that encourages forestry or wildlife
enhancement either: (1) on land that was originally forested or (2) on land that did not have
forest originally.   In particular, an investigation of the following state programs would be helpful:  
Virginia, West Virginia, Ohio, and Indiana.

SEARCH RESULTS:  If the pre-mining land use was forest or wildlife habitat, the mechanism by
which the regulatory authority can require reforestation appears straightforward.  The
revegetation standard applied under the Act is based on the approved post-mining land use
which in turn is a function of the pre-mining use of the disturbed land.  SMCRA Sec. 515(b)(2)
requires that the permittee "restore the land     affected to a condition capable of supporting the
uses which it was capable of supporting prior to any mining, or higher or better uses of which
there is reasonable likelihood".  (See SMCRA Sec. 515(b)(19), 30 CFR Sec. 816.133.)

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

   OSM's 1979 regulations included specific revegetation success standards for tree and shrub
stocking of forest lands. (See 44 FR 15414, MARCH 13, 1979.) These regulations were removed
from the federal code in September, 1983 to provide additional flexibility to the states in
establishing revegetation requirements applicable to the particular state's climate, soils, and other
local conditions. (48 FR 40160 (SEPTEMBER 2, 1983),  30 CFR Sec. 816.116)  The preamble to
the final rule implies that a state could elect to continue to prescribe standards for tree or shrub
planting on forest or wildlife lands.

   The regulations are unclear on the question of whether the regulatory authority can prohibit an
operator from changing the land use if the pre-mining land use was forestry or wildlife habitat. 
The Act and regulations include provisions for instances where the proposed post-mining land use
may differ from the pre-mining land use -- such as reclaiming land for agricultural, commercial
forestry, or recreational use. (SMCRA Sec. 515(c)(3) and 30 CFR Sec. 816.133(c))

   The regulations imply that the regulatory authority may disapprove such a change even if the
criteria are met.  Thus, Sec. 816.133 of the regulations specifies that "higher or better uses may
be approved by the regulatory authority".  Not that they must be approved.  No legislative history
or case law was identified on the issue of whether such approval is discretionary.

   A search of COALEX was conducted to identify legislative intent where the regulatory authority
could require the coal mining operation to establish a forestry or wildlife post-mining use when
the pre-mining use was not forestry or wildlife habitat.  None was identified.  Although a provision
was included to allow, for example, commercial forestry as a new post-mining use, it appears to
be the prerogative of the permittee to propose the alternative.

   A search of the state regulatory programs also failed to identify any provisions in state
programs requiring an operator to adopt a post-mining use plan for the mined area different than
that established as its pre-mining use.

   A final consideration is the requirements of Sec. 515(b)(24) of SMCRA and 30 CFR Sec. 816.97
which require preservation and enhancement of fish and wildlife resources.  Arguably this section
would give the regulatory authority some latitude with respect to requirements for restoration of
wildlife habitat or enhancement of areas to wildlife habitat.    No legislative history or other
indication in the COALEX file was found, however, clearly indicating that this section was
intended to allow the regulatory authority to require an operator to create a wildlife habitat if one
did not previously exist in the area.


ATTACHMENTS
A    44 FR 15414 (1979).
B    48 FR 40160 (1983).


Search conducted by: Terri Petruska

(Home Page)

Office of Surface Mining
1951 Constitution Ave. N.W.
Washington, D.C. 20240
202-208-2719
getinfo@osmre.gov