COALEX STATE INQUIRY REPORT - 83
June 4, 1987

Barry Bailey
Assistant to the Director
Mining and Minerals Division
New Mexico Energy and Minerals Department
525 Camino de los Marquez
Santa Fe, New Mexico 87501

TOPIC: SMALL DEPRESSIONS

INQUIRY: 30 CFR Sections 816.102 and 817.102 allow the construction of small depressions if
they are needed to retain moisture, minimize erosion, create and enhance wildlife or assist
revegetation. Please research the legislative history of SMCRA to determine how Congress
intended to define the term "small depressions".

SEARCH RESULT: See below.

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LEGISLATIVE HISTORY

   Section 515(b)(3) of SMCRA requires the operator to restore the mined area to approximate
original contour with all highwalls, spoil piles, and depressions eliminated unless "small
depressions are needed in order to retain moisture to assist revegetation or as otherwise
authorized pursuant to [the] Act." (30 CFR Sec. 1265(b)(3)) A search was conducted of the
legislative history file in the COALEX Library to determine whether Congress specified any
parameters regarding the definition of a "small depression".

   The provision allowing the retention of small depressions in certain circumstances was included
in every version of SMCRA proposed beginning in 1974. However, the legislative history provides
very little insight into the meaning of the phrase.

   The first discussions concerning the benefits of retaining small depressions occurred in the first
session of the 93rd Congress. In testimony on the problems of revegetating mined land in the
West, one commenter noted that, while most of the area being discussed was largely barren,
"where vegetation occurred, it occurred in the small depressions which caught rainfall and snow
melt." (Coal Surface Mining and Reclamation: Hearings Before the Subcommittee on Minerals,
Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 93rd Cong., 1st Sess.
83 (1973)) Thus, it appears that Congress was at least aware of the benefits of allowing an
operator to leave a depression of sufficient size to hold water.

   The first version of the small depression exception appeared in bills passed by both houses in
the second session of the 93rd Congress. The language used in these earlier bills was slightly
different than that found in the 1977 version, and read: "...and grade in order to restore the
approximate original contour of the land with all highwalls, spoil piles and depressions eliminated
(unless small depressions are needed in order to retain moisture to assist revegetation or as
otherwise authorized pursuant to paragraph (9) of this subsection)...." Paragraph (9) of the
passage dealt with permanent impoundments, and allowed them to be left if approved in the
mining plan and if certain requirements were met. (120 Cong. Rec. 24594 (1974)) Thus, it
appears that Congress intended to tie the size of the small depressions to its ability to retain
water; possibly the capacity of the depression and the amount of water it would retain was the
critical element; however, Congress made no attempt to specifically define the parameters of the
definition.

   By 1975, the language concerning small depressions was changed so that it was identical to the
version passed in 1977. No reason was given for this change, and Congress made no further
attempt to define what it meant by the phrase. Thus, the legislative history provides no real
insight into the factors which differentiate a "small depression" from an impoundment.


REGULATORY HISTORY

   As with the legislative history, the regulations promulgated by OSM provide very little insight
into the agency's interpretation of the phrase "small depressions". The original regulation dealing
with small depressions was found at 30 CFR Sec. 816.102(c), and read as follows:

"Small depressions may be constructed if they --
(1)   Are approved by the regulatory authority to minimize erosion, conserve soil moisture, or
     promote vegetation;
(2)  Do not restrict normal access; and
(3)  Are not inappropriate substitutes for lower grades on the reclaimed lands." 
(43 FR 41661, 41895 (1978))

     Thus, small depressions were required to meet the above three tests to be approved.
Note, however, that it appears from the language used in the regulation that whether or not
something was considered to be a "small depression" was left to the discretion of the regulatory
authority. This language was not explained in the preamble to the proposed regulations, and
apparently, OSM received no comments on this rule. Thus, the rule was implemented with no
discussion.

   In 1983, OSM revised the regulation pertaining to small depressions and moved it from Sec.
816.102(c ) to Sec. 816.102(h). In this instance, there was some limited discussion as to the
meaning and application of the rule. In response to a comment suggesting that the language
used in subsection (h) be added to subsection (a)(2) (the section essentially tracks the language
of the Act), OSM replied:

"The depressions which Section 151(b)(3) of the Act requires to be removed are those formed
during the mining operation before any backfilling and grading of the spoil has been
accomplished. They may be of any size and are not planned as part of the postmining land-use
plan. The small depressions allowed to remain by the Act and Sec. 816.102 are small depressions
used for specific purposes and formed during the reclamation operation." (48 FR 23355, 23358
(1983))

   Another commenter suggested that under Sec. 816.102(h), depressions could be used as a
method of requiring less backfilling in the final cut area of a mine. OSM disagreed, saying:

"The depression would undoubtedly collect water during some periods of the year. However, the
Act, in Section 151(b)(3), does not allow depressions to circumvent the AOC restoration
requirements. Also, the depressions described by the commenter should not qualify as small
depressions under Sec. 816.102(h). Depressions cannot substitute for fully backfilling the mining
pit. Congress intended that depressions that would collect and store water be barred from the
surface area unless permanent impoundments are approved." (Id. at 23363)

   This regulation, which has not been revised since 1983, now reads: "Small depressions may be
constructed if they are needed to retain moisture, minimize erosion, or assist revegetation." Note
that the language which apparently gave the regulatory authority the discretion to determine
what constituted a "small depression" was eliminated. Furthermore, the language quoted above,
in which OSM indicates Congressional intent regarding these depressions, was actually found in
the section of a Congressional report which dealt with impoundments. Thus, it is nearly impossible
to determine what Congress meant by the term "small depression", but one's conclusion can only
be that the definition was left to the discretion of the regulatory authority.


BOARD DECISIONS

   A search was conducted of the Administrative Law Judge and Interior Board of Land Appeals
files for administrative decisions pertaining to the definition of "small depressions". No applicable
cases were located.


ATTACHMENTS
A    Excerpt, Coal Surface Mining and Reclamation: Hearings Before the Subcommittee on
     Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs,
     93rd Cong., 1st Sess. 83 (1973).
B    120 Cong. Rec. 24594 (1974).
C    43 FR 41661 (1978).
D    48 FR 23355 (1983).


Search conducted by: S. Michele Manning