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What does the Infrastructure Investment and Jobs Act mean for OSMRE's AML Program?

The Infrastructure Investment and Jobs Act

Public Law 117-58: The Infrastructure Investment and Jobs Act, also known as “The Bipartisan Infrastructure Law (the Law),” was enacted on November 15, 2021. This enacted legislation included language that directly, or in some cases indirectly, impacts OSMRE. In addition to the extension of abandoned mine land (AML) fee collections and mandatory AML Grant distributions, $11.293 billion in new funding was authorized to be appropriated for deposit into the Abandoned Mine Reclamation Fund.

President Biden signs the Infrastructure Investment and Jobs Act as he is surrounded by lawmakers and members of his Cabinet during a ceremony on the South Lawn at the White House
President Biden signs the Infrastructure Investment and Jobs Act as he is surrounded by lawmakers and members of his Cabinet during a ceremony on the South Lawn at the White House (November 2021)

Final Guidance for Implementation of the STREAM Act’s Long Term AML Reclamation Fund Available

The Consolidated Appropriations Act, 2023, included an amendment to section 40701 of the Bipartisan Infrastructure Law that authorized eligible States and Tribes to deposit up to 30 percent of their annual BIL abandoned mine land grant amount in a long-term AML reclamation fund established under State or Tribal law. This amendment is commonly referred to as the STREAM Act.

 

How to Apply for AML Grants under the Law

Biden-Harris Administration Releases Final Guidance for Bipartisan Infrastructure Law Abandoned Mine Land Grant Program.

Fiscal Year 2023 & 2024 ATP Status

As of September 30th in Fiscal Year 2023, a total of 370 ATPs have been approved across all AML Reclamation programs. As of January 31st in Fiscal Year 2024, a total of 124 ATPs have been approved across all AML Reclamation programs. 

This bar graphs displays the number of Authorizations To Proceed (ATPs) approved by programs for FY23. The X axis displays the three programs, BIL-AML, AML Fee-Based and AMLER, along with two mixed programs, AML Fee-Based & BIL-AML and AMLER & BIL-AML. The Y axis displays the number of approved ATPs: 85 BIL-AML, 261 AML Fee-Based, 20 AMLER, 3 AML Fee-Based & BIL-AML, and 1 AMLER & BIL-AML for a total of 370.
This bar graphs displays the number of Authorizations To Proceed (ATPs) approved by programs for FY23. The X axis displays the three programs, BIL-AML, AML Fee-Based and AMLER, along with two mixed programs, AML Fee-Based & BIL-AML and AMLER & BIL-AML. The Y axis displays the number of approved ATPs: 85 BIL-AML, 261 AML Fee-Based, 20 AMLER, 3 AML Fee-Based & BIL-AML, and 1 AMLER & BIL-AML for a total of 370.
This bar graphs displays the number of Authorizations To Proceed (ATPs) approved by programs for FY24. The X axis displays the three programs, BIL-AML, AML Fee-Based and AMLER, along with two mixed programs, AML Fee-Based & BIL-AML and AMLER & BIL-AML. The Y axis displays the number of approved ATPs: 60 BIL-AML,  59 AML Fee-based, 5 AMLER, 0 AML Fee-Based & BIL-AML, and 0 AMLER & BIL-AML for a total of 124.
This bar graphs displays the number of Authorizations To Proceed (ATPs) approved by programs for FY24. The X axis displays the three programs, BIL-AML, AML Fee-Based and AMLER, along with two mixed programs, AML Fee-Based & BIL-AML and AMLER & BIL-AML. The Y axis displays the number of approved ATPs: 60 BIL-AML,  59 AML Fee-based, 5 AMLER, 0 AML Fee-Based & BIL-AML, and 0 AMLER & BIL-AML for a total of 124.

Learn more about Authorizations To Proceed

 

Provisions under the Law that impact the AML Program

With the passage of the Law, OSMRE takes on a new opportunity to invest in our infrastructure and benefit the American public for the next generation. 

This key investment will improve federal stewardship of our critical infrastructure and significantly increase OSMRE efforts to support our partners, stakeholders, Tribal nations, and communities. Most notably, this federal law expands investment in the Abandoned Mine Land (AML) program. Implementing this law and delivering meaningful results is a top priority for OSMRE.
 

 

AML Program changes include extending AML Fee Collection through Fiscal Year 2034, reducing the AML Fee Rate by twenty percent (New rates will be: Surface Mining 22.4¢ per ton, Underground - 9.6¢ per ton, and Lignite - 6.4¢ per ton), and extending AML Mandatory Distribution through 2035.

 

In addition to the changes to the existing AML Program, the law authorizes $11.293 billion to be deposited into the Abandoned Mine Land Fund to be distributed as follows:

  • Infrastructure Law AML Reclamation Grants to Eligible states and Tribes
    • OSMRE will distribute amounts made available in the appropriation to eligible states and Tribes on an equal annual basis over a 15-year period in accordance with the provisions of the the infrastructure law.
  • Up to 3% for OSMRE Operations
    • Up to 3 percent of the amount appropriated in the law may be used for OSMRE's administration of the program.
  • 0.5% for Office of Inspector General Operations
    • One-half of one percent of amounts made available in the law must be transferred to the Office of the Inspector General of the Department of the Interior for oversight of funding
  • $25 million for Financial and Technical Assistance
    • States and Tribes will be provided with the financial and technical assistance necessary for the purpose of making amendments to the Abandoned Mine Land Inventory System (e-AMLIS).

The distribution announced on February 7, 2022, is the first of 15 annual installments under the BIL that will provide approximately $10.87 billion (after BIL directed reductions) for AML reclamation projects, in addition to funds available under AML-fee based grants.

As directed by the BIL, the distribution amounts were based on the number of tons of coal historically produced in each State or from the applicable Indian lands before August 3, 1977. OSMRE relied on the March 1980 Final Environmental Impact Statement (OSM-EIS-2) to ascertain these amounts and then calculated each State’s or Tribe’s percentage of total historic coal production.

For More Information

To support the implementation of these historic investments and new programs for reclamation and environmental stewardship under the Law, please see additional resources below. 

From the Department of the Interior

From the Biden-Harris White House

Frequently Asked Questions

Following passage of the Law, the Office of Surface Mining and Reclamation Enforcement received several questions as to whether the Law’s provisions for reclamation encompass funding for certain acid mine drainage (AMD) projects.

Below, OSMRE provides guidance on some of these questions.

  • States and tribes have been getting AML money every year for decades – is this just the same? 

No – the annual AML fee-based grants that States and Tribes receive are separate from the Bipartisan Infrastructure Law (BIL) AML grants. The AML fee-based grants are funded primarily by reclamation fees and distributed as required by section 402 of SMCRA, while the BIL AML grants are funded from the United States Treasury and will be distributed as required by section 40701 of the BIL. 

The distribution announced on February 7, 2022, was the first of 15 annual installments under the BIL that will provide approximately $10.87 billion (after BIL-directed reductions) for AML reclamation projects, in addition to funds available under AML-fee based grants. The BIL AML guidance document published on July 21, 2022, provides additional details on the BIL AML grants and expectations for the program for fiscal year (FY) 2022. OSMRE is issuing FY 2023 BIL AML guidance with the FY 2023 BIL AML distribution.

  • The FY 2022 BIL AML Grant Distribution was announced on February 7, 2022. Does this announcement represent a one-time distribution amount to states and Tribes?  

No. As directed by the Law, OSMRE will be distributing approximately $725 million annually for 15 years, beginning in FY2022. Eligible states and Tribes will receive these annual Law AML grant distributions for the remaining years, subject to any required adjustments. The first round of BIL AML grant funds were distributed in FY 2022.The second round of BIL AML grant funds will be distributed in June 2023.

  • What formula was used to determine how much BIL AML funding each State and Tribe gets in FY 2022? 

As directed by the BIL, the distribution amounts were based on the number of tons of coal historically produced in each State or from the applicable Indian lands before August 3, 1977. OSMRE relied on the March 1980 Final Environmental Impact Statement (OSM-EIS-2) to ascertain these amounts and then calculated each State’s or Tribe’s percentage of total historic coal production. Once calculated, that percentage was simply multiplied by $10.87 billion and divided by 15 – with the exception of Alaska. 

  • Why are there exceptions?  

The BIL provides that the total amount of BIL grant funding that each eligible State or Tribe receives over the life of the program will not be less than $20 million, unless the State or Tribe has less than $20 million in unfunded AML reclamation costs.

In FY 2022, Alaska had an unfunded inventory of roughly $25.8 million, so its 15-year allocation was increased from $3.3 million (under the formula) to raise its total to $20 million. The roughly $16.7 million in extra funds to Alaska resulted from a recalculation among the States and Tribes in proportion to their historic coal percentage. The same calculation methodology was applied to Alaska in FY 2023, resulting in a grant distribution amount of $1.3 million.

  • How will the BIL AML distribution amounts be calculated in FY2023?

    The historic coal production numbers in the March 1980 Final Environmental Impact Statement will not change (OSM-EIS-2). However, as eligible States and Tribes update their inventories, OSMRE will adjust distributions to ensure that each eligible State and Tribe receives at least $20 million over the course of the 15-year distribution, unless the amount needed for reclamation on State and Tribal lands is less than $20 million.  

  • Was the same calculation methodology for FY 2022 applied to the FY 2023 BIL AML distribution amounts?  

    Yes.

  • How do states and tribes reconcile recommended labor provisions in the Bipartisan Infrastructure Law AML guidance document that conflict with state or tribal bid laws and regulations?

States and Tribes are encouraged to meet the recommendations set forth in the BIL AML guidance document to the extent those steps are possible and consistent with applicable State or Tribal laws and regulations.

  • Do states and tribes need to use the Council on Environmental Quality (CEQ) Climate and Economic Justice Screening Tool (CEJST) map to identify a “disadvantaged community” to calculate benefits in relation to the Justice40 Initiative?

Yes. The primary resource to identify disadvantaged communities is Version 1 of the Climate and Economic Justice Screening Tool (CEJST) that was developed by the Council on Environmental Quality (CEQ) (screeningtool.geoplatform.gov) and released on November 22, 2022. Another tool to identify disadvantaged communities is available from the Environmental Protection Agency (EPA) at ejscreen.epa.gov/mapper.

A community may be considered disadvantaged based on a combination of: low income; high and/or persistent poverty; high unemployment and underemployment; racial and ethnic residential segregation, particularly where the segregation stems from discrimination by government entities; linguistic isolation; high housing cost burden and substandard housing; distressed neighborhoods; high transportation cost burden and/or low transportation access; disproportionate environmental stressor burden and high cumulative impacts; limited water and sanitation access and affordability; disproportionate impacts from climate change; high energy cost burden and low energy access; jobs lost through the energy transition; access to healthcare; and geographic areas within Tribal jurisdictions. A community may also be considered a disadvantaged community if it is included in the Climate and Economic Justice Screening Tool. (Definition adapted from OMB and CEQ Interim Implementation Guidance for the Justice40 Initiative (M-21-28) dated July 20, 2021.)

  • When will States and Tribes actually get the FY 2023 money? 

We expect eligible States and Tribes will start applying for the FY 2023 funds in June 2023. OSMRE will also publish minor revisions to the final BIL Guidance in June 2023, with pertinent information explaining how eligible States and Tribes may apply for the second BIL distribution of $725 million.

  • Will States and Tribes be able to apply for these BIL funds each year?   

Yes. Eligible States and Tribes will be able to apply annually for the amount specified in each fiscal year’s BIL grant distribution. 

  • Will States and Tribes be required to submit separate grant applications for BIL AML grants and the AML-fee-based grants? 

Yes. OSMRE is requiring a separate grant application for BIL AML funding to ensure—consistent with federal financial assistance requirements—its ability to track the expenditure of BIL funds, ensure proper oversight of taxpayer dollars, facilitate audit reviews, be responsive to reporting requirements, and enhance transparency about the use of funds. OSMRE will continue to work with the States and Tribes to develop procedures that minimize burdens on applicants resulting from separate BIL and fee-based AML applications.

Yes.

  • For AML projects where OSMRE has completed its NEPA review and issued an Authorization to Proceed (ATP) to States or Tribes, will OSMRE require the States or Tribes to resubmit that paperwork for an additional ATP approval using BIL funds, or allow those projects to proceed under prior approvals? 

Assuming there has been no change in the scope of work and all legal requirements (e.g., compliance with the Davis-Bacon Act, and Build America, Buy America Act) have been or will be met, States and Tribes will not need to resubmit projects with a completed NEPA analysis and an ATP to use BIL funding. 

  • Will former and current employees of coal-fired power plants be considered “former and current employees of the coal industry” for purposes of the Law implementation?

Yes.

  • What information must be included in FY2023 grant applications? Only the information that is typically included in grant applications, or something more? For example, the FY2023 Notice of Funding Opportunity lists four things from the Guidance that are supposed to be prioritized: Justice 40/disadvantaged communities, public review of projects, methane reductions, and coal industry worker employment. Does information on those things need to be included in the FY2023 grant application? If so, what kind of information is required?

In order to receive FY2023 BIL funds, grant applications must include a budget justification breakdown explaining how funds will be allocated in the BIL AML subaccounts (see Appendix I: Subaccounts for BIL AML Financial Assistance), and a Program Narrative summarizing how project selection practices will achieve reclamation, and socio-economic benefits.  

To receive FY 2022 BIL AML funds, a State’s or Tribe’s completed grant application must include the OMB-approved forms identified in the BIL AML Grant Notice of Funding Opportunity in order to process required assistance agreement (i.e., signed application for Federal Assistance -SF-424 and related forms, budget justification forms, program narrative forms, etc.). 

  • Will States/Tribes be allowed to consolidate the administrative costs they charge to AML grants to one form of grant, e.g., put all administrative costs for both their AML fee-funded and BIL grant-funded AML work on their BIL grant?

No. As required under the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, at 2 CFR Part 200, Subpart D, grant funds must be expended and accounted for in accordance with applicable statutory authorities and through adequate fiscal control procedures so that the expenditure of these funds can be monitored and tracked to ensure compliance with the assistance agreement. It is imperative to maintain an effective system of controls and accountability for the use of these funds that ensure alignment with the activities supported by the grant agreement.

  • How will the period of performance for the BIL grants be determined? How much flexibility will States and Tribes have to receive funds at different times to better align with their unique financial situations?

The period of performance for each BIL AML grant is five years from the award issue date. OSMRE will, however, work with each State and Tribe to address its unique situation where appropriate.  

  • What information will need to be included in FY23 BIL grant applications?  Only the items in Appendix II, or also some or all of the bulleted items listed under the section “When applying for BIL AML grants, State and Tribal AML programs should include:” (Section V, of the BIL AML Guidance documents)?

In order to receive the FY2023 BIL funds, grant applications must include a budget justification breakdown of how the funds will be allocated in the BIL AML subaccounts (see Appendix I: Subaccounts for BIL AML Financial Assistance), and a Program Narrative summarizing how project selection practices will achieve reclamation, remediation, and socio-economic benefits.  

To receive FY 2023 BIL AML funds, a State’s or Tribe’s completed grant application must include the OMB-approved forms identified in the BIL AML Grant Notice of Funding Opportunity (i.e., signed application for Federal Assistance SF-424 and related forms, budget justification forms, program narrative forms, etc.). 

In addition, Appendix II of the BIL AML Guidance must be submitted as part of the FY 2023 grant application. As indicated in the BIL AML Guidance, Appendix II will be comprised of a list of Problem Area Descriptions (PADs) with AML problems that are proposed to be funded within the 5-year grant period of performance.  Appendix II will also include the types of AML problems within the PAD, the county within each State where the PADs and problems are located, the estimated costs derived from e-AMLIS of the problems within a PAD and the specific problems within each listed PAD proposed to be reclaimed within the grant period.

OSMRE encourages States and Tribes to include the following information at the time of the grant application (see Section V of the BIL AML Guidance):

  • A Statement of how the State or Tribe will prioritize projects employing current or former employees of the coal industry, consistent with applicable State or Tribal law;
  • Plans for engaging with other Federal, State, Tribal, or local governmental agencies and non- governmental entities on workforce training and development issues, including how activities encouraged under Section III  of the BIL AML Guidance will be implemented, if applicable, along with the names of potential partners to support recruiting and training efforts, including community colleges, workforce partners, community-based groups, and unions;
  • Any known linkages to economic redevelopment opportunities created by carrying out proposed projects;
  • A description of how the grantee will address environmental justice issues within coalfield communities;
  • Details of how the grantee will engage with relevant State, Tribal, or local governmental agencies or non-governmental organizations to identify and address any disproportionate burden of adverse human health or environmental effects of coal AML problems on disadvantaged communities, communities of color, low-income communities, and Tribal and Indigenous communities;
  • A description of whether and to what extent proposed projects may reduce greenhouse gas emissions, particularly methane emissions; and
  • Proposed performance measurements.

 

  • Will States and Tribes be required to update their existing AML Reclamation Plans?  

Yes. OSMRE is providing additional information to each State and Tribe about the nature of the updates that their specific AML Reclamation Plans may need. In addition, OSMRE will continue to schedule informal engagement meetings with each State and Tribe receiving BIL funds to discuss these Reclamation Plan updates.

  • Will States and Tribes be allowed to receive BIL funding if they have not completed updates to their AML Reclamation Plans?     

Yes. States and Tribes are not required to complete the AML Reclamation Plan update, review, and approval process as a prerequisite to receiving BIL funds. However, we encourage States and Tribes to begin the informal review of their AML Reclamation Plans by collaborating with OSMRE in anticipation of issuance of formal 884 letters. Once the 884 letters have been issued, OSMRE and each State/Tribe will negotiate a schedule for completing and submitting a formal reclamation plan amendment.

  • Pursuant to section 40701 of the BIL, may eligible States and Tribes use grant funds to design and build AMD treatment facilities? If so, may grant funds be used to design and build AMD treatment facilities that are “stand alone” Priority 3 projects (i.e., not in conjunction with a Priority 1 or Priority 2 site or within a qualified hydrologic unit)?

Yes. Eligible States and Tribes may use BIL AML grant funds to design and build AMD treatment facilities and may use those funds to design and build AMD treatment facilities that are not in conjunction with a Priority 1 or Priority 2 site or within a qualified hydrologic unit. Section 40701(c) of the BIL authorizes grant recipients to use BIL funds for (1) the “activities described in subsections (a) and (b) of section 403 and section 410 of [SMCRA],” and (2) deposit in a long-term abandoned mine land reclamation fund if those amounts are used for, among other things, “the abatement of the causes and the treatment of the effects of acid mine drainage resulting from coal mining practices, including for the costs of building, operating, maintaining, and rehabilitating acid mine drainage treatment systems.” Nothing in the BIL explicitly or implicitly incorporates other law that might limit expenditures for AMD treatment facilities to those that are in conjunction with a Priority 1 or Priority 2 site or within a qualified hydrologic unit, e.g., section 402(g) of SMCRA.

  • Pursuant to section 40701 of the BIL, may eligible States and Tribes use grant funds to operate, maintain, and rehabilitate AMD treatment facilities?

Yes. Eligible States and Tribes may use BIL AML grant funds to operate, maintain, and rehabilitate AMD treatment facilities as part of the activities described in section 40701(c) of the BIL. These uses are contemplated by the BIL, and nothing in the relevant portions of the BIL or SMCRA forecloses these uses.

 

The Consolidated Appropriations Act, 2023, amended section 40701 of the Bipartisan Infrastructure Law (BIL) to authorize eligible States and Tribes to deposit up to 30 percent of their annual BIL abandoned mine land (AML) grant amount in a long-term AML reclamation fund established under State or Tribal law. 30 U.S.C. § 1231a(c)(2). This amendment is commonly referred to as the STREAM Act.

  1. Pursuant to the STREAM Act, may eligible States and Tribes place a portion of their BIL grant funds into their fee-based acid mine drainage (AMD) set aside accounts?

    A State or Tribe may choose to deposit up to 30 percent of their BIL AML grant in an already existing fee-based AMD set-aside account if consistent with State/Tribal law and the applicable reclamation plan.

    States and Tribes may also choose to establish a long-term STREAM AML reclamation fund that is separate from any existing fee-based AMD set-aside account, given the different funding source and purposes for which the STREAM Act funds can be used. Regardless of whether a State or Tribe sets up a separate long-term AML reclamation fund or uses an existing fee-based AMD set-aside account, the State or Tribe must ensure that it has adequate fiscal, accounting, and internal control measures in place to separately monitor and track STREAM Act and fee-based AMD set-aside funds. 

    States and Tribes must demonstrate in their STREAM Act fund request that their financial management system is capable of tracing STREAM Act funds “to a level of expenditures adequate to establish that such funds have been used according to the Federal statutes, regulations, and the terms and conditions of the Federal award.” 2 C.F.R. § 200.302(a). At a minimum, this will include ensuring that STREAM Act funds and interest attributed to those funds can be accounted for, tracked, and used only for one of the three purposes set forth in 30 U.S.C. § 1231a(c)(2)(A)(i)-(iii). 
     

  2. If BIL grant funds are deposited into a long-term reclamation fund separate from an already existing fee-based AMD set-aside account, is the long-term reclamation fund required to receive interest in the same way that the fee-based AMD set-aside account does?

    Yes. Long-term AML reclamation funds established pursuant to the STREAM Act and fee-based AMD set-aside accounts established pursuant to section 402(g)(6) of the Surface Mining Control Reclamation and Enforcement Act of 1977 (SMCRA) are both required to be deposited in those accounts “together with all interest earned on the amounts.” 30 U.S.C. § 1231a(c)(2)(A) and § 1232(g)(6)(A).
     

  3. Will AML projects funded by a State’s or Tribe’s long-term AML reclamation fund be subject to National Environmental Policy Act (NEPA) and Authorization to Proceed (ATP) requirements? 

    An AML project that is exclusively funded by STREAM Act funds—like projects exclusively funded by fee-based AMD set-aside funds—is not subject to NEPA or ATP requirements but must be entered into e-AMLIS and included in the annual grant reports and Annual Evaluation report.

    However, an AML project that is funded by combining STREAM Act funds with another funding source, such as BIL AML, AML fee-based, or Abandoned Mine Land Economic Revitalization (AMLER) funds, is subject to NEPA and ATP requirements. These projects must also be entered into e-AMLIS and included in the annual grant reports and Annual Evaluation Report.
     

  4. Will AML projects funded by a State’s or Tribe’s long-term AML reclamation fund be subject to the Build America, Buy America Act (BABA) and the Davis-Bacon Act?

    Yes, the BIL requires all projects that will be assisted in whole or in part by funding made available under the BIL to comply with BABA and the Davis-Bacon Act. Please refer to the latest version of the Guidance on the Bipartisan Infrastructure Law Abandoned Mine Land Grant Implementation for additional information on BABA and the Davis-Bacon Act.
     

  5. Are States and Tribes required to report on the status of their BIL long-term AML reclamation fund once established?

    Yes, the STREAM Act requires annual reporting on the status and balance of long-term AML reclamation funds for the life of the fund. Refer to 30 U.S.C. § 1231a(c)(2)(B) and the STREAM Act guidance for more information on reporting requirements. 
     

  6. The STREAM Act was enacted in December 2022. Can eligible States and Tribes submit a grant amendment for their FY 2022 grant funds to place up to 30% into a long-term AML reclamation fund to earn interest?

    Yes, eligible States and Tribes may submit a FY 2022 grant amendment request, which, if approved, would allow them to deposit up to 30 percent of their FY 2022 BIL grant into a long-term AML reclamation fund. However, to make such a deposit, eligible States and Tribes must have sufficient statutory authority and a long-term AML reclamation fund that is consistent with the State’s or Tribe’s existing OSMRE-approved AML reclamation plan. States and Tribes should submit with their grant amendment request a letter/legal opinion from the State’s or Tribe’s Attorney General or the reclamation agency’s chief legal officer that demonstrates that the State or Tribe has the necessary statutory authority under State or Tribal law to deposit the funds into a long-term AML reclamation fund and to expend the funds in compliance with the STREAM Act, the BIL, SMCRA, and their approved AML reclamation plan. Refer to the STREAM Act guidance for additional information on STREAM Act fund requests.

    Additional FAQs
     

  7. If I deposit my STREAM Act funds into my existing fee-based AMD set-aside account authorized under section 402(g)(6) of SMCRA (as previously approved by OSMRE in my AML program), how may these funds be used?

    This is a fact specific inquiry that will depend on the State’s or Tribe’s existing statutory authority. If the State’s or Tribe’s Attorney General or the reclamation agency’s chief legal officer reasonably determines that existing law provides sufficient authority to place these funds in an existing AMD set-aside account for the expanded uses contemplated under the STREAM Act, then the State/Tribe may use all of the STREAM Act funds (and interest earned on STREAM Act funds) for all the authorized uses (i.e., coal mine subsidence, coal mine fires, and AMD abatement for both qualified and non-qualified hydrologic units). Funds in the existing AMD set-aside account from fee-based collections (and interest earned on those funds) can only be used for AMD abatement in qualified hydrologic units as specified in 30 U.S.C. § 1232(g)(6).

    However, if OSMRE, as informed by information provided by the State or Tribal legal officer, concludes that a State or Tribe’s existing statutory authority restricts the use of all funds placed in the existing set-aside to only AMD abatement in qualified hydrologic units, then STREAM Act funds placed in an existing AMD set-aside account could only be used for AMD abatement in qualified hydrologic units as specified in 30 U.S.C. § 1232(g)(6). Under this scenario, the State/Tribe would have the option to obtain the requisite State/Tribal statutory authority and/or amend its AML Reclamation Plan to facilitate the broader uses of the STREAM Act funds as prescribed in 30 U.S.C. § 1231a(c)(2).
     

  8. Do I have to request the entire 30% in each annual BIL grant application?

    No. States and Tribes have the flexibility to determine what percentage of each annual grant amount will meet their needs, up to 30% of their annual BIL grant funding. 
     

  9. Why does my grant award include new terms and conditions regarding STREAM Act funds?

    The new terms and conditions describe the legal requirement that adequate financial management systems and accounting controls must be in place to monitor and track STREAM Act funds.   
     

  10. Are States and Tribes required to update their AML Reclamation Plans before they can begin depositing BIL grant funds into a long-term AML reclamation fund?
    It depends. It is possible that a State or Tribe currently has sufficient authority pursuant to State/Tribal law(s) and its already-approved reclamation plan to allow that State or Tribe to deposit and expend funds for the expanded purposes set forth in the STREAM Act without further amendment. A State or Tribe that wants to put money in a long-term AML set-aside account should submit with its grant application or grant amendment request a letter/legal opinion from the State’s or Tribe’s Attorney General or the reclamation agency’s chief legal officer that demonstrates that the State or Tribe has the necessary statutory authority under State or Tribal law, whether existing or newly enacted, to deposit the funds into a long-term AML reclamation fund and to expend the funds in compliance with the STREAM Act, the BIL, SMCRA, and their approved AML reclamation plan. Refer to the STREAM Act guidance for additional information on STREAM Act fund requests.
     
  11. What is the process for submitting the letter/legal opinion from the State’s or Tribe’s Attorney General or the reclamation agency’s chief legal officer?

    The letter/legal opinion from the State’s or Tribe’s Attorney General or the reclamation agency’s chief legal officer must be uploaded into GrantSolutions along with the grant application or grant amendment request. In addition, if this is the first time developing such documentation, we encourage you to provide a copy of this letter/legal opinion to your regional OSMRE office.
     

  12. What information should be included in the letter/legal opinion from the State’s or Tribe’s Attorney General or the reclamation agency’s chief legal officer?

    States and Tribes should submit with their grant application or grant amendment request a letter/legal opinion from the State’s or Tribe’s Attorney General or the reclamation agency’s chief legal officer that demonstrates that the State or Tribe has the necessary statutory authority under State or Tribal law to deposit the funds into a long-term AML reclamation fund and to expend the funds in compliance with the STREAM Act, the BIL, SMCRA, and their approved AML reclamation plan.

    States and Tribes should include the following in the letter/legal opinion from the State’s or Tribe’s Attorney General or the reclamation agency’s chief legal officer:

    • An analysis with specific citations to State/Tribal statutes, regulations, and an approved reclamation plan, as applicable, that demonstrate the ability to establish a long-term AML reclamation fund or to deposit BIL AML grant funds in an existing fee-based AMD set-aside account. If an existing fee-based AMD set-aside account will be used, the letter should demonstrate, pursuant to 2 C.F.R. § 200.302(a), how STREAM Act funds will be monitored, tracked, and generally accounted for separate from fee-based monies; and
       
    • An analysis with specific citations to State/Tribal statutes, regulations, and an approved reclamation plan, as applicable, that demonstrate the ability to expend grant monies to address AMD, subsidence, and mine fires with BIL AML grant funds set-aside pursuant to the STREAM Act. If an existing fee-based AMD set-aside account will be used, the letter should demonstrate how STREAM Act funds will be monitored, traced, and generally accounted to ensure that fee-based monies are only spent on AMD projects within qualified hydrologic units.
       
  13. Are States and Tribes required to report on the status of long-term AML reclamation funds beyond the BIL grant period of performance?

    Yes. States and Tribes must annually document and report the status and balance of the long-term AML reclamation fund amounts for the life of the long-term AML reclamation fund. 30 U.S.C. § 1231a(c)(2)(B).

    Although the period of performance for a BIL AML grant is five years, with an option for a one-time no-cost extension of up to one year, subject to OSMRE’s review and approval, eligible States and Tribes must report annually on the status of each long-term AML reclamation fund (projects funded, fund expenditures and the balance of available funds) until the funds are totally expended.

    All AML projects, including those that are exclusively funded using BIL long-term AML reclamation funds, must be entered into e-AMLIS and included in Annual Evaluation Reports and annual grant reports. For specifics related to e-AMLIS data entry, see OSMRE’s Directive AML-1. For information related to annual reporting, see OSMRE’s Directive AML-22.
     

  14. Will a fund type designation for funds set aside under the STREAM Act be added in eAMLIS to separate it from existing funds designations of SGA, BIL, MLR, and AMA?

    Yes. By June 2024, e-AMLIS will incorporate a new funding designation that will allow for the tracking of AML problems reclaimed using the STREAM Act funding source.
     

  15. Can OSMRE use data in e-AMLIS to track projects funded through STREAM Act set aside accounts?

    Yes. OSMRE will be able to use data from e-AMLIS once the new code is established by June 2024.  While e-AMLIS will house data for completed costs of AML problems reclaimed with STREAM Act funds, other related project costs such as procurement actions and project engineering and design costs are not captured in e-AMLIS. Therefore, it will be necessary to fulfill the reporting requirements on the use of the STREAM Act funds to account for all project costs.
     

  16. Does the STREAM Act or the STREAM Act guidance place a time limit on the expenditure of BIL AML reclamation grant funds deposited into a long-term AML reclamation fund?

    No. Neither the STREAM Act nor the STREAM Act guidance place any time limits on the expenditure of those funds. 30 U.S.C. § 1231a(c)(2)(C)(i) -(ii) specifically provides that amounts retained pursuant to the STREAM Act are not subject to the redistribution of unused funds under 30 U.S.C. § 1231a(4)(B) or any other limitation that may be placed on annual BIL AML grant funds.