§ 817.57 - Hydrologic balance: Stream buffer zones.

§ 817.57 What additional performance standards apply to mining activities conducted in or through a perennial or intermittent stream or on the surface of Hydrologic balance: Stream buffer zones.

(a) No land within 100 feet of a perennial

or intermittent

stream

?

(a) Compliance with federal, state, and tribal water quality laws and regulations.

(1) You may conduct mining activities in or affecting waters subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 1251 et seq., only if you first obtain all necessary authorizations, certifications, and permits under that law.

(2) Mining activities must comply with all applicable state and tribal laws and regulations concerning surface water and groundwater.

(b) Prohibition on mining in or within 100 feet of a perennial or intermittent stream. You may not conduct mining activities in or through a perennial or intermittent stream, or that would disturb the surface of land within 100 feet of a perennial or intermittent stream, unless the regulatory authority authorizes you to do so in the permit after making the findings required under § 784.28 of this chapter. The 100-foot distance must be measured horizontally on a line perpendicular to the stream, beginning at the ordinary high water mark.

(c) Postmining surface drainage pattern and stream-channel configuration.

(1) If you mine through or permanently divert a perennial or intermittent stream, you must construct a postmining surface drainage pattern and stream-channel configurations that are consistent with the surface drainage pattern and stream-channel configurations approved in the permit in accordance with § 784.28 of this chapter.

(2) Upon completion of construction of a stream-channel diversion for a perennial or intermittent stream, or reconstruction of a stream channel after mining through a perennial or intermittent stream, you must obtain a certification from a qualified registered professional engineer that the stream-channel diversion or reconstructed stream channel has been constructed in accordance with the design approved in the permit and that it meets all engineering-related requirements of this section. This certification may be limited to the location, dimensions, and physical characteristics of the stream channel.

(d) Establishment of streamside vegetative corridors.

(1)

(i) If you mine through a perennial or intermittent stream, you must establish a vegetative corridor at least 100 feet wide along each bank of the reconstructed stream channel. The corridor must be consistent with natural vegetation patterns.

(ii) You must establish a vegetative corridor on any land that you disturb within 100 feet of a perennial or intermittent stream. The corridor must be consistent with natural vegetation patterns.

(iii) If you divert a perennial or intermittent stream, you must establish a vegetative corridor at least 100 feet wide along each bank of the stream-channel diversion, with the exception of temporary diversions that will be in place less than 3 years. The corridor must be consistent with natural vegetation patterns.

(iv) The 100-foot distance mentioned in paragraphs (d)(1)(i) through (iii) of this section must be measured horizontally on a line perpendicular to the stream, beginning at the ordinary high water mark.

(2) When planting the streamside vegetative corridors required by paragraph (d)(1) of this section, you must -

(i) Use appropriate native species adapted to the area, unless an agency responsible for implementing section 404 of the Clean Water Act, 33 U.S.C. 1344, requires the use of non-native species.

(ii) Ensure that the species planted are consistent with the revegetation plan approved in the permit.

(iii) Include appropriate native hydrophytic vegetation, vegetation typical of floodplains, or hydrophilic vegetation characteristic of riparian areas and wetlands to the extent that the corridor contains suitable habitat for those species and the stream and the geomorphology of the area are capable of supporting vegetation of that nature.

(iv) Use native trees and shrubs when planting areas within the streamside corridor that were forested at the time of application or that would revert to forest under conditions of natural succession.

(3) Paragraphs (d)(1) and (2) of this section do not require planting of hydrophytic or hydrophilic species within those portions of streamside corridors where the stream, soils, or climate are incapable of providing the moisture or other growing conditions needed to support and sustain hydrophytic or hydrophilic species. In those situations, you must plant the corridor with appropriate native species that are consistent with the baseline information concerning natural streamside vegetation included in the permit application under § 783.19 of this chapter, unless otherwise directed by an agency responsible for implementing section 404 of the Clean Water Act, 33 U.S.C. 1344.

(4) Paragraphs (d)(1) through (3) of this section do not apply to -

(i) Prime farmland historically used for cropland; or

(ii) Situations in which establishment of a streamside vegetative corridor comprised of native species would be incompatible with an approved postmining land use that is implemented before final bond release under §§ 800.40 through 800.43 of this chapter.

(e) Restoration of form. If you mine through or permanently divert a perennial or intermittent stream, you must demonstrate successful restoration or reconstruction of the form of the stream channel in accordance with the design approved in the permit before you qualify for Phase I bond release under § 800.42(b)(1) of this chapter.

(f) Restoration of hydrologic function. If you mine through or permanently divert a perennial or intermittent stream, you must demonstrate restoration of the hydrologic function of the reconstructed stream before you qualify for Phase II bond release under § 800.42(b)(2) of this chapter. Restoration of the hydrologic function includes, but is not limited to, restoration of the flow regime, except as otherwise approved in the permit under § 784.28(e)(2) of this chapter.

(g) Restoration of ecological function. If you mine through or permanently divert a perennial or intermittent stream, the reconstructed stream or stream-channel diversion must meet the criteria approved in the permit for determining restoration of ecological function, as established by the regulatory authority under § 784.28(g) of this chapter, before you qualify for final bond release under §§ 800.40 through 800.43 of this chapter.

(h) Prohibition on placement of siltation structures in perennial or intermittent streams.

(1)

(i) Except as provided in paragraph (h)(2) of this section, you may not construct a siltation structure in a perennial or intermittent stream or use perennial or intermittent streams as waste treatment systems to convey surface runoff from the disturbed area to a sedimentation pond.

(ii) Paragraph (h)(1)(i) of this section does not prohibit the construction of a siltation structure in a stream channel immediately downstream of a stream segment that is mined through.

(2) If approved in the permit, the prohibition in paragraph (h)(1) of this section will not apply to excess spoil fills, coal mine waste refuse piles, or coal mine waste impounding structures in steep-slope areas when you demonstrate, and the regulatory authority finds in writing, that use of a perennial or intermittent stream segment as a waste treatment system for sediment control or construction of a sedimentation pond or other siltation structure in a perennial or an intermittent stream would have less overall adverse impact on fish, wildlife, and related environmental values than construction of diversions and sedimentation ponds or other siltation structures on slopes above the stream.

(3) When the circumstances described in paragraph (h)(2) of this section exist, the following requirements apply:

(i) You must minimize the length of stream used as a waste treatment system to the extent possible and, when practicable, maintain an undisturbed buffer along that stream segment in accordance with paragraph (b) of this section.

(ii) You must place the sedimentation pond or other siltation structure as close to the toe of the excess spoil fill, coal mine waste refuse pile, or coal mine waste impounding structure as possible.

(iii) Following the completion of construction and revegetation of the fill or coal mine waste structure, you must -

(A) Remove and properly dispose of accumulated sediment in the siltation structure and any stream segment between the inlet of the siltation structure and the toe of the excess spoil fill or coal mine waste structure;

(B) Remove the sedimentation pond or other siltation structure; and

(C) Restore the stream segment in accordance with paragraphs (e) through (g) of this section.

(i) Programmatic alternative. Paragraphs (b) through (h) of this section will not apply to a state program approved under subchapter T of this chapter if that program is amended to expressly prohibit all surface mining activities, including the construction of stream-channel diversions, that would result in more than a de minimis disturbance of land in or within 100 feet of a perennial or intermittent stream.

or an intermittent stream shall be disturbed by underground mining activities, unless the regulatory authority specifically authorizes underground mining activities closer to, or through, such a stream. The regulatory authority may authorize such activities only upon finding that -

(1) Underground 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 § 817.43.

(b) The area not to be disturbed shall be designated as a buffer zone, and the operator shall mark it as specified in § 817.11.

[79 FR 76232, Dec. 22, 2014, as amended at 81 FR 93418, Dec. 20, 2016; 82 FR 54999, Nov. 17, 2017]