§ 784.28 - What additional permitting requirements apply to proposed surface activities in, through, or adjacent to perennial or intermittent streams?

§ 784.28 What additional permitting requirements apply to proposed surface activities in, through, or adjacent to perennial or intermittent streams?

(a) Clean Water Act requirements. If the proposed permit area includes waters subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 1251 et seq., the regulatory authority must condition the permit to prohibit initiation of mining-related activities in or affecting those waters before you obtain all necessary authorizations, certifications, and permits under the Clean Water Act, 33 U.S.C. 1251 et seq.

(b) To what activities does this section apply ? You, the permit applicant, must provide the information and demonstrations required by paragraphs (c) through (g) of this section, as applicable, whenever you propose to conduct mining activities -

(1) In or through a perennial or intermittent stream; or

(2) On the surface of lands within 100 feet of a perennial or intermittent stream. You must measure this distance 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 propose to mine through a perennial or intermittent stream, your application must include a plan to construct -

(i) A postmining surface drainage pattern that is similar to the premining surface drainage pattern, relatively stable, and in dynamic near-equilibrium; and

(ii) Postmining stream-channel configurations that are relatively stable and similar to the premining configuration of perennial and intermittent stream channels.

(2) The regulatory authority may approve or require a postmining surface drainage pattern or stream-channel configuration that differs from the pattern or configuration otherwise required under paragraph (c)(1) of this section when the regulatory authority finds that a different pattern or configuration is necessary or appropriate to -

(i) Ensure stability;

(ii) Prevent or minimize downcutting or widening of reconstructed stream channels and control meander migration;

(iii) Promote enhancement of fish and wildlife habitat;

(iv) Accommodate any anticipated temporary or permanent increase in surface runoff as a result of mining and reclamation;

(v) Accommodate the construction of excess spoil fills, coal mine waste refuse piles, or coal mine waste impounding structures;

(vi) Replace a stream that was channelized or otherwise severely altered prior to submittal of the permit application with a more natural, relatively stable, and ecologically sound drainage pattern or stream-channel configuration; or

(vii) Reclaim a previously mined area.

(d) Streamside vegetative corridors.

(1) If you propose to conduct any mining activities identified in paragraph (b) of this section, your application must include a plan to establish a vegetated streamside corridor at least 100 feet wide on each side of the stream as part of the reclamation process following the completion of mining activities on the surface of land within that area.

(2) The plan submitted under paragraph (d)(1) of this section must be consistent with natural vegetation patterns.

(3) The plan submitted under paragraph (d)(1) of this section must be consistent with the streamside vegetative corridor requirements of § 817.57(d) of this chapter.

(4) The corridor width must be measured horizontally on a line perpendicular to the stream, beginning at the ordinary high water mark.

(5) Paragraphs (d)(1) through (2) of this section do not apply to prime farmland historically used for cropland.

(e) What demonstrations must I include in my application if I propose to conduct activities in or within 100 feet of a perennial or intermittent stream?

(1) Except as provided in paragraphs (e)(5), (e)(6), and (i) of this section and § 817.57(i) of this chapter, your application must contain the applicable demonstrations set forth in the table if you propose to conduct mining activities in or through a perennial or intermittent stream or on the surface of land within 100 feet of a perennial or intermittent stream, as specified in paragraph (b) of this section.

Demonstration	Activity
	Any activity other than mining through or permanently diverting a stream or construction of an excess spoil fill, coal mine waste refuse pile, or impounding structure that encroaches upon any part of a stream	Mining through or permanently diverting a stream	Construction of an excess spoil fill, coal mine waste refuse pile, or impounding structure that encroaches upon any part of a stream
(i) The proposed activity would not cause or contribute to a violation of applicable state or tribal water quality standards, including, but not limited to, standards established under the authority of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c)	Yes	Yes	Yes.
(ii) The proposed activity would not cause material damage to the hydrologic balance outside the permit area or upset the dynamic near-equilibrium of streams outside the permit area	Yes	Yes	Yes.
(iii) The proposed activity would not result in conversion of the affected stream segment from perennial to ephemeral	Yes	Yes	Not applicable.
(iv) The proposed activity would not result in conversion of the affected stream segment from intermittent to ephemeral or from perennial to intermittent	Yes	Yes, except as provided in paragraphs (e)(2) and (5) of this section	Not applicable.
(v) There is no practicable alternative that would avoid mining through or diverting a perennial or intermittent stream	Not applicable	Yes, except as provided in paragraph (e)(3) of this section	Yes.
(vi) After evaluating all potential upland locations in the vicinity of the proposed operation, including abandoned mine lands and unreclaimed bond forfeiture sites, there is no practicable alternative that would avoid placement of excess spoil or coal mine waste in a perennial or intermittent stream	Not applicable	Not applicable	Yes.
(vii) The proposed operation has been designed to minimize the extent to which perennial or intermittent streams will be mined through, diverted, or covered by an excess spoil fill, a coal mine waste refuse pile, or a coal mine waste impounding structure	Not applicable	Yes, except as provided in paragraphs (e)(3) and (5) of this section	Yes.
(viii) The stream restoration techniques in the proposed reclamation plan are adequate to ensure restoration or improvement of the form, hydrologic function (including flow regime), dynamic near-equilibrium, streamside vegetation, and ecological function of the stream after you have mined through it, as required by § 817.57 of this chapter	Not applicable	Yes, except as provided in paragraph (e)(5) of this section	Not applicable.
(ix) The proposed operation has been designed to minimize the amount of excess spoil or coal mine waste that the proposed operation will generate	§ 784.35(b) of this part requires minimization of excess spoil	§ 784.35(b) of this part requires minimization of excess spoil	Yes.
(x) To the extent possible using the best technology currently available, the proposed operation has been designed to minimize adverse impacts on fish, wildlife, and related environmental values	Yes	Yes	Yes.
(xi) The fish and wildlife enhancement plan prepared under § 784.16 of this part includes measures that would fully and permanently offset any long-term adverse impacts on fish, wildlife, and related environmental values within the footprint of each excess spoil fill, coal mine waste refuse pile, and coal mine waste impounding structure	Not applicable	Not applicable	Yes.
(xii) Each excess spoil fill, coal mine waste refuse pile, and coal mine waste impounding structure has been designed in a manner that will not result in the formation of toxic mine drainage	Not applicable	Not applicable	Yes.
(xiii) The revegetation plan prepared under § 784.12(g) of this part requires reforestation of each completed excess spoil fill if the land is forested at the time of application or if the land would revert to forest under conditions of natural succession	Not applicable	Not applicable	Yes.

(2)

(i) As part of a proposal to mine through an intermittent stream, you may propose to convert a minimal portion of the mined-through segment of an intermittent stream to an ephemeral stream. The regulatory authority may approve the proposed conversion only if you demonstrate, and the regulatory authority finds, that the conversion would not degrade the hydrologic function, dynamic near-equilibrium, or the ecological function of the stream as a whole within the mined area, as determined by comparison with the stream assessment conducted under § 784.19(c)(6) of this part.

(ii) Paragraph (e)(2)(i) of this section does not apply to the circumstances described in paragraph (e)(5) of this section.

(3)

(i) Paragraphs (e)(1)(v) and (vii) of this section do not apply to a proposal to mine through a segment of an intermittent stream when that segment meets the criteria of paragraph (e)(3)(ii) of this section, provided you demonstrate, and the regulatory authority finds, that implementation of the proposed mining and reclamation plan -

(A) Will improve the form of the stream segment;

(B) Will improve the hydrologic function of the stream;

(C) Is likely to result in improvement of the biological condition or ecological function of the stream;

(D) Will not further degrade the hydrologic function, dynamic near-equilibrium, biological condition, or ecological function of the stream; and

(E) Will result in establishment of a streamside vegetative corridor for the stream segment in accordance with § 817.57(d) of this chapter.

(ii) To qualify for purposes of paragraph (e)(3)(i) of this section, a stream segment must display both of the following characteristics:

(A) Prior anthropogenic activity has resulted in substantial degradation of the profile or dimensions of the stream channel; and

(B) Degradation of the stream channel has resulted in a substantial adverse impact on the ecological function of the stream.

(4) Paragraph (e)(1) of this section does not apply to a stream segment that will be part of a permanent impoundment approved and constructed under § 817.49(b) of this chapter.

(5) Paragraphs (e)(1)(iv) and (vii) of this section and the requirement for restoration of the hydrologic and ecological functions and the dynamic near-equilibrium of a stream in paragraph (e)(1)(viii) of this section do not apply to an intermittent stream segment if -

(i) The intermittent segment is a minor interval in what is otherwise a predominantly ephemeral stream;

(ii) You demonstrate, and the regulatory authority finds, that the intermittent segment has no significant fish, wildlife, or related environmental values, as documented by the baseline data collected under § 784.19(c)(6) of this part; and

(iii) You demonstrate, and the regulatory authority finds, that conversion of the intermittent stream segment will not adversely affect water uses.

(f) What design requirements apply to the diversion, restoration, and reconstruction of perennial and intermittent stream channels?

(1)

(i) You must design permanent stream-channel diversions, temporary stream-channel diversions that will remain in use for 3 or more years, and stream channels to be reconstructed after the completion of mining to restore, approximate, or improve the premining characteristics of the original stream channel, to promote the recovery and enhancement of aquatic habitat and the ecological and hydrologic functions of the stream, and to minimize adverse alteration of stream channels on and off the site, including channel deepening or enlargement.

(ii) Pertinent stream-channel characteristics include, but are not limited to, the baseline stream pattern, profile, dimensions, substrate, habitat, and natural vegetation growing in the riparian zone and along the banks of the stream.

(iii) For temporary stream-channel diversions that will remain in use for 3 or more years, the vegetation proposed for planting along the banks of the diversion need not include species that would not reach maturity until after the diversion is removed.

(2) You must design the hydraulic capacity of all temporary and permanent stream-channel diversions to be at least equal to the hydraulic capacity of the unmodified stream channel immediately upstream of the diversion, but no greater than the hydraulic capacity of the unmodified stream channel immediately downstream from the diversion.

(3) You must design all temporary and permanent stream-channel diversions in a manner that ensures that the combination of channel, bank, and flood-plain configuration is adequate to pass safely the peak runoff of a 10-year, 6-hour precipitation event for a temporary diversion and a 100-year, 6-hour precipitation event for a permanent diversion.

(4) You must submit a certification from a qualified registered professional engineer that the designs for all stream-channel diversions and all stream channels to be reconstructed after the completion of mining meet the design requirements of this section and any additional design criteria established by the regulatory authority. This certification may be limited to the location, dimensions, and physical characteristics of the stream channel.

(g) What requirements apply to establishment of standards for restoration of the ecological function of a stream?

(1) If you propose to mine through a perennial or intermittent stream, the regulatory authority must establish standards for determining when the ecological function of the reconstructed stream has been restored. Your application must incorporate those standards and explain how you will meet them.

(2) In establishing standards under paragraph (g)(1) of this section, the regulatory authority must coordinate with the appropriate agencies responsible for administering the Clean Water Act, 33 U.S.C. 1251 et seq., to ensure compliance with all Clean Water Act requirements.

(3)

(i) The biological component of the standards established under paragraph (g)(1) of this section must employ the best technology currently available, as specified in paragraphs (g)(3)(ii) through (iv) of this section.

(ii) For perennial streams, the best technology currently available includes an assessment of the biological condition of the stream, as determined by an index of biological condition or other scientifically-defensible bioassessment protocols consistent with § 784.19(c)(6)(vii) of this part. Standards established under paragraph (g)(1) of this section for perennial streams -

(A) Need not require that a reconstructed stream or stream-channel diversion have precisely the same biological condition or biota as the stream segment did before mining.

(B) Must prohibit substantial replacement of pollution-sensitive species with pollution-tolerant species.

(C) Must require that populations of organisms used to determine the biological condition of the reconstructed stream or stream-channel diversion be self-sustaining within that stream segment.

(iii) Paragraph (g)(3)(ii) of this section also applies to intermittent streams whenever a scientifically defensible biological index and bioassessment protocol have been established for assessment of intermittent streams in the state or region in which the stream is located.

(iv)

(A) Except as provided in paragraph (g)(3)(iii) of this section, the best technology currently available for intermittent streams consists of the establishment of standards that rely upon restoration of the form, hydrologic function, and water quality of the stream and reestablishment of streamside vegetation as a surrogate for the biological condition of the stream.

(B) The regulatory authority must reevaluate the best technology currently available for intermittent streams under paragraph (g)(3)(iv)(A) of this section at 5-year intervals. Upon conclusion of that evaluation, the regulatory authority must make any appropriate adjustments before processing permit applications submitted after the conclusion of that evaluation.

(4) Standards established under paragraph (g)(1) of this section must ensure that the reconstructed stream or stream-channel diversion will not -

(i) Preclude attainment of the designated uses of that stream segment under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), before mining, or, if there are no designated uses, the premining uses of that stream segment; or

(ii) Result in that stream segment not meeting the applicable anti-degradation requirements under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), as adopted by a state or authorized tribe or as promulgated in a federal rulemaking under the Clean Water Act.

(h) What finding must the regulatory authority make before approving a permit application under this section? The regulatory authority may not approve an application that includes a proposal to conduct mining activities in a perennial or intermittent stream or on the surface of land within 100 feet of a perennial or intermittent stream unless it first makes a specific written finding that you have fully satisfied all applicable requirements of paragraphs (c) through (f) of this section. The finding must be accompanied by a detailed explanation of the rationale for the finding.

(i) Programmatic alternative. Paragraphs (c) 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 mining activities, including the construction of stream-channel diversions, that would result in more than a de minimis disturbance of perennial or intermittent streams or the surface of land within 100 feet of a perennial or intermittent stream.