[Federal Register Volume 60, Number 135 (Friday, July 14, 1995)]
[Rules and Regulations]
[Pages 36213-36224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17166]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 934
North Dakota Regulatory Program
agency: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
action: Final rule; approval of amendment.
-----------------------------------------------------------------------
summary: OSM is approving, with certain exceptions and additional
requirements, a proposed amendment to the North Dakota regulatory
program (hereinafter referred to as the ``North Dakota program'') under
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). North
Dakota proposed revisions pertaining to its policy document entitled
``Standards for Evaluation of Revegetation Success and Recommended
Procedures for Pre- and Postmining Vegetation Assessments.'' The
amendment is intended to revise this document to be consistent with the
Federal regulations and to improve operational efficiency.
effective date: July 14, 1995.
for further information contact: Guy Pagett, Telephone: (307) 261-5776.
SUPPLEMENTARY INFORMATION:
I. Background on the North Dakota Program
On December 15, 1980, the Secretary of the Interior conditionally
approved the North Dakota program. General background information on
the North Dakota program, including the Secretary's findings, the
disposition of comments, and the conditions of approval of the North
Dakota program can be found in the December 15, 1980, Federal Register
(45 FR 82214). Subsequent actions concerning North Dakota's program and
program amendments can be found at 30 CFR 934.12, 934.13, 934.15,
934.16, and 934.30.
II. Proposed Amendment
By letter dated February 17, 1994, North Dakota, submitted a
proposed amendment to its program (Amendment No. XX, administrative
record No. ND-U-01) pursuant to SMCRA (30 U.S.C. 1201 et seq.). North
Dakota submitted proposed revisions to its policy document entitled
``Standards for Evaluation of Revegetation Success and Recommended
Procedures for Pre- and Postmining Vegetation Assessments''
(hereinafter, the ``revegetation document'') in response to required
program amendments at 30 CFR 934.16(b) through (i), (w), and (x), and
at its own initiative.
OSM announced receipt of the proposed amendment in the March 14,
1994, Federal Register (49 FR 11744), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. ND-U-05).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on April 13, 1994.
During its review of the amendment, OSM identified concerns
relating to certain provisions of North Dakota's revegetation document.
OSM notified North Dakota of the concerns by letter dated September 9,
1994 (administrative record No. ND-U-10). On September 14, 1994, North
Dakota and OSM, during a telephone conference, discussed certain
provisions of OSM's September 9, 1994, issue letter (administrative
record No. ND-U-13). North Dakota responded in a letter dated December
21, 1994 (administrative record No. ND-U-14), by submitting a revised
amendment and additional explanatory information that addressed the
concerns identified by OSM.
Based upon the revisions to and additional explanatory information
for the proposed program amendment submitted by North Dakota, OSM
reopened the public comment period in the January 19, 1995, Federal
Register (60 FR 3790; administrative record No. ND-U-15). The public
comment period ended on February 3, 1995.
Subsequently, North Dakota requested a meeting with OSM to discuss
it's
[[Page 36214]]
December 21, 1994, revisions that were made in response to OSM's
September 9, 1994, issue letter. OSM and North Dakota met on April 11,
1995 (administrative record No. ND-U-16). Thereafter, by letter dated
May 11, 1995 (administrative record No. ND-U-17), North Dakota
submitted, at its own initiative, additional revisions and explanatory
information to its revegetation success document.
Based upon the revisions to and additional explanatory information
for the proposed program amendment submitted by North Dakota, OSM
reopened the public comment period in the May 23, 1995, Federal
Register (60 FR 27246; administrative record No. ND-U-23). The public
comment period ended on June 7, 1995.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with certain exceptions and additional
requirements, that the proposed program amendment submitted by North
Dakota on February 17, 1994, and as revised by it and supplemented with
additional explanatory information on December 21, 1994, is no less
effective than the corresponding Federal regulations. Accordingly, the
Director approves the proposed amendment.
1. General Substantive Revisions to North Dakota's Revegetation
Document
North Dakota proposed revisions to its revegetation document that
are general in nature in that the revisions are made throughout the
document and/or apply to most if not all success standards and sampling
techniques for all land uses. These revisions include (1) reference of
technical documents used and other agencies consulted during
development of the revegetation document, (2) limiting a permittee's
use of revegetation success standards and sampling techniques to those
approved in the revegetation document unless North Dakota and OSM
approval is first obtained on a case-by-case basis, (3) use of U.S.
Natural Resource Conservation Service (NRCS, formerly the Soil
Conservation Service) soil mapping units and productivity indices
whenever possible, rather than soil series, to develop technical
productivity standards, (4) use of North Dakota agricultural annual
county cropland yields to develop a correction factor for climatic
variability, (5) use of a county-wide correction factor in conjunction
with the NRCS yield information to adjust for climatic yield conditions
on land reclaimed for use as cropland or prime farmland, (6) submission
of aerial photos of areas used to develop standards, (7) submission of
maps which identify either the locations of sampling transects or the
sampling areas and number of randomly located sample units per area,
(8) submission of cover data in tabular form showing composition by
species, using absolute cover values with relative cover submitted to
aid in data interpretation, (9) submission of production data by growth
form, and (10) clarification that actual sample means must be used in
formulas that determine sample size when measuring success of
revegetation for bond release.
The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1)
require that standards for success of revegetation and statistically
valid sampling techniques for measuring success of revegetation shall
be selected by the regulatory authority and included in an approved
regulatory program.
Because the proposed revisions identified above clarify and
generally improve North Dakota's revegetation document, the Director
finds that these proposed revisions are no less effective than the
Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1). The
Director approves the proposed revisions.
2. Substantive Revisions to North Dakota's Revegetation Document
Proposed in Response to Required Amendments
a. Chapter II, Section F, countable trees and shrubs. At 30 CFR
934.16(b), OSM required that North Dakota revise its revegetation
document or otherwise amend its program to require that at least 80
percent of the trees and shrubs counted to determine revegetation
success have been in place for at least 60 percent of the 10-year
period of revegetation responsibility (Finding No. 26.a, 57 FR 807,
821, January 9, 1992).
North Dakota proposed to revise Chapter II, Section F, concerning
reclaimed lands developed for use as woodland, to require for fourth-
stage bond release that the permittee demonstrate that 80 percent of
the total number of trees and shrubs planted have been in place for 60
percent of the liability period. In addition, North Dakota recommended
the use of permanent quadrats in each woodland community to document
the time in place requirement and required that the permittee provide
documentation to verify that not more than 20 percent of the number of
trees and shrubs present at year 4 have been replanted.
The Federal regulations at 30 CFR 816.116(b)(3)(ii) and
817.116(b)(3)(ii) require, for areas to be developed for fish and
wildlife habitat, recreation, shelter belts, or forest products, that
at the time of bond release, at least 80 percent of the trees and
shrubs used to determine success shall have been in place for 60
percent of the applicable minimum period of responsibility.
The Director finds that North Dakota's revisions of Chapter II,
Section F, concerning time in place revegetation success standards for
trees and shrubs on land reclaimed for use as woodland, are no less
effective than the Federal regulations at 30 CFR 816.116(b)(3)(ii) and
817.116(b)(3)(ii). The Director approves these proposed revisions and
removes the required amendment at 30 CFR 934.16(b).
b. Chapter II, Sections F and H, ground cover. At 30 CFR 934.16(c),
OSM required that North Dakota revise its revegetation document to
require that evaluations of ground cover success be valid at the 90
percent confidence level (Finding No. 3, 54 FR 10141, 10142, March 10,
1989).
North Dakota proposed to revise Chapter II, Section F, concerning
reclaimed lands developed for use as woodland, to require that ground
cover must be equal to or greater than 90 percent of the approved
standard with 90 percent statistical confidence. North Dakota also
proposed to revise Chapter II, Section H, concerning reclaimed lands
developed for use as fish and wildlife habitat/grassland, to require
that ground cover must be equal to or greater than that of the approved
reference area or standard with 90 percent statistical confidence.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require that the sampling techniques for measuring success of
revegetation shall use a 90 percent statistical confidence interval
(i.e., one-sided test with a 0.10 alpha error).
The Director finds that North Dakota's revisions of Chapter II,
Sections F and H, concerning the requirement to demonstrate success of
ground cover with 90 percent statistical confidence, are no less
effective than the Federal regulations at 30 CFR 816.116(a)(2) and
817.116(a)(2). The Director approves these proposed revisions and
removes the required amendment at 30 CFR 934.16(c).
c. Chapter II, Sections F and G, woody plant stocking. At 30 CFR
934.16(d), OSM required that North Dakota revise its revegetation
document or otherwise amend its program to require that evaluations of
the success of woody plant stocking be valid at the 90 percent
confidence level (Finding No. 4, 54 FR 10141, 10142, March 10, 1989).
[[Page 36215]]
North Dakota proposed to revise Chapter II, Section F, concerning
reclaimed lands developed for use as woodland, to require that the
number of woody plants must be equal to or greater than the stocking of
live woody plants of the same life form of the approved standard with
90 percent statistical confidence. North Dakota proposed to revise
Chapter II, Section G, concerning reclaimed lands developed for use as
shelterbelts, to require that density and vigor must be equal to or
greater than that of the approved standard. North Dakota did not revise
this section to require that density be demonstrated with 90 percent
statistical confidence. However, Chapter III, Section D, of North
Dakota's revegetation document requires that density of woody
vegetation be measured either by direct count of all vegetation or by
the density quadrat sampling method. North Dakota proposed to revise
Chapter III, Section D, to require that, when using the quadrat
sampling method, enough samples must be taken to demonstrate that the
number of woody plants established equals or exceeds the approved
standard with 90 percent statistical confidence. The methods provided
in Chapter III apply to all demonstrations of woody plant density,
regardless of land use. Therefore, the revegetation document requires,
for land reclaimed for use as shelterbelts, verification of woody plant
density by direct count or by sampling with 90 percent statistical
confidence.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require that the sampling techniques for measuring success of
revegetation shall use a 90 percent statistical confidence interval
(i.e., one-sided test with a 0.10 alpha error).
The Director finds that North Dakota's revisions of Chapter II,
Section F and Chapter III, Section D, concerning the requirement to
demonstrate success of woody plant density with 90 percent statistical
confidence, are no less effective than the Federal regulations at 30
CFR 816.116(a)(2) and 816.116(a)(2). The Director approves these
proposed revisions and removes the required amendment at 30 CFR
934.16(d).
d. Chapter II, Sections F and H, Revegetation success measurement
period. At 30 CFR 934.16(e), OSM required that North Dakota revise its
revegetation document or otherwise amend its program to require that
revegetation success standards for woodlands and fish and wildlife
habitats be met for at least the last two consecutive years of the
revegetation responsibility period (Finding No. 26.b, 57 FR 807, 822,
January 9, 1992).
North Dakota proposed to revise Chapter II, Sections F and H,
concerning reclaimed lands developed for use as, respectively, (1)
woodland and (2) fish and wildlife habitat using annual crops, to
require that revegetation success must be measured during the last two
years, rather than the final year, of the responsibility period.
The Federal regulations at 30 CFR 816.116(b)(3)(ii) and
817.116(b)(3)(ii) require that trees and shrubs counted in determining
success of revegetation shall have been in place for not less than two
growing seasons.
The Director finds that North Dakota's revisions of Chapter II,
Sections F and H, concerning the requirement to measure revegetation
success during the last two years of the responsibility period, are no
less effective than the Federal regulations at 30 CFR 816.116(b)(3)(ii)
and 817.116(b)(3)(ii). The Director approves these proposed revisions
and removes the required amendment at 30 CFR 934.16(e).
e. Chapter II, Sections F and G, revegetation success standards for
shelterbelts. At 30 CFR 934.16(f), OSM required that North Dakota
revise its revegetation document or otherwise amend its program to
include tree and shrub stocking and vegetative ground cover success
standards for all types of shelterbelts and clarify that trees and
shrubs must meet time-in-place requirements no less than those
established in 30 CFR 816.116(b)(3)(ii) (Finding No. 26.a, 57 FR 807,
821, January 9, 1992). As discussed below, the Director finds that
North Dakota's proposed revisions to Chapter II, Sections F and G,
concerning revegetation success standards for shelterbelts, are no less
effective than the Federal regulations at 30 CFR 816.116(b)(3) and
817.116(b)(3), and removes the required amendment at 30 CFR 934.16(f).
i. Chapter II, Sections F and G, requirements for determining
revegetation success on lands developed for use as shelterbelts. North
Dakota proposed to revise Chapter II, Section F, concerning reclaimed
lands developed for use as woodland, to delete all discussion of
shelterbelts so that Section F is applicable only to woodland.
Requirements for determination of revegetation success on lands
developed for use as shelterbelts are included in Chapter II, Section
G.
North Dakota proposed to revise Chapter II, Section G to define
shelterbelts as a strip or belt of trees or shrubs planted by man in or
adjacent to a field or next to a farmstead, feedlot, or road, and
synonymous with windbreak. North Dakota proposed to add the requirement
that the stocking of trees and shrubs normally follow current standards
and specifications developed by the NRCS for farmstead and field
windbreaks in North Dakota, but also provided for allowance of stocking
standards specified by the State Game and Fish Department or the State
Forest Service.
North Dakota also proposed to revise Section G to specify that,
prior to final bond release, the permittee must demonstrate in the last
two years of the liability period that density and vigor are equal to
or greater than that of the approved standard, erosion is adequately
controlled, and that at least 80 percent of the trees and shrubs have
been in place for at least 60 percent of the liability period. In
addition, North Dakota requires an evaluation of the diversity,
seasonality, and regenerative capacity of the shelterbelt based on the
species stocked and planting arrangements. Regarding the time in place
standard, North Dakota proposed to require that the permittee provide a
worksheet of each shelterbelt which lists annual replantings of each
species and that documentation may be made by tagging or marking with
paint, by photographic records, or by preservation of sales receipts
from nurseries.
The Federal regulations at 30 CFR 816.116(b)(3) (i) through (iii)
and 817.116(b)(3) (i) through (iii) require, in part, that success of
revegetation of shelterbelts be determined on the basis of tree and
shrub stocking and vegetative ground cover and include the requirements
that (1) permit specific or programwide minimum stocking and planting
arrangements shall be specified by the regulatory authority on the
basis of local and regional conditions and after consultation with and
approval by the State agencies responsible for the administration of
forestry and wildlife programs, (2) trees and shrubs counted in
determining such success shall be healthy and have been in place for
not less than two growing seasons, (3) at least 80 percent of the trees
and shrubs used to determine such success shall have been in place for
60 percent of the applicable minimum period of responsibility, and (4)
vegetative ground cover shall not be less than that required to achieve
the approved postmining land use.
The Director finds that North Dakota's revisions of Chapter II,
Sections F and G, concerning the requirements to determine revegetation
success on reclaimed lands developed for use as shelterbelts, are no
less effective than the Federal regulations at 30 CFR 816.116(b)(3) (i)
through (iii) and 817.116(b)(3) (i) through (iii). The
[[Page 36216]]
Director approves these proposed revisions.
ii. Chapter II, Section G, replacement and nonreplacement
shelterbelts. North Dakota proposed to revise Chapter II, Section G to
(1) clarify that the standards in Section G apply to all shelterbelts
that are specified in the reclamation plan as a postmining land use or
as otherwise required as part of the approved permit, and (2) delete
from Section G the discussion of ``replacement'' and ``nonreplacement''
shelterbelts and their associated success standards. North Dakota
explained in the cover letter to its May 11, 1995, revisions, that the
intent of the provision for shelterbelts otherwise required as part of
the approved permit was to give North Dakota the flexibility to
require, by permit condition, that certain shelterbelts not proposed as
part of the postmining land use may be required to meet the standards
in Section G.
As discussed Finding No. e.i above, North Dakota has revised
Chapter II, Sections F and G to require revegetation success standards
for shelterbelts that are no less effective than the Federal
regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3).
The allowance for North Dakota to require, as a condition of permit
approval, shelterbelts that meet the requirements proposed in Chapter
II, Section G, has no counterpart in the Federal regulations. North
Dakota's proposal to require shelterbelts (with the requisite
performance standards for demonstrating success of revegetation) as a
condition of permit approval is not inconsistent with the Federal
regulations at 30 CFR 773.15(c) and 773.17, concerning permit approval
and permit conditions.
Because North Dakota has proposed to require the same success
standards for all areas designated with the postmining land use of
shelterbelts, the Director finds that these proposed revisions in
Chapter II, Section G are no less effective than the requirements for
shelterbelts in the Federal regulations at 30 CFR 816.116(b)(3) and
817.116(b)(3), and approves the proposed revisions.
f. Chapter II, Section H, revegetation success standards for fish
and wildlife habitat. At 30 CFR 934.16(g), OSM required that North
Dakota revise its revegetation document or otherwise amend its program
to require that vegetative ground cover on lands reclaimed to fish and
wildlife habitat equal at least 90 percent of the success standard
(Finding No. 7.a, 54 FR 10141, 10142, March 10, 1989).
North Dakota proposed to revise Chapter II, Section H, concerning
reclaimed lands developed for use as fish and wildlife habitat
according to vegetation type, to require that (1) for woodland and
shelterbelts, the permittee address the requirements specified in,
respectively, Sections F and G (Section F requires that ground cover on
the reclaimed area equal or exceed 90 percent of the approved standard;
Section G requires that density and vigor equal or exceed the approved
standard and erosion be adequately controlled); (2) for grassland, the
ground cover must be equal to or greater than the approved standard;
and (3) for wetland, vegetation zones and dominant species must be
equal to those of the approved standard. North Dakota already required
in Section H, for annual crops, a demonstration that the height of the
standing grain crop or residual cover is equal to or greater than the
approved standard.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require that the standards for success for ground cover, production, or
stocking shall be considered equal to the approved success standard
when they are not less than 90 percent of the success standard.
The Director finds that North Dakota's revisions of Chapter II,
Section H, concerning the requirement that success standards for fish
and wildlife habitat equal or exceed at least 90 percent of the
approved standards for each vegetation type, are no less effective than
the Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). The
Director approves the proposed revisions and removes the required
amendment at 30 CFR 934.16(g).
g. Chapter II, Sections F and H, consultation and approval by State
forestry and wildlife agencies. At 30 CFR 934.16(h), OSM required that
North Dakota submit documentation that it has obtained the concurrence
of the appropriate State forestry and wildlife agencies with the
revegetation success standards for lands reclaimed to fish and wildlife
habitat, recreation, shelterbelt, or woodland uses, or shall submit
revisions to its revegetation document and North Dakota Administrative
Code 69-05.2-22-07 or otherwise amend its program to require such
concurrence on a permit specific basis (Finding No. 8, 54 FR 10141,
10143, March 10, 1989).
North Dakota submitted letters of concurrence from the North Dakota
Forest Service and the North Dakota Game and Fish Department, dated,
respectively, April 21, and May 19, 1989. In these letters, the State
agencies concurred with the standards for woodland and fish and
wildlife habitat in Chapter II, Sections F and H, of North Dakota's
revegetation document. In its response to OSM's September 9, 1994,
issue letter, North Dakota explained that these 1989 concurrence
letters are still applicable because, although the original
revegetation document included shelterbelts as part of the woodland
section, the stocking and planting arrangements and success standards
for woodland and fish and wildlife habitat have not been revised since
the letters were obtained. North Dakota refers the permittee to
standards approved by the NRCS for shelterbelts (see Finding No. 2.e.i
above for a discussion of the requirements for shelterbelts).
The Federal regulations at 30 CFR 816.116(b)(3)(i) and
817.116(b)(3)(i) require, for areas to be developed for fish and
wildlife habitat, recreation, shelterbelts, or forest products, that
minimum stocking and planting arrangements shall be specified by the
regulatory authority on the basis of local and regional conditions and
after consultation with and approval by the State agencies responsible
for the administration of forestry and wildlife programs.
Based on the 1989 letters of concurrence from the North Dakota
Forest Service and the North Dakota Game and Fish Department, the
Director finds that North Dakota's revegetation document is no less
effective than the Federal regulations at 30 CFR 816.116(b)(3)(i) and
817.116(b)(3)(i), and removes the required amendment at 30 CFR
934.16(h).
h. Appendix A, augmentation practices. At 30 CFR 934.16(i), OSM
required that North Dakota revise the definition of augmentation
practices in its revegetation document to be consistent with 30 CFR
816.116(c)(4) (Finding No. 9, 54 FR 10141, 10143, March 10, 1989).
In Appendix A, North Dakota proposed to delete the existing
definition of ``augmentation practices'' (which meant those practices
used to reestablish or replace vegetation or make temporary
improvements to obtain bond release) and replace it with a definition
of ``augmentation practices'' meaning those practices which exceed the
commonly used management practices on similar unmined lands in the
surrounding area. North Dakota also revised Appendix A to state that
the use of an augmentation practice on reclaimed lands will reinitiate
the liability period and to provide examples of augmentation practices
including (1) fertilization or irrigation on cropland, hayland, and
pastureland, that is not used as specified in the management plan or
that is used in excessive
[[Page 36217]]
amounts (based on soil tests and historic use), (2) fertilization or
irrigation used to boost production on native grassland, or on
grasslands in fish and wildlife habitat, (3) reseeding native
grasslands, pasturelands, or grasslands in fish and wildlife habitat to
reintroduce the desired species, (4) extensive replanting, plugging, or
addition of soil containing propagules on wetlands, (5) extensive
replanting in woodlands or shelterbelts, (6) any significant surface
modifications which redisturb the topsoil, and (7) any change in land
use that requires a seed mix modification to support the intended land
use.
The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)
provide for the approval of selective husbandry practices, excluding
augmented seeding, fertilization, or irrigation, that would not extend
the period of responsibility for revegetation success and bond
liability, if such practices can be expected to continue as part of the
postmining land use or if discontinuance of the practices after the
liability period expires will not reduce the probability of permanent
revegetation success. Approved practices shall be normal husbandry
practices within the region for unmined lands having land uses similar
to the approved postmining land use of the disturbed area.
The Director finds that North Dakota's proposed definition of
augmentation practices is consistent with the Federal regulations
concerning normal husbandry practices at 30 CFR 816.116(c)(4) and
817.116(c)(4). The Director approves the proposed revisions and removes
the required amendment at 30 CFR 934.16(i).
i. Chapter II, Section C, NRCS consultation regarding methods for
measuring productivity on prime farmlands and approval for yield
determination methods on prime farmlands. At 30 CFR 934.16 (w) and (x),
OSM required that North Dakota revise its revegetation document to
submit evidence of, respectively, (1) NRCS (formerly the Soil
Conservation Service) consultation regarding the approved methodologies
for measuring productivity on prime farmlands and (2) NRCS concurrence
regarding the approved methods for determining yield standards for
prime farmlands (Finding Nos. 28.a and b, 57 FR 807, 823, January 9,
1992).
North Dakota submitted with its revised amendment a December 15,
1994, letter from the NRCS in which the NRCS stated that it had
reviewed and concurred with standards and sampling procedures for
proving reclamation success on prime farmlands that are outlined in
North Dakota's revegetation document. The NRCS identified its Soil Tech
Note 2, dated 1987, as the most current reference guideline concerning
productivity indexes and agreed that the sampling designs are adequate.
The NRCS also stated that the use of small grains to prove production
is applicable in the area because corn or other deep rooting crops are
not generally grown in west and west central North Dakota.
The Federal regulation at 30 CFR 823.15(b)(2) requires, in part,
that prime farmland soil productivity shall be measured using
statistically valid sampling techniques that are approved by the
regulatory authority in consultation with the NRCS. The Federal
regulation at 30 CFR 823.15(b)(6) requires that the reference crop on
which restoration of soil productivity is proven shall be selected from
the crops most commonly produced on the surrounding prime farmland and
that where row crops are the dominant crops grown on prime farmland in
the area, the row crop requiring the greatest rooting depth shall be
chosen as one of the reference crops. The Federal regulation at 30 CFR
823.15(b)(7) requires the NRCS concurrence regarding the approved
methods for determining yield standards for prime farmlands.
Based on the December 15, 1994, NRCS letter to North Dakota, the
Director finds that North Dakota's revegetation document revisions are
no less effective than the Federal regulations at (1) 30 CFR 823.15(b),
concerning consultation and concurrence with the NRCS for prime
farmlands, and (2) 30 CFR 823.15(b)(6), concerning the use of small
grains (spring wheat) rather than corn or other deep rooting crops to
prove production. The Director removes the required amendments at 30
CFR 934.16 (w) and (x).
3. Substantive Revisions to North Dakota's Revegetation Document
Proposed as State Initiatives
a. Chapter II, Section C, demonstration of productivity prior to
bond release on prime farmland. North Dakota proposed to revise Chapter
II, Section C, to require for third-stage (equivalent to the Federal
program's phase II) bond release on prime farmland, that productivity
must be equal to or greater than that of the approved reference area or
standard with 90 percent statistical confidence. This is identical to
the requirement for third-stage bond release on prime farmland in North
Dakota's rule at North Dakota Administrative Code (NDAC) 69-05.2-22-
07(3)(c). The revegetation document at Chapter 11, Section C and North
Dakota's rule at NDAC 69-05.2-22-07(4)(d) require for final or fourth-
stage (equivalent to the Federal program's phase III) bond release on
prime farmland that productivity equal to or greater than the standard
must be demonstrated in each of the last 3 consecutive growing seasons
of the responsibility period. In addition, North Dakota's rule at NDAC
69-05.2-26-05(3)(c) requires that the measurement period for
determining crop production is that specified in NDAC 69-05.2-22-
07(4)(d) for fourth-stage bond release on prime farmland described
above).
The Federal regulations at 30 CFR 800.40(c)(2) require that no part
of a phase II bond shall be released until soil productivity for prime
farmland has returned to the equivalent levels of yield as nonmined
land of the same soil type in the surrounding area under equivalent
management practices as determined from the soil survey performed
pursuant to Section 507(b)(16) of the Act and 30 CFR Part 823. The
Federal regulations at 30 CFR 823.15(b)(3) require that the measurement
period for determining average annual crop production (yield) shall be
a minimum of 3 crop years prior to release of the operator's
performance bond. The Federal regulations at 30 CFR 823.15(b)(5)
require that restoration of soil productivity shall be considered
achieved when the average yield during the measurement period equals or
exceeds the average yield of the reference crop established for the
same period for nonmined soils of the same or similar texture or slope
phase of the soil series in the surrounding area under equivalent
management practices. Therefore, the Federal regulations at 30 CFR
800.40, concerning phase II bond release on prime farmland, and 30 CFR
823.15(b), concerning the measurement for success of productivity on
prime farmland prior to bond release, clearly require a successful
demonstration of productivity using 3 years of data prior to phase II
bond release (equivalent to North Dakota's third-stage bond release).
North Dakota's existing rule at NDAC 69-05.2-22-07(3)(c) and
proposed revision in Chapter II, Section C in its revegetation document
require that a permittee demonstrate productivity on prime farmland at
third-stage bond release. However, North Dakota's existing rules at
NDAC 69-05.2-22-07(4)(d) and 69-05.2-26-05(3)(c) and Chapter II,
Section C in its revegetation document require that the 3-year
measurement period for making a demonstration of productivity occur
prior to fourth-stage bond release. The
[[Page 36218]]
Director finds that North Dakota's rules at NDAC 69-05.2-26-05(3)(c)
and 69-05.2-22-07(3)(c), and its revegetation document at Chapter II,
Section C, concerning the requirement for third-stage bond release on
prime farmland, to the extent that they do not require the permittee to
demonstrate the success of productivity on prime farmland with 3 years
of data, are less effective than the Federal regulations at 30 CFR
800.40 and 823.15. The Director approves the revision proposed in
Chapter II, Section C of the revegetation document that requires prime
farmland productivity to be equal to or greater than that of the
approved reference area or standard with 90 percent statistical
confidence prior to third-stage bond release. However, the Director
also requires that North Dakota further revise Chapter II, Section C in
the revegetation document and its rules at NDAC 69-05.2-26-05(3)(c) and
69-05.2-22-07(3)(c) to require that the permittee demonstrate
restoration of productivity on prime farmland using 3 crop years at
third-stage bond release. OSM recommends that North Dakota then revise
NDAC 69-05.2-22-07(4)(d) to delete the fourth-stage bond release
requirement on prime farmland for successful productivity during the
last 3 consecutive growing seasons.
b. Chapter II, Section E, demonstration of diversity, seasonality,
and permanence prior to fourth-stage bond release on tame pastureland.
North Dakota proposed to revise Chapter II, Section E, to remove
existing discussions concerning the evaluation of reclaimed vegetation
for diversity, seasonality, and permanence on areas developed for use
as tame pastureland. However, North Dakota also proposed to revise
Chapter II, Section E to require that (1) all species used in
determining ground cover must be perennial species not detrimental to
the land use and (2) all species included in the approved seed mixture
must be present at the time of final bond release.
The Federal regulations at 30 CFR 816.111(a)(1) and 817.111(a)(1)
require the permittee to establish on regraded areas and on all other
disturbed areas (except water areas and surface areas of roads that are
approved as part of the postmining land use) a vegetative cover that is
in accordance with the approved permit and reclamation plan and that is
diverse, effective, and permanent. Additionally, the Federal
regulations at 30 CFR 816.111(b)(2) and 817.111(b)(2) require that the
reestablished plant species have the same seasonal characteristics of
growth as the original vegetation. Finally, the Federal regulations at
30 CFR 816.116(a) and 817.116(a) require that the success of
revegetation shall be judged on the effectiveness of the vegetation for
the approved postmining land use, the extent of cover compared to the
cover occurring in natural vegetation of the area, and the general
requirements of Section 816.111.
Because North Dakota proposed that only perennial species can be
used in determining the success of ground cover, North Dakota has
proposed in its revegetation document, in effect, to require an
evaluation of permanence. North Dakota also proposed that all species
included in the approved seed mixture must be present at the time of
final bond release. Because the approved seed mix is designed to attain
the diversity and seasonality required to support the approved
postmining land use, North Dakota has proposed in its revegetation
document, in effect, to require an evaluation of diversity and
seasonality on land reclaimed for use as tame pastureland. Therefore,
although North Dakota proposed deletion of existing discussions
concerning diversity, seasonality, and permanence on tame pastureland,
it also proposed to include requirements for evaluation of diversity,
seasonality, and permanence that are consistent with the Federal
regulations at 30 CFR 816.111(a)(1) and (b)(2), 817.111(a)(1) and
(b)(2), 816.116(a), and 817.116(a).
Therefore, the Director finds that North Dakota's proposed
revisions in Chapter II, Section E of the revegetation document,
concerning the evaluation of diversity, seasonality, and permanence on
land reclaimed for use as tame pastureland, are no less effective than
the Federal regulations at 30 CFR 816.111 (a)(1) and (b)(2), 817.111
(a)(1) and (b)(2), 816.116(a), and 817.116(a), and approves the
proposed revisions.
c. Chapter II, Section E, development of a productivity standard on
tame pastureland using 50 percent of the yield of a suitability group
or soil series most similar to an unrated soil series. North Dakota
proposed to revise Chapter II, Section E to allow estimated yield
values to be used for those soil groups that are not suited for pasture
or hayland. North Dakota proposed that these yield values be derived
using 50 percent of the yield of the suitability group or soil series
most similar to them. Fifty percent of the yield was selected, based on
NRCS recommendations, since these soils are rated non-suitable due to
machinery limitations and erosion rather than productivity potential.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require that revegetation success standards include criteria
representative of unmined lands to evaluate the appropriate vegetation
parameters of ground cover, production, or stocking.
In response to OSM's September 9, 1994, issue letter, North Dakota
submitted a December 15, 1994, NRCS letter in which the NRCS stated
that it has recommended estimating productivity values for soil groups
not suited for pasture or hayland by using 50 percent of the yield of
the suitability group or soil series most similar to the unrated one.
The NRCS further stated that most of these areas are steep, shallow to
bedrock, or strongly saline and that there are minimal acreage of these
areas in the coal mining region. Finally, the NRCS stated that although
it has not compiled data to support using the 50 percent productivity
level, it believes that using 50 percent of the productivity level of
similar nonrated soils adequately describes production on these sites.
Based on the December 15, 1994, NRCS letter to North Dakota, the
Director finds that North Dakota's proposed method for estimating
yields on unrated soils reclaimed for use as tame pastureland is no
less effective than the Federal regulations at 30 CFR 816.116(a)(2) and
817.116(a)(2) and approves the proposed revision.
d. Chapter II, Section H, classification of wetland vegetation on
reclaimed lands developed for use as fish and wildlife habitat. North
Dakota proposed to revise Chapter II, Section H, concerning wetlands on
land reclaimed for use as fish and wildlife habitat, to delete the
State wetland classification system of temporary, seasonal, semi-
permanent, and permanent, and to add the classification system for
premining assessments described by Stewart and Kantrud (Classes I
through VI). In addition, North Dakota proposed to add the requirement
that the total acreage of postmine wetland, including Class I and II's,
prior to final bond release for the mine must equal the total premine
acreage. North Dakota did not propose to revise any of the standards
applicable to evaluating the success of reclaimed wetland vegetation.
The Federal regulations at 30 CFR 816.111, 816.116, 817.111, and
817.116, concerning requirements for success of revegetation, including
requirements for revegetation success on land reclaimed for use as fish
and wildlife habitat, do not include requirements specific to wetland
vegetation. North Dakota's proposed revisions concerning wetland
classification and replacement go beyond the requirements of, and are
not inconsistent with, the Federal
[[Page 36219]]
regulations at 30 CFR 816.111, 816.116, 817.111, and 817.116.
Therefore, the Director finds that North Dakota's proposed
revisions in Chapter II, Section H of the revegetation document,
concerning wetlands on land reclaimed for use as fish and wildlife
habitat, are no less effective than the Federal regulations at 30 CFR
816.111, 816.116, 817.111, and 817.116, and approves the proposed
revisions.
e. Chapter II, Section I, requirements for revegetation success on
reclaimed lands developed for use as recreation, residential,
industrial, and commercial. North Dakota proposed to revise its
revegatation document by creating a new Section I in Chapter II.
Proposed Section I includes the requirements for success of
revegatation on lands reclaimed for use as recreation, residential, and
industrial and commercial. North Dakota proposed to require on areas
developed for recreation, residential, and industrial and commercial
land uses, for both third and fourth-stage bond release, establishment
of vegetation sufficient to control erosion and documentation showing
that the areas are not contributing suspended solids to streamflow or
runoff outside the permit area. North Dakota proposed (1) a technical
standard for establishment of revegetation, measured with a point
frame, of either 73 percent total cover based on basal hits or 83
percent total cover based on first hits, (2) the requirement that live
cover included in the standard must be perennial species not
detrimental to the land use, and (3) that either standard must be
achieved with 90 percent statistical confidence. North Dakota's rules
at NDAC 69-05.2-22-07(4)(j) require that within 2 years after
completion of grading or soil replacement, the ground cover of living
plants must not be less than required to control erosion on areas to be
developed for recreation, water areas, residential, or industrial and
commercial uses.
For areas developed for residential, or industrial and commercial
land uses, the Federal regulations at 30 CFR 816.116(b)(4) and
817.116(b)(4) require that the vegetative ground cover shall not be
less than that required to control erosion.
For areas developed for use as recreation, the Federal regulations
at 30 CFR 816.116(b)(3) (i) through (iii) and 817.116(b)(3) (i) through
(iii) require, in part, that success of revegetation be determined on
the basis of tree and shrub stocking and vegetative ground cover and
include the requirements that (1) permit specific or programwide
minimum stocking and planting arrangements shall be specified by the
regulatory authority on the basis of local and regional conditions and
after consultation with and approval by the State agencies responsible
for the administration of forestry and wildlife programs, (2) trees and
shrubs counted in determining such success shall be healthy and have
been in place for not less than two growing seasons, (3) at least 80
percent of the trees and shrubs used to determine such success shall
have been in place for 60 percent of the applicable minimum period of
responsibility, and (4) vegetative ground cover shall not be less than
that required to achieve the approved postmining land use.
The Director finds that proposed Chapter II, Section I in North
Dakota's revegetation document, with respect to areas developed for
residential or industrial and commercial land uses, is no less
affective than the Federal regulations at 30 CFR 816.116(b)(4) and
817.116(b)(4).
However, on areas developed for a recreation land use, neither the
North Dakota rule nor its revegetation document require revegetation
success standards for tree and shrub stocking and vegetative ground
cover based on consultation with and approval from the State agencies
responsible for the administration of forestry and wildlife programs.
Therefore, with respect to areas developed for a recreation land use,
the Director finds that the North Dakota rules at NDAC 69-05.2-22-
07(4)(j) and Chapter II, Section I in the revegetation document are
less effective than the Federal regulations at 30 CFR 816.116(b)(3) and
817.116(b)(3). With the exception that Chapter II, Section I does not
include complete requirements for measuring the success of revegetation
on land reclaimed for use as recreation, the Director approves the
revegetation success standards and sampling techniques proposed by
North Dakota in Chapter II, Section I of its revegetation document for
areas developed for recreation, residential, or industrial and
commercial land uses. With respect to areas developed for a recreation
land use, the Director requires that North Dakota (1) revise its rule
at NDAC 69-05.2-22-07(4)(j) and Chapter II, Section I in its
revegetation document to require tree and shrub stocking standards that
(a) have been approved by the State agencies responsible for forestry
and wildlife programs and (b) meet all other requirements for tree and
shrub standards included in 30 CFR 816.116(b)(3), and (2) provide
evidence of consultation with and approval from the State agencies
responsible for forestry and wildlife programs for the ground cover
standard, concerning a recreation land use, proposed in Chapter II,
Section I.
f. Chapter III, Section C, sample design and sample size adequacy.
North Dakota proposed to revise Chapter III, Section C, to (1) require
that the determination of an adequate sample size include an initial
sampling to obtain estimates of the mean and variance of each site type
or reference area; (2) specify a minimum number of samples when hand
sampling to determine (a) total production and cover on native
grassland and tame pastureland, (b) production on cropland, or (c)
total cover; and (3) require that the mean and variance derived from
the initial sampling be used to calculate adequate sample size using
(a) a two-stage sampling procedure, (b) a procedure using the standard
error as a percentage of the mean, or (c) a procedure described for
comparing two different populations (e.g., reference area and reclaimed
area). Each of these procedures for determining sample size are based
on either a normal or binomial distribution of the population when
parametric statistics are used to evaluate the revegetation data
collected from the reclaimed area.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require that the sampling techniques for measuring revegetation success
shall use a 90-percent statistical confidence interval (i.e., one-sided
test with a 0.10 alpha error).
North Dakota's proposed revisions of Chapter III, Section C,
concerning sample design, are consistent with the Federal regulations
at 30 CFR 816.116(a)(2) and 817.116(a)(2) in that North Dakota has
clearly required that all sampling techniques shall use a 90 percent
statistical confidence level.
North Dakota also proposed to revise Chapter III, Section C,
concerning sample design to state that, in some cases, the sample size
derived from a formula may appear to be unreasonably large due to non-
parametric or non-normal distributions and that North Dakota will
evaluate such cases and establish a maximum sample size.
The distribution of (1) vegetative cover in the arid west and (2)
shrub density throughout the west often do not exhibit normal or
binomial characteristics, and the use of non-parametric statistics may
be appropriate for evaluation of the revegetation data collected from
these reclaimed environment. Because North Dakota's proposed
requirement that all sampling techniques use a 90 percent statistical
confidence level applies whether
[[Page 36220]]
parametric or non-parametric statistics are used to evaluate the data
collected, North Dakota's provision concerning non-parametric
statistics is consistent with the requirements for measuring for
success of revegetation with 90 percent statistical confidence in the
Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2).
Therefore, the Director finds that North Dakota's proposed
revisions of Chapter III, Section C in its revegetation document,
concerning sampling design, are no less effective than the Federal
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2), and approves the
proposed revisions.
g. Chapter III, Section D, the sampling procedures allowed for
demonstration of productivity of annual crops on cropland and prime
farmland. North Dakota proposed to revise Chapter III, Section D, to
provide methods for the demonstration of production on areas reclaimed
for production of annual crops (cropland and prime farmland). North
Dakota proposed to allow the use of (1) entire field harvest; (2)
combined sampling, where sampling units or strips must be distributed
throughout the entire field and the number of strips needed must be
determined using a sample adequacy formula that reflects 90 percent
statistical confidence; (3) hand sampling, which are limited to areas
where the cropland reference area standard or the NRCS cropland
technical standard with a control area used for climatic correction is
used, and where both the reclaimed and the reference or control areas
are hand sampled in the same manner (the number of samples needed must
be determined using a sample adequacy formula that reflects 90 percent
statistical confidence); or (4) representative strips.
With respect to the use of representative strips, North Dakota
proposed to require at least three representative strips of adequate
size must be established which must reflect the variability in soil
redistribution thickness, landscape forms, and reclamation age
occurring in the larger reclaimed areas they represent. In addition,
each strip must extend across the entire tract they represent and, to
the extent possible considering the above factors, should be equally
spaced across the entire tract. The total acreage of the representative
strips which must be cropped each year must, at a minimum, equal ten
percent of the entire reclaimed tract they represent. Separate
representative strips must be established for each landowner, unless
the landowner agrees that other representative strips having the same
characteristics are adequate to represent his or her reclaimed land. A
map showing the location of the strips must be approved by North Dakota
prior to final selection. North Dakota required that the methods used
to harvest the representative areas must reflect a 90 percent
statistical confidence interval and recommended that the representative
strips be entirely harvested to obtain a single yield value.
North Dakota also submitted a NRCS letter, dated December 15, 1994,
which documented NRCS consultation regarding the proposed sampling
techniques. The NRCS stated that it agreed that the sampling designs
were adequate, but recommended whole-field harvest to eliminate any
question of accuracy.
The Federal regulations at 30 CFR 816.116(a) (1) and (2) and
817.116(a) (1) and (2) require that statistically valid sampling
techniques be included in the approved program and that the sampling
techniques for measuring success shall use a 90-percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error). For
prime farmland, the Federal regulations at 30 CFR 823.15(b)(2) require
that soil productivity be measured on a representative sample or on all
of the mined and reclaimed area and that a statistically valid sampling
technique at a 90-percent or greater statistical confidence level shall
be used as approved by the regulatory authority in consultation with
the NRCS (formerly the Soil Conservation Service).
The Director finds that North Dakota's proposed methods for the
demonstration of production on areas reclaimed for production of annual
crops (cropland and prime farmland), including entire field harvest,
combined sampling, and hand sampling, Chapter III, Section D are no
less effective than the requirements of 30 CFR 816.116(a)(2) and
817.116(a)(2).
Because North Dakota (1) proposed criteria for establishment of
representative strips within the reclaimed area that should ensure that
the strips will be representative at a 90-percent statistical
confidence level of the total reclaimed prime farmland bond release
area (cropland and prime farmland), and (2) submitted evidence of
consultation with the NRCS regarding the demonstration of productivity
on prime farmland, the Director finds that the representative strips
method for the demonstration of production on areas reclaimed for
production of annual crops (cropland and prime farmland) is no less
effective than the requirements of 30 CFR 816.116(a)(2), 817.116(a)(2),
and 823.15(b)(2).
Based on the above discussion, the Director approves the proposed
sampling procedures allowed for demonstration of productivity of annual
crops on cropland and prime farmland in Chapter III, Section D of North
Dakota's revegetation document.
h. Chapter III, Section D, sample adequacy requirements for
demonstration of woody plant density. North Dakota proposed to revise
Chapter III, Section D in its revegetation document to require, when
using the quadrat sampling method to measure success of woody plant
density, that randomly placed quadrats be used to obtain density counts
and to recommend that permanent sampling plots be established within
each planting. North Dakota proposed to delete the requirement that
sampling of total density proceed until the coefficient of variation is
less than or equal to 20 percent, and add the requirements that enough
samples must be taken to (1) reflect the population mean with 90
percent statistical confidence and (2) demonstrate that the number of
woody plants established equals or exceeds the approved standard with
90 percent statistical confidence.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require, in part, that the sampling techniques for measuring success of
stocking shall use a 90-percent statistical confidence interval.
As discussed in Finding No. 2.c above, OSM is approving North
Dakota's proposed requirement that enough samples must be taken to
demonstrate that the number of woody plants established equals or
exceeds the approved standard with 90 percent statistical confidence.
The Director finds that the revisions proposed in Chapter III,
Section D, concerning the sampling procedure used to demonstrate the
success of woody plant density, are no less effective than the Federal
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) and approves the
proposed revisions.
i. Appendix A, reinforcement interseeding on native grassland as a
normal conservation practice. North Dakota proposed to revise Appendix
A, concerning normal conservation practices on lands reclaimed for use
as native grassland, to allow restricted reinforcement interseeding,
described below, to modify species composition or reestablish certain
species during establishment of the revegetated stand. North Dakota
referenced the NRCS July 14, 1989, Technical Note, ND-12 Rev., entitled
``Guidelines for Grass/Legume Stand Evaluation,'' and used this
guideline to develop the requirements
[[Page 36221]]
for an evaluation of species establishment and the need for
reinforcement interseeding.
North Dakota proposed to require a record of the frequency
measurement of the established plants and that the frequency of species
seeded must indicate that at least 50 percent of the seeded species are
becoming established. A single reinforcement interseeding may be made
prior to year 4 of the bond liability period. At year 4, the permittee
may evaluate the establishment of species. If the permittee can
demonstrate that the revegetated stand has not become established, one
more reinforcement interseeding would be allowed in the spring of year
5. North Dakota proposed to require that any interseeding after year 5
would restart the liability period.
The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)
allows the regulatory authority to select normal husbandry practices if
such practices are expected to continue as part of the postmining land
use or if discontinance of the practices after the liability period
expires will not reduce the probability of permanent revegetation
success. Such practices must be normal husbandry practices within the
region.
In response to OSM's September 9, 1994, issue letter, North Dakota
submitted a copy of the NRCS July 14, 1989, Technical Note, ND-12 Rev.
This document states that, in the case of weak or spotty stands,
reinforcement seeding or spot seeding should be considered during
evaluation of stand establishment. As set forth in Chapter II, Section
D of North Dakota's revegetation document, the revegetation stand would
have to meet the revegetation success standards for production, cover,
diversity, seasonality, and performance during the last 2 consecutive
years of the liability period. Therefore, the permittee would have to
demonstrate prior to bond release that discontinuance of interseeding
would not reduce the probability of permanent revegetation success.
Based on the NRCS document and North Dakota's proposal that only
one interseeding prior to year 4 of the 10 year liability period and
one conditional interseeding in year of the liability period would be
allowed, the Director finds that North Dakota's proposal for
reinforcement interseeding on reclaimed native grasslands is consistent
with the Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)
and approves it.
j. Appendix A, plantings of trees and shrubs on agricultural land
as a normal conservation practice. North Dakota proposed to revise the
discussion of normal conservation practices in Appendix A to include
the voluntary plantings of trees and shrubs on agricultural land at the
request of the landowner or to enhance fish and wildlife habitat as a
normal conservation practice.
There is no provision in the Federal program for the planting of
trees and shrubs on agricultural land at the request of the landowner,
as proposed by North Dakota. The Federal regulations at 30 CFR
816.97(h) and 817.97(h) and North Dakota's rule at NDAC 69-052-13-
08(5)(j) require that a permittee, when the postmining land use is
cropland, and where appropriate for crop-management practices,
intersperse the fields with trees, hedges, or fence rows throughout the
harvested area. The provision for voluntary planting of trees and
shrubs on agricultural land either at the landowner's request or to
enhance fish and wildlife habitat is not inconsistent with the Federal
regulations at 30 CFR 816.97(h) and 817.97(h) and North Dakota's rule
at NDAC 69-052-13-08(5)(j).
The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)
provide for the approval of selective husbandry practices that would
not extend the period of responsibility for revegetation success and
bond liability, if such practices can be expected to continue as part
of the postmining land use or if discontinuance of the practices after
the liability period expires will not reduce the probability of
permanent revegetation success. The term ``normal conservation
practice'' used by North Dakota in its revegetation document means the
same thing as the term ``normal husbandry practice'' used in the
Federal regulations.
The use of field windbreaks, or plantings of trees and shrubs on
agricultural land, is a common agricultural practice in North Dakota.
As discussed above, the planting of trees and shrubs to enhance fish
and wildlife habitat where appropriate for crop management on areas
with a postmining land use of cropland is recognized in the Federal
program as a desirable enhancement of an agricultural land use.
For these reasons, the Director finds that North Dakota's proposed
allowance in Appendix A for the planting of trees and shrubs on
agricultural land as a normal conservation practice is consistent with
the Federal regulations at 30 CFR 816.97(h), 816.116(c)(4), 817.97(h),
and 817.116(c)(4), and approves it.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the North Dakota program.
a. NRCS. On April 14, 1994, the U.S. NRCS responded with the
following comments (administrative record No. ND-U-09).
With respect to reference areas used to demonstrate success of land
reclaimed for use as native grassland, the NRCS commented that
[l]ong term ungrazed reference areas eventually may lose
integrity in representing characteristic native plant communities.
Such areas eventually tend to become invaded by Kentucky Blue grass,
excess litter accumulates, wood or other dominating overstory may
increase, and species diversity decreases. Grazing and/or fire
historically influenced the character of native prairie ecosystems.
North Dakota's rules at NDAC 69-05.2-01-02 define a ``reference
area'' to mean, in part, a land unit maintained under appropriate
management. North Dakota's revegetation document at Chapter II, Section
D includes the requirements for measuring success of revegetation on
areas reclaimed for use as native grassland. North Dakota requires that
the range condition of the reference area be similar to that of the
corresponding premine range site. North Dakota also recommends that,
because prior to mining disturbance a rancher may have used the land
more intensively than if the goal had been sustained yields for several
years, management practices which will maintain or improve the
condition of the reference area be used during the liability area and
that management of the reference area should be equivalent to that
required for the approved postmining land use of the permit area.
Therefore, because North Dakota's rules and revegetation document
require proper management of the reference area used to demonstrate
success of revegetation on lands reclaimed for use as native grassland,
the Director is not requiring that North Dakota further
[[Page 36222]]
revise the revegetation document in response to this comment.
With respect to production on land reclaimed for use as native
grazingland, the NRCS commented that
[NRCS] production values represent potential for given range
sites and may not be representative of the actual pre-mined yields.
Range condition would influence yields on both the reference area
and pre-mined area.
North Dakota's revegetation document at Chapter II, Section D
requires an evaluation of the range condition, for all range sites and
the reference area, according to the methodology specified by the NRCS.
And as discussed above, North Dakota requires proper management of the
reference area for attainment of the postmining land use; in addition,
the reference area must be representative of the geology, soil, slope,
and vegetation in the permit area. While the permittee may elect to use
either NRCS estimated yield values or actual yield values from the
reference area to determine a productivity standard, North Dakota
requires that the permittee demonstrate restoration of the production
potential of the soils in the permit area. For these reasons, the
Director is not requiring that North Dakota further revise its
revegetation document in response to these comments.
With respect to NRCS pasture and hayland yields, NRCS commented
that
[c]urrently, pasture and hayland yields are under evaluation for
revision. Some yields are apparently too high. Revisions will be
based on available research data.
North Dakota's revegetation document at Chapter II, Section E
requires the use of NRCS estimates yield figures for setting a
technical productivity standard by which the success of revegetation
will be measured on land reclaimed for use as pastureland. North Dakota
also states in its revegetation document at Chapter II, Section B,
concerning data sources, that when new data are published by the NRCS,
updated tables will be forwarded to the mining companies and OSM. The
permittee will therefore be using the most current NRCS estimated
yields to determine any technical standards used in demonstrating the
success of productivity on lands reclaimed for use as tame pastureland.
Where the permittee elects to use a reference area to determine the
productivity standard, the actual yield measurements will be used. For
these reasons, the Director is not requiring that North Dakota further
revise the revegetation document in response to this comment.
On May 22, 1995, the U.S. NRCS responded that it had no comments on
the revised proposed amendment (administrative record No. ND-U-19).
b. Other Federal agencies. The U.S. Mine Safety and Health
Administration (MSHA) responded on March 16, 1994, that the proposed
amendment did not conflict MSHA regulations (administrative record No.
ND-U-04).
The U.S. Fish and Wildlife Service responded on March 29, 1994, and
June 1, 1995, that (1) the proposed amendment was logical and
reasonable and (2) it did not anticipate any significant impacts to
fish and wildlife resources as a result of the proposed amendment
(administrative record Nos. ND-U-07 and ND-U-21).
The U.S. Bureau of Mines responded on April 11, 1994, that it had
no comments on the proposed amendment (administrative record No. ND-U-
08).
The U.S. Rural Economic and Community Development responded on May
23, 1994, that it had no comments on the proposed amendment
(administrative record No. ND-U-20).
The U.S. Agricultural Research Service, Northern Great Plains
Research Laboratory, responded on May 30, 1994, that it had no comments
on the proposed amendment (administrative record No. ND-U-22).
The U.S. Army Corps of Engineers responded on June 5, 1995, that it
found the proposed amendment to be satisfactory (administrative record
No. ND-U-24).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that North Dakota proposed to make in its
amendment pertain to air or water quality standards. Therefore, OSM did
not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. ND-U-03. EPA
responded on March 21, 1994, that it had no comments on the proposed
amendment (administrative record No. ND-U-06).
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
ND-U-03). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and additional requirements, North Dakota's proposed
amendment as submitted on February 17, 1994, and as revised and
supplemental with additional explanatory information on December 21,
1994, and May 11, 1995.
With the requirement that North Dakota further revise its rules
and/or the revegetation document, the Director approves, as discussed
in Finding No. 3.a, Chapter II, Section C, the requirements to
demonstrate the success of productivity prior to third-stage bond
release on land reclaimed for use as prime farmland, and Finding No.
3.e, Chapter II, Section I, the requirements to demonstrate the success
of revegetation on areas developed for recreation, residential, or
industrial and commercial land uses.
The Director approves, as discussed in: Finding No. 1, the proposed
revisions in the revegetation document not otherwise specifically
discussed, Finding Nos. 2.a. through 2.i, various revisions in the
revegetation document made in response to required amendments; Finding
No. 3.b, Chapter II, Section E, the required evaluation of reclaimed
vegetation for diversity, seasonality, and permanence on areas
developed for use as tame pastureland; Finding No. 3.c, Chapter II,
Section E, the use of estimated yields to develop a productivity
standard for soils that are not rated for use as pastureland on land
reclaimed for use as tame pastureland; Finding No. 3.d, Chapter II,
Section H, wetland classification and replacement requirements; Finding
No. 3.f, Chapter III, Section C, sample design and sample size
adequacy; Finding No. 3.g, Chapter III, Section D, the use of entire
field harvest, combined sampling, hand sampling, or representative
strips as procedures for demonstrating productivity on land reclaimed
for use as cropland or prime farmland; Finding No. 3.h, Appendix A, the
use of restricted interseeding as a normal conservation practice on
land reclaimed for use as native grassland; and Finding No. 3.i,
Appendix A, the voluntary plantings of trees and shrubs on agricultural
land at the request of the landowner or to enhance fish and wildlife
habitat as a normal conservation practice.
The Federal regulations at 30 CFR Part 934, codifying decisions
concerning the North Dakota Program, are being
[[Page 36223]]
amended to implement this decision. This final rule is being made
effective immediately to expedite the State program amendment process
and to encourage States to bring their programs into conformity with
the Federal standards without undue delay. Consistency of State and
Federal standards is required by SMCRA.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
934.16 that, within 60 days of the publication of this final rule,
North Dakota must either submit a proposed written amendment, or a
description of an amendment to the proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is
consistent with North Dakota's established administrative or
legislative procedures.
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the North Dakota program, the Director will recognize only
the statutes, regulations and other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by North Dakota of only
such provisions.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR
730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 934
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 6, 1995.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 934--North Dakota
1. The authority citation for Part 934 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 934.15 is amended by adding paragraph (u) to read as
follows:
Sec. 934.15 Approval of amendments to the North Dakota regulatory
program.
* * * * *
(u) With the exceptions of Chapter II, Section C, to the extent
that it allows the demonstration of productivity with less than 3 years
of crop data prior to third-stage bond release on lands reclaimed for
use as prime farmland; and Chapter II, Section I, to the extent that it
does not include complete requirements for measuring the success of
revegetation on land reclaimed for use as recreation; revisions to
North Dakota's policy document entitled ``Standards for Evaluation of
Revegetation Success and Recommended Procedures for Pre- and Postmining
Vegetation Assessments,'' as submitted to OSM on February 17, 1994, and
as revised and supplemented with explanatory information on December
21, 1994, and May 11, 1995, are approved effective July 14, 1995.
3. Section 934.16 is amended by revising the introductory
paragraph, removing and reserving paragraphs (b) through (i), (w), and
(x), and adding paragraphs (aa) and (bb) to read as follows:
Sec. 934.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), North Dakota is required to submit
to OSM by the specified date the following written, proposed program
amendment, or a description of an amendment to be proposed that meets
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for
enactment that is consistent with North Dakota's established
administrative or legislative procedures.
* * * * *
(aa) By September 12, 1995, North Dakota shall revise Chapter II,
Section C in its revegatation document and its rules at NDAC 69-05.2-
22-07(3)(c) and 69-05.2-26-05(3)(c) to require that, prior to third-
stage bond release on land reclaimed for use as prime farmland, the
permittee demonstrate restoration of productivity using 3 crop years.
(bb) By September 12, 1995, North Dakota shall revise Chapter II,
Section I it its revegetation document and its rule at NDAC 69-05.2-22-
07(4)(j) to require tree and shrub stocking standards that meet all
requirements in 30 CFR 816.116(b)(3), including approval by the
appropriate State agencies, on land reclaimed for use as recreation.
North
[[Page 36224]]
Dakota shall also provide documentation of consultation with and
approval from the appropriate State agencies for the ground cover
standard in chapter II, Section I on land reclaimed for use as
recreation.
[FR Doc. 95-17166 Filed 7-13-95; 8:45 am]
BILLING CODE 4310-05-M
