[Federal Register Volume 64, Number 155 (Thursday, August 12, 1999)]
[Rules and Regulations]
[Pages 43913-43924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20840]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SPATS No. TX-041-FOR]
Texas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving an amendment to the Texas regulatory program (Texas
program) under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The amendment concerns revegetation success and normal
husbandry practice guidelines. Texas is adding these guidelines to
ensure consistency with the corresponding Federal regulations; to
ensure that adequate data collection methods are used for determining
revegetation success for purposes of releasing reclamation performance
bonds; and to ensure that the husbandry practices used by the permittee
during the period of responsibility for revegetation success and bond
liability are normal husbandry practices within the region for unmined
lands.
EFFECTIVE DATE: August 12, 1999.
FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa
Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite
470, Tulsa, Oklahoma 74135-6548. Telephone: (918) 581-6430. Internet:
mwolfrom@tokgw.osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Texas Program
On February 16, 1980, the Secretary of the Interior conditionally
approved the Texas program. You can find background information on the
Texas program, including the Secretary's findings, the disposition of
comments, and the conditions of approval in the February 27, 1980,
Federal Register (45
[[Page 43914]]
FR 12998). You can find later actions concerning the Texas program at
30 CFR 943.10, 943.15, and 943.16.
II. Submission of the Proposed Amendment
By letter dated May 13, 1999 (Administrative Record No. TX-649),
Texas sent us an amendment to its program under SMCRA. Texas sent the
amendment in response to our letters dated May 20, 1985, and February
21, 1990 (Administrative Record Nos. TX-358 and TX-476), that we sent
to Texas under 30 CFR 732.17(c). The amendment includes a guideline
document entitled ``Procedures and Standards for Determining
Revegetation Success on Surface-Mined Land in Texas'' that permittees
are to use for sampling and analysis of vegetation data. It also
includes a guideline document entitled ``Normal Husbandry Practices for
Surface-Mined Lands in Texas'' that permittees are to use for
identifying agricultural and management practices that will not extend
the period of responsibility for revegetation success and bond
liability (extended responsibility period).
We announced receipt of the amendment in the June 1, 1999, Federal
Register (64 FR 29249). In the same document, we opened the public
comment period and provided an opportunity for a public hearing or
meeting on the adequacy of the amendment. The public comment period
closed on July 1, 1999. Because no one requested a public hearing or
meeting, we did not hold one.
During our review of the amendment, we identified a concern with
Texas' revegetation success guideline document relating to productivity
of non-prime farmland soils. We were concerned that Texas' guidelines
at Section V.B.2 were not clear on the requirement that in areas
receiving 26 inches or less of precipitation, the production standards
for cropland must be met in at least the last 2 consecutive years of
the responsibility period. We notified Texas of this concern by telefax
dated June 24, 1999 (Administrative Record No. TX-649.07). By letter
dated June 30, 1999 (Administrative Record No. TX-649.09), Texas sent
us revisions to Section V.B.2 and Appendix B that clarify its
requirements for non-prime farmland cropland receiving 26 inches or
less of precipitation.
Because the revisions merely clarified certain provisions of Texas'
amendment, we did not reopen the public comment period.
III. Director's Findings
Following, under SMCRA and the Federal regulations at 30 CFR 732.15
and 732.17, are our findings concerning the amendment.
A. Procedures and Standards for Determining Revegetation Success on
Surface-Mined Lands in Texas
Texas submitted a guideline document that describes the procedures
and standards for determining revegetation success on reclaimed surface
mined lands in Texas. The Texas Coal Mining Regulations at 16 Texas
Administrative Code (TAC) 12.395(a)(1) requires the Railroad Commission
of Texas (Commission) to select standards for success and statistically
valid sampling techniques for measuring success. The Federal
regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) require that each
regulatory authority select revegetation success standards and
statistically valid sampling techniques for measuring success and
include them in its approved regulatory program. The Federal
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) require that
standards for success include criteria representative of unmined lands
in the area being reclaimed to evaluate the appropriate vegetation
parameters of ground cover, production, or stocking. Ground cover,
production, or stocking must be considered equal to the approved
success standard when they are not less than 90 percent of the success
standard. 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). The Federal regulations at 30 CFR 816.116(b) and
817.116(b) require that standards for success be applied in accordance
with the approved postmining land use and specified minimum conditions
for each type of land use. Texas developed its revegetation success
guideline document to satisfy these requirements.
In some cases, the guidelines reference the performance standards
for revegetation success contained in the Texas program at 16 TAC
12.390 through 12.395; but they do not replace or change any existing
State regulations. As discussed in the findings below, we find that the
revegetation success standards and statistically valid sampling
techniques contained in Texas' revegetation success guideline document
meet the requirements of 30 CFR 816.116(a)(1) and 817.116(a)(1) and are
no less effective than the Federal requirements for revegetation
success at 30 CFR 816.116 and 817.116.
1. Section I. Introduction. The introductory section provides the
scope, purpose, and applicability of the revegetation success guideline
document. Permittees must demonstrate revegetation success using the
revegetation standards and statistically valid sampling techniques for
measuring success contained in the guidance document. Use of the
methods contained in this document will provide assurance that adequate
data collection methods have been used for determining revegetation
success for purposes of releasing reclamation performance bond funds.
Permittees may propose alternative procedures for sampling and analysis
of vegetation data. However, the Commission must approve the use of
alternative methods, and the alternative methods must be included in
the approved regulatory program.
We find that Section I is not inconsistent with the requirements of
the Federal regulations at 30 CFR 816.116 and 817.116, and we are
approving it.
2. Section II. Regulatory Requirements. This section references the
regulatory requirements for meeting revegetation success under the
Texas Surface Coal Mining and Reclamation Act at sections 134.041,
.092(a)(19) and (20), and .104. It also references the implementing
performance standards for revegetation success in the Texas Coal Mining
Regulations at 16 TAC 12.390 through 12.395 and 12.399. Texas discusses
the applicable sections of 16 TAC 12.390 and 12.395 that define the
standards by which revegetation success will be measured; the general
requirements that must be met for the vegetative cover; the
requirements for the methodologies used for evaluating when the
standards have been met; and the minimum standards for each postmining
land use. Texas also discusses the definitions at 16 TAC 12.3 that are
applicable to the guidance document, including ``disturbed area'';
``land use''; ``cropland''; ``pastureland''; ``grazingland'';
``forestry''; ``residential''; ``industrial/commercial'';
``recreation''; ``fish and wildlife habitat''; ``undeveloped land'';
and ``reference area.''
We previously approved the regulations referenced and described in
Section II, and we agree that they are applicable to the proposed
revegetation success guideline document. Therefore, we find that
including these regulations in this section of the document is not
inconsistent with the Federal regulation requirements at 30 CFR
816.116(a)(1) and 817.116(a)(1).
[[Page 43915]]
3. Section III. Vegetation Evaluation Procedures. This section
identifies specific concepts and requirements to be followed in
developing revegetation evaluation plans.
Section III.A includes the general requirements for vegetation
evaluation. Ground cover and productivity for herbaceous biomass
measurements must be obtained during the growing season of the primary
vegetation species comprising the land use. Herbaceous productivity is
estimated from only the current season's growth. Woody-plant stocking
can be measured at any time. Ground cover corresponds to the area of
ground covered by the combined areal parts of standing permit-approved
vegetation (dead or alive) and the litter that is produced naturally on
site. The litter component cannot exceed 15 percent of the total ground
cover. The species must be on either the planting list that contains
approved species which support the land use or the list of approved
desirable invader species. Both lists must be included in the approved
permit. Rock fragments are considered ground surface cover during soil
surveys, but only the vegetal component can be considered in ground
cover measurements. Texas includes an example of hypothetical data from
a vegetation survey and the resulting calculations from 100 observation
points.
Section III.B covers the data collection characteristics of
vegetation evaluation. The methods used for doing vegetation surveys
must comply with statistical conventions. All methods used to assess
revegetation success must contain the following criteria: (1) all
sample points must be chosen independently and have an equal chance of
being chosen; (2) the number of sample points should be independent of
the size of the areas to be evaluated; and (3) sample units should
include the same land use, similar vegetation growth forms, comparable
management, and similar chemical and physical soil characteristics. The
number of observation points needed to produce statistically-acceptable
results depends on the vegetation parameter that is measured.
Section III.C identifies the requirements for reporting vegetation
survey data. When submitting revegetation data, permittees are to
include a map or aerial photograph that identifies the location of the
vegetation survey transects. This subsection specifies what information
must be reported for measurements of ground cover; productivity
measurements for forages obtained from plot harvesting; productivity
measurements for forages obtained by weighing a portion of the bales
harvested; productivity measurements for cropland that involve plot
harvesting; productivity measurements involving whole-field harvest;
and stem count measurements for woody-plants. All measurements, except
productivity measurements for cropland plot harvesting and whole-field
harvest, must include a one-sided 90 percent confidence interval (with
a 0.10 alpha error) if the cover, biomass, yield, or stem estimates are
below the lowest acceptable value (90% of the technical standard) or
where the reclaimed area is compared to a reference area. Productivity
measurements for cropland that involve plot harvesting must include a
one-sided 90 percent confidence interval (with a 0.10 alpha error) for
the standardized crop yield. All productivity measurements must include
documentation from a calibrated scale. The permittee must document the
scale manufacturer, model number, calibration date, date and time of
productivity data collections, and individual performing the weighing.
We find that Section III meets the requirements of the Federal
regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) that
statistically valid sampling techniques for measuring success be
selected by the regulatory authority and included in an approved
regulatory program. We also find that this section is no less effective
than the Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
that require sampling techniques for measuring success to use a 90-
percent statistical confidence interval (i.e., one-sided test with a
0.10 alpha error).
4. Section IV. Revegetation Success Evaluation and Measurement
Methods. This section provides the approved methods for implementing
the various evaluation methods for ground cover, productivity, and
woody-plant stocking, including the proper selection of observation
points. Measurement methods are presented for all vegetation
parameters. Measurement results must be compared to either approved
reference areas or technical success standards.
Section IV.A provides information and examples for two methods of
selecting observation points for collecting vegetation data. The first
method, random point sampling, involves the selection of random points
within the area to be evaluated and plotting the points on a map or
aerial photograph. The second method, baseline sampling with multiple
random starts, involves the random placement of a baseline within the
target evaluation area, along with five randomly-placed transverse
transects along the baseline. Either observation location method is
appropriate for all revegetation performance parameters. Ground cover
measurements should ideally involve 100 observation points, with a
minimum of 75 points. Herbaceous productivity and wood plant stocking
estimates require at least 15 measurements. The maximum sample number
for ground cover and productivity/stem count distributions is 150 and
30, respectively. Permittees must use the statistical equations for
binomially-distributed revegetation data in Appendix A to estimate a
statistical adequate sample size for ground cover. They must use the
statistical equations for normally-distributed revegetation data in
Appendix A to estimate a statistically adequate sample size for
productivity and woody-plant stocking.
Section IV.B provides guidance on adjusting for field conditions
when conducting vegetation surveys. Non-vegetated structures such as
permanent roads and ponds, riprap areas, and rock and brush piles
created for wildlife are not to be included as part of the revegetation
analyses. Habitat features in grazingland and pastureland must be
included in ground cover and productivity measurements. Slopes under 25
percent should not influence on-the-ground measurement intervals.
Individual areas to be surveyed must be under the same land use and
management and must contain the same vegetation type.
Section IV.C provides guidelines for ground cover measurements.
Ground cover measurements are required for all land uses, except for
cropland after row crops have been planted. The point intercept method
is the recommended method for determining ground cover. This section
discusses the use of the point intercept method with a crosswire
sighting device.
Section IV.D contains guidance for measurement of productivity. The
method of measurement of productivity is dependent on the land use and
the established vegetation. Productivity can be evaluated by hand-
harvesting or with mechanized agricultural implements. Productivity
measurements must be obtained during the growing season of the primary
vegetation species. Either plot harvesting or whole-field harvesting
are to be used for evaluation of herbaceous species and food or fiber
crops. Herbaceous species should be harvested at the times appropriate
to the plant species. Sampling should be timed to coincide with seed
ripeness or the mature stage of the target vegetative
[[Page 43916]]
species. The moisture content of harvested herbaceous biomass and other
vegetative/grain components must be standardized to eliminate weight
variations due to moisture content. Moisture content must be determined
using a properly calibrated, standard agricultural grain moisture
tester. A determination that a statistically adequate sample size was
obtained is performed on standardized or corrected dry weights. This
section contains the formula for correcting the measured grain/bean
weights to appropriate moisture contents. For whole-field harvesting,
the total production from a hayed or harvested area is obtained by
weighing the entire yields of the agricultural commodity. The permittee
must notify the Commission 15 to 30 days before the harvest. The
Commission may require that an inspector be on site during the harvest
activity. Forage crops must be harvested following sound agronomic
practices, including field-drying cut forage and not bailing until the
forage moisture content is 25 percent or less. Moisture content for
grains/beans must be adjusted to the accepted values for each
agricultural commodity. The foreign material content of the grain/beans
must be determined by a licensed grain dealer and the weight shrunk to
marketable condition weight with a foreign material allowance of one
percent. There is no allowances for harvest and handling losses. The
harvesting of plots instead of the whole area is an acceptable
alternative, as long as the yields of the plots are representative of
the overall production. Appropriate sampling procedures for plots are
included in this section. Sampling procedures include information to
collect; plot size; harvest procedures; sample number; determination of
moisture content; and a double-sampling method. This section also
describes the grazing method to estimate productivity. The conversion
of animal units (AU) to a weight of vegetation biomass for a given area
can be used to estimate productivity in grazingland and pasture land
uses instead of whole-field or plot harvesting. The animal numbers must
be maintained in a manner that allows grazing of the current year's
forage production without damaging future forage growth and quality.
Included in this section is a table showing the minimum plant residue
levels and stubble heights to sustain production and a table that
contains a guide to animal-unit equivalents. Stocking rates must be
verified by a signed affidavit from the party managing the grazing of a
given area and must identify the time period covered and the class of
livestock involved.
Section IV.E provides guidelines for woody plant stocking.
Randomly-selected measurement locations are required for conducting
woody plant stocking evaluations. Observation points should not be
located within 20 feet of the edge of the stocked area. Observation
points for woody plant counts can also be used for measuring ground
cover. Woody plants counted for success determination must be alive and
healthy and in place for two growing seasons. Miniplots, usually
circular in shape, are used to determine stocking rates. The number of
plots needed to characterize the evaluation area will depend on the
variability of the vegetation. Approximately 30 plots should be
randomly-placed, regardless of the size of the area to be evaluated.
The number of samples required is calculated following procedures
listed in Appendix A. The permittee must continue the sampling
procedure until the actual number of measurements produces a
statistically adequate sample size.
Section IV.F contains guidance on selecting and management of
reference areas. The permittee must work closely with the Commission
staff to select and develop a suitable reference area. Reference areas
are unmined land units that are maintained under appropriate management
for the purpose of measuring vegetation ground cover, productivity, and
plant species diversity that are produced naturally or by agricultural
production methods approved by the Commission. Reference areas must be
representative of geology, soil, slope, and vegetation in the permit
area. This section contains criteria for comparing revegetated mined
areas and reference areas. Although it is not essential that the
reference area be immediately adjacent to the mined, revegetated area,
the two areas should be close enough to each other to prevent
differences in rainfall distribution patterns.
We find that the requirements of Section IV meet the requirements
of the Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1)
that statistically valid sampling techniques for measuring success be
selected by the regulatory authority and included in an approved
regulatory program. We also find that this section is no less effective
than the Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
that require sampling techniques for measuring success to use a 90-
percent statistical confidence interval (i.e., one-sided test with a
0.10 alpha error).
5. Section V. Revegetation Success Standards. This section lists
the revegetation success standards for each land use type and provides
information on determining productivity of the reclaimed areas. Nine
general types of land use are included: grazingland; pastureland;
cropland; forestry; fish and wildlife habitat; undeveloped land;
industrial/commercial; residential; and recreation. We find that Texas'
revegetation success guidelines for each land use type in combination
with its previously approved regulations at 16 TAC 12.395 meet the
Federal requirements at 30 CFR 816.116(a)(1) and 817.116(a)(1) that
success standards be selected by the regulatory authority and included
in its approved regulatory program. We also find that Texas' success
standards for each land use type are no less effective than the Federal
regulations at 30 CFR 816.116(b) and 817.116(b) that require standards
for success be applied in accordance with the approved postmining land
use.
a. Section V.A provides guidelines relating to ground cover and
productivity standards for grazingland and pastureland. The ground
cover values and productivity of mined, revegetated areas are compared
either to the ground cover or productivity of an approved reference
area or to approved technical standards. The revegetation success
standard when reference areas are used is that the ground cover and the
productivity of the revegetated grazingland or pastureland must be 90
percent of the reference area with a 90 percent statistical confidence.
The approved technical standards for ground cover on grazingland
and pastureland are dependent upon the moisture regime (5- or 10-year
extended responsibility period area) and the dominant plant species.
For areas with an average annual precipitation greater than 26 inches,
the ground cover standard is 95 percent for sod-forming grasses and 90
percent for bunch grass mixtures. For areas with an average annual
precipitation less than or equal to 26 inches, the ground cover
standard is 90 percent for sod-forming grasses and 80 percent for bunch
grass mixtures. Seventy-five percent of the ground cover must be
permit-approved species which support the land use. The remaining 25
percent can be permit-approved, desirable invader species.
Whole-field harvesting is appropriate for grazingland or
pastureland harvested for hay. The harvest of plots is appropriate for
all grazingland and pastureland. When reference areas are used, the
permittee must compare the productivity of the reference area to the
reclamation area. The lowest acceptable
[[Page 43917]]
value for the productivity of the reference area is 90 percent of the
reference area productivity value. The actual yield for the reclaimed
area must be used when comparing the data. Site-specific technical
standards for grazingland and pastureland production are currently
developed by the USDA-NRCS and are included in the permit application
for each mine. These standards are site-specific with respect to
rainfall, species/cultivar produced, soil mapping unit, and
fertilization. The permittee must compare the productivity of the
reclaimed area, with a 90 percent confidence interval, to the
appropriate technical standard.
The Federal regulations at 30 CFR 816.116(b)(1) and 817.116(b)(1)
require that ground cover and production of living plants on the
revegetated grazingland or pastureland areas be at least equal to that
of a reference area or such other success standards approved by the
regulatory authority. We find that Texas' success standards for
grazingland and pastureland are no less effective than these Federal
requirements.
b. Section V.B contains guidance on the ground cover and
productivity standards for cropland with non-prime farmland soils and
cropland with prime farmland soils. Adequate ground cover to control
erosion is required until crop production begins for both soil types.
(1) The productivity of mined, revegetated areas where non-prime
farmland soils were involved is compared either to the productivity of
an approved reference area or to approved technical standards. For non-
prime farmland soils, the permittee must determine the lowest
acceptable value for the productivity of the reference area by
calculating 90 percent of the yield obtained form the reference area.
The permittee must then compare the actual yield for the reclaimed area
productivity to the lowest acceptable value for the reference area. For
non-prime farmland soils, technical success standards must be
determined by the USDA-NRCS at the request of the mine operator or
landowner. The technical standards will be permit-specific and will be
developed by using data on the expected individual crop productivity
for the particular county and soil mapping unit, as published in the
USDA-NRCS Field Office Technical Guides. For bond release in areas
receiving more than 26 inches of precipitation (5-year responsibility
period), the total field harvest of the crop for any two years, except
the first year, will be compared to the approved productivity standard
specifically developed for the particular crop and a particular growing
season. In areas receiving 26 inches of precipitation or less (10-year
responsibility period), the production standards must be met in at
least the last 2 consecutive years of the responsibility period. The
permittee must compare the productivity of the reclaimed area to 90
percent of the appropriate technical standards.
We find that Texas' success standards for non-prime farmland
cropland are no less effective than the Federal regulations at 30 CFR
816.116(b)(2) and 817.116(b)(2) that require crop production on the
revegetated area to be at least equal to that of a reference area or
such other success standards approved by the regulatory authority. We
also find that Texas' success standards for non-prime farmland cropland
for areas of more than 26 inches of annual average precipitation are no
less effective than the Federal regulations at 30 CFR 816.116(c)(2)(i)
and 817.116(c)(2)(i) that require cropland to equal or exceed the
approved success standard during the growing season of any two years of
the responsibility period, except the first year. Lastly, we find that
Texas' success standards for non-prime farmland cropland in areas
receiving 26 inches of precipitation or less are no less effective than
the Federal regulations at 30 CFR 816.116(c)(3)(i) and 817.116(c)(3)(i)
that require cropland to equal or exceed the approved success standard
for at least the last two consecutive years of the responsibility
period.
(2) Prime farmland productivity will be restored in accordance with
provisions specified in 16 TAC 12.625 (Prime Farmland: Revegetation and
Restoration of Soil Productivity). Productivity of restored prime
farmlands will be returned to equivalent levels of crop yields as non-
mined land of the same soil type in the surrounding area under
equivalent levels of crop yields as non-mined land of the same soil
type in the surrounding area under equivalent management practices.
Measurement of crop productivity will be initiated within 10 years
after completion of soil replacement. The measurement period for
determining average annual crop production shall be a minimum of three
crop years prior to bond release. For areas receiving more than 26
inches of precipitation, crop production may be measured in any of the
extended responsibility period years except the first. For areas
receiving 26 inches of precipitation or less, the crop production
standards must be met in at least the last two consecutive years of the
extended responsibility period. The reference crops on which
restoration of soil productivity is proven shall be selected from the
crops most commonly produced on the surrounding prime farmland. Only
two of the three required crop years may involve forage crops. Where
row crops are the dominant crop grown on prime farmland in the area,
the row crop requiring the greatest rooting depth must be chosen as one
of the reference crops. Permittees must select reference crops through
consultation with the USDA-NRCS. Reference areas are not applicable
where restored prime farmland soils are involved. Productivity of crops
grown on reclaimed prime farmland soils will be measured by using the
crop yield of a reference crop produced on all or a portion of the
reclaimed area. Crop yields will be determined through whole-field or
plot harvesting. The reference crop yields for a given crop season will
be compared to average yields for specific prime farmland soil series.
These average yields are obtained from the USDA-NRCS National Soil
Information System database, which contains information linking soil
series and slope phase, land capability, and crop yields. Restoration
of soil productivity will 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 non-mined soils
of the same or similar texture or slope phase of the soil series in the
surrounding area under equivalent management practices.
By letter dated April 13, 1999, the USDA-NRCS State Conservationist
in Texas concurred with the guidelines contained in Section V.B.4
concerning evaluation of productivity for restored prime farmland soils
(Administrative Record No. TX-649).
Based on the USDA-NRCS concurrence and our own technical
evaluation, we find the Texas' guidelines for restoration of prime
farmland cropland are consistent with and no less effective than the
Federal regulation requirements at 30 CFR 823.15 pertaining to
revegetation and restoration of prime farmland soil productivity. We
also find that Texas' success standards for prime farmland cropland for
areas of more than 26 inches of annual average precipitation are no
less effective than the Federal requirements at 30 CFR 816.116(c)(2)(i)
and 817.116(c)(2)(i) that require cropland to equal or exceed the
approved success standard during the growing season of any of the years
of the responsibility period, except the first year. We find further
that Texas' success standards for prime farmland cropland for areas of
26 inches or less of annual average precipitation are consistent with
the Federal regulations at 30 CFR
[[Page 43918]]
816.116(c)(3)(i) and 817.116(c)(3)(i) that require cropland to equal or
exceed the approved success standard during the growing seam of at
least the last two consecutive years of the responsibility period.
c. Section V.C provides guidelines on the ground cover standards
and woody-plant stocking rates for the forestry land use category. The
forestry land use category is land used or managed for the long-term
production of wood, wood fiber, or wood-derived products. Ground cover
of mined, revegetated forestry areas are compared either to the ground
cover of an approved reference area or to approved technical standards.
The ground cover of the reclaimed forest must be within 90 percent
of the ground cover of the reference area, with a 90 percent
statistical confidence. Only permit-approved permanent species and
additional species found in the reference area will count toward the
ground cover. The permittee must measure and record the ground cover
value for the reference area and the reclaimed area. The permittee must
then compare the reclaimed area ground cover estimate to 90 percent of
the reference area cover value. If technical standards are used, they
must be equal to or greater than 78 percent ground cover. The permittee
must compare the reclaimed area ground cover estimate to 90 percent of
the ground cover standard. Ground cover measurements must be evaluated
in conjunction with information on the species composition. Seventy-
five percent of the ground cover must be comprised of permit-approved
species which support the land use and the remaining 25 percent can be
comprised of desirable invader species. Lists of both types of species
must be included in the approved reclamation plan.
The success of woody-plant stocking is determined by comparing the
reclaimed forest area to a technical standard. The stocking rate
success standards for woody plant species will be permit-specific and
site-specific. Success standards for stocking rates will be developed
by the applicant through consultation with the Texas Forest Service in
accordance with guidelines included in attachment 3 of Texas'
revegetation success guideline document. Success standards will be
subject to review and comment during the permit review and will be
approved by the Texas Forest Service. The permittee must compare the
mean stem count of the reclaimed area to 90 percent of the appropriate
stem count standard. Woody-plant stocking measurements must be
evaluated in conjunction with information on the species composition of
the stands.
We find that Texas' guidelines for forestry are consistent with and
no less effective than the Federal regulation requirements at 30 CFR
816.116(b)(3) and 817.116(b)(3). The Federal regulations require that
minimum stocking and planting arrangements be specified by the
regulatory authority on the basis of local and regional conditions and
after consultation with and approval by the State agency responsible
for the administration of forestry. Consultation and approval may occur
on either a programwide or a permit-specific basis. As noted above,
Texas is requiring consultation and approval on a permit-specific
basis.
d. Section V.D contains guidance on ground cover standards and
woody-plant rates for fish and wildlife habitat. Fish and wildlife
habitat is land that is dedicated wholly or partially to the
production, protection, or management of species of fish or wildlife.
The ground cover values of mined, revegetated areas are compared to
an approved technical standard. The ground cover of the reclaimed fish
and wildlife habitat must be within 90 percent of a 78 percent ground
cover success standard with a 90 percent statistical confidence. Ground
cover measurements must be evaluated in conjunction with information on
the species composition of the stands. Seventy-five percent of the
ground cover must include permit-approved species which support the
land use. Twenty-five percent can be comprised of desirable invader
species as established and approved in the permit.
The success of woody-plant stocking is measured by comparing the
reclaimed habitat to a technical standard. The stocking rates for woody
plant species will be permit-specific and site-specific. Stocking rates
must be developed by the applicant through consultation with the Texas
Parks and Wildlife Department in accordance with guidelines included in
attachment 2 of Texas' revegetation success guideline document. Success
standards will be subject to review and comment during the permit
review and will be approved by the Texas Parks and Wildlife Department.
Permittees must compare the mean stem count of the reclaimed area to 90
percent of the appropriate stem count standard. Woody-plant stocking
measurements must be evaluated in conjunction with information on the
species composition of the stands.
We find that Texas' guidelines for fish and wildlife habitat are
consistent with and no less effective than the Federal regulation
requirements at 30 CFR 816.116(b)(3) and 817.116(b)(3). The Federal
regulations require that minimum stocking and planting arrangements be
specified by the regulatory authority on the basis of local and
regional conditions and after consultation with and approval by the
State agency responsible for the administration of wildlife programs.
Consultation and approval may occur on either a programwide or a
permit-specific basis. As noted above, Texas is requiring consultation
and approval on a permit-specific basis.
e. Section V.E provides guidelines on ground cover standards and
woody-plant stocking rates for undeveloped land. Undeveloped land (no
current use or land management) is land that is undeveloped or, if
previously developed, land that has been allowed to return naturally to
an undeveloped state or has been allowed to return to forest through
natural succession.
The ground cover values of mined, revegetated areas are compared to
approved technical standards. The choice of technical standards to
employ depends on the dominant vegetation growth form found in the
undeveloped land: grasses or woody species. If grasses are predominant
and the areas have an average annual precipitation greater than 26
inches, the ground cover standard is 95 percent for sod-forming grasses
and 90 percent for bunch grass mixtures. If grasses are predominant and
the areas have an average annual precipitation less than or equal to 26
inches, the ground cover standard is 90 percent for sod-forming grasses
and 80 percent for bunch grass mixtures. If woody species are
predominant, the technical standard for ground cover is 78 percent. The
permittee must compare the ground cover estimate to 90 percent of the
appropriate ground cover standard. Ground cover measurements must be
evaluated in conjunction with information on the species composition of
the stands.
Woody-plant stocking is measured by comparing the reclaimed area to
a technical standard. The stocking rates for woody plant species are
permit-specific and site-specific. The permittee must develop stocking
rates through consultation with the Texas Parks and Wildlife Department
in accordance with guidelines included in attachment 2 of Texas'
guideline document. Success standards will be subject to review and
comment during the permit review and will be approved by the Texas
Parks and Wildlife Department. The permittee must compare the mean stem
count of the reclaimed area to 90 percent of the appropriate stem count
standard. Woody-plant stem count measurements
[[Page 43919]]
must be evaluated in conjunction with information on the species
composition of the stands.
The Federal regulations at 30 CFR 816.116(b) and 817.116(b) do not
contain specific reclamation success standards for undeveloped land.
However, we find that Texas' guidelines for undeveloped land are not
inconsistent with the requirements of the Federal regulations at 30 CFR
816.116(b)(3) and 817.116(b)(3) for areas to be developed for fish and
wildlife habitat, recreation, shelter belts, or forest products.
f. Section V.F contains guidelines relating to ground cover
standards and woody-plant stocking rates for industrial/commercial land
uses. These land uses involve either (1) extraction or transformation
of materials for fabrication of products, wholesaling of products, or
for long-term storage of products or (2) retail or trade of goods or
services.
Ground cover must be adequate to control erosion. Woody-plant
stocking, if it is implemented, is measured by comparing the reclaimed
area to a technical standard. The stocking rates for woody plant
species will be permit-specific and site-specific. Stocking rates must
be developed by the applicant through consultation with the Texas Parks
and Wildlife Department in accordance with guidelines included in
attachment 2 of Texas' revegetation success guidelines. Woody-Plant
stocking success standards will be subject to review and comment during
the permit review and will be approved by the Texas Parks and Wildlife
Department. Permittees must compare the mean stem count of the
reclaimed area to 90 percent of the appropriate stem count standard.
Woody-plant stem count measurements must be evaluated in conjunction
with information on the species composition of the stands.
We find that Texas' ground cover guidelines are no less effective
than the Federal regulation requirements at 30 CFR 816.116(b)(4) and
817.116(b)(4) for areas to be developed for industrial, commercial, or
residential use. The Federal regulations do not contain a woody-plant
stocking standard for these land uses. However, we find that Texas'
woody-plant stocking guidelines are consistent with the minimum
stocking and planting arrangement requirements of the Federal
regulations at 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i) for areas
to be developed for fish and wildlife habitat, recreation, shelter
belts, or forest products.
g. Section V.G provides guidance on ground cover standards and
woody-plant stocking rates for a residential land use. This land use
includes single- and multiple-family housing, mobile home parks, and
other residential lodgings. Ground cover must be adequate to control
erosion. Woody-plant stocking, if used, is measured by comparing the
reclaimed area to a technical standard. The stocking rates for woody
plant species will be permit-specific and site-specific. Stocking rates
will be developed by the applicant through consultation with the Texas
Parks and Wildlife Department, in accordance with guidelines included
in attachment 2 of Texas' revegetation success guideline document.
Success standards will be subject to review and comment during the
permit review and will be approved by the Texas Parks and Wildlife
Department. The permittee must compare the mean stem count of the
reclaimed area to 90 percent of the appropriate stem count standard.
Woody-plant stem count measurements must be evaluated in conjunction
with information on the species composition of the stands.
We find that Texas' ground cover guidelines for residential land
use are no less effective than the Federal regulation requirements at
30 CFR 816.116(b)(4) and 817.116(b)(4) for areas to be developed for
industrial, commercial, or residential use. The Federal regulations do
not contain a woody-plant stocking standard for this land use. However,
we find that Texas' woody-plant stocking guidelines are consistent with
the minimum stocking and planting arrangement requirements of the
Federal regulations at 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i) for
areas to be developed for fish and wildlife habitat, recreation,
shelter belts, or forest products.
h. Section V.H contains guidelines on ground cover standards and
woody-plant stocking rates for recreation land uses. This land use
involves public or private leisure-time use, including developed
recreation facilities such as parks, camps, and amusement areas. It may
also include less intensive uses such as hiking, canoeing, and other
undeveloped recreational uses. Ground cover must be sufficient to
control erosion. Woody-plant stocking is measured by comparing the
reclaimed area to a technical standard. The stocking rates for woody
plant species will be permit-specific and site-specific. Stocking rates
will be developed by the applicant through consultation with the Texas
Parks and Wildlife Department in accordance with guidelines included in
attachment 2 of Texas' revegetation success guideline document. Success
standards will be subject to review and comment during the permit
review and will be approved by the Texas Parks and Wildlife Department.
The permittee must compare the mean stem count of the reclaimed area to
90 percent of the appropriate stem count standard. The permittee must
evaluate woody-plant stem count measurements in conjunction with
information on the species composition of the stands.
We find that Texas' guidelines for recreation land use are
consistent with and no less effective than the Federal regulation
requirements at 30 CFR 816.116(b)(3) and 817.116(b)(3). The Federal
regulations require that minimum stocking and planting arrangements be
specified by the regulatory authority on the basis of local and
regional conditions and after consultation with and approval by the
State agency responsible for the administration of wildlife programs.
Consultation and approval may occur on either a programwide or a
permit-specific basis. As noted above, Texas is requiring consultation
and approval on a permit-specific basis.
6. Section VI. Literature Cited. This section provides a listing of
the literature used in developing the guideline document. We find that
this section is not inconsistent with the Federal regulations at 30 CFR
816.116(a)(1) and 817.116(a)(1).
7. Appendices and Attachments. Texas included the following
appendices and attachments in its revegetation success guideline
document.
a. Appendix A contains the statistical information, including
equations and tables, to be used in the determination of revegetation
success for ground cover, productivity, and woody-plant stocking. We
conducted a technical review of the statistical operations contained in
appendix A, and we found that they meet the requirements of the Federal
regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) that
statistically valid sampling techniques for measuring success be
selected by the regulatory authority and included in an approved
regulatory program.
b. Appendix B provides a table summarizing the revegetation success
standards for all land uses. The table in Appendix B includes the
revegetation parameters, performance standards, and conditions for bond
release relating to each land use. We find that the addition of this
summary is not inconsistent with the Federal regulations at 30 CFR
816.116(a)(1) and 817.116(a)(1).
c. Appendix C contains examples of revegetation success
determinations for ground cover and productivity involving herbaceous
biomass and woody plant stem counts. The addition
[[Page 43920]]
of examples will aid the permittees in making revegetation success
determinations when using the statistical sampling techniques in Texas'
revegetation success guideline document. Therefore, we find that
appendix C is not inconsistent with the Federal regulation requirements
at 30 CFR 816.116(a)(1) and 817.116(a)(1).
d. Attachment 1 is a document entitled ``The Development of the
Forage Production Standards for Post Mine Soils'' by the United States
Department of Agriculture--Natural Resources Conservation Service. It
contains an example of the methodology used by the USDA-NRCS to develop
site-specific productivity standards for mining companies in Texas to
use in demonstrating grazingland and pastureland productivity success
on reclaimed areas. We find that the addition of attachment 1 is not
inconsistent with the Federal regulation requirements at 30 CFR
816.116(a)(1) and 30 CFR 817.116(a)(1).
e. Attachment 2 is a document entitled ``Texas Parks and Wildlife
Department Recommendations for the Development of Success Standards for
Woody-Plant Stocking Rates.'' Permit applicants must develop woody-
plant stocking rates for various land uses through consultation with
the Texas Parks and Wildlife Department in accordance with the
guidelines included in this attachment. We find that the addition of
attachment 2 is not inconsistent with the Federal regulation
requirements at 30 CFR 816.116(a)(1) and 30 CFR 817.116(a)(1).
f. Attachment 3 is a document entitled ``Texas Forest Service
Recommendations for Reforestation of Pine and Hardwoods in Texas.''
Permit applicants must develop woody-plant stocking rates for forestry
land uses through consultation with the Texas Forest Service in
accordance with the guidelines included in this attachment. We find
that the addition of attachment 3 is not inconsistent with the Federal
regulation requirements at 30 CFR 816.116(a)(1) and 30 CFR
817.116(a)(1).
B. Normal Husbandry Practices for Surface-Mined Lands in Texas
Texas submitted a guideline document that describes the husbandry
practices that may be used by the permittee during the period of
responsibility for revegetation success and bond liability without
restarting the extended responsibility period. The Texas Coal Mining
Regulations at 16 TAC 12.395(c)(4) allow the Commission to approve
selective husbandry practices provided it obtains prior approval from
OSM that the practices are normal husbandry practices. The Federal
regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) allow each
regulatory authority to approve selective husbandry practices as normal
husbandry practices, excluding augmented seeding, fertilization, or
irrigation, provided it obtains prior approval for the practices from
OSM in accordance with 30 CFR 732.17. These normal husbandry practices
may be implemented without extending 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 must be normal husbandry practices within the region for
unmined lands having land uses similar to the approved postmining land
use of the disturbed area, including such practices as disease, pest,
and vermin control. It also includes any pruning, reseeding, and
transplanting needed because of these practices. Texas developed a
normal husbandry practices guideline document to implement these
requirements.
As discussed in the findings below, we find that the normal
husbandry practices contained in the guideline document satisfy the
requirements of 30 CFR 816.116(c)(4) and 817.116(c)(4).
1. Section I. Introduction. The introductory section provides the
scope, purpose, and applicability of the normal husbandry practices
guideline document. The guideline document includes the normal
husbandry practices that permittees must use for disease and pest
control, application of fertilizers, application and incorporation of
other soil amendments, and any other necessary soil vegetation
management activities on surface-mined lands in Texas during the
extended responsibility period. Husbandry practices not included in
this document may be considered augmentative in nature and, if
performed on land that is currently in the extended responsibility
period, may restart that period. The decision whether a particular
activity can be classified as a normal husbandry practice will depend
both on the regulatory requirements of the Texas Coal Mining
Regulations and the postmining land use.
We find that this introductory section is not inconsistent with the
Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4), and we
are approving it.
2. Section II. Regulatory Requirements.
a. This section references the regulatory requirements for meeting
revegetation success under the Texas Surface Coal Mining and
Reclamation Act at sections 134.041, .092(a)(19) and (20), and .104. It
also references the implementing performance standards for revegetation
success in the Texas Coal Mining Regulations at 16 TAC 12.390 through
12.395, and 12.399. Texas discusses the applicability of section of 16
TAC 12.395(c)(4), which recognizes that the Commission may determine
that certain management practices will not extend the responsibility
period for revegetation success and bond liability.
We previously approved the regulations referenced and described in
this section, and we agree that they are applicable to the proposed
normal husbandry practices guideline document. Therefore, we find that
the reference to and discussion of these regulations in this section of
the document is not inconsistent with the Federal regulation
requirements at 30 CFR 816.116(c)(4) and 817.116(c)(4).
b. Texas noted that the Commission intends that the terms
``husbandry'' and ``augment'' both have their ordinary meanings as
follows:
Husbandry--the control or judicious use of resources:
conservation; the cultivation or production of plants and animals:
agriculture; the scientific control and management of a branch of
farming and especially of domestic animals.
Augment--to make (something well or adequately developed)
greater, more numerous, larger, or intense.
We find that Texas' definitions for the terms ``husbandry'' and
``augment'' are not inconsistent with the Federal regulation
requirements at 30 CFR 816.116(c)(4) and 817.116(c)(4).
3. Section III. Conventions for Normal Husbandry Practices. Texas
lists the following three conventions regarding normal husbandry
practices for surface-mined lands in Texas:
(1.) Normal husbandry practices are region-specific and include
activities performed by landowners managing lands not disturbed by
mining activities. For example, limestone application and
incorporation is not practiced anywhere in the South Texas Plains
vegetational area; therefore, liming would not be a normal husbandry
practice for mines situated in this region. Practices required to
address problems that arise from mining-related activities are not
considered normal husbandry practices.
(2.) Normal husbandry practices are those activities that can
expected to continue as part of the postmining land use.
(3.) Discontinuance of the husbandry practices will not reduce
the probability of revegetation success. For example, the
discontinuance of maintenance fertilization
[[Page 43921]]
on grazingland would not result in loss of vegetative cover (it
might lead to an alteration of the species composition, however).
We find that Texas' conventions for normal husbandry practices at
Section III are consistent with the requirements of the Federal
regulations at 30 CFR 816.116(c)(4) and 817.117(c)(4).
4. Section IV. Normal Husbandry Practices, as Influenced by Land
Uses. In Section IV, Texas proposes normal husbandry practices for six
vegetative community postmining land uses defined in the Texas program:
grazingland; pastureland; cropland; forestry; fish and wildlife
habitat; and undeveloped land. The normal husbandry practices listed
for grazingland, pastureland, cropland, forestry, and fish and wildlife
habitat are divided into three general categories: (1) general
management of soil and vegetation; (2) addition of plant nutrients and
other soil amendments; and (3) pest management. Documents defining the
normal husbandry practices for each category are referenced. Texas
submitted copies of these documents to support its proposed practices
for disease and pest control; application of fertilizers; application
and incorporation of other soil amendments; and other necessary soil
vegetation management activities on surface-mined lands. Because the
definition of undeveloped land excludes any type of management inputs
during the extended responsibility period, Texas is only allowing
limited erosion repair for this land use.
We determined that the documents submitted by Texas and referenced
in Section IV represent normal husbandry practices in Texas, and we
find that Section IV is no less effective than the Federal regulations
at 30 CFR 816.116(c)(4) and 817.116(c)(4).
5. Section V. Repair of Damaged Reclaimed Areas and Removal of
Structures. In Section V, Texas provides guidelines for erosion repair,
other damage repair, reseeding areas, overseeding, and restocking of
woody species. Texas also included a provision for regrading and
revegetation of areas where temporary structures have been removed. By
letter dated May 4, 1999, the USDA-NRCS State Conservationist in Texas
concurred with Texas' proposed guidelines for repair of damaged areas
and removal of structures in Section V.
a. Because reclaimed sites may experience some type of damage to
established vegetation at some point during the period of extended
responsibility, Texas may consider repair of erosion or other types of
damage as a normal husbandry practice, provided that the damage is not
caused by a lack of planning, design, or implementation of the mining
and reclamation plan. Examples of such damage includes small slips,
channel erosion, and unauthorized access. The total acreage of repaired
areas cannot exceed three contiguous acres or ten percent of the total
land of the extended responsibility area. In cases of erosion, repairs
may be considered nonaugmentative if rill and gully damage was caused
by precipitation exceeding a 10-year/24-hour event or damage occurred
before the first two years of a 5-year extended responsibility period
or four years of a 10-year extended responsibility period. After the
first two or four years, whichever is applicable, total acreage for
erosion repair cannot exceed one contiguous acre or two percent of the
total land of that extended responsibility area. Texas will require
that areas undergoing damage repair be fully revegetated with
permanent, permit-approved species for at least one year before final
bond release and meet all vegetation cover and productivity success
standards. Documents defining the normal husbandry practices relating
to general management, addition of plant nutrients and other soil
amendments, and pest management for erosion repair areas are referenced
in this section. Texas submitted copies of these documents and the
USDA-NRCS concurrence letter, discussed above, to support its proposed
normal husbandry practice guidelines for repair of erosion or other
types of damage.
We determined that the documents submitted by Texas and referenced
in Section V represent normal husbandry practices in Texas for repair
of erosion or other types of damage. We believe that by limiting the
size of areas that may be repaired without restarting the extended
responsibility period and by demonstrating that such practices are
supported as normal husbandry practices, Texas has ensured that the
probability of revegetation success will not be reduced. Therefore, we
find that Texas' proposed guidelines for repair of erosion or other
types of damage are consistent with and no less effective than the
Federal regulation requirements at 30 CFR 816.116(c)(4) and
817.116(c)(4).
b. Texas will determine whether or not regrading and revegetation
of areas where temporary structures such as sediment ponds, roads, and
small diversions have been removed are nonaugmentative on a case-by-
case basis. Areas that may pose significant potential for reclamation
problems will require a separate extended responsibility period. Texas
will require that areas undergoing removal of structures be fully
revegetated with permanent, permit-approved species for at least one
year before final bond release and meet all vegetation cover and
productivity success standards.
Texas' provision that areas will be fully revegetated for at least
one year before final bond release and meet all vegetation cover and
productivity success standards will ensure that the vegetation of these
areas will be subject to Texas' counterparts to the Federal regulations
at 30 CFR 816.116 and 817.116 relating to the attainment of
revegetation success. It will also discourage the removal of ponds,
roads, or diversions toward the end of the liability period for the
surrounding area because these areas would not qualify for final bond
release until vegetative cover is fully established and meets Texas'
revegetation standards. Texas' reference to temporary roads in its
policy is interpreted by OSM to mean those roads necessary for
maintenance of sediment ponds, diversions, and reclamation areas.
Ancillary roads used for maintenance do not include haul roads or other
primary roads which should have been removed upon completion of mining.
It is also noted that in its letter dated May 4, 1999, the USDA-NRCS
State Conservationist concurred with Texas' guideline for removal of
structures.
Although Texas' guideline is primarily concerned with defining
normal husbandry practices, the term ``nonaugmentative'' is used with
reference to the removal and reclamation of structures used in support
of reclamation. Texas specifically states in its guideline that the
removal and reseeding of the structures is not a normal husbandry
practice. We agree that reclamation of these areas, while being
nonaugmentative, is not a normal husbandry practice.
As outlined in the May 29, 1996, Federal Register (61 FR 26792),
OSM has adopted the policy published for comment in the September 15,
1993, Federal Register (58 FR 48333). Section 515(b)(20) of SMCRA
provides that the revegetation responsibility period shall commence
``after the last year of augmented seeding, fertilizing, irrigation, or
other work'' needed to assure revegetation success. In the absence of
any indication of Congressional intent in the legislative history, OSM
interprets this requirement as applying to the increment or permit area
as a whole, not individually to those lands within the
[[Page 43922]]
permit area upon which revegetation is delayed solely because of their
use in support of the reclamation effort on the planted area. As
implied in the preamble discussion of 30 CFR 816.46(b)(5), which
prohibits the removal of ponds or other siltation structures until two
years after the last augmented seeding, planting of the sites from
which such structures are removed need not itself be considered an
augmented seeding necessitating an extended or separate liability
period (48 FR 44038-44039, September 26, 1983).
The purpose of the revegetation responsibility period is to ensure
that the mined area has been reclaimed to a condition capable of
supporting the desired permanent vegetation. Achievement of this
purpose will not be adversely affected by this interpretation of
section 515(b)(20) of SMCRA because the lands involved are relatively
small in size and either widely dispersed or narrowly linear in
distribution and the delay in establishing revegetation on these sites
is due not to reclamation deficiencies or the facilitation of mining,
but rather to the regulatory requirement that ponds and diversions be
retained and maintained to control runoff from the planted area until
the revegetation is sufficiently established to render such structures
unnecessary for the protection of water quality.
In addition, the areas affected likely would be no larger than
those which could be reseeded (without restarting the revegetation
period) in the course of performing normal husbandry practices, as that
term is defined in 30 CFR 816.116(c)(4) and explained in the preamble
to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012,
28016; July 27, 1987). Areas this small would have a negligible impact
on any evaluation of the permit area as a whole. Most importantly, this
interpretation is unlikely to adversely affect the regulatory
authority's ability to make a statistically valid determination as to
whether a diverse, effective permanent vegetative cover has been
successfully established in accordance with the appropriate
revegetation success standards. From a practical standpoint, it is
usually difficult to identify precisely where such areas are located in
the field once revegetation is established in accordance with the
approved reclamation plan.
Based on the above discussion, we find that Texas' guideline for
regrading and revegetation of areas where temporary structures have
been removed is consistent with and no less effective than the Federal
regulations at 30 CFR 816.46(b)(5) and (6), 817.46(b)(5) and (6),
816.150(f)(6), 817.150(f)(6), and sections 515(b)(19) and (20) of
SMCRA, as clarified by OSM in the September 15, 1993, Federal Register
(58 FR 48333).
c. Overseeding of winter cover crops and/or summer annuals, into
existing vegetation, is considered a normal husbandry practice. Texas
will require reseeding activities to be included in the mining
company's reclamation plan. Texas referenced documents defining the
normal husbandry practices relating to general management, addition of
plant nutrients and other soil amendments, and pest management for
reseeded areas. Texas submitted copies of these documents to support
reseeding areas. We determined that the documents submitted by Texas
and referenced in Section V represent normal husbandry practices in
Texas for overseeding of winter cover crops and/or summer annuals, into
existing vegetation. Therefore, we find that Texas' proposed guidelines
for overseeding are consistent with and no less effective than the
Federal regulation requirements at 30 CFR 816.116(c)(4) and
817.116(c)(4).
d. Restocking of woody species is allowed, as long as the time and
quantity of restocking is in compliance with Texas' regulations at 16
TAC 12.395(b)(3)(B). These regulations require that trees and shrubs
counted in determining the success of stocking be in place for not less
than two growing seasons. At the time of bond release, at least 80
percent of the trees and shrubs used to determine the success of
stocking must have been in place for 60 percent of the applicable
minimum period of responsibility. Texas' requirements for tree and
shrub stocking are consistent with the Federal requirements at 30 CFR
816.116(b)(3)(ii) and 817.116(b)(3)(ii). We agree that restocking of
woody species is allowed under both the State and Federal regulations,
as long as the time and quantity of restocking is in compliance with
the regulations. Therefore we are approving this guideline.
6. Section VI. Non-Normal and Unacceptable Husbandry Practices or
Augmentation. In Section VI, Texas lists those activities that are
considered unacceptable husbandry practices. The activities include:
reseeding of areas devoid of vegetation due to acid mine soils;
irrigation; supplemental watering of herbaceous vegetation and
supplemental watering of large woody stock later than two years after
planting; all application and incorporation of alkaline amendments,
except for non-excessive application; and excessive application of
plant nutrients. If any of the listed practices are performed, the
extended responsibility period for the affected areas will restart.
Texas does not consider practices required to address problems that
arise from mining-related activities as normal husbandry practices.
Texas will use information from field inspection reports and mine-soil
chemical analysis data to evaluate unacceptable husbandry practices or
augmentation. We agree that the activities listed in this section are
not normal husbandry practices and that they should not be allowed
without extending the period of responsibility for revegetation success
and bond liability. Therefore, we find that Section VI is not
inconsistent with the Federal regulations for normal husbandry
practices at 30 CFR 816.116(c)(4) and 817.116(c)(4).
7. Section VII. Literature Cited. This section provides a listing
of the literature used in developing the guideline document. We find
that this section is not inconsistent with the Federal regulations at
30 CFR 816.116(c)(4) and 817.116(c)(r).
IV. Summary and Disposition of Comments
Public Comments
On June 1, 1999, we asked for public comments on the amendment (64
FR 19249). By letter dated June 9, 1999, the Texas Utilities Company
System (TXU) Business Services provided comments on behalf of TXU
Mining Company (TX-649.05). The TXU Business Services commented that
TXU supports the proposed amendment, and the proposed procedures and
standards provide adequate guidelines for determining revegetation
success for the release of reclamation performance bonds. The TXU
Business Services also stated that the amendment provides a clear
description of the normal husbandry practices that may be used by
permittees during the period of extended responsibility for
revegetation success and bond liability. As shown in the findings
above, we agree with the comments provided by the TXU Business
Services.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from various Federal agencies with an actual or potential
interest in the Texas program (Administrative Record No. TX-649.03). By
letter dated June 3, 1999 (Administrative Record No. TX-469.04), the
USDA-NRCS State Conservationist in Temple, Texas, asked us to note that
the amendment contained two letters from his office concurring on
specific sections of the documents. He stated
[[Page 43923]]
that the USDA-NRCS was an active participant in the development of the
documents, and he noted that the USDA-NRCS has worked with both the
Texas Railroad Commission and individual mining companies in the State
on reconstruction and reclamation of surface mined land. As indicated
by the USDA-NRCS, the amendment contains letters dated April 13, 1999,
and May 4, 1999, in which the USDA-NRCS concurs with Section V.B.4 of
Texas' revegetation success guideline document and Section V of Texas'
normal husbandry practices guideline document, respectively. As
discussed in Finding A.5.b.(2), the USDA-NRCS concurred with Texas'
guidelines for evaluation of productivity for restored prime farmland
soils, and as discussed in Findings B.5. and B.5.b, the USDA-NRCS
concurred with Texas' guidelines for repair of damaged reclaimed areas
and removal of structures.
By letter dated June 18, 1999, the U.S. Army Corps of Engineers
(Corps) commented on Texas' amendment (Administrative Record No. TX-
649.08). The Corps recommended that the proposed amendment specify all
measures in the International System of Units (SI), in lieu of the
inch-pound (IP) system. The Federal regulations at 30 CFR 816.116 and
817.116 do not require States to use the International System of Units
in their guidelines for determining revegetation success or normal
husbandry practices. Also, the standards and specifications for
revegetation developed by the USDA-NRCS, the Texas Agricultural
Extension Services, major universities, and other recognized sources
use the inch-pound system. However, we will give a copy of the comments
to Texas for its consideration when developing future amendments.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
agreement from the EPA for those provisions of the 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 provisions in this
amendment pertain to air or water quality standards. Therefore, we did
not ask the EPA to agree on the amendment.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record No. TX-649.01). The EPA
did not respond to our request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On May 21, 1999, we requested comments on Texas' amendment
(Administrative Record No. TX-649.02), but neither responded to our
request.
V. Director's Decision
Based on the above findings, we approve the amendment as sent to us
by Texas on May 13, 1999, and as revised on June 30, 1999.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 943, which codify decisions concerning the Texas
program. We are making this final rule effective immediately to
expedite the State program amendment process and to encourage Texas to
bring its program into conformity with the Federal standards. SMCRA
requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12866
The Office of Management and Budget (OMB) exempts this rule from
review under Executive Order 12866 (Regulatory Planning and Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, 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 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on State regulatory
programs and program amendments 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.
National Environmental Policy Act
This rule does not require an environmental impact statement since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on State regulatory program provisions do not constitute
major Federal actions within the meaning of section 102(2)(C) of the
National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
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.).
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 which is the subject of this rule is based upon
corresponding 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. Therefore, this rule will ensure that existing requirements
previously published 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 corresponding Federal regulations.
Unfunded Mandates
OSM has determined and certifies under the Unfunded Mandates Reform
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of
$100 million or more in any given year on local, state, or tribal
governments or private entities.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 28, 1999.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 943 is amended
as set forth below:
PART 943--TEXAS
1. The authority citation for Part 943 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 943.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 943.15 Approval of Texas regulatory program amendments.
* * * * *
[[Page 43924]]
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * *
* * *
May 13, 1999.................. August 12, 1999.. Procedures and
Standards for
Determining
Revegetation Success
on Surface-Mined
Lands in Texas;
Normal Husbandry
Practices for
Surface-Mined Lands
in Texas.
------------------------------------------------------------------------
[FR Doc. 99-20840 Filed 8-11-99; 8:45 am]
BILLING CODE 4310-05-P
