[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62917-62935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29982]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 944
[SPATS No. UT-037-FOR]
Utah 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 a proposed amendment to the Utah regulatory program
(hereafter, the ``Utah program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or ``the Act''). Utah proposed changes
to definitions and engineering and hydrology provisions in its rules
about subsidence control plans, subsidence control, and water
replacement. Utah intended to revise its program to be consistent with
the corresponding Federal regulations.
EFFECTIVE DATE: December 4, 2001.
FOR FURTHER INFORMATION CONTACT: James F. Fulton, Chief, Denver Field
Division; telephone: (303) 844-1424; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Utah 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 Utah Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, `` * * * a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Utah
[[Page 62918]]
program on January 21, 1981. You can find background information on the
Utah program, including the Secretary's findings, the disposition of
comments, and the conditions of approval of the Utah program in the
January 21, 1981, Federal Register (46 FR 5899). You also can find
later actions concerning Utah's program and program amendments 30 CFR
944.15 and 944.30.
II. Submission of the Proposed Amendment
By letter dated March 20, 1998 (administrative record number UT-
1103), Utah sent to us an amendment to its program (SPATS No. UT-037-
FOR, administrative record number 1105) under SMCRA (30 U.S.C. 1201 et
seq.). Utah sent the amendment in response to a June 5, 1996, letter
(administrative record number UT-1083) that we sent to the State in
accordance with 30 CFR 732.17(c).
Changes to the Utah Administrative Rules (Utah Admin. R.) that the
State proposed included: Adding definitions for ``material damage,''
``non-commercial building,'' ``occupied residential dwelling and
structures related thereto,'' ``replacement of water supply,'' and
``State-appropriated water supply'' at Utah Admin R. 645-100-200;
adding requirements at Utah Admin. R. 645-301-525.100 through -525.130
for pre-subsidence surveys; removing existing requirements for
subsidence control plans at Utah Admin. R. 645-301-525 through -
525.170; recodifying rules at Utah Admin. R. 645-301-525.200 through -
525.240 pertaining to protected areas; removing existing requirements
for subsidence control at Utah Admin. R. 645-301-525.200 through -
525.232; adding requirements at Utah Admin. R. 645-301-525.300 through
-525.490 for subsidence control and subsidence control plans; adding
requirements for subsidence damage repair at Utah Admin. R. 645-301-
525.500 through -525.530; adding a rebuttable presumption of causation
by subsidence at Utah Admin. R. 645-301-525.540 through -525.545;
adding provisions at Utah Admin. R. 645-301-525.550 for adjusting bond
amounts for subsidence damage; recodifying rules at Utah Admin. R. 645-
301-525.600 and 645-301-525.700 that require compliance with approved
subsidence control plans and public notice of proposed mining,
respectively; removing existing provisions for surveys of renewable
resource lands at Utah Admin. R. 645-301-724.600; adding a provision at
Utah Admin. R. 645-301-728.350 for finding whether underground coal
mining and reclamation activities might contaminate, diminish or
interrupt State-appropriated water; and adding a requirement at Utah
Admin. R. 645-301-731.530 for replacing State-appropriated water
supplies that are contaminated, diminished, or interrupted by
underground coal mining activities.
We announced receipt of the proposed amendment in the April 8,
1998, Federal Register (63 FR 17138). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy (administrative record
number UT-1108). We did not hold a public hearing or meeting because
nobody requested one. The public comment period ended on May 8, 1998.
We received comments from two law firms on behalf of a special service
district, a water conservancy district, an irrigation company, and a
water users association. We also received comments from a mining
association, the State Historic Preservation Officer, and two Federal
agencies.
During our review of the amendment, we identified a concern
relating to Utah's use of the undefined term ``underground mining
activities'' at proposed Utah Admin. R. 645-301-731.530, which is
entitled ``State-appropriated water supply.'' We discussed our concern
with Utah in telephone conversations on April 29 and May 11, 1998
(administrative record numbers UT-1111 and UT-1113, respectively).
Utah formally responded in a letter dated May 13, 1998, that its
use of the undefined term was an oversight (administrative record
number UT-1115). In the same letter, the State committed to replacing
the undefined term ``underground mining activities'' with its defined
term ``underground coal mining and reclamation activities'' in its
rules, though its May 13 letter was sufficient to revise the proposed
amendment. Based on Utah's response, we decided that reopening the
comment period was not necessary and continued our review of the
amendment. Utah promulgated a rule that includes the defined term on
September 30, 1998 (Utah Division of Administrative Rules (DAR) file
number 21334).
We completed our review of the amendment and the comments we
received and identified five topics of concern. Two of those topics
involved pre-subsidence surveys and contents of subsidence control
plans. They appeared to require changes in Utah's proposed rules. The
remaining three topics required additional clarification from Utah on
the scope of the terms ``State-appropriated water'' and ``State-
appropriated water supply,'' the scope of water replacement with
respect to ``developed'' water supplies, and of the proposed definition
of ``replacement of water supply.'' We notified Utah of our concerns in
a letter dated October 1, 1998 (administrative record number UT-1125).
In a letter dated July 8, 1999 (administrative record number UT-
1131), Utah notified us that the Huntington-Cleveland Irrigation
Company filed a civil action in the State's Seventh Judicial District
Court challenging the proposed water replacement rules included in this
amendment. At Utah's request, we suspended our review of the amendment
while the State addressed the legal and technical issues involved in
that litigation.
On December 22, 1999, we suspended certain Federal regulations
pertaining to subsidence in relation to underground mining as a result
of the April 27, 1999, decision of the U.S. Court of Appeals for the
District of Columbia in National Mining Association v. Babbitt, 173
F.3d 906 (1999). We suspended the part of 30 CFR 784.20(a)(3) that
required a pre-subsidence survey of certain structures within an angle
of draw unless the permit applicant was denied access to do such a
survey by the structure owner(s). We also suspended 30 CFR
817.121(c)(4) (i) through (iv) in their entirety. Those regulations
established an angle of draw and created a rebuttable presumption that
subsidence damage to structures protected under section 2504 of the
Energy Policy Act of 1992 (Pub.L. 102-486, 106 Stat. 2776; hereafter
``EPAct''), and section 720 of SMCRA (as revised by EPAct) within an
area defined by an angle of draw was caused by the underground mining
operation. We notified Utah of the suspension by electronic mail on
December 22, 1999, and included the December 22, 1999, Federal Register
notice of that suspension with our message (64 FR 71652; administrative
record number 1132).
In a letter dated September 1, 2000 (administrative record number
UT-1144), Utah asked us to resume our review of the amendment, noting
that litigation of the proposed water replacement rules would continue.
The State also committed to respond to our October 1, 1998, issue
letter.
Utah responded to our October 1, 1998, letter with a letter dated
October 31, 2000 (administrative record number 1145). The State revised
two proposed rules in its amendment and provided additional
clarification on three topics. However, the State's response showed
[[Page 62919]]
that it did not revise its proposed amendment in light of our December
22, 1999, suspension of 30 CFR 784.20(a)(3) and 817.121(c)(4) (i)
through (iv). We discussed this with Utah in a telephone conversation
on November 8, 2000 (administrative record number 1146), at which time
the State agreed to consider whether it would revise its amendment in
light of our suspension of those Federal regulations. A follow-up
telephone conversation of November 21, 2000 (administrative record
number UT-1148), confirmed that Utah wanted us to review the amendment
as originally submitted on March 20, 1998, corrected on May 13, 1998,
and addressed in its October 31, 2000, response to our issue letter
without further revisions related to our suspension of the Federal
regulations.
We announced receipt of revisions to the amendment in the February
20, 2001, Federal Register (66 FR 10866; administrative record number
UT-1157). In the same document, we reopened the public comment period
for 15 days to provide for review of the changes and additional
information Utah included in its October 31, 2000, response letter. The
extended comment period closed on March 7, 2001.
III. Director's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 731.17. We are
approving the amendment as described below.
A. Minor Revisions to Utah's Administrative Rules
Utah proposed minor recodification changes to the following
previously approved rules (with the counterpart Federal regulations
shown in parentheses):
Utah Admin. R. 645-301-525.240 through -525.270, areas protected
from underground mining and subsidence, recodified as 645-301-525.200
through -525.240 (30 CFR 817.121(d) through (g));
Utah Admin. R. 645-301-525.220, compliance with approved subsidence
control plan, recodified as 645-301-525.600 (30 CFR 817.121(a)(3)(b));
and
Utah Admin. R. 645-301-525.300, public notice of proposed mining,
recodified as 645-301-525.700 (30 CFR 817.122).
Because these changes are minor and non-substantive in nature, we
find that they will not make Utah's rules less effective than the
corresponding Federal regulations.
B. Revisions to Utah's Administrative Rules That Have the Same Meaning
as the Corresponding Provisions of the Federal Regulations
Utah proposed revisions to the following rules containing language
that is the same as, or similar to, the corresponding Federal
regulations (which are listed in parentheses):
Utah Admin. R. 645-100-200, addition of new definitions of
``material damage'' and ``occupied residential dwelling and structures
related thereto'' (30 CFR 701.5);
Utah Admin. R. 645-301-525.300 through -525.313, addition of new
subsidence control provisions for preventing or minimizing damage,
replacing existing Utah Admin. R. 645-301-525.200 and -525.210, which
are removed (30 CFR 817.121(a)(1) through (a)(3));
Utah Admin. R. 645-301-525.410, new requirement for a description
in the subsidence control plan of the coal removal method, replacing
the existing provision at Utah Admin. R. 645-301-525.110, which is
removed (30 CFR 784.20(b)(1));
Utah Admin. R. 645-301-525.420, new requirement for a map to be in
the subsidence control plan showing underground workings where planned
subsidence is expected and identifying areas where subsidence will be
minimized and where subsidence-related damage will be minimized and
corrected (30 CFR 784.20(b)(2));
Utah Admin. R. 645-301-525.430, new requirement for a description
to be in the subsidence control plan of physical conditions affecting
subsidence, replacing existing Utah Admin. R. 645-301-525.120, which is
removed (30 CFR 784.20(b)(3));
Utah Admin. R. 645-301-525.440, new requirement for a description
to be in the subsidence control plan of subsidence monitoring to be
done, replacing existing Utah Admin. R. 645-301-525.140, which is
removed (30 CFR 784.20(b)(4));
Utah Admin. R. 645-301-525.450 through -525.460, new requirement
for a description to be in the subsidence control plan of subsidence
control measures, replacing existing Utah Admin. R. 645-301-525.130
through -525.134 and Utah Admin. R. 645-301-525.150, which are removed
(30 CFR 784.29(b)(5) through (b)(6));
Utah Admin. R. 645-301-525.470, new requirement for a description
to be in the subsidence control plan of methods to minimize damage from
planned subsidence (30 CFR 784.20(b)(7));
Utah Admin. R. 645-301-525.500, new section heading added for
repair of damage, replacing the existing introductory statement at Utah
Admin. R. 645-301-525.230, which is removed (30 CFR 817.121(c));
Utah Admin. R. 645-301-525.510, new rule requiring repair of
subsidence damage to surface lands, replacing existing Utah Admin. R.
645-301-525.231, which is removed (30 CFR 817.121(c)(1));
Utah Admin. R. 645-301-525.520, new rule requiring repair of, or
compensation for, subsidence damage to non-commercial buildings and
related structures, replacing, in part, existing Utah Admin. R. 645-
301-525.232, which is removed (30 CFR 817.121(c)(2)); and
Utah Admin. R. 645-301-525.545, new provision added for information
to be considered in determining the cause of damage (30 CFR
817.121(c)(4)(v)).
Because these rules contain language that has the same meaning as
the corresponding Federal regulations, we find that they are no less
effective than the Federal regulations. We also find that they satisfy
item numbers B.2 and B.4 in their entirety, and C.3, D.2, and D.3 in
part, of our June 5, 1996, 30 CFR part 732 letter.
C. Revisions to Utah's Rules That Are Not the Same as the Corresponding
Provisions of the Federal Regulations
1. Utah Admin. R. 645-100-200, Definition of ``Non-commercial
Building''
Utah proposed to add the definition of ``non-commercial building''
at Utah Admin. R. 645-100-200 as follows:
Non-commercial Building means any building, other than an
occupied residential dwelling, that, at the time the subsidence
occurs, is used on a regular or temporary basis as a public building
or community or institutional building as those terms are defined at
R645-100-200. Any building used only for commercial agricultural,
industrial, retail or other commercial enterprises is excluded.
Utah's proposed definition and the Federal definition of ``non-
commercial building'' reference definitions of the terms ``community or
institutional building'' and ``public building.'' The definition of
``public building'' at Utah Admin. R. 645-100-200 is virtually
identical to the Federal definition of ``public building'' at 30 CFR
761.5. Utah's definition of ``community or institutional building'' at
Utah Admin. R. 645-100-200 differs slightly from the Federal definition
of that term. Utah's version includes the phrase ``* * * functions
including, but not limited to * * *'' in the second clause of the
sentence in which building functions
[[Page 62920]]
are described. By including this phrase, Utah's definition includes
community or institutional buildings within the scope of non-commercial
buildings if they function as educational, cultural, historic,
religious, scientific, correctional, mental-health or physical-health
care facilities and those serving other unnamed functions as well.
Structures included in the Federal definition of ``community or
institutional buildings'' are limited to those serving the functions
specifically listed.
The effect of this difference is to extend the protections against
material damage caused by subsidence provided by Utah Admin. R. 645-
301-525.100 through -525.700 to potentially more structures than
encompassed by the Federal definition. Essentially, under Utah's
proposed definition: More buildings may be subject to pre-subsidence
surveys; permittees may be required to prevent or minimize subsidence-
related damage to more buildings; subsidence control plans may have to
describe methods to be used to minimize damage to more buildings from
planned subsidence; and more buildings may be subject to provisions for
repair or compensation for subsidence-related damage.
We note that part of the Federal regulation at 30 CFR 784.20(a)(3)
concerning pre-subsidence surveys is suspended and that 30 CFR
817.121(c)(4)(i) through (iv) concerning the rebuttable presumption of
causation by subsidence are suspended in their entirety. In part,
Utah's proposed definition invokes subsidence protections in its rules
the Federal counterparts to which are among the suspended regulations.
That does not, however, make Utah's proposed definition inconsistent
with SMCRA or less effective than the Federal regulations. Section
505(b) of SMCRA specifically states ``Any provision of any State law or
regulation in effect on the date of enactment of this Act, or which may
become effective thereafter, which provides for the control and
regulation of surface mining and reclamation operations for which no
provision is contained in this Act shall not be construed to be
inconsistent with this Act.'' This final rule describes the details of
the suspended Federal regulations and its effect on Utah's proposed
rules in greater detail in our findings concerning the State's proposed
pre-subsidence survey rules, subsidence control plan contents, and the
rebuttable presumption at parts III.C.6, III.C. 7, and III.C.9,
respectively.
Based on the reasoning we described above, Utah's proposed
definition of ``non-commercial building'' is no less effective than the
counterpart Federal definition and is not inconsistent with SMCRA. It
also satisfies item B.3 of our June 5, 1996, 30 CFR part 732 letter.
2. Utah Admin. R. 645-100-200, Definition of ``State-Appropriated Water
Supply''
Utah proposed the definition of ``State-appropriated water supply''
at Utah Admin. R. 645-100-200 as follows:
State Appropriated Water Supply'' means State-created water
rights which are recognized under the provisions of the Utah Code.
The terms ``State-appropriated water supply'' and ``drinking, domestic
or residential water supply'' are different terms used in Utah's
proposed rules and the Federal regulations, respectively, in the same
context. Utah refers to ``State-appropriated water supply'' in its
permit application rules for subsidence control plans and for probable
hydrologic consequences determinations related to underground coal
mining and reclamation activities at Utah Admin. R. 645-301-525 and
645-301-728.350. Utah also uses the term in its water replacement
performance standard for underground mining activities at Utah Admin.
R. 645-301-731.530. The Federal regulations use the term ``drinking,
domestic or residential water supply'' in the permit application
regulations for probable hydrologic consequence determinations related
to underground mining activities and for subsidence control plans at 30
CFR 784.14(e)(3)(iv) and 784.20(a). They also use this term in the
underground mining performance standards for water replacement at 30
CFR 817.41(j).
Utah's proposed definition of ``State-appropriated water supply''
is based on its use of the term ``State-appropriated water'' at Utah
Code Annotated (UCA) 40-10-18(15)(c). As written in that section of the
Code,
Subject to the provisions of Section 40-10-29, the permittee
shall promptly replace any State-appropriated water in existence
prior to the application for a surface coal mining and reclamation
permit, which has been affected by contamination, diminution, or
interruption resulting from underground coal mining operations.
The Federal counterpart statutory provision is found at section
720(a)(2) of SMCRA, as amended by the Energy Policy Act of 1992. It
provides for replacement of ``any drinking, domestic, or residential
water supply from a well or spring'' rather than ``any State-
appropriated water.''
In a January 29, 1997, letter clarifying the proposed use of the
term ``State-appropriated water'' at UCA 40-10-18(15)(c) in amendment
UT-035-FOR (administrative record number UT-1094), the State noted that
it conferred and agreed with Utah water users and coal operators on use
of that term. Utah wrote:
It appears to DOGM that the ``subject to'' clause in the
proposed bill more logically should be read as a deliberate cross-
reference to subsection 1 of Utah Code 40-10-29, which subsection
states:
``(1) Nothing in this chapter shall be construed as affecting in
any way the right of any person to enforce or protect, under
applicable law, his interest in water resources affected by a
surface coal mining operation.''
Id. In other words, the water users want the ``subject to'' clause
because they want to make absolutely clear that the new water
replacement provisions in the Utah Coal Program supplement, rather
than replace, any other common law or statutory remedies otherwise
available to them. Stated otherwise, the water users are happy to
get a new SMCRA-inspired statutory remedy for water replacement, but
they do not want to give up other water resource protection
remedies, if any, which they may already have under applicable water
law. [Utah] does not think Congress intended to deprive water users
of other existing remedies. Therefore, the ``subject to'' clause
clearly does not make the Utah proposal less stringent than Section
720(a) of SMCRA.
The SMCRA counterpart to UCA 40-10-29(1) is found at section
717(a).
Utah further explained that existing statutes at Title 73 of the
Utah Code Annotated govern all waters of the State. Utah wrote:
Under Utah water law, a person or entity cannot be a
``legitimate'' water user if he/she/it is using water that has not
been appropriated by the State. The deliberately broad phrase ``any
state-appropriated water'' covers the ``* * * universe of legal Utah
water uses by the universe of legal water users.''
Utah asserted that use of ``State-appropriated water'' in its
statute, therefore, provided broader water replacement protection than
the Federal provision for underground mining activities which is
limited to ``drinking, domestic or residential water supply'' from a
well or spring. For example, Utah noted that State-appropriated
agricultural irrigation and industrial water must be replaced under its
provision. We agreed with Utah and approved the State's use of ``State-
appropriated water'' at UCA 40-10-18(15)(c) as no less stringent than
section 720(a)(2) of SMCRA (62 FR 41845, August 4, 1997; finding number
7).
[[Page 62921]]
We received public comments on amendment UT-037-FOR that questioned
the scope of Utah's proposed water replacement provisions
(administrative record number UT-1112). One commenter specifically
wrote that
Utah Code Ann. Sec. 40-10-18 is not limited to water ``supply''
but all state-appropriated water. Also, many water rights in Utah,
including those in coal mining areas, predate statehood and thus are
not state-created, but are recognized by Utah law.
The comment raised a question concerning the State's January 29,
1997, clarification that ``State-appropriated water'' covers all legal
uses of water in Utah. It also prompted the need for clarification of
Utah's proposed definition of ``State-appropriated water supply'' in
this amendment.
We have previously said that section 717(a) of SMCRA requires
deference to State water law on questions of water allocation and use
(See 60 FR 16722, 16733; March 31, 1995). Utah's definition of ``State-
appropriated water supply'' defers to existing State law in its
recognition of State-created water rights. In its October 31, 2000,
letter, Utah explained that, under UCA 73-3-5, the State can recognize
water claims established by diversion (``diligence rights'') before
statehood and before the State Engineer's office was established. As a
result, the scope of ``State-appropriated water'' includes territorial
water rights (Utah provided this explanation in response to a question
we asked in our October 1, 1998, letter that was prompted by a public
comment. See Part IV.1 of this final rule for that discussion of ``pre-
statehood'' water rights). Utah asserts that ``State-appropriated water
supply'' includes all legal water uses and that all legal uses of water
in Utah must be appropriated by the State under provisions of the Utah
Code. The term therefore includes water from wells and springs and any
appurtenant delivery systems providing water for direct human
consumption or household use as does the Federal definition of
``drinking, domestic or residential water supply.'' It also extends
protection to other water uses not included in the Federal definition
of the term ``drinking, domestic or residential water supply,'' such as
water used only for agricultural or industrial needs.
Based on the State's explanation that the term ``State-appropriated
water supply'' encompasses the ``universe of legal water uses by the
universe of legal water users'' in Utah, we find Utah's proposed
definition of ``State-appropriated water supply'' at Utah Admin. R.
645-100-200 to be no less effective than the Federal definition of
``drinking, domestic or residential water supply'' at 30 CFR 701.5. It
also satisfies item B.1 of our June 5, 1996, 30 CFR part 732 letter.
3. Utah Admin. R. 645-100-200, Definition of ``Replacement of Water
Supply''
Utah proposed the definition of ``replacement of water supply'' at
Utah Admin. R. 645-100-200 as follows:
``Replacement of Water Supply'' means, with respect to State-
appropriated water supplies contaminated, diminished, or interrupted
by coal mining and reclamation operations, provision of water supply
on both a temporary and permanent basis equivalent to premining
quantity and quality. Replacement includes provision of an
equivalent water delivery system and payment of operation and
maintenance costs in excess of customary and reasonable delivery
costs for premining water supplies.
(a) Upon agreement by the permittee and the water supply owner,
the obligation to pay such operation and maintenance costs may be
satisfied by a one-time payment in an amount which covers the
present worth of the increased annual operation and maintenance
costs for a period agreed to by the permittee and the water supply
owner.
(b) If the affected water supply was not needed for the land use
in existence at the time of loss, contamination, or diminution, and
if the supply is not needed to achieve the postmining land use,
replacement requirements may be satisfied by demonstrating that a
suitable alternative water source is available and could feasibly be
developed. If the latter approach is selected, written concurrence
must be obtained from the water supply owner.
Under Utah's proposed definition, those water supplies subject to
being replaced are State-appropriated water supplies contaminated,
diminished, or interrupted by coal mining and reclamation operations.
The Federal definition is similar but differs by extending replacement
protection to ``protected water supplies'' that are adversely affected
by ``coal mining operations.''
As explained in the previous finding at Part III.C.2 of this final
rule, the State's proposed definition of ``State-appropriated water
supply'' at Utah Admin. R. 645-100-200 includes the same water supplies
that are included under the Federal counterpart definition of
``drinking, domestic or residential water supply'' at 30 CFR 701.5. In
addition, as Utah explained in its January 29, 1997, clarification
(administrative record number UT-1094), the State's term includes other
water supplies such as water for agricultural and industrial needs. The
term ``protected water supplies'' used in the Federal definition of
``replacement of water supply'' is not defined. However, the
performance standard for water replacement at 30 CFR 817.41(j)
identifies water supplies to be replaced as ``* * * any drinking,
domestic or residential water supply that is contaminated, diminished,
or interrupted by underground mining activities * * *.'' Such water
supplies are included in Utah's definition of ``State-appropriated
water supply'' as supported by the underlying definition of ``State-
appropriated water'' in UCA 40-10-18(15)(c). In its January 29, 1997,
clarification, the State further explained that ``State-appropriated
water'' includes all legal water uses in Utah.
Utah's proposed definition of ``replacement of water supply''
requires replacement of an adversely affected ``State-appropriated
water supply,'' which, in turn, is based on the term ``State-
appropriated water'' as used at UCA 40-10-18(15)(c). That statutory
provision addresses replacement of water adversely affected by
underground coal mining operations. Utah clarified the scope of the
term ``State-appropriated water'' in its January 29, 1997, letter as
covering all legitimate water uses, including State-appropriated
agricultural irrigation and industrial water. However, defining
``replacement of water supply'' in terms of ``State-appropriated water
supply'' appeared to establish the scope of ``replacement of water
supply'' in terms of underground coal mining operations only. As we
explained in the preamble to the final rule approving the Federal
counterpart definition of ``replacement of water supply'' (60 FR 16722,
16726; March 31, 1995), the Federal definition applies to underground
and surface coal mining operations that affect water supplies. Our
explanation added that the final rule is intended to apply to
replacement of water supply under sections 717(b) and 720(a)(2) of
SMCRA, which are the Federal counterparts to UCA 40-10-29(2) and 40-10-
18(15)(c), respectively. Reference to ``protected water supplies'' in
the Federal definition of ``replacement of water supply'' is broad
enough to include water adversely affected by surface and underground
operations.
In our October 1, 1998, letter (administrative record number UT-
1125), we asked Utah to clarify its proposed definition of
``replacement of water supply.'' We specifically asked Utah to clarify
whether its term, as proposed to require replacement of adversely
affected State-appropriated water supplies, requires replacement of
water adversely affected by surface and underground coal mining
operations
[[Page 62922]]
under UCA 40-10-18(15)(c) and 40-10-29(2).
Utah responded to our request for clarification in its October 31,
2000, letter (administrative record number UT-1145). In its response,
Utah wrote:
The provisions for the replacement of water supplies that are
made under the definition of ``Replacement of Water Supply'' at
R645-100-200 are made for water supplies that are contaminated,
diminished, or interrupted by coal mining and reclamation operations
(emphasis added) which is a defined term also located at R645-100-
200. Thus, the replacement of water supply(ies) as contemplated
under the definition by the same name does include the replacement
of water supplies affected by both surface and underground mining.
Utah's use of the term ``coal mining and reclamation operations'' in
its proposed definition of ``replacement of water supply'' differs from
the Federal term's definition but is consistent with it because it
includes the same mining activities and effects, including ``activities
conducted on the surface of lands in connection with a surface coal
mine * * *.''
We received public comments concerning the scope of Utah's proposed
water replacement rules in amendment UT-037-FOR (administrative record
number UT-1112). Several comments suggested expanding Utah's water
replacement provisions and are addressed under Part IV of this final
rule.
In responses to comments the State received during its rulemaking
process, Utah explained that it intends to require replacement of
``developed'' water supplies through its proposed water replacement
rules (administrative record number UT-1119). That interpretation of
the State's proposed rules does not appear to be consistent with its
January 29, 1997, letter clarifying use of the underlying term ``State-
appropriated water'' at UCA 40-10-18(15)(c). As asserted in that
letter, any State-appropriated water covers the universe of legal Utah
water uses by the universe of legal water users. Depending on what Utah
considers ``developed'' water supplies to be, we believed some waters
covered by the term ``State-appropriated water'' in the Utah Code might
not be included in the proposed definition of ``State-appropriated
water supply'' or covered by various rules incorporating that term
throughout the proposed amendment.
In our October 1, 1998, letter, we asked Utah to describe what
constitutes a ``developed'' water supply in its interpretation of its
proposed rules. We also asked Utah to clarify how its interpretation is
consistent with its interpretation of the term ``State-appropriated
water'' at UCA 40-10-18(15)(c). Utah responded to our request for
clarification in its October 31, 2000, letter by stating, ``The
Division interprets that a ``State-Appropriated Water Supply'' includes
the drinking, domestic, and residential water supplies of a water
user.''
As we explained above and in our finding for the proposed
definition of ``replacement of water supply,'' the State's proposed
definition of ``State-appropriated water supply'' at Utah Admin. R.
645-100-200 includes the same water supplies included under the Federal
definition of ``drinking, domestic or residential water supply'' at 30
CFR 701.5. Utah also explained in its January 29, 1997, clarification
that its term includes other water supplies such as those supplying
water for agricultural or industrial needs. The scope of water supply
replacement under Utah's proposed definition of ``replacement of water
supply'' is potentially broader than that provided by the Federal
definition of ``replacement of water supply'' by virtue of the State's
use of the term ``State-appropriated water supplies'' to identify water
supplies subject to being replaced if contaminated, diminished, or
interrupted by ``coal mining and reclamation operations.''
For these reasons, we find Utah's proposed definition of
``replacement of water supply'' is no less effective than the Federal
definition. It also satisfies item B.5 of our June 5, 1996, 30 CFR part
732 letter.
4. Utah Admin. R. R645-301-525.100 through -525.130, Pre-subsidence
Surveys
Utah proposed to delete the introductory statement at Utah Admin.
R. 645-301-525 as well as its existing survey provisions at Utah Admin.
R. 645-301-525.100 and 645-301-724.600. The State proposes to replace
those rules with new rules introducing the subsidence control plan
provisions in general and the pre-subsidence survey provisions at Utah
Admin. R. 645-301-525 through -525.130.
In proposed section R645-301-525.100, Utah introduces the
subsections on subsidence control plans and pre-subsidence survey
requirements as pertaining to ``underground coal mining and reclamation
activities.'' Use of that term is consistent with Utah's definition of
the same term at R645-100-200. Though the Federal regulation at 30 CFR
784.20 does not contain a similar qualifying statement, part 784 of the
30 CFR regulations is entitled, ``UNDERGROUND MINING PERMIT
APPLICATIONS--MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN''
and includes section 784.20.
Utah's proposed section R645-301-525.110 differs from the Federal
counterpart regulation at 30 CFR 784.20(a)(1) in two ways. First, it
refers to a larger map scale required, if necessary, by the
``Division'' as compared to ``the regulatory authority'' in the Federal
regulations. Second, it requires such maps to show the location and
type of ``State-appropriated water'' compared to the Federal term,
``drinking, domestic, and residential water supplies.'' The Division
[of Oil, Gas and Mining] is the regulatory authority in Utah. As we
explained in our finding for Utah's proposed definition of ``State-
appropriated water supply'' at Part III.C.2 of this final rule, the
State's use of this term is based its use of the term ``State-
appropriated water'' in the statutory provision for water replacement
at Utah Code Annotated 40-10-18(15)(c). We approved Utah's use of
``State-appropriated water'' in the Utah Code as no less stringent than
the term ``drinking, domestic, or residential water supply'' at section
720(a)(2) of SMCRA in the August 4, 1997, final rule Federal Register
(62 FR 4185).
The requirement at proposed Utah Admin. R. 645-301-525.120 for a
narrative indicating if subsidence could materially damage or diminish
the value or use of structures or renewable resource lands or adversely
affect water supplies differs from the counterpart Federal regulation
at 30 CFR 784.20(a)(2) only in Utah's use of the term ``State-
appropriated water supplies.'' As explained above, we find this term to
be no less effective than the counterpart Federal term ``drinking,
domestic or residential water supplies.''
Proposed Utah Admin. R. 645-301-525.130 requires a survey of the
quantity and quality of all ``State-appropriated water supplies''
within the permit and adjacent areas that could be contaminated,
diminished, or interrupted by subsidence. The counterpart Federal
regulation also requires such a survey, but of the quantity and quality
of ``drinking, domestic, or residential water supplies.'' As explained
above, we find this term to be no less effective than the Federal term
``drinking, domestic or residential water supplies.''
This same proposed rule also requires a permittee to give written
notification to property owners who deny access to conduct surveys of
buildings, dwellings, other structures, and water supplies of the
effect denial will have as ``described
[[Page 62923]]
in R645-301-525.543.'' Utah's original amendment contained a reference
to Utah Admin. R. 645-301-525. In our October 1, 1998, letter
(administrative record number UT-1125), we notified Utah of our concern
that its reference should be more specific to ensure that applicants
provide sufficient notice to owners that there will be no presumption
of causation by subsidence if the owners deny applicants access to
perform pre-subsidence surveys. Utah responded in its October 31, 2000,
letter (administrative record number UT-1145) by changing the reference
to cite Utah Admin. R. 645-301-525.543. The referenced rule provides
that a rebuttable presumption does not exist if the permittee is denied
access to conduct a pre-subsidence survey. Under proposed Utah Admin.
R. 645-301-525.541, if material damage occurs to any noncommercial
building, occupied residential dwelling, or related structure as a
result of earth movement within the angle of draw from the outer
boundary of underground mine workings to the land surface, a rebuttable
presumption exists that the permittee caused the damage. Though the
presumption can be rebutted, if it is not, the permittee must repair or
compensate property owners for such damage under proposed Utah Admin.
R. 645-301-525.520. Utah committed to promulgating the change proposed
in its October 31, 2000, letter in its formal rulemaking process.
Proposed Utah Admin. R. 645-301-525.130 also requires permittees to
give copies of the pre-subsidence survey and any technical assessment
or engineering evaluation to the property owner and the ``Division.''
The Federal regulation at 30 CFR 784.20(a)(3) requires copies to be
given to the property owner and the ``regulatory authority,'' which is
the Division in Utah's case.
We note that the State based proposed Utah Admin. R. 6445-301-
525.130 on the Federal regulation at 30 CFR 784.10(a)(3), part of which
we suspended after our initial review of Utah's amendment. The last
sentence of 30 CFR 784.20(a)(3) states ``* * * the requirements to
perform a survey of the condition of all noncommercial buildings or
occupied residential dwellings and structures related thereto, that may
be materially damaged or for which the reasonably foreseeable use may
be diminished by subsidence, within the areas encompasses by the
applicable angle of draw is suspended per court order.''
In its April 27, 1999, decision in National Mining Association v.
Babbitt, 173 F.3d 906 (1999), the United States Court of Appeals for
the District of Columbia vacated certain parts of the Federal
subsidence regulations that were among those published on March 31,
1995, under SMCRA and section 2504 of the Energy Policy Act of 1992
(``EPAct;'' Pub. L. 102-486, 106 Stat.2776 (1992)). EPAct added a new
section 720 to SMCRA. Section 720 requires underground mine operators
to repair or to compensate for material damage to residential
structures and noncommercial buildings, and to replace drinking,
domestic, or residential water supplies adversely affected by
underground mining. The Federal regulation at 30 CFR 817.121(c)(4)(i)
through (iv) provided that, if damage to any non-commercial building or
occupied residential dwelling or related structures occurred as a
result of earth movement in an area determined by projecting a specific
angle of draw from the outer-most boundary of any underground mine
workings to the surface of the land, a rebuttable presumption would
exist that the permittee caused the damage. The presumption typically
would have applied to a 30-degree angle of draw. The Court of Appeals
vacated 30 CFR 817.121(c)(4)(i) through (iv) in their entirety. As we
explained in the December 22, 1999, Federal Register (64 FR 71652), ``*
* * the Court rejected the Secretary's contention that the angle of
draw concept was reasonably based on technical and scientific
assessments and that it logically connected the surface area that could
be damaged from earth movement to the underground mining operation. The
angle of draw provided the basis for establishing the surface area
within which the rebuttable presumption would apply * * *.'' The Court
held that the angle of draw was irrationally broad and that the
scientific facts presented did not support the logical inference that
damage to the surface area would be caused by earth movement from
underground mining within the area.
Based on the conclusion that there was no scientific or technical
basis provided for establishing a rational connection between the angle
of draw and surface area damage, the Court further concluded that the
rebuttable presumption failed. Essentially, the Court found that ``* *
* for the presumption to be permissible, the facts would have to
demonstrate that the earth movement from the underground mining
operation `more likely than not' caused the damage at the surface * *
*.'' We suspended 30 CFR 817.121(c)(4)(i) through (iv) in the December
22, 1999, final rule to comply with the Court's decision.
The Court also vacated the part of 30 CFR 784.20(a)(3) that
required a specific structural condition survey of all EPAct-protected
structures located within an area defined by an angle of draw. As we
explained in the December 22, 1999, final rule:
* * * the Court clearly upheld the Secretary's authority to
require a pre-subsidence structural condition survey of all EPAct-
protected structures. The Court accepted the Secretary's explanation
that this specific structural condition survey was necessary, among
other requirements, in order to determine whether a subsidence
control plan would be required for the mining operation. However,
because of the Court's ruling on the ``angle of draw'' regulation
discussed above, it vacated the requirement for a specific
structural condition survey because it was tied directly to the area
defined by the ``angle of draw.''
So, in the December 22, 1999, Federal Register (Id.), we suspended the
part of 30 CFR 784.20(a)(3) that required a specific structural
condition survey of all structures protected by EPAct. The rest of that
regulation remains in force to the extent that it applies to the EPAct-
protected water supplies survey and any technical assessments or
related engineering evaluations.
Utah declined to revise its amendment in light of the suspended
Federal regulations (administrative record number UT-1148). The fact
that we suspended the part of 30 CFR 784.20(a)(3) requiring a pre-
subsidence structural condition survey of EPAct-protected structures
within the area defined by an angle of draw does not preclude Utah from
having that provision in its rules. In addition, Utah's proposal to
include such a provision in its rules does not make Utah's proposed
rule less effective than the Federal regulations or less stringent than
SMCRA. Section 505(b) of SMCRA provides that ``Any provision of any
State law or regulation in effect on the date of enactment of this Act,
or which may become effective thereafter, which provides for the
control and regulation of surface mining and reclamation operations for
which no provision is contained in this Act shall not be construed to
be inconsistent with this Act.'' The State promulgated proposed Utah
Admin. R. 645-301-525.130 on March 15, 1998. In addition, this proposed
rule provides for the control and regulation of surface mining and
reclamation operations in accordance with section 505(b) of SMCRA. 0
Therefore, based on the reasoning presented above, we find proposed
Utah Admin. R. 645-301-525 through -525.120 are no less effective than
the counterpart Federal regulations, and proposed Utah Admin. R. 645-
301-525.130 is not inconsistent with SMCRA
[[Page 62924]]
or the Federal regulations. The State's proposal to remove existing
provisions at Utah Admin. R. 645-301-525 through -525.100 and at 645-
301-724.600 is appropriate in light of the new provisions it is adding.
5. Utah Admin. R. 645-301-525.400, -525.480, and -525.490, Subsidence
Control Plan Contents
Utah proposes to add new provisions at Utah Admin. R. 645-301-
525.400 through -525.490 describing information that must be included
in subsidence control plans. It also proposes to remove existing
provisions for subsidence control plans at Utah Admin. R. 645-301-
525.110 through -525.170.
Proposed R645-301-525.400, which describes the conditions under
which a pre-subsidence survey is to be conducted and what it
information it must contain, differs somewhat from the Federal
counterpart regulation at 30 CFR 784.20(b). Utah's rule refers to
surveys conducted under ``R645-301-525.100'' where the Federal
regulation refers to surveys conducted ``under paragraph (a) of this
section.'' The Federal reference is to 30 CFR 784.20(a), which
introduces the pre-subsidence survey requirements of subsections (a)(1)
through (a)(3). Referenced R645-301-525.100, as also proposed in this
amendment, is Utah's counterpart to 30 CFR 784.20(a). Proposed R645-
301-525.400 also refers to surveying for the existence of ``State-
appropriated water supplies'' and the need for a permit application to
include a subsidence control plan if a survey shows such water supplies
exist or could be adversely affected by subsidence. As we explained
previously in this final rule, we find the State's term ``State-
appropriated water supply'' to be no less effective than the Federal
term ``drinking, domestic, or residential water supply.'' Additionally,
references in proposed R645-301-525.400 to the ``Division'' are
analogous to the counterpart Federal regulation's references to the
``regulatory authority'' because the Division is the regulatory
authority in Utah.
Proposed Utah Admin. R. 645-301-525.480 requires subsidence control
plans to include a description of measures to be taken ``in accordance
with R645-301-731.530 and R645-301-525.500 to replace adversely
affected State-appropriated water supplies or to mitigate or remedy any
subsidence-related material damage to the land and protected structures
* * *.'' The counterpart Federal regulation at 30 CFR 784.20(b)(8)
requires a description of measures taken to replace ``protected water
supplies'' and to mitigate or remedy subsidence damage to land and
protected structures in accordance with `` * * * Secs. 817.41(j) and
817.121(c) of this chapter * * *.'' Referenced Utah Admin. R. 645-301-
731.530 and 645-301-525.500 in Utah's proposed rule are the State's
counterparts to OSM's performance standards for water replacement and
surface damage repair at 30 CFR 817.41(j) and 817.121(c), respectively.
We explained previously in our finding at Part III.C.3 of this final
rule that, while the Federal regulations do not define ``protected
water supplies,'' 30 CFR 817.41(j) clearly identifies a protected water
supply subject to replacement as a ``drinking, domestic, or residential
water supply.'' We also previously found that the State's term ``State-
appropriated water supply'' is no less effective than the Federal term
``drinking, domestic, or residential water supply.''
Proposed Utah Admin. R. 645-301-525.490 requires subsidence control
plans to include other information specified by the ``Division'' as
needed to show the operation will be conducted according to R645-301-
525.200, -525.300, -525.500, and -525.6500. In comparison, the
counterpart Federal regulation at 30 CFR 784.20(b)(9) refers to the
``regulatory authority'' and to `` * * * Sec. 817.121 of this
chapter.'' As we noted above, the Division is the regulatory authority
in Utah.
In the original amendment, proposed Utah Admin. R. 645-301-525.490
only referred to Utah Admin. R. 645-301-525.300. That referenced rule
includes the State's performance standards for preventing or minimizing
subsidence-related damage under Utah Admin. R. 645-301-525.310 through
-525.313. Referenced counterpart 30 CFR 817.121 includes a much wider
range of provisions that an operation must be conducted under. Because
the State's original reference was less inclusive than the referenced
counterpart Federal regulation, we found originally proposed Utah
Admin. R. 645-525-301.490 did not ensure that the Division will be
provided with sufficient information to determine that an operation
will be conducted in accordance with all applicable provisions for
subsidence control. We notified Utah of our concern in our October 1,
1998, letter (administrative record number UT-1125), and advised the
State that its proposed rule should include a more inclusive reference.
In its October 31, 2000, response (administrative record number UT-
1145), the State revised proposed Utah Admin. R. 645-301-525.490 to
include references to Utah Admin. R. 645-301-525.200, -525.500, and -
525.600 in addition to the original reference to -525.300. These
referenced rules contain provisions analogous to those included under
30 CFR 817.121. Utah committed to promulgating this change in its
formal rulemaking process.
We note that the State based proposed Utah Admin. R. 645-301-
525.400, -525.480, and -525.490 on the need for a subsidence control
plan when indicated by the pre-subsidence survey conducted under Utah
Admin. R. 645-301-525.130. That latter rule, in turn, is based on the
Federal counterpart regulation at 30 CFR 784.20(a)(3), which is
suspended in part. The fact that we suspended the part of 30 CFR
784.20(a)(3) requiring a pre-subsidence structural condition survey of
EPAct-protected structures within the area defined by an angle of draw
does not preclude Utah from having that provision, and other provisions
based on it, in its rules. As we explained previously, Utah's proposal
to include provisions in its rules that are not found in SMCRA or the
Federal regulations does not make Utah's proposed rules less effective
than the Federal regulations or less stringent than SMCRA if those
State provisions are in effect and control and regulate surface mining
and reclamation operations in accordance with section 505(b) of SMCRA.
Based on these reasons, we find proposed Utah Admin. R. 645-301-
525.400, -525.480, and -525.490 are no less effective than the
counterpart Federal regulations and are not inconsistent with SMCRA.
The State's proposal to remove existing provisions at Utah Admin. R.
645-301-525.110 through -525.170 is appropriate in light of the new
provisions being added.
6. Utah Admin. R. 645-301-525.530, Repair or Compensation for Damage to
Other Structures
Proposed Utah Admin. R. 645-301-525.530 requires repair of, or
compensation for, subsidence-caused damage to structures or facilities
not protected by Utah Admin. R. 645-301-525.520. The Federal
counterpart regulation at 30 CFR 817.121(c)(3) provides that the
permittee ``* * * must, to the extent required under applicable
provisions of State law, * * *'' correct material subsidence damage
caused to any structures or facilities not protected ``* * * by
paragraph (c)(2) of this section * * *'' by repairing damage or
compensating owners for the decreased value resulting from subsidence.
Utah's proposed rule does not require permittees to correct damage or
compensate owners ``to the
[[Page 62925]]
extent required under applicable provisions of State law'' but says
they ``* * * shall either correct material damage from subsidence
caused to any structures or facilities not protected by paragraph
525.520 * * * '' by repairing such damage or by compensating owners for
the resulting decreased value.
Utah's proposed rule extends replacement or compensation protection
to structures and facilities not provided such protections under Utah
Admin. R. 645-301-525.520, which is based on UCA 40-10-18(15)(b)(i).
Those sections of Utah's rules and its Code, respectively, provide for
repair of damage to occupied residential dwellings and related
structures or noncommercial buildings caused by underground coal mining
after October 24, 1992. However, they do not extend such protections to
other structures damaged by subsidence as provided in proposed Utah
Admin. R. 645-301-525.530. By not including a phrase corresponding to
the phrase ``to the extent required under applicable provisions of
State law'' in the counterpart Federal regulation, proposed Utah Admin.
R. 645-301-525.530 is Utah's legal requirement that a permittee repair
or compensate for subsidence-caused material damage to structures not
protected by UCA 40-10-18(15)(b)(i) or Utah Admin. R. 645-301-525.520.
As a result, there is no need to qualify the remedies available to
owners of structures or facilities by the extent to which they are
otherwise required under applicable provisions of State law.
Other differences between the wording in the proposed State rule
and the counterpart Federal regulation do not make Utah's proposed rule
less effective. Further, the State's reference to ``525.520'' in its
proposed rule refers to Utah Admin. R. 645-301-525.520, which is Utah's
counterpart to referenced ``paragraph (c)(2) of this section,'' or 30
CFR 817.121(c)(2), in the corresponding Federal regulation.
For these reasons, we find proposed Utah Admin. R. 645-301-525.530
is no less effective than the counterpart Federal regulation. It also
satisfies item D.3 of our June 5, 1996, 30 CFR Part 732 letter.
7. Utah Admin. R. 645-301-525.540 Through -525.544, Rebuttable
Presumption of Causation by Subsidence
Proposed Utah Admin. R. 645-301-525.540 through -525.544 introduce
and establish a rebuttable presumption that damage sustained by certain
structures was caused by mining. Proposed Utah Admin. R. 645-301-
525.541 provides that, if damage occurs to any non-commercial building
or occupied residential dwelling or structure related thereto as a
result of subsidence in an area determined by an angle of draw from the
outermost boundary of any underground workings to the land surface,
there is a rebuttable presumption that the permittee caused the damage.
The angle of draw normally is 30 degrees from the vertical but may be
different if amended by the Division on a mine-specific basis under
proposed Utah Admin. R. 645-301-525.542. Proposed Utah Admin. R. 645-
301-525.543 provides for no presumption where a landowner denies a
permittee access to perform a pre-subsidence survey. Finally, proposed
Utah Admin. R. 645-301-525.544 provides that the presumption will be
rebutted if damage predated mining, was caused by something other than
subsidence, or occurred outside the surface area in which mining
actually caused subsidence.
The State based its proposed rules at Utah Admin. R. 645-301-
525.540 through -525.544 on the counterpart Federal regulations at 30
CFR 817.121(c)(4)(i) through (iv), which are suspended in their
entirety. The fact that we suspended the Federal provisions for a
rebuttable presumption of causation by subsidence at 30 CFR
817.121(c)(4)(i) through (iv) does not preclude Utah from having those
provisions in its rules. In addition, Utah's proposal to include such
provisions in its rules does not make Utah's proposed rules less
effective than the Federal regulations or less stringent than SMCRA.
Again, Utah's proposal to include provisions in its rules that are not
found in SMCRA or the Federal regulations does not make Utah's proposed
rules less effective than the Federal regulations or less stringent
than SMCRA if those State provisions are in effect and control and
regulate surface mining and reclamation operations in accordance with
section 505(b) of SMCRA.
Based on this reasoning, we find proposed Utah Admin. R. 645-301-
525.540, -525.541, -525.542, -525.543, and -525.544 are no less
effective than the counterpart Federal regulations and are not
inconsistent with SMCRA.
8. Utah Admin. R. R645-301-525.550, Adjustment of Bond Amount for
Subsidence Damage
Proposed Utah Admin. R. 645-301-525.550 adds provisions for
adjusting bond amounts when protected land, structures, or facilities
are materially damaged by subsidence or when protected water supplies
are contaminated, diminished, or interrupted. Utah's proposed rule
references land, structures, or facilities protected under Utah Admin.
R. 645-301-525.500 through -525.530. Those referenced proposed rules
address protected surface lands, non-commercial buildings, dwellings,
and related structures, and other structures or facilities. Parts III.B
and III.C.6 of this final rule contain our findings that those rules
are no less effective than the Federal regulations. The Federal
counterpart to Utah Admin. R. 645-301-525.550 is 30 CFR 817.121(c)(5).
It provides for adjusting bond amounts as a result of subsidence damage
to the same buildings, dwellings, structures and facilities but refers
to lands, buildings, structures and facilities protected under ``* * *
paragraphs (c)(1) through (c)(3) of this section * * *.'' Those
referenced paragraphs are found at 30 CFR 817.121(c)(1) through (c)(3),
which correspond to referenced Utah Admin. R. 645-301-525.500 through -
525.530.
Utah's proposed rule also provides for adjusting bond amounts when
subsidence contaminates, diminishes, or interrupts water supplies
protected under proposed Utah Admin. R. 645-301-731.530. As noted in
previous findings in this final rule, Utah identifies protected water
supplies as ``State-appropriated water supplies.'' The Federal
regulation at 30 CFR 817.121(c)(5) similarly provides for bond
adjustments when ``* * * water supplies protected under Secs. 817.41(j)
* * *'' are adversely affected by subsidence. Section 817.41(j) is the
Federal counterpart to Utah Admin. R. 645-301-731.530 and identifies a
protected water supply as a ``drinking, domestic, or residential water
supply.'' As we explained previously, Utah's term ``State-appropriated
water supply'' is no less effective than the Federal term ``drinking,
domestic, or residential water supply.''
References to the ``Division'' in Utah's proposed rule are
analogous to the Federal regulation's reference to the ``regulatory
authority'' because the Division is the regulatory authority in Utah.
For the reasons explained above, we find proposed Utah Admin. R.
645-301-525.550 is no less effective than the Federal regulation at 30
CFR 817.121(c)(5). The State's proposed rule also satisfies item D.5 of
our June 5, 1996, 30 CFR Part 732 letter.
[[Page 62926]]
9. Utah Admin. R. 645-301-728.340 and 728.350, Probable Hydrologic
Consequences (PHC) Determination
Proposed Utah Admin. R. 645-301-728.350 requires probable
hydrologic consequences determinations to find whether underground coal
mining and reclamation activities conducted after October 24, 1992,
will adversely affect State-appropriated water that exists in the
proposed permit or adjacent areas at the time a permit application is
submitted, and that is used for legitimate purposes in those areas.
The proposed rule differs from the Federal counterpart regulation
at 30 CFR 784.14(e)(3)(iv) in Utah's use of the term ``State-
appropriated water,'' reference to use of that water for ``legitimate
purposes,'' and reference to ``underground coal mining and reclamation
activities.'' Utah hydrology rules at Utah Admin. R. 645-301-700
establish requirements for information that must be included in
applications for surface and underground coal mining. Because proposed
Utah Admin. R. 645-301-728.350 pertains to a finding that must be
included in PHC determinations specific to underground mines, the
reference to ``underground coal mining and reclamation activities''
clearly identifies it as such. Similarly, adding a semi-colon at the
end of the preceding subsection at Utah Admin. R. 645-301-728.340 and
the word ``OR'' following it distinguishes proposed Utah Admin. R. 645-
301-728.350 from subsection -728.340 as a finding that must be made for
underground coal mining and reclamation activities as opposed to
surface coal mining and reclamation activities. Utah's term
``underground coal mining and reclamation activities'' includes a
reference to ``coal mining and reclamation activities'' as both are
defined at Utah Admin. R. 645-100-200. The former term is the State's
counterpart to the ``underground mining activities'' referred to in the
counterpart Federal regulations at 30 CFR 784.14(e)(3)(iv), which are
defined at 30 CFR 701.5.
The term ``State-appropriated water'' and reference to use of that
water for ``legitimate purposes'' in proposed Utah Admin. R. 645-301-
728.350 are not inconsistent with the Federal regulations. As noted in
previous findings for this amendment, Utah's statutory provision for
water replacement at Utah Code Annotated (UCA) 40-10-18(15)(c) is based
on the term ``State-appropriated water.'' As used in this proposed rule
and UCA 40-10-18(15)(c) and clarified by Utah in its January 29, 1997,
letter (administrative record number UT-1094), ``State-appropriated
water'' provides broader water replacement protection than is provided
under the corresponding term ``drinking, domestic, or residential water
supply'' used in the Federal regulation for PHC findings at
Sec. 784.14(e)(3)(iv) and protected under section 720(a)(2) of SMCRA.
Utah's proposed qualification that the water in existence at the time a
permit application is submitted be used for ``legitimate purposes''
refers back to its term ``State-appropriated water.'' To paraphrase
Utah's clarification about the term ``State-appropriated water'' in its
January 29, 1997, letter, the only legitimate use of water in Utah is
the use of water appropriated by the State. Moreover, the criterion for
legitimate water use proposed at Utah Admin. R. 645-301-728.350 for
underground mining is consistent with the requirement that PHC
determinations include findings on the impacts of surface coal mining
and reclamation activities on the source(s) of water used for domestic,
agricultural, industrial, or other legitimate purpose at Utah Admin. R.
645-301-728-340 and counterpart 30 CFR 780.21(f)(3)(iii) (emphasis
added).
Based on the reasons explained above, proposed Utah Admin. R. 645-
301-728.350 and the proposed revision to Utah Admin. R. 645-301-728.340
are not inconsistent with, and are no less effective than, the Federal
regulation at 30 CFR 784.14(e)(3)(iv). The proposed rules also satisfy
item C.1 of our June 5, 1996, 30 CFR part 732 letter.
10. Utah Admin. R. R645-301-731.530, Hydrology: Operation Plan: State-
Appropriated Water Supply
Proposed Utah Admin. R. 645-301-731.530 requires a permittee to
replace any State-appropriated water supply that is contaminated,
diminished, or interrupted by underground coal mining and reclamation
activities conducted after October 24, 1992, if the affected water
supply existed before the Division received the permit application for
the activities causing the adverse effects. It also requires use of
baseline hydrologic and geologic information required in Utah Admin. R.
645-301-700 to determine mining impacts on the water supply. Utah's
proposed rule differs from the counterpart Federal regulation at 30 CFR
817.41(j) in its use of the terms ``State-appropriated water supply,''
``underground coal mining and reclamation activities,'' and
``Division'' and by referring to Utah Admin. R. 645-301-700. The
corresponding terms in the Federal regulation are ``drinking, domestic
or residential water supply,'' ``underground mining activities,'' and
``regulatory authority.'' Also, the Federal regulation refers to
baseline hydrologic information required in 30 CFR 780.21 and 784.14
and geologic information required in sections 780.21 and 784.22.
In Part IV.A of this final rule, we describe in detail commenters'
concern for the scope of Utah's proposed water replacement rules and
their suggestion for expanding the State's water replacement provisions
(administrative record number UT-1112). As we explained above and in
previous findings in this final rule, the State's proposed definition
of ``State-appropriated water supply'' at Utah Admin. R. 645-100-200
includes those water supplies included under the Federal definition of
``drinking, domestic or residential water supply'' at 30 CFR 701.5.
Utah explained in its January 29, 1997, clarification that its term
includes other water supplies such as wells and springs that supply
water for agricultural, commercial or industrial needs. Therefore, the
scope of water supply replacement under Utah's proposed rule is
potentially broader than that provided under the Federal definition of
``replacement of water supply'' by virtue of the State's use of its
defined terms ``State-appropriated water supplies'' and ``replacement
of water supply'' in describing those water supplies subject to
replacement if contaminated, diminished, or interrupted by underground
coal mining and reclamation activities.
Utah's original (March 20, 1998) submittal of this amendment
required prompt replacement of water adversely affected by
``underground mining activities.'' While that term appears to be
identical to that in the counterpart Federal regulation, it is
undefined in Utah's rules and statute. In telephone conversations on
April 29 and May 11, 1998, we advised Utah that use of its defined term
``underground coal mining and reclamation activities'' would be more
appropriate (administrative record numbers UT-1111 and UT-1113,
respectively). The State responded with a letter dated May 13, 1998
(administrative record number UT-1115), in which it agreed to change
``underground mining activities'' to ``underground coal mining and
reclamation activities'' through formal rulemaking. Utah promulgated
the corrected rule that includes the term ``underground coal mining and
reclamation activities'' on September 30, 1998 (DAR file number 21334),
which is among those we are approving in this final rule. As defined at
Utah Admin. R. 645-100-200, ``underground coal mining and reclamation
activities'' is the State's counterpart to the Federal
[[Page 62927]]
term ``underground mining activities'' as defined at 30 CFR 701.5.
As noted previously, the Division is the regulatory authority in
Utah.
Based on the reasons explained above, we find proposed Utah Admin.
R. 645-301-731.530 is no less effective than the counterpart Federal
regulation. It also satisfies item D.1 of our June 5, 1996, 30 CFR part
732 letter.
IV. Summary and Disposition of Comments
Following are summaries of all written comments on the proposed
amendment that we received and our responses to those comments.
A. Public Comments
We asked for public comments on the proposed amendment as
originally submitted (administrative record number UT-1106) and as
revised in Utah's October 31, 2000, letter (administrative record
number UT-1156). We received six comment letters, two of which attached
comments from four water user groups.
The Utah Mining Association (UMA) responded in a May 5, 1998,
letter, by expressing its support for the proposed amendment and urging
us to approve it (administrative record number UT-1114). UMA noted that
it was actively involved in developing the State legislation that
enabled the rule changes. It explained how it worked with the State
Engineer to ensure protection of water rights throughout the
legislative process and with water users in Utah's coal regions to
develop legislative language.
We also received comments submitted by two law firms on behalf of a
special service district, a water conservancy district, an irrigation
company, and a water users association (hereafter, collectively the
``water users'') (administrative record number UT-1112). These
commenters represent water users in a predominant coal mining region of
Utah. The remaining discussions under Part IV.A of this final rule
describe the water users' comments and our responses.
A number of water user comments proposed changes to rules that are
not the subject of amendment UT-037-FOR. Those comments addressed
alternative water source information for surface coal mining and
reclamation activities, PHC findings and requirements concerning acid-
or toxic-forming materials, discharges into underground mines, and
gravity discharges. While these comments pertain to water-related
issues, we find that the rules and changes they suggested do not apply
to this rulemaking. However, we forwarded these comments to the State
for its consideration.
1. Replacement of Water Supply; State-Appropriated Water Supply; and
Water Supply
One comment described Utah's proposed definition of ``replacement
of water supply'' at Utah Admin. R. 645-100-200 as applicable only to
surface mining operations. The comment based this conclusion on Utah's
reference to State-appropriated water supplies adversely affected by
``coal mining and reclamation operations.'' It assumed that this term
in Utah Admin. R. 645-100-200 is less inclusive than the term ``coal
mining operations'' in the Federal definition of ``replacement of water
supply'' at 30 CFR 701.5.
As defined at Utah Admin. R. 645-100-200, ``coal mining and
reclamation operations'' includes activities conducted on the surface
of lands in connection with a surface coal mine and surface coal mining
and reclamation operations, as well as surface impacts incident to an
underground coal mine. The phrase ``surface impacts incident to an
underground coal mine,'' also is defined at Utah Admin. R. 645-100-200
and means all operations involved in or related to underground coal
mining and reclamation activities. It includes activities conducted on
the land surface, that alter or disturb the land surface, or that
disturb the surface, air, or water resources of the area.
The Federal counterpart to Utah's term ``coal mining and
reclamation operations'' is ``surface coal mining operations'' and is
defined at section 701(28) of SMCRA. ``Surface coal mining operations''
includes the scope of activities included in the term ``coal mining
operations'' as defined at 30 CFR 705.5 and 706.3, and included in the
Federal definition of ``replacement of water supply.'' It also includes
activities conducted on the surface of lands in connection with a
surface coal mine as well as to surface operations and surface impacts
incident to an underground coal mine. Also, as we explained in our
finding at Part III.C.3. of this final rule, Utah clarified in its
October 31, 2000, letter (administrative record number UT-1145) that
its proposed definition of ``replacement of water supply'' provides for
the replacement of water supplies adversely affected by ``coal mining
and reclamation operations.'' The latter term is defined in Utah's
rules to include surface and underground mining. For these reasons, we
found Utah's definition of ``replacement of water supply'' to be no
less effective than the Federal counterpart definition at 30 CFR 701.5.
Other comments suggested removing the word ``supply'' from Utah's
definitions of ``replacement of water supply'' and ``State-appropriated
water supply,'' and from references to water supply throughout Utah's
proposed amendment. In some cases, comments suggested replacing the
word ``supply'' or ``supplies'' with ``source'' or ``sources'' or to
add the term ``water sources.'' While the preamble to the final rule
approving the Federal definition of ``replacement of water supply''
indicates that circumstances could require replacement of a water
source (See 60 FR 16722, 16733, March 31, 1995), sections 717(b) and
720(a)(2) of SMCRA and the Federal regulations use the terms ``supply''
and ``supplies.'' The standard we use for review of Utah's program is
that it must be no less effective than the Federal regulations and no
less stringent than SMCRA. We cannot require Utah's provisions to be
more stringent than SMCRA or more effective than the Federal
regulations. Utah's use of the terms ``supply'' and ``supplies'' in its
proposed rules is consistent with use of those terms in SMCRA and the
Federal regulations. We therefore find the State's proposed rules are
no less stringent than SMCRA and no less effective than the counterpart
Federal regulations without the suggested changes.
Another comment suggested replacing the term ``water supply owner''
in Utah's proposed definition of ``replacement of water supply'' with
``water rights holder.''
Utah's use of the term ``water supply owner'' is consistent with use of
the identical term in the counterpart Federal definition of
``replacement of water supply'' at 30 CFR 701.5. The State's proposed
definition therefore is no less effective than the counterpart Federal
definition in this regard as well without the suggested change.
One comment also maintained that UCA 40-10-18 is not limited to
water ``supply'' but pertains to all State-appropriated water. It also
stressed that many water rights in Utah pre-date statehood and thus are
not State-created, but are recognized by Utah law. Sections of the
State's rules to which this comment applied include: Utah Admin. R.
645-100-200, definitions; 645-301-525.120 and 525.130, pre-subsidence
survey; 645-301-525.400 and 525.480, subsidence control plan contents;
645-301-525.550, adjustment of bond amount for subsidence damage; 645-
301-728.350, PHC determinations for underground coal mining and
reclamation activities; and 645-301-731.530, replacement of State-
appropriated water supply.
[[Page 62928]]
In our October 1, 1998, letter to Utah (administrative record
number UT-1125), we asked the State to further clarify its
interpretation of the term ``State-appropriated water'' to address the
question of whether there are legal uses of water in Utah that fall
outside the scope of ``State-appropriated water.'' We also asked Utah
to clarify its interpretation of the proposed definition of ``State-
appropriated water supply'' to address the assertion that legal water
rights exist in the State that are recognized by Utah law but are not
created by the State.
Utah responded to our request for clarification in a letter dated
October 31, 2000 (administrative record number UT-1145). In its
response, Utah said it has a process under Utah Code Annotated Section
73-5-13 [which it included in its letter] to recognize water claims
established by diversion (``diligence rights'') before the State
Engineer's office was established and before Utah became a State.
Utah's response concluded that ``State-appropriated water'' therefore
includes territorial water rights. UCA 73-5-13 is entitled, ``Claim to
surface or underground water not otherwise represented--Information
required--Corrections--Filing--Investigation--Publication--Judicial
action to determine validity--Rules.'' Subsection (1)(a) provides that:
All claimants to the right to the use of water, including both
surface and underground, whose rights are not represented by
certificates of appropriation issued by the state engineer, by
applications filed with the state engineer, by court decrees, or by
notice of claim filed pursuant to law, shall submit the claim to the
state engineer.
Subsection (2) describes the information that each claim must include,
and subsection (4) requires that:
Upon submission by a claimant of a claim that is acceptably
complete under Subsection (2) and the deposit of money by a claimant
with the state engineer sufficient to pay the expenses of conducting
a field investigation and publishing a notice of the claim, the
state engineer shall (i) file the claim; (ii) endorse the date of
its receipt; (iii) assign the claim a water right number; and (iv)
publish a notice of the claim following the same procedures as
provided in Section 73-3-6.
Subsection (4)(c) provides that ``The acceptance of any claim filed
under this section by the state engineer may not be considered to be an
adjudication by the state engineer of the validity of the claimed water
right.'' At the same time, however, the report of the State Engineer's
investigation of the claim is ``* * * admissible in any administrative
or judicial proceeding on the validity of the claim * * * '' under
subsection (5)(b)(ii).
Our finding at Part III.C.2. of this final rule describes Utah's
clarification of its term ``State-appropriated water'' at UCA 40-10-
18(15)(c). We found the definition of this term to be no less effective
than the counterpart Federal term ``drinking, domestic, or residential
water supply.'' That Federal term is based on the wording of section
720(a)(2) of SMCRA as amended by EPAct and requires replacement of
water supplies adversely affected by underground mining coal mining
operations. Our findings at Parts III.C.2, 3, 4, 5, 9 and 10 of this
final rule also explain why we find Utah's definitions and rules as
proposed with the terms water ``supply'' or ``supplies'' to be no less
effective than the Federal regulations. As we further explained at Part
III.C.2 of this final rule, and is found at UCA 40-10-29(1), this
provision supplements, but does not otherwise affect in any way,
anyone's right to protect or enforce his or her interest in water
resources affected by a coal mining operation.
In addition, Utah's rules contain other provisions to ensure
protection of surface and ground water beyond the protections afforded
by this amendment. Utah Admin. R. 645-301-728 addresses determinations
of the probable hydrologic consequences of mining on surface and
groundwater in proposed permit and adjacent areas. As required by Utah
Admin. R. 645-301-729, for each permit application, the State develops
a cumulative hydrologic impact assessment (CHIAs) of probable impacts
of mining and reclamation on surface and ground water systems in the
cumulative impact area. A CHIA also determines if proposed mining and
reclamation is designed to prevent material damage to the hydrologic
balance outside the permit area. Performance standards at Utah Admin.
R. 645-301-750 et seq. require all coal mining and reclamation
operations to be conducted to minimize disturbance to the hydrologic
balance in the permit and adjacent areas. They also require those
operations to prevent material damage to the hydrologic balance outside
the permit area and to support approved postmining land uses.
One comment suggested rewording Utah's definition of ``replacement
of water supply'' to require payment of actual delivery costs instead
of costs in excess of customary and reasonable delivery costs for
premining water supplies. As proposed in Utah's definition, such
payment pertains to operation and maintenance costs in excess of
customary and reasonable costs of premining water supply delivery. We
considered payment of costs in the preamble to the final rule approving
the Federal definition of ``replacement of water supply'' at 30 CFR
701.5 (60 FR 16722, 16726, March 31, 1995). In that discussion, we
noted that payment of costs for replacement water supply operation and
maintenance in excess of premining costs would ensure a water supply
user or owner is made whole upon installation of the replacement supply
by not passing-on to the user any additional costs beyond those that
were customary and reasonable for the premining supply. The final
Federal definition provides for payment of costs in excess of customary
and reasonable delivery costs for premining supplies. Utah's proposed
definition is no less effective than the Federal definition because it
contains the same provision for payment of costs without the change
suggested in the comment. As explained previously, the standard we use
for review of Utah's program is that it must be no less effective than
the Federal regulations and no less stringent than SMCRA. We cannot
require Utah's provisions to be more stringent than SMCRA or more
effective than the Federal regulations.
In another comment, water users suggested removing paragraph (b)
from Utah's proposed definition of ``replacement of water supply'' at
Utah Admin. R. 645-100-200. Paragraph (b) provides that demonstrating
that a suitable alternative water source is available and could
feasibly be developed will satisfy replacement requirements if the
affected supply was not needed for the existing land use when it was
lost, contaminated, or diminished, and if it is not needed to achieve
the post mine land use. If this approach is selected, written
concurrence from the supply owner must be obtained. The commenter
maintained that no statutory provision excuses a permittee from the
requirement to replace adversely affected State-appropriated water.
We considered similar comments in our preamble discussion of the
Federal definition of ``replacement of water supply'' in the March 31,
1995, final rule (Id., at 16727). We adopted the Federal definition,
including the alternative water source demonstration, to give the water
supply owner the option of foregoing installation of a delivery system
in circumstances in which the system was not wanted or needed. We
reasoned that the provision still would require all coal mining
operations to be conducted to ensure water sources remain to support
existing
[[Page 62929]]
and proposed land use by requiring the permittee to demonstrate water
availability equal to premining quality and quantity. Only a water
delivery system that would not be used for the postmining land use, and
that was not needed for the premining land use, may be waived. We
concluded that this provision ensures compliance with EPAct and section
717 of SMCRA in all essential respects, while avoiding unneeded
expense. The same reasoning applies to Utah's proposed definition of
``replacement of water supply.'' Based on this reasoning, we believe
Utah's proposed definition is no less effective than the counterpart
Federal definition at 30 CFR 701.5 without the suggested change.
Further, we cannot require Utah's provisions to be more stringent than
SMCRA or more effective than the Federal regulations.
2. Suggested Additional Definitions and Rebuttable Presumptions
Four comments submitted by water users suggested that Utah should
define a number of terms and create additional rebuttable presumptions
to provide more protection to water rights holders. The terms included:
``Promptly,'' as used to describe replacement of State-appropriated
water at UCA 40-10-18(15)(c) and proposed Utah Admin. R. 645-301-
731.530; and ``contamination of water,'' ``diminution of water,'' and
``interruption of water'' as used to describe water subject to
replacement at UCA 40-10-18(15)(c) and included in several rules in
this amendment. The comments also suggested that these additional
definitions should include rebuttable presumptions of contamination,
diminution, and interruption, respectively.
The Federal counterpart to UCA 40-10-18(15(c) is section 720(a)(2)
of SMCRA, as amended by EPAct. SMCRA does not define the terms
``promptly,'' ``contamination of water,'' ``diminution of water,'' or
``interruption of water'' as used in that section. We previously found
UCA 40-10-18(15)(c) to be no less stringent than 720(a)(2) of SMCRA and
approved it on that basis (62 FR 41845, August 4, 1997). In our
discussion of comments in the preamble to the March 31, 1995, final
rule, however, we decided that providing guidance on the issue of
timing water supply replacement would promote consistent implementation
of replacement requirements (Id., at 16727). Guidance on ``prompt''
replacement, in particular, is provided in that discussion, and we
intend it to help regulatory authorities decide if water supplies have
been ``promptly'' replaced. We explained in our finding at Part III.C.3
of this final rule that we found Utah's definition of ``replacement of
water supply'' to be no less effective than the counterpart Federal
definition at 30 CFR 701.5 as proposed by the State.
SMCRA and the Federal regulations do not require presumptions of
water contamination, diminution, or interruption. In the preamble to
the final rule approving the Federal regulation at 30 CFR 817.121(c)(4)
that established the rebuttable presumption that subsidence damaged
noncommercial buildings, dwellings, and related structures, we
considered comments suggesting a presumption of subsidence causation
for damage to water supplies (Id., at 16741; Note: This pre-dated our
suspension of 30 CFR 817.121(c)(4)(i) through (iv) on December 22,
1999). We did not establish a presumption for water supply damage
because we believe determining the cause(s) of water supply damage does
not lend itself to such a presumption. We based our conclusion, in
part, on our belief that determining the cause of damage to a water
supply from springs and wells can be much more complex than determining
the cause of damage to surface lands and structures because the
cause(s) of water supply damage can involve a potentially greater
variety of geological and hydrological formations and dynamics. At the
same time, we also concluded that a water supply owner's ability to
have an adversely affected water supply replaced will not be inhibited
by the absence of a presumption that subsidence damaged the supply. In
Utah's case, if the Division ultimately proves that a water supply has
been adversely affected by an underground mining operation, the
permittee must promptly replace the affected supply. Consequently, we
believe Utah's definition of ``replacement of water supply'' is no less
effective than the counterpart Federal definition without the suggested
presumptions.
3. Pre-Subsidence Survey
In another comment, water users suggested adding a sentence
concerning map requirements in pre-subsidence surveys to the end of the
proposed paragraph at Utah Admin. R. 645-301-525.110. The suggestion
would require permittees to file such maps with the State Engineer, the
local conservancy district, the largest water right holder in the
drainage, and the County office(s) where the permit area is located in
addition to including it in the permit application. In Part III.C.4 of
this final rule, we found Utah Admin. R. 645-301-525.110 is no less
effective than the counterpart Federal regulation at 30 CFR
784.20(a)(1) without the provision for map submittal with a permit
application as suggested by the comment. This comment would add
requirements to Utah's proposed rule that go beyond the scope of the
counterpart Federal regulation. As explained previously, we cannot
require Utah's rules to be more effective than the Federal regulations.
In addition, however, existing State rules already require maps to
be available to the public in their requirements for public
participation and notice. Utah Admin. R. 645-300-121 provides for
public notice of the Division's receipt of an application (including
maps) in local newspapers, for making the application available for
public inspection and copying at county courthouses, and notifying
local governmental agencies, including planning agencies, water
treatment authorities and water companies where they can inspect the
complete application. Utah Admin. R. 645-300-122 provides for public
comments and objections related to a permit application. Utah Admin. R.
645-300-123 provides for informal public conferences about permit
applications. All permit applications (including maps) on file with the
Division will be made available for public inspection and copying at
reasonable times as provided by Utah Admin. R. 645-300-124.
Another comment suggested adding a statement to proposed Utah
Admin. R. 645-301-525.130 requiring the [permit] applicant to consult
water rights holder(s), land owner(s), and the State Engineer to
determine that all springs and water sources have been properly
identified, monitored, and addressed in the pre-subsidence survey.
Utah's approved regulatory requirements for public participation and
notice are described in the preceding paragraph's response to a similar
comment. Further, the State's rules at Utah Admin. R. 645-301-700 et
seq. require permit applications to include descriptions of existing
hydrologic resources, including baseline information about surface and
groundwater. We believe Utah Admin. R. 645-301-525.130 is not
inconsistent with SMCRA and the Federal regulations as the State
proposed it without the suggested additional statement.
4. Subsidence Control
Two water user comments suggested removing the phrase ``and
economically'' from Utah Admin. R. 645-301-525.311 and -525.312, which
require measures to respectively prevent
[[Page 62930]]
and minimize material damage to protected structures caused by
subsidence to the extent technologically and economically feasible. We
considered economic feasibility in our discussion of comments in the
March 31, 1995, final rule adopting the Federal subsidence control
regulations (Id., at 16734). Recognizing that some material damage to
protected structures from subsidence is possible, we required that such
damage must be repaired. At the same time, we did not intend to
discourage use of planned and controlled subsidence mining methods or
to require underground mining methods not normally associated with such
operations. We did, however, intend to require reasonable measures to
be taken on the surface to protect occupied residential dwellings and
related structures and non-commercial buildings from material damage.
In that context, we reasoned that, by requiring measures to minimize
subsidence damage to non-commercial buildings and occupied residential
dwellings and related structures only when technologically and
economically feasible, we mitigated any potential for unreasonably
expensive minimization measures by providing that the requirement does
not apply if the permittee demonstrates that minimization would cost
more than repair. The same rationale applies to Utah Admin. R. 645-301-
525.300 through -525.313. We believe the proposed rule is no less
effective than the counterpart Federal regulations without the
suggested change.
One water user comment suggested adding a new provision at Utah
Admin. R. 645-301-525.312.3. The suggested provision would require
written consent of all holders of State-appropriated water with a
source in, adjacent to, or down drainage from the permit area as a
second prerequisite for waiving measures to minimize material damage to
protected structures to the extent technologically and economically
feasible. We cannot require Utah to make this suggested change because
it goes beyond the scope of the State's proposed rules and the Federal
regulations by requiring water holders' consent in connection with the
potentially unrelated issue of structural damage.
5. Subsidence Control Plan Contents
One comment suggested changes to proposed Utah Admin. R. 645-301-
525.400 that would add requirements for concurrence by the State
Engineer on the results of pre-subsidence surveys and with
determinations by the Division that structures, renewable resource
lands, or water supplies will be adversely affected by subsidence. The
same comment suggested replacing references to water ``supplies'' with
water ``sources.'' We previously explained in this final rule that
Utah's use of the terms water ``supply'' or ``supplies'' is consistent
with use of the same terms in the Federal regulations and SMCRA. We
also previously explained that we cannot require Utah to include
provisions in its rules that are more stringent than SMCRA or more
effective than the counterpart Federal regulations. Additionally, in
its January 29, 1997, clarification for statutory amendment UT-035-FOR
(administrative record number UT-1094) Utah recognized the State
Engineer's existing authority under State water law. For these reasons,
we believe Utah Admin. R. 645-301-525.400 is no less effective than the
Federal counterpart regulation at 30 CFR 784.20(b) without the
suggested change.
One water user comment suggested adding a statement at the end of
proposed Utah Admin. R. 645-301-525.420 that would require a separate
plan, as part of the subsidence control plan, to replace any State-
appropriated water that could be adversely affected by subsidence.
Neither SMCRA nor the Federal regulations require a separate plan for
this purpose so we cannot require Utah's rules to do so. Moreover, upon
approval of this amendment, Utah will have measures in place to begin
corrective action when water is adversely affected. They include: the
second part of Utah Admin. R. 645-301-525.420, which refers to measures
described in Utah Admin. R. 645-301-525.440, -525.450, and -525.470
that will be taken, when applicable, to correct subsidence-related
material damage; and Utah Admin. R. 645-301-731.530, which requires
replacement of certain adversely affected water supplies, using the
baseline hydrologic and geologic information required in Utah Admin. R.
645-301-700 to determine the impact(s) of mining on water supplies. We
believe Utah Admin. R. 645-301-525.420 is no less effective than
counterpart 30 CFR 784.20(b)(2) without requiring a ``plan within a
plan'' to replace water adversely affected by subsidence.
6. Repair of Damage to Surface Lands
In another comment, water users suggested removing the phrase
``technologically and economically feasible'' from proposed Utah Admin.
R. 645-301-525.510, which concerns repair of damage to surface lands.
The same reasoning we described in our response to water users'
comments under the Subsidence Control topic in Part IV.A.4 above
applies to this comment as well. We believe Utah's proposed rule has
the same meaning as the counterpart Federal regulation without the
suggested change.
7. Adjustment of Bond Amount for Subsidence Damage
In one comment, water users suggested changes to Utah Admin. R.
645-301-525.550, which provides for adjusting bond amounts for
subsidence damage. The suggested changes would replace the term water
``supply'' with water ``source,'' remove the reference to Utah Admin.
R. 645-301-731.530, and require the permittee to pay the water right
holder for all damages caused by adverse effects on water or a water
source if replacement does not occur within 30 days after the water or
source is materially damaged. Our responses to other comments above
concerning the term ``water supply'' explained that Utah's use of that
term in its rules is consistent with the wording of the Federal
regulations and SMCRA.
With respect to removing the reference to Utah Admin. R. 645-301-
731.530, that rule is Utah's performance standard for water
replacement. As referenced, it identifies those protected water
supplies subject to replacement if adversely affected by subsidence.
Such adverse effects invoke the requirement in proposed Utah Admin. R.
645-301-525.550 to adjust bond amounts sufficient to ensure replacement
of water supplies if, and until, they are to be replaced. Removing the
reference would render Utah Admin. R. 645-301-525.550 less effective
than the counterpart Federal regulation at 30 CFR 817.121(c)(5), which
similarly references the Federal performance standard for water
replacement at 30 CFR 817.41(j).
The comment's suggestion to require payment of damages if
replacement does not occur within 30 days after water is adversely
affected is beyond the scope of payment of operation and maintenance
costs provided under the State and Federal definitions of ``replacement
of water supply.'' At the same time, however, we note that the citizen
suit provisions of section 520(e) of SMCRA provide that nothing (in
that section) shall restrict any right which any person may have under
any statute or common law to seek enforcement of any of the provisions
of SMCRA and the regulations or to seek any other relief. Utah's
counterpart to section 520 of SMCRA is found at UCA 40-10-21(5).
Based on the explanations given above, we believe proposed Utah
[[Page 62931]]
Admin. R. 645-301-525.550 is no less effective than counterpart 30 CFR
817.121(c)(5) without the suggested changes.
8. Public Notice of Proposed Mining and PHC Determinations for Surface
Mines
Two water user comments suggested significant changes to two
sections of Utah's rules that the State made only minor changes to in
this amendment. One comment suggested changing Utah Admin. R. 645-301-
525.700, which provides for public notice of proposed mining. This
amendment only proposes to recodify Utah Admin. R. 645-301-525.700 in
view of the new rules being added to the same subsection. The comment's
suggested change would require a mine operator to mail written
notification of proposed mining to all holders of State-appropriated
water rights in or adjacent to the permit area at least one year prior
to mining. That notification would identify where the operator's
subsidence control and water replacement plans may be examined. This
suggested change is beyond the scope of Utah's proposed rulemaking
because it does not address Utah's proposed change. In addition, we
explained previously in Part IV.A.3 of this final rule that Utah's
rules already provide for public notice and review of permit
applications. Those applications would include plans for subsidence
control and water replacement. Utah Admin. R. 645-300-121 provides for
public notice of the Division's receipt of an application in local
newspapers, for making the application available for public inspection
and copying at county courthouses, and notifying local governmental
agencies, including planning agencies, water treatment authorities and
water companies where they can inspect the complete application.
Further, all permit applications on file with the Division will be made
available for public inspection and copying at reasonable times as
provided by Utah Admin. R. 645-300-124.
The other comment suggested changing Utah Admin. R. 645-301-
728.340, which addresses findings to be included in PHC determinations
for surface coal mining and reclamation activities. Utah Admin. R. 645-
301-728.340 is revised in this amendment only by the addition of a
semi-colon and the word ``OR'' at the end of the paragraph to
distinguish it from the new PHC findings requirement being added for
underground mining at Utah Admin. R. 645-301-728.350. The comment's
suggested change would require PHC findings to determine whether
surface mining and reclamation activities conducted after October 24,
1992, would contaminate, diminish, or interrupt and underground or
surface source of State-appropriated water (emphasis added). Also, it
would delete the qualifying statement that such water be located within
the permit or adjacent areas and be used for domestic, agricultural,
industrial or other legitimate purpose. This comment does not address
Utah's proposed change and is beyond the scope of the State's
amendment. Nevertheless, we note that the suggested change to Utah
Admin. R. 645-301-728.340 strives for consistency between that
provision and the provision that follows at proposed Utah Admin. R.
645-301-728.350 for underground coal mining and reclamation activities.
It is important to note that the underlying authority for proposed Utah
Admin. R. 645-301-728.350 is UCA 40-10-18(15)(c), which in turn is
based on section 720(a)(2) of SMCRA. Those statutory provisions require
replacement of water supplies adversely affected by underground coal
mining operations and do not affect existing water replacement
requirements applicable to surface mining in the Federal regulations or
in Utah's rules.
Though both comments are beyond the scope of this amendment, we
forwarded them to the State for its consideration.
9. PHC Determinations for Underground Mines
One comment suggested rewording Utah Admin. R. 645-301-728.350,
which addresses findings to be included in PHC determinations for
underground coal mining and reclamation activities. The comment would
change the phrase ``* * * may result in contamination, diminution, and
interruption * * *,'' which describes adverse effects of underground
mining, to read, ``may contaminate, diminish, and interrupt.'' It also
suggested adding the term ``water sources'' after the term ``State-
appropriated water'' and removing the qualifying statement that water
be used for legitimate purposes within the permit or adjacent areas.
As proposed with the phrase ``* * * may result in contamination,
diminution, or interruption * * *,'' Utah Admin. R. 645-301-728.350
provides for PHC findings as to whether underground coal mining and
reclamation activities may adversely affect State-appropriated water
supplies directly or indirectly. The water users' suggested language
potentially could limit PHC findings to findings only of direct adverse
effects of underground mining and reclamation activities. That, in
turn, would render Utah Admin. R. 645-301-728.350 potentially less
effective than the counterpart Federal regulation at 30 CFR
784.14(e)(3)(iv).
Utah's qualifying statement ``* * * and used for legitimate
purposes'' * * *`` at Utah Admin. R. 645-301-728.350 describing
existing water use is supported by a clarification the State provided
for Utah Code amendment UT-035-FOR in its January 29, 1997, letter
(administrative record number UT-1094). We discussed Utah's
characterization of legitimate water use in the context of PHC findings
at Utah Admin. R. 645-301-728.350 in our finding at Part III.C.9 of
this final rule. Further, in the same finding, we explained how Utah's
qualifying statement for legitimate use is consistent with the similar
provision at Utah Admin. R. 645-301-728.340 for surface coal mining and
reclamation activities. Additionally, our finding at Part III.C.2 of
this final rule discusses Utah's clarification of the term ``State-
appropriated water,'' including its reference to legitimate water use.
Our previous responses to other comments concerning the term ``water
source'' in Part IV.A of this final rule explain that Utah's use of
``State-appropriated water'' in its rules is no less effective than the
Federal regulations and is no less stringent than SMCRA.
In the same comment, water users also maintained that there is no
basis for Utah Admin. R. 645-301-728.350 to qualify that water subject
to the PHC finding must have been used in the permit or adjacent areas.
We considered the scope of ``the permit and adjacent areas'' in our
discussion of comments in the March 31, 1995, final rule adopting the
counterpart Federal regulation at 30 CFR 784.14(e)(3)(iv) (Id., at
16729). In that discussion, we explained that ``adjacent area''
includes all areas outside the permit area where resources, including
wells or springs, could reasonably be expected to be adversely impacted
by the proposed mining operation, including probable impacts from
underground workings. The same rationale applies to the provisions of
Utah Admin. R. 645-301-728.350.
We therefore conclude that Utah Admin. R. 645-301-728.350 is no
less effective than the counterpart Federal regulation at 30 CFR
784.14(e)(3)(iv) as proposed with its reference to State-appropriated
water, its description of PHC findings of adverse effects, and its
inclusion of the provision that existing water be used for legitimate
purposes.
B. Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested
[[Page 62932]]
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Utah program. We asked for
comments on the amendment as Utah originally submitted it and as
revised in the State's October 31, 2000, letter (administrative record
numbers UT-1106 and UT-1156, respectively).
U.S. Department of the Interior, Fish and Wildlife Service (USFWS)
The Utah Field Office of USFWS responded to our request for
comments on the original amendment in a letter dated April 21, 1998
(administrative record number UT-1110). USFWS supported the proposed
amendment, noting how subsidence and water loss can impact hydrologic
systems and wildlife that depend on them. Additionally, USFWS observed
that the amendment appears to strengthen requirements for controlling
and mitigating subsidence damage and determining and correcting water
supply losses.
U.S. Department of Agriculture, Forest Service (USFS)
An office of the Manti-LaSal National Forest submitted comments on
the original amendment on behalf of the USFS after the close of the
first comment period (administrative record number UT-1116). Discussion
of those comments and our responses follow.
1. Replacement of Water Supply
One USFS comment proposed changes to Utah's definition of
``replacement of water supply'' at Utah Admin. R. 645-100-200. It
suggested changing the last sentence of paragraph (a) of the definition
to require agreement to a one-time payment of increased operation and
maintenance costs by the landowner or surface management agency in
addition to the permittee and the water supply owner. The comment also
suggested adding another part to the definition to read:
If the water supply or portion of the water supply is needed for
the land use in existence at the time of loss, contamination, or
diminution, or postmining land use, replacement requirements must
meet such needs and be agreed to by the land owner or land
management agency.
Both parts of this comment addressed concerns of the landowner and
surface management agency for perpetuating water sources needed to
sustain land uses and ecosystems. We agree that involving the landowner
or surface management agency in determining water replacement needs is
a prudent approach to resource management. However, imposing that as a
requirement in Utah's rules is beyond the scope of the Federal water
replacement regulations. It also could create conflict if the land
owner and surface management agency are not the water supply owner(s)
and if their consent is not a condition of land or water supply
ownership or land management required under other State law.
With respect to the suggested additional part of the definition, we
cannot require Utah's rules to be more effective than the Federal
regulations or more stringent than SMCRA. Utah's proposed definition
already provides that water replacement support existing land uses and
postmining land use, as demonstrated by its provision of waivers only
for replacement of adversely affected supplies not needed for the
existing or postmining land uses. Further, as noted above in our
response to the first part of this comment, requiring landowner or
surface management agency consent could create conflict if not required
by other provisions of State law. We believe Utah's definition is no
less effective than the counterpart Federal definition at 30 CFR 701.5
without the suggested additional language.
2. Subsidence Control Plans and Pre-Subsidence Surveys
Another USFS comment suggested that the part of Utah Admin. R. 645-
301-525 which addresses subsidence control plans require pre-subsidence
surveys of all renewable resource lands, structures, and water sources
within a subsidence area whether or not the permittee determines they
will be adversely affected by subsidence. The comment also asserted
that limiting surveys to State-appropriated waters will generate
insufficient baseline data to determine the causes and effects of
subsidence because they will overlook other protected water resources.
We believe Utah's proposed rules adequately provide for pre-
subsidence surveys of structures, renewable resource lands and water
supplies. Proposed Utah Admin. R. 645-301-525.100 specifically requires
pre-subsidence surveys in each application for underground coal mining
and reclamation activities. Whether adverse effects on structures,
renewable resources or State-appropriated water resulting from
subsidence are expected to occur or not is the basis for determining if
the subsidence control plan must include the additional information
described in Utah Admin. R. 645-301-525.410 through -525.490. As
provided in Utah Admin. R. 645-301-525.400, that additional information
will not be required in the subsidence control plan if the survey
conducted under R645-301-525.100 shows, and the Division agrees, that:
No structures, State-appropriated water supplies, or renewable resource
lands exist; or, that no material damage to lands or structures, or no
reduction in their value or use, and no adverse effects on water
supplies, would occur as a result of subsidence. Proposed Utah Admin.
R. 645-301-525 through -525.120 provide the same scope of pre-
subsidence surveys as required by the counterpart Federal regulations
at 30 CFR 784.20(a)(1) through (a)(2). Further, proposed Utah Admin. R.
645-301-525.130 provides for pre-subsidence structural surveys within
an applicable angle of draw when that part of the corresponding Federal
regulation at 30 CFR 784.20(a)(3) is suspended. We explained in our
findings in Parts III.C.4 and III.C.5 of this final rule that partial
suspension of 30 CFR 784.20(a)(3) does not make Utah's proposed
provisions for pre-subsidence surveys of EPAct protected structures and
subsidence control plan content inconsistent with SMCRA.
We also believe Utah's proposed rules adequately cover protected
water supplies. As explained in our findings at Part III.C.3 and
III.C.10 of this final rule and in our responses to other public
comments in Part IV.A, Utah's water replacement provisions are based on
its use of the term ``State-appropriated water'' at UCA 40-10-
18(15)(c). Based on clarification provided by the State, that term
expands Utah's protection and replacement provisions beyond the
drinking, domestic, and residential water supplies from wells or
springs included under the Federal regulations and SMCRA. Further,
Utah's rules require baseline hydrologic data in addition to the pre-
subsidence survey requirements proposed in this amendment. Provisions
at Utah Admin. R. 645-301-700 et seq. list information required in
permit applications to characterize hydrologic resources, identify
potential impacts of mining on those resources, and to minimize
disturbance of such resources located in proposed permit and adjacent
areas.
Another USFS comment suggested that Utah Admin. R. 645-301-724.600
should not be removed as proposed in this amendment. This existing rule
requires a survey to determine if aquifers and recharge areas would be
materially damaged or diminished by subsidence, if it occurred, from
underground mining. The comment stressed the importance of aquifers and
recharge areas to surface water. It also
[[Page 62933]]
stressed the need to inventory water resources other than those
appropriated by the State and to address them in the subsidence control
plan to ensure protection of hydrologic systems. Proposed Utah Admin.
R. 645-301-525.110, which replaces Utah Admin. R. 645-301-724.600,
provides for pre-subsidence surveys to determine whether subsidence, if
it occurred, would adversely affect structures, renewable resource
lands and State-appropriated water. As defined at Utah Admin. R. 645-
100-200, ``renewable resource lands'' includes aquifers, aquifer
recharge areas, and other underground waters. SMCRA (as amended by
EPAct) and the implementing Federal regulations extend replacement
protection to drinking, domestic and residential water supplies from
wells or springs. We explained previously in this final rule that
Utah's protection of ``State-appropriated water supplies'' is no less
effective than the Federal regulation and no less stringent than SMCRA
because it extends protection to a wider range of water supplies. Utah
clarified in its October 31, 2000, letter (administrative record number
UT-1145) that, because it has a process under UCA 73-5-13 to recognize
water claims established by diversion (``diligence rights'') before the
State Engineer's office was established and before Utah became a State,
``State-appropriated water'' also includes territorial water rights.
Our response to the preceding comment also showed that Utah requires
baseline data for other water resources under Utah Admin. R. 645-301-
700 et seq. As a result, we believe the State's proposed removal of
existing Utah Admin. R. 645-301-724.600 is appropriate in light of the
rules it proposed to add at Utah Admin. R. 645-301-525 through -
525.130.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
agreement from EPA for those provisions of the program amendment that
relate to air or water quality standards issued 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 changes Utah proposed in amendment
UT-037-FOR pertain to air or water quality standards. As a result, we
did not request EPA's concurrence.
Nevertheless, we provided copies of the original and revised
amendments to EPA for review under 30 CFR 732.17(h)(11)(i) and asked if
it had any comments (administrative record numbers UT-1106 and UT-
1156). We did not receive any comments from EPA.
State Historic 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. In letters dated March 25, 1998, and April 6, 1998, we
requested comments from the SHPO and the ACHP, respectively, on the
original amendment (administrative record number UT-1106). We asked for
comments on the revised amendment from the SHPO and the ACHP in letters
dated January 11, 2001, (administrative record number UT-1156). We
received one response from the SHPO in a letter dated April 7, 1998
(administrative record number UT-1109). In that letter, the SHPO
concurred with the determination we made under the 36 CFR 800
regulations that the proposed amendment will have no effect on
properties listed, or eligible for listing, on the National Register of
Historic Places. We did not receive comments from the ACHP.
V. Director's Decision
Based on the above findings, we approve Utah's proposed amendment
as submitted on March 20, 1998, corrected on May 13, 1998, and revised
on October 31, 2000.
We approve, as discussed in Part III.A: Utah Admin. R. 645-301-
525.200 through 525.240, recodified rules pertaining to protected
areas; Utah Admin. R. 645-301-525.600, recodified rule pertaining to
compliance with the approved subsidence control plan; and Utah Admin.
R. 645-301-525.700, recodified rule pertaining to public notice of
proposed mining; in Part III.B: Utah Admin. R. 645-100-200, definitions
of ``material damage'' and ``occupied residential dwelling and
structures related thereto;'' Utah Admin. R. 645-301-525.300 through -
525.313, subsidence control measures to prevent or minimize damage,
replacing existing Utah Admin. R. 645-301-525.200 and -525.210, which
are removed; Utah Admin. R. 645-301-525.410, description in the
subsidence control plan of coal removal method(s), replacing existing
Utah Admin. R. 645-301-525.110, which is removed; Utah Admin. R. 645-
301-525.420, requirement for a map to be in the subsidence control plan
showing underground workings where planned subsidence is suspected,
areas where subsidence will be minimized, and areas where subsidence-
related damage will be minimized and corrected; Utah Admin. R. 645-301-
525.430, description in the subsidence control plan of physical
conditions affecting subsidence, replacing existing Utah Admin. R. 645-
301-525.120, which is removed; Utah Admin. R. 645-301-525.440,
requirement for a description in the subsidence control plan of
subsidence monitoring to be done, replacing existing Utah Admin. R.
645-301-525.140, which is removed; Utah Admin. R. 645-301-525.450
through -525.460, description in the subsidence control plan of
subsidence control measures, replacing existing Utah Admin. R. 645-301-
525.130 through -525.134 and Utah Admin. R. 645-301-525.150, which are
removed; Utah Admin. R. 645-301-525.470, description in the subsidence
control plan of methods to minimize damage from planned subsidence;
Utah Admin. R. 645-301-525.500, heading ``Repair of damage,'' replacing
existing introductory statement at Utah Admin. R. 645-301-525.230,
which is removed; Utah Admin. R. 645-301-525.510, requirement to repair
damage to surface lands, replacing existing Utah Admin. R. 645-301-
525.231, which is removed; Utah Admin. R. 645-301-525.520, requirement
to repair, or compensate for, damage to non-commercial buildings and
dwellings and related structures, replacing, in part, existing Utah
Admin. R. 645-301-525.232, which is removed; and Utah Admin. R. 645-
301-525.545, information to be considered in determination the cause of
damage; in Part III.C.1: Utah Admin. R. 645-100-200, definition of
``non-commercial building;'' in Part III.C.2: Utah Admin. R. 645-100-
200, definition of ``State-appropriated water supply;'' in Part
III.C.3: Utah Admin. R. 645-100-200, definition of ``replacement of
water supply;'' in Part III.C.4: Utah Admin. R. 645-301-525 through
645-301-525.130, subsidence control plans, pre-subsidence surveys,
replacing existing Utah Admin. R. 645-301-724.600, which is removed; in
Part III.C.5: Utah Admin. R. 645-300-525.400, -525.480, and -525.490,
subsidence control plan contents, replacing existing Utah Admin. R.
645-301-525 through -525.170, which are removed; in Part III.C.6: Utah
Admin. R. 645-301-525.530, repair or compensation for damage to other
structures; in Part III.C.7: Utah Admin. R. 645-301-525.540, rebuttable
presumption of causation by subsidence; Utah Admin. R. 645-301-525.541,
rebuttable presumption of causation for damage within angle of draw;
and Utah Admin. R. 645-301-
[[Page 62934]]
525.542, approval of site-specific angle of draw; in Part III.C.8: Utah
Admin. R. 645-301-525.550, adjustment of bond amount for subsidence
damage; in Part III.C.9: Utah Admin. R. 645-301-728.340 and 728.350,
probable hydrologic consequences determination for underground mining
effects; and in Part III.C.10: Utah Admin. R. 645-301-731.530,
replacement of State-appropriated water supply.
We approve these rules as Utah proposed them with the provision
that the State fully promulgate them in a form identical to the rules
submitted to, and reviewed by, OSM and the public. To implement this
decision, we are amending the Federal regulations at 30 CFR part 944,
which codify decisions concerning the Utah program. We find that good
cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective
immediately. Section 405(d) of SMCRA requires that the State have a
program that is in compliance with the procedures, guidelines, and
requirements established under the Act. Making this regulation
effectively will expedite that process. Further, SMCRA requires
consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988--Civil Justice Reform
The Department of the Interior conducted the reviews required by
section 3 of Executive Order 12988 (Civil Justice Reform) and
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 because each 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 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 submittals are consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR parts 730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211, which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866, and because it is not expected to have a
significant adverse effect on the supply, distribution, or use of
energy, a Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because 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 (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 that is the subject of this rule is based on
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect on a substantial number of small entities.
Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. The
Department relied on the data and assumptions for the counterpart
Federal regulations in making the determination as to whether this rule
would have a significant economic impact.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
This determination is based on the fact that the State submittal,
which is the subject of this rule, is based on counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
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 any local, State, or Tribal
governments or private entities.
List of Subjects in 30 CFR Part 944
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 18, 2001.
Brent Wahlquist,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 944 is amended
as set forth below:
[[Page 62935]]
PART 944--UTAH
1. The authority citation for part 944 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 944.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 944.15 Approval of Utah regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * ** * *
March 20, 1998................ December 4, 2001. Definitions of
``material damage,''
``non-commercial
building,''
``occupied
residential dwelling
and structures
related thereto,''
``replacement of
water supply,'' and
``State-appropriated
water supply'' at
Utah Admin. R. 645-
100-200; 645-301-525
through 525.170; 645-
301-525.200 through
525.240; 645-301-
525.300 through
525.313; 645-301-
525.400 through
525.490; 645-301-
525.500 through
525.550; 545-301-
525.600; 645-301-
525.700; 645-301-
724.600; 645-301-
728.340; 645-301-
728.350; and 645-301-
731.530.
------------------------------------------------------------------------
[FR Doc. 01-29982 Filed 12-3-01; 8:45 am]
BILLING CODE 4310-05-P