POSTMINING LAND USE

 Exceptions to Approximate Original Contour Requirements

for

Mountaintop Removal Operations

and

Steep Slope Mining Operations

Office of Surface Mining Reclamation and Enforcement

October 1999
2

Table of Contents

I. INTRODUCTION AND SUMMARY .................................. ................. 3

A. The purpose of this paper. .................................. ................... 3

B. Background principles established by SMCRA. .................................. . . 3

II. WHAT ARE THE CRITERIA FOR AN EXCEPTION TO THE AOC RESTORATION

REQUIREMENT? .................................. ................................ 10

A. What do our regulations require? .................................. ............ 10

B. Which Postmining Land Uses Qualify? .................................. ........ 10

C. What a re the Permitting Requireme nts? .................................. ....... 12

D. Are there a ny special bon d release require ments? ................................. 12

III. AOC EXCEPTION REQUIREMENTS FOR MOUNTAINTOP REMOVAL OPERATIONS .... 13

A. Public facility use, with a discussion of fish and wildlife habitat. ..................... 13

B. Forestry. .................................. ................................ 17

C. Agricultura l uses. .................................. ......................... 22

IV. AOC VARIANCE REQUIREMENTS FOR STEEP SLOPE MINING OPERATIONS ......... 28

A. Acceptab le postmining land uses. .................................. ............. 28

B. Permitting R equirements. .................................. ................... 28

Appen dix Statutory and Regulatory Citations .................................. ........... 32
3

I. INTRODUCTION AND SUMMARY

A. The purpose of this paper.

A general requirement under the Surface Mining Control and Reclamation Act (SMCRA) is that

lands disturbed by mining must be reclaimed to their approximate original contour (AOC) 30

U.S.C. § 1265(b)(3). SMCRA creates limited exceptions to this requirement for mountaintop

removal and steep slope mining operations, but operators wishing to take advantage of one of

these exceptions must render the mined lands capable of one of several enumerated postmining

land uses. 30 U.S.C. § 1265(c)(3) and 30 U.S.C. § 1265(e)(2). Considerable confusion exists,

however, regarding how broadly or narrowly to interpret SMCRA s categories of acceptable

postmining land uses. We have developed this paper to clarify the statutory and regulatory

requirements relating to these postmining land uses.

As discussed in this document, when Congress enacted SMCRA, it chose to allow exceptions

from AOC only in situations where beneficial postmining land uses could compensate for the

adverse effects of not returning the land to AOC such as the greater number and size of the

excess spoil fills generated by mountaintop removal and steep slope operations. This overarching principle of compensation is also reflected in the Office of Surface Mining's (OSM) alternative postmining land use regulations which impose a 

hi gher and better use  reclamation standard on mountaintop removal and steep slope mining operations. Two corollaries arise from the

principle of compensation: (1) a postmining land use cannot be approved where the use could be

achieved without waiving the AOC requirement, except in those rare instances where it is

demonstrated that a significant public or economic benefit will be realized therefrom; and, (2)

where an exception or variance from the AOC requirement is sought, the postmining land use

must always offer a net benefit to the public or the economy.

B. Background principles established by SMCRA.

SMCRA establishes requirements for the regulation of surface coal mining and reclamation operations and for the restoration of abandoned mine lands. Through these requirements, Congress

sought to establish requirements that would minimize the effects of mining. One of the most

important of these is the general requirement that disturbed lands be reclaimed to AOC. Pursuant

to Subsection 515(b)(3), mine operators must "backfill, compact * * *, and grade in order to

restore the approximate original contour of the land with all highwalls, spoil piles, and

depressions eliminated." 30 U.S.C. § 1265(b)(3). 

At the same time, Congress also recognized that alternatives to AOC might be justified when certain beneficial postmining land uses would result from the mining operation. These beneficial

land uses could compensate for the effects of mountaintop removal and steep slope mining and

for not returning the land in question to AOC. For example, in mountainous Appalachia, largescale surface coal mining operations present an opportunity to create relatively flat, flood-free
1The soil and rock not needed to return a mined out area to AOC is called excess spoil.

One easy way to envision this excess spoil phenomenon is to think of what happens when

plowing a garden. Plowing soil produces smaller, irregularly shaped pieces separated by voids or

air pockets. Because the plowed soil no longer fits together as compactly as it once did, the

overall volume of the soil is increased. For that reason, the ground level after plowing is always

higher than it was before. Similarly, mining breaks up solid rock layers and creates voids,

causing the overall volume of the material to increase. This phenomenon is known in the mining

industry as bulking,  or swell.  Excess spoil is the material produced by swell.

2

 The general requirement for a mountaintop removal variance is that the proposed postmining land use must constitute 

an equal or better economic or public use of the affected land,

as compared with premining use . . .  30 U.S.C. § 1265(c)(3)(A). For steep slope operations, a

4

land capable of supporting residential and industrial development and other valuable land uses. 

To take advantage of this opportunity, Congress included provisions in SMCRA to allow exceptions to the AOC restoration requirement. Under section 515(c) of the Act, 30 U.S.C. § 1265(c),

mountaintop removal operations, if approved, are exempt from the AOC restoration

requirements, and, under section 515(e) of the Act, 30 U.S.C. § 1265(e), steep slope mining

operations may seek an exception from those requirements. In creating these exceptions,

however, Congress imposed three sets of requirements to prevent the misuse of the exceptions as

a means of avoiding reclamation responsibilities and to ensure that significant economic or

public benefit would result from these operations. 

Although mountaintop removal and steep slope operations create the opportunity for flat land

there is a significant downside to these operations  the large size of the valley fills that they produce. Even when land is returned to AOC, some excess spoil material is created that must be

disposed of in fills. The reason for this is that, during the mining process, excavated material

swells due to the creation of voids.1

 However, when a site is not returned to AOC, a substantially

greater amount of excess spoil is generated, all of which must be placed off the mine bench or

mountain. This additional excess spoil causes significantly more disturbances to natural areas

and water courses due to the creation of larger fills. Because mining operations with AOC variances usually cause greater disturbances by generating more excess spoil for fills than those

without AOC variances, it is important to limit their occurrence to situations where beneficial

postmining land uses offer real compensation for the effects of not returning the land to AOC.

Congress considered both the benefits of and the liabilities for mountaintop removal and steep

slope mining when it imposed three sets of requirements to prevent the misuse of the exceptions

as a means of avoiding reclamation responsibilities and to ensure that significant economic or

public benefit would result from these operations

First, it established a general requirement that acceptable postmining land uses for mountaintop

removal and steep slope mining variance operations must constitute * * * equal or better

economic or public use[s] of the land.2 30 U.S.C. § 1265(c)(3)(A), 1265(e)(3).
general requirement is that the potential use of the affected land must constitute an "equal or

better economic or public use." 30 U.S.C. § 1265(e)(3).

5

Second, Congress specified the types of beneficial land uses that would be acceptable for each

type of mining. SMCRA section 515(c)(3), 30 U.S.C. § 1265(c)(3), allows the regulatory authority to approve mountaintop removal operations only 

in cases where an industrial, commercial,

agricultural, residential or public facility (including recreational facilities) use is proposed

for the postmining land use of the affected land." (Emphasis added.) SMCRA section 515(e)(2),

30 U.S.C. § 1265(e)(2), allows the regulatory authority to approve variances from AOC

restoration requirements for operations on steep slopes only for an industrial, commercial,

residential, or public use (including recreational facilities)." (Emphasis added.)

Third, Congress specified criteria for both mountaintop removal mining and steep slope mining

operations. A regulatory authority must use these criteria when evaluating a mountaintop

removal permit application or a request for an AOC variance for steep slope mining operations to

ensure that the proposed post mining land use will be practicable and feasible. An applicant for a

mountaintop removal operation must show that the use will be:

(i) compatible with adjacent land uses; 

(ii) obtainable according to data regarding expected need and market; 

(iii) assured of investment in necessary public facilities; 

(iv) supported by commitments from public agencies where appropriate; 

(v) practicable with respect to private financial capability for completion of the proposed use; 

(vi) planned pursuant to a schedule attached to the reclamation plan

so as to integrate the mining operation and reclamation with the

postmining land use; and 

(vii) designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and

configuration necessary for the intended use of the site. 

30 U.S.C. § 1265(c)(3)(B). 

An applicant for a variance from AOC for a steep-slope mining operation must include a request

in writing from the owner of the property as part of the permit application; the watershed of the
6

area must be improved; the proposed use must be designed and certified by a qualified registered

professional engineer in conformance with professional standards established to assure the

stability, drainage, and configuration necessary for the intended use of the site; and only such

amount of spoil may be placed off the mine bench as is necessary to achieve the planned

postmining land use. 30 U.S.C. § 1265(e)(1) through (e)(4).

Taken together these provisions manifest a clear concern on the part of Congress to ensure that 

the proposed postmining land use is likely to afford some significant benefit either from a public

policy or an economic standpoint in compensation for not returning the land to AOC. Because

Congress made restoration to AOC a key element of SMCRA and allowed deviation from this

standard only in limited situations and under certain prescribed conditions, OSM finds ample

basis for its policy that any loss of AOC must be compensated for in the resulting postmining

land use. All proposed postmining land uses should be judged against this overarching principle. 

We codified our interpretation of the relationship between paragraphs (b)(2), (c), and (e) of

section 515 of the Act by adopting regulations requiring that mountaintop removal and steep

slope mining operations seeking AOC variances comply with pertinent provisions of 30 CFR

816.133. Under 30 CFR 785.14(c)(1)(ii), mountaintop removal operations must comply with the

alternative postmining land use requirements of 30 CFR 816.133(a) through (c). Under 30 CFR

785.16(a)(2) and 816.133(d)(2), steep slope mining operations must comply with the alternative

postmining land use requirements of 30 CFR 816.133(c) to obtain a variance from AOC

restoration requirements. Like section 515(b)(2) of the Act, paragraphs (a) and (c) of 30 CFR

816.133 specify that the only acceptable alternative postmining land uses are those that are

higher or better than the premining uses. Hence, the only acceptable postmining land uses for

purposes of obtaining an exception from the AOC restoration requirements are those which are

both higher or better than the premining use and are an equal or better economic or public use,

compared with the premining uses.

In 30 CFR 701.5, we define higher or better uses  as meaning postmining land uses that have a

higher economic value or nonmonetary benefit to the landowner or the community than the

premining land uses.  There is no definition or explanation of equal or better economic or

public use  in either the statute or our regulations.

Application of both of these standards to each proposed postmining land use will have the effect

of disqualifying non-public postmining land uses that are of lesser economic value than the

premining land use. However, postmining land uses that are of equal or better economic or

public value than the premining uses will be allowed if they confer higher or better nonmonetary

benefits to the landowner or the community.

As we stated above, as an overarching principle of the Act, exceptions from the AOC

requirements are allowed only in situations where beneficial postmining land uses could

compensate for the effects of not returning the land to its AOC. The two resulting consequences

that arise from this overarching principle are discussed below.
3

 The 95th Congress did place a different but somewhat analogous restriction on AOC

variances for steep slope mining operations. Section 515(e)(4) of SMCRA and 30 CFR

816.133(d)(8) and 817.133(d)(8) require that the regulatory authority limit those variances to the

amount of spoil necessary to achieve the planned postmining land use.

7

1. A postmining land use will not be approved where the use could be achieved without

waiving the AOC requirement, except in those rare instances where it is

demonstrated that a significant public or economic benefit will be realized

therefrom.

A major criterion that can be used in assessing the appropriateness of postmining land uses is

whether the use can be achieved without an exception or variance from the AOC requirements,

or, put another way, whether the proposed postmining land use is one for which flat land or

rolling terrain is necessary. Early versions of SMCRA made this criterion the dispositive factor

in assessing the appropriateness of proposed postmining land uses: they expressly limited

approved postmining land uses for mountaintop removal operations to those that could not be

achieved without an exception from the AOC requirement. See, for example, H.R. CONF. REP.

NO. 93-1522 (1974). The 95th Congress, however, ultimately deleted this flat land necessity

requirement  as too restrictive. H.R. REP. NO. 95-218, at 67 (1977).3 We believe, however, that

when Congress removed this provision, it did not intend to eliminate consideration of the need

for flat or rolling terrain as an important criterion that regulatory authorities should use in

determining whether proposed postmining land uses are appropriate. Significantly, the 1977

House report we have just cited also includes a discussion, taken from earlier reports, that uses

the need for flat land as a criterion for disfavoring certain low-intensity postmining land uses:

It should be noted that pasture, grassland, and similar agricultural

land uses are not considered intensive uses by the committee. Such

agricultural activities can be conducted on reclaimed mine slopes

without requiring variances from the approximate original contour

and spoil placement standards.

H.R. REP. NO. 95-218, at 109 (1977). 

Therefore, while the need for flat or rolling terrain should not be the exclusive test used to assess

proposed postmining land uses, regulatory authorities may use it as an important criterion in their

deliberations. With this in mind, we fully expect that, in the vast majority of cases, the approved

postmining land uses should be ones that could not have been conducted in the absence of flat or

rolling terrain. 

2. Where an exception or variance from AOC requirements is sought, the postmining

land use must always offer a net benefit to the public or the economy.

As mentioned above, a general requirement under SMCRA for postmining land uses in connec-
8

tion with both mountaintop removal and steep slope mining operations is that the proposed

postmining land use must constitute an equal or better economic or public use. See 30 U.S.C.

§§ 1265(c)(3)(A) and (e)(3) (emphasis added). While the meaning of better use  is fairly clear,

the meaning of equal  warrants clarification. Taken in context, we think the word equal 

means that approvable postmining land use may sometimes fall into the same general land use

category as the premining land use, but only if there will be significant improvement to the site

that offers a net benefit to the economy or the public. For several reasons, we do not think that

Congress, in using the word equal,  intended to allow operators to restore a site to an unimproved condition which, except for its now-flattened configuration, is essentially the same as its

premining state. 

The first reason for this conclusion is that, in SMCRA, Congress prescribed the AOC as the

normative postmining reclamation standard. 30 U.S.C. § 1265(b)(3). Congress also prescribed

those limited conditions under which an exception could be granted to the AOC restoration

requirement in exchange for some beneficial postmining result. A postmining land use on a

flattened and unimproved site can never really be equal ... as compared with premining use 

because the loss of the original contour has not been compensated for in the postmining use. To

allow an unimproved postmining result, different from the premining conditions in only one

respect  that the AOC has been lost  would render the intent of Congress that the AOC

restoration be the standard for surface mining to have no meaning or effect whatsoever. In light

of the importance placed on restoration to the AOC in SMCRA, we cannot conclude that

Congress intended such a result. Consequently, on such sites, the postmining land use can be

rendered equal  to the premining use only if the operator takes positive steps to compensate for

the loss of the AOC. In other words for a postmining use of a flattened site to be equal  to the

premining use of the site, there must always be some improvement to, or new benefit resulting

from, the site after mining.

Second, as explained earlier in this paper, the other postmining land use criteria in SMCRA for

both mountaintop removal mining and steep slope mining operations manifest a clear concern 

that postmining land uses be likely to afford significant benefit either from a public policy or an

economic standpoint. Section 515(c)(3)(B), 30 U.S.C. § 1265(c)(3)(B), requires that regulatory

authorities examine the feasibility of a proposed postmining land use, the market need for the

use, and the availability of financing. Section 515(e)(3), requires, among other things, an

improvement of the affected watershed. These requirements, when read together, indicate that

the acceptable postmining land uses for mountaintop removal mining and steep slope operations

will take planning, work, and significant expenditure to effect. They also indicate that approved

postmining land uses should result in some type of public or economic benefit. Interpreting the

word equal  to allow a postmining land use that is merely an unimproved version of the premining land use would run counter to both sets of provisions. 

A third reason for this conclusion is our understanding that Congress wished to include all postmining land uses that could afford a significant public or economic benefit. If Congress had

required that mountaintop removal and steep slope sites always be restored to a better economic
9

or public use,  such a provision might have been misconstrued as a requirement that the sites had

to be put to a completely different category of use after mining. We think that Congress used the

term equal  in recognition that it sometimes might be beneficial to the public or to the economy

to restore a site to an improved version of its premining land use.

We believe, consequently, that an approvable postmining land use, say agriculture, may fall into

the same general land use category as the premining land use, but only if there will be significant

improvements to the site that offer a net benefit to the economy or the public. In accordance

with this understanding, the Federal regulations at 30 C.F.R. § 785.14(c)(1)(ii) and 785.16(a)(2)

provide that applicants for exceptions from the AOC restoration requirement must demonstrate

compliance with the alternative postmining land use requirements of 30 C.F.R. § 816.133(c). 

One example of such an alternative would be a premining use of unmanaged forest that may or

may not be harvested for timber being replaced by a postmining forest that is carefully managed

to produce higher yields of better timber. Another example of such an alternative would be

going from an undeveloped, steep slope, sparsely forested premining condition that provides limited recreational benefit to a postmining land use of commercial forestry with developed recreational facilities for public use. After mining, the steep terrain would be reclaimed creating a

relatively flat plateau with unconsolidated soil material and gently rolling contours to enhance

the growth and harvesting of commercial species for an identified forest product and to provide

public recreational facilities. Such recreational facilities must be accessible to the public and

could include picnic shelters, boat ramps or even other less intensive recreational uses such as

bird watching or hiking trails that would require structures or developments to support such uses. 

These public recreational uses would provide a significant public benefit, while the harvesting of

the commercial tree species would provide a significant economic benefit to the community by

providing jobs and a valuable forest product.

3. Conclusion

After carefully reviewing SMCRA, the legislative history and the implementing regulations, we

have determined that there is sufficient basis for the interpretation that postmining land uses for

mountaintop removal and steep slope mining operations with an AOC variance must incorporate

an added public or economic benefit in order to justify receiving an exception to the Act s AOC

restoration requirements. This conclusion is supported by the importance Congress placed on

restoration to AOC when it mandated AOC as the standard for all mining operations except in

limited and prescribed circumstances. Furthermore, we find support in the applicability of the

 higher and better use  requirement in OSM s alternative postmining land use regulations. The

following discussion explains our conclusion and the rationale for it in greater detail.
10

II. WHAT ARE THE CRITERIA FOR AN EXCEPTION TO THE AOC

RESTORATION REQUIREMENT?

A. What do our regulations require?

Our regulations (30 CFR 785.14 and Part 824 for mountaintop removal operations and 30 CFR

785.16 and 816.133(d) for steep slope mining operations) generally parallel the statutory

requirements, with a few additions and clarifications. The principal difference is the addition of

language clarifying that the alternative postmining land use requirements of 30 CFR 816.133

apply to mountaintop removal operations and steep slope mining operations seeking an exception

from the AOC restoration requirement. Also, in 30 CFR 785.16(a)(3), we have added criteria for

determining when a proposed steep slope mining operation will be deemed to improve the

watershed.

B. Which Postmining Land Uses Qualify?

SMCRA and OSM s regulations enumerate the types of postmining land uses that qualify for an

exception to the AOC restoration requirements for mountaintop removal and steep slope mining

operations. For an exception to the AOC restoration requirement for mountaintop removal

operations, the postmining land use must be industrial, commercial, agricultural, residential or

public facility (including recreational facilities).  The requirements for variances to the AOC

requirement for steep slope mining operations are the same, except that Congress excluded

 agricultural  from the list and used the term public use  rather than public facility.  

For a postmining land use to qualify for an exception to the AOC restoration requirements, it

must be one of the land uses enumerated in SMCRA and the regulations. Although forestry is

not one of the explicitly authorized postmining land uses, forestry may qualify for an exception

to AOC requirements as an agricultural  use at a mountaintop removal operation. Fish and

wildlife habitat cannot qualify in-and-of-itself as a basis for an exception to AOC requirements. 

However, ponds and wetlands might play a supporting role in the development of a facility that

does qualify for an exception to AOC requirements under the authorized public facility  use.

This paper is designed to provide guidance in granting exceptions to the AOC requirements

where regulatory authorities need clarification. Hence, its organization and content reflect this

need by including discussion of those land use categories that have proved difficult to interpret

consistently. Below, we briefly state how specific land uses do or do not qualify for an AOC

exception, while further detailed explanation follows in Section (C.). 
11

Forestry

Forestry can be approved as an agricultural  postmining land use for mountaintop removal

permits. However, for steep slope mining operations, forestry cannot be approved as a 

postmining land use for a steep slope mining operation with an AOC variance. (See section III.

B., below) 

Agriculture

For mountaintop removal operations, agriculture is an approved postmining land use. Although

forms of low- intensity, low-maintenance agricultural activities such as grazing and pastureland

may be authorized, such uses are discouraged. (See section III.C., below)

For steep slope mining operations, agriculture cannot be approved as a postmining land use for

an AOC variance.

Fish and wildlife habitat

Fish and wildlife habitat (in and of itself) cannot be approved for mountaintop removal

operations nor for steep slope mining operations with an AOC variance. It could, however,

under certain circumstances, play a supporting role as part of an approved postmining land use,

such as public facility.  (See section III. A., below)

Public facility use or public use

The term public facility  is used in SMCRA as a postmining land use for mountaintop removal

operations. The term public use  is used in SMCRA for a variance for steep slope mining

operations. These two terms should be interpreted as being the same. (See section III. A.,

below.) 

Commercial

Commercial operations would include retail or trade of goods or services, including hotels,

motels, stores, restaurants, and other commercial establishments. 

This use applies to both mountaintop removal and steep slope mining operations with an AOC

variance.

Industrial

Industrial operations would include heavy and light manufacturing facilities, production of

materials for fabrication, and storage of products. 
12

This use applies to both mountaintop removal and steep slope mining operations with an AOC

variance.

Residential

Residential areas would include land used for single- and multiple-family housing, mobile home

parks, or other residential lodgings.

This use applies to both mountaintop removal and steep slope mining operations with an AOC

variance.

C. What are the Permitting Requirements?

Section 515(c)(3) of SMCRA and 30 CFR 785.14(c) establish criteria for approval of permits for

mountaintop removal operations. Section 515(e) of SMCRA and 30 CFR 785.16(a) and

816/817.133(d) establish criteria for the authorization of variances from the requirement to

restore AOC for steep slope mining operations. Under paragraphs (c)(1) and (e)(1) of section

515 of SMCRA, States have the option of deciding whether to include provisions for

mountaintop removal operations and AOC variances for steep slope operations in their programs. 

However, if a State decides to authorize these types of operations, its regulatory program must

include permit application requirements and review and approval criteria consistent with the

Federal provisions cited above. 

This document describes procedures for granting exceptions to AOC requirements for certain

postmining land uses. Section III discusses the three land uses which have been most confusing

relative to mountaintop removal: (1) public facility, including a discussion of fish and wildlife

habitat; (2) forestry; and (3) agricultural use in general. Section IV addresses the provisions for

steep slope mining operations, which differ from those applicable to mountaintop removal. The 

postmining land uses commercial,  industrial,  and residential,  although enumerated in

SMCRA and the regulations, are not specifically addressed in this document. However, the

requirements for these land uses would be similar to those provided.

D. Are there any special bond release requirements?

There are no bond release requirements unique to mountaintop removal operations or steep slope

operations with an AOC variance. There is no requirement, either in SMCRA or the regulations,

that postmining land uses be implemented immediately following mining. To obtain full bond

release, the permittee must demonstrate successful completion of all reclamation requirements of

the permit and regulatory program. 30 CFR 800.40(c)(3). Under 30 CFR 816.133(a), one of

those requirements is restoration of all disturbed areas to conditions capable of supporting the

approved postmining land use. For mountaintop removal operations, the permittee must
13

demonstrate adherence to the schedule approved as part of the reclamation plan, including

installation of any infrastructure for which the permittee is responsible under that plan. In

addition, Section 515(c)(2) of SMCRA describes mountaintop removal operations as creating

sites that are capable of supporting postmining land uses  (emphasis added) in accordance with

the requirements of the Act, not as operations that create sites that actually support the approved

postmining land uses. 

III. AOC EXCEPTION REQUIREMENTS FOR MOUNTAINTOP

REMOVAL OPERATIONS

A. Public facility use, with a discussion of fish and wildlife habitat. 

There is some confusion in understanding the difference, if any, of term public facility  as set

forth in SMCRA at section 515(c)(3), and the term public use  as set forth at section 515(e). We

believe that both of these terms refer to public facilities. They appear in similar contexts and

neither the statute nor its legislative history provides any indication that Congress intended that

these terms have different meanings. Therefore, we will use them synonymously.

The land use category of fish and wildlife habitat  is defined at 30 CFR 701.5 under the

definition of Land use  as land dedicated wholly or partially to the management of species of

fish or wildlife.  Neither SMCRA at sections 515(c)(3) or (e)(2) nor the implementing Federal

regulations at 30 CFR 785.14(c)(1) or 785.16(a)(1) authorize fish and wildlife habitat,  as a

postmining land use that qualifies for mountaintop removal or steep slope mining operations. 

Therefore, a permit for mountaintop removal operations cannot be approved with a postmining

land use of fish and wildlife habitat. Likewise, a variance from the AOC requirements cannot be

approved for steep slope mining operations when a postmining land use of fish and wildlife is

proposed. However, when fish and wildlife habitat features such as ponds and wetlands are to be

created as part of a public recreational facility, they may play a supporting role in obtaining an

exception from the AOC restoration requirements as part of a public or public facility postmining

land use. 

Neither SMCRA nor our regulations define public use  or public facility use.  The term

 public facility (including recreational facilities),  however, implies structures or other

significant developments that the public is able to use, or that confer some type of public benefit. 

Depending upon individual circumstances, this term may include schools, hospitals, airports,

reservoirs, museums, and developed recreational sites such as picnic areas, campgrounds,

ballfields, tennis courts, fishing ponds, equestrian and off-road vehicle trails, and amusement

areas, together with any necessary supporting infrastructure such as parking lots and rest

facilities. In general, we expect that sites with a public or public facility postmining land use will

provide the public with access as a matter of right on a non-profit basis. Facilities that meet a

public need, like water supply reservoirs and publicly owned prisons, and facilities that provide a 

benefit, like flood control structures and institutions of higher education also qualify, even if they
14

are not readily accessible to all members of the public or completely non-profit.

However, a public facility does not include land used for private purposes, such as a private

hunting club, because the Act and regulations provide that only public recreational facilities

qualify a site for an exception to the AOC restoration requirements.

With these ideas in mind, we would expect that approval of a public facility (including

recreational facilities)  postmining land use for an AOC variance for mountaintop removal

mining operations permit would require the following:

1. Consultation with the appropriate land use planning agencies, if any, to determine if the

proposed postmining land use constitutes an equal or better economic or public use of the

affected land, as compared with the premining use. [SMCRA §515(c)(3)(A); 30 CFR

785.14(c)(1)(i)]

As with any postmining land use, exceptions to the standards of AOC should only be granted

where it is demonstrated that such exceptions result in an equal or better public or economic use

for which some long-term and significant public benefit will be derived. Many recreational uses

can be conducted on steep slopes that have been regraded to AOC. Therefore, it is not expected

that many permits would be granted for the public facility (including recreational facilities) 

postmining land use. However, through consultations with appropriate land use planning

agencies, the regulatory authority may identify cases where the public would be well served if the

land were reclaimed to a public facility (including recreational facilities)  postmining land. 

These consultations will assist the regulatory authority in determining if there is a public benefit

derived from the resulting post mining land use. The regulatory authority should insure that the

land use agencies are fully aware of the mining operations and reclamation plan and the proposed

post mining contours and land use. We believe that the permit application should discuss the

potential economic and environmental impacts of the proposed operation to assist the regulatory

authority in making this determination even in the absence of any appropriate State or local

planning agencies.

2. The applicant must present specific plans for the proposed postmining land use and

assurances that such use will be:

(i) Compatible with adjacent land uses. [SMCRA §515(c)(3)(B)(i); 30 CFR

785.14(c)(1)(iii)(A)] 

Here, the regulatory authority should require the submittal of documentation that compatibility

has been determined through compliance with planning, zoning, and subdivision ordinances at

the local and State level. Transcripts of all pertinent public meetings and hearings pertaining to

the permit application should be required. The regulatory authority should ensure that any

necessary approvals (e.g., zoning) are received prior to approving a postmining land use. We

believe that the permit application should discuss the potential impacts of the proposed mining
15

operations on adjacent land uses, even in the absence of any appropriate State or local planning

or zoning ordinances.

 

(ii) Obtainable according to data regarding expected need and market. [SMCRA

§515(c)(3)(B)(ii); 30 CFR 785.14(c)(1)(iii)(B)] 

Here, the regulatory authority should require specific demographic data and a market analysis

which demonstrate a need for and the feasibility of a public facility (including recreational

facilities)  postmining land use. The data and analysis should clearly document such things as a

lack of other adequate, and similar public facilities of the proposed type nearby, and the expected

public use of the proposed facility. The data and analysis should be sufficiently detailed as to

allow the regulatory authority to determine the feasibility of the post mining land use and ensure

a public benefit is identified and can be obtained.

(iii) Assured of investment in necessary public facilities. [SMCRA §515(c)(3)(B)(iii);

30 CFR 785.14(c)(1)(iii)(C)] 

Here, the regulatory authority should require evidence such as letters, and other supporting

documents showing how appropriate local, county, regional, state, or Federal agencies intend to

develop or support the proposed public facility (including recreational facilities)  postmining

land use. This would include commitments, where appropriate, related to the development of

access roads, structures, and adequate utilities such as water, storm water and sewage control,

etc.

(iv) Supported by commitments from public agencies where appropriate. [SMCRA

§515(c)(3)(B)(iv); 30 CFR 785.14(c)(1)(iii)(D)] 

Here, the regulatory authority should require documented evidence that appropriate agencies

concur with the proposed public facility (including recreational facilities)  land use and will

provide the necessary reviews, advice, and support for development and implementation of the

postmining land use. For example, support may be needed from agencies such as a Bureau of

Fish and Wildlife, or Bureau of Forestry for advice and concurrence related to park and

recreation land designs. In addition, commitments of support may be needed for police

protection, future maintenance of roads, structures and utilities, fire protection, etc.

(v) Practicable with respect to private financial capability for completion of the

proposed use. [SMCRA §515(c)(3)(B)(v); 30 CFR 785.14(c)(1)(iii)(E)] 

Here, the regulatory authority should require documentation which indicates a reasonable

expectation that private financing, if appropriate, of the public facility (including recreational

facilities)  postmining land use would be available. Such documentation could consist of letters

of commitment by interested parties. However, financial contracts, while desirable, would not be

necessary to fulfill the intent of this requirement.
16

(vi) Planned pursuant to a schedule attached to the reclamation plan so as to

integrate the mining operation and reclamation with the postmining land use.

[SMCRA §515(c)(3)(B)(vi); 30 CFR 785.14(c)(1)(iii)(F)] 

Here, the regulatory authority should require the details of how the specific plans for the

postmining land use will be incorporated into the mining and reclamation operations. The

schedule could serve to identify when the structures, utilities, and drainage controls would be

constructed. The specific plans and schedule submitted must provide sufficient detail to allow

the regulatory authority to assess whether the proposed public facility (including recreational

facilities)  postmining land use is obtainable, practicable, and reasonable.

(vii) Designed by a registered engineer in conformance with professional standards

established to assure the stability, drainage, and configuration necessary for the

intended use. [SMCRA §515(c)(3)(B)(vii); 30 CFR 785.14(c)(1)(iii)(G)] 

Here, the registered engineer must ensure that the design will assure the stability, drainage, and

configuration of the reclaimed land  necessary for the intended public facility  use.

3. The applicant demonstrates compliance with the requirements for acceptable alternative

postmining land uses in 30 CFR 816.133(a) through (c). [30 CFR 785.14(c)(1)(ii)]

Under 30 CFR 816.133(a), a permittee must restore all disturbed areas to a condition capable of

supporting either their premining uses or higher or better uses. Since 30 CFR 785.14(c)(1)(ii)

incorporates the alternative postmining land use requirements of 30 CFR 816.133(a)-(c),

restoration to conditions solely capable of supporting the premining uses is not an option for

mountaintop removal operations. Instead, the permit application must propose higher or better

postmining land uses, which are defined in 30 CFR 701.5 as those uses that have a higher

economic value or nonmonetary benefit to the landowner or the community than the premining

land uses.  As discussed in Part II of this document, this requirement applies in addition to, not

in place of, the requirement in 30 CFR 785.14(c)(1)(i) that the postmining land use be an equal

or better economic or public use compared to the premining use.

Paragraph (b) of 30 CFR 816.133 pertains to determination of premining uses. Since it contains

no requirements unique to alternative postmining land uses, we are not discussing it here.

Paragraph (c) of 30 CFR 816.133 provides that alternative postmining land uses must meet

certain criteria. Specifically, the permit application must demonstrate that:

(1) There is a reasonable likelihood for achievement of the proposed use.

(2) The proposed use does not present any actual or probable hazard to the public health and 

safety, or threat of water diminution or pollution.
17

(3) The proposed use is not impractical or unreasonable.

(4) The proposed use is consistent with applicable land use policies or plans.

(5) There will be no unreasonable delay in implementation of the proposed use.

(6) The proposed use will not cause or contribute to a violation of Federal, State, or local

law.

The fourth criterion duplicates the requirements of 30 CFR 785.14(c)(1)(iv), so the application

need not contain any additional information to satisfy that requirement. Information submitted in

response to 30 CFR 785.14(c)(1)(iii) also may be useful in demonstrating compliance with the

remaining criteria of 30 CFR 816.133(c). However, those criteria are not identical with the

requirements of 30 CFR 785.14(c)(1)(iii), nor are they subsets of those requirements. Therefore,

the application will need to include the additional economic, environmental, and other

information necessary to demonstrate compliance with those criteria.

Determinations of reasonableness or practicality are judgement calls on the part of the regulatory

authority. Consultation with land use planning and zoning agencies may assist the regulatory

authority in making these determinations.

Finally, under 30 CFR 816.133(c), the regulatory authority must consult with the landowner or

land management agency with jurisdiction over the lands in the proposed permit area. The

decision record must include documentation of this consultation and the consideration given to

any comments received.

4. Federal, State, and local government agencies with an interest in the proposed land use

must have an adequate period in which to review and comment on the proposed use. [30

CFR 816/817.133(d)(10)] 

These comments, and the required consultations with appropriate land use planning agencies,

surface landowners, and State environmental agencies will be essential to the regulatory authority

in making the judgements and determinations under these provisions.

B. Forestry.

The term Forestry  is defined under Land use  in Federal regulations at 30 CFR 701.5 as

 Land used or managed for the long-term production of wood, wood fiber, or wood-derived

products.  Neither SMCRA nor the Federal regulations specifically designate forestry as an

approved post mining land use for sites granted an exception from the AOC requirements. 

However, we have recognized forestry as an agricultural post mining land use since 1983

(September 1, 1983; 48 FR39893). The preamble to our 1983 rulemaking revising the definition
18

of land use in 30 CFR 701.5 discusses the relationship of the land uses listed in section 515(c)(3)

of the Act to the land use categories in the definition. Specifically, the preamble states that: 

 Agricultural use is interpreted as including cropland, pastureland or land occasionally cut for

hay, grazingland, and forestry.  Therefore, forestry can be approved for mountaintop removal

operations on the condition that it results in a long term and significant public or economic

benefit. However, because section 515(e) of the Act does not include agriculture  in the list of

approvable postmining land uses, forestry is not allowed for steep slope mining operations with

AOC variances. A permit application with forestry as a postmining land use for a mountaintop

removal operation would have to include the following:

1. Consultation with the appropriate land use planning agencies, if any, to determine if the

proposed postmining land use constitutes an equal or better economic or public use of the

affected land, as compared with the premining use. [SMCRA §515(c)(3)(A); 30 CFR

785.14(c)(1)(i)] 

As with any postmining land use, exceptions to the standards of AOC should only be granted

where it is demonstrated that such exceptions result in an equal or better public or economic use

from which some long term public benefit will be derived. A comprehensive, realistic forest

management plan should accompany any permit application contemplating an AOC variance

based on a postmining land use of forestry. The regulatory authority should seek the advice of

the land use planning agencies in determining if the management plan will insure an equal or

better economic or public use of the land. The regulatory authority should insure that the land

use agencies are fully aware of the mining operations and reclamation plan and the proposed

postmining contours and land use. We believe that the permit application should discuss the

potential economic and environmental impacts of the proposed operation to assist the regulatory

authority in making this determination even in the absence of any appropriate State or local

planning agencies.

In addition, the regulatory authority could determine whether appropriate agencies concur with

the proposed forestry postmining land use, and will provide any necessary reviews, advice, and

support for development and implementation of the postmining land use. For example, support

may be needed from agencies including but not limited to a Bureau of Forestry or a Bureau of

Conservation for advice and concurrence related to tree species, landscape designs, and for

erosion and sedimentation control measures.

2. (a) The applicant must present specific plans for the proposed postmining land use.

[SMCRA §515(c)(3)(B); 30 CFR 785.14(c)(1)(iii)]

The regulatory authority should insure that the applicant provides a credible forest management

plan prepared by a professional forester who is fully cognizant of the final site configuration. 

The forest management plan must discuss the proposed mining and reclamation activities and

their impact on tree establishment and growth, and should also discuss the planting, maintenance

and harvesting of the forest product. The forest management plan should include periodic
19

evaluation of the stand for disease and insect infestation and treatment if necessary, thinning, fire

control, erosion control, soil supplements, control of competing species, harvesting, reforestation,

and transportation of the final product.

The regulatory authority should also provide a copy of the management plan to the appropriate

state agency qualified to assess the validity of the plan, i.e., Bureau of Forestry. This agency

should be charged with reviewing the technical aspects of the plan to insure that: 1) the species

planted is suitable for the postmining land use, 2) the plan provides all steps necessary for the

landowner to protect the stand, and 3) the plan will allow efficient harvest of the timber.

The State agency should further review the plan to determine whether the species proposed to be

planted on the postmining site will produce a sufficient yield to insure the success of the

proposed market use. 

(b) The applicant also provides appropriate assurances that the proposed postmining land

use will be:

(i) Compatible with adjacent land uses. [SMCRA §515(c)(3)(B)(i); 30 CFR

785.14(c)(1)(iii)(A)] 

In addition to requiring compliance with all local ordinances and zoning requirements, the

regulatory authority should insure that there are no adjacent land uses that will make growing or

harvesting of forest products impractical. Transcripts of all pertinent public meetings and

hearings pertaining to the permit application should be required. The responsibility for making

the compatibility determination rests with the regulatory authority, not any other governmental

entity. We believe that the permit application should discuss the potential impacts of the

proposed mining operations on adjacent land uses, even in the absence of any appropriate State

or local planning or zoning ordinances. 

(ii) Obtainable according to data regarding expected need and market. [SMCRA

§515(c)(3)(B)(ii); 30 CFR 785.14(c)(1)(iii)(B)] 

The applicant should demonstrate anticipated need and market for the forest products planned to

be grown on the site. The application must include information such as the frequency with which

the proposed land use occurs in the region and studies of the projected need for or marketability

of the services or products resulting from the proposed use. For example, if the proposed land

use involves pulpwood production, is an existing or proposed pulp mill located within an

economically realistic radius? Or, as another example, within the reasonably foreseeable future,

will there be sufficient demand for the proposed products? Documented studies by individuals or

organizations with expertise in economic forecasting would be particularly persuasive.

(iii) Assured of investment in necessary public facilities. [SMCRA §515(c)(3)(B)(iii);

30 CFR 785.14(c)(1)(iii)(C)] 
20

The application must contain letters or resolutions from State or local governments, water and

sewer authorities, or other public agencies committing those entities to supplying the necessary

roads, water and sewer lines, or other public facilities needed to accomplish the proposed

postmining land use. If no public facilities are necessary, the application must explain why not.

(iv) Supported by commitments from public agencies where appropriate. [SMCRA

§515(c)(3)(B)(iv); 30 CFR 785.14(c)(1)(iii)(D)] 

The application must provide the detailed descriptions of any necessary public facilities, and

must include letters or resolutions from the appropriate public agency committing that agency to

installing, maintaining, or providing advice or assisting to the proposed forestry operation. 

(v) Practicable with respect to private financial capability for completion of the

proposed use. [SMCRA §515(c)(3)(B)(v); 30 CFR 785.14(c)(1)(iii)(E)] 

Reforestation is a time-intensive investment that may not pay off for many years. The regulatory

authority should examine permit applications to determine if the applicant provides substantial

and credible information that suggests that forestry is a practical investment for this area. 

Management plans submitted with the permit application should provide for management of the

forest lands beyond an initial harvest (i.e., sustainable yield). The management plan should

provide estimates on how much it will cost to implement each step of the plan. The regulatory

authority should require proof that the landowners possess the ability to complete and manage the

proposed forestry operation, and financial capability to fund all steps of the management plan. 

Additionally, there should be a demonstrated long term and significant economic or public

benefit to establishing a postmining land use of forestry. Finally, letters from banks or other

lending institutions indicating a willingness to loan money for the type of project proposed would

be helpful.

(vi) Planned pursuant to a schedule attached to the reclamation plan so as to

integrate the mining operation and reclamation with the postmining land use.

[SMCRA §515(c)(3)(B)(vi); 30 CFR 785.14(c)(1)(iii)(F)] 

At a minimum, the reclamation plan must require creation of the specific landforms and site

configuration needed for the proposed postmining land use, along with any necessary roads or

utility corridors. The plan must explain how suitable soils will be created and excessive

compaction avoided. The schedule must identify how mining and reclamation activities will be

structured to accommodate these needs. Limiting compaction and selection of the soil materials

is crucial to success of tree growth on reclaimed areas. The regulatory authority must require the

applicant to designate the areas of tree planting in the permit and specify measures to limit

compaction in those areas. The reclamation plans must limit the amounts and type of equipment

in the tree planting areas during final reclamation to reduce the amount of soil compaction that

occurs. Reclamation must be conducted in a manner that includes handling the material as little

as possible and limiting grading to only that which is necessary to achieve the postmining land
21

use. A professional forester or soil scientist should be consulted to determine the proper soil

horizons and soil depth to segregate during mining and replace after mining to insure sufficient

growth for the targeted forest products.

In addition, the application should designate the species of trees to be planted, and the measures

taken to insure erosion will be controlled so that will not interfere with tree growth. Reclamation

and planting plans should include the establishment of fire breaks and access routes to allow

timber stand management practices. Information regarding the type of equipment to be used

during harvesting should be submitted with the application.

(vii) Designed by a registered engineer in conformance with professional standards

established to assure the stability, drainage, and configuration necessary for the

intended use. [SMCRA §515(c)(3)(B)(vii); 30 CFR 785.14(c)(1)(iii)(G)] 

Applications should be prepared by both a registered engineer and a forester to insure that the

land configuration is compatible with forestry and that compaction in the proposed tree planting

area is kept to a minimum. The types and specifications of equipment contemplated for

harvesting should be specified in the permit application. A professional forester should evaluate

the equipment in light of the final slope configuration to insure the equipment will be able to

operate safely and economically on the site. 

3. The applicant demonstrates compliance with the requirements for acceptable alternative

postmining land uses in 30 CFR 816.133(a) through (c). [30 CFR 785.14(c)(1)(ii)]

Under 30 CFR 816.133(a), a permittee must restore all disturbed areas to a condition capable of

supporting either their premining uses or higher or better uses. Since 30 CFR 785.14(c)(1)(ii)

incorporates only the alternative postmining land use requirements of 30 CFR 816.133(a),

restoration to conditions solely capable of supporting the premining uses is not an option for

mountaintop removal operations. Instead, the permit application must propose higher or better

postmining land uses, which are defined in 30 CFR 701.5 as those uses that have a higher

economic value or nonmonetary benefit to the landowner or the community than the premining

land uses.  As discussed in Part III of this document, this requirement applies in addition to, not

in place of, the requirement in 30 CFR 785.14(c)(1)(i) that the postmining land use be an equal

or better economic or public use compared to the premining use.

Paragraph (b) of 30 CFR 816.133 pertains to determination of premining uses. Since it contains

no requirements unique to alternative postmining land uses, we are not discussing it here.

Paragraph (c) of 30 CFR 816.133 provides that alternative postmining land uses must meet

certain criteria. Specifically, the permit application must demonstrate that:

(1) There is a reasonable likelihood for achievement of the proposed use.
22

(2) The proposed use does not present any actual or probable hazard to the public health and 

safety, or threat of water diminution or pollution.

(3) The proposed use is not impractical or unreasonable.

(4) The proposed use is consistent with applicable land use policies or plans.

(5) There will be no unreasonable delay in implementation of the proposed use.

(6) The proposed use will not cause or contribute to a violation of Federal, State, or local

law.

The fourth criterion duplicates the requirements of 30 CFR 785.14(c)(1)(iv), so the application

need not contain any additional information to satisfy that requirement. Information submitted in

response to 30 CFR 785.14(c)(1)(iii) also may be useful in demonstrating compliance with the

remaining criteria of 30 CFR 816.133(c). However, those criteria are not identical with the

requirements of 30 CFR 785.14(c)(1)(iii), nor are they subsets of those requirements. Therefore,

the application will need to include the additional economic, environmental, and other

information necessary to demonstrate compliance with those criteria.

Determinations of reasonableness or practicality are judgement calls on the part of the regulatory

authority. Consultation with land use planning and zoning agencies may assist the regulatory

authority in making these determinations.

Finally, under 30 CFR 816.133(c), the regulatory authority must consult with the landowner or

land management agency with jurisdiction over the lands in the proposed permit area. The

decision record must include documentation of this consultation and the consideration given to

any comments received.

4. Federal, State, and local government agencies with an interest in the proposed land use

must have an adequate period in which to review and comment on the proposed use. [30

CFR 816/817.133(d)(10)] 

These comments, and the required consultations with appropriate land use planning agencies,

surface landowners, and State environmental agencies will be essential to the regulatory authority

in making the judgements and determinations under these provisions.

C. Agricultural uses.

An exception from the AOC requirements for an agricultural postmining land use is authorized

for mountaintop removal operations (at SMCRA section 515(c)), but is not authorized for steep

slope mining operations (see SMCRA at section 515(e)). For mountaintop removal operations,
23

Congress intended that the agricultural  postmining land use would encompass a broader range

of agricultural activities than simply commercial agricultural uses. However, the Congress also

indicated that this expanded use of the term agriculture  is not intended to favor less managed

and low intensity activities such as grazing, pastureland and the like. Moreover, we cannot

foresee a situation where the requirements of section 515(c)(3) of the Act are applied and a lowintensity agricultural use could be approved. H.R. Rep. No. 95-218, at 109 (1977).

Among other things, 30 CFR 785.14(c) requires consultation with appropriate land use planning

agencies, if any exist; a demonstration that the proposed postmining land use is an equal or

better economic or public use of the land, compared with the premining use; a finding that the

use is not impractical or unreasonable and that it will not involve an unreasonable delay in

implementation; and a demonstration that the proposed use is obtainable according to data

regarding need and market.

An approval of an agricultural  postmining land use for mountaintop removal operations would

require the following.

1. Consultation with the appropriate land use planning agencies, if any, to determine if the

proposed postmining land use constitutes an equal or better economic or public use of the

affected land, as compared with the premining use. [SMCRA §515(c)(3)(A); 30 CFR

785.14(c)(1)(i)] 

As with any postmining land use, exceptions to the standards of AOC should only be granted

where it is demonstrated that such exceptions result in an equal or better public or economic use

for which some significant public benefic will be derived. Through consultations with

appropriate land use planning agencies, the regulatory authority should determine if there is a

need for an agricultural postmining land use. That identified need should be documented and the

beneficial aspects of the agricultural postmining land use should be sufficiently clear. The

regulatory authority should insure that the land use agencies are fully aware of the mining

operations and reclamation plan and the proposed post mining contours and land use. We

believe that the permit application should discuss the potential economic and environmental

impacts of the proposed operation to assist the regulatory authority in making this determination

even in the absence of any appropriate State or local planning agencies.

In addition, the regulatory authority could determine whether appropriate agencies concur with

the proposed agricultural postmining land use, and will provide any necessary reviews, advice,

and support for development and implementation of the postmining land use. For example,

support may be needed from agencies including but not limited to a Bureau of Agriculture and a

Bureau of Conservation for advice and concurrence related landscape designs, and for erosion

and sedimentation control measures. 

2. (a) The applicant must present specific plans for the proposed postmining land use.

[SMCRA §515(c)(3)(B); 30 CFR 785.14(c)(1)(iii)]
24

The regulatory authority should insure that the applicant provides a credible plan for the

proposed agricultural activities. The agricultural plan must discuss the proposed mining and

reclamation activities and their impact on crop establishment and growth, and should also discuss

the planting, maintenance and harvesting of the agricultural products. 

The regulatory authority should also provide a copy of the agricultural plan to the appropriate

state agency qualified to assess the validity of the plan, i.e., Bureau of Agricluture. The

reviewing agency should be fully cognizant of the final site configuration. This agency should be

charged with reviewing the technical aspects of the plan to insure that: 1) the postmining soils are

suitable for the proposed agricultural plants, 2) the plan provides all steps necessary for the

landowner to protect the soil, and 3) the plan will allow efficient harvest of the agricultural

products.

(b) The applicant also provides appropriate assurances that the proposed postmining land

use will be:

(i) Compatible with adjacent land uses. [SMCRA §515(c)(3)(B)(i); 30 CFR

785.14(c)(1)(iii)(A)] 

In addition to requiring compliance with all local ordinances and zoning requirements, the

regulatory authority should insure that there are no adjacent land uses that will make growing,

spraying, or harvesting of agricultural products impractical. Transcripts of all pertinent public

meetings and hearings pertaining to the permit application should be required. The responsibility

for making the compatibility determination rests with the regulatory authority, not any other

governmental entity. We believe that the permit application should discuss the potential impacts

of the proposed mining operations on adjacent land uses, even in the absence of any appropriate

State or local planning or zoning ordinances.

 

(ii) Obtainable according to data regarding expected need and market. [SMCRA

§515(c)(3)(B)(ii); 30 CFR 785.14(c)(1)(iii)(B)] 

Here, the regulatory authority should require specific demographic data and a market analysis

which demonstrate a need for and the feasibility of an agricultural postmining land use. The data

and analysis should be sufficiently detailed to allow the regulatory authority to assess the validity

of the proposal. That is, the data and analysis should clearly document such things as the

expected demand and markets for the agricultural products proposed to be produced. For

example, if the proposed land use involves the commercial production of crops, is a consumer

population, or is a processing facility located within an economically realistic radius? Or, as

another example, within the reasonably foreseeable future, will there be sufficient demand for the

proposed products? Documented studies by individuals or organizations with expertise in

economic forecasting would be particularly persuasive.

(iii) Assured of investment in necessary public facilities. [SMCRA §515(c)(3)(B)(iii);
25

30 CFR 785.14(c)(1)(iii)(C)] 

This may not be applicable to an agricultural use. The application must contain letters or

resolutions from State or local governments, water and sewer authorities, or other public agencies

committing those entities to supplying the necessary roads, water and sewer lines, or other public

facilities needed to accomplish the proposed postmining land use. If no public facilities are

necessary, the application must explain why not.

(iv) Supported by commitments from public agencies where appropriate. [SMCRA

§515(c)(3)(B)(iv); 30 CFR 785.14(c)(1)(iii)(D)] 

The application must provide the detailed descriptions of any necessary public facilities, and

must include letters or resolutions from the appropriate public agency committing that agency to

installing, maintaining, or providing advice or assisting to the proposed agricultural operation. 

The permittee should document any commitments of support that may be needed for police

protection, future construction and maintenance of roads, structures and utilities, fire protection,

schools, etc.

(v) Practicable with respect to private financial capability for completion of the

proposed use. [SMCRA §515(c)(3)(B)(v); 30 CFR 785.14(c)(1)(iii)(E)] 

Here, the regulatory authority should require documentation that indicates a reasonable

expectation that private financing of the development and operation of an agricultural postmining

land use would be available. The permit applications should provide substantial and credible

information that suggests that agriculture is a practical investment for this area. Such

documentation should provide sufficient details of the expected developmental and operational

costs as to allow the regulatory authority to assess whether the proposed agricultural use is

obtainable, practicable, and reasonable. The regulatory authority should require proof that the

landowners possess the financial capability to fund all steps of the operational plan. 

Additionally, there should be a demonstrated long term and significant economic or public

benefit to establishing a postmining land use of agriculture. Finally, letters from banks or other

lending institutions indicating a willingness to loan money for the type of project proposed would

be helpful.

(vi) Planned pursuant to a schedule attached to the reclamation plan so as to

integrate the mining operation and reclamation with the postmining land use.

[SMCRA §515(c)(3)(B)(vi); 30 CFR 785.14(c)(1)(iii)(F)] 

Here, the regulatory authority should require the details of how the specific plans for the

postmining land use will be incorporated into the mining and reclamation operations. At a

minimum, the reclamation plan must require creation of the specific landforms and site

configuration needed for the proposed postmining land use, along with any necessary roads or

utility corridors, even though the permittee is not required to actually implement the postmining
26

land use. The plan must explain how suitable soils will be created and excessive compaction

avoided. The schedule must identify how mining and reclamation activities will be structured to

accommodate these needs. The specific plans and schedule submitted must provide sufficient

detail to allow the regulatory authority to assess whether the proposed agricultural postmining

land use is obtainable, practicable, and reasonable. 

(vii) Designed by a registered engineer in conformance with professional standards

established to assure the stability, drainage, and configuration necessary for the

intended use. [SMCRA §515(c)(3)(B)(vii); 30 CFR 785.14(c)(1)(iii)(G)] 

Applications should be prepared by a registered engineer to insure that the land configuration is

compatible with an agricultural postmining land use, and that compaction in the proposed

agricultural areas is appropriate to the agricultural products to be grown. 

3. The applicant demonstrates compliance with the requirements for acceptable alternative

postmining land uses in 30 CFR 816.133(a) through (c). [30 CFR 785.14(c)(1)(ii)]

Under 30 CFR 816.133(a), a permittee must restore all disturbed areas to a condition capable of

supporting either their premining uses or higher or better uses. Since 30 CFR 785.14(c)(1)(ii)

incorporates only the alternative postmining land use requirements of 30 CFR 816.133(a),

restoration to conditions solely capable of supporting the premining uses is not an option for

mountaintop removal operations. Instead, the permit application must propose higher or better

postmining land uses, which are defined in 30 CFR 701.5 as those uses that have a higher

economic value or nonmonetary benefit to the landowner or the community than the premining

land uses.  As discussed in Part II of this document, this requirement applies in addition to, not

in place of, the requirement in 30 CFR 785.14(c)(1)(i) that the postmining land use be an equal

or better economic or public use compared to the premining use.

Paragraph (b) of 30 CFR 816.133 pertains to determination of premining uses. Since it contains

no requirements unique to alternative postmining land uses, we are not discussing it here.

Paragraph (c) of 30 CFR 816.133 provides that alternative postmining land uses must meet

certain criteria. Specifically, the permit application must demonstrate that:

(1) There is a reasonable likelihood for achievement of the proposed use.

(2) The proposed use does not present any actual or probable hazard to the public health and 

safety, or threat of water diminution or pollution.

(3) The proposed use is not impractical or unreasonable.

(4) The proposed use is consistent with applicable land use policies or plans.
27

(5) There will be no unreasonable delay in implementation of the proposed use.

(6) The proposed use will not cause or contribute to a violation of Federal, State, or local

law.

The fourth criterion duplicates the requirements of 30 CFR 785.14(c)(1)(iv), so the application

need not contain any additional information to satisfy that requirement. Information submitted in

response to 30 CFR 785.14(c)(1)(iii) also may be useful in demonstrating compliance with the

remaining criteria of 30 CFR 816.133(c). However, those criteria are not identical with the

requirements of 30 CFR 785.14(c)(1)(iii), nor are they subsets of those requirements. Therefore,

the application will need to include the additional economic, environmental, and other

information necessary to demonstrate compliance with those criteria.

Determinations of reasonableness or practicality are judgement calls on the part of the regulatory

authority. Consultation with land use planning and zoning agencies may assist the regulatory

authority in making these determinations.

Finally, under 30 CFR 816.133(c), the regulatory authority must consult with the landowner or

land management agency with jurisdiction over the lands in the proposed permit area. The

decision record must include documentation of this consultation and the consideration given to

any comments received.

4. Federal, State, and local government agencies with an interest in the proposed land use

must have an adequate period in which to review and comment on the proposed use. [30

CFR 816/817.133(d)(10)] 

These comments, and the required consultations with appropriate land use planning agencies,

surface landowners, and State environmental agencies will be essential to the regulatory authority

in making the judgements and determinations under these provisions.
28

IV. AOC VARIANCE REQUIREMENTS FOR STEEP SLOPE MINING

OPERATIONS

A. Acceptable postmining land uses.

We believe that the term public use,  which appears in section 515(e)(2) of SMCRA as part of

the requirements for obtaining an AOC variance for steep slope mining operations, has a

meaning identical to that of the term public facility use,  which appears in section 515(c)(3) of

SMCRA as part of the requirements for mountaintop removal operations. They appear in similar

contexts and neither the statute nor its legislative history provides any indication that Congress

intended that these terms have different meanings. Based on characterizations of the public use

provision in floor debate concerning the amendment that became the AOC variance for steep

slope mining operations, we believe that the term public use  refers to public facility uses. 

Therefore, the discussion in Part III.A. of this document concerning acceptable public facility

uses also applies to public uses under the AOC variance provisions for steep slope mining

operations. However, because the permit application and approval requirements for AOC

variances for steep slope mining operations differ from those for mountaintop removal

operations, the discussions of permit application and approval requirements in Part III.A.1., et

seq. do not necessarily apply to AOC variances for steep slope mining operations.

Unlike section 515(c)(3), which lists agricultural uses as acceptable postmining land uses for

mountaintop removal operations, section 515(e)(2) does not include agriculture as an approvable

postmining land use for AOC variances for steep slope mining operations. Therefore, because

we have recognized forestry as an agricultural land use since 1983 (48 FR 39893, September 1,

1983), forestry is not an allowable postmining land use for AOC variances for steep slope mining

operations.

B. Permitting Requirements.

The following discussion pertains to selected permitting requirements for AOC variances for

steep slope mining operations. It does not address all applicable requirements.

1. Consultation with the appropriate land use planning agencies to determine if the

potential use of the affected land is deemed to constitute an equal or better economic

or public use. [SMCRA §515(e)(3)(A); 30 CFR 816/817.133(d)]

The guidance provided in Part III.A.1. of this document applies here. The regulatory authority

should strive to identify cases where the public would be better served if the land were reclaimed

to the proposed postmining land use rather than being returned to AOC. In addition, the

applicant must demonstrate that the site will be suitable for the proposed postmining land use.

2. The postmining land use must be designed and certified by a qualified registered
29

professional engineer in conformance with professional standards established to

ensure the stability, drainage, and configuration necessary for the intended use of

the site. [SMCRA§515(e)(3)(B); 30 CFR 816/817.133(d)(5)]

The discussion in Part III.A.2.(vii) applies here, but for all land uses, not just public uses.

3. The watershed of the permit and adjacent areas is deemed to be improved. 

[SMCRA §515(e)(3)(C); 30 CFR 785.16(a)(3); 30 CFR 816/817.133(d)(6)]

Section 515(e)(3)(C) of SMCRA authorizes the regulatory authority to grant a permit that

provides a variance from AOC restoration requirements for steep slope mining operations if,

among other things, after approval of the appropriate state environmental agencies, the

watershed of the affected land is deemed to be improved.  Our regulations at 30 CFR

785.16(a)(3) and 30 CFR 816/817.133(d)(6) flesh out this provision by requiring that the permit

application demonstrate, and the regulatory authority find, that the proposed mining operations

will improve the watershed of lands within the proposed permit and adjacent areas. Under 30

CFR 785.16(a)(3), the basis for comparison may be either the premining condition of the

watershed or the projected condition of the watershed if the mining operations restored the site to

its AOC.

This regulation [30 CFR 785.16(a)(3)] also specifies that the watershed will be deemed improved

only if the following three conditions are met:

" The proposed operation will reduce either (1) the amount of total suspended solids or

other pollutants discharged to ground or surface water from the permit area so as to

improve public or private uses or the ecology of the water, or (2) flood hazards within the

watershed by lowering the peak flow discharge from precipitation events or thaws.

" During each season, the total flow from the proposed permit area will not vary in a way

that adversely affects surface water ecology or any existing or planned use of surface or

ground water.

" The appropriate State environmental agency or agencies approve the watershed

improvement aspects of the proposed operation and reclamation plan. Our regulations at

30 CFR 816/817.133(d)(6) clarify that this condition applies only when the approval of

those agencies is otherwise required.

The application must include the hydrologic data and analyses necessary to demonstrate that

these three conditions exist.

4. The regulatory authority must assure that the surface landowner of the permit area

has knowingly requested, in writing, that the AOC variance be granted. [SMCRA

§515(e)(2); 30 CFR 785.16(a)(4); 30 CFR 816/817.133(d)(9)]
30

5. In granting a variance, the regulatory authority shall require that only that amount

of spoil will be placed off the mine bench as is necessary to achieve the planned

postmining land use, insure stability of the spoil retained on the bench, and meet all

other SMCRA requirements. [SMCRA §515(e)(4); 30 CFR 816/817.133(d)(8)]

6. The alternative postmining land use requirements of 30 CFR 816/817.133(c) are

met. [30 CFR 785.16(a)(2); 30 CFR 816/817.133(d)(2)]

Our regulations at 30 CFR 816/817.133(c) effectively define alternative postmining land uses as

higher or better uses. As defined in 30 CFR 701.5, higher or better postmining land uses are

those uses that have a higher economic value or nonmonetary benefit to the landowner or the

community than the premining land uses.  Therefore, the permit application must demonstrate

that the proposed postmining land use is a higher or better use than the premining use. This

requirement applies in addition to, not in place of, the requirement in 30 CFR 816/817.133(d)(4)

that the postmining land use be an equal or better economic or public use compared to the

premining use.

Paragraph (c) of 30 CFR 816.133 provides that alternative postmining land uses must meet

certain criteria. Under this paragraph, the permit application must include the economic,

environmental, and other information necessary to demonstrate that:

(1) There is a reasonable likelihood for achievement of the proposed use.

(2) The proposed use does not present any actual or probable hazard to the public health and 

safety, or threat of water diminution or pollution.

(3) The proposed use is not impractical or unreasonable.

(4) The proposed use is consistent with applicable land use policies or plans.

(5) There will be no unreasonable delay in implementation of the proposed use.

(6) The proposed use will not cause or contribute to a violation of Federal, State, or local

law.

Determinations of reasonableness or practicality are judgement calls on the part of the regulatory

authority. Consultation with land use planning agencies may assist the regulatory authority in

making these determinations.

Finally, under 30 CFR 816.133(c), the regulatory authority must consult with the landowner or

land management agency with jurisdiction over the lands in the proposed permit area. This

requirement is effectively subsumed by the requirement in 30 CFR 785.16(a)(4) and
31

816/817.133(d)(9) that the surface landowner submit a written request for a variance.

7. Federal, State, and local government agencies with an interest in the proposed land

use must have an adequate period in which to review and comment on the proposed

use. [30 CFR 816/817.133(d)(10)] 

The regulatory authority must consider these comments and the result of the required

consultations with appropriate land use planning agencies, surface landowners, and State

environmental agencies when making the judgements and determinations required under these

rules.
32

Appendix

Statutory and Regulatory Citations

FEDERAL

PROVISIONS

Approximate

Original Contour

(AOC) Restoration

Mountaintop

Removal

Operations

Steep Slope AOC

Variance

SMCRA citations 515(b)(3) 515(c) 515(e)

30 CFR citations 816.102-816.107

817.102-817.107

785.14, Part 824 785.16,

816/817.133(d)