OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE INQUIRY REPORT - 311

January 1995

Thomas Mitchell

Assistant Attorney General

Office of the Attorney General

#3 Triad, Suite 475

355 West North Temple

Salt Lake City, Utah 84180-1204

TOPIC: WATER RIGHTS AND REPLACEMENT UPDATE

INQUIRY: Please provide the most recent cases and other materials available on water 

rights and replacement issues. Broaden the research to include case law addressed to 

the issue of the burden of proof as it relates to water replacement and as it relates to the 

scope of review where the issue involves a revision to an existing permit to mine 

additional coal. 

SEARCH RESULTS: Research was conducted using the COALEX Library, LEXIS and 

existing COALEX State Inquiry Reports. Several recent Pennsylvania and Ohio 

decisions were identified that address the issue of proving responsibility for dewatering 

wells, contaminating water supplies, replacing water supplies, etc. Other cases were 

identified that address other aspects of the water supply and replacement question. No 

cases were identified that specifically discussed water replacement where a permit 

revision is involved. However, the preambles to proposed and final rules on permit 

revisions, hydrology and water replacement discuss revision requirements, and operator 

and regulatory authority responsibility with regard to these issues. Copies of the 

materials listed below are attached.

PRIOR COALEX REPORTS

COALEX STATE INQUIRY REPORT - 241, "Replacement of water supply -

payment of ongoing costs" (1993).

COALEX STATE INQUIRY REPORT - 203, "Water supply and replacement for 

underground mining (Includes Reports 35 & 93)" (1992). 

COALEX STATE COMPARISON REPORT - 210, "Subsidence: compensation for 

damaged structures and water supply" (1992). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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INTERIOR ADMINISTRATIVE DECISIONS

MARTHA AND ROY A. MCBRIDE, 129 IBLA 112, IBLA 91-112 (1994).

"Under 30 CFR 816.42(h), any person who conducts surface mining activities is 

required to replace the water supply of an owner of interest in real property who obtains 

all or part of his or her supply of water for domestic, agricultural, industrial, or other 

legitimate use from an underground or surface source, where the water supply has 

been adversely impacted by contamination, diminution, or interruption proximately 

resulting from the surface mining activities. The replacement requirement is controlled 

by the owner's pre-existing uses of the water supply."

PENNSYLVANIA ADMINISTRATIVE DECISIONS

HAYDU v COMMW. OF PENN. DEPT. OF ENVIRONMENTAL RESOURCES, EHB 

Docket No. 92-154-MJ, 1994 Pa Envirn LEXIS 40 (1994). 

The Board found the Haydu failed to show that the Department abused its discretion in 

issuing a permit to PBS Coals, Inc. The evidence showed that the two seam mines will 

not affect the well functioning as a replacement water supply which is located above the 

seam mines. Coal was extracted from the two mines "to minimize the amount of 

subsidence that will occur. Any subsidence that does occur will fall far short of reaching 

the E seam aquifer or [the replacement well].... Moreover, should any repair work or 

replacement be required for [the replacement well], this is provided for by the trust 

agreement."

BEARER T/D/B/A NORTH CAMBRIA FUEL CO. v COMMW. OF PENN. DEPT. OF 

ENVIRONMENTAL RESOURCES, EHB Docket No. 83-091-G, 1993 Pa Envirn LEXIS 

82 (1993).

SYNOPSIS: "The Department met its burden of establishing that the water supplies, 

which were in the vicinity of the operator's mine site, were degraded by his mining 

activities. Therefore, the Department's order to restore the supplies to a condition 'equal 

to or better than the pre-mining quantity and quality' was not an abuse of discretion."

STATE CASES

CARLSON MINING CO. v DEPT. OF ENVIRONMENTAL RESOURCES (DER), 639 A 

2d 1332 (Pa Commw Ct 1994). CARLSON MINING CO. v COMMW. OF PENN., 

DEPT. OF ENVIRONMENTAL RESOURCES, EHB Docket No. 91-547-E, 1993 Pa 

Envirn LEXIS 70 (1993).

The court affirmed the orders of the Environmental Hearing Board in ruling on the three 

issues on appeal:
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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1. Carlson was required to provide for the increased operation and maintenance 

costs of the Mackey replacement water supply on a permanent basis.

2. The increased operation and maintenance costs of the Mackey replacement 

water supply was sufficient to require Carlson to compensate Mackey ad 

infinitum. (The five-fold increase in the cost of operating and maintaining the 

water supply was "more than marginally higher" -- it was "excessive".)

3. DER may require operators to create individual trusts or escrow accounts to 

provide for the payments of additional costs.

HINDMAN v SCHIAPPA, 1990 Ohio App LEXIS 5664 (Ohio Ct App 1990). [Excerpts]

The court held that the plaintiff failed to establish that "their shortage of water was 

directly the result of mining operations nor did the appellants collectively establish the 

quantity of their water supply before mining operations as compared to after mining 

operations." 

SME BESSEMER CEMENT, INC. v MAMONE, 1988 Ohio App LEXIS 110 (1988).

An investigation by the Department of Natural Resources, Division of Reclamation 

concluded that the Krug well was dewatered as a result of the interception of SME 

Bessemer Cement's surface coal mining operations with the flooded, abandoned "Old 

McKinley mine". The Division determined that each of the three replacement wells 

drilled by SME Bessemer Cement were inadequate. In the CO, the Division contended 

that the replacement water supply "failed to duplicate or even approach premining 

sodium levels of the Krug water supply and, further, that SME Bessemer Cement, Inc. 

had failed to perform other necessary actions for water replacement such as the 

plugging of the two other replacement wells so as to prevent well to well 

contamination...." 

The court affirmed the Reclamation Board of Review's ruling vacating the CO holding 

that there was no premining test sample of the Krug water supply to substantiate the 

view of the Division.

NATURAL RESOURCES COMMN. (NRC) OF INDIANA v AMAX COAL CO., 638 NE 

2d 418 (Indiana 1994).

This consolidated case involves the attachment of conditions to Amax's permit 

prohibiting the use of "dewatering" wells and requiring additional surveys on the 

possible effects of the depressurizing wells and the related issue of B & LS 

Contracting's planned pumping of water from its mining pits which would drain adjacent 

property owners' lakes.

In the AMAX case, the court held that NRC was acting within its statutory authority 

when it conditioned approval of the AMAX permit upon further hydrologic studies after 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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having determined that the proposed plan to preserve the hydrologic balance was 

deficient.

As in the B & LS case, the court held that the Department of Natural Resources (DNR) 

was acting within its statutory authority when ordering B & LS to revise its permit. 

"Following AMAX, the DNR made a retroactive determination that B & LS's application 

was not in compliance with I-SMCRA, and ordered B & LS to show either that B & LS 

operations would not cause damage as the result of the lowering of off-site water 

bodies, or that B & LS had purchased a right of entry to those off-site lakes that allowed 

the lakes to be lowered. The DNR has the authority to require a permittee to revise or 

modify a permit, although the revision must be based upon a written finding and is 

subject to notice and hearing requirements."

CARTER v AMERICAN AGGREGATES CORP., 611 NE 2d 512 (Ohio Ct App 1992).

The court affirmed the trial court's ruling that the plaintiffs' claim was barred by the 

statute of limitations. American Aggregates interfered with the plaintiffs' underground 

water supply, causing their well to dry up in 1980. Plaintiffs conceded that "they have 

suffered no compensable injuries since 1982 when they drilled the second well, which 

afforded them adequate water acceptable both in quality and quantity."

VILLAGE OF PLEASANT CITY v OHIO DEPT. OF NATURAL RESOURCES, DIV. OF 

RECLAMATION, 617 NE 2d 1103 (Ohio 1993). 

SYLLABUS: "In determining the unsuitability of lands for coal mining, R.C. 1513.073 

(A)(2)(c) requires consideration of the impact that mining and reclamation could have on 

the long-range productivity of aquifers and aquifer recharge areas, not solely the impact 

on their current use as a water supply."

REGULATORY HISTORY

Attached for background are the following preambles to proposed and final rules, 

published in the Federal Register:

PERMIT REVISION/RENEWAL/SIGNIFICANT REVISION

1. 44 FR 14902 (MARCH 13, 1979). Permanent program final preamble -- Final 

rule. Sections 788.12 Permit revisions & 788.13 Permit renewals.

2. 48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Permitting. 

3. 51 FR 21574 (JUNE 13, 1986). Notice of availability of a petition to initiate 

rulemaking. Guidelines for significant revisions. 

4. 52 FR 6827 (MARCH 5, 1987). Notice of decision on rulemaking petition. 

Guidelines for significant revisions. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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5. OSM DIRECTIVE, Subject No. REG-21, Transmittal No. 398, "Findings and 

Determinations for Revisions and Renewals of Federal Permits" (Issued 

November 10, 1987).

HYDROLOGY

1. 48 FR 43956 (SEPTEMBER 26, 1983). Final rules. Hydrology permitting and 

performance standards.

2. 53 FR 36394 (SEPTEMBER 19, 1988). Final rule. Permit applications; probable 

hydrologic consequences determination. 

WATER REPLACEMENT

1. 58 FR 50174 (SEPTEMBER 24, 1993). Proposed rules. Underground mining 

performance standards.

ATTACHMENTS

1. COALEX STATE INQUIRY REPORT - 241, "Replacement of water supply -

payment of ongoing costs" (1993). 

1. CITIZENS ORGANIZED AGAINST LONGWALLING v DIV. OF 

RECLAMATION, OHIO DEPT. OF NATURAL RESOURCES; SOUTHERN 

OHIO COAL, INTERVENOR, 535 NE 2d 687 (Ohio Ct App 1987). 

2. CITIZENS ORGANIZED AGAINST LONGWALLING, ET AL. v 

SOUTHERN OHIO COAL (SOCCO), 1989 Ohio App LEXIS 2262 (Ohio Ct 

App 1989). 

3. GIOIA COAL COMPANY v COMMONWEALTH OF PENN. DEPT. OF 

ENVIRONMENTAL RESOURCES, EHB Docket No. 84-211-G, 1986 Pa 

Envirn LEXIS 157 (1986). 

4. BUFFY AND LANDIS v COMMONWEALTH OF PENN. DEPT. OF 

ENVIRONMENTAL RESOURCES (DER) AND PBS COALS, INC., EHB 

Docket No. 90-284-E, 1990 Pa Envirn LEXIS 185 (1990). 

5. CARLSON MINING v COMMONWEALTH OF PENN. DEPT. OF 

ENVIRONMENTAL RESOURCES, EHB Docket No. 91-547-E, 1992 Pa 

Envirn LEXIS 161 (1992). 

6. AMBROSIA COAL v COMMONWEALTH OF PENN. DEPT. OF 

ENVIRONMENTAL RESOURCES, EHB Docket No. 85-078-W, 1986 Pa 

Envirn LEXIS 129 (1986). 

7. OSM DIRECTIVE, Subject No. REG-27, Transmittal No. 474, "Water 

Replacement" (Issued: November 19, 1988). 

8. 44 FR 14902 (3/13/79). Permanent Program Final Preamble -- Final Rule. 

816.54 Hydrologic balance: Water rights and replacement. 

9. 48 FR 43956 (9/26/83). Final rules. Geology permitting. 816.41(h) Water 

rights and replacement. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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10.COALEX STATE INQUIRY REPORT - 203, "Water supply and 

replacement for underground mining (Includes Reports 35 & 93)" (1992). 

[ENCLOSED WITHOUT ATTACHMENTS.] 

11.COALEX STATE COMPARISON REPORT - 210, "Subsidence: 

compensation for damaged structures and water supply" (1992). 

[ENCLOSED WITHOUT ATTACHMENTS.]

2. COALEX STATE INQUIRY REPORT - 203, "Water supply and replacement for 

underground mining (Includes Reports 35 & 93)" (1992). [Only Reports 35 & 93 

are attached.] 

A. 56 FR 33170 (JULY 18, 1991). Notice of inquiry. Underground mining 

performance standards -- Subsidence.] 

B. 56 FR 37194 (AUGUST 5, 1991). Notice of public meeting. Underground 

mining performance standards -- Subsidence. 

C. 56 FR 49286 (AUGUST 14, 1991). Notice of public meeting. Underground 

mining performance standards -- Subsidence. 

D. NATIONAL WILDLIFE FEDERATION v HODEL, 839 F 2d 694 (DC Cir 

1988). 

E. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble --

Final Rule. 

a. Section 817.54. Hydrologic balance: Water rights and replacement. 

b. Introduction to Part 783. Underground Mining Permit Application -

Minimum Requirements for Information on Environmental 

Resources. 

c. Section 783.17. Alternate water supply information.

F. IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION 

[PSMRL I (ROUND II)], 19 ERC (BNA) 1477 (D DC May 16, 1980). 

G. 48 FR 43956 (SEPTEMBER 26, 1983). Final rules. Hydrology Permitting 

and Performance Standards. 

H. IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION 

[PSMRL II (ROUND III)], 620 F Supp 1519 (D DC July 15, 1985). 

I. COALEX STATE INQUIRY REPORT - 35, "Water Rights and 

Replacement" (1985). 

J. COALEX STATE INQUIRY REPORT - 93, "Water Rights and 

Replacement" (1988). 

K. 120 CONG. REC. H23639 (daily ed. July 16, 1974) (statement of Rep. 

Evans). [Excerpt] 

L. 123 CONG. REC. S8083 (daily ed. May 20, 1977) (statement of Sen. 

Danforth). 

M. 1977 versions of SMCRA sections: 

a. S. 7, 95th Cong, 1st Sess (January 10, 1977). Excerpt from Sec. 

415 Environmental Protection Performance Standards. 

b. HR 2, 95th Cong, 1st Sess (April 1, 1977). New sec. 717. Water 

Rights and Replacement of Supplies. 

c. HR REP. NO. 218, 95th Cong, 1st Sess 181 (April 22, 1977). 

Section-by-Section Analysis. Section 717 - Water Rights.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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N. 52 FR 45920 (DECEMBER 2, 1987). Final rule. Underground coal mining 

activities; hydrologic balance; protection recharge capacity. 

O. UTAH POWER & LIGHT CO. v OSM, Docket Nos. UT-001; TU 6-1-PR 

(1988). 

P. OSM DIRECTIVE, Subject No. REG-27, Transmittal No. 474, "Water 

Replacement" (Issued October 19, 1988). 

COALEX STATE COMPARISON REPORT - 210, "Subsidence: compensation 

for damaged structures and water supply" (1992). 

MARTHA AND ROY A. MCBRIDE, 129 IBLA 112, IBLA 91-112 (1994). 

HAYDU v COMMW. OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES, 

EHB Docket No. 92-154-MJ, 1994 Pa Envirn LEXIS 40 (1994). 

BEARER T/D/B/A NORTH CAMBRIA FUEL CO. v COMMW. OF PENN., DEPT. 

OF ENVIRONMENTAL RESOURCES, EHB Docket No. 83-091-G, 1993 Pa Envirn 

LEXIS 82 (1993). 

CARLSON MINING CO. v DEPT. OF ENVIRONMENTAL RESOURCES (DER), 

639 A 2d 1332 (Pa Commw Ct 1994). 

CARLSON MINING CO. v COMMW. OF PENN., DEPT. OF ENVIRONMENTAL 

RESOURCES, EHB Docket No. 91-547-E, 1993 Pa Envirn LEXIS 70 (1993). 

HINGMAN v SCHIAPPA, 1990 Ohio App LEXIS 5664 (Ohio Ct App 1990). 

[Excerpts] 

SME BESSEMER CEMENT, INC. v MAMONE, 1988 Ohio App LEXIS 110 

(1988). 

NATURAL RESOURCES COMMN. (NRC) OF INDIANA v AMAX COAL CO., 

638 NE 2d 418 (Indiana 1994). 

CARTER v AMERICAN AGGREGATES CORP., 611 NE 2d 512 (Ohio Ct App 

1992). 

VILLAGE OF PLEASANT CITY v OHIO DEPT. OF NATURAL RESOURCES, 

DIV. OF RECLAMATION, 617 NE 2d 1103 (Ohio 1993). 

44 FR 14902 (MARCH 13, 1979). Permanent program final preamble -- Final 

rule. Sections 788.12 Permit revisions & 788.13 Permit renewals. 

48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Permitting. 

51 FR 21574 (JUNE 13, 1986). Notice of availability of a petition to initiate 

rulemaking. Guidelines for significant revisions. 

52 FR 6827 (MARCH 5, 1987). Notice of decision on rulemaking petition. 

Guidelines for significant revisions. 

OSM DIRECTIVE, Subject No. REG-21, Transmittal No. 398, "Findings and 

Determinations for Revisions and Renewals of Federal Permits" (Issued November 10, 

1987). 

48 FR 43956 (SEPTEMBER 26, 1983). Final rules. Hydrology permitting and 

performance standards. 

53 FR 36394 (SEPTEMBER 19, 1988). Final rule. Permit applications; probable 

hydrologic consequences determination. 

58 FR 50174 (SEPTEMBER 24, 1993). Proposed rules. Underground mining 

performance standards. 
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