OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Terri H. Petruska

Page 1 of 2

COALEX STATE INQUIRY REPORT - 53

August 14, 1985

Andrew Cammack, Legislative Analyst

Legislative Research Commission

State Capital Building

Frankfort, Kentucky 40601

TOPIC: REVEGETATION REQUIREMENTS

INQUIRY: Are there any guidelines in the legislative history or regulations that specify when 

tree cover or fish and wildlife enhancement may be required for the revegetation cover of mined 

areas? Do any other states contain an effective mechanism that encourages forestry or wildlife 

enhancement either: (1) on land that was originally forested or (2) on land that did not have 

forest originally. In particular, an investigation of the following state programs would be helpful:

Virginia, West Virginia, Ohio, and Indiana.

SEARCH RESULTS: If the pre-mining land use was forest or wildlife habitat, the mechanism 

by which the regulatory authority can require reforestation appears straightforward. The 

revegetation standard applied under the Act is based on the approved post-mining land use which 

in turn is a function of the pre-mining use of the disturbed land. SMCRA Sec. 515(b)(2) requires 

that the permittee "restore the land affected to a condition capable of supporting the uses which it 

was capable of supporting prior to any mining, or higher or better uses of which there is 

reasonable likelihood". (See SMCRA Sec. 515(b)(19), 30 CFR Sec. 816.133.)

OSM's 1979 regulations included specific revegetation success standards for tree and shrub 

stocking of forest lands. (See 44 FR 15414, MARCH 13, 1979.) These regulations were removed 

from the federal code in September, 1983 to provide additional flexibility to the states in 

establishing revegetation requirements applicable to the particular state's climate, soils, and other 

local conditions. (48 FR 40160 (SEPTEMBER 2, 1983), 30 CFR Sec. 816.116) The preamble to 

the final rule implies that a state could elect to continue to prescribe standards for tree or shrub 

planting on forest or wildlife lands.

The regulations are unclear on the question of whether the regulatory authority can prohibit an 

operator from changing the land use if the pre-mining land use was forestry or wildlife habitat. 

The Act and regulations include provisions for instances where the proposed post-mining land 

use may differ from the pre-mining land use -- such as reclaiming land for agricultural, 

commercial forestry, or recreational use. (SMCRA Sec. 515(c)(3) and 30 CFR Sec. 816.133(c))

The regulations imply that the regulatory authority may disapprove such a change even if the 

criteria are met. Thus, Sec. 816.133 of the regulations specifies that "higher or better uses may be 

approved by the regulatory authority". Not that they must be approved. No legislative history or 

case law was identified on the issue of whether such approval is discretionary.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Terri H. Petruska

Page 2 of 2

A search of COALEX was conducted to identify legislative intent where the regulatory authority 

could require the coal mining operation to establish a forestry or wildlife post-mining use when 

the pre-mining use was not forestry or wildlife habitat. None was identified. Although a 

provision was included to allow, for example, commercial forestry as a new post-mining use, it 

appears to be the prerogative of the permittee to propose the alternative.

A search of the state regulatory programs also failed to identify any provisions in state programs 

requiring an operator to adopt a post-mining use plan for the mined area different than that 

established as its pre-mining use.

A final consideration is the requirements of Sec. 515(b)(24) of SMCRA and 30 CFR Sec. 816.97 

which require preservation and enhancement of fish and wildlife resources. Arguably this section 

would give the regulatory authority some latitude with respect to requirements for restoration of 

wildlife habitat or enhancement of areas to wildlife habitat. No legislative history or other 

indication in the COALEX file was found, however, clearly indicating that this section was 

intended to allow the regulatory authority to require an operator to create a wildlife habitat if one 

did not previously exist in the area.

ATTACHMENTS

A. 44 FR 15414 (1979).

B. 48 FR 40160 (1983).