OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning

Page 1 of 3

COALEX STATE INQUIRY REPORT - 83

June 4, 1987

Barry Bailey 

Assistant to the Director 

Mining and Minerals Division 

New Mexico Energy and Minerals Department 

525 Camino de los Marquez 

Santa Fe, New Mexico 87501

TOPIC: SMALL DEPRESSIONS

INQUIRY: 30 CFR Sections 816.102 and 817.102 allow the construction of small depressions 

if they are needed to retain moisture, minimize erosion, create and enhance wildlife or assist 

revegetation. Please research the legislative history of SMCRA to determine how Congress 

intended to define the term "small depressions".

SEARCH RESULTS: See below. 

_____________________________________________________________________________

LEGISLATIVE HISTORY

Section 515(b)(3) of SMCRA requires the operator to restore the mined area to approximate 

original contour with all highwalls, spoil piles, and depressions eliminated unless "small 

depressions are needed in order to retain moisture to assist revegetation or as otherwise 

authorized pursuant to [the] Act." (30 CFR Sec. 1265(b)(3)) A search was conducted of the 

legislative history file in the COALEX Library to determine whether Congress specified any 

parameters regarding the definition of a "small depression".

The provision allowing the retention of small depressions in certain circumstances was included 

in every version of SMCRA proposed beginning in 1974. However, the legislative history 

provides very little insight into the meaning of the phrase.

The first discussions concerning the benefits of retaining small depressions occurred in the first 

session of the 93rd Congress. In testimony on the problems of revegetating mined land in the 

West, one commenter noted that, while most of the area being discussed was largely barren, 

"where vegetation occurred, it occurred in the small depressions which caught rainfall and snow 

melt." (Coal Surface Mining and Reclamation: Hearings Before the Subcommittee on Minerals, 

Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 93rd Cong., 1st 

Sess. 83 (1973)) Thus, it appears that Congress was at least aware of the benefits of allowing an 

operator to leave a depression of sufficient size to hold water.

The first version of the small depression exception appeared in bills passed by both houses in the 

second session of the 93rd Congress. The language used in these earlier bills was slightly 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning

Page 2 of 3

different than that found in the 1977 version, and read: "...and grade in order to restore the 

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

eliminated (unless small depressions are needed in order to retain moisture to assist revegetation 

or as otherwise authorized pursuant to paragraph (9) of this subsection)...." Paragraph (9) of the 

passage dealt with permanent impoundments, and allowed them to be left if approved in the 

mining plan and if certain requirements were met. (120 Cong. Rec. 24594 (1974)) Thus, it 

appears that Congress intended to tie the size of the small depressions to its ability to retain 

water; possibly the capacity of the depression and the amount of water it would retain was the 

critical element; however, Congress made no attempt to specifically define the parameters of the 

definition.

By 1975, the language concerning small depressions was changed so that it was identical to the 

version passed in 1977. No reason was given for this change, and Congress made no further 

attempt to define what it meant by the phrase. Thus, the legislative history provides no real 

insight into the factors which differentiate a "small depression" from an impoundment. 

REGULATORY HISTORY

As with the legislative history, the regulations promulgated by OSM provide very little insight 

into the agency's interpretation of the phrase "small depressions". The original regulation dealing 

with small depressions was found at 30 CFR Sec. 816.102(c), and read as follows: 

"Small depressions may be constructed if they --

(1) Are approved by the regulatory authority to minimize erosion, conserve soil moisture, or 

promote vegetation;

(2) Do not restrict normal access; and

(3) Are not inappropriate substitutes for lower grades on the reclaimed lands." 

(43 FR 41661, 41895 (1978))

Thus, small depressions were required to meet the above three tests to be approved. Note, 

however, that it appears from the language used in the regulation that whether or not something 

was considered to be a "small depression" was left to the discretion of the regulatory authority. 

This language was not explained in the preamble to the proposed regulations, and apparently, 

OSM received no comments on this rule. Thus, the rule was implemented with no discussion.

In 1983, OSM revised the regulation pertaining to small depressions and moved it from Sec. 

816.102(c) to Sec. 816.102(h). In this instance, there was some limited discussion as to the 

meaning and application of the rule. In response to a comment suggesting that the language used 

in subsection (h) be added to subsection (a)(2) (the section essentially tracks the language of the 

Act), OSM replied:

"The depressions which Section 151(b)(3) of the Act requires to be removed are those formed 

during the mining operation before any backfilling and grading of the spoil has been 

accomplished. They may be of any size and are not planned as part of the postmining land-use 

plan. The small depressions allowed to remain by the Act and Sec. 816.102 are small depressions 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning

Page 3 of 3

used for specific purposes and formed during the reclamation operation." (48 FR 23355, 23358 

(1983)) 

Another commenter suggested that under Sec. 816.102(h), depressions could be used as a 

method of requiring less backfilling in the final cut area of a mine. OSM disagreed, saying: 

"The depression would undoubtedly collect water during some periods of the year. However, the 

Act, in Section 151(b)(3), does not allow depressions to circumvent the AOC restoration 

requirements. Also, the depressions described by the commenter should not qualify as small 

depressions under Sec. 816.102(h). Depressions cannot substitute for fully backfilling the mining 

pit. Congress intended that depressions that would collect and store water be barred from the 

surface area unless permanent impoundments are approved." (Id. at 23363) 

This regulation, which has not been revised since 1983, now reads: "Small depressions may be 

constructed if they are needed to retain moisture, minimize erosion, or assist revegetation." Note 

that the language which apparently gave the regulatory authority the discretion to determine what 

constituted a "small depression" was eliminated. Furthermore, the language quoted above, in 

which OSM indicates Congressional intent regarding these depressions, was actually found in 

the section of a Congressional report which dealt with impoundments. Thus, it is nearly 

impossible to determine what Congress meant by the term "small depression", but one's 

conclusion can only be that the definition was left to the discretion of the regulatory authority.

BOARD DECISIONS

A search was conducted of the Administrative Law Judge and Interior Board of Land Appeals 

files for administrative decisions pertaining to the definition of "small depressions". No 

applicable cases were located.

ATTACHMENTS

A. Excerpt, Coal Surface Mining and Reclamation: Hearings Before the Subcommittee on 

Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 

93rd Cong., 1st Sess. 83 (1973). 

B. 120 Cong. Rec. 24594 (1974). 

C. 43 FR 41661 (1978). 

D. 48 FR 23355 (1983).