OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 1 of 4

COALEX STATE INQUIRY REPORT – 142

July 9, 1990

Floyd Durham, Chief

Surface Mining and Reclamation Section

Division of Pollution Control and Ecology

P.O. Box 9583

Little Rock, AR 72219

TOPICS: FISH AND WILDLIFE INFORMATION REQUIREMENTS 

INQUIRY: Locate the Federal Register notices which discuss the fish and wildlife information 

required in permit applications. Are there any references to "minimum standards" in the 

preambles of those notices?

SEARCH RESULTS: Using the public materials available in LEXIS, several relevant Federal 

Register notices were identified. Copies of the notices are attached.

FEDERAL REGISTER NOTICES

45 FR 51547 (AUGUST 4, 1980). Notice of suspension. 

As a result of the court's ruling in IN RE: PERMANENT SURFACE MINING REGULATION 

LITIGATION, No 79-1144, Memorandum Opinion (D D C February 26, 1980), OSM suspended 

30 CFR 779.20, 780.16, 783.20 and 784.16. See CHRONOLOGY OF EVENTS, below.

[NOTE: The text of this Federal Register notice is not included here.]

50 FR 7274 (FEBRUARY 21, 1985). Notice of suspension.

In this "interpretative statement", OSM removed "a previous suspension addressing fish and 

wildlife information requirements in permit applications, thereby reinstating the fish and wildlife 

information rules originally promulgated in 1979. OSM is taking these actions chiefly as a result 

of a District Court decision in Round II of the present litigation on OSM's permanent program 

regulations."

30 CFR 779.20, 780.16, 783.20 and 784.21 were reinstated. 

51 FR 19498 (MAY 29, 1986). Proposed Rule.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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These regulations proposed to delete 30 CFR 779.20 and 783.20, which provided for permit 

requirements for fish and wildlife resources information for surface and underground mining, 

respectively, amend the language and incorporate them into 30 CFR 780.16 and 784.21 as 

paragraph (a). The protection and enhancement planning requirements for surface and 

underground mining in these sections would also be amended and renumbered paragraph (b). 

"Proposed Section 780.16(a) would go beyond the requirements of existing Section 779.20 by 

setting specific minimum requirements for resource information that must be included in each 

application. It would establish a minimum standard in the event that no guidance has been 

established by fish and wildlife agencies....OSM's revision of the rule is intended to ensure the 

minimum reporting of resource information on species and habitats with special significance." 

52 FR 47352 (DECEMBER 11, 1987). Final Rule.

Regulations regarding "fish and wildlife resource information and planning requirements, and 

standards applied to the protection of fish and wildlife values" were revised in order "to comply 

with recent court decisions" and to "clarify" existing rules. 

Most commenters who responded to OSM's request, in the preamble of the proposed rules, for 

comments on "the experiences and events of the four and one-half years when the Federal rules 

were suspended", indicated that "Federal regulation requiring both premining resource 

information and protection and enhancement plans are necessary for the protection of fish and 

wildlife resources." OSM concluded: "Although certain states may be protecting fish and 

wildlife resources...these rules are needed to define Federal standards regarding the submission 

of permit information needed to assure minimum standards of protection." 

The final rule clarifies the roles of federal and state fish and wildlife agencies: they act "in an 

advisory capacity to the regulatory authorities. Regulatory authorities retain their responsibility 

for making decisions on the completeness and adequacy of applications for SMCRA permits." 

Regarding one commenter's suggestions on "minimum standards" for "non-critical" species and 

habitats, OSM responded by adding a requirement to 780.16(a) that "the resource information be 

sufficient to design the protection and enhancement plan." Because of the "diversity and 

variability of lands between and within regions", OSM determined that "a more practical and as 

protective approach" was for the regulatory authority to "make these decisions within the 

framework of that information needed to assure an appropriate fish and wildlife management 

plan."

OSM determined that the information and planning requirements could be addressed under one 

section; therefore, Sections 30 CFR 779.20 and 780.16 were removed as proposed. [See the 

attached notice for discussion of the specific rule revisions.] 

CHRONOLOGY OF EVENTS
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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As part of their challenge to the 1979 permanent regulations (IN RE: PERMANENT SURFACE 

MINING LITIGATION, No. 79-1144 (D D C 1980)), industry plaintiffs argued that "there was 

no statutory authorization in Sections 507, 508, or 515(b)(24) of the Act to require fish and 

wildlife information in the permit application or the reclamation plan. Since sections 507 and 

508 of the Act gave the regulatory authority power to decide on other necessary requirements, 

plaintiffs contended that the challenged rules usurped the role Congress had delegated to the 

States by creating a uniform system of permit-data requirements, which left no flexibility for 

consideration of State-specified conditions." [51 FR 19498 (MAY 29, 1986).]

The District Court "rejected industry's challenge to the Secretary's general authority to 

promulgate uniform permit processing and bonding requirements". The court stated that "specific 

listing of these requirements was not necessary" because "the structure of the Act" gave the 

Secretary authority to require additional information. However, 30 CFR 779.20 and 780.16, 

which provided permit requirements for fish and wildlife resources information (for surface 

mining operations), were remanded "on the basis that there was no statutory authority for this 

specific case. See IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, 

No 79-1144, slip op. at 39 (D D C February 26, 1980)." OSM suspended 30 CFR 779.20 and 

780.16, and the corresponding rules for underground mining, 783.20 and 784.16, on AUGUST 4, 

1980 (45 FR 51547). [51 FR 19498 (MAY 29, 1986).]

The coal industry appealed the decision. The Appeals Court "found that the District Court was 

correct in holding that the Act's explicit listing of information requirements is not exhaustive and 

does not preclude the Secretary from requiring additional information needed to insure 

compliance with the Act." See IN RE: PERMANENT SURFACE MINING LITIGATION, 653 

F2d 514 (D C Cir 1981), cert. denied, 454 US 822 (1981).

The Appeals Court did not specifically address the fish and wildlife rules. [50 FR 7274 

(FEBRUARY 21, 1985).]

During the 1983 regulatory reforms, OSM "revised the performance standards found in Sec. 

816.97 for the protection of fish, wildlife and related environmental values. See 48 FR 30312 

(JUNE 30, 1983)." The fish and wildlife information requirements were not repromulgated: the 

suspension of the 1979 rules remained in effect. [50 FR 7274 (FEBRUARY 21, 1985).]

Part of the environmental plaintiffs's challenge to the 1983 regulations included a claim that the 

rules failed "to require operators to supply information on fish and wildlife resources in permit 

applications." In his brief, the Secretary agreed with the plaintiffs and asked the District Court to 

allow OSM to propose new regulations. The District Court held that the 1981 Circuit Court 

decision had the effect of reinstating the fish and wildlife information rules and ordered that 30 

CFR 779.20 and 780.16 be reinstated pending new rulemaking. See IN RE: PERMANENT 

SURFACE MINING REGULATION LITIGATION II, No. 79-1144, (D D C October 1, 1984). 

OSM reinstated 30 CFR 779.20, 780.16, 783.20 and 784.16 on FEBRUARY 21, 1985 (50 FR 

7274).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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The October 1, 1984 decision also remanded portions of 30 CFR 816.97 and 817.97 which OSM 

had revised in June, 1983. [51 FR 19498 (MAY 29, 1986)]

Revisions to 30 CFR 779.20, 780.16, 783.20, 784.16, 816.97 and 817.97 were proposed on MAY 

29, 1986 (51 FR 19498). 

The final rules were published in the Federal Register on December 11, 1987 (52 FR 47352). 

Fish and wildlife information requirements in 30 CFR 780.16(a) and (b) are currently under 

litigation as a result of a challenge by the National Wildlife Federation.

ATTACHMENTS

A. 50 FR 7274 (FEBRUARY 21, 1985). Notice of suspension. 

B. 51 FR 19498 (MAY 29, 1986). Proposed Rule. 

C. 52 FR 47352 (DECEMBER 11, 1987). Final Rule.