OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Terri H. Petruska Page 1 of 5

COALEX STATE INQUIRY REPORT - 35

April 4, 1985

Brian Zima, Assistant Attorney General 

Division of Reclamation 

Fountain Square, Bldg. B-3 

Columbus, Ohio 43224

TOPIC: WATER RIGHTS AND REPLACEMENT

INQUIRY: SMCRA Sec. 717 requires that an operator replace the water supply of an owner that 

has been contaminated, diminished, or interrupted by a surface mining operation. Is there any 

legislative history or case law addressing the question of what would be considered an 

acceptable level of water quality for the replacement water supply?

SEARCH RESULTS:

The Surface Mining Control and Reclamation Act of 1977 (SMCRA) requires, among other 

things, that the operator of a surface coal mine replace the water supply of an owner of real 

property where the supply is contaminated, diminished, or interrupted due to surface coal mine 

operations. (SMCRA, Sec. 717(b); 30 USC Sec. 1307(b)) To meet the requirements of this 

provision, the operator is required to include in his permit application information on measures 

to be taken to assure the protection of the rights of the present users of water. (SMCRA Sec. 

508(a)(13); 30 USC Sec.1258(a)(13))

Legislative History

Language similar to that included in Sec. 717(b) of SMCRA was initially offered during the 93rd 

Congress and similar= language was either included or proposed to be included in two major 

bills, H.R. 11500 and H.R. 425. However, the replacement requirement did not appear to have 

enough support to be included in the bill (H.R. 25) that was reported out of Committee a year 

later, in the 94th Congress. (See 120 Cong. Rec. 23639-40 (JULY 16, 1974); 120 Cong. Rec. 

25851 (JULY 30, 1974).)

In the 94th Congress, H.R. 25, as reported out of Committee, did not include language requiring 

the replacement of water rights for users whose supply was adversely affected by mining. (See 

H. Rep. No. 94-45, 94th Cong., 1st Sess. (MARCH 6, 1975).) During the floor debate, however, 

Congressman Melcher of Montana, and Congressman Evans of Colorado, introduced 

amendments paralleling those offered in the 93rd Congress, relating specifically to replacement 

of water rights.

First, Congressman Melcher proposed to amend Sec. 515(b)(10) by adding a new subsection 

as follows:

"(E) Replacing the water supply of an owner of interest in real property who obtains all or 

part of his supply of water for domestic, agricultural, industrial, or other legitimate use from 

an underground or surface source where such supply has been affected by contamination, 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Terri H. Petruska Page 2 of 5

diminution, or interruption proximately resulting from mining." (121 Cong. Rec. 6830 

(MARCH 17, 1975))

In explaining his proposed amendment to Sec. 515, Congressman Melcher stated:

"[S]ection (E) deals with replacing the water supply of an owner in interest of real property; 

in other words, the owners and the ranchers around the area. If they are deprived of their 

water, the mining company would have to replace it. It is accepted by the Montana Power 

Co. who is in the business of mining at Colstrip; they know it is needed because they are 

having this very problem with the ranchers and the farmers surrounding the area where they 

are engaged in mining. They have cooperated with the Montana Legislature, which is now in 

session and which has adopted this type of language for a new requirement in the State of 

Montana.

"It is time we put it into the national bill also, and I urge the Committee to look favorably on 

this amendment and pass it." (Id.)

Second, Congressman Evans proposed to add a new Sec. 717, providing that:

"(a) In those instances in which it is determined that a proposed surface= coal mining 

operation is likely to adversely affect the hydrologic balance of water on or offsite, or 

diminish the supply or quality of such water, the application for a permit shall include either -

(1) the written consent of all owners of water rights reasonably anticipated to be affected; or 

(2) evidence of the capability and willingness to provide substitute water supply at least 

equal in quality, quantity, and duration to the affected water rights of such owners.

"(b) (1) An owner of water rights adversely affected may file a complaint detailing the loss in 

quantity or quality of his water with the regulatory authority; 

(2) Upon receipt of such complaint the regulatory authority shall -

 (A) investigate such complaint using all available information including the monitoring data 

gathered pursuant to Section 517;

 (B) within 90 days issue a specific written finding as to the cause of the water loss in 

quantity or quality, if any;

 (C) order the mining operator to replace the water within a reasonable time in like quality, 

quantity, and duration if the loss is caused by the surface coal mining operations, and 

require the mining operator to compensate the owner of the water right for any damages he 

has sustained by reason of said loss; and 

 (D) order the suspension of the operator's permit if the operator fails to comply with any 

order issued pursuant to subparagraph (C )." (121 Cong. Rec. H6740 (MARCH 14, 1975); 

121 Cong. Rec. 7065 (MARCH 18, 1975))

The amendments were accepted on the floor of the House during the 94th Congress and 

included in H.R. 25 as it initially passed the House. In the Senate, an amendment was added to 

Sec. 515(b)(10) of S. 7, providing that mining operations are to minimize impacts to the 

hydrologic balance by:

"(E) replacing the water supply of an owner of any interest in real property who obtains all or 

part of his supply of water for domestic, agricultural, industrial, or other legitimate use from 

an underground source other than a subterranean stream channel where such supply has 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Terri H. Petruska Page 3 of 5

been affected by contamination, diminution, or interruption proximately resulting from 

mining." (S. 7, S. Rep. No. 94-28, 94th Cong., 1st Sess. (1975); see 121 Cong. Rec. 5653 

(MARCH 7, 1975) and 121 Cong. Rec. 6212 (MARCH 12, 1975))

Language similar to the Evans amendment to H.R. 25, which specifically required that the 

replacement be of like quality, quantity, and duration as the original supply, was not included in 

the Senate version.

At Conference of H.R. 25 during the 94th Congress, "the Evans language was . . . completely 

dropped." (121 Cong. Rec. 12996 (MAY 5, 1975)) In discussing the deletion of Evans 

amendment, Congressman Udall noted that:

"The House bill contains certain procedural mechanisms for the protection of water rights. 

The conferees rejected this language as it could possibly interfere or modify well developed 

State law on the subject of water rights and was viewed as unnecessary." (121 Cong. Rec. 

13370 (MAY 7, 1975))

The Conference also noted other differences between the House and Senate versions as 

follows:

"Both the House and Senate bills were amended to include a new provision that required the 

replacement of the water supply of an owner whose supply had been affected or interrupted 

by mining. The Senate amendment, however, precluded such replacement for water from a 

'subterranean stream channel' and did not include surface sources. The House bill provided 

the protection for both all underground and surface sources. The conferees adopted the 

House provision." (121 Cong. Rec. 13370 (MAY 7, 1975))

As revised after the Conference in the 94th Congress, H.R. 25 passed both Houses, but was 

vetoed by President Ford in May, 1975.

In the 95th Congress, S. 7 continued to include the language in Sec. 515(b)(10)(E) providing for 

the replacement of water supplies which was adopted during the 94th Congress. (S. Rep. No. 

95-128, 95th Cong., 1st Sess. (1977)) The House version, H.R. 2, moved the provision for water 

replacement from Sec. 515(b)(10) to Sec. 717(b). There was no discussion in either Houses on 

specific requirements for the quantity, quality, or duration of the replacement source, or on what 

standard would be used to judge mining effects. (H. Rep. No. 95-218, 95th Cong., 1st Sess. 

(1977))

The Conference Committee in the 95th Congress, which provided the final language of P.L. 95-

87, accepted the House version noting simply that: "There were no significant differences 

between the House bill and the Senate amendment." (Conf. Rep., S. Rep. No. 95-337, 95th 

Cong., 1st Sess., at 115 (1977))

The OSM permanent program regulations promulgated in March, 1979 included the 

requirements of Secs. 508(a)(13) and 717(b) nearly verbatim, in 30 CFR Secs. 779.17 and

816.54, for surface mines, and 783.17 and 817.54, for underground mines. Litigation on these 

provisions in IN RE: PERMANENT SURFACE MINING REGULATIONS LITIGATION, (see 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Terri H. Petruska Page 4 of 5

discussion of cases, below) resulted in the removal of the provisions applicable to underground 

mines from the federal regulations.

In June 1982, as part of OSM's regulation revisions, a proposal was made to revise Sec. 816.41 

to include the requirements for water replacement which would be suitable in quality and 

quantity to meet the needs of the damaged party. The rule would have further required that the 

baseline information developed during the permitting process be used to determine the impact 

of mining on the water resource. (47 FR 27725 (JUNE 25, 1982))

In the final rule, the language requiring that the replacement supply be "suitable" was deleted. 

OSM explained that:

"This sentence is unnecessary since it is implicit in the requirements of Section 717(b) of the 

Act, which are repeated in the first sentence of paragraph (h), that the alternative water 

supply must be capable of restoring the water user's supply which was lost due to surface 

mining impacts. The requirements of paragraph (h) to replace water supplies are thus tied to 

preexisting uses and not to postmining land use." (48 FR 43981 (SEPTEMBER 26, 1983))

The language providing that the permitting baseline data be used to determine the extent of the 

impact of the mining, was, however, retained in the final rule. (Id.)

Case Decisions

Two cases were identified in the search which related directly to the application of the 

requirements of Sec. 717(b) of SMCRA.

IN RE: PERMANENT SURFACE MINING REGULATIONS LITIGATION, Civ. No. 79-1144, slip 

op. at 36-37 (DDC May 16, 1980); and IN RE: PERMANENT SURFACE MINING 

REGULATIONS LITIGATION, slip op. at 11-13 (DDC October 1, 1984).

In IN RE: PERMANENT SURFACE MINING REGULATIONS LITIGATION, the National Coal 

Association objected to the 1979 OSM regulations on the grounds that the requirements to 

replace water supplies by underground operators lacked statutory authority. The Flannery court 

found that Sec. 717(b) was meant to apply only to surface coal mines and not to underground 

coal mines.

WIGGINS v BRAZIL COAL AND CLAY CORP., 440 N.E.2d 495 (Ind. Ct. App. 1982).

In WIGGINS, the Brazil Coal Co. opened a strip mining operation on property adjacent to that 

owned by Wiggins. The Wiggins property contained a lake that was formed prior to 1960 as a 

result of past strip mining. In the course of the new mining operation, the Wiggins' lake was 

dewatered. The trial court found that water in Brazil's pit was coming from Wiggins' lake by 

abandoned deep mine shafts, but that Brazil was entitled to pump the water since it was both 

reasonable and necessary as part of its mining operation.

The court of appeals reversed the trial court and ruled that the Surface Mining Control and 

Reclamation Act of 1977, and other developments, necessitated a change in the common law, 

and that Brazil must be held responsible for the loss of water in the lake.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Terri H. Petruska Page 5 of 5

ATTACHMENTS:

A. Excerpts from Congressional Records (1974-1975).

B. Excerpt from S. Rep. 95-337, 95th Cong., 1st Sess. 115 (1977).

C. Excerpt from 47 FR 27724, Sec. 816.41(I) (1982).

D. Excerpt from 48 FR 43956, 43980, Sec. 816.41(h) (1983).

E. Excerpt from IN RE: PERMANENT SURFACE MINING REGULATIONS LITIGATION 

No. 79-1144 (DDC May 16, 1980).

F. IN RE: PERMANENT SURFACE MINING REGULATIONS LITIGATION, No. 79-1144 

(DDC October 1, 1984).

G. WIGGINS v BRAZIL COAL AND CLAY CORP., 440 N.E. 2d 495 (Ind. Ct. App. 1982). ,/

H. WIGGINS v BRAZIL COAL AND CLAY CORP., 452 N.E. 2d 958 (Ind. 1982).