Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 3673 

comments on this matter are advised not to 

disclose sensitive personal data such as 

social security numbers. 

[Insert An Objective Description of the 

Transaction and the Steps Taken to Correct 

the Transaction] 

Please feel free to contact me if you have 

any questions at [Insert Telephone Number of 

a Person Employed by the Applicant Who Is 

Knowledgeable About this Matter]. 

Sincerely, 

[Insert Name and Title of Person Employed 

by the Applicant] 

[FR Doc. 2025–00328 Filed 1–14–25; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 926 

[SATS No. MT–042–FOR; Docket No. OSM– 

2023–0007; S1D1S SS08011000 SX064A000 

231S180110; S2D2S SS08011000 

SX064A000 23XS501520] 

Montana Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approving, in part. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSMRE), are approving, in part, and 

denying, in part, an amendment to the 

Montana regulatory program under the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA). 

Montana submitted this proposed 

amendment to OSMRE on its own 

initiative in response to a State law 

passed by the Montana Legislature 

(House Bill (HB) 576). The proposed 

amendment generally concerns 

proposed changes to the definition of 

material damage and changes to permit 

requirements related to hydrologic 

information. 

DATES: The effective date is February 14, 

2025. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Fleischman, Field Office 

Director, Office of Surface Mining 

Reclamation and Enforcement, 100 East 

B Street, Casper, Wyoming 82602, 

Telephone: (307) 261–6550, Email: 

jfleischman@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Montana Program 

II. Submission of the Amendment 

III. OSMRE’s Findings 

A. Montana Code Annotated (MCA) 82–4– 

203(32)(a) 

B. MCA 82–4–203(32)(b) 

C. MCA 82–4–203(32)(c) 

D. MCA 82–4–222(1)(m) 

E. Sections 4, 5, 6, and 7 of House Bill 576 

IV. Summary and Disposition of Comments 

V. OSMRE’s Decision 

VI. Procedural Determinations 

I. Background on the Montana Program 

Section 503(a) of SMCRA permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its program 

includes, among other things, State laws 

and regulations that govern surface coal 

mining and reclamation operations in 

accordance with SMCRA and consistent 

with the Federal implementing 

regulations. See 30 U.S.C. 1253(a)(1) 

and (7); 30 CFR 730.5 and 732.15(a). On 

the basis of these criteria, the Secretary 

of the Interior conditionally approved 

the Montana program on April 1, 1980. 

You can find background information 

on the Montana program, including the 

Secretary’s findings, the disposition of 

comments, and conditions of approval 

of the Montana program in the April 1, 

1980, Federal Register (45 FR 21560). 

You can also find later actions 

concerning the Montana program and 

program amendments at 30 CFR 926.15. 

II. Submission of the Amendment 

By letter dated June 1, 2023 

(Administrative Record No. MT–042– 

01), Montana sent us an amendment to 

its program under SMCRA (30 U.S.C. 

1201 et seq.). We found Montana’s 

proposed amendment to be 

administratively complete on June 5, 

2023. Montana submitted the proposed 

amendment to us, on its own volition, 

after the Montana legislature passed HB 

576 during the 2023 legislative session. 

HB 576 amends the Montana Strip and 

Underground Mine Reclamation Act 

(MSUMRA) as well as sections 82–4– 

203 and 82–4–222 of the Montana Code 

Annotated (MCA). Among other things, 

HB 576 also directed the Montana 

Department of Environmental Quality 

(MDEQ) to amend the Administrative 

Rules of Montana (ARM) to ‘‘remove the 

two subsections defining ‘material 

damage’ and the subsection defining 

‘material damage to the quantity or 

quality of water’.’’ 

Specifically, Montana proposes 

several changes to MCA sec. 82–4– 

203(32), which defines and describes 

‘‘material damage’’ for both 

underground and surface coal mining 

operations (referred to herein as ‘‘coal 

mining and reclamation operations’’). 

As currently approved by OSMRE, this 

section dictates how ‘‘material damage’’ 

applies to the protection of the 

hydrologic balance. Montana now 

proposes to create three subsections 

under section 82–4–203(32) to define 

how ‘‘material damage’’ is defined with 

respect to: (a) protection of the 

hydrologic balance; (b) an alluvial 

valley floor; and (c) subsidence caused 

by an underground coal mining 

operation. 

Proposed section 82–4–203(32)(a) 

would create two requirements for an 

action or inaction to be considered 

‘‘material damage’’ to the hydrologic 

balance. The first requirement is that the 

coal mining operation would cause 

significant, lasting, or permanent 

adverse changes to water quality or 

quantity that affect the beneficial uses 

of, or rights to, the water outside the 

permit area. This requirement 

incorporates the current language of 

section 82–4–203(32) but modifies it to 

replace the phrase ‘‘degradation or 

reduction’’ with ‘‘significant long term 

or permanent adverse change.’’ The 

second requirement for an action or 

inaction to be considered ‘‘material 

damage’’ to the hydrologic balance is 

that a coal mining or reclamation 

operation would cause a lasting or 

permanent exceedance of a water 

quality standard (WQS) outside a permit 

area. There is an exception to this 

second requirement for water bodies for 

which the WQSs are stricter than the 

baseline conditions as determined by 

MDEQ’s assessment of the cumulative 

hydrologic impact findings conducted 

pursuant to section 82–4–222. For those 

water bodies, this second requirement is 

met if the coal mining and reclamation 

operation causes an adverse effect to 

land use, beneficial uses of water, or 

water rights. 

Proposed section 82–4–203(32)(b) 

would apply when determining if an 

alluvial valley floor is ‘‘materially 

damaged.’’ Montana proposes to modify 

the definition of ‘‘material damage’’ by 

adding language that accounts for the 

degradation or a reduction of water 

quality or quantity supplied to an 

alluvial valley floor by a coal mining 

and reclamation operation, but only if 

those actions or inactions significantly 

decrease the alluvial valley floor’s 

ability to support agricultural activities. 

Proposed section 82–4–203(32)(c) 

would apply when determining if 

subsidence caused by underground coal 

mining operation is ‘‘material damage.’’ 

Subsidence caused by underground coal 

mines would constitute ‘‘material 

damage’’ when there are (1) significant 

impairments to surface lands, features, 

and structures; (2) physical changes that 

have significant adverse effects on a 

lands current and reasonably 

foreseeable uses, production, or income; 

or (3) when there is any significant 

change to a structure’s pre-subsidence 

condition, appearance, or utility. 


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Next, Montana proposes to amend its 

coal mine operation permit 

requirements related to hydrologic 

information by removing two sentences 

from section 82–4–222(1)(m). The first 

sentence Montana proposes to remove 

states that the applicant’s determination 

of the probable hydrologic 

consequences of a coal mining and 

reclamation operation is not required 

until the necessary hydrologic 

information is made available from an 

appropriate Federal or State agency. The 

second sentence that Montana proposes 

to remove prohibits the MDEQ from 

approving a coal mining permit 

application until the necessary 

hydrologic information is incorporated 

into the application. 

Lastly, HB 576 adds four 

contingencies to the proposed 

amendments of sections 82–4–203(32) 

and 82–4–222(1)(m) that are not 

codified into the MCA but apply to the 

sections amended by the legislation. 

Section 4 of HB 576 states that if any or 

all parts of HB 576 is found invalid, any 

parts found valid will remain in effect. 

Section 5 of HB 576 states that if the 

Secretary of the Interior disapproves any 

provision of the HB 576, then that 

portion is void. Section 6 of HB 576 

states that HB 576 is effective upon 

passage and approval. Last, Section 7 of 

HB 576 states that HB 576 applies 

retroactively to actions for judicial 

review or other actions challenging 

permits, amendments, license, 

arbitration, action, certificate, or 

inspection that are pending on or after 

the effective date. 

We announced receipt of the 

proposed amendment in the August 7, 

2023, Federal Register (88 FR 52084). In 

the same document, we opened the 

public comment period and provided an 

opportunity for a public hearing or 

meeting on the adequacy of the 

amendment. After a request from several 

public interest groups, we announced a 

60-day extension of the comment period 

until November 6, 2024, in the 

September 20, 2023, Federal Register 

(88 FR 64853). We also held a Public 

Hearing on November 1, 2023, in 

Billings, MT, where we received 

testimony from 23 individuals. 

(Administrative Record No. MT–042– 

23). We also received 232 written 

comments on the proposed rule. On 

March 28, 2024, OSMRE sent a letter to 

MDEQ detailing concerns that OSMRE 

had with the proposed amendment 

(Administrative Record No. MT–042– 

34). The letter offered two options for 

MDEQ: suspend the amendment to 

allow MDEQ to make necessary changes 

or proceed to the Final Rule stage with 

no changes. MDEQ responded on April 

26, 2024, that, because the proposed 

amendments were the result of 

legislative action, MDEQ is unable to 

submit further modifications to address 

OSMRE’s concerns. While OSMRE’s 

letter only solicited a response from 

MDEQ, several individuals and 

organizations sent OSMRE responses to 

the letter as well. Due to the increased 

interest generated by OSMRE’s March 

28, 2024, letter to MDEQ, and, in the 

interest of fairness for public 

participation, OSMRE announced the 

re-opening of the public comment 

period for 15 days, ending August 14, 

2024. (Administrative Record No. MT– 

042–39). 

III. OSMRE’s Findings 

OSMRE reviewed Montana’s 

submittal according to the requirements 

of SMCRA and the Federal regulations 

at 30 CFR 730.5, 732.15, and 732.17. As 

described below, we are approving 

Montana’s submittal in part and 

disapproving it in part. The severability 

clause in section 4 of HB 576 indicates 

that it was the legislature’s intent for 

any parts of the law that are not 

disapproved by OSMRE to remain in 

effect. The legislature did not define 

‘‘part,’’ but in analyzing this proposed 

amendment, OSMRE analyzed the 

smallest reasonable elements of the 

proposed amendment, usually a section, 

and treated those as individual parts for 

purposes of severability. 

For each part, OSMRE evaluated the 

cumulative effect of the changes to 

determine whether each part is in 

accordance with SMCRA and consistent 

with the Federal implementing 

regulations. The individual parts 

evaluated by OSMRE were MCA 

sections 82–4–203(32)(a), (b), and (c), 

and MCA 82–4–222(1)(m). We are 

approving only those parts of the 

amendment determined to be in 

accordance with SMCRA and consistent 

with the requirements of the Federal 

regulations, and we are disapproving 

those sections of the amendment that 

are not in accordance with SMCRA or 

are not consistent with the requirements 

of the Federal regulations. 

Specifically, we are: (1) approving 

Montana’s decision to move the 

currently approved definition of 

material damage ‘‘with respect to 

protection of the hydrologic balance’’ to 

subsection (a) of 84–4–203(32) but 

disapproving any proposed changes to 

that definition; (2) approving the 

addition of the proposed definition of 

material damage ‘‘with respect to an 

alluvial valley floor’’ at section 84–4– 

203(32)(b); and (3) disapproving the 

proposed definition of material damage 

‘‘with respect to subsidence caused by 

underground coal mining operation’’ at 

proposed section 84–4–203(23)(c). We 

are also disapproving the proposed 

changes to section 82–4–222(1)(m). 

A. Montana Code Annotated (MCA) 82– 

4–203(32)(a) 

For section 82–4–203(32)(a), Montana 

proposes several changes to its 

definition of ‘‘material damage’’ as it 

relates to impacts to the hydrologic 

balance from surface and underground 

coal mining operations. Existing section 

82–4–203(32) of the MCA defines 

‘‘material damage’’ with respect to 

protection of the hydrologic balance as 

the ‘‘degradation or reduction by coal 

mining and reclamation operations of 

the quality or quantity of water outside 

of the permit area in a manner or to an 

extent that land uses or beneficial uses 

of water are adversely affected, water 

quality standards are violated, or water 

rights are impacted. Violation of a water 

quality standard, whether or not an 

existing water use is affected, is material 

damage.’’ This definition was 

previously determined by OSMRE to be 

in accordance with SMCRA and 

consistent with the Federal 

implementing regulations when OSMRE 

conditionally approved Montana’s 

Permanent coal program. 45 FR 21560. 

Montana’s proposed revision would 

define ‘‘material damage’’ with respect 

to protection of the hydrologic balance 

as: ‘‘(i) significant long-term or 

permanent adverse change by coal 

mining and reclamation operations to 

the quality or quantity of water outside 

of the permit area in a manner or to an 

extent that land uses or beneficial uses 

of water are adversely affected or water 

rights are impacts; and (ii) long-term or 

permanent exceedances of a water 

quality standard outside a permit area if 

caused by coal mining or reclamation 

operations, except that in water bodies 

for which the water quality standard is 

more stringent than baseline conditions 

as determined by the department’s 

assessment of the cumulative hydrologic 

impact findings conducted pursuant to 

82–4–222.’’ In addition, the definition 

would specify that ‘‘[f]or those water 

bodies, a significant, long-term adverse 

change to the baseline condition of 

water quality outside of a permit area is 

material damage if coal mining or 

reclamation operations cause adverse 

effects to and use, beneficial uses of 

water, or water rights.’’ 

Under this proposed revision, for an 

event or condition to be considered 

‘‘material damage to the hydrologic 

balance’’ there must be significant and 

adverse change to the quality and 

quantity of water outside the permit 

area caused by a coal mining and 


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reclamation operation; the change must 

be long-term or permanent; and there 

must be a long-term or permanent 

exceedance of a WQS outside the permit 

area. The proposed revision would 

provide an exception for long-term or 

permanent exceedance of a WQS for 

water bodies where WQSs are more 

stringent than baseline conditions. 

Those areas instead must show longterm adverse change to the baseline 

condition of water where coal mining 

and reclamation operations cause 

adverse effects to land use, beneficial 

uses of water, or water rights. 

The phrase ‘‘material damage to the 

hydrologic balance outside the permit 

area’’ appears in SMCRA and within the 

Federal regulations (30 CFR 816.41) and 

these references, and other elements of 

SMCRA and the Federal regulations, 

provide parameters for interpreting this 

phase. As a threshold matter, SMCRA’s 

performance standards require that all 

surface coal mining and reclamation 

operations ‘‘minimize the disturbances 

to the prevailing hydrologic balance at 

the mine-site and in associated offsite 

areas and to the quality and quantity of 

water in surface and ground water 

systems both during and after surface 

coal mining operations and during 

reclamation.’’ 30 U.S.C. 1265(b)(10). 

This standard is accomplished by 

avoiding acid forming materials, 

preventing ‘‘to the extent possible using 

the best technology currently available’’ 

contributions of material to streams but 

under no circumstances allowing 

violations of any State or Federal water 

quality laws, and other practices 

designed to protect the existing 

hydrologic systems. Id. Similarly, 

SMCRA requires that underground coal 

mining operations ‘‘minimize the 

disturbances to the prevailing 

hydrologic balance at the minesite and 

in associated offsite areas and to the 

quantity of water in surface ground 

water systems both during and after 

surface coal mining operations and 

during reclamation.’’ 30 U.S.C. 

1266(b)(9). 

Section 510(b)(3) of SMCRA also 

states that no application for surface 

coal mining operations, defined at 30 

U.S.C. 1291(28) as including activities 

related to surface coal mining and 

reclamation operations and surface 

effects from underground coal mining 

and reclamation operations, can be 

approved unless the application 

affirmatively demonstrates, and the 

regulatory authority finds in writing 

based on the application and available 

information, that ‘‘the assessment of the 

probable cumulative impact of all 

anticipated mining in the area on the 

hydrologic balance specified in Section 

507(b) has been made by the regulatory 

authority and the proposed operation 

thereof has been designed to prevent 

material damage to the hydrologic 

balance outside the permit area.’’ 30 

U.S.C. 1260(b)(3). Section 507(b)(11) 

requires that an applicant submit ‘‘a 

determination of the probable 

hydrologic consequences of the mining 

and reclamation operations, both on and 

off the mine site, with respect to the 

hydrologic regime, quantity and quality 

of water in surface and ground water 

systems including the dissolved and 

suspended solids under seasonal flow 

conditions and the collection of 

sufficient data for the mine site and 

surrounding areas so that an assessment 

can be made by the regulatory authority 

of the probable cumulative impacts of 

all anticipated mining in the area upon 

the hydrology of the area and 

particularly upon water availability.’’ 30 

U.S.C. 1257(b)(11). 

In addition to the statutory standards, 

the Federal regulations add additional 

contours to the meaning of ‘‘material 

damage to the hydrologic balance 

outside the permit area.’’ First, the 

regulations at 30 CFR 773.15(e) require 

the regulatory authority to perform an 

assessment to determine if ‘‘the 

proposed operation has been designed 

to prevent material damage to the 

hydrologic balance outside the permit 

area.’’ Second, the regulations at 30 CFR 

780.21(g) and 784.14(f) require a finding 

that the Cumulative Hydrologic Impact 

Assessment (CHIA) is ‘‘sufficient to 

determine, for the purposes of permit 

approval, whether the proposed 

operation has been designed to prevent 

material damage to the hydrologic 

balance outside the permit area.’’ Third, 

the regulations at 30 CFR 780.21(h) and 

784.14(g) require a permit applicant to 

provide a Hydrologic Reclamation Plan. 

These sections state, in relevant part, 

that the plan must ‘‘contain the steps to 

be taken during mining and reclamation 

through bond release to minimize 

disturbance to the hydrologic balance 

within the permit and adjacent areas; to 

prevent material damage outside the 

permit area; [and] to meet applicable 

Federal and State water quality laws 

and regulations.’’ Id. The fact that the 

Hydrologic Reclamation Plan must 

outline how an operation will (1) 

minimize disturbance to the hydrologic 

balance within the permit area and the 

adjacent areas, (2) prevent material 

damage outside the permit area, and (3) 

meet all applicable Federal and State 

water quality laws indicates that each 

element provides a distinct protective 

benefit and that merely satisfying one 

element is not sufficient. 

Fourth, the regulations at 30 CFR 

816.41(a) and 817.41(a) require that all 

surface and underground mining and 

reclamation activities must be 

conducted ‘‘to minimize disturbance to 

the hydrologic balance within the 

permit and adjacent areas [and] . . . 

prevent material damage to the 

hydrologic balance outside the permit 

area,’’ and that the ‘‘regulatory authority 

may require additional preventative, 

remedial or monitoring measures to 

assure that material damage to the 

hydrologic balance outside the permit 

area is prevented.’’ Last, the regulations 

at 30 CFR 816.41(c) and (e), as well as 

section 817.41(c) and (e), authorize the 

regulatory authority to modify the 

monitoring requirements, including 

parameters and frequency, if the 

monitoring data demonstrate that the 

operation has ‘‘minimized disturbance 

to the hydrologic balance in the permit 

and adjacent area and prevented 

material damage to the hydrologic 

balance outside the permit area.’’ 

While neither SMCRA nor the current 

Federal regulations define ‘‘material 

damage to the hydrologic balance 

outside a permit area,’’ for the Federal 

and Indian lands programs, OSMRE has 

defined the phrase, as recently as 2024 

in various CHIAs as meaning ‘‘any 

quantifiable adverse impact from 

surface coal mining and reclamation 

operations on the quality or quantity of 

surface water or groundwater that 

would preclude any existing or 

reasonably foreseeable use of surface 

water or groundwater outside the permit 

area.’’ See Cumulative Hydrologic 

Impact Assessment for the Pacific Coast 

Coal Company John Henry No. 1 Mine, 

p. 2 (Jan. 2014); Cumulative Hydrologic 

Impact Assessment of the Navajo Mine 

and Pinabete Permit Areas, p. 14 (Mar. 

2015); Cumulative Hydrologic Impact 

Assessment of the Peabody Western 

Coal Company Kayenta Mine Complex, 

App. A (Sept. 2016); Review and 

Analysis of Navajo Aquifer Material 

Damage Criteria for Peabody Western 

Coal Company’s Kayenta Mine 

Complex, p. 14 (Aug. 2024). These 

documents recognize that surface coal 

mining operations will cause hydrologic 

impacts but indicate OSMRE’s 

interpretation that disturbances to the 

hydrologic balance within the permit 

area should be minimized and material 

damage outside the permit area should 

be prevented. Id. The CHIAs also direct 

that material damage criteria for both 

groundwater and surface water quality 

should be related to existing standards 

that generally are based on the 

maintenance and protection of specified 

water uses such as public and domestic 


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3676 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 

water supply, agriculture, industry, 

aquatic life, recreation, and other 

parameters of local significance to water 

use. OSMRE also provided a definition 

of material damage to the hydrologic 

balance in a 2016 rule (81 FR 93066); 

however, that rule was disapproved 

under the Congressional Review Act in 

2017 and is no longer in effect. 

SMCRA and the Federal program, 

thus, require that: (1) the regulatory 

authority must make a written finding 

that the operation is designed to prevent 

material damage to the hydrologic 

balance outside the permit area before 

the permit can be issued; (2) a permit 

application must include a plan that 

shows the operation has been designed 

to prevent such damage; (3) the 

operation must be conducted in a 

manner to prevent such damage; (4) the 

water monitoring requirements can be 

modified if warranted to determine 

whether or not such damage is 

occurring; and (5) applicable Federal 

and State water quality laws and 

regulations must be followed. 

With this background in mind, we 

have evaluated the proposed 

amendment to the Montana program in 

relation to Federal statutory and 

regulatory requirements for preventing 

‘‘material damage to the hydrologic 

balance outside the permit area’’ and 

determined that Montana’s proposed 

changes to section 82–4–203(32)(a) are 

not in accordance with SMCRA and not 

consistent with the Federal regulations. 

First, Montana’s proposed 

requirement that an impact must be a 

‘‘significant long-term or permanent 

adverse change . . . to the quality of 

water outside of the permit area’’ to be 

considered material damage is not in 

accordance with the requirements of 

SMCRA and not consistent with the 

Federal regulations. The phrase ‘‘longterm or permanent’’ is not defined in the 

Montana code or regulations. Without a 

definition or guidance on what 

constitutes a ‘‘long-term or permanent’’ 

adverse change, it would be very 

difficult to establish a metric for what 

constitutes a long-term impact, and such 

a metric would likely exclude 

significant short-term impacts to the 

quality or quantity of water outside the 

permit area from ever being considered 

material damage to the hydrologic 

balance. As a result, this proposed 

change to the definition would appear 

to explicitly authorize minor, short-term 

adverse changes caused by coal mining 

and reclamation operations to the 

quality or quantity of water outside the 

permit area, which is contrary to 

SMCRA’s requirement that all surface 

coal mining and reclamation operations 

must de designed to ‘‘minimize the 

disturbance to the prevailing hydrologic 

balance . . . both during and after’’ 

mining, without limit to duration. 30 

U.S.C. 1265(b)(10). Thus, this proposed 

change renders the definition of 

material damage to the hydrologic 

balance less stringent than SMCRA and 

less effective than the Federal 

regulations. 

Second, the requirement that material 

damage to the hydrologic balance can 

only be found where there are also 

‘‘long-term or permanent exceedances of 

a water quality standard outside a 

permit area’’ caused by coal mining or 

reclamation operation is not in 

accordance with SMCRA or consistent 

with the Federal regulations. A violation 

of a State or Federal WQS as a result of 

a surface coal mining and reclamation 

operation is not allowed under SMCRA 

and would constitute material damage 

to the hydrologic balance. However, 

material damage to the hydrologic 

balance could also occur without a longterm or permanent exceedance of a 

WQS outside the permit area. Requiring 

that an impact be a ‘‘significant longterm or permanent adverse change’’ and 

also a long-term or permanent 

exceedance of a WQS would 

significantly weaken the standard for 

material damage to the hydrologic 

balance. Therefore, this change would 

make Montana’s program neither in 

accordance with SMCRA nor consistent 

with the Federal regulations. 

A regulatory authority will set and 

monitor WQSs to ensure that surface 

coal mining operations are preventing 

‘‘material damage to the hydrologic 

balance.’’ These standards are 

underpinned by a combination of State 

and Federal water quality laws and 

regulations. General effluent limitations 

for coal mining are promulgated by the 

U.S. Environmental Protection Agency 

(EPA) as set forth in 40 CFR part 434, 

and the individualized standards for an 

operation are determined by the 

regulatory authority based on the 

information provided in a permit 

application. As required in 30 CFR 

780.21(i) and (j), a surface coal mining 

operation permit application must 

include both a groundwater monitoring 

plan and surface water monitoring plan. 

These plans identify the water quality 

and quantity parameters to be 

monitored, how often they are to be 

sampled, and where they are to be 

sampled. The sampling data are then 

used to assess the suitability of the 

water for current and approved 

postmining land uses and to meet the 

objectives for protection of the 

hydrologic balance, as described in 30 

CFR 780.21(h), which includes 

preventing ‘‘material damage to the 

hydrologic balance outside the permit 

area.’’ 

In a 1983 rulemaking, commenters 

urged OSMRE to define ‘‘material 

damage to the hydrologic balance’’ or 

establish guidelines to evaluate whether 

material damage would occur from a 

proposed operation. In response, 

OSMRE stated that it agreed that a 

regulatory authority should establish 

guidelines, but, ‘‘because the gauges for 

measuring material damage may vary 

from area to area and from operation to 

operation, [OSMRE] has not established 

fixed criteria, except for those 

established under §§ 816.42 and 817.42 

related to compliance with water-quality 

standards and effluent limitations.’’ 48 

FR 43973 (emphasis added). Thus, 

OSMRE intended the WQSs set by 30 

CFR 816.42 and 817.42 to be used as 

criteria for determining ‘‘material 

damage to the hydrologic balance,’’ and 

an exceedance of those WQSs is 

inherently ‘‘material damage to the 

hydrologic balance.’’ 

Because a violation of a WQS is an 

established criterion for determining if 

‘‘material damage to the hydrologic 

balance’’ has occurred, any regulations 

proposed by Montana must be in 

accordance with and consistent with 

this Federal standard. In Montana’s 

proposal, it moves its requirement that 

violations of WQSs are ‘‘material 

damage to the hydrologic balance’’ to 

the newly created section 82–4– 

203(32)(a)(ii). The structure of the 

proposed new section makes the rule 

less effective than the Federal 

regulations because, for something to 

constitute ‘‘material damage to the 

hydrologic balance,’’ it would need to 

be both (1) a significant, long-term or 

permanent, adverse change to water 

quality or quantity, and (2) a long-term 

of permanent exceedance of a WQS 

(emphasis added). While, as discussed 

above, a violation of a WQS is an 

established criteria to categorize an 

event as causing ‘‘material damage to 

the hydrologic balance’’ in the Federal 

regulations, it is incorrect to assume that 

‘‘material damage to the hydrologic 

balance’’ will always include an 

exceedance of a WQS. The 

determinations of Probable Hydrologic 

Consequences (PHC) and CHIA both 

require information on water quantity as 

well as water quality. 30 CFR 780.21. 

The CHIA and PHC are used to 

determine if a proposed operation is 

designed to prevent ‘‘material damage to 

the hydrologic balance,’’ and the 

permittee is required to operate the 

mine in such a way that prevents 

‘‘material damage to the hydrologic 

balance.’’ Under the Federal regulations, 

both water quality and quantity issues 


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can be used to determine if material 

damage to the hydrologic balance has 

occurred. There is nothing in the 

Federal regulations that suggests a water 

quantity violation on its own would not 

be considered ‘‘material damage to the 

hydrologic balance’’ or that some 

additional ‘‘significant, long-term or 

permanent, adverse change to water 

quality or quantity’’ must also be 

present to find that material damage has 

occurred. Thus, Montana’s assertion 

that there must always be a violation of 

a WQS for an event or condition to be 

considered ‘‘material damage to the 

hydrologic balance’’ is inconsistent with 

the Federal regulations. 

Finally, Montana’s proposed changes 

would also add a requirement that an 

exceedance of a WQS must be ‘‘longterm or permanent’’ to be considered 

‘‘material damage to the hydrologic 

balance.’’ As discussed above, any 

exceedance of a WQS caused by a 

surface coal mining and reclamation 

operation is a violation of SMCRA. 

Requiring that a water quality 

exceedance be ‘‘long-term or 

permanent’’ ignores the destructive 

capabilities of a single short-term 

disturbance event. For example, a large 

amount of a regulated pollutant could 

be accidently discharged into a river 

and cause a WQS exceedance. The 

pollutant could then quickly move 

downstream with the flow of water and 

adversely affect the water quality at the 

mine site and adjacent area; while of 

short duration, the event could 

negatively impact aquatic life, drinking 

water, or recreational uses. If this 

disturbance was instead an unintended 

groundwater capture leading to dewatering of local wells or increased 

sedimentation into a nearby creek 

causing channel diversions, the 

vagueness of the term ‘‘long-term’’ 

makes it unclear whether it would rise 

to the level of material damage to the 

hydrologic balance. Under no 

circumstances should a WQS violation 

caused by a mining or reclamation 

operation be ‘‘long-term,’’ and 

Montana’s proposal to require that a 

water quality exceedance must be ‘‘longterm or permanent’’ to be considered 

material damage to the hydrologic 

balance would make the Montana 

program less effective than SMCRA and 

the Federal regulations. As an example, 

under this proposed amendment, an 

operator could repeatedly exceed WQSs 

outside of the permit area but attempt to 

avoid a determination that the impact 

was material damage to the hydrologic 

balance by MDEQ by starting and 

stopping pollution events before 

meeting the vague ‘‘long-term or 

permanent’’ threshold. 

For the reasons above, we are 

disapproving the proposed changes to 

subsection (a) of Montana’s new 

definition to material damage with 

respect to protection of the hydrologic 

balance. We are, however, approving the 

non-substantive restructuring of this 

section so that the prior definition of 

material damage to the hydrologic 

balance is included in subsection (a). 

All other proposed changes to section 

82–4–203 (32)(a) are denied. Approved 

subsection (a) now states: ‘‘with respect 

to protection of the hydrologic balance, 

degradation or reduction-by coal mining 

and reclamation operations of the 

quality or quantity of water outside of 

the permit area in a manner or to an 

extent that land uses or beneficial uses 

of water are adversely affected, water 

quality standards are violated, or water 

rights are impacted. Violation of a water 

quality standard, whether or not an 

existing water use is affected, is material 

damage.’’ 

B. MCA 82–4–203(32)(b) 

We are approving the proposed 

changes to MCA section 82–4– 

203(32)(b) because we find that the 

changes to section 82–4–203(32)(b) are 

in accordance with SMCRA and 

consistent with the Federal regulations. 

Section 82–4–203(32)(b) proposed to 

define ‘‘material damage’’ with respect 

to alluvial valley floors as ‘‘degradation 

or reduction by coal mining and 

reclamation operations of the water 

quality or quantity supplied to the 

alluvial valley floor that significantly 

decreases the capability of the alluvial 

valley floor to support agricultural 

activities[.]’’ 

This proposed definition is nearly 

identical to the Federal definition of 

‘‘materially damage the quantity or 

quality of water’’ in 30 CFR 701.5, 

which provides that, ‘‘with respect to 

alluvial valley floors, [material damage 

the quantity or quality of water is] to 

degrade or reduce by surface coal 

mining and reclamation operations the 

water quantity or quality supplied to the 

alluvial valley floor to the extent that 

resulting changes would significantly 

decrease the capability of the alluvial 

valley floor to support farming.’’ The 

biggest difference between the proposed 

State definition and the Federal 

regulation is that the Federal definition 

limits the definition to how the water 

supplied to the alluvial valley floor 

affects ‘‘farming,’’ while Montana’s 

definition expands this to ‘‘agricultural 

activities.’’ Farming, with respect to 

alluvial valley floors, is defined in 30 

CFR 701.5 and means ‘‘the primary use 

of those areas for the cultivation, 

cropping or harvesting of plants which 

benefit from irrigation, or natural 

subirrigation, that results from the 

increased moisture content in the 

alluvium of the valley floors. For 

purposes of this definition, harvesting 

does not include the grazing of 

livestock.’’ The term ‘‘Agricultural 

activities’’ is defined in 30 CFR 701.5 as, 

with respect to alluvial valley floors, 

‘‘the use of any tract of land for 

production of animal or vegetable life 

based on regional agricultural practices, 

where the use is enhanced or facilitated 

by subirrigation or flood irrigation. 

These uses include, but are not limited 

to, farming and the pasturing or grazing 

of livestock. These uses do not include 

agricultural activities which have no 

relationship to the availability of water 

from subirrigation or flood irrigation 

practices.’’ Thus, under the Federal 

regulations, the term ‘‘agricultural 

activities’’ is broader than the term 

‘‘farming’’ because it includes animal 

production in addition to cultivating 

crops. 

Montana’s approved program does not 

include a definition of farming or 

agricultural activities, making it difficult 

to understand the exact scope of 

activities included in Montana’s 

definition. However, despite the lack of 

definition, the similarity in the language 

and common understanding that 

agricultural activities would at a 

minimum include farming lead OSMRE 

to determine that Montana’s definition 

of material damage with respect to 

alluvial valley floors at section 82–4– 

203(32)(b) is in accordance with 

SMCRA and consistent with the Federal 

regulations. 

C. MCA 82–4–203(32)(c) 

We are denying the proposed addition 

of MCA section 82–4–203(32)(c). This 

proposed change would add paragraph 

(c) to section 82–4–203(32) to provide a 

definition of ‘‘material damage’’ 

resulting from subsidence caused by an 

underground coal mining operation. As 

proposed, this definition would mean: 

‘‘any functional impairment of surface 

lands, features, or structures; (ii) any 

physical change that has a significant 

adverse impact on the affected land’s 

capability to support any current or 

reasonably foreseeable uses or causes 

significant loss in production or income; 

or (iii) any significant change in the 

condition, appearance, or utility of any 

structure or facility from its 

presubsidence condition.’’ Following 

our review, we find that proposed 

section 82–4–203(32)(c) is inconsistent 

with the Federal regulations and are not 

approving this proposed change. 


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Montana’s proposed definition of 

‘‘material damage’’ caused by 

subsidence is nearly identical to the 

Federal definition of ‘‘material damage’’ 

as it relates to subsidence at 30 CFR 

701.5. However, unlike the Federal 

regulations, Montana’s definition does 

not include ‘‘facilities’’ in its list of 

features that can be considered 

functionally impaired by subsidence in 

proposed section 82–4–203(32)(c)(i). 

Montana has not provided clarification 

as to why ‘‘facilities’’ was omitted from 

this proposed paragraph. In deciding 

whether this proposed regulation can be 

approved, we must determine if 

grouping the term ‘‘facilities’’ within the 

term ‘‘structure’’ would make this 

paragraph as effective as the Federal 

regulations. 

Neither the Federal nor the Montana 

regulations formally define ‘‘facility’’ or 

‘‘structure,’’ so we use the plain 

language definition of both terms, as 

well as how they are used throughout 

the Federal regulations to determine 

their meanings. ‘‘Structure’’ generally is 

used to refer to a standalone, humanmade formation that performs an 

intended job, such as a diversion, 

sediment pond, refuse pile, or road. 

Defined terms in § 701.5 of the Federal 

regulations that use the term ‘‘structure’’ 

in their definitions but not the term 

‘‘facility’’ include: ‘‘head-of-hollow fill,’’ 

‘‘impoundments,’’ and ‘‘valley fill.’’ 

‘‘Facility,’’ on the other hand, generally 

is used to describe a place, or collection 

of structures that performs a more 

complex task. Defined terms in § 701.5 

of the Federal regulations that use the 

term ‘‘facility’’ in their definitions but 

not ‘‘structure’’ include: ‘‘public office’’ 

and ‘‘coal preparation plant.’’ The two 

terms have distinct and separate 

meanings, and the plain language 

definition of ‘‘structure’’ does not fully 

encapsulate the meaning of ‘‘facilities’’ 

as there are facilities that do not contain 

structures. Furthermore, Montana uses 

the phrase ‘‘structure or facility’’ in 

proposed section 82–4–203(32)(c)(iii). 

Listing both terms here, and using ‘‘or’’ 

to connect them, indicates that Montana 

understands the two terms have distinct 

and separate meanings. Thus, omitting 

‘‘facilities’’ from the list of features that 

can be considered functionally impaired 

by subsidence in proposed section 82– 

4–203(32)(c)(i) would not be in 

accordance with SMCRA or consistent 

with the requirements of the Federal 

regulations. 

D. MCA 82–4–222(1)(m) 

We are denying all proposed changes 

to MCA section 82–4–222(1)(m). HB 

576, in part, modified MCA sec. 82–4– 

222(1)(m) to delete the following two 

sentences: ‘‘However, this 

determination is not required until 

hydrologic information on the general 

area prior to mining is made available 

from an appropriate Federal or State 

agency. The permit may not be 

approved until the information is 

available and is incorporated into the 

application.’’ Section 82–4–222 pertains 

to permit applications for the Montana 

program, and paragraph (1)(m) discusses 

the determination of the probable 

hydrologic consequences of coal mining 

and reclamation operations. By this 

change, Montana proposes to remove 

two requirements from section 82–4– 

222(1)(m). First, Montana proposes to 

remove the requirement that the permit 

applicant’s determination of probable 

hydrologic consequences is not required 

until hydrologic information of the premining area is made available from an 

appropriate Federal or State agency. 

Second, Montana proposes to remove 

the requirement that the relevant permit 

may not be approved until the 

hydrologic information is available and 

incorporated into the application. 

The Federal counterparts to this 

requirement are found in 30 U.S.C. 

1257(b)(11) and 30 CFR 780.21(c)(1), 

(c)(2), (f)(1), and (f)(2). The statutory 

provisions at 30 U.S.C. 1257(b)(11) 

require that a determination of probable 

hydrologic consequences of a mining 

operation ‘‘shall not be determined until 

hydrologic information on the general 

area prior to mining is made available 

from an appropriate Federal or State 

agency . . . .’’ The regulations at 30 

CFR 780.21(c)(1) state that hydrologic 

and geologic information are necessary 

to assess probable cumulative 

hydrologic impacts and that, if the 

necessary hydrologic and geologic 

information is available from an 

appropriate Federal or State agency, 

then that information must be provided 

to the regulatory authority in order for 

it to assess probable cumulative 

hydrologic impacts. The regulations at 

30 CFR 780.21(c)(2) state that, if the 

necessary hydrologic and geologic 

information is not available from a 

Federal or State agency, the operator 

may submit hydrologic and geologic 

information that it has collected on its 

own. The regulations at 30 CFR 

780.21(f)(1) state that an application 

must have a PHC determination, and 

paragraph (f)(2) continues by providing 

that the PHC must be determined using 

hydrologic and geologic information 

that is collected for the permit 

application. 

The removal of the two requirements 

from section 82–4–222(1)(m), as 

described above, would mean that the 

MDEQ’s hydrological determination is 

not required until hydrologic 

information is available from an 

appropriate Federal or State agency and 

would also mean that the Montana 

program would no longer meet all of the 

requirements set forth in 30 U.S.C. 

1257(b)(11) and would make the 

Montana program less effective than 30 

CFR 780.21(f)(2). The regulations at 30 

CFR 780.21(f)(2) require a determination 

of PHC to be made using the baseline 

hydrologic information that was 

collected for the permit application. By 

proposing to remove the provision that 

permit applicant’s PHC determination is 

not required until hydrologic 

information of the pre-mining area is 

made available from an appropriate 

Federal or State agency, Montana’s 

program would allow an applicant to 

make a PHC determination before all of 

the necessary hydrologic information is 

gathered, which could limit the quality 

of the PHC. 

The regulations at 30 CFR 780.21(c)(3) 

state that a permit must not be approved 

until the necessary hydrologic and 

geologic information is available to the 

regulatory authority. Because this 

Federal regulation requires hydrologic 

and geographic information to be 

provided to a regulatory authority before 

an application is approved, Montana’s 

proposed removal of the same 

requirement in section 82–4–222(1)(m) 

would make it inconsistent with the 

Federal regulations. Thus, we are 

denying all of Montana’s proposed 

changes to section 82–4–222(1)(m) of 

the MCA. 

E. Section 4, 5, 6, & 7 of House Bill 576 

During the 2023 legislative session, 

Montana passed HB 576, which 

modified sections 82–4–203(32) and 82– 

4–222(1)(m). HB 576 also added 

contingencies that are not codified into 

the MCA but that affect the amended 

parts of the MCA. 

1. Section 4. Severability 

Section 4 of HB 576 states that if any 

part of HB 576 is found invalid, the 

remainder of the bill that is found valid 

will be severable from the invalid part 

and remain in effect. While this is 

legislative language and not part of 

Montana’s surface mining program, we 

note that the Federal regulations at 30 

CFR 732.17(h)(7) require the Director to 

consider all relevant information, using 

the criteria set forth in 30 CFR 732.15, 

to approve or disapprove the 

amendment. The Director may approve 

all or parts of an amendment that are in 

accordance with SMCRA and consistent 

with the Federal regulations. Here, 

notwithstanding section 4 of HB 576, 

OSMRE has identified the sections that 


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are approved and the sections that are 

disapproved. 

2. Section 5. Contingent Voidness 

Section 5 of HB 576 states that, if the 

Secretary of the Interior disapproves of 

any provision of HB 576 under 30 CFR 

part 732, then that portion of the bill is 

void. Furthermore, MDEQ is required to 

notify the code commissioner of a 

disapproval within 15 days of the 

effective date of disapproval. 

Notwithstanding HB 576, the Federal 

regulations give the Director the 

authority to approve or disapprove all or 

part of a proposed amendment to a State 

program. 30 CFR 732.17(h)(7). Any 

program amendment or part of a 

program amendment disapproved by the 

Director would be void and would not 

become part of Montana’s approved 

program. 

3. Section 5: Immediate Effectiveness 

Section 6 of HB 576 states that its 

provisions are effective on passage and 

approval of the bill. This provision is 

contrary to SMCRA and the Federal 

regulations that state that no change to 

law or programs can take effect for 

purposes of a State program until the 

amendment is approved by the Director. 

30 CFR 732.17(g). 

4. Section 7: Retroactive Applicability 

Section 7 of HB 576 states that 

amendments to the MCA apply 

retroactively to actions for judicial 

review, amendment, license, arbitration, 

action, certificate, or inspection that are 

pending but not yet decided on or after 

the effective date of HB 576. Section 7 

of HB 576 attempts to make the 

proposed changes to sections 82–4– 

203(32) and 82–4–222(1)(m) apply 

retroactively to pending issues that have 

not been decided on or after the 

effective date of HB 576. As with the 

attempt to make the changes in HB 576 

effective immediately, this section is 

contrary to SMCRA and the Federal 

regulations. Specifically, the Federal 

regulations at 30 CFR 732.17(g) mandate 

that no changes to laws will take effect 

until OSMRE approves the amendment, 

and section 723.17(i)(12) states that all 

decisions of the Secretary to approve or 

disapprove program amendments must 

be published in the Federal Register. 

The Administrative Procedure Act 

generally requires a 30-day delay before 

a rule becomes effective. 5 U.S.C. 

553(d). 

IV. Summary and Disposition of 

Comments 

We asked for initial public comments 

on the amendment during a public 

comment period that ended on 

November 6, 2023. We received 232 

written comments during our initial 

comment period, and we received 

testimony from 23 individuals at a 

public hearing held in Billings, MT on 

November 1, 2023. (Administrative 

Record No. MT–042–23). As mentioned 

above, on March 28, 2024, OSMRE sent 

a letter to MDEQ. (Administrative 

Record No. MT–042–34). The letter 

detailed concerns that OSMRE had with 

the proposed amendment, all of which 

is described in Section III above. While 

the letter only solicited a response from 

MDEQ, OSMRE received several 

unsolicited responses for other parties. 

Due to the increased interest in the 

proposed amendment generated by that 

letter, and, in the interest of fairness for 

public participation, OSMRE 

announced the re-opening of the public 

comment period for 15 days on July 30, 

2024. (Administrative Record No. MT– 

042–39). 

Due to the large number of comments, 

substantially similar comments and 

points have been consolidated to avoid 

redundancy. Over 190 commenters were 

opposed to the approval of this 

amendment and raised similar concerns, 

discussed below. Comments expressing 

generalized support for or opposition to 

the proposed amendment, generalized 

concerns about environmental impacts 

from mining operations, concerns about 

the mining industry, fossil fuel use, and 

the need for the United States to 

transition to renewable energy, general 

statements about the public’s opposition 

to HB 576 and prior legislative efforts, 

comments about SB 392 and the topic 

of litigation and attorney’s fees (which 

will be discussed in a separate Final 

Rule Notice (MT–043–FOR)), and other 

non-responsive comments are beyond 

the scope of this amendment and no 

response is necessary. To view 

comments in full, visit https://

www.regulations.gov/. 

Comment 1: There was consensus 

among the group of 190 commenters in 

opposition to the proposed amendment 

that the use of ‘‘significant long-term or 

permanent,’’ as applied to the definition 

of ‘‘material damage to the hydrologic 

balance,’’ was too ambiguous. They 

expressed concern that because these 

terms are not defined, MDEQ or a judge 

could interpret these terms too 

subjectively, and that the ambiguity of 

this language ‘‘all but guarantee[s] some 

degree of damage outside of a permit 

boundary.’’ 

OSMRE Response: OSMRE agrees 

with commenters’ concerns that, 

without a definition or guidance on 

what constitutes a ‘‘long-term or 

permanent’’ adverse change, it would be 

very difficult to establish a metric for 

what constitutes a long-term impact and 

that this proposed change renders the 

definition of material damage to the 

hydrologic balance not in accordance 

with SMCRA and inconsistent with the 

Federal regulations. Please see Section 

III(A) to see OSMRE’s full discussion 

about the proposed definition of 

‘‘material damage to the hydrologic 

balance.’’ 

Comment 2: Similarly, commenters 

opposed to this proposed amendment 

repeatedly considered Montana’s 

proposed changes to baseline condition 

requirements to be inadequate because 

the proposed amendment removes the 

requirement that an operation submit 

baseline water information while also 

having a determination of ‘‘material 

damage to the hydrologic balance’’ rely 

on baseline water information. 

OSMRE Response: OSMRE agrees that 

Montana’s proposed edits to section 82– 

4–222(1)(m) would make Montana’s 

program not in accordance with SMCRA 

and inconsistent with the Federal 

regulations. Please see Section III(D) for 

OSMRE’s discussion on the proposed 

changes to baseline hydrologic 

information. 

Comment 3: Several commenters 

stated that the immediate effective date 

and retroactive applicability of the bill 

are inconsistent with Federal 

regulations, citing 30 CFR 732.17(g), 

which requires that no State coal 

regulations go into effect until approved 

by OSMRE, and 30 U.S.C. 1202(i), 

which requires all appropriate 

procedures are followed for public 

participation in the revision of a State’s 

program. 

OSMRE Response: We agree with 

these commenters on the proposed 

immediate effective date and retroactive 

applicability provisions; please see 

OSMRE’s full discussion in Section 

III(E). 

Comment 4: Some commenters 

opined that the proposed change of 

definition for ‘‘material damage to the 

hydrologic balance’’ is inadequate and 

pointed to Ohio River Valley Envtl. 

Coalition, Inc. v. Norton, 2005 WL 

2428159 (S.D.W. Va. Sept. 30, 2005), a 

case where a court found similar 

language in a West Virginia Amendment 

to be less effective than the Federal 

regulations. They noted that the court 

found that West Virginia’s amendment 

to its definition of ‘‘material damage’’ 

failed because it did not provide a 

reasoned analysis to explain how a 

subjective standard with vague terms 

(‘‘long-term or permanent change’’) can 

ensure that the State program 

amendment was not less effective than 

the Federal regulations. Commenters 

stated that HB 576 fails on the same 


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grounds, as the proposed definition of 

‘‘material damage to the hydrologic 

balance’’ and its use of the terms ‘‘longterm or permanent’’ does not give 

MDEQ clear standards when applying 

the definition. They stated that, as 

written, the Montana amendment would 

allow an operator to violate WQSs so 

long as they are not ‘‘long-term or 

permanent’’ violations. 

OSMRE Response: OSMRE has 

disapproved this portion of Montana’s 

proposed amendment. Please see 

OSMRE’s discussion of the definition of 

‘‘material damage to the hydrologic 

balance’’ and its effects on WQSs in 

Section III(A). Additionally, OSMRE 

notes that the West Virginia definition 

of ‘‘material damage to the hydrologic 

balance’’ that was discussed in Ohio 

River Valley Envtl. Coalition, Inc. v. 

Norton, 2005 WL 2428159 (S.D.W. Va. 

Sept. 30, 2005), was later approved by 

OSMRE in 2008, 73 FR 78979, and 

OSMRE’s approval of the definition was 

upheld by the Fourth Circuit in Ohio 

River Valley Envtl. Coalition, Inc. v. 

Salazar, 466 Fed. Appx. 161, 167 (4th 

Cir. 2012). While OSMRE approved 

West Virginia’s definition of ‘‘material 

damage of the hydrologic balance,’’ the 

definition was applied only in the 

context of a CHIA and, thus, is different 

from Montana’s proposed definition in 

this amendment. 

Comment 5: Commenters stated that, 

as proposed, the Montana amendment 

conflicts with 30 U.S.C. 1292(a)(4), a 

provision of SMCRA that prevents the 

law from altering the Clean Water Act 

(CWA). The preamble to the Federal 

rulemaking stated that there are no fixed 

criteria for ‘‘material damage’’ except for 

compliance with WQSs, and, as 

proposed, Montana would allow long 

term or permanent violations of water 

quality; thus, the commenters 

concluded that Montana would be 

violating the protections of the CWA. 

OSMRE Response: OSMRE disagrees 

with the comment that the proposed 

change to ‘‘material damage to the 

hydrologic balance’’ would violate the 

CWA. As discussed in more detail 

below, the EPA submitted a comment 

on this amendment stating that the 

proposed amendment would not impact 

or alter MDEQ’s obligations under the 

CWA. (Administrative Record No. MT– 

042–07). OSMRE does agree that 

requiring a ‘‘long-term or permanent’’ 

violation of WQSs in order to trigger 

‘‘material damage to the hydrologic 

balance’’ would not be in accordance 

with SMCRA and would not be 

consistent with the Federal regulations, 

and we have denied this portion of 

Montana’s proposal. Please see Section 

III(A) for our full discussion on this 

topic. 

Comment 6: Commenters contended 

that the proposed changes to section 82– 

4–222(1)(m) conflict with SMCRA and 

that the proposed deletions violate 30 

CFR 780.21(c)(1), (f), and (g)(1), and 30 

U.S.C. 1257(b)(11). 

OSMRE Response: We agree that 

Montana’s proposed changes to section 

82–4–222(1)(m) are inconsistent with 

the Federal regulations and have denied 

the portion of Montana’s proposal. 

Please see our full discussion in Section 

III(D). 

Public Comment 7: A commenter 

stated that HB 576 will further deepen 

ongoing issues around water quality and 

quantity for cattle and subsidence 

cracks. 

OSMRE Response: OSMRE 

determined that the proposed definition 

for ‘‘material damage to the hydrologic 

balance’’ was neither in accordance 

with SMCRA nor consistent with the 

Federal regulations and denied 

substantive changes to the amendment. 

Please see Section III(A) and III(C) for 

OSMRE’s discussion on Montana’s 

proposed changes. 

Public Comment 8: Commenters 

agreed with OSMRE’s preliminary 

findings in its OSMRE’s March 28, 2024, 

letter to MDEQ that the use of 

‘‘significant’’ and ‘‘permanent or longterm’’ in the proposed definition of 

‘‘material damage to the hydrologic 

balance’’ is less stringent and effective 

than SMCRA and the Federal 

regulations. They disagreed with 

industry comments to the effect that 

Montana’s definition of ‘‘material 

damage to the hydrologic balance’’ 

cannot ‘‘run afoul’’ of Federal law 

because there is no Federal definition of 

the term. The commenters stated that 

this argument has been rejected by 

Federal courts, citing Ohio River Valley 

Envt’l Coal., Inc. v. Kempthorne, 473 

F.3d 94, 103 (4th Cir. 2006). 

OSMRE Response: Consistent with 

our preliminary findings in our March 

28, 2024, letter to MDEQ, we have 

denied the proposed changes to the 

definition of ‘‘material damage to the 

hydrologic balance.’’ For further 

information, please see OSMRE’s 

discussion of the use of ‘‘significant’’ 

and ‘‘long-term or permanent’’ within 

this definition in Section III(A), as well 

as our response to industry commenters 

below. 

Public Comment 9: Commenters 

expressed concern that a requirement 

that harm to the hydrologic balance 

must be ‘‘permanent or long-term’’ to 

rise to the level of ‘‘material damage’’ 

and asserted that such an interpretation 

would contradict SMCRA requirements 

at 30 U.S.C. 1202(b), 1259, and 1307(b). 

Commenters raised concerns that HB 

576 would allow short- or medium-term 

impacts of high magnitude to water 

quality and quantity, contrary to 

comments submitted by industry. 

OSMRE Response: We are denying 

Montana’s proposed definition of 

material damage with respect to 

protection of the hydrologic balance 

because it not in accordance with 

SMCRA and is inconsistent with the 

Federal regulations. Please see Section 

III(A) for the discussion of our decision. 

Public Comment 10: Commenters 

expressed concern that HB 576 is 

inconsistent with the Montana Water 

Quality Act and the CWA because the 

proposal would allow pollution events 

that violate WQSs in short- and 

medium-term timeframes. Thus, 

commenters argue that HB 576 also 

violates SMCRA by superseding 

provisions of the CWA. 

OSMRE Response: We note that the 

EPA found that the proposed changes 

would not violate the CWA because the 

statute could not supersede the EPA’s 

regulations regarding WQSs. 

Nevertheless, for the reasons set forth in 

Section III(A) above, we are denying the 

portion of Montana’s proposal that 

would change the current definition of 

material damage to the hydrologic 

balance because it is not in accordance 

with SMCRA and not consistent with 

the Federal regulations. Further 

discussion of EPA’s comment can be 

found below. 

Public Comment 11: Commenters 

stated that Montana’s proposed 

definition is distinguishable from the 

Wyoming and West Virginia definitions. 

They allege that OSMRE’s decision for 

Wyoming shows the agency’s longstanding position that ‘‘material 

damage’’ cannot be ‘‘time limited’’ and 

that, unlike West Virginia, Montana’s 

proposed definition of ‘‘material 

damage’’ is a performance standard as 

well as a reclamation standard and 

would have much broader applicability 

than the West Virginia definition. 

OSMRE Response: Please see 

OSMRE’s response to Industry 

Comment 2 below. 

Public Comment 12: Commenters 

agreed with OSMRE’s preliminary 

findings in our March 28, 2024, letter to 

MDEQ, that Montana’s proposed 

requirement that water quality 

violations be ‘‘long-term or permanent’’ 

to be considered ‘‘material damage to 

the hydrologic balance’’ is inconsistent 

with SMCRA and the Federal 

regulations. The commenters noted that 

the proposed change to the definition of 

‘‘material damage to the hydrologic 

balance’’ was not necessary to enable 


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strip-mining adjacent to water bodies 

that had failed water quality standards 

prior to the permittee’s mining, as long 

as the mine does not cause additional 

harms to water quality. The Montana 

Supreme Court in Montana Env’t Info. 

Ctr. v. Westmoreland Rosebud Mining, 

LLC, 2023 MT 224, 68–70, 414 Mont. 80. 

545 P.3d 623, held that under Montana’s 

current definition of ‘‘material damage,’’ 

an existing impairment to a water body 

does not prevent additional mining 

unless the mining threatens to cause 

additional harm to water quality. 

OSMRE Response: OSMRE is 

disapproving Montana’s proposed 

definition of ‘‘material damage’’ with 

respect to protection of the hydrologic 

balance. Because other non-segregable 

elements of this definition rendered the 

proposed definition not in accordance 

with SMCRA and not consistent with 

the Federal regulations, we did not 

reach a determination of 

appropriateness about this provision. 

Please see OSMRE’s discussion of the 

topic in Section III(A), as well as our 

response to Industry Comment 10. 

Public Comment 13: Commenters 

concurred with OSMRE’s preliminary 

finding in the March 28, 2024, letter that 

we sent to MDEQ that stated that the 

omission of ‘‘facilities’’ from the 

proposed definition of ‘‘material 

damage’’ in relation to subsidence is 

less stringent than SMCRA and less 

effective than the Federal regulations. 

Commenters noted that even if the 

omission of ‘‘facilities’’ was a mistake, 

the definition should not be approved 

because the provision, as written, is less 

protective than the Federal standards 

and courts and regulators are supposed 

to apply statutes as written, without 

adding or subtracting language. 

OSMRE Response: OSMRE agrees. 

Please see OSMRE’s discussion of 

‘‘material damage’’ regarding subsidence 

in Section III(C). 

Public Comment 14: Commenters 

supported OSMRE’s preliminary finding 

in the March 28, 2024, letter that we 

sent to MDEQ that stated that Montana’s 

proposed deletion of the requirement to 

obtain and submit baseline information 

from State and Federal agencies, and the 

prohibition on permit issuance until 

such information is available, is 

inconsistent with and less stringent than 

SMCRA. The commenters stated that 

industry comments indicating that the 

amendment would not allow permit 

issuance without the necessary 

information baseline information is 

without support. 

OSMRE Response: Please see 

OSMRE’s discussion of Montana’s 

proposed changes to baseline hydrologic 

information in Section III(D), as well as 

our response to industry comments, 

below. 

Public Comment 15: Commenters 

expressed support for OSMRE’s 

preliminary finding in the March 28, 

2024, letter that we sent to MDEQ that 

stated that State program amendments 

cannot be made immediately effective 

by an act of a State legislature because 

it is inconsistent with SMCRA. 

Commenters noted that section 505(a) of 

SMCRA is not a declaration of State law 

supremacy but is instead a clarification 

that State law may not be superseded by 

SMCRA, except when it is inconsistent 

with SMCRA or its regulations. 

Commenters added that W. Virginia 

Highlands Conservancy v. Norton, 137 

F. Supp.2d 687, 697 (S.D.W. Va. 2001), 

supports their position that SMCRA 

does not violate the Tenth Amendment 

of the constitution and Federal law is 

not supplanted when a State gains 

primacy over its own coal program. 

Commenters argued that OSMRE 

possesses the statutory authority to 

determine whether sections 6 and 7 of 

HB 576 are inconsistent with the 

Federal regulations. 

OSMRE Response: Please see 

OSMRE’s discussion of the topic in 

Section III(E), as well as our response to 

Industry Comment 13, below. 

Public Comment 16: Commenters 

stated that the fact that there is not a 

Federal definition of ‘‘material damage 

to the hydrologic balance’’ does not give 

states the ability to establish definitions 

of ‘‘material damage to the hydrologic 

balance’’ that conflict with other 

provisions of SMCRA or the Federal 

regulations. Citing 30 CFR 730.5, 

commenters stated that if a term is 

found to be less stringent or less 

effective than SMCRA or the Federal 

implementing regulations, then it may 

not be approved. 

OSMRE Response: OSMRE agrees that 

any definition of ‘‘material damage to 

the hydrologic balance’’ must be in 

accordance with all provisions of 

SMCRA and consistent with all 

provision of the Federal regulations as 

those terms are defined in 30 CFR 730.5. 

The absence of a Federal definition of a 

term does not allow a State program to 

create definition that is in conflict with 

any provision in SMCRA or the Federal 

implementing regulations. 

Public Comment 17: Commenters 

stated that every part of HB 576 is 

inconsistent with SMCRA, except 

Section 4, Severability, and Section 5, 

Contingent Voidness, and that, because 

all substantive portions of the bill 

should be disapproved by OSMRE, the 

entire amendment should be 

disapproved. 

OSMRE Response: OSMRE, when 

processing program amendments, has 

the discretion to approve, disapprove, or 

approve portions of an amendment 

while disapproving other portions of an 

amendment. Here, OSMRE reviewed 

each proposed provision to determine if 

it was in accordance with SMCRA and 

consistent with the Federal regulations. 

After this analysis, OSMRE is 

disapproving the proposed changes to 

MCA 82–4–203(32)(a) and (c) and MCA 

82–4–222(32)(1)(m) but approving the 

proposed definition at 82–4–203(32)(b) 

and approving the renumbering of the 

existing definition of material damage 

‘‘with respect to protection of the 

hydrologic balance’’ from section 82–4– 

203(32) to section 82–4–203(32)(a). 

Public Comment 18: Commenters 

stated that the proposed revisions to the 

requirements for hydrologic information 

for permit applications would allow 

mining to begin before necessary data 

collection and risk analyses are 

finished. They state that the 

requirements for hydrologic information 

are supposed to prevent unforeseen 

circumstances and dire effects to water 

quality and quantity, as most mining is 

detrimental to water pre-existing on the 

land before the mine is permitted. They 

stated that they were opposed to any 

changes that would allow for permit 

approval before hydrologic information 

is assessed. 

OSMRE Response: We are denying the 

proposed changes to MCA 82–4– 

222(1)(m). Please see our full discussion 

in Section III(D). 

Industry Comment 1: Industry 

commenters stated that the proposed 

definition of ‘‘material damage to the 

hydrologic balance’’ is more consistent 

with the plain meaning of ‘‘material 

damage’’ than the current definition. 

They alleged that removing the 

requirement that any water quality 

exceedance is per se ‘‘material damage’’ 

prevents a company from being accused 

of having caused ‘‘material damage’’ 

simply because they remain consistent 

with pre-existing exceedances of WQSs 

that are caused by factors other than 

coal mining. Commenters maintained 

that Montana’s addition of ‘‘significant’’ 

to its definition of ‘‘material damage to 

the hydrologic balance’’ is consistent 

with SMCRA and the Federal 

regulations. Commenters pointed to the 

Federal definitions of ‘‘material 

damage’’ with respect to subsidence and 

alluvial valley floors, both of which use 

‘‘significant’’ in their definitions. 

OSMRE Response: OSMRE does not 

agree that the proposed definition of 

‘‘material damage to the hydrologic 

balance’’ or that the addition of 

‘‘significant’’ to the definition is in 


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accordance with SMCRA or consistent 

with the Federal regulations, and we 

have disapproved the proposed change 

to that definition. For a complete 

discussion of OSMRE’s analysis of the 

proposed definition, please look to 

Section III(A). 

Industry Comment 2: Commenters 

noted that Montana’s proposed 

definition of ‘‘material damage to the 

hydrologic balance’’ is very similar to 

the definitions used in Wyoming 

(WCWR 020–0006–1 (cf)) and West 

Virginia (W.Va. CSR 38–2–3(3.22.e)). 

Both definitions require that ‘‘material 

damage to the hydrologic balance’’ must 

be ‘‘significant’’ and ‘‘long-term.’’ 

Commenters stated that, like West 

Virginia, Montana’s definition of 

‘‘Material damage to the hydrologic 

balance,’’ is limited to CHIAs and the 

assessment of Probable Cumulative 

Impact (PCI). For Wyoming, 

commenters alleged that OSMRE erred 

in relying on an ‘‘informal clarification’’ 

provided by the Wyoming State program 

to approve the Wyoming definition. 

They claim that this extra-statutory 

evidence overrules the plain text of the 

State law, and that the plain language of 

Wyoming’s definition encompassed 

both short and long-term events just as 

the plain language of Montana’s 

proposed amendment would cover both 

short-term and long-term events. 

OSMRE Response: We acknowledge 

that Montana’s proposed definition of 

‘‘material damage the hydrologic 

balance’’ is superficially similar to that 

of Wyoming and West Virginia, but 

upon closer examination, Montana’s 

proposed use of ‘‘long-term or 

permanent’’ in its definition of 

‘‘material damage of the hydrologic 

balance’’ is distinguishable. Wyoming, 

for instance, defines ‘‘material damage 

to the hydrologic balance’’ as ‘‘a 

significant long-term or permanent 

adverse change to the hydrologic 

regime.’’ WCWR 020–0006–1 (cf). Our 

approval of the Wyoming definition, 

however, was informed by Wyoming’s 

clarification that this definition was not 

time-restricted and that ‘‘its regulations 

and statutes require, by common usage 

and definition, prevention of long- and 

short-term adverse changes and uses.’’ 

45 FR 20940 (Mar. 31, 1980). Montana, 

to the contrary, has provided no similar 

clarity for its definition, so we 

interpreted the proposed change based 

on the plain meaning of the language 

provided to mean that it has a timebased restriction. 

Similarly, West Virginia defines 

‘‘material damage to the hydrologic 

balance’’ within its regulations on 

CHIAs to mean ‘‘any long term or 

permanent change in the hydrologic 

balance caused by surface mining 

operation(s), which has a significant 

adverse impact on the capability of the 

affected water resource(s) to support 

existing conditions and uses.’’ W.Va. 

CSR 38–2–3(3.22.e); see also 73 FR 

78970, 78974 (Dec. 24, 2008). This 

definition of ‘‘material damage to the 

hydrologic balance’’ is limited to CHIAs 

and does not apply more broadly to the 

West Virginia program, such as 

determining whether a violation of the 

material damage to the hydrologic 

balance standard exists. This is an 

important distinction because CHIAs are 

cumulative assessments performed 

before issuing any coal mining permit, 

and thus it is reasonable that they 

would look to ‘‘long term or permanent’’ 

effects on the hydrologic balance. West 

Virginia’s definition of ‘‘material 

damage to the hydrologic balance,’’ 

however, does not apply in other places 

within the regulations. Conversely, 

contrary to the assertions of this 

commenter, the way this proposal is 

drafted, the requirement that impacts 

must be ‘‘long-term or permanent’’ 

would be applied for all iterations of 

‘‘material damage to the hydrologic 

balance.’’ Therefore, as discussed above, 

this would make Montana’s regulations 

inconsistent with the Federal 

regulations. 

Industry Comment 3: Commenters 

stated that the removal of language from 

section 82–4–222(1)(m) removes an 

implication that the issuance of a permit 

under MSUMRA requires input from 

some agency other than the MDEQ and, 

they opined that, as proposed, this 

section closely tracks the Federal 

regulations at 30 CFR 780.21(f). They 

also added that nothing in the proposed 

language compels MDEQ to issue 

permits absent the required information. 

OSMRE Response: Please see Section 

III(D) to see OSMRE’s findings about 

baseline hydrologic information. 

OSMRE disagrees with this commenter’s 

statement that Montana’s proposed 

changes to section 82–4–222(1)(m) 

remove an implication that the 

appropriate hydrologic information 

must be provided by an agency other 

than MDEQ. No such implication exists. 

Montana’s current language requires 

that hydrologic information be ‘‘made 

available from an appropriate federal or 

state agency.’’ MDEQ is an appropriate 

State agency. 

Industry Comment 4: Commenters 

stated that, because there is no Federal 

definition of ‘‘material damage to the 

hydrologic balance,’’ Montana has broad 

discretion to define the term. A member 

of the Montana Legislature made a 

similar comment. 

OSMRE Response: We acknowledge 

that there is no Federal definition for 

this term, but any definition proposed 

by Montana must be in accordance with 

SMCRA and consistent with the Federal 

regulations. We have determined that 

Montana’s proposed definition does not 

meet that standard, even though there is 

no definition of that term in the Federal 

regulations. Please see Section III(A) for 

a more thorough discussion of our 

analysis on this topic. 

Industry Comment 5: Commenters 

stated that the proposed amendment 

clarifies the distinction between 

SMCRA’s protection of the hydrologic 

balance and the CWA’s application to 

point source pollution. They note that, 

on one hand, the NPDES program is a 

regulatory scheme that regulates the 

discharge of surface and stormwater that 

interacts with areas of mining activity 

and protects acute water quality issues, 

whether temporary or permanent, 

within the permit area. According to the 

commenters, SMCRA, on the other 

hand, protects the hydrologic balance of 

the area, which is an assessment of 

cumulative impacts from coal mining 

and its impact outside the permit area. 

Commenters state that by removing the 

current language in section 82–4– 

203(32), which provides that a WQS 

violation is considered material damage 

to the hydrologic balance, the proposed 

Montana regulations will better 

distinguish the separate roles of SMCRA 

and the CWA. 

OSMRE Response: We are 

disapproving the proposed section of 

amendment. Please see Section III(A) for 

our discussion on the relationship 

between EPA WQSs and the definition 

of ‘‘material damage of the hydrologic 

balance.’’ 

Industry Comment 6: Commenters 

opined that OSMRE should not dictate 

how a State implements SMCRA in its 

own program. They stated that OSMRE’s 

role is to determine if a State’s 

regulations are in accordance with and 

consistent with the provisions of 

SMCRA and that a State is consistent 

with SMCRA when it is no less stringent 

than, meets the requirements of, and 

include all applicable provisions of 

SMCRA. 

OSMRE Response: This particular 

proposed amendment was submitted 

voluntarily by Montana. Under 30 CFR 

732.17(b), a State with primacy over its 

coal regulatory program is required to 

submit any proposed amendments to its 

approved State program to OSMRE. 

OSMRE’s role is then to determine, for 

regulatory program amendments, 

whether the proposed changes are in 

accordance with SMCRA and consistent 

with the Federal regulations as those 


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terms are defined in 30 CFR 730.5. For 

more information on a State’s and 

OSMRE’s procedures and criteria for 

approving amendments, please refer to 

30 CFR 732.17. 

Industry Comment 7: After OSMRE 

sent a letter to MDEQ on March 28, 

2024, an industry commenter noted that 

it disagreed with OSMRE’s preliminary 

finding that Montana’s proposed use of 

‘‘long-term or permanent adverse 

impacts’’ did not meet the Federal 

standards. The commenter explained 

that, because there is no definition of 

the term in Federal regulations, 

Montana’s definition cannot ‘‘run afoul’’ 

of Federal law and that OSMRE should 

not evaluate Montana’s definition of 

‘‘material damage to the hydrologic 

balance’’ until OSMRE either 

promulgates a definition of the term in 

the Federal regulations or Congress 

defines it. Further, the industry 

commenter alleged that OSMRE is using 

an improvised definition in its 

evaluation of Montana’s proposed 

definition of ‘‘material damage to the 

hydrologic balance.’’ 

OSMRE Response: As explained in 

Section III(A) and in response to 

Industry Comment 4, we do not agree 

with the contention that, because there 

is no current definition of ‘‘material 

damage to the hydrologic balance’’ in 

the Federal regulations, Montana’s 

definition cannot ‘‘run afoul’’ Federal 

standards. 

Industry Comment 8: The same 

industry commenter stated that the 

proposed amendment’s use of the word 

‘‘significant’’ is in line with the use of 

‘‘significant’’ for the Federal definitions 

of material damage in the context of 

alluvial valley floors and subsidence. 

OSMRE Response: Please see the 

response to State Representative 

Comment 2. 

Industry Comment 9: The same 

industry commenter did not agree with 

OSMRE’s concern that a ‘‘short-term 

high pollution event’’ could evade 

enforcement because of Montana’s 

proposed definition. The commenter 

stated that a ‘‘short-term high pollution 

event’’ would still meet Montana’s 

proposed definition of ‘‘material damage 

to the hydrologic balance’’ because it 

would cause long-term or permanent 

damage and that such events would be 

subject to enforcement under Montana’s 

coal regulations and other Montana 

laws. 

OSMRE Response: We disagree with 

the contention that a short-term 

pollution event like the one mentioned 

in our May 28, 2024, letter to MDEQ 

would necessarily be considered ‘‘longterm or permanent’’ damage under the 

plain language of the proposed 

definition of ‘‘material damage to the 

hydrologic balance’’ or that the fact that 

the proposed definition omits a lessthan-long term or permanent event 

should not matter because it would be 

covered under other Montana coal 

regulations and laws. Please see Section 

III(A) for our discussion as to why the 

proposed definition is not in accordance 

with SMCRA or consistent with the 

Federal regulations. 

Industry Comment 10: Industry 

commenters disagreed with OSMRE’s 

preliminary finding in its March 28, 

2024, letter to MDEQ, that Montana’s 

use of ‘‘long-term or permanent’’ is too 

vague. The commenters stated that 

Montana’s definition provides more 

context than the Federal regulations, 

which are ‘‘silent’’ on the issue, and that 

Montana added the requirement of 

‘‘long-term or permanent exceedance of 

water quality standards’’ to its 

definition of ‘‘material damage to the 

hydrologic balance’’ to account for 

situations where water exceeded water 

quality standards due to historic mining 

or environmental conditions not caused 

by the permittee. 

OSMRE Response: As stated above, 

the Federal regulations are not ‘‘silent’’ 

on the issue of ‘‘material damage to the 

hydrologic balance.’’ While there is no 

single, consolidated Federal definition 

of the term, the Federal regulations, and 

decades of experience, provide 

sufficient context into what the 

minimum standard for ‘‘material 

damage to the hydrologic balance’’ 

should be. For further discussion of this 

issue, please see Section III(A). 

Industry Comment 11: Industry 

commenters stated that Montana’s 

omission of the term ‘‘facilities’’ from its 

definition of ‘‘material damage’’ with 

respect to subsidence seems to be a 

mistake and that there is no basis to 

deny the entire section due to the 

omission of a single word. They 

suggested that the severability clause 

was a reason not to deny the entire 

section for the omission of this one 

word. 

OSMRE Response: Please see our 

discussion of the omission of the word 

‘‘facilities’’ in the proposed definition of 

‘‘material damage’’ with respect to 

subsidence in Section III(C). We cannot 

verify that the omission of this term was 

a mistake as Montana had not provided 

any clarification about the omission, 

and we disagree that the omission of a 

single word cannot be a basis to deny 

an entire section. As discussed in 

Section III(C), the omission of 

‘‘facilities’’ from the definition makes 

the entire definition inconsistent with 

the Federal regulations, which means 

that this section cannot be approved, in 

whole or in part, because of the missing 

critical term. 

Industry Comment 12: Commenters 

stated that Montana’s proposed changes 

to the hydrologic information section 

was intended to clarify who can submit 

the hydrologic information for the 

permit application. A commenter 

clarified their understanding that, 

unlike the Federal regulations at 30 CFR 

780.21(c)(2), Montana’s current 

regulations do not allow the permittee 

to submit the hydrologic information 

themselves; thus, Montana’s proposal 

deletes the hydrologic information 

submittal language to align itself with 

the Federal regulations. The commenter 

explained that the changes cannot be 

reasonably construed to allow permit 

issuance without the gathering of 

hydrologic information; thus, OSMRE 

has no basis to disapprove of the 

proposed changes in this section. 

OSMRE Response: We disagree with 

the commenter’s assessment that the 

changes cannot be reasonably construed 

to allow permit issuances without 

gathering hydrologic information. As 

discussed in Section III(D), we found 

that the plain meaning of the provision 

after deletion did effectually allow 

permit issuance without hydrologic 

information being submitted to the 

regulatory authority. We agree that 

under Montana’s current regulations a 

permittee is not able to submit 

hydrologic information collected by 

themselves to MDEQ, which is a 

standard more stringent than the 

Federal regulations at 30 CFR 

780.21(c)(2). 

Industry Comment 13: This 

commenter stated that the immediate 

effective date in House Bill 576 was a 

valid exercise of the State’s sovereignty. 

The commenter stated that OSMRE’s 

regulations at 30 CFR 732.17(g) are 

contrary to the principles of federalism 

and violate SMCRA. They also maintain 

that 30 U.S.C. 1255(a), which states that 

‘‘no State law or regulation . . . shall be 

superseded by any provision of’ SMCRA 

or its implementing regulations . . . 

except insofar as such State law or 

regulation is inconsistent with the 

provisions of this act[,]’’ supports their 

position. The commenter argues that 

under SMCRA, a State coal regulation 

may remain in place until it is found to 

be inconsistent with SMCRA. In support 

of this comment, the commenter cites to 

Bragg v. W.VA. Coal Ass’n, 248 F.3d 

275, 295 (4th Cir. 2001), and the Tenth 

Amendment to the U.S. Constitution. 

OSMRE Response: Please see Section 

III(E) for our discussion on this topic. 

We do not agree that OSMRE’s 

regulations at 30 CFR 732.17(g) violate 

SMCRA or that 30 CFR 732.17(g) goes 


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against the principles of federalism. The 

Supreme Court of the United States 

found that SMCRA does not violate the 

Tenth Amendment. Hodel v. Va. 

Surface Mining and Reclamation Ass’n, 

452 U.S. 264 (1981). And 30 U.S.C. 1255 

does not allow proposed changes to an 

approved State program to go into effect 

before OSMRE reviews those changes to 

determine whether a State law or 

regulation is consistent with the 

provisions of SMCRA. That statute 

confirms that ‘‘[n]o State law or 

regulation . . . which may become 

effective thereafter, shall be superseded 

by any provision of this Act or any 

regulation issued pursuant thereto, 

except insofar as such State law or 

regulation is inconsistent with the 

provisions of this act.’’ 30 U.S.C. 1255(a) 

(emphasis added). The use of ‘‘may’’ in 

combination with the exception that 

changes to a State program must meet 

SMCRA and Federal regulation 

requirements demonstrates that SMCRA 

requires amendments to be approved 

before being effective. 

State Representative Comment 1: A 

member of the Montana State 

Legislature commented that that the 

proposed exception to the ‘‘long-term or 

permanent exceedance of a water 

quality standard outside a permit area’’ 

was intended to protect downstream 

users, as it would require an applicant 

to demonstrate that there would be no 

change to the water quality 

classification for groundwater or 

beneficial use. 

OSMRE Response: We appreciate 

being informed of at least one member 

of the legislature’s intent for the change 

to material damage as it relates to the 

hydrologic balance; however, we must 

first review the plain language of the 

proposed amendment and, as described 

in Section III(A) above, the language of 

this portion of the proposed amendment 

is not in accordance with SMCRA or 

consistent with the Federal regulations. 

As such, we have denied the portion of 

the proposed amendment that would 

have included this phrase. 

State Representative Comment 2: The 

commenter indicated that the 

definitions for ‘‘material damage with 

respect to the alluvial valley floor’’ and 

‘‘material damage with respect to 

subsidence’’ mirror the Federal 

definitions at 30 CFR 701.5. 

OSMRE Response: We agree with the 

comment that the proposed changes to 

‘‘material damage’’ in the context of 

alluvial valley floors substantively 

mirrors the Federal definition at 30 CFR 

701.5; thus, we have approved that 

portion of the proposed amendment. 

Please see Section III(B) for OSMRE’s 

discussion on the topic. We disagree 

with the commenter that the proposed 

changes to ‘‘material damage’’ in the 

context of subsidence mirror the Federal 

definition at § 701.5 because it does not 

include the ‘‘facilities.’’ Therefore, we 

have disapproved that definition. Please 

see Section III(C) for OSMRE’s 

discussion on this topic. 

State Representative Comment 3: 

Similar to Industry Comment 3, the 

commenter explains that the current 

language from section 82–4–222(1)(m) 

that Montana proposes to remove had 

incorrectly implied that MDEQ must 

rely on baseline hydrologic information 

from another State or Federal agency. 

The commenter notes that, in practice, 

MDEQ is solely responsible for 

gathering such information and 

including it in its analysis. The 

commenter considered this change to be 

entirely clerical and not altering 

MDEQ’s current or future practice. 

OSMRE Response: The commenter is 

incorrect that MDEQ is the only agency 

responsible for gathering hydrologic 

information for a permit. Current, 

section 82–4–222(1)(m) requires that 

hydrologic information be ‘‘made 

available from an appropriate federal or 

state agency.’’ This language is 

substantively identical to the Federal 

requirements at 30 CFR 780.21(c). While 

we recognize that MDEQ is an 

appropriate State agency to gather 

baseline hydrologic information and 

may be the primary agency to do so, 

there is nothing in SMCRA or the 

Federal agency to suggest that MDEQ is 

the only appropriate State or Federal 

agency to do so. 

State Representative Comment 4: The 

commenter quoted a portion of the 

EPA’s comment (Administrative Record 

No. MT–042–07) stating that HB 576 

does not appear to impact or alter 

MDEQ’s obligations under the CWA to 

illustrate that the proposed changes to 

‘‘material damage to the hydrologic 

balance’’ would still maintain water 

quality at the same level as pre-mining 

conditions. 

OSMRE Response: OSMRE notes that 

the commenter misinterprets the EPA’s 

comment. As explained below in the 

discussion of EPA’s comments, while 

the EPA did find that the proposed 

amendment would not impact or alter 

MDEQ’s obligations under the CWA, the 

EPA also stated that ‘‘[the revisions] 

likely alter substantive compliance 

requirements for surface and 

underground mines in the context of 

mine permitting in a way that could 

result in negative impacts on water 

quality.’’ (Administrative Record No. 

MT–042–07). The EPA’s comments only 

offer confirmation that MDEQ’s CWA 

obligations would still be required to be 

met under the proposed revisions, but 

that is not dispositive when determining 

whether the proposed revisions are in 

accordance with SMCRA and consistent 

with the Federal SMCRA implementing 

regulations. 

State Representative Comment 5: The 

commenter expressed concern that 

OSMRE held a public hearing on the 

proposed amendment. The commenter 

asserted that, in the spirit of SMCRA’s 

cooperative federalism principles, 

OSMRE should have instead relied on 

the public record created during the 

legislative session to pass HB 576. 

OSMRE Response: OSMRE disagrees 

with this comment. The Federal 

regulations at 30 CFR 732.17(h)(5) 

specify that OSMRE may hold public 

hearings for State program amendments 

and states that comments provided at a 

public hearing will be considered in 

OSMRE’s decision on a program 

amendment. Thus, OSMRE’s actions 

were consistent with Federal law. 

MDEQ Comments. On April 26, 2024, 

MDEQ sent us a response to our March 

28, 2024, letter. (Administrative Record 

No. MT–042–35). MDEQ stated that 

because the proposed amendment was 

the result of legislative action, MDEQ is 

unable to submit any revision to address 

the concerns OSMRE identified and that 

MDEQ understood that OSMRE intends 

to proceed, as necessary, with the 

publication of its decision in the 

Federal Register. 

MDEQ commented that it found 

OSMRE’s proposed finding about 

Montana’s proposed definition of 

‘‘material damage to the hydrologic 

balance’’ to be inconsistent with 

OSMRE’s application of the term in the 

Federal program. MDEQ specifically 

points to a 2016 CHIA for the Peabody 

Western Coal Company—Kayenta 

Mining Complex, and OSMRE’s 

statement within the CHIA that ‘‘[t]he 

term ‘material damage to the hydrologic 

balance’ may have various 

interpretations’’ and that ‘‘[t]he 

Permanent Program Regulations do not 

define ‘material damage’ but do define 

‘hydrologic balance’ as ‘the relationship 

between the * * * water inflow to, 

water outflow from, and water storage in 

a hydrologic unit, such as a drainage 

basin, aquifer, soil zone, lake, or 

reservoir’ (30 CFR 701.5).’’ 

MDEQ states that OSMRE has not 

produced additional national guidance 

on CHIAs and the definition of 

‘‘material damage to the hydrologic 

balance’’ since this draft document. 

They state that the definition of 

‘‘material damage to the hydrologic 

balance’’ remains at the discretion of the 

regulatory authority, and OSMRE has 


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created site specific criteria in their 

CHIAs. 

Finally, MDEQ states that ‘‘material 

damage to the hydrologic balance’’ 

remains undefined in SMCRA since the 

Congressional disapproval of the Stream 

Protection Rule in 2017. MDEQ states 

further that, because of that lack of a 

definition, OSMRE’s rejection of a more 

stringent program amendment request 

from MDEQ is contrary to OSMRE’s 

actual implementation of this issue. 

OSMRE Response: OSMRE disagrees 

with MDEQ’s assertion that our findings 

on the proposed definition of ‘‘material 

damage to the hydrologic balance’’ are 

inconsistent with our use of the term in 

the Federal program. MDEQ is correct 

that OSMRE has not published a 

definition of the term in the Federal 

regulations and that OSMRE has stated 

that the term does not have fixed criteria 

since ‘‘material damage will vary from 

area to area and operation to operation,’’ 

(see 48 FR 43973, Sept. 26, 1983). The 

lack of a definition for ‘‘material damage 

to the hydrologic balance’’ in the 

Federal regulations, however, does not 

mean that any definition will be 

acceptable. SMCRA and the Federal 

regulations require that a State program 

must have rules and regulations that are 

in accordance with SMCRA and 

consistent with the Federal regulations. 

30 CFR 730.5. This analysis requires a 

comprehensive comparison between the 

entire State and Federal programs. 

While the Federal regulations do not 

have an official definition for ‘‘material 

damage to the hydrologic balance,’’ that 

term is used multiple times throughout 

the Federal regulations. Where the term 

appears in the Federal regulations and 

how it affects operations are guidelines 

for our assessment of the Montana 

program’s proposed definition. Please 

see Section III(A) to see our detailed 

assessment of this issue. 

Montana Department of Justice 

(MDOJ). On May 10, 2024, MDOJ sent a 

letter to OSMRE in response to our 

March 28, 2024, letter to MDEQ. MDOJ 

offered their support for comments 

provided by MDEQ and industry in 

response to our March 28, 2024, letter. 

(Administrative No. MT–042–35 and 

MT–042–36.). Next, MDOJ urged 

OSMRE to reconsider its preliminary 

analysis and to promptly approve the 

MT–042–FOR. MDOJ pointed 

specifically to the discussion in 

comments submitted by industry that 

alleged that OSMRE’s concerns with the 

Montana amendment ignore the text of 

governing Federal statutory and 

regulatory provisions and that OSMRE’s 

decision deviates from prior OSMRE 

decisions. Finally, MDOJ commented 

that OSMRE must give effect to the bill’s 

severability clause by approving the 

remaining sections with which OSMRE 

did not find any issues. 

OSMRE Response: For our discussion 

on the MDEQ letter and industry 

comments, please see our respective 

responses above. As for the severability 

clause, OSMRE structured its approval 

and disapproval of the provisions in the 

proposed amendment to accommodate 

the severability clause and allow 

individual sections that are found to be 

consistent with SMCRA and as effective 

as the Federal regulations to be effective 

despite the disapproval of other 

proposed sections. 

Federal Agency Comments 

On June 6, 2023, under 30 CFR 

732.17(h)(11)(i) and section 503(b) of 

SMCRA, we requested comments on the 

amendment from various Federal 

agencies that have an actual or potential 

interest in the Montana program 

(Administrative Record No. MT–042– 

05). On August 28, 2023, following the 

extension of the comment period for a 

further 60 days, we sent an additional 

request for comments on the 

amendment (Administrative Record No. 

MT–042–13). We did not receive any 

comments. 

EPA Concurrence and Comments 

Under 30 CFR 732.17(h)(11)(ii), we 

are required to get a written concurrence 

from EPA for those provisions of the 

program amendment that relate to air or 

water quality standards issued under 

the authority of the CWA (33 U.S.C. 

1251 et seq.) or the Clean Air Act (42 

U.S.C. 7401 et seq.). On June 6, 2023, 

under 30 CFR 732.17(h)(11)(i), we 

requested comments from the EPA on 

the amendment (Administrative Record 

No. MT–042–05). The EPA submitted its 

comment to us on August 1, 2023. 

(Administrative Record No. MT–042– 

07). On August 28, 2023, following the 

extension of the comment period for a 

further 60 days, we sent another request 

for comments on the Amendment 

(Administrative Record No. MT–042– 

13). No additional EPA comments were 

submitted in response to the extended 

comment period. 

In its comment, the EPA interpreted 

Montana’s proposed changes to MCA 

sec. 82–4–203(32)(a)(ii), ‘‘material 

damage to the hydrologic balance,’’ to 

mean a violation of a WQS alone is no 

longer ‘‘material damage.’’ Instead, any 

material damage would only be a longterm or permanent exceedances of a 

WQS. 

Despite the change in definition, the 

EPA found that they did not have the 

authority and duty to approve or 

disapprove the change, as it is not 

deemed a new or revised WQS under 

section 303(c)(3) of the CWA. But the 

EPA did comment that, while the 

proposed changes are likely not WQS, 

they do likely alter substantive 

compliance requirements for coal mines 

in a way that could result in negative 

impacts on water quality. 

The EPA ended its comment by 

stating that the proposed changes would 

likely not impact or alter MDEQ’s 

obligations under the CWA. EPAapproved WQS would remain in effect 

in Montana, despite the language 

deletion here, and MDEQ must continue 

to implement those WQS programs 

despite the deletion. 

OSMRE Response: We appreciate 

EPAs comments and agree that the 

proposed changes would likely 

substantively and negatively alter 

compliance requirements and water 

quality, but that MDEQ would still be 

obliged to comply with all CWA 

requirements because section 702 of 

SMCRA provides that nothing in 

SMCRA can be construed as 

superseding, amending, modifying, or 

repealing Federal laws related to water 

quality. 30 U.S.C. 1292(3). For the 

reasons explained in our response in 

Section III(A), we are denying 

Montana’s proposed change to its 

current definition of ‘‘material damage 

to the hydrologic balance.’’ 

State Historical Preservation Officer 

(SHPO) and the Advisory Council on 

Historic Preservation (ACHP) 

Under 30 CFR 732.17(h)(4), we are 

required to request comments from the 

SHPO and ACHP on amendments that 

may have an effect on historic 

properties. On June 6, 2023, we 

requested comments on the amendment 

(Administrative Record No. MT–042– 

03, and MT–042–04). On August 28, 

2023, following the extension of the 

comment period for a further 60 days, 

we sent another request for comments 

on the amendment (Administrative 

Record No. MT–042–11, and MT–042– 

12). The Montana SHPO responded on 

June 15, 2023, to say they have no 

comment and the ACHP did not 

comment (Administrative Record No. 

MT–042–06). 

V. OSMRE’s Decision 

Based on the above findings, we are 

approving in part and disapproving in 

part Montana’s proposed amendment 

(MT–042–FOR) sent to us on June 1, 

2023 (Administrative Record No. MT– 

042–01). 

To implement this decision, we are 

amending the Federal regulations, at 30 

CFR part 926, that codify decisions 

concerning the Montana program. In 


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3686 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 

accordance with the Administrative 

Procedure Act, this rule will take effect 

30 days after the date of publication. 

Section 503(a) of SMCRA requires that 

the State’s program demonstrate that the 

State has the capability of carrying out 

the provisions of the Act and meeting its 

purposes. SMCRA requires that a State 

program must have rules and 

regulations that are in accordance with 

SMCRA and consistent with Federal 

regulations. 

VI. Procedural Determinations 

Executive Order 12630—Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

This rule would not effect a taking of 

private property or otherwise have 

taking implications that would result in 

public property being taken for 

government use without just 

compensation under the law. Therefore, 

a takings implication assessment is not 

required. This determination is based on 

an analysis of the corresponding Federal 

regulations. 

Executive Orders 12866—Regulatory 

Planning and Review and 13563— 

Improving Regulation and Regulatory 

Review 

Executive Order 12866, as amended 

by Executive Order 14094, provides that 

the Office of Information and Regulatory 

Affairs in the Office of Management and 

Budget (OMB) will review all significant 

rules. Pursuant to OMB guidance, dated 

October 12, 1993 (OMB Memo M–94–3), 

the approval of State program and/or 

plan amendments is exempted from 

OMB review under Executive Order 

12866. Executive Order 13563, which 

reaffirms and supplements Executive 

Order 12866, retains this exemption. 

Executive Order 13771—Reducing 

Regulation and Controlling Regulatory 

Costs 

State program and/or plan 

amendments are not regulatory actions 

under Executive Order 13771 because 

they are exempt from review under 

Executive Order 12866. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

reviewed this rule as required by 

Section 3 of Executive Order 12988. The 

Department determined that this 

Federal Register document meets the 

criteria of section 3 of Executive Order 

12988, which is intended to ensure that 

the agency review proposed regulations 

to eliminate drafting errors and 

ambiguity; that the agency write its 

regulations to minimize litigation; and 

that the agency’s regulations provide a 

clear legal standard for affected conduct 

rather than a general standard, and 

promote simplification and burden 

reduction. Because Section 3 focuses on 

the quality of Federal regulations, the 

Department limited its review under 

this Executive Order to the quality of 

this Federal Register document and to 

changes to the Federal regulations. The 

review under this Executive Order did 

not extend to the language of the State 

regulatory program amendment that 

Montana drafted. 

Executive Order 13132—Federalism 

This rule has potential Federalism 

implications, as defined under section 

1(a) of Executive Order 13132. 

Executive Order 13132 directs agencies 

to ‘‘grant the States the maximum 

administrative discretion possible’’ with 

respect to Federal statutes and 

regulations administered by the States. 

Montana, through its approved 

regulatory program, implements and 

administers SMCRA and its 

implementing regulations at the State 

level. This rule approves an amendment 

to the Montana program submitted and 

drafted by the State, and thus is 

consistent with the direction to provide 

maximum administrative discretion to 

States. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

The Department of the Interior strives 

to strengthen its government-togovernment relationship with Tribes 

through a commitment to consultation 

with Tribes and recognition of their 

right to self-governance and tribal 

sovereignty. We have evaluated this rule 

under the Department’s consultation 

policy and under the criteria in 

Executive Order 13175 and have 

determined that it has no substantial 

direct effects on federally recognized 

Tribes or on the distribution of power 

and responsibilities between the Federal 

government and Tribes. Therefore, 

consultation under the Department’s 

tribal consultation policy is not 

required. The basis for this 

determination is that our decision is on 

the Montana State program that does not 

include the regulation of Indian lands or 

regulation of activities on Indian lands 

as that term is defined in 30 U.S.C. 

1291(9). Indian lands are regulated 

independently under the applicable, 

approved Federal Indian lands program, 

with the exception of the Crow Tribe’s 

‘‘Ceded Strip’’ in Montana, which 

represents a unique and special 

situation because under the terms of the 

MOU, the Department of the Interior 

and Montana agreed to coordinate the 

administration of applicable surface 

mining requirements in the Crow Ceded 

Strip. However, as we are disapproving 

the majority of the substantive changes 

made by this proposed amendment, our 

action will not have any significant 

effects on the regulation of surface coal 

mining operations within the Crow 

Ceded Strip. The Department’s 

consultation policy also acknowledges 

that our rules may have Tribal 

implications where the State proposing 

the amendment encompasses ancestral 

lands in areas with mineable coal. We 

are currently working to identify and 

engage appropriate Tribal stakeholders 

to devise a constructive approach for 

consulting on these amendments. 

Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 requires 

agencies to prepare a Statement of 

Energy Effects for a rulemaking that is 

(1) considered significant under 

Executive Order 12866, and (2) likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

Because this rule is exempt from review 

under Executive Order 12866 and is not 

a significant energy action under the 

definition in Executive Order 13211, a 

statement of energy effects is not 

required. 

Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This rule is not subject to Executive 

Order 13045 because this is not an 

economically significant regulatory 

action as defined by Executive Order 

12866, and this action does not address 

environmental health or safety risks 

disproportionately affecting children. 

National Environmental Policy Act 

Consistent with sections 501(a) and 

702(d) of SMCRA (30 U.S.C. 1251(a) and 

1292(d), respectively) and the U.S. 

Department of the Interior Departmental 

Manual, part 516, section 13.5(A), a 

State program amendment is a not major 

Federal action within the meaning of 

section 102(2)(C) of the National 

Environmental Policy Act (42 U.S.C. 

4332(2)(C). 

National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act (15 U.S.C. 3701 et seq.) directs 

OSMRE to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 


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with applicable law or otherwise 

impractical. (OMB Circular A–119 at p. 

14). This action is not subject to the 

requirements of section 12(d) of the 

NTTAA because application of those 

requirements would be inconsistent 

with SMCRA. 

Paperwork Reduction Act 

This rule does not include requests 

and requirements of an individual, 

partnership, or corporation to obtain 

information and report it to a Federal 

agency. As this rule does not contain 

information collection requirements, a 

submission to OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) is not required. 

Regulatory Flexibility Act 

This rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). The State submittal, which is 

the subject of this rule, is based on 

corresponding Federal regulations for 

which an economic analysis was 

prepared, and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon the data and assumptions for the 

corresponding Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: (a) does not have an annual 

effect on the economy of $100 million; 

(b) will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions; and (c) does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. This 

determination is based on an analysis of 

the corresponding Federal regulations, 

which were determined not to 

constitute a major rule. 

Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

Tribal governments, or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local, or Tribal 

governments or the private sector. This 

determination is based on an analysis of 

the corresponding Federal regulations, 

which were determined not to impose 

an unfunded mandate. Therefore, a 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

List of Subjects in 30 CFR Part 926 

State regulatory program approval, 

State program provisions and 

amendments not approved, Approval of 

Montana program amendments, and 

State-federal cooperative agreement. 

David A. Berry, 

Regional Director, Unified Regions, 5, 7–11. 

For the reasons set out in the 

preamble, 30 CFR part 926 is amended 

as set forth below: 

PART 926—Montana 

■ 1. The authority citation for part 926 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. Amend § 926.12 by adding 

paragraph (c) to read as follows: 

§ 926.12 State program provisions and 

amendments not approved. 

* * * * * 

(c) The following portions of the 

amendment submitted by letter dated 

June 1, 2023, Administrative Record No. 

MT–042–01, which proposed changes to 

the Montana approved program as a 

result of the Montana Legislature’s 2023 

passage of a House Bill (HB 576) are not 

approved: MCA 82–4–203(32)(a) to the 

extent that it changed the prior 

definition of material damage as it 

relates to the hydrologic balance; MCA 

82–4–203(32)(c) definition of material 

damage as it relates to subsidence; MCA 

82–4–222(1)(m) hydrologic information 

requirements. 

■ 3. Amend § 926.15 in the table by 

adding a new entry in chronological 

order by ‘‘Date of final publication’’ to 

read as follows: 

§ 926.15 Approval of Montana regulatory 

program amendments. 

* * * * * 

Original amendment 

submission date 

Date of final 

publication Citation/description 

June 1, 2023 ................. January 15, 2025 ........ MCA 82–4–203(32)(a) existing definition of material damage with respect to protection of the 

hydrologic balance recodified; MCA 82–4–203(32)(b) adding a definition of material damage with respect to an alluvial valley floor. 

[FR Doc. 2025–00333 Filed 1–14–25; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE TREASURY 

Office of Foreign Assets Control 

31 CFR Parts 501, 510, 525, 526, 535, 

536, 539, 542, 544, 546, 547, 548, 549, 

551, 552, 553, 555, 558, 560, 561, 566, 

570, 576, 578, 583, 584, 588, 589, 590, 

592, 594, 597, and 598 

Inflation Adjustment of Civil Monetary 

Penalties 

AGENCY: Office of Foreign Assets 

Control, Treasury. 

ACTION: Final rule. 

SUMMARY: The Department of the 

Treasury’s Office of Foreign Assets 

Control (OFAC) is issuing this final rule 

to adjust certain civil monetary 

penalties for inflation pursuant to the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended by 

the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015. 

DATES: This rule is effective January 15, 

2025. 

FOR FURTHER INFORMATION CONTACT: 

OFAC: Assistant Director for Licensing, 

202–622–2480; Assistant Director for 

Regulatory Affairs, 202–622–4855; 


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