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Federal Register /Vol. 60, No. 62 /Friday, March 31, 1995 /Rules and Regulations 16733 <br />Indian lands, are required;to comply <br />with these provisions;for operations <br />conducted after October 24~. 1992.'- <br />_ _ ~ -The majority of comniente{s~agreed <br />. ~ that the provisron~to.requue the- ; <br />. Act, clearly-noted that these provisions dwellings and related structurest~ ' <br />;=were not to "prohibit, or interrupt `However, unless the~anticipateddamage <br />.,underground coaLmining operations." -: would consu[ute.athreat to healtll'oc. <br />r:WithqutYhe compensation option: the. ~ ,: '. safety;_the permittee would no[have to <br />wcoynimehter asserted that operations _. <br />~ ~ "take minuntzation measures~ifahe <br />-..;:would 6e~forcedao cease~operating~if .": ",:permittee demonstrates thatythe.cost of <br />er_ `.:"they couldn'Yreplace the water ~. - <br />" <br />'- ; ~ minimization,w-ouldexceed ~the~cosY of <br />supplies. OSM does not agree. The <br />' repair, and would"riot constitute s thtea <br />affected by undergroundactivities`is -~~ <br />necessary to implement the provision of <br />newSMCRAsection720(a)(Z).. ,. <br />While commenters support the . " -_ <br />adoption of the proposed rule; they -~ <br />maintain that it is not necessary to <br />monitor each water well in order fo <br />establish that subsidence has impacted <br />a water supply well. OSM agrees that in <br />many instances it may not be necessary <br />to monitor each well. The location and <br />-terms of the Energy Policy Ac[ <br />unequivocally require replacement. <br />""-Further, OSM does not anticipate that <br />underground mining operations will be <br />`unable to comply with this statutory <br />mandate. For example, if the permittee <br />is unable to restore a spring or aquifer, <br />the permittee should still be able to <br />provide water from an alternative <br />source, such as a public water supply, <br />or by pipeline from another location. <br />[o health and'safety. The permittee is -- <br />obliged [o take minimizatign,measures <br />[fiat are technologically and ' ' -- <br />economically feasible. Upon written <br />consent of the owners of such structures <br />or facilities, no minimization measures <br />would be required. <br />Section 2504(a)(2)(D) of the Energy <br />Policy Act provides that any rulemaking <br />regarding protection of natural gas or <br />petroleum pipelines from subsidence <br />frequency of well monitoring will be <br /> <br />addressed on a case-by-case basis <br />Section 817.121 (a)-Subsidence Control damage is to be done after the study <br /> <br />which OSM is mandated to perform <br />pursuant to existing paragraphs .. OSM is adopting paragraph pursuant to paragraph 2504(a)(2)(A) of <br />784.14(h) (1) and 817.41(c). <br />~ 817.121(a)(I) as proposed. The the Energy Policy Act. Some <br />A commenter asked for clarification requirement provides [hat the permittee commenters express concern [hat <br />_ that this provision would not in any must eitheradopt measures consistent proposed paragraph 817.121 (a) (2) <br />way affect property rights under existing with known technology which prevent prejudged this issue, while others <br />state water laws consistent with subsidence causing material damage [o support the rule because they believe it <br />_-" paragraph 717(a)-Anothercommenter - the-extent technologically and i does impose additional subsidence <br />further recommended that OSM amend economically feasible, maximize min4 damage protection for pipelines. Since <br />the provision to require that water rights stability, and maintain the value and OSM has not yet completed the study <br />regarding the affected well or spring be reasonably foreseeable use of surface mandated by the Ehergy Policy Act, <br />approved by the State Engineer or lands: oradopt mining technology OSM does not intend [his rvlemaking to <br />otherwise be recognized under State_ _ _ which.provides for planned subsidence affect, interpret, or clarify the status quo <br />law. OSM points out that nothing in this in a predictable and controlled manner. regarding subsidence control - <br />requirement is intended to create~an ~ This language is not intended to be a requirements for natural gas or <br />exception to section 717(a) of SMCRA. change from the rules promulgated in petroleum transmission pipelines. <br />Section 717(a) requires deference to 1983, (See 48 FR 24652, June 1, 1983), branch and gathering lines, or <br />___,_ -State water law on questions of water _ _ <br />~ and relies on the basis and purpose <br />- <br />- distrbption mains. For these and other <br />- <br />allocation and use. OSM interprets stated in 2983. This rulemaking makes reasons discussed below, OSM has <br />- section 720 and the implementing toles minor editing changes intended to more decided to limit 817.121(a) (2) to those _ . <br />..as not requiring the replacement of cleazly reflect the meaning of the structures protected under the Energy- ... <br />water supplies to the extent existing rule. Thus, under this Policy Ac[, namely noncommercial <br />_ underground mining activities consume provision,_as an alternative to adopting buildings and occupied residential _' <br />_ _ _ <br />or legitimately use the water supply measures consistent with known _ <br />dwellings and related structures. <br />'~-- under a senior water right~determined technology which prevents subsidence Commenters claim that the proposed ~ ~ ,- - <br />underapplicable State law. See In re causing material damage to the extent provision chat required permittees to <br />Permanent Surface Mining Regulation technologically and economically ~ minimize damage frdm planned - - <br />Litigation II, Round III, 620 F. Supp. feasible, an permittee may adopt mining subsidence operations was vague and <br />..1519..1525 (D.C.D.C. 1985). However, technology which provides for planned unworkable since little guidance was , <br />OSM believes [hat section 717(a) subsidence in a predictable and provided as to what minimizing damage <br />concerns rights under State water law to convolled manner. would entail. Commenters argue that <br />consumption or use of water, and was OSM is adopting paragraph OSM's contention that the new tole <br />not intended to address destruction or 817.121 (a)(2) with modification from would clarify an unresolved issue over <br />~ damage of the source of water, or the proposed rule. Under the proposed the meaning of paragraph 817.121(a) , <br />contamination of the water supply. rule, if a permittee employed mining was misguided, since the proposed rule <br />Thus, OSM anticipates that technology which provides for planned did little [o clarify the issue and would <br />underground mining activities which subsidence in a predictable and likely result in even more litigation. <br />cause destruction or damage of a water convolled manner, the permittee would Commenters also allege that, rather than <br />supply source, or contamination of a have been required to take necessary clarify [he obligation of planned <br />water supply, would be subject to the and prudent measures, consistent with subsidence operations concerning <br />replacement requirements of section 720 the mining method employed, [o subsidence damage, the proposed rule <br />even if the permittee possessed senior minimize material damage to surface would effectively remove the exception <br />water rights. lands, structures or facilities [o [he granted in SMCRA for planned <br />A commenter recommended that extent technologically and economically subsidence. These commenters <br />compensation be available as an option <br />' feasible. Under the final rule, the questioned the effect of OSM's proposed <br />I <br />for those limited circumstances where <br />responsibility to minimize damage is I <br />provision on the planned subsidence <br />an impacted supply can't be restored. limited to structures listed in the Energy exception at section 516(b) (1) of SMCRA <br />The commenter went on to note that Policy Act, namely noncommercial if an operator using planned subsidence <br />/ Congress, in enacting the Energy Policy buildings and occupied residential must adopt and deploy the same - <br />t <br /> <br />