784.28—Surface activities in or adjacent to perennial or intermittent streams.

(a) Applicability. (1) In general. Except as otherwise provided in paragraph (a)(2) of this section, this section applies to underground mining permit applications that propose to conduct surface activities in perennial or intermittent streams or on the surface of lands within 100 feet, measured horizontally, of perennial or intermittent streams.

(2) Exceptions. (i) Coal preparation plants not located within the permit area of a mine. This section does not apply to applications under § 785.21 of this chapter for coal preparation plants that are not located within the permit area of a mine.

(ii) Stream-channel diversions. Paragraphs (b) through (e) of this section do not apply to diversions of perennial or intermittent streams, which are governed by § 784.29 of this part and § 817.43 of this chapter.

(b) Application requirements for activities in a perennial or intermittent stream. If you propose to conduct one or more of the activities listed in paragraphs (b)(2) through (b)(4) of § 817.57 of this chapter in a perennial or intermittent stream, your application must demonstrate that—

(1) Avoiding disturbance of the stream is not reasonably possible; and

(2) The proposed activities will comply with all applicable requirements in paragraphs (b) and (c) of § 817.57 of this chapter.

(c) Application requirements for surface activities within 100 feet of a perennial or intermittent stream. If you propose to conduct surface activities within 100 feet of a perennial or intermittent stream, but not in the stream itself, and those activities would occur on the surface of land subject to the buffer requirement of § 817.57(a)(1) of this chapter, your application must—

(1) Demonstrate that avoiding disturbance of land within 100 feet of the stream either is not reasonably possible or is not necessary to meet the fish and wildlife and hydrologic balance protection requirements of the regulatory program;

(2) Identify any lesser buffer that you propose to implement instead of maintaining a 100-foot undisturbed buffer between surface activities and the perennial or intermittent stream; and

(3) Explain how the lesser buffer, together with any other protective measures that you propose to implement, constitute the best technology currently available to—

(i) Prevent the contribution of additional suspended solids to streamflow or runoff outside the permit area to the extent possible, as required by §§ 784.14(g) and 817.41(d)(1) of this chapter; and

(ii) Minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible, as required by §§ 784.21(b) and 817.97(a) of this chapter.

(d) Approval requirements for activities in a perennial or intermittent stream. Before approving any surface activities in a perennial or intermittent stream, the regulatory authority must—

(1) Find in writing that—

(i) Avoiding disturbance of the stream is not reasonably possible; and

(ii) The plans submitted with the application meet all applicable requirements in paragraphs (b) and (c) of § 817.57 of this chapter.

(2) Include a permit condition requiring a demonstration of compliance with the Clean Water Act in the manner specified in § 817.57(a)(2) of this chapter before the permittee may conduct any activities in a perennial or intermittent stream that require authorization or certification under the Clean Water Act.

(e) Approval requirements for surface activities within 100 feet of a perennial or intermittent stream. Before approving any surface activities that would disturb the surface of land subject to the buffer requirement of § 817.57(a)(1) of this chapter, the regulatory authority must find in writing that—

(1) Avoiding disturbance of the surface of land within 100 feet of the stream either is not reasonably possible or is not necessary to meet the fish and wildlife and hydrologic balance protection requirements of the regulatory program; and

(2) The measures proposed under paragraphs (c)(2) and (c)(3) of this section constitute the best technology currently available to—

(i) Prevent the contribution of additional suspended solids to streamflow or runoff outside the permit area to the extent possible, as required by §§ 784.14(g) and 817.41(d)(1) of this chapter; and

(ii) Minimize disturbances and adverse impacts on fish, wildlife, and related environmental values to the extent possible, as required by §§ 784.21(b) and 817.97(a) of this chapter.

(f) Relationship to the Clean Water Act. (1) In all cases, your application must identify the authorizations and certifications that you anticipate will be needed under sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps that you have taken or will take to procure those authorizations and certifications.

(2) The regulatory authority will process your application and may issue the permit before you obtain all necessary authorizations and certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., provided your application meets all applicable requirements of subchapter G of this chapter. However, issuance of a permit does not authorize you to initiate any activities for which Clean Water Act authorization or certification is required. Information submitted and analyses conducted under subchapter G of this chapter may inform the agency responsible for authorizations and certifications under sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, but they are not a substitute for the reviews, authorizations, and certifications required under those sections of the Clean Water Act.

Code of Federal Regulations

[73 FR 75881, Dec. 12, 2008]

CFR

784.28—Surface activities in or adjacent to perennial or intermittent streams.

Code of Federal Regulations