U. S. Department of the Interior        
Office of Surface Mining
                                                                                                                                                                                  
For release: May 14, 1999                                       Jerry Childress (202) 208-2719
                                                                Jchildre@osmre.gov

        OSM DISAPPROVES WEST VIRGINIA PROPOSED AMENDMENT 
      FOR "FISH AND WILDLIFE HABITAT AND RECREATION LANDS"  
       AS POSTMINING LAND USE FOR MOUNTAINTOP REMOVAL MINES

Kathy Karpan, Director of the Interior Department's Office of Surface Mining Reclamation
and Enforcement (OSM), today announced the disapproval of an amendment proposed for West
Virginia's surface coal mining regulatory  program.  

The West Virginia Division of Environmental Protection (WVDEP) requested in 1997 that
OSM approve a proposed amendment to the West Virginia Surface Coal Mining and Reclamation
Act as part of the West Virginia permanent regulatory program. That amendment would have
permitted the postmining land use of "fish and wildlife habitat and recreation lands" in order to
justify the approval of  a variance from restoring mountaintop removal operations to approximate
original contour (AOC).  Subsequent to filing the program amendment, OSM, working with
WVDEP, initiated an oversight review of mountaintop mining and permitting practices.  As a result
of that review, West Virginia discontinued using "fish and wildlife" as a justification for AOC
variances in June 1998.  Because of the review, OSM delayed making a final decision on the
program amendment.  OSM explained the reasons for its decision in a Federal Register notice dated
May 14, 1999.

Mountaintop removal operations remove an entire coal seam or seams running through the
upper portion of a mountain, ridge or hill leaving a level plateau or gently rolling contour.  The
Surface Mining Control and Reclamation Act (SMCRA) requires mine operators to restore
mountaintop removal operations to postmining land uses that are found to constitute an equal or
better economic or public use of the affected land.  OSM disapproved the West Virginia amendment
because SMCRA does not specifically authorize "fish and wildlife habitat and recreation lands" as
an allowable postmining land use for a mountaintop removal operation with a variance from AOC.   

The land use category of "fish and wildlife habitat" is defined by Federal regulations as land
"dedicated wholly or partially to the production, protection or management of species of fish or
wildlife."  OSM found that a variance from achieving AOC is not needed for the management of fish
or wildlife, because fish and wildlife habitats do not require the flat or rolling terrain created by
mountaintop removal operations to be successful.  Therefore, "fish and wildlife habitat" is not
authorized as a postmining land use that qualifies for an AOC variance for mountaintop removal
operations.

SMCRA authorizes "public facilities (including recreation facilities)" as a postmining land
use which qualifies for the variance from AOC for mountaintop removal mining.   Recreation, as
defined in SMCRA, means land used for public or private leisure-time activities, including
developed recreation facilities.  However, to qualify for the AOC variance, the "developed
recreation facilities" must be available for public use.  A purely private postmining land use does not
qualify under SMCRA for a mountaintop removal AOC variance.  The State could allow the
creation of fish and wildlife areas provided they meet the criteria of "public facility (including
recreational facilities) use."  At a minimum, these areas would have to be open to the public and
contain structures or other  developments for recreational or other public uses.
     
For more information regarding the West Virginia program, or questions or media inquiries,
contact: Al Klein, OSM Appalachian Regional Director on (412) 937-2828.


                              -OSM-