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20 ELR 21175 | Environmental Law Reporter | copyright © 1990 | All rights reserved National Wildlife Federation v. LujanNos. 88-0208; 88-3200; 88-3225 (D.D.C. June 8, 1990)In a continuing challenge to Department of the Interior (DOI) regulations implementing the Surface Mining Control and Reclamation Act (SMCRA), the court generally upholds DOI's rules on revegetation, groundwater recharge capacity in surface lands above underground mines, and fish and wildlife in mining areas. The court first upholds all the revegetation rules promulgated by DOI relating to performance standards that surface mine operators must meet for restoring plant life on land that has been mined. The revegetation performance standards require surface coal mine operators to establish a diverse, effective, and permanent vegetative cover equal in extent to natural vegetation. This process, referred to as augmentation, involves seeding, fertilizing, irrigating, and other actions necessary to provide successful revegetation. A related standard requires surface operators to assume responsibility for successful revegetation for a period of five years after the last year of augmentation, except in areas of the country with less than 26 inches of annual precipitation, in which case the period is 10 years. Environmental and industry plaintiffs challenge DOI's distinction between selective husbandry practices, SMCRA jargon for maintenance and upkeep activities to ensure the success of revegetation, and augmentation. Under DOI's performance standards, once augmentation is complete and the responsibility period begins, subsequent augmentation requires the responsibility period to start over. Moreover, the standards provide that although primary responsibility for determining what are normal husbandry practices rests with the states, the Secretary of the Interior has review authority to approve or deny a state's husbandry practice for purposes of restarting the responsibility period. Since the Secretary has the power and discretion to choose between conflicting comments in deciding particular states' normal husbandry practices, the court will not second-guess the Secretary's choice, provided it is not inherently irrational or devoid of support in the record. The court next holds that these standards properly empower the Secretary to prescribe minimum standards for state programs and to approve amendments to those programs, and does not disrupt the federalist approach Congress wrote into SMCRA. Congress wanted to accommodate local and regional differences in husbandry practices standards, but also wanted to ensure that there was a floor beneath which standards could not drop. The Secretary's decision to require his approval of normal husbandry practices is a sound way to blend local differences with minimum national standards. The court next holds that the performance standards requiring state forestry and wildlife agencies to approve minimum stocking and planting arrangements for revegetation of lands for which postmining use is planned to be wildlife habitat, recreation, and similar activities do not arrogate to the federal government power that Congress wanted the states to exercise, and are reasonable. Under the previous standard, only consultation with the state agencies was required. Moreover, the court finds that the rule does not upset any federalist balance that Congress sought to strike, nor delegate to states some authority that Congress reserved to the federal executive. In essence, the Secretary has merely declined to set national stocking and planting arrangements in recognition of local diversity. There is no reason to suppose that a state agency with expertise in mining coal has special knowledge of normal husbandry practices for wildlife habitat. To the contrary, the rule prudently requires the state agency with knowledge and experience in this field to approve planting and stocking arrangements to ensure that the wildlife habitat or forested land will become what has been planned. The court next upholds the DOI's replanting standards against environmentalists' claims that the replanting of trees during the responsibility period is an augmentative process that should restart the period of responsibility. Under the standards, the measure of success for any plan requires that 80 percent of the trees and shrubs must have been in place for 60 percent of the minimum period of responsibility. Environmentalists claim that such a rule would allow an operator to completely replant land during the first two years of the responsibility period. The court holds that the rule is not irrational or in violation of the law, since its purpose is to ensure that the trees and shrubs have a demonstrated staying power. In rejecting plaintiffs' request to order the Secretary to promulgate a national rule providing that replanting by an operator would restart the responsibility period, the court defers to the reasoned choice of the Secretary of the Interior. Provided the Secretary has support in the record, the court may not sort through plaintiffs' and DOI's arguments and pick the winner. The court also holds that the Secretary's rule requiring that success standards be met in any two years other than the first is not arbitrary or capricious, even though the comparable rule for land with a 10-year responsibility period requires that success standards be met for the final two years. The Secretary properly considered the vagaries of the weather when dealing with the long-term health of plants. Moreover, the court holds that the Secretary has the discretion to retain one rule unchanged, while making a change in another, albeit similar rule. Congress did not preclude the Secretary from accounting for the differences in weather by any means other than the length of the period of responsibility. The court next holds that the Secretary's decision to delete any requirement for underground mine operators to restore recharge capacity was reasonable and within his discretion. SMCRA contains no reference to restoring recharge capacity and the burden cannot be on the Secretary to justify changing such a rule unless it was first a lawful dictate. The court accepts the explanation that geologic and technical considerations do not support promulgating such a rule. Finally, the court holds that the Secretary's revisions to the rules on what a coal mine operator must include about fish and wildlife in an application for a mining permit do not substantively change the old rules and were not an abuse of the Secretary's discretion. The environmental plaintiffs challenge the elimination in the revised rules of the requirement of a study regarding minimum standards for fish and wildlife resource information. The court holds that the Secretary struck a prudent balance between competing views. SMCRA does not mandate that fish and wildlife information and a protection plan be included in a permit application, and thus the Secretary has substantial discretion in fashioning rules. Moreover, the Secretary's revisions of the fish and wildlife plan are not arbitrary or capricious, and case law discussing national or minimum standards for alluvial valley floors has no bearing on interpreting this rule. [The prior decision in this litigation is published at 20 ELR 20819.] Counsel for Plaintiffs Counsel for Defendants Flannery, J.: In this matter, the court continues to rule on further challenges to regulations implementing the Surface Mining Control and Reclamation Act of 1977 ("SMCRA" or "the Act"), 30 U.S.C.A. 1201 et seq. The Act seeks to protect society and the environment from the harmful effects of surface coal mining, sometimes known as "strip mining," as well as damage to surface land caused by underground coal mining. As stated below, the Court will reject all of these challenges and uphold the regulations in question. In these three consolidated cases, environmentalist and industry plaintiffs separately ask the Court to strike down certain SMCRA rules on revegetation, groundwater recharge capacity in surface lands above underground mines, and fish and wildlife in the mining area. In opposition to both, the government defendants ask the Court to uphold the rules as a valid exercise of their authority under the Act to regulate coal mining operations.1 To mix the parties up further, [20 ELR 21176] industry has been granted intervenor-defendant status on the environmentalists' six challenges. Within the three main disputed areas, eight separable issues are before the court on cross motions for summary judgment: five concern revegetation, one challenges the current rule about groundwater in the land over underground mines, and two involve the fish and wildlife question. This past year, the Court has had before it 15 different cases in four consolidated groups calling for decisions about various SMCRA regulations. In an earlier opinion, Nat'l Wildlife Fed'n v. Lujan, 733 F. Supp. 419, 31 Env't Rep. Cas. 1007 [20 ELR 20819] (D.D.C. Feb. 12, 1990) ("NWF III, Round I"), the Court dealt with the first three cases, and now will resolve a second group of three. Two other groups, one of six cases, and one of three cases, remain. This agglomeration of cases is the fourth time this court has reviewed rules under SMCRA.2 Most of the issues decided today arise from rulings the court made in 1984 and 1985 during its third review of SMCRA regulations. The Court remanded several regulations back to the Secretary to be revised or for additional comment, and plaintiffs challenge the Secretary's actions on remand. Before taking up the various challenges, the court will restate the proper standard of review. As noted previously in NWF III, Round I, SMCRA § 526(a)(1), 30 U.S.C.A. § 1276(a)(1), provides that "Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law." The court has called this "a narrow scope of review. This court will not substitute its judgment for that of the agency." PSMRL II, Round I, Mem. Op. at 2, 21 Env't Rep. Cas. at 1194. Further while "'reasonable agency interpretive positions must be upheld,' the Courts 'remain the final arbiters of statutory meaning.'" PSMRL II, Round I, Mem. Op. at 2, 21 Env't Rep. Cas. at 1194) (Citations omitted.) This Court also recognized that: The problem facing the reviewing court is exacerbated when an agency reverses its prior position. Although the court must not put the agency in a straight jacket to prevent any change in a course once set, the court must be satisfied that the agency states permissible reasons for this change. . . . This court will examine the regulations and uphold them to the extent they are consistent with the language of SMCRA as interpreted in light of the legislative history. . . . If [the Secretary's] interpretation frustrates the policy that Congress sought to implement, no amount of deference can save it. Id., Mem. Op. at 3, 21 Env't Rep. Cas. at 1194-95 (internal quotation marks and citations omitted). As was the case in NWF III, Round I, several issues before the Court today result from changes in the Secretary's position taken in the first published permanent regulations in 1979. SMCRA §§ 515(b)(19) and (b)(20) set forth the environmental performance standards that surface mine operators must meet for restoring plant life on land that has been mined. The first standard mandates that surface coal mine operators: establish on the regraded areas, and all other lands affected, a diverse, effective, and permanent vegetative cover . . . capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area . . . 30 U.S.C.A. § 1265(b)(19). The second standard follows this up by requiring the surface operator to: assume the responsibility for successful revegetation, as required by paragraph (19) above, for a period of five full years after the last year of augmented seeding, fertilizing, irrigation, or other work in order to assure compliance with paragraph (19) above, except in those areas or regions of the country where the annual average precipitation is twenty-six inches or less, then the operator's assumption of responsibility and liability will extend for a period of ten full years after the last year of augmented seeding, fertilizing, irrigation, or other work . . . 30 U.S.C.A. § 1265(b)(20).3 The Secretary has fleshed out this statutory performance standard on revegetation with detailed regulatory ones found at 30 C.F.R. §§ 816.111-816.116.4 In particular, § 816.116 sets out at some length the standards for the success of revegetation. Both the environmentalists and industry have brought related challenges to a number of the provisions of § 816.116.5 In general, these challenges are a continuation of battles over revegetation rules fought in PSMRL II, Round III, 620 F. Supp. at 1159-65. Finding that the Secretary has exercised his discretion in promulgating these rules in a manner not inconsistent with SMCRA, that the rules are not arbitrary or capricious, and that the challenges are without merit, the Court will uphold all of the revegetation rules at issue here. (1) 30 C.F.R. § 816.116(c)(4) Husbandry Practices The common thread running through the first two challenges is the distinction between "augmentation" on the one hand and "normal conservation" or "selective husbandry" practices on the other. The former, augmentation, is SMCRA jargon that refers to special work after mining that an operator must perform to reclaim the land through revegetation. If, for example, a golf course were to be the postmining use, levelling the land for the course, digging sandtraps and water hazards, planting of grass for the fairways and greens, and shrubs and bush for the rough would all be augmentation. This work converts, or reclaims, the land from a played out mine to land suitable for another, postmining use. It is only after the golf course has been built, that is when augmentation is complete, that the five (or ten) year period of responsibility begins. During this period, the coal operator is, in effect, the greenskeeper of the course. If during the period of responsibility, it becomes apparent that revegetation is not successful, then the coal operator must go back and "augment." When this happens, and the "re"-augmentation is complete, the responsibility period starts anew. Under the Secretary's rules, the coal operator may undertake "selective husbandry practices." These are SMCRA jargon for maintenance and upkeep activities to ensure the success of revegetation. Selective husbandry practices, previously sometimes referred to as "normal conservation practices," are to be distinguished from augmentation, in that they do not start the responsibility clock again. Possible examples might be replacing divots in the fairway or raking sandtraps. In this matter, the environmentalists and industry clash over the secretary's rules that define whether an activity is a selective husbandry practice and who may decide the question. In this regard, the rules state: The period of extended responsibility for successful revegetation shall begin only after the last year of augmented seeding, fertilizing, irrigation, or other work, excluding husbandry practices that are approved by the regulatory authority . . . . 30 C.F.R. § 816.116(c)(1) (1989). In subparagraph (c)(4), the rules describe how an activity is designated a selective husbandry practice: The regulatory authority may approve selective husbandry practices, excluding augmented seeding, fertilizing, or irrigation, provided it obtains prior approval [from the Secretary's agent] that the practices are normal husbandry practices, without extending the period of responsibility for revegetation success . . . if such practices can be expected to continue as part of the postmining land use or if discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation success. Approved practices shall be normal husbandry practices within the region for unmined lands having land uses similar to the approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin control; and any pruning, reseeding, and transplanting specifically necessitated by such actions. 30 C.F.R. § 816.116.(c)(4) (emphasis added). In PSMRL II, Round III, the environmentalist plaintiffs challenged this rule's predecessor. The predecessor was much the same as the language quoted above, except for the emphasized clause. The gist of the 1985 complaint was that the rule permitted an operator to repair rills and gullies, including reseeding them or transplanting vegetation, without this restarting the responsibility clock. Although the rule challenged in 1985 did not speak of rills and gullies, the Secretary had stated in the preamble to the publication of the final rule that rills and gullies could be repaired without restarting the period of responsibility, but only if this were a normal conservation practice in the region. PSMRL II, Round II, 620 F. Supp. at 1562 (quoting 48 Fed. Reg. 40157 (Sept. 2, 1983)). The environmentalists argued that the Administrative Record gave no support for the view that rill and gully repair could ever be a normal conservation practice. The Court noted: The Secretary and industry respond that the [old] rule simply recognizes that the repair of rills and gullies is not always argumentative, and that the rule merely allows the regulatory authority to make that determination [under certain circumstances]. Further, the Secretary argues that by allowing the repair of rills and gullies, without creating fear that the time period recommence, the Secretary's interpretation of the rule will encourage the use of husbandry practices. The Court cannot say that the Secretary's stance is unreasonable. But . . . the Secretary has cited no support in the record for the proposition that the repair of rills and gullies is a normal conservation practice in any region of the country. . . . Thus the rule must be remanded as lacking support in the record. PSMRL II, Round III, __ F. Supp. at 1562. In response to this Court's remand, the Secretary proposed essentially the same rule, with one minor modification, changing the phrase "normal conservation practice" to "normal husbandry practice." 52 Fed. Reg. 28012, 28016 (Jul. 27, 1987). The Secretary explained that while the Court had remanded the rule on the rill and gully issue, it "did not find that [the rule], as promulgated in 1983, violated the Act." 53 Fed. Reg. 28012, 28016 (Jul. 27 1987). In essence, the Secretary decided to finesse the issue. He took the view that "primary responsibility for implementing a regulatory program that addresses those practices that are normal husbandry practices should rest with the State." Therefore, the Secretary declined to promulgate a national rule that addressed the rills and gullies issue. Id. Instead, he stated broadly that he would decide what was a normal husbandry practice only when a state put before him a specific request to amend the rules for its program. Then, the Secretary "would consider, on a practice-by-practice basis, the administrative record supporting each practice proposed by a regulatory authority as a normal husbandry practice." Id. In putting forward such a proposal, the state regulatory authority would have to show: (1) that the practice is the usual or expected state, form, amount or degree of management performed habitually or customarily to prevent exploitation, destruction or neglect of the resource and maintain a prescribed level of use or productivity of similar unmined lands and (2) that the proposed practice is not an augmentative practice prohibited . . . by the Act. In the final rule, the Secretary decided to make this approval requirement explicit. 53 Fed. Reg. 34636, 34641 (Sept. 7, 1988). "Two commenters suggested that [the Secretary] clarify the rule by making explicit the requirement for prior approval by [the Secretary] of practices proposed by the State regulatory authority as normal husbandry practice. . . . Therefore, the final rule establishes that [the Secretary's] approval must be obtained before [a] husbandry practice can be allowed to occur under a State regulatory program without resta[r]ting the responsibility period." The environmentalists renew their argument that the rule as now written should be struck down because it still permits mine operators to repair rills and gullies without restarting the responsibility period. According to NWF: No new evidence has been included in the record to support [the Secretary's suggestion] that the repair of rills and gullies is a normal conservation practice. The only change in the new regulation is the requirement that [the Secretary's agent] approve any supposedly "normal husbandry practice" . . . . . . . Rather than meeting this Court's objection and providing evidence that the repair of rills and gullies is a normal husbandry practice, [the Secretary] has attempted to avoid judicial review of the issue by suggesting that [the Secretary] will find (or require the state agency to find) the appropriate technical support before it approves . . . such practices. NWF's Mem. in Supp. at 15. Focusing almost entirely on the rill and gully question, NWF asks the Court to remand the current rule because the Court earlier rejected substantially the same rule for lack of support in the record. Without new evidence in the record, NWF contends, the current rule must suffer the same fate. The Secretary defends his action on two grounds. First, he contends that there is now evidence in the record to support the view that somewhere some repair of rills and gullies sometimes is considered a normal husbandry practice. Second, the Secretary argues that the rules state that an activity, including rill and gully repair, cannot become a normal husbandry practice in a particular state without approval by the Secretary, based upon a full administrative record. "Thus, unlike the 1983 regulations, the Secretary now requires that the state regulatory authority provide record support which shows that the repair of rills and gullies is normal husbandry in their region." In this instance, the Court must uphold the Secretary. The last time this issue came before the Court, it asked for some evidence that rill and gully repair could be a normal husbandry practice. The Administrative Record now has such evidence. See Comment of [20 ELR 21178] Pennsylvania Department of Environmental Resources, Revegetation Ad. Rec. at 151; Comment of Wyoming Department Environmental Quality, Revegetation Ad. Rec. at 159. While not all commenters agreed that such repairs are normal husbandry practices, a fair number did. The Secretary has the power and discretion to sort through conflicting comments and then decide among them. It is not the role of the Court to second-guess the choice, provided it is not inherently irrational nor devoid of support in the record. The Secretary's choice is neither. Equally important, the Secretary has exercised his discretion soundly. He has not, after all, decreed that all rill and gully repair everywhere, without exception, is a normal husbandry practice. He has decided only that some repairs, somewhere, might be. Further, he has required that before these repairs can be deemed a normal husbandry practice, the states must prove that the repairs are not augmentative. Moreover, the final detemination must be made upon a full record, and then still, must be made by the party Congress charged with setting standards and being disinterested, the Secretary.6 NWF has failed to prove that rill and gully repair is always augmentative. Without such proof, the Secretary's rule must stand. (a) [sic] Industry's challenge In trying to finesse the environmentalists, the Secretary finds himself forced to try to fend off a related attack from industry. Plaintiffs representing the coal operators attack the current rule's new requirement that the Secretary must approve a state regulatory authority's decision that an activity is a normal husbandry practice. Industry challenges this approval requirement as "a usurpation of authority [that] is not authorized by, and is contrary to, the Act and must be invalidated." Industry's Mem. in Supp. at 15. According to these plaintiffs, the Secretary's rule violates the Act because it improperly gives the federal government power that Congress wanted only the states to exercise. Pursuing this argument, industry contends that the Act is a carefully crafted "federalist" balance of powers divided among the federal and state governments. According to this view, Congress allotted different roles to the two levels of government. The federal government's role is to set a floor beneath which the states' level of regulation may not sink. While required to meet these federal standards, the states are given the primary authority to regulate mining operations. [T]he federal government's oversight ensure[s] the protection of the public interest and foreclose[s] destructive competition that might undermine the states' ability to regulate mining adequately. But particularly in matters involving the diverse physical conditions under which mining occurs in various regions, it was the states, with their greater familiarity with local conditions, and not the federal government, that Congress relied upon to regulate mining operations. According to industry, a rule requiring the Secretary to approve a state's decision about what is a normal husbandry practice "turns Congress' preference for accommodation [of varying local condition] on its head . . ." Id. at 16. Industryadds that the rule "strip[s] the state regulatory authority — the entity recognized as possessing expertise in local conditions — of its ability to decide whether, under those conditions, an operator's revegetation activities warrant a renewal of the period of responsibility." The result is that the coal operators "must now answer to another level of bureaucracy that can do no more than assess the revegetation practice against the same standard the state would have utilized . . . in the first place." From a practical standpoint, industry argues that "erosion on any land can be a continuous process requiring continuous attention. But rather than simply obtaining approval of a practice from the state regulatory authority, an operator must now wait while the authority first follows the time consuming practice for state program amendments . . ." Id. at 17. Industry further argues that if the Secretary fears that state regulatory authorities are failing in their duties in revegetation, then requiring a special approval of proposed normal husbandry practices is not the correct solution. Instead, industry suggests that the Secretary should resort to remedies written into the act. These include conducting special on-site inspections and "federalizing" the state program under the Act's provisions allowing the Secretary to take over part or all of the administration of an erring state regulatory effort. Industry follows these arguments up with another legal one, contending that the Secretary has failed to explain the changes in the rule adequately, as required by law. According to industry, the Secretary's sole explanation for the new approval requirement in § 816.116(c)(4) is that he has reconsidered the 1983 rule and concluded it granted flexibility that is inappropriate in a national performance standard. Therefore, the final rule establishes the requirement that [the Secretary's] approval must be obtained before husbandry practice can be allowed to occur under a state regulatory program without restarting the responsibility period. Id. at 25 (quoting 53 Fed. Reg. 34641-42 (Sept. 7, 1988)). In industry's view, this is conclusory reasoning of a sort that has been held inadequate. See NWF v. Hodel, 839 F.2d at 736 (rejecting Secretary's rationale for deleting performance standards on backfilling and grading on ground that phrase "contemporaneous reclamation" is relative term that must be interpreted by each State on basis of mining conditions in its territory). According to industry, the Secretary has failed to explain why he feels the former rule offered inappropriate flexibility, "given Congress' express preference for flexibility in regulating revegetation." Industry's Mem. in Supp. at 26. Industry also suggests that the Secretary has failed to explain the "disparate treatment here compared with [mining on] federal lands, for which the regulations allow permit-by permit approval of husbandry practices." Id. "In short, [the Secretary] has crossed 'the line from the tolerably terse to the intolerably mute." Id. at 27 (quoting Greater Boston Television Corp v. Fed'l Communications Comm'n, 444 F.2d 841, (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971)). In response, the Secretary calls industry's argument "rather odd because the state program procedures have always been subject to the Secretary's approval under Section 503 of SMCRA. 30 U.S.C. § 1253." Fed. Defts' Mem. In Supp. at 27. According to the Secretary, he "long ago promulgated substantive criteria which the program must meet in order to be approved." Id. In this view, the rule's new approval requirement "merely creates another piece of information that the state regulatory authority must submit to the Secretary as part of the program or its amendment." The Secretary also disputes industry's practical arguments. He suggests that the process of amending the state program to add an activity to the list of normal husbandry practices will not create costly delays. "The permitting process is not suspended or delayed while a state program amendment is pending approval. The previously approved program standards are not rendered ineffective by a proposed state program amendment. Permits are approved under the state program regulations in effect at the time." Id. at 29. Last, the Secretary contends that he has properly explained the change in the rule and quotes additional language from the preamble to the publication of the final rule for § 816.116(c)(4). [The Secretary's] position is that the primary responsibility for regulating surface coal mining and reclamation operations should rest with the States. Federal rules must be capable of nationwide application. The absence of minimum standards in portions of the Federal rules is not a weakening of the revegetation requirements but reflects that the rules are designed to account for regional diversity in terrain, climate, soils and other conditions under which mining occurs. The requirements for [the Secretary's] approval of normal husbandry practices proposed by State regulatory authorities based upon State-specific documentation of local husbandry practices will ensure that augmentative practices are not allowed to occur without restarting the operator's period of responsibility. Id. at 30 (quoting 53 Fed. Reg. 34642). The Court's resolution of NWF's challenge in the first issue above largely compels a similar one here. The Secretary's rule will be upheld. The Secretary is correct in arguing that he has the power to prescribe minimum standards for state programs and to approve [20 ELR 21179] amendments. The Court finds that the approval requirement to which industry objects is little more than a formal statement in a specific instance of the Secretary's general power to approve state program amendments. As such, it does nothing to disrupt the "federalist" approach Congress wrote into the SMCRA regulatory structure. The essence of that approach is that the Secretary sets minimum standards that the states then apply to their operations. It is clear that Congress wanted to accommodate local and regional differences, but it also wanted to ensure that there was a floor beneath which standards could not drop. The Secretary's decision to require his approval of normal husbandry practices strikes the Court as a sound way to blend the need to accommodate local differences with the mandate to ensure that minimum national standards are met throughout the country. Further, the Court does not find the Secretary's explanation to be conclusory. The language that industry cites is notall of the explanation. Perhaps more important, industry points to an instance when the Court of Appeals rejected the Secretary's explanation as too vague when he decided to delete national standards in favor of unfettered, "standardless" local decision-making. Here, the Secretary has decided to do nearly the opposite: he has replaced a rule permitting the same sort of standardless local decision-making with one that requires him to approve state action to see that it meets national standards. Such a decision is well within the Secretary's discretion in carrying out the role Congress assigned him. The Court rejects industry's challenge to the rule. (2) 30 C.F.R. § 816.116(b)(3) Standards for success on land with postmining uses as fish and wildlife habitat, etc. Subparagraph (b) of § 816.116 tailors the standards for successful revegetation to the "approved postmining land use." It then specifies the minimum conditions for various uses. The environmentalist plaintiffs and industry plaintiffs each attack a separate aspect of § 816(b)(3), which spells out the minimum conditions for "areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products." 30 C.F.R. § 816.116(b)(3). The rule states that [S]uccess of vegetation shall be determined on the basis of tree and shrub stocking and vegetative ground cover. Such parameters are described as follows: (i) Minimum stocking and planting arrangements shall be specified by the regulatory authority on the basis of local and regional conditions and after consultation with and approval by the State agencies responsible for the administration of forestry and wildlife programs. Consultation and approval may occur on either a programwide or a permit-specific basis. (ii) Trees and shrubs that will be used in determining the success of stocking and the adequacy of the plant arrangement shall have utility for the approved postmining use. Trees and shrubs counted in determining such success shall be healthy and have been in place for not less than two growing seasons. At the time of bond release, at least 80 percent of the trees and shrubs used to determine such success shall have been in place for 60 percent of the applicable minimum period of responsibility. 30 C.F.R. § 816.116(b)(3)(i) (Emphasis supplied.) Industry asks the Court to strike the emphasized language in subparagraph (b)(3)(i) requiring approval from state forestry agencies. Environmentalists want the Court to reject the 80% of 60% standard in subparagraph (b)(3)(ii). (a) § 816.116(b)(3)(i), Approval by state forestry agencies Industry plaintiffs ask the Court to strike down the provision in § 816(b)(3)(i) that state forestry and wildlife agencies must approve the minimum stocking and planting arrangements for revegetation of lands whose postmining use is planned to be wildlife habitat, recreation, and similar activities. The former version of the rule only required consultation with the state forestry agencies in setting the minimum stocking and planting arrangements. The Secretary made the change to require approval after this Court remanded two other rules, 30 C.F.R. §§ 816.116(c)(4) and 816.116(b)(3)(ii) in PSMRL II, Round III, 620 F. Supp at 1562-63. As discussed above, the Court remanded § 816.116(c)(4) because the administrative record did not contain support for the Secretary's view expressed in the preamble to the final rule that some repair of rills and gullies could be a normal husbandry practice. The Court similarly remanded § 816.116(b)(3)(ii) for lack of support in the administrative record. The (b)(3)(ii) rule had been premised upon the idea that some replanting of trees and shrubs could be a normal husbandry practice. In considering (b)(3)(ii) in 1985, the Court noted that the Secretary had defended NWF's challenge to the rule by stating that the then (b)(3)(ii) language had been adopted at NWF's own urging. PSMRL II, Round III, 620 F. Supp. at 1562-63. In reply, NWF argued that it was challenging the 1985 (b)(3)(ii) because it had only urged the language upon the assumption that state forestry and wildlife agencies would have to approve decisions about whether certain tree planting activities were normal husbandry practices. After the Court remanded (b)(3)(ii), the Secretary made changes to it, discussed in more detail below. At the same time, the Secretary amended (b)(3)(i) to require that state forestry and wildlife agencies must approve minimum stocking and planting arrangements. In making the change, the Secretary stated it should "assure that only the husbandry practices normally practiced in the region for the postmining land use occur without restarting the period of liability." 52 Fed. Reg. 28012, 28014 (Jul. 27, 1987). Industry now attacks this approval requirement. As in its challenge to § 816.116(c)(4) above, industry argues that this approval requirement upsets the balance that Congress struck in the Act among different agencies of government. Industry contends that the new language unlawfully delegates powers that Congress intended to be exercised by the regulatory authorities. To show that this delegation violates the Act, industry points out that the Secretary did not cite in the preamble to the proposed rule any SMCRA section that authorizes the Secretary to require such a separate approval. According to industry, SMCRA §§ 519(b)(19) and (20) give the Secretary such authority as he has to regulate revegetation. Plaintiffs add that this section is silent on any delegation of part of the regulatory power to state forestry and wildlife agencies. In contrast, industry says, when "Congress intended, by means of performance standards, to subject mining permits to other laws or to approval by outside agencies, Congress specifically so stated in the statute." Industry Mem. in Supp. at 11-12 (citing § 515(b)(7) (requiring Agriculture Secretary to establish reclamation standards for prime farm land); §§ 515(b)(8)(C), 515(b)(10)(B)(i), and 515(b)(15) (performance standards containing express reference to applicable federal and state law); § 15(c)(3)(C) (creating exemption when consistent with existing state and local land use plans and programs); § 515(f) (Secretary must obtain concurrence of Chief of Engineers for standards pertaining to coal mine waste); and § 516(a) (requiring concurrence of Assistant Secretary of Labor for Mine Safety and Health in regulations affecting underground coal mining). Industry also cites other sections of the Act not dealing with performance standards: § 503(b)(2) (requiring concurrence of Environmental Protection Agency for certain parts of state program); and § 522(e)(3) (requiring joint approval of regulatory authority and appropriate federal, state, or local agency if mining will harm public parks or historic sites)). Industry also points out that in § 513(a), which it terms "the Act's general mechanism for obtaining comments on mining and reclamation permits from local governmental bodies, planning agencies, and other authorities and companies," Congress only let these bodies comment. According to industry, Congress did not permit such bodies to exercise any approval authority. Industry plaintiffs also ask the Court to strike down the rule because the Secretary did not explain why he chose to add the requirement for approval by state forestry and wildlife agencies. Industry points out the Court's 1985 remand order did not specifically remand subparagraph (b)(3)(i), but rather sent back subparagraph (b)(3)(ii). In such an instance, industry contends that a change in policy begins with "a presumption 'against changes in current policy that are not justified by the rulemaking record.'" Id. at 20 (quoting Motor Vehicle Manufacturers Assn v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 42 (1983) (emphasis in original). According to industry, "to the extent this overall rulemaking purports to respond to the Court's earlier ruling, that ruling does not provide a basis for the revision of 816(b)(3)(i)." Industry's Mem. in Supp. at 21. Plaintiffs add that the Secretary's explanation is "riddled with flaws." Id. In industry's view, approving minimum planting and stocking arrangements is irrelevant to ensuring that replanting is a normal husbandry practice, which was the thrust of the Court's previous remand. Moreover, industry takes issue with the Secretary's statement that the revised rule "is in keeping with the Act, wherein program responsibility rests with the regulatory authority." Id. at 22 (quoting 52 Fed. Reg. 28014). Third, industry argues that the new rule does not give greater flexibility to state regulatory authorities, as the Secretary contends. Instead, according to industry, "the revision does just the opposite, for it puts the regulatory authorities at the mercy of other agencies and adds further to the inflexibility of the hierarchy of approval required." Id. at 23. Last, industry contends that the Secretary has failed to explain why the companion rule dealing with mining on federal lands does not contain a similar requirement for approval by a forestry agency. The rule on federal mining, like this challenged rule's predecessor, only requires consultation with forestry and wildlife agencies. In response, the Secretary states that the "purpose of the revision is straightforward: it is designed to ensure that the planting arrangements and husbandry practices approved by each state are valid practices which will result in successful revegetation by the end of the period of responsibility." Fed. Defts' Mem. in Supp. at 14-15. The Secretary asserts that the act gives him "broad rulemaking authority" that has been "interpreted to authorize the issuance of procedural and substantive constraints on the state regulatory authority." Id. at 15, 16. He argues further that: [T]he regulation furthers the purposes of the Act by helping to ensure revegetative success. By requiring the approval of the state forestry and wildlife agencies, the regulation ensures that the standards used will be consistent with those used by the state agency with the most expertise in the field. At the same time, the regulation avoids the use of a national standard which would not be responsive to the widely divergent topography and climate across the nation. The Secretary also disputes that the rule upsets SMCRA's balance of powers. "This does not mean that the forestry and wildlife agency approves the permit or regulates the miner in any way. The state agency merely provides substantive criteria to the state regulatory authority in making its decision, just as the Secretary provides criteria." Id. Defendants also seek to rebut industry's argument that the Act, by negative implication, forbids the requirement of approval by another agency. According to the Secretary, there "is nothing in SMCRA which makes the approval of another state agency a generally forbidden practice. Thus we are not faced with a situation where the Secretary is arguing for implicit authorization of a generally forbidden practice." Last, the Secretary contends that he has fully explained the change made to subsection (b)(3)(i). In particular, he addresses industry's view that the approval requirement bears no relevance to ensuring the normal husbandry practices are not augmentative activities. "The purpose of requiring approval of minimum stocking and planting arrangements . . . is the establishment of a standard for the measurement of revegetation success. Although the revision . . . does help to ensure that only normal husbandry practices occur to the extent that the planting arrangement discusses the practices to be used in conducting the planting, its more general purpose is to ensure that an adequate number of trees and shrubs are planted." Id. at 24-25. The Secretary also states that there is no inconsistency between the treatment of federal and nonfederal lands because state forestry and wildlife agencies must approve the stocking and planting arrangements on federal lands under the rule. In deciding to uphold the Secretary's rule against industry's challenge, the Court finds that the rule does not upset any "federalist" balance, or any other balance in the powers apportioned, that Congress intended to strike. The Court considers that the balance struck was between federal and state government. The Act established a "set of national environmental performance standards to be applied to all coal mining operations and to be enforced by the State . . . ." H.R. Rep. No. 95-218, 1st Sess. 57 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 593, 595. To the extent that the Secretary may decide to require two state agencies to work together, he has neither arrogated to the federal government power Congress wanted the states to exercise, nor delegated to the State some authority that Congress reserved to the federal executive. Further, as the Secretary points out, he has not transferred to some entity other than the state regulatory authority any of the regulatory's duties enumerated in the Act. Rather, he has merely decided that a presumably expert state agency must approve the minimum number of trees and shrubs that must be planted for an operator to revegetate successfully.7 In fact, the state regulatory authority continues to specify the planting and stocking arrangements, provided that the state forestry and wildlife agency approves them. The Court also agrees with the Secretary that the argument from negative implication is inapposite here. What the Secretary has done is decline to set national stocking and planting arrangements. In recognition of local diversity, the Secretary lets these figures be established at the state level. The Court doubts that industry — which before this Court usually has favored greater state authority and fewer national standards — really means that this is a generally forbidden practice.8 That a role for another state agency is no novel concept may be seen from the previous rule, which required the state regulatory authority to consult with the forestry and wildlife agency. That provision was not challenged. There is no reason to suppose that a state agency with expertise in mining coal has a special knowledge of the number of shrubs and trees necessary to start and then carry on a wildlife habitat. In this very limited instance, it strikes the Court as prudent to require the state agency with knowledge and experience in this field to approve planting and stocking arrangements to ensure that the wildlife habitat or forested land will become what has been planned. In this regard, minimum planting and stocking arrangements are not irrelevant to revegetative success, but may instead be its essence. If a minimum number of trees are not put into an area to start with, then the entire "colony" may be too small to prosper, and likely to wither. Such an occurrence ill-serves the goal of reclamation. Nor, for that matter, does it benefit the coal operator. After all, if revegetation is not successful the first time, the operator must go back and augment again, with another five years to run before its responsibility ends and its bond is released. A bad beginning rarely brings a good end. The Secretary's rule appears to make a good beginning — and thus the desired end — more likely. In a technical area, such as how many trees and plants will ensure natural propagation and regeneration, the Secretary has wide discretion to prescribe how to achieve success. In requiring approval by an agency presumably more expert and experienced than a mining agency, the Secretary seems to have acted prudently. In any event, he has not violated the law and it does not appear that he has acted irrationally or arbitrarily. The Secretary's decision will be upheld. (b) § 816.116(b)(3)(ii), 80% of 60% As noted, the Court has been down this road before. In PSMRL II, Round III, the Court remanded the predecessor to this rule because "there should be some support in the record for the fact that the practice in question may, in some instances, be a normal conservation measure." PSMRL II, Round III, 620 F. Supp. at 1563 (emphasis in original). On remand, the Secretary decided to repromulgate essentially the same rule, with slight changes to the language and the order of sentences. One change the Secretary did make was to alter the former requirement that at least 80% of the trees and shrubs to be used for measuring success "shall have been in place for at least three growing seasons in areas with a 5-year period and at least eight growing seasons in areas with a 10-year period of responsibility." 30 C.F.R. § 816.116(b)(3)(ii) (1985). Instead the Secretary adopted the rule that 80% of the trees and shrubs "shall have been in place for 60% of the applicable minimum period of responsibility." 30 C.F.R. § 816.116(b)(3)(ii) (1989).9 The environmentalists again challenge subparagraph (b)(3)(ii) of § 816.116 because it "allows and indeed encourages the replanting of trees during the period of responsibility." NWF's Mem. In Supp. at 3. On a broad basis, NWF contends that any replanting of trees is an augmentative process that restarts the period during which the operator is responsible for revegetation. Second, NWF contends that even if some replanting of trees is not augmentative, the rule is flawed because it has the practical effect of enabling the operator to replant all of the trees during the first two years of a five-year period or the first four years of a ten-year period. On the first point, NWF impeaches the Secretary's evidence supporting the view that replanting is a normal husbandry practice. NWF argues that all of the Secretary's evidence "address[es] reforestation of lands after timber harvesting. NWF points to § 515(b)(19)'s language that the period of responsibility begins "after the last year of augmented seeding, fertilizing, irrigation, or other work . . ." In NWF's view, "[u]nder this provision, the only husbandry practices that may be deemed non-augmentative and therefore allowed without restarting the period of responsibility are those which normally take place on similar undisturbed lands." NWF Reply at 5. In essence, NWF suggests that if a practice is not one that would normally be undertaken to husband land that has never been mined, then the practice must be being undertaken because the land has been mined. Such a practice, therefore, has to be part of the effort to reclaim the land from mining's effects. According to NWF, Congress wanted all reclaiming or "augmentative" processes finished before beginning the period of responsibility. The purpose of the period is to give time to see whether reclamation through revegetation has succeeded. Success cannot be determined, however, "if the operator is permitted to replant continually in an area . . . while the period of responsibility is running." NWF Mem. in Supp. at 6. As its second argument against the current rule, NWF asserts that even if some replanting is allowed without restarting the period of responsibility, the current rule "allows by its express terms 100% replanting of trees during the first two years of a five-year period . . . and . . . the first four years of a ten-year period of responsibility." Id. at 8. NWF adds: Surely, it turns the English language and the Congressional intent . . . on their head to allow 100% or complete replanting of every tree during the responsibility period, and then call the replanting a normal husbandry practice and not "augmentative" of the original planting. . . . The effective impact of the Secretary's rule is to reduce the period of responsibility from five years to three (or from ten years to six) as his rule allows total replanting without restarting the period of responsibility for the first two year (or four year) period. The Secretary responds first that there is substantial evidence now in the record to support the contention that some replanting is a normal husbandry practice. In addition to support based upon practices in Oregon and Washington, the Secretary cites comments from the Virginia Department of Mines, Minerals, and Energy that replanting is a normal husbandry practice in that state. "These authorities recognize that replanting is a normal husbandry practice necessitated by the vagaries of nature which cause significant mortality rates for seedlings. In addition, replanting is used to avoid creating an even-aged stand of trees, which some studies have indicated are less resilient and self-sustaining than a growth with different ages." Fed. Defts Mem. in Supp. at 35 (citing Comments of Colorado's Department of Natural Resources). Concerning NWF's contention that the rule would allow an operator to replant land completely during the first two years of the responsibility period, the Secretary states that NWF has focused too narrowly on subparagraph (b)(3)(ii). "Although the 80%/60% rule was not intended to allow total replanting to occur as a normal husbandry practice, the Secretary recognizes that the regulation does not, by itself, prohibit such an event. However, the complementary regulations in subsection (c)(4) will ensure that this does not occur." Id. at 36-37. In the Secretary's view, subparagraph (c)(4) requires the state regulatory authority to classify the types of replanting that may be considered "normal husbandry" practices. The Secretary must then approve this classification. "Thus a proposal to totally replant would not be allowed because it could not be classified as a normal husbandry practice and thereby overcome the hurdle imposed by (c)(4)." The Secretary also points out that the previous rule that the Court reviewed in 1985 used an 80%/60% formula for areas with five-year periods of responsibility, but did so in different terms.10 According to the Secretary, the Court's PSMRL II, Round III did not criticize this provision, but only remanded the rule because of lack of support in the record. The Secretary contends that the current support in the new record meets this Court's previous objection and the rule should be upheld. Again, the Court must agree with the Secretary. In the first place, as the Secretary notes, the Court did not strike down the substance of the rule as unlawful, but remanded it for lack of support in the record. Assuming, arguendo, that there is now support for the view that replanting may be a normal husbandry practice, the Court is hard-pressed to see the difference between a rule using three growing seasons in five years and and one using 60% of five years.11 The former does not seem to have troubled NWF. Therefore, it is not clear why the new 60% portion of the text is itself an improper rule, except insofar as it might permit 100% replanting in the first two years. In its reply brief, NWF does not try to explain the difference between the two versions of the rule.12 With regard to the question of 100% replanting, the Court also agrees with the Secretary that the entire rule 30 C.F.R. § 816.116 must be read as a whole. Paragraph (a) of the rule lays out the statistical methods and criteria for determining whether revegetation has been a success. Paragraph (b) sets forth minimum standards for success. These are the standards that an operator's revegetation must meet, using paragraph (a)'s measuring methods. Subparagraph (b)(3) establishes the standards for success of land with a postmining use of wildlife habitat, recreation, shelter belt, and forestry products. Then, (b)(3)(ii) specifically limits the trees and shrubs that may be counted, or included in paragraph (a)'s statistical method, to see if the operator has met the standards for success. In other words, the Secretary is saying to an operator in this subparagraph: "Although all of your trees whenever planted, might, in fact, meet the other qualitative standards, for example, stabilizing the soil or regenerating, the overwhelming majority of them must have been in place for three years, or six years, as the case may be, before you may count them. In essence, we are adding this additional requirement to make sure that the trees and shrubs have a demonstrated staying power." This view does not appear to the Court to be irrational or in violation of the law. This is bolstered by paragraph (c) which then generally states when during a period of responsibility the measurement of certain standards of success may take place. Going beyond the limitations that the preceding paragraphs place on how an operator may demonstrate successful revegetation, subparagraph (c)(4) has the effect of restarting [20 ELR 21182] the responsibility clock when an operator engages in an activity in aid of revegetation that is augmentative. It does so by defining what constitutes a normal husbandry practice. Unless an act meets the definition of a normal husbandry practice, the responsibility clock must begin again. In this regard, the Court agrees that the definition prevents an operator from replanting completely without starting the period of responsibility anew. Therefore, NWF's argument that § 816.116(b)(2)(ii) must be struck down because it permits 100% replanting runs afoul of the overall § 816.116. This brings the Court squarely before the more general issue of whether any and all replanting is inherently augmentative. NWF essentially asks this Court to order the Secretary to promulgate a national rule, with no exceptions, stating that whenever an operator replants, a new five or ten years must be added to the time for which the operator is responsible for revegetation.13 As NWF concedes, the Secretary can point to support in the record that replanting may be a normal husbandry practice. See, e.g., comment of Virginia Department of Mines, Minerals, and Energy, Revegetation Ad. Rec. at 129; comment of Virginia Department of Forestry, Revegetation Ad. Rec. at 143; comment of Pennsylvania Department of Environmental Resources, Revegetation Ad. Rec. at 151; comment of Illinois Department of Mines and Minerals, Land Reclamation Division, Revegetation Ad. Rec. at 145. NWF complains, however, that the support does not justify the rule because it consists of rules for replanting forests after logging. First of all, this is not particularly so. Pennsylvania's comment have [sic] nothing to do with timbering operations. Nor does either of Virginia's. Illinois' comment specifically states that "replanting of trees is an established practice" and it may be gathered that this is in the context of a wildlife habitat because the comment then discusses what happens when wildlife eat or damage trees and shrubs. Thus, the Secretary's support in the record is not limited to timbering operations. At the same time, the Court fails to see what is wrong with evidence adduced from timbering operations. Indeed, to the Court, it seems that the evidence in the record directed to normal husbandry practices in forestry and timber operations has a peculiar and particular logical relevance to land with a postmining use for forestry products. The logic in NWF's view with regard to this postmining use eludes the Court. Similarly, it is not clear to the Court why replanting would be unusual on land used for recreation that has never been mined. Ultimately, such logic as there be in NWF's argument seems only to relate to the possibility that it is unlikely that some company or public agency would normally replant on land that has never been mined and that is a fish and wildlife habitat or a shelter belt. The Illinois comment would seem to undermine this contention. In any event, the Court is not an expert on what normally happens in fish and wildlife habitats or shelter belts. By law, the Court must defer to the reasoned choice of the person that Congress designated to be such an expert in the context of surface coal mining. That person is the Secretary. The Secretary points to a record on the specific point at issue in this challenge. The Court has examined the record and finds that it contains support for the Secretary's position. It must be remembered that when the Secretary and NWF disagree, provided the Secretary has support in the record, this Court may not sort through their arguments and pick the winner with the better position. Instead, Congress has dictated and higher courts have approved that the Secretary wins and his opponents lose. That is the result here. The Court will uphold the Secretary's rule. (2) In areas of more than 26.0 inches of annual average precipitation, the period of responsibility shall continue for a period of not less than five full years. Vegetation parameters identified in paragraph (b) of this section for grazing land or pasture land and cropland shall equal or exceed the approved success standards during the growing seasons of any two years of the responsibility period, except for the first year. . . . 30 C.F.R. § 816.116(c)(2) (1989) (emphasis supplied). In contrast, the next sentence of the same rule provides that land that will have a postmining use other than for grazing, pasture, or crops must meet the success standards in the last year of the responsibility period. Moreover, all the land in areas with ten-year periods of responsibility must meet the success standards in the last two years of the period. 30 C.F.R. § 816.116(c)(3). In PSMRL II, Round III, the Court struck down § 816.116(c)(2)'s predecessor, which required that revegetation on land of whatever type only had to meet success standards during the final year of the responsibility period. PSMRL II, Round III, 620 F. Supp. at 1563-65. The Court held that before "the Secretary can permit states to use a one-year period, there must be some showing by the Secretary that one of the one-year period would suffice to meet the statutory mandate that the operator establish 'a diverse, effective, and permanent vegetative cover' as required by § 515(b)(19)." Id. at 1564. In challenging the 1985 one-year rule, NWF had been concerned that it is impossible to prove in only one year that the new plants would regenerate, because regeneration necessarily takes more than one year. In response to the Court's remand, the Secretary proposed to revise the rule so that grazing land, pasture land, and cropland must meet the success standards during the growing seasons of the last two years of the responsibility period. 52 Fed. Reg. 28012, 28015 (July 27, 1987).14 The Secretary specifically invited comments, however, on whether using any two years of the period of responsibility, except the first year. In the final rule, the Secretary decided to change his original proposal on remand, and required that the success standards be met in any two years other than the first. NWF challenges the new rule because it could result in approval of revegetation success on lands which are barren and plainly do not meet the requirement for a "diverse, effective and permanent vegetative cover" . . . . [A] permittee can opt to have the second and third years of the 5-year responsibility period used as the exclusive measure of revegetation success. If success is shown during these two years, under the new rule it would be irrelevant whether the vegetation withers and dies during years four and five; the revegetation success standard will have already been met according to the rules at issue here. The environmentalists also contend that the rule is arbitrary and capricious because the comparable rule for land with a ten-year responsibility period requires that success standards be met for the final two years. NWF concedes that it is more difficult to revegetate successfully in drier regions. But, "[t]his fact is accounted for in the statute by increasing the period of responsibility from 5 to 10 years. It is not obvious, however, that the manner of measuring reclamation success should differ so markedly for the two areas." Id. at 12-13. In response, the Secretary disputes the NWF's contention that the current rule would allow land that has grown barren in the fourth or fifth year to be considered revegetated based upon the experience in the second or third year. According to the Secretary, the rule refers to one specific success standard, which is one of a number of such standards. He adds that while this one need not be met in the final year, land that is barren in the end of the responsibility period will not meet the other standards. These include that the site have a "vegetative cover which is 'diverse, effective, and permanent,' is 'capable of stabilizing the soil surface from erosion' and is 'equal in extent of cover to the natural vegetation of the area.' 30 C.F.R. § 816.111." Fed. Defts' Mem. in Supp. at 42-43. The Secretary argues that if an operator's revegetation effort does not meet these other standards, then the responsibility period cannot end. The Secretary also contends that he has adequately explained the rule. He points to the preamble to the final rule, where he stated that requiring an operator to meet this particular standard in the two final years fails to take proper account of unusual years with bad weather. In the Secretary's view, if he requires that the last two [20 ELR 21183] years or any two consecutive years of the responsibility period be used an operator would be unnecessarily penalized if bad weather in the second year of the measurement period caused failure to meet the revegetation success standard after it has been achieved in the first year. The operator has the option under the regulations . . . to select the years in which measurement of revegetation success will occur in order to produce an outcome that is representative of the reclaimed area's true productivity. Id. at 45-46 (quoting 53 Fed. Reg. 34640). The Secretary adds that there is a simple reason for difference between the years for measuring success in the rule on land with a five-year period of responsibility and a ten-year period of responsibility. The rule on five-year land was adopted in response to this Court's remand in PSMRL II, Round III. The rule on ten-year land, which is in a different subparagraph, § 816.116(c)(3), was not at issue in that case and has remained unchanged since 1983. According to the Secretary, therefore, there was no reason to discuss the differences between §§ 816.116(c)(3) and (c)(2). Initially, the Court finds that the explanation for the change in this rule from its previous incarnation is not irrational or arbitrary. Consideration of the notorious vagaries of the weather may properly be taken into account when dealing with whether plants will be healthy in the long run. Concerning NWF's argument that the rule is inconsistent with the law because it allows barren land to be considered revegetated, the Court is not persuaded by an argument that looks at one sentence in one subparagraph of a lengthy rule, ignoring the rest of the regulation. This is what NWF asks the Court to do. Indeed, in this instance, the Court would have to ignore not only the rest of § 816.116, but § 816.111 (general requirements for revegetation) as well. These other rules make it clear that the specter of barren land being deemed successfully revegetated is chimerical. These rules set up other standards to measure the success of revegetation. Barren land cannot meet them. If, following NWF's argument, land whose plants withered and died completely in the fourth or fifth years were approved as successfully revegetated, then that approval would be unlawful. The Court is unaware of authority that says that in each clause of each of his regulations the Secretary must anticipate an unlawful act and provide for it. NWF cannot pervail on this ground. NWF's second attack is no more availing. NWF complains that it is irrational and illogical for the Secretary to use any two years but the first for land with a five-year period of responsibility while using the final two years for ten-year land. The Court finds this too thin a reed to strike down the rule. It appears to the Court that the Secretary has the discretion to retain one rule unchanged, while making a change in another, albeit similar one. The most obvious explanation for this is the difference in the weather, specifically, ten-year land by definition has fewer than 26 inches of rain and snow, while five-year land has more precipitation. NWF seems to have anticipated this view, and tried to discredit it preemptively by stating that the difference in the length of the period of responsibility is the sole means that Congress intended to account for such differences in rainfall. Whether or not the Secretary agreed with this, he put forward only the explanation that this Court did not remand the rule on ten-year land, so he did not change it. The Court, of course, is not permitted to find its own rationale and substitute it for that put forward in the Secretary's brief. It does not do so here, and accepts the Secretary's view. In accepting the Secretary's explanation, however, the Court may also go on to reject NWF's view that Congress precluded accounting for the differences in weather by any means other than the length of the period of responsibility. Further, the Court finds the distinction here between the rules on five-year land and ten-year land very mild. The Court finds overblown NWF's earnest contentions that the rules "differ so markedly," that there is a "a stark distinction" between them, or that they use "two very different methods." NWF's challenge must be rejected. III. Underground Mine Recharge Capacity Recharge capacity is "the ability of an area to replenish its groundwater content from precipitation and infiltration from surrounding lands." H.R. Rep. 95-218, 95th Cong. 1st Sess. 116 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News, 593, 649. Surface mining, of course, means moving around and changing the composition of the earth and dirt. Reclaimed land can have soil characteristics that differ from those of the previous undisturbed land. The result may be that water is not absorbed or run through the soil to the same degree or in the same manner as before. This may change local springs, streams, ponds, and other bodies of water. In light of this, Congress included a performance standard for surface mining operations at § 515(b)(10), which states that a mine operator must: 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 by — (D) restoring recharge capacity of the mined area to approximately premining conditions; . . . . Although SMCRA § 516, which lists performance standards for the surface effects of underground mining, also states a similar performance standard, it contains no reference at all to restoring recharge capacity. Compare 30 U.S.C.A. § 1266(b)(9) and 30 U.S.C.A. § 1265(b)(10) (initial subparagraphs A and B nearly identical, but § 1265(b)(9) continues with additional, standards (B)(ii) through (G), while § 1266(b)(10)(B) adds one duty not found in § 1265(b)(9)(B)(i)). To implement the surface mining standard, the Secretary has promulgated extensive regulations beginning with his first set of rules. See 30 C.F.R. §§ 816.41 — 816.57 (1989). He also has promulgated rules for underground mining, but they are not as extensive. See 30 C.F.R. §§ 817.41 — 817.49 (1989). It appears that from when he first published permanent SMCRA rules until 1982, the Secretary did not see the need for a regulation on restoring recharge capacity for underground mining operations. In putting forth his first set of permanent program regulations, the Secretary said that an earlier interim rule was originally established to identify requirements necessary to protect the recharge capacity of aquifers affected by underground mining activities. However, since the structural integrity of water-bearing formations should not be significantly affected by underground mining, the recharge capacity of the formations should be maintained without any special precautions. Consequently, [the interim rule] has been omitted from the draft regulations. 43 Fed. Reg. 41780 (Sept. 18, 1978). In 1982, the Secretary proposed to pull together in one place for each type of mining all of his regulations on hydrology and otherwise to overhaul the rules in this area. See 47 Fed. Reg. 27712 (July 25, 1982). The new rules included a proposed 30 C.F.R. § 817.41, which dealt with protecting the hydrologic balance for underground mining. As relevant here, the Secretary proposed at § 817.41(b)(2) that underground operators restore the approximate on-site and off-site "water availability" that had existed before underground mining started. The Secretary finalized these rules at 48 Fed. Reg. 43956 (Sept. 28, 1983). In doing so, he changed the phrase "water availability" in proposed § 817.41(b)(2) to "recharge capacity" in the final rule. The rule then read: Ground-water quantity shall be protected by handling earth materials and runoff in a manner that will restore approximate recharge capacity of the reclaimed area as a whole, excluding coal mine waste disposal areas and fills, so as to allow the movement of water to the ground-water system. 30 C.F.R. § 817.41(b)(2) (1984) (emphasis added).15 This provision drew a challenge from industry during the [20 ELR 21184] 1984-85 PSMRL II litigation. In response, the Secretary retreated: he agreed to suspend § 817.41(b)(2) pending development of a more complete administrative record. He did so at 50 Fed. Reg. 7274 (Feb. 21 1985). Later, the Secretary sought comments on how to deal with the question in order to create an administrative record for any action. 51 Fed. Reg. 44742 (Dec. 11, 1986). In that announcement, the Secretary asked commenters to discuss whether (1) SMCRA permitted the Secretary to levy such a requirement, that is, the legal justification, and (2) whether such a requirement was needed, that is, the technical justification.16 In the end, the Secretary decided to delete any requirement for underground mine operators to restore recharge capacity, stating: After reviewing these comments, as well as the Act, its legislative history, and the remainder of the administrative record for this rule, [the Secretary] has decided that nothing in the act requires [him] to promulgate a rule requiring the restoration of approximate premining recharge capacity at underground mines. Moreover, potential impacts on hydrologic recharge capacity deriving from surface operations incidental to underground mining are insignificant. 52 Fed. Reg. 45920, 45921 (Dec. 2, 1987). In essence, the Secretary concluded that he did not have to resolve the question of whether he could issue rules on this question. The Secretary then decided that the technical justification for promulgating such rules did not warrant the action. "After consideration of the technical differences between surface and underground mining . . . [the Secretary] believes that a rule requiring the restoration of premining recharge capacity at underground mines is not needed." Id. at 45922. As a result, the Secretary eliminated 30 C.F.R. § 817.41(b)(2) entirely and deleted the phrase "restore approximate premining recharge capacity" from 30 C.F.R. § 784.14(g). NWF now challenges this technical determination. It urges the Court to reverse the decision as arbitrary. In NWF's view, the Secretary's explanation for this decision reflects, that in the face of acknowledged uncertainty over and absence of information regarding the scope and magnitude of the impacts of surface effects of underground mining operations on the recharge capacity of the affected lands, [the Secretary] acted arbitrarily in failing adequately to explain or justify his "technical" decision. NWF's argument boils down to two complaints. The first is that the Secretary acknowledges that, under some circumstances, it is possible for the surface effects of underground mining to have an impact on recharge capacity. Therefore, the Secretary must fully explain why he is making final a decision to withdraw regulations that deal with this potential problem. Second, NWF believes that the Secretary ignored its technical comments, which NWF asserts prove that underground mining can pose a greater threat to recharge capacity than the Secretary has been willing to admit. In either event, NWF argues that the Secretary has failed to meet his burden of explaining why he has ignored these facts in making his final decision changing the old rule. For his part, the Secretary contends that NWF wrongly puts the burden of proof on him. Instead, according to the Secretary, it is NWF that must prove that the Secretary erred. "Since plaintiffs have not cited any technical justification for the requirement that underground coal mine operators restore the recharge capacity of the mined land, their challenge must be rejected." Fed. Defts' Mem. in Supp. at 53. The Secretary goes on to impeach NWF's submittal of technical documents. According to the Secretary, the chief flaw in NWF's technical support is that none of the cited literature actually deals with underground mining. In the Secretary's view, all of the literature NWF cites deals specifically with surface mining. He adds that NWF's comments are thus its interpretation and extrapolation from studies that are not on point. The Secretary's second argument is that in any roughly equal battle of experts, the Secretary wins. "The weighing of the data in the record and extrapolation of regulatory policy from that record is committed to the Secretary's discretion." Id. at 56. In particular, the Secretary argues that "the agency's expertise and judgment is accorded considerable deference on scientific issues where there is scant information on point." Id. at 57. Moreover, the Secretary contends that his position has been consistent all along. In his view, the rule "does not represent a change in theSecretary's position . . . The requirement [to restore recharge capacity] was promulgated for the first time in 1983, and withdrawn virtually immediately because it lacked adequate record support." Id. at 55. Here, too, the Secretary has the better of the argument, and the Court will reject NWF's challenge. First, NWF assumes that the Secretary may issue a rule requiring underground operators to restore recharge capacity. There is, however, no recharge capacity language in the Act's performance standard for surface effects of underground mining. See 30 U.S.C.A. § 1266(b)(9). Thus, whether the Secretary has authority at all to impose a requirement that underground operators restore recharge capacity is debatable. Cf. NWF v. Hodel, 839 F.2d at 753-54 (upholding a difference between surface and underground operations in treatment of water replacement in another part of the Act). The Secretary chose not to decide this issue, however, and, it not being briefed, neither will the Court. Second, NWF assumes that the Secretary has the burden of explaining the change in this rule from the previous one. The Court also need not go into the doubtful status of a rule briefly promulgated, then quickly withdrawn in the face of a legal challenge that it had no support in the administrative record. The burden cannot be on the Secretary to justify changing such an evanescent stricture, however, unless it was first a lawful dictate. The Secretary says it was not. NWF implicitly says it was. The Court has enough live rules before it without taking time out to decide dead ones. In any event, it makes little difference. Even assuming that the Secretary has to justify a change from his previous rule, the Court finds that he has done so. Among a number of points, he has stated that the "surface facility areas associated with underground mines exist for the life of the mine, which is generally measured in decades. Consequently, recharge capacity is minimally impacted, it will readjust naturally during the life of the mine." 52 Fed. Reg. 45920, 45922 (Dec. 2, 1987). On this, and a number of other technical considerations, the Secretary has based a conclusion that there is no need for a recharge rule for underground operations. The Court finds acceptable the explanation that geologic and technical considerations do not support promulgating a rule. As in some of the previous issues, NWF's real complaint is that the Secretary did not agree with the technical material the environmental lists submitted. The Court's first response is that the Secretary has Congressionally given authority to resolve disputed technical material, provided that some evidence in the record supports the choice he finally makes. Here, however, there is a different wrinkle. The parties appear to agree that there is not a lot of information on point, that is, no expertise, as opposed to experts, available. In this regard, NWF has submitted technical papers from which it has drawn inferences suggesting that a recharge rule may be needed for underground mines. The Secretary says the papers deal with surface mines, and the phenomena discussed in them do not apply to underground mining operations. To put it in terms more familiar to lawyers, since only a geologist could really fathom this, NWF argues that in the absence of precedent from this jurisdiction, its cases from another jurisdiction — that is its geologic reports — are persuasive authority. On the other hand, the Secretary contends that the reports — NWF's citations — are unpersuasive because not only are they based on dicta, but dicta directed to inapposite facts. This is a technical question beyond the ken of the Court. From all appearances it is a battle of the experts. Once again, it is important to note that the Court is not in a fact-finding role here. It does not have to, indeed, it is not supposed to sort through the experts and discover which are correct. Normally, the Court's duty is to make sure that the Secretary has some experts supporting his position, and that his rule reflects their expertise. In this instance, there apparently being no experts with directly applicable expertise, the Court must uphold the Secretary. Provided the Secretary has fully considered the lack of expertise on all sides, he has substantial discretion to choose the option of not promulgating a rule. In short, it is unclear whether the Secretary has the authority [20 ELR 21185] to put forward a rule requiring underground operators to restore recharge capacity. It is apparently equally unclear whether such a rule is warranted, or even, which way the evidence points, if there is evidence on point. The Secretary has chosen not to step into this breech. Nothing brought to the Court's attention suggests he should be forced to fill it, and the Court will uphold his decision. NWF challenges the Secretary's regulation on what a coal mine operator must include about fish and wildlife in an application for a mining permit. The specific rules in question are 30 C.F.R. § 780.16 (1988) (surface mines) and 30 C.F.R. § 784.21 (1988) (underground mines). They dictate what information the operator must supply about fish and wildlife resources and what kind of a plan the operator must draw up to protect and enhance fish and wildlife. The Court finds that NWF's challenge is based upon an inapposite legal standard and that, in any event, the Secretary's revisions to the rules in question do not work substantive changes to the old rules. Further, the Court concludes that because the Secretary has discretion to decide not to require any information or a plan in the permit application at all, he has great latitude in spelling out the details of a decision to include them. The Secretary has adequately justified the minor changes made from the previous regulations. Indeed, he further amended the proposed rule to respond to the most significant concerns raised by commenters. The Court cannot find any abuse in the exercise of the Secretary's discretion. NWF's challenges in this area must be rejected. Section 515(b)(24) directs that surface coal mine operators must "to the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable;" 30 U.S.C.A. § 1265(b)(24). This is one of the numerous environmental protection performance standards that surface coal mine operators must meet to comply with the Act. In § 516, which spells out performance standards for the surface effects of underground coal mining operations, subsection (b)(11) repeats the same language on fish and wildlife. 30 U.S.C.A. § 1266(b)(11). When the Secretary first published rules in 1979, he levied upon mining operators three general requirements in order to accomplish this mandate. Two of these require an operator to deal with fish and wildlife matters in the application for a mining permit. First, the Secretary directed that each application for a surface mining permit include information about fish and wildlife resources in the area to be mined and surrounding land. 30 C.F.R. § 779.20, Fish and wildlife resources information, published in 44 Fed. Reg. 15354 (March 13, 1979). In particular, the rule directed that the applicant prepare a "study of fish and wildlife and their habitats[.]"17 Second, each application for a surface mining permit had to include a fish and wildlife plan. The plan had to describe how the operator would "minimize disturbances and adverse impacts on fish and wildlife and related environmental values" and how "enhancement of these resources will be achieved, where practicable." 30 C.F.R. § 780.16, Fish and wildlife plan, published in 44 Fed. Reg. 15357 (March 13, 1979). The third means of accomplishing the Act's mandate for fish and wildlife did not involve the application for a mining permit. Rather, the Secretary "fleshed out" the statutory performance standard in § 515(b)(24) by promulgating detailed regulatory performance standards for "Protection of fish, wildlife, and related environmental values." 30 C.F.R. § 816.97 (1979). The fish and wildlife plans in § 780.16 had to be consistent with these performance standards. NWF's challenges in this area deal only with the Secretary's rules on the information and plan that must be included in the permit application, not with the substantive performance standards. Specifically, NWF attacks amendments the Secretary made in 1987 when he combined § 779.20, the rule on fish and wildlife resources information, with § 780.16, the rule on fish and wildlife plans. 52 Fed. Reg. 47,352 (Dec. 11, 1987). The Court first considered these rules when it decided an industry challenge to their original 1979 version in PSMRL I, Round I, 14 Env't Rep. Cas. at 1099. In essence, the Court held that because the section of the statute dealing with permits did not refer to fish and wildlife, the Secretary could not require that applications include information on fish and wildlife resources or plans for protecting fish and wildlife. The Court remanded the rules, and, in response, the Secretary suspended them. 45 Fed. Reg. 51547 (Aug. 4, 1980).18 On an expedited appeal of a broader question, the Court of Appeals later held en banc that the Secretary does have the general rulemaking authority to require that similar information must be in a permit application. In re Permanent Surface Mining Regulation Litigation, 653 F.2d at 527. In 1984, in PSMRL II, Round II, 21 Env't Rep. Cas. at 1748, this Court held that the effect of the Appeals Court ruling was to reinstate the remanded 1979 fish and wildlife regulations. After reinstating the rules, the Secretary announced a proposal to amend §§ 779.20 and 780.16, as well as their underground mining counterparts. 51 Fed. Reg. 19498 (May 29, 1986). The Secretary combined the two rules into a new, single § 780.16, rearranged the order of several requirements, and modified slightly certain others. The relevant parts of the 1979 rules and the final 1987 combined rule appear below: § 779.20 Fish and wildlife resources information. [1979] (a) Each application shall include a study of fish and wildlife and their habitats within the proposed mine plan area and the portions of the adjacent areas where effects on such resources may reasonably be expected to occur. (b) Prior to initiating such studies, the applicant shall contact the regulatory authority to determine what fish and wildlife resources information will be required. (c) The regulatory authority, in consultation with the appropriate State and Federal fish and wildlife management, conservation, or land management agencies having responsibilities for fish and wildlife or their habitats, shall determine the level of detail and the areas of such studies, according to — (1) Published data and other information; (2) Site-specific information obtained by the applicant; and, (3) Written guidance obtained from agencies consulted. § 780.16 Fish and Wildlife plan. [1979] (a) Each application shall contain a fish and wildlife plan, consistent with [the performance standard for protecting fish and wildlife] which provides: (1) A statement of how the plan will minimize disturbances and adverse impacts on fish and wildlife and related environmental values during surface coal mining and reclamation operations, and how enhancement of these resources will be achieved, where practicable. The plan shall cover the mine plan area and portions of adjacent areas as determined by the regulatory authority . . . . (b) A statement explaining how the applicant will utilize impact control measures, management techniques, and monitoring methods to protect or enhance the following, if they are to be affected by the proposed activities: (1) Threatened or endangered species of plants or animals listed by the Secretary under the Endangered Species Act of 1973 . . . and their critical habitats; (2) Species such as eagles, migratory birds or other animals protected by State or Federal law, and their habitats; or other species identified through the consultation process pursuant to § 779.20; or (3) Habitats of unusually high value for fish and wildlife, such as wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, reproduction, and nursery areas, and wintering areas. § 780.16 Fish and wildlife information. [Current amended] (a) Resource information. Each application shall include fish and wildlife resource information for the permit area and adjacent area. (1) The scope and level of detail for such information shall be determined by the regulatory authority in consultation with State and Federal agencies with responsibilities for fish and wildlife and shall be sufficient to design the protection and enhancement plan required under part (b) of this section. (2) Site specific resource information necessary to address the respective species or habitats shall be required when the permit area or adjacent area is likely to include: (i) Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary under the Endangered Species Act of 1973 . . . or those species or habitats protected by similar State statutes; (ii) Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, or reproduction and wintering areas; (iii) Other species or habitats identified through agency consultation as requiring special protection under State or Federal law. (b) Protection and enhancement plan. Each application shall include a description of how, to the extent possible using the best technology currently available, the operator will minimize disturbances and adverse impacts on fish and wildlife and related environmental values, including compliance with the Endangered Species Act, during the surface coal mining and reclamation operations and how enhancement of these resources will be achieved where practicable. This description shall — (1) [be consistent with the performance standard]; (2) Apply, at a minimum, to species and habitats identified under paragraph (a) of this section; and (i) Protective measures that will be used during the active mining phase of operation. Such measures may include the establishment of buffer zones, the selective location and special design of haul roads and powerlines, and the monitoring of surface water quality and quantity; and (ii) Enhancement measures that will be used during the reclamation and postmining phase of operation to develop aquatic and terrestrial habitat. Such measures may include restoration of streams and other wetlands, retention of ponds and impoundments, establishment of vegetation for wildlife food and cover, and the replacement of perches and nest boxes. . . . (c) Fish and Wildlife Services Review. . . . NWF challenges both part (a) of the combined § 780.16, that is the section requiring fish and wildlife resources information, and part (b), which requires the protection and enhancement plan. (a) Fish and wildlife resources information. NWF has two complaints about the resources information section, as follows: (1) the old § 779.20 required a study, while its successor, § 780.16(a), does "not require studies and allow[s] regulatory authorities almost total discretion regarding minimum standards for fish and wildlife resource information, except in three specific categories involving critical and sensitive habitats. NWF's Mem. in Supp. at 30-31; (2) The new rule drops "the previous requirement for sitespecific habitat resources information" except in the three categories cited above. Id. at 31. Overall, however, the gist of NWF's challenge to the rules is that the Secretary "failed . . . to meet the standards established by the Court of Appeals for decisions not to establish national standards." Id. at 30. At the outset, NWF devotes some time to arguing that the Court of Appeals has established a test to gauge whether the Secretary may properly decline to specify by regulation minimum national standards for achieving certain of the Act's goals.19 See NWF v. Hodel, 839 F.2d at 734-736, analyzed in NWF's Mem. in Supp. at 28-30. NWF argues that the justification for the challenged § 780.16 does not pass the test. The chief difficulty with NWF's argument is that if the Court of Appeals did set up such a test, these rules do not have to pass it. As the Secretary points out, the section of NWF v. Hodel that plaintiffs cite does not deal with what must be in an [sic] permit application but with performance standards; that is, the rules on the substantive results that coal operators must achieve to comply with the Act. NWF v. Hodel, 839 F.2d at 734-36 (reviewing revised regulations on the performance standards that coal operators must meet for backfilling and grading, e.g., 30 C.F.R. §§ 816.100 and 101 (contemporaneous reclamation), § 816.102 (terracing), and §§ 816.104 and 105 (thin and thick overburden)). NWF's arguments might have more merit if they addressed an alleged flaw in the performance standards for fish and wildlife, 30 C.F.R. § 816.97. But, as the Secretary notes, these are not at issue here. Therefore, this line of attack peters out.20 These rules cannot [20 ELR 21187] be struck down for failing to pass the test of when national standards are unneeded.21 Second, the Court is not persuaded that the Secretary has made significant changes in the new rule. A careful reading of the former and current rules confirms this. While the Secretary has combined two rules into one, added more detailed requirements in some instances, and altered other language, the Court believes that the different words add up to much the same thing. NWF argues that any change or relaxation of the former rules heralds environmental apocalypse. But the Court need not adopt such a view uncritically. Reading NWF's brief carefully, it appears that NWF especially dislikes that the operator need no longer undertake "a study of fish and wildlife and their habitats in the proposed mine plan area" but rather now must only include fish and wildlife resources information. Reading between the lines in the administrative record, it appears that NWF fears that dropping the word study means that operators will not develop "site-specific" information in every case. In the preamble to the proposed rule, the Secretary asserted that he did not "believe that site-specific information will always be needed." 51 Fed. Reg. 19498, 19500 (May 29, 1986). The Secretary's theory is that existing information in the hands of other government agencies may be all that is necessary. Several commenters, including the U.S. Fish and Wildlife Service, disputed that other sources of information besides on-site studies would be sufficient in all cases. In response, the Secretary noted that "[m]any commenters suggested that [the Secretary] more clearly indicate when site-specific fish and wildlife resource information would be required." 52 Fed. Reg. 47352, 47354 (Dec. 11, 1987). Consequently, the Secretary added the present section (a)(2), which formally requires site-specific information in three particularly important instances. Further, the Secretary stated that he also altered the rule to provide th at the scope and level of detail of the information requirejd shall be determined by the state regulatory authority in consultation with state and federal fish and wildlife authorities. He also added language that the information must be sufficient to complete the fish and wildlife protection plan. In consequence, site-specific studies will always be required in the mining areas that threaten animals that most need protection. In some situations, the studies also may still be required of an operator when the permit does not involve one of the three occasions when site-specific information is mandated. These changes undercut NWF's argument that the Secretary has given unbridled discretion to the regulatory authorities to decide what information about fish and wildlife resources is enough. In reviewing this, the Court concludes that NWF has failed to carry its argument that the Secretary has made material changes in promulgating the new rule. Analysis of the text simply does not support this contention. Moreover, the Secretary has responded to concerns raised by commenters about the fairly limited changes that have been made. NWF only cites comments that favor its deathknell views, but the Administrative Record contains comments arguing against the need for premining information and a postmining plan in the permit application. Although industry representatives wanted no rules, so did some public agencies. See, e.g., State of West Virginia Depart of Energy, Division of Mines and Minerals, Ad. Rec. at 8; Commonwealth of Pennsylvania Department of Environmental Resources, Ad. Rec. at 141. Neither of these commenters felt that a premining study or postmining plan are needed to see that the coal operator met the substantive duty of complying with the Act's performance standard on fish and wildlife. The Court finds that the Secretary has struck a prudent balance between the competing views presented to him. This brings the Court to its last consideration. As the Secretary points out, the Act does not mandate that fish and wildlife information and a protection plan be required in a permit application. The Secretary nevertheless conceived this requirement in 1979. As the Court of Appeals noted, the Secretary is "permitted" to adopt such regulations. NWF v. Hodel, 839 F.2d at 735 n.58 (emphasis in original). When permitted, but not required to do something, the Secretary has substantial discretion in fashioning his rules. Obviously, the Secretary continues to think these rules are, with minor changes, a good way to ensure that the Act's substantive fish and wildlife requirement is enforced. In this situation, the Secretary should be accorded great deference, because he is not dealing with something specifically referred to in the Act. It should also be recalled that the Act's language in this area is thrice qualified. The performance standard in § 515(b)(24) uses the phrases "to the extent possible" and "using the best technology currently available." It later states that enhancement of fish and wildlife resources is to be achieved "where practicable." This argues further for the Secretary's substantial discretion, particularly when he is not discussing the regulatory performance standard itself, but a rule on information and a plan to accomplish a qualified performance standard. In sum, the Court cannot say that part (a) of this rule contravenes any express or implied requirement in the Act, and it does not strike the Court as irrational or arbitrary. The Court will uphold part (a) of § 780.16 and its underground mining counterpart. Here again, NWF complains of a lack of national standards. According to the environmentalist plaintiffs, "[t]he Secretary's fish and wildlife regulations also fail to establish any minimum standards for protection and enhancement of fish and wildlife." NWF Mem. in Supp. at 34-35. In truth, this miscasts the facts. As NWF should know, this rule is not the place where the Secretary promulgates minimum standards for protection and enhancement of fish [and] wildlife. Those standards would be and are found in § 816.97, the rule on performance standards for the protection and enhancement of fish and wildlife. In § 780.16, the most that might legitimately be expected is minimum standards on a fish and wildlife plan. This Court already has rejected NWF's argument on minimum standards when discussing above part (a) of the rule. NWF advances nothing new in this regard. Therefore, this Court will reject again the argument that the Court of Appeals's discussion of national or minimum standards for alluvial valley floors in Hodel has any bearing on § 780.16. A textual analysis of the former and current requirements for a fish and wildlife plan also shows that there is little difference between the old rule and the current one that NWF challenges. The main body of paragraph (b) of the current rule essentially restates in mildly different language what had been in subparagraphs (1) and (2) of paragraph (a) of the former § 780.16. Indeed, both versions are largely couched in the language of the Act itself. The sole apparent distinction is that the former rule required that when an operator asserted that it could not enhance fish and wildlife, it would have to explain to the satisfaction of the regulatory authority why it is not practicable to do. A similar requirement is levied in the last sentence of the current § 780.16(b)(3)(ii), except that it does not specifically state that the explanation must satisfy the regulatory authority. The Court does not deem this a significant change, because the operator's explanation ultimately must satisfy the regulatory authority or the authority ought not to approve a permit. Continuing the comparison, the former rule specifically listed in subparagraphs (b)(1), (2), and (3) three circumstances when the plan would have to discuss the protection measures contemplated. The current rule requires discussion of essentially the same three categories in the current subparagraph (b)(2). Indeed, the new rule is more comprehensive. Whereas the old regulation required discussion in the plan when certain fish and wildlife were to "be affected by the proposed [coal mining] activities," the new rule requires discussion when the "permit area or adjacent area is likely to include" the animals. (Emphasis added.)22 Further, the new rule contains [20 ELR 21188] an extensive list of specific possible protection and enhancement measures as examples of what may be discussed in the plan. 30 C.F.R. § 780.16(b)(3)(i) and (ii). The old rule had no such listing. In this regard, NWF borders on the frivolous when it argues the new rule does not give enough guidance, such that the Court should strike the regulation down. Last, the Court recalls its statement on the similar issue of the contents of a subsidence control plan dealt with in NWF III, Round I opinion: [I]t must be remembered that the parties are not disputing whether underground miners have duties to prevent, to measure, or to remedy [a problem] or its harms. The parties are disputing what should be in a plan that describes how to accomplish certain duties. . . . Bureaucrats and their policy analyst counterparts in the quasi-private sector may disagree over plans for procedures. But in this instance, what should be included in the procedural part of the plan is a matter for the Secretary's sound discretion. NWF III, Round I, 733 F. Supp. at __. In short, NWF's argument on the fish and wildlife plan has even less merit than its view on fish and wildlife resources information. Environmentalist plaintiffs have argued for an improper standard, have overstated the nature and degree of the changes in the challenged rule, and have failed to impeach the Secretary's exercise of his bountiful discretion in this area. The Court will uphold the current version of 30 C.F.R. § 780.16. In conclusion, the court makes the following rulings: (1) the Secretary's regulations at 30 C.F.R. § 816.116(c)(4) (1989) and 30 C.F.R. § 817.116(c)(4) (1989) concerning selective husbandry practices and their approval are not arbitrary, capricious or otherwise inconsistent with law, and have been promulgated lawfully, and therefore, the environmentalist and industry plaintiffs' respective motions for summary judgment in this regard must be denied, and the federal defendants' and intervenor-industry defendants' respective cross-motions for summary judgment in this regard will be granted; (2) the Secretary's regulations at 30 C.F.R. § 816.116(b)(3)(i) (1989) and 30 C.F.R. § 817.116(b)(3)(i) (1989) concerning approval of minimum stocking and planting arrangements are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully, and therefore, the industry plaintiffs' motion for summary judgment in this regard must be denied, and the federal defendants' cross-motion for summary judgment in this regard will be granted; (3) the Secretary's regulations at 30 C.F.R. § 816.116(b)(3)(ii) (1989) and 30 C.F.R. § 817.116(b)(3)(ii) (1989) requiring 80% of the trees and shrubs to have been in place for 60% of the applicable minimum period of responsibility are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully, and therefore, the environmentalist plaintiffs' motion for summary judgment in this regard must be denied, and the federal defendants' and intervenor-industry defendants' respective cross-motions for summary judgment in this regard will be granted; (4) the Secretary's regulations at 30 C.F.R. § 816.116(c)(2) (1989) and 30 C.F.R. § 817.116(c)(2) (1989) permitting vegetation parameters for grazing or pasture land and cropland to be met during the growing seasons of any two years of the responsibility period except the first are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully, and therefore, the environmentalist plaintiffs' motion for summary judgment in this regard must be denied, and the federal defendants' and intervenor industry defendants' respective cross-motions for summary judgment in this regard will be granted; (5) the Secretary's action in deleting the former 30 C.F.R. § 817.41(b)(2) and the phrase "restore approximate premining recharge capacity" from 30 C.F.R. § 784.14(g) was not arbitrary, capricious, or otherwise inconsistent with law and was promulgated lawfully, and therefore, the environmentalist plaintiffs' motion for summary judgment in this regard must be denied, and the federal defendants' and intervenor-industry defendants' respective cross-motions for summary judgment in this regard will be granted; and, (6) the Secretary's regulations at 30 C.F.R. § 780.16 (1989) and 30 C.F.R. § 784.21 (1989) for fish and wildlife resources information and for a fish and wildlife plan are not arbitrary, capricious, or otherwise inconsistent with law and have been promulgated lawfully, and therefore, the environmentalist plaintiffs' motion for summary judgment in this regard must be denied and the federal defendants' and intervenor-industry defendants' respective cross-motions for summary judgment in this regard will be granted. As a consequence of the foregoing rulings, the Court will grant the federal defendants' and the intervenor-industry defendants' respective cross-motions for summary judgment in their entirety. The Court will also deny industry and environmentalist plaintiffs' respective motions for summary judgment in their entirety. An appropriate order accompanies this opinion. This matter came before the Court on cross-motions for summary judgment. Upon consideration of the motion for summary judgment filed by plaintiffs National Wildlife Federation, et al., the motion for summary judgment filed by plaintiffs American Mining Congress, et al., the cross-motions for summary judgment filed by the federal defendants and the intervenor-defendants, the replies thereto, the entire record herein, and for the reasons stated in the accompanying memorandum opinion, it is by the Court this 8th day of June 1990 ORDERED that the motion for summary judgment filed by plaintiffs National Wildlife Federation, et al., be, and it is hereby is, denied in all respects; and it is further ORDERED that the motion for summary judgment filed by plaintiffs American Mining Congress, et al., be, and it hereby is, denied in all respects; and it is further ORDERED the defendants' and intervenor-defendants' cross-motions for summary judgment be, and they hereby are, granted. 1. Defendants are the U.S. Secretary of the Interior, the U.S. Department of the Interior, and the Director of the Office of Surface Mining Reclamation and Enforcement, an agency within the Interior Department charged with implementing SMCRA (collectively "the government" or the "Secretary"). The plaintiffs that bring this action on behalf of supposed "environmentalist" interests are collectively referred to below as "NWF," after the lead environmentalist plaintiff, the National Wildlife Federation. The two other plaintiffs, associations said to represent the coal mining industry, the National Coal Association and the American Mining Congress, are referred to below as "industry." 2. The Secretary published interim regulations under the Act in 1977, and this court ruled on challenges to them in two opinions, In re Surface Mining Regulation Litigation, 452 F. Supp. 327 (D.D.C. 1978) and In re Surface Mining Regulation Litigation, 456 F. Supp. 1301 (D.D.C. 1978). These opinions were affirmed in part and reversed in part by In re Surface Mining Regulation Litigation, 627 F.2d 1346 [10 ELR 20526] (D.C. Cir. 1980). In 1979, the Secretary published permanent program regulations. Industry and environmentalist groups challenged hundreds of aspects of these, which this court ruled on in three opinions, In re Permanent Surface Mining Regulation Litigation I, 13 Env't Rep. Cas. 1586 [9 ELR 20720] (D.D.C. 1979) (preliminary injunction); In re Permanent Surface Mining Regulation Litigation I, No. 79-1144, Mem. Op. [10 ELR 20208] (D.D.C. Feb. 26, 1980), 14 Env't Rep. Cas. 1083 ("PSMRL I, Round I"); and In re Permanent Surface Mining Regulation Litigation I, No. 79-1144, Mem. Op. (D.D.C. May 16, 1980), 19 Env't Rep. Cas. 1477 ("PSMRL I, Round II"). One aspect of these was rejected on appeal. In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 [11 ELR 20941] (D.C. Cir.) (en banc), cert. denied, 454 U.S. 822 (1981). By this time, a new Presidential Administration had taken office, and the Secretary of Interior, James Watt, decided to revamp the permanent regulations under SMCRA. As a result, the Court of Appeals remanded the entire matter back to the Secretary. Secretary Watt's program also saw extensive challenges, and the court ruled on these in In re Permanent Surface Mining Regulation Litigation II, Round I, No. 79-1144, Mem. Op. [14 ELR 20617] (D.D.C. July 6, 1984), 21 Env't Rep. Cas. 1193 ("PSMRL II, Round I"); In re Permanent Surface Mining Regulation Litigation II, Round II, No. 79-1144, Mem. Op. [15 ELR 20481] (D.D.C. Oct. 1, 1984), 21 Env't Rep. Cas. 1724 ("PSMRL II, Round II"); In re Permanent Surface Mining Regulation Litigation II, Round III-VER, No. 79-1144, Mem. Op. [15 ELR 20494] (D.D.C. Mar. 22, 1985), 22 Env't Rep. Cas. 1557 ("PSMRL II, Round III-VER"); and, In re Permanent Surface Mining Regulation Litigation II, Round III, 620 F. Supp. 1519 [16 ELR 20296] (D.D.C. 1985) ("PSMRL II, Round III"). While these were on appeal, the Court of Appeals remanded the case for this court to address questions of standing, which were decided in In re Permanent Surface Mining Regulation Litigation II, No. 79-1144, Mem. Op. (D.D.C. Aug. 10, 1987). The Court of Appeals ultimately affirmed in part and reversed in part these five rulings in Nat'l Wildlife Fed'n v. Hodel, 839 F.2d 694 [18 ELR 20646] (D.C. Cir. 1988). 3. For the surface effects of underground coal mine operations, there is a counterpart to § 515(b)(19), which requires underground mine operators to: establish on regraded areas and all other lands affected, a diverse and permanent vegetative cover capable of self-regeneration and plant succession and at least equal in extent of cover to the natural vegetation of the area; SMCRA 516(b)(6), 30 U.S.C.A. § 1266(b)(6). There is no underground mining counterpart in the statute to the five- and ten-year periods of responsibility for revegetation that surface mining operators must assume, as spelled out in SMCRA § 515(b)(20), 30 U.S.C.A. § 1265(b)(20). 4. There are counterpart rules for underground mines at 30 C.F.R. § 817.111-§ 817.116 containing the same requirements as are levied upon surface mines in the cited regulations. 5. Industry has made it clear that it is challenging both of the parallel regulations for surface and underground mining operations, 30 C.F.R. § 816.116(c)(4) (surface) and 30 C.F.R. § 817.116(c)(4) (underground), as well as 30 C.F.R. 816.116(b)(i) (surface) and 30 C.F.R. § 817.116(b)(i) (underground). Although NWF does not state it very directly, the Court gathers that the environmentalists mean their challenges to apply to both the surface rules and the underground counterparts at 30 C.F.R. § 816.116(c)(4) and 30 C.F.R. § 817.116(c)(4), along with 30 C.F.R. § 816.116(b)(3)(ii) (surface) and 30 C.F.R. § 817.116(b)(3)(ii) (underground), and 30 C.F.R. § 816.116(c)(2) (surface) and 30 C.F.R. § 817.116(c)(2) (underground). Through the discussion below on revegetation issues, the Court will refer only to the surface mining rule at § 816.116, but the remarks should be taken to apply to the underground mining rule as well. 6. Or, actually, his designee. 7. It is worth noting here that this approval requirement only applies to one of a number of possible postmining uses. Such approval is not required when the postmining use is cropland or pasture and grazing land. Cf. 30 C.F.R. § 816.116(b)(1) and (b)(2). 8. Further, the specific examples that industry uses to buttress its negative implication argument may be distinguished. In particular, the reference to § 513's role for comments on permitting has little application here. That rule provides for the public to comment on specific permits. While it is true that it does not provide that commenters may or must approve permits, that is not the issue here. The question here relates to one, limited aspect of setting minimum conditions for determining whether the Act's performance standards have been met. The Act's elaborate permitting requirements and its performance standards are completely different, though complementary, parts of Congress' multi-pronged regulatory scheme. The Court also draws another conclusion from industry's citations to the Act's performance standards, §§ 515 and 516, where approval or consultation with the Corps of Engineers, the EPA, or the Department of Labor are [sic] required. In the Court's view, the inference is that Congress intended the Secretary to make use of the expertise of agencies whose missions have long involved them in technical considerations similar to those the Secretary has to take up in implementing SMCRA. Far from being a proscribed practice, Congress may be deemed through these specific requirements to have wanted to encourage the Secretary to make use of experienced public agencies. In this, the Secretary has done just that. 9. Thus, this new rule applies to both land with a five-year period and land with a ten-year period of responsibility. 10. The previous rule, quoted above, spoke in terms of 80% of the trees being in place for three growing seasons in an area with a five-year period of responsibility. The rule for areas with a ten-year responsibility was 80% of the trees in place for eight growing seasons, which would be expressed as 80%/80%. 11. The Court assumes that a growing season approximates a year, an assumption the Secretary also appears to have made, and which plaintiffs have not disputed. If a growing season were less than a year, then the Secretary's new 60% terminology would have the effect of requiring that the 80% of the trees and shrubs be in place for a longer time than the previous rule did. 12. This part of the discussion only applies to trees in areas with five-year periods of responsibility. In areas with ten-year periods, the Secretary has effectively dropped the time the trees and shrubs must be in place from eight years to six years. NWF has not separately challenged this two-year change. 13. To be accurate, NWF contends for this only when an operator replants on land that is to be used for fish and wildlife habitat, recreation, shelter belts, or forestry products. 14. It appears that the Secretary retained a one-year period for other postmining land uses. NWF's challenge deals only with the grazing, pasture, and cropland part of the rule. 15. The Secretary also published a rule, 30 C.F.R. § 784.14(g), which dealt with the information about hydrology reclamation that an operator seeking a mining permit had to include in his application. The information required included a hydrology reclamation plan. Specifically, the rule stated that the plan had "to include measures to be taken to: . . . restore approximate premining recharge capacity." 16. The Secretary had not suspended the requirement that underground operators include a plan to restore recharge capacity in their permit applications. In soliciting comments to create a record on the recharge restoration issue, the Secretary did indicate that one option would be to delete this requirement from the permit application, as well as to drop it from the performance standards. As discussed below, he ultimately did both. 17. Each of the rules for surface mining operations has an underground mining counterpart. To try to reduce confusion, the Court will adopt the parties' practice of referring only to the version governing surface mining operations. The Court's opinion should be understood to refer to both surface and underground mining rules. A counterpart requirement to § 779.20's wildlife resources information appeared at 30 C.F.R. § 783.20 (1979) for an underground mining operation. Similarly, the underground mining counterpart to § 780.16's wildlife protection plan appeared at 30 C.F.R. § 784.21. The underground mining performance standard for wildlife is at 30 C.F.R. § 817.97. The Secretary's 1987 amendments at issue here made parallel changes to §§ 780.16 and 784.21, abolishing §§ 779.20 and 783.20. 18. In discussing the structure of the regulatory scheme Congress devised in SMCRA, the Court of Appeals has noted: After an initial period of direct regulation by the [federal] Secretary [of Interior], the Act contemplates a continuing partnership between the status and the federal government, with the Secretary providing oversight, advice, and the back-up authority, and the states bearing the major responsibility for implementation of the Act. The crucial step in accomplishing this transition is a state's submission of its proposed regulatory program to the Secretary for his approval. The Secretary may only approve the state program if he finds it capable of carrying out the exacting provisions of the Act, and consistent with his own regulations. Whether regulation is under federal authority or an approved state program, persons wishing to engage in surface mining must obtain a permit from the regulatory authority. Permits may not be granted unless the applicant successfully carries the burden of establishing full compliance with the applicable program, and the applicant must submit detailed information from which the regulatory authority and interested citizens may judge compliance. [The Act's section on permits] lists a large number of items which, "among other things" a permit application must contain. The Secretary's regulations for the permanent regulatory program, issued in March 1979, include rules concerning the content of acceptable state program submissions. These regulations specify minimum information that a state must require in a permit application, information which extends beyond the explicit information requirements detailed in the Act itself. In re Permanent Surface Mining Regulation Litigation, 653 F.2d at 516 (internal citations and footnotes omitted). In PSMRL I, Round I, industry challenged whether the Act gave the Secretary the authority at all to require any information in a permit if not specifically dictated by the Act itself. Industry also challenged each of the Secretary's specific requirements. The Court upheld the Secretary's general authority to issue regulations governing the process of issuing mining permits. PSMRL I, Round I, 14 Env't Rep. Cas. at 1095-96. But, the Court remanded the specific rules dealing with what the permit application had to include on fish and wildlife. Id. at 1098. In the meantime, one of the industry plaintiffs, Peabody Coal Company, appealed the broader question, resulting in the decision, quoted above, in In re Permanent Surface Mining Regulation Litigation, 653 F.2d at 527, that "the Act's explicit listings of information required of permit applicants are not exhaustive, and do not preclude the Secretary from requiring the states to secure additional information needed to ensure compliance with the Act." 19. In particular, these goals are expressed in the performance standards set out in §§ 515 and 516 of the Act, 30 U.S.C.A. §§ 1265 and 1266, for surface and underground mining operations, respectively. 20. In a footnote to its argument on this subject, environmentalist plaintiffs refer to an earlier section of NWF v. Hodel that does, indeed, deal with a regulation on what must be included in a permit application. NWF's Mem. in Supp. at 34 n.18 (analyzing the Court of Appeals' treatment of the 1986 version of 30 C.F.R. § 785.19(d), which spelled out information needed in a permit application for an operation that might affect an alluvial valley floor or water supplied to an alluvial valley floor). In the then-challenged alluvial valley floors rule, the Secretary revised what had formerly been "detailed specifications" of "technical data, information, and analysis" and "instead 'require[d] generally that sufficient information be submitted to enable the regulatory authority to make the necessary determinations.'" NWF v. Hodel, 839 F.2d at 729 (quoting 48 Fed. Reg. 29814 (1983)). To this end, NWF points to the language in the rule currently before the court that the "scope and level of detail for such information [about fish and wildlife resources] . . . shall be sufficient to design the protection and enhancement plan required . . . ." 30 C.F.R. § 780.16(a)(1). NWF argues that because the Court of Appeals affirmed a remand of thealluvial valley floor regulation, this Court should remand similar language on fish and wildlife. The Court disagrees. First, the rationale behind the Court of Appeals decision rested on the Secretary's failure to explain the changes in the rules. As the Court of Appeals noted in footnote 51, there was a dramatic change between the two alluvial valley floor rules. All manner of once-required technical material was deleted in favor of general language. There is nowhere near such a change in the fish and wildlife rules. Perhaps most important, the Court of Appeals specifically questioned the following part of the Secretary's alleged justification for the change in the alluvial valley floor rule: "Most of the eliminated material will continue to be available in guidelines and is the type of information likely to be valuable in assisting the regulatory authorities in making its determinations." NWF v. Hodel, 839 F.2d at 730 (quoting 48 Fed. Reg. 29802-03 (1983)) (entire quotation emphasized in Hodel, additional emphasis supplied). The Secretary here has not provided such a novel juxtaposition of contradictory statements on the rules for fish and wildlife. For these reasons, the Court finds that this section of the Hodel opinion does not require that the fish and wildlife rule be remanded. 21. This preliminary finding only states that the rules in question need not pass this test. NWF appears to argue that the previous rules somehow did establish national standards, while the new ones do not. Below, the Court concludes that the new fish and wildlife rules do not work great change in the original 1979 version. This next conclusion should be understood to carry the implicit conclusion that to the extent the old rules did establish national standards, the Court necessarily finds that similar, largely unchanged rules do, too. 22. To continue the comparison further, former § 780.16(b)(1) called for special discussion in the plan of "Threatened or endangered species of plants or animals listed by the Secretary under the Endangered Species Act . . . and their critical habitats." The current rule at (a)(2)(i) is more inclusive; it states: "Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary under the Endangered Species Act of 1973 . . . or those species or habitats protected by similar state statutes." The old (b)(2) referred to "Species such as eagles, migratory birds or other animals protected by State or Federal law, and their habitats; or other species identified through the consultation process" with state and federal fish and wildlife authorities. The current rule is about the equal of this, when the last clause in (a)(2)(i) quoted above, "or those species or habitats protected by similar state statutes" is combined with the language in subparagraph (a)(2)(iii) "Other species or habitats identified through agency consultation as requiring special protection under State or Federal law." The third instance when the plan had to include a special discussion is: "Habitats of unusually high value for fish and wildlife, such as wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, reproduction and nursery areas, and wintering areas," (old rule); "Habitats of unusually high value for fish and wildlife areas such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, or reproduction and wintering areas," (new rule). The Court is hard put to see the big difference between these standards for the plan. 20 ELR 21175 | Environmental Law Reporter | copyright © 1990 | All rights reserved |