Cooperative Agreement

The Governor of the State of West Virginia (the Governor) and the Secretary of the Department of the Interior (the Secretary) enter into a Cooperative Agreement (Agreement) to read as follows:

Article I: Introduction, Purposes, and Responsible Agencies A. Authority

This Agreement is authorized by section 523(c) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1273(c), which allows a State with a permanent regulatory program approved by the Secretary under section 503 of SMCRA, 30 U.S.C. 1253,to.S.C. 1291(4). This Agreement provides for State regulation of coal exploration operations not subject to 43 CFR part 3400, and surface coal mining and reclamation operations on Federal lands within West Virginia, except for those activities reserved for the Bureau of Land Management (BLM) involving leased Federal coal subject to 43 CFR parts 3400 through 3480, and the Office of Surface Mining, Reclamation and Enforcement (OSMRE) and the Secretary under 30 CFR part 746.

This Agreement provides for State regulation of coal exploration and surface mining activities consistent with SMCRA, the Federal lands program (30 CFR parts 740, 745, and 746), and the approved West Virginia regulatory program (State program). This Agreement does not abridge any rights that West Virginia may have under State law to regulate coal exploration activities on non-Federal, non-Indian lands within the State.

B. Purposes

The purposes of this Agreement are to (a) foster Federal-State cooperation in the regulation of surface coal mining and reclamation operations and coal exploration operations not subject to BLM's authority under 43 CFR parts 3400 through 3480 and OSMRE's and the Secretary's authority under 30 CFR part 746, (b) minimize intergovernmental duplication of effort, and (c) provide for uniform and effective application of the State program on all non-Indian lands within West Virginia in accordance with SMCRA, the State program, and this Agreement.

C. Responsible Administrative Agencies

The West Virginia Department of Environmental Protection (DEP) will be responsible for administering this Agreement on behalf of the Governor under the approved West Virginia Permanent Regulatory Program. OSMRE will administer this Agreement on behalf of the Secretary, in accordance with the regulations in 30 CFR Chapter VII.

Article II: Effective Date

After being signed by the Secretary and the Governor, this Agreement will take effect 30 days after publication in the Federal Register as a final rule. This Agreement will remain in effect until terminated as provided in Article XI or superseded by amendment in accordance with Article XIII of this Agreement.

Article III: Definitions

The terms and phrases used in this Agreement that are defined in SMCRA, 30 CFR 700.5, 701.5, and 740.5, the State program, including the approved West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) W. Va. Code § 22-3-1, et seq., and The Office of Explosives and Blasting, W. Va. Code § 22-3A-1, et seq., and the rules and regulations promulgated pursuant to those Acts, will be given the meanings set forth in said definitions. Where there is a conflict between the above referenced State and Federal definitions, the definitions used in the approved State program will apply, except for: (1) instances in which a term conflicts with the Secretary's remaining responsibilities under the Act and other laws; and (2) valid existing rights (VER) requests pursuant to 30 CFR 761.16. The Federal VER definition will apply when making VER determinations for those protected areas identified in 30 CFR 761.11(a) and (b). The term “coal exploration operation(s)” used in this Agreement excludes coal exploration operations subject to 43 CFR part 3400 regardless of whether it is so specified.

Article IV: Applicability

In accordance with the Federal lands program, the laws, regulations, terms and conditions of the State program, as conditionally approved effective January 21, 1981, 30 CFR part 948, or hereinafter amended in accordance with 30 CFR 732.17, are applicable to Federal lands in West Virginia, except as otherwise stated in this Agreement, SMCRA, 30 CFR 740.4, 740.11(a), and 745.13, and other applicable laws, Executive Orders, or regulations.

Orders and decisions issued by DEP in accordance with the State program that are appealable must be appealed to the State Surface Mine Board. Orders and decisions issued by the Secretary or OSMRE that are appealable must be appealed to the Department of the Interior's Office of Hearings and Appeals.

Article V: General Requirements

The Governor and the Secretary affirm that they will comply with all the provisions of this Agreement.

A. Authority of State Agency

DEP has and will continue to have the authority under State law to carry out this Agreement.

B. Funding

Upon application by DEP and subject to the availability of appropriations, OSMRE will provide the State with the funds to defray the costs associated with carrying out its responsibilities under this Agreement as provided in section 705(c) of SMCRA, the grant agreement, and 30 CFR 735.16. Such funds will cover the full cost incurred by DEP in carrying out these responsibilities, provided that such cost does not exceed the estimated cost the Federal government would have expended on such responsibilities in the absence of this Agreement.

The amount of the grant will be determined using the procedures specified in applicable Federal guidance documents, such as the Federal Assistance Manual Chapter 3-10 and Appendix III.

If DEP applies for a grant but sufficient funds have not been appropriated to OSMRE, OSMRE and DEP will promptly meet to decide on appropriate measures that will ensure that coal exploration operations and surface coal mining and reclamation operations on Federal lands within West Virginia are regulated in accordance with the State program. If an agreement cannot be reached, either party may terminate this Agreement in accordance with Article XI of this Agreement.

Funds provided to the DEP under this Agreement will be adjusted in accordance with the Office of Management and Budget Common Rule for Uniform Administration Requirements for Grants and Cooperative Agreements to State and Local Governments and must be reduced by the amount of permit application fees collected by the State that are attributable to the Federal lands covered by this Agreement.

C. Reports and Records

DEP will make regular reports to OSMRE containing information with respect to compliance with the terms of this Agreement pursuant to 30 CFR 745.12(d). Upon request, DEP and OSMRE will exchange information developed under this Agreement, except where prohibited by Federal or State law.

OSMRE will provide DEP with a copy of any final evaluation report prepared concerning State administration and enforcement of this Agreement. DEP comments on the report will be appended before transmission to the Congress, unless necessary to respond to a request by a certain date or to other interested parties.

D. Personnel

Subject to adequate appropriations and grant awards, the DEP will maintain the personnel necessary to fully implement this Agreement in accordance with the provisions of SMCRA, applicable regulations, the Federal lands program, and the approved State program.

E. Equipment and Facilities

Subject to adequate appropriations and grant awards, the DEP will ensure it has access to equipment, laboratories, and facilities with which all inspections, investigations, studies, tests, and analyses can be performed that are necessary to carry out the requirements of this Agreement.

F. Permit Application Fees and Civil and Criminal Penalties

The amount of the fee accompanying an application for a coal exploration operation or a surface coal mining and reclamation operation on Federal lands in West Virginia will be determined in accordance with the approved West Virginia State program. All permit application fees collected from operations on Federal lands will be considered program income to be retained by the State and must be deposited within the Department of Environmental Protection's Mining and Reclamation Operations Fund. Civil and criminal penalties and fines collected by DEP from operations on Federal lands must be deposited in State's Special Reclamation Fund and Special Reclamation Water Trust Fund. The financial status report submitted pursuant to 30 CFR 735.26 will include a report on the amount of permit fees, penalties, and fines collected from operations on Federal lands during the State's prior grant year.

Article VI: Review of Permit Application A. Responsibilities

DEP will assume primary responsibility for the analysis, review, and approval, disapproval, or conditional approval of the permit application component of the permit application package required by 30 CFR 740.13 for surface coal mining and reclamation operations or for coal exploration operations on Federal lands covered by this Agreement in West Virginia.

For proposals to conduct surface coal mining operations involving leased Federal coal, OSMRE is responsible for preparing a mining plan decision document in accordance with 30 CFR 746.13 and obtaining the Secretary's approval, disapproval, or approval with conditions. The mining plan includes: the permit application package; the resource recovery and protection plan reviewed and approved by BLM; information prepared in accordance with the National Environmental Policy Act of 1969 (NEPA); documentation assuring compliance with other Federal laws and regulations; comments from other Federal agencies and the public; findings and recommendations from BLM with respect to the resource recovery and protection plan; findings and recommendations from DEP with respect to the permit application and the approved State program; and findings and recommendations from OSMRE with respect to the additional requirements of the Federal lands program.

BLM is responsible for matters concerned exclusively with regulations under 43 CFR part 3400.

The Secretary reserves the right to act independently of DEP to carry out responsibilities under laws other than SMCRA or provisions of SMCRA not covered by the State program, and in instances of disagreement over SMCRA and the Federal lands program. The Secretary will, as provided by 30 CFR 740.4(a), make determinations under SMCRA that cannot be delegated to the State, some of which have been delegated to OSMRE.

The Secretary will concurrently carry out the responsibilities under 30 CFR 740.4(a) that cannot be delegated to DEP under the Federal lands program, the Mineral Leasing Act of 1920 (MLA), NEPA, this Agreement, and other applicable Federal laws. The Secretary will carry out these responsibilities in a timely manner and will avoid, to the extent possible, duplication of the responsibilities of the State, as set forth in this Agreement and the State program. The Secretary will consider the information in the permit application and, where appropriate, make decisions required by SMCRA, MLA, NEPA, and other Federal laws.

Where necessary to make the determination to recommend that the Secretary approve, disapprove, or approve with conditions the mining plan, as provided by 30 CFR 740.4(b)(1), OSMRE will consult with and obtain the concurrences of BLM, any Federal land management agency, and other relevant Federal agencies.

DEP may assist OSMRE in the preparation of documentation to comply with the requirements of NEPA under 30 CFR 740.4(c)(7). If requested, DEP may assist with document preparation, but OSMRE will retain responsibility for preparing NEPA compliance documents, including the exceptions relating to NEPA as set forth in 30 CFR 740.4(c)(7)(i)-(vii).

DEP will be responsible for the approval and release of performance bonds and liability insurance under 30 CFR 740.4(c)(4), in accordance with Article IX of this Agreement, and for the review and approval under 30 CFR 740.4(c)(6) of coal exploration operations not subject to 43 CFR part 3400.

Responsibilities and decisions that can be delegated to DEP under other applicable Federal laws may be specified in working agreements between OSMRE and the State with the concurrence of any Federal agency involved and without amendment to this Agreement.

B. Submission of Permit Application

DEP will require an applicant proposing to conduct surface coal mining and reclamation operations or coal exploration operations on Federal lands covered by this Agreement to submit a permit application in the format as prescribed by DEP. DEP will furnish a copy of the permit application package or make it available to OSMRE, any Federal land management agency, and any other agency with jurisdiction or responsibility over Federal lands affected by operations proposed in the permit application. The permit application will be in the form required by DEP and will include any supplemental information required by OSMRE, any Federal land management agency, and any other agency with jurisdiction or responsibility over Federal lands affected by operations proposed in the permit application.

At a minimum, the permit application will satisfy the requirements of 30 CFR 740.13(b) and include the information necessary for DEP to make a determination of compliance with 30 CFR 740.4(c) and the State program, and for OSMRE, any appropriate Federal land management agencies, and any other agency with jurisdiction or responsibilities over Federal lands affected by operations proposed in the permit application to make determinations of compliance with applicable requirements of SMCRA, the Federal lands program, other Federal laws, Executive Orders, and regulations for which they are responsible.

For any existing or pending permit applications on Federal lands being regulated or processed by OSMRE prior to the effective date of this Agreement, OSMRE will coordinate with DEP and continue that responsibility, if so requested by the State. At any point during the regulation or processing of those applications, all additional responsibilities may be passed to DEP pursuant to the terms of this Agreement, along with any attendant fees, fines or civil or criminal penalties therefrom.

C. Review Procedures

DEP will be the primary point of contact for applicants regarding the review of the permit application for compliance with the State program and other applicable State laws and regulations. OSMRE will be the point of contact regarding the review of the applicable portions of the permit application for compliance with the non-delegated responsibilities of SMCRA and for compliance with the requirements of the MLA, other Federal laws, Executive Orders, and regulations.

OSMRE and DEP will develop a work plan and schedule for permit application review that complies with the time limitations established by the approved State program, and each agency will designate a primary point of contact between OSMRE and DEP throughout the review process.

OSMRE will furnish DEP with its review comments on administratively complete permit applications and specify any requirements for additional data within 45 calendar days after receipt of each respective application. OSMRE and DEP will coordinate with each other during the review process, as needed. If OSMRE is unable to furnish its comments within that time, DEP may elevate the matter to the OSMRE Regional Director. DEP will send to OSMRE copies of any correspondence with the applicant and any information received from the applicant regarding the permit application.

Unless otherwise protected by Federal law, OSMRE will send to DEP copies of all non-privileged external OSMRE correspondence that may have a bearing on the permit application. OSMRE will provide technical assistance to DEP when requested and will have access to DEP files concerning coal exploration or surface mining operations on Federal lands. DEP will keep OSMRE informed of findings made during the review process that bear on the responsibilities of OSMRE or other Federal agencies.

OSMRE will assist the State in carrying out DEP's responsibilities by coordinating resolution of conflicts and difficulties between DEP and other Federal agencies in a timely manner; assisting in scheduling joint meetings, upon request, between State and Federal agencies; and exercising its responsibilities in a timely manner, governed to the extent possible by the deadlines established in the State program.

D. Review Procedures Where There is Federal Surface, but No Leased Federal Coal Involved

DEP will assume the responsibility for review of permit applications where there is no leased Federal coal to the extent authorized in 30 CFR 740.4(c)(1), (2), (4), (6), and (7).

DEP will assume responsibility for the analysis, review and approval, disapproval, or conditional approval of the permit application component of the permit application package required by 30 CFR 740.13 for surface coal mining and reclamation operations in West Virginia on Federal lands not requiring a mining plan pursuant to the MLA, as amended, including applications for revisions, renewals and transfer, sale, and assignment of such permits.

E. Review Procedures Where Federal Surface and Leased Federal Coal Is Involved

DEP will assume the responsibility for review of permit applications involving both Federal surface and leased Federal coal to the extent authorized in 30 CFR 740.4(c)(1), (2), (3), (4), (6), and (7).

DEP will, to the extent authorized, consult with any appropriate Federal land management agency and BLM pursuant to 30 CFR 740.4(c)(2) and (3), respectively. On matters concerned exclusively with regulations under 43 CFR parts 3400 through 3480, BLM will be the primary contact with the applicant. BLM will inform DEP of its actions and provide DEP with a copy of documentation on all leasing decisions.

F. DEP, OSMRE, and Other Federal Agency Coordination

DEP will, to the extent authorized, consult with any other Federal land management agency and with BLM when Federal leased coal is involved pursuant to 30 CFR 740.4(c)(2) and (3), respectively. DEP will also be responsible for obtaining the comments and determinations of other agencies with jurisdiction or responsibility over any other Federal lands affected by the operations proposed in the permit application. DEP will request all Federal agencies to furnish their findings or any request for additional information to DEP within 45 calendar days of the date of receipt of the permit application. OSMRE will, upon request, assist DEP in obtaining such information in a timely manner.

In accordance with 30 CFR 745.12(g)(2), where lands containing leased Federal coal are involved, DEP will provide OSMRE, in the form specified by OSMRE in consultation with DEP, with written findings indicating that each permit application is in compliance with the terms of the State program and a technical analysis of each permit application to assist OSMRE in meeting its responsibilities under other applicable Federal laws and regulations.

Where leased Federal coal is involved, OSMRE will consult with and obtain the concurrences of BLM, any Federal land management agency, and any other agency with jurisdiction or responsibility over the Federal lands affected by the operations proposed in the permit application as required to make its recommendation for the Secretary's decision on the mining plan.

Where BLM contacts the applicant in carrying out its responsibilities under 43 CFR part 3400, BLM will immediately inform DEP of its actions and provide DEP with a copy of documentation of all leasing decisions within 5 calendar days.

G. Permit Application Decision and Permit Issuance

DEP will prepare a State decision package, including written findings and supporting documentation, indicating whether the permit application is in compliance with the State program. DEP will make the decision on approval, disapproval or conditional approval of the surface mining permit or coal exploration approval on Federal lands in accordance with the State program.

Any permit issued by DEP will incorporate, as applicable, any terms or conditions required by the lease issued pursuant to the MLA and by any other applicable Federal laws and regulations, including conditions imposed by any Federal land management agency relating to postmining land use or any special requirements to protect non-mineral resources and those of other affected agencies.

DEP may make a decision on approval, disapproval, or conditional approval of the surface mining permit on Federal lands in accordance with the State program prior to the necessary Secretarial decision on the mining plan when leased Federal coal is involved, provided that DEP advises the operator in the permit that Secretarial approval of the mining plan must be obtained before the operator may conduct surface coal mining operations on the Federal lands and conditions the issuance of the permit or approval on Secretarial approval of the mining plans. DEP will reserve the right to amend or rescind any requirements of the permit or approval to conform with any terms or conditions when imposed by the Secretary in the approval of the mining plan.

After making its decision on the permit application, DEP will send a notice to the applicant, OSMRE, any Federal land management agencies, and any other agency with jurisdiction or responsibility over Federal lands affected by the operations proposed in the permit application. A copy of the permit and written findings will also be submitted to OSMRE.

H. Review Procedures for Permit Revisions; Renewals; and Transfer, Assignment or Sale of Permit Rights

Any permit revision or renewal for a surface coal mining and reclamation operation on Federal lands will be reviewed and approved or disapproved by DEP after consultation with OSMRE on whether such revision or renewal requires a mining plan modification pursuant to 30 CFR 746.18. OSMRE will inform DEP within 15 calendar days of receiving a copy of a proposed permit revision or renewal whether the permit revision or renewal will require a mining plan modification. If OSMRE is unable to furnish its determination within that time, DEP may elevate the matter to the OSMRE Regional Director. Where approval of a mining plan modification is required, OSMRE and DEP will follow the procedures outlined in Section E of this Article.

Permit revisions or renewals on Federal lands that are determined by OSMRE not to require mining plan modifications will be reviewed and approved by following the procedures set forth in Section D of this Article, the State program, and 30 CFR 740.13(d), if applicable.

Transfer, assignment or sale of permit rights on Federal lands will be processed in accordance with the State program and 30 CFR 740.13(e). Those applications that do not require a mining plan modification will be processed according to the procedures set forth in Section D of this Article. Those applications that do require a mining plan modification will be processed according to the procedures set forth in Section E of this Article.

Article VII: Inspections

DEP will conduct inspections on Federal lands in accordance with 30 CFR 740.4(c)(5) and prepare and file inspection reports in accordance with the State program.

DEP will, subsequent to conducting any inspection on Federal lands pursuant to 30 CFR 740.4(c)(5), and on a timely basis, provide OSMRE with access to a copy of the completed State inspection report.

DEP will be the point of contact and primary inspection authority in dealing with the operator concerning operations and compliance with the requirements covered by this Agreement, except as described hereinafter. Nothing in this Agreement will prevent inspections by authorized Federal or State agencies for purposes other than those covered by this Agreement. The Department of the Interior may conduct any inspections necessary to comply with 30 CFR parts 842 and 843 and its obligations under laws other than SMCRA.

OSMRE will give DEP reasonable notice of its intent to conduct an inspection under 30 CFR 842.11 in order to provide State inspectors with an opportunity to join in the inspection.

When OSMRE is responding to a citizen complaint of an imminent danger to the public health and safety or of significant, imminent environmental harm to land, air or water resources, pursuant to 30 CFR 842.11(b)(1)(ii)(C), it will contact DEP prior to the Federal inspection, if circumstances and time allow, to facilitate a joint Federal/State inspection. OSMRE will provide DEP with a copy of the inspection report within 15 days of the inspection. The Secretary reserves the right to conduct inspections without prior notice to DEP to carry out their responsibilities under SMCRA or other Federal laws. All citizen complaints that do not involve an imminent danger or significant, imminent environmental harm will be addressed using OSMRE's procedures under section 521 of SMCRA, 30 U.S.C. 1271,and.

Article VIII: Enforcement

DEP will have primary enforcement authority on Federal lands to ensure operator compliance with the requirements of the State program and this Agreement in accordance with 30 CFR 740.4(c)(5); OSMRE retains its SMCRA enforcement authority, as specified in section 521 of SMCRA, 30 U.S.C. 1271,and. Enforcement authority given to the Secretary under other Federal laws and Executive Orders including, but not limited to, those Federal authorities listed in Appendix A (attached) is reserved to the Secretary.

During any joint inspection by DEP and OSMRE, DEP will have primary responsibility for taking enforcement actions, including issuance of orders of cessation, notices of violation, and assessment of civil or criminal penalties. DEP must inform OSMRE and any Federal land management agency prior to issuance of any decision to suspend or revoke a permit on Federal lands.

A permit to conduct coal exploration or surface coal mining and reclamation operations on Federal lands may be suspended or revoked by DEP pursuant to the State program.

If a permit to conduct surface coal mining and reclamation operations on lands containing leased Federal coal is suspended or revoked, the DEP must notify BLM so it can determine whether action should be taken to cancel the Federal lease pursuant to 30 CFR 740.13(f)(2).

During any inspection made solely by OSMRE or any joint inspection where DEP and OSMRE fail to agree regarding the propriety of any particular enforcement action, OSMRE may take any enforcement action necessary to comply with 30 CFR parts 843, 845, and 846. Such enforcement action will be based on the standards in the State program, SMCRA or both and will be taken using the procedures and penalty system contained in 30 CFR parts 843, 845, and 846.

DEP and OSMRE will promptly notify each other and any Federal land management agency of all violations of applicable laws, regulations, orders or approved mining permits subject to this Agreement and of all actions taken with respect to such violations.

Consistent with applicable law, personnel of DEP and the Department of the Interior, including OSMRE, will be mutually available to serve as litigation witnesses in enforcement actions taken by either party.

This Agreement does not affect or limit the Secretary's authority to enforce violations of Federal authorities other than SMCRA. Appendix A of this Agreement lists some, but not all, of the Federal authorities other than SMCRA that may be relevant to this Agreement.

Article IX: Bonds

DEP and the Secretary will require each operator who conducts coal exploration operations or surface coal mining and reclamation operations on Federal lands to submit a performance and/or penal bond payable to both the State of West Virginia and the United States to cover the operator's responsibilities under SMCRA and the State program. The performance and/or penal bond will be conditioned upon compliance with the requirements of SMCRA, the State program, other State or Federal laws and regulations, and any other requirements imposed by the Secretary or any Federal land management agency. Such bond will provide that if this Agreement is suspended or terminated, the portion of the bond covering Federal lands will be converted to a full-cost reclamation bond and made payable only to the United States. Before termination, DEP will assist OSMRE in obtaining the full-cost reclamation bond from the operator for those areas where only Federal lands are covered by the bond. If applicable, DEP will advise OSMRE of any annual adjustments to the performance and/or penal bond pursuant to the State program.

Performance and/or penal bonds will be subject to release and forfeiture in accordance with the procedures and requirements of the State program. Where coal exploration operations or surface coal mining and reclamation operations are conducted on Federal lands, the performance and/or penal bond must be released by the State upon compliance with all applicable State and Federal requirements and after the release is concurred in by OSMRE. OSMRE's concurrence will include coordination with any Federal land management agency and any other agency with jurisdiction or responsibility over Federal lands affected by the coal exploration operation or surface coal mining and reclamation operation.

In the event of forfeiture by an operator of a performance and/or penal bond for a coal exploration operation or a surface coal mining and reclamation operation on Federal lands covered by this Agreement, the State must use funds received from the forfeited bond and, where necessary, funds from the West Virginia Special Reclamation Fund and/or the Special Reclamation Water Trust Fund, pursuant to W. Va. Code § 22-3-11, to ensure that complete reclamation is accomplished in accordance with the State program, the reclamation plan of the permit, and the mining plan prior to revocation or any modification thereto.

Submission of a performance and/or penal bond does not satisfy the requirements for a Federal lease bond required by 43 CFR subpart 3474 or lessee protection bond required in addition to a performance bond, in certain circumstances, by section 715 of SMCRA. Where Federal lease or lessee protection bonds are required, OSMRE or the appropriate Federal agency is responsible for the collection and maintenance of such bonds.

If a Federal lease bond is required, as provided by 30 CFR 740.15, such bond may be released by the applicable Federal agency upon satisfactory compliance with all applicable requirements of 43 CFR part 3400 and after the release is concurred in by BLM.

Article X: Designating Land Areas Unsuitable for all or Certain Types of Surface Coal Mining and Reclamation Operations and Activities and Valid Existing Rights (VER) and Compatibility Determinations A. Unsuitability Petitions

The authority to designate Federal lands as unsuitable for mining pursuant to a 30 CFR part 769 petition is reserved by the Secretary as provided by 30 CFR 745.13(a).

OSMRE will consider the minimum criteria set forth in 30 CFR part 762 when evaluating each petition for designating an area as unsuitable for mining. In addition, OSMRE will process all requests for designating Federal lands as unsuitable for mining or for terminating previous designations in accordance with 30 CFR part 769.

When either DEP or OSMRE receives a petition to designate land areas unsuitable for all or certain types of surface coal mining operations that could impact adjacent Federal or non-Federal lands pursuant to section 522(c) of SMCRA, the agency receiving the petition will notify the other of its receipt within 5 calendar days and the anticipated schedule for reaching a decision and request and fully consider data, information, and recommendations of the other. OSMRE will coordinate with any Federal land management agencies with jurisdiction over the petition area and will solicit comments from any such agency.

B. Valid Existing Rights Determinations

The following actions will be taken when requests for determinations of VER pursuant to section 522(e) of SMCRA and 30 CFR 761.11 are received prior to or at the time of submission of a permit application that involves surface coal mining and reclamation operations and activities:

For Federal lands within the boundaries of any areas specified under section 522(e)(1) of SMCRA and 30 CFR 761.11(a), OSMRE will determine whether VER exists for such areas pursuant to 30 CFR 745.13(o).

For Federal lands within the boundaries of any national forest where proposed operations are prohibited by section 522(e)(2) of SMCRA and 30 CFR 761.11(b), OSMRE will make the VER determinations pursuant to 30 CFR 745.13(o). OSMRE will process requests for determinations of compatibility under section 522(e)(2) of SMCRA and 30 CFR 761.13.

For private in-holdings within areas protected under 30 CFR 761.11(a) and SMCRA section 522(e)(1), DEP will process the VER request, in accordance with the State program, but use the Federal VER definition at 30 CFR 761.5 when making the VER determination.

For any lands, DEP will determine whether any proposed operation will adversely affect any publicly owned park or, in consultation with the State Historic Preservation Officer, sites listed on the National Register of Historic Places, with respect to the prohibitions or limitations of section 522(e)(3) of SMCRA and 30 CFR 761.11(c). DEP will make the VER determination for such lands using the approved State program definition of VER. DEP will coordinate with any affected agency or agency with jurisdiction over the proposed surface coal mining and reclamation operations.

In the case that VER is determined not to exist under section 522(e)(3) of SMCRA or 30 CFR 761.11(c), no surface coal mining operations will be permitted unless jointly approved by DEP and the Federal, State or local agency with jurisdiction over the publicly owned park or historic place.

C. Compatibility Determinations

As provided by 30 CFR 740.4(a)(5), the Secretary is responsible for the issuance of findings concerning whether there are significant recreational, timber, economic, or other values that may be incompatible with surface coal mining operations incident to underground mining on Federal lands within the boundaries of a national forest protected pursuant to section 522(e)(2) of SMCRA and 30 CFR 761.11(b). OSMRE will process requests for compatibility determinations in accordance with the procedures set forth at 30 CFR 761.13.

Article XI: Termination of Cooperative Agreement

This Agreement may be terminated by the Governor or the Secretary under the provisions of 30 CFR 745.15.

Article XII: Reinstatement of Cooperative Agreement

If this Agreement has been terminated in whole or in part, it may be reinstated under the provisions of 30 CFR 745.16.

Article XIII: Amendment of Cooperative Agreement

This Agreement may be amended by mutual agreement of the Governor and the Secretary in accordance with 30 CFR 745.14.

Article XIV: Changes in State or Federal Standards

The Secretary or the Governor may from time to time promulgate new or revised performance standards or reclamation requirements or enforcement and administration procedures. Each party will, if it determines it to be necessary to keep this Agreement in force, change or revise its regulations or request necessary legislative action. Such changes will be made under the procedures of 30 CFR part 732 for changes to the State program and under the procedures of sections 501 and 523 of SMCRA for changes to the Federal lands program.

DEP and OSMRE will provide each other with copies of any changes to their respective laws, rules, regulations, or standards pertaining to the enforcement and administration of this Agreement.

Changes in State law or regulations cannot take effect for the purposes of this Agreement until they have been approved by OSMRE pursuant to 30 CFR 732.17.

Article XV: Changes in Personnel and Organization

In accordance with 30 CFR part 745, each party to this Agreement will notify the other, when necessary, of any changes in personnel, organization, and funding or other changes that may affect the implementation of this Agreement to ensure coordination of responsibilities and to facilitate cooperation.

Article XVI: Reservation of Rights

As provided by 30 CFR 745.13, this Agreement will not be construed as waiving or preventing the assertion of any rights that have not been expressly addressed in this Agreement and that the State or the Secretary may have under laws other than SMCRA or their regulations including, but not limited to, those listed in Appendix A.

Appendix A

1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq., and implementing regulations.

2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and implementing regulations, including 43 CFR part 3400 and 30 CFR part 746.

3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and implementing regulations, including 40 CFR part 1500.

4. The Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., and implementing regulations, including 50 CFR part 402.

5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 661 et seq.; 48 Stat. 401.

6. The Bald and Golden Eagle Protection Act of 1940, as amended, 16 U.S.C. 668-668d,and.

7. The Migratory Bird Treaty Act, as amended, 16 U.S.C. 701-718h et seq.

8. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., and implementing regulations, including 36 CFR part 800.

9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing regulations.

10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., and implementing regulations.

11. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., and implementing regulations.

12. The Reservoir Salvage Act of 1960, amended by the Preservation of Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.

13. Executive Order 11593 (May 13, 1971), Cultural Resource Inventories on Federal Lands.

14. Executive Order 11988 (May 24, 1977), for flood plain protection.

15. Executive Order 11990 (May 24, 1977), for wetlands protection.

16. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et seq., and implementing regulations.

17. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.

18. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa et seq., as amended.

19. The Constitution of the United States.

20. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq., as amended.

21. 30 CFR Chapter VII.

22. The Constitution of the State of West Virginia.

23. West Virginia Department of Environmental Protection Permanent Regulatory Program at 30 CFR part 948, as amended.

24. West Virginia Surface Coal Mining and Reclamation Act at W.Va. Code § 22-3-1 et seq.

25. West Virginia Department of Environmental Protection, Surface Mining Reclamation Regulations, CSR § 38-2-1 et seq.

26. The Office of Explosives and Blasting at W.Va. Code § 22-3A-1 et seq.

27. The West Virginia Surface Mining Blasting Rule, CSR § 199-1-1 et seq.

[91 FR 8079, Feb. 20, 2026]