Mo. Code Regs. tit. 10 § 40-3.120

Current through Register Vol. 49, No.12, June 17, 2024

Section 10 CSR 40-3.120 - Revegetation Requirements

PURPOSE: This rule sets forth revegetation requirements pursuant to sections 444.810 and 444.855.2(19) and (20), RSMo.

(1) General Requirements.

(A) The permittee shall establish on regraded areas and on all other disturbed areas, except water areas and surface areas of roads that are approved as part of the post-mining land use, a vegetative cover that is in accordance with the approved permit and reclamation plan and that is to be-

1. Diverse, effective and permanent;

2. Comprised of species native to the area, or of introduced species where allowable under section (2) of this rule, and necessary to achieve the approved postmining land use and approved by the regulatory authority;

3. At least equal in extent of cover to the natural vegetation of the area; and

4. Capable of stabilizing the soil surface from erosion.

(B) The reestablished plant species shall-

1. Be compatible with the approved postmining land use;

2. Have the same seasonal characteristics of growth as the original vegetation;

3. Be capable of self-regeneration and plant succession;

4. Be compatible with the plant and animal species of the area; and

5. Meet the requirements of applicable state and federal seed, poisonous and noxious plant and introduced species laws or regulations.

(C) For areas designated as prime farmland, the requirements of 10 CSR 40-4.030 shall apply.

(D) The regulatory authority may grant exception to the requirements of paragraphs (1)(B)2. and 3. of this rule when the species are necessary to achieve a quick-growing, temporary, stabilizing cover and measures to establish permanent vegetation are included in the approved permit and reclamation plan.

(E) When the regulatory authority approves a cropland or prime farmland post-mining land use, the regulatory authority may grant exception to the requirements of paragraphs (1)(A)1. and 3., and (1)(B)2. and 3. of this rule.

(2) Use of Introduced Species. Introduced species may be substituted for native species only if approved in the permit and plan under the following conditions:

(A) After appropriate field trials have demonstrated that the introduced species are desirable and necessary to achieve the approved postmining land use;

(B) The species are necessary to achieve a quick, temporary and stabilizing cover that aids in controlling erosion; and measures to establish permanent vegetation are included in the approved plan submitted under 10 CSR 40-6.050(8)(B) 3. and 10 CSR 40-6.050(10);

(C) The species are compatible with the plant and animal species of the region; and

(D) The species meet the requirements of applicable state and federal seed or introduced species statutes and are not poisonous or noxious.

(3) Timing. Seeding and planting of disturbed areas shall be conducted during the first normal period for favorable planting conditions after final preparation. The normal period for favorable planting shall be that planting time generally accepted locally for the type of plant materials selected. When necessary to effectively control erosion, any disturbed area shall be seeded and planted, as contemporaneously as practicable with the completion of backfilling and grading, with a temporary cover of small grains, grasses or legumes until a permanent cover is established.

(4) Mulching and Other Soil Stabilizing Practices.

(A) Suitable mulch and other soil stabilizing practices shall be used on all regraded and topsoiled areas to control erosion, pro-mote germination of seeds or increase the moisture-retention capacity of the soil. The commission or director, on a case-by-case basis, may suspend the requirement for mulch, if the permittee can demonstrate that alternative procedures will achieve the requirements of section (6) of this rule and do not cause or contribute to air or water pollution.

(B) When required in the permit and plan, mulches shall be mechanically or chemically anchored to the soil surface to assure effective protection of the soil and vegetation.

(C) Annual grasses and grains may be used alone as in situ mulch, or in conjunction with another mulch, when the commission or director determines that they will provide adequate soil erosion control and will later be replaced by perennial species approved for the postmining land use.

(D) Chemical soil stabilizers alone, or in combination with appropriate mulches, may be used in conjunction with vegetative covers approved for the postmining land use.

(5) Grazing. When the approved postmining land use is pasture, the reclaimed land may be used for livestock grazing at a grazing capacity approved in the permit and plan approximately equal to that for similar non-mined lands, for at least the last two (2) full years of liability required under subsection (6)(B) of this rule or may be used in another manner, as approved, which will determine the productive capacity approved in the permit and plan approximately equal to that for similar nonmined lands.

(6) Standards for Success.

(A) Success of revegetation shall be measured by statistically valid techniques and in accordance with guidelines established by the director and referenced under paragraph (6)(B)2. of this rule. Comparison of ground cover and productivity may be made on the basis of reference areas or criteria representative of unmined lands in the area being reclaimed or through the use of technical guidance procedures published by the United States Department of Agriculture (USDA) or United States Department of Interior (USDI) for assessing ground cover and productivity. Management of the reference area, if applicable, shall be comparable to that which is required for the approved postmining land use of the permit area.

(B) General Requirements.

1. Ground cover and productivity of living plants on the revegetated area within the permit area shall be equal to the ground cover and productivity of living plants on the approved reference area or to the standards in other technical guides approved by the commission for use in the regulatory program. The period of extended responsibility initiates after the last year of augmented seeding, fertilizing, irrigation or other work which ensures success and continues for not fewer than five (5) years.

2. Specific standards for postmining land uses-

A. For areas to be used as woodland, success in revegetation shall be determined on the basis of ground cover and tree and shrub count. Ground cover and tree and shrub stocking shall be considered acceptable if they are equal to ninety percent (90%) of the approved success standard at a ninety percent (90%) statistical confidence level for the last year of the five (5)-year responsibility period. The success standard for ground cover is a ground cover density of seventy percent (70%). The success standard for tree and shrub stocking rate shall be determined on a specific permit basis with consultation and approval of the Missouri Department of Conservation. Measurements for ground cover and productivity of living plants shall be performed in accordance with the criteria contained in the current guidelines of the Land Reclamation Commission entitled "Phase III Revegetation Success Standards for Woodland";

B. In areas to be developed for industrial/commercial land use fewer than two (2) years after regrading is completed, the vegetative ground cover shall not be less than required to control erosion. If the area is not developed for industrial/commercial use within two (2) years of regrading, ground cover must have a density of seventy percent (70%), at a ninety percent (90%) statistical confidence level and not be less than that required to control erosion. Measurements for ground cover shall be performed in accordance with the criteria contained in the current guidelines of the Land Reclamation Commission entitled "Phase III Success Standards for Industrial/Commercial Revegetation";

C. For areas to be used for cropland unless otherwise approved in the permit and plan, success in revegetation of cropland shall be determined on the basis of crop production from the mined area as compared to approved reference areas or other technical guidance procedures. Crop production from the mined area shall be equal to or greater than that of the approved standard for any two (2) years, except the first year, of the five (5)-year liability period established in paragraph (6)(B)1. of this rule. Production shall not be considered equal if it is less than ninety percent (90%) of the production of the approved standard with ninety percent (90%) statistical confidence. Measurements for crop productivity shall be performed in accordance with the criteria contained in the current guidelines of the Land Reclamation Commission entitled "Phase III Revegetation Success Standards for Cropland";

D. On areas to be developed for wildlife habitat, success of vegetation shall be determined on the basis of tree, shrub or half-shrub stocking and ground cover. The tree, shrub or half-shrub stocking shall meet the standards described in section (7) of this rule. Ground cover shall be considered acceptable if it has at least seventy percent (70%) density with ninety percent (90%) statistical confidence. The success standard for tree and shrub stocking rate shall be determined on a specific permit basis with consultation and approval of the Missouri Department of Conservation. Measurements for ground cover and stocking shall be performed in accordance with the criteria contained in the current guidelines of the Land Reclamation Commission entitled "Phase III Revegetation Success Standards for Wildlife Habitat";

E. For areas to be developed for pasture use, success of revegetation shall be determined on the basis of ground cover and the production of living plants. Ground cover and production shall be considered acceptable if they are at least ninety percent (90%) of the approved success standard at a ninety percent (90%) statistical confidence level for any two (2) years of the five (5)-year responsibility period, except the first year. The success standard for ground cover shall be ninety percent (90%) density. The success standard for hay production shall be the yield from the reference area. Measurements for ground cover and productivity of living plants shall be performed in accordance with the criteria contained in the current guidelines of the Land Reclamation Commission entitled "Phase III Revegetation Success Standards for Pasture and Previously Mined Areas";

F. For areas to be developed for prime farmland use, success of revegetation shall be determined on the basis of crop production. Crop production shall be considered acceptable if it is one hundred percent (100%) of the approved success standard at a ninety percent (90%) statistical confidence level for any three (3) years of the five (5)-year responsibility period, except the first year. The success standard for crop production shall be the yield from the reference area or other technical guidance procedures. Measurement of soil productivity shall be initiated within ten (10) years after completion of soil replacement. Measurements for crop productivity shall be performed in accordance with the criteria contained in 10 CSR 40-4.030 and in the current guidelines of the Land Reclamation Commission entitled "Phases II/III Revegetation Success Standards For Prime Farmland";

G. For areas to be developed for a recreation land use, success of revegetation shall be determined on the basis of ground cover and tree and shrub stocking. Ground cover shall be considered acceptable if it is equal to a density of seventy percent (70%), at a ninety percent (90%) statistical confidence level. The success standard for tree and shrub stocking rate shall be determined on a specific permit basis with consultation and approval of the Missouri Department of Conservation. Measurements for ground cover and productivity of living plants shall be performed in accordance with the criteria contained in the current guidelines of the Land Reclamation Commission entitled "Phase III Revegetation Success Standards For a Recreation Land Use";

H. For areas to be developed for residential use fewer than two (2) years after regrading is completed, the vegetative ground cover density shall not be less than required to control erosion. If the area is not developed for residential use within two (2) years of regrading, ground cover must be equal to a density of seventy percent (70%), at a ninety percent (90%) statistical confidence level. Measurements for ground cover density shall be performed in accordance with the criteria contained in the current guidelines of the Land Reclamation Commission entitled "Program Phase III Revegetation Standards For Residential Land Use"; and

I. For areas previously disturbed by mining that were not reclaimed to the requirements of subsection (6)(B) and that are re-mined or otherwise redisturbed by surface coal mining operations, as a minimum, the vegetative ground cover shall be not less than the ground cover existing before redistur-bance and shall be adequate to control erosion.

3. Vegetative ground cover shall not be less than that required to achieve the approved postmining land use.

(C) The person who conducts surface mining activities shall-

1. Maintain any necessary fences and proper management practices; and

2. Conduct periodic measurements of vegetation, soils and water prescribed or approved in the permit and plan to identify conditions during the applicable period of liability specified in subsection (6)(B) of this rule.

(D) For permit areas forty (40) acres or less in size in locations with an average annu-al precipitation of more than twenty-six inches (26"), the following performance standards, if approved in the permit and plan, may be used instead of reference areas to measure success of revegetation on sites that are disturbed. These standards shall be met for a minimum of five (5) consecutive years:

1. Areas planted only in herbaceous species shall sustain a vegetative ground cover of seventy percent (70%) for five (5) full consecutive years;

2. Areas planted with a mixture of herbaceous and woody species shall sustain a herbaceous vegetative ground cover of seventy percent (70%) for five (5) full consecutive years and four hundred (400) woody plants per acre after five (5) years. On steep slopes, the minimum number of woody plants shall be six hundred (600) per acre; and

3. For purposes of this section, herbaceous species means grasses, legumes and nonleguminous forbs; woody plants means woody shrubs, trees and vines; and ground cover means the area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally on-site, expressed as a percentage of the total area of measurement.

(7) Tree and Shrub Stocking for Woodland, Wildlife Habitat and Recreation Land Uses. This section sets forth forest resource conservation standards for reforestation operations to ensure that a cover of commercial tree species, noncommercial tree species, shrubs or half-shrubs, sufficient for adequate use of the available growing space, is established after surface mining activities.

(A) Stocking, that is, the number of stems per unit area, will be used to determine the degree to which space is occupied by well-distributed, countable trees, shrubs or half-shrubs.

1. Root crown or root sprouts over one foot (1') in height shall count as one (1) toward meeting the stocking requirements. Where multiple stems occur, only the tallest stem will be counted.

2. A countable tree or shrub means a tree that can be used in calculating the degree of stocking under the following criteria:

A. The tree or shrub shall be in place at least two (2) growing seasons;

B. The tree or shrub shall be alive and healthy; and

C. The tree or shrub shall have at least one-third (1/3) of its length in live crown.

3. Rock areas, permanent road and surface water drainage ways on the revegetated area shall not require stocking.

(B) The following are the minimum performance standards for areas where woodland is the approved postmining land use:

1. The area shall have a minimum stocking of four hundred fifty (450) trees or shrubs per acre;

2. A minimum of seventy-five percent (75%) of countable trees or shrubs shall be commercial tree species;

3. The number of trees or shrubs and the ground cover shall be determined using procedures described in subparagraph (6)(B)2.D. and subsection (7)(A) of this rule and the sampling method approved in the permit and plan; when the stocking is equal to or greater than four hundred fifty 0.450) trees or shrubs per acre and there is acceptable ground cover, the five (5)-year responsibility period required in subparagraph (6)(B)2.D. and paragraph (7)(C)2. of this rule shall begin; and

4. Upon expiration of the five (5)-year responsibility period and at the time of request for bond release, each permittee shall provide documentation showing that the stocking of trees and shrubs and the ground cover on the revegetated area is satisfied by the provisions set out in subparagraph (6)(B)2.D. and paragraph (7)(B)1. of this rule.

(C) The following are the minimum performance standards for areas where woody plants are used for wildlife management, recreation, shelter belts or forest uses other than commercial forest land:

1. An inventory of trees, half-shrubs and shrubs shall be conducted on established reference areas according to methods approved in the permit and plan. This inventory shall contain, but not be limited to-

A. Site quality;

B. Stand size;

C. Stand condition;

D. Site and species relations; and

E. Appropriate forest land utilization considerations;

2. The stocking of trees, shrubs, half-shrubs and the ground cover established on the revegetated area shall approximate the stocking and ground cover approved in the permit. Minimum stocking and planting arrangements shall be based on local and regional conditions after consultation with and approval from the Missouri Department of Conservation. The stocking of live woody plants shall be equal to or greater than ninety percent (90%) of the stocking of woody plants of the same life form approved in the permit. When this requirement is met and acceptable ground cover is achieved, the five (5)-year responsibility period required in subsection (6)(B) of this rule shall begin; and

3. Upon expiration of the five (5)-year responsibility period, each permittee shall provide documentation showing that-

A. The woody plants established on the revegetated site are equal to or greater than ninety percent (90%) of the stocking rate approved in the permit with ninety percent (90%) statistical confidence and, at the time of final bond release, at least eighty percent (80%) of the trees and shrubs used to determine success shall have been in place for sixty percent (60%) of the applicable minimum period of responsibility;

B. The ground cover on the revegetat-ed area satisfies subparagraph (6)(B)2.D. of this rule. Species diversity, seasonal variety and regenerative capacity of the vegetation of the revegetated area shall be evaluated on the basis of the results which could reasonably be expected using the revegetation methods described in the mining and reclamation plan; and

C. Vegetative ground cover shall not be less than that required to achieve the approved postmining land use.

(8) Reclamation Schedule.

(A) In addition to the temporal and spatial requirements for completion of grading specified in 10 CSR 40-3.110(1)(A), other aspects of reclamation shall be completed in a timely manner as follows:

1. Replacement of topsoil shall be completed within two hundred seventy (270) days of the completion of backfilling and rough grading or as contemporaneously as possible as defined in the approved permit;

2. A permanent cover sufficient to control erosion, or an equivalent erosion control practice, as approved by the director, shall be in place within two (2) years of the completion of initial seeding;

3. Within four (4) years of the completion of initial seeding-

A. Reclaimed land shall qualify for a Phase II liability release; and

B. The permittee shall submit a request for release of Phase II liability;

4. Siltation structures and diversions that are no longer needed for control of sediment shall be graded, topsoiled and seeded within eighteen (18) months after approval of a Phase II liability release of all disturbed areas within the watershed they serve. These Siltation structures and diversions shall be clearly indicated by the director in the Phase II liability release inspection report;

5. Revegetation success on industrial/commercial areas, public service areas, recreation areas and residential areas shall be demonstrated in the last year of the five (5)-year responsibility period;

6. Revegetation success on woodland areas and wildlife areas shall be demonstrated in the last year of the five (5)-year responsibility period;

7. Revegetation success on cropland and pasture shall be demonstrated in any two (2) years of the last four (4) years of the five (5)-year responsibility period;

8. Revegetation success on prime farmland shall be demonstrated in any three (3) years of the last four (4) years of the five (5)-year responsibility period;

9. Measurements of ground cover, productivity and tree and shrub density shall be submitted to the commission within thirty (30) days of data collection for the years the permittee uses to prove revegetation success. If a permittee is unable to demonstrate reveg-etation success at the end of the five (5)-year responsibility period, the responsibility period and the requirement to measure productivity shall be extended year-by-year until the revegetation success standards are met; and

10. Within six (6) months after revege-tation success is demonstrated for a given area-

A. All requirements of 10 CSR 40-7.021(2)(D) shall be met; and

B. The permittee shall submit a request for release of Phase III liability to the commission.

(B) The requirements of subsection (8)(A) shall not apply to areas that are used and needed specifically for the support of ongoing reclamation or mining activities and on which grading, topsoiling, or both cannot be completed until the areas are no longer needed for the support of ongoing reclamation or mining activities. The areas shall include, but shall not be limited to, haul roads, siltation structures, diversions and stockpiles. The requirements of subsection (8)(A) shall apply to these areas when they are no longer needed for support activities.

(C) The director may approve variances from the requirements of paragraphs (8)(A)1.-8. if-

1. The permittee can demonstrate that unusual circumstances which are beyond his/her control have made him/her temporarily unable to conform to the requirements;

2. The variance is requested for the purpose of improving the efficiency of the management of the reclaimed land, and the director determines that the variance will not unreasonably delay reclamation and the release of Phase III liability; or

3. The variance is requested for the purpose of allowing the permittee to perform reclamation that significantly exceeds the requirements of the law.

(D) The permittee shall report to the director the status of reclamation on all of his/her operations as of January 1 of each year. The report shall contain a narrative and map outlining the following as a minimum:

1. Total acres disturbed by mining (that is, spoil banks, open pit, bench);

2. Total acres disturbed to assist mining (that is, siltation structures, diversions, haul roads, topsoil stockpiles);

3. Acres finished graded (that is, all grading complete);

4. Acres not yet finished graded (that is, pit, bench, adjacent four (4) or fewer spoils);

5. Acres finished topsoiled (that is, top-soil completed and most likely seeded);

6. Acres not yet topsoiled;

7. Acres seeded (that is, permanent seeding of grass-legume and cover crop) and a description of the species planted and the methods used;

8. Acres permanent impoundments (that is, siltation structures and final pits);

9. Acres permanent roads;

10. Acres fully reclaimed (that is, reclamation completed; however, future touchup and overseeding may be necessary to ensure bond release status); and

11. Additional acres disturbed to support mining (that is, preparation plants, office and shop areas, slurry ponds, coal storage piles).

10 CSR 40-3.120

AUTHORITY: sections 444.530 and 444.810, RSMo Supp. 1999.* Original rule filed Oct. 12, 1979, effective 2/11/1980. Amended: Filed April 14, 1980, effective 8/11/1980. Amended: Filed Dec. 10, 1980, effective 4/11/1981. Amended: Filed Dec. 9, 1982, effective 4/11/1983. Amended: Filed June 27, 1986, effective 10/27/1986. Amended: Filed Aug. 14, 1986, effective 2/28/1987. Amended: Filed Dec. 15, 1987, effective 4/1/1988. Amended: Filed Sept. 15, 1988, effective 1/15/1989. Amended: Filed Jan. 4, 1989, effective 4/1/1989. Amended: Filed July 3, 1990, effective 11/30/1990. Amended: Filed May 15, 1992, effective 1/15/1993. Amended: Filed Sept. 29, 1995, effective 3/30/1996. Amended: Filed March 21, 2000, effective 10/30/2000.

The secretary of state has determined that the publication of this rule in its entirety would be unduly cumbersome or expensive. The entire text of the material referenced has been filed with the secretary of state. This material may be found at the Office of the Secretary of State or at the headquarters of the agency and is available to any interested person at a cost established by state law.

*Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993, 1995 and 444.810, RSMo 1979, amended 1983, 1993, 1995.