Coal operators cannot leave mountaintop removal mines as flattened, undeveloped fish and wildlife habitat, federal strip mine regulators say in a decision to be announced today.

The U.S. Office of Surface Mining rejected a proposed state law amendment to allow "fish and wildlife habitat and recreation lands" as a mountaintop removal post-mining land use.

OSM Director Kathy Karpan ruled that the amendment does not comply with the 1977 Surface Mining Control and Reclamation Act.

Under the act, mine operators must propose concrete post-mining development plans for mountaintop removal sites. Operators must also show that flattened land is needed for those plans to receive an approximate original contour, or AOC, variance for mountaintop removal.

"A variance from achieving AOC is simply not needed for the management of species of fish or wildlife, because fish and wildlife habitats do not require flat or rolling terrain, which is created by mountaintop removal operations, in order to be successful," OSM said in its decision, to be published in today's Federal Register.

Federal strip mine law allows mountaintop removal operations to ignore AOC if they propose development for industrial, commercial, residential or public facility (including recreational facilities) uses.

But for more than 20 years, the state Division of Environmental Protection and its predecessor agencies have given coal operators mountaintop removal permits that include fish and wildlife habitat proposals.

In late April 1997, the state DEP asked OSM to make the land use legal.

Under federal law, changes in state mining regulations must be approved by OSM before they can take effect.

John Ailes, chief of the DEP Office of Mining and Reclamation, said in the state's request, "Because of the feral nature of wildlife, the proposed program amendment conforms with [federal regulations] by providing enhanced recreational benefits in the form of additional wildlife for public hunting and observation."

The U.S. Office of Surface Mining rejected a proposed state law amendment to allow "fish and wildlife habitat and recreation lands" as a mountaintop removal post-mining land use.

OSM Director Kathy Karpan ruled that the amendment does not comply with the 1977 Surface Mining Control and Reclamation Act.

Under the act, mine operators must propose concrete post-mining development plans for mountaintop removal sites. Operators must also show that flattened land is needed for those plans to receive an approximate original contour, or AOC, variance for mountaintop removal.

"A variance from achieving AOC is simply not needed for the management of species of fish or wildlife, because fish and wildlife habitats do not require flat or rolling terrain, which is created by mountaintop removal operations, in order to be successful," OSM said in its decision, to be published in today's Federal Register.

Federal strip mine law allows mountaintop removal operations to ignore AOC if they propose development for industrial, commercial, residential or public facility (including recreational facilities) uses.

But for more than 20 years, the state Division of Environmental Protection and its predecessor agencies have given coal operators mountaintop removal permits that include fish and wildlife habitat proposals.

In late April 1997, the state DEP asked OSM to make the land use legal.

Under federal law, changes in state mining regulations must be approved by OSM before they can take effect.

John Ailes, chief of the DEP Office of Mining and Reclamation, said in the state's request, "Because of the feral nature of wildlife, the proposed program amendment conforms with [federal regulations] by providing enhanced recreational benefits in the form of additional wildlife for public hunting and observation."

In its final ruling on the issue, OSM noted that recreational facilities could be allowed post-mining land uses under the "public facility" section of federal law.

But, OSM said, "To qualify for the variance, the recreation facilities must be ëdeveloped' and must also be ëpublic' in nature.

" ëRecreational facilities' might include developed recreational facilities such as parks, camps and amusement areas, as well as areas developed for uses such as hiking, canoeing and other less intensive recreational uses," OSM said.

"However, even the less intensive recreation facilities would require structures or developments to support the public uses," the agency said. "For example, less intensive recreation facilities such as those for hiking and camping may require access roads, parking lots, restrooms, developed trails, boat ramps, camping shelters, etc."

OSM also ordered the state to tighten its post-mining land use requirements.

Currently, state law allows "public use" as a post-mining land use.

OSM said the state must change that language to "public facility [including recreation facilities] use" to match the federal law.