20th Annual Surface Mined Land Reclamation Technology Transfer Seminar

1
20th Annual Surface Mined Land Reclamation
Technology Transfer Seminar

• Indiana Society of Mining and Reclamation
• December 5, 2006

2
Key Developments in CWA Section 404 Permitting

• Section 404 Litigation Overview
• CWA Jurisdiction Post-Rapanos
• General Permits for Coal Mining Operations
• Compensatory Mitigation Rule

3
Is Litigation Driving Corps 404 Policy?

• Bragg
• 402 vs 404 for placement of fill for coal mining
  operations
• Bulen
• DCt held that NWP failed to meet statutory
  requirements enjoined use in WV
• 4th Cir. Overturned upholding Corps case-by-case
  analysis (rehearing denied)
• Kentucky Riverkeepers v. Rowletter (E.D. KY)
• Bulen copy-cat remains pending

4
Litigation Overview (cont.)

• Ovec v Bulen
• 4th Circuit Court of Appeals overturned Goodwin
  decision that
• Ovec v Strock (Bulen II) (S.D. W. Va.)
• Challenges basis for EA individual permits
• 404 vs. 402 for stream segment between toe of the
  fill and sediment pond
• Kensington (D. Alaska)
• -402 vs. 404 in hardrock mining context
• District Court upheld implementation of fill
  material rule
• On appeal 9th Circuit

5
CWA Jurisdiction Post-Rapanos

• U.S. v. Rapanos (2006)
• Industry looking for clarity
• Adjacency
• Proximity
• Connectedness
• BUT, Instead
• Court provided Five Separate Opinions
• Established Two Separate Tests

6
Plurality Decision (J. Scalia)

• Corps expansive land is waters approach goes
  beyond CWA
• Waters are ONLY those relatively permanent,
  standing or continuously flowing bodies of water
  forming geographic features that are described in
  ordinary parlance as streams, oceans, rivers, and
  lakes.
• Waters are NOT channels through which water flows
  intermittently or ephemerally or channels that
  periodically provide drainage for rainfall.

7
Scalia Two-Part Test

• 1. (Adjacent) Relatively permanent body of water
  connected to traditional interstate navigable
  water, and
• 2. (Connected) Continuous surface connection
  with that water, making it difficult to determine
  where the water ends and the wetland begins.

8
Kennedy Opinion

• Requires significant nexus between the wetlands
  and navigable waters (traditional)
• Significant nexus is met if the wetlands, either
  alone or in combination with similarly situated
  lands in the region, significantly affect the
  chemistry, physical and biological integrity of
  navigable waters
• Adjacent wetlands meet the test, but otherwise
  case-by-case

9
WHICH TEST PREVAILS?

• Department of Justice interprets Rapanos to
  establish two tests, Scalia and Kennedy
• Jurisdiction is established by meeting either
  test
• Interim guidance to address implementing DOJ
  interpretation of Rapanos

10
Rapanos Interim Guidance

• Anticipated by end of 2006
• Decisions are case-by-case
• Defines waters that are definitely in
• Defines waters that are definitely out
• Remaining questionable waters must meet
  criteria for jurisdiction

11
Criteria Checklist

• Hydrologic Factors
• Flow, Volume, Duration and Frequency
• Proximity
• Watershed
• Rainfall
• Slope, Channel Dimension

12
Criteria (cont.)

• Ecological Factors
• Capacity to Carry Pollutants
• Trapping or Filtering Capacity
• Floodwater Storage
• Maintaining Quality, Commerce, Recreation and
  Public Health

13
Corps Addresses Ephemeral Waters In NWP
Reauthorization

• Corps proposes to create presumption that
  ephemeral waters are jurisdictional (29,39,40,42)
• Difficult to distinguish between ephemeral and
  intermittent
• NMA comment Contrary to Rapanos decision

14
Proposed Revisions to NWP 21

• NWP 21 No national threshold limitation
• Regional thresholds proposed
• Louisville
• Indiana
• Kentucky
• Huntington
• West Virginia
• Ohio

15
Newly Proposed General Permits for Coal Mining

• NWP E Remining
• Proposed 6040 ratio
• NWP F Underground Mining
• Proposed ½ acre limit

16
NMA Comments

• Efficient 404 authorizations critical to coal
  industry ability to meet U.S. demand
• Threshold limitations unnecessary and unworkable
• Corps NWP 21 duplicative with SMCRA and CWA 402
  and 401
• Corps and OSM must develop streamlined permit
• Federal MOA
• Appropriations language

17
NMA Proposal for Streamlined Permit

• MOA between Corps District and relevant state
  coal mining regulators
• SMCRA authority takes lead
• SMCRA Plus ApplicationSMCRA required information
  and voluntarily submitted information necessary
  for Corps 404 determination
• Agency and public notice and comment provided one
  time on the entire permit package

18
NMA Proposed Streamlined Permit (Cont.)

• Corps reviews SMCRA and CWA findings for making
  404 determinations
• Eliminates duplicating agency review
• Eliminates overlapping and duplicative agency
  comment opportunity
• Eliminates permitting delays

19
Mitigation

• Litigation driving mitigation requirements
• Use of stream protocols
• Proposed rule revising compensatory mitigation
  requirements (March 2006)
• Corps goal is to finalize by end of 2006
• Creates mitigation flexibility
• Precludes mitigation credit for SMCRA or other
  state required reclamation/mitigation
• Phases out in-lieu fee programs within 5 years