Transcript 20th Annual Surface Mined Land Reclamation Technology Transfer Seminar Indiana Society of Mining and Reclamation December 5, 2006

20th Annual Surface Mined Land
Reclamation Technology Transfer
Seminar
Indiana Society of Mining and
Reclamation
December 5, 2006
Key Developments in CWA Section
404 Permitting
• Section 404 Litigation Overview
• CWA Jurisdiction Post-Rapanos
• General Permits for Coal Mining
Operations
• Compensatory Mitigation Rule
•
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
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
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
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.
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.
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
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
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
Criteria Checklist
• Hydrologic Factors
– Flow, Volume, Duration and Frequency
– Proximity
– Watershed
– Rainfall
– Slope, Channel Dimension
Criteria (cont.)
• Ecological Factors
– Capacity to Carry Pollutants
– Trapping or Filtering Capacity
– Floodwater Storage
– Maintaining Quality, Commerce, Recreation
and Public Health
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
Proposed Revisions to NWP 21
• NWP 21 No national threshold limitation
• Regional thresholds proposed
– Louisville
• Indiana
• Kentucky
– Huntington
• West Virginia
• Ohio
Newly Proposed General Permits
for Coal Mining
• NWP E Remining
– Proposed 60:40 ratio
• NWP F Underground Mining
– Proposed ½ acre limit
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
NMA Proposal for Streamlined
Permit
• MOA between Corps District and relevant state
coal mining regulators
• SMCRA authority takes lead
• SMCRA Plus Application=SMCRA 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
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
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