20 th 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 –4 th 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 –4 th 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 9 th 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