(Note: to print this document, download it and print using your word processor) 4/13/99 OSM Action Plan: A Process for Providing Effective Coordination in the Evaluation of Surface Coal Mining Operations Resulting in Placement of Excess Spoil Fills in the Waters of the United States I. Background The acceleration in the number of mountaintop removal projects, especially in West Virginia, the increasing scale of individual surface mining operations, and the spread of valley stream filling for disposal of mining spoil, led several Federal agencies participating on the White House Wetlands Task Force to begin discussions in spring 1998 on development of an improved framework for regulating this activity. In the summer of 1998, several West Virginia citizens and the West Virginia Highlands Conservancy filed suit against the West Virginia Department of Environmental Protection (WVDEP) and the Corps of Engineers (COE). The suit, in Federal District Court (S.D. WV, Bragg v. Robertson), claimed inappropriate application of requirements in the Clean Water Act (CWA) and the approved West Virginia program under the Surface Mining Control and Reclamation Act (SMCRA). The Federal agencies merged their effort to build a more satisfactory regulatory framework with negotiations to settle the Federal counts in the lawsuit, and in December 1998, a Settlement Agreement was reached. Four Federal agencies which administer regulatory and review authorities for surface mining and associated valley fills signed the agreement: the Environmental Protection Agency (EPA), COE, Office of Surface Mining (OSM) and Fish and Wildlife Service (FWS). WVDEP also joined the agreement. Litigation issues surrounding SMCRA-related elements of the West Virginia State Program remain unresolved. The Settlement Agreement requires a two-year study on the environmental consequences of surface coal mining and valley fills, as well as an evaluation of regulatory alternatives. The study findings and regulatory alternatives will be issued in an Environmental Impact Statement (EIS) in early 2001. During the interim period while the EIS is under preparation, the Settlement Agreement requires state and Federal agencies reviewing a coal mine permit application to address the CWA standards for valley fill construction in a more comprehensive manner. This will be accomplished with coordinated coal mine application reviews outlined by a Memorandum of Understanding (MOU). The MOU will apply until the preferred regulatory alternatives recommended by the EIS are in place. This document summarizes the interim approach for coordinated application processing. II. Memorandum of Understanding OSM, EPA, FWS, COE, and WVDEP have recently entered into an MOU consistent with the Settlement Agreement, with the goal of enhancing interagency cooperation and coordination in the review of permits for surface coal mining operations that result in valley fills requiring CWA permits. The MOU identifies a process to facilitate permit review in order to ensure compliance with all applicable Federal and state laws, improving time lines and predictability in the review process, while minimizing adverse environmental impacts. This interagency process is applicable to Federal and state programs under SMCRA, the National Environmental Policy Act (NEPA), CWA Sections 402 and 404, state water quality certification provisions of CWA Section 401 and, applicable provisions of the Endangered Species Act (ESA) and Fish and Wildlife Coordination Act (FWCA). The MOU is intended to build upon existing regulations and policies in the review of surface coal mining operations and associated valley fills in a manner that provides for effective sharing of information required under the various programs and reducing redundancy and duplication. Interagency review will focus on approving surface coal mining operations that return the maximum amount of spoil material to the mined area while minimizing excess spoil that must be placed in waters of the United States. Consistent with the terms of the Settlement Agreement, the MOU clarifies that as a general matter, proposed valley fills affecting watersheds draining less than 250 acres will be eligible for approval under a COE general permit. Proposed valley fills that exceed this threshold, or in circumstances where threatened or endangered species or other Federal Trust Resources may be affected, the MOU recognizes that a Section 404 individual permit will be required. The coordination outlined in the MOU is most relevant in circumstances where the proposed surface coal mining operation and associated valley fills will be evaluated under both SMCRA and an individual CWA Section 404 permit, which also triggers review under NEPA, ESA, and FWCA. The MOU establishes the unprecedented framework for coordinating the reviews under each of these programs so that the agencies can take advantage of their combined experience and expertise to ensure fair, effective and timely decision making. III. MOU Implementation for Pending Surface Mining Applications Requiring Individual 404 CWA Permits - Work Plans Interim Permitting Issues: Application of individual 404 permits (IP) to valley fills associated with surface mining operations requires compliance with the COE 404 regulations and public interest review, and--notably--with the 404(b)(1) guidelines promulgated by EPA. In addition, as issuance of a 404 permit is a major Federal action, it requires COE to conduct the appropriate review of the potential environmental impacts under NEPA. The NEPA review will result in either an environmental assessment which supports a finding of "no significant impact" (FONSI); or an EIS, if the proposed permit will be a major Federal action having a significant impact on the environment. NEPA and CWA 404 IPs also require a more complete public participation process than approvals under the Nationwide Permit (NWP). Because most coal mine permits approved under SMCRA received an NWP prior to the Settlement Agreement, the regulatory authorities, including OSM, EPA, COE, and the states have not established procedures or required permit application documentation to support COE analysis for the purpose of completing an IP and the associated NEPA analysis. Note that mining operations with valley fills are also required to obtain pollutant discharge permits under section 402 of the CWA. WVDEP is authorized to implement the 402 program and has a well-established process which has been integrated with SMCRA reviews. There may be modifications in 402 permit requirements, for instance to improving monitoring, but there are no major issues associated specifically with implementing the Settlement Agreement. Currently, 38 proposed West Virginia surface coal mining operations involving valley fills are in various stages of SMCRA or CWA permitting. Unless the mining companies proposing these operations can reduce their valley fills sufficiently, an estimated 50 percent of these operations will need to obtain IPs and NEPA reviews. Interim Permitting Goals: The MOU will facilitate interagency communication and coordination to assist in meeting three basic goals: 1. Form an interagency team environment for processing SMCRA and CWA permit applications. 2. Assist WVDEP in developing procedures, technical analysis, and associated permit decision documentation so that SMCRA permitting process can serve as a platform for the CWA 404 IP and NEPA analyses. 3. Ensure that applications meet SMCRA, CWA, and other relevant laws so adverse impacts to public health and safety are minimized and environmental protection is maximized. Short-term Work Plan: The permitting agencies involved agree that building upon the foundation of the SMCRA surface mining application is a logical basis for creating an effective permitting process for the necessary CWA 404 IP (as it now does for the CWA 402 permit). The desired outcome of the interagency team review and assistance to WVDEP under the MOU will be a WVDEP SMCRA application and decision package that can also be used for CWA 402 and 404 permitting decisions--including NEPA requirements. To improve the SMCRA permit foundation and to achieve the desired outcome as quickly as possible, OSM will be the lead agency to assist WVDEP in reviewing permit applications, while maintaining an interagency team environment with EPA, COE, and FWS in addressing their responsibilities. OSM is making several commitments: OSM will immediately assign a special full-time technical assistance task force to assist WVDEP and COE in processing IPs. OSM has considerable Federal permitting and associated NEPA experience because of its responsibilities in processing Federal Land and Tennessee Federal Program Mine Plans. OSM staff assigned will be experienced in the SMCRA permitting and NEPA processes, so as to readily identify items that must be included in the SMCRA application to address CWA 404 and NEPA requirements. OSM will coordinate with EPA, FWS, COE and WVDEP in any meetings with mining companies or field investigations to facilitate early identification of issues and opportunities for minimizing environmental impacts. OSM and EPA will provide technical assistance to COE and WVDEP in merging the requirements of the SMCRA permit applications with the requirements of CWA permitting processes. OSM and WVDEP will assist COE in analyzing and writing the IP decision documentation, including environmental assessments for the pending list of permit applications requiring IPs. Activities of the agencies will be organized so that assistance occurs on specific individual permit applications, while at the same time creating generic procedures and protocols for routine application processing. Two examples of SMCRA permit review topics that are also central to the CWA IP decision where OSM will provide technical assistance include, but are not limited to: OSM assisting WVDEP in the implementation of the recently-formulated procedure for determining approximate original contour. The interagency team will rely on implementation of this concept for demonstration that the disposal of excess spoil material in the waters of the United States has been minimized to the extent authorized by law. This analysis will form the basis for consideration of alternatives to minimizing valley fill impacts as required under CWA and NEPA. OSM will assist WVDEP in the enhancement of the SMCRA permitting process to maximize protection of the hydrologic balance. It is intended that the SMCRA hydrologic protection requirements (probable hydrologic consequence analyses and hydrologic reclamation plans of the applicant, along with cumulative hydrologic impact assessments of WVDEP) will be enhanced to serve as the basis for CWA decisions. OSM will work closely with all agencies to ensure that SMCRA-related permits can serve as the basis for other agencies' requirements and sustain legal challenges. OSM will provide expert witnesses to WVDEP on reviewed permits to support any permitting decisions made in accordance with recommendations from OSM. Assistance efforts will concentrate on those issues subject to current SMCRA-related litigation. The approach will apply to SMCRA permit applications currently in review by WVDEP, along with future applications received. The OSM special assistance efforts will end when it can be determined that the effective coordinated permit processes is fully functional and actions are occurring routinely, consistently, and as expeditiously as possible. Long-term Work Plan: Following hands-on experience by all of agencies in the short-term approach, (e.g. learning what works and what requires further programmatic change), the agencies will develop a routine process for future permit applications to satisfy SMCRA and CWA requirements. WVDEP, COE, OSM, and EPA will jointly analyze the 404(b)(1) guidelines and determine where existing data provided in the SMCRA application satisfies all CWA and IP provisions. If additional data, narrative, maps, plans, or demonstrations must be integrated into the SMCRA application to provide for an application to be considered complete for CWA purposes, the agencies will collaborate in reformulating the SMCRA application to fulfill information needed for CWA decisions. In the long run, the agencies will endeavor to set up a SMCRA/CWA 404 IP process model that can be used as a basis for consideration in the programmatic EIS recommendations for permanent regulatory procedures. The long-term approach will evaluate all options for establishing a streamlined permitting process that is conducive to situations existing where dual state and Federal licensing are mandated.