Surface Coal Mining:

Information on Clean Water Act Section 404 Permit Reviews under Enhanced Coordination Procedures in Appalachia, Focusing on West Virginia

GAO-11-101R: Published: Oct 19, 2010. Publicly Released: Nov 18, 2010.

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In 2009, West Virginia accounted for about 43 percent of the surface coal mining production in Appalachia. Surface coal mining in the mountainous areas of Appalachia--a process often referred to as mountaintop mining--has generated opposition in recent years because of its impact on landscapes, streams, ecosystems, and communities. In mountaintop mining, before the underlying coal can be extracted, the land is cleared of forest and other vegetation. Explosives or other techniques are then used to break up the overlying solid rock, creating dislodged earth, rock, and other materials known as "spoil." Some or most of the spoil is placed back on the mined-out area; however, spoil that cannot be safely placed back is often placed as "fill" in adjacent valleys or hollows. In some cases, this fill buries the headwaters of streams. Activities associated with surface coal mining are regulated under both the Surface Mining Control and Reclamation Act (SMCRA) and the Clean Water Act (CWA).3 SMCRA requires mine operators to obtain a permit before they begin mining. In West Virginia, the West Virginia Department of Environmental Protection (WVDEP) administers the SMCRA permit program, subject to the Department of the Interior's (Interior) Office of Surface Mining Reclamation and Enforcement's (OSM) finding that the state program is in accordance with federal law. OSM annually evaluates how well the state program is administered. At the beginning of 2009, many Clean Water Act (CWA) section 404 surface coal mining permit applications for operations in Appalachian states, including West Virginia, had been pending for over a year because of litigation and other issues, creating a backlog. A case challenging the adequacy of the Corps' analysis of environmental impacts on several section 404 permits was decided in the Corps' favor in February 2009. In March 2009, at Environmental Protection Agency's (EPA) request, the Corps identified 48 pending permit applications that it anticipated would reach permitting decisions within 60 days. EPA reviewed these 48 applications and identified 6 for which it had substantial environmental concerns. The Corps processed the other 42 in accordance with existing procedures. For the 6 permit applications of concern, as of August 11, 2010, the Corps had issued section 404 permits for 2, EPA and the Corps were still reviewing 3, and the applicant had withdrawn 1. For the other 42 permit applications, the Corps issued permits for 28, 3 were withdrawn, 7 were withdrawn but later resubmitted, and 4 were pending, as of September 3, 2010. After EPA completed its review of these 48 permit applications, it, along with the Corps, worked together to develop enhanced coordination procedures (ECP) to review the remaining backlog of pending section 404 permit applications for the Appalachian states. The ECP was included as an element of an interagency action plan announced on June 11, 2009, through a memorandum of understanding signed by EPA, the U.S. Army, and Interior. In order to facilitate timely resolution of permit applications subject to the ECP, Corps districts and EPA regions are to discuss applications identified as requiring additional review and coordination before the beginning of the formal 60-day review process to reduce the total time necessary to reach agreement on each permit. Congress asked us to determine (1) the number of surface coal mining permit applications at each stage of the ECP review process, (2) the extent to which EPA Region 3 and the Corps' Huntington District are coordinating during the stages of the review process, (3) how EPA has communicated the requirements an applicant needs to meet to receive a CWA section 404 permit in West Virginia, and (4) what EPA and the Corps' plans are for processing new permit applications that were not among those listed as of June 11, 2009.

As of August 11, 2010, for the 79 CWA section 404 permit applications on the final ECP list, the Corps had issued permits for 6 applications, 1 application was undergoing the 60-day ECP review process, 36 applications were awaiting the start of this process, and 36 applications had been withdrawn. Federal agencies took the following steps to develop the final ECP list that EPA published on September 30, 2009. First, at the request of EPA and other federal agencies, the Corps initially identified a list of 108 permit applications at various stages of review for which it had issued a public notice or coordinated with EPA, as of March 31, 2009, that needed additional evaluation. According to Corps officials, this list was developed quickly and contained 31 permit applications that the Corps and EPA subsequently decided should not be considered for the ECP. As a result, the two agencies removed the 31 applications and added 2, reducing the final ECP list to 79 applications. EPA worked to develop a consistent approach for reviewing these applications to determine if they should be subject to the ECP review process. To make this determination, EPA used its Multi-criteria Integrated Resource Assessment (MIRA) tool to assess the 79 applications against four general areas of concern, which it derived from regulations: (1) minimization and avoidance of impacts to aquatic resources, (2) water quality impacts, (3) cumulative impacts, and (4) mitigation measures. EPA concluded that all 79 applications had at least one area of concern, and it therefore included all 79 in the final ECP list that it published on September 30, 2009. Of these 79 applications, the Corps' Huntington District is responsible for reviewing 28. As of August 11, 2010, the Corps' Huntington District had issued permits for 5 applications, 15 applications were awaiting the start of the 60-day ECP review process, and 8 applications had been withdrawn. For one of the eight applications that had been withdrawn, the applicant redesigned the operation, reapplied, and received a section 404 permit outside of the ECP process, and an additional three are redesigning their applications and will be reapplying for a section 404 permit, according to the Corps' Huntington District.

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