Environmental Law Blog
Many of you have never heard of mountaintop removal mining operations, but the United States Environmental Protection Agency estimates that this type of mining will account for the clearing of 2,200 square miles of Appalachian forests by the year 2012. Mountaintop removal mining is a form of surface mining that involves using explosives to remove up to 1,000 vertical feet of overburden (the rock, soil and ecosystem that lie above the coal seam in a mountain) to gain access to underlying seams of coal.
Mountaintop removal mining, as a form of surface mining, is governed by the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The Office of Surface Mining, an agency within the Department of the Interior, administers the SMCRA, which regulates the environmental effects of all coal mining in the United States.
Currently, mining companies are not allowed to dispose of the removed overburden within 100 feet of an intermittent or perennial stream, unless the company can prove the mining activity won't hurt water quality or quantity. This 100-feet buffer zone is commonly referred to as the Stream Buffer Zone Rule.
Citing a need to clarify the Stream Buffer Zone Rule, EPA proposed a rule change in 2004. Due to environmental groups' protests, EPA conducted an Environmental Impact Assessment in 2005 and 2006 and issued the resulting Environmental Impact Statement this November. Under the proposed rule, the Stream Buffer Zone would not apply to "permanent excess spoil fills and coal waste disposal facilities." In other words, the Rule would exempt giant valley fills and sludge-filled lagoons, which are illegal under the current rule if the valleys and lagoons are within 100 feet of an intermittent or perennial stream.
Like every difficult environmental problem, EPA has encountered both opposition and support for the change to the Stream Buffer Zone Rule. Opponents worry that relaxing the Stream Buffer Zone Rule will result in extreme deterioration in water quality and quantity in and around the Appalachian Mountains. Opponents also worry that relaxing the Rule will encourage more mountaintop removal mining, which is environmentally destructive in and of itself.
On the other hand, supporters point to the fact that more than half of the electricity generated in the United States is produced by coal-fired power plants, and that electricity has to come from somewhere. Moreover, mountaintop removal mine is two and one half times as efficient as underground, or traditional, mining and much more cost-effective.
EPA is trying to pass the proposed changes to the Stream Buffer Zone Rule before the executive administration changes on January 20, 2008. Do you think EPA is doing the right thing? What alternatives to amending the Stream Buffer Zone Rule could entice both proponents and opponents to reach a compromise?
The State of Missouri depends on the Missouri River for many uses. The River serves as the water supply for approximately one-half of Missouri's 5.6 million citizens. More than half of the water delivered by public water supplies to Missourians is for domestic use. Thousands of acres of Missouri farm land are adjacent to or otherwise directly affected by the flow of the Missouri River, particularly when the river rises. A number of large Missouri metropolitan areas-including the two largest, St. Louis and Kansas City-are located on the Missouri River.
The United States Army Corps of Engineers (the "Corps") operates six dams and reservoirs on the main stem of the Missouri River. Those dams and reservoirs are located in Montana, North Dakota, South Dakota, and Nebraska. Pursuant to the Flood Control Act of 1944, the Corps adopted and published a Master Water Control Manual in 1979, later revised in 2004, for the purpose of systematically operating the main stem Missouri River reservoirs.
During the process leading up to adoption of the 2004 Master Manual, the Corps considered alternatives to managing the River's water resources, ranging from no change from the prior manual to allowing the river to run its course as if the dams did not exist. The Corps, however, did not study the environmental effect of a bimodal spring rise intended to stimulate the spawning activities of the pallid sturgeon, an endangered fish species native to the Missouri River. Despite the Corps' failure to study the environmental effect of a bimodal spring rise, the Corps adopted the bimodal spring rise as part of the Master Manual in 2004. In so doing, the Corps rejected the various alternatives to the bimodal spring rise that were formally studied.
To effectuate the spring rise, the Corps releases extra water from the northern dams twice each year in order to alert the pallid sturgeon that it is spawning season. According to the Corps, the rise is necessary for the survival of the fish, but the Corps has never presented any evidence to support that assertion.
The process leading to the adoption of the 2004 Master Manual has been the subject of much litigation. The Flood Control Act of 1944 charges the Corps with the dominant functions of maintaining both flood control and navigation along the Missouri River System. The State of Missouri often finds itself at odds with its upstream neighbors over the relationship between these two functions. Navigation and flood control along the Missouri River are essential to commercial shipping and agricultural activities up and down the Missouri River throughout central Missouri. Therefore, the State of Missouri needs the Corps to release water from the northern dams at strategic times throughout each year, while withholding water during periods of heavy rainfall.
On the other hand, northern states experience droughts and other, less severe periods of regular water shortages throughout each year. Those states need the water from the Missouri reservoirs to support their recreation industry. The resulting conflicts often lead to litigation among the State of Missouri, the Corps, and various northern states. This litigation usually attracts the attention of both the local and national media, which is how you have traditionally been informed about Missouri River issues. If you have any questions about the general policies behind the State of Missouri's position or specific cases you've read about in the past, feel free to ask away.
Under the Clean Water Act, a developer must obtain Section 401 Water Quality Certification ("401 Certification") before it can obtain a Section 404 Nationwide permit from the U.S. Army Corps of Engineers for "dredge and fill" activities if the activities will have environmental impacts on "waters of the United States." The Corps' regulations define "dredged material" as material that is excavated or dredged from waters of the United States. "Fill material" is any material used for the primary purpose of replacing an aquatic area with dry land or changing the bottom of the elevation of a waterbody. A developer will probably need a Section 404 Nationwide permit from the Corps if she, for example, builds a building or parking lot on or near a creek. As a delegated program under the Clean Water Act, the State of Missouri is responsible for issuing 401 Water Quality Certifications.
By issuing a 401 Certification, the State of Missouri verifies that a proposed development project will not violate water quality standards. As part of the 401 Certification, Missouri may require project developers to take specific actions to ensure the protection of the quality of the waters surrounding the development site. These required actions are called conditions. One of the more common conditions required of project developers is compensatory mitigation. Compensatory mitigation means "the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or, in certain circumstances, preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved." 33 CFR § 332.2 (2008).
Before Missouri can require compensatory mitigation for jurisdictional wetlands as a condition in a 401 Certification, the Corps must first determine that the wetland in question constitutes a jurisdictional wetland, or "waters of the United States," under the Clean Water Act. If the wetland constitutes waters of the United States, then the Corps must determine the wetland's jurisdictional classification.
Depending on the classification of the wetland and the degree of proposed environmental impact, the State then must determine how much compensatory wetland mitigation must be required of the project developer. Some examples of jurisdictional classifications and accompanying mitigation ratios are: (1) farmed wetlands with a 1-1.5 mitigation ratio, (2) wooded wetlands with a 2-4 mitigation ratio, and (3) open water with a 1-1 mitigation ratio.
Once the Department assigns a mitigation ratio to the development project, the project developer must submit an application to the Department for 401 Certification that details how the developer will achieve the mitigation ratio in a way that least impacts the environment. The portion of the 401 Certification detailing the mitigation plan is conveniently called the Mitigation Plan. The Mitigation Plan must be submitted and approved before work can begin on the project.
Missouri prefers that developers conduct or arrange for mitigation to occur on-site and in-kind. In other words, developers should arrange for mitigation to occur in the same watershed as their development and the mitigation project should restore the same type of waters that were impacted by the project. For example, if a developer fills in a stream, then Missouri could require the developer to create another stream in the same watershed as the development project.
Three types of wetland mitigation are available in Missouri. First, mitigation banks are sites or a suite of sites, where resources (such as wetlands, streams, and other riparian areas) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for environmental impacts authorized by 404 Nationwide permits. Developers can purchase credits from mitigation banks in order to satisfy their mitigation obligations. Conveniently, the mitigation is already completed, so the mitigation occurs instantly.
Second, in-lieu fee program credits are allowed where permitted environmental impacts are located within the service area of an approved in-lieu fee program, and the sponsors of those programs have the appropriate number of resource-type credits available. Similar to a mitigation bank, an in-lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor. Id. In Missouri, the only in-lieu fee program sponsor is the Stream Stewardship Trust Fund, which is managed by the Missouri Conservation Heritage Foundation.
Third, developers applying for Section 404 Nationwide permits can agree to take personal responsibility for mitigation projects. In so doing, the developer must propose a project that meets the approval of the Corps, the Missouri Department of Natural Resources, and the Missouri Department of Conservation.
Currently, the Stream Stewardship Trust Fund ("SSTF") is the only in-lieu fee program authorized in the State of Missouri. The Missouri Conservation Heritage Foundation sponsors the SSTF, which mostly provides in-lieu fee credits for streams and other forms of continually flowing waters of the United States.
Costs associated with participating in the SSTF are based on market forces and the anticipated cost of stream mitigation projects in the area where stream impacts were permitted. Current SSTF credits are worth approximately $35 each. Compensatory mitigation payments are based on average cost estimates to correct activity-specific impacts to stream resources.
The Foundation holds mitigation resources collected in an interest-bearing escrow account, in an investment instrument, or banking institution. The Foundation must account for the funds held, subject to an audit by the Corps at any time. Annually, the Foundation must provide the Corps with an account statement that states the balance of the SSTF, investment instrument in which the SSTF invests, and a list of stream projects and associated costs supported by the SSTF.
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