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

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.