Tennessee Mining Conference

November 2, 2015

Update on Legal Issues Affecting Mining

Prepared by:

William L. Penny

Topics

• Waters of the U.S.• Stream Protection Rule• Defenders v. Jewell• Land Unsuitable for Mining• Update on Mingo Logan

What are Navigable Waters

• Waters of the United States (“WOTUS”)• What are Waters of the United States?

• New Rules:Vol. 80 Fed. Reg. 124, June 29, 2015• Effective August 28, 2015 [STAYED]

• What are Traditional Navigable Waters• Background Cases

• U.S. V. Riverside Bayview Homes• SWANCC• Rapanos/Carabell

Traditional Navigable Waters

• Subject to Section 9 or 10 of the Rivers and Harbors Act, or

• Federal court has determined it to be navigable in fact under federal law; or,

• Waters currently used for commercial navigation, including waterborne recreation; or

• Water have historically been used for commercial navigation including commercial waterborne recreation; or,

• Waters are susceptible to being used in the future for commercial navigation, including commercial waterborne recreation.

Riverside Bayview Homes (1985)

• Adjacent wetlands are “inseparably bound up” with waters to which they are adjacent.

SWANCC

SWANCC (2001)

Solid Waste Agency of Northern Cook Co. v. USACE)• Isolated non-navigable intrastate ponds by

migratory birds not a basis for jurisdiction• Court explained Bayview – “significant nexus”

between wetlands and navigable waters is what informed the Court’s reading of the CWA

• Regulation was at the outer bounds of the ability of the government to regulate under the Commerce Clause of the U.S. Constitution.

• First use of the term “significant nexus” to a TNW

Rapanos/Carabell

Rapanos/Carabell (2006)

• RAPANOS--20 MILES FROM NAVIGABLE WATER CONNECTED THROUGH SERIES OF TRIBUTARIES AND DRAINS

• CARABELL—NO DIRECT CONNECTION BECAUSE WETLAND WAS SEPARATED BY A BERM FROM A DITCH THAT LED TO NAVIGABLE WATERS

Scalia Approach

• a relatively permanent body of water connected to traditional interstate navigable waters);

• the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins.

KENNEDY APPROACH• MUST BE A SIGNIFICANT NEXUS TO

TRADITIONAL NAVIGABLE WATERS• NOT HYDROLOGIC CONNECTION• FOCUS ON FUNCTION, NOT LOCATION• Chided Agency for not developing rules after

SWANCC

STEVENS APPROACH• CHEVRON-AGENCY DEFERENCE• ANY HYDROLOGIC CONNECTION OKAY

Significant Nexus

Definition: A water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of other covered waters more readily understood as ‘navigable.’ For an affect to be significant, it must be more than speculative or insubstantial. . . .

New Definition of WOTUS

• Final Rule May 26, 2015, Effective August 28, 2015 [Stayed]

• Amends a number of Rules administered by EPA• 29 States, including Tennessee, have appealed the

WOTUS Rule• EPA/Corps exceeded regulatory authority• Cooperative Federalism

Scientific Basis?

• Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (the "Connectivity Report")

• SAB concurred that tributaries as a “Group” are connected.

• Result was a general statement that we are all downstream, so all water upstream is jurisdictional

WOTUS Rule - Categorical Waters

1. Use or susceptible for use in Interstate or foreign commerce

2. Interstate waters and wetlands

3. Territorial seas

4. Impoundments of 1-3

5. All tributaries [note definition] of waters identified in 1-3

6. Waters adjacent to 1-5 waters

7. Prairie potholes and other features not in Tenn.

8. Other waters

WOTUS Rule - Devil in the Details

• Definition of Tributary:• Water that contributes flow to 1-4 waters• Bed, bank and ordinary high water mark

• Covered Tributaries as a category are similarly situated and have a significant nexus to 1-4 waters• Significantly affect the chemical, physical or

biological integrity of waters of the U.S.

• No case by case determination• No matter how small or insignificant

Significant Nexus Test

Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase "navigable waters," if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as

"navigable." When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term "navigable waters

• Kennedy test excludes waters that are speculative or insubstantial-How is that determined?

• New Rules appear to be using pre-Rapanos “any hydrologic connection”

WOTUS Rule - Adjacency

• Adjacent-- Bordering, contiguous or “neighboring” a 1-5 water

• Neighboring• Waters within the 100 feet of the OHM of a 1-5 water,

even if only one foot of it is that close.• If within the 100 year floodplain of a 1-5 water, then

the distance is 1,500 feet from the OHM, even if only one foot is that close.

• 1,500 feet of the high tide line or OHW of the Great Lakes

WOTUS Rule - Exclusions

• Waste treatment systems• Prior converted cropland• Ditches

• Ephemeral flow that are not a relocated tributary or excavated in a tributary

• Intermittent flow that are not relocated tributary, excavated in tributary or drain wetlands

• Do not flow directly through or into a 1-3 water

WOTUS Rule - Exlcusions

• Artificially irrigated areas on dry land• Constructed lakes and ponds in dry land (no

impoundment of a Jurisdictional water)• Artificial reflecting pools or swimming pools• Groundwater• Constructed ornamental waters in dry land.• Water filled depressions incidental to mining or

construction• Erosional features• Puddles

WOTUS Rule - Exclusions

“[s]tormwater control features constructed to convey, treat, or store stormwater that are created in dry land

Wastewater recycling structures

What is Dry Land

• The Agencies rejected providing a definition for dry land in the final rule because “there was no agreed upon definition given geographic and regional variability.”

• Agencies’ position is “‘water of the United States’ is not considered ‘dry land’ just because it lacks water at a given time.

• Can be “dry land” even if wet at any given time.• Agencies will clarify during implementation

Other Waters Case by Case

• Waters within the 100-year floodplain of any waters 1-3

• Waters within 4,000 feet of the high tide line or the OHM of a 1-5 water.

Challenges

• "[w]here an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result." 531 U.S. 159, 172. (SWANCC-Rapanos)

• Do the rules get more into local land use rather than interstate commerce?

• 30 states-Tennessee among them.• ---Exceeds Commerce Clause (SWANCC)• ---Violates 10th Amendment

• Corps of Engineers states Rule is not Defensible

WOTUS - Examples of Concerns

WOTUS – Examples of Concerns

WOTUS?

WOTUS?

Example of Expansion

Jurisdictional Under Final WOTUS Rules but Not Current Guidance

Ordinary High Water Mark

• “presumably provides a rough measure of the volume and regularity of flow. Assuming it is subject to reasonably consistent application [the OHWM] may well provide a reasonable measure of whether specific minor tributaries bear a significant nexus…

• Yet the breadth of this standard- which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water-volumes toward it- precludes its adoption as the determinative measure

• ---Justice Kennedy in Rapanos

• Note that the Connectivity study by EPA does not refer to tributaries as having an OHM.

Current JD

Source: USACE Jurisdictional Determination Form Instructional Guidebook

Current JD

Source: USACE Jurisdictional Determination Form Instructional Guidebook

Current JD

Source: USACE Jurisdictional Determination Form Instructional Guidebook

Current Interpretations

source: USACE Jurisdictional Determination Form Instructional Guidebooks

Federalism

• “the federal principle or system of government” and defines “federal” as “having or relating to a system of government in which several states form a unity but remain independent in internal affairs.” Oxford English Dictionary

Erosion of Federalism

• States (not EPA) is responsible for establishing Water Quality Standards• Designated Uses• Criteria to support the uses• Antidegradation Statement

• Ephemeral Streams are Wet Weather Conveyances

• Wet Weather Conveyances are not streams (tributaries) under State Law

• EPA has advised that all waters of the U.S., e.g, tributaries, must have at least the four designated uses or others established by the State.

Litigation on WOTUS

• Forums• District Court

• 14 lawsuits in 8 different jurisdictions• North Dakota DC enjoined enforcement of WOTUS rule

for the 13 states part of the litigation• Other DC’s have dismissed citing lack of jurisdiction

• Circuit Court-• Dozen law suits• Consolidated Petitions for Appeal in 6th Circuit• Appeal to 11th Circuit from states in the Georgia DC

lawsuit

• Jurisdictional Aspects• Court of Appeals has jurisdiction over appeals of final

agency actions approving or promulgating any effluent limitation or other limitation”

• District Court hears other appeals of final agency actions

Circuit Court

• 6th Circuit, October 9, 2015• Petitioners were likely to succeed on the merits• No irreparable harm• Delayed ruling on subject matter jurisdiction• Will hear arguments on December 8 on jurisdiction

• 11th Circuit—Petition for Appeal from S.D. Ga. Dismissed because of jurisdictions• Jurisdiction and other arguments in February 2016

Stream Protection Rule

• 1979• 1983 Provided 100’ stream buffer rule• 2004 Proposed Rule to clarify buffer rule-withdrawn• 2008 Clarified that stream impacts must be

unavoidable and comply with CWA• Vacated by Court

• 2015 July 2015-Comment Period expired October 26

Background on SPR

• Nat'l Parks Conservation Ass'n v. Jewell, D.D.C., No. 1:09-cv-00115, 2/20/14.• Invalidated 2008 Stream buffer zone• Basis of the reversal was no Section 7 Consultation

with the Fish and Wildlife Service• Both OSM and NMA argued that they the 1996 Biop was

sufficient

• On October 27, 2015, OSM announced revision process for 1996 Biop as part of the new SPR• Will use 1996 Biop under a MOU with agencies• Will continue to use the 2009 MOU

Stream Protection Rule

• Proposed Rule July 27, 2015• Changes to 30 CFR Parts 700 - 827.• Environmental Impact Statement

• address the impacts of burying and mining through streams, including the protection of aquatic communities in streams located on, adjacent to, and downstream from coal mining operations.

• will analyze alternatives to provide for the restoration of native forests that have been eliminated during the mining process.

• will consider alternatives that will further enhance restoration of mined lands to their approximate original contour

Stream Protection Rule1. A definition of “material damage to the hydrologic

balance”

2. Guidance on how to collect premining environmental data

3. How to conduct ongoing monitoring of groundwater and surface water

4. Restrictions related to impacts on intermittent and perennial streams

5. Ensure use of recent science in protection of surface and groundwater resources

6. Ensure that land is restored to its original ecological function post mining

7. Update and codify requirements to protect threatened and endangered species and critical habitat

Definition Changes

• Part 701.5 Definitions - material damage to the hydrologic balance (outside the permit area) is "any adverse impact from mining activities . . . on the quality or quantity of surface water or groundwater, or on the biological condition of a perennial or intermittent stream, that would… preclude any designated use under sections 101(a) or 303(c) of the Clean Water Act or any existing or reasonably foreseeable use of surface water or groundwater… or … Impact threatened or endangered species, or have an adverse effect on designated critical habitat, outside the permit area in violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.“

• Like WOTUS is this triggers concerns about State responsibilities under the Clean Water Act by usurping role of the states

• Solicits comments on impacts to Ephemeral streams based on the Connectivity Report for WOTUS

• Would require a no disturbance 100 foot buffer for all surface mining activities unless demonstrated that it would not have adverse impacts.

Impact on Tenn. Law

• Tenn. Water Quality Law prohibits removal of coal from the ground within 100’ of a stream

• Allows permits to coal storage, transportation, preparation and processing facilities.

• Tenn. Law has outright ban on mining through streams, but allows permits for incidental activities (road crossings)

Economic Impact

• Appalachiao Direct Jobs 52,566o Indirect and Direct 190,415

• Total Coal Mining• Direct 77,250• Indirect and Direct 280,809

• Interior Department est. 540

Defenders v. Jewell

• Complaint filed May 21, 2013• Defenders of Wildlife• Sierra Club• TCWN• SOCeM

• Defendants• Sally Jewell• DOI• OSM• US Fish and Wildlife

• July 25, 2013 Petition to Intervene• National Mining Association• Tennessee Mining Association

• Mines Affected:• Zeb Mountain Mine 7• Davis Creek Energy Mine 5

• Similar Case Filed in 2015 involving Sterling and Strays (Valley Creek)

Key Issues

• OSM failed to consult with Fish and Wildlife before Issuing SMCRA permits

• Challenges the validity of the 1996 biological opinion• Surface coal mining in accordance with SMCRA is an

incidental take and no additional consultation necessary

• 1996 BIOP does not consider conductivity and its impact on the Blackside Dace and Cumberland Darter

Suit for Injunctive Relief

• Plaintiffs want the permits revoked• Want to require OSM to consult in the future under

Section 7 for all SMCRA permits• Limited to Tennessee?• Status

• Intervention request has not been acted upon• On September 21, 2015 the Court entered an agreed

upon Stay-between government and plaintiffs

Status

• Settlement?• OSM has agreed to engage in Section 7

Consultation• OSM statement in September 14 letter

“OSMRE believes that it is appropriate to use project-specific, formal consultations on these permits to give careful consideration to effects of the actions that may affect listed species or critical habitat, namely (but not limited to), information on the potential effects of in-stream conductivity levels on listed species.”• It also announced it would do a BA on Cooper Ridge-

not a part of the lawsuit.

First Round

District Court Upheld EPA’s authority to veto the permit after the fact

Court of Appeals upheld the decision

Petition to Supreme Court was denied

Second Round

• The hearing before the District Court was an evidentiary hearing under the Administrative Procedures Act

• District Court upheld EPA’s position• Currently on Appeal to DC Circuit Court of Appeals

• Mingo Logan says that EPA did not have substantial and material evidence to support the denial

• Did not document why on the one hand it approved the permit and later what changed to deny it.

• Only 3 permits have been vetoed in the 43 year history of the CWA.

Petition for Lands Unsuitable for Mining

What’s happening?

• Began in 2010• AG is trying to clarify the amount of acreage subject

to buy back in the Champion tract• Does the length of time that permitting has been

halted result in a take?

Questions???