CHAPTER 7 THE IMPACT OF WETLAND REGULATIONS ON DEVELOPMENT OF NEW MINING PROJECTS
| Jurisdiction | United States |
(Nov 1993)
THE IMPACT OF WETLAND REGULATIONS ON DEVELOPMENT OF NEW MINING PROJECTS
Homestake Mining Company of California
San Francisco, California
and C. Mark Raming
SWCA Environmental Consultants, Inc.
Salt Lake City, Utah
TABLE OF CONTENTS
Page
1.0 ASPECTS OF THE SECTION 404 PERMIT PROCESS AFFECTING NEW MINING PROJECTS
1.1 INTRODUCTION
1.2 TASKS REQUIRED BY THE PERMITTEE TO SUBMIT A 404 PERMIT
1.2.1 Delineation of Waters of the United States
1.2.2 Endangered Species and Cultural Resource Surveys
1.2.3 State 401 Certification
1.2.4 Coordination with Corps and Other Agencies
1.2.5 Public Review
1.2.6 Alternatives Analysis
1.2.7 The Project Purpose
1.2.8 Development of Mitigation Plans
1.2.9 Coordination and Preparation of a Third Party NEPA Documentation
1.3 TASKS REQUIRED AFTER PERMIT APPROVAL
1.4 SUMMARY
2.0. CASE STUDIES
2.1 BEARTRACK GOLD MINE PROJECT
2.1.1 Project Summary
2.1.2 Background
2.1.3 Permitting Requirements
2.1.3.1 Wetland Delineation
2.1.3.2 NEPA Coordination
2.1.3.3 Alternatives Analysis
2.1.3.4 Compensation / Mitigation
2.1.4 Permitting Issues
2.1.5 Cultural Resources
2.1.6 Threatened or Endangered Species
2.1.7 Mitigation Engineering and Hydrology
2.1.8 Mitigation Ratios
2.1.9 Perpetuity of Mitigation
2.1.10 Permitting Chronology
2.1.11 Permitting Costs
2.2 RAY COPPER MINE TAILINGS IMPOUNDMENT EXPANSION
2.2.1 Project Summary
2.2.2 Background
2.2.3 Project Issues
2.2.3.1 Identification of Project Purpose
2.2.3.2 Identification of Alternative Analysis Sites
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2.2.3.3 Jurisdictional Waters and Wetland Delineation
2.2.3.4 Special-Interest Species
2.2.3.5 Cultural Resources
2.2.3.6 Groundwater and Surface Water Protection
2.2.3.7 Mitigation
2.2.4 Conclusion
3.0 CONCLUSIONS
LIST OF TABLES
Table 1. Time Required for Permitting
Table 2. Beartrack Section 404 Permitting Chronology Summary
Table 3. Permitting Costs for Beartrack Project
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1.0 ASPECTS OF THE SECTION 404 PERMIT PROCESS AFFECTING NEW MINING PROJECTS
1.1 INTRODUCTION
Mining projects, particularly surface mining projects, due to their scale and the nature of their operations, usually result in some impacts to waters of the United States (U.S.). Projects with limited impacts to waters of the U.S. could fall within the regulatory criteria of a Nationwide Permit. However, projects which result in significant impact to waters of the U.S. will require the full review and compliance required by the individual Section 404 Permit.
The impact of the individual permit process on development of a new mining project can be fairly comprehensive. A whole range of ecological, social and cultural issues can be introduced and explored through the review process initiated by the 404 permit. In many cases the 404 permit opens the door for controversy and time consuming delays for projects that may be fairly easy to permit on all other regulatory fronts. Nonetheless, mining project permit applicants who do their homework and carefully study their alternatives, can successfully accommodate divergent interests and issues while achieving compliance with the Clean Water Act.
The discussion presented within this paper is intended to focus on the basic tasks required to complete an individual Section 404 permit and the range of affects permitting has on the development of a new mining project.
1.2 TASKS REQUIRED BY THE PERMITTEE TO SUBMIT A 404 PERMIT
1.2.1 Delineation of Waters of the United States
Prior to embarking on the Section 404 regulatory pathway the nature and extent of the waters of the U.S. on the project site should be determined. Although the definition of waters of the U.S. at 33 CFR Part 328.3 includes a wide range of aquatic and semi-aquatic environments, there are distinctions which could later have regulatory significance. The key distinction is between "special aquatic sites" and "other waters of the U.S. Special aquatic sites include aquatic habitats such as wetlands, mudflats, and riffle and pool complexes. "Other waters" essentially include all other waters of the U.S. normally considered jurisdictional by the Army Corps of Engineers (Corps).
Wetlands are generally easy to identify due to the standard criteria provided by the Corps in the 1987 Federal Manual for the Identification and Delineation of Jurisdictional Wetlands. Other special aquatic sites, such as mudflats and riffle and pool complexes, although
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less common in the intermountain west, lack the definitive criteria used for wetlands and therefor may need more careful study and consideration.
Other waters of the U.S. are not always clearly definable. Some of these jurisdictional habitats, particularly in the southwest, may be considered waters of the U.S. by virtue of their conveyance of 20 year storm events, the presence of riparian vegetation, connection with navigable waters of the U.S., or their identification as a blue line on U.S. Geological Survey topographic maps. The delineation of the boundaries of "other waters" is often inconsistent, and is in some cases subject to the whims of special-interest groups or other agencies.
Regardless of the vagaries of the delineation process and results, it is important, for reasons that will be discussed later, to maintain the distinction between special aquatic sites (wetlands) and other waters of the U.S. Not all biologists or Corps personnel are aware of the regulatory importance of this distinction and may inadvertently lump all jurisdictional site features under the classification of wetlands.
1.2.2 Endangered Species and Cultural Resource Surveys
Section 404 permits require compliance with other federal regulations as a basic permit condition. Two areas that can require significant effort for mining projects include endangered species and cultural resources. The permitting process can vary significantly depending on the presence or absence of these resources. As a result, prior to submitting a 404 permit application the permittee should execute the appropriate surveys.
If state wildlife agencies or the U.S. Fish and Wildlife Service (USFWS) indicate that endangered species are likely present on or immediately adjacent to the project site then surveys, following the appropriate protocol, must be conducted. If an endangered species is encountered, the results of the report should be submitted to the Corps prior to making an application. If the Corps determines that the nature of the proposed project will result in an impact to the species they will a request a Section 7 consultation with USFWS. Section 7 of the Endangered Species Act has specific time limits associated with it and a routine consultation can be completed in 60 days or less. However, if there are unusual circumstances, active interest groups, or a new listing of an endangered species, the consultation process can be extended to six months or a year. This consultation, if foreseen as being required during the permitting process, can occur concurrent with the development of the permit and not result in delays for development of the project.
Similarly, cultural resources require suitable identification and a plan for mitigation prior to issuance of a permit. Per Section 106 of the National Historic Preservation Act, cultural resource surveys including ethnographic surveys when appropriate are required for projects involving federal lands, federal monies, or when the Corps is the lead agency involving state or private properties. Results of the cultural resources survey must be submitted to the lead land owner (i.e., federal, state, or private). If any cultural resources were observed, an archaeological testing/data recovery plan should be included with the survey results. The lead land owner in turn coordinates with the Corps. Compliance with Section 106 requires submittal
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of the survey report to the State Historic Preservation Office (SHPO) by the lead agency. The survey, testing/data recovery plan, and SHPO review and approval can take from three months to one year depending on the quantity and significance of resources on the site. This work can happen prior to or concurrent to other permitting efforts.
1.2.3 State 401 Certification
State 401 water quality certification can play a large role in permit approval, particularly in the case of nationwide permits. If a state denies the 401 certification, or adds a condition to a particular nationwide permit on the basis of the 401 certification, that project plus all other similar proposed projects in the particular region could be affected. For example, the State of Idaho placed special conditions on a project attempting compliance with the Clean Water Act under nationwide permit 26. That condition required that an individual water quality certification be authorized for projects greater than one half (1/2) acre in size. This changed the pre-discharge notification requirements for the Idaho nationwide 26 permit from projects greater than one (1) acre to projects greater than one half (1/2) acre.
1.2.4 Coordination with Corps and Other Agencies
When a Section 404 individual permit is required, a pre-application meeting is advisable. As mentioned above, the 404 permit application often serves as the nexus for input and review by additional federal and state resource agencies. A pre-application meeting is an opportunity to have the Corps coordinate an interagency meeting prior to submitting an application. This meeting can be used by the permittee and the interested agencies to air issues and concerns. In addition, familiarizing the agencies with the proposed project and receiving constructive criticism from them offers the permittee an opportunity to submit a more complete application to informed...
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