![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Spruce No. 1 Mine 404(c) Questions & Answers
Q: What is the Spruce No. 1 Mine Project?
A: The Spruce No. 1 mine, located in Logan County, West Virginia, represents the largest authorized mountaintop removal operation in Appalachia and occurs in a watershed where many streams have been impacted by previous mining activities.
Q: Why is EPA taking a 404(c) action (PDF) (2 pp, 129K, About PDF) on the Spruce No. 1 Mine?
A: EPA is taking this step because we are concerned that the project could result in unacceptable adverse effects on the aquatic system, particularly to water quality and fish and wildlife resources, and we are concerned that the permit may not be consistent with the Section 404(b)(1) Guidelines (230.10(b)(1)).
The magnitude and scale of direct, indirect and cumulative impacts associated with the Spruce No. 1 mine that have not been addressed through the permit evaluation and issuance make it necessary for EPA to initiate 404(c) in this circumstance. The project as authorized will bury over seven miles of streams and additional analyses by EPA have identified the potential for its associated discharges to cause further stream degradation. In addition to the cumulative adverse water quality impacts, there are 12 additional surface mining projects either proposed or authorized but not built in the same watershed. The cumulative impacts on the degraded sub-basin of Spruce No. 1 together with these 12 additional projects, if all built, have not been assessed and factored in the regulatory context.
Q: Why, after many years of coordinated review by the Federal Agencies, is EPA exercising its authority under 404(c) now?
A: EPA is not taking this action lightly. EPA's preference is to address environmental concerns effectively prior to permit issuance. The unique circumstances of this case are what give rise to the seriousness of EPA's action. EPA has consistently expressed concerns regarding the magnitude and potential severity of the environmental impacts from the Spruce No. 1. The Spruce No. 1 mine represents the largest authorized mountaintop removal operation in Appalachia. While we recognize that the project has been modified over time, the project, as authorized, represents potentially unacceptable adverse effects. EPA believes the Spruce No.1 represents an unusual set of circumstances we do not expect to be repeated again.
Q: What happens next?
A:. The letter sent by Region III is the start of the process. It states that EPA believes the project may result in unacceptable adverse effects on fish, wildlife, and water quality and invites the Corps and the company to provide EPA with any additional information that may inform EPA's consideration of the impacts from the project. EPA will use this opportunity to work with the Corps and the company to evaluate new information and determine how best to proceed in accordance with the Clean Water Act and applicable regulations.
Q: What does this mean for the project?
A: The Spruce No. 1 project was originally proposed in the 1990s and has been the subject of lengthy litigation. A permit ultimately was issued in 2007, but enjoined by a federal court in 2008. The letter issued by EPA does not by itself have the effect of revoking or suspending the already-issued permit
Ultimately, EPA's process will result in one of three outcomes: (1) EPA could decide to use its discretion to prohibit any discharges from the project, including the construction of valley fills, consistent with Section 404(c); (2) EPA could decide that the project cannot go forward under the permit as currently issued, but could go forward under a modified permit that would not result in unacceptable adverse effects; or (3) EPA could decide that the permit as currently issued is sufficiently protective.
Q: How does EPA's decision relate to the court case?
A: The federal government has asked the court to stay the litigation while EPA determines whether to proceed with the Section 404(c) process. The parties to the litigation may ask the court to take various actions based upon the fact that EPA has initiated this process.
Q: How does this action relate to the Interagency Action Plan and review of 79 permits that has been reported?
A: This action is consistent with EPA's commitment to address the significant adverse impacts of surface coal mining in the Appalachian region. While not contemplated in the Memorandum of Understanding signed by EPA, the Department of the Army and the Department of the Interior in June, the unique circumstances and magnitude, scope and severity of the impacts associated with the Spruce No. 1 mine have given rise to the seriousness of EPA's actions.
Q: What is a CWA Section 404(c) action and how often has EPA used this authority?
A: The EPA Administrator has the authority (which has been delegated to the Assistant Administrator for Water) to prohibit use of a site in waters of the United States or modify the nature of the project if it is determined that the project would result in unacceptable adverse environmental impacts. The decision to prohibit or restrict such activities must be based on a finding by the Administrator that such disposal would have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. The term “unacceptable adverse effect” is defined as an impact that is likely to result in significant loss of, damage to, or degradation of the resource.
CWA Section 404(c) action should be initiated where necessary to protect important water resource functions and values under the CWA Section 404 program jurisdiction, consistent with the statute. CWA Section 404(c) is a discretionary authority. Recognizing the power and effectiveness of this authority, EPA is judicious in its use of its CWA Section 404(c). Since Congress passed the CWA in 1972, twelve projects have been vetoed by EPA.
General Questions and Answers Regarding 404(c)
Q: What is the CWA 404(c) process?
A: The CWA 404(c) process is started with an initiation letter to the Corps, followed by the Region's Proposed Determination, opportunity for public hearing, Region's Recommended Determination, and a final decision by the Administrator (delegated to Assistant Administrator for Water). A final CWA Section 404(c) action takes, on average, 1 year to complete. During the time that the CWA Section 404(c) action is in process, the U.S. Army Corps of Engineers and project proponents cannot proceed with the proposed activity unless the permit has already been issued.
The initiation letter (15-Day letter) is transmitted by the Regional Administrator or his designee notifying the U.S. Army Corps of Engineers, the property owner, and the project proponent of the Regional Administrator's intent to issue a public notice of a proposed CWA Section 404(c) determination. This letter provides the recipients with 15 days to demonstrate that no unacceptable adverse effects could result or to notify the EPA of corrective action which would be taken to prevent unacceptable adverse effects.
If within 15 days the recipients of the initiation letter have not demonstrated to the satisfaction of the Regional Administrator that no unacceptable adverse effects will occur, the Regional Administrator will prepare to publish notice of a proposed determination to restrict or prohibit the site, allowing opportunity for a public hearing.
Based on the record developed during the public comment period, the Regional Administrator or his designee must either withdraw the proposed determination or prepare a recommended determination to restrict or prohibit the site because unacceptable adverse effects are likely to result. If, however, the regional decision is to withdraw the proposed determination, the Administrator has the option of reviewing such action.
Should a recommended determination be forwarded, the Administrator will evaluate the recommendation and record affirming, modifying or rescinding the recommendation of the Regional Administrator or his designee. For purposes of judicial review, a final determination constitutes final agency action under CWA Section 404(c).
Q: What is a proposed determination?
A: The proposed determination begins the process of determining whether unacceptable adverse effects will likely occur as a result of the proposed project and serves as the mechanism for soliciting public comments on the 404(c) action. A public hearing is typically held during the comment period established by the proposed determination. The Regional Administrator issues a proposed determination when it has not been demonstrated during the consultation period provided for by the 404(c) initiation letter that no unacceptable adverse effect will occur or that corrective action will be taken to prevent unacceptable adverse impacts. At this stage of the 404(c) process, EPA has reason to believe that an unacceptable adverse effect could result from the project. The proposed determination provides an opportunity for EPA to obtain sufficient information either to determine that unacceptable adverse effects will not occur and withdraw the proposed determination, or to support a finding that the project is likely to result in unacceptable adverse effects and proceed with a recommended determination.
Q: What is a recommended determination?
A: Following the public hearing and the close of the comment period for the proposed determination, the Region will review all of the information collected and take the next step in the 404(c) process of either withdrawing the proposed determination or preparing a recommended determination to prohibit or restrict the site. A recommended determination is prepared when EPA has reason to believe that an unacceptable adverse effect would be likely to result from the project. The recommended determination, along with the administrative record, is forwarded to EPA Headquarters for review. EPA Headquarters makes the final determination affirming, modifying, or rescinding the recommended determination.
Q: What is a final determination?
A: The Final Determination represents the last step of EPA's Section 404(c) process. EPA Headquarters reviews the recommended determination and the Region's administrative record, and offers the Assistant Secretary of the Army (Civil Works) and project sponsor a final opportunity to demonstrate that no unacceptable adverse effect will occur or that corrective action will be taken to prevent unacceptable adverse impacts. EPA's Administrator (delegated to the Assistant Administrator for Water) then makes a final determination affirming, modifying, or rescinding the recommended determination. If the Assistant Administrator for Water concludes, based on its review, that the discharge of dredged or fill material in connection with the project will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas, the final determination can prohibit, restrict, or deny the specification of the subject waters of the United States (including wetlands) as a disposal site for the discharge of dredged or fill material.
Q: What is the outcome of a 404(c) action?
A: The Clean Water Act gives EPA the ultimate responsibility to ensure that discharges of dredged or fill material in waters of the United States do not have unacceptable adverse environmental effects. Consideration of requirements in the CWA Section 404(b)(1) Guidelines and other relevant factors by the U.S. Army Corps of Engineers (Corps) normally assures that regulated activities will not lead to unacceptable harm to aquatic resources. If, however, EPA has reason to believe that unacceptable harm will occur to these resources, EPA may take action, including the initiation of a 404(c). EPA's statutory role is not to duplicate the Corps' exercise of its own responsibilities. EPA is, however, required to exercise independent judgment, based on the record, when deciding under CWA Section 404(c) whether adverse effects to waters of the United States will occur and whether or not these effects are acceptable. The ultimate outcome is a decision that protects the functions and values of the Nation's waters. Should it be determined by the EPA Administrator that a proposed project be vetoed, the project can not proceed in its current design.