US Army Corps reissues permits for entire state of Virginia, but excludes mining | Vandeventer Black LLP

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The Norfolk District of the U.S. Army Corp of Engineers (“Corps”), in coordination with the Virginia Department of Environmental Quality (“VDEQ”), is offering two Programmatic General Permits from the State of Virginia (“SPGP”) authorizing the release of dredged or fill materials into non-tidal waters of the United States, including wetlands, from certain commercial, industrial, residential, and linear transportation activities to replace the existing SPGP. The most significant change from the previous SPGP is that the Corps specifically excludes new and existing mining activities from SPGP eligibility.

For your information, the Corps is responsible for regulating discharges of dredged or fill material into United States waters (“WOTUS”) under Section 404 of the Clean Water Act. The Corps carries out this duty by issuing permits authorizing activities that will affect WOTUS. The impact of a proposed project will determine the type of permit required for that project. Projects with more than minimal impact must apply for individual project permits, while general permits are available for projects with minimal adverse effects. There are three types of general permits – national, regional and programmatic permits, including state programmatic permits. This latter category is designed to eliminate duplication between the Corps and state regulatory programs that provide similar protection. The SPGPs also make it possible to rationalize the requests and submissions of pre-construction notices.

The Virginia SPGP was first issued in 2002 and has been renewed every five years since. The current SPGP was released in 2017 and covers “residential, commercial and institutional developments” and “linear transportation projects”. These two categories of activities cover a wide range of construction, maintenance and recreational activities, as well as the construction and expansion of roads, highways, railways, trails and trails. airport.

For 2022, the Corps elected to split the 2017 SPGP into two permits – 22-SPGP-RCIR (Residential, Commercial, Institutional and Recreational Developments) and 22-SPGP-LT (Linear Transportation). The 2022-SPGPs generally replicate most of the 2017 conditions with minor changes. One of the most significant changes, however, is that 22-SPGP-RCIR now explicitly excludes mining activities. The proposed permits and supporting documents do not explain why mining was excluded from SPGP eligibility. In follow-up investigations and public statements, the Corps and the VDEQ have stated that mining activities were never meant to be eligible for SPGP and that some inconsistencies developed in verifying that mining activities complied with the requirements of the SPGP. permit. The Corps and VDEQ said national permits are more appropriate for mining activities.

This change comes as a surprise to many mine operators, especially since the mining industry has used SPGP since its first release. Additionally, the change does not distinguish between different mining sub-categories, such as mineral and non-mineral aggregate mining, which have different environmental impacts. As a result, mining operators in Virginia don’t know if regulatory inconsistencies are uniform across the mining industry, what those inconsistencies are, and how to resolve them.

In addition to having a direct impact on the mining industry, the exclusion of mining activities can have an impact on industries that depend on mining products. This is especially true for the extraction of non-mineral aggregates. Aggregate is the most basic material used in construction and serves as the foundation for roads, bridges and buildings. Aggregates make up 90% of asphalt pavements and 80% of some concrete mixes. On average, more than 38,000 tons of aggregate is needed to build one mile of Interstate Highway lane. Aggregates are also important for other construction-related uses, such as erosion and sediment control. Accordingly, delays in the issuance of permits for aggregate extraction could cause delays and increase the costs of construction projects, particularly major infrastructure improvements currently underway or planned in Virginia. These projects include ongoing and much-needed improvements to interstate highways across the Commonwealth, as well as expansions to the Hampton Roads and Chesapeake Bay Bridge tunnels.

Miners need to assess the impact this change will have on their new and existing projects. Certain new mining activities may still be grandfathered under 2017-SPGP if a previously approved project began construction before May 31, 2022 and can complete construction within 12 months. If the activity does not benefit from acquired rights under the 2017-SPGP, the activity will have to obtain another type of permit. Non-grandfathered activities may still be eligible for coverage under National Permit 44 (“NWP 44”), but there are significant differences between NWP 44 and 22-SPGP-RCIR, including the range of authorized impacts. Although environmental impacts may be reduced to account for NWP 44, projects seeking to use NWP44 will face an additional step of obtaining Virginia CWA 401 certification. Non-grandfathered activities not eligible for NWP 44 will require individual permits, which can be very expensive and take a year or more to obtain.

Overall, mining operations may need to anticipate increased costs and time associated with obtaining permits. In addition, industries that rely on aggregate mined in Virginia will need to assess whether this change will affect aggregate supply and cost.

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