Environmental Mitigation In Mining: Unique Challenges And Opportunities

Big mining projects offer big opportunities. Rather than being viewed as a threat to the environment, mining projects (which must occur where the ore is found) offer many options for environmental enhancements. Existing mitigation approaches can miss that chance, even though there is sufficient discretion and flexibility in the applicable law to get good results for the ecosystem, both in terms of watershed and habitat.

A large surface or open pit mine shares little in common with the development of an office park, roadway, or golf course. But wetland and stream impacts from surface mining are subject to the same federal permitting and approval processes as typical development projects (in addition to other unique requirements, such as regulation under the Surface Mining Control and Reclamation Act for coal mining operations). Various federal and state permitting and approval programs involve environmental review and mitigation requirements in some form. In particular, permit applicants are obligated under federal programs to mitigate impacts to wetlands and streams under the Clean Water Act (CWA) and federally listed species and habitat under the Endangered Species Act (ESA). Mitigation for wetlands and streams impacts includes a stepwise sequence: avoid, minimize, and then compensate for unavoidable impacts. As well, a similar policy that emphasizes avoidance is used for the protection of endangered and threatened species. However, this mitigation sequence does not fit particularly well with mining because there is tension between the regulatory preference for avoidance and minimization and the fact that mining must occur where the minerals are found.

Traditional Mitigation Sequence

Mining operations frequently involve the discharge of dredged or fill materials into wetlands or streams within the CWA's jurisdiction and therefore require a permit from the Army Corps of Engineers (Corps) under CWA § 404. 33 U.S.C. § 1344. For surface mining permit applicants, the task is to formulate a plan to maximize the recovery of minable resources while minimizing adverse impacts to environmental resources to a level that is acceptable to regulators and, ideally, to local and environmental groups. Striking the correct balance between these competing interests is possible, but it is complicated by a regulatory program that is difficult to apply in the mining context.

Recent developments in CWA mitigation requirements and preferences push in somewhat contradictory directions. First, increased emphasis on mitigation in the seventies and early eighties was driven, in part, by the recognition that the CWA § 404 program was not effectively slowing the rate of loss of wetlands. The present policy approach to mitigating impacts to wetlands can be traced in large measure to President George H.W. Bush's decision in 1988 to adopt the "no net loss" policy recommended by the National Wetlands Policy Forum. To implement this policy, the Corps and EPA entered into a Memorandum of Agreement in 1990 (MOA), which set joint policy for applying the mitigation requirements of the Section 404(b)(1) Guidelines. MOA, Between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation under the Clean Water Act Section 404(b)(1) Guidelines (Feb. 6, 1990).

Most significantly, the MOA firmly established the now standard hierarchy for acceptable mitigation practices, or "mitigation sequence," in the wetlands program: avoid, minimize, and compensate—in that order. The "avoidance" element of the sequence was embodied in the preexisting Section 404(b) (1) Guidelines, 40 C.F.R. Part 230, which require an applicant to avoid any adverse impact to waters if there is a "practicable alternative" to doing so. There is a rebuttable presumption that practicable...