U.S. Army Corps Reissues Virginia Statewide Permits, but Excludes Mining Activities

The Norfolk District of the U.S. Army Corp of Engineers ("Corps"), in coordination with the Virginia Department of Environmental Quality ("VDEQ"), is proposing two Virginia State Programmatic General Permits ("SPGP") authorizing discharge of dredge or fill material in nontidal 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 is specifically excluding new and existing mining activities from eligibility under the SPGP.

By way of background, the Corps is responsible for regulating of discharges of dredged or fill material into waters of the United States ("WOTUS") under section 404 of the Clean Water Act.  The Corps executes this duty through the issuance of permits authorizing activities that will affect WOTUS.  A proposed project's impact will determine the type of permit required for that project.  Projects with more than minimal impact must apply for individual project permits, whereas general permits are available for projects with minimal adverse effects.  There are three types of general permits — nationwide, regional, and programmatic permits, including state programmatic permits.  This last category is designed to eliminate duplication between the Corps and state regulatory programs that provide similar protection.  SPGPs also allow for more streamlined applications and preconstruction notice submissions.

The Virginia SPGP was first issued in 2002 and has been renewed every five years since.  The current SPGP was issued in 2017 and covers "residential, commercial, and institutional developments," and "linear transportation projects."  These two categories of activities cover a broad array of construction, maintenance, and recreational activities, along with construction and expansion of roads, highways, railways, trails, and airport runways.

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 carry over most conditions from 2017 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 documentation do not explain why mining was excluded from SPGP eligibility.  In follow-up inquiries and public statements, both the Corps and the VDEQ stated that mining activities were never intended to be eligible for the SPGP, and that certain inconsistencies have developed in verifying compliance of mining activities with permit requirements.  The Corps and VDEQ stated that nationwide permits are more appropriate for mining activities.

This change comes as a surprise to many mine operators, especially considering the mining industry has been using the SPGP since its first issuance.  Moreover, the change does not distinguish between different subcategories of mining, such as mineral versus nonmineral aggregate mining, which have different environmental impacts.  Thus, mine operators in Virginia are unclear whether regulatory inconsistencies are uniform across the mining industry, what the inconsistencies are, and how to address them.

In addition to impacting the mining industry directly, the exclusion of mining activities may impact industries that rely on mining products. This is especially true for nonmineral aggregate mining.  Aggregate is the most basic material used in construction and serves as the foundation for roads, bridges, and buildings.  Aggregate makes up 90% of asphalt pavement and 80% of some concrete mixes.  On average, over 38,000 tons of aggregate is necessary to construct one lane mile of interstate highway.  Aggregate is also important for other construction-related uses, such as for erosion and sediment controls.  Therefore, delays in the issuance of aggregate mining permits could inject delays and increase costs for construction projects, especially the extensive 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 the expansions at the Hampton Roads and Chesapeake Bay Bridge Tunnels.

Mine operators need to assess the impact this change will have on their new and existing projects.  Some new mining activities may still be grandfathered under the 2017-SPGP if a previously approved project commenced construction before May 31, 2022, and can complete construction within 12 months.  If the activity is not grandfathered under the 2017-SPGP, the activity will need to obtain a different kind of permit.  Activities not grandfathered may still be eligible for coverage under Nationwide Permit 44 ("NWP 44"), but there are meaningful differences between NWP 44 and 22-SPGP-RCIR, including the scope of authorized impacts.  Even if environmental impacts can be reduced to accommodate NWP 44, projects seeking to use NWP44 will face an additional permitting step of obtaining a CWA 401 certification from Virginia.  Activities not grandfathered and not eligible for NWP 44 will need individual permits, which can be very expensive and take a year or more to obtain.

Overall, mining activities may need to plan for increased costs and time associated with permitting.  In addition, industries that rely on aggregate mined in Virginia will need to assess whether this change will affect the supply and cost of aggregate.