Biden seeks federal mining law overhaul
From redefining WOTUS to replacing the Mining Law of 1872, White House seeks reforms; streamlining permitting on table North of 60 Mining News – June 25, 2021
Last updated 7/29/2021 at 3:33pm
From reinstating the Roadless Rule in the Tongass Forest to replacing the General Mining Law of 1872, federal regulations being proposed by President Joe Biden threaten to rain on a parade of strong metals prices, growing demand for critical minerals, and robust investments into mineral exploration and mining across Alaska.
"We recommend Congress develop legislation to replace outdated mining laws including the General Mining Law (GML) of 1872 governing locatable minerals (including nickel) on federal lands, the Materials Disposal Act of 1947 to dispose of minerals found on federal lands, and the Mineral Land Leasing Act of 1920 among others," the Biden administration penned in a June 8 statement on battery supply chains. "These should be updated to have stronger environmental standards, up-to-date fiscal reforms, better enforcement, inspection and bonding requirements, and clear reclamation planning requirements."
While a complete overhaul of these regulations could have wide-reaching effects on how mining companies explore for and produce minerals on federal lands, the Environmental Protection Agency's plans to once again broaden the definition of "waters of the United States" could have much wider implications for domestic mining across the nation, and especially Alaska.
"For the Biden administration and the EPA to redefine waters is nothing more than a naked power grab for federal rule from Washington, D.C.," Alaska Gov. Mike Dunleavy commented on EPA's June 9 announcement of plans to redefine WOTUS.
The mining reform proposals come at a time when the U.S. is going to need much larger quantities of the copper, graphite, rare earths, and other raw materials that Alaska could feed into the reliable and secure electric vehicle and renewable energy supply chains being sought by the White House.
"With the global lithium battery market expected to grow by a factor of five to ten by 2030, it is imperative that the United States invests immediately in scaling up a secure, diversified supply chain for high-capacity batteries here at home," the White House penned in a June 8 statement on battery supply chains. "That means seizing a critical opportunity to increase domestic battery manufacturing while investing to scale the full lithium battery supply chain, including the sustainable sourcing and processing of the critical minerals used in battery production all the way through to end-of-life battery collection and recycling."
Redefining waters, again
The reason Dunleavy is concerned about a potentially new and expanded redefinition of WOTUS is that Alaska would be disproportionately affected.
"Nearly half the nation's water is within Alaska, with over three million lakes, 365,000 miles of rivers, and countless unnavigable glaciers, permafrost, and wetlands," the Alaska governor penned in a June 12 statement.
According to federal agency surveys, nearly 175 million acres, or more than 43% of the surface area of Alaska, are already considered wetlands.
With a broader definition of what is considered waters of the U.S., it is expected that much larger swaths of the state would fall under the federal Clean Water Act and the burdensome regulatory requirements that come with that. Mining, road construction, pipeline and utility installations, commercial, and even residential construction would be affected by an expanded WOTUS definition.
This has been a hot topic since the Obama administration set out to broaden the definition of U.S. waters in 2014.
Tributaries under a WOTUS rule finalized in 2015 would have included anything that remotely resembled a stream – a bed, bank, and ordinary high-water mark – even arroyos and other gullies where water only flows during infrequent heavy rainfall events. Nearby waters, including wetlands and other watery features within 1,500 feet of navigable waters and sometimes such features within 4,000 feet of high tide or high-water mark of a stream, also would have been covered under the rule.
Even if a small portion of one of these neighboring wet features falls within the guidelines, the entire body falls under the new WOTUS rule, regardless of its connection to downstream waters.
For Alaska – with by far America's largest coastline and wetlands inventory, along with plentiful rivers, streams, and rivulets – this redefining of U.S. waters would have resulted in vast swaths of state-regulated lands falling under the federal Clean Water Act and the regulatory agencies that administer it.
This 2015 definition, however, was never fully implemented due to federal courts blocking it until a lawsuit brought by nearly 90 parties, including 32 states, was resolved.
Almost immediately after taking office, Trump signed a presidential order to undo Obama's WOTUS rule.
"The EPA's so-called 'Waters of the United States' rule is one of the worst examples of federal regulation, and it has truly run amok," the former president said during the February 2017 signing of the order.
Trump's order resulted in the Navigable Waters Protection Rule, which included a more traditional definition of waters of the U.S. – seas, lakes, rivers, ponds, and wetlands. The 2020 rule expressly excluded features that only contain water in direct response to rainfall, groundwater, many ditches, and prior converted cropland.
Now, the Biden administration has instructed the EPA and Department of the Army to again broaden the definition of WOTUS "to better protect our nation's vital water resources."
"We are committed to establishing a durable definition of 'waters of the United States' based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation's waters, foster economic growth, and support thriving communities," said EPA Administrator Michael Regan.
Upon review of the Navigable Waters Protection Rule, the EPA and Army identified 333 projects that would have previously been subjected to federal Clean Water Act Section 404 permitting but were reverted to state permitting under the Trump rule.
As a result of these findings, EPA said the U.S. Department of Justice has filed a motion requesting the court to remand the Navigable Waters Protection Rule.
"Today's action reflects the agencies' intent to initiate a new rulemaking process that restores the protections in place prior to the 2015 WOTUS implementation, and anticipates developing a new rule that defines WOTUS and is informed by a robust engagement process as well as the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule," EPA penned in its June 9 announcement.
Dunleavy sees the administration's attempts to undo the Navigable Waters Protection Rule and reinstate WOTUS definitions similar to those established while Vice President Biden was in office as a move that would put vast swaths of Alaska off-limits.
"Make no mistake, the ability of Alaskans to harvest timber, develop oil and gas, mine the critical minerals needed for national security, and the ability to farm and hunt are in danger with this announcement, the Alaska governor wrote. "It would be less insulting to the State of Alaska if the Biden EPA came out transparently with its intent to turn our land into a national park under the management of rangers."
Roadless rule revisited
While not as far-reaching in its scope, the Biden administration's plans to "repeal or replace" a Trump-era decision that exempts the Tongass National Forest from the 2001 Roadless Rule has wide implications for mining and other development in Southeast Alaska.
Established by the Clinton administration in 2001, the roadless rule prohibited road building and logging on 58.5 million acres of national forest lands, including more than 9.2 million acres of the Tongass National Forest.
While primarily established to impede logging, the roadless nature of the rule also makes it difficult to carry out other activities.
Considering the 16.8-million-acre Tongass Forest extends for more than 500 miles and covers roughly 80% of the Southeast Alaska Panhandle, the 2001 ruling stifled economic opportunities in that part of the state.
"As Alaskans know well, the roadless rule hinders our ability to responsibly harvest timber, develop minerals, connect communities, or build energy projects to lower costs – including renewable energy projects like hydropower, all of which severely impedes the economy of Southeast," Sen. Dan Sullivan, R-Alaska said in 2019.
Due to Southeast Alaska's unique situation, the Bush administration exempted the Tongass from the Roadless Rule in 2003, only to have the conservation measure re-instated by U.S. District Judge John Sedwick in 2011.
Acting on a 2018 state of Alaska petition to establish a more permanent exemption, the Trump administration enacted the Alaska Roadless Rule in October of last year. While this lifted the roadless restrictions on large swaths of the forest, more than 7 million acres remain highly protected. This includes 5.8 million acres of Tongass Forest covered by 19 wilderness areas that are completely off-limits to development with the exemption of some subsistence uses of resources by Alaska Natives.
Stating that "the Trump administration's decision on the Alaska roadless rule was controversial and did not align with the overwhelming majority of public opinion across the country and among Alaskans," the U.S. Forest Service recently announced plans to once again reinstate 2001 Roadless Rule protections for the entire Tongass.
Much like WOTUS, Dunleavy sees this proposed move by the Biden administration as an affront to Alaska's economic wellbeing.
"I am yet again disappointed in the Biden Administration's latest suppression of Alaska's economic opportunity," the governor penned in a June 11 statement. "From tourism to timber, Alaska's great Tongass National Forest holds much opportunity for Alaskans but the federal government wishes to see Alaskans suffer at the lack of jobs and prosperity. North to the Future means North to Opportunity, and we will use every tool available to push back on the latest imposition."
Mining law revamp
The Biden administration's rule changes that could disproportionately affect mine permitting and development in Alaska comes at a time when the president is making a push to secure America's supply chains that will require massive inputs of the minerals and metals the 49th State have to offer, especially for the EV and green energy transition envisioned by the White House.
The administration addressed the battery metals and other critical minerals needed in a June report that followed a 100-day assessment of the vulnerabilities to America's supply chains.
In preparation for the "sustainable sourcing and processing of the critical minerals used in battery production all the way through to end-of-life battery collection and recycling," the White House is assembling a working group of federal agencies led by the U.S. Department of Interior and supported by the White House Office of Science and Technology Policy to identify sites where critical minerals can be responsibly produced and processed in the U.S.
"This working group will collaborate with the private sector, states, Tribal Nations, and stakeholders – including representatives of labor, impacted communities, and environmental justice leaders – to expand sustainable, responsible critical minerals production and processing in the United States," according to a statement outlining the administration's strategy to strengthen supply chains.
The White House, however, wants to ensure that any such critical mineral projects are developed at the highest standards for environmental protections.
To identify gaps in mining-related statutes and regulations that may need to be updated by Congress, the White House is assembling a second federal interagency team composed of staff from DOI, USDA, EPA, and others with expertise in mine permitting and environmental law.
Information collected by this group will be used for an expected push for U.S. lawmakers to establish a whole new mining regulatory framework with strong environmental standards throughout the entire mine life, from development to reclamation.
"We recommend Congress develop legislation to replace outdated mining laws including the General Mining Law (GML) of 1872 governing locatable minerals (including nickel) on federal lands, the Materials Disposal Act of 1947 to dispose of minerals found on federal lands, and the Mineral Land Leasing Act of 1920 among others," the Biden administration wrote. "These should be updated to have stronger environmental standards, up-to-date fiscal reforms, better enforcement, inspection and bonding requirements, and clear reclamation planning requirements."
The three laws cited by the White House, however, are not related to the environmental regulations governing mining in the U.S. Instead, they detail how federal lands are prospected and staked (Mining Law of 1872); how minerals on federal lands are sold or leased (Materials Disposal Act of 1947); and royalties on mineral products on federal lands (Mineral Land Leasing Act of 1920).
Much of the federal regulations relating to environmental standards and permitting process for mining projects in the U.S. are found within the Clean Water Act and National Environmental Policy Act.
The NEPA process is both renowned for its strong environmental protections and infamous for the nearly a decade it takes for a large domestic mine in the U.S. to gain permits under its process.
"Mine permitting in the U.S. takes on average seven to 10 years, and often longer," National Mining Association President and CEO Rich Nolan wrote in a February column for RealClearEnergy. "In Canada and Australia, nations with comparably robust environmental standards, permitting is achieved in just two to three years."
Earlier this year, the Biden administration indicated that it would look to these jurisdictions with more efficient mine permitting processes to feed much of the needed minerals and metals into American supply chains.
A March 18 Reuters article said, "Washington is increasingly viewing Canada as a kind of '51st State' for mineral supply purposes and plans to deepen financial and logistical partnerships with the country's mining sector over time, according to a U.S. government source."
Dunleavy questions the logic of this when the administration could further spur America's economy by focusing on the mineral wealth in the 49th State.
"Alaska has nearly all the minerals & rare earths needed to provide a domestic supply for electric vehicle manufacturers," the Alaska governor posted on Facebook following the Reuters article. "President Joe Biden, why would you send jobs & investments to Canada, when we can do this in the USA?"
The Biden administration has signaled that despite efforts to redefine WOTUS and prompt Congress to undertake a massive overhaul of U.S. mining law, it would like to see the process for permitting domestic mines feeding minerals and metals into U.S. supply chains streamlined.
As such, the White House is directing the federal mining regulation working group to fully explore "opportunities to reduce time, cost, and risk of permitting without compromising strong environmental and consultation benchmarks."
This echoes legislation recently introduced by Sen. Lisa Murkowski, R-Alaska – S.1352: A bill to improve the quality and timeliness of federal permitting and review processes with respect to critical mineral production on federal land, and for other purposes.
The legislation introduced by Murkowski in April and cosponsored by ten senators aims to improve the efficiency and effectiveness of the U.S. permitting process by requiring federal agencies to:
• Establish clear timelines for decisions regarding applications, operating plans, leases, licenses, permits, and other use authorizations for critical mineral-related activities on federal land.
• Create clear, quantifiable permitting performance goals and to track progress toward those goals.
• Engage in early collaboration with agencies, stakeholders, project sponsors, and consult with state, local, and tribal governments to resolve concerns.
• Provide clear and logical ways to make the process cost-effective and timely.
"America's reliance on foreign countries for the production and recycling of our critical minerals is a vulnerability to our national security, a disadvantage to our economy, and a hindrance to our global competitiveness," Murkowski said. "By improving the permitting processes we have in place, we are creating greater opportunity for America to rebuild a robust domestic critical minerals supply chain."
The White House seems to agree that the federal mine permitting proposal introduced by Murkowski is in the best interest of strengthening America's supply chains. The administration, however, will likely also want to see federal jurisdiction of domestic mine permitting expanded.