2010-14778. Suspension of Nationwide Permit 21

AGENCY:

United States Army Corps of Engineers, Department of Defense.

ACTION:

Notice.

SUMMARY:

The U.S. Army Corps of Engineers (Corps) is immediately suspending Nationwide Permit (NWP) 21, which authorizes discharges of dredged or fill material into waters of the United States for surface coal mining activities, in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. This suspension is an interim measure to protect the aquatic environment while we evaluate modification of NWP 21 or until NWP 21 expires in 2012. While the suspension is in effect, individuals who seek authorization for discharges of dredged or fill material into waters of the United States for surface coal mining projects in the affected region will have to obtain Department of the Army authorization under the Clean Water Act (CWA), through the individual permit process. Individual permits will result in increased public involvement in the permit evaluation process, including an opportunity for public comment on individual projects. NWP 21 activities that have been verified by District Engineers prior to the effective date of this suspension in the affected region continue to be authorized by that NWP until it expires on March 18, 2012, unless the District Engineer takes action to modify, suspend or revoke a particular NWP authorization on a case-by-case basis in accordance with the procedures at 33 CFR 330.5(d). District engineers may not modify previously issued NWP 21 verifications in this region to authorize additional discharges of dredged or fill material into waters of the United States; such discharges must be applied for and evaluated under the individual permit process. This suspension of NWP 21 does not apply to other regions of the United States. The suspension will remain in effect until the Corps takes further action on NWP 21 or until NWP 21 expires on March 18, 2012. The Corps will publish its decision concerning the proposed NWP 21 modification in a future Federal Register notice.

DATES:

The effective date of the suspension of NWP 21 in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia is June 18, 2010.

ADDRESSES:

U.S. Army Corps of Engineers, Attn: CECW-CO (Attn: Ms. Desiree Hann), 441 G Street, NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT:

Ms. Desiree Hann, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4560.

SUPPLEMENTARY INFORMATION:

Background

On June 11, 2009, the Army, the U.S. Department of the Interior, and the U.S. Environmental Protection Agency signed a Memorandum of Understanding (MOU) that addresses actions to strengthen the environmental review of Appalachian surface coal mining. A copy of this MOU is available at: http://www.usace.army.mil/​CECW/​Pages/​moumoas.aspx. The MOU includes an Interagency Action Plan (IAP) that was developed to reduce the adverse environmental impacts of surface coal mining activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia, while ensuring that future mining remains consistent with the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act. One of the action items in the MOU was for the Corps to issue a public notice proposing to modify NWP 21, which authorizes discharges of dredged or fill material into waters of the United States for surface coal mining activities, to preclude its use to authorize the discharge of fill material into streams and other waters of the United States for surface coal mining activities in the Appalachian region of those six states, and to seek public comment on the proposed action.

In accordance with the Corps regulations for implementing the Nationwide Permit Program, an interested party may request that the Corps consider changes to existing NWPs, including modification or revocation of any of those NWPs, at any time (see 33 CFR 330.5(b)(1)). Based upon the concerns expressed in the June 11, 2009 MOU and its IAP about the potential for more than minimal individual and cumulative environmental effects of surface coal mining activities in certain states in Appalachia, the Corps agreed to seek public comment on a proposal to modify and suspend NWP 21 in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. That proposal was published in the July 15, 2009, issue of the Federal Register (75 FR 34311). All 38 Corps districts also published local public notices to inform citizens of the proposal and their opportunity to provide comments or request public hearings.

Impacts to waters of the United States that typically occur in association with surface coal mining activities include valley fill construction activities (e.g., the placement of rock and soil into headwater streams and their valleys), sediment pond construction, road construction, and slurry impoundment construction. Activities authorized by NWP 21 have impacted thousands of linear feet of ephemeral, intermittent, and perennial streams at numerous mine sites across the region. Compensatory mitigation has been required to ensure NWP 21 activities result in only minimal individual and cumulative adverse environmental effects. This mitigation must be successfully implemented to adequately offset the unavoidable impacts to waters authorized by NWP 21. Since 2002, the Corps has collected information with respect to the technical challenges associated with mitigation required for surface coal mine permits issued in Appalachia. Based on this information, and based on the 2008 mitigation rule, which emphasizes the importance of selecting mitigation sites based on their likelihood to be ecologically successful, we better understand how site selection and project design criteria could be improved to provide ecologically successful compensation to offset unavoidable losses of jurisdictional waters associated with surface coal mining projects.

The July 15, 2009, proposal involved two actions concerning NWP 21. First, the Corps proposed to modify NWP 21 to prohibit its use to authorize discharges of dredged or fill material into waters of the United States for surface coal mining activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia until it expires on March 18, 2012. Second, the Corps proposed to suspend NWP 21, and to require individual permit reviews in the Appalachian region of these states, until it completes the longer term process of deciding whether to modify NWP 21. The suspension of NWP 21 in these states would provide enhanced protection of aquatic resources while the Corps evaluates the proposal to modify NWP 21 by requiring surface coal mining projects in the affected region to obtain individual permits under the CWA, which would include increased public involvement in the permit review process, and an opportunity for public comment on individual projects.

The Corps regulations governing the issuance, modification, suspension, or revocation of NWPs are found at 33 CFR 330.5. As described in those regulations, suspension is a measure for halting the use of an NWP in the short-term in response to identified concerns about impacts to waters of the United States or other public interest review factors, while modification of an NWP is the long-term solution for addressing those concerns. The suspension will provide additional protection to the aquatic environment until the Corps makes its decision on the future of NWP 21.

In accordance with the suspension and modification procedures provided in the NWP regulations, the Corps invited public comment, as well as an opportunity to request public hearings. The initial comment period was extended from August 14, 2009 to September 14, 2009 (see 74 FR 40815). In response to requests received from a number of interested parties, the Corps held public hearings in each of the six states proposed to be affected by the suspension and modification of NWP 21. The public hearings were announced in the September 10, 2009, issue of the Federal Register (74 FR 46582) and the comment period was extended again to October 26, 2009, to allow written comments to be submitted to supplement the hearing records.

In response to the July 15, 2009, Federal Register notice, the Corps received approximately 23,000 written comments, of which approximately 950 were non-form letters expressing support for the suspension of NWP 21 and approximately 750 were non-form letters expressing opposition to the suspension of NWP 21. Comments may be viewed at http://www.regulations.gov under docket number COE-2009-0032. Duplicate comments are not posted in the regulations.gov docket.

The public hearings were held in the following cities on October 13-15, 2009: Charleston, West Virginia; Cambridge, Ohio; Pikeville, Kentucky; Knoxville, Tennessee; Pittsburgh, Pennsylvania; and Big Stone Gap, Virginia. Approximately 400 people provided oral testimony at these public hearings, with approximately two-thirds of the testimony in opposition to the proposed action of suspension and one-third in support of the proposed suspension.

In response to the Federal Register notice and oral testimony collected at the public hearings, approximately 16,500 commenters expressed support for the proposed suspension and 6,500 objected to the proposed suspension. Most of the commenters supporting the proposed suspension stated that NWP 21 activities have resulted in more than minimal individual and cumulative adverse effects on the aquatic environment, and commented on other public interest review factors. Commenters opposing the proposed suspension said that the current rules governing implementation of NWP 21, including the pre-construction notification (PCN) requirement and stringent review process, provide the Corps with the authority to exercise discretionary authority and require an individual permit if the impacts on the aquatic environment will be more than minimal on an individual or cumulative basis, or if warranted by other public interest review factors. A more detailed summary of the comments is provided in the decision document for the suspension of NWP 21, which is available at the Corps Headquarters “National Notices and Program Initiatives” page at: http://www.usace.army.mil/​CECW/​Pages/​nnpi.aspx and the regulations.gov Web site under docket number COE-2009-0032.

The same commenters also provided comments on the proposed modification of NWP 21, but those comments will be summarized and addressed in a separate document at a later time.

Suspension of NWP 21

To make a decision on the proposed suspension, the Corps considered comments, established decision criteria, and evaluated alternatives. This evaluation is provided in the decision memorandum referenced above. The Corps has concerns that continued use of this permit in the Appalachian region of these six states may result in more than minimal individual and cumulative adverse effects to aquatic resources. Under Section 404(e) of the CWA, only those activities that result in no more than minimal individual and cumulative adverse effects to the aquatic environment may be authorized under a NWP. Activities resulting in more than minimal individual and cumulative impacts to the aquatic environment cannot be authorized by NWPs or other general permits. We have determined that suspension of this permit in the Appalachian region of these six states is necessary to ensure that the Corps evaluates these complex activities, through the individual permit process, while it considers whether to modify NWP 21.

NWP 21 is suspended in the following counties of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia:

Kentucky: Adair, Bath, Bell, Boyd, Breathitt, Carter, Casey, Clark, Clay, Clinton, Cumberland, Edmonson, Elliott, Estill, Fleming, Floyd, Garrard, Green, Greenup, Harlan, Hart, Jackson, Johnson, Knott, Knox, Laurel, Lawrence, Lee, Leslie, Letcher, Lewis, Lincoln, McCreary, Madison, Magoffin, Martin, Menifee, Metcalfe, Monroe, Montgomery, Morgan, Nicholas, Owsley, Perry, Pike, Powell, Pulaski, Robertson, Rockcastle, Rowan, Russell, Wayne, Whitley, and Wolfe.

Ohio: Adams, Ashtabula, Athens, Belmont, Brown, Carroll, Clermont, Columbiana, Coshocton, Gallia, Guernsey, Harrison, Highland, Hocking, Holmes, Jackson, Jefferson, Lawrence, Mahoning, Meigs, Monroe, Morgan, Muskingum, Noble, Perry, Pike, Ross, Scioto, Trumbull, Tuscarawas, Vinton, and Washington.

Pennsylvania: Allegheny, Armstrong, Beaver, Bedford, Blair, Bradford, Butler, Cambria, Cameron, Carbon, Centre, Clarion, Clearfield, Clinton, Columbia, Crawford, Elk, Erie, Fayette, Forest, Fulton, Greene, Huntingdon, Indiana, Jefferson, Juniata, Lackawanna, Lawrence, Luzerne, Lycoming, McKean, Mercer, Mifflin, Monroe, Montour, Northumberland, Perry, Pike, Potter, Schuylkill, Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union, Venango, Warren, Washington, Wayne, Westmoreland, and Wyoming.

Tennessee: Anderson, Bledsoe, Blount, Bradley, Campbell, Cannon, Carter, Claiborne, Clay, Cocke, Coffee, Cumberland, De Kalb, Fentress, Franklin, Grainger, Greene, Grundy, Hamblen, Hamilton, Hancock, Hawkins, Jackson, Jefferson, Johnson, Knox, Lawrence, Lewis, Loudon, McMinn, Macon, Marion, Meigs, Monroe, Morgan, Overton, Pickett, Polk, Putnam, Rhea, Roane, Scott, Sequatchie, Sevier, Smith, Sullivan, Unicoi, Union, Van Buren, Warren, Washington, and White.

Virginia: Alleghany, Bath, Bland, Botetourt, Buchanan, Carroll, Craig, Dickenson, Floyd, Giles, Grayson, Henry, Highland, Lee, Montgomery, Patrick, Pulaski, Rockbridge, Russell, Scott, Smyth, Tazewell, Washington, Wise/Norton, and Wythe.

West Virginia: All counties.

The above list of counties is based on the Appalachian Regional Commission's list of counties in Appalachia.

This suspension of NWP 21 goes into effect on June 18, 2010. The suspension temporarily prohibits the use of NWP 21 to authorize discharges of dredged or fill material into waters of the United States for surface coal mining activities in these Appalachian counties, until the Corps makes a final determination on the proposed modification of NWP 21 or until NWP 21 expires in March 2012. In light of the suspension, project proponents for surface coal mining activities involving discharges of dredged or fill material into waters of the United States will have to obtain Department of the Army authorization under the Clean Water Act, through the individual permit process.

Using the individual permit process for those activities will provide more information for the Corps to consider in making decisions on these permit applications because of increased public involvement, such as the opportunity to comment on public notices for individual surface coal mining activities in Appalachia. This additional information could help improve not only the Corps analysis of potential individual and cumulative adverse effects of the proposed activity on the aquatic environment, but also on the potential adverse effects on other public interest review factors listed at 33 CFR 320.4(a)(1), such as conservation, aesthetics, economics, land use, recreation, fish and wildlife values, energy needs, and general considerations of property ownership, to the extent that those public interest factors are relevant to waters of the United States subject to CWA jurisdiction and within the Corps Federal control and responsibility.

Concurrent with this Federal Register notice, all Corps districts will issue local public notices announcing the suspension of NWP 21 as of the effective date identified above.

Grandfathering of Existing NWP 21 Authorizations

Today's action prohibits District Engineers from issuing NWP 21 verifications in response to PCNs for surface coal mining activities in the Appalachian counties listed above during the period of suspension. In other words, District Engineers cannot continue to process NWP 21 PCNs that are pending as of June 18, 2010 or accept new or revised NWP 21 PCNs for surface coal mining activities in the Appalachian region of those six states unless the suspension is lifted and NWP 21 is reinstated in this region.

Proponents of proposed surface coal mining activities in the Appalachian region of these six states will have to submit applications for individual permits instead of NWP 21 PCNs.

NWP 21 activities that have been verified by District Engineers prior to June 18, 2010 in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia, continue to be authorized by that NWP until it expires on March 18, 2012, unless the District Engineer takes action to modify, suspend or revoke a particular NWP authorization on a case-by-case basis in accordance with the procedures at 33 CFR § 330.5(d). District engineers may not modify previously issued NWP 21 verifications to authorize additional discharges of dredged or fill material into waters of the United States in the affected Appalachian counties; such discharges must be applied for and evaluated under the individual permit process.

Environmental Documentation

The decision document for the suspension of NWP 21 is available at the Corps Headquarters “National Notices and Program Initiatives” page at: http://www.usace.army.mil/​CECW/​Pages/​nnpi.aspx and the regulations.gov Web site under docket number COE-2009-0032. It is also available by contacting Headquarters, U.S. Army Corps of Engineers, Operations and Regulatory Community of Practice, 441 G Street, NW, Washington, DC 20314-1000.

Authority

We are suspending NWP 21 under the authority of Section 404(e) of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).

Dated: June 8, 2010.

Approved by:

R.L. Van Antwerp,

Lieutenant General, U.S. Army, Commanding.