The U.S. Army Corps of Engineers is soliciting comments for the reissuance of existing nationwide permits (NWPs) under the Clean Water Act, including a permit critical to the coal industry.
The Corps is also proposing to issue two new NWPs and one new general condition, said a notice to be published by the Corps in the June 1 Federal Register. The Corps is requesting comment on all aspects of these proposed nationwide permits. The reissuance process starts with this publication of the proposed NWPs in the Federal Register for a 60-day comment period.
The purpose of this Federal Register document is to solicit comments on the proposed new and modified NWPs, as well as the NWP general conditions and definitions. Shortly after the publication of this Federal Register document, each Corps district will publish a public notice to solicit comments on its proposed regional conditions for these NWPs.
The Corps issues NWPs to authorize activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that will result in no more than minimal individual and cumulative adverse environmental effects. There are currently 50 NWPs. These NWPs were published in the Feb. 21, 2012, issue of the Federal Register and expire on March 18, 2017. These reissued NWPs are due to go into effect immediately after the current NWPs expire.
Section 404(e) of the Clean Water Act provides the statutory authority for the Secretary of the Army, after notice and opportunity for public hearing, to issue general permits on a nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States.
The NWP most critical to the coal industry, and which has been the subject of controversy for years as the Obama Administration tightened the environmental standards under which they are issued, is NWP 21, covering “Surface Coal Mining Activities.” Basically that means rock and dirt from mine and prep plant sites that is placed in valley fills within 100 feet of streams.
Said the June 21 notice about NWP 21: “We are proposing to remove paragraph (a) that was in the 2012 NWP 21. The proposed NWP consists of paragraph (b) of the 2012 NWP 21, with a 1/2-acre limit for losses of non-tidal waters of the United States, a 300 linear foot limit for losses of stream bed, and a prohibition against discharges of dredged or fill material into waters of the United States for the construction of valley fills.
“As discussed in the February 21, 2012, Federal Register notice, paragraph (a) of the 2012 NWP 21 was intended to “provide an equitable transition to the new limits in NWP 21 and reduce burdens on the regulated public.” In that final rule, we also stated that if surface coal mining activities previously authorized by NWP 21 could not be completed before the 2012 NWP 21 expires, or within one year of that expiration date if the activity qualifies for the grandfathering provision at 33 CFR 330.6(b), then the project proponent would have to obtain an individual permit or, if available, a regional general permit authorization to complete the surface coal mining activities in waters of the United States.”