[Federal Register Volume 75, Number 117 (Friday, June 18, 2010)]
[Notices]
[Pages 34711-34714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14778]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

ZRIN 0710-ZA04


Suspension of Nationwide Permit 21

AGENCY: United States Army Corps of Engineers, Department of Defense.

ACTION: Notice.

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[[Page 34712]]

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

[[Page 34713]]

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

[[Page 34714]]

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 Sec.  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.
[FR Doc. 2010-14778 Filed 6-17-10; 8:45 am]
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