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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Reissuance of Nationwide Permit Allowing Filling Of Headwater Streams And Wetlands By Coal Mining Operations Is Opposed  Posted: November 27, 2006
November 27, 2006

U.S. Army Corps of Engineers
Attn: CECW-OR/MVD (David B. Olson)
441 G Street NW
Washington, D.C. 20314-1000
By email: david.b.olson@usace.army.mil

Re: Proposal to Reissue And Modify Nationwide Permits
71 Fed. Reg. 56258
COE-2006-0005 ZRIN 0710-ZA02

Dear Mr. Olson:

These comments are submitted on behalf of the Kentucky Resources Council, Inc., a non-profit environmental advocacy organization providing legal and technical assistance without charge to low-income individuals, community groups, and local governments on environmental issues, and whose membership shares a common interest in prudent use and conservation of the natural resources of the Commonwealth of Kentucky. The Council provides legal and technical assistance nationally to coalfield citizens on coal mining-related issues, and Council members include numerous individuals who live, work, and recreate in areas where water resources are adversely affected by placement of dredged and fill material associated with surface and underground coal mining operations.

Additionally, KRC members include numerous individuals across the Commonwealth whose homes and communities have been adversely affected by filling of jurisdictional wetlands and waterbodies, including effects attributable to the impacts of filling of water resources that was authorized under one or more of the nationwide permits.

The Council has reviewed the proposed reissuance of the existing nationwide permits, and the proposal to create several new nationwide permits, and harbors concerns about several of the proposed reissued nationwide permits and two new nationwide permits. The Council endorses and incorporates herein by reference as if fully set forth below, the comments submitted by the Clean Water Network concerning the proposed nationwide permit reissuance proposal, and offers these additional comments.

SUMMARY

In summary, the Council’s concerns regarding the proposed nationwide permit reissuance are these:

1. Nationwide 21 should be eliminated, since it fails to require a demonstration of impracticability of alternatives prior to approval of a discharge of dredged or fill material. The Corps mistakenly assumes the state or federal regulatory agency under the 1977 Surface Mining Control and Reclamation Act engages in a process comparable to Section 404 of the CWA and the 404(b)(1) guidelines of assuring avoidance and minimization of impacts on special aquatic sites and other waters of the United States, when in fact no other agency engages in such a review.

2. Nationwide Permit 44 for mining activities invites significant localized damage to stream quality and mussel populations, and should not be included in the final proposal.

3. The proposed new Nationwide Permit E subcategory for coal remining activities and F for underground coal mining activities should be eliminated.

4. The nationwide permit program should include a compliance evaluation component.

5. Nationwide Permit 16 needs revision.

6. General Condition 24 needs revision to prevent stacking of nationwide permits for coal mining operations.

7. The proposal to create each new nationwide permit should be preceded by development of environmental documentation under NEPA.

DISCUSSION

Section 404 authorizes the Corps of Engineers to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” The Secretary of the Army is authorized and obligated to deny or restrict the use of areas for disposal if it is determined that the discharge of such materials into such area “will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas[,] wildlife, or recreational areas.”

Section 404(e) of the Clean Water Act limits state, regional or nationwide permits to those categories of activities which are “similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” Any general permit (which by statute is the category that includes nationwide, regional or state permits) must be based on the Section 404(b)(1) guidelines and must set forth the requirements and standards that shall apply to any activity authorized under the general permit.

Against this backdrop, KRC has grave concerns with the proposal to reissue NWP 21 and to authorize new nationwide permits for coal remining and for underground coal mining operations.

1. Nationwide 21 should be eliminated, since it fails to require a demonstration of impracticability of alternatives prior to approval of a discharge of dredged or fill material. The Corps wrongfully assumes the state or federal regulatory agency under the 1977 Surface Mining Control and Reclamation Act engages in a process comparable to Section 404 of the CWA and the 404(b)(1) guidelines of assuring avoidance and minimization of impacts on special aquatic sites and other waters of the United States, when in fact no other agency engages in such a review.

The proposal to reissue NWP 21 would authorize the discharge of dredged or fill material into waters of the United States associated with surface coal mining operations provided that the activities are “already authorized by the Department of Interior (DOI), Office of Surface Mining (OSM), or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 or are currently being processed as part of an integrated permit processing procedure.”

NWP 21 would require a pre-construction notification and would also require receipt of written authorization prior to commencing the activity.

The conceptual and practical problems with NWP 21 are legion.

Initially, the proposed NWP 21 fails to satisfy the requirements of Section 404(e), due to the mistaken and baseless assumption by the Corps that the regulatory authority under SMCRA engages in an analysis that is functionally equivalent to the 404(b)(1) guidelines mandated hierarchy of avoidance, minimization and mitigation.

No other agency, not the Secretary of Interior through the federal Office of Surface Mining, nor the state “regulatory authority” under 30 U.S.C. 1253(a) and 30 U.S.C. 1291, engages in an analysis of the available alternatives to placement of fill material in waters of the United State. In the enactment of the 1977 law, Congress specifically provided that nothing in that law was to be construed as superseding, amending, modifying or repealing a series of other laws, including the Federal Water Pollution Control Act, state laws enacted pursuant thereto, or other Federal laws relating to preservation of water quality.

While it is accurate that under SMCRA, mine permittees are obligated to “minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas” under Section 515(b)(10) of the Act (30 U.S.C. 1265(b)(10)), that obligation is further defined as avoiding acid or toxic mine drainage, conducting operations so as to prevent additional contributions of suspended solids using BCTA, constructing siltation structures, protecting alluvial valley floor functions, avoiding channel deepening and restoring recharge capacity of mined areas; nothing in that section or any other section of SMCRA indicates that the evaluation conducted of a mine permit by the regulatory authority under SMCRA is intended to replace or displace the 404(b)(1) analysis required of the Corps of Engineers. In the Corps’ effort to “reduce duplication between the SMCRA and Section 404 permitting processes, the Corps has sidestepped entirely the avoidance requirement of Section 404(b)(1) guidelines. For example:

* With respect to coal mine waste impoundments, SMCRA establishes technical requirements for the design, location, construction, operation, maintenance, enlargement, modification and removal or abandonment of coal waste impoundments, but does not require the applicant to demonstrate the absence of practicable alternatives as is required by the Section 404(b)(1) guidelines for individual 404 permits.

Alternatives that do not involve the impounding of slurried coal processing wastes in embankment structures do exist, including methods to reduce the generation of slurry, and other disposal approaches and locations, including use of incised basins located outside of the floodplain and outside of any jurisdictional waters, dewatered fine refuse cells, co-disposal, uncontrolled and controlled (pneumatic or hydraulic) placement of coal processing wastes in underground works. See: Coal Waste Impoundments: Risks, Responses, And Alternatives, (National Research Council 2002).

SMCRA does not require that the permittee choose the method of coal waste management that is least damaging to waters of the United States – that function is mandated by the Section 404(b)(1) guidelines and the Corps cannot lawfully issue a nationwide permit enabling such mine waste disposal and sidestepping the applicant’s obligation to demonstrate that none of those alternatives (which are presumed to be less damaging and practicable since disposal of mine waste is not a water-dependent activity) is practicable in that particular case.

* With respect to disposal of excess mine spoil, SMCRA requires that certain design standards be met for disposal of excess spoil material off the mined area, but the mine plan design, including the sequencing of mining, the number and location of excess spoil disposal sites, the configuration and manner of disposal (i.e. compacted v. end-dumped durable rock fills) and the decision of whether to place spoil material on previously mined areas or in valley fills is left to the operator or permittee. SMCRA assumes that the provisions of Section 404 of the Clean Water Act will remain in force, and is not intended to be a surrogate for the requirements of the Section 404(b)(1) guidelines. Appendix B to the Memorandum of Understanding among the USACE, OSM, EPA and USFWS concerning concurrent and coordinated review of surface coal mining operations, acknowledges that SMCRA does not require that practicable alternatives that would avoid discharges to waters of the United States be evaluated or selected.

As with coal mine processing waste disposal, practicable alternatives to in-stream placement of end-dumped excess spoil material often exist, and the existence and practicability of such alternatives must be evaluated on a case-by-case basis. In many counties and watersheds, existing mine benches that are either under the control of the mining company or mineral lessor, or which were mined and are now abandoned mine lands, exist on which excess mine spoil could be placed, avoiding in-stream fill construction. Constructed, compacted fills can often be used in order to minimize the size and the ecological “footprint” of the fill in comparison to end-dumped durable rock fills. Additionally, the Corps cannot assume that application of SMCRA requirements will maximize the replacement of mined spoil on mined areas, since the uneven implementation of the elevation aspects of the “approximate original contour” requirement among the SMCRA state programs has resulted in many instances in which the final elevation of mined sites which have theoretically restored the mined land to the “approximate original contour” are indistinguishable from those that have been granted variances from that requirement. Nothing in the Clean Water Act authorizes or contemplates abdication by the Corps of Engineers of the regulatory functions under Section 404(b)(1), and issuance of NWP 21 without requiring an applicant to demonstrate the impracticability of avoidance of impacts to aquatic ecosystems through alternative mine plans, waste management and spoil disposal approaches, is blatantly unlawful.

* With respect to wetlands protection, NWP 21 is as wanting as it is in the case of protection of the headwater aquatic resources. The Corps assumes that the mining regulations provide the appropriate level of characterization of wetland resources, a sequencing requirement that requires exhaustion of practicable alternatives that do result in a discharge of fill material, and appropriate mitigation, when in fact the SMCRA requirements do nothing of the kind.

The actual regulation under the mining program (30 CFR 816.97(f)), consists of one sentence: “The operator conducting surface mining activities shall avoid disturbances to, enhance where practicable, restore, or replace, wetlands, and riparian vegetation along rivers and streams and bordering ponds and lakes.” Such an amorphous standard, missing the detail and the process of the Section 404(b)(1) guidelines, does not result in decisions concerning wetland protection comparable to application of the 404(b)(1) guidelines, and in particular, 230.10(a).

Compounding the problem is that lack of benchmarks in the mining program for measurement of “successful” wetland construction or reconstruction, and the failure of the mining programs to require that the areas disturbed to create a mitigation wetland either be required to be included under the mining permit (so that a reclamation responsibility period would be involved) or to post a reclamation bond under the mining program. Further, even were the bonded liability extended to the reclamation area (which it should be by law), the bond is only held 5 years - a period far too short to demonstrate a return of functions and values to a restored or “created” wetland.

KRC vigorously opposes the removal of the language concerning performance bonds. Bonding of mitigation measures under NWP 21 and other NWPs should be required in all cases unless there exists a comparable bonding program containing both an obligation to complete the proposed mitigation and which assures adequate maintenance and achievement of success, and that bond is available to the USACE in the case of permittee default.

The agency continues to assume mistakenly that bonding under 30 U.S.C. 1269 adequately bonds for implementation of Corps mitigation measures, and that state and federal regulatory authorities under the mining act will require mitigation for aquatic ecosystem impacts.

In truth, performance bonds under 30 U.S.C. 1269 do not, and cannot be a surrogate for bonds required under the Section 404 program. A separate performance bond must be required for the reasons that (a) neither state regulatory authorities nor OSM have authority to impose bond liabilities on regulated mines beyond those specified in the mining law; (b) assuming a violation of Corps mitigation conditions, the Corps would not have authority to cause a forfeiture of the bond nor authority to direct the expenditure of those funds on Corps mitigation requirements; and (c) the amount of the bond is established by law as that amount needed to assure completion of the reclamation plan required under 30 U.S.C. 1268; not Section 404 of the CWA.

Regarding mitigation, USACE is mistaken in believing that SMCRA imposes a mitigation requirement, or that such mitigation, to the extent it might be imposed under state water quality laws, is sufficient to satisfy the independent requirements of Section 404. The Corps cannot rely on measures taken by the permittee that are required under SMCRA to be utilized as mitigation measures under Section 404, since the reclamation measures required under SMCRA are intended to minimize adverse impacts and are not legally nor practically appropriate to be evaluated as compensatory mitigation. To allow a mine permittee to claim a required minimization or reclamation activity already imposed under SMCRA as compensatory mitigation under the CWA is “double-counting” and improperly blurs the sequential requirements of avoidance – minimization – mitigation imposed under the 404(b)(1) guidelines.

NWP 21 also unlawfully delegates the Corps regulatory authority in granting nationwide permit approval to surface coal mining operations that are “currently being processed as part of an integrated permit processing procedure.” Nowhere in either the Clean Water Act Section 404 or elsewhere in the law, nor in 30 CFR Part 230, is the Corps empowered to grant blanket permit approval based on an “integrated permit processing procedure” – a concept that has no legal definition, and the comparability of which has not been subject to public notice and review. Absent submittal of a request for delegation of 404 permitting authority by a state and approval of same, no state-led permitting process can be allowed to supercede the requirements of the 404(b)(1) guidelines.

Finally, while KRC opposes any reissuance of NWP 21, to the extent that the agency reissues a more narrowly-defined nationwide permit for mining activities that required a demonstration of unavoidability of impacts as a threshold prior to consideration of minimization and mitigation, KRC does support the inclusion of ephemeral stream channels, and stringent upper-bound acreage limits. Acreage limits alone are not a surrogate for appropriate biological, chemical and functional analysis of the aquatic ecosystems and the impact of placement of material in waters of the United States in a particular watershed, so that the arbitrary 250-acre limit utilized under the Haden settlement or the similarly arbitrary Kentucky value alone is insufficiently related to the functions and values of a watershed to support distinction between an impact that should be required to be reviewed under a individual or a nationwide permit application. However, use of a more carefully defined acreage limit that aggregates and caps all impacts to ephemeral, intermittent and perennial stream reaches of a mining operation with the possibility of lowering that limit depending on the results of the biological assessment, would have merit as a guide to the individual Corps offices.

In sum, as proposed, NWP 21 represents an excessive and irresponsible delegation of the Corps’ independent regulatory responsibility to state and federal mining agencies that have neither the authority nor the tools to demand avoidance, minimization or compensatory mitigation for aquatic ecosystem impacts.

2. Nationwide Permit 44 for mining activities invites significant localized damage to stream quality and mussel populations, and should not be included in the final proposal.

The proposal fails to protect mussel beds, which are both a significant commercial resource in areas of Kentucky, and also serve a critical function of filtering stream contaminants. Further, the proposal fails to coordinate issuance of a nationwide permit with the resource agencies (state and federal fish and wildlife agencies) as well as mining and water resources agencies in each District. For example, the removal of coal from a stream is a regulated activity under the Surface Mining Control and Reclamation Act of 1977. Additionally, any discharge of return flow must be permitted under the state water quality laws. Beyond the aquatic impacts, the use of a nationwide permit eliminates the individual “public interest review” of the on-land structures that will be used to support the mining.

Also missing is any consideration of the disposal of the dredged material and wastes from washing of the mineral, or consideration of the aquatic impacts of resuspending potentially contaminated streambed materials (i.e. sand and gravel).

3. The Proposed New Nationwide Permit E Subcategory For Coal Remining Activities And F for Underground Coal Mining Activities Should Be Eliminated

The proposed issuance of NWP Permits E and F, respectively, authorize “discharges of dredged or fill material into non-tidal waters of the United States associated with the remining and reclamation of lands that were previously mined for coal” and discharges “associated with underground coal mining and reclamation operations.” In the case of the former category, the Corps proposes to allow the permittee to conduct coal mining activities “in an adjacent area, provided the newly mined area is less than 40 percent of the area being remined and reclaimed.” In the case of underground coal mining operations, the discharge is limited to no greater than 1/2 acre of non-tidal waters of the United States.

There is no rational basis enunciated by the Corps for creation of these new subcategories of “surface coal mining operations,” since under SMCRA, the term “surface coal mining operations” includes both Title V permits authorizing remining of previously-mined lands as well as mining of lands that have not been previously disturbed, and also the surface effects and surface operations (including placement of spoil material from mine cuts created to provide above-drainage underground mine access) of underground coal mines. Properly administered, Section 404(b)(1) would actually require additional scrutiny of a proposal by a strip, contour, area or mountaintop removal operation proposing to remine a previously mined area, since the availability of mine benches and existence of roads and prior fills and other upland locations for disposal of spoil material would in many cases allow remining to occur without any new placement of fill material in waters of the United States.

It is unclear from the proposed text of new NWP E how the Corps intends the remining activity authorization to work. Under both SMCRA Section 701(34) and the Clean Water Act Section 301(p), remining operations are limited to those lands on which mining was conducted prior to the applicability of SMCRA Title V, and yet the proposed nationwide arbitrarily and capriciously expands that category to include mine plans where up to 40% of the area to be mined is not land eligible for remining under either law.

In amending the Clean Water Act in 1987, Congressman Rahall created a specific amendment to Section 301(p) which allowed case-by-case departures from categorical effluent limitations for iron, manganese and pH for surface coal remining operations, and which required permit-specific determinations of what is the best available technology and imposition of alternative effluent limits based on that determination. There was no comparable amendment to Section 404(e) or other language in Section 404 that would allow the Corps to vary from the Section 404(b)(1) guidelines nor to weaken the obligations of 30 CFR 230.10 simply because 40% of a mine plan was remining a previously disturbed area.

The reality is that the vast majority of current surface mining operations are remining disturbed areas that were previously mined and either abandoned or reclaimed, and are doing so under Title V permits for which no alternative effluent standards are required or justified under Section 301(p). Absent some justification not provided, proposed NWP 44E should be withdrawn as being overbroad and unjustified. Neither SMCRA nor the CWA allows categorical exemption of Title V operations conducted on previously mined lands from the requirements of 30 CFR 320.10 and the replacement of those requirements for avoidance, minimization and mitigation with the proposed amorphous standard of a “net increase in aquatic resource functions.”

Similarly, proposed NWP F seeks to authorize an additional nationwide permit that is both unnecessary and inappropriate to address the surface operations of underground coal mines, which are included under the SMCRA definition of “surface coal mining operations.” Any proposed disturbances to aquatic ecosystems to support coal processing or underground coal mining activities should be subject to the full range of Section 404(b)(1) analyses, including the demonstration of impracticability of alternatives to the impoundment or filling of headwater streams to support the mining. Closed loop washing systems, upland coal waste disposal and other non-stream waste management approaches exist, and must be demonstrated to be impracticable before appropriation of public waters for waste disposal or sediment control can be approved.

In sum, and for the reasons stated above in the context of the discussion of NWP 21, both new E and F should be withdrawn, and the mine permittee should be required to demonstrate compliance with 30 CFR 230.10(a) prior to placement of any spoil or waste material in a water of the United States as part of a Title V mining operation, whether that operation is permitted as a strip or underground mine, or is mining previously mined or virgin mining areas.

4. The Nationwide Permit Program Should Include A Compliance Evaluation Component

Lack of compliance sampling has resulted in numerous instances in which activities authorized under NWPs have, through failures of implementation and through intentional violations, resulted in substantial adverse effects. Each nationwide permit category should be subject to a statistically sufficient number of compliance sampling inspections to determine whether compliance is being achieved and conditions being satisfied, and sufficient sampling should be conducted to determine whether, in fact, the various categories of NWPs are having more than minimal individual or cumulative impacts.

5. Nationwide Permit 16 Needs Revision.

This nationwide permit authorizes an exemption from individual permits for return water from an upland contained dredged material disposal area, provided that the quality of the return water “is controlled by the state through the section 401 certification procedures.”

In order to assure that the lands and waters draining the disposal areas are not contaminated from pollutants entrained in the dredged material (such as metals, PCBs and other pollutants which have precipitated out of the water column), the exemption should be tightened to require that the discharge from the dredged material be exempted from individual permit review only where the discharge / leachate from the dredged material is controlled through a national pollutant discharge elimination system permit. Mere reference to Section 401 is insufficient, since the owner might argue that the discharge is not a point source and thus has no compliance obligation under Section 401.

6. General Condition 24 Needs Revision To Prevent Stacking of Nationwide Permits For Coal Mining Operations

While KRC supports the prohibition on stacking (using more than one) nationwide permits for a “single and complete project,” the intent of this general condition to prevent an applicant from segmenting a project into “insignificance” by stacking several nationwide permits for a project is easily defeated in those instances where acreage limits have nor been imposed. For example, under the proposed reissued nationwide permits, a mining applicant who proposes an underground mine in conjunction with surface coal remining, new mining, and coal processing, could stack several NWPs and avoid proper application of the 404(b)(1) guidelines by separately permitting each area, despite the fact that the individual activities were integrally related and conducted concurrently or sequentially as part of the same “project.” Stacking of nationwide permits for proposed mining operations must be addressed by requiring that the Corps office evaluate the entire mining project, including all mining activities owned, controlled or operated by the same mining entity or related entities within a watershed, or utilizing common facilities, structures or disposal sites. The acreage of all related activities associated with a mining operation or mining complex must be aggregated in determining whether the cumulative impact is “minimal.”

7. The Proposal To Create Each New Nationwide Permit Should Be Preceded By Development of Environmental Documentation Under NEPA

The proposal to issue six new nationwide permits must be accompanied by an Environmental Impact Statement or other appropriate environmental documentation for each of the new proposed categories. The issuance of nationwide permits is certainly within the ambit of the definition of “major federal action” under 40 CFR 1508.18, since “actions” include “new and continuing activities, including . . . programs . . . regulated, or approved by federal agencies[]” and “adoption of official policy.” Additionally, the issuance of nationwide permits constitutes an agency determination regarding allocation of resources among the programs within its’ jurisdiction, and as such falls within the definition of “federal action” within the meaning of 40 CFR 1508.18(b)(3) as an “adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.” The failure to conduct an EIS or to solicit public input on an environmental assessment that analyzes the impacts and alternatives to each of these new nationwide permits violates NEPA.

Thank you for your consideration of these comments.

Sincerely,
Tom FitzGerald
Director


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