Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 (502) 875-2845 fax
October 9, 2001
Washington D.C. 20314-1000 By fax 202-761-4150
U.S. Army Corps of Engineers
167 North Main Street, Room B-202
Memphis TN 38103-1894
Huntington District, Attn: OR-FN
U.S. Army Corps of Engineers
502 Eighth Street
Huntington WV 25701
Louisville District, Attn: OP-FS
U.S. Army Corps of Engineers
Post Office Box 59
Louisville, Kentucky 40201-0059
Re: Nationwide Permit Reissuance
Draft Programmatic Environmental Impact Statement
66 Fed. Reg. 48665
To Whom It May Concern:
These comments are submitted on behalf of the Kentucky Resources Council, Inc., a non-profit environmental advocacy organization whose membership shares a common interest in prudent use and conservation of the natural resources of the Commonwealth of Kentucky. Through the National Citizens' Coal Law Project, the Council provides legal and technical assistance nationally to coalfield citizens on coal mining-related matters.
The Council has reviewed the proposed reissuance of the existing nationwide permits, and the draft Environmental Impact Statement. 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 permits reissuance and the DPEIS, and offers these additional comments.
These comments supplement my earlier comments submitted by fax at 4 p.m. Monday.
In summary, the Council's concerns regarding the proposed nationwide permit reissuance are these:
1. Nationwide permits are being utilized to streamline review of activities whose impacts are not in fact minimal, individually or cumulatively;
2. The timing of the proposed reissuance of NWP 21 is premature and inconsistent with the USACE's NEPA obligations, since the Draft Environmental Impact Statement has failed to adequately consider and disclose for public and inter-agency review the effects of the alternative of eliminating NWP 21 and other nationwide permits that have been controversial due to their substantial environmental effects, and reissuing others that are truly minimal in effect when conducted according to conditions of approval;
3. The nationwide permits, and NWP 21 in particular, are flawed for failing to recognize the bar in the USACE regulations prohibiting approval of placement of waste material in waters of the United States. The final rule reissuing nationwide permits must clearly and unambiguously prohibit placement of coal processing wastes and underground development wastes in "coal waste dams" or "tailings piles" in waters of the United States, and must further prohibit the placement of coal mine "spoil" material in such waters as "waste disposal" unless the final design of the valley fill structure is to demonstrated to be necessary support the approved post-mining land use and is thus placed for a beneficial purpose;
4. Nationwide 21 should be significantly restricted or eliminated, since it wrongfully assumes the state or federal regulatory agency under the 1977 Surface Mining Control and Reclamation Act is engaging 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;
5. Bonding of mitigation measures under NWP 21 and other NWPs should be required in all cases unless a comparable bonding program contains both an obligation to complete the mitigation and bonds the mitigation activity and success period, and where such execution of the bond in the event of forfeiture is available to the USACE;
6. Use of Vegetated Buffers Is Not Compensatory Mitigation;
7. The Nationwide Permit Program Must Include Compliance Evaluation Component.
8. Nationwide Permit 16 needs revision.
9. Nationwide #26 must be modified to lower significantly the threshold of activities not requiring an individual permit.
10. General Conditions Need Improvement.
1. Nationwide permits are being utilized to streamline review of activities whose impacts are not minimal, individually or cumulatively.
In announcing the reissuance of the nationwide permits, Chief Studt described the proposed reissued nationwide permits as doing "a better job of protecting aquatic ecosystems while helping the regulated public with clearer, simpler language." Unfortunately, in several key areas, the new permits carry forward problems with the existing program that have resulted in substantial adverse impacts on land and water resources.
Initially, the Council is concerned that the nationwide permitting process has largely become a de facto exemption from regulation, rather than a more "streamlined" regulatory process, as was intended by 33 CFR 330.1(b). Absent a commitment from each of the District offices to require advance notification of intent to be covered under a nationwide permit, and to conduct routine compliance monitoring of the nationwide permits, particularly in those categories where abuse is most common, the grant of nationwide status becomes an exemption from regulation. While nationwide permits were envisioned as being a type of general permit that would "regulate with little, if any, delay or paperwork certain activities having minimal impacts," in truth the Council is concerned that certain of these nationwide permits have allowed activities to be authorized or to occur which cause significant cumulative impacts on waters of the United States. The damage that has occurred is in part because of flawed assumptions in certain of the nationwide permits (such as the "headwaters" exclusion of 5 cfs flow; and the delegation of authority under Nationwide Permit 21); and in part because of the lack of meaningful enforcement of the restrictions and conditions of the nationwide permits.
2. The timing of the proposed reissuance of NWP 21 is premature, since the Draft Environmental Impact Statement has failed to adequately consider and disclose for public and inter-agency review the effects of the alternative of eliminating certain nationwide permits that have been controversial due to their substantial environmental effects.
The Draft Programmatic Environmental Impact Statement (DPEIS) recognizes that general permits, of which nationwide permits are a type, are appropriate only for activities that "are substantially similar in nature and cause only minimal individual and cumulative adverse environmental impacts to aquatic resources." DPEIS P. S-1. The DPEIS at S.3.1.2 acknowledges that the cumulative impact assessment that has been done by Regional Offices has been, to be generous, primitive and ineffective. The "implicit cumulative impact reference base" of a project manager is no surrogate to analytical information of a biological and chemical nature of the watershed water quality, flow and quantity and hydrologic response, and the individual and cumulative hydrologic consequences of the proposed activity in the context of existing and other proposed mining operations.
3. The nationwide permits, and NWP 21 in particular, are flawed for failing to recognize the bar against approval of placement of waste material in waters of the United States.
The final rule must clearly and unambiguously prohibit placement of coal processing and underground development wastes in "coal waste dams" or "tailings piles" in waters of the United States, and must further prohibit the placement of coal mine "spoil" material unless the final design of the structure is to necessary support the approved post-mining land use and is thus placed for a beneficial purpose.
There is little question but that under the USACE's current definition of "fill material" placement of coal wastes and waste spoil is illegal under Section 404. The Clean Water Act provides that except where it is in compliance with the Clean Water Act, "the discharge of any pollutant by any person shall be unlawful." A "discharge of a pollutant" includes any addition of any pollutant to navigable waters "from any point source." "Pollutant" includes, among other things, dredged spoil, solid waste, garbage, sewage, rock, sand, and industrial waste. Section 402 of the Clean Water Act authorizes EPA or delegated states to issue pollutant discharge permits for discharges into navigable waters, provided that they meet applicable effluent and water quality standards. Section 402 recognizes an exception from this authority in Section 404 of the Act.
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 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 contains several exemptions from the restrictions on placing dredged or fill material without a permit, none of which affect or authorize placement of mine-related overburden or mine waste material in waters of the United States.
A primary concern to coalfield residents is whether the discharge of mine overburden (so-called "excess spoil") and coal mine-related wastes, into navigable waters through the dumping of these materials into "head-of-hollow" or "valley fills" is an activity authorized under the Corps of Engineers Section 404 program, in which case a permit to conduct that activity can be approved provided that the Section 404(b)(1) guidelines are met. If the activity is not authorized by Section 404, the discharge would fall under EPA's authority over discharges under Section 402 of the Act and would be prohibited, since the placement of such material would necessarily violate water quality standards' prohibition against degradation of the water quality.
The current Corps of Engineers regulations defining the scope of their 404 permitting program define "fill material" as any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody. It is clear that under current law and regulation, coal mining overburden, coal combustion wastes, coal processing wastes and fines, are wastes that are currently prohibited from disposal in valley fills under Section 404.
The Corps' current regulatory definition and the 1986 MOA, present a strong argument that these materials are prohibited under the 404 program, because they are "pollutants" being discharged into a water of the United States "primarily to dispose of waste." As such, under the current Corps definition of fill material under 33 C.F.R. 323.2(e) it should be regulated under Section 402 of the Act by EPA as a point source discharge.
Prohibition of disposal of coal wastes under the Section 404 program is also consistent with past EPA and Corps policy. In the RII case, the 9th Circuit quoted from a 1984 letter from EPA Administrator to the Corps, regarding:
"the proper way to regulate garbage disposal and
other waste disposal in waters of the United States
. . . . . EPA has many solid waste responsibilities
under its RCRA programs and has developed expertise
in that area. Army has very limited expertise. Hence,
we would have to establish duplicative expertise which
may well result in policies and technical decisions which
differ from those of EPA. It would not be in the best
interests of Government for EPA to work with the states
under RCRA under one policy and Army to operate a 404
permit program for garbage disposal on a different basis.
It is logical to identify regulation of garbage disposal with
EPA's current and historic mission. It strains reason to
have the Army Corps of Engineers, with its primary
military and navigation missions, to lead this garbage
This letter was followed by the 1986 Memorandum of Agreement between the EPA and the Corps, published at 51 Federal Register 8871. That agreement was intended as an interim agreement
to ensure an effective enforcement program under
section 308 of the CWA for controlling discharges of
solid and semi-solid wastes into waters of the United
States for the purpose of disposal of waste. . . . If it
becomes necessary to determine whether section 402
or 404 applies to an ongoing or proposed discharge, the determination will be based upon criteria in the agree-
The agreement was to "automatically expire" when EPA finalized the Subtitle D waste regulations. While the 9th Circuit decision construed the interim agreement as having expired in 1991 when EPA published the revised Subtitle D regulations, a conversation with one of the authors of the current proposed rule indicates the EPA position is that the 1986 MOA is still in effect. That being the case, the proposed rule change cannot be squared with the 1986 MOA. For in the Section B5 of the 1986 Memorandum of Agreement, both agencies noted that:
a pollutant (other than dredged material) will normally be
considered by EPA and the Corps to be subject to section 402
if it is discharged in liquid, semi-liquid, or suspended form or if
it is a discharge of solid material of a homogeneous nature
normally associated with single industry wastes, and from a
fixed conveyance, or if trucked, from a single site and set of known processes . These materials include placer mining wastes, phosphate mining wastes, titanium mining wastes,
sand and gravel wastes, fly ash, and drilling muds. As appropriate. EPA and the Corps will identify additional such materials.
Id. (Emphasis added).
The definition of wastes that will typically be regulated under Section 402 in the above-quoted paragraph is fully consistent with the treatment of coal mining wastes under the waste exclusion in the Corps "fill" definition and with the suggestion in the 1984 letter from EPA Administrator Ruckelshaus that EPA was better able to address waste disposal in waters of the United States under Section 402 of the Clean Water Act. That it has been the joint policy of the Corps and EPA that these wastes should be managed under Section 402 was reinforced in a cover memorandum from Lawrence Jensen, then-Assistant Administrator of the Office of Water, to Regional Administrators transmitting the MOA ("In accordance with the MOA, wastes of a homogenous nature normally associated with a single industry and discharged from a fixed conveyance, or if trucked from a single site such as fly ash, are subject to the provisions oft (sic) the section 402 NPDES program.")
Commenter understands that EPA and the Corps intend to finalize the controversial role. Until and unless that rule is finalized, NWP 21 cannot authorize, any more than an individual permit, can authorize disposal of coal mine wastes and waste spoil in waters of the United States.
4. Nationwide 21 should be significantly restricted or eliminated, since it wrongfully assumes the state or federal regulatory agency under the 1977 Surface Mining Control and Reclamation Act is engaging 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 new proposal for NWP 21 proposes two changes "designed to increase protection of the aquatic environment." Additionally, according to the summary, the Corps will engage in a case-by-case review to assure that the adverse effects of the permitted activity are "no more than minimal, both individually, and cumulatively." For a number of reasons, these changes are insufficient to meet the demands of the CWA and to assure protection of water resources and associated wetlands:
a. The clarification that "full mitigation" will be required "even though this may include mitigation beyond what is required by the State under the project's coal mining permit" is welcome, yet the proposal to reauthorize NWP 21 fails to require full compliance with the Section 404(b)(1) guidelines, and illegally jumps from avoidance and past minimization directly to 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. The choice of disposal site is left to the operator or permittee subject to the requirement to submit a plan showing stability and application for a stream buffer zone variance.
The nationwide permit for surface coal mining operations should be revoked and reissued with substantial modification.
b. Protection of wetlands from mining suffers under NWP 21. Nationwide 21 provides a nationwide permit for those surface coal mining operations which hold a Title V permit under the 1977 Surface Mining Control and Reclamation Act (30 U.S.C. 1201 et seq.), on the assumption underlying the nationwide permit is that the lead agency for management of the impacts of mining on waterbodies should be the federal or state regulatory authority under the federal mining act.
In practice, the delegation of regulatory oversight by the Corps of Engineers to the regulatory authorities under SMCRA does not result in appropriate protection of waters of the United States. In essentially waiving jurisdiction over wetlands based on the existence of a Title V mining permit, USACE assumes that the mining regulations provide the appropriate level of characterization of the resource, a sequencing requirement, and appropriate mitigation methodology and procedures for evaluation and approval of a wetland mitigation plan.
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, is more likely than not to result in substandard decisions concerning wetland conservation.
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.
c. Nationwide permit 44 for mining activities invites significant localized damage to stream quality, 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).
5. Bonding of mitigation measures under NWP 21 and other NWPs should be required in all cases unless a comparable bonding program contains both an obligation to complete the mitigation and bonds the mitigation activity and success period, and where such execution of the bond in the event of forfeiture is available to the USACE.
The language of proposed NWP 21 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.
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.
In sum, NWP 21 represents an excessive, irresponsible delegation of independent regulatory responsibility to state and federal mining agencies that have neither the authority nor the tools to demand avoidance, minimization or compensatory mitigation fro aquatic impacts.
6. Use of Vegetated Buffers Is Not Compensatory Mitigation
The preamble to the proposed reissuance of NWPs proposes to include a General Condition 19 that will require "compensatory mitigation with other aquatic resources or vegetated buffers in order to offset the authorized impacts to the extent necessary to ensure minimal adverse effects on the aquatic environment."
While, under certain conditions, vegetated buffers can be of assistance in trapping sediment and lowering mass loading of pollutants into waters of the United States, the use of vegetated buffers as a way to mitigate impacts is not compensatory in nature and should not be confused as such. Compensation is defined at law as "making amends; making whole; giving an equivalent or substitute of equal value; equivalent given for property taken or for injury done to another[.]" Black's Law Dictionary, 4 th Ed.
Compensation for losses to the functions, values, and in some cases the existence of waters of the United States (as in the case of filling wetlands and stream reaches or eliminating biological communities by damming rivers or streams); must be made by providing enhancements at least as great, measured in functional, spatial and temporal terms, as the impacts incurred. Application of basic Best Management Practices (BMPs) such as vegetated buffer strips, do not compensate for impacts but merely lessen the extent of impacts of disturbances on those resources.
7. The Nationwide Permit Program Must Include 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.
8. 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.
9. Nationwide #26 must be modified to lower significantly the threshold of activities not requiring an individual permit.
While USACE has reserved NWP 26 for further revision, commenter submits these concerns based on past nationwide permit proposals.
The headwater of streams play important roles in the aquatic food web, and in providing spawning habitat and refugia, and the artificial 5 cfs standard has the effect, in a state such as Kentucky where 90% of the streams are considered "low flow," of excluding from any real consideration a significant amount of activities which can substantially impact water quality and water supply, and injure the rights of neighbors.
The artificial distinction between the headwaters of a stream and the downstream component is biologically unsound, and places the individual states in a position of constant pressure to erode Section 401 programs in order to make those programs consonant with the 5 cfs cutoff. Instead, the Section 404 program should incorporate the more expansive definition of streams (as including all headwaters) used by the Section 401 program.
NWP 26 has been responsible for the incremental destruction of significant acreage of wetlands in Kentucky, and in particular, the transformation of lands within urban wetland areas. The result has been a devastating rise in flood heights and increase in peak runoff flow, which aggravated the March 1, 1997 floods within the southern Jefferson County, Kentucky area.
The stacking of NPS has allowed projects which, individually and cumulatively have a significant impact on altering hydrology and habitat, to escape appropriate advance review in a manner never intended by the drafters of the original nationwide permits.
The Council does not support any reissuance of NWP 26, but believes that if NWP 26 is to be reissued, the extent of the reissuance should be limited to a transition period, water quality certification should be required from each state in order to assess the individual and cumulative impacts of issuance of NWP 26 permits within each subwatershed; and that the restrictions proposed should be imposed on such reissuance.
10. General Conditions Need Improvement
In order to assure that the issuance of nationwide permits does not cause adverse effects that are more than minimal, the NWPs should include as a general condition: (a) public notice in all cases where notification is required; (b) submittal of archaeological, terrestrial and aquatic biological species, and cultural and historic surveys of all areas proposed to be affected by the nationwide permit activity.
Comments On the DPEIS
The U.S. Supreme Court has ruled that the National Environmental Policy Act does not compel result, but rather only a full and fair assessment of the proposal for federal action and of alternatives to the action.
While NEPA does not compel selection of the most environmentally sound among alternatives, the Corps of Engineers is bound by the "public interest review" requirements of its own regulations, to choose the most environmentally sound among alternatives. The FPEIS and Record of Decision will be weighed against this more exacting standard.
The "field assessment" of the Nationwide Permit Program provided an inadequate analytical basis for documenting the extent and severity of aquatic and terrestrial impacts of the implementation o NWP 21. The DPEIS fails to fully incorporate and analyze the substantial body of scientific knowledge and information that has been amassed as part of the Environmental Impact Statement being prepared by USEPA, USACE and the Fish and Wildlife Service relative to the effects of mountaintop removal mining and valley fill construction on Appalachian streams and rivers. Commenter requests that all available technical and scientific studies, and the draft EIS for mountaintop removal and valley fills, be incorporated into this DPEIS and be assessed, and that a supplemental DPEIS be prepared concerning the proposal to reissue NWP 21, which includes the alternative of reissuance of other nationwide permits with the exception of NWP 21 and other controversial NWPs.
Thank you for your consideration of these matters.