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On March 19, 2012, two new and 48 reissued Nationwide Permits
(NWPs) for certain dredge and fill activities requiring
authorization under Section 404 of the Clean Water Act or Section
10 of the Rivers and Harbors Act took effect. Nationwide Permits
are issued by the Corps under Section 404(e) to provide a
streamlined authorization process for dredge and fill activities
having minimal adverse effects on the aquatic environment. Every
five years, the Army Corps of Engineers issues revised and/or new
Nationwide Permits. The last permits were issued in 2007, and
expired on March 18, 2012. The current NWPs will expire on March
18, 2017.
Two NWPs are specific to the mining industry: (1) NWP 21,
specific to surface coal mining activities; and (2) NWP 44,
applying to "mining activities" in general.
Changes to NWP 21 Will Impact the Surface Coal Mining
Industry
The changes to NWP 21 are significant. The 2007 NWP 21 had no
acreage or linear feet limits on its applicability. The 2012 NWP,
in contrast, is limited to activities impacting 1/2 acre or less of
non-tidal waters of the U.S., or 300 linear feet or less of stream
bed. The 300 linear foot limit can be waived by the district
engineer for intermittent and ephemeral stream, but such waiver
requires coordination with other agencies. Also, the 2012 NWP 21
does not allow valley fills, which presents a significant change
and challenge for the coal mining industry.
Changes to NWP 44 Provide Greater Flexibility for Non-Coal
Miners
The changes to NWP 44 are less significant, but provide non-coal
mining operations with greater flexibility in pursuing a
streamlined NWP. The 2007 NWP 44 applied for activities resulting
in impacts of 1/2 acre or less to jurisdictional waters. The 2012
NWP 44 includes, in addition to the 1/2 acre threshold, activities
impacting 300 linear feet or less of stream bed, which threshold
can be waived by the district engineer for intermittent and
ephemeral stream.
The 2012 NWPs Also Include New Conditions and
Definitions of Note
The 2012 NWPs also include three new general conditions and
three new definitions. Key among these revisions is the Corps'
decision to split the definition of "single and complete
project" into "single and complete linear project"
and "single and complete non-linear project." Although
this revision provides some clarity by distinguishing between
linear and non-linear, it places greater emphasis on cumulative
impacts and crossings within close proximity to one another,
potentially giving the Corps further incentive to exercise its
discretionary authority to impose additional conditions on
projects.
The Corps Retains Authority to Condition NWPs and
Require Individual Section 404 Permits
Both revised NWPs remain subject to the authority of division
engineers to regionally condition the NWPs to restrict or prohibit
their use in specific waters or categories of waters, or in
particular geographic regions. Also, both NWPs require
"pre-construction notification" (PCN) to the district
engineer, and following review of a PCN, the district engineer may
add any activity-specific conditions to the NWP authorization, or
even exercise discretionary authority and require an individual
permit if it is not possible to reduce the adverse effects of the
proposed activity.
Mining Operators May Continue to Rely on Other NWPs for
Discrete Project Facilities
Notably, existing NWPs that have been reissued, such as
Nationwide Permit 12 for utility line activities, NWP 14 for linear
transportation projects such as access roads, as well as other
general NWPs, may continue to also be utilized by mining projects
for discrete or "attendant" project facilities. Also, the
new permits contain a grandfathering provision providing that
projects that have commenced or are under contract to commence
activities by March 18, 2012 will have an additional year to
complete activities under their prior (2007) permits.
Conclusions
The changes to NWP 21 are significant and present considerable
challenges for surface coal mining operations intent on utilizing
the NWP process rather than an individual permit under Section 404.
The primary change to NWP 44 presents non-coal mining operators
with greater flexibility in attempting to rely upon the NWP, and
the potential waiver of the 300 linear foot limit for impacts to
ephemeral and intermittent streams provides mining operators with
greater potential to qualify for NWP 44. Of course, the division
engineers retain the ability to limit the applicability of NWP 44,
and the district engineers, on a case-by-case basis, retain the
discretionary authority to require an individual permit instead of
allowing use of the NWP.
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