Re-Issued Section 404 Nationwide Permits Now Effective

Yesterday the Huntington District of the US Army Corps of Engineers issued a public notice  providing information about the new Section 404 Nationwide Permits and the regional conditions that have been imposed by the Huntington and Pittsburgh Districts in West Virginia.  Under Section 404 of the Clean Water Act, the Corps is responsible for issuing permits for discharges of dredge or fill material to waters of the United States.  The Corps issues general permits, called Nationwide Permits, or NWPs, and each Corps District can impose additional requirements that apply in that District.  Then each state can impose conditions that are designed to protect water quality in that state, known as the 401 water quality certification.  Here is how the Corps explained the process that brought us to yesterday's notice:

On February 21, 2012, the Corps of Engineers published, in the Federal Register, the final rule for the administration of its nationwide permit program regulations under the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and the Marine Protection, Research and Sanctuaries Act. The rule became effective on March 19, 2012.

An integral part of the Corps’ regulatory program is the concept of nationwide permits (NWPs) for minor activities. NWPs are activity specific, and are designed to relieve some of the administrative burdens associated with permit processing for both the applicant and the Federal government. The NWPs, published in the February 21, 2012, Federal Register, Issuance of Nationwide Permits (77 FR 10184), are issued by the Chief of Engineers, and are intended to apply throughout the entire United States and its territories. The Corps Districts representing

West Virginia have imposed regional conditions on the NWPs that are applicable throughout the entire state. For convenience, all NWPs with the appropriate regional, general and special conditions are attached.

I also received the following from Jason Bostic of the WV Coal Association.  I can't improve on what he said, so I'll just pass it along as he wrote it.  

Attached to this message is a Public Notice issued yesterday by the Huntington and Pittsburgh Districts of the U.S. Army Corps of Engineers (Corps) regarding the recently-revised Clean Water Act (CWA) Section 404 Nationwide or General Permits (NWPs).  The attached document represents the final-effective regional conditions that will be implemented by the Huntington and Pittsburgh Districts on NWPs within the State of West Virginia.  For the mining-specific NWPs (21, 49 and 50), the final regional conditions mirror the restrictions for the national use of the permits.  The new NWPs became effective for West Virginia yesterday with the publication of the attached notice from the Huntington and Pittsburgh Districts.

While the permits are final and can be used in West Virginia, they will require an individual water quality certification under CWA Section 401 from the West Virginia Department of Environmental Protection (WV DEP).  The state agency has yet to propose its CWA 401 Certification requirements for public notice and comment.  Until these state certifications are final, all use of the NWPs will require individual state certifications.      

On February 21, 2012 the Corps published a Federal Register notice announcing the “new” programmatic NWPs.  The final versions of the NWPs contained new restrictions on their use for mining-related activities:  

Nationwide Permit	Limits	Pre-Construction Notification (PCN) Threshold	Changes in 2012	Other Information
21 Surface Coal Mining	--  1/2 acre of nontidal waters of U.S. --  300 linear feet of stream bed (DE can waive for intermittent and      Ephemeral streams AFTER agency consultation) --  Cannot be used to authorize valley fill construction	all activities	Added 1/2-acre limit and limits losses of stream beds to 300 linear feet unless district engineers waives in writing for intermittent and ephemeral streams. Agency coordination required for proposed waivers of the 300 linear foot limit. Does not authorize valley fills. Added definition of “valley fill.”	Activities that were verified under the 2007 NWP 21 may be reauthorized without the limits, if the permittee submits a written request to the DE for reauthorization by February 1, 2013. Expansions in waters of the U.S. are not eligible for reauthorization. To be reauthorized, the district engineer must issue a written verification.
49 Coal Remining	Limited to sites that were previously mined for coal, but new mining may be conducted in adjacent areas if the newly mined area is less than 40 percent of the area being remined plus any unmined area needed for reclamation	all activities	Clarified how the 40% of newly mined area is determined. Corps will review the SMCRA determination regarding the amount of previously unmined area necessary for the reclamation and make an independent determination of the amount needed.	Permittee must demonstrate net increase in aquatic resource functions through reclamation; activities must be authorized by the Department of Interior, Office of Surface Mining , or by states with approved programs under Title IV and V of the Surface Mining Control and Reclamation Act of 1977 or are currently being processed as part of an integrated permit processing procedure; prospective permittee must receive written authorization prior to commencing the activity
50 Underground Coal Mining	--  1/2 acre of nontidal waters of U.S. --  300 linear feet of stream bed (DE can waive for intermittent and      Ephemeral streams AFTER agency consultation)	all activities	Added 1/2-acre limit and a 300 linear foot limit for any activity causing the loss of stream bed. The 300 linear foot limit may be waived for intermittent and ephemeral streams through a written determination made by the DE. Agency coordination required for proposed waivers of the 300 linear foot limit.	Activities must be authorized by the Department of Interior, Office of Surface Mining, 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. If reclamation required, a copy of the plan must be submitted with PCN. Does not authorize coal preparation and processing activities outside of the mine site. Prospective permittee must receive written authorization prior to commencing the activity

The Huntington and Pittsburgh Districts originally proposed a unique set of regional conditions for the new NWPs (see attached Public Notice from April 2011).  However, the final public notice has simply adopted the programmatic thresholds announced in the February 2012 Federal Register Notice. 

WV DEP is currently working on its draft CWA Section 401 certifications.