Coal Tattoo

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Tomorrow’s edition of the Federal Register (available here by the magic of the Internet) will include this notice from the U.S. Army Corps of Engineers, making good on part of the Obama administration’s plans for dealing with mountaintop removal coal mining.

As outlined last month, the Corps is proposing to eliminate the use of its streamlined permit process — in this case Nationwide Permit 21, or NWP 21 — for the approval of surface coal mining in Appalachia.

But the new Federal Register notice includes at least one twist that has critics of the Corps (and of mountaintop removal) a little concerned … I’ll get to that in a minute.

I’ve mentioned before that a federal judge already has told the government to stop using this streamlined permit procedure, at least in Southern West Virginia, where most mountaintop removal mining is taking place.  Oddly, the Obama administration, while saying it wants to do away with NWP 21 for this kind of mining, also filed a notice that it would appeal that court decision.

Technically, the Federal Register notice tomorrow announces two actions:

First, the Corps proposes 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 the following states: Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia until it expires on March 18, 2012. The proposed modification would enhance environmental protection of aquatic resources by requiring surface coal mining projects in the affected region to obtain individual permit coverage under the Clean Water Act (CWA), which includes increased public and agency involvement in the permit review process, including an opportunity for public comment on individual projects. The application of NWP 21 to surface coal mining activities in the rest of the United States would not be affected by this proposed modification.

Second, the Corps is proposing to suspend NWP 21 to provide an interim means of requiring individual permit reviews in Appalachia, while proposing to undertake the longer-term measure of modifying NWP 21 to prohibit its use to authorize discharges of dredged or fill material into waters of the United States associated with surface coal mining activities in the Appalachian region of these six states. The Corps is also proposing to suspend NWP 21 to provide immediate environmental protection while it evaluates the comments received in response to the proposal to modify NWP 21.

Tomorrow’s notice kicks off a 30-day comment period on the Corps’ proposals.

The notice includes a very straightforward statement from the federal government about the impacts of mountaintop removal that have environmental regulators concerned:

Since NWP 21 was first issued in 1982, surface coal mining practices have
changed, and surface coal mining activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia have become more prevalent and have resulted in greater environmental impacts.

Mountaintop surface coal mining activities increased because many of the remaining coal seams in the Appalachian region were less accessible to non-surface coal mining techniques. Since the late 1990s, there have been increases in concerns regarding the individual and cumulative adverse effects
of those activities on the human environment and the natural resources in this region, including streams and other aquatic resources.

Corps officials say the switch from processing valley fill applications under NWP 21 to individual Clean Water Act permits would improve their ability to reduce the impacts of mountaintop removal:

Using the individual permit process would provide more information for the Corps to consider for making decisions on these permit applications, because of increased public and agency involvement, such as the opportunity to comment on public notices for individual surface coal mining activities in Appalachia. This additional information could help improve the Corps’ analysis of impacts to public interest review factors, including the aquatic environment and other relevant environmental factors within the Corps’ Federal control and responsibility.

The notice added:

… The Corps now believes that impacts of these activities on jurisdictional waters of the United States, particularly cumulative impacts, would be more appropriately evaluated through the individual permit process, which entails
increased public and agency involvement, including an opportunity for public comment on individual projects.

Corps officials note that using individual permits instead would be “consistent with” the late March ruling by U.S. District Judge Joseph R. Goodwin.

Under a section titled, “Grandfathering,” tomorrow’s notice says that any NWP 21 authorizations made before the Corps’ proposal is finalized would remain in effect.  If work under the permit had started before any action by the Corps is finalized, mine operators would have 12 months to complete that work.

Oddly, though, the  notice also says that agency officials will continue to process NWP 21 applications until  the Corps makes a decision on the proposals being announced. The notice added this bit of caution for the mining industry:

Pending the Corps’ final decision on the suspension of NWP 21, those entities
proposing surface coal mining activities involving discharges of dredged or fill material into waters of the United States in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia may wish to consider whether it would be more prudent to request individual permits instead of submitting NWP 21 PCNs. The information required for the submittal of a complete application for a standard individual permit is different from the information required for the submittal of a complete NWP 21 PCN. Since NWP 21 could be suspended before a district reaches a decision on an NWP 21 PCN, the prospective permittee may choose to initially request an individual permit to avoid having to later submit a separate application for a standard individual permit, thereby saving his or her time and resources during the permit decision making process.

Still, the Corps’ plan to continue processing NWP 21 applications — while stating so clearly that the streamlined process is inappropriate for large-scale surface mining — has critics of the agency concerned. Jim Hecker, environmental enforcement director with Public Justice, was the one who pointed this language out to me today. Hecker said:

It is internally inconsistent for the Corps to acknowledge that the impacts of NWP 21 “may be more than minimal on a cumulative basis” and “would be more appropriately evaluated through the individual permit process,” and at the same time state that it intends to continue processing NWP 21 applications until it makes a final decision.  The Corps should not process any pending applications in the interim.

Comments on the Corps’ proposal may be made by visiting this Web site, and directing those comments to docket number COE-2009-0032. Or, send them the old-fashioned way to: U.S. Army Corps of Engineers, Attn: CECW-CO (Attn: Ms. Desiree
Hann), 441 G Street NW, Washington, DC 20314-1000.

And hey, the links above to the Federal Register notice will change after midnight tonight. Visit the current day’s Federal Register by clicking here.

UPDATED: The new direct link to the Federal Register notice is here.