Corps brings back streamlined strip-mine permits

February 16, 2012 by Ken Ward Jr.

There’s been an interesting development this week on mountaintop removal that I’m not sure most people have caught onto yet … Here’s the press release issued yesterday by the U.S. Army Corps of Engineers:

The U.S. Army Corps of Engineers (USACE) announced today revised and renewed nationwide permits necessary for work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The permits are necessary to replace existing permits, which expire on March 18, 2012. The new NWPs will take effect March 19, 2012.

Most specifically:

NWP 21 – The NWP 21 for Surface Coal Mining Activities is revised to impose new limits on stream impacts that may be authorized, consistent with the other NWPs, and prohibits valley fills under this NWP. This updated permit was based on extensive feedback from the public and key stakeholders and leverages important flexibilities while also taking steps to protect wetlands. Updated permits will only be necessary for new or expanded activities. Operators that relied upon previously verified surface coal mining authorizations, but have not yet completed work in waters of the U.S., may request re-verification under the 2012 NWP 21 of all previously authorized activities.

Now you may remember that these are the “streamlined” permits for strip-mines and other activities — the same process that was struck nearly three years ago by Chief U.S. District Judge Joseph R. Goodwin and that the Obama administration promised it was going to stop using for surface coal mining in Appalachia.

This new version of NWP 21 is different. It will include some limits on the surface coal mining activities that can be authorized under it. Those limits are 1/2-acre and 300 linear feet of waters filled. Corps officials explained:

The 1/2-acre and 300 linear foot limits will substantially reduce the amount of stream bed and other waters lost as a result of activities authorized by this NWP, and limit this NWP to minor fills associated with surface coal mining activities, such as the construction of sediment ponds.

Interestingly, though, the agency also said:

However, that 300 linear foot limit may be waived by the district engineer if the proposed activity involves filling or excavating intermittent or ephemeral stream beds and the district engineer determines, in writing, that that activity will result in minimal individual and cumulative adverse effects on the aquatic environment. Agency coordination for proposed losses of greater than 300 linear feet of intermittent or ephemeral stream bed is intended to provide information that will assist the district engineer in making his or her minimal adverse effects determination.

8 Responses to “Corps brings back streamlined strip-mine permits”

  1. Vernon says:

    So, let me get this straight. The new NWP prohibits valley fills or filling streams greater than 300 feet (100 yards) unless the district engineer says that doing so will have only minimal impact? So, pretty much back to where we were, right?

  2. Edd442 says:

    Actually, the new NWP 21 prohibits all valley fills, not just those over 300 feet, unless waived by the District Engineer.

  3. Vernon says:

    I believe it still allows valley fills: “The 1/2-acre and 300 linear foot limits will . . . limit this NWP to minor fills associated with surface coal mining activities, such as the construction of sediment ponds” and the “300 linear foot limit may be waived by the district engineer if the proposed activity involves filling or excavating intermittent or ephemeral stream beds.”

  4. Ken Ward Jr. says:

    Vernon

    It’s important to consider that the 1/2-acre limit cannot be waived.

    Ken.

  5. Brad says:

    Ken, do you know how many extra linear feet will be allowed by the .5 acre extension?

    In my estimation, this waiver will almost double the 300 feet allowance.

  6. Ken Ward Jr. says:

    Brad,

    I have not done the math on that.

    Ken.

  7. BioVTjunkie says:

    The 0.5 limit typically is in reference to wetlands. In terms of streams, the USACE placed a 300 foot limit because the total amount of acres in a stream channel is based on length, width, and depth. You can have an awful lot of stream, particularly ephemeral stream, with a 0.5 acre limit. That is why the permit states “including the loss of no more than 300 feet of stream bed”. Additionally the permit states NO VALLEY FILLS. This cannot be waived. One has to be careful not to confuse fill material and “valley fill”. The NWP authorizes the discharge of dredged and fill material so the NWP 21 would allow fill material but it will not allow VALLEY FILLS. Fill material would include culverts, sediment control structures (the embankment is considered fill material), and small mine-throughs.

    Ken is correct regarding the 0.5 acre limit. It cannot be waived as this would no longer be considered a minimal impact and it would not qualify for a nationwide permit.

    If you read the actual permit terms which are found at the very bottom of the document. The NWP 21 will require a PCN, etc.

  8. Vernon says:

    So let me make sure I understand. Coal companies can’t have valley fills under the new NWP 21, but they can place fill material in streams?

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