Mining Law Update: Army Corps Revised Nationwide Permits Affecting Mining Operations Now Effective

March 21, 2012

by Scott Castro

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.