Before 2001, most Section 404 permits for surface coal mines were issued as Nationwide Permit 21 (NWP 21), including valley fills associated with surface mine overburden disposal. After 2001, the U.S. Army Corps of Engineers (Corps) became more actively involved in the environmental review process and is currently permitting most surface coal mines as Individual Permits. While this adds significantly to the cost and time associated with getting a permit, it is not a “red-flag-project-stopping” permitting moratorium.

Under the Section 404 program, there are two types of permit authorization vehicles that can be used, either Nationwide or Individual Permits. Nationwide Permits are simple authorization vehicles that are based on the premise of minimal environmental impact; Individual Permits are much more complex and costly to prepare but can accommodate large impacts if justifiable.

NWP 21 authorizes the filling of Waters of the United States associated with surface coal mining and reclamation operations already authorized or currently being processed as part of the integrated permit processing procedure, by the U.S. Department of the Interior (DoI), Office of Surface Mining (OSM), or approved states under Title V of the Surface Mine Control and Reclamation Act (SMCRA) of 1977. Prior to 2001, the Corps largely
relied on the SMCRA permitting process to examine environmental impacts, including impacts to Waters of the United States.

NWP 21 has received much opposition from environmental protection groups over the past several years, including multiple court cases arguing against the legality of authorization. There were two notable court cases involving NWP 21 in West Virginia and Kentucky with the Huntington Corps District.

Summary of Court Cases
Two court cases were brought between 2001 and 2006 in the state of West Virginia that related to the issuance of NWP 21 for surface coal mines. The Kentuckians for the Commonwealth case was argued in the U.S. District Court Southern District of West Virginia in November 2001. In this case, the plaintiffs argued that the Clean Water Act (CWA) does not allow the Corps to issue permits for the discharge of dredge material for the purpose of waste disposal. Therefore, the Corps’decision of issuance of NWP 21 for mountaintop mining was ultra vires (beyond their legal authority). The court found in favor of the plaintiffs and ordered the Corps to stop issuing NWP 21s within the boundaries of the U.S. District Court for the Southern District of West Virginia.

That decision was appealed to the U.S. District Court of Appeals for the 4th Circuit in 2002. In December 2002, the 4th Circuit decided that the permit decision was not ultra vires and that the injunction was overly broad. As a result, the circuit court reversed and vacated the previous decision.

The Ohio Valley Environmental Coalition case was argued in the U.S. District Court, Southern District of West Virginia, and was decided in July 2004. In this case, the plaintiff argued that the issuance of any NWP 21 violated the procedures outlined in the CWA for the issuance of a general permit. The court found in favor of the plaintiff, issuing an order prohibiting the Corps from issuing any NWP 21 permits. That decision was appealed to the U.S. District Court of Appeals for the 4th Circuit in 2005. The 4th Circuit decided that the lower court erred in its decision and, in fact, held that none of the four arguments made in the earlier proceedings was true. The court overturned the lower courts injunction of the issuance of NWP 21, thus the decision was vacated.

Current Status of 404 Authorizations
In March 2007, the USACE reauthorized their Nationwide Permits, including NWP 21 for Surface Coal Mining Activities. Although there was much public input regarding the implementation of additional restrictions or limitations to be tied into the 2007 version of NWP 21, the reauthorized 2007 version includes no size restrictions or limitations. Nationwide Permit 21 for Surface Coal Mining Operations authorizes the discharges of dredged or fill material into Waters of the United States associated with surface coal mining and reclamation operations provided that the activities are already authorized or are currently being processed as part of an integrated permit processing procedure by the DoI, OSM, or states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977. The 2005 Memorandum of Understanding Related to this OSM reference in NWP 21, the USACE, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and OSM entered into a Memorandum of Understanding (MoU) in February 2005 for the Purpose of Providing Concurrent and Coordinated Review and Processing of Surface Coal Mining Applications Proposing Placement of Dredged and or Fill Material in Waters of the United States. This MoU provides a framework to process applications for surface coal mining operations that impact (i.e., fill) Waters of the United States. The MoU applies to the review and evaluation of permit applications for both CWA Section 404 and 1977 SMCRA regulatory programs.

Current Regulatory Environment
Skelly and Loy conducted telephone interviews with the Huntington and Louisville Districts of the Corps. Those officials stated that the 2007 NWP 21 was similar to the previous versions (i.e., 2001); however, they noted that, in general, the Corps looks at each NWP 21 Notification Application more closely and that if, in their opinion, the proposed project may not result in minimal environmental impact, they would exercise discretionary authority and require an Individual Permit. There is no “predetermined” size of impact that they use in evaluating the acceptability of NWP 21 Notification Applications, but rather the Corps evaluates the proposed project with respect to the localized resources.

Corps officials also indicated that, although the 2007 NWPs are currently active and in use, there are several lawsuits being brought against the Corps related to the legality of the NWP 21 (2007). The Corps will continue to evaluate NWP 21 Notification Applications on a case-by-case basis until directed otherwise from headquarters in response to a court decision.

Skelly and Loy also made a review of the Huntington Corps District and State of Kentucky Web sites to determine the regulatory climate related to permit applications of surface mining coal activities. A review involved a qualitative inspection of the public notices issued between 2005 and 2008 to determine the type of authorization (Nationwide or Individual).

The Huntington Corps District published 50 Public Notices for 404 Individual Permits between 2005 and 2008. Of those applications, 30 projects only involved impacts to intermittent and/or ephemeral streams. The remaining 20 applications involved impacts to wetlands and perennial streams in addition to impacts to intermittent and ephemeral streams. These public notices suggested that projects with even moderate impacts to lesser stream resources were being processed as Individual Permits, whereas in the past, they may have been processed as Nationwide Permits. The Huntington Corps District issued 67 Individual 404 Permits and 14 Nationwide Permits for surface mining projects between 2005 and 2008. There is no doubt that some of the permits issued over this period were filed as applications before 2005, hence the number of permits issued (67) exceeded the number of applications (50) submitted for the 2005 to 2008 period. These metrics also suggest that the majority of Section 404 authorizations issued by the Corps are Individual Permits.

These regulatory metrics suggest the following:
•    The majority (82%) of 404 authorizations are being issued as Individual Permits.
•    The majority of applications being filed are being approved, albeit as Individual Permits.

A review of the Public Notices for Kentucky 401 water quality certifications for mining project identified 22 permit applications under review. Of the 22 applications, the majority (18 out of 22 or 82%) are being evaluated as Individual Section 404 (Corps) Permits and as Individual State 401 water quality certifications. Eight of those applications only impact intermittent and ephemeral streams, suggesting the same trend towards Individual Permits being required for moderate impacts to lesser stream resources.

It would appear that from the review of the applications filed, the majority of the proposed impacts would occur to ephemeral and intermittent streams, and that the resulting permit review evaluation pathway at both the state and federal levels is through the Individual Permit review process. This data set provides reasonable support that although NWP 21 is an available permit authorization vehicle, the Corps is implementing a more involved review by elevating projects that impact ephemeral and intermittent streams to be evaluated under the Individual Permit process, especially when the stream impact could be considered a “valley fill.”

Individual Permits are more expensive to prepare and take longer to issue, largely due to additional regulatory analysis (404(b)1 Analysis) and additional engineering design to minimize impacts and measures to compensate unavoidable impacts. Individual Permits typically require 12 to 18 months to be issued as opposed to Nationwide Permits that are typically issued in one to three months. Individual Permits generally cost about 10 times more than Nationwide Permits, typically ranging from $50,000 to $250,000.

Litigation forced the Corps to more closely evaluate 404 authorizations issued for surface coal mines, especially projects that involved valley fills to dispose of overburden. The Corps and the EPA issued joint guidance related to 404 permitting in their February 2005 MoU. This increased the level of review conducted by the Corps related to valley fills.

NWP 21 was reauthorized in 2007 and is available to permit surface coal mines; however, most projects with even moderate impacts to lesser streams (ephemeral and intermittent) are being authorization as Individual Permits. Individual Permits are more expensive to prepare and take longer (12 to 18 months) to issue and typically cost $50,000 to $250,000

This article was reprinted with permission from Skelly & Loy’s newsletter, Portal to the Mining Industry (Vol. VII, Issue 1). The author, Thomas R. Johnston, Jr., assistant vice president, natural resources, can be reached at 800-892-6532 (E-mail: tjohnston@skellyloy.com). Skelly & Loy provide a myriad of professional engineering and environmental services.