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 state