[Federal Register Volume 74, Number 134 (Wednesday, July 15, 2009)]
[Notices]
[Pages 34311-34316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16803]
[[Page 34311]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
RIN 0710-ZA04
Proposed Suspension and Modification of Nationwide Permit 21
AGENCY: United States Army Corps of Engineers, Department of Defense.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The U.S. Army Corps of Engineers (Corps) is proposing to take
two actions concerning Nationwide Permit (NWP) 21, which authorizes
discharges of dredged or fill material into waters of the United States
for surface coal mining activities. 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.
In accordance with the suspension and modification procedures
provided in the NWP regulations, public comment is invited, and a
public hearing may be requested. After evaluating all comments
pertaining to the proposed suspension and modification that are
received in response to this notice and any public hearings, the Corps
will publish its decisions concerning the NWP 21 suspension and
modification in the Federal Register. If NWP 21 is suspended, the
suspension would remain in effect until NWP 21 is modified or expires,
or until the suspension is lifted.
DATES: Written comments, including requests for a public hearing, must
be submitted on or before August 14, 2009.
ADDRESSES: You may submit comments, identified by docket number COE-
2009-0032, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CO (Attn: Ms.
Desiree Hann), 441 G Street, NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
We will not accept e-mailed or faxed comments. We will post all
comments on http://www.regulations.gov under docket number COE-2009-
0032.
Instructions: When submitting comments via http://www.regulations.gov, direct your comments to docket number COE-2009-
0032. All comments received will be included in the public docket
without change and may be made available on-line at http://www.regulations.gov, including any personal information provided,
unless the commenter indicates that the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI, or otherwise protected,
through regulations.gov or e-mail. The regulations.gov web site is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you submit an electronic comment by sending a CD-ROM to Corps
Headquarters, we recommend that you submit those comments via overnight
mail to ensure timely receipt. We also recommend that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If we cannot read your comment because
of technical difficulties and cannot contact you for clarification, we
may not be able to consider your comment. Electronic comments should
avoid the use of any special characters, any form of encryption, and be
free of any defects or viruses.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. All documents in
the docket are listed. Although listed in the index, some information
is not publicly available, such as CBI or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Ms. Desiree Hann or Mr. David Olson,
Headquarters, Operations and Regulatory Community of Practice,
Washington, DC. Ms. Hann can be reached at 202-761-4560 and Mr. Olson
can be reached at 202-761-4922.
SUPPLEMENTARY INFORMATION: Nationwide permit (NWP) 21 was first issued
in 1982, pursuant to section 404(e) of the Clean Water Act, to
authorize structures, work, and discharges associated with surface coal
mining activities, provided those activities were authorized by the
Department of the Interior, Office of Surface Mining, or by states with
approved programs under Title V of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). Each time since 1982 that the Corps
reissued its NWPs, it also reissued NWP 21, often with modifications
that were made after considering comments received in response to the
various proposals to reissue that NWP.
The current NWP 21 was published in the March 12, 2007, edition of
the Federal Register (72 FR 11092) after going through public notice
and comment and interagency review. This NWP authorizes ``discharges of
dredged or fill material into waters of the United States associated
with surface coal mining and reclamation operations provided the
activities are already authorized, or are currently being processed as
part of an integrated permit processing procedure, by the Department of
Interior (DOI), Office of Surface Mining (OSM), or by states with
approved programs under Title V of the Surface Mining Control and
Reclamation Act of 1977.'' This NWP is currently scheduled to expire on
March 18, 2012.
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
[[Page 34312]]
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.
On June 11, 2009, the Corps, the U.S. Department of the Interior,
and the U.S. Environmental Protection Agency signed a Memorandum of
Understanding (MOU) for implementing an Interagency Action Plan on
Appalachian surface coal mining. A copy of this MOU is available at:
http://www.usace.army.mil/CECW/Pages/moumoas.aspx. The MOU includes an
Interagency Action Plan (IAP) that was developed to reduce the adverse
environmental impacts of surface coal mining activities in the
Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee,
Virginia, and West Virginia, while assuring that future mining remains
consistent with the Clean Water Act and the Surface Mining Control and
Reclamation Act.
We are using the Appalachian Regional Commission's list of counties
in Appalachia to clarify the geographic area subject to the proposed
suspension and potential modification:
Kentucky: Adair, Bath, Bell, Boyd, Breathitt, Carter, Casey, Clark,
Clay, Clinton, Cumberland, Edmonson, Elliott, Estill, Fleming, Floyd,
Garrard, Green, Greenup, Harlan, Hart, Jackson, Johnson, Knott, Knox,
Laurel, Lawrence, Lee, Leslie, Letcher, Lewis, Lincoln, McCreary,
Madison, Magoffin, Martin, Menifee, Metcalfe, Monroe, Montgomery,
Morgan, Nicholas, Owsley, Perry, Pike, Powell, Pulaski, Robertson,
Rockcastle, Rowan, Russell, Wayne, Whitley, and Wolfe.
Ohio: Adams, Ashtabula, Athens, Belmont, Brown, Carroll, Clermont,
Columbiana, Coshocton, Gallia, Guernsey, Harrison, Highland, Hocking,
Holmes, Jackson, Jefferson, Lawrence, Mahoning, Meigs, Monroe, Morgan,
Muskingum, Noble, Perry, Pike, Ross, Scioto, Trumbull, Tuscarawas,
Vinton, and Washington.
Pennsylvania: Allegheny, Armstrong, Beaver, Bedford, Blair,
Bradford, Butler, Cambria, Cameron, Carbon, Centre, Clarion,
Clearfield, Clinton, Columbia, Crawford, Elk, Erie, Fayette, Forest,
Fulton, Greene, Huntingdon, Indiana, Jefferson, Juniata, Lackawanna,
Lawrence, Luzerne, Lycoming, McKean, Mercer, Mifflin, Monroe, Montour,
Northumberland, Perry, Pike, Potter, Schuylkill, Snyder, Somerset,
Sullivan, Susquehanna, Tioga, Union, Venango, Warren, Washington,
Wayne, Westmoreland, and Wyoming.
Tennessee: Anderson, Bledsoe, Blount, Bradley, Campbell, Cannon,
Carter, Claiborne, Clay, Cocke, Coffee, Cumberland, De Kalb, Fentress,
Franklin, Grainger, Greene, Grundy, Hamblen, Hamilton, Hancock,
Hawkins, Jackson, Jefferson, Johnson, Knox, Lawrence, Lewis, Loudon,
McMinn, Macon, Marion, Meigs, Monroe, Morgan, Overton, Pickett, Polk,
Putnam, Rhea, Roane, Scott, Sequatchie, Sevier, Smith, Sullivan,
Unicoi, Union, Van Buren, Warren, Washington, and White.
Virginia: Alleghany, Bath, Bland, Botetourt, Buchanan, Carroll,
Craig, Dickenson, Floyd, Giles, Grayson, Henry, Highland, Lee,
Montgomery, Patrick, Pulaski, Rockbridge, Russell, Scott, Smyth,
Tazewell, Washington, Wise/Norton, and Wythe.
West Virginia: All counties.
The IAP is intended to provide greater emphasis on protecting the
aquatic and terrestrial environment of the Appalachian region. To
accomplish this, the IAP lists several short-term actions to reduce the
harmful environmental consequences of Appalachian surface coal mining
in these six States, one of which commits the Corps to issue a public
notice proposing to modify NWP 21 to prohibit its use in conjunction
with surface coal mining activities in the Appalachian region of
Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia to
authorize discharges of dredged or fill material into waters of the
United States.
The proposed modification of NWP 21 in accordance with the IAP
would result in surface coal mining activities in the Appalachian
region of these six States being processed as individual permits. 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. This action would also be consistent with a recent
decision of the United States District Court for the Southern District
of West Virginia which directed the Corps to cease processing of NWP 21
PCNs in that District.
To provide more immediate environmental protection while the
comments received in response to the proposal to modify NWP 21 are
being evaluated, the Corps today is also proposing to suspend NWP 21 in
the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee,
Virginia, and West Virginia. After thorough consideration of the
comments received in response to today's proposal to suspend NWP 21, we
will decide whether to issue a ``final'' notice in the Federal Register
suspending NWP 21. Should we decide to suspend, the suspension would
temporarily prohibit the use of NWP 21 to authorize discharges of
dredged or fill material into waters of the United States for surface
coal mining activities in Appalachia, until the Corps makes a final
determination on the modification of NWP 21.
The proposed suspension and modification of NWP 21 actions are
being undertaken to respond to increased concerns regarding how adverse
effects on the aquatic environment and other public interest review
factors relevant to jurisdictional waters of the United States in the
Appalachian region of these six States are being addressed for surface
coal mining activities. The Corps now believes it would be more
appropriate to evaluate these adverse effects through the individual
permit process, with a full public interest review, rather than through
NWP 21. The decision to authorize a particular surface coal mining
activity under NWP 21 is based on an evaluation of not only the
potential individual and cumulative adverse effects of the proposed
activity on the aquatic environment, but also on the potential adverse
effects on Corps' other public interest review factors listed at 33 CFR
320.4(a)(1), such as conservation, aesthetics, economics, land use,
recreation, fish and wildlife values, energy needs, food and fiber
production, and general considerations of property ownership, to the
extent that those public interest factors are relevant to waters of the
United States subject to CWA jurisdiction.
The June 11, 2009, MOU and IAP commit the Corps to reexamine the
appropriateness of using NWP 21 to authorize discharges of dredged or
fill material into waters of the United States for surface coal mining
activities in the Appalachian region of Kentucky, Ohio, Pennsylvania,
Tennessee, Virginia, and West Virginia. We are seeking comment on
whether NWP 21 should be suspended and/or modified in the Appalachian
region of these six States, because of the effects that discharges of
[[Page 34313]]
dredged or fill material into waters of the United States associated
with surface coal mining activities have on the aquatic environment and
other public interest review factors, as they relate to jurisdictional
waters of the United States.
In the Appalachian region of Kentucky, Ohio, Pennsylvania,
Tennessee, Virginia, and West Virginia, NWP 21 has been used to
authorize surface coal mining activities that involve discharges of
dredged or fill material into waters of the United States that have
resulted in adverse environmental impacts that may be more than minimal
on a cumulative basis. For this reason, 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.
Proposed Suspension of NWP 21
The Corps regulations governing the issuance, modification,
suspension, or revocation of NWPs are found at 33 CFR 330.5. According
to those regulations, suspension is a short-term measure for quickly
halting the use of an NWP in response to identified concerns about
impacts to jurisdictional waters of the United States or other public
interest review factors, while modification of an NWP is the long-term
solution for addressing those concerns. The modification of an NWP is a
rulemaking activity that requires the completion of additional tasks,
such as the preparation of NEPA documentation and compliance with the
requirements of the Administrative Procedure Act. According to these
regulations, the Chief of Engineers cannot suspend an NWP until he or
she has issued a notice soliciting public comment, and provided the
opportunity for interested parties to request a public hearing (see 33
CFR 330.5(b)(2)(i)). The purpose of the proposed suspension is to
provide additional protection to the aquatic environment until the
Corps makes its decision on whether to modify NWP 21 or to retain NWP
21 in its current form. If use of NWP 21 is suspended for the
Appalachian region, the suspension would remain in effect until NWP 21
is modified or expires, or until the suspension is lifted. We will
publish our decision regarding the proposed suspension of NWP 21 in the
Federal Register. If we decide to suspend NWP 21, that suspension
cannot occur until the effective date provided in that Federal Register
notice.
Public Hearing
When proposing to suspend an NWP, the NWP regulations require the
Corps to provide the opportunity for interested parties to request a
public hearing (see 33 CFR Sec. 330.5(b)(2)(i)). Requests for a public
hearing must be submitted in writing to the address in the ADDRESSES
section of this notice. Such requests must state the reason(s) for
holding a public hearing. If we determine that a public hearing or
hearings would assist in making a decision on the proposed suspension
or modification of NWP 21, a 30-day advance notice will be published in
the Federal Register to advise interested parties of the date(s) and
location(s) for the public hearing(s). Any announcement of public
hearings would also be posted as supporting material in the docket at
http://www.regulations.gov.
Grandfathering
If NWP 21 is suspended for surface coal mining activities in the
Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee,
Virginia, and West Virginia, those activities that were verified by
district engineers prior to the effective date of the suspension as
being authorized by NWP 21 will continue to be authorized by that NWP,
unless the district engineer takes action to modify, suspend or revoke
a particular NWP authorization on a case-by-case basis in accordance
with the procedures at 33 CFR 330.5(d). If NWP 21 is modified to
prohibit its use to authorize surface coal mining activities in
Appalachian region of those six States, then the ``grandfather''
provision at 33 CFR 330.6(b) would apply, giving each permittee 12
months (from the date the NWP is modified) to complete the authorized
activity, unless the district engineer modifies, suspends, or revokes
the NWP 21 authorization for that particular activity. To qualify for
the grandfather provision at 33 CFR 330.6(b), the activity must have
commenced construction, or be under contract to commence construction,
before the effective date of the modification.
District engineers will continue to process NWP 21 pre-construction
notifications (PCNs) for surface coal mining activities in Kentucky,
Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia until a
notice announcing the suspension decision is published in the Federal
Register, and unless and until a suspension goes into effect.\1\
District engineers will carefully review those NWP 21 PCNs and will
exercise discretionary authority to require an individual permit in
accordance with the procedures at 33 CFR 330.5(d) in cases where the
proposed surface coal mining activity presents the potential for more
than minimal individual and/or cumulative adverse effects on the
aquatic environment or other public interest review factors relevant to
jurisdictional waters of the United States. As part of the review
process for the NWP 21 PCNs, Corps staff will carefully consider any
comments received from the appropriate regional offices of the U.S.
Environmental Protection Agency (EPA), the U.S. Fish and Wildlife
Service (FWS), and appropriate State agencies.
---------------------------------------------------------------------------
\1\ In accordance with the decision of the United States
District Court for the Southern District of West Virginia (Civil
Action No. 3:03-cv-2281), the Corps ceased processing NWP 21 PCNs in
that District on March 31, 2009.
---------------------------------------------------------------------------
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.
It is important to note that NWP 21 differs from most other NWPs in
that it requires district engineers to issue written verifications
before proposed activities are authorized by NWP 21 (see the
``Notification'' provision of NWP 21, as published in the March 12,
2007, issue of the Federal Register (72 FR 11184)). Unless an activity
is authorized by NWP 21 through an NWP verification letter issued by
the district engineer, the grandfathering provision at 33 CFR 330.6(b)
does not apply.
If NWP 21 is suspended for surface coal mining activities in the
Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee,
Virginia, and
[[Page 34314]]
West Virginia, district engineers cannot issue NWP 21 verifications for
those activities or accept NWP 21 PCNs for surface coal mining
activities in the Appalachian region of those six States that are
received after the effective date of the suspension. If the NWP 21
suspension goes into effect, requests for Department of the Army
authorization for these activities will be processed through the
individual permit process. This may require permit applicants to submit
additional information for a complete application for an individual
permit.
Modification of NWP 21
The suspension of an NWP is only a short-term measure for
addressing concerns about the individual and cumulative adverse effects
of surface coal mining activities in the Appalachian region of
Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia,
while we consider the comments received in response to today's proposal
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 Kentucky, Ohio,
Pennsylvania, Tennessee, Virginia, and West Virginia.
The modification of NWP 21 is being proposed to address concerns
about the adverse individual and cumulative effects of surface coal
mining activities on the aquatic environment and other factors of the
public interest relevant to jurisdictional waters in the Appalachian
region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West
Virginia. Evaluating these activities through the individual permit
process will help provide more information for decision making, through
the public notice and comment process. Comments on the proposed
modification are to be submitted in accordance with the procedures
described in the ADDRESSES section, above. The Corps will announce its
decision on whether to modify NWP 21 in a separate Federal Register
notice.
Water Quality Certification
Because the current version of NWP 21 authorizes discharges of
dredged or fill material into waters of the United States for surface
coal mining activities, State or Tribal water quality certification, or
waiver thereof, was required by Section 401 of the Clean Water Act.
However, given the fact that this Federal Register notice proposes to
modify NWP 21 so that it could no longer be used to authorize
discharges of dredged or fill material in the Appalachian region of
Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia,
we believe that it is not necessary to request water quality
certification from those States. Because the proposed modification
would prohibit the use of NWP 21 to authorize surface coal mining
activities only in the Appalachian region of Kentucky, Ohio,
Pennsylvania, Tennessee, Virginia, and West Virginia, we believe it is
not necessary for any state water quality certification agency to
change the water quality certification decision issued in response to
the reissuance of NWP 21 in March 2007. We are seeking comments from
these six States to determine whether it is necessary for the Corps to
request water quality certification for the proposed modification of
NWP 21.
Section 307 of the Coastal Zone Management Act (CZMA)
This Federal Register notice serves as the Corps determination that
the proposed modification of NWP 21 is, to the maximum extent
practicable, consistent with State CZMA programs. States are requested
to agree or disagree with the consistency determination following 33
CFR 330.4(d) for this NWP.
Ordinarily, when the Corps makes a CZMA consistency determination
when the Corps proposes to issue or re-issue an NWP, that determination
only applies to NWP authorizations for activities that are within, or
that can affect, any land, water uses or natural resources of a State's
coastal zone. NWP authorizations for activities that are not within or
would not affect a State's coastal zone do not require a Corps CZMA
consistency determination and thus are not contingent on a State's
agreement with the Corps' consistency determination. Since the proposed
modification of NWP 21 would make that NWP inapplicable to proposed
surface coal mining activities in the Appalachian region of Kentucky,
Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia, the
proposed modification of NWP 21 cannot authorize any activities that
would affect the coastal zones of those States. Moreover, the
geographic area that would be affected by the proposed modification to
NWP 21 lies outside of the coastal zones of Ohio, Pennsylvania, and
Virginia. Consequently, we believe that it is not necessary for these
states to change the CZMA consistency determinations they issued in
response to the reissuance of NWP 21 in March 2007.
Administrative Requirements
Plain Language
In compliance with the principles in the President's Memorandum of
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is
written using plain language. The use of ``we'' in this notice refers
to the Corps. We have also used the active voice, short sentences, and
common everyday terms except for necessary technical terms.
Paperwork Reduction Act
The proposed modification of NWP 21 will not substantially change
paperwork burdens on the regulated public because the requirements for
a complete individual permit application and a complete NWP 21 PCN are
similar.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
For the Corps Regulatory Program under Section 10 of the Rivers and
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the
current OMB approval number for information collection requirements is
maintained by the Corps of Engineers (OMB approval number 0710-0003,
which expires on June 30, 2009).
Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether the regulatory action is ``significant'' and
therefore subject to review by OMB and the requirements of the
Executive Order. The Executive Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, we have determined
that
[[Page 34315]]
the proposed modification of NWP 21 rule is a ``significant regulatory
action'' and the draft notice was submitted to OMB for review.
Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the Corps to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' The proposed modification of NWP 21 does not have
federalism implications. We do not believe that the proposed
modification of NWP 21 will have substantial direct effects on the
States, on the relationship between the Federal government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The proposed modification of NWP 21 will
not impose any additional substantive obligations on State or local
governments. Therefore, Executive Order 13132 does not apply to this
proposal.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the proposed modification
of NWP 21 on small entities, a small entity is defined as: (1) A small
business based on Small Business Administration size standards; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district, or special district with a population of less
than 50,000; or (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of the proposed modification
of NWP 21 on small entities, I certify that this action will not have a
significant impact on a substantial number of small entities. Although
small entities will no longer be able to obtain authorizations for
discharges of fill material associated with surface coal mining
activities in the Appalachian region under NWP 21, they may still
obtain required Department of Army authorizations through individual
permits. The application procedures for individual permits are similar
to those for NWP 21 PCNs. Also, the amount of documentation required to
make surface coal mining permit decisions in the Appalachian region is
comparable for NWP 21 PCNs and individual permits. Extensive
documentation is needed to document minimal adverse effect
determinations for NWP 21 PCNs, which is analogous to the quantity of
information for decision documents that are prepared for individual
permits. Therefore, the proposed modification of NWP 21 will not impose
substantially higher costs on small entities when considered in the
context of total costs of surface coal mining projects generally.
Therefore, there will not be a ``significant'' impact for a substantial
number of small entities.
We are interested in the potential impacts of the proposed
modification of NWP 21 on small entities and welcome comments on issues
related to such impacts.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under Section 202 of the UMRA, the
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating a rule for which a
written statement is needed, Section 205 of the UMRA generally requires
the agencies to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law.
Moreover, section 205 allows an agency to adopt an alternative
other than the least costly, most cost-effective, or least burdensome
alternative if the agency publishes with the final rule an explanation
of why that alternative was not adopted. Before an agency establishes
any regulatory requirements that may significantly or uniquely affect
small governments, including tribal governments, it must have
developed, under Section 203 of the UMRA, a small government agency
plan. The plan must provide for notifying potentially affected small
governments, enabling officials of affected small governments to have
meaningful and timely input in the development of regulatory proposals
with significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
We have determined that the proposed modification of NWP 21 does
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and Tribal governments, in the
aggregate, or the private sector in any one year, because the
requirements for a complete individual permit application and a
complete NWP 21 PCN are similar. Also, comparable amounts of
documentation are needed to make minimal adverse effect determinations
and individual permit decisions for surface coal mining activities
decisions in the Appalachian region. Therefore, this proposal is not
subject to the requirements of Sections 202 and 205 of the UMRA. For
the same reasons, we have determined that the proposed modification of
NWP 21 contains no regulatory requirements that might significantly or
uniquely affect small governments. Therefore, the proposed modification
of NWP 21 is not subject to the requirements of Section 203 of UMRA.
Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that:
(1) Is determined to be ``economically significant'' as defined
under Executive Order 12866, and (2) concerns an environmental health
or safety risk that we have reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, we must evaluate the environmental health or safety
effects of the proposed rule on children, and explain why the
regulation is preferable to other potentially effective and reasonably
feasible alternatives.
The proposed modification of NWP 21 is not subject to this
Executive Order because it is not economically significant as defined
in Executive Order 12866. In addition, the proposed modification of NWP
21 does not concern an environmental or safety risk that we have reason
to believe may have a disproportionate effect on children.
[[Page 34316]]
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' The phrase
``policies that have tribal implications'' is defined in the Executive
Order to include regulations that have ``substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
government and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.''
The proposed modification of NWP 21 does not have tribal implications.
It will not have substantial direct effects on tribal governments, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.
Therefore, Executive Order 13175 does not apply to this proposal.
However, in the spirit of Executive Order 13175, we specifically
request comment from tribal officials on the proposed rule.
Environmental Documentation
A preliminary decision document, which includes a draft
environmental assessment, has been prepared for the proposed
modification of NWP 21. This preliminary decision document is available
at: http://www.regulations.gov (docket ID number COE-2009-0032).
It is also available by contacting Headquarters, U.S. Army Corps of
Engineers, Operations and Regulatory Community of Practice, 441 G
Street, NW., Washington, DC 20314-1000.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. We will submit a report containing the final decision
concerning the modification of NWP 21 and other required information to
the U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States. A major rule cannot take effect until 60
days after it is published in the Federal Register. The proposed
modification of NWP 21 is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Executive Order 12898
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each Federal agency conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
The proposed modification of NWP 21 is not expected to negatively
impact human health or the environment of any community, and therefore
is not expected to cause any disproportionately high and adverse human
health or environmental impacts to minority or low-income communities.
The purpose of the modification is to strengthen environmental
protection for all communities by requiring surface coal mining
projects in the Appalachian region to obtain authorization through
individual permits.
Executive Order 13211
The proposed modification of NWP 21 is not a ``significant energy
action'' as defined in Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001) because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Surface coal mining activities in the Appalachian region of
Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia
that involve discharges of dredged or fill material into waters of the
United States can be authorized by individual permits.
Authority
We are proposing to modify NWP 21 under the authority of Section
404(e) of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the
Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).
For the reasons set out in the preamble, the Corps proposes to
modify Nationwide Permit 21 as follows:
21. Surface Coal Mining Operations. Discharges of dredged or fill
material into waters of the United States associated with surface coal
mining and reclamation operations provided the activities are already
authorized, or are currently being processed as part of an integrated
permit processing procedure, by the Department of Interior (DOI),
Office of Surface Mining (OSM), or by states with approved programs
under Title V of the Surface Mining Control and Reclamation Act of
1977.
This nationwide permit does not authorize surface coal mining
activities in the Appalachian region of Kentucky, Ohio, Pennsylvania,
Tennessee, Virginia, and West Virginia.
Notification: The permittee must submit a pre-construction
notification to the district engineer and receive written authorization
prior to commencing the activity. (See general condition 27.) (Sections
10 and 404)
Dated: July 10, 2009.
Approved By:
Michael G. Ensch,
Chief, Operations, Directorate of Civil Works.
[FR Doc. E9-16803 Filed 7-14-09; 8:45 am]
BILLING CODE 3710-92-P