1 MEMORANDUM OF UNDERSTANDING AMONG THE U.S. DEPARTMENT OF THE ARMY, U.S. DEPARTMENT OF THE INTERIOR,

AND U.S. ENVIRONMENTAL PROTECTION AGENCY

IMPLEMENTING THE INTERAGENCY ACTION PLAN ON APPALACHIAN

SURFACE COAL MINING 1

JUNE 11, 2009

PREAMBLE

The mountains of Appalachia possess unique bi ological diversity, fore sts, and freshwater streams that historically have sustained rich and vibrant American communities. These

mountains also contain some of the nation’s rich est deposits of coal, which have been mined by generations of Americans to provi de heat and electricity to mill ions in the U.S. and around the world. After generations of mining, however, the re gion’s most readily av ailable coal resources have diminished, and the remaining coal se ams are less accessibl e to non-surface mining

methods.

In response, a surface mining technique co mmonly referred to as “mountaintop mining” 2
has become increasingly preval ent in the Appalachian region. Although its scale and efficiency has enabled the mining of once-inaccessible coal seams, this mining practice often stresses the natural environment and impacts the health and welfare of surrounding human communities. Streams once used for swimming, fishing, and dri nking water have been adversely impacted, and groundwater resources used for drinking water have been contaminated. Some forest lands that sustain water quality and habitat and contribut e to the Appalachian way of life have been fragmented or lost. These nega tive impacts are likely to further increase as mines transition to less accessible coal resources within already affected watersheds and communities.

With this Memorandum of Understanding (MOU), the Department of the Interior (DOI), U.S. Environmental Protection Agency (EPA), a nd the U.S. Army Corps of Engineers (Corps)

1 For purposes of this MOU, “Appalachian surface coal mining” refers to mining techniques requiring permits under both the Surface Mining Control and Reclamation Act (SMCRA) and Section 404 of the Clean Water Act (CWA), in the states of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia.

2 The term “mountaintop mining” may also be referred to as “mountaintop removal” or “valley fill mining.”2 are announcing this Interagency Action Plan (IAP) designed to significantly reduce the harmful environmental consequences of Appalachian su rface coal mining operations, while ensuring that future mining remains consistent with federal law. This IAP includes a set of short-term actions to be implemented in 2009 to existing policy and guidance, and a longer term process for gathering public input, assessing the effectiveness of current policy, and developing regulatory

actions.

The Federal government has made a commitment to move America toward a 21 st -century clean energy economy based on the recognition that a sustainable economy and environment must work hand in hand. Federal Agencies will work in coordination with appropr iate regional, state, and local entities to help diversify and strengthen the Appalachian regional economy and promote the health and welfare of Appalachian co mmunities. This interagency effort will have a special focus on stimulating clean enterprise a nd green jobs development, encouraging better coordination among existing federal efforts, and supporting innovative new id eas and initiatives.

Interagency Action Plan

I. COORDINATION ON REGU LATORY PROGRAMS

This MOU formalizes the agencies’ IAP for coordinating the regula tion of Appalachian surface coal mining. The elem ents of the plan are:

 A series of interim actions under existi ng authorities to minimize the adverse environmental consequences of Appalachian surface coal mining;

 A commitment by the agencies to investig ate and, if appropria te, undertake longer term regulatory actions related to Appalachian surface coal mining;

 Coordinated environmental reviews of pe nding permit applications under the Clean Water Act (CWA) and Surface Mining Contro l and Reclamation Act (SMCRA); and

 A commitment to engage in robust pub lic participation, th rough public comment mechanisms and Appalachian public outreac h events, helping to inform Federal, State, and local decisions.

In addition to the steps taken above, the Federal government will help diversify and strengthen the Appalachian regional economy. This effort will include the agencies to this MOU, and other Federal agencies, as appropr iate, and will work to focus clean energy investments and create green jobs in Appalachia.

Coordination of interagency policy discussions and assessment of policy effectiveness will

be achieved in consultation with the Council on Environmental Quality.3 II. SHORT-TERM ACTIONS TO MI NIMIZE ENVIRONMENTAL HARM

The signatory agencies will take the follo wing short-term actions under existing laws, regulations, and other authori ties to reduce the harmful environmental consequences of Appalachian surface coal mining.

Before the end of 2009, the Corps and EPA will take the following steps:

 Within 30 days of the date of this MOU, the Corps will issue a public notice pursuant to 33 C.F.R. § 330.5 proposing to modify Nationwide Permit (NWP) 21 to preclude

its use to authorize the discha rge of fill material into streams for surface coal mining activities in the Appalachian region, and will seek public comment on the proposed

action.

 EPA and the Corps, in coordination with DOI’s Fish and Wildlife Service (FWS), will jointly develop guidance to strengthe n the environmental review of proposed surface coal mining projects in Appal achia under the CWA Section 404(b)(1)

Guidelines.

 Recognizing that the regulation of surf ace coal mining extends beyond CWA Section 404, EPA will improve and strengthen overs ight and review of water pollution permits for discharges from valley fills under CWA Section 402, and of state water quality certifications under CWA Section 401, by taking appropriate steps to assist the States to strengthen state regulati on, enforcement, and permitting of surface mining operations under these programs.

 The Corps and EPA, in coordination with FWS and consistent with the agencies’ regulations governing compensatory mitigati on, will jointly issue guidance clarifying how impacts to streams should be evaluate d and how to evaluate proposed mitigation projects to improve the ecological perfor mance of such mitigation implemented to compensate for losses of waters of the United States authorized by Section 404 permits.

 EPA, in coordination with the Corps, will clarify the applicability of the CWA waste treatment exemption for treatment facilities constructed in waters of the United States in order to minimize the temporary im pacts of mining operations on streams.

Before the end of 2009, DOI w ill take the following steps:

 If the 2008 Stream Buffer Zone Rule is vacated by the U.S. District Court for the

District of Columbia in Coal River M ountain Watch et al v. Kempthorne, 1:08-cv02212-HHK C, as requested by the Secretary of the Interior on April 27, 2009, the Office of Surface Mining Reclamation a nd Enforcement (OSM) will issue guidance clarifying the applicat ion of the 1983 stream buffer zone provisions to further reduce adverse stream impacts.

 OSM will reevaluate and determine how it w ill more effectively conduct oversight of State permitting, State enforcement, and regulatory activities under SMCRA.

 OSM will remove impediments to its ability to require correction of permit defects in SMCRA primacy states.4 III. DEVELOPMENT OF LONGER TERM REGULATORY ACTIONS TO BETTER

MANAGE APPALACHIAN SU RFACE COAL MINING

A. OBJECTIVES

The signatory agencies will review their existing regulatory authorities and procedures to determine whether regulato ry modifications should be proposed to better protect the environment and public health from the impacts of Appalachian surface coal mining. At a minimum, the agencies will consider:

 Revisions to key provisions of curre nt SMCRA regulations, including the Stream Buffer Zone Rule and Appr oximate Original Contour (AOC) requirements;

 Eliminating use of Nationwide Permit 21 in connection with surface coal mining in the Appalachian region when the Nationwide Permit Program is reauthorized in 2012; and

 Revisions to how surface coal mining ac tivities are evaluated, authorized, and regulated under the CWA.

B. PROCESS

The signatory agencies will create an inte ragency working group to coordinate the development of short-term actions, longer term regulatory acti ons, and coordination procedures for Appalachian surface coal mining. The group will ensure robust public involvement in the development of any pr oposed actions or regulatory reforms.

For any proposed regulatory revision or ot her action under this MOU that is a major federal action significantly affecting the quali ty of the human environment (and is an action subject to NEPA), an Environmental Impact Statement (EIS) will be prepared to inform the decision-making process. At an early stage in the interagency coordination process, the working group w ill determine whether coordinating these NEPA processes programmatically would more effectively guide regulatory development and decision-making. The in teragency group will coordinate with CEQ regarding the implementation of the Nati onal Environmental Policy Act (NEPA) in the development of regulatory reforms.

IV. INTERIM INTERAGENCY COORDINATION PROCEDURES

A. Clean Water Act

EPA and the Corps will begin immediatel y to implement enhanced coordination procedures applicable to the Clean Water Act review of Section 404 permit applications for Appalachian surface coal mining activities that have been submitted prior to execution of this MOU. The goal of these procedures is to ensure more timely, consistent, transparent, and envi ronmentally effective review of permit applications under existing law and regulat ions. The agencies are issuing these5 enhanced joint procedures concurrently with this MOU. Also concurrently, EPA is clarifying the factual considerations it is using to evaluate pending CWA permit applications under the 404(b)(1) Guidelines.

Pending Clean Water Act Section 404 perm it applications for Appalachian surface coal mining activities will continue to be evaluated by the Corps and EPA on a caseby-case basis. The agencies will focus th eir reviews of Appalachian surface coal mining permit applications based on likely environmental impacts with the goal of avoiding, minimizing, and mitigating such imp acts to the extent practicable under the CWA Section 404(b)(1) Gu idelines and consistent with NEPA. This approach will enable the continued permitting of e nvironmentally responsible projects.

B. Surface Mining Control and Reclamation Act

During 2009, OSM will issue guidance concerning appropriate application of the

Stream Buffer Zone rule and other relate d rules and will ensure that states are implementing their counterpart provis ions and SMCRA regulatory programs consistent with the guidance.

V. PUBLIC INVOLVEMENT

This IAP will be accompanied by robust publ ic comment on its short- and longer termactions. The agencies will hold public meetings in Appalachia during 2009 to gather on-theground input and encourage ongoing local engage ment in the environmental assessment and decision-making process. Additional public par ticipation will occur as agency actions move

forward.

VI. GENERAL

A. The policy and procedures contained within this MOU are intended solely as guidance and do not create any rights, substantive or pr ocedural, enforceable by any party. This MOU does not constitute final agency action on any issue, and any actions contemplated by this MOU will be carried out in an appropriate administrative process by the action agency in accordance with all applicab le laws and regulations.

B. This document does not, and is not intende d to, impose any legally binding requirements on Federal agencies, States, or th e regulated public, and does not restrict the authority of the employees of the signatory agencies to exercise their discretion in each case to make regulatory decisions based on their judgment about the specific fact s and application of relevant statutes and regulations.

C. Nothing in this MOU is intended to dimini sh, modify, or otherwis e affect statutory or regulatory authorities of any of the signatory agencies. All formal guidance interpreting this6 MOU and background materials upon which this MOU is based will be issued jointly by the appropriate agencies.

D. Nothing in this MOU will be construed as indicating a financial commitment by DOI, the Corps, EPA, or any cooperating State agency for the expenditure of funds except as authorized in specific appropriations.

E. This MOU will take effect on the date s hown above and will continue in effect until permanent procedures are established, or unless earlier modified or revoked by agreement of all signatory agencies. Modificat ions to this MOU may be made by mutual agreement of all the signatory agencies. Modifications to the MOU must be made in writing.

Signed,

_________________________________ _________________________________ Lisa P. Jackson Ken Salazar Administrator Secretary U.S. Environmental Protection Agency U.S. Department of the Interior

_________________________________ Terrence “Rock” Salt Acting Assistant Secretary of the Army (Civil Works) U.S. Department of the Army