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[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]]

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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.

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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.
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    \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.
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    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
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