Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Notices 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 email. 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 


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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 


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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. 

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 § 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. 

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 


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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 


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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 costbenefit 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 costeffective, 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. 


sroberts on DSKD5P82C1PROD with NOTICES
34316 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Notices 

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 

DEPARTMENT OF EDUCATION 

Notice of Proposed Information 

Collection Requests 

AGENCY: Department of Education. 

SUMMARY: The Director, Information 

Collection Clearance Division, 

Regulatory Information Management 

Services, Office of Management, invites 

comments on the proposed information 

collection requests as required by the 

Paperwork Reduction Act of 1995. 

DATES: Interested persons are invited to 

submit comments on or before 

September 14, 2009. 

SUPPLEMENTARY INFORMATION: Section 

3506 of the Paperwork Reduction Act of 

1995 (44 U.S.C. Chapter 35) requires 

that the Office of Management and 

Budget (OMB) provide interested 

Federal agencies and the public an early 

opportunity to comment on information 

collection requests. OMB may amend or 

waive the requirement for public 

consultation to the extent that public 

participation in the approval process 

would defeat the purpose of the 

information collection, violate State or 

Federal law, or substantially interfere 

with any agency’s ability to perform its 

statutory obligations. The Director, 

Information Collection Clearance 

Division, Regulatory Information 

Management Services, Office of 

Management, publishes that notice 


sroberts on DSKD5P82C1PROD with NOTICES