Suspension of Nationwide Permit 21, 34711-34714 [2010-14778]

Download as PDF Federal Register / Vol. 75, No. 117 / Friday, June 18, 2010 / Notices (3) Private organizations (including educational institutions) and individuals for authorized health research in the interest of the Federal government and the public. When not considered mandatory, patient identification data shall be eliminated from records used for research studies. (4) Officials and employees of the National Research Council in cooperative studies of the National History of Disease of prognosis and of epidemiology. Each study in which the records of members and former members of the Air Force are used must be approved by the Surgeon General of the Air Force. (5) Officials and employees of local and state governments and agencies in the performance of their official duties pursuant to the laws and regulations governing local control of communicable diseases, preventive medicine and safety programs, child abuse and other public health and welfare programs. (6) Authorized surveying bodies for professional certification and accreditations. (7) The individual’s organization or government agency as necessary when required by Federal statute, Executive Order or by treaty. The DoD ‘‘Blanket Routine Uses’’ published at the beginning of the Air Force’s compilation of record system notices apply to this system, except as stipulated in ‘Notes’ below. srobinson on DSKHWCL6B1PROD with NOTICES NOTE: Records of identity, diagnosis, prognosis or treatment of any client/patient, irrespective of whether or when he/she ceases to be a client/patient, maintained in connection with the performance of any alcohol/drug abuse treatment function conducted, requested, or directly or indirectly assisted by any department or agency of the United States, shall, except as provided herein, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized in 42 U.S.C. 290dd–2. These statutes take precedence over the Privacy Act of 1974 in regard to accessibility of such records except to the individual to whom the record pertains. The DoD ‘Blanket Routine Uses’ do not apply to these types of records. Note: This system of records contains individually identifiable health information. The DoD Health Information Privacy Regulation (DoD 6025.18–R) issued pursuant to the Health Insurance Portability and Accountability Act of 1996, applies to most such health information. DoD 6025.18–R may place additional procedural requirements on the uses and disclosures of such information beyond those found in the Privacy Act of 1974 or mentioned in this system of records notice. VerDate Mar<15>2010 16:17 Jun 17, 2010 Jkt 220001 POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: Paper records and electronic storage media. RETRIEVABILITY: By name, Social Security Number (SSN), or by Military Service Number. SAFEGUARDS: Records are accessed by commanders of medical centers, hospitals and clinics; by custodian of the record system; and by person(s) responsible for servicing the record system in performance of their official duties and by authorized personnel who are properly screened and cleared by needto-know. Records are stored in locked rooms and cabinets, and access to automated records is controlled and limited. RETENTION AND DISPOSAL: While on active duty, the Health Record of a U.S. military member is maintained at the medical unit at which the person receives treatment. On separation or retirement, records are forwarded to the Department of Veterans Affairs, Records Management Center in St. Louis, MO or to the appropriate Veterans Affairs Regional Office if a Veterans Affairs claim has been filed. Records of non-active duty personnel are mailed to the next military medical facility at which treatment will be received or the records are retained at the treating facility until 2 years after the end of the calendar year of the last date of treatment and then retired to the National Personnel Record Center (NPRC) or other designated depository, such as, but not limited to, Medical Director, American Red Cross, Washington, DC 20006 for Red Cross personnel. At NPRC all inpatient, outpatient, and APV records are retained for 50 years after date of last document. In addition, military records sent to the DVA after 1 May 1994 are maintained for 50 years after date of last document. The Surgeon General, Headquarters United States Air Force. Chief of Air Force Reserve, Headquarters United States Air Force. Director of Air National Guard, Headquarters United States Air Force. Commanders of medical centers, hospitals, clinics, medical aid stations: Commander, Air Force Personnel Center. Official mailing addresses are Fmt 4703 Sfmt 4703 Individuals seeking to determine whether this system of records contains information about themselves should address inquiries to or visit the system manager. Official mailing addresses are published as an appendix to the Air Force’s compilation of record systems notices. Requester must submit full name, Social Security Number (SSN) (or Military Service Number) through whom eligibility for care is established: date (at least year) treatment was provided; name of facility providing treatment; and whether treatment was as inpatient or outpatient. RECORD ACCESS PROCEDURES: Individuals seeking access to records about themselves contained in this system should address requests to the system manager. Official mailing addresses are published as an appendix to the Air Force’s compilation of systems notices. Requester must submit full name, Social Security Number (SSN) (or Military Service Number) through whom eligibility for care is established: date (at least year) treatment was provided; name of facility providing treatment; and whether treatment was as inpatient or outpatient. CONTESTING RECORD PROCEDURES: The Air Force rules for accessing records and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 37–132; 32 CFR part 1806b; or may be obtained from the system manager. RECORD SOURCE CATEGORIES: Physicians and other patient care providers such as nurses, dietitians, and physicians assistants. Administrative forms are completed by appropriate military or civilian officials. EXEMPTIONS CLAIMED FOR THE SYSTEM: None. [FR Doc. 2010–14712 Filed 6–17–10; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF DEFENSE SYSTEM MANAGER(S) AND ADDRESS: Frm 00029 published as an appendix to the Air Force’s compilation of system notices. NOTIFICATION PROCEDURE: STORAGE: PO 00000 34711 Department of the Army, Corps of Engineers ZRIN 0710–ZA04 Suspension of Nationwide Permit 21 AGENCY: United States Army Corps of Engineers, Department of Defense. ACTION: Notice. E:\FR\FM\18JNN1.SGM 18JNN1 srobinson on DSKHWCL6B1PROD with NOTICES 34712 Federal Register / Vol. 75, No. 117 / Friday, June 18, 2010 / Notices SUMMARY: The U.S. Army Corps of Engineers (Corps) is immediately suspending Nationwide Permit (NWP) 21, which authorizes 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. This suspension is an interim measure to protect the aquatic environment while we evaluate modification of NWP 21 or until NWP 21 expires in 2012. While the suspension is in effect, individuals who seek authorization for discharges of dredged or fill material into waters of the United States for surface coal mining projects in the affected region will have to obtain Department of the Army authorization under the Clean Water Act (CWA), through the individual permit process. Individual permits will result in increased public involvement in the permit evaluation process, including an opportunity for public comment on individual projects. NWP 21 activities that have been verified by District Engineers prior to the effective date of this suspension in the affected region continue to be authorized by that NWP until it expires on March 18, 2012, unless the District Engineer takes action to modify, suspend or revoke a particular NWP authorization on a caseby-case basis in accordance with the procedures at 33 CFR 330.5(d). District engineers may not modify previously issued NWP 21 verifications in this region to authorize additional discharges of dredged or fill material into waters of the United States; such discharges must be applied for and evaluated under the individual permit process. This suspension of NWP 21 does not apply to other regions of the United States. The suspension will remain in effect until the Corps takes further action on NWP 21 or until NWP 21 expires on March 18, 2012. The Corps will publish its decision concerning the proposed NWP 21 modification in a future Federal Register notice. DATES: The effective date of the suspension of NWP 21 in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia is June 18, 2010. ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW–CO (Attn: Ms. Desiree Hann), 441 G Street, NW., Washington, DC 20314–1000. FOR FURTHER INFORMATION CONTACT: Ms. Desiree Hann, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202–761–4560. SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 16:17 Jun 17, 2010 Jkt 220001 Background On June 11, 2009, the Army, the U.S. Department of the Interior, and the U.S. Environmental Protection Agency signed a Memorandum of Understanding (MOU) that addresses actions to strengthen the environmental review of 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 ensuring that future mining remains consistent with the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act. One of the action items in the MOU was for the Corps to issue a public notice proposing to modify NWP 21, which authorizes discharges of dredged or fill material into waters of the United States for surface coal mining activities, to preclude its use to authorize the discharge of fill material into streams and other waters of the United States for surface coal mining activities in the Appalachian region of those six states, and to seek public comment on the proposed action. In accordance with the Corps regulations for implementing the Nationwide Permit Program, an interested party may request that the Corps consider changes to existing NWPs, including modification or revocation of any of those NWPs, at any time (see 33 CFR 330.5(b)(1)). Based upon the concerns expressed in the June 11, 2009 MOU and its IAP about the potential for more than minimal individual and cumulative environmental effects of surface coal mining activities in certain states in Appalachia, the Corps agreed to seek public comment on a proposal to modify and suspend NWP 21 in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. That proposal was published in the July 15, 2009, issue of the Federal Register (75 FR 34311). All 38 Corps districts also published local public notices to inform citizens of the proposal and their opportunity to provide comments or request public hearings. Impacts to waters of the United States that typically occur in association with surface coal mining activities include valley fill construction activities (e.g., the placement of rock and soil into headwater streams and their valleys), PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 sediment pond construction, road construction, and slurry impoundment construction. Activities authorized by NWP 21 have impacted thousands of linear feet of ephemeral, intermittent, and perennial streams at numerous mine sites across the region. Compensatory mitigation has been required to ensure NWP 21 activities result in only minimal individual and cumulative adverse environmental effects. This mitigation must be successfully implemented to adequately offset the unavoidable impacts to waters authorized by NWP 21. Since 2002, the Corps has collected information with respect to the technical challenges associated with mitigation required for surface coal mine permits issued in Appalachia. Based on this information, and based on the 2008 mitigation rule, which emphasizes the importance of selecting mitigation sites based on their likelihood to be ecologically successful, we better understand how site selection and project design criteria could be improved to provide ecologically successful compensation to offset unavoidable losses of jurisdictional waters associated with surface coal mining projects. The July 15, 2009, proposal involved two actions concerning NWP 21. First, the Corps proposed 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 until it expires on March 18, 2012. Second, the Corps proposed to suspend NWP 21, and to require individual permit reviews in the Appalachian region of these states, until it completes the longer term process of deciding whether to modify NWP 21. The suspension of NWP 21 in these states would provide enhanced protection of aquatic resources while the Corps evaluates the proposal to modify NWP 21 by requiring surface coal mining projects in the affected region to obtain individual permits under the CWA, which would include increased public involvement in the permit review process, and an opportunity for public comment on individual projects. The Corps regulations governing the issuance, modification, suspension, or revocation of NWPs are found at 33 CFR 330.5. As described in those regulations, suspension is a measure for halting the use of an NWP in the short-term in response to identified concerns about impacts to waters of the United States or other public interest review factors, while modification of an NWP is the E:\FR\FM\18JNN1.SGM 18JNN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 117 / Friday, June 18, 2010 / Notices long-term solution for addressing those concerns. The suspension will provide additional protection to the aquatic environment until the Corps makes its decision on the future of NWP 21. In accordance with the suspension and modification procedures provided in the NWP regulations, the Corps invited public comment, as well as an opportunity to request public hearings. The initial comment period was extended from August 14, 2009 to September 14, 2009 (see 74 FR 40815). In response to requests received from a number of interested parties, the Corps held public hearings in each of the six states proposed to be affected by the suspension and modification of NWP 21. The public hearings were announced in the September 10, 2009, issue of the Federal Register (74 FR 46582) and the comment period was extended again to October 26, 2009, to allow written comments to be submitted to supplement the hearing records. In response to the July 15, 2009, Federal Register notice, the Corps received approximately 23,000 written comments, of which approximately 950 were non-form letters expressing support for the suspension of NWP 21 and approximately 750 were non-form letters expressing opposition to the suspension of NWP 21. Comments may be viewed at http://www.regulations.gov under docket number COE–2009–0032. Duplicate comments are not posted in the regulations.gov docket. The public hearings were held in the following cities on October 13–15, 2009: Charleston, West Virginia; Cambridge, Ohio; Pikeville, Kentucky; Knoxville, Tennessee; Pittsburgh, Pennsylvania; and Big Stone Gap, Virginia. Approximately 400 people provided oral testimony at these public hearings, with approximately two-thirds of the testimony in opposition to the proposed action of suspension and one-third in support of the proposed suspension. In response to the Federal Register notice and oral testimony collected at the public hearings, approximately 16,500 commenters expressed support for the proposed suspension and 6,500 objected to the proposed suspension. Most of the commenters supporting the proposed suspension stated that NWP 21 activities have resulted in more than minimal individual and cumulative adverse effects on the aquatic environment, and commented on other public interest review factors. Commenters opposing the proposed suspension said that the current rules governing implementation of NWP 21, including the pre-construction notification (PCN) requirement and stringent review process, provide the VerDate Mar<15>2010 16:17 Jun 17, 2010 Jkt 220001 Corps with the authority to exercise discretionary authority and require an individual permit if the impacts on the aquatic environment will be more than minimal on an individual or cumulative basis, or if warranted by other public interest review factors. A more detailed summary of the comments is provided in the decision document for the suspension of NWP 21, which is available at the Corps Headquarters ‘‘National Notices and Program Initiatives’’ page at: http:// www.usace.army.mil/CECW/Pages/ nnpi.aspx and the regulations.gov Web site under docket number COE–2009– 0032. The same commenters also provided comments on the proposed modification of NWP 21, but those comments will be summarized and addressed in a separate document at a later time. Suspension of NWP 21 To make a decision on the proposed suspension, the Corps considered comments, established decision criteria, and evaluated alternatives. This evaluation is provided in the decision memorandum referenced above. The Corps has concerns that continued use of this permit in the Appalachian region of these six states may result in more than minimal individual and cumulative adverse effects to aquatic resources. Under Section 404(e) of the CWA, only those activities that result in no more than minimal individual and cumulative adverse effects to the aquatic environment may be authorized under a NWP. Activities resulting in more than minimal individual and cumulative impacts to the aquatic environment cannot be authorized by NWPs or other general permits. We have determined that suspension of this permit in the Appalachian region of these six states is necessary to ensure that the Corps evaluates these complex activities, through the individual permit process, while it considers whether to modify NWP 21. NWP 21 is suspended in the following counties of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia: 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. PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 34713 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 above list of counties is based on the Appalachian Regional Commission’s list of counties in Appalachia. This suspension of NWP 21 goes into effect on June 18, 2010. The suspension temporarily prohibits 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 these Appalachian counties, until the Corps makes a final determination on the proposed modification of NWP 21 or until NWP 21 expires in March 2012. In light of the suspension, project proponents for surface coal mining activities involving discharges of dredged or fill material into waters of the United States will have to obtain Department of the Army authorization under the Clean Water Act, through the individual permit process. Using the individual permit process for those activities will provide more information for the Corps to consider in making decisions on these permit E:\FR\FM\18JNN1.SGM 18JNN1 34714 Federal Register / Vol. 75, No. 117 / Friday, June 18, 2010 / Notices srobinson on DSKHWCL6B1PROD with NOTICES applications because of increased public involvement, such as the opportunity to comment on public notices for individual surface coal mining activities in Appalachia. This additional information could help improve not only the Corps analysis of potential individual and cumulative adverse effects of the proposed activity on the aquatic environment, but also on the potential adverse effects on 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, 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 and within the Corps Federal control and responsibility. Concurrent with this Federal Register notice, all Corps districts will issue local public notices announcing the suspension of NWP 21 as of the effective date identified above. Grandfathering of Existing NWP 21 Authorizations Today’s action prohibits District Engineers from issuing NWP 21 verifications in response to PCNs for surface coal mining activities in the Appalachian counties listed above during the period of suspension. In other words, District Engineers cannot continue to process NWP 21 PCNs that are pending as of June 18, 2010 or accept new or revised NWP 21 PCNs for surface coal mining activities in the Appalachian region of those six states unless the suspension is lifted and NWP 21 is reinstated in this region. Proponents of proposed surface coal mining activities in the Appalachian region of these six states will have to submit applications for individual permits instead of NWP 21 PCNs. NWP 21 activities that have been verified by District Engineers prior to June 18, 2010 in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia, continue to be authorized by that NWP until it expires on March 18, 2012, unless the District Engineer takes action to modify, suspend or revoke a particular NWP authorization on a caseby-case basis in accordance with the procedures at 33 CFR § 330.5(d). District engineers may not modify previously issued NWP 21 verifications to authorize additional discharges of dredged or fill material into waters of the United States in the affected Appalachian counties; such discharges must be applied for and evaluated under the individual permit process. VerDate Mar<15>2010 16:17 Jun 17, 2010 Jkt 220001 Environmental Documentation The decision document for the suspension of NWP 21 is available at the Corps Headquarters ‘‘National Notices and Program Initiatives’’ page at: http://www.usace.army.mil/CECW/ Pages/nnpi.aspx and the regulations.gov Web site under docket 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. Authority We are suspending 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.). Dated: June 8, 2010. Approved by: R.L. Van Antwerp, Lieutenant General, U.S. Army, Commanding. [FR Doc. 2010–14778 Filed 6–17–10; 8:45 am] BILLING CODE 3720–58–P DEPARTMENT OF DEFENSE Department of the Army Updated Record of Decision (ROD) for Revised Army Growth and Force; Structure Realignment Decisions Department of the Army, DoD. Notice of availability (NOA). AGENCY: ACTION: SUMMARY: The Department of the Army announces the availability of an updated ROD for Army Growth and Force Structure Realignment. This ROD explains that the Army has modified previous decisions made in December 2007 to support Army growth and force structure realignment. The Army’s decision at the time grew the Army by six Infantry Brigade Combat Teams (IBCTs), eight active component support brigades, and associated growth in smaller combat support and combat service support units required to complement the U.S. Army’s overall force structure growth. The decision also relocated two Heavy Brigade Combat Teams (HBCTs) from Europe to the continental United States. This updated ROD details how the Army has modified growth and realignment decisions to better meet operational mission requirements. Specifically, the original decision is being modified by this updated ROD in the following ways: • Army growth is stopped at 45 active component BCTs instead of 48; PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 • One IBCT has been established as the 43rd BCT at Fort Carson, CO; • The 44th BCT has been activated at Fort Bliss, TX; and • The 45th BCT was established at Fort Stewart, GA, as an IBCT. • The Army will not stand up new growth IBCTs at Fort Bliss, TX; Fort Stewart, GA; or Fort Carson, CO in 2011 as was originally announced in the 2007 ROD. In place of these BCTs, the Army will establish additional combat support units at locations across the Army to better meet mission requirements and man units for upcoming deployments. • The Army will convert a Heavy Brigade Combat Team (HBCT) (the 1st Brigade of the 1st Armored Division (1⁄1 AD)) to a Stryker Brigade Combat Team (SBCT) beginning in 2011 at Fort Bliss, TX. This conversion involves the stationing of approximately 450 additional Soldiers and their equipment at Fort Bliss. • An HBCT will no longer be returning from Germany to White Sands Missile Range in fiscal year 2013. The stationing of HBCTs currently assigned to Germany will be reassessed in light of the Army’s global mission requirements. These modifications to the original Grow the Army decision will better allow the Army to respond to security threats in an unpredictable global security environment. ADDRESSES: A request for copy of the ROD can be sent to the Public Affairs Office, U.S. Army Environmental Command, Building E4460, Attention: IMAE–PA, 5179 Hoadley Road, Aberdeen Proving Ground, MD 21010– 5401. FOR FURTHER INFORMATION CONTACT: LTC David Patterson, Media Relations Division, Office of the Chief of Public Affairs, at (703) 697–7592. SUPPLEMENTARY INFORMATION: In January 2007, the President asked Congress for authority to increase the overall strength of the Army by 74,200 Soldiers over the next five years. This growth was intended to mitigate shortages in units, Soldiers, and time to train that would otherwise inhibit the Army from meeting readiness goals and supporting strategic requirements. The Department of the Army prepared a Programmatic Environmental Impact Statement (PEIS) that evaluated the potential environmental and socioeconomic effects associated with alternatives for Army growth and realignment. In the Final PEIS (published on October 26, 2007), the Army identified Alternative 3 as the preferred alternative. Alternative 3 (adds combat support and combat service support units, as well as Army E:\FR\FM\18JNN1.SGM 18JNN1

Agencies

[Federal Register Volume 75, Number 117 (Friday, June 18, 2010)]
[Notices]
[Pages 34711-34714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14778]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

ZRIN 0710-ZA04


Suspension of Nationwide Permit 21

AGENCY: United States Army Corps of Engineers, Department of Defense.

ACTION: Notice.

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[[Page 34712]]

SUMMARY: The U.S. Army Corps of Engineers (Corps) is immediately 
suspending Nationwide Permit (NWP) 21, which authorizes 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. This suspension 
is an interim measure to protect the aquatic environment while we 
evaluate modification of NWP 21 or until NWP 21 expires in 2012. While 
the suspension is in effect, individuals who seek authorization for 
discharges of dredged or fill material into waters of the United States 
for surface coal mining projects in the affected region will have to 
obtain Department of the Army authorization under the Clean Water Act 
(CWA), through the individual permit process. Individual permits will 
result in increased public involvement in the permit evaluation 
process, including an opportunity for public comment on individual 
projects. NWP 21 activities that have been verified by District 
Engineers prior to the effective date of this suspension in the 
affected region continue to be authorized by that NWP until it expires 
on March 18, 2012, 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). District 
engineers may not modify previously issued NWP 21 verifications in this 
region to authorize additional discharges of dredged or fill material 
into waters of the United States; such discharges must be applied for 
and evaluated under the individual permit process. This suspension of 
NWP 21 does not apply to other regions of the United States. The 
suspension will remain in effect until the Corps takes further action 
on NWP 21 or until NWP 21 expires on March 18, 2012. The Corps will 
publish its decision concerning the proposed NWP 21 modification in a 
future Federal Register notice.

DATES: The effective date of the suspension of NWP 21 in the 
Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, 
Virginia, and West Virginia is June 18, 2010.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO (Attn: Ms. 
Desiree Hann), 441 G Street, NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Ms. Desiree Hann, Headquarters, 
Operations and Regulatory Community of Practice, Washington, DC at 202-
761-4560.

SUPPLEMENTARY INFORMATION: 

Background

    On June 11, 2009, the Army, the U.S. Department of the Interior, 
and the U.S. Environmental Protection Agency signed a Memorandum of 
Understanding (MOU) that addresses actions to strengthen the 
environmental review of 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 ensuring that future 
mining remains consistent with the Clean Water Act (CWA) and the 
Surface Mining Control and Reclamation Act. One of the action items in 
the MOU was for the Corps to issue a public notice proposing to modify 
NWP 21, which authorizes discharges of dredged or fill material into 
waters of the United States for surface coal mining activities, to 
preclude its use to authorize the discharge of fill material into 
streams and other waters of the United States for surface coal mining 
activities in the Appalachian region of those six states, and to seek 
public comment on the proposed action.
    In accordance with the Corps regulations for implementing the 
Nationwide Permit Program, an interested party may request that the 
Corps consider changes to existing NWPs, including modification or 
revocation of any of those NWPs, at any time (see 33 CFR 330.5(b)(1)). 
Based upon the concerns expressed in the June 11, 2009 MOU and its IAP 
about the potential for more than minimal individual and cumulative 
environmental effects of surface coal mining activities in certain 
states in Appalachia, the Corps agreed to seek public comment on a 
proposal to modify and suspend NWP 21 in the Appalachian region of 
Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. 
That proposal was published in the July 15, 2009, issue of the Federal 
Register (75 FR 34311). All 38 Corps districts also published local 
public notices to inform citizens of the proposal and their opportunity 
to provide comments or request public hearings.
    Impacts to waters of the United States that typically occur in 
association with surface coal mining activities include valley fill 
construction activities (e.g., the placement of rock and soil into 
headwater streams and their valleys), sediment pond construction, road 
construction, and slurry impoundment construction. Activities 
authorized by NWP 21 have impacted thousands of linear feet of 
ephemeral, intermittent, and perennial streams at numerous mine sites 
across the region. Compensatory mitigation has been required to ensure 
NWP 21 activities result in only minimal individual and cumulative 
adverse environmental effects. This mitigation must be successfully 
implemented to adequately offset the unavoidable impacts to waters 
authorized by NWP 21. Since 2002, the Corps has collected information 
with respect to the technical challenges associated with mitigation 
required for surface coal mine permits issued in Appalachia. Based on 
this information, and based on the 2008 mitigation rule, which 
emphasizes the importance of selecting mitigation sites based on their 
likelihood to be ecologically successful, we better understand how site 
selection and project design criteria could be improved to provide 
ecologically successful compensation to offset unavoidable losses of 
jurisdictional waters associated with surface coal mining projects.
    The July 15, 2009, proposal involved two actions concerning NWP 21. 
First, the Corps proposed 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 until it expires on March 18, 2012. Second, the Corps proposed 
to suspend NWP 21, and to require individual permit reviews in the 
Appalachian region of these states, until it completes the longer term 
process of deciding whether to modify NWP 21. The suspension of NWP 21 
in these states would provide enhanced protection of aquatic resources 
while the Corps evaluates the proposal to modify NWP 21 by requiring 
surface coal mining projects in the affected region to obtain 
individual permits under the CWA, which would include increased public 
involvement in the permit review process, and an opportunity for public 
comment on individual projects.
    The Corps regulations governing the issuance, modification, 
suspension, or revocation of NWPs are found at 33 CFR 330.5. As 
described in those regulations, suspension is a measure for halting the 
use of an NWP in the short-term in response to identified concerns 
about impacts to waters of the United States or other public interest 
review factors, while modification of an NWP is the

[[Page 34713]]

long-term solution for addressing those concerns. The suspension will 
provide additional protection to the aquatic environment until the 
Corps makes its decision on the future of NWP 21.
    In accordance with the suspension and modification procedures 
provided in the NWP regulations, the Corps invited public comment, as 
well as an opportunity to request public hearings. The initial comment 
period was extended from August 14, 2009 to September 14, 2009 (see 74 
FR 40815). In response to requests received from a number of interested 
parties, the Corps held public hearings in each of the six states 
proposed to be affected by the suspension and modification of NWP 21. 
The public hearings were announced in the September 10, 2009, issue of 
the Federal Register (74 FR 46582) and the comment period was extended 
again to October 26, 2009, to allow written comments to be submitted to 
supplement the hearing records.
    In response to the July 15, 2009, Federal Register notice, the 
Corps received approximately 23,000 written comments, of which 
approximately 950 were non-form letters expressing support for the 
suspension of NWP 21 and approximately 750 were non-form letters 
expressing opposition to the suspension of NWP 21. Comments may be 
viewed at http://www.regulations.gov under docket number COE-2009-0032. 
Duplicate comments are not posted in the regulations.gov docket.
    The public hearings were held in the following cities on October 
13-15, 2009: Charleston, West Virginia; Cambridge, Ohio; Pikeville, 
Kentucky; Knoxville, Tennessee; Pittsburgh, Pennsylvania; and Big Stone 
Gap, Virginia. Approximately 400 people provided oral testimony at 
these public hearings, with approximately two-thirds of the testimony 
in opposition to the proposed action of suspension and one-third in 
support of the proposed suspension.
    In response to the Federal Register notice and oral testimony 
collected at the public hearings, approximately 16,500 commenters 
expressed support for the proposed suspension and 6,500 objected to the 
proposed suspension. Most of the commenters supporting the proposed 
suspension stated that NWP 21 activities have resulted in more than 
minimal individual and cumulative adverse effects on the aquatic 
environment, and commented on other public interest review factors. 
Commenters opposing the proposed suspension said that the current rules 
governing implementation of NWP 21, including the pre-construction 
notification (PCN) requirement and stringent review process, provide 
the Corps with the authority to exercise discretionary authority and 
require an individual permit if the impacts on the aquatic environment 
will be more than minimal on an individual or cumulative basis, or if 
warranted by other public interest review factors. A more detailed 
summary of the comments is provided in the decision document for the 
suspension of NWP 21, which is available at the Corps Headquarters 
``National Notices and Program Initiatives'' page at: http://www.usace.army.mil/CECW/Pages/nnpi.aspx and the regulations.gov Web 
site under docket number COE-2009-0032.
    The same commenters also provided comments on the proposed 
modification of NWP 21, but those comments will be summarized and 
addressed in a separate document at a later time.

Suspension of NWP 21

    To make a decision on the proposed suspension, the Corps considered 
comments, established decision criteria, and evaluated alternatives. 
This evaluation is provided in the decision memorandum referenced 
above. The Corps has concerns that continued use of this permit in the 
Appalachian region of these six states may result in more than minimal 
individual and cumulative adverse effects to aquatic resources. Under 
Section 404(e) of the CWA, only those activities that result in no more 
than minimal individual and cumulative adverse effects to the aquatic 
environment may be authorized under a NWP. Activities resulting in more 
than minimal individual and cumulative impacts to the aquatic 
environment cannot be authorized by NWPs or other general permits. We 
have determined that suspension of this permit in the Appalachian 
region of these six states is necessary to ensure that the Corps 
evaluates these complex activities, through the individual permit 
process, while it considers whether to modify NWP 21.
    NWP 21 is suspended in the following counties of Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia:
    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 above list of counties is based on the Appalachian Regional 
Commission's list of counties in Appalachia.
    This suspension of NWP 21 goes into effect on June 18, 2010. The 
suspension temporarily prohibits 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 these Appalachian counties, until 
the Corps makes a final determination on the proposed modification of 
NWP 21 or until NWP 21 expires in March 2012. In light of the 
suspension, project proponents for surface coal mining activities 
involving discharges of dredged or fill material into waters of the 
United States will have to obtain Department of the Army authorization 
under the Clean Water Act, through the individual permit process.
    Using the individual permit process for those activities will 
provide more information for the Corps to consider in making decisions 
on these permit

[[Page 34714]]

applications because of increased public involvement, such as the 
opportunity to comment on public notices for individual surface coal 
mining activities in Appalachia. This additional information could help 
improve not only the Corps analysis of potential individual and 
cumulative adverse effects of the proposed activity on the aquatic 
environment, but also on the potential adverse effects on 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, 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 and 
within the Corps Federal control and responsibility.
    Concurrent with this Federal Register notice, all Corps districts 
will issue local public notices announcing the suspension of NWP 21 as 
of the effective date identified above.

Grandfathering of Existing NWP 21 Authorizations

    Today's action prohibits District Engineers from issuing NWP 21 
verifications in response to PCNs for surface coal mining activities in 
the Appalachian counties listed above during the period of suspension. 
In other words, District Engineers cannot continue to process NWP 21 
PCNs that are pending as of June 18, 2010 or accept new or revised NWP 
21 PCNs for surface coal mining activities in the Appalachian region of 
those six states unless the suspension is lifted and NWP 21 is 
reinstated in this region.
    Proponents of proposed surface coal mining activities in the 
Appalachian region of these six states will have to submit applications 
for individual permits instead of NWP 21 PCNs.
    NWP 21 activities that have been verified by District Engineers 
prior to June 18, 2010 in the Appalachian region of Kentucky, Ohio, 
Pennsylvania, Tennessee, Virginia, and West Virginia, continue to be 
authorized by that NWP until it expires on March 18, 2012, 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 Sec.  330.5(d). District engineers may not 
modify previously issued NWP 21 verifications to authorize additional 
discharges of dredged or fill material into waters of the United States 
in the affected Appalachian counties; such discharges must be applied 
for and evaluated under the individual permit process.

Environmental Documentation

    The decision document for the suspension of NWP 21 is available at 
the Corps Headquarters ``National Notices and Program Initiatives'' 
page at: http://www.usace.army.mil/CECW/Pages/nnpi.aspx and the 
regulations.gov Web site under docket 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.

Authority

    We are suspending 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.).

    Dated: June 8, 2010.

    Approved by:
R.L. Van Antwerp,
Lieutenant General, U.S. Army, Commanding.
[FR Doc. 2010-14778 Filed 6-17-10; 8:45 am]
BILLING CODE 3720-58-P