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LRH 2017-00586

Published Feb. 22, 2018
Expiration date: 2/22/2023




TO WHOM IT MAY CONCERN:  In accordance with Title 33 CFR 325.5(c)(1) as published on November 13, 1986, in the Federal Register, Volume 51, Number 219, the district engineers of the Huntington and Pittsburgh Districts United States (U.S.) Army Corps of Engineers (Corps), has re-issued the Regional General Permit (RGP) for Abandoned Mine Lands (AML) for the discharge of dredged and/or fill material into waters of the U.S. pursuant to Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. This RGP is effective and available for use within the entire State of West Virginia by the West Virginia Department of Environmental Protection (WVDEP), any non-profit 501(c)(3) watershed organizations or their subsidiaries, the West Virginia Conservation Agency (WVCA) and their respective Soil Conservation Districts and the West Virginia Division of Natural Resources (WVDNR), to authorize projects associated with AML and acid mine drainage (AMD) that require the discharge of dredged or fill material into waters of the U.S.


BACKGROUND:  RGPs are general permits issued by a district or division engineer on a regional basis to streamline the authorization of activities that result in no more than minimal individual and cumulative adverse environmental effects.  As part of the WVDEP’s responsibilities for the protection and restoration of the environment in West Virginia, the WVDEP administers two programs that focus on the restoration of environmental damage associated with coal mining activities that occurred prior to the passage of the Surface Mining Control and Reclamation Act of 1977 (Public Law 95-87, 30 USC 1234-1328, SMCRA).  These programs include the AML and the Non-Point Source (NPS) programs.


AML PROGRAM:  On August 3, 1977, Congress passed the SMCRA.  In enacting the SMCRA, Congress identified lands located throughout major regions of the U.S., such as the Appalachian Mountains, which had been disturbed by surface and underground coal mining operations with little or no reclamation.  Congress also recognized the impacts from these un-reclaimed lands imposed social and economic costs on the residents in nearby and adjoining areas as well as the impairment of environmental quality.  Section 102(h) of the SMCRA defines one of its purposes as the promotion of the reclamation of mined areas left without adequate reclamation prior to its enactment and in their un-reclaimed condition: substantially degrade the quality of the environment; prevent or damage the beneficial use of land and water resources; and/or endanger the health or safety of the public.  Title IV of the SMCRA addresses Abandoned Mine Reclamation, including the establishment of the Abandoned Mine Reclamation Fund (AML Fund) and defines the purposes for which the AML Fund may be used.


The U.S. Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSMRE) is the federal agency responsible for ensuring that the requirements of the SMCRA are implemented; however, many individual states have been given the primary regulatory responsibility.  In January 1981, the OSMRE approved the West Virginia’s State Reclamation Plan, giving the state responsibility and authority to implement a state abandoned mine reclamation program.  The WVDEP, Office of Abandoned Mine Lands and Reclamation (OAML) has been addressing abandoned mine lands throughout the state since 1981.


The AML Fund also provides funding through the Appalachian Clean Streams Program to address polluted drainage from abandoned coal mines.  Mine drainage may contain high levels of metals and is often acidic.  Polluted mine drainage is often referred to as AMD, although the water may sometimes be alkaline rather than acid.  AMD treatment projects are being conducted throughout the state by non-profit watershed groups, frequently using funds from various government organizations.


The U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS) also provides funding and/or technical assistance for projects that address AML.  The funding of these projects occurs through three programs: the Small Watershed Program (authorized by Public Law 83-566, the Watershed Protection and Flood Prevention Act of 1954 (16 USC 18)), the Potomac River Watershed program (authorized by Public Law 78-534, the Flood Control Act of 1944 (16 USC 460; 33 USC 701), and the Rural Abandoned Mine Fund, authorized under the SMCRA.  The NRCS distributes this funding to sponsors that include the WVCA and their respective Soil Conservation Districts.


NPS PROGRAM: The WVDEP’s Division of Water and Waste Management (DWWM) has the primary responsibility for ensuring the state complies with the Federal Water Pollution Control Act (Title 33 Chapter 26), referred to as the Clean Water Act.  Under Section 303(d)(1)(A) of the Act, the state is required to “identify those waters within its boundaries for which the effluent limitations required are not stringent enough to implement any water quality standard applicable to such waters” and to “establish a priority ranking for such waters.”  This is referred to as the 303(d) List.  Paragraph (C) of this section of the Act requires the state to establish the total maximum daily load (TMDL) of pollutants discharged into waters on the list.  Subsection (2) requires the state to incorporate the TMDL into its “current plan” after approval by the Administrator of United States Environmental Protection Agency (USEPA).


Water quality impacts resulting from coal mining conducted prior to the regulation of the coal industry under the SMCRA are primarily responsible for many of West Virginia’s waters being placed on the 303(d) List.  West Virginia’s Nonpoint Source Program Management Plan, 2014 (Plan) sets the implementation of treatment systems to improve water quality in priority watersheds as a major goal of the NPS program.  The Plan commits the NPS program to implementing AMD projects in the state’s priority watersheds up to the year 2020.


The NPS program provides grants for project funding (for design, construction, oversight and monitoring by the OAML) without any long term funding for operation and maintenance.  This restriction limits the NPS program to funding, almost exclusively, passive AMD treatment systems for coal mine drainage.  Treatment systems typically include the collection and treatment of polluted water within and adjacent to affected watercourses.


PERMITTEE INFORMATION: This RGP may be used by the WVDEP, any non-profit 501(c)(3) watershed organizations or their subsidiaries, the WVCA and their respective Soil Conservation Districts and the WVDNR, for project associated with AML and AMD that require the discharge of dredged and/or fill material into waters of the U.S.


SCOPE OF WORK:  This RGP may be used for the following activities, subject to all appropriate terms and conditions: site access and preparation for active AMD treatment such as the establishment of dosing systems, application of limestone fines, and construction of  limestone leach beds; site work associated with mine land reclamation, other related projects such as wetland construction, enhancement, and removal; stream channel lining; mine seal installation; channel diversion; impoundment construction; underdrain construction, highwall backfilling, regrading and capping of overburden and/or refuse spoils, disposal of spoil, piping, grouting in-situ, stream relocation, coal refuse sediment removal; bank and/or slope stabilization; construction of sediment control structures, reducing bioreactors, vertical flow ponds, diversion wells, successive alkaline producing systems, anoxic limestone drains; sludge removal, maelstrom oxidizer, refuse excavation and quenching; landslide repairs and subsidence control; mine fire excavation, quenching, trenching, and foaming; shaft backfilling and capping; and retaining wall construction, in addition to other passive and active mine drainage treatment technologies.


This RGP applies to all aquatic resources (e.g., streams, wetlands) under the jurisdiction of the Corps within the Huntington and Pittsburgh Districts in West Virginia, except those excluded under conditions of the RGP or conditions imposed by the state water quality certification. The permittee is responsible for ensuring the work is performed in accordance with the attached terms and conditions.  Work performed under this authorization can be suspended, modified or revoked in accordance with 33 CFR 325.7 if a later determination is made by the Corps that the information provided was inaccurate, incomplete or done in bad faith. In the event of such a determination, the Corps may use the suspension, modification or revocations procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The RGP is effective for five (5) years from the date of issuance.   


PRE-CONSTRUCTION NOTIFICATION PROCEDURES: To ensure the activities authorized by the RGP cause no more than minimal individual and cumulative adverse environmental effects, pre-construction notification (PCN) to the district engineer is required before commencing the activity.  The following PCN information will be provided to the appropriate Corps’ District concerning each project, prior to the initiation of reclamation work:


  1. Name, address and telephone numbers of the property owner;

  2. Name, address and telephone numbers of the prospective permittee;

  3. Name, address and telephone numbers of entity responsible for project operation, maintenance, and monitoring;

  4. Exact location of the work, including a location map on USGS 7.5 Minute Series Quadrangle, with Latitude and Longitude in decimal degree format (e.g. Latitude 38.2111 and Longitude -81.3533);

  5. A description of the proposed activity.  The description of the proposed activity must be sufficiently detailed to allow the district engineer to determine that the adverse environmental effects of the activity will be no more than minimal and to determine the need for compensatory mitigation or other mitigation measures.  The description must include the following, as applicable: 

  6. a.  description of project purpose and need, including baseline conditions and anticipated conditions upon project construction:

    b.  description of any anticipated maintenance activities;

    c.   amount of dredged and/or fill material to be discharged into waters of the U.S., expressed in linear feet and acres for streams and acres for wetlands and open waters;

    d.  volume of material (expressed in cubic yards) to be discharged below the ordinary high water mark; and

    e.  if bank stabilization is proposed a long both banks of a stream, the linear footage should be provided separately for each bank;


    6.   A delineation of all potential waters of the U.S. located within the project boundary, including stream (ephemeral, intermittent and perennial), open waters (such as impounded structures) and wetlands identified.  All wetlands must be delineated in accordance with “The 1987 Corps of Engineers Wetland Delineation Manual” and “Regional Supplement to the Corps Wetland Delineation Manual: Eastern Mountains and Piedmont Region.” The extent of waters of the U.S. must be identified in accordance with the definitions and limits of jurisdiction contained in 33 CFR 328 and 33 CFR 329

    7.  Project plans and cross section views depicting boundaries of waters of the U.S. and boundaries of the proposed work.  Drawings should contain sufficient detail to provide an illustrative description of the proposed activity (e.g., a conceptual plan), but do not need to be detailed engineering plans;

    8.  Ground photographs with locations and directional views depicted on a site plan

    9.  A description of the expected direct and indirect adverse environmental effects the activity would cause;

    10.  A description of the ways in which adverse impacts to waters of the U.S. have been avoided and minimized.  The district engineer may determine on a case-by-case basis that compensatory mitigation is required to ensure the activity results in minimal adverse environmental effects on the aquatic environment.  Compensatory mitigation projects provided to offset losses of aquatic resources, if required, must comply with the applicable provisions of 33 CFR 332;

    11.  The location of any water intakes in the vicinity of the project;

    12. The name(s) of those endangered or threatened species that might be affected by the proposed activity or utilize the designated critical habitat that might be affected by the proposed activity;

    13.  statement regarding any historic property which might have the potential to be affected by the proposed activity or a vicinity map indicating the location of the historic property;    

    14. For an activity that requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a Corps federally authorized civil works project (USACE project), a statement confirming that the project proponent has submitted a written request for section 408 permission from the Corps office having jurisdiction over that USACE project; and    

    15. A restoration plan showing how all temporary fills and structures will be removed and the area restored to pre-project conditions.

    Note:  Written authorization from the appropriate Corps District is required prior to commencement of any work resulting in a discharge of dredged and/or fill material into waters of the U.S. associated with this RGP.


    AGENCY NOTIFICATION PROCEDURES:  Notification to the appropriate resource agencies, including the U.S. Environmental Protection Agency (USEPA), the USFWS, the WVDEP, the WVDNR, the West Virginia Division of Culture and History and the U.S. Department of Agriculture NRCS will be required for the following types of projects:


    1. conversion, degradation or elimination of greater than 0.25 acre of waters of the U.S.;

    2. relocation of streams;

    3. discharge of dredged or fill material into greater than 300 linear feet of stream for projects involving valley fill construction necessary to provide for the disposal of excess spoil;

    4. projects involving the discharge of dredged or fill material that include the lining of perennial streams or lining of greater than 500 linear feet of intermittent streams; and

    5. projects involving the discharge of dredged or fill material that include increases in perennial or intermittent stream channel capacities in excess of 500 linear feet. 


       The Corps will provide the resource agencies copies of the permit application and plans.  These agencies will have 30 calendar days to provide substantive, site-specific comments. To expedite this review, it is requested that permit applications for projects subject to agency notification contain one original hard copy and six (6) electronic copies (CDs). The district engineer will fully consider agency comments received within the specified time frame concerning the proposed activity’s compliance with the terms and conditions of the RGP, including the need for mitigation to ensure the net adverse environmental effects of the proposed activity are no more than minimal. The district engineer will provide no response to the resource agency. The district engineer will indicate in the administrative record associated with each PCN that the resource agencies’ concerns were considered.


      WATER QUALITY CERTIFICATION:  A copy of the required Section 401 Water Quality Certification issued by the WVDEP for this RGP is attached. 


      RGP REVALUATION:  The policies of this RGP are subject to review and consideration at any time.  At the end of the five (5) years, a complete re-evaluation will be performed according to the regulations governing the use of the RGPs.


      For further information contact:


      U.S. Army Corps of Engineers


      502 8th Street

      Huntington, West Virginia 25701-2070


      U.S. Army Corps of Engineers


      1000 Liberty Avenue

      Pittsburgh, Pennsylvania 15222-4186