Nationwide Permit 44 for Mining Activities
The overwhelming majority of the "aggregate" materials produced by NSSGA's members are used for construction of the nation's infrastructure, including highways, airports and bridges, as well as commercial and residential building. These materials are also used in environmental applications as well, such as for water filtration, erosion control, landscaping and air pollution control. There are times when our industry must conduct its activities in a way that results in a discharge of dredged or fill material into "waters of the United States," including wetlands, and at those times, these industry activities come under the jurisdiction of the Corps' Section 404 permitting program.
NSSGA Position
The aggregates industry has historically used NWP 26 for impacts to isolated and headwaters. This permit allowed impacts up to 10 acres with only a written notification to the Corps that the activity was to take place. NWP 26 was used to divert and relocate small stream segments that could potentially flood active aggregate pits and for stream crossings. This permit was replaced with the industry-based NWP 44 for mining activities. The allowable impacted acreage limits for NWP 44 was reduced from 10 acres to ½ acre making the new replacement permits for NWP 26 virtually useless for aggregate producers. NSSGA is concerned about the following key points:
- The NWP Program no longer retains the flexibility and rationality necessary for it to function as a streamlined permitting option as Congress intended, and the virtual elimination of realistic NWPs will overwhelm the individual permitting process, creating unacceptable delays and opportunity costs;
- Aggregates producers have lost the benefits provided by access to NWP 26 (for isolated and headwaters) without an adequate or useful replacement permit in place as promised, since proposed NWP 44 is overly restrictive;
- NWP 44 for mining activities, including aggregates mining activities, is likewise so restrictive that it will be used only infrequently and is therefore an inadequate "replacement" for NWP 26.
NSSGA strongly believes that this NWP has subverted the Congressionally-mandated charge to provide a streamlined permitting process; done great harm to our members in the aggregates industry as well as others in the regulated community; and has adversely affected an already overworked and understaffed Corps of Engineers at both the District and the Headquarters levels.
Background
The nationwide permit program, established under Section 404(e) of the Clean Water at the direction of Congress, has been a streamlined permitting program of critical importance to both the regulated community and the Corps. This permitting option was designed as a less burdensome mechanism for projects with minimal adverse environmental effects on both an individual and a cumulative basis. As such, it eliminates the problem of minimal impact projects clogging the individual permitting pipeline, causing costly and unjustifiable delays and undermining support for a more thorough permitting procedure where it is most needed. The NWP program gives the already overworked and understaffed Corps the time necessary to devote to more intensive analysis of larger projects with greater potential adverse environmental effects through the individual permitting process. Likewise, the NWP program provides an environmentally beneficial incentive for project proponents to design their projects to fit into the acceptable framework for an NWP, thereby ultimately lessening adverse impacts on the environment.
Of approximately 50,000 projects permitted annually by the Corps under Section 404, about 43,000 are authorized under the NWP program. According to the Corps' data, the NWP program in fiscal year 1997 resulted in permits affecting 16,000 acres. These permits as a whole required approximately 28,000 acres of compensatory mitigation. Therefore, a net gain of over 12,000 acres was achieved throughout the nation under the NWP program in fiscal year 1997. Under all aspects of the Section 404 permitting program in fiscal year 1997, Corps data show that 56,000 acres of mitigation were provided to compensate for 34,000 acres of impacts, resulting in a net gain of 22,000 acres across the country. These 18,000 acres of additional impacts came primarily from projects requiring individual permits, which, while fewer in number, were much larger in potential and real environmental effect. The net gain of wetlands through the NWP program is one indicator that the program meets the minimal environmental effects criteria.
Current Status
On March 16, 2000, the former National Stone Association (NSA) filed suit in the U. S. District Court for the District of Columbia challenging a March 9, 2000 rule issued by the United States Army Corps of Engineers that makes significant changes to the Corps's Clean Water Act NWP program. In authorizing NWPs, Congress intended a streamlined permitting process that would authorize similar activities with minimal effects without burdening permittees with unnecessary costs and delay. The Corps's replacement of NWP 26 with a NWP for Mining Activities (NWP 44) with severe conditions is inconsistent with this mandate and is procedurally and substantively flawed. The Corps has created a NWP program that is virtually useless for NSSGA's members' activities and that will force most aggregate mining activities into the time-consuming and costly individual permit process.
NWP 44 for Mining Activities remains a confused and poorly crafted "replacement" for NWP 26, the provisions of which can no longer be easily accepted or revoked for a specific type of mining activity. As now written, it is of only the most limited applicability to the aggregates industry and we believe it will be little used.
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