44. Mining Activities: In the July 21, 1999, Federal Register notice, we proposed to issue an NWP to authorize discharges of dredged or fill material into certain types of non-tidal waters of the United States for aggregate and hard rock/mineral mining activities.
A large number of commenters opposed the issuance of NWP 44. Numerous commenters said that NWP 44 is so restrictive that it will be of little use to the mining industry. These commenters also indicated that mining companies will have little incentive to design their projects to meet the terms and conditions of NWP 44 and that these companies will apply for individual permits. Many commenters stated that the activities authorized by NWP 44 will result in more than minimal cumulative adverse effects on the aquatic environment, individually and cumulatively. Several commenters said that the Corps should issue separate NWPs for aggregate and hard rock/mineral mining activities. One of these commenters stated that aggregate and hard rock/mineral mining activities are distinct forms of mining and that issuing one NWP to authorize both of these activities violates the similar in nature requirement of Section 404(e) of the Clean Water Act.
The terms and conditions of this NWP will ensure that it authorizes only aggregate and hard rock/mineral mining activities with minimal adverse effects on the aquatic environment. Where there are specific concerns for the aquatic environment, division engineers can regionally condition this NWP to prohibit or limit its use in high value waters. Since notification to the district engineer is required for all activities authorized by this NWP, each proposed mining activity will be reviewed by district engineers to ensure that the work results in minimal adverse effects. We maintain our position that it is unnecessary to issue separate NWPs for aggregate and hard rock/mineral mining activities. These activities are sufficiently similar in nature to warrant the issuance of a single NWP.
One commenter asked what is meant by the term "hard rock/mineral mining" as used in the context of NWP 44. This commenter indicated that the district engineer will determine what constitutes mining for the purposes of this NWP on a case-by-case basis. This commenter also requested clarification whether NWP 44 authorizes all discharges of dredged or fill material into waters of the United States for hard rock/mineral mining activities or whether the Corps intends to limit this NWP to a certain subset of mining and related activities. One commenter asked for a definition of the term "support activities" as used in the context of this NWP. Another commenter said that this NWP should be expanded to authorize the mining of clay and dirt.
For purposes of this NWP, hard rock/mineral mining is the extraction of metalliferous ores from subsurface locations. NWP 44 authorizes discharges of dredged or fill material into certain categories of waters of the United States, as identified in the first paragraph of this NWP, for aggregate mining activities and hard rock/
mineral mining activities. District engineers will determine, on a case-by-case basis, whether a particular mining activity is within the scope of this NWP. NWP 44 also authorizes fill for support facilities necessary for the mining operation. Support facilities authorized by this NWP include berms, access and haul roads, rail lines, dikes, road crossings, settling ponds and settling basins, ditches, stormwater and surface water management facilities, head cut prevention activities, sediment and erosion controls, and mechanized landclearing. In the July 21, 1999, Federal Register notice, we discussed the applicability of this NWP to clay mining activities and the extraction of soil to be used as fill material. NWP 44 does not authorize clay mining or the extraction of fill dirt from waters of the United States. These activities can be authorized by other NWPs, regional general permits, or individual permits.
Several commenters objected to the scope of applicable waters for this NWP, stating that it is too limited for most mining activities A number of commenters stated that hard rock/mineral mining activities should be authorized in ephemeral streams. One commenter said that NWP 44 should authorize mining activities in headwaters, including intermittent and perennial streams. Several commenters stated that there is no need to limit the use of this NWP to the upper portion of headwaters and eliminate the ability for miners to relocate or divert most headwater stream segments. Many commenters indicated that this NWP should not authorize any activities in streams. One commenter asked why NWP 44 does not authorize mining activities between lower perennial streams and the upper segments of headwater streams. One commenter said that the 1 cubic foot per second threshold should be replaced with ephemeral streams as a limit for stream bed impacts for aggregate mining activities. Several commenters said that the Cowardin definition of the term "lower perennial stream" should be included in the "Definitions" section of the NWPs.
The scope of applicable waters for NWP 44 is intended to ensure that this NWP authorizes only those mining activities that have minimal adverse effects on the aquatic environment, individually and cumulatively. We do not agree that hard rock/mineral mining activities should be authorized in streams because these activities are more likely to result in more than minimal adverse effects on the aquatic environment, due to the processing methods used for this type of mining. NWP 44 authorizes aggregate mining activities in perennial and intermittent streams, provided those streams have an average annual flow of 1 cubic foot per second (cfs) or less. NWP 44 also authorizes aggregate mining activities in lower perennial streams. Limiting aggregate mining activities to these small streams will ensure that the NWP authorizes activities with minimal adverse effects on the aquatic environment. Streams segments located between lower perennial streams and the upper reaches of headwater streams often provide valuable aquatic habitat, such as fish spawning areas. We do not agree that the 1 cfs threshold should be replaced with ephemeral streams for aggregate mining activities in headwaters. In the last paragraph of this NWP, we have incorporated a modified version of the Cowardin definition of the term "lower perennial riverine subsystem" to clarify where aggregate mining activities in lower perennial streams are authorized. We have also replaced the word "and" with the term "and/or" between parts (ii) and (iii) of the introductory paragraph to clarify that a particular mining activity authorized by NWP 44 can occur in any or all of the specified waters.
Several commenters stated that the proposed 2 acre limit for NWP 44 is too low. Numerous commenters suggested that this NWP should have a higher, indexed acreage limit. Three commenters recommended a 3 acre limit and another commenter said that impacts to lower perennial streams, isolated wetlands, and ephemeral streams should be limited to 1 acre. One commenter stated that this NWP should have a higher acreage limit because other Federal and state programs that address hard rock/
mineral mining activities require measures to minimize impacts to waters of the United States. One commenter suggested that the Corps impose a linear limit on perennial and intermittent stream bed impacts. Another commenter recommended a 500 linear foot limit for stream bed impacts.
To ensure that this NWP authorizes activities with minimal adverse effects on the aquatic environment, we have reduced the acreage limit of NWP 44 to 1/2 acre. We do not agree that this NWP should have an indexed acreage limit. Since this NWP has applicability nationwide, it would be impractical to utilize state requirements for mining activities, because their requirements are likely to vary considerably between geographic areas. This NWP is limited to small stream segments; therefore it is unnecessary to impose a linear limit on stream bed impacts. However, division engineers can regionally condition this NWP to further limit stream impacts. In addition, notification is required for all activities authorized by this NWP, which will allow district engineers to review proposed stream impacts on a case-by-case basis to ensure that those activities result in minimal adverse effects on the aquatic environment.
Two commenters objected to requiring PCNs for all activities authorized by this NWP. One commenter suggested a 1/3 acre PCN threshold. Several commenters stated that the Corps does not have the authority to review reclamation plans and the requirement to submit reclamation plans with the PCN should be removed.
We believe that it is necessary to require notification for all activities authorized by this NWP, to ensure that the NWP authorizes activities with minimal individual and cumulative adverse effects on the aquatic environment. As discussed in the July 21, 1999, Federal Register notice, the requirement for submission of a reclamation plan with the PCN is not intended to supersede other Federal or State requirements. The district engineer will not require reclamation per se, but will review the reclamation plan to determine if compensatory mitigation is required to offset losses of waters of the United States and ensure that the individual or cumulative adverse effects of the mining activity on the aquatic environment are minimal. If there are no Federal or State requirements for a reclamation plan for a particular mining activity, the applicant should state that fact in the PCN. The District Engineer may require compensatory mitigation for that activity to ensure that the adverse effects on the aquatic environment are minimal. If the reclamation plan required by Federal or state law adequately addresses compensation for losses of waters of the United States, then the District Engineer will not require additional compensatory mitigation, unless there are additional concerns for the aquatic environment.
Several commenters asked whether paragraph (i) of the proposed NWP (now designated as paragraph (h)) applies only to hard rock/mineral mining activities because of the processes involved in mineral extraction. Some of these commenters indicated that the text of this paragraph implies that the 200 foot setback applies to both aggregate and hard rock/mineral mining activities. A number of commenters said that the Corps does not have the authority to prohibit beneficiation and mineral processing within 200 feet of the ordinary high water mark (OHWM) of open waters. One commenter asked if the 200 foot setback is necessary because NWP 44 does not authorize discharges of dredged or fill material into open waters of the United States for hard rock/
mineral mining activities.
The requirements of paragraph (h) of the proposed NWP 44, apply only to hard rock/mineral mining activities. We have inserted the phrase "for hard rock/mineral mining activities" into the text of paragraph (h) to clarify that the 200 foot setback applies only to beneficiation and mineral processing associated with hard rock/mineral mining activities. In the mining industry, the term "beneficiation" applies solely to mineral ore processing. We have the authority to condition NWP 44 to prohibit beneficiation and mineral processing within 200 feet of the OHWM of open waters because this requirement is necessary to ensure that the NWP authorizes activities with minimal adverse effects on the aquatic environment. Project proponents conducting hard rock/mineral mining activities in waters of the United States who want to conduct beneficiation and mineral processing within 200 feet of the OHWM of open waters can request another form of DA permit for those activities. The 200 foot setback required for beneficiation and mineral processing activities is necessary to protect water quality.
We have also modified paragraph (i) (paragraph (j) of the proposed NWP) to clarify that the district engineer can require modifications to the water quality management plan for the mining activity to ensure that adverse effects to water quality are minimal. In addition, we have modified paragraph (k) (formerly paragraph (l)) to clarify what constitutes a single and complete mining activity. In paragraph (l) (formerly paragraph (m)), we have changed the first item to require the notification to include a description of waters of the United States adversely affected by the proposed work.
Several commenters objected to the provision in the last paragraph of NWP 44 that prohibits hard rock/mineral mining within 100 feet of the OHWM of headwater streams. Another commenter said that this NWP should contain depth limits for pits because large pits could be constructed under this NWP. One commenter suggested adding a provision to NWP 44 that requires the permittee to fully reclaim or restore the mined site before commencing mining activities on another site in the same stream segment.
The prohibition against hard rock/mineral mining activities in waters of the United States within 100 feet of the OHWM of headwater streams is necessary to ensure that these mining activities result in minimal adverse effects on headwater streams. It is unnecessary to add a depth limit for mining pits because the 1/2 acre limit and the terms and conditions of NWP 44 provide adequate protection of the aquatic environment. We do not agree that it is necessary to require permittees to fully reclaim or restore the mined site before conducting mining activities on other sites because the NWP regulations concerning single and complete projects already adequately address multiple mining activities.
Several commenters requested further explanation of the proposed "clarification of jurisdiction" for mining operations that was provided in the preamble of the July 21, 1999, Federal Register notice. These commenters asked for definitions of the terms "cessation of operations" and "abandonment." Two commenters said that the "clarification of jurisdiction" must clearly state that wetlands, ponds, and other waterbodies will not be considered "waters of the United States" until bond release. One commenter objected to changing the 15 year term proposed in the preamble to the July 1, 1998, Federal Register notice to a 5 year term because mining is a cyclical industry and shutdowns of greater than 5 years are not uncommon.
One commenter stated that the "clarification of jurisdiction" statement is inconsistent with the effluent limitation guidelines at 40 CFR part 440. This commenter said that pit lakes should be regulated as waters of the United States, even though the mining site has not been reclaimed. This commenter expressed concern that pit lakes would not be considered waters of the United States even if the mining operation ceased years ago. In addition, this commenter indicated that the construction of pit lakes would does not comply with former paragraph (f) (now designated as paragraph (e)) of the proposed NWP and General Condition 21.
As a result of our review of the comments addressing the proposed "clarification of jurisdiction" we have decided to withdraw the proposed guidance. District engineers will determine, on a case-by-case basis, whether a specific mined area has been abandoned. In most cases, a mining site where no construction, mining, excavation, processing, and/or reclamation activities have occurred during the last 10 years would be considered abandoned, at the district engineer's discretion. Wetlands and waterbodies within an abandoned mined area would be considered "waters of the United States" if those areas meet the criteria at 33 CFR part 328.
In response to a PCN, district engineers can require special conditions on a case-by-case basis to ensure that the adverse effects on the aquatic environment are minimal or exercise discretionary authority to require an individual permit for the work. The issuance of this NWP, as with any NWP, provides for the use of discretionary authority when valuable or unique aquatic areas may be affected by these activities. This NWP is subject to General Condition 25, which restricts its use in designated critical resource waters. For NWP 44 activities resulting in discharges of dredged or fill material into waters of the United States within 100-year floodplains, General Condition 26 requires the permittee to notify the district engineer and demonstrate that the proposed work complies with FEMA or FEMA-approved local floodplain construction requirements. NWP 44 is issued with the modifications discussed above.
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