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Section 404 of the Clean Water Act

Memoranda of Understanding: Surface Coal Mining



This Memorandum of Understanding (MOU)1 establishes a process for improving coordination among the U.S. Office of Surface Mining (OSM), U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (COE), U.S. Fish and Wildlife Service (FWS) and West Virginia Division of Environmental Protection (WVDEP), in the review of permit applications required for surface coal mining and reclamation operations resulting in the placement of excess spoil fills in the waters of the United States (hereinafter SCM/VF)2. The signatory agencies have entered into this agreement with the goals of enhancing cooperation and communication in order to ensure compliance with all applicable Federal and State laws, improving timelines and predictability in the permit process, and minimizing adverse environmental impacts from SCM/VF.

The interagency coordination process outlined in this agreement is intended to facilitate permit decisions related to SCM/VF, including:

(1) permits required for surface coal mining and reclamation under the Surface Mining Control and Reclamation Act (SMCRA) and the applicable delegated State program,

(2) permits required for discharges of pollutants into waters of the United States, or waters of the State under Section 402 of the Clean Water Act (CWA) (i.e., the approved State National Pollutant Discharge Elimination System (NPDES) program),

(3) permits required for discharges of fill material to waters of the United States under CWA Section 404,

(4) State water quality certification provisions of CWA Section 401 and,

(5) applicable provisions of the Endangered Species Act (ESA) and the Fish and Wildlife Coordination Act (FWCA).

1 This MOU is being developed pursuant to the terms of the settlement agreement in Bragg, et. al., v. Robertson, et. al., Civ. No. 2:98-0636 (S.D.W.Va.), until permanent procedures are established among the agencies following completion of a comprehensive Environmental Impact Statement.

2 As used in this MOU, "surface coal mining operation” is defined in the Surface Mining Control and Reclamation Act of 1977 (SMCRA), Section 701(28). The phrase "surface coal mining operations resulting in the placement of excess spoil fills in the waters of the United States” is intended to apply generally to any mountaintop mines which are returned to their approximate original contour (AOC)[SMCRA Section 515]; mountaintop removal mining [see definitions and performance standards at 30CFR785.14(b) and 824]; contour mining operations returned to AOC [SMCRA Section 515]; contour mines with a variance from AOC [Section 515(e)]; and, any surface impacts incident to underground mining resulting in underground development waste [SMCRA Section 516]. Further, as used in this MOU, the terms "resulting in the placement of excess spoil fills” only applies to disposal of excess spoil or underground development waste in valley, head-of-hollow, or durable rock fills (see definitions and performance standards in 30 CFR 701.5 and 816/817.71-73).” These three types of excess spoil disposal and underground development waste fills occur, by regulatory definition, on "steep slopes.” [SMCRA Section 515(d)(4)]


  1. The coordination process outlined in this agreement is applicable to the evaluation of SMCRA and CWA permits for SCM/VF within the State of West Virginia. Discharges of excess spoil fill in waters of the United States resulting in minimal adverse environmental impacts are eligible for authorization under a CWA Section 404 General permit; discharges causing more than minimal adverse environmental impacts are subject to CWA Section 404 individual permit review. The determination as to whether a particular project will result in more than minimal adverse effects will be based on the relevant factual circumstances of each project. As a general matter, any mining operation in the State that proposes to discharge fill material in waters of the United States draining a watershed of 250 acres or more (measured from the toe of the fill) would be considered to have more than minimal adverse environmental effects and, therefore, would be subject to an individual CWA Section 404 permit. In specific circumstances after evaluation of the facts associated with a particular proposed mining operation, the COE may determine that a General permit authorization is appropriate for valley fills exceeding the 250 acre threshold if associated adverse environmental impacts are minimal. In the determination of whether or not an individual CWA Section 404 permit will be required, the COE and EPA, in coordination with the other signatory agencies, will also specifically evaluate the number of watersheds to be affected by proposed valley fill discharges to assess potential cumulative impacts to waters of the United States. In addition, if the COE determines that a discharge of fill material to waters of the United States draining a watershed of 250 acres or less would cause more than minimal adverse environmental effects (e.g., to endangered or threatened species or Federal trust resources under the FWCA), the COE will require review of such discharges under the CWA Section 404 individual permit process.

    The evaluation of such individual permits will be subject to the interagency coordination process described below so that permit review under CWA Section 402 and 404, and SMCRA can proceed concurrently. Surface coal mining operations whose associated excess spoil fills in waters of the U.S. are determined to have minimal individual and cumulative adverse effects are subject to authorization under a CWA General permit issued by the COE. Discharges in waters of the U.S. associated with a SCM/VF approved by a COE General permit are contingent upon a final WVSMCRA permit and certification by the State under CWA Section 401. Therefore, the COE General permit authorization will follow applicable final permit decisions made pursuant to WVSMCRA, and State 401 water quality certification.

  2. The provisions of this agreement cover surface coal mining operations resulting in the placement of excess spoil fills in waters of the United States requiring applicable permits under WVSMCRA and CWA Section 404. This agreement does not apply to the review of surface mining operations in steep slopes where no Section 404 permit is required, or where the only Section 404 discharges are related to berms or dikes associated with the construction of sediment ponds, or road crossings, or stream diversion activities. In addition, this agreement does not apply to coal mining operations where the only proposed discharge in waters of the U.S. is coal processing waste.

  3. Consistent with existing regulations, guidance and policies, WVDEP is responsible for the review of applications for and authorization of permits to engage in surface mining and reclamation activities pursuant to WVSMCRA. In order to ensure the most effective coordination among State and Federal agencies under this MOU, OSM will provide technical assistance to WVDEP for such permit applications that are subject to this MOU.

    WVDEP also has the responsibility to review applications and to authorize permits for discharges of pollutants into waters of the United States under NPDES (i.e. CWA Section 402), including pollutants discharged from surface mining operations. Consistent with existing regulations, guidance, and policies, EPA currently coordinates with WVDEP in the review of such permit applications and the procedures of this MOU are intended to build upon that existing coordination.

    The COE has the responsibility to review applications, and to make the decision whether to authorize permits for discharges of dredged or fill material into waters of the United States (i.e., CWA Section 404), including discharges of excess spoil material (i.e. valley fills) associated with surface coal mining operations. EPA shares responsibility under CWA Section 404, among other authorities, to promulgate environmental standards under Section 404(b)(1), and to coordinate with the COE in the review of Section 404 permit applications. This MOU also builds upon these existing coordination provisions as the basis for improving cooperation among the signatory agencies.

    Consistent with the statutory requirements of the Endangered Species Act (ESA) and the Fish and Wildlife Coordination Act (FWCA), the Federal agencies are responsible for coordinating with FWS in the review of Federal permits that may affect threatened or endangered species, or other Federal trust resources. The FWCA requires that consultation on the impacts of Federally approved water-related projects (including, for example, mining activities affecting waters of the U.S.), must provide that wildlife conservation receive equal consideration and is coordinated with other project development features. Under the ESA, the Federal agencies shall consult with FWS to ensure that any action authorized by such agency is not likely to jeopardize the continued existence of any threatened or endangered species. This existing role is the basis for FWS coordination under the provisions of this MOU.

  4. This agreement to improve coordination does not alter, in any way, existing agency responsibilities or authorities established under Federal or State statutes or regulations.


  1. General
    This section outlines the general procedures to be used among the agencies to improve coordination in the review of permits necessary for SCM/VF. The goal of this coordination is to take advantage of the combined experience and expertise of the Federal and State agencies involved in the review of proposed SCM/VF to ensure more timely, predictable, and environmentally effective decision making under applicable Federal and State regulations and policies. Issues that may arise in the implementation of this section will be addressed by the signatory agencies at the field level. These coordination procedures may not extend or delay deadlines or other permit review time frames established by statute or regulation, unless such statute or regulation expressly provides for extensions.
  2. Coordination
    1. Pending (pre-MOU) Permit Decisions
      For those proposed SCM/VF where WVDEP review under WVSMCRA is complete (or essentially complete) but no Section 404 permit application has been filed, the COE and EPA, in coordination with the other signatory agencies and consistent with the Settlement Agreement executed on December 23, 1998 in Bragg, et al. v. Robertson, et al., Civ. No. 2:98-0636 (S.D.W.Va.), will work with permit applicants to reduce impacts to waters of the United States to the maximum extent practicable. Where this coordination results in proposed fills that affect watersheds below the 250 acre threshold and associated individual and cumulative environmental impacts are minimal, the COE will proceed to authorize such fills by General permit and WVDEP will make any necessary conforming modifications to applicable NPDES and WVSMCRA permits, and certification under CWA Section 401. The COE, in coordination with EPA and the other signatory agencies, in determining whether or not a proposed discharge will be consistent with requirements of the CWA and agency regulations, will generally require a compensatory mitigation plan be approved to offset anticipated environmental impacts to waters of the United States and make such compensatory mitigation plan a condition of the Section 404 authorization, including authorizations under General permits.

      In circumstances where the COE determines that discharges of excess spoil to waters of the United States associated with a proposed surface coal mining operation would have greater than minimal adverse environmental impacts (e.g., valley fills which, as a general matter, exceed the 250 acre threshold), the COE will coordinate with the signatory agencies to review such discharges under the COE's individual permit regulations, including the COE's Public Interest Review and EPA's Section 404(b)(1) Guidelines. The COE also is responsible for conducting the appropriate review (33CFR325 Appendix B) of the potential environmental impacts under the National Environmental Policy Act (NEPA), resulting in either an environmental assessment which supports a finding of "no significant impact” (FONSI) or an environmental impact statement if the proposed permit will be a major Federal action having a significant impact on the environment. The COE will complete any individual permit review in a timely manner consistent with all applicable requirements of existing regulations and policies and will advise the permit applicant and regulatory agencies of the final permit decision.

    2. Coordinated Review of Permit Applications.
      Within 30 days of the effective date of this agreement, WVDEP will modify its existing agency notification procedures to provide for effective notice to the Federal signatory agencies of permit applications proposing to conduct a SCM/VF. Initial notification to the Federal agencies will be accomplished through the use of forms sent by WVDEP within ten days of receipt by WVDEP of a new surface coal mining permit application. This notification will facilitate early coordination among the agencies consistent with the terms and objectives of this MOU. The forms will identify information included in the permit application regarding the proposed coal mine including:
      1. Permit Applicant
      2. General location and size of the proposed mine
      3. Location and extent of watersheds affected by excess spoil disposal
      4. Potential threatened and endangered species habitat
      5. Potential wetlands or other special aquatic site impacts
      6. Proposed Compensatory Mitigation Plan
      Following notification by WVDEP, the Federal signatory agencies may request copies of the mine drainage plan or other relevant portions of the permit application. This notification procedure will not affect existing coordination provisions between EPA and WVDEP under the State's NPDES Program.

      If all valley fills proposed in the application would affect watersheds draining less than 250 acres, the COE3 will advise the permit applicant that proposed discharges may be eligible for authorization under a General permit, typically Nationwide Permit 21 (NWP 21), and that the applicant is required to notify the COE consistent with their notification procedures (33CFR330.1(e) and NWP General Condition 13). NWP 21 is applicable to discharges in waters of the United States associated with surface coal mining activities that have been authorized by the approved SMCRA program and where such discharges will have only minimal adverse environmental impacts (see 33CFR Part 330 for more information about the NWP Program). Because NWP 21 may only approve discharges associated with proposed surface coal mining operations that have been authorized under SMCRA, applicants should be advised to submit their notification to the COE at the time WVDEP has made its final permit decision under WVSMCRA.

      Once the COE has received a completed notification4, including a State approved compensatory mitigation plan, the Preconstruction Notification (PCN) will be submitted to the signatory agencies for review. The agencies will use the PCN5 process to provide comments on proposed valley fills and recommend to the COE whether or not such discharges in waters of the U.S. should be authorized under CWA Section 404 by a General permit. Review by the signatory agencies of the PCN should specifically consider the nature and scope of anticipated adverse environmental impacts to waters of the U.S., including potential cumulative impacts, potential effects to threatened or endangered species, and the adequacy of the proposed compensatory mitigation plan to offset anticipated environmental impacts. The COE is responsible for fully considering agency comments in making a final permit decision, including the determination of whether the proposed valley fills will be authorized by General permit or to use its discretionary authority to require an individual permit. The applicant will be notified by the COE of their permit decision within 30 days after receipt of a completed PCN.

      In circumstances where a proposed SCM/VF project will include one or more excess spoil disposal sites in waters of the United States draining a watershed of 250 acres or greater, the applicant will be advised by the COE as soon as possible to submit an application for an individual Section 404 permit so that permit reviews under WVSMCRA and the CWA may proceed simultaneously.6 Initial coordination among the agencies and the applicant will focus on ensuring that sufficient information is provided to complete necessary permit applications so that project review may proceed in a timely manner.

      If, during the review of the individual permit application the Corps determines, in coordination with the other signatory agencies, that a particular SCM/VF proposal that exceeds the 250 acre threshold may be eligible for General permit authorization, the COE will so advise the applicant in an expeditious manner. The agencies will closely coordinate in making this determination to ensure, to the maximum practicable extent, that issues are raised and fully resolved prior to advising the applicant that the individual permit application may be withdrawn and that processing under a General permit may proceed.

      The signatory agencies will coordinate their review of the proposed SCM/VF consistent with existing regulations, policies, and guidance to ensure the following goals are achieved to the maximum practicable extent:

      1. The schedule for permit review will combine or coordinate public notices and public hearings wherever appropriate.

      2. Agency experience and expertise will be shared to increase predictability in the permit process, reduce delays, and ensure that environmental impacts are fully avoided, minimized, and mitigated to the maximum practicable extent.

      3. Interagency review will focus on applying existing provisions of the CWA and SMCRA to approve surface coal mining operations that maximize the amount of spoil that is placed back on the mined area and minimizes the excess spoil to be discharged into waters of the United States.

      4. The signatory agencies agree to exercise their best efforts to resolve issues or concerns raised by any of the agencies regarding the issuance of pending permits, including meetings, conference calls, site visits, and other informal opportunities to address concerns in a timely manner.

      5. Interagency coordination will seek to ensure that permit decisions under SMCRA and CWA are consistent, complementary, and made in the same general time frames to the maximum practicable extent.

      The agencies may agree to develop additional specific time frames and protocols, as necessary, to further the objectives of this MOU.
3 The COE may require additional information from the permit applicant regarding the proposed discharges to waters of the U.S.
4 COE regulations require that a NWP permit decision be made within 30 days of receipt of a completed PCN.
5 COE NWP Condition 13 (Notification) provides commenting agencies 5 calendar days from receipt of the PCN to submit their comments to the Corps District Office.
6 If at any time during the permit review process valley fill impacts are reduced to a minimal effect, and discharges are consistent with approval under a general permit, the applicant may withdraw the individual permit application and submit a Preconstruction Notification for general permit authorization of the fills.


  1. The policy and procedures contained within this MOU are intended solely as guidance and do not create any rights, either substantive or procedural, enforceable by any party. This document does not, and is not intended to, impose any legally binding requirements on Federal agencies, States, or the regulated public, and does not restrict the authority of the employees of the signatory agencies to exercise their discretion in each case to make regulatory decisions based on their judgement about the specific facts and application of relevant statutes and regulations.
  2. Nothing in this MOU is intended to diminish, modify, or otherwise affect statutory or regulatory authorities of any of the signatory agencies. All formal guidance interpreting this MOU and background materials upon which this MOU is based will be issued jointly by the agencies.
  3. Nothing in this MOU will be construed as indicating a financial commitment by OSM, the COE, EPA, FWS, or WVDEP for the expenditure of funds except as authorized in specific appropriations.
  4. This MOU will take effect on the date of the last signature below and will continue in effect until permanent procedures are established following completion of the interagency EIS, or unless earlier modified or revoked by agreement of all signatory agencies. Modifications to this MOU may be made by mutual agreement of all the signatory agencies. Modifications to the MOU must be made in writing.

W. Michael McCabe /s/
Regional Administrator
U.S. Environmental Protection Agency

Hans A.VanWinkle /s/
Brigadier General, U.S. Army
Division Engineer

Michael Miano /s/
West Virginia Division of Environmental Protection

Allen D. Klein /s/
Regional Director, OSM
U.S. Department of the Interior

Ronald E. Lambertson /s/
Regional Director, FWS
U.S. Department of the Interior

DATE: April 7, 1999