Coal Zoom | Corps Proposes Reissuance of CWA Section 404 General-Nationwide Permits/Subsequent Rulemaking Steps

Corps Proposes Reissuance of CWA Section 404 General-Nationwide Permits/Subsequent Rulemaking Steps

June 26, 2025 - Below is a message from the West Virginia Coal Association:

Last week, the U.S. Army Corps of Engineers (Corps) announced a proposal to reissue the agency’s programmatic general or Nationwide (NWP) Clean Water Act (CWA) Section 404 permit program. The Corps’ NWPs are reissued at five-year cycles. The current NWP program was issued in 2021 and will expire in March 2026. The Corps’ federal regulations (33 CFR 330) related to the NWP program are available at https://www.ecfr.gov/current/title-33/chapter-II/part-330.

A copy of the Federal Register announcing the reissuance of the NWPs is provided as an attachment to this message and is also available at https://www.govinfo.gov/content/pkg/FR-2025-06-18/pdf/2025-11190.pdf The comment period on the proposed NWPs and associated General Conditions closes on July 18, 2025. The agency has proposed to reissue 56 of its NWPs and to create a new general permit for “activities that improve the passage of fish and other aquatic organisms and other important ecological processes” (referred to in the public notice as “NWP A”) and to not reauthorize NWP 56 (finfish mariculture activities).

Specific to the coal industry, the Corps has proposed the reissuance of NWPs 21, 49 and 50 without modifications. NWP 21 authorizes surface coal mining activities, excluding valley fill construction, that impact less than ½ acre of jurisdictional waters and require a preconstruction notification (PCN) to the appropriate Corps’ district office. See page 26144 of the attached Federal Register. NWP 49 permits remining activities of previously mined areas (mined and reclaimed, abandoned mine lands and bond forfeiture sites) where new mining activity will increase aquatic resource functions. “New” mining areas and activity cannot exceed 40 percent of the total acreage including the previously mined and disturbed areas. NPW 49 also requires a PCN. See page 26151 of the attachment. NWP 50 is used to authorize underground coal mining activities that impact less than ½ acre of jurisdictional waters and requires a PCN to the local district. NWP 50 does not apply to coal preparation activities outside of the immediate underground mine site. See page 26151 of the attached Federal Register notice.

The Corps has also proposed to reissue NWP 14 for linear transportation projects. See page 26143 of the attachment.

The proposed reissuance of the national programmatic, NWP permitting program by the Corps triggers two related administrative rulemaking actions. Under 33 CFR 330.5(d) https://www.ecfr.gov/current/title-33/chapter-II/part-330/section-330.5, local Corps’ District Engineers can modify or suspend NWPs that are authorized under the national, programmatic program for use within their individual districts. Acting as the lead district for West Virginia, the Huntington District of the Corps has published proposed regional conditions for the draft 2026 NWPs described in the attached Federal Register Notice for public comment (the regional conditions published by the Huntington District would apply to the entire state, including the Pittsburgh District jurisdiction of the state). We will provide a description and copy of the proposed West Virginia regional NWP conditions under a separate e-mail.

Reissuance of the programmatic NWP program also requires state CWA Section 401 water quality certification of the specific general permits https://www.ecfr.gov/current/title-40/chapter-I/subchapter-D/part-121 and https://www.ecfr.gov/current/title-33/chapter-II/part-330/section-330.4 The West Virginia Department of Environmental Protection (WV DEP) is currently preparing a proposed state certification package for the 2026 NWPs. WV DEP’s proposed 401 certification will be published for a state public notice and comment period shortly.

NOTE: the attached proposed NWPs are separate from the Regional General Permit and Letter of Permission proposed earlier this month by the Corps for energy projects in West Virginia. The comment period on those proposals closes on Friday of next week. See previous emails dated June 6, 2025 that are attached below.

June 6, 2025

TO: WVCA General Membership

WVCA Environmental-Technical Committee

FROM: Jason Bostic

Re: Proposed CWA Section 404 Letter of Permission for West Virginia: Review / Response Requested / Public Comment Period

On Wednesday, the U.S. Army Corps of Engineers (Corps) published a proposed programmatic Letter of Permission (LOP) to permit energy related activities that would require federal Clean Water Act (CWA) Section 404 authorization. LOPs are contemplated by the Corps’ existing regulations https://www.ecfr.gov/current/title-33/chapter-II/part-325/section-325.5 and their use to facilitate energy-related projects was announced by the agency in April of this year in response to several Executive Orders issued by President Trump (see original e-mails attached below and the second attachment). Under LOPs, District Engineers can authorize projects, subject to specific limitations, without publishing an individual public notice for the project.

As drafted for public comment, the proposed LOP would be available for energy-related projects in West Virginia that would impact no more than two acres of federal jurisdictional waters. “Energy related activities” is further defined in the terms and conditions of the proposed permit and specifically includes “Coal Mining Activities” that are defined as “activities already authorized, or which are currently being processed with the approved program in West Virginia under Title V of the Surface Mining Control and Reclamation Act…” LOPs must comply with CWA Section 404(b)(1) guidelines, require appropriate compensatory mitigation to offset stream and wetland losses and are subject to the discretion of the District Engineer: they may require a different permitting mechanism based on a review of the project’s potential impacts.

A copy of the proposed LOP is provided as the first attachment to this email and is also available at https://d34w7g4gy10iej.cloudfront.net/pubs/pdf_73254.pdf

Like the proposed Regional General Permit (e-mailed yesterday), the Corps has established 60 days as a “Reasonable Period of Time” for the West Virginia Department of Environmental Protection (WV DEP) to respond to a request for state CWA 401 certification of an energy related LOP. (see 40 CFR 121.6 https://www.ecfr.gov/current/title-40/chapter-I/subchapter-D/part-121/subpart-A/section-121.6 and WV DEP’s 401 certification rules at https://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=25746&Format=PDF ). Under the proposed LOP, the Corps would deem certification waived if WV DEP failed to respond / issue a 401 permit in the 60-day period.

The proposed LOP was published by the Corps’ Huntington District acting as the lead district for West Virginia- if finalized the RGP will also apply in the Pittsburgh District jurisdiction of the state.

The comment period on the proposed West Virginia LOP closes on July 5, 2025.

Please review the proposed LOP, with particular attention to the proposed terms and conditions attached to the proposed permit and respond with any concerns or comments that you may have.

Please give us a call if you have any questions or need any further information.

-Jason