MEMORANDUM OF UNDERSTANDING
           AMONG THE U.S. OFFICE OF SURFACE MINING, 
             U.S. ENVIRONMENTAL PROTECTION AGENCY, 
                 U.S. ARMY CORPS OF ENGINEERS, 
AND    WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION
                                
FOR THE PURPOSE OF CLARIFYING THE APPLICATION OF REGULATIONS RELATED TO STREAM BUFFER ZONES
      UNDER THE SURFACE MINING CONTROL AND RECLAMATION ACT
FOR SURFACE COAL MINING OPERATIONS THAT RESULT IN VALLEY FILLS 
                                




I.     INTRODUCTION
     
       The purpose of this Memorandum of Understanding (MOU) is to clarify the application
of regulations related to stream buffer zones under the Surface Mining Control and Reclamation
Act (SMCRA) for surface coal mining operations resulting in the placement of excess spoil fills
in waters of the United States1.  This agreement is consistent with, and furthers the objectives of,
the MOU signed by the agencies on April 7, 1999.  The signatory agencies entered into that
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 mountaintop mining
operations and associated valley fills.


II.  SCOPE AND APPLICABILITY
     
       Section 404 of the Clean Water Act (CWA) authorizes the U.S. Army Corps of Engineers
(Corps) to permit the discharge of dredged or fill material into waters of the U.S., including
wetlands.  Discharges of excess spoil fill in waters of the U.S. from surface coal mining
operations resulting in only 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 Corps
has the responsibility to review applications and to make decisions whether to authorize permits
for Section 404 regulated discharges, including discharges of excess spoil material.  The U.S.
Environmental Protection Agency (EPA) shares responsibility under Section 404 to promulgate
environmental standards under Section 404(b)(1), and to coordinate with the Corps in the review
of Section 404 permit applications.  

  West Virginia Division of Environmental Protection (WVDEP), with technical assistance
and/or oversight, as appropriate, from the U.S. Office of Surface Mining (OSM), is responsible
for the review of applications for, and authorization of, permits to engage in surface mining and
reclamation activities pursuant to the West Virginia Surface Coal Mining and Reclamation Act. 
Additionally, WVDEP is responsible for the review of applications and authorization of permits
for discharges of pollutants into waters of the U.S. under the National Pollutant Discharge
Elimination System (CWA Section 402), including pollutants discharged from surface mining
operations.  Consistent with existing regulations, guidance, and policies, EPA coordinates with
WVDEP in the review of these permit applications.

  OSM regulations establish certain requirements related to the disturbance of stream buffer
zones by coal mining operations.  30 C.F.R. Section 816.57, 817.57.  These regulations prohibit
disturbance within 100 feet of a perennial or intermittent stream (as defined by SMCRA) by
surface mining activities, unless the Director specifically authorizes such activities closer to, or
through, the stream (i.e., a stream buffer variance).  In order to receive a variance from the stream
buffer requirement, the regulatory authority must make several findings, including that the
activity will not cause or contribute to a violation of applicable State or Federal water quality
standards and will not adversely affect the water quantity and quality or other environmental
resources of the stream.  In addition, WVDEP's stream buffer zone regulations (38 CSR 2-5-2.a)
also provide that among these findings are that the mining activities will not adversely affect the
normal flow or gradient of the stream or fish migration.

  Requirements comparable to the above buffer zone regulations are contained in the
Section 404(b)(1) Guidelines. 40 C.F.R. Part 230.  For example, Section 404 regulations state,
among other things, that a discharge shall not be authorized if it will cause or contribute to a
violation of State water quality standards or result in significant degradation of waters of the U.S. 
40 C.F.R. Sections 230.10(b) and (c).  In considering whether a discharge will cause significant
degradation, the permitting authority under Section 404 considers a wide range of environmental
factors related to the impacts on the aquatic ecosystem.  See 40 C.F.R. Section 230.10 and
Subparts C-F.  Any Section 404 individual permit (or any Section 404 general permit itself, as
distinguished from a specific activity authorized by a general permit) is subject to the
requirement to obtain certification by the State in which the discharge originates that the
discharge complies with State water quality standards.  CWA Section 401(a). 

  As reflected in the April 7, 1999 MOU, we are seeking to enhance effective coordination
and timeliness in the evaluation of proposals to discharge excess spoil fills in waters of the U.S.,
while ensuring effective protection of the State's human health and environment.  In view of the
comparable requirements discussed above under the SMCRA and Section 404 regulatory
programs, OSM and WVDEP believe that, where a proposed fill is consistent with the
requirements of the Section 404(b)(1) Guidelines and applicable requirements for Section 401
certification of compliance with water quality standards, the fill would also satisfy the criteria for
granting a stream buffer zone variance under SMCRA and WVDEP regulations.   For purposes
of this MOU, the Section 404(b)(1) Guidelines evaluation is applicable to consideration of
potential direct, indirect, and cumulative adverse environmental impacts associated with the
placement of fill material in waters of the United States (e.g., the valley fill, sediment pond dam).


III.      INTERAGENCY COORDINATION PROCEDURES

  As established in the April 7, 1999, MOU, WVDEP will notify the Federal agencies of
permit applications proposing to conduct surface coal mining operations resulting in the
discharge of excess spoil fills into waters of the U.S.  As a general matter, in circumstances
where a proposed application includes one or more excess spoil disposal sites in waters of the
U.S. that would affect a watershed draining 250 acres or more, the Corps will advise the permit
applicant to submit an application for authorization under a CWA Section 404 individual permit
so that the permit reviews under SMCRA and CWA may proceed simultaneously (consistent
with the April 7, 1999, MOU, the data for the permit reviews will be collected and shared in a
manner that reduces duplication and increases efficiency).  The Corps will conduct an evaluation
of the proposed project to determine if proposed discharges in waters of the U.S. are consistent
with the Section 404(b)(1) Guidelines provisions, particularly regarding applicable State water
quality standards and potential significant degradation of waters of the U.S.  Documentation of
compliance with Section 404 will be provided to WVDEP, which will incorporate the findings to
satisfy their determination that the stream buffer zone variance under SMCRA has been met,
prior to issuance of the final authorization under SMCRA. 30 C.F.R. Section 816.57, 817.57. 
WVDEP is also responsible for certifying that such discharges are consistent with State Water
Quality Standards under CWA Section 401.

  As a general matter, in circumstances where all valley fills proposed in the application
would affect watersheds draining less than 250 acres, the Corps will advise the permit applicant
that the proposed discharges may be eligible for authorization under a CWA Section 404 general
permit, typically Nationwide Permit (NWP) 21.  NWP 21 is applicable to discharges into waters
of the U.S. 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.  In making the stream buffer zone determination, WVDEP will include
in its review of the proposed project an analysis of whether the proposed discharges in waters of
the U.S. are consistent with the Section 404(b)(1) Guidelines provisions, particularly regarding
applicable State water quality standards and potential degradation of waters of the U.S.  In
addition, WVDEP will review the proposed project for compliance with all specific conditions of
its (June 12, 1997) Section 401 water quality certification for NWP 21. This Section 404 analysis
and Section 401 review will be the basis for a determination by WVDEP as to whether or not the
stream buffer zone variance under SMCRA and relevant State regulations has been met.  Upon
completion of this process, the WVDEP will provide the Corps with a copy of the State's
SMCRA permit.  The Corps will consider the SMCRA permit in completing its findings
pursuant to NWP 21 and forward a copy of the NWP authorization to WVDEP.

  Whether individual or general permit authorization, the record will show how the CWA
and SMCRA requirements pursuant to water quality/significant degradation and stream buffer
waiver are met, and in no circumstance will any discharge of fill material into waters of the U.S.
commence in advance of the CWA and SMCRA authorizations.  The Corps is responsible for
fully considering agency comments and for making a permit decision under CWA Section 404.


IV.  GENERAL

1.     Nothing in this MOU is intended to diminish, modify, or otherwise affect the MOU
       entered into by OSM, EPA, U.S. Fish and Wildlife Service, Corps, and the WVDEP on
       April 7, 1999.

2.     The policy and procedures contained in 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 judgment about the specific facts and application of
       relevant statues and regulations.

3.     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.

4.     Nothing in this MOU will be construed as indicating a financial commitment by OSM,
       the Corps, EPA, or WVDEP for the expenditure of funds except as authorized by law.


5.     This MOU will take effect on the date of the last signature below and will continue in
       effect until 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.





-------------------------------------Date_________                 -----------------------------Date_______
W.  Michael McCabe                                                          Allen D. Klein
Regional Administrator                                                       Regional Director, OSM
U.S. Environmental Protection Agency                               U.S. Department of the Interior




-------------------------------------Date_________                ------------------------------Date_______
Robert H. Griffin                                                     Michael C. Castle
Brigadier General, U.S. Army                                            Director
Commanding                                                              West Virginia Division of 
                                                                                     Environmental Protection