2011-10-11_HYDROLOGY - C1980006 - Laserfiche WebLink

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finalized and the bond release obtained. This identical situation applies to the Kerr Coal sediment pond. Our professional opinion is that it is unnecessary to look for possible wetland vegetation within a temporary sediment pond as this completely ignores the "permanence" test required by both the ACOE regulations and RGL 90 -07 and which has been extended by RGL 05 -06, which states that RGL's which "continue to provide important direction on a particular matter ... " are still valid. We request that the ACOE and CDRMS identify the types of information you plan on collecting during this 15 minute site inspection and explain how this information will be applied to resolve the issue of whether "jurisdicitonal wetlands" exist within the sediment pond or whether filling them will trigger an additional 404 permitting action. We know of no data that can be collected within a 15 minute period which will address this issue. We remind you of 33 CFR Part 328.3 Definitions which was originally brought to our attention by Mr. Terry McKee in a telephone conversation of 12 August 2011, which states "Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA ... are not waters of the United States." A review of the federal Office of Surface Mining regulations as originally published in the Federal Register of 13 March 1979 references the Clean Water Act extensively as to why the hydrologic protection provisions of the federal Office of Surface Mining and Reclamation regulations and specifically the requirement to construct sediment ponds and other sediment control measures were enacted. Page 15150 of these regulations' states: "Under Sections 301, 304, and 401 of the Clean Water Act, coal mining operations must obtain NPDES permits and comply with EPA's effluent limitation regulations." Kerr Coal obtained the NPDES Permit required by the Clean Water Act and has operated under the same since 1979. The preamble to the Corps of Engineers regulations states on page 41217 of the 13 November 1986 Federal Register that "we generally do not consider the following waters to be `Waters of the United States.' "Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States (see 33 CRF 328.3(a)." Yes, "the Corps reserves the right on a case -by -case basis to determine that a particular waterbody within these categories of water is a water of the United States." However, for Kerr Coal to evaluate this situation, we request that both the ACOE and CDRMS submit adequate documentation as to why the preponderance of regulatory guidance is ignored and a new interpretation is applied to the sediment pond located at the Kerr Tipple site. We are also very confused as to why the ACOE regulations which specifically exempt "treatment ponds" or in this situation "sediment ponds" specifically constructed to satisfy "Sections 301, 304, and 401 of the Clean Water Act" must now be inspected to determine whether "jurisdictional wetlands" exist in these areas and whether a new 404 Permit must be obtained to backfill these areas. We would ask that both the ACOE and CDRMS provide an explanation why the "sediment ponds" constructed on previously placed fill, are not exempt from regulation. Please provide written clarification as to why these mandated "sediment ponds" which clearly have not been "abandoned" as defined in RGL- 90 -07, for a period of "five years" following the cessation of all "management, maintenance activities" and are still under formal reclamation bond with the CDRMS, must now be inspected to determine whether "jurisdictional