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26 September 2006
[Federal Register: September 26, 2006 (Volume 71, Number 186)]
[Notices]
[Page 56257-56299]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se06-150]
[[Page 56257]]
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Part III
Department of Defense
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Department of the Army, Corps of Engineers
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Proposal To Reissue and Modify Nationwide Permits; Notice
[[Page 56258]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
[ZRIN 0710-ZA02]
Proposal To Reissue and Modify Nationwide Permits
AGENCY: Army Corps of Engineers, DoD.
ACTION: Notice.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) is soliciting
comments for the reissuance of the existing nationwide permits (NWPs),
general conditions, and definitions, with some modifications. The Corps
is also proposing to issue six new NWPs and one new general condition.
The reissuance process starts with today's publication of the proposed
NWPs in the Federal Register for a 60-day comment period. The purpose
of this Federal Register notice is to solicit comments on the proposed
new and modified NWPs, as well as the NWP general conditions and
definitions. Shortly after the publication of this Federal Register
notice, each Corps district will publish a public notice to solicit
comments on their proposed regional conditions for the new and modified
NWPs. The comment period for these district public notices will be 45
days.
DATES: Submit comments on or before November 27, 2006.
ADDRESSES: You may submit comments, identified by docket number COE-
2006-0005 and/or ZRIN 0710-ZA02, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: david.b.olson@usace.army.mil. Include the docket number,
COE-2006-0005, and/or the ZRIN number, 0710-ZA02, in the subject line
of the message.
Fax: 202-761-0140.
Mail: U.S. Army Corps of Engineers, Attn: CECW-OR/MVD (David B.
Olson), 441 G Street NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: Direct your comments to docket number COE-2006-0005
and/or ZRIN 0710-ZA02. All comments received will be included in the
public docket without change and may be made available on-line at
http://www.regulations.gov, including any personal information
provided, unless the commenter indicates that the comment includes
information claimed to be Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute. Do not
submit information that you consider to be CBI, or otherwise protected,
through regulations.gov or e-mail. The regulations.gov Web site is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an e-mail directly to the Corps without going through
regulations.gov, your e-mail address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the Internet. If you submit an electronic comment, we
recommend that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If we
cannot read your comment because of technical difficulties and cannot
contact you for clarification, we may not be able to consider your
comment. Electronic comments should avoid the use of any special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: For access to the docket to read background documents or
comments received, go to regulations.gov. All documents in the docket
are listed. Although listed in the index, some information is not
publicly available, such as CBI or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form.
Consideration will be given to all comments received within 60 days
of the date of publication of this notice.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by
e-mail at david.b.olson@usace.army.mil or access the U.S. Army Corps of
Engineers Regulatory Home Page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/
.
SUPPLEMENTARY INFORMATION:
Background
The current nationwide permits (NWPs), which were published in the
January 15, 2002, issue of the Federal Register (67 FR 2020) expire on
March 18, 2007. With this Federal Register notice, we are beginning the
process for reissuing the NWPs so that the reissued NWPs will be in
effect as the current NWPs expire.
Section 404(e) of the Clean Water Act provides the statutory
authority for the Secretary of the Army, after notice and opportunity
for public hearing, to issue general permits on a nationwide basis for
any category of activities involving discharges of dredged or fill
material into waters of the United States. Activities authorized by
NWPs must be similar in nature, cause only minimal adverse
environmental effects when performed separately, and cause only minimal
cumulative adverse effect on the aquatic environment. Nationwide
permits can also be issued to authorize activities pursuant to Section
10 of the Rivers and Harbors Act of 1899. The NWP program is designed
to provide timely authorizations for the regulated public while
protecting the Nation's aquatic resources.
One goal of today's notice is to simplify the text of the reissued
NWPs. Since NWPs were first issued in 1977, the NWP program has become
increasingly complex. With each issuance or reissuance of NWPs, the
text of the permits and the general conditions has become lengthier,
and in some cases, redundant language was added that may make them more
difficult to comprehend. Compliance with the NWPs and their general
conditions is more difficult if users of those permits cannot easily
understand the requirements of the NWPs and what they authorize.
Simplifying the text will facilitate compliance with the NWPs and thus
help protect the aquatic environment.
Federal agencies are required by Executive Order 12866, Regulatory
Planning and Review, to draft regulations that are simple and easy to
understand, to minimize uncertainty. This principle is also applicable
to the NWPs, which are now considered to be rules under the
Administrative Procedures Act (APA). In addition, a Presidential
Memorandum issued on June 1, 1998, requires Federal agencies to use
plain language in government writing, so that rules and other documents
are clear to the public and others.
We are proposing to revise the text of the NWPs, general
conditions, and definitions so that they are clearer, more concise, and
can be more easily understood by the regulated public, government
personnel, and interested parties, while retaining terms and conditions
that protect the aquatic environment. Making the text of the NWPs
clearer and easier to understand will also facilitate compliance with
these permits, which will benefit the aquatic environment. This
proposal also reflects the Corps support of the administration's goal
of improving regulatory efficiency, by making the
[[Page 56259]]
NWPs easier to read and understand. The text of the proposed NWPs has
been streamlined by removing redundant language and applying a standard
format to most NWPs. We are proposing to arrange the NWP general
conditions in a different order, so that the conditions that provide
environmental protection are first, followed by administrative and
procedural general conditions.
Today's proposal to reissue the existing NWPs with some
modifications and to issue six new NWPs reflects the Corps commitment
to its environmental protection mission and to aquatic resource
protection. The NWP program allows the Corps to authorize activities
with minimal adverse environmental impacts in a timely manner and
protect the aquatic environment. The NWP program also allows the Corps
to focus its limited resources on more extensive evaluation of projects
that have the potential for causing environmentally damaging adverse
effects.
Through the NWPs, impacts to the aquatic environment may also
receive additional protection through regional conditions, case-
specific special conditions, and case-specific discretionary authority
to require individual permits. Nationwide permits and other general
permits help protect the aquatic environment because permit applicants
often reduce project impacts to meet the restrictive requirements of
general permits and receive authorization more quickly than they would
through the individual permit process.
Twenty-six of the NWPs proposed for reissuance require pre-
construction notification (PCN) for certain activities. Fifteen of
those NWPs require PCNs for all activities. Four of the six proposed
new NWPs require PCNs. Three of those four new NWPs require PCNs for
all activities. Altogether, PCN requirements have been added or
expanded for seven permits, relative to the requirements in the current
permits. Existing PCN requirements have been dropped in one permit (NWP
5), and reduced in another (NWP 12), because the conditions for
authorization under these permits are adequate to ensure minimal
individual and cumulative effects without the previously required PCNs.
PCN requirements give the Corps the opportunity to evaluate certain
proposed NWP activities on a case-by-case basis to ensure that they
will have no more than minimal adverse effects on the aquatic
environment, individually and cumulatively. This case-by-case review
often results in adding case-specific conditions to the NWP
authorization to ensure that impacts to the aquatic environment are
minimal. Review of PCNs may also result in the Corps asserting
discretionary authority to require an individual permit if the district
engineer determines, based on the information provided in the
notification, that adverse impacts will be more than minimal, either
individually or cumulatively, or there are sufficient concerns for any
of the Corps public interest review factors.
Regional conditions may be imposed by division engineers to take
into account regional differences in aquatic resource functions and
services across the country and to restrict the use of NWPs to protect
those resources. Through regional conditions, a division engineer can
modify an NWP to require submission of PCNs for certain activities.
Regional conditions may also restrict or prohibit the use of an NWP in
certain waters or geographic areas, if the use of that NWP in those
waters or areas might result in more than minimal individual or
cumulative adverse effects to the aquatic environment.
District engineers may impose special conditions on NWP
authorizations to ensure that the NWP authorizes only activities that
result in minimal individual and cumulative effects on the aquatic
environment and are in the public interest. In addition, special
conditions will often include compensatory mitigation requirements to
reduce the project impacts to the minimal level. Compensatory
mitigation may include the restoration, establishment, enhancement,
and/or preservation of aquatic habitats, as well as the establishment
and maintenance of riparian areas next to streams and other open
waters. Compensatory mitigation can be provided through permittee-
responsible mitigation, mitigation banks, or in-lieu fee programs.
Process for Reissuing the NWPs
The NWPs reissued on January 15, 2002, became effective on March
18, 2002, and expire on March 18, 2007. The reissuance process starts
with today's publication of the proposed NWPs in the Federal Register
for a 60-day comment period. Requests for a public hearing must be
submitted in writing to the address in the ADDRESSES section of this
notice. These requests must state the reason(s) for holding a public
hearing. If we determine that a public hearing or hearings would assist
in making a decision on the issuance of the proposed new NWPs,
reissuance of existing NWPs, or the NWP general conditions or
definitions, a 30-day advance notice will be published in the Federal
Register to advise interested parties of the date(s) and location(s)
for the public hearing(s). Any announcement of public hearings would
also be posted as a supporting material in the docket at
www.regulations.gov as well as the Corps regulatory home page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/citizen.htm
Concurrent with this Federal Register notice, Corps district
offices will issue public notices to solicit comments on proposed
regional conditions. In their district public notices, district
engineers may also propose to suspend or revoke some or all of these
NWPs if they have issued, or are proposing to issue, regional general
permits, programmatic general permits, or section 404 letters of
permission for use in lieu of NWPs. The comment period for these
district public notices will be 45 days.
After the comment period has ended, we will review the comments
received in response to this Federal Register notice. Then we will
draft the final NWPs, and those final draft NWPs will be subjected to
another review by interested Federal agencies. The final issued NWPs
will be published in the Federal Register by January 2007. These final
NWPs will become effective 60 days after their publication. This
schedule provides a 60-day period for state and tribal Clean Water Act
Section 401 water quality certifications (WQCs), as well as state
Coastal Zone Management Act (CZMA) consistency decisions. Within this
60-day period, division engineers will also approve regional conditions
and issue supplemental decision documents. Supplemental decision
documents address the environmental considerations related to the use
of NWPs in a Corps district. The supplemental decision documents will
certify that the NWPs, with any regional conditions or geographic
revocations, will only authorize activities within that Corps district
that result in minimal individual and cumulative adverse effects on the
aquatic environment. The regional conditioning and WQC/CZMA processes
are discussed below.
Compliance With Section 404(e) of the Clean Water Act
The proposed NWPs are issued in accordance with Section 404(e) of
the Clean Water Act. These NWPs authorize categories of activities that
are similar in nature. The ``similar in nature'' requirement does not
mean that activities authorized by an NWP must be identical to each
other. We believe that the ``categories of activities that are similar
in nature'' requirement of section 404(e) is to be interpreted broadly,
for practical implementation of
[[Page 56260]]
this general permit program. Nationwide permits, as well as other
general permits, are intended to reduce administrative burdens on the
Corps and the regulated public, by efficiently authorizing activities
that have minimal adverse environmental effects.
As for the minimal adverse effects provision of section 404(e), the
various terms and conditions of these NWPs, including the provisions in
the NWP regulations at 33 CFR 330.1(d) and 33 CFR 330.4(d) that allow
district engineers to exercise discretionary authority, ensure
compliance with this requirement. A decision document will be prepared
for each NWP to address the requirements of the National Environmental
Policy Act and generally discuss the anticipated impacts the NWP will
have on the Corps public interest review factors. For those NWPs that
may authorize discharges of dredged or fill material into waters of the
United States, a 404(b)(1) Guidelines analysis will be provided in the
decision document. The 404(b)(1) Guidelines analysis will be conducted
in accordance with the procedures at 40 CFR 230.7. The preliminary
decision documents for the proposed NWPs are available on the internet
at: http://www.regulations.gov (docket ID number COE-2006-0005). We are
soliciting comments on these preliminary decision documents, and any
comments received will be considered when preparing the final decision
documents for the NWPs.
Decision of U.S. Court of Appeals for the District of Columbia Circuit
In its July 29, 2005, decision in National Association of
Homebuilders v. U.S. Army Corps of Engineers (Nos. 04-5009, 04-5010,
and 04-5011), the U.S. Court of Appeals for the District of Columbia
Circuit determined that NWPs are rules under the APA, and are subject
to the Regulatory Flexibility Act (RFA). In the ``Administrative
Requirements'' section of this preamble, we have addressed the
requirements of the RFA. We have also performed other rulemaking
analyses that are required by other statutes and executive orders.
Those analyses are also provided in the ``Administrative Requirements''
section of this preamble.
National Environmental Policy Act Compliance
We have prepared preliminary decision documents for each proposed
NWP. Each decision document contains an environmental assessment (EA)
and a Finding of No Significant Impact (FONSI). If the proposed NWP
authorizes discharges of dredged or fill material into waters of the
United States, the decision document will include a 404(b)(1)
Guidelines analysis in accordance with 40 CFR 230.7. These decision
documents will consider the environmental effects of each NWP from a
national perspective. Division engineers will issue supplemental
decision documents to evaluate regional effects on the aquatic
environment and other public interest review factors. Those
supplemental decision documents will discuss regional conditions
imposed by division engineers to protect the aquatic environment and
ensure that any adverse effects resulting from NWP activities will be
no more than minimal.
The assessment of cumulative effects occurs at two levels: national
and regional (district). However, modifications at the district level
are issued by the appropriate division engineer. There are eight Corps
division offices in the United States, with 38 district offices. A
division office may oversee as many as seven districts (Lakes and
Rivers Division) or as few as two district offices (Pacific Ocean
Division).
At the national level, the decision documents issued by Corps
Headquarters include the cumulative effects assessments required by
NEPA and, if the NWP authorizes discharges of dredged or fill material
into waters of the United States, the 404(b)(1) Guidelines. The
404(b)(1) Guidelines at 40 CFR 230.7(b) require an evaluation of the
potential individual and cumulative impacts of the category of
activities authorized under the NWP.
The supplemental decision documents issued by division engineers
include cumulative effects assessments at the regional (district)
level, for each district within the division. For those NWPs that
authorize section 404 activities, the supplemental decision documents
will also discuss local concerns relating to the Section 404(b)(1)
Guidelines, if the national decision documents do not adequately
address those issues. If the NWP is not revoked in a district, the
supplemental decision document includes a certification that the use of
the NWP in that district, with any applicable regional conditions
(i.e., applicable in a specific district), will result in minimal
cumulative adverse environmental effects. The supplemental decision
documents are prepared by Corps districts, but must be approved and
formally issued by the appropriate division engineer, since the NWP
regulations at 33 CFR 330.5(c) state that the division engineer has the
authority to modify, suspend, or revoke NWP authorizations for any
specific geographic area within his division. Regional conditions are
considered NWP modifications. Therefore, when the process is completed,
each district will have approved supplemental decision documents for
each NWP, and those supplemental decision documents will assess
cumulative effects within that district.
District engineers may also recommend that the division engineer
exercise discretionary authority to modify, suspend, or revoke case-
specific NWP authorizations within a district to ensure that only
minimal cumulative adverse effects on the aquatic environment result
from activities authorized by that NWP. Evaluations by a district
engineer may result in the division engineer modifying, suspending, or
revoking NWP authorizations in a particular geographic region or
watershed at a later time, if the use of an NWP in a particular area
will result in more than minimal cumulative or individual adverse
effects on the aquatic environment. Special conditions added to NWP
authorizations on a case-by-case basis by district engineers, such as
compensatory mitigation requirements, help ensure that the NWPs
authorize only activities that result in minimal individual and
cumulative adverse effects on the aquatic environment.
Acreage Limits and Pre-Construction Notification Thresholds
We are proposing to retain the current acreage limits for the NWPs,
although we are seeking comment on adding an acreage limit for NWP 21,
which currently has no acreage limit. We are also proposing to move the
provisions of NWP 39 that authorize residential developments to NWP 29
and place a \1/2\ acre limit on the proposed NWP 29. Currently NWP 29
has a \1/4\ acre limit for single unit residences, but this NWP can be
used in all non-tidal waters, including non-tidal wetlands that are
adjacent to tidal waters. Single unit residential projects are also
permitted to use NWP 39, with a \1/2\ acre limit, if they affect only
non-tidal waters, but NWP 39 cannot be used to authorize these
activities in non-tidal wetlands adjacent to tidal waters. The revised
NWP 29 will have a \1/2\ acre limit, but will only authorize discharges
into non-tidal waters, and this NWP could not be used to authorize
discharges in non-tidal wetlands that are adjacent to tidal waters. All
residential projects impacting non-tidal wetlands adjacent to tidal
waters, including single unit residences, will now require
authorization by individual permit or
[[Page 56261]]
regional general permit. The Corps believes this additional level of
environmental protection is warranted for non-tidal wetlands adjacent
to tidal waters because of concerns regarding environmental impacts of
residential development in coastal areas.
Proposed NWP A, Emergency Repair Activities, has no explicit
acreage limit but will be limited to restoring damaged structures,
fills, or uplands to the pre-event ordinary high water mark, in cases
where regulated activities in waters of the United States are necessary
to conduct the restoration. Proposed NWP B, which would authorize
discharges in certain types of ditches and canals, has a one acre
limit, and proposed NWP C has no acreage limit for conducting time-
sensitive repairs of pipelines. Proposed NWP D, Commercial Shellfish
Aquaculture Activities, is limited to existing aquaculture activities.
The Corps is seeking comment on whether an acreage limit or some other
type of limit (e.g., on the total volume of fill material that may be
discharged) is needed to ensure that these existing activities have no
more than minimal adverse effects. As proposed, this NWP will require a
PCN if the activity covers more than 25 acres, or if more than 10 acres
is covered with submerged aquatic vegetation. The proposed NWP
authorizing coal remining activities (NWP E) is limited to sites where
more than 60 percent of the site was previously mined. Proposed NWP F,
which authorizes underground coal mining activities, has a \1/2\ acre
limit. We are seeking comments on the proposed limits for these NWPs.
We are proposing to simplify the PCN thresholds for NWP 12 by
reducing the number of criteria triggering the requirement to submit
PCNs from seven to two, since the \1/10\ acre PCN threshold will
normally capture the activities addressed by the PCN thresholds we are
proposing to remove. For NWP 13, PCNs will be required for proposed
activities that involve discharges of dredged or fill material into
special aquatic sites. We are also proposing to eliminate the PCN
thresholds for NWPs 39, 40, 42, and 43. All activities authorized by
these permits will now require PCNs.
We are proposing to remove the PCN requirement for NWP 5, which
authorizes scientific measuring devices, and rely on the current 25
cubic yard limit for discharges of dredged or fill material to ensure
that the NWP authorizes only activities with minimal individual and
cumulative adverse effects on the aquatic environment. We are also
proposing to drop some of the PCN requirements for special situations
under NWP 12. Specifically, PCNs would no longer be required for: (1)
Mechanized landclearing of forested wetlands in the utility line right-
of-way; (2) utility lines constructed in waters of the United States
that are greater than 500 linear feet in length; (3) utility lines
constructed in waters of the United States where the utility line is
parallel to a stream; (4) permanent access roads constructed in waters
of the United States for a distance of greater than 500 feet; and (5)
permanent access roads constructed in waters of the United States with
impervious materials, provided the total losses of waters of the United
States are less than \1/10\ acre. For those NWP activities that do not
require submission of PCNs to district engineers, division engineers
can impose regional conditions to require PCNs. We are soliciting
comments on the proposed PCN thresholds for the NWPs.
Ephemeral Streams
On June 19, 2006, the Supreme Court issued its decision in the case
of Rapanos et ux, et al, v. United States. This decision raises
questions about the jurisdiction of the Clean Water Act, including
Section 404, over some intermittent and ephemeral streams and their
adjacent wetlands. The Corps will assess jurisdiction regarding such
waters on a case-by-case basis in accordance with evolving case law and
any future guidance that may be issued by appropriate Executive Branch
agencies (e.g., the Department of Justice). The discussion that follows
applies to all ephemeral and intermittent streams and adjacent wetlands
that remain jurisdictional following Rapanos.
We are proposing to provide greater protection for ephemeral
streams. For those NWPs that have a 300 linear foot limit for the loss
of stream bed, we are proposing to apply that linear foot limit to
perennial, intermittent, and ephemeral streams. The 300 linear foot
limit is found in the terms of NWPs 29, 39, 40, and 42. For proposed
activities resulting in the loss of more than 300 linear feet of
intermittent and/or ephemeral stream bed, the district engineer can
waive the linear foot limit, if he determines that the proposed
activity will result in minimal individual and cumulative adverse
effects on the aquatic environment. Waivers of the 300 linear foot
limit for the loss of intermittent and ephemeral streams must be in
writing.
In the 2002 NWPs, the 300 linear foot limit applied only to
perennial and intermittent stream beds, and the 300 linear foot limit
could be waived for losses of intermittent stream bed. A waiver could
not be issued for impacts resulting in the loss of greater than 300
linear feet of perennial streams (and we are not proposing to change
this provision). For ephemeral streams, no waiver process was necessary
because impacts to ephemeral streams were not counted towards the 300
linear foot limit for determining compliance with the NWPs.
Applying the linear foot limit to losses of ephemeral stream bed
will also simplify administration of the NWP program. It is often
difficult to distinguish between intermittent and ephemeral streams in
the field. By applying the same thresholds and limits to impacts
resulting in the loss of intermittent and ephemeral streams, it will
not be necessary to identify which stream reaches are intermittent and
which are ephemeral. Many topographic maps do not show the locations of
intermittent and ephemeral streams, which results in greater reliance
on site visits or information from permit applicants to implement
permit conditions related to the 300 linear foot limit.
For those NWPs that have both an acreage limit and a linear foot
limit for stream bed impacts, the acreage of stream impacts (i.e., the
length of the stream bed filled or excavated times the average width of
the stream, from OHWM to OHWM) applies towards that acreage limit. For
example, if a proposed NWP 39 activity involves filling \1/10\ acre of
non-tidal wetlands and 100 linear feet of a stream bed with an average
width of 10 feet, the acreage loss of waters of the United States for
that activity is 0.123 acre.
As discussed below, we are also proposing to modify the definition
of ``loss of waters of the United States'' to include filling or
excavating of ephemeral stream beds when determining whether proposed
activities exceed the threshold limits of the NWPs.
Compliance With the Endangered Species Act
In its April 6, 2005, decision in National Wildlife Federation et
al. v. Les Brownlee (No. 03-1392), the U.S. District Court for the
District of Columbia determined that the Corps is obligated to consult
with the U.S. Fish and Wildlife Service on the effects of the NWPs. In
response to that decision, the Corps will conduct Endangered Species
Act Section 7(a)(2) consultation. Corps districts will consult with the
U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries
Service (NMFS) for the species that occur in their districts.
[[Page 56262]]
Essential Fish Habitat
The NWP Program's compliance with the essential fish habitat (EFH)
consultation requirements of the Magnuson-Stevens Fishery Conservation
and Management Act will be achieved through EFH consultations between
Corps districts and NMFS regional offices. Corps districts will request
EFH consultations with the NMFS regional office in cases where
activities authorized by NWP may adversely affect EFH. The purpose of
these regional consultations is to determine if implementation of the
proposed NWPs and regional conditions within a particular region may
have an adverse effect on EFH. These consultations will be conducted
according to the EFH consultation regulations at 50 CFR 600.920.
Regional Conditioning of Nationwide Permits
Under Section 404(e), NWPs can only be issued that result in no
more than minimal individual and cumulative adverse effects on the
aquatic environment. An important mechanism for ensuring compliance
with this requirement is an effective regional conditioning process.
Coordination with Federal and State agencies and Indian Tribes, and the
solicitation of public comments, assist division and district engineers
in identifying and developing appropriate regional conditions for the
NWPs. Effective regional conditions protect local aquatic ecosystems
and helps ensure that the NWPs authorize only those activities that
result in minimal individual and cumulative adverse effects on the
aquatic environment, and are in the public interest.
There are two types of regional conditions: (1) Corps regional
conditions and (2) water quality certification/Coastal Zone Management
Act consistency determination regional conditions.
Corps regional conditions may be added to NWPs by division
engineers after a public notice and comment process and coordination
with other Federal, State, and local agencies.
Examples of Corps regional conditions include:
Restricting the types of waters of the United States where
the NWPs may be used (e.g., fens, bogs, bottomland hardwoods, etc.) or
prohibiting the use of some or all of the NWPs in those types of waters
or in specific watersheds.
Restricting or prohibiting the use of NWPs in an area
covered by a Special Area Management Plan, or an Advanced
Identification study with associated regional general permits.
Adding pre-construction notification (PCN) requirements to
NWPs to require notification for all work in certain watersheds or
certain types of waters of the United States, or lowering the PCN
threshold.
Reducing NWP acreage limits in certain types of waters of
the United States, or specific waterbodies;
Revoking certain NWPs on a geographic or watershed basis;
Restricting activities authorized by NWPs to certain times
of the year in a particular waterbody, to minimize the adverse effects
of those activities on fish or shellfish spawning, wildlife nesting, or
other ecologically cyclical events.
Conditions necessary to ensure compliance with the
Endangered Species Act and essential fish habitat provisions of the
Magnuson-Stevens Fishery Conservation and Management Act.
Corps regional conditions approved by division engineers cannot
remove or weaken any of the terms and conditions of the NWPs, including
general conditions and pre-construction notification requirements. In
other words, Corps regional conditions can only be more restrictive
than the original NWP terms and conditions.
Regional conditions may also be added to the NWPs as a result of
water quality certifications (WQCs) issued by states, Indian Tribes, or
the U.S. EPA, as well as state Coastal Zone Management Act (CZMA)
consistency determinations.
At approximately the same time as the publication of this Federal
Register notice, each Corps district will issue an initial public
notice. Those initial public notices will include Corps regional
conditions proposed by our district offices, and will also request
comments or suggestions for additional Corps regional conditions. The
initial public notice may also include, for informational purposes
only, any proposed state or tribal WQC/CZMA regional conditions.
However, public comment on the state or tribal WQC/CZMA regional
conditions is handled through a separate state or tribal administrative
procedures process. The public should not address such comments to the
Corps.
In response to the district's initial public notice, interested
parties may suggest additional Corps regional conditions, or suggest
suspension or revocation of NWPs in certain geographic areas, such as
specific watersheds or waterbodies. Such comments should include data
to support the need for any suggested modifications, suspensions, or
revocations of NWPs.
Before the effective date of NWPs, the division engineer will issue
supplemental decision documents for each NWP. These supplemental
decision documents will address the NWP regional conditions. Each
supplemental decision document will also include a statement by the
division engineer, which will certify that the NWP, with approved
regional conditions, will authorize only activities with minimal
individual and cumulative adverse effects on the aquatic environment.
After the division engineer approves the Corps regional conditions,
each Corps district will issue a final public notice for the NWPs. The
final public notice will announce both the final Corps regional
conditions and any final WQC/CZMA regional conditions. The final public
notices will also announce the final status of water quality
certifications and CZMA consistency determinations for the NWPs. Corps
districts may adopt additional regional conditions in future public
notices (following public notice and comment), if they identify a need
for such conditions.
Information on regional conditions and revocation can be obtained
from the appropriate district engineer, as indicated below.
Furthermore, this and additional information can be obtained on the
Internet at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/district.htm
by clicking on the appropriate link for the Corps district
office.
In cases where a Corps district has issued a regional general
permit that authorizes similar activities as one or more NWPs, the
district will clarify the use of the regional general permit versus the
NWP(s) during the regional conditioning process. For example, the
division engineer may revoke the applicable NWP(s) so that only the
regional general permit may be used to authorize those activities.
Water Quality Certification/Coastal Zone Management Act Consistency
Determination for Nationwide Permits
State or Tribal water quality certification, or waiver thereof, is
required by Section 401 of the Clean Water Act, for activities
authorized by NWPs which result in a discharge into waters of the
United States. In addition, any state with a federally-approved CZMA
plan must agree with the Corps determination that activities authorized
by NWPs which are within, or will affect any land or water uses or
natural resources of the state's coastal zone, are
[[Page 56263]]
consistent with the CZMA plan to the maximum extent practicable. Water
quality certifications and/or CZMA consistency determinations may be
issued without conditions, issued with conditions, or denied for
specific NWPs.
We believe that, in general, the activities authorized by the NWPs
will not violate State or Tribal water quality standards and will be
consistent with state CZMA plans. The NWPs are conditioned to ensure
that adverse environmental effects will be minimal and address the
types of activities that would be routinely authorized if evaluated
under the individual permit process. We recognize that in some states
or Tribal lands there will be a need to add regional conditions, or
individual state or Tribal review for some activities, to ensure
compliance with water quality standards and/or consistency with CZMA
plans. As a practical matter, we intend to work with states and Tribes
to ensure that NWPs include the necessary conditions so that they can
issue water quality certifications or CZMA consistency concurrences.
Therefore, each Corps district will initiate discussions with their
respective state(s) and Tribe(s), as appropriate, to discuss issues of
concern and identify regional modification and other approaches to
address the scope of waters, activities, discharges, and PCNs, as
appropriate, to resolve these issues. Note that in some states the
Corps has issued state programmatic general permits (SPGPs), and within
those states some or all of the NWPs may be suspended or revoked by
division engineers. Concurrent with today's proposal, district
engineers may be proposing modification or revocation of the NWPs in
states where SPGPs will be used in place of some or all of the NWPs.
Section 401 of the Clean Water Act
This Federal Register notice serves as the Corps application to the
Tribes, States, or EPA, where appropriate, for water quality
certification of the activities authorized by these NWPs. The Tribes,
States, and EPA, where appropriate, are requested to issue, deny, or
waive water quality certification pursuant to 33 CFR 330.4(c) for these
NWPs.
If a state denies a water quality certification for an NWP within
that state, then the Corps will deny NWP authorization for the affected
activities within that state without prejudice. However, when
applicants request approval of such activities, and the Corps
determines that those activities meet the terms and conditions of the
NWP, the Corps will issue provisional NWP verification letters. The
provisional verification letter will contain general and regional
conditions as well as any project specific conditions the Corps
determines are necessary for NWP authorization. The Corps will notify
the applicant that they must obtain a project specific water quality
certification, or waiver thereof, before they are authorized to start
work in waters of the United States. That is, NWP authorization will be
contingent upon obtaining the necessary water quality certification or
waiver thereof from the State, Tribe, or EPA where appropriate. Anyone
wanting to perform such activities where pre-construction notification
to the Corps is not required has an affirmative responsibility to first
obtain a project-specific water quality certification or waiver thereof
from the Tribe, State, or EPA before proceeding under the NWP. This
requirement is provided at 33 CFR 330.4(c).
Section 307 of the Coastal Zone Management Act (CZMA)
This Federal Register notice serves as the Corps determination that
the activities authorized by these NWPs are, to the maximum extent
practicable, consistent with state CZMA programs. This determination is
contingent upon the addition of state CZMA conditions and/or regional
conditions, or the issuance by the state of an individual consistency
concurrence, where necessary. States are requested to agree or disagree
with the consistency determination following 33 CFR 330.4(d) for these
NWPs.
The Corps' CZMA consistency determination only applies to NWP
authorizations for activities that are within, or affect, any land,
water uses or natural resources of a State's coastal zone. NWP
authorizations for activities that are not within or would not affect a
State's coastal zone do not require a Corps CZMA consistency
determination and thus are not contingent on a State's agreement with
the Corps' consistency determinations.
If a State disagrees with the Corps consistency determination for
an NWP, then the Corps will deny authorization for the activities
within or that would affect the coastal zone without prejudice.
However, when applicants request approval of such activities, and the
Corps determines that those activities meet the terms and conditions of
the NWP, the Corps will issue provisional NWP verification letters. The
provisional verification letter will contain general and regional
conditions as well as any project specific conditions the Corps
determines are necessary for NWP authorization. The Corps will notify
the applicant that they must obtain a project specific CZMA consistency
determination before they are authorized to start work in waters of the
United States. That is, NWP authorization will be contingent upon
obtaining the necessary CZMA consistency concurrence from the State.
Anyone wanting to perform such activities where pre-construction
notification to the Corps is not required has an affirmative
responsibility to present a consistency certification to the
appropriate State agency for concurrence. Upon concurrence with such
consistency certifications by the state, the activity would be
authorized by the NWP. This requirement is provided at 33 CFR 330.4(d).
Nationwide Permit Verifications
Certain NWPs require the permittee to submit a PCN, and thus
request confirmation from the district engineer that an activity
complies with the terms and conditions of an NWP, prior to commencing
the proposed work. The requirement to submit a PCN is identified in the
NWP text. Pre-construction notification requirements may added to NWPs
by division engineers through regional conditions. In cases where pre-
construction notification is not required, a project proponent may
submit a PCN voluntarily, if he or she wants assurance that the
activity is authorized by an NWP. An NWP verification is a response to
a PCN that confirms that a particular activity is authorized by an NWP.
In response to an NWP verification request (PCN), the district
engineer reviews the information submitted by the prospective
permittee. If the district engineer determines that the activity
complies with the terms and conditions of the NWP, he will notify the
permittee. Special conditions, such as compensatory mitigation
requirements, may be added to the NWP authorization to ensure that the
activity results in minimal individual and cumulative adverse effects
on the aquatic environment and other public interest factors. The
special conditions are incorporated into the NWP verification, along
with the NWP text and the NWP general conditions.
If the district engineer reviews the NWP verification request and
determines that the proposed activity does not comply with the terms
and conditions of an NWP, he will notify the project proponent and
provide instructions for applying for authorization under a regional
general permit or an individual permit. District engineers will respond
to NWP
[[Page 56264]]
verification requests within 45 days of receiving a complete PCN.
Except for NWP 21, if the project sponsor has not received a reply from
the Corps within 45 days, she may assume that the project is
authorized, consistent with the information in the PCN. For NWP 21
(Surface Coal Mining), the project sponsor may not begin work before
receiving an NWP verification.
Contact Information for Corps District Engineers
Alabama
Mobile District Engineer, ATTN: CESAM-RD, 109 St. Joseph Street,
Mobile, AL 36602-3630.
Alaska
Alaska District Engineer, ATTN: CEPOA-CO-R, P.O. Box 6898,
Elmendorf AFB, AK 99506-6898.
Arizona
Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 532711,
Los Angeles, CA 90053-2325.
Arkansas
Little Rock District Engineer, ATTN: CESWL-RO, P.O. Box 867, Little
Rock, AR 72203-0867.
California
Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street,
Sacramento, CA 95814-2922.
Colorado
Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson
Plaza NE, Albuquerque, NM 87109-3435.
Connecticut
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751.
Delaware
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square East Philadelphia, PA 19107-3390.
Florida
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019.
Georgia
Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889,
Savannah, GA 31402-0889.
Hawaii
Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort
Shafter, Honolulu, HI 96858-5440.
Idaho
Walla Walla District Engineer, ATTN: CENWW-RD, 201 North Third
Avenue, Walla Walla, WA 99362-1876.
Illinois
Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004,
Rock Island, IL 61204-2004.
Indiana
Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59,
Louisville, KY 40201-0059.
Iowa
Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004,
Rock Island, IL 61204-2004.
Kansas
Kansas City District Engineer, ATTN: CENWK-OD-R, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896.
Kentucky
Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59,
Louisville, KY 40201-0059.
Louisiana
New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267,
New Orleans, LA 70160-0267.
Maine
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751.
Maryland
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715.
Massachusetts
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751.
Michigan
Detroit District Engineer, ATTN: CELRE-RG, P.O. Box 1027, Detroit,
MI 48231-1027.
Minnesota
St. Paul District Engineer, ATTN: CEMVP-OP-R, 190 Fifth Street
East, St. Paul, MN 55101-1638.
Mississippi
Vicksburg District Engineer, ATTN: CEMVK-OD-F, 4155 Clay Street,
Vicksburg, MS 39183-3435.
Missouri
Kansas City District Engineer, ATTN: CENWK-OD-R, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896.
Montana
Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street,
Omaha, NE 68102-1618.
Nebraska
Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street,
Omaha, NE 68102-1618.
Nevada
Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street,
Sacramento, CA 95814-2922.
New Hampshire
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751.
New Jersey
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square East, Philadelphia, PA 19107-3390.
New Mexico
Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson
Plaza NE, Albuquerque, NM 87109-3435.
New York
New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, New
York, NY 10278-0090.
North Carolina
Wilmington District Engineer, ATTN: CESAW-RG, P.O. Box 1890,
Wilmington, NC 28402-1890.
North Dakota
Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street,
Omaha, NE 68102-1618.
Ohio
Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street,
Huntington, WV 25701-2070.
Oklahoma
Tulsa District Engineer, ATTN: CESWT-RO, 1645 S. 101st East Ave,
Tulsa, OK 74128-4609.
Oregon
Portland District Engineer, ATTN: CENWP-OD-G, P.O. Box 2946,
Portland, OR 97208-2946.
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715.
[[Page 56265]]
Rhode Island
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751.
South Carolina
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,
Charleston, SC 29402-0919.
South Dakota
Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street,
Omaha, NE 68102-1618.
Tennessee
Nashville District Engineer, ATTN: CELRN-OP-F, 3701 Bell Road,
Nashville, TN 37214.
Texas
Galveston District Engineer, ATTN: CESWG-PE-R, P.O. Box 1229,
Galveston, TX 77553-1229.
Utah
Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, CA
95814-2922.
Vermont
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751.
Virginia
Norfolk District Engineer, ATTN: CENAO-OP-R, 803 Front Street,
Norfolk, VA 23510-1096.
Washington
Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755,
Seattle, WA 98124-3755.
West Virginia
Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street,
Huntington, WV 25701-2070.
Wisconsin
St. Paul District Engineer, ATTN: CEMVP-OP-R, 190 Fifth Street
East, St. Paul, MN 55101-1638.
Wyoming
Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street,
Omaha, NE 68102-1618.
District of Columbia
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715.
Pacific Territories (American Samoa, Guam, & Commonwealth of the
Northern Mariana Islands)
Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort
Shafter, Honolulu, HI 96858-5440.
Puerto Rico and Virgin Islands
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019.
Request for Comment
We are proposing to reissue all nationwide permits, general
conditions, and definitions. Substantive changes to the nationwide
permits, general conditions, and definitions are discussed below, but
we are soliciting comments on all the nationwide permits, general
conditions, and definitions. Minor grammatical changes, the removal of
redundant language, and other small changes are not discussed in the
preamble below. Therefore, commenters should carefully read each
proposed NWP, general condition, and definition in this notice.
Discussion of Proposed Modifications to Existing Nationwide Permits
The proposed changes to the existing NWPs fall into two categories:
Category 1 (Cat 1)--Proposed clarification of an existing NWP by
making minor changes to the text of the NWP. It does not change the
scope of activities authorized by the existing NWP.
Category 2 (Cat 2)--Proposed modification of an existing NWP that
changes the scope of activities authorized by that NWP, or its
substantive requirements.
If an existing NWP is not listed in this section of the preamble,
we are proposing to reissue the NWP without changing it.
We are proposing to modify many of the NWPs so that they follow a
standard format: A description of activities the NWP authorizes,
followed by a description of activities the NWP does not authorized (if
applicable). Any pre-construction notification requirements are
provided in a separate paragraph. Any ``notes'' for the NWP are
provided at the end of the NWP. In many NWPs we are proposing to remove
explicit references to the NWP regulations or general conditions, to
simplify the text of those NWPs since the regulations and general
conditions apply to all NWPs that authorize activities addressed by a
particular provision. For example, general condition 3 requires that
activities in spawning areas during spawning season be avoided to the
maximum extent practicable. This requirement applies to all NWPs that
may authorize activities in spawning areas. In cases where specific
requirements or actions are necessary to ensure that a particular
activity complies with NWP general conditions, district engineers
should add special conditions to the NWP authorization for that
activity. For example, for an NWP activity that will occur in a stream
or other waterbody with spawning areas, special conditions may need to
be added to the NWP authorization that impose time-of-year restrictions
for conducting that activity, to minimize adverse effects to those
spawning areas. If the area in the vicinity of the project site does
not contain spawning areas, then this general condition would not apply
to that NWP activity.
NWP 3. Maintenance. (Cat 2) We are proposing to restructure and
simplify this NWP by shifting some of the activities currently
authorized by NWP 3 to the proposed new NWP A, Emergency Repair
Activities. Specifically we are proposing to remove the last two
sentences of paragraph (i) and the entire paragraph (iii) that are in
the current NWP 3 to the proposed new NWP A. We are also proposing to
remove the definition of ``currently serviceable'' from the first
paragraph of this NWP and place that definition in the ``Definitions''
section, because that term is also used in NWP 41, ``Reshaping Existing
Drainage Ditches'' and proposed NWP C, ``Pipeline Safety Program
Designated Time Sensitive Inspections and Repairs.'' The term
``currently serviceable'' means useable as is or with some maintenance,
but not so degraded as to essentially require reconstruction.
We are proposing to move the provisions regarding the removal of
accumulated sediments from outfall and intake structures and associated
canals from the current NWP 7 (which authorizes construction of outfall
and associated intake structures) to paragraph (b) of the proposed NWP
3. The 200 foot linear limit for the removal of accumulated sediments
in existing NWP 3 would not apply to situations where sediments are
blocking or restricting outfall or intake structures, or to maintenance
dredging to remove accumulated sediments from canals associated with
outfall and intake structures. Pre-construction notification is
required for all activities authorized under paragraph (b) of this NWP.
The proposed changes to NWP 3 will consolidate within a single NWP the
authorization for removal of accumulated sediments from existing
structures and from canals associated with intake and outfall
structures.
[[Page 56266]]
To simplify the text of this NWP, we are proposing to remove the
explicit references to the ``water quality'' and ``management of water
flows'' general conditions, although these general conditions still
apply. We are also proposing to add language to paragraph (c), to
clarify that if temporary fills, structures, or work are required to
conduct the maintenance activity, then separate authorization may be
required. For example, it may be necessary to discharge dredged or fill
material into waters of the United States to construct a cofferdam, so
that the maintenance activity can be completed. The authorization for
the temporary fills, structures, or work may be provided by NWP 33,
Temporary Construction, Access, and Dewatering. We are proposing to
modify the notification provision of this NWP to require information
about original design capacities and configurations of structures and
other features where maintenance dredging is proposed. That provision
was adapted from the requirements for the current NWP 7 and will allow
the district engineer to ensure compliance with the requirement that
limits the removal of sediment to the minimum necessary to restore the
waterway to its approximate dimensions when the structure was built.
NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. (Cat 2) We are proposing to remove the text
authorizing shellfish seeding, since that activity would be authorized
by proposed NWP D (if the activity is an existing commercial shellfish
aquaculture operation) or NWP 27 (if it is conducted for restoration
activities).
NWP 5. Scientific Measurement Devices. (Cat 2) We are proposing to
remove the PCN requirement for discharges of 10 to 25 cubic yards for
the construction of small weirs and flumes, however, we would still
retain the 25 cubic yard limit for such construction. Division
engineers can regionally condition this NWP to require PCNs for certain
activities, including discharges that exceed a specified threshold for
the construction of small weirs and flumes, where necessary to ensure
minimal adverse effects.
NWP 6. Survey Activities. (Cat 2) We are proposing to add
exploratory trenching to the list of examples of activities authorized
by this NWP, as well as a requirement to restore the trenched area to
its pre-construction elevations upon completion of the work. District
engineers have used this NWP to authorize exploratory trenching, with
minimal adverse effects on the aquatic environment. In the text of this
NWP, we are proposing a definition of ``exploratory trenching.'' We are
also proposing to modify this NWP to authorize the construction of
temporary pads used for survey activities, provided the discharge does
not exceed 25 cubic yards. The construction of temporary pads is often
necessary to provide proper levels for equipment used for core
sampling.
NWP 7. Outfall Structures and Associated Intake Structures. (Cat 2)
We are proposing to change the title of this NWP to more clearly
describe what it authorizes. As discussed in the section on the
proposed changes to NWP 3, we are proposing to remove the provisions
regarding the removal of accumulated sediments from outfall and intake
structures and associated canals, and place them in paragraph (b) of
NWP 3. This proposed change will simplify NWP 7, and the removal of
accumulated sediments may be authorized by NWP 3 instead.
NWP 8. Oil and Gas Structures on the Outer Continental Shelf. (Cat
1) We are proposing to change the title of this NWP to more clearly
articulate what it authorizes. We are also proposing to modify this NWP
to require pre-construction notification for all activities, to allow
district engineers to review potential effects on navigation and
national security. Requiring PCNs for all activities will also provide
district engineers the opportunity to review compliance with fairway
regulations, and exercise discretionary authority where limits of
shipping safety fairways or traffic separation schemes have not been
designated or where changes may occur.
NWP 12. Utility Line Activities. (Cat 2) We are proposing several
modifications to this NWP. For this proposed modification of this NWP,
the \1/2\ acre limit still applies to each single and complete project,
as defined at 33 CFR 330.2(i) and the ``Definitions'' section of the
NWPs.
To reduce duplication in the NWPs, we are proposing to modify this
NWP by removing the provision for the construction of access roads.
Permanent or temporary access roads may be authorized by NWPs 14 or 33,
respectively, or by individual permits or regional general permits. As
a result of this proposed change, Note 2 of the current NWP 12 would be
removed.
We are proposing to move the term that requires mitigation for
permanent adverse effects to the functions and services of waters of
the United States to paragraph (g) of the ``mitigation'' general
condition (GC 20). District engineers may require compensatory
mitigation for such impacts, if necessary, to ensure that the utility
line activity results in minimal individual and cumulative adverse
effects on the aquatic environment.
We are also proposing to simplify the PCN thresholds for this NWP,
by requiring notification only for those utility line activities that
require a section 10 permit or that involve discharges of dredged or
fill material resulting in the permanent or temporary loss of greater
than \1/10\ acre of waters of the United States.
We are proposing to redesignate Note 3 as Note 1, and move the
first part of the former Note 1 to the main text of NWP 12. The second
part of former Note 1 would become Note 2 of the proposed modification
of NWP 12.
NWP 13. Bank stabilization. (Cat 2) We are proposing to modify this
NWP to clarify that district engineers may authorize bank stabilization
activities longer than 500 linear feet, or that result in the discharge
of more than one cubic yard of material per running foot below the
plane of the ordinary high water mark or high tide line. Bank
stabilization activities that exceed either of these thresholds require
pre-construction notification. In response to PCNs, district engineers
can issue written waivers of these limits provided the proposed
activities will result in minimal individual and cumulative adverse
effects on the aquatic environment.
We are also proposing to modify this NWP by requiring PCNs for bank
stabilization activities that involve discharges of dredged or fill
material into special aquatic sites, so that district engineers can
authorize those activities if they determine that the individual and
cumulative adverse effects on the aquatic environment are minimal. This
will replace the current prohibition against the placement of materials
in any special aquatic site, including wetlands. In some circumstances,
it may be more beneficial to the watershed to stabilize eroding banks,
even though small amounts of fringe wetlands or mudflats may be
impacted by the bank stabilization activity. District engineers will
exercise discretionary authority to require an individual permit if the
proposed work would result in more than minimal adverse effects to
special aquatic sites.
We are proposing to remove the provision requiring that the
``activity is part of a single and complete project'', since that
requirement applies to all NWPs. The phrase ``single and complete
project'' is defined at 33 CFR 330.2(i) and the ``Definitions'' section
of the NWPs. In place of the general statement
[[Page 56267]]
that the NWP may not be used to channelize a water of the United
States, we are also proposing to clarify that NWP 13 does not authorize
stream channelization activities.
NWP 14. Linear Transportation Projects. (Cat 1) We are proposing to
restructure this NWP to make it easier to understand, but the general
scope of authorized activities is unchanged. The acreage limits and PCN
thresholds are the same as before. In the first paragraph of this NWP,
we are proposing to replace the word ``crossings'' with ``projects,''
to be consistent with the title of this NWP.
We are proposing to add a new condition to this NWP, to limit
stream channel modifications to the minimum necessary to construct or
protect linear transportation projects. We are also proposing to add
language clarifying that NWP 14 does not authorize temporary
construction, access, and dewatering activities; those activities may
be authorized by NWP 33. That language is intended to support our
objective to reduce duplication in the NWPs, since NWPs 14 and 33 can
be combined to authorize single and complete linear transportation
projects that involve temporary construction impacts, provided there is
compliance with the ``use of multiple nationwide permits'' general
condition (GC 24).
We are proposing to remove the explicit requirement that the PCN
include a compensatory mitigation proposal. The compensatory mitigation
requirements for the NWPs are addressed in the ``mitigation'' general
condition (GC 20).
To simplify this NWP, we are also proposing to remove other
redundant language: (1) The text requiring delineations of special
aquatic sites to be submitted with PCNs, which is addressed by
paragraph (b)(4) of the ``pre-construction notification'' general
condition (GC 27); (2) the text requiring that the width of the fill be
limited to the minimum size necessary, which is addressed by the
``mitigation'' general condition (GC 20); (3) the references to the
``management of water flows'' and ``water quality'' general conditions;
and (4) the requirement that the linear transportation project be a
single and complete project, since that requirement applies to all NWPs
(see 33 CFR 330.2(i)).
NWP 16. Return Water From Upland Contained Disposal Areas. (Cat 1)
We are proposing to rearrange the text of this NWP so that it will be
consistent with the format of the other NWPs. We are not proposing any
changes to the terms of this NWP.
NWP 17. Hydropower Projects. (Cat 1) We are proposing to rearrange
the text of this NWP, without modifying any of its terms or its scope.
NWP 18. Minor Discharges. (Cat 2) To enhance protection of the
aquatic environment, we are proposing to modify this NWP by applying
the \1/10\ acre limit to all losses of waters of the United States, not
just special aquatic sites. This proposed change will also help
simplify this NWP. We are also proposing to eliminate the second
sentence of paragraph (b) of this NWP, since the concepts in that
sentence are already addressed in the definition of ``loss of waters of
the United States.'' We are proposing to remove the text requiring a
delineation of special aquatic sites, since it will be addressed in
paragraph (b)(4) of the ``pre-construction notification'' general
condition (GC 27). We are also proposing to remove the language
relating to the requirement that the discharge be part of a single and
complete project, since that requirement applies to all NWPs.
NWP 19. Minor Dredging. (Cat 1) We are proposing to remove the
phrase ``as part of a single and complete project,'' since that
requirement applies to all NWPs and it is not necessary to include that
phrase in the text of this NWP.
NWP 21. Surface Coal Mining Operations. (Cat 1) We are proposing to
reissue NWP 21 to authorize discharges of dredged or fill material into
waters of the United States associated with surface coal mining
operations such as contour mining, mountaintop mining, and area mining.
While surface coal mining operations occur throughout the United
States, the majority of mines that create excess spoil material are
located in the Appalachian coalfields region, many in steep slope
terrains. These types of mining frequently result in excess spoil
material being created that may not safely be placed back on the mine
site. Other permanent impacts may include permanent stream diversions
and/or relocations, fill for coal processing plants, and coal
processing waste areas. Temporary impacts to waters of the United
States frequently include temporary stream relocations, road crossings,
and sediment ponds. Surface coal mining activities may also involve
disturbances to stream channels. Coal deposits underlie many streams at
shallow depths and mining activities routinely divert and relocate
watercourses to remove the coal.
An integrated permit processing procedure is envisioned by the
Joint Procedures Framework Memorandum of Understanding signed by the
Corps, U.S. EPA, U.S. FWS and Office of Surface Mining (OSM) on
February 8, 2005. It is a collaborative process in which the Surface
Mining Control and Reclamation Act authority chooses to be the lead
agency in coordinating interagency review of applications for surface
coal mining operations, while preserving the authorities and
responsibilities of each agency for permit decisions. This should
result in concurrent reviews by the agencies, reduce duplication, and
allow for joint pre-application and public meetings and joint site
visits. To date at least one state (Ohio) has initiated an integrated
permit process, and several other states, such as Washington, are
having discussions.
This NWP is used to provide section 404 authorization for surface
coal mining activities that have also been authorized by the Office of
Surface Mining (OSM) or states with approved programs under Title V of
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). One of
the objectives of NWP 21 is to reduce duplication between the SMCRA and
Section 404 permitting processes when authorizing surface coal mining
projects. In previous versions of NWP 21, there has not been a limit on
either the acreage or linear feet of waters and streams that could be
impacted. This was based partly on the belief that the analyses and
environmental protection performance standards required by SMCRA, in
conjunction with PCN review, are generally sufficient to ensure that
NWP 21 activities result in minimal individual and cumulative adverse
effects on the aquatic environment. Under SMCRA requirements, surface
coal mine operators must minimize adverse impacts to fish and wildlife
habitat and material damage to the hydrologic balance within the
project area. They must also prevent material damage to the hydrologic
balance in surrounding areas. OSM is in the process of developing
revisions to its excess spoil disposal rules that would provide
additional protection for streams.
However, in processing PCNs for NWP 21, the Corps does not rely
solely on the SMRCA process to ensure compliance with the requirements
of the Clean Water Act (CWA). Additional measures, such as compensatory
mitigation to offset losses of aquatic resource functions, are often
needed to ensure that NWP 21 activities result in minimal individual
and cumulative adverse effects on the aquatic environment. The SMCRA
process is used to identify where surface coal mining activities will
occur, and in Appalachia the SMCRA process is used
[[Page 56268]]
to identify the number and location of valley fills. The PCN process is
used to determine what compensatory mitigation is needed to satisfy the
404(b)(1) Guidelines and ensure that individual and cumulative impacts
are minimal. While activities performed to satisfy SMCRA requirements
may be considered in determining compensatory mitigation requirements
under Section 404, there is no presumption that these activities by
themselves are sufficient. Through an April 1999 Memorandum of
Understanding (MOU) signed by the COE, EPA, OSM, FWS, and the West
Virginia Department of Environmental Protection (WVDEP), the agencies
agreed to conduct joint permit application reviews for surface coal
mining projects in West Virginia which impacted streams draining
watersheds of 250 acres or greater and these activities were required
to obtain individual permits. Partly as a result of the MOU, many
surface coal mining projects in the Huntington District are now
authorized under individual permits. The MOU was rescinded after the
Mountaintop Mining/Valley Fill Programmatic Environmental Impact
Statement was finalized.
In 2002, the Corps attempted to address concerns about the impacts
of NWP 21 by requiring that all NWP 21 projects, of any size, file a
PCN with the Corps and wait for written authorization from the Corps
before beginning work. In contrast, most NWPs allow the project sponsor
to begin work 45 days after filing a complete PCN, unless the sponsor
has heard explicitly from the Corps that the work is not authorized.
To further strengthen its process for reviewing PCNs, on March 19,
2004, the Corps issued a standard operating procedure (SOP) for NWP 21
processing. This SOP was developed to improve consistency, and to
enhance predictability and certainty. The procedures in the SOP make
the NWP 21 PCN review process similar to the individual permit review
process, such as the requirement for agency coordination on all
proposed NWP 21 activities. The SOP lists the types of information
needed by the Corps to make minimal impact determinations for proposed
NWP 21 activities. Functional assessments appropriate to the region in
which a proposed NWP 21 activity is located are required to assess
stream quality and wetland impacts. The SOP also discusses requirements
for compensatory mitigation projects, including monitoring requirements
and financial assurances, in cases where compensatory mitigation is
necessary to ensure that an NWP 21 activity results in minimal
individual and cumulative adverse effects on the aquatic environment.
Further guidance on compensatory mitigation for impacts to aquatic
resources resulting from surface coal mining activities was issued by
the Corps on May 7, 2004.
However, we have continued to hear concerns from some stakeholders
about the lack of an acreage limit for NWP 21. In response, we are
seeking comment on the need for an acreage, or other type, of limit for
this NWP. Commenters should address the appropriate scientific and
environmental basis for determining whether there is a need for a
limit, and discuss types of possible limits (e.g., acreage or stream
length impacted, watershed drained). Commenters should also indicate
whether it is appropriate to maintain or modify the current
notification requirements if a limit is added, since these were adopted
partially in response to concerns about the lack of a limit.
The terms and conditions of NWP 21, in conjunction with SMCRA
requirements, the PCN review process, and any compensatory mitigation
required under general condition 20, will ensure that this NWP
authorizes only those activities with minimal individual and cumulative
adverse effects on the aquatic environment.
We are proposing to remove the text stating that the district
engineer may require a bond to ensure the success of mitigation, since
the district engineer has the discretion to impose that requirement on
any NWP activity where mitigation is required. As with the current NWP
21, compensatory mitigation for impacts resulting in the loss of
aquatic resources that is required by OSM or the state may be
considered when determining compensatory mitigation for NWP 21
activities. In accordance with our proposed revisions to the ``pre-
construction notification'' general condition (GC 27), all NWP PCNs
require submission of delineations of waters of the United States,
including special aquatic sites (see paragraph (b)(4) of that general
condition).
Division engineers can regionally condition this NWP to impose an
acreage or linear foot limit or other special conditions, if there are
concerns for the aquatic environment in a particular district,
watershed, or other geographic region.
NWP 22. Removal of Vessels. (Cat 2) We are proposing rearrange the
text of this NWP so that it is in a format similar to the other NWPs.
We are also proposing to require a PCN if the vessel removal activity
involves discharges of dredged or fill material into special aquatic
sites. We are proposing to move the term addressing vessel disposal in
waters of the United States to the ``Note'' at the end of the NWP. We
are proposing to clarify that vessel disposal in waters of the United
States requires separate authorization, if a Corps permit is required.
NWP 23. Approved Categorical Exclusions. (Cat 1) We are proposing
to modify this NWP by reorganizing the text to make it easier to read.
We are proposing to add the phrase ``including pre-construction
notification requirements'' to paragraph (c) of this NWP to clarify
that some activities eligible for NWP authorization may require
submission of PCNs to district engineers prior to commencing the
activity. We are also proposing to change the Corps office designation
from CECW-OR to CECW-CO to reflect organizational changes at Corps
Headquarters.
In the ``Notification'' provision, we are proposing to add a
sentence to explain that there are Regulatory Guidance Letters (RGLs)
that list the approved activities that require submission of PCNs.
Prospective permittees should review the appropriate RGL to determine
if an approved activity requires submittal of a PCN to the district
engineer prior to beginning the activity. The current activities that
have been approved (i.e., the Chief of Engineers has concurred that
they are categorically excluded) for use of NWP 23 are provided in RGL
05-07.
We are also proposing to add a ``Note'' to this NWP, to clarify
that agencies may submit requests to the Office of the Chief of
Engineers to include additional activities as approved for
authorization under NWP 23. Upon receipt of such requests, we will
conduct a public notice and comment process to determine whether the
proposed activities are in fact categorically excluded. Additional
activities approved for use of NWP 23 would be announced in an RGL,
which would be posted at the internet address indicated in the
``Note.''
NWP 24. Indian Tribe or State Administered Section 404 Programs.
(Cat 2) We are proposing to modify this NWP to include Indian Tribes.
Section 518(e) of the Clean Water Act authorizes the U.S. EPA
Administrator to treat an Indian Tribe as eligible for assuming the
section 404 permit program. Currently, only two States (Michigan and
New Jersey) and no Indian Tribes are approved to administer the section
404 program, and we are proposing to add a note to list those states.
We are also proposing to move the text clarifying that certain
structures in navigable
[[Page 56269]]
waters do not require section 10 permits to a note.
NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities. (Cat 2) We are proposing to change the title of this NWP to
more accurately reflect the types of activities it authorizes, since
aquatic habitats other than streams and wetlands can be restored,
established, or enhanced by activities authorized by this NWP. The term
``creation'' would be replaced with ``establishment,'' to conform with
the terminology in Regulatory Guidance Letter 02-02 for wetland project
types and the definition in the Council on Environmental Quality's
April 2006 report entitled ``Conserving America's Wetlands 2006: Two
Years of Progress Implementing the President's Goal.'' We are proposing
to modify this NWP to prohibit the conversion of natural wetlands to
another aquatic use, but the relocation of non-tidal wetlands on the
project site would still be authorized provided certain conditions are
met. In addition, we are proposing to add shellfish seeding to the list
of examples of authorized activities, since shellfish seeding is used
to restore oyster populations.
We are also proposing to modify this NWP to require permittees to
submit copies of: Binding wetland enhancement, restoration, or
establishment agreements; NRCS documentation for voluntary wetland
restoration, enhancement, or establishment actions; or Surface Mining
Control and Reclamation Act (SMCRA) permits issued by the Office of
Surface Mining or the applicable state agency. These documents must be
submitted to the district engineer at least 30 days prior to commencing
activities in waters of the United States authorized by this NWP.
Standard PCNs are not required for activities conducted pursuant to one
of these instruments (except reversion activities; see below), but the
submission of these already prepared documents will allow the Corps to
ensure that the conditions for use of the NWP have been satisfied, with
minimal burden to the project proponent.
We are proposing to replace ``values'' with ``services'' because
ecosystem services provide more objective measures of the importance of
aquatic resource functions to human populations. Services are the
benefits that humans derive from the functions performed by wetlands
and other aquatic resources. Examples of wetland services include flood
damage reduction, water quality improvement, and opportunities for
viewing birds and other wildlife. Aquatic resource restoration,
establishment, and enhancement activities authorized by this NWP are
likely to provide ecosystem services that benefit human populations.
Values of aquatic resources are difficult to describe objectively, and
are usually dependent on the point of view of the person making the
assessment. Values may relate to either monetary or non-monetary
measures, whereas services can be described in physical terms that are
easier to evaluate and address, where necessary, in NWP authorization
letters and special permit conditions.
We are proposing to modify the reversion provision of this NWP by
adding the Farm Service Agency (FSA) and appropriate designated state
cooperating agencies of the U.S. Fish and Wildlife Service, Natural
Resources Conservation Service, FSA, National Marine Fisheries Service,
and National Ocean Service to the list of agencies that may execute
wetland restoration, enhancement, or establishment agreements with
landowners. This NWP authorizes discharges of dredged or fill material
in waters of the United States for the reversion of wetlands that were
restored, enhanced, or established on prior-converted cropland that has
not been abandoned or on uplands, in accordance with a binding
agreement between the landowner and NRCS, FSA, FWS, or their designated
state cooperating agencies. There may be cases where the designated
state cooperating agency has taken over the operational aspects of
executing wetland restoration, enhancement, or establishment agreements
with landowners for those federal agencies. The Conservation Reserve
Enhancement Program (CREP) administered by FSA may involve wetland
restoration, enhancement, and/or establishment activities, and this
program may be delegated to state agencies for implementation. A CREP
contract between the landowner and the administering agency may be for
a term of 10 to 15 years. We are also proposing to add the phrase ``or
on uplands'' to the third sentence of this paragraph, since wetlands
may be established on uplands as a result of an agreement between the
landowner and another government agency.
We are also proposing to modify this NWP by moving the requirement
to notify the district engineer prior to conducting any reversion
activities to the ``Notification'' provision. The ``Notification''
provision requires the permittee or appropriate Federal or State agency
to notify the district engineer in accordance with general condition
27. For reversion activities, the permittee must show that the activity
qualifies for reversion by providing documentation showing that a prior
agreement has expired, or that the reversion activity is otherwise
authorized. This documentation may consist of either: (1) A copy of the
original wetland enhancement, restoration, or establishment agreement
between the landowner and the NRCS, FSA, FWS, or appropriate designated
state cooperating agency that shows the expiration date, if the
agreement has an expiration date; (2) the NRCS documentation for
voluntary wetland enhancement, restoration, and establishment actions
demonstrating compliance with NRCS regulations; or (3) a copy of the
SMCRA permit issued by the OSM or applicable state agency.
We are proposing to modify the ``Note'' at the end of this NWP, by
removing the first sentence. Since the first paragraph of this NWP
states that it authorizes only those activities that result in a net
increase in aquatic resource functions and services (except for
authorized reversion activities), it is redundant to restate this
requirement in the Note. We are also proposing to remove the text
stating that compensatory mitigation is required for impacts to waters
of the United States caused by the authorized construction of
compensatory mitigation projects, including mitigation banks and in-
lieu fee programs.
In addition, we are proposing to remove the last sentence of the
``Note,'' which states that NWP 27 can be used to authorize the
construction of a mitigation bank only when that bank has been approved
in accordance with the procedures in the interagency mitigation banking
guidance issued on November 28, 1995 (60 FR 58605). This provision is
contrary to the 1995 guidance, which states that a bank sponsor may
proceed, at his or her own risk, with the construction of the
mitigation bank after receiving the Department of the Army permit, if
the mitigation banking instrument has not yet been approved.
NWP 29. Residential Developments. (Cat 2) We are proposing to
combine NWP 29 and the provisions of NWP 39 pertaining to residential
developments into a single nationwide permit that authorizes single
unit residences (e.g., single family homes) and multiple unit
residential developments. In other words, we are proposing that NWP 29
authorize both single unit and multiple unit residential developments
while NWP 39 would authorize commercial and institutional developments
because residential developments differ from commercial and
institutional
[[Page 56270]]
developments. In addition, residential developments are often subject
to different state and local requirements. We are seeking comments on
the appropriateness of having separate NWPs to authorize residential
developments and commercial and institutional developments.
We are proposing to require PCNs for all activities authorized by
this NWP, to ensure that those activities result in minimal individual
and cumulative adverse effects to the aquatic environment and other
public interest review factors, such as floodplain values.
The proposed acreage limit is \1/2\ acre, and that acreage limit
includes any losses of waters of the United States resulting from
filling or excavating stream beds. We are also proposing to impose a
300 linear foot limit on the loss of stream bed. For intermittent and
ephemeral stream beds, a district engineer can waive the 300 linear
foot limit on a case-by-case basis, if he determines that the adverse
effects on the aquatic environment are minimal, individually and
cumulatively. These waivers must be issued in writing by the district
engineer. The 300 linear foot limit cannot be waived for perennial
stream beds.
The proposed modification of this NWP provides more protection of
the aquatic environment. The proposed NWP can be used in a narrower
scope of waters than the current NWP 29. The current NWP 29 authorizes
discharges of dredged or fill material into all non-tidal waters of the
United States, including those non-tidal wetlands that are adjacent to
tidal waters. The proposed modification of NWP 29 does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters. The current NWP 39 authorizes both single unit and
multiple unit residential developments with a \/2\ acre limit for
discharges of dredged or fill material into non-tidal waters, except
for non-tidal wetlands adjacent to tidal waters. In effect, the current
NWP 29 is being eliminated, and we are proposing to replace it with the
provisions of the current NWP 39 that authorize single and multiple
unit residential developments.
We are proposing to remove the text requiring permittees to
minimize on- and off-site impacts and avoid flooding, since those
requirements are addressed by the ``mitigation'' general condition (GC
20) and the ``management of water flows'' general condition (GC 9). We
are proposing to remove the text requiring the maintenance of vegetated
buffers next to open waters, since paragraph (d) of general condition
20 states that district engineers may require the establishment and
maintenance of riparian areas next to streams and other open waters. We
are proposing to eliminate the text defining the acreage loss of waters
of the United States, since there is a definition of ``loss of waters
of the United States'' in the ``Definitions'' section of the NWPs.
We are also proposing to eliminate the condition restricting the
use of NWP 29 to those individuals constructing single family homes for
personal use, as well as the definitions for ``individual'' and
``parcel of land.'' We believe that it is inappropriate to establish
different permits for single and multiple residential development
because the impacts to the aquatic environment are determined by the
permit conditions themselves (e.g., \1/2\ acre limit) and not the type
of residential development or the type of permittee. Each proposed NWP
29 activity will be evaluated through the PCN process to determine if
the activity qualifies for NWP authorization.
This NWP can be used to authorize discharges of dredged or fill
material into non-tidal waters of the United States (other than non-
tidal wetlands adjacent to tidal waters) to construct building
foundations and pads, as well as attendant features. The examples of
attendant features listed in this NWP were taken from the current NWP
39. The scope of applicable waters is the same as the current NWP 39.
We are proposing to retain the residential subdivision provision from
the current NWP 39.
In response to a PCN, the district engineer may impose 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, allows for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities.
NWP 30. Moist Soil Management for Wildlife. (Cat 2) We are
proposing to modify this NWP by removing the phrase ``performed on non-
tidal Federally-owned or managed, State-owned or managed property, and
local government agency-owned or managed property, for''. Removal of
this phase will allow any landowner to use this NWP to authorize
discharges of dredged or fill material into non-tidal waters of the
United States for the purpose of managing wildlife habitat and feeding
areas. We do not believe this NWP should be restricted to government
agencies, since many private landowners have an interest in attracting
and supporting various species of wildlife, and can do these activities
without causing more than minimal adverse environmental effects.
We are also proposing to remove the phrase ``[t]he repair,
maintenance or replacement of existing water control structures; the
repair or maintenance of dikes; and'' since those activities may be
authorized by NWP 3. In its place, we are proposing to add an
explanatory ``Note'' at the end of the NWP. For the reasons provided in
the preamble discussion of the definition of ``riparian areas,'' we are
proposing to replace the phrase ``vegetated buffers'' with ``riparian
areas.''
NWP 31. Maintenance of Existing Flood Control Facilities. (Cat 1)
We are proposing to remove the last sentence of the first paragraph of
this NWP, which discussed certain types of maintenance activities that
do not require section 404 permits, since that issue is more
appropriately addressed through the Corps current definition of
``discharge of dredged material'' at 33 CFR 323.2(d).
We are proposing to add ``levees'' to the list of features that can
be maintained through the authorization provided by this NWP, since
levees are often integral parts of flood control facilities. Discharges
of dredged or fill material in waters of the United States for levee
maintenance may be authorized by this NWP, provided the levees are
included in the maintenance baseline.
NWP 32. Completed Enforcement Actions. (Cat 1) We are proposing to
eliminate the phrase ``For either (i), (ii), or (iii) above,'' from the
last paragraph of this NWP. This phrase is unnecessary because
permittees must comply with all applicable terms and conditions of any
NWP. We are also proposing to remove the phrase ``or fails to complete
the work by the specified completion date'' since the completion date
should be specified in the court decision, consent decree, or judicial/
non-judicial settlement agreement.
NWP 33. Temporary Construction, Access, and Dewatering. (Cat 1) We
are proposing to divide the first sentence of this NWP into two
sentences, to clarify that temporary structures or work in navigable
waters of the United States or discharges of dredged or fill material
in waters of the United States associated with construction activities
that do not require permits from the Corps or the U.S. Coast Guard, as
well as those that do require and have obtained such permits, are
authorized by this NWP. We are also proposing to move the requirement
for a restoration plan from the ``pre-construction notification''
[[Page 56271]]
general condition (general condition 13 of the 2002 NWPs) to the
``Notification'' paragraph of this NWP. The PCN must include a
restoration plan showing how all temporary fills and structures will be
removed and the area restored to pre-project conditions. The
restoration plan should also describe reasonable measures for avoidance
and minimization of adverse effects to aquatic resources. We are
proposing to remove the sentence that states that the district engineer
will add special conditions to ensure minimal adverse effects, since
the addition of special conditions where necessary to ensure minimal
adverse effects is a condition of all NWPs.
NWP 34. Cranberry Production Activities. (Cat 1) We are proposing
to rearrange the text of this NWP, to conform with the general format
of the proposed NWPs, and to eliminate the phrase ``provided the
activity meets all of the following criteria:'' since activities must
comply with all terms and conditions of an NWP. We are also proposing
to remove the text requiring PCNs to include delineations of special
aquatic sites, since that requirement is addressed by paragraph (b)(4)
of the proposed modification of the ``pre-construction notification''
general condition (GC 27).
We are proposing to modify this NWP to clarify that an existing
cranberry production operation needs to submit a pre-construction
notification only once during the period that this NWP is valid. The
NWP authorization would apply to on-going discharges of dredged or fill
material into waters of the United States, provided the 10 acre limit
is not exceeded.
NWP 36. Boat Ramps. (Cat 2) We are proposing to modify this NWP to
allow district engineers to issue, on a case-by-case basis after
reviewing pre-construction notifications, waivers to the 50 cubic yard
limit for discharges of dredged or fill material into waters of the
United States to construct a boat ramp. We are also proposing to allow
district engineers to issue waivers to the 20 foot width limit for boat
ramps. These waivers can be issued only if, after reviewing a pre-
construction notification, the district engineer determines that the
adverse effects on the aquatic environment and other factors of the
public interest will be minimal. These waivers must be issued in
writing by the district engineer.
We are proposing to modify this NWP to require pre-construction
notification if the proposed boat ramp involves discharges of more than
50 cubic yards of dredged or fill material into waters of the United
States, or if the proposed boat ramp is greater than 20 feet wide.
We are also proposing to remove the text prohibiting the use of
material that may cause unacceptable chemical pollution, since that
issue is addressed by the ``suitable material'' general condition (GC
6).
NWP 37. Emergency Watershed Protection and Rehabilitation. (Cat 1)
We are proposing to rearrange the text of this NWP to conform with the
format of the proposed modified NWPs, but it will not change the scope
of activities authorized by this NWP.
NWP 38. Cleanup of Hazardous and Toxic Waste. (Cat 1) We are
proposing to modify this NWP by moving the requirement to submit a
delineation of waters of the United States to paragraph (b)(4) of the
``pre-construction notification'' general condition (GC 27). We are
also proposing to move the last sentence of this NWP to a ``Note'' at
the end of the NWP.
NWP 39. Commercial and Institutional Developments. (Cat 2) We are
proposing to remove residential developments as an authorized activity
from this NWP and modify NWP 29 to authorize both single unit and
multiple unit residential developments. We believe that NWP 39 should
be modified to authorize only commercial and institutional developments
because those types of developments differ from residential
developments in a number of ways. Commercial and institutional
developments are often subject to different state and local
requirements than residential developments, such as storm water
management and infrastructure requirements. Planning and zoning
requirements for residential, commercial, and institutional
developments may also be different, which can affect where they are
located in a watershed. We are soliciting comments on limiting NWP 39
to authorizing discharges of dredged or fill material into waters of
the United States to construct or expand commercial and institutional
developments.
We are proposing to modify this NWP to require PCNs for all
activities, to ensure that those activities result in minimal
individual and cumulative adverse effects on the aquatic environment
and other public interest review factors, such as floodplain values.
Since PCNs will be required for all activities authorized by this NWP,
we are proposing to eliminate the reporting requirement in paragraph
(i) of the current NWP 39. For the same reason, we are also proposing
to eliminate the ``Note'' from this NWP.
We are also proposing to modify the 300 linear foot limit for the
loss of stream bed to apply that limit to ephemeral streams. We are
proposing to allow district engineers to waive the 300 linear foot
limit, if the loss of intermittent or ephemeral stream bed will have
minimal individual and cumulative adverse effects on the aquatic
environment. These waivers must be issued in writing by the district
engineer.
Another modification we are proposing is to move the requirement to
submit a delineation of waters of the United States to paragraph (b)(4)
of the ``pre-construction notification'' general condition (GC 27).
Since we are proposing to modify this NWP to require PCNs for all
activities and because the ``mitigation'' general condition (GC 20)
requires permittees to avoid and minimize adverse effects to the
maximum extent practicable on the project site, we are proposing to
remove the text requiring submittal of a written avoidance and
minimization statement and a compensatory mitigation proposal with the
PCN. District engineers will review PCNs to ensure that all practicable
on-site avoidance and minimization has been accomplished. In response
to a PCN, the district engineer may require compensatory mitigation to
ensure that the authorized activity results in minimal adverse
environmental effects (see 33 CFR 330.1(e)(3)).
We are proposing to remove the text requiring the permittee to
establish and maintain, to the maximum extent practicable, riparian
areas next to streams and other open waters on the project site, since
this issue is addressed by paragraph (e) of general condition 20, which
applies to all NWPs, including NWP 39.
We are proposing to remove the references to the general conditions
relating to water quality and the management of water flows, since
those general conditions apply, as appropriate, to all NWPs.
In response to a PCN, the district engineer may impose 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, allows for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities.
NWP 40. Agricultural Activities. (Cat 2) We are proposing to modify
this NWP by eliminating the distinction between permittees that are
U.S. Department of Agriculture (USDA) program participants and those
permittees who
[[Page 56272]]
are not USDA program participants. Participants in USDA programs, as
well as non-participants, are eligible to use this NWP for agricultural
activities. NRCS would no longer need to determine the applicability of
this NWP to authorize agricultural activities resulting in discharges
of dredged or fill material into waters of the United States.
We are proposing to modify this NWP to require PCNs for all
activities, for case-by-case review by district engineers to ensure
that those activities result in minimal individual and cumulative
adverse effects to the aquatic environment and other public interest
review factors.
We are also proposing to modify this NWP to authorize the
construction of farm ponds in non-tidal waters of the United States,
excluding perennial streams, where the pond is necessary for
agricultural production. This NWP would authorize the construction of
farm ponds that do not qualify for the Clean Water Act Section
404(f)(1)(C) exemption because of the recapture provision at section
404(f)(2) of the Act. This NWP does not authorize the construction of
ponds on non-agricultural land, or the construction of recreational or
ornamental ponds. We are proposing to limit discharges of dredged or
fill material for the construction of farm ponds to non-tidal waters,
other than perennial streams and non-tidal wetlands adjacent to tidal
waters, to ensure that the construction of the farm pond results in
minimal individual and cumulative adverse effects on the aquatic
environment. The construction of ponds in perennial streams is more
likely to cause more than minimal adverse effects on the aquatic
environment, by disrupting stream geomorphic processes, as well as
ecological functions of streams.
Since we are proposing to modify this NWP to require PCNs for all
activities, we are removing the explicit requirement to submit a
compensatory mitigation plan with the PCN. In response to a PCN, the
district engineer may require compensatory mitigation (see 33 CFR
330.1(e)(3)) to ensure that the authorized work results in minimal
adverse effects on the aquatic environment. The ``mitigation'' general
condition (GC 20) also addresses compensatory mitigation requirements
for all NWPs. Any compensatory mitigation required for activities
authorized by this NWP that requires section 404 authorization may be
authorized by this NWP or NWP 27.
We are proposing to remove the definition of ``farm tract'' and the
conditions limiting the use of NWPs 39 and 40 on a particular site,
since district engineers will receive PCNs for all activities
authorized by this NWP. District engineers will review PCNs for those
NWPs to ensure that the proposed work results in minimal individual and
cumulative adverse environmental effects.
NWP 41. Reshaping Existing Drainage Ditches. (Cat 2) We are
proposing to modify this NWP to clarify that it authorizes only the
reshaping of drainage ditches constructed in waters of the United
States where the purpose of reshaping the ditch is to improve water
quality. As a result of this modification, we are also proposing to
remove the sentence which states why compensatory mitigation is not
required for the activities authorized by this NWP.
The purpose of this NWP is to encourage landowners who need to
maintain drainage ditches constructed in waters of the United States to
do so in a manner that benefits the aquatic environment. The
maintenance of a drainage ditch to its current configuration is exempt
under Section 404(f)(1)(C) of the Clean Water Act, and does not require
a DA permit. This exemption does not authorize reshaping of existing
drainage ditches, so this NWP authorizes reshaping activities that
benefit the aquatic environment. This NWP was first issued on March 9,
2000, (65 FR 12818) to authorize, to the extent that a section 404
permit is required, the grading of the banks of a currently serviceable
ditch to gentler (shallower) slopes than its current or original
configuration. Reshaping a drainage ditch so that it has shallower side
slopes can help improve water quality by decreasing the velocity of
water flowing through the ditch and by spreading out water flow over a
greater area of soil surface. It should also provide more area for
plants to become established and grow within the ditch. These changes
are likely to help improve water quality by increasing water contact
with vegetation and soil microbes, to facilitate the removal of
nutrients and other chemical compounds through biogeochemical
processes. Slower water flow rates through the ditch should also
decrease erosion, also improving water quality.
We are proposing to remove the prohibition against permanent
sidecasting of excavated material into waters of the United States,
where the excavated material results from the ditch reshaping activity.
In cases where there are jurisdictional wetlands or other waters next
to the ditch to be reshaped, this prohibition is likely to cause many
landowners to maintain the ditch at its originally designed
configuration to qualify for the exemption, since the 404(f)(1)(C)
exemption allows discharges of dredged or fill material into waters of
the United States resulting from ditch maintenance activities.
Since one of the conditions of this NWP states that the centerline
of the ditch must remain in approximately the same place, we do not
believe that it is necessary to state that this NWP does not authorize
stream relocation projects.
NWP 42. Recreational Facilities. (Cat 2) We are proposing to
simplify this NWP by removing the term which limits its use to those
recreational facilities that are integrated into the existing landscape
and do not substantially change pre-construction grades or deviate from
natural landscape contours. That particular term is problematic in many
areas of the United States, especially those regions where the project
area for a proposed recreational facility is predominantly uplands. The
construction of recreational facilities that result in minimal
individual and cumulative adverse effects on the aquatic environment
should be authorized by this NWP, regardless of the amount of changes
to pre-construction grades or natural landscape contours in areas not
subject to regulatory jurisdiction under Section 404 of the Clean Water
Act.
We are also proposing to modify this NWP to require PCNs for all
activities, so that district engineers will be able to review proposed
recreational facilities to ensure that they result in minimal
individual and cumulative adverse effects on the aquatic environment.
We are also proposing to remove the text requiring submission of a
compensatory mitigation proposal with a PCN, since GC 20 addresses
compensatory mitigation requirements for all NWPs. We are proposing to
remove the text that explicitly requires water quality management
measures, since such measures may be required by district engineers for
any NWP on a case-by-case basis in accordance with the ``water
quality'' general condition (GC 21).
We are proposing to modify the 300 linear foot limit for the loss
of stream bed, by applying that limit to ephemeral streams. We are also
proposing to allow district engineers to waive the 300 linear foot
limit, if the stream bed is intermittent or ephemeral and the
individual and cumulative adverse effects on the aquatic environment
are minimal. These waivers must be issued in writing by the district
engineer.
This NWP can be used to authorize the construction of ski areas and
golf
[[Page 56273]]
courses, as long as those activities result in minimal adverse
environmental effects and are in the public interest. We are also
proposing to expand this NWP to authorize playing fields and basketball
and tennis courts. The condition prohibiting the use of this NWP to
authorize hotels, restaurants, stadiums, racetracks, arenas, and
similar facilities would be retained. District engineers will evaluate
PCNs to determine if proposed recreational facilities are authorized by
this NWP.
In response to a PCN, the district engineer may impose 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, allows for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities.
NWP 43. Stormwater Management Facilities. (Cat 2) We are proposing
to modify this NWP to require PCNs for the construction or expansion of
stormwater management facilities, but not for maintenance activities.
District engineers will review those PCNs to ensure that proposed
activities result in minimal individual and cumulative adverse effects
on the aquatic environment and other public interest review factors,
including floodplain values.
We are proposing to modify the 300 linear foot limit for the loss
of stream bed by applying that limit to ephemeral streams. We are also
proposing to allow district engineers to waive the 300 linear foot
limit if the stream bed is intermittent or ephemeral and the filling
and/or excavation of that stream bed will result in minimal individual
and cumulative adverse effects on the aquatic environment. These
waivers must be issued in writing by the district engineer.
In addition, we are proposing to remove the requirement for
prospective permittees to submit maintenance plans, since the NWP
limits maintenance activities to restoring the stormwater management
facility to its original design capacity. We are also proposing to
remove the requirement to submit compensatory mitigation proposals with
PCNs, since mitigation requirements are addressed by GC 20. General
condition 20 requires permittees to avoid and minimize impacts to
waters of the United States on the project site to the maximum extent
practicable, so we are proposing to remove the requirement for
submitting an avoidance and minimization statement with the PCN.
District engineers will review PCNs to determine if avoidance and
minimization has been accomplished to the maximum extent practicable.
We are also proposing to remove the text requiring compliance with
the ``management of water flows'' general condition (GC 9), since that
general condition generally applies, as appropriate, to all NWPs. We
are proposing to remove the requirement for maintenance excavation to
be conducted in accordance with an approved maintenance plan, since the
maintenance of an existing stormwater management facility is limited to
its original design capacity and therefore it is likely to result in
minimal adverse effects to the aquatic environment.
NWP 44. Mining Activities. (Cat 2) We are proposing to simplify
this NWP, and modify it to authorize all types of mining activities
except for coal mining. Surface coal mining activities may be
authorized by NWP 21. Other types of coal mining activities may be
authorized by the proposed new NWP E (Coal Remining Activities) or NWP
F (Underground Coal Mining Activities). This NWP would continue to
authorize aggregate mining and hard rock/mineral mining activities. We
are proposing to retain the \1/2\ acre limit for this NWP. Pre-
construction notifications are required for all activities authorized
by this NWP, so we do not believe that it is necessary to partition the
types of waters where certain types of mining activities can occur.
District engineers will review PCNs to ensure that proposed mining
activities will result in minimal adverse effects on the aquatic
environment, individually and cumulatively, and will exercise
discretionary authority if the adverse effects are more than minimal.
This NWP authorizes only discharges of dredged or fill material into
non-tidal waters of the United States, and does not authorize
discharges into non-tidal wetlands adjacent to tidal waters.
The PCN must include a copy of the reclamation plan, if reclamation
is required by other statutes. We are proposing to remove the
requirement to submit an avoidance and minimization statement, because
the ``mitigation'' general condition (GC 20) requires avoidance and
minimization of adverse effects to waters of the United States to the
maximum extent practicable on the project site. We are proposing to
remove the references to the general conditions relating to the
``shellfish beds'' and ``spawning areas'' general conditions (GC 6 and
GC 3), since those conditions apply, to the extent appropriate, to all
NWPs. We believe that the terms requiring measures to prevent increases
in stream gradient and water velocities, and minimizing turbidity,
should be removed and the prevention or reduction of such impacts is
more appropriately addressed through the NWP general conditions (e.g.,
GCs 3, 9, and 12), as well as the site-specific review and any case-
specific special conditions added to NWP authorizations by district
engineers. If the district engineer reviews a PCN and determines that
the proposed mining activity will result in more than minimal adverse
effects to stream gradient, water velocities, and turbidity, he will
exercise discretionary authority and require an individual permit for
the activity.
We are also proposing to remove the references to the ``water
quality'' general condition (GC 21) and the ``management of water
flows'' general condition (GC 9), since those general conditions apply,
as appropriate, to all NWPs. We believe that restrictions for hard
rock/mineral mining, including beneficiation and mineral processing,
are more appropriately addressed through special conditions to NWP
verifications, or by regional conditions imposed by division engineers.
In response to a PCN, the district engineer may impose 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, allows for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities.
Discussion of Proposed New Nationwide Permits
NWP A. Emergency Repair Activities. We are proposing to remove
paragraph (iii) from the current NWP 3 and issue a new NWP to authorize
emergency repair activities. This will simplify NWP 3, and limit that
NWP to routine maintenance activities. This proposed NWP requires PCNs
for all activities. The PCN must be submitted within 12 months of the
date of the damage. This 12 month period is intended to establish that
the damage or loss of upland occurred in the recent past, and that the
proposed activity is not intended to reclaim lost lands due to gradual
erosion processes. The work must be completed within two years of
submitting the PCN.
The proposed NWP also authorizes bank stabilization activities to
protect the restored uplands, as long as the bank stabilization
activity does not extend beyond the ordinary high water mark
[[Page 56274]]
(OHWM) that existed before the damaging event occurred. Bank
stabilization activities that extend beyond the pre-event OHWM may be
authorized by NWP 13, a regional general permit, or an individual
permit.
We are proposing to replace the 50 cubic yard limit for minor
dredging to remove obstructions from the adjacent waterbody with a
condition limiting minor dredging to the minimum necessary to restore
bottom contours of the waterbody to their pre-event state. District
engineers will review PCNs involving minor dredging for emergency
repair activities, to ensure that the authorized work will result in
minimal adverse environmental effects. We are also proposing to add a
condition which states that project proponents may be required to
obtain separate DA authorization, if temporary structures or discharges
are necessary to conduct the rehabilitation or repair activity.
Separate DA authorization would be required for temporary structures
installed in navigable waters of the United States and/or temporary
discharges of dredged or fill material into waters of the United States
that are necessary to conduct emergency repair activities. The separate
DA authorization may be provided by NWP 33, a regional general permit,
or an individual permit.
In the ``Note'' at the end of this NWP, we are proposing to modify
text taken from paragraph (iii) of NWP 3 to clarify that restoring
uplands up to the OHWM in non-tidal waters or the high tide line in
tidal waters after a storm, flood, or other discrete event does not
require a section 404 permit. If discharges of dredged or fill material
to restore uplands lost as a result of a discrete event occur landward
of the OHWM or high tide line, and there are no jurisdictional waters
or wetlands landward of the OHWM or high tide line, a section 404
permit is not required because there would be no discharge of dredged
or fill material into waters of the United States. In response to a
PCN, the district engineer will determine, on a case-by-case basis, the
location of the OHWM and the high tide line. In the ``Note,'' we are
also proposing to include a reference to 33 CFR 328.5, which addresses
changes in limits to waters of the United States.
In response to a PCN, the district engineer can exercise
discretionary authority and require an individual permit if the
proposed activity will result in more than minimal adverse effects on
the aquatic environment, individually and cumulatively.
NWP B. Discharges into Ditches and Canals. We are proposing a new
NWP to authorize discharges of dredged or fill material into certain
types of ditches and canals that are determined to be waters of the
United States. The proposed NWP will allow a landowner to return his or
her land to its prior condition, but only in those cases where the
ditches or canals meet all three criteria specified in the NWP. To
qualify for this NWP, those ditches and canals must be: (1) Constructed
in uplands, (2) receive water from another water of the United States,
and (3) divert water to another water of the United States. These three
criteria will limit the use of this NWP to those ditches and canals
that generally provide few aquatic resource functions. This proposed
NWP does not authorize discharges of dredged or fill material into
ditches or canals that were constructed in waters of the United States,
such as streams.
We are proposing a one acre limit for this NWP. We believe the one
acre limit will authorize those activities that have minimal adverse
effects on the aquatic environment, individually and cumulatively.
Division engineers can regionally condition this NWP to lower the
acreage limit or otherwise limit its use. We are proposing to require a
PCN if the dredged or fill material will be discharged into more than
500 linear feet of ditch or canal. This proposed NWP is limited to
activities that only require section 404 authorization. An individual
permit, regional general permit, or another NWP would be needed to
authorize discharges of dredged or fill material into ditches and
canals that are determined to be navigable waters of the United States
under section 10 jurisdiction.
We are seeking comments on this proposed new NWP, including its
terms and conditions, such as the proposed one acre limit.
NWP C. Pipeline Safety Program Designated Time Sensitive
Inspections and Repairs. We are proposing a new NWP to authorize the
inspection, repair, rehabilitation, or replacement of any currently
serviceable structure or fill for pipelines that are determined to be
time-sensitive in accordance with the Pipeline and Hazardous Materials
Safety Administration's Pipeline Safety Program (PHP), including its
criteria at 49 CFR parts 192 and 195. This NWP would authorize time-
sensitive pipeline inspection, repair, rehabilitation, or replacement
activities in all waters of the United States, including navigable
waters.
The proposed NWP would significantly improve a participating
pipeline operator's ability to complete inspection and repair
activities, and reduce environmental impacts due to pipeline ruptures.
An Interagency Committee (IAC) was convened to implement Section 16 of
the Pipeline Safety Improvement Act of 2002 (see 49 U.S.C. 60133). The
proposed NWP will help satisfy the requirements of this act. The
environmental compliance and enforcement programs of the agencies
participating in the interagency committee would also help ensure
compliance with environmental statutes such as the Endangered Species
Act and Section 106 of the National Historic Preservation Act.
Although many of these activities could be authorized by NWPs 3 or
12, we are proposing to issue this NWP so that a time-sensitive
inspection and/or repair that meets PHP criteria can proceed without
submitting a PCN to the district engineer. To ensure that this NWP
would allow these inspections and repairs to proceed in a timely
manner, division engineers are not authorized to regionally condition
this NWP. This proposed NWP requires project proponents to: (1)
Participate in PHP's early notification program, (2) utilize the
Pipeline Repair and Environmental Guidance System (PREGS), (3) follow
the agreed upon Recommended Best Management Practices (RMBPs), and (4)
submit post-construction reports within 7 days of completing the work
via PREGS. District engineers can monitor the pipeline inspection and/
or repair activity and the use of this NWP through the post-
construction reporting in PREGS to ensure that the NWP authorizes
activities that have minimal individual and cumulative adverse effects
on the aquatic environment. Suspension or revocation of this NWP may
occur only if the division engineer has formally determined, in
accordance with the procedures at 33 CFR 330.5(c), that the NWP would
result in more than minimal adverse environmental effects, either
individually or cumulatively, within a particular district, watershed,
or other geographic region. District engineers must follow the
procedures at 33 CFR 330.5(d) to suspend or revoke a case-specific
authorization under this NWP.
The Pipeline and Hazardous Materials Safety Administration and the
IAC developed PREGS. Participating pipeline operators and agencies have
access to PREGS. This system will provide early notification to
participating agencies for upcoming pipeline inspection and repair
activities.
The RBMPs have been developed through the IAC to address habitat
and resource issues at the national level. These RBMPs apply to
pipeline inspection and repair activities, as well as post-activity
remediation actions. The RMBPs are available on PREGS.
[[Page 56275]]
Pipeline operators are expected to use the RBMPs while conducting
inspection and repair activities.
Activities authorized by this NWP must comply with the ``endangered
species'' general condition (GC 17) and the ``historic properties''
general condition (GC 18). If a proposed pipeline inspection and/or
repair activity may affect endangered or threatened species or critical
habitat, section 7 consultation is required. Activities that may affect
historic properties require consultation under Section 106 of the
National Historic Preservation Act. We are coordinating with PHP to
determine who will be the lead federal agency for ESA and section 106
consultation.
NWP D. Commercial Shellfish Aquaculture Activities. We are
proposing a new NWP to authorize continued operation of existing
commercial shellfish aquaculture activities in navigable waters of the
United States. This NWP would support the U.S. Department of Commerce's
Aquaculture Policy, which is intended to ``assist in the development of
a highly competitive, sustainable aquaculture industry in the United
States that will meet growing consumer demand for aquatic foods and
products that are of high quality, safe, competitively priced and are
produced in an environmentally responsible manner with maximum
opportunity for profitability in all sectors of the industry.'' The
proposed new NWP also supports the National Aquaculture Act of 1980, as
amended (16 U.S.C. 2801 et seq.), which declared that aquaculture
development is in the national interest, and included requirements for
Federal agencies to address barriers to aquaculture development.
This NWP authorizes structures or work in navigable waters of the
United States, as well as discharges of dredged or fill material into
all waters of the United States. Examples of commercial shellfish
species for which this NWP could be used to authorize aquaculture
activities include oysters, clams, geoducks, mussels, and scallops. The
proposed NWP does not authorize commercial aquaculture activities for
crustaceans or finfish.
This NWP does not authorize the expansion of existing commercial
aquaculture activities or facilities, however we are soliciting comment
on this limitation. We are also soliciting comments on whether to
impose a limit on the quantity of dredged or fill material that could
be discharged into navigable waters, on the acreage of the facility as
a whole or of submerged aquatic vegetation, and/or on the types of
activities authorized. For example, discharges of dredged or fill
material may be necessary to prepare a suitable substrate for shellfish
seeding. Should this activity be authorized by the NWP?
There are different types of shellfish seed that can be used to
increase shellfish production. Shellfish seed may consist of immature
individual shellfish, an individual shellfish attached to a shell or
shell fragment (i.e., spat on shell) and shellfish shells or shell
fragments placed into waters to provide a substrate for attachment by
free swimming shellfish larvae (i.e., natural catch).
To ensure that activities authorized by this NWP result in minimal
individual and cumulative adverse effects on the aquatic environment,
we are proposing to require pre-construction notification if: (1) The
project area is greater than 25 acres; (2) more than 10 acres of the
project area is occupied by submerged aquatic vegetation; (3) the
permittee intends to relocate existing operations into portions of the
project area not previously used for aquaculture activities; or (4)
dredge harvesting is conducted in areas inhabited by submerged aquatic
vegetation. For the purposes of this NWP, we are proposing to define
the project area as the area of navigable waters of the United States
occupied by the aquaculture operation. In most cases, the project area
will consist of a site for which the operator has obtained a permit,
license, or lease from a state or local agency specifically authorizing
aquaculture activities in that particular location. The project area
may include areas in which there has been no previous aquaculture
activity and/or areas that periodically are allowed to lie fallow as
part of the normal operation of the facility. Relocation of existing
operations into portions of the project area not previously used for
aquaculture activities will require a pre-construction notification.
Because shellfish require healthy ecosystems for their growth and
productivity, in addition to providing the aquatic ecosystem services
of improved water quality and increased food production, we believe
that there is generally a net overall increase in aquatic resource
functions in estuaries or bays where shellfish are produced. We are
requesting comments on the potential beneficial and adverse effects
that commercial shellfish aquaculture activities have on the aquatic
environment. We are also seeking comment on this proposed PCN
threshold, including the appropriateness of attempting to quantify
these aquatic operations in terms of acres, ecosystem health, shellfish
productivity, or some other threshold to ensure minimal adverse
effects.
Commercial shellfish aquaculture activities often take place in,
and are found to co-exist with, intertidal areas that are occupied by
submerged aquatic vegetation (i.e., vegetated shallows). To minimize
adverse effects to this type of aquatic habitat, we are proposing to
require PCNs if more than 10 acres of the project area is occupied by
submerged aquatic vegetation.
This proposed NWP does not authorize the cultivation of new
species. In other words, the NWP does not authorize aquaculture
activities for those species that were not previously cultivated by the
existing commercial shellfish aquaculture activity. The commercial
production of a shellfish species that has not been previously
commercially produced by the existing facility may be authorized by an
individual permit or a regional general permit.
We are proposing that division engineers complete reviews of
commercial shellfish aquaculture activities in the estuaries or bays in
their areas on a recurring basis, in coordination with interested
agency and shellfish producers as appropriate. These reviews would
occur at least every 5 years in conjunction with the NWP reissuance
cycle, but may occur more frequently.
This NWP is limited to work associated with the continued operation
of existing commercial shellfish projects, many of which have been in
place for hundreds of years. We feel the potential for adverse
environmental impacts from such existing operations is minimal, and we
support the objectives of the U.S. Department of Commerce's Aquaculture
Policy to increase shellfish productivity in this country. Although new
projects are not authorized initially by this NWP, once authorized by
another form of Department of the Army permit, such as a regional
general permit or an individual permit, the commercial shellfish
activities may continue in accordance with the terms and conditions of
the issued permit and/or this NWP until expired. We are committed to
conducting reviews of commercial shellfish activities to validate,
collect data, and ensure that the Corps is authorizing only those
activities that result in minimal individual or cumulative adverse
effects on the aquatic environment with this NWP or other general
permits for aquaculture activities. These reviews will begin as soon as
possible (but no later than 2007) in all coastal divisions, and will
involve Federal, State and local
[[Page 56276]]
agencies, stakeholders and the general public to help the Corps develop
regional and special conditions to mitigate impacts to the aquatic
environment or other aspects of the public interest which may result
from commercial shellfish aquaculture activities.
This NWP authorizes the continued operation of existing commercial
shellfish aquaculture activities. Those activities may have been
previously authorized by another form of DA authorization. The
construction period for a DA permit is the period of time where the
permittee is authorized to conduct work in navigable waters of the
United States and/or discharge dredged or fill material into waters of
the United States. Once the DA permit expires, further authorization is
not required to maintain the structures or fills, but if additional
work in navigable waters or discharges of dredged or fill material in
jurisdictional waters are necessary for the continued operation of
those activities, then another DA permit is required. The proposed NWP
provides the DA authorization for the continued operation of previously
authorized commercial shellfish aquaculture activities. For example,
the continued operation of an aquaculture activity may involve removing
and replacing structures in navigable waters of the United States on a
recurring basis.
New commercial shellfish aquaculture activities or the substantial
modification (e.g., the culture of different species) of existing
commercial shellfish aquaculture activities in waters of the United
States may be authorized by individual permits or regional general
permits.
NWP E. Coal Remining Activities. We are proposing this new NWP to
authorize the restoration of mine sites throughout the United States
that are causing physical and/or chemical impacts to waters of the
United States. Many of these sites were abandoned or closed prior to
the 1977 Surface Mining Control and Reclamation Act (SMRCA) and are
currently on state lists for reclamation, although funding is limited.
Other sites could include bond forfeitures on active mine sites and
``no cost'' abandoned mine land projects under SMCRA (e.g., government
sponsored construction projects). In some cases, due to changes in
technology, additional coal may be excavated as part of the reclamation
process. In other cases, these sites may be combined with adjacent
unmined areas to put together a project that is economically viable.
The net result of these larger projects is that sources of pollution to
downstream waters, including acid mine drainage and sources of
sediment, will be eliminated or substantially diminished when the site
is reclaimed. The integrated permit processing procedure and its
potential applicability to this NWP is addressed above in the preamble
discussion for NWP 21.
As a result of the reclamation activity on these remined areas,
local water quality would be improved. Reclamation activities may also
involve the construction of emergent wetlands to help improve the
quality of water from mines. Net increases in aquatic functions may be
determined through available assessment methods, including functional
assessments. Assessments may be used to compare ecosystem functions and
site conditions that existed prior to remining to the ecosystem
functions and site conditions that are predicted to be in place at the
site after reclamation has been completed. Reclamation activities may
result in the establishment of permanent structures or fills, to
sustain ecological functions at the site. Such permanent structures or
fills may include treatment wetlands, permanent water diversion
structures, and permanent impoundments. Permanent roads may also be
constructed, to facilitate site access and maintenance of the reclaimed
site.
This NWP authorizes discharges of dredged or fill material into
non-tidal waters of the United States. This NWP may be used on sites
where the ratio of previously mined areas to new coal removal areas is
greater than 60 percent, therefore, we are proposing to allow up to 40
percent of the mine site to include unmined areas. In addition, to
qualify for authorization under this NWP, we are requiring that the
applicant clearly demonstrate that the overall project, including the
reclamation activity and any new mining, will result in a net increase
in aquatic resource functions. Such increases in aquatic resource
functions will be identified through local functional assessment
methods that have been approved for use by the Corps district in that
region.
In response to a PCN, the district engineer may impose 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.
NWP F. Underground Coal Mining Activities. We are proposing a new
NWP to authorize discharges of dredged or fill material into non-tidal
waters of the United States resulting from underground coal mining
activities. This type of mining involves excavating rock and soil on
the surface to expose the coal seam and providing access for people,
equipment, and ventilation facilities, a process referred to as
``facing up.'' In steep terrain, excavated material from these ``face-
up'' areas may result in small fills if the excavation is limited to
providing coal seam access or larger fills if facilities such as fill
for coal processing plants and coal processing waste areas are needed.
Underground mining may also create fills from excavating non-coal waste
rock underground. The mine operator may have to place fill in small
streams adjacent to the preparation facility in order to dispose of
coal waste from the cleaning and preparation of coal. Similarly, the
operator of a preparation facility may need an impoundment in an
adjacent stream valley for withdrawal of cleaning process water. The
integrated permit processing procedure and its potential applicability
to this NWP is addressed in the preamble discussion for NWP 21.
Examples of activities that may be authorized by this NWP include,
but are not limited to, treatment facilities for controlling water
pollution during mining and reclamation (e.g., acid mine drainage
impoundments, sedimentation ponds), access and haul roads, diversion
ditches, support facilities, processing areas, and mined waste
impoundments or embankments. This NWP would also authorize permanent
structures or fills that would remain after reclamation activities have
been completed (e.g., permanent diversion structures to minimize
erosion and prevent water from contacting toxin-producing deposits).
The proposed NWP has a \1/2\ acre limit, and is limited to
discharges of dredged or fill into non-tidal waters of the United
States. The NWP does not authorize discharges of dredged or fill
material into non-tidal wetlands adjacent to tidal waters.
The proposed NWP does not authorize coal preparation and processing
activities outside of the mine site; those activities may be authorized
by NWP 21. Pre-construction notification is required for all activities
authorized by this NWP, and if reclamation is required by other
statutes, then a copy of the reclamation plan must be submitted with
the pre-construction notification.
[[Page 56277]]
Discussion of Proposed Modifications to Nationwide Permit General
Conditions
We are proposing to add a ``Note'' to the list of NWP general
conditions, to ensure that prospective permittees are aware that they
must comply with the general conditions for the NWPs, as well as any
regional conditions imposed by division engineers and special
conditions added by district engineers. The proposed note encourages
prospective permittees to contact the appropriate Corps district office
to determine if regional conditions have been added to an NWP. The
proposed note also encourages prospective permittees to contact the
appropriate Corps district office to determine the status of water
quality certification and/or Coastal Zone Management Act consistency
for any NWP they wish to use.
We are also proposing to place the general conditions in a
different order, to make them easier to read and to facilitate
compliance. The general conditions relating to various environmental
concerns and public interest review factors are listed first, and are
followed by the general conditions relating to administrative
requirements.
GC 1. Navigation. (Remaining as general condition 1.) We are
proposing to modify this general condition by adding two provisions.
First, we are proposing to add paragraph (b), which requires permittees
to install any safety lights and signals required by the U.S. Coast
Guard.
Second, we are proposing to add paragraph (c), which is intended to
address future and current conflicts between Corps water resources
development projects and structures or other work in navigable waters
authorized by Corps permits. There may be cases where activities
authorized by DA permits interfere with navigation or any existing or
future operation of the United States, and need to be removed. In May
2000, we issued guidance requiring district engineers to add this
language as a general condition to all DA permits, including nationwide
permit and regional general permit verifications, that authorize
activities under Section 10 of the Rivers and Harbors Act of 1899.
Adding paragraph (c) to this general condition will help ensure
that permittees are aware that they may need to remove authorized
structures or work if the structures or work interfere with free
navigation in navigable waters of the United States. This provision
applies to all NWPs that authorize section 10 activities, including
those that do not require pre-construction notification.
GC 2. Aquatic Life Movements. (Formerly general condition 4.) We
are proposing to modify the phrase ``necessary life cycle movements,''
by adding ``when known'' following it, to reflect the fact that
necessary life cycle movements are not always well understood for the
wide variety of indigenous aquatic species inhabiting waters of the
United States. This condition still prohibits the substantial
disruption of known life cycle movements of aquatic life.
GC 3. Spawning Areas. (Formerly general condition 20.) To simplify
this general condition, we are proposing to remove the phrase
``including structures or work in navigable waters of the U.S. or
discharges of dredged or fill material'' because it merely lists the
general types of activities authorized by NWP under sections 10 and
404.
GC 4. Migratory Bird Breeding Areas. (Formerly general condition
23.) We are modifying this general condition to cover migratory birds
generally (not just waterfowl) that use aquatic habitat as breeding
areas. To simplify this general condition, we are proposing to remove
the phrase ``including structures or work in navigable waters of the
U.S. or discharges of dredged or fill material'' because it merely
lists the general types of activities authorized by NWP under sections
10 and 404.
GC 5. Shellfish Beds. (Formerly general condition 17.) To simplify
this general condition, we are proposing to remove the phrase
``including structures or work in navigable waters of the U.S. or
discharges of dredged or fill material'' because it merely lists the
general types of activities authorized by NWP under sections 10 and
404. We are also adding a reference to new NWP D, which explicitly
authorizes discharges related to existing commercial shellfish
aquaculture activities, which will generally include shellfish beds.
GC 6. Suitable Material. (Formerly general condition 18.) To
simplify this general condition, we are proposing to remove the phrase
``including structures or work in navigable waters of the U.S. or
discharges of dredged or fill material'' because it merely lists the
general types of activities authorized by NWP under sections 10 and
404.
GC 7. Water Supply Intakes. (Formerly general condition 16.) We are
proposing to add the phrase ``or improvement'' after the word
``repair'' since it may be necessary for water authorities to modify
their intake structures to comply with new regulations or other
reasons. To simplify this general condition, we are proposing to remove
the phrase ``including structures or work in navigable waters of the
U.S. or discharges of dredged or fill material'' because it merely
lists the general types of activities authorized by NWP under sections
10 and 404.
GC 8. Adverse Effects from Impoundments. (Formerly general
condition 22.) We are proposing to remove the last sentence of this
general condition, because it merely lists the general types of
activities authorized by NWP under sections 10 and 404.
GC 9. Management of Water Flows. (Formerly general condition 21.)
We are proposing to simplify this general condition, to require
permittees to maintain the pre-construction course, condition,
capacity, and location of open waters to the maximum extent
practicable. Exceptions to this requirement may be made if the primary
purpose of the NWP activity is to impound water or if the activity
benefits the aquatic environment. For example, stream restoration
activities authorized by NWP 27 may alter the pre-construction course,
condition, capacity, and location of streams, while providing important
aquatic resource functions and services.
GC 10. Fills within 100-Year Floodplains. (Formerly general
condition 26.) We are proposing to modify this general condition to
simply require permittees to comply with applicable state or local
floodplain management requirements that have been approved by the
Federal Emergency Management Agency (FEMA). As discussed below, instead
of the prohibitions imposed by the versions of this general condition
that were present in the 2000 and 2002 nationwide permits, we are
proposing to address impacts to 100-year floodplains through the case-
by-case review that occurs through the PCN process.
This general condition was initially adopted in 2000 and modified
in 2002. In the 2002 NWPs, this general condition prohibited the use of
NWPs 39, 40, 42, 43, and 44 to authorize discharges of dredged or fill
material in waters of the United States resulting in permanent above-
grade fills within mapped 100-year floodplains located below
headwaters. It also prohibited the use of NWPs 39, 40, 42, and 44 to
authorize discharges of dredged or fill material in waters of the
United States resulting in permanent above-grade fills within mapped
floodways above headwaters.
As noted in other sections of this preamble, we are proposing to
require PCNs for all activities authorized by NWP 29 (the proposed
modification of which includes residential development
[[Page 56278]]
activities authorized by the NWP 39 issued in 2002), as well as NWPs
39, 40, 42, and 44. We are also proposing to require PCNs for NWP 43
activities resulting in the construction or expansion of stormwater
management facilities (only maintenance of existing facilities is
exempted from the PCN requirement). Thus, any activity that was
previously prohibited in the 100-year floodplain by this general
condition will now require a PCN.
During the PCN review process, district engineers consider adverse
impacts to the aquatic environment, as well as other public interest
review factors, including floodplain values and flood hazards (see 33
CFR 330.1(e)(2)). If an NWP activity results in more than minimal
adverse effects to the aquatic environment or any other public interest
review factor, the district engineer will exercise discretionary
authority and require an individual permit. Potential impacts to flood
hazards and floodplain values that may be more than minimal can be
assessed in greater depth during the individual permit review process.
In such cases, the Corps will defer to the FEMA-approved state or local
floodplain management requirements.
Where there are regional concerns regarding development activities
in 100-year floodplains involving discharges of dredged or fill
material into waters of the United States, division engineers can
regionally condition certain NWPs to restrict or prohibit use of those
NWPs to authorize activities in those floodplains.
One of the environmental benefits of the NWP program is that it
provides incentives for project proponents to avoid and minimize
impacts to the waters of the United States to qualify for an expedited
NWP authorization instead of applying for individual permits, which
generally require greater costs and time to obtain. Prohibiting the use
of NWPs 39, 40, 42, 43, and 44 removes that incentive to reduce impacts
to qualify for general permit authorization. If required to obtain
individual permits, project proponents may propose larger activities
with greater impacts to waters of the United States within 100-year
floodplains.
Modifying this general condition will increase government
efficiency, by promoting conformity with other federal, state, and
local programs. At the Federal level, the Federal Emergency Management
Agency (FEMA) is the lead Federal agency for floodplain management.
FEMA programs, such as the National Flood Insurance Program (NFIP) and
other floodplain management activities, as well as State and local
government land use planning and zoning efforts, allow floodplain
development. The NFIP imposes construction standards and requirements
for structures built in 100-year floodplains. Those standards and
requirements must be met to qualify for flood insurance. State and
local governments may impose more restrictive standards and
requirements than the NFIP.
To harmonize the NWP program with FEMA's floodplain management
programs, we are proposing to revise this general condition. Adverse
effects to public interest review factors, especially floodplain values
and flood hazards, will be evaluated during the PCN review process for
NWPs 29, 39, 40, 42, 43, and 44, as well as other NWPs, to the extent
appropriate. Management of floodplain development is more appropriately
achieved through state and local government land use planning, which
can address impacts to both the aquatic and terrestrial components of
100-year floodplains.
GC 11. Equipment. (Formerly general condition 5.) We are proposing
to add the phrase ``or mudflats'' to minimize soil disturbance in these
special aquatic sites.
GC 12. Soil Erosion and Sediment Controls. (Formerly general
condition 3.) We are not proposing any changes to this general
condition.
GC 13. Removal of Temporary Fills. (Formerly general condition 24.)
We are proposing to replace the phrase ``their preexisting elevation''
with ``pre-construction conditions'' to clarify that temporarily filled
areas are to be restored to the condition they were in prior to
construction.
GC 14. Proper Maintenance. (Formerly general condition 2.) We are
not proposing any changes to this general condition.
GC 15. Wild and Scenic Rivers. (Formerly general condition 7.) We
are not proposing any changes to this general condition.
GC 16. Tribal Rights. (Formerly general condition 8.) We are not
proposing any changes to this general condition.
GC 17. Endangered Species. (Formerly general condition 11.) We are
proposing to add a sentence to paragraph (a) of this general condition
to state that no activity which may affect a listed species or critical
habitat is authorized by NWP unless Section 7 consultation addressing
the effects of the proposed activity has been completed. The district
engineer is responsible for making the ``may effect'' determination.
We are also proposing to modify this general condition by adding a
provision that requires district engineers to notify prospective
permittees within 45 days whether the proposed activity ``may affect''
or will have ``no effect'' to listed species and designated critical
habitat. The proposed modification also states that applicants cannot
begin proposed activities until: (1) They are notified by the Corps
that those activities will result in ``no effect'' on listed species or
critical habitat, or (2) Section 7 consultation has been completed (see
33 CFR 330.4(f)(2)). The purpose of the proposed provision is to
facilitate compliance with the Endangered Species Act and keep
prospective permittees informed of the status of their pre-construction
notifications.
GC 18. Historic Properties. (Formerly general condition 12.) We are
proposing to modify this general condition by adding a provision that
requires district engineers to notify prospective permittees within 45
days whether consultation under Section 106 of the National Historic
Preservation Act is required. The purpose of the proposed provision is
to facilitate section 106 compliance and keep prospective permittees
informed of the status of their pre-construction notifications.
We are also proposing to remove the reference to Appendix C to 33
CFR part 325, where our regulations for the protection of historic
properties are currently located. On April 25, 2005, we issued revised
interim guidance for implementing Appendix C with the Advisory Council
on Historic Preservation's revised regulations at 36 CFR part 800. We
believe this general condition should have a more general reference to
the Corps Regulatory Program's current procedures for section 106
compliance, since we are using Appendix C, the revised interim
guidance, and other guidance for section 106 compliance. We are in the
process of revising regulatory program procedures for Section 106
compliance.
GC 19. Designated Critical Resource Waters. (Formerly general
condition 25). This general condition is being simplified but not
substantively changed. We are removing wild and scenic rivers and
critical habitat for threatened or endangered species from the list of
waters to which this general condition applies, because general
conditions 15 and 17 already address these waters and the previous
version of this general condition merely stated that these other
general conditions must be complied with. District engineers will pay
particular attention to critical resource waters in determining whether
special permit conditions are needed, or whether discretionary
authority to
[[Page 56279]]
require individual permits should be exercised.
GC 20. Mitigation. (Formerly general condition 19.) As discussed
above, we are proposing to modify several NWPs (e.g., NWPs 39, 40, and
42) which may authorize discharges of dredged or fill material into
wetlands, to require PCNs for all activities. For some wetland impacts
authorized by NWPs, such as discharges of dredged or fill material
resulting in the loss of small amounts of wetlands, it may not be
practicable or appropriate to require compensatory mitigation for those
losses. Therefore, we are establishing a threshold of \1/10\ acre for
compensatory mitigation requirements. For projects that cause losses
that exceed this threshold, compensatory mitigation will generally be
required. For losses below this threshold, district engineers will
review PCNs to determine if compensatory mitigation is necessary to
ensure that the work authorized by NWP results in minimal adverse
effects on the aquatic environment, individually and cumulatively.
Permit applicants whose projects will exceed the \1/10\ acre loss
threshold must include a description in their PCN of how they intend to
satisfy the mitigation requirement.
We are also proposing to remove the paragraph that defines
practicable mitigation and provides examples of appropriate and
practicable mitigation. As discussed elsewhere in this notice, we are
proposing to add a definition of the term ``practicable'' to the
``Definitions'' section of the NWPs, so we do not believe it is
necessary to include the definition in this general condition.
We are proposing to modify paragraph (d) of this general condition,
to clarify that compensatory mitigation cannot be used to increase the
acreage losses allowed by the acreage limits of the NWPs.
For the reasons stated in the preamble discussion for the
definition of ``riparian areas'' we are proposing to change the term
``vegetated buffer'' to ``riparian areas.'' District engineers will
make case-by-case determinations as to whether the establishment and
maintenance of riparian areas is necessary, either in-lieu of or in
addition to, wetlands compensatory mitigation, if both open waters and
wetlands exist on the project site. Those determinations are based on
consideration of watershed needs.
We are also proposing to remove the paragraph stating that
compensatory mitigation plans submitted with a PCN may be either
conceptual or detailed, because that provision is in paragraph (e) of
the ``pre-construction notification'' general condition (GC 27).
Conditioning NWP verifications to require the submission of detailed
compensatory mitigation plans prior to commencing work in waters of the
United States is also addressed by the ``pre-construction
notification'' general condition.
We are also proposing to add a new paragraph to this general
condition, stating that district engineers may require mitigation when
certain functions and services of waters of the United States are
permanently adversely affected by NWP activities. This paragraph was
adapted from a term in the NWP 12 issued in 2002.
GC 21. Water Quality. (Formerly general condition 9.) We are
proposing to simplify this general condition by removing paragraph (b)
and adding a sentence which states that the district engineer may
require water quality management measures to ensure that the authorized
activity does not result in more than minimal degradation of water
quality.
GC 22. Coastal Zone Management. (Formerly general condition 10.) We
are proposing to modify this general condition to clarify that
additional measures may be required to ensure that the authorized
activity is consistent with State coastal zone management requirements.
GC 23. Regional and Case-by-Case Conditions. (Formerly general
condition 6.) We are proposing to add U.S. EPA to the list of agencies
issuing water quality certifications, since that agency issues water
quality certifications in areas where there are no state or tribal
water quality standards. We are also proposing to add language
clarifying that the state issues Coastal Zone Management Act
consistency determinations.
GC 24. Use of Multiple Nationwide Permits. (Formerly general
condition 15.) The only modification we are proposing is to change the
example from a parenthetical expression to a complete sentence.
GC 25. Transfer of Nationwide Permit Verifications. We are
proposing a new NWP general condition to address the transfer of NWP
verifications when the project site is transferred from the project
proponent who received the original NWP verification to a new project
proponent. The new project proponent may have purchased the project
site for the verified NWP activity.
The NWP verification would be transferred to the new owner if the
permittee submits a letter to the appropriate Corps district office,
and the transferee signs the statement provided in this general
condition. The district office would then validate the transfer by
sending a confirmation letter to the new permittee.
GC 26. Compliance Certification (Formerly general condition 14.) We
are proposing only minor grammatical changes to this general condition.
GC 27. Pre-construction Notification. (Formerly general condition
13.) We are proposing to simplify this general condition by deleting
text that is redundant with the terms of specific NWPs. As part of our
efforts to make the NWPs easier to understand, if there is information
required to be submitted with a PCN that is only applicable to a
particular NWP, those requirements are indicated in the
``Notification'' paragraph of that NWP.
We are proposing to add a sentence to paragraph (a)(3) of this
general condition, to clarify that the permittee cannot begin the NWP
activity until consultations required by Section 7 of the Endangered
Species Act (ESA) and/or Section 106 of the National Historic
Preservation Act (NHPA) are completed. The NWP regulations state that
if the prospective permittee notifies the district engineer that
Federally-listed endangered or threatened species or critical habitat
might be affected or are in the vicinity of the project, he or she
cannot begin work until notified by the district engineer that the
requirements of the ESA have been satisfied (see 33 CFR 330.5(f)(2)).
There is a similar provision for compliance with Section 106 of the
NHPA at 33 CFR 330.5(g)(2).
We are proposing to modify paragraph (b)(3), which lists the
required contents of pre-construction notifications, by deleting the
word ``brief'' and clarifying that PCNs must include descriptions of
proposed NWP activities that are sufficiently detailed for the district
engineer to determine that any adverse impacts to the aquatic
environment are minimal, both individually and cumulatively, and to
develop any special conditions, including compensatory mitigation, that
may be needed to ensure that this requirement is satisfied. We believe
that providing more detailed descriptions of proposed NWP activities
will facilitate reviews of PCNs.
In paragraph (b)(4), we are also proposing to require that PCNs
include delineations of special aquatic sites and other waters of the
United States on the project site. We believe that more complete
delineations will help expedite reviews of PCNs, by indicating clearly
the proposed impacts to waters of the United States. We are also
proposing to modify this paragraph to clarify that there may be
extended delays if the permittee asks the Corps to
[[Page 56280]]
conduct the delineation and the project site is large or contains many
wetland areas.
In paragraph (b)(5), we are proposing to add a requirement for the
prospective permittee to submit a statement describing how the
mitigation requirement will be satisfied for those activities resulting
in the loss of greater than \1/10\ acre of wetlands.
We are proposing to add a provision to paragraph (d) to clarify the
agency coordination process for NWP 37 PCNs. This provision states that
emergency watershed protection and rehabilitation activities can
proceed immediately, and a district engineer will consider comments
received in response to agency coordination of the PCN (i.e., for NWP
37 activities resulting in the loss of greater than \1/2\ acre of
waters of the United States) when determining if the case-specific NWP
37 authorization should be modified, suspended, or revoked.
In addition, we are proposing to drop one NWP general condition.
GC 27. Construction Period. This general condition was first
adopted in 2002. During the implementation of the 2002 NWPs, questions
arose that have required us to revisit this general condition. Section
404(e)(2) of the Clean Water Act places a five-year limit on general
permits issued under section 404. General condition 27 allowed a
district engineer to place any completion date on an NWP verification,
based on the amount of time a project proponent estimated would be
necessary to finish constructing the NWP activity and consideration of
the public interest. This general condition did not specify any limits
to these completion dates, in effect providing the district engineer
with the authority to state that the NWP activity was authorized for
any period of time.
The NWP regulations contain a provision that allows permittees to
continue work for one year in reliance on an NWP authorization, if that
NWP has expired or been modified or revoked, as long as the activity
was under construction or under contract to commence construction (see
33 CFR 330.6(b)). If that work cannot be completed within that one-year
time period, then the permittee would have to obtain another DA
authorization. We believe this provision is sufficient to address the
concern with projects that may not be completed before an NWP expires.
Proponents of NWP activities that will require substantial amounts
of time to complete (greater than one year beyond the expiration of
currently applicable NWPs) should consider whether it would be more
advantageous to pursue an individual permit authorization. There is
greater flexibility in construction periods that can be authorized by
individual permits. An individual permit authorization can also be
extended, as long as the district engineer determines that the time
extension would be consistent with applicable regulations and would not
be contrary to the public interest.
Discussion of Proposed Modifications to Existing Nationwide Permit
Definitions
We are proposing changes to some of the NWP definitions. If a
definition is not discussed below, we are not proposing any substantive
changes to that definition.
Best Management Practices. We are proposing to modify this
definition by removing the last sentence, since it does not help define
this term. Instead, this sentence describes a potential consequence of
implementing best management practices.
Compensatory Mitigation. We are proposing to modify this definition
by removing the phrase ``For the purposes of Section 10/404,
compensatory mitigation is'' because the definitions in this section
apply only to the NWP program. Therefore, it is not necessary to refer
to section 10 or section 404. We are also proposing to replace
``creation'' with ``establishment (creation)'' to be consistent with
the wetland project types described in Regulatory Guidance Letter 02-
02.
Creation. We are proposing to remove this term, and use the
definition of ``establishment (creation)'' in its place.
Currently serviceable. We are proposing to move this definition
from NWP 3 to the ``Definitions'' section, since this definition
applies to more than one NWP (i.e., NWPs 3 and 41, as well as proposed
new NWP C).
Enhancement. We are proposing to modify this definition to be
consistent with the wetland project type described in Regulatory
Guidance Letter 02-02 and the definition in the Council on
Environmental Quality's April 2006 report entitled ``Conserving
America's Wetlands 2006: Two Years of Progress Implementing the
President's Goal.''
Establishment (creation). We are proposing to modify this
definition to be consistent with the wetland project type described in
Regulatory Guidance Letter 02-02 and the definition in the Council on
Environmental Quality's April 2006 report entitled ``Conserving
America's Wetlands 2006: Two Years of Progress Implementing the
President's Goal.'' This term would also be applied to the development
of aquatic resources at upland or deepwater sites.
Farm tract. We are proposing to remove this definition, since this
term is not used in the proposed NWPs.
Flood fringe. We are proposing to remove this definition, since
this term is not used in the proposed NWPs.
Floodway. We are proposing to remove this definition, since this
term is not used in the proposed NWPs.
Loss of waters of the United States. We are proposing to modify
this definition by replacing the phrase ``above-grade, at-grade, or
below-grade fills'' with ``discharges of dredged or fill material'' to
be consistent with the definitions of ``fill material'' and ``discharge
of fill material'' issued on May 9, 2002 (67 FR 31129) at 33 CFR 323.2.
We are also proposing to eliminate the sentence stating that impacts to
ephemeral streams are not included in the linear foot limits for stream
impacts in NWPs 39, 40, 42, and 43, because of the proposed changes to
those NWPs. For those NWPs with 300 linear foot limits for filling or
excavating stream bed, ephemeral streams will be included when
determining compliance with that limit. As discussed elsewhere in this
notice, the district engineer can issue a written waiver to those
linear foot limits for ephemeral and intermittent streams on a case-by-
case basis if the proposed work will have minimal individual and
cumulative adverse effects on the aquatic environment. We are proposing
to add a sentence to this definition to clarify that activities exempt
from section 404 permit requirements are not included when calculating
the loss of waters of the United States.
Open water. We are proposing to change this definition by adding a
sentence that describes what an ordinary high water mark is.
Permanent above-grade fill. We are proposing to remove this
definition, since this term is not used in the proposed NWPs.
Practicable. We are proposing to move this definition from the
current ``mitigation'' general condition (GC 20) to the ``Definitions''
section of the NWPs.
Pre-construction notification. We are proposing to add this
definition to clarify the various circumstances under which a PCN may
be submitted.
Preservation. We are proposing to modify this definition to be
consistent with the definition for ``protection/maintenance
(preservation)'' in Regulatory Guidance Letter 02-02 and the definition
in the Council on Environmental Quality's April 2006 report entitled
``Conserving America's
[[Page 56281]]
Wetlands 2006: Two Years of Progress Implementing the President's
Goal.''
Re-establishment. We are proposing to add this definition, to be
consistent with the wetland project type described in Regulatory
Guidance Letter 02-02 and the definition in the Council on
Environmental Quality's April 2006 report entitled ``Conserving
America's Wetlands 2006: Two Years of Progress Implementing the
President's Goal.''
Rehabilitation. We are proposing to add this definition, to be
consistent with the wetland project type described in Regulatory
Guidance Letter 02-02 and the definition in the Council on
Environmental Quality's April 2006 report entitled ``Conserving
America's Wetlands 2006: Two Years of Progress Implementing the
President's Goal.''
Restoration. We are proposing to modify this definition to be
consistent with the wetland project type described in Regulatory
Guidance Letter 02-02 and the definition in the Council on
Environmental Quality's April 2006 report entitled ``Conserving
America's Wetlands 2006: Two Years of Progress Implementing the
President's Goal.''
Riparian areas. We are proposing to replace the definition of
``vegetated buffers'' with a definition of ``riparian areas'' since the
latter term more accurately reflects what is normally required as
mitigation for NWP activities where there are streams and other open
waters on a project site. Since 1996, we have placed more emphasis in
the NWP program on protecting streams and other open waters. Also, with
the issuance of Regulatory Guidance Letter 02-02, we have taken a
watershed approach to compensatory mitigation, which includes
consideration of the ecological functions provided by riparian areas.
In two of the NWPs issued on December 13, 1996 (61 FR 65874),
specifically NWPs 29 and 30, we began requiring the establishment and
maintenance of vegetated buffers next to open waters, such as streams,
to preclude water quality degradation from erosion and sedimentation.
That requirement was added to some of the NWPs issued on March 9, 2000
(65 FR 12818). The 2000 NWPs clarified that vegetated buffers could be
required only for perennial or intermittent streams or other open
waters on the site. The vegetated buffer requirement does not apply to
other aquatic resources, such as wetlands.
Since the requirements of past NWPs, as well as the current NWPs,
have focused on using vegetated areas next to open waters such as
streams to ensure that certain NWP activities result in minimal adverse
effects on the aquatic environment, the term ``riparian area'' is more
accurate, and more clearly conveys to the regulated public a specific
type of mitigation that may be required for some NWPs. The term
``vegetated buffer'' is a vague term, because it can apply to any
vegetated area next to some feature in the landscape.
In 2002, the National Research Council (NRC) published a report
entitled ``Riparian Areas: Functions and Strategies for Management.''
The proposed definition of ``riparian areas'' was adapted with
modifications from the definition developed by the NRC.
Stream channelization. We are proposing to simplify this
definition, by generally considering man-made changes to a stream's
course, condition, capacity, or location to be stream channelization
activities.
Structure. We are proposing to add this definition to the NWPs. The
examples in this definition were adapted from 33 CFR 322.2(b).
Vegetated buffer. For the reasons discussed in the preamble
discussion of the proposed definition of ``riparian area'' we are
proposing to remove this definition.
Waterbody. We are proposing to modify this definition to clarify
that a waterbody is a jurisdictional water of the United States, and
that it would have flowing or standing water during years with normal
patterns of precipitation to the extent that an ordinary high water
mark or other indicators of jurisdiction can be determined. The
waterbody would include wetland areas. We are also proposing to amend
this definition by adding a sentence that describes what an ordinary
high water mark is. We are proposing to modify this definition so that
a waterbody and its adjacent wetlands would be considered together as a
single aquatic unit. The purpose of this definition is not to identify
which waterbodies are jurisdictional, but to clarify how adjacent
waters of the United States are grouped into waterbodies, especially
for the purposes of implementing 33 CFR 330.2(i), which addresses
single and complete projects for the NWPs.
Administrative Requirements
Plain Language
In compliance with the principles in the President's Memorandum of
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is
written using plain language. The use of ``we'' in this notice refers
to the Corps. We have also used the active voice, short sentences, and
common everyday terms except for necessary technical terms.
Paperwork Reduction Act
The proposed NWPs will increase the number of permittees who are
required to submit a PCN. The content of the PCN is not changed from
the current NWPs, but the paperwork burden will increase because of the
increased number of PCNs submitted. The Corps estimates the increased
paperwork burden at 4,500 hours per year. This is based on an average
burden to complete and submit a PCN of 10 hours, and an estimated 450
additional projects that will require PCNs. Prospective permittees who
are required to submit a pre-construction notification (PCN) for a
particular NWP, or who are requesting verification that a particular
activity qualifies for NWP authorization, may use the current standard
Department of the Army permit application form.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
For the Corps Regulatory Program under Section 10 of the Rivers and
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the
current OMB approval number for information collection requirements is
maintained by the Corps of Engineers (OMB approval number 0710-0003,
which expires on April 30, 2008).
Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether the regulatory action is ``significant'' and
therefore subject to review by OMB and the requirements of the
Executive Order. The Executive Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the
[[Page 56282]]
President's priorities, or the principles set forth in the Executive
Order.
Pursuant to the terms of Executive Order 12866, we have determined
that the proposed rule is a ``significant regulatory action'' and the
draft was submitted to OMB for review.
Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the Corps to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' The proposed issuance and modification of NWPs does not
have federalism implications. We do not believe that the proposed NWPs
will have substantial direct effects on the States, on the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
The proposed NWPs will not impose any additional substantive
obligations on State or local governments. Therefore, Executive Order
13132 does not apply to this proposal.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the proposed issuance and
modification of NWPs on small entities, a small entity is defined as:
(1) A small business based on Small Business Administration size
standards; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district, or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field.
The statues under which the Corps issues, reissues, or modifies
nationwide permits are Section 404(e) of the Clean Water Act (33 U.S.C.
1344(e)) and Section 10 of the Rivers and Harbors Act of 1899 (33
U.S.C. 403). Under section 404, Department of the Army (DA) permits are
required for discharges of dredged or fill material into waters of the
United States. Under section 10, DA permits are required for any
structures or other work that affect the course, location, or condition
of navigable waters of the United States. Small entities proposing to
discharge dredged or fill material into waters of the United States
and/or conduct work in navigable waters of the United States must
obtain DA permits to conduct those activities, unless a particular
activity is exempt from those permit requirements. Individual permits
and general permits can be issued by the Corps to satisfy the permit
requirements of these two statutes. Nationwide permits are a form of
general permit issued by the Chief of Engineers.
Nationwide permits automatically expire and become null and void if
they are not modified or reissued within five years of their effective
date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the Clean
Water Act states that general permits, including NWPs, can be issued
for no more than 5 years. If the current NWPs are not reissued, they
will expire on March 18, 2007, and small entities and other project
proponents would be required to obtain alternative forms of DA permits
(i.e., standard permits, letters of permission, or regional general
permits) for activities involving discharges of dredged or fill
material into waters of the United States or structures or work in
navigable waters of the United States. Regional general permits that
authorize similar activities as the NWPs may be available in some
geographic areas, so small entities conducting regulated activities
outside those geographic areas would have to obtain individual permits
for activities that require DA permits.
Nationwide permits help relieve regulatory burdens on small
entities who need to obtain DA permits. They provide an expedited form
of authorization, provided the project proponent meets all terms and
conditions of the NWPs. In FY 2003, the Corps issued 35,317 NWP
verifications, with an average processing time of 27 days. Those
numbers do not include activities that are authorized by NWP, where the
project proponent was not required to submit a pre-construction
notification or did not voluntarily seek verification that an activity
qualified for NWP authorization. The average processing times for the
4,035 standard permits and the 3,040 letters of permission issued
during FY 2003 were 187 days and 89 days, respectively. The NWPs
proposed for reissuance, as well as the proposed new NWPs, are expected
to result in a slight increase in the numbers of activities potentially
qualifying for NWP authorization. The estimated numbers of activities
qualifying for NWP authorization are provided in the draft decision
documents that were prepared for each NWP. The revised NWPs are not
expected to significantly increase cost or paperwork burden for
authorized activities (relative to the current NWPs), including those
conducted by small businesses.
When compared to the compliance costs for individual permits, most
of the terms and conditions of the proposed NWPs are expected to result
in decreases in the costs of complying with the permit requirements of
sections 10 and 404. The anticipated decrease in compliance cost
results from the lower cost of obtaining NWP authorization instead of
standard permits. Unlike standard permits, NWPs authorize activities
without the requirement for public notice and comment on each proposed
activity.
Another requirement of Section 404(e) of the Clean Water Act is
that general permits, including nationwide permits, authorize only
those activities that result in minimal adverse environmental effects,
individually and cumulatively. The terms and conditions of the NWPs,
such as acreage or linear foot limits, are imposed to ensure that the
NWPs authorize only those activities that result in minimal adverse
effects on the aquatic environment and other public interest review
factors.
After considering the economic impacts of the proposed nationwide
permits on small entities, I certify that this action will not have a
significant impact on a substantial number of small entities. Small
entities may obtain required DA authorizations through the NWPs, in
cases where there are applicable NWPs authorizing those activities and
the proposed work will result in minimal adverse effects on the aquatic
environment and other public interest review factors. The terms and
conditions of the revised NWPs will not impose substantially higher
costs on small entities than those of the existing NWPs. If an NWP is
not available to authorize a particular activity, then another form of
DA authorization, such as an individual permit or regional general
permit, must be secured. However, as noted above, we expect a slight
increase in the number of activities than can be authorized through
NWPs, because we are adding several new NWPs, and we are removing some
limitations in existing NWPs and replacing them with PCN requirements
that will allow the district
[[Page 56283]]
engineer to judge whether any adverse effects of the proposed project
are more than minimal, and authorize the project under an NWP if they
are not.
We are interested in the potential impacts of the proposed NWPs on
small entities and welcome comments on issues related to such impacts.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, the
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating a rule for which a
written statement is needed, Section 205 of the UMRA generally requires
the agencies to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows an agency to adopt an
alternative other than the least costly, most cost-effective, or least
burdensome alternative if the agency publishes with the final rule an
explanation why that alternative was not adopted. Before an agency
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed, under Section 203 of the UMRA, a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of regulatory
proposals with significant federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
We have determined that the proposed NWPs do not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. The proposed NWPs are generally consistent with
current agency practice, do not impose new substantive requirements and
therefore do not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and Tribal
governments, in the aggregate, or the private sector in any one year.
Therefore, this proposal is not subject to the requirements of Sections
202 and 205 of the UMRA. For the same reasons, we have determined that
the proposed NWPs contains no regulatory requirements that might
significantly or uniquely affect small governments. Therefore, the
proposed issuance and modification of NWPs is not subject to the
requirements of Section 203 of UMRA.
Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, we must evaluate the environmental health or
safety effects of the proposed rule on children, and explain why the
regulation is preferable to other potentially effective and reasonably
feasible alternatives.
The proposed NWPs are not subject to this Executive Order because
they are not economically significant as defined in Executive Order
12866. In addition, the proposed NWPs do not concern an environmental
or safety risk that we have reason to believe may have a
disproportionate effect on children.
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' The phrase
``policies that have tribal implications'' is defined in the Executive
Order to include regulations that have ``substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
government and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.''
The proposed NWPs do not have tribal implications. It is generally
consistent with current agency practice and will not have substantial
direct effects on tribal governments, on the relationship between the
Federal government and the Indian tribes, or on the distribution of
power and responsibilities between the Federal government and Indian
tribes. Therefore, Executive Order 13175 does not apply to this
proposal. However, in the spirit of Executive Order 13175, we
specifically request comment from tribal officials on the proposed
rule.
Environmental Documentation
A preliminary decision document, which includes a draft
environmental assessment and Finding of No Significant Impact (FONSI)
has been prepared for each proposed NWP. These preliminary decision
documents are available at: http://www.regulations.gov (docket ID number COE-
2006-0005). They are also available by contacting Headquarters, U.S.
Army Corps of Engineers, Operations and Regulatory Community of
Practice, 441 G Street, NW., Washington, DC 20314-1000.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. We will submit a report containing the final NWPs and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. The proposed NWPs are not a ``major rule'' as
defined by 5 U.S.C. 804(2).
Executive Order 12898
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each federal agency conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
[[Page 56284]]
The proposed NWPs are not expected to negatively impact any
community, and therefore are not expected to cause any
disproportionately high and adverse impacts to minority or low-income
communities.
Executive Order 13211
The proposed NWPs are not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Authority
We are proposing to issue new NWPs, modify existing NWPs, and
reissue NWPs without change under the authority of Section 404(e) of
the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and
Harbors Act of 1899 (33 U.S.C. 401 et seq.)
Dated: September 18, 2006.
Don T. Riley,
Major General, U.S. Army, Director of Civil Works.
Nationwide Permits, Conditions, Further Information, and Definitions
A. Index of Nationwide Permits, Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Operations
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
A. Emergency Repair Activities
B. Discharges into Ditches and Canals
C. Pipeline Safety Program Designated Time Sensitive Inspections and
Repairs
D. Commercial Shellfish Aquaculture Activities
E. Coal Remining Activities
F. Underground Coal Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Wild and Scenic Rivers
16. Tribal Rights
17. Endangered Species
18. Historic Properties
19. Designated Critical Resource Waters
20. Mitigation
21. Water Quality
22. Coastal Zone Management
23. Regional and Case-by-Case Conditions
24. Use of Multiple Nationwide Permits
25. Transfer of Nationwide Permit Verifications
26. Compliance Certification
27. Pre-Construction Notification
Further Information
Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Enhancement
Ephemeral stream
Establishment (creation)
Independent utility
Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Single and complete project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Vegetated shallows
Waterbody
B. Nationwide Permits
1. Aids to Navigation. The placement of aids to navigation and
regulatory markers which are approved by and installed in accordance
with the requirements of the U.S. Coast Guard (see 33 CFR, chapter I,
subchapter C, part 66). (Section 10)
2. Structures in Artificial Canals. Structures constructed in
artificial canals within principally residential developments where the
connection of the canal to a navigable water of the United States has
been previously authorized (see 33 CFR 322.5(g)). (Section 10)
3. Maintenance. (a) The repair, rehabilitation, or replacement of
any previously authorized, currently serviceable, structure, or fill,
or of any currently serviceable structure or fill authorized by 33 CFR
330.3, provided that the structure or fill is not to be put to uses
differing from those uses specified or contemplated for it in the
original permit or the most recently authorized modification. Minor
deviations in the structure's configuration or filled area, including
those due to changes in materials, construction techniques, or current
construction codes or safety standards that are necessary to make
repair, rehabilitation, or replacement are authorized.
(b) This NWP also authorizes the removal of accumulated sediments
and debris in the vicinity of and within existing structures (e.g.,
bridges, culverted road crossings, water intake
[[Page 56285]]
structures, etc.) and the placement of new or additional riprap to
protect the structure. The removal of sediment is limited to the
minimum necessary to restore the waterway in the immediate vicinity of
the structure to the approximate dimensions that existed when the
structure was built, but cannot extend further than 200 feet in any
direction from the structure. This 200 foot limit does not apply to
maintenance dredging to remove accumulated sediments blocking or
restricting outfall and intake structures or to maintenance dredging to
remove accumulated sediments from canals associated with outfall and
intake structures. All dredged or excavated materials must be deposited
and retained in an upland area unless otherwise specifically approved
by the district engineer under separate authorization. The placement of
riprap must be the minimum necessary to protect the structure or to
ensure the safety of the structure. Any bank stabilization measures not
directly associated with the structure will require a separate
authorization from the district engineer.
(c) Separate authorization is required for temporary structures or
work in navigable waters of the United States or temporary discharges
of dredged or fill material into waters of the United States, if those
activities are necessary to conduct the maintenance activity and are
not exempt from permit requirements. This NWP does not authorize
maintenance dredging for the primary purpose of navigation or beach
restoration. This NWP does not authorize new stream channelization or
stream relocation projects.
Notification: For activities authorized by paragraph (b) of this
NWP, the permittee must submit a pre-construction notification to the
district engineer prior to commencing the activity (see general
condition 27). Where maintenance dredging is proposed, the pre-
construction notification must include information regarding the
original design capacities and configurations of the outfalls, intakes,
small impoundments, and canals. (Sections 10 and 404.)
Note: This NWP authorizes the repair, rehabilitation, or
replacement of any previously authorized structure or fill that does
not qualify for the Clean Water Act Section 404(f) exemption for
maintenance.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. Fish and wildlife harvesting devices and
activities such as pound nets, crab traps, crab dredging, eel pots,
lobster traps, duck blinds, clam and oyster digging, and small fish
attraction devices such as open water fish concentrators (sea kites,
etc.). This NWP does not authorize artificial reefs or impoundments and
semi-impoundments of waters of the United States for the culture or
holding of motile species such as lobster, or the use of covered oyster
trays or clam racks. (Sections 10 and 404.)
5. Scientific Measurement Devices. Devices, whose purpose is to
measure and record scientific data such as staff gages, tide gages,
water recording devices, water quality testing and improvement devices
and similar structures. Small weirs and flumes constructed primarily to
record water quantity and velocity are also authorized provided the
discharge is limited to 25 cubic yards. (Sections 10 and 404.)
6. Survey Activities. Survey activities, such as core sampling,
seismic exploratory operations, plugging of seismic shot holes and
other exploratory-type bore holes, exploratory trenching, soil surveys,
sampling, and historic resources surveys. For the purposes of this NWP,
the term ``exploratory trenching'' means mechanical land clearing of
the upper soil profile to expose bedrock or substrate, for the purpose
of mapping and sampling the exposed material. The area in which the
exploratory trench is dug must be restored to its pre-construction
elevation upon completion of the work This NWP authorizes the
construction of temporary pads, provided the discharge does not exceed
25 cubic yards. Discharges and structures associated with the recovery
of historic resources are not authorized by this NWP. Drilling and the
discharge of excavated material from test wells for oil and gas
exploration are not authorized by this NWP; the plugging of such wells
is authorized. Fill placed for roads and other similar activities is
not authorized by this NWP. The NWP does not authorize any permanent
structures. The discharge of drilling mud and cuttings may require a
permit under Section 402 of the Clean Water Act. (Sections 10 and 404.)
7. Outfall Structures and Associated Intake Structures. Activities
related to the construction of outfall structures and associated intake
structures, where the effluent from the outfall is authorized,
conditionally authorized, or specifically exempted, or that are
otherwise in compliance with regulations issued under the National
Pollutant Discharge Elimination System Program (Section 402 of the
Clean Water Act). The construction of intake structures is not
authorized by this NWP, unless they are directly associated with an
authorized outfall structure.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Sections 10 and 404.)
8. Oil and Gas Structures on the Outer Continental Shelf.
Structures for the exploration, production, and transportation of oil,
gas, and minerals on the outer continental shelf within areas leased
for such purposes by the Department of the Interior, Minerals
Management Service. Such structures shall not be placed within the
limits of any designated shipping safety fairway or traffic separation
scheme, except temporary anchors that comply with the fairway
regulations in 33 CFR 322.5(l). The district engineer will review such
proposals to ensure compliance with the provisions of the fairway
regulations in 33 CFR 322.5(l). Any Corps review under this NWP will be
limited to the effects on navigation and national security in
accordance with 33 CFR 322.5(f). Such structures will not be placed in
established danger zones or restricted areas as designated in 33 CFR
part 334, nor will such structures be permitted in EPA or Corps
designated dredged material disposal areas.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Section 10)
9. Structures in Fleeting and Anchorage Areas. Structures, buoys,
floats and other devices placed within anchorage or fleeting areas to
facilitate moorage of vessels where the U.S. Coast Guard has
established such areas for that purpose. (Section 10)
10. Mooring Buoys. Non-commercial, single-boat, mooring buoys.
(Section 10)
11. Temporary Recreational Structures. Temporary buoys, markers,
small floating docks, and similar structures placed for recreational
use during specific events such as water skiing competitions and boat
races or seasonal use, provided that such structures are removed within
30 days after use has been discontinued. At Corps of Engineers
reservoirs, the reservoir manager must approve each buoy or marker
individually. (Section 10)
12. Utility Line Activities. Activities required for the
construction, maintenance, repair, and removal of utility lines and
associated facilities in waters of the United States, provided the
activity does not result in the loss of greater than \1/2\ acre of
waters of the United States.
[[Page 56286]]
This NWP authorizes the construction, maintenance, or repair of
utility lines, including outfall and intake structures and the
associated excavation, backfill, or bedding for the utility lines, in
all waters of the United States, provided there is no change in
preconstruction contours. A ``utility line'' is defined as any pipe or
pipeline for the transportation of any gaseous, liquid, liquescent, or
slurry substance, for any purpose, and any cable, line, or wire for the
transmission for any purpose of electrical energy, telephone, and
telegraph messages, and radio and television communication. The term
``utility line'' does not include activities that drain a water of the
United States, such as drainage tile or french drains, but it does
apply to pipes conveying drainage from another area.
Material resulting from trench excavation may be temporarily
sidecast into waters of the United States for no more than three
months, provided that the material is not placed in such a manner that
it is dispersed by currents or other forces. The district engineer may
extend the period of temporary side casting for no more than a total of
180 days, where appropriate. In wetlands, the top 6'' to 12'' of the
trench should normally be backfilled with topsoil from the trench. The
trench cannot be constructed or backfilled in such a manner as to drain
waters of the United States (e.g., backfilling with extensive gravel
layers, creating a french drain effect). Any exposed slopes and stream
banks must be stabilized immediately upon completion of the utility
line crossing of each waterbody.
This NWP authorizes the construction, maintenance, or expansion of
substation facilities associated with a power line or utility line in
non-tidal waters of the United States, provided the activity does not
result in the loss of greater than \1/2\ acre of those waters. This NWP
does not authorize discharges into non-tidal wetlands adjacent to tidal
waters of the United States to construct substation facilities.
This NWP authorizes the construction or maintenance of foundations
for overhead utility line towers, poles, and anchors in all waters of
the United States, provided the foundations are the minimum size
necessary and separate footings for each tower leg (rather than a
larger single pad) are used where feasible.
This permit does not authorize the construction or maintenance of
access roads. The construction of permanent maintenance roads may be
authorized by NWP 14 and the construction of temporary construction
roads may be authorized by NWP 33.
This NWP may authorize utility lines in or affecting navigable
waters of the United States even if there is no associated discharge of
dredged or fill material (See 33 CFR Part 322). Overhead utility lines
constructed over section 10 waters and utility lines that are routed in
or under section 10 waters without a discharge of dredged or fill
material require a section 10 permit.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) A section 10 permit is required, or (2) the discharge will
result in the permanent or temporary loss of greater than \1/10\ acre
of waters of the United States. (See general condition 27.) (Sections
10 and 404.)
Note 1: Where the proposed utility line is constructed or
installed in navigable waters of the United States (i.e., section 10
waters), copies of the PCN and NWP verification will be sent by the
Corps to the National Oceanic and Atmospheric Administration (NOAA),
National Ocean Service (NOS), for charting the utility line to
protect navigation.
Note 2: Pipes or pipelines used to transport gaseous, liquid,
liquescent, or slurry substances over navigable waters of the United
States are considered to be bridges, not utility lines, and may
require a permit from the U.S. Coast Guard pursuant to Section 9 of
the Rivers and Harbors Act of 1899. However, any discharges of
dredged or fill material into waters of the United States associated
with such pipelines will require a section 404 permit.
13. Bank Stabilization. Bank stabilization activities necessary for
erosion prevention, provided the activity meets all of the following
criteria:
(a) No material is placed in excess of the minimum needed for
erosion protection;
(b) The bank stabilization activity is no more than 500 feet in
length, unless this criterion is waived in writing by the district
engineer;
(c) The activity will not exceed an average of one cubic yard per
running foot placed along the bank below the plane of the ordinary high
water mark or the high tide line, unless this criterion is waived in
writing by the district engineer;
(d) No material is of the type, or is placed in any location, or in
any manner, to impair surface water flow into or out of any wetland
area;
(e) No material is placed in a manner that will be eroded by normal
or expected high flows (properly anchored trees and treetops may be
used in low energy areas); and,
(f) The activity is not a stream channelization activity.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if the bank stabilization activity: (1) Involves discharges into
special aquatic sites; (2) is in excess of 500 feet in length; or (3)
will involve the discharge of greater than an average of one cubic yard
per running foot along the bank below the plane of the ordinary high
water mark or the high tide line. (See general condition 27.) (Sections
10 and 404.)
14. Linear Transportation Projects. Activities required for the
construction, expansion, modification, or improvement of linear
transportation projects (e.g., roads, highways, railways, trails,
airport runways, and taxiways) in waters of the United States. For
linear transportation projects in non-tidal waters, the discharge
cannot cause the loss of greater than \1/2\-acre of waters of the
United States. For linear transportation projects in tidal waters, the
discharge cannot cause the loss of greater than \1/3\-acre of waters of
the United States. Any stream channel modification, including bank
stabilization, is limited to the minimum necessary to construct or
protect the linear transportation project; such modifications must be
in the immediate vicinity of the project.
This NWP cannot be used to authorize non-linear features commonly
associated with transportation projects, such as vehicle maintenance or
storage buildings, parking lots, train stations, or aircraft hangars.
This NWP does not authorize temporary construction, access, and
dewatering necessary to construct the linear transportation project;
those activities may be authorized by NWP 33.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The discharge causes the loss of greater than \1/10\ acre of
waters of the United States; or (2) there is a discharge in a special
aquatic site, including wetlands. (See general condition 27.) (Sections
10 and 404.)
Note: Some discharges for the construction of farm roads, forest
roads, or temporary roads for moving mining equipment may qualify
for an exemption under Section 404(f) of the Clean Water Act (see 33
CFR 323.4).
15. U.S. Coast Guard Approved Bridges. Discharges of dredged or
fill material incidental to the construction of bridges across
navigable waters of the United States, including cofferdams, abutments,
foundation seals, piers, and
[[Page 56287]]
temporary construction and access fills, provided such discharges have
been authorized by the U.S. Coast Guard as part of the bridge permit.
Causeways and approach fills are not included in this NWP and will
require an individual section 404 permit or a regional general section
404 permit. (Section 404.)
16. Return Water From Upland Contained Disposal Areas. Return water
from an upland contained dredged material disposal area. The return
water from a contained disposal area is administratively defined as a
discharge of dredged material by 33 CFR 323.2(d), even though the
disposal itself occurs on the upland and does not require a section 404
permit. This NWP satisfies the technical requirement for a section 404
permit for the return water where the quality of the return water is
controlled by the state through the section 401 certification
procedures. The dredging activity may require a section 404 permit (33
CFR 323.2(d)), and will require a section 10 permit if located in
navigable waters of the United States. (Section 404)
17. Hydropower Projects. Discharges of dredged or fill material
associated with hydropower projects having: (a) Less than 5000 kW of
total generating capacity at existing reservoirs, where the project,
including the fill, is licensed by the Federal Energy Regulatory
Commission (FERC) under the Federal Power Act of 1920, as amended; or
(b) a licensing exemption granted by the FERC pursuant to Section 408
of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and
Section 30 of the Federal Power Act, as amended.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Section 404)
18. Minor Discharges. Minor discharges of dredged or fill material
into all waters of the United States, provided the activity meets all
of the following criteria:
(a) The quantity of discharged material and the volume of area
excavated do not exceed 25 cubic yards below the plane of the ordinary
high water mark or the high tide line;
(b) The discharge will not cause the loss of more than \1/10\ acre
of waters of the United States; and
(c) The discharge is not placed for the purpose of a stream
diversion.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The discharge or the volume of area excavated exceeds 10 cubic
yards below the plane of the ordinary high water mark or the high tide
line, or (2) the discharge is in a special aquatic site, including
wetlands. (See general condition 27.) (Sections 10 and 404.)
19. Minor Dredging. Dredging of no more than 25 cubic yards below
the plane of the ordinary high water mark or the mean high water mark
from navigable waters of the United States (i.e., section 10 waters).
This NWP does not authorize the dredging or degradation through
siltation of coral reefs, sites that support submerged aquatic
vegetation (including sites where submerged aquatic vegetation is
documented to exist but may not be present in a given year), anadromous
fish spawning areas, or wetlands, or the connection of canals or other
artificial waterways to navigable waters of the United States (see 33
CFR 322.5(g)). (Sections 10 and 404.)
20. Oil Spill Cleanup. Activities required for the containment and
cleanup of oil and hazardous substances that are subject to the
National Oil and Hazardous Substances Pollution Contingency Plan (40
CFR part 300) provided that the work is done in accordance with the
Spill Control and Countermeasure Plan required by 40 CFR 112.3 and any
existing state contingency plan and provided that the Regional Response
Team (if one exists in the area) concurs with the proposed containment
and cleanup action. (Sections 10 and 404.)
21. Surface Coal Mining Operations. Discharges of dredged or fill
material into waters of the United States associated with surface coal
mining and reclamation operations provided the activities are already
authorized by the Department of Interior (DOI), Office of Surface
Mining (OSM), or by states with approved programs under Title V of the
Surface Mining Control and Reclamation Act of 1977 or are currently
being processed as part of an integrated permit processing procedure.
Notification: The permittee must submit a pre-construction
notification to the district engineer and receive written authorization
prior to commencing the activity. (See general condition 27.) (Sections
10 and 404.)
22. Removal of Vessels. Temporary structures or minor discharges of
dredged or fill material required for the removal of wrecked,
abandoned, or disabled vessels, or the removal of man-made obstructions
to navigation. This NWP does not authorize maintenance dredging, shoal
removal, or riverbank snagging.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The vessel is listed or eligible for listing in the National
Register of Historic Places; or (2) if there is a discharge of dredged
or fill material in a special aquatic site, including wetlands. (See
general condition 27.) The permittee cannot commence the activity until
informed by the district engineer that compliance with the ``Historic
Properties'' general condition is completed.
Note: If a removed vessel is disposed of in waters of the United
States, a permit from the U.S. EPA may be required (see 40 CFR
229.3). If a Corps permit is required for vessel disposal in waters
of the United States, a separate Department of the Army
authorization will be required.
23. Approved Categorical Exclusions. Activities undertaken,
assisted, authorized, regulated, funded, or financed, in whole or in
part, by another Federal agency or department where:
(a) That agency or department has determined, pursuant to the
Council on Environmental Quality's implementing regulations for the
National Environmental Policy Act (40 CFR part 1500 et seq.), that the
activity is categorically excluded from environmental documentation,
because it is included within a category of actions which neither
individually nor cumulatively have a significant effect on the human
environment; and
(b) The Office of the Chief of Engineers (Attn: CECW-CO) has
concurred with that agency's or department's determination that the
activity is categorically excluded and approved the activity for
authorization under NWP 23.
The Office of the Chief of Engineers may require additional
conditions, including pre-construction notification, for authorization
of an agency's categorical exclusions under this NWP.
Notification: Certain categorical exclusions approved for
authorization under this NWP require the permittee to submit a pre-
construction notification to the district engineer prior to commencing
the activity (see general condition 27). The activities that require
pre-construction notification are listed in the appropriate Regulatory
Guidance Letters. (Sections 10 and 404.)
Note: The agency or department may submit an application for an
activity believed to be categorically excluded to the Office of the
Chief of Engineers (Attn: CECW-CO). Prior to approval for
authorization under this NWP of any agency's activity, the Office of
the Chief of Engineers will solicit public comment. Current
activities approved for authorization under this NWP are found in
the Corps' Regulatory Guidance Letters, which are available at:
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/rglsindx.htm
[[Page 56288]]
24. Indian Tribe or State Administered Section 404 Programs. Any
activity permitted by a state or Indian Tribe administering its own
section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is
permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899.
(Section 10)
Note 1: As of the date of the promulgation of this NWP, only New
Jersey and Michigan administer their own section 404 permit
programs.
Note 2: Those activities that do not involve a State section 404
permit are not included in this NWP, but certain structures will be
exempted by Section 154 of Pub. L. 94-587, 90 Stat. 2917 (33 U.S.C.
591) (see 33 CFR 322.3(a)(2)).
25. Structural Discharges. Discharges of material such as concrete,
sand, rock, etc., into tightly sealed forms or cells where the material
will be used as a structural member for standard pile supported
structures, such as bridges, transmission line footings, and walkways
or for general navigation, such as mooring cells, including the
excavation of bottom material from within the form prior to the
discharge of concrete, sand, rock, etc. This NWP does not authorize
filled structural members that would support buildings, building pads,
homes, house pads, parking areas, storage areas and other such
structures. The structure itself may require a section 10 permit if
located in navigable waters of the United States. (Section 404)
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities. Activities in waters of the United States associated with
the restoration of former waters, the enhancement of degraded tidal and
non-tidal wetlands and riparian areas, the establishment of tidal and
non-tidal wetlands and riparian areas, the restoration of non-tidal
streams, and the restoration and enhancement of non-tidal open waters,
provided those activities result in net increases in aquatic resource
functions and services.
To the extent that a Corps permit is required, activities
authorized by this NWP include, but are not limited to: The removal of
accumulated sediments; the installation, removal, and maintenance of
small water control structures, dikes, and berms; the installation of
current deflectors; the enhancement, restoration, or establishment of
riffle and pool stream structure; the placement of in-stream habitat
structures; modifications of the stream bed and/or banks to restore or
establish stream meanders; the backfilling of artificial channels and
drainage ditches; the removal of existing drainage structures; the
construction of small nesting islands; the construction of open water
areas; the construction of oyster habitat over unvegetated bottom in
tidal waters; shellfish seeding; activities needed to reestablish
vegetation, including plowing or discing for seed bed preparation and
the planting of appropriate wetland species; mechanized land clearing
to remove non-native invasive, exotic, or nuisance vegetation; and
other related activities. Only native plant species should be planted
at the site.
This NWP does not authorize the conversion of a stream or natural
wetlands to another aquatic use, such as the establishment of an
impoundment for waterfowl habitat. This NWP does not authorize stream
channelization. However, this NWP authorizes the relocation of non-
tidal waters, including non-tidal wetlands, on the project site
provided there are net gains in aquatic resource functions and
services. For example, this NWP may authorize the establishment of an
open water impoundment in a non-tidal emergent wetland, provided the
non-tidal emergent wetland is replaced by establishing that wetland
type on the project site. This NWP does not authorize the relocation of
tidal waters or the conversion of tidal waters, including tidal
wetlands, to other aquatic uses, such as the conversion of tidal
wetlands into open water impoundments.
Reversion. For enhancement, restoration, and establishment
activities conducted: (1) In accordance with the terms and conditions
of a binding wetland enhancement, restoration, or establishment
agreement between the landowner and the U.S. Fish and Wildlife Service
(FWS), the Natural Resources Conservation Service (NRCS), the Farm
Service Agency (FSA), the National Marine Fisheries Service (NMFS), the
National Ocean Service (NOS), or their designated state cooperating
agencies; (2) as voluntary wetland restoration, enhancement, and
establishment actions documented by the NRCS pursuant to NRCS
regulations; or (3) on reclaimed surface coal mine lands, in accordance
with a Surface Mining Control and Reclamation Act permit issued by the
OSM or the applicable state agency, this NWP also authorizes any future
discharge of dredged or fill material associated with the reversion of
the area to its documented prior condition and use (i.e., prior to the
restoration, enhancement, or establishment activities). The reversion
must occur within five years after expiration of a limited term wetland
restoration or establishment agreement or permit, and is authorized in
these circumstances even if the discharge occurs after this NWP
expires. The five-year reversion limit does not apply to agreements
without time limits reached between the landowner and the FWS, NRCS,
FSA, NMFS, NOS, or an appropriate state cooperating agency. This NWP
also authorizes discharges of dredged or fill material in waters of the
United States for the reversion of wetlands that were restored,
enhanced, or established on prior-converted cropland that has not been
abandoned or on uplands, in accordance with a binding agreement between
the landowner and NRCS, FSA, FWS, or their designated state cooperating
agencies (even though the restoration, enhancement, or establishment
activity did not require a section 404 permit). The prior condition
will be documented in the original agreement or permit, and the
determination of return to prior conditions will be made by the Federal
agency or appropriate state agency executing the agreement or permit.
Before conducting any reversion activity the permittee or the
appropriate Federal or state agency must notify the district engineer
and include the documentation of the prior condition. Once an area has
reverted to its prior physical condition, it will be subject to
whatever the Corps Regulatory requirements will be at that future date.
The requirement that the activity result in a net increase in aquatic
resource functions and services does not apply to reversion activities
meeting the above conditions. Except for the activities described
above, this NWP does not authorize any future discharge of dredged or
fill material associated with the reversion of the area to its prior
condition. In such cases a separate permit would be required for any
reversion.
Reporting: For those activities that do not require pre-
construction notification, the permittee must submit to the district
engineer a copy of: (1) The binding wetland enhancement, restoration,
or establishment agreement; (2) the NRCS documentation for the
voluntary wetland restoration, enhancement, or establishment action; or
(3) the SMCRA permit issued by OSM or the applicable state agency.
These documents must be submitted to the district engineer at least 30
days prior to commencing activities in waters of the United States
authorized by this NWP.
Notification. Except as provided below, the permittee must submit a
pre-construction notification to the district engineer prior to
commencing the activity. (See general condition 27.)
[[Page 56289]]
Except for reversion activities, pre-construction notification is not
required for:
(1) Activities conducted on non-Federal public lands and private
lands, in accordance with the terms and conditions of a binding wetland
enhancement, restoration, or establishment agreement between the
landowner and the U.S. FWS, NRCS, FSA, NMFS, NOS, or their designated
state cooperating agencies;
(2) Voluntary wetland restoration, enhancement, and establishment
actions documented by the NRCS pursuant to NRCS regulations; or
(3) The reclamation of surface coal mine lands, in accordance with
an SMCRA permit issued by the OSM or the applicable state agency.
However, the permittee should submit a copy of the appropriate
documentation. (Sections 10 and 404.)
Note: This NWP can be used to authorize compensatory mitigation
projects, including mitigation banks and in-lieu fee programs.
However, this NWP does not authorize the reversion of an area used
for a compensatory mitigation project to its prior condition, since
compensatory mitigation is generally intended to be permanent.
28. Modifications of Existing Marinas. Reconfiguration of existing
docking facilities within an authorized marina area. No dredging,
additional slips, dock spaces, or expansion of any kind within waters
of the United States is authorized by this NWP. (Section 10.)
29. Residential Developments. Discharges of dredged or fill
material into non-tidal waters of the United States for the
construction or expansion of a single residence or a multiple unit
residential development. This NWP authorizes the construction of
building foundations and building pads and attendant features that are
necessary for the use of the residence or residential development.
Attendant features may include but are not limited to roads, parking
lots, garages, yards, utility lines, storm water management facilities,
septic fields, and recreation facilities such as playgrounds, playing
fields, and golf courses (provided the golf course is an integral part
of the residential development).
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, including the loss of no more
than 300 linear feet of stream bed, unless for intermittent and
ephemeral stream beds this 300 linear foot limit is waived in writing
by the district engineer. This NWP does not authorize discharges into
non-tidal wetlands adjacent to tidal waters.
Subdivisions: For residential subdivisions, the aggregate total
loss of waters of United States authorized by this NWP cannot exceed
\1/2\ acre. This includes any loss of waters of the United States
associated with development of individual subdivision lots.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Sections 10 and 404.)
30. Moist Soil Management for Wildlife. Discharges of dredged or
fill material into non-tidal waters of the United States and
maintenance activities that are associated with moist soil management
for wildlife for the purpose of continuing ongoing, site-specific,
wildlife management activities where soil manipulation is used to
manage habitat and feeding areas for wildlife. Such activities include,
but are not limited to, plowing or discing to impede succession,
preparing seed beds, or establishing fire breaks. Sufficient riparian
areas must be maintained adjacent to all open water bodies, streams,
etc., to preclude water quality degradation due to erosion and
sedimentation. This NWP does not authorize the construction of new
dikes, roads, water control structures, etc. associated with the
management areas. The activity must not result in a net loss of aquatic
resource functions and services. This NWP does not authorize the
conversion of wetlands to uplands, impoundments or other open water
bodies. (Section 404)
Note: The repair, maintenance, or replacement of existing water
control structures or the repair or maintenance of dikes may be
authorized by NWP 3.
31. Maintenance of Existing Flood Control Facilities. Discharges of
dredged or fill material resulting from activities associated with the
maintenance of existing flood control facilities, including debris
basins, retention/detention basins, levees, and channels that: (i) Were
previously authorized by the Corps by individual permit, general
permit, by 33 CFR 330.3, or did not require a permit at the time they
were constructed, or (ii) were constructed by the Corps and transferred
to a non-Federal sponsor for operation and maintenance. Activities
authorized by this NWP are limited to those resulting from maintenance
activities that are conducted within the ``maintenance baseline,'' as
described in the definition below. Activities, including the discharges
of dredged or fill materials associated with maintenance activities in
flood control facilities in any watercourse that have previously been
determined to be within the maintenance baseline, are authorized under
this NWP. This NWP does not authorize the removal of sediment and
associated vegetation from the natural water courses except when these
activities have been included in the maintenance baseline. All dredged
material must be placed in an upland site or an authorized disposal
site in waters of the United States, and proper siltation controls must
be used.
Maintenance Baseline: The maintenance baseline is a description of
the physical characteristics (e.g., depth, width, length, location,
configuration, or design flood capacity, etc.) of a flood control
project within which maintenance activities are normally authorized by
NWP 31, subject to any case-specific conditions required by the
district engineer. The district engineer will approve the maintenance
baseline based on the approved or constructed capacity of the flood
control facility, whichever is smaller, including any areas where there
are no constructed channels, but which are part of the facility. The
prospective permittee will provide documentation of the physical
characteristics of the flood control facility (which will normally
consist of as-built or approved drawings) and documentation of the
approved and constructed design capacities of the flood control
facility. If no evidence of the constructed capacity exists, the
approved capacity will be used. The documentation will also include
best management practices to ensure that the impacts to the aquatic
environment are minimal, especially in maintenance areas where there
are no constructed channels. (The Corps may request maintenance records
in areas where there has not been recent maintenance.) Revocation or
modification of the final determination of the maintenance baseline can
only be done in accordance with 33 CFR 330.5. Except in emergencies as
described below, this NWP cannot be used until the district engineer
approves the maintenance baseline and determines the need for
mitigation and any regional or activity-specific conditions. Once
determined, the maintenance baseline will remain valid for any
subsequent reissuance of this NWP. This NWP does not authorize
maintenance of a flood control facility that has been abandoned. A
flood control facility will be considered abandoned if it has operated
at a significantly reduced capacity without needed maintenance being
accomplished in a timely manner.
Mitigation: The district engineer will determine any required
mitigation one-time only for impacts associated with maintenance work
at the same time that
[[Page 56290]]
the maintenance baseline is approved. Such one-time mitigation will be
required when necessary to ensure that adverse environmental impacts
are no more than minimal, both individually and cumulatively. Such
mitigation will only be required once for any specific reach of a flood
control project. However, if one-time mitigation is required for
impacts associated with maintenance activities, the district engineer
will not delay needed maintenance, provided the district engineer and
the permittee establish a schedule for identification, approval,
development, construction and completion of any such required
mitigation. Once the one-time mitigation described above has been
completed, or a determination made that mitigation is not required, no
further mitigation will be required for maintenance activities within
the maintenance baseline. In determining appropriate mitigation, the
district engineer will give special consideration to natural water
courses that have been included in the maintenance baseline and require
compensatory mitigation and/or best management practices as
appropriate.
Emergency Situations: In emergency situations, this NWP may be used
to authorize maintenance activities in flood control facilities for
which no maintenance baseline has been approved. Emergency situations
are those which would result in an unacceptable hazard to life, a
significant loss of property, or an immediate, unforeseen, and
significant economic hardship if action is not taken before a
maintenance baseline can be approved. In such situations, the
determination of mitigation requirements, if any, may be deferred until
the emergency has been resolved. Once the emergency has ended, a
maintenance baseline must be established expeditiously, and mitigation,
including mitigation for maintenance conducted during the emergency,
must be required as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer before any maintenance work is
conducted (see general condition 27). The pre-construction notification
may be for activity-specific maintenance or for maintenance of the
entire flood control facility by submitting a five-year (or less)
maintenance plan. The pre-construction notification must include a
description of the maintenance baseline and the dredged material
disposal site. (Sections 10 and 404.)
32. Completed Enforcement Actions. Any structure, work, or
discharge of dredged or fill material, remaining in place, or
undertaken for mitigation, restoration, or environmental benefit in
compliance with either:
(i) The terms of a final written Corps non-judicial settlement
agreement resolving a violation of Section 404 of the Clean Water Act
and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms
of an EPA 309(a) order on consent resolving a violation of Section 404
of the Clean Water Act, provided that:
(a) The unauthorized activity affected no more than 5 acres of non-
tidal waters or 1 acre of tidal waters;
(b) The settlement agreement provides for environmental benefits,
to an equal or greater degree, than the environmental detriments caused
by the unauthorized activity that is authorized by this NWP; and
(c) The district engineer issues a verification letter authorizing
the activity subject to the terms and conditions of this NWP and the
settlement agreement, including a specified completion date; or
(ii) The terms of a final Federal court decision, consent decree,
or settlement agreement resulting from an enforcement action brought by
the United States under Section 404 of the Clean Water Act and/or
Section 10 of the Rivers and Harbors Act of 1899; or
(iii) The terms of a final court decision, consent decree,
settlement agreement, or non-judicial settlement agreement resulting
from a natural resource damage claim brought by a trustee or trustees
for natural resources (as defined by the National Contingency Plan at
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107
of the Comprehensive Environmental Response, Compensation and Liability
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002
of the Oil Pollution Act of 1990, or the Park System Resource
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is
required.
Compliance is a condition of the NWP itself. Any authorization
under this NWP is automatically revoked if the permittee does not
comply with the terms of this NWP or the terms of the court decision,
consent decree, or judicial/non-judicial settlement agreement. This NWP
does not apply to any activities occurring after the date of the
decision, decree, or agreement that are not for the purpose of
mitigation, restoration, or environmental benefit. Before reaching any
settlement agreement, the Corps will ensure compliance with the
provisions of 33 CFR part 326 and 33 CFR 330.6(d)(2) and (e). (Sections
10 and 404.)
33. Temporary Construction, Access, and Dewatering. Temporary
structures, work and discharges, including cofferdams, necessary for
construction activities or access fills or dewatering of construction
sites, provided that the associated primary activity is authorized by
the Corps of Engineers or the U.S. Coast Guard. This NWP also
authorizes temporary structures, work and discharges, including
cofferdams, necessary for construction activities not subject to the
Corps or U.S. Coast Guard permit requirements. Appropriate measures
must be taken to maintain near normal downstream flows and to minimize
flooding. Fill must consist of materials, and be placed in a manner,
that will not be eroded by expected high flows. The use of dredged
material may be allowed if the district engineer determines that it
will not cause more than minimal adverse effects on aquatic resources.
Following completion of construction, temporary fill must be entirely
removed to upland areas, dredged material must be returned to its
original location, and the affected areas must be restored to the pre-
project conditions. Cofferdams cannot be used to dewater wetlands or
other aquatic areas to change their use. Structures left in place after
cofferdams are removed require a section 10 permit if located in
navigable waters of the United States. (See 33 CFR part 322.)
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
(see general condition 27). The pre-construction notification must
include a mitigation plan of reasonable measures to avoid and minimize
adverse effects to aquatic resources. (Sections 10 and 404.)
34. Cranberry Production Activities. Discharges of dredged or fill
material for dikes, berms, pumps, water control structures or leveling
of cranberry beds associated with expansion, enhancement, or
modification activities at existing cranberry production operations.
The cumulative total acreage of disturbance per cranberry production
operation, including but not limited to, filling, flooding, ditching,
or clearing, must not exceed 10 acres of waters of the United States,
including wetlands. The activity must not result in a net loss of
wetland acreage. This NWP does not authorize any discharge of dredged
or fill material related to other cranberry production activities such
as warehouses, processing facilities, or parking areas. For the
purposes of this NWP, the cumulative total of 10 acres will be measured
over the period that this NWP is valid.
[[Page 56291]]
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
For an existing cranberry production operation, the pre-construction
notification needs only to be submitted once during the period that
this NWP is valid, and the NWP would authorize that existing operation,
provided the 10-acre limit is not exceeded. (See general condition 27.)
(Section 404.)
35. Maintenance Dredging of Existing Basins. Excavation and removal
of accumulated sediment for maintenance of existing marina basins,
access channels to marinas or boat slips, and boat slips to previously
authorized depths or controlling depths for ingress/egress, whichever
is less, provided the dredged material is deposited at an upland site
and proper siltation controls are used. (Section 10.)
36. Boat Ramps. Activities required for the construction of boat
ramps, provided the activity meets all of the following criteria:
(a) The discharge into waters of the United States does not exceed
50 cubic yards of concrete, rock, crushed stone or gravel into forms,
or placement of pre-cast concrete planks or slabs, unless the 50 cubic
yard limit is waived in writing by the district engineer;
(b) The boat ramp does not exceed 20 feet in width, unless this
criterion is waived in writing by the district engineer;
(c) The base material is crushed stone, gravel or other suitable
material;
(d) The excavation is limited to the area necessary for site
preparation and all excavated material is removed to the upland; and,
(e) No material is placed in special aquatic sites, including
wetlands.
The use of unsuitable material that is structurally unstable is not
authorized. If dredging in navigable waters of the United States is
necessary to provide access to the boat ramp, the dredging may be
authorized by another NWP, a regional general permit, or an individual
permit.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The discharge into waters of the United States exceeds 50 cubic
yards, or (2) the boat ramp exceeds 20 feet in width. (See general
condition 27.) (Sections 10 and 404.)
37. Emergency Watershed Protection and Rehabilitation. Work done by
or funded by:
(a) The Natural Resources Conservation Service for a situation
requiring immediate action under its emergency Watershed Protection
Program (7 CFR part 624); or
(b) The U.S. Forest Service under its Burned-Area Emergency
Rehabilitation Handbook (FSH 509.13); or
(c) The Department of the Interior for wildland fire management
burned area emergency stabilization and rehabilitation (DOI Manual part
620, Ch. 3).
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
(see general condition 27). (Sections 10 and 404.)
38. Cleanup of Hazardous and Toxic Waste. Specific activities
required to effect the containment, stabilization, or removal of
hazardous or toxic waste materials that are performed, ordered, or
sponsored by a government agency with established legal or regulatory
authority. Court ordered remedial action plans or related settlements
are also authorized by this NWP. This NWP does not authorize the
establishment of new disposal sites or the expansion of existing sites
used for the disposal of hazardous or toxic waste.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Sections 10 and 404.)
Note: Activities undertaken entirely on a Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
site by authority of CERCLA as approved or required by EPA, are not
required to obtain permits under Section 404 of the Clean Water Act
or Section 10 of the Rivers and Harbors Act.
39. Commercial and Institutional Developments. Discharges of
dredged or fill material into non-tidal waters of the United States for
the construction or expansion of commercial and institutional building
foundations and building pads and attendant features that are necessary
for the use and maintenance of the structures. Attendant features may
include, but are not limited to, roads, parking lots, garages, yards,
utility lines, storm water management facilities, and recreation
facilities such as playgrounds and playing fields. Examples of
commercial developments include retail stores, industrial facilities,
restaurants, business parks, and shopping centers. Examples of
institutional developments include schools, fire stations, government
office buildings, judicial buildings, public works buildings,
libraries, hospitals, and places of worship. The construction of new
golf courses, new ski areas, or oil and gas wells is not authorized by
this NWP.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, including the loss of no more
than 300 linear feet of stream bed, unless for intermittent and
ephemeral stream beds this 300 linear foot limit is waived in writing
by the district engineer. This NWP does not authorize discharges into
non-tidal wetlands adjacent to tidal waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Sections 10 and 404.)
40. Agricultural Activities. Discharges of dredged or fill material
into non-tidal waters of the United States for agricultural activities,
including the construction of building pads for farm buildings.
Authorized activities include the installation, placement, or
construction of drainage tiles, ditches, or levees; mechanized land
clearing; land leveling; the relocation of existing serviceable
drainage ditches constructed in waters of the United States; and
similar activities. This NWP does not authorize discharges into non-
tidal wetlands adjacent to tidal waters.
This NWP also authorizes the construction of farm ponds in non-
tidal waters of the United States, excluding perennial streams,
provided the farm pond is used solely for agricultural purposes. This
NWP does not authorize the construction of aquaculture ponds.
This NWP also authorizes discharges of dredged or fill material
into non-tidal waters of the United States to relocate existing
serviceable drainage ditches constructed in non-tidal streams.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges into non-tidal wetlands adjacent to tidal waters. This NWP
does not authorize the relocation of greater than 300 linear feet of
existing serviceable drainage ditches constructed in non-tidal streams,
unless for drainage ditches constructed in intermittent and ephemeral
streams, this 300 linear foot limit is waived in writing by the
district engineer.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Section 404.)
Note: Some discharges for agricultural activities may qualify
for an exemption under Section 404(f) of the Clean Water Act (see 33
CFR 323.4).
41. Reshaping Existing Drainage Ditches. Discharges of dredged or
fill material into non-tidal waters of the United States, excluding
non-tidal
[[Page 56292]]
wetlands adjacent to tidal waters, to modify the cross-sectional
configuration of currently serviceable drainage ditches constructed in
waters of the United States, for the purpose of improving water
quality. The reshaping of the ditch cannot increase drainage capacity
beyond the original design capacity nor can it expand the area drained
by the ditch as originally designed (i.e., the capacity of the ditch
must be the same as originally designed and it cannot drain additional
wetlands or other waters of the United States).
This NWP does not authorize the relocation of drainage ditches
constructed in waters of the United States; the location of the
centerline of the reshaped drainage ditch must be approximately the
same as the location of the centerline of the original drainage ditch.
This NWP does not authorize stream channelization or stream relocation
projects.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity,
if more than 500 linear feet of drainage ditch will be reshaped. (See
general condition 27.) (Section 404.)
42. Recreational Facilities. Discharges of dredged or fill material
into non-tidal waters of the United States for the construction or
expansion of recreational facilities. Examples of recreational
facilities that may be authorized by this NWP include playing fields
(e.g., football fields, baseball fields), basketball courts, tennis
courts, hiking trails, bike paths, golf courses, ski areas, horse
paths, nature centers, and campgrounds (excluding recreational vehicle
parks). This NWP also authorizes the construction or expansion of small
support facilities, such as maintenance and storage buildings and
stables that are directly related to the recreational activity, but it
does not authorize the construction of hotels, restaurants, racetracks,
stadiums, arenas, or similar facilities.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, including the loss of no more
than 300 linear feet of stream bed, unless for intermittent and
ephemeral stream beds this 300 linear foot limit is waived in writing
by the district engineer. This NWP does not authorize discharges into
non-tidal wetlands adjacent to tidal waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Section 404.)
43. Stormwater Management Facilities. Discharges of dredged or fill
material into non-tidal waters of the United States for the
construction and maintenance of stormwater management facilities,
including activities for the excavation of stormwater ponds/facilities,
detention basins, and retention basins; the installation and
maintenance of water control structures, outfall structures and
emergency spillways; and the maintenance dredging of existing
stormwater management ponds/facilities and detention and retention
basins.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, including the loss of no more
than 300 linear feet of stream bed, unless for intermittent and
ephemeral stream beds this 300 linear foot limit is waived in writing
by the district engineer. This NWP does not authorize discharges into
non-tidal wetlands adjacent to tidal waters. This NWP does not
authorize discharges of dredged or fill material for the construction
of new stormwater management facilities in perennial streams.
Maintenance activities are limited to restoring the original design
capacities of the stormwater management facility.
Notification: For the construction of new stormwater management
facilities, or the expansion of existing stormwater management
facilities, the permittee must submit a pre-construction notification
to the district engineer prior to commencing the activity. (See general
condition 27.) (Section 404.)
44. Mining Activities. Discharges of dredged or fill material into
non-tidal waters of the United States for mining activities, except for
coal mining activities. The discharge must not cause the loss of
greater than \1/2\-acre of non-tidal wetlands. This NWP does not
authorize discharges into non-tidal wetlands adjacent to tidal waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) If reclamation is required by other
statutes, then a copy of the reclamation plan must be submitted with
the pre-construction notification. (Sections 10 and 404.)
A. Emergency Repair Activities. This NWP authorizes the repair,
rehabilitation, or replacement of structures or fills destroyed or
damaged by storms, floods, fire or other discrete events, provided the
repair, rehabilitation, or replacement is commenced, or is under
contract to commence, within two years of the date of their destruction
or damage. In cases of catastrophic events, such as hurricanes or
tornadoes, this two-year limit may be waived by the district engineer,
provided the permittee can demonstrate funding, contract, or other
similar delays.
This NWP also authorizes discharges of dredged or fill material,
including dredging or excavation, into all waters of the United States
for activities associated with the restoration of upland areas damaged
by storms, floods, or other discrete events. This NWP authorizes bank
stabilization to protect the restored uplands. The restoration of the
damaged areas, including any bank stabilization, must not exceed the
contours, or ordinary high water mark, that existed before the damage
occurred. The district engineer retains the right to determine the
extent of the pre-existing conditions and the extent of any restoration
work authorized by this NWP. The work must commence, or be under
contract to commence, within two years of the date that a PCN is filed,
unless this condition is waived by the district engineer. This NWP
cannot be used to reclaim lands lost to normal erosion processes over
an extended period.
Minor dredging is limited to the amount necessary to restore the
pre-existing bottom contours of the waterbody. If temporary structures
and discharges, including cofferdams, are necessary to conduct the
repair, rehabilitation, or replacement of structures or fills, separate
authorization is required.
Notification: The permittee must submit a pre-construction
notification to the district engineer (see general condition 27) within
12-months of the date of the damage. The pre-construction notification
should include documentation, such as a recent topographic survey or
photographs, to justify the extent of the proposed restoration.
(Sections 10 and 404.)
Note: Uplands lost as a result of a storm, flood, or other
discrete event can be replaced without a section 404 permit, if the
uplands are restored to the ordinary high water mark (in non-tidal
waters) or high tide line (in tidal waters). (See also 33 CFR
328.5.)
B. Discharges in Ditches and Canals. Discharges of dredged or fill
material into ditches and canals that are constructed in uplands,
receive water from another water of the United States, divert water to
another water of the United States, and are determined to be waters of
the United States. The discharge must not cause the loss of greater
than one acre of waters of the United States. This NWP does not
authorize discharges of dredged or fill material into ditches or canals
constructed in streams or other waters
[[Page 56293]]
of the United States, or in streams that have been relocated in
uplands.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity,
if the dredged or fill material will be discharged into more than 500
linear feet of ditch or canal. (See general condition 27.) (Section
404.)
C. Pipeline Safety Program Designated Time Sensitive Inspections
and Repairs. Activities required for the inspection, repair,
rehabilitation, or replacement of any currently serviceable structure
or fill for pipelines that have been identified by the Pipeline and
Hazardous Materials Safety Administration's Pipeline Safety Program
(PHP) within the U.S. Department of Transportation as time-sensitive
(see 49 CFR parts 192 and 195) and additional maintenance activities
done in conjunction with the time-sensitive inspection and repair
activities. All activities must meet the following criteria:
(a) Appropriate measures must be taken to maintain normal
downstream flows and minimize flooding to the maximum extent
practicable when temporary structures, work and discharges, including
cofferdams, are necessary for construction activities or access fills
or dewatering of construction sites;
(b) Material resulting from trench excavation may be temporarily
sidecast into waters of the United States for no more than three
months, provided that the material is not placed in such a manner that
it is dispersed by currents or other forces. The district engineer may
extend the period of temporary side casting for no more than a total of
180 days, where appropriate. The trench cannot be constructed or
backfilled in such a manner as to drain waters of the United States
(e.g., backfilling with extensive gravel layers, creating a french
drain effect);
(c) Temporary fill must consist of materials, and be placed in a
manner, that will not be eroded by expected high flows. Temporary
structures and fills must be removed upon completion of the activity
and the affected areas returned to pre-construction conditions;
(d) In wetlands, the top 6'' to 12'' of the trench should normally
be backfilled with topsoil from the trench so that there is no change
in preconstruction contours;
(e) To the maximum extent practicable, the restoration of open
waters must be to the pre-construction course, condition, capacity, and
location of the waterbody;
(f) Any exposed slopes and stream banks must be stabilized
immediately upon completion of the project;
(g) Additional maintenance activities done in conjunction with the
time-sensitive inspection or repair must not result in additional
losses of waters of the United States; and,
(h) The permittee is a participant in the Pipeline Repair and
Environmental Guidance System (PREGS).
Reporting: The permittee must submit a post construction report to
the PHP within seven days after completing the work. The report must be
submitted electronically to PHP via PREGS. The report must contain the
following information: project sites located in waters of the United
States, temporary access routes, stream dewatering sites, temporary
fills and temporary structures identified on a map of the pipeline
corridor; photographs of the pre- and post-construction work areas
located in waters of the United States; and a list of best management
practices employed for each pipeline segment shown on the map. (Section
10 and 404.)
D. Commercial Shellfish Aquaculture Activities. This NWP authorizes
the installation of buoys, floats, racks, trays, nets, lines, and other
structures necessary for the continued operation of the aquaculture
activity. This NWP also authorizes discharges of dredged or fill
material necessary for shellfish seeding, rearing, cultivating,
transplanting, and harvesting activities. Rafts and other floating
structures must be securely anchored and clearly marked.
This NWP does not authorize the expansion of the project area for
the commercial shellfish aquaculture activity. This NWP does not
authorize the cultivation of new species (i.e., species not previously
cultivated by the existing commercial shellfish aquaculture activity).
Notification: The permittee must submit a pre-construction
notification to the district engineer if: (1) The project area is
greater than 25 acres; (2) more than 10 acres of the project area is
occupied by submerged aquatic vegetation; (3) the permittee intends to
relocate existing operations into portions of the project area not
previously used for aquaculture activities; or (4) dredge harvesting is
conducted in areas inhabited by submerged aquatic vegetation. (See
general condition 27.) (Sections 10 and 404.)
Note: The permittee should notify the applicable U.S. Coast
Guard office regarding the project.
E. Coal Remining Activities. Discharges of dredged or fill material
into non-tidal waters of the United States associated with the remining
and reclamation of lands that were previously mined for coal, provided
the activities are already authorized by the Department of Interior
(DOI), Office of Surface Mining (OSM), or by states with approved
programs under Title V of the Surface Mining Control and Reclamation
Act of 1977 or are currently being processed as part of an integrated
permit processing procedure. Areas previously disturbed by mining
activities include reclaimed mine sites, abandoned mine land areas, or
lands under bond forfeiture contracts. The permittee must clearly
demonstrate to the district engineer that the reclamation plan will
result in a net increase in aquatic resource functions. As part of the
project, the permittee may conduct coal mining activities in an
adjacent area, provided the newly mined area is less than 40 percent of
the area being remined and reclaimed.
Notification: The permittee must submit a pre-construction
notification to the district engineer and receive written authorization
prior to commencing the activity. (See general condition 27.) (Sections
10 and 404.)
F. Underground Coal Mining Activities. Discharges of dredged or
fill material into non-tidal waters of the United States associated
with underground coal mining and reclamation operations provided the
activities are authorized by the Department of Interior (DOI), Office
of Surface Mining (OSM), or by states with approved programs under
Title V of the Surface Mining Control and Reclamation Act of 1977 or
are currently being processed as part of an integrated permit
processing procedure.
The discharge must not cause the loss of greater than 1/2 acre of
non-tidal waters of the United States. This NWP does not authorize
discharges into non-tidal wetlands adjacent to tidal waters. This NWP
does not authorize coal preparation and processing activities outside
of the mine site.
Notification: The permittee must submit a pre-construction
notification to the district engineer. (See general condition 27.) If
reclamation is required by other statutes, then a copy of the
reclamation plan must be submitted with the pre-construction
notification. (Sections 10 and 404.)
Note: Coal preparation and processing activities outside of the
mine site may be authorized by NWP 21.
[[Page 56294]]
C. Nationwide Permit General Conditions
Note: To qualify for NWP authorization, the prospective
permittee must comply with the following general conditions, as
appropriate, in addition to any regional or case-specific conditions
imposed by the division engineer or district engineer. Prospective
permittees should contact the appropriate Corps district office to
determine if regional conditions have been imposed on an NWP.
Prospective permittees should also contact the appropriate Corps
district office to determine the status of Clean Water Act Section
401 water quality certification and/or Coastal Zone Management Act
consistency for an NWP.
1. Navigation. (a) No activity may cause more than a minimal
adverse effect on navigation.
(b) Any safety lights and signals prescribed by the U.S. Coast
Guard, through regulations or otherwise, must be installed and
maintained at the permittee's expense on authorized facilities in
navigable waters of the United States.
(c) The permittee understands and agrees that, if future operations
by the United States require the removal, relocation, or other
alteration, of the structure or work herein authorized, or if, in the
opinion of the Secretary of the Army or his authorized representative,
said structure or work shall cause unreasonable obstruction to the free
navigation of the navigable waters, the permittee will be required,
upon due notice from the Corps of Engineers, to remove, relocate, or
alter the structural work or obstructions caused thereby, without
expense to the United States. No claim shall be made against the United
States on account of any such removal or alteration.
2. Aquatic Life Movements. No activity may substantially disrupt
the necessary life cycle movements, if known, of those species of
aquatic life indigenous to the waterbody, including those species that
normally migrate through the area, unless the activity's primary
purpose is to impound water. Culverts placed in streams must be
installed to maintain low flow conditions.
3. Spawning Areas. Activities in spawning areas during spawning
seasons must be avoided to the maximum extent practicable. Activities
that result in the physical destruction (e.g., excavate, fill, or
smother downstream by substantial turbidity) of an important spawning
area are not authorized.
4. Migratory Bird Breeding Areas. Activities in waters of the
United States that serve as breeding areas for migratory birds must be
avoided to the maximum extent practicable.
5. Shellfish Beds. No activity may occur in areas of concentrated
shellfish populations, unless the activity is directly related to a
shellfish harvesting activity authorized by NWPs 4 and D.
6. Suitable Material. No activity may use unsuitable material
(e.g., trash, debris, car bodies, asphalt, etc.). Material used for
construction or discharged must be free from toxic pollutants in toxic
amounts (see Section 307 of the Clean Water Act).
7. Water Supply Intakes. No activity may occur in the proximity of
a public water supply intake, except where the activity is for the
repair or improvement of public water supply intake structures or
adjacent bank stabilization.
8. Adverse Effects From Impoundments. If the activity creates an
impoundment of water, adverse effects to the aquatic system due to
accelerating the passage of water, and/or restricting its flow must be
minimized to the maximum extent practicable.
9. Management of Water Flows. To the maximum extent practicable,
the pre-construction course, condition, capacity, and location of open
waters must be maintained for each activity, including stream
channelization and storm water management activities, except as
provided below. The activity must be constructed to withstand expected
high flows. The activity must not restrict or impede the passage of
normal or high flows, unless the primary purpose of the activity is to
impound water. The activity may alter the pre-construction course,
condition, capacity, and location of open waters if it benefits the
aquatic environment (e.g., stream restoration or relocation
activities).
10. Fills Within 100-Year Floodplains. The activity must comply
with any applicable FEMA-approved state or local floodplain management
requirements.
11. Equipment. Heavy equipment working in wetlands or mudflats must
be placed on mats, or other measures must be taken to minimize soil
disturbance.
12. Soil Erosion and Sediment Controls. Appropriate soil erosion
and sediment controls must be used and maintained in effective
operating condition during construction, and all exposed soil and other
fills, as well as any work below the ordinary high water mark or high
tide line, must be permanently stabilized at the earliest practicable
date. Permittees are encouraged to perform work within waters of the
United States during periods of low-flow or no-flow.
13. Removal of Temporary Fills. Temporary fills must be removed in
their entirety and the affected areas returned to pre-construction
conditions.
14. Proper Maintenance. Any authorized structure or fill shall be
properly maintained, including maintenance to ensure public safety.
15. Wild and Scenic Rivers. No activity may occur in a component of
the National Wild and Scenic River System, or in a river officially
designated by Congress as a ``study river'' for possible inclusion in
the system while the river is in an official study status, unless the
appropriate Federal agency with direct management responsibility for
such river, has determined in writing that the proposed activity will
not adversely affect the Wild and Scenic River designation or study
status. Information on Wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency in the area (e.g., National
Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish
and Wildlife Service).
16. Tribal Rights. No activity or its operation may impair reserved
tribal rights, including, but not limited to, reserved water rights and
treaty fishing and hunting rights.
17. Endangered Species. (a) No activity is authorized under any NWP
which is likely to jeopardize the continued existence of a threatened
or endangered species or a species proposed for such designation, as
identified under the Federal Endangered Species Act (ESA), or which
will destroy or adversely modify the critical habitat of such species.
No activity is authorized under any NWP which ``may affect'' a listed
species or critical habitat, unless Section 7 consultation addressing
the effects of the proposed activity has been completed.
(b) Non-federal permittees shall notify the district engineer if
any listed species or designated critical habitat might be affected or
is in the vicinity of the project, or if the project is located in
designated critical habitat, and shall not begin work on the activity
until notified by the district engineer that the requirements of the
ESA have been satisfied and that the activity is authorized. For
activities that may affect Federally-listed endangered or threatened
species or designated critical habitat, the pre-construction
notification must include the name(s) of the endangered or threatened
species that may be affected by the proposed work or that utilize the
designated critical habitat that may be affected by the proposed work.
The district engineer will determine whether the proposed
[[Page 56295]]
activity ``may affect'' or will have ``no effect'' to listed species
and designated critical habitat and will notify the applicant of the
Corps' determination within 45 days of receipt of a complete pre-
construction notification. Applicants shall not begin work until the
Corps has provided notification the proposed activities will have ``no
effect'' on listed species or critical habitat, or until Section 7
consultation has been completed.
(c) As a result of formal or informal consultation with the FWS or
NMFS the district engineer may add species-specific regional endangered
species conditions to the NWPs.
(d) Authorization of an activity by a NWP does not authorize the
``take'' of a threatened or endangered species as defined under the
ESA. In the absence of separate authorization (e.g., an ESA Section 10
Permit, a Biological Opinion with ``incidental take'' provisions, etc.)
from the U.S. FWS or the NMFS, both lethal and non-lethal ``takes'' of
protected species are in violation of the ESA. Information on the
location of threatened and endangered species and their critical
habitat can be obtained directly from the offices of the U.S. FWS and
NMFS or their world wide Web pages at http://www.fws.gov/ and http://www
.noaa.gov/fisheries.html respectively.
18. Historic Properties. (a) No activity which may affect historic
properties listed, or eligible for listing, in the National Register of
Historic Places is authorized, until the district engineer has complied
with the current procedures for addressing the requirements of Section
106 of the National Historic Preservation Act (NHPA).
(b) The prospective permittee must notify the district engineer if
the authorized activity may affect any historic properties listed,
determined to be eligible, or which the prospective permittee has
reason to believe may be eligible for listing on the National Register
of Historic Places, and shall not begin the activity until notified by
the district engineer that the requirements of the NHPA have been
satisfied and that the activity is authorized. The district engineer
will notify the permittee within 45 days of receipt of a complete pre-
construction notification whether NHPA section 106 consultation is
required. If NHPA section 106 consultation is required and will occur
under the NWP process, the district engineer will notify the permittee
that he or she cannot begin work until consultation is completed.
(c) Information on the location and existence of historic resources
can be obtained from the State Historic Preservation Officer or Tribal
Historic Preservation Officer, as appropriate, and the National
Register of Historic Places (see 33 CFR 330.4(g)). For activities that
may affect historic properties listed in, or eligible for listing in,
the National Register of Historic Places, the pre-construction
notification must state which historic property may be affected by the
proposed work or include a vicinity map indicating the location of the
historic property.
19. Designated Critical Resource Waters. Critical resource waters
include, NOAA-designated marine sanctuaries, National Estuarine
Research Reserves, state natural heritage sites, and outstanding
national resource waters or other waters officially designated by a
state as having particular environmental or ecological significance and
identified by the district engineer after notice and opportunity for
public comment. The district engineer may also designate additional
critical resource waters after notice and opportunity for comment.
(a) Discharges of dredged or fill material into waters of the
United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31,
35, 39, 40, 42, 43, and 44 for any activity within, or directly
affecting, critical resource waters, including wetlands adjacent to
such waters.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33,
34, 36, 37, and 38, notification is required in accordance with general
condition 27, for any activity proposed in the designated critical
resource waters including wetlands adjacent to those waters. The
district engineer may authorize activities under these NWPs only after
it is determined that the impacts to the critical resource waters will
be no more than minimal.
20. Mitigation. The district engineer will consider the following
factors when determining appropriate and practicable mitigation
necessary to ensure that adverse effects on the aquatic environment are
minimal:
(a) The activity must be designed and constructed to avoid and
minimize adverse effects, both temporary and permanent, to waters of
the United States to the maximum extent practicable at the project site
(i.e., on site).
(b) Mitigation in all its forms (avoiding, minimizing, rectifying,
reducing, or compensating) will be required to the extent necessary to
ensure that the adverse effects to the aquatic environment are minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be
required for all wetland losses that exceed \1/10\ acre and require
pre-construction notification, unless the district engineer determines
in writing that some other form of mitigation would be more
environmentally appropriate and provides a project-specific waiver of
this requirement. For wetland losses of \1/10\ acre or less that
require pre-construction notification, the district engineer may
determine on a case-by-case basis that compensatory mitigation is
required to ensure that the activity result in minimal adverse effects
on the aquatic environment. Since the likelihood of success is greater
and the impacts to potentially valuable uplands are reduced, wetland
restoration should be the first compensatory mitigation option
considered.
(d) Compensatory mitigation will not be used to increase the
acreage losses allowed by the acreage limits of the NWPs. For example,
if an NWP has an acreage limit of \1/2\ acre, it cannot be used to
authorize any project with greater than \1/2\ acre of loss of waters,
even if mitigation is provided that replaces or restores some of the
lost waters. However, compensatory mitigation can and should be used,
as necessary, to ensure that a project already meeting the established
acreage limits also satisfies the minimal impact requirement associated
with NWPs.
(e) Compensatory mitigation plans for projects in or near streams
or other open waters will normally include a requirement for the
establishment, maintenance, and legal protection (e.g., conservation
easements) of riparian areas next to open waters. In some cases,
riparian areas may be the only compensatory mitigation required.
Riparian areas should consist of native species. The width of the
required riparian area will address documented water quality or aquatic
habitat loss concerns. Normally, the riparian area will be 25 to 50
feet wide on each side of the stream, but the district engineer may
require slightly wider riparian areas to address documented water
quality or habitat loss concerns. Where both wetlands and open waters
exist on the project site, the district engineer will determine the
appropriate compensatory mitigation (e.g., riparian areas or wetlands
compensation) based on what is best for the aquatic environment on a
watershed basis. In cases where riparian areas are determined to be the
most appropriate form of compensatory mitigation, the district engineer
may waive or reduce the requirement to provide wetland compensatory
mitigation for wetland losses.
[[Page 56296]]
(f) Permittees may propose the use of mitigation banks, in-lieu fee
arrangements or separate activity-specific compensatory mitigation. In
those cases, the mitigation provisions will specify the party
responsible for accomplishing and/or complying with the mitigation
plan.
(g) Where certain functions and services of waters of the United
States are permanently adversely affected, such as the conversion of a
forested or scrub-shrub wetland to a herbaceous wetland in a
permanently maintained utility line right-of-way, mitigation may be
required to reduce the adverse effects of the project to the minimal
level.
21. Water Quality. Where States and authorized Tribes, or EPA where
applicable, have not previously certified compliance of an NWP with CWA
Section 401, individual 401 Water Quality Certification must be
obtained or waived (see 33 CFR 330.4(c)). The district engineer or
State or Tribe may require additional water quality management measures
to ensure that the authorized activity does not result in more than
minimal degradation of water quality.
22. Coastal Zone Management. In coastal states where an NWP has not
previously received a state coastal zone management consistency
concurrence, an individual state coastal zone management consistency
concurrence must be obtained or waived (see 33 CFR 330.4(d)). The
district engineer or a State may require additional measures to ensure
that the authorized activity is consistent with state coastal zone
management requirements.
23. Regional and Case-By-Case Conditions. The activity must comply
with any regional conditions that may have been added by the Division
Engineer (see 33 CFR 330.4(e)) and with any case specific conditions
added by the Corps or by the state, Indian Tribe, or U.S. EPA in its
section 401 Water Quality Certification, or by the state in its Coastal
Zone Management Act consistency determination.
24. Use of Multiple Nationwide Permits. The use of more than one
NWP for a single and complete project is prohibited, except when the
acreage loss of waters of the United States authorized by the NWPs does
not exceed the acreage limit of the NWP with the highest specified
acreage limit. For example, if a road crossing over tidal waters is
constructed under NWP 14, with associated bank stabilization authorized
by NWP 13, the maximum acreage loss of waters of the United States for
the total project cannot exceed \1/3\-acre.
25. Transfer of Nationwide Permit Verifications. If the permittee
sells the property associated with a nationwide permit verification,
the permittee may transfer the nationwide permit verification to the
new owner by submitting a letter to the appropriate Corps district
office to validate the transfer. A copy of the nationwide permit
verification must be attached to the letter, and the letter must
contain the following statement and signature:
``When the structures or work authorized by this
nationwide permit are still in existence at the time the property is
transferred, the terms and conditions of this nationwide permit,
including any special conditions, will continue to be binding on the
new owner(s) of the property. To validate the transfer of this
nationwide permit and the associated liabilities associated with
compliance with its terms and conditions, have the transferee sign
and date below.''
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(Transferee)
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(Date)
26. Compliance Certification. Each permittee who received an NWP
verification from the Corps must submit a signed certification
regarding the completed work and any required mitigation. The
certification form must be forwarded by the Corps with the NWP
verification letter and will include:
(a) A statement that the authorized work was done in accordance
with the NWP authorization, including any general or specific
conditions;
(b) A statement that any required mitigation was completed in
accordance with the permit conditions; and
(c) The signature of the permittee certifying the completion of the
work and mitigation.
27. Pre-Construction Notification.
(a) Timing. Where required by the terms of the NWP, the prospective
permittee must notify the district engineer by submitting a pre-
construction notification (PCN) as early as possible. The district
engineer must determine if the PCN is complete within 30 days of the
date of receipt and can request additional information necessary to
make the PCN complete only once. However, if the prospective permittee
does not provide all of the requested information, then the district
engineer will notify the prospective permittee that the PCN is still
incomplete and the PCN review process will not commence until all of
the requested information has been received by the district engineer.
The prospective permittee shall not begin the activity:
(1) Until notified in writing by the district engineer that the
activity may proceed under the NWP with any special conditions imposed
by the district or division engineer; or
(2) If 45 days have passed from the district engineer's receipt of
the complete PCN and the prospective permittee has not received written
notice from the District or Division Engineer. However, the permittee
cannot begin the activity until any consultation required under Section
7 of the Endangered Species Act (see 33 CFR 330.4(f) and general
condition 17) and/or Section 106 of the National Historic Preservation
(see 33 CFR 330.4(g) and general condition 18) is completed. Also, work
cannot begin under NWP 21 until the permittee has received written
approval from the Corps. If the District or Division Engineer notifies
the permittee in writing that an individual permit is required within
45 days of receipt of a complete PCN, the permittee cannot begin the
activity until an individual permit has been obtained. Subsequently,
the permittee's right to proceed under the NWP may be modified,
suspended, or revoked only in accordance with the procedure set forth
in 33 CFR 330.5(d)(2).
(b) Contents of Pre-Construction Notification: The PCN must be in
writing and include the following information:
(1) Name, address and telephone numbers of the prospective
permittee;
(2) Location of the proposed project;
(3) A description of the proposed project; the project's purpose;
direct and indirect adverse environmental effects the project would
cause; any other NWP(s), regional general permit(s), or individual
permit(s) used or intended to be used to authorize any part of the
proposed project or any related activity. The description should be
sufficiently detailed to allow the district engineer to determine that
the adverse effects of the project will be minimal and any necessary
compensatory mitigation. Sketches should be provided when necessary to
show that the activity complies with the terms of the NWP. (Sketches
usually clarify the project and when provided result in a quicker
decision.);
(4) The PCN must include a delineation of special aquatic sites and
other waters of the United States on the project site. Wetland
delineations must be prepared in accordance with the current method
required by the Corps. The permittee may ask the Corps to delineate the
special aquatic sites and other waters of the United States, but there
may be a delay if the Corps does the delineation, especially if the
project site is large or contains many wetland areas. Furthermore, the
45 day period
[[Page 56297]]
will not start until the delineation has been completed and submitted
to the Corps, where appropriate;
(5) If the proposed activity will result in the loss of greater
than 1/10 acre of wetlands and a PCN is required, the prospective
permittee must submit a statement describing how the mitigation
requirement will be satisfied.
(6) For an activity that may adversely affect Federally-listed
endangered or threatened species, the PCN must include the name(s) of
those endangered or threatened species that may be affected by the
proposed work or utilize the designated critical habitat that may be
affected by the proposed work; and
(7) For an activity that may affect a historic property listed in,
or eligible for listing in, the National Register of Historic Places,
the PCN must state which historic property may be affected by the
proposed work or include a vicinity map indicating the location of the
historic property.
(c) Form of Pre-Construction Notification: The standard individual
permit application form (Form ENG 4345) may be used, but the completed
application form must clearly indicate that it is a PCN and must
include all of the information required in paragraphs (b)(1) through
(7) of this general condition. A letter containing the required
information may also be used.
(d) Agency Coordination: The district engineer will consider any
comments from Federal and state agencies concerning the proposed
activity's compliance with the terms and conditions of the NWPs and the
need for mitigation to reduce the project's adverse environmental
effects to a minimal level.
For activities requiring pre-construction notification to the
district engineer that result in the loss of greater than \1/2\-acre of
waters of the United States, the district engineer will immediately
provide (e.g., via facsimile transmission, overnight mail, or other
expeditious manner) a copy of the PCN to the appropriate Federal or
state offices (U.S. FWS, state natural resource or water quality
agency, EPA, State Historic Preservation Officer (SHPO) or Tribal
Historic Preservation Office (THPO), and, if appropriate, the NMFS).
With the exception of NWP 37, these agencies will then have 10 calendar
days from the date the material is transmitted to telephone or fax the
district engineer notice that they intend to provide substantive, site-
specific comments. If so contacted by an agency, the district engineer
will wait an additional 15 calendar days before making a decision on
the pre-construction notification. The district engineer will fully
consider agency comments received within the specified time frame, but
will provide no response to the resource agency, except as provided
below. The district engineer will indicate in the administrative record
associated with each pre-construction notification that the resource
agencies' concerns were considered. For NWP 37, the emergency watershed
protection and rehabilitation activity may proceed immediately and the
district engineer will consider any comments received to decide whether
the NWP 37 authorization should be modified, suspended, or revoked in
accordance with the procedures at 33 CFR 330.5.
As required by Section 305(b)(4)(B) of the Magnuson-Stevens Fishery
Conservation and Management Act, the district engineer will provide a
response to NMFS within 30 days of receipt of any Essential Fish
Habitat conservation recommendations.
Applicants are encouraged to provide the Corps multiple copies of
pre-construction notifications to expedite agency coordination.
(e) District Engineer's Decision: In reviewing the PCN for the
proposed activity, the district engineer will determine whether the
activity authorized by the NWP will result in more than minimal
individual or cumulative adverse environmental effects or may be
contrary to the public interest. If the proposed activity will result
in a loss of greater than 1/10 acre of wetlands, the prospective
permittee should submit a proposed mitigation plan with the PCN.
Applicants may also propose compensatory mitigation for projects with
smaller impacts. The district engineer will consider any proposed
compensatory mitigation the applicant has included in the proposal in
determining whether the net adverse environmental effects to the
aquatic environment of the proposed work are minimal. The compensatory
mitigation proposal may be either conceptual or detailed. If the
district engineer determines that the activity complies with the terms
and conditions of the NWP and that the adverse effects on the aquatic
environment are minimal, after considering mitigation, the district
engineer will notify the permittee and include any conditions the
district engineer deems necessary. The district engineer must approve
any compensatory mitigation proposal before the permittee commences
work. If the prospective permittee elects to submit a compensatory
mitigation plan with the PCN, the district engineer will expeditiously
review the proposed compensatory mitigation plan. The district engineer
must review the plan within 45 days of receiving a complete PCN and
determine whether the proposed mitigation would ensure no more than
minimal adverse effects on the aquatic environment. If the net adverse
effects of the project on the aquatic environment (after consideration
of the compensatory mitigation proposal) are determined by the district
engineer to be minimal, the district engineer will provide a timely
written response to the applicant. The response will state that the
project can proceed under the terms and conditions of the NWP.
If the district engineer determines that the adverse effects of the
proposed work are more than minimal, then the district engineer will
notify the applicant either: (1) That the project does not qualify for
authorization under the NWP and instruct the applicant on the
procedures to seek authorization under an individual permit; (2) that
the project is authorized under the NWP subject to the applicant's
submission of a mitigation proposal that would reduce the adverse
effects on the aquatic environment to the minimal level; or (3) that
the project is authorized under the NWP with specific modifications or
conditions. Where the district engineer determines that mitigation is
required to ensure no more than minimal adverse effects occur to the
aquatic environment, the activity will be authorized within the 45-day
PCN period. The authorization will include the necessary conceptual or
specific mitigation or a requirement that the applicant submit a
mitigation proposal that would reduce the adverse effects on the
aquatic environment to the minimal level. When mitigation is required,
no work in waters of the United States may occur until the district
engineer has approved a specific mitigation plan.
D. Further Information
1. District Engineers have authority to determine if an activity
complies with the terms and conditions of an NWP.
2. NWPs do not obviate the need to obtain other federal, state, or
local permits, approvals, or authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of
others.
5. NWPs do not authorize interference with any existing or proposed
Federal project.
E. Definitions
Best management practices (BMPs): Policies, practices, procedures,
or structures implemented to mitigate the
[[Page 56298]]
adverse environmental effects on surface water quality resulting from
development. BMPs are categorized as structural or non-structural.
Compensatory mitigation: The restoration, establishment,
enhancement, or preservation of aquatic resources for the purpose of
compensating for unavoidable adverse impacts which remain after all
appropriate and practicable avoidance and minimization has been
achieved.
Currently serviceable: Useable as is or with some maintenance, but
not so degraded as to essentially require reconstruction.
Enhancement: The manipulation of the physical, chemical, or
biological characteristics of an aquatic resource to heighten,
intensify, or improve a specific aquatic resource function(s).
Enhancement results in the gain of selected aquatic resource
function(s), but may also lead to a decline in other aquatic resource
function(s). Enhancement does not result in a gain in aquatic resource
area.
Ephemeral stream: An ephemeral stream has flowing water only
during, and for a short duration after, precipitation events in a
typical year. Ephemeral stream beds are located above the water table
year-round. Groundwater is not a source of water for the stream. Runoff
from rainfall is the primary source of water for stream flow.
Establishment (creation): The manipulation of the physical,
chemical, or biological characteristics present to develop an aquatic
resource that did not previously exist at an upland or deepwater site.
Establishment results in a gain in aquatic resource area.
Independent utility: A test to determine what constitutes a single
and complete project in the Corps regulatory program. A project is
considered to have independent utility if it would be constructed
absent the construction of other projects in the project area. Portions
of a multi-phase project that depend upon other phases of the project
do not have independent utility. Phases of a project that would be
constructed even if the other phases were not built can be considered
as separate single and complete projects with independent utility.
Intermittent stream: An intermittent stream has flowing water
during certain times of the year, when groundwater provides water for
stream flow. During dry periods, intermittent streams may not have
flowing water. Runoff from rainfall is a supplemental source of water
for stream flow.
Loss of waters of the United States: Waters of the United States
that include the filled area and other waters that are permanently
adversely affected by flooding, excavation, or drainage because of the
regulated activity. Permanent adverse effects include permanent
discharges of dredged or fill material that change an aquatic area to
dry land, increase the bottom elevation of a waterbody, or change the
use of a waterbody. The acreage of loss of waters of the United States
is a threshold measurement of the impact to existing waters for
determining whether a project may qualify for an NWP; it is not a net
threshold that is calculated after considering compensatory mitigation
that may be used to offset losses of aquatic functions and services.
The loss of stream bed includes the linear feet of stream bed that is
filled or excavated. Waters of the United States temporarily filled,
flooded, excavated, or drained, but restored to preconstruction
contours and elevations after construction, are not included in the
measurement of loss of waters of the United States. Impacts resulting
from activities eligible for exemptions under Section 404(f) of the
Clean Water Act are not considered when calculating the loss of waters
of the United States.
Non-tidal wetland: A non-tidal wetland is a wetland (i.e., a water
of the United States) that is not subject to the ebb and flow of tidal
waters. The definition of a wetland can be found at 33 CFR 328.3(b).
Non-tidal wetlands contiguous to tidal waters are located landward of
the high tide line (i.e., spring high tide line).
Open water: For purposes of the NWPs, an open water is any area
that in a year with normal patterns of precipitation has water flowing
or standing above ground to the extent that an ordinary high water mark
(OHWM) can be determined. An OHWM is a line on the shore established by
the fluctuations of water and indicated by physical characteristics or
other appropriate means that consider the characteristics of the
surrounding areas (see 33 CFR 328.3(e)). Aquatic vegetation within the
area of standing or flowing water is either non-emergent, sparse, or
absent. Vegetated shallows are considered to be open waters. Examples
of ``open waters'' include rivers, streams, lakes, and ponds.
Perennial stream: A perennial stream has flowing water year-round
during a typical year. The water table is located above the stream bed
for most of the year. Groundwater is the primary source of water for
stream flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Practicable: Available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of
overall project purposes.
Pre-construction notification: A request submitted by the project
proponent to the Corps for confirmation that a particular activity is
authorized by nationwide permit. The request may be a permit
application, letter, or similar document that includes information
about the proposed work and its anticipated environmental effects. Pre-
construction notification may be required by the terms and conditions
of a nationwide permit, or by regional conditions. A pre-construction
notification may be voluntarily submitted in cases where pre-
construction notification is not required and the project proponent
wants confirmation that the activity is authorized by nationwide
permit.
Preservation: The removal of a threat to, or preventing the decline
of, aquatic resources by an action in or near those aquatic resources.
This term includes activities commonly associated with the protection
and maintenance of aquatic resources through the implementation of
appropriate legal and physical mechanisms. Preservation does not result
in a gain of aquatic resource area or functions.
Re-establishment: The manipulation of the physical, chemical, or
biological characteristics of a site with the goal of returning
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and
results in a gain in aquatic resource area.
Rehabilitation: The manipulation of the physical, chemical, or
biological characteristics of a site with the goal of repairing
natural/historic functions to a degraded aquatic resource.
Rehabilitation results in a gain in aquatic resource function, but does
not result in a gain in aquatic resource area.
Restoration: The manipulation of the physical, chemical, or
biological characteristics of a site with the goal of returning
natural/historic functions to a former or degraded aquatic resource.
For the purpose of tracking net gains in aquatic resource area,
restoration is divided into two categories: re-establishment and
rehabilitation.
Riffle and pool complex: Riffle and pool complexes are special
aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes
sometimes characterize steep gradient sections of streams. Such stream
sections are recognizable by their hydraulic characteristics. The rapid
movement of water over a course substrate in riffles results in a rough
flow, a turbulent surface, and high dissolved oxygen levels in the
water. Pools are deeper
[[Page 56299]]
areas associated with riffles. A slower stream velocity, a streaming
flow, a smooth surface, and a finer substrate characterize pools.
Riparian areas: Riparian areas are lands adjacent to a waterbody.
Riparian areas are transitional between terrestrial and aquatic
ecosystems, through which surface and subsurface hydrology connects
waterbodies with their adjacent uplands. Riparian areas are adjacent to
streams, lakes, and estuarine-marine shorelines and provide a variety
of ecological functions and services and help improve or maintain local
water quality. (See general condition 20.)
Single and complete project: The term ``single and complete
project'' is defined at 33 CFR 330.2(i) as the total project proposed
or accomplished by one owner/developer or partnership or other
association of owners/developers (see definition of independent
utility). For linear projects, the ``single and complete project''
(i.e., a single and complete crossing) will apply to each crossing of a
separate water of the United States (i.e., a single waterbody) at that
location. An exception is for linear projects crossing a single
waterbody several times at separate and distant locations: each
crossing is considered a single and complete project. However,
individual channels in a braided stream or river, or individual arms of
a large, irregularly shaped wetland or lake, etc., are not separate
waterbodies, and crossings of such features cannot be considered
separately.
Stormwater management: Stormwater management is the mechanism for
controlling stormwater runoff for the purposes of reducing downstream
erosion, water quality degradation, and flooding and mitigating the
adverse effects of changes in land use on the aquatic environment.
Stormwater management facilities: Stormwater management facilities
are those facilities, including but not limited to, stormwater
retention and detention ponds and best management practices, which
retain water for a period of time to control runoff and/or improve the
quality (i.e., by reducing the concentration of nutrients, sediments,
hazardous substances and other pollutants) of stormwater runoff.
Stream bed: The substrate of the stream channel between the
ordinary high water marks. The substrate may be bedrock or inorganic
particles that range in size from clay to boulders. Wetlands contiguous
to the stream bed, but outside of the ordinary high water marks, are
not considered part of the stream bed.
Stream channelization: The manipulation of a stream's course,
condition, capacity, or location that causes more than minimal
interruption of normal stream processes. A channelized stream remains a
water of the United States.
Structure: An object that is arranged in a definite pattern of
organization. Examples of structures include, without limitation, any
pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater,
bulkhead, revetment, riprap, jetty, artificial island, artificial reef,
permanent mooring structure, power transmission line, permanently
moored floating vessel, piling, aid to navigation, or any other
obstacle or obstruction.
Tidal wetland: A tidal wetland is a wetland (i.e., water of the
United States) that is inundated by tidal waters. The definitions of a
wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR
328.3(f), respectively. Tidal waters rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters end where the rise and fall of the water surface
can no longer be practically measured in a predictable rhythm due to
masking by other waters, wind, or other effects. Tidal wetlands are
located channelward of the high tide line (i.e., spring high tide line)
and are inundated by tidal waters two times per lunar month, during
spring high tides.
Vegetated shallows: Vegetated shallows are special aquatic sites
under the 404(b)(1) Guidelines. They are areas that are permanently
inundated and under normal circumstances have rooted aquatic
vegetation, such as seagrasses in marine and estuarine systems and a
variety of vascular rooted plants in freshwater systems.
Waterbody: For purposes of the NWPs, a waterbody is a
jurisdictional water of the United States that, during a year with
normal patterns of precipitation, has water flowing or standing above
ground to the extent that an ordinary high water mark (OHWM) or other
indicators of jurisdiction can be determined, as well as any wetland
area (see 33 CFR 328.3(b)). An OHWM is a line on the shore established
by the fluctuations of water and indicated by physical characteristics,
or by other appropriate means that consider the characteristics of the
surrounding areas (see 33 CFR 328.3(e)). If a jurisdictional wetland is
adjacent--meaning bordering, contiguous, or neighboring--to a
jurisdictional waterbody displaying an OHWM or other indicators of
jurisdiction, that waterbody and its adjacent wetlands are considered
together as a single aquatic unit (see 33 CFR 328.4(c)(2)). Examples of
``waterbodies'' include streams, rivers, lakes, ponds, and wetlands.
[FR Doc. 06-7986 Filed 9-25-06; 8:45 am]
BILLING CODE 3710-92-P